SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-12-17583
DATE: October 5, 2012

APPLICANT: David Huliyappa

RESPONDENT: Radha Menon

BEFORE: Mr. Justice Perkins

COUNSEL:
Dana Cohen , for the applicant father

Gabrielle Pop-Lazic, for the respondent mother

Seema Jain, for the Children’s Lawyer on behalf of the child

ENDORSEMENT

[ 1 ] The mother has moved for an order changing the joint custody provision in a final consent order of this court. She seeks custody of the child and primary residence with her.

[ 2 ] The parties married in 1995. Their daughter Maya was born February 10, 1997. They separated in 2002 and were divorced in 2007.

[ 3 ] The parties operated by agreement between 2003 and 2007, with Maya residing primarily with the mother. On February 8, 2007, this court ordered, on consent, that the parties have final joint custody of Maya but that her primary residence was to be with the mother. The actual time spent with each parent was to be roughly equal, according to the order. That order was changed, again on consent, by a final order made on August 13, 2009 that cancelled the father’s child support obligation “on account of the child’s current residency schedule”, which was not specified in the order, but which was that Maya actually lived primarily with him at the time. The formal joint custody provision of the 2007 order was not changed. Maya’s residential arrangements had changed because in August, 2008, the mother remarried and moved to Hamilton, while Maya remained in Toronto with the father. The mother had the child with her in Hamilton on alternating weekends and occasionally during the week.

[ 4 ] In the summer of 2011, the father was notified by a lawyer hired by the mother on behalf of Maya (then 14) that she intended to move to Hamilton to live with her mother and go to a particular school there. The father rejected that proposition. On September 6, 2011, Maya began the school year at the Toronto school she had been registered in by the father. The following weekend, she went for a scheduled visit at her mother’s home and refused to return to the father’s home at the end of the weekend.

[ 5 ] On September 13, 2011, the father issued and served an application for sole custody (rather than a motion to change the final order of 2007 or 2009) along with an urgent motion for the immediate return of Maya to his home and an order confirming her residence with him and her attendance at the Toronto school.

[ 6 ] On September 15, 2011, D.A. Wilson J. of this court released a decision in which she granted the father’s motion for an order requiring Maya’s return to his home and her Toronto school. In reasons dated September 27, D.A. Wilson J. criticized the mother for how she handled the issues of Maya’s residential and school choices; did not opine on what living arrangement or school was in Maya’s best interests; commented that the evidence before her was not “a full evidentiary record”; and said that much of the mother’s evidence was of no assistance in dealing with the question before her, which was only the return of the child.

[ 7 ] The court requested the Children’s Lawyer’s assistance in December, 2011 at a case conference. The Children’s Lawyer appointed counsel and worked with the parties and the child. In May, 2012, the Children’s Lawyer’s held a “disclosure meeting” in which Maya’s wishes and preferences were communicated to the parties. At that time, her wishes were reported to be to continue to reside primarily with the father and go to school in Toronto.

[ 8 ] During the spring and summer, the Children’s Lawyer warned the parties that Maya’s stress was increasing as the conflict between the parents continued. In May, Maya was taken to the Hospital for Sick Children for evaluation when it came to light that she had been cutting herself. She was referred for counselling. In the summer, Maya spent a large block of time with each parent.

[ 9 ] At the end of the summer, Maya left her father’s home abruptly and went to her mother’s home in Hamilton. It appears she had her mother’s assistance in getting there. She has remained there and refuses to return to her father’s home. She has not been going to school because the school she says she wants to attend in Hamilton would not enrol her in light of the order of September 15, 2011. She has been commuting daily from Hamilton to her Toronto school and back to the mother’s home.

[ 10 ] On September 21, the mother served the motion before me for decision, claiming an order for custody of Maya, access to the father in accordance with Maya’s wishes, Maya’s residence to be in Hamilton and Maya to attend a particular Hamilton school. The father relies on the order of September 11, 2011 and asks that the mother’s motion be dismissed. The Children’s Lawyer reports Maya’s wishes and preferences are to live with the mother and go to school in Hamilton and accordingly supports the mother’s motion.

[ 11 ] The father objected to this motion proceeding at all. He submitted there was already a temporary order made last September determining the issues and the next step really ought to be a trial or at least a motion at which oral testimony would be heard. However, the motion before the court last year was only to determine whether the 2007 final order should be enforced, in the absence of any other motion before the court. I now have before me a different plan advanced by the mother by way of a motion. The reasons of September 27, 2011 contemplate a “motion to vary”, which is what the mother has put before me, “made on a full evidentiary record, perhaps containing expert opinion”. A case in which a party seeks to change a final custody order is required by rule 15 to be brought by way of a motion. The evidentiary record is affidavits. It is open to the court to direct the trial of an issue with oral evidence, but that is often not required or may not be appropriate, especially if there is an urgent matter to deal with. It would not be possible for a trial to be arranged until sometime in 2013.

[ 12 ] The father also submitted there was no material change in circumstances before me. I agree with the mother that the relevant times for comparison are August 13, 2009 (the date of the second final order) and today. Maya is three years older now, and while her views and preferences may not have been a big factor when she was 12½ – and in any event, they were not an issue between the parents at the time – they are a very important factor now that she is 15½ and now that her wishes and her best interests are in dispute. There have been two successive years of strife between the parents about Maya’s residence and school. There is evidence from all sides that Maya is under very serious stress as a result of the residence issue and the conflict between the parents. All of these facts amount to a material change in circumstances.

[ 13 ] The father submitted the mother was not entitled to relief from the court, relying on rules 14 (23) and 1 (8), because the mother was in breach of the orders of this court. However, the order of last September 15 was complied with. The father must establish the mother (not Maya) is in breach of the 2007 or 2009 order. If he does, it is still open to the court to relieve the mother from compliance if the best interests of the child require a change.

[ 14 ] So it all comes down to my appreciation of the evidence and of Maya’s best interests.

[ 15 ] The mother, the father and the Children’s Lawyer all filed evidence. The mother’s evidence relates how she has been trying to persuade Maya to continue residing with the father but that Maya has become increasingly resistant over time, until now she outright refuses to return to the father. The father blames the mother for manipulating Maya and secretly making arrangements behind his back, with Maya required to help keep the secrets.

[ 16 ] The Children’s Lawyer provided evidence in the form of letters (appended to affidavits) from a child and youth worker at Maya’s Toronto school and from Maya’s counsellor. The letters were obtained by Maya, not by the Children’s Lawyer, and the father says the mother put her up to it. The father submitted they were unreliable for this reason and also they were objectionable as hearsay. I disagree. These letters were provided by third party professionals expressly for use by the court as an expression of Maya’s wishes and an explanation of the context of those wishes, including Maya’s state of mind. I find they are entitled to be received and considered as such and they are sufficiently reliable, given the source and the purpose for which they were provided, to be given some weight. This evidence indicates Maya is dealing with considerable pressure from her father, is happier when living with her mother and is in need of the peace that the mother’s home gives her. The Children’s Lawyer accepts that the views expressed by Maya now are not consistent with those provided last spring at the disclosure meeting. The explanation for the change is that the parental conflict has continued and intensified, that Maya had time with each parent for an extended period over the summer to assess and test out how living with each would feel and that Maya’s current view is the more considered one – she wishes to remain with her mother and attend the Hamilton school.

[ 17 ] The Children’s Lawyer also rejected the father’s submission that Maya’s self harming behaviour was a result of the mother’s pushing Maya away and declining to see her for three weeks when she expressed a wish to continue to live in Toronto. I am not satisfied that the mother actually did refuse contact during that period, but even if she did, the situation from June to date is that Maya has expressed a strong preference for residing with the mother, and demonstrated her seriousness by commuting daily to school in Toronto from Hamilton.

[ 18 ] I am very concerned when I see a child under such stress that she cuts herself. There is only one identifiable source for that – the conflict in this case. Maya needs physical and emotional security, and the evidence before me satisfies me that she finds more of that with her mother than her father. Her best interests include a consideration of her wishes, which at this age carry great weight. Then there is the practical matter that Maya is only four months short of age 16, at which point it becomes very problematic for the courts to enforce arrangements contrary to a child’s wishes. Even if a child’s wishes have been shaped or manipulated by a parent, the courts will sometimes accede to the child’s wish to live with that parent if the evidence indicates that the parent is going to provide the physical and emotional care that the child needs, while maintaining the child’s relationship with the other parent, and the other parent does not have a clearly better plan. I am in any event not persuaded that Maya has been unduly pressured by the mother.

[ 19 ] The standard for making a temporary order to change custodial arrangements in a final order is not clear in the case law, but I generally adopt the test of whether there is, on the balance of probabilities, a clear and compelling need to make a change. I find that the test has been met here, and that Maya’s best interests require a change now.

[ 20 ] There will be a temporary order that Maya is to reside with the mother and attend the school in Hamilton selected by the mother and Maya, with the father to have time with Maya in accordance with her wishes, but unless she indicates a contrary wish Maya is to spend every other weekend and half of the school breaks with her father.

[ 21 ] The parties must have a settlement conference before this matter proceeds for a final order on a contested basis.

[ 22 ] Costs of the motion will be dealt with by written submissions, not more than three pages long (plus costs outline and relevant offers), to be served and filed in the continuing record, with the mother having the opportunity to serve and file a two page reply. Cases may be filed separately if required. Either party may obtain a half hour costs hearing before me through the trial coordinator for a time when I am sitting in November. If no costs hearing is requested by October 31, the decision will be based on the written submissions. The mother is responsible for having the file sent to me.

October 5, 2012 ____________________________________

Perkins J.