M. v. P., 2011 ONCJ 840

Elliot Lake Registry No. 28/10 DATE: 2011·XII·16 CITATION: M. v. P. , 2011 ONCJ 840 ONTARIO COURT OF JUSTICE BETWEEN: ) ) J.M. ) ) Douglas B. Kearns, for the applicant father, J.M. ) — AND — ) ) L.P. ) ) T. Frederick Baxter, for the respondent mother, L.P. ) ) ) HEARD: 18 November 2011 For previous proceedings, see M. v. P. , 2011 ONCJ 816 , [2011] O.J. No. 6126, 2011 Cars​well​Ont 15387 (Ont. C.J., 13 September 2011), per Justice John Kukurin. [ 1 ] JUSTICE J.

KUKURIN:— This is a decision on a motion (at tab 3, volume 2) brought by the applicant father in this high-conflict custody-and-access case. [ 2 ] The claim of the father in this motion is for an order requiring the “access” of the respondent mother to the children [S1] (7) and [S2] (6) to take place at the Supervised Access Facility (SAF) at Elliot Lake. [ 3 ] In reality, the motion of the father seeks to vary an interim order made in this case by me dated 30 September 2011. [1] That order terminated all prior interim orders relating to custody and access made in this case and became the only operative order in effect. [ 4 ] The order of 30 September 2011 does not award, nor does it use terminology of “custody” or “access”.

It confirms that the children [S1] and [S2] have their primary residence with the father and have their secondary residence with the mother. Moreover, it does so on an i nterim basis only , pending a final decision on the application in this case. [ 5 ] The intent of the order of 30 September 2011 was to enable these two children to share their time with both the father and mother. Moreover, it was meant to establish specific times when the children would be with each parent and how they would be exchanged.

Because of the history of problems between these parties relating to these two children, there was also included a clause prohibiting each of them from disparaging or demeaning the other, particularly in the presence of the children. Finally, a police assistance clause was included to provide enforcement so that neither party was deprived of his or her time with the children by non- compliance by the other with the specified time and exchange provisions set out in the order. [ 6 ] There were other intentions contained in the order of 30 September 2011. These could be extrapolated from the specific

schedule of secondary residence contained in the order. The intent was to effect some fairness and to accommodate the parties and the children within the constraints of the circumstances prevailing. These measures included: (

a) a progressively increasing frequency and duration of maternal care commencing on 25 September 2011, since there had been a hiatus in the mother-and-child contact since May 2011; (

b) an interruption of the secondary residence of these children with their mother for (approximately) the month of November 2011 to enable them to travel to Florida with, and spend this time with, their paternal grandparents; (

c) a resumption of sharing residences between the homes of each parent, starting on 3 December 2011 in a manner that would enable the children to go to school from the father’s home and to spend some time each weekend with their mother (and with their three half-siblings who were still residing with their mother). [ 7 ] From the evidence filed in the present motion, it appears that, of the days specified for residency with the mother, only the first, namely, Sunday, 25 September 2011 for seven hours, actually materialized.

The very next day (28 September 2011), the father brought the present motion to have the balance of any of the children’s secondary residence time with their mother to be restricted to the Supervised Access Facility. So far as I can determine, the father has not permitted the children to spend any more time with their mother since and this continues to date. [ 8 ] Although not formally claimed in his motion (at tab 3, volume 2), the father also argues that the mother’s contact with

the children should be suspended from 24 December 2011 to 1 February 2012 so that the children can spend this time in Florida with his parents. It appears that, for some reason not disclosed in the evidence, the Florida trip did not take place in the month of November 2011 and the grandparents have apparently rescheduled it for the month of January 2012. [ 9 ] A more detailed history for the present motion is provided in my written reasons released on 13 September 2011.

I feel only two sentences of those reasons bear repeating, namely, that interim orders are intended to continue until a final resolution of the case is made, and that interim orders are not meant to be varied, unless there are fairly compelling reasons for doing so. [ 10 ] The father seeks to vary the interim order. Although his claim is, at least superficially, a relatively simple claim to include a location for the times these two children spend with their mother, in reality, to vary the order by including such a change is tantamount to dismantling the order in its entirety.

First, the Supervised Access Facility could not accommodate “access” that includes an overnight, and even less an access that includes 48 hours and involves two overnights. [2] Second, the exchange provisions in place become meaningless if mother-and-child contacts take place at the Supervised Access Facility. The police assistance order would be inappropriate in the case of the mother and unnecessary in the case of the father.

Really, the only vestige of the existing order that could remain unchanged would be the non-disparagement clause. [ 11 ] The onus is on the father as the motion applicant, not only to persuade the court that a change in the order is necessary, but also to justify the specific change he is asking for in his motion. [ 12 ] Variation of orders, even interim orders, is governed by

section 29 of the Children’s Law Reform Act , R.S.O. 1990, c. C-12, as amended. [3] A closer scrutiny of the legislative wording of this

section is worthwhile.

Section 29 does not say that a court may vary an order if there has been a material change in circumstances. What it says is that a court shall not vary an order unless there has been a material change in circumstances. This difference is significant. [ 13 ] A change in circumstances is not sufficient. The change must be “a material change”. This means it must be “substantially important”. [4] [ 14 ] Moreover, even if the change is material or substantially important, that may not be enough to justify varying the terms of the existing order.

The material change in circumstances must affect, or must be likely to affect the best interests of the child or children. [ 15 ] When a decision related to the best interests of a child is to be made, the court is given a statutorily list relating to the child’s needs and circumstances that it must consider in arriving at his decision. [5] [ 16 ] All of this falls, in this motion, on the shoulders of the father, the motion applicant. He must persuade the court and do so on the basis of the evidence.

And that evidence has to meet the civil standard of the balance of probabilities — that is, that what he alleges is more likely true than not. [ 17 ] The father filed one affidavit (at tab 6, volume 2) with respect to this motion. It has seven paragraphs. Paragraphs (1) and (7) are informative in nature and are of marginal evidentiary value with respect to the material changes in circumstances that the father has to demonstrate. [ 18 ] This case, including the present motion, is governed by the Family Law Rules , O. Reg. 114/99 as amended.

Subrule 14(18) prefers affidavits to contain first-hand knowledge of the deponent. Although hearsay evidence in affidavits is still admissible on motions, it is only so if the deponent identifies his or her source of the information by name and states his or her belief that the statement is true. [6] A judicial function in making any judicial determination is the weighing of evidence.

It seems to me, in the absence of unusual circumstances, that first-hand evidence will almost universally be accorded more judicial weight than second-hand (or third-hand) evidence. [ 19 ] An examination of the five paragraphs that represent the father’s relevant evidence on the present motion to change shows that he has presented no first-hand evidence. All of what he presents and asks the court to believe is true is what he has been informed of by others: [S1], [S2] and children’s aid society worker Colina Terry. And some of the information from Ms.

Terry presented by the father is not what she personally heard or saw; rather it is what was apparently recounted to her by one of the children ([S2]). [ 20 ] Essentially, the totality of the father’s evidence on this motion originates with [S1], who is age seven, or [S2] who is age six, or both. And the father is not entirely clear what particular factual information was conveyed by which child. The second-hand nature of this evidence attenuates its evidentiary value considerably. Its genesis in a six and seven year old weakens the evidence even more so.

Moreover, the fact that it is these two children undermines his evidence even more. I have already indicated my wariness in believing anything that these two particular children may say. They have already shown that they are able to say things that have not been true. [ 21 ] In

summary, the father’s evidence on this motion is not very strong in terms of the judicial weight that I assign to it. This is so even without taking into account the evidence in response. [ 22 ] The mother’s responding evidence is in the form of two affidavits. The first (at tab 7, volume 2) is sworn by K. Hill, a secretary of counsel for the mother. Ms. Hill has absolutely no first-hand knowledge of anything that is relevant to the issues in the present motion. All that she can attest to is what is told to her by the mother, the mother’s counsel and OPP Constable Eady.

In the case of Constable Eady, this information also included some that he received from the children’s aid society. In short, her entire affidavit is completely hearsay in nature. As such, it merits as little judicial weight as the affidavit of the applicant father. [ 23 ] It is common ground that Ms. Terry of the children’s aid society interviewed both children on 27 September 2011, two days after their visit with their mother. The father claims in his evidence that Ms. Terry (and presumably the society) supports his request that maternal access be supervised. The mother’s evidence through Ms.

Hill is that the society has no concerns whatsoever about the children’s being with the mother for the time specified in the court order, presumably unsupervised. How does the court reconcile these two very disparate, if not opposite, allegations of the position of the society? [7]

[ 24 ] It seems logical that, knowing that there existed a dispute about the society’s position, one or the other or both of the parties would have obtained a first-hand affidavit from Ms. Terry as to the actual position of the society. Regrettably, none was filed. [ 25 ] I do not lose sight of the fact that the mother has her own self-interests and has also shown herself to be a bit of a “loose cannon” in terms of her verbal output.

Nevertheless, in absence of some good reason to discount her credibility, I must, at this stage of the case, accept her sworn affidavit as a first-hand account of what transpired on 25 September 2011. Assessing the evidence on each side of the motion, the mother’s evidence is simply superior. [ 26 ] This should really suffice as a basis for dismissing the father’s motion. His evidence was just not up to snuff. He has not met the onus upon him for variation of the order of 30 September 2011. [ 27 ] There is another reason why he fails in his motion.

Even if what he alleges took place actually did take place, this would not be sufficient to justify the particular relief claimed. [ 28 ] First, unless I am misreading the motion of the father, the father’s only material changes in circumstances relate to disclosures of the children to him and to Ms. Terry following 25 September 2011. I infer that what he relies upon is the non-compliance by the mother with the terms of the order.

The only term of which he could logically be thinking is that which prohibits the disparagement or demeaning of him by the mother. [ 29 ] I agree that, if what he reports that the children disclosed to him were true, some of this would constitute disparagement and would reasonably be demeaning to him. Aside from the very important fact that I have not accepted these as true, they would not justify the comprehensive changes to the order that he is seeking in his motion. Perhaps they might warrant a lesser sanction.

The father’s claim is really in the range of overkill. [ 30 ] Second, if variation was to be made, it must result in an order that was in the best interests of these two children. Reduction of time spent with their mother of 24 or 48 hours on weekends, at the home in which they had resided, in the company of their half- siblings, to two hours per week at a supervised access facility does not seem to me to accord with several of the circumstances set out in subsection 24(2) of the Children’s Law Reform Act .

I also note that the father’s evidence (and his counsel’s submissions) said almost nothing about the mandatory considerations that the court is obligated to take into account in considering a motion claim such as this. I am not prepared to either assume, or take judicial notice, of the extent to which disparaging or demeaning remarks of the mother alleged by the father might impact negatively on these two children.

They are seven and six years old but it cannot be much of a secret to either of them, after all through which they have been, that the mother and father are in a fight with each other and that they are not friendly. [ 31 ] A third consideration has to do with the stage of this proceeding and the involvements of others.

One very important recent involvement is that of the Office of the Children’s Lawyer, which has finally agreed to provide some services in the form of a clinical investigator and report. [8] This cannot but provide assistance in a case where so much has teetered on what these two children have told various people at various times. Another involvement is that of the children’s aid society whose mandate is protection of children. It seems to be fully aware of what has gone on in this family, of the terms of the order of 30 September 2011 and of the recent allegations.

So far, it has not intervened in any significant way. What does this imply in terms of protection concerns? There is also police involvement in this family, mainly, but not completely on account of the police assistance clause in the order. What, precisely, the police are doing is unclear. I am not persuaded by hearsay evidence filed on behalf of the mother that the police have actually commenced any formal charges against the father. [ 32 ] In

summary, the father’s motion at tab 3, volume 2 is dismissed. The existing order shall continue as it stands. [ 33 ] The temporal structure of the order of 30 September 2011 made an accommodation to permit the children, [S1] and [S2], to travel with their paternal grandparents to Florida and to spend a month with them. This necessarily would have interrupted the time that the mother would otherwise have spent with these two children. It also meant that the children would be out of their normal classes at school while they were in Florida. I am not sure why the trip did not materialize in November.

I am not able to justify a similar accommodation for the Christmas season and the month of January 2012. The expectation is that these children will be spending time with both the father and with the mother, and that the clinical investigator from the Office of the Children’s Lawyer will be able to speak with the children and observe them interacting with both sides of the family. This cannot happen if the children are in Florida. This case was already directed to be set for trial many months ago. The Florida trip is an accommodation that cannot be made at this point.

Released: 16 December 2011 Signed: “Justice John Kukurin” 29. Order varying an order.— 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 Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

(2) Best interests of child.— The court shall consider all the child’s needs and circumstances, including,

(

a) the love, affection and emotional ties between the child and, (

i) each person entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (

b) the child’s views and preferences, if they can reasonably be ascertained; (

c) the length of time the child has lived in a stable home environment; (

d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (

e) any plans proposed for the child’s care and upbringing; (

f) the permanence and stability of the family unit with which it is proposed that the child will live; (

g) the ability of each person applying for custody of or access to the child to act as a parent; and (

h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

(18) Affidavit based on personal knowledge.— An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit.

(19) Affidavit based on other information.— The affidavit may also contain information that the person learned from someone else, but only if, (

a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and (

b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed. 112. Investigation and report of Children’s Lawyer.—

(1) In a proceeding under the Divorce Act (Canada) or the Children’s Law Reform Act in which a question concerning custody of or access to a child is before the court, the Children’s Lawyer may cause an investigation to be made and may report and make recommendations to the court on all matters concerning custody of or access to the child and the child’s support and education.