Maile v. Reid: A Cautionary Tale on Interim Motions to Change Final Orders 

In an era where high-conflict parenting disputes increasingly test the limits of interim relief, Maile v. Reid, 2024 ONSC 1009, serves as a cautionary tale for Ontario family law practitioners. Justice Gibson’s decision outlines the stringent test applied to interim motions to change final orders, offering critical lessons on the threshold for variations, the nature of child support obligations, and the inappropriate use of police enforcement in parenting disputes. 

Case Background 

The parties, never married, share three children (aged 14, 10, and 7) from a “volatile” relationship spanning 2008 to 2019. A final order dated December 2018 granted the mother decision-making responsibility, established the father’s parenting time, and set child support at $805 monthly based on his income of $40,000. 

In March 2020, the father filed a Motion to Change, seeking, among other relief, to reduce child support to $300 monthly and achieve 50/50 shared custody. Rather than following the proper steps under the Family Law Rules, he brought a long motion for interim relief on all issues, a procedural misstep The Court specifically criticized. 

OCL Involvement and Alienation Claims 

Notably, in 2019, the family was referred to the Office of the Children’s Lawyer (OCL), which investigated and provided a report dated July 16, 2021. The OCL recommendations included maintaining the mother’s decision-making responsibility, gradually expanding the father’s parenting time with the youngest child (once the child felt comfortable), and implementing reconciliation counseling between the father and the oldest child following an incident where the father attempted to choke the child. 

Although the father alleged “extreme parental alienation,” Justice Gibson found “no credible evidence” that the mother had interfered with his parenting time with the two daughters. The Court observed that the son’s reluctance to spend time with his father stemmed from the choking incident, and that the recommended reconciliation counseling had not occurred. 

The High Threshold for Interim Variations 

Justice Gibson’s analysis reinforces the two stage inquiry from F.K. v. A.K., 2020 ONSC 3726, for changing custody, access, or parenting orders: 

1. First, there must be a material change in circumstances since the last order. 
2. Only then, can the Court embark on a fresh inquiry into the best interests of the child. 

The threshold for varying a final order on an interim basis is even higher. As Justice Pazaratz noted in F.K. v. A.K., the evidentiary basis must be “compelling” and demonstrate that “the changed circumstances have created a situation of actual or potential harm, danger, or prejudice for the child of such nature or magnitude” that immediate change is necessary. However, S.H. v. D.K., 2022 ONSC 1203, introduces nuance, with Justice Dambrot suggesting that exceptional circumstances beyond harm might justify a temporary variation—though no such circumstances were found in Maile. 

The Court found no material change affecting the children’s best interests. The father’s primary justification—his financial constraints—did not suffice, especially given his failure to acknowledge the rising costs of raising children alongside the general cost of living. 

Child Support as the Right of the Child 

Perhaps the most troubling aspect of this case was the father’s request to reduce child support as “retribution” for the mother’s perceived unwillingness to facilitate parenting time. Justice Gibson’s response was unequivocal: 

“The concept of ‘retribution’ in the context of child support obligations is, of course, abhorrent. It betrays a profound misapprehension on the part of the Applicant Father as to the nature of the obligation. Child support is the right of the child. It is not leverage to be applied between the parties to extract concessions or seek vengeance.” 

This statement serves as a powerful reminder that child support is not a bargaining chip in parental disputes but a fundamental right of the child. 

Financial Disclosure and Income Increase 

The Court’s analysis of the father’s financial situation revealed a significant failure to comply with disclosure obligations. Paragraph 6 of the Final Order required the father to provide his income tax returns and CRA Notices of Assessment annually to adjust child support, which he acknowledged he had not done. 

Particularly damning was the revelation that the father’s income had increased substantially since the making of the Final Order—from $40,000 to at least $53,000, without even considering his additional overtime earnings. Justice Gibson pointedly observed that “it does not lie in his mouth to now request a reduction in his child support obligations” given this increase and his non-compliance with disclosure requirements. 

Inappropriate Use of Police Enforcement 

The father sought a “police apprehension” order, proposing that if the mother withheld the children more than three times, she would “forfeit custody,” and he would gain “sole custody without visitation.” Justice Gibson firmly rejected this, stating: 

“This astonishing proposal is completely contrary to the best interests of the children. It is not child-focused, but rather entirely self-serving and caters to the partisan interests of the Applicant Father.” 

The decision reaffirms that police enforcement regarding parenting time is an exceptional remedy reserved for the rarest circumstances. Section 36(2) of the Children’s Law Reform Act “is intended to be a protection for children, not a weapon for disgruntled parents.” 

The Court also noted that the two daughters were already experiencing anxiety with respect to the father’s attempts to keep them overnight, which they did not wish to do. Involving police would only inflame an already tense situation and potentially traumatize the children further. 

Lessons for Family Law Practitioners 

Maile v. Reid offers several key takeaways: 

1. Procedural Propriety: Interim motions to change final orders should not bypass proper steps under the Family Law Rules. 
2. Evidentiary Requirements: Varying a final order on an interim basis requires compelling evidence of a material change affecting the child’s best interests. 
3. Child Support Fundamentals: Child support is the right of the child, not a tool for leverage or “retribution” between parents. 
4. Police Enforcement: Requests for police enforcement in parenting disputes should be exceptional and child-focused, with consideration of potential trauma to the children. 
5. Financial Disclosure: Ongoing financial disclosure is critical; non-compliance can severely undermine a party’s position, especially when seeking to reduce obligations despite an increased income. 
6. Alienation Claims: Courts require substantial evidence beyond mere allegations to establish parental alienation, particularly when alternative explanations for a child’s reluctance to participate in parenting time exist. 

Conclusion 

Maile v. Reid underscores that the family justice system prioritizes the best interests of children over parental rights or grievances. Final orders should generally remain in force until a full evidentiary record is established at trial or the parties reach an agreement. Practitioners would do well to review their clients’ expectations against the lessons learned in this case, ensuring motions align with procedural rigor and the child’s best interests. 

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Disclaimer: The information provided in this blog post is intended for general informational purposes only and should not be considered as legal advice. Consult with a qualified family law attorney for advice regarding your specific situation. Goldhart Mediation & Arbitration is not responsible for any actions taken based on the information presented in this blog.