Court of Appeal for Ontario
Date: 2025-06-24
Docket: COA-24-CV-0973
Coram: Peter Lauwers, Julie George, Jonathon Dawe JJ.A.
Between:
Anita Kim
Applicant (Respondent)
and
Adan McIntosh
Respondent (Appellant)
Adan McIntosh, acting in person
Anita Kim, acting in person
Christine Doucet and Mary Reilly, for the respondent Office of the Children’s Lawyer
Heard: June 13, 2025
On appeal from the order of Justice Tracy Engelking of the Superior Court of Justice, dated July 12, 2024.
Reasons for Decision
Introduction
1Mr. McIntosh appeals from a dismissal of his motion to change parenting time and decision-making. The Office of the Children’s Lawyer (the “OCL”) supports his appeal. We dismissed the appeal on the merits at the hearing, without calling on the respondent, and with reasons to follow. These are those reasons.
Background
2The parties are parents to four children, aged between 7 and 16 at the date the appeal was argued. Their father, Mr. McIntosh, resides in Australia, and the children reside in Ontario with their mother, Ms. Kim. On October 1, 2021, Steele J. made a final order granting Ms. Kim sole decision-making authority and allowing Mr. McIntosh up to eight weeks of parenting time. She also ordered that he shall not remove the children from Ontario. This is the order Mr. McIntosh sought to vary.
3The motion judge found that there had been no material change and dismissed the motion to vary: Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 29(1).
4A clinical investigator from the OCL produced a report on the children’s preferences. None of the children want to move to Australia. Three of them want to spend more time than Steele J.’s order allows with their father, and if their father moves to Canada, would like equal time with each parent. They are interested in visiting Australia during the summer and in having video and phone calls with their father. The youngest child would like to visit her father in Australia if her mother goes with her. The OCL filed another report as fresh evidence on appeal updating the first one.
Findings of the Motion Judge
5The motion judge found that “the children now expressing an interest to visit Australia” is not a material change, because Steele J.’s order was grounded in a wrongful removal risk by Mr. McIntosh. She found that the children’s views and preferences are only one factor when determining the best interests of a child. Most importantly, the motion judge stated that, even if a material change did exist, she would not vary the order because she had “little confidence” that Mr. McIntosh would return the children from Australia, which would not be in the best interests of the children. She found that his intentions were “insincere”: he could have visited the children while in Canada if he deposited his passport with Ms. Kim’s lawyer or the court, but he refused to do so and did not see the children. This finding is well rooted in the evidence.
6The motion judge found that the children’s desire to be in a shared parenting arrangement if Mr. McIntosh moves to Canada could not constitute a material change warranting an anticipatory order for shared parenting. Mr. McIntosh has no home, healthcare, or the ability to work in Canada, and did not present any concrete plan to move to Canada. The motion judge, however, agreed with the OCL that if Mr. McIntosh permanently establishes himself in Canada, it will constitute a material change. Of course, this is an issue to be resolved in the circumstances of any such subsequent development by the judge then hearing the matter.
7The motion judge rejected the appellant’s argument that Ms. Kim has not acted in the children’s best interests, which accordingly could not constitute a material change. The motion judge found that Ms. Kim challenged her employer’s COVID-19 vaccine and mask requirements, which made her unable to work as a paramedic. Her family’s financial situation was precarious. The motion judge found that “[w]hile Ms. Kim may have contributed to her own difficult financial situation at present by jeopardizing her work as a paramedic, it is Mr. McIntosh who has consistently failed to act in the best interests of his children” by failing to pay child support and legal costs, as well as relentlessly and frivolously litigating this family law dispute and taking away from Ms. Kim’s ability to care for the children. Again, this finding is well rooted in the evidence.
8The motion judge also rejected the third proposed basis for establishing a material change, which was that the children were not attending school. The children were being home schooled, and the motion judge pointed to their positive academic performance as evidence that Ms. Kim has attended to them. Further, Steele J. was aware that the children were not attending school at times at the time of her decision. This finding is also rooted in the evidence.
Issues on Appeal
9The live issue before us is whether the motion judge erred in her determination that the expression of the children’s views must be treated as a material change warranting a variation of Steele J.’s order. The OCL and Mr. McIntosh argue that the motion judge failed to meaningfully consider the children’s views on their desired parenting time with their father, including having more parenting time with him in Canada and visiting him in Australia.
10The high threshold before the best interests of the child analysis can be conducted afresh serves to provide finality to parents and a measure of stability to children: Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 64, per L’Heureux-Dubé J. (dissenting). In N.L. v. R.R.M., 2016 ONCA 915, 88 R.F.L. (7th) 19, at para. 29, this court summarized the test from Gordon as having three components:
- a change in the condition, means, needs or circumstances of the child and/or or the ability of the parents to meet those needs;
- the change must materially affect the child; and
- the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
11On the OCL’s first argument – that the evidence of the children’s preferences introduced by the OCL in and of itself constitutes a material change in circumstances requiring the matter to be retried, and the trial judge erred in failing to so find – the motion judge considered the children’s updated views and preferences in her reasons. However, she noted, at para. 37, that Steele J. had concluded that Mr. McIntosh presented a “wrongful removal risk”, and the motion judge found that this risk had not changed.
12On the second argument, the OCL argues that the evidence supports Mr. McIntosh’s request for relief, particularly relating to the ability of the children to travel to Australia to visit Mr. McIntosh should they so choose, especially the eldest. The OCL submits:
The motion judge determined that “the factual grounds and reason in support of the existing order are clearly that Mr. McIntosh presented a wrongful removal risk. As this is the case, I do not find that the children now expressing an interest to visit Australia constitutes a material change.” The motion judge was required to determine whether the children’s now known views and preferences constituted a material change independent of any other factors, including the removal risk. By conflating the children’s views with the risk of removal, the motion judge erred.
13But the OCL fails to grapple with the motion judge’s essential point, well borne out by the evidence in the record, that Mr. McIntosh would not likely return any child who visited him in Australia. The motion judge noted, at para. 38 of her reasons:
However, even if I am wrong in this finding, and a material change does exist, I would not vary the order of Justice Steele in this regard, for the same reason that Justice Steele made the order. I have little confidence that Mr. McIntosh would return the children from Australia from a visit were one ordered, and this would most definitely not be in the best interests of the children, especially given their expressed views that they do not want to live in Australia.
Further, the record amply bears out the motion judge’s observation that Mr. McIntosh has “demonstrated that his intentions are insincere.”
14The OCL’s argument that, if Mr. McIntosh kept a child in Australia, Ms. Kim could avail herself of relief under the Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, carries no weight in a context where Ms. Kim has already endured protracted litigation at Mr. McIntosh’s hands and has very limited financial resources, due largely to his failure to pay her what she is owed.
Additional Arguments
15Mr. McIntosh also argues that the motion judge’s decision is a nullity because she proceeded on the basis of his original notice of motion without giving him prior notice that she would be rejecting his amended notice of motion. He characterizes this as a breach of natural justice. We do not agree. The differences between Mr. McIntosh’s original and amended notices of motion were relatively minor. They had no direct bearing on the issues the motion judge was called on to decide and the result would not have been different if she had accepted the amended notice of motion. There was no breach of natural justice.
16Finally, we observe that Mr. McIntosh’s obdurate refusal to get gainful employment despite his education and obvious talents has impoverished his family, and his relentless litigation has worn Ms. Kim out financially and emotionally. He has unaccountably been permitted to litigate despite his refusal to pay any outstanding costs awards and to pay outstanding support orders. As this court stated in the initial appeal from Steele J.’s order, “the proceedings have been marred by the appellant’s repeated non-compliance with numerous court orders and a seemingly interminable stream of motions and appeals brought by the appellant at various court levels”: Kim v. McIntosh, 2023 ONCA 356, at para. 4.
17The lengthy record shows that Mr. McIntosh is ungovernable. Had we not dismissed the appeal on its merits, we would have quashed it because of Mr. McIntosh’s utter failure to pay costs or support, on the principles set out in A.(A.) v. G.(Z.), 2016 ONCA 660; see also Dickie v. Dickie, 2007 SCC 8, [2007] 1 S.C.R. 346. Mr. McIntosh is familiar with the consequences of not paying cost orders: Kim, at paras. 22-25.
Disposition
18The appeal is dismissed.
“P. Lauwers J.A.”
“J. George J.A.”
“J. Dawe J.A.”