ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: WALKERTON - 73/14
DATE: 20151016
BETWEEN:
D.M.R.
Self-represented
Applicant
- and -
D.R.
Self-represented
Respondent
HEARD: October 1 & 16, 2015
REASONS FOR DECISION ON MOTION TO CHANGE
I. Introduction
Conlan J.
[1] In April 2013, I presided over a family law trial involving the mother, D.M.R., the father, D.R., and their children.
[2] I was not required to decide issues about custody and access pertaining to the parties’ son, C.R. Those matters were resolved on consent by way of Minutes of Settlement which were then incorporated in to a Final Order made on April 8, 2013.
[3] The parties had agreed to share joint custody of C.R., born in […] 2002 (now 13 years old). The boy’s primary residence was agreed to be with his mother. On consent, C.R. was to enjoy access with his father on alternate weekends and each Tuesday overnight, along with specified access for holidays and other special occasions.
[4] In July 2014, the father brought a Motion to Change my Final Order made after the trial in April 2013, specifically regarding child support payable by D.R. That Motion to Change has been resolved on consent.
[5] In June 2015, the father brought a Motion to Change my Final Order made on consent, dated April 8, 2013. D.R. wants to change that Order to provide that the child, C.R., live with him “50 percent of the time”.
[6] The mother opposes that request.
[7] Justices presiding at previous Court appearances ordered that the father’s Motion to Change regarding C.R. be heard as a long Motion (not a trial) in Walkerton on October 1, 2015.
[8] The matter was indeed heard by me in Walkerton on that date. No evidence was called. The matter proceeded on the basis of the filed materials on both sides. Both parties were self-represented. Submissions lasted about one hour in total.
[9] At the conclusion of the submissions by the parties, at my suggestion, we discussed the possibility of me interviewing the child, C.R. I was concerned that each party was providing a very different picture of what the child wants. In the absence of any evidence from the child and without legal representation for the child, I was concerned that I did not have enough information to properly adjudicate the matter. Without hesitation, both parties readily consented to me interviewing the child.
[10] My interview of C.R. took place at the Owen Sound Courthouse on October 16, 2015. It occurred in private in a child-friendly room. Only myself and C.R. were present in the room. A Court reporter was present in the adjacent Courtroom. The interview was recorded. A transcript was ordered by me. I ordered that the transcript be sealed and not unsealed without a further Order made by a Court of competent jurisdiction.
[11] That procedure was all explained by me to the parties at Court on October 1, 2015. The parties understood and happily consented to that procedure.
II. The Positions of the Parties
[12] The father’s position is that the child wants to live with him at least half of the time.
[13] The mother’s position is that the child is perfectly content with the status quo.
III. Analysis
[14] I have considered all of the evidence submitted on both sides. I have considered the submissions made by the parties at Court in Walkerton on October 1, 2015. I have considered what was said by the child during my interview of him in Owen Sound on October 16.
[15] To be frank, after the Court attendance in Walkerton on October 1, 2015, I was thinking that I would likely dismiss the father’s Motion to Change.
[16] First, he does not come to Court with clean hands. He has failed to pay the $13,000.00 in costs that were ordered against him after the trial in April 2013 (the costs Order having been made on June 7, 2013). D.R. filed a consumer proposal in bankruptcy in December 2013. Ultimately, the mother received about $1700.00 towards the costs award.
[17] Second, he has not complied with the Order of Bloom J. made on August 19, 2015. Instead of filing a short statement and affidavit setting out his position and the evidence in support of it, the father filed, improperly, a pile of documents dating back to well before the Final Order was made in April 2013 and some case law attached as an Exhibit to his Affidavit.
[18] Third, on the written materials alone, nothing has changed since April 2013. In fact, the father took this same position before the consent Final Order was made regarding C.R. Ms. Bilyea, a clinical investigator with the Office of the Children’s Lawyer, provided an Affidavit sworn in October 2012 which indicated that D.R. was adamant then that the boy wanted to live half of the time with his father.
[19] Fourth, as of October 1, 2015, I had totally conflicting evidence before me. There is a bald assertion by the father that C.R. has indicated a desire to live with him half of the time. The mother has deposed that C.R. has said things completely inconsistent with that.
[20] This is not a request by the father for expanded access. This is a request to alter the entire living situation and routine for C.R., a boy with special needs and who is about to transition from elementary to high school. There is nothing in the written materials alone to suggest that a disruption to the status quo and the consistent structure in place for C.R. would be beneficial for him, and that is the Court’s primary concern.
[21] It is not in the best interests of the child to disclose to the parties the details of what transpired during my interview with the young man. He spoke comfortably with me. He did not appear to be intimidated or confused. He was clear and precise and unwavering.
[22] The said interview was helpful to me in writing these Reasons.
[23] My opinion has changed since after the Court attendance in Walkerton on October 1. The father cannot be excused for failing to pay the prior costs award, however, that failure cannot be taken out on the child. The father’s failure to strictly comply with the Order of Bloom J. and the deficiencies in his written materials on the Motion to Change are likely the result of him being self-represented rather than something intentional. My discussion with C.R. has persuaded me that there has been a material change in circumstances. Finally, that discussion has helped resolve the conflicting evidence that was before me on October 1.
[24] I am inclined to grant the father’s Motion to Change, but not at this time. The status quo shall remain until the end of 2015. In early January 2016, I shall meet with the child again. C.R. has consented to that. We will have another discussion at that time. I will then make a final decision on the father’s Motion to Change, unless of course the parties consent to an Order in the interim.
[25] I have a warning to the parties for the time period between now and when I next meet with C.R. The parties shall not pressure the child to talk about his discussion with me. He expects that to remain private. The parties should not harbour ill feelings towards C.R. or each other. The boy is caught in the middle of a very difficult situation. He deserves to have two parents who love him and who get along for his sake.
[26] I encourage the parties to talk openly with each other about the future and to think about whether the father’s Motion to Change should be resolved on consent.
[27] If either party wants independent counsel appointed for C.R., s/he shall notify the Court of that request, in writing, forthwith, and copy that request to the other party.
[28] If either party wants to file additional evidence on the father’s Motion to Change, that request shall be made in writing, forthwith, and copied to the other party.
[29] I order that a transcript be prepared of my interview with C.R. That transcript shall be sealed and not unsealed and not accessed by anyone without a further Court Order. No recording of my interview with C.R., or a copy thereof, shall be released to anyone without a Court Order.
[30] I instruct the trial coordinator to contact the parties to schedule a further interview with C.R. to take place at 9:00 a.m. on a morning in January 2016 at the Walkerton Courthouse. The young man has consented to that.
[31] A final decision on the father’s Motion to Change shall be held in abeyance until after that further interview with the child.
[32] Neither party shall share these Reasons with the young man.
IV. Conclusion
[33] For all of these reasons, D.R.’s Motion to Change issued on June 23, 2015 is adjourned, sine die, including any issue about costs.
[34] A Temporary Order shall issue in accordance with these Reasons.
Conlan J.
Released: October 16, 2015
COURT FILE NO.: WALKERTON 73/14
DATE: 20151016
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
D.M.R.
Applicant
- and -
D.R.
Respondent
REASONS FOR DECISION ON
MOTION TO CHANGE
Conlan J.
Released: October 16, 2015