Yue v. Earl-McIntyre (2001), O.T.C. 85 (C.S.)

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  • Date: 2024

Ontario Supreme Court Yue v. Earl-McIntyre Date: 2001-02-06
Carl Yue, Appellant and

Lisa Earl-Mclntyre, Respondent

Ontario Superior Court of Justice

Himel J.

Heard: January 16, 2001

Judgment: February 6, 2001 Docket: 00-FA-8965

Mireille J.S.M. Landry, for Appellant Norma Walton, for Respondent Himel J.:


[1]   1 The father, Carl Yue, appeals the decision of the motions judge in the court below which granted summary judgment and varied the access arrangements concerning his son, Stephen Carl Earl-Yue. The mother, Lisa Earl-McIntyre, asks that the appeal be dismissed with costs.


I.  Factual Background:
[2]   2 Carl Yue and Lisa Earl-McIntyre cohabited and had one child, Stephen, who was born on March 8, 1993. Within five months, the mother moved to Toronto from Ottawa with the child. The father, whose work is in Ottawa, has remained there. Ms. Earl-McIntyre has now married and has a child of that relationship. While the father says that he always wanted to have joint custody of Stephen, he agreed to orders in 1995 which gave custody to the mother and access to him on weekends. On April 17, 1996, the parties on consent entered into a final order granting sole custody to the mother, extended access to father one weekend every four weeks, with pick-up Friday evening or Saturday morning and drop-off on Sunday at 5:00 p.m. There was to be additional access at Christmas, Easter, Thanksgiving and during the summer months.


[3]   3 The father claims that in 1998, things began to go off the rails. After access was denied for three months, he brought a motion for contempt returnable on December 15, 1998. The mother commenced a cross-motion to suspend access alleging the father had cancelled or did not show up for access 85% of the time. These two proceedings led to a series of court attendances which created even more conflict between the parties. On February 24, 1999,  the Honourable Justice Main of the Ontario Court of Justice dismissed the motion for contempt and ordered access every fourth Saturday from 10:00 a.m. to 6:00 p.m. He also ordered the Children’s Lawyer to prepare a report pursuant to s. 112 of the Courts of Justice Act. The assessment took a few months to complete. On November 8, 1999, the court considered the report of the Children’s Lawyer, dismissed the motion of the father for joint custody and recommended counselling to the parties. On March 1, 2000 the parties attended a settlement conference. There was much disagreement about the recommendations of the Children’s Lawyer and discussion about ways to advance the case. The options of a trial or a motion for summary judgment were canvassed and the parties agreed to the motion procedure.


[4]   4 On May 4, 2000, Justice Main entertained a motion for summary judgment brought by the mother. The court had the benefit of numerous affidavits of the parties, the report of the Children’s Lawyer, and from case management of the file, a thorough knowledge of the history of the case.


[5]   5 The learned judge determined that there were no material facts in dispute which would necessitate a viva voce hearing. He ordered access remain as it had been in the interim order and, in particular, every fourth weekend in Toronto on Saturday from 10:00 a.m. to 6:00 p.m. and on Sunday from 10:00 a.m. to 2:00 p.m. but added that access take place on two weekends, one in July and one in December in Ottawa on Saturday from 12:00 p.m. to      6:00 p.m. and on Sunday from 9:00 a.m. to 1:00 p.m. Pick-up and drop-off in Toronto were to take place at a supervised access centre or a police station. Travel costs to Ottawa were to  be shared on an alternating basis and pick-up and drop-off would be at the hotel lobby where the mother would stay. The court ordered the parties to attend counselling at Families in Transition, or some comparable facility. The father was ordered not to bring further motions to vary the access until the costs order was paid and leave of the court was obtained. In  addition, it was required that he pay into court $300 as security for costs. Costs of the motion for summary judgment were fixed at $3,000 payable by the father within 90 days.


[6]   6 The father appeals the order granting summary judgment which resulted in a final order of access to the father under the terms set out above and the order fixing costs at $3,000 to be payable by the father to the mother.II.  The Positions of the Parties:
[7]   7 The father appeals the decision granting summary judgment on the basis that the motions judge erred in holding that there were no material facts in dispute, and that there were no genuine issues for trial. The appellant argues there were numerous facts in dispute and that there were no circumstances to find a material change in circumstances which would warrant a variation of the final order of the Honourable Justice Nevins dated April 17, 1996. The appellant argues that the order of 1996 should stand with respect to the custody and access arrangements of Stephen. He further submits that he should not be penalized with a costs order for having represented himself at the motion for summary judgment. He asks this court to reverse the decision on costs as well.


[8]   8 The respondent mother asks that the appeal be dismissed. She submits that the sole issue is access and that the evidence was clear with respect to the child’s wishes to have day access in Toronto. The respondent argues that the standard of review on appeal is such that this court can only interfere if there has been an error in principle and that deference must be given to the court below.


III.  Analysis:
1.   The Right of Access
[9]   9 The right of access is the right of the child to have access to both parents and to enjoy a healthy relationship with each parent. While the principle of maximum contact with both parents is not articulated in the Children’s Law Reform Act as it is in the Divorce Act, the  Court of Appeal has indicated in cases such as Woodhouse v. Woodhouse (1996), 20 R.F.L. (4th) 337 (Ont. C.A.) at page 353, that the principle is, nevertheless, applicable.


[10]         10 In this case, there is evidence that both parents love their child and are good and capable parents. There is no allegation of conduct that would disentitle Mr. Yue to the right of access to his son. The child is entitled to a relationship with both of his parents. The issue is what form of access arrangement is in the best interests of the child.

2.   Standard of Appellate Review
[11]         11 Counsel before me raised the issue of the appropriate standard of review in this appeal. Cases were cited by counsel for the respondent requiring “due respect” and deference to the decision of the judge at first instance. However, the key considerations in addressing the appropriate standard of review in this case is the type of motion being appealed. This is an appeal of a summary judgment motion. The traditional rationale for according deference to a trial judge is that the judge’s findings of fact are connected to and based upon the opportunity to hear viva voce testimony and observe the parties and witnesses. In a motion for summary judgment, there is no viva voce testimony and, more significantly, the judge hearing the motion is not finding facts, but rather, is determining whether or not there is a genuine issue for trial: Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161 (Ont. C.A.). On an appeal of an order of summary judgment, the appellate court must determine whether the judge applied the appropriate test and whether there was any error in its application.

3.   The Case Management System
[12]         12 Case management has been in place in the Toronto area where this case has proceeded for a number of years. A leader in the field, the Ontario Court of Justice sitting at 311 Jarvis implemented a system of assigning a judge to supervise the progress of a case, conduct case conferences and settlement conferences and hear motions. With judicial control of the case, matters have proceeded expeditiously to some type of resolution or to a decision following a trial. It is the philosophy of this initiative that expeditious justice is in the interests  of the parties and particularly, children, in family law matters. The other benefit is that one judge acquires knowledge of the case and is able to attend to management of the file through the litigation thereby ensuring consistency, reducing duplication and ultimately saving the parties and court resources a great deal of expense. The result for a case such as this matter before me is that the case management judge acquires extensive knowledge of the file through the litigation process.

4.   Summary Judgment Jurisdiction
[13]         13 The Family Law Rules. O. Reg. 114/99, came into effect on September 15, 1999. Rule 16 sets out the provisions for summary judgment and provides, in part, as follows:

16(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without  a trial on all or part of any claim made or any defence presented in the case.

16(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.

16(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

The jurisprudence under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides guidance on the application of the “genuine issue for trial” test: Children’s Aid Society of Nipissing (District) v. M. (M.) (June 27, 2000), Doc. 195-98 (Ont. S.C.J.); Children’s Aid Society of Toronto v. T. (K.) (November 28, 2000), Doc. Toronto C-644/99 (Ont. C.J.); Crawford v. Crawford (December 7, 2000), Doc. Barrie 210-00 (Ont. S.C.J.); I. (F.) v. F. (K.) (February 15, 2000), Doc. 7176/99, 7177/99, 7176/99R (Ont. S.C.J.); Bedard v. Huard (2000), 5 R.F.L. (5th) 282 (Ont. S.C.J.). These cases concerning Rule 20 are referred to below.

5.   Summary Judgment in Family Law Matters
[14]         14 Competing policy objectives are involved in considering a motion for summary judgment. The right to a hearing must be balanced against a concern for the financial and other costs associated with prolonged litigation as well as the court’s limited resources and  the desire to deal with matters expeditiously. Clear cases may be disposed of summarily if no denial of fairness results. Because of these policy considerations, summary judgment is a process that must be used cautiously with great concern for the rights of the parties.


[15]         15 Summary judgment has been granted in family law matters that amount to “the clearest of cases”: see, Catholic Children’s Aid Society of Metropolitan Toronto v. O. (L.M.) (1996), 139 D.L.R. (4th) 534 (Ont. Gen. Div.), at 559. The cases cited by counsel for the respondent involved child protection matters where the undisputed facts demonstrated unequivocally that the children were “in need of protection”.


[16]         16 Summary judgment decisions in cases of custody and access provide more guidance for the case before me. In O. (L.M.), supra, the court relied on a consideration of the availability of summary judgment in custody proceedings and cited as authority, Cress v.

Crack (February 28, 1996), Doc. Sault Ste. Marie 13,765/94 (Ont. Gen. Div.). There, at paragraphs 18 and 19, Justice Pardu stated:

There is, however, no reason in principle why summary judgment in a custody case cannot be granted. It is in the best interests of a child to have issues resolved rapidly. Section 26 of the Children’s Law Reform Act provides that a custody matter should be heard within six months after commencement of the proceedings. An ongoing custody dispute is generally stressful and difficult for children. There may be claims for custody that cannot survive scrutiny even on a motion for summary judgment, although the power to grant summary judgment in a custody action or to determine the issue on affidavit evidence should be exercised with great caution. See also: K. (J.) v. B. (A.) (July 23, 1996), Doc. Toronto D1051/95A-C1 (Ont. Prov. Div.) where the Ontario Provincial Court disposed of a custody proceeding on a summary basis.


[17]         17 In the case of Piccolo v. Picard (June 20, 1997), Doc. Sudbury D5/97 (Ont. Prov. Div.), summary judgment was granted in an access dispute before the Ontario Court of Justice (Provincial Division). The judge found that it was very clear from the affidavit material that the mother did not dispute that the father should have access to their son. The court relied upon photographic evidence and other material which refuted the mother’s allegations that the father and his extended family were neglectful of the child and had mistreated him. A summary judgment order was issued awarding graduated access to the father. The court considered the authorities on the appropriateness of summary judgment proceedings:

In coming to this decision, I carefully reviewed the reasons for judgment of Provincial Judge Joseph C.M. James in Catholic Children’s Aid Society of Metropolitan Toronto v. L.M.O.   and   M.P.   (1995),   59   A.C.W.S.   (3d)   916,   7   W.D.C.P.   (2d)   49, [1996] W.D.F.L. 650, 9 O.F.L.R. 165, [1995] O.J. No. 3971 (Ont. Prov. Div.). I also reviewed the appeal decision of Justice Sandra Chapnik, released on 6 September 1996, at (1996), 139 D.L.R. (4th) 534, 12 O.T.C. 161, [1996] O.J. No. 3018 (Ont. Gen. Div.). Both decisions review the power of a judge of the Provincial Division of the Ontario Court of Justice to grant summary judgment in family law matters, even on his or her own initiative. While the motivating factor for such a decision must be grounded in the need to act in the best interests of a child in proceedings either under the Children’s Law Reform Act, above, or the Child and Family Services Act, R.S.O. 1990, c. C-11, the need to avoid wasting valuable court resources is also a major consideration in proceeding with an application on a summary judgement basis.


[18]         18 Rule 16 of the Family Law Rules give the court specific legislative authority to utilize the summary judgement procedure when the court concludes that there is no genuine issue for trial and does not limit this authority to child protection matters. However, it remains appropriate that summary judgment jurisdiction be exercised cautiously as that is consistent with the principles of justice and the best interests of children: Children’s Aid Society of Waterloo (Regional Municipality) v. S. (R.) (December 21, 2000), Doc. Cambridge 136/96 (Ont. C.J.) at para. 25.


6.  Test for Summary Judgment
[19]         19 The jurisprudence under Rule 20 of the Rules of Civil Procedure provides guidance for interpreting the meaning of “no genuine issue for trial” and the test under Rule 16(6) of the Family Law Rules, (see, Children’s Aid Society of Nipissing (District) v. M. (M.) and other cases cited in paragraph 11, supra.)


[20]         20 In Guarantee Co. of North America v. Gordon Capital Corp. (1999), 178 D.L.R. (4th) 1 (S.C.C.), the Supreme Court of Canada concluded at page 10 that “[t]he appropriate test to be applied on a motion for summary judgment is satisfied when the applicant has shown that there is no genuine issue of material fact requiring trial, and therefore summary judgment is a proper question for consideration by the court”. See also Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (Ont. C.A.) at pp. 267-68 and Irving Ungerman Ltd. v. Galanis (1991), 4 O.R. (3d) 545 (Ont. C.A.) at pp. 550-51.


[21]         21 A “genuine issue” must relate to a material fact or facts. As was stated in Irving Ungerman Ltd. v. Galanis, supra, at 550: “If a fact is not material to an action, in the sense that the result of the proceeding does not turn on its existence or non-existence, then it  cannot relate to a ‘genuine issue for trial’”.


[22]         22 In ruling on a motion for summary judgment, the court is not to assess credibility, weigh evidence, or find the facts. The court’s role on such a motion is narrowly limited to assessing the threshold issue of whether a genuine issue exists requiring a trial: see, Aguonie v. Galion Solid Waste Material Inc. (1998), 156 D.L.R. (4th) 222, 38 O.R. (3d) 161, 17  C.P.C. (4th) 219, 107 O.A.C. 114 (Ont. C.A.). The court, however, has the duty to take a hard look at the merits of an action at this preliminary stage: Vaughan v. Warner Communications Inc. (1986), 56 O.R. (2d) 242 (Ont. H.C.).


[23]         23 A recent family law case, involving a summary judgment motion on a matter of Crown wardship, set out similar principles to those articulated in Irving Ungerman Ltd. v. Galanis, Aguonie v. Galion Solid Waste Material Inc., and Vaughan v. Warner Communications Inc. The court must review all the evidence to determine if there is a basis  for the final order sought. A proper consideration of “a full evidentiary record” is necessary for a “good hard look” at the evidence on the motion. Then the court must determine whether there are specific facts to support a triable issue. The court may then dismiss the motion, rule that there are only certain issues that require a full hearing or determine that there are no triable issues regarding the entire application: see, Children’s Aid Society of Waterloo (Regional Municipality) v. S. (R.), supra, at paras. 22 and 23.


[24]         24 In the case of Losee v. Geordiadis (1998), 36 R.F.L. (4th) 238 (Ont. Prov. Div.), Justice Nevins canvassed the test to be applied in striking pleadings and granting summary judgment in family law litigation. He noted that, once the parties get past the hurdle of the acrimony of the proceedings, “it often occurs that the substantive issues, such as support, custody or access are either not seriously in dispute or the outcome of the proceedings is predictable.” In paragraphs 18 to 33 of the decision, he considered the following criteria for determining a summary judgment motion in domestic litigation:

1.   Are there material facts before the court, in admissible form, that are not in dispute?

2.   Are any of the material facts in dispute?

3.    Is the credibility of one or more of the parties a determinative factor in resolving the dispute?

4.   Does the pleading sought to be struck contain a triable issue?

5.   Is there evidence of bad faith so demonstrative as to deny a party access to a trial?

6.   Would a contested trial impose an undue hardship on one of the parties?

7.   The Application of the Law on Summary Judgment to the Case at Bar


[25]         25 In his reasons delivered orally, the motions judge did not refer specifically to the law on summary judgment motions nor did he articulate the applicable legal test. However, I am satisfied that he applied the correct test when he held that there was no genuine issue for  trial.


[26]         26 The key background facts were not in dispute. The parties agreed that the child should have a relationship with his father. There were no allegations of misconduct relevant to the determination of access. There was no question about parenting ability and it was clear that each parent loves their child. Both parties acknowledged the difficulties posed by the fact that the parents live in different cities some distance apart. The evidence available from the Children’s Lawyer’s Report was that the child was feeling nervous and anxious and was resistant to overnight access in Ottawa with his father.


[27]         27 The facts that were in dispute related to the reasons for access not having taken place in the past. It is clear from the reasons of Justice Main that he did not consider these facts material to the court’s determination. He stated that there were “no material facts in dispute that would necessitate a viva voce hearing”: Transcript of Court Proceedings, May 4, 2000, page 22, line 4. His reasons emphasized the current reality of the situation, particularly the need to ensure the child’s comfort with the access arrangement. The facts in dispute were not material to determining an access arrangement. Similarly, there were no issues of credibility requiring a trial since the questions of credibility revolved around facts not material to the result.


[28]         28 The motions judge applied the correct test when he held there were no material facts in dispute that required a trial. Accepting the reality of the child’s wishes and the child’s anxiety about being away overnight from the mother, the outcome of the proceedings was predictable. Thus, the motion for summary judgment was based upon relevant considerations and a correct application of the law. Unique circumstances existed which would warrant the court making a determination without hearing all the witnesses and assessing credibility. There being no genuine issue for trial, the motions judge was of the view that a trial was unnecessary and granted the motion.


8.   The Variation Application


[29]         29 The result of granting the motion for summary judgment was to provide a final order which constituted a variation of the previous final access order made on April 17, 1996.


[30]         30 Section 29 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 states:

29. ORDER VARYING AN ORDER – A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.


[31]         31 In Gordon v. Goertz (1996), 19 R.F.L. (4th) 177 (S.C.C.) at 190, Madam Justice McLaughlin wrote that in a variation application, the court must be satisfied that there has been a material change in circumstances:

Before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.


[32]         32 If the threshold test is met, then the court may embark upon a fresh inquiry in order to determine whether the change impacts or potentially impacts on the child’s best interests. Section 24 of the Children’s Law Reform Act reiterates that the “best interests of the child” principle is to be applied to access issues:

24. MERITS OF APPLICATION FOR CUSTODY OR ACCESS – (!) The merits of an application under this Part in respect of custody or access to a child shall be determined on the basis of the best interests of the child. (2) BEST INTERESTS OF CHILD – In determining the best interests of a child for the purposes of an application under this  Part in respect of custody of or access to a child, a court shall consider all the needs and circumstances of the child… (Emphasis added)


[33]         33 In determining the best interests of the child, the court must consider the unique circumstances and facts of the case before it. As Abella J.A. stated in M. (B.P.) v. M. (B.L.D.E.) (1992), 42 R.F.L. (3d) 349 (Ont. C.A.) at 358:

The meaning of ‘best interests’ is as fluid as each child’s circumstances. What is certain, however, is that the focus of the exercise is on the child.


[34]         34 In the case at bar, the court did not articulate the legal test applicable on a variation application nor did the court outline that the threshold issue was met. The court would have to have found that there was a material change in circumstances which was either not foreseen or could not have been reasonably foreseen at the time of the 1996 order. While the learned justice did not clearly articulate the material change, it was obvious from his oral reasons that he considered the overnight visits, as ordered in 1996 to be contrary to the best interests of the child due to the child’s state of anxiety, the history of the access over the preceding three years and the conflict between the parties to be a material change.


[35]         35 The court below did outline its views of what was in Stephen’s best interests. Stephen had become resistant to overnight visits mainly because he was caught between two parents in endless conflict. In addition, as Justice Main articulated, Stephen is seven years  old and he is very dependent upon his mother to meet his needs and to feel safe. Justice  Main explained that if he acceded to Mr. Yue’s request, the child’s life would be disrupted. Rather, Justice Main suggested that Mr. Yue move back and give Stephen some room to become more “comfortable, to reach a stage – which, hopefully, he will, and soon – of becoming more accepting of access, other than day access, and access, other than in Toronto”. In considering Stephen’s age, level of development, emotional and other needs, the learned justice considered the best interests of the child.


[36]         36 When the court granted the motion for summary judgment, the court also made an order requiring the father to pay costs of $3,000 which related to the motion for contempt, the mother’s motion to terminate access and the mother’s summary judgment motion. The court stated:

To begin with, there was a flurry of activity, most of which was unnecessary. The whole thing could have been handled in a different fashion. If Mr. Yue had legal counsel, it would have developed in a much more orderly  fashion. (Transcript of Proceedings,   May 4, 2000, page 22, line 15) If you had spent a couple of thousand dollars with a lawyer, you may not have been facing this order for costs. Now, I have to tell you that this order is somewhere what we call party and party costs and solicitor and client costs. It’s in between and not the lower of those two amounts, because a lot of what has take (sic) place is as a result of the fact you did not have a lawyer who could have steered you through it. This court is no different from any other court. If you attend without a lawyer, you do so at your own jeopardy. And that jeopardy comes down to costs, in the end. (Transcript of Proceedings, May 4, 2000, page 27, line 27)


[37]         37 According to section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, the court has the discretion to determine costs. In his reasons, the court demonstrated its view that the father should pay costs because he wasted both the court’s and the mother’s time.


[38]         38 Costs in family law matters are treated somewhat differently than in civil cases generally. It has been the practice that costs in child welfare cases should not follow the event. That practice has also been upheld in custody/access disputes. In Talsky v. Talsky (1973), 38 D.L.R. (3d) 343 (Ont. C.A.), at 349, the court wrote:

In any event, however, since the paramount consideration in a custody matter is that of the children, the participation of the adversaries is not that in ordinary litigation. So that, except in very exceptional cases, costs should not follow the event.


(Emphasis added)


[39]         39 In the case before me, the court exercised its discretion to award costs against the appellant. The court was critical of the “flurry of activity” which may have been the result of  Mr. Yue not having legal representation. The issue before the court was Mr. Yue’s access to his son. Although he was unsuccessful on the motion, it cannot be said that he persisted with the court process in bad faith. In Davids v. Davids (1999), 125 O.A.C. 375 (Ont. C.A.) at 382, the Ontario Court of Appeal commented on the unrepresented litigants’ lack of familiarity with the court process:

Fairness does not demand that the unrepresented litigant be able to present his case as effectively as a competent lawyer. Rather, it demands that he did have a fair opportunity to present his case to the best of his ability. Nor does fairness dictate that the unrepresented litigant have a lawyer’s familiarity with procedures and forensic tactics.  It does require that the trial judge treat the litigant fairly and attempt to accommodate unrepresented litigants’ unfamiliarity with the process so as to permit them to present their case.


[40]         40 In my view, the imposition of the costs sanction of $3,000 on an unrepresented litigant which was to cover somewhere between party and party and solicitor and client costs on a motion which was brought by the respondent was excessive in the circumstances, especially given that other deterrents against future litigation were imposed at the same time.


[41]         41 In light of these factors, I am persuaded that the exercise of discretion in awarding costs should be varied. I reduce the costs order to $1,000 to be paid by March 15, 2001, failing which, no variation proceedings may be brought by the father. The order that leave is required to bring a motion for access earlier than one year and that he pay $300 as security for costs shall stand.


IV.  Decision:
[42]         42 For the reasons outlined above, I am of the view that there was no error in principle by the court below. The motions judge had extensive knowledge of the case from a number of court attendances over more than a one year period, and was in a unique position to consider the case. He had the benefit of the extensive affidavit material and the Report of the Children’s Lawyer. It was his opinion that the issue to be decided was narrow and there were no material facts in dispute which would necessitate a viva voce hearing. While there was disagreement between the parties on factual matters concerning the reasons for the apparent lack of exercise of access with the child over the last two years, the material facts were not in dispute. The court was able to conclude that the result was clear in the circumstances and that access should be as he ordered it, thereby precluding the necessity of a trial.


[43]         43 In his decision which varied the final access order of April 17, 1996, Justice Main implemented an order which reflected earlier interim orders such as the one made on February 24, 1999. As outlined above, on a variation application, the court must first be satisfied that the threshold test is met, namely that there has been a material change in circumstances and, if that is established, then the court may consider the merits of the case based upon the best interests of the child. From the oral decision given on May 4, 2000, while Justice Main did not articulate the material change in this fashion, he clearly made   reference to the concept in his reasons. No doubt the circumstances as they had evolved since 1996, including the conflict between the parents, the wishes of the child and the child’s anxiety about overnight access and the evidence of the Children’s Lawyer all were evidence of a material change in circumstances. In his decision, Justice Main applied the best interests test which involved consideration of a number of relevant factors, including the age and stage of the child, the child’s wishes, the emotional and physical well-being of the child, the need for the child to understand his cultural background and heritage and to know his extended family, his need to be part of the family where he lives the majority of the time, the fact that his father lives over four hours away and that there has not been regular overnight access since 1998, and the overwhelming conflict between his parents. In arriving at his decision, Justice Main attempted to bring stability to the child, to lessen the conflict between the parents, reduce the emotional and financial costs of the litigation, to bring certainty, consistency and security to  the child for a period of time and to involve a therapeutic component which would meet the needs of the parents and the child. While it may have been desirable to delineate clearly the legal principles applied to the case, I find the court below did not err in principle. The result at trial would have been the same as the result of the motion for summary judgment.5


[44]         44 I also agree with Justice Main that while no proceedings should be taken for a year unless they involve matters of urgency and, with leave, in one year’s time, there must be a review of the custody/access arrangements. The goal should be to reintegrate the child with the father in a normalized relationship bearing in mind the two factors of distance and conflict of the parents. In one year, the father may renew his request for overnight access and gradually move towards such access in Ottawa. There must also be a therapeutic component to assess how the child is doing with the access in the future. If the parties cannot agree on the assessor, the Children’s Lawyer should be requested to conduct an update of its report. If there are continued problems with access exchange, the services of the supervised access centre should be utilized.


[45]         45 If the parties are unable to agree on the question of costs of this appeal, counsel may make written submissions within twenty days of the release of this judgment.

Order accordingly.