Dodman v. Chiola, 2012 NSSC 272

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Dodman v. Chiola , 2012 NSSC 272 Date: 20120723 Docket: 1201-64429; SFHD-69333 Registry: Halifax Between: Darren Allen Dodman Applicant v. Carolyn Antonio Chiola Respondent Revised Decision: Paragraph 26 has been corrected to state that Mr. Dodman’s monthly spousal support payments are reduced to zero with his payment on July 26, 2012 (not 2011). Paragraph 65 has been revised to indicate the notice period required if the children are travelling for a period of four days.

The text of the decision has been corrected on September 5, 2012 and replaces the previously released decision. Judge: The Honourable Justice Elizabeth Jollimore Heard : June 21, 2012 Counsel: Darren Dodman on his own behalf Daniel S. Walker for Carolyn Chiola By the Court: Introduction [ 1 ] In October 2011, Darren Dodman applied to vary the terms of the Corollary Relief Order granted in his divorce from Carolyn Chiola. The Corollary Relief Order incorporates the terms of an Agreement and Minutes of Settlement which they negotiated at a settlement conference in September 2010.

During the settlement conference and divorce, Mr. Dodman was represented by counsel. He now represents himself.

[ 2 ] Mr. Dodman asks that the terms of his access to the couple’s children (fourteen year old Samuel and ten year old Anna) be specified, particularly as the terms relate to communication and his time with his children. Mr. Dodman asks that his child support obligation, pursuant to

section 3 and

section 7 of the Federal Child Support Guidelines , SOR/97-175, be changed. He also asks that his obligation to pay spousal support to Ms. Chiola be terminated. [ 3 ] Mr. Dodman’s application is governed by the Divorce Act , R.S.C. 1985 (2 nd Supp.), c. 3. The hearing [ 4 ] The parties filed affidavits and financial statements and both were cross-examined. They agreed that Beth Newell, a counselling psychotherapist Ms. Chiola retained, was qualified to offer expert evidence in the area of family counselling and therapy. Ms.

Newell met with the children over a period of approximately eight months prior to preparing a report and an affidavit. Ms. Newell testified. [ 5 ] When the hearing began, Mr. Dodman expressed concern that he didn’t have sufficient opportunity to respond to certain allegations in Ms. Chiola’s affidavit, though Ms. Chiola had filed her affidavit by the deadline set for its filing and Mr. Dodman had filed a reply affidavit. I told Mr. Dodman that he could ask for an adjournment, but he chose not to do so. [ 6 ] At the outset of the hearing, Ms. Chiola objected to many of the statements contained in the “position

summary”, a document Mr. Dodman filed in lieu of a brief. She said that these statements were evidence, rather than argument. Mr. Dodman was given the option of adopting his position

summary as his evidence, which he did. [ 7 ] It’s very common that parties who represent themselves find it difficult to distinguish evidence from argument and to make submissions without offering evidence that cannot be tested through cross-examination. Mr. Dodman was no different. I have not considered any new information contained in Mr. Dodman’s submissions in reaching my decision. Spousal support [ 8 ] Because of the interplay between spousal support and the calculation of a contribution to children’s special or extraordinary expenses provided for in

section 3.1 of

Schedule III of the Federal Child Support Guidelines , SOR/97-175, I begin by addressing spousal support. The review provision [ 9 ] The parties’ Agreement, incorporated into their Corollary Relief Order, states that “[s]pousal support shall be subject to review on or after October 1, 2013.” [ 10 ] In Leskun , 2006 SCC 25 at paragraphs 36 and 37 , on behalf of a unanimous Supreme Court of Canada, Justice Binnie distinguished between reviews and variation applications, saying that reviews “permit parties to bring a motion to alter support awards without having to demonstrate a material change in circumstances”.

A review order pursuant to subsection 15.2(3) entitles a party “to return to court for a reconsideration of a specified aspect of the original order.” According to Justice Binnie, at paragraph 37, “This will properly occur when the judge does not think it appropriate that at the subsequent hearing one or other of the parties need show that a change in the condition, means, needs or other circumstances of either former spouse has occurred, as required by s. 17(4.1) of the Divorce Act .” [ 11 ] The Agreement makes no reference to altering the application of

section 17 to the payment of spousal support and, since a review and variation are very different sorts of proceedings, I conclude that the availability of a review does not replace the statutory entitlement to seek a variation. Has there been a material change? [ 12 ] Mr. Dodman’s application is governed by section 17(4.1) of the Divorce Act .

Before I may vary a spousal support order, I am to be satisfied that there’s been a change in the condition, means, needs or other circumstances of either former spouse since the making of the order sought to be varied. [ 13 ] The order sought to be varied is the Corollary Relief Order of December 10, 2010. It states Mr. Dodman’s annual income to be $90,000.00 and Ms. Chiola’s, to be $21,000.00. In this context, Mr. Dodman was ordered to pay spousal support of $800.00. [ 14 ] When the settlement was negotiated in September 2010 and when the Corollary Relief Order was granted in December 2010, Ms.

Chiola was working at Tip Top Tailors. She had completed her Bachelor of Arts degree in the spring of 2010. At the time, Ms. Chiola’s earnings at Tip Top Tailor were changing and, according to Mr. Dodman, she said her “new pay would be $21,000.00”, the amount reflected in the Corollary Relief Order. Mr. Dodman knew that Ms. Chiola wasn’t satisfied with this income and was looking for more remunerative work. [ 15 ] Following the divorce and the granting of the Corollary Relief Order, Ms. Chiola began to work at Aviva Insurance in January 2011.

Her 2011 income tax return shows her to have total earnings of $34,770.42 in that year. This amount includes a small sum that she received for working a few final shifts at Tip Top Tailors. Her May 18, 2012 paystub indicates that she’s earned $14,486.62 from her salary and bonus to that point of the current year. Ms. Chiola’s paid $1,280.00 bi-weekly ($33,280.00 each year). A bonus is not guaranteed, but she has received a bonus of $1,982.00 this year. From her bonus and salary, her current annual income is $35,262.00. [ 16 ] Mr.

Dodman’s annual income has decreased from the $90,000.00 stated in the Corollary Relief Order to $86,642.00 while the change in Ms. Chiola’s employment means that her annual income has increased from $21,000.00 to an amount in the range of $34,000.00 to $35,000.00.

[17] Ms. Chiola’s current income is seventy percent higher than her income at the time the Corollary Relief Order was granted. She’sbeen employed in her current position for eighteen months. [18] A material change is a change which “if known at the time [of the order sought to be varied], would likely have resulted indifferent terms” according to the majority decision in Willick, (SCC) at paragraph 20.

Justice Sopinka, who wrote themajority reasons, continued that “the corollary to this is that if the matter which is relied on as constituting a change was known at therelevant time it cannot be relied on as a basis for variation.” While Willick addresses child support under the Divorce Act, in G. (L.) v. B.(G.), (SCC), both the majority opinion (by Justice Sopinka at paragraph 73) and the minority opinion (of JusticeL’Heureux-Dubé at paragraphs 49 to 51) confirmed that Willick’s analysis is applicable to spousal support variation applications. [19] In the majority reasons in L.M.P. v.

L.S., 2011 SCC 64, at paragraph 35, Justices Abella and Rothstein said that “In general, amaterial change must have some degree of continuity, and not merely be a temporary set of circumstances” and, at paragraph 48, theyadopted the reasoning in Hickey, (SCC), where Justice L’Heureux-Dubé wrote, at paragraph 20, “this change must bematerial, and cannot be trivial or insignificant”. [20] Ms. Chiola’s increased income is not a temporary change of circumstances. It is a sustained change of over one year’s duration.

The change in her income is a significant change: viewed against the backdrop of the parties’ financial situation (as Justice Sopinkadirects at paragraph 70 in Willick, (SCC)), this is an increase which eclipses the amount of Mr. Dodman’s annualspousal support obligation. Mr. Dodman was ordered to pay annual spousal support of $9,600.00. Ms. Chiola’s income has increased bymore than $14,000.00. [21] Ms. Chiola argues that it was foreseeable that her income would increase so this isn’t a material change in circumstances. Whatwas foreseen at the time of the Corollary Relief Order was that Ms.

Chiola’s annual income would increase to the level of $21,000.00,not to the level it has reached. [22] I accept that Ms. Chiola’s increased income is a material change which has occurred since the granting of the Corollary ReliefOrder. [23] Where the threshold for varying the spousal support has been met, I must determine what variation needs to be made in light ofthe change in circumstances. According to the majority reasons in L.M.P. v. L.S., 2011 SCC 64, at paragraph 47, I am to take intoaccount the material change and I should limit myself to making on the variation justified by that change.

I am not to “weigh all thefactors to make a fresh order unrelated to the existed [Corollary Relief Order], unless circumstances require the rescission, rather than amere variation of the order”. In this, the Court was quoting paragraph 62 of the majority reasons in Miglin, 2003 SCC 24. [24] Ms. Chiola and Mr. Dodman began to cohabit in 1996. They married in 1999 and separated a decade later when Samuel waseleven and Anna was a few months shy of her seventh birthday. When they separated, Ms. Chiola and the children remained in thematrimonial home, where they continue to reside. Ms.

Chiola was employed as a retail clerk by Tip Top Tailors. She says she held thisemployment “during most” of the marriage. She started the task of completing her Bachelor of Arts degree through part-time studies atSaint Mary’s University in 2007 and graduated in the spring of 2010. She says she was primarily responsible for the children during themarriage and, during the final “few” years of the marriage, she was responsible for them overnight while Mr. Dodman was workingnight shifts driving a truck. Ms. Chiola continues to be primarily responsible for the children. [25] In his cross-examination, Mr.

Dodman agreed that he didn’t want to bar the possibility of future spousal support. He said hecould imagine returning to the payment of spousal support. [26] A material change has been established. Considering the parents’ circumstances, Ms. Chiola’s ongoing child-rearing obligationsand Mr. Dodman’s admission, it is appropriate to vary the spousal support payments. It is not appropriate to rescind them. Mr.Dodman’s spousal support payments have been made weekly, on Thursdays. After his payment on Thursday, July 26, 2012, the amountof his weekly spousal support payment shall be zero. Child support [27] Mr.

Dodman wants to make a number of changes to his obligation to pay child support. First, he wants to adjust the monthlyamount he paid from July 2011 to June 2012. Second, he wants to adjust the monthly amount he will pay from July 2012 to June 2013.

Third, he wants to vary the contribution he makes to special or extraordinary expenses. [28] In the previous paragraph I’ve intentionally chosen to describe alterations to the amount of child support calculated pursuant tosection 3 of the Guidelines, as an adjustment, while I’ve described the alteration to the amount of child support calculated pursuant tosection 7 of the Guidelines as a variation.

My intention is to reflect the terms of the parties’ Agreement. [29] The Agreement requires, in paragraph 15, that the former spouses shall exchange tax returns and Notices of Assessment “on an annual basis on or before June 1st each year” and further requires: “[T]he amount of table child support payable by the father shallthereupon be adjusted accordingly, beginning with the payments due for the month of July each year.” There is no similar provision forthe automatic adjustment of Mr. Dodman’s contribution to the children’s activity costs.

As a result, I understand the parties intended toadjust annually the amount of Mr. Dodman’s child support payment pursuant to

section 3 of the Guidelines to reflect changes in hisincome, while changes to the amount paid pursuant to

section 7 of the Guidelines require the analysis of subsection 17(4) of the DivorceAct and not merely a re-calculation of proportionate shares based on each parent’s income. Child support pursuant to

section 3 of the Guidelines [30] The Corollary Relief Order required Mr. Dodman to pay monthly child support of $1,226.00, based on his annual income of$90,000.00. This was the amount prescribed by

section 3 of the Federal Child Support Guidelines for two children in 2010.

July 2012 – June 2013 [ 31 ] The parties agree that Mr. Dodman’s 2011 income was $86,642.00 and that this amount shall be used to determine the amount of his child support payment from July 2012 to June 2013. Starting with Mr. Dodman’s first child support payment in July 2012, his monthly payment is $1,185.00. I have determined this amount using the Simplified Tables provided by the Department of Justice Canada. July 2011 – June 2012 [ 32 ] The parties don’t agree that Mr. Dodman’s 2011 child support payment should be adjusted to reflect his 2010 income. Ms.

Chiola urges me not to adopt the plain reading of the language incorporated into the Corollary Relief Order, arguing that the reference to “each year” does not include 2011. She says that the amount the parties fixed for Mr. Dodman’s income at the settlement conference and incorporated into the Corollary Relief Order should prevail until June 2012. I don’t accept this argument. If this had been the parties’ intention or agreement, it would have been reflected in their Agreement which was prepared by Ms. Chiola’s counsel.

It would have been a simple matter to state that the annual adjustment of child support would not begin until 2012. [ 33 ] According to Mr. Dodman’s 2010 tax return, his income for the purpose of determining child support was $81,109.00. As a result, Mr. Dodman’s child support payments should be adjusted. Starting on July 1, 2011 and continuing until December 1, 2011, I fix Mr. Dodman’s monthly child support payment pursuant to

section 3 of the Guidelines at $1,121.00. The Guidelines were changed effective December 31, 2011, so I adjust the amount of Mr. Dodman’s payments, still based on $81,109.00, for the period from January 1, 2012 until his payment following July 1, 2012. His payments during this period shall be $1,116.00. Child support pursuant to

section 7 of the Guidelines [ 34 ] Mr. Dodman was ordered to pay $100.00 each month “for his share” of Samuel’s tutoring (which was estimated to cost $925.00 annually) and “the cost of football and karate for Samuel.” The football and karate expense was estimated at $875.00 each year. The Agreement and Minutes of Settlement specifically noted that Mr.

Dodman was contributing to the football and karate cost “without prejudice to whether these latter expenses constitute special or extraordinary expenses”. [ 35 ] Subsection 17(4) of the Divorce Act instructs me that before I vary a child support order, I must be satisfied that there’s been a change in circumstances as provided for in the applicable Guidelines which has occurred since the order sought to be varied was made. [ 36 ] Mr. Dodman argues that since the Corollary Relief Order was granted, his income has changed and that Samuel does not now participate in karate and football. (In fact, Samuel never took

part in football, though it was anticipated that he would.) These are both changes provided for in the applicable Guidelines which have occurred since December 2010 when the Corollary Relief Order was granted. A further change is the increase in Ms. Chiola’s income. [ 37 ] In Ms. Chiola’s Statement of Special or Extraordinary Expenses of January 2012, she claimed a contribution to Samuel’s costs for tutoring and racquetball lessons, to Anna’s basketball and guitar lessons, and to the counseling for both children. By the time of the hearing, Ms.

Chiola was seeking a contribution to Samuel’s tutoring and his gym membership (he was not participating in racquetball because the sport wasn’t being offered and Ms. Chiola enrolled him in a gym “so that he can participate in workout classes and to exercise on his own time”). Anna’s activities hadn’t changed. [ 38 ] According to section 7(1) of the Federal Child Support Guidelines , one former spouse can ask that I order the other pay all or any portion of certain enumerated expenses. In making an order under

section 7, I am to consider the necessity of the expense as it relates to the children’s best interests and the reasonableness of the expense in relation to the former spouses’ and children’s means and the family’s pre-separation spending pattern. [ 39 ] Of the six categories of expense enumerated in

section 7, only two are categories of expenses which must be “extraordinary” in order to be the subject of an order for contribution. Expenses for primary school education fall into one such category and are listed in section 7(1) (d). The other category is extra-curricular activities, which are listed in section 7(1) (f). [ 40 ] The parents agree that tutoring is an extraordinary expense and its cost should be shared. Samuel’s tutoring is weekly throughout the school year. It costs $25.00 each week. Annualized over the entire year, it costs $90.21 each month. Based on Mr.

Dodman’s annual income of $86,642.00 (in light of my decision with regard to spousal support, I am not required to adjust Mr. Dodman’s income pursuant to

section 3.1 of

Schedule III of the Guidelines ) and Ms. Chiola’s annual income of $35,262.00, Mr. Dodman shall contribute $64.00 per month to this expense, starting with his payment following July 1, 2012. [ 41 ] Mr. Dodman doesn’t agree that the children’s other expenses (for racquetball, a gym membership, basketball and guitar lessons) are extraordinary. [ 42 ] In L.K.S. v.

D.M.C.T. , 2008 NSCA 61 at paragraph 27 , Justice Roscoe, with whom Justices Saunders and Oland concurred, said that it’s “preferable to deal first with s. 7(1) to determine whether the expenses are necessary in relation to the child’s best interests and reasonable in relation to the means of the parents before dealing with the definition of extraordinary expenses in s. 7(1A).” Her Ladyship’s regulatory reference is to the Nova Scotia Child Maintenance Guidelines , N.S. Reg. 53/98 . The case before the Court of Appeal was pursuant to the Maintenance and Custody Act , R.S.N.S. 1989, c. 160 and its regulations.

Leave to appeal the Court of

Appeal’s decision to the Supreme Court of Canada was denied at D.M.C.T. v. L.K.S., (S.C.C.). As I have elsewhere, Iadopt Justice Roscoe’s reasoning in this application, which is pursuant to the Divorce Act. [43] So, before I may order a contribution to the children’s activity costs, I must be satisfied the expenses are necessary as they relateto the children’s best interests. I must also be satisfied the expenses are reasonable in relation to the means of the parents and thechildren, and to the pattern of spending that existed for this family prior to the separation.

Once I have completed that analysis, if Idetermine the expenses are necessary and reasonable pursuant to section 7(1), I must then determine whether the expenses areextraordinary pursuant to section 7(1.1). If so, only then may I order a contribution to the extraordinary expense. [44] Ms. Chiola’s evidence with regard to the children’s activities was brief. She testified that Samuel’s racquetball (which replacedhis involvement in karate) cost approximately one-half as much as karate. The gym membership (which replaces his racquetball) costseven less.

Anna’s involvement in basketball and guitar lessons is new: she began guitar lessons in the spring of 2011. At the time theAgreement was negotiated, Anna was involved in swimming lessons and Brownies. These were not treated as extraordinary expenses inthe parties’ Agreement. [45] Mr. Dodman’s evidence about the children’s activities was that he approved of the children participating in activities. Whenasked whether the children were “good” at their activities, he responded by saying that it “doesn’t matter whether they’re good or not”. He agreed that the children switch activities from time to time.

He said that the activities weren’t extraordinary and that it’s “expected”that the children will take

part in activities and this is provided for in the basic amount of child support he pays. Mr. Dodman agreed thatthe cost of the children’s activities had increased overall. [46] As Justice Roscoe outlined in L.K.S. v. D.M.C.T., 2008 NSCA 61, my first step is to determine whether the extra-curricularactivity expenses are necessary in relation to the child’s best interests and reasonable in relation to the parents’ means.

Here, I wasprovided with no evidence of the necessity of the extra-curricular activities in light of the children’s best interests or the reasonablenessof the associated expenses. [47] Even if I was prepared to assume that the requirements of subsection 7(1) were met, Ms. Chiola’s claim fails in the absence ofevidence to satisfy the requirements of subsection 7(1.1). That subsection contains two discrete alternatives for proving that an expenseis extraordinary. Ms. Chiola didn’t adduce evidence addressing either alternative in subsection 7(1.1), though Mr.

Dodman made clear inthe parties’ conciliation session that he didn’t agree these expenses were extraordinary. Parenting [48] The parties’ Agreement provided for the children’s contact with their father in a single sentence: “The father shall havereasonable access to the children.” Mr.

Dodman asks that this be varied. [49] Subsection 17(5) of the Divorce Act instructs me in resolving applications to vary parenting orders that, before I vary a custodyorder, I must be satisfied that there’s been a change in the condition, means, needs or other circumstances of the children which hasoccurred since the order sought to be varied. In making the variation order, I’m to consider only the children’s best interests asdetermined by reference to that change.

Subsection 17(9) offers further instruction: in making a variation order, I’m to give effect to theprinciple that the children should have as much contact with each former spouse as is consistent with the children’s best interests. [50] I’m governed by Gordon v. Goertz, (S.C.C.), in making a decision to vary parenting arrangements. Atparagraph 10 of the majority reasons in Gordon v.

Goertz, (S.C.C.), then-Justice McLachlin tells me that before I canconsider the merits of a variation application, I must be satisfied there has been a material change in the children’s circumstances that hasoccurred since the last custody order was made. [51] At paragraph 13, Justice McLachlin was more specific in identifying the three requirements that must be satisfied before I canconsider an application to vary a parenting order.

The requirements are: 1. there must be a change in the condition, means, needs or circumstances of the children or the ability of the parents to meet the needsof the children; 2. the change must materially affect the children; and 3. the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. [52] Material change is more than a hurdle to prevent incessant variation applications. All parenting applications, including variationapplications, are determined on the basis of the children’s best interests.

Identifying the material change which means the current orderis no longer in the children’s best interests also informs deciding what variation should be made so that the new order serves thechildren’s best interests. [53] Ms. Chiola doesn’t concede that there’s been a material change. The change which Mr. Dodman says has occurred is that he isnot having reasonable access to the children. He says that the fighting between himself and Ms. Chiola over access is stressful for him

and for the children. [ 54 ] The evidence identified a number of problem areas relating to the children’s access. For example, since separating, Mr. Dodman has made a practice of telephoning the children nightly. He telephoned Ms. Chiola’s home phone, which is a landline. He made a point of calling in the evenings, after supper and before bed. Approximately ten months ago, after an argument between the parents, the children stopped taking his calls. Mr. Dodman assumed the children weren’t home and he’d call repeatedly, knowing that they would eventually return home as bedtime approached.

Ultimately he learned that the children were not answering the phone, though they were at home. Ms. Chiola testified that she won’t answer the phone, saying that she was studying (she finished her degree in April 2010), or she was busy or she wanted to avoid a “major confrontation”. She said that she would “get stern” and urge the children to answer, though the children wouldn’t obey her. [ 55 ] Similarly, after this argument, Ms. Chiola began to block her driveway with her car or her father’s so as to prevent Mr. Dodman from coming to her door to collect the children.

He would need to wait in his vehicle on the street. Mr. Dodman thinks this “predisposes [the children] to view me as an adversary of their mother”. In her testimony, Ms. Chiola was dismissive of Mr. Dodman’s relationship with the children: she said that he “never touched” Anna’s hair before the divorce; he had little relationship with the children prior to the end of the marriage; he “came along” to family activities (rather than being part of them); he didn’t understand the kids; and it would be different if Mr. Dodman “had a relationship” with Anna. [ 56 ] For his part, Mr. Dodman has argued with Ms.

Chiola and, on three occasions, with Samuel. These arguments have been unpleasant and have created ill-will. He’s compelled Samuel to attend access to ensure Anna attends. Mr. Dodman has followed Ms. Newell’s recommendations in modifying his behaviour to ease the children’s situation: he calls less frequently and leaves to the children whether they return his calls. [ 57 ] It’s apparent that the parents cannot make reasonable access arrangements. Though Ms.

Chiola doesn’t accept there’s been a material change in circumstances, she did suggest a number of modifications she wished to the access arrangements. [ 58 ] Where I have found that there has been a material change in circumstances, I am to vary the order in such a way that the varied order serves the children’s best interests in these new circumstances. To be clear, the circumstances which concern me are ones where the parents are not communicating and have been unequal in their efforts to remedy their deficits: while Mr. Dodman has modified his behaviour in light of Ms.

Newell’s report, but both parents have retrenched to a position that isolates them from contact with each other. Mr. Dodman doesn’t appreciate just how greatly his arguments with Ms. Chiola and Samuel have affected his relationship with the children and Ms.

Chiola doesn’t appreciate (or chooses to ignore) how her actions undermine the children’s relationship with their father. [ 59 ] As a result of agreements identified during the hearing, I am to decide a narrow range of issues: a. whether the parents may communicate by telephone or are restricted, in all but emergency circumstances, to text messages and email; b. the notice each parent must give the other of extended time with the children; c. whether Ms. Chiola may “veto” Mr. Dodman’s travel with the children outside Canada; d. the extent of respect to be given the children’s wishes; e. how Mr.

Dodman may contact the children to speak with them. Where some of these issues are related, I will address them together. The parents’ communication and Mr. Dodman’s communication with the children [ 60 ] Mr. Dodman wants to restrict his communication with Ms. Chiola to text messages and emails unless there is an emergency. Where there’s an emergency, he is willing to talk with her by telephone. For her part, Ms. Chiola won’t speak to Mr. Dodman by telephone and wants his calls to the children to be restricted to the children’s cellphones.

With these barriers built by the parents, it’s easy to see why the children won’t answer the phone – any phone – when their father calls. [ 61 ] I am not going to restrict the parents’ communication with each other or Mr. Dodman’s communication with the children as has been requested. Communication needs to be more open, not more restricted, if the children’s relationship with their father is not to be further undermined. For example, when the telephone rings and Ms. Chiola knows (as she says she does) that Mr.

Dodman is calling, she should answer the phone and bring the children to the call, rather than refuse to speak to Mr. Dodman. Similarly, Mr. Dodman shouldn’t refuse to speak with Ms. Chiola by telephone. The entrenched lack of communication sets the wrong example for the children. Mr. Dodman may call the children using their cellphones and the household landline. Notice of extended time with the children [ 62 ] Ms. Chiola has suggested three months’ written notice should be given when there’s to be extended time with the children. Mr. Dodman doesn’t disagree.

The parents agree that each parent may have extended access of up to one week twice yearly. For the sake of clarity, I define a “week” to be seven days: it is not seven days following or preceding a pre-existing weekend of access. I order that this notice provision be reciprocal: each parent must provide the other with three months’ written notice of when she or he intends to have block access with the children. Ms. Chiola’s power to veto travel outside Canada [ 63 ] The parents have agreed that the children ought not miss school during their block time with their father. This prohibition applies to both parents.

The prohibition makes good sense, particularly where Samuel is already in need of tutoring. The parents have agreed

that they shall make all major decisions about the children jointly. I was given no evidence to support Ms. Chiola being given the power to veto travel by the children outside Canada. The children’s relationship with their father is undermined by Ms. Chiola’s disrespect. I am unwilling to increase her ability to undermine the relationship by granting her the power to control travel outside Canada. [ 64 ] Mr. Dodman’s actions, in modifying his behaviour to reflect suggestions made by Ms.

Newell, give me comfort that he will respect his children’s circumstances in deciding how and when to travel outside Canada with them. [ 65 ] If either parent wants to travel with the children outside Canada for a period of less than four days, she or he shall give the other parent seven days’ written notice and provide an itinerary five days before the trip. If a parent wants to travel outside Canada for more than four days, she or he shall give the other parent twenty-one days’ written notice and provide an itinerary fourteen days before the trip. Seven days’ notice is required if the travel is for four days.

Where these notice requirements are met, the parent who is not travelling shall provide a letter to the travelling parent, confirming the itinerary. For further clarity, four days means that the date of departure and the date of return shall be within four days of each other – for example, if the children leave on Tuesday, they must return on Friday. The children’s wishes [ 66 ] Ms. Chiola asks that Mr. Dodman be required to consider the children’s wishes in making access plans and exercising access. Mr.

Dodman agrees and wants to be clear that considering the children’s wishes does not mean that he will accede to their wishes. In this, Mr. Dodman is correct: considering the children’s wishes does not mean acceding to them. It would be wise for Mr. Dodman to work with Ms. Newell to understand the power of listening to his children. [ 67 ] Each parent’s testimony gave me the opportunity to hear what he or she had to say about their children and the parenting relationship. Mr. Dodman has changed his behaviour toward the children as a result of meeting with Ms. Newell and reading her report.

In this, he has demonstrated a willingness to accept constructive guidance in dealing with the children. He is slower to adjust his behaviour toward his former wife. [ 68 ] I encourage Mr. Dodman to give further consideration to Ms. Newell’s report and, perhaps, to discuss matters with Ms. Newell. Ms. Chiola would benefit from doing the same. I am not ordering either parent to do so, merely suggesting it. It’s imperative that both parents understand the impact of their conduct on their children. It’s trite to say that children’s response to a situation is only as good as their parents’.

The greater the patience and understanding the parents can bring to their situation, the better Samuel and Anna will adapt to it. Conclusion [ 69 ] I find there has been a material change in circumstances entitling Mr. Dodman to vary his spousal support payments. Ms. Chiola’s income is now seventy percent greater than it was at the time the Corollary Relief Order was made. Mr. Dodman’s spousal support payments were to be made on a weekly basis, payable every Thursday.

His payments of spousal support shall be reduced to zero with the payment he makes on July 26, 2012. [ 70 ] With regard to child support pursuant to

section 3 of the Federal Child Support Guidelines , based on his 2010 income of $81,109.00, from July 2011 to December 2011, I order that Mr. Dodman shall pay monthly child support of $1,121.00 and from January 2012 until June 2012, he shall pay monthly child support of $1,116.00. Beginning in July 2012, based on his 2011 income of $86,642.00, I order that Mr. Dodman shall pay monthly child support of $1,185.00. [ 71 ] Pursuant to

section 7 of the Federal Child Support Guidelines , I order that beginning in July 2012, Mr. Dodman shall pay $64.00 toward the cost of Samuel’s tutoring. This amount is based on an annual tutoring cost of $1,082.50, proportionately shared between the parents, where Ms. Chiola’s income is $35,262.00 and Mr. Dodman’s, is $86,642.00. His proportionate share of the tutoring expense is seventy-one percent. [ 72 ] Mr. Dodman’s child support payments were structured on a weekly basis in the Agreement and Corollary Relief Order.

That arrangement may continue and, to the extent it does, changes in his child support shall be effective as of the first Thursday in each month when the amount changes. [ 73 ] To the extent that Mr. Dodman may have overpaid child support, Mr. Walker will calculate the overpayment and state the amount of the overpayment in the Variation Order. This amount may be offset against child support payments now owing. For this purpose, I recommend the parties enroll their payments in the Maintenance Enforcement Program. [ 74 ] Ms. Chiola’s communications with Mr.

Dodman are not to be restricted to any particular medium, nor is Mr. Dodman limited to calling the children on their cellphones. Each person may communicate with all others in any way. Each parent must give the other three months’ written notice of his or her week (seven days) of block access with the children. Ms. Chiola may not veto travel outside Canada: details of notice and consent letters are outlined in paragraph 65 of my decision. Lastly, Mr.

Dodman shall consider the children’s wishes in exercising his access, but he is not obliged to do as the children wish. [ 75 ] There was no claim for costs and I make no order for them. [75] Mr. Walker shall prepare the variation order. He is to forward the draft order to Mr. Dodman. Mr. Dodman shall identify any concerns he has with the accuracy of the order to Mr. Walker within ten days of the date when the order is sent to him. If Mr. Walker hears nothing, he will forward the draft order to me for my review and endorsement.

__________________________________ Elizabeth Jollimore, J.S.C. (F.D.) Halifax, Nova Scotia