Court of Appeal for Ontario

Date: 2024-01-10 Docket: C70742

Before: Brown, George and Monahan JJ.A.

Between:

Douglas Edward (Ted) Cuthbert Applicant (Respondent)

And:

Kristine Nolis Respondent (Appellant)

Counsel: Gary Joseph and Julia McArthur, for the appellant Douglas Edward (Ted) Cuthbert, acting in person

Heard: November 30, 2023

On appeal from the order of Justice Andrew Pinto of the Superior Court of Justice, dated May 3, 2022.

George J.A.:

A. Background

[1] At the conclusion of oral submissions, the appeal was dismissed with reasons to follow. These are the reasons.

[2] The appellant mother and respondent father began cohabiting in 2010 and separated in 2014. They never married but had two children: a 12-year-old son, G, and a 10-year-old daughter, K.

[3] Following separation, the appellant acted as the custodial parent. The respondent had parenting time with the children on Wednesday evenings and every other weekend. He never accepted this parenting arrangement as fair and commenced an application. He also brought three motions seeking increased parenting time, all three of which were unsuccessful.

[4] On August 1, 2018, after a ten-day trial, Goldstein J. awarded joint custody and ordered that the respondent continue to have parenting time on Wednesday evenings and every other weekend (the “2018 order”). However, Goldstein J. also held that the respondent “should, gradually, have the opportunity to increase access with a view to eventually reaching 50/50”. He reasoned that “more access for [the respondent] is in the best interests of the children” provided it is “done in a gradual, monitored way”. He accordingly included a review term in his order as follows:

After August 1, 2019, the Applicant Father may apply to increase access eventually leading to 50/50 access. The parties will attempt to work out a schedule. The parties may speak to the matter before Justice Goldstein or another judge if they are unable to work out an access schedule. Any new application regarding access shall be brought as part of this file/proceeding.

[5] The parties could not agree on a new parenting schedule.

[6] On August 6, 2019, the respondent brought a motion to increase his parenting time on a step-up basis to an equal “2/2/5/5” schedule. The motion was later converted to a motion to change and culminated in a second trial that led to the order now under appeal.

[7] On May 3, 2022, the trial judge found in favour of the respondent and awarded him gradually increasing parenting time, with the children ultimately residing with each parent on a “2/2/5/5” schedule. He further held that joint decision-making would continue, that telephone access be limited to a ten-minute phone call per child, and that attendance at the children’s activities be restricted to the parent who has care of the children at the time, unless it was at a “recital, concert, championship game, or special event where there is an audience”. He awarded the respondent costs in the amount of $13,000.

B. The Appeal

[8] The appellant argues that the trial judge erred by 1) changing a final order when there was no material change in circumstances, 2) admitting and relying on hearsay evidence, 3) permitting the respondent to amend his pleadings at trial, and 4) failing to consider the best interests of the children. She also seeks leave to admit fresh evidence relating to “what has occurred during [the respondent’s] parenting time with the children”, as well as leave to appeal the trial judge’s costs order.

[9] For the following reasons, the appellant’s main grounds of appeal are rejected and his appeal is dismissed. The appellant’s motion to admit fresh evidence is denied. While leave to appeal the trial judge’s costs award is granted, the appeal against costs is dismissed.

(i) Respondent was not required to demonstrate a material change in circumstances

[10] The 2018 order – despite being styled a final order – expressly permitted the respondent to apply for a change to the parenting schedule. It in no way required him to demonstrate a material change in circumstances. As Myers J. noted in his procedural endorsement dated August 15, 2019, “[t]he order is a final order but Justice Goldstein made it clear that the process could occur without a material change”. That is, Goldstein J. put in place a process to gradually implement what he determined was in the children’s best interests: an eventual 50/50 parenting time arrangement.

[11] While a review term in a final parenting time order is relatively rare, it is well-established that courts have jurisdiction to impose them: M. (K.A.A.) v. M. (J.M.) , 2005 NLCA 64 , 259 D.L.R. (4th) 344, at paras. 25-36 . Neither party is required to establish a material change in circumstances with respect to an issue on which the court has authorized a review: Sappier v. Francis, 2004 NBCA 70 , 246 D.L.R. (4th) 482, at para. 9 . Contrary to the appellant’s submissions, s. 29 of the Children’s Law Reform Act , R.S.O. 1990, c. C. 12 does not impose an absolute requirement that a material change be shown in every case where a party seeks to vary a final order. As the Ontario Superior Court held in Fournier v. Fournier, 2020 ONSC 606 , at paras. 84-85 , “there is a narrow exception to the requirement that a material change in circumstances be shown, where the court has authorized a ‘review’”, which must be “narrowly construed and rarely ordered”. More recently, in Y.M.S. v. R.O.S., 2021 ONSC 6684 , at para. 70 , Doi J. held that a “review term under [a] parenting time provision in [a] Final Order creates a rare and narrow exception to the usual requirement that a material change in circumstances be shown to vary a parenting order”.

[12] Again, review terms in final parenting time orders are not the norm. As the Supreme Court has directed, “[i]nsofar as possible, courts should resolve the controversies before them and make an order which is permanent subject only to change … on proof of a [material] change of circumstances”: Leskun v. Leskun, 2006 SCC 25 , 268 D.L.R. (4th) 577, at para. 39 . Courts have recognized that it is generally in the best interests of children to provide them “with stability in their lives following family breakdown” by incorporating “some sense of finality into child-care arrangements”: M. (K.A.A.) , at para. 26 . For this reason, review terms are seldom ordered and must be 1) justified by genuine and material uncertainty at the time the original order is made, and 2) tightly delimited with respect to the issue or issues that will be subject to review: Leskun , at paras. 37-39 ; Fisher v. Fisher, 2008 ONCA 11 , 88 O.R. (3d) 241, at para. 65 .

[13] Provided these criteria are met, review terms allow a court to avoid “[locking] the parties and the children into an access arrangement” where “[t]he situation continues to unfold in real time” and where the trial judge is not in a position to finally determine the appropriate parenting arrangements: Children and Family Services v. G.S., 2011 ONSC 1732 , 279 O.A.C. 296, at para. 92 . Put differently, a court-ordered review “removes the need for an aggrieved parent to ‘guesstimate’ when things have reached the point that he or she must return the matter to court”: M. (K.A.A.) , at para. 26 .

[14] I therefore accept that, in some circumstances, a review term may be appropriate but should be limited to situations where the parties’, or children’s, circumstances were uncertain at the time the original order was made. This is such a case. At the time of the 2018 order it was unclear what was causing G’s anxiety, nor was the extent of it well understood. While the fact a child is aging will never, on its own, amount to a material change in circumstances, when the 2018 order was made Goldstein J. found that “[G’s] anxiety seems to have improved with age” which, in my view, made a review term reasonable.

[15] In any event, I would not interfere with the trial judge’s conclusion that, even though not required in this case, there had been a material change in circumstances. This finding was rooted in and amply supported by the fact that G’s anxiety had “improved sufficiently” from 2018 until the order under appeal, and that it was “no worse when he is with [the respondent] than with [the appellant]”. The trial judge carefully reviewed evidence relating to G’s anxiety from multiple sources, including G’s counsellor, G’s schoolteachers, and the s. 112 report from the Office of the Children’s Lawyer (“OCL”). His factual findings are reasonable and entitled to deference.

(ii) Trial judge did not improperly rely on hearsay evidence

[16] The appellant’s hearsay complaint is in relation to the trial judge’s decision to admit a letter from Dr. Noble, a psychologist who had met with G, which expressed her view that G did not require long-term counselling or more serious treatment for his anxiety. Apart from the fact that the appellant cross-examined the respondent on the content of this letter, I observe that the appellant did not object to its admission, and that it was referenced by the OCL clinician in her report. Further, and in any event, there was otherwise a basis upon which the trial judge could assess the level of G’s anxiety, including the respondent’s evidence, the absence of a formal diagnosis, and the indication that G was doing well in school. I therefore reject this ground of appeal.

(iii) Trial judge did not err by allowing the respondent to amend his pleadings

[17] As it did not give rise to any prejudice, or otherwise disadvantage the appellant, the trial judge did not err by permitting the respondent to amend his pleadings at trial. The appellant had ample opportunity to present her case and respond to the respondent’s position. Moreover, it is well-established that the test for leave to amend under r. 11(3) of the Family Law Rules , O. Reg. 114/99 strongly favours permitting amendments except in the clearest of cases: Studley v. Studley, 2022 ONCA 810 , at para. 15 ; Davidson v. Davidson, 2021 ONSC 7459 , at para. 22 . The trial judge reasonably concluded that this was not such a case, and his decision is entitled to deference: Studley , at para. 15 .

(iv) Trial judge considered the children’s best interests

[18] Nor do I accept that the trial judge failed to consider the best interests of the children, the only relevant consideration when assessing a child’s residence, decision-making authority, and parenting time. The trial judge cited the applicable provisions of the Children’s Law Reform Act and carefully considered the relevant factors. A trial judge’s factual findings are entitled to substantial deference, especially in family law cases, where the court can interfere “only where the fact-related aspects of the [trial] judge’s decision … [exceed] a generous ambit within which reasonable disagreement is possible and is plainly wrong”: Alajajian v. Alajajian, 2021 ONCA 602 , at para. 4 , citing Johanson v. Hinde, 2016 ONCA 430 , at para. 1 . I see no reason to interfere on this basis.

(v) Appellant’s fresh evidence is not properly admissible

[19] The appellant seeks to introduce fresh evidence which she asserts reveals “significant developments to the children’s circumstances” since the appeal was perfected. The fresh evidence consists primarily of correspondence relating to incidents during the respondent’s parenting time and the resulting impact on the children’s mental and physical health. According to the appellant, the fresh evidence “directly deals with [the trial judge’s] decision to ignore the voice of the children and the views of the OCL and failing to consider the results of [G’s] mental health assessment”.

[20] The appellant’s fresh evidence motion is dismissed. None of the evidence she seeks to admit meets the criteria in Palmer v. The Queen , [1980] 1 S.C.R. 759, at p. 775. Rather, the evidence is essentially an extension of the evidence placed by the appellant before both Goldstein J. and the trial judge. It simply reinforces the parties’ diametrically opposed views regarding certain events and what is in the children’s best interests. Evidence pertaining to these issues was comprehensively canvassed and considered at both trials. The nature of the fresh evidence is not new, nor does it bear on a potentially decisive issue on appeal. Leave to admit the fresh evidence is denied.

(vi) Costs awarded by trial judge are reasonable

[21] An award of costs by a trial judge is an exercise in discretion and will only be set aside when the trial judge has made an error in principle or if the costs award is plainly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9 , [2004] 1 S.C.R. 303, at para. 27 . While the appellant is granted leave to appeal the trial judge’s costs award, it is reasonable and owed deference. I therefore reject this ground of appeal.

C. Disposition

[22] The appeal is dismissed.

[23] Costs of the appeal to the respondent in the all-inclusive amount of $8,329.22.

Released: January 10, 2024 “D.B.” “J. George J.A.” “I agree David Brown J.A.” “I agree P.J. Monahan J.A.”