



COURT OF APPEAL FOR ONTARIO

CITATION: Goldman v. Kudelya, 2017 ONCA 300

DATE: 20170413

DOCKET: C61585

Epstein, Benotto and Trotter JJ.A.

BETWEEN

Jesse Irwin Goldman

Applicant (Appellant)

and

Larisa Kudelya

Respondent
    (Respondent)

Bryan R. G. Smith, for the appellant

Larisa Kudelya, in person

Heard: March 16, 2017

On appeal from the order of Justice Richard T. Bennett of
    the Superior Court of Justice, dated December 17, 2015.

Benotto J.A.:

[1]

The parties are the parents of a 10 year old girl. They have been
    disputing custody since she was three. In 2013, a trial judge made a final
    order with detailed provisions for parallel parenting. In 2014, the appellant
    (father) launched a motion to change seeking sole custody. After a six day
    hearing, the motion to change was dismissed. The motion judge found that there
    had not been a material change in circumstances and added that he would not, in
    any event, have awarded sole custody to the father. The father appeals claiming
    that the motion judge erred in failing to find a material change in
    circumstances and also erred in not granting him sole custody.

[2]

For the reasons that follow, I would dismiss the appeal.

A.

FACTS

[3]

The parties were married in 2004. The father is a lawyer; the mother is
    a registered nurse. They have one child, born January 2007. They separated in
    January 2010 when the mother was contacted by a woman who provided her with
    evidence of the fathers affairs. This was the genesis for ongoing mistrust, anger
    and a sense of betrayal that the mother felt towards the father.

[4]

The parties immediately embarked upon what has been accurately described
    as high conflict litigation. The police, childrens services agencies and the
    courts became involved. In August 2010, the court appointed Dr. Irwin Butkowsky
    to conduct an assessment pursuant to s. 30 of the
Childrens Law Reform Act
, R.S.O. 1990, c. C.12
.

[5]

Dr. Butkowsky conducted an extensive assessment and prepared detailed
    recommendations with respect to parenting. In his opinion, both parents were
    loving and had good parenting skills. The difficulty was the lack of mutual
    trust leading to ongoing conflict. His recommendation for decision-making for the
    child focused on a concept known as parallel parenting or divided custody.
    This means that each parent has decision-making authority in certain areas
    after consultation with the other. For example, the father has decision-making
    authority over education, the mother over health issues. Dr. Butkowsky was of
    the view that in situations of intense conflict, shared parenting, which
    involves joint decision-making, would increase the likelihood of the child being
    exposed to conflict.

[6]

Dr. Butkowsky further recommended that the parties attend joint
    education/facilitation with a qualified mental health professional who could
    serve as a parenting coordinator and assist in the implementation and
    maintenance of the recommended parenting plan.

[7]

Dr. Butkowsky met with the parties to achieve agreement. The parties did
    not agree. They proceeded to settle the financial issues and went to trial on
    child related matters in June and July 2012.

Trial before Kaufman J.

[8]

After a 15-day trial, Kaufman J. concluded that Dr. Butkowskys recommendations
    should be implemented. The trial judges reasons reflect a keen awareness of
    the extent of the conflict between the parents. He referred to Dr. Butkowskys
    testimony that these parents are incapable of cooperative communication and
    mutually trusting interaction. He also acknowledged that the parents display
    mutual mistrust, underlying mutual hostility, high levels of conflict and
    apparently poor conflict resolution skills.

[9]

The trial judge accepted Dr. Butkowskys recommendations with respect to
    parallel parenting and the appointment of a mutually agreed upon parenting
    coordinator with arbitral powers. The trial judge concluded, at para. 193:

Awards of custody should not reflect a winner and a loser; the
    mere fact that [the childs] parents have been involved in the prolonged and
    somewhat sordid case, if the trend continues, could make the child a loser

Having heard the evidence of the witnesses and placing
    considerable emphasis on the most thorough report of Dr. Butkowsky, this court
    is satisfied that the recommendations set out in the report provide a complete
    package for checks and balances to ensure that these parents pay more than lip
    service to the concept of the best interests of their daughter.

[10]

The trial judge ordered that if the parties could not agree on a
    parenting coordinator, Dr. Butkowsky would choose.  No appeal was taken from
    this order.

[11]

The judgment was released on August 6, 2013. Fourteen months later, on
    October 23, 2014, the father commenced his motion to change.

Motion to change

[12]

The motion was heard by Bennett J. in June and August 2015. The father
    sought to change Kaufman J.s judgment to grant the father sole custody and
    primary residence of the child. The primary basis for his motion  as
    understood by the motion judge  was that a parenting coordinator had not been
    put in place. The father claimed that this was the mothers fault. The mother,
    of course, disputed this.

[13]

The motion judge instructed himself that in order to vary the initial
    order, he must find a material change in circumstances. He reviewed in some
    detail the trial judges findings about the relationship between the parties.
    He concluded that the parties were incredibly hostile, and that the mother, in
    particular, was the cause of much of the drama. He then considered the parties
    current situation. He found that the father had tried to rise above the
    conflict, but that he continues to subtly intimidate the [mother] provoking an
    adverse reaction. He further found that the mother is an intelligent woman who
    loves her daughter, but is unable to dissociate her anger at the father from
    her parenting responsibilities.

[14]

The motion judge reviewed a number of high conflict incidents relating
    to family holidays, religious occasions, summer camp, schooling and the
    appointment of a parenting coordinator. The motion judge found that although
    the mother was responsible for most of these incidents, the father was not
    totally blameless.

[15]

In a 30-page decision, the motion judge concluded, at para. 151:

For the reasons extensively set out above I find that there has
    been no material change in circumstances and that the events that have taken
    place since the first trial are events that are within the realm of what was
    anticipated by Justice Kaufman.

[16]

The motion judge found that even if there had been a material change in
    circumstances, he would not have granted the father sole custody. In his view,
    there was a risk that the father would alienate the child from her mother.

[17]

He ordered the parties to agree to a parenting coordinator within 10
    days, failing which  in accordance with the trial judgment of Kaufman J.  Dr.
    Butkowsky would appoint one.

[18]

The father appeals this order alleging that the motion judge erred in
    not finding a material change in circumstances and erred in not granting him
    sole custody. Further, the father submits that the motion judge erred in
    authorizing Dr. Butkowsky to appoint a parenting coordinator in the absence of
    agreement by the parties. If he is granted sole custody, seeks a termination of
    his child support payments.

The fresh evidence

[19]

Both parties seek to rely on fresh evidence describing the ongoing
    conflict. The fresh evidence details the recent conflict concerning appointing
    a parenting coordinator and arranging counselling for the child. Predictably,
    each spouse points the finger at the other.

[20]

The fathers fresh evidence focuses largely on efforts to arrange
    counselling for the child. He alleges that, even though the mother told the
    motion judge that she agreed to obtain counselling for the child, she has not
    done so. (It appears to be common ground that counselling falls within the
    purview of health, a topic over which the mother has decision-making
    authority.) The mothers evidence suggests that it is the father who has been
    thwarting her efforts to arrange counselling.

B.

ISSUES

[21]

The issues to be addressed are:

1.

Should the fresh evidence be admitted?

2.

Has there been a material change in circumstances?

3.

Did the motion judge err in authorizing Dr. Butkowsky to appoint a
    parenting coordinator if the parties could not agree on one?

[22]

In light of my conclusions on the above issues, it is not necessary to
    address the motion judges refusal to change custody or the fathers request to
    terminate child support payments.

C.

ANALYSIS

(1)

Should the fresh evidence be admitted?

[23]

The principles governing the admissibility of fresh evidence on appeal
    are outlined in
R. v. Palmer
, [1980] 1 S.C.R. 759, at p. 775.
    The
Palmer
test requires the applicant to satisfy four
    criteria: (i) the evidence could not have been adduced at trial; (ii) the
    evidence must be relevant in that it bears on a decisive or potentially
    decisive issue; (iii) the evidence must be reasonably capable of belief; and
    (iv) the evidence must be such that, if believed, it could reasonably, when
    taken with the other evidence adduced at trial, be expected to have affected
    the result.

[24]

If these were the only criteria for admissibility, the proposed evidence
    would not meet the test. The evidence reflects nothing new but a continuation
    of the conflict that existed at the first trial and at the time of the motion
    to change. On this basis, it would not reasonably have affected the result.
    Further, the evidence consists largely of an exchange of allegations and
    denials which this court is not in a position to resolve.

[25]

But the test here is different. The
Palmer
criteria are more
    flexible where an appeal involves the best interests of a child, and it is
    important to have the most current information possible when determining the
    childs best interests [g]iven the inevitable fluidity in a childs
    development:
Childrens Aid Society of Owen Sound v. R.D.
(2003),
    178 O.A.C. 69, at para. 21. Even on this expanded test, the proposed evidence
    fails.

[26]

The proposed evidence is predominantly focused on the parents inability
    to appoint a parenting coordinator and arrange counselling for the child.

[27]

Ironically, the most relevant portion of the fresh evidence is that with
    which both parties agree and which could have been admitted on consent. That
    is, the parties now have a parenting coordinator in place. The parties have
    retained Linda Chodos and have started meeting with her. The father raises the
    issue that Ms. Chodos is not complying with the order of Bennett J. because she
    has not agreed to stay on for a two-year term. Instead, she has agreed to work
    with the parties for six months at a time and evaluate the ongoing suitability
    of the process at each six-month interval. In my view, Ms. Chodos cannot be
    faulted for requiring regular evaluations. It would make little sense to continue
    an unsuitable process. In addition, the father, having agreed to this sensible process,
    cannot now raise it as an issue.

[28]

The issue of counselling factors predominantly in the fresh evidence. The
    father alleges that the child is floundering. The mother does not agree. The
    more flexible approach to the
Palmer
test in custody matters is not an
    opportunity for parents to continue an affidavit war. The reason for the more
    flexible approach is to provide the court with current information about the
    condition, means, needs, circumstances and well-being of the child. Nowhere in
    the fresh evidence here is this addressed.

[29]

The evidence of the childs need for counselling is not new. The evidence
    was before the motion judge and put to him as a basis for a finding of a
    material change; he was not asked to decide that the evidence demonstrated a
    need for counselling. The evidence related to three events of conflict between
    the parents which greatly upset the child: Rosh Hashanah 2014; the cancelling
    of summer camp in 2014; and Thanksgiving 2014. The motion judge fully
    considered all three events.

[30]

The three events are not new and there is no fresh evidence about
    them. They do not relate to the childs current need for counselling.

[31]

With the exception of the agreed-upon fact that a parenting coordinator
    is now in place, I would not admit the fresh evidence.

(2)

Has there been a material change in circumstances?

[32]

The authority for a change of a final custody order is found in s. 17 of
    the
Divorce Act
, R.S.C. 1985, c. 3
.
The relevant portions are as follows:

17

(1)
A court of competent
    jurisdiction may make an order varying, rescinding or suspending, prospectively
    or retroactively,



(b)
a custody order or
    any provision thereof on application by either or both former spouses or by any
    other person.



(5)
Before the court makes a variation order in
    respect of a custody order, the court shall satisfy itself that there has been
    a change in the condition, means, needs or other circumstances of the child of
    the marriage occurring since the making of the custody order or the last
    variation order made in respect of that order, as the case may be, and, in
    making the variation order, the court shall take into consideration only the
    best interests of the child as determined by reference to that change.



(9)
In making a variation order varying a custody
    order, the court shall give effect to the principle that a child of the marriage
    should have as much contact with each former spouse as is consistent with the
    best interests of the child and, for that purpose, where the variation order
    would grant custody of the child to a person who does not currently have
    custody, the court shall take into consideration the willingness of that person
    to facilitate such contact.

[33]

For over two decades the law has been clear about the test to be applied
    when the court is asked to vary a custody order. In
Gordon v. Goertz
,

[1996] 2 S.C.R. 27, the Supreme
    Court clarified that s. 17 calls for a two-stage inquiry. First, there must be
    a material change in the situation of the child which represent[s] a distinct
    departure from what the court could reasonably have anticipated in making the
    previous order:
Gordon
, at para. 12.

[34]

If there is no material change, the inquiry ends. 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 original order.

[35]

The material change relied on by the father before the motion judge was
    that a parenting coordinator has not been put in place as was a requirement of
    the consent portion of Justice Kaufmans Order. Before this court, the
    material change alleged was reframed somewhat. The father alleged that the
    material change was the fact that the expectation of the trial judge of a
    failsafe appointment of a parenting coordinator was not realized, and thus
    the checks and balances anticipated were not in place.

[36]

I would not give effect to either iteration of the alleged material
    change.

[37]

First, it is clear from the trial decision of Kaufman J. that he
    anticipated that either party might frustrate or just not agree to the
    appointment of a parenting coordinator. That is why he provided the alternative
    of having Dr. Butkowsky make the appointment.

[38]

Second, a fair reading of Kaufman J.s reasons indicates very clearly
    that, far from assuming any solution was failsafe, he was concerned that the
    prolonged and somewhat sordid situation would make the child a loser 
if the trend continues
 (emphasis added). In my view, he
    was aware that the trend of conflict might continue and was attempting to make
    the best decision in a difficult set of circumstances.

[39]

Third, the ongoing problems associated with the appointment of a
    parenting coordinator were symptomatic of the long-standing conflict between
    the parties. Those problems were not unanticipated. As stated by the motion
    judge, at para. 139:

I find that rather than this being a material change in circumstances,
    it was in fact contemplated by both Dr. Butkowsky and by Justice Kaufman that
    the [mother] may well attempt to reject any parenting coordinator recommended
    by Dr. Butkowsky.

[40]

And, at para. 143:

[T]he court finds that the [mother] not being cooperative is in
    fact something that was in fact contemplated by Justice Kaufman and was
    provided for in his decision. The [mothers] lack of cooperation is hardly a
    material change but in fact is a continuation of her actions since the
    [fathers] mistress arrived at her door with revelation and proof of his
    indiscretion.

[41]

The conflict here began when the parties separated. It continued
    throughout the litigation, and it was considered and anticipated by Kaufman J. A
    continuation of the conflict does not establish a material change in
    circumstances. This court confirmed this principle in
Litman v. Sherman
,
    2008 ONCA 485, 238 O.A.C. 164, when it found no reason to re-open custody in a
    situation where conflict between the parties was, regrettably, the norm".
    At paras. 36-37, the court said:

According to the trial judge, since the birth of their child,
    the parties have been altogether incapable of cooperating with one another in
    order to raise [the child]. This finding is well supported by the evidence. The
    parties willingness to work through a parenting coordinator does not detract
    from that finding; rather it reinforces it, given one was necessary to begin
    with and given this regime quickly deteriorated and proved unworkable. It
    follows that  the conflict between the parties did not constitute either
    a change or a situation that could not have been foreseen by them at the time
    of [the original] order.

[42]

The father submits that
Litman
is distinguishable because the
    change in circumstances in this case is not the continuing conflict. Rather, it
    is the failure of the plan put forth by the trial judge. I have already
    addressed this submission and would add that the parenting coordinator is now
    in place, thus the plan has not in fact failed. That it took longer than usual
    is not surprising given the level of conflict here.

[43]

I see no error in the motion judges finding that there was no material
    change in circumstances and that the events that took place after the trial
    were within the realm of what could reasonably have been anticipated by the
    trial judge.

(3)

Did the motion judge err in authorizing Dr. Butkowsky to
appoint a parenting coordinator if the parties could
    not agree on one?

[44]

The father submits that it was not open to the motion judge to delegate
    custody, access and parenting decisions to a third party. There was no agreed-to
    process for selecting a parenting coordinator. The father is no longer willing
    to submit to the parenting coordinator process given the mothers lack of
    cooperation.

[45]

The content of the motion judges order was not new. The motion judges
    order simply restated Kaufman J.s original order after the first trial, when
    he accepted Dr. Butkowskys recommendation that if the parties did not agree on
    a parenting coordinator, he would have the authority to name one. No appeal was
    taken from this judgment. In fact, the basis for the fathers motion to change
    was the fact that a parenting coordinator had not been appointed. I see no
    reason for appellate intervention on this issue.

D.

DISPOSITION

[46]

I would dismiss the appeal with costs payable to the respondent (mother)
    in the amount of $1,000.00 inclusive of disbursements and HST.

Released: April 13, 2017

M.L. Benotto J.A.

I agree Gloria
    Epstein J.A.

I agree G.T. Trotter
    J.A.


