Court File and Parties

Court File No.: D5569/11 Date: 2017-11-27 Ontario Court of Justice

Between: A.B., Applicant

— AND —

J.B., Respondent

Before: Justice Melanie Sager

Heard on: September 22, 2017

Reasons for Judgment released on: November 27, 2017

Counsel:

• Joan Irwin, for the Applicant(s)
• Cheryll A. Harris, Agent for the Respondent(s)

Reasons for Judgment

Sager, J.:

Part One - Background

[1] This is a Summary Judgement Motion brought by the Applicant (mother).

[2] The Respondent (father) has brought a Motion to Change the custody, access and child support provisions of the order of Justice Geraldine Waldman dated July 25, 2013 (order). The mother asks for an order dismissing the Motion to Change only in regards to the changes sought to the custody and access provisions of the order, on the basis that there has not been a material change in circumstances affecting the best interests of the children since the date of the order and as a result, there is no genuine issue requiring a trial.

[3] The father asks the court to dismiss the mother's motion.

Background Facts

[4] The parties were in a relationship from 2005 until June 2011. They are the parents of two children, C.B., [born … ] and B.B., [born … ].

[5] In 2013 the parties were involved in a six day trial before Justice Waldman which resulted in the order of July 25, 2013, which the father is now seeking to change. The order provides, in part, that the mother shall have custody of the children and the father shall have regular access to the children alternate weekends from Friday at 6 p.m. to Sunday at 6:00 p.m. and every Tuesday from 4:00 p.m. to 7:30 p.m. The father was ordered to pay the mother child support for the two children in the amount of $1232.00 per month based on an annual imputed income to the father of $85,000.00 and the Child Support Guidelines. This Summary Judgment Motion only deals with the changes requested by the father to the custody and access provisions of the order.

[6] Justice Waldman's order is extremely detailed, as according to her Honour's Reasons for Judgment released on July 25, 2013, "There is a high level of conflict between the parties which has continued since the separation and which has not been mitigated either by the passage of time, the involvement of lawyers or court orders."

[7] On April 4, 2014, Justice Waldman released her decision addressing costs of the trial. The father was ordered to pay the mother's costs of $28,000.00.

[8] On May 9, 2014, the father brought a Motion to Change the access and child support provisions of Justice Waldman's order. In his Motion to Change the father requested an expansion of his access to include pick up at school at 3:00 p.m. as opposed to pick up at 4:00 p.m. at the mother's home during the week and 6:00 p.m. on alternate Fridays, and, a mid-week overnight visit; requests that were specifically denied by Justice Waldman following the trial.

[9] In his Motion to Change issued on May 9, 2014, the father listed the following reasons for the request he was making in relation to access:

• "Ability to reduce time children spend in transit for mid-week access (57%)
• Ability to pick children up directly from school to reduce caregiver costs
• Ability for family support to better manage mid-week pick up times
• Ability to maintain mid-week activity schedule and avoid enforcement action
• Ability to take advantage of daylight savings time
• Ability to reduce communication between the parties"

[10] The parties attended in court before Justice Waldman on July 10, 2014 and in her Honour's endorsement she wrote, "I am not prepared to address any issues relating to the decision at trial under any circumstances. That can only occur via an appeal." Justice Waldman ordered the father to pay the mother's costs fixed at $400.00 and endorsed the record, "I am not prepared to change access today. Based on Respondent's manner and demeanor in ct. [court], nothing has changed."

[11] On December 1, 2015, the father brought the current Motion to Change Justice Waldman's order. He amended his Motion to Change (Fresh Motion to Change) on April 16, 2016 [1] and of the relief he requested, the following are the more significant changes being requested to the order:

(a) An order for joint custody of the children;

(b) An order that the children be in his care every week from Tuesday at 3:00 p.m. until Wednesday at 9:00 a.m. and alternate weekends from Friday at 3:00 p.m. until Monday at 9:00 a.m. with pick up and drop off at school;

(c) An order fixing his child support obligation based on an annual income of $26,014.00 and the Child Support Guidelines, as of January 1, 2016;

(d) An order fixing the father's share of section 7 expenses incurred for the children at 25%; and,

(e) An order crediting to the father an overpayment of child support to the mother in the amount of $14,912 as of April 30, 2017.

[12] The mother's position on the father's Motion to Change is that there has been no material change in circumstances warranting any of the changes the father is seeking to the custody and access provisions of the order and that his Motion to Change is just an attempt to re-litigate the issues addressed by Justice Waldman.

[13] After issuing his Motion to Change in December 2015, several court appearances were spent addressing the father's failure to pay Justice Waldman's order of April 4, 2014, requiring him to pay the mother costs of $28,000.00. As a result of his failure to pay the costs, the father's Motion to Change in so far as it related to custody and access was stayed by the court.

[14] The parties attended in court on February 10, 2016, May 20, 2016, August 25, 2016, October 20, 2016 (only mother and her lawyer attended), and November 25, 2016. During these court appearances, only the father's claim to vary child support was addressed. On January 10, 2017 [2], after the father had paid the outstanding costs order, the stay was lifted and the father was permitted to pursue his claims to vary custody and access.

[15] The parties attended in court on April 25, 2017, and the mother requested a date to bring a Summary Judgment Motion. As I had not conducted a case conference or had any discussions on the issues of custody and access, the parties agreed to have the Summary Judgment Motion scheduled before me on July 20, 2017.

[16] On the return of the motion on July 20, 2017, the father requested an adjournment, which was opposed by the mother, as he had recently released his lawyer and wished to retain new counsel. The father's request for an adjournment was granted and made returnable on September 22, 2017, peremptory to the father who was ordered to pay the mother's costs fixed at $2500.00 payable forthwith [3].

[17] The Summary Judgement Motion proceeded on September 20, 2017 and I relied on the following materials:

(a) Applicant's Notice of Motion dated June 16, 2017, found at Volume 5 (Book 1), Tab 10 of the Continuing Record;

(b) The Applicant's Affidavit in support of motion sworn June 16, 2017, found at Volume 5 (Book 1), Tab 11 of the Continuing Record;

(c) The Respondent's Affidavit sworn August 30, 2017, found at Volume 5 (Book 2), Tab 1 of the Continuing Record;

(d) The Applicant's Reply Affidavit sworn September 18, 2017, found at Volume 6, Tab 1 of the Continuing Record;

(e) The Applicant's Factum and Book of Authorities; and

(f) The Respondent's Factum and Book of Authorities.

[18] On September 28, 2017, the father brought a 14B Motion in which he requested to "re-open" the Summary Judgment Motion to allow him to make an additional 60 minutes of submissions. This request was opposed by the mother and denied by the court as the court had "voluminous materials from the parties including facta and case law. Submissions were closed and the court has not been provided with a persuasive reason to re-open the motion after it was completed and a decision was reserved."

Part Two – Legal Considerations

2.1 Summary Judgment

[19] The mother brings this motion pursuant to rule 16 of the Family Law Rules (the rules) – the summary judgment rule. The relevant provisions of rule 16 read as follows:

RULE 16: SUMMARY JUDGMENT

WHEN AVAILABLE

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (1).

AVAILABLE IN ANY CASE EXCEPT DIVORCE

(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. O. Reg. 114/99, r. 16 (2).

EVIDENCE REQUIRED

(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.

EVIDENCE OF RESPONDING PARTY

(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.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

NO GENUINE ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

POWERS

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

ORAL EVIDENCE (MINI-TRIAL)

(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[20] In Children's Aid Society of Toronto v. L.S., 2017 ONCJ 506, Justice Debra Paulseth provides a summary of how rule 16 is to be applied as set out by the Supreme Court of Canada, in the case of Hryniak v. Mauldin, 2014 SCC 7. In paragraphs 19-23, Justice Paulseth writes:

[19] The court held that the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before the judge, without using the judge's new fact-finding powers.

[20] If there appears to be a genuine issue requiring a trial, based on the record before the judge, the judge should then determine if the need for a trial can be avoided by using the new powers. These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary, provided that they do not run contrary to the interests of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole (paragraph 66).

[21] If there are concerns about credibility or clarification of the evidence, then those issues can be addressed by calling oral evidence on the motion itself (paragraph 51). This is the mini-trial procedure set out in subrule 16 (6.2). This power should be employed when it allows the judge to reach a fair and just adjudication on the merits and it is the proportionate course of action. While this is more likely to be the case when the oral evidence required is limited, there will be cases where extensive oral evidence can be heard on the motion for summary judgment, avoiding the need for a longer, more complex trial and without compromising the fairness of the procedure (paragraph 63).

[22] There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and appropriate procedure (paragraph 66).

[23] The court in Hryniak also set out the following:

a) Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims (paragraph 5).

b) Undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes (paragraph 24).

c) The summary judgment motion is an important tool for enhancing access to justice because it can provide a cheaper, faster alternative to a full trial (paragraph 34).

d) The Ontario amendments to rule 20 of the Rules of Civil Procedure changed the test for summary judgment from asking whether the case presents a "genuine issue for trial" to asking whether there is a genuine issue requiring a trial. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure (paragraph 43).

e) Where a summary judgment motion allows the judge to find the necessary facts, to apply the law to the facts and resolve the dispute in a just manner, proceedings at trial would generally not be proportionate, timely or cost-effective (paragraph 50).

f) A process that does not give the judge confidence in conclusions to be drawn can never be a proportionate way to resolve the dispute (paragraph 50).

g) On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that the court can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The extra powers provided can provide an equally valid, if less extensive, manner of fact finding (paragraph 57).

h) The inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures. It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate better evidence that would be available at trial (paragraph 58).

[21] In Irving Ungerman Ltd. v. Galanis, the Ontario Court of Appeal wrote that "A 'genuine' issue of fact requires that the fact be material to the decision that must be taken in the main litigation. If the result of the proceeding does not turn on the existence or non-existence of the fact that is advanced as genuine issue, then it cannot relate to a 'genuine issue for trial'."

[22] On a motion for summary judgment, the court is required to take a hard look at the merits of the case to determine if there is a genuine issue for trial. The onus is on the moving party to show that there is no genuine issue requiring a trial. See: Children's Aid Society of Hamilton v. M.N..

[23] A party answering a motion for summary judgment cannot just rest on bald denials; they must put their best foot forward, showing that there is a genuine issue for trial. See: Children's Aid Society of Toronto v. K.T..

[24] Evidence on a summary judgment motion must be trial worthy. In Children's Aid Society of Toronto v. B.(B.), 2012 ONCJ 646, at paragraph 25, Justice Stanley Sherr, states that "My view is that the court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. I see no justification for a lower evidentiary standard for these motions." Justice Sherr opines that, "summary judgment procedure is designed to winnow out cases that have no chance of success. It is not an invitation to water down the rules of evidence in order to make that determination."

[25] In Children's Aid Society of Ottawa v J.B. and H.H., 2016 ONSC 2757, at paragraph 13, Justice Mackinnon holds that the starting point in addressing the admissibility of hearsay evidence is that it is excluded unless it satisfies the tests of necessity and reliability.

[26] I agree with and adopt the approach to hearsay evidence taken by Justice Sherr and Justice Mackinnon.

2.2 Legal Considerations with Respect to Motions to Change

[27] The court must determine whether there is a genuine issue requiring a trial within the legal considerations that apply on a Motion to Change. The Motion to Change is brought pursuant to section 29 of the Children's Law Reform Act. Section 29 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.

[28] The test for a variation was enumerated by the Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27. As stated by Justice Stevenson in Brown v. Lloyd, 2014 ONSC 300, although the test in Gordon was the result of a mobility case and variation under the Divorce Act, "the test has been held to be applicable to a variation under the Children's Law Reform Act."

[29] At paragraphs 15-17, Justice Stevenson sets out the test for variation resulting from the decision in Gordon v. Goertz, as follows:

[14] Both parties agree that the test for a variation is set out in the Supreme Court of Canada decision of Gordon v. Goertz, [1996] 2 S.C.R. 27, [1996] S.C.J. No. 52. The decision dealt with a mobility case and a variation under the Divorce Act, R.S.C. 1985, c. 3; however,

[15] As outlined in Gordon v. Goertz at paragraph 10, before the court can consider the merits of an application for variation, it must be satisfied that there has been a material change in circumstances of the child since the last order was made. The Court further stated at paragraphs 12 and 13:

12 What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), 35 R.F.L. (3d) 169 (B.C.S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.). Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. "What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place": J. G. McLeod, Child Custody Law and Practice (1992), at p. 11-5.

13 It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) 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; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

[16] Jurisdiction to vary a custody and access order is dependent upon an explicit finding of a material change in circumstances since the previous order was made. If an applicant fails to meet this threshold requirement, the inquiry can go no further. See Persaud v. Garcia-Persaud, [2009] O.J. No. 5940, 2009 ONCA 782; and Litman v. Sherman (2008), 2008 ONCA 485.

[17] If the threshold requirement of a material change in circumstances is met, the judge must then enter into a consideration of the merits and make the order that best reflects the interests of the child (Gordon v. Goertz, para. 9). The judge on the variation application must consider the findings of fact made by the trial judge as well as the evidence of changed circumstances (Gordon v. Goertz, para. 17).

[30] If the court finds that the threshold requirement of a material change in circumstances has been established, the court must then proceed to review the issues of custody and access afresh and make determinations based on what is in the child's best interest having regard to all of the circumstances in section 24 of the Children's Law Reform Act. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. The court should consider the matter afresh without defaulting to the existing arrangement. See Gordon v. Goertz, and Allen v. Allen (1998).

[31] In order to determine if the conditions for a variation exist, the change of circumstances must be material as opposed to trivial or insignificant: Hickey v. Hickey, [1999] 2 S.C.R. 518.

[32] While it is the mother's onus on the Summary Judgment Motion to establish that there is no genuine issue requiring a trial, it is the father's onus on the Motion to Change the final order to establish that there has been a material change affecting the needs of the children and the parents' ability to meet those needs such that the final order must be reviewed.

[33] The requirement of a material change in circumstances means that a change motion cannot be an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its opinion for that of the first judge. It must assume the correctness of the decision and consider only the changed facts since the first order was made. Docherty v. Beckett (1989). The court should allow only a limited look at evidence predating the order to understand how it was made in order to determine if a material change in circumstances has been established. Hornan v. Hornan, 2007 CarswellMan 421 (Man. Q.B.).

[34] Once the court determines that there has been a material change in circumstances, the court should then look at all the evidence, including the evidence predating the order from which change is being sought. Segal v. Segal (2002).

Part Three – The Evidence

3.1 Father's Alleged Material Change in Circumstances

[35] The father filed a 42 page affidavit with 152 paragraphs containing a plethora of complaints about the mother. He relies on this affidavit to demonstrate that there have been numerous material changes in the children's circumstances since Justice Waldman made her order that require changes to the order. After a thorough review of the father's affidavit, I summarize his alleged material changes as follows:

(a) The parties continue to have conflict which the mother is mostly responsible for by abusing the order granting her sole custody;

(b) The father has hearing loss, which has worsened by 20% per year since the date of the final order. This affects his and the children's ability to communicate with one another such that the children have to "learn how to communicate with a 'hard of hearing' or 'deaf' father";

(c) The children must learn American Sign Language (ASL) to enable them to communicate with the father and in order to do so, they must spend more time in the father's care. This will allow the children not only sufficient time to obtain training in ASL but it will also allow for more time practicing ASL while in the father's care;

(d) The children's needs have changed now that they are older and are both in full time attendance at school;

(e) The mother enrolled C.B. in private school without consulting the father;

(f) The mother withdrew B.B. from private school against the father's wishes;

(g) Both children have expressed a desire to spend more time with the father;

(h) The father's home is closer to C.B.'s new school which makes picking her up and dropping her off at school in her best interests as she will spend less time in the car and more time in the father's care;

(i) Increasing the father's access will allow him to be a "hands-on role model for the children with respect to their modelling" an industry that he introduced the mother and children to;

(j) Increasing the time the children spend with the father will give him access to greater financial assistance and benefits available through the government which will ultimately benefit the children;

(k) It is unethical and not in the children's best interest for the mother, who has a lavish lifestyle, to continue to receive the child tax benefit. In order for the father to receive the child tax benefit for one of the children, that child must have their primary residence with the father;

(l) The mother has been interfering in the father's access by unilaterally cancelling visits, which pick up and drop off at the children's schools would address as she would be unable to continue to act in this manner;

(m) The children have been exposed to disruptive behaviour by the mother at access exchanges such that altering the pick-up and drop off of the children to their respective schools would eliminate this problem;

(n) The mother does not provide the father with the children's passports upon request which interferes in his access to the children;

(o) The order requires the mother to arrange for make-up visits when she cancels a visit but does not have a mechanism for arranging make up access and one is required as the parties have been unsuccessful in doing this on their own; and,

(p) The mother is gender biased as she spends more time, money and effort on C.B. than she does on B.B.

3.2 Findings Made by Justice Waldman on July 25, 2013

[36] In her Reasons for Judgment, Justice Waldman made the following findings which are relevant to this proceeding:

(a) Both parents love the children very much who enjoy a loving relationship with both parents;

(b) There is a high level of conflict between the parties that has not dissipated with the passage of time and the father is most responsible for the "conflict and poor communication";

(c) The mother has on many occasions attempted to mitigate the conflict between the parents;

(d) The children have been exposed to the conflict;

(e) The parties have argued about issues that impact the children's best interests and have not demonstrated an ability to communicate, discuss or make collective decisions;

(f) The father has been verbally abusive and aggressive towards the mother and acted in this way in front of the children;

(g) The father's "decisions focus on his needs and his understanding of what is happening to him and not on the children's needs and the impact of his conduct on the children";

(h) The father has not shown any insight into the impact of the conflict and his behaviour and choices on the children;

(i) The father believes that the mother is intent on marginalizing his role in the children's lives and as a result he believes he must be "constantly vigilant" against her desire to "control the situation";

(j) The mother has not created conflict to advance her own agenda nor is she attempting to marginalize the father's role in the children's lives;

(k) There is no evidence to suggest that the conflict between the parents will be resolved;

(l) The mother has always been the children's primary caregiver;

(m) The father is "chronically late when picking up and returning the children";

(n) The mother has abided by court orders whereas the father has not; and,

(o) The father has missed many access visits due to other responsibilities.

3.3 Facts Not in Dispute

[37] The following is a summary of the relevant undisputed facts:

(a) The parties children are well adjusted and doing well;

(b) The parties' daughter, C.B., attends [ … school] where she enjoys school and is doing well;

(c) The parties' son, B.B., attends [ … school]. He received a very positive report card in June 2017 and is currently in Grade 2 and doing well;

(d) B.B. enjoys the comfort and stability of his current school and it would be difficult for him to adjust to a new school;

(e) B.B. is currently well adjusted to his school where he has many friends and is performing academically at an average level;

(f) C.B. is involved in competitive dance and B.B. takes dance classes and plays soccer;

(g) Neither child has any medical or behavioural issues;

(h) The children like their routine on Fridays before weekends with their father whereby the mother picks them up from school, brings them home and they get organized for their weekend with their father;

(i) Both parties acknowledge that while there has been less conflict since the date of the final order, there continues to be ongoing conflict in the parties relationship;

(j) Since the order was made, the father has called the police on more than one occasion requesting their assistance facilitating the exchange of the children and obtaining their passports;

(k) The mother has called the police on at least two occasions since the date of the final order; once to assist her in obtaining the children's passports from the father; and, on another occasion when the children were dropped off by the father after a visit, in contravention of the order, at a Starbucks;

(l) The father was charged with assaulting the mother on September 30, 2014. This incident occurred at the mother's home at an access exchange in front of the children;

(m) A condition of the father's bail was that he have no contact with the mother and he not attend within 500 metres of her home, work or any place she may be;

(n) After the father was charged criminally, his family members assumed responsibility for picking up and returning the children for the father's visits;

(o) On July 28, 2017, the Crown withdrew the criminal charges against the father who entered into a peace bond, which provides that for 12 months he is prohibited from having contact with the mother except pursuant to the terms of a family court order;

(p) The parties have had conflict over the exchange of the children's passports;

(q) In April 2014, the father did not return the children's passports to the mother in accordance with Justice Waldman's order;

(r) The parties have had conflict over cancelled access visits and the scheduling of "make-up" visits pursuant to the final order;

(s) The father originally did not agree to the cancellation of his access over the 2016 Thanksgiving weekend following the unexpected death of the children's maternal grandmother. After the lawyers became involved the father's visit was cancelled and eventually made up in July 2017;

(t) In June 2017, in response to a request to cancel a weekend visit with C.B. so she could travel to a friend's cottage, the father provided the mother with an email containing 9 conditions she had to agree to before he would consent to the request. The mother did not agree to the conditions and eventually the father agreed to C.B. missing the visit;

(u) If one child is sick and cannot attend a visit with the father, the father has chosen not to have his mother pick up the other child and to visit with that child alone;

(v) On at least two occasions the father brought the children to Starbucks at the end of his visit and advised the mother to pick them up there. On one occasion the mother called the police; on the other she did not receive the father's message in time and the children walked home alone from Starbucks;

(w) The parties have had conflict over scheduling summer vacation; and,

(x) In 2017, the father did not provide the mother with his preferred summer vacation dates by March 15th as ordered by Justice Waldman. The parties' lawyers exchanged several letters in an attempt to resolve the issue of the summer parenting schedule.

Part Four – Analysis

4.1 Are Any of the Alleged Changes "Material Changes"?

(a) Does the Continued Conflict Between the Parties Since the Date of the Final Order Amount to a Material Change in Circumstances?

[38] The parties acknowledge that they continue to have conflict in their relationship since the date of the order. This is the case even though the father has been prohibited from having contact with the mother since September 2014; one year after the date of the trial and three years prior to the date of the Summary Judgment Motion.

[39] The parties have had conflict over trivial issues as well as issues important to the children. The following are some of the issues the parties have had conflict over since the date of the order:

(a) C.B.'s request to cancel a weekend visit with her father to attend a friend's cottage resulted in conflict between the parties that led to a list of 9 demands by the father, which had to be met by the mother before he would allow C.B. to miss his visit.

(b) The parties argued over whether the father required the children's passports to travel across the border to the United States by car.

(c) The parties cannot agree on whether the mother gave the father the children's original Birth Certificates and if she did, whether the father returned them to her.

(d) The parties disagreed over whether all four of C.B.'s grandparents should attend Grandparents Day at her school or if they should alternate yearly.

(e) The parties had conflict over whether C.B. could miss a visit with the father to attend a school graduation party.

(f) The parties had a disagreement over whether the children could miss a weekend with their father to spend time with the mother and her family after the sudden death of her mother.

(g) The parties have had problems arranging make-up access and summer vacations.

[40] Justice Waldman presided over a six day trial during which both parties testified. Her Honour declined to make an order for joint custody or parallel parenting on the findings of fact that there is a high level of conflict between the parents; the father has been the parent primarily responsible for the conflict; the father is verbally abusive and aggressive towards the mother; the mother is and has been the children's primary caregiver, and, the father employs a decision making process that puts his needs before those of the children.

[41] Justice Waldman anticipated that the conflict would continue even after the completion of the trial as is evidenced by her comment, "Given the history and the evidence at trial, I can only conclude that this arguing and disagreeing will continue." Justice Waldman attempted to manage the conflict by making a very detailed order. Justice Waldman's order was crafted to reduce the conflict. It is very clear from the order that Justice Waldman contemplated that the conflict between the parties would continue. The father's statement in his affidavit evidence that the "objective of the Order was to reduce parental conflict and set the stage for a co-parenting relationship between the applicant and myself" is misguided and not supported by Justice Waldman's Reasons for Judgment.

[42] Since the date of Justice Waldman's order, the father was charged with assaulting the mother in 2014. The charges were dropped in July 2017 when the father entered into a 12 month peace bond. The father also admits to contacting the police to request their assistance communicating with the mother. He has requested police assistance in facilitating the exchange of the children and their passports.

[43] The father produced email exchanges between the parties in which the father was demanding and made inappropriate comments and requests.

[44] In his Motion to Change, the father requests changes to the order to allow him to pick up and drop off the children at school, in part, to eliminate contact between the parents and the prospect of conflict in front of the children. He also asks for an order requiring the police to assist in the enforcement of his access. The father's request in this regard is evidence of the continued high level of conflict between the parties and frankly, that nothing has changed since Justice Waldman made her order.

[45] There are no new circumstances present in this case that would justify a change in the order. Nothing has changed in the dynamics of the parties' relationship. Not only are the parties unable to communicate in a healthy and effective way, the father has been prohibited from having direct communication with the mother for the past three years as a result of his bail conditions and is currently prohibited from communicating with her as a result of a peace bond. Therefore, I find that the continued conflict between the parties since the order was made is not a material change in circumstances as defined in Gordon v. Goertz.

(b) Is the Father's Increased Hearing Loss Since Trial a Material Change in Circumstances?

[46] The father was diagnosed with hearing loss before the trial that resulted in the final order. He was fitted with his first set of hearing aids in 2012. The parties dispute what services the father had available to him at the six day trial before Justice Waldman. The mother provided evidence from the management at this court that confirms that a captionist provided captioning services for the father for each day of trial by ITN Group. An email was provided by the mother from ITN Group providing the name of two captionists who attended in court during the trial. Despite the evidence presented by the mother, the father denies that he had such services during the trial. I note that on January 9, 2013, Justice Stanley Sherr conducted assignment court and in referring this matter to trial endorsed the record to read, "There is an accessibility issue – father's hearing. Counsel will get in touch with Ms. Policelli and arrange for father to come in, in advance of the hearing and test assisted listening devices."

[47] There is no dispute that the father's hearing loss began before the date of trial. The father provided evidence on this motion that when he was diagnosed he understood that his hearing loss was progressive and would worsen over time. [4] The issue is whether the worsening of his condition is a material change in the circumstances warranting a review of the custody and access order.

[48] While the father deposes that his increased hearing loss affects his ability to communicate with the children, no evidence was provided by him to support this claim. Other than his statement, no evidence was provided by the father to explain how the worsening of his hearing has made it harder to communicate with his children or for them to communicate with him.

[49] The father does not provide evidence of a material change that has "altered the child's needs or the ability of the parents to meet those needs in a fundamental way." [5] Furthermore, as the father's diagnosis of progressive hearing loss predates the trial of this matter, the effect of his hearing loss on his parenting in the future would have been contemplated by the trial judge. In his Motion to Change, the father claims there has been a material change in circumstances and relies upon facts that existed at the date of the original order. As a result, the father cannot demonstrate that the order at the time of the original hearing would have been different as the very facts he is relying on to demonstrate material change today were known at the time of the original order.

[50] The father has not provided the court with evidence that his progressive hearing loss has altered the children's needs or the ability of the parents to meet those needs in a fundamental way; he has not demonstrated that this change materially affects the children; and, he has not demonstrated that this change was either not foreseen or reasonably contemplated by Justice Waldman when her Honour made the order.

[51] I find that the father's increase in hearing loss since the date of the trial is not a material change in circumstances.

(c) Is the Children's Need to Learn American Sign Language a Material Change in Circumstances?

[52] In support of his argument that his hearing loss is a material change in circumstances since the previous order, the father provided notes from the children's doctor, one for each child, dated December 16, 2015, addressed, "To Whom It May Concern" and which states, "Please assess for age appropriate requirements for American Sign Language (ASL) communication with father, J.B. with progressive hearing loss".

[53] The father argues that the children must learn ASL and in order to do so, must spend more time in his care as the mother will not take the children to ASL classes when the children are in her care. [6] If the father wishes for the children to learn ASL there is no evidence to suggest he cannot do so when the children are in his care pursuant to the order of Justice Waldman. The father has regular weekly access in addition to holiday access during which he can arrange ASL lessons.

[54] The evidence provided by the father does not establish a change in circumstances that affect the children's needs in a material way. No doubt it will be beneficial for the children and father to learn ASL to assist in their communication but the evidence presented by the father does not rise to the level of a material change in circumstances. As Justice Stevenson wrote in Brown v. Lloyd, 2014 ONSC 300, a case in which the child was diagnosis with a learning disability after the original order and the father argued that the diagnosis and the child's need for tutoring was a material change in circumstances, "While there is no question that Dax being diagnosed with a learning disability is a change and a challenge, the evidence does not establish that there is an inability of either parent to meet Dax's needs as a result of his diagnosis."

[55] While the father's progressive hearing loss may be a challenge to his parenting, it is not a material change as there is no evidence that this change creates an inability of either parent to meet the children's needs.

(d) Is the Conflict Around Cancelling and Rescheduling Access a Material Change in Circumstances?

[56] The father claims that the mother unilaterally cancels his visits last minute and then does not cooperate to reschedule the visits in accordance with Justice Waldman's order. In his affidavit evidence, the father lists 11 visits, in 2016 and 2017, which he claims were unilaterally cancelled by the mother. The father has included in his list of 11 missed visits the following:

(a) Tuesday June 14, 2016 – C.B.'s school class graduation party;

(b) October 13-17, 2016 – Thanksgiving weekend, the weekend following the sudden death of the children's maternal grandmother [7];

(c) February 7, 2017 – B.B. received a call back for a modelling job and the mother advised the father she would take B.B. to the call back and that C.B. would be available for the visit. The mother also proposed dates for a make-up visit with B.B.; and,

(d) June 29-July 3, 2017 – this was previously scheduled holiday time for the mother as evidence by an email from her to the father dated May 24, 2017.

[57] Even if the mother had cancelled the 11 visits outlined in the father's affidavit evidence over a four year period, which she denies, this would not amount to a material change in the children's circumstances. "Chronic non-compliance with a court order can amount to a material change in circumstances if the breaches negatively impact the children." See: Roloson v. Clyde, 2017 ONSC 3642. There is no evidence to demonstrate that the cancelled visits over the past four years has negatively impacted the children. It is to be expected that events, special occasions and tragedies will result in reasonable and sometimes sudden or last minute changes to a parenting regime set out in a court order. This is evidenced by paragraph 21 of Justice Waldman's order that provides, "There will be no make-up visits if the respondent/Father cancels a visit. The Respondent/Father will be entitled to a make-up visit if the Applicant/Mother cancels a visit other than because of sickness."

[58] It is clear that Justice Waldman anticipated that there will be occasions when the mother will have to cancel the father's access. As she is entrusted with custody of the children she is required to exercise this right in a fair and reasonable way. Cancelling a visit due to a death in the family, a graduation party or a trip to a friend's cottage are examples of appropriate parenting decisions by the mother.

[59] A court order will never be able to address every circumstance separated parents find themselves in and instruct them on how to behave. Justice Waldman clearly attempted to provide the parties with a detailed court order to avoid conflict as much as possible. Where she could not have possibly addressed a situation that arose, like the death of a grandparent, the court expects the parties, even those in high conflict situations, to employ a modicum of empathy and reasonableness in those situations. Most people do but some are simply incapable of doing so.

[60] It is unimaginable that the father would make an issue over the children staying with the mother following the unexpected death of her mother. It was mean and self-absorbed for the father to deny C.B. the opportunity to spend a weekend at her friend's cottage unless the mother agreed to a list of 9 demands. The father's behaviour is evidence that nothing has changed since Justice Waldman found that his "decisions focus on his needs and his understanding of what is happening to him and not on the children's needs and the impact of his conduct on the children".

(e) Is the Difficulty Around Scheduling Make-up Access and the Lack of a Mechanism for Arranging and Implementing the Make-up Access a Material Change in Circumstances?

[61] The father alleges that the mother does not comply with the court order and cooperate to arrange make-up visits when she cancels access. He argues that he should simply be able to pick the date for the make-up visit.

[62] The father deposes that when the mother cancels his visits "she is inflexible with respect to what I request as make-up access". He considers her behaviour to be the sole cause of the conflict between the parties. The father has not provided any evidence to support his statement that the mother does not cooperate to schedule make up access nor does he provide evidence of a single email exchange between the parties where they are attempting to schedule a make-up visit; but the mother does.

[63] The mother has provided copies of emails from her to the father as well as letters from her lawyer to the father's previous lawyer where make up access is offered. Included in the mother's evidence is a letter from her lawyer in which the issue of make-up access is addressed. What is clear from the letter is that the father took the make-up access negotiations as an opportunity to seek access that is outside the terms of the court order. The same letter, which is dated April 17, 2017, indicates that the mother had requested dates from the father to make-up the missed visit over the 2016 Thanksgiving weekend and when the father did not provide the mother with proposed dates, she took the initiative to suggest dates. The mother's proposed dates were rejected by the father. The make-up access was eventually scheduled for the Labour Day long weekend, 9 months after the original visit was cancelled.

[64] In the mother's affidavit, she provides examples of emails from her to the father in which she proposed dates for make-up access, including an email in which she proposed make up dates for a visit she cancelled on February 7, 2017, one of the dates the father includes in his affidavit evidence as a visit unilaterally cancelled by the mother. The mother's evidence also includes letters from her lawyer to the father's lawyer which demonstrate the inordinate amount of difficulty the mother had arranging summer programing and vacations for the children because the father did not provide his requested summer vacation dates by March 15th as ordered by Justice Waldman.

[65] As stated above, the court was provided with documentary examples of the mother immediately offering the father dates to make up a cancelled visit. The court was also provided with evidence of the father's failure to respond to these proposals. It is clear from the evidence that the mother has complied with the make-up access provision of the order.

[66] In Hawkins v. Schlosser, 2013 ONSC 2120, Justice Ellies refused to consider the father's failure to comply with the previous court order and bring the child to the mother's home for access a material change in circumstances as the father's conduct was a reasonable reaction to the mother's refusal to bring the child home at the end of the visits. The father argued that his conduct was a reaction to the mother's refusal to comply with the court order and Justice Ellies agreed noting, "I find that Ms. Hawkins is trying to take advantage of Mr. Schlosser's reaction to a situation that she created, for the purpose of overturning the final order. The circumstances she relies upon to support her motion were the natural consequences of her own actions. They do not constitute a material change in circumstances."

[67] The father is making it very difficult for the mother to schedule make-up access, provide him with the children's passports and schedule summer access due to his unreasonable behaviour. He cannot engage in provocative behavior and then rely on the mother's reaction to his behaviour as the basis for a material change in circumstances.

[68] As Justice Ellies noted in Hawkins, about the mother's behaviour, it seems that the father is more interested in eliciting behaviour from the mother that he can argue constitutes a material change in circumstances then he is in arranging summer and make-up access.

[69] The change the father relies on in relation to cancelled visits and make-up visits does not in any way alter the child's needs or the ability of the parents to meet those needs. Justice Waldman's order provides very clear and concise instructions on how vacations are to be scheduled and how make-up access is to be arranged. The difficulty that is clear from the evidence is that the father does not follow the terms of the court order.

[70] As access visits are rarely cancelled by the mother, [8] and the evidence is that she does cooperate to arrange make-up visits, this is not a material change in circumstances requiring a review of the order.

(f) Are the Children's Changing Needs and Education as They Grow Older a Material Change in Circumstances?

[71] The father claims that the children's current needs are different then at the date of trial as a result of their being older and that this amounts to a material change in circumstances. The father provided no evidence to support his claim of a material change in this regard. Whether the children growing older is a material change in circumstances depends upon the facts of each case. The "mere passage of time and increased maturity of the child does not, in and of itself, constitute a material change in circumstances" as envisioned by the Children's Law Reform Act. See: Gray v. Wiegers, 2008 SKCA 7. In Gray the court reasoned that if the mere passage of time automatically constituted a material change in circumstances, "there would be an automatic right to seek a variation of custody orders on a regular basis every year", which would be inconsistent with the case law.

[72] This does not mean that the children aging can never be a material change in circumstances as many courts have found that it is but the passage of time is accompanied by changes to the children's needs that are no longer being met by the previous court order. The court on a variation must ask itself how the passage of time has affected the child's needs and whether the existing court order is adequately meeting those needs. If the court order is not meeting the children's needs as they grow older, then, arguably, there has been a material change in circumstances warranting a review of the order.

[73] The father provides no evidence to support his contention that the child's needs have changed at all with the passage of time. He also fails to provide any evidence to demonstrate how Justice Waldman's order is no longer adequately meeting the children's needs and therefore fails to demonstrate that the children growing older in this case is a material change in circumstances.

[74] The father deposes in his affidavit evidence that the children have expressed a desire to spend more time with him. The father provides the court with absolutely no evidence to support his statement. The children are 8 and 7 years of age. Their views and preferences are but one factor for a court to consider when devising an access schedule. There is no evidence before the court that the current access schedule is not meeting the children's needs. An unsupported statement by the father that the children wish to spend more time with him cannot in and of itself amount to a material change in circumstances requiring a review of the order.

[75] The father's claims that the mother enrolled C.B. in and withdrew B.B. from a private school without consulting him, which she does not deny, does not amount to a material change in circumstances.

[76] The final order of Justice Waldman does require the mother to consult with the father by email before making any major decisions affecting the children. If she does not comply with this requirement, the answer is not to alter the custody order especially in light of Justice Waldman's findings about the nature of the parties' relationship and my findings that nothing has changed or improved in this regard. Even if I am wrong, and this does amount to a material change in circumstances, it would not result in a change to the custody order given all of the facts and circumstances of this case.

[77] Once again, without evidence that the decisions made by the mother have affected the children's in a negative or harmful way such that their needs are no longer being met by the court order, the mother's actions do not amount to a material change in circumstances. See: Roloson v. Clyde, 2017 ONSC 3642.

(g) Additional Alleged Material Changes

(i) The Children's Modelling

[78] The children are involved in modelling, something the father introduced the children and the mother to during their relationship. In his affidavit evidence, the father claims that the children should spend more time with him to allow him to be a "hands-on role model for the children with respect to their modelling". While I question whether this is a change at all, I am quite confident that this is exactly the kind of change the Supreme Court of Canada in Hickey v. Hickey, supra, would have categorized as trivial or insignificant and not a material change in circumstances.

(ii) Distance from Father's Home to C.B.'s School

[79] The father argues that as he lives close to C.B.'s school it makes little sense for her to return to her mother's home after school on evenings she is scheduled to be in his care when he can just pick her up from school. Should this change be made to the order, the father argues C.B. will spend less time travelling between homes and will allow him to develop a relationship with the school and other parents. The father also argues that changing the pickup and drop off location from the mother's home to the children's schools will result in the children being exposed to less of the mother's "disruptive behaviour" that he claims occurs at exchanges.

[80] Justice Waldman specifically ordered the pick-up and drop off of the children to take place at the mother's home despite the conflict between the parties that has taken place in the presence of the children. It is apparent from the Reasons for Judgment that Justice Waldman made this order because of her finding that the father is "chronically late when picking up and returning the children" and that he does not follow court orders. Justice Waldman wrote that when crafting the father's access schedule, her Honour considered the "history of lack of communication and of difficulties at access exchanges" and the father's "history of returning the children late from access visits". The father's inability to comply with court orders and his failure to return the children on time led Justice Waldman to include punitive provisions in her Honour's order in the event the father was late picking up or dropping of the children. [9]

(iii) Mother's Alleged Disruptive Behaviour at Access Exchanges

[81] With respect to the father's claims that the mother is engaging in "disruptive behaviour", I considering the following:

(a) The father requests pick up and drop off to take place at school to eliminate the possibility of disruptive behaviour in front of the children but provides no specific examples of the mother's "disruptive behaviour" at exchanges;

(b) The father provides no emails or letters from counsel describing the mother's "disruptive behaviour";

(c) The father has not been permitted to attend at the mother's home for over 3 years and would therefore not have witnessed the mother's behaviour at all at exchanges since that time; and,

(d) None of the father's family members who assist with the exchange of the children swore an affidavit attesting to the mother's "disruptive behaviour" at exchanges.

[82] As the father's family has done the majority of the pick-up and drop off of the children since September 2014, there is no evidence before the court that suggests there has been a material change in the father's ability to be on time to pick up and drop off the children. Furthermore, as the father is prohibited from having contact with the mother until July 2018, there appears to be little potential for the children to see their parents together and witness any inappropriate behaviour by either of them. The mother argues that the parents do not have to have contact at access exchanges as the children are old enough to walk to and from her home to the father's car on their own.

[83] The parties agree in their affidavit evidence that the children prefer to go home after school on the Friday before they spend the weekend with their father to organize for the weekend. This is undisputed evidence that the children prefer the schedule the way it is, that the order is meeting their needs and there is no material change in that regard. The lack of evidence of any conflict at exchanges at least since September 2014 and no evidence to support the father's contention that the current arrangement is not meeting the children's needs, demonstrates that this concern of the father's is not a material change in circumstances.

(iv) School Absences

[84] The father claims in his affidavit that the children miss too much school, which, according to him, amounted to 10% of the last school year. While he does not say so, the court assumes the father is alleging that the mother is not meeting the children's academic needs. C.B.'s final report card for the 2016-2017 school year shows 15 absences while B.B.'s shows 18.

[85] The mother explains that the children's absences during the 2016-2017 school year include missed school around the time of her mother's funeral and a family vacation with her father in November 2016 after her mother's death. The mother's position is that the school absences are not excessive.

[86] In L.L. v. M.C., 2016 ONSC 3817, Justice Glustein was asked to consider school lateness and absences, in part, to be a material change in circumstances that necessitated an order for the father to have increased parenting time. Justice Glustein notes that the absences are explained by medical appointments and the lates were explained by the difficulty the mother had getting the child to physically enter the school. Justice Glustein noted at paragraph 57, "These parenting decisions do not alter, in a fundamental way, L.L.'s ability to meet J's needs" and "Attributing better parenting skills to school timeliness without evidence supporting such a finding would be speculative, unless there was evidence of an inability or unwillingness of a parent to encourage his or her child to attend school."

[87] The evidence that C.B. missed 15 days of school in 2016-2017 and B.B. missed 18, on its own or combined with the other evidence does not support a finding that the mother is unable to meet the children's academic needs in a fundamental way creating a material change in circumstances.

(v) Financial Benefits of Increased Access

[88] The father argues that he should share in the child tax benefit as the mother's wealth, in his opinion, makes it "unethical" for her to receive this benefit and he will invest the funds for the children's education. In order for him to be entitled to the child tax benefit, he advises that he must have one or both children in his primary care. The father also argues that if the children spend more time with him he will be entitled to other government benefits and financial assistance that will ultimately benefit the children.

[89] Needless to say, the father's entitlement to enhanced financial benefits if he has care of the children for longer periods of time would hardly be a basis for a court to change a custody or access order. If that were the case, the court would be flooded with Motions to Change access. The father's ability to collect additional government financial assistance is not a factor for the court to consider pursuant to section 24 of the Children's Law Reform Act, when determining what custody or access order is in a child's best interest. Therefore, this does not amount to a material change in circumstances warranting a review of the order.

(vi) The Mother Does Not Provide the Father with the Children's Passports Which Disrupts His Access

[90] The father alleges that the mother interferes with and disrupts his access to the children by not providing him with their passports upon request. The mother's evidence is that she only provides the father passports when he requires the passports and complies with Justice Waldman's order which requires him to provide her with a detailed itinerary of his travel at least four weeks before he travels with the children. The mother deposed that the father began requesting the passports before every visit, including his mid-week visit for 3.5 hours, without complying with the notice requirements of the order.

[91] The mother's evidence includes an exchange of letters between the parties' lawyers addressing, in part, the father's request for the children's passports. There is also an email exchange between the parties on this issue. What is clear from the evidence is that the father is advised that he will receive the children's passports if he complies with the terms of Justice Waldman's order. In fact, the father was furnished with the passports in February 2014 and did not return the passports to the mother until April 2014.

[92] The issue of the exchange of the children's passports raises the same concerns for the court as the issue of make-up access. The father cannot manufacture a situation which may cause the mother to act contrary to the court order and then claim that her conduct amounts to a material change in circumstances. The father did not provide evidence that he was denied the children's passports when he had a legitimate need for them and where he complied with the notice requirements set out in the order. Furthermore, the changes the father is seeking to the order are disproportionate to the allegations of noncompliance by the mother and do not address the issue he has raised. Therefore, this issue too does not amount to a material change in circumstances that impacts on the best interests of the children.

(vii) The Mother is Gender Biased and Does Not Spend Enough Time and Money on the Parties' Son

[93] It is the father's position that as the mother enrolled C.B. in a private school and withdrew B.B. from a private school, she is gender biased. He also argues that his theory is supported by the fact that the mother, who owns and operates the dance studio C.B. competes for, spends much more of her time and focus on C.B. than B.B. He also points to the fact that while the mother had C.B. christened her failure to do the same for B.B. is evidence of her bias. The father believes that the unequal amount of time and resources the mother contributes to C.B. is "damaging" B.B.

[94] Here is a summary of the evidence provided about B.B. according to the father:

(a) The father has enrolled B.B. in skateboarding, wakeboarding and snowboarding;

(b) B.B. is studious;

(c) B.B.'s confidence grew dramatically during the 2015-2016 school year when he attended a private school;

(d) B.B. makes acquaintances easily;

(e) B.B. takes 3 dance classes at the mother's studio; and,

(f) B.B. plays soccer.

[95] In an email from the father to the mother dated June 2, 2017, attached as an exhibit to the father's affidavit, the father describes C.B. at "caring, fair, loving, obedient and respectful of the rules".

[96] The following is a summary of B.B.'s June 2017 final Grade One report card from [ … school]:

(a) B.B. received a "good" grade in "Responsibility", "Initiative", "Self-Regulation", and "Collaboration" and a "satisfactory" grade in "Independent Work" and "Organization";

(b) B.B. received letter grades of C's and B's in language, mathematics, science and technology, social studies, health and physical education and the arts;

(c) B.B. shows kindness to others, shares, takes turns and shows empathy towards his peers;

(d) B.B. is always eager to help others but his "sociability" distracts him from his work;

(e) B.B. takes pride in his work and puts forward his best effort;

(f) B.B. needs to work on starting his work promptly and staying focused on his work until it is completed;

(g) B.B. is motivated and willing to take risks in his learning; and,

(h) B.B. takes on a leadership role when in small groups and respects the opinions of others.

[97] B.B.'s teacher wrote on his final report card for the 2016-2017 year, "It has been delightful working with B.B. this year and seeing how much he has grown academically, socially, personally and physically! B.B. is promoted to Grade Two."

[98] There is no evidence before the court to substantiate the father's claims that the mother mistreats B.B. in any way. While the father did not give the court an in depth description of B.B. or provide any evidence to support his claims that he was being treated differently by his mother such that he is suffering or "damaged", B.B.'s report card describes a happy, confident, social and caring boy.

[99] The father's claims that the mother is gender biased is a theory for which he has provided absolutely no evidence. The father is unable to show a material change in circumstances exists based on his unsupported theory that the mother treats the children differently and B.B. is suffering as a result.

[100] There is no evidence of any "damage" to the children. Despite the father's claims in his affidavit, there is no evidence that either child suffers from or displays anxiety.

[101] The mother provided a clear and reasonable explanation for why she enrolled C.B. in private school and returned B.B. to public school after one year of private school. As the custodial parent, she argues she is entitled to make these decisions and believes she has done so in a thoughtful and informed manner. She also agreed in 2014 to the father arranging for B.B. to be christened but he has not done so.

Part Five - Conclusion

[102] It is important to reiterate that Justice Waldman specifically states in her Reasons for Judgment that:

(a) The parties are unable to communicate with each other at all;

(b) The parties have argued repeatedly about the access schedule;

(c) The parties have argued about travel and travel documents;

(d) The have argued and had conflict in front of the children both at access exchanges and in the community;

(e) There have been numerous calls to the police;

(f) The father frequently disobeys court orders; and,

(g) The mother complies with court orders.

[103] The father wishes to re-litigate many of the issues that have already been decided by Justice Waldman. He has not produced any evidence to suggest that anything has changed since Justice Waldman made the above noted findings such that the final order should be re-visited. He raises the same complaints and concerns that were considered and dismissed by Justice Waldman following a 6 day trial.

[104] The father has not provided any evidence as to how the children's needs have changed since the previous court order. His evidence is focused entirely on himself and not the children and how they would benefit from the variation he is seeking.

[105] The father has not provided the court with any evidence to establish that the children's needs are not being met by the current order or that the variation he is seeking would address any of the issues he has raised. He makes many broad, sweeping allegations but provides no evidence to support these statements whatsoever.

[106] The father's request for increased and equal time with the children stem from his desire to have the children in his care equally, not from any needs of the children not being met by the current court order.

[107] None of the changes presented by the father have altered either child's needs in any fundamental way or the parent's ability to meet their needs. Many of the facts presented by the father existed at the date of the previous order. Even if the facts alleged by the father today did not exist at the time of the previous order, the evidence does not support the father's position that the previous order would likely have been different.

Part Six – Expanded Fact Finding Powers

6.1 Should I Be Wrong and There is a Genuine Issue Requiring a Trial, Would the Court's Enhanced Powers Allow the Issue to be Resolved on a Summary Judgment Motion?

[108] Although I have found that there are no genuine issues raised in the father's Motion to Change in relation to custody and access requiring a trial, I will proceed to apply the test set out in Hryniak, in the event that I am wrong and there are in fact genuine issues raised by the father. If the father had in fact raised a genuine issue requiring a trial, the court must then determine if activating the expanded powers granted by Rule 16 of the Family Law Rules to weigh the evidence, evaluate credibility, draw inferences, and if necessary, hear oral evidence on the motion would resolve the genuine issue without the need for a trial. Utilizing the expanded powers granted to the court is in the interests of justice if doing so will lead to a fair and just result.

6.2 Weighing the Evidence

[109] As stated above, the father's evidence is composed of broad statements, theories and speculation. Conversely, the mother's evidence provides explanations, dates of occurrences, email exchanges between the parties, letters between lawyers and the children's report cards to corroborate her evidence. In some circumstances the father admits to or agrees with the mother's version of events; in others he does not deny her version. The mother's evidence is detailed oriented whereas the father's evidence is full of unsupported and outlandish statements. For these reasons the mother's evidence carries much more weight with the court then the father's evidence.

6.3 Assessing Credibility

[110] On the issue of credibility, the court does not have to dig deep into the affidavit evidence to make a finding on credibility. The father's credibility was devastated by the following false statements contained in his affidavit:

(i) The father deposed that Justice Waldman wrote in her Reasons for Judgment that "The applicant does not respect the respondent's access time with the children and sees fit to do what she wants when she wants." Justice Waldman in fact did not make this statement or any similar statement in her Reasons for Judgment. In fact, to the contrary, her Honour wrote in her Reasons for Judgment, "I also do not accept father's position that he has had to be aggressive and vigilant because mother is attempting to marginalize him and minimize his role in the children's lives. I note that mother has given father more access than required by the court order of Justice Murray."

(ii) In his affidavit in support of his request to dismiss the mother's Summary Judgment Motion, the father addressed the outstanding criminal charges resulting from the dispute he had with the mother at her home in 2014. The father deposed,

"The criminal pre-trial took place on July 29, 2017. On that day, it was agreed by the Crown that they would hold the trial in abeyance pending the outcome of these family court matters. Part of the delay in dealing with the criminal matter was because the applicant had tried to negotiate a Curbside Pick Up and Drop Off as part of the Peace Bond, and this was not agreeable to me."

The father's sworn statement was made on August, 30, 2017, a month after he attended at the criminal pre-trial and the charges were in fact dropped on the basis that the father enter into a peace bond that restricts his contact with the mother for 12 months.

The court sees the father's actions as, at best, a blatant attempt to mislead the court as he understands that a restriction on his ability to communicate with the mother is an impediment to obtaining joint custody.

[111] There are also several instances of attempts by the father to mislead the court in his evidence. For example, in support of his position that the mother interferes in his access he includes a letter from a lawyer he consulted in October 2015 addressed to counsel for the mother in which it is alleged that the mother is refusing to allow the father access to C.B. on a Friday P.A. day as per Justice Waldman's order. What the father did not acknowledge in his affidavit and which was clarified by the mother's reply affidavit is that the father was mistaken and the Friday in question was in fact not a P.A. day and therefore not a day in which the father would have C.B. in his care.

[112] The father included as evidence that the mother is interfering with his access her request to cancel his access for C.B. to attend a friend's cottage without including the email exchanges between the parties in which his agreement was requested but which he refused to provide until the mother agreed to his 9 mostly unrelated demands.

[113] The father claims in his affidavit that he agreed to cancel his Thanksgiving weekend access with the children in 2016 following the sudden death of the maternal grandmother when it is clear from the documentary evidence that he did not in fact agree. As a result, the mother's lawyer, who was out of the country, had to communicate with the father's lawyer to address the issue as the father was opposing the cancellation of his visit.

[114] The father's evidence contains many outlandish statements and conclusions that are not based on factual circumstances and which are readily dismissed outright by the court. The father's blatant disregard for and manipulation of the truth in his affidavit evidence irreparably damaged his credibility. As a result, where the parties' version of events differ, the court accepts the mother's version over that of the father.

6.4 Drawing Inferences from the Evidence

[115] The affidavits sworn by the parties cannot be categorized as the standard "he said, she said" where the court is unable to determine where the truth lies without oral evidence. The father makes sweeping statements, whereas the mother provides details and explanations. For example:

(a) The father claims the mother unilaterally cancels his visits. In response the mother has a reasonable explanation for each cancelled visit which include her mother's sudden death and a modelling job for B.B. The mother points out that other alleged cancellations did not occur as the dates provided by the father were actually her regular weekend and vacation time chosen in accordance with the court order.

(b) The father says the mother does not cooperate to schedule make-up access when a visit is cancelled. He provides no dates, details or emails to support his statements. In response the mother provides documentary evidence to demonstrate that she offers make-up visits and the father either does not respond or tries to piggy-back new demands onto their negotiation for make-up access which she will not agree to.

(c) The father claims the mother did not facilitate access over the Canada Day long weekend but failed to explain that this occurred as a result of his failure to provide the mother with his summer vacation days by March 15th as the court order requires. By failing to do so, the mother changed her vacation days and some of the children's camp weeks in order to facilitate the summer vacation requests made late by the father which resulted in her having the children over the Canada Day long weekend, as part of her summer vacation time with the children.

(d) The father claims the mother does not comply with the order but fails to recognize his failures to comply with the court order when he did not return the children's passports to the mother because he "forgot" and when he left the children at Starbucks at the end of his visits to be retrieved by the mother when his parents were not available to facilitate the drop off.

(e) The father claims the mother does not provide him with the children's passports when he requests them. The mother provides examples of occasions when she did not provide the father with the passports because his request did not comply with the very clear conditions he is required to follow pursuant to Justice Waldman's order before he will be furnished with the passports.

(f) The father claims that the mother uses the court order "as a mechanism to control, agitate, enforce, and rationalize behaviour that is disruptive to my relationship with the children" when that is exactly what his behaviour is designed to do. He created conflict when the maternal grandmother died and when C.B. had a graduation party which affected his visits; he tried to obtain additional access and other demands when C.B. asked to cancel a visit to go to a friend's cottage; and, his conduct around scheduling vacations and make-up access is so problematic that lawyers often had to become involved to resolve the impasse. Contrary to the father's allegations, the evidence demonstrates that the mother has tried to rely on the court order to reduce the conflict between the parties.

(g) The father included in his list of access unilaterally cancelled by the mother the 2016 Thanksgiving long weekend. The mother's evidence is that she cancelled this weekend visit due to the sudden death of her mother. While the father includes this visit as one that was unilaterally cancelled by the mother, he also deposed that he agreed to the cancellation of this visit. In fact, the father did not agree to the cancellation of this access and the mother had to involve her lawyer. In response to the mother's request to cancel the access, the father sent the mother an incredibly insensitive email in which he wrote, "although I recognize it is a difficult time [to] make the best personal decisions and have a clear head, your decision raises several immediate concerns". He goes on to chastise the mother for not fulfilling C.B.'s wish for all four of her grandparents to attend Grandparents Day at [ … school] together before the death of her mother made it impossible and wrote, "It breaks my heart that C.B. will never be able to have this experience because your family spend [sic] considerable effort to influence a situation where my parents could not attend Grandparents Day at [ … school] alongside your family."

(h) The father included a day C.B. had a graduation party in his list of examples of the mother unilaterally cancelling his access.

(i) The father alleges the mother is the source of most of their conflict but the evidence shows that whenever the parties have to engage in communication to schedule make-up visits or vacation time, the father uses the opportunity as an attempt to renegotiate access, increase access or change the access as ordered by the court. The email the father sent the mother in June 2017, with 9 conditions she was required to satisfy before C.B. could spend a weekend at a friend's cottage during which she was scheduled to be in her father's care is extraordinarily convincing evidence that supports the mother's version of events.

(j) The father claims the children are suffering as a result of the parties' conflict and what he calls the mother's "disruptive behaviour" but provides no evidence of the mother's disruptive behaviour or the children's suffering.

(k) The father alleges that C.B. suffers from "unnecessary anxiety" caused by the parties' conflict plagued relationship but provides no evidence to support his statement.

(l) The father claims the children's needs have changed since the date of the order as a result of their getting older and being in full time school but does not provide any evidence as to how they have changed.

(m) The father devotes a lot of time to his argument that allowing him to pick up and drop off the children at school will address his concerns around the mother unilaterally cancelling the father's visits and not cooperating to provide him with make-up access but fails to address in any meaningful way how his proposed change will correct the problem.

(n) The father claims the mother causes conflict at access exchanges but the father has not been permitted to attend at the mother's home for exchanges since September 2014.

[116] If any one of the father's alleged changes in circumstances is material and creates a genuine issue, I find that a trial is not required as the use of the expanded powers granted by Rule 16 of the Family Law Rules allows the court to adjudicate the father's Motion to Change without the need for a trial. After weighing the evidence, evaluating credibility, and, drawing inferences, I conclude that none of the changes raised by the father are material and as such do not affect the best interests of the children. The order of July 25, 2013 should not be interfered with.

[117] The Applicant's motion for Summary Judgment is granted. The Respondent's Motion to Change the custody and access provisions of the order of Justice Waldman dated July 25, 2013 is dismissed.

Part Seven – Future Litigation

7.1 Leave to Bring Any Further Motions to Change the Custody and/or Access Provisions of the July 25, 2013 Order

[118] This is the father's second Motion to Change since the final order of July 25, 2013. Neither motion raised a genuine issue or a material change in circumstances affecting the children's best interests. The mother should not be forced to re-litigate the same issues over and over again. The father will be required to persuade the court that there are grounds to commence a Motion to Change in the future before he will be permitted to issue and serve another Motion to Change.

[119] Pursuant to subrule 14 (21) of the Family Law Rules, the father cannot bring any further court proceedings in this court without prior leave of the court. Any motion for leave must be filed with the court by Form 14B. It is to be a maximum of 3 pages. The father should not serve the mother with this material. The court will determine if leave is to be given, prior to notification being given to the mother.

Part Eight - Costs

[120] The mother was successful on this motion and presumed to be entitled to her costs of the motion.

Order

1. The mother's Summary Judgment Motion is granted.

2. The father's Motion to Change the custody and access provisions, including all incidents of custody and access, of the order of Justice Waldman dated July 25, 2013 is dismissed.

3. The father's Motion to Change the child support provisions of the July 25, 2013 order shall be adjourned to a date to be fixed by the trial coordinator after the issue of costs has been decided by the court.

4. The mother shall serve and file her written costs submissions in relation to the Summary Judgment Motion and the Motion to Change the final order in relation to custody and access only, no later than December 18, 2017. The submissions shall be no more than 3 pages not including attachments and a Bill of Costs.

5. The father shall serve his response to the mother's costs submissions by January 15, 2018. The submissions shall be no more than 3 pages not including attachments.

6. The mother shall serve and file her Reply to the father's response to the costs submissions by January 31, 2018 and such submissions shall be no longer than 2 pages.

7. The court date of December 19, 2017 is vacated. Another date will be scheduled by the trial coordinator's office once the issue of costs of the Summary Judgment Motion and Motion to Change custody and access has been adjudicated.

Signed: Justice Melanie Sager