Superior Court of Justice – Ontario

Court File No.: FS-18-92192-00 Date: 2018 11 02

Re: Michael Fearon, Applicant And: Margaret Tzeng Fearon, Respondent

Before: Bloom, J.

Counsel: William H. Abbott, for the Moving Party, Applicant Anita Kain and Heather Cassells, for the Responding Party, Respondent

Heard: October 23, 2018

E N D O R S E M E N T

I. INTRODUCTION

[1] The Applicant moves for an order that the two children of the marriage be placed in his care forthwith for the next 90 days and that this custodial arrangement be reviewed in 75 days; that during the time that the children are in the Applicant’s care that they have no contact with the Respondent except as directed by the therapist treating the children; and that the Peel Regional Police or any other police force having lawful authority enforce the order that the children are to remain with the Applicant for the next 90 days.

II. PROCEDURAL AND EVIDENTIARY CONTEXT

[2] The children whose care is the subject of the motion at bar are Mckenzie Tzeng-Fearon, born November 12, 2003, and Addison Tzeng-Fearon, born March 23, 2006.

[3] The parties married on January 5, 2002. The Applicant takes the position that they separated on September 26, 2017, while the Respondent takes the position that the date of separation was November 9, 2017.

[4] The Application was issued on May 10, 2018 and includes claims for divorce, as well as custody and access.

[5] The Respondent remained in the matrimonial home in Mississauga following the separation. The Applicant has vacated the matrimonial home; he recently rented an apartment not far from the children’s school and the matrimonial home where the children live with the Respondent. The Applicant primarily works from home.

[6] The Respondent is a high school teacher.

[7] On September 17, 2018 Justice Daley, based on the consent of the parties, made an order on a temporary without prejudice basis; it gave shared parenting rights to the parties.

[8] The Applicant contends that the Respondent has alienated the children from him. He has adduced in evidence video recordings taken by a camera in the matrimonial home; both the recordings, themselves, and descriptions of events recorded are in evidence. The Respondent accepts the admissibility of this evidence, but argues that it should be given little weight because it shows incidents without appropriate context.

[9] The Respondent’s counsel in oral argument did, however, concede that the children’s conduct was problematic. The Respondent in her affidavit evidence, while denying engaging in parental alienation, admits that there are obvious difficulties in the Applicant’s relationship with the children.

[10] The Applicant relies on his own affidavit evidence, and also on three reports from Andrea Barclay, a counsellor who provided family therapy to the parties and children.

[11] Ms. Barclay’s reports are dated August 27, 2018, September 11, 2018, and October 5, 2018.

[12] The Respondent does not concede the admissibility of the reports, and takes issue with the weight to be accorded to them.

III. GOVERNING PRINCIPLES

[13] The parties disagree on the test to be applied in respect of the variation sought to the order of Justice Daley.

[14] The Respondent contends that the Applicant is required to demonstrate a material change in circumstances, as a precondition to a variation.

[15] The Applicant argues that a different test applies, because the order in question was made on an interim consensual and without prejudice basis. He relies on the following passage from the judgement of Justice Price in Ceho v. Ceho, 2015 ONSC 5285 at paras. 65 to 68:

65 The criteria set out in section 29 of the Children's Law Reform Act have been unchanged since their enactment in 1982. Section 29 requires a finding that there has been a material change in the circumstances of such nature and consequence that it affects or is likely to affect the best interests of the child. It provides:

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. 16

66 The legislation highlights the importance of the children's welfare, a factor that, pursuant to subsection 24(1) of the Act, is paramount in determinations of custody and access. Subsection 24(2) requires the court to consider "all the needs and circumstances of the child" and lists a number of factors that the court must weigh as part of that consideration.

67 For the reasons that follow, I find that section 29 does not apply to the facts of the present case. Section 29 implicitly refers to orders that have disposed of motions or applications. The order of Justice Mossip did not do so. Rather, it established the temporary terms that were to prevail until the motions were heard.

68 An order that disposes of a motion or application is based on either: a) The court's adjudication of the issue of what custody or access order would be in the children's best interests; or b) The parties' consent as to what would be in the children's best interests. In either case, it is reasonable to require the party who is applying to change the status quo to demonstrate that there has been a material change of circumstances since the order was made, which affects the welfare of the children. In the present case, there was no adjudication as to what custody or access order would be in the children's best interests, and the parties agreed that the order would be a temporary one that would be "without prejudice" to either party's position. Requiring a party to establish a material change of circumstances would be contrary to that agreement.

[16] Without deciding the point, I accept for the purposes of this motion the Applicant’s position that he need not establish a material change in circumstances as precondition to a variation in the order of Justice Daley. I will address the matter on the basis that I must decide whether the Applicant has demonstrated that the order he seeks is in the best interests of the children.

IV. APPLICATION OF GOVERNING PRINCIPLES TO THE CASE AT BAR

[17] The Applicant has not satisfied me on the evidence adduced that the variation he seeks to the order of Justice Daley is in the best interests of the children. I will set out the reasons for my conclusion.

[18] The remedy that the Applicant seeks would have a very powerful impact on the children. It would have to be justified by clear evidence; in my view that evidence would normally include the evidence of one or more experts, the admissibility of whose evidence was first admitted by the parties or proven in accordance with the procedures and principles applicable to expert evidence.

[19] Ms. Barclay’s qualification as an expert is contested by the Respondent explicitly in her factum. Moreover, there has been no determination of the admissibility of Ms. Barclay’s evidence in accordance with applicable procedures and principles. The Respondent has not had an opportunity to cross-examine her; that cross-examination would have formed part of a voir dire to determine the admissibility of her evidence. Further, the Respondent’s cross-examination of Ms. Barclay on the issues before the Court on the motion at bar, would also have been of assistance in determining the weight to accord to Ms. Barclay’s evidence on those issues.

[20] On the evidence before me, I am not satisfied that the order sought by the Applicant is in the best interests of the children. I, therefore, dismiss the motion at bar.

V. COSTS

[21] I will receive costs submissions in writing. The Respondent is to serve and file her submissions within 14 days from release of this endorsement. The Applicant is to serve and file his submissions within 14 days from service of the Respondent’s submissions. There shall be no reply.

Bloom, J. DATE: November 2, 2018