Garson v. Caron, 2025 ONSC 246

Court File No.: FC-24-442
Date: 2025-01-14
Superior Court of Justice, Family Court

Between:
Kathryn Garson, Applicant
and
Richard Caron, Respondent

Before: C. MacLeod
Appearances:
Jillian Allen, for the Applicant
Richard Caron, Respondent, self-represented
Heard: December 13, 2024

Endorsement

[1] The parties are the parents of an 8 year-old daughter (born June 9, 2016). They separated in December of 2021 after co-habiting for roughly eight years and have been co-parenting in one fashion or another since separation. The parties had signed a comprehensive Co-Habitation Agreement in 2014. In that Agreement, the parties covenanted to maintain separate property and waived any claims for spousal support or equalization.

[2] The Applicant Mother commenced this Application in March of 2024 because the parties had been unable to reach agreement on a separation agreement and on certain aspects of parenting.

[3] The matter came before the Court in December by way of a Motion and Cross-Motion. The Applicant Mother moves for appointment of the Office of the Children’s Lawyer (“OCL”), for a change in the parenting schedule and for an interim order permitting her to make all health care decisions for the child. The Respondent Father brings his own Motion seeking to maintain the existing schedule and the existing joint decision making.

[4] There are also competing Summary Judgment Motions. The Applicant Mother seeks a Declaration that the Co-Habitation Agreement signed on August 14, 2014 is valid and is a bar to the claims by the Respondent for spousal support or an equitable interest in land.

[5] The Respondent seeks an interim spousal support order, an order setting aside the Co-Habitation Agreement and a child support order based on a set off model by applying an averaging formula to the Applicant’s income (but not his own).

[6] There was a Case Conference on July 19, 2024. Other than certain orders for disclosure and production, nothing of substance was resolved. The parties were given leave to proceed with Motions and this collection of Motions was the result.

[7] I note that the Motions were originally scheduled for November 19, 2024 but had to be adjourned due to an unanticipated conflict which precluded the judge sitting that day from proceeding. The rescheduling was expedited to prevent further delay and came on for hearing on the morning of December 13, 2024.

Parenting

[8] The parties clearly have different ideas about parenting and also different concepts of how consultation should work. In his evidence, his demeanour in court and the language he used in argument, the father has a somewhat rigid and controlling approach to parenting decisions. He constantly refers to their child as “my daughter”. His text messages and emails suggest that he views his role as vetoing decisions rather than engaging in meaningful dialogue.

[9] For her part, the mother demonstrates a high degree of anxiety and seems reluctant to treat the father as a full partner in parenting decisions. She has a tendency to proceed unilaterally and her communication suggests she believes she knows what is best for the child.

[10] The parties have had friction over scheduling, schedule changes and decisions about the child’s health. The parents disagree about the need for therapy and orthodontic intervention. The Applicant Mother believes that the daughter needs both and the Respondent Father believes that further evidence is required before agreeing to either. I note that he is also opposed to the involvement of the Office of the Children’s Lawyer which he regards as an unnecessary intrusion into the daughter’s life.

[11] Despite their disagreements, the parties have been co-parenting since separation. They have been using Our Family Wizard as a communication tool, but they also communicate by text messaging and by email. In the past they have negotiated scheduling changes. They are sharing the parenting time equally and have done so since separation.

[12] The Applicant Mother seeks to change the parenting schedule so that the pick-up and drop-off will ordinarily occur at school. The rationale for this change is to reduce the number of face to face meetings between the parents and to avoid the parents having to go to the other parent’s residence. According to the mother’s evidence, the child would prefer pick-up and drop-off at school. The father disagrees. The current schedule is a “3-3-4-4” schedule and has been in place for the past two years. The mother wishes to resume a “2-2-5-5” schedule.

[13] According to the Applicant’s Affidavit, the inability of the parties to agree on a change to the schedule or come to terms on the health care issue were the motivating factors in commencing the court Application. The parties had exchanged various drafts of a separation agreement since separation but had not been able to come to a resolution.

[14] The question before the Court is whether or not a change to the status quo – that is the 3-3-4-4 sharing of parenting time and joint decision making – should be imposed on a temporary basis on the Affidavit evidence available on the Motion.

[15] It is conceivable that a change in the schedule to permit pick-up and drop-off at school would be beneficial although I note that it is not necessary to change the schedule entirely in order to have the school as the pick-up and drop-off location. The current schedule will result in many of the changeover days being weekdays although there are also occasional mid-weekend changeovers. Many parents have pick-up and drop-off locations that are in a neutral public place and not at their homes.

[16] It is possible that a change in the schedule would be beneficial and it is possible that eliminating changeovers which require attendance at the other home is also a good plan. It may make transitions smoother and may work better for the Applicant if not the Respondent. The question, however, is whether it is in the best interests of the child and whether there is any urgency to make the change now.

[17] In my view there is not. I will make an Order for involvement of the OCL so that the views and preferences of the child may be ascertained and given appropriate consideration. The parties are also directed to use the school as the pick-up and drop-off location on days when the schedule permits it.

Decision Making

[18] The mother’s request that she be given decision making authority over all health issues is premature and is a drastic resolution to an impasse over decision making around specific issues. A decision about the need for therapy should await the involvement of the OCL unless the parties reach agreement in the meantime. This is also an issue in which the views of the child should be taken into account.

[19] On the question of orthodontic treatment, it is the mother’s view that treatment to expand the child’s palate would be beneficial in order to avoid complications of a narrow jaw that the mother herself has experienced in adult life. She deposes that there is some urgency to this because the treatment is better to be undertaken before the age of nine.

[20] There is an opinion letter from a dentist. Although not framed in such urgent terms, the letter reads that the child would “greatly benefit from palatal expansion, possible myofunctional therapy and early orthodontic treatment to help develop a healthy airway and train her tongue to rest on the roof of her mouth”. It also identifies that the child has “a deep bite, narrow upper jaw and limited space for erupting permanent teeth”. There is a July 2, 2024, letter from an orthodontist setting out preliminary steps for planning “interceptive orthodontic treatment”. Those steps include radiography and measurements and could be taken without taking any irreversible steps. Neither of those letters specifically deal with urgency or refer to the age of nine mentioned in the mother’s Affidavit.

[21] In my view the evidence supports an Order permitting the mother to take the steps outlined in the medical letter. She will be empowered to authorize the x-rays and the taking of measurements preliminary to the proposed orthodontic treatment. There is insufficient evidence at this stage to conclude that the orthodontic work and the use of an orthodontic device should be authorized over the objection of the father or that his refusal to agree at this point in time justifies and Order granting all medical decision making to the mother.

[22] The father is concerned about the impact of wearing an orthodontic device on the child’s relationship with her peers, speech and self-esteem. He wants more information about the urgency of the proposed intervention. That is not unreasonable.

[23] If the father cannot be convinced that the treatment is required, it is possible that the Court will order it or permit the mother to make the decision. Before I would consider either of those orders, I would like to know the results of the preparatory work, to have the benefit of the child’s views through the OCL and to have a more detailed report from the dentist and/or orthodontist explaining what is involved, the risks, and the consequences if the treatment is not authorized now.

Summary Judgment and the Issue of the Co-Habitation Agreement

[24] The mother seeks summary judgment declaring that the Co-Habitation Agreement is valid, is binding and is a bar to the property claims and spousal support claims advanced by the Applicant Father.

[25] There is actually no dispute that the Agreement is a valid domestic contract under the Family Law Act. Nor is there any dispute that it is a valid contract based on ordinary principles of contractual construction. The Agreement is a comprehensive document that was prepared and reviewed by lawyers, was freely signed with independent legal advice and was intended to be binding. The Agreement sets out that it is intended to survive all foreseeable circumstances including loss of employment, serious illness or catastrophic health or other circumstances. There is no evidence before the Court that would lead to any conclusion other than that the Agreement is valid.

[26] In my view, the Agreement is a bar to any property claims. It will also bar any claim to spousal support unless a statutory exception applies. Such an exception is available under s. 33(4) of the Family Law Act.

[27] Under s. 33(4), the issue is not an issue of contractual validity. The issue is whether the Court should override an otherwise valid agreement. Under s. 33(4) a support provision or waiver of support in a domestic contract may be set aside if it results in “unconscionable circumstances” or the applicant is in receipt of social assistance.

[28] The Respondent is currently unemployed. He lost his employment with the federal government under circumstances he describes as “unconscionable”. Apparently, he grieved the dismissal and took it to the Federal Court where he was ultimately unsuccessful. Losing his employment is a significant change but it is also a circumstance that the Co-Habitation Agreement specifically contemplated.

[29] Losing his employment under circumstances he describes as “unconscionable” is not what the statute contemplates. What must be unconscionable is the waiver of support in the face of a circumstance in which the Applicant would ordinarily qualify for support. The law may impose a support obligation in those circumstances rather than leave the Applicant destitute.

[30] In the case at-bar, the ability of the Respondent to earn income is very much an issue in dispute. For his part, the Respondent has not explained why he is unable to earn income so as to meet the test of unconscionability. For her part, the Applicant wishes the Court to impute income to the Respondent for child support purposes. These are two sides of the same issue, the earning capacity of the Respondent. Accordingly, it would not be appropriate to determine only one side of the question on a summary judgment motion.

[31] It would be appropriate to narrow the issues for trial. The Co-Habitation Agreement itself was intended to be binding and it meets the requirements for a domestic contract. Except for reliance on s. 33, there is no basis for declaring it to be unenforceable. There will be a Declaration that the Agreement is a valid domestic contract. This is not a bar to setting aside the spousal support provisions in the Agreement if s. 33(4) applies.

[32] I considered granting summary judgment on the s. 33(4) issue because the Respondent Father did not lead evidence to show why he cannot earn any income or what he has done to look for work. It appears he has chosen to pursue further education rather than pursue employment and while that may well be better for him and his ability to support himself (and to pay child support) in the long run, it hardly demonstrates that he is so destitute that the waiver of spousal support is unconscionable.

[33] The reason I am not prepared to grant summary judgment on this point is that the Applicant Mother seeks to impute income to the Respondent. As such, the Respondent’s earning capacity is very much in issue and because unconscionability and earning capacity are two sides of the same coin, making a finding now on one issue and deferring the other risks different findings of fact by two different processes.

[34] Since the earning capacity of the Respondent Father must be determined to assess either unconscionability or to impute income, that is a genuine issue requiring adjudication.

Conclusion and Orders

[35] In summary, there will be an Order requesting the Office of the Children’s Lawyer to appoint counsel for the child pursuant to s. 89(3.1) of the Courts of Justice Act or to investigate and report pursuant to s. 112(1) of that Act.

[36] I will grant an Order permitting the Applicant Mother to proceed with the radiography and measurements recommended by the dentist and orthodontist whether or not the father consents. The father will be entitled to copies of all results and recommendations.

[37] I will grant an Order that on weekdays, unless otherwise agreed, the pick-up and drop-off will occur at the school (during the school year). On days when that is not available, pick-up and drop-off may be at a public location agreed between the parties.

[38] There will be a Declaration that the Co-Habitation Agreement is a binding and valid domestic contract which is a bar to any property claims or spousal support claims other than as set out in the Agreement, and subject to a finding under s. 33(4) of the Family Law Act should the Court so determine.

[39] There will be an Order that the issue of the earning capacity of the Respondent Father relevant to s. 33(4), and to the amount due for child support is an issue for trial or other adjudication.

[40] The Motions are otherwise dismissed but this is without prejudice to bringing subsequent motions including motions for summary judgment if such motions are justified. A subsequent motion regarding parenting time and decision making may be brought once the Office of the Children’s Lawyer has had an opportunity to complete its work or has refused to provide service as the case may be.

Costs

[41] If the parties wish to make submissions on costs, they may do so in writing on a schedule to be agreed upon or they may agree that costs of this Motion be dealt with by the trial judge. If no request to fix costs is received within 30 days, the costs are reserved to the trial judge.

Justice C. MacLeod
Date: January 14, 2025