Court File and Parties

CITATION: Case v. Case, 2015 ONSC 3910

COURT FILE NO.: FS-05307909-0001

DATE: 2015-06-22

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Penelope Mara Case, Applicant

AND: Craig Andrew Case, Respondent

BEFORE: C. Horkins J.

COUNSEL: Penelope Mara Case, acting in person Glen Schwartz, for the Respondent

HEARD at Toronto: June 11, 2015

ENDORSEMENT

Introduction

[1] The applicant mother brings a motion to change the final order of Justice Paisley dated April 2, 2014 ("the final order"). Her notice of motion states that she wants an order for "full direct children access, residential information" and an order "to ensure children's counselling [is] completed". The applicant expanded the scope of change that she is requesting in her affidavits.

The final order

[2] The final order was issued on consent after more than 9 years of litigation between the parties. The relevant sections of this order state as follows:

Custody

1. Sole Custody of the remaining minor Children [Heather age 17 and Erin age 14 is] granted to the Respondent Father, finalizing the temporary Order of December 13, 2005.

2. All decisions as an incident of Custody, including but not limited to education, health and such, shall remain solely within the domain of the Respondent Father in the children's best interests.

3. Applicant mother to have access to information about the Children as set out in the Children's Law Reform Act, Health Care Consent Act and Education Act, subject to the written consent of the children as required for access to their medical information.

4. The Respondent Father will continue to encourage the two Children to have contact with the Applicant Mother.

5. Applicant Mother's consent shall not be required for the Respondent Father to travel with the Children.

6. Respondent Father may obtain passports (and passport renewals), health cards social insurance cards, birth certificates and any other government identification documents for the Children without the consent of the Applicant Mother.

Access

7. Parties shall return to participation with Families in Transition (FIT) Reconnection Program and abide by the FITs terms of service and guidelines, both written and verbal.

8. Access schedule of the Children with the Applicant and all contact between the Applicant and the Children to be determined upon completion of the FIT Reconnection Program.

Communications

9. Communications between the parents shall be addressed as part of the parties' participation with FIT Reconnection Program.

The legal framework

[3] Section 29 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 states as follows:

A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

[4] The test for a variation is set out in the Supreme Court of Canada decision of Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, [1996] S.C.J. No. 52. The decision dealt with a mobility case and a variation under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.); however, the test has been held to be applicable to a variation under the Children's Law Reform Act.

[5] As outlined in Gordon v. Goertz at paragraph 10, before the court can consider the merits of an application for variation, it must be satisfied that there has been a material change in circumstances of the child since the last order was made. The Court further stated at paragraphs 12 and 13:

12 What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), 1991 839 (BC SC), 35 R.F.L. (3d) 169 (B.C.S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.). Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. "What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place": J. G. McLeod, Child Custody Law and Practice (1992), at p. 11-5.

13 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.

[6] Jurisdiction to vary a custody and access order is dependent upon an explicit finding of a material change in circumstances since the previous order was made. If an applicant fails to meet this threshold requirement, the inquiry can go no further. See Persaud v. Garcia-Persaud, [2009] O.J. No. 5940, 2009 ONCA 782; and Litman v. Sherman (2008), 2008 ONCA 485, 52 R.F.L. (6th) 239 (Ont. C.A.).

[7] If the threshold requirement of a material change in circumstances is met, the judge must then enter into a consideration of the merits and make the order that best reflects the interests of the child (see Gordon v. Goertz, para. 9). The judge on the variation application must consider the findings of fact made by the trial judge as well as the evidence of changed circumstances (see Gordon v. Goertz, para. 17).

Analysis

The Applicant's Position

[8] The applicant states that three material changes have occurred since the final order. She describes them as follows:

(1) Counselling for the children has not been provided because FIT terminated their involvement with the family in July 2014.

(2) Heather has not been attending school.

(3) The respondent and children have moved twice since the order.

[9] As a result of these changes, the applicant seeks many changes to the final order. In the notice of motion, the applicant seeks full direct access to the children and their information plus an order for counselling. She expanded her requested relief in her affidavits. In her affidavit dated August 27, 2014 at para. 12, the applicant states that the final order should be varied so the following relief can be provided:

a. ensure the children receive Cognitive Behavioural Therapy

b. ensure the children have full direct access with their sister Jennifer and their Mom without interference by Respondent Father.

c. to provide oversight and update Court at 30-day intervals

d. Respondent Father to pay for all associated costs of children's therapy.

e. impose accountability for any and all Order violations and sanctions for further violation of Orders

[10] In the applicant's affidavit dated June 3, 2015 at para. 25, she requests two further changes to the final order as follows:

[t]he Respondent must provide 2 pieces of government identification to prove of any and all current addresses for me to send my Annual Tax Returns directly to him

That the Court reserves the right to hold the Respondent accountable for the best interest of the children pursuant to the Children's Law Reform Act.

[11] For the reasons that follow, I find that the changes the applicant relies upon are not material changes as defined in Gordon v. Goertz.

Withdrawal of FIT

[12] The applicant says that because FIT has withdrawn their involvement the final order should be varied to require the children to attend "Cognitive Behavioural Therapy".

[13] Some background evidence is necessary to appreciate why FIT's withdrawal is not a material change.

[14] During this lengthy litigation, numerous court orders have been issued and on many occasions, the applicant has not complied with the orders. The details are set out in the respondent's affidavits.

[15] There has been considerable conflict in the family. Of note, the applicant mother falsely accused the father of sexually abusing the youngest child. The applicant mother also attempted on two occasions to admit the youngest child to a psychiatric ward during her access. A doctor at CAMH later confirmed that the child had no mental health issues.

[16] The Office of the Children's Lawyer ("OCL") conducted an investigation and issued a report in August 2006. The OCL report recommended that the respondent father have sole custody of the children. The OCL provided legal representation for the children after June 2010.

[17] The applicant mother has not had regular access since April 2010. In April 2010, Justice Paisley ordered that the applicant mother's access be supervised.

[18] The respondent father took the children to the access center, but they refused to visit their mother. After 10 failed visits, the access center cancelled future visits. The OCL was aware of this development. Following termination of the access visits, the OCL recommended that the family be referred to FIT.

[19] A settlement conference was held on August 8, 2011. The applicant did not attend. The respondent agreed to proceed with counseling at FIT. The OCL believed that a referral to FIT was the best course of action. On many occasions, they made it clear that they did not recommend individual counselling for the children.

[20] The family was placed on a waiting list for counselling at FIT. In the meantime, the respondent attended intake meetings at FIT during 2013. The court has no evidence regarding the applicant's cooperation with FIT.

[21] The OCL closed their file on May 30, 2013. It was their position that they could no longer help the family.

[22] The respondent attended at FIT and it appears that they were not reached on the waiting list until around the time of the final order.

[23] The parties signed FIT's Acknowledgment Consent and Waiver ("the Waiver"). In particular, this form states that all communications, observations and opinions that are generated during the services shall remain confidential. Further, no one at FIT can be required to provide documents, written or oral testimony at any trial, hearing or application in any court.

[24] Para. 7 of the final order requires the parties "to return to participation" with FIT and "abide by the FIT's terms of service". Para. 8 of the final order states that the children's access schedule and all contact between the children and the applicant is to be determined upon completion of the FIT Reconnection Program.

[25] The respondent took steps to return to participation with FIT as required in para. 7 of the final order.

[26] On April 3, 2014, the respondent contacted FIT to provide them with the final order and arrange for resumption of their services. He attended 13 appointments between April 17 and July 24, 2014. On July 24, he was informed that FITs involvement with the family was cancelled.

[27] The applicant states that she attended "FIT appointments", but offers no specifics. She says that the respondent did not comply. However, it is clear from the respondent's evidence that he did return to participation at FIT.

[28] On July 24, 2014, the parents were advised that FIT would not provide any service to the family. The court has no evidence from FIT that explains why they cancelled the counseling. The Waiver prevents an explanation being provided.

[29] The respondent sent emails to FIT and demanded that the FIT counsellor provide an explanation in writing. The counsellor reminded the respondent that FIT was not able to do so because of the terms of the Waiver.

[30] The respondent believes that the applicant's conduct is to blame for the cancellation. He points to her conduct that does not respect the Waiver; specifically the applicant's emails to the FIT counsellor insisting on a written explanation for the cancellation. As well, the respondent points out that the applicant has contacted the children in violation of the final order. The final order does not give her access to the children. They do not want to speak or visit with her. The respondent suggests that this behaviour is also contrary to the expectations of FIT.

[31] Given the high conflict of this family, there was no certainty that the FIT counselling would reunite the applicant and the two children. FIT was viewed as a last resort. The behavioural therapy that the applicant had been requesting was not supported by the OCL and it was not proposed as an alternative to FIT in the final order.

[32] It is apparent from the applicant's affidavits that she does not want to abide by the final order. Her affidavits are filled with criticism of the respondent's ability to parent and her ongoing belief that the children require individual behavioural therapy. Para. 8 of the final order states that "all contact" between the applicant and the children is to be determined after the completion of the FIT program. The applicant has ignored this final order and has tried to initiate contact with the children through many avenues.

[33] The children are now 17 and almost 15. They have not changed their views and preferences. The respondent father has had sole custody of the children for several years. This court has no reason to be concerned about his ability to parent the children.

[34] While it is unfortunate that FIT has cancelled their service, this was not unforeseen in this high conflict family. It does not materially affect the children because their needs are being met by their father and they have made it clear for many years that they do not wish to have contact with their mother.

Heather's Absence From School

[35] Heather has been absent for part of this school year. This is due to a medical condition that was known and predates the final order. The school was provided with a medical note in March 2015 and the school board has exempted Heather for the remainder of the academic year for health reasons. Heather is under medical care and is concentrating on recovery so that she can return to school in September.

[36] This is not a material change. The medical condition existed before the final order. Her absence from school was not unforeseen. This is not a change in the child's condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child. The respondent is handling Heather's needs in a responsible manner.

The Respondent and Children Have Moved

[37] The respondent has made two moves since the final order. A change in residence is not a material change. There is no evidence that the moves have materially affected the children. Further, a change in residence is a change that was within the parties' reasonable contemplation when the final order was signed.

[38] During this part of the applicant's argument, she expressed uncertainty about the respondent's address and how she should deliver the annual financial disclosure that she must send the respondent every year. The respondent confirmed that such disclosure should be mailed to 17 Jeffrey Street, Barrie, Ontario L4M 5H5.

Motion Dismissed

[39] In summary, a material change has not occurred since the final order. As a result, the applicant's motion to change the final order is dismissed.

Costs

[40] The respondent seeks costs of this motion fixed at $2,350.40 inclusive of fees disbursements and HST.

[41] Rule 24 of Family Law Rules, O. Reg. 114/99 deals with costs. Rule 24(1) states that the successful party is presumed entitled to costs.

[42] Rule 24(11) states that in setting the amount of costs the court shall consider the following factors:

(11) A person setting the amount of costs shall consider;

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party's behaviour in the case;

(c) the lawyer's rates;

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

(e) expenses properly paid or payable; and

(f) any other relevant matter.

[43] Counsel provided a Bill of Costs. The time spent responding to the motion to change was reasonable. Counsel spent 7.2 hours. Two affidavits were filed as well as a factum. One hour was spent by a law clerk. The hourly rates are reasonable: $275 for counsel and $100 for the law clerk. All of this work was necessary. The parties had just agreed to a final order and it was important to the respondent to ensure that the finality of this order was respected.

[44] The respondent is entitled to costs. The applicant has not proven that a material change in circumstances has occurred. I order the applicant to pay the respondent his costs that I fix at $2,000 all inclusive. This is fair and reasonable (see Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291, at para. 24 and Serra v. Serra, 2009 ONCA 395 at para. 12).

C. Horkins J.

Date: June 22, 2015