Court File and Parties

COURT FILE NO.: FS-15-15988-02 DATE: 20190527 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Rosa Maria Ageitos Applicant – and – Karim (Kevin) Riha Respondent

Counsel: Cheryl Hodgkin, for the Applicant Rayleen Cantin, for the Respondent

HEARD: February 25, 2019

Ruling on Motion

HEBNER J.:

Ruling on Motion

1The applicant mother and respondent father have two children. They are Kevin Riha Jr., born May 4, 2008, and Charlotte Rose Riha, born March 23, 2012. The parties separated in March 2015. A final order was made by King J. on August 11, 2016, providing that the applicant mother have sole custody of the children. A final order was made by Campbell J. dated December 14, 2017, providing that the respondent father have specified access including:

a) alternating weekends; b) each Wednesday from 4:00 p.m. to 7:00 p.m.; c) commencing July 2018, the Wednesday afternoon access is extended in alternating weeks until Thursday, return to school, or at 9:00 a.m.; d) specified holiday access.

2On July 23, 2018, the respondent father launched a motion to change the orders of King J. and Campbell J. The respondent father seeks an order that he have custody of the children and the applicant mother have access. Alternatively, the respondent father seeks an order for shared custody with the children to reside with the parties on a week about schedule.

3The applicant mother brought a motion for an order dismissing the respondent’s motion to change on a summary basis. The applicant relies on r. 16(6) of the Family Law Rules, O. Reg. 114/99, which allows for summary judgment “if there is no genuine issue requiring a trial of a claim or defence”. This is my ruling on that motion.

4The respondent father asked to question the applicant mother and the applicant mother refused to be questioned. Accordingly, the motion proceeded on the basis of the respondent father’s affidavit material and the report of the Ontario Children’s Lawyer alone.

Background

Background

5The applicant mother and respondent father negotiated a separation agreement in March 2015 that resolved all issues as a result of the relationship breakdown. It was amended by amending agreement dated July 6, 2015, to address the issue of spousal support. The applicant mother commenced an application on November 23, 2015, seeking an order incorporating the terms of the separation agreement and amending agreement. The respondent did not respond. The parties executed minutes of settlement dated January 27, 2016, incorporating the terms of the separation agreement and the amending agreement in an attempt to obtain a final order. That final order was the order of King J. dated August 11, 2016. That order did not deal with access as the respondent had not filed a s. 35.1 affidavit.

6According to the respondent’s affidavit evidence, after the order of King J. was made, the applicant mother terminated his access. The applicant mother made allegations with respect to the manner in which the respondent parented the children and expressed concerns that he was sexually inappropriate. The respondent father commenced a motion to change. On January 16, 2017, the Office of the Children’s Lawyer (“OCL”) was appointed and a clinician, Lisa Heslop, was assigned to prepare a report for the court.

The OCL Report

The OCL Report

7The OCL report is dated July 24, 2017. According to the report, at the time, the applicant mother was requesting that the children’s access with the respondent father be supervised. The respondent father said he agreed to the children being in the sole custody of the applicant mother but requested that the children be in his care on alternate weekends and every Wednesday from after school until 7:00 p.m.

8The applicant mother raised the following issues and concerns:

a) she alleged that the respondent father was physically, sexually and verbally abusive to her throughout the marriage; b) she alleged that the respondent father had been emotionally, physically and verbally abusive to the children, that the children are afraid of their father and that the children feel safe only if access is supervised; c) she alleged that the respondent father was “grooming” Charlotte and she described questionable sexual and flirtatious behaviour; d) she alleged that the respondent father had been diagnosed with an antisocial personality disorder; e) she alleged that the respondent father was indiscriminate in what he shared with the children; f) she alleged that the respondent father drives dangerously when the children are in the vehicle.

9The respondent father raised the following issues and concerns:

a) he said that the applicant mother had attempted to erode his relationship with the children by restricting his access and talking negatively about him; b) he said that the applicant mother had made numerous malicious allegations against him to garner advantage in the family court proceeding.

10In her discussion of the issues raised, the OCL said the following:

1. The applicant mother is a “dedicated, protective mother who has been the children’s primary caregiver since their birth.” She has a close and loving relationship with the children and has created a “warm and child-focused home for them.” The children were observed to be affectionate with mother and comfortable in her care.
2. The respondent father is also a “dedicated father who loves his children very much and is distressed at the restriction of his access to them.” “Mr. Riha has acknowledged that he has behaved inappropriately towards the children in the past. He has taken a number of steps over the past two years to learn new parenting strategies and address parenting weaknesses.” The children were observed to be affectionate and playful towards father and comfortable in his care.
3. The concerns of sexual impropriety towards Charlotte were brought to the attention of the Children’s Aid Society (“CAS”) following an incident at school when Charlotte asked another child to see her genitals. Charlotte’s behaviour was found to be an isolated incident and did not involve any aggression or coercion. Charlotte’s behaviour was found to be within normal behaviour for her age. Charlotte was interviewed by the CAS and the Leamington Ontario Provincial Police (“OPP”) who determined there was insufficient evidence to believe an offence had taken place.
4. There was no finding that Mr. Riha had sexually interfered with Charlotte. Notwithstanding, his access was restricted to attending the children’s extracurricular activities from October 2016 until April 2017. From April 1, 2017, he was able to secure the services of an access supervisor and his access was expanded to three hours per week.
5. The respondent father has used physical discipline and has been verbally abusive in the past towards the children. The CAS investigated the allegations and the respondent father was cautioned to refrain from using physical discipline and calling the children names. The Leamington OPP investigated an allegation of physical abuse towards Kevin Jr. and concluded the respondent father’s actions were “within reason” given the circumstances. The respondent father acknowledged that he ought not to use physical discipline or the use of demeaning language and sought help to change.
6. The respondent father engaged in a therapeutic process with Dr. Schnayer. Dr. Schnayer indicated he had no concerns regarding the respondent father’s ability to parent his children. The CAS found that the respondent father had established a clean and appropriate home and had “demonstrated improved parenting skills.”
7. There was no objective evidence to support or refute the applicant wife’s allegations of intimate partner violence. The OCL clinician recommended that both parties refrain from making any negative comments to or in the presence of the children about the alternate parent.
8. The OCL clinician addressed the allegation that the applicant mother undermined the respondent father’s relationship and role with the children. After discussion about that issue, she said that at the disclosure meeting the applicant mother “expressed her relief that Mr. Riha had taken the steps that he has to obtain professional help.” The applicant mother “stated that given this information she was comfortable with the children being in Mr. Riha’s unsupervised care.” The OCL clinician said the applicant mother “is encouraged to support the children’s relationship with Mr. Riha and be circumspect in the messages she sends the children about Mr. Riha.”
9. The OCL clinician concluded with the statement that “[n]o evidence was presented to compel continued supervision of Mr. Riha’s access to the children.”

11The OCL recommended specified access to the respondent father. That specified access was adopted by the parties by way of minutes of settlement and the consent order of Campbell J. dated December 14, 2017.

Grounds for the Motion to Change

Grounds for the Motion to Change

12In his change information form, the respondent father cites the following reasons for his requested changes to the final order:

(a) there has been a material change in circumstances since the making of the order, specifically the applicant mother has attempted to alienate the children from the respondent father and does not foster a positive relationship with the children and the father; (b) the applicant mother will not agree to counselling for the children; (c) the applicant mother has not followed the access order of Campbell J. and has been in contempt.

13The respondent father provides further information in his affidavit evidence.

14In respect of the attempted alienation, he said the applicant mother shames the children from showing affection with him; Charlotte cries when he returns her to the applicant mother; Charlotte would make concerning statements such as “if daddy goes back to the judge that they won’t see mommy anymore”; Charlotte told him that “mommy would tell me what to say (to the OCL) and I would sometimes forget”; the children have told him that they are not allowed to speak about him to their mother.

15In respect of the counselling, the respondent father said that counselling immediately stopped following the conclusion of the OCL report.

16In respect of the access issues, the respondent said that the applicant had enrolled the children in dance classes on Wednesdays; that he only received two non-consecutive weeks during the 2018 summer vacation months and the applicant mother insisted that she receive two separate periods of three consecutive weeks each.

The Applicant’s Motion for Summary Judgment

The Applicant’s Motion for Summary Judgment

17The applicant mother takes the position that the respondent’s motion to change materials do not allege a material change in circumstances such that the orders of King J. and Campbell J. may be varied. The applicant mother submits that even if all of the respondent’s allegations are true, the allegations would not result in a material change in circumstances. Accordingly, the applicant mother takes the position that she is entitled to an order for summary judgment, dismissing the motion to change.

Analysis

Analysis

18The parties were never married. Accordingly, the applicable legislation is the Children’s Law Reform Act, R.S.O. 1990, c. C.12. That Act provides, in s. 29, as follows:

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.

19The test is summarized by Gray J. in Kerr v. Easson, 2013 ONSC 2486, at para. 57:

In order to succeed in changing a final order, the moving party must show that there is a material change in circumstances: see Gordon v. Goertz, [1996] 2 S.C.R. 27; Willick v. Willick, [1994] 3 S.C.R. 670; and Persaud v. Garcia-Persaud (2009), 2009 ONCA 782, 81 R.F.L. (6th) 1 (Ont. C.A.). In order for a change to be “material”, it must be one of some significance, and it must relate to a state of affairs that was not known or foreseen at the time the original order was made: see Willick, supra.

20It seems to me that there are three questions that must be asked. Firstly, is there a change in circumstances? Secondly, is the change one of some significance? Thirdly, does the change relate to a state of affairs that was not known or foreseen at the time the original order was made?

21Turning then to the three alleged material changes raised by the respondent father outlined above.

22Father alleges that mother has attempted to alienate the children from father and does not foster a positive relationship with father. Repeated alienation conduct can constitute a material change in circumstances. An allegation of alienating conduct is a serious allegation. It goes to the very heart of a child’s best interests – specifically the need for children to have healthy fulsome relationships with both of their parents.

23It seems to me that such an allegation ought not to be raised unless there is clear, direct evidence of alienating behaviour. In this case, there is no direct evidence of such behaviour. Father’s affidavit evidence on this point involves statements made by the children, as opposed to any specific actions of the applicant mother. Children of divorced parents who do not like each other are often put in an impossible position. It is not unusual for such children to tell one parent what he or she wants to hear. Without any clear, direct evidence of alienating behaviour, in my view, the statements made by the children as alleged by the respondent father do not, in and of themselves, constitute a change in circumstances sufficient to support a motion to change.

24I note that the evidence of the applicant father is that he has had regular access with the children. In his change information form, he states that “the subject children and the respondent father are bonded and share a close and loving relationship.” This statement tells me that the current custody and access regime is successful and that the children have not been alienated from their father. This seems to belie father’s allegations of attempted alienation.

25The second alleged material change is that the applicant mother will not agree to continue counselling for the children. The respondent’s complaint is that the children were receiving counselling and the counselling was terminated following the order of Campbell J. The OCL report discloses that Charlotte was receiving counselling from Ms. Branjit, a counsellor employed by the Sexual Assault Crisis Centre who works with children. One of the recommendations of the OCL was that: “Mr. Riha establish a relationship with Ms. Branjit to (1) be kept apprised of Charlotte’s progress and any concerns that she may have related to her relationship with Mr. Riha; and, (2) attend a joint counselling session with Charlotte should Ms. Branjit deem it is appropriate and beneficial to Charlotte.”

26The Campbell J. order provides, in para. 7: “If recommended by the family physician or school officials, counselling services shall be arranged and the Respondent may participate if recommended.”

27There is no evidence as to whether Charlotte continues to require counselling. There is no evidence as to whether the family physician or school officials recommended counselling. The only evidence on counselling is in the father’s affidavit where he says:

Following the court Order of December 2017, and despite the Applicant expressing concerns that I was acting inappropriately sexually, which was never verified, but nevertheless had enrolled my daughter in sexual assault counselling which was immediately stopped following the conclusion of the OCL and the report.

28Absent any evidence that Charlotte and/or Kevin Jr. require counselling, I am unable to find that there is any evidence of a change in circumstances sufficient to support a motion to change.

29The third alleged change in circumstances is that the applicant mother has not complied with the access order of Campbell J. and is in contempt. Repeated breaches of a final order can constitute a material change of circumstances: see Laurin v. Martin, [2005] O.J. No. 2899. In his affidavit evidence, the respondent father makes the allegation, “[t]he applicant cancels access and does not make it up as she is supposed to.” The only specific instances referred to are a change in pickup time on Wednesdays to 5:00 p.m. and summer vacation access in 2018. I will deal with each of these in turn.

30The Campbell J. order provides for access by father commencing July 2018 on alternating Wednesdays from 4:00 p.m. until Thursday at the commencement of school or at 9:00 a.m. According to the respondent’s affidavit evidence, in the fall of 2018 the applicant mother arranged for the children to have their dance classes on Wednesdays after school. The applicant changed the drop off location from Tim Horton’s to the dance studio and the respondent is to pick up the children at 5:00 p.m. The respondent’s complaint is that he and the children lose one hour of their time together on alternating weeks.

31The Campbell J. order provided for father to have summer access in paragraph 2(v) as follows:

Two weeks vacation time with the children, one week in July and one week in August of each year, non-consecutive, provided that the Applicant shall have three weeks of uninterrupted time with the children each year during the months of July and August, said weeks to be consecutive.

32The applicant mother interpreted that paragraph to mean that she should have three weeks of uninterrupted time in July and three weeks of uninterrupted time in August. That interpretation was clearly wrong. She is entitled to three weeks of uninterrupted time during the entire summer. As a result of her mistake, the respondent lost one weekend of time and at least one Wednesday overnight with the children.

33Do these two infractions of the Campbell J. order together constitute a change in circumstances? In my view, they do. Is it a change of some significance such that the change is material? In my view, it is not.

34I make the observation that children are entitled to attend extracurricular activities. They are entitled to pursue interests such as sports or dance. They are entitled to have the support of their parents, including having their parents observe the activities. Children of a separated family are no exception. There is no information in the respondent’s affidavit that would explain why he cannot attend at the dance studio at 4:00 p.m. and enjoy watching his children during their dance classes. In any event, if an activity is to be scheduled during the time that the children are to be in their father’s care, it ought not to be scheduled absent his consent. This issue could be resolved by providing that direction to mother, and I do so now. As for the summer access infraction, there is no evidence of a deliberate breach on the part of mother. Moreover, this issue can be resolved by directing that father have an additional uninterrupted period of four days this coming summer. I make that direction now as well.

35These two children have been through much in the course of their parents’ dispute. They have been through many months of not knowing what their lives will look like; they have been through counselling; they have been through an OCL investigation. According to the OCL report, the children “are well aware of the conflict” between their parents. Kevin Jr. “identifies the source of his parents conflict as related to him and Charlotte.” These children do not need further prolonged conflict between their parents. Given the past events, these children, in particular, have a heightened need for stability and finality. The Campbell J. order and the King J. order, together, gave them that. The events described by the respondent father in his affidavit material are not sufficiently significant to support a variation by reason of a material change in circumstances such that these children’s stability is put at risk.

Disposition

Disposition

36For the foregoing reasons, the applicant’s motion for summary judgment is granted and the respondent’s motion to change is dismissed. If the parties cannot agree on costs they may provide brief submissions with a costs outline and any relevant offers to settle.