



COURT OF APPEAL FOR ONTARIO

CITATION: Easson v. Blase, 2016 ONCA 604

DATE: 20160729

DOCKET: C61154

Hoy A.C.J.O., Brown and Huscroft JJ.A.

BETWEEN

Larissa Louise Easson

Applicant (Respondent in Appeal)

and

Friedrich Rudolf Blase

Respondent (Appellant in Appeal)

Stephen Grant and Jenna Preston, for the appellant

Larissa Easson, appearing in person

Heard:  July 21, 2016

On appeal from the order of Justice McWatt of the Superior
    Court of Justice, dated September 18, 2015.

ENDORSEMENT

Overview

[1]

This appeal arises out of a high-conflict dispute between parents
    regarding the residential schedule and parenting of their two children, now 12
    and 7 years old.

[2]

The parties separated on May 15, 2009. On May 14, 2012, on the eve of
    trial, the parents agreed on a comprehensive, final order (the Order)
    regarding the residential schedule and parenting of their children. Less than
    two years later, the father sought to vary the Order, among other things to
    provide that the children would reside with each parent on an alternate weeks
    basis and to remove the mothers decision-making authority.

[3]

Pursuant to s. 17(5) of the
Divorce Act
, R.S.C. 1985, c. 3 (2
nd
Supp.), the court cannot vary a custody order on the application of the parties
    in the absence of a change in the condition, means, needs or other
    circumstances of the child since the making of the order. There must be a
    material change in the circumstances of the child since the last custody order
    was made. A material change is one that altered the childs needs or the
    ability of the parents to meet those needs in a fundamental way: see
Gordon
    v. Goertz
, [1996] 2 S.C.R. 27, at para. 12. Absent the finding of changed
    circumstances, the courts inquiry can proceed no further: see
Litman v.
    Sherman
, 2008 ONCA 485, 52 R.F.L. (6th) 239.

[4]

The trial judge heard the fathers motion over 12 days in 2015. She concluded
    that there had not been a material change in circumstances since the making of
    the Order and that she was therefore without jurisdiction to vary it. She found
    that the father holds unbridled hostility towards the mother and that the
    children have flourished in the mothers stable and continuous care.  She
    wrote, at para. 89:

I cannot and will not imagine what material change would
    justify changing the [Order]. The best interests of the children are already
    being served. The parallel parenting regime suggested by the father would serve
    only to undermine the childrens stability in the context of their parents
    unstable relationship.

[5]

The trial judge awarded costs in favour of the mother.

[6]

The father appeals the trial judges order dismissing his motion to vary
    the Order. He argues that the trial judge erred in finding that there had not
    been a material change in circumstances and that a week-about time sharing
    arrangement is not in the childrens best interests. He does not appeal the
    trial judges conclusion that the change regarding decision making sought by
    the father was not in the childrens best interests.

[7]

The mother seeks leave to adduce fresh evidence that the father has
    willfully not complied with the terms of the Order since the trial judge dismissed
    his motion, and argues that this court should dismiss his appeal on the basis
    of that non-compliance. In response, the father has filed an affidavit denying
    that he has not complied with the terms of the Order.

[8]

For the reasons that follow, we deny leave to admit the fresh evidence
    and dismiss the fathers appeal of the trial judges dismissal of his motion to
    vary the Order.

[9]

The trial judge awarded costs in favour of the mother. The father and
    mother had also sought leave to appeal and cross-appeal the trial judges costs
    order. However, at the hearing, the father and mother abandoned their appeal
    and cross-appeal of the costs order.

Fresh Evidence

[10]

While the mothers proposed fresh evidence is seemingly credible, it is
    untested and the father denies non-compliance. His affidavit consists of a
    short, blanket denial of his non-compliance with the Order, but he only
    received the mothers materials a few days before the hearing of the appeal, on
    return from a vacation with the children. It is not the role of this court to
    make credibility findings.  In the circumstances, the mothers proposed fresh
    evidence, disputed as it is by the father, could not ground the dismissal of
    his appeal. Therefore, we decline to admit it and proceed to deal with the
    fathers appeal on the merits.

No Material Change in Circumstances

[11]

The father advances two arguments. First, he renews the argument
    rejected by the trial judge that the mother implicitly acknowledged that there
    had been a material change in circumstances when, in the course of the trial,
    she agreed to vary the Order by extending his alternating week access by one
    day. Second, he argues that the trial judge failed to consider the changed
    circumstances of his employment. He submits that as a result of a change in his
    workplace arrangements since the Order was made, he travels less and is now
    available to assume a greater parenting role.

[12]

We reject these arguments.

[13]

The fathers first argument is rooted in what the trial judge describes
    at para. 8 of her reasons:

[The mother] asked for a dismissal of the motion until I
    inquired, partly into the evidence of the father, whether there was any way the
    parties might agree on a variation of the Order. She changed her position to
    give the father more time than the present Thursday after school to Sundays at
    6:00 p.m. every other weekend. She proposed:

An Order that the childrens residential arrangements shall
    be altered such that their alternating week access with father commences
    Wednesday a.m. and ends on Monday a.m. when [the father] shall take the
    children to school

[14]

The father submits that, once a parent makes a concession, the other
    parent may be relieved of demonstrating a material change in circumstances.
    However, he concedes that this would not be the result of just any concession.
    According to him, the more that is conceded, the more likely that the
    concession will constitute an acknowledgement of a material change. And, he
    says, the one-day increase in his access during the school year was a
    sufficiently significant concession on the part of the mother to constitute an
    acknowledgment that there had been a material change in circumstances.  As a
    result of that one-day increase, the children are in the residential care of
    the father five days out of fourteen during the school year and approximately
    one-half of the time during holidays.

[15]

The mother made a concession, essentially consenting to part of what the
    father sought. A final order can be varied on the consent of the parties, in
    the absence of a material change in circumstances.

[16]

Furthermore, in this case the Order contemplated that the parties would
    mediate extensions of access time for the father, short of a new parenting
    regime. In the past, the parties have agreed through mediation to extend the
    fathers access time. The change agreed to by the mother during the course of
    the trial was a change of the type contemplated by the Order. We do not agree
    that the mothers concession was an acknowledgment of a material change in
    circumstances.

[17]

Moreover, the fathers broad position that a concession of this kind is
    an acknowledgment of a material change in circumstances risks creating a
    disincentive to parents to agree to make concessions and therefore risks
    increasing litigation.

[18]

As to the fathers second argument, the trial judge considered the
    fathers work arrangements. She determined that there was no evidence that the
    fathers ability to meet the needs of the children had materially changed since
    the date of the Order as a result of his changing his employment. She found
    that the father controlled his own travel schedule at the time of the Order and
    that the two jobs, before and now, are very similar. That finding was clearly
    open to her on the record and there is no basis to interfere with it.

Best Interests of the Children

[19]

Our conclusion that there is no basis to interfere with the trial
    judges finding that there was no material change in circumstances since the
    Order was made is dispositive of this appeal. It is unnecessary for us to address
    the fathers argument that the trial judge erred in finding that the existing
    parenting arrangement serves the best interests of the children.

Disposition

[20]

We deny leave to admit the fresh evidence and dismiss the appeal.  We
    urge the parties to resolve the issue of costs of the appeal.  If they are
    unable to do so, they may provide brief submissions to the court within 30
    days.

Alexandra
    Hoy A.C.J.O.

David Brown J.A.

Grant Huscroft J.A.


