Court File and Parties

COURT FILE NO.: FC-10-1845-3 DATE: 2019/07/02 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

TARA TRACEY WAKELING Applicant – and – ANTHONY JUSTIN DEBASSIGE Respondent

Counsel: Jennifer Reynolds, for the Applicant Francis Aheto-Tsegah, for the Respondent

HEARD: June 18, 2019

Reasons for Decision

MACEACHERN J.

[1] Mr. Debassige is a member of the M’Chigeeng First Nation. He seeks to change the parenting schedule for the parties’ two children, ages nine and thirteen. The focus of Mr. Debassige’s position is that changes are required to support the children’s connection with their First Nation’s heritage, communities, and language.

[2] Ms. Wakeling is not First Nation. The children have primarily resided with Ms. Wakeling since 2010, in Quebec, approximately 65 kilometres from Ottawa. Mr. Debassige seeks to have the children primarily reside with him in Ottawa. In the alternative, Mr. Debassige seeks to have the children attend school in Ottawa. Mr. Debassige also seeks to have the children in his care for three days over Aboriginal Day (June 21st) and additional weekends so that the children can attend powwows in the Ottawa area, in Mr. Debassige’s home community, and a neighbouring community.

[3] Ms. Wakeling opposes these claims, primarily on the basis that she is supportive of the children’s connection with their First Nation’s heritage and that there has not been a material change in circumstances. Ms. Wakeling also seeks an order preventing Mr. Debassige from bringing any further motions to vary without leave of the court. She argues that he has abused the court process by bringing numerous variation proceedings.

[4] The issues to be decided are as follows:

a. Has there been a material change in circumstances warranting the changes sought by Mr. Debassige? b. If there has been a material change, what parenting arrangement is in the best interests of the children given that change? c. Should this Court prevent Mr. Debassige from bringing further motions to vary without permission?

[5] I find that there has not been a material change in circumstances that warrants placing the children in Mr. Debassige’s primary care or attending school in Ottawa. I do find, however, a material change that warrants an order varying the schedule to accommodate the powwows. The children have routinely attended the powwows, but the lack of clarity in the existing schedule has caused conflict that warrants a change. I dismiss Ms. Wakeling’s motion to prevent Mr. Debassige from bringing further motions to change without leave of the court.

Preliminary Matters

[6] Ms. Wakeling initiated this motion date by bringing a motion seeking summary judgment of Mr. Debassige’s motion to vary. Mr. Debassige then returned his motion to vary to the same date. Given the decision below, it is not necessary to deal with Ms. Wakeling’s summary judgment motion separately.

[7] A second preliminary matter is the status of the final order of the Quebec Superior Court dated November 15, 2016. Mr. Debassige ignores this order and only seeks to vary the previous order – the Divorce Order of the Ontario Superior Court dated September 17, 2012.

[8] The 2016 Quebec Order is a final order. The Quebec Superior Court made that order following Mr. Debassige’s application to the Quebec Superior Court in 2014, to vary the 2012 Divorce Order. Ms. Wakeling responded with her application to vary. Mr. Debassige participated in the Quebec proceeding until the summer of 2016. He states that he withdrew his application at that time. Ms. Wakeling’s application proceeded in Mr. Debassige’s absence and resulted in the 2016 Quebec Order.

[9] Mr. Debassige has neither appealed the 2016 Quebec Order nor sought to set it aside.

[10] Earlier in these proceedings, the parties agreed that this Court has jurisdiction to determine this motion to vary, and, if the test is met, the best interests of the children, even though they reside in Quebec. This agreement is consistent with the consent term in the 2012 Divorce Order that future variation proceedings take place in Ottawa. The parties’ agreement on jurisdiction, however, does not give this court jurisdiction to ignore the 2016 Quebec Order, nor to set it aside.

[11] Given this, I have treated Mr. Debassige’s motion as a motion to vary the 2012 Divorce Order, as varied by the 2016 Quebec Order. The two orders mirror each other, except for some differences. Where they differ, the 2016 Quebec Order takes precedence.

Issue 1: Has there been a material change in circumstances warranting the changes sought by Mr. Debassige?

[12] I find that there has not been a material change, particularly since the 2016 Quebec Order but also not since the 2012 Divorce Order, which warrants the changes sought by Mr. Debassige.

Mr. Debassige’s Position

[13] The focus of Mr. Debassige’s position is that the existing parenting arrangements prevent the children from learning about and participating in their First Nation’s heritage. Mr. Debassige argues that there has been a material change in circumstances warranting the changes he seeks. He argues that Ms. Wakeling is not supportive of the children’s First Nation’s heritage, the children’s current school calendar in Quebec interferes with their ability to participate in Indigenous events, and that the children want to reside with Mr. Debassige so that they can connect better with their First Nation’s heritage, including learning Ojibwe.

[14] Mr. Debassige places great emphasis on the increased recognition of the importance of Indigenous children’s relationship with their Indigenous heritage, communities, and language. He points to a number of sources in support, including the Truth and Reconciliation Commission Report’s Calls to Action ^1, released in 2015, and other legislative developments such as the recent amendments to the Child, Youth and Family Services Act, the Anishinabek Nation Education Agreement Act, and the newly enacted legislation regarding Child and Family Services for Indigenous Families. These developments reflect the increased recognition and understanding of the importance of maintaining a child’s connection to their First Nation’s heritage, community, and language. However, the sole consideration for determining custody and access for a First Nation’s child continues to be the best interests of that child. The child’s best interests will normally reflect the importance of the child maintaining a connection with their First Nation’s heritage, as well as other factors unique to the child in their particular circumstances.

Ms. Wakeling’s Position

[15] Ms. Wakeling’s position is that this Court should dismiss Mr. Debassige’s motion in its entirety, as there has not been a material change since the 2016 Quebec Order, or the 2012 Divorce Order. Ms. Wakeling acknowledges that there has been conflict between the parties, in particular in arranging the schedule for Aboriginal Day and the powwows. She attributes these difficulties to Mr. Debassige ignoring the terms of the 2016 Quebec Order and acting unilaterally. Ms. Wakeling states that she supports and values the children’s First Nation’s heritage and attendance at the Aboriginal Day activities, powwows, and connection to the M’Chigeeng First Nation.

[16] Ms. Wakeling acknowledges that in practice, Mr. Debassige has taken over responsibility for the children’s dental care, and she agrees that this continues. Ms. Wakeling further acknowledges that in practice, the children have not attended school on Aboriginal Day, and she agrees that this continues.

Legal Framework

[17] Before a court may vary the parenting provisions of an order, the court must be satisfied that there has been a material change in the conditions, means, needs, or other circumstances of the child occurring since the making of the last variation order made in respect of that order (Divorce Act, s.17 (5); Gordon v. Goertz, [1996] 2 SCR 27). A material change in circumstances is one that:

1. Amounts to a change in the conditions, means, needs, or other circumstances of the child and/or the ability of the parents to meet the needs of the child;
2. Materially affects the child; and
3. Was either not foreseen or could not have been reasonably contemplated at the time of the last variation order.

[18] The onus to prove there has been a material change is on Mr. Debassige – he is the party seeking the change. He must prove this on a balance of probabilities. If Mr. Debassige is unable to show the existence of a material change, the inquiry can go no further.

[19] Evidence on a motion seeking a final order should meet the same tests for admissibility as apply at trial. Mr. Debassige has filed several affidavits that include significant evidence, on key issues, that would not be admissible at trial. This evidence includes his statements about the wishes of the children, unsworn letters from third parties, and other unsworn information from third parties. Even though this matter is proceeding by affidavits, this is a motion to change seeking a final order. It is not interim. The fact that the rules allow for this matter to proceed by affidavit is not an invitation to water down the rules of evidence.

Children’s Wishes

[20] I do not find that there has been a material change based on the wishes of the children. Evidence of the children’s views and preferences goes to the very heart of this matter. Mr. Debassige is seeking significant changes to a parenting schedule that has been in place since 2010, involving a nine-year-old and a thirteen-year-old. At these ages, and particularly concerning the older child, the views and preferences of the children are important factors in determining whether there has been a material change and, if there has been a material change, their best interests. Mr. Debassige has not provided reliable and admissible evidence of the children’s views and preferences. The requests for the children to primarily reside with Mr. Debassige and attend school in Ottawa, fail on this factor alone.

[21] Mr. Debassige’s position is that the children want to live with him, want to be able to participate in more Indigenous cultural events and activities, and learn to speak Ojibwe. The only evidence in support of this position is Mr. Debassige’s statements about the children’s wishes. Ms. Wakeling’s evidence is that she is not aware of any such statements.

[22] Mr. Debassige’s evidence regarding the children’s statements is hearsay. Mr. Debassige does not provide any evidence in support of the admissibility of these statements. There are other ways to have the children’s views and preferences put before the court, including through a Voice of the Child Report. Mr. Debassige did not attempt to implement these alternatives. Mr. Debassige does not provide the context for the children’s statements, the actual words used by the children, the dates and times of the statements, and the extent of his involvement, or others, in eliciting these statements. There is a significant risk that Mr. Debassige’s presentation of these statements is self-serving. Mr. Debassige’s statements in his affidavits regarding the children’s wishes are inadmissible.

First Nation’s Heritage

[23] I do not find that there has been a material change based on Ms. Wakeling not being supportive of the children’s First Nation’s heritage. I find that Ms. Wakeling values the children’s connection to their First Nation’s heritage and communities.

[24] Ms. Wakeling is supportive of the children attending powwows, spending time with their extended paternal family, spending time in the father’s community, and learning to speak Ojibwe if they wish to do so. The fact that the children routinely attend the powwows during the summer reflects this support. Both the 2012 Divorce Order and the 2016 Quebec Order provide for the children to spend equal time with each parent during the summer. Ms. Wakeling has not insisted on an equal division of time over the summer but has agreed to Mr. Debassige having the children in his care for additional time, including most of the long weekends, to accommodate the powwows. Ms. Wakeling has also supported and facilitated the children’s connections with their extended paternal family and participated in First Nation’s activities with them. Ms. Wakeling would like to take the children to First Nation’s events, such as the powwow in Ottawa; however, Mr. Debassige has prevented this. Despite the wording of the 2016 Quebec Order, Ms. Wakeling has also not insisted that the children attend school on Aboriginal Day [^6].

[25] I also do not find that the value placed on the children’s First Nation’s heritage is a change. The importance of the children’s connection to their First Nation’s heritage was a significant issue raised in the proceedings that lead to the 2012 Divorce Order and the 2016 Quebec Order. Both orders reflect this importance, including by specifically providing for the children to be in the care of Mr. Debassige on Aboriginal Day, in each year.

Quebec School Calendar

[26] I do not find that there has been a material change based on Mr. Debassige’s allegation that the Quebec school calendar interferes with the children’s ability to participate in Indigenous celebrations. Mr. Debassige’s counsel explained that the powwows are planned around the Ontario school calendar and submits that the Quebec school calendar ends later and begins earlier, which interferes with Aboriginal Day celebrations and the Labour Day powwow. The evidence does not support this allegation. The children’s Quebec school calendar has not prevented them from participating in Aboriginal Day activities or attending the Labour Day powwow, both of which they regularly attend.

[27] Mr. Debassige’s concerns with the Quebec school calendar relate to the parties’ conflict on the issue of when summer begins and ends. The 2016 Quebec Order specifies that the summer schedule begins on the first Friday following the end of school. Mr. Debassige seeks to have the summer schedule begin on the third Friday of June, which corresponds with Summer Solstice and Aboriginal Day. This schedule aligns with Mr. Debassige’s interest in taking the children to the powwows. However, the evidence is that even though the children go to school in Quebec, they have regularly participated in Aboriginal Day activities and attended the Summer Solstice and Labour Day powwows.

Indigenous Support Services provided by the Ottawa Carleton District School Board

[28] I do not find that there has been a material change based on Mr. Debassige’s argument that the Ottawa Carleton District School Board (OCDSB) provides support services for Indigenous students that would benefit the children if they attended school in Ottawa. Mr. Debassige has not provided evidence on how these support services would address the specific needs of the children, including what services would be available to the children.

[29] Mr. Debassige has not identified what school the children would attend if they did attend school in Ottawa. He has provided sweeping descriptions of the services provided, including that the OCDSB has an Indigenous Education Department, a student support and re-engagement coordinator, funds an aboriginal school liaison worker position at Wabano Aboriginal Centre for Health, has specific programming, is “responsible to community partners”, and has an Indigenous Partnership with the Indigenous Mentorship Program at certain high schools. However, these statements only echo the information provided on the OCDSB’s website. Mr. Debassige has not provided evidence, based on direct knowledge, which addresses how these services apply to the children, in the specific school that Mr. Debassige proposes they attend.

[30] These issues illustrate a general weakness in Mr. Debassige’s position. Mr. Debassige has not provided a detailed parenting plan for the children if the children were to reside with him primarily. Mr. Debassige has not identified what school the children would attend. He has not proposed how the children would get to and from school. He has not identified how this school would address the children’s needs. He has not proposed how he would support the children’s relationship with Ms. Wakeling, aside from her having access on alternate weekends. He has not proposed how to support the children’s other important social connections. He has not provided a plan to assist the children in adjusting to this change.

[31] Mr. Debassige has also not provided a detailed parenting plan for his alternate proposal that the children attend school in Ottawa, even if they continue to reside with Ms. Wakeling, in Quebec, 65 kilometres away. His only plan is for Ms. Wakeling to drive the children to and from school each day because she works in Ottawa. Mr. Debassige has again not identified what school the children will attend in Ottawa, when school starts, when school ends, and how the additional travel time will affect the children, including their schoolwork and activities.

[32] I do not find that there has been a material change because the OCDSB now supports Indigenous cultural programming.

Extracurricular Activities

[33] I do not find that there has been a material change because the children have not been able to pursue important extracurricular activities, being soccer and swimming. The children do participate in extracurricular activities. That these activities may not be the ones Mr. Debassige prefers is not a material change.

Aboriginal Day and Powwows

[34] The conflict between the parties concerning the schedule for Aboriginal Day and the powwows is a material change. The 2016 Quebec Order arguably defines the parenting schedule, and particularly the summer schedule. However, the parties have historically agreed to adjust this schedule, primarily so that the children can attend several powwows with Mr. Debassige. The difficulty is that this flexibility has also lead to conflict between the parties. This conflict was not foreseen at the time of the 2016 Quebec Order. The 2016 Quebec Order made small changes to the schedule under the 2012 Divorce Order, in an attempt to end this conflict. This change was not successful. This conflict has caused disruption for the children, resulting in one or the other parent being perceived as acting unilaterally, and has materially affected the best interests of the children.

Other Allegations

[35] Mr. Debassige made several other allegations in support of his position that there has been a material change. I do not accept these. These allegations either arose from events that predated the 2016 Quebec Order (and even the 2012 Order) or were made up of statements that lacked particulars.

Issue 2: If there has been a material change, what parenting arrangement is in the best interests of the children given that change?

[36] I have made the orders below to vary the schedule for Aboriginal Day and the powwows. In making a variation order after finding there has been a material change, the court shall take into consideration only the best interests of the child as determined by reference to that change (Divorce Act, s.17 (5); Gordon v. Goertz, [1996] 2 SCR 27). The changes made reflect the parties’ practice of accommodating Aboriginal Day activities and powwows, while also providing a schedule for these events if the parties are unable to agree otherwise. I have also provided principles that shall apply when flexibility in the schedule is required to facilitate, encourage, and support the children’s First Nation’s heritage.

[37] I find these changes are in the children’s best interests. The changes reflect the importance of maintaining the children’s connection to their First Nation’s heritage, reflect the parties’ practice of adjusting the schedule to provide for Aboriginal Day and the powwows, and set out more detail on how to adjust the schedule in the absence of an agreement to the contrary.

[38] I have also varied the existing order to provide for the change regarding dental appointments. Ms. Wakeling does not object to this change.

[39] The parties have agreed to a summer schedule for 2019, as set out in the interim consent order. That schedule shall continue to apply for the summer of 2019.

[40] Both parties have indicated that they wish to have one consolidated order that reflects all of the parenting terms between them, rather than for these terms to be set out in two variation orders and the 2012 Divorce Order. I agree to make such an order, but first, the parties shall attempt to agree on the wording. The parties shall schedule a further date through the trial coordinator to finalize this order before me. Both parties shall file their proposal for the consolidated terms of the parenting order at least seven days in advance of the return date, limited to three pages, double-spaced, plus their attached proposed consolidated order.

Issue 3: Should this Court prevent Mr. Debassige from bringing further motions to vary without permission?

[41] I decline to grant an order preventing Mr. Debassige from bringing further motions to vary without permission of the court. Mr. Debassige has been responsible for starting several variation proceedings since the 2012 Divorce Order. However, Ms. Wakeling has not provided evidence of previous costs orders against Mr. Debassige [^8], nor that he has failed to pay such costs.

[42] One of the fundamental purposes of modern costs rules is to discourage and sanction inappropriate behaviour by litigants (Family Law Rules, rule 2(2); Mattina v. Mattina, 2018 ONCA 867). Ms. Wakeling raises concerns that an award of costs against Mr. Debassige would not be effective in achieving this purpose. However, in the absence of a pattern of this happening in the past, there is no basis for concluding this will be the case. The court’s discretion to award costs against an unsuccessful party is an important tool to dissuade parties from initiating meritless court proceedings. Other tools are also available, such as the power to strike out vexatious pleadings or an abuse of process. In the absence of a litigation history where the court has found it necessary to use other tools to dissuade meritless proceedings, and where those tools have proven to be ineffective, I do not find that Mr. Debassige’s litigation history warrants such an order at this time.

Disposition

[43] For the above reasons:

1. I dismiss Mr. Debassige’s motion to change the 2012 Divorce Order, as varied by the 2016 Quebec Order, to change the children’s primary residence.
2. I dismiss Mr. Debassige’s motion to change the 2012 Divorce Order, as varied by the 2016 Quebec Order, to have the children attend school in the Ottawa Carleton District School Board.
3. I dismiss Mr. Debassige’s motion to change the 2012 Divorce Order, as varied by the 2016 Quebec Order, to have the children for Aboriginal Day from 2 p.m. on June 20th until 5 p.m. on June 23rd. Mr. Debassige shall have the children on Aboriginal Day from after school on June 20th to 7 p.m. on June 21st, to attend Aboriginal Day activities and the children shall not be required to attend school on this day. If June 21st at 7 p.m. is Mr. Debassige’s parenting time under the regular schedule (because June 21st falls on a weekend), the children shall remain in his care until the end of his regular parenting time.
4. I dismiss Mr. Debassige’s motion to change the 2012 Divorce Order, as varied by the 2016 Quebec Order, to change the start of the summer schedule to be on the third Friday of June. During the summer school holiday, the children will continue to spend alternating weeks with each parent, with the transfer being on Friday at 5:30 p.m. The summer school holiday shall be the period from the first Friday following the end of both children’s school year in June, to the last Friday before the start of the school year at the end of summer. If the children’s schools end on different dates, the summer school holiday shall start on the first Friday following the end of the latest school year. If the children’s schools start on different dates, the summer school holiday shall end on the last Friday before the start of the earliest school year.
5. I dismiss Mr. Debassige’s motion to change the 2012 Divorce Order, as varied by the 2016 Quebec Order, to provide that the children shall be in his care for additional time so that they can attend the four powwows. I provide, however, for the parenting schedule to be adjusted as set out below to accommodate the powwows.
6. The 2012 Divorce Order, as varied by the 2016 Quebec Order, is further varied to provide for the clarifications of Aboriginal Day and the summer school period as provided for under paragraphs three and four above, as follows: i. The parties shall ensure that they continue to adjust the regular and summer school holiday schedule so that the children may participate in the powwows as they have in the past, which may involve switching weekends. The parties have agreed to a summer schedule for 2019, as set out in the interim consent order. That schedule shall continue to apply for the summer of 2019. After that, the parties shall apply the following principles in arranging the parenting schedule to accommodate the powwows:
   1. The regular and summer school holiday schedule will be adjusted as is reasonable to ensure that the children may attend the Odawa Powwow (May long weekend), Summer Solstice Powwow (in Ottawa), Wikwemikong First Nation Annual Traditional Powwow (Civic Holiday weekend), and M’Chigeeng First Nation Annual Traditional Powwow (Labour Day weekend), with Mr. Debassige. These adjustments may involve switching weekends;
   2. The parties will exchange schedules on or before April 1st in each year with their respective proposed adjustments for the above powwows in that year. If the parties are unable to agree on the adjustments by May 1st in each year, the following shall apply: a. The children will spend the weekend of the Odawa Powwow (May long weekend) with Mr. Debassige, from Friday after school to Monday at 5:30 p.m. and the children will spend the following weekend with Ms. Wakeling; b. The children will spend the weekend of the Summer Solstice Powwow with Mr. Debassige, from Friday after school to Sunday at 5:30 p.m. and the children will spend the following weekend with Ms. Wakeling, from Friday after school (or 5:30 p.m. if not in school) to Sunday at 5:30 p.m.; c. The children will spend the weekend of the Wikwemikong First Nation Annual Traditional Powwow (Civic Holiday weekend) with Mr. Debassige, from Friday at 5:30 p.m. to Monday at 5:30 p.m. and the children will spend the following weekend with Ms. Wakeling, from Friday at 5:30 p.m. to Sunday at 5:30 p.m.; and d. The children will spend the weekend of the M’Chigeeng First Nation Annual Traditional Powwow (Labour Day weekend) with Mr. Debassige, from Friday at 5:30 p.m. to Monday at 5:30 p.m. and the children will spend the previous weekend with Ms. Wakeling, from Friday at 5:30 p.m. to Sunday at 5:30 p.m.;
   3. The parties shall continue to support, encourage and facilitate the children’s awareness, understanding, knowledge, and connection to their First Nation’s heritage, communities, and language, in accordance with the children’s best interests and taking the children’s views and preferences into account. This involvement should allow both parents to participate in activities with the children, by, for example, attending powwows and other events. Any changes to the parenting schedule shall, however, require the consent of both parties, such consent shall not be unreasonably withheld; and
   4. Mr. Debassige shall be responsible for arranging the children’s dental appointments. Upon arranging such an appointment, he shall notify Ms. Wakeling forthwith of the time, date, nature, and address of the appointment. The parties shall make best efforts to schedule such appointments after 2 p.m. to facilitate each parent’s attendance at the appointment. The parties will coordinate to ensure that at least one of them can attend the appointment with the child. If only one parent attends the appointment, the parent that attends shall provide the other parent, by email, with any information received by the health care provider relating to diagnosis, prognosis, and treatment options/recommendations.
7. I dismiss Ms. Wakeling’s motion for an order preventing Mr. Debassige from bringing further motions to vary without the permission of the court.
8. As requested, the parties shall schedule a further date through the trial coordinator to finalize a consolidated order that reflects all of the parenting terms between the parties set out in the 2012 Divorce Order, as changed by the 2016 Quebec Order, and as further changed herein. Both parties shall file their proposal for the consolidated terms of the parenting order at least seven days in advance of the return date, limited to three pages, double-spaced, plus their attached proposed consolidated order.

Costs

[44] If the parties are unable to agree on the costs of this motion, Ms. Wakeling may file submissions concerning costs on or before July 12, 2019. Mr. Debassige may file submissions concerning costs on or before July 19, 2019. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs and shall be spaced 1.5 spaces apart, with no less than 12-point font.

Justice P. MacEachern Released: July 2, 2019

[^6]: Now called the National Indigenous Peoples Day, celebrated on June 21st to correspond with summer solstice. I have used the term “Aboriginal Day” because this is the term used by Mr. Debassige and is the term used in the previous orders. [^8]: The 2016 Quebec Order states “The Whole with costs” but there is no evidence of what these costs were.