Court File and Parties

COURT FILE NO.: FS-21-21122 DATE: 20240104 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: K.-A.V., Applicant AND: L.S.C., Respondent

BEFORE: Schabas J.

COUNSEL: Applicant, self-represented Denise Badley, counsel for the Respondent

HEARD: January 2, 2024

reasons on motion

Endorsement

Overview

[1] The parties obtained an order on consent on February 27, 2019, granting them a divorce (the “Divorce Order”). That order provided, among other things, that the Applicant (mother) would have sole custody of the two children of the marriage, born in 2012 and 2013, who would reside with her. The Respondent (father) was ordered to pay child support of $2,077 per month and was to have access to the children as agreed by the parties.

[2] The Respondent now seeks to vary the Divorce Order to, among other things, provide him with sole decision-making responsibility for the children and designating the children’s primary residence to be with him. The Respondent also seeks an order terminating child support payments as of August 27, 2022, which is when the children were removed from their mother and brought under the care of the Children’s Aid Society of the Niagara Region (the “Society”).

[3] For the reasons that follow, the motion is granted.

Background

[4] The parties married in 2011. Although they separated in September 2016, the parties continued to live in the same residence for a period of time, with the children, both before and after the divorce, until October 2019.

[5] In 2018, the Applicant took the children out of school to “home-school” them. The Respondent objected, but in light of the Divorce Order he could not prevent it. Over time, the Applicant and children became increasingly isolated. The Applicant prevented the Respondent from seeing the children, and the children were told by their mother that their father had died. The children did not attend school or receive adequate medical or dental care. The Applicant and children have moved several times and for some period of time lived in a hotel.

[6] In 2021, the Respondent brought a motion to vary the Divorce Order. In May and June of that year, the Applicant failed to attend four different court appearances on the matter.

[7] In 2022, the Society became involved and commenced a child protection application. The Society obtained an order from Bingham J. dated September 1, 2022, placing the children under its care. Over the next several months, the Society re-introduced the children to their father. The children had increasing visits with him which were positive such that in March 2023, the Society sought to vary the order of Bingham J. to permit the children to reside with their father.

[8] On the other hand, following the removal of the children into the care of the Society, the mother’s behaviour during visits upset the children. On one occasion she attempted to take the children away and the police were called. In January 2023, the Society postponed access by the mother and since February 2023 she has only been seeing the children virtually, for a short period of time once a week. Although originally arranged by the Society, her virtual visits are now arranged by the parties.

[9] On April 12, 2023, following a hearing at which the Applicant appeared, together with counsel for the children, the Society and the Respondent, Maddalena J. ordered that the children be placed in the care and custody of their father, subject to the supervision of the Society. The order also provided, among other things, that the children have access to their mother as arranged and supervised by the Society “taking into consideration the views and preferences of the children.” Maddalena J. also ordered the mother to attend for a mental health assessment.

[10] The April 12, 2023 order was based on extensive affidavit evidence from a child protection worker at the Society who described the Society’s concerns with the mother, and its confidence in the father. The affidavit set out concerns about the mother’s behaviour and mental health in terms quite similar to those described by the Respondent on this application. The Society noted the mother’s refusal to engage in mental health assessments or supports, which continues. The Society described the unstable environment in which the children had been living with their mother, moving residences on several occasions and not attending school. The affidavit listed at length many false allegations asserted by the mother, including allegations of conspiracies against her.

[11] The Society’s conclusion was that the Applicant “continues to display a significant lack of understanding and awareness into the child protection concerns” and that in light of the mental health concerns “the children would be at significant risk of harm in her care.”

[12] In contrast, the Society described the Respondent as “engaging in positive and progressive access with the children” and that it had no basis to think that the children’s father would not meet their needs or that the children were at risk. The children also expressed their desire to live with him.

[13] The children have resided with their father, the Respondent, since April 2023. By letter dated December 1, 2023, the Society expressed its view that it has no child protection concerns regarding the Respondent’s care of the children, and that, should the Divorce Order be varied to place the children in his care and custody, the Society will seek to withdraw its child protection application.

[14] The Applicant has not filed any evidence in response to this motion, despite a judge having canvassed with her “at great length” at a case conference whether she wished to do so and the steps needed to be prepared to respond to the motion. Instead, the Applicant simply disputed many of the facts orally at the hearing before me. This included claiming that the Respondent is an imposter. But there was no evidence to support that claim and the identity of the Respondent as the father has not been doubted by the Society or the children.

Analysis

[15] Divorce orders should only be varied when there has been a change in circumstances: Divorce Act, s. 17(5). There is no doubt that there are material changes here. The children were removed from their mother’s care because of concerns about their wellbeing in August 2022. They have not resided with her since that time, and the Society has only granted the mother very limited access to them due to continuing concerns about her mental health and a lack of appreciation of the child protection concerns raised by the Society. Further, since April 2023, the children have been living with their father, and the Society has no child protection concerns with them remaining with him.

[16] The only issue, then, is whether the parenting orders sought by the Respondent are in the best interests of the children. In my view, having regard to the factors in s. 16(3) of the Divorce Act, the relief requested is in the best interests of the children.

[17] The children are still quite young and need stability in their lives. The Respondent is providing that stability. He provided a viable plan for the children’s supervision to the Society in March 2023. He has demonstrated his willingness and ability to care for the children such that the Society is prepared to withdraw its child protection proceeding should the Divorce Order be varied as sought. The evidence is that the children wish to be with their father. He has been facilitating virtual visits by the children with their mother.

[18] In contrast, the past conduct of the mother is relevant to the decision to vary the Divorce Order which granted her custody or, in the current language, parenting time and decision-making responsibility. The Applicant did not, and does not, support a relationship between the children and their father; in fact, she did her best to alienate them, even telling the children their father had died. The children were isolated, deprived of schooling, social interaction, a stable home, and adequate medical and dental care. The mother’s care of the children required intervention by the Society.

[19] Accordingly, an order will issue varying the Divorce Order, as sought by the Respondent. With respect to custody and access:

(a) the Respondent, L.S.C., shall have sole decision-making responsibility over the children of the marriage;

(b) the primary residence of the children shall be with the Respondent, L.S.C.;

(c) the Respondent, L.S.C., shall be entitled to obtain government identification for the subject children, without the requirement of the signature and/or consent of the Applicant; and

(d) the Respondent, L.S.C., shall be authorized to travel outside Ontario with the children without the requirement of the signature and/or consent of the Applicant.

[21] With respect to child support, the Divorce Order shall also be varied to terminate the support payments payable by the Respondent to the Applicant as of August 27, 2022. This reflects the fact that the children were removed from the Applicant’s care on that date. A Support Deduction Order should also issue in accordance with these Reasons.

[22] The Respondent does not seek costs of this motion, and no costs are ordered.

Paul B. Schabas J. January 4, 2024