Preston v. Markle, 2011 ONCJ 641

Toronto (North York) Registry No. D24535/04 DATE: 09·V·2011 CITATION: Preston v. Markle , 2011 ONCJ 641 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) WILLIAM PRESTON ) ) ) ROBERT LEPORE, for the APPLICANT ) APPLICANT ) ) - and - ) ) ANGELA MARKLE RESPONDENT ) BRAHM D. SIEGEL, for the RESPONDENT ) ) ) ) ) ) ) ) HEARD: MAY 5, 2011 JUSTICE S.B. SHERR: REASONS FOR DECISION Part One – Introduction [ 1 ] The respondent (the mother) has brought a motion for

summary judgment to dismiss the applicant’s (the father) motion to change custody of the parties’ child, Heidi, age 10, to his care. She also asks that the father be prevented from bringing any further motions in this case regarding parenting issues without the court’s permission and costs. She withdrew her request for other relief sought in her notice of motion. [ 2 ] The father seeks the dismissal of the mother’s motion, has moved for an order requesting the Office of the Children’s Lawyer to represent the child, and has asked for costs.

[3] I reviewed and relied upon the affidavits of the mother sworn on January 25, 2011 and April 13, 2011 and the affidavit of thefather sworn on March 26, 2011, as well as the assessment of Dr. Raymond Morris, dated March 16, 2009, which was conductedpursuant to

section 30 of the Children’s Law Reform Act during the application phase of this case. This report was attached as an exhibitto affidavits from both parties and was extensively relied upon by both of them. Part Two – The Law [4] Rule 16 of the Family Law Rules (the rules) permits a party to make a motion for

summary judgment. The following sub-rules inrule 16 are relevant to this case: • When Available 16.

(1) After the respondent has served an answer or after the time for serving an answer has expired, a party maymake a motion for

summary judgment for a final order without a trial on all or part of any claim made or any defencepresented in the case. • Evidence Required •

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is nogenuine issue requiring trial. • Evidence of Responding Party •

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion maynot rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuineissue for trial. • Evidence Not From Personal Knowledge •

(5) If a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusionsunfavourable to the party. • No Issue for Trial •

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly. [5] The case law on

summary judgment was nicely summarized by Justice Ruth Mesbur in Native Child and Family Services ofToronto and D.C. 2010 ONSC 1038, where she wrote in paragraphs 4-6: [4] This motion is framed under rule 16 of the Family Law Rules. It is common ground that on a motion for

summary judgmentsuch as this, the court should not be assessing credibility, weighing the evidence or finding the facts. Instead, the court’s role is narrowlylimited to assessing the threshold issue of whether a genuine issue exists as to material facts requiring a trial. Evaluating credibility,weighing evidence and drawing factual inferences are all functions for the trier of fact. Bedard v. Huard (2000) (ONSC), O.J. No 969. [5] The onus is on the moving party to persuade the court that there is no genuine issue for trial. If there is not, the court isrequired to make a final order and grant

summary judgment. F.I. v. K.F., 2000 CarswellOnt 455 (ONSCJ). When the court looks atwhether there is a genuine issue for trial, the question is not whether there is any evidence to support the responding party’s position, butrather whether the evidence is sufficient to require a trial. Children’s Aid Society of the County of Dufferin v. J.R.,

(2002) CanLII 45515(ONCJ). [6] Rule 16 (4.1) requires that a responding party, however, may not rest on mere allegations or denials, but shall set out in anaffidavit or other evidence, specific facts showing there is a genuine issue for trial. [6] The court also has to consider that the motion for

summary judgment is brought within the context of a motion to change. Thereis not an automatic entitlement to a trial in a motion to change. In I. v. W. 2011 ONSC 2021 Canlii, Justice George Czutrin upheld onappeal a decision by Justice Geraldine Waldman to dismiss a motion to change without a trial and quoted paragraph 31 of her reasons fordecision where Justice Waldman wrote: [31] I am satisfied, having reviewed the evidence, that a trial of the issue of father’s access to the child is not required. There is no issueof credibility that needs to be resolved through viva voce evidence.

The court does not require examination and cross-examination toallow for a full exploring of the evidence and issues before the court. The affidavit materials filed, particularly by father, are extensiveand he has carefully documented his concerns. The evidence supported each party’s position and each party had an opportunity to makesubmissions to the court and to explain his or her position fully. Subrule 15(26) of the Family Law Rules, O.

Reg. 114/99, as amended,allows the court to give directions including directions for a trial if “the court feels that the motion cannot be adequately dealt withbecause of the material filed, because of the matters in dispute or for any other reason.” Under rule 15, a motion to change a final ordershall be dealt with on the basis of the documentary evidence filed, unless the court is of the opinion that it cannot properly be dealt within this fashion. See M. v. O., 2006 ONCJ 176 , 2006 ONCJ 176 , 2006 ONCJ 176, 148 A.C.W.S. (3d) 410, [2006]W.D.F.L. 3201, [2006] O.J. No. 1955, 2006 Cars​well​Ont 3019 (Ont. C.J.).

The onus is on the applicant father to show that a trial isneeded. In this particular case, while this is a motion to change, the issue to be determined, father’s access, is actually the same issue

that has been central to this case from virtually the beginning. Given this history, along with the evidence filed and submissions made, Iam satisfied that a trial is not required. [7] Where there are material facts in dispute that require the court to observe cross-examination of the parties and determinecredibility to justly determine the issues, a trial of the issue should generally be ordered. See Ierullo v. Ierullo, 2006 Cars​well​Ont 5887(Ont. C.A.) and Burisch v. Gosal, 2007 Cars​well​Ont 5227 (Ont. C.A.). [8] The motion to change is framed under sub-section 29(1) of the Children’s Law Reform Act which reads as follows: Order varying an order 29.

(1) A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontariounless there has been a material change in circumstances that affects or is likely to affect the best interests of the child. [9] The Ontario Court of Appeal in Persaud v Garcia-Persaud., 2009 ONCA 782 sets out the need to first find a material change incircumstances before varying a custody or access order, at paragraph 3 as follows: As this court has made clear, jurisdiction to vary a custody and access Order is dependent on an explicit finding of a material change incircumstances since the previous Order was made.

If an Applicant fails to meet this threshold requirement, the inquiry can go no further:see Litman. v. Sherman (2008), 2008 ONCA 485 , 52 R.F.L. (6th) 239 (Ont. C.A.). The matter is jurisdictional and a court mustmake a finding of a material change of circumstances even when, as here, both parties request a variation. [10] The Supreme Court of Canada in Gordon v. Goertz (SCC), [1996] 2 SCR 27 found that the change incircumstances must not have been foreseen or reasonably contemplated by the judge who made the original order.

The change must be tothe condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child. [11] The party seeking the variation bears the onus of demonstrating a material change that will materially affect the child. Thechange must have altered the child’s needs or the ability of the parent to meet those needs. The last order is presumed to be correct.Wiegers v.Gray, 2008 SKCA 7 , 2008 CarswellSask 10 (C.A.). Part Three – History [12] The history of this case is not contentious and will be set out in the paragraphs that follow. [13] The father is 45 years old.

The mother is 41 years old. Heidi is their only child. [14] The parties were never married. They lived together from June of 1996 until they separated in 2004. [15] The parties have frequently litigated over Heidi since then. [16] On September 14, 2004, the parties consented to a final order in this court. They agreed to share parenting time with Heidi and toan order of joint custody. [17] The parties subsequently reconciled, but separated again in October of 2005. They have remained separate and apart since thattime. [18] In August of 2007, the father was charged with assaulting the mother.

This charge was eventually dismissed. [19] On September 4, 2007, the mother commenced a fresh application for custody. The parties continued with a week on/week offparenting arrangement. [20] The parties agreed to an assessment being conducted by Dr. Raymond Morris, a registered psychologist, pursuant to

section 30 ofthe Children’s Law Reform Act. Details from that assessment will be discussed below. In brief, Dr.

Morris, in his assessment report datedMarch 16, 2009, recommended that the mother be the sole custodial parent of the child and that the father have access to her on alternateweekends, on one night during the week, with holidays to be shared. [21] In May of 2009, the father became seriously ill, was hospitalized until September of 2009, and was unable during that time tocare for the child. [22] An informal arrangement was entered into after the father left the hospital, where the child spent Tuesday and Thursdayafternoons and alternate weekends with the father.

The father, as he was feeling better, soon asked the mother to restore the sharedparenting agreement. The mother took the position that she would not agree to restore the week on/week off arrangement without betterevidence of the father’s medical condition. On December 4, 2009, the father brought a motion for contempt of the existing order. [23] The contempt motion was adjourned and the case was sent to trial by the case management judge.

In February of 2010, theparties informally agreed that the child would spend alternate weekends and two overnights each week with the father. [24] After settlement negotiations, the parties resolved the parenting issues on a final basis. On consent, Justice Robert Spence madean order on April 19, 2010 that the parties have joint custody of the child, with primary residence of the child to the mother. A detailedparenting

schedule was ordered, the main elements providing the father with alternate weekend access, one overnight each week and anequal sharing of holidays.

[25] The parties adjourned the trial of the child support issue. A temporary child support order is in place and the mother has hired abusiness valuator to assess the father’s income. That issue is not before the court on this motion. [26] On December 17, 2010, the father brought his motion to change, seeking custody of the child and an order that the mother haveaccess to the child on alternate weekends, one overnight during the week, with holidays to be divided. Part Four – The father’s position [27] The father argues that the following material changes in circumstances have taken place since April 19, 2010:

a) The father claims that the child’s views and preferences have changed. Dr. Morris reported that Heidi wished to live with hermother and visit with her father. The father claims that the child was devastated to lose the second overnight with him each week, thatshe wants to spend more time with him and no longer wants to live with her mother. He says that he agreed to reduce his visitation fromtwo overnights per week to one overnight per week so that he could obtain the order for joint custody.

b) He claims that the mother and her partner are abusing alcohol and drugs to the point where it is adversely affecting the child’swell-being.

c) He claims that the child is bored in the mother’s home and is often left on her own.

d) He claims that the child is suffering considerable stress in the mother’s home which is affecting her ability to sleep and function.

e) He claims that the mother is frustrating his contact with Heidi while she is with her. Part Five – Analysis 5.1 The father’s deficient evidence [28] The father has not met his onus of establishing a material change in circumstances that would affect or is likely to affect the bestinterests of the child. This case can be disposed of based on the material filed. There is no need for a trial of this issue. [29] A change in a child’s views and preferences can constitute a material change in circumstances.

However, for the reasons set outbelow, I am not persuaded that Heidi’s views and preferences have changed and even if they have, they do not constitute a materialchange in circumstances that warrant changing the existing order. [30] It is clear from the material filed that the father is dissatisfied with the agreement that he entered into and wants a do-over. Aftersix years of litigation, he didn’t wait even 8 months before trying to change the agreement.

He claims that he did not consult with thechild before agreeing to reduce his mid-week access to one overnight each week and despite his best efforts the child is highlydissatisfied with the parenting plan that he agreed to. [31] It is noteworthy that the parties made access agreements after the assessment that provided for more access than Heidi had toldDr. Morris that she wanted. Heidi had told Dr. Morris that she only wanted alternate weekend access (see: pg. 29 of his report). She wasnot seeking mid-week visits at that time.

Yet the parties agreed that it was in her best interests to have mid-week access twice each weekbefore the final order and to reduce it to one time each week on a final basis. Heidi did not make, and should not have been responsiblefor making, these decisions. [32] Even if the court accepted that Heidi wanted two overnights each week (which is not necessarily the case since there isabsolutely no evidence corroborating this) this is not the foundation for a finding that there has been a material change in circumstances.The reduction of the mid-week visits was a modest adjustment to the pre-existing schedule.

The existing court order still provides forconsiderable time between Heidi and her father. It was also foreseeable that the child might have some objection to the schedule. Theagreement was a compromise by both parents with the hope that it would insulate the child from further litigation. The father obtained asignificant benefit in the agreement, by being awarded joint custody notwithstanding the recommendation of Dr. Morris. [33] The evidence provided by the father about Heidi’s dissatisfaction with her present circumstances is seriously deficient. He reliessolely on what he says Heidi has told him.

This was virtually all hearsay evidence and in the circumstances of this case, self-serving andunreliable. I was struck by the lack of detail and specificity of these allegations. [34] Sub-rule 16 (4.1) of the rules makes it clear that the father cannot rest on mere allegations and must put his best foot forward.There was considerable opportunity for the father to properly provide relevant and probative evidence on these issues. Instead, he choseto rely on hearsay evidence attributed to the child.

The father had the opportunity to obtain evidence from collateral sources that mighthave corroborated what he says the child has told him. He could have obtained evidence from her teachers, a counselor that the child isseeing at school, neighbors or friends. The Children’s Aid Society of Toronto (the society) interviewed Heidi with respect to hisallegations about substance abuse in the mother’s home. He could have provided the court with an affidavit from the society worker ornotes and records from the society about the child’s allegations.

No evidence of this nature was provided to the court. [35] If the father is going to rely on hearsay evidence, he has the same obligation as he would have at trial to have it admitted andgiven weight. He has the onus to establish that the hearsay evidence is supported by evidence of necessity and reliability. See:Children’s Aid Society of Hamilton v. M.N. [2007] CarswellOnt 24533 (SCJ) at par. 30; Ward v. Swan (ON SC),2009 CarswellOnt. 2435 (SCJ) at par.14. He did not establish either branch of this test in his evidence.

In fact, the evidence filed supportsthe opposite conclusion- that this evidence is not reliable or independent. It is noteworthy that the father attributed almost identicalstatements to Heidi during the assessment process which were either not corroborated or contradicted by the child (see: Pg. 29 of Dr.Morris’ report). Pursuant to sub-rule 16 (5) of the rules, I draw conclusions unfavorable to the father with respect to this evidence. I havetreated these statements as bald, unsupported allegations and unreliable. A trial is not required on this issue.

[ 36 ] The father’s evidence regarding the mother’s alleged current substance abuse was also deficient as, once again, it is based solely upon what he claims Heidi has told him. This evidence was deficient in specificity and reliability. The mother readily admits that she used to have a substance abuse problem. She deposed that she took treatment and has remained sober for over five years. She discussed this issue with Dr. Morris. This is not new information. The father raised his concern about the mother’s substance abuse as a basis for granting him custody during the assessment, but did not provide Dr.

Morris with any corroborative evidence of this concern (see: pg. 31 of the report). The father had full knowledge of the mother’s substance abuse history when he entered into the final agreement in April of 2010. [ 37 ] If the father could have provided any reliable corroborative evidence of a current substance abuse issue adversely affecting the mother’s parenting, this court would have ordered a trial of the issue. The father reported this issue to the Children’s Aid Society of Toronto who investigated his allegation.

Their letter to the mother dated December 30, 2010 is attached to the mother’s first affidavit. The society wrote to the mother that the protection concerns reported (about misuse of alcohol and marijuana) were not verified. They closed their file and expressed no protection concerns. No evidence was provided from third parties about the mother’s alleged substance abuse. She has worked full-time for several years, has had a steady partner, is involved with girl guides and is primarily parenting a child who is performing well at school.

A trial is not required on this issue. [ 38 ] The father provided no independent evidence that Heidi is emotionally suffering in the mother’s home, although he had ample opportunity to obtain such evidence. Once again, he solely relies on statements that he claims Heidi made to him. The father unilaterally obtained a counselor for the child at the school without first consulting the mother as required. There is no evidence from the counselor supporting the father’s allegation. There is no evidence of Heidi experiencing emotional turmoil from anyone at her school.

The child is involved in many activities, yet there is no evidence from any of the adults who see her at these programs that she is struggling. [ 39 ] If Heidi is under any stress this would be understandable given the constant struggle between her parents. However, this does not create a material change in circumstances that would permit the father to change the existing order.

There is no independent and reliable evidence indicating that any stress that Heidi is under is due to the mother’s parenting- to the contrary, the evidence indicates that such stress would likely be due to the pressure that the father is placing on Heidi by putting her in the middle of the conflict, a concern previously raised by Dr. Morris (see paragraph 44 below). [ 40 ] I draw an unfavorable conclusion against the father due to his reliance on hearsay evidence to support his allegation that Heidi is suffering emotionally in the mother’s home.

A trial of this issue is not required. [ 41 ] The father’s claim that Heidi is bored at times in her mother’s home was an issue he raised with Dr. Morris (see: page 18 of the report). Again, the evidence to support this allegation is deficient. However, even if Heidi has made this complaint, the court notes that the mother works full-time and has to juggle work and parental responsibilities. She is involved with girl guides and is in contact with the school. The child is performing well. There is no reliable evidence that she is not being a responsible parent.

This allegation does not constitute a material change in circumstances justifying a change to the existing order. [ 42 ] While the father made several bald and unsubstantiated allegations, the mother provided detailed evidence, often with corroboration, refuting several of his allegations. The child’s most recent report card shows that Heidi is an excellent student. There is no indication in the report card that she is struggling emotionally. The father complains that the child is being prevented from calling him while she is with her mother.

Yet, telephone records provided by the mother demonstrate numerous telephone calls to the father while Heidi is in her care. In October of 2010, the father phoned the police reporting that the mother and her partner were at a restaurant and drinking excessively, yet when the police investigated, the mother was at home. The police closed the matter. The father made a bald allegation minimizing the mother’s involvement in the child’s activities. Yet, in paragraph 12 of her second affidavit, she sets out specific evidence of involvement with the child. 5.2 Dr.

Morris’ report [ 43 ] The parties both filed and relied upon significant portions of Dr. Morris’s report. Neither contested the findings in his report. Dr. Morris’ report provides helpful context to evaluate if there has been a material change in circumstances and if there is a triable issue. [ 44 ] Dr. Morris made the following observations about the father: a) “The first

section of his interviews also revealed emotionality in relation to his concerns about Heidi at the hands of her mother and the degree to which he and Heidi mean to one another. At the same time, he revealed extensive sensitivity towards perceived criticism….” (pg. 13) b) “..his emotionality rose quickly and consisted of a wide range of mood from feeling hurt to anger. At times he got lost in detail he provided, would run on a tangent and would have to be returned to the topic at hand. He often cried in relation to how he felt he was being treated badly by others, particularly women.

His descriptions of others were threaded with hyperbole or exaggerated descriptions of a demeaning nature particularly in relation to members of her family.” (pg. 14) c) “The problem that exists is that in addressing all matters relevant to Heidi, Mr. Preston has launched a scathing attack on Ms. Markle’s character and ability to parent as well as members of her family and support system [1] which does not bode well for flexibility nor his ability to facilitate a happy and healthy relationship between the child and the mother, a significant criteria in relation to the best interests of children found in

Section 24 of the Children’s Law Reform Act.” (pg. 30) d) “…Mr. Preston was still experiencing unresolved feelings in relation to the end of the relationship. He was angry over her termination of their relationship and demeaning of her personally as well as members of her support system. She on one hand was able to provide some balance in her report, whereas he was entirely unable to do so, blaming all of his concerns regarding her character and inability to parent on her upbringing.” (pg. 28) e) “It was quite evident that Ms.

Markle had an in depth understanding of Heidi in all regards demonstrated in her provision of rich detail in relation to Heidi’s developmental history including peer relationships, academic progress and the child’s adjustment to the

current circumstance for example. Mr. Preston was able to provide minimally adequate information and appeared to be guessing at times, particularly in relation to developmental milestones.” (pg. 28). f) “Both described a close relationship with Heidi. Ms. Markle’s description of such as well as her approach to parenting and methods of child management were well within the norm, spontaneous and balanced. Mr.

Preston’s description of his relationship of this relationship with Heidi was all-encompassing, indicating the significant degree to which he needed the child in his life, not just to meet her needs and facilitate her growth, but quite clearly to provide her with the relationship, nurturance, love and affection that he did not receive from his family of origin.” (pg. 29)

g) The father could not understand that he was inappropriately interrogating Heidi and became upset when challenged about this (pages 13 and 22). Dr. Morris writes at page 22: He spent some time on the child’s need to be primarily with him and the nature of their very close relationship as opposed to that of Ms. Markle. He theorized that her preference was not about missing her mother or being with her mother, but rather not having the structure and participation that he provides. He said, “I have talked with her about it, teasing it all out of her, it all alludes to that”.

Yet, could not at any time accept the reflection that a lot of their discussion amounted to his attempting to gain as much information as he can from her in order to understand what was going on in the child’s life while in the company of her mother.

He could not accept the descriptive term interrogate but felt it was entirely proper to be honest with his child and in her best interest for him to find out what impinged on her life. h) “In fact there is evidence that his personal issues related to abandonment, rejection and a lack of trust in others has predisposed him to invest in his relationship with Heidi in a way that would appear to have estranged her in some ways from himself…..Again, there is concern that Mr.

Preston’s inability to separate his own needs out from those of the child will not likely allow him to facilitate a happy and healthy relationship between Heidi, her mother and support system.” (pg. 30) [ 45 ] Dr. Morris found that Heidi preferred to live with her mother (pg. 29). [ 46 ] Dr. Morris also reported that Heidi expressed this preference despite the fact that the father had told him that Heidi says that she wishes to live with him, does not enjoy going back to her mother, feels neglected in the care of her mother and does not like her mother’s current partner Fred.

The similarity between these statements and the allegations made in this case is striking. Dr. Morris wrote on page 29: Again, as a bottom line, we find that Mr. Preston’s concerns regarding relationship and the child’s preference have not been supported. [ 47 ] Lastly, Dr. Morris cautioned the father about exposing the child to his views about the mother, asking questions and discussing matters that have the tendency to put the child in the middle of parental dispute.

He wrote on page 30: Heidi must be extricated from the midst of parental conflict. 5.3 Analysis of the affidavits filed [ 48 ] The events that have taken place since April 29, 2010 reinforce Dr. Morris’s findings and demonstrate that there has not been a material change in circumstances since the order was made. The father’s attitude and behaviour towards the mother since the final court order was made have not changed. The potential risks to Heidi’s emotional welfare described by Dr. Morris remain very much alive. [ 49 ] The father’s affidavit was informative for the court.

He spent a large portion of his affidavit setting out past grievances against the mother, going back to 2002. Much of his evidence was a rehash of previous attacks on the mother. Little of this evidence was material to establishing a material change in circumstances. However, it was relevant in confirming to the court that he remains focused on his anger towards the mother, lacks respect for her and her role as Heidi’s co-parent and continues to demean her, her family and supports. This evidence corroborates the findings made by Dr. Morris in his report.

The father, in his affidavit, accepts absolutely no responsibility for the continuation of hostilities between the parties or any of the stress that Heidi might be experiencing. [ 50 ] What was also informative for the court was a series of emails sent by the father to the mother. The father did not deny sending the mother these emails. Counsel for the father described them as inappropriate. This court finds that to be a mild

interpretation. The content of these emails are demeaning, abusive, intimidating and full of vitriol. They reveal considerable anger and a total lack of respect of the mother and her role as Heidi’s parent. These emails are attached as exhibits H and I to the mother’s first affidavit and don’t need to be repeated in this decision-they speak for themselves. These emails confirm Dr. Morris’s observations about the father’s destructive attitudes about the mother and the emotional risks they pose to the child.

These abusive emails have stopped since the mother’s counsel intervened and advised the father that he would seek a restraining order if they continued. [ 51 ] The mother provided considerable evidence in her material setting out other concerning behavior by the father. Since this is a motion for

summary judgment, I will not rely on contentious evidence - only evidence that the father did not dispute or only baldly denied. The mother provided evidence that the father arranged a school counselor for the child without her consent, signed the child up for swimming without her consent and refused to let him see the child on Mother’s Day despite the court order. He returned the child home 3.5 hours early after the summer holiday. The mother wasn’t home and he just left Heidi there. Heidi went to a neighbor’s home. She reached her father who picked her up.

Instead of returning the child home at the proper time, the father emailed the mother that Heidi was safe and that he would keep her for the night. This was not responsible behavior. [ 52 ] By contrast, the mother has continued to take a measured approach with the father since the receipt of Dr. Morris’s report. She was in a very strong position to assert a claim for sole custody based on this report, but compromised and agreed to a joint custody order. Based on the evidence filed on this motion, she was probably in a position to claim a material change in circumstances and claim sole custody of the child.

Yet she has chosen not to do, willing to live with the agreement. She just asks the court to end the litigation. [ 53 ] The level of anger and disrespect exhibited by the father remains of considerable concern to the court. A review of his affidavit indicates that he is discussing the parenting issues with Heidi in considerable detail. It is inconceivable that the father is not

communicating his attitudes to Heidi and placing her under tremendous pressure to fulfill his own needs. He is exhibiting this behavioreven when he has been aware that inappropriately involving Heidi in the litigation has been an issue since the receipt of Dr. Morris’report. This informs the court that his anger is so deep-rooted that he can’t control his behavior. It confirms Dr. Morris’ observation thatthe father has limited insight into Heidi’s developmental needs, in particular her needs to feel safe and secure, to have permission to loveboth parents and be insulated from conflict.

This is placing the child in a very difficult position and in a loyalty conflict between herparents. It creates unreasonable pressure upon her to please her father. It also poisons the reliability of any evidence that the fatherattributes to Heidi. [54] It is inconceivable in the face of this uncontroverted evidence that a court would grant custody of the child to the father. Heshould consider himself fortunate that the mother has not sought sole custody.

A trial of this issue is not required. 5.4 The request to appoint the Office of the Children’s Lawyer [55] The motion by the father to appoint the Office of the Children’s Lawyer is without merit. Many of the reasons have already beendiscussed above. The father has not established a material change in circumstances to justify this further intrusion into the child’s life andthe continuation of this litigation.

Heidi has already been placed in the middle of this litigation process more than she should have been.Appointing the Office of the Children’s Lawyer would delay resolution and continue to put her front and centre in the middle of thisconflict. [56] An important consideration in determining whether or not to appoint the Office of the Children’s Lawyer is that this is a motionto change, not an original application. Further, it is a motion to change that has been brought very shortly after a final consent order,prolonged litigation and where Heidi participated in a comprehensive assessment by Dr. Morris.

The Office of the Children’s Lawyershould not be used as a vehicle to buttress the father’s deficient evidence on his motion to change. Further intervention is not warranted. [57] The intensity of the father’s anger, together with Dr. Morris’ findings creates a serious concern for the court about the pressurethat Heidi is under to please him. Appointing the Office of the Children’s Lawyer would likely increase that pressure upon her. [58] Lastly, it is not up to Heidi to determine the parenting plan. The parents appeared to recognize this when they entered into thefinal order.

Even if Heidi was able to independently express that she wanted to spend more time with her father (or primarily reside withhim), this would not constitute a material change in circumstances at this time. She is 10 years old. Her parents just agreed on acomprehensive parenting arrangement on April 29, 2010. This plan ensures considerable time between Heidi and her father. Theindependent evidence indicates that Heidi is doing well in school and in the community. It is not in the child’s best interests to make theorder requesting the Office of the Children’s Lawyer to act on her behalf.

The father’s motion for this order is dismissed.

Part Six – Motion to prohibit further motions by the father without the court’s permission [59] The mother seeks an order prohibiting the father from bringing further motions with respect to parenting issues without thecourt’s prior permission. [60] Sub-rule 14 (21) of the rules reads: NO MOTIONS WITHOUT COURT’S PERMISSION – If a party tries to delay the case or add to its costs or in any other way toabuse the court’s process by making numerous motions without merit, the court may order the party not to make any other motions inthe case without the court’s permission. [61] This provision applies to change motions by virtue of rule 15(27). [62] This sub-rule has been applied in high conflict cases where significant litigation has taken place.

See: Fish v. Leung, 2006 ONCJ112; Geremia v. Herb (No.5), (ON SC), [2008] O.J. No.1716 (SCJ). [63] An order of this nature is a serious restriction on a parent’s access to the court and should be reserved for cases where there havebeen several motions brought without merit. It is designed to prevent an abuse of the court’s process. A review of the court historyindicates that this case does not yet reach that level. There is no evidence that either party acted in bad faith in the litigation that led tothe April 19, 2010 consent order.

The original action resulted in a resolution that provided both parents with generous involvement withthe child. I cannot make a finding that the contempt motion brought by the father in December of 2009 was without merit. The fatherwas entitled to a mechanism to determine if the existing court order should be enforced. This motion to change is the first motion that thefather has brought that has been ill-advised. It is not a sufficient foundation to make the requested order. The mother’s request for thisrelief is dismissed.

Part Seven – Conclusion [64] There are several messages being sent to the father in this decision. He needs to address his feelings of anger towards the motheras they are destructive and have the potential to emotionally harm Heidi, if they aren’t doing so already. I strongly urge him to seek

professional treatment to address these issues. He must stop involving Heidi in this litigation. Lastly, he should end this litigation.

While this court is not preventing him from bringing any further motions, he should be extremely cautious before embarking again on this path. [ 65 ] This court further finds that there are no triable issues and that the father has no reasonable chance of success if this matter went to trial. [ 66 ] This court finds that this case can be determined on the basis of the material filed on the motion to change, that there aren’t material facts in dispute that require the court to observe cross-examination of the parties and determine credibility to justly determine the issues, and that a trial of an issue is not required pursuant to sub-rule 15 (26) of the rules. [ 67 ] This court finds that the father has not met his onus of establishing a material change in circumstances. [ 68 ] The court makes the following final orders:

a) The father’s request to appoint the Office of the Children’s Lawyer is dismissed.

b) The mother’s motion for

summary judgment is granted.

c) The father’s motion to change is dismissed.

d) The mother’s motion to prevent the father from bringing any further motions without the court’s permission is dismissed.

e) If the mother seeks costs, she is to serve and file written costs submissions on or before May 20, 2011. The father will then have until June 1, 2011 to serve and file any written reply. The submissions should not exceed three pages, not including any offer to settle or bill of costs. These submissions should be delivered to the trial coordinator’s office. [ 69 ] The parties are to contact the trial coordinator’s office within 10 days to arrange a case conference date before me to deal with the outstanding child support issue. ___________________________ Justice S.B. Sherr Released: May 9, 2011