Court File and Parties

COURT FILE NO.: FC-13-FS048248-0001 DATE: 2024/02/01 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CHRISTOPHER FREDERICK SUCKERT, Applicant AND: WENDY LYNN SUCKERT, Respondent

BEFORE: Gibson J.

COUNSEL: Christopher Frederick Suckert, Self-Represented Applicant Shenae Williamson, Counsel for the Respondent

HEARD: January 29 and 31, 2024

Endorsement

Overview

[1] The Respondent Wendy Lynn Suckert (“the Respondent Mother”) and the Applicant Christopher Frederick Suckert (“the Applicant Father”) were married in 2007 and separated in 2013. Both parties currently live in Kitchener. They experience recurring difficulty communicating with each other.

[2] The Respondent Mother brings a Motion to Change the final Order of McLaren J. dated April 22, 2016, pertaining to the parties’ three children, Alexandra Lynn Suckert, born July 16, 2009, Olivia Marie Suckert, born February 14, 2012, and Samantha Wendy Suckert, born January 9, 2014. Pursuant to the Order of McLaren J., the parties share joint custody (now known as decision-making responsibility) of the three children, and the children reside primarily with their mother.

[3] Pursuant to the Order of McLaren J., which the parties continue to follow to date, the Applicant Father has the following parenting time: alternate weekends form Friday at 5:00 p.m. to Sunday at 5:30 p.m., to be extended to Monday at 5:00 p.m. on a long weekend; alternate Tuesdays in the week prior to the Applicant Father’s access weekend, from 4:00 p.m. to 6:30 p.m.; alternate Thursdays, the week following the Applicant Father’s access weekend, from 4:00 p.m. to 6:30 p.m.; and one week summer vacation in each year, with notice to be provided to the Respondent Mother by May 31st of each year, as to the week.

[4] Justice McLaren’s Order required the Applicant Father to pay child support of $979 per month based on the Applicant Father’s 2015 income of $50,922.22 pursuant to the Federal Child Support Guidelines. The child support arrangement has not been adjusted since 2016. Child support continues to be enforced through the Family Responsibility Office (“FRO”). The Order required the parties to share s.7 expenses, which were to be agreed upon in advance. The Applicant Father has not made any contribution to s.7 expenses for daycare or extracurricular activities, but he had paid orthodontic expenses in the amount of $6,600.

[5] The Respondent Mother seeks sole decision-making responsibility, an adjustment in child support, s.7 expenses, and an adjustment in the parenting time of the Applicant Father. The Applicant Father resists this.

Evidence

[6] The Respondent Mother claims that the Applicant Father refuses to take the children to their activities during his parenting time, including a graduation, school events and sports. She also asserts that the Applicant Father denies his consent to necessary medical procedures for the children. The Applicant Father asserts that the Respondent Mother denies him his parenting time.

[7] There are two Voice of the Child Reports prepared by the Office of the Children’s Lawyer. The first, dated March 25, 2022, was prepared by Clinical Investigator Todd Perreault and reflected the views of all three children. The second, dated January 30, 2024, was also prepared by Mr. Perreault and updated the first report regarding the views of Alexandra and Olivia.

[8] Alexandra is in Grade 9 and doing well. She is involved in the baking club at school. Olivia is in Grade 6 and doing well. Neither child had any worries or concerns about their parents’ homes. Alexandra would like to discontinue the Tuesday and Thursday visits, for a number of reasons, but extend the time on weekends. Olivia expressed the same preferences.

[9] The Respondent Mother gave evidence and provided detailed evidence regarding her income and s.7 expenses. She is currently on ODSP and does not work outside the home.

Issues

[10] The issue to be decided on this trial of the Motion to Change is:

1. Should the Motion to Change be granted in respect of decision-making responsibility, parenting time, s.7 expenses and child support?

Law and Analysis

[11] In McLeod v. Marsh, 2023 ONSC 1026, Henderson J. addressed the factors to be considered in a similar case at paragraph 11:

[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.

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. 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, 2000 ONSC 22571; 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, 2003 ONCA 3320. 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. 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.

[12] 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. I am satisfied that there has been a material change in circumstances likely to affect the best interests of the child, because of the inability of the parties to co-operate, the Applicant Father’s lack of willingness to prioritize the development and interests of his children in extracurricular activities, and the changed perspective of the children. This change has arisen since the making of the current order. It was not a change that was either foreseen or could have been reasonably contemplated by the judge who made the previous order. The change is substantial and continuing.

[13] I conclude that I have the ability to vary a final order but that the threshold is high.

[14] In this circumstance, I must move on to the second stage and consider on a fresh inquiry the best interests of the child and whether to vary the original order. In this, there is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. At this stage, the best interests’ test is the only test to be applied. The court must ascertain the child’s best interests from the perspective of the child rather than the parents. The child should have maximum contact with both parents if it is consistent with the child’s best interests.

[15] Shared parenting is appropriate and viable only where the parties can communicate and co-operate effectively. That is notably absent in this case.

[16] Where appropriate, and the children are sufficiently mature, the expressed wishes of children should be accorded consideration. The older two children have clearly very recently indicated their wish that the parenting times should change in order to allow them the freedom to experience and explore more extracurricular activities as they grow older and more independent.

[17] The Applicant Father did not constructively engage in this trial. He clearly harbours a sense of grievance. He was sullen and strongly conveyed his disdain for the court and for the trial process.

[18] The Applicant Father did not introduce any evidence in this trial, and engaged in very limited cross-examination of the Respondent Mother. He has not updated his financial disclosure in years, and has not provided any evidence regarding his current place of employment or his income.

[19] He did not submit any jurisprudence to assist the court in its determination, and did not advert to any principles of law.

[20] Moreover, it is obvious that courts can only make findings of fact, and determine appropriate orders, when they are provided by the parties with an evidentiary basis to do so. The Applicant father has not placed any evidence before the court.

[21] In his brief submissions, the Applicant Father asserted that he had been “denied equality” before the courts over the past 11 years, because he has not had equal parenting time with his children, and that his situation amounted to “borderline slavery,” which he described as “sexual discrimination.” He suggested that the degree of expectations placed on fathers constituted an intolerable experience for most men. His position seems to be that “equality” equates with equal allocation of parenting time. His position was essentially that parenting time should be shared between the parties on a one-week on, one-week off basis, and that it would be in the children’s best interests for such an arrangement to be put in place because spending more time with him would “teach the children resilience,” and “an ability to cope with things beyond their control”.

[22] There is no merit to the Applicant Father’s submissions in this regard. Children are not property to be shared between the parties. In the exercise of their discretion, courts are obligated to assess what will be in the best interests of the children. This is, and must be, the sole governing principle. 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.

[23] The Applicant father has not provided any evidence of his current income and place of employment. Refusing to constructively participate in the litigation process, including by refusing to make required financial disclosure, will not result in paralyzing the court’s ability to make appropriate and necessary orders. Based on the last data available, his income will be imputed at $51,590.97, and the corresponding amount of child support ordered.

[24] In order to ensure that the Applicant Father provides the required financial disclosure going forward, each party will be required to make timely disclosure to the other of their annual income tax returns and CRA Notices of Assessment.

[25] I conclude that it would be in the best interests of all three children for the Respondent Mother to have sole decision-making authority, for there to be an adjustment in parenting time, and for adjustments to be made in the child support and s.7 expenses obligations of the Applicant Father.

[26] The Tuesdays and Thursdays parenting time of the Applicant Father will be deleted. In order to foster the opportunities for development of the children as they grow older, the impediment to their participation in activities posed by the Applicant Father’s unwillingness to allow them to do so during weekdays will be removed. A defined and regular, if modest, contribution by the Applicant Father to the s.7 expenses will enhance the prospects for their participation.

[27] The parenting time allocated to the Applicant Father on weekends will be extended in time, and an additional week of summer time will be added.

[28] Accordingly, the Respondent Mother’s Motion to Change the Order of McLaren J. dated April 22, 2016 will be granted.

Order

[29] The Court Orders, on a final basis, that:

1. The Respondent Mother Wendy Lynn Suckert shall have sole decision-making responsibility regarding the three children, Alexandra Lynn Suckert, born July 16, 2009, Olivia Marie Suckert, born February 14, 2012, and Samantha Wendy Suckert, born January 9, 2014 (“the children”). Notwithstanding this, the Respondent Mother shall promptly update the Applicant Father regarding any major developments concerning the children’s health, education, religion or welfare;
2. The three children shall primarily reside with the Respondent Mother;
3. Commencing February 1, 2024, the Applicant Father shall pay child support to the Respondent Mother in respect of Alexandra Lynn Suckert, born July 16, 2009, Olivia Marie Suckert, born February 14, 2012, and Samantha Wendy Suckert, born January 9, 2014, of $1,011 per month, on the first day of each month, pursuant to the Federal Child Support Guidelines, based on an imputed income of $51,590.97;
4. Arrears of child support are fixed at $2,722.00;
5. The Applicant Father shall pay $50 per month per child for s.7 expenses, for a total of $150 per month for the three children, to be provided on the first day of each month;
6. The Applicant Father shall have parenting time with the three children as follows: a. Alternate weekends commencing Fridays at 4:00 p.m. to Sundays at 6:00 p.m.; b. Two non-consecutive weeks of summer vacation each year, with notice to be provided to the Respondent Mother by May 31st of each year as to the week. If the parties are not able to agree, then the weeks shall be the last week of July, and the last week of August; c. The Applicant Father may call the children on their birthdays and on holidays. The children may call their father anytime they wish; d. Such other time as the parties may agree in advance in writing; e. The parties shall only communicate with each other by email, text or a family communication app; f. Parenting time exchanges to take place at a public location such as a McDonald’s or Tim Hortons restaurant; and g. Christmas holiday parenting time as per the Order of McLaren J. in paragraph 3(f);
7. The parties shall exchange copies of their individual income tax returns and CRA Notices of Assessment by August 1st of each year following the taxation year; and
8. Unless this Order is withdrawn from the Director’s office of the Family Responsibility Office, it shall be enforced by the Director and any amounts owing under the Order shall be paid to the Director, who shall pay them to the person to whom they are owed.

Costs

[30] 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.R. Gibson J. Date: February 1, 2024