Court File and Parties

BARRIE COURT FILE NO.: FC-12-064 DATE: 20181126 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: C.M. Applicant – and – M.P. Respondent

Counsel: Marta A. Ross, Counsel for the Applicant Natasha Razack, Counsel for the Respondent

HEARD: November 21, 2018

RULING ON MOTION

MACPHERSON J.:

Introduction

[1] The Respondent father brings a motion for summary judgement on his request for an order that the children D.P. (17), Cl.P. (15), T.P. (13), and Cr.P. (7) commence a week about parenting arrangement.

[2] For the reasons that follow, commencing January 4, 2019, the children, D.P., Cl.P. and T.P. shall have parenting time with each parent on alternate weeks. The parenting time that is in the best interests of Cr.P. a triable issue and shall proceed to trial.

Background

[3] The parties were married on September 1, 2001 and separated on June 3, 2011.

[4] There are four children of the marriage: D.P. born […], 2001, Cl.P. born […], 2003, T.P. born […], 2005, and Cr.P. born […], 2011.

[5] The parents are a relatively short distance from each other geographically.

[6] On July 26, 2013 Justice Graham made a final order, on the consent of the parties, formalizing the parenting arrangement. Pursuant to that order, the parents have joint custody. Although the children live primarily with their mother, they have parenting time with their father on alternating weekends from Friday through Monday.

[7] In July, 2017 the mother filed a motion to change requesting a variation in child support. The father, in response, requested that his parenting time with the children be adjusted such that he would have equal parenting time.

[8] Over the summer of 2018, the father had parenting time with the four children every second week from Friday until Tuesday.

[9] The OCL filed a Voice of the Child Report dated September 10, 2018. In it the three oldest children, D.P., Cl.P. and T.P., were consistent in their views and preferences. Specifically, they would like to have equal parenting time with both parents. Cr.P. offered the same views and preferences although he was more hesitant in his desire to have a week about parenting schedule than his three sisters.

[10] The mother opposes the father’s request that the three older children commence a week about arrangement. Her opposition centers on three concerns: first, she states that the children spend a lot of time with the paternal grandparents during the father’s parenting time; second, she states that the father has missed access visits in the past; and third, she states that the father’s work schedule precludes a week about arrangement such that the children will not get to their activities.

[11] In terms of Cr.P., the youngest child, in addition to the three concerns just mentioned, the mother states that Cr.P. has ADD and that change is difficult for him. Further his views and preferences were ambivalent relative to the views and preferences of his sisters.

[12] The mother says the children’s views and preferences as outlined in the OCL report are not accurate. She offers no independent evidence supporting this view.

[13] The father disagrees with the suggestion that the paternal grandparents are left in a caregiving role and disputes that his parenting time has been inconsistent. He states that his work schedule is flexible enough to accommodate a week about schedule.

ISSUES

[14] Has there been a material change in circumstances since the order of Justice Graham dated July 26, 2013?

[15] Has the father established, on balance of probabilities, that there is no genuine issue, of material fact, for trial with respect to his proposed parenting arrangement?

LAW

[16] Pursuant to section 17 of the Divorce Act, R.S.C. 1985 c.3 the father must establish that there has been a change in the condition, means, needs, or other circumstances of the children which materially affects the children.

[17] Orders with respect to custody and access may be varied pursuant to section 29 of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 with the best interests considerations that are to be examined under section 24 (2) of the CLRA.

[18] The rule governing motions for summary judgment is Rule 16 of the Family Law Rules, O. Reg 114/199. It provides that a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defense presented in the case.

[19] Pursuant to Rule 16 (4) of the Family Law Rules, the party making the motion shall serve an affidavit or other evidence that sets out specific facts showing there is no genuine issue requiring a trial.

[20] Pursuant to Rule 16 (6) of the Family Law Rules, the court is mandated to make a final order on a motion for summary judgment where there is no genuine issue requiring a trial.

[21] Pursuant to Rule 16 (6.1) of the Family Law Rules, in determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial: 1) Weighing the evidence; 2) Evaluating the credibility of a deponent; and 3) Drawing any reasonable inference from the evidence.

[22] On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue regarding trial based only on the evidence before her, without using the new fact-finding powers. If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). [1]

[23] The test for granting summary judgment is met when the moving party satisfies the court that there is no genuine issue of material fact that requires a trial for its resolution. Not every disputed fact or question of credibility gives rise to a genuine issue for trial; the fact must be material. [2]

[24] No genuine issue for trial exists where there is no realistic possibility of an outcome other than that as sought by the applicant. [3]

[25] The responding party, faced with a prima facie case for summary judgment, must provide evidence of specific facts showing that there is a genuine issue for trial. Mere allegations or blanket denials, or self-serving affidavits not supported by specific facts showing that there is a genuine issue for trial must be insufficient to defeat a claim for summary judgment. [4]

[26] The court must ensure that the best interests of the child are adequately addressed on the available evidence. Caution is called for but if the evidence does not raise a triable issue as to where the best interests of the child lie, those best interests themselves call for a resolution without the delay associated with a trial and the resulting prolongation of the state of uncertainty about the child's future. [5]

[27] The court may then dismiss the motion, rule that there are only certain issues that require a full hearing or determine that there are no triable issues regarding the entire application. [6]

[28] As to what constitutes "no genuine issue for trial'', the Ontario Court of Appeal has equated that case with "no chance of success" and "plain and obvious that the action cannot succeed". [7]

ANALYSIS

Material Change in Circumstances

[29] At the time of the order of Justice Graham, the children were considerably younger. Their views and preferences were not obtained as a result of their age.

[30] All four children now support a change in parenting time from the current arrangement to one where they will have parenting time with each parent equally. As stated, the three older children were clear in their views and preferences which have been consistent over time. Their views and preferences were obtained through a Voice of the Child Report and are independent.

[31] The children’s maturation over five years, and the ability to now ascertain their views and preferences which support a significant change in the parenting arrangement, constitute a material change in circumstances.

Is there a Triable Issue?

[32] There is no doubt that both parents can provide the necessaries of life for the children. Indeed, based on the evidence before me, I conclude that there really are no significant concerns with the parenting skills of either parent although both parents have different parenting styles. The children love their parents and feel comfortable with both parents. The OCL found no issues with the parenting of either parent.

[33] D.P. is 17 years old. She has enjoyed parenting time with her father every second weekend for the past five years. She now wants to extend that parenting time to a week about basis. She is old enough to withdraw from parental control. She will be 18 in […] of 2019 and will be over the age of majority. Her views and preferences are independent and neutral. Both parents are able to provide greater than adequate care to the children. Based on the consistent views and preferences expressed by D.P., the strength of her views, and her age, I conclude there is no issue requiring a trial of the proposed parenting arrangement.

[34] Cl.P. is 15 years old. She has enjoyed parenting time with her father every second weekend for the past five years. She now wants to extend that parenting time to a week about basis. Her views and preferences are independent and neutral. Both parents are able to provide greater than adequate care to the children. Based on the consistent views and preferences expressed by Cl.P., the strength of her views, and her age, I conclude there is no issue requiring a trial of the proposed parenting arrangement.

[35] T.P. is 13 years old. She has enjoyed parenting time with her father every second weekend for the past five years. She now wants to extend that parenting time to a week about basis. Her views and preferences are independent and neutral. Both parents are able to provide more than adequate care to the children. However, T.P. is 13 and her views and preferences are less compelling than those of her older sisters because of her age. Her age, combined with the concern expressed by the mother that the father will not be able to get the children to their extra-curricular activities, lead me to believe there may be a triable issue with respect to the quantity of parenting time T.P. will spend with her father.

[36] However, T.P. has been consistent in her views and preferences, she has always exercised access with her sisters, and her two sisters will commence a week about parenting arrangement in January, 2019. Further, during submissions, the mother indicated that she thought it was best for the three girls to exercise access together. I agree. I conclude, therefore, that if there is an issue requiring trial of the proposed parenting arrangement with respect to T.P., I can determine, from the evidence before me, that it is in the best interests of T.P. to also exercise access on a week about basis with her sisters. I am very concerned that to do otherwise would not be in T.P.’s best interests as it may impact the closeness of the relationship that T.P. currently enjoys with her sisters.

[37] Both parties indicate that it is desirous that T.P. continue to exercise parenting time with her sisters. That is consistent with her views and preferences. A week about basis will give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with their best interests. Based on all of the evidences before me I am satisfied that I have sufficient information to make a determination of the parenting arrangement in a summary way that is both just and will reduce the legal costs to both parties.

[38] Cr.P. is 7 years old. He has enjoyed parenting time with his father every second weekend for the past five years. He has been ambivalent about extending that parenting time to a week about basis. Perhaps the age difference between himself and his sisters or the difference in gender results in Cr.P. enjoying different activities and interests and that might explain part of his ambivalence. Regardless, he is 7 and his views and preferences deserve considerably less weight than those of his older sisters. Further, Cr.P. has ADD and structure and consistency are important considerations. His age and his ADD diagnosis, combined with the concern expressed by the mother that the father will not be able to get the children to their extra-curricular activities, lead me to believe there may be a triable issue with respect to the parenting time that Cr.P. should have with his father. I cannot make a determination as to what parenting time is in the best interests of Cr.P. based on the evidence before me. That issue will require a trial of the proposed parenting arrangement.

ORDER

[39] Commencing January 4, 2019, the children, D.P., Cl.P. and T.P. shall have parenting time with each parent on an alternating weekly basis.

[40] The parenting time that Cr.P. will enjoy with each parent is a triable issue and shall proceed to trial.

[41] If the parties cannot agree on the issue of costs, I shall consider the request for costs. Any party requesting costs shall serve on the other parties and file in the Continuing Record written submissions, limited to two pages, exclusive of the Bill of Costs and Offers to Settle within 10 days of the date of this decision. The parties in receipt of a request for a costs order against them shall serve and file in the Continuing Record written submissions, limited to two pages, exclusive of the Bill of Costs and Offers to Settle within 10 days thereafter.

G.A. MacPherson J.

Released: November 26, 2018

Footnotes

[1] Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para 66. Children's Aid Society of Ottawa v. S.K., supra at para. 72.

[2] Children's Aid Society of Toronto v. S.A. and O.E.A., supra at para. 26. Children's Aid Society of Toronto v. K.T., [2000] O.J. No. 4736 (Ont. C.J.) at para. 12.

[3] Children's Aid Society of the County of Simcoe v. C.S., [2001] O.J. No. 4915 (Ont. S.C.J.) at para 5.

[4] Rule 16(4.1) of the Family Law Rules, Ont. Reg. 114/99. Catholic Children's Aid Society of Toronto v G.O., 2014 ONCJ 523 at para. 75. Children's Aid Society of Toronto v. K.T., [2000] O.J. No. 4736 (Ont. C.J.) at para. 10.

[5] Catholic Children's Aid Society of Toronto v G.O., supra at para. 74. R.A. v. Jewish Family and Child Service, supra at para. 20.

[6] Children's Aid Society of the Regional Municipality of Waterloo v. R.S., supra at para. 23.

[7] J.C.J.-R. v. Children's Aid Society of Oxford County, [2003] O.J. No. 2208 at para. 8.