Court File and Parties

COURT FILE NO.: FS-17-00021941 DATE: 20180905 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ashley Barnes, Applicant/Respondent on Appeal AND: Jason Burke, Respondent/Appellant

BEFORE: Kiteley J.

COUNSEL: Joan Irwin, for the Applicant/Respondent on Appeal Claire Millgate for the Respondent/Appellant

HEARD: May 29, 2018

Endorsement

[1] This is an appeal by the father from the judgment of Justice Melanie Sager dated November 27, 2017 in which she granted the mother’s motion for summary judgment in the Motion to Change Final Order brought by the father. Sager J. held that the Respondent Mother had satisfied her that there was no genuine issue requiring a trial and she dismissed the Motion to Change Final Order with respect to custody and access provisions contained in the final order of Waldman J. dated July 25, 2013. For the reasons that follow, the appeal is dismissed.

Background

[2] The children were born January 2009 (a girl) and October 2010 (a boy). The parents were in a relationship until June 2011 at which time the children were 2.5 years old and 8 months old.

[3] In 2013, the parties were involved in a six day trial before Waldman J. which resulted in the final order of July 25, 2013. At that time the children were 4.5 years old and less than 3 years old. Waldman J. ordered that the mother have custody and the father have regular access including alternate weekends from Friday at 6:00 p.m. to Sunday at 6:00 p.m. and every Tuesday from 4:00 to 7:30 p.m. and the father was ordered to pay child support in the amount of $1232 per month based on an annual imputed income of $85,000.

[4] In a decision dated April 4, 2014, Waldman J. ordered the father to pay costs in the amount of $28,000.

[5] On May 9, 2014 the Appellant father brought a Motion to Change the access and child support provisions of the order. The children were then 5 years old and 3.5 years old.

[6] On July 10, 2014 Waldman J. made an endorsement indicating that she would not address any issues relating to the decision at trial and that the Appellant Father’s proper route was an appeal. She made an order that the Appellant father pay costs fixed at $400.

[7] On December 1, 2015, the Appellant father brought this second Motion to Change Final Order. The children were almost 7 and 5 years old.

[8] There were several court appearances referred to in the reasons for decision of Sager J. and ultimately the summary judgment motion was heard September 22, 2017 at which time the children were almost 9 years old and 7 years old.

Fresh Evidence

[9] Counsel for the Appellant Father had filed a motion for fresh evidence that consisted of the affidavit of Spenser Chalmers (law clerk in the firm representing Appellant Father) attached to which was an email from the Canadian Hearing Society dated February 15, 2018 confirming how the Appellant Father can arrange 10 hours of ASL training for the children during the time they are with him.

[10] Because it had been served after the facta had been delivered, I did not have written submissions on the admissibility. Counsel for the Respondent Mother took the position that the evidence did not meet the criteria for fresh evidence [1] but she did not oppose the court receiving it. In view of the position she took, I admitted the affidavit for purposes of the appeal.

Decision under appeal

[11] The motions judge referred to the detailed findings made by Waldman J. after the six day trial and she set out the test for a material change in circumstances established in Gordon v. Goertz [2]. She referred to rule 16 of the Family Law Rules and relevant jurisprudence. The motions judge summarized the Appellant Father’s alleged material changes in circumstances as follows:

(a) The parties continue to have conflict which the mother is mostly responsible for by abusing the order granting her sole custody;

(b) The father has hearing loss, which has worsened by 20% per year since the date of the final order. This affects his and the children’s ability to communicate with one another such that the children have to “learn how to communicate with a “hard of hearing” or “deaf” father”;

(c) The children must learn American Sign Language (ASL) to enable them to communicate with the father and in order to do so, they must spend more time in the father’s care. This will allow the children not only sufficient time to obtain training in ASL but it will also allow for more time practicing ASL while in the father’s care;

(d) The Children’s needs have changed now that they are older and are both in full time attendance at school;

(e) The mother enrolled the daughter in private school without consulting the father;

(f) The mother withdrew the son from private school against the father’s wishes;

(g) Both children have expressed a desire to spend more time with the father;

(h) The father’s home is closer to the daughter’s new school which makes picking her up and dropping her off at school in her best interests as she will spend less time in the car and more time in her father’s care;

(i) Increasing the father’s access will allow him to be a “hands-on role model for the children with respect to their modelling” an industry that he introduced the mother and children to;

(j) Increasing the time the children spend with the father will give him access to greater financial assistance and benefits available through the government which will ultimately benefit the children;

(k) It is unethical and not in the children’s best interest for the mother, who has a lavish lifestyle, to continue to receive the child tax benefit. In order for the father to receive the child tax benefit for one of the children, that child must have their primary residence with the father;

(l) The mother has been interfering in the father’s access by unilaterally cancelling visits, which pick up and drop off at the children’s schools would address as she would be unable to continue to act in this manner;

(m) The children have been exposed to disruptive behaviour by the mother at access exchanges such that altering the pick up and drop off of the children to their respective schools would eliminate this problem;

(n) The mother does not provide the father with the children’s passports upon request which interferes in his access to the children;

(o) The order requires the mother to arrange for make-up visits when she cancels a visit but does not have a mechanism for arranging make up access and one is required as the parties have been unsuccessful in doing this on their own; and

(p) The mother is gender biased as she spends more time, money and effort on the daughter than she does on the son.

[12] The motions judge reviewed and analysed the evidence in the affidavits and, in the conclusion with respect to each of them, the motions judge held that the evidence did not demonstrate a material change in circumstances. The only exception was in paragraph 79-80 where there is no explicit finding but her conclusion is implicit.

[13] The motions judge concluded as follows:

102 It is important to reiterate that Justice Waldman specifically states in her Reasons for Judgment that:

(a) The parties are unable to communicate with each other at all;

(b) The parties have argued repeatedly about the access schedule;

(c) The parties have argued about travel and travel documents;

(d) The [parties] have argued and had conflict in front of the children both at access exchanges and in the community;

(e) There have been numerous calls to the police;

(f) The father frequently disobeys court orders; and

(g) The mother complies with court orders.

103 The father wishes to re-litigate many of the issues that have already been decided by Justice Waldman. He has not produced any evidence to suggest that anything has changed since Justice Waldman made the above noted findings such that the final order should be re-visited. He raises the same complaints and concerns that were considered and dismissed by Justice Waldman following a 6 day trial.

104 The father has not provided any evidence as to how the children’s needs have changed since the previous court order. His evidence is focused entirely on himself and not the children and how they would benefit from the variation he is seeking.

105 The father has not provided the court with any evidence to establish that the children’s needs are not being met by the current order or that the variation he is seeking would address any of the issues he has raised. He makes many broad, sweeping allegations but provides no evidence to support these statements whatsoever.

106 The father’s request for increased and equal time with the children stem from his desire to have the children in his care equally, not from any needs of the children not being met by the current order.

107 None of the changes presented by the father have altered either child’s needs in any fundamental way or the parent’s ability to meet their needs. Many of the facts presented by the father existed at the date of the previous order. Even if the facts alleged by the father today did not exist at the time of the previous order, the evidence does not support the father’s position that the previous order would likely have been different.

[14] The motions judge then considered the alternative and she held the following:

116 If any one of the father’s alleged changes in circumstances is material and creates a genuine issue, I find that a trial is not required as the use of the expanded powers granted by Rule 16 of the Family Law Rules allows the court to adjudicate the father’s Motion to Change without the need for a trial. After weighing the evidence, evaluating credibility, and drawing inferences, I conclude that none of the changes raised by the father are material and as such do not affect the best interests of the children. The order of July 25, 2013 should not be interfered with.

Grounds of Appeal

[15] In his Notice of Appeal, the Appellant Father asserted that the motion judge made a number of legal errors related to the question of material change in circumstances and made certain factual errors regarding the definition of the term “material change”. The Appellant Father referred to other factual errors that he said demonstrated the need for a trial.

[16] In the factum, the Appellant Father listed the following as errors:

(a) Did the motions judge err in law in finding that the father’s continued hearing loss did not constitute a material change in circumstances?

(b) Did the motions judge err in law in finding that the changing communication needs as a result of the father’s progressive hearing loss, of both the father and children did not constitute a material change in circumstances?

(c) Did the motions judge err in law in finding that the mother’s unilateral cancelling of visits did not constitute a material change in circumstances?

(d) Did the motions judge err in law in finding that the changing circumstances of the children, now in full-time school did not constitute a material change in circumstances?

(e) Did the motions judge err in law in finding that the mother’s unilateral changing of the children’s schooling did not constitute a material change in circumstances?

(f) Did the motions judge err in law in finding that the stress on the children caused by the ongoing conflict between the parents did not constitute a material change in circumstances?

(g) Did the motions judge err in law in finding that the new activities for the children, including professional modelling, did not constitute a material change in circumstances?

(h) Did the motions judge make a palpable and overriding error when she characterized certain facts as agreed when there was, in fact, no agreement between the parties?

[17] In the factum, the Appellant Father asked that the decision dated November 27, 2017 be set aside and that the matter be returned to the OCJ for a trial to determine the best interests of the children.

[18] At the hearing before me, the Appellant Father asks that the order of Sager J. be set aside and that the Motion to Change Final order be set down for trial in the Ontario Court of Justice. Alternatively, the Appellant Father asks that this court order that the Ontario Court of Justice conduct a mini-trial in the context of the motion for summary judgment.

[19] In submissions at the hearing of the appeal, counsel for the Appellant Father focused on the issue as to whether the motions judge erred in law in shifting the burden of proof to the Appellant Father and issues with respect to the degeneration of his hearing. She relied on her factum for the remaining issues.

Standard of Appellate Review

[20] Counsel for the Appellant Father agreed with the standard of review contained in the factum of the Respondent Mother. In Hickey v. Hickey [3] the Supreme Court held that appellate courts must show greater deference to decisions in family cases involving custody because such cases are generally fact driven and discretionary in nature.

[21] The function of the appeal court is not to retry the case. The court may only interfere with a decision if there is an error in law, or if there is a palpable and overriding error in the findings of fact. The appellate court will not intervene if there is some evidence upon which the trial judge could have reached the factual conclusion. [4]

[22] The palpable and overriding error standard applies when reviewing factual findings even when those are based on a written record. Deference is owed to factual findings at first instance even when the entire record is documentary from a motion. [5]

[23] The decision as to whether there is a genuine issue requiring a trial is one of mixed fact and law that attracts the standard of palpable and overriding error.

Analysis

A. Error of Law

[24] The Appellant Father takes the position that the motion judge erred in law in putting the onus on him rather than on the Respondent Mother. To consider that, I turn to the test the the moving party must meet in a Motion to Change Final Order.

[25] In Gordon v. Goertz the Supreme Court articulated the three part test for material change in circumstances as follows: (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 order.

[26] At paragraph 22 of the decision the motions judge noted that the onus is on the moving party to show that there is no genuine issue requiring a trial and referred to Children’s Aid Society of Hamilton v. M.N. [6] Throughout her reasons for decision, there is no suggestion that she reversed the onus on the motion for summary judgment. She did refer to the burden on the moving party to provide evidence that a material change or changes in circumstances had occurred that justified a change in the underlying order. As she indicated in her detailed review of the evidence, the Appellant Father had failed on each of the many allegations of material changes to which she referred. It follows that the Respondent Mother had fulfilled her burden of showing that there was no genuine issue requiring a trial.

[27] As counsel for the Respondent Mother observed, this was not a submission that was included in the factum and no authorities were provided.

[28] The Appellant Father has not established any error of law by the motions judge.

B. Degeneration of Appellant Father’s hearing [7]

[29] Counsel for the Respondent Mother observed that there was no evidence for some of the submissions made by counsel for the Appellant Father such as the assertion that there had been a “complete shift in the interaction between dad and the children” and that “dad will have complete hearing loss and he will become ASL reliant”. I agree that those submissions are not supported by any evidence. They demonstrate what the motions judge referred to at paragraph 105 as his tendency to make “many broad, sweeping allegations but provides no evidence to support these statements whatsoever”.

[30] I observe as well that the motions judge addressed the two alleged material changes that arose from his hearing loss in two pages over paragraphs 46 to 55 and yet the subject occupied well over half of the submissions of his counsel on this appeal. Furthermore, as counsel for the Respondent Mother pointed out, the onus was on the Appellant father to set out the facts on which he relied before the motions judge and that is found in his Form 15A on page 4 at paragraph 7. She noted that there is no reference in his Motion To Change and his Form 15A as to how his hearing loss impacted parenting.

[31] In other words, it seems that the issues related to the Appellant Father’s hearing loss, which, as indicated in paragraph 11 above, were two of sixteen asserted material changes in circumstances before the motions judge, have increased in significance since the decision in November 2017 and have become of far greater importance in this appeal. The affidavit evidence filed in support of the appeal does not warrant any enhancement of the issue. Indeed, it serves to demonstrate that the ASL training which the Appellant Father wants to arrange for the children and which the Respondent Mother supports, can be done in the periods of time that the children are with the Appellant father. His refusal to acknowledge that he had access to captioning during the trial before Waldman J., notwithstanding the confirmation by the Supervisor, Court Operations at 47 Sheppard Avenue East that a captionist was available and used, demonstrates that he persists in making unfounded assertions with no basis in fact.

[32] In reply submissions, counsel emphasized paragraph 119 and Exhibit F of the Appellant Father’s affidavit sworn August 30, 2017. The affidavit raised some challenges as a parent with a hearing disability and the medical evidence at Exhibit F described his test results in 2014 and 2015. That evidence did not support any finding of fact and law that the Appellant Father’s hearing loss in September 2017 constituted a material change in circumstances. Contrary to the submission on behalf of the Appellant Father, there was no evidence that the “key change is the rate and extent of his hearing deterioration and the eventual loss of all hearing”. Nor was there evidence that would support a finding of fact and law that the Appellant father’s hearing loss materially changed the children’s needs or his ability to parent the children.

[33] The Appellant Father has not established a palpable and overriding error by the motions judge in relation to his hearing loss.

C. Other grounds of appeal

[34] As indicated at the outset, these children have been the subject of many hearings since their parents separated in 2011. That means that the Appellant Father made a submission in the summary judgment hearing that there was a material change in circumstances due to the children having grown older and being in school full time. At paragraphs 71-74, the motions judge addressed the issue by correctly articulating the applicable legal principles and applying those principles to the facts of this case.

[35] As the excerpts above from the factum demonstrate, the Appellant Father is challenging some findings of fact and many findings of fact and law. I need not deal with each of the grounds of appeal. In the end result, the Appellant Father has failed to identify any palpable and overriding errors. This appeal demonstrates that he simply does not agree with findings that have been made against him by a trial judge and then by a motions judge.

[36] As the moving party in the Motion to Change Final Order, he is obliged to provide evidence on which a motion judge could find on a balance of probabilities that there has been a material change in the circumstances of the children, as explained by the Supreme Court in Gordon v. Goertz. As the motions judge found, he had failed to provide evidence on which such findings could be made and accordingly, there was no genuine issue requiring a trial. His counsel’s submissions that the motions judge “did not appreciate” evidence or “misapprehended” evidence are simply a demonstration that he does not agree with the analysis and the result reached by the motions judge. As indicated in paragraph 17 above, in his factum, the Appellant Father asked that the decision dated November 27, 2017 be set aside and that the matter be returned to the OCJ for a trial to determine the best interests of the children. That indicates that he continues to think he can turn back the clock both on the trial decision and the decision of the motions judge and start over with a trial on the best interests of the children without regard to the necessity of establishing material changes in circumstances.

[37] On the basis of an extensive record, the motions judge made findings of fact and law to which this court will defer.

[38] The Appellant Father has been persistent and relentless in seeking increased parenting time and in challenging the order that the Respondent Mother have custody, which is what Waldman J. predicted and which Sager J. confirmed.

Costs

[39] Ms. Millgate had been retained after the appeal was launched. She had not been able to obtain the file of her predecessor who acted at the trial. She was not in a position to prepare a costs outline and therefor was unable to make submissions as to costs. It is always preferable to hear costs submissions at the conclusion of the appeal. However, costs have been controversial in prior proceedings and both parties should have the opportunity to make written submissions.

ORDER TO GO AS FOLLOWS:

[40] The appeal is dismissed.

[41] If by September 19, 2018 the parties have not agreed as to costs, then they shall make written submissions not exceeding 3 pages plus offer(s) to settle, if any, and costs outline on this schedule:

(a) the Applicant/Respondent by September 26; 2018

(b) the Respondent/Appellant by October 3, 2018;

(c) reply, if any, by by October 10, 2018.

Kiteley J. Date: September 5, 2018

[1] Goldman v. Kudelya, 2017 ONCA 300 [2] Gordon v. Goertz, 134 D.L.R. 321 [3] Hickey v. Hickey, [1991] 2 S.C.R. 518 [4] MacKereth v. Henderson, 2012 ONSC 5054 [5] Fendelet v. Dohey, 2007 ONCA 475 [6] Children’s Aid Society of Hamilton v. M.N., [2007] O.J. No. 1526 (SCJ) [7] At the hearing of the appeal, the Appellant Father had access to an ASL interpreter and a captionist.