Court File and Parties

FILE NO.: D13960/13-01(Brantford) DATE: 2019-01-22 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: ASHLEY YVETTE CARLSON Applicant/Responding Party – and – CHRISTOPHER PAUL THOMPSON Respondent/Moving Party

Counsel: Ian Gerald Smits, for the Applicant/Responding Party Maybelline Massey and Tiffany M. Clarke, for the Respondent/Moving Party

HEARD: December 10, 11, 12, 13, 14 and 17, 2018

D.A. BROAD

REASONS FOR JUDGMENT

Background

[1] The applicant mother and respondent father were married on January 29, 2005 and separated on November 15, 2010. There are three children of the marriage Joshua, born March 16, 2006, Kayla, born September 6, 2007 and Jacob born May 19, 2009.

[2] On April 24, 2015 Justice Hambly made an Order, pursuant to Minutes of Settlement entered into by the parties, providing, inter alia, for the following:

(a) The applicant mother shall have custody of the children; (b) The respondent father shall have access to the children on alternating weekends from Friday after school until Sunday at 6:00 p.m. and, on alternating weeks, from Wednesday after school until Thursday at the commencement of school; (c) The respondent father shall have additional access in two non-consecutive weeks each year; (d) The parties shall have the same right and entitlement to information from third-party service providers; (e) The respondent shall pay child support to the applicant.

[3] On December 12, 2017 the respondent brought a Motion to Change the Order of Hambly, J. (the “Hambly Order”) to provide for the following:

(a) The respondent father shall have custody of the children and the children’s primary residence shall be with him; (b) The applicant shall have access to the children on Tuesdays after school until 7:00 p.m. and on Sundays from 10:00 a.m. to 7:00 p.m.; and (c) The respondent’s obligation to pay child support shall be terminated.

[4] The applicant opposes the respondent’s motion to change.

[5] The hearing of the respondent’s motion to change was directed to proceed as a trial with viva voce evidence and cross-examination pursuant to the Order of Milanetti, J. dated August 28, 2018.

[6] The court heard five days of evidence followed by closing submissions of counsel on December 17, 2018.

[7] Pursuant to the Order of Braid, J. dated January 5, 2018 the Office of the Children’s Lawyer agreed to provide services pursuant to s. 112 of the Courts of Justice Act and assigned the matter to a clinician, Mr. Glory To, who carried out an investigation in respect of the children and submitted a report, supported by his Affidavit dated July 27, 2018. Mr. To’s report and Affidavit (the “2018 OCL Report”) were included in the Trial Record and formed part of the evidence at the hearing of the proceeding. Mr. To was also cross-examined at the hearing by both parties and responded to questions from the court.

[8] At the conclusion of his 2018 OCL Report, Mr. To made the following recommendations:

(a) The parties share joint custody of all three children with the respondent father’s home as the primary residence of the children and that he have the right to make final decisions regarding the children’s education and counselling; (b) In the case of disagreement with regard to other issues regarding the children’s well-being the parties are to seek professional assistance from a mediator; (c) The applicant mother shall have care of the children 3 out of 5 weekends from Friday after school to Sunday, extended to Monday if Monday is a school holiday, one evening during the week after school to 7:30 p.m. when there is a weekend visit and two evenings during the week when there is no weekend visit. The parties should share all school holidays, including the summer months; (d) The children shall be involved in counselling with regard to their educational needs and parental conflict; and (e) The applicant and the respondent shall be engaged in professional assistance to learn how to co-parent.

[9] The applicant filed a Dispute of the 2018 OCL Report pursuant to Rule 21(e) of the Family Law Rules. The Dispute is undated.

[10] It is noteworthy that, at the commencement of the trial, the respondent’s position, as exemplified by his counsel’s opening statement, remained that he should have sole custody of the children and that the applicant’s contact with them should be limited to two visits per week, that is on Tuesdays after school for three and one-half hours and on Sundays for 9 hours. The respondent’s position provided for no overnight visits by the children with the applicant, and no vacation, holiday or special occasion time with her.

[11] In her opening statement, counsel for the respondent advised that, in the alternative to the foregoing request, the respondent was content with an order embodying the recommendations of the Office of the Children’s Lawyer.

[12] Following the evidence at trial, the respondent’s position, as set forth in his counsel’s written closing submissions had changed such that, having heard the evidence, he believed that the custody and access arrangements for the children should be as recommended by the 2018 OCL Report.

[13] It is also noteworthy that the Hambly Order, which the respondent seeks to change, was made pursuant to Minutes of Settlement entered into by the parties and, in respect of custody and access, implemented the recommendations of the Office of the Children’s Lawyer set forth in a report prepared by Mr. To dated August 8, 2014 (the “2014 OCL Report”).

Guiding Principles

[14] The provisions of the Divorce Act which are relevant to a motion to vary an order respecting custody and/or access are as follows:

17(1) a court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

17(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

17(6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought.

17(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.

[15] The Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27 confirmed, at para. 9, that the Divorce Act directs a two-stage inquiry. First, the party seeking variation must show a material change in the situation of the child or children. If this is done, the judge must then enter into a consideration of the merits and make an order that best reflects the interests of the child or children in the new circumstances.

[16] At para. 10 the Court stated that if the applicant for the variation is unable to show the existence of a material change the inquiry can go no further.

[17] At para. 12 the Court emphasized that change alone is not enough to constitute a material change in the circumstances of the child and that the change relied upon must have altered the child’s needs in a fundamental way. The question is whether the previous order might have been different had the circumstances now existing prevailed earlier. In addition, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. The Court summarized, at para. 13, the factors of which the judge must be satisfied of before entering on the merits of an application to vary a custody order as follows:

(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 or children; (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.

Material changes alleged by the respondent

[18] The respondent relies upon four “material changes” in support of his variation motion. The first three are based upon the three factors cited by Mr. To in his 2018 OCL Report as supporting his recommendation that the applicant and the respondent have joint custody with primary residence with the respondent, namely:

(1) questions about the applicant’s ability to meet the children’s educational needs; (2) questions about the applicant’s ability to meet the children’s supervision needs; and (3) the children’s over-identification with the applicant’s feelings towards the respondent.

[19] The fourth basis of a “material change” upon which the respondent relies is his allegation that the children’s medical needs while in the care of the applicant are not being met.

[20] In response to a question from the court, counsel for the respondent submitted that the existence of any one of the bases put forward would be sufficient for a finding that there has been a material change in circumstances.

Disposition

[21] For the reasons that follow, I find that the respondent has failed to show a material change in the circumstances of the children on any of the four bases relied upon and that therefore the inquiry may go no further. In the result the respondent’s motion to change must be dismissed.

Discussion

[22] It is noted that much of the evidence led at the trial related to the second stage of the inquiry, namely, a consideration of the merits and of the interests of the children in the new circumstances, which, as mentioned above, is only to be embarked upon if a material change has been found. Since I have found that the respondent has failed to demonstrate a material change in the circumstances of the children it is not necessary to review that evidence.

[23] It is also important to observe that s. 112 of the Courts of Justice Act does not contemplate the Office of the Children’s Lawyer providing an opinion on whether there has been a material change in circumstances as that is the exclusive purview of the court. Mr. To was not requested to offer such an opinion nor did he do so. As such, the recommendations set forth in his report may be seen to relate to the second stage of the inquiry, that is, a consideration of the best interests of the children in respect of custody and access assuming that a material change in circumstances had been shown.

[24] Thus, although the respondent relies, in support of his claim of a material change, upon the three factors put forward by Mr. To as supporting his recommendations for joint custody and primary residence to the respondent, even if the existence of these factors is borne out by the evidence, that would not necessarily support a finding of a material change in circumstances. The existence of the factors cited by Mr. To may simply support a particular custody and access arrangement when those issues are considered afresh.

(a) Educational Needs

[25] In support of his submission that questions respecting the applicant’s ability to meet the children’s educational needs represent a material change in circumstances the respondent points to issues respecting the children’s school attendance records in the 2016-2017 and 2017-2018 academic years. These reports indicate significant absenteeism and lateness on the part of all three children and the reluctance of Jacob and Kayla in particular to enter their classrooms at the beginning of the school day. The respondent asserts that the applicant has failed to address these issues adequately through counselling. He also points to one instance of the applicant not dealing properly with Joshua remaining in the classroom.

[26] By way of background, during the children’s early school years after separation, the applicant resided with the children at her parents’ home in the catchment area of Prince Charles Elementary School in Brantford, which is a relatively small school with approximately 187 students on one level with no portable classrooms. The children attended Prince Charles School until Joshua was in grade 4, Kayla was in grade 3 and Jacob was in grade 1 when the applicant’s parents moved to a different home in the catchment area of Walter Gretzky Elementary School. The children began attending Walter Gretzky School at that time. Walter Gretzky School is much bigger than Prince Charles School in excess of 800 students and multiple portable classrooms.

[27] The applicant moved out of her parent’s home with the children in November 2017 into a home which was back in the Prince Charles School catchment area and proposed to enroll the children there commencing in January 2018. The respondent brought a motion for an order requiring the children to remain at Walter Gretzky School which ultimately resulted in the consent Order of Braid, J. of January 5, 2018, that they continue to attend Walter Gretzky School until further court order. On August 28, 2018, Milanetti, J. ordered that the children be enrolled at Prince Charles School commencing in the fall of 2018. The children resumed attending Prince Charles School in September 2018 and they have remained enrolled at that school.

[28] The respondent points to the record of absences and late attendances on the children’s report cards for 2016-2017 and 2017-2018 at Walter Gretzky Elementary School which disclose the following:

Child and academic year	Absences	Late attendances
2016-2017
Joshua	15.5	10
Kayla	33.5	12
Jacob	22.5	13
2017-2018
Joshua	21.5	18
Kayla	39.5	16
Jacob	25.5	29

[29] The report cards do not set forth the distribution of the children’s absences and late attendances for the children throughout the school year which might indicate whether the absences were clustered or spread out throughout the academic year. The respondent did testify that there were concerns with the children’s attendances for the periods represented by these report cards with the exception of the latter part of 2018.

[30] Although the respondent expressed the view that the children’s absences were affecting their academic performance and levels, a review of the reports did not indicate any specific comments being offered by the teachers or administrators on this.

[31] The respondent testified that Kayla and Jacob have experienced problems with school entry consisting of their refusing to enter the classroom in the morning.

[32] The applicant acknowledged that Joshua has experienced difficulties with anxiety in entering his classroom, indicating that he “struggled” with his teacher at Walter Gretzky School, but that in the current academic year at Prince Charles School he most often enters the classroom willingly. His teacher plays basketball with him in the gym prior to the school day which has been effective in making his classroom entry easier. She stated that Joshua loves school this year.

[33] The applicant testified that she arranged for tutoring for Joshua during the 2018 summer break with a tutor who is an educational assistant with the Grand Erie District School Board. The tutoring focused primarily on math with some language work as well.

[34] The applicant testified that during the first week of the current academic year at Prince Charles School, Kayla experienced difficulty entering class at the beginning of the day. This was associated with her disability and use of a walker and how she felt her classmates were perceiving her as she entered the class. She said that together with Kayla’s teacher they came up with a solution involving Kayla entering the classroom before the other children.

[35] The applicant attributed Kayla’s absences as shown on her report cards at Walter Gretzky School to various illnesses including flu and colds to which she was susceptible. In addition there were a number of deaths in the family which resulted in absences.

[36] The family also took a three days to visit Great Wolf Lodge in Niagara Falls and Kayla missed two days of school when she was taken on an excursion by the Sunshine Foundation to Disney World in Florida.

[37] The children also took one to one and one-half days to attend at the Ontario Legislature with the respondent when he was presented with an award. The applicant also pointed out that, during the latter part of the 2017-2018 academic year, she was experiencing a high-risk pregnancy and suffered from morning sickness which contributed to some of the children’s late attendances at school.

[38] The applicant indicated that Kayla experienced a fall on her first day of school in September 2018 and has also had a number of minor illnesses, but that overall she is doing “wonderfully” in school and is happy to be there.

[39] The applicant testified that she also arranged for tutoring for Kayla and Jacob once a week.

[40] The applicant arranged for counselling for Kayla at the St. Leonard’s Society every two weeks for three months to address any concerns regarding the family’s new home, the applicant’s new relationship and new siblings, being the children of the applicant’s fiancé. She is now provided with the services of a child and youth worker at Prince Charles School twice per month.

[41] The applicant testified that Jacob continues to experience anxiety which interfered with him entering the class at the beginning of the school day. She stated that “he has good days and bad days”. She described his teacher as “phenomenal,” working with Jacob on implementing gradual entry to the class. As a result he is doing better with classroom entry in the current school year than in the previous years at Walter Gretzky School.

[42] The applicant stated that she enrolled Jacob in therapy sessions at St. Leonard’s Society once a week for 6 to 8 weeks over the summer to address his fear and anxiety and to fill the gap until his return to school in the fall. At school Jacob has also been provided with the services of a Child and Youth Worker to work with him on his school entry issues.

[43] The applicant testified that the incidents of Jacob being late for school have decreased in the current school year. Jacob did miss eight days of school in November 2018 with appendicitis which required surgery.

[44] The children’s Progress Reports dated November 5, 2018 indicate that their absences and late attendances have improved in the current academic year. Joshua had two absences and no late attendances, Kayla had four absences and two late attendances and Jacob had two absences and one late attendance.

[45] Joshua’s Progress Report indicated that he is “progressing well” in all subjects and out of the six categories of learning skills and work habits, his performance was evaluated as “good” on four and “satisfactory” on two.

[46] Kayla’s Progress Report indicated that she was “progressing well” in all of her subjects except math where she was “progressing with difficulty”. Out of the six categories of learning skills and work habits, her performance was similarly evaluated as “good” on four and “satisfactory” on two.

[47] Jacob’s Progress Report indicated that he was “progressing well” in all of his subjects and his learning skills and work habits were evaluated as “good” in all six categories.

[48] In his 2018 OCL Report, Mr. To stated that there are justifications to be concerned that the applicant is not meeting the children’s educational needs. In this respect he references the children’s significant absenteeism and lateness in the 2016-2017 and 2017-2018 academic years, and states that of greater concern is the children’s refusal to enter the classroom. Mr. To does not explain why he believed that the children’s refusal to enter the classroom is of “greater concern”.

[49] In the report of his interviews with the children’s teachers, none of them made any specific mention of reluctance to enter the classroom as being of “great” concern.

[50] Jacob’s teacher commented that Jacob “has begun to come into the classroom on time and more willingly each day” and that he has received support with the issue from a Child and Youth Worker with the school board who met with Jacob on 10 occasions to work on strategies for coping with his triggers. He was described as respectful and cooperative during the sessions and was willing to practice the strategies taught.

[51] Joshua’s teacher reported that since January Joshua displayed reluctance to come into the classroom and would sit in the general office for a short time before he would enter the classroom.

[52] Kayla’s teacher noted that she needed to develop her self-regulation skills by meeting the expectation of independently and calmly entering the class at the start of the day.

[53] On cross-examination Mr. To acknowledged that he did not realize that Kayla was sensitive about her disability and that it may have been contributing to her reluctance to enter the classroom. He was also not aware that the applicant had arranged for tutoring for the children. He said he would view the provision of tutoring to be a positive thing. When he was shown the children’s Progress Reports of November 2018 he agreed that there were improvements in the frequency of absences and lateness and in the children’s academic performance and that, in looking at the Reports, the children were “headed in the right direction at school.”

[54] Mr. To made reference in his report to the circumstances surrounding the provision of counselling for Jacob by Ms. Laura Dowler during the period from November 10 to December 8, 2017. The services of Ms. Dowler had been arranged initially by the respondent and were agreed to by the applicant. Both parties executed the required consent forms for the counselling to be initiated.

[55] Mr. To reported on his interview with Ms. Dowler including her account, confirmed in her testimony at trial, that the applicant had revoked her consent to counselling after three sessions following submission by her of a letter, apparently in reference to the respondent’s motion in January 2018, recommending that Jacob not change schools from Walter Gretzky School to Prince Charles School. Ms. Dowler also related that she had received several “inappropriate, threatening e-mails” from the applicant questioning her professional ability and threatening to report her to the College of Social Workers and Social Service Workers.

[56] Mr. To made the observation in his report that “although [the applicant] cited anxiety as a barrier to the children’s school difficulties, there is no evidence that she has [been] actively seeking professional assistance to resolve the children’s school attendance.”

[57] On cross-examination Mr. To acknowledged that he was not aware that the applicant had not been informed that Ms. Dowler would be writing a letter in support of the respondent’s motion to disallow the children’s change to Prince Charles School in January 2018. He also acknowledged that he did not know the full circumstances surrounding the applicant’s revocation of her consent to Ms. Dowler’s provision of counselling for Jacob.

[58] For her part, the applicant testified that after she had consented to counselling for Jacob by Ms. Dowler she experienced difficulty obtaining information from Ms. Dowler regarding her plan for the counselling. She stated that Ms. Dowler was not communicating with her. With reference to the letter which Ms. Dowler wrote in support of the respondent’s motion to prevent the change in schools, the applicant felt that Ms. Dowler had not been provided with full information, in particular that the children had previously attended Prince Charles School and that its student body was one-third that of Walter Gretzky School. She testified that she felt that Ms. Dowler’s recommendation had been one-sided and that there had been “no transparency” with her regarding Jacob’s counselling. She testified that “as a mother I have just as much right to be involved in counselling” as does the respondent.

[59] The applicant did testify that she is “absolutely” prepared to have Jacob continue in counselling with Ms. Dowler so long as there is transparency in the communication between Ms. Dowler and both parents. Ms. Dowler testified that she would be prepared to continue with counselling if both parents consented and there was limited contact with the applicant.

[60] It is evident from the testimony of Ms. Dowler and the applicant that certain unfortunate circumstances, including Ms. Dowler’s illness on the date scheduled for the second counselling session requiring it to be rescheduled, and Ms. Dowler’s absence from the office in early January, 2018 which prevented the applicant and Ms. Dowler from being able to meet in person.

[61] It is unnecessary for the court to make any finding as to whether it was appropriate or inappropriate for Ms. Dowler to submit her report respecting the school change without obtaining input from the applicant. It is sufficient that I find that the applicant’s belief that she had not been consulted and that the communication with Ms. Dowler was inadequate was honestly held and that the revocation of her consent to the counselling with Ms. Dowler was not motivated by a desire to withhold useful or necessary counselling from Jacob. She did subsequently seek out counselling for the children at St. Leonard’s Society and also worked with the children’s teachers and the Child and Youth Workers provided by the Board in developing strategies to address the reluctance of Kayla and Jacob to enter their classrooms.

[62] In my view, Mr. To’s conclusion that the applicant has not actively sought professional assistance with respect to the children’s school attendance is not a reliable basis for a finding at this stage that the applicant may not be meeting the children’s educational needs. He acknowledged that he was unaware of the full circumstances surrounding the applicant’s withdrawal of consent for the counselling with Ms. Dowler. He was also unaware that the applicant had arranged counselling through St. Leonard’s and of the children’s improved attendance records and academic performances at Prince Charles School in the fall of 2018 as well as the involvement of the Child and Youth Workers for Kayla and Jacob, as these events post-dated his report.

[63] In support of his claim that the applicant has failed to address problems with Joshua remaining in school, the respondent points to exchanges of messages between Joshua and the applicant which he extracted from Joshua’s cell-phone and provided to Mr. To.

[64] The first exchange was on September 11, 2017 in which Joshua texted the applicant asking her to pick him up because his “muscles hurt.” The applicant responded “I’ll ask Nana [the applicant’s mother] but go back to class.” During the second exchange on September 28, 2017 Joshua asked the applicant to pick him up as he felt sick, to which the applicant responded “I won’t be back to town until 3. I’ll ask Nana but no promises.”

[65] The applicant acknowledged on cross-examination that Joshua has sometimes asked her to pick him up from school, but it was her expectation that the children remain in school.

[66] In my view these text exchanges do not demonstrate any lack of effort or determination on the part of the applicant that Joshua remain in school throughout the school day nor that she responded inappropriately to his requests to be picked up from school.

[67] The Supreme Court of Canada in L.M.P. v. L.S., 2011 SCC 64 confirmed, at para. 49, that in general, a material change must have some degree of continuity, and not merely be a temporary set of circumstances. The New Brunswick Court of Appeal in Brown v. Brown, 2010 NBCA 5, 2010 CarswellNB 30 (N.B.C.A.) stated at para. 2 that the court must ask whether the “change” relied upon by the party seeking a variation is significant and long-lasting (see also Haisman v. Haisman, 1994 ABCA 249, 1994 CarswellAlta 179 (Alta C.A.), leave to appeal refused, [1995] 3 S.C.R. vi (note)).

[68] In my view the respondent has failed to satisfy the onus on him to demonstrate a material change in circumstances related to the ability of the applicant to meet the children’s educational needs. The applicant’s explanations for the children’s poor attendance records at Walter Gretzky School for the 2016-2017 and 2017-2018 were not undermined on cross-examination. The applicant has not displayed any neglect or lack of concern regarding Kayla’s and Jacob’s reluctance to enter their classrooms, but rather she worked with their teachers and Child and Youth Workers to develop strategies to address the issue. Despite Mr. To’s observation in his report that the applicant’s “belief that the children’s difficult (sic) with school would simply disappear once they are transferred to Prince Charles School seems to be oversimplified,” the transfer to Prince Charles School appears to have had beneficial effect, as exemplified by the children’s November 2018 Progress Reports. As the applicant testified, addressing the children’s reluctance to enter their classrooms is a process and, although they continue to experience difficulties, Kayla and Jacob are showing improvement in their new school settings and are benefitting from strategies being implemented by school staff.

[69] Insofar as the children’s past difficulties with school at Walter Gretzky School may be considered have represented a “change” from the Hambly Order, they did not have the necessary degree of continuity and long-lasting effect on the children to represent a material change in circumstances.

(b) Supervision Needs

[70] In support of his claim of a material change based upon the applicant’s ability to meet the children’s supervision needs, the respondent relies upon a text message exchange between Joshua and the applicant in the late evening of August 17, 2017, during a time when the applicant was residing with the children at her parents’ home. The text messages were extracted by the respondent from Joshua’s cell phone and provided by him to Mr. To.

[71] It was evident from the context of the text messages that the applicant was away from the home while the children were in bed. At 10:11 p.m. Joshua texted the applicant asking her to come to his room when she got home. At 11:38 he texted again advising that Kayla is awake and crying, that the pup was running around and asking her to come home soon. At 11:52 the applicant responded, asking whether Nana [her mother] was home, to which Joshua responded that she just got home and that Kayla was “good now” and asking her to say good night to him when she got home to which the applicant responded “Ok see you in a bit. Love you.”

[72] Mr. To commented in his report that this exchange of texts “raises the concerns of whether there was anyone supervising the children at the time Joshua asked [the applicant] to come home.”

[73] It is evident that Mr. To drew this conclusion without seeking any response or input from the applicant as she testified at trial that she never left the children alone in the home, but rather left them with their grandparents and that on the occasion in question her father (the children’s grandfather) was home minding them while her mother was out. When he was cross-examined on this Mr. To commented that there was a question as to whether the person who had the care of the children (their grandfather) was able to meet their needs.

[74] Mr. To was unable to point to any other incident or occasion which would call into question the applicant’s ability to provide supervision for the children.

[75] In my view the incident reflected in the exchange of texts on August 17, 2017 does not support a finding of a material change of circumstances related to supervision of the children by the applicant. There was no evidence calling into question the applicant’s personal capability to supervise the children. The allegation only relates to the quality of supervision provided by the applicant’s father while he was minding the children. There is no evidence that Jacob approached his grandfather on the occasion in question for assistance or that Kayla’s crying was or could have been audible to her grandfather. The text messages indicated that Kayla quieted down on her own within 14 minutes of Joshua’s text advising the applicant that Kayla was crying and there is no evidence that any of the children suffered any harm whatsoever.

[76] There was no evidence of any reoccurrence of any similar incident after the applicant and the children moved out her parents’ home on November 30, 2017 to reside with Mark Drummond.

[77] Even if an occasion of a grandparent failing to attend to a crying child for a few minutes while babysitting may be considered a “change” (which I do not find), it is clear that trivial or short-lived changes will not justify a variation (see Thompson v. Thompson, 2018 ONSC 1975 (S.C.J.) at para. 37, citing Haisman v Haisman, 1994 ABCA 249, 1994 CarswellAlta 179 (Alta C.A.), Hickey v. Hickey, 46 R.F.L. (4th) 1 (S.C.C.) and Marinangeli v. Marinangeli, 2003 CarswellOnt 2691 (C.A.)).

(c) Over-identification

[78] In his 2018 OCL Report, Mr. To commented that, while the children described the time that they spend with the respondent as less positive than their time with the applicant, they all acknowledged that he involves them in activities and they have fun. They all acknowledged that they love the respondent. During the observational visit between the respondent and the children he noted lots of laughter, good-natured teasing and physical and eye contact between them. He noted that that the children have developed strong emotional ties to the respondent.

[79] Notwithstanding these observations, Mr. To reported that, in relation to their views and preferences, the children voiced that they prefer to continue to reside with their mother and not to visit with their father. He stated that the children’s expressed preference of not visiting with their father is of concern and suggested that the children’s views and preferences should be considered in the context of their over-identification of their mother’s feeling towards their father.

[80] On cross-examination by the respondent’s counsel, Mr. To specified that he was not accusing the applicant of alienating the children but offered the view that they have strongly adopted her feelings towards the respondent. He stated that the significance of this over-identification is that, while the children’s views and preferences may be an important factor in considering issues of custody and access, in this case the children’s strong identification with the applicant may be overly affecting the expression of their views and preferences.

[81] On cross-examination by the applicant’s counsel Mr. To acknowledged that his conclusion that the children were over-identifying with the applicant was based solely on what the children told him and that the children had not received any psychotherapy and there were no extensive records of counselling to support it. He also acknowledged that the applicant was very consistent that she wanted the respondent to have time with the children and that access by the respondent has been consistently exercised and that there is no history of the applicant denying access to the respondent. Mr. To agreed that it was possible that the applicant played no part in the over-identification that he described.

[82] In answer to questions from the court, Mr. To stated that the only relevance of his observation in respect of the children’s over-identification with the applicant is to help explain their expressed views and preferences. In particular it helped explain the children’s expression that they would prefer not to visit the respondent or to visit him less often but were unable to articulate their reasons for saying this.

[83] Mr. To stated that, apart from the children’s expressions of their views and preferences, over-identification with the applicant was not manifested from any other observations that he made. In particular he did not see any impact of the over-identification on the quality of the children’s relationships with the respondent which he observed to be positive and close.

[84] Mr. To stated that the issue of over-identification had no relevance to the condition, means, needs or other circumstances of the children or the ability of the parties to meet their needs.

[85] The respondent led no evidence, apart from Mr. To’s comments in the 2018 OCL Report, that the children were over-identifying with the applicant. He pointed to no impact of any suggested over-identification with the applicant on the quality of his relationship with the children or their relationships with his spouse Danielle Thompson.

[86] In my view the observation by Mr. To that the children over-identify with the applicant does not support a finding that there has been a material change in the condition, means, needs or other circumstances of the children since the making of the Hambly Order.

[87] The only evidence relating to the issue of over-identification was that offered by Mr. To. He acknowledged that his observations respecting over-identification were only relevant to explain the expressions of the children’s views and preferences and that it had not had any observable effect on the quality of the children’s relationships with the respondent. He acknowledged that there is no indication of alienation by the applicant and that she was consistent in wanting the children to spend time with the respondent. He agreed that it was possible that the applicant played no part in the existence any over-identification by the children with her.

[88] The close bond that the children have with the respondent and the desire of the applicant that the children spend time with the respondent were supported by other evidence at trial and was not restricted to the evidence of Mr. To.

[89] Moreover it was not clear from Mr. To’s evidence what over-identification consists of in any relevant literature, and in particular whether it is a recognized psychological condition or a syndrome and, if so, how it is tested for and diagnosed. The respondent did not seek to qualify Mr. To as an expert to offer opinion evidence on over-identification in children nor did he call any other expert to testify in relation to it.

[90] I am unable to find that Mr. To’s observation that the children over-identify with the applicant represents a material change in the circumstances of the children.

(d) Medical needs

[91] The respondent submits that the children’s medical needs are not being met by the applicant on three bases, as follows:

(a) that Kayla’s cerebral palsy treatment plan has not been properly followed by the applicant; (b) that the applicant failed to seek medical attention for Jacob prior to his being diagnosed with appendicitis and that, after Jacob’s emergency appendectomy, the applicant administered pain medication to him in accordance with the recommended dosage on the medication bottle rather than in accordance with the discharge notes of the doctor; and (c) Joshua sustained a sunburn on his shoulders and back while visiting his maternal grandparents’ trailer at the lake.

[92] Kayla’s plan of care for her cerebral palsy calls for her to wear Ankle Foot Orthotics (AFO’s) which consist of large plastic casts over her feet which help to stretch the tendons in her feet.

[93] The respondent testified that he has not observed Kayla wearing her AFO’s on access visits to his home for three years and has not seen any claim for AFO’s to his benefit plan until just prior to the trial.

[94] The respondent produced a report from Kayla’s specialist Dr. Burrow to her family doctor reporting on an assessment of Kayla carried out on March 15, 2017.

[95] Dr. Burrow reported that Kayla actually walked without her AFO’s on and “walks quite nicely.” Dr. Burrow commented that Kayla at that point did not wear the AFO’s very often but reported that she did try to encourage Kayla that wearing her AFO’s is something that is really essential and it will help save her low back. Dr. Burrow concluded the report by saying that it was her plan to see Kayla again in one year’s time.

[96] The applicant testified that Kayla had decided that she did not want to wear her AFO’s and would only wear them occasionally. She would take them off on her own because of embarrassment she feels within her peer group. The applicant testified that she has spoken to Kayla’s neurologist about the issue who has encouraged Kayla to wear her AFO’s and has stressed to Kayla how important it is that she do so.

[97] The applicant stated that between two to three years ago Kayla began asking not to take her AFO’s when she went to visit the respondent. She stated that Kayla’s neurologist approved of this.

[98] The applicant stated that Kayla’s neurologist had advised that it is common for young girls in Kayla’s situation to resist wearing their AFO’s because they want to “look cool” and to fit in with their peers.

[99] The applicant testified that in the last few months she has worked on getting a smaller and more stylish pair of AFO’s designed for Kayla which would help her feel at the same level as her peers. The AFO’s are not as high, extending past the ankle, are black and have high heels. She stated that Kayla is looking forward to starting to wear these new AFO’s. The applicant submitted a bill for the new AFO’s to the respondent’s health benefit carrier.

[100] Mr. To, in his 2018 OCL Report, stated that the respondent’s allegations of the applicant being neglectful of the children’s medical needs cannot be established. He stated that, although Kayla should be wearing her AFO's more frequently, there is no indication that it was due to the applicant’s neglect.

[101] In my view the respondent has not shown that the applicant has failed to meet Kayla’s needs in reference to the issue surrounding her wearing her AFO’s. In fact, I find the contrary to be the case. The applicant has been diligent in taking Kayla to her neurologist for regular assessments, has consulted with her neurologist with respect to Kayla’s reluctance to wear her AFO’s consistently and has enlisted her assistance in stressing to Kayla the importance of wearing her AFO’s. Kayla’s neurologist has advised that Kayla is not unique among girls her age and in her situation in resisting wearing AFO’s. The applicant has taken the initiative in arranging for an alternate design for Kayla’s AFO’s that Kayla will be more accepting of. It is noteworthy that the respondent led no expert or other evidence on strategies or steps that the applicant could have taken to address the issue more effectively than the applicant has.

[102] The respondent testified that shortly prior to trial, on November 22, 2018, when the children were on a mid-week access visit to his home, Jacob complained of severe stomach pain. The respondent took him to the Woodstock General Hospital and was referred to the London Health Sciences Centre where he was operated on to remove his appendix.

[103] Jacob was discharged and returned to the applicant’s care. The respondent testified that he provided the applicant with the hospital’s recommended treatment plan which included taking Tylenol every six hours and Advil every six hours, but they could be staggered. He stated that he learned from an email from the applicant that she had administered Tylenol and Advil at four hour intervals rather than six hours. The instructions from the hospital for the administration of painkillers were not put into evidence nor made an exhibit at trial.

[104] The applicant testified that before school on Wednesday November 22, 2018 Jacob reported that he had a headache but told her he did not want to take Advil or Tylenol. He also said that his stomach hurt and thought it might be nerves.

[105] The applicant testified on cross-examination that when Jacob returned to her home following surgery he was in a lot of pain. She administered Tylenol every four hours and Advil every six hours which were the dosage instructions on the medication containers. She administered the pain-killers approximately three times. On re-examination she stated that she followed the discharge notes until Jacob began experiencing “break-out pain” in the middle of the night. It appeared that gas was causing pain to his incision. She administered the pain-killer four hours after the previous dose in order to relieve his pain.

[106] No expert evidence was led by the respondent that the applicant should have sought medical treatment for Jacob based upon the symptoms that he presented in the morning of November 22, 2018. Nor did the respondent lead any expert evidence that it was inappropriate to administer the pain killers following the dosage instructions on the medication or that doing do so exposed Jacob to any risk.

[107] I find that the respondent has not discharged the onus on him of showing that the incident surrounding Jacob’s appendicitis demonstrated that the applicant failed to meet or was incapable of meeting his medical needs.

[108] The final basis for the respondent’s allegation that the applicant has not properly met the children’s medical needs can be readily addressed. The respondent testified that Joshua sustained a serious sunburn while in the care of his maternal grandparents. He alleged that Joshua suffered pain as a result of his maternal grandmother wanting to “teach him a lesson” by allowing him to go swimming without sunscreen.

[109] The applicant’s mother Debra Carlson testified that, while the children were visiting her and her husband at the lake, Joshua, who was then 12 years old, argued with her, refusing to apply sunscreen. She warned him that if he did not apply sunscreen he would get a sunburn. He refused and she let him go swimming without sunscreen.

[110] I am not satisfied that the respondent has satisfied his onus of showing that the incident involving Joshua’s sunburn demonstrated a failure on the part of the applicant to meet the children’s medical needs. The applicant was not involved in the incident.

[111] Even if the action or inaction of Joshua’s maternal grandmother could be ascribed to the applicant (which I do not find), it represents a trivial or short-lived issue which could not justify a variation of the Hambly Order.

Conclusion

[112] On the basis of the foregoing I find, as indicated above, that the respondent has failed to show a material change in the circumstances of the children and that the inquiry may therefore go no further.

[113] The respondent’s motion to change is dismissed.

Costs

[114] The parties are strongly urged to agree upon costs. If they are unable to do so, the applicant may make written submissions as to costs within 21 days of the release of these reasons for decision. The respondent has 14 days after receipt of the applicant’s submissions to respond and the applicant has a further 5 days to reply. Each party’s initial written submissions shall not exceed 5 double-spaced pages, exclusive of Offers to Settle, Bills of Costs or Costs Outlines and authorities, while the applicant’s reply submissions, if any, shall not exceed 2 double-spaced pages. All submissions shall be forwarded to me at my chambers at 85 Frederick Street, 7th Floor, Kitchener, Ontario N2H 0A7. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

D.A. Broad Released: January 22, 2019