



COURT OF APPEAL FOR ONTARIO

CITATION: Koetsier v. St-Denis, 2018 ONCA 477

DATE: 20180522

DOCKET: C64885

Lauwers, Benotto and Nordheimer JJ.A.

BETWEEN

Mark Koetsier

Applicant (Appellant)

and

Carmen St-Denis

Respondent (Respondent in Appeal)

Michelle Kropp and Kenneth Peacocke, for the appellant

Réjean Parisé, for the respondent

Heard and released orally: May 18, 2018

On appeal from the judgment of
    Justice R.D. Gordon of the Superior Court of Justice, dated January 3, 2018
    with reasons reported at 2018 ONSC 60.

REASONS FOR
    DECISION

[1]

This appeal comes to this court as a result of an anomaly in the
Courts
    of Justice Act
whereby certain appellants have two appeals as of right in child
    custody matters. Consequently, this court is called upon to consider an order
    of the Ontario Court, an appeal from which has already been dismissed by a
    Superior Court judge.

[2]

The parties are the parents of a child now age 12. They have been in
    conflict over aspects of her custody for over a decade.

[3]

In 2007, custody was awarded on consent to the respondent (mother).
    Multiple motions to change were initiated and dealt with. The litigation is
    replete with judicial pleas for the parents to stop the conflict.

[4]

In December 2015, the appellant (father) brought another motion to
    change custody. The respondent brought a motion for summary judgment requesting
    dismissal of the motion to change. The motion judge granted the respondents
    motion and dismissed the motion to change on the basis that there had been no
    material change in circumstances that affects or is likely to affect the child.

[5]

The fathers appeal to the Superior Court was dismissed.

[6]

The appellant submits to this court, as he did on appeal to the Superior
    Court, that the motion judge erred by ignoring the significance of a report
    ordered by the Ontario Court pursuant to s. 30 of the
Childrens Law Reform
    Act
, R.S.O. 1990, c. C12. He suggests that the motion judge did not review
    the full report despite undertaking to do so. He submits that the report
    authored by Dr. Ross established a material change affecting the child and that
    the motion judge erred in not so finding.

[7]

We do not accept these submissions.

[8]

First, as determined by the appeal judge, there is a presumption that
    the judge honoured his undertaking. The report would have been contained in the
    Continuing Record and available for the judge to review.

[9]

Next, we agree with both the motion judge and the appeal judge that the
    report did not assist the court as a material change in circumstances had not
    been established.

[10]

The
    report of Dr. Ross makes it clear that the conflict between the parents
    together with the respondents anger to the appellant are negatively impacting
    the child. The conflict was well known to the courts as far back as 2010. The
    law has long been established that a continuation of parental conflict does not
    amount to a material change in circumstances: see
Litman v. Sherman
,

2008 ONCA 485.

[11]

Regarding
    the respondents anger, Dr. Ross reported that the respondent did not
    appreciate the effects on the child of her unresolved anger. The mother then
    took steps to de-escalate the demonstrations of anger. She enrolled in Our
    Family Wizard, increased the appellants time with the child, withdrew her
    outstanding contempt proceedings and participated in counselling.

[12]

On
    this basis, we agree with the appeal judge who stated at para 50:

Where, as here, there is
    unequivocal evidence that the cause of the change in condition of the child has
    been identified and reasonable steps have been taken to address the cause there
    is not material change in circumstances nor any requirement of a trial to
    determine the issue.

[13]

For these reasons, the appeal is dismissed with costs payable to
    the respondent fixed in the agreed upon amount of $10,000
inclusive of disbursement and HST.

P.
    Lauwers J.A.

M.L. Benotto J.A.

I.V.B.
    Nordheimer J.A.


