CITATION: Fias v. Souto, 2016 ONSC 5301

ONTARIO

Court File Number

Ontario Superior Court of Justice

FS-13-18943-01

(Name of Court)

at

Toronto

Endorsement

(Court office address)

Date

Applicant(s):

Aretusa Fias

x

Present

Heard: August 12, 2016

Counsel:

Alan Honner

x

Present

OCL Counsel: Karen Lindsay-Skynner

x

for the child

Respondent(s):

Nuno Pereira Souto

x

Present

Counsel:

Lauren Speers

x

Present

Duty Counsel

Order to go in accordance with minutes of settlement or consent filed.

Fa Factums required on all motions 2 days before.

Background to this motion to change:

[1] This is the respondent father’s motion to change the final custody order made by Stevenson J on February 6, 2015, following an 8-day trial in late November of 2014. The final order awarded joint custody of the parties’ son Kael, (born April 7, 2009) with primary residence to the father. Kael is to reside with his mother alternate weekends from Friday after school until Monday morning at school, every Wednesday overnight, and alternate Thursdays, overnight, during the weeks Kael is not going to be with her on the weekend. The final order also contains comprehensive provisions concerning holidays, PD days, telephone contact, communication through ourfamilywizard.com and decision making, including a mechanism to resolve important decisions if the parties do not agree.

[2] The final order also provides that its parenting provisions “shall be reviewed in one year to ensure Kael’s needs are being met. The parties shall do this through counsel and it is recommended that a mediator be retained by the parties to resolve any issues at that time and to assist with any adjustments to the parenting plan.”[^1]

[3] Father launched an appeal of the trial decision, including both its parenting and financial provisions. In addition to appealing, instead of following the review procedure set out above, he launched an “urgent” motion without notice in early March of this year, seeking an immediate order to grant him sole custody and to reduce and limit mother’s access considerably. Principally, he asserted the custody regime Stevenson J had ordered was not working, and mother had twice used physical discipline with Kael.

[4] The motion came on before Kiteley J, prior to a case conference. She noted the motion could not proceed in the face of the father’s outstanding appeal. She ordered father to undertake to discontinue the custody aspect of his appeal, and bring a motion to change in this court, on notice, as the appropriate procedure. He did so. This is the motion to change.

[5] Kiteley J has managed the case and assigned it significant priory, arranging the court’s schedule to accommodate the motion on August 12, so a decision in Kael’s interests could be made before the start of the school year.

[6] Since the Office of the Children’s Lawyer had provided significant evidence and input at the trial as to Kael’s best interests, On April 8 Kiteley J made an order requesting their assistance again for the purposes of the motion to change. She asked the OCL to appoint counsel for Kael, now age 7. The OCL accepted the request, and appointed counsel for the child.

[7] The OCL assigned Ms. Lindsay-Skynner as counsel to Kael on April 26. She immediately wrote to the parties to arrange interviews with them. She also asked for a “clinical assist”, namely, the appointment of a clinician to assist her in representing Kael and to file an affidavit with the court. Throughout the month of May, Ms. Lindsay-Skynner wrote repeatedly to father’s counsel regarding this issue. She had no reply.

[8] In the meantime, in response to the request for a clinical assist, the OCL appointed Shannon Deacon as the appropriate clinician to assist Kael’s counsel. Ms. Deacon had been the social worker assigned to the case before the original trial, and she provided significant evidence to the court then, both by way of two reports as well as oral evidence at trial. On June 6, Ms. Lindsay-Skynner wrote to the parties to advise them Ms. Deacon had been appointed to assist her in representing Kael.

[9] Father objected to Ms. Deacon’s further involvement, stating, through his lawyer:[^2]

Given that it is our client’s firm belief that Ms. Deacon lied under oath during the parties November 2014 trial regarding the statement she made (under oath) that she would have made different recommendations had she been aware of the Respondent’s profession as an exotic masseuse (as she had been informed by third parties and in writing about her profession) and also because Ms. Deacon represented to the court during her testimony at trial that she had recommended joint custody because she was ‘supposed to do that’ and had done so on [sic] the ‘hope that they would learn to get along’ we strenuously object to Ms. Deacon’s appointment to this file. Our client has zero faith in Ms. Deacon’s honesty and integrity and is moving to change the access recommendation that has seen a young child bouncing like a ping pong ball between Oakville and Etobicoke, waking up unsure as to where he will be going when he has been diagnosed with ADHD and requiring stability and consistency, also Ms. Deacon’s custody recommendation that has seen the child repeatedly subject to physical discipline at the hands of a parent who, the CAS disclosure shows has been repeatedly cautioned for same.

[10] The OCL immediately appointed a different clinician to assist Kael’s counsel, rather than become embroiled in a conflict over father’s allegations against Ms. Deacon. Because of father’s objection to the first clinician appointed, the OCL’s representation of Kael was somewhat delayed until a new one could be appointed. The clinician’s affidavit could not be completed until August 4, 2016.

[11] Kiteley J, in managing and “fast-tracking” the case set out a clear timetable for delivery of materials, and clearly ordered no further affidavit material would be permitted from either party. Her endorsement of June 22, 2016 states, in part: “However, because of Kael’s special needs as indicated in the psycho-educational report on which the moving party relies, this is a motion that has to be decided before the resumption of school in September.”

[12] June 28 was the date originally scheduled for the hearing of this motion to change. It came on before Kiteley J. The OCL was not in a position to proceed on that date, and had not yet filed material. Kiteley J declined to split submissions into two portions, and instead adjourned the hearing to today’s date, saying: “Strictly speaking that date is not available in the court calendar but I consider this case to be a priority which should be resolved, if possible, before school starts.” The endorsement went on to provide: “Neither party may serve and file any further material with respect to this motion to change.” Thus, it was clear the parties would not be permitted to respond to any affidavit from the OCL, if or when it was delivered.

[13] Nevertheless, at the commencement of the hearing before me, father’s counsel asked for an adjournment of his motion so he could respond to the OCL affidavit. Both mother and the OCL objected.

[14] I find it somewhat ironic that father, who had begun his effort to change custody on an urgent basis with an ex parte motion, and who has had the court accommodate the purported urgency would seek to adjourn to file further material that was clearly prohibited by Kiteley J’s order. I denied the adjournment request and heard the motion to change.

The parties’ positions:

[15] Father says joint custody is not in Kael’s best interests. As he puts it in his Form 15:

The conflict between the parties continues and the Applicant is abusing the phrase “joint custody” by misleading professionals and not informing that the Respondent has final say, causing every professional to first refuse to provide help for Kael until the Respondent has presented them with the Reasons for the Order and the professional has read the entire thing. The Respondent seeks sole custody but will still provide the notice of important decisions as set out in paragraph 1(a). The Order at paragraph 1(d) specifies that only if the Respondent [sic] does not fulfill her ability to dispute in writing can the Respondent make a decision after 30 days. This is not in Kael’s best interests. Kael has immediate needs as well as eventual ones.

[16] Father takes the position the trial decision imposes too many transitions for Kael with mid-week overnight access. He relies on the opinions of professionals who, he says, have all agreed Kael requires consistency and fewer transitions.

[17] Father also says that mother uses physical discipline with Kael, and lies about it to authorities.

[18] Last, father asserts that the requirement the parties use myfamilywizard.com to communicate is not appropriate. He says the parties use email, which is more secure. He says since mother likes to have a “back and forth” dialogue, usually while one of them is driving, email is better, since it can be used with voice to text.

[19] Essentially, father asserts mother is incapable of parenting Kael, and therefore her time with Kael should be restricted and limited.

[20] The mother takes the position there has been no change in circumstances warranting any change to the current arrangements. She says Kael’s behavioural problems have improved markedly as a result of his being diagnosed with ADHD and receiving very effective medication for the condition. She says his teachers and other collaterals have noticed the same thing. She says Kael’s strides result from both the medication and the current parenting arrangements. She says they should not be changed.

[21] The new clinician’s affidavit sets out current information from significant collaterals in Kael’s life, her own observations of Kael’s interactions with his parents, and some indication of Kael’s wishes and preferences.

[22] As to Kael’s wishes and preferences, the clinician deposes Kael expressed almost nothing in this regard. On July 20, 2015 he said “that he wanted to reside with both parents.” When pressed further he said “this would be ‘fair’. He said that he was happy with the way things were.”[^3] The clinician warns, however, that not too much should be made of Kael’s wishes and preferences because of his young age and the fact he only expressed very limited views and preferences on one occasion. She says it is not possible to say whether his views are consistent or independent. They are not strong. She would be hesitant to place too much weight on them.

[23] Ultimately, Kael’s lawyer’s position on his behalf is there should be no change to the custody/access arrangements set out in the final order.

The law:

[24] The seminal case dealing with material change in circumstances in the context of a parenting decision is Gordon v Goertz. [^4] There, the Supreme Court of Canada held that “a material change in circumstances is one that alters a child’s needs, or the ability of the parents to meet those needs in a fundamental way. The change should be one that the court could not have reasonably anticipated in making the original order. Moreover, it must be a change that could have resulted in a different order had it been known at the time.”[^5]

[25] I therefore begin with the original judgment itself, and assume, as I must, it was correct having regard to all the facts and circumstances before the trial judge at that time. I must then determine whether there has been any material change in circumstances since the order was made that would warrant a change in the parenting provisions.

The evidence now in relation to the trial judge’s findings:

[26] I look at the evidence on the motion to change through the lens of some of the findings of fact the trial judge made. This is at least a starting point to determine if circumstances have changed in any material way since then.

[27] The trial judge noted that father has sought sole custody of Kael from the very beginning. Father continues to seek sole custody, and has done so ever since the trial decision was released.

[28] Shortly after the trial decision, father expressed the similar sentiments to a Children’s Aid worker, making a home visit. The worker’s contact log from February 11, 2015 reads:

Nuno [father] is extremely angry about the Family Court order. He was escalated and emotional. He feels that the entire system in Canada is broken and he regrets the day he ever moved to Canada. He was particularly upset about the support amounts he has been ordered to pay Aretusa [mother] given that he provided proof she is working and earning her own income. Nuno advised he is broke and will have to file for bankruptcy as a result of the order.

I encouraged Nuno to, at some stage, accept that an order has been made and try to move forward with Aretusa in a coparenting relationship. This escalated him further. He expressed that he does not accept the court order as final, and that he will never stop fighting for what is right. He feels he has been discriminated against as a man.[^6]

[29] When I take this note together with all the other evidence on this motion to change I conclude father’s drive for sole custody has continued unabated since long before the original trial.

[30] The trial judge found that due to parental conflict, Kael was experiencing many ongoing difficulties. Parental conflict continues. As I will elaborate later, Kael is no longer experiencing the same kind of difficulties he did before.

[31] The trial judge heard nothing from father’s new partner, even though she was in the courtroom throughout most of the trial. The trial judge drew an adverse inference from this failure. Father’s new partner has been a stepmother to Kael for a further year and a half since the trial decision. She failed to provide the court with any evidence for this hearing either. I draw a similar adverse inference.

[32] The trial judge observed that father complained the interim access schedule imposed by Frank J (essentially the same schedule as the trial judge ordered) had too many transitions for Kael. Nevertheless, the trial judge noted the father had unilaterally moved Kael’s home to Oakville so father could be with his new partner and her children in their home. This resulted in a new home environment for Kael, new siblings, new school and daycare. On this motion to change father asserts there are too many transitions for Kael, and thus he should have sole custody. First, father is the author of putting this kind of distance between Kael and both parents. Second, this is a situation that was squarely before the trial judge when she made her final order. Nothing has changed in this regard.

[33] The trial judge found the father was not encouraging a relationship between Kael and the mother. He did not support telephone calls between mother and Kael. Father had failed to follow Frank J’s temporary order, even though the trial judge found its terms were clear. As I will set out in more detail, the same pattern appears to continue.

[34] The trial judge also expressed concern that father did not permit mother any extended summer access. This year, Kiteley J had to determine the summer access schedule, even though it was clearly set out in the trial decision.

[35] The trial judge concluded “I am not convinced that Mr. Souto is doing everything that he can to actively encourage a relationship between Kael and Ms. Fias. His behavior has contributed to the ongoing conflict and its enormous impact on Kael.”[^7]

[36] The trial judge also said the mother was “not without fault”. The trial judge found mother has struggled with parenting and has also acted inappropriately. She has continued to engage in conflict. She was less than forthright with the OCL. Father has pointed out that similar faults and failings continue.

[37] That being said, even with each parent’s faults and limitations, the trial judge concluded that Kael has a close relationship with both his parents. She recognized the parents have differing parenting styles, and sometimes mother has struggled with controlling Kael’s behavior. The foundation of the custody disposition at trial is found at paragraphs 57 and 58 of the Reasons for Decision, where the trial judge says:

Despite my concerns outlined above with some of Mr. Souto’s behavior, since separation Mr. Souto has consistently provided Kael with more structure regarding his behavior and he has made appropriate decisions with respect to obtaining treatment regarding Kael’s ongoing physical and educational needs. I agree that Mr. Souto should continue to have primary care of Kael. Ms. Fias has struggled at times with her parenting, but I also recognize as Ms. Deacon has, that Ms. Fias has played, and continued to play, an important role in Kael’s life and he would also benefit from Ms. Fias’ input. Ms. Fias does not seek that Kael’s primary residence be with her, but as indicated, she wants to be involved in decision making and seeks joint custody.

Ms. Deacon feels that both parties are capable of contribution to decision making and that both parents have Kael’s best interests at heart. Having heard all of the evidence, I agree. Both parties love Kael and Kael loves each parent. Both have a loving relationship with him and there was no evidence to suggest otherwise. Additionally, both have equally engaged in the conflict.

[38] On a motion to change I am obliged to conclude the original decision was correct. I cannot go behind the decision and come to a different conclusion on those facts.

[39] As I have said, the father launched an appeal of all aspects of the trial judgment. He has now discontinued the custody appeal, and frames his case as a motion to change because of changed circumstances.

[40] Essentially, the crux of the father’s claim for a change to sole custody seems to be centred on two incidents of physical discipline mother has allegedly used with Kael. First, he noted bruising on Kael’s buttocks. Kael, when pressed, reported mother had hit him with a sandal. Father reported the matter to the Children’s Aid society. They investigated, and reported the matter to the police. Mother was interviewed and directed not to use any type of physical discipline with Kael. Mother’s evidence has a photo of the sandal in question. It appears to be a soft slipper. That being said, it is never permissible to hit a child. After a full investigation, no charges were laid. No protection concerns were identified.

[41] The second incident occurred when Kael had a nosebleed at mother’s house. He reported to father that mother had hit him by accident. The circumstances surrounding the nosebleed are unclear. Kael is apparently prone to nosebleeds, particularly at his father’s home.

[42] Again, father reported the matter to the CAS. They investigated this incident as well and took no further steps, other than to advise mother not to use physical discipline with Kael.

[43] This is not the first time the CAS and police have been involved with Kael and his parents. There is a history of complaints and charges. All have been investigated. The CAS’ concerns about Kael have all arisen as a result of the high level of parental conflict between his parents. They have closed their file.

[44] It is noteworthy that even when Kael was as old as 5, he was soiling himself. According to his paediatrician this is quite unusual in a child of that age. She described it as an emotional issue. The paediatrician says the fact Kael is no longer soiling means that he had become more emotionally stable. This is an important change for the better for Kael. Interestingly, Kael began to soil again around the time he was being questioned recently by the CAS and the police about the slipper and nose bleed incidents. Happily, the soiling issue has again resolved.

[45] It seems to me father’s hypervigilance about what might be transpiring at mother’s house has resulted in over-reporting to authorities with resultant anxiety in Kael. It might have been a more prudent course for father to ask mother what had happened, before rushing off to report matters.

[46] That being said, slapping the child’s bottom with a slipper is unacceptable. If that is what caused the bruising, it is clearly a cause for concern. The fact the CAS has closed its file and no charges have been laid should be a relief to all concerned. I am sure mother regrets her actions, and will take steps to ensure she deals with disciplinary issues in a more appropriate way. She should follow up on the OCL’s recommendation that she “would benefit from the in home training and education that could have been provided by ROCK if the file had not been closed and if they were in her catchment.” Apparently, similar services might be available to the mother through George Hull or Hincks-Dellcrest. Mother should follow up.

[47] As to the nosebleed, it too has been investigated, and nothing further needs to be done. If Kael is prone to nosebleeds, perhaps this is something his paediatrician might want to investigate. If he is not, that should be the end of the matter.

[48] Father also complains that mother has been non-compliant with administering Kael’s ADHD medication. Mother attributes part of the difficulty to being without sufficient funds to fill the prescription and also confusion with the pharmacy about filling the prescription to provide medication in both homes. Any problems around this have been resolved by having the school administer the medication.

[49] The paediatrician reported to the OCL that mother was initially resistant to the diagnosis of ADHD and wanted to reduce Kael’s dosage of his medication even when they had established the appropriate therapeutic dosage for him. The paediatrician has had no recent contact with mother, and there is no evidence that the problem continues. In fact, mother herself has been similarly diagnosed, and is now taking the same medication as Kael. By all accounts, things have improved on that account.

Discussion:

[50] It is difficult to determine precisely what material change in circumstances the father asserts has occurred. In his factum, he says:

the material change in circumstance here is that Kael has been professionally diagnosed as needing stability, and that the Applicant again appears incapable of providing him with the kind of stability of care, routine and discipline Kael requires in terms of the need outlined in the recent psycho-educational assessment letter … It is clear to the respondent that she [mother] has problems with consistent and appropriate parenting, and also, telling the truth to the CAS and to the police.[^8]

[51] I assume that when he refers to a professional diagnosis, father is referring to the psycho-educational assessment that was conducted for Kael after the trial. Sometime in the fall of 2015 Kael was referred to Dr. Christina Ricciuti to conduct a psycho-educational assessment of Kael. It is not clear from her report who made the referral. Dr. Ricciuti describes the reason for the assessment as follows:[^9]

In efforts to better understand Kael, he was referred for an updated comprehensive psychological assessment, to objectively determine his intellectual/cognitive and academic levels, understand his social/emotional/behavioral profiles, and to evaluate whether or not he meets criteria for an autism spectrum disorder (ASD). This information will be helpful in guiding school and treatment planning through Kael’s elementary and middle school years, in building to his areas of strength and style of learning, promoting Kael’s success academically, behaviorally, and socially, as well as boosting his resiliency and overall positive adjustment.

[52] Dr. Ricciuti noted that Kael’s behavioral challenges had become far more apparent after his parents separated. However, since he began to take medication his social worker reported to Dr. Ricciuti that Kael’s behavior had shifted dramatically.

[53] Dr. Ricciuti observed Kael to be a “quiet but friendly respectful and pleasant young boy.” He was able to settle in to the testing environment easily and was able to follow directions when it was time to begin the testing.

[54] According to the report, Kael’s test results show a marked improvement in the overall efficiency of his cognitive processing. In other areas of testing, Kael’s results showed significant improvement as well. His language based reasoning capabilities, expressive language and receptive language show him performing above his age expectations. His results demonstrated far stronger skills when compared to the results of the testing he had undergone at age 4 ½.

[55] The tests administered to determine Kael’s speed of processing also showed a considerably stronger performance than his testing at age 4 ½.

[56] In considering whether an ASD diagnosis was appropriate for Kael, Dr. Ricciuti opines that he “presents with a few mild symptoms that might be suggestive of an ASD … At this juncture, in my opinion, Kael presents with only subtle or subclinical symptoms … and thus I am ruling out an ASD. Further, Kael’s clinical presentation and symptoms may be better explained by his ADHD, immaturity, behavior problems, and the impact of his family situation …”[^10]

[57] Ultimately, Dr. Ricciuti recommended the parents share her report with Kael’s school. She also recommended an IPRC so Kael’s individual Education Plan (IEP) can be updated/revised to accommodate for his specific needs, including his high intelligence. Kael’s lawyer has provided an affidavit from the clinician assisting her in representing Kael. The clinician deposes that Kael’s Resource Teacher has received the assessment report and supports have been put in place at school. An IPRC date is set for October of this year, but Kael already has an accommodated plan at his actual grade level.

[58] Dr. Ricciuti also recommended both parents work closely with teachers and staff at Kael’s school to send the message that “we’re all in this together.”

[59] Dr. Ricciuti made some specific recommendations around Kael’s coping with separation and divorce. These include (but are not limited to):

a) Parents are strongly encouraged to present as a united front around parenting decisions and especially around behaviour management and discipline. The rules and expectations should be similar, especially in determining what is and is not acceptable behaviour and the consequence for misbehavior. Kael will feel safer and more secure when he knows that to expect, what the rules are, the consequences, and consistently applied discipline.

b) Allow Kael to be honest with his feelings

c) Both parents are encouraged to look at the role they play in Kael’s life, and perhaps create some balance, so that each shares in the role of the attachment figure, disciplinarian and playful parent. While the goal is not to change the personality or interaction style of either parent, it is merely suggested each take 1 or 2 examples of a different role and implement them in creating balance.

d) Kael will do better when both homes share a high level of structure, stability and predictability. This does not mean each parent’s routines need to be exactly the same, but creating regular routines at each household, and consistently communicating to Kael what to expect will provide him with a sense of calm and stability.

e) Parents should never argue in front of Kael, either in person or over the phone. The parents should make it a priority to develop an amicable relationship, since watching the parents be friendly can reassure Kael and teach him positive problem solving skills.

[60] Ultimately, Dr. Ricciuti recommends the following:

In the end, the best outcome for Kael will occur if he has a positive relationship with both parents throughout his life. If parents can keep long-term goals – Kael’s physical and mental health, parent independence – in mind, and avoid disagreements about daily details, especially by thinking ahead in order to stay calm, it is expected that Kael will thrive and meet his potential academically, socially, behaviorally and emotionally.

[61] In many ways Dr. Ricciuti’s recommendations echo the Reasons for Decision.

[62] The OCL clinician also deposes that she and Kael’s counsel spoke to Dr. Ricciuti, who confirmed that it was father who had requested the assessment. Dr. Ricciuti advised them her report had been prepared as a tool to help Kael at school for accommodations and services. She noted that Kael is a very bright child who will manipulate both parents. She said mother seemed to want the assistance offered by the Reach Out Center for Children, (ROCK), but the father was rigid around having the mother included. Dr. Ricciuti went on to tell the clinician and Kael’s lawyer that the best thing for Kael is to have both of his parents. The behavioral, academic and medical recommendations in the assessment are the gold standard. There should be no change to them.[^11]

[63] The Resource Teacher also reported to the clinician and Kael’s lawyer that when the parents fight, as they had in February, Kael’s behavior escalates. February, or course, is when father launched this motion to change.

[64] Kael’s lawyer, with the assistance of the clinician, spoke to many collaterals, including his teachers and paediatrician. All have commented positively about the dramatic improvement in Kael’s behavior since his diagnosis with ADHD and his starting medication for the condition. While father complains mother was not entirely compliant regarding the medication, by all accounts he now receives his medication regularly and reliably at school. Mother was initially concerned the medication was interfering with Kael’s sleep. With adjustments to the dosage that is no longer a problem. Since mother wanted to decrease the medication, even when the appropriate therapeutic level had been reached, a decision was taken to have the school administer the medication to ensure mother would not be out of compliance. This has worked well. Kael tolerates the medication well, and it has resulted in an almost miraculous change in his behavior.

[65] For example, the principal of Kael’s school told Kael’s lawyer that Kael is very responsive to his medication. It works well and Kael was a “different kid” when he came back to school after the summer this year. He calmed down this school year and was having a better time socially. Once his behavior settled down in grade 1, other children were now more willing to play with him.

[66] When Kael’s lawyer and clinician spoke with his paediatrician, they learned that “it’s astonishing how he’s improved” in the two years since she started seeing him. He is doing incredibly better. The doctor commented on Kael’s earlier soiling issues, and said the fact he is no longer soiling meant he had become more emotionally stable. He is a lot calmer now.

[67] The paediatrician has followed up with father’s concerns about FAS or FAD. These have been ruled out. Similarly, father’s concerns about ADS were explored, but ruled out by Dr. Ricciuti. The paediatrician had little to say about the mother, since she had only met mother twice. She did comment that mother was resistant to the initial diagnosis of ADHD, and even when the medication level was stabilized, mother wanted to decrease it. Any potential problem with mother administering the medication was resolved by having the school give it to Kael. The doctor credits father with all Kael’s positive changes. Ultimately, the paediatrician says Kael does not need to see a psychiatrist any more. He is healthy. His immunizations are up to date.

[68] What has changed since the trial decision? Nothing has changed, except Kael is doing better. Kael’s lawyer says: “we would suggest that there be no change to Kael’s residential schedule as currently he is doing very well and there is a risk of destabilizing him once again.”[^12] She identifies the main problem as “getting the parties to stop fighting and to follow the Court orders and recommendations for Kael. Both parents have failed to follow Court orders and both are partly responsible for the continuing conflict. Given the fact that Kael is doing well, compliance with Court Order of the Honourable Justice Stevenson would be suggested prior to any further changes being made for Kael.”[^13]

[69] It is true mother is not a perfect parent. She has parenting challenges. She had these challenges at the time of trial. She still has them. While she seems to be making some efforts to get some professional help, they have not been significant. That said, this is no change from the time of trial. The collaterals to whom Kael’s lawyer spoke all emphasize the importance of Kael’s relationship with his mother. This echoes the trial judge’s findings and conclusions.

[70] Importantly, father’s relentless drive against mother to obtain sole custody has neither changed nor ameliorated. This is one of the reasons Stevenson J declined to order sole custody in father’s favour in the first place. As she put it at paragraph 59 of her reasons:

I find that it is in the best interests of Kael that the parties have joint custody. Given some of the actions of Mr. Souto in the past in not sharing all information with Ms. Fias, not supporting telephone calls with Kael and Kael’s relationship with Ms. Fias, failing to also accept his responsibility for the ongoing conflict and unilaterally changing Kael’s residence, I am concerned that if he is given sole custody, he will attempt to deny Ms. Fias any input into decisions and withholding information from Ms. Fias regarding Kael. This would only lead to more conflict and will prevent Ms. Fias from being involved in Kael’s life which is not in Kael’s best interests.

[71] Father’s behavior has continued in the same vein. For example, notwithstanding the terms of the final order, he has refused to use myfamilywizard.com to communicate important information about Kael. This has resulted, for example, in his failing to advise mother in a timely fashion about Kael’s appointment to see a gastroenterologist.

[72] The trial judge went on to set out a very specific mechanism for the parents to consult and come to an agreement on major issues about Kael. She said, at paragraph 61: “I want to ensure that there is meaningful consultation on these major issues given my concerns raised above.”

[73] From what I can tell, the referral for the psycho-educational assessment came from father. I do not know if mother was consulted. She should have been. Similarly, the paediatrician commented on a referral to rule out FAS or FAD in Kael. Since she only met with mother twice, it is logical to infer the referral was made without any consultation with mother.

[74] These instances suggest to me that even in the face of a very clear joint custody order, father still attempts to deny mother appropriate input into decisions regarding Kael, and withholds information from her. The foundational reasons Stevenson J declined to order sole custody continue to exist. Father sought sole custody at trial. His claim was rejected in large part because of the concerns set out above. Father seeks sole custody now. The same reasons for concern continue unabated. There should be no change to the custody regime.

[75] Sadly, however, the future does not bode well for Kael if his parents cannot learn to let go of the anger and distrust each feels for the other and somehow resolve their conflict. Kael is a bright little boy who faces significant challenges in terms of his behavior. Clearly the conflict between his parents, and his father’s continued and constant complaints to police and Children’s Aid Societies have had a deleterious effect on him. The fact he began soiling and bed wetting again after he was interviewed yet again by police and CAS workers speaks volumes.

[76] Of particular concern are Kael’s lawyer’s comments that the father refuses to co-parent with mother, notwithstanding the clear provisions of the judgment. Although the parents were obtaining help through “ROCK”, the file has been closed and ROCK declines to provide further services “due to the conflict and Dad continuing to be angry and blaming Mom.”[^14]

[77] The OCL’s role as Kael’s counsel was to provide the court with an update regarding Kael’s views and preferences, an update from important collaterals, and an update of suggestions and recommendations regarding Kael’s future.

[78] Kael did not express any strong, independent wishes and preferences. Thus, I can give no weight to the somewhat vague and generic wishes he expressed.

[79] From all the collaterals, however, a clear picture emerges of a child whose behavior has improved dramatically, and whose emotional well-being appears much improved as well. He is doing well, forming some friendships, and his psycho-educational testing shows marked improvement from when he was last tested. He is doing well.

[80] Kael’s lawyer advises the court the CAS file has been closed. From the interview with the paediatrician, the OCL concludes there are no concerns from her point of view about either Kael’s “self-harm”[^15] or issues of soiling.

[81] Kael’s lawyer recommends there be no change to the parenting arrangements. She points out that Kael has achieved stability and any change in the arrangement could well destabilize the remarkable gains he has achieved.

[82] As Kael’s lawyer put it, the parents seem to have the problem, not Kael. They must address their conflict. More importantly, Kael’s lawyer points out that the provisions of the judgment have not been followed properly. Father has refused to use myfamilywizard.com, as ordered. It appears the consultation and decision-making provisions of the judgement have not been followed. The OCL suggests there should be complete compliance with all the provisions of the judgment before the court should consider any changes to it.

[83] I agree. One cannot tell whether there have been material changes warranting a change to the provisions of the judgment unless and until the provisions have been followed.

[84] This is a case about parental conflict. Parental conflict permeated every aspect of the trial before Stevenson J. She crafted a comprehensive and detailed parenting plan that provided the parents with a roadmap to guide them through virtually every potential situation they might find themselves in. They must follow that roadmap; it is designed to avoid conflict, and provide a clear decision-making guide.

[85] The real change is that Kael’s behavior is improving since his diagnosis and starting medication for his condition. By all independent accounts he is more settled, less aggressive and socially more accepted by his peers.

[86] Having regard to the psycho-educational assessment, the reports from the teachers and other professionals in Kael’s life, and the submissions of his counsel, the current parenting arrangement is best suited to meeting Kael’s needs. Nothing has changed that would warrant any alteration to it.

[87] The final order required the parties to undertake a review of the parenting arrangements a year following the decision. Instead of following that procedure, the father launched an appeal of the parenting decision, and then moved without notice for a change to sole custody, and then ultimately withdrew his custody appeal and launched this motion to change.

[88] On this motion, I have reviewed the parenting provisions contained in the order to ensure Kael’s needs are being met. I have determined they are. Accordingly, the review contemplated by the final order has been conducted. No further automatic review is required.

Conclusion:

[89] As stated above, this motion to change shall constitute the parenting review contemplated by paragraph 14 of the final order of Stevenson J. No further automatic review shall take place.

[90] Since father has failed to demonstrate any material change in circumstances, the parenting arrangements set out in Stevenson J’s final order shall continue. Both parties shall fully comply with the final order in relation to communication through ourfamilywizard.com as well as with all other provisions of the order.

[91] The motion to change is therefore dismissed. Costs to the mother fixed at $7,000 all inclusive, to be enforced as support. SDO to issue. No costs for the conferences where costs were reserved. Neither party has demonstrated any compelling argument to entitle either of them to costs of those attendances.

MESBUR J.

Released: 20160822

[^1]: Fias v Souto 2015 ONSC 880 (“Reasons for Decision”) per Stevenson J at paragraph 203(xvii) [^2]: Letter of June 7, 2016 from Ms. Speers to Ms. Lindsay-Skynner [^3]: Paragraph 29 affidavit of Tricia Ryan sworn August 4, 2016 [^4]: Gordon v. Goertz, [1996] S.C.R. 27 [^5]: Applicant’s factum at paragraph 42, referring to paragraph 12 of Gordon v Goertz [^6]: CPIN Contact Log of CAS dated 11/02/2015 found at Exhibit “H” of mother’s affidavit sworn 15 June 2016 [^7]: Reasons for Decision, paragraph 49 [^8]: Father’s factum at paragraph 1 [^9]: Psycho-educational report dated January 14, 2016, exhibit “H” to father’s affidavit sworn May 26, 2016 [^10]: Psycho-educational report [^11]: Paragraph 11, affidavit of Tricia Ryan, sworn August 4, 2016 [^12]: Paragraph 36 affidavit of Tricia Ryan [^13]: Ibid., paragraph 37 [^14]: Ibid. paragraph 33 [^15]: Kael sometimes pulls at his hair, pulling it out and causing a bald spot, and bites the skin around his fingernails