Court File and Parties
COURT FILE NO.: FS-16-004-002 DATE: 2024-08-29
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Alexandra Kylie Chalifoux Ms. A. Chalifoux, applicant mother, personally Applicant
- and -
Thomas Jonathan Atkinson Ms. S. Filipovic, for the respondent father Ms. K. Costa, Office of the Children’s Lawyer Respondent
HEARD: via Zoom on August 19, 2024, at Thunder Bay, Ontario
Madam Justice H. M Pierce
Reasons on Motions
Introduction
1The parties each have a motion before the court. The applicant mother commenced this litigation by filing a second motion to change the final order. (Her first motion to change was dismissed.) She moves for an interim variation of the final order, as described below.
2The respondent father seeks summary judgment, dismissing the mother’s motion to change in its entirety or narrowing the issues for trial.
3The parties settled all claims in their separation by virtue of the final consent order of Mr. Justice Fregeau dated March 28, 2019 (“final order”) which was amended on consent by his further order of March 22, 2024 (“amended order”).
4The final order dealt comprehensively with parenting and decision-making for the parties’ four children, Benjamin (“Ben”) Atkinson, born September 30, 2008 (age 15), Beau Atkinson born June 8, 2010 (age14), Bobby Atkinson born April 27, 2012 (age 12) and Barrett Atkinson born November 25, 2013 (age 10).
5Key provisions of the final order include:
a. The parties share parenting and decision-making for the children with exchanges to take place on Mondays at school in alternate weeks with separate provision made for holidays;
b. the mother shall not move her permanent residence further than 100 km. from Dorion, Ontario and the father shall not move his residence more than 50 km. from Dorion without the written consent of the other parent or an order of the court;
c. the children shall attend Dorion Public School and thereafter Nipigon Red Rock High School and each parent would ensure that the children would attend school while in their care;
d. special provisions are made for Beau’s health care which is provided at two Toronto hospitals;
e. the parents shall communicate through Our Family Wizard;
f. child support and s. 7 expenses were fixed based on the father’s 2018 income, with a set-off formula and the mother’s income imputed at $25,400 per year, based on minimum wage at the time.
6The amended order removed prohibitions on the applicant’s partner having contact with the children, a change which is not relevant to these motions.
The Mother’s Motion Dated November 9, 2023
7The mother moves for a temporary order varying the final order, as amended, seeking the following relief:
a. updating child support;
b. reserving child support arrears to a separate order;
c. requiring the father to pay s. 7 expenses directly to third parties;
d. ordering that Ben continue to attend Hammarskjold High School provided the parties can reasonably ensure daily school attendance and requiring travel to and from school and for exchanges be treated as s. 7 expenses [emphasis added];
e. alternatively, Ben remain in the mother’s care from Monday to Friday weekly during the school year to ensure his school attendance, and during school holidays, parenting time in accordance with the final order;
f. if an alternative parenting arrangement is ordered, the father may request make-up time with Ben and the mother shall have discretion to approve or deny the father’s requests for make-up time;
g. the father would indicate his preference for parenting time on a weekly basis by Friday at 3 p.m.;
h. the parties “shall be deemed to have equal and shared parenting time with the children” on an interim basis until further variation or order of the court;
i. the parties’ three youngest children continue to attend Dorion Public School with travel costs to be considered as s. 7 expenses;
j. the parenting schedule to remain as in the final order on an interim basis provided the parties can reasonably ensure daily school attendance [emphasis added];
k. in the alternative, the three youngest children shall remain in the father’s care weekly from Monday at 9 a.m. until Thursday at 3 p.m. for the purpose of school attendance and return to the mother’s care from Thursday at 3 p.m. until Monday at 9 a.m. with the parenting time to return to that specified in the final order during school breaks [emphasis added];
l. alternatively, the father shall have weekly care of the three youngest children from Monday at 9 a.m. until Wednesday at 3 p.m. and the mother shall care for the children between Wednesday at 3 p.m. and Monday at 9 a.m. with the schedule to revert to time specified in the final order during school breaks;
m. the mother may request make-up time between Monday and Wednesday that falls on the mother’s parenting time, at the mother’s discretion;
n. the mother shall elect her preferred parenting schedule before Friday at 3 p.m.;
o. in any event, the parties shall be deemed to have equal and shared parenting time on an interim basis until further variation or court order.
8With respect to the child, Beau, the mother also seeks the following interim orders:
a. in addition to parenting time with the mother set out in paragraph 4 of her notice of motion, the mother shall have weekly time with Beau Wednesdays from 3 p.m. through Thursday at 9 a.m. and Friday from 3 p.m. until Saturday at 1 p.m. with the mother to be responsible for travel but the cost to be treated as a s. 7 expense;
b. the father shall ensure that Beau is included in all parenting exchanges;
c. the father may not use his discretion to allow Beau to decide whether he attends at parenting exchanges, and the father shall be responsible for ensuring the children are returned to the mother for the parenting exchange;
d. the father shall be required to assist the mother with any travel related specifically to Beau’s parenting time with the applicant;
e. the father shall refrain from any interference with the mother’s parenting time with Beau;
f. the father shall not unreasonably withhold consent to the mother’s requests for compensatory parenting time with Beau;
9In addition, the mother seeks the following temporary orders:
a. If the mother does not attend to pick up the children for parenting time, the father shall immediately deliver the children to her at her residence;
b. If the children are not available at the school for the mother’s parenting time, the father shall immediately deliver the children to the mother’s residence and the reverse obligation would also apply;
c. Except in emergencies, the parties shall provide the other with a minimum of 48 hours’ notice of requests to alter parenting time through Our Family Wizard;
d. In the event that either party is unable to drive the children to their respective schools, that party is required to offer the other parent to commute the children to/from school in order to ensure regular attendance at school;
e. The parties shall ensure the children are not involved in decisions involving parenting time or other adult conflict; and
f. An order that the Father be placed on the strictest of warnings regarding conduct surrounding interference with parenting time for the Applicant with the children [emphasis added].
The Father’s Motion Dated November 15, 2023
10The salient portions of the father’s motion are as follows:
a. Summary judgment pursuant to Rule 16 of the Family Law Rules dismissing the mother’s second motion to change in its entirety or narrowing the issues set out therein as determined by the court;
b. In the alternative, a temporary order adjusting child support based on the children’s residences, with Ben living primarily with the mother and Beau living primarily with the father and Bobby and Barrett being in a shared parenting arrangement;
c. A temporary order setting out the parenting arrangements for the children in accordance with the status quo pursuant to the final order;
d. Costs.
Procedural Considerations
11While the best interests of the children must always be the foremost consideration of the court, the jurisdiction to deal with the competing motions before the court is governed by the rules and applicable case law. I will therefore consider these parameters first.
Interim Variation of a Final Order
12The mother seeks an interim variation of a final order, a procedure that was discussed at some length by Justice Pazaratz in F.K. v. A.K., 2020 ONSC 3726, paras. 48 - 52. In F.K., like this case, the parents were involved in high conflict that interfered with their ability to make parenting decisions in the best interests of the children.
13The test to vary a final order is described in F.K. as follows:
48To determine a request to change custody, access or parenting order, the court must embark on a two-stage inquiry. Gordon v. Goertz, [1996] 2 S.C.R. 27.
49The first step: there must be a material change in circumstances since the last order was made.
a. There must be a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs.
b. The change must materially affect the child.
c. It must be a change which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. The change must be substantial, continuing and “if known at the time, would likely have resulted in a different order.” [citation omitted]
d. The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order.
e. If there is no material change in circumstances, the inquiry ends. The court would be without jurisdiction to vary the order. [citation omitted]
f. If there is a material change, the court must move to the second stage and consider the best interests of the child and whether to vary the original order.
50The second step:
a. If a material change in circumstances has been established the court then embarks on a fresh inquiry into the best interests of the child.
b. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. [Citations omitted.]
c. The court must ascertain the child’s best interests from the perspective of the child, rather than that of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child. [Citations omitted.]
d. The child should have maximum contact with both parents if it is consistent with the child’s best interests. [Citations omitted.]
e. Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child’s needs and the ability of each parent to meet those needs. [Citation omitted.]
14At para. 52 of F.K., Justice Pazaratz discussed temporary variations of final orders, observing that an even more stringent analysis was required. He cautioned about changing an existing status quo arrangement to which the children are accustomed, and particularly if the existing parenting arrangement had to be determined by court order. He noted that the “evidentiary basis to grant a temporary variation must be compelling.”
15At para. 52(g) of F.K., the court must assess whether the new circumstances have created a situation of actual harm or prejudice for the child “of such a nature or magnitude that immediate rectification or correction are required to safeguard the child’s best interests.” In other words, the court must determine that the existing order is contrary to the child’s best interests.
Motion for Summary Judgment
16The father seeks summary judgment pursuant to Family Law Rule 16 dismissing the mother’s motion for interim variation of the final order or narrowing the issues.
17Rule 16(6) permits the court to make a final order where there is no genuine issue requiring a trial. In Hryniak v. Mauldin, [2014] 1 S.C.R. 87, 2014 SCC 7, the Supreme Court of Canada, the court set the test for the application of summary judgment in a civil context, holding,
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits of the case on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
18Rule 16. (6.1) provides that when determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and may weigh evidence, make credibility findings and draw inferences from the evidence unless it is in the interests of justice that such powers be exercised only at trial.
19Rule 16(9) permits the court to give directions if the court does not make a final order.
20Counsel for the Children’s Lawyer submits there is no need to go to trial, that the court can make an order on a summary judgment motion pursuant to Family Law Rules 2(2), 2(3) and 2(4).
21Counsel submits that the court can vary the prior order or make a new order if the terms are in the best interests of the children. She argues that there is ample evidence before the court to make such an order, including the children’s views and preferences, such that a trial is not required.
22The mother contends that she was coerced into consenting to the final order. I do not accept this submission. She was represented by experienced counsel during prior proceedings and has since negotiated an amendment to the final order to permit her partner to have contact with the children. She has represented herself since that time at repeated court appearances.
23The mother also contends that the father is in contempt of the order. I do not accept this submission. No motion for contempt has been filed.
24The mother submits that a full trial is required so that witnesses can be cross-examined but she does not say what witnesses or to what purpose. The two eldest children are of an age where their views and preferences will be given significant weight. The parties have been able to resolve by consent the change in Ben’s schooling and parenting time to accommodate it, giving effect to his wishes.
25A full-scale trial that relitigates the issues to which the parties have previously agreed would increase the tensions within the family, involving the children in their parents’ conflict. It would also incur significant costs and divert the family income toward legal fees instead of support for the children. Trial is not in the children’s best interests.
Objectives of the Family Law Rules
26The Children’s Lawyer submits that the provisions dealing with the Family Law Rules have application in this case. In particular, counsel cites Rules 2(2), 2(3) and 2(4).
27Rule 2(2) provides that the primary objective of the rules is to deal with cases justly. Rule 2(3) sets out that dealing with cases justly includes ensuring fair procedure, saving expense and time, dealing with a case in a manner appropriate to its importance and complexity, and giving the appropriate court resources to the case.
28Rule 2(4) clarifies that the court, the parties, and counsel are required to promote the primary objective. Not cited by the parties or counsel, but worthy of mention is Rule 2(5) which imposes a duty on the court to manage cases.
The Children’s Views and Preferences
29The Office of the Children’s Lawyer was appointed to present the children’s views and preferences at the hearing of these motions.
30The children’s views and preferences may be summarized as follows:
a. Ben: wishes to have his primary residence with his mother so that he can attend Hammarskjold High School and spend time with his father in accordance with his wishes. Ben also wishes that his parents will be flexible about his access to family and friends in Red Rock and Thunder Bay.
b. Beau wishes to have his primary residence with his father and see his mother when he wishes.
c. Bobby and Barrett wish to continue the alternating weeks with each parent. However, Bobby is concerned that he is missing a significant amount of school, while Barrett stated that he is doing “well enough.”
31The Children’s Lawyer submitted that the mother’s failure to ensure the children’s school attendance must be addressed in considering the children’s best interests. The Children’s Lawyer recommends that the choice of the children’s school be made in consultation with the children.
Changes in Circumstances
32Since the final order was made, there have been several changes in circumstances that materially affect the children. These include the ability of the mother to meet the needs of the children. I am persuaded that these changes could not have been foreseen and if known, would have resulted in a different order.
33Firstly, the order is five years old. The children have grown and matured in that time. They are better able to express their views and preferences. Their educational needs have also changed. In the case of the two eldest boys, because of their age and maturity, their wishes are a significant factor in determining their best interests.
34Recognizing Ben’s maturity, the parties agreed and accepted his choice of high school. The parties agreed that Ben would primarily live with his mother from September 2022 in order to facilitate his access to Hammarskjold High School. Ben lives with his mother during the school week and determines when he will see his father. That is the new status quo.
35However, of concern is Ben’s school attendance. The father records that Ben was shown as absent 29 days from September to November of 2023, an unacceptable rate of absenteeism.
36Secondly, since the final order was made, the mother has changed her address from Gus Wouri Road, some 88.6 km. from the children’s school at Dorion, Ontario to Kakabeka Falls, a distance of 105.7 km. from the Dorion School. This move is contrary to the final order which requires that the mother not to move her permanent residence more than 100 km. from Dorion, Ontario. The father did not consent to the move and the mother did not obtain an order setting aside this condition.
37When asked by the court about ensuring the children’s school attendance, the mother indicated that she would not be able to get Bobby and Barrett to the Dorion School in the alternate weeks when they are in her care. This is also a change in circumstances.
38Finally, the parties’ second child, Beau, has a contentious relationship with his mother, such that he does not want her at his specialist medical appointments in Toronto and often does not want to see her.
39While in his mother’s care in November 2023, Beau was treated at hospital for substance abuse issues and threats to kill himself. Beau told medical personnel that “He doesn’t like being at his mom’s house, that he doesn’t do well at his mom’s house and that he wants to be at his dad’s house.”
40Beau has been living with his father since November 2022 and has had much less contact with her, despite his father’s encouragement to do so. This has created a new status quo. The mother blames the father for the breakdown in her relationship with Beau.
Discussion
41From a procedural perspective, the mother asks the court to vary the final order on a temporary basis, subject to a trial while the father asks the court to grant summary judgment and dismiss the motion to vary, pursuant to Rule 16.
42The mother has filed no evidence dealing with arrears of child support or justifying payment of s.7 expenses to third parties. Her motion for that relief is dismissed.
43While the father’s motion does not seek a final order for primary care of Bobby and Barrett, the father does indicate in his affidavit that this would be a solution to the problem of their school absenteeism.
44Of note, as well, is the mother’s notice of motion that asks the court to make the parenting schedule contingent on school attendance. Alternatively, she seeks an order that the father care for the three youngest children from Monday to Thursday for the purpose of school attendance. In the further alternative, the mother’s motion seeks an order giving the father weekly care of the three youngest children from Monday to Wednesday.
45As I have said, the mother admitted in oral argument that she would not be able to get Bobby and Barrett to school in alternate weeks.
46The court also asked the father’s counsel if he would be prepared to assume primary care for Bobby and Barrett as well as Beau, and he agreed.
47I am satisfied that the mother was alive to the issue of the father assuming primary care of the three younger boys and was able to make full submissions on the issue.
48The Children’s Lawyer submits the court has jurisdiction to grant a final variation of the parenting orders if it is in the children’s best interests, and, where necessary, order a trial of an issue with directions, to give effect to Rules 2(2), 2(3), and 2(4).
49I agree with the primary position of the Children’s Lawyer. However, I do not agree that a trial of an issue is required on some issues. Rule 2(2) provides that the primary objective of the rules is to deal with cases justly. Rule 2(3) sets out that dealing with cases justly includes ensuring fair procedure, saving expense and time, dealing with a case in a manner appropriate to its importance and complexity, and giving the appropriate court resources to the case.
50Here, the parties filed detailed affidavits, supporting documents, financial statements and factums. They made fulsome arguments. In my view, the process fairly allows the court to consider the evidence necessary to determining the issues the parties have pleaded, using the appropriate amount of court resources.
51If trial of an issue were ordered, the parties would undoubtedly be ordered to file affidavit evidence, and the Children’s Lawyer would have been asked for the children’s views and preferences.
52There is no advantage in repeating the process; indeed, there is a positive disadvantage in increasing uncertainty for the children, exposing them to prolonged conflict between the parents, incurring further costs that could be used for child support, and taking further court time to deal with the same issues.
53The parents have agreed that the final order should be varied to provide that the mother has primary care of Ben, subject to Ben’s wishes to see his father. There is no need for a trial on this issue.
54At 14, Beau is old enough to have his views and preferences considered by the court, including where he lives and ultimately, what high school he attends. It is in his best interests that he be able to determine when he has parenting time with his mother, as his older brother, Ben, does with his father.
55Forcing Beau to have parenting time with his mother against his wishes is not productive and can only serve to alienate the child and perpetuate conflict between the parents. It may also jeopardize his mental health.
56Furthermore, at Beau’s age, making the father responsible for the child’s choices will not persuade the child to have time with his mother. It will only perpetuate the conflict between the parties. Exposing the children to this continued conflict is not in their best interests.
57Beau expressed his wishes to have his primary residence with his father and see his mother at times of his choosing. The father indicated in his affidavit that Beau has refused to return to his mother’s care the majority of the time since 2022. He is of an age where the court should give effect to his wishes which reflect the status quo for his care for more than 1 ½ years.
58It is in Beau’s best interests to have his wishes recognized and accepted. I am satisfied that there is enough evidence on this issue to make a final variation of the parenting order. A trial of the issue of Beau’s care would not help the court to determine parenting, in view of Beau’s age and expressed wishes.
59With respect to Bobby and Barrett’s parenting time, it is obvious that, despite their wishes, the mother is not committed to supporting their education. There is enough evidence on this issue, including the mother’s admission that they will not attend school in the alternate weeks they live with her, to justify a final variation in their care.
60The evidence before the court indicates that the younger children were not consistently attending school while in their mother’s care when she lived at her previous residence and that Bobby, in particular, is struggling at school.
61There is no indication that Ms. Chalifoux has considered how she will transport the boys to Dorion School, or explored other school placements near her new residence or plans to home-school the boys. She stated that the Dorion School has been the only consistent feature of the children’s care as the children have attended since Junior Kindergarten. She said this represents 9 years for Bobby and 7 years for Barrett.
62The mother seeks to have the father subsidize the children’s transportation to school as a s. 7 expense and further, to have him provide transportation if she cannot. This proposal is wholly unworkable. The father is employed on a full-time basis whereas the mother is not employed.
63Further, the proposal that the father contribute to the mother’s expense for transporting the boys to and from primary school does not fall within the definition of s. 7 expenses in the Child Support Guidelines in that it is not extraordinary.
64The mother seeks to off-load her parenting responsibilities for school transportation to the father. She was aware that transportation was an issue when she lived at her previous residence. Now, she has moved even further away.
65At a minimum, a parent must provide necessities of life for her child, one of which is education.
66In my view, the failure of the mother to plan for and facilitate Bobby and Barrett’s school attendance in alternate weeks and to commit to their education is contrary to the children’s best interests and cannot be condoned by the court.
67The evidence demonstrates that the boys’ attendance at school in alternate weeks is not sufficient to give them a proper education, and that Bobby is falling behind. It interferes with their academic and social development and could have life-long repercussions. It is a compelling reason to order a variation in parenting time.
68The final order of Justice Fregeau dated March 28, 2019, shall be amended by the following final orders:
The parents shall share decision-making for all the children and shall keep the other parent informed with respect to the children’s health and education. In the event that the parents disagree about the children’s education, the father’s decision shall determine the issue. Communication shall be effected by the parents through Our Family Wizard.
The mother shall have primary care of Ben on condition that she shall ensure Ben’s regular attendance at Hammarskjold High School unless Ben is demonstrably ill. If Ben’s school attendance is not consistent, this shall be considered a material change in circumstances that the court may review. Ben shall have parenting time with his father in accordance with his wishes.
The father shall have primary care of Beau subject to parenting time with his mother in accordance with the child’s wishes, including with respect to his health care.
The father shall have primary care of Bobby and Barrett during each school week, and their mother shall be entitled to parenting time on weekends or as the parties agree.
During the school vacations, the parents shall share parenting time in accordance with the children’s wishes.
The parent exercising parenting time shall pay the costs associated with the transportation of the child or children.
Child support shall be varied in accordance with the children’s place of ordinary residence and the Child Support Guidelines. The father’s employment income for 2023 was $148,798 less union dues for a net income of $147,512 while the mother’s imputed income was $25,400. Based on Ben living primarily with his mother and Beau, Bobby and Barrett living primarily with their father, the child support set-off is calculated as follows: the father pays the mother $1,281 per month while the mother pays the father $525 per month for a net child support payment from the father to the mother of $756 monthly, commencing September 1, 2024.
In addition, the parties shall pay s. 7 expenses for the children based on the father’s proportionate share of the parties’ combined incomes, fixed at 85% and the mother’s proportionate share fixed at 15%.
For so long as child support is payable, the parents shall exchange income tax returns on or before May 1 of each year, commencing in 2025, and shall adjust child support and s. 7 calculations in accordance with the Child Support Guidelines effective June 1 of each year.
There shall be no arrears of child support or of s. 7 expenses.
The amended order of Justice Fregeau dated March 22, 2024, to which the parties have consented is unaffected by these orders.
Conclusion
69Summary judgment shall issue in accordance with these final orders, varying the final order of Justice Fregeau dated March 28, 2019.
70If the parties cannot agree on costs either party may ask the trial coordinator, within 30 days of the release of these reasons, to fix a hearing date to argue costs, failing which costs shall be deemed settled.
“original signed by”
The Hon. Madam Justice H.M. Pierce
Released: August 29, 2024