COURT OF APPEAL FOR ONTARIO
Hoy A.C.J.O., Brown and Huscroft JJ.A.
BETWEEN
Larissa Louise Easson
Applicant (Respondent in Appeal)
and
Friedrich Rudolf Blase
Respondent (Appellant in Appeal)
Stephen Grant and Jenna Preston, for the appellant
Larissa Easson, appearing in person
Heard: July 21, 2016
On appeal from the order of Justice McWatt of the Superior Court of Justice, dated September 18, 2015.
ENDORSEMENT
Overview
1This appeal arises out of a high-conflict dispute between parents regarding the residential schedule and parenting of their two children, now 12 and 7 years old.
2The parties separated on May 15, 2009. On May 14, 2012, on the eve of trial, the parents agreed on a comprehensive, final order (the “Order”) regarding the residential schedule and parenting of their children. Less than two years later, the father sought to vary the Order, among other things to provide that the children would reside with each parent on an alternate weeks basis and to remove the mother’s decision-making authority.
3Pursuant to s. 17(5) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), the court cannot vary a custody order on the application of the parties in the absence of “a change in the condition, means, needs or other circumstances of the child” since the making of the order. There must be a material change in the circumstances of the child since the last custody order was made. A material change is one that “altered the child’s needs or the ability of the parents to meet those needs in a fundamental way”: see Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, at para. 12. Absent the finding of changed circumstances, the court’s inquiry can proceed no further: see Litman v. Sherman, 2008 ONCA 485, 52 R.F.L. (6th) 239.
4The trial judge heard the father’s motion over 12 days in 2015. She concluded that there had not been a material change in circumstances since the making of the Order and that she was therefore without jurisdiction to vary it. She found that the father “holds unbridled hostility towards” the mother and that the children have flourished in the mother’s stable and continuous care. She wrote, at para. 89:
I cannot and will not imagine what material change would justify changing the [Order]. The best interests of the children are already being served. The parallel parenting regime suggested by the father would serve only to undermine the children’s stability in the context of their parent’s unstable relationship.
5The trial judge awarded costs in favour of the mother.
6The father appeals the trial judge’s order dismissing his motion to vary the Order. He argues that the trial judge erred in finding that there had not been a material change in circumstances and that a week-about time sharing arrangement is not in the children’s best interests. He does not appeal the trial judge’s conclusion that the change regarding decision making sought by the father was not in the children’s best interests.
7The mother seeks leave to adduce fresh evidence that the father has willfully not complied with the terms of the Order since the trial judge dismissed his motion, and argues that this court should dismiss his appeal on the basis of that non-compliance. In response, the father has filed an affidavit denying that he has not complied with the terms of the Order.
8For the reasons that follow, we deny leave to admit the fresh evidence and dismiss the father’s appeal of the trial judge’s dismissal of his motion to vary the Order.
9The trial judge awarded costs in favour of the mother. The father and mother had also sought leave to appeal and cross-appeal the trial judge’s costs order. However, at the hearing, the father and mother abandoned their appeal and cross-appeal of the costs order.
Fresh Evidence
10While the mother’s proposed fresh evidence is seemingly credible, it is untested and the father denies non-compliance. His affidavit consists of a short, blanket denial of his non-compliance with the Order, but he only received the mother’s materials a few days before the hearing of the appeal, on return from a vacation with the children. It is not the role of this court to make credibility findings. In the circumstances, the mother’s proposed fresh evidence, disputed as it is by the father, could not ground the dismissal of his appeal. Therefore, we decline to admit it and proceed to deal with the father’s appeal on the merits.
No Material Change in Circumstances
11The father advances two arguments. First, he renews the argument rejected by the trial judge that the mother implicitly acknowledged that there had been a material change in circumstances when, in the course of the trial, she agreed to vary the Order by extending his alternating week access by one day. Second, he argues that the trial judge failed to consider the changed circumstances of his employment. He submits that as a result of a change in his workplace arrangements since the Order was made, he travels less and is now available to assume a greater parenting role.
12We reject these arguments.
13The father’s first argument is rooted in what the trial judge describes at para. 8 of her reasons:
[The mother] asked for a dismissal of the motion until I inquired, partly into the evidence of the father, whether there was any way the parties might agree on a variation of the Order. She changed her position to give the father more time than the present Thursday after school to Sundays at 6:00 p.m. every other weekend. She proposed:
An Order that the children’s residential arrangements shall be altered such that their alternating week access with father commences Wednesday a.m. and ends on Monday a.m. when [the father] shall take the children to school…
14The father submits that, once a parent makes a concession, the other parent may be relieved of demonstrating a material change in circumstances. However, he concedes that this would not be the result of just any concession. According to him, the more that is conceded, the more likely that the concession will constitute an acknowledgement of a material change. And, he says, the one-day increase in his access during the school year was a sufficiently significant concession on the part of the mother to constitute an acknowledgment that there had been a material change in circumstances. As a result of that one-day increase, the children are in the residential care of the father five days out of fourteen during the school year and approximately one-half of the time during holidays.
15The mother made a concession, essentially consenting to part of what the father sought. A final order can be varied on the consent of the parties, in the absence of a material change in circumstances.
16Furthermore, in this case the Order contemplated that the parties would mediate extensions of access time for the father, short of a new parenting regime. In the past, the parties have agreed through mediation to extend the father’s access time. The change agreed to by the mother during the course of the trial was a change of the type contemplated by the Order. We do not agree that the mother’s concession was an acknowledgment of a material change in circumstances.
17Moreover, the father’s broad position that a concession of this kind is an acknowledgment of a material change in circumstances risks creating a disincentive to parents to agree to make concessions and therefore risks increasing litigation.
18As to the father’s second argument, the trial judge considered the father’s work arrangements. She determined that there was no evidence that the father’s ability to meet the needs of the children had materially changed since the date of the Order as a result of his changing his employment. She found that the father controlled his own travel schedule at the time of the Order and that the two jobs, before and now, are very similar. That finding was clearly open to her on the record and there is no basis to interfere with it.
Best Interests of the Children
19Our conclusion that there is no basis to interfere with the trial judge’s finding that there was no material change in circumstances since the Order was made is dispositive of this appeal. It is unnecessary for us to address the father’s argument that the trial judge erred in finding that the existing parenting arrangement serves the best interests of the children.
Disposition
20We deny leave to admit the fresh evidence and dismiss the appeal. We urge the parties to resolve the issue of costs of the appeal. If they are unable to do so, they may provide brief submissions to the court within 30 days.
“Alexandra Hoy A.C.J.O.”
“David Brown J.A.”
“Grant Huscroft J.A.”
