COURT FILE NO.: FC-16-2654-1 DATE: 20200304

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ANNA BLOOM Applicant – and – ROBERT BLOOM Respondent

Counsel: Michael Rappaport, for the Applicant John Summers, for the Respondent

HEARD: March 3, 2020

REASONS FOR DECISION

Audet J.

[1] The respondent father brings a motion for summary judgment dismissing the applicant mother’s Motion to Change the Final Divorce Order of Justice Shelston made on January 11, 2019.

[2] During the months of November and December 2018, the parties were involved in an eleven-day trial which addressed the issues of parenting, child support, spousal support and property division. At the end of this lengthy trial, Justice Shelston ordered, among other things, that:

• The parties shall have joint custody of the two children of the marriage, namely, Aiddan (then age 13) and Ethan (then 10);
• The children shall reside an equal amount of time with both parents on a week on/week off basis;
• Aiddan and Ethan shall continue counselling with Dr. Judith Goldstein for so long as she recommends;
• The father and the children shall continue to see Dr. Judith Goldstein to help the children be less apprehensive in expressing their needs and to help the father become more aware and sensitive to the children’s needs;
• Commencing on January 1, 2019, based on the father’s income of $170,363, the mother’s income of $28,000 and the children’s shared custody arrangement, the father shall pay table child support in the amount of $1,897 per month child support based on the set-off method, to be adjusted on a yearly basis;
• Commencing on January 1, 2019 and based on the father’s income of $170,636, the mother’s income of $15,000 and the children’s shared custody arrangement, the father shall pay $2,425 per month in spousal support for a period of 15 years from the date of commencement of spousal support until June 1, 2032.

[3] On October 21, 2019, less then one year after Justice Shelton made the above Order, the mother brought a Motion to Change his Final Order in the following ways:

• That she be granted sole custody of both children;
• That the father be granted access in accordance with the recommendations of the Office of the Children’s Lawyer, which she seeks to have the court appoint;
• That the father be required to pay full table child support to her for the two children;
• That spousal support be payable to her until she turns 65 years of age on December 3, 2039.

[4] The father did not serve and file a Response to the mother’s Motion to Change. Instead, and as permitted by Justice Shelston (who remained involved post-trial for various reasons), he filed this Summary Judgment Motion seeking the dismissal of the mother’s Motion to Change on the ground that the mother’s materials do not disclose a material change in circumstances.

Legal Framework

Variation proceedings

[5] The legal principles applicable to the variation of a final order related to parenting or support are set out in s. 17 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.):

Order for variation, rescission or suspension

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

a. a support order or any provision thereof on application by either or both former spouses; or

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

Factors for spousal support order

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

Factors for custody orders

(5) before the court makes a variation order in respect of the custody order, the court shall satisfy itself that there has been a change in the conditions, means, needs and 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.

[6] The test for a “material change”, as confirmed by the Supreme Court of Canada in L.M.P. v. L.S., 2011 SCC 64, is a change that is substantial, continuing and that “if known at the time, would likely have resulted in a different order”. This test was further explained in Dedes v. Dedes, 2015 BCCA 194, where the British Columbia Court of Appeal stated:

25 As articulated in L.M.P., the test for material change is based not on what one party knew or reasonably foresaw, but rather on what the parties actually contemplated at the time the order was entered by agreement. A function of the material change threshold is to prevent parties from re-litigating issues that were already considered and rejected; in such cases an application to vary would amount to an appeal of the original order.

Summary judgment motions

[7] In Gough v. Gough, 2019 ONSC 5441, I summarize the legal principles applicable to summary judgment motions as follows:

31 Summary judgment motions are governed by Rule 16 of the Family Law Rules.

32 The burden of proof is on the party moving for summary judgment. Pursuant to sub-rule 16 (4), the party moving for summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

33 Pursuant to sub-rule 16 (4.1), the responding party to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all the evidence they would be able to adduce at trial (Children’s Aid Society of Toronto v. T. (K.), [2000] O.J. No. 4736 (Ont. C.J.); Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 (Ont. S.C.J.)).

34 Although sub-rule 16(4.1) sets out the obligation of the respondent to the motion to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial”, this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial (Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 (Ont. C.A.), No. 2 of para. 80).

35 Sub-rule 16 (6) provides that if there is no genuine issue requiring a trial of a claim or defense, the court shall make a final order accordingly.

36 Sub-rule 16 (6.1) provides that in determining if there is no genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be only exercised at trial:

1. Weighing the evidence
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

37 Pursuant to sub-rule 16 (6.2) the court may, for the purpose of exercising any of the powers set out in sub-rule 16 (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

38 In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (S.C.C.), the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted.

39 Hryniak sets out that the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in sub-rule 16 (6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required.

40 There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak — para. 49). As the Supreme Court stated at para. 50 of Hryniak, “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” (Kawartha, para. 63).

Analysis

Parenting

[8] I find that there has been no material change in circumstances justifying a variation of the parenting provisions of Justice Shelston’s Final Divorce Order. Simply put, the mother’s allegations are the same allegations that she made a trial. She is making the same arguments using the same facts and is simply trying to relitigate the same issues.

[9] The parents’ relationship prior to and following their separation was extremely high conflict. In the context of the trial before Justice Shelston, the mother made numerous allegations against the father with regards to his ability to care for the children such as his alleged anger management issues and abusive behaviour. She alleged that the children did not want to visit with their father and were in distress emotionally and psychologically, as well as many other allegations of this nature to support her request for sole custody.

[10] In a 50-page decision, the trial judge did not accept any of those allegations. He came to the conclusion that while the mother was a loving and caring mother to her children, her anger towards the father had impaired her judgment and affected her ability to have insight as to what was in the best interests of her children. He found that the mother was denigrating the father to the children, that she had unilaterally changed a court ordered temporary parenting regime, that she had failed to engage Ethan in counselling with Dr. Goldstein as ordered. He expressed significant concerns that, if granted sole custody, the mother would terminate the court-ordered counselling with Dr. Goldstein and would attempt to minimize the father’s role in the children’s lives.

[11] In arriving at the above conclusions, and in making the orders that he made, the trial judge relied (among other things) on the evidence of Dr. Goldstein as well as on a comprehensive custody and access assessment completed by Dr. Francis Smyth a year before, on consent of the parties.

[12] In response to the father’s Summary Judgment Motion, the mother filed two Affidavits to support her contention that material changes in circumstances have occurred since Justice Shelton’s Final Order: an Affidavit sworn by her on February 20, 2020 as well as an Affidavit sworn by her mother, Penelope Karhinen, sworn on the same day.

[13] With regards to parenting issues, almost all of the mother’s Affidavit focuses on the following:

• events that took place prior to the trial before Justice Shelston, and which were fully considered by him in arriving at his decision, and;
• all the reasons why in her opinion the custody and access assessment performed by Dr. Smyth was completely flawed.

[14] Out of the 104 paragraphs contained in the mother’s Affidavit, only 12 focus on post-separation events. All of those paragraphs contain allegations, identical to the ones made by the mother at trial, to the effect that the father continually denigrates her in front of the children, that the children suffer meltdowns when required to go to and during visits with their father, that they call her begging to go home, and that they are generally refusing to visit and be with their father.

[15] The mother’s allegations in that regard are significantly undermined by the following uncontested evidence:

• Notwithstanding the clear wording of Justice Shelston’s Order, the mother removed Ethan from counselling with Dr. Goldstein (about a month after the Final Order was made). At the mother’s own request, the father ultimately agreed to Ethan beginning counselling sessions with Dr. Kelly Savage, as he felt that Ethan desperately needed counselling;
• After having been involved with this family for a few months, Dr. Savage withdrew her services to this family based on her concerns about:
  • the mother failing to obtain medical treatment as well as counselling for Ethan in a timely fashion despite a court order;
  • the mother consistently firing counsellors who identify her behaviours which are contributing to the child’s psychological and medical issues;
  • the mother undermining any attempts on the father (or therapists) to set the necessary boundaries with the children;
  • the mother failing to co-parent, to follow medical advice, psychologists advice, or court orders regarding the best interests of the child;
  • the mother sharing a bed with a 12-year-old son which is causing him additional psychological trauma.
• Dr. Savage’s concerns were such that she felt compelled to report them to the Children’s Aid Society in a very detailed letter, prompting the involvement of the Society with this family.

[16] I have thoroughly reviewed the Affidavit of the children’s grandmother, and find that her evidence, on its face, is so clearly devoid of any objectivity that it is simply and completely unbelievable and unreliable. Not only is the maternal grandmother’s evidence completely aligned with the mother, in that she reiterates the same allegations as the ones made by the mother without any corroborating or supporting evidence, the bulk of her testimony focuses on pre-trial events and allegations that were fully explored by the trial judge. She spends a considerable amount of time justifying the mother’s unilateral decision to terminate the boys’ counselling with Dr. Goldstein, against the clear order in place requiring her to do so.

[17] Further, much of the grandmother’s Affidavit comprises of her own personal opinions about the many deficiencies and errors committed by Dr. Smyth in her assessment, by Justice Shelton in his Decision, and by Dr. Savage in her involvement with this family. This is despite the fact that Dr. Smyth was chosen jointly by the parties, and that Dr. Savage was chosen unilaterally by the mother (although eventually on consent of the father). Her evidence is replete with inadmissible hearsay evidence and lengthy description of events which, based on the evidence before me, have occurred when she was not even present. Her evidence is based on unsupported allegations and inadmissible evidence tailored to support her and the mother’s joint position that “the children do not want to continue with the 50/50 custody arrangement”.

[18] Based on the evidence before me, I find that there is no genuine issue requiring a trial in this case, as the evidence before me clearly does not establish that there has been any change in the circumstances of the parties or the children since the Final Order of Shelston J. was made. Quite to the contrary, and sadly for these children, it appears that nothing at all has changed since their parents completed an eleven-day trial before Shelston J.

Spousal Support

[19] There is absolutely no evidence before me that would justify changing the duration of spousal support ordered by the trial judge, as sought by the mother. At trial, the mother was seeking spousal support until she reached 65 years of age. Her position was expressly rejected by the trial judge who imposed a termination after 15 years. The mother’s attempt to vary this provision of the trial judge’s order in the context of this Motion to Change is a disguised attempt to appeal it, which is improper and hereby dismissed.

The Father’s Motion to Change Child Support

[20] In the context of his Summary Judgment Motion, the father seeks to vary the parties’ child support obligations, in accordance with the yearly review provisions contained in the Final Order.

[21] As stated earlier, the father has not filed a response to the mother’s Motion to Change, although Shelston J. has left me the discretion to permit him to do so (by Endorsement made on November 4, 2019). The issue of the yearly review of child support is not currently before me, nor do I have the evidentiary basis upon which to adjust the parties’ support obligations. Although I acknowledge having been provided with the parties’ 2018 Income Tax Returns, since a variation of the quantum of child support may impact on the quantum (not the duration) of the father’s spousal support obligations, this issue cannot be determined on the basis of the evidentiary record before me.

[22] Therefore, an order shall issue granting leave to the father to serve and file his Response to Motion to Change, to seek the yearly review of support. This shall be done within 15 days. The mother shall have 15 days thereafter to file her reply, if any.

[23] To be clear, the only issues permitted to be addressed in the context of this Motion to Change are the quantum (not the duration) of the parties’ child and spousal support, in light of the yearly review provisions contained in the Final Order.

Costs

[24] The father is clearly the successful party in this motion. If the parties cannot agree on costs, I will accept brief written submissions from them not exceeding three pages (exclusive of Bills of Costs and Offers to Settle). The father will have 15 days from the date of this Decision to provide his submissions and the mother will have 15 days thereafter to do the same. The father will be allowed a brief reply if deemed necessary, not exceeding one page, which shall be provided within 7 days from receipt of the mother’s submissions.

Madam Justice Julie Audet Released: March 4, 2020