Court File and Parties
BARRIE COURT FILE NO.: FC-15-150-02 DATE: 20181128 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Douglas Gebron Coppin, Applicant -and- Nina Manuela Shea Arboine, Respondent
BEFORE: The Honourable Madam Justice M. E. Vallee
COUNSEL: Douglas Gebron Coppin, Applicant, Self-Represented Nina Manuela Shea Arboine, Respondent, Self-Represented
HEARD: November 23 and 26, 2018
REASONS FOR DECISION ON MOTION TO CHANGE
Introduction
[1] The applicant father, Mr. Coppin, brings a motion to change the Order of Sutherland J., dated September 14, 2015, (made pursuant to minutes of settlement) regarding parenting time. This is not the last operative order with respect to parenting time. Quinlan J. made an Order, dated July 27, 2016, (again pursuant to minutes of settlement) which expanded Mr. Coppin’s parenting time from the schedule set out in Sutherland J.’s Order. Mr. Coppin ought to have brought this motion to change Quinlan J.’s Order; however, the respondent mother, Ms. Arboine, did not raise an objection to this. I will treat this motion to change as though it relates to the Order of Quinlan J. to give effect to the primary objective of the Family Law Rules, O Reg 114/99, which includes saving expense and time.
[2] Mr. Coppin currently has parenting time with Ezra on alternating weekends from Friday at 6:00 pm to Sunday at 6:00 pm. He is seeking to change that to week-about.
[3] Ms. Arboine is opposed to this change. She submits that there is no material change in circumstances and that Ezra is doing well under the current parenting schedule. Both parties live relatively close to each other. Ezra just started junior kindergarten at a school very close to Ms. Arboine’s house.
Issues
[4] Has there been a material change in circumstances that has altered Ezra’s needs or the ability of his parents to meet those needs in a fundamental way?
[5] If there has been a material change in circumstances, what parenting schedule is in the best interests of Ezra?
Background and History of Proceedings
[6] Mr. Coppin and Ms. Arboine never cohabited. In fact it appears that they did not have a relationship. They had several casual encounters. Mr. Coppin was not present for the first six months of Ezra’s life because he was incarcerated for a crime relating to dishonesty.
[7] Gilmore J. made the first Order relating to Ezra, dated March 23, 2015, pursuant to minutes of settlement. At that time, Ezra was seven months old. Mr. Coppin’s parenting time was five times per week for two hours each time. Sutherland J. made the next Order when Ezra was 11 months old. It set out parenting time on alternating weekends from Saturday at 6 pm to Sunday at noon. Quinlan J. made the subsequent order when Ezra was not quite two years old. It set out parenting time on alternating weekends from Friday at 6 pm to Sunday at 6 pm plus a mid-week visit of unspecified duration requiring Mr. Coppin to return Ezra by 6 pm. The midweek visit was to continue until Ezra began school.
Applicable Law
[8] Section 29 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, which applies to varying orders, states:
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.
[9] The test for variation is set out in Gordon v. Goertz, [1996] 2 S.C.R. 27. Although this decision concerned a mobility case and a variation of the Divorce Act, R.S.C., 1985, c.3, the test is applicable to a variation under the Children’s Law Reform Act.
[10] According to Gordon, para 10, the first question to be asked on a motion to change, is whether there has been a material change in circumstances of the child subsequent to the last order. In paras 12 and 13, the court stated:
What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), 35 R.F.L. (3d) 169 (B.C.S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.). Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. “What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place”: J. G. McLeod, Child Custody Law and Practice (1992), at p. 11-5.
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.
[11] According to Persaud v. Garcia-Persaud, [2009] O.J. No. 5940, 2009 ONCA 782 (Ont. C.A.), a finding of a material change in circumstances since the previous order was made is required for the court to have jurisdiction to vary a custody and access order. If the applicant fails to meet this threshold requirement, the inquiry must end.
[12] If the applicant can demonstrate a material change in circumstances, the court must then consider the merits and make an order that is in the best interests of the child. (See Gordon, para 9)
[13] In Wiegers v. Gray, 2008 SKCA 7, at para 25, the court stated:
It is my view that mere passage of time and increased maturity of the child does not, in and of itself, constitute a material change of circumstances as required by s. 17(5) of the Divorce Act and the case law that has interpreted that section. Were it otherwise, there would be an automatic right to seek variation of custody orders on a regular basis every few years. This is clearly contrary to the established law. While the reviewing judge may, of course, take into account that a child’s needs may change as he or she matures, it is necessary to go further to determine whether and to what extent those changes have, in the case before the reviewing judge, made the original order inadequate.
[14] In Stirling v. Blake, 2013 ONSC 2013, Quinn J. noted in para 117 that “something must have occurred since the prior order to trigger the operation of the section” [29]. Unless there is recent discovery of evidence that pre-dated the order, the order will be taken to be correct and reasonable. In this matter, the two children were eight and ten years old when the last order was made. At the time of the hearing, they were 12 and 13 years old. The Office of the Children’s Lawyer represented the children and advised the court that they wanted a voice in the matter and more flexibility in their time with their father. They did not want to continue with overnight visits. Quinn J. determined that the ages of the children, together with credible evidence of their wishes, constituted a material change in circumstances.
Has there been a material change in circumstances that has altered Ezra’s needs or the ability of his parents to meet those needs in a fundamental way?
Mr. Coppin’s Evidence
[15] Mr. Coppin testified that Ezra is now four years old. He started school in September. He was only one year old when Sutherland J.’s first Order was made. Because he was a young child who was nursing at the time, equally shared parenting was not considered to be appropriate. Now, Ezra is older. This fact constitutes the material change in circumstances. Ezra has a new stepbrother. It is not fair for Ezra to see that his father is spending more time with his step-brother. Ezra is often sick. Mr. Coppin stated that he does not have the opportunity to comfort him. The time that he has with Ezra is very limited. Having equally shared parenting is appropriate. Ezra should become acquainted with his extended family on Mr. Coppin’s side. Most of them live in the Barrie area. He cannot come to know them well when Mr. Coppin’s parenting time is only every second weekend. Mr. Coppin stated that Ms. Arboine does not always keep him informed of significant events such as Ezra’s appointments and events that might take place at school. Ms. Arboine is not flexible about parenting time. She rigidly adheres to the court ordered schedule.
[16] Mr. Coppin testified that he has always wanted more parenting time with Ezra. The court has previously told him that he would have to return to court to obtain more parenting time. He has gone through that procedure. Quinlan J.’s order expanded his weekend time. He was also granted a midweek visit up to September 2018 when Ezra would start school. Now that Ezra has started school, Mr. Coppin’s parenting time has been reduced because he does not have the midweek visit. Mr. Coppin stated that he is not trying to take Ezra away from Ms. Arboine. He simply wants what Ms. Arboine has regarding parenting time. He believes that he should have an equal parenting role. He stated that there are certain things that only a man can teach his son [1]. He has always been “fighting for Ezra”. Mr. Coppin stated, “If I don’t fight for him, I’m teaching him to give up.” [2]
Lindsay Maier’s Evidence
[17] Lindsay Maier is Mr. Coppin’s girlfriend. They have a young child together. She described Ezra as a happy loving child. She stated that when Ezra began his overnights at their home in 2015, Ms. Arboine provided a medication, Motrin, in Ezra’s overnight bag with a note that it was to help him fall asleep. She and Mr. Coppin did not give it to Ezra because they did not know what it was for.
[18] She and Mr. Coppin took Ezra on a trip to Mexico. On the day before they returned him to Ms. Arboine, she noticed some marks on Ezra’s arm. She thought Ezra might have impetigo [3]. She stated that she called Ms. Arboine about this. When Ezra came two weeks later for his visit, he had impetigo all over his body. No antibiotics were provided.
[19] On cross-examination, Ms. Meyer conceded that she did not have a medical background. She did not know that Ezra had a dose of antibiotics as well as a topical cream. She also did not know that Ezra had a follow-up appointment with the nurse practitioner.
Dawn Hutter’s Evidence
[20] Dawn Hutter is Mr. Coppin’s sister-in-law. She stated that before Mr. Coppin was incarcerated, he asked her to look after Ms. Arboine, for example to provide her with anything that she needed while he was incarcerated. Ms. Hutter stated that she and her husband went to Ms. Arboine’s house to give her their contact information.
[21] Ms. Hutter stated that initially Mr. Coppin had supervised visits. She was a supervisor. She expressed concern that Motrin had been provided for Ezra.
[22] On cross-examination, Ms. Hutter stated that she did not witness the conversation between Ms. Arboine and Mr. Coppin at her residence regarding her reason for giving Motrin to Ezra. Ms. Hutter expressed some concern about Ezra’s visit to the hospital when there was suspicion that he had suffered a seizure. She agreed that she did not see the events leading up to the incident. She was not present during conversations with the emergency room doctor nor the pediatrician. She was not aware of any follow-up appointments.
Ernest Coppin’s Evidence
[23] Ernest Coppin is Mr. Coppin’s father. He stated that he had provided some of the supervision for Mr. Coppin’s early visits with Ezra. He described an occasion when he appeared at Ms. Arboine’s house and asked to take Ezra to the park with his other grandchildren. He acknowledged that this day was not Mr. Coppin’s parenting time. In fact, it was Ms. Arboine’s parenting time. He was refused.
Ms. Arboine’s Evidence
[24] Ms. Arboine states that there has been no material change in Ezra’s circumstances since Quinlan J.’s Order was made. She has accommodated Mr. Coppin when he wanted additional time. He asked for an additional day on March break which she readily agreed to. He wanted to keep Ezra longer on his birthday which she also readily agreed to. Ms. Arboine stated that after Ezra started junior kindergarten, she suggested that Mr. Coppin could pick him up at 4 pm on Fridays instead of the usual 6 pm. Any time Mr. Coppin wanted to take Ezra out of the country, she agreed in contrast to the time when she wanted to take Ezra to Mexico. Mr. Coppin would not agree so she had to obtain a court order.
[25] Ms. Arboine stated that she was supportive of Mr. Coppin’s family seeing Ezra. Ms. Hutter had said that she wanted to see him and have her children spend time with him. She told Dawn Hutter that she could call when she wanted to see Ezra. Ms. Arboine stated that she just wanted some notice. Ms. Hutter has done this once.
[26] Ms. Arboine stated that she is a registered nurse and works at Royal Victoria Hospital. Generally, she works three or four night shifts per week from 7 pm to 7 am. She comes home from work and then takes Ezra to school. She sleeps during the day and then picks up Ezra at approximately 3 pm and brings him home. They relax and discuss Ezra’s day. Ezra has his dinner. Then Ms. Arboine gets him ready for bed. When she is working night shifts, Ms. Arboine’s mother, Mrs. Patricia Arboine, looks after Ezra. Ms. Arboine stated that her mother puts Ezra to bed around 7:30 p.m. after she has left for work. Essentially, Mrs. Arboine cares for Ezra while he is sleeping. In the mornings, she makes his breakfast and his school lunch. Ms. Arboine stated that she has arranged her schedule to work predominantly night shifts so that she can take Ezra to school in the morning, pick him up and then spend the rest of the day with him. She stated that she does keep Mr. Coppin informed with respect Ezra’s events.
[27] Ms. Arboine stated that Ezra takes swimming lessons at a recreation centre near her house and his school. His swimming lesson is on Wednesdays from 5:30 pm to 6 pm. She arranges her work schedule so that she can take him to his lessons. On cross-examination, Mr. Coppin suggested to Ms. Arboine that she had never advised him of Ezra swimming lessons. Ms. Arboine stated that she had sent him an email about it. The email dated August 27, 2018 is located in the trial record, tab 8 page 5.
[28] Ms. Arboine described Ezra as happy, loving little boy. She stated that ever since she found out she was pregnant, she has looked out for his best interests. Her priority has been to provide him with a loving, caring environment. Unfortunately, she has had some difficulties in communicating with Mr. Coppin. She stated that she tells him things multiple times but he forgets them.
Fairen Deugo-Balogh’s Evidence
[29] Ms. Deugo-Balogh, is a registered nurse and one of Ms. Arboine’s work colleagues. They are also good personal friends. She stated that Ezra is a happy healthy four year old who has a loving relationship with his mother. He is very polite. He is always well taken care of.
[30] Ms. Deugo-Balogh happened to be working at the hospital when Ezra was brought in for his suspected seizure. She came down to the emergency department. She stated that Ms. Arboine was upset because Ezra was sick but she handled the situation very well. She wanted information from the doctors. Ms. Deugo-Balogh stated that she was aware that Ms. Arboine had informed Mr. Coppin about the situation.
[31] Ms. Deugo-Balogh recalled one of Mr. Coppin’s early visits with Ezra which took place at the library. She stated that Mr. Coppin had a good interaction with Ezra and a pleasant time.
[32] Ms. Deugo-Balogh stated that since the end of September, she had been copied on some of Ms. Arboine’s emails to Mr. Coppin. The purpose of this was to include her as an observer because Ms. Arboine was having difficulty communicating with Mr. Coppin. Mr. Coppin had also copied some of his family members regarding his emails to Ms. Arboine. He was welcome to do this because it would facilitate better communication and therefore be better for Ezra. She described the tone of Ms. Arboine’s messages as exchanging pleasantries and communicating facts about pickup times and activities. She described the tone of Mr. Coppin’s emails as not including many pleasantries, just communicating the facts [4].
Patricia Arboine’s Evidence
[33] Patricia Arboine is Ms. Arboine’s mother. I will refer to her as Mrs. Arboine. She cares for Ezra when Ms. Arboine is at work. This includes putting them to bed, waking him up in the morning and preparing his breakfast and school lunch. She described the interactions between Ms. Arboine and Ezra as relaxed, loving, trusting and spontaneous. If Ezra misbehaves, Ms. Arboine corrects him nicely and explains the consequences. They play together and go out for activities. They have a loving and fun relationship. She stated that Ms. Arboine had never denied Mr. Coppin’s requests to take Ezra out of the country. She stated that if Mr. Coppin wants additional time with Ezra, such as a later drop off time, Ms. Arboine has accommodated this.
[34] Mrs. Arboine stated that on one occasion, Mr. Ernest Coppin came to the door when Ms. Arboine was out and wanted to take Ezra to play at the park when it was not Mr. Coppin’s access time. She refused this because it had not been arranged through Ms. Arboine. She did not have Ms. Arboine’s permission to provide Ezra to anyone that day.
Analysis
[35] In Brown v. Lloyd, 2014 ONSC 300, the court considered a situation where the child had been five years old at the time of the last order, which was made on consent. When the motion to change was brought, the child was nine years old. In addition to that change, the child’s mother had remarried and had two other children. The family unit had moved to a different house. The child was diagnosed with a learning disability two years prior to the motion to change when he attended a French immersion program. He was assessed by a psychologist who recommended that the child change to an English program. The child required tutoring which was arranged. Relying on King v. Mongrain, [2009] O.J. No. 2466, 2009 ONCA 486, the court stated that the onus was on the moving party to prove that there has been a material change in circumstances.
[36] In Brown, despite four significant changes in the child’s life, the court found that change alone was not adequate to constitute a material change. In para 78, the court stated, “…the change must have altered [the child’s] needs and/or the ability of [the parents] to meet those needs in a fundamental way. Based on the evidence I cannot reach that conclusion.” In para. 87, the court stated,
There was no evidence presented on behalf of [the child] from the Office of the Children’s Lawyer (as neither party sought an order prior to trial for the Office of the Children’s Lawyer’s assistance) or from any other professional that [the child’s] needs are not being met presently and which might lead me to conclude that [the child’s] increased age and maturity are material change in circumstances.
[37] On appeal, (Brown v. Lloyd, 2015 ONCA 46) in para 9, the court stated:
For lengthy and detailed reasons, the motion judge concluded that while most of these developments constituted changes in the circumstances that prevailed at the time of the Perkins Order, none of them, alone or in combination, met the Gordon test for a material change in circumstances on the facts of this case. We see no error in this conclusion.
[38] Mr. Coppin wants more time with Ezra. It is commendable that he wishes to be an integral part of his young son’s life. According to Stirling, I am to consider the last parenting order as correct and reasonable. According to Gordon, a material change in circumstances must be a change that has altered the child’s needs or the ability of his parents to meet those needs in a fundamental way.
[39] The evidence at this trial has not satisfied me that there has been any change since last order that has altered Ezra’s needs or the ability of his parents to meet those needs in a fundamental way. There is no evidence that Ezra’s needs are not being met. The only change that has occurred is the fact that Ezra is now two years older than he was when the last order was made. He is now four years old. As noted in Wiegers, simply the passage of time and increased maturity of a child does not, by itself, constitute a material change in circumstances. If it did, parties could bring motions to change every few years which is “contrary to established law”.
[40] As seen in Stirling, when older children (who were 12 and 13) want to have input regarding the time that they spend with the parent, this can result in a material change in circumstances. It is important to note that in Stirling, the Office of the Children’s Lawyer became involved upon a request from the court and conducted interviews. The lawyer for the OCL presented the children’s views in an objective manner to the court.
[41] It is unfortunate that Ezra’s starting school has resulted in the loss of Mr. Coppin’s daytime midweek parenting time; however, that was to be expected and it was clearly contemplated in Quinlan J.’s Order. I note that Ms. Arboine has offered Mr. Coppin an earlier Friday pick up so that he would have additional parenting time. He has been able to take advantage of this in a limited way.
[42] Given my finding that there has been no material change in circumstances, the motion to change is dismissed.
Costs
[43] Ms. Arboine has successfully defended the motion. She did not request any out of pocket reimbursement for her expenses regarding the motion to change. Therefore there is no order with respect to costs.
Vallee J. Released: November 28, 2018
Footnotes
[1] Such as peeing, doing his hair, shaving, discussing girlfriends. [2] The court expressed concern to Mr. Coppin that if he was telling Ezra about these proceedings, it was entirely inappropriate. [3] A bacterial skin infection. [4] I recommended to the parties that they use Our Family Wizard to communicate with each other. They both agreed that this would provide a positive benefit. Furthermore, Ms. Arboine could list Ezra’s schedule and upcoming activities. Mr. Coppin could view them. This would eliminate disagreements as to whether he had been provided with relevant information. It would also eliminate copying third parties on emails between the parents.