COURT FILE NO.: FS79/15-01 DATE: 20221208
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Tomoz Mestanovski
Jessica Bonnema, for the Applicant
Applicant
- and -
Tamara Lee Mestanovski
Duty Counsel – K. Veenstra, for the Respondent
Respondent
HEARD: October 7, 2022
HASSAN J.
[1] The Applicant, Tomoz Mestanovski, seeks an Order by way of Summary Judgment, dismissing the Respondent's Motion to Change, dated June 3, 2020, and requiring that the Respondent seek leave of the Court prior to commencing any further Motion to Change proceedings.
[2] The Respondent commenced a Motion to Change in June 2020, seeking to change the final Order of Templeton J. dated May 14, 2019. The May 14, 2019, Order was made on the consent of the parties and provided that the Applicant would have sole custody (now Decision-Making Responsibility) for the only child of the marriage, C.T.M., born [...], 2009. The Respondent would have access (now Parenting Time) with the child on alternate weekends from Friday to Monday, and for ½ of holidays, including Christmas and March Break and 2 weeks during the summer school break. The Respondent was to pay child support to the Applicant, in the amount of $210.00 per month.
[3] In her Motion to Change the Respondent seeks joint Decision-Making Responsibility and shared Parenting Time on a bi-weekly basis.
[4] The Motion to Change proceeding is presently on the February 2023 Trial Sitting. It has been on 4 previous Trial Sittings.
[5] The Applicant was granted leave to bring her Motion for Summary Judgment, by Order of April 1, 2022. The Motion was commenced on September 7, 2022. The Respondent was also granted leave to bring a Motion for an interim expansion of her parenting time. A Motion was not commenced by the Respondent.
BACKGROUND
[6] The parties were married for 7 years, between May 2008 and April 2015. The Respondent's Motion to Change indicates that the parties are divorced, although the Divorce Order is not referenced. The May 2019 Order provided that the Divorce between the parties would proceed on an uncontested basis. I assume, for the purposes of this Motion, that the Divorce was finalized and that this Motion, then, is pursuant to the Divorce Act, RSC 1985, c. 3 (2nd Supp).
[7] As indicated, the parties have one child, C.M.T., who will be 13 years of age this month. When C.M.T. was 8 years of age, he was diagnosed with Autism Spectrum Disorder and a mild intellectual delay. According to an Assessment of January 2017, from Dr. D. Templeman, attached to the Applicant's Affidavit, C.M.T. presents with deficits in social communication and interaction and significant restricted and repetitive patterns of behaviors. The Applicant deposes that C.M.T. is in a special program at his school, that accommodates his needs. He deposes that any changes to his schedule cause him to become agitated and upset.
[8] During the marriage of the parties, the Respondent sought help for mental health issues. Attached to the Applicant's Affidavit is a Report of the Respondent's family doctor, Dr. D. Dougherty, prepared for the purposes of allowing the Respondent to seek Disability Benefits. The Report indicates that the Respondent left her employment in 2013, due to ongoing symptoms. She was then diagnosed with Major Depressive Disorder, Panic Disorder, Obsessive-Compulsive Disorder and Complex Trauma. In 2015 the Respondent began treatment with Dr. G. Guaiana, a specialist in psychiatry at the St. Thomas Elgin Hospital.
[9] The Respondent's mental health struggles impacted her ability to safely parent the party's child. The Applicant deposes that in February 2015, prior to their separation, the Respondent indicated that she experienced suicidal ideations, while in a vehicle with the child.
[10] As a result of the Respondent's mental health issues, after the parties separated the Applicant was granted interim Decision-Making Responsibility for the child, C.M.T., and the Respondent's Parenting Time was restricted to supervised time.
[11] In consultation with child protection services and the Respondent's psychiatrist, the Respondent's parenting time was gradually expanded to unsupervised parenting time, in 2016.
[12] On August 23, 2022, the Respondent filed an Affidavit, attaching 2 Reports from Dr. Guaiana, one from an appointment on July 25, 2016, and one from October 19, 2016.
[13] For the meeting of July 25, 2016, Dr. Guaiana indicates that the Respondent did not report any major mental health problems or symptoms. She indicated she was volunteering at the Boys and Girls Club. The ongoing legal issues with her husband, were identified as her main stressor.
[14] For the follow-up meeting of October 19, 2016, Dr. Guaiana reports that, by her account and his observations, the Respondent was doing quite well and was not reporting any symptoms or mental health issues. She reported her major stress, again, to be her ongoing legal issues relating to her son and that her goal was to go to court and gain full custody of her son. Dr. Guaiana diagnosed that the Respondent's Major Depressive Disorder and Posttraumatic Stress Disorder were in remission and diagnosed ongoing Borderline Personality Traits. The Respondent was discharged back to the care of her family doctor.
[15] A request was made in the previous proceeding for the intervention of the Office of the Children's Lawyer. An Assessment Report was completed and filed with the Court, in June 2018. It is attached to the Applicant's Affidavit. The Assessor recommended that the Applicant have sole Decision-Making Responsibility and that the Respondent have Parenting Time similar to what the parties eventually agreed to in the final Order of May 14, 2019.
[16] The Assessor did not appear as concerned about the Respondent's mental health, as she was about the level of conflict between the parties, the Respondent's continued allegations against the Applicant, which were found to be unverified, and the Respondent's involvement of the child, C.M.T., in the conflict. The Assessor also noted the stability and consistency the Applicant had provided for C.M.T., since separation, which she identified as important, given C.M.T.'s challenges.
[17] Regarding allegations against the Applicant, starting in 2016 the Respondent began making multiple complaints and allegations to the police and to the child protection agency. The allegations were serious, including multiple allegations of physical and sexual abuse against the Respondent and the child, C.M.T.. All complaints were found to be unverified by the child protection agency and the multiple criminal charges were dismissed part-way through the Respondent's testimony. The allegations significantly impacted both C.M.T., who was exposed to multiple, intrusive interviews, and the Applicant, whose career was put at risk.
[18] As a result of the level of animosity, and the Applicant's fear of further allegations, the Applicant arranged to have a neighbour facilitate parenting exchanges.
[19] This was the state of affairs when the final Order of May 2019 was negotiated.
MOTION TO CHANGE AND MOTION FOR SUMMARY JUDGMENT
[20] The Respondent commenced her Motion to Change in June 2020, just over a year after the final consent Order. The Motion seeks shared Decision-Making and shared weekly Parenting Time. The Respondent appears to indicate the following grounds for the request to change the Order:
"Conflict between the parents";
That the Respondent "is not getting needs met with current access orders";
That the Respondent is "no longer struggling with her mental health diagnosis and no longer requires [the Applicant] to have sole custody".
[21] As indicated, the Applicant sought leave to commence a Motion for Summary Judgment, which was granted, and the Motion was brought in September 2022. The Applicant claims that the Respondent has not raised or provided evidence of any "material change in circumstances", necessary for the Court to have jurisdiction to change a final Order.
[22] In response to the Applicant's Motion for Summary Judgment, the Respondent filed an Affidavit sworn October 5, 2022. The Affidavit attached a Medical Report of Dr. Dougherty, for an appointment on September 21, 2022. Dr. Dougherty's report mirrors the state of affairs detailed by Dr. Guaiana, in October 2016.
[23] Dr. Dougherty reports that, by her account, the Respondent was doing well and there did not appear to be any major concerns in terms of her mental health. He reported that the Respondent indicated she was working as a night nanny, 4 nights a week, since August 2022. She reported her major stress to be her ongoing legal issues relating to her son. He reports the Respondent last saw her psychiatrist, Dr. Guaiana, in October 2016. Dr. Dougherty diagnosed that the Respondent's Major Depressive Disorder and Posttraumatic Stress Disorder were in remission and diagnosed ongoing Borderline Personality Traits.
[24] This Affidavit is the only "evidence" offered by the Respondent, in response to the Applicant's Motion for Summary Judgment. As detailed above, the Respondent also filed an Affidavit on August 23, 2022, attaching 2 reports from her psychiatrist. I have also considered that Affidavit for the purposes of this Motion.
[25] While the Respondent is self-represented, she was represented by Duty Counsel, when the Motion was argued. Duty Counsel was familiar with the matter. When it was pointed out to the Respondent, that she had no "admissible evidence" before the Court, in response to the Summary Judgment Motion, she indicated, through Duty Counsel, that she wanted to proceed with the Motion.
[26] The Applicant took the position that the medical reports provided by the Respondent were the same as the Reports offered by the Respondent prior to the final Order and were considered in the making of the final Order. He claims that there has been no "material change" in the Respondent's mental health status, since the final Order, that would justify a change in the Order. He argues that the Respondent has not provided any evidence of a "material change in circumstances", necessary to raise a "triable issue", on the Applicant's Motion for Summary Judgment.
[27] The Applicant also argued that, in Summary Judgment Motions relating to parenting Orders, the court must also ensure that the best interests of the child are adequately addressed on the available evidence. He argues that if there is no evidence of a "material change", which would impact the interests of the child, then the best interests would be in an early, less costly resolution, than a Trial.
[28] The Respondent argued that her mental health issues drove the settlement terms between the parties, in 2019, and that the further improvements in her mental health, constitute a "material change in circumstances". She points to services she has accessed and parenting programs she has taken, as further evidence of the continued stabilization of her mental health. The Respondent argued that she was now in a better position to expand her parenting time with C.M.T. and to engage in a more meaningful way in her parenting, and that it would be in C.M.T.'s best interests to have meaningful engagement with both parents, which he did not have with the present Order. The Respondent also argued that her efforts to work on her mental health challenges were not recognized nor appreciated, nor was the benefit to the child, C.M.T., of her improved mental health status.
LEGAL FRAMEWORK
Motion to Change
[29] Section 17 (1) of the Divorce Act provides that a court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively, a parenting order or any provision of one, on application by either or both former spouses.
[30] Subsection (5) of Section 17 provides that:
“Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9).”
[31] In relation to parenting Orders, the need for a "change in circumstances", was discussed by Audet J. in Lopez Ramirez. v. Castro Estupinan, 2021 ONSC 5122, as follows:
32 As stated above, before a court can vary a previous final order made pursuant to the Act, the court must find that there has been a change in the circumstances of the child since the making of the initial order. The recent amendments to the Act did not affect the long-standing legal principles established in relation to the need for a material change to have occurred before a party can seek to change a final parenting order (although the terminology in relation to parenting orders has changed). Those principles were recently reviewed and summarized by Justice Pazaratz in F.K. v. A.K., 2020 ONSC 3726 as follows:
48 To determine a request to change custody, access or parenting order, the court must embark upon a two-stage inquiry. Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.).
49 The first step: There must be a material change in circumstances since the last order was made.
a. There must be a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs.
b. The change must materially affect the child.
c. It must be a change which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. The change must be substantial, continuing and “if known at the time, would likely have resulted in a different order.” Droit de la famille - 091889, 2011 SCC 64(S.C.C.).
d. The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order.
e. If there is no material change in circumstances, the inquiry ends. The court would be without jurisdiction to vary the order. Litman v. Sherman, 2008 ONCA 485 (Ont. C.A.).
f. If there is a material change, the court must move to the second stage and consider the best interests of the child and whether to vary the original order.
MOTION FOR SUMMARY JUDGMENT
[32] Rule 16 of the Family Law Rules, O. Reg. 114/99, provides that:
- (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.
[33] Subsections (4) and (4.1) of Rule 16 provide that:
(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.
(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.
[34] Subsection (6) of Rule 16 provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
[35] Subsection (6.1) sets out the approach to a Summary Judgment Motion, as follows:
(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[36] In Shalaby v. Nafei, 2022 89315, Price J. discussed the test for Summary Judgment, in the context of an Application to set aside a Separation Agreement between the parties. He discussed the applicability of the general approach set out by the Supreme Court, in Hryniak, to family law matters, as follows:
[36] Based on the guidelines the Supreme Court set out in Hryniak, 2014 SCC 7, [2014] 1 S.C.R. 87 [“Hryniak”], and Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, [2014] 1 S.C.R. 126, I must first determine, based on the evidence before me, and without using the fact-finding powers under Rule 16(6.1), whether there is a genuine issue requiring trial, whether I can fairly and justly adjudicate the dispute, and whether the motion is a timely, affordable, and proportionate procedure. If there is no genuine issue requiring a trial, I must grant summary judgment: Hryniak, at para. 66.
[37] The party moving for summary judgment has the onus of establishing that there is no genuine issue of material fact requiring a trial. Once that onus is met, the burden shifts to the responding party, opposing summary judgment, to demonstrate that the claim has a “real chance of success”: Hamilton Kilty Hockey Club Inc. v. Ontario (Attorney General) (2003), 2003 24429 (ON CA), 64 O.R. (3d) 328 (Ont. C.A.), at para. 20. A self-serving affidavit is not sufficient to create a triable issue in the absence of detailed facts and supporting evidence.
[38] The Supreme Court in Hryniak held that the rules governing summary judgment are to be interpreted broadly, favouring proportionality and fair access to the affordable, timely, and just adjudication of claims. It reinterpreted Rule 20 of the Rules of Civil Procedure, taking into account the need for the courts to preserve the public’s access to justice. The Court’s comments apply equally to Rule 16 of the Family Law Rules, O. Reg. 114/99 which sets out a similar framework for summary judgment in family law proceedings.
[37] The Court of Appeal, in Ramdial v. Davis, 2015 ONCA 726, discussed the onus on the party responding to a Summary Judgment Motion, and the need to tender specific facts which establish a "triable issue", in the proceeding. The Court indicated:
[25] As the party bringing the motion for summary judgment, the respondent had the burden of showing no genuine issue requiring a trial. As the responding party, the appellant had to comply with the dictates of rule 16(4.1), which required that she tender evidence of specific facts showing a genuine issue requiring a trial. The responding party may not rest solely on mere allegations or denials, but must set out, in an affidavit or other evidence, “specific facts showing that there is a genuine issue requiring a trial.”
[26] Rule 16 (4.1) reads as follows:
In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.
[27] Each party had to “put its best foot forward” with respect to the existence or non-existence of material issues to be tried: Papaschase Indian Band No. 136 v. Canada (A.G.), 2008 SCC 14, [2008] 1 S.C.R. 372, at para 11, citing Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 7979 (ON SC), 28 O.R. (3d) 423 (Gen. Div.), at p. 434; Goudie v. Ottawa (City), 2003 SCC 14, [2003] 1 S.C.R. 141, at para. 32.
[28] Further, in Corchis v. KPMG Peat Marwick Thorne, 2002 41811 (ON CA), [2002] O.J. No. 1437 (C.A.), at para. 6, this court affirmed that the responding party to a motion for summary judgment has an obligation to “lead trump or risk losing”.
[29] While these cases rely on the summary judgment rules in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, they apply also to the summary judgment rules in the Family Law Rules: Brusch v. Brusch, 2007 ONCA 612, at para. 1.
EVIDENCE AND ANALYSIS
[38] The Applicant claims that the Respondent has not met the threshold requirement under Section 17(5) of the Divorce Act, for a request to vary a final Order; that threshold being a change in circumstances. This is the "stage one" requirement, set out by Pazaratz J. above.
[39] The Applicant claims that the "evidence" of the Respondent's mental health pre-dated the 2019 Order and was considered in negotiations leading up to the Order, and that there is no evidence of a change in the Respondent's mental health since that time, to meet the requirement of a "change in circumstances", required by Section 17(5).
Admissibility of Evidence
[40] Prior to considering the "evidence" on this issue, I would make a brief comment on the nature of the "evidence" offered. As indicated, both parties attached Reports from Dr. Dougherty and Dr. Guaiana, as "evidence" of the Respondent's mental health status. These reports are inadmissible hearsay and would require an Affidavit directly from Dr. Dougherty or Dr. Guaiana, to constitute admissible evidence on a Motion.
[41] While Rule 16 does provide for "hearsay" evidence on a Motion for Summary Judgment, it also provides that I may draw unfavourable conclusion from that fact.
[42] In response to the Applicant's Motion for Summary Judgment, the Respondent filed one Affidavit; sworn October 5, 2022. The Affidavit does not contain any facts within the personal knowledge of the Respondent. In fact, the Affidavit contains no facts at all. It simply attaches a report from Dr. Dougherty, dated September 21, 2022, obtained after the Respondent had commenced her Motion to Change.
[43] The Respondent also filed a previous Affidavit, sworn in August, 2022, which pre-dated the Applicant's Motion for Summary Judgment. This Affidavit also consisted of only hearsay Medical Reports from Dr. Guaiana, which pre-dated her Motion to Change.
[44] As well, the Applicant attached a Report of Dr. Dougherty, to his Affidavit, as evidence of the Respondent's mental health status prior to the final Order of 2019.
[45] While all of these Reports constitute inadmissible hearsay, I do have the discretion to admit and consider the evidence, in the context of this Motion. If I did not, then the Applicant's Motion for Summary Judgment would success at this preliminary step. The Applicant raised the lack of a "change in circumstances" as proof that there is no "genuine issue" requiring a Trial in the Motion to Change proceeding. The onus then moved to the Respondent to produce cogent, admissible evidence of a change in circumstances. A complete lack of evidence would clearly not meet that onus.
[46] However, the determination of a "change in circumstances" under Section 17(5), and of a "genuine issue for trial", under Rule 16, both require me to consider the impact of my decision on the best interests of the child, C.M.T.. All decisions relating to parenting orders must take into consideration the best interests of the child. For that reason, I have considered all of the "evidence" provided by the Respondent, in the form of Medical Reports, as evidence of the Respondent's self-reports and of the diagnosis made by both Dr. Dougherty and Dr. Guaiana, based on those reports and their own observations. I do not consider these Reports, to make a determination about the Respondent's actual mental health, but only for the purposes of determining whether this evidence meets the onus on the Respondent, under Section 17, to offer evidence of a change in the circumstances of the child, C.M.T., or in her ability to meet those needs.
[47] The Applicant also attached to his Affidavit, the Assessment Report of the OCL Clinician, dated June 11, 2018, and filed in the initial Divorce Application and in this proceeding. I have also considered this Report, not for a determination of the best interests of the child, but for the information available to the parties when they made their own determination of the best interests of the child, C.M.T., and entered the final consent Order of May, 2019.
ANALYSIS
[48] As indicated above, I find that the Applicant has provided sufficient evidence that the "threshold issue" required under Section 17(5) of the Divorce Act, being the need for a change in circumstances, has not been met in the Respondent's Motion to Change. If that is the case, there would be no "genuine issue for trial", of the Motion to Change, under Rule 16. The onus then shifts to the Respondent to "set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial".
[49] In this case, the specific facts would need to establish a genuine issue relating to:
a) A change in the circumstances of the child, since the making of the Order of May 14, 2019; or
b) A change in the Respondent's ability to meet the needs of the child, since the Order of May 14, 2019.
[50] As well, the change must be either not foreseen or not reasonably contemplated by the parties at the time the Order was entered into, and it must be substantial and continuing and a change that would likely have resulted in a different order.
[51] I am entitled to assume that the evidence provided by the Respondent is all of the evidence and the best evidence that she would submit at trial. The Respondent is required, in a Motion for Summary Judgment, to lead all material evidence or risk losing the Motion.
[52] Regarding the circumstances of the child, the Respondent has provided no evidence that the circumstances of the child have changed in the time between the May 14, 2019, Order and her Motion to Change in June 2020, or the present. In fact, the Respondent lead no evidence at all of the circumstances of the child, in May 2019 or at present. The only evidence before the Court, relating to the circumstances of the child, is that of the Applicant, who deposes that the child, C.M.T., is thriving in his present circumstances and that changes to his schedule cause him to become agitated and upset. I accept this as accurate evidence of the circumstances of the child.
[53] The Respondent's Motion to Change really focuses on the second factor, the submission that her ability to meet C.M.T.'s needs have changed. Counsel at the Motion, in her able arguments, submitted that the following evidence supported a finding that there was a "genuine issue for trial" on the change in the Respondent's mental health and, therefore, her ability to provide more meaningful care to C.M.T.:
a) that the Respondent had not made further allegations against the Applicant, which was a concern at the time the final Order was made;
b) that the Respondent's mental health issues "drove the settlement" and was the primary consideration, and that the Report of Dr. Dougherty, of September 2022, provides evidence of the Respondent's improved mental state since the settlement;
c) that the Respondent continued to access services and parenting programs, which is further stabilizing her mental health and would allow her to engage in a more meaningful way in parenting.
[54] I will address each in turn.
[55] Regarding the fact that the Respondent has made no further allegations against the Applicant; this was not in evidence, but I accept counsel's representation that this is accurate. However, I do not find that to be evidence supporting an improved mental state for the Respondent. There could be many reasons why the Respondent has not advanced further allegations, including the fact that she was not believed at the criminal trial, or the fact that the parties have been separated for 7 years and have no contact, leaving few opportunities for fresh allegations. Accepting this fact is in evidence, I do not see it as any reflection on the Respondent's mental state.
[56] Regarding the suggestion that the Respondent's mental health issues “drove the settlement”, I find there is also no evidence before the court to support that finding, particularly not offered by the Respondent. In fact, the evidence, even from the Respondent, is that by October 2016, she reported to her psychiatrist, Dr. Guaiana, that she was doing quite well and was not reporting any symptoms or mental health issues. Based on her reports and his observations, Dr. Guaiana diagnosed that the Respondent's Major Depressive Disorder and Posttraumatic Stress Disorder were in remission and diagnosed ongoing Borderline Personality Traits. The Respondent was discharged back to the care of her family doctor.
[57] Even the Assessment Report, upon which the parties relied heavily for the terms of their settlement, did not express as much concern about the Respondent's mental health issues, as her tendency to be untruthful and her involvement of C.M.T. in the dispute between her and the Applicant.
[58] As well, the Report of Dr. Dougherty, 6 years later, in September 2022, made the same findings as Dr. Guaiana, in 2016. Dr. Dougherty reports that, by her account, the Respondent was doing well and there did not appear to be any major concerns in terms of her mental health. She again reported her major stress to be her ongoing legal issues relating to her son. He confirms the Respondent last saw her psychiatrist, Dr. Guaiana, in October 2016. He diagnosed that the Respondent's Major Depressive Disorder and Posttraumatic Stress Disorder were in remission and diagnosed ongoing Borderline Personality Traits.
[59] A review of both Reports; October 2016 and September 2022, confirms that there has been little if any change in the Respondent's mental health status, or at least not reported by her or observed by her physicians, since 2016. By 2016 she appears to have managed the mental health crisis she experienced and was maintaining her mental health. This did not appear to factor heavily in the terms of settlement. Even if I was convinced that it did, which I am not, the Respondent has provided no evidence to support the suggestion that her mental state has improved or changed materially or at all, since the Order of May 2019.
[60] This is the change in circumstances the Respondent relies on in her Motion to Change and in oral argument of the Summary Judgment Motion.
[61] Lastly, regarding the suggestion that the Respondent continued to access services and parenting programs, which further stabilized her mental health, the evidence is that the Respondent accessed services and programs prior to the May 2019 Order. It is considered in the Assessment Report. The fact that she has continued to access helpful services is not a change in circumstances, just a positive step the Respondent continues to take.
[62] Despite the able argument on behalf of the Respondent, I find that the Respondent has not met the onus of showing that there is any genuine issue for trial, in relation to her Motion to Change, either relating to the circumstances of the child, C.M.T., or her own mental health circumstances.
[63] I further find that I do not need to exercise my discretion to access the enhanced fact-finding powers contained in Rule 16(6.1), in order to make this finding. I am able to make that finding based on the evidence (or lack of evidence) offered by the Respondent on both issues.
[64] Having found that the Respondent has not raised a "triable issue" in relation to her Motion to Change, under the guidelines set out in Hyrniak, I must also now determine whether I can fairly and justly adjudicate the dispute in the Respondent's Motion to Change, and whether this Summary Judgment Motion is a timely, affordable, and proportionate procedure to resolve the dispute. I find that I can.
[65] Having found that the Respondent has not provided evidence of a change in circumstances since the May 14, 2019, Order, I can make the further finding that the Respondent has not met the threshold issue in Section 17(5) of the Divorce Act and the Court would be without jurisdiction to vary the Order. I find, therefore, that I can fairly and justly adjudicate on the Respondent's Motion, without the need to require the parties to attend a Trial for this determination.
[66] As well, having found that there is no triable issue relating to the Respondent's Motion to Change, I find that requiring the parties, and the child, to proceed to a costly and intrusive trial proceeding would not be in the interests of either the child or the parties.
[67] The Report of the Children's Lawyer referred to the risk of ongoing exposure of the child, C.M.T., to the conflict between his parents. The Report also spoke of the need for C.M.T. to have stability and predictability in his life. The Report also warned against the very changes the Respondent is seeking in her Motion to Change; joint decision-making and a radical change in parenting time.
[68] Having found that the Respondent has not met the onus of proving a genuine issue for trial, and that the Court would, therefore, be without jurisdiction to vary the May 2019 Order, I find that this Motion for Summary Judgment is the most timely, affordable and proportionate procedure to resolve the dispute.
[69] As set out in Rule 16(6), and as stated by the Supreme Court, in Hyrniak, I must, therefore, grant the Applicant's Motion for Summary Judgment, and dismiss the Respondent's Motion to Change.
[70] The parties waited 4 years from separation, to come to the final consent Order of May 14, 2019, with the involvement of the Office of the Children's Lawyer, child protection agencies and the Respondent's physicians. Within 13 months the Respondent was seeking to radically change the Order, with no evidence to support the request. I find that this form of ongoing litigation, poses a risk to the child, C.M.T.. I am, therefore, prepared to grant the Applicant's request that the Respondent shall require leave of the Court, before commencing a further Motion to Change proceeding.
[71] For the above reasons, order to go:
Dismissing the Respondent, Tamara Lee Mestanovski's, Motion to Change dated June 3, 2020;
Removing the matter from the February 2023 trial sitting;
That the Respondent, Tamara Lee Mestanovski, shall require leave of the court prior to commencing a further Motion to Change in this proceeding;
In the event that the parties are unable to resolve the issue of costs as between themselves, the parties may provide written cost submissions, as follows:
a. The Applicant shall serve and file submissions within 30 days;
b. The Respondent shall serve and file submissions within 30 days thereafter;
c. The Applicant shall serve and file any reply submissions within 15 days;
d. Submissions shall be restricted to 3 pages, double spaced and 12-point font, not including Bills of Cost and any relevant Offers to Settle. Reply submissions shall be restricted to 2 pages.
“Justice Sharon E. Hassan”
Justice Sharon E. Hassan
Released: December 8, 2022
COURT FILE NO.: FS79/15-01 DATE: 20221208
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Tomoz Mestanovski Applicant
- and -
Tamara Lee Mestanovski Respondent
REASONS FOR JUDGMENT
HASSAN J.
Released: December 8, 2022