Court File and Parties

COURT FILE NO.: FS-08-340601-0001 DATE: 20160609 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

L.L. Applicant – and – M.C. Respondent

Counsel: L.L. in person M.C. in person

HEARD: June 6 and 7, 2016

GLUSTEIN J.:

Nature of motions and overview

[1] The applicant mother, L.L. and the respondent father, M.C. [^1] bring separate motions to vary the final orders of Czutrin J. dated July 19, 2012 (the “First Czutrin Order”) and March 28, 2013 (the “Second Czutrin Order”) (collectively, the “Czutrin Orders”).

[2] Czutrin J. heard evidence from these parties at a lengthy trial. He set out a thorough and detailed regime to govern the parenting relationship. He refused to order joint custody or “divided decision making” in favour of the father, MC, on the basis that the parties were “high conflict” and he had no confidence that the parties would be able to put aside their differences to act in the best interests of their son, J, who was then five years old.

[3] Czutrin J. also refused to grant equal access to MC, as he found that an alternate weekend arrangement with overnight access on alternate weeks was in J’s best interests.

[4] J is now nine years old. MC seeks to change the Czutrin Orders to provide for equal access with J. LL seeks to change the Czutrin Orders (i) to exclude MC from being able to consult with J’s teachers and professionals about his well-being, (ii) payment of section 7 expenses, (iii) specificity on (a) Christmas and summer holiday schedules and (b) locations for exchanges, (iv) recalculation of MC’s income for purposes of child support, and (v) dispensing with consent of MC to permit LL to travel with J.

[5] Both parties submit that there have been material changes since the Czutrin Orders which would permit the changes they seek. For the reasons that follow, I do not agree.

[6] Neither party meets the threshold of material change under the settled law. In particular, I am not satisfied, on the evidence, that either J’s needs or the ability of his parents to meet them has changed in a fundamental way, nor that the issues arising from J’s current needs were either not foreseen or could not have been reasonably contemplated by Czutrin J. when he made the orders.

[7] Further, even if the evidence supported a finding of material change, there is no evidence that the proposed changes to the Czutrin Orders (equal access sought by MC and no involvement in J’s health or education decisions or no consent of MC for travel as sought by LL) would be in J’s best interests.

[8] I review below (i) the applicable law, (ii) the Czutrin Orders, and (iii) the factors each party relies upon (and the evidence in relation to those factors) in support of their position that there has been a material change.

The applicable law

[9] I adopt the law related to material change of a final order as set out by Stevenson J. in Brown v. Lloyd, 2014 ONSC 310 (“Brown”) (affirmed 2015 ONCA 46), at paras. 13-17:

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.

Both parties agree that the test for a variation is set out in the Supreme Court of Canada decision of Gordon v. Goertz, 1996 SCC 191, [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; however, the test has been held to be applicable to a variation under the Children's Law Reform Act.

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:

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 BCSC 839, 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.

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.

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.)).

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 (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 (Gordon v. Goertz, para. 17).

[10] In his first reasons dated July 19, 2012, Czutrin J. also relied on the settled law in Kaplanis v. Kaplanis, 2005 ONCA 1625 (“Kaplanis”) that joint custody is not to be ordered if the court is satisfied on the evidence that the parents cannot communicate effectively with each other once the litigation is over. In Kaplanis, the court held (Kaplanis, at paras. 11-12):

The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.

Insofar as the ability of the parties to set aside their personal differences and to work together in the best interests of the child is concerned, any interim custody order and how that order has worked is a relevant consideration for the trial judge and any reviewing court.

[11] I now review the Czutrin Orders, which considered the parenting and financial issues.

The Czutrin Orders and Czutrin J.’s reasons for judgment

[12] As I discuss above, Czutrin J. made two orders in this matter. The First Czutrin Order addressed parenting issues, including custody, access, and parental involvement in major decisions affecting J’s health and education. The First Czutrin Order was derived from Justice Czutrin’s thorough and lengthy reasons for judgment dated July 19, 2012.

[13] The Second Czutrin Order addressed issues arising from a second hearing on February 28, 2013, with reasons released on March 28, 2013, in which Czutrin J. addressed the calculation of access time, child support, and section 7 expenses.

[14] The First Czutrin Order had the following provisions which are relevant to these motions:

(i) LL had custody and primary residence of J (para. 1);

(ii) MC had access on “alternate weekends from Fridays at 5:30 pm until Tuesdays in the morning to either school, daycare, or mother’s home depending on where [J] was scheduled to be”; and “following the father’s non-weekend, the father is to have J after school on Monday or 3:00 pm if it is a Monday holiday, until the Tuesday morning return to school, daycare or the mother’s home as above” (paras. 3a and 3d);

(iii) LL “is always to have the Easter Weekend including the Monday, as Easter is significant for the mother” (para. 3c);

(iv) March break holidays were to alternate (par. 3e);

(v) The Christmas period was allocated with LL having access “all day Christmas eve starting at 10:00 am (if the previous day is with the father) and concluding at 4:00 pm on Christmas Day”, with the “two-week period to be divided equally” (para. 3f);

(vi) The summer holiday period “begins the last day of school and ends the day before the first day of school”, with each parent having “two exclusive weeks of vacation for the summer” and “the mother’s time will always be the last two weeks leading to the return of school after Labour Day” and “the father’s two weeks shall always be the first two weeks of July commencing on a Friday until the Sunday” (para. 3g);

(vii) “The mother shall consult the father on all major health and educational issues affecting the child, but if the parties are unable to reach an agreement, the mother has the final decision. (See greater details to follow.)” (para. 8);

(viii) “Major decisions regarding J’s medical care and treatment (e.g. surgery, long term medication, major diagnosis, counselling or therapy) shall be made in consultation with J’s current physician(s), dentist(s) and other health-care providers. If the parents are unable to agree on major decisions relating to J’s medical care and treatment, mother’s decision will prevail.” (para. 45);

(ix) “Major decisions affecting J’s educational programming (e.g. psycho-educational assessment or testing, school choice or tutoring) shall be done by the parties in consultation with the child’s teacher. If the parties are unable to agree on major decisions relating to J’s education, the mother [ sic ] decision will prevail” (para. 46);

(x) “Before making any final decision the mother shall inform the father of the intended decision. They shall consult with one another in regards to all major decisions and shall seek the other’s input. It is only after this consultation process that the mother shall be able to make a major decision without first giving the father 30 days prior written notice” (para. 48);

(xi) “Each parent shall be entitled to receive copies of all medical, dental, school and other reports related to J and shall be entitled to consult with J’s teachers, caregivers, physicians, dentists, and other health providers concerning the general well being of J. Each parent shall be listed on all documents pertaining to J. Both parents are to execute consents or authorizations to all persons, including teachers, doctors, dentists and others involved with J to speak fully and openly with both parents” (para. 49);

(xii) Either parent could travel with J outside Canada on 45 days’ notice with a detailed itinerary. LL was to keep J’s Canadian passport and provide it to MC five days prior to departure (paras. 15-16); and

(xiii) “Communication will be strictly by Our Family Wizard unless an emergency dictates communication by telephone” (para. 31).

[15] The Second Czutrin Order had the following financial provisions which are relevant to these motions:

(i) MC was to pay child support for J at $919 per month based on his 2012 income of $105,075 (para. 1);

(ii) “Both parties shall share section seven expenses on a 50/50 basis”, with LL “to provide proof of payment” and MC “to reimburse the mother within 30 days of receipt” (para. 2); and

(iii) “Commencing May 1, 2014 and annually for so long as there is a child support obligation, the parents are to exchange tax returns for the previous year … to calculate child support” (para. 4).

[16] As I discuss above, the First Czutrin Order arose out of a 9 day trial in which MC sought joint custody, as well as equal access. In particular, Czutrin J. heard the trial after he had rejected a draft consent order in August 2010 (based on a June 2010 agreement) which would have provided for joint custody with MC’s access time increasing to 43% from the time he had with J since separation, as well as terminating child support. In rejecting the draft consent order, Czutrin J.’s endorsement read:

Require 35.1 affidavits of each party. Joint custody, high conflict, child support? Not sure I am satisfied without affidavit evidence + detail about incomes + vagueness of why no support?

[17] At trial, Czutrin J. heard all of the evidence related to the issues of custody, equal access, and child support and rejected MC’s position on all of those issues. Czutrin J. relied on the following findings of fact:

(i) He found that an access schedule based on alternate weekends and an alternate week overnight “focuses on the child’s best interests” (para. 87);

(ii) The parties had significant communication problems from the outset of the litigation. On November 3, 2008, Paisley J. ordered no contact or communication between the parties except through counsel or through a communication book (para. 92-31);

(iii) Justice Grace had held in an earlier motion by MC to enforce the June 2010 agreement that “effective communication, cooperation and mutual respect is not present” (para. 92-43);

(iv) “While I am satisfied that they both love J and J loves them, they are markedly different people” (para. 95);

(v) “I found the father very able to articulate the appropriate sentiments and say what one might perceive as the right words and insight. … Nonetheless, I was not satisfied that his words to me or the investigator match the reality of his words and actions” (para. 121);

(vi) “Having had the benefit of the evidence and based on my conclusions on the evidence, these parents are not candidates for any form of joint custody or divided decision making” (para. 131);

(vii) “In light of all of the circumstances and the long history of poor and inappropriate communication and conflict over many parenting issues, I find that it is in the best interests of J that he has a predictable and consistent parenting schedule while allowing for maximum contact and involvement that minimizes the opportunities for conflict” (para. 132); and

(viii) “I have found the mother more credible than the father in areas where their evidence conflicted. I find her decision making sound and motivated by her children’s best interests. Her witnesses were also more credible than the father over points of contention and the father’s confrontational style” (para. 133).

[18] At the second hearing, Czutrin J. noted that “They have returned on a few minor issues relating to the parenting schedule, but the major issue is whether the resulting parenting time has the father reaching the 40 per cent time referred to in s. 9 of the FCSG ” (para. 3).

The factors relied upon by the parties

[19] Both parties submit that there has been a material change under the Brown test and seek to vary the Czutrin Orders. I consider each of their submissions below.

a) The motion by MC

[20] Prior to the hearing, and until closing submissions, MC submitted that there were material changes to support varying numerous aspects of the Czutrin Orders, including an order to have sole decision-making power for medical decisions, new Easter access, changes to the March Break holiday, Christmas schedules, and summer vacation dates, and to effectively eliminate child support due to the proposed equal access.

[21] In his closing submissions, MC restricted his request to vary the Czutrin Orders to seeking an order for equal access, an issue which had been considered and rejected by Czutrin J. as I discuss above.

[22] MC submits that that there are seven factors which support a finding of material change. I address each of these factors below.

Factor 1: J’s struggles in school including tutoring and his diagnosis of mild ADHD

[23] MC submits that there has been a material change since J (who is now in grade 4) has been struggling at school.

[24] The parties do not dispute that J has been struggling at school. The issue is (i) whether such struggles including his diagnosis of mild attention deficit hyperactivity disorder (“ADHD”) (with inattentive presentation) and tutoring constitute a material change and (ii) even if the threshold is met, whether there is any evidence that the change in the Czutrin Orders sought of equal access would be in J’s best interests to address these academic changes.

[25] J’s kindergarten report card set out poor results in language skills, along with similar poor results in Grade 1 that led his school to “transfer” him to grade 2 even though he had not met the expectations of the Ontario curriculum for grade 1.

[26] J continued to have poor (although somewhat improved results) in grades 2 and 3, as LL attempted to address those concerns seriously and promptly, through tutoring, visits with health professionals, and daily instruction in reading and writing skills at the school. J was “promoted” to grade 3 instead of being transferred.

[27] LL also obtained a review of J’s needs through the Toronto District School Board’s Identification and Placement Review Committee, resulting in an individual education plan (“IEP”) which provided for both a special education class and partial integration into the regular stream.

[28] Both parents agree that these processes are assisting J with his scholastic needs. They both speak highly of the school’s efforts to work with J.

[29] As I discuss above, J has also very recently been diagnosed by the Hospital for Sick Children (“HSC”) with mild ADHD with “inattentive presentation”, in a report dated May 17, 2016 (the “HSC Report”). The evidence is undisputed that it was LL who believed that J suffered from ADHD and undertook extensive efforts to seek treatment, while MC denied that condition at all times, until MC received the HSC Report a few weeks ago.

[30] LL had taken J for ADHD treatment before the HSC Report, through another doctor. There is some dispute as to whether MC had proper notification of those visits and medication. However, it is not disputed that as a result of MC’s position that J did not have ADHD and medication was not required, a blind trial was conducted by that doctor in the context of J’s “resource withdrawal” classroom as opposed to the regular classroom setting. As a result of the blind trial, the doctor decided to stop the medication.

[31] The HSC Report recommends that:

“it would be worth trying medication again as the previous trial was at a low dose and evaluated in the resource withdrawal setting rather than the classroom setting. As the goal is for J to reintegrate into a standard sized classroom out of his resource withdrawal program in the next year or so, medication support is likely to be particularly helpful in a classroom setting which is a much more demanding environment for both attention and organization”.

[32] Both parents gave evidence in court that they agreed with the HSC recommendations and would implement them. As I note above, this was the first acknowledgement by MC that J has any form of ADHD.

[33] MC seeks to rely on the above changes to J in the academic sphere, i.e. his academic struggles, ADHD diagnosis, and tutoring, as a basis to support a finding of material change. I do not agree.

[34] In Brown, Stevenson J. found that the child (also 9 years old at the motion to vary and 5 years old at the order) had been diagnosed with a learning disability (Brown, at para. 23). As in the present case, Stevenson J. noted that the child “has an IEP which allows him to leave the class and go to a specialty teacher to obtain assistance” (Brown, at para. 32). As in the present case, the child was being tutored (Brown, at para. 24). On that basis, the father claimed there was a material change and, as in the present case, sought a change to the access schedule for equal access (Brown, at paras. 1, 20).

[35] Stevenson J. stated the settled law that “the onus is on Mr. Lloyd to prove there has been a material change in circumstances” (Brown, at para. 76). Stevenson J. held that “being diagnosed with a learning disability is a change and a challenge”, but that “the evidence does not establish that there is an inability of either parent to meet Dax’s needs as a result of his diagnosis” and “I do not find Dax’s need for tutoring to be a material change in circumstances” (Brown, at paras. 91-93).

[36] Ironically, until three weeks prior to this hearing, MC’s affidavit material criticized LL for seeking medical treatment of J for ADHD, as MC took the position that J did not suffer from the condition, but rather that it was LL who was, in effect, creating a medical problem which did not exist. While LL may have thought that the condition was more serious than eventually diagnosed, I find that it was through her efforts that ADHD was diagnosed.

[37] On the above facts, I am not able to find that J’s struggles in school or his ADHD diagnosis constitutes a material change. A diagnosis of “mild” ADHD with inattentive presentation does not alter J’s needs in a fundamental way.

[38] MC seeks to rely on the recommendations in the HSC Report that “we would encourage mother to seek parent counselling” and “recommend she find more specific assistance” as evidence that HSC was assessing the parenting skills of the two parents, and made a finding that MC was better-equipped to address J’s needs. I do not agree.

[39] There is no evidence that HSC conducted a parenting assessment, and such a practice would be inconsistent with the scope of the HSC Report, which was to assess J, as “J’s parents have requested an assessment to provide clarification of diagnosis and suggestions regarding treatment planning”. The lack of a reference to MC to seek parent counselling or more specific assistance is not a finding that MC is better-equipped. LL is the primary parent dealing with the daily issues concerning J’s condition, and a comment in a report that she might wish to seek parent counselling or find more specific assistance is not a parental evaluation, let alone a finding that MC is better-suited to address J’s health and educational needs.

[40] Even if the above changes could be held to either be a “fundamental” change to J’s needs or to the ability of LL to address those needs (which I do not find for the reasons I discuss above), the evidence does not support a finding that “the previous order might have been different had the circumstances now existing prevailed earlier”.

[41] To the contrary, Czutrin J. held that LL was capable of acting in J’s best interests in relation to health and education matters, and ordered that LL have final decision-making power in this regard, including power related to psycho-educational assessments. LL has fulfilled those expectations placed upon her by Czutrin J. as a caring parent who has acted in J’s best interests.

[42] Further, although not necessary given my findings above that MC has not met his onus to establish a material change, I accept LL’s evidence that J’s difficulties in language skills were raised before Czutrin J., even though no mention of it was made in his reasons. LL’s position is consistent with J’s kindergarten report card, which is contemporaneous with the trial, and states that “J has progressed slowly in reading this term, moving to level C (DRA 3) which is below the expected level for students entering grade one” and “J requires teacher support to communicate his ideas in writing”.

[43] Finally, even if J’s academic struggles, tutoring, and ADHD diagnosis could be seen as a material change, there is no evidence that equal access would alter J’s academic performance in any way. While MC says in his affidavit that he can provide mentoring to J, there is no evidence linking such assistance to better school performance and reduced symptoms of ADHD, and it would be speculative for the court to make such a finding.

[44] For the above reasons, I reject MC’s reliance on this factor as a basis for material change of the Czutrin Orders.

Factor 2: The continued failure of the parties to engage in communications

[45] MC relies on the continued inability of the parties to engage in communications as a material change, in that he submits that the only way he can influence J’s development is through increased access. I do not agree.

[46] The inability of the parties to engage in communications in the future was the very reason why Czutrin J. ordered custody to LL, with sole decision-making power on health and education issues, and with consultation to MC. Further, the appropriate extent of access for MC was expressly considered by Czutrin J. under the rubric of parties who could not get along together and who would not be expected to communicate effectively in the future.

[47] Consequently, it cannot be said that “the order might have been different had the circumstances now existing prevailed earlier”. The lack of communication between the parties has been raised as a known problem ever since 2008 by Justice Paisley, reiterated by Justice Grace and Justice Czutrin, and now again restated by this court. It is not a material change in circumstances.

[48] Consequently, there has been no change at all in the parties’ relationship with each other from the Czutrin Orders. MC acknowledged this fact at the hearing, and his first questions in his cross-examination were designed to elicit that evidence. This factor does not support a finding of material change.

[49] Finally, even if there could be said to be a material change, increased access would not affect communication between the parties.

Factor 3: MC claims that since Czutrin J. held that LL was the more able parent, there is now a material change

[50] MC submits that Justice Czutrin’s order of custody to LL constitutes a finding that LL was the more capable parent. MC relies on Czutrin J.’s comments at paragraphs 130 to 134 of his reasons dated July 19, 2012.

[51] MC submits that had Justice Czutrin relied on LL’s raising of her daughter from a prior marriage and her good relationship with her former spouse as factors to make that decision, and that since J has learning difficulties and is a different type of student than his sister, the previous order might have been different.

[52] First, the basis for MC’s submission that he is the more able parent is based on the submissions summarized at factor 1 above, which I have already rejected (as well as my analysis concerning “lates” and “absences” at school, which I also reject in my analysis below).

[53] Second, LL’s relationship with her daughter and her former husband was only one of a multitude of factors considered by Czutrin J. in his decision to award custody to LL, with alternate weekend and one weeknight access to MC. Czutrin J. considered all of the evidence to determine that the access plan was in J’s best interests. There is no basis from Czutrin J.s reasons to carve out the difference in learning abilities between the daughter and J as in any way determinative of the custody and access orders.

[54] Consequently, even if Czutrin J.’s conclusion can be read as implicitly finding that LL was a more able parent, MC had not met the onus to establish a material change to that finding.

Factor 4: Lates and absences at school

[55] MC relies on the amount of “lates” and “absences” on J’s report cards to submit that there is now evidence that LL cannot meet J’s needs.

[56] However, the absences are explained by medical appointments, while “lates” are explained by difficulty LL has, as the primary parent, to encourage J to attend school.

[57] LL’s evidence, which was uncontested, is that the “lates” often arose because J refused to physically enter the school even when on time, and that LL had to make a reasonable parenting decision as to how to encourage timely attendance. These parenting decisions do not alter, in a fundamental way, LL’s ability to meet J’s needs. Further, those historical issues arose before J’s diagnosis of mild ADHD and HSC’s proposed treatment.

[58] Attributing better parenting skills to school timeliness without evidence supporting such a finding would be speculative, unless there was evidence of an inability or unwillingness of a parent to encourage his or her child to attend school. In the present case, LL has made diligent efforts to have J attend school, and her desire to have J thrive at school is supported by all of the steps LL has undertaken at the school and with psycho-educational specialists to support that goal.

[59] J’s willingness to attend school after a weekend or overnight with MC may be very different from a daily routine of school which LL must address.

[60] On its own, late arrivals or absences for medical reasons do not support a finding that LL cannot meet J’s needs in a fundamental way. While it may be possible in other cases to rely on that information along with other factors to make such a determination, in the present case the other evidence does not support such a finding.

Factor 5: Maximum contact is the guiding principle under the Divorce Act

[61] MC relies on s. 16(10) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp, as am.), which provides that in applications for access, the goal of “maximum contact” is to be pursued.

[62] This statutory requirement is not the basis for material change. To the contrary, the principle was expressly considered by Czutrin J. in his reasons (at para. 89). As noted by Justice Myers in an earlier endorsement in this matter, the present hearing is not a “do-over”. There is no basis to support a finding of material change based on s. 16 of the Divorce Act – rather, MC’s reliance on the provision is an attempt to relitigate the issue of access without evidence of material change.

Factor 6: LL’s behaviour towards MC

[63] MC submits that LL’s alleged reluctance to answer his phone calls or emails, advise him of medical and education decisions, and LL’s conduct with respect to travel and passports all constitute a material change.

[64] It may be the case in some situations that a failure to advise a parent of medical and educational decisions might lead a court to conclude that a parent cannot meet the needs of a child in a fundamental way. However, the evidence in this case does not support such a finding.

[65] LL filed detailed evidence of numerous attempts on her part to advise MC of educational and health-related issues. While MC submits that LL was not specific enough in her notifications, the evidence demonstrated that MC did not respond for lengthy periods of time to certain issues. Consequently, any failure of LL to be more specific in no way reaches the level of affecting her ability to parent.

[66] Similarly, LL filed evidence of numerous emails from her to address passport and travel issues.

[67] With respect to LL’s reluctance to communicate, this issue was considered by Czutrin J. as the basis to award custody to LL. An award of custody and decision-making power does not give LL carte blanche to make any decision affecting J without consultation. However, the evidence does not support a finding that LL believes she can act on health and education matters without consultation with MC. Rather, the evidence demonstrates a willingness on LL’s part to consult with MC, and is established by their cooperative attendance and participation in the HSC Report.

[68] For these reasons, this factor does not support a finding of material change.

Factor 7: Sabotaging relationship with others

[69] MC submits that LL has “sabotaged” his relationship with teachers, doctors, and others by commenting on him to those professionals.

[70] However, on the evidence before the court, none of the independent educational or medical professionals who dealt with J gave any evidence that their views of MC had been tainted by any comments made by LL. It was LL who expressed an opinion that those professionals had been “bullied” or “intimidated” by MC after he had contacted them to discuss J’s. health and educational needs.

[71] Consequently, even if this factor could support the material change test under Brown, it does not arise on the facts of this case.

[72] In any event, an order for increased access would have no bearing on this factor, even if it could be seen as a material change.

Conclusion - MC’s motion

[73] For the above reasons, MC has not met the threshold required to establish a material change based on the above factors, whether individually or on a cumulative basis. Consequently, I dismiss his motion.

b) LL’s motion

[74] It was clear from the outset of LL’s motion that the relief she was seeking primarily arose out of compliance issues and clarification sought with respect to the Czutrin Orders. Her proposed draft order addressed locations for exchanges, specificity on dates for Christmas and summer holidays, and payment of section 7 expenses, which are compliance and clarification issues.

[75] LL does seek a change in the Czutrin Orders to (i) prevent MC from being able to consult with J’s teachers and professionals about his well-being and (ii) dispense with consent of MC to permit LL to travel with J. However, Czutrin J. specifically addressed these issues in his order, and it cannot be a “do-over” for LL as well. There is no material change set out in LL’s evidence, let alone a change related to the proposed variation of the Czutrin Orders.

[76] In the past, MC has disagreed with some of LL’s educational and medical decisions about J and MC may continue to do so in the future. However. LL did not submit any evidence of material change to either J’s needs or the ability of J’s parents to satisfy those needs, except for an argument that MC’s refusals to agree as to J’s treatment were affecting LL’s ability to meet his needs.

[77] However, Czutrin J. anticipated that the parties might disagree on health and educational issues affecting J, and gave decision-making power to LL, so it cannot be said that his order might have been different. MC is entitled to be advised of those changes and is entitled under the Czutrin Orders to have access to those professionals to discuss the issues.

[78] Similarly, with respect to LL’s request to remove consent to travel there is no evidence that MC has refused such consent, let alone that it has resulted in a material change affecting J’s interests in a fundamental way.

[79] Consequently, there is no material change to support such the changes in the Czutrin Orders sought by LL.

Case conference

[80] At the hearing, the court offered to conduct a case conference to address issues of non-compliance and specificity, if the court were to hold that the parties could not meet the threshold required to establish material change. Given the extent of the material prepared for these motions, and under Rules 2(2) and 2(3) of the Family Law Rules, O. Reg. 114/99, as am., a case conference would be a just means to attempt to save expense and time and deal with the issues in a manner appropriate to their complexity.

[81] The parties indicated that if their respective motions were unsuccessful, they would be prepared to attend before me at a case conference during my summer sitting schedule so that the court can try to work with the parties to resolve those differences, rather than generate another motion (or motions).

[82] Consequently, I will conduct a case conference to address non-compliance and specificity issues raised in the material before me. I will rely only on the material filed for this motion at the case conference. The parties cannot file any new briefs but simply must only file a confirmation form to confirm attendance.

Order and costs

[83] For the above reasons, I dismiss both motions. MC asked for the opportunity to present costs submissions in writing. If MC seeks costs in light of these reasons, he may deliver those submissions to the Family Law Office no later than June 23, 2016, limited to a maximum of three pages. LL can deliver responding costs submissions in writing, limited to three pages, to the Family Law Office, no later than July 7, 2016.

Justice Glustein

DATE: 20160609

COURT FILE NO.: FS-08-340601-0001 DATE: 20160609 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

L.L. Applicant – and – M.C. Respondent

REASONS FOR DECISION

GLUSTEIN J. Released: 20160609

[^1]: The parties have been identified by their initials in earlier decisions of this court, so I maintain this practice. I refer to the applicant mother as “LL” and the respondent father as “MC” throughout these reasons. I also refer to the parties’ son as “J”, and in any documents in which he is referenced, I replace the actual name used in the document with the initial “J”.