CITATION: Albergaria v. Albergaria, 2015 ONSC 3556

COURT FILE NO.: 3791/10

DATE: 2015 06 03

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ELENA MARIA ALBERGARIA

Applicant

– and –

DANIEL PAULO ALBERGARIA

Respondent

Ann Stoner, for the Applicant

Adam Black, for the Respondent

HEARD: March 23, 2015. Written submissions completed May 12, 2015.

REASONS FOR JUDGMENT

Lemay j.

1This is a motion brought by the Father, Daniel Paulo Albergaria (hereinafter “Daniel”) to change the joint custody provisions of the final Order of Coats J., which was reached on consent, and which is quite detailed. This case has a significant procedural history both before and after the Order of Coats J.

2The parties both acknowledge that this has generally been a high conflict case, and the parties have different styles of communicating. It is clear from the record that the parties have approached issues quite differently, and that this has caused, or contributed to, the significant conflict between them.

3However, both parties were prepared to put their differences aside and enter into a joint custody arrangement which was agreed to on November 16^th, 2012. It is a lengthy document that addresses virtually every issue that could arise between the parties. However, there is always room to debate something in every agreement.

4Based on subsequent events, Daniel now seeks to change the joint custody provisions. He is seeking sole custody of both children. Elena opposes this application and asks that joint custody remain in place.

5There are two children of the marriage. Isaiah was born on September 16^th, 2001 (and is now 13½). He has been identified as a gifted child, as well as having a diagnosis of ADHD, and has needed both school based and clinical interventions. Seth was born on April 3, 2004, and is now 11. He has not had any academic, behavioural or health issues of any significance. Most of the facts in this motion revolve around issues relating to Isaiah, but Seth is also involved in the counselling issues.

6I have not considered in any detail the events prior to the agreement of November 16^th, 2012 except to note that this was a high conflict case at the time that the consent Order was made and remains one today.

7In considering this case, I read hundreds of pages of e-mails between Daniel and Elena, as well as some documentation from third parties. In this case, however, the vast majority of the evidence comes from the parties themselves.

The Position of the Parties

8Daniel bases his argument for a change on the following allegations:

a) Elena has resiled from (or repudiated) the dispute resolution mechanism outlined in the agreement that is attached to the Order of Coats J.

b) Elena withdrew her consent for counselling for Isaiah and has failed to cooperate in scheduling that counselling.

c) Elena did not agree to the scheduling of an appointment at McMaster.

9In essence, Daniel argues that the facts underlying these three issues demonstrate that Elena is incapable of cooperating or adhering to the mediation/arbitration agreement that the parties entered into in 2012. Given the history of significant conflict between the parties, Daniel argues that the only way that the parties would have been able to have joint custody would be if there was an effective dispute resolution mechanism. Since Elena, in his view, has resiled from this agreement, joint custody is no longer appropriate.

10Elena’s position is, in essence, that there has not been a material change in circumstances since the final order was agreed to in 2012. She takes issue with Daniel’s interpretation of the dispute resolution mechanism. She also disputes Daniel’s position on the other issues identified above. Finally, she states that although conflict remains between the parties it is at a lower level than prior to the consent Order of Coats J. As a result, conflict is foreseeable, and the test in Gordon v. Goertz, infra has not been met.

11I note that there were contempt issues raised in the original motion materials. However, given that this motion proceeded by way of Affidavit evidence on the consent of the parties and the fact that the contempt issues were not seriously argued, I conclude that there is no basis for making a contempt finding on these facts and I will not consider this issue further.

12Daniel also raised some other allegations in the Motion to Change. However, they were not the focus of argument at the hearing, and they were much less significant than the three that are set out above. I will not consider them further.

The Additional Documentation

13In argument, Daniel’s counsel (Mr. Black) challenged one of the medical reports provided by Elena. The report was from Isaiah’s Paediatrician, Dr. Peter G. Strachan and was dated July 14, 2014, but the first time it was given to Daniel was when Elena provided her Affidavit the week before the motion was heard. The Report deals with the McMaster appointment issue.

14In challenging this Report, Mr. Black pointed to a July 5, 2010 report from Dr. Strachan and observed that it had to be modified because Elena had not provided complete information to Dr. Strachan. This issue was raised during Mr. Black’s reply.

15As a result, I afforded Daniel an opportunity to contact Dr. Strachan and confirm whether there were any additional facts that Dr. Strachan was not aware of that might have changed his July 14, 2014 report. I then allowed the parties to file submissions on this narrow issue.

16Those additional submissions went beyond the narrow issue that I expected them to address, and also addressed the issue of counselling for the children. Each party put their own emphasis on the facts in both cases.

17With respect to the July 14^th, 2014 report and the clarification letter that I received, it is still not completely clear what happened with respect to the McMaster referral, but I will discuss that issue more fully below.

18Finally, I would note that there was some confusion amongst the parties as to how these submissions were to be received by the Court. As a result, I was required to issue an endorsement on May 13^th, 2015 addressing the issues. The matter was then resolved as a result of Ms. Stoner’s prompt, professional and much appreciated correspondence of the same day. I need say nothing further about that matter and it does not factor into my decision. I have considered all of the other submissions that the parties have made in reaching my decision.

The Facts Relating to Daniel’s Concerns

(a) The Dispute Resolution Mechanism

19One of the problems with this case is the fact that it is a high conflict case. Having reviewed voluminous e-mails and other correspondence exchanged between the parties, it is clear that they have difficulties getting along. Indeed, if this case were before me in the first instance, I would have grave concerns about granting joint custody. However, as discussed below, I am faced with a consent Order for joint custody that Daniel is now trying to change. The legal tests that I must appliy are different at this point. I will return to this issue below.

20However, the high conflict nature of this case means that it is critical that the parties have a functioning dispute resolution mechanism. Prior to the consent Order, the parenting coordinator (Mr. Mignorance) noted:

Parenting coordination mitigated the dynamic and conflict between both parents to some extent, but with minimal cooperation from Ms. Albergaria. Given the level of intensity and conflict, joint custody will only be possible with a dispute resolution process that offers both mediation and arbitration. Due to the ongoing nature of the issues before Mr. Albergaria and Ms. Albergaria, parenting coordination is the most appropriate intervention, but it can only be effective if Ms. Albergaria agrees to fully engage in the process, and does engage in it.

21In other words, if the parties were to successfully have joint custody, they needed a dispute resolution mechanism. The joint custody agreement contains a Dispute Resolution Mechanism, which states:

41. If the parties disagree about a term of the Final Parenting Plan attached to these Minutes of Settlement, they will try to resolve the dispute through negotiation, either between themselves or with their respective counsel.

42. If the parties disagree about a term of the Final Parenting Plan attached to these Minutes of Settlement, he or she will give the other, in writing:

a. notice of the proposed change;

b. evidence supporting the proposed change; and

c. any requests for information from the other necessary to determine the issue.

43. A request under paragraph 42(c) will be answered within 15 days.

44. After exchanging any information required by the Minutes of Settlement, the parties will meet personally or through their personal representatives to resolve the issues in dispute. If they come to an agreement, the parties will sign and date an amending agreement before witnesses.

45. If the parties cannot agree within 15 days of the request for review or variation, they will try mediation first and then arbitration.

46. The Applicant will provide the name of three mediators/arbitrators she is agreeable to using. That list shall not include Karen Thompson. The parties shall meet with the three mediator/arbitrators for an initial consultation and they shall mutually decide who to use. The cost of the consultations shall be equally shared between the parties. In the event they cannot decide, then the Chair of the Ontario Bar Association’s Family Law Execute shall appoint one from the list of three.

47. The parties will share the costs of mediation equally.

48. If the parties cannot resolve an issue that has been the subject of mediation, they will arbitrate the dispute.

49. The mediator who conducted the mediation shall conduct the arbitration. The arbitration will be conducted in accordance with the Arbitration Act, and will constitute a secondary arbitration under the Arbitration Act and the Family Law Act.

50. When the mediator and arbitrator are the same person, the parties waive section 36 of the Arbitration Act.

22As I noted at the outset, the joint custody agreement is a comprehensive document. However, the parties cannot seem to agree on its interpretation, as Elena has raised a number of issues in how the dispute resolution mechanism is to be interpreted. She has raised these issues every time that Daniel seeks to use the dispute resolution mechanism.

23More specifically, Elena argues that issues had to be addressed through the disclosure/negotiations phase before the parties could move to mediation. She also noted that she could not afford the mediation process, back in early 2013. Finally, she took the position that the issues that needed to be mediated were unclear.

24The parties had significant e-mail exchanges trying to resolve these issues, particularly in 2013. These exchanges included discussions on, inter alia, the question of who should conduct the mediation, how it should be done and who should pay for it. Having reviewed these e-mails, I find that there was some mutual confusion among the parties about how mediation was to be handled in this case.

25In addition, Elena points out that Daniel did not address issues at the negotiation/disclosure phase of the dispute resolution process. On my review of the documents, there is some truth to that statement. It reflects the different approaches of each parent. Elena tends to insist on every detail of every fact before she is prepared to consider resolving an issue, while Daniel just wants to resolve the issue, and does not worry about the details.

26Ultimately that difference between the parties is a good explanation for why they have different interpretations of the Dispute Resolution Mechanism.

27However, there is another issue between the parties that is more concerning to me. In an e-mail of March 7^th, 2013, from Elena to Daniel which states “please have your lawyer draft and send me an amendment to our agreement which states you will be covering all costs of mediation/arbitration for any issues…” The dispute resolution provisions of the agreement, which I have set out above, clearly and unequivocally state that the parties are to jointly pay the costs associated with this process, several times. Elena is attempting to renegotiate this portion of the agreement. Although there is generally nothing wrong with asking for a change in an agreement, in this case it became a significant issue between the parties, and Elena delayed mediation as a result of this issue.

28As a result, changing the payment provisions is something that Elena is now not entitled to do without Daniel’s consent or a clear change in her circumstances. If the parties wish to have joint custody, they require an effective dispute resolution mechanism, which requires both parties to be committed to it, and to pay for it.

29To be clear, any further attempts by Elena to renegotiate the payment provisions of the agreement in her favour will be considered resiling from the agreement if she uses a renegotiation of the payment provisions as a reason to delay mediation or arbitration. Without clear evidence of a change in Elena’s circumstances, any insistence by Elena on renegotiating the payment provisions would likely be a material change in circumstances as set out in Gordon v. Goertz, but that would be up to the judge hearing the matter to determine. As noted in the Orders section, I expressly give Daniel leave to bring a motion on short notice without the need for a case conference to address this issue if it arises.

30I am going to set out my interpretation of the agreement at this point for four reasons. First, as noted above, Elena’s attempts to renegotiate the agreement were inappropriate and are the source of some of the issues between the parties. This, when combined with my concerns about counselling, raises real concerns that Daniel’s motion should be allowed. I will address those concerns below.

31Second, if I had found that one party or the other had no basis for their interpretation of the documentary exchange provisions of the agreement, I would also be required (for reasons that I have already started to explain, but will elaborate on below) to conclude that a material change in circumstances exists. Finally, in the event that the parties deviate from my interpretation of the agreement, I anticipate that a Court would view that as strong evidence of a material change in circumstances. That will, however, be a matter for a judge hearing a subsequent case to determine, subject to my comments about the costs provisions above.

32Finally, the parties need an effective Dispute Resolution Mechanism if they are to succeed with joint custody. To achieve that they require guidance.

33As a result, I make the following findings that will assist with the interpretation of the agreement.

a. The parties must first identify, in writing, their proposed change and provide information on the reasons it is sought. Although paragraph 42 c) appears ambiguous, disclosure is required from both sides. The side seeking the change must provide this disclosure when the change is sought. The side responding to the request for disclosure has fifteen (15) days from when they receive the written notice of a proposed change to provide the requested information.

b. After the fifteen days have passed from the initial request, the parties move the matter to the next step, which is to meet personally or through their personal representatives to resolve the issues. This movement to the next step happens regardless of whether the responding party has fulfilled their obligations under section 42 c).

c. There is no clear time limit for the personal meeting in the agreement, but based on my interpretation of the agreement, this meeting must be held within fifteen days after the information under section 42 c) was supposed to be provided. In other words, at this stage the parties are no more than thirty days from the date that the initial request was made.

d. If there is no personal meeting within fifteen days, or the matter is not resolved at that meeting, then the issue in dispute proceeds to mediation. At that point, the parties are to meet with mediators and conduct the consultations under paragraph 46.

e. The agreement does not address what happens if the Applicant (Elena) does not provide mediator names, so I will determine that. If she does not provide mediator names within thirty (30) days after the matter proceeds to mediation (being no more than- and possibly less than- sixty days after the initial request was made), then the Respondent (Daniel) is entitled to choose a mediator without notice to Elena.

f. The mediator will determine when paragraph 48 is triggered, and whether arbitration is necessary.

34I expect that, going forward, the parties will adhere to this same interpretation. Counsel are directed to discuss this interpretation between themselves and with their clients and to ensure that everyone shares the same understanding of my directions and of the agreement as a whole. If there are any remaining issues to address, they can be addressed through me, and I expressly retain jurisdiction to do so.

35I should end this section by explaining why it is necessary for me to provide these directions. The parties have, as noted, different styles of managing things. Daniel wishes to move things ahead, while Elena wishes to consider every aspect of every issue. At a certain point, Elena’s approach could be perceived as a delaying tactic. Certainly, in this case, there is evidence that could support the view that Elena was deliberately delaying the mediation process

36However, on this point I prefer Ms. Stoner’s interpretation that Elena simply wishes to consider every aspect of an issue. That does not mean, however, that she is entitled to do so for an indefinite period of time. A perfect parenting decision made when the children are 35 is of no use to anyone. Decisions must be made promptly (as well as thoughtfully), and the timelines set out above are reasonable.

37For a dispute resolution mechanism to be effective, disputes must actually be resolved under it. Elena’s approach of considering every aspect of an issue must, at times, give way to the need for an actual decision to be made. Should Elena persist in her approach in light of these reasons and directions, then that would also be good evidence to support a further Motion to Change. Again, however, that is a matter for the judge hearing such an application to determine.

(b) The Counselling

38Counselling was originally raised by the parenting coordinator in 2012 as being something that was in the best interests of the children. They needed an environment to talk about their worries and their feelings in a neutral context. The need for such an environment became painfully clear in the spring of 2014 when Isaiah told his teacher that he was having suicidal thoughts.

39As a result of the recommendations of the parenting coordinator, the parties engaged the services of Reach Out Centre for Kids (“ROCK”), which is a Halton based organization that provides supportive counselling for children and their families. Both parents provided consent to the family’s involvement at ROCK.

40On May 16^th, 2013, Elena withdrew her consent for the family’s participation in the ROCK program. Daniel was not advised of this decision until May 31^st, 2013. This was communicated in a letter from one of the therapists at ROCK in July of 2013. Counselling did not take place in 2013 or 2014. The efforts to have counselling, particularly for Isaiah, were stronger in 2014. I will review those events in some detail.

41In the fall of 2013, Daniel filed his motion to change. One of the reasons for the motion to change was the cancellation of the therapy at ROCK in the spring of 2013. This case proceeded to a dispute resolution officer’s meeting that was not successful. Then a case conference was held on May 1, 2014 before Herold J., at which matters could not be resolved without a decision of a judge.

42Immediately after the case conference, Elena suggested counselling at ROCK, and raised issues about the cancellation of the services the previous year. It is not entirely clear to me what happened in 2013, and I am making no findings in that regard. I will return to that issue below.

43In any event, on the same day, Daniel consented to counselling with ROCK, and had his lawyer set out available dates. A meeting was confirmed for May 21^st, 2014 by Elena. Based on the materials that I have a meeting took place, but without the children. Both parents apparently signed consents at this meeting.

44Daniel followed up with ROCK in June of 2014 to ensure that they had an appointment date for actual counselling, and was told that the family was on a waiting list. Elena’s response to this was to again raise the issues of the closing of counseling services at ROCK in 2013, and put blame on Daniel for the fact that these counselling services ended in 2013. This was a constant theme throughout Elena’s e-mails over the past year and a half.

45As I noted above, I do not have sufficient information to determine who caused the cancellation of the counselling services in 2013. Two points should be made, however. First, the evidence I do have suggests that, if blame is to accrue for this issue, it rests with Elena and not Daniel as it was her who cancelled the sessions because she had a belief that Daniel had met with staff without her presence. Second, Elena’s constant references to this issue are exactly the sort of conduct that Herold J. described in his May 1, 2014 endorsement as “scoring points, and being right” instead of looking at the best interests of the children.

46In any event, Daniel’s efforts to book counselling continued, and resulted in a call from a counsellor at ROCK in November of 2014 to both parents. Sessions were to begin in December of 2014. However, Elena did not respond to this telephone call from ROCK as she denies receiving it. She does state that she will have to have a personal meeting with people at ROCK to resolve the 2013 issues before she allows counselling to proceed any further.

47ROCK sent a further letter on December 16^th, 2014 advising that they had not heard back from both parents and that if consent was not received by January 8^th, 2015, the boys’ file would be closed. Daniel immediately forwarded his consent, and asked Elena to do the same.

48However, Elena continued to take the position that she could not consent to counselling until she understood what had happened in 2013, and she continued to blame Daniel for the cancellation of counseling, and for meeting with staff at ROCK without her presence. She advanced these allegations throughout the last part of 2014 and into the first part of 2015. Her position was that she required ROCK to address her concerns before she would file the consent for counselling and that Daniel’s failure to explain his conduct in 2013 was the reason. Indeed, in one e-mail Elena states to Daniel that “you are the hold up here” and that “it was not my misunderstanding it was ROCK mistake which has cost the boys and I tremendously.”

49Part of Elena’s reluctance to participate in counselling is outlined in a lengthy e-mail that she wrote to Mr. Black in April of 2014. At that time, Elena stated that “I don’t believe that throwing the children into counselling sessions will help”. This is an important statement when considered against the backdrop of the events of the last two years. It leads almost inescapably to the conclusion that Elena is deliberately delaying counselling. It also raises questions about the genuineness of Elena’s suggestion that counselling take place in May of 2014, and the genuineness of the other issues that she raised about why counselling could not proceed promptly.

50As I indicated at the hearing of the motion, it was my expectation that the parties would forthwith attend at counselling. On the materials I have received, I view counselling as being in the best interests of the children. Based on the post-hearing materials that I received, they have not yet done so, which is of concern to me. Daniel alleges that Elena had the counselling cancelled. Elena alleges that the delays were a misunderstanding, and that counselling is proceeding. I have no indication that it has actually started.

51To be clear, I am retaining jurisdiction over this case for a minimum three month period after this decision is released. The parties are to forthwith advise me as to when counselling begins (or began) by way of written correspondence. Further issues will be addressed through the orders I have set out below.

52I want to make one final comment about counselling for these parties. Although I did not hear any oral evidence, there is evidence before me that suggests that both parents are talking to the children in detail about the Court case, and there is evidence that both parents deny having these conversations. Neither counsel raised it as an issue, but I am going to deal with it briefly. These conversations, if they are taking place, must stop, as it is not healthy for the children to be put in the middle of their parents’ fight. It causes children to feel that they have to choose sides, and it can have significant long term negative consequences for everyone.

(c) The McMaster Appointment

53In the end, I am not completely sure what the issue between the parties was on the McMaster appointment. In addition, I would note that the clarity that Daniel sought from Dr. Strachan did not make things any clearer, except to illustrate the communications problems between the parties and with Dr. Strachan’s office.

54Daniel alleges that Elena would obtain letters from Dr. Strachan in order to undermine his position. He points to the last letter (the July 14^th, 2014 letter), as described above, as an example of this. Elena alleges that this is not correct, and that she has been acting in good faith.

55In his letter of July 14^th, 2014, Dr. Strachan states that he originally referred Isaiah to Sick Children’s Hospital. An e-mail from Elena around the time of the referral (late 2012 or early 2013) confirms that she thought it was a referral to Sick Children’s Hospital.

56Daniel argues that the referral was never made to Sick Children’s Hospital and that Elena always knew it was supposed to be a referral to McMaster. Dr. Strachan, however, also states in his April 2, 2015 letter that the referral was originally made to Sick Children’s Hospital. To accept Daniel’s version of these events, I would have to reject both Elena’s contemporaneous e-mail and Dr. Strachan’s reports, which I am not prepared to do.

57Dr. Strachan’s letters both conclude with the observation that, when he received the referral from McMaster in April of 2013, Isaiah was doing much better and that neither parent thought the referral was necessary.

58As a result, I do not view this as an issue that would support a motion to change the custody arrangements.

59My conclusion on this point is fortified by the fact that neither party was able to clearly articulate a harm that had befallen the children as a result of the confusion over this appointment. Indeed, Dr. Strachan’s report suggests that there was no harm. The whole incident is, however, further evidence of the difficulties that these parties have in communicating with each other.

Legal Tests and Their Application

60This was a divorce, and a final custody and access order was given pursuant to the Divorce Act. As a result, the test for determining whether the final order should be varied arises under the Divorce Act- see French v. MacKenzie (2003), 2003 CanLII 2023 (ON SC), 38 R.F.L. (5^th) 81 at para. 6.

61Section 17 of the Divorce Act sets out the test that must be applied in this case, as follows:

17. (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

A support order or any provision thereof on application by either or both former spouses; or

A custody order or any provision thereof on application by either or both former spouses or by any other person.

(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

62That test has been elaborated on in Gordon v. Goertz (1996), 1996 CanLII 191 (SCC), 134 D.L.R. (4^th) 321, at para. 13, where the Supreme Court stated:

It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

63In assessing whether there has been a material change in circumstances, the party seeking the change (in this case Daniel) bears the burden of proof. Once that burden has been satisfied then the judge hearing the case must consider the case afresh. As noted at para. 47 of Gordon v. Goertz:

47 …The parent seeking the change bears the initial burden of demonstrating a material change of circumstances. Once that burden has been discharged, the judge must embark on a fresh inquiry in light of the change and all other relevant factors to determine the best interests of the child. There is neither need nor place to being this inquiry with a general rule that one of the parties will be unsuccessful if he or she fails to satisfy a specified burden of proof.

64In this case, the analysis starts with whether there has been a material change in circumstances considering the three questions set out in Gordon v. Goertz. I will address each of the three questions below

A Change in Condition

65One of the cases that Mr. Black cited to me was Roy v. Roy (2006), R.F. L. (6^th) 44 at para. 4, which stands for the proposition that:

4. The Supreme Court of Canada and this court have consistently held that joint or parallel custody should only be ordered where the parents can co-operate and communicate effectively: see, for example, Young v. Young, [1993] 4 S.C.R. at para. 44; Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 at 4 (C.A.).

66I agree with the observation that joint custody is reserved for parents who can work effectively together. In a case of first instance, I would have had little hesitation in determining that only one of these parents should have custody. On the facts I have, however, I cannot determine which parent would have been awarded sole custody. They both have strengths and weaknesses, as outlined above.

67However, this is not a case of first instance. The parties have a consent Order for joint custody. The question that I am left with is whether circumstances have changed since that Order was agreed to. Gordon v. Goertz, supra is quite clear about the test that has to be applied to this case and it leads to a different result than I would have reached in the first instance on the facts before me.

68The fact that this is a high conflict case was known to the parties when they agreed to Coats J. original consent Order. That Order was issued with both parties knowing that this was a high conflict case. As a result, the fact that it remains a high conflict case does not mean that there has been a change in the condition, needs or means of the children or the parents’ ability to meet those needs.

69The question is whether the conflict is of a different character than what existed before. I do not believe it is. Indeed, I would suggest that (as submitted by Ms. Stoner) the conflict is, remarkably, probably less than it had been before the parties entered into their joint agreement.

70I reach that conclusion for the following reasons:

a. I have had the advantage of reading the report of Mr. Mignorance, the original parenting coordinator. This report was prepared prior to the Consent order. In that report, he outlines allegations of assault, concerns about jealousy and an alleged inability of Daniel to understand that Isaiah’s ADHD is affecting him, among other issues. While it deals with events prior to the final consent Order, it is instructive as to what a “change” means in this case.

b. Dr. Strachan describes the relationship between the parties as “toxic”, a label that they have now come to realize is probably true. It does not appear to have changed much since that time except that the awareness of the issues has moderated the tone of the emails between the parties.

c. The professionals involved in this case agree that it is difficult for the parties to be in the same room together, and that this was the case prior to the final Order.

71I would also note two additional points that support my conclusion on this issue. First, part of the reason that this is a high conflict case is that these two parents bring a very different approach, and very different strengths (and weaknesses) to the raising of their children. Second, both parents recognized that there were benefits in having the involvement of the other parent in raising their children. I agree with them on that point. It is, in the end, a key reason for my decision.

72However, as discussed above, it is clear that much of the ongoing problems in this case have been caused by a combination of communications issues and Elena’s misunderstanding about what the terms of the dispute resolution mechanism are. I should address both of those issues in order to assist the parties moving forward.

73It is largely Elena’s misunderstanding about the terms of the dispute resolution mechanism and her approach to the financial aspects of the agreement that makes this case a close call, although I am also concerned with her approach to counselling.

74It is not normally the role of a judge to comment on what could have been or could be. However, it should be noted by the parties that a failure to adhere to the terms of the dispute resolution mechanism (and the interpretations I have set out above), and/or a failure to ensure that Isaiah receives prompt counselling would in my view likely lead to the conclusion that there was a material change in circumstances. It will, of course, be up to the judge hearing any such motion to make that determination, and I provide my comments only so that the parties, can ensure that they properly address these issues going forward.

A Material Effect

75I need only briefly deal with this portion of the Gordon v. Goertz test. I am of the view that both issues (the counselling and the dispute resolution mechanism) are significant. However, the issue of counselling is very significant and would likely have a material effect on the parties if counselling is not provided promptly. Counselling will give the parties an opportunity to consider what other assistance the children, and particularly Isaiah, may need.

76On that point, as noted above, the parties have obligations to report back to me to ensure that the counselling is being completed.

Not Foreseen?

77On this point, I start with the view that the conflict between the parents was something that they (and Coats J.) were aware of when the Consent Order was issued. It is very clear that some conflict was foreseen by everyone in this case, as can be seen from the observations I made above. Indeed, in argument, Daniel’s counsel stated that the only reason for accepting the joint custody Order was because there was an effective dispute resolution mechanism.

78The problem that exists currently is that the dispute resolution mechanism is not being used effectively by the parties, in large part because of problems in its interpretation. Now that the interpretation of the agreement has been clarified, I do not foresee any issues at all. If there are issues in its interpretation, then that might be grounds to grant a subsequent motion.

79The other issue that was arguably not foreseen was the need for Isaiah to go to counselling and the problems that would arise between the parties about that issue. Given that the parties have known that Isaiah has ADHD, and that he is gifted, counselling is something that would reasonably have been foreseen by the parties as a possibility. In addition, given the history of this case, it is almost inevitable (and not merely possible) that there would be some conflict over the counselling.

80This test is not met in determining whether there has been a material change of circumstance in this case. However, as I noted above, a failure to provide counselling or a failure to adhere to the interpretation of the dispute resolution mechanism would likely trigger this branch of the test as well.

Conclusions

81In light of the foregoing, I make the following Orders:

a. Daniel’s motion is dismissed subject to the other relief granted herein.

b. The parties are to adhere strictly to their agreement, including the interpretation assistance I have set out in this decision.

c. In the event that Elena seeks to resile from the payment provisions of the mediation/arbitration agreement, then Daniel can bring a further motion to change to seek sole custody without the need for a case management conference.

d. Any issue relating to the interpretation of the mediation agreement I set out above, is to be discussed by counsel within fifteen (15) days of the date of this decision and, if they are unable to agree, then they will make an appointment through the Trial coordinator to address that interpretation issue. I expressly reserve jurisdiction to address that issue.

e. I also retain jurisdiction over this case to determine whether the parties are attending counselling. To that end, the parties are to jointly write to me within seven (7) days of the release of these reasons to advise me as to whether counselling has been undertaken and, if so, what stage it is at.

f. Once I receive the communication described in paragraph e), I will then determine what additional steps should be taken, and I expressly reserve jurisdiction to provide the parties further direction on the issue of counselling.

g. I will resolve the issue of costs with respect to the Motion to Change as described below. However, I expressly retain jurisdiction to address any costs issues that may arise as a result of any additional submissions that need to be made to me.

82While Daniel has not been successful in obtaining the change he sought, he has obtained some relief in this motion. I also had significant concerns with the manner in which Elena has conducted herself in dealing with all of these issues. These reasons should be viewed as a last chance for the parties to have joint custody of the children.

83As a result, I will receive costs submissions from Daniel first, within fourteen (14) days of the date of the release of these reasons. Elena will then have fourteen (14) days to file her responding costs submissions. All costs submissions are to be no more than three (3) double spaced pages, exclusive of bills of cost and any case law filed.

84There will be no reply submissions on costs without leave of the Court.

85Finally, I would be remiss if I did not thank counsel for their assistance in this difficult matter.

LeMay J.