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Family - Parenting. Jurrius v. Rasulli
In Jurrius v. Rasulli (Div Court, 2024) the Divisional Court noted the appellate deference to be accorded to a trial court's parenting' disposition:[23] As the Court of Appeal in Bors v. Bors, 2021 ONCA 513, 60 R.F.L. (8th) 36, at para. 19 reiterated, “[A]n appeal court must not retry parenting cases, but instead “approach the appeal with considerable respect for the task facing a trial judge in difficult family law cases, especially those involving custody and access issues”: C.S. v. M.S., 2010 ONCA 196, 262 O.A.C. 225, at para. 4. . Cuthbert v. Nolis
In Cuthbert v. Nolis (Ont CA, 2023) the Court of Appeal noted that (even) a parenting order may be changed where the order itself expressly anticipates such, despite the absence of a 'material change in circumstances':(i) Respondent was not required to demonstrate a material change in circumstances
[10] The 2018 order – despite being styled a final order – expressly permitted the respondent to apply for a change to the parenting schedule. It in no way required him to demonstrate a material change in circumstances. As Myers J. noted in his procedural endorsement dated August 15, 2019, “[t]he order is a final order but Justice Goldstein made it clear that the process could occur without a material change”. That is, Goldstein J. put in place a process to gradually implement what he determined was in the children’s best interests: an eventual 50/50 parenting time arrangement.
[11] While a review term in a final parenting time order is relatively rare, it is well-established that courts have jurisdiction to impose them: M. (K.A.A.) v. M. (J.M.), 2005 NLCA 64, 259 D.L.R. (4th) 344, at paras. 25-36. Neither party is required to establish a material change in circumstances with respect to an issue on which the court has authorized a review: Sappier v. Francis, 2004 NBCA 70, 246 D.L.R. (4th) 482, at para. 9. Contrary to the appellant’s submissions, s. 29 of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 does not impose an absolute requirement that a material change be shown in every case where a party seeks to vary a final order. As the Ontario Superior Court held in Fournier v. Fournier, 2020 ONSC 606, at paras. 84-85, “there is a narrow exception to the requirement that a material change in circumstances be shown, where the court has authorized a ‘review’”, which must be “narrowly construed and rarely ordered”. More recently, in Y.M.S. v. R.O.S., 2021 ONSC 6684, at para. 70, Doi J. held that a “review term under [a] parenting time provision in [a] Final Order creates a rare and narrow exception to the usual requirement that a material change in circumstances be shown to vary a parenting order”.
[12] Again, review terms in final parenting time orders are not the norm. As the Supreme Court has directed, “[i]nsofar as possible, courts should resolve the controversies before them and make an order which is permanent subject only to change … on proof of a [material] change of circumstances”: Leskun v. Leskun, 2006 SCC 25, 268 D.L.R. (4th) 577, at para. 39. Courts have recognized that it is generally in the best interests of children to provide them “with stability in their lives following family breakdown” by incorporating “some sense of finality into child-care arrangements”: M. (K.A.A.), at para. 26. For this reason, review terms are seldom ordered and must be 1) justified by genuine and material uncertainty at the time the original order is made, and 2) tightly delimited with respect to the issue or issues that will be subject to review: Leskun, at paras. 37-39; Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, at para. 65.
[13] Provided these criteria are met, review terms allow a court to avoid “[locking] the parties and the children into an access arrangement” where “[t]he situation continues to unfold in real time” and where the trial judge is not in a position to finally determine the appropriate parenting arrangements: Children and Family Services v. G.S., 2011 ONSC 1732, 279 O.A.C. 296, at para. 92. Put differently, a court-ordered review “removes the need for an aggrieved parent to ‘guesstimate’ when things have reached the point that he or she must return the matter to court”: M. (K.A.A.), at para. 26.
[14] I therefore accept that, in some circumstances, a review term may be appropriate but should be limited to situations where the parties’, or children’s, circumstances were uncertain at the time the original order was made. This is such a case. At the time of the 2018 order it was unclear what was causing G’s anxiety, nor was the extent of it well understood. While the fact a child is aging will never, on its own, amount to a material change in circumstances, when the 2018 order was made Goldstein J. found that “[G’s] anxiety seems to have improved with age” which, in my view, made a review term reasonable.
[15] In any event, I would not interfere with the trial judge’s conclusion that, even though not required in this case, there had been a material change in circumstances. This finding was rooted in and amply supported by the fact that G’s anxiety had “improved sufficiently” from 2018 until the order under appeal, and that it was “no worse when he is with [the respondent] than with [the appellant]”. The trial judge carefully reviewed evidence relating to G’s anxiety from multiple sources, including G’s counsellor, G’s schoolteachers, and the s. 112 report from the Office of the Children’s Lawyer (“OCL”). His factual findings are reasonable and entitled to deference. . Mehralian v. Dunmore
In Mehralian v. Dunmore (Ont CA, 2023) the Court of Appeal considers (and dismisses) an appeal of a parenting order that established the parenting jurisdiction to be that of Ontario, rather than Oman:[39] The Parenting Jurisdiction Judge therefore found that the parties decided to move to Toronto and began residing here in early April 2021, and were not merely temporarily visiting, as the respondent had claimed. The Parenting Jurisdiction Judge concluded that this was sufficient to establish that M. was habitually residing here, in accordance with s. 22(1)(a) of the CLRA.
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[42] I see no reviewable error in the Parenting Jurisdiction Judge’s factual finding that the parties were residing in Ontario at the relevant time, or in her conclusion that this was sufficient to establish habitual residence of M. for purposes of s. 22(1)(a) of the CLRA.
[43] Moreover, the Parenting Jurisdiction Judge did not err in finding that the recognition of the Omani divorce by the Divorce Recognition Judge did not oust the parenting jurisdiction of Ontario courts in relation to M. The Parenting Jurisdiction Judge correctly pointed out that the Divorce Recognition Judge’s mandate was to determine the divorce issue only, reserving to the Parenting Jurisdiction Judge the determination of parenting jurisdiction over M.
[44] I would therefore dismiss the respondent’s appeal of the Parenting Jurisdiction Order. . G.S. v. S.B.
In G.S. v. S.B. (Div Court, 2023) the Divisional Court considered the 'best interests' of the child standard, here regarding the role of the status quo with respect to a change in parenting custody:Did the trial judge err in failing to consider the importance of the status quo in determining the parenting schedule?
[43] The father submits that in making her parenting orders, the trial judge erred by failing to consider the status quo and other factors relevant to the child’s best interests as set out in the CLRA, such as the nature of the child’s relationship with each parent and whether the father was capable of caring for and meeting the needs of the child. He underscores that for long periods of time since the parties’ separation in late 2013, he parented J. almost exclusively while the mother struggled with mental health and addiction issues.
[44] I disagree that the trial judge erred in her analysis of J’s best interests. Subsection 24(2) of the CLRA requires the court, in determining the best interests of the child, to give primary consideration to the child’s physical, emotional and psychological safety, security and well- being. That is what happened here. The trial judge was well aware of the status quo and of the strong bond between J. and the father. She stated at para. 105 of her reasons that “J. is very closely bonded to G.S. and he misses him when he is with S.B.” She went on to say that, under normal circumstances, she would have ordered shared parenting on a week on/week off basis.
[45] However, she did not order a 50/50 schedule here because of the harm the father was causing to J. She found the case had many of the indicators of alienation. The father had psychologically harmed J. by interfering in the mother’s parenting time and by making J. feel responsible for his wellbeing. She considered his behaviour to constitute a pattern of coercion and control that fell within the definition of “family violence” in s. 24(4) of the CLRA. As she said at the outset of her decision, at para. 3, “G.S. is incapable of recognizing [the family violence he has perpetrated] and has taken no steps to prevent further family violence from occurring or to improve his ability to care for and meet the needs of J.” Overall, she found the father to be incapable of making decisions in J.’s best interests.
[46] In these circumstances, the trial judge found it was necessary for J. to reside with the mother for a period with limited parenting time for the father. This was not because she did not appreciate the status quo or the father’s bond with J., it is because she found it in J.’s best interests to have a break from the pressure he was under and to allow the father to engage in the services she ordered. The trial judge made an order that prioritized J.’s physical, emotional and psychological safety, security and well-being, as required. This ground of appeal must fail. . Spencer v. Spencer
In Spencer v. Spencer (Div Court, 2023) the Divisional Court allowed an appeal of a parenting order where a parent's access had been restricted due to their being unvaccinated for COVID:Parenting Schedule
[16] With respect to the parenting schedule, the motion judge erred in treating Mr. Spencer’s unvaccinated status as a primary factor impacting the best interests of the children.
[17] Subsection 16(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) requires the court to take into consideration only the best interests of the child when making a parenting order. In determining the best interests of the child, the court is required to consider the factors relating to the circumstances of the child set out in s. 16(3). Pursuant to s. 16(2), the court is required to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
[18] The motion judge correctly set out the principles applicable to the determination of a parenting order. For example, the list of best interest factors is not a checklist to be tabulated. It instead calls for the court to take a holistic look at the child: Phillips v. Phillips, 2021 ONSC 2480, 55 R.F.L. (8th) 442, at para. 47.
[19] In addition, the status quo with respect to parenting should ordinarily be maintained on an interim motion in the absence of compelling reasons that the children’s best interests require a change: Grant v. Turgeon, (2000), 2000 CanLII 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.J), at para. 15; Coe v. Tope, 2014 ONSC 4002, at para. 25.
[20] In this case, the motion judge based the parenting schedule on two factors: The first was his finding that the mother had been the parent primarily responsible for caring for the children’s needs on a day-to-day basis. The second was Mr. Spencer’s unvaccinated status. The motion judge stated that Mr. Spencer’s “choice not to become vaccinated puts the children at risk of harm should they contract COVID-19.” He went on to state that “[h]is parenting time with the children must be restricted to reduce their risk of harm.”
[21] Although the motion judge acknowledged some of the factors in favour of parenting time for Mr. Spencer – such as his parental leave and positive relationship with the children – he ordered a substantial change from the status quo in Mr. Spencer’s parenting time. Mr. Spencer was only to see the children for parts of three days each week, with no overnights. Specifically, his parenting time was restricted to two days per week from 3:30 p.m. until 7 p.m. and one weekend day from noon until 7 p.m. The motion judge also ordered that all his parenting time be exercised at the matrimonial home or outside.
[22] In addition to substantially limiting Mr. Spencer’s parenting time, the motion judge ordered other strict conditions related to COVID-19. Mr. Spencer was required to send Ms. Spencer a screenshot of a COVID-19 rapid test result every Tuesday and otherwise follow all government recommended safety protocols while the children were in his care. He was also not to knowingly expose the children to any individual he knew or believed to be unvaccinated. If he were to breach any of these conditions, Ms. Spencer was entitled to bring a motion to court on an urgent basis to suspend his in-person parenting time.
[23] It was an error for the motion judge to put such weight on Mr. Spencer’s unvaccinated status in arriving at the parenting order. Prior to the motion, Mr. Spencer resided with the children, was on parental leave, and had a positive, meaningful relationship with them. As a result of his unvaccinated status, he was awarded limited parenting time, including no overnights, with the parenting time to occur only in the home or outside, and at risk of losing all in-person parenting time for any breach. There was no evidence of any of the children being at an elevated risk if they were to contract COVID-19. Indeed, the older children were attending school where they were exposed to unvaccinated students and potentially unvaccinated adults. The evidence was also that Ms. Spencer wished to put the youngest child in day care. She was continuing to pay for this spot to ensure the child can return upon the completion of Mr. Spencer’s parental leave. In these circumstances, it was an error for the parenting schedule to be substantially dependent on Mr. Spencer’s unvaccinated status. It significantly and unjustifiably sacrificed the children’s meaningful relationship with their father and thereby failed to maintain the primacy of the children’s physical, emotional and psychological safety, security and wellbeing.
[24] The court has already set aside the COVID-19 testing and other COVID-19 restrictions related to Mr. Spencer’s parenting time. However, the court below is in a better position to determine the appropriate parenting schedule. Accordingly, the parenting schedule is remitted to that court for determination in accordance with these reasons. . A.V. v. C.V.
In A.V. v. C.V. (Div Court, 2023) the Divisional Court, in a COVID child vaccination family law case, considered interim orders for vaccination and the role of parental choice:Ordering Vaccination on an Interim Basis
[19] A second issue that arises in these appeals is whether a motion judge should refrain from ordering vaccination on an interim basis and instead wait for a complete evidentiary record at trial. The concern is that vaccination is an elective procedure that is not immediately required but once done, cannot be reversed.
[20] Some cases have determined it was appropriate to refrain from allocating interim decision-making with respect to COVID-19 vaccination. However, those cases were decided before J.N. v. C.G. and may have come to a different result with the benefit of the Court of Appeal’s decision.
[21] COVID-19 vaccination recommendations are current advice addressing a dynamic situation involving a global pandemic. In J.N. v. C.G., the Court of Appeal emphasized the danger from COVID-19 (that it kills people, including children) and that regulatory approval for the vaccine is a strong indicator of safety and effectiveness. In this context, compelling reasons would be required to disregard current advice and delay a decision on vaccination.
[22] A motion judge may take into account a prior court order or agreement allocating medical decision-making. However, granting an order against the wishes of the parent with primary decision-making authority does not require that the entirety of the parent’s authority be set aside: the issue of COVID-19 vaccinations can be addressed as a singular issue of disagreement without otherwise affecting the status quo.
[23] There is no impediment to authorizing a parent to have children vaccinated against COVID-19 on an interim basis. In the absence of admissible evidence and compelling reasons to the contrary, current health recommendations should be followed.
Views of Primary Caregiver
[24] An additional issue in this case is whether the motion judge erred by failing to accord more weight to the mother’s views as the primary caregiver. Subsection 20(1) of the Children’s Law Reform Act, R.S.O. 1990 c. C. 12, which applies in this case since neither party is seeking a divorce, provides that parents are equally entitled to decision-making responsibility with respect to their child. Pursuant to s. 20(4), if the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent, or acquiescence of the other, the right of the other to exercise the entitlement to decision-making responsibility with respect to the child is suspended until a separation agreement or order provides otherwise. However, pursuant to s. 21(1), a parent may apply to the court for an order respecting decision-making.
[25] Where there is no prior order or agreement for decision-making, the motion judge may take into account and weigh both parents’ positions in determining how to allocate decision-making on this issue in the best interests of the child. The motion judge may weigh one parent’s views more heavily based on factors such as the history of decision-making, but an appeal court would defer to this weighing exercise absent an error of principle. The parents’ views and positions also should be considered together with all the circumstances relating to the best interests of the child. . G.S. v. S.B.
In G.S. v. S.B. (Div Court, 2023) the Divisional Court considers a motion for a stay pending appeal of a parenting order:The Motion for a Stay Pending Appeal
[30] In determining whether to stay an order involving the parenting of a child, the court must consider: (i) whether, on a preliminary assessment, the appeal raises a serious question, recognizing that this is a low threshold; (ii) whether the child will suffer irreparable harm if a stay is refused; and (iii) the balance of convenience, that is, whether there would be greater harm from the granting or refusal of a stay pending a decision on the merits of the appeal. The overriding consideration is the best interests of the child. The court must be satisfied that it is in the child’s best interests to grant a stay: D.C. v. T.B., at para. 9;[4] K.K. v. M.M., at para. 17;[5] Lefebvre v. Lefebvre, at para. 6;[6] Circuit World Corp. v. Lesperance, at paras. 8-9.[7]
[31] The standard for appellate review of a parenting decision is exacting: Bors v. Bors, at paras. 18-20.[8] The function of the appellate court is not to retry the case on appeal. Intervention is warranted only if there is a material error, a serious misapprehension of the evidence, or an error of law: D.C., at para. 10.
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