Lillington v. Lillington, 2023 ONSC 5036

Court File and Parties

COURT FILE NO.: FS-22-0241-00 DATE: 2023-09-06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Darren Stephen Lillington, Applicant v. Elizabeth Joy Lillington, Respondent

HEARD: In Thunder Bay by Zoom, August 31, 2023 BEFORE: Fregeau J.

COUNSEL: N. Sheik, for the Applicant C. Arnone, for the Respondent M. Petryshyn, for The Children’s Lawyer

Endorsement on Motions

Background

1The applicant and respondent were married on July 27, 2013, and separated on November 4, 2022. The parties are the parents of two children, ages 9 and 7. The parties are both social workers. The applicant is employed with the Dilico Family Health Team and the respondent is self-employed.

2On separation, the respondent and the children moved out of the matrimonial home and into her parents’ home. The applicant remained in the matrimonial home until it was sold on March 31, 2023.

3The respondent has brought a motion, dated July 12, 2023, and first returnable August 3, 2023. In her motion, the respondent is seeking, among other things:

1. Sole decision-making responsibility with the children residing primarily with her;
2. Supervised parenting time for the applicant;
3. An order for the children to attend counselling without the need for the applicant’s consent;
4. Child support and a proportionate contribution by the applicant to the children’s extraordinary expenses; and
5. An order that the remaining net proceeds from the sale of the matrimonial home be held in trust pending agreement of the parties or a court order for distribution.

4The respondent has also brought a motion, dated August 23, 2023, and first returnable August 31, 2023. In his motion, the applicant is seeking, among other things:

1. Shared decision-making responsibility;
2. Specified, unsupervised parenting time with the children, transitioning to a week on/week off rotation for parenting time;
3. An order that $30,000 from net proceeds held in trust be paid out to each party; and
4. An order that the parties obtain the written consent of the other prior to incurring s. 7 expenses for the children.

5At the return of both motions today, the respondent submitted that the issues of temporary decision-making responsibility and parenting time require a long motion date because argument will consume well in excess of one hour. Counsel for the respondent has secured a tentative long motion date of January 5, 2024. In the alternative to adjourning these issues to January 5, 2024, the applicant requests these issues be adjourned to allow responding materials to be placed before the court.

6The respondent further submits that the issues of counselling for the children, distribution of $30,000 to each party from net proceeds of sale from the sale of the matrimonial home and one aspect of s. 7 expenses for one of the children be argued today.

7The applicant submits that adjourning the issues of decision-making responsibility and parenting time to January 5, 2024, results in too long a delay.

8Following submissions as to the contested adjournment, I ordered that the two motions before the court be adjourned to January 5, 2024, at 10:00 a.m. for a three-hour hearing. In my view, the issues of temporary decision-making responsibility and parenting time require a dedicated long motion date to be properly addressed. Further, the delay resulting from the adjournment will allow the children to engage in counselling, which may provide some further information and assistance to the court on January 5, 2024.

9The following issues were argued before me today:

1. Where the children are to attend counselling and who their counsellor shall be;
2. Should $30,000 be distributed to each of the parties now from the net sale proceeds of the matrimonial home; and
3. Are the soccer expenses of one of the children a qualifying s. 7 expenses.

The Position of The Children’s Lawyer

10Ms. Petryshyn was appointed as the children’s lawyer on February 15, 2023, pursuant to an order made at the Case Conference. Ms. Petryshyn has met with the parties and the children. She intends to meet with the children again going forward and during their counselling.

11Ms. Petryshyn submits that for the counselling to be effective, the children require a counsellor who can relate to, and who’s focus is counselling children who are close in age to the children in this case, namely nine and almost eight years of age.

The Position of The Mother

12The mother submits that the children have an existing therapeutic relationship with Tammi Marsh at Hope Child Therapy. The mother contends that the children attended counselling with Ms. Marsh from October 2021 until January 2023, at which time the applicant withdrew his consent. After the applicant withdrew his consent for the children to be counselled by Ms. Marsh, the respondent initiated contact with Sullivan and Associates for continued counselling. However, the applicant refused to consent then and refuses to consent now for no articulated, substantive reason, according to the respondent.

13The respondent submits that Sullivan and Associates offers a variety of counsellors and counselling services, including child psychologists, and has the ability to respond to whatever issues the children present with.

14The respondent submits that it is premature to release further funds from the net proceeds of sale of the matrimonial home. The respondent submits that until the applicant’s employment pension is valued, it is impossible to determine if an advance of partial proceeds now will or will not jeopardize her entitlement to an equalization payment.

15The respondent notes that $20,000 was paid to each of the parties at the time the matrimonial home was sold. The respondent suggests that she is prepared to reconsider her position on this issue upon the sale of the parties’ recreational property (free and clear and currently listed for $235,000) and/or upon review of the applicant’s pension valuation.

16The respondent is agreeable to adjourning her claim for retroactive and ongoing contribution to the children’s s. 7 expenses until the January 5, 2024, hearing, but for her claim for the expenses of the parties’ son’s soccer activities.

17The respondent submits that their son started playing soccer at a “competitive level” and in an “elevated program” in the spring of 2023. The respondent submits that soccer at this level is important to their son’s mental health and that this is therefore a reasonably necessary expense.

The Position of The Father

18The applicant is not opposed to the children being enrolled in further counselling. The applicant proposes that the children be enrolled in “family counselling” with Dorset Pier Mental Health, specifically with Jennifer White.

19The applicant is opposed to the children attending Sullivan and Associates for counselling. The applicant deposes that his opposition stems from his “concerns” that the respondent has connections to Sullivan and Associates which may impact the neutrality of the counselling for the children.

20The applicant submits that a release of $30,000 to each of the parties from the remaining proceeds of sale of the matrimonial home will not jeopardize any equalization claim that the respondent has. The applicant contends that it will also relieve the financial hardship he is currently experiencing as a result of purchasing a new home and paying temporary child support, expenses the applicant does not have.

21The applicant notes that $179,000 currently remains in trust from the net proceeds, after a prior disbursement of $20,000 to each of the parties and disbursements of $3,500 and $4,818 to him to pay joint debts of the parties. The applicant further submits that a jointly owned recreational property is free and clear and listed for sale for $235,000. The applicant contends that a further disbursement of $30,000 now to each of the parties will not jeopardize a future equalization payment.

22The applicant acknowledges responsibility for 56.3% of qualifying s. 7 expenses incurred for the children. However, the applicant submits that the applicant should be required to consult with him and obtain his written consent prior to incurring any s. 7 expenses for the children. The applicant contends that he was not consulted prior to their son being enrolled in an elevated soccer program. He does not agree that travel and meal costs related to this soccer program are qualifying s. 7 expenses.

Discussion

23The applicant provides no substantive reason as to why the children should not be enrolled in counselling with Sullivan and Associates, a firm with a variety of specialized counselling services available. There is nothing to suggest that Dorset Pier Mental Health, the firm suggested by the applicant, and/or Jennifer White, can offer the children the counselling the Children’s Lawyer suggests they require.

24A temporary order shall issue permitting the respondent to enroll the children in counselling at Sullivan and Associates, without the need for the consent of the applicant. The applicant and respondent shall each be provided with any reports generated as a result of the children’s counselling. The parties shall equally share any out-of-pocket expenses for this counselling.

25I dismiss the applicant’s request for an order requiring that each of them be disbursed $30,000 from the balance of the net proceeds of sale of the matrimonial home, currently held in trust. I accept the submission of the respondent that, at this stage in the litigation and prior to the applicant’s pension being valued, I cannot be certain that such a payment will not jeopardize an equalization payment. Counsel for the respondent has agreed to re-visit this request upon receipt of the applicant’s pension valuation and/or the sale of the jointly owned recreational property. If that does not occur in a reasonable fashion, this request by the applicant may be brought back before the court.

26The applicant has acknowledged responsibility for 56.3% of the costs incurred for qualifying s. 7 expenses. The only alleged s. 7 expense at issue today is the cost of the of the parties’ son’s soccer program, including travel and meals.

27As I understand it, this is an intensive, elevated soccer program. This child was involved in soccer at a recreational level prior to the spring of 2023. The respondent did not seek the applicant’s consent to the son being enrolled in this program. The elevated program comes with significantly elevated expenses. In my view, the respondent should have, at the very least, been informed of the mother’s intentions and the associated costs and his input sought.

28In the circumstances, I decline to order that the applicant now contribute his proportionate share of these expenses. To be clear, I am not deciding the issue. I am adjourning this issue to be argued on January 5, 2024, together with the respondent’s claim for contribution by the applicant to other s. 7 expenses.

29Balance of the motions adjourned to January 5, 2024.