Court File and Parties

COURT FILE NO.: FC33/14-03 DATE: 2023/02/14 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Jamie Raymond McLeod, Applicant AND: Brianne Margaret Marsh, Respondent

BEFORE: HENDERSON J.

COUNSEL: Cynthia Mackenzie, for the Applicant Bayly Guslits, for the Respondent Eric Vallillee, for the Office of the Children’s Lawyer

HEARD: January 19, 2023

Endorsement

[1] The applicant father brings this motion seeking a temporary order varying the final order of Leitch, J. dated July 6, 2015. He asks that the children’s primary residence be changed from the respondent mother to him. He is supported by the Office of the Children’s Lawyer, (“OCL”). The respondent is opposed.

[2] By way of background, the parties were married August 8, 2008, separated in May 2012, and were divorced on July 6, 2015. They have two children: CM, who is 15 turning 16 this year and TM who is 12 turning 13 this year.

[3] The divorce order of Leitch, J. dated July 6, 2015 dealt primarily with parenting issues and child support. By its terms, the children were ordered to reside in the primary care of the respondent with specified access to the applicant each Thursday overnight to Friday and alternate weekends. The order also contained provisions that the parties have no direct contact with each other, that exchanges occur through a third party at a neutral location and that the parties consult prior to any major decision regarding the children but that the respondent had final say in the event of a disagreement.

[4] Shortly after this order, the respondent commenced a motion to change seeking to limit the applicant’s access.

[5] This proceeding resulted in the order of Vogelsang, J. dated July 11, 2016 based on the parties’ consent. That order reiterated the duty to consult with each other, the respondent’s final say in the event of a dispute, and the applicant’s access terms set out in the order of Leitch, J. The order of Vogelsang, J. also contained prohibitions against the parties speaking negatively about each other in the presence of the children and against involving the children “in conversations of inappropriate adult topics.”

[6] For the purposes of this motion, the applicant argues that there has been a material change in circumstances. With the passage of time, the children are older with different needs than at the time of the order of Leitch, J. This change is especially acute when taken in the context of the immediate issues in the respondent’s home. There is escalating conflict between the mother and the children, especially with CM. The children themselves have had to be physically separated during fights. CM is performing poorly at school with attendance issues.

[7] The OCL supports the applicant’s position. Based on interviews with the children, it describes the respondent’s care of the children as a chronic history of dysfunction. Regular screaming matches, the respondent’s physical altercations with the children that have included at least one incident of serious pinching of CM, locking the children in their rooms for discipline, and lack of food in the house were cited as examples of this dysfunction. The OCL states that the children wish to move to their father’s home and that their stated views and preferences have been clear and consistent.

[8] The respondent responds to the accusations as follows:

1. She accepts that she has had to get physical with the children but only to the extent of separating the children during fights.
2. The pinching incident was unintentional. She did not mean to do it.
3. She denies locking the children in their rooms. She does admit sending them to their rooms and denying privileges until they are ready to apologize.
4. She says there is always plenty of food in the house. It is just that the children want food like pizza and sushi.
5. She wants to instill in the children a good work ethic.

[9] The respondent further argues that this matter must be resolved at trial and not on motion. The evidence needs to be tested with the court hearing viva voce evidence subject to cross examination. She says there are serious credibility issues. She also points out that there are no serious child protection concerns, no allegations of alienation and no incidents of overholding or withholding of the children. She disagrees that the children’s views and preferences have been clear and consistent.

The Law

[10] The issues may be summarized as follows:

1. Can a final order be varied on an interim motion?
2. If so, under what circumstances?
3. Do the facts of this case meet the threshold required and, if so, what order is in the children’s best interests?

[11] Both parties concede that the starting point of any analysis is the decision of Pazaratz, J. in F.K. v. A.K., 2020 ONSC 3726. Starting at paragraph 48, Pazaratz, J. provides an excellent overview of the legal considerations:

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] 2 S.C.R. 27 (SCC).

49. The first step: There must be a material change in circumstances since the last order was made. a. There must be a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs. b. The change must materially affect the child. c. It must be a change which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. The change must be substantial, continuing and "if known at the time, would likely have resulted in a different order." L.M.L.P. v. L.S. [2011] SCC 64. d. The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order. e. If there is no material change in circumstances, the inquiry ends. The court would be without jurisdiction to vary the order. Litman v. Sherman, 2008 ONCA 485 (Ont. C.A.). f. If there is a material change, the court must move to the second stage and consider the best interests of the child and whether to vary the original order.

50. The second step: a. If a material change in circumstances has been established the court then embarks on a fresh inquiry into the best interests of the child. b. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. Bubis v. Jones; Persaud v. Garcia-Persaud 2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642. c. The court must ascertain the child's best interests from the perspective of the child rather than that of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child. Gordon v. Goertz; Young v. Young. d. The child should have maximum contact with both parents if it is consistent with the child's best interests. Gordon v. Goertz; Rigillio v Rigillio 2019 ONCA 548 (Ont. CA). e. Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs. Gordon v. Goertz.

51. The added complication: the father seeks a temporary variation of a final parenting order. This requires that the court conduct an even more stringent analysis: a. In all instances, courts must exercise caution before changing an existing arrangement which children have become used to. b. This is especially the case where the existing parenting arrangement has been determined by way of court order. The starting point is that court orders are presumed to be correct. Montgomery v. Montgomery; Gordon v. Gordon 2015 ONSC 4468 (SCJ); Oickle v. Beland 2012 ONCJ 778 (OCJ). c. And the level of required caution is further heightened if the court is being asked to change a final parenting order on a temporary basis. If the general rule is that we are reluctant to change temporary orders pending trial, then it goes without saying that we should be even more reluctant to change final orders pending determination of the issue. d. Although counsel did not raise jurisdiction as an issue, I am satisfied the court has the authority to grant a temporary variation of a final order in the appropriate circumstances. Stokes v. Stokes 2014 ONSC 1311 (SCJ); Huliyappa v Menon 2012 ONSC 5668 (SCJ); Clements v Merriam 2012 ONCJ 700 (OCJ). e. But the evidentiary basis to grant such a temporary variation must be compelling. f. The court must start with the aforementioned two-part material change in circumstances analysis. g. But for a temporary variation, the court must also assess whether the changed circumstances have created a situation of actual or potential harm, danger, or prejudice for the child; of such nature or magnitude that immediate rectification or correction are required to safeguard the child’s best interests. h. The onus on the party seeking a temporary variation is onerous. They must establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being. They must establish that the situation is so serious and potentially harmful that any delay in addressing the problem is likely to continue or exacerbate actual or potential physical and/or emotional harm for the child. i. The court must be satisfied that the child’s best interests require an immediate change – to reduce the detrimental impact of unacceptable negative dynamics or behaviours. j. The court must be satisfied that the existing order has come to be demonstrably contrary to the best interests of the child – and that the proposed temporary variation is urgently needed to shield the child from likely future harm. k. Implicitly, the court must have a level of confidence that the temporary variation would not only remove the child from a negative situation, but that the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation. l. And given the qualitative difference between untested affidavit materials on a motion compared with a more thorough evidentiary analysis at a trial or oral hearing, the court must be satisfied – on a balance of probabilities – that a clear and compelling need to make an immediate change has been established. m. On a temporary motion, the status quo will have a strong gravitational pull – until the moment when the court determines that a child is in peril. After that, priority switches to rescuing and protecting the child. And the pace of correction is directly related to the magnitude of the child’s current exposure to harm.

[12] I conclude then that the I have the ability to vary a final order but that the threshold is very high. According to Pararatz, J. the evidentiary basis must be compelling and that “the changed circumstances have created a situation of actual or potential harm, danger or prejudice for the child of such nature or magnitude” that immediate change is necessary. The applicant bears the onus of proof.

[13] The applicant cited the decision of Dambrot, J. sitting in Divisional Court in S.H. v. D.K., 2022 ONSC 1203 (Ont. Div. Ct.) as a modification of the threshold described by Pazaratz J. At paragraph 40, Dambrot, J. concurred that the court must be satisfied “that circumstances exist of so compelling and exceptional nature that they require an immediate change”. However, he continued:

40 … I would only caution that there may be exceptional circumstances that justify a temporary variation of a final order other than those described in F.K. v. A.K. It will be recalled that Pazaratz J. insisted that a temporary variation of a final parenting order could only be made where the child’s physical and/or emotional well-being is in jeopardy and the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation. That is certainly an indication of how exceptional the circumstances must be to make an interim variation of a final parenting order, but I would not foreclose the possibility that other, equally compelling circumstances might meet the test.

[14] The Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), is the applicable legislation. Section 16 speaks to a child’s best interests. The recent amendments introduced a broad range of factors which the court is to take into account when deciding whether a parenting plan in the child’s best interests.

[15] Section 16(2) states that when the court considers the factor set out in s. 16(3), the primary consideration is the child’s physical, emotional and psychological safety, security and well-being. Section 16(3) reads as follows:

Factors to be considered

16(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

a. the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; b. the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; c. each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; d. the history of care of the child; e. the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; f. the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; g. any plans for the child’s care; h. the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; i. the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; j. any family violence and its impact on, among other things, i. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and ii. the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and k. any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

[16] Section 16(4) addresses in greater detail the reference to family violence in s. 16(3)(j). Section 16(6) speaks to the allocation of parenting time and states:

Parenting time consistent with best interests of child

16(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

[17] Dambrot, J. in S.H. v. D.K. supra, sent a cautionary note when the court is asked to overturn longstanding status quo on a temporary motion. Analytical rigor must be maintained. In overturning a decision that changed a final order on a temporary basis, Dambrot, J. wrote at paragraph 61:

I noted earlier the motion judge’s caveat on the stringent legal test in F.K. that cautioned against placing too much emphasis on maintaining the status quo may have led him into error. I am satisfied that it did. Having reviewed his reasons in detail, I am driven to the conclusion that he watered down the importance of maintaining the status quo on an interim motion, and that his approach runs directly contrary to what Benotto J. said in Davis v. Nusca, that “there is the basic principle of maintaining the status quo until trial which is extraordinarily important in family law cases.” The motion judge lost sight of the importance of maintaining the status quo until trial and conflated the requirement that there be compelling reasons to make an order on an interim basis with a determination of the best interests of the child. He gave the requirement of compelling reasons no real meaning, and disturbed a long-standing parenting arrangement on an interim basis in the complete absence of urgent, exceptional or in any other sense compelling reasons. In effect, he gave final relief on an interim motion.

Analysis

[18] I find on the basis of the evidence before me the relevant facts to be as follows:

1. There is significant and chronic dysfunction in the respondent’s household which is impacting the children’s physical, emotional, and psychological well-being. There are ongoing altercations between the children, and between the children and their mother. The respondent does not materially dispute the allegations. She does not deny the pinching incident with CM occurred, only to say it was not intended. I do not doubt the respondent regrets her actions, but the resulting injury was serious enough to suggest at the time, in a fit of anger or frustration, it was intended. The Respondent also admits to having to intervene physically between the children during their fights. The respondent disciplines them by denying them privileges or sent to their room until they apologize.
2. While there may be different explanations, there is no dispute that CM is not doing well at school in performance or attendance. The situation is bad enough that the respondent is pursuing counselling for CM.
3. The parents have never been able to cooperatively parent. As far back as 2014, Marsha McHardy, a clinical investigator for the OCL, observed that fundamentally the parents cannot get along. It is interesting to note that within a year of the order of Leitch, J., the respondent brought a motion to change which resulted in, among other terms, the re-statement of the respondent’s necessity to consult with the applicant.
4. It is evident that the parents have two different parenting styles. The respondent is rule-oriented and says she wants to instill in the children “a good work ethic.” The applicant, in contrast, appears to take more laidback approach. It is not for me to say, at this time, which is the better or more appropriate approach. What is clear, though, on the largely undisputed evidence, is that the situation in the respondent’s home is chronic dysfunction.
5. It is also clear from the respondent’s evidence that she takes no responsibility for the current circumstances. Rather, she lays all the blame on the applicant. She says he is underemployed and has not taken financial responsibility for the children. He does not assist her with the array of extracurricular activities the children have been involved in. He harasses her about her parenting. In her view, a change in the parenting schedule, as proposed by the applicant, will “cause significant damage to structures and schedules.” This statement best illustrates the respondent’s mindset. It is more about “structures and schedules” than addressing the prevailing environment of hostility and confrontation in her home.
6. Despite the objections of the respondent, I find the children’s views and preferences to be clear and consistent. The OCL counsel has been involved with the family since May 2022. A clinical investigator was assigned in November 2022 when the applicant brought his motion. The children have been interviewed at least five times. Based on the affidavit of the clinical investigator, several themes emerged from the independent interviews with the children:
   • That there was a high level of stress and conflict at home;
   • That the respondent was not providing sufficient emotional support to them
   • That less time with the respondent would benefit everyone and reduce the level of stress;
   • That, conversely, more time with the applicant would be beneficial;
   • That the children did not want to be separated;
   • That they still want to maintain regular parenting time with the respondent which would be accommodated by “flipping” the current parenting schedule.

[19] In my view, the circumstances have reached the level where the parenting schedule set out in the final order of Leitch, J. should be varied on a temporary basis pending trial. I do so for the following reasons:

1. The applicant has met the onus of establishing a prima facie case for a material change in circumstances for this motion (see Berta v. Berta, 2019 ONSC 505, 23 RFL (8th) 201). The aging of the children plays a significant role. The children are seven years older than they were at the time of the original order. They are now adolescents with the eldest turning 16 this year. While that is not to say aging of the children of itself equates to material change, it can be, taking into account the broader context. At the time of the original order, the children were young and, from a parenting perspective, more malleable. They are now into their teenage years, more mature, and more assertive, striving to be individuals. At this stage, they find themselves in a household filled with stress, hostility, and conflict that is significantly impacting their emotional, physical, and psychological development. Counselling is being arranged for CM. Their circumstances have reached an intolerable level. It is urgent that the situation be addressed now. The matter has been placed on trial sittings in December 2023, but with backlogs, it may not be tried until early 2024. Time is running short for these children and another year of chronic dysfunction may inflict permanent damage to these children’s development. There is also a serious risk of permanent estrangement between the children and the respondent.
2. Having established that there has been a material change in circumstances, what then, is in the parenting plan that is in the children’s best interests? I have considered the factors listed in s. 16(3) of the Divorce Act. In particular, I give considerable weight to the children’s views and preferences. I have considered their age and level of maturity. The views are expressed in age-appropriate language, and independently. They are stressed by the continuous conflict and seek a way out. They have proposed a solution: flip the current parenting schedule. In my view, this is a considered response and not what may be termed as a more typical adolescent “nuclear” response that would entail cutting off relations with a parent entirely. They see their father’s home as safe and supportive. They also believe less time with their mother will result in less stress and improved relations with her. I would view this proposal as a measured withdrawal avoiding the uncontrolled upheaval that would result should the children “speak with their feet.”

[20] I agree that such a plan makes eminent sense and, in my view, is in the children’s best interests. Temporary order shall go varying the order of Leitch, J. dated July 6, as follows:

1. Commencing February 18, 2023, the subject children shall reside primarily with the applicant.
2. The respondent shall have parenting time with the children on the terms set out in paragraph 3 of the order of Leitch J., dated July 6, 2015, mutatis mutandis.
3. All other terms of the order of Leitch, J. shall remain in full force and effect, mutatis mutandis, save paragraph 20 regarding child support, which shall be suspended pending further order of the court.
4. Parenting exchanges will occur at the children’s school, or if school is not in session at the McDonald’s restaurant located at the intersection of North Centre Rd. and Fanshawe Park Rd. E. London, Ontario.
5. The applicant shall serve and file submissions regarding costs with 15 days. The respondent shall serve and file her response within 15 days. Written submissions shall not exceed five pages not including offers to settle and bill of costs.

“Justice Paul J. Henderson” Justice Paul J. Henderson Date: February 14, 2023