Court File and Parties

COURT FILE NO.: 10620/15

DATE: May 28, 2018

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: H.E.M., applicant

AND: S.R.M., respondent

BEFORE: VOGELSANG J.

COUNSEL: Catherine McCorquodale for the applicant (respondent in the motion) The respondent (moving party) in person

HEARD: May 18, 2018

Endorsement

[1] This motion involves two young girls, P.E. and K.M., now eleven and four years of age respectively. The applicant and respondent are the parents of the children. They were divorced by the order of Raikes J. dated December 23, 2016.

[2] The respondent’s most unfortunate past history with children led the Children's Aid Society to intervene when P.E. was born. The applicant was not aware of the respondent’s sad history with the Society when their relationship commenced. The parents recovered the child after ten months and the applicant assumed the role of primary caregiver which she maintained after the parties separated in September, 2015.

[3] The parties entered into a separation agreement on May 25, 2016. The respondent was to have unsupervised access on Wednesday afternoons, every other Saturday from 1 p.m. to 7 p.m. and every other Sunday from noon to 2:30 p.m. (later extended to 10 a.m. to 3 p.m.). The applicant was to be the sole custodian of the children who would have their principal residence with her.

[4] On October 7, 2016, I made a final order based on the parties’ written consent and the agreement. Oddly, the respondent commenced a motion to change the custody order less than two months after it was made. In questioning, the respondent admitted that even when he signed the May 2016 agreement, he intended to seek a change in a few months. His disregard for his agreement wastes court resources and offends the clear notion that a motion to change cannot be used as an indirect route of appeal from the original order: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.).

[5] The respondent’s motion fails for a second obvious reason: a complete lack of a material change in circumstances. The Children's Law Reform Act, R.S.O. 1990, c. C.12 states:

29 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.

[6] In Goertz, the Supreme Court of Canada set out the test for establishing a material change:

13 It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

[7] Spence J., in McCall v. Res, 2013 ONCJ 254 (Ont. C.J.), observed:

15 In the case of Preston v. Markle, [2011] O.J. No. 5509 (Ont. C.J.), Justice Stanley B. Sherr stated at paragraphs 9, 10 and 11 [my emphasis]:

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.

The Supreme Court of Canada in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 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. 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] S.J. No. 12, 2008 CarswellSask 10 (C.A.). [their emphasis]

[8] The decision of the respondent himself to move to Aylmer and then to Thamesford cannot amount to a material change. His driving time has not increased substantially. Although he had suggested that the birth of his daughter in his new relationship might represent a material change, he did not explain how in his submissions, and the fact of the birth itself does not provide the required proof of change: Deslauriers v. Russell, 2016 ONSC 5285 (Sup. Ct.).

[9] The clinical investigation of Crystal Langdon dated March 12, 2018 and her addendum of April 25, 2018 do not persuade me that a change has occurred since the order was made; indeed, I am baffled by the investigator’s apparent lack of concern over the serious and concerning statements volunteered by P.E. regarding her father’s treatment of her during access. To me, that is quite inconsistent with her repeated recommendation that the respondent and P.E. attend counselling to repair their relationship.

[10] Although the respondent sought a change of the order to joint custody, he did not mention that issue in his submissions. In any event, his behaviour in the text messages he sent to the applicant demonstrates a disputatious, uncooperative and challenging attitude quite inimical to a consideration of joint custody: Chomos v. Hamilton, 2016 ONSC 5208 (Sup. Ct.).

[11] The respondent’s motion is dismissed except with respect to the extension of Sunday access time as the parties have arranged.

[12] Ms. McCorquodale will have until June 29, 2018 to make written submissions concerning costs (maximum four pages) and the respondent will have a further 30 days to respond. If necessary, a brief reply may be submitted within 15 days thereafter. All costs submissions are to be sent to the Superior Court trial coordinator at Woodstock.

“Justice Henry Vogelsang”

Justice Henry Vogelsang

Date: May 28, 2018