COURT FILE NO.: FS-17-90706-00
DATE: December 6, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
E.M.B.
Jared Teitel, For the Applicant
Applicant
- and -
M.F.B.
Michael Freeman for the Respondent
Respondent
HEARD: November 3, 2022
ENDORSEMENT
Mandhane J.
[1] I conducted a trial and made a final determination of all issues between the parties in 2021: E.M.B. v. M.F.B., 2021 ONSC 4264.
[2] About a year later, the Father was successful on his motion for a finding of contempt: E.M.B. v. M.F.B., 2022 ONSC 4838. The penalty stage of the contempt motion is currently scheduled for April 3, 2023. I remain seized of this matter.
[3] Prior to hearing the second stage of the contempt hearing, I granted the Father leave to bring an interim parenting motion to amend my Interim Order of August 4, 2022, to address ongoing issues with virtual parenting time in advance of his upcoming extended holiday time.
[4] I provided a strict timeline for delivery of materials and directed the parties to attempt to resolve these issues in advance of the motion. They were not able to do so.
[5] The Father uploaded his materials to Caselines, however the Mother did not. The parties are reminded to double-check to ensure their materials are properly accessible to the Court.
Extended Holiday Time
[6] Pursuant to my Final Trial Order of June 11, 2021, the Child was to have parenting time with the Father from December 23-27, 2022.
[7] However, pursuant to my Interim Order of August 4, 2022, I ordered that the Father have makeup parenting time with the Child from December 27, 2022, to January 2, 2023: E.M.B. v. M.F.B., 2022 ONSC 4838.
[8] As a result, Child will be with the Father for 9 consecutive overnights over the upcoming holiday season (“extended holiday time”).
My Order regarding Facetime calls during extended holiday time
[9] During the school year, my Final Order required the Father to facilitate Facetimes calls between the Mother and Child only as requested by the Child.
[10] During summer parenting time, which involved the Father having nine consecutive overnights each month, I ordered that the Mother be allowed to FaceTime with the Child once daily at 7 p.m.
[11] My Final Order did not contemplate the Father facilitating Facetime calls during his holiday parenting time because, at that point, it was only expected to involve four overnights.
[12] However, in my Interim Order of August 4, 2022, I ordered that, “Consistent with my final order, the Father shall facilitate Facetime calls with the Mother on a daily basis at 7:00 p.m. during his summer and make up parenting time. These calls shall be limited to a maximum of 15 minutes per day.”
[13] It is this portion of the Interim Order that the Father now seeks to vary.
The Relief Sought
[14] The Father asks that I very my Interim Order of August 4, 2020, such that he not be required to facilitate Facetime calls between the Mother and the Child during the Father’s extended holiday parenting time. 2023. In the alternative, he asks that I only order him to facilitate calls on Christmas day and on December 29, and that they be limited to 10 minutes.
[15] The Mother opposes the Father’s order. She asks that I order:
(a) Daily Facetime calls for 15 minutes (consistent with the August 4, 2022, Order);
(b) A visit with the Child on Christmas Day;
(c) A Facetime visit on Saturday of future overnight weekends, commencing on Saturday, January 14;
(d) An Order confirming that the Child will be in my care during the weekend of January 6 to 8, 2023; and
(e) An Order permitting the Child to call her not more than once per day if she wishes to do so.
Has there been a material change in circumstances to justify a review of my Final Order and Interim Order of August 4, 2022?
[16] As a preliminary issues, I asked the parties to articulate my jurisdiction to vary a Final Order that has already been varied by way of my Interim Order of August 4, 2022.
[17] The Father says that I may vary a Final Order on an interim motion where there are “compelling circumstances.
[18] In A.B. v. I.S.G., 2021 ONSC 7001 at para. 15, Justice Pazaratz noted that a request to vary a final order requires caution, noting that there are conflicting cases on whether the party seeking to the relief must establish a material change in circumstance, or whether establishing “compelling circumstances” is sufficient: A.B., at para. 15.
[19] The Mother says that I can change my Final and Interim Orders consistent with the overriding principle of the best interest of the child: A.B, at para. 15, citing: Chyher v. Al Jaboury 2021 ONSC 4358(SCJ).
[20] In a high-conflict case like this, where there have already been countless interim parenting motions spanning many years, I find that the Father must establish a material change in circumstances to access the relief he seeks.
[21] That all being said, I accept his submission that my finding that the Mother was in contempt of my Final Order qualifies as such a change.
The parties’ positions
[22] The Father says that daily Facetime calls are not the Child’s best interests.
[23] He says that the Mother has not reformed her conduct on Facetime since the trial. I had already identified issues with the Facetime calls in my Trial Decision, noting that the Mother’s calls during the Father’s parenting time were distressing to the Child and emotionally manipulative. They caused the Child to form the impression that the Mother was concerned about her safety while in the Father’s care: Final Decision, para. 90.
[24] He says that, during his summer parenting time, the Mother still used Facetime to repeatedly inquire into the Child’s wellbeing. He said that the calls were disruptive to the Child who understandably picked up on her Mother’s anxiety. The Father says that he would often have to console the Child after the Facetime calls.
[25] The Father says the Mother used the summer Facetime calls to glean information with which to engage the police to conduct three wellness checks on the Child, or to threaten the Father with the same. These police encounters were stressful and traumatic for the Child, and one of them occurred at the paternal grandparent’s home.
[26] The Father says that the extended holiday parenting time is an ideal opportunity for the Child to get used to longer periods away from the Mother, consistent with her age. He says that ordering daily Facetime calls is a recipe for disaster.
[27] The Mother says that my contempt finding was a “wake-up” call and that she has since made various attempts to purge her contempt. The Mother says that the Father is focused on the past and not on the present or future.
[28] She notes that she has not called the police since the summer, and that she has never called CAS. While this not disputed by the Father, he says that his parenting time since the summer has not involved any extended periods of separation. He is still worried that the Mother will “ruin his Christmas with the Child” by requesting a police wellness check.
[29] Finally, the Mother says that she is more confident that she can work collaboratively with the Father and points to various recent examples of the parents arriving at compromises in areas that would usually lead to conflict, i.e., the Child’s illness, conflicting special events, regular check-ins, etc.
[30] The Father does not agree entirely with the Mother’s submission that they are parenting more collaboratively. He says that, since the summer, the Mother has continued to threaten him with police involvement and tried to exert control over his parenting time through the Facetime calls. While he refers to her text messages as the source of these threats, none were attached to his affidavit.
[31] Finally, the Mother says that the Father has not facilitated any Facetime visits between her and the Child during his regular parenting time. The Father says that the Child has not asked for such calls, while the Mother says that she has. It is impossible to determine on the record before me who is telling the truth in this regard.
Best interests
[32] The Father says that Facetime calls during the extended holiday time are not in the Child’s best interests because there is too much risk that she will be exposed to the Mother’s unresolved anxiety issues during the calls, and that such calls could easily result in police involvement.
[33] The Mother says the calls and the other relief she seeks are in the Child’s best interests given the Child’s ongoing separation anxiety and her young age.
[34] In my trial decision, to ground the terms of my Final Order, I outlined in detail the applicable law (paras. 52-71), the Child’s current circumstances (para. 72-136), and the Child’s best interests (para. 137-172).
[35] Here, the Father has not convinced me that changing the terms of my Interim Order of August 4, 2022, is in the Child’s best interests. I accept the Mother’s evidence that she has not involved the police in the Father’s parenting time since August 2022, and that the Facetime calls remain in the Child’s best interests given her strong attachment to the Mother, her young age, and her separation anxiety.
[36] I accept that the Mother’s evidence that she is attempting to re-establish her trust with the court, and fully expect that she will comply with the terms of the Final Order that place strict time limits on such calls.
[37] Finally, I refuse however to grant the relief sought by the Mother. The extended holiday parenting time was granted after the Mother breached my order granting the Father summer parenting time. I am not prepared to revisit my order in this regard. I am also not prepared to grant her make-up parenting time on account of the extended holiday time. Finally, I am not prepared to order regular Facetime calls during the Father’s weekend parenting time. I continue to be of the view that the Child can certainly benefit from some uninterrupted time with her Father, especially when the duration of the visit is short.
Costs
[38] Costs for this motion are reserved to the penalty stage of the contempt hearing.
Mandhane J.
Released: December 6, 2022
COURT FILE NO.: FS-17-90706-00
DATE: December 6, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
E.M.B
Applicant
and –
M.F.B.
Respondent
ENDORSEMENT
MANDHANE J.
Released: December 6, 2022