COURT FILE NO.: 323/11

DATE: 2012-08-28

Citation: Kavaner v. Jancsurak, 2012 ONCJ 543

ONTARIO COURT OF JUSTICE

RE: TIMOTHY SCOTT KAVANER – Applicant

THERESA VERONA JANCSURAK – Respondent

BEFORE: JUSTICE R. ZISMAN

COUNSEL: Michael Chun, for the Applicant

Rae White, for the Respondent

John Grant, for the child Carter Kavaner

HEARD: August 24, 2012

E N D O R S E M E N T

[1] This is a motion by the applicant (“father”) for primary residence of the child, Carter Kavaner (“Carter”) born November 6, 1999.

BACKGROUND

[2] The parties began a relationship in 1995, subsequently were married on June 22, 1996 and separated in July 2002 and entered into a separation agreement in the same year. There are two children of the marriage, Darian Ryan Kavaner born October 24, 1997 and Carter Timothy Kavaner born November 6, 1999.

[3] The separation agreement provided that the parties have joint custody of the children and that the children reside primarily with the respondent (“mother’) and access to the father as agreed upon. Initially both parties lived in fairly close proximity and from 2005 to 2008, the children would spend 2 to 3 days each week with the father at his home.

[4] In 2008, the father obtained an employment opportunity that required him to move out of the jurisdiction. Since 2008, the father and his spouse have resided in Spencerville, Ontario which is a small rural community located south of Ottawa and about an hour from Kingston.

[5] The parties have managed to arrange regular access and holiday access, despite the distance, in accordance with the children’s wishes and their activity schedules. The mother alleges that access only occurs about every 6 to 8 weeks whereas the father alleges it occurs about once a month. It is not disputed that the children spend about 4 to 6 weeks in the summer with the father.

[6] It is further not disputed that the children are closely bonded to their mother, their father and his spouse and that they have a close relationship with each other.

[7] The father commenced this application to vary the terms of the separation agreement on the basis that both children had expressed to him that they wished to change their primary residence and live with him.

[8] The father also deposed that he was also concerned about some allegations made by the children that involved the mother’s common law spouse.

[9] On consent the Office of the Children's Lawyer was appointed. Since the commencement of this proceeding, Darian has indicated that she wishes to remain in the home of her mother to complete high school with her friends. Therefore the father is only pursuing a change in residence regarding Carter.

[10] The father relies on his affidavit sworn August 13, 2012 and the mother relies on her affidavit sworn August 20, 2012 and the affidavit of her spouse, John Allen sworn August 20, 2012. Attached to the father’s affidavit is a letter from his cousin, to whom it is alleged the children made allegations about the mother’s partner and their relationship. The mother attached to her affidavit two very forceful letters from friends about the background of the parties’ relationship and urging the court to permit Carter to remain with his mother.

[11] I advised both counsel that I am not prepared to put any weight on these letters as although they contain relevant information, they are highly prejudicial to the opposing party. I am concerned that the persons writing these letters have also attempted to use their professional positions to bolster their statements. If the contents of these letters were important for the court to consider, counsel should have prepared proper affidavits that were duly sworn. I adopt the reasoning of Justice Vogelsang in Lisanti v. Lisanti[^1] that there is a disturbing tendency for counsel to attempt to incorporate, in motion materials, statements allegedly made by parties or other sources without their inclusion in an affidavit. The Family Law Rules require motions to proceed by way of sworn affidavits.

POSITION OF THE MOTHER

[12] It is the position of the mother that there is no reason to change Carter’s primary residence and that he is an immature 12 year old who does not fully understand the consequences of moving away from his mother, his sister and his community.

[13] It is further submitted that the father has not met the onus on him to vary the outstanding status quo and that there has not been a material change in circumstance that would require such a drastic move on a temporary motion.

POISITON OF THE FATHER

[14] It is the position of the father that Carter has been requesting that he be allowed to live with him for almost the last three years. It is submitted that Carter has been clear and consistent in his wish to live with his father and that he is a mature young adolescent who understands the consequences of such a move.

[15] It is acknowledged that such a move would change a long standing status quo and that it would require the siblings to be separated. However, the father urges the court to give Carter a voice in these proceedings and respect his wishes.

POSTION OF THE OFFICE OF THE CHILDREN’S LAWYER

[16] John Grant was appointed as counsel to represent both children. It is his position that Carter has been consistent and clear in his position and that he is a mature young adolescent who understands the consequences of moving to live with his father.

APPLICABLE LEGAL PRINCIPLES

[17] In Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, 19 R.F.L. (4th) 177 (S.C.C.), Justice McLachlin summarizes the law as follows at para. 49:

1. The parent applying for a material change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.

3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.

5. Each case turns on its own unique circumstances. The only issue is the best interests of the child in the particular circumstances of the case.

6. The focus is on the best interests of the child, not on the interests and rights of the parents.

[18] While the test set out by Justice McLachlin was under the under the Divorce Act and with respect to a mobility issue, it has equal application to an analysis under the Children’s Law Reform Act. Section 29 of the Children’s Law Reform Act provides that:

A court shall not make an order under this part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

[19] In considering the best interests of the child, the criteria set out in section 24 (2) of the Children's Law Reform Act are applicable and provide that:

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

[20] Therefore on this motion, it is clear that the onus is on the father to establish that there has been a material change in circumstances and if so, the court must then determine if a change in the residence of Carter would be in his best interests.

ANALYSIS

1. Are the wishes of a child sufficient to constitute a material change of circumstances?

[21] The father deposes that Carter told him that he wanted to change his primary residence to live with him in the summer of 2010 when he was 10 years old. The father told Carter that he had to wait another year to ensure that he was serious about this request. Carter again broached the subject in October 2010 and again the father told Carter to wait and seriously consider his decision. Carter told the father that he had made an agreement with his mother that he could move after he completed Grade 7. As a result the father contacted the mother to arrange a move in June of 2011 and when the mother made it clear that she was not in agreement he began this court proceeding.

[22] The mother does not deny that Carter has told her he wishes to live primarily with his father. However, she does deny that she was aware of his wish since October 2010 and denies that she ever agreed he could move upon completion of Grade 7, that is, this summer.

[23] The mother deposes that Carter has expressed this wish to move after spending his summer vacation with his father and that he believes living with his father would be fun. She deposes that Carter does not have the maturity to make such an important decision and that he does not understand the consequence of such a drastic move. She is prepared to accommodate Carter’s wish to spend more time with his father by permitting Carter to spend 3 out of 4 weekends with his father.

[24] Mr. Grant, counsel for Carter, in his submissions advised the court of the contents of his interviews with both Carter and Darian. As neither counsel objected to counsel providing this evidence I am prepared to consider this evidence. He advised that he had interviewed Carter in June and July that is, prior to him spending his summer vacation with his father. Carter told him that he was aware that he would be leaving his friends and would have to make new friends if he lived with his father. It was also clear that Carter and Darian had spoken about his wish to live with his father and that it would mean he would be separated from his sister. But he told counsel that he could contact Darian by texting and through Facebook.

[25] Mr. Grant acknowledged the concerns raised by the mother that he had only interviewed Carter two times and he had not been able to obtain information from the school. However, Mr. Grant was very firm in his view that Carter’s views and preferences were clear, consistent and well thought out. He did not agree with the mother that Carter was immature or that he was not aware of the consequences of his wish to live with his father.

[26] I have also considered that there is no evidence that the father has attempted to influence Carter’s wish to live with him.

[27] Based on the evidence I accept on this motion, I find that Carter has expressed a clear, consistent and independent desire to live with his father and that he has the maturity to understand the consequences of his wishes. I therefore find that such wishes do constitute a material change in circumstance that affects his best interests.

[28] This agreement was entered into when Carter was only 2 years old and so he had no role in deciding the parenting arrangements that would govern his life. Now that he is an adolescent, a court should not deny him the right to express his own views about his own living arrangements. If the court adopted the mother’s position namely, that Carter’s wishes do not constitute a material change in circumstances, the court would not examine his desire to move to live with his father on its merits.

[29] I have also considered that this is only a temporary motion but the legal test whether on a temporary of final motion for a change is the same. I am satisfied that the evidence would not be any different regarding Carter’s wishes at a trial. I am not prepared to deprive a mature adolescent on the right to have his voice heard when the court must decide what parenting arrangements are in his best interests.

2. What parenting arrangements are in Carter’s best interests?

[30] Having found that the father has met the onus of proving that there had been a material change in circumstances that affect Carter’s best interests, the court must now make a fresh inquiry into what is in Carter’s best interests.

[31] I must also consider that this is only a temporary motion and that generally courts are reluctant to disturb a status quo that has been in place for many years unless there is a compelling reason to do so. See Grant v. Turgeon 2000 22565 (ON SC), [2000] O.J. No. 970 (S.C.J.) paragraph 15 and cases cited therein.

[32] The mother maintains that it is in Carter’s best interests that the current status quo should continue. She has been both children’s primary caregiver since the separation. As a result both children are extremely closely bonded to her. The children are close to each other and spend a great deal of time together. As the mother has lived with John Allen for the last 10 years it is the mother’s position that the children they have a close relationship to him and he has acted as a father figure to them.

[33] The mother submits that Carter has close ties to his community. He is involved in a variety of sport activities and he has many friends. His maternal family lives close by and they spend a fair amount of time with Carter.

[34] Carter goes to a local Catholic school and is entering Grade 8. It is submitted that it is important for the mother that Carter be raised in the Catholic faith and that the next school year is important as he will take the seminal step of Confirmation. If Carter is not confirmed then he may not be able to attend a Catholic high school. The father’s plan is to enroll Carter in a local public school and therefore he would not be able to take the steps to be confirmed through the school. However, in submissions mother’s counsel clarified that Carter can be confirmed through the church and even if he is not confirmed he could attend the public stream in a Catholic high school. The mother is concerned that the father will not arrange for Carter to be confirmed as he was not committed to Carter having a religious education and he is not supportive of Carter being raised in the Catholic faith.

[35] The mother also deposed that Carter has a learning disability and has considerable difficulty with math. The mother deposes that it has taken her several years to arrange for Carter to be assessed and that she expects that he will be tested this fall and then if recommended, the school will arrange an individualized education plan (“IEP”) for him. She is concerned that a new school will not necessarily arrange the testing based on his current school’s recommendation and that he would have to again be put on a waiting list. The father deposes that he has contacted the local school that IEP’s are available at the school if necessary and that he will assist him with any school difficulties.

[36] As neither counsel had provided the court with a copy of Carter’s report card, I requested it be submitted. On consent, the mother provided Carter’s report card for Grade 7. It was conceded by the mother that Carter struggled with his school work in Grade 7. His report card does not mention that there is any concern that Carter has a learning disability or that an assessment is recommended or planned. However, the report does indicate that his homework was often not done, that he was absent 17 days and late 42 times. Carter was encouraged to monitor his absences and punctuality, use his class time to complete his work and keep distractions to a minimum. His average was 70.

[37] The mother also raised concerns about the father’s lack of rules in his home and that the father does not support the need for education and therefore she felt that Carter’s educational needs would not be properly supervised if he lived with his father. The father on the other hand raised concerns that Carter was being allowed to stay up very late on school nights and that he is aware of this as Carter was sending him texts late at night. The father submitted that this has impacted on Carter being alert or on time for school.

[38] It is obvious from reviewing Carter’s report card that he needs to be more closely supervised to ensure his educational needs are met. But I find both parents are aware of the school’s concerns and can meet Carter’s needs.

[39] The mother further submits that she has been the parent that has always been responsible for arranging for Carter’s medical and dental needs and that he has a specialist appointment to deal with a bladder issue this fall.

[40] Having reviewed the affidavits filed and despite there being no cross-examinations, I find that Carter has a close and loving relationship with both parents. Both parents are able and willing to meet all of Carter’s physical and educational needs. I also find that both parents have appropriate plans of care in place and can provide Carter with all the necessary amenities.

[41] Therefore, in considering Carter’s best interests I must weigh whether or not the court should put emphasis on maintaining the current stable living arrangements or whether or not the court should put emphasis on Carter’s strong views and preferences to reside with his father despite all of the changes that will entail.

[42] If Carter remains living in the primary care of his mother that will ensure that Carter continues to live with his sister, continues to live in the same community, continues to attend the same school and continues to enjoy his current activities with his friends. Leaving Carter in his mother’s primary care would also ensure that he will be confirmed and able to continue in his Catholic education. I recognize that no parent is perfect and no living arrangement is perfect, so that despite some problems, especially with his schooling, I find that there is ample evidence to find that his mother will ensure that all of his educational needs are met.

[43] With respect to which parent is best able to meet Carter’s emotional needs, although I have some concerns about the mother’s ability to meet those needs based on some concerning behaviour by the mother’s partner, I do not find that at this stage of the proceedings there is insufficient evidence to make a finding on that issue.

[44] I do not know the effect on Carter if this court does not abide by his wish to live with his father and commence this school year in his father’s community. But he will be 13 years old in a few months and I find that he has been requesting the right to live in the primary care of his father for almost three years. I believe that I can draw the reasonable inference that he will feel that no one listens to him or respects his wishes.

[45] I have also considered that if the court does not grant Carter’s desire to live with his father at this motion then a trial cannot realistically take place until the winter or possibly even the early spring. If the trial judge finds that Carter should reside in his father’s care, then it is unlikely that the court would permit Carter to move until the end of that school year at which time he would be entering grade 9. Based on the affidavit evidence and the support of the Office of the Children's Lawyer, it is my view that it is quite likely that after a trial, Carter would be permitted to live in the primary care of his father.

[46] I have also considered that if Carter is permitted to move at this stage of the proceedings, he would start school in grade 8 at the local school that accommodates grades 7 to 12. This would allow him time to establish friendships prior to the start of high school which will make the transition to high school easier. Also, if Carter changes his mind about living with his father, the father has already shown by his position regarding Darian that he will respect those wishes and Carter would be able to return to his previous school before he commences high school. In my view such a move would be easier then after he has already commenced high school. As this is a temporary order the court will also be able to schedule a further settlement conference prior to trial to monitor how Carter has adjusted to the move and whether or not it is still his desire to continue to reside with his father.

[47] Counsel for the father has submitted that the court should respect Carter’s wishes. He has drawn the court’s attention to the very strong statements about the court’s responsibility to respect the views of a mature adolescent as expressed by Justice Abella, speaking for the majority of the court in the case of A.C. v. Manitoba (Director of Child and Family Services)[^2]. Although the case dealt with the right of a child under 16 years of age to refuse medical treatment in the context of the child protection proceeding, I agree that the views expressed are relevant in this proceeding. At paragraphs 87 to 88 and 92 to 93 Justice Abella stated as follows:

[87]…In some cases, courts will inevitably be so convinced of a child’s maturity that the principles of welfare and autonomy will collapse together and the child’s wishes will become the controlling factor. If, after a careful and sophisticated analysis of the young person’s ability to exercise mature, independent judgment, the court is persuaded that the necessary level of maturity exists, it seem to me necessarily to follow that the adolescent’s views ought to be represented….

[88] As L’Heureux-Dubé J. said in Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, “courts must be directed to create or support the conditions which are most conducive to the flourishing of the child” (p. 65 (emphasis added))… When applied to adolescents, therefore, the “best interests” standard must be interpreted in a way that reflects and addresses an adolescent’s evolving capacities for autonomous decision making. It is not only an option for the court to treat the child’s views as an increasingly determinative factor as his or her maturity increases, it is, by definition, in a child’s best interests to respect and promote his or her autonomy to the extent that his or her maturity dictates…

[92] The statutory factors reflect decades of careful study into children’s needs and how the law can best meet them. We have come, with time, to understand the significance of so many relevant considerations which had been previously hidden behind formulaic solutions like “the tender years doctrine”. With our evolving understanding has come the recognition that the quality of decision making about a child is enhanced by input from that child. The extent to which that input affects the “best interests” assessment is as variable as the child’s circumstances, but one thing that can be said with certainty is that the input becomes increasingly determinative as the child matures…

[93] Such a robust conception of the “best interests of the child” standard is also consistent with international instruments to which Canada is a signatory…the child’s own input will inform the content of the “best interests” standard, with the weight accorded to these views increasing in relation to the child’s developing maturity…

[48] I find that in the particular circumstances of this case, that Carter’s views should be respected and that he should be permitted to move his primary residence and reside with his father. As the parties have been able to make arrangements for access over the years, I do not intend to make a detailed order for access or for the parties to accommodate contact between their children but I will make some specific orders to deal with some of the issues raised by the mother to ensure the Carter’s religious and medical needs are met.

[49] The applicant’s motion is therefore granted on the following terms:

1. The parties shall continue to have joint custody of Darian Ryan Kavaner born October 24, 1997 and Carter Timothy Kavaner born November 6, 1999 with primary residence of Carter to be with the applicant and the primary residence of Darian to be with the respondent.

2. The applicant and respondent shall have liberal and generous access on reasonable notice to each other including but not limited to:

a. physical access to the children shall be as the parties may agree, at a minimum of once a month, having regard to the children’s preferences, school schedule and extracurricular activities.

b. generous telephone access and access through all forms of social media such as email, text, Facebook and Skype.

3. The applicant and respondent shall make immediate arrangements for all of Carter’s school records and any recommendations for educational testing to be transferred to his new school. The applicant shall keep the respondent advised about Carter’s school progress and any problems or difficulties that may arise.

4. The applicant shall arrange for any steps necessary to ensure that Carter is confirmed and keep the respondent advised of these steps.

5. The applicant shall ensure that Carter attends the specialist medical appointment arranged by the respondent or that he makes immediate arrangements for another appointment with a specialist in his community.

6. I will review this order on December 7, 2012 at 10:30 a.m. If this date is not convenient for counsel they should contact the judicial secretary to arrange another date.

7. Pending review of this order, I am requesting that counsel for Carter arrange to meet with him and contact the school authorities so the court and the parties can be provided with an up to date report about Carter’s adjustment to his new school and his views and preferences regarding his living arrangements.

8. Neither counsel addressed in their oral submissions the changes in the child support arrangements as a result of the change in the residence of the children. If counsel for the parties are unable to resolve this issue, a further court attendance either before myself or the case management judge should be arranged. If the issue is resolved, counsel can submit a Form 14B motion.

9. If the applicant, as the successful party on this motion, is seeking costs, he shall file brief written submissions on the issue of costs with a Bill of Costs attached, within 14 days of the release of this decision. Thereafter, within 14 days, the Respondent shall file her reply. No further submissions shall be filed with the court without leave of the court.

Zisman J.

DATE: August 28, 2012

[^1]: 1990 4229 (ON CJ), [1990] O.J. No. 3092 (Ont. Prov. Crt. – Fam. Div.)

[^2]: 2009 SCC 30, [2009] 2 S.C.R.181