DATE: 20020307 DOCKET: C35872

COURT OF APPEAL FOR ONTARIO

McMURTRY C.J.O., CHARRON and GOUDGE JJ.A.

B E T W E E N:

KATHERINE PARKS

Yolanta M. Lewis, for the appellant

Appellant

• and -

RANDALL STEADMAN BARNES

Philip M. Epstein, Q.C. and Aaron Francs, for the respondent

Respondent

Heard: February 19, 2002

On appeal from the order of Justice Dandie dated January 11, 2001.

BY THE COURT:

[1] The appellant mother appeals from the order of Dandie J. dated January 11, 2001 awarding custody of her seven year old son Ethan to the respondent father. The order varied a consent order dated June 13, 1997 that provided for custody to the mother and access to the father. By subsequent order of Laskin J.A. of this court, dated February 27, 2001, the child was returned to his mother’s custody, with continuing generous access to the father, and the order of Dandie J. was stayed pending the hearing of the appeal. For the reasons that follow, we would allow the appeal, set aside the order varying custody, and restore custody of the child to the mother, subject to generous access to the father.

[2] The parties are the natural parents of Ethan, born on September 2, 1994. The mother is not married. She became pregnant with Ethan during the course of an extra-marital affair with the father. Throughout his relationship with the mother, the father was married to, and, unbeknownst to the mother, continued to live with his spouse Dianne Barnes. The relationship between the parties ended in April 1995 when the father disclosed to the mother that he still lived with his wife. Following the break-up, Ethan continued to live with his mother, subject to the father exercising regular access. Issues of custody and access were agreed upon by the parties and incorporated in the consent order dated June 13, 1997.

[3] The father first disclosed to his wife his affair with the mother, Ethan’s existence, and his ongoing relationship with his son in the early part of 1998. Later in August 1998, he brought this application seeking sole custody of Ethan. The evidence disclosed that Dianne Barnes is willing to accept Ethan into her home and into her life.

[4] A significant issue arose on the application and on appeal whether the father met the onus of showing that a material change of circumstances had occurred sufficient to warrant a re-examination of the existing custody arrangement. It is common ground between the parties that a material change is one that, if known at the time of the original order, would likely have resulted in a different order. The trial judge concluded that the disclosure of Ethan’s existence to the respondent’s wife and her willingness to accept Ethan into her home constituted the requisite material change of circumstances.

[5] With respect, we cannot agree. In our view, it cannot reasonably be said that these circumstances, if known at the time of the original order, would likely have resulted in a different custody arrangement. Consequently, the trial judge erred in finding that the threshold test for variation had been met.

[6] The respondent argues that the trial judge’s finding that there had been a material change of circumstances can nonetheless be supported on the basis of the mother’s “campaign of parental alienation” and her continued unwillingness to promote a relationship between Ethan and his father, despite certain admonitions contained in an assessment report prepared for the court in September 1999. Indeed, the trial judge’s reasons are essentially focused on the mother’s conduct, and his decision to award custody to the father is largely based on certain recommendations contained in the assessor’s report. It is therefore necessary to review some of this evidence.

[7] It is abundantly clear on the evidence that both parents are deeply attached to Ethan and that they each want the best for him. There is also no doubt on the evidence that, given the father’s deception surrounding the birth of the child and his ongoing lack of financial support[^1], there is a significant hostility on the part of the mother towards the father. This hostility has resulted in the mother having difficulty accepting and promoting the relationship between Ethan and his father.

[8] The mother’s deep resentment of the father and its potential impact on the child’s relationship with his father were noted by the assessor in his assessment report. After describing the mother’s difficulties in accepting the relationship, the assessor expressed the hope that the mother could accept a relationship between Randy and Ethan and added that “should these changes not be forthcoming it may call into question the wisdom of leaving the child with the mother as the primary caregiver”. His conclusion that custody should remain with the mother was similarly qualified as follows:

It is important to note that all the professionals involved with the child had no major concerns to report regarding [the mother’s] parenting of Ethan. While it is my belief that the father is better able to provide an environment supportive of Ethan’s emotional growth, the length of time that the child has lived with his mother and the significant relationship that he has with her supports the continuation of the current living arrangement.

This arrangement should be reexamined should the mother be unable to develop the ability to promote Ethan’s relationship with his father. If these changes are not forthcoming it may be necessary to remove Ethan from his mother and place him with his father.

[9] The trial judge placed much reliance on this opinion in arriving at his decision to award custody to the father. He found that the mother had “not effected the necessary changes” in her attitude and that she had “embarked upon a course of conduct which [was] not only detrimental to the father-son relationship but also to the little boy himself.”

[10] The trial judge described certain incidents in support of his finding that the mother had not effected any significant change in her attitude towards the relationship between Ethan and his father. The incidents noted by the trial judge were mainly, if not entirely, related to the mother’s objection to the father’s daily presence in Ethan’s classroom as a volunteer and to the steps she undertook to change this state of affairs. The mother testified at trial that she did not believe it to be in the best interests of the child to have a parent in the classroom supervising what he is doing. She felt that the child would not be able to express himself in the same way and that, when in school, he should be learning from the teacher. The steps taken by the mother referred to by the trial judge in his reasons included an attempt to persuade other parents that the father’s presence was detrimental to their children, a visit to the principal of the school to discuss the matter in the company of Ethan, and a transfer of Ethan to another school at the end of senior kindergarten. The trial judge expressed sharp criticism of the mother’s conduct in this regard and relied on these incidents in support of his critical finding that the mother had not paid heed to the assessor’s admonitions that she should change her attitude with respect to Ethan’s relationship with his father.

[11] While the trial judge’s findings of fact concerning the mother’s conduct are supported by the evidence and his view that such conduct was “reprehensible” is entitled to deference in this court, it is our view that the evidence cannot reasonably support the trial judge’s further finding that the mother’s conduct had a detrimental effect on the relationship between the father and son and on the child himself so as to warrant a re-examination of the custody arrangement. Indeed, the trial judge made no specific findings of fact in support of his conclusion that there was resulting detriment to the child. Nor can we find support for his finding on a review of the evidence.

[12] On everyone’s account at trial, Ethan is developing very well. He is in good health. He has adjusted to school and generally behaves in a socially appropriate manner. He is intelligent and does quite well in school. Ethan has a close and healthy relationship with his father. He also has a significant relationship with and attachment to his mother. Despite the mother’s feelings towards the father, the father concedes that his access to his son has never been denied. The school reports both parents as being appropriate parents and, despite the father’s numerous complaints about the mother’s parenting ability, as noted in the assessor’s report, all professionals involved had no major concerns in this respect.

[13] We therefore conclude that the trial judge erred in finding that there had been a material change in circumstances that warranted a re-examination of the existing custody arrangement. He further erred in his assessment of the existing relationship between the parties and the child by placing undue emphasis on the mother’s conduct with insufficient regard to the critical issue whether her conduct had any significant effect on Ethan and on his relationship with his father. There is an obvious risk to any child of tender years who is the centre of an acrimonious dispute between the parents. However, the trial judge’s findings do not support the conclusion that it is in Ethan’s best interests that he be removed from his primary caregiver since birth.

[14] The appeal is therefore allowed, the order of Dandie J. is set aside, and the respondent’s application to vary custody is dismissed. Consequently, the consent order providing for custody to the mother continues in effect. The parties are in agreement that the terms of access should be revisited in order to make them more age appropriate to the child. There will be an order awarding generous access to the father the terms of which are to be agreed upon by the parties, failing which an application can be brought before a court of competent jurisdiction. We make no order as to costs on the application or on the appeal.

“R. Roy McMurtry C.J.O.”

“Louise Charron J.A.”

“S. T. Goudge J.A.”

Released: March 7, 2002 “RRM”

[^1]: Although the father is educated and admittedly capable of working, he has not been gainfully employed since 1988. He provides support for Ethan in the amount of $250 a month from monies he receives from his mother.