In a recent case, an Ontario court considered whether it could grant a father’s request to vary parenting time without proceeding to trial.

The Parties’ Story

The parties were married in September 2001 and separated in June 2011. They had four children together, ages 17, 15, 13 and 7.

In July 2016, the parties entered into a consent order, which stipulated that they would have joint custody and that the children would live primarily with the mother. The father’s parenting time was limited to seeing the children on alternating weekends from Friday through Monday.

Over the summer of 2018, the father’s parenting time with the children increased to every second week from Friday until Tuesday.

Later that year, the Office of the Children’s Lawyer filed a Voice of the Child Report. In the report, the three oldest children were consistent in their views and preferences, indicating that they wanted to have equal time with both parents. The youngest child expressed the same views and preferences but was more hesitant.

The father brought a motion for summary judgment for an order for equal parenting time.

The Relevant Legal Principles

The court began by explaining that according to section 17 of the Divorce Act, the father had to establish that there had been a change in the “condition, means, needs, or other circumstances of the children which materially affects the children.” Furthermore, to be successful on his motion for summary judgment, pursuant to rule 16(4) of the Family Law Rules, the father had to demonstrate that there was no genuine issue requiring a trial (i.e., no chance of success). The court noted:

The test for granting summary judgment is met when the moving party satisfies the court that there is no genuine issue of material fact that requires a trial for its resolution. Not every disputed fact or question of credibility gives rise to a genuine issue for trial; the fact must be material.

The court went on to explain that the responding party (in this case, the mother) had to provide evidence of specific facts showing that there was a genuine issue for trial. That is, mere allegations or blanket denials would be insufficient to defeat the father’s claim for summary judgment.

The court also indicated that its role was to ensure that the best interests of the children were adequately addressed on the available evidence.

The Court’s Decision

The court decided to grant the father’s motion in part. Specifically, the three oldest children were all ordered to have parenting time with each parent on alternate weeks (as the father requested). However, the court concluded that determining what parenting time was in the best interests of the youngest child was an issue that needed to proceed to trial.

The court found that the children’s maturation over five years, and the ability to now obtain their views and preferences (which supported a significant change in the parenting arrangement), constituted a material change in circumstances.

The court concluded that there was no triable issue with respect to the two oldest children because of their consistent views and preferences, the strength of their views, and their ages. The court also found that there was no triable issue with respect to the third oldest child because she had also been consistent in her views and preferences, and had always exercised access with her two older sisters. Furthermore, the court considered the mother’s acknowledgement that it was best for the three oldest children to exercise access together.

That said, in the court’s view, what parenting time was in the best interests of the youngest child was an issue that required a trial. Specifically, the court noted that the youngest child had been ambivalent about extending parenting time and that his views and preferences deserved considerably less weight because he was only seven years old. The court also considered that the child had ADD (attention deficit disorder), which meant that structure and consistency were very important factors. Finally, the court took into account the mother’s concern that the father would not be able to get the children to their extra-curricular activities.

Lessons Learned

A court will consider different factors when one part requests to vary parenting time, including a Voice of the Child Report.

Separation and divorce are best handled with the assistance of a knowledgeable family law lawyer. At Gelman & Associates, our lawyers – who are knowledgeable and compassionate, but also tough when necessary – provide exceptional legal representation in all family law matters. Our goal is to always empower clients to make informed decisions about their future. We give all prospective clients a comprehensive family law kit during their initial consultation, as well as a copy of our firm’s handbook on separation and divorce. This information is full of resources that will help you understand and navigate the difficult and often complicated separation and divorce process.

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