Court File and Parties

COURT FILE NO.: FS-16-10624-01 DATE: 2023/10/11 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: S.F., Applicant AND: W.F., Respondent

BEFORE: Tranquilli J.

COUNSEL: Sara Robinson, for the Applicant James Battin, for the Respondent

HEARD: September 29, 2023

Endorsement

[1] The respondent father brings this motion for interim variation of a final parenting order regarding one of three children, E.F., who primarily resides with the applicant mother. The father seeks an order providing that the child reside primarily with the respondent, with parenting time to the mother on alternate weekends. The father also seeks to vary the final order to provide him with decision-making responsibility for the child, with an obligation to consult with the mother. He relies on a September 2022 Voice of the Child Report in support of his position.

[2] The respondent father also seeks to vary child support commensurate with the proposed change in the parenting order; however, at the hearing of the motion the court was advised the parties would be able to address any changes to child support that may flow from this decision.

[3] The applicant mother opposes this relief and brings a cross-motion to dismiss the respondent’s motion and to vary the final parenting order to provide for parenting time on a 2-2-3 basis during the school year and week-about parenting time or an alternate shared arrangement during the summer. She asserts that decision-making responsibility should remain with her. She submits the evidence relied upon by the father only focuses on the short-term needs of the child and that the Voice of the Child Report is flawed and does not reflect the child’s current wishes. Variation cannot be made on the body of conflicting affidavit evidence and would make a substantial change to the status quo that has been in place for years. E.F. and his brothers know how to change the parenting schedule if they wish.

[4] The material issue this court must address is whether the father has established that variation is required because the existing order has created an untenable situation for the child that jeopardizes his physical and emotional well-being, and that the new arrangement proposed is in the child’s best interests such that it would be unfair to delay implementation until trial: S.H. v. D.K., 2022 ONSC 1203 at para. 61 (Div. Ct.).

[5] These reasons will explain why the court has concluded the father has met this onus. I am satisfied that the current situation is untenable for E.F. and that the proposed variation is so necessary and beneficial that it would be unfair to the child to delay implementation.

[6] Yet again, the court is faced with the impossible task of being invited to assess the merits of the parties’ positions based on numerous competing affidavits with comments on the other parent’s conduct and parenting ability and assertions as to the views and preferences of their son. However, the court does have the benefit of a Voice of the Child Report prepared in September 2022 and which clearly and unequivocally sets out the then 11-year-old child’s wishes and his reasons for wanting to reside primarily with his father.

Background

[7] The parties began cohabitation in 2005, married in August 2012 and separated in September 2014. There are three children of the relationship, B.F. born in 2008, the child E.F. who is the subject of this motion, born in 2010, and R.F., born in 2013. The father has re-partnered, and the mother now has two more children from other relationships.

[8] The parties executed a separation agreement in March 2015. By final order of Gorman J. dated November 16, 2017, the parties have joint custody of their three sons, with parenting time to the father on alternate Fridays from after school until Monday mornings before school, mid-week parenting time and parenting time during the holidays. The mother holds decision-making responsibility in respect of education, medical care, and extracurricular activities, with an obligation to consult with the father.

[9] For reasons the court need not determine on this motion, notwithstanding the final order, the eldest child B.F. has not had regular parenting time with his father. There is also controversy about the youngest child R.F.’s views and preferences as to parenting time but, again, that is not the subject of this motion.

[10] This specific conflict pertaining to the child E.F. first came forward to the court in July 2022 when the mother brought a contempt motion alleging the respondent had been withholding E.F. in contravention of the final order for the last 18 days. Police had been involved. The respondent asserted the child did not want to live with his mother and claimed E.F. had been physically and emotionally abused by the applicant. The motion could not proceed that day, but the parties agreed to a Voice of the Child Report and the father was ordered to actively encourage E.F. to have daily virtual contact with the applicant. The respondent then brought this motion to change.

Voice of the Child Report – September 2022

[11] The Voice of the Child Report dated September 22, 2022, followed two interviews of the child by a clinician. The first was conducted in the father’s home on September 6, 2022, and the second in the mother’s home on September 19, 2022. He had recently returned to his mother’s home since reportedly refusing to return to her home in July because of school arrangements.

[12] The clinician reported that E.F. clearly stated his views and preferences in both interviews. He presented as confident, clear, and consistent. He felt pressure from his mother to come to her home but said he did not feel influenced by either parent to say anything other than his own thoughts and feelings in the interviews. He was comfortable with his parents knowing what he said but was worried his mother would be upset and that they would fight. The clinician found that there was no indication the child had been coached or told what to say.

[13] In both interviews the child advised he wants to reside primarily with his father and to have parenting time with S.F. for two consecutive overnights, every other week. He was slightly more variable as to the terms of parenting time with his mother. In the first interview he said he wanted some say in deciding whether to visit with his mother and in the second interview said he wanted parenting time every other weekend with no contact between those visits.

[14] He told the clinician that he experiences his mother as frequently mad. She had physically grabbed and dragged him on a few occasions including in the summer of 2022 when she used his hand to slap him on his face. He said he did not feel scared of her. The clinician observed that he appeared sad when discussing the conflict. He wished his mother would not pressure him to see her. In both interviews he reported that his mother did not spend time with him when he was at her home.

Subsequent Events

[15] The father first brought his motion returnable in June 2023. By order of Mitchell J. dated June 23, 2023, a further VOC report was requested based on the concern that the report no longer represented the child’s current views and preferences. The motion was adjourned pending further OCL involvement. In July 2023, the Office of the Children’s Lawyer declined further evaluation, noting one had already been done in the previous year. Further, their review of the case history indicated there had been prolonged litigation and they were of the view there was little possibility that the involvement of the Office of the Children’s Lawyer would assist in resolving the matter.

Decision

[16] I find that E.F.’s current situation is exceptional and compelling. It signifies a material change since the circumstances of the 2017 final order such that an immediate variation is required. The child’s physical and emotional well-being is at risk. The trial of this matter is not until the June 2024 sittings, if it even gets called at that time given the limited court resources. That is too long a time for this 12-year-old child to wait in the face of this evidence. There has been too much delay in addressing the issue since it came to light in July 2022. His situation must be addressed now.

[17] The Voice of the Child Report sets out the child’s distress from his conflicts with his mother and her disciplinary approach, with episodes of physical and emotional abuse and where his mother otherwise does not spend time with him.

[18] I am satisfied it is in the best interests of E.F. for the parenting order to be varied to provide for him to have primary residency with his father and for his father to have primary decision-making, with an obligation to consult the mother.

[19] The voluminous competing affidavits do not persuade me that the child’s preferences have undergone a profound change since this report. The VOC Report was ordered in urgent circumstances in July 2022 after the child’s reported refusal to return to his mother’s care. The independent interviews confirmed what the father had asserted in his affidavit regarding the reasons E.F. gave him for not wanting to return to live with his mother. I acknowledge the mother’s belief that the child’s views in September 2022 were influenced by recently being in his father’s care. However, the clinician was clear that there was no evidence of coaching. The child presented as clear and consistent in both interviews.

[20] The child’s views and preferences deserve considerable weight when considering whether the interim variation is in his best interests. Although 11-years-old (almost 12) at the time of the interviews, he was clear and unequivocal in expressing his views. His reasons for wanting to live primarily with his father were rational in all the circumstances.

[21] I have considered other relevant factors as well as listed in s. 16(3) of the Divorce Act. His home environment with his mother has been strained, with episodes of emotional and physical conflict. He requires a stable environment with minimal conflict as he transitions into adolescence. His views do not involve cutting off contact with his mother entirely, but it appears to be an appropriate response to the unfortunate conflict. It is hoped that alternate weekend parenting time and at such other times as requested by E.F. will foster their relationship. The respondent father remains expected to actively encourage E.F. to maintain a relationship with the applicant mother.

[22] In the circumstances where the child’s primary residence is changing, I find that decision-making responsibility should also be varied. The parents remain in high conflict and cannot effectively co-parent. It makes sense in all the circumstances that the parent with primary residency holds the major decision-making responsibility. Indeed, that is the structure of the final order.

[23] This is not a situation where a parent has “won” or a contest as to who is the more loving parent. There is no doubt each parent loves E.F. and believes they have his well-being at heart. The court’s sole focus has been assessing a parenting order that is in E.F.’s best interests.

[24] An interim order shall go varying the order of Gorman J. dated November 16, 2017, as follows:

a. Paragraph 1 shall be amended to provide that the child E.F. shall have his primary residence with the Respondent father and the child E.F. shall have parenting time with the Applicant mother every other weekend from Friday after school until Monday morning before school and at such other times as are consistent with the child’s expressed views and preferences.

b. At paragraphs 2(a), (b), (f), the Respondent father shall have decision-making in respect of the child, E.F. after consultation with the Applicant mother;

c. At paragraphs 3, 4 and 5 the residency schedule shall be suspended in respect of the child E.F.

d. All other terms of the order of Gorman J. shall remain in full force and effect, subject to further order of this court or consent of the parties.

[25] The parties are encouraged to resolve costs. In the event costs remain in dispute, the respondent shall deliver his written cost submissions by October 20, 2023, and the applicant her written cost submissions by October 27, 2023. Written submissions shall not exceed two pages, excluding any offers to settle or bills of costs.

[26] In closing, the court notes on review of the final order and the VOC report that there are other aspects of the parenting order that may also require adjustment in light of this result; however, those were not the focus of any submissions, and it would be inappropriate for this court to so intervene. It is hoped the parties will find themselves able to make any further necessary interim adjustments to the parenting order on a consent basis.

Justice K. Tranquilli Date: October 11, 2023