Court File and Parties

COURT FILE NO.: FC-11-FO003248-0003 DATE: 2024/02/16 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ZECHARIAH DONALD MAILE, Applicant AND: NICOLE MAXINE REID, Respondent

BEFORE: Gibson J.

COUNSEL: Zechariah Donald Maile, Self-represented Applicant Veronica-Ann Mallari, Counsel for the Respondent

HEARD: February 15, 2024

Endorsement

Overview

[1] The parties, who were never married, had a volatile relationship between 2008 and 2019. They have three children together: a son C., who is now 14, a daughter A., who is now 10, and a daughter E., who is now 7. A Final Order was made by Rogers J. dated December 12, 2018 (“the Final Order”), which updated the Order of Rogers J. dated January 6, 2012. Pursuant to the Final Order, the Applicant Father Zechariah Maile (“the Applicant Father”) has been paying child support in the amount of $805 per month in respect of the three children. Pursuant to the Final Order, the Respondent Mother Nicole Reid (“the Respondent Mother”) has custody of the children (now known as decision-making responsibility) and the children reside with her, with specified parenting time for the Applicant Father.

[2] The Applicant Father has filed a Motion to Change the Final Order, dated March 16, 2020. The parties have had one Case Conference in December 2020. No Settlement Conference has been held. The Applicant Father now brings a motion seeking interim relief on all of the issues that he seeks to vary in his Motion to Change. This is a high-conflict case in which the Applicant Father alleges extreme parental alienation by the Respondent Mother. There is a history of police involvement with both parties. I heard the Long Motion on February 15, 2024.

[3] In 2019, the family was referred to the OCL, and the OCL agreed to investigate and provide a report. The responsible clinician, Glory To, interviewed the children and produced a report dated July 16, 2021 (“the OCL Report”). The OCL recommendations at paragraph 11 of the report were: the Respondent Mother to be given decision-making responsibility in respect of the children; the schedule of parenting time with the Respondent Father to expand, once E. feels comfortable doing so; C. may have parenting time with the Applicant Father once C. and the Applicant Father are involved in reconciliation counselling based on the recommendations of the counsellor; and the Applicant Father to engage in a course or workshop to learn to manage C.’s behaviour. There has been no reconciliation counselling.

Issues

[4] The issue to be decided on this motion is:

1. Should the relief sought by the Applicant Father be granted on an interim basis?

Law and Analysis

[5] In the present case, the parties have each made countervailing allegations regarding the other in competing affidavits. However, it is not possible for me to make definitive findings of fact regarding parental alienation on the basis of the affidavit evidence which has been put before me on these motions. Such findings will require credibility assessment following viva voce evidence at trial. Moreover, on this motion the Applicant Father has not advanced any evidence in this regard beyond bald allegations.

[6] In McLeod v. Marsh, 2023 ONSC 1026, Henderson J. addressed the factors to be considered in a similar case at paragraphs 10 - 13:

[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 I have the ability to vary a final order but 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.

[7] The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing parenting order.

[8] I am not satisfied on the evidence before me that there has been a material change in circumstances likely to affect the best interests of the child. The dissatisfaction of the Applicant Father with the amount of child support he has to pay, which is the primary justification which he has advanced on the hearing of the motion, does not constitute a material change in circumstances likely to affect the best interests of the child.

[9] If there is no material change in circumstances, the inquiry ends. I so find. The threshold requirement has not been met.

[10] Even if I were to entertain some doubt on this criterion, the court must be satisfied – on a balance of probabilities – that a clear and compelling need to make an immediate change has been established. This is manifestly not the case on the present motion for interim relief.

[11] There are in this case some additional disturbing factors which require further comment.

[12] The focus in consideration of issues concerning decision-making responsibility and parenting time regarding children must be on the best interests of the child, not the interests and rights of the parents.

[13] There is no credible evidence before me that the Respondent Mother has interfered with the parenting time of the Applicant Father with the two girls, A. and E. The Respondent Father has exercised parenting time with them. The reluctance of the son C. to spend time with his father arises from an incident in which the Applicant Father sought to choke C. The reconciliation counselling between the Applicant Father and C. which was recommended by the OCL Report has not occurred.

[14] The Applicant Father advances as his primary argument in favour of a reduction of his child support obligations his own financial constraints. He repeatedly submitted that the cost of living has rapidly escalated in the past while. This is notoriously so. But his submission is glaringly blind to the obvious corollary that the cost of raising children increases in lockstep with the general cost of living. He proposes to privilege and advantage his own financial position, wilfully blind to the fact that the cost of caring for his three children borne by the Respondent Mother also increases. Their welfare is absent from his calculus.

[15] Unless otherwise provided under the Child Support Guidelines, the amount of a child support order for children is the amount set out in the applicable table, pursuant to the payor parent’s income.

[16] The Final Order ordered child support of $805 per month based on the Applicant Father’s income of $40,000. Paragraph 6 of the Final Order requires the Applicant Father to provide his income tax returns and CRA Notices of Assessment annually to adjust child support. He acknowledges that he has not done so. While the exact amount is in dispute, the Applicant Father’s income has increased significantly since the making of the Final Order in 2018. It is now, at a minimum, $53,000, without consideration of the additional amount he makes in overtime. He has not complied with his obligation to provide financial disclosure. It does not lie in his mouth to now request a reduction in his child support obligations.

[17] There is more. The Applicant Father’s contends that there should be a reduction in his child support obligation as “retribution” for what he perceives as the Respondent Mother’s unwillingness to facilitate his parenting time with his children. He set out his position at p.4 of his factum:

Due to a history of unfounded/unlawful denial of access to my children, I-Zechariah Maile, am seeking retribution in the form of a reduction of the existing child support agreement. The current amount of $805 each month is to be reduced to $300 each month to allow me to prepare for the 50/50 shared custody of my children.

[18] The concept of “retribution” in the context of child support obligations is, of course, abhorrent. It betrays a profound misapprehension on the part of the Applicant Father as to the nature of the obligation. Child support is the right of the child. It is not leverage to be applied between the parties to extract concessions or seek vengeance. The Applicant Father seeks to deprive the children of their right in order to punish the Respondent Mother. This is completely inappropriate.

[19] A further issue concerns what the Applicant father describes as a “police apprehension” order. He sets out his position at p.17 of his factum:

There shall be police involvement in the instance that one parent unlawfully withholds the children from the other who is entitled to parenting time on that specific incident date. The children will be physically removed from the withholding parent to be reunited with the other parent. If there has been a change of schedule/custody with consent for a particular day, agreed on by both parents, inarguable proof shall be provided of the consent of that day switch. If the Police Apprehension Clause is invoked more than 3 times by one parent, the withholding parent will forfeit custody, and sole custody (without visitation) will be rewarded to the parent with whom the child was withheld, due to the impact of continual police involvement on a child’s mental health.

[20] This astonishing proposal is completely contrary to the best interests of the children. It is not child-focused, but rather entirely self-serving and caters to the partisan interests of the Applicant Father. Granting police enforcement regarding parenting time is an exceptional remedy that should be reserved only for the rarest of circumstances. Its purpose is to protect a child, not to be weaponized by one party against the other.

[21] Police enforcement should be used sparingly, in exceptional circumstances, and as a last resort, and then only when it is shown to be required in the best interests of the child, after considering the risk of trauma to the child: Patterson v. Powell, 2014 ONSC 1419, at para. 34.

[22] A. and E. are already experiencing anxiety with respect to the Applicant Father’s attempts to keep them overnight for his parenting time, which they do not wish to do. It would be extremely upsetting for the children to have a police officer attend on an already inflamed situation to locate, apprehend, and deliver the children from one parent to the other.

[23] Section 36(2) of the Children’s Law Reform Act is intended to be a protection for children, not a weapon for disgruntled parents: Patterson, at para. 26. The CLRA does not make police enforcement available as a long-term multiple use, on-demand enforcement tool, which is the very fashion in which the Applicant Father wishes to use a police enforcement clause. The police enforcement clause proposed by the Applicant Father would be a complete abuse of police resources and an abuse of the court process. It will not be granted.

[24] The Applicant Father has inappropriately brought a long motion seeking terms of a final nature as interim relief, rather than taking the appropriate next steps pursuant to the Family Law Rules. The Applicant Father has not provided persuasive substantiating evidence in support of an interruption of the status quo for interim relief. He has not demonstrated that there has been a material change since the Final Order. A Settlement Conference should be held. Following that, if required, the matter can be set down for trial. The issues raised by the Applicant Father on this motion, if an agreement cannot be reached between the parties, all require a complete evidentiary record be established at trial for appropriate adjudication. There is a Final Order with respect to the issues that the Applicant Father raises in this motion. The status quo should be maintained until a final adjudication at trial or an agreement between the parties to change it.

[25] The Applicant Father’s motion will be dismissed.

Order

[26] The Court Orders that:

1. The Applicant Father’s interim Motion to Change is dismissed; and,
2. The approval of the Applicant Father as to the form and content of the Order is dispensed with.

Costs

[27] The parties are encouraged to agree upon appropriate costs. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum three pages double-spaced, plus a bill of costs) by email to my judicial assistant at mona.goodwin@ontario.ca and to Kitchener.SCJJA@ontario.ca. The Respondent Mother may have 14 days from the release of this decision to provide her submissions, with a copy to the Applicant Father; the Applicant Father a further 14 days to respond; and the Respondent Mother a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received any response or reply submissions within the specified timeframes after the Respondent Mother’s initial submissions, I will consider that the parties do not wish to make any further submissions, and will decide on the basis of the material that I have received.

M. Gibson J. Date: February 16, 2024