This matter was a motion to change the order regarding parenting time, decision-making responsibility, and child support, which resulted in an 8-day trial.
The parties began a relationship in 2002 and separated in 2009 when their child (“S”) was one and a half years old. The matter was litigated and ultimately resolved by way of consent (which was made into a court order).
Per the order of May 2012, the parties were to have shared custody (now “decision-making responsibility”) of the child, who was 5 years old then. S was to be with the father every weekend, and the mother could request weekend time.
In 2014, the father began to have S in his care regularly during mid-week times and overnight. The mother’s parenting time declined as she claimed the father essentially dictated the schedule at this point.
In 2016, the mother began to resist the father’s efforts to continue with increased parenting time and she insisted that the terms of the order be followed. The ensuing conflict over the parenting schedule led to the current litigation in August 2018, initiated by the mother.
The conflict over the parenting schedule involved arguments over text, the father messaging S, angry outbursts by the father, the father calling the mother names…etc.
The mother now sought the primary residence of the child (who was now 15 years old), and sole decision-making responsibility. She wanted the father’s contact with S to be limited to instances where the child requested the same.
The father, conversely, wished to amend the May 2012 order so that both parents could enjoy equal parenting time and joint decision-making responsibility.
S’s mental health concerns were noted: she had attempted suicide and had a history of self-harming. She was in therapy and had seen several counselors – none of whom testified at trial as per S’s wish not to let her father know of her treatment/counseling.
Per the OCL appointed-clinician meetings with S, the child expressed having a stronger relationship with her mother and being afraid of the father’s bouts of anger/reactions. S confirmed that her mother was not keeping her from her father and that she would be supportive of S’s decision to see her father if she so chose.
Had there been a material change in circumstances warranting a variation of parenting time, decision-making responsibility, and child support as stipulated in the May 2012 order?
Section 29 of the Children’s Law Reform Act outlines the law pertaining to the variation of orders. It requires a “material change in circumstances that affects or is likely to affect the best interests of the child”.
As per F.K. v. A.K. (2020) ONSC, there is a two-stage process in determining whether to change a decision-making or parenting order:
Step 1, as per Justice Pazaratz:
a. There must be a change in the condition, means, needs, or other 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 that 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, could likely have resulted in a different order". L.M.L.P. v. L.S. 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 (Ont. C.A.).
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 order.
Step 2: a fresh inquiry into the best interests of the child
- both parties bear the evidentiary burden of demonstrating where the best interests of the child lie
- the court must ascertain the child's best interests from the perspective of the child rather than that of the parents
- the child should have maximum contact with both parents if it is consistent with the child's best interests
- take into account the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs.
Section 24 of the CLRA sets out the factors for the court to consider in determining the best interests of the child.
Ultimately, the court found that there had been a material change in circumstances considering over 10 years had passed since the original order and since the original order could not have accounted for S’s current mental health struggles. Consequently, “a substantial change in the parenting order” was warranted here.
Though the father was found to be deeply affectionate towards S, he struggled to provide for the child’s emotional and mental well-being. He was insistent that the mother was alienating him from S, and that that was the sole reason S did not wish to see him. The court did not find evidence of such alienation by the mother but did find such evidence on the part of the father.
The evidence showed that the father had been extreme in refusing parenting time when requested by the mother. Additionally, text messages showed his derogatory messages to the mother and gave the court reason to believe the mother’s submissions that she went along with the father’s proposed parenting time for fear of starting arguments.
The evidence also showed instances of the father’s angry outbursts when he disagreed with the mother’s requests for parenting time, his intrusive questioning of S regarding her conversations with her counselors, telling S that he didn’t trust her counselor, and his lack of concern for S’s privacy.
Citing the father’s inability to support S’s relationship with her mother, his lack of respect and “unrelenting behaviors” towards the mother, and his inability to understand his role in the conflict, the court found that it would not be in S’s best interests for the father to have any decision-making or caregiving role.
It was also held to be in the child’s best interests for the father not to have access to S’s medical and health information.
The court noted that the lack of physical violence did not mean any family violence, as the father’s angry outbursts had an intimidating effect. His behavior was found to be threatening and controlling of mother and child.
The parenting order sought by the mother was granted.