Court File and Parties

COURT FILE NO.: 38795/16 DATE: 2018-11-06 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROBIN ALLAN MCLEAN BROWN, Applicant AND: JENNIFER LAURA KAGAN (BROWN), Respondent

BEFORE: Gray J.

COUNSEL: Robin Brown, Self-represented D. Todd Morganstein, Counsel for the Respondent

HEARD: September 21, 2018

Endorsement

[1] On January 24, 2018, I released Reasons for Judgment in this matrimonial matter. The Reasons are 221 paragraphs long. The trial took eleven days. I dealt with custody and access, equalization, child support and spousal support. The main issues were custody and access.

[2] I granted sole decision-making power over the parties’ daughter, Keira, to the respondent. My main reasons for doing so were that the applicant had a distinct tendency to lie, both before and during the litigation. Furthermore, he had demonstrated that he has an aggressive and somewhat bullying approach to the respondent and to third parties.

[3] The respondent had proposed a residential schedule that would result in the applicant having only two overnight visits with Keira every other weekend, and two mid-week visits. The Assessor, Dr. Sutton, had proposed a 50/50 arrangement, to be arrived at over a significant period of time, with a gradual increase in overnight visits.

[4] I did not agree that there should be a gradual increase in overnight visits. I ordered that they be accelerated, commencing February 9, 2018. As of that date, I ordered that Keira spend every other weekend with the applicant from Saturday at 9:00 a.m. to Sunday at 5:00 p.m.. Commencing April 20, 2018, I ordered that Keira be with the applicant on every other Friday after nursery school until the commencement of nursery school on Monday, and on Thursday of each week from the completion of nursery school until 7:00 p.m.. I ordered that commencing June 1, 2018, the weekend visits were to occur on three weekends in a row, with the fourth weekend to be spent with the respondent. There would be mid-week visits on Tuesday and Thursday of each week from the completion of nursery school until 7:00 p.m.. I ordered that Keira spend increasing amounts of time with the applicant during July and August, from 2018 until 2021 and thereafter.

[5] I ordered that Keira spend the entirety of March break with the applicant.

[6] In my reasons, I indicated that I was not willing to move to a straight 50/50 arrangement because of the distance the parties lived from each other. At the time of trial, the respondent lived with Keira in Thornhill and the applicant lived in Burlington. The Applicant had indicated that he was willing to move closer to where the respondent lives.

[7] Rather than simply regard a move by the applicant as a material change in circumstances, I decided that the best way to handle a possible move was for me to determine its effect, provided it were to occur within a reasonable period of time. Thus, I ordered that I would conduct a review of the time-sharing arrangements, and I conducted that review on September 21, 2018.

[8] Mr. Brown requested an order that he no longer pay child support. I ordered that his request be argued at the same time as the review.

[9] At the hearing of the review, counsel for the respondent requested an adjournment. I denied that request, as the matter had been scheduled for several months, and indeed had been briefly adjourned once in order to accommodate a religious holiday for Mr. Liquornik, one of the respondent’s counsel.

[10] Both parties filed affidavits on the review. Mr. Brown filed affidavits of his own. Dr. Kagan file affidavits of her own, as well as affidavits from her partner, Jeffrey Philip Viater, and Jackie Chenkin, the school director of Thornhill Nursery School and Kindergarten.

[11] Cross-examinations took place at the review on the affidavits of Mr. Brown, Dr. Kagan, and Ms. Chenkin. One witness was called via voce, namely Ellen Jun, who was Keira’s teacher between March and June, 2018.

[12] Ms. Chenkin, in her affidavit, essentially took the position that Keira, in June, 2018, came to school tired, and her disposition changed when separating from the person dropping her off. She seemed to be withdrawn at times and it took her longer to choose activities to engage in. She did not ask to go to the washroom, and checks were done to see if she needed a diaper change. She did not have signs of diarrhea. Her diaper had smears of feces at times. On cross-examination, she agreed that she does not teach classes. Keira no longer wears pull ups. She never saw the applicant drop Keira at school. She did not usually see Keira get picked up. She agreed Keira is an empathetic child.

[13] Mr. Brown, in one of his affidavits, pointed out that on some occasions where a teacher’s notes indicated Keira was tired, she had been dropped off by the respondent.

[14] Ms. Jun testified that Keira did very well on her report card. Keira was shy, and took a while to warm up to Ms. Jun. She was empathetic towards others, including other children. There were no outbursts of crying. She noted that Keira sometimes had a hard time separating herself from “Bubby”, her maternal grandmother, when she was dropped off. By contrast, she did not recall that Keira was “clingy” if Mr. Brown dropped her off. She felt Keira was highly developed in June, 2018, and she played well with others. Ms. Jun never contacted Mr. Brown regarding any concerns. On cross-examination, she said she would see Mr. Brown at pickups, and Dr. Kagan at drop-offs and pickups. She saw Mr. Brown on perhaps one occasion in the classroom, and Dr. Kagan many times.

[15] As was the case at trial, the parties disagree about practically everything. They disagree about whether Keira had been potty trained while at school and whether she sometimes had diarrhea or was constipated. They disagree about whether Keira sometimes appeared to be tired while at school, and if so which parent was at fault. They disagree about whether Keira wanted to have Skype communication with the respondent during visits with the applicant.

[16] Mr. Viater was not cross-examined on his affidavit. He paints a very unflattering picture of the applicant. He suggests that the applicant appears to be different when in court as compared to how he acts when outside court. He asserts that the applicant is aggressive and unreasonable. He asserts that Keira behaves badly towards the respondent after she returns from visits with the applicant.

[17] In one of his affidavits, the applicant denies the allegations of Mr. Viater. He was not cross-examined on his denial, nor were the specific allegations made by Mr. Viater put to him in cross-examination.

[18] Mr. Brown now lives relatively close to the respondent. While the respondent argues that he is still not close enough to make it feasible for him to have Keira in his care for 50 percent of the time because of the time it would take him to drive Keira to school, I disagree that that is a significant factor. Any actual driving time will not be material or have an adverse effect on Keira.

[19] Mr. Brown submits that I should order a 50/50 arrangement into effect immediately. He submits that the only reason I did not do so at the time of trial was because of the distance between the parties. That difficulty has now been overcome, and there is no reason not to make such an order now.

[20] Dr. Kagan submits that I should not only decline to give effect to Mr. Brown’s position, I should cut back the time Keira currently spends with Mr. Brown. Fundamentally, she submits that the additional time that Keira spends with Mr. Brown now is having a detrimental effect on Keira. Keira is tired when she goes to school after visits with Mr. Brown. She engages in inappropriate behaviour with Dr. Kagan and her partner after visits with Mr. Brown. Mr. Brown will not permit Keira to have Skype communication with Dr. Kagan when she is with Mr. Brown. And Mr. Brown still engages in the same bullying behaviour that he did before trial, and he still lies about many things. Dr. Kagan submits that she can place no reliance on anything Mr. Brown says.

[21] The narrow scope of a review has been emphasized by both the Supreme Court of Canada and by the Court of Appeal.

[22] In Leskun v. Leskun 2006 SCC 25, [2006] 1 S.C.R. 920, Binnie J. for the Supreme Court made it clear that review orders are to be limited. At para. 36 of his Reasons he stated “Review orders under s.15.2 have a useful but very limited role”, and at para. 39, he stated: “Insofar as possible, courts should resolve the controversies before them and make an order which is permanent subject only to change under s.17 on proof of a change of circumstances. If the s. 15.2 court considers it essential (as here) to identify an issue for further review, the issue should be tightly delimited in the s.15.2 order.”

[23] This approach was re-emphasized in the Court of Appeal’s decision in Fisher v. Fisher (2008), 2008 ONCA 11, 88 O.R. (3d) 241(C.A.). At para. 70 of her Reasons, Lang J.A. stated: Review orders in effect turn an initial order into a long-term interim order made after trial. Accordingly, they should be the exception, not the norm. They are appropriate when a specified uncertainty about a party’s circumstances at the time of trial will become certain within an identifiable timeframe. When one is granted, it should include specifics regarding the issue about which there is uncertainty and when and how the trial judge anticipates that uncertainty will be resolved.”

[24] It seems clear from these cases that in general, a review order should be used only to determine the effect of a narrow revised circumstance that is anticipated to occur subsequent to the issuance of a final order. It is not intended to reopen the order for all purposes, but rather to resolve the defined piece of uncertainty that existed at the time the original order was issued.

[25] In my view, this principle may be expanded somewhat in the case of orders that affect children, recognizing that the welfare of children is always paramount. Accordingly, even though the only uncertainty that existed at the time of my original order was where the applicant would live, and the effect that that may have on the feasibility of a 50/50 arrangement, I do not think I should shut my eyes to other factors that may affect the welfare of the child.

[26] In this case, there are some features that suggest that the order I made should not be varied significantly, at least not now.

[27] I noted in my original reasons that the applicant has a distinct propensity for lying, and that he has a somewhat bullying approach to the respondent and others. It would appear that that is still the case, although, as I noted earlier, Mr. Viater was not cross-examined on these issues, and Mr. Brown was not extensively cross-examined even though he denies Mr. Viater’s allegations.

[28] I am not convinced that these features should result in any reduction in the time Keira spends with her father. There is sufficient concern, however, that the court should be cautious before expanding the time she spends with her father.

[29] Some of the concern can be overcome by a slight variation in my order, and by more reasonable conduct by both parties.

[30] There is no compelling evidence that Keira has been adversely affected by increased time with Mr. Brown. The evidence from the school indicates that Keira is doing well, and if she is tired it is entirely unclear as to which party, if either, is at fault. It is also noteworthy that Keira has been spending considerable amounts of time with her father for the last two years without significant complaint, and it seems suspicious that issues seem to have arisen shortly before the review was to occur.

[31] I do not accept Mr. Brown’s explanation that Keira does not want Skype time with her mother. Mr. Brown is an adult, and it is up to him to arrange Skype time, since it is in Keira’s best interests that it occur.

[32] Thus, I order that Mr. Brown arrange for one Skype communication between Keira and the respondent on each day of each visit with the applicant, and the respondent has not already had Keira in her care, unless the respondent advises him, in writing, that the circumstances will not permit Skype communication. I also order that the reverse occur – that is, the respondent will arrange one Skype communication with the applicant on each day that Keira is with the respondent, and the applicant has not already had Keira in his care, unless the applicant advises the respondent, in writing, that the circumstances will not permit Skype communication.

[33] The respondent complains that Keira behaves inappropriately on some occasions and says inappropriate things to the respondent after she has been visiting with the applicant. The applicant professes surprise at this, and asserts that he has done nothing that would cause Keira to behave this way. Indeed, he says he has always spoken positively to Keira about the respondent. In written communications with the respondent, the applicant offered to have both parties jointly discuss this issue with Keira, but the respondent declined, taking the position that she would only do so in the presence of a mediator.

[34] In my view, the respondent’s position is unfortunate. I see no particular downside to a joint discussion between Keira and her parents, and I think it could be productive. I am not prepared to make an order in this respect, but I hope the respondent will reconsider.

[35] The respondent also submitted that a further assessment, pursuant to s.30 of the Children’s Law Reform Act, should be ordered. I decline to make such an order. Assessments of that sort are intrusive and expensive. There has already been one assessment and it was very thorough.

[36] For the foregoing reasons, I order that there be no changes to my order at this time, including child support, except for the specific changes I have ordered in this endorsement. Even if Keira spends 40 per cent of her time with the applicant, I think Keira’s best interests will be served if the applicant continues to pay the current level of child support. Any further requested changes must come about only after a motion to change.

[37] I will invite brief written submissions as to costs, not to exceed three pages together with a costs outline or a bill of costs. Mr. Brown will have five days, and counsel for Dr. Kagan will have five days to respond. Mr. Brown will have three days to reply.

Gray J. Date: November 6, 2018