COURT FILE NO.: FC-09-1135-05
DATE: 20220815
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J.C.
Applicant Father
– and –
C.N.
Respondent Mother
Arnold Schwartz, for the Applicant Father
Manfred Schlender, for the Respondent Mother
Stephanie Tustin, counsel for the child, A.C.
Farrah Manji, counsel for the Durham Children’s Aid Society
HEARD: July 28, 2022
RELEASED: August 15, 2022
JUSTICE ALEX FINLAYSON
PART I: OVERVIEW
[1] The parties have two children, I.C., age 16 and A.C., age 13. For several years, the children resided with their father primarily. The most recent governing Order confirming this arrangement is the Final Consent Order of Rowsell J. dated June 13, 2019, but numerous other orders had been made before this one. In early 2021, the mother launched a Motion to Change to vary this Order.
[2] Beginning on December 23, 2020, the father was investigated in relation to two sexual offences towards a young girl. The Durham Children’s Aid Society (the “Society”) told the father that I.C. and A.C. could not remain in his home pending the criminal investigation. The Society made arrangements with the consent of the father, for the children to reside temporarily with a neighbour.
[3] The father was arrested and charged on January 12, 2021. At that point, the Society was still exploring different options for I.C.’s and A.C.’s care, as the neighbour was no longer willing to keep the children.
[4] On the same day of his arrest, the mother commenced this Motion to Change seeking to vary the Final Order of Rowsell J. dated June 13, 2019, asking that the parties’ two children would now reside with her primarily, and seeking orders that the father not have any parenting time, or alternatively supervised parenting time. The mother brought an urgent ex parte motion on the same day. Leef J. dismissed it, as the mother’s affidavit was lacking in important detail, but she granted the mother leave to bring a new motion within 14 days, on notice to the father and she directed her Endorsement be sent to the Society.
[5] The mother instead brought a second ex parte motion, two days later. On January 14, 2021, and then on the review on January 27, 2021 and April 8, 2021 with notice to the father, Hughes J. made orders that the children would reside with their mother, and that the father would have parenting time, supervised by a person approved of by the Society, among other terms.
[6] The terms of the father’s bail did not prohibit him from having contact with I.C. and A.C. Notwithstanding Hughes J.’s Orders, I.C. did not remain with his mother for very long. By July 12, 2021, I.C. was returned to his father’s care, on consent. But A.C. continued to reside with the mother.
[7] On March 30, 2022, a little over a year after the father’s arrest and the commencement of this latest round of family litigation, the father was acquitted of the charges against him. The parties now disagree whether the previous parenting arrangements in the Final Order of Rowsell J. dated June 13, 2019 should be re-instated.
[8] In May, 2022, the father obtained leave to bring this motion. In his Notice of Motion dated May 24, 2022, the father asked the Court to “set aside” the temporary Order of Hughes J. dated April 8, 2021. During submissions, counsel reframed the father’s claim as a request to vary, on a temporary basis, Hughes J.’s temporary Order of April 8, 2021, which had already varied portions of the Final Order of Rowsell J. on a temporary basis.
[9] It was the criminal charges alone that led Hughes J. to vary aspects of the Final Order of Rowsell J. dated June 13, 2019 in the first place. The narrow issue that Hughes J. had to decide, was what temporary parenting arrangements should be put in place, given the pending criminal charges against the father, and the corresponding risk to these children.
[10] Circumstances have now changed following the criminal trial and the father’s acquittal. The mother says that she is content for A.C. to return to the father’s primary care, but A.C. does not want that. Both the mother, and counsel for the child, would have the Court place great weight on the child’s wishes. They say they are essentially dispositive.
[11] Were the Court to give effect to these positions, it would not only be continuing Hughes J.’s temporary Order, but it would also have to vary the Final Order of Rowsell J. dated June 13, 2019 in a different way, now to bestow upon the mother educational decision-making on a temporary basis. That is because A.C. remaining with the mother entails a change in their school for high school. And the mother has no interim motion for this before the Court.
[12] Moreover, the previous governing Order of Rowsell J. dated June 13, 2019 not only provided that the father was the children’s primary parent, but it also imposed a plethora of restrictions on the mother’s parenting time. This is important additional context that this Court must take into account in deciding this motion.
[13] There is a lengthy history of high conflict parenting litigation between these two parents. Exclusive of this ruling, there have been twenty-five Endorsements and Orders made by nine different family court judges, in addition to the criminal proceedings. The father raises concerns (and this Court in the past made certain findings) that the mother has engaged, or is engaging, in parental alienation. He says that his relationship with A.C. is at risk, if A.C. remains with the mother any longer. Whether there is such a risk to A.C. from remaining in the mother’s care, has not been specifically dealt with on its merits since the Final Order of Rowsell J. dated June 13, 2019 was made.
[14] For the reasons that follow, I find that the father’s acquittal is a material change in circumstances since Hughes J.’s April 8, 2021 Order. Based on that, and the other evidence that has been put before me at this stage of the case, I find that the Final Order of Rowsell J. dated June 13, 2019 should be re-instated. I find that A.C.’s views and preferences should not receive the almost dispositive weight that has been argued for at this time. There will need to be a more holistic weighing of the wishes, in the full context of all of the evidence, once it is tested at a trial. Whether there is any risk to A.C. in the mother’s care and/or the ongoing necessity of the restrictions in the Final Order of Rowsell J. dated June 13, 2019, will have to be dealt with in due course too, if that is pursued.
PART II: BACKGROUND
A. The Prior Proceedings
[15] The Continuing Record in this case is eight volumes thick. There have been many rounds of litigation. At the Court’s request, counsel for the father prepared a chart summarizing the prior proceedings concerning this family. The chart also references the separate criminal proceeding before Green J. of the Ontario Court of Justice, earlier this year.
[16] The father’s summary reveals that this family has been before this Court, off and on, for over 12 years. It appears that the initial family proceedings began in or around 2009, when I.C. was about 4 years old, and A.C. was not yet 1 years old.
[17] A very early Order of this Court provided that the children were to reside with the father, and the mother was to have supervised access. By 2011 and 2012, the parents moved to a week about schedule with the children. That did not last long. Starting in 2012, the children were again in their father’s primary care. That is the status quo that continued right up until the criminal investigation of the father beginning in late December 2020.
[18] Although the mother was not a complainant in the most recent criminal case against the father, it is noteworthy that this is not the first time that the father has been subjected to unverified or unproven allegations, and the mother was involved in making allegations before. In fact, it appears that the children came into the father’s care in the first place in 2012, following a series of actions on the part of the mother, including allegations that he had sexually abused A.C.
[19] For example, the father filed an OCL report dated July 9, 2012, prepared pursuant to section 112 of the Courts of Justice Act for one of the previous rounds of the family litigation, that raised concerns about the mother’s allegations against the father, and her behaviour as an unfriendly parent. The mother was subsequently the subject to contempt proceedings. On January 10, 2013, O’Connell J. found the mother in contempt. He imposed a 30-day sentence of incarceration as a sanction for the contempt. In his reasons for judgment, O’Connell J. found that such a sentence was only way to dissuade the mother, and to appropriately address her conduct. He found:
(a) The mother had made multiple allegations that the father had sexually abused A.C.;
(b) The allegations were not verified;
(c) The mother denied the father his access, until the children finally came into his primary care;
(d) The mother admitted that she was in contempt;
(e) The mother’s contempt was not a “one-off”; rather, it was a pattern of behaviour;
(f) The mother behaved unreasonably, tactically, and was driven to defeat the father, not only in relation to his ability to see the children, but she was also motivated to defeat him psychologically;
(g) The mother exposed the father to stigma and vilification; and
(h) Meanwhile, the father behaved reasonably throughout, while being hit with a “cascading series of allegations”.
B. The Final Consent Orders of Rowsell J. dated June 13, 2019
[20] The penultimate round of family litigation resolved by way of two Consent Orders of Rowsell J. dated June 13, 2019. One of those orders deals with parenting. The other is a restraining Order. The Orders are also somewhat unusual, in that they are consent Orders, but they contain numerous onerous terms governing the mother’s parenting time, seemingly geared towards addressing the mischief that went on in the years prior. Many of the terms are similar or identical to various terms previously ordered earlier on in the proceedings, including in a different consent Order of Bale J. made on September 11, 2014.
[21] The main Order of Rowsell J. dated June 13, 2019 addresses parenting. It is 26 paragraphs long. Pursuant to it, the father has sole custody of both children, something which he already had from prior Orders. There is a police enforcement clause, something that had also been ordered previously too.
[22] The mother has access on alternating weekends during the school year, with exchanges to occur in a public location. The parents have a week about schedule during the summers. There are other provisions respecting holiday time.
[23] Various terms provide for the suspension of the mother’s parenting time in certain circumstances. For example, the father is only required to wait for the mother for 30 minutes at the outset of a visit, after which he is permitted to leave, and the mother’s visit is forfeited. The mother is prohibited from taking the children to a doctor or other health care provider outside of an “extreme emergency”. The mother is prohibited from making “false or groundless accusations” concerning the father to a child welfare agency, the police or a school, and she is prohibited from persuading others from doing so on her behalf. The mother is also prohibited from performing any physical examinations of an intimate nature on the children, except as directed by a physician. The father is empowered to bring a Motion to Change, including the possibility of doing so without notice to the mother, to cancel her access, if she breaches some of these terms.
[24] The corresponding restraining Order of June 13, 2019 not only prohibits the mother from attending within 500 meters of the father’s home or place of employment, but it also prohibits the mother from communicating directly or indirectly with the father’s family, friends, employers, teacher, or school administrators. It prohibits her from accusing the father of being a “wife beater, child molester, rapist, drug addict, nor any other false character defamation at any time for any purpose”.
C. The Temporary Orders of Hughes J. dated January 14 and 27, 2021 and April 8, 2021
[25] The father says that he had a warm and loving relationship with the children, but all that changed on January 12, 2021 when he was arrested and charged.
[26] Leef J. dismissed the mother’s first ex parte motion on January 12, 2021 because she found that the mother had not put before the Court any information about the precise nature of the allegations, or the status of the investigation. In directing that the motion should proceed on notice, Leef J. also wrote that when the mother brought this first ex parte motion, she had not seen the children since October of 2020, and Leef J. noted the existence of the numerous restrictions in Rowsell J.’s Order. Again, Leef J. directed that her Endorsement be sent to the Society, but it is not clear that was immediately done. And I have been told, through the affidavit of Kevin Anderson sworn July 25, 2022 (see below), that when the mother brought this first motion, the Society was not considering the mother as a candidate with whom the children would be placed pending the investigation.
[27] Although on January 12, 2021 Leef J. gave the mother leave to bring another urgent motion, this time on notice to the father, the mother seems to have ignored the requirement to serve the father, and she came back two days later with the second ex parte motion, now before Hughes J. In her Endorsement of January 14, 2021, Hughes J. noted that there was some corroboration about the criminal charges, since the father was in bail court that day. Hughes J. made a temporary without prejudice order that the mother would have care and custody of the children until further order of the Court. She otherwise granted a short adjournment to January 27, 2021, to allow for the father’s response. She directed that her Endorsement be served upon the Society, just as Leef J. had done on January 12, 2021, and she directed, again, that Leef J.’s Endorsement of January 12, 2021, should be sent to the Society, too. She asked the Society to provide a summary of their involvement. I have been told through the affidavit of Kevin Anderson sworn July 25, 2022 (see below) that the first return date on this second ex parte motion happened one day after the Society told the mother it was not considering a placement with her.
[28] The next Endorsement in the record is that of Hughes J. dated January 27, 2021. The Society must have received the previous Endorsements by this point, because the January 27, 2021 Endorsement states that the Society provided a fulsome summary. The Endorsement also states that father had responded to the motion with a lengthy affidavit, but the mother needed time to reply to it.
[29] On consent, Hughes J. adjourned the motion to permit the mother that opportunity to reply. In the meantime, she ordered that the children were to remain in Durham, and that they were continue attending their current school. [^1] She also appointed the Office of the Children’s Lawyer (the “OCL”) for the first time.[^2]
[30] Not on consent, Hughes J. continued the term in the previous order of January 14, 2021, that the children would reside with their mother. She empowered the mother to make day-to-day decisions necessary to provide for their care. This did not bestow upon the mother decision-making over major decisions including about education. Quite to the contrary, Hughes J. preserved the status quo respecting education, by making the Order requiring the children to remain in their existing school. She also made a further order that the father could have supervised parenting time, with the Society approving the supervisor. The Society consented to be bound to this term.
[31] The matter next came back before the Court on April 8, 2021. By that date, allegations were made that the father had some unsupervised parenting time with A.C., contrary to the terms of the January 27, 2021 Order. Hughes J. admonished the father for this. In the result, she continued the temporary Order of January 27, 2021, but added a term that if there were any more violations of the requirement for supervision, the father’s visits were to be suspended until further Order.[^3] Hughes J. also asked the OCL to reconsider its decision not to get involved.[^4]
D. The Involvement of the Durham Children’s Aid Society
[32] Kevin Anderson is a child protection worker with the Society. As set out above, the Society filed a summary letter for Hughes J.’s benefit for the appearance on January 27, 2021, and another one for my benefit for the appearance on July 4, 2022 (this was done at the request of this Court - see below). Mr. Anderson also filed an affidavit sworn July 25, 2022 for this motion heard on July 28, 2022 (the Society was given the option to file this - see below also).[^5]
[33] Mr. Anderson’s affidavit reveals that the criminal investigation was first brought to his attention on December 23, 2020. After contacting the mother, Mr. Anderson then met with the father and the children, who were still in his care. Mr. Anderson told the father that the children would have to live elsewhere over the upcoming holiday period, but that he would revisit the situation after the holiday, to come up with a longer-term plan. According to Mr. Anderson, the father agreed to this, and they made arrangements for the children to reside with a neighbour.
[34] Mr. Anderson says that on January 5, 2021, the mother called him worried about the children, but he told her that the father had custody of them, and the children were safe. Then, on January 7, 2021, the father called the Society and said he wanted to know “what was going on or have his daughter returned home”. Mr. Anderson told the father that the Society was still looking into “the protection worries” and requested that A.C. remain at the neighbour’s home, for a further five days.
[35] On January 7, 2021, counsel for the Society and counsel for the father exchanged emails about this ongoing temporary arrangement. Counsel for the Society told the father’s lawyer that if the father insisted on having A.C. come home, “the Society would be effecting a removal”. In the end, the father, through counsel, agreed to have the children remain with the neighbour, until January 12, 2021. The end of that five-day period fell on the day that the father was charged.
[36] Following the father’s arrest, Mr. Anderson embarked upon further discussions with the neighbour about a kindship assessment “given that she was caring for [the children]”. But the neighbour was unwilling to undergo a kindship assessment. Another neighbour was suggested as an alternate.
[37] On January 13, 2021, the day after her first, failed ex parte motion, the mother called Mr. Anderson saying that she wanted the children “placed in her care”. She also told Mr. Anderson that she had been unsuccessful with her motion the day before, but she was going to try again. Mr. Anderson told the mother that the Society “was not moving the children as the custodial parent had made arrangements for them”.
[38] Mr. Anderson says it was his intention to have discussions with the children about where they would like to live. He did then have those discussions. Neither child said they wanted to live with the mother, and A.C. expressed interest in remaining with I.C. But on January 14, 2021, in the midst of these discussions, the mother informed Mr. Anderson that she had obtained “care and custody of the children”.
[39] Mr. Anderson denies advising the mother that she should seek an “emergency custody order”. He denies that he told her what to seek in the Order. He admits that his supervisor may have mentioned something to this effect to the mother, although he says that conversation apparently occurred on the same day that the mother obtained the first order of Hughes J. Thus, he says this conversation either occurred after the fact, or it was about a subject that was “already in progress”.
[40] In any event, the Society remained involved for the remainder of 2021, at Hughes J.’s request. In particular, it was involved in approving and dealing with issues with the father’s supervisors.
[41] The Society revoked its approval of three of the father’s four supervisors in the first part of 2021, after A.C. disclosed that some of the visits had been unsupervised, contrary to Hughes J.’s January 27, 2021 Order. This issue was dealt with by Hughes J. on April 8, 2021, as explained above. These events caused an interruption to the father’s parenting time, as the pool of supervisors was reduced.
[42] On July 8, 2021, the Society hosted a meeting about the supervision. During the meeting, the father continued to maintain that the visits had been supervised. In any event, Mr. Anderson says the Society reviewed its expectations of the supervisors at that meeting, and then it reinstated its approval of the supervisors, that it had previously revoked. There were no further issues with supervision after that meeting apparently, but there were other issues with the visits.
[43] In January 2022, approximately two months before the outcome of the father’s criminal trial, the Society decided it was going to close its file. According to Mr. Anderson’s affidavit of July 25, 2022, the Society was not providing further service to the family, apart from doing home visits and he said there were “no child protection concerns in terms of the children’s placement with [the mother] or the access visits that were occurring”.
[44] But according to the father, there were problems with his visits. In fact, he stopped seeing the child in person in October 2021. While the father says he continued to have other forms of contact with A.C., around the time the Society closed its file or soon thereafter, all of those forms of other contact were cut off.
E. The Case Conference Before Leef J. on June 14, 2021 and the Consent Order of Nicholson J. dated July 12, 2021
[45] The next event in Court following the initial motions before Hughes J. was a case conference, now before Leef J., on June 14, 2021. It appears the focus of this conference was I.C.
[46] As set out earlier, I.C. did not reside with his mother for very long after Hughes J.’s initial Orders. Leef J. noted in her Endorsement that at that point, I.C. was living with a family friend, and he had chosen to have very limited contact with the mother. She also noted that the father wanted I.C. returned to his care.
[47] Leef J. directed the trial coordinator to schedule an urgent motion within the next 45 days to address where I.C. would reside. She also made another order for the father to have supervised parenting time to A.C.
[48] The motion respecting I.C. was never brought. On July 12, 2021, the parties filed a 14B Motion, on consent, for I.C.’s return to his father’s care, which Nicholson J. granted.
F. The Father’s Criminal Trial and Acquittal
[49] Counsel for the father placed before this Court a transcript of Green J.’s reasons dated March 30, 2022, acquitting the father of the charges against him following his criminal trial in the Ontario Court of Justice. The reasons reveal that at the time of the criminal trial, the complainant was 11 years old, but the incident giving rise to the charges was said to have occurred several years earlier. That child used to be a friend of A.C.’s. This was at a time when the father was in some kind of romantic relationship with that child’s mother.
[50] The alleged incident was said to have occurred on a day when the complainant was over at the father’s house, playing a game with the parties’ two children. Green J. referred to the child’s account as both “incredible” and “implausible”, for numerous reasons. She pointed out a number of inconsistencies in the child’s testimony. She also found the child had a strong motive to fabricate the allegations, as she was upset about the father’s relationship with her mother. According to the reasons, during the child’s testimony, the child proudly pronounced: “I put a stop to that”.
[51] Green J. separately found the father was an “impressive witness who was completely unshaken during cross-examination”. Applying the W.D. framework, she believed the father’s testimony. She also would have acquitted him on other bases, had she not made that finding.
G. The Current Motion Before the Court
[52] On May 5, 2022, the father filed a 14B Motion to request an urgent date for this motion. On May 16, 2022, Leef J. directed the trial coordinator to book a motion date, prior to June 29, 2022.
[53] The father’s motion first came before me on June 20, 2022. I was given some information in the affidavits about the history of this matter, the criminal proceeding and its outcome, and the past involvement of the Society.
[54] But as set out above, the mother took the position that A.C. no longer wanted to reside with the father, and she even went so far as to say that A.C. did not want to see him at all. She also raised the fact that A.C. was questioning their gender identity, and that this is relevant to this motion and to the nature of the child’s relationship with the father.
[55] The father said there was parental alienation. His counsel invited the Court to review historical material in the Continuing Records.
[56] This motion was properly a long motion and the issues now appeared to center around A.C.’s views and preferences. It was my view that it became even more imperative that the OCL finally get involved, notwithstanding its two previous decisions to decline this Court’s referrals.
[57] Instead of hearing the motion on June 20, 2022, I appointed the OCL for the third time. I also indicated in my Endorsement of that date, that I required evidence from the Society as to its involvement with the family, its involvement in the children’s placements, its role in supervising the family under Hughes J.’s Orders, and its reasoning for closing its file, prior to the conclusion of the criminal trial. I put this matter over to July 4, 2022, to see if the OCL would accept the Court’s third referral, to receive some evidence from the Society, and for scheduling.
[58] The OCL agreed to provide counsel for A.C. after that. Ms. Tustin appeared on July 4, 2022 as counsel for the child. She already had some preliminary views and preferences from A.C., which were communicated to the Court. The Society filed a summary letter with the Court for the July 4, 2022 appearance, and Ms. Manji appeared on behalf of the Society, too. The Society later filed the aforementioned affidavit of Mr. Anderson, for the motion itself.
[59] During these preliminary attendances, I learned that the father had not seen A.C. in several months. After having heard the preliminary views and preferences from Ms. Tustin, I asked Ms. Tustin meet with the parents, and to see if a reintroduction by way of some visits could be arranged. Ms. Tustin was instrumental in arranging a number visits between the father and A.C. between July 4, 2022 and the return of the motion.
[60] With those preliminary matters now resolved, I re-scheduled this motion to proceed as a long motion on July 28, 2022. I made a scheduling Order for the exchange of additional materials, which included giving the Society the option to file an affidavit and the right to make submissions.
[61] At the conclusion of argument on July 28, 2022, I advised the parties I was going to reserve. Pending the release of this decision, I ordered the parties to follow the week about schedule in the order of Rowsell J. dated June 13, 2019 for the remainder of the summer. I also ordered the parties to arrange for counselling between the father and A.C. Ms. Tustin once again helpfully agreed to assist, this time with arranging counselling.
PART III: ISSUES AND ANALYSIS
A. The Relevance of the Material Changes in Circumstances That Are Being Asserted
[62] There are two or three new developments, that may militate in favour of, or against changing Hughes J.’s April 8, 2021 temporary Order on a temporary basis on this motion. In my view, these new developments are best dealt with in a material change analysis, without the need to resort to the initially framed argument of the father, that Hughes J.’s April 8, 2021 Order should be “set aside”.
[63] The material change relied upon by the father is his acquittal. He says that militates in favour of changing Hughes J.’s Order of April 8, 2021, to re-instate the Final Order of Rowsell J. dated June 13, 2019.
[64] The new developments relied upon by the mother, and the OCL, are the new status quo created by Hughes J.’s temporary Orders, and A.C.’s views and preferences, which they say developed over the past approximately 18 months while the new status quo was in place. These arguments have dual, and possibly triple relevance to the issues now before the Court.
[65] First, the mother and the OCL essentially say that these new developments militate against changing the Order at this time. In other words, even if there is a change in circumstances flowing from the acquittal, there is a different change that counter- balances the former one.
[66] Second, as I alluded to earlier, the mother’s and the OCL’s positions engage a question about whether the Final Order of Rowsell J. dated June 13, 2019 should be differently varied on a temporary basis at this time to address the school issue. Although counsel for the father pointed out that the father still has decision-making responsibility about education, this motion seemed to proceed largely on the basis that the choice of school would flow from this Court’s decision about the child’s residence. But that is not necessary so. None of the counsel squarely addressed the somewhat different legal considerations that apply to this issue, given that the “custody” provision in the Order of Rowsell J. dated June 13, 2019 is a final term that still stands.
[67] Third, in addition to being a potential material change, the child’s views and preferences are also an important consideration in the Court’s determination about what Order to make in any best interests’ analysis that follows, if the Court finds a material change in circumstances has occurred on either of the bases being asserted.
B. The Applicable Legal Principles Respecting the Material Change Threshold in General, and the Variation of a Temporary or Final Order on A Temporary Basis
[68] There are three groups of principles, or perhaps nuances in the approaches that apply to the variation of the parenting orders in this case. The first is the overall material change in circumstances test that applies to the variation of all parenting orders, irrespective of whether they are final or temporary orders, or whether they were made on consent. The second is where the variation of either a final or a temporary order is being sought, but on a temporary basis prior to trial. That is also in issue here. The third pertains to the situation where an Order sought to be varied was made on consent. That is also in issue, given the issue about A.C.’s high school now raised.
[69] Section 29(1) provides that a court shall not make an order varying a parenting order or a contact order 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. Various, well-established principles govern a material change analysis under section 29: see Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27; see L.M.P. v. L.S., 2001 SCC 64; see Roloson v. Clyde, 2017 ONSC 3642; and see Van de Perre v. Edwards, 2001 SCC 60.
[70] In particular, the Court must first be satisfied that there has been a change in circumstances since the making of the prior order and the change in circumstances must be material, meaning that if known at the time, would likely have resulted in different terms. The focus is on the prior order and the circumstances in which it was made. The change should represent a distinct departure from what the Court or the parties could reasonably have anticipated in making the previous order. The change should be significant and long-lasting.
[71] Because Hughes J. has already varied the Final Order of Rowsell J. dated June 13, 2019 on a temporary basis, because the father’s motion concerns whether that temporary Order should be varied once again, and because to give effect to the mother’s and the OCL’s positions on the child’s primary residence engages the education issue and that would require the Court to vary the Final Order of Rowsell J. dated June 13, 2019 on a temporary basis, there may be additional, more stringent considerations.
[72] There is a line of authorities that discourages multiple temporary variations of temporary orders in a case prior to trial. Similar principles caution against changing a final parenting order on a temporary basis too, absent compelling or exceptional circumstances: see for example F.K. v. A.K., 2020 ONSC 3726.
[73] On the other hand, there is another line of cases that suggests a softening of this more rigid approach may have developed in the jurisprudence. Although in J.D. v. N.D., 2020 ONSC 7965 she was talking about the applicability of the compelling circumstances test in the context of an interim motion to implement an assessment report prior to trial, MacKinnon J. nevertheless wrote about this possible shift in the jurisprudence at the interim stage of a case. At ¶ 17-18, MacKinnon J. set out some alternative factors to an exceptional circumstances test, that include a consideration of the magnitude of the change sought compared to the status quo, and the assessment of other evidence that might support (or not) the change sought. She also set out certain other considerations that are unique to interim motions involving assessment reports, and which are therefore not relevant for the purposes of this decision.
[74] Finally, the approach to the variation of an Order is adapted somewhat when the Order sought to be varied was made on consent. While I recognize that Hughes J.’s temporary Order of April 8, 2021 is the immediate focus of the father’s motion and that Order was not made on consent, again the Final Order of Rowsell J. dated June 13, 2019 was a consent Order, and its decision-making terms are engaged because of the education issue that is tied up in the parties’ positions about A.C.’s views and preferences about their primary residence and their school. Therefore, in the case of the variation of a consent Order, the Court may examine it to see if it reveals whether the parties contemplated that a particular change might give rise to a later variation, or not. The subsequent conduct of the parties may also provide an indication as to whether they considered a particular change to be material.
C. Findings Respecting These Tests
(1) Findings Relating to the Father’s Acquittal
[75] There is no question that the acquittal is a material change in circumstances since Hughes J.’s April 8, 2021 Order. It is clear is that in early 2021, evidence was put before the Court that that the father had been charged, and thus he may be a risk to these children. The Society did not launch a protection application. The Court had no choice but to act when the mother’s motion came before the Court.
[76] I agree with counsel for the father that was the only basis for the Court’s intervention at the time. And the concerns about this risk were not proven in the criminal process that followed. The father was not only acquitted, but he was acquitted in strong terms. No one has brought a Wagg motion. No one is now arguing that for the purposes of this family law case, this Court should find on a balance of probabilities, that inappropriate sexual behaviour still occurred, notwithstanding the acquittal. And importantly, the Society, which is tasked with the responsibility for the protection of children in Ontario, chose neither to launch a protection application, or even keep an open file for the entire duration that the criminal proceeding was pending. The Society was also present at certain events in this case, including for the entire argument of this motion. Different options were argued for, and the Society took no position about any of them.
[77] For the further reasons that follow below, I find that this material change in circumstances, coupled with the other evidence that I will analyze, satisfies the more stringent compelling circumstances test warranting the re-instatement of the Final Order of Rowsell J. dated June 13, 2019. So too would that result follow if the more relaxed test articulated by MacKinnon J. in J.D. v. N.D. applies. Respecting the latter test, I find that the re-instatement of the Final Order of Rowsell J. dated June 13, 2019 does not represent a significant departure from the status quo; rather it restores it.
(2) Findings Respecting the New Status Quo and the Child’s Views and Preferences At The Threshold Change Stage of the Analysis
[78] In regards to the passage of the approximately 18 months since this case began, during which the father was charged, A.C. went to live with the neighbour and then the mother, the father was acquitted, and this motion was brought, and in regards to the interrelated impact of all that on the child’s view and preferences, for the further reasons that also follow below, I find the record before me to be insufficient to find a significant and long-lasting change. The alleged change in the child’s views and preferences is not as strong and consistent as the mother and the OCL submitted. There also remains the concern about the mother’s past behaviour, whether she influenced the views during the past 18 or so months, and about whether A.C.’s relationship with the father is at risk if A.C. remains in the mother’s care. These matters need to explored.
(3) Findings Respecting the Education Issue At The Threshold Change Stage of the Analysis
[79] In regards to the education issue, there is nothing in the Final Consent Order of Rowsell J. that assists the Court to determine where there has been a change. There is nothing in the parties’ subsequent behaviour that assists either. And Hughes J. did not decide this issue on a temporary basis on April 8, 2021. Quite to the contrary, she specifically preserved the status quo respecting education. If it turns out that the mother took the child on a tour of the high school and then completed the enrollment (see below), she was not entitled to do this.
[80] For similar reasons that follow, in particular those relating to the strength of the child’s views and preferences, I see no compelling reason to vary now, the Final Consent Order on a temporary basis, to effect a school change. And even the more relaxed test is not met respecting this issue either, if it applies. Such a change prior to trial would represent a significant departure from the status quo.
(4) Findings Respecting the Father’s Request to “Set Aside” Hughes J.’s April 8, 2021 Order
[81] In light of the above, I need only briefly address the father’s other argument, to the extent his initial framing of this motion as a request to “set aside” Hughes J.’s Order is even still before the Court. It is my view that this motion is better dealt with as a variation under section 29 of the Children’s Law Reform Act, for two reasons.
[82] First, the father is unable to fit his request to “set aside” within any of the enumerated subsections of rule 25(19) of the Family Law Rules. While his request to set aside may be based on some other inherent jurisdiction of the Court to set aside its own orders to do justice, I would still observe that Hughes J. did not vary the Final Order of Rowsell J. dated June 13, 2019 because the father was guilty of an offence; she did so as a result of the pending charges, and the potential risk to these children. The acquittal does not undermine the basis of Hughes J.’s Order, although it certainly is a new circumstance that warrants a reconsideration of the risk.
[83] Second, I would also find that the Court should not just “set aside” the Order even now that there has been the acquittal. This finding may have been different, if this motion could have proceeded earlier, but the criminal process took the time that it took, to conclude. There are still the arguments before the Court about the impact of the passage of time on this child. Even if the Order of April 8, 2021 was set aside, the Court would still have to deal with those arguments in some fashion. They can clearly be taken into account in a variation analysis.
D. The Applicable Legal Principles Respecting the Best Interests’ Test
[84] Having found a material change in circumstances, the Court then considers the issues before it afresh, without defaulting to the existing arrangement. The Court must consider all factors relevant to the children’s circumstances, in light of the new circumstances. Both parties bear the evidentiary burden of demonstrating where the best interests of the children lie. But the Court should limit itself to whatever variation is justified by the material changes.
[85] At this stage of the analysis, the Court is only to take into account a child’s best interests. It must consider all factors related to the child’s circumstances and give primary consideration to the child’s physical, emotional and psychological safety, security and well-being: see sections 24(1) and (2) of the Children’s Law Reform Act.
[86] The parties and the OCL each made arguments about how the Court should apply the various factors in section 24(3) of the Children’s Law Reform Act. The arguments revolved around the status quo, the child’s views and preferences, the child’s relationships with the parents and a sibling, parental alienation, and the child’s gender identity.
[87] Section 24(3) sets out ten non-exhaustive factors related to a child’s circumstances that the Court may consider, if applicable. No one legislative factor in section 24(3) has greater weight than the other, although there may be more evidence about one factor versus another: see Libbus v. Libbus, (2008), 2008 53970 (ON SC), 62 R.F.L. (6th) 416 (Ont. S.C.J.) ¶88; see also Van de Perre v. Edwards ¶ 10. Additionally, pursuant to section 24(5), the Court is not to consider the past conduct of any person, unless relevant to their decision-making responsibility, parenting time or contact to the child.
[88] I intend to focus my analysis around the specific arguments that the parties and the OCL each made. That said, those arguments ended up engaging most of the factors in section 24(3), and section 24(5).
(1) Findings and Weight to be Ascribed to the Status Quo
[89] The status quo is a relevant factor in the best interests’ analysis under section 24(3)(d). It is a factor that received some attention in submissions in this case. In order to consider and weigh the status quo properly, the Court must first make a finding about what the status quo actually is. The father would have the Court look at the status quo over the lifespan of the children’s lives, whereas the mother and the OCL would have the Court focus more on the situation since the beginning of 2021, and its corresponding impact on the child’s views and preferences.
[90] The father says that he has been the children’s primary parent for most of their lives. The father says that he has been a devoted parent to both children, and he has supported A.C. in a number of ways until his relationship with A.C. was interrupted as a result of the criminal charges.
[91] That said, within this lengthy litigation history, there have been periods of time where both parents went without seeing the children. While some of this history is disputed and other aspects of it are not, as is the case in most high conflict parenting cases, the parents each blame the other for the problems.
[92] It appears that the parents followed the schedule set out in the Final Consent Order of Rowsell J. dated June 13, 2019 for a number of months after they agreed to it. The father then provides details about numerous visits that the mother missed starting in April 2020.
[93] The mother blames the father, saying he made it very difficult for her to have visits with the children from “the beginning”. She says that after the Final Consent Order of Rowsell J. dated June 13, 2019, the father failed to come to exchanges “on too many occasions to count”. She claims that she was always at the exchange location, but the father led the children to believe otherwise, damaging her relationship with them.
[94] The mother admits that she did not see the children for a time beginning in 2020, but she says that was because she fell ill in April of 2020. She says that she later learned (she does not say from whom) that the father was taking the children to the exchange location on alternate weekends, knowing that she was sick and would not be there, to create the impression for the children that the mother was not showing up because she did not want to see them. She goes on to provide her own account and explanations for various missed visits after that, up until the end of 2020. At one point, she was planning to move to London, but then she says that plan changed for various reasons. She equally says the father led the children to believe that she had moved. According to Mr. Anderson’s affidavit sworn July 25, 2022, A.C. was under the impression that his mother lived in London, at the time of his conversation with A.C. on January 13, 2021.
[95] In regards to the father’s contact with A.C. in particular after the criminal charges, the father did have some supervised visits pursuant to Hughes J.’s 2021 Orders starting on February 7, 2021. These lasted for a short time. As set out earlier, the father’s visits stopped towards the end of March, 2021 following the allegations that some of the visits were not supervised.
[96] The father says that he was able to resume some visits after July 22, 2021, after the Society hosted the July 8, 2021 meeting and re-instated the supervisors, but at some point not too long thereafter, he could no longer secure the assistance of the supervisors. He admits that he found it humiliating and embarrassing to have the supervised parenting time, and so he stopped seeing A.C. in about October.
[97] The father says he was able to maintain other forms of contact with A.C. even after he stopped having in person visits. But this did not last either. At some point in early 2022, a subpoena was served to compel A.C. to testify at the father’s criminal trial. It appears that this led to a further disruption in their relationship.
[98] The father says that the mother showed the child the subpoena to undermine his relationship with A.C. The mother says that she explained the situation to A.C. in “age appropriate ways”, and told A.C. that the father had been accused of inappropriately touching a child. Although A.C. had already been interviewed by a detective, the mother says that receiving the subpoena caused A.C. a “significant amount of stress”.
[99] According to the father, after the subpoena issue, any forms of electronic contact that he had been having with A.C. were blocked. He says this happened right around the time that the Society decided to close its file, based on (using the Society’s words in Mr. Anderson’s affidavit), the absence of “child protection concerns in terms of the children’s placement with [the mother] or the access visits that were occurring”.
[100] In Shaw v. Shaw, 2008 ONCJ 130, Pugsley J. had to determine how to weigh the status quo after the mother in that case was charged with an offence relating to some family violence, and the criminal and family justice systems then intervened to place restrictions on her contact with the children. At ¶ 19, Pugsley J. found that the circumstances created by the arrest and the mother’s subsequent release on terms of bail, should not bear on the temporary order to be made nor should that be used to establish a peremptory status quo in the father’s favour. He reached this conclusion particularly where the precipitating event for the mother’s arrest did not involve the care of the children, there was some concern that the father had used the criminal justice system strategically to gain a tactical advantage, and the ex parte order that was under review, expressly set out to avoid any such status quo.
[101] While I appreciate that the nature of the charges in Shaw v. Shaw were different, the mother in this case before me was not involved in the laying of these most recent criminal charges, and the decision in Shaw v. Shaw concerned the review of the ex parte order closer in time to when that initial order had been made (whereas that review has already occurred in this case before me), the end result of Pugsley J.’s treatment of the status quo is still apt here. At ¶ 19, Pugsley J. went on to conclude he should decide the issue about the status quo based upon, “…the evidence of the way the parties themselves arranged their affairs as it affected their children before the events that lead to their final separation”.
[102] In a similar vein, I am not prepared to restrict the analysis about the status quo to the last 18 months or so following the criminal charge. What these parents’ affidavits reveal, is that the period of time after the Final Order of Rowsell J. dated June 13, 2019, including the period of time after the father’s criminal charges, was anything but stable as it pertains to the children’s relationships with one parent or another. Yes, the father’s relationship with A.C. was interrupted during the last 18 months and he went without seeing or communicating with A.C. for a time. But the mother did not see A.C. for a time before that, after the Final Order of Rowsell J. dated June 13, 2019. Although both children were supposed to be in the mother’s care after Hughes J.’s 2021 Orders, I.C. did not remain there and returned to his father. This Court cannot, on this contested record, find that one parent caused any particular problem with the others’ visits. And I need not do so.
[103] It is not contested that this father has been both children’s primary parent for the majority of their lives, other than for the last 18 months or so, and that overall status quo favours the father. It militates in favour of re-instating the Final Order of Rowsell J. dated June 13, 2019.
[104] It may be that in other cases, a more recent status quo created by a temporary Order in the nature of protecting a child would attract greater weight in a subsequent motion such as this, when looking at the impact of that status quo on the particular child. But here, having considered the evidence and submissions as to the impact of Hughes J.’s Orders on A.C., I cannot accede to such an argument. I address that next.
(2) Findings Respecting A.C.’s Views and Preferences
[105] Pursuant to section 24(3)(e) of the Children’s Law Reform Act, the Court must consider the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained. Pursuant to section 64(1) of the Children’s Law Reform Act, the Court is to take the child’s views and preferences into account where possible and to the extent the child is able to express them.
[106] The mother says that A.C. is clear “as to how he sees his life going forward”. She says A.C. has made great advances while in her care, and recognizes the positive changes that have occurred since January 2021.
[107] A significant part of the mother’s expression of the child’s views and preferences is that she says A.C. wants to attend the particular high school in her area, where there is an arts program. She also says that A.C. has a paper route in her neighbourhood, which A.C. wants to maintain.
[108] The mother goes on to say that A.C. was subjected to physical discipline while in the father’s care, that A.C. was grounded or made to feel shame when speaking about the mother, and that the father neglected the child’s health. Now that A.C. has come to live with her, the mother says that A.C. has realized what happened in the past, and that is the cause of a negative relationship with the father.
[109] The father says that he learned, for the first time from A.C. directly, about the high school issue. He learned about it on July 20, 2022, at one of the visits that Ms. Tustin was able to arrange following the July 4, 2022 appearance in court. He says the mother took A.C. on a tour of the high school. He accuses her of having done so to acclimate A.C. to this new high school, without discussion. The father says that he was alarmed by this step, as no decisions had been made, and the governing order respecting decision-making continues to be that of Rowsell J. dated June 13, 2019 in his favour.
[110] The father would have the Court draw the inference that the mother did this deliberately after his acquittal, at a time she knew that the father would be seeking A.C.’s return to his care. Although this is not in evidence, counsel for the mother says that the mother did not deliberately take this step, and rather the high school tour was a normal event in the life of an elementary school student.
[111] In regards to the other allegations about discipline and health, the father denies that these things occurred. He expresses his concern that the child made a “sudden and drastic 180 turn in their perception of thoughts/feelings towards [him] without any signs or specific reasons offered”.
[112] The OCL submits that A.C. wants to remain with the mother, and to have alternating weekend visits and perhaps a mid-week visit with the father. A.C.’s alternate position as expressed by the OCL, is to have a week about schedule, but while attending the high school near the mother’s home and maintaining the paper route. I note that even these positions expressed by the OCL already represent a departure from the mother’s initial position, that A.C. did not want to see the father at all.
[113] The OCL says A.C. is a 13 year-old young person, who has given mature reasons for wanting to remain with the mother. Focusing on the high school, counsel also stated that A.C. told her the high school has a good reputation, known for the arts. She confirmed A.C.’s desire to maintain the paper route, because A.C. is saving money to purchase a piece of equipment to train as a voice actor. She explained that A.C. enjoyed spending time with friends in the mother’s neighbourhood. Finally, counsel explained that A.C. said that they love both parents (also a departure from what the mother had maintained the position was), but that they feel “a little more comfortable and gets along better and feels more comfortable with [the] mother”.
[114] There is case law that says that while the views and preferences of a child are a factor to consider, this is not tantamount to the right to decide. The OCL argues that the law in this respect may be better characterized differently. The OCL says that as a child ages and matures, the views and preferences become more and more dispositive. The OCL also says that it would be contrary to law, to force this child into a parenting arrangement that is contrary to their wishes. See A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30; see De Melo v. De Melo, 2015 ONCA 598; see Ontario (Children’s Lawyer) v Ontario (Information and Privacy Commissioner), 2018 ONCA 559; and see also SK v DG, 2022 ABQB 425.
[115] But as alluded to earlier, I cannot accede to this argument, on this record. Even if I accept the above statement of law, the child’s views and preferences need to be probed into further. I am not persuaded that the views and preferences are that strong, that they are “significant and long lasting”, or that this Court would be “forcing” A.C. to return to the father against their wishes, because:
(a) It is not necessarily known, why or how the child came to know about the high school, or that it has a good reputation with an arts program. Counsel for the child only relied on what the mother had said about this in her affidavit to make this submission;
(b) It is not known, whether as part of the choice of high school, if A.C. was presented with other options for high school, whether they had been taken to see any other schools, such as the one in the father’s catchment area, or if there was a discussion about any arts program there;
(c) There continues to be an apparent factual dispute about whether the child went on the high school tour in the normal course, or whether the mother was involved in orchestrating it at a suspect time, potentially undermining the independence of the wishes;
(d) The statement about A.C. having friends in the mother’s neighborhood also needs to be further fleshed out, particularly since A.C. also talked to counsel about having fun with a friend in the father’s neighbourhood;
(e) It is my understanding that these parents do not live so far apart from each other, such that A.C. will be unable to maintain friendships in both locations;
(f) It is also not clear that the paper route cannot be accommodated in both locations either, whether that was canvassed with the child, and how that would have impacted the views. Although none of this was in evidence, towards the end of submissions, counsel advised me that the paper route is not an early morning job, but it is instead one that is delivered after school, two days per week. I have no evidence before me that reveals that this cannot be accommodated in the father’s household. Quite to the contrary, when I made the Order for the week about for the remainder of the summer, the father specifically agreed to accommodate the paper route on his weeks. This is something that the father should discuss with A.C. going forward, and if possible, maintain it.
(3) Findings Respecting Parental Alienation and the Child’s Relationships with the Father and I.C.
[116] The child’s relationships with the parents and I.C. are relevant considerations in the analysis under section 24(3)(b). The father’s arguments about parental alienation also relate to the child’s relationship with him. They engage a number of factors in section 24(3) of the Children’s Law Reform Act, particularly sections 24(3)(a), (b), (c), (e), (h) and (i) of the Children’s Law Reform Act. They also engage the past conduct section 24(5).
[117] The father would have the Court find that the mother engaged in parental alienation and that influenced A.C.’s views and preferences. Additionally or alternatively, he would have the Court find that the child is at risk of parental alienation, if the child remains in the mother’s care.
[118] The mother’s counsel argued that the father damaged the relationship by stopping the visits in 2021. He also argued that he damaged the relationship by forcing the child to lie about the supervision in 2021, after Hughes J.’s Orders. But the mother herself goes much further than that in her affidavits, and in her email to the father of March 4, 2022, discussed below.
[119] I accept that the Court may make a finding of parental alienation without expert evidence: see for example A.M. v. C.H., 2018 ONSC 6472 ¶ 107 (aff’d by 2019 ONCA 764 ¶ 31-35). But I am also mindful that this is an interim motion. I am reluctant to make a finding about this one way or the other at this stage of the case, except perhaps in one respect.
[120] Both parents put their different perspectives before the Court about who was at fault for various disruptions to the parent-children relationships. These issues will have to be addressed in due course, when the Motion to Change is heard on its merits on a final basis. However, I cannot ignore that when Hughes J. made the January and April, 2021 orders, she was dealing with a narrow issue, being the risk to the children flowing from the fact that the father had been charged. Her orders did not address a different potential risk to the children, from the mother’s past conduct.
[121] While counsel for the mother says she has learned from her past conduct, I do not intend to ignore that this Court has in the past made very adverse findings against the mother. The parties themselves agreed to numerous restrictions on the mother’s parenting time. And in that context, I am particularly concerned about two pieces of related evidence that has now been put before me, that cause me to wonder just how much the mother has learned.
[122] The first is an email that the mother recently saw fit to send to the father. On March 1, 2022, the father’s lawyer sent the mother’s lawyer an email inquiring about how A.C. was doing following the delivery of the subpoena. On March 4, 2022, the mother sent an email to the father directly, saying that A.C. had been lied to “his whole life” by the father. She wrote “now that he’s had a chance to really get to know me, he’s happy knowing me really and confused by your actions”. She went on to tell the father that his “lies and manipulation [have] backfired and the truth is out”. The email ends with “A.C. has made up his own mind”.
[123] The second related piece of evidence is what transpired respecting the father’s relationship with A.C. after the end of the criminal case. The mother took the position A.C. did not want to see him. Left to their own devices, even with the assistance of counsel and a warning from this Court, visits did not happen. The mother’s counsel now says that is because the father wanted “all or nothing” as an explanation for why visits did not occur.
[124] When the matter initially came before me on June 20, 2022, I warned the parties to sort something out or the Court would impose something on the first return date of July 4, 2022. Nothing had been sorted out by July 4, 2022. But by that date, the Court now had the assistance of the OCL. With Ms. Tustin’s assistance after that, the father’s relationship with A.C. immediately resumed and expanded.
[125] In stark contrast to the mother’s statements about the great damage that the father did to his own relationship with A.C., I note that once the OCL got involved, the evidence is that the father and A.C. are now sharing many text conversations, they have video chats together, and they spend wonderful time together. The father’s affidavit of July 25, 2022 reveals that between the appearance on July 4, 2022 and the return of the motion on July 28, 2022, the father had many encounters with A.C., as did A.C. and I.C. have nice times together.
[126] This is not contested evidence at all. In fact, in her affidavit of July 25, 2022, the mother now confirms that both the OCL and A.C. reported that the visits have gone well, and that A.C. is enjoying spending time with the father and I.C. The OCL submitted to the Court during argument that the visits went “very well”, that A.C. was “very receptive to them” and had a “really good time on the visits”.
[127] The week about schedule that the Court ordered on July 28, 2022 for the balance of the summer should have also given father and A.C. and opportunity to continue to spend time together and to heal. And finally, the siblings are being reunited over the summer, and that will continue in the fall, as the Final Order of Rowsell J. dated June 13, 2019 is being re-instated. I note that reuniting the siblings is consistent with the views A.C. expressed to Mr. Anderson, on January 13, 2021.
[128] So while I am not prepared to find parental alienation at this point, and I cannot say that A.C. is at risk of it in the mother’s care, I am equally not prepared to say there is no risk. This case still involves very real issues about whether the various restrictions that the parties previously agreed to, should be put to the wayside. That would be the effect if this Court ruled in the mother’s favour. These issues have not yet been addressed, and they need to be, if this Motion to Change is to continue.
(4) The Relevance of the Child’s Gender Identity and the Need for Counselling
[129] Both parents have raised the fact that the child has expressed issues about their gender identity. Both parents have raised the issue of counselling. So has the OCL. This engages sections 24(3)(a), (b), (e), (g) and (h) of the Children’s Law Reform Act.
[130] The father says that in the latter part of 2021, or the early part of 2022, A.C. communicated to him that they wanted to be referred to by a different name, and that they would now be using the pronouns they/them. The father says that there was never a sign or any inclination that the child wanted to be identified as anything other than their gender, until A.C. went to live with the mother. Nevertheless, the father says he agreed to communicate with A.C. in the requested fashion.
[131] The father says he also reached out to the child’s former therapist for guidance, and he accessed a therapist of his own. He says he sometimes struggles to use the correct pronouns (as do the other professionals who are involved in this case, according to him), but he is doing his best. He says he loves his child regardless of gender or identity, and he always will.
[132] On the other hand, the mother says that the child was in counselling for a time, but the counselling was to deal with the child’s relationship with the father, not the child’s gender identity. The mother says that once the visits stopped, the child felt the counselling was unnecessary. Yet once again, once the OCL was involved, I was informed that A.C. now wants to participate in counselling with the father.
[133] According to the mother, A.C. is on a wait list for a regular counsellor, and has access to interim supports as needed until the regular counsellor is assigned. But at the time the motion was argued, there was no counselling in place for this child, and no evidence was adduced about whether A.C. accessed the interim supports.
[134] Based on this evidence, I find the father is the parent who has taken steps to deal with issues respecting his own parenting, the child’s mental health, and the gender identity issues that the child has raised. There is some evidence about a wait list and interim supports that the mother says the child can access, but she said this while simultaneously saying the child did not need counselling, once the visits stopped. There is no evidence that the mother has taken steps to access counselling for the child relating to the gender identity issues, or any counselling for herself on any of these issues.
[135] Ensuring this child has therapeutic support is important. Frankly, these parents both need counselling to learn how to better interact going forward, let alone to learn how to parent their child given the expressed gender identity issues.
[136] I already made an order that the parents are to get counselling in place for this child at the conclusion of submissions on July 28, 2022, and I noted in the Endorsement the OCL’s helpful offer to assist to get something set up. It is the Court’s expectation of the parents, that with Ms. Tustin’s assistance, counselling will now be put in place.
E. Summary and Conclusions
[137] In summary, the Court is re-instating the Final Order of Rowsell J. dated June 13, 2019 because:
(a) To vary the Final Order of Rowsell J. dated June 13, 2019 in the first place, Hughes J. had to have been satisfied that there was both a material change in circumstances, and on the basis that the more stringent test was applied, that there were compelling reasons to intervene. Her January and April, 2021 Orders were clearly premised on a risk to the children as a result of the criminal charges;
(b) I.C. has already returned to live with the father. This happened before the criminal trial;
(c) The father was acquitted on March 30, 2022. This is not a case where there will be a civil trial about the same risk, notwithstanding the acquittal. No one is arguing that what is alleged to have occurred, did in fact occur on the balance of probabilities standard in this case;
(d) The Society is not advancing any protection concerns respecting the father;
(e) I do not find that the child’s views and preferences are as strong, or are significant and long lasting, as submitted. There is a factual dispute about whether the views have been influenced. I cannot attach the weight to those wishes, as argued for by the mother and the OCL, at this time;
(f) Although the risk to the children that formed the basis of Hughes J.’s April 8, 2021 Order has been addressed, whether the various restrictions on the mother’s parenting time in the Final Order of June 13, 2019 are no longer required, remains a real issue in this case;
(g) The father has sourced counselling for himself, and the Court has now ordered counselling for the child;
(h) The Court’s overall analysis under section 24 of the Children’s Law Reform Act favours re-instating the Final Order of Rowsell J. dated June 13, 2019;
(i) If the compelling circumstances test applies, then I am relying on these same conclusions in their totality, to find sufficiently compelling reasons to vary the temporary Order of Hughes J. dated April 8, 2021 at this time;
(j) If a more relaxed test applies, then the Order would of course still be varied too, for the reasons already expressed; and
(k) Finally, there is the other variation issue to deal with the child’s high school. Based on the findings and analysis set out above, I would not have found a basis to vary the Final Order of Rowsell J. dated June 13, 2019 on a temporary basis respecting this.
PART IV: ORDER
[138] I make the following orders:
(a) The temporary Order of Hughes J. dated April 8, 2021 is varied and the Final Order of Rowsell J. dated June 13, 2019 is re-instated;
(b) For clarity, this means that the father shall make decisions about A.C.’s high school and shall have the full authority to enroll A.C. where he sees fit. That said, I recommend that the father have normal parental discussions with A.C. about this and that they strive to make the decision together. That might include a tour of the other school in his area, and ensuring full options and information are available for consideration. But in saying this, I recognize there may be geographic/catchment area or other restrictions that will limit the scope of this discussion;
(c) The Court has already addressed the issue of counselling in the Endorsement of July 28, 2022 and so no further Orders are required at this time;
(d) A Settlement Conference has already been scheduled for this matter for January 25, 2023 @ 10:30 AM. The purpose should be to address the outstanding issues raising in the Motion to Change and the Response to Motion to Change on a final basis. The parties are to file briefs with analysis of the outstanding issues, and Offers to Settle; and
(e) I urge the parties to settle costs. If they cannot, then they are to exchange Bills of Costs and any case law, and they are to file that along with copies of any Offers to Settle this motion for the next appearance on January 25, 2023. I will hear brief oral submissions respecting costs at that time, and I will render a further ruling.
[139] I wish to thank counsel for the parents for their organized material and their submissions. I thank counsel for the father for his factum and the background summary of the prior proceedings.
[140] I wish to thank Ms. Manji and Mr. Anderson for providing the Court with the evidence that it needed from the Society, to which it did not otherwise have access.
[141] I wish to particularly thank Ms. Tustin for her submissions, but also for her assistance to her client, for her work in getting visits going again that has enabled A.C. and the father to resume their relationships and the sibling relationship, and for her offer to assist respecting arranging counselling. I was impressed by Ms. Tustin’s ability to accomplish these steps, on very tight timeframes.
Justice Alex Finlayson
Released: August 15, 2022
COURT FILE NO.: FC-09-1135-05
DATE: 20220815
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J.C.
Applicant Father
– and –
C.N.
Respondent Mother
REASONS FOR DECISION
Justice Alex Finlayson
Released: August 15, 2022
[^1]: There is some evidence in the current motion material before me that the mother either moved, or was contemplating moving to London, Ontario with her partner at the time. While relevant to the historical conflict between these parents and the disputed evidence about their compliance with past orders, relocation per se is no longer an in issue in this case, to my knowledge.
[^2]: Unfortunately, the OCL declined to accept the Court’s first referral.
[^3]: Mr. Anderson’s affidavit of July 25, 2022 (see below) states that the child did in fact disclose having some unsupervised visits with the father. While the father continues to deny this, Hughes J. already made a finding that this occurred in her Endorsement of April 8, 2021. According to Mr. Anderson’s affidavit, there is no evidence that this occurred again, after Hughes J.’s admonition of the father.
[^4]: Unfortunately, the OCL did not change its position after the Court’s second request.
[^5]: The affidavit contains the information in the summary letter provided for the July 4, 2022 appearance, but in sworn form.