Case Law Review – The Power of Clear Expectations in Resolving Parenting Disputes

I want to share a recent decision demonstrating the power of clear expectations. How can we implement this amazing tool in parenting dispute resolution? 

I.A. v. M.Z., 2019 ONCJ 780 (CanLII) is a Motion to Change decision of Justice Sherr changing an initial final trial order – also of Justice Sherr – at 2016 ONCJ 615 (CanLII). 

(a) The trial decision

The parties had a brief, tumultuous relationship. The evidence demonstrated that the father was abusive, controlling and “displayed erratic conduct”. One notable event occurred after separation, at the end of an access visit, when the father unbuckled the newborn child’s car seat (with the child in it) and jumped out of the (thankfully, slowly) moving car the mother was driving. Another time, as is any family professional’s nightmare, the father approached the mother after attending a case conference at court, breaching various criminal and family orders. 

At the time of the 2016 trial, their daughter was two years old. The father had not seen the child for over a year. The last prior times of supervised access, the prior year, the child had cried inconsolably.

At trial, Justice Sherr found that granting any access to the father was not in the child’s best interests at that time. The court found that 

A starting point to assess a child’s best interests when making an access order is to ensure that the child will be physically and emotionally safe [and] that his or her caregiver be physically and emotionally safe. The evidence demonstrates a disturbing pattern of violent and unstable behaviour by the father. 

…

Any access order would risk destabilizing the mother and the child. This is not in the child’s best interests. The benefits of starting access at this time are outweighed by the detriments to the child. This is an exceptional case where a no-access order is in the child’s best interests.

The “…” in the middle of the quote above actually skips about 25 paragraphs of detail of the father’s behaviour. The detail is important, as the court then provides the remedy in line with the father changing his behaviour. Justice Sherr states the following, worth repeating verbatim:

“[88]      This does not mean that the father should never have access to the child. It is the court’s hope that the father can take constructive steps in his life which would give the court some assurance that access will benefit the child. The court hopes that the father and the child will eventually have a positive relationship.

[89]      The court notes that the father expressed a strong desire to have a relationship with the child and improve his conduct. At this stage though, he has to back up his words with actions.

[90]      The court has asked the father in the past to demonstrate constructive change. He has not done this yet. Now the court will put the onus on him to demonstrate that he has made positive changes before access begins. It is not in the child’s best interests to experiment with access without such changes taking place. The court will want to see the father do the following before restoring access:

a)     Have no contact with the mother for a sustained period of time.

b)  Attend for intensive counseling to address his behaviour. The counseling needs to address issues of domestic violence and possibly his own trauma.

c)    Demonstrate that he can understand the impact of his behaviour on the mother and the child.

d)   Demonstrate that he has learned and is applying healthier methods to deal with stress and frustration.

e)    Demonstrate an ability to accept responsibility for his actions and not externalize blame onto others.

f)   Take a parenting course that also addresses the impact of conflict and violence on children. Such programs are available through CCAS.

g)   Demonstrate that he can refrain from criminal behaviour.

h)   Show responsibility by paying child support.

i)  Show that he is taking constructive steps with his life, by either working, upgrading his education or taking vocational retraining.

[91]      If the father is able to take these steps over the next year, the court will consider this a material change in circumstances. If he takes these steps (and if an agreement cannot be reached with the mother), the court encourages the father to bring a motion to change the access order.”

(b) The Motion to Change

The father took Justice Sherr up on bringing a motion to change in 2019, seeking supervised access toward further expanding access. The child was now five years old.

The mother took the position that the motion to change should be dismissed since the father had yet to meet the expectations as set out in the first trial decision. In words we can all relate to: 

“Put simply, the mother does not trust the father and does not believe that he has changed. She submits that he has learned the right words to say to convince professionals and the court that he has changed, but his actions show that he is the same person as before – someone who is a danger to her and the child.”

(Interestingly, the court later noted there was in fact some merit to this contention.)

There were two hearings. In the first, evidence was lead on whether the father met a threshold of material change in circumstance. The Court found that the father had satisfied enough but not all of the expectations, commenting: 

“the expectation in the first trial decision was for the father to make reasonable progress – the standard wasn’t perfection.” 

but

“just because [the Court] was moving to a best interests analysis, it did not mean that access would necessarily be in the child’s best interests. The court indicated that it would need to hear much more evidence to evaluate this, such as…”

Ultimately concluding (I love this quote):

“The evidence showed that the father has made positive changes in his life – not to the extent that he believes he has made, but more than the mother gives him credit for.”

The court, very carefully, granted limited supervised access, the first six visits for one hour to allow the child to adjust to the visits and the subsequent visits for two hours. The court provided that these visits must take place for one year before the father can move to increase his access. Additional restrictive terms were ordered.

The court then went on to list further expectations, stating “These expectations are not court orders, but compliance will be an important consideration if the father moves to increase access in the future.” Those expectations included:

“a) He will attend and complete a parenting course with a domestic violence component and provide the court with a letter from the service provider setting out his attendance and what was taught in the program.

b)  He will continue to attend counseling with [his therapist] and provide a report from her about his attendance and what was accomplished in the sessions. The court has set out its concerns above about the therapy the father is receiving. However, the court recognizes that it was difficult for the father to take this step, that he has formed a therapeutic alliance with [his therapist], that the therapy is culturally appropriate for him … and that the therapy has helped him to make positive gains in his life.

c) The father shall provide a copy of this decision to [his therapist]. It is hoped that she will thoroughly read both this decision and the first trial decision so that she can provide the best possible therapy for the father.

d) He is to continue to have no contact with the mother.

e) He is to refrain from criminal or violent behaviour.

f) He is to continue to pay the court-ordered child support.”

The upshot of this decision are the words “to take this step” and “continue” within the list above. The initial order provided, not in Court Order form, clear expectations toward a desired goal. The net result was that the father was motivated to follow those expectations. 

(c) Final Orders Subject to a Material Change v Review Orders

It is worth noting here that Justice Sherr was providing the father a substantive “roadmap” toward changing a final order, having regard to what was known now. The roadmap are parameters to a trigger. 

This roadmap is in some ways similar to a review order, with a fine difference. Strictly speaking, a review order is a final order where the order can be revisited without a party needing to show a material change in circumstances since the initial order, usually required in law. Instead, reviews tend (but not always) to be tied to a fixed date, where the future is not known and the parties cannot wholly agree on how the future will turn out. In spousal support disputes, for example, parties can disagree how long it will take for a party’s ability to become self-sufficient. With parenting, review orders are found with very young children, where parties may agree to a limited parenting schedule and ‘punt’ the issue of increased access when the child is older (but where increased age may not itself be the basis of a material change). 

Obviously, punting an issue may be – and often is – mere delay of the current conflict. This issue was identified by the Supreme Court in Leskun and said plainly the problem with most negotiated review clauses is that they purposefully do not state explicit expectations since those expectations are not agreed to. 

For our purposes, a review order misses the point: the expressly stated work done from the time of the first agreement/order is the change that drives the second.  Consider that the use of expectations can play a substantial role in resolving interim issues, such as moving a temporary parenting schedule toward a final one.

(d) The Power of Clear Expectations in resolving disputes

Based on I.A. v. M.Z., we can draw some general parameters for the effective use of expectations in resolving disputes. It appears expectations will likely work best where all of the following three elements exist:

1. A change of existing circumstances is desired by at least one party;
2. Before those circumstances can be changed, current terms can be agreed/imposed that will keep the peace (relative to the relevant issues); and
3. Realistic goals can be agreed to that promote the chances of success.

1. A change of existing circumstances is desired by at least one party

It’s trite that in a family law dispute, one party is not satisfied with the existing circumstances. Here, the sole issue was access and the father was truly seeking to establish a relationship with his daughter.

But not all parties nor situations call for change. Legally, some issues are always final and not subject to change, such as a property settlement or lump support.  There are some issues that, even if changeable, there is no realistic prospect of pursuing a change: For example, in I.A. v. M.Z. there was no demand to change the final order on custody. Further, some parents may not pursue change even where it is available, for many typical reasons: cost, conflict avoidance, other priorities. 

1. Before those circumstances can be changed, terms can be agreed/imposed that will keep the peace (relative to the relevant issues)

When future change is possible, it may be easier to have parties agree to current terms which, although unpalatable, are perceived as both temporary and as a means to a foreseeable end. 

As a dispute resolution tool, the terms on the “now” can be used as a consensus building project before discussing the more sensitive conditions for change. For example, even in Justice Sherr’s initial trial decision, the father agreed to a civil restraining order against him. 

Likewise, it is reasonable to expect that parties may condition accepting certain “now” terms based on the perception that a change in these terms can occur upon reaching an agreed goal. This can be a “chicken/egg” conundrum: what to discuss first? Legally, as Justice Sherr’s decision logically progressed, we’d start with the now and proceed with discussing future change. Practically, a course of a negotiation will likely follow based on perceived litigation risks and on which party has the onus for change. For example whether orders or agreements exist already and whether the onus is on the party seeking to move away from the order, or if a party is reacting to the other party’s unilateral action and the unilateral action requires justification. 

1. Realistic goals can be agreed to or fixed that promote the chances of success

Justice Sherr’s decision discussed expectations in context of removing restrictions on access. The very discussion of imposing restrictions is fraught with blame: is the one seeking restrictions truly looking out for the child’s best interest or are they simply asserting control over the other party?

However, that same conversation can be viewed from the perspective of “reality checking” unrealistic expectations: is the one seeking restrictions willing to discuss any future where the current terms can be changed? If no, as in Justice Sherr’s decision, then perhaps out of court resolution may not be the appropriate venue to resolve the dispute. 

If yes, what are their parameters – what would be needed (from the other party) that will convince them that the terms should be changed? How do they relate to the restrictions sought to be imposed?  Are they willing to assume Justice Sherr’s “reasonable progress” standard as opposed to perfection in compliance?  And for the one seeking the change, what are they willing to do to reasonably convince the other that their concerns are being addressed – even if you don’t believe they are warranted?

(e) Conclusion

Invariably, parties may not find much, if any, consensus on what actions (or forebearances) will satisfy a change to current circumstances. Yet, the discussion can still be productive. As always, consider that even if there is no result, the conversation itself models problem solving thinking. Further, smaller steps can be agreed to, on a without prejudice basis. The one seeking to impose restrictions can be suggested to consider other concessions that still satisfy a more nuanced expression of their concerns. The one seeking the change can be suggested to consider (unilaterally) undertaking a trust-building action, at the least to evidence at court – if not to the other party – their good faith intent for change. That is exactly what happened in I.A. v. M.Z., with measurable progress at the motion to change having regard to the effort put in, and continued goal building toward the next phase.