Azougarh v. Maliakkal, 2010 ONCJ 610

Toronto Registry No. D70/98 -C-A1 DATE: 2010·XI·29 CITATION: Azougarh v. Maliakkal , 2010 ONCJ 610 ONTARIO COURT OF JUSTICE BETWEEN: HASSAN AZOUGARH, Applicant, — AND — ELIZABETH MALIAKKAL, Respondent. Before Justice Marion L. Cohen Reasons for Judgment released on 29 November 2010 CIVIL PROCEDURE — Parties — Adding party — Who “should be” party — Person financially connected to party — Spouse of natural parent in child support claim — Because claim for special expenses under

section 7 of Child Support Guidelines necessarily includes probe into household income of parent and thus would involve disclosure of financial circumstances of parent’s spouse, there would be no need to add spouse as party for that reason alone — In this case, however, pleadings revealed plausible cause of action for child support against that spouse on grounds that she had demonstrated “settled intention” to treat child as member of her family — In view of implications of such finding, spouse should be added as party and court should have benefit of spouse’s evidence and argument.

CUSTODY OF CHILD — General — Incidents of custody — Provision of therapeutic services — Pursuant to minutes of settlement, court made joint custody order with respect to boy (now 15 years old), with father’s home as primary residence — Over past half decade, boy had exhibited increasingly difficult behaviour — Some of his prescribed medication (which he took inconsistently) triggered suicidal thoughts — Worse yet, he became severely addicted to marijuana with result that he socialized almost exclusively with drug dealers and supported his habit through crime — His aggressive behaviour was escalating and becoming dangerous — Shortly after parties signed minutes of settlement, father and his second wife enrolled boy into private school from which he was promptly expelled for stealing, doing drugs and aggressive and disruptive conduct — Few months later, he moved to mother’s home who realized that boy could not live at home and could not attend mainstream educational institution — She assembled “treatment team” of professionals (including parenting co-ordinator, family doctor, educational consultant and substance abuse therapist) that concluded that boy was spiralling out of control and that he needed residential treatment in setting that offered multidisciplinary and multimodal approach — Team and parents agreed that ideal setting would be 2-part program in Utah, for which they secured OHIP funding — Within year, boy completed both wilderness part of program and “ranch” residential treatment part where he made good progress but, without further intensive residential treatment to deal with behavioural disorders, team feared relapse upon his return to Ontario — Mother had boy admitted to therapeutic boarding school in Massachusetts for 1 year, which was endorsed by professional team — Unfortunately, monthly tuition was over $5,000 and OHIP would not cover this expense — Mother already paid for first month but father felt that this sum was beyond his means and urged boy’s placement at residential treatment facility for adolescent substance abusers in southern Ontario — Mother applied to court to vary joint custody order so as to allow her to choose best possible treatment plan for child and asked court to order child support in form of special expenses under

section 7 of Child Support Guidelines to cover costs of treatment facility — Expert evidence was unanimous that Massachusetts facility best met boy’s needs at this critical stage and equally clear that Ontario facility was deficient in several ways, such as not providing specialized mental health services — Even father and his wife agreed that Massachusetts was superior but shuddered at expense — Court agreed on evidence before it that boy’s best interests would be served by his continuing attendance at Massachusetts facility — As incident of joint custody, court gave mother authority to decide between Massachusetts and Ontario facilities for boy’s residential treatment.

SUPPORT ORDERS — Assessment of quantum — Child support guidelines — Add-ons — Calculation of contribution — Reasonableness of expense — In matter of 15-year-old boy with drug addiction and serious behavioural problems, court readily accepted that cost of therapeutic boarding school in United States (which was endorsed by professional team in Ontario) was expense that was primarily health-related with high school educational component — It was therefore extraordinary expense under

section 7 of guidelines but, before court could issue support order, court had to be satisfied that this expense was: • necessary in relation to boy’s best interests • reasonable in relation to his parents’ means

No one doubted that American program would best serve boy’s interests — Unfortunately, monthly tuition was over $5,000 and OHIP would not cover this expense — Father (who was on disability income but who had reasonable prospect of new employment soon) proposed local Ontario facility but expert evidence convinced court that it was inadequate to meet child’s critical needs — Father’s second wife was breadwinner of household with annual income of $138,144 and court had already found her to be “parent” with respect to boy for child support purposes — Boy’s natural mother was also unemployed but had considerable assets and her second husband (who was also “parent” with respect to boy for support purposes) had annual salary of $130,000 — Between these 4 parents, court reasoned that there should be enough money to fund boy’s therapy for decisive one-year period — Court had given mother authority to decide between American and Ontario facilities for boy’s residential treatment — If mother chose American facility, father’s wife was to make monthly support payments of $1,800 to mother.

SUPPORT ORDERS — Entitlement — Child — Demonstration of settled intention to treat child as family member — Evidence — Inference from conduct — Even though father was access parent during most of his marriage to second wife, court found that this wife functioned as one of several parents to boy (now 15 years old) — She was sole breadwinner for household and provided financially for boy when he resided with his father and her and had listed boy on her health plan — She represented to world that she was responsible for boy as parent — Second wife had manifested intention to treat boy as family member.

STATUTES AND REGULATIONS CITED Child Support Guidelines , O. Reg. 391/97 [as amended], clause 1 ( a ),

section 3 ,

section 5 ,

section 7 , subsection 7(1) and subsection 7(2) . Family Law Act , R.S.O. 1990, c. F-3 [as amended], subsection 1(1) . Family Law Rules , O. Reg. 114/99 [as amended], subrule 7(3) and subrule 7(5) . CASES CITED Baum v. Baum , 2000 BCSC 1835 , 13 R.F.L. (5th) 258, [2000] B.C.J. No. 2565, 2000 Cars​well​BC 2604 (B.C.S.C.). Chartier v. Chartier , [1999] 1 S.C.R. 242, 235 N.R. 1, 134 Man. R. (2d) 19, [1999] 4 W.W.R. 633, 193 W.A.C. 19, 168 D.L.R. (4th) 540, 43 R.F.L. (4th) 1, 1999 CanLII 707 , [1998] S.C.J. No. 79, 1999 Cars​well​Man 25. Earles v. Earles , 2006 BCSC 221 , 146 A.C.W.S. (3d) 862, [2006] B.C.J.

No. 346, 2006 Cars​well​BC 362 (B.C.S.C.). Hyatt v. Whitney , 2002 CanLII 49537 , 28 R.F.L. (5th) 366, [2002] O.J. No. 1631, [2002] O.T.C. 300, 2002 Cars​well​Ont 1467 (Ont. Fam. Ct.). Johnson v. Johnson , 1998 CanLII 14874 , 38 R.F.L. (4th) 279, [1998] O.J. No. 1120, 1998 Cars​well​Ont 1132 (Ont. Gen. Div.). Millar v. Millar , 2001 BCSC 1198 , 108 A.C.W.S. (3d) 126, [2001] B.C.J. No. 1803, 2001 Cars​well​BC 1879 (B.C.S.C.). Raftus v. Raftus , 1998 NSCA 75 (CanLII) , 1998 CanLII 6139, 166 N.S.R. (2d) 179, 498 A.P.R. 179, 159 D.L.R. (4th) 264, 37 R.F.L. (4th) 59, [1998] N.S.J.

No. 119, 1998 Cars​well​NS 167 (N.S.C.A.). Jacqueline Y. Peeters ...................................................................... counsel for the applicant father Michael J. Stangarone ........................................ counsel for the respondent mother (moving party) [ 1 ] JUSTICE M.L. COHEN:— This is a ruling on a motion brought by the respondent within a motion to change a joint custody order dated 7 May 2010. The respondent (the “mother”), is the mother of Jeremie Curtis Azougarh, born on 15 July 1995. The applicant is Hassan Azougarh, Jeremie’s father (the “father”).

In her motion to change, the mother seeks an order of sole custody of Jeremie. This ruling concerns an incident of custody, the determination of which treatment facility the child will attend, and child support, specifically whether the costs associated with the treatment facility, should be recognized as special expenses under

section 7 of the Child Support Guidelines , O. Reg. 391/97, as amended (the “guidelines”). As a threshold issue, this ruling also determines whether the second spouses of the parties, Nanda Maliakkal (“Nanda”), and Kerrine Azougargh (“Kerrine”), should be added as parties to the proceeding, and whether one or both meet the definition of “settled intention” parent under subsection 1(1) of the Family Law Act , R.S.O. 1990, c. F-3 [as amended]. The parties intend that this ruling constitute a final order on these issues. [ 2 ] The mother and father are former spouses.

They separated in 1995, when Jeremie was 6 months of age and were subsequently divorced. The mother married Nanda in 1997 and the father married Kerrine in 2007. The mother has three children of her second marriage, ages twelve, eight and seven. The father has no other children. Until recently, the mother was employed as a corporate vice-president with a major bank. The father has been receiving W.S.I.B. [1] benefits for 6 years and is presently training to be a chef. Thus both parties are unemployed, and both are being supported by their spouses. [ 3 ] Jeremie Azougarh is 15 years of age.

He is a very complicated child. Jeremie has exhibited difficult behaviour at least since grade V. In grade VI, he ran away from home and acted out bizarrely at school (hiding under his desk). In grade VII, he stopped doing his schoolwork. Although he is bright, academically he is not at grade level. At the age of eleven, Jeremie was diagnosed with attention deficit hyperactive disorder — inattentive sub-type (“ADHD”), and subsequently with oppositional defiant disorder (“ODD”), anxiety and family adjustment issues. He was prescribed medication, but took it inconsistently.

Treating Jeremie with medication is problematic. Some of the medication that he has taken has caused him to have suicidal thoughts. [ 4 ] In addition to his other difficulties, Jeremie is severely addicted to marijuana. The evidence is that, for many years, he

has thought about little else, socialized almost exclusively with drug dealers and heavy users and engaged in knife-point robberies and other crimes to obtain money to purchase drugs. He has been expelled from school, carried a large knife on his person and has been the subject of criminal charges. Prior to the most recent interventions, Jeremie was described as rude, impulsive, aggressive, easily angered, inattentive and restless. He lied and was manipulative.

His aggressive behaviour was escalating and dangerous. [ 5 ] The special expenses for which the mother claims contribution relate to a therapeutic boarding school in which Jeremie is provisionally enrolled, called the Academy at Swift River. The mother asks for an order : • that Jeremie attend the Academy at Swift River; • that the father pay a 50% proportional share of Jeremie’s retrospective and on-going medical expenses while attending the Academy at Swift River; • that income be imputed to the father to determine his proportionate share of medical expenses; and • for other incidental relief.

The father opposes the motion. He asks for an order that Jeremie attend a government-funded treatment facility located in Elora, Ontario called Portage. [ 6 ] It is important at this point to note the complexity of the family dynamics existing in this case. The mother and father have a long history of conflict. The mother alleges that the father was physically violent and verbally and emotionally abusive to her during their marriage. She states that some of this abuse occurred in Jeremie’s presence.

She also states that, since the separation, the father has treated her in a grossly disrespectful and disparaging manner, also in Jeremie’s presence. She describes an incident in which During an access exchange at 50 Rosehill where I lived at the time, the Applicant grabbed my genitals in Jeremie’s presence. Jeremie was sobbing uncontrollably and clutching my leg. [ 7 ] In 2009, Jeremie came to live with the father for a month. The mother alleges that the father physically abused Jeremie during this period. [ 8 ] The father alleges that Jeremie was abused in the mother’s home.

The mother married Nanda when Jeremie was 22 months of age. The father and Kerrine believe that Jeremie was physically and emotionally abused by Nanda. He states that, when he raised this possibility with Jeremie, Jeremie would not admit there was abuse at the time, but we saw many signs of abuse including unexplainable bruises. [ 9 ] Jeremie has also alleged that the abuse occurred. In his therapy, he stated that Nanda physically abused him from the time he was an infant and that Nanda abused the mother as well. The mother denies the abuse, but acknowledges that Jeremie’s relationship with Nanda was strained.

The father also states that the mother spoke about him in a disparaging manner to Jeremie. [ 10 ] This is a case where the parents have “tried everything and nothing has worked”. The evidence that Jeremie suffers from substance abuse that has led to criminal charges and danger to himself and others, intractable behavioural issues that may not be amenable to medication, and family dysfunction including physical abuse (despite disagreement about who was the abuser), is common ground. His problems are various, severe and complex.

Given the history that I have recounted, it is clear, and consonant with the expert evidence to which I will refer at a later point, that the treatment plan for Jeremie must extend well beyond addressing his substance abuse. Jeremie cannot live at home and he cannot attend a mainstream educational institution. Choosing the best possible treatment plan for him is a difficult task. [ 11 ] The parties have been in court on numerous occasions. In March 1996, the mother was granted sole custody of Jeremie.

The father’s access was set out in an order of the court dated 5 November 1998 and his child support obligations in several orders. On 18 October 2000, he was ordered to pay $326 per month, based on an annual income of $37,600. [ 12 ] In 2008, the father initiated custody proceedings. He states that he and Kerrine had become increasingly concerned about Jeremie’s safety in the mother’s home. On 14 August 2009, largely as a result of a parenting assessment in which they had participated, the parties entered into minutes of settlement.

The minutes provided that the parties would share joint custody of Jeremie, with primary residence at the father’s home. The parties agreed to use the services of a parenting co-ordinator to resolve their disputes. The minutes were incorporated into a court order, dated 7 May 2010. It is this order that the mother now seeks to vary. [ 13 ] The minutes of settlement contemplated special expenses for Jeremie and provided that the sharing of special expenses would be 86% to the mother and 14% to the father. The plan was for Jeremie to attend Kings Christian Collegiate.

Pursuant to the agreement, the mother was to pay the school expenses and the parties were to share payment, in proportion to their incomes, of medical expenses, tutoring costs, Jeremie’s cell phone, and agreed upon

section 7 expenses. The proportionate sharing assumed an annual income of $125,000 for the mother, and $29,000 for the father. No table support was to be paid in light of these special arrangements. [ 14 ] Pursuant to the minutes, in September 2009, Jeremie came to live with the father and Kerrine. He had been removed from the public school system and sent to boarding school, without success. The father and Kerrine enrolled Jeremie in King’s Christian Collegiate school in Oakville, where they reside. The arrangement broke down almost immediately.

Over the short period that he resided with his father, Jeremie was expelled from school for stealing and doing drugs. He was described as lying, stealing, “stoned, aggressive and fighting” and “committing crimes on a daily basis”. The father and Kerrine feared for their own safety and called the police numerous times. On one occasion, Jeremie had a swollen eye that he said resulted from his father’s head-butting him. The father denies that he did this. The father blames the mother for giving Jeremie “freedom to roam and do drugs.” Nonetheless, on 4 October 2009, Jeremie returned to his mother’s care.

The father states that . . . Jeremie was unable to reside with me in September, 2009 because he was a full blown drug addict. . . . He was unable to hide his continued addiction and behavioural issues in my home . . .

[ 15 ] In addition to the parenting co-ordinator who had been assisting the parties, the mother has assembled a “treatment team”. The team includes, among others, a very concerned family doctor, Dr. Susan Parker, who seems to play a supervisory role, an educational consultant and a substance abuse therapist. Jeremie has also been seen by a psycho-educational assessor on at least two occasions and an ADHD specialist.

In November 2009, the treatment team concluded that Jeremie was “spiralling out of control” and that he required residential treatment in a setting that would provide a “multidisciplinary and multimodal approach” to “treat his concurrent disorders simultaneously.” Dr. Parker expressed the view that Jeremie was becoming dysfunctional and dangerous. [ 16 ] The parties and the treatment team were unable to identify a suitable treatment facility for Jeremie in Ontario.

They recommended that Jeremie . . . receive out-of-country treatment at Second Nature Wilderness Program in Duchesne, Utah [which] is certified by OHIP as a preferred provider of out-of- country treatment for Ontarians . . . [ 17 ] Doctor Parker requested approval from OHIP to fund the Second Nature Wilderness Program.

In her letter to OHIP, she stated that If [Jeremie] does not receive treatment in the very near future, I expect that he will continue to endanger the lives and bodily well-being of himself and others, with very likely catastrophic consequences in the foreseeable future. [ 18 ] As a result of this opinion, the parties obtained OHIP funding. In November 2009, Jeremie was admitted into the wilderness program in Utah. [ 19 ] Jeremie completed the Second Nature Wilderness program on 23 February 2010 and was immediately admitted into Discovery Ranch in Springville, Utah.

Discovery Ranch is a residential treatment centre offering a structured program intended to address the treatment needs of children like Jeremie. The Discovery Ranch was considered the second stage in Jeremie’s wilderness treatment program. Lynn Nelson, a therapist at Discovery Ranch, became part of the treatment team. [ 20 ] The Discovery Ranch program concluded in October 2010. After consulting with the various treatment providers in Utah, Dr. Parker reported that Jeremie was doing well in the treatment programs and making good progress. It appears that he has not used drugs for a year. However, in Dr.

Parker’s opinion, Jeremie continued “to require intensive residential treatment for his concurrent disorders in order to prevent relapse upon his return to Ontario”. OHIP agreed that the funding would continue until 3 October 2010, but stated that it would not be renewed thereafter. OHIP has concluded that appropriate treatment facilities exist in Ontario to address Jeremie’s current treatment needs. As a consequence, the parties must now decide upon the next step in Jeremie’s treatment.

Because OHIP will no longer fund the out-of-country treatment, the parents must settle upon a program that is not only promising but affordable. They have been unable to come to an agreement and the matter has come before me for resolution. [ 21 ] The mother wishes Jeremie to continue treatment in the United States, at the Academy at Swift River, a therapeutic boarding school in Western Massachusetts. The Academy at Swift River is a clinically-oriented, therapeutic boarding school in the Berkshire Mountains. Swift River is an eight-hour drive from Toronto. The school tuition costs over $5,000 per month.

The mother believes the Swift River program is best able to meet Jeremie’s needs. The father states that the cost of the Swift River program is beyond the means of the parties. He wishes Jeremie to attend Portage, a residential treatment facility for adolescent substance abusers in Elora, Ontario, a ninety-minute drive from Toronto. [ 22 ] The parties have asked me to make a final determination based on the affidavit evidence before the court.

On 1 November 2010, I made an interim “without prejudice” order, providing that Jeremie would be transferred to the Academy at Swift River and that the mother would be responsible for the initial payment necessary to effect his enrolment. I also ordered that the parties complete their application to Portage. Jeremie has been at Swift River since 12 November 2010 and, according to the applicant, he is flourishing. According to his clinical counsellor at Swift River, Jeremie has engaged in the early aspects of his treatment and has made friends.

However, Jeremie cannot remain there unless one or both parents are prepared to pay the fees. 1: WHICH PROGRAM IS BEST FOR JEREMIE? [ 23 ] In 2009, Dr. Parker believed that “it would be therapeutically helpful for Jeremie to be physically apart from his family”. This opinion continues to be held by all of Jeremie’s treatment providers. In July and August 2010, Dr.

Parker expressed the opinion that, although Jeremie had made “slow and steady progress” while at Discovery Ranch, and “important improvements with respect to family relations and self-esteem, . . . he continues to require a structured residential program to help him achieve the level of independence he will require in order to prevent relapse upon his return to Ontario.” This conclusion is not in dispute.

On the question that is in dispute — that is which program is best for Jeremie — on the basis of the evidence before me and on a balance of probabilities, I am satisfied that the Academy at Swift River is more likely to address Jeremie’s multiple and complex treatment needs than Portage. [ 24 ] I have come to this conclusion by reason of the following: • Hamish White, the addictions counsellor, stated that a treatment centre for Jeremie should be: ◦ youth centred; ◦ timely admission date; ◦ inpatient; ◦ able to comprehensively address emotional, psychiatric, behavioural, adjustment, learning issues as well as addiction recovery issues; ◦ flexible and able to work with defiant and aggressive behaviour; and ◦ able to offer 24 hour support and care.

Swift River meets all these criteria. • The professional opinions are unanimous in endorsing the Swift River facility. Jeremie’s educational consultant, his current therapist, his family physician and his addictions counsellor all share this opinion. • On the other hand, none of the treating professionals favour Portage. On 15 September 2010, Dr. Parker stated that it would not be suitable for Jeremie to attend Portage.

Jeremie’s educational consultant believes it would be detrimental for Jeremie to attend Portage. • On the basis of the expert opinion and the limited evidence with respect to actual programming at both facilities, I find that Swift River offers the more comprehensive program, in terms of treatment and education. It appears that, at Portage, the kind of intense individual and family therapy that Jeremie requires is not the norm.

According to the Drug and Alcohol Registry of Treatment maintained by OHIP, the Portage program does not provide specialized mental health services, although exceptions are made on an individual basis. • Hamish White, the substance abuse counsellor, recommends that Jeremie stay at Swift River for one year until he graduates. He states that “This gives Jeremie the best chance at recovery”.

Although Jeremie’s stay at Portage could be extended, the usual course would be significantly shorter than at Swift River. • On 15 September 2010, Hamish White stated that Portage was even less suitable than previously, given the fact that Jeremie had been drug-free for approximately 10 months. Jeremie would also be “the youngest of the group, with the maturity of a younger child.” Finally, Portage is a primary treatment facility that is for students who are at the beginning of treatment.

Although Portage is presently willing to accept Jeremie, in July 2010, the institution had suggested that it would be clinically inappropriate for Jeremie to enrol in their program because of his slow rate of progress. The basis for Portage’s change in position is not clear to me. I accept that the dynamics described by Hamish White could undermine Jeremie’s recovery. • The mother fears that Jeremie will run away if placed at Portage.

This is a realistic fear because of Portage’s proximity to Toronto. • The mother believes that the academy at Swift River is “the best fit for Jeremie.” The mother has been deeply involved in all aspects of Jeremie’s treatment and in communication with all his service providers. Her opinion should be given weight. • The father and Kerrine, who have also been deeply involved in researching options for Jeremie, agree that Swift River is “a wonderful program.” The issue for them is the expense.

The father states that “I am prepared to consent to Jeremie attending Swift River Academy if the mother covers the costs” • I have no doubt that, if OHIP had continued to fund the treatment, Jeremie would have been placed at Swift River with little controversy. [ 25 ] The only advantage that Portage would appear to offer Jeremie is that it would facilitate more frequent visits from his family members. I do not minimize the importance of this contact, but I find that the parents will be able to visit Jeremie regularly in Swift River.

The father and Kerrine correctly point out the expense of the visits will be a financial burden. Nonetheless, it is a burden that they have managed since Jeremie was placed in the United States. The proximity of Portage is not sufficient, in my view, to tip the balance. Furthermore, although each parent asserts that Jeremie favours his or her position, I am unable to give any weight to either view. Jeremie did not testify, did not file an affidavit and was not represented at this hearing. I have no evidence that he is unhappy at Swift River, although I do have evidence that he agrees to go where he is sent.

Not having seen Portage, Jeremie’s opinion about it can have little foundation. [ 26 ] In the result, on the evidence before me, I find that Jeremie’s best interests would be served by his continuing to attend the Academy at Swift River. The question then is whether the costs associated with this program should be recognized as special expenses under the Child Support Guidelines and, if so, to what degree the parties should contribute to this cost. [ 27 ] Before I turn to these issues, I wish to address two threshold questions.

The first is whether the stepparents, Kerrine and Nanda, should be named as parties to this application. The second is whether either or both should be found to be a “parent” within the meaning of

section 1 of the Family Law Act . [ 28 ] Nanda has consented to an order naming him as a party and to a finding that he is a parent under the Act. But what about Kerrine? 2: SHOULD KERRINE BE NAMED AS A PARTY TO THIS APPLICATION? [ 29 ] Subrule 7(3) of the Family Law Rules , O. Reg. 114/99, as amended, provides that a person starting a case shall name a person as a party, if that person “should be a party to enable the court to decide all the issues in the case”. In this case the mother did not name Nanda and Kerrine as parties when she started her case.

She also did not assert a child support claim against Kerrine as a “settled intention” parent or on any other basis, and she has not asked for an order amending her pleadings. The father argues that, for these reasons, the mother is precluded from now seeking to add Kerrine as a party. I disagree. [ 30 ] This application was commenced by the mother on 20 September 2010. She was unrepresented at the time. Because a decision had to be made quickly, the matter has proceeded on an urgent basis.

In these circumstances, it is not surprising that errors have occurred in the process and pleadings and that important issues were overlooked at the outset. Accordingly, on consent, I outlined a process on 20 October 2010, to bring these preliminary issues before the court. The spouses were served and represented. The motion to add them as parties and the motion for a finding they were parents, proceeded, on consent, with the substantive motion. [ 31 ] Subrule 7(5) of the Family Law Rules provides that a court may order that any person who should be a party shall be added as a party.

There is no limitation on when this relief can be sought. Because both parents have minimal incomes and because the father’s opposition to the Swift River program is based on financial grounds, disclosure of the financial circumstances of Nanda and

Kerrine is, in my view, necessary and relevant to this proceeding. While it is true that the means of both parents are to be considered in the analysis in

section 7 of the guidelines, and would include the household income of the parents, these facts, in isolation, would not necessarily require that Kerrine and Nanda be added as parties. Their financial information, should they be willing, could be placed before the court without the need for their participation as parties on the substantive motion.

What is more compelling for me is the question of whether Nanda and Kerrine could be found on the motion to be “parents” within the meaning of the Family Law Act , and thus liable to contribute to Jeremie’s support. [ 32 ] A considerable amount of material has now been filed by all the parties. The Family Law Act defines a parent as including “a person who has demonstrated a settled intention to treat a child as a child of his or her family”. The pleadings clearly reveal a plausible cause of action against both spouses, Nanda and Kerrine, as “settled intention parents.” See Johnson v.

Johnson , 1998 CanLII 14874 , 38 R.F.L. (4th) 279, [1998] O.J. No. 1120, 1998 Cars​well​Ont 1132 (Ont. Gen. Div.). Considering the implications of such a finding, Nanda and Kerrine should be added as parties and the court should have the benefit of their evidence and argument. Nanda has already consented to being added as a party. In the result, I am ordering that that Kerrine Azougarh and Nanda Maliakkal be added as parties to the proceeding. In addition, I am ordering that the substantive motion is amended to include a claim for child support against both newly named parties.

As Nanda has also consented to a finding that he is a parent within the meaning of the Act, I turn to the question of whether a similar finding should be made respecting Kerrine. 3: IS KERRINE A “SETTLED INTENTION PARENT”? [ 33 ] The definition of “parent” in subsection 1(1) of the Family Law Act includes “a person who has demonstrated a settled intention to treat a child as a child of his or her family.” The leading case on the test to be applied in determining this issue is Chartier v. Chartier , [1999] 1 S.C.R. 242, 235 N.R. 1, 134 Man.

R. (2d) 19, [1999] 4 W.W.R. 633, 193 W.A.C. 19, 168 D.L.R. (4th) 540, 43 R.F.L. (4th) 1, 1999 CanLII 707 , [1998] S.C.J. No. 79, 1999 Cars​well​Man 25. In Chartier v. Chartier , Justice Michel Bastarache stated the following (at paragraph 39) (emphasis mine): [39] Whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewed objectively . What must be determined is the nature of the relationship. . . . The court must determine the nature of the relationship by looking at a number of factors, among which is intention.

Intention will not only be expressed formally. The court must also infer intention from actions , and take into consideration that even expressed intentions may sometimes change. The actual fact of forming a new family is a key factor in drawing an inference that the step-parent treats the child as a member of his or her family, i.e. , a child of the marriage.

The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child's relationship with the absent biological parent.

The manifestation of the intention of the step-parent cannot be qualified as to duration, or be otherwise made conditional or qualified, even if this intention is manifested expressly. . . . [ 34 ] In the case before me, I have considered the following: • Kerrine and the father are married. Although they have only been married for three years, I would note that, in Chartier v. Chartier , the stepparent had also been married to the biological parent for only three years.

Jeremie resided with the father and Kerrine during access visits and for the brief period that the father had primary residence. • The father has been disabled for a considerable period of time and Kerrine has paid the bulk of the household expenses. There is no evidence the father took sole responsibility for Jeremie’s expenses while in his home, or that this was an issue in any way. • Kerrine funded the father’s custody litigation which resulted in Jeremie’s coming to live with her and the father.

The cost of the litigation was approximately $50,000. • Kerrine has included Jeremie on her health plans at work. • Kerrine has been actively involved in the treatment discussions and decisions involving Jeremie. She attends meetings with the parenting co-ordinator, schools and health care professionals. She is active in the meetings.

She researches treatment options for Jeremie and communicates her findings to the mother and others. • Kerrine has communicated with the mother on a regular basis, managing support payments under the parties’ agreement, and advocating vociferously for her view of Jeremie’s best interests regarding treatment, medical, dental, and educational decisions. • Numerous e-mails between Kerrine and the mother, or others, relative to decisions about Jeremie, have been filed. In each case, Kerrine refers to herself and the father as “We”, or, on occasion, to herself only, as decision-makers.

For example: ◦ 3 September 2010: “We start working to get Portage when OHIP runs out;” ◦ 10 September 2010: “You have applied to Swift River without our permission so what makes you thinks you can stop us for doing the same for our choice of treatment facilities? ◦ 19 September 2010: “We are not giving permission for enrolment at Swift River at this point.” • The father in his communications also uses “We” to describe himself and Kerrine and their joint responsibility for Jeremie.

In his affidavit, the father says “We do not have the means to send Jeremie to private school. . . . we have been very clear about our financial status and limitations.” • Kerrine directly communicated with various service providers about Jeremie, including the law firm handling the OHIP applications, the therapists at Discovery Ranch regarding Jeremie’s progress and medication, and in discussions about educational strategies.

• In the e-mails, Kerrine talks about “rebuilding our relationships” with Jeremie, and that “We are all equally entitled to speak to and involve Jeremie in our process as we see fit — we don’t need your permission to have Jeremie speak to individuals about options . . .” • Kerrine attended with the father on a tour of Portage in July and discussed Jeremie’s admission with the intake co- ordinator. • It is clear that, as between the parties and as between Kerrine and Jeremie’s treatment providers, Kerrine is regarded as a parent.

In his affidavit of 19 October 2010, the father describes a joint call with Jeremie’s therapist at Discovery Ranch, a call in which “all four of Jeremie’s parents” participated. • Although it is true that Jeremie expresses hostility to Kerrine in his letters and denies her role as a parent in his life, Jeremie’s relationship with all parties is highly conflicted. Animosity between the child and stepparent does not preclude a finding that the latter stood in place of a parent. See Millar v. Millar , 2001 BCSC 1198 , 108 A.C.W.S. (3d) 126, [2001] B.C.J. No. 1803, 2001 Cars​well​BC 1879 (B.C.S.C.).

Jeremie also phoned Kerrine on mother’s day. [ 35 ] Kerrine denies that she has assumed or intended to assume a parental role. She states that she has handled the e-mail communications and discussions with the professionals because of the father’s difficulty with English. She states that everything she did was motivated solely her desire to assist her husband whom she loves deeply. I do not doubt Kerrine’s love for her husband, but the tone, content, intensity and frequency of her e-mails and other activities belie these equivocations.

Kerrine states that Jeremie did not regard her as a parent as he has made clear in the correspondence that has been filed. However, neither Kerrine’s subjective view of her relationship with Jeremie, nor the manner in which she characterizes her role, are decisive of this issue. [ 36 ] The test is objective. Whether a person stands in the place of a parent must take into account all factors relevant to the determination, viewed objectively. The court must infer Kerrine’s intention from her actions. Did she manifest the intention of a stepparent? In my view, she did. Kerrine functions as one of Jeremie’s parents.

Notwithstanding that the father was an access parent for most of the three years of their marriage, Kerrine became part of his family. She provided financially for Jeremie when he resided with her and the father and through her health plan. She certainly represented to the world that she was responsible as a parent. In my view, she manifested an intention to parent Jeremie. [ 37 ] Jeremie is 15. He has a close and deep relationship with his mother and Kerrine has never sought to displace that relationship. I have no evidence to suggest that Nanda has sought to take the place of Jeremie’s father.

Nonetheless, both Nanda and Kerrine are functioning as parents of Jeremie in their respective homes, in their interactions with the other family, and in their interaction with others outside the home. The numerous service providers are well aware of these facts. [ 38 ] In my view, Kerrine’s commitment to the father, included joining him in parenting Jeremie, went well beyond kindness to his son. Thus, I conclude that that Kerrine has demonstrated a settled intention to treat Jeremie as a member of her family and that she is a parent within the meaning of

section 1 of the Family Law Act . [ 39 ] The Supreme Court holds in Chartier v. Chartier , supra , that [42] . . . The obligations of parents for a child are all joint and several. The issue of contribution is one between all of the parents who have obligations towards the child, whether they are biological parents or step-parents; it should not affect the child. . . . [ 40 ] As a result of my findings, Kerrine and Nanda are obliged to contribute to Jeremie’s support. 4: APPLICATION OF THE CHILD SUPPORT GUIDELINES [ 41 ] The mother wishes Jeremie to remain at Swift River for 12 months.

Other than visits home which may be permitted by the program, Jeremie will be residing full-time at Swift River. Because Jeremie will not be residing at home for this period, the parties agree that no table support will be paid. The claim in this case is for special expenses. Two sections of the Child Support Guidelines are engaged on the motion —

section 7 and

section 5 . [ 42 ] The relevant portions of

Section 7 provides as follows: 7. Special or extraordinary expenses.—

(1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under

section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation: . . . (

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses; (

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; . . .

(1.1) Definition, “extraordinary expenses” .— For the purposes of clauses (1)(

d) and ( f ),

“extraordinary expenses” means (

a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent’s or spouse’s income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or (

b) where clause (

a) is not applicable, expenses that the court considers are extraordinary taking into account, (

i) the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child, (iv) the overall cost of the programs and activities, and (

v) any other similar factors that the court considers relevant.

(2) Sharing of expense.— The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. . . .

Section 5 provides that 5. Spouse in place of a parent.— Where the spouse against whom an order for the support of a child is sought stands in the place of a parent for a child or the parent is not a natural or adoptive parent of the child, the amount of the order is, in respect of that parent or spouse, such amount as the court considers appropriate, having regard to these guidelines and any other parent’s legal duty to support the child. [ 43 ] Unlike

section 3 of the guidelines, which presumptively provides for table support, both

section 7 and

section 5 involve the exercise of judicial discretion. When exercising its discretion, the court should also consider the objectives of the guidelines. In resolving this matter, I have also taken account that one objective of the guidelines (in clause 1 ( a )) is: (

a) to establish a fair standard for children that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation; [ 44 ] In contrast to

section 3 of the guidelines which is only concerned with the income of the paying parent, sections 7 and 5 involve the consideration of a variety of factors in assessing the needs of the child, the means of the parents and the appropriate contribution of a step-parent. Because this is a claim for

section 7 expenses, I find it appropriate to begin with the application of

section 7 to the facts before the court, and then, if necessary, to consider the effect of

section 5 on the apportionment of any recognized expenses. [ 45 ] The Swift River expenses are primarily health-related with an educational element. They are intended to address Jeremie’s substance abuse, behavioural, psychological and family adjustment issues while providing him with a high school education. It is common ground that the expenses are extraordinary within the meaning of

section 7 . However, to result in an order under order under subsection 7(1), the court must be satisfied that the extraordinary expense is: • necessary in relation to Jeremie’s best interests, and • reasonable in relation to the means of the parents. The spending pattern of the parents in respect of the child during cohabitation is not relevant in this case since the parties separated when Jeremie was 6 months of age.

The position of the father and Kerrine is that the special expenses associated with Jeremie attending Swift River are neither necessary nor reasonable. [ 46 ] Jeremie’s monthly tuition at Swift River is $5,576. He has incidental expenses of $100 per month. It is likely there will be other expenses associated with tutoring, medical or dental expenses. A more reasonable estimate of Jeremie’s monthly cost of attending Swift River Academy is $6,000 per month.

The father and Kerrine argue that the Swift River expenses are unnecessary because Portage is an available, cost-free alternative that adequately addresses Jeremie’s best interests. [ 47 ] I have already assessed the relative merits of the two plans. It is undisputed that Jeremie’s needs are acute and complex. When Jeremie was originally sent to the Second Nature wilderness program, the medical opinion was that he was a danger to himself and others and that his multiple disorders were putting him in life-threatening situations. This opinion continued to prevail when he moved to Discovery Ranch.

Although Jeremie has made significant improvements, the threat of relapse is not remote. His progress is slow. He requires a year of treatment. Dr. Parker forecast catastrophic consequences if Jeremie did not receive appropriate treatment. On the basis of the evidence before me, I have found that, of the two options suggested, Swift River most comprehensively addresses Jeremie’s multiple special needs. Thus, I am satisfied that the expense of the Swift River program is necessary in relation to Jeremie’s best interests.

The difficult question is whether the expense is reasonable in relation to the parents’ means. [ 48 ] Neither the mother nor the father is employed. The father has a modest income. Until recently, he was receiving $28,000 per year from the W.S.I.B., but his benefits have been reduced to $13,000 per year. He has been unable to find employment in the area for which he was trained by the W.S.I.B. He has stated that he finds it humiliating that he is unable to work and attributes his failure to seek employment for a number of years to repeated surgery that he has required on his fingers.

He is close to completing a chef’s course that should lead him to more remunerative employment. In the circumstances, because his health and training have made him unavailable for employment, I have declined to impute additional income to him at present. I expect that, once the chef’s program is completed, he will be in a position to obtain employment and to contribute to the cost of Jeremie’s treatment.

[ 49 ] At the present time, Kerrine is meeting most of the father’s expenses. Even had I not found her to be a parent, her means would have been, and are, relevant to the father’s ability to contribute to the

section 7 expenses. See Baum v. Baum , 2000 BCSC 1835 , 13 R.F.L. (5th) 258, [2000] B.C.J. No. 2565 2000 Cars​well​BC 2604 (B.C.S.C.); Earles v. Earles , 2006 BCSC 221 , 146 A.C.W.S. (3d) 862, [2006] B.C.J. No. 346, 2006 Cars​well​BC 362 (B.C.S.C.); Raftus v. Raftus , 1998 NSCA 75 (CanLII) , 1998 CanLII 6139, 166 N.S.R. (2d) 179, 498 A.P.R. 179, 159 D.L.R. (4th) 264, 37 R.F.L. (4th) 59, [1998] N.S.J. No. 119, 1998 Cars​well​NS 167 (N.S.C.A.); Hyatt v. Whitney , 2002 CanLII 49537 , 28 R.F.L. (5th) 366, [2002] O.J. No. 1631, [2002] O.T.C. 300, 2002 Cars​well​Ont 1467 (Ont. Fam.

Ct.). [ 50 ] Kerrine is an open-pit-mining engineer and is steadily employed. She appears to be a valued employee with significant responsibilities. In her financial statement, she shows her annual income as $138,144. This figure includes R.R.S.P. withdrawals of $832 per month. Kerrine and the father have no other dependents. One of her major expenses is the cost of the father’s chef’s course ($1,230/month). This course concludes shortly. She contributes $500 per month to charity. She owns the matrimonial home in Oakville, which she values at $340,000. There is a mortgage on the home of $264,795.

Her other debts include an R.R.S.P. loan of $19,425, and a line of credit of $46,000 towards which she is paying at the rate of $125 per month. I gather from her material that her major concern has been a debt for legal fees related to the recent custody action, for which she shows an outstanding balance of $8,000. Kerrine shows her net worth as $88,000. [ 51 ] The mother has minimal income at present. At the time that her employment was terminated at the bank, she was earning $225,000 per annum. She has a bachelor of science in accounting and a Masters in Business Administration.

She has recently purchased a restaurant franchise, but has not yet obtained a location. The mother shows monthly expenses of $17,610, which includes $6,250 for Jeremie’s current treatment. She also shows an education expense for one of her other children to attend private school in Toronto at a cost of $1500 per month. On her financial statement, the mother shows 50% ownership of the matrimonial home, valued at $445,000 and 100% ownership of a rental property valued at $475,000. Both properties are mortgaged. She shows her net worth as $236,824.

The mother has already paid $8,198.84 to enrol Jeremie in Swift River. [ 52 ] Nanda currently supports the family. Nanda owns and operates a software consulting company focused on large corporate financial systems. In 2009, Nanda drew a salary of $130,000. He also received rental income. In the absence of financial statements from his company and adequate evidence in relation to his rental income, it is not possible for me to assess his actual income. Nanda jointly owns the matrimonial home and the rental property with the mother. His company owns a 137-acre parcel of undeveloped land near or in Toronto.

He values his net worth at $272,177. [ 53 ] The mother is asking the court to consider her income together with Nanda’s, and to find the household income to be $130,000. In my view, this is not a reliable figure. I find it likely that her household income is much higher. Nanda did not attend at the hearing, but he wrote a letter to the court in which he states that I care deeply for Jeremie.

I would do anything personally to get Jeremie the help he needs, whether we need to apply for medical loans, credit lines, or liquidate assets. [ 54 ] I conclude that mother and Nanda have access to income, assets and credit upon which they are willing to drawn to pay their share of Jeremie’s special expenses. [ 55 ] I have considered the income and the means of the four parents. The Swift River program lasts for 12 months. Presumably Jeremie will return to Toronto at the end of the program and the issue of his support can be renegotiated or reviewed by the court. Jeremie is at a critical stage in his treatment.

He is making slow but steady progress. All four parents have shown their commitment to his treatment.

Considering the income and means of all four parties as a totality, and considering the extremity of Jeremie’s needs and the likely duration of the expense, I conclude that the expense of Jeremie’s treatment at Swift River is reasonable in the circumstances. [ 56 ] I have taken the following principles particularly into account in determining the allocation of special expense contributions among the four parents: [ 57 ] One of the objectives of the guidelines is to establish a fair amount of child support that ensures that children benefit from the means of their parents. [ 58 ] Subsection 7(1) of the guideline provides that a court may order an amount to cover a portion of special expenses.

Subsection 7(2) provides that the guiding principle in determining the amount of an order for special expenses is that the expense is shared by the parents or spouses in proportion to their respective incomes. The proportionate sharing of expenses is, however, a guiding principle, not a rule. [ 59 ]

Section 5 provides that, when ordering child support against a stepparent, the court may order an amount that it considers appropriate. I recognize that the application of

section 5 in the case law has largely resulted in a reduction of the table amount to be paid by a stepparent. Nonetheless there is nothing in the wording of

section 5 that precludes its application in

section 7 cases, or limits the jurisdiction of the court to reducing the amount of what otherwise would have been ordered against a biological parent.

In some circumstances, such as those before me, it may be appropriate to order that a stepparent pay more than a biological parent, having regard to the child’s needs and the relative means of the stepparents and the biological parents. [ 60 ] In arriving at my determination of the appropriate amount for each parent to contribute, I have considered the marked superiority of the Maliakkal’s (mother and Nanda) income and assets over those of the Azougahrs (father and Kerrine) and the magnitude of Nanda and Kerrine’s ability to pay relative to their spouses.

I have considered the fact that Nanda has stood in the role of Jeremie’s father since Jeremie was an infant while Kerrine has been in the role of his parent for only three years. I have taken into account the father’s lack of current employment, but also his duty to obtain employment and his professed willingness and future ability to do so. I have also taken into account the costs associated with visiting Jeremie at Swift River. Finally, I wish to state that I am aware that my order will demand extraordinary efforts by all the parents.

I ask them to bear in mind that this is a one year, time-limited order motivated by emergency and exigent circumstances. I am heartened by the great commitment that all the parents have shown to addressing Jeremie’s special needs. They have done their best to avert catastrophe, but Jeremie is not yet well.

[ 61 ] In the result, I am resolving this issue in the following fashion: Paragraph 30 of the order of 7 May 2010 will be deleted and the following substituted therefore: 1. As an incident of the joint custody, the mother will have the right to determine where Jeremie will receive residential treatment. She will be limited to choosing between Portage and Swift River. 2. In the event the mother chooses Swift River, the father, Hassan Azougarh, will pay the mother $200 per month, commencing on 1 November 2010, as a contribution to the Swift River expenses. 3.

In the event that the mother chooses Swift River, Kerrine will pay the mother $1,800 per month, commencing on 1 November 2010, as contribution to the Swift River expenses. 4. The balance of the Swift River costs will be paid by the mother and Nanda, who will be jointly and severally responsible for the necessary payments. 5. The mother will provide the father and Kerrine an itemized statement each month setting out the costs incurred in respect of Swift River. 6.

All parties will be entitled to receive information regarding all aspects of Jeremie’s treatment directly from the service providers and to communicate directly with the service providers. 7. The father will notify the mother forthwith upon his obtaining employment and provide particulars of same. 8. If Jeremie ceases to attend the academy at Swift River, the amount of child support payable will be negotiated between the parties. In the event that they are unable to reach agreement after a reasonable effort, any party may apply to the court to have the matter determined. 9.

There will be a support deduction order. A party seeking costs must file a written submission within 15 days of today’s date. The responding party will have 10 days to reply and the party claiming will have 5 days for final reply.