Court File and Parties

Ontario Court of Justice

Date: 2013-07-16

Court File No.: Goderich 114/2007

Between:

Shelley Danielle Harris Applicant

— And —

Ryan Crawford Respondent

Before: Justice Brophy

Heard on: 4 June 2013

Reasons for Judgment released on: 16 July 2013

Counsel:

• Sara C. Wisking, counsel for the Applicant
• Ryan Crawford, on his own behalf

BROPHY J.:

INTRODUCTION

[1] This is a Motion to Change brought by the Respondent seeking to change the Order of Justice MacKenzie made on July 15, 2011 as follows:

(a) he wants the court to order joint custody

(b) he wants a revision of the access arrangements to increase access, and

(c) he wants the court to reconsider the cost order of January 25, 2012 made against him by Justice MacKenzie.

[2] The Applicant responds by bringing a separate Motion for a Summary Judgment dismissing the Respondent's Motion to Change.

BACKGROUND

[3] The parties are the parents of the child Cohen Daniel Harris, born April 3, 2007. They separated prior to the child's birth in the fall of 2006 and have been in litigation with respect to custody and access since September 2007.

[4] It is fair to say that this is a high conflict case. There were a number of unsuccessful motions brought by the Respondent and twelve attendances were necessary to complete the Trial Management Conference, with costs being ordered against Mr. Crawford in several instances related to those conferences. The trial began in November 2010 and took place over 3 days concluding in April 2011. Judgment was rendered on July 15, 2011. Custody was granted to the Applicant and a detailed Order was made setting out a very specific access plan.

[5] On January 25, 2012 Justice MacKenzie made an order with respect to costs of the proceedings. After careful review of the facts he made a cost award in favour of the Applicant on a full indemnity basis in the amount of $26,291.82 payable by the Respondent.

[6] The Respondent did not immediately bring any appeals. However, on March 6, 2012 he sought leave to appeal both the substantive decision of July 15, 2011, and the costs decision of January 25, 2012. The Motions for leave to appeal were dismissed by Justice Grace of the Superior Court of Justice on October 1, 2012 and Justice Grace awarded a further $5,250.00 in costs against the Respondent, although not on a full indemnity basis. It is noteworthy that Justice Grace made the comment in his reasons that it appeared that the Respondent was not motivated to appeal the substantive Order until the costs Order was made, with the implication being that it was the money that caused Mr. Crawford to act and not necessarily the custody and access decision.

CONTINUING DISPUTES

[7] Difficulties continued after the trial: there have been disputes over travel consents, requiring a number of Motions to be brought, the Respondent brought a Contempt Motion in the fall of 2012 that foundered as a result of service problems, resulting in the Respondent eventually not proceeding, and there is now this Motion to Change.

[8] The Respondent has also written privately to Justice Grace after he rendered his decision. Justice Grace immediately returned that material with an admonishment that it was improper to contact judges outside the court room, with a copy of that letter going to counsel for the Applicant.

[9] In addition the Respondent reported counsel for the Applicant to the Law Society of Upper Canada. After a review of the material filed the Law Society rejected the complaint as being without any basis.

[10] The Respondent also objected to the Applicant seeking the assistance of the Family Responsibility Office in collecting child support.

[11] Finally, the Respondent has been charged with criminal harassment of the Applicant and her counsel.

ANALYSIS

[12] This is a Motion to Change. There is no need for a trial of an issue or for viva voce evidence. The parties have made comprehensive submissions based upon the written record.

[13] The Applicant responds to the Motion to Change by seeking a Summary Judgment. This Ruling is framed as a final response and in that sense addresses the procedural request that the matter be dealt with summarily. It is an interesting question as to whether a claim like this lends itself to a Motion for Summary. It is easy to imagine an extreme set of facts that would support a Motion for Summary Judgement. In this case it is not necessary to make that decision because the Motion to Change will conclude with this Ruling.

[14] As noted – there are three issues. Joint custody, access and the old costs Order. The request for joint custody and the costs argument can be disposed of quickly.

Joint Custody Claim

[15] In argument on June 4, 2013, the Respondent withdrew his claim for joint custody stating that because he was currently before the criminal courts charged with criminal harassment of the Applicant and her counsel, it is not reasonable to think that, at this time, he could obtain a joint custody order. As this claim has been withdrawn or (more properly put) not pressed by the Respondent, that aspect of this Motion to Change is dismissed. It is noted however that this concession was not made prior to the argument, and as a result the Applicant had to be prepared respond to that claim.

[16] This is an unfortunate example of the Respondent not receiving the benefit of legal advice. There is a cost consequence to this late decision. It would have been much better if after thinking about it he had not brought the claim for custody in the first instance only to abandon it. A lawyer may have steered him away from those shoals.

[17] The Applicant had to respond and has undergone expense to do so. This no doubt will form part of her costs submissions.

Costs Issue

[18] Dealing with the request to review the cost order of January 25, 2012, it is patently clear that this court does not have jurisdiction to deal with the matter. First, this is not a court of appeal and does not sit in review of decisions made by Justices of this court. Second, the matter has been litigated in front of the Superior Court of Justice, which is a proper appellate court in matters of this nature, and a decision has been rendered. That decision was not appealed. The matter is now res judicata. It is not open for review. As a result that aspect of the Motion to Change is dismissed.

[19] It is again unfortunate that the Applicant did not take advice in this matter as this will also play a role in the costs question.

Access

[20] The only issue that remains is whether or not access should be varied.

[21] The statutory authority for the request is under Section 29 of the Children's Law Reform Act. That section states:

29. 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. R.S.O. 1990, c. C.12, s. 29

[22] The first question is whether or not that there has been a material change in circumstances. If it is determined that there has been a material change in circumstances than the question arises as to what is in the best interests of the child. It is noted that the court needs to look at the best interest question when deciding whether there has been a material change in circumstances. In that sense the best interest test informs the analysis related to the material change in circumstances. See M. (B.P.) v M. (B.L.D.E.), [1992] O.J. No. 2299.

[23] The leading case is Gordon v Goertz, [1996] 2 S.C.R. 27. That case stands for the principle that a change in a custody and access order must meet the threshold requirement of demonstrating that there has been a material change in circumstances affecting the child. For the threshold to the met, the court must be satisfied of the change in the condition, means, needs or circumstances of the child or in the ability of the parents to meet the needs of the child, which materially affects the child. Further, this change in circumstances must be something that either was not foreseen or could not have been reasonably contemplated by the judge who made the initial order. This case also emphasizes that an application to vary custody or access cannot serve as an indirect route of appeal from the initial order.

[24] One of the arguments made by Respondent to support the idea that there has been a material change in circumstances is that he has now retired from the military. However the Applicant notes that in front of Justice MacKenzie at the trial it was submitted by the Respondent that it was his plan to retire from the military. Therefore Justice MacKenzie had the benefit of that information when he made his Order.

[25] The court appreciates that in paragraphs 10 and 13 of the Order of July 15, 2012 Justice MacKenzie made reference to the Respondent and his military employment, but this does not take away from the fact that the plan advanced by the Respondent was that he would leave the military and move back to Clinton.

[26] There are no other substantive facts advanced by the Respondent that establish a material change in circumstances.

[27] It is recognized that in the said Order Justice MacKenzie provided in a number of paragraphs that access could be adjusted or increased if the parties could agree. Unfortunately because of the way in which the Respondent has conducted himself the Applicant has never felt that she could have any meaningful discussions about adjustments in access. As developed later in these reasons, that is completely rational. And in any event the lack of agreement does not in itself form the basis for a material change in circumstances. There was never any promise that there would be any agreements.

[28] Justice MacKenzie made a very detailed custody and access order providing generous terms of access, but nonetheless setting out a very distinct and clear set of rules. This no doubt was done in the knowledge that the parties would have great difficulty in working cooperatively and needed a structure that would facilitate access. He was prescient in that regard.

[29] It is important to note that in argument the Respondent acknowledged that he was receiving the basic generous access provided for in the Order of Justice MacKenzie.

[30] The Respondent also submits that the Applicant had said during the trial that she would be content with sharing the March break. A similar argument is made with respect to midweek access. The Applicant in front of me acknowledges that was said, but notes that Justice MacKenzie was aware of that, but did not make it part of his order, notwithstanding the very extensive terms of access that were granted.

[31] From the Applicant's perspective, given what she perceives to be the aggressive and hostile actions of the Respondent, she has decided to not engage with the Respondent and wants to have as little to do with him as possible. From my reading of the record this is not an unreasonable position for her to take.

[32] It is important to understand that the emotional wellbeing of the Applicant is at stake here. She worries about the costs she has had to pay to have legal counsel represent her. The financial burden no doubt will have an impact upon her relationship with her husband. She is unable to have an ordinary friendly conversation with the father of her oldest child. She is constantly stressed and worried about everything to do with Cohen and the Respondent. It has even gotten to the stage that the police laid criminal harassment charges against the Respondent. She has expressed in her material that she fears that the Respondent has adopted a strategy to wear her down emotionally and financially so that she will give up.

[33] This apprehension produced the following vignette. At the conclusion of the argument on June 4, 2013, there was some discussion initiated by the court about summer access for 2013 and whether or not the parties could agree on any changes. Sadly it quickly became apparent that the parties simply were not able to compromise and the Applicant was in tears. In my view this was a result brought about by the relentless attempts by the Respondent to exert power and control over the Applicant.

[34] There are many subsidiary issues in this case that continue to be raised with respect to child support and the non-payment of costs. The court is told that the cost order made by Justice Grace has been for the most part satisfied and that the Respondent is bending to the fact that he is going to have to pay the costs order of January 25, 2012. He also has told the court that he has made significant efforts to pay his child support arrears, currently approximately $3,000.00, and that the ongoing payments are current. For the most part these are irrelevant considerations with respect to access, but they are of interest in understanding the depth of the conflict between the parties.

[35] The court is concerned that any expansion of access will generate further disputes and then a request for a further expansion of access. In all the circumstances it is reasonable to fear that the extensive access that the Respondent seeks is more for the purpose of undermining the Applicant's role as the custodial parent, rather than for any proper purpose. Moreover it is unclear as to how the Respondent could possibly use all of the access that he is seeking given an ordinary work schedule or educational program.

[36] In the Order of Justice MacKenzie dated July 15, 2011 paragraph 11 states that that summer access will be open for variation upon the child attaining the age of seven years with respect to the question of whether or not that summer access should occur in two separate one-week periods or in two consecutive weeks. The import of this paragraph is the Justice MacKenzie was very specifically concerned that given the child's age at the time of the Order summer access for two consecutive weeks would be inappropriate. He therefore set up a point in time when it could be reassessed. And so that will happen in due course.

[37] On balance, it seems to this court that the Respondent has not made out a material change in circumstances that affects or is likely to affect the best interests of the child. In any event given the level of animosity between the parties, changing the access arrangements at this point in time would be unwise as it would upset the otherwise successful residential setting of the child and would not be in his best interests. There is no evidence before me that suggests that Cohen is not doing well. The child is on a stable track at present, and that should continue. There are rules of access in place that allow him to see his father and they are apparently being followed. The parties should continue to work to that schedule and allow the child to mature and then review the question of summer access when the child attains the age of seven years.

[38] The request to vary access is dismissed.

CONCLUSION

[39] In sum, the Motion to Change is dismissed for the reasons stated above.

[40] The court urges the parties to make the best of the hand, they have been dealt and to stop this endless conflict. It will exhaust them – financially and emotionally. Their energies should be dedicated to meeting the needs of their families.

[41] The Respondent should take advice about what can happen if a toxic access situation continues. In some cases access has been struck, with the prime imperative of the court being to ensure that the residential home of the child is preserved and if the only way to do that is to eliminate access then that is what can happen.

[42] Part of the Applicant's motion seeks an order for security for costs. That request is moot because the Motion to Change is being dismissed in whole. Nevertheless, it remains a live issue, and no doubt will be advanced again if there is any further litigation, and the court will at that time pay full attention to that argument.

COSTS

[43] With respect to costs concerning this Motion to Change, the Applicant shall provide me with her cost submissions not exceeding 4 pages on or before 15 August 2013. Respondent shall then reply in writing not exceeding 4 pages on or before 31 August 2013. The Applicant shall have a right of response in writing not exceeding 2 pages on or before 15 September 2013.

Released: 16 July 2013

Signed: "Justice Brophy"