Court File and Parties

COURT FILE NO.: 41653/18

DATE: 2020-09-28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nikola RADOJEVIC, Applicant

AND:

Amy Laura Guenette RADOJEVIC, Respondent

BEFORE: Kurz J.

COUNSEL: Darryl A. Willer, for the Applicant

Fareen Jamal and Sanaz Golestani, for the Respondent

HEARD: September 22, 2020

ENDORSEMENT

[1] The Applicant father (“the father”) moves for an order varying the temporary order of Chozik J. of December 17, 2018, which granted the Respondent mother (“the mother”) primary residence of the parties’ two children. That arrangement is subject to the father’s access each Tuesday overnight, alternate Thursdays overnight and alternate weekends from Friday to Sunday evening.

[2] The father seeks an order that grants him joint and shared custody of the children on a 2-2-5-5 basis. He argues that the test for the change he seeks is not simply a material change in circumstances, but something closer to a simple best interests test. He argues that his proposed arrangement is in the best interests of the children for two reasons: first, it adheres to the Divorce Act’s maximum contact principle and second, it has less changeovers than the current order. The father adds that if the test is material change, there has been one. He cites the facts that he is no longer commuting to Toronto for work, he lives within one kilometer from the mother, and that the mother was unwilling to grant him shared parenting during the pandemic.

[3] The mother resists this motion and brings a cross-motion. She argues that there has been no material change in circumstances at all. In fact, this is the third time that in less than two years that he has sought an interim shared parenting arrangement. It is also the second time in less than a year that he has attempted to change the Chozik J. order. However, on November 29, 2019, Fowler Byrne J. dismissed his motion, finding that the test is indeed material change and that the father had demonstrated no such change. The mother states that even with the advent of the pandemic, Fowler Byrne J.’s finding remains true.

[4] The mother also moves for her own relief. She seeks:

1. Disclosure of all applications for short and long-term disability benefits, including any medical records, discharge statements, or correspondence related to same;
2. Details of all government benefits received by the father in 2020;
3. Details of all of his attempts to find employment since February 2020; and
4. The appointment of the Office of the Children’s Lawyer to conduct a Voice of the Child (“VoC”) report.

[5] For the reasons that follow, I find that there is no material change in circumstances and that even if there were, they do not compel a change in the interim parenting arrangements. Rather, the issues that the father raises are best left to trial. I will place this matter on the Spring 2021 blitz list. I grant the mother the disclosure that she requests. She had originally requested a report from the father’s psychiatrist, having previously requested such a report without success. But such a report, dated September 9, 2020, has now been prepared for this motion. It is an exhibit to the father’s reply affidavit. On consent, I request that the OCL perform a VoC report. I set out terms for a private VoC report if the OCL refuses

Background

[6] The parties were married for ten years, separating on July 14, 2018. They continued to live separate and apart in the same home until September 2018, when the father left the home. The parties have two children, Joshua, born October 23, 2009 and Ryan, born January 15, 2012. Joshua will be eleven in one month while Ryan is eight years old.

[7] Both parties are presently unemployed. The father lost his job in February 2020 but had been off work for almost a year before that, having suffered from a major depressive episode. That condition left him hospitalized for about two months between March and May 2019. The father says that he is presently deciding on which of two job offers he should accept. Both will allow him to work at home.

[8] The mother is presently scheduled to start employment on October 5, 2020. In light of the pandemic, she will also be working from home.

December 17, 2020 Motion Before Chozik J.

[9] On December 17, 2020, Chozik J. heard the father’s motion, requesting a temporary equal and shared parenting arrangement within the context of a “nesting” order at the parties’ matrimonial home. Chozik J. considered the maximum contact principle within the context of the determination of the children’s best interests, as she is required to do under s. 16(10) of the Divorce Act (Rigillo v. Rigillo, 2019 ONCA 548, at para.10).

[10] Chozik J. found that before the father left the home, he was a “prominent and involved figure in the children’s lives”, while the mother was a stay at home parent. Chozik J. felt that the conflict between the parties was too high to allow for a nesting arrangement. She instead found that it was in the best interests of the children to implement a disposition that allowed for the mother’s primary care of the children, subject to the father’s access each Tuesday and alternate Thursdays, overnight, plus alternate weekends from Friday to Sunday at 8:00 p.m. Chozik J also found that the mother puts the children’s best interests at a high priority. She also found that it was important for the father to continue to play an important role in the children’s lives and that her order allowed him to do so.

November 18, 2020 Motion Before Fowler-Byrne J.

[11] On November 18, 2019, the father moved for an order varying the Chozik J. order, granting him equal shared parenting time with the children. Fowler Byre J. dismissed the motion, finding no material change in circumstances. Highlights of her decision include the following:

1. Access following the time of the Chozik J. order had not gone well, in large measure because of the father’s mental health and his two-month hospitalization.
2. The mother was concerned about the father’s, mental health, even six months following his release from hospital. She wanted to gradually increase his access. At that time of the motion, all but the alternate Thursdays in the Chozik J. order had been re-implemented. She wanted to delay the return to those dates for some months. She claimed that the children complained about aspects of the access.
3. Fowler Byrne J. reviewed a letter from the father’s psychiatrist, Dr. Alatishe, of August 8, 2019. Based on that report, Fowler Byrne J. was satisfied that the father’s mental health was improving and that his current status did not impede his parenting ability.

[12] Despite the improvement in the father’s mental health by the time of the motion before her, Fowler Byrne J. declined to change the Chozik J. order.

[13] She found that the test for a motion to change an interim parenting order was set out in Miranda v. Miranda, 2013 ONSC 4707 (S.C.J.). There, Mitrow J. stated that the test is a material change in circumstances that results in a compelling reason to make a change in the previous order (see para. 26-28). Mitrow J. wrote at para. 26:

26 A party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (Ont. S.C.J.) at para. 14. Variation of interim custody and access orders will usually only succeed if a child is at risk, or for some other compelling reasons. There is a presumption in favour of the status quo absent compelling reason to change the status quo: Gusikoski v. Gusikoski, 2001 CarswellSask 323 (Sask. Q.B.) at para. 10. In Green v. Cairns, 2004 CarswellOnt 2322 (Ont. S.C.J.) at para. 14, Wood J. referred to the well founded reluctance by courts to vary interim orders on an interim basis and stated that an interim order should only be varied on an interim basis where the evidence establishes “clearly and unequivocally” that the present arrangement is not in a child’s best interests. In Greve v. Brighton, 2011 ONSC 4996, 2011 CarswellOnt 8814 (Ont. S.C.J.), Ricchetti J., after reviewing various authorities, states at para. 24 that on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the child’s best interests.

[14] Fowler Byrne J. found neither a material change in circumstances nor a compelling reason to change the Chozik J. order. It was not clear and unequivocal that a change was in the children’s best interests. Chozik J. had already considered the maximum contact principle. The fact that the father had moved closer to the children did not change the best interests calculus. However, Fowler Byrne J. did reinstate all of the access ordered by Chozik J.

Analysis

[15] The father argues that the test for the variation of an interim parenting order is not as strict as the one adopted by Fowler Byrne J. He states that it is essentially a best interests test, presumably informed by any materials changes in circumstances. He relies on Calebrese v. Calebrese, 2016 ONSC 3077. There, Henderson J. wrote:

27 Regarding the second legal issue, I find that there must be some compelling reason for a court to change an existing temporary custody/access/parenting order prior to the trial. However, unlike other types of motions to change, it is not a prerequisite in a motion to change a temporary custody/access/parenting order for a motion’s judge to adhere to a strict material change in circumstances test. The overriding principle in all custody/access/parenting proceedings, whether final or temporary, is that a court should make an order that is in the best interests of the child.

[16] While quoting that passage, the father neglects to refer to the two following paragraphs. In them, Henderson J. walks back, to a great extent, the notion of a free-flowing right to vary interim parenting terms at any time based only on a different view of the child’s current best interests. Henderson J. wrote:

28 In consideration of that principle, many courts have recognized that it is not in the best interests of the child for a court to tweak or tinker with a custody/access/parenting order on an interlocutory basis, given that all of the issues between the parties will not be fully vetted until trial. Therefore, changes to temporary custody/access/parenting orders will be rare.

29 As Howden J. stated in Osama v. Sayegh, [2004] O.J. No. 3820 (Ont. S.C.J.) at para. 5:

...generally, the custodial status quo will not be changed on an interim custody motion in the absence of compelling reasons indicating the necessity of a change to meet the children’s best interests;

[17] Those two paragraphs accurately set out the high onus against changing interim parenting orders. While the test may not be as high as danger to the child, per se, it is far more than a simple reconsideration of best interests in the next motion either. Rather that setting out a stable parenting arrangement for trial, the loose test for changing interim parenting orders offered here by the father would leave it open to deep pocketed and litigious parents to continuously litigate without having to bother to go to trial. Or they could jockey for different arrangements going into trial, in the hopes of effecting and then relying on a more advantageous status quo. Such a standard would conscript the affected children into a drum and major corps for their parents’ never-ending Civil War re-enactment.

[18] Children need some stability to their parenting arrangements, even on an interim basis. That is why I agree with Mitrow J. that the test is a material change in circumstances that compels a change in parenting arrangements in the best interests of the children.

[19] Here the father makes the following arguments in favour of his claim that there has been a material change in circumstances:

1. The father now lives close to the mother.
2. The parties’ work arrangements have changed. The mother will begin working in October, while the father also expects to begin work when he decides which of the two standing job offers to accept.
3. During the past months of the pandemic, the mother refused the father’s demands that he be granted an equal shared parenting arrangement.
4. The mother has displayed animosity to him.

[20] Considering each of these arguments, I see no material change in circumstances, let alone one that compels a change in parenting arrangements in the best interests of the children. I say this because:

1. The father had already moved, so that he was living close to the mother by the time of the motion before Fowler Byrne J. She had considered that change;
2. Fowler Byrne J. expected the father to return to work in 2019. But that was not a factor in her decision. Nor was the mother’s work situation. Even so I do not see how the fact that each parent is expected to work at home represents a material change in circumstances. They were each at home at the time of the motion before Fowler Byrne J.;
3. The father’s argument that the mother’s refusal to agree to equal shared parenting arrangement is a reason to impose it represents a circular argument. The fact that the mother refuses the father’s demand is not proof that the demand must be adopted.
4. The mother has consistently argued that it is not in the children’s best interests to grant the father the parenting arrangement he seeks. That does not prove that there should be equal shared parenting. Two previous judges have agreed with her position, one as recently as ten months ago. There is no material change here.
5. Chozik J. already found that there is high conflict between the parties. That is one reason for her decision. I see no reason to find that that conflict has changed. The fact that this is the third parenting motion in 21 months and the second attempt to change the Chozik J. order offers some proof of the continued validity of her finding. There is little evidence to the contrary.
6. The father asserts that the mother has used social media to denigrate him and question his parenting ability. He relies on a Facebook post made by the mother after she had to take one of the children to the hospital. The child had injured himself in a cycling accident while in the father’s care. The father did not bother to mention the injury to the mother until the next day.
7. The mother’s post was quite benign and referred in large measure to being out of the house (at the hospital) for the first time during the pandemic. She posted photos from the hospital, showing both mother and son wearing masks. She stated that she was happy that there were no broken bones or other injuries. Her post said nothing about the father. When asked by a friend in a responding post what happened she referred to “questionable biking down a cliff” while the child was with his dad. She ended by saying “I’ll leave it at that”. That ambiguous response is far from denigrating the father.

[21] In sum, I see no individual material change in circumstances. Nor do I see the circumstances raised by the father as a whole as representing a material change. Even if any aspect of those factors represents a material change, none individually or as a group compel a change in the parenting arrangements. I dismiss the father’s motion. However I do order that this matter be placed on the spring 2021 trial list.

Disclosure of Contents of Father’s Application for Disability Insurance

[22] The father resists any of the disclosure requested by the mother. He says that his psychiatrist’s letter (as well as a recent letter from his family doctor) should answer any questions the mother may have about his present mental health. He implies that the mother cannot look behind those reports even though his continuing mental health is clearly a parenting issue.

[23] In oral argument, the father also relies on the confidentiality of his psychiatric records. However he offers no evidence of the expectation of privacy in his dealings with his psychiatrist.

[24] The mother says that she requires these records for dual purposes. First, she wishes to determine whether the favourable statements by the father’s treating doctors can be accepted at face value. She points to the father’s very significant depressive episode on 2019, one that she says included suicidal ideation. She states that it would be unfair to have to go trial without better evidence regarding his past and present mental health. All of that is highly relevant to the children’s best interests.

[25] The mother also states that these records are relevant to her claims for increased retrospective support. The records may be relevant to determine whether the father has been intentionally underemployed since he was laid off. The records that she seeks are records that he has already disclosed to his insurer. She only wants to see what the father has provided to the insurer to obtain his benefits.

[26] In Dowdall v. Dowdall, 2020 ONSC 4944, 2020 ONCS 4944, I described the disclosure obligations of parties to a family law application as follows:

A Party's Disclosure Obligations in Family Law

24 Our courts have increasingly recognized the centrality of disclosure in family law and its converse, the ills that non-disclosure create. This point was recently emphasised by the Ontario Court of Appeal in Leitch v. Novac 2020 OCA 257, where Hourigan J.A., writing for the court stated at para. 44:

As the Supreme Court suggested in Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, at para. 34, nondisclosure is the cancer of family law. This is an apt metaphor. Nondisclosure metastasizes and impacts all participants in the family law process. Lawyers for recipients cannot adequately advise their clients, while lawyers for payors become unwitting participants in a fraud on the court. Judges cannot correctly guide the parties to a fair resolution at family law conferences and cannot make a proper decision at trial. Payees are forced to accept an arbitrary amount of support unilaterally determined by the payor. Children must make do with less. All this to avoid legal obligations, which have been calculated to be a fair quantification of the payor's required financial contribution. In sum, nondisclosure is antithetical to the policy animating the family law regime and to the processes that have been carefully designed to achieve those policy goals.

25 In C.M.M. v. D.G.C., 2015 ONSC 1815, Horkins J. summarized a number of authorities to assert that disclosure is a "fundamental tenet" of family law. She added at para. 221 that "[t]here is an obligation to provide complete, detailed and timely disclosure."

26 Rule 13 of the Family Law Rules ("FLR") codifies many of the broad disclosure obligations in family law proceedings. FLR r. 13(1) requires parties to file sworn financial statements (Form 13 or 13.1) where there is a claim to support or property in a family law proceeding such as this. Subrule 13(3.1) sets out the documents that must be served with a sworn financial statement, including the items set out in s. 21 of the Child Support Guidelines (e.g. last three notices of assessment and reassessment, most recent statement of earnings or a letter from employer setting out that information).

27 Subrule 13(11) deals with the circumstances where a party believes that the other party has failed to provide sufficient financial disclosure to allow for a full understanding of the other party's financial circumstances. The provision broadly encompasses deficient disclosure, whether in a sworn financial statement "or otherwise". The party deprived of the disclosure may ask for it. If the disclosure is not provided within seven days, the party may move for an order that the information be provided or that a new financial statement be sworn.

28 Parties are required to update any information that is more than 30 days old in their financial statements for conferences and trial (r. 13(12)). However, under r. 13(15):

As soon as a party discovers that a document that he or she has served under this rule is incorrect, incomplete or out of date, the party shall serve on the other party and, if applicable, file, a corrected, updated or new document, as the circumstances require.

[Emphasis added]

29 A similar duty applies to omissions, rather than updating of relevant documentary disclosure (r. 13(16)). The court may order the production of any missing document required by r. 13, an Act or regulation, (r. 13(17).

30 Subrule 13 does not act as a limit on any other disclosure duty set out in any other Act or regulation (r. 13(18)).

[27] I add that if the caselaw bends so closely toward the centrality of financial disclosure in family law, it cannot conceivably require less when the interests of children are involved.

[28] The mother also relies on ss. 24(2)(d), (f), and (g) of the Children’s Law Reform Act, which set out some factors for the court’s consideration in the determination of a child’s best interests. Those provisions together read as follows:

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent;

[29] The mother’s argument is that full disclosure should be required to allow the court to make a full consideration of the child’s best interests. The father offers no authorities in support of his defence to the mother’s claims for the contents of his application for benefits.

[30] Hughson v. MacDonald, [2009] O.J. No. 5089 (S.C.J.) is a case similar to this in that Kane J. found that the "mother's mental health is squarely raised in the application". In that case, like this, one of the parents had a history of depression and suicidal ideation, although in that case, there were criminal charges as well. Kane J. carefully reviewed the claims and law governing the claims to confidentiality of psychiatric records in ordering disclosure.

[31] In doing so, Kane J. considered the leading case of the Supreme Court of Canada in M. (A.) v. Ryan, [1997] 1 S.C.R. 157 (S.C.C.). That case dealt with the privilege that attaches to the psychiatric records of a sexual assault victim within the context of her civil suit against the perpetrator. The Supreme Court laid out a number of factors to consider, while understanding that there is no bright line answer.

[32] Common law privilege is determined under the four-part Wigmore test:

a) The communication originated in private,

b) The confidence must be essential to the relationship in which it occurred,

c) The relationship must be one which should be fostered for the public good,

d) If the above three requirements are met, the court must then consider whether the interest in protecting and preventing disclosure outweighs the interest in getting to the truth and deciding litigation correctly.

(Hughson at para. 17)

[33] Among the eleven principles to be considered balancing the interests of confidentiality and full disclosure identified by the Supreme Court in Ryan and cited by Kane J. in Hughson at para. 17, the following are particularly apposite to the issues in this motion:

6. Even where there are compelling reasons to protect the communication from disclosure, it must be shown that the benefit to maintaining the privilege, however great that might seem, in fact outweighs correct disposition of litigation. The balancing of these two elements is an exercise of common sense and good judgment.

7. Fishing expeditions are inappropriate where there is a compelling privacy interest at stake.

8. A civil litigant must be prepared to accept some intrusion on her/his privacy to the extent it is necessary to get to the truth but civil litigation is not a waiver of privacy, nor a license to probe into private matters unnecessary to determine the litigation.

[34] As Kane J. pointed out, the Supreme Court upheld the privilege of the records because of the measures that psychiatrist and patient had taken to protect her confidentiality. Those steps included the patient’s identification of the importance of that privacy and the steps taken by the psychiatrist to guard it. No such evidence has been proffered here.

[35] In F. (K.) v. White(2001), 53 O.R. (3d) 391 (Ont. C.A.), the Ontario Court of Appeal considered Ryan. At para. 61, it articulated that there is no “blanket privilege for all medical records”. It also clarified that a claim for that privilege has to be supported by “evidence of the promise of, or the need for, confidentiality”.

[36] In ordering that the psychiatric records be produced in Hughson v. MacDonald, Kane J. found that:

1. There was an absence of evidence supporting the claim to privilege. The mere assertion of the privilege by counsel is insufficient;
2. In any event, even when there is an important societal interest in the preservation of doctor-patient confidentiality, there is no blanket privilege;
3. Even if the records were privileged, he would have ordered the disclosure because: i. The privilege was waived by the disclosure of the records to the Office of the Children’s Lawyer and the filing of some medical reports; ii. The mother’s mental health had been in issue throughout the proceeding; iii. Because of the importance of determining the child’s best interests in that case, any such privilege cannot be “paramount to the need to get to the root of this serious allegation given custody is in issue.”

[37] Relying on those findings of law and the manner in which they were applied to the facts before Kane J., which I find appropriate to this case as well, I conclude that:

1. The father has provided no evidence of an expectation of privacy in the creation of his psychiatric and medical records.
2. Even if he did, that privilege was waived by production to the insurance company, and in producing some reports for this proceeding.
3. Even if that were not so, the interest of determining how the father’s mental health affects the best interests of the children must supplant the father’s interest in privacy.
4. It would be unfair to the mother to force her to go to trial without those records.

[38] I note that in Hughson v. MacDonald, Kane J. set out directions for the preservation and ultimate destruction of those records following the completion of the proceeding. No such order is requested here. Nonetheless, I order, as Kane J. did, that the mother’s counsel is to retain possession of these documents and not show, deliver them, copy them or summarize them to the applicant or anyone else unless consulting with a potential or retained expert medical witness who can see the documents.

Production of details of all government benefits received by the father in 2020 and all of the father’s attempts to find employment since February 2020

[39] The father did not strongly resist these two requests. It is not clear why he resisted them at all. In light of the law regarding financial disclosure set out above, I see no reason to refuse those two requests.

Voice of the Child Report

[40] Each party’s position regarding the parenting arrangements is predicated in part on their assertion of the children’s views and preferences. Despite the children’s ages, there is a value in hearing from the children and they do have a right to be heard, if not followed. That evidence would be helpful at trial.

[41] Therefore, I request that the OCL provide a VoC report regarding the children. Each party shall fill out and send the requisite form to the OCL within seven days of the release of this endorsement.

[42] I set out below terms that the parties have agreed upon should the OCL not accept this request.

Order

[43] To summarize, for the reasons set out above, I order:

1. This matter will be placed in the spring 2021 blitz trial list;
2. The father’s motion for an interim variation of the order of Fowler Byrne J. of November 29, 2019 is dismissed.
3. The father shall produce the disclosure set out at para. 2(b)-(d) of the mother’s factum within 45 days.
4. With regard to any psychiatric records produced in accord with this order, the mother’s counsel is to retain possession of these documents and not show, deliver them, copy them or summarize them to the applicant or anyone else unless consulting with a potential or retained expert medical witness who can see the documents. Should the mother change counsel, this term will apply to any new counsel as well.
5. The OCL is requested to provide a VoC report regarding the parties’ two children.
6. Each party shall fill out and send the requisite form to the OCL within seven days of the release of this endorsement.
7. If the OCL chooses not to accept this request or has not decided within 60 days of the date of release of this decision, the mother will choose three social workers on the OCL Halton panel and provide the names to the father. She shall do so within 14 days of the date of the letter from the OCL refusing to accept the court’s request. The father will have fourteen days to choose one of those three social workers and communicate that choice in writing. If he fails to do so, the mother may choose one of those three names on the fifteenth day after delivering those names to the father. She shall do so in writing.

Costs

[44] It is to be hoped that the parties will resolve the issue of costs of this motion on their own. As the mother was presumptively successful, if the parties are unable to resolve the costs issue, she will provide a submission of up to three pages, double spaced, 1” margins plus bill of costs/costs outline, within 21 days of release of these reasons. There is no reason to include copies of cases unless they are not available on QL or WestlawNext Canada. The father may in kind respond within a further 21 days. No reply unless I request it.

“Marvin Kurz J.”

Electronic signature of Justice Marvin Kurz,

Original will be placed in court file

Date: September 28, 2020