Court File and Parties
CITATION: Armstrong v. Vanneste, 2017 ONSC 5835
COURT FILE NO.: FC-09-2160-2
DATE: 2017/10/11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: O’Neill Armstrong, Applicant
AND
Ann Marie Elizabeth Vanneste, Respondent
BEFORE: Madam Justice Robyn M. Ryan Bell
COUNSEL: Thomas R. Hunter, Counsel for the Applicant Claudia J. Bordes, Counsel for the Respondent
HEARD: September 7 and 8, 2017
reasons for decision
Overview
[1] On September 27, 2013, following a nine day trial, Linhares de Sousa J. made an order for the joint custody of the child Quinn Jaden Vanneste Armstrong to the father, O’Neill Armstrong and the mother, Ann Marie Elizabeth Vanneste, providing that the child’s primary residence was to be with the mother, and providing access to the father on an incremental schedule. The order was made in the context of what Linhares de Sousa J. described as “a very high conflict family law matter.”
[2] Mr. Armstrong moves to change the order. His position is that notwithstanding the order and reasons for judgment, Ms. Vanneste continues to parent as she pleases and to engage in parental alienation. He alleges numerous breaches of the terms and spirit of the order that he says collectively constitute a material change in circumstances justifying a variation of the order in Quinn’s best interests. Mr. Armstrong seeks an order that Quinn be in the care of each parent on a week on, week off basis.
[3] Ms. Vanneste’s position is that the conflict between the parties continues, but has not increased. They remain unable to communicate with one another and are unable to cooperate in parenting Quinn. Ms. Vanneste says that there has been no material change in Quinn’s circumstances justifying a review of the custody and access provisions of the order. She argues that, in any event, the plan proposed by Mr. Armstrong is not in Quinn’s best interests.
[4] The issues on this motion are:
(i) Has there been a material change in Quinn’s circumstances since the order of Linhares de Sousa J.?
(ii) If so, what custody and access arrangements are in Quinn’s best interests?
The Record on Motion
[5] The record on the motion is extensive. Mr. Armstrong filed five affidavits of his own. In addition, he filed an affidavit of his common law spouse, an affidavit of the common law spouse of the mother of Mr. Armstrong’s common law spouse, and affidavits of three neighbours.
[6] Ms. Vanneste filed two affidavits of her own, as well as affidavits of Quinn’s older brother, affidavits of both maternal grandparents, and an affidavit of the man with whom Ms. Vanneste has been in a relationship for over two years.
[7] At the outset of the hearing, counsel for Ms. Vanneste sought to file an additional affidavit sworn September 7, 2017, relating to events over the Labour Day weekend. I allowed the affidavit to be filed. Following submissions of counsel, I struck all of the paragraphs in the affidavit except paragraphs 6 to 11, on the basis that the paragraphs struck out constituted argument. Mr. Armstrong gave viva voce evidence in response to paragraphs 6 to 11 of Ms. Vanneste’s affidavit and was cross-examined. Paragraphs 6 to 11 of Ms. Vanneste’s September 7, 2017 affidavit and Mr. Armstrong’s viva voce evidence form part of the record on this motion.
Factual Background
[8] Mr. Armstrong and Ms. Vanneste were married in January 2006. In June 2006, Mr. Armstrong adopted Ms. Vanneste’s son from a previous marriage.
[9] Quinn was born on October 10, 2008. He was eight months old when the parties separated in June 2009. He is now almost nine years old.
[10] Mr. Armstrong has been employed on a full time basis as a driver by OC Transpo since April 2015. He has been living with his common law spouse since October 2011. Their son Noah was born in October 2016. The father of Mr. Armstrong’s common law spouse lives with them in Orleans.
[11] Ms. Vanneste is a high school teacher at All Saints Catholic High School. Although Quinn’s brother is 11 years older than Quinn, the two brothers are very close. Ms. Vanneste’s parents live across the street from Ms. Vanneste and her two sons in Kanata.
[12] Since their separation in June 2009, Mr. Armstrong and Ms. Vanneste have experienced conflict, at times involving the police and the Children’s Aid Society.
[13] At trial, Mr. Armstrong sought an order of shared custody of Quinn, granting him approximately equal parenting time with Ms. Vanneste. In the alternative, Mr. Armstrong sought an order granting him joint custody of Quinn, with liberal weekly access to him with a review of the parenting arrangement to take place in six months. Ms. Vanneste opposed Mr. Armstrong’s application. She sought an order granting her sole custody of Quinn and an order that access between Mr. Armstrong and Quinn continue to be supervised.
[14] Linhares de Sousa J. granted the parties joint custody and granted Mr. Armstrong unsupervised access gradually increasing to the current schedule of alternate weekends and one overnight visit per week.
The Order of Linhares de Sousa J.
[15] The specific provisions of the order in issue on this motion are the following:
There shall be an order for the joint custody of the child Quinn Jaden Armstrong, born October 10, 2008, to the Respondent mother, Ann Marie Elizabeth Vanneste, and the Applicant father, O’Neill Armstrong.
The child’s primary residence shall be with the Respondent.
The Applicant shall have the right to make inquiries, and to be given information, as to the health, education and welfare of the child either from the Respondent directly and/or any professional who may be involved in treating the child or involved with the child’s medical health, any professional from the child’s educational facility or any other professional involved in the welfare of the child. In order to effect this part of the order, the Respondent shall, within three days of the release of this judgment, provide the Applicant with the names and coordinates of all professionals involved in the health, education and welfare of the child so that the Applicant may pursue his inquiries and obtain this information.
The Applicant shall have the right to be informed and consulted before any major decision is made regarding the health, education, religion, residence and general welfare of the child. The parties shall attempt to reach an agreement on these major decisions after a reasonable period of consultation. In the event that the parties cannot reach a joint decision then the Respondent shall have the right to make the final decision. If after such a decision is made by the Respondent, the Applicant is not persuaded that the decision is in the best interests of the child, then he may bring the issue to court.
6i. Commencing the first full weekend of September 2014, in addition to the weekly weekday access from after school until 7 p.m., the Applicant shall have access to the child every second weekend from Friday after school until Sunday at 7 p.m. When this full weekend access is implemented and in place, the Applicant’s access exercised on Saturday from 9 a.m. to 2 p.m. of the weekend he does not have overnight access to the child, shall cease and the weekly weekday access shall become an overnight visit from after school until the commencement of school the next morning.
6j. In November 2014, in addition to the weekly weekday overnight access, the Applicant’s weekend access exercised every second weekend shall be extended from Friday after school until Monday morning when school commences. When access runs from Friday to Monday every second weekend, then the Applicant shall be responsible for picking up and dropping off the child at this school. This access will continue until the parties shall otherwise agree or a court orders otherwise.
9a. Whenever the Applicant’s weekend falls on a long weekend or when the child may have a non-school day on Monday or Friday on the weekend he spends with the Applicant, the Applicant’s weekend access with the child shall be lengthened to include that free or extra time.
9b. Commencing in the year 2015, the Applicant shall have access to the child for one-half of the child’s March school break, unless the parties can agree to alternate the sharing of this holiday between them from year to year.
- It is the responsibility of the Respondent to prepare the child for the new arrangement in access to the Applicant.
Applicable Statutory Provisions
[16] Any decision dealing with the custody of and access to a child is determined by what is in the best interests of the child: “[i]n making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the conditions, means, needs and other circumstances of the child” (Divorce Act, R.S.C. 1985, c. 3 (2nd Supp., s. 16(8)).
[17] Subsection 17(5) of the Divorce Act states:
Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.
[18] Subsection 17(6) of the Divorce Act provides that in making a variation order, the court shall not take into consideration any conduct that, under the Act, could not have been considered in making the order in respect of which the variation order is sought.
[19] While the Divorce Act applies, the factors found in subsection 24(2) of the Children’s Law Reform Act are relevant to any case dealing with the best interests of children (R.S.O. 1990, c. C.12) . Subsection 24(2) of the Children’s Law Reform Act provides:
Best interests of child
- (2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
Reasons for Judgment of Linhares de Sousa J.
[20] Mr. Armstrong relies on a number of findings made by Linhares de Sousa J. and portions of Dr. Worenklein’s report. Dr. Worenklein is a clinical psychologist who gave evidence at the trial.
[21] There were findings made by Linhares de Sousa J. that cast both parties in an unfavourable light. The issue on this motion, however, is whether there has been a material change in circumstances since the order warranting a variation of the order in Quinn’s best interests.
Has there been a Material Change in Circumstances?
Position of Mr. Armstrong
[22] Mr. Armstrong alleges that since the trial, Ms. Vanneste has continued her conduct of parental alienation. She continues to parent in a vacuum and has failed to act as a joint custodial parent. He alleges that Ms. Vanneste has breached the order and the spirit of the order, the cumulative effect of which constitute a material change in circumstances. In the Analysis section of these reasons, I address some of the examples of Ms. Vanneste’s alleged breaches of the order.
Position of Ms. Vanneste
[23] In summary, Ms. Vanneste’s position is that she has made every effort to adhere to the terms of the order. The matter continues to be high conflict (but the level of conflict has not increased) and Mr. Armstrong’s allegations against her are nothing new. Her position is that many of the examples relied on by Mr. Armstrong as evidence of parental alienation illustrate the lack of trust between the parties and the animosity Mr. Armstrong continues to hold against her.
Analysis
[24] Before the court can consider the merits of the motion to change, the court must be satisfied that there has been a material change in the circumstances of the child since the last order was made. If the moving party is unable to show the existence of a material change, the inquiry can go no further (Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27, 134 D.L.R. (4th) 321, at para. 10). The court must be satisfied that: (a) there has been 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; (b) the change materially affects the child; and (c) the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order (Gordon v. Goertz, at paras. 12-13). The onus is on the moving party to show that there has been a material change in the circumstances of the child.
[25] It is clear from all of the evidence that the high conflict situation observed by Linhares de Sousa J. continues to this day. There is little trust or good will between the parties. Apart from the agreement to use nominees, cooperation between the parties is lacking. The evidence demonstrates failures by both parties to communicate in parenting Quinn. I am not satisfied, however, that there has been a material change in Quinn’s circumstances since Linhares de Sousa J. made her order.
(a) No Change in Quinn’s Needs or Parents’ Ability to Meet Quinn’s Needs
[26] I find that there has been no change in Quinn’s needs, condition, means or circumstances since the order was made. The only evidence on behalf of Mr. Armstrong in this regard is the observation that Quinn takes a couple of hours to adjust to the access change. This observation is insufficient to establish a change in Quinn’s needs or circumstances, particularly given the considerable evidence filed as to the positive, loving relationship Quinn and his father share. Although Mr. Armstrong’s position is that Ms. Vanneste’s behavior has adversely impacted his ability to have a meaningful relationship with Quinn, the evidence is to the contrary. In addition to Mr. Armstrong’s own evidence in this regard, Mr. Armstrong’s common law spouse describes him as a warm and loving father. A neighbour describes Quinn as very upbeat and happy when in the presence of Mr. Armstrong, stating that it is clear that Quinn loves, looks up to and respects his father.
[27] I also find that there has been no change in either parent’s ability to meet Quinn’s needs in a fundamental way. Quinn has a loving home with his father in Orleans and a loving home with his mother in Kanata. Mr. Armstrong’s work schedule has posed challenges for the parties; however, with the use of nominees and the provision of Mr. Armstrong’s work schedule, the parties are facilitating the access arrangement.
(b) No Change Materially Affecting Quinn
[28] While repeated or protracted breaches of a final order may constitute a material change in circumstances justifying a change to a final order, such breaches must be material and affect the child’s best interests. For example, in Laurin v. Martin, Mackinnon J. found a material change in circumstances affecting the child’s best interests in “the father’s protracted non-compliance with the terms of the existing order in a material way, especially in the important area of the child’s education” ([2005] W.D.F.L. 3446, 2005 CanLII 24596, (Ont. S.C.), affirmed on appeal at [2005] W.D.F.L. 4329, 2005 CarswellOnt 5084 (Ont. C.A.)). In Laurin, the father’s conduct had resulted in the child’s frequent absences from and late arrivals to school.
[29] In Chin Pang v. Chin Pang, the father alleged that the mother had repeatedly breached the custody and access terms of a final order by denying him access to the child (2013 ONSC 2564, [2013] W.D.F.L. 4710). Price J. found that the repeated breaches of the order amounted to a material change in circumstances that affected the child’s interests, by undermining the child’s access to his father to such a degree that a variation of the order was justified.
[30] I turn to the breaches alleged in this case.
[31] Mr. Armstrong’s evidence is that Ms. Vanneste has, contrary to paragraph 1 of the order, described herself as the “primary parent.” Quinn’s school bag and soccer ball have the initials “QV” on them. A newspaper article refers to Quinn’s surname as Vanneste. Mr. Armstrong’s evidence is that Ms. Vanneste is behind negative comments made by Quinn about Mr. Armstrong. In response, Ms. Vanneste says that she cannot control the school board’s use of the term “primary parent.” She denies that the use of the initials “QV” on Quinn’s soccer ball and school bag and the use of Vanneste as Quinn’s surname in the newspaper article are evidence of parental alienation. Her evidence includes a list of negative comments Quinn has made to her.
[32] As examples of breaches of paragraph 4 of the order, Mr. Armstrong points to the fact that he was not listed as a contact person on Quinn’s school file, Ms. Vanneste’s failure to provide him with Quinn’s health information, and her failure to provide him with school documents until he specifically requested them. Ms. Vanneste’s evidence is that she has endeavoured to ensure that Mr. Armstrong has the information he is entitled to and needs to care for Quinn. She has given Mr. Armstrong school information but he has failed to communicate with her as to the additional information he would like to see. Mr. Armstrong regularly attends Quinn’s school and obtains documents for himself.
[33] As examples of breaches of paragraph 5 of the order, Mr. Armstrong points to Ms. Vanneste’s failure to consult with him in advance of a June 2014 assessment of Quinn, and her completion and submission of a form for Quinn’s enrollment in a French program at school before he received the document. Ms. Vanneste denies that the June 2014 assessment was a psychological assessment of Quinn and notes that the report is not in the record. Ms. Vanneste agrees that had it been a psychological assessment, prior consultation with Mr. Armstrong would have been appropriate. With respect to the French program, Ms. Vanneste’s evidence is that although she invited Mr. Armstrong’s input, he failed to respond to her and Quinn related to her Mr. Armstrong’s preference.
[34] Mr. Armstrong’s evidence is that on the first professional development day at school that fell on Mr. Armstrong’s access weekend, he was required to involve the police as neither Quinn, nor Ms. Vanneste, were present at the designated location. Ms. Vanneste responded that she was not aware he intended to exercise access as he had not provided her with notice. This, Mr. Armstrong alleges, is an example of a breach of paragraph 9(a) of the order. Ms. Vanneste’s evidence in response is that Mr. Armstrong did not communicate with her that he would like to exercise access; in addition, the situation was aggravated by the fact that Ms. Vanneste had to be with her sister at the hospital that day.
[35] Paragraph 9(b) of the order provides that commencing in 2015, Mr. Armstrong shall have access to Quinn for one half of Quinn’s March break. Mr. Armstrong’s evidence is that Ms. Vanneste “dictated” how the two and half days were to be divided between Mr. Armstrong and Ms. Vanneste, contrary to the order. Ms. Vanneste’s evidence is that she offered access for March break.
[36] Mr. Armstrong’s evidence is that he was not invited to attend Quinn’s First Communion, was denied access on Christmas Eve, 2014, notwithstanding his offer to drive Quinn to and from church that evening, and that Ms. Vanneste prevented him from attending Quinn’s Christmas concert at school. Ms. Vanneste’s evidence is that she did not involve Mr. Armstrong in Quinn’s First Communion as he had never before expressed any interest in attending church services or requested any information regarding Quinn’s religion. She has asked that Mr. Armstrong permit Quinn to attend church services during his access, in part, to allow Quinn to see both of his parents participating in events that are important to him. As to the Christmas concert at school, Ms. Vanneste’s position is that Mr. Armstrong is engaging in speculation.
[37] Mr. Armstrong alleges that paragraph 10 of the order has been breached in the following manner: before every access visit, Ms. Vanneste takes Quinn out of school for 30 minutes and removes school books and documents from Quinn’s school bag. His evidence is that Ms. Vanneste shields or hides Quinn until the school bell rings and the transfer takes place. Quinn’s level of anxiety increases because of Ms. Vanneste’s conduct and Quinn is not himself of a couple of hours thereafter. In response, Ms. Vanneste says that she does not remember the transfers the same way. In any event, since the commencement of these proceedings, the parties have made arrangements to use nominees if Mr. Armstrong is not available at pick up or drop off time. Both parties agree that the use of nominees has been a positive step.
[38] The order requires that makeup visits are to be made up within the same week unless the parties otherwise agree. Mr. Armstrong’s evidence is that Ms. Vanneste offered makeup days when she was aware that he was not available, resulting in 36 missed access visits. Ms. Vanneste’s evidence is that there have only been six cancelled access visits that have not been made up because of her inability to accommodate Mr. Armstrong’s work schedule. This issue, she says, has been resolved completely following Mr. Armstrong’s provision of his work schedule and Ms. Vanneste’s consent to the use of nominees to facilitate the access exchanges.
[39] In summary, the evidence points to Mr. Armstrong’s and Ms. Vanneste’s continued inability to communicate and cooperate in co-parenting Quinn. I am not persuaded, however, that Ms. Vanneste has breached the order in any material way affecting Quinn’s best interests.
[40] Quinn enjoys a strong and loving bond with his father and has an excellent relationship with his father’s spouse. There is no evidence that Quinn’s relationship with his father has been undermined by the current access arrangement.
[41] Quinn is also fortunate to have a happy, loving home in Kanata with his mother and his older brother. He is doing well in school. Despite the conflict and lack of communication between the parties, Quinn is thriving. There is no evidence that Quinn’s best interests have been affected since Linhares de Sousa J. made her order.
[42] The evidence as to the number of missed access visits is in dispute. I am not persuaded that Ms. Vanneste denied access to Mr. Armstrong by deliberately offering Mr. Armstrong makeup visits on days when she knew that he would be unavailable. Ms. Vanneste has consented to the use of nominees. Mr. Armstrong is now providing his work schedule. I find that Ms. Vanneste has not undermined Quinn’s access to Mr. Armstrong.
(c) No Change that Could Not Have Been Reasonably Contemplated
[43] The third branch of the material change test requires that the change be one that was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. In this case, I find that the possible continuation of the conflict between Mr. Armstrong and Ms. Vanneste was contemplated by Linhares de Sousa J.
[44] Epstein J.A.’s statement at paragraphs 35 to 38 of Litman v. Sherman is apposite here:
According to the trial judge, “since the birth of their child, the parties have been altogether incapable of cooperating with one another in order to raise Rachel.” This finding is well supported by the evidence…It follows that, unlike in Griffin, the conflict between the parties did not constitute either a change or a situation that could not have been foreseen by them at the time of Nelson J.’s order…It is clear that the parties’ relationship has been relentlessly acrimonious and conflictual since young Rachel’s birth. The fact that there has been no change in this sad state of affairs is what grounds my conclusion that the trial judge erred in re-opening the custody issue… (2008 ONCA 485, [2008] W.D.F.L. 3421).
[45] Mr. Armstrong is seeking an order that Quinn be in the care of each parent on a week on, week off basis. However, as Linhares de Sousa J. stated in her reasons for judgment:
[240]… Joint physical custody taking the form of equal time sharing in the care of a child requires at a minimum a modicum of trust, respect, ability to communicate, cooperation, flexibility or even some good will towards each other and a resolve to develop some of these attributes to being co-parents. I am not persuaded on all of the evidence that these parents, at least at this point in time, are capable of this, or even willing…
[46] Linhares de Sousa J. specifically referred to the acrimonious relationship between Mr. Armstrong and Ms. Vanneste in rejecting an equal time sharing relationship. In so doing, Linhares de Sousa J. contemplated the possibility that these two parties might continue to exhibit a lack of trust and respect for each other and continue to fail to communicate and cooperate in co-parenting Quinn. I find that the continuation of their conflict is not a material change in circumstances since the making of the order.
Merits of the Motion to Change
[47] As I have found no material change in Quinn’s condition, means, needs or circumstances since the order was made, I am precluded from considering the merits of the motion to vary Linhares de Sousa J.’s order.
Disposition
[48] For these reasons, I dismiss Mr. Armstrong’s motion to change the order of Linhares de Sousa J. dated September 27, 2013.
[49] In the event the parties are unable to agree upon costs of the motion, they may make written submissions limited to a maximum of five pages, double-spaced, exclusive of a costs outline. Written submissions shall be delivered by 5:00 p.m. on the fifteenth business day following the date on which this decision is released.
Madam Justice Robyn M. Ryan Bell
Date: October 11, 2017
CITATION: Armstrong v. Vanneste, 2017 ONSC 5835
COURT FILE NO.: FC-09-2160-2
DATE: 2017/10/11
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: O’Neill Armstrong, Applicant
AND
Ann Marie Elizabeth Vanneste, Respondent
BEFORE: Madam Justice Robyn M. Ryan Bell
COUNSEL: Thomas R. Hunter, Counsel for the Applicant Claudia J. Bordes, Counsel for the Respondent
reasons for decision
RYAN BELL, J.
Released: October 11, 2017