Court File and Parties
COURT FILE NO.: FC-18-00000008-0002
DATE: August 10, 2023
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CLARK KENNETH MUNRO
Applicant
Self Represented Applicant
– and –
SOPHY MUNRO
Respondent
Self Represented Respondent
DECISION
ABRAMS, J
Introduction
[1] The Respondent father, Clark Kenneth Munro (“Mr. Munro”) is the moving party in this motion to change. He requests, inter alia, a Temporary Order changing the parenting regime in the consent Final Order of Kane J. (as he then was), dated February 13, 2020 (“the Final Order”).
[2] The Applicant mother, Sophy Munro (“Ms. Munro”), opposes the relief being requested. She contends that the Final Order should be maintained pending a full hearing on the merits.
Brief Background
[3] The parties married on November 12, 2012 and separated on February 4, 2017.
[4] There are three children of the marriage, namely: Rhys Clark Munro, born November 23, 2012 (10 years old); Hannah Sophy Munro, born September 2, 2014 (8 years old); and Isabella Jean Munro, born December 17, 2015 (7 years old).
[5] Following their separation, the parties agreed to a week-about, shared parenting schedule, which was eventually formalized in the Final Order.
[6] In late March 2020, Ms. Munro experienced a mental health episode brought on by the Covid-19 pandemic. In the circumstances, she ceded primary care of the children to Mr. Munro.
[7] Following a period of approximately four months, Ms. Munro asked that the parties return to their shared parenting regime. Mr. Munro refused, which necessitated an urgent motion to decide the issue.
[8] On July 17, 2020, the Court restored the shared parenting regime with a specific admonition that the parties adhere strictly with the time-sharing arrangements set out in the Final Order, pending further Order of the Court.
[9] In October 2022, Mr. Munro kept the child Rhys in his care citing that it was the child’s decision to live primarily with him. Further, Rhys purportedly determined to spend time with his mother when “he wanted to”.
[10] Rhys remained living in his father’s care for approximately eight months until the matter was Case Conferenced by Johnston J. on May 26, 2023. At the conclusion of the Case Conference, Johnston J. granted leave to Mr. Munro to bring this motion for temporary relief in advance of trial.
Issues
[11] The central issue to be decided on this motion is whether the current status quo, shared parenting regime should be disturbed on a temporary basis in advance of a trial? If so, what Temporary Order would be in the children’s best interests?
[12] The derivative issues related to child support are dependent on determination of the central issue.
Parties Positions
[13] Mr. Munro contends that Rhys should be placed in his primary care and full-time care based solely on the child’s expressed wishes that he be allowed to do so. Rhys will spend time with his mother when it suits him. Mr. Munro also asks that Hannah and Isabella be placed in his primary care 11 days out of every two-week period. In those circumstances, child support should be recalculated and ordered payable to him.
[14] Ms. Munro argues that there has been no material change in circumstances following the Final Order that would justify the Court making a Temporary Order in advance of trial. In the alternative, should the Court find that there has been a material change in circumstances, the children’s best interests would not be served by a Temporary Order made in advance of a full hearing on the merits.
[15] Notably, Johnston J. also ordered that the Office of the Children’s Lawyer (“OCL”) consider engaging in the matter. The OCL declined to do so.
Law
Parenting Time
[16] The law prior to Bill C-78 was that children should have maximum contact with both parents if it was consistent with the child’s best interests: Gordon v. Goertz 1996 191 (SCC), [1996] 2 S.C.R. 27. This even applied when the child was reluctant to see a parent.
[17] Then as now, the Court is tasked with viewing what is in the best interests of the child, not the parents. The maximum contact principle was mandatory, but not absolute. The maximum contact principle only obliged the judge to respect it to the extent that such contact was consistent with the child’s best interests; if other factors showed that it would not be in the child’s best interests, the Court could restrict contact: Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J. See also: Casselman v. Noonan, 2017 ONSC 3415.
[18] Maximum contact or “maximum parenting time”, although initially included in Bill C-78, was removed because of concern that this might suggest presumption of equal parenting time. Rather, in allocating parenting time the court must give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.
[19] Our Court of Appeal, in upholding the decision of Chozik J. in Knapp v. Knapp, affirmed the principle that a child-focused approach to achieve as much parenting time as is possible with each parent is the objective of the maximum contact principle. It may end up being equal time. It may not. Each family is different, and the principle is a guide set out to benefit children: Knapp v. Knapp, 2021 ONCA, per Benotto J.A.
Status-Quo
[20] The status quo – and avoiding reckless creation of a new status quo - are important considerations at the interim custody stage: Cosentino v. Cosentino, 2016 ONSC 5621 at paras. 16 and 17.
[21] It is a long standing legal principle that absent evidence of a material change and that an immediate change is required, the status quo is ordinarily to be maintained until trial: Niel v. Niel, 1976 1925 (ON CA), 28 R.F.L. 257 (Ont. C.A.), Grant v. Turgeon, 2000 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.J.); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (Ont. S.C.J.); Easton v. McAvoy, 2005 CarswellOnt 7379 (Ont. C.J.) ; M.W. v. E.B. and the Minister of Citizenship and Immigration, 2005 18315 (Ont. S.C.); and Horton v. Marsh, 2008 CarswellNS 371 (N.S. S.C.).
[22] In making an interim order, a court should generally maintain the status quo in the absence of important reasons suggesting that change is necessary in the child’s best interests: McEachern v. McEachern (1994) 1994 7379 (ON SC), 5 RFL (4th) 115.
[23] To disturb the status quo, there must be compelling evidence to show the welfare of the child would be in danger in maintaining the status quo, namely the evidence must clearly and unequivocally establish that the status quo is not in the child’s best interests: Miranda v. Miranda, 2013 ONSC 4704, para. 26.
[24] It is generally not in the best interests of the child to disturb a status quo on a temporary basis pending trial without compelling reasons. Those compelling reasons usually include an assessment report from a private assessor or the OCL recommending an immediate change in residence.
Analysis
[25] I would dismiss Mr. Munro’s motion, for the following reasons.
[26] From a procedural standpoint, the Court record is limited to competing and untested affidavit evidence from the parties alone. In the circumstances, it is impossible for the Court to weigh the veracity of certain out of court statements proffered by the parties, particularly those attributed to Rhys regarding his purported wishes to live with his father on a full-time basis.
[27] To that end, Mr. Munro argued in his Factum and during his oral submission that the Court must listen to what Rhys wants.
[28] Firstly, the child’s views and preferences are not properly before the Court, either by way of the OCL or through a voice of the child report prepared by a private assessor.
[29] Secondly, even if the Court was able to establish the bona fides of the professed claim in favour of the child’s wish to change the schedule, the record is not sufficient for the Court to assess the significance of the child’s wishes with respect to the relevant factors, specifically: (a) how clear and unambivalent the wishes are; (b) how informed the expression is; (c) the maturity level of the child; (d) the strength of the wish; (e) the length of time the preference has been expressed for; (f) practicalities; (g) the influence of the parent(s) on the expressed wish or preference; (h) the overall context; and (i) the circumstances of the preferences from the child’s point of view: Decaen v. Decaen, 2013 ONCA 218. See also Bala, Nicholas; Talwar, Victoria; Harris, Joanna, “The Voice of Children in Canadian Family Law Cases”, (2005), 24 C.F.L.Q. 221.
[30] Thirdly, as the Court pointed out in Wilson v. Villeneuve, 2022 ONSC 2886, a parent cannot hide behind the child’s purported wishes as a reason not to comply with a parenting order. A parent who does this abdicates his/her role to the child because the parent does not want to be responsible for the violation of the order, or to suffer the consequences of breaching the order. Whether the parent or the child agrees or disagrees with that order, both must comply with it. It is the responsibility of the parent to show that they are the adult, they are the parent, and they will take appropriate steps to comply with an access schedule: King v. King, 2016 ONSC 3752, at para. 48.
[31] Perhaps the Court will have the child’s views and preferences to consider as a factor in determining best interests at trial; however, at this interim stage it does not.
[32] On a substantive note, there has been no material change in circumstances following the Final Order that requires an immediate change.
[33] Mr. Munro argues that the four-month period in 2020 when Ms. Munro surrendered primary care of the children to him constitutes a material change in circumstances. I do not agree. To recall, by Order, dated July 17, 2020, the Court restored the Final Order with the admonition that the parties “shall strictly adhere with the time-sharing arrangements set out in the Order of Justice P. Kane, dated February 13, 2020”. Thus, the issue pertaining to the four month period of ceded primary parenting is res judicata, meaning that it has been adjudicated by the Court and may not be pursued further.
[34] Mr. Munro asserts that the eight-month period during which Rhys resided in his full-time care constitutes a material change in circumstances, creating a new status quo. I do not see it that way. A parent cannot create a new status quo through manipulation or deliberate acts: Izyuk v. Bilousov 2011 ONSC 6451 (SCJ); Nyari v. Velasco 2008 ONCJ 272 (OCJ). In Kimpton v. Kimpton, 2002 CarswellOnt 5030 (Ont. S.C.J.) it was noted that the status quo meant the primary or legal status quo, not a short-lived status quo created to gain a tactical advantage.
[35] The primary or legal status quo in this case arises from the Final Order. It is presumed to be correct and, in the children’s best interests, until the Court decides otherwise. Mr. Munro cannot hide behind the child’s purported wishes as a reason not to comply with a parenting order and thus create a material change in circumstances resulting in a new status quo.
[36] Finally, as Chappel J. pointed out in Newsham v. Francois, 2020 ONSC 4014, failure by a moving party to a variation proceeding to establish a material change in circumstances stops the inquiry into the substantive determination of the changes sought by that party. I agree.
Conclusion
[37] For all these reasons, Mr. Munro’s motion is dismissed.
[38] Parenthetically, parents must be mindful of the fact that a child’s extracurricular activities can be extremely important to them. In Rhys case, it’s hockey. For Hannah and Isabella, it appears to be skating. Supporting the child’s involvement in the activity should equate to meaningful parenting time. Concomitantly, a parent living vicariously through a child’s activity, as we often see in competitive, travel hockey, can sometimes have long lasting negative consequences, almost exclusively for the child. As in other areas of life, striking a balance is imperative.
[39] If the parties are unable to agree on the issue of costs, written submission of no more than four pages, double spaced, one side of the page, 12-point font or larger, shall be filed within 30 days, including a bill of costs and any offers to settle.
The Honourable Mr. Justice B. W. Abrams
Released: August 10, 2023
COURT FILE NO.: FC-18-00000008-0002
DATE: August 10, 2023
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CLARK KENNETH MUNRO
Applicant
– and –
SOPHY MUNRO
Respondent
DECISION
Abrams, J.
Released: August 10, 2023