COURT FILE NO.: FS-20-15295

DATE: 20210625

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

S.H.

Applicant

– and –

D.K.

Respondent

Dani Frodis, for the Applicant

Serena Lein, for the Respondent

HEARD: June 10, 2021

Pinto J.

Reasons for Decision

Overview

[1] The respondent father brings a motion to vary a final consent order on an interim basis, to increase his parenting time with the parties’ 12-year-old daughter to an equal parenting regime.

[2] The applicant mother opposes the motion on the basis that the father’s parenting plan is not in the best interests of the child. The mother argues that the father has not satisfied the stringent legal test to vary a final order on an interim basis, which includes the requirement to demonstrate a material change in circumstance.

[3] The father disagrees that proof of material change is necessary, as the final order contains a review provision that allows a review of the parenting order after April 1, 2019, without having to prove a material change in circumstance.

[4] The daughter expressed her views in successive Voice of the Child (VOC) reports. In the first report, the daughter expressed agreement with the father’s 50/50 parenting plan. In the second report, the daughter stated that she had changed her mind, and preferred the status quo favoured by the mother. The parties blame each other for unduly influencing the child with respect to the VOC report that they disagree with.

[5] For the reasons that follow, I grant the father’s motion to vary the final order on an interim basis and order a week about parenting plan. I find that the provision in the final order permits a review of the parenting plan without the necessity of proving a material change in circumstance. Upon such a review, the father’s plan for equal parenting is in the best interests of the child and the reasons for the change are sufficiently compelling.

Facts

[6] The parties were married on July 2, 2006 and separated on February 21, 2013. They are now divorced. Their daughter, O, is now 12.

[7] The parties entered into a Separation Agreement on July 28, 2014 that dealt with parenting. Another Separation Agreement that dealt with financial issues was entered into on August 19, 2015. An Amending Agreement dated March 11, 2016 was established to amend the financial/property settlement permitting the applicant to purchase the jointly owned matrimonial property.

[8] A consent Order of Wilson J. dated May 15, 2017 (“Final Order”) varied certain provisions of the parenting plan. Paragraph 7 of the Final Order states that:

Paragraph 5.5 [of the July 28, 2014 Separation Agreement] is amended to provide that the parties may review [O’s] residential schedule on or after April 1, 2019 without having to prove a material change in circumstance.

[9] The father’s current parenting schedule is that O resides with him on Tuesdays after school, overnight to Wednesday morning, and on alternate weekends from Friday after school to Monday morning. There are also arrangements in place for holidays and vacation time. The father is seeking a week about schedule or, in the alternative, a 2:2:5 schedule whereby O would be in his care from Mondays to Wednesdays, and alternate weekends.

[10] The father brought an urgent motion that was heard on April 1, 2020 for an order restoring his parenting time with O. The mother had withheld the daughter during the father’s scheduled parenting time on at least two occasions in March 2020 as the COVID-19 pandemic ensued. Nishikawa J. granted the father’s urgent motion finding that the mother had not been compliant with the Final Order.

[11] In 2020, the parties requested that Deborah Mecklinger, a therapeutic consultant, meet with their daughter to provide a VOC report where O’s views and preferences concerning the parenting schedule, living arrangements and other issues would be provided. Ultimately, Ms. Mecklinger provided two VOC reports. I will refer to the VOC report dated December 1, 2020 as the First VOC Report.

[12] In preparation of the First VOC Report, Ms. Mecklinger met virtually with O on three occasions. She also met with the father and mother individually.

[13] In a key passage in the First VOC Report, Ms. Mecklinger reports:

O commented, “There is no way in hell they will be agreeing on anything.” Why, I asked? O said, “Because they can’t agree on anything.” Without a prompt, O then said, “Can I just tell what I want the schedule to be? I want to make the schedule, NOT their lawyers, NOT the judges, ME.” I asked O, “If you could make the schedule, what would it be?” O responded, I have no idea but if I get to do it, I would take my precious time to figure it out. I want it to be 50/50.” I asked, “Why do you want it to be 50/50?” O responded, I want to see both sides of my family.” O also added, “I hate the lawyers, they are assholes, they are very irritating and they make my life a living hell. I basically know them so well because they literally control my life.”

[14] At another point in the First VOC Report, O states, “I am fine with the current schedule but I want half and half.”

[15] The father claimed that, following the release of the First VOC Report, O confided in him that she wished to spend more time with him, but that the mother was hounding and threatening her to say otherwise. To avoid further conflict for O, and to streamline the process and avoid a potential adjournment of his parenting motion, the father agreed to the mother’s request for an updated VOC report. On February 18, 2021, Ms. Mecklinger agree to conduct two more interviews with O during each party’s parenting time.

[16] A Case Conference took place before Monahan J. on March 8 and March 15, 2021. By the second attendance, the parties were advised that the Second VOC Report would be released the first week in April 2021. Questioning was scheduled during the week of May 17 and the within motion was scheduled on June 10.

[17] The Second VOC Report was provided earlier than anticipated on March 17. Ms. Mecklinger was to meet with O on two occasions, but met only once on March 9, as O asked to cancel the second meeting and bring forward the release date to mid-March.

[18] The key passages from the 2-page Second VOC Report state:

O began the meeting by sharing the following comment, “I am changing my answer.” I responded, “What is the question?” O responded as follows, “I want the schedule to stay the same. I don’t want to spend less time with my mom.” I asked O what has changed since we last met? O stated, “I just didn’t want to hurt my parents. I want the schedule to stay the same as it is now.” I asked O what was different when we last spoke. O responded, “I didn’t want to disappoint my dad.” I asked O, “Do you think your Dad knows how you feel?” O responded, I think he does but he doesn’t.” I asked O, “Do you think your dad will be upset?” O responded, “Why wouldn’t he be?” I asked O if that worried her. O stated, “I would prefer he wouldn’t be upset.” I asked O the following question, “Do you feel that if you do want to spend more time at your dad’s you are free to do so?” O said, “Yes I do feel I can.” I asked O if she thought her mother knows how she feels. O responded, “Yes.”

I asked O to share additional feelings or thoughts that led to her current view. O stated, “I like how it is right now and I am not in the mood of change right now. I love both of my parent (sic) but I don’t want the schedule to change. I have had a lot of change. It stresses me out so much. The situation was so stressful.” I asked O, “Do you think your parents know how stressed you have been?” O responded, “They think they know because they are stressed, but I am dealing with this and I am 12.”

O stated that she did not wish to have a second meeting. O stated that she did not feel a second meeting was necessary to communicate her wishes.

The Father’s Position on the Parenting Motion

[19] The father relies on the First VOC Report as the authentic expression of O’s wishes. He characterizes the Second VOC Report as superficial and a product of the mother’s relentless pressure on O.

[20] The father strongly disputes the mother’s allegations that he presents a danger to O or that he used undue influence on O so that she would side with him in respect of the First VOC Report.

[21] The father recently purchased a new home in close proximity to the mother’s residence to facilitate an equal parenting schedule. The father’s new home is a 10-minute walk from the mother’s. The father will be moving in with his wife, DS, and their 2-1/2 year old son, H, with whom O has a close relationship.

[22] The father claims that there is no necessity for him to prove a material change of circumstance given the review provision in the Final Order. He submits that his equal parenting regime is in the best interests of O. In the alternative, if a material change needs to be demonstrated, the father points to the turmoil that O appears to be in due to the current parenting regime, which he contrasts with O’s preferences as expressed in the First VOC Report.

The Mother’s Response to the Father’s Parenting Motion

[23] The mother relies on the Second VOC Report as the more accurate indicator of O’s views and preferences. The mother submits that maintenance of the current unequal parenting plan is in the best interests of the child.

[24] The mother also relies on comments made by the father, to the effect that O was relieved to have finished the VOC process, as evidence that O is better served by not changing the parenting plan. Conversely, the mother suggests that the First VOC Report was a product of the father’s inappropriate communications with O and Ms. Mecklinger.

[25] The mother characterizes the father as abusive and controlling and unconcerned as to what is in O’s best interests. The mother claims that the father uses O as a messenger to conduct and continue his dispute with the mother.

[26] The mother disputes that the father’s motion qualifies as the review that was contemplated in the Final Order. The mother submits that the threshold to vary a final order on an interim basis is very high requiring proof of a material change in circumstances: F.K. v. A.K., 2020 ONSC 3726, per Pazaratz J. The mother argues that the father has failed to reach the threshold.

The Legal Test

[27] The parties agree that the relevant law is set out in the reasons of Pazaratz J. in F.K. v. A.K., 2020 ONSC 3726, although the mother places a stronger emphasis on how high the threshold must be before a court will permit an interim change to a final order.

[28] For the sake of completeness, I have reproduced the relevant legal test from the F.K. decision:

[48] To determine a request to change custody, access or parenting order, the court must embark upon a two-stage inquiry. Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (SCC).

[49] The first step: There must be a material change in circumstances since the last order was made.

a. There must be a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs.

b. The change must materially affect the child.

c. It must be a change which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. The change must be substantial, continuing and "if known at the time, would likely have resulted in a different order." L.M.L.P. v. L.S. [2011] SCC 64.

d. The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order.

e. If there is no material change in circumstances, the inquiry ends. The court would be without jurisdiction to vary the order. Litman v. Sherman, 2008 ONCA 485(Ont. C.A.).

f. If there is a material change, the court must move to the second stage and consider the best interests of the child and whether to vary the original order.

[50] The second step:

a. If a material change in circumstances has been established the court then embarks on a fresh inquiry into the best interests of the child.

b. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. Bubis v. Jones, 2000 CanLII 22571 (ON SC); Persaud v. Garcia-Persaud 2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642.

c. The court must ascertain the child's best interests from the perspective of the child rather than that of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child. Gordon v. Goertz; Young v. Young 2003 CanLII 3320 (Ont. CA).

d. The child should have maximum contact with both parents if it is consistent with the child's best interests. Gordon v. Goertz; Rigillio v Rigillio 2019 ONCA 548 (Ont. CA).

e. Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs. Gordon v. Goertz.

[51] The Divorce Act does not set out a detailed list of factors to be considered when determining the best interests of a child. To assist in the analysis, courts frequently refer to the best interests’ criteria as set out in section 24 of the Children’s Law Reform Act.

[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. Montgomery v. Montgomery 1992 CanLII 8642 (ON CA); Gordon v. Gordon 2015 ONSC 4468 (SCJ); Oickle v. Beland 2012 ONCJ 778 (OCJ).

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 (SCJ); Huliyappa v Menon 2012 ONSC 5668 (SCJ); Clements v Merriam 2012 ONCJ 700 (OCJ).

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.

[29] The second step is that the court embarks on a fresh inquiry into the best interests of the child. While the mother submits that the stringent legal test in F.K. is apt, I find that read in isolation, the F.K. decision may result in a judge placing too much emphasis on maintaining the status quo, which could skew the legal analysis which remains the best interests of the child.

[30] In Pooni v. Sandhu, 2020 ONSC 5357, Charney J. also set out the legal test to alter parenting on an interim basis:

[16] The Court has jurisdiction to alter custody or access on an interim basis pending trial in a motion to change a final order. In Bors v. Bors, 2019 ONSC 765, Coroza J. (as he then was) stated, at paras. 50 - 51:

There is no dispute that a court may alter custody or access on an interim motion pending trial in a motion to change a final order.

While I agree…that the general rule is that the status quo should be maintained, if there has been a material change in circumstance since the making of the final order, then custody and access can be changed on an interim basis: see Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), r. 29. (See: Papp v. Papp (1969), 1969 CanLII 219 (ONCA), [1970] 1 O.R. 331 (C.A.) and McEachern v. McEachern (1994), 1994 CanLII 7379 (ONSC), 5 RFL (4th) 115 (Ont. C.J. (Gen. Div.)), at para. 9).

[17] See also: Caparelli v. Caparelli, 2009 CanLII 73655 (ONSC), at para. 12:

Pursuant to s. 17(5) of the Divorce Act, 1985 c. 3 (2nd Supp.) and r. 15(28) of the Family Law Rules, O. Reg. 114/99, the court may grant a temporary order to vary a final order where it is satisfied that there has been a change in the condition, needs and/or circumstances of the child taking into consideration the best interests of the child or children. The change must be material rather than of a momentary kind. This is to discourage spurious applications but its purpose does not create so onerous a presumption or burden in favour of the original order that the child’s best interests are sacrificed as a consequence: see Montgomery v. Montgomery, 1992 CanLII 8642 (ONCA), [1992] O.J. No. 2299 (C.A.).

[31] The second step of the test remains the best interests of the child, but that there must be compelling evidence to support changing a final order on an interim basis.

The Review Provision

[32] The wording of paragraph 7 of the Final Order states that, after April 1, 2019, the parties may review O’s residential schedule without having to prove a material change in circumstance. The mother insists that, because this is an interim motion brought by the father, this is not the review that was contemplated in the Final Order.

[33] I disagree. The within Application was commenced by the mother in 2020 for an order in respect of increased child support, among other relief. There is nothing in the wording of the Final Order, or the 2014 Separation Agreement, that precludes the within motion from being the review contemplated by the parties. The mother relies on the F.K. decision as authority for the proposition that the father’s motion cannot be a review. But while the F.K. case involved a father seeking a temporary variation of a final parenting order, there was no review provision in the final order in that case. I find that, since it is now after April 1, 2019, the court, through the father’s motion, may review O’s residential schedule without the father having to prove a material change in circumstance. This removes the necessity of the first step in the two-stage inquiry to determine a change in the parenting regime.

Best Interests of the Child

The VOC Reports

[34] In determining what is in the best interests of the child, the child’s views and preferences are one factor among others to consider: Divorce Act, s.16(3)(e), and section 24(3)(e) of the CLRA. The successive and conflicting VOC Reports require me to determine whether the First, Second or both VOC Reports are reliable indicators of O’s position on parenting.

[35] Given the contradictory VOC Reports, it appears that, on some level, O is conflicted about her preferred parenting arrangement. The parties posit different reasons for this. The mother submits that, in the Second VOR Report, O reveals her true preference to maintain the status quo. The father says that Second VOR Report is the product of the mother’s relentless pressure on O to change her mind. But recognizing that O may be somewhat conflicted, does not mean that I am unable to determine which VOR Report is the more reliable indicator of O’s view and preferences.

[36] I consider the First VOR Report to more accurately reflect O’s true position for a number of reasons. The First VOC Report resulted from Ms. Mecklinger interviewing O on three different occasions (October 28, November 5 and November 10, 2020) for one hour each, for a total of three hours. Had O’s views waivered over the course of those interviews, I would have expected Ms. Mecklinger to have reported that. The substantive part of the First VOC Report is five pages long with a narrative about what questions were asked and what answers were given. By contrast, the Second VOC Report is just over one page resulting from a single one-hour meeting with Ms. Mecklinger. O began the latter meeting with the comment “I am changing my answer” without even being asked a question. The second meeting for the Second VOC Report was cancelled. It is difficult to discern O’s true reasons for cancellation but, overall, I have far less confidence that the Second VOC Report reflects O’s considered opinion.

[37] Substantively, in the First VOC Report, O states that she wants the schedule to be 50/50 because she wants to see both sides of her family. She says “I am fine with the current schedule, but I want half and half.” In the Second VOC Report, O states that she “likes how it is right now”, and that she does not want the schedule to change. She states “I have had a lot of change. It stresses me out so much. The situation was so stressful.”

[38] On the very contested evidence before me, I have a concern that, after the outcome of the First VOC Report, the mother was highly motivated to obtain a different outcome by pushing for a Second VOC Report. It is true that the father acquiesced to the request, but the unusual circumstances of the Second VOC Report (O answered without being asked a question, the cancellation of the second interview, the moving up of the release date) lead me to conclude that the mother exercised some undue pressure on O to change her mind after the First VOC Report.

[39] Based on the VOC Report, I conclude that O’s underlying preference is for a 50/50 parenting and residence schedule. O’s preference must be considered alongside other factors in my overall determination of what is in her best interests.

The Other Factors

[40] O is 12-1/2 years old now, on the edge of adolescence. She has stated that she loves both of her parents. The parenting arrangement changed whereby, in addition to alternate weekends, the father only had O for Tuesday evening, but that was expanded to Tuesdays overnight to Wednesday morning. Whereas there may be greater arguments for younger children to not go more than a few days before seeing the other parent, I find the justification for more frequent transitions between parents to be reduced for children of O’s age.

[41] The child should have maximum contact with both parents if it is consistent with the child’s best interests. The mother strongly asserts that the father’s motivation for this motion has to do with defending against the mother’s application for increased child support. I cannot speak to the application but, at least on the material before me, I found evidence of the father’s genuine desire to spend more time with O. I note, for instance, that he has purchased a new home in closer proximity to the mother’s residence. I also note that, in 2020, he brought an urgent motion for enforcement of parenting time when the mother withheld O over concerns about COVID. While the mother was critical of the father’s parenting, accusing him of having lingering alcohol abuse problems, I did not find a reason why he should not benefit from maximum contact with O. I also note that on the father’s side of the family, O has a 2-1/2 year old half-brother. I find that it is important that O nurture that relationship and, given the age gap, she may have a limited opportunity to do so before she reaches the stage of post-secondary education which may occur out of town. The father has remarried. In the First VOC Report, O describes the father’s wife as “really nice and fun and smart” and “just great.”

[42] On balance, I find that it is in the best interests of O that she spend equal time with the father and, as O requested, the father’s side of the family. I could end the analysis there, but I am obliged to demonstrate why the change from the status quo is compelling. I find that it is because the parties seem to agree that O is under a great deal of stress. This is not a situation where the mother is claiming that O is functioning well under the current regime. In fact, the mother claims that O could benefit from therapy but the father has been resistant. The father disputes this allegation.

[43] I also find that change to an equal parenting regime is compelling because the week about schedule is likely to provide less transitions for O between parents (who are engaged in a high-conflict dispute) and that, logistically, a week about arrangement is more conducive to greater predictability as to where O will be at any point subject to holiday and vacation exceptions. Ultimately, having found that the first VOC Report is a more accurate expression of O’s true wishes, I find that there is a compelling case for the court ordered parenting plan to align with her wishes. This does not mean that I have reduced the best interests of the child to just one factor (what the child wants based on the First VOC Report), but rather that, in the facts of this particular case, the views and preferences of the child should be accorded significant weight among the rest of the factors.

Conclusion

[44] In sum, a review is permitted under the Wilson Final order from 2017 without the necessity of a material change in circumstance. On balance, the best interests of the child favour the father’s parenting plan which is aligned with the First VOC Report, which report I consider to be a more accurate indicator of O’s true views and preferences. A week about schedule is also preferable in terms of regularity and predictability and to reduce transitions between parents. Together, these reasons make the change from the status quo compelling.

Costs

[45] The parties will be deemed to have settled the issue of costs (including with respect to the Case Conferences before Monahan J.) if I do not hear from them by July 2, 2021. The parties may contact Patrizia Generali, Family Law Assistant at the Superior Court of Justice, at Patrizia.Generali@ontario.ca.

Pinto J.

Released: June 25, 2021

COURT FILE NO.: FS-20-15295

DATE: 20210625

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

S.H.

Applicant

– and –

D.K.

Respondent

REASONS FOR JUDGMENT

Pinto J.

Released: June 25, 2021