Court File and Parties

Court File No.: FC-20-025 Date: 2023/08/01 Superior Court of Justice - Ontario

Re: E. N., Applicant And: S. N., Respondent

Before: Justice M. Fraser

Counsel: Rebecca E. Rosenstock, Counsel for the Applicant M. Peter Sammon, Counsel for the Respondent Lori Gutoskie, Counsel for the Office of the Children’s Lawyer

Heard: July 31, 2023

Endorsement

[1] The Respondent father, S.N. (the “Respondent”) brings a motion for the following orders:

1. That the Respondent be provided with additional parenting time with the younger children Annika age 10, and Adam age 7 over the summer school holiday (August), in accordance with the schedule set out in Exhibit “A” to the Respondent’s Affidavit sworn July 12, 2023;
2. That the canoe presently in the Applicant mother, E.N. (the “Applicant”) ‘s possession be delivered to the Respondent for recreational use by the Respondent with the children;
3. That Annika’s iPhone password be given to the Respondent; and
4. That the Respondent’s child support payments be adjusted prospectively and retroactively, as set out in the Respondent’s Affidavit herein given that two children (Madeline and Thomas) have no longer been residing with the Applicant mother, and one child (Jeremiah) has been residing with the Respondent and adjusting payment of the expenses for the matrimonial home which is occupied by the Applicant.

Background

[2] This application has been ongoing since January 2020. It has been the subject of many motions for interim relief. The parties have been afforded the benefit of a several settlement conferences on no less than three different dates. In other words, considerable court resources have been afforded to the parties to date. Notwithstanding this, they have not been able to resolve the outstanding issues.

[3] I note that they were urged as early as October 22, 2021 to move this matter forward to a final hearing in order to bring their differences to its proper conclusion. Unfortunately, parties remain engaged in the present litigation.

[4] The parties were married on June 8, 2002.

[5] They have six children: Madeline, age 20, Thomas, age 18, Jeremiah, age 16, Genevieve, age 14, Annika age 10 and Adam Age 7.

[6] The parties separated on May 17, 2018.

[7] The Respondent is employed full time as a professor at Our Lady Seat of Wisdom college in Barry’s Bay which is a non-profit Catholic religious institution. He worked in this capacity throughout the marriage as well.

[8] The Applicant, for the most part, did not work during the marriage. She has recently begun casual part-time employment. The Respondent asserts that the Applicant is capable of finding full time employment earning at least minimum wage.

[9] During the marriage the parties lived in Barry’s Bay. The Applicant is currently residing with the three youngest children (Genevieve, Annika, and Adam) in the matrimonial home.

[10] Genevieve does not presently have ongoing contact with the Respondent.

[11] Annika and Adam follow a modified version of an interim parenting time schedule ordered in June 2020. They spend every second weekend, every alternate Wednesday overnight, and every other alternate Wednesday evening with the Respondent. This schedule was modified in March of 2021. At that time the parties were instructed to work towards additional access arranged in informal ways accompanied by the removal of the previously mandated Wednesday overnight visits.

[12] The two oldest children (Madeline and Thomas) both presently attend Carleton University. They receive OSAP grants, scholarships and with summer employment, the Respondent maintains they are self-supporting and have removed themselves from parental control.

[13] Since May 2022, Jeremiah has been residing primarily with the Respondent.

[14] The Respondent asserts that the Applicant is undermining his relationship with the children and that she has not fostered any additional parenting time between the Respondent and the children.

[15] The Applicant disputes this. She asserts that the ongoing parenting schedule between the Respondent and the children has been challenging and that the children frequently do not wish to attend. She claims to receive telephone calls almost every visit from the children asking to be picked up early, and that there are continuing concerns respecting the Respondent’s ability to assist with the maintenances of Annika’s diabetes and other health concerns.

Child Support

[16] Initially, the Respondent paid child support for the six children of the marriage in the amount of $989.28 per month based upon a reported income of $33,800.00 pursuant to my order of December 8, 2020.

[17] On August 17, 2021, James J. ordered that commencing September 2021, the support would be varied, and that the Respondent would pay $1126.13 per month for the 5 youngest children anticipating that this amount would be increased to $1,246.33 when Madeline returned from her year at university for the summer. This is what is presently being paid.

[18] The Respondent maintains that the order for support should be adjusted (including a retroactive recovery for an assert overpayment of support) based upon there being two children now attending university and receiving sufficient funding to not require support, the change in primary residence of Jeremiah to the Respondent’s home, and the fact that his income for 2021 was $38,977.00, not the projected income of $40,374.26.

[19] The Respondent also asserts that he continues to pay for ½ the monthly mortgage payment on the matrimonial home. The Applicant has had exclusive possession of this home for the past five years. He asks that she be required to pay the whole of the monthly mortgage less the amount payable as principle as well as ½ of the unsecured joint line of credit. (I note the Respondent asks for this relief in his affidavit materials but did not ask for this relief in his notice of motion)

[20] The Respondent’s line 150 income for 2022 was $41,483.99.

[21] This issue resolved during the course of the hearing of the motion. On a without prejudice basis, the Applicant agreed that the child support payable by the Respondent to the Applicant would be reduced to the Child Support Guideline table amount for three children based upon the Respondent’s income of $41,483.99 which amounts to $831.23 per month. As such a temporary order will issue on that basis commencing August 1, 2023.

Canoe

[22] The Applicant maintains that the canoe is not useable. As such, they agree the Respondent can take it if he chooses and list it as an asset he has retained.

Password

[23] The Applicant asserts that Annika’s phone does not have a password to access its contents but does use a password to restrict her time on various apps. It is agreed that both parties shall be entitled to the passwords for any technology used by Annika while having parenting time with them.

Summer Parenting Time

[24] The Respondent asks for additionally summertime access and proposes a 50/50 sharing of the parenting time with the children. He additionally proposes during this time to bring the children to visit family in Ohio.

[25] The Applicant has proposed to increase the Respondent’s summer parenting time according to a schedule which she provided on May 17, 2023. It resembles the schedule that the parties have followed over the past few years. The proposal entails every other weekend being expanded to include Monday and every other Wednesday evening visit to expand to include two overnights and a full two days with the Respondent.

[26] The Applicant opposes the Respondent’s summer parenting proposal. In particular she opposes Annika and Adam being away from her for extended periods of time as she asserts that this is contrary to their comfort level. She opposes the Respondent travelling with the children to Ohio. She asserts that the children are not accustomed to long overnight stays away from home and she is particularly concerned about the Respondent’s ability to manage Annika’s diabetes, her ADHD medication, and her need for a gluten free diet due to the GI issues caused by celiac disease.

[27] An affidavit of Carmela Savoia sworn July 21, 2023 was filed on behalf of the Office of the Children’s Lawyer. She met the children in her capacity as the OCL Clinical Assist to Ms. Gutoskie. Neither Annika nor Adam wish to expand upon the parenting time spent with the Respondent beyond what is proposed by the Applicant. Both report a perception that the Respondent does not respect their boundaries. They report a comfort level with spending time in the summer with the Respondent as they have with past summers. They do not resist or object to having ongoing parenting time with the Respondent. However, they are content with the arrangement as it is presently. They do not wish that the parenting time with the Respondent be expanded. Ms. Savoia has met with Annika and Adam on a number of occasions and their views have been consistent.

[28] With respect to the trip to Ohio proposed by the Respondent, Ms. Savoia reports that Annika and Adam do not wish to go. Ms. Savoia reported that both expressed their reasons clearly, articulately and with language appropriate for their age.

[29] In making any decisions with respect to a parenting order, I am governed by the best interests of the children. 1

[30] I am also governed by a number of principles that have developed in relation to motions to vary interim orders. Interim, or temporary orders, are by their nature imperfect solutions to often complex problems. They are based on limited evidence, typically in affidavit form. Interim motions require a judge to embark upon the near impossible task of attempting to assess the relative merits of the position of parties who have filed numerous affidavits contradicting the affidavits of the other. That affidavit evidence is untested and often impossible to reconcile.

[31] Because of this, interim motions are meant to provide “a reasonably acceptable solution to a difficult problem until trial” 2

[32] There is, therefore, a heavy onus on a party who seeks to vary a temporary order essentially replacing one imperfect solution with another imperfect solution pending trial . 3 The rationale for this is based upon the understanding that this (i) ensures that important and difficult decisions relating to a child's best interests are not, save for exceptional circumstances, made on the basis of incomplete information, (ii) limits the amount of judicial resources that are allocated to cases which have already been resolved by way of a court order, and (iii) ensures that a child's routine and schedule are not turned upside down on a motion only to be potentially changed again at a final hearing.

[33] Interim motions should not become the focus of the parties’ litigation. 4 Temporary orders are intended to remain in effect until final disposition of the issues at trial. They are not intended to be tinkered with or varied save in appropriate circumstances. 5 As such, a substantial change in circumstances is typically necessary before a variation to a temporary order will be granted. 6

[34] In Greve v. Brighton, 2011 ONSC 4996, at para 24, Richetti J. wrote that the court should only vary the interim order “… where the moving party has a demonstrated change in circumstances and, as a result of those changed circumstances, there are compelling reasons that the order should be varied to meet the children’s best interests.”

[35] When considering whether a change to the interim orders providing for parenting time is in order, I believe it is important in this instance to consider this request in the context of the history of the present litigation.

[36] As stated, this proceeding was commenced in January 2020.

[37] A case conference in this matter was held June 30, 2020. A consent order was made providing for a division of parenting time on a without prejudice at that time.

[38] On December 8, 2020, two motions were advanced. A consent order was made respecting disclosure of documents from the Respondent and a without prejudice order was made providing for interim child support. The issues of child support and the Respondent’s motion for expanded parenting time were adjourned to February 2, 2021. On February 2, 2021 those motions were adjourned to March 2, 2021. On March 2, 2021, the motions were adjourned to March 15, 2021.

[39] On March 31, 2021, James J. heard the motions. An interim order was made for child support and interim parenting time. The issue of child support for M. was adjourned to be determined after the parties made further submissions.

[40] A decision concerning the issue of child support for Madeline was decided on an interim basis on May 17, 2021.

[41] The matter was then scheduled for a settlement conference on May 28, 2021. The parties adjourned the settlement conference to July 9, 2021. That conference was then adjourned again on that date and a consent order made which provided for the amendment of pleadings, disclosure, and questioning within 45 days. A temporary without prejudice order was also made providing for summer parenting time as well as leave for the Respondent to bring a motion for summer access if necessary. The summer parenting time was ordered to be as follows:

a. Week 1 (commencing July 16, 2021): Friday at 5pm-Monday at 5pm; b. Week 2: (commencing Wednesday July 21, 2021): Wednesday at 5pm-Friday at 5pm.

[42] The Respondent then brought a motion for further summer parenting time, expanded parenting time during the school year and for a determination of the issue of continuing child support for Madeline. That motion was returnable on August 17, 2021. Given the lateness in the summer, the Respondent did not pursue the issue of expanded summer parenting time. The motion concerning the school-year parenting time for Annika and Adam was adjourned to October 5, 2021.

[43] The Respondent’s motion for expanded parenting time was heard by me on October 5, 2021. I did not find there to be a sufficiently compelling reason to vary the existing interim order as it pertained to the parenting time previously ordered. I note that I urged the parties to agree upon a timeline and complete any questioning so that this matter could move toward conducting a settlement conference, and if necessary, proceed to trial. It was clear to me at that juncture that this matter was becoming mired in repeated interim motions and that the matter needed to move toward a proper final adjudication.

[44] Both parties advanced further motions returnable on March 8, 2022 respecting medical/health decision making authority. On that date, the Applicant’s motion was adjourned to a long motion date and ultimately granted on April 1, 2022. The Respondent withdrew his motion.

[45] Two 14B motions were then brought. The Applicant’s motion sought to bifurcate the issues in order to expedite the parenting issues. The Respondent’s motion sought a timeline for questioning and proposed that a settlement conference on all issues be scheduled. Hooper J. declined to bifurcate the issues. She ordered that questioning be completed by October 31, 2022 and that the matter proceed to a settlement conference to be scheduled through the trial coordinator.

[46] A settlement conference was then held on all issues on February 24, 2023. It was then adjourned to be continued on March 9, 2023.

[47] On March 9, 2023, the settlement conference was continued and then further adjourned to continue further on April 4, 2023. At that time, as part of Hooper J.’s endorsement she granted leave to the parties to bring a motion addressing various issues, including summer parenting time and to address disclosure issues, the enforcement of earlier orders, and the commission of a section 30 report provided the motion date was sought by May 15, 2023 and brought at the first available date after May 15th. There is some dispute between the parties as to whether a motion date was sought within the time required.

[48] Hooper J. also ordered on April 4, 2023 that any questioning occur before August 31, 2023. I was advised at the hearing of this motion on July 31, 2023 that the parties have not yet scheduled dates for questioning despite their ongoing intention to each require questioning of the other party. This is not the first timeline provided to the parties to complete any questioning and I doubt this timeline will be met. While the Applicant’s counsel explained that part of the difficulty was that the Respondent had not made proper disclosure, I question why no steps have then been taken to obtain orders to compel the disclosure in a timely fashion.

[49] In any event, not only does the Respondent seek to vary the interim parenting order, but he asks the court to do so after the parties have been provided exhaustive efforts by the courts to resolve the issues between them at the settlement conferences. The parties do not agree on what is appropriate parenting time for the Respondent, even during the summer, and they do not agree upon what weight should be given to the children’s views.

[50] In my view, permitting the parties to continue to litigate by motion does a great disservice to the children. They need to be extricated from this dispute. A decision needs to be made concerning what arrangement is in their best interests with the benefit of a full evidentiary record in a hearing where the credibility and strength of the evidence can be properly assessed.

[51] I do not see that there has been any change in circumstances which supports a compelling reason to vary the orders at this time. The parties’ failure to address moving this matter forward to a trial seems to be the reason necessitating multiple returns for temporary orders. Continually permitting such motions, in my view, only serves to encourage the inertia. This matter needs to proceed to a trial where the outstanding issues can be properly adjudicated,

[52] It may be that, following a trial, a different parenting arrangement will be determined, including a different parenting arrangement summer vacation time and it may very well include extended periods for travel. However, pending a trial, the present arrangements are suitable and permitted repeated changes to the terms only serves to encourage continued interim motions when the parties should instead focus on bringing this matter to a conclusion by a settlement or a trial.

[53] As such the Respondent’s motion on the issue of summer parenting time, including his request to travel with Annika and Adam to Ohio shall be dismissed.

Disposition

[54] A temporary order shall issue as follows:

1. On consent, and on a without prejudice basis, the child support payable by the Respondent to the Applicant shall be reduced $831.23 per month commencing August 1, 2023 and payable on the first day of each month thereafter pending further order;
2. The Respondent is to arrange to pick up the canoe from the matrimonial home;
3. Both parties shall provide the other with any passwords for technology being used by one of the children while in their care; and
4. The balance of relief sought in the Respondent’s motion is dismissed.

[55] I consider the success of this motion to be divided and that each party should bear their own costs in the circumstances. However, if the parties wish to make submissions on the issue of costs, then the Applicant may file submissions concerning costs on or before August 14, 2023. The Respondent may file submissions concerning costs on or before August 21, 2023. The submissions of both parties shall be no more than three pages in length, double-spaced, plus any offers to settle and bills of costs. If there are no submissions received by August 21, 2023 then there shall be no order as to costs.

M. Fraser J. Date: August 1, 2023