COURT FILE NO.: FS-17-21541
DATE: 20180306
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Panagiotis Tsiriotakis
AND:
Nadia Frances Rizzo
BEFORE: Madam Justice Kristjanson.
COUNSEL: Michael J. Stangarone/Amit Samuel Dror, for the Applicant
Cheryl Goldhart, for the Respondent
HEARD: January 25, 2018
ENDORSEMENT
[1] The respondent mother’s motion to vary interim access is part of a high conflict custody and access dispute involving a child who is now approximately19 months old. The parties, who are not married, separated in March, 2017 when the child was approximately 10.5 months old. The child was born in Toronto, where the parents were co-habiting. The habitual residence of the child prior to separation was Toronto. The mother unilaterally removed the child from his habitual residence in Toronto and took him to live with her parents in Windsor, without the knowledge or consent of the applicant father. The father commenced an application for custody and access in May, 2017 in Toronto. There have been a number of contested motions dealing with access since that time.
Procedural Background
[2] May 18, 2017: Madam Justice J. Wilson issued a temporary, without prejudice, consent Order on May 18, 2017. Pursuant to that Order the child would remain in the care of the mother in Windsor, and commencing May 21, 2017 the father would have supervised access to the child every Sunday from 9 a.m. until 5 a.m. in Toronto, at his residence or somewhere else of his choosing. The Order provided, on consent, that the mother would drive the child to Toronto for 9 a.m. and pick up the child from the father’s home at 5 p.m. or, at the mother’s option, on twenty-four hours’ notice the father could return the child to Windsor by 9 p.m.
[3] July 24, 2017: The parties appeared on a contested motion before Madam Justice J. Wilson on July 24, 2017, part of which was held as a conference. Madam Justice Wilson heard from the Brayden Supervision Services participants, who had been supervising the father’s access, by teleconference. Parts of the Order were made on consent, and parts of the Order were not on consent. The consent portion of the July 24 Order provided that access would no longer be supervised, and the father would provide the mother with a list of food and drink consumed by the child after the end of each visit.
[4] In the adjudicative part of her Order which was not on consent, Wilson, J. held that the child should commence overnight visits in Toronto with the father Saturday from 5 p.m. until Sunday at 5 p.m. Madam Justice Wilson also ordered that the respondent, or her delegate, shall drive the child to Toronto on the Saturday of each access visit and deliver the child to the father, and the father shall deliver the child to the mother or her delegate in Toronto on Sundays. Justice Wilson also ordered that the overnight access would occur so long as there was no significant issue/irregularity with the child’s eating. The respondent mother did not appeal this Order.
[5] September 19, 2017: The mother brought a motion heard by Justice Nicholson on September 19, 2017 to stay the implementation of overnight access, which was scheduled to commence four days later. Justice Nicholson adjourned the matter to allow for proper service and filing of materials by both parties. On consent, the parties agreed that the mother’s counsel would cross-examine the Brayden Supervision Services supervisors who had provided affidavits to the father, and the overnight access would not commence until the motion was determined. The mother ultimately did not cross-examine the Brayden supervisors.
[6] October 3, 2017: On October 3, 2017, on a motion heard by Justice Moore, the parties consented to an order adjourning the mother’s motion to stay overnight access to a long motion to be heard January 25, 2018 as the mother was requesting viva voce evidence to be heard at the motion. Overnight access commenced, as Justice Moore did not stay the overnight access provision of Justice Wilson’s July 24 Order pending the return of the long motion.
[7] January 25, 2018: By the time the long motion was argued before me on January 25, 2018, the mother had abandoned her motion to stay the overnight access ordered by Justice Wilson on July 24, 2017, and she did not call or seek to call viva voce as set out in the Order of Justice Moore.
VARIATION OF INTERIM ACCESS MOTION
[8] The mother now seeks a variation of the interim access Order made by Justice Wilson July 24, 2017. The mother seeks an order that weekend access alternate between Toronto and Windsor. In the alternative, if all visits are to continue in Toronto, she seeks a reduction in access so that the father’s weekend access would be every other weekend, not every weekend.
July 24 Order Not Intended to be Changed by Virtue of Scheduling Another Attendance
[9] The mother relies on two grounds. First, she argues that the July 24 Order was a temporary order “intended to be revisited and changed after a few months, since Justice Wilson “scheduled a further attendance for November, 2017.” I do not agree that the provision in the Order that a further attendance be scheduled in November either held or implied that the child’s access would be reviewed at such an attendance. Nothing in the Order indicates this. It would be highly unusual to do so after a contested motion has settled interim access; indeed, a judge on a case conference cannot change access without consent. I note that on July 24, Justice Wilson ordered the end of supervised access, the commencement of overnight access, and disclosure to be completed by the end of September, 2017. In Toronto it is common practice, after making substantive orders, to give some time for compliance and then to schedule a further case conference or settlement conference to move matters along. In family law, particularly where young children are involved, matters should either be expeditiously settled or tried in a timely manner. I do not find the Toronto access provision was intended to be changed after a few months as argued by the mother.
Material Changes in Circumstances
[10] Second, the mother also argues that access should be varied based on material changes since the July 24, 2017 Order. She cites three material changes:
(1) the child was only one years old at the time of the order and six months have passed since then, which is one third of the child’s life;
(2) it was summer then, and it is winter now; and
(3) at the time, the child had never spent unsupervised time in the father’s home. The idea of having the child spend every weekend in Toronto was so that he could get used to the new place. This has now happened as the father’s home is no longer new to the child and there is no longer any justifiable reason to force the child to travel every weekend from Windsor to Toronto.
[11] The burden of demonstrating a material change in circumstances since the July 24 Order is on the mother.
Variation of Interim Access Orders
[12] Section 29(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 provides:
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.
[13] The mother relies on the decision of Justice Price in Ceho v. Ceho, 2015 ONSC 5285 (Ont. S.C.J.), stating that access was established on a temporary, without prejudice basis, which means that a material change in circumstances is not required. I disagree. The July 24 Order is not a without prejudice order. Parts of that Order are on consent. However, the parts which the mother seeks to vary today are the Toronto location and duration of access visits. While the Toronto location was initially made in May on a without prejudice, temporary basis, the location formed part of the “not on consent” provisions of the adjudicated portion of the July 24, 2017 Order. As noted by Justice Price in Ceho v. Ceho at para 101:
It is a prior adjudication, or a determination based on a consent of the parties that represents a true acknowledgement by them that a custody or access arrangement is, in fact, in the best interests of the children, that commands deference by a court in the future.
[14] In this case, there was a judicial determination following a motion in July, 2017 that the access visits by the father should take place in Toronto. This is a determination that the access arrangement was in the best interests of the child, which commands deference by this court.
[15] Varying an interim order for access which has previously been the subject of a judicial determination on a motion requires the moving party to establish a material change in circumstances affecting or likely affecting the best interests of the child. The burden is not insubstantial, given that s. 29 of the CLRA has in part as a goal, “the avoidance of serial motions on the very same issue which may exhaust the parties’ resources and unduly burden the court:” Waxman v. Waxman, 2016 ONSC 3237 at para. 27. That is exactly the concern I now have, given the motion on this very issue was argued in July, 2017.
[16] Interim orders, including interim access orders, are “meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will get a full airing at trial,” and so requests to change them should be rare: Thom v. Thom, 2014 ONSC 2378 at para. 60, citing Brown, (1999) 1999 15074 (ON SC), 45 O.R. (3d) 308 (S.C.J.) at para. 34.
[17] As held by Justice S.B. Sherr in Preston v. Markle, 2011 ONCJ 641 (OCJ) at paras. 9 and 11:
[9] The Ontario Court of Appeal in Persaud v Garcia-Persaud, 2009 ONCA 782 sets out the need to first find a material change in circumstances before varying a custody or access order, at paragraph 3 as follows:
As this court has made clear, jurisdiction to vary a custody and access Order is dependent on 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 Litman v. Sherman (2008), 2008 ONCA 485, 52 R.F.L. (6th) 239 (Ont. C.A.). The matter is jurisdictional and a court must make a finding of a material change of circumstances even when, as here, both parties request a variation.
[11] The party seeking the variation bears the onus of demonstrating a material change that will materially affect the child. The change must have altered the child’s needs or the ability of the parent to meet those needs. The last order is presumed to be correct. Wiegers v. Gray, 2008 SKCA 7, 2008 CarswellSask 10 (C.A.).
Application of Material Change in Circumstances In This Case
[18] It is only if there has been a material change in circumstances that I may consider changes to the interim access provisions set out in the Order of July 24, 2017. In this case, I find no material change in circumstances.
[19] The first two reasons cited are that: (1) the child was only one years old at the time of the order and six months have passed since then, which is one third of the child's life; and (2) it was summer then, and it is winter now. On the latter point, the mother relied on evidence of bad winter driving conditions, and that (although she has not tried taking the train), the train would be difficult for a toddler.
[20] The Supreme Court of Canada in Gordon v. Goertz 1996 191 (SCC), [1996] 2 SCR 27 found that the change in circumstances must not have been foreseen or reasonably contemplated by the judge who made the original order. The change must be to the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child.
[21] None of the reasons cited – growing child, winter, train travel - are a material change in circumstances. A judge making an Order in July that the mother take the child to Toronto for access must be taken to have considered that in the winter, there might be snowstorms. The train travel provision takes into account winter driving difficulties. Many families take the train. On this point I accept the father’s evidence with respect to the comfort of the train and the ability to travel with a child on the train. The mother’s concern about the potential discomfort of train travel with a toddler is not a material change in circumstance in any event, since the July 24 Order specifically made provision for train travel, and the practicalities of travelling with a toddler on a train would have been within the contemplation of the judge. The passage of six months’ time is not a material change: a judge making an interim access order does so in contemplation that the order will last until trial.
[22] The third reason put forth as a material change is that “at the time, the child had never spent unsupervised time in the father's home. The idea of having the child spend every weekend in Toronto was so that he could get used to the new place. This has now happened as the father's home is no longer new to the child and there is no longer any justifiable reason to force the child to travel every weekend from Windsor to Toronto.” The concept that the father’s home is no longer new, hence there is a material change, does not make sense. Obviously, when making the Order in July, the fact that the child would be more comfortable visiting the home by January would have been foreseen or reasonably contemplated by the judge who made the original order.
[23] More importantly, the mother fails to understand the importance underlying the Toronto access provision, which is a provision made in the child’s best interests. The parties resided in Toronto when the mother unilaterally removed the child to Windsor. The parties’ home was in Toronto at the time of separation, and the father remains in Toronto. The parties had co-habited in a home owned by the child’s paternal grandmother. The father signed a lease for a two bedroom apartment for February 1, 2017. While the mother’s evidence is that she moved out in December, 2016 but for a brief period, I note that this is inconsistent with the mother hiring movers in September, 2017 to take her possessions from the leased premises (her possessions were moved into the leased premises after February, 2017). In any event, whether the mother left in December, 2016 or March 2017, the child was born and being raised by both co-habiting parents in Toronto when the mother took the child and unilaterally left Toronto, without the consent of the father.
[24] The Order was clearly directed to allow the father and the child to establish and continue their bond in Toronto, at the home of the father; the father made a home for his child, notwithstanding the unilateral removal. Custody and access are very much live issues in this case. The Toronto access location was part of the assessment of the best interests of the child reflected in the July Order. I accept the father’s evidence that access in Windsor, whether at a hotel or in the mother’s home, is not the same in terms of parenting opportunities: it interferes with the development of the father-child bond, and the father’s opportunity to independently parent.
[25] I have reviewed the voluminous evidence filed by both parties. There is no evidence of risk to the child. The evidence is that the father is a good parent. I reject the mother’s evidence regarding feeding issues: she maintained this position in light of the Brayden Supervision notes, and the healthiness of the child, and in the absence of documented contemporaneous notes or independent evidence.
[26] There are no compelling circumstances to change the order. I accept the father’s evidence that in his own home, the father/child bond is developing; eating and sleeping are proceeding well. The status quo should continue pending trial: Wozniak v. Brunton, 2005 18315 (ON SC), [2005] O.J. No. 2135 (S.C.J.) at paras. 12-14. This is the status quo which existed without reference to the unilateral conduct of one parent, unless the best interests of the child dictate otherwise: Trites v. Mallett, 2015 ONSC 441 (S.C.J.) at para. 25.
[27] Having unilaterally removed the child, the mother cannot now rely on travel to undermine the interim access arrangements which I find to be in the best interests of the child. The father has a business in Toronto, with many employees, customers and warehouses in Toronto which cannot be moved. The mother was working in Toronto as a naturopathic doctor; she could clearly work again in Toronto. She has worked very few hours as a naturopathic doctor in Windsor since relocating. She prefers to reside with her parents in Windsor. I find that the best interests of the child favour the continued access with the father in Toronto; this is consistent with the maximum contact principle as well. The father’s position best exemplifies the maximum contact principle. He should be given the opportunity to parent his child. Relocation, custody and access will be dealt with at the trial.
[28] I have found that the mother has not met her burden to establish a material change in circumstances since July that would lead to the change in access location (alternating weeks in Toronto/Windsor) or the reduction in access (every other weekend in Toronto, not every weekend.)
[29] Therefore, I dismiss this motion with costs.
Concerns re Mother’s Non-Compliance with Access Order
[30] I have additional concerns, however, that the mother is not complying with the terms of access. The evidence filed before me indicates that she refused to bring the child to Toronto two times citing weather concerns, and three times citing sickness, with no medical evidence provided. She refused to take the train to avoid the driving conditions.
[31] The father attended in Windsor in late December and early January, when the mother refused to bring the child to Toronto. The mother’s counsel in her oral submissions states that the Father “agreed” to Windsor; this is a misapprehension and misrepresentation of the evidence. Telling an access parent that instead of seeing his son as the court ordered in Toronto he can see his son in Windsor or not at all, is not an “agreement” to access in Windsor. It is using the child as a bargaining chip. This is unacceptable conduct; it is conduct in breach of a court order. Rule 1(8) gives this Court wide-ranging powers to impose sanctions for breach of court orders. The father has raised the issue of contempt, but has not brought a motion for contempt. Other than costs, he has not sought any specific sanctions as listed under Rule 1(8). The existing record may be relied on if he wishes to bring a motion for contempt or a motion for additional sanctions under Rule 1(8). I am taking this opportunity to ensure that the mother understands her duties to comply with the existing court orders, and all future court orders.
[32] In light of the high degree of conflict in this family, and important issues about their child’s future, this matter should proceed quickly to trial. The parties are directed to schedule a Case Management Conference or Settlement Conference within 30 days of receipt of this endorsement. All financial disclosure should be complete by the next Case Conference.
Costs
[33] I will provide a separate decision on the costs of this motion, as well as costs of the mother’s abandoned motion to stay overnight access. The Bills of Costs were provided to me at the motion, and oral costs submissions were made. After the hearing, I received unsolicited written submissions from both parties on the overnight access motion, which I did not review until I had completed this decision. I note that at para. 28 of the mother’s submissions, she refers to an Offer to Settle she intends to provide as part of her costs submissions on the overall motion.
[34] The parties must be clear on their positions regarding both costs of this motion (location of access) and the abandoned (overnight access) motion. I note that much of the evidence originally marshalled for the overnight access motion was also used on argument of the variation motion. The father should clearly identify the amounts claimed by the father for each motion, and for both motions, including scale of costs. The mother should clearly identify her position on quantum as well as entitlement for each motion. All supplementary submissions are to be provided to me no later than March 21.
Kristjanson, J.
Date: March 6, 2018