Court File and Parties

Date: November 2, 2020

Court File No.: D81173/15

Ontario Court of Justice

Between:

M.S.

HELEN M. MCCULLOUGH, for the APPLICANT

APPLICANT

- and -

D.F.M.A.

AYESHA HUSSAIN, for the RESPONDENT

RESPONDENT

Heard: October 28, 2020

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The respondent (the father) has brought a motion to change the parenting time terms set out in the final order of Justice Carole Curtis, dated March 27, 2017 (the final order). The final order provides that the father's parenting time with the parties' 6-year-old daughter (the child) shall take place every Sunday and on one additional Saturday each month. The father is now seeking overnight access and holiday time.

[2] The applicant (the mother) asks the court to dismiss the father's motion to change.

[3] On August 11, 2020, the parties executed temporary minutes of settlement that provided that the father would have overnight parenting time with the child.

[4] The mother informed the court at the outset of a case conference held the next day that she was resiling from this agreement.

[5] The parties are of very limited means and this motion to change has been before the court since February 2019. The parties agreed that in lieu of the father bringing a motion to enforce the temporary minutes of settlement, they would proceed with the hearing of the father's motion to change on a final basis and the minutes of settlement would be evidence at the hearing.

[6] This hearing proceeded by videoconference. The parties presented the matter based on their affidavits filed and submissions. The court gave the parties permission to question each other out-of-court in advance of the hearing. They chose not to do this.

[7] The issues for the court to determine are:

a) Has there been a material change in circumstances affecting or likely to affect the best interests of the child?

b) If so, what order for parenting time is now in the child's best interests?

c) What impact, if any, should the temporary minutes of settlement have on the determination of these issues?

Part Two – Background Facts

[8] The mother is 24 years old. The father is 29 years old.

[9] The parties lived together from November 2013 until April 2015.

[10] The child has lived with the mother since the parties separated.

[11] The mother issued her application for custody and child support in July 2015.

[12] Initially, all access exchanges with the father were supervised, and the father's parenting time was limited, due to concerns about domestic violence and his parenting ability.

[13] The case was contentious and was eventually placed on the trial list. The parties consented to the final order prior to trial. The final order provides that the mother has custody of the child and the father has daytime parenting time with the child.

[14] The father issued his motion to change the final order on February 8, 2019.

[15] On July 9, 2019, the parties consented to minor changes to the final order on a temporary basis. The father agreed to provide his telephone number for text communication and to provide a picture of his mother's swimming pool to the mother, if he intended to take the child to his mother's home.

[16] The parties focused on the financial issues at a case conference held on September 17, 2019.

[17] During October 2019, the mother denied the father parenting time for several weeks, after an argument between them.

[18] On January 30, 2020, the parties obtained an adjournment of the case to hold a settlement conference, to be facilitated by Ontario Legal Aid.

[19] The pandemic resulted in the legal aid settlement conference being delayed.

[20] At the beginning of the pandemic, the father agreed with the mother's request not to have in-person parenting time with the child. Video calls were arranged, but few took place. The parties blame each other for that. The father asked to restore in-person parenting time in June 2020. The mother refused to do this.

[21] On August 11, 2020, the parties held their legal aid settlement conference and executed temporary minutes of settlement. It provided for the father to start overnight access on August 22, 2020, on one night every other weekend.

[22] The mother resiled from the agreement the next day and this hearing was organized.

[23] The father resumed having in-person day parenting time with the child, in accordance with the final order, on August 23, 2020. This continues.

Part Three – Legal Considerations

3.1 – Material Change in Circumstances

[24] Section 29 of the Children's Law Reform Act provides the statutory authority for changing a custody or access order. It states:

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

[25] The Supreme Court of Canada decision in Gordon v. Goertz, 19 R.F.L. (4th) 177 sets out a two-stage process for the court to conduct in motions to change custody or access as follows:

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

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

[26] In L.M.L.P. v. L.S., [2011] SCC 64, the Supreme Court stated that the change must be substantial, continuing and that "if known at the time, would likely have resulted in a different order." The Supreme Court stated that it must limit itself to whatever variation is justified by the material change of circumstances.

[27] On a motion to change, the court has the option of restricting changing the existing order to address a specific issue, while maintaining its integrity. See: Elaziz v. Wahba, [2017] ONCA 58.

[28] A party's extensive non-compliance with an existing court order can amount to a material change in circumstances for the purposes of the variation analysis. See: Chin Pang v. Chin Pang, 2013 ONSC 2564; Roloson v. Clyde, 2017 ONSC 3642.

[29] The aging of a child does not automatically mean that there has been a material change in circumstances, but it can be a factor in making this determination. See: Brown v. Lloyd, 2015 ONCA 46.

[30] The aging of the child was considered a material change in circumstances where a child who was 18 months old at the time of the order had turned 3 years old. See: Elliott v. Loewen, 1993 CarswellMan 36 (C.A.).

[31] In McMaster-Pereira v. Pereira, 2018 ONSC 7090, the children being 5 years older was a contributing factor in the court finding a material change in circumstances, as their needs had materially changed.

[32] In Elliott, the Manitoba Court of Appeal made it clear that children's needs change and will change frequently. Parenting orders should reflect those changes. It wrote:

The needs of a child in relation to each of his parents change frequently over the years from infancy to adulthood. No court order can be crafted to address those ever-changing needs and the concerns of separated parents as they relate to their child; thus, the need for variation. Ideally, variation will occur by the consent of the parties, who are in the best position to recognize the best interests of their developing child. Where the parties agree on the needs of the child and the need for ongoing flexibility regarding custody and access, court intervention is happily avoided. At this state of this child's life, periods of access should be regular and meaningful in light of this child's needs in relation to nap times, day care involvement, and home routine.

[33] In Gray v. Wiegers, 2008 SKCA 7, the Saskatchewan Court of Appeal took a more technical approach to the material change in circumstances test and found that the aging and maturity of a child, without more, did not constitute a material change in circumstances.

[34] This court prefers the more liberal approach taken by the court in Elliott. It is more responsive to the reality that as children age, their needs change and parenting orders should be changed to meet those needs. Further, parents change – particularly in our court where we see many young and inexperienced parents. If their ability to meet a child's needs change, the court should be prepared to change parenting time orders if this is in the child's best interests.

3.2 – Best Interests

[35] Subsection 24(1) of the Act provides that the merits of a custody or access application shall be determined on the basis of the best interests of the child.

[36] Subsection 24(2) of the Act sets out eight considerations for the court to consider in making the best interests determination. No one factor has greater weight than the other, nor is one factor particularly determinative of the issue before the court. See: Libbus v. Libbus, [2008] O.J. No. 4148 (Ont. SCJ). The court must also consider subsection 24(3) of the Act that deals with past conduct relevant to parenting and subsection 24(4) of the Act that deals with violence and abuse. The court has considered all of these relevant factors.

[37] A child should have maximum contact with both parents if it is consistent with the child's best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27; Rigillo v. Rigillo, 2019 ONCA 548.

[38] The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See: M.A. v. J.D., [2003] O.J. No. 2946.

3.3 – Parenting Agreements

[39] The court is not bound by an agreement between the parties regarding parenting issues. However, where the parties have reached an agreement, a court should respect the agreement unless the agreement is not in the child's best interests. See: Hartwick v. Stoneham, 8 R.F.L. (5th) 74; Shaikh v. Matin, 2017 ONSC 5842.

[40] Although courts are not bound by parenting terms in agreements, they can be relied upon as an indication of parental intentions when they were entered into. See: Libbus v. Libbus, supra; C. (M.A.) v. K. (M.), 2009 ONCJ 18; B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438.

[41] In Tumino v. Tumino, (2002) R.F.L. (5th) 427 (Ont. SCJ), the court stated that it was sound public policy that parenting agreements be encouraged. If the contents were simply ignored, it would eliminate any incentive to use the time and resources to negotiate them.

Part Four – Positions of the Parties

[42] The father is seeking a graduated parenting time schedule. He asks that it start with single overnights with the child on alternate weekends, together with a mid-week visit and virtual access twice each week.

[43] The father seeks an order to have his parenting time increase to full weekends on alternate weekends starting in February 2021.

[44] The father also seeks parenting time on holidays.

[45] The father is prepared to agree to parenting time conditions that were sought by the mother during the legal aid settlement conference including:

a) Exchanges would take place at a police station near her home.

b) Overnight parenting time would take place at his mother's home.

c) The child would have her own room.

d) If he is more than 30 minutes late on exchanges, his parenting time would be reduced by one hour going forward.

e) He would follow government COVID-19 health protocols.

[46] The father set out how, since he issued his motion to change in February 2019, he has consistently exercised all the parenting time with the child permitted by the mother, and how he and the child have developed a close relationship.

[47] The father alleges that the mother:

a) Has unreasonably restricted or denied his parenting time with the child, contrary to the final order.

b) Constantly sets up obstacles to his parenting time, including making false allegations about him. He claims that these allegations escalate closer to court dates.

c) Does not respect his role as the child's father.

d) Is inappropriately involving the child in the parenting disputes.

[48] The mother submits that the father hasn't established a material change in circumstances. She alleges that:

a) The father is frequently late on exchanges.

b) The father neglects the child's health needs.

c) The father is not properly supervising the child at visits and the child is getting injured.

d) The father continues to have limited parenting skills.

e) The father speaks inappropriately to the child.

f) The father uses drugs.

g) The child needs to see a psychiatrist due to the father's conduct.

h) The child does not want overnight visits with the father.

i) The father has continued to act inappropriately by:

i) Making unsubstantiated allegations about her parenting to the Children's Aid Society of Toronto (CAST).

ii) Videotaping the child in support of making allegations against her.

[49] The father acknowledged that he had an issue with lateness on parenting exchanges, particularly in 2019. This is why he is agreeable to a reduction in his parenting time if he is late. He says that lateness has not been an issue in 2020.

[50] The father also acknowledged that he was advised by CAST that videotaping the child was not child-focused. He agreed to stop doing this. He says that he contacted CAST based on what the child was telling him about the mother and felt he was doing the right thing. He has stopped making these reports.

[51] The father did not deny using drugs but says that he does not use them when he is caring for the child.

[52] The father denied the other allegations made by the mother.

Part Five – The Temporary Minutes of Settlement

[53] The temporary minutes of settlement were executed at a legal aid settlement conference held on August 11, 2020.

[54] The agreement includes terms that:

a) Starting on August 22, 2020, the father would have overnight parenting time from Saturday at 10:00 a.m. until Sunday at 6 p.m.

b) The father would have virtual parenting time with the child twice each week and the mother would have virtual access once during the father's parenting time.

c) The father would have parenting time from Christmas Day at noon until December 27, 2020.

[55] The mother deposed that she had been under considerable pressure during the settlement conference, particularly from the legal aid facilitator. She felt that her concerns were minimized and unheard. She said that she felt uncertain and uncomfortable in the situation. She felt that she was just being "carried along."

[56] The court finds that there is little merit to the mother's position. The settlement conference was conducted by videoconference. She was in her lawyer's office the entire time. The father was with his lawyer in her office. The court was advised that the meeting took two hours and that there were lengthy negotiations. The matter was not rushed.

[57] The minutes of settlement reveal that the mother's concerns were taken into account – she was listened to. The minutes contain terms that:

a) The father must exercise parenting time at his mother's home.

b) The child must have her own room.

c) The father's parenting time is reduced if the father is more than 30 minutes late on exchanges.

d) The mother will have virtual calls with the child during the father's parenting time.

e) The father's first overnight was scheduled to ensure that the mother would have the child on Christmas Eve this year.

[58] The mother is now an experienced litigant. She has never hesitated to forcefully advance her position in these proceedings.

[59] The court finds that the mother simply had second thoughts after executing the agreement.

[60] The mother acted inappropriately on the evening after she executed the agreement by having the child phone the father to tell him that she didn't want to have overnight visits with him.

Part Six – Analysis

6.1 - Material Change of Circumstances

[61] There have been material changes in circumstances affecting the child since the parenting order was made, including:

a) The father has consistently exercised the parenting time made available to him. This is a change from what was happening in the initial proceeding.

b) The father's parenting time has been positive. He has developed a closer relationship with the child.

c) The aging of the child is a material change in circumstances in this case. When the final order was made, the child was only 3 years old and the father was an inexperienced parent. It was not in the child's best interests at that time to have overnight time with him. The father is now a more experienced parent. The child is almost 7 years old. The father is much better able to meet the child's needs during his parenting time in a fundamental way.

d) The mother has unduly restricted the father's time and has, at times, breached the final order by denying the father access. This has interfered with the child's opportunity to fully develop her relationship with the father. Examples of the mother's unilateral breaches of the final order include her denial of parenting time to the father for several weeks in October 2019 without justification and her denial of parenting time from June 2020 until August 22, 2020, when the father sought the resumption of in-person parenting time. The mother did not bring a temporary motion to court to change the father's parenting time - she just unilaterally denied it.

e) The mother has been undermining the father's relationship with the child and there is a real possibility of the mother damaging this relationship unless the parenting order is changed to provide the father with more contact with the child.

[62] The court has also considered that the mother implicitly agreed that there had been a material change in circumstances when she executed the temporary minutes of settlement that provided for the start of overnight access.

[63] While the case law set out in section 3.3 above refers to cases that either seek to enforce or change parenting agreements, this court finds that the principles contained in those decisions also apply to this situation. In particular:

a) While the court is not bound by the agreement, it should respect the agreement unless the agreement is not in the child's best interests.

b) The agreement reflects the parties' intentions about parenting at the time the agreement was made.

c) It is sound public policy that parenting agreements be encouraged. If the contents were simply ignored, it would eliminate any incentive to negotiate them.

[64] Having found that there have been material changes in circumstances affecting or likely to affect the best interests of the child, the next step is to determine what parenting time orders are in the child's best interests.

6.2 - Best Interests

[65] The father is flawed – but he is not nearly as flawed as the mother alleges.

[66] The father's flaws have been taken into account by the court since the original application, as reflected in the cautious approach it has taken to increasing his parenting time with the child.

[67] Until 2020, the father was often unreliable in returning the child from visits – he was sometimes over two hours late. This was frustrating and unsettling for the mother and not good for the child who was taken out of her routine.

[68] CAST was involved with the family from 2018 until March 2020. CAST set out that their involvement was due to the risk of the child being emotionally harmed due to parental conflict and due to the risk to the child arising from the father's limited caregiving skills.

[69] The father unnecessarily escalated conflict with the mother by making unsubstantiated allegations about her parenting to CAST. CAST investigated the father's allegations and they were not verified. It commented in its notes that the mother was a good mother.

[70] The father lacked the insight to appreciate that attacking the mother's parenting would only lead to her being more defensive and rigid about his parenting time.

[71] The father showed poor judgment by videotaping the child and involving her in parental conflict.

[72] The father also showed immaturity by posting pictures depicting drug use and mocking the police for charging with him with a driving offence on social media. This only reinforced the mother's view that he is not a responsible person.

[73] The father has addressed many of these concerns.

[74] No evidence was provided that the father's lateness on parenting exchanges has been a serious issue in 2020. He is willing to agree to consequences for being late – it is rare to have a parent agree to that as a condition.

[75] The father has stopped videotaping the child after being told by CAST that this was not child-focused. He has stopped making allegations to CAST about the mother.

[76] Many of the allegations made by the mother were not supported by the evidence.

[77] The mother claimed that the child had suffered injuries in the father's care that required medical care. In particular, she claimed that on September 3, 2020, the child's ribs were fractured while in his care. She provided no medical evidence in support of these allegations despite receiving requests for this evidence from the father's counsel.

[78] The mother claimed that the child often returned home so sick from the father's care that she required medical care. Again, despite requests for medical confirmation of this, the mother did not provide any evidence to support this allegation.

[79] The mother claimed that the child was seeing a psychiatrist due to the father's conduct. However, despite requests from the father's counsel, she never produced any evidence from a psychiatrist that this was the case.

[80] The mother claimed that she denied the father parenting time after he requested in-person access in June 2020 due to the child's severe asthma. She provided no medical evidence that the child could not have in-person parenting time with the father due to the asthma, or that the asthma is severe.

[81] There is no independent evidence that the father is neglecting the child's needs or not properly caring for the child during his parenting time. There is no evidence that he is using drugs while caring for the child.

[82] The court draws an adverse inference against the mother for failing to provide independent corroboration of her allegations. She was put on notice by the father that this was material evidence.

[83] As stated in Sopinka, Lederman & Bryant, The Law of Evidence in Civil Cases (3rd ed., LexisNexis Canada Inc., 2009), at p. 377:

In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such failure amounts to an implied admission that that the evidence of the absent witness would be contrary to the party's case, or at least would not support it.

Also see: Sabanegh v. Habaybeh, 2010 ONSC 6572 and L.W.-A. v. J.C., 2017 ONCJ 741, for cases where an adverse inference was made against a party for failing to call material evidence.

[84] The court agrees with the father's submission that the mother escalates her allegations the closer the parties get to a court date. In her response to motion to change, the mother, in support of her request for an order that the father's access now be supervised, only alleged that the father engages in inappropriate conversations with the child. There were no allegations about improper supervision, limited parenting skills, lateness, drug use or neglect of the child's health needs. The allegations of neglect against the father escalated after the mother withdrew from the minutes of settlement on August 12, 2020. Almost immediately she claimed that the child had broken ribs due to the father's neglect on a visit and that the child did not want to go for overnight visits.

[85] The court also notes that despite the significant allegations made by the mother against the father, it was he, and not she, who brought the matter back to court for judicial intervention.

[86] The evidence supports the father's submission that the mother is not supportive of his relationship with the child and fails to appreciate the importance to the child of having a meaningful relationship with him. Evidence of this includes:

a) The mother denying the father parenting time for several weeks in October 2019, without justification. On October 7, 2019, she texted the father that she was cancelling his visit the following day so that he could learn to be responsible and punctual.

b) In October 2019, the mother wrote to the father saying:

..I am a good mother and I don't need a sperm donor to tell me otherwise what I should or should not do.

c) The mother contributed to the frustration of the father's video time with the child after the pandemic began.

d) The mother unjustifiably denied the father in-person parenting time with the child from June 2020 until August 22, 2020. She made a unilateral decision about this and did not seek the court's permission.

e) Despite the final order providing for "such other access as the parties agree upon", the mother has never provided the father with additional parenting time.

f) The mother has made several unsupported allegations about the father to limit his parenting time with the child.

g) The mother has inappropriately involved the child in the adult conflict, which risks impairing the child's relationship with the father.

h) The mother demonstrated little insight in her affidavit material about the importance to the child of having a meaningful relationship with the father.

i) The mother withdrew from an agreement she made to provide the father with overnight parenting time starting in August 2020, creating a further delay in the start of his overnight parenting time with the child.

[87] The father has demonstrated an impressive commitment to having a meaningful relationship with the child, despite the roadblocks put up by the mother. He has attended every visit permitted. He has been willing to agree to numerous conditions to appease the mother's concerns, many of which go above and beyond what a court will ordinarily order. However, none of these concessions appear to be good enough for the mother.

[88] The court finds that unless the child spends more extensive parenting time with the father, there is a real risk that the mother will undermine this relationship to the child's detriment. He needs to be much more than a "sperm donor" to the child.

[89] The temporary minutes of settlement reflected the parties' intentions when they were entered into on August 11, 2020 about what parenting order was in the child's best interests. The court finds that it was a reasonable agreement and was in the child's best interests. It is unfortunate for the child that it was not implemented.

[90] The court finds that it is now in the child's best interests to have overnight parenting time with the father. The court will order the graduated overnight schedule suggested by the father. The parties have been litigating for too long. It is important that an order be constructed to avoid a return to court.

[91] It is also in the child's best interests to spend meaningful holiday time with the father. It finds that the holiday time sought by the father is reasonable.

[92] The court will not order mid-week visits. This is not a reflection on the father. The adult conflict is still too high. The court wants to limit the parenting transitions for the child and her exposure to adult conflict.

[93] The court will order most of the conditions agreed upon by the parties in the temporary minutes of settlement. The father has agreed that overnights take place at his mother's home and that the child shall have her own bed. This should reassure the mother that the child will be properly cared for.

[94] The court will not order exchanges at a police station. It sends the wrong message to children. It can undermine the child's sense of safety and stability – that the police need to be involved and they may be in some danger. Here, the child already has to emotionally manage the mother's anxiety about the father's parenting time. Exchanges at a police station will only reinforce the mother's perspective that the visits with her father are not safe. No evidence was provided that the existing exchange arrangement, set out in the final order, is not working.

[95] The court also finds it is in the best interests of the child that the father have the rights to information set out in subsection 20(5) of the Act.

Part Seven – Conclusion

[96] On consent, the parties' motions to change support are withdrawn.

[97] An order shall go changing the parenting terms in the final order as follows:

a) Paragraphs 2 and 6 are terminated.

b) Paragraphs 3, 4, 5 and 7 shall remain in force.

c) The father shall have the right to information about the child set out in subsection 20(5) of the Children's Law Reform Act.

d) The mother, by text, shall keep the father reasonably informed about the child's health and education. She shall notify him if there is a school event.

e) Commencing on November 7, 2020, the father shall have parenting time on alternate weekends from Saturdays at 10:00 a.m. until Sundays at 6 p.m.

f) Commencing on February 12, 2021, the father shall have parenting time on alternate weekends from Fridays at 6 p.m. until Sundays at 6 p.m. This will extend to Mondays at 6 p.m., if his parenting time falls on a weekend where there is a statutory holiday.

g) Commencing on December 25, 2020, and onwards, the father shall have the child with him from December 25th at noon until December 27th at 6 p.m.

h) The child shall spend parenting time with the father for Easter from Friday to Sunday in even-numbered years and that parenting time with the mother in odd-numbered years.

i) The child shall spend Father's Day with the father from 10:00 a.m. to 6 p.m., if it is not otherwise his weekend with the child. The child shall spend Mother's Day with the mother starting at 10:00 a.m., if it is not otherwise her weekend with the child.

j) The holiday parenting times shall take priority to the regular parenting schedule.

k) The father shall have video calls with the child on Tuesdays and Fridays at 6 p.m.

l) The mother shall have video calls on Saturdays at 6 p.m., when the child is with the father.

m) Such further and other parenting time as the parties reasonably agree to. The parties are expected to be flexible in arranging parenting time.

n) The child shall spend overnight parenting time at the father's mother's home, or such other location approved by the mother. The child shall have her own bedroom.

o) If the father is thirty minutes late for a visit, the visit will be cancelled.

p) Any weekend visit cancelled by the mother will be made up the following weekend. If the father cancels his weekend visit it will not be made up.

q) The father shall not attend at the child's school for the purpose of parenting time. He may attend at the school for parent-teacher meetings or school events.

r) The parties shall ensure that they and the child comply with government health protocols for COVID-19.

s) The parties shall always communicate with each other respectfully.

[98] If either party seeks costs, they shall serve and file their written costs submissions by November 16, 2020. The father will then have until November 30, 2020 to respond. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs.

[99] The costs submissions should be delivered or emailed to the trial coordinator's office on the second floor of the courthouse.

[100] The court thanks counsel for their professional presentation of this matter.

Released: November 2, 2020

Justice S.B. Sherr