Ontario Court of Justice
In the Matter of the Children's Law Reform Act, R.S.O. 1990, c. C.12
In the Matter of the Family Law Act, R.S.O. 1990, c. F.3
Between:
MARK KOETSIER Self-represented Applicant
— AND —
CARMEN ST. DENIS
L. Parise for the Respondent
Heard: November 16, 2016
Before: Kukurin J.
Decision
[1] This is a decision on a motion (at Tab 10, Vol. 2 CR) for summary judgment brought by the Respondent mother seeking an order dismissing the Motion to Change of the Applicant father, and for an order for costs.
[2] The basis for the motion is that the father has not shown that there is a genuine issue requiring a trial, and therefore, a trial is unnecessary. More particularly, the argument of the mother is that the father has failed to show that a material change in circumstances has taken place since the date of the order he wishes to vary was made. The Children's Law Reform Act requires that:
S.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.
Litigation History
[3] The father's variation claim is made by a Motion to Change. His claim is to vary the custody and access provisions of an order made by Keast J. dated Feb 10, 2010. This order was subsequently varied (as to access) by the order of Lalande J. dated May 16, 2013. It was further amended (as to access) by an order made on Oct 13, 2015 by Keast J. These orders are, in fact, variation orders of an earlier order made on consent of the parties on December 7, 2007 in a proceeding in which the father had sought joint custody, with week about provisions for the care of the child.[1]
[4] In summary, the father has brought the following:
- Application – Feb 23, 2007 resulting in consent order dated Dec 7, 2007
- Motion to Change – Feb 27, 2009 resulting in order post trial dated Feb 10, 2010
- Motion to Change (access) Jan 18, 2013 – resulting in order dated May 16, 2013
- Motion to Change – Dec 2016 – seeking parallel parenting in a joint custody regime
[5] The mother brought a contempt motion in February 2015 alleging, among other things, non-compliance by the father with his access order. During the course of this, the father again sought to have his access varied. Keast J. ordered a psychological assessment by Dr. P. Ross which was, in due course, produced. As a result of recommendations and/or suggestions made by her, the mother agreed to a change in the paternal access terms which allowed the father to have the child on alternate weekends from Fridays after school to Monday mornings, and in addition, alternate Wednesdays after school overnight to Thursday mornings, thereby avoiding the contact between parents at access exchanges. These had become problematic and a source of conflict. So far as I can discern, the contempt motion was either dismissed, withdrawn, or simply faded away into oblivion. However, the result of this contempt proceeding was yet another variation of the access order to the child's betterment. It is clear from a review of this proceeding that the settlement conference judge (Keast J) had in hand the assessment report of Dr. Ross before he made the variation order.
[6] The mother has also, in the present Motion to Change proceeding of the father, asserted a number of claims dealing with child support issues.
[7] The current Motion to Change is scheduled for trial on the forthcoming Dec 5, 2016 sittings of a running ready trial list which is part of the trial protocol at this court location.
Motion for Summary Judgment
[8] The mother's motion at Tab 10, Vol 2 CR seeks a dismissal of the father's most recent Motion to Change and it does so pursuant to Rule 16 of the Family Law Rules. This Rule exists to weed out proceedings that display no triable issue that requires a trial. That the s.29 CLRA pre-condition to a custody/access variation Motion to Change (ie material change) is a major issue in such cases is set out in the governing statute, the Children's Law Reform Act. If this is not demonstrated to exist at a motion for summary judgment, then it is highly unlikely to be shown to exist at trial. In fact, the relevant provisions of Rule 16 provide:
Rule 16 (2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.
Rule 16 (4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.
Rule 16 (4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.
Rule 16 (6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
It is abundantly clear that the respondent to the motion for summary judgment has to set out in his responding affidavit(s), "specific facts" showing that there is a genuine issue for trial.
Material Change in Circumstances
[9] The CLRA statute is quite clear in the prohibition placed on the court in making variation orders dealing with custody and access. The only exception to this prohibition is the demonstration of a material change in circumstances that affects or is likely to affect the best interests of the child. The jurisprudence is quite clear that the standard of proof is the balance of probabilities. It is equally clear that the onus to satisfy the court lies on the person seeking the variation. That is the father in this case. If this threshold is not met, then the court is foreclosed from making any variation order. The mother is claiming precisely this in her summary judgment motion, namely, that the father has not met this threshold.
[10] Section 29 CLRA is worthy of some scrutiny. Firstly, the change in circumstances is from the date of the order sought to be varied. In this case, that date is technically the order of Lalande J. dated May 16, 2013, although there could be an argument made for the period of change in circumstances to go back to the order of Keast J. dated Feb 10, 2010 as Justice Lalande's variation was a relatively minor. Whatever date is chosen, the change required to be demonstrated is a change "in circumstances" which to my mind means a change in facts or factual circumstances.
[11] Moreover, the change in circumstances has to be a "material" one. That is, it cannot be trifling, or trivial. It must be a change that has some serious consequences for the parties and, in particular, for the order that is sought to be varied. For example, if the material change was a relocation of the residence of the child from Sudbury to Saskatchewan, this would clearly interfere with an order for weekend access to the non-custodial parent, and would represent a material change in circumstances. A move from Sudbury to Chelmsford might not.
[12] In Willick and Willick[2], the Supreme Court of Canada said:
"A material change means a change such that if known at the time would likely have resulted in different terms of the order."
[13] Finally, the material change in circumstances must be shown to affect, or at least be shown to be likely to affect, the best interests of the child. When "best interests" are mentioned, there is a mandatory list of considerations in s.24(2) CLRA that comes into play:
S.24 (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.
[14] In motions such as this one before me, I may consider hearsay evidence provided that it is attributed and the deponent indicates he believes it to be true:
Rule (19) The affidavit may also contain information that the person learned from someone else, but only if, (a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true;
The Evidence on the Motion
[15] Regrettably, the father's evidence is deficient on this motion. It consists of one affidavit (at Tab 12) of Yvonne St. Denis, sister of the mother in this case, and the maternal aunt of the child. He claims in his argument that there were exhibits attached to this affidavit. In fact, there are none and there is no reference to any attached exhibits in the text of the affidavit itself. The affidavit is a testimonial to the father's admirable paternal qualities, her observations of his positive interactions when the child is with him, and his consideration for others. It is also a very negative portrayal of the mother whom the deponent describes as confrontational and adversarial, with a propensity to distort the truth. From the point of view of evidence, whatever it says has no temporal context so it is difficult to determine if it refers to the time from the previous orders. There is little in terms of changes in factual circumstances in this affidavit, much less material ones that relate to the best interests of the child.
[16] Aside from this one affidavit, there is the assessment report of Dr. Ross which has not been filed by the father in this case. He is fortunate that the mother filed an executive summary of it in her evidence on this motion as I was able to read it and follow his arguments. The report is one ordered, I presume, pursuant to s.30 CLRA, by Justice Keast:
S.30(1) The court before which an application is brought in respect of custody of or access to a child, by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.
[17] This report is not filed in the present Motion to Change proceeding, nor on this motion for summary judgment. It is technically not evidence (except for the Executive Summary). In any event, it is a document filed (and/or obtained) in a previous proceeding that was resolved by a withdrawal of contempt claims and a tweaking of the access provisions (alternate Wednesdays and alternate weekends). The father was adamant that this report was the basis for his most recent motion to change and that it represents the material change in circumstances that he relies upon to justify the order he is seeking.
[18] Unfortunately, I disagree. While such a report may be helpful to the court in making decisions dealing with custody and access, they do not constitute proof of the material change in circumstances needed to overcome the hurdle for a variation motion. The report contains clinical observations, opinions, recommendations and suggestions of the author which may assist the court but these are not proof of material changes in circumstances.
[19] The expectation from the father on this motion was to fill in the following:
| Change | Date of Change | How Affects/Likely to Affect Best Interests |
|---|---|---|
and to do so in an affidavit filed pursuant to the directions of the judge given at the last court date. It need not have been fancy. It needed to be factual.
Other Considerations
[20] While I am new to this proceeding, it is clear that it is not new to this court location. The pattern of litigation gleaned from a superficial view of the proceedings (as set out in [4] above) show that the father brings a motion to change every three years or so to change an order that was made on consent initially. The order has remained intact in granting sole custody to the mother through these various proceedings. It is equally clear from a review of the material filed, specifically the Executive Summary of Dr. Ross' report and the transcript of the Reasons of Keast J. dated Feb 10, 2010 that the relationship between the parties is one of high conflict and it has had very negative repercussions on the child who is now age 11. To permit yet another highly polarized variation proceeding to take place, particularly when the threshold step has not been shown to exist, would only exacerbate the child's disquietude. The current claim is one that seeks to upset sole custody, which is the status quo that has existed since the 2007 order was made. This is bound to be a hotly contested proceeding once again and clearly not in the best interests if this child to have two parents fighting again.
Conclusion
[21] Accordingly, the motion for summary judgment is granted. The father's claims in his Motion to Change are dismissed as the father has not met the threshold in s.29 CLRA of showing a material change in circumstances.
[22] As for the mother's claims as a respondent in her Response to Motion to Change, I make no comment on these claims as I was not asked to do so. Whether these proceed or not can be dealt with by the judge presiding at the running trial list this December.
[23] If any costs of the motion for summary judgment (which is the step with which I have dealt) are sought by the mother, she will have to file a notice of motion for such costs together with a bill of costs (if any), and written submissions not exceeding three pages, all within 15 days failing which there shall be no costs of this motion to any party.
Released: November 17, 2016
Signed: "Justice John Kukurin"
Footnotes
[1] The question then becomes from the date of what order must the variation applicant show a material change in circumstances – Feb 10, 2010 or May 16, 2013 or Oct 13, 2015?