Court File and Parties
Court File No.: FS-22-00000029-0000 Date: 2023 06 28
Ontario Superior Court of Justice
Between:
JASON RAMPERSAUD Applicant
Counsel for Applicant: Frances M. Wood
- and -
ANNISSA ADAMS Respondent
Counsel for Respondent: Self-Represented
Heard: June 5, 2023, In person
Reasons for Judgment
DALEY J.
[1] The applicant father brought a Motion to Change with respect to the parties’ parenting time with their children.
[2] The applicant sought to change the terms of the divorce order of Gibson J of June 24, 2021, which included the terms of a Separation Agreement dated June 17, 2021, with regard to the parenting time for the parties’ children Mariyah Jayde Adams, born December 7, 2009, and Kamran John Adams, born October 27, 2011.
[3] Although the applicant’s Motion to Change was filed many months ago, in April 2023, just prior to the return of the applicant’s motion the respondent also filed a Motion to Change. This Motion to Change was not scheduled to be heard at the same time as the applicant’s motion, however as the issues raised in the respondent’s Motion to Change overlapped and dovetailed with several of the issues on the applicant’s motion, the respondent’s motion was considered at the same time.
[4] On his Motion to Change the applicant asserts that there has been a material change which warrants a revision to the terms of the order of Gibson J and that the changes sought are in the best interests of the parties’ children.
[5] In summary, the changes sought by the applicant are as follows:
(a) that the children of the marriage reside primarily with the applicant; (b) that the children will reside with the respondent as arranged between the applicant and respondent from time to time; (c) that enrollment in extra-curricular activities shall be an incident of decision-making; (d) that the applicant may travel with the children without restriction; (e) that commencing February 1, 2022, and on the first day of each month thereafter the respondent shall pay child support to the applicant in the amount of $597 per month for the support of the children based on imputed income of $40,000 annually and the Child Support Guidelines; (f) that commencing February 1, 2021, the applicant shall be entitled to claim any and all tax benefits, credits, grants and other funds to which the children may be entitled.
[6] In addition to the changes set out above, the applicant also requests the court’s assistance in implementing a term of the order of Gibson J, namely at paragraph 21 of that order which provided that the applicant would apply to change the children’s surnames to Adams-Rampersaud. The evidence is that the respondent has refused to sign the necessary documents to give effect to this provision in the divorce order.
[7] In her response to the Motion to Change in addition to disputing the motion in its entirety, the respondent also requested: (a) that the children be allowed to have a voice through counsel or by counsel appointed through the Office of the Children’s Lawyer. In addition during submissions the respondent also urged that a Voice of the Child Report be obtained; (b) that the children be permitted to travel to British Columbia to stay with the respondent where she now currently resides during the summer of 2023 for a period of four weeks; (c) that the respondent’s child support obligation be recalculated based on her actual income; (d) that her contribution to section 7 expenses be recalculated based on her actual income; (e) that the court grant any other order that would allow her to reunite with her children.
[8] The respondent’s Motion to Change seeks the same relief as outlined above which was set forth in her response to the applicant’s Motion to Change.
[9] At the outset of the hearing of these motions, counsel for the applicant raised an evidentiary issue that needed to be addressed, specifically in respect of the affidavit evidence submitted by the respondent.
[10] In the affidavit evidence submitted by the respondent there were many instances where she recounts statements allegedly made to her by her mother and by the children. Counsel for the applicant opposed the admissibility of any of this hearsay evidence.
[11] Having considered the disputed evidence in question, and before commencing their submissions on the motions, I made an evidentiary ruling whereby any hearsay evidence contained in the affidavit material submitted by the respondent, allegedly originating with her mother or the children, would be excluded from my consideration on the basis that the proposed evidence was inadmissible hearsay.
[12] While the respondent wished to advance what she perceived to be the best interests of the children, recounting statements allegedly made by the young children in her affidavit was not appropriate given the nature of the motions seeking to change a final order of divorce and its ancillary terms: Chrisjohn v. Hillier, 2021 ONSC 1666 at paras. 12 – 20.
[13] Furthermore, as the motions before the court were Motions to Change an existing final order, which had been entered into on a consent basis and in accordance with the parties’ Separation Agreement, I concluded that it was neither necessary nor appropriate that the Office of the Children’s Lawyer be invited to provide its assistance nor that a Voice of the Child Report be requested.
[14] Thus, the motions proceeded on the evidentiary record adduced by both parties subject to my ruling referenced above.
[15] The parties were married in October 2008 and separated in April 2015.
[16] Following lengthy and high conflict litigation, the parties were able to resolve all outstanding issues at a mediation, with the assistance of counsel and in accordance with the agreement achieved at the mediation the parties entered into a Separation Agreement which was later incorporated in the final order of divorce of June 24, 2021.
[17] The salient terms of the separation agreement as they relate to the Motions to Change include: (a) the applicant would make parenting decisions regarding the children after consultation with the respondent; (b) the respondent would spend increasing amounts of parenting time with the children such that by mid-November, 2021 they would be residing on a 50/50 week about schedule; (c) the parties would schedule the children in one extra-curricular activity each; (d) the Separation Agreement also provided general terms and conditions regarding travel, children’s documents and other ancillary terms.
[18] Although the divorce order provided that either party may seek to vary any terms, it was agreed they would first engage in alternative dispute resolution. The respondent has refused to comply with that term of the divorce order and as such the applicant proceeded with his Motion to Change.
[19] As a result of circumstances where the respondent refused to return the children to the applicant following her parenting time, an order was made by Emery J on July 7, 2022, which provided that the children would reside primarily with the applicant and that he could travel with the children without the respondent’s consent and that he could schedule extra-curricular activities incident to decision-making. Furthermore, the applicant’s child support obligation was terminated on an interim basis.
[20] The evidence is that the children have resided with the applicant since the fall of 2020.
[21] It is undisputed that in the fall of 2021 the respondent advised that she had planned to travel to British Columbia for an extended period of time. She was absent from Ontario for the month of October 2021 and at some point in time she gave up her residential lease and did not have any stable housing or residence. For several months following her return to Ontario she did not have housing that would allow for parenting time with the children.
[22] In January 2022, the respondent left Ontario permanently and has resided since that time in Squamish, British Columbia.
[23] Since the respondent’s move to British Colombia, she has established a new relationship and has had a child with her new partner.
[24] It is the evidence of the applicant, which is not disputed by the respondent, that the children are thriving, and both are doing well in school and socially.
[25] The applicant readily acknowledges that it is important and appropriate that the children have extended time with the respondent during the summer months, however he opposes any parenting time which would involve the children traveling to British Columbia to spend time with the respondent, given the respondent’s history of withholding the return of the children contrary to court orders and parenting schedules.
[26] Turning to the relief sought on his Motion to Change, I have concluded that there has in fact been a material change in circumstances resulting from the respondent’s permanent change of residence from Ontario to British Columbia. This makes the 50/50 parenting regime completely unworkable and warrants the granting of the change order requested by the applicant.
[27] As to what parenting arrangement would be in the best interest of the children – I have concluded that a parenting arrangement where the children reside primarily with the applicant, where they have been residing principally for more than two years, would best serve and promote the best interests of the children.
[28] Further I have concluded that in order to maintain a strong and close relationship with the respondent, the children should have as much parenting time with the respondent as can be arranged between the applicant and respondent from time to time, however given the respondent’s history of unilaterally withholding the children from the applicant, that parenting time should be in Ontario, with a gradual increase in parenting time in Ontario and eventually with the parties’ agreement the children traveling to British Columbia to spend time with the respondent at her home.
[29] As to child support, I have concluded that the applicant’s obligation to pay child support should end effective February 1, 2022, and that commencing February 1, 2021, the applicant shall be entitled to claim any and all tax benefits, credits and grants and other funds to which the children may be entitled.
[30] The respondent seeks to change her child support obligation which was established on consent in the final order of divorce based on imputed annual income of $40,000, however the evidentiary record submitted by her discloses no material change in circumstances that would warrant any modification to her child support responsibilities. At the time the divorce order was granted and the separation agreement entered into, the respondent was not employed but had agreed to an imputed income of $40,000 per annum. There has been no change in her situation from the time of the divorce order and as such no modification to this term should be granted.
[31] Therefore, commencing February 1, 2022, and on the first day of each month thereafter, the respondent shall pay child support to the applicant in the amount of $597 per month for the support of the children, based on an imputed income of $40,000 annually and the Child Support Guidelines.
[32] As to the implementation of the children’s name change provided for in the divorce order, I have concluded that there is no reason for the respondent refusing to sign all the necessary documentation in order to carry out the terms of that order and that obligation to do so existed at the time the divorce order was granted. The passage of time and the age of the children as of now should have no bearing on this and as such it is ordered that the consent of the respondent to the name change, with which she agreed to should be dispensed with.
[33] As to the other relief sought by the respondent both in her Motion to Change and her response to the applicant’s Motion to Change, as already noted, I see no basis upon which to seek the appointment of the Office of the Children’s Lawyer or to request a Voice of the Child report.
[34] As to summer parenting time, as already noted the applicant fully supports the children spending time with the respondent during the summer of 2023. At the close of submissions on these motions, counsel for the applicant and the respondent both confirmed that the parties were involved in direct discussions for the purpose of establishing parenting time, in Ontario, this summer and that that would be established on consent. Thus, I make no order as to the date of the commencement of that parenting time nor its duration as I was advised that there was no need to do so given the parties were working on an agreement.
[35] By way of more general comments regarding the Motions Change, I have observed that both parties are clearly loving, and caring parents and I believe that the children’s best interest will be well served by the parenting and residential plan established in this decision. The respondent is clearly satisfied that the applicant is a loving and caring father as she openly expressed this in her submissions when she thanked him for all that he has done for the benefit of the children. Despite these kind words to the applicant, the respondent clearly has difficulty in recognizing and dealing with her separation from her children. However, she made the decision to establish a new relationship, have a child with her new partner and to move permanently to British Columbia, all of which make it far more challenging for her to have parenting time with the children.
[36] In the result, the applicant’s Motion to Change is granted on the terms set out above. The respondent’s Motion to Change is dismissed for the reasons expressed. An order shall issue in accordance with these reasons and approval as to form and content of the draft order by the respondent is dispensed with. A copy of the proposed order may be submitted to me through my administrative assistant for my signature.
[37] In the event the parties cannot resolve the issue of costs, counsel for the applicant shall serve and file within 20 days submissions of no longer than two pages along with a costs outline, with similar submissions to be filed by the respondent within 20 days thereafter. No reply submissions are to be filed.
Daley J. Released: June 28, 2023