ENDORSEMENT

[1] On June 18, 2014, the applicant commenced an application where he sought two forms of relief. One claim requested access to his child, Kaitlyn Ashley Brooke Stewart, born, December 15, 2002, on a graduated access schedule; the appointment of the Office of the Children’s Lawyer; an order that the respondent cannot change the ordinary residence of the child outside of Ottawa; an order to the respondent advise the applicant of any changes of the child’s address 90 days before they occur; an order that the respondent provide the applicant with the name of the child’s school, doctors and other service providers; and that the applicant may consult directly with the service providers to obtain information about the child’s well-being.

[2] The second claim for relief was a variation of the order of the Honourable Justice Métivier dated October 3, 2008 varying the amount of table child support, setting the amount of the arrears and establishing a repayment schedule for set arrears.

[3] The respondent originally filed an Answer dated July 14, 2014 which was amended on December 16, 2014. The gist of the respondent’s claim regarding the variation of access is that there has been no material change in circumstances since the order.

[4] Even though the claim filed by the applicant deals with two claims for relief, the respondent fails to deal with the variation of child support. On access, the respondent’s position is that there is no change in circumstances and that the applicant should not have any access to the child, and in the alternative, if there is any access, it should be limited to telephone access once per month.

[5] At a case conference, the Office of the Children’s Lawyer was appointed. Ms. Nadine Crowley was appointed the social worker to deal with this family.

[6] Ms. Crowley completed a report dated February 20, 2015 after having a disclosure meeting with the parents. Ms. Crowley made the following recommendations:

a) Kaitlin’s primary residence and care to remain with the mother;

b) that the father shall attend counselling to assist him with parenting skills; to assist him in addressing his anger and resentment towards the mother, and to assist him with the ongoing reconnection process and for a possible face-to-face meeting with his daughter;

c) that the father take responsibility for not contacting his daughter all these years by writing a letter of apology to her;

d) that, after reviewing the letter, the parents shall communicate by phone to discuss how this process can move forward;

e) that the mother provide the father with a telephone number and email address or Skype address to contact the child.

[7] Ms. Crowley confirmed that the parents were able to reach an agreement following the disclosure of this recommendation by the Office of the Children’s Lawyer resulting in a partial report confirming the recommendations and closing the file.

[8] The parties attended a settlement conference on July 13, 2015 before the Honourable Mr. Justice Ray. At that time, the matter did not settle and the respondent was granted permission to bring a motion for summary judgment.

[9] In the fall of 2015, the respondent brought a motion for summary judgment returnable January 14, 2016 to dismiss the father’s application; to prevent him from initiating any process regarding custody or access to his daughter; and to seek an order that this order would be a full and complete defence to the proceedings by the applicant for access.

[10] The January 2016 motion was adjourned. By notice of motion returnable April 7, 2016, the applicant sought the following relief:

a) an order granting the applicant reasonable access to the child, to include the right to communicate with the child by Internet, Skype, email, telephone, texting or mail, subject to her wishes and in accordance with the recommendations of the Office of the Children’s Lawyer dated February 20, 2015;

b) an order that when physical access visits commence, the respondent shall bear half of the transportation costs associated with the child’s access equally with the applicant;

c) an order that the respondent not remove the child from the province without the applicant’s prior written consent, such consent not to be unreasonably withheld;

d) an order that the respondent shall provide the applicant with at least 60 days’ notice of any proposed move of the child’s permanent residence;

e) an order that the respondent provide to the applicant copies of all school report cards, notices of parent-teacher interviews, order forms for school pictures, particulars of extracurricular activities, sports schedules and copies of medical reports relating to the child when they are received;

f) an order that the respondent shall notify the applicant if the child is sick, injured, requires any form of medical treatment or hospitalization or is subject to a medical emergency; and

g) costs.

[11] The respondent filed a second notice of motion returnable April 7, 2016, which is an amendment of her first notice of motion returnable January 14, 2016. The motions of April 7, 2016 were adjourned to July 5, 2016.

[12] The issues to be decided are whether or not there is a genuine issue for trial on the claims raised by the applicant in his application.

Analysis

[13] In this matter, the application raises two claims for relief, one with respect to access and a second with respect to support. The respondent’s motion seeks to dismiss the entire application.

[14] With respect to the support claim, there is a genuine issue for trial as to varying the table child support retroactive to October 3, 2008. The applicant alleges that there have been material changes in his circumstances since the finding that his income was $27,500 in 2008 that formed the basis of the child support order.

[15] The applicant has filed a financial statement, but despite the applicant’s request that the respondent share in the costs of transportation for the child, she has not filed any financial information, be it a financial statement, proof of income or a notice of assessment for any of the years in question, being from 2008 to 2016. The only information is that the respondent is on Ontario Works. The court finds that the issue of variation of child support raises various issues that require a trial such as the applicant’s income and the proper amount of table child support. Consequently, the motion for summary judgment on the application related to the support variation claim is dismissed.

[16] With respect to the claim for a variation of access, the court finds that the involvement of the Office of the Children’s Lawyer and the subsequent report dated February 20, 2016 are new facts that constitute a material change in circumstance since the decision of Justice Métivier dated October 3, 2008. Specifically, the report indicates at page 3:

Kaitlyn reports that she is willing to have contact with her father over the telephone and by computer if her apologized for leaving her life over six years ago. She adds that’s he would be willing to see him, however, she stresses that he would have to make the effort to travel to Owen Sound or meet them halfway.

[17] Counsel for the applicant alleges that the only independent evidence as to the child’s wishes was contained in the February 20, 2015 report from Ms. Crowley. Counsel for the respondent has provided the court with transcripts of emails allegedly between the daughter and the applicant. However, the applicant challenges the authenticity of the emails emanating from the daughter and argues there is no confirmation that in fact the child sent those emails.

[18] The situation in 2015 is different from 2008 when there was no access by the applicant. There is evidence that the child was willing to have contact with her father. The respondent alleges that the child no longer wishes to have any contact with her father and relies on the email exchange.

[19] The report of Ms. Crowley indicates that the child wanted to see the applicant and wanted to resume a relationship with him, but that there were certain steps we required to occur.

[20] The court agrees that the applicant has been dilatory in pursuing the required steps. While he sent the letter dated February 8, 2015 to his daughter, he only took a counselling course in 2016, almost a year after the recommendations were made.

[21] However, the respondent’s motion seeks a finding that there is no genuine issue for trial, and that consequently, the claim for access should be dismissed. The court disagrees. There is a genuine issue being the child’s wishes and what access is in her best interests.

[22] This child is 13 ½ years of age and in accordance with the OCL report, her wishes are an important factor in determining her best interests. However, the court requires an updated independent verification of the child’s views since the report was prepared in February 2015. Consequently, the court appoints the Office of the Children’s Lawyer to ascertain the child’s current wishes and provide an updated report. Once this report is received, the parties are to re-attend before me to determine if there remains a genuine issue for trial on the issue of access.

[23] Based on the above reasons, the mother’s motion for summary judgment is dismissed with respect to the claim to vary support and is adjourned on the motion for summary judgment with respect to access. Once the report of the Office of the Children’s Lawyer is completed, the parties are to schedule a new date, before me, for the completion of the motion for summary judgment on the issue of access. In the circumstances, the issue of costs is deferred to the completion of the motion with respect to access.

Mr. Justice Mark Shelston

Date: July 21, 2016

CITATION: Stewart v. Taylor, 2016 ONSC 4545

COURT FILE NO.: FC-05-1396-04

DATE: 20160721

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Ronald Kenneth Stewart, Applicant

AND

Brenda Annette Taylor, Respondent

BEFORE: Mr. Justice Mark Shelston

COUNSEL: David P. Gray, for the Applicant

Susan B. Arlitt, for the Respondent

ENDORSEMENT

Shelston J.

Released: July 21, 2016

Stewart v. Taylor, 2016 ONSC 4545

Case Summary

ENDORSEMENT

Analysis

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues