Court File and Parties

Court File No.: 126/12 Date: 2014-06-16 Ontario Court of Justice

In the Matter of the Children's Law Reform Act, R.S.O. 1990, c. C. 12

Between:

Michelle L. Broad, Applicant, Self-Represented (formerly Morlog)

— AND —

Craig James Morlog, Respondent, Self-Represented

Heard: June 16, 2014

Before: Justice John Kukurin

Endorsement

Background and Issues

[1] This is a decision on a Motion to Change, brought by the Applicant mother seeking to vary a number of terms of a prior final order made by Justice L. Glenn dated July 16, 2012. This prior order was made on consent of the parties. It provided for joint custody, primary residence of the child JayC, now age 8 years, to the Respondent father, with a number of provisions relating to maternal "access". The Motion to Change also seeks a variation of a maternal child support order to bring the quantum of the child support up to date.

[2] The mother seeks a variation not of custody, but rather of her access. The reason for this is because she claims that she is not receiving the time with her child that she anticipated that the prior order would bring, and that the time she has received is insufficient to foster adequately the mother-child relationship between herself and JayC. Underlying this alleged insufficiency of maternal access time is, according to the mother, a combination of unilateral decision making by the father as to the extracurricular activities of the child, and the mother's inability to attend or ensure the child's attendance at extracurricular events in the child's life. In other words, she claims the father has the child in so many activities that he has hardly any time to spend with his mother.

[3] Another complaint of the mother is that the father is readily able to get all information relating to the child, but she has difficulty obtaining this, and getting it in a timely fashion. She wants the father to keep her advised of such information. She wants the father's exclusive right to decide the child's extracurricular activities to be terminated. She wants the father to stop scheduling extra-curricular activities for the child during her access times. She wants "make-up access" if the child attends extra-curricular activities during her access periods. She also asks for an additional mid-week day (evening and overnight) of access than is provided for in the existing order.

[4] The father opposes any change to his exclusive right to decide the child's extracurricular activities. He acknowledges that the mother should be able to have time with the child but argues that she can foster her relationship with him even if he has extracurricular events during his time with her. All she need do is attend with him as would all parents interested in their children's activities. He opposes an additional mid-week day of maternal access. He argues that he does not set the schedule or timetable of events in the child's extracurricular activities. This is done by the organizers of these activities. He has to live within these and expects that the mother should as well. He points out that when such activities fall within the mother's access times, he goes out of his way to pick up the child, take him to his activity, and then return the child to the mother. Moreover, he argues that the child chooses his activities, enjoys them, and wants to attend and participate with his peers and schoolmates. He maintains that the child excels at almost all he attempts, is precocious in most sports he plays, and notwithstanding his level of participation, he does very well academically. He asks that the order be amended to clarify that events such as fund raisers and year end banquets in the extra-curricular activities in which the child partakes be considered as integral to such activities and subject to his exclusive decision making in terms of the child's participation in these.

Legal Framework

[5] The mother is the motion applicant. The onus is on her to satisfy the court that it ought to make the changes to the existing order that she is seeking. She has to firstly satisfy the threshold set out in the Children's Law Reform Act (CLRA):

Section 29 – Order varying an order. 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.

[6] This is not an easy task. The existing order was one that, at the time it was made, was deemed to be in the best interests of the child. It continues to be so until changed by some more recent court order. That it was in the child's best interests is even more the case since it was an order that was made on consent of both parents. For the mother, who is seeking changes to the order, to be successful, she must satisfy the court not only that changes in circumstances have taken place that warrant changes to the terms of the order. She must show that these changes in circumstances have been "material" changes. Moreover, not any change in circumstance will do, even if it is a material one. The change or changes in circumstances must affect the child's best interests, or must be shown to be likely to affect the child's best interests.

[7] The material change in circumstances threshold in this case is applicable to maternal access variation as this is essentially the main claim in this case that is being contested. The way in which a motion applicant satisfies the court of the existence of the material change in circumstances required to justify a variation is with sworn evidence. That evidence essentially must be factual in nature. In other words, she must show that the "facts" that existed when the order was made and the "facts" that exist now are materially different. Even more critical, she must show that the present factual circumstances are such that the best interests of the child, in the context of her mother-child relationship, are no longer being served by the terms of the existing order.

[8] The mother's evidence is regrettably short on facts that relate to JayC's best interests. The CLRA requires the court dealing with issues of custody or access to make its determinations applying the criterion of the best interests of the child. This is set out specifically in section 24 of the Act:

Section 24 – Merits of application for custody or access. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

[9] Where the best interest test is used, the court is required to consider all of the child's needs and circumstances, but is given a specific list of circumstances that it must take into account to the extent that they apply in the particular case with which it is dealing:

Section 24(2) – Best interests of child. 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) any plans proposed 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.

Analysis of Evidence

[10] The mother's evidence is replete with factual information about maternal access visits that were missed or shortened or interrupted, mostly as a result of extra-curricular involvements of JayC. How these occasions affected the child's best interests is not addressed by the mother in any significant way. For example, she says nothing in her evidence about any the effects on the child, emotionally, or physically or otherwise. She adverts to the father not realizing the "emotional harm" that he causes to the child with his actions. However, there is no actual evidence of any such emotional harm. There is no independent report of any professional that supports the existence of any harm. In fact, the child seems to be thriving developmentally, academically, physically and socially with his present lifestyle.

[11] What does come through in the mother's evidence is her belief that her best interests are not being served by the existing order. More specifically, her interests in maintaining and fostering a healthy and mutually satisfying relationship with her son. While a satisfying and fruitful mother-child relationship is desirable for most children, and certainly would be for this mother and this child, the evidence is scant that it is not so for the child. The dissatisfaction with the status quo appears to be with the mother, not on the part of the child.

[12] It should have been no surprise to the mother that she was expected to provide the evidence to satisfy the best interest of the child test in this variation motion. She was made aware of this in a trial management memo, and specifically referred to section 24 of the CLRA. That she did not review the provisions of section 24 and did not tailor her evidence accordingly leaves her variation claim without a sufficient evidentiary foundation. That she may be a self represented litigant gives her no special allowances or exemptions from the requirements of the law on this Motion to Change.

[13] The court has some sympathy for the mother's circumstances. The order she agreed to two years ago has not resulted in the time with her son that she had anticipated at the time. Some of this has been a result of things that she ought to have foreseen. Some has resulted from factual developments that might not reasonably have been foreseen by her or by anyone. Some are as a result of decisions and actions of the father. Some are a result of her own limitations. An improvident agreement is not, however, a basis for variation of an order dealing with custody of or access to a child.

Approach to Variation

[14] Variations in these areas can be made on consent of the parties. Courts will endorse their approvals of consents of parents to changes in existing custody or access orders subject always to being satisfied that these changes are in the child's best interests. In the present case, the mother has outlined a number of changes she wishes made to the terms of the existing order. To many of these, the father is consenting. To the extent that there is an agreement between the parents on these changes, there should be an order accordingly. There are some changes, however, that the father is opposing. On these contested changes, the court has to decide whether or not they should be made.

[15] Where there is an existing order, and changes are made to its terms, it can become confusing whether a term in the existing order is to remain in force, whether it is to be terminated, whether it is to be superseded or replaced by a new provision, or perhaps a combination of the above. Where multiple changes are contemplated, it is preferable to terminate the prior order and create an entirely new order containing terms that are to be preserved, containing additional terms that are replacements of prior terms, and containing terms that are simply new terms. It is my intention to create a new order in this variation case.

[16] Courts cannot solve all problems that arise in situations of separated parents and their relationships with their children. Court orders cannot take all contingencies into account, nor should they. There will always be situations where the parties will have to sort out their differences on their own, even with the existence of a court order. The hope is that they will sort these out keeping the best interests of their child uppermost.

Extracurricular Activities and Parenting Time

[17] Reasons for decisions, such as these Reasons, are intended to be helpful to the parties, and to provide some guidance in terms of how they will solve problems that may arise. In the present case, some of the mother's complaints are being resolved by inclusion of specific days and times when the child is to be in her care during the year. The previous provision of "one half of all other holidays and special occasions on a mutually agreed schedule" has evidently been too unspecific to be workable. A major maternal complaint has been that the child's extra-curricular activities are often scheduled during times when the child is in her care. The mother lays this at the feet of the father. The father deflects this to the organizers of the activity who set the times and dates for the activity in question. There is no easy solution to this conundrum. The mother is a parent, and in fact, is a custodial parent. It is expected that she will make decisions relating to the child while he is in her care that are in the best interests of the child. This includes decisions on whether he will attend and participate in extracurricular activities during the time he is in her care. If she decides that he will not, this should be respected by the father. He will retain the right to sole decision making concerning the child's extra-curricular activities, but that right does not entitle him to deprive the mother of any part or all of the times she is entitled to have the child in her care. Nor does it empower him to force the mother to bring the child to his scheduled activity during her time with the child, or to threaten contempt proceedings if she fails to do so. To clarify further, extra-curricular activities include activities and events that can reasonably be said to be tied to such activities. For example, fund raisers, banquets, award presentations and similar activities should be considered to be an integral part of the activity in question. The mother's decision on the child's participation in these events is as valid as her decisions on his participation in other facets of the activity in question.

[18] There was evidence tendered of attempts by the father to control the location of the mother's time with the child by restricting it to her home. Also efforts to control with whom the child may have contact during the time he is in his mother's care. There is no basis in the existing order for any such restrictions and no right of the father to insist on any of them. The mother is as much a custodial parent as the father to the child JayC and is so by court order. Neither has any right to impose such restrictions on the other while the child is in the care of the other. Each is expected to make appropriate decisions as a custodial parent while exercising his or her respective custodial rights. These decisions include where the child will be and with whom the child will have contact.

Disposition of Contested Issues

[19] Dealing with contentious changes requested by the mother, and following her numbering and lettering in her Motion to Change, my decision is as follows:

(a) Para 3(c) – Maternal parenting (access) time Thursdays 6 pm to Friday 9 am is denied. There is no best interests justification for this additional time on the evidence filed.

(b) Para 3(d) – Make up time if the child goes go-karting on Sundays while with the mother is denied. The mother decides whether he goes go-karting or not during her time. She lives with the consequences of her decision.

(c) Para 3(f) – is granted but reworded so that it is clear that the mother's time is two non-consecutive weeks throughout the summer months of July and August, not two weeks in each of these months.

(d) Para 3(n) – is denied. The father makes decisions as to what extracurricular activities the child will pursue. He does so knowing that the mother can veto the child's participation in such activities that coincide with times that the child is in her care by virtue of this court order. The mother should not control the father's rights in this respect. She has the right to make decisions about the child's participation in extra-curricular activities only for time she has the child in her care.

(e) Para 3(o) – is denied. The expectation is that the parents will voluntarily reschedule a missed maternal "access" visit. If these are missed in any frequency and not re-scheduled on mutual agreement, perhaps further court proceeding to enforce rights not being honoured may be warranted.

(f) Para 4 – This change is denied. The mother and father are equally custodial parents. Each can seek and obtain information about their child from anyone dealing with their child. This right is statutory. It is also contained in paragraph (4) of the existing order. This wording coincides more closely with the wording in the CLRA statute. While exchange of information between parents about their child is desirable, the mother is seeking to force the father to provide information which she has the same right to obtain as he does. That the mother may have limitations that may impede her obtaining such information is unfortunate but is not sufficient to give her rights as against the father that she is seeking.

(g) Para 10 – The mother seeks an order for mutual exchange of tax return and notice of assessment information for the prior tax year and current year to date information, all by July 1 annually. Currently, the existing financial disclosure obligation rests only on the mother as she is the payor of child support. This claim is denied. The mother's reason for requiring paternal financial disclosure appears to be for her comfort that he is of sufficient means to provide necessities for the child, including housing. There is no evidence that the father's financial means, or any lack thereof, are affecting the child adversely. Nor is the evidence that housing for the child is at risk because of financial circumstances. The mother makes no claim for support from the father. There is no statutory basis for making the order sought by the mother in this regard.

New Order

[20] For the reasons stated above, the order of Justice L. Glenn dated July 16, 2012 is terminated effective June 16, 2014.

[21] This court orders that:

1. Custody

The parties shall have joint custody of the child JayC Gordon Morlog, born January 5, 2005, with the parties sharing joint decision making responsibility concerning the child's non-emergency health care, education and religious upbringing, with the child JayC Gordon Morlog to have his primary residence with the Respondent father.

2. Extracurricular Activities and Expenses

The Respondent father shall be the sole decision maker concerning the child's extracurricular activities, and the Applicant mother shall contribute towards expenses for such activities up to a maximum amount of $500.00 per year.

3. Maternal Parenting Time

The Applicant mother shall have reasonable access to the child JayC Gordon Morlog, born January 5, 2005, on reasonable notice to the Respondent father, on the following terms:

(a) every other weekend from Friday at 6:00 pm until Sunday at 6:00 pm;

(b) every Wednesday from 6:00 pm until Thursday at 9:00 am to school, unless the child doesn't have school, then returned to his father;

(c) reasonable and age appropriate access by letters, telephone and e-mail;

(d) Mother's Day and Father's Day with the relevant parent, from 9:00 am to 6:00 pm notwithstanding any other provisions otherwise;

(e) every summer vacation during the months of July and August, for two non-consecutive weeks, on written notice by the mother to the father by June 1 of the year of such summer week access, as to the particular weeks chosen by the mother;

(f) Easter weekend from Saturday at 6:00 pm to Easter Sunday at 6:00 pm in even numbered years commencing in 2014;

(g) Labour Day weekend in even numbered years from Saturday 6:00 pm to Monday 6:00 pm commencing in 2014;

(h) Family Day, Victoria Day and Thanksgiving Day weekends in odd numbered years from Saturday 6:00 pm to Monday 6:00 pm commencing in 2015;

(i) January 5th being the child's birthday, in even numbered years, from January 4 at 6:00 pm overnight to January 5 at 6:00 pm commencing in 2014;

(j) December 24 at 6:00 pm to December 25 at 6:00 pm in even numbered years, and December 25 at 6:00 pm to December 26 at 6:00 pm in odd numbered years commencing in 2014;

(k) Where applicable, the provisions for dates and times of maternal care of the child in paragraphs 3(c) to 3(j) are in addition to times of maternal care of the child provided in paragraph 3(a);

(l) The father shall have care of the child for the days and times set out in paragraphs 3(f) to 3(j) in the years alternate to the years specified for maternal care of the child in such paragraphs, notwithstanding any other provision herein, and in particular, paragraphs 3(a) and 3(b);

(m) The mother and father shall provide each other with details of any changes in their contact information (address, telephone numbers, e-mail addresses) within 24 hours of such changes;

(n) The mother and father shall each provide to the other advance notice of intention to take the child out of Ontario, together with reasonable details of such trips;

(o) The mother and father shall each be equally responsible for pick-ups and drop offs;

(p) The mother and father shall each advise the other immediately of any emergencies involving the child;

(q) The mother and father shall each be equally entitled to attend any medical, dental or other health related appointments of the child, any school functions and any of the child's extracurricular activities or related events;

(r) The mother shall have such additional care of the child as may be mutually agreed by her and the father at any time.

4. Information and Inquiries

The mother and father, as joint custodial parents of the child, shall have the same right to make inquiries and to be given information as to the health, education and welfare of the child from any other persons or agencies providing services to the child.

5. Parental Conduct

The mother and father shall prefer the best interests of the child to their own and shall encourage the child to have a good relationship with each of them. They will not discuss court proceedings with the child, nor involve the child in adult conflicts, and will not make disparaging or derogatory remarks about each other to or around the child.

6. Relocation

The father shall not change the residence of the child beyond the boundaries of the Municipality of Chatham-Kent without first providing to the mother sixty days written notice of intention to relocate including reasonable details relating to such relocation.

7. Child Support

The Applicant mother, Michelle Broad, shall pay to the Respondent father, Craig Morlog, as support for the child JayC Gordon Morlog, born January 5, 2005, the Child Support Guideline table amount of $300.00 per month on the first day of each month commencing January 1, 2014, based on the Applicant's annual income of $34,200.

Concluding Comments

[22] By way of comment, the inference I make from the evidence and submissions of the parties is that the child has a good relationship with both parents, and this is notwithstanding the complaints by the mother of insufficient time with her son in her care. The child's school and extracurricular commitments and involvements are obviously of great importance to him. The competition is between his time spent in extracurricular activities and his time spent with his mother. Ultimately, she and he will have to find a balance that each can live with. The father does not appear to be actively frustrating the mother-child relationship by decisions he makes. In fact, he seems to be amenable to helping out in some situations where the competition for the child's time creates difficulties for the mother. He has agreed to a number of changes to the existing order that the mother has requested. The new provisions give the mother more control over her time with the child. This is not a change so much as an elucidation of rights she has always had as a joint custodial parent.

[23] My expectation is that the terms of the order contained in paragraphs [20] and [21] of these Reasons will be incorporated by the court office into an order of the court and a formal order will issue in due course and be provided to the parties. As for the child support provisions of this order, they will normally be directed to the Family Responsibility Office with a Support Deduction order. The parties indicated that the previous support order was filed with but not being enforced by FRO. If they wish the same to apply to this new order, they will have to take steps to opt out of FRO enforcement.

[24] In all of the circumstances, my order is silent on the issue of costs of the motion to change.

Released: June 16, 2014

Signed: Justice John Kukurin

Footnote

[1] Although the references in the order are to maternal "access", in the context of a joint custody order, the mother's times with the child are more properly described as maternal parenting time, or maternal care and custody, or secondary residence, than as "access".