COURT FILE NO.: FC-11-936-4 DATE: 2023-07-10 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lanie Hormillosa, Applicant AND Octave Tshiani-Levine, Respondent

BEFORE: The Honourable Mr. Justice Marc Smith

COUNSEL: Steve Duplain, Counsel for the Applicant Self-represented Respondent Hana Ahmad-Yousuf, Counsel for the Office of the Children’s Lawyer

HEARD: March 28, 2023

Reasons for Decision

M. Smith J

[1] This is a case involving the breakdown of a relationship between a father and his children.

[2] The Applicant Lanie Hormillosa (“Mother”) and the Respondent Octave Tshiani-Levine (“Father”) married on September 9, 1998, and separated on March 28, 2011. Since the separation, they have been embroiled in a high conflict family law proceeding.

[3] There are three children of the marriage. Two of them are now adults (“A and B”). The last child, almost 17 years old (“C”), is the subject of this proceeding.

[4] On February 20, 2014, Mackinnon J. made a final order, on consent, where the parents shared joint custody of B and C. Both children would reside equally between the parties’ households.

[5] In 2018, the Father brought a Motion to Change, seeking to vary the final order of MacKinnon J. Specifically, he sought sole custody of B and C, with the Mother’s access being changed to every second weekend. The Mother responded and sought her own change, namely that B and C reside in her sole custody and that the children have ongoing liberal access to their Father.

[6] On March 16, 2020, the Office of the Children’s Lawyer (“OCL”) was appointed to represent the minor children.

[7] As noted above, B is now an adult. As such, B is not subject to these proceedings.

[8] The Mother brings a motion for summary judgment seeking the dismissal of the Father’s Motion to Change and the granting of judgment of her parenting claim for C, or alternatively, no parenting order.

[9] The affidavits filed on this motion are:

a. Affidavit of the Mother dated December 21, 2022. b. Affidavit of the Father dated March 15, 2023. c. Affidavit of Raquel Beauvais-Godard dated March 21, 2023, a social worker who was assigned as a clinical assist to counsel for the OCL. d. Affidavit of the Mother dated March 22, 2023. e. Affidavit of the Father dated March 24, 2023. This affidavit was admitted, despite the Mother’s objection that the Father failed to comply with the Family Law Rules, O. Reg. 114/99 (“FLR”).

[10] The Father brings his own motion. He seeks an order to vary child support and repayment by the Mother. He also seeks an order for questioning, that the matter be referred to the Children’s Aid Society, and for an assessment by an expert on parental alienation. The Mother objects to the Father bringing a motion at this time, on the basis that Shelston J. only granted leave to the Mother to bring her summary judgment motion.

[11] The Court agrees with the Mother’s position. Shelston J.’s order at the Trial Management Conference dated December 9, 2022, is clear. The Father was not granted leave for his motion. His request to proceed with his motion is denied.

Issues

[12] The Father concedes that C’s primary residence and parenting time are not in dispute. Accordingly, the only parenting issue to determine on this motion summary judgment is decision-making responsibility for C.

Position of the Parties

[13] The Mother says that C has been in her care since 2020 and there is no compelling reason to change the status quo. C is doing well in her care. The Mother argues that there is no genuine issue requiring a trial regarding parenting for C.

[14] The Mother submits that, importantly, C is almost 17 years old. He has clearly and independently given his views and preferences of continuing with the current parenting regime. He attends and does well in high school, he plays sports, and works part-time. He plans on attending University or College.

[15] The Mother denies that she has participated in parental alienation. She submits that the Father’s evidence is largely based on hearsay, with egregious allegations that are not borne out in the evidence.

[16] The Mother argues that summary judgment is appropriate in these circumstances. Even if an in-depth examination of the evidence occurred by way of a trial, it would not lead to a different outcome. She submits that the Father’s Motion to Change would fail at trial.

[17] The OCL submits that its role is to bring to light C’s views and preferences. C’s views were given in an independent manner. He wishes to remain with his Mother. If an order was made to the contrary, he indicated that it would not be followed, as he has done in the past.

[18] The Father claims that since the issuance of the final order in 2014, the Mother has engaged in a lengthy parental alienation exercise, resulting in a breakdown of relationship with his children. He says that A and B have a profound hatred for him, without any justification.

[19] In specific reference to C, the Father says that, in 2020, he left his home, for no reason, and he never returned. Although C’s school is located beside his Father’s residence, C has not made any efforts to establish a relationship with him, which he attributes to the Mother’s alienating conduct.

[20] The Father does not believe that C’s views and preferences are his own. He submits that C has been influenced by the Mother, as well as the OCL. Furthermore, he claims that C is struggling at school, he is mentally tormented, with previous suicidal thoughts, and he is physically unwell.

[21] The Father is concerned that because of the Mother’s alienating behaviour, C’s mental and physical health will be negatively impacted. He asks the court to prevent his child from further suffering.

Legal Principles

[22] Rule 16(6) of the FLR provides that if there is no genuine issue requiring a trial of a claim or defence, the court may make a final order accordingly.

[23] Rule 16(6.1) of the FLR sets out the approach to follow, including weighing the evidence, evaluating the credibility of a deponent, and drawing any reasonable inference from the evidence.

[24] In determining a parenting order under the Divorce Act, R.S.C. 1985, c.3 (2nd Supp), s. 16(1) provides that the sole consideration for the court is the child’s best interest, considering the factors listed at s. 16(3).

[25] Before varying a final parenting order, the court must first determine if there has been a material change in the circumstances, followed by an inquiry if it is in the child’s best interest to vary the original parenting order: Lopez Ramirez v. Castro Estupinan, 2021 ONSC 5122, at para. 32.

[26] The test for summary judgment is set out in Ramdial v. Davis, 2015 ONCA 726. Each party must put their best foot forward regarding the material issues at play.

Analysis

[27] The Court is of the view that there is no genuine issue requiring a trial regarding C’s parenting. For the reasons set out below, the Court is satisfied that it is in C’s best interest that the Mother be granted sole decision-making responsibility.

Parental Alienation

[28] The crux of the Father’s position is that the Mother is the cause of the damaged relationship with his children. On the evidentiary record before me, the Court does not find that the children have been alienated from their Father.

[29] Although expert evidence about parental alienation is not necessary, the Father nonetheless had the opportunity to participate in a parenting assessment, where his allegations of parental alienation could have been fully explored. However, he refused. On September 13, 2019, on consent, Audet J. ordered that the Father provide the names of three qualified assessors to conduct an assessment. The Father proposed three social workers to the Mother, all of whom were acceptable to her. Counsel for the Mother advised the Father that he reached out to the proposed assessors and obtained information regarding their availability and associated costs. The Father inappropriately objected to counsel’s actions of contacting the proposed assessors. As a result, the Father decided that he was then no longer interested in pursuing an assessment. Had the Father been truly concerned with parental alienation, as alleged, the Court believes that he would have proceeded with the court ordered assessment.

[30] The Father’s evidence regarding parental alienation is mostly focused on his strained relationship with B. He claims in his affidavit material that in late 2022, B would have confined in him that the Mother had engaged in parental alienation and that she lacked parenting skills. Although r. 16(5) of the FLR allows the court to consider hearsay evidence, the Court does not find the Father’s hearsay evidence to be reliable. B and the Father have been estranged for six years. It is illogical and unreasonable to believe that after all these years, B would have made such revelations.

[31] The Father filed disturbing emails written by B in January 2023 regarding their damaged relationship. He says that these emails demonstrate the parental alienation perpetrated by the Mother. The Court disagrees. To the contrary, the Court finds that these emails quite clearly show that the Father’s breakdown of his relationship with B is attributable to his own conduct and behaviour.

[32] The Father also filed a previous affidavit that had been sworn by his eldest child A, dated January 25, 2019. A was 22 years old at the time of swearing the affidavit. The evidence reveals that A does not have a relationship with his Father since the age of 17 years old, when the Father requested that him to leave his home. Similarly, the Court finds that this affidavit clearly shows that the Father’s breakdown of his relationship with A is attributable to his own conduct and behaviour.

[33] In terms of the Father’s relationship with C, the Court is not persuaded by the Father’s evidence that he has also been alienated from his Father. The Father has not presented clear and direct evidence of the Mother’s alienating behaviour vis-à-vis C. As described in greater detail later in this decision, C shared his views and preferences regarding parenting. The Court finds C’s evidence compelling, and it does not show a child who has been the victim of alienation. Rather, like his siblings, C has a strained relationship with his Father because the Father’s conduct and behaviour.

[34] The Father’s evidence does not demonstrate that the breakdown of relationships with his children is due to the Mother’s alleged alienating conduct. Rather, it’s the opposite. The Father lacks complete insight into the significant role that he played in the breakdown of his relationships with A, B, and C. His crusade to punish the Mother for his failures must come to an end.

[35] The Father has had years to marshal the evidence in support of his parental alienation allegations against the Mother. He has not done so. Rather, he waited until the eve of this motion for summary judgment to file his evidence, which the Court finds is insufficient to conclude that the issue of parental alienation requires a trial.

Material Changes in Circumstances

[36] In determining whether a change to decision-making responsibility should be granted, the court must embark on a two-stage inquiry. First, there must be a material change in circumstances. Second, if a material change in circumstances has been established, the court must embark on a fresh inquiry into the best interest of the child to vary the final order.

[37] The Court is satisfied that there is no genuine issue requiring a trial regarding the parenting of C. The evidence overwhelmingly convinces the Court that sole decision-making responsibility of the child should be granted to the Mother.

[38] The first part of the test has been established. It is undisputed that there has been a material change in the circumstances of C since the making of the final order dated February 20, 2014. The shared parenting regime ceased in 2020, when C no longer attended at the Father’s residence. And, since the 2021 Christmas holidays, C has not seen or spoken to his Father.

[39] Regarding the second step of the test, in determining that it is in C’s best interest that the Mother be granted sole decision-making responsibility, the Court has considered several factors set out in s. 16(3) of the Divorce Act. The factors outlined in the text that follow, are in the Court’s view, the most relevant to the determination of the issue.

C’s Views and Preferences

[40] C is almost 17 years old.

[41] C’s views and preferences were shared with Ms. Beauvais-Godard. They can be summarized as follows:

a. He currently resides with his Mother and wishes to continue. He does not want to disrupt his current schedule, saying that it “works really well for me”. He is busy with school, homework, a part-time job, gym, and sports. b. The last visit with his Father occurred during the 2021 Christmas holidays. He is open to seeing his Father when he has free time. He would like to have a relationship with his Father, but he does not have his telephone number. He is open to having two scheduled calls with him, preferring evenings because of his busy schedule. He would like to spend one week of the Christmas holidays with his Father. c. He is aware that his Mother would be opposed to him having more contact with his Father because of past events. But he believes that his Mother would understand and support him if he was to attempt re-establishing a relationship with his Father. d. He would like both parents to be involved in and attend celebrations such as graduation and other ceremonies. e. He attends high school, and he aspires to become an astronomer or an archeologist. He succeeds well in history. f. He works on a part-time basis and has received five raises since he first began. g. He plays Rugby, Basketball, and attends the gym six times per week. He is a self-motivated athlete. h. He describes growing up with his Mother as “really good” and “the best I could ever hope for”. He says that his Mother is supportive, fun, gentle, and nice. He rates his time with his Mother as a 9 on 10. i. He says that life at his Mother’s home was better than his Father’s. That said, he rates his time with his Father as an 8 on 10 because it was quiet, and he enjoyed going to the movies, drives, talking and catching up. He recalls that doing homework with his Father was stressful. He had to stay up late in grade 4 to practice math and his writing skills. He describes his Father as sometimes being fun, and other times being rude and strict.

[42] The Father’s position that C’s views and preferences have been influenced by his Mother, the OCL lawyer, and/or the social worker, is not supported by the evidence. The Court finds C’s comments to be genuine.

[43] The Father believes that C has not been truthful in expressing his views and preferences. The Court disagrees. To the contrary, the Court finds that C’s views are measured and independent, in that he can recognize the positives and negatives in both parents. He also provides highly contextualized and concrete reasons for his preferences, which speaks volumes to his level of maturity.

[44] The Court attributes significant weight to his views and preferences, based on his age, maturity, and independence.

C’s Needs

[45] C was six years old when his parents separated. Ten years later, he is still involved in his parents’ marital dispute. C needs stability and he has expressed his desire to continue with the existing parenting regime. It is in C’s best interest that he no longer be involved in any further legal proceedings, such as a trial.

C’s Relationship with Each Parent

[46] The evidence clearly demonstrates that C has a significantly much closer bond to his Mother. His relationship with the Father is strained and it has been non-existent since 2021. Despite this damaged relationship, C is prepared to work towards re-establishing the relationship with his Father, demonstrating a great deal of maturity.

[47] The Court accepts the Mother’s evidence that she understands and recognizes that C’s relationship with his Father is important. C recognizes that his Mother may oppose his desire to develop a relationship with his Father, but he nonetheless believes that if he “pushed hard enough”, his Mother would support his desires.

[48] On the other hand, the Father does not support C’s relationship with his Mother. He has continuously blamed her for the breakdown of his relationship with C, as well as his other children. The Father’s unwavering beliefs will never change, and this is contrary to the best interest of his child.

[49] Since 2020, C has been residing solely in his Mother’s care. Then, in 2021, there was a total breakdown in the relationship between C and the Father. C has developed into a young man with great potential. He is focused, he is doing well at school, he is excelling in sports, all while being able to succeed in his part-time job. These successes in his life are undoubtedly attributed to his Mother’s care and support, as well as his own resilience and self-motivation.

[50] The Father claims that C is not well, both mentally and physically. Moreover, he claims that he rarely goes to school and does not turn in his homework. These are merely bald allegations, with no supporting evidence.

Summary

[51] Despite the turmoil that the Mother has experienced because of this long and protracted family law proceeding with the Father, she has nonetheless been able to parent C to the best of her ability, providing him with the love, guidance, and support that he needed during some very difficult times. Because of the Mother’s parenting skills and abilities, C had a good upbringing. The evidence supports the conclusion that C has lived in a warm and welcoming home with his Mother, and he continues to live in this environment to the present day.

[52] There is no realistic possibility of an outcome other than the status quo. The parenting issues for C can easily be decided justly and fairly, without the necessity of a trial. There is no evidence to be concerned with C’s physical, emotional and psychological safety, security, and well-being. Furthermore, there are no compelling reasons why the current parenting regime should cease.

Disposition

[53] The Court finds that in C’s best interest, the current parenting regime should continue, and that the status quo be maintained. The Mother shall continue to exercise sole decision-making responsibility for C.

[54] On the issues of costs for this motion, the Mother shall deliver written submissions, limited to five pages excluding the Bill of Costs and Offers to Settle, within 60 days of the release of these Reasons for Decision. The Father may then deliver responding written submissions, with the same page restrictions, within 30 days thereafter.

M. Smith J

Released: July 10, 2023