COURT OF APPEAL FOR ONTARIO
Feldman, Cronk and Hourigan JJ.A.
BETWEEN
Moya Dianne Brown
Applicant
(Respondent in Appeal)
and
David Lloyd
Respondent
(Appellant in Appeal)
Karon C. Bales and Richard Diamond, for the appellant
Jaret N. Moldaver, for the respondent
Heard: January 21, 2015
On appeal from the order of Justice Suzanne M. Stevenson of the Superior Court of Justice, dated January 14, 2014.
ENDORSEMENT
1The appellant, David Lloyd, and the respondent, Moya Dianne Brown, resided together from August 2004 to May 2007. They never married. They are the parents of one child, David Daxton Brown Lloyd (“Dax”), who was born on November 14, 2004. Dax is now 10 years of age.
2Mr. Lloyd appeals from the order of Stevenson J. of the Superior Court of Justice, dated January 14, 2014, dismissing his motion to vary the existing residency schedule for Dax based on alleged material changes in circumstances. He seeks to increase his access rights so as to implement essentially an equal residency schedule for Dax, affording each parent equal time with him.
Litigation History in Brief
3The litigation history of the access dispute between the parties, in brief, is as follows:
on May 15, 2008, following separation, Greer J. of the Superior Court of Justice fixed a temporary custody and access schedule for Dax whereby Dax had his primary residence with Ms. Brown, with specified access to Mr. Lloyd ;
in March 2009, the parties agreed on a resolution of all outstanding parenting issues. Their agreement was incorporated into Minutes of Settlement executed in the summer of 2009;
by consent order dated June 15, 2010, Perkins J. of the Superior Court set a permanent custody/ parenting regime for Dax (the “Perkins Order”). As reflected in the 2009 Minutes of Settlement between the parties, the Perkins Order continued Dax’s primary residence with Ms. Brown and granted Mr. Lloyd access on alternate weekends from Friday at 5:00 p.m. until Sunday at 7:00 p.m., on Wednesdays from 4:00 p.m. until Thursday mornings, and on alternate Mondays, from 4:00 p.m. to 7:00 p.m.;
within months of the Perkins Order, further changes were made to the residency schedule for Dax, at Mr. Lloyd’s urging. By Minutes of Settlement dated November 26, 2010, the parties agreed to extend Mr. Lloyd’s alternate weekend access rights to Dax to Monday mornings: and
following his consent to the Perkins Order and the agreed Minutes of Settlement, Mr. Lloyd continued to seek changes to Dax’s residency schedule. He sought to vary the Perkins Order, as amended by the November 2010 Minutes of Settlement, to achieve equal residency arrangements. His motion to vary led to a five-day trial before the motion judge. Her order, dated January 14, 2014, is the order at issue on appeal.
4The motion judge dismissed Mr. Lloyd’s motion to vary. She found that there had been no material change in Dax’s circumstances within the meaning of the governing authorities or the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”). The threshold requirement of a material change in circumstances not having been met, the motion judge declined to inquire further into the merits of Mr. Lloyd’s variation proposal.
Issues
5Mr. Lloyd argues that the motion judge erred in her assessment of his variation request, in several respects. In particular, he renews his argument, advanced before the motion judge, that several material changes in Dax’s circumstances have occurred since the date of the Perkins Order. He contends among other matters, that the motion judge erred: 1) by misapprehending the test for the demonstration of a material change in circumstances; 2) by failing to find a material change in circumstances; and 3) by failing to consider the “maximum contact principle” and Dax’s best interests.
Discussion
6It is unnecessary to consider these arguments in detail. We are satisfied that the motion judge recognized and properly applied the governing test for the demonstration of a material change in circumstances. She referred expressly to the test for variation enunciated by the Supreme Court in the leading case of Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, [1996] S.C.J. No. 52 and noted, correctly, that on the authority of Gordon, the merits of an application to vary a custody and access order may be considered only where the reviewing court is first satisfied that a material change in circumstances has occurred since the date of the order sought to be varied.
7In particular, the motion judge referred to the holding in Gordon that, before a variation of an existing custody/access order may be made, the party seeking the variation must establish that there has been a material change in the circumstances of the affected child that has “altered the child’s needs or the ability of the parents to meet those needs in a fundamental way… . The question is whether the previous order might have been different had the circumstances now existing prevailed earlier [citations omitted]”: Gordon at para. 12. She also noted the following comments by the Supreme Court in Gordon, at para. 13:
It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
See also Persaud v. Garcia-Persaud, 2009 ONCA 782, [2009] O.J. No. 5940, as also cited by the motion judge.
8The motion judge went on to consider each of the events or developments advanced by Mr. Lloyd as a material change of circumstances. These included: Dax’s age and advancing maturity; Ms. Brown’s remarriage; the birth of her two daughters and her relocation to a new home; and Dax’s diagnosis of a learning disability, which occasioned the need for specialized tutoring.
9For lengthy and detailed reasons, the motion judge concluded that while most of these developments constituted changes in the circumstances that prevailed at the time of the Perkins Order, none of them, alone or in combination, met the Gordon test for a material change in circumstances on the facts of this case. We see no error in this conclusion.
10Mr. Lloyd relies especially, on his submission that the motion judge erred by finding, on the authority of Gray v. Wiegers, 2008 SKCA 7, [2008] S.J. No. 12, that the passage of time and Dax’s growing maturity did not constitute a material change in circumstances because they did not adversely affect Dax or his needs.
11This is not an accurate characterization of the motion judge’s analysis. Although the motion judge referenced the Gray decision, she held, at para. 87, that Dax’s increase in age and maturity did not “automatically” constitute a material change in circumstances. She went on to observe that there was no evidence before her that Dax’s needs were not being met. In our view, this and similar statements by the motion judge merely reflect her evaluation whether Dax’s needs or circumstances, or his parents’ ability to meet his needs, had been altered in a fundamental way so as to materially affect Dax. Based on Gordon, this was a proper and necessary inquiry.
12The motion judge’s finding on the issue of a material change in circumstances, as well as her assessment of the evidence as a whole, attract deference from this court. Her conclusion that Mr. Lloyd failed to establish a material change in circumstances within the meaning of the governing authorities and the CLRA is amply supported by the evidentiary record. We see no basis for appellate intervention with this finding.
13This finding was fatal to Mr. Lloyd’s variation motion. As Gordon makes clear, the finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order. Absent such a finding, the variation inquiry can go no further.
14We conclude with these observations. On the motion judge’s findings, Dax is “a happy, well-adjusted caring child who is thriving” and “his needs are being met on an ongoing basis”. During the course of the proceeding before the motion judge, Mr. Lloyd acknowledged that Dax has adjusted well to the various changes in his life, that Ms. Brown is a very good mother and that she is devoted and attentive to Dax. In these circumstances, continued litigation by the parties concerning custody and access arrangements for Dax may be counter-productive and potentially damaging to Dax. It is to be hoped that this court’s decision will bring closure to these issues.
Disposition
15The appeal is dismissed. The respondent is entitled to her costs of the appeal, fixed in the total amount of $10,000, inclusive of disbursements and all applicable taxes.
“K. Feldman J.A.”
“E.A. Cronk J.A.”
“C.W. Hourigan J.A.”
