DATE: 20011210

DOCKET:C34897

COURT OF APPEAL FOR ONTARIO

LASKIN, FELDMAN AND SIMMONS JJ.A.

B E T W E E N:

DAVE WREGGITT

John Zuber for the appellant

Appellant

• and -

LAUREL BELANGER

John W. R. Johnston for the respondent

Respondent

Heard: September 6, 2001

On appeal from the order of Justice Helen K. MacLeod dated July 26, 2000

SIMMONS J.A.:

1. [1] Mr. Wreggitt appeals from an order dated July 26, 2000 varying the terms of a final order dated August 6, 1997 providing for custody and access of the parties’ two children.

2. [2] The August 6, 1997 order stipulated that the parties would have joint custody of their children and that the children’s primary residence would be with their mother. Mr. Wreggitt was entitled to at least nine overnight access visits per month. These visits were to coincide with his “rest days” from work, including Friday evenings before his Saturday “workdays”. Each party could have up to four weeks of vacation with the children per year. The 1997 order also contained a miscellany of other terms dealing with access to the children.

3. [3] The July 26, 2000 order awards Ms. Belanger sole custody of the children. Mr. Wreggitt is entitled to access every second weekend from Thursday at 5:00 p.m. until Sunday at 7 p.m. Each party may have up to three seven-day blocks of vacation time with the children every calendar year. March break and Christmas break are to be shared equally between the parties. The order contains twenty-one other provisions pertaining to custody and access of the children.

4. [4] Mr. Wreggitt advances the following grounds of appeal:

5. i) the trial judge erred by granting sole custody to Ms. Belanger and reducing Mr. Wreggitt’s access when that relief was not requested by either party;

6. ii) the trial judge determined Mr. Wreggitt’s work schedule changes amounted to a material change in circumstances but did not vary the original order by reference to that change;

7. iii) the trial judge relied on evidence of the conflict between the parties as the basis for the variations she made when that was not a factor relied upon by either party;

8. iv) the trial judge made several findings that were not supported by the evidence; and

9. v) the trial judge erred by considering a document that was not made an exhibit at the trial.

10. Background

11. [5] The parties were married on March 12, 1988. They separated in February 1996 and divorced on August 6, 1997. They have two children, aged 11 and 9.

12. [6] Mr. Wreggitt launched his motion to vary the terms of the original order on August 28, 1998. He requested an increase in access from nine overnights per month to fifteen or more overnights per month. He also asked that his second wife be allowed to pick up the children for access visits, and that the children’s mother be prohibited from smoking in their presence.

13. [7] The main ground advanced in support of a variation was that Mr. Wreggitt no longer works shift work. Rather, he works straight days from Monday to Friday each week. Mr. Wreggitt also detailed various difficulties relating to vacation scheduling, communication, and access schedule adjustments in support of his variation motion.

14. [8] Ms. Belanger delivered a reply affidavit in which she challenged what she characterized as an implied assertion that the amount of access provided in the original custody order was predicated on Mr. Wreggitt’s work schedule. She also reviewed a variety of other problems she perceived pertaining to the arrangements for the children. Further affidavits containing a variety of conflicting allegations were exchanged.

15. [9] On March 29, 1999 the original trial judge adjourned the variation motion for trial. She also made an interim variation order providing that Mr. Wreggitt would have access in alternate weeks from Wednesday at 5:00 p.m. until Sunday at 7:00 p.m., and on Thursday evenings during “off weeks” from 3:30 p.m. until 7:00 p.m. On consent of both parties, the original trial judge ordered that the local Family Court Clinic conduct an assessment as to the needs and best interests of the children in relation to the form of custody and time to be spent with each parent, in view of the conflict between the parents.

16. [10] The July 26, 2000 order was made after a seven-day trial. The parties had not exchanged pleadings, Ms. Belanger did not have a cross-motion before the court at the time of the trial, nor had she requested any specific relief in any of her affidavits.

17. [11] Both parties called extensive evidence at the trial. The Family Court Clinic Assessment was filed as an exhibit. At the request of the trial judge the parties filed written submissions detailing a variety of provisions that each wished to have included in a variation order.

18. [12] The trial judge found that Mr. Wreggitt’s revised work schedule, and the worsening conflict between the parties, each amounted to a material change in circumstances. She accordingly went on to consider the second issue, which she characterized as “the best interests of the children as to the form of custody and the time to be spent with each parent in view of the conflict between them”. She concluded:

The children’s well-being … is being detrimentally affected by the current form of custody and the current schedule, and the children’s behaviour has deteriorated. The manner in which the father has pursued this litigation has impacted the children both directly and indirectly. The father’s view is that the mother continues to try to “keep him from his children”. The father’s view in this regard is I find completely unfounded. The father[‘s] approach to joint parenting with the mother exhibits disdain towards her as a joint custodial parent. The children are under a tremendous amount of stress. The father’s pursuit of [an] “equal number of days” has been a direct contributor to this stress. I also have some serious concerns as to how the children’s emotional needs are being met while they are in the care of their father and [his second wife].

… I find that a sole custody order in favour of the mother must be made. Sole decision making for the children must be given to one parent in the children’s best interests. I find on the facts of this case after considering the evidence as a whole that it is in the children’s best interests that the mother be the sole custodial parent and that the father be given reduced access to the children. I find that the number of transitions between the two homes should be minimized to reduce the conflict for the children, and that the Thursday night mid-week visit by the father shall be discontinued.

14. DECISION

15. [13] Mr. Wreggitt says that custody was finally determined by the 1997 order, and that his request for additional overnight access did not reopen that issue. He submits, in effect, that the trial judge exceeded the scope of her jurisdiction by changing the form of custody and reducing his access when neither request was before her. Although he concedes Ms. Belanger’s written submissions filed at the conclusion of the trial included a request for reduced access, her submissions did not include a request for sole custody. Moreover, Mr. Wreggitt says it is unfair to require parties to respond to matters that were never in issue by requesting wide ranging submissions at the end of a trial.

16. [14] I disagree. The parties chose to proceed to trial without pleadings, or an order formally stipulating what documents would constitute the pleadings, and without listing the issues to be tried. The trial judge clearly relied on the consent order, directing an assessment, as the definition of the lis between the parties.

17. [15] I note that Mr. Wreggitt’s request for equal time with his children, in itself, exceeded the scope of a minor scheduling adjustment, and squarely raised the issue of the best interests of the children. The scope of the evidence adduced at trial was wide ranging. I am satisfied that the trial judge was entitled to rely on the terms of the consent order in the way that she did and that there was no prejudice to Mr. Wreggitt as a result.

18. [16] I see no merit in Mr. Wreggitt’s submission that the trial judge failed to vary the original order by reference to her finding that there was a change in Mr. Wreggitt’s work schedule. The trial judge made an express finding that the terms of the 1997 order are now inappropriate having regard to Mr. Wreggitt’s work schedule, as they would mean Mr. Wreggitt would have access to the children each weekend. She varied the access schedule accordingly.

19. [17] The trial judge did not find that the original order for access of less than equal time, was predicated on Mr. Wreggitt’s work schedule. Even if she had made that finding, the trial judge would have been entitled to consider present circumstances in determining the appropriate order for access.

20. [18] There was ample evidence to support the trial judge’s finding of “worsening conflict between the parties”. That evidence included Mr. Wreggitt’s own assertions in his affidavit material of communication difficulties, in spite of the benefit provided by the communication book required by the original order; Mr. Wreggitt’s testimony concerning the level of conflict; and the findings contained in the Family Court Clinic assessment.

21. [19] I am satisfied that the finding of worsening conflict justified the trial judge’s decision to vary the 1997 order by awarding sole custody to Ms. Belanger, and eliminating the “off-week” mid-week access that was included in the interim variation order.

22. [20] Conflict and lack of co-operation, whatever the source, are an impediment to an effective joint parenting arrangement, as well as a source of stress for the children. Although the trial judge, in 1997, noted the existence of anger and hostility between the parties, she also complimented them for undertaking “marathon efforts” at mediation to work out the children’s schedule, and for making regular alterations to the children’s schedule in spite of those emotions. Any cause for optimism in 1997, that the parties could overcome their hostility and co-parent effectively, had clearly vanished by 2000, and accordingly justified the noted orders.

23. [21] I am not, however, persuaded that these findings justified the trial judge’s decision to reduce the level of access set out in the original order from at least nine overnights per month (108 per year) to three overnights every two weeks (78 per year). The reduction is substantial. Although the trial judge’s findings supported her decisions to change the form of custody and reduce the number of transitions provided for in the interim variation order, she did not make findings specific to this very significant change.

24. [22] While concern was raised as to “how the children’s emotional needs are being met while they are in the care of their father and [his second wife]”, having regard to the positive findings made in 1997, and comments on Mr. Wreggitt’s attributes in the assessment report, I am not satisfied a change of this magnitude was justified. If, at some point in the future, there is positive evidence of the children’s emotional needs not being met, that could be a material change sufficient to justify further variation. Accordingly, the provision in the interim variation order, for four overnight visits (Wednesday to Sunday), in alternating weeks, (104 overnights per year) should be continued.

25. [23] It is unnecessary that I determine whether the evidence supported the trial judge’s findings concerning Mr. Wreggitt’s motivation for bringing the application and other specific details that were challenged. Even if the impugned findings are not supported by the evidence, having regard to the finding in the assessment report, that “every detail of the children’s lives will need to be clearly spelled out by the Court in order to avoid dispute”, I see no basis to interfere with any other aspect of the order made. I am, however, treating the specified Christmas and March break “shared holidays” as being over and above the three weeks of general vacation access provided in the July 2000 order.

26. [24] I would accordingly allow the appeal in part. I would set aside paragraph 1(ii) of the order of MacLeod J. In its place, I would substitute an order that:

The applicant father, David Wreggitt shall have access to the two children of the marriage every second weekend commencing with his next regularly scheduled access week, from 5:00 p.m. on Wednesday through to 7:00 p.m. on the following Sunday.

27. [25] I would make no order as to the costs of the appeal as success on the appeal is divided.

28. Released: December 10, 2001 “JL”

29. “Janet Simmons J.A.”

30. “I agree John Laskin J.A.”

31. “I agree K. Feldman J.A.”