Court File and Parties

Court File No.: FC48/21 Date: April 1, 2021 Superior Court of Justice – Ontario Family Court

Re: S.E.S., Applicant And: T.J.B., Respondent

Before: Tobin J.

Counsel: Iain Sneddon for the Applicant Brenda D. Barr for the Respondent

Heard: March 18, 2021

Endorsement

The Motions

[1] In the final order dated August 22, 2016 (“the McSorley J. order” or “the last order”), the court granted the parties joint custody of their child. The court order provided that the child would reside primarily with the respondent (“the father”). The court order also provided for and particularized parenting time with the applicant (“the mother”).

[2] While the child was in her care in February 2021, the father was charged with distributing an intimate image of the mother without her consent.

[3] The mother did not return the child to the father following her scheduled parenting time in February 2021.

[4] The father brought a motion for an order directing that the child be returned to his care.

[5] Within a motion to change brought by the mother, she brought a motion for a temporary order changing the McSorley J. order by having the child reside in her care and giving her decision-making responsibility.

[6] The central issue to be decided on these motions is whether the McSorley J. order should be changed on a temporary basis to allow the child to remain in the mother’s care.

Facts

i) The McSorley J. Order

[7] The parties lived together for approximately five years. They separated in 2013.

[8] The parties are the parents of one child, C.W.B. (“the child”), born […] 2013.

[9] Following a four-day trial before McSorley J., which ended on April 19, 2016, the court granted the parties joint custody of the child, with the child’s primary residence with the father. The court granted the mother parenting time one weekend per month in Petawawa, where she resided, and one additional weekend in London, where the father resided. The court also granted the mother additional holiday and summer parenting time.

[10] In the reasons for judgment, McSorley J. stated that “both parents are capable of acting as a parent to the child” (para. 72). However, McSorley J. identified two concerns with the mother’s plan:

1. The mother was a member of the Canadian Armed Forces, which could deploy or send the mother away on exercises at any time. It was not clear to the court who would care for the child if this happened. The Canadian Armed Forces could also move the mother anywhere in Canada for work. If this happened, it would seriously affect the father’s relationship with the child (para. 73).

2. In the period beginning in January 2014 and ending in 2016, the mother took steps to improve her life. In this period, it was the father who met all of the child’s needs (para. 77). The mother’s plan to have the father move where she was posted was not child-focussed (para. 77).

ii) Parenting Since the McSorley J. Order

[11] The parties followed the parenting time schedule contained in the McSorley J. order. On occasion, accommodations were made to the mother’s parenting time. One of the accommodations was that sometimes the maternal grandmother would pick up the child at the start of the mother’s parenting time. This would occur when the parenting time took place in Port Stanley, where the maternal grandmother lived.

[12] The father’s evidence was that he had been very flexible in agreeing to additional parenting time for the mother, both in person and virtually.

[13] The father described the child, prior to the pandemic, as being well adjusted, close with his family and extended family, and closely integrated into his community.

[14] The father described the child, during the pandemic, as experiencing periods of intense anger and frustration. On occasion, he lashed out physically and verbally against his family members.

[15] The mother was concerned about the father’s physical and emotional treatment of the child, based on the child’s disclosures to her and the maternal grandmother.

[16] The maternal grandmother made a complaint to the police about the father’s treatment of the child. The police, in turn, referred the family to the local children’s aid society (“the society”). The father’s evidence was that the society made suggestions about how to deal with the child’s outbursts and that the father followed them. One of the society’s recommendations was to refer the child to a psychiatrist. The father did so.

[17] The father provided the court a report from the psychiatrist, attached to the father’s affidavit as an exhibit. The court has a role as a gatekeeper in connection with admitting expert evidence. I decline to attach weight to this report. The father did not provide the psychiatrist’s qualifications. The psychiatrist’s report also appears to be based on a single meeting with the child, the father, and the father’s spouse. The psychiatrist assessed the child’s mental health without any involvement from the mother.

[18] The mother was aware that the father had experienced behaviour problems with the child beginning in October 2020. On two occasions, the father and his spouse called the mother via Google Duo. During these calls, the mother heard the child screaming in the background that he wanted to be saved by the mother and wanted to live with her.

[19] Since the onset of the child’s conduct problems, the parties agreed that the child could spend longer periods of time in the mother’s care.

[20] The parties agreed that the child would be in the mother’s extended care from February 12, 2021 until February 19 or 21, 2021.

[21] On February 18, 2021, the police charged the father with distributing an intimate image of the mother online without her consent, contrary to s. 162.1(1) of the Criminal Code, R.S.C., 1985, c. C-46. As part of the criminal proceeding, the father gave an undertaking that prohibited him from communicating with the mother except to arrange childcare or when having incidental communication during the child’s pick-ups and drop offs. The father was also prohibited from going within 50 metres of the mother’s residence or her place of employment.

[22] On February 19, 2021, the mother started her motion to change.

[23] On the last day that the child was scheduled to return to the father (Sunday, February 21, 2021), the mother sent a text to the father’s spouse advising 1) that the child would not be returning that day and 2) that further communication was to take place through her lawyer.

[24] The mother’s motion to change was issued on February 24, 2021 and served on the father the next day.

[25] The mother did not return the child to the father because of her “serious concerns regarding [the father’s] stability and ability to appropriately care for [the child].”

[26] The mother claimed that her concern for the father’s stability arose primarily because she had been the victim of “severe criminal harassment and the non-consensual distribution of intimate images on the internet over the last several years” committed by the father.

[27] The increase in the severity and frequency of harassing behaviour beginning in 2019 was coincident with the child’s expressed desire to reside in the care of the mother.

[28] In three years, there were 154 posts made to multiple websites that identified the mother, her home address, and her occupation; that made disparaging comments about her; that alleged that she lost custody of her son; and that showed intimate pictures of her that included her face.

[29] Intimate images of the mother were e-mailed to the maternal grandmother and the mother’s three siblings from a fake e-mail address registered in the mother’s name.

[30] The mother became aware of the postings when the Canadian Forces Special Operations Command did a background search on her prior to her beginning her employment.

[31] On […] 2020, which happened to be the mother’s birthday, the mother received a Facebook message from an anonymous account containing disparaging comments and a link to a video posted to a pornographic website. This video is the one that forms the basis for the criminal charge against the father. The father’s evidence is that the message received was not “in any way” associated with him.

[32] In addition, the mother’s evidence is that she has received harassing phone calls from a blocked number, sometimes 200 times per night. Threats of harm were left on her voicemail by a computer-generated voice. In spite of changing her telephone number and having periods of quiet afterwards, calls and texts would begin again. The father specifically denies any involvement with the harassment. He states that he does not know what the mother refers to in her evidence and he has not been charged with harassment.

[33] On October 15, 2020, the Canadian Forces National Investigation Services told the mother that the father was behind the internet postings. The St. Thomas Police Service then took the matter on.

[34] The mother claimed that her concerns regarding the father’s stability and ability to appropriately care for the child were also based on the child disclosing, to the mother and maternal grandmother, physical and emotional harm that had come to him.

[35] As set out above, the maternal grandmother reported these disclosures to the police, who in turn reported them to the society in October 2020.

[36] On December 24, 2020, a society worker advised the mother that the investigation was closed. In a letter sent by the society worker to the father and his spouse, the worker explained why the society was no longer going to be involved:

Considering the good network of people that [the child] is able to reach out to and [the child] being enrolled in counselling, the Society believes that further involvement is not warranted at this time.

[37] The child remains in the mother’s care. She enrolled him in the school in the jurisdiction in which she resides.

[38] The mother’s evidence is that the child has been most insistent that he wants to live with her.

[39] The father acknowledges that, at times, the child says that he wants to live with his mother, “but the idea is quickly forgotten, and said out of anger or in response to disciplinary measures he perceived to be unfair.”

Issue #1 – Is the motion brought by the mother urgent?

[40] The father submits that the court should not consider the mother’s motion before a case conference is held because it is not urgent.

[41] In Campbell J.’s endorsement dated February 26, 2021, the court found that the father’s requested motion for the return of the child, “allegedly in the mother’s care contrary to an existing court order,” was presumptively urgent.

[42] In Campbell J.’s endorsement dated March 1, 2021, the court also found that the mother’s cross-motion was presumptively urgent. The court granted leave to bring the cross-motion on the same day as the father’s motion.

[43] The father argues that Campbell J.’s finding of presumptive urgency with respect to the mother’s cross-motion can be reconsidered by this court before the motion is argued. In support of this request, he relies on Reitzel v. Reitzel, 2020 ONSC 1977 [Reitzel].

[44] In Reitzel, a matter was before a triage judge for a determination on urgency and how the case should proceed (para. 4). The triage judge determined that the matter was not urgent (para. 6). The court noted that a triage judge’s determination on urgency is intended to be simple and expeditious, recognizing the summary nature of the determination (para. 9). It is in that context that the court held that the determination of urgency is “wholly without prejudice” to either party on the ultimate hearing (para. 10). This, the father argues, allows him to ask the court to reconsider the issue of urgency again and determine whether a case conference should be held before the merits of the motion are argued.

[45] During argument, the father’s counsel was asked by the court about case law that held that, once a presumptive urgency finding was made, it was not to be relitigated. Counsel advised that no such case was put to her.

[46] The parties did not refer the court to Faieta J.’s decision in Chahine v. Martins, 2020 ONSC 1825 [Chahine]. In that case, the court applied the reasoning in Wang v. 2426483 Ontario Limited, 2020 ONSC 2040 [Wang], a civil case, to family law cases. In Wang, the court held that, once a motion was booked, there was no basis for further submissions on urgency. In Chahine, the court held that the approach taken in Wang was applicable to family law cases and was consistent with the primary objective of the Family Law Rules, O. Reg. 114/99, as expressed in r. 2(2) – (4) (para. 25).

[47] I find the reasoning in these cases to be persuasive. It is not for this court to allow re-litigation on the issue of urgency.

[48] In any event, I am satisfied that, based upon the allegations made by the mother regarding the internet postings, the matter is an urgent one under r. 14.4(2): Hood v. Hood (2001), 20 R.F.L. (5th) 78 (Ont. S.C.) and Thomas v. Wohleber, 2020 ONSC 1965.

[49] The father argues that, as the mother has been dealing with these allegations for almost four years, the motion, precipitated by these allegations, is not urgent. However, the mother only recently was provided with evidence, from a source credible to her, that the father was the source of the internet posting. The mother’s motion against the father was therefore not based on evidence that she had had for almost four years. The mother’s motion cannot be said to be “non-urgent” on that account.

[50] The best interests of the child in relation to the family violence alleged requires this motion to be heard as quickly as possible.

Issue #2 – Should there be an interim order varying McSorley J.’s final order?

i) Legal considerations

[51] A court may not vary a parenting order made under Part III of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA) unless there has been a material change in circumstances that affects, or is likely to affect, the best interests of the child who is the subject of the order: CLRA, s. 29(1).

[52] Section 72 of the CLRA gives the court jurisdiction to make an interim order in proceedings under Part III. To do so, the court must first make a finding that there has been a material change in circumstances: Swan v. Swan (2002), 27 R.F.L. (5th) 444 (Ont. S.C.), aff’d (2002), 27 R.F.L. (5th) 449 (Div. Ct.).

[53] The parties have put in issue the test to be applied or the factors to be considered in determining whether there has been a material change in circumstances when considering a request for an interim variation of a final order.

[54] The father argues that the material change must be “substantially important” and affect or likely affect the best interests of the child. The father further argues that a party wishing to change a parenting order is required to produce cogent and compelling evidence that the physical, mental, and moral welfare of the child would be in danger if the order is not changed.

[55] The father’s cites cases which deal with variation of temporary orders, not final orders. In Daniel v. Henlon, 2018 ONCJ 122, the applicant brought a motion for a temporary order changing an existing temporary order, following the completion of an investigation and report by the Office of the Children’s Lawyer. In Miranda v. Miranda, 2013 ONSC 4704, the applicant brought an interim motion to increase the parenting time granted in a previously made interim order. In Shaw v. Shaw, 2008 ONCJ 130, 62 R.F.L. (6th) 100, the court dealt with the return of the case following the making of a without notice order.

[56] The mother argues that the test governing the interim variation of a final order is found in Gordon v. Goertz, [1996] 2 S.C.R. 27 [Gordon]. I agree that this case provides the starting point for the analysis. Though Gordon was a decision under s. 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), it is applicable to and should be followed in decisions varying a parenting order under the CLRA: Allen v. Allen (1998), 38 R.F.L. (4th) 96, at para. 26.

[57] Gordon requires that a two-stage inquiry be undertaken when the court is asked to change a parenting order.

[58] In the first stage, the court must determine whether there has been a material change in circumstances, since the last order was made, that affects the child’s needs or the parents’ ability to meet those needs. The material change must be one that was not foreseen or could not have been reasonably contemplated when the last order was made. At this stage, the onus is on the moving party to show that circumstances have changed since the last order was made to such an extent that the current childcare arrangement is no longer appropriate.

[59] If the court finds that there has been a material change in circumstances, then, in the second stage, a fresh inquiry into the best interests of the child is required. The best interests’ inquiry must be from the perspective of the child. Section 24 of the CLRA sets out factors the court should consider in determining best interests.

[60] Where the request is for a temporary order that changes a final order, as is the situation in this case, the court must exercise caution before changing the existing parenting arrangement.

[61] I agree with the father’s counsel that the evidence needed to support a change must be compelling. This evidence will include circumstances where, at the time change is contemplated, there is a situation of actual or potential harm or prejudice to the child which requires an immediate change.

[62] In F.K. v. A.K., 2020 ONSC 3726, 43 R.F.L. (8th) 441, which was not cited to me by either party, the court, at para. 52, summarized what is to be considered when a temporary variation of a final order is requested:

52 The added complication: the father seeks a temporary variation of a final parenting order. This requires that the court conduct an even more stringent analysis:

a. In all instances, courts must exercise caution before changing an existing arrangement which children have become used to.

b. This is especially the case where the existing parenting arrangement has been determined by way of court order. The starting point is that court orders are presumed to be correct. M. (B.P.) v. M. (B.L.D.E.), [1992 CarswellOnt 295 (Ont. C.A.)]; Gordon v. Gordon, 2015 ONSC 4468 (Ont. S.C.J.); Oickle v. Beland, 2012 ONCJ 778 (Ont. C.J.).

c. And the level of required caution is further heightened if the court is being asked to change a final parenting order on a temporary basis. If the general rule is that we are reluctant to change temporary orders pending trial, then it goes without saying that we should be even more reluctant to change final orders pending determination of the issue.

d. Although counsel did not raise jurisdiction as an issue, I am satisfied the court has the authority to grant a temporary variation of a final order — in the appropriate circumstances. Stokes v. Stokes, 2014 ONSC 1311 (Ont. S.C.J.); Huliyappa v. Menon, 2012 ONSC 5668 (Ont. S.C.J.); Clements v. Merriam, 2012 ONCJ 700 (Ont. C.J.).

e. But the evidentiary basis to grant such a temporary variation must be compelling.

f. The court must start with the aforementioned two-part material change in circumstances analysis.

g. But for a temporary variation, the court must also assess whether the changed circumstances have created a situation of actual or potential harm, danger, or prejudice for the child; of such nature or magnitude that immediate rectification or correction are required to safeguard the child's best interests.

h. The onus on the party seeking a temporary variation is onerous. They must establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child's physical and/or emotional well-being. They must establish that the situation is so serious and potentially harmful that any delay in addressing the problem is likely to continue or exacerbate actual or potential physical and/or emotional harm for the child.

i. The court must be satisfied that the child's best interests require an immediate change — to reduce the detrimental impact of unacceptable negative dynamics or behaviours.

j. The court must be satisfied that the existing order has come to be demonstrably contrary to the best interests of the child — and that the proposed temporary variation is urgently needed to shield the child from likely future harm.

k. Implicitly, the court must have a level of confidence that the temporary variation would not only remove the child from a negative situation, but that the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation.

l. And given the qualitative difference between untested affidavit materials on a motion compared with a more thorough evidentiary analysis at a trial or oral hearing, the court must be satisfied — on a balance of probabilities — that a clear and compelling need to make an immediate change has been established.

m. On a temporary motion, the status quo will have a strong gravitational pull — until the moment when the court determines that a child is in peril. After that, priority switches to rescuing and protecting the child. And the pace of correction is directly related to the magnitude of the child's current exposure to harm.

[63] A compelling rationale for requiring this stringent test is that it would not be in the child’s best interests “to be tossed back and forth pending final disposition” of the parenting issues: Wozniak v. Brunton, 2005 CarswellOnt 2120, at para. 13.

ii) Legal considerations applied

[64] Since shortly after the McSorley J. order was made, the mother’s privacy was invaded and violated in a most egregious manner. Intimate images of her were posted on the internet. It is not clear if they can ever be completely removed. These images were also sent directly to some of the mother’s family members. In addition, the mother has been the subject of an unrelenting and disturbing campaign of harassment from unwanted telephone calls and text messages. This evidence is uncontradicted, credible, and is accepted by the court as fact.

[65] If the perpetrator of these attacks is the father, then the mother will have established that there has been a material change in circumstances since the making of the last order. In her order, McSorley J. found that both parents were able to care for the child. Implicit in this finding is the idea that the parents were able and willing to support the child having a respectful and loving relationship with the other parent. A parent who betrays the other parent by invading the privacy and security of the other parent in the fashion experienced by the mother is not a parent who is able and willing to care for the child, which includes supporting the child in having a positive relationship with the other parent. A parent who betrays the other parent has irreparably damaged the other parent. It is not difficult to foresee that the internet uploads will come to the child’s attention at some point in his life, either directly or indirectly, i.e., through friends, acquaintances, or a person who just wants to hurt him. The perpetrator of these attacks has engaged in violent behaviour. If the perpetrator is the father, he has engaged in vicious family violence.

[66] In support of her claim that the father is the perpetrator, the mother points to the following evidence:

• The harassment and posting of intimate images began in the fall of 2016, shortly after the McSorley J. order was made.
• The severity and frequency of the harassment and postings increased beginning in 2019 as the child expressed a desire to reside primarily with the mother.
• Over three years, 154 posts – including disparaging or derogatory comments about and intimate photographs of the mother – were made to multiple websites.
• In between 2016 and 2019, which was before the child began expressing a desire to live with the mother, there were 27 posts.
• The first post of an intimate image was made in September 2016. Approximately six months later, the father attached pictures of the mother’s face to this original post.
• In the summer of 2017, the father began making posts about the mother on other websites, stating “what a good time” she was and that she participated in risky and public sexual activity.
• The mother became aware of the postings when the Canadian Forces Special Operations Command conducted a background check on her prior to her employment with the Armed Forces.
• In August and September 2020, nude pictures of her and other people not known to her were texted to her. These same pictures were e-mailed to the maternal grandmother and to the mother’s siblings from a fake e-mail address. The mother claims that the father created this e-mail address.
• On October 15, 2020, someone at the Canadian Forces National Investigation Services told the mother that the father was behind this behaviour.
• The father has been charged with the criminal offence described above in this endorsement.

[67] The father denies the mother’s allegations:

• He did not sign a statement of admissions in relation to the criminal charge.
• He does not know what the mother is referring to when she states that “she has been on the receiving end of harassment.”
• He has not been charged with harassment.
• In his affidavit in reply to the mother’s, he makes a general denial of all allegations made except as expressly stated.
• He is not associated in any way with the message received from the fake account.

[68] On these motions, the court is faced with conflicting affidavit evidence that has not been tested by cross-examination. The essential facts supporting the mother’s claim that the father is the perpetrator are contradicted by the father. The mother has not provided the court with the report from the Canadian Forces National Investigation Services which concluded that the father was behind the postings.

[69] This conflict will best be resolved following a more thorough evidentiary analysis at a trial or oral hearing.

[70] While the mother’s evidence raises a concerning suspicion about the father’s role in the attacks against her, I am unable to find, on the balance of probabilities, that the father is the perpetrator of these attacks.

[71] If I were able to find that the father was the perpetrator, I would also have found that there was a material change in circumstances that requires the child to be placed in the mother’s primary care.

[72] The child’s wish to live with the mother and the reasons why, as articulated by the mother, must also be considered in determining if there has been a material change in circumstances.

[73] The father is aware of the child’s wishes and described them as short-lived and usually in response to discipline. The society investigated the mother’s concerns and subsequently closed its file.

[74] The father has arranged for the child’s behaviour to be addressed clinically. I expect that the father, who shares decision-making responsibility with the mother, will ensure that she is equally responsible for deciding the course of any clinical involvement.

[75] The parties’ description of the child’s behaviour and the steps being taken to address it does not satisfy me that there has been a material change in circumstance which demands that the existing order must be changed immediately.

[76] I do agree with the mother that the involvement of the Children’s Lawyer will be of considerable assistance to the court in understanding a) the child’s relationships with his parents, b) what, if any, clinical involvement will be of assistance to deal with the child’s behaviour, and c) the child’s views and preferences.

[77] The uncontradicted evidence that the court can rely upon is not sufficiently compelling to find that the McSorley J. order must be immediately varied. On this evidentiary record, I cannot find that risk of harm to the child is of a magnitude that his best interests require an immediate change in his residence. The mother’s actions also support this finding. The investigators informed the mother that the father was the perpetrator of the attacks on her in October 2020. However, the mother did not take steps to remove the child from the father’s care until a criminal charge was brought four months later in February 2021. She left the child in the father’s primary care for a number of months, knowing what she knew, which suggests that the mother did not think that the father would be an immediate risk to the child.

[78] The evidence in this case will continue to unfold. The mother will be at liberty to renew her request if additional and better evidence to support her claim becomes available.

[79] The mother is to return the child to the father’s care no later than 5 p.m. on April 10, 2021. This will give the father and the mother time to arrange for the safe and smooth return of the child. The mother’s parenting time shall then resume in accordance with the McSorley J. order.

[80] In the hearing, the mother stated that she would return the child to the father if that is what the court ordered. I accept this statement. However, if the child is not returned as ordered, the father may move, on short notice, for a police enforcement order to have the child returned to him.

Order

[81] Accordingly, an order shall issue as follows:

1. The mother shall return the child to the father’s primary care by Saturday, April 10, 2021 by 5 p.m.
2. The mother’s parenting time with the child shall resume thereafter in accordance with the McSorley J. order.
3. If the child is not returned by Saturday, April 10, 2021 by 5 p.m., the father may move, on short notice, for a police enforcement order to have the child returned to him.
4. A Children’s Lawyer order shall issue.

Costs

[82] If the parties cannot agree on costs, they may provide written submissions: the respondent by April 14, 2021 and the applicant by April 23, 2021. Costs submissions are to be limited to three pages, double-spaced, and at least in 12-point font together with any offers to settle.

“Justice B. Tobin”

Justice B. Tobin

Date: April 1, 2021