Court File and Parties

Court File No.: D25463/04 Date: December 11, 2018 Ontario Court of Justice

Between:

R.J. Applicant

— AND —

B.R.J. Respondent

Before: Justice Melanie Sager

Heard on: November 27th and 28th, 2018

Reasons for Judgment released on: December 11, 2018

Representation

• R.J. — on his own behalf
• B.R.J. — on her own behalf
• Cathy Smuk for the Office of the Children's Lawyer — for the child K.J.

Introduction

[1] This is a Motion to Change brought by the Respondent (mother) and cross motion by the Applicant (father) which were heard on November 27th and 28th, 2018.

[2] Both mother and father attended at the hearing and represented themselves.

[3] The youth, K.J. born […], 2004 (14 years old), who is the focus of the hearing was represented by Cathy Smuk of the Office of the Children's Lawyer (OCL). Ms. Smuk was assisted by Karen Guthrie-Douse, a clinical investigator appointed by the OCL.

[4] The mother seeks to change the final order of Justice Stanley Sherr dated October 13, 2016, granting the father custody of K.J. and the mother reasonable access, subject to K.J.'s wishes, including no access, or supervised access, if the child chooses this.

[5] The mother seeks an order granting her custody of K.J. for a period of three months so that she and K.J. can attend reintegration therapy. Upon completion of reintegration therapy, the mother expects the parties to share joint custody and shared parenting of K.J.

[6] The mother also requests changes to the child support order made by Justice Sherr requiring her to pay child support of $450.00 per month to the father for K.J. based on an imputed annual income of $50,000.00 and the Child Support Guidelines.

[7] In her Motion to Change documentation the mother asks that child support for K.J. terminate effective January 2016, and, an order fixing arrears of child support at zero. At the hearing the mother asked for her child support to be reduced retroactively based on her actual income as opposed to the $50,000.00 annual income imputed to her by Justice Sherr.

[8] The father filed an affidavit sworn February 18, 2018 in response to the Motion to Change in which he asks for the mother's motion to be dismissed in its entirety. At the hearing the father asked the court to impute income to the mother of $60,000.00 per year and vary her child support obligation in accordance with the Child Support Guidelines effective January 1, 2019.

[9] K.J. is represented by the OCL who took the position at the hearing that Justice Sherr's order in relation to custody and access should not be varied as K.J. does not wish to engage in therapeutic or reintegration therapy with her mother or have any contact with her at this time.

[10] The court relied on the following documents and affidavit evidence filed in advance of the hearing:

(a) Mother's Motion to Change filed January 19, 2018, found at Tab 1 of Volume 15 of the Continuing Record;

(b) Mother's Affidavit sworn November 11, 2017, found at Tab 2 of Volume 15 of the Continuing Record;

(c) Mother's 35.1 Affidavit in Support of Claim for Custody or Access sworn January 19, 2018, found at Tab 3 of Volume 15 of the Continuing Record;

(d) Mother's Financial Statement sworn January 19, 2018, found at Tab 4 of Volume 15 of the Continuing Record;

(e) Mother's affidavit sworn September 4, 2018, found at Tab 7 of Volume 15 of the Continuing Record;

(f) Mother's affidavit sworn November 9, 2018, found at (the second of two) Tab 8 of Volume 15 of the Continuing Record;

(g) Father's Affidavit in response to mother's Motion to Change sworn February 15, 2018, found at Tab 5 of Volume 15 of the Continuing Record;

(h) Father's affidavit sworn November 13, 2018, found at (the first of two) Tab 8 of Volume 15 of the Continuing Record; and,

(i) Affidavit of Clinical Investigator, Karen Guthrie-Douse sworn October 10, 2018, filed with the court on October 11, 2018.

[11] At the hearing both the mother and father were subjected to cross examination. In addition, both parties had the opportunity to cross examine Ms. Guthrie-Douse, which the mother did. Finally, in reply to the father's case, the mother gave reply evidence and called the father's current partner, D.B. as a witness in reply.

Background

[12] There is a long history to this case. The parties have been in litigation on and off since 2004, the year K.J. was born. Following a lengthy trial between August and October 2009, the mother was granted custody of K.J. and the father access pursuant to the order of Justice Marvin Zuker dated December 15, 2009.

[13] The parties were next involved in litigation in 2010 with respect to whether the mother could change K.J.'s name and child support. The parties were also in court in 2010 on emergency motions to deal with access issues.

[14] On December 24, 2010, Justice Sherr released an endorsement addressing the access issues and made a very detailed order. Justice Sherr described the case as high conflict and noted that the parties "have been actively litigating with each other since January of 2006."

[15] On December 24, 2010, Justice Sherr ordered that neither party was permitted to bring any further court proceedings without leave of the court.

[16] An urgent motion brought by the mother in March 2012 resulted in an order requiring the police to assist in having K.J. returned to her care.

[17] In 2014 the Catholic Children's Aid Society of Toronto (CCAS) became involved with the family. After a lengthy period of involvement by the CCAS which included the child being in the society's care for approximately a year between December 2014 and January 2016, custody of K.J. was varied by Justice Sherr on October 13, 2016 from the mother to the father. As stated above, the mother was granted reasonable access at K.J.'s discretion. This is the order that the mother is now seeking to vary.

[18] Justice Sherr gave an oral decision following the hearing of this matter on October 11, 2016. The transcript of the oral decision is before the court on this Motion to Change. The findings made by Justice Sherr on that hearing provide the starting point for the court on this Motion to Change when determining if there has been a material change in circumstances with respect to custody and access and a change in circumstances within the meaning of the Child Support Guidelines with respect to child support.

Custody and Access

[19] Justice Sherr made the following findings of fact to support an order varying custody of K.J. from the mother to the father:

(a) K.J. is doing very well in the father's care where she has made significant emotional gains since being removed from the mother's care.

(b) The father and his partner, D.B. have been proactive in attending to the child's emotional, medical and schooling needs. The child has greatly improved in school.

(c) The father and D.B. appear to have a supportive and stable relationship. This is important as K.J. needs stability and peace to feel secure and meet her potential.

(d) The mother does not have a realistic plan for K.J. for the foreseeable future. Their relationship has been seriously damaged.

(e) The mother has had no contact with K.J. for almost one year.

(f) The mother chose not to have access with K.J. from October 31, 2015 to April 14, 2016.

(g) K.J. has expressed consistent views and preferences to live with her father and not see her mother.

(h) K.J. has an understandable estrangement from the mother as a result of the following:

(i) K.J. was apprehended due to significant protection concerns about the mother. The protection concerns that led to the apprehension were almost entirely due to the mother's conduct.

(ii) K.J. did not feel emotionally safe in the mother's care.

(iii) The mother struggled with her emotional regulation in front of K.J., exploding with anger.

(iv) The mother struggled with her emotional regulation with society workers and the school, also exploding with anger.

(v) The mother has a volatile temper. She loses her temper quickly and makes inappropriate comments.

(vi) The mother has almost a complete lack of insight about her role in the emotional damage her conflict with the father has had on K.J. She attributes the breakdown in her relationship with K.J. to parental alienation, when the evidence is that the breakdown is primarily due to her own conduct.

(vii) The mother is quick to blame others for her damaged relationship with K.J. It is unlikely she will make any progress in her relationship with K.J. until she is able to take responsibility for her conduct. Unfortunately it might already be too late.

(viii) The mother has been ambivalent about obtaining services to address her own issues and her issues with K.J., despite considerable efforts by the society to engage her. She refused assistance/counselling through the Griffin Centre until it was too late.

(ix) This is not a case of parental alienation as alleged by mother. There is a justifiable estrangement between K.J. and her mother quite independent of the father. The father was also supportive of counseling at Griffin Centre, which could have addressed K.J.'s relationship with the mother. The mother rejected this.

(x) The court finds that the father is much better suited at this time to attend to K.J.'s emotional, mental and physical needs.

(xi) K.J. is a child who requires services and decisions made about her in a timely basis. The parties are incapable of communicating with each other. It is in K.J.'s best interests to grant the father sole custody.

(xii) K.J. is not ready for a reintegration process. When she was ready, the mother rejected the process. Any benefits of ordering therapeutic access, reintegration therapy at this time are significantly outweighed by the detriments to K.J. There is a risk of causing her further emotional harm, risks undermining her stability, risks increasing her anxiety and fear level, and sends the message that her legitimate feelings are not being respected.

[20] Justice Sherr strongly suggested to the mother to engage in "significant therapy to gain greater insight into her role in the complete breakdown of their relationship. It would be a good idea to send K.J. cards and letters; an apology to K.J. would be a good start."

The Law - Legal Considerations with Respect to Motions to Change Custody and/or Access

[21] Section 29 of the Children's Law Reform Act sets out that parenting orders cannot be changed unless there has been a material change in circumstances affecting the best interests of the child. The material change threshold must first be met. Only then, does the court consider what new order is in the child's best interests.

[22] 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."

[23] At paragraphs 14-17, 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, 52 R.F.L. (6th) 239 (Ont. C.A.).

[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).

[24] 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.

[25] 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), 21 R.F.L. (3d) 92 (Ont. C.A.). 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 (Man. Q.B.).

[26] 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), 38 R.F.L (4th) 96 (Ont. Gen. Div.).

[27] 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), 26 R.F.L. (5th) 433 (Ont. C.A.).

[28] The mother bears the onus on the Motion to Change to establish that there has been a material change that has altered K.J.'s needs or the ability of either parent to meet those needs in a fundamental way such that the final order must be reviewed.

The Evidence on the Motion to Change

The Mother's Relevant Evidence

[29] The mother's evidence on the Motion to Change custody and access can be summarized as follows:

(a) K.J. has been the victim of parental alienation caused by her father and his partner D.B.;

(b) The court was wrong for removing K.J. from her care and ultimately granting custody to the father as her visits supervised by the CCAS were positive;

(c) K.J.'s refusal to see her has caused the mother untold pain and suffering that no parent should have to endure;

(d) The mother has suffered from depression as a result of K.J. being wrongfully removed from her care;

(e) A collateral effect of K.J. not enjoying a relationship with her mother is that she also has not seen any of her maternal family;

(f) The mother saw a psychiatrist for a year to address the loss of her daughter from her life;

(g) The mother has consulted professionals including Dr. Barbara Jo Fidler to obtain information about parental alienation and reintegration therapy;

(h) The mother sees no way to a reconciliation with K.J. other than reintegration therapy as the father and D.B. do not support K.J. having a relationship with her;

(i) The mother did not send K.J. any cards, letters or gifts since Justice Sherr's order as she did not believe the father would give them to K.J.;

(j) The mother spent the last year and a half in therapy and reached the conclusion that the reason she has not had contact with K.J. for three years is because the father does not want K.J. to have a relationship with her;

(k) The father's hatred for the mother has rubbed off on K.J. and the only way to deal with it is through reintegration therapy;

(l) K.J. will only be able to enjoy a relationship with her when the father allows her to; and,

(m) The mother acknowledged contributing to the estrangement from K.J. by fighting with the father especially when he called police or the CCAS.

The Father's Relevant Evidence

[30] The father's evidence can be summarized as follows:

(a) K.J. does not wish to have contact with her mother or engage in therapy with her;

(b) The mother has not changed at all and her behaviour in court demonstrates this;

(c) The mother does not accept any responsibility for her role in her estrangement from K.J.;

(d) As the mother does not accept any responsibility for what she did, it is impossible for her to fix something she does not acknowledge needs fixing;

(e) He does not speak badly of the mother to K.J. and he does not allow K.J. to speak disrespectfully of her mother;

(f) He supports K.J. having the right to decide whether to have a relationship with her mother as Justice Sherr gave her that right for good reason;

(g) He has had many conversations with K.J. to ensure she knows that if she expressed a desire to see or speak to her mother he would support and facilitate such contact;

(h) The mother has only called to speak to K.J. twice in two years and has not sent a single card or gift to K.J.;

(i) K.J. was visibly upset after speaking to her mother on her 14th birthday in […] 2018;

(j) The mother's family has not had contact with K.J. and she feels abandoned by them;

(k) The mother has not been able to acknowledge her role in the situation with K.J. because she does not believe she did anything wrong;

(l) The father is hopeful that one day K.J. and her mother will have a relationship but that this will not happen if the mother does not change;

(m) The father has done nothing to impede the mother from having a relationship with K.J. and in order for that to happen she must take positive steps which include apologizing to K.J. and taking ownership of what she has done to cause the rift in their relationship;

(n) Despite his encouragement, K.J. still refuses to have contact with her mother and does not wish to engage in counselling with her mother.

(o) The mother's failure to apologize to K.J. as per Justice Sherr's suggestion has not helped the mother's cause; and,

(p) The father has to respect his daughter's wishes in regards to contact with her mother.

[31] The father's evidence is that K.J. is "very well adjusted and active with a close network of very good friends." The father also provided evidence that K.J. is now in a gifted program at school.

[32] In her June 2017 final grade 7 report card, K.J.'s teacher writes glowingly about K.J. as follows:

[K.J.] has had a very productive year. She is an enthusiastic learner who enjoys school and exhibits a positive outlook and attitude in the classroom…She is a reliable and dependable student who consistently hands in class work and homework on time. [K.J.] is committed to doing her best and always strives to reach her full potential... [K.J.] is an active and engaged learner… [K.J.] is cooperative and gets along well with other students. She is sensitive and responsive to the needs of others and respects the rights and property of her classmates… [K.J.] takes responsibility for and manages her own behaviour… [K.J.] is a pleasure to have in the classroom.

[33] In her June 2018 final grade 8 report card, K.J.'s teacher writes that "Overall, [K.J.] has had a good Grade 8 year in the Gifted Program. She has demonstrated a consistent academic standard for herself, and a willingness to improve as a student." [K.J.'s] grades on her final report card were between 77% and 86%, with 11 out of 14 grades being above 80%.

Evidence of the OCL

[34] The OCL appointed a clinical investigator, Karen Guthrie-Douse, to assist Ms. Smuk. Ms. Guthrie-Douse provided her evidence in chief in an affidavit. The OCL's evidence can be summarized as follows:

(a) K.J. was interviewed by the OCL clinical investigator on three occasions;

(b) K.J. declined a meeting with her mother and the investigator;

(c) K.J. is doing very well in her father and D.B.'s care;

(d) K.J. is doing very well in school where she is in the gifted program;

(e) K.J. is engaged in extracurricular activities;

(f) K.J. does not wish to have contact with her mother;

(g) K.J. does not wish to attend any type of counselling with her mother;

(h) K.J. would like the "court stuff" to be done;

(i) K.J. is happy in her life, she feels fulfilled and content;

(j) K.J. has peace in her life and does not want it disrupted by her mother or court proceedings; and,

(k) K.J.'s views and preferences were strong, consistent and independent.

[35] The OCL supports the father's position that there should be no change to Justice Sherr's order and more specifically, K.J. should not be ordered to attend therapy with her mother.

[36] The clinical investigator gave evidence that K.J. remains fearful of unwanted contact with her mother and she worries about her mother attending her school and extracurricular activities.

[37] The OCL's evidence is that K.J. "is happy with her life, she feels fulfilled and content. She is doing well academically and socially. She has peace in her life and does not want it disrupted by her mother or court proceedings."

Admissibility of K.J.'s Out of Court Statements

[38] A consideration of the mother's claim for custody of and access to K.J., requires the court to consider K.J.'s views and preferences pursuant to section 24(2)(b) of the Children's Law Reform Act.

[39] The rule of hearsay evidence provides that out of court statements made by nonparties, which are being proffered for the truth of their contents are not admissible unless the statements come within one of the exceptions to the rule.

[40] The statements K.J. made to the OCL clinical investigator as set out above, are statements relating to how she feels about contact with her mother, which is extremely relevant to the court given the statutory requirement to consider K.J.'s views and preferences in so far as they can be ascertained.

[41] Several of K.J.'s statements to the OCL clinical investigator of her views and preferences in relation to contact with her mother while hearsay are admissible as "state of mind" exceptions to the hearsay rule. See Children's Aid Society of Ottawa v. E.(S.) (2005), 139 A.W.C.S. (ed) 687.

[42] In determining how much weight to give to K.J.'s views and preferences, the court considers those views in the context of Justice Sherr's findings following the hearing in 2016 and K.J.'s age and level of maturity. As K.J. is almost 15 years old, her views and preferences are entitled to significant consideration.

Analysis of the Evidence in Relation to Custody and Access

[43] The mother's affidavit evidence on this motion reads as a very clear attempt to re-try the issues that were before Justice Sherr in 2016. It was very hard for the court to discern from the mother's affidavit evidence in chief what the she alleges amounts to a material change in the parents' or K.J.'s circumstances since the date of Justice Sherr's order.

[44] The affidavit sworn by the mother on November 11, 2017 in support of her Motion to Change details the wrongs she believes to have suffered as a result of what she describes as the CCAS's faulty investigations and the court's error in judgment. The mother details in great length where the CCAS and the court went wrong. She also describes the pain and suffering she has endured as a result of having no contact with K.J. for approximately three years.

[45] A review of the entire affidavit of November 11, 2017, reveals that almost all of the affidavit is dedicated to events and facts that occurred before the date of Justice Sherr's final order. One cannot demonstrate a material change in circumstances since the order of October 13, 2016 by relying on events and facts that predate the order.

[46] Nowhere in the mother's affidavit of November 11, 2017 does she demonstrate any understanding of or insight whatsoever into her actions that contributed to K.J.'s feelings about their relationship. She takes no responsibilities for her actions. What is also glaring is her focus on herself and her needs as opposed to K.J. Nowhere in the mother's evidence does she show that she has developed any understanding of the pain and suffering K.J. endured in large part because of her parenting.

[47] In her affidavit sworn November 11, 2017, the mother gives the following evidence at paragraph 41 which the court relies upon to demonstrate that nothing has changed in regards to the mother's behaviour or insight since the date of Justice Sherr's order of October 13, 2016:

"While I am the mother of [K.J.], I have not been allowed to fulfill that role for over two years. I have not been able to call her any time, I am not allowed to go to her school to see how she is doing, to attend any school activities. I have missed out of over 720 days of her life. She has lived that many days hating her own mother, and WHY?...I have been convicted of a crime and as my punishment I have been locked away from my child. My heart has been doing the time and I have suffered every day I feel that pain of knowing she is out there, but I am unable to contact her. I believe that [K.J.] has been imprisoned as well as she is unable to free herself from the heavy hold that the respondent and [D.B.] have over her. We, [K.J.] and I must be freed from this imprisonment we should have the right to love and be loved without interference. When will this happen?"

[48] A year after commencing her Motion to Change and filing the affidavit sworn November 11, 2017, the mother filed another affidavit in support of her Motion to Change sworn November 9, 2018. She attaches voluminous portions of the CCAS file all of which predates the October 13, 2016 final order.

[49] Once again the focus of the mother's affidavit is herself, more specifically, her pain and suffering as a result of being denied a relationship with her daughter. Paragraphs 5 to 12 of this affidavit are dedicated to refuting Justice Sherr's findings. Once again, the mother blames the father and D.B. for alienating K.J. from her.

[50] In her oral evidence, the mother was asked to point out in her affidavit evidence where she has taken responsibility for her role in the estrangement from her daughter. The mother's evidence is that she met with a psychiatrist for a year. When asked to describe what she saw a psychiatrist for, the mother said to address her pain and suffering from everything that has gone on. She also directed the court to her evidence of counselling she received from her Church Minister. When asked what they talked about, she said that they discussed how she could reconcile with K.J. and that the Minister wrote K.J. a letter on her behalf.

[51] The mother was unable to provide any meaningful evidence to the court to demonstrate a change in her behaviour or that she has developed insight into how her behaviour affected her daughter.

[52] The mother also went on at length about the several professionals she has met with to educate herself about parental alienation and reintegration therapy.

[53] Despite being given numerous opportunities to provide details of the steps she has taken to address her issues, the mother never once tied what she was doing or the steps she had taken to K.J. and her needs.

[54] The mother's oral evidence in cross examination did not assist her in demonstrating a material change in circumstances. In fact, the mother's oral evidence made it clear to the court that the mother did not accept Justice Sherr's findings and that she was seeking to re-litigate the same issues on the same evidence that existed in 2016.

[55] The mother's entire case is based on her belief that K.J. has been alienated from her by the father and his partner, D.B. The court had to remind the mother on multiple occasions that Justice Sherr found that K.J. was not alienated from her and that she was mostly responsible for their estrangement. The mother's affidavit and oral evidence was replete with references to evidence that predated the final order she is seeking to vary resulting in repeated direction from the court to call evidence since the date of Justice Sherr's order that supports her claim of parental alienation and a material change in circumstances.

[56] Nowhere in the mother's evidence does she describe the steps she has taken to understand how her behaviour contributed to the estrangement from her daughter. Nowhere in the mother's evidence does she demonstrate her understanding of the pain and suffering she has caused K.J. Nowhere does she describe at all what therapy or counselling she has engaged in to gain an understanding of how her behaviour has harmed her daughter.

[57] In cross examination the mother acknowledged that since the date of Justice Sherr's order she has not sent K.J. any cards, letters or gifts because she did not believe the father or D.B. would give the gifts to K.J. While the father and OCL's evidence is that the mother only called K.J. twice in the last two years, the mother's evidence is that she called many times but that her calls went unanswered or the father or D.B. hung up on her.

[58] When asked why she did not take Justice Sherr's suggestion to send K.J. a letter apologizing, the mother repeated her statement that she did not believe that the letter would get to K.J. so she did not send one.

[59] The mother's explanation for not calling or sending K.J. any letters, cards or gifts in the past two years is unacceptable. Her failure to do so sends K.J. an awful message that at best she is upset with or mad at her; and, at worst that she does not care about her.

[60] What was sadly apparent to the court after receiving the mother's testimony is that she has taken almost no responsibility for her actions and her contribution towards the state of her relationship with K.J. She is unable to articulate what she believes her role was in the estrangement from her daughter, other than arguing with the father, and how her behaviour affected K.J. She was unable to connect anything she did to her daughter's refusal to have a relationship with her.

[61] If the mother did engage in counseling or therapy to assist her in gaining insight into the cause of her estrangement from K.J., the evidence demonstrated that it was unsuccessful in assisting her to even begin to understand how she has hurt her daughter. She continues to blame everyone but herself for K.J.'s refusal to see her.

[62] It is also important to note that the mother displayed the lack of emotional regulation at this hearing that Justice Sherr found the mother demonstrated in her relationships with K.J., the CCAS and other professionals including school officials. The mother exuded anger and spoke with a raised voice throughout her cross examination and while cross examining the father. The tension emanating from the mother throughout the hearing was palpable.

[63] The father gave his evidence in a straightforward and thoughtful manner. He was genuine and sincere and remained calm and composed at all times. He responded appropriately when he was asked difficult questions. For example, when the mother asked him if he would bring K.J. to meet her and her Minister without telling K.J. he said he would not do that to her as that would be unfair to her. Rather he said he would talk to her about whether she was willing to meet with her mother and her Minister.

[64] The father remained child focused throughout his evidence. At no point was the court concerned that he has done anything to alienate K.J. from her mother since the order of Justice Sherr dated October 13, 2016.

[65] The clinical investigator also gave her evidence in a calm, thoughtful and child focused manner. The court heard no evidence that suggests it should reject the clinical investigator's evidence that K.J.'s views were strong, consistent and independent.

[66] Where the mother and father's evidence conflicted, the court accepts and prefers the evidence of the father.

Conclusion – Custody and Access

K.J.

[67] The evidence before the court is that K.J. has maintained the same views for three years and more specifically, the two years since Justice Sherr's order. She does not wish to have contact with her mother or to attend reintegration therapy. These are the same views K.J. held prior to the order of October 13, 2016. Therefore, there has not been a material change in K.J.'s views and preferences that make the order of October 13, 2016 no longer in K.J.'s best interests.

The Mother

[68] The mother argues that only a custody order and reintegration therapy will reunite her and K.J. She claims K.J. must be removed from her father's care as he does not support her having a relationship with her mother. This conclusion ignores the evidence of the mother's failure to maintain contact with K.J. over the last two years through letters, cards and gifts. Had she attempted to communicate with K.J., sent letters, cards and gifts as well as the apology letter suggested by Justice Sherr, the mother may have motivated K.J. to reconsider her position. Had she done these things it may have been the impetus for K.J. to contemplate reaching out to her mother. The mother took no positive steps since Justice Sherr's order to show K.J. that she has listened and understands her concerns and feelings and that she has done anything at all to change for the better so that they can enjoy a relationship.

[69] The mother is completely unable to consider either at the time or afterwards in hindsight, that anything she has done, such as her failure to send letters, cards or gifts to K.J. was wrong or hurtful or possibly had the effect of pushing K.J. further from her. She cannot see that her behaviour both before and after the date of Justice Sherr's order was incredibly counterproductive to her goal of reconciling with K.J.

[70] The evidence demonstrates very clearly that there has been no change in the mother's circumstances that amounts to a material change requiring a review of the custody and access provisions of the order. She has taken no concrete steps to address her personal issues that contributed significantly to the estrangement from her daughter. She has taken no responsibility for the state of her relationship with K.J. I agree with the father's submission that the mother does not believe she did anything wrong and therefore she is incapable of addressing aspects of her personality that caused the estrangement from K.J. Just like she did before Justice Sherr, the mother blames the father for her lack of a relationship with K.J. The evidence then and now does not support this conclusion.

[71] There has not been any change in the mother's insight about her role in the emotional damage her conflict with the father had on K.J. There has not been any change in the mother's ability to take responsibility for her conduct and understand how it impacted K.J. There has not been a material change in the mother's ability or willingness to obtain supportive counselling around her issues affecting her relationship with K.J. As a result, there has not been a material change in the mother's circumstances that makes the order of Justice Sherr dated October 13, 2016, no longer in K.J.'s best interests.

[72] As there has not been a material change in K.J.'s or the parents' circumstances that make the current order no longer in K.J.'s best interests, the mother's Motion to Change the custody and access provisions of Justice Sherr's order of October 13, 2016 must be dismissed.

Child Support

Legal Considerations

[73] The mother's motion to change child support is governed by subsection 37(2.1) of the Family Law Act which reads as follows:

Powers of court: child support

(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33.

[74] In paragraphs 51-60 of Trang v. Trang, 2013 ONSC 1980, the court discussed how courts should address motions to change support when income was imputed to a payor in the existing order as follows:

51. When a court imputes income, that's a determination of a fact. It's not an estimate. It's not a guess. It's not a provisional order awaiting better disclosure, or further review. It's a determination that the court had to calculate a number, because it didn't feel it was appropriate to rely on – or wait for -- representations from the payor.

52. A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent "declared" income. They must address why income had to be imputed in the first place. They must present evidence of changed circumstances which establish that either:

a. It is no longer necessary or appropriate to impute income. The payor's representations as to income should now be accepted, even if they weren't accepted before.

Or,

b. Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate.

53. If "declared income" automatically prevailed on a motion to change support, it would defeat the purpose of imputing income in the first place. It might even be a disincentive for payors to participate in the initial court process. They could simply ignore support Applications – as they often do. They could wait to see if the court imputes income, and how much. If dissatisfied with the amount, the payor could later return to court waving their tax returns, to suggest that the original judge got it wrong.

54. Support claimants should not be forced to go through this two-step process. Our family court system certainly can't afford it.

55. Similarly, the onus should not fall on the support recipient to establish why income should still be imputed on a motion to change. That determination has already been made. The onus is on the support payor to establish that there should be a change in the way their income is to be calculated.

56. If for example the original support order imputed income because the court concluded an unemployed payor should have been working, it would be illogical to allow the payor to extinguish that determination by returning on a motion to change, with proof that he wasn't working. That wouldn't constitute a change in circumstances.

57. If a trial judge imputed income to a self-employed person on the basis that their tax return didn't reflect cash sales and excessive write-offs, there should be a presumption that so long as the payor maintains the same business activities and accounting practices, subsequent tax returns will be equally unreliable.

58. Imputed income matters. The reason why income had to be imputed matters.

59. If an aggrieved party feels income was wrongly imputed, they can take timely steps to correct the original determination. They can appeal. They can bring a motion to set aside the order based on mistake or misrepresentation.

60. But if a payor proceeds by way of motion to change, they must face the presumption that the original order was correct – and the original imputation of income was correct. If they want to rely on their declared income, they must establish why this time their representations should be accepted by the court.

[75] The law was summarized by Justice Sheilagh O'Connell, who wrote in paragraph 38 of Nejatie v. Signore, 2014 ONCJ 653:

It is well settled law that, if income is imputed, then the issue will generally be res judicata on a motion to vary or change support. See: Bemrose v. Fetter, 2007 ONCA 637, 228 O.A.C. 311, 42 R.F.L. (6th) 13, [2007] O.J. No. 3488, 2007 CarswellOnt 5819 (Ont. C.A.). Although the court always has discretion with respect to the issue of res judicata and can consider fraud, fresh evidence, additional disclosure or issues of fairness, the principle of res judicata provides that generally, a matter cannot be re-litigated once it has been determined on its merits.

[76] The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the Child Support Guidelines and impute income. See: Smith v. Pellegrini, [2008] O.J. No. 3616, (Ont. S.C.); Maimone v. Maimone, [2009] O.J. No. 2140, (Ont. S.C.).

The Evidence

[77] On the hearing before Justice Sherr on October 13, 2016, his Honour ordered the mother to pay child support retroactive to January 1, 2016, on an imputed annual income of $50,000.00 and the Child Support Guidelines. In his Honour's decision, he notes that the mother deposed in her sworn financial statement that she earned $50,000.00 per year but that on the eve of trial she advised the parties and the court that she had stopped working due to stress and was in receipt of Employment Insurance Benefits. She said she would be applying for short-term disability benefits.

[78] Justice Sherr found that the "Financial disclosure of the mother was seriously deficient. She filed no income tax returns, no notices of assessment, no pay stubs, no medical evidence, no evidence that she had left work, no evidence about an application for short-term disability, about what income she is receiving."

[79] In deciding to draw an adverse inference from the mother's failure to provide even the most basic of financial disclosure, Justice Sherr found that "The mother knew the hearing of support was scheduled to be argued on October 11th, 2016, yet she filed no meaningful financial disclosure. She was able to file considerable material on the parenting issues, which showed a capability of addressing the financial issues, and a choice not to do so."

Financial Disclosure by Mother on This Motion to Change

[80] On February 23, 2018, the parties consented to an order requiring the mother to serve and file the following financial disclosure:

(a) a current sworn financial statement;

(b) copies of her complete income tax returns for 2014-2017;

(c) copies of her notices of assessments for 2015-2017;

(d) proof of her earnings to date in 2018;

(e) three current consecutive paystubs;

(f) if self-employed, copies of all bank accounts and credit card accounts from July 1, 2016 to date;

(g) records of employment from 2016 to date; and,

(h) T4s to confirm Employment Insurance Benefits from 2015 to date.

[81] The February 23, 2018 court order provides that the mother shall serve all of the documents listed in paragraph 80 above on the father and file same with the court at least 7 days before the next court date which was scheduled for May 28, 2018.

[82] On May 28, 2018, the mother was given an extension to comply with the disclosure order of February 23, 2018 until June 15, 2018.

[83] The mother never complied with the disclosure order that was made on consent. The following are the deficiencies in her financial disclosure on this hearing:

(a) The mother did not serve and file an updated sworn financial statement;

(b) The mother did not serve and file income tax returns for 2014 and 2015;

(c) The mother filed incomplete income tax returns for 2016 and 2017. Both returns show T4 income on line 101 but neither return has an amount entered at line 150 representing "total income";

(d) The mother did not serve and file T4s to support the incomes entered on line 101 of her 2016 and 2017 income tax returns;

(e) The mother began operating her own business in 2017 and earned revenue from The Goose and Firkin and S. Scott Investments but shows no income at all from self-employment on her 2017 income tax return;

(f) The mother's 2016 income tax return is actually a 2017 income tax return which has 2017 scratched out at the top of the page and "2016" written in by hand;

(g) The mother did not serve and file a single Notice of Assessment from 2014 to 2017;

(h) The mother gave evidence that she had previously received rental income but that she had her tenants evicted for failure to pay rent yet neither her 2016 nor 2017 income tax return shows any rental income;

(i) The mother did not serve and file any credit card statements despite disclosing that she has a VISA credit card on her May 24, 2018 sworn financial statement; and,

(j) The bank statements served on the father for the years of 2016 to 2018 do not disclose a bank name or account number and contain several entries that seriously bring into question whether the statements are authentic.

The Mother's Credibility

[84] In addition to the mother's failure to provide basic financial disclosure in support of her claim, the disclosure she did provide is extremely suspect and brings her credibility into question. On November 20, 2018, as part of her evidence for the hearing, the mother filed an affidavit sworn November 9, 2018, to which she attached a financial statement sworn May 24, 2018. Attached to the financial statement were the following documents:

(a) incomplete 2016 and 2017 income tax returns;

(b) one T4 for 2016 that did not match the income entered on line 101 of the mother's income tax return;

(c) one T4 for 2017 that did not match the income entered on line 101 of the mother's income tax return;

(d) a T4E or Statement of Employment Insurance Benefits for 2016;

(e) a Record of Employment from Chemtrade Logistics for 2016;

(f) a Record of Employment for Dart Canada Inc. for 2016;

(g) a printout from the Government of Canada website showing claim details for Employment Insurance Benefits from March 2016 to March 2017; and,

(h) a document which shows the "transaction history" for January and February 2016 for an unknown and unidentifiable bank account.

[85] In addition to the evidence filed with the court, the mother provided the father with the same document entitled "Transaction History" she filed with the court for January and February 2016, for all of 2016, 2017 and the months of January 1st to May 18, 2018. There is no bank name or account number on these documents which were made exhibits at the hearing at the father's request. The "Transaction History" documents contain unexplained and improper entries that create overwhelming doubt that they are authentic.

[86] The mother was asked to explain how it is that according to her "Transaction History" for January and March 2016 and January and March 2018, she made the exact same three purchases in 2018 at Esso, Giant Tiger and Value Village that she made at the exact same locations on the exact same day, in the exact same amount in 2016. She could not provide an adequate explanation.

[87] The following are only some of the additional questionable entries on the mother's documents entitled "Transaction History":

(a) There is an entry on the January 2018 "Transaction History" with the date March 8, 2017;

(b) The heading of the page entitled "Transaction History for January 2018 has a transaction for March 2018;

(c) The "Transaction History for April 2018" contains an entry for a transaction on April 10, 2017;

(d) The "Transaction History for February 2017" contains an entry for a transaction on February 23, 2018;

(e) The "Transaction History for December 2016" contains an entry for a transaction on December 23, 2018; and,

(f) The "Transaction History for November 2016" contains an entry for a transaction on November 6, 2020.

[88] The mother denied that what she claimed to be her bank records printed off her computer were in fact documents she generated herself. She could not explain the questionable entries and was asked by the court to bring her original bank statements to the court the next day. Despite being given the opportunity to rectify the problem, the mother attended in court on the second day of the hearing without her original bank records.

[89] The disclosure the mother did serve on the father resulted in the following inconsistencies with respect to her income:

(a) The mother's incomplete 2016 Income Tax Return shows T4 income of $35,315.22 which is made up of $10,228.00 in Employment Insurance Benefits, $7393.35 from Dart Canada, and $17,693.87 from Chemtrade Logistics. This total does not include income disclosed on a T4 for 2016 from Robert Half Accounting in the amount of $23,969.60.

(b) While the "Transaction History" documents provided by the mother disclose deposits to her bank account from Robert Half in 2017, there are no deposits from Robert Half in 2016 bringing the authenticity of the 2016 T4 into question;

(c) The mother gave evidence that she received disability benefits through employment in 2016 from Great West Life. This income is seen in her "Transaction History" documents but not included on her 2016 income tax return; and,

(d) The mother's evidence is that she began her own company in 2017 but really began earning an income from that business in 2018. Her "Transaction History" records show income in 2017 from at least two clients that is not included on her 2017 income tax return that discloses no self-employment income, gross or net, at all.

[90] The mother has not produced any reliable evidence that the court could rely upon to find a change in circumstances warranting a review of her child support obligation. The mother's failure to provide the father with basic financial disclosure to support her claim is a repeat of what occurred before Justice Sherr in 2016. If that was not reason enough to dismiss her claim, her complete lack of credibility would be sufficient to do so.

[91] The court has little doubt that the mother has been untruthful with the court and may have relied on falsified documents at the hearing. She was given the opportunity to refute the father's claim that she created false bank statements but failed to do so. In light of the discrepancies on the face of the documents and the mother's failure to provide a plausible explanation for them, she has no credibility with the court whatsoever.

[92] As the mother has not met the threshold requirement to show any change in circumstances since the order of Justice Sherr dated October 13, 2016 warranting a review of her child support obligation, her motion to change child support must be dismissed.

Father's Request for an Order Imputing Income to the Mother of $60,000.00 for the Purpose of Fixing Prospective Child Support

Legal Considerations

[93] Section 19 of the Child Support Guidelines permits the court to impute income to the mother if it finds that she is earning or capable of earning more income than she claims. The father argues that the mother is capable of earning $60,000.00 and her child support obligation should increase to reflect that ability commencing January 1, 2019.

[94] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli, [2002] O.J. No. 3731 (Ont. CA).

[95] The Ontario Court of Appeal in Drygala set out the following three questions which should be answered by a court in considering a request to impute income:

1. Is the party intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by virtue of his or her reasonable educational needs?
3. If not, what income is appropriately imputed?

[96] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552 (Ont. C.A.).

[97] The father has failed to provide an evidentiary basis upon which the court can rely to impute income to the mother at $60,000.00. He simply argued that as a payroll specialist the mother can earn up to $60,000.00 per year. There was no evidence before the court to support his contention.

[98] As the father did not create an evidentiary basis to impute income, the father's claim to impute income to the mother of $60,000.00 per year for the purpose of fixing her ongoing child support obligation is dismissed.

[99] As the table setting out the child support payable based on annual income pursuant to the Child Support Guidelines was changed on November 22, 2017, the child support payable by the mother will increase in accordance with the new table effective December 1, 2017.

Should the Mother Require Leave to Bring Any Further Motions to Change?

[100] The father asks the court to prohibit the mother from bringing any further Motions to Change without leave of the court. The court agrees that such an order is necessary in the circumstances of this case.

[101] The mother has failed to provide even the most basic financial disclosure prior to two hearings in this court to determine her child support obligation. She will not get a third hearing without first obtaining leave of the court which will require her to show she has accumulated the required financial disclosure and that it provides evidence of a prima facie case of a change in circumstances warranting a review of the child support order.

[102] K.J. is almost 15 years old. The court does not see very much custody and access litigation involving 15 year old children. That is likely because it is well accepted by the court and most litigants that most 15 year olds will make their own choices in relation to where they live and when they see the parent with whom they do not reside regardless of a court order. This cannot be said of the mother in this case. She gave evidence that she will never stop fighting for a relationship with K.J. As a result, she will not be permitted to bring a Motion to Change custody or access without leave of the case management judge.

[103] On a final note, the court urges the mother to redirect the energy she has committed to the litigation into herself and intensive therapy to obtain the therapeutic assistance she needs if she is ever going to have a meaningful relationship with K.J.

Order

[104] Order to go as follows:

(a) The mother's Motion to Change the custody, access and child support order of Justice Sherr dated October 13, 2016 is dismissed.

(b) The father's Motion to Change to fix the mother's child support obligation based on an imputed annual income to the mother of $60,000.00 is dismissed.

(c) Commencing December 1, 2017, and on the first of each month thereafter, the mother's child support obligation based on an imputed annual income of $50,000.00 shall be increased to $461.00 per month in accordance with the November 22, 2017 Child Support Guidelines.

(d) The mother shall not be permitted to issue a Motion to Change custody, access or child support without leave of the case management judge. She must request leave of the court by filing a Form 14B Motion form with the court, which shall not be served on the father.

(e) If any party is seeking costs of the Motion to Change, they shall serve and file their costs submissions within 20 days of the date of this endorsement. Submissions shall not exceed 3 pages not including attachments. The Responding party shall have 20 days to respond to the requests for costs against them and their response shall not exceed 3 pages not including attachments. The party seeking the costs shall then have 15 days to file a reply to the response, which shall not exceed 2 pages not including attachments. All of the costs submissions shall be filed with the Trial Coordinator at her second floor office.

Dated: December 11, 2018

_____________________

Justice Melanie Sager

Footnotes

[1] The documentary evidence produced by the mother demonstrates that she saw the psychiatrist prior to the 2016 hearing.

[2] This is factually inaccurate as Justice Sherr's order of October 13, 2016 does not prohibit contact with K.J.

[3] Despite being given permission by the court to file up to 15 days of recordings of the CCAS, the mother filed CCAS records for far more than 15 days covering the period of 2009 to 2015.

[4] Although she did give oral evidence that she did not update her financial statement as nothing had changed since she swore her last financial statement on May 24, 2018.

[5] The T4s provided by mother do not add up to the totals inserted on line 101 of her income tax returns for 2016 and 2017.

[6] The mother gave evidence that her company is not incorporated.

[7] The amounts earned from Dart Canada and Chemtrade Logistics were found on Records of Employment, not T4s.