ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 490/01
DATE: 2012-11-27
BETWEEN:
KIM ROBIN HARDING Applicant – and – ROBERT HENRY McCULLOUGH Respondent
Self-Represented
Kirsten Hughes, Counsel for the Respondent
C. Paul, Counsel for the Office of the Children’s Lawyer
HEARD: November 14, 15 & 16, 2012
REASONS FOR JUDGMENT
MURRAY J.
[ 1 ] There were two motions before the Court. The respondent initiated a motion asking that the applicant be found in contempt for various alleged breaches of the final order of Justice Quigley made on September 30, 2009. The applicant brought a motion dated April 12, 2010, in which she sought to change the final order of Justice Quigley. Both matters were set down for trial to be heard together.
[ 2 ] At the outset of the proceedings before me, the respondent advised that he was abandoning his motion for contempt.
[ 3 ] The Court proceeded to hear evidence with respect to the applicant's motion to change the final order of Justice Quigley.
Background
[ 4 ] The applicant Kim Robin Harding of Burlington, Ontario was born on […], 1958. She is employed as a flight attendant for a large national airline.
[ 5 ] The respondent Robert Henry McCullough of Burlington, Ontario was born on […], 1858. He is a businessman.
[ 6 ] The parties never married. They lived together from March 1999 to May 2000 at which time they separated. Alexa Kimberley Hope Harding-McCullough was born on […], 2001. Except for one period of cohabitation from April 2006 to June 2007, the parties have lived separate and apart since the birth of Alexa.
[ 7 ] As a result of final Minutes of Settlement made by the parties, on September 30, 2009, Justice Quigley issued a final order incorporating the settlement reached by the parties.
The Motion of the Applicant.
[ 8 ] In her motion, the applicant sought two changes to the detailed final order made on consent by Quigley J. The order of Quigley J. provided for joint custody of the child of the union, Alexa Kimberley Hope Harding-McCullough born […], 2001, and further provided that Alexa was to reside equally at the residence of the applicant and the respondent on a week about basis. The applicant sought the following changes:
that sole custody of Alexa Kimberley Hope Harding-McCullough born […], 2001 be granted to her;
that the week about arrangement be terminated and that access to Alexa by the respondent be restricted and supervised;
[ 9 ] The basis of the case for the applicant was that there is ongoing conflict between the parties which makes the current arrangements difficult if not unworkable.
The Position of the Respondent
[ 10 ] The respondent wanted preservation of the status quo and no change in the order of Mr. Justice Quigley.
The Position of Alexa
[ 11 ] Alexa was represented in these proceedings by the Office of the Children's Lawyer. As noted above, Alexa is 11 years old. Her voice, expressed through Ms. Paul for the OCL, is worthy of respect and is certainly a factor to be taken into account by this Court. Alex’s counsel made it abundantly clear that Alexa wanted three things:
a continuation of the week about relationship which allows her to spend every other week with each parent;
a cessation of conflict between her mother and father, including a cessation by the parents of calling the police to enforce their rights; and
braces for her teeth.
The Evidence of the Applicant
[ 12 ] The evidence of the applicant made it clear that the conflict between the parties which existed before the order of Justice Quigley has not abated after the order. Her evidence established that conflict between her and the respondent is a continuum and has been since before Alexa was born.
[ 13 ] The respondent moved for non-suit after the applicant's evidence on the basis that the applicant had not established a material change. The respondent elected to call no evidence.
Analysis
[ 14 ] The order of Justice Quigley was made on consent of the parties after final and binding minutes of settlement were reached. This agreement incorporated into the order of Justice Quigley is extremely detailed and intended to govern the relationship between the parties which had been fractious and difficult. The agreement deals with a shared parenting plan, vacation entitlements, Easter breaks, residency, specific holiday weekends, mobility, Alexa's summer vacation, Alexa's education, Alexa's physicians and dentists, her medical and dental expenses, her extracurricular and athletic programs, Alexis’ counselling, parenting coordination, communication, mediation, child related expenses, child-support, security for child support, spousal support, and other detailed provisions designed to regulate the conduct of each party as it relates to Alexa. In fact, the detail contained in the order of Justice Quigley clearly reflects what became apparent after hearing the evidence of the applicant which is that the applicant and the respondent were engaged in toxic and relentless conflict before the date of the order on September 30, 2009 and that they needed a detailed order in order to try to find a means to regulate their parenting responsibilities. Regrettably for Alexa, the final agreement which was incorporated into the final order has not changed the conduct of either parent.
[ 15 ] Conflict relating to Alexa is the only constant in this relationship. It is apparent that virtually nothing of significance can be left to the parties to decide on a rational basis taking into account the best interests of Alexa. Even having Alexa fitted with braces by an orthodontist is a matter which cannot be resolved. They both recognize that Alexa needs braces and both blame each other for the failure to agree on how to respond to this need. Each of them calls to mind the “silky sullen dame” described by Robbie Burns who gathers her brows “like gathering storm, nursing her wrath to keep it warm.” If there is anything that these parents do well it is nursing their wrath to keep it warm. Both blame each other. Their communications and their conduct towards each other reflect an extraordinary capacity by both of them to find areas of disagreement and conflict. Both involve Alexa in the conflict. In the meanwhile, neither one of them hears Alexa’s plea for an end to hostilities.
[ 16 ] This case is analogous to that of Litman v. Sherman , [2008] O.J. No. 2398, 2008 ONCA 485 , in which the Court of Appeal dealt with similar circumstances of continuing conflict. At paras. 34-37 of the Litman decision, the Court of Appeal had occasion to deal with a situation where parents’ chronic difficulties in resolving parenting issues did not amount to a material change in circumstances. The Court of Appeal contrasted the facts in Litman to the case of Griffin v. Bootsma , [2004] O.J. No 2781 , stating:
To support her argument, the mother cites Griffin v. Bootsma , [2004] O.J. No 2781 where the parents’ chronic difficulties in resolving parenting issues were found to amount to a material change in circumstances.
In Griffin , however, the trial judge held that the parties could not have anticipated the conflict at the time they settled their custody dispute. The subsequent turn of events, they're turning into a “high-conflict couple” was therefore a “change” that was not foreseen according to the words of McLachlan J in Gordon , supra .
That is anything but the case here. According to the trial judge, “since the birth of their child, the parties’ have been altogether incapable of cooperating with one another in order to raise Rachel.”
This finding is well supported by the evidence. The parties’ willingness to work through a parenting coordinator does not detract from that finding; rather it reinforces it, given one was necessary to begin with and given this regime quickly deteriorated and proved unworkable. It follows that, unlike in Griffin , the conflict between the parties did not constitute either a change or a situation that could not have been foreseen by them at the time of Nelson J.’s order.
Since the threshold issue was not established, the trial judge had no jurisdiction to vary the custody order of Nelson J.; therefore, the order granting custody of Rachel to the mother must be set aside.
[ 17 ] The applicant has been unable to establish material change in circumstances. It is well-established by Gordon v. Goertz , [1966] 2 SCR 27 that before a Court can consider the merits of an application for variation of a custody order, it must be satisfied that there has been a material change in circumstances since the last custody order was made. The trial judge must be satisfied that there has been a change in the condition, means, needs or circumstances of the child which materially affects the child and which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. The applicant cannot meet this threshold requirement. The inquiry therefore can go no further.
[ 18 ] While this is sufficient to dispose of the application for change of the final order of Mr. Justice Quigley, even if I were wrong and the applicant had established a material change in circumstances, I have listened to Alexa who, through Ms. Paul, firmly and clearly expresses her wish to maintain the current joint custody and week-about arrangements. Alexa does not want this Court to reduce access to her father. Alexa is 11 years of age. She is described by her counsel, Ms. Paul from the Office of the Children’s Lawyer, as a quite extraordinary, resilient and talented young person. Ms. Paul also advised the Court that the Office of the Children's Lawyer supports Alexa’s objectives. These are distinct and powerful reasons to dismiss the application.
[ 19 ] Apart from wanting to maintain the week-about and joint custody status quo, Alexa wishes for one main thing: a cessation of the toxic conflict between her parents who she describes as “arch enemies”. Alexa does not want to hear one parent criticize the other. She does not want to pick who she has to spend time with. She does not want to be prevented from seeing dad as much as mom. She does not want to be involved in her parents’ arguments about her. She does not want the police called. She does not want to be involved in discussions about finances. She does not want to share the blame. She does not want to be a messenger of toxic messages.
[ 20 ] Alexa’s prayer for relief, so simply and eloquently put to the Court by Ms. Paul, is for peace between her parents. Of course Alexa wants more. She wants no more police involvement. She wants braces to fix her smile. Alexa’s world is small and at age 11, her parents are the most important people in it. Like John Lennon, she can only imagine what it would be like to have parents who do not fight. “Imagine all the people living life in peace. You may say I'm a dreamer, but I'm not the only one. I hope someday you'll join us, and the world will be as one.”
[ 21 ] The applicant and the respondent have learned nothing from countless third parties, mediators, counsellors, lawyers and judges who have asked them on behalf of Alexa to stop their conflict. Warnings about the potential adverse impact on an innocent child have done nothing to cause an abatement of hostilities. This is not a case of their failure to recall the past and being condemned to repeat it. It is a case of their not being able to get over the past and not being able to learn from it. Relentless, hurtful and self-indulgent parental conflict has been Alexa’s constant friend and companion. For her entire life Alexa has been nurtured on the thin gruel of conflict. Each of the applicant and the respondent has a duty and an obligation to provide a sanctuary for her - a stable and warm place where she can be loved and protected from hurt. For her entire life, her parents have told Alexa to look elsewhere for sanctuary. Their endless conflict and dereliction of parental duty reflects their confirmed unteachability.
Conclusion
[ 22 ] The applicant’s motion to change is dismissed.
Costs
[ 23 ] With respect to the respondent’s contempt motion abandoned at the outset of trial, the applicant was advised that she could seek costs on the basis set out in Fong et al. v. Chan et al., 1999 2052 (ON CA) , 46 O.R. (3d) 330. In Fong , the Court of Appeal held that self-represented litigants should be able to recover costs. The head note accurately summarizes the conclusion of the case. It says: “ Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer to conduct the litigation and that, as a result, they incurred an opportunity cost by foregoing remunerative activity.” The applicant advised that she did not wish to pursue costs on this basis. No costs are awarded to her.
[ 24 ] With respect to the applicant’s motion to change, the respondent was successful and is entitled to costs. He seeks $13,000 on a full recovery basis. The respondent made an offer to settle on October 18, 2012 offer proposed the joint retainer of a parenting co-ordinator, with final decision-making authority on all parenting issues and with authority to award costs. This is not an order that this Court has jurisdiction to impose on the parties. (See the Court of Appeal in Kaplanis v. Kaplanis , 2005 1625 (ON CA) , [2005] 194 O.A.C. 106, at paras. 14 and 15 .) Furthermore, there is no reason to believe that the parties can agree on or work with a parenting co-ordinator. I am not prepared to award costs to the respondent on a substantial indemnity basis given his contribution to the parental conflict. I fix the respondent’s costs on a partial indemnity basis in the amount of $7,000 inclusive of disbursements and tax, payable by the applicant to the respondent forthwith.
MURRAY J.
Released: November 27, 2012
COURT FILE NO.: 490/01
DATE: 2012-11-27
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: KIM ROBIN HARDING Applicant – and – ROBERT HENRY McCULLOUGH Respondent REASONS FOR JUDGMENT MURRAY J.
Released: November 27, 2012