Court File and Appearances

Court File No.: FS-23-00038274-0000
Date: 2025-01-09
Court: Superior Court of Justice - Ontario

Re: Keen Williams, Applicant
And: Lester Williams, Respondent

Before: M. Kraft
Counsel: Pauline Malcolm, for the Applicant
Lester Williams, self-represented

Heard: January 9, 2025

Endorsement

Nature of the Motion

The applicant mother brought a motion seeking temporary orders for sole decision-making responsibility, primary residence of the parties’ son with the current parenting schedule to remain in place for the respondent father and son; child support in accordance with the Child Support Guidelines; an order that the child be maintained as a beneficiary under the father’s extended medical/dental health plan; and that the child be named as a beneficiary of the father’s life insurance policy. The father seeks sole decision-making responsibility.

Issues to be Decided

The issues for me to decide on this motion are:

(a) Is it in the child’s best interests for the current parenting time schedule to remain in place?
(b) Is it in the child’s best interests for either parent to have sole decision-making responsibility?
(c) What amount of child support does the father owe the mother for the child?
(d) Should the child continue to be maintained as the beneficiary of the father’s group extended health plan?
(e) Should the father name the mother as the beneficiary in trust of his life insurance policy offered through his employment as security for his child support obligation?

Background

By way of brief background, the parties began cohabiting in 2008. They were married on August 15, 2009. They separated on December 29, 2016.

They have one child of their marriage, L.J., who is now 11 years of age. L.J. is currently in Grade 6. His report card demonstrates that he is a keen student and doing well in all areas of the curriculum. He is also involved in many sports teams at his school.

Despite having separated 8 years ago, neither party took steps to formalize a resolution of the outstanding issues arising out of the breakdown of the marriage. The mother issued the within application on or about September 11, 2023. She submits that she did not have the resources to retain counsel until 2023 and that she has been seriously economically disadvantaged by virtue of the separation.

Currently L.J. resides with the parents pursuant to a schedule where he lives with the father every Thursday, from after school to Friday morning, and alternate weekends from Friday, after school to Monday mornings. At all other times, L.J. resides with the mother. This schedule has been in place by agreement of the parties since about April of 2023. The current parenting schedule amounts to the father having 5 overnights with L.J. over a 14-day period.

Both parties want this parenting time schedule to continue, albeit the mother has raised some concerns about the father not looking after L.J. directly on Thursday nights and on Friday nights while in his care. Specifically, the mother submits that the father does not see L.J. on Thursday overnights because of the father’s work schedule and that he often does not see L.J. on Friday nights because of his work schedule.

The father was ordered to produce his work schedule to the mother when the parties had a case conference before Mathen, J. on July 3, 2024, as she raised these concerns then. The father advised the court that he did not produce his work schedule to the mother at that time because he was on short-term disability. He did, however, disclose his work schedule to the court today during his oral submissions. He works for Canada Post on Mondays through and including Fridays daily from midnight to 8:00 a.m. and for Mount Sinai, daily from Mondays through and including Fridays from 2:00 p.m. to 11:00 p.m. His work schedule confirms, therefore, that he does not see L.J. on Thursday nights or on Friday nights when L.J comes to his house.

Is it in the child’s best interests for the current parenting time schedule to remain in place?

Given that the parties are married, the applicable statute to address their parenting issues is the Divorce Act, RSC 1985, c 3 (2nd Supp) (“DA”).

The only test used by the court to determine what parenting schedule should be followed is the best interests of the child: s.16(1).

The best interests factors are set out in s.16(4) of the DA. The Court is also directed to have as its primary consideration when reviewing these factors, the child’s physical, emotional, and psychological safety, security and well-being.

Given that L.J. is 11 years old, he requires stability and predictability in his schedule. Both parties agree that since 2023, L.J. has been following the current parenting schedule.

The mother’s evidence is that she works for a security company and that she is on-call for Canada Post. Similar to the mother, the father has raised concerns that when L.J. is in the care of the mother and she is working for Canada Post, she has the same overnight shift that he does, which means she leaves L.J. in the care of a third-party.

In answer to a question from the court, the mother advised that she started to work for Canada Post in 2021 on an “on-call” basis. When I asked how often the mother works for Canada Post, her counsel answered, “not that often.” When I asked how many times in a week, the mother is called for a Canada Post shift, her counsel answered, “not often”, and sometimes “not at all.”

The mother’s reply affidavit sets out that her “on call duties at Canada Post is sporadic”; “sometimes, [she] does not receive a call for months.” The mother’s affidavit also acknowledges that when she is called by Canada Post she does take the shift as she needs to support L.J. financially, and in those circumstances, her cousin and his wife assist her in looking after L.J.

Similarly, the father acknowledges that when he is working for Canada Post and L.J. comes to his house, the father’s cousin, or grand-aunt, with whom the father lives, look after L.J.

Given his age, L.J. is able to have overnight time with both parents during the school week. L.J. appears to have extended family who are part of his caregiving team on both the mother’s and the father’s side of the family. These extended family relationships are healthy for L.J. and necessary given both parents’ shift work responsibilities.

In these circumstances, I find that it is in L.J.’s best interests that the current parenting schedule remain in place where he resides with the father on Thursdays, from after school to Friday mornings, and on alternate weekends, from Friday, after school to Monday mornings. At all other times, L.J. shall reside with the mother.

Is it in the child’s best interests for either parent to have sole decision-making responsibility?

Both parents claim that they have been the parent to make decisions for L.J. since his birth.

The mother seeks an order for temporary sole decision-making responsibility and claims that L.J. needs stability and one person to make the important decisions that affect him. The mother explains that she and the father are unable to communicate effectively and they are incapable of making joint decisions together for the following reasons:

(a) They do not agree on basic things, including L.J.’s diet, bedtime, and the use of devices. The mother submits that she makes L.J. nutritious lunches whereas the father sends him to school with “Lunchables” and soda. The mother argues that she ensures that L.J. has a regular bedtime in her house of 9 p.m. and that he can go to sleep whenever he wants when he is at his father’s home. Finally, the mother claims she restricts L.J.’s use of devices and plays board games with him, whereas L.J. has unrestricted use of devices when he is with his father.

(b) The parties do not have a history of making decisions for L.J. together. The mother claims she was the parent who researched his doctors, dentist, daycare, extra-curricular activities, and school.

(c) She is the only parent who has met L.J.’s teachers or been involved at his school. She is also the only parent who attends parent teacher meetings.

(d) There is a power imbalance in the parties’ relationship with the father trying to dominate and abuse the mother and using her lack of financial resources to do so. As an example, the mother describes the father unilaterally removing L.J. from his prior school and daycare of 7 years to apply to CRA to split the child tax benefit between the spouses.

(e) The father tries to minimize her role in L.J.’s life, in that he restricted the mother’s ability to take L.J. to the dentist and threatened to take legal action if she took L.J. to the dentist because L.J. only has coverage through the father’s extended health and dental plan.

The father agrees with the mother that the parties do not communicate effectively. He claims that he has not been able to attend L.J.’s parent teacher meetings because the mother has told the school not to communicate with him. He also argues that he should be able to make the important decisions about L.J. because he always considers his best interests. Finally, the father complains that the mother refuses to communicate with him at all, since 2023.

Neither party was able to point to a decision that needs to be made about L.J. currently. L.J. attends his local public school. He has a family doctor and a dentist. There is no academic, health or extra curricular issue that has arisen recently or that is on the landscape in the near future.

Further, there has been no order in place granting either party decision-making responsibility since the parties separated in 2016.

Given that the written record before me is entirely conflicted about which parent made the important decisions about L.J. or how these decisions were made, the court is not in a position to determine this issue on a motion, without the record being tested.

Accordingly, I find that it is in L.J.’s best interests that no decision be made regarding which parent has temporary decision-making responsibility over the important decision at this time. This is an issue to be determined at trial.

What amount of child support does the father owe the mother for the child?

It is not disputed that the father has not paid child support to the mother since the separation 8 years ago on December 29, 2016.

The mother did not have resources to retain a lawyer to seek child support from the father. She tried to address the child support issue by seeking assistance from the Online Child Support Services. When the father was contacted by this service, he advised them that his income was zero. The mother attached a letter she received from the Child Support Services, dated June 16, 2023, that they could not proceed to obtaining child support for her because the father reported his income as zero.

The father does not dispute that he has a child support obligation. He claims that the parties had a joint bank account and the mother used funds in this account as child support. This is entirely disputed by the mother.

The father also uploaded receipts onto Caselines to demonstrate that he paid for Canada’s Wonderland passes, swimming lessons and a haircut for L.J. It is not disputed that the father pays for expenses for L.J. when he is with his father. However, paying for those expenses does not translate into monthly child support which is clearly owing to the mother.

The financial disclosure provided by the father demonstrates that in 2021, his Notice of Assessment lists his Line 150 income as $88,860; in 2022, his Notice of Assessment lists his Line 150 income as $87,864; and in 2023, his Notice of Assessment lists his Line 150 income as $104,101.

The fact that the father told the Ontario Child Support Services that he earned no income when in 2023, he earned over $100,000 demonstrates bad faith on his part. Every parent has an obligation to support a child. This is not new to the father. The father has another child in Trinidad for whom he pays child support. He was aware since the separation that he has not paid child support to the mother for L.J.

The father’s sworn financial statement, dated January 3, 2025, lists his two employers as Canada Post and Mount Sinai and his current annual income at $103,636.56.

The mother’s Notice of Motion, dated December 27, 2024, indicates that she is seeking child support for L.J. in the sum of $785 a month based on his estimated 2024 Line 105 annual income of $84,230.00.

The mother’s counsel, in oral submissions, advised that upon a review of the father’s disclosure, all of which was uploaded onto Case Centre after her Notice of Motion was served, she seeks child support for the mother based on the most current income information for the father, which is $104,000 a year, as opposed to $84,230. I agree that the father is obliged to pay child support for L.J. based on his most current income information.

The Federal Child Support Guidelines (“CSG”) dictate that on an income of $104,000, the father’s table child support obligation would be $942 a month.

The father advised the court that he cannot afford to pay child support of $942 a month because he has a child support obligation to a child that lives in Trinidad. In answer to a question from the Court, the father advises that his child support obligation to his child in Trinidad is 1500 TT, which is the equivalent of $400-$425 CAD a month. The father attached a copy of a Court Order from the High Court of Justice in the Republic of Trinidad and Tobago, dated February 7, 2023 which sets out that the father is to pay child support for his son in the sum of $1,500 a month, in Trinidad currency.

The CSG set out that presumptively the amount of child support for a child under the age of majority is the amount set out in the applicable tables according to the number of children and the income of the spouse against whom the order is sought: s.3(1).

A payor’s income is determined by using the sources of income set out under the heading “Total Income” in the T1 General form issued by the CRA: s.16.

The father advised the court that his income fluctuates. The Notices of Assessment filed by the father confirm that his income has fluctuated between $87,000 to $104,000 since 2021.

The father claims his income will be lower in 2024. However, he swore an updated financial statement on January 3, 2025, listing his income as $103,000. There is no evidence on the record to support the father’s assertion that an income lower than $104,000 should be used as the basis for his child support obligation.

I find that the father has an obligation to pay child support for L.J. in the sum of $942 a month, based on an income of $104,000, to be adjusted when his 2024 income tax return is available.

The issue of retroactive child support is a live issue to be determined at trial.

Should the child continue to be maintained as the beneficiary of the father’s group extended health plan?

The father confirmed that L.J. is a beneficiary under his extended medical/dental plan offered through his employment.

Pursuant to s.34(1)(j) of the Family Law Act, RSO 1990, c F.3 (“FLA”) the court can make an order requiring that a spouse who has an interest in a benefit plan designate the other spouse or a child as beneficiary under the plan and not change the designation.

I find that the father shall continue to ensure that L.J. is a beneficiary under his extended medical/dental plan offered by his employer and that he shall be maintained as a beneficiary under that plan for as long as he is required to pay child support for L.J. The father shall also provide the mother with a copy of the benefits booklet and card to enable her to utilize the insurance plan when she is taking L.J. to and from his appointments.

Should the father name the mother as the beneficiary in trust of his life insurance policy offered through his employment as security for his child support obligation?

The father advised the court that he has a life insurance policy available to him through his employment and that his two children, L.J. and his child in Trinidad are named beneficiaries of this plan.

Section 34(1)(i) of the FLA allows the court to require a spouse who has a policy of life insurance designate the other spouse or a child as the beneficiary irrevocably. This is done as security for a parent’s obligation to pay child support.

I find that the father shall maintain L.J. as the beneficiary of his life insurance policy until further court order or agreement of the parties and that he shall produce a copy of the beneficiary designation to the mother within 10 days.

Miscellaneous Issues

The father argued that the mother refuses to communicate with him since 2023 and, as a result, he does not have access to information about L.J. that the mother should be giving to him.

The father is entitled to information about L.J. from his school and the third parties involved with L.J. It is not, however, the mother’s responsibility to provide the father with that information. It is within the father’s control and ability to reach out to the school and doctors, or other third parties involved with L.J. and obtain that information as a parent.

There does need to be a way for the parties to communicate. During the motion, I asked both parties as to whether they were agreeable to communicating through a co-parenting computer application. Both parties were agreeable and I so order.

The father has a pension through his employment at Canada Post and through HOOP, given his employment at Mount Sinai. The father has not obtained the necessary Family Law Value of either pension. Without this information, the mother’s equalization of net family property claim cannot be determined.

Accordingly, I order the father to complete the necessary FSCO forms within 15 days, failing which, I authorize the mother to obtain the necessary information from the father’s pension administrators so she can complete the FSCO forms to obtain the Family Law Value of both pensions.

Costs

The mother seeks her substantial indemnity costs of this motion in the fixed sum of $5,198, inclusive of HST.

The mother was successful on this motion and as such, is presumptively entitled to costs pursuant to rule 24(1) of the Family Law Rules, O. Reg. 114/99 (“FLRs”). The court did not make a determination as to decision-making responsibility so that issue is neutral to both parties.

The issue of parenting time was resolved as requested by the mother, as was the issue of child support, ongoing income disclosure, life insurance as security for child support and maintaining the child on the father’s medical/dental benefits plan.

There is no provision in the FLRs that provides for a general approach of “close to full recovery” costs. Rather, subrule 24(12) sets out the appropriate considerations in fixing quantum of costs. Such an interpretation is inconsistent with the fact that the rules expressly contemplate full recovery in specific circumstances, e.g. bad faith or besting an offer to settle. See: Beaver v. Hill, 2018 ONCA 840.

To trigger full recovery costs a party must do as well or better than all the terms of any offer (or a severable section of an offer). See: Paranavitana v. Nanayakkara, 2010 ONSC 2257; Rebiere v. Rebiere, 2015 ONSC 2129; Scipione v. Scipione, 2015 ONSC 5982.

Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.

An award of costs is subject to the factors listed in subrule 24(12), subrule 24(4) pertaining to unreasonable conduct of a successful party, subrule 24(8) pertaining to bad faith, subrule 18(14) pertaining to offers to settle, and the reasonableness of the costs sought by the successful party. See: Berta v. Berta, 2015 ONCA 918, para 94.

The mother served a severable Offer to Settle on the father on December 26, 2024. This was the day before she served her motion material on the father. The father advised the court that he did not understand what it meant when the offer stated, “Each paragraph of this Offer to Settle is severable.” Accordingly, even though he agreed to the parenting schedule, he did not communicate that he accepted that paragraph of the mother’s Offer to Settle, because he understood that he needed to agree to all paragraphs of the Offer if he was going to accept it. Given that the father is self-represented that is an understandable mistake.

The father claims that if he is ordered to pay costs in the quantum sought by the mother it will cause him economic hardship.

Parties cannot expect to be immune from an order of costs based on their limited financial resources. If this were the case, parties would be free to conduct litigation as they wished without fear of reprisal in the form of adverse costs orders and this would be contrary to the philosophy and requirements of the Rules. See: Culp v. Culp, 2019 ONSC 7051; Mark v. Bhangari, 2010 ONSC 4638.

Accordingly, I order the father to pay the mother’s costs of this motion as set out below.

Order

This court makes the following temporary order:

(a) Pursuant to s.16(1) of the Divorce Act, commencing January 1, 2025 until further court order or agreement of the parties, the child, L.J. Williams, born on May 7, 2013, shall reside with the parents as follows:
i. The child shall reside with the father on Thursdays, after school to Friday mornings, when he shall be dropped off at school;
ii. The child shall reside with the father on alternate weekends from Friday, after school to Monday mornings, when he shall be dropped off at school;
iii. The child shall reside with the mother at all other times.

(b) The mother’s motion for temporary sole decision-making responsibility for the child shall be dismissed at this time. The issue of decision-making responsibility shall be determined at trial.

(c) Pursuant to s.15(1) of the Divorce Act, commencing January 1, 2025 and on the first day of each following month, the father shall pay the mother child support for L.J. Williams, born May 7, 2013 in the sum of $943 a month, based on his 2023 income of $104,000.

(d) Pursuant to s.15.1(3) of the Divorce Act and s.21 of the Child Support Guidelines, the father shall provide the mother with his T4 issued for 2024, his personal income tax return for 2024, his notice of assessment for 2024, and the most recent statement of earnings indicating the total earnings paid in the year to date, including overtime or, where such a statement is not provided by the employer, a letter from the spouse’s employer setting out that information including the spouse’s rate of annual salary or remuneration, as soon as this information is available.

(e) Pursuant to s.34(1)(i) of the Family Law Act, the father shall continue to maintain his life insurance policy offered through his employment to secure his child support obligations for L.J. Williams, and name L.J. Williams as the irrevocable beneficiary of his policy. The father shall provide a copy of the beneficiary designation to the mother within 30 days of the release of this Endorsement.

(f) Pursuant to s.34(1)(j) of the Family Law Act, the father shall continue to ensure that L.J. Williams is a beneficiary of his supplementary health care plan provided by his employer and provide the mother with the full details of the plan, including a copy of the benefits booklet, and an access card to all service providers.

(g) Pursuant to s.16.1(4) of the Divorce Act, the parties shall:
i. each subscribe to the co-parenting communication application, AppClose, immediately. The parties shall only communicate through AppClose except in the case of an emergency, in which case the parties may text or email each other directly.
ii. The parties shall only communicate pertinent information about the child and shall not denigrate the other in their communication.
iii. The parties shall use the BIFF rules to communicate about the child to reduce conflict and focus on L.J.’s needs, which stands for:

• Brief: keep communication short and to the point;
• Information: share only necessary information about the child;
• Friendly: maintain a positive tone and avoid unnecessary confrontation; and
• Firm: Be clear and assertive when needed.
  iv. Neither parent shall discuss the litigation or their separation with L.J. Williams under any circumstances or with third parties in L.J.’s presence.

(h) The father shall complete the Application for Family Law Value Family Law Form FL-1 through FSRA to obtain the family law value of his pension offered through both Canada Post and through HOOP within 15 days. A copy of the form can be found at Application for Family Law Value Family Law Form FL-1. If the father does not complete this form within 15 days, the mother has authorization to contact the pension administrator for both of the father’s pensions to enable her to complete this form.

(i) SDO to issue.

(j) The father shall pay the mother’s costs of this motion, fixed in the sum of $3,800, inclusive of GST payable within 30 days.

(k) The parties shall attend a Settlement Conference on May 27, 2025 at 10:00 a.m.

M. Kraft
Date: January 9, 2025