Court File and Parties

OSHAWA COURT FILE NO.: FC-19-1434 DATE: 20200729 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: J.D., Applicant AND: M.C., Respondent (Moving Party) AND: P.D. and B.D., Respondents

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL: Julia Moote, Counsel for the Applicant Meryn Steeves, Counsel for the Respondent, M.C. Brian Hall, Counsel for the Respondents, P.D. and B.D.

HEARD: Conference Call – July 23, 2020

Endorsement

Introduction

[1] The respondent, M.C. and the applicant, J.D. (“J.D.”), are the biological parents of K., born on […], 2011. They separated on July 15, 2019.

[2] The respondents P.D. and B.D. (“P.D. and B.D.”) are J.D.’s parents.

[3] The issues in dispute on this motion relate to a final consent order dated December 15, 2019 (“the consent order”). The consent order is only two paragraphs long.

[4] The first paragraph of the consent order grants J.D., P.D. and B.D. joint custody of K.

[5] The second paragraph provides that M.C. “shall have reasonable access on reasonable notice …as agreed by the parties”.

Issues

[6] On June 5, 2020 I granted the respondent, M.C., leave to bring this motion for an order to establish access with K.

[7] The primary issue on this motion is whether M.C. should have access with K. In order to address that issue the court must also consider the correct interpretation of the consent order, its validity, and whether it should be varied or set aside.

Applicable Legal Principles

[8] The test to be applied to change a final custody and access order is set out in section 29 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12:

29. A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

[9] The Supreme Court of Canada’s decision in Gordon v. Goertz, [1996] 2 S.C.R. 27, at paras. 9 – 13 and 17 set out a two stage process that a court must conduct on motions to change custody or access orders:

a. First, the party seeking the variation must meet the threshold requirement of demonstrating that, since the last order was made, there has been a material change in circumstances that affects or is likely to affect the child. The previous order is presumed to be correct. The change must have not been foreseen or reasonably contemplated by the judge who made the original order. The change must be to the condition, needs, means or circumstances of the child and/or the ability of the parent to meet those needs. If this test is not met, the inquiry goes no further.

b. Second, if the threshold is met, then the court must embark on a fresh inquiry into the best interests of the child, having regard to all of the circumstances in section 24 of the Children’s Law Reform Act. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. The court should consider the matter afresh without defaulting to the existing arrangement.

[10] The onus is on the person seeking to establish a material change in circumstances to prove on a balance of probabilities that there is a material change that affects or is likely to affect the best interests of the child. The change cannot be “trivial” or insignificant, it must be material.

[11] The requirement of a material change in circumstances means that a motion to change cannot be an indirect route of appeal from the original custody and access order. The court must assume the correctness of the first order and consider only the changed facts since the first order was made.

[12] There is a long history of conflict between M.C. and J.D. Both M.C. and J.D. have a history of substance abuse, although both have undergone treatment and are now clean. J.D.’s affidavit sets out the history of the abusive nature of their relationship before their separation. M.C.’s affidavit disputes many of these allegations, and presents several of his own complaints. For the purposes of this motion, however, it is not necessary to review the history of their relationship. The parties consented to an order for “reasonable access”. For the purposes of the motion before me, that order must be the starting point of my analysis. The issue before me is not whether M.C. should have been granted “reasonable access” in December 2019, but whether there has been a material change in circumstance since that order was made: Meitine v. Grigoryan, 2019 ONSC 7193, at paras. 13 -15; Norris v. Morocco, 2020 ONSC 2420, at paras. 23 -26.

Positions of the Parties

[13] Both M.C. and J.D. have asked the court to vary the terms of the consent order. M.C.’s motion asks that the consent order be varied to grant him joint custody with J.D. and her parents, and that an access schedule be established. It is clear from his submissions that his primary concern is to re-establish his access with K. The custody issue appears to be a means to achieve that end.

[14] J.D. has asked that the consent order be varied to provide that M.C. be granted supervised access with K., but only after M.C. has undergone a psychological assessment and taken a parenting course. J.D. did not bring a motion to change the consent order, but made this request in her affidavit and through counsel during the hearing of the motion.

[15] P.D. and B.D. focus on the phrase “as agreed by the parties” and take the position that “reasonable access” in the consent order should be interpreted as meaning “supervised access” because “reasonable access” is subject to the agreement of the parties, and supervised access is all they will agree to. If they do not agree to access, there will be no access. On that basis, they argue, no change to or variation of the consent order is required. They argue that there has been no material change in circumstances since the consent order was made, and that the consent order should be enforced in accordance with the interpretation they have advanced.

[16] P.D. and B.D. have also brought a motion for an order appointing the Office of the Children’s Lawyer to conduct an assessment of K. to determine his best interests. This motion is supported by J.D. and not opposed by M.C.

[17] Following their separation, counsel for J.D. wrote to M.C. on September 30, 2019 indicating J.D.’s desire to resolve custody and access arrangements “as amicably and quickly as possible”. She stated:

I am advised by J.D., B.D. and P.D. that your goal for commencing your application was to have a relationship with K. and be able to spend time with him. J.D. shares this goal.

J.D. is proposing that you have reasonable access on reasonable notice as decided between you, J.D., B.D. and P.D. This achieves your goal of maintaining your relationship with K. and being able to spend time with him.

[18] J.D., P.D. and B.D. were all represented by counsel when they signed the consent order. Indeed, the draft order was prepared by counsel for J.D. M.C. was not represented by counsel, but was urged on more than one occasion to seek independent legal advice, and he expressly declined to do so.

[19] M.C. signed the consent to the final order on October 8, 2019.

[20] P.D. and B.D. signed the consent on October 11, 2019.

[21] J.D. signed the consent on October 16, 2019.

[22] The consent order was filed with the court on October 29, 2019, and issued on December 15, 2019.

Implementation of the Consent Order

[23] M.C.’s affidavit states that immediately prior to the filing of the consent order, he enjoyed regular access with K. where he and K. would attend movies, restaurants and other public places. He visited K. on October 2, 5, 12, 19, and 26, 2019. M.C. alleges that between October 29 and December 8, 2019, none of the D.s (J.D., P.D. and B.D.) responded to his requests to see K.

[24] Following a discussion with J.D. on December 8, 2019, he was allowed to see K. on only four occasions: December 14, 2019, January 5, February 15 and February 29, 2020. J.D. insisted on staying with M.C. and K. on these visits. M.C. objected to J.D.’s supervision, taking the position that there was nothing in the consent order requiring supervised access.

[25] After the COVID-19 restrictions were put in place, J.D., through her counsel, agreed on April 23, 2020, to allow M.C. to have Facetime conversations with their son twice a week. J.D. stopped answering these calls on May 1, 2020, and has not agreed to any access since that date.

[26] On May 26, 2020, M.C. was advised by counsel for P.D. and B.D. that further access, including video conferencing, was suspended. Counsel took the position that the child was “extremely upset and wired beyond description after the sessions”. He advised that his clients would obtain a report from the child’s play therapist, and once a report was obtained, they would be “in further contact”.

Analysis - Material Change in Circumstances

[27] J.D., P.D. and B.D. take the position that M.C.’s continued access with K. is not in K.’s best interest.

[28] J.D. takes the position that while she was initially supportive of M.C.’s parenting time with K., the access visits have been distressing for K. and have caused him great psychological and emotional harm.

[29] The D.s (J.D., P.D. and B.D.) have attached various medical reports indicating that K. has multiple difficulties including elevated phobias, separation anxiety, elevated levels of developmental delay and an elevated preoccupation with death. When he was four years old he was the victim of sexual abuse by an older child. He struggles with emotional regulation and he easily and frequently loses his temper and denies requests made by adults. He has temper tantrums and low self-esteem. He has been diagnosed with excessive anxiety, obsessive thoughts, oppositional defiance disorder, and a persistent pattern of hyperactivity and impulsivity.

[30] J.D. alleges that M.C. was not able to offer K. a child friendly environment during his access visits, and that the visits were causing severe regression and trauma. When J.D. attended the access visits in January and February 2020, M.C. was unable to control his temper in front of K., and would enter into a “fit of rage” towards her, swearing at her in front of K. J.D. has produced a number of text messages from M.C. in which M.C. is abusive and bullying, calling her horrible names and demonstrating serious anger management issues.

[31] J.D. has attached to her affidavit a letter dated June 10, 2020 from Ms. Solas, a registered psychotherapist, who has been providing play therapy to K. since July 2019. Her letter states:

K. is an active, energetic and creative child…He wants to engage with others and have friends, but lacks the development, skills, and awareness to maintain healthy, safe and satisfying relationships at this time. He often has emotional outbursts that include yelling, aggressive gestures made to those around him, and throwing things. K.’s play behaviour and the tone to his speech reflect that of a much younger child. During the sessions he rarely makes eye contact, and often does not respond or engage in verbal dialogue with myself. K. has difficulty with transitions, has trouble following requests of others, is very impulsive, and acts aggressively when he doesn’t get his own way. K. has great difficulty regulating his emotions…

K’s progress in therapy has been very slow and has had many setbacks due, in part, to reported changes in his environment such as moving out of his original family home, change in caregivers including no contact with his mom when she was in rehab, no contact with his father for periods of time, resuming contact with his father via Facetime, mom returning home, several changes of schools, as well as the cancellation of all his important daily activities including school, Jiu Jitsu and Mui Tai. Since mid-March 2020 I have noted a marked decrease in K.’s ability to self-regulate, as well as an increase in his aggressive, violent play and images in his art.

[32] The psychotherapist notes that in May 2020 she made recommendations that K. be seen by a child psychiatrist to be assessed for serious mental health issues and clarification and/or further diagnosis. She has indicated her concerns about the safety of K. “and those around him due to escalation of his distress, dysregulation, violent play and behaviour, as well as physical threats made towards his family members”. She recommends that K. receive intensive therapy and that his caregivers take special training in how to care for a child with severe emotional and mental health issues.

[33] I have quoted extensively from this report because it presents very detailed and serious concerns regarding K.’s serious mental health issues. Ms. Solas sets out a number of recommendations to support K.’s well being. Nowhere, however, does Ms. Solas recommend that M.C.’s access to K. be terminated or subject to supervision, nor does she suggest that ending K.’s contact with his father is in K.’s best interest.

[34] B.D. has attached other medical reports to her affidavit. Most of these reports pre-date the December 2019 consent order, confirming that K.’s emotional and mental health issues were identified and known to the parties prior to the parties’ consent to that order.

[35] One recent report is the 24-page report by Dr. Khattak from the Hospital for Sick Children. This report confirms many of the observations made by Ms. Solas, and indicates that many of K.’s symptoms are consistent with Autism Spectrum Disorder. Dr. Khattak’s examination of K. was virtual because of COVID-19 protocols, and a confirmation of that diagnosis will have to wait until K. can be tested in person. Dr. Khattak also confirmed the diagnosis of Attention Deficit Hyperactivity Disorder (ADHD), Oppositional Defiant Disorder (ODD), Generalized Anxiety Disorder, Posttraumatic Stress Disorder, and several learning disorders, all of which had been previously diagnosed.

[36] Dr. Khattak’s report lists a number of recommendations for future treatment and care of K. One of these recommendations is that all of K.’s caregivers take parent training courses to learn how to manage with K.’s ADHD and ODD.

[37] Interestingly, Dr. Khattak’s report indicates that children with ADHD and ODD often benefit from martial arts training because such physical activities help them get their energies out in healthy ways and focus their attention on specific movement and skill. He states: “The benefits of physical activities is endless”. This is the kind of activity that M.C., who is a personal trainer, has indicated he wants to participate in with K.

[38] Again, nowhere, does Dr. Khattak recommend that M.C.’s access to K. be terminated or subject to supervision, nor does he suggest that ending K.’s contact with his father is in K.’s best interest.

[39] The only medical record that makes any specific reference to K.’s relationship with M.C. is a Hospital For Sick Children Emergency Intake Form dated June 3, 2020, when K. was taken to the hospital by his grandparents because of their concerns regarding his behaviour. The form states:

When I spoke with patient alone:

Informs me he lives at home with mom, grandma and grandpa

Doesn’t see dad very much

States that when he does see dad he feels safe. I asked multiple times regarding possible verbal, sexual and physical abuse – patient denies any form of abuse.

Also denies any abuse from any caregivers.

[40] It is clear that J.D., P.D. and B.D. now believe that M.C.’s access visits with K. are not in K.’s best interest. They have not, however, provided any evidence of a material change in circumstances since the consent order was made. The medical and psychological reports appended to their affidavits (most of which predate the consent order) do not address the issue of access. Nor is there any basis to infer from those reports that a child with K.’s diagnoses should be denied a relationship with his father.

[41] I am not unmindful of the strained relationship between M.C. and J.D. The evidence indicates that M.C. does have anger management issues, and his text messages to J.D. and her parents are often abusive. These are valid concerns that will have to be addressed by M.C. I am not convinced, however, that, at this point, these concerns require a denial of access or supervised access.

Interpretation of the Consent Order

[42] P.D. and B.D. take the position that the consent order is fine as written, but only if their interpretation of the order – which makes M.C.’s access subject to their agreement – is accepted. I find that their interpretation of the agreement is contrary to both the plain wording of the order and the spirit of the order, which was fairly set out by J.D.’s counsel in her letter of September 30, 2019 to M.C.: to enable M.C. to have “a relationship with K. and be able to spend time with him” (quoted above at para. 17).

[43] “Reasonable access on reasonable notice” is a standard term frequently found in custody and access agreements. While it lacks precision, it has the advantage of providing flexibility in circumstances where one or both parents have shift work or other uncertain work schedules (such as M.C.), and a fixed access schedule is not practical. It necessarily requires some additional cooperation and agreement between the parties to fill in the details and make it work. Where parties can cooperate, this flexibility may work to everyone’s advantage. Where parties are not able to cooperate, it usually results in further litigation. The devil is often in the details.

[44] When an agreement provides for “reasonable access on reasonable notice as agreed by the parties”, the fact that there will be access is agreed to as an essential term of the agreement. The phrase “as agreed by the parties” relates to the incidental details of access necessary to make the agreement operative. These include incidental details such as day(s) of the week, starting time and duration, or location of pick up and drop off.

[45] In Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494, the Supreme Court of Canada recognized a general organizing principle of contract law to be good faith contractual performance. The Court held that there is a common law duty which applies to all contracts to act honestly in the performance of contractual obligations: see the reasons of Cromwell J. at paras. 33, 60, 62, 63 and 93.

[46] While the Supreme Court in Bhasin was dealing with commercial parties, the principle must apply with even greater force in the family law context. In this regard, I adopt the statement of Gray J. in Lopatowski v. Lopatowski, 2018 ONSC 824, at paras. 57 and 58:

The Court made it clear that these principles apply to all types of contractual relationships. I see no reason why they should not apply to family law contractual relationships, and indeed in some ways they perhaps should be applied even more strongly to family law contractual relationships.

…The principle of good faith and honest contractual performance would require that the parties take the steps necessary to make that agreement operative.

[47] The interpretation of the consent order advanced by P.D. and B.D. is inconsistent with the principle of good faith contractual performance.

Status of the Consent Order

[48] Neither M.C. nor J.D. are content with the wording of the consent order. They have both asked that the terms relating to access be changed: M.C. wants a specific access schedule set out, J.D. wants access denied unless certain conditions are met.

[49] Once B.D. and P.D.’s interpretation of the consent order is rejected, their support for the consent order vanishes, and we are left with the fact that none of the parties continue to support the consent order.

[50] In D’Onofrio v. Advantage Car & Truck Rentals Limited, 2017 ONCA 5, the Ontario Court of Appeal stated, at para. 44:

A consent judgment is not a judicial determination on the merits of a case but only an agreement elevated to an order on consent. The basis for the order is the parties’ agreement, not a judge’s determination of what is fair and reasonable in the circumstances: Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295, at para. 64.

[51] Once all of the parties to the consent order ask the court to amend or set aside the order, the consent order has served its initial purpose and should be set aside on the consent of the parties. While they disagree on what should happen next, they all agree that the consent order is not working.

[52] As indicated, I interpret the consent order so that “access” represents the essential term of the agreement, and that what is left to be agreed upon are the incidental elements to make access work. In the alternative, if P.D. and B.D.’s interpretation were correct, then, in my view, the order would have to be set aside on the basis of common law contractual principles. If B.D. and P.D.’s interpretation of the consent order were correct, the agreement on which it was based would be no more than an unenforceable “agreement to agree”.

[53] In McCowan v. McCowan (1995), 24 O.R. (3d) 707, the Court of Appeal stated, at para. 19:

[I]t is well established that a consent judgment may be set aside on the same grounds as the agreement giving rise to the judgment. These grounds go to the formation of the agreement, not to its subsequent performance. Evidence of non- performance may, however, be relevant to the issue whether the underlying agreement was so tainted in its formation that it should be invalidated.

[54] Thus, a consent order may be set aside if the agreement giving rise to it is unenforceable at common law.

[55] It is a fundamental principle of contract law that an agreement must state the essential terms with sufficient certainty, otherwise there is no agreement. The contractual principle of “certainty of terms” was described by the Ontario Court of Appeal in Bawitko Investments Ltd v. Kernels Popcorn Ltd (1991), 79 D.L.R. (4th) 97, at pp. 13 and 14:

However, when the original contract is incomplete because essential provisions intended to govern the contractual relationship have not been settled or agreed upon; or the contract is too general or uncertain to be valid in itself and is dependent on the making of a formal contract; or the understanding or intention of the parties, even if there is no uncertainty as to the terms of their agreement, is that their legal obligations are to be deferred until a formal contract has been approved and executed, the original or preliminary agreement cannot constitute an enforceable contract. In other words, in such circumstances the “contract to make a contract” is not a contract at all.

[…] If no agreement in respect to essential terms has been reached or the terms have not been agreed to with reasonable certainty, it can only be concluded that such terms were to be agreed upon at a later date and until that time there would be no completed agreement.

[56] See also: Bogue v. Bogue (1999), 46 O.R. (3d) 1, at para. 12; Georgian Windpower Corp. v. Stelco Inc., 2012 ONSC 3759, at paras. 121 – 122 (citations omitted):

It has long been held that agreements to agree or negotiate are not enforceable … As Lord Ackner stated in Walford, at p. 138 A.C., “The reason why an agreement to negotiate, like an agreement to agree, is unenforceable, is simply because it lacks necessary certainty.”

In order for there to be a binding contract, the parties must agree on all of the essential terms of the agreement. The rationale is similar to that in respect of agreements to agree or negotiate. An agreement which lacks the essential terms is too uncertain to be enforceable.

[57] If P.D. and B.D.’s interpretation of the consent order is correct, none of the essential terms of the agreement were agreed to. Even the meaning of “reasonable access” was subject to future agreement. If this interpretation were correct, I would set aside the consent order on the basis that it is an unenforceable “agreement to agree”.

Conclusion

[58] The consent order contains only two paragraphs, and it is clearly intended to be a package deal. M.C. agreed to grant custody to J.D., P.D. and B.D. because they agreed to his access and continued relationship with K. If the provision relating to access is set aside, so too must the provision relating to custody. Accordingly, the consent order must be set aside in its entirety.

[59] In my view, the parties would benefit from a case conference before any additional motions are heard or any final orders are made. As indicated, the parties have also requested an order appointing the Office of the Children’s Lawyer to conduct an assessment of K. to determine his best interests. Given K.’s serious mental health issues, and the history of conflict between M.C. and J.D., I agree that such intervention would be beneficial in this case. Clearly no final orders should be made at this stage of the proceedings.

[60] While I am setting aside the consent order, I am not persuaded that there should be any change in custody at this stage of the proceedings.

[61] In his original Application, M.C. requested access with K. once a week for four hours. While his notice of motion requests overnight weekend access, the access visits in 2019 and 2020 were all daytime visits. For the time being access should be continued on that basis.

[62] Accordingly, I make the following orders:

a. The order of December 15, 2019 is set aside. Paragraph one of that order granting J.D., B.D. and P.D. joint custody of the child K., born […], 2011, is continued on a temporary, without prejudice basis until further order of the court or agreement of the parties.

b. The respondent, M.C., shall have parenting time with K. in accordance with the following schedule, on a temporary, without prejudice basis until further order of the court or agreement of the parties:

i. Wednesdays from 4:00 p.m. until 7:00 p.m. commencing August 5, 2020.

ii. Every alternate Saturday or Sunday (as chosen by M.C. after consultation with the D.s (J.D., P.D. and B.D.) from 1:00 p.m. to 7:00 p.m. commencing the August 8, 2020 weekend.

iii. All exchanges are to occur outside the [redacted for publication].

iv. Telephone access with K. on Tuesdays at 4:00 p.m. and any additional time K. may request. The applicant, J.D., shall facilitate this telephone access.

[63] The parties have also consented to the following order:

c. Any person involved in K.’s care shall provide information directly to M.C. pursuant to s. 20(5) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12.

[64] In addition, this court requests the Office of the Children’s Lawyer to conduct an investigation and report and make recommendations to the court on all matters concerning custody of or access to the child K., born […], 2011.

[65] As noted above, several of the professionals dealing with K.’s mental health issues have recommended that all of K.’s caregivers take parent training courses to learn how to manage with K.’s ADHD and ODD. Based on this recommendation, I make the following order:

d. Each of the parties to this case shall enroll in a parent training course to learn how to manage K.’s ADHD and ODD. The parties shall provide the court with documentation that they have enrolled in such a course at the case conference scheduled for September 18, 2020.

[66] This case will proceed to a case conference on September 18, 2020 at 11:30 a.m.

[67] If the parties are unable to agree on costs, the respondent, M.C., shall file costs submissions of no more than 3 pages, plus costs outline and any offers to settle, within 20 days of the release of this decision. J.D. and B.D. and P.D. may file reply submissions on the same terms (3 pages for J.D., 3 pages for B.D. and P.D.) within 20 days thereafter.

Justice R.E. Charney Date: July 29, 2020