ONTARIO COURT OF JUSTICE
BETWEEN:
Thomas WELLS Applicant
— AND —
Melanie VOSILLA Respondent
Before Justice Susan Sullivan
Heard on January 16, 2019
Reasons for Judgment released on January 22, 2019
Counsel: M. Smith ........................................................................................... agent for the respondent Thomas Wells.............................................................................................. on his own behalf
INTRODUCTION
1This is the Court’s decision following a focused hearing which was held to determine whether the threshold requirement of demonstrating a material change in circumstances affecting the child has been met.
BACKGROUND INFORMATION
2The subject child in this proceeding is Layla Hennessey Vosilla Wells (“Layla” / “the child”) born […], 2008.
3The Applicant Father is Thomas James Wells (“Mr. Wells” / “the father”).
4The Respondent Mother is Melanie Ann Vosilla (“Ms. Vosilla” / “the mother”).
5The father has brought a motion to change the final order of Justice Starr dated June 16, 2017 (“the final order”).
6The motion was originally filed on April 18, 2018 and the first return date was May 24, 2018.
7On October 4, 2018 I ordered that there shall be a focused hearing on the initial issue as to whether there has been a material change in circumstances relating to the parents’ claims.
8The final order was made with the consent of both parties. It contains thirty-four (34) paragraphs.
9The final order states, in part:
(a) The mother shall have sole custody of the child;
(b) The child shall continue to reside primarily with the mother;
(c) The mother shall consult with the father on all important decisions about the child but she maintains the final decision making authority;
(d) The father shall have parenting time with the child:
(i) every Monday from 5:30 p.m. to 7:30 p.m. which may be extended to overnight during his non-working season, as agreed to by the parties
(ii) every Wednesday from 5:30 p.m. to Thursday at 7:30 a.m.
(iii) every other weekend from Friday at 5:30 p.m. to Sunday at 7:00 p.m.
(iv) every fourth weekend from Sunday at 9:00 a.m. to 7:00 p.m.;
(e) The parties shall have the right to communicate with the child at reasonable times by telephone, email and mail while in the care of the other party;
(f) The parties shall have the right to consult with and obtain information directly from the professionals involved with the child;
(g) The parties shall keep each other informed about any significant issues relating to the child that arise during their time with the child;
(h) The parties shall communicate regularly regarding the child by face-to-face meeting, telephone call and email/text;
(i) Neither party shall disparage the other party, or will allow anyone else to disparage the other party in the presence of the child. Neither party shall discuss this court case or other adult issues involving the parties with the child; and
(j) The parties shall remain respectful of one another at all times in the presence of the child and to only discuss issues that will likely escalate in privacy away from the child’s ability to hear.
10The final order also contains a detailed holiday access schedule that addresses the child’s birthday, her siblings’ birthdays, March Break, Easter weekend, Thanksgiving weekend, Mother’s Day, Father’s Day, Victoria Day, summer vacation, Halloween, and Christmas.
PARTIES’ POSITIONS
11The father is seeking to vary the final order such that it states, in part:
(a) The mother and the father shall have joint custody of the child; and
(b) The child shall reside equally with both parents on a week about basis.
12The father’s proposed order also includes a revision of the holiday access schedule.
13The mother’s position is that there has not been a material change of circumstances regarding the issues of custody and access and therefore the father’s motion should be dismissed. She did make a claim to vary child support, but in submissions advised that if the court finds there is no material change of circumstances regarding the father’s claims, she withdraws her claim regarding support.
EVIDENCE / LAW
14The father filed an affidavit dated December 3, 2018; it is at Tab 9, Volume 2 of the Continuing Record. He also filed a “Form 10 A: Reply” which is meant to be his reply affidavit; it is dated December 24, 2018 and is at Tab 14, Volume 3 of the Continuing Record. After Mr. Wells provided sworn evidence regarding his Form 10A, it was filed as Exhibit 1 in this proceeding.
15The mother filed an affidavit dated December 14, 2018; it is at Tab 13, Volume 3 of the Continuing Record.
16As the father is self-represented, prior to the commencement of his submissions, I asked him if he was aware of the legal principles that apply to this hearing. He said that he did as he received legal assistance prior to this court attendance.
17In any event, I read the following excerpt from Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.) to the parties:
10 Before the court can consider the merits of the application for variation, it must be satisfied there has been a material change in the circumstances of the child since the last custody order was made. Section 17(5) provides that the court shall not vary a custody or access order absent a change in the "condition, means, needs or other circumstances of the child". Accordingly, if the applicant is unable to show the existence of a material change, the inquiry can go no farther: Wilson v. Grassick (1994), 1994 CanLII 4709 (SK CA), 2 R.F.L. (4th) 291 (Sask. C.A.).
11 The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its discretion for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued: Baynes v. Baynes (1987), 1987 CanLII 2918 (BC CA), 8 R.F.L. (3d) 139 (B.C. C.A); Docherty v. Beckett (1989), 1989 CanLII 8869 (ON CA), 21 R.F.L. (3d) 92 (Ont. C.A.); Wesson v. Wesson (1973), 1973 CanLII 1951 (NS SC), 10 R.F.L. 193 (N.S. T.D.), at p. 194.
12 What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), 1991 CanLII 839 (BC SC), 35 R.F.L. (3d) 169 (B.C. S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I. S.C.). Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. "What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place": J.G. McLeod, Child Custody Law and Practice (1992), at p. 11-5.
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.
18I asked Mr. Wells if he understood what I read. He confidently said he did.
19The father attached many documents to his affidavit and Form 10. It was difficult to discern the totality of his argument from a review of what he filed. Therefore, much time was taken to allow him to explain his evidence and position. With his consent to do so, I asked questions as he proceeded to ensure that I understood the points he wanted to make. I reviewed with Mr. Wells my understanding of his arguments and he advised that I captured what it was he wanted the court to consider.
20The father argues that there has been a material change of circumstances due to the following:
(a) Layla’s school attendance issues;
(b) Layla’s mental health needs and the mother’s inability and/or unwillingness to address these needs; and
(c) The mother’s lack of follow through with the counselling recommendations for the parents and Alysia Lumbers (“the father’s partner”).
Layla’s Attendance at School
21Mr. Wells provided Layla’s school attendance records from JK (September, 2012) to Grade 5 (up to November 30, 2018).
22His position is that Layla’s attendance at school has always been a problem. He noted this in his Reply dated April 10, 2017 to the original Application.
23Mr. Wells advised that he agreed to the final order with the hopes that the child’s attendance at school would improve. He said it only did so in April, 2018 which he noted coincides with when he started his motion to change.
24The school attendance records show that in the 2017-2018 academic year, Layla missed twenty-eight (28) days of school. Fifteen (15) of these days were the result of both parents, separately, taking her out of school for holidays. Mr. Wells could not advise as to the reasons why she missed the thirteen (13) other days of school. The attendance records did not provide this information. There is evidence which suggests the child missed school in February, 2018 due to having a fever and at other time(s) due to medical issues arising when she first started menstruating.
25With respect to the 2018-2019 academic year, to November 30, 2018 the child has missed three (3) days of school.
Layla’s Mental Health
26The father submitted that Layla’s behavior difficulties (such as getting along with other children) has always been an issue.
27In September, 2017 the child participated in an assessment, the stated goal of which was to “investigate Layla’s cognitive, academic, executive functioning, and behavioural skills” (“the assessment”).
28The assessment was completed by Carol Gustafson (“Ms. Gustafson” / “the assessor”), Psychoeducational Consultant with the Halton District School Board.
29Mr. Wells does not dispute that Ms. Vosilla participated in the arrangement of this service and engaged in the assessment process.
30During the assessment, the mother was interviewed by the assessor. She completed the Behaviour Rating Inventory of Executive Function – Second Edition (BRIEF2) parent form, the Behaviour Assessment System for Children, Third Edition (BASC-3) parent form, and the Conners 3 parent form.
31During his submissions, the father highlighted the information the mother provided during the assessment. He advised that what the mother said was an accurate representation of Layla’s behaviours and functioning.
32The assessor concluded, “Layla has a Learning Disability characterized by deficits in executive functioning, including planning and organizing, organization of materials, task initiation, shifting attention, task monitoring, self-monitoring, and weakness in visual rote memory, visual spatial reasoning, and phonological awareness, orthographic processing, morphological processing, and linguistic math, that affects reading, writing and math”.
33Ms. Gustafson made no diagnoses regarding Layla’s mental health.
34Under the heading, “Behavioural and Emotional Functioning” the assessor simply summarized (i) the mother’s responses to the BASC-3 parent form; (ii) the responses of the child’s teacher from the previous year to the BASC-3 teacher form; (iii) the mother’s responses to the Connners3 parent form; and (iv) the responses of the child’s teacher from the previous year to some unidentified form.
35During his submissions, the father noted that the mother’s and the teacher’s characterizations of the child were similar.
36Ms. Gustafson made twenty-nine (29) recommendations for Layla.
37The father acknowledged that the only recommendation the mother could be held accountable to carry out was the last one; the assessment was very much focused on providing the school with suggestions as to how best to assist Layla with her academics and related issues.
38The last recommendation states, “It is recommended that Layla receive counseling support The Reach Out Centre for Children (R.O.C.K.) for assistance with anxiety and social relations with peers. The organization has a drop in centre at 400 Bronte Street South, Suite 101, Milton from 12:00 to 6:30 p.m. on Wednesdays”.
39Initially, the father’s argument was that the mother has not done anything to assist the child after having received the assessment. Later, he realized that the mother had taken Layla to the ROCK on one occasion after the assessment was received. His concern was then restated to be that Layla has had only one appointment at the ROCK, it didn’t happen until April, 2018 which he noted was after he commenced his motion to change, and that there was nothing in the note of the April, 2018 ROCK meeting to suggest that at that meeting the mother raised the issue of the child’s mental health.
40The mother and Layla attended the ROCK on April 30, 2018. The Walk-In Counselling Clinic Summary Report (“the April 30, 2018 note”) regarding this meeting states, in part:
(a) The goal of the session was, “Layla would like to speak to someone on her own, & Mom would like the same b/c she feels Layla tries to protect her”;
(b) “Mom & Layla use to do everything together but now Mom works evenings & so they don’t have as much time together”;
(c) With respect to what Layla reported, “When the anxiety shows up – ‘weird feeling’ & difficult to breathe. When going to Dad’s anger & crying too. Doesn’t want to be at Dad’s and doesn’t want to leave mom. Doesn’t worry about b/c he has ppl around him”; and
(d) Under ‘Plan / Next Steps / Recommendations’ it is stated, “Mom and Layla will try to find at least 10 minutes over the next wk in order to connect in a way that is meaningful to Layla. Mom will return to walk-in and/or contact Niketha when she is ready”.
41I have been provided with a copy of the ROCK’s “Brief Services Care Plan” dated June 29, 2018 (“the June 29, 2018 note”). On this date, the mother and the father’s partner met with a counsellor; the father’s partner was present for the last half of the meeting. The father did not attend as he was working. With respect to the father’s contention regarding the mother’s lack of follow through in addressing the child’s mental health, the following statements in the June 29, 2018 note are most relevant:
(a) “Mom and Layla came to ROCK earlier this year and Mom was asked to return without Layla, which is why she is here today”;
(b) “Layla is a child who has a great deal of upheaval happen throughout the course of her life, leading to a lot of unpredictability, potential loyalty binds, differing access to caregivers and siblings, and differing expectations of her behavior between homes. Throughout our conversation, we discussed concepts of co-regulation and how children tend to view the world when their caregivers are not behaving predictably. By the end of the session, both Melanie and Alicia were able to recognize that Layla’s (and her siblings’) emotional / behavioural difficulties were not in and of themselves the problem so much as they were the symptom of a larger issue, namely the lack of stability between the 3 caregivers involved”;
(c) There were no suggested next steps for the child;
(d) The suggested next steps regarding the adults was, “All 3 caregivers will access their own individual therapy, and potentially joint therapy together in order to look at how to create a sense of stability amongst each other, so that they can begin to provide a sense of predictability to Layla’s life over the longer-term; if needed, the family can re-access ROCK services for Layla in the future”.
42I have also been provided with Layla’s report card dated November 19, 2018. It does not identify significant concerns regarding Layla’s academic or social behaviours at school.
43It is also important to note that in Exhibit 1, the father states at paragraph 2, “In my own affidavit general a number of expamples of neglect and abuse have been indicated with supporting evidence to the claims”. He then goes on to say at paragraph 34, “I have no desire to make it seem as if Layla isn’t well in Melanies care. My daughter has a great relationship with her mother and expresses a great deal of love for her mother and I will continue to do everything in my ability to encourage that. Melanie is making it appear as if I am attempting to take the child away from her life. This is not the case this is about what we both as a co-parenting team on an equal access schedule and opportunities to make decisions can provide to Layla to better her future and give her the happiest, healthiest, most successful future”.
Counselling Recommendations for the Parents and the Father’s Partner
44Mr. Wells submits that joint custody is required as a result of the mother’s unwillingness / inability to follow through with counselling recommendations.
45Ms. Vosilla agrees that the parents and the father’s partner have to work together to be able to create a sense of stability and predictability for Layla. However, she notes that there are financial restraints which impact her ability to regularly attend counselling and given the way that the father and the father’s partner have treated her, it is difficult to move forward on this front.
46Ms. Vosilla also notes that their inability to work cooperatively is not a new phenomenon and was the situation at the time the final order was made, therefore there has not been a material change in circumstances.
47There were difficulties prior to the final order being made with respect to the parents’ abilities to make decisions jointly for Layla. For example,
(a) In his Reply dated April 10, 2017 to the original Application, the father noted, in part, “Melanie has gone along with the process with having Layla tested for learning disability which I do not agree is required”; and
(b) On May 3, 2017 in response to the mother providing feedback to the father regarding her May 3, 2017 meeting at the ROCK, he responded, “ok then s I’ve stated in the past she does not need counselling she’s doing just fine you just allow her to guilt trip you”.
48Their inability to communicate well continued after the final order was made. For example,
(a) On February 27, 2018 the father berated the mother in a text message because Layla missed school when sick. He wrote, “This is fucking ridiculous none of this would happen if you took her to the goddamn doctor like you said you were going to last week on Wednesday when you took her to school and then on Thursday when she was supposed to have an appointment and you cancelled because you forgot you had to work it’s little shit like this that makes you and unfit parent it’s pretty simple you kids sick you take her out of school take her to the doctors. She missed half of yesterday and a whole day today just because of a fever”; and
(b) On April 30, 2018 the father sent the mother an email which opened with, “This is my final email I am done with your bullshit this is rxactly why I don’t try to coparent have zero respect for you”.
49The mother, the father, and the father’s partner attempted counselling with Alicia Dance together after receiving the ROCK’s recommendations in June, 2018. The mother attests that she felt that she had been ganged up on by the father and his partner as they verbally attacked her for having a challenging time coping with the loss of her father.
50The mother attended for one counselling session with Ms. Dance after the joint meeting referenced above.
51The father has been attending counselling since December, 2017.
ANALYSIS
52I am not persuaded that any of the father’s above-noted claims, either separately or collectively allow me to conclude that a material change in circumstances has occurred.
53The father’s concerns about Layla’s attendance at school existed prior to the final order being made. In the face of what he views as a significant, ongoing concern, Mr. Wells consented to the mother having sole custody.
54There is no term in the lengthy, negotiated final order that addresses the issue of school attendance.
55Of the twenty-eight (28) missed school days in the 2017-2018 academic year, fifteen (15) were the result of the actions of both parents, namely taking the child out of school for holidays. This seems to have been an acceptable course of action for both parents. Even if not fully unexplained, thirteen (13) days is not an inordinate number of days for a child to be absent from school in an academic year.
56The father’s concerns regarding the child’s behavior difficulties existed prior to the final order being made. In the face of this concern, Mr. Wells consented to the mother having sole custody.
57There is no term in the lengthy, negotiated final order that addresses the issue of the mother’s follow through with services for the child.
58The mother was proactive in addressing the child’s needs as she participated in the arrangement of the assessment and engaged in the process.
59The mother demonstrated insight into the child’s behaviours throughout the assessment. The statements she made during the assessment process are consistent with what the child’s teacher the prior year observed and the father’s observations.
60The child does not have a mental health diagnosis from a mental health specialist and consequently there are no recommendations from such a professional.
61The mother followed through with addressing the child’s mental health needs when she took her to the ROCK on April 30, 2018.
62The counsellor who saw the mother and Layla at the April 30, 2018 appointment did not make a recommendation that the child requires ongoing counselling.
63On June 29, 2018 the counsellor at the ROCK did not recommend any next steps for the child.
64The father’s evidence is contradictory as to whether he in fact believes that there are concerns regarding the mother’s ability to meet the child’s needs. It seems as if he would like to re-litigate the issues that were decided on a final basis in June, 2017.
65The child’s recent report card does not indicate any significant issues of concern.
66While it is not a necessary criteria, it is noteworthy that there has been no evidence presented that independent third parties, such as school personnel, have made reports to the Children’s Aid Society of Halton regarding a lack of follow through by the mother with regard to the child’s needs.
67The mother acknowledges that counselling with the father and his partner would be beneficial.
68The mother’s reasons for being hesitant to engage in further counselling with the father and his partner and further ongoing individual counselling are understandable and reasonable in the circumstances.
69The father’s suggestion of joint custody will not remedy the issue of the lack of joint therapy for the child’s caregivers. The father did not attend the one session at ROCK that was to include all three (3) caregivers. While I appreciate he was working on this date, this session could have occurred at a time he was available to attend. All three caregivers should have been present for the entirety of this session. It’s hard to accept the father’s criticism of the mother for her lack of follow through with joint counselling when he doesn’t ensure his full participation in that which was arranged.
70Based on the foregoing, I find that there is no evidence of any change in the condition, means, needs or circumstances of the child and/or the ability of the mother to meet the needs which materially affects the child.
ORDER
The father’s motion to change originally returnable May 24, 2018 shall be dismissed.
The mother’s claim to vary child support shall be deemed to be withdrawn.
The return date of March 25, 2019 shall be vacated.
If the mother seeks costs:
a. By February 19, 2019 she shall serve and file written submissions which shall be no more than two (2) pages in length, attached to which shall be a Bill of Costs.
b. By March 18, 2019 the father shall serve and file a written response which shall be no more than two (2) pages in length.
c. By March 25, 2019 the mother shall serve and file any reply she may have.
Court services is requested bring the file to my chambers on March 26, 2019.
Released: January 22, 2019
Signed: Justice Susan Sullivan