COURT FILE NO.: FC-09-00000303-0001 DATE: 2024-04-17
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
B E T W E E N:
Kyle Timothy McNaughton Applicant Michael Liddiard, counsel for the Applicant
- and -
Sarah Kimberley Parrish Respondent Self-represented litigant
Marlene VanderSpek, counsel for the OCL on behalf of the child HEARD: April 12, 2024
THE HONOURABLE JUSTICE M. BORDIN
REASONS FOR JUDGMENT
Overview
[1] The applicant father and respondent mother were never married. The parties’ only child together is Dakota Cassandra Parrish, born November 1, 2008 (“Dakota”). She is currently 15 years old.
[2] On January 6, 2014, Justice Brown made an order (the “Order”) which provided that the applicant was to have parenting time with Dakota on alternate Saturdays and Sundays, and after June 7, 2014 the parties were to discuss the expansion of the applicant’s parenting time and, if they could not agree, they were to attend binding mediation or arbitration. The Order also provided for the payment of child support by the applicant.
[3] The applicant issued a motion to change on October 19, 2020.
[4] The applicant served a motion for summary judgment on January 3, 2024 seeking the following orders:
a. that the applicant shall have sole decision-making responsibility for the child Dakota Cassandra Parrish, born November 1, 2008;
b. that the applicant have sole parenting time of Dakota;
c. that any parenting time with the respondent will be at Dakota's discretion and request;
d. that the respondent be restrained from contacting Dakota directly unless such contact was first initiated by Dakota. Should Dakota initiate contact and later request it cease, the respondent shall restrain from further contact;
e. that the respondent be restrained from contacting Dakota's teachers, school officials, doctors, dentists, health care providers, summer camp counsellors, or others involved with Dakota;
f. that the respondent be restrained from annoying, harassing, or molesting the applicant's other family members or his employers;
g. that Dakota shall hold all of her own important documents, including but not limited to her Canadian passport, birth certificate, social insurance number, and health documents;
h. that only the applicant may apply for or renew any important documents for Dakota, including but not limited to her Canadian passport, birth certificate, social insurance number, and health documents, without requiring the consent of the respondent;
i. that the applicant be permitted to travel with Dakota for any period of time not exceeding three weeks for the purpose of vacation and/or sporting events without the consent of the respondent;
j. that no arrears are payable by either party and unless a material change in circumstances arises, and the applicant shall not seek child support payments from the respondent; and
k. costs.
[5] The summary judgment motion came before Justice MacNeil on February 8, 2024. The respondent requested an adjournment to seek legal advice. Justice MacNeil granted an adjournment and ordered that the respondent serve and file her responding materials by April 3, 2024.
[6] In support of his summary judgment notice of motion dated January 2, 2024, the applicant swore two affidavits, dated January 2, 2024 and January 18, 2024. The Office of the Children’s Lawyer (“OCL”) filed a factum. The respondent did not file any affidavits or materials in response to the motion for summary judgment. She did not cross-examine the applicant. The respondent appeared at the motion.
[7] The respondent initially did not seek an adjournment, but she changed her position and sought an adjournment of the motion. She indicated that she has surgery scheduled for April 19 and she has not been able to prepare responding materials. However, she acknowledged that she works five days a week. I denied the adjournment request on the basis that she had almost two months to prepare responding materials and has been able to work.
[8] I canvassed with the parties whether, if the respondent wanted to tender evidence, she could do so by giving viva voce evidence and be cross-examined and, given that the applicant might be caught by surprise by the evidence, the applicant could give brief viva voce evidence in response if he so chose. All parties agreed to proceed on this basis. As a result, the respondent was sworn, gave evidence in chief and was cross-examined. The applicant chose not to give further evidence.
[9] At the conclusion of the evidence, all parties confirmed they were content to proceed with the summary judgment motion on the affidavits filed by the applicant and the respondent’s viva voce evidence.
Facts
[10] I did not find the respondent credible. She was evasive in cross-examination. She repeatedly did not answer the question asked and instead give explanations for the facts suggested by the question. She repeatedly changed the subject in her answers. On occasion, the respondent’s answers would change from one question to the next; two examples are her evidence about the passport and her tax returns. There are others. Her denials of the allegations about her treatment of Dakota were not convincing. The respondent did admit and corroborate most of the evidence tendered by the applicant by affidavit.
[11] Dakota began spending increasing amounts of time with the applicant in 2015. Since January of 2020, Dakota has resided solely with the applicant. The respondent conceded that she agreed to let Dakota live with the applicant and change schools. The respondent testified that for approximately 18 months Dakota lived primarily with her paternal grandmother until the applicant and his family moved in with his mother in 2021. She agreed that Dakota has lived together with the applicant since 2021. Even if I accept the respondent’s evidence that for 18 months Dakota lived with the paternal grandmother, Dakota was not living with the respondent during this time and the respondent was aware of where she was.
[12] The respondent has only spent time with Dakota on one or two occasions after Dakota went to live with her father. The respondent has not exercised any parenting time with Dakota since 2021 and has only seen Dakota once since then at the respondent’s sister’s house.
[13] The terms of the Order have not been varied since Dakota began to reside with the applicant.
[14] The respondent has at times blocked contact from Dakota because she did not like the way Dakota was communicating with her.
[15] Dakota reported that communications with her mother are stressful, that she is verbally abused by the respondent, and that she does not want to be forced to have contact with her mother. The respondent acknowledged that Dakota told her that she found the respondent’s texts overwhelming. The respondent has continued to text Dakota because Dakota has not told her to stop. Dakota has not responded to the respondent’s texts.
[16] The respondent testified that Dakota had excellent grades before she went to live with her father. The applicant deposes that since 2019 Dakota’s grades have significantly improved. No one disputes that Dakota is presently doing well. The applicant has supported Dakota in all facets of her life, has ensured she received orthodontic treatment, and that she obtained orthotics to aid with a medical condition she was experiencing. Dakota is currently an active athlete, playing competitive travel volleyball, and is the captain of her team.
[17] The applicant has been unable to travel with Dakota because the respondent has refused to provide her consent. Recently, he intended to travel to Florida with Dakota, but the respondent withheld consent. The respondent refused to deliver Dakota's passport among other important documents. The respondent admitted that she was asked for Dakota’s passport and that the passport has been an outstanding issue for quite some time but testified that she did not refuse to provide it, she required a conversation with Dakota about it before giving it to her. It is clear that part of the respondent’s motivation was the applicant’s desire to travel to Florida with Dakota. The respondent still has Dakota’s health card. She does not know where Dakota’s original birth certificate is but testified she has applied for a new one.
[18] The applicant tendered as an exhibit a Case Balance Summary and printout as of January 3, 2024 (“Summary”) from the Family Responsibility Office (“FRO”). The summary indicates that payments of child support began in 2011 and that there are no arrears of child support owed by the applicant. In 2020, the respondent voluntarily signed a withdrawal from FRO enforcement. She did so because she felt it was no longer appropriate for the applicant to pay her child support and recognized that she might have to pay him child support.
[19] The respondent testified that the Summary is wrong and that the applicant owes arrears from sometime before 2019. The respondent testified that the applicant failed to produce his notices of assessment and tax returns from 2013 to 2019. However, she has never brought any kind of proceeding to pursue the allegedly missing documents. I do not accept the respondent’s bald assertions. I find that there are presently no arrears of child support by the applicant.
[20] The applicant currently makes $27 per hour and works approximately 40 hours a week through a temp agency. The applicant has not sought child support from the respondent.
Position of the Respondent and the OCL
[21] The respondent opposes the relief sought by the applicant. She references alleged breaches of the Order by the applicant, asserts she has never harassed anyone, and she is of the view that the applicant’s mother should have sole decision-making authority for Dakota. The respondent has not added the applicant’s mother as a party nor brought proceedings seeking such relief.
[22] An OCL clinician was not appointed. The OCL supports the relief being sought by the applicant that a final order should be made providing the applicant with sole decision-making authority and that any and all contact between Dakota and her mother should be pursuant to the child's views and preferences.
[23] The OCL’s position is that the requested relief of the applicant is in accordance with Dakota's stated views and preferences and that there is no need for this matter to proceed to trial.
[24] The OCL takes no position as it relates to financial matters between the applicant and respondent.
Law and Analysis
[25] After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case: r. 16(1) of the Family Law Rules, O. Reg.114/99. Pursuant to r. 16(2), a motion for summary judgment under subrule (1) may be made in any case that does not include a divorce claim.
[26] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49.
[27] When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective: Hryniak, at para. 50. On a summary judgment motion, the evidence need not be equivalent to that at trial but must be such that the judge is confident that they can fairly resolve the dispute: Hryniak, at para. 57.
[28] In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence unless it is in the interest of justice for such powers to be exercised only at a trial: r. 16(6.1).
[29] The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation: r. 16(6.2).
[30] When the use of the new powers would enable a judge to fairly and justly adjudicate a claim, it will generally not be against the interest of justice to do so. What is fair and just turns on the nature of the issues, the nature and strength of the evidence, and what is the proportional procedure: Hryniak, at para. 59.
[31] Generally, courts have emphasized the need for caution and judicial restraint in the use of the summary judgment in order to afford proper attention to the rights of the parties and the best interests of the child: A.E.A. v. F.A.H., 2015 ONCJ 339.
[32] It has often been said that a party to a summary judgment motion must lead trump or risk losing.
[33] This is an appropriate case for summary judgment. The exercise of the powers in r. 16(6.1) and (6.2) are not against the interests of justice. The principal facts are not in dispute. I can make the necessary findings of fact and apply the law to the facts. The respondent was given the opportunity to respond to the evidence of the applicant and lead relevant evidence. The applicant was given the opportunity to do the same. Proceeding by summary judgment on the evidence before me is proportionate, more expeditious, and a less expensive means to achieve a just result. There is nothing to be gained from a full trial.
[34] A court shall not make an order that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order: Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 29.
[35] The Supreme Court of Canada in L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, at paras. 29 to 39, set out the applicable principles in determining and addressing a material change in circumstances, including:
a. the court must first determine whether the conditions for variation exist and if they do exist what variation of the existing order ought to be made;
b. the court must be satisfied that there has been a change of circumstance since the making of the prior order or variation;
c. the onus is on the party seeking a variation to establish such a change;
d. the change must be a material one, meaning a change that, “if known at the time, would likely have resulted in different terms”;
e. the test is whether any given change “would likely have resulted in different terms” to the order;
f. what amounts to a material change will depend on the actual circumstances of the parties at the time of the order; and
g. certain other factors can assist a court in determining whether a particular change is material. The subsequent conduct of the parties, for example, may provide indications as to whether they considered a particular change to be material.
[36] It is clear on the facts before me that there has been a material change in circumstances from the time of the Order. In fact, a new status quo has been established since 2021 that is at odds with the Order.
[37] Section 24(1) and (2) of the Children’s Law Reform Act, requires that in making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with the section, that in determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. The factors related to the circumstances of the child are enumerated in s. 24(3). The weight that should be accorded to each factor will vary depending on the unique features of every child and case: McBennett v. Danis, 2021 ONSC 3610, 57 R.F.L. (8th) 1, at para. 93.
[38] The views and preferences of a child are not to be confused with the child’s best interest. However, the court must make an order that is practical, especially when dealing with teenagers. Attempting to force a teenager to comply with an order contrary to their expressed desires may even be futile: Stefureak v. Chambers (2004), 6 R.F.L. (6th) 212, at para. 64. The court in Krasaev v. Krasaev, 2016 ONSC 5951, at paras. 45 to 48 reviews several other cases which consider the challenges and considerations in making orders affecting teenage children, particularly those who are approximately Dakota’s age. I bear those challenges and considerations in mind.
[39] Dakota is over 15 years old. She resides with the applicant. She has had no parenting time with the respondent since 2021. Communications between Dakota and the respondent are stressful for Dakota; they have also been extremely limited. Dakota does not seek to permanently sever the relationship with the respondent, but to control it pursuant to her views and preferences. Given her age, those preferences are entitled to some weight.
[40] Dakota has expressed some concern about the respondent’s text messages. She has not responded to the respondent’s text messages. The respondent’s position on this is troubling. She asserts it is the responsibility of 15-year-old Dakota to tell her mother to stop texting. The respondent will clearly keep texting until she is told to stop.
[41] The facts before me indicate that changing the parenting time, the decision-making authority, and restraining the respondent from contacting Dakota unless initiated by Dakota as sought by the applicant is in the best interest of Dakota. There is no genuine issue requiring trial on these issues.
[42] There is no evidence to support the granting of an order restraining the respondent from annoying, harassing, or molesting the applicant's other family members or his employers. There is no genuine issue for trial with respect to this issue. This relief is dismissed.
[43] The applicant’s evidence is that the respondent has contacted Dakota's school on multiple occasions without Dakota's consent. Each time this occurs, the principal must inform Dakota and speak with her about her mother's communications. This results in Dakota being pulled out of class, disruption to her class time, and leaves Dakota upset for the remainder of the day, unable to focus on her lessons. The respondent denied this. She testified she has never contacted the school. The school contacted her once and she responded. I do not accept the respondent’s evidence. Given the description of the interactions between Dakota and the respondent, as well Dakota’s age and wishes, I find that it is appropriate to grant an order restraining the respondent from contacting Dakota's teachers and school officials. There is no genuine issue requiring a trial on this issue.
[44] There is no evidence that the respondent has been inappropriately contacting Dakota’s doctors, dentists, health care providers, summer camp counsellors, or others involved with Dakota. The portion of the relief sought seeking an order restraining the respondent from contact with such individuals raises no genuine issue requiring a trial and is dismissed.
[45] In the circumstances, it is appropriate that Dakota hold all her own important documents, including but not limited to her Canadian passport, birth certificate, social insurance number, and health documents, and that only the applicant may apply for a renewal of such documents. On the evidence, there is no genuine issue requiring a trial on these issues.
[46] Dakota needs to travel for sports. She is entitled to attend vacations with the applicant and his family. The respondent’s conduct has interfered in her ability to do so. The respondent has had no parenting time with Dakota since 2021. There is no genuine issue requiring a trial to determine that the applicant should be permitted to travel with Dakota for any period of time not exceeding three weeks for the purpose of vacation and/or sporting events without the consent of the respondent.
[47] No child support is sought by the applicant. There are no child support arrears. There is no genuine issue requiring a trial with respect to child support and arrears.
Conclusion
[48] For the above reasons, I make the following orders:
a. the applicant father, Kyle Timothy McNaughton, shall have sole decision-making responsibility for the child Dakota Cassandra Parrish, born November 1, 2008;
b. Dakota’s primary residence shall be with the applicant;
c. any parenting time with the respondent shall be at Dakota's discretion and request;
d. an order restraining the respondent from contacting Dakota directly unless such contact is first initiated by Dakota. Should Dakota initiate contact and later request that it cease, the respondent shall restrain from further contact;
e. an order restraining the respondent from contacting Dakota's teachers and school officials;
f. Dakota shall hold all of her own important documents, including but not limited to her Canadian passport, birth certificate, social insurance number, health card, and health documents. The respondent is to provide all such information and documentation to the applicant’s counsel within 30 days;
g. only the applicant may apply for or renew any of Dakota’s important documents, including but not limited to her Canadian passport, birth certificate, social insurance number, and health documents, without requiring the consent of the respondent;
h. the applicant is permitted to travel with Dakota for any period of time not exceeding three weeks for the purpose of vacation and/or sporting events without the consent of the respondent; and
i. no child support arrears are payable by either party and unless a material change in circumstances arises, the applicant shall not seek child support payments from the respondent.
Costs
[49] If the parties cannot agree on costs, they may submit a bill of costs and make written submissions consisting of not more than two double-spaced pages in length, together with a bill of costs, any offers to settle and excerpts of any legal authorities referenced, according to the following timetable:
a. By the applicant on or before April 26, 2024;
b. By the respondent on or before May 10, 2024.
[50] If no submissions or written consent to an extension are received by the court by end of day May 10, 2024, the matter of costs will be deemed to have been settled.
M. Bordin, J.
Date Released: April 17, 2024