CITATION: S.H. v. D.K., 2022 ONSC 1203

DIVISIONAL COURT FILE NO.: DC-21-0000-548-000

DATE: 20220224

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Dambrot, Swinton and Copeland JJ.

BETWEEN:

S.H.

Applicant (Appellant)

– and –

D.K.

Respondent (Respondent in Appeal)

Dani Z. Frodis and Samantha Dineno, for the Applicant (Appellant)

Robert Halpern and Jessica Brown, for the Respondent (Respondent in Appeal)

HEARD at Toronto (by videoconference): January 24, 2022

Dambrot J.:

[1] What is the test for varying a final parenting order on an interim basis? These reasons provide an answer to that question.

Overview

[2] This is an appeal from an order of Pinto J. dated June 25, 2021 (2021 ONSC 4413) made on an interim motion that temporarily varies the parenting schedule of O., a 13-year-old child. The parenting schedule had been established in a final order of this court made by J. Wilson J. on consent on May 15, 2017, under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (“the final order”).

[3] The appellant, S.H. is the mother of O. The respondent, D.K. is O.’s father. S.H. and D.K. married in 2006 and separated in 2013. They are now divorced. The parties entered into a separation agreement in 2014 (the “parenting agreement”) that dealt with parenting and a separate agreement that dealt with financial issues. A parenting schedule was established in the parenting agreement. In essence, it provided that, except during holidays and vacations, O. was to reside with D.K. on Tuesdays after school, and on alternate weekends from Friday after school to Monday morning. At all other times O. was to reside with S.H. A different arrangement was put in place for holidays and vacations.

[4] The final order incorporated the parenting agreement, with certain alterations. Of relevance here, paragraph 7 of the final order amended paragraph 5.5 of the parenting agreement to provide that “the parties may review [O.’s] residential schedule on or after April 1, 2019, without having to prove a material change in circumstance.” The final order did not change the essence of the parenting schedule, which has now remained in place for at least seven years, with one small change in 2017 – O. now remains with her father overnight on Tuesdays.

[5] The current proceeding was commenced by the appellant by way of an application dated January 30, 2020, as amended on July 9, 2020, in which she sought an order to obtain updated financial disclosure from the respondent, to review the respondent’s child support obligations in light of his increased income and to make minor adjustments to the parenting schedule in relation to school breaks and religious holidays.

[6] In the respondent’s answer dated March 6, 2020, as amended on August 19, 2020, he included a claim for joint custody, for an order “varying paragraph 5.2(b) of the Parenting Agreement and paragraph 9 of the Final Order of Justice Wilson dated May 15, 2017, such that the parties will have equal and shared parenting of [O.]” and other relief. I will refer to this claim as the respondent’s crossclaim.

[7] On April 27, 2021, before the application and answer could be heard, the respondent brought a motion for an order abridging time for service and filing of motion materials, and “An [sic] temporary Order increasing the Father’s parenting time with [O.] to an equal and shared schedule by varying paragraph 5.2(b) of the Parenting Agreement and paragraph 9 of the Final Order …”. The motion was heard on June 10, 2021, by the motion judge. He characterized the motion variously as “a motion to vary a final consent order on an interim basis” and a motion in which the respondent “seeks a temporary variation of a final parenting order.”

[8] In reasons released on June 25, 2021, the motion judge granted the respondent’s motion and varied the parenting schedule “so that the parties have a week-about parenting plan with their daughter”, and in an endorsement dated September 7, 2021, he awarded costs to the respondent in the amount of $25,000.

[9] On October 8, 2021, a panel of this court granted a motion brought by the appellant for leave to appeal from the decision of the motion judge, stayed his decision pending the appeal and ordered the appeal to be expedited.

The Issues on Appeal

[10] In her notice of appeal, the appellant argued that the motion judge erred in law by applying the wrong legal test for an interim or temporary variation to a final order establishing a parenting schedule, and by failing to give appropriate weight to maintaining the parenting status quo in his analysis. She also contended that the motion judge made palpable and overriding errors of fact by failing to give proper weight to, or misapprehending, relevant evidence. However, in her factum and in her oral submissions, she restricted her argument to the alleged errors in law.

[11] As a result, I will address only the alleged errors of law. However, in my view, the two alleged errors largely overlap, and I will consider them together.

This Court’s Jurisdiction

[12] Section 19(1) (b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, provides that an appeal lies to the Divisional Court from an interlocutory order of a judge of the Superior Court of Justice, with leave. As I have noted, leave to appeal was granted on October 8, 2021.

Standard Of Review

[13] On an appeal from a decision of a judge, the standard of review on questions of law is correctness (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8). A failure to apply the correct legal test for the making of a decision is an error in law (Hydro One Networks Inc. v. Ontario (Energy Board), 2020 ONSC 4331, at para. 51 (Div. Ct.)).

Did the Motion Judge Err in Law by Failing to Apply the Correct Legal Test for an Interim or Temporary Variation of a Final Parenting Order?

1. What is the juridical nature of the respondent’s motion?

[14] The identification of the correct legal test for the relief granted by the motion judge depends, in part, on correctly determining the nature of the motion. This is a matter of controversy between the parties. Although D.K. sought a variation of the parenting schedule in his notice of motion, he says that he did not use the word “variation” as a term of art and was actually seeking a review of the parenting order, and not a variation of it. S.H. sees it differently. To resolve this controversy, I will begin with a discussion about the pertinent proceedings under the Divorce Act, and the terminology used to refer to those proceedings.

[15] Section 15.1(1) of the Divorce Act permits a judge of the Superior Court of Justice, upon an application by either or both spouses, to make an order requiring a spouse to pay for the support of a child of the marriage. Section 15.1(2) authorizes a judge to make an interim support order pending the determination of an application under subsection (1).

[16] Similarly, s. 16.1(1) of the Act permits a judge of the Superior Court of Justice, upon an application by either or both spouses, to make a parenting order in respect of a child of the marriage, and s. 16.1(2) authorizes a judge to make an interim parenting order pending the determination of an application made under s. 16.1(1).

[17] Finally, for our purpose, s. 17(1) of the Act permits a judge of the Superior Court of Justice to make an order varying, rescinding or suspending either a support order or a parenting order. However, s. 17(4) in the case of a support order, and s. 17(5) in the case of a parenting order, provide that an order under s. 17(1) can only be made if the court first satisfies itself that there has been a change in circumstances. In the case of a parenting order, a change in the circumstances of the child since the making of the order sought to be varied or the last variation order must be shown.

[18] Accordingly, there are two routes to obtaining or amending a parenting order in the Divorce Act: an application under s. 16.1(1), which I will call an application for an original order, and an application under s. 17(1), which I will call an application for a variation order. Whichever route is pursued, an interim or temporary order can also be made. In the case of an application under s. s. 16.1(1), as I have said, an interim order is available pursuant to s. 16.1(2). In the case of an application under s. 17(1), no statutory provision authorizes an interim order, but, as noted by the motion judge at para. 28[^1], it has been presumed to be available in appropriate circumstances in a number of cases. While the cases he referred to relate to the Children’s Law Reform Act, R.S.O. 1990, c. C.12, the same conclusion has been reached with respect to s. 17(1) applications under the Divorce Act. For example, in Ivens v. Ivens, 2020 ONSC 2194, at para. 73, Kurz J. stated:

All of that being said, there is no express jurisdiction in the Divorce Act to allow an interim variation of a final custody or access order. Nonetheless, judges have previously made such orders in clear and urgent cases.

[19] Whether a parenting order, including an interim parenting order, is made pursuant to s. 16.1(1) or varied pursuant to s. 17(1), s. 16(1) read together with s. 16(7) of the Act provides that in making the order, the court shall take into consideration only the best interests of the child. But, as already stated, before considering an application for a variation of a parenting order under s. 17(1), a court must first be satisfied that there has been a change in circumstances.

[20] In this case, having regard to the scheme, it would appear at first blush that the respondent’s crossclaim is an application for a variation under s. 17(1). I say this because there is a final order in place establishing a parenting schedule, and because in his crossclaim, as well as in his interim motion, the respondent asked for an order varying the parenting schedule in the final order. The respondent acknowledges that his crossclaim would ordinarily be an application for a variation under s. 17(1), but argues that this is not the case here, because of paragraph 7 of the final order. As I have already noted, paragraph 7 provides that the parties may review O.’s residential schedule without having to prove a material change in circumstance. This, the respondent says, despite the language he used in his crossclaim, makes this an application for an original order pursuant to s. 16.1(1). Such an application is referred to in the caselaw as a review, as distinct from a variation.

[21] But what then is a “review”, and how does it differ from a variation? The word “review” is not a term of art. There is no reference in the Divorce Act to an application to review an existing custody, support or parenting order. However, in Choquette v. Choquette (1998), 1998 5760 (ON CA), 39 RFL (4th) 384 (Ont. C.A.), the husband cross-appellant asked the Court to impose a time-limited “review order” in respect of spousal support. Although there is no express legislative authority for a review order, the husband argued that it was available by virtue of s. 15(4) (now s. 15.2(3)) of the Divorce Act, which authorizes spousal support orders to be made for a definite or indefinite period, or until the happening of a specified event, upon such terms as the court thinks fit and just.

[22] I note that an equivalent provision respecting child support appears in s. 15.1(4) of the Act, and respecting parenting orders appears in s. s. 16.1(5). The Court in Choquette concluded that the case under consideration was not an appropriate occasion to consider the propriety of including a review clause in a final judgment.

[23] However, in Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, at paras. 35-42, the Supreme Court of Canada expressed no such hesitation, and viewed an application for spousal support subsequent to a final order in reliance on a review clause as being made pursuant to s. 15.2. The court labelled such an application under s. 15.2 as an application for a review. The same logic must apply to applications for child support orders under s. 15.1 and parenting orders under s. 16.1 brought in reliance on a review clause. These must also be labelled applications for review. As is apparent, the fundamental difference between an application for a variation and an application for a review is that in the former, a change in circumstances must be shown, while in the latter, a change in circumstances need not be shown. The Supreme Court noted, however, that review clauses have a limited role, and must be justified by genuine and material uncertainty at the time of the original trial.

[24] In this case, I am doubtful that at the time the respondent filed his crossclaim, he turned his mind to identifying the provision of the Divorce Act under which he was seeking relief. Certainly, no provision of the Act is mentioned in his claim. Nevertheless, I am satisfied, as was the Supreme Court at para. 41 in Leskun, that despite that ambiguous framing of the application, the husband’s crossclaim is properly characterized as a review application made pursuant to s. 16.1.

[25] Of crucial importance, however, is that the motion under review here was not the hearing of that crossclaim. It was a motion for a temporary or interim variation of the existing parenting order pending the hearing of the crossclaim, made pursuant to s. 16.1(2). That characterization of the motion will determine the answer to the legal questions raised on this appeal, and in particular, the identification of the legal test that applies to a motion for a temporary or interim variation of a parenting clause in a final order pending the hearing of a review.

What legal test applies to an interim motion to vary a final parenting order?

[26] Parenting arrangements may be informal, they may arise from a separation agreement, or they may be fixed by an interim or final judicial order. From time to time, courts are asked to vary parenting arrangements in each of these circumstances on an interim or temporary basis. As stated by Pazaratz J. in F.K. v. A. K., 2020 ONSC 3726, 43 R.F.L. (8th) 411, at para. 52, and accepted by the parties before the motion judge here, courts must exercise caution before changing an existing arrangement that children have become used to, particularly where the change is sought on an interim motion. There is ample authority for this requirement. To refer to but one example, in Grant v. Turgeon (2000), 2000 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.), at para. 15, MacKinnon J. stated that “generally, the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity of a change to meet the children’s best interests. That is so whether the existing arrangement is de facto or de jure.” As was stated by Benotto J., as she then was, in Davis v. Nusca, 2003 2301 (ON SCDC), [2003] O.J. No. 3692 (Div. Ct.), at para. 8, “the basic principle of maintaining the status quo until trial … is extraordinarily important in family law cases.”

[27] Pazaratz J. went on to say at para. 52 of F.K. v. A.K. that the need to exercise caution is heightened where the existing parental arrangement has been determined by a court order, and that the level of required caution is further heightened if the court is being asked to change a final parenting order on a temporary basis. While the court has the authority to grant a temporary variation of a final order in the appropriate circumstances, the evidentiary basis to grant such a temporary variation must be compelling. The onus is on the party seeking a temporary variation to establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being, and that the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation.

[28] The imposition of a stringent test for the granting of a temporary variation of a final parenting order of a court is sound in principle, since the purpose of an interim or temporary order is simply to provide a reasonably acceptable solution to a difficult problem until trial, when a full investigation will be made: Sypher v. Sypher (1986), 1986 6337 (ON CA), 2 R.F.L. (3d) 413 (Ont. C.A.) at p. 414. There is a long line of cases prior to the decision in F.K. v. A.K. that insist on a stringent test. I will mention only a few.

[29] In Crawford v. Dixon (2001), 2001 28121 (ON SC), 14 R.F.L. (5th) 267 (Ont. S.C.), at para. 14, Granger J. cited with approval James G. McLeod’s commentary on Dancsecs v. Dancsecs (1994), 1994 7434 (ON SC), 5 R.F.L. (4th) 64 (Ont. Gen. Div.), in which he stated:

On balance, although the court should not make it a practice to vary final orders on an interim basis, if the moving party makes out a clear case for relief and proves that the need for the variation is urgent, there seems to be little reason to deny the power to vary. Such a denial might encourage the other side to delay.

[30] In Fredette v. Fredette, [2005] O.J. No. 4938 (S.C.), at para. 5, Del Frate J. adopted the same passage.

[31] In Innocente v. Innocente, 2014 ONSC 7082, 54 R.F.L. (7th) 93, at para. 45, Gauthier J. stated that where a temporary or interim variation of a final order has been granted, whether under the Divorce Act or the Family Law Act, R.S.O. 1990, c. F.3, the courts have found the following exceptional circumstances: to prevent undue hardship, where the failure to make the interim order would be incongruous or absurd, or where there is pressing and immediate urgency.

[32] In Berta v. Berta, 2019 ONSC 505, 23 R.F.L. (8th) 201, after reviewing a number of authorities with regard to the test for an interim variation of a final support order, Kurz J. found that the test has included a requirement that the moving party establish a clear case of hardship and urgency. And in Ivens, Kurz J. found that those same two prerequisites also apply to an interim variation of a parenting order.

[33] In addition, the more elaborate formulation of the test in F.K. has itself been cited with approval in many subsequent cases, including A.T.W. v. K.A.W., 2020 ONSC 4894, 45 R.F.L. (8th) 391, at para. 42, Tone v. Tone, 2021 ONSC 3747, 57 R.F.L. (8th) 376, at paras. 22-23, A.T. v. E.R.P., 2021 ONSC 4693, at para. 33, S.E.S. v. T.J.B., 2021 ONSC 2357, at paras. 62-63, Ramirez v. Estupinan, 2021 ONSC 5122, at para. 32, and Joachim v. Joachim, 2021 ONSC 7424, at para. 34.

[34] The motion judge himself explained the fundamental reason for placing the bar very high on all interim motions to vary custody or parenting orders in M.H. v. L.K., 2021 ONSC 560. He stated, at para. 27, that he found significant guidance in the judgment of Wright J. in Kimpton v. Kimpton, [2002] O.J. No. 5367 (S.C.), at paras. 1 and 2. At para. 2 of Kimpton, Wright J. stated:

Unless the courts insist that they will not disturb the existing arrangements for children on interim motions except in those cases where it is clear that the children are being exposed to danger or there is some other compelling reason, the courts will continue to be confronted with litigants demanding that the court embark upon the impossible task of attempting to assess the relative merits of parties who have filed numerous affidavits contradicting the affidavits of the other.

[35] Similarly, in Psaila v. Sandurska, 2020 ONSC 4291, McDermot J. stated, at para. 10:

However, more is required in the case of a temporary change to a final court order and lengthy status quo. This is partly because the court is usually addressing this issue through untested and unreliable affidavit evidence that is often conflicting, and impossible to reconcile. As well, the final arrangement sought to be changed is also presumed to be reflective of what the parties thought the best interests of the children were at the time that the agreement was struck.

[36] And in Southorn v. Ree, 2019 ONSC 1298, McDermot J. made the following observation, at para. 13:

It is presumed that where parties have agreed to a time sharing arrangement, that arrangement best reflects their initial assessment as to the best interests of the children. Moreover, to change custody on an interim motion runs the risk of the child going through two changes of custody: one after the interim motion and another at trial. That would create more, not less, instability in the child's life. Moreover, evidence at a trial has the benefit of being tested through cross-examination whereas evidence at a motion is by affidavit where conflicting versions of the truth cannot be determined with any certainty and the court is unable to make credibility findings.

[37] Finally, in Mudry v. Danisch, 2014 ONSC 4335, 323 O.A.C. 335 (Div. Ct.), at para. 155, Sanderson J. identified an additional reason for this stringent legal test. She stated that in custody and access matters, temporary orders often create a status quo that is difficult to alter at trial.

[38] To all of this, the appellant added, in her factum, that this stringent test (i) ensures that important and difficult decisions relating to a child’s best interests are not, save for exceptional circumstances, made on the basis of incomplete information, (ii) limits the amount of judicial resources that are allocated to cases which have already been resolved by way of a court order, and (iii) ensures that a child’s routine and schedule are not turned upside down on a motion only to be potentially changed again at a final hearing. I adopt these considerations as well as those identified in the cases I have referred to.

[39] The motion judge accepted the statement of the law in F.K. v. A.K., with one caveat. While he agreed that there must be compelling evidence to support changing a final order on an interim basis, he cautioned that the stringent test in F.K. v. A.K. should not be read in a manner that places too much emphasis on maintaining the status quo.

[40] I have already said that the imposition of a stringent test for the granting of a temporary variation of a final parenting order of a court is sound in principle and consistent with authority. Before embarking on an inquiry into the best interests of the child, the court must first be satisfied that circumstances exist of so compelling and exceptional a nature that they require an immediate change. I would only caution that there may be exceptional circumstances that justify a temporary variation of a final order other than those described in F.K. v. A.K. It will be recalled that Pazaratz J. insisted that a temporary variation of a final parenting order could only be made where the child’s physical and/or emotional well-being is in jeopardy and the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation. That is certainly an indication of how exceptional the circumstances must be to make an interim variation of a final parenting order, but I would not foreclose the possibility that other, equally compelling circumstances might meet the test.

[41] As I said, the motion judge accepted the statement of the test for an interim variation of a final order in F.K. v. A.K., subject to a caveat. He stated, “While the mother submits that the stringent legal test in F.K. is apt, I find that read in isolation, the F.K. decision may result in a judge placing too much emphasis on maintaining the status quo, which could skew the legal analysis which remains the best interests of the child.” Whether or not this caveat is simply an inconsequential gloss on the correct test, or is instead a misconceived watering down of the test can only be determined by examining his purported application of it.

Did the motion judge fail to apply the correct legal test for a temporary variation of a final parenting order on an interim motion?

[42] The motion judge recognized that “there must be compelling evidence to support changing a final order on an interim basis.” As I read the reasons of the motion judge, he accepted that courts must exercise caution before changing an existing arrangement that children have become used to, that the level of required caution is particularly heightened if the court is being asked to change a final parenting order on a temporary basis, and that the evidentiary basis to grant such a temporary variation must be compelling. However, as I have said, he warned against placing too much emphasis on maintaining the status quo. In my view, as will be seen, this caveat led him into error.

[43] In reaching his decision to vary the parenting schedule on the interim motion, the motion judge proceeded in the following manner. Rather than considering even in a preliminary way whether there were compelling reasons to vary the parenting order on a temporary basis, he immediately embarked on a detailed consideration of the best interests of the child.

[44] He began his consideration of O.’s best interests by scrutinizing her views and preferences as reported in two conflicting Voice of the Child Reports (“VOCR”) prepared by the same therapeutic consultant, an initial report dated December 1, 2020, and an updated report dated March 14, 2021. In preparing the reports, the author met with O., S.H. and D.K. separately.

[45] In one of her meetings with O. in the preparation of the initial VOCR, the author reported that the following exchange took place:

A: [unprompted] Can I just tell what I want the schedule to be? I want to make the schedule, NOT their lawyers, NOT the judges, ME.

Q: If you could make the schedule, what would it be?

A: I have no idea but if I get to do it, I would take my precious time to figure it out. I want it to be 50/50.

Q: Why do you want it to be 50/50?

A: I want to see both sides of my family.

[46] In her meeting with O. in the preparation of the updated VOCR, the author reported that the following exchange took place:

A: [unprompted] I am changing my answer.

Q: What is the question?

A: I want the schedule to stay the same. I don't want to spend less time with my mom.

Q: [not the exact words] What has changed since we last met?

A: I just didn't want to hurt my parents. I want the schedule to stay the same as it is now.

Q: [not the exact words] What was different when we last spoke?

A: I didn't want to disappoint my dad.

Q: Do you think your dad knows how you feel?

A: I think he does but he doesn’t.

Q: Do you think your dad will be upset?

A: Why wouldn’t he be?

Q: [not exact words] Does that worry you?

A: I would prefer he wouldn't be upset.

Q: Do you feel that if you do want to spend more time at your dad’s you are free to do so?

A: Yes, I do feel I can.

Q: [not the exact words] Do you think your mother knows how you feel?

A: Yes.

Q: [not the exact words] What other feelings or thoughts led to your current view?

A: I like how it is right now and I am not in the mood for change right now. I love both of my parents, but I don’t want the schedule to change. I have had a lot of change. It stressed me out so much. The situation was so stressful.

[47] Given the apparently contradictory positions taken by O. in the two reports, the motion judge concluded that “it appears that, on some level, O is conflicted about her preferred parenting arrangement.” He noted that the parents posited different reasons for this. But without hearing evidence from either parent, the child or the author of the reports, he felt able to determine that the initial report more accurately reflected O.’s true position and dismissed O.’s statement in the updated report that she had made her comments in the first report because she did not want to disappoint her father. He articulated a number of reasons for being able to do so.

[48] First, he said, the author interviewed O. three times for the initial report, but only once for the updated report. Second, he noted, the substantive part of the initial report was five pages long, while the substantive part of the updated report was just one page long. Third, he relied on the fact that the mother sought the updated report (although the husband acquiesced in it) hoping for a different outcome. And fourth, O. volunteered that she had changed her mind in her interview for the updated report without being asked a question (although O.’s comments about the parenting schedule were also unprompted in the interview disclosed in the initial report) and then cancelled further meetings with the author. The third and fourth consideration led him to conclude that the mother exercised some undue pressure on O. to change her mind.

[49] I pause to make two observations. First, the first VOCR was itself in many respects contradictory. And second, while the motion judge noted the father’s evidence that in his opinion, the second VOCR was the product of the mother's relentless pressure on O. to change her mind, he ignored two pieces of evidence that pressure was exerted on O. by her father to answer the questions in a manner favourable to him.

[50] The first of these is the fact that when the author asked O. at the outset of the first interview if she knew what the author’s role was, O. responded, “According to my Dad, you are the one who will make my life easier and give me a voice.” When asked how this would make her life easier, she said that she didn’t know.

[51] Second, in reaching his conclusion, the motion judge did not advert to the irrefutable and troubling evidence that after the second report was released, the father subjected O. to a barrage of calls (30 in number) and texts while she was in a virtual class and taking a test that caused her to become distraught and start crying during the test. The texts themselves reveal significant tension between O. and her father and include expressions of displeasure on the part of the father with the views and preferences O. expressed in the second report that could charitably be described as bullying. In those texts, amongst other things, he threatened to cancel O.’s math tutor, told her that she was incapable of knowing what a healthy father-daughter relationship is, and said that she had messed up their relationship with lies. In his affidavit filed on the motion, the father said that he was ashamed and embarrassed by these communications.

[52] I do not recite all of this to suggest that on a full hearing, the trial judge will not conclude that the schedule should be changed. I say it to underscore the inadvisability of deciding an issue such as this in the face of contradictory and largely untested evidence, which the motion judge characterized as “very contested evidence”. The evidence strongly supports the view that O. was being pulled in both directions, was trying to please both parents in the answers she gave and wanted their fighting to stop. I find it difficult to understand how the motion judge so confidently felt capable of discerning the true views and preferences of O. on this record, and then, as he put it, “accorded [them] significant weight amongst the rest of the factors.”

[53] The other considerations relied on by the motion judge to determine that it was in the best interests of O. to change the parenting schedule were the following: for a 12½ year old, it is preferable to have fewer transitions between parents; there was evidence that the father genuinely wanted to spend more time with O.; given the age gap between O. and her 2½ year old half-brother born of her father’s second marriage, O. might otherwise have limited time to nurture a relationship with him before she reaches the stage of post-secondary education which may occur out of town; and he saw no reason why the father should not benefit from maximum contact with O.

[54] After concluding that the change was in the best interests of O., the motion judge stated, “I could end the analysis there, but I am obliged to demonstrate why the change from the status quo is compelling.” He then gave two reasons for concluding that the change was compelling. First, because the parties agreed that O. is under a great deal of stress, and a week about schedule is likely to provide less transitions for O. between parents and is more conducive to greater predictability as to where O. will be at any point subject to holiday and vacation exceptions. And second, because he perceived it to be “a more accurate expression of O.’s true wishes.”

[55] As I noted earlier, the motion judge appeared to accept that on an interim motion to vary a final parenting order, the stringent legal test in F.K. is apt, but cautioned that read in isolation, the F.K. decision might result in a judge placing too much emphasis on maintaining the status quo. This, in turn, could skew the legal analysis, which remains the best interests of the child. He later accepted that before making such an order, he was “obliged to demonstrate why the change from the status quo is compelling.” But upon reviewing his analysis, which I have outlined, it is plain that he rejected the meaning given to the concept of compelling circumstances in the caselaw, including his own decision in M.H., conflated his determination of the best interests of the child with a finding of compelling circumstances, and effectively threw the caution required on an interim motion to the wind.

[56] In this regard, it is telling that the motion judge reached his conclusion about the best interests of the child first, and then reasoned backwards, simply labelling as compelling the two principal considerations that informed his determination that a change was in the best interests of the child. Whether or not these considerations would provide justification for a change on a final and full hearing, it is impossible to imagine that a contradictory statement of the child’s preference together with the desirability to reduce the number of transitions between parents are compelling reasons to make a temporary change.

[57] It is also telling that although the motion judge properly took into account the stress that O. was under in concluding that there were compelling circumstances that justified a variation of the final order, he did not explain how the change in parenting schedule would in any way reduce that stress. In fact, there is nothing in the record that could explain it.

[58] In my view, the reasons of the motion judge underscore the rationale for limiting relief such as this on interim motions to exceptional or urgent circumstances. As I have already noted, in M.H., the motion judge adopted the following statement of the law, which bears repeating:

Unless the courts insist that they will not disturb the existing arrangements for children on interim motions except in those cases where it is clear that the children are being exposed to danger or there is some other compelling reason, the courts will continue to be confronted with litigants demanding that the court embark upon the impossible task of attempting to assess the relative merits of parties who have filed numerous affidavits contradicting the affidavits of the other.

[59] Yet that is precisely what the motion judge did. In the absence of exceptional circumstances, he made a decision on the basis of incomplete information, embarked upon the impossible task of attempting to assess the relative merits of the positions taken by parties who have filed contradictory affidavits, and of reconciling what he viewed as contradictory VOCRs without hearing from the author. He made a decision that creates the risk of the child going through two changes to her parenting schedule, one after the interim motion and another after trial, that would create more, not less, instability in the child’s life. And he increased the judicial resources that must be expended to resolve the dispute between the parents by effectively bifurcating their opposing applications. The relief sought by the mother, and the father’s own claim for joint custody remain to be determined.

[60] Finally, rather than limiting his analysis to the existence of exceptional circumstances and the best interests of the child, he also took into account the best interests of the father, when he said that he saw no reason why the father should not benefit from maximum contact with O.

[61] I noted earlier the motion judge’s caveat on the stringent legal test in F.K. that cautioned against placing too much emphasis on maintaining the status quo may have led him into error. I am satisfied that it did. Having reviewed his reasons in detail, I am driven to the conclusion that he watered down the importance of maintaining the status quo on an interim motion, and that his approach runs directly contrary to what Benotto J. said in Davis v. Nusca, that “there is the basic principle of maintaining the status quo until trial which is extraordinarily important in family law cases.” The motion judge lost sight of the importance of maintaining the status quo until trial and conflated the requirement that there be compelling reasons to make an order on an interim basis with a determination of the best interests of the child. He gave the requirement of compelling reasons no real meaning, and disturbed a long-standing parenting arrangement on an interim basis in the complete absence of urgent, exceptional or in any other sense compelling reasons. In effect, he gave final relief on an interim motion.

DISPOSITION

[62] The appeal is allowed, the motion judge’s order dated June 25, 2021, temporarily varying the parenting schedule of O. and the related costs order dated September 7, 2021, are set aside, and D.K.’s motion for an interim variation of the final order of J. Wilson J. dated May 15, 2017, relating to the parenting schedule for O. is dismissed.

COSTS

[63] Costs of the motion before the motion judge in the amount of $25,000 all-inclusive were awarded to the respondent. That order is set aside, and I would award costs of the motion in that same amount to the Appellant.

[64] Costs of the motion for leave to appeal were fixed in the amount of $5,000 all-inclusive in the discretion of the appeal panel. I would award costs of the motion for leave to appeal to the appellant in that amount as well.

[65] Finally, the parties agreed to costs of the appeal in the amount of $10,000 all-inclusive. I would award costs of the appeal in that amount to the appellant.

Dambrot J.

I agree _______________________________

Swinton J.

I agree _______________________________

Copeland J.

Released: February 24, 2022

CITATION: S.H. v. D.K., 2022 ONSC 1203

DIVISIONAL COURT FILE NO.: DC-21-0000-548-000

DATE: 20220224

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Dambrot, Swinton and Copeland J.J.

BETWEEN:

S.H.

Applicant (Appellant)

– and –

D.K.

Respondent (Respondent in Appeal)

REASONS FOR DECISION

Dambrot J.

Released: February 24, 2022

[^1]: See his reference to para. 52(d) of F.K. v. A. K., 2020 ONSC 3726, 43 R.F.L. (8th) 411.