Court File and Parties

Court File No.: Toronto D48208/09 Date: 2015-03-27 Ontario Court of Justice

Between:

N.P. Applicant

— AND —

H.M. Respondent

Before: Justice Debra A. Paulseth

Heard: February 23 – 26, 2015

Reasons for Judgment released: March 27, 2015

N.P. ................................................................................................................ on His own behalf

H.M. ............................................................................................................... on Her own behalf

PAULSETH J.:

1. Background

[1] This hearing is a Motion to Change a final order made with the consent of the parties by this court on May 4, 2012. The consent order followed three years of court proceedings. The parties had a brief relationship from 2006 until 2008. They have one son, J., who was born on […], 2007.

[2] On August 13, 2013, the Respondent/Mother (hereafter referred to as RM or mother) filed this Motion to Change seeking sole custody. Within this Motion to Change, RM also brought two urgent motions. Applicant/Father (AF or father) responded with a Motion to Change also seeking sole custody.

[3] AF was born on […], 1977 and the RM was born on […], 1986. They lived together from August 2007 until September, 2008. After the separation, the parents apparently shared the child's time, using both their homes and the daycare as exchange points until the spring of 2009.

[4] On June 19, 2009, AF filed an Application seeking, among other items of relief, sole custody of the child. Both parties retained counsel and worked with a mediator until a Consent was filed with the court on May 4, 2012. The important features of that order were:

• Parents were working with a parenting coordinator/mediator;
• Parents negotiated a comprehensive shared parenting plan;
• There was a weekly schedule of Monday and Tuesday with one parent and Wednesday and Thursday with the other parent; alternate weekends from Friday with each parent;
• Father's gross income was accepted at $80,973.89. For Child Support Guideline (CSG) purposes, his income was stipulated at $41,600 and the guideline amount payable was $370 per month commencing May 1, 2012.

[5] On August 13, 2013, RM launched a Motion to Change, seeking sole custody and liberal access to the AF. RM pled that the child had been spending more time at AF's home after mother was laid off her work in June 2012. Her attempts to negotiate with father a return to the original schedule had failed.

[6] On September 22, 2013, AF filed his Response to the Motion to Change and sought sole custody.

2. Legal Proceedings during this Motion to Change

[7] On September 10, 2013, RM did not take the child to the school where he was enrolled, I[…] Road Crescent Public School. In July, 2013, RM had asked the father if the child could attend the same school as her younger child which was a short distance away. Father would not agree. Mother then kept the child home from school. J. had completed Senior Kindergarten at that school and was enrolled for Grade 1. Justice Brownstone heard this Motion on an urgent basis and ordered the child to attend I[…] Road public school. He also ordered the child to spend one week with each parent on an alternating basis until the overarching Motion to Change could be heard.

[8] On November 29, 2013, Justice Waldman referred this matter to the Office of the Children's Lawyer (OCL).

[9] In May, 2014, the Investigation and Report of the OCL, pursuant to section 112 of the Courts of Justice Act, was made available to the parties. The report recommended joint custody with parallel decision-making: father for school and mother for medical.

[10] The issue of the local school arose again. A second Motion was heard in August, 2014 and Justice Waldman issued a 4 page ruling, deciding that the child should remain at the same school. Justice Waldman referred to this as a "high conflict case".

[11] On August 29, 2014, RM brought an urgent Motion in front of Justice Sherr regarding daycare. As the matter continued to dissolve in conflict at every point, including another urgent motion by Mother on December 19, 2014, trial days were assigned.

3. Positions of the Parties

[12] RM is seeking a sole custody order with primary residence at her home, alternate weekends from Friday to Monday with AF, alternating Thursday nights with RF, sharing of statutory and religious holidays, and two clear weeks' vacation in the summers. Where possible, RM would like all pick up and drop offs to be at the school and she would like the child to continue in the same before and after-school babysitting arrangement.

[13] AF is seeking sole custody with access to Mother on Tuesdays after school until 7:00 pm and alternate weekends from Friday after school until Sunday at 6 pm., two weeks' summer vacation for each parent, December 19 th (St Nicholas Day) to mother and January 20 (St. John Day) to father, with all pick-ups and drop offs to be from father's home.

4. The Legal Framework for a Motion to Change

[14] Section 29 of the Children's Law Reform Act sets out the test to change a custody or access order. It reads as follows:

Order varying an order

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.

[15] The Supreme Court of Canada decision in Gordon v. Goertz (1996), 19 R.F.L. (4th) 177 S.C.C. sets out a two-stage process for the court to conduct:

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

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

[16] In Gordon (Paragraphs 10-16), the court discusses what evidence is required for the moving party to meet the threshold condition of establishing a material change in circumstances. The court says that the question is whether the previous order might have been different had the circumstances that now existed prevailed earlier. On an application to vary a custody order, the judge must be satisfied:

a) Of a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child;

b) Which materially affects the child; and

c) Which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order

[17] The onus of establishing the material change is on the person seeking the change. If the material change cannot be established, the motion is to be dismissed. The change must have altered the child's needs or the ability of the parent to meet those needs. The last order is presumed to be correct. See: Wiegers v. Gray, 2008 SKCA 7, 2008 CarswellSask 10 (C.A.).

[18] Gordon states that the requirement of a material change in the situation of a child means that an application to vary custody cannot serve as an indirect route of an appeal from the original custody order (par. 11).

[19] It is normally in the interests of children to continue and to encourage their relationships with both parents following the separation of their parents. The ultimate goal is to establish, maintain and promote relationships which are of significance and support for a child. See: Young v. Young, [1993] 4 S.C.R. 3. Children generally benefit from contact with both parents. See: Gordon v. Goertz, at paragraph 24.

[20] Section 24 of the Children's Law Reform Act sets out the following criteria to determine a child's best interests:

(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.

Past conduct

(3) A person's past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent. 2006, c. 1, s. 3 (1).

Violence and abuse

(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person's household; or

(d) any child. 2006, c. 1, s. 3 (1).

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).

[21] Both parents are agreed that joint custody has not worked in this case. Generally, the courts have looked to joint custody in separated families as an appropriate remedy when the parents have some measure of cooperative communication.

[22] The Ontario Court of Appeal in Kaplanis v Kaplanis (2005), OJ No 275 has set out the following principles in determining whether a joint custody order is appropriate:

• There must be evidence of historical and appropriate communication between the parents;
• It should not be ordered in the hope that it will improve communication;
• Just because both parents are fit does not mean that joint custody should be ordered;
• The fact that one parent professes an inability to communicate does not preclude an order for joint custody;
• No matter how detailed the order, there will always be gaps and unexpected situations requiring solutions on an ongoing basis; and
• The younger the child, the more important communication is

[23] I would add these considerations:

• Courts do not expect a standard of perfection, but whether there is a reasonable measure of cooperation and communication in place sufficient to predict that the child's interests will always be paramount. See Griffiths v Griffiths 2005 ONCJ 235, 2005 Carswell Ont 3209; Warcop v Warcop; and
• Courts should assess the entire family dynamics. In particular, would such an order expose the child to parental conflict? See this discussion in KH v TKR, 2013 ONCJ 418

5. Evidence in this Hearing

[24] The parties agreed to the filing of police, school, and Children's Aid Society records as business records. As the moving party, RM was asked to serve and file these documents along with a record of the proceedings and summaries of any witness evidence by February 17, 2014. An extension was given to RM but unfortunately these documents were not filed until the first day of the hearing. AF was also given an extension of time and filed his material on the first day of the hearing.

5.1 Records from the Children's Aid Society of Toronto (CAST)

(Exhibit 2-3)

[25] The records were produced as a result of each parent executing a Consent to Release. For privacy reasons, other people's names were blacked out in the records. Where the record indicated a source other than the parents, the information is considered by the court to be hearsay and is not admissible in this hearing. Reports from the school and the family doctor were, however, confirmed by the parents in their evidence and can be treated as agreed upon facts. It became clear that any professionals in the vicinity of this family were backing away from this litigation and were declining to become involved in the conflict.

[26] The first opening was from September 26, 2008 until December 19, 2008. A doctor made the referral on information from the mother. Mother reported that the father had assaulted her when she entered a home she had just discovered that he owned. There was some shoving and the mother ended up on the floor. There were no bruises and the police declined to lay charges. The child was well cared and the file was closed. The parents were still living together in an apartment on S[…] Street. From evidence given by father's current wife later in this proceeding, it is likely that he was already involved with her at this time.

[27] The second opening was on May 30, 2009 on referral from the police. Father had contacted immigration and then police as he was concerned that mother was going to take the child to Serbia and not return. The police contacted mother who responded that she and her new boyfriend, by whom she was pregnant, were going to visit family in Serbia. Both parents were advised to obtain a family court order.

[28] On June 29, 2009, mother contacted CAST to express concerns for the care of her child by the father during the past weekend as the child returned to her with a red mark on his forehead. As well, mother reported the child had returned sick from two previous visits. The father was seeing the child alternate weekends further to a family court order. CAST contacted the daycare that was familiar with father and no concerns were noted. Mother was advised that no investigation would take place.

[29] On August 13, 2009, mother again contacted CAST regarding father's care of the child, now two years of age. Mother said that the most recent court order provided father with access 4 days a week in alternate weeks and the child often returns to her with a bad cold or a diaper rash. Daycare staff again reported no concerns with father