COURT FILE NO.: FC-19-660-1 DATE: 2024/07/16 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

D.J.B. (Father) Applicant – and – J.V.M. (Mother) Respondent

Counsel: Megan Fife, for the Applicant Respondent, Self-Represented

HEARD: July 15, 2024

DECISION ON SUMMARY JUDGMENT MOTION

Somji J.

[1] The Applicant father brings a summary judgment motion seeking sole decision-making responsibility for L.L.B. age 15 (“child”), that the child reside with him, that the mother have supervised parenting time at his discretion, and for retroactive and on-going child support.

[2] The mother has struggled with on-going addiction issues. She did not file any materials in response to the motion or attend the motion hearing.

[3] The issues to be decided are:

a. Can this matter proceed by way summary judgment motion? b. If so, what parenting order is in the best interests of the child? c. Should there be an order for retroactive and ongoing child support?

Issue 1: Is there a genuine issue for trial?

[4] Pursuant to Rule 20.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and in accordance with the test set out for summary judgment in Hryniak v Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, I find there is no genuine issue for trial and the matter may proceed by way of summary judgment motion.

[5] While the mother did initially file an Answer, she has not complied with requests for information from opposing counsel related to her medical treatment and condition, including hospitalizations. The status of the mother’s mental health and alcohol addiction issues are a significant factor for determining an appropriate parenting order.

[6] The mother has also not complied with Audet J’s orders for financial disclosure for the years 2020, 2021, 2022, and 2023 or for counsel’s request for same. Given the history of the file, I find it is unlikely such information will be forthcoming to further assist the court.

[7] The mother has engaged in multiple delays in moving this matter forward and failed to cooperate on issues related to the child. The first case conference of January 24, 2024, was rescheduled because of her lack of communication with her own counsel. That counsel later withdrew from the record. The mother failed to appear at the rescheduled March 13, 2024, case conference or provide materials in support. The mother has not been responding to opposing counsel’s requests, including for approval of Audet J’s Order. The mother obstructed the father’s ability to obtain the child’s personal belongings as per Audet’s J’s order despite the involvement of the police. Finally, even with the assistance of counsel, it took the father two months to obtain the child’s health card and birth certificate.

[8] I agree with the father that given the mother’s lack of cooperation with him, opposing counsel, and with court proceedings, it is unlikely that any more information will be forthcoming from the mother to assist the court in determining the parenting or child support issues. A trial, as the father indicates, will only result in further delays and costs to him.

[9] In these circumstances, I find that a summary judgment motion is proportionate, expeditious, and the least expensive manner in which to address the factual and legal issues raised. Upon review of the materials filed by the father, including the mother’s Answer, I am satisfied that the pleadings allow me to make the necessary findings of fact and apply the law in relation to the issues to be decided: Hryniak at para 49.

Issue 2: What parenting order is in the best interests of the child?

[10] The primary consideration in determining a parenting plan which includes in this case primary residence, decision-making responsibility, and parenting time for the mother, is the best interests of the children: s. 16 and 16.1 Divorce Act, R.S.C. 1985, c.3 (2nd Supp), as am.

[11] Section 16(3) Divorce Act sets out the following best interest factors:

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.

[12] While I have considered all the best interest factors in arriving at my decision, I address below the most pertinent factors that have informed my decision.

History, stability of care, and plans for care

[13] The parties were married on July 7, 2007, and separated on March 15, 2014. They divorced on June 30, 2019. The parties co-parented the child following separation without the need for a written agreement.

[14] The father reports that the mother has history of alcohol and drug addiction which has led to multiple hospitalizations, liver failures, and unstable living conditions. In recent years, there have been incidents where the mother’s addiction issues have adversely impacted the child and required him to remove the child from the mother’s home due to concerns for safety. One such instance was the Easter long weekend in 2022, at which time the mother nearly lost her life and was hospitalized for five months.

[15] While the parties were able to return to co-parenting at the start of 2023, another incident occurred over the August 2023 long weekend. At that time, the mother had taken the child to her family cottage in Marmora, Ontario. Contrary to medical instructions, the father was informed by his daughter, friends, and neighbours that the mother had consumed excess alcohol all weekend. The child was supposed to return Monday August 7th for a job interview and dentist appointment, but the mother decided to stay to continue drinking.

[16] At around 11:30 pm on August 7th, the child called her father crying that her mother had fallen and injured herself. The father was three hours away and told her to get help from friends and neighbours, but child advised the mother was refusing. The next day, the mother and child spent the day at the hospital tending to the mother’s broken arm. The father picked up the child from the mother’s home, and she had been in his full time care since that time.

[17] The father has been responsible for ensuring all the child’s educational, medical, financial, and personal needs are met.

[18] Since August of 2023, the father took responsibility for scheduling and attending the child’s medical and dental appointment which he acknowledges was something the mother previously did because of her flexible schedule. However, as already noted, it took the father with the intervention of counsel up to December 2023 to obtain the child’s health card and birth certificate because of challenges in communicating with the mother. The father has assured the child receives the medical attention she needs, including recently when she was in a car accident.

The nature and strength of the child's relationship with each spouse and family members and each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse;

[19] The father supports the child having parenting time with the mother. Following the events of August 2023, he took the child to her mother’s place so she could walk the family dog a few times a week. Those visits occurred largely in August 2023. Since that time, the father has had difficulty scheduling such visits with the mother even though she is unemployed and he works full time and cares for the child.

[20] In November 2023, the mother attended the child’s school play where she had a brief interaction with the child.

[21] Despite the mother’s claim that she wants to spend time with the child, she did not make any requests through him or counsel to see the child prior to December 2023.

[22] In December 2023, following dozens of emails and communications with counsel, the parties determined that a visit between the mother and child could take place on December 26th at 2pm at a coffee shop. The mother failed to communicate the location of the visit. She left a voice mail that evening indicating her stepmother was ill and made no reference to the missed visit. The mother had earlier messaged the child on Christmas Eve that she would see them soon, but indicated she was ill with a toothache. The father later learned that the mother herself was in hospital for reasons that were never provided.

[23] Since December 2023, the father understands the mother has sent some text messages to the child and made one phone call, but she has not requested to see the child even after being made aware that the child was hit by a car on February 15th and injured to the extent of requiring her to miss several weeks of school and activities.

[24] On Saturday March 23, 2024, the child and another adult went to the mother’s home with police assistance to obtain the child’s belongings as per Audet J’s order. The mother would not cooperate. After speaking with the mother, the police informed the adult friend that the mother was a “mess” and suggested it was not advisable to proceed. Since then, the child has not attempted to retrieve her belongings nor has the mother offered to return them.

[25] According to the father, the only surviving relative on the mother’s side is a step uncle. His daughter may have some contact with him, but he is not certain.

Child’s views and preferences

[26] The child is 15 years of age, attends high school, and works part-time.

[27] The father reports that the child had received periodic email and text communications from her mother, but unfortunately, those text messages became more negative and accusatory following December 2023 and again after the case conference on March 13, 2024. The child reported to her father that the messages make her feel that she is responsible for the breakdown in their relationship and the reason they do not spend time together.

[28] The child also reported that the mother started calling and texting the child repeatedly which upset her. The impact was sufficiently negative that on April 16, 2024, the father emailed the mother to tell her to cease her behaviour. The father has communicated with the child that she does not have to respond if she does not feel comfortable. The child also showed the father a text she sent to her mother telling her to focus on her own well being without putting blame and the responsibility on her and the father. A copy of the text was filed as an exhibit. Since those interventions, the father reports that the mother’s accusatory communications have stopped and the mother has reduced her messaging to the child.

Conclusion on Parenting Order

[29] In conclusion, I find the current best interest factors support the child residing primarily with the father, that he have sole decision-making responsibility, and that the mother have virtual parenting time with the child at the child’s discretion and supervised-in person parenting time at the father’s discretion.

[30] The father has become the child’s primary caregiver since August 2023 and is able to meet all her needs. The evidence suggests that the mother continues to have ongoing mental health and addiction issues and is not in a position to care for or make decisions for the child and moreover, that she has been minimally engaged with the child since that time. I find the mother has also been uncooperative in facilitating decisions that are in the child’s best interest, including for example, ensuring the child has her important personal documents.

[31] The mother has not provided any medical information about her mental health and addiction to demonstrate that she has addressed these issues. Nonetheless, the father supports the mother having parenting time in a supervised setting. This can be in the presence of another third party adult including family members and friends. Those conditions may change over time should the mother enter a period of sobriety or if the father and child both feel the context of the mother’s parenting visits allow for the child to be her mother in a safe setting (i.e.. a public place) which perhaps does not require supervision. In this regard, I am mindful that the child appears to be a mature 15 year old. For this reason, there will be an order that the mother’s parenting time will be at the father’s discretion and the father shall, in consultation with the child, determine the duration, location, and level of supervision required for the mother’s parenting visits.

Issue 3: Should retroactive and ongoing child support be ordered?

Retroactive to August 2023 and ongoing support

[32] The parties agreed to share the costs for the child following separation when parenting time was 50/50, and consequently, no support has historically been paid by either party even under a set off arrangement.

[33] However, the father has now become the child’s primary caregiver and the father is entitled to retroactive child support dating back to August 9, 2023, and going forward.

[34] The mother is on social assistance and her 2023 income was $25,764. According to the Divorce Mate calculations provided, this would make the mother’s monthly payable Table support $245/month. I find that the father is entitled to 11 months of retroactive child support for the period September 1, 2023, to August 1, 2024, in the amount of $2,695.

[35] In addition, there will be an order that the mother pay on-going child support in the amount of $245/month commencing August 1, 2024 on the basis of her 2023 income of $25,764.

[36] The father anticipates the child will be continuing with activities, including driver’s education. He seeks contribution from the mother for payment of s. 7 expenses in proportion to the parties respective incomes. The request is reasonable and will be granted accordingly.

[37] There will be a support deduction order to enable the father to obtain support through the Family Law Responsibility Office.

[38] Finally, while the father had requested retroactive support for the years 2020 and 2022, upon further discussions in court regarding the requirements for entitlement to retroactive support under Colucci, the father agreed to forego this request.

Costs

[39] The father is the successful party and presumptively entitled to costs.

[40] Costs are at the discretion of the court. Rule 24(12) of the Family Law Rules, O. Reg. 114/99 as am., sets out the legal framework and factors for determining quantum of costs. One of the factors for consideration is the conduct of the parties. Here, I find the mother’s delays in advancing these proceedings, failure to communicate with opposing counsel, and failure to make full financial disclosure stymied the parties’ ability to resolve support issues and increased litigation costs that warrant an elevated costs award.

[41] At the same time, I must consider the financial means of the parties, their ability to pay, and the effect of any costs ruling on the parties and children: Fyfe v Jouppien, 2012 ONSC 97, 10 R.F.L. (7th) 371, at para. 11; M.(A.C.) v M (D.) (2003), 67 O.R. (3d) 181 (C.A.), at para. 45. Here, the mother is on social assistance and is ordered to pay retroactive and on-going support.

[42] Counsel filed a Bill of Costs. Total costs for the action and the motion for summary judgment was $16,464. Counsel appropriately excluded costs for the case conference which were already awarded by Audet J. Lead counsel was a 2013 call and charged a rate of $300 to $325/hour. Work was also appropriately delegated to an articling student. I found the rates reasonable and the billings commensurate with the work performed.

[43] Proportionality and reasonableness are the “touchstone considerations” in fixing the amount of costs: Beaver v Hill, 2018 ONCA 840.

[44] Having considered the father was the successful party, the absence of any offers to settle, the low complexity of the motion, the billings and rates, and the mother’s ability to pay, I find that an elevated costs award in the fixed amount of $12,000 is fair and reasonable in this case.

Order

[45] There will be an Order that:

i) The father shall have sole decision-making responsibility for the child.

ii) The child will reside primarily with the father.

iii) The mother will have virtual parenting time at the discretion of the child.

iv) The mother will have in-person parenting time at the father’s discretion, the duration, location, and level of supervision to be determined by the father in consultation with the child.

v) The mother shall not speak negatively of the father or discuss adult issues with the child. In the event the mother does not comply with this requirement, then the mother’s virtual parenting time shall be suspended until such time as the father and child agree to reinstitute it.

vi) The father will be able to obtain and keep in his possession the child’s passport, health card, SIN card, and any other government documentation or identification.

vii) The father may apply for a passport for the child without the mother’s consent or authorization.

viii) The father may travel with the child outside of the province and country without the mother’s consent or authorization.

ix) The mother shall facilitate the child’s attendance at the mother’s home with an adult third party other than the father for the purpose of retrieving her belongings including her SIN card and identification.

x) The Ottawa Police Services shall take all reasonable steps to enforce the child’s attendance at the mothers’ home for the purpose of retrieving her belongings.

xi) The mother shall pay retroactive child support in the fixed amount of $2,695 in accordance with the Federal/Provincial Child Support Guidelines, O. Reg. 391/97 as am. for the period for the period September 1, 2023 to August 1, 2024 on the basis of her 2023 income of $25,764.

xii) The mother shall pay ongoing Table child support in the fixed amount of $245/month commencing August 1, 2024 and for so long as the child is enrolled in a full-time program of education and residing at the father’s home.

xiii) The mother shall contribute to the special and extraordinary expenses for the child in proportion to the the parties respective incomes. The father shall notify the mother of any proposed activities and consent shall not be unreasonably withheld. The mother shall reimburse the father her portion of expenses within 15 days of receiving proof of payment.

xiv) The parties shall exchange their Income Tax Returns and Notices of Assessment annually by July 1st of every year.

xv) Unless the support order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director and any amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

xvi) The mother shall pay the father costs in the amount of $12,000 within 30 days.

xvii) One third of the costs award relates to support within the meaning of section 1(1) (g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 and a such, is enforceable by FRO.

[46] Counsel will draft a detailed Order for my review consistent with this decision.

Somji J. Released: July 16, 2024