Court of Appeal for Ontario

COURT OF APPEAL FOR ONTARIO DATE: 20210423 DOCKET: C68833

Benotto, Miller and Trotter JJ.A.

BETWEEN

Brianne Harrison Moar Appellant

and

Daniel John McLaughlin Respondent

Counsel: Maybelline R. Massey, for the appellant Danica Maslov, for the respondent

Heard and released orally: April 22, 2021 by video conference

On appeal from the order of Justice J.R. Henderson of the Superior Court of Justice, dated October 9, 2020.

Reasons for Decision

[1] The appellant submits that the motion judge erred in concluding that a material change in circumstances existed for the purposes of a motion to change under Rule 15 of the Family Law Rules.

[2] The parties agreed that, pursuant to r. 16, the issue of whether a material change existed would be determined on a summary judgment motion. The motion judge concluded that there was a material change of circumstances.

[3] The appellant submits that the motion judge should not have made the order because there was a genuine issue for trial.

[4] We do not agree. The parties agreed at a case conference before Broad J. that the issue of whether there was a material change of circumstances be determined in advance of the motion change by way of summary judgment.

[5] The appellant further submits that the motion judge erred in his application of the test for material change set out in Gordon and Goertz , [1996] 2 S.C.R. 27.

[6] Again, we disagree.

[7] The respondent has moved, has a new partner and a change in his work schedule. These factors clearly fall within the Gordon and Goertz analysis. They are relevant to the best interest of the children, a matter within the discretion of the motion judge.

[8] The appeal is dismissed with costs in the agreed upon amount of $3,500 all inclusive.

“M.L. Benotto J.A.”

“B.W. Miller J.A.”

“Gary Trotter J.A. ”