Court of Appeal for Ontario

Date: 2018-05-22 Docket: C64885

Judges: Lauwers, Benotto and Nordheimer JJ.A.

Between

Mark Koetsier Applicant (Appellant)

and

Carmen St-Denis Respondent (Respondent in Appeal)

Counsel

Michelle Kropp and Kenneth Peacocke, for the appellant

Réjean Parisé, for the respondent

Heard and Released

Heard and released orally: May 18, 2018

Appeal Information

On appeal from the judgment of Justice R.D. Gordon of the Superior Court of Justice, dated January 3, 2018 with reasons reported at 2018 ONSC 60.

Reasons for Decision

[1] This appeal comes to this court as a result of an anomaly in the Courts of Justice Act whereby certain appellants have two appeals as of right in child custody matters. Consequently, this court is called upon to consider an order of the Ontario Court, an appeal from which has already been dismissed by a Superior Court judge.

[2] The parties are the parents of a child now age 12. They have been in conflict over aspects of her custody for over a decade.

[3] In 2007, custody was awarded on consent to the respondent (mother). Multiple motions to change were initiated and dealt with. The litigation is replete with judicial pleas for the parents to stop the conflict.

[4] In December 2015, the appellant (father) brought another motion to change custody. The respondent brought a motion for summary judgment requesting dismissal of the motion to change. The motion judge granted the respondent's motion and dismissed the motion to change on the basis that there had been no material change in circumstances that affects or is likely to affect the child.

[5] The father's appeal to the Superior Court was dismissed.

[6] The appellant submits to this court, as he did on appeal to the Superior Court, that the motion judge erred by ignoring the significance of a report ordered by the Ontario Court pursuant to s. 30 of the Children's Law Reform Act, R.S.O. 1990, c. C12. He suggests that the motion judge did not review the full report despite undertaking to do so. He submits that the report authored by Dr. Ross established a material change affecting the child and that the motion judge erred in not so finding.

[7] We do not accept these submissions.

[8] First, as determined by the appeal judge, there is a presumption that the judge honoured his undertaking. The report would have been contained in the Continuing Record and available for the judge to review.

[9] Next, we agree with both the motion judge and the appeal judge that the report did not assist the court as a material change in circumstances had not been established.

[10] The report of Dr. Ross makes it clear that the conflict between the parents together with the respondent's anger to the appellant are negatively impacting the child. The conflict was well known to the courts as far back as 2010. The law has long been established that a continuation of parental conflict does not amount to a material change in circumstances: see Litman v. Sherman, 2008 ONCA 485.

[11] Regarding the respondent's anger, Dr. Ross reported that the respondent did not appreciate the effects on the child of her unresolved anger. The mother then took steps to de-escalate the demonstrations of anger. She enrolled in "Our Family Wizard", increased the appellant's time with the child, withdrew her outstanding contempt proceedings and participated in counselling.

[12] On this basis, we agree with the appeal judge who stated at para 50:

Where, as here, there is unequivocal evidence that the cause of the change in condition of the child has been identified and reasonable steps have been taken to address the cause there is not material change in circumstances nor any requirement of a trial to determine the issue.

[13] For these reasons, the appeal is dismissed with costs payable to the respondent fixed in the agreed upon amount of $10,000 inclusive of disbursement and HST.

P. Lauwers J.A.

M.L. Benotto J.A.

I.V.B. Nordheimer J.A.