K.P. v. K.H., 2022 ONSC 1556

Court File and Parties

Court File No.: FS-11-0041-004 Date: 2022-03-10 Superior Court of Justice – Ontario

Between: K.P., Self Represented Applicant And: K.H., Self Represented Respondent K. Costa for Office of the Children’s Lawyer

Heard: February 14, 2022, at Thunder Bay, Ontario

Before: Mr. Justice F. Bruce Fitzpatrick

Judgment on Motion

[1] The respondent K.H. (Mom) brings a motion to increase her parenting time with KAHP (K). K turned 14 on the very day this motion was heard. K was represented by the office of the children’s lawyer (OCL) on this motion. According to the OCL, K does not want to have increased parenting time with Mom. The OCL makes this submission on the basis of a six-page, 71 paragraph affidavit of a D.N., a clinician with the OCL. The applicant K.P. (Dad) also opposes the relief sought by Mom.

Background

[2] This file has a very long history. It is a high conflict case. The parties were together for one year, 2009 to 2010. They have now been separated for 12 years. Two children have been involved in this case. This motion only involves K. Her parents have been in litigation for most of K’s life. I have seen this couple on many occasions in the past in my capacity as a Superior Court Judge in Thunder Bay presiding over case conferences and motions. This is a small jurisdiction with a small judicial complement. The last attendance where I was involved was a case conference in September 2020. Before that I signed the parties divorce order in 2013. I conducted case conferences on this file on August 15, 2015, July 19, 2017, June 22, 2017, February 2, 2018, February 24, 2020, and September 20, 2020. The September 2020 attendance concerned, among other things, a motion for increased parenting time by Mom. I made an order that the motion was to be heard on or before November 13, 2020. On November 17, 2020, Newton J. made an order. The parties did not see fit to include the order of Newton J. in their materials for this motion. Mom claimed it was contained in another bundle on Caselines. I was able to locate it from our judicial secretary following the hearing. Also, there was a case conference before Nieckarz J. on December 15, 2021. The parties did not see fit to include any endorsement arising out of this case conference in their materials. Counsel for the OCL provided it to me during the course of argument. It turns out from a review of the endorsement, Nieckarz J. treated the matter as a settlement conference and expressed opinions to the parties. Nieckarz J. wrote she should not hear any further motions or the trial of this matter.

[3] The originating process that started what appears to be the road to trial number 3 for these parties is a motion to change brought by Dad December 10, 2019.

[4] Nieckarz J. directed the matter should be tried as soon as possible. Mom has retained counsel for trial who is not available for the upcoming March 2022 sitting. The next trial sitting in this jurisdiction will be in September 2022. The parties have agreed the matter will be tried in September 2022.

[5] Unfortunately, due to COVID-19 restrictions, and the fact that the court is transitioning from paper files to Caselines, I had to rely on an electronic copy of the continuing record which I had obtained for the September 2020 conference. This case has been to trial twice once in 2013 and once in 2019. I am not sure the Continuing Record in this matter has been maintained in paper form or electronic form since the beginning of the pandemic in March 2020. I am aware this is a very big and widespread problem that affects the entire practice of family law throughout the Province. However, I am doing my best with the materials the parties have chosen to place in Caselines for this motion.

[6] Mom has now placed before the Court a handwritten notice of motion dated January 13, 2022. It asked for two distinct forms of relief. One aspect, to do with Dad’s alleged interference with K’s cell phone, was dealt with by me at the first return date of this motion on February 3, 2022. The relief now sought is: a) -increased parenting time in accordance with the recommendation of Justice Nieckarz; b) to be: Interim without prejudice; c) -Thursday 4:00 – 8:00 p.m.; d) -Saturdays 11:00 a.m. – Sunday 7:00 p.m.; e) -weekly.

[7] Mom argues it is in the best interest of the child to allow her to have increased access to K. She took the opportunity during her submissions to dwell on past difficulties between herself and Dad. She was very candid in her criticisms of Dad’s behaviour toward her in the past. Mom argued that K’s view and preferences should not be given any weight on this motion. She submitted that K has been unduly influenced by Dad and that the investigation of the OCL has not been in depth enough to allow the Court to rely on the affidavit material filed. Mom advised the court she is Indigenous. Mom’s affidavit material did not elaborate on how this particular aspect of her personal status had any impact on her request for an interim order for increased access to K.

[8] Dad opposes any increased access or change in the existing schedule. He believes it will create more, and not less, conflict, between K and Mom. Dad advises he actively encourages K to see Mom even when she says she does not want to. Dad notes the preference of K to leave the status quo in place should be taken into account. Dad noted this motion is the first time he was advised Mom is Indigenous.

[9] The OCL’s material contained the views and preferences of K concerning Mom’s request. It was obtained after one meeting. The material outlined in detail the objections K has to Mom’s request. The material noted K was cooperative, engaged and polite. K did not appear to be distressed at any time. Among other things K expressed a) she does not want to change the current arrangement; b) when she went to live with her father in March 2020 she had wanted to live there “for a while”; c) she argues a great deal with Mom when she is with her; d) she is aware her mother has recently been incarcerated; e) she likes living with her Dad because the house is cleaner and it is more peaceful than Mom’s place. Mom’s place has seven dogs and she does not like all the dog hair in the house; f) when she visits Mom sometimes it is good and sometimes it is bad; g) she likes the current access arrangement and thinks it would be better if Mom stopped trying to force her to live with her; h) Mom spends a lot of time smoking, making TikTok videos and texting when K is with her. Sometimes Mom is nice to her sometimes she is not; i) her first wish is for Mom to get along with people and not argue.

[10] Counsel for the OCL commented she was concerned about K becoming the main decision maker on the issue of access.

Analysis

[11] I am treating this matter as being governed by the Divorce Act as that is how the matter originally commenced. The existing parenting arrangement was set by the order of Newton J. in November 2020. It was obtained after a contested motion. This is significant because at paragraph 10 of the endorsement Newton J. set in place the following parenting arrangement for K to visit with Mom. a) Wednesday 4:00 to 8:00 p.m. every week; b) Alternate Saturdays from 10:00 to 8:00 p.m.; c) Exchanges to occur at a local donut shop.

[12] In my view, the order of Newton J. recognized that K will live primarily with Dad pending trial. It was also significant that Newton J. said that the order did not preclude the parties agreeing to additional access. It also stressed the importance of having the OCL involved to obtained K’s views and preferences.

[13] Recently the Divorce Act has been significantly amended. Important changes were made to section 16 dealing with parenting orders. Among other things, Parliament sought fit to more particularly describe the factors courts are to consider when determining what is in the best interests of a child in respect of a parenting order. I will deal with those below.

[14] However, what was not materially amended were the provisions of section 17(5) dealing with factors regarding the variation of a parenting order. Section 17(5) requires the court to satisfy itself that there has been a material change in circumstances of the child since the making of the order or last variation made in respect of an order.

[15] In my view Mom’s material does not address this threshold issue. She provides particulars of changes to her life, but these do not address any material changes to K life. Mom notes she was a victim of domestic violence, but this was not at the hands of Dad. It occurred in 2017 to 2020 when the parties had long separated and Mom was with another partner. I do not see the ongoing dispute about the paternity and care of O, K’s sibling, as materially affecting K in a way that would constitute a material change in circumstances. This has been an issue between the parties for a long time, back to 2017 at least. Also, the fact this matter has not moved along falls on both parties.

[16] The court is also concerned about K’s alleged incident of a drug overdose on October 4, 2021. This will take a trial to sort out if the parties believe this alleged incident materially impacts on with whom and where K should live in the future.

[17] I also find that Mom’s material does not demonstrate how a change in the existing temporary order would be in K’s best interests. Relying on the factors set out in section 16(3) (a) through (k) of the Divorce Act, I make the following findings based on the material before the Court. I will connote the particular sub section of the Divorce Act I am referencing by using the subparagraph number of the particular subparagraph. For example, I’ll deal first with section 16(3)(a) a) K is 14. She is approaching an age where she will be able to make her own decisions as to parenting time. She is not there yet however. I see stability in the present arrangement. I agree with Dad’s submission that a change will destabilize the situation for K. I am making an order with respect to future motions below that is designed to minimize the stress on K pending a trial of this matter; b) K has a relationship with both parents. Dad actively encourages K to visit Mom. K is regularly visiting Mom and can see O when she does. I did not have sufficient information about grandparent involvement on this motion. I do not agree with Mom’s bald submission that the current arrangement is damaging her relationship with K; c) Dad says he encourages K to visit Mom. Mom actively disparages Dad’s parenting ability; d) the history of the care of the child is complex. Much of it has been reflected in the twists and turns of orders given in the past. In my view, the most recent order of Newton J. reflects an appropriate status quo arrangement pending trial; e) K does not want to change the parenting arrangement at this time. She provides cogent and convincing reasons for her position. Contrary to Mom’s submissions I am not prepared to disregard K’s views and preferences on this motion. They are an important factor in considering what is in K’s best interest at present; f) K does not have status as an Indigenous person. Mom’s materials do not provide any details as to any Indigenous upbringing or heritage respecting K that would be impacted by any proposed changes to the parenting arrangement. There was no other evidence respecting K’s cultural, linguistic, religious or spiritual upbring placed before the Court; g) neither party filed a parenting plan; h) there is no issue both Mom and Dad are willing and able to meet K’s needs and already are doing so on a regular basis; i) this is a high conflict case. Mom and Dad are not able to communicate and cooperate in matters affecting K; j) there was no persuasive evidence filed on this motion respecting family violence between Mom and Dad; k) there was no evidence filed on this motion that revealed any civil or criminal proceeding that was relevant to the safety, security and well-being of K;

[18] For all these reasons I do not see it in K’s best interest to change the current parenting arrangement as requested by Mom.

[19] Mom’s motion is dismissed.

[20] If Dad or the OCL request costs for the motion they shall file a one page request for costs, with any offers to settle the motion attached within fifteen days of release of these reasons. If they do not file any request, this motion will be considered as dismissed on a without costs basis. If they do file a request, Mom can file a one page reply within seven days of the receipt of the request. All submissions for costs shall be filed in Caselines in the “Motion February 14, 2022” bundle.

[21] I also order that neither party shall bring any further motions in this matter without leave of the court pending trial of Dad’s motion to change. I do this in an attempt to promote some stability in the life of O and K.

“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick

Released: March 10, 2022