CITATION : Welch v. Welch, 2023 ONSC 6550

Court File and Parties

Court File No.: 5316-15 Date: 2023/11/21 Superior Court of Justice - Ontario

Re: Rebecca Leigh Welch, Applicant And: Michael Ted William Welch, Respondent

Before: The Honourable Mr. Justice A. Pazaratz

Counsel: Renee Roy, Counsel, for the Applicant Respondent Self-represented

Heard: November 17, 2023

Endorsement

1 There are two motions before me:

a. The Applicant mother’s April 8, 2022 motion to change child support as set out in Justice McLaren’s final order dated January 12, 2016. b. The Respondent father’s June 17, 2022 Response to Motion to Change which includes a request to change certain parenting provisions in the same order.

2 The self-represented father appears to have lost interest, not only in resisting the mother’s motion but also in pursuing his own cross-motion.

a. The parties had previously been notified that their long motions were on the current sittings, subject to being called on one day’s notice. b. Yesterday the Trial Co-ordinator notified both parties by email that the matter would be called at 10 a.m. today. c. At 10 a.m. the mother and her lawyer were present for the virtual attendance. The father was not. d. We stood the matter down and at my request Ms. Roy telephoned the father at the only number he has provided. The father did not answer and Ms. Roy received a message that the voicemail had not been activated, so she couldn’t leave a message. e. Ms. Roy also emailed the father at the commencement of today’s motion, again sending him the Zoom link. f. Also while the matter was stood down, the mother texted the father, but he did not respond. g. Despite this being a virtual hearing, the court registrar paged the Respondent in the court building, at 10:43 a.m. and again at 11:05 a.m. in case he had attended in person. There was no response. h. Ms. Roy advised that she last heard from the father’s former counsel on February 1, 2023. His lawyer indicated she intended to be removed from the record. On February 8, 2023 the father served a Notice of Change of Representation indicating he would be representing himself. Ms. Roy advised that she has never heard from the father directly. i. When we re-convened for me to read this endorsement at 11:10 a.m., the father still hadn’t responded in any fashion. j. The father didn’t attend for Purge Court on September 25, 2023 even though he had been notified the matter would be spoken to on the list. k. The father didn’t respond to a motion which Ms. Roy had to bring to have the matter placed on the trial sittings. That motion was required because the father wouldn’t cooperate with respect to scheduling. l. The father has not filed any updating materials or recent financial disclosure. m. He did not serve and file a factum. n. And, as set out below, despite bringing a cross-motion to increase his time and involvement with the children, the father has elected to be minimally involved with them.

3 The background, briefly:

a. The parties were married on August 15, 2008. b. The mother says they separated in May 2012. The father says separation occurred in 2014. That disagreement has no bearing on today’s issues. c. They have two children, Callie, age 12, and Camden, age 11. d. They were divorced on January 12, 2016.

4 The final order includes the following provisions relevant to these motions:

a. Sole custody to the mother. b. Access to the father as may be agreed to between the parties from time to time. c. Father to pay $200.00 per month child support while he is receiving Employment Insurance, subject to variation when he obtains employment. d. Father to pay his proportionate share of special and extraordinary expenses as the parties may agree in writing in advance. e. Father to provide copies of his tax return annually by May 15 and his Notice of Assessment annually upon receipt. f. Similarly, both parties to provide updated income disclosure annually per section 24.1 of the Federal Child Support Guidelines. g. Child support to be adjusted as of June 1 of each year, based on the prior year’s income.

5 The mother’s motion in relation to child support includes requests for the following:

a. Father to pay child support commencing March 1, 2019 in accordance with the Federal Child Support Guidelines, and if necessary, based upon an imputed income. b. Father to pay his proportionate share of special or extraordinary expenses under section 7 of the Federal Child Support Guidelines, with the same commencement date and calculation of his income. c. Costs.

6 The Mother is a nurse practitioner. She proposes that her income be determined as $106,579.00, which is an average of her last three years’ income.

7 Pursuant to section 15 of the Federal Child Support Guidelines the starting point for determining income for both child and spousal support is sections 16 to 20. Lesko v. Lesko, 2021 ONCA 369.

8 If the court is of the opinion that the determination of a spouse’s annual income under s.16 would not be the fairest determination of that income, s.17 states that the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.

a. Section 17 does not mandate income-averaging. b. The Guidelines rely upon the more recent past to predict the near future and do not adopt averaging as a default methodology. c. However, averaging is permitted when it results in a fair determination of income. d. The language in s.17 is permissive, not mandatory. Mason v. Mason, 2016 ONCA 725; Lesko v. Lesko, 2021 ONCA 369.

9 There is no obligation to use the most current year’s income where there is reason to think it is anomalous. Dreesen v. Dreesen, 2021 ONCA 557.

10 The mother’s income for the last four taxation years was:

a. 2019 – $55,176.00 b. 2020 - $69,842.00 c. 2021 - $114,904.00 d. 2022 – $134,992.00

11 Her income is only relevant with respect to the determination of the proportionate shares of section 7 expenses. But the obvious problem is that the mother has disclosed her 2022 income, which is notably higher than her 2021 income. In contrast, the father has not disclosed his 2022 income, so we have no information as to how it compares.

12 The mother proposes that a three-year-averaging be applied because 2022 was an anomaly.

a. She had to seek out extra work (including a second job) to address financial strains created by this litigation (which the father has needlessly protracted); the father’s lack of ongoing support; and indeed the above average level of expense she has incurred as a result of the father’s below-average amount of involvement in the children’s lives. b. With this court case finally ending, she doesn’t anticipate she will need to work the second job (or have the energy to do it). c. The mother’s extra work hours were not sustainable. d. Once the father starts paying appropriate ongoing support (and the significant arrears), the mother will be able to return to more normal and manageable full-time employment.

13 If we average her income for the years 2020, 2021 and 2022 the figure is $106,579.00.

14 If we average her income for the years the father has made disclosure for – 2019, 2020 and 2021 – her three-year average is $79,974.00. But section 17 refers to averaging over the “last three years.”

15 In the circumstances, I find that it would be unfair to allow the mother’s unusually high income for 2022 to distort or dominate the section 7 analysis, particularly where the father has not disclosed his own income for that year.

a. The mother was forced to incur unaffordable legal fees to rectify a financial and legal mess created by the father. b. She had to work unsustainable hours at her regular job, and at a second job. c. It would be perverse to allow the father to force the mother to temporarily bump up her income – and then allow him to rely on her artificially high line 150 income as grounds for him to pay a smaller share of section 7 expenses.

16 Accordingly, I accept Ms. Roy’s submission that for purposes of the current section 7 analysis, the mother’s income should be deemed to be $106,579.00.

17 The Father indicates he is a construction labourer for Liquiforce Services. He provided the following income disclosure:

a. 2019 - $68,600.00 b. 2020 - $61,721.38 c. 2021 - $79,538.80

18 The father has not provided any disclosure with respect to his 2022 income or his year-to-date for 2023.

19 The mother’s position with respect to an adjustment of support, retroactively and prospectively:

a. After he was served with the motion, eventually the Father agreed to pay retroactive and ongoing support based upon the Guidelines and his income as disclosed. b. Based on his income the father owes retroactive child support in the amount of $24,018.00 from March 1, 2019 to June 30, 2022. He paid $750.00 towards this resulting in an outstanding balance of $23,268.00 owing. c. The mother asks that those arrears be paid within 30 days, or at the rate of $250.00 per month commencing December 1, 2023. d. The father also made updated child support payments from July 1, 2022 until November 30, 2022, in the amount of $1,204.00 per month, based upon an income of $79,538.80. e. The father stopped all child support payments in December of 2022. The mother is seeking ongoing child support for the two children in the amount of $1,204.00 per month based upon the father’s last disclosed income of $79,538.80, commencing December 1, 2022.

20 The mother’s position with respect to special and extraordinary expenses under s.7:

a. The father says he is agreeable to contributing towards the children’s s.7 expenses based on his 2021 income. b. The mother asks that the father pay 43% of the children’s s.7 expenses based upon her income of $106,579.00 and his income of $79,538.00 per year. c. She seeks $2,855.81 for prior expenses of indoor soccer for both children, soccer summer camp, and RBG summer camp. Camden was engaged in hockey and soccer. Callie was engaged in soccer and Girl Guides. Both children were at an age that summer camp was essential given the mother is employed full time. Both children require orthodontal treatment. d. The amount claimed is 43% of the total which was incurred by the mother. e. She asks that the father should pay 43% of the children’s future special and extraordinary expenses pursuant to section 7.

21 In his Response to Motion to Change the father opposed the relief sought by the mother. But in his June 17, 2022 affidavit the father agreed to her requests. He has agreed to adjust both table child support and his contribution toward section 7 expenses, as of March 1, 2019. But he has refused to participate in the actual calculations.

22 I find that the mother has established that there has been a material change in circumstances in relation to child support, and that both the table amount and section 7 expenses should be varied as requested in her Notice of Motion.

23 Although the father is not present and appears to have lost interest in his cross-motion, nonetheless, he has not formally withdrawn it, so I must deal with it.

24 His cross-motion in relation to parenting issues includes requests for the following:

a. Mother to have sole decision-making in relation to the children. b. Mother to be required to consult with the father and inform him of any major decisions relating to the children’s education, health, religion and extracurricular activities. c. Children to reside primarily with the mother. d. Father to have specified parenting time in accordance with the children’s best interests and having regard to their ages, wishes and preferences.

25 The mother opposes the relief sought by the father.

26 The father’s position with respect to parenting issues:

a. He acknowledges his time with the children has been inconsistent. He says this is partly because his time has to be arranged “as agreed between the parties”. As well, he feels his time is usually while the children are engaged in extra-curricular activities. b. He has always been involved in his children’s lives. c. Since separation he has been living in his parents’ basement. When the final order was granted, there were other family members in the home, so there were no spare bedrooms. Now, however, there are bedrooms available for the children to visit overnight. d. He lives with a very supportive mother, and the children have a close relationship with her. e. He acknowledges that communication between the parties is “difficult”. He says this impacts on his ability to spend time with the children. f. He seeks a specified parenting time schedule, to ensure consistency and stability for the children. He acknowledges that any implementation of a parenting schedule will require a gradual expansion, allowing the children to adjust.

27 The mother’s position with respect to parenting time:

a. The children have remained in her primary care since separation. b. The father acknowledges he has spent inconsistent time with the children since separation, which was more than 11 years ago. c. Until recently the father has never had any overnight parenting time with the children. d. When the Motion to Change was issued the father was spending approximately two hours with the children every six to eight weeks e. Upon receipt of the father’s Response to Motion to Change a specified parenting schedule was negotiated. Starting at the end of June 2022 the father was to have the children one day per weekend from 10:00 a.m. until 5:00 p.m. (unless the children were on holidays with the mother). f. The father had eight visits pursuant to this temporary agreement. He was often late for pick up, even though he resides approximately ten minutes from the mother. One time he was more than an hour late. One time he returned the children two hours late. g. Callie and Camden were scheduled to have an overnight visit with the father on Thanksgiving weekend in 2022. Both children asked to cancel the visit, expressing worry. When the father attended he was not sensitive to the children’s concerns and became combative with the mother. The older child Callie refused to go with the father. Camden went but ended up calling the mother in the middle of the night, crying, scared and wanting her to pick him up. h. Thereafter the father canceled his weekend parenting time. By his choice, he has not spent any significant amount of time with the children since October 2022. i. The father last saw Callie in February of 2023 and last saw Camden in March of 2023. Although he planned to take Callie to an event in Toronto in April of 2023, he did not follow through. j. At today’s hearing the mother advised that the father showed up for a child’s hockey game two nights ago, but there was no discussion.

28 The mother’s position with respect to decision-making.

a. The existing order includes no provision requiring the mother to consult with the father in relation to decision making. b. There has been no material change in circumstances which would justify any of the variations sought by the father. c. The Father does not communicate with the mother in a manner which would facilitate proper information sharing regarding the children. d. At the time that the Motion to Change was issued, the father repeatedly called the mother on the phone, threatening her; telling her that the children would be removed from her care; and that his lawyer would “eat her alive”. e. The father has not attempted to seek information about the children in many months. f. The father has identified no area in which the decision-making provisions of the existing order have failed to address the best interests of the children. He has cited no area where the mother has made inappropriate decisions. He has cited no issue where he wanted to be involved in decision-making and the mother refused his involvement.

29 I agree with the mother that the father’s cross-motion should be dismissed in its entirety.

a. Section 17 of the Divorce Act sets out the court’s authority to change a parenting order. b. A party applying for a change in a parenting order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child. Gordon v. Goertz, [1996] 2 S.C.R. 27; L.M.L.P. v. L.S., 2011 SCC 64. If there is no explicit finding of a material change in circumstances, the inquiry ends. The court would be without jurisdiction to vary the order. Litman v. Sherman, 2008 ONCA 485. c. In this case the father has failed to establish any material change in circumstances, which would be a threshold requirement before the court would have the jurisdiction to consider changing the existing order. d. Beyond that, under each heading the father has raised, the evidence overwhelmingly suggests that the relief he has proposed would not be workable or in the best interests of the children. e. The father seeks the introduction of a mandatory consultation provision with respect to decision-making. While that sort of provision is common, it was not included in the existing final order, and there is nothing in the evidence to suggest that there has been any change in circumstances which would make his requested provision appropriate at this time. Communication between the parties is virtually non-existent, largely because of the father’s lack of interest. It would be unfair to create additional obligations on the mother to have to actively seek out the father and consult with him, in circumstances where he shows no reciprocating interest. Such a provision would simply create needless extra work and responsibility for the mother. She is already busy enough raising these children virtually single-handedly. f. Similarly the existing order does not specify a schedule for parenting time. The father proposed a fixed schedule of parenting time, but he is showing no interest in maintaining contact with the children. When a fixed schedule was attempted after he brought his motion, the father did not follow through and the children were negatively impacted. A fixed schedule would simply create obligations and restrictions on the mother, without any assurance that the father would show up. Scheduled parenting opportunities which the father will likely ignore would simply create inconvenience, frustration and disappointment for the children.

30 Final order:

a. The Respondent Michael Ted William Welch shall pay child support to the Applicant Rebecca Leigh Welch for the children, Callie Mae Welch, (date of birth omitted) and Camden Michael Welch, (date of birth omitted), in the amount of $1,204.00 per month based on his 2021 income of $79,538.80 and the Federal Child Support Guidelines commencing December 1, 2022. b. The Respondent shall pay to the Applicant the amount of $24,018.00 for his underpayment of child support from March 1, 2019 until June 30, 2022. The Respondent has paid $750.00 towards this underpayment in September, October, and November of 2022 resulting in $23,268.00 outstanding. c. Based on the Applicant's average income of $106,579.00 per year and the Respondent's income of $79,538.00 per year, the Respondent shall pay to the Applicant 43% of the children's s.7 expenses on an ongoing basis, inclusive of soccer, summer camp, Girl Guides, hockey, art classes, swimming and orthodontist expenses. d. The Respondent shall pay to the Applicant the amount of $2,855.81 for his share of the s. 7 expenses for the children paid up until April 30, 2023 by the Applicant. His share is based on his income of $79,538.80 and the Applicant's average income of $106,579.00 wherein his share is 43% for 2022. The expenses are as follows: a) indoor soccer in January 2022 in the amount of $258.77 for each child totaling $517.54 b) soccer summer camp in July 2022 for both children in the amount $743.54 c) RBG summer camp in August 2022 in the amount of $312.50 for each child totaling $625.00 d) Soccer for Callie in the amount of $200.00 e) Girl Guides for Callie in the amount of $179.00 f) Hockey for Camden in the amount of $456.34 g) Orthodontist for Callie in the amount of $3,920.00. e. Arrears shall be repaid at the rate of $450.00 per month commencing December 1, 2023. f. The father’s cross-motion is dismissed. g. The parties shall exchange by June 30th in each year, copies of their tax returns and notices of assessment, commencing June 30, 2024. h. The mother shall provide the father with written confirmation of any special or extraordinary expenses, within 30 days of the expense arising. i. In addition the Respondent shall provide the Applicant with copies of his 2022 tax return and notice of assessment, no later than January 30, 2024. In the event that this disclosure reveals that the Respondent’s income is greater than the Respondent previously disclosed, the Applicant may have the issue of quantum of support returned by way of motion, without the need for any further case management. j. The remainder of the Order of the Honourable Justice McLaren, dated January 12, 2016 shall remain in effect.

31 The mother seeks costs.

a. Ms. Roy’s full indemnity bill of costs including today totals $16,459.31 b. The full indemnity bill of costs for the mother’s prior counsel totals 1,654.00.

32 Costs rules are intended to foster four fundamental purposes:

a. To partially indemnify successful litigants; b. To encourage settlement; c. To discourage and sanction inappropriate behaviour by litigants; and d. To ensure that cases are dealt with justly pursuant subrule 2(2) of the Family Law Rules ("the Rules") Mattina v. Mattina, 2018 ONCA 867; Serra v. Serra, 2009 ONCA 395.

33 Costs awards are discretionary. In exercising that discretion, the court should be mindful of two touchstone considerations: reasonableness and proportionality. Beaver v. Hill, 2018 ONCA 840.

34 Costs are an important tool to promote the efficient use of judicial resources and the orderly administration of justice. Access to the justice system by individuals must be balanced with the need to ensure that the resource is available for all those who need it. Costs can be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious. British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71; Lawrence v. Lawrence, 2017 ONCJ 431; Peladeau v. Charlebois, 2020 ONSC 6596; Pugsley v. Adamantidou, 2021 ONCJ 590; N.P. v. D.H., 2023 ONCJ 2; F.K.T. v. A.A.H., 2023 ONCJ 185; Ali Hassan v. Abdullah, 2023 ONCJ 186.

35 The right to bring or respond to a case does not grant either party a license to litigate without regard to the financial and other consequences of litigation. Particularly in family court, litigants must be mindful that court proceedings are expensive, time-consuming, and stressful not only for parents but also for children and extended family. Sabo v. Sabo, [2013] O.J. No. 4628; DeSantis v. Hood, 2021 ONSC 5496; Forbes v. Forbes, 2022 ONSC 1787.

36 Parties need to be held responsible for their behaviour to maintain respect for the system. Mulik v. McFarlane, 2023 ONCJ 7.

37 Consideration of success is the starting point. Rule 24(1) creates a presumption of costs in favour of the successful party. Sims-Howarth v. Bilcliffe.

38 The mother was entirely successful in pursuing her own motion and in resisting the father’s motion.

39 The mother filed an offer to settle in May 2023. She exceeded the end result on parenting issues (she offered certain terms in relation to parenting which the father did not follow up on and which he did not obtain today). She matched her offer on financial terms (any very minor deviation of the apportionment of section 7 expenses was as a result of the father’s lack of disclosure). So, presumptively the mother is entitled to full recovery from the date of her offer. Ms. Roy has suggested about 35-40% of her bill relates to the period after the mother’s offer was served (and ignored).

40 Beyond that, I find that the mother should be entitled to a very high level of indemnification.

a. The mother had to commence her motion because the father was not complying with the disclosure and support adjustment provisions of the existing order. b. She had to incur significant and needless expense in trying to get the father to comply with his disclosure obligations. Indeed, even as of today, the father simply hasn’t provided all necessary disclosure. It left the mother having to guess about certain things. The most basic obligation in family law is the duty to disclose financial information. Roberts v. Roberts, 2015 ONCA 450; Leskun v. Leskun, 2006 SCC 25. c. As well, the mother had to spend significant time, energy and legal fees responding to the father’s cross-motion relating to parenting issues. Children’s issues are extremely important. The mother had no alternative but to deal with the issues raised by the father. But as it turns out, the father’s cross-motion on parenting issues was little more than a defensive reaction to the mother’s child support motion. He didn’t ask for more involvement with the children until the mother asked for more money.

41 I will not go so far as to find that the father’s approach to the parenting issue constitutes “bad faith”, as referred to in Rule 24. But he was certainly irresponsible and cavalier about the extra expense he was putting the mother to, at a time when he was fully aware that his lack of proper support had left her in a vulnerable financial situation.

42 I would note that Rule 12(3) creates a rebuttable presumption that a party withdrawing a claim must pay the costs of the other party. In many ways, failing to show up for your court case is even worse than formally withdrawing your claim, because it leaves the other side having to prepare and attend for a needless court appearance.

43 Determining costs requires more than a simple mathematical totalling of how much the successful party paid their lawyer.

a. The amounts actually incurred by the successful litigant are not determinative. The Court’s role in assessing costs is not necessarily to reimburse a litigant for every dollar spent on legal fees: Aprile v. Aprile, 2016 ONCJ 678; Kommineni v. Guggilam, 2022 ONCJ 191. b. The overall objective is to fix an amount that is fair and reasonable from the unsuccessful party’s perspective. This includes considering the amount the unsuccessful party could reasonably have expected to pay if they were unsuccessful in the litigation. Boucher v. Public Accountants Council of Ontario; Arthur v. Arthur, 2019 ONSC 938; Mussa v. Imam, 2021 ONCJ 92; Kerr v. Moussa, 2023 ONCJ 82.

44 I find that the amounts claimed by the mother’s counsel are reasonable given the issues involved, and the competence and efficiency with which Ms. Roy pursued this matter.

45 I find that the father should have realized that his unresponsive approach to the mother’s child support motion, and his irresponsible approach to his own parenting motion would have caused the mother to incur significant legal expense. He must have known that lawyers charge for their services, because for a while he had his own lawyer. It would be unfair for him to rid himself of his own legal fees, and then be indifferent to the ongoing legal fees he was forcing the mother to incur.

46 Accordingly, while I am not quite prepared to order full recovery, I find that fairness requires a very significant level of compensation.

47 The Respondent shall pay to the Applicant costs fixed in the sum of $16,500.00 inclusive of HST and disbursement.

48 The mother requests that costs be enforceable by the Family Responsibility Office.

a. Pursuant to section 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996 the court's authority to make orders directing that legal fees be included as a support order and enforced by FRO, is limited to costs awards arising out of support decisions. Clark v. Clark, 2014 ONCA 175; D.G. v. A-G.D., 2019 ONCJ 156; Parmar v. Flora, 2023 ONSC 2327. b. Where the court judgment involves a mix of support and other issues, the court has the discretion to determine what portion of the costs should be allocated to the support issue. Sordi v. Sordi, 2011 ONCA 665; Clark v. Clark, 2014 ONCA 175; A.A. v. Z.G., 2016 ONCA 737. c. A flexible approach is appropriate when the court is determining what proportion of costs should be allocated to support issues. Sordi v. Sordi, 2011 ONCA 665; Grewal v. Grewal, 2021 ONCJ 282.

49 $13,000.00 of the costs award shall be enforceable by the Family Responsibility Office, as that is the proportion of work which I find related to child support.

50 Support deduction order to issue.

Pazaratz J. Date: November 21, 2023