Court File and Parties

Court File No.: Brampton 473/13 Date: 2015-01-16 Ontario Court of Justice

Between:

Jerry Ramdial Pitamber Applicant

— And —

Kelly Stephanie Creighton Moore Respondent

Before: Justice Philip J. Clay

Heard on: December 12, 2014

Reasons for Judgment released on: January 16, 2015

Counsel:

• Mr. Robert Fernandes, counsel for the Applicant
• Mr. Roger Rowe, counsel for the Respondent

CLAY J.:

MOTION TO CHANGE

[1] The Respondent mother ("mother") brought a Motion to Change my final order dated October 25, 2013. That order was made on consent. The most relevant paragraphs of that order were as follows:

1. The parties, namely the Applicant/father, Jerry Ramdial Pitamber, and the Respondent/mother, Kelly Stephanie Creighton Moore, shall share joint custody of the child of the relationship, namely Inari Tracy Moore Pitamber born March 23, 2012. This shall mean that all major decisions touching upon the child's non-emergency health, religious development, education and general welfare shall require the consent of both parents.

2. The child Inari Tracy Moore Pitamber, shall reside with each party as follows:

   a) With the Applicant/father, namely Jerry Ramdial Pitamber, every Monday from 7:30 p.m. until Friday at 10:30 a.m. and

   b) With the Respondent/mother, Kelly Stephanie Creighton Moore, from Friday at 10:30 a.m. until the following Monday at 7:30 p.m.

[2] The mother claimed that there had been a material change in circumstances since that order and that the change affects, or is likely to affect, the best interests of the child. The Applicant father took the position that there had not been a material change in circumstances and that the mother's Motion to Change should be dismissed.

THE LAW

[3] Motions to change are governed by s. 29 of the Children's Law Reform Act which provides 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. R.S.O. 1990, c. C.12, s. 29.

[4] The onus was on the mother as the moving party to prove that a material change in circumstances had occurred.

[5] Establishing that a material change has occurred is a threshold issue. If it is established then the court is required to make a decision that is in the best interests of the child. That test and the factors to be considered are set out in Section 24 of the CLRA. However if the mother cannot prove that a material change in circumstances has occurred then her Motion to Change should be dismissed.

PROCEDURAL BACKGROUND

[6] At a case conference held on September 16, 2014 the parties agreed that the threshold issue of whether a material change had occurred or not should be decided before the parties embark upon what could be a lengthy and expensive litigation process.

[7] The parties agreed to a Summary Hearing leading to a final order on the material change issue. The Summary Hearing was to be on affidavit evidence subject to cross-examination. Both parties were given leave to file further affidavits. The mother filed an affidavit, the father a response affidavit and the mother a reply affidavit. The sworn Change Information Form of the mother and the sworn Response to Motion to Change of the father were to be evidence at the hearing as were the parties Affidavits in Support of Custody and Access. The parties filed the factums required.

[8] It was agreed that if I found that no material change in circumstances had occurred then the Motion to Change would be dismissed. If I found that a material change had occurred then the parties would consent to an order requesting that the Office of the Children's Lawyer investigate and the matter would be adjourned to a Settlement Conference.

ISSUE

1. Has there been a material change in circumstances affecting the best interests of the child occurred since the final order of October 25, 2013?

EVIDENCE

Loss of father's parents

[9] The mother stated that at the time that she consented to the final joint custody order she had relied upon the statement set out in the father's Affidavit in Support of Custody that:

My parents will continue to provide invaluable emotional and financial support to me, in caring for Inari.

[10] The father was living with his parents and with his brother who had epilepsy and was cared for by his parents.

[11] On March 16, 2014 the father's parents and his brother died of carbon monoxide poisoning after a family member brought a propane tank with a salamander into the home to provide heat as the furnace was not working.

[12] The mother said that as a result of this tragedy the father no longer had the emotional and financial support of his parents.

[13] The father's evidence was that his parents were a large part of his support system but that he looked after his daughter. He noted that in his first Affidavit in Support of Custody he had said that:

I will ensure that I continue to provide primary care for Inari as I only work evenings on the weekends.

[14] The father said that his parents owned and operated a restaurant and cared for his brother. As he lived with them they could assist in Inari's care if he was temporarily unavailable but that he did not require their help to care for his daughter.

[15] The father said that Inari was very close to her grandparents. As she was only two years old when they died he felt that Inari was not really able to understand what had happened. He said he told her that her grandparents were "in the sky". The father said that while he continued to deal with his emotions over the loss of his parents Inari had appeared to adjust to their not being at the home. He attributed this to the fact that it had now been 8 months since their death and Inari's memories had faded and she had formed an attachment to her aunt that was similar to her relationship with her grandmother.

[16] The mother said that since his parent's death the father had taken on the responsibility of the family's restaurant. At the time of the order he only worked on weekend evenings. She said that he was now working full time and was not as available for Inari as he had been. The father acknowledged that he had taken over the restaurant but he said that he had 8 employees and could set his own schedule. He said only worked on weekdays when Inari was in daycare. The mother conceded that she had no independent knowledge of the father's work schedule.

No change to parties living arrangements

[17] The father's evidence was that his uncle continued to reside in the family home and that his mother's sister, the child's maternal aunt, stayed in the home from Monday to Thursday when the father had the child with him. He said that his aunt was able to provide the same type of support for Inari that his mother had provided. He said that Inari still had her own bedroom in the home.

[18] In response to cross-examination the mother said that her own living arrangements had not changed. She still lived in the apartment condominium that she shared with her grandmother in Vaughn. She admitted that Inari does not have her own room at her grandmother's apartment. She said she had no current plans to move and she had lived with her grandmother for 3 years. She said that she was assisting her grandmother by living with her.

Alleged breach of the order—daycare

[19] Shortly after his parent's death the father realized that he would require daycare in order to be able to work more hours. He said that when he had previously discussed daycare with the mother she was insistent that Inari attend daycare in Vaughn. Based upon that the father thought it would be a waste of time to consult the mother about daycare as he knew that she would not agree to Inari attending daycare in Brampton.

[20] The father found a daycare in Brampton that was five minutes from his home and work and across the road from his grandparents. When he went to register Inari he was told by the daycare that he did not require the mother's consent as he was a joint custodial parent and all the daycare required was information as to the time when he had the child pursuant to the court order.

[21] The mother was understandably upset that the father had unilaterally registered Inari in daycare. She did not object to the child attending daycare as she knew that daycare would be good for Inari's development. She just wished that the father had involved her in the daycare decision. She denied that she had ever discussed daycare with the father prior to the death of his parents. She said that as the daycare was needed for the father's days with the child she would have agreed to daycare in Brampton. She did acknowledge that she had told the father that once Inari was of school age that she wanted her to attend the Julliard Montessori school in Vaughn.

[22] The mother noted that the final court order had provided that all major decisions including education and general welfare required the consent of both parents. The father conceded that he should have consulted with the mother on the daycare issue. The mother said that the father's failure to discuss daycare with her and his unilateral actions were a breach of the court order that demonstrated that the father was unwilling to act as a joint custodial parent.

Alleged breach of order—health card

[23] The order provided that the child's health card was to travel back and forth between the parents. The mother said that the father had breached the order by retaining the card and that this put the child's health at risk.

[24] The mother said that in January 2014 the child had developed a viral infection while in her care. She said that the father's refusal to provide the health card meant that she had difficulty accessing medical attention for the child and that she had to pay out of pocket for medical expenses.

[25] The father said when cross-examined that he had to apply for a new health card as the original one was lost. He had not provided that explanation in his affidavits. He said that the health card had traveled with the child for at least the past two months. The mother said that on the last exchange she had noticed the card in the child's backpack.

Alleged breach of order—refused mediation

[26] The mother noted that the order provided that "the parties shall attempt mediation or seek the Court's assistance on any significant matter involving the child…including the choice of school." The mother said that she contacted the father by text message regarding mediation in February 2014 and requested that he attend mediation with her. The father said he did not wish to do so.

[27] The father said that he did not think the parties had anything to mediate at that time. They had consented to a final order just three months earlier and no new issues had arisen. He also said that he did not feel that they needed "supervision" in order to talk about Inari. The mother said that the father's refusal to communicate showed that joint custody was not working. In response to a question as to why she wanted to go to mediation so soon after agreeing to a final order the mother responded "Nothing was really resolved, it was just a court order".

Alleged breach of order—failure to communicate

[28] The mother said that the father would not communicate with her about Inari and that without effective communication joint custody cannot work.

[29] There were no issues with the time sharing schedule or exchanges of the child due to communication problems. The parties had discussed Montessori school and French Immersion and the costs for same. They father had asked about the mother sharing the child tax benefit. The mother had come to the father's home on a number of occasions in the week after his parent's death. At that time they had discussed who they would ask to be Inari's guardian in the event of their deaths.

[30] Under cross-examination the mother said that she would rank the parties ability to communicate before the final court order as 1 on a scale of 1 to 10. She stated that after the order it was still a 1 out of 10. She said that she agreed to the order even though there were communication problems and felt that the joint custody order would help with communication. She attached text messages to her affidavit in which the father responded to her requests for a telephone access schedule with the statement that they could talk about it after the court process was over.

[31] The father said that he and the mother had always argued and clashed and that was why they were not together. He agreed with the mother that their communication could be rated as a 1 out of 10 at the time of order but stated that he would now rate it as a 7 or 8 out of 10. He said that he felt both of them had matured over time. They both knew that they had to talk in order to raise their daughter. The father noted that the mother had started writing a journal and it went back and forth in the diaper bag. He said that he felt positive about their ability to exchange text messages about Inari.

Child affected by changes?

[32] The mother said that the Children's Aid Society of the Region of Peel (CAS) had been working voluntarily with the family since she had contacted the police after an incident with the father that occurred in front of the child in July 2013. They had become more actively involved after the tragedy in March 2014 and had met with the father and with Inari at that time. The father said that the CAS worker was satisfied that the he could parent his daughter on his time even though he had lost his parents. The CAS closed their file in the summer of 2014.

[33] The father said that Inari had adapted very well to daycare. He filed a letter from the daycare that essentially said the child was doing very well. Although there was no objection to this unsworn evidence I am not relying upon it for the truth of its contents. I note however that the mother had no complaints about the daycare other than the fact that she was left out of the decision making process.

[34] There was no evidence filed that indicated that any changes had negatively impacted upon Inari's life.

SUBMISSIONS

[35] Mr. Rowe stated that the father had not followed the letter or the spirit of the court order. He referenced what he termed repeated breaches of the court order by the father and his refusal to communicate effectively with the mother. Mr. Rowe said that continued breaches of orders can create a material change in circumstances.

[36] Mr. Rowe relied upon Laurin v. Martin 2005 O.J. No. 2899 for the proposition that repeated violations of the provisions of a joint custody order can amount to a material change in circumstances. In that case the child was repeatedly absent or late from school when she was with the father. The father's relationship with the school was so acrimonious that he was banned from the school due to his conduct. The court found that his conduct undermined the child's education.

[37] Mr. Rowe also relied upon Pang v. Pang 2013 O.J. No. 2649. Justice D.G. Price of the Superior Court of Justice found that the mother repeatedly withheld "access" from the father and refused to increase access pursuant to the joint custody order. He found that the repeated breaches of the joint custody order should result in an order providing the father with sole custody of the party's 5 year old child. Justice Price held that the numerous breaches of the court order had a "harmful effect" upon the child and amounted to a material change in circumstances. He also found that the party's chronic inability to communicate rendered joint custody undesirable.

[38] Mr. Rowe also relied upon B.M. v. S.C. 2014 O.J. No. 2766. He cited it as an example of a case in which the court granted a mother sole custody when the conflict between the parties made joint custody untenable. In that matter Justice S. O'Connell of the Ontario Court of Justice dealt with the mother's Motion to Change a joint custody order. Since the order was made the paternal grandfather had been charged with assaulting the child and the father had relocated. The father was found to have blamed the mother for everything. He showed poor judgment and created most of the conflict. He had not protected his daughter from the grandfather. In that case the protracted hostility between the parties had led to the involvement of the CAS and the police on numerous occasions.

[39] Mr. Rowe submitted that the loss of the father's parents either meant that there had been a radical change in circumstances or that the father had mislead the court prior to obtaining the joint custody order. If his parents were an "invaluable emotional support" then their death meant that his plan for the care of his daughter had changed. If the grandparents were not that important to Inari's care then the father duped the mother into agreeing to joint custody by providing false assurances about the support that he had.

[40] Mr. Rowe concluded by asserting that time had proven that joint custody could not work and that it was time "to put one parent in the driver's seat."

[41] Mr. Fernandes said that this Motion to Change was brought because the mother was never comfortable with the original order and that she was trying to indirectly appeal a consent order made only a year ago. He noted her comment quoted above that nothing was resolved with the final order.

[42] Mr. Fernandes referred to the decision of the Supreme Court of Canada in Gordon v. Goertz (1996), 2 S.C.R. 27. Although it dealt with a Divorce Act case he submitted the test in that legislation is not significantly different than the s. 29 CLRA test. The court found at paragraph 27 that the parent applying for a change in the custody of or access to a child bears the onus and must satisfy the court that of the following:

a) A change in the conditions, means, needs or circumstances or in 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.

[43] He conceded that there was a change in circumstances in this matter that could not have been foreseen: the untimely passing of the paternal grandparents with whom the father and child resided. Mr. Fernandes effectively said that this change was not material in that the father's parents were not mentioned in the final order and that nothing in that order required the his parents to live with him to assist in providing care for the child.

[44] Mr. Fernandes submitted that there was no evidence that the loss of his parents impacted upon the father's ability to care for the child. The father had made a change to his work schedule but it did not impact the child because he had arranged day care. Both parties had contemplated that day care would be needed for the child before she began school. The mother actually thought that day care was a positive development for the child. Mr. Fernandes said that if needed the father could leave work to get the child at day care.

[45] Mr. Fenandes stated that Laurin, Pang and B.M. were all distinguishable on their facts from this case. He submitted that in each of those decisions there was actual evidence that the child was being negatively impacted by father's decisions and actions.

ANALYSIS

[46] There is no doubt that the father and his extended family suffered a tragic loss on March 16, 2014. The loss of both of her paternal grandparents will inevitably have an impact upon the child Inari. As the father and the child resided with the child's grandparents the loss was immediate and certainly represented a change in circumstances that could not have been reasonably foreseen at the time of the final order in October 2013.

[47] The real question before me is whether this change in circumstances materially affected the care of the child. Inari was just about to become 2 years old when her grandparents died. The evidence was that she was close to them but that she could not really understand what had occurred. Her mother and her father were her primary emotional supports and her father stated that her memory of her grandparents had faded. He said she had adjusted to life without her grandparents without dealing with the trauma that an older child or adult would endure.

[48] The main changes to Inari's life caused by this loss were that she began attending a day care that she enjoyed and her grandmother's sister stayed in the home to fulfill the supportive role that the grandmother had provided.

[49] I do not accept Mr. Rowe's submission that the father misled the mother and the court. He filed an Affidavit in Support of Custody in April 2013 in which he clearly stated that "I will ensure that I continue to provide primary care for Inari…" He honestly answered the required question on the affidavit that asks which relatives or friends will provide support. I find that any parent that was in close contact with his own parents would value their support in raising the child.

[50] Mr. Fernandes correctly stated that the joint custody plan was in no way made conditional upon the paternal grandparent's involvement. The father did state that they were "invaluable" supports but he also made clear that he was going to be primarily raising the child. I note that the time share agreed upon by the parties addressed the parental availability for care. At the time the mother was a university student who was in school Monday to Friday and the father did not work during the week. The father's evidence was that as owners and operators of a restaurant his parents did work during the time that he cared for Inari on weekdays.

[51] Clearly after his parents died the father had to make arrangements for mid-week care. The decision to register the child in day care was entirely reasonable in the circumstances and in fact the mother had no issue with the fact of day care. The father's unilateral decision to do this without consulting the mother, much less obtaining her agreement, was a serious error in judgment on his behalf and one that will be addressed below.

[52] The loss of her paternal grandparents will be of significant consequence in Inari's life. The loss of his parents leaves a large hole in the father's life. To his credit the father has not let this tragedy impact upon his ability to care for his daughter. He has acted responsibly in ensuring that he will be able to take his daughter to and from her daycare and can continue to be home with her on the weekday evenings.

[53] I accept that Laurin and Pang stand for the proposition that repeated breaches of an order can lead to a material change in circumstances. I find though that in this case the breaches of the order were not numerous and repeated and they did not impact upon the welfare of the child. I find these cases distinguishable on their facts.

[54] I also find that this case is quite different from B.M. In that case there was evidence of harm to a child caused by the father's failure to protect her. Furthermore the children had been living with the mother under a temporary sole custody order for nearly three years prior to trial.

[55] The parties had agreed to a joint custody order less than a year before this Motion to Change was commenced. The mother made statements to the effect that she had hoped that the order itself would change the nature of the relationship between the parties. On the other hand she also said that "nothing was settled, it was only a court order". The request for mediation so soon after the date of the order when no new issue had arisen lends further credence to the notion that the mother had second thoughts, if not actual regret, about agreeing to joint custody. Nevertheless the parties were able to co-parent Inari without any major problems. They could have communicated better but no significant problems developed through a lack of communication.

[56] The March 2013 tragedy did cause circumstances to change. The father lost his parents and his emotional supports. He now had to work during the week and needed daycare. At the time the mother was supportive of the father. She came to his home and they had the type of discussions that parents have when the uncertainty of life is made clear through the sudden death of loved ones.

[57] The father has shown tremendous strength and resilience. He took over the family business, arranged daycare and agreed to his maternal aunt residing with him on weekdays when he works. He has shielded his young daughter from trauma and provided age appropriate information to her. As a direct result of her age and the father's good judgment the child was not as impacted by her grandparent's loss as she might have been.

[58] There was a change in circumstances. However there was no evidence that this change materially affected the young child.

[59] I conclude that there was no material change in circumstances. As the mother failed to establish that the threshold test for a Motion to Change was met her Motion to Change shall be dismissed.

Costs

[60] Costs are addressed in R. 24 of the Family Law Rules. The father was the successful party and pursuant to s. 24(1) he is presumptively entitled to costs as a result.

[61] I considered the factors set out in R. 24 (11). The parties and their counsel acted responsibly in agreeing to a focused trial on the threshold issue on affidavit evidence subject to cross-examination. This was a matter which could not be compromised by an offer to settle. Either there was a material change or there was not.

[62] The mother had an arguable position. There was case law that supported that repeated breaches of a joint custody order could result in a material change. In the result I found those cases distinguishable.

[63] The father's non-compliance with the joint custody terms in this matter was nothing like the egregious conduct in the cases cited. However the father's failure to consult the mother on the day care decision was a serious misjudgment on his part. Joint custodial parents are to make all major decisions about the child together after a consultation process that considers both parties viewpoints. The choice of a day care is a big decision for parents of a young child and I can fully understand the mother's upset and frustration in being excluded from that process in this matter. As it happens, it appears that the father made a good choice for the care of the child on his mid-week time with her. I am satisfied that he now recognizes that he made a misjudgement. Still that misjudgment played directly into the mother's concerns that he did not take joint custody seriously.

[64] The parties have modest incomes. The issues were focused at a case conference so that the matter was dealt with in the half day motion. It was not particularly complex. I find that it is appropriate for the father to receive partial indemnity costs. Rather than have the parties incur the additional time and costs of submissions on the point I am prepared to fix costs as the work done to prepare for this motion is fairly transparent.

[65] I find that partial indemnity costs of $3,000 are reasonable but I deduct from the award the amount of $1,000 and make the total owed $2,000. The deduction is for the father's unilateral decision on the daycare issue that may well have had a role to play in precipitating this litigation by the mother.

FINAL ORDER

1. The Respondent mother's Motion to Change is dismissed.

2. The Respondent mother shall pay to the Applicant father his costs of the Motion to Change fixed in the amount of $2,000 inclusive of disbursements and H.S.T.

Released: January 16, 2015

Justice Philip J. Clay