



WARNING

THIS IS AN APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

AND IS SUBJECT TO S. 45 OF THE ACT WHICH
    PROVIDES:

45(7)  The court may make an order,

(a) excluding a particular media representative
    from all or part of a hearing;

(b) excluding all media representatives from all
    or a part of a hearing; or

(c) prohibiting the publication of a report of the
    hearing or a specified part of the hearing,

where the court is of the opinion that the presence
    of the media representative or representatives or the publication of the
    report, as the case may be, would cause emotional harm to a child who is a
    witness at or a participant in the hearing or is the subject of the proceeding.

45(8)  No person shall publish or make public
    information that has the effect of identifying a child who is a witness at or a
    participant in a hearing or the subject of a proceeding, or the childs parent
    or foster parent or a member of the childs family.

45(9)  The court may make an order prohibiting the
    publication of information that has the effect of identifying a person charged
    with an offence under this Part.




COURT OF APPEAL FOR ONTARIO

CITATION: N.L. v. R.R.M., 2016 ONCA 915

DATE: 20161205

DOCKET: C61823 & C62184

Weiler, Blair and van Rensburg JJ.A.

BETWEEN

N.L.

Applicant (Respondent on Appeal)

and

R.R.M.

Respondent (Appellant)

and

D.M. and M.M.

Children (Respondents on Appeal)

and

Chief of Police
Toronto Police Services

Third Party (Respondent on Appeal)

Gary S. Joseph, Elissa H. Gamus and Meghann P. Melito,
    for the appellant

Michael J. Polisuk, for the respondent N.L.

Jesse L. Mark and Emily Chan, for the respondents D.M.
    and M.M.

Sharon C. Wilmot, for the respondent Toronto Police
    Services

Heard: September 22, 2016

On appeal from the order of Justice Craig Perkins of the Superior
    Court of Justice, dated December 19, 2015, with reasons reported at 2016 ONSC
    809, 76 R.F. L. (7th) 428.

Weiler J.A.:

[1]The motions
    judge granted a motion to change a final custody order with respect to two
    boys, M.M. and D.M., born in 1997 and 1999 respectively. The appellant father
    appeals and asks this court to reinstate the prior final custody order granting
    him exclusive custody of D.M. He also appeals a related change order relieving
    the Toronto Police Services Board from enforcing the provisions of the custody
    order. By way of cross-appeal, the younger son, D.M., seeks a declaration that
    he has withdrawn from parental control and is therefore no longer a child of
    the marriage for whom a custody order can be made.

[2]For the
    reasons that follow, I would dismiss the appeal as well as the cross-appeal.

A.

Facts

[3]The
    appellant father and respondent mother were married in 1996. They initially
    separated in November 2005, but reconciled in August 2006. They separated
    finally in January 2012. The sons remained in the mothers primary care
    throughout the three years following the separation.

[4]The parties
    submitted their parenting and some economic issues to a senior family law
    specialist for mediation and arbitration. The arbitrator conducted a hearing in
    September and October 2014, which lasted 14 days, 12.5 of which were spent on
    parenting issues.

[5]The
    arbitrator found that each parent had been verbally aggressive and physically
    violent. Between 2005 and 2012, the father was charged with assault three
    times. He was acquitted on each charge. The mother was charged with assaulting
    the father in September 2012. She was convicted, but was successful on appeal.
    Although a new trial was ordered, the Crown elected not to proceed.

[6]The
    arbitrator found that the fathers relationship with his sons was seriously
    damaged by a campaign of parental alienation by the mother. Relying on
    uncontroverted evidence from clinical psychiatrist, Dr. Goldstein, and custody
    assessor, Barry Brown, that the price of the boys not seeing their father is
    too high, he concluded that the children deserved the opportunity to have a
    relationship with both their parents and extended families. Thus, in his award
    on January 16, 2015, the arbitrator awarded custody of the children to the
    father. The father was to take the boys to attend the Family Bridges Program,
[1]
an educational and experiential program which aims to resolve issues between
    parents and alienated children.

Although
    it was unclear whether the award would have the intended result, the arbitrator
    held, [I]t is my statutory duty as I see it, to take such steps as I feel are
    reasonable and necessary to give the relationships the best chance of success.
    Following the January 16, 2015 award, the arbitrator entertained further
    submissions on the detailed, operative terms that should be put into a further
    award governing the parenting arrangements during the Family Bridges Program,
    including no contact with the mother or any of her relatives. He released an award
    outlining these operative terms on February 11, 2015.

[7]On February
    17, 2015, Justice Goodman made an order on consent incorporating the terms of
    the arbitral award. The order by Justice Goodman provided that the father was
    to have sole custody of the parties two sons, M.M. and D.M. It also required
    the children to attend the Family Bridges Program with the father and ordered
    the Toronto Police Services, and other police forces to assist as required to
    enforce the provisions of the order and specifically to take all such action
    as is required to locate, apprehend and deliver the children to the
    Respondent.

[8]Neither
    party appealed or sought judicial review of the arbitrators awards.

[9]The January
    16, 2015 arbitral award directed the parties not to inform the children of the
    arbitrators decision. The February 11, 2015 arbitral award reiterated this
    requirement. On February 17, 2015, the children came to the arbitrators office
    and were informed of the decision. The father claimed the children did not
    appear surprised, while the mother denied she told the children the terms of
    the January 16 award. The father alleged that as D.M. was leaving the building
    with his father to head to the Family Bridges Program, M.M. said to his younger
    brother, Remember the plan and told him to hide until he turned 16. Neither
    of the sons denied this. The mother denied there was a plot to defeat the
    arbitral award.

[10]

On leaving the building, D.M. ran off and disappeared. He went to his
    brother, M.M.s apartment. His mother went there, picked him up, and drove him
    to a police station. D.M. told the police he did not want to return to the
    father, but the police turned him over to the father upon seeing the court
    order from that day.

[11]

The father and D.M. got in the car to travel to the Family Bridges
    Program. The motions judge noted the evidence was contradictory on this point,
    but D.M. got out of the car at a red light or when it slowed down for it. D.M.
    ran away and again went to his older brothers apartment. The mother saw him
    there and deposed that she told him to return to his father. D.M. refused to do
    so, saying he would rather live on the street and ran away again.

[12]

The father filed a missing person report with the Toronto and Durham
    police. D.M. called the police on February 20, 2015, saying he was not missing,
    did not wish to live with his father, and refused to give his contact
    information.

[13]

On February 23, 2015, the Chief of Police filed a motion to remove the
    police enforcement clause from the order.

[14]

Over the following months, the father received conflicting information
    from the two police forces about the investigation. The Toronto Police received
    an additional call from D.M. on April 22, 2015 and he met with police officers
    in person on May 6, 2015. The police made a note saying they were concerned for
    his safety if they enforced the custody order and closed their missing person
    investigation.

[15]

The mother brought a motion to change the custody order by awarding
    custody to her or, alternatively, that there be no custody order.

[16]

At the time of the motions judges change order in December 2015, M.M.
    was at university but resided with the mother when he was not in school. D.M.,
    age 16, lived alone in an apartment and was completing high school.

B.

Decision Below

[17]

With respect to the Chief of Polices motion, the motions judge noted
    that there were two technical procedural problems, but the case proceeded as if
    proper procedure had been followed. The motions judge found that the Chief had
    standing under either rule 14(1)-(2) or 25(19)(d) of the
Family Law Rules
,
    O. Reg. 114/99. The motions judge held that motions under those rules do not
    require a material change. The motions judge refused to deny the Chief a right
    of audience because of any reported improper actions or comments by individual
    members of the force.

[18]

The motions judge rejected the fathers arguments, made pursuant to the
Divorce
    Act
, R.S.C. 1985, c. 3 (2nd Supp.) and those invoking the Superior Courts
parens patriae
jurisdiction, in aid of his submission that the
    children were being unlawfully withheld. Instead, the motions judge concluded
    that the police enforcement clause should be removed from the order, noting
    that it was not in the childrens best interests to maintain a provision for
    physical compulsion as it was unlikely to work and would likely make it harder
    for the relationship between the father and sons to be repaired.

[19]

The motions judge next considered the parents motions for custody and
    access. He found that both sons were children of the marriage within the
    meaning of the
Divorce Act
at the time of the final custody order and held
    that, although the older son was now over 18, he might still qualify as a child
    of the marriage, at least for some purposes.

[20]

The motions judge discussed the issue of material change in
    circumstances, noting that this was a pre-requisite to the courts exercise of
    jurisdiction to change the custody and access terms of the February 17, 2015
    order.

[21]

He found that there were material changes, including:

·

The
    older son turned 18 and younger 16;

·

The
    father effectively abandoned his effort to secure custody or control of the
    older son;

·

The
    younger son physically resisted going into the fathers custody;

·

Almost
    one year has passed since the order was made and no contact had been restored between
    the sons and the father;

·

Both
    sons appeared before the court to assert they cannot be compelled to go to a
    reunification program, or to live where they do not want to live; and

·

Police
    were unwilling to enforce the order.

[22]

The motions judge also considered the issue of withdrawal from parental
    control. He noted that the sons stated that they wanted to establish their own
    lives, but did not show that they have set up homes of their own, struck out
    from the former family unit on a new path of associations, or made their own
    decisions about medical care. He further noted that the younger son lives in an
    apartment rented by the mother and the older son returns to the mothers home
    when he is not attending university courses. The motions judge concluded that
    the evidence did not establish that either of the sons had withdrawn from
    parental control and thus they remained children of the marriage.

[23]

Having found a change of circumstances, the motions judge held it was
    not in the childrens best interests to continue the existing custody order.
    Given the extent of acrimonious litigation between the parents he could not
    make an order for joint custody. The older son was 18 and a custody order was
    not needed for any purpose. The younger son was almost 17, had registered in
    school on his own, and did not need anyone to consent to health care on his
    behalf. Thus, for practical purposes he did not need a custody order either. The
    motions judge decided to make no custody order. At para. 150 of his reasons, he
    stated:

To be clear, my decision is that no person has custody or
    access rights over either of the sons under any statute or under any non statutory
    jurisdiction of the court. Each of the sons is his own master in that respect.

[24]

The motions judge further held that the parents did not have any right
    to secure information from providers of medical or educational services, or
    from each other. Access to information about each son was entirely within D.M.s
    and M.M.s own control.

C.

Issues

[25]

The major issues in this appeal can be characterized as follows:

1.

Did the motions judge err in finding a material change of circumstances?

2.

Did the motions judge err in changing the custody order from Justice
    Goodmans February 17, 2015 custody order?

3.

Should the children be ordered to attend the Family Bridges Program? Did
    the motions judge err in finding that the Family Bridges Program was a medical
    treatment under the
Health Care Consent Act, 1996,
S.O. 1996, c. 2
    that required the childrens consent?

4.

Did the motions judge err in removing the police enforcement clause from
    the order?

5.

Have the children withdrawn from parental control (raised on
    cross-appeal)?

D.

Analysis

(1)

The motions judge did not err in finding a material change of
    circumstances

[26]

A court cannot vary a custody or access order absent a change in the
    condition, means, needs or other circumstances of the child, as required by
    s. 17(5) of the
Divorce Act
.

[27]

The fathers preliminary argument is that the trial judge erred in not
    ordering a full hearing. Such a hearing was required to determine whether there
    had been a material change in circumstances, rather than relying on conflicting
    affidavit evidence.

[28]

It does not appear from the record that any party sought to question the
    other on their affidavit evidence. Moreover, there are no significant
    credibility findings required to be made. I would thus dismiss this preliminary
    argument.

[29]

The fathers first argument is that the trial judge erred in finding a
    change of circumstances. He submits that the change of circumstances found is
    not in accordance with the decision of the Supreme Court of Canada in
Gorden
    v. Goertz
, [1996] 2 S.C.R. 27, at paras. 10-13. That decision states that
    there are three components to a material change of circumstances: 1) a change
    in the condition, means, needs or circumstances of the child and/or or the
    ability of the parents to meet those needs; 2) the change must materially
    affect the child; and 3) the change was either not foreseen or could not have
    been reasonably contemplated by the judge who made the initial order.

[30]

The father submits that it was foreseeable that the children would age,
    and the other factors that the trial judge mentioned all go to the ongoing
    conflict between the father and D.M. It was foreseeable that D.M. would resist
    being in the custody of his father and going into the Family Bridges Program.
    There was no material change in circumstances as the relationship between the
    father and D.M. had not changed. The trial judge did not give sufficient weight
    to the arbitrators decision in finding that there had been a material change
    of circumstances. The arbitrator found that the relationship between the
    children and their father had been good at one time and that the Family Bridges
    reunification program was the last opportunity to salvage the relationship.
    There was evidence that it was not in the long term best interests of the
    children not to have a relationship with their father. Self-help is not to be
    encouraged. Enforcement of the consent court order embodying the arbitrators
    decision is essential to respect the rule of law.

[31]

The father seeks to isolate the individual factors found by the trial
    judge which, considered as a whole, amount to a change of circumstances. In
    considering whether there had been a change in the condition, means, needs and
    circumstances of the child, the trial judge was entitled to look at the
    intervening circumstance, namely that the younger son ran away and went
    underground. What the father seeks to have us do is take a different view of
    the evidence that was before the trial judge. While resistance to the consent
    custody order was foreseeable, what was not foreseen was the extreme resistance
    by D.M. He put his health and safety at risk in opposing the custody order and
    the evidence indicated he would continue to do so. The fact that D.M. was now
    over 16 meant that he had a greater capacity to frustrate the consent custody
    order. The trial judge did not err in holding that there had been a material change
    of circumstances.

(2)

The motions judge did not err in changing the custody order

[32]

The fathers second argument is that the trial judge erred in concluding
    that the risk to D.M. of continuing the custody order in his favour outweighed
    the impact on him if he did not develop a relationship with his father. He
    submits that parental alienation has been found to be akin to emotional abuse
    and is not in D.M.s long term best interests. It was an error for the trial
    judge to rule based on the wishes of D.M. because his voice is that of an
    alienated child, not an independent voice. The father submits that the best interests
    of D.M. require reinstatement of the final order.

[33]

In support of his submission, the father cites a number of decisions
    in which he argues the
court ignored the childs
    wishes because those wishes were irreparably tainted by the alleged parental alienation.
    See, for example,
L. (A.G.) v. D. (K.B.)
, 93 O.R. (3d) 409
    (C.J.), at paras. 143-149;
Pettenuzzo-Deschene v. Deschene
, 40 R.F.L. (6th) 381 (Ont. S.C.), at para. 55;
Tock
    v. Tock
,
[2006] O.J. No. 5324
(Ont. S.C.),
    at paras. 121-123;
O. (C.) v. O. (D.)
, 2010 ONSC 6328, at para.
    16;
Decaen v. Decaen
,

2013 ONCA 218, 303 O.A.C. 261, at
    paras. 42, 44-45.

[34]

The fathers submissions are in essence the same submissions he made
    before the motions judge. At para. 140 of his reasons, the motions judge gave
    his conclusions on this issue as follows:

The wishes of an alienated child may be warped and
    misconceived, but they are nonetheless real. The father says that the
    childrens wishes should be disregarded, because they are not truly the
    childrens own wishes. At this point, does that really matter? The expressed
    wishes are strong, consistent, and long lasting, and they have been acted on by
    the children in defiance of the authority of both parents, the arbitrator, the
    police, and this courts order. The fact is that the current custody order in
    favour of the father has not worked.

[35]

The motions judge acknowledged that the arbitrator accepted the expert
    evidence that the father had one last chance, in the form of the Family Bridges
    residential reunification program, to rebuild a relationship with his sons.
    That last chance opportunity had regrettably been missed. He was convinced that
    D.M. would go into hiding and drop out of school again if he renewed the
    custody order in favour of the father. It would not be in D.M.s best interests
    if his education and career options were disrupted. The motions judge also
    observed that the two sons were bonded to each other, the mother and her
    family. Were he to enforce the order the sons would have no family, not even
    each other (while following the Family Bridges Program). He was of the opinion
    that it was not in the childrens best interests to maintain these barriers any
    longer. The motions judge was also of the opinion that renewing the existing
    custody order would likely only serve to strengthen the childrens opposition
    to it.

[36]

I agree with the fathers submission that the jurisprudence indicates
    the wishes of the child and the best interests of the child are not necessarily
    synonymous. However, the motions judge referred to this existing jurisprudence
    as well as the jurisprudence that, as a practical matter, older children will
    make their own residential choice: see,
Supple v. Cashman
, 2014 ONSC
    3581, 45 R.F.L. (7th) 273 (S.C.), at para 17;
Ladisa v. Ladisa
(2005),
    11 R.F.L. (6th) 50 (Ont. C.A.), at para 17. The motions judge carefully
    considered the fathers submissions and gave cogent reasons for rejecting them,
    having regard to D.M.s best interests. In the absence of any palpable and
    overriding error in the exercise of his discretion, which has not been
    demonstrated, this court cannot intervene in the change of the custody order.

(3)

Disposition on remaining issues on appeal

[37]

My decision makes it unnecessary for me to consider the issue of whether
    D.M.s forced participation in the Family Bridges Program amounted to treatment
    and required his consent under the
Health Care Consent Act, 1996
.

[38]

As the fathers request to reinstate the original custody order in his
    favour with respect to D.M. has been dismissed, his appeal of the motion
    judges decision removing the enforcement clause in the custody order at the
    behest of the Chief of Polices must also fail.

[39]

The appeal is dismissed.

E.

The Cross-Appeal

(1)

The motions judges order effectively grants the relief requested

[40]

Both D.M. and M.M. seek an order that no person has custody or access
    rights over either of them as well as an order that no person may force them to
    attend or participate in the Family Bridges Program. The father did not appeal
    the motions judges order in respect of M.M. In dismissing the fathers appeal
    with respect to D.M., above, this court affirmed the motions judges order that
    no person has custody or access rights over him. It follows that no person has
    custody or access rights over D.M. or M.M. and neither can be forced to attend
    or participate in the Family Bridges Program. Thus, this requested relief has
    already in effect been granted.

(2)

No additional declaration on D.M.s withdrawal is required; the motions
    judges declaration stands

[41]

D.M. also seeks a declaration that he has withdrawn from parental
    control and has all of the statutory and common law rights of an independent
    minor.

[42]

Section 2(1) of the
Divorce Act
defines a child of the
    marriage. For ease of reference the relevant portion is as follows:

Child of the marriage means a child of two spouses or
    former spouses who, at the material time,

(a) is under the age of majority and who has not
    withdrawn from their charge

[43]

The motions judge held at para. 127 of his reasons that, There must be
    some credible evidence of withdrawal from or resistance to the authority of
    both parents. On the evidence before him, he was not persuaded that either of
    the sons had actually withdrawn from their parents charge or from parental
    control. He concluded that they remained children of the marriage.

[44]

The father submits that, as the motions judge held, a child cannot
    unilaterally withdraw from the control of one parent thereby removing the
    courts jurisdiction to make a custody order over him with respect to that
    parent. Nor can a child who is being supported by a parent be said to have
    withdrawn from that parents control. The fathers position is that D.M.
    remains a child of the marriage and the motions judge had to make a custody
    order. He says that he is the only person in whose favour a custody order can
    be made having regard to the mothers conduct in alienating D.M. from him.

[45]

I disagree that the motions judge was obliged to make a custody order.
    Section 16(1) of the
Divorce Act
provides:

A court of competent jurisdiction
may
, on application by either or both
    spouses or by any other person, make an order respecting the custody of or the
    access to, or the custody of and access to, any or all children of the
    marriage. [Emphasis added.]

[46]

Even assuming that D.M. continues to be a child of the marriage over
    whom the court has jurisdiction to make a custody order, s. 16 does not oblige
    the court to make an order. The use of the word may is indicative that the
    court has a discretion which it may or may not choose to exercise. The motions
    judge was entitled to exercise his discretion as he did and decline to make any
    order as to custody. Although such orders are rare, they do exist: see, for
    example,
McBride v. McBride,
2013 ONSC 938 (S.C.),
Sharpe v.
    Sharpe
, 14 R.F.L. 151 (Ont. S.C.).

[47]

After rescinding the custody order in favour of the father, the motions
    judge did not simply refuse to exercise any jurisdiction that he had. Paragraph
    2 of his December 19, 2015 order states:

There shall be no order respecting the custody of or access to
    M.M., born July 30, 1997, and M.D., born March 11, 1999 under any statute or
    any non-statutory jurisdiction of this court.

[48]

Thus, the presumptive custody provisions contained in s. 20 of the
Childrens
    Law Reform Act
, R.S.O. 1990, c. C.12 that apply in the absence of a court
    order or separation agreement have been altered by the courts order. In this
    regard I note that s. 20 (7) of the
Childrens Law Reform

Act
states:

Any entitlement to custody or access or incidents of
    custody under this section is subject to alteration by an order of the court or
    by separation agreement.

[49]

D.M. agrees with the motion judges order insofar as it does not grant
    any person custody of or access to him. Nonetheless, he seeks, A declaration
    that D.M. has withdrawn from parental control and has all of the statutory and
    common law rights of an independent minor.

[50]

In support of his submission D.M. relies, in part, on the decision of
    Kiteley J. in
Glegg, Re
, 2016 ONSC 5292, granting similar declaratory
    relief. That decision is under appeal to this court and the reasons are yet to
    be released.

[51]

Insofar as declaratory relief is concerned, I note that the
    jurisprudence is to the effect that the Superior Courts jurisdiction to grant
    declaratory relief is not to be exercised in a vacuum; a court must have a
    reason to exercise its discretion to grant declaratory relief; where
    legislation exists dealing with the subject matter, the court should consider
    whether a legislative gap exists that would give rise to a jurisprudential
    reason for exercising the courts discretion to grant declaratory relief. See,
    for example,
Danso-Coffey v. Ontario
, 2010 ONCA 171, 99 O.R. (3d) 401,
    at paras. 30-32; Donald J. M. Brown, Q.C. & the Honourable John M. Evans,
Judicial
    Review of Administrative Action in Canada
, loose-leaf (2016-Rel. 3),
    (Toronto: Thomson Reuters Canada Ltd., 2013), at p. 1-77. A declaration can
    only be granted if it will have practical utility in settling a live
    controversy between the parties: see
Daniels v. Canada,
2016 SCC 12, 395
    D.L.R. (4th) 381, at para. 11,
Khadr v. Canada (Prime Minister)
, 2010
    SCC 3, [2010] 1 S.C.R. 44, at para. 46; Brown and Evans, at p. 1-73. None of
    this jurisprudence was the subject of submissions before us.

[52]

In any event, in my opinion, para. 2 of the motions judges order is a
    declaration. It is not the precise wording that D.M. seeks. However, D.M. has
    not shown that the motions judge erred in principle in exercising the inherent
    discretion of a Superior Court judge to make the declaratory order he did.
    Accordingly, I would dismiss the cross-appeal.

F.

Costs

[53]

No costs were ordered by the motions judge at first instance. In the
    event that this court held the motions judge wrongly exercised his discretion
    in not awarding costs, he would have awarded the mother costs of $12,500.

[54]

At the conclusion of this appeal, counsel advised the court of a wish to
    make submissions in writing once these reasons had been released. Accordingly,
    any party seeking costs shall serve costs submissions within ten days of the
    release of these reasons on the party from whom costs are sought. Responding
    submissions are to be served within a further ten days. There are to be no
    reply submissions. Submissions are limited to two pages not including a Bill of
    Costs on a partial indemnity scale which may be attached.

Released: R.A.B. December 5, 2016

K.M. Weiler J.A.

I agree R.A. Blair J.A.

I agree K. van Rensburg J.A.





[1]
The Family Bridges Program, or Family Bridges: A Workshop for Troubled and
    Alienated Parent-Child Relationships is an educational and experiential
    program which aims to resolve issues between parents and alienated children. According
    to the award of the arbitrator, Herschel Fogelman, dated February 11, 2015, in
    this particular case, the Program was meant to assist the children in adjusting
    to living with their father as the custodial parent.
The
    Program includes a workshop phase, generally lasting four days, with their
    protocol including an unstructured vacation following the workshop, generally
    five to seven days in duration.
There may be follow-up counseling with
    an Aftercare Specialist as designated by the Family Bridges team leaders.


