J.D.R., ) ) ) ) ) Counsel: Self-Represented for the petitioner, petitioner, ) ) ) v. ), 2022 MBKB 200

Date: 20221025 File No.: FD 18-01-19687 (Winnipeg Centre) Indexed as: J.D.R. v. A.N.R. Cited as: 2022 MBKB 200 COURT OF KING’S BENCH OF MANITOBA (FAMILY DIVISION) BETWEEN: J.D.R., ) ) ) ) ) Counsel: Self-Represented for the petitioner, petitioner, ) ) ) -and- ) ) A.N.R., respondent. ) ) ) ) Self-Represented for the respondent, ) JUDGMENT DELIVERED : ) OCTOBER 25, 2022 THOMSON J.

Introduction [ 1 ] The respondent seeks to vary a final order made by consent under the Divorce Act , R.S.C., 1985, c. 3 (2 nd Supp .) (the “ Act ”), on April 20, 2020, the date on which the parties were also divorced. [ 2 ] The terms of that order, salient to this proceeding, provide that the parties share care and control of their child, E.J.R. (“E.”), and that the child “shall continue to attend school in Steinbach… unless the parties otherwise agree in writing.” The respondent’s request of the court is that this provision in the final order be deleted, and replaced, with a term granting to her “the right to make the final decision with respect to education decisions” concerning the child, and an order that the child “will attend school in Tyndall, Manitoba beginning September of 2022.” [ 3 ] E. is currently attending school in Steinbach.

To conflate the two forms of relief sought, what the respondent wants is to be clothed with the authority to select E.’s school, and to move him to a school in Tyndall.

[ 4 ] The court received both affidavit evidence and viva voce testimony at a trial, which concluded in a single day. The court heard from the parties and from three other witnesses, including the respondent’s doctor. The Law [ 5 ]

Section 17 of the Act regulates the jurisdiction of the court to vary, rescind or suspend a parenting order or any provision thereof, and similar principles generally apply under s. 17 to those governing an original application under s. 16 , for an order providing for the exercise of parenting time or decision-making responsibility. [ 6 ] The Act mandates a two-stage inquiry by the court. A practical

summary of that inquiry is contained in Payne on Divorce, Carswell, 4 th ed., by Julian D. Payne, at pp. 435-436: The Divorce Act requires a two-stage inquiry. First, the party seeking variation must show that a material change in the condition means, needs, or other circumstances of the child has occurred since the making of the custody order or the last variation order. If the applicant is unable to show the existence of a material change, the inquiry can go no further.

Change alone is not sufficient; the change must have altered the child’s parenting needs or the ability of the former spouses to meet those needs in a fundamental way.

Before entering on the merits of an application to vary a custody order, the judge must be satisfied of a change in the condition, means, needs or circumstances of the child and/or the ability of the former spouses to meet the parenting needs of the child which materially affects the child and which was either not foreseen or could not have been reasonably contemplated by the judge who made the order which is sought to be varied. 509 If the threshold condition of a material change is established, the court should reassess the parenting arrangements in light of all the circumstances existing at the time of the variation proceeding.

The court should consider the matter afresh without defaulting to the existing arrangements and must make its determination having regard only to the best interests of the child in light of the change. 509 Goertz v. Gordon (May 2, 1996), unreported (S.C.C.) (McLachlin J.) [Footnote 510 omitted] Further Background/Trial Evidence [ 7 ] Pursuant to the terms of a consent interim order (made June 18, 2018, and varied on August 28, 2018), the petitioner was provided with primary care and control of E., with the respondent maintaining specified periods of care and control, under supervision.

The parties then both resided in Steinbach. In the fall of 2019, the respondent moved to Tyndall (roughly 60 km away) to reside with her now wife. [ 8 ] Parenthetically, a term of the consent final order made April 20, 2022, is that E.’s residence remain within 80 km of Steinbach, and that no more than 80 km separate the respective residences of the parties. Since that final order was made, the petitioner has remained in Steinbach, and the respondent in Tyndall. [ 9 ] On May 14, 2021, the respondent and her wife welcomed the birth of their child, F.

This is one of the events, or developments, that the respondent says constitutes a material change in circumstances, as contemplated by s. 17 of the Act . [ 10 ] Another relates to the respondent’s health. Approximately six months into her pregnancy with F., the respondent was diagnosed with symphysis pubis dysfunction (“SPD”), a condition typically occurring during pregnancy, when the joint between the left and right pelvic bones permits more movement than usual, causing discomfort and pain in the pelvic area. [ 11 ] Written reports and testimony provided by the respondent’s doctor confirm the diagnosis.

While the condition usually resolves itself following pregnancy, in the respondent’s case she says she continues to have pain and instability. And while the doctor indicated the respondent’s condition has improved since the birth of her child, she says there remain “limits on her functional abilities”. More particularly the doctor opined that, “She is unable to sit for prolonged periods of time without changing positions. This limits her ability to drive distances more than ~ 30 minutes.” [ 12 ] The evidence also discloses that physiotherapy and active participation in exercises continue to be recommended.

A letter from the sports medicine specialist (to whom the respondent’s doctor referred her) is referenced in one of her reports, but was never produced. The respondent did not testify about her participation in that physiotherapy or in exercises. While medication was prescribed during the respondent’s pregnancy, none is now.

No permanent damage has been sustained by the respondent. [ 13 ] The respondent also had an unrelated surgery in September 2022, from which it appears she has substantially recovered, and is not cited by her as impacting the motion before the court now. [ 14 ] In the period of her pregnancy and since, the respondent and/or her spouse have transported E. to and from school in Steinbach by automobile during her parenting time.

Since shortly after F.’s birth, she has also continued the operation of her home daycare (which she started in 2008). [ 15 ] That is, despite what she asserts are material changes in circumstances (the birth of F., and her medical issues) she has been able to adhere to the requirements of the final order, and to remain self-employed. [ 16 ] The petitioner says he has made offers to assist the respondent as much as he is able (he works full-time) with transport of E. to and from school during her periods of parenting time, if she is unable. I observe that those offers seemed tepid, and conceptual more than

specific, and that the toxicity, which has permeated the parties’ communications and relationship history, seems undiluted. Analysis and Decision [ 17 ] As referenced above, in paragraph 5 under the heading titled The Law , the burden upon the petitioner here in the first stage of the court’s inquiry is to establish the existence of a “material change”. Change alone will not suffice. The change “must have altered the child’s parenting needs or the ability of the former spouses to meet those needs in a fundamental way” ( Payne, ibid ).

Further, the court must be satisfied that the change “materially affects the child” and was either “not foreseen or could not have been reasonably contemplated by the judge who made the order which is sought to be varied” ( ibid) . [ 18 ] I doubt that the changes in circumstances relied upon by the respondent satisfy the stage-one test for the variation of the final order as she requests. [ 19 ] Respecting the birth of her child F. in May of last year, I am unable to conclude that it was beyond the contemplation of the court or the parties at the time the consent order was made, that the respondent would have another child in future. [ 20 ] If I am in error in that regard, I nonetheless doubt the materiality of that circumstantial change. [ 21 ] I hold that same doubt concerning the change in the respondent’s health status, which admittedly (and distinctly) could not have been within the contemplation of the court when the final order was pronounced. [ 22 ] I arrive at these conclusions in the context of the discrete and narrow term which the respondent seeks to vary; one that simply specifies that the child continue to attend a school some 60 km from her residence. [ 23 ] What is thereby required of the respondent is only that she facilitate the child’s transport to that school during her parenting time, which she has in fact been doing since at least the spring of 2020, to date.

She has also done so since her SPD diagnosis, which her doctor is hopeful will continue to improve over time with the appropriate therapeutic intervention. [ 24 ] Again, in the event my stated conclusions are incorrect and that there has been a material change in circumstances pursuant to s. 17 , the sequential stage-two analysis (a fresh inquiry into the child’s best interests without either party bearing an onus) does not lead to the conclusion that the variation to the final order sought is in E.’s best interests.

Rather, a considered review of all the evidence leads me to the conclusion that variation of the final order as proposed by the respondent is contrary to this child’s best interests. [ 25 ] What predominates in the respondent’s evidence are descriptions of the challenges she says she is experiencing in transporting E. to school in Steinbach (because of her health and other demands on her time), not considerations, events or circumstances which are adversely affecting his individual best interests, and which could be alleviated by a variation to the final order. [ 26 ] In this regard, the court also has the benefit of a Report it requested from Family Reconciliation Services, to supplement the information received from the parties and the witnesses, further describing this particular child, his circumstances and his wishes and preferences. [ 27 ] E. is 10 years old, and in Grade 5.

He appears to be a model student, and a very well adjusted child.

His Grade 4 report card notes that E. “consistently has a positive attitude and is a good influence on others.” Perhaps this may be a credit to his parents, that he seems to be thriving, and begs the question why a change to his current school situation is indicated. [ 28 ] Pointedly, the author of the Report observes that E. “wants his parents to “figure it out” and does not want to weigh in on this (school) decision”, and that he “wants his parents to keep him out of the middle of this decision, asserting he will be accepting of either outcome.” [ 29 ] E. has only ever attended school in Steinbach.

Most of his friends are there, though he knows children in the respondent’s area of Tyndall. As the Report writer states, “Given [E.’s] easygoing personality, he likely would do well in either school. Nonetheless, consistency, routine and predictability is ( sic ) important to children.” I agree. [ 30 ] The recommendation the writer makes is that E. remain in school in Steinbach. With the advantage I have of receiving the evidence at this trial, I also agree. The final order ought not to be varied as requested by the respondent. [ 31 ] There is one other matter, about which I will make a brief comment.

It does not bear directly upon the disposition of the respondent’s motion. But my sense is that it is a factor in the respondent’s decision to bring her motion to court.

And it has percolated throughout these proceedings during the case management process, and was made explicit in the testimony of the respondent and her spouse at trial, about their lived experience as a same sex couple in the region of the Province in which they live and work. [ 32 ] I do not question the veracity of the respondent’s and her spouse’s descriptions of abhorrent discrimination experienced by them (and by other members of the LBGTQ community of which they say they are members). They say that it was particularly acute in the period before and after the final order was made.

They express anxiety about the experiences that E. has had, or may have in future, in Steinbach specifically, due to their relationship, and to their perceptions as to the intolerance of some residents of that City. They fear him being bullied and, understandably, want to protect him. They posit that he will be better off attending a school in Tyndall. [ 33 ] In conducting the requisite analytical stage-one inquiry, I must note that these concerns were known to all, from at least 2019, when the relationship of the respondent and her now spouse was revealed to the community.

From a dry legal perspective, it does not constitute a material change in circumstances, permitting the sequential evaluation of E.’s best interests in a variation of the final order. [ 34 ] That is not to say that these matters could not bear upon E.’s well-being and best interests, in the widest sense. However, even upon a stage-two inquiry, there is an absence of specific, cogent evidence addressing this individual controversy, from the discrete vantage point of this particular child’s best interests. And it is evidence by, and with, which the court must make decisions.

[ 35 ] The child’s Grade 4 teacher was called to testify by the respondent. She expressed little concern about E. regarding his being bullied, nor general or specific issues at school arising from the respondent’s spousal relationship. [ 36 ] Documents concerning the human rights and diversity policies of the school division serving Steinbach were submitted at trial.

They do not appear wanting to the court. [ 37 ] The testimony of the respondent and her spouse did expose their concerns about E. over these matters, but very little in the way of detail or specifics was provided by them. [ 38 ] E. himself seems not to have expressed pertinent concerns to his Grade 4 teacher, or to the respondent, or as disclosed in the Family Reconciliation Report. [ 39 ] What I am tasked with is a duty to consider the evidence placed before me concerning this specific family and this particular child.

That evidence does not disclose that the maintenance of this child’s best interests requires a change in schools, for any of the foregoing reasons, or at all. Rather, I conclude from the evidence that his best interests would be compromised by such a change. [ 40 ] Accordingly, the notice of motion to vary of the respondent is hereby dismissed. Costs [ 41 ] Costs may be addressed in writing, if there is no agreement. J.