Court File and Parties
COURT FILE NOS.: FS-13-386220 DATE: 20230619 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: RUSI JAMSHED KAPADIA. Applicant AND: ALISON JOANNE KWOK, Respondent
BEFORE: M. D. Faieta J.
COUNSEL: Applicant, Self-represented Respondent, Self-represented
HEARD: June 19, 2023
Endorsement
Faieta J.
[1] The Applicant father brings a motion to change a parenting order to increase the amount of parenting time that he has with his 10-year-old son, RK, so that RK “… primarily resides with the respondent during the school year and spends approximately half his time living with each parent at other times during the year”.
[2] This motion proceeded solely on the basis of various affidavits exchanged by the parties.
Background
[3] The parties separated in February 2012 after almost three years of marriage. Both parties are professional engineers.
[4] Their son, RK, was born on September 23, 2012. RK has primarily resided with the Respondent mother since his birth.
[5] On October 9, 2015, the following consent Final Order was granted by Chiappetta J.:
THIS COURT ORDERS THAT:
The parties, namely Rusi Jamshed Kapadia (Applicant) and Alison Joanne Kwok (Respondent) consent to a final order as follows:
The parties shall share joint custody of the child of the marriage, namely Rylan Anderson Kwok, born September 23, 2012 (Rylan).
The parties shall use the following dispute resolution mechanism in addressing any issues with respect to custody: (a) The parties shall first try and resolve the issue through direct negotiation (with or without counsel); (b) The parties shall involve related experts and/or professionals to assist the parties in making a decision; (c) If the parties continue to disagree twenty (20) days after the parenting issue has arisen, then either party may engage Bev LeMay, or another agreed upon parenting coordinator, to assist in resolving the issue; (d) If there is an immediate issue that requires a timely response, the parties may go directly to Bev LeMay to mediate the issue.
Rylan primarily resides with the Respondent.
The Applicant shall have parenting time with Rylan as follows: (a) Each Tuesday from 6:00 p.m. to 9:00 p.m. The Applicant shall pick up Rylan at 6:00p.m. and Respondent shall pick up Rylan at 9:00 p.m. (b) Each Saturday from 9:00 a.m. to 3:00 p.m. The Respondent shall drop off Rylan at 9:00 a.m. and Applicant shall drop off Rylan at 3:00 p.m. (c) Alternate Sundays from 9:00 a.m. to 3:00 p.m. with drop off of Rylan in accordance with 4 (b) above.
The parties shall continue to work with Bev LeMay to implement a progressive parenting plan.
Commencing November 1, 2015, the Applicant shall pay child support of $753.00 to the Respondent for Rylan based on his income of $83,822.60 per Annum.
The parties shall continue to share agreed upon special expenses for Rylan proportionate to income.
The parties shall exchange tax returns and notices of assessment by June 1 each year and review the quantum of child support payable.
The Applicant shall pay the Respondent $60,000.00 as a full and final property and spousal support settlement. The full $60,000.00 must be paid to the Respondent by cheque by November 9, 2015.
Within thirty (30) days the Applicant shall withdraw all claims from his Application except for a Divorce.
Within thirty (30) days, the Respondent shall withdraw all claims from her Answer and allow the Divorce to proceed on an uncontested basis.
Rylan’s last name shall be changed from “Kwok” to Kapadia Kwok”. The Applicant shall pay all expenses related to the name change. The Respondent shall complete the name change in a timely manner. She shall order the name change package within ten (10) days. She shall complete the name change application package within forty (40) days of receiving same. The Respondent shall keep the Applicant informed with respect to the status of the application.
Unless the Support Order and Support Deduction Order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the Support Order shall be paid to the Director, who shall pay them to the party to whom they are owed.
If the parties agree to withdraw of the Family Responsibility Office at any time, they both are required to file with the Office of the Director of the Family Responsibility Office a separate written request consenting to the withdrawal of the Support Order and the Support Deduction Order.
For as long as child support is to be paid, the Payor (and the Recipient, if applicable) must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this Order, in accordance with section 24.1 of the Child Support Guidelines.
This order bears post-judgement interest at the rate of 2% per year effective from the date of this order. The payment in default shall bear interest only from the date of default.
[6] On October 19, 2016, as contemplated by paragraph 5 of the Order, the parties agreed upon a Parenting Plan Agreement with the assistance of a therapist, Bev LeMay. It provides that RK shall spend every other weekend with the Applicant father from Friday at 6:00 pm until Sunday at 3:00 pm.
Position of the Parties
[7] The Applicant father states that he “now has the flexibility to work from home” and thus there has been a “material change in the circumstances” within the meaning of s. 17(5) of the Divorce Act, R.S.C. 1985, c. 3 (2nd. Supp.). He also submits that about 7 ½ years have passed since the issuance of the Final Order and that the child’s parenting arrangements should reflect that RK is a 10-year-old and is completing Grade 5. The Applicant father asks that he have equal parenting time with RK during each summer effective immediately and during the school year commencing in Grade 7.
[8] The Respondent mother states she has been RK’s primary caregiver. The 2016 Parenting Plan allows both parents to spend quality time with RK while also allowing RK to thrive in his school community and with his friends. The Respondent also states that the Applicant has repeatedly not fully utilized his allotted vacation time with RK. The Respondent states that the Applicant continually makes last minute requests for change to the parenting schedule and that she has shown flexibility on many occasions. However, such requests are disruptive to both her and RK.
[9] The Respondent submits that there has not been a material change in circumstances since the Final Order or the Agreement.
[10] The Respondent mother is amenable to equal parenting extension during the summer vacation and certain holidays throughout the year. However, she submits that a significant expansion of regular parenting time will be disruptive to RK’s routine which he has followed for the last six years. The Respondent proposes that the Applicant father’s parenting time on alternating weekends be expanded by 4 hours so that it runs from after school on Fridays to Sundays at 7:00 pm. She also proposes that the Applicant’s parenting time be expanded 15 minutes on alternate Thursdays from after school to 7:00 pm.
Analysis
[11] Subsection 17(5) of the Divorce Act states:
Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9).
[12] If there has been a material change in circumstances, then the court must consider what parenting order is in the best interests of the child. Section 16 of the Divorce Act states:
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
Primary consideration
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
Factors to be considered
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
Parenting time consistent with best interests of child
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
[13] In Gordon v. Goertz, [1996] 2 S.C.R. 27, at paras 49-50, McLachlin J. as she then was stated:
49 The law can be summarized as follows:
- The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
- If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
- This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
- The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.
- Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.
- The focus is on the best interests of the child, not the interests and rights of the parents.
- More particularly the judge should consider, inter alia: (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; (c) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child; (f) disruption to the child of a change in custody; (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?
Issue #1: Has the threshold been satisfied?
[14] The test for whether there has been a material change in the circumstances of the child was described as follows in Goertz, at paras 10-13:
10 Before the court can consider the merits of the application for variation, it must be satisfied there has been a material change in the circumstances of the child since the last custody order was made. Section 17(5) provides that the court shall not vary a custody or access order absent a change in the "condition, means, needs or other circumstances of the child". Accordingly, if the applicant is unable to show the existence of a material change, the inquiry can go no farther: Wilson v. Grassick (1994), 2 R.F.L. (4th) 291 (Sask. C.A.).
11 The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its discretion for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued: Baynes v. Baynes (1987), 8 R.F.L. (3d) 139 (B.C. C.A.); Docherty v. Beckett (1989), 21 R.F.L. (3d) 92 (Ont. C.A.); Wesson v. Wesson (1973), 10 R.F.L. 193 (N.S. T.D.), at p. 194.
12 What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), 35 R.F.L. (3d) 169 (B.C. S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I. S.C.). Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. "What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place": J.G. McLeod, Child Custody Law and Practice (1992), at p. 11-5.
13 It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
[15] Further, a variation of a final parenting order cannot be made on consent unless there is a finding of a material change in circumstances. In Persaud v. Garcia-Persaud, 2009 ONCA 782, the Ontario Court of Appeal stated:
[3] To begin with, the motion judge was without jurisdiction to make the order in question. As this court has made clear, jurisdiction to vary a custody and access order is dependent on an explicit finding of a material change in circumstances since the previous order was made. If an applicant fails to meet this threshold requirement, the inquiry can go no further: see Litman v. Sherman (2008), 2008 ONCA 485, 52 R.F.L. (6th) 239 (Ont. C.A.). The matter is jurisdictional and a court must make a finding of a material change in circumstances even when, as here, both parties request a variation. In the present case, no such finding was made. Thus, as has been stated, the motion judge was without jurisdiction to vary the original order.
[4] A material change in circumstances is one which: (1) amounts to a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) materially affects the child; and, (3) was either not foreseen or could not have been reasonably contemplated by the judge making the original order: see Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 13. None of these factors are addressed in the brief reasons of the motion judge nor can they be found on a broader reading of the record as a whole, including the exchanges that the motion judge had with counsel. Indeed, it is highly questionable whether the third factor could have been made out, given the motion judge’s numerous statements to the effect that the issues and differences between the parties were but a rehash of that which he heard at the time he made the initial custody and access order.
[5] Moreover, on this record, it is not clear how these factors could have been determined, given the significant conflict in the affidavit evidence of the parties. In such circumstances, a variation motion cannot be properly determined on affidavit material. As this court has stated, resolution of conflicting evidence on critical matters requires a trial of the issues, in which viva voce evidence is called. See this court’s decision in Schnarr v. Schnarr (2006), 22 R.F.L. (6th) 52.
[16] A change in circumstances is “material” if it is significant and long lasting: Roloson v. Clyde, 2017 ONSC 3642, paras. 49-51.
[17] In his Form 15: Motion to Change, the Applicant father identifies one change in circumstance:
The Applicant is seeking to amend the parenting schedule because he feels it will be beneficial to his son, himself, the Respondent and to take advantage of a change in circumstances. The relevant change is that the Applicant now has the flexibility to work from home.
[18] The Respondent mother submits that the Respondent has failed to demonstrate a material change in circumstances. She states that the Applicant’s request that RK share his residence upon entering high school is “putting the cart before the horse”. RK has not entered high school and thus there is no basis to change the current parenting schedule.
[19] I find that the Applicant father has not discharged his onus to show a material change in circumstances. The Applicant father has provided no details regarding his flexibility to work nor an explanation regarding how this amounts to a material change of circumstance. Further, the fact that the Final Order was granted seven and a half years ago when RK was three years old does not itself automatically constitute a material change in circumstances: Brown v Lloyd, 2015 ONCA 46, para. 11.
[20] The Applicant’s motion to change is dismissed.
Section 7 Expenses
[21] In her Factum, the Respondent mother requests that an order be made requiring the Applicant father to pay his share of RK’s extracurricular activities and orthodontic expenses. This relief was not advanced in the Respondent’s Response to Motion to Change.
[22] As shown above, child support, including the payment of section 7 expenses, is addressed at paragraphs 6 and 7 of the Final Order.
[23] The Response to the Motion to Change does not request a change to support. However, in providing her views regarding the Applicant’s Motion to Change, the Respondent states that the parties should split the costs of RK’s extra-curricular activities. There is little evidence regarding this issue.
[24] I dismiss the relief sought by the Respondent given that it is not properly before this court.
Disposition
[25] At the end of the hearing of the Motion to Change, I advised the parties that their motions would be dismissed. The parties chose to enter into a further agreement regarding parenting time and section 7 expenses. I made it clear to the parties that their agreement would not be adopted into a court order.
Costs
[26] The Respondent seeks costs of $4,000.00. Her agent spent 11 hours of time by reviewing materials, preparing materials, such as her Factum, and appearing today. The Applicant submits that he sought to avoid this motion through discussion. The fixing of costs in a family law proceeding is governed by the touchstone considerations of reasonableness and proportionality: See Parmar v. Flora, 2023 ONSC 2327, at para. 4. The Respondent was the successful party on this motion and is presumptively entitled to her costs. I find that there was no bad faith by either party nor was there an offer to settle that would trigger full indemnity costs under Rule 18. While this case was important to the parties, the issues were not complex. Having regard to the factors described above, the objectives of a costs award in a family law proceeding and the touchstone considerations of reasonableness and proportionality, I find that it is just to order that the Applicant pay costs of $3,500.00, inclusive of disbursements and taxes, to the Respondent within 30 days.
Order
[27] Order to go as follows: (1) The Applicant’s Motion to Change is dismissed. (2) The Respondent’s motion for the payment of section 7 expenses is dismissed. (3) If either party brings a Motion to Change in respect of parenting time, then that party shall: (a) Confer with the other party at least seven months prior to bringing that motion. (b) Make best efforts to obtain a Voice of the Child Report in order to obtain RK’s views and preferences in respect of the relief sought at least six months before filing the motion. If the parties cannot agree on who should conduct that interview with RK or if they cannot agree to equally share the costs of the interviewer pending adjustment at trial, then a motion may be brought for directions. (c) Deliver an affidavit that, having regard to the provisions of the Divorce Act referenced above, describes the evidence that they rely on in relation to the issues of whether there has been a material change in circumstances and whether the best interests of the child is served by the proposed change to the Final Order. (d) Comply with any applicable dispute resolution process that they have agreed upon. (e) If needed, after the above steps have been completed, deliver an intake form to Mediate393.ca for the purpose of using their services to mediate the issue(s). (4) I find that it is just to order that the Applicant pay costs of $3,500.00, inclusive of disbursements and taxes, to the Respondent within 30 days.
Mr. Justice M. D. Faieta
Released: June 19, 2023