Court File and Parties

ONTARIO COURT OF JUSTICE DATE: June 7, 2021 COURT FILE No.: Brantford F 476/10 ext. 001

BETWEEN:

BLAIR BURTON Applicant

— AND —

REGGILYN BROWN Respondent

Before: Justice A.D. Hilliard

Heard on: May 12, 2021 Reasons for Judgment released on: June 7, 2021

Counsel: Blair Burton.................................................................................................. on his own behalf D. Maslov..................................................................................... counsel for the respondent

Hilliard J.:

Overview

[1] The Applicant, Mr. Burton, is the biological father of the subject child. The Respondent, Ms. Brown, is the biological mother. The child is River Scott Reginald Burton Brown, born […], 2010.

[2] The matter currently before the Court is a Motion to Change, commenced by Ms. Brown, seeking an adjustment in the child support payable by Mr. Burton. In his Response to Motion to Change, Mr. Burton seeks a change to the current parenting schedule. With the consent of the parties, I conducted a focussed hearing on the sole issue of whether there has been a material change in circumstances such that the Court may vary the final order of Edward J., dated October 13, 2011, on the issue of parenting time.

[3] For the reasons that follow, I find that the Applicant has demonstrated that there has been a material change in circumstances sufficient to allow his request for a variation of the parenting schedule to be reviewed by the Court.

Background

[4] On October 13, 2011, the parties entered into Final Minutes of Settlement that were accepted and made into an order by Edward J. That final order provided for Mr. Burton to have access (as it used to be called) with River every other weekend from Friday at 5:00 p.m. until Sunday at 5:00 p.m., commencing October 21, 2011, and as otherwise agreed in writing between the parties. Exchanges were to take place at the Tim Horton’s in Paris, Ontario on Paris Road. There is no provision in the final order for Mr. Burton to have specified time with River during holidays such as Christmas or during the summer.

[5] At the time of the final order, Mr. Burton was a self-represented party, using the assistance of duty counsel. Ms. Brown was represented by a lawyer, albeit it not the same lawyer who now represents her in these proceedings.

[6] Ms. Brown commenced this Motion to Change on December 10, 2019 making a claim to change child support in accordance with the Child Support Guidelines. Child support had not been recalculated since the final order in 2011 and Ms. Brown asserts that a retroactive and ongoing adjustment to the amount payable by Mr. Burton should be ordered by the Court.

[7] Mr. Burton filed a Response to Motion to Change on January 6, 2020 seeking that Ms. Brown’s claims be dismissed and making claims of his own for a review of the current parenting regime, including his parenting time and the exchange location. Mr. Burton prepared his own pleadings and has been representing himself throughout without duty counsel.

[8] Due to the suspension of court operations in March 2020, and the subsequent scheduling backlog that was created, a case conference in this matter was not held until November 9, 2020. At the case conference, I made an order with the consent of the parties that the issue of whether there had been a material change in circumstances would be argued at a hearing based on written materials only. The hearing was initially scheduled to proceed on March 10, 2021.

[9] The hearing was unable to proceed as originally scheduled because Mr. Burton had included information in his reply affidavit that should properly have been in his primary affidavit material and consequently the matter had to be rescheduled to May 12, 2021. The hearing did proceed as scheduled in May on the basis of affidavit evidence filed.

Analysis

[10] I must find that there has been a material change in circumstances in order to consider Mr. Burton’s request to vary the current parenting regime. The test for determining whether there has been a material change in circumstances is not contentious. Mr. Burton must demonstrate that there has been a material change that affects or is likely to affect River, and that change must have not been foreseen or reasonably contemplated by the judge who made the original order. The change must be to the condition, needs, means, or circumstances of the child and the ability of the parent to meet those needs.

[11] River was not yet 2 years old at the time of Edward J.’s order. He is now 11. Although ageing in and of itself does not necessarily constitute a material change in circumstances, it can be an important factor.

[12] Mr. Burton’s evidence is that his work schedule is different now than it was at the time the final order was made on consent. Back in 2011, Mr. Burton was required to work night shifts, which is no longer the case. Ms. Brown relies on the decision of Sheard, J. in Deslauriers v. Russell [1] to support the proposition that a change in a parent’s work schedule does not constitute a material change in circumstances. However, that decision is distinguishable on the facts. In Deslauriers, the mother was asserting that her decision to close her part-time beauty business to become a stay-at-home parent constituted a material change as it impacted her ability to provide full-time care for the child. However, Sheard, J. found that the change in employment status of the mother was not material, as the mother had only ever worked part-time, structuring her hours of work to ensure that she was available to care for the child during her parenting time. I would also note that the change to mother’s work schedule in that case was but one of the factors being relied upon to demonstrate a material change in circumstances.

[13] Mr. Burton’s position is that the change in his work schedule, combined with additional family supports, puts him in a materially different position now to provide care for River than in 2011. His evidence is that Ms. Brown has ignored his requests to become more actively involved in River’s life, particularly over the past year.

[14] Ms. Brown urges me to find that there is no material change in circumstances. Specifically, she argues that she has been meeting the needs of River for the past 10 years and continues to do so. She further submitted that changes in a parent’s work schedule are common and expected, and that I should draw a negative inference from the lack of evidence provided by Mr. Burton as to when his work schedule changed from nights to days. It is her position that Mr. Burton is in the same position now to care for River as he was in 2011.

[15] I find that when Mr. Burton’s work schedule changed is not relevant to determining whether it constitutes a material change in circumstances. The timing of the request to change a parenting regime has no bearing on whether there has in fact been a material change in circumstances. There is nothing in the legislation or the caselaw that supports the proposition that a parent has to bring their request for a change proximate in time to the material change in their circumstances arising. To import such a requirement into the test would result in a potential absurdity, such that a parent could be barred from a review of a parenting order that was no longer in the child’s best interests simply by virtue of the fact that for whatever reason, there was a delay in the matter being brought before the court.

[16] I do not accept the proposition that changes in a parent’s work schedule are common and expected. Parents can work at the same job with the same hours for years or decades, whereas other parents suffer precarious or seasonal employment where availability of work hours is completely unpredictable. There is no evidence before me that Mr. Burton’s work schedule changing from days to nights was anticipated or even reasonably foreseeable at the time the consent order was made in October 2011.

[17] A change in River’s views and preferences can also constitute a material change in circumstances. Although I accept that Ms. Brown could not comment on statements River made to Mr. Burton while not in her presence, it is notable that she does not respond in any way to Mr. Burton’s assertion that River wishes to spend more time with him. At 11 years old, River’s views and preferences could be a significant factor in determining whether a change to the current parenting status quo is appropriate.

[18] In considering River’s changing condition, means, needs and circumstances, I was struck by Ms. Brown’s broad sweeping statement in her February 12, 2021 affidavit that River “is well adjusted and thriving.” That may very well be true, but does not address the concern raised by Mr. Burton that River wants and needs to spend more time with his father. She also does not respond to Mr. Burton’s allegation that she has restricted the time that River gets to spend with his father and extended paternal family.

[19] I have also considered the complete absence of any provision in the order allowing for Mr. Burton to share time with River during holidays. Pazaratz, J. in Zolatruiuk v. Johansen [2] found that a material change in circumstances can exist when an existing order is not working and needs to be clarified or fine-tuned. The terms of the order of Edward, J. result in Mr. Burton being left to negotiate with Ms. Brown for additional parenting time with River that is not specified in the final order. If they cannot agree, the end result could be that River does not spend any additional time with his father during holidays or the summer school break.

Conclusion

[20] Given all of the foregoing, I am satisfied that Mr. Burton has demonstrated that there has been a material change in circumstances such that the Court can embark on a fresh inquiry into what parenting regime would be in River’s best interests.

Released: June 7, 2021 Signed: Justice A.D. Hilliard

[1] [2016] O.J. No. 4623 (SCJ) [2] [2009] O.J. No. 1420.