2024 MBKB 25, 2024 MBKB 25

Date: 20240205 Docket: FD 11-01-97680 (Winnipeg Centre) Indexed as: A.A.L. v. J.F. Cited as: 2024 MBKB 25 COURT OF KING’S BENCH OF MANITOBA (FAMILY DIVISION) B E T W E E N: ) A.A.l. , ) A.A.L. petitioner, ) on her own behalf ) - and - ) ) J.F. , ) Sheree I. Walder respondent. ) for the respondent ) ) ) Judgment Delivered: ) February 5 , 2024 PETERSEN J. [ 1 ] The respondent, J.F. (the “father”), seeks to vary the parties’ current shared parenting time with their 13-year-old daughter, T.

He seeks the majority of parenting time, exclusive decision-making responsibility, child support to accord with the ongoing parenting arrangement he seeks, and costs. [ 2 ] The petitioner, A.A.L. (the “mother”), opposes the relief sought by the father and instead seeks the majority of parenting time with T. [ 3 ] A unique aspect of this case is that the mother presented to the Court as a freeman on the land, sovereign citizen, or of similar beliefs and ideology ( see Meads v. Meads , 2012 ABQB 571 ).

She argued that the Court has no jurisdiction over herself or T. and that the current court order does not apply to them. She argued this on the basis that she purports to be the beneficial owner of a trust that holds herself and her children, including T., as property. She indicated that her new husband is the settlor of the trust and is authorized to administer the trust. She stated that the Court is not authorized to deal with the trust. [ 4 ] She also refused to answer to “Ms. L.” and instead insisted that she be addressed as “A. A.”.

In the court documents she describes herself as “A.A. of L. aka A.: Beneficiary”. She filed multiple “affidavits” that do not follow the King’s Bench Rules, make no sense, and contain what appears to be a red ink fingerprint over her signature of “A.: Beneficiary”. Several of these “affidavits” attach documents that also make no sense. One of the attached documents is a bill that the mother sent to the father on March 23, 2023 for $4,259,307.00. This bill purports to be the costs to be paid for carrying T. for nine months, birthing her, and the necessities for T. as property.

The mother also alleges that she has “superior equity/equitable interest” in T. as property. [ 5 ] The mother’s material and argument, as it relates to her identify and T. being property in her trust, is nonsense. Children are not property and children cannot be placed in a trust to avoid family matters being determined by the Court.

She also cannot avoid court proceedings by alleging to be someone other than A.A.L. [ 6 ] After much redirection by me, the mother was able to focus her argument on the substantive issues before the Court. [ 7 ] The variation motion proceeded on the affidavits filed by the parties and their respective oral arguments. The mother was able to rely upon one of her affidavits that reasonably responded to the initial affidavit filed by the father. The mother’s argument contained

numerous statements that were not in evidence before me and accordingly, I have not given any consideration to the arguments based on information not properly before the Court. [ 8 ] I have chosen to initialize the parties’ names and have removed all personal data in this decision to protect the parties’ and child’s privacy. I have done this because the decision contains some sensitive subject matters and information. I wish to confirm, however, that the initials used in this decision reference the petitioner and respondent in this matter.

The mother cannot subsequently argue that this decision does not apply to her because I have not used her full name or such other variation of her name as she desires. Issues [ 9 ] The issues to be determined are: (

a) Has there been a change of circumstances that warrants a variation of the parties’ current parenting arrangement and if so what parenting arrangement is in T.’s best interests? (

b) Should the father be granted exclusive decision-making responsibility for T.? (

c) What child support is payable? and (

d) What costs are payable and to whom? Background [ 10 ] T. was born from a brief relationship between the parties. They never cohabited. Both parties have since re-partnered. The mother has a six-year-old son from a relationship she had subsequent to the one with the father. She has recently married and is expecting a child with her current husband. The father has an infant son with his current wife. [ 11 ] A consent Final Order was pronounced by Doyle J. on April 8, 2015. This Order provided the parties with joint custody of T.

It also granted the mother primary care and control and final decision-making authority. The father was granted specified periods of care and control of T. and was ordered to pay child support for her. [ 12 ] A Variation Order was pronounced by Hatch J. (as she then was) on March 23, 2018. The Variation Order, which both parties consented to, provided the father with the right to make the final decision in the event the parties were unable to reach agreement on major decisions for T.

It also provided that the parties equally share care and control of T. by utilizing a 2-5-5-2 timeshare arrangement and share various holidays throughout the year. The Variation Order also specifically included that each of the parties obtain the written consent of the other party prior to moving their residence to a location outside of Winnipeg, Manitoba. The father was ordered to pay offset child support to the mother for T.

The mother, who was on maternity leave at the time and had little income, was ordered to provide the father with her financial disclosure following her return to work. [ 13 ] In early 2021, the mother sold her home in Winnipeg and moved to a home in a rural community north of Winnipeg (“Community A”). The mother never sought nor obtained the father's consent to this move. Since 2021, T. has travelled back and forth between Winnipeg and Community A on a frequent basis in accordance with the existing Variation Order. [ 14 ] The father filed a Notice of Motion to Vary the Final Order on November 8, 2022.

The mother filed a Notice of Opposition to Variation on November 28, 2022. [ 15 ] On November 14, 2022, the mother also filed a Notice of Motion to quash the variation proceedings. This motion to quash was heard and dismissed by Master Lee (as he then was) on November 28, 2022.

Request for Adjournment [ 16 ] Prior to determining the issues before me, I must address the mother’s request for an adjournment. [ 17 ] Although a request for adjournment is not unusual, this request was unique in that the mother had, just two days prior to the variation hearing, filed a Statement of Claim against myself, as the Judge in this matter, and the father’s counsel (“Ms. Walder”).

Her Statement of Claim sought to have a judge in the General Division of this Court stay the proceedings in the Family Division. [ 18 ] At the commencement of the hearing before me, the mother, matter-of-factly, stated that we could not proceed because the matter was to be stayed as a result of her filing the Statement of Claim against myself and Ms. Walder.

When I advised that the matter had not been stayed and that her Statement of Claim would be heard by another judge at a future date, she requested an adjournment instead. [ 19 ] In support of her request, the mother argued that she needed more time to prepare for the hearing and that she did not understand what was to happen at the variation hearing. The mother also suggested that she was attending under duress and coercion, and there was collusion between Ms. Walder and me.

She provided no explanation or specifics to support her allegations. [ 20 ] The father opposed the adjournment sought by the mother. [ 21 ] Following submissions by both parties, I denied the mother’s request for an adjournment for the following reasons.

[22] Although the mother did not expressly ask me to recuse myself, I took it upon myself to consider whether I ought to recusemyself in light of the mother’s accusations and the Statement of Claim filed against me. [23] The governing legal principles and applicable test to be applied in determining a judge’s recusal was summarized by Joyal J. (ashe then was) in Kalo v.

Manitoba (Human Rights Commission), 2008 MBQB 92 , as follows: [17] The determination concerning a judge’s recusal is governed by well established legal principles which were recently restated bythe Supreme Court of Canada in Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259: 60 In Canadian law, one standard has now emerged as the criterion for disqualification. The criterion, as expressed by de Grandpré J.in Committee for Justice and Liberty v.

National Energy Board, supra, at p. 394, is the reasonable apprehension of bias: … the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the questionand obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person,viewing the matter realistically and practically – and having thought the matter through – conclude.

Would he think that it is more likelythan not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.” [18] The test had been previously reaffirmed in R. v. S. (R.D.), (SCC), [1997] 3. S.C.R. 484, [1997] S.C.J. No. 84(QL). In that case, the Supreme Court of Canada confirmed at para. 112 that Canadian law also requires that a real likelihood orprobability of bias must be demonstrated and that a “mere suspicion” is not enough. Additionally, the reasonable person, about whomreference is made in the governing test, must be “informed”.

That is, a reasonable person must be informed not only of the relevantcircumstances of the particular case, but also of the tradition of integrity and impartiality that are the backdrop for our judicial systemand which are reflected in and reinforced by the judicial oath. In R. v. S. (R.D.), supra, Cory J. stated: 116 Often the most significant occasion in the career of a judge is the swearing of the oath of office. It is a moment of pride and joycoupled with a realization of the onerous responsibility that goes with the office.

The taking of the oath is solemn and a defining momentetched forever in the memory of the judge. The oath requires a judge to render justice impartially. To take that oath is the fulfilment ofa life’s dreams. It is never taken lightly. Throughout their careers, Canadian judges strive to overcome the personal biases that arecommon to all humanity in order to provide and clearly appear to provide a fair trial for all who come before them.

Their rate of successin this difficult endeavour is high. … [20] As there is a strong presumption in favour of judicial impartiality, the alleged grounds advanced to support recusal must be seriousand convincing.

In Wewaykum Indian Band, the Supreme Court of Canada stated: 59 … [W]hile the requirement of judicial impartiality is a stringent one, the burden is on the party arguing for disqualification toestablish that the circumstances justify a finding that the judge must be disqualified. [21] As the court noted in that case, there are no “textbook” cases of bias and in each case, the inquiry is highly fact-specific: 77 … Whether the facts, as established, point to financial or personal interest of the decision-maker; present or past link with a party,counsel or judge; earlier participation or knowledge of the litigation; or expression of views and activities, they must be addressedcarefully in light of the entire context.

There are no shortcuts. [Emphasis in original] [24] As set out in Wewaykum Indian Band v. Canada, 2003 SCC 45 , no shortcuts should be made. Determination of arecusal motion requires the full consideration of all of the facts of the case as well as the allegations made. [25] The mother’s allegations that she was attending the hearing under duress and coercion, and that there was some collusionbetween Ms. Walder and me were certainly serious.

However, she provided no specific facts or basis for making such allegations. [26] When asked, the mother confirmed that she had chosen to attend the hearing because she knew if she did not attend, an Ordercould be made in her absence. As this is the case for every litigant, it cannot be viewed as duress or coercion. [27] Further, the mother provided no evidence whatsoever to support that there was any collusion or, for that matter, anythinguntoward between myself and Ms. Walder. There was no evidence because there was no collusion. As stated in R. v.

S. (R.D.), (SCC), a mere suspicion is not sufficient to support a recusal. [28] Finally, the fact that the mother filed a lawsuit against me does not, in and of itself, require me to recuse myself. This is not

dissimilar to situations where a litigant has made a complaint against a Judge. The case law is clear and stringent that this is not a basisfor recusing oneself from hearing a matter (Kamer v. Ptashnik, 2013 MBQB 183 ). In addition, the contents of the mother’sStatement of Claim was largely incomprehensible and unclear. [29] The mother provided no clear, convincing, or cogent evidence to meet the required threshold.

Having considered all theallegations made by the mother, as well as the totality of them, I find that an informed person, viewing the matter realistically andpractically, and having thought the matter through, would conclude that there was no reasonable apprehension of bias. Accordingly, Ideclined to recuse myself from determining this motion. [30] As previously noted, the mother also argued that she required more time to prepare and that she did not understand what was tohappen at the contested hearing.

I will address each of these arguments. [31] First, the mother’s argument that she required more time to prepare for the contested motion is not supported by the evidence. The initial Notice of Motion to Vary in this matter was filed in November 2022. At the date of the hearing, the mother had had tenmonths to prepare for this motion. She had filed seven affidavits in support of her opposition to the relief sought despite the King’sBench Rules limiting her to one responding affidavit.

The mother, herself, had consented to the scheduling of this contested hearing dateand it was expedited at both parties’ request that the contested hearing proceed as soon as possible. As a result of the foregoing, I did notaccept that the mother required more time to prepare for the hearing. [32] There was also some urgency in having this matter heard. The mother had been threatening, on a frequent basis, to unilaterallychange the parties’ parenting time and to have T. begin attending a school near Community A, contrary to the Variation Order.

Thiscreated turmoil and instability for everyone and in particular, T. In light of this, at the conclusion of the variation hearing, I ordered thatneither party change T.’s school pending receipt of my decision in this matter. [33] I also did not accept the mother’s argument that she did not understand what was to happen at the contested hearing. At theprevious case conference, I personally outlined for the mother what would transpire at the contested hearing so that she would have aclear understanding of what to expect.

I specifically explained the additional documents to be filed and the timelines for providingthese. Despite being given the opportunity to file a Motion Brief, the mother chose not to do so. [34] For all of the foregoing reasons, I denied the mother’s request for an adjournment. Parenting Time [35] In determining whether a variation is warranted, I must confirm whether the child’s circumstances have changed since the lastOrder was made s. 39(2) of The Family Law Act, C.C.S.M. c. F20, (“FLA”)).

For the following reasons, I am satisfied that there hasbeen a material change in circumstances for T. since the Variation Order was pronounced in 2018. [36] At that time, both parties lived in Winnipeg near T.’s school. The mother’s unilateral move to Community A is roughly a one-and-one-half hour drive by car from the school that T. currently attends (the “current school”). The current 2-5-5-2 timesharearrangement requires T. to commute between Winnipeg and Community A regularly.

This was not contemplated when the VariationOrder was pronounced. [37] During the Covid-19 pandemic, T. was able to attend school remotely. This initially ameliorated the father’s concern with thefrequent lengthy drives to and from Community A. Following T.’s return to the classroom, the mother has stayed at a variety oflocations while in Winnipeg to reduce the daily commute required to enable T. to attend school during her parenting time.

Although themother suggested in argument that she has a home in Winnipeg, she provided no evidence to confirm this. [38] This is the underlying basis for the variation application. The father seeks to have parenting time with T. from Monday to Fridayeach week to accommodate her continued attendance at the current school.

The mother’s response to the father’s motion is to seek tohave parenting time with T. from Monday to Friday each week to accommodate her attending a school near the mother’s new residence(the “alternate school”). [39] Accordingly, I find that the mother’s move to Community A and the parties’ competing desire to have T. attend school close totheir residence constitute a material change in circumstances that warrants a variation of the parties’ current parenting time. [40] In order to determine a variation of parenting time, I must ascertain what is in T.’s best interests (s. 35(1) of FLA).

To do this, Ihave considered the factors set out in sections 35(2), (3) and (4) of FLA. [41] T. appears to have a close relationship with both of her parents. I have no doubt that she loves them both. She has a youngerhalf-sibling in each home. Although the mother had primary care and control of T. initially, the parties have, by consent, sharedparenting time with T. equally for approximately six years. [42] I find that the mother did not consider T.’s needs or the impact on T. when she unilaterally chose to move one-and-one-half hoursaway from T.’s school and prior home base.

This was done without any consultation with, or notice to, the father contrary to theVariation Order. This decision has resulted in the requirement for a significant amount of travelling to and from Winnipeg or staying in avariety of homes each week from Wednesday until Friday while in her mother’s care (presumably to avoid the daily commute). Thefather stated that T. is consistently uncertain as to where she will be staying from day to day while in the mother’s care on school nights. He argued that this creates uncertainty and instability for T.

I agree. [43] T. has also been absent or late for school frequently while in the mother’s care since moving to Community A. This happenedmost frequently during the 2021/2022 school year. T.’s report card for the 2022/2023 school year indicates an improvement in herattendance and late arrivals. It is interesting that this improvement coincided with the mother being served with the father’s Notice of

Motion to Vary. Absences and late arrivals at school create further instability for T., is not in her best interests and may have a detrimental impact on her education. [ 44 ] T. has lived in Winnipeg all of her life other than the time she has now spent in Community A with the mother. She previously attended an elementary school in Winnipeg (“elementary school”) and is now attending the current school. The evidence before me states that all of her best friends from the elementary school are attending the current school. Friends are important and an integral component of a young teenager’s life.

T. is involved in extracurricular activities at the current school and is excited to be doing these activities with her friends. T.’s teacher relayed to the father that she is doing very well at the current school. I find that having T. continue to attend the current school will provide the most stability for her. [ 45 ] Neither party sought to obtain a Brief Consultation or Voice of the Child Report. The mother attached to one of her affidavits a letter that she alleged was written by T.

I am giving no weight to this letter as I do not know the circumstances in which it was written or if it was, in fact, written by T. [ 46 ] I also have significant concerns about what T. has been told about the legal proceedings by her mother. The mother admitted to having T. on the telephone with her during the court proceedings before Master Lee (as he then was). T. is 13 years old and should not be participating in or enmeshed in these legal proceedings, or other adult matters.

This clearly is not in T.’s best interests. [ 47 ] The mother alleged that the father has been emotionally abusive to T. and that his wife has attempted to alienate T. from her. This has not been borne out by the evidence. The assessment done by Family Conciliation (as it then was) in 2017 describes a warm and loving relationship between the father, his wife, and T. Although I appreciate that this report is now dated, the assessor found no indication of abuse or acts of alienation by either the father or his wife despite similar allegations being made by the mother at that time.

Further, notwithstanding the mother’s allegations of abuse against the father in 2017, the mother consented to the father having shared care and control of T. in the Variation Order. The mother’s consent to that Order directly contradicts her allegations of abuse by the father. [ 48 ] In addition, T. commenced seeing a counsellor in June 2023 and prior to that, had been seeing the school guidance counsellor. Had T. disclosed any indication of abuse to either of these counsellors, they would have a statutory obligation to report it.

I have not been advised that any such report has been made by either of T.’s counsellors, or any other third party to date. [ 49 ] It is important for T. to maintain her relationship with both parents. Unfortunately, the mother’s move has resulted in unnecessary stress being placed on T. in having to continue the current shared timeshare arrangement that the parties have been utilizing. [ 50 ] Having considered all of the factors set out in the FLA , I find that it is in T.’s best interests for the father to have parenting time on school days each week during the school year.

The mother shall have parenting time on alternate weekends from Friday after school until Sunday evening at 8:00 p.m. and in the event of a long weekend or school in-service, the weekend shall be extended to include the holiday or in-service day (with the pick-up Thursday after school when Friday is a holiday or in-service day and the drop off on Monday at 8:00 p.m. when Monday is a holiday or in-service day). The mother shall also have parenting time with T. every Wednesday evening from after school until 8:00 p.m. The mother’s first weekend shall commence Friday, February 16, 2024.

The father shall have parenting time with T. at all other times during the school year. The mother shall be responsible for all the transportation of T. to and from Community A. [ 51 ] No change was sought to the parties’ holiday time set out in the Variation Order. Accordingly, this provision shall continue unchanged with one exception. Subparagraph 3.1.5(

g) dealing with long weekends, shall be deleted from this Order. The mother’s alternate weekends shall include statutory holidays and in-service days as set out above. [ 52 ] In addition, subparagraph 3.1.6.1 of the Variation Order shall be varied to reflect that all exchanges of T. that do not occur at the current school shall occur at the father’s home, with the mother remaining curbside or at the back parking pad when picking up or dropping off T.

Decision-Making Responsibility [ 53 ] The father seeks exclusive decision-making responsibility and authority to make all significant decisions for T. without consulting the mother.

He seeks this because, despite being previously granted the right to make the final decision in the event of disagreement on major decisions, he has been unable to implement his decisions because the mother has refused to either consent to, or comply with the chosen treatment plan. [ 54 ] The mother argues that she should be the parent to have exclusive decision-making responsibility for T. [ 55 ] For the reasons that follow, the father is granted exclusive decision-making responsibility and authority to make all significant decisions for T. without consulting with the mother. [ 56 ] The mother has repeatedly displayed a complete disregard for the Variation Order.

Despite the father being granted final decision-making authority in the event of disagreement between the parties, the mother has unilaterally precluded T. from receiving medical treatment which was contrary to the father’s final decision and, in my view, T.’s best interests. On a number of occasions, the mother’s actions or refusal to consent to medical treatment have prevented medical professionals from proceeding with the course of treatment chosen by the father. Examples of this are: (

a) The mother refused to consent to T. receiving the Covid-19 vaccination despite the father’s desire for her to be vaccinated. Furthermore, the mother told T. numerous false statements about the Covid-19 vaccination to incite fear in her which included that the vaccine caused sterility and that it could kill T. and her father;

(

b) The father sought to have T. attend counselling to assist her in coping with the emotions and stress associated with being caught in the middle of the parties’ high conflict relationship. This was prompted by T.’s school guidance counsellor who raised concerns about T.’s mental well-being with her father. Despite the mother indicating that she was in agreement with T. attending counselling, she refused to sign the necessary consent forms which were required by the counsellor to proceed with the counselling.

By refusing to sign the necessary consent forms, the mother unilaterally precluded T. from obtaining the counselling that she desperately needed. Further, despite the mother subsequently signing the necessary consent forms at triage, the mother has failed to take T. to her counselling except for two occasions; (

c) The initial orthodontist also declined to proceed with the recommended treatment plan for T. because the mother sent emails to the orthodontist’s assistant indicating that the Variation Order was “null and void”; and (

d) Following a telephone conversation with the mother in early 2023, the pediatrician chosen by the father withdrew from providing further medical care to T. This has left T. without a pediatrician to see on a regular basis for the last year and has created further instability for T. [ 57 ] As previously noted, the mother has also created turmoil and instability by repeatedly threatening to have T. commence attending school at the alternate school. The mother even attempted to enroll T. in the alternate school for the 2022/23 school year without consulting the father.

This was a clear violation of the Variation Order which required joint consultation on all major decisions for T. [ 58 ] The mother’s actions clearly demonstrate that she has, on a number of occasions, disregarded what is in T.’s best interests. The most obvious example of this was the mother’s refusal to sign the necessary consent forms for T. to obtain counselling despite agreeing that she desperately needed counselling. [ 59 ] The father, on the other hand, has been open to considering the mother’s views, when reasonable.

A prime example of this was the father’s agreement in the summer of 2022 to allow the mother to obtain a second opinion on the orthodontic treatment being proposed. Despite this agreement, the mother did not arrange for a second opinion as agreed. It was not until triage in May 2023 that the mother recommitted to obtaining a second opinion.

Upon the father hearing the proposed treatment plan from the second orthodontist, the father agreed to proceed with the orthodontist chosen by the mother. [ 60 ] Based on the evidence before me, I am satisfied that the father, if given the exclusive right to make decisions for T., will fully consider all of the options available before determining the decisions to be made for her. I am also confident that the father will be diligent in determining and proceeding with what is in T.’s best interests when making these decisions.

Accordingly, I order that the father have exclusive decision-making responsibility and authority to make all significant decisions for T. related to medical matters, counselling, dental and orthodontic treatment, education, and extracurricular activities without having to consult with the mother. To be clear, I dispense with the need to have the mother consent to significant decisions for T. which shall include all decisions related to all medical matters, counselling, dental and orthodontic treatments, education and extracurricular activities. [ 61 ] Subparagraph 3.1.3 of the Variation Order pertaining to Dr.

Grobler shall be deleted as this doctor is no longer T.’s doctor as a result of a complaint to and censure from the Manitoba College of Physicians and Surgeons. [ 62 ] The father also seeks an order that he be entitled to obtain a passport for T. and travel with her outside of Canada without the mother’s consent. He seeks this relief because in December 2021, the mother refused to cooperate in applying for a passport for T.

Her refusal to sign the passport application precluded the father from taking T. on a planned family holiday to Hawaii. [ 63 ] The mother argues that T. did not want to go to Hawaii with the father and that is why she refused to sign the application. [ 64 ] I do not accept the mother’s argument. In email correspondence attached to the mother’s affidavit affirmed November 14, 2023, the mother proposed that she would agree to the travel if the father paid for the mother to go to Hawaii as well.

She premised this on the basis that she could be there should T. need her and should they be required to stay in Hawaii longer because of Covid-19 protocols. The father assured the mother that the trip was contingent on the status of the pandemic and that they would not go if the travel advisory was still in place. The mother’s proposal demonstrates that she was not truly concerned about the travel itself but her consent was contingent on her being able to go as well.

When that did not come to fruition, she refused on the basis that T. did not want to go despite the father indicating that T. had been talking about wanting to go to Hawaii for years. [ 65 ] Having considered the evidence before me, I find that the mother’s refusal to sign the passport application unilaterally precluded the father from being able to take T. to Hawaii. T. is young and should be given every opportunity that her parents are able to provide to her.

A trip to Hawaii could have been an enriching and wonderful family experience for T. [ 66 ] The father shall be entitled to obtain and renew a passport for T., and travel with her outside of Canada without the mother’s consent. [ 67 ] The father also seeks an order that the mother be prohibited from moving more than one-and-one-half hours from Winnipeg. He seeks this to ensure that a further move does not extend the distance between the parties’ homes. I am not prepared to grant this relief as the father did not plead this in his Notice of Motion to Vary.

It is, however, important to note that should the mother choose to move her residence to another location that increases the distance between the parties’ homes, this may establish a further change in circumstances that may warrant a further variation to the parenting time. Child Support [ 68 ] The father seeks to vary child support to accord with the Manitoba Child Support Guidelines Regulation, M.R. 52/2023 (“ MB CSG ”), based on the parenting regime that is ordered. He also seeks to have the mother pay a contribution to T.’s special and extraordinary expenses which, to date, she has not made any contribution.

[69] The mother argued that as she does not work outside the home, she has no income from which to pay child support. She alsoargued that she should not have an obligation to contribute to special and extraordinary expenses unless she agreed to the expense andonly if the parties co-parent T. instead of parallel parenting. [70] The change to the parties’ parenting time creates a change of circumstance that warrants a variation of the child support. As thefather shall have the majority of parenting time with T., the mother is legally obligated to pay monthly child support to the father for T.

She also has an obligation to contribute to T.’s special and extraordinary expenses that are reasonable and necessary for T. Thisobligation is not dependent on the parties’ method of parenting as suggested by the mother. [71] In order to determine the quantum of child support to be paid, I must first determine the mother’s annual income. In the mother’sFinancial Statement affirmed March 21, 2023, she states that she has no income and has been unemployed since 2023. The timing of herunemployment is suspect.

It appears that she became unemployed shortly after she was served with the father’s Notice of Motion toVary seeking to vary child support. [72] The notices of assessment attached to the mother’s Financial Statement confirm that she has worked in recent years. Her totalincome in 2020 was $29,054.00 and in 2021 was $23,957.00. The tax return

summary, also attached to her Financial Statement,confirms that her total income in 2022 was $14,005.01. [73] The mother has an obligation to financially support T. (s. 57(1) of FLA). She cannot unilaterally choose to not work outside thehome and expect to pay nothing toward T.’s support. The mother is fully able and capable of working. No evidence has been providedto suggest that the mother is unable to work. As a result, I impute income of $31,824.00 to the mother. This is the equivalent of a full-time job earning minimum wage. I impute this income to the mother on the basis that she is intentionally under-employed orunemployed (s. 19(1)(

a) of the MB CSGC). [74] Based on this imputed income, the mother’s child support obligation for T. is $251.00 per month and shall be payable on the firstof each month, commencing February 1, 2024, and continuing until further order of the Court. These payments shall be paid through theMaintenance Enforcement Program. [75] In light of the change to the parties’ parenting time, the father’s prior obligation to pay child support to the mother for T. shallterminate as of January 31, 2024. [76] The parties should also be sharing the cost of T.’s special and extraordinary expenses proportionate to their incomes.

Thefather’s current income is determined to be $70,000.00 based on his 2022 tax return

summary and his estimated income for 2023. Basedon this and the mother’s income being imputed at $31,824.00, the mother should pay 25.47% of T.’s expenses which includeorthodontics and counselling fees not covered by insurance and extracurricular activities which, in 2023, included guitar lessons, danceand swimming lessons.

I find these extracurricular activities and expenses to be reasonable and necessary for T. [77] The father proposes that the mother be ordered to pay a monthly amount toward these expenses to ensure they are enforceablethrough Maintenance Enforcement. [78] As the mother has refused to contribute to any of T.’s special and extraordinary expenses to date, this makes sense. Accordingly, I order that the mother pay the father $50.00 per month toward the orthodontic expense (not covered by insurance), payable on the 1st day of each month, commencing February 1, 2024, and continuing for 24 months.

I also order that the mother pay $20.00 per monthtoward T.’s counselling costs (not covered by insurance) and $20.00 per month toward her extracurricular activities, with both of these payments payable on the 1st day of each month, commencing February 1, 2024, and continuing until further order of the Court. [79] The father shall be required to provide the mother with a copy of all receipts for T.’s orthodontics, counselling and extracurricularexpenses to keep her apprised of the expenses being incurred. [80] There shall be an order for yearly financial disclosure.

The parties shall exchange their income information annually, commencing in 2024. This shall include providing a copy of their income tax return by June 1st each year and a copy of all notices ofassessment and reassessment received from Canada Revenue Agency within ten days of receipt. Costs [81] The father seeks costs against the mother and chose to argue this at the hearing. He argues that he should be entitled to elevatedcosts because the mother has taken steps in these proceedings to complicate or delay the matter.

The father seeks four times the tariffcosts in this matter plus disbursements, which he calculates to be $34,536.92 (tariff of $8,375.00 X 4 + disbursements of $1,036.92). [82] The mother’s argument regarding costs was inconsistent. Initially she argued that “the costs for court are being taken from [her]securities account so there is no issue for court costs.” There was no further explanation as to how the costs would get paid. This makesno sense. She subsequently argued that she has no money to personally pay the costs sought by the father as she does not work outsidethe home.

She then proposed that if any costs are to be awarded, the trustee can be found to pay the costs. When I asked who the trusteeis, she suggested that it would be inappropriate to say on the record. When I insisted that she answer my question, she suggested that I, asthe Judge administering the trust, am the trustee and thereby would be responsible to pay the costs. I assured her that I am not the trusteeof her trust. I have no obligation to pay her court costs.

The mother’s argument in this regard is nonsensical and directly contradicts herearlier argument that the Court has no authority to administer the trust. [83] Costs are discretionary and generally follow success (Gabb v. Gabb, 2001 MBCA 19 ). There is no question that thefather has been successful in this motion and is entitled to costs. In ascertaining what costs are payable, I have considered the factors setout in King’s Bench Rule 57.01(1).

[84] There is no question that the mother’s actions have delayed and complicated this matter, and have required additional steps to betaken in the proceedings. The father was required to obtain an order of substitutional service as the mother evaded service of the triagedocuments. In making this order, Master Berthaudin (as he then was) ordered that costs be in the cause. [85] The mother filed multiple, unwarranted and for the most part, incomprehensible affidavits in this matter, without leave of theCourt.

These affidavits were unnecessary but would have required the father’s counsel to review them at the father’s cost. [86] The mother also filed three additional proceedings that had no merit. She initially filed a motion to quash the variation hearing,which was dismissed with costs of $2,500.00 ordered against her. She then filed a Statement of Claim in the General Division againstMs. Walder, which was subsequently discontinued. She filed a further Statement of Claim against Ms. Walder and myself on September19, 2023, just two days before the variation hearing was to be heard.

This further Statement of Claim was subsequently struck in itsentirety with costs ordered against the mother. [87] The mother also failed to follow through with agreements reached by the parties at triage. She initially did not proceed with thecounselling or orthodontic consultations as agreed at triage. She eventually proceeded with commencing the counselling for T. but onlyafter much delay. She has subsequently failed to comply with her own agreement and has not continued to take T. to counsellingsessions during her parenting time.

The orthodontic work has also been delayed despite her agreement given to this Court at the caseconference. [88] The mother also completely disregarded the Court’s directions to file an Updated Triage Brief for the case conference and aMotion Brief for the variation hearing. [89] The mother was uncooperative, confrontational, and repeatedly disrespectful to the Court. All of the court appearances wentmuch longer than necessary as the mother repeatedly argued that she was not the person listed in the court documents and that this Courtdid not have any authority to determine the matter.

Her actions delayed the proceedings and have undoubtedly increased costs for thefather. [90] In determining the cost award to be made, I have not included costs to the father for the Statements of Claim filed in the GeneralDivision.

Neither of these Statements of Claim were against the father and any costs relating to those proceedings would have beendetermined by the Judge or Associate Judge (previously Master) who dealt with its disposition. [91] Although I acknowledge that the mother argued that she has no income at present, her choice to become unemployed in 2023cannot protect her from paying costs if warranted. As set out in Sang v. Suteu, 2016 ONCJ 160 , (at para. 29(f)): … A party’s ability to pay costs is a relevant consideration.

However, a party’s limited financial circumstances should not be used as ashield against any liability for costs especially when that party has acted unreasonably. Parties of limited means do not engage inlitigation without risk. [92] This entire variation motion was instigated by the mother’s unilateral decision to move one-and-one-half hours from T.’s schoolwithout notifying the father and despite the parties having equal parenting time with T.

This unilateral decision by the mother was also adirect contravention of the provision in the Variation Order that neither party move their residence to a location outside of Winnipegwithout the written consent of the other party. [93] Accordingly, having regard to all of these factors, I am satisfied that elevated costs are appropriate in this matter but not to theextent sought by the father. I order that the mother pay costs of $15,000.00 to the father, inclusive of disbursements and taxes, payableforthwith.

Conclusion [94] The father’s counsel shall prepare a Variation Order that reflects the terms set out in this decision. I dispense with the mother’sapproval as to the form of the Order. Upon submission of the Order, I will carefully review it to ensure that it adequately reflects thedecision made. [95] The father’s counsel shall also include in the Order a provision that a copy of the signed Variation Order shall be served on themother, both by ordinary mail and by email, within ten days of signing. J.