ONTARIO COURT OF JUSTICE
BETWEEN:
K. M. L.
Applicant and Moving Party on Motion to Change
— AND —
G. T. O.
Respondent and Moving Party on Hearing for Contempt
Before Justice Sheilagh O’Connell
Heard on November 26, 2020, March 10, 11, 12, 13, and April 12, 13, 16, 2021
Reasons for Decision released on September 7, 2021
Rosemary Masemann for K. M. L.
Leroy Bleta for G. T. O.
O’CONNELL J.:
1. Introduction:
1Both parties have brought motions before the court regarding the child, D. L.
2D. is 8 years old and the only child of the parties.
3The Respondent mother has brought a motion for a finding of contempt against the father for failing to abide by the Final Order of Justice Ellen Murray dated March 18, 2016 and seeks an order returning the child to her care in Toronto.
4The 2016 Final Order provides that the parents have joint decision making and shared parenting of the child.
5In the spring of 2020, the father unilaterally relocated the child to Barrie, Ontario without the consent of or notice to the mother.
6The Applicant father has (six months after the relocation) brought a motion to change the Final Order. He seeks an order sanctioning the relocation of the child’s primary residence from Toronto to Barrie and that the child primarily reside with him, with regular parenting time for the mother three weekends per month as well as holidays. He does not seek a change to joint decision-making responsibility, except for decisions regarding the child’s education, which he would solely like to make.
7In her response to the father’s motion to change, the mother seeks sole decision-making responsibility for all decisions, that the child be returned to her primary residence in Toronto and that the father have regular parenting time with D. three weekends per month as well as holidays.
8The hearing required oral evidence. This matter was heard over several days, initially as a hybrid hearing, involving both in-person and video attendances, and then fully by video. There were unfortunately a number of technical difficulties that slowed down this hearing.
9There were only three witnesses in this hearing: the father, the mother, and Ms Jastinder Manchanda, a child protection worker with the Children’s Aid Society of Toronto who has worked voluntarily with the family since 2019.
2. Background Facts:
10The mother is 52 years old. She resides in Toronto. Her primary source of income is social assistance and babysitting income. She provides some babysitting services in her home. She has not worked outside of the home since the child’s birth. The mother has lived at the same address in Toronto since 2014.
11The father is 57 years old. He now resides in Barrie. He was employed at Canada Post for a number of years until 2016. In 2016, he sustained a workplace back injury and started receiving WSIB income. He has started a number of retraining programs since that time. At the time of this hearing, he continued to be unemployed and receiving WSIB for internship training.
12D. is their only child. D. was born in Toronto and lived in Toronto since birth until the father moved him to Barrie in April of 2020.
13Prior to the father’s move to Barrie, Ontario, the child lived with the mother during the week and with the father on weekends. The child’s principal residence was with the mother. The child attended school in the mother’s neighbourhood, approximately a ten-minute walk from her residence.
14The father relocated to Barrie with the child after the mother was criminally charged with assaulting the child on January 15, 2020. The child was removed from her care by the police and placed in the father’s care on that day.
15The mother’s release (bail) conditions prevented her from having any direct or indirect contact with the child, except in the “direct and constant presence of a child protection worker from the Children’s Aid Society of Toronto.”
16It is not disputed that the father did not obtain the mother’s consent prior to relocating to Barrie with the child nor did he provide her with adequate or any notice.
17The mother did not have any in-person contact with the child until mid-June of 2020. The visit occurred at a park in the presence of a child protection worker. Her parenting time with the child was gradually increased after she was able to obtain a variation of her criminal release conditions in July of 2020. She commenced these proceedings in August of 2020.
18The mother’s criminal charges were withdrawn by the Crown on January 25, 2021.
19Currently, the mother has unsupervised overnight parenting time with the child every weekend from Friday evenings to Monday mornings, pursuant to a temporary consent order dated February 21, 2021. The father drives the child from Barrie to and from the mother’s residence in Toronto each weekend.
3. The Position of the Parties:
The Father:
20The father concedes that that he did in fact breach the Final Order by removing the child from his school and unilaterally relocating to Barrie without the mother’s consent and very little notice.
21However, it is the father’s position that there was a material change in circumstances affecting the child’s best interests since the Final Order was made. Specifically, the mother was criminally charged with assaulting the child and the child was placed in his care by the police. The father states that he had lost his housing, that he could not find alternative and affordable housing in Toronto, and that he needed the support of family members in Barrie.
22The father states that he was under the impression at the time that he was entitled to make these decisions regarding the child’s school and residence after the police placed the child in his care. He further states that he was not aware that he needed to bring a motion to change the order or request the mother’s permission to relocate until he retained counsel in August of 2020.
23The father submits that is now in the child’s best interests to remain in his primary care in Barrie, Ontario and that the child is doing much better in his care. The father is not seeking a change to decision-making other than education.
24The father has serious concerns about the child’s safety in the mother’s care and does not believe it is in the child’s best interests to return to the mother’s parenting from Monday to Friday. He believes that the mother has anger issues and that she is not able to manage or cope with parenting the child during the week, particularly with her other babysitting responsibilities.
25It is the father’s position that the child is now happy, healthy, and thriving in his care, with the support of his aunt and grandmother who live close by. The child graduated from grade one with an exemplary report card, he is in a better school, and he is making new friends and creating a new community in Barrie.
The Mother:
26It is the mother’s position that there has been no material change in circumstances justifying the father’s unilateral relocation to Barrie with the child other than the changes intentionally orchestrated by the father through unlawful self-help remedies.
27The mother submits that the father reported her to the police for an incident that had occurred a month previously and which had been investigated by the Children’s Aid Society as not warranting a criminal investigation. She submits that the father was relentless in pursuing criminal charges against her so that he could obtain “full custody”, as it was then called, of the child.
28The mother was not able to commence these proceedings and seek an order for the return of the child to her care until her criminal release conditions were varied, which took several months due to Covid suspensions and delays of court operations.
29The mother states that the charges against her have now withdrawn and the father should not be able to rely upon an unlawful status quo created by him.
30The mother submits that it is in the child’s best interests to be returned to her care in Toronto. The move to Barrie has greatly impacted the child’s relationship with his mother, and removed the child from his home, school, community, and friends, where he was happy and doing well. This had been the child’s status quo for more than four years.
31The mother does not drive nor does she have a car and will therefore be entirely dependant on public transit or the father to see the child.
32However, the mother does believe that there has been a material change to warrant a change in decision-making such that she become the sole decision maker for the child, given the ongoing and escalating conflict between the parties.
33The mother is also seeking an order that the father be found in contempt as he wilfully and deliberately breached the Final Order of Justice Murray.
4. Issues:
34The main issues for me to determine are the following:
Whether there has been a material change in circumstances since the 2016 Final Order that affects or is likely to affect the best interests of D. If so, what parenting orders are now in D.’s best interests.
Whether it is in D.’s best interests to be relocated to Barrie, Ontario.
Whether the father should be found in contempt of the 2016 Final Order, and if so the appropriate remedy.
35There was also a further issue regarding whether the new residence and relocation provisions in the amended Children’s Law Reform Act (“the Act”) should be considered and applied in this decision. This case was started before and completed after the amendments to the Act1.
36Both counsel agreed that the court should apply the law and legal principles codified in the amendments, but father’s counsel submitted that the new notice requirements2 should not be applied given that the father would clearly not have known those requirements at the time he relocated to Barrie.
37This issue has now been resolved by the recent Ontario Court of Appeal decision of O'Brien v. Chuluunbaatar, 2021 ONCA 555, released after this case was completed and will be addressed later in these reasons.
5. Summary of Relevant Evidence:
38The parties started living together in March of 2012 and separated in early 2014. D. was born in 2013. The parties had known each other for several years prior to moving in together.
39Both parties described their relationship as conflictual. The evidence is undisputed that the child has been exposed to the conflict. The parties’ first round of litigation regarding the child was in 2015.
40Following the separation, the mother lived at her mother’s home until October of 2014 when she obtained the apartment that she is still living in today. The mother states that the child primarily resided with her following the separation but the father disputes this and states that the parties shared responsibilities for the child.
41The father does not dispute that the child lived with the mother during the week and attended school in her neighbourhood at the time of the mother’s criminal charges in January of 2020. However, he maintains that the parties had shared parenting because of the number of hours he spent with the child every weekend from Friday to Sunday, as well as the mid-week dinners he had with the child at the mother’s home.
The Final Order dated March 18, 2016:
42In April of 2015, the father commenced an application on an urgent basis for sole custody of the child with supervised access to the mother. The father alleged that the mother was violent and unable to control her anger. The mother was charged with assaulting the father on April 3, 2015 following an incident between them in which the father or the father’s friend reported the mother to the police. In that application, the father was very critical of the mother’s parenting and listed a number of alleged concerns.
43On April 21, 2015, the parties entered a temporary, without prejudice order which provided that the father have sole custody of the child and that the mother have access as supervised by her mother.
44The temporary without prejudice order also provided that “neither party shall remove the child from the Toronto area except that the [father] may take the child to Barrie, Ontario from time to time to visit family.”
45The mother’s criminal charge was withdrawn, and the mother entered a peace bond.
46Notwithstanding the conflictual nature of the parents’ relationship, on March 18, 2016, the parties entered into a Final Minutes of Settlement that were incorporated into the Final Order. The Final Consent Order provides the following:
47The parties shall have joint shared custody of the child.
48The child shall reside with the parties as follows:
i. With the father from Tuesday at 10:00 AM to Friday at 6:00 PM.
ii. With the mother from Friday at 6:00 PM to Tuesday at 10:00 AM.
iii. Or as the parties may agree.
49The parties also agreed that the father would pay child support to the mother based on the father’s annual income at the time of $41,400.00 and income imputed to the mother in the amount of $22,889.00.
50In the Fall of 2016, the parties reached a verbal agreement amending the Final Order to provide that D. would live with the mother during the week from Mondays to Fridays and with the father every weekend, generally from Friday to Sunday evenings. The father would also visit D. in the mother’s home approximately two evenings during the week and have dinner with them.
51It is not disputed that this parenting arrangement had been the status quo until January of 2020, when the mother was criminally charged.
The Child:
52The child is described by all three witnesses in this case as a very intelligent and articulate child.
53The father describes him as a wonderful, sociable, and confident child who impresses everyone with his emotional intelligence; he is creative, and has a great sense of humour, and he is good with other children. The father states that the child had been tested as “gifted” however, no evidence of that was presented at trial.
54The mother describes him as a beautiful and amazing child, with a sweet-natured disposition, extremely intelligent, creative, very loving and as a very dear person.
55There court also heard evidence that the child also can have behavioural challenges and has struggled with disruptive and aggressive behavior at school and at his mother’s home, leading to the involvement of the George Hull Centre and the Children’s Aid Society.
56In 2018, the parents enrolled D. in the JK French Immersion program at B. Public School in Toronto, however, D. was suspended from this program for aggressive and disruptive behaviour towards other children in the classroom. D. was then transferred to the TDSB Kindergarten Intervention Program (“KIP”) in January 2019. The KIP program is a TDSB special education program to assist children in kindergarten with behavioural or self-regulation challenges move into grade one.
57The child successfully completed this program before starting grade one at W. School in September of 2019, a short walk from the mother’s home.
58While attending grade one at W. School, the independent evidence, including reports from his teacher, indicated that the child’s behaviour had improved significantly. D. was given the “Most improved Student in Class” award on September 27, 2019. The child liked the school and had close friends there.
59The evidence is also clear that the child is very aware of the conflict between his parents and of adult conversations and topics that should not include him. He has also been exposed to his parents’ conflict on many occasions.
The Children’s Aid Society of Toronto’s Involvement with the Family:
60The Children’s Aid Society of Toronto became involved with the family in December of 2018, following a report from the George Hull Centre for Children and Families. The Society had previously been involved with the family following reports by the father in 2017 and 2018 about the mother, and as well in 2015 following the mother’s criminal charge relating to the father.
61In December of 2018, the mother attended the George Hull Centre office looking for support. The mother sought help from George Hull upon the recommendation of the child’s school principal at B. Public School after D. had been suspended from the JK French Immersion program.
62When the mother attended the George Hull Centre looking for support, she expressed that she was feeling overwhelmed, alone, and isolated and was having difficulty managing the child’s behaviours, both at home and at school. D. was experiencing temper tantrums, hitting, and biting.
63The mother expressed concern to George Hull that the child was exposed to ongoing verbal conflict between her and the father. She also acknowledged that in the past, she had become angry and frustrated with the child and had used physical discipline by spanking him. She expressed that she no longer does this, but she continues to feel the need for support to address the child’s behavioural issues.
64The mother indicated that she would be receptive to support from the Society. The mother met with a Society intake worker following the referral from George Hull.
65During the intake investigation, D. was interviewed. He was described as “an active and happy boy who had just turned 6 years old. He has an active imagination and enjoys drawing pictures and telling stories. He did not make any consistent disclosures during this investigation.”
Family Service Worker Jastinda Manchanda:
66In February 2019, the case was assigned to family service worker Jastinder Manchanda to work voluntarily with the family. Ms Manchanda has been a child protection worker with the Society for approximately 19 years. As noted, Ms Manchanda testified in this trial.
67Ms Manchanda testified that her role was to assist both parents on co-parenting issues, child management, appropriate discipline and strategies for D.’s behaviours and the conflict between the parents. The family needed support to help with the child’s difficult behaviours at school and at home. Both parents were struggling to manage his behaviours.
68Ms Manchanda met with both parents and the child on multiple occasions during her involvement, usually twice each month, sometimes more. She always interviewed the child privately, at his mother’s home or at his school. She did not meet with the child at the father’s home in Toronto because according to Ms Manchanda, the father would not facilitate this. She met the father either at her office or while at the child’s home with the mother, which she described as the child’s primary residence.
69Ms Manchanda also helped the parents in obtaining or expediting services for them at the George Hull Centre. Both parent and the child started participating in family therapy at George Hull in the spring/ summer of 2019 with counsellor Kristin Gionfrido. D. was also assessed by the George Hull psychiatrist and had individual counselling. Ms Manchanda also attended some of the sessions at George Hull to assist the family.
70Ms Manchanda has continued to work with the family to the present time, although once the father moved to Barrie, her involvement became significantly more limited. The Barrie child protection agency has now been involved to assist the father and child, at the request of the Toronto agency.
71Ms Manchanda described the child as an articulate and very intelligent child who was aware of the conflict between the parents. According to Ms Manchanda, the child described “home” as his mother’s home in Toronto.
72Ms Manchanda described both parents as good parents. She described the mother as “a very strong parent” who was very “open-minded” and a “keen learner”. She was open to learning new child management techniques and transparent about her past use of physical discipline (spanking), which she acknowledged was wrong and which she stated that she had stopped doing in 2017.
73Ms Manchanda described the mother as anxious and worried about her son’s behavioral issues. She was open to learning new parenting strategies for her son’s behaviour. The mother was open to completing parenting programs and had completed “Nobody’s Perfect” and “Triple P”, and a program through “Families in Transition”.
74Ms Manchanda described the mother as a “very involved, dedicated and good parent.” She described a strong relationship and bond between her and the child. At the time of the criminal charges, she did not have any parenting concerns about the mother.
75Ms Manchanda described the mother’s house as clean, nicely organized, and child appropriate with a specified arts and crafts corner for the child to paint and create art. The mother engaged in a variety of age appropriate activities with the child. She observed a loving and close relationship between the mother and child. The mother would also cook and prepare good meals for the child.
76Ms Manchanda would drop by announced and unannounced sometime during the dinner hour. The father would visit the child at the mother’s home approximately twice each week after school or in the evening and the mother would prepare dinner for all three of them, so Ms Manchanda had an opportunity to observe both parents with the child.
77Ms Manchanda also described the father as a “very good parent” but she was concerned that he was defensive and overly focused on criticizing the mother rather than focusing on the child during their interviews.
78According to Ms Manchanda, the father was overly critical of the mother and would have a hard time focusing on his own parenting issues. He made statements such as the mother was “dangerous” and that she was “capable of causing death to my child.” When Ms Manchanda pressed him about what he meant by this and to give her an example, he cited the mother’s food preparation. According to the father, the mother could cause the child food poisoning because she leaves food out on the kitchen counter at room temperature.
79The father disagreed with this characterization of him by Ms Manchanda. It was his evidence that he expressed serious concerns about the mother’s parenting to Ms Manchanda on several occasions and that she was not taking him seriously. He questioned the family service worker’s neutrality and believed that she was aligned with the mother. He stated in his evidence that he did not trust Ms Manchanda and no longer had faith in her.
The Holland Bloorview Assessment of the Child, completed December 23, 2019:
80In the summer or fall of 2019, the child was referred to the Pediatric Development Clinic at the Holland Bloorview Kids Rehabilitation Centre on the recommendation of the George Hull Centre for an assessment of possible autism spectrum disorder. The parents agreed to this assessment.
81The Holland Bloorview Assessment and Report was filed as an exhibit in these proceedings on consent of the parties.
82The child had previously been assessed by the George Hull psychiatrist for his temper tantrums and aggression. The George Hull assessment ruled out both ADHD and anxiety and attributed D.’s behavioural challenges to “parent-child relational difficulties.”3 However, it was felt that an autism spectrum disorder could not be ruled as there was a positive family history of autism in D.’s maternal aunt.
83The Holland Bloorview assessment was completed over the winter of 2019. The father brought the child to the clinic for the initial assessment, was interviewed and provided background and history. The assessment also included interviews with George Hull and D.’s grade one teacher at W. School, as well as interviews and assessment of the child. The mother was not able to attend the initial appointment with the child, and by the time the assessment was complete, the child’s living arrangement had changed as a result of the mother’s criminal charges.
84The assessment concluded that D. was not autistic or on the spectrum and that he was “well below the threshold of concern of an autism spectrum disorder.”4 The conclusion and recommendations at page 5 and 6 of the Report are as follows:
“In summary, D. is a bright 6-year-old boy with a history of temper tantrums and aggression and a previous diagnosis of parent-child relational difficulties. D.’s assessment included parental history, collection of information from collateral sources and a semi-structured observation. Overall, D. does not meet criteria for autism spectrum disorder. D. demonstrates several social strengths including social interest and initiation with others, good reciprocal interaction skills and his ability to engage in reciprocal play. D.’s strengths also include his verbal and non-verbal communication skills. Within the school setting, he is reported to have friends and able to get along with other children in class, with noticeable improvements this year. D. also has strengths in his cognitive skills and academic potential.
We were pleased to hear that the family was engaging in therapy through George Hull Centre to support parents and D. and that D.’s behaviour had improved through the school setting.
Recommendations:
We recommend that the family continue their therapy sessions at the George Hull Centre to continue to receive support on how to manage D.’s behaviour in the home and to provide D. with mental health support.
D.’s parents could consider enrolling in parenting programs such as the Triple P program to learn techniques to help manage his behaviour if this has not already been explored.”
85According to the Report, the results of the assessment were shared with the father on March 12, 2020 over the telephone. A feedback appointment had been originally booked on January 16, 2020 but was not attended. The results of the assessment were shared with the mother and Ms Manchanda (with parental consent) on April 2, 2020.
86The father claimed that he did not know that this report existed and was unaware of the recommendations until this trial. He testified that he had a telephone call with the Holland Bloorview doctors at some point after the assessment but had never received a copy of the report. He said that some of the report was shared with him during the telephone call. He recalls that he was advised that D. was not autistic and very bright, and he agreed with that. He did not agree with some of other findings in the report, including the description of D.’s behavioural challenges, nor did he agree with the positive report of D.’s significant improvement from his grade one teacher. He did not recall any of the recommendations in the report.
87The father testified that he did not take a parenting course following the recommendations because they were scheduled to take this at George Hull. He recalls that Ms Manchanda had recommended a parenting course for him, but he believed it was “a misdiagnosis” and that “the timing was extremely difficult” because he was searching for a place to live.
88Following the mother’s criminal charges in January of 2020 and the father’s move to Barrie with the child, George Hull advised that it could no longer provide services to the family.
89The father disagreed that George Hull Centre discontinued their services because he had relocated the child to Barrie. He testified that it was solely because of the mother’s criminal charges.
90Ms Manchanda testified that based on her discussion with George Hull, they were unable to continue providing services both as a result of the mother’s criminal charges and because the child and father were no longer living in their catchment area.
91The father testified that he followed up with counselling for he and the child in Barrie, but he was advised that counselling was not necessary as the child was doing “amazing”.
92The father gave evidence that since the child has started living with him in Barrie, the child is doing very well in school, he is calm, and he is happy.
The Parents’ Reports to the Family Service Worker About Each Other:
93Throughout the course of her involvement, both parents reported each other to Ms Manchanda for inappropriate or excessive physical discipline of the child. Ms Manchanda conducted investigations of all reports made. The society verified that on different occasions, both parents had engaged in inappropriate physical discipline of the child.
94The mother made two reports about the father. In October of 2019, during an evening visit at the mother’s home with the child before taking the child to Beavers, the father became angry with both the mother and the child because the child wanted candy. The child had climbed onto the kitchen counter to look in the cupboard. The father grabbed the child roughly from under the ribs, then took him to his bedroom and threw him on the bed. The mother yelled at the father and told him to leave and then comforted the child. The child had a bruise under the rib area.
95In separate interviews, both the mother and child were consistent confirmed the above account. They stated that the father was very upset because he does not like the child eating candy.
96Ms Manchanda interviewed the father. She testified that the father denied that he caused the injury and initially gave inconsistent stories, but then eventually admitted to causing the bruise as described by mother and child. The father emphasized that he did not like giving candies to D. because it made him hyper and it was not good.
97Following interviews with the mother, child and the father, Ms Manchanda verified the physical use of force by the father. She also observed the bruise on the child’s body which was consistent with both the mother and child’s independent explanations.
98During this trial, the father denied that he caused the injury or that this incident had even occurred. He acknowledged being interviewed by Ms Manchanda about this allegation on October 28, 2019. It was his evidence that Ms Manchanda was “interrogating” him in a lengthy interview and that he was “exhausted, hungry and dehydrated”. He finally said, “Yes, it could have been me,” but he was actually referring to an incident that occurred later in the day when he grabbed the child, who was on his bicycle, to pull him out of traffic for his own safety.
99The mother reported a second incident that had occurred in June of 2019 which was similar in that the father had also grabbed and squeezed the child under the ribs leaving marks when he was misbehaving during a soccer game or practice. The mother texted the father and told him to stop, saying, “You can’t squeeze D. under the ribs anymore. I had to stop all my punitive stuff and I have…This has to stop.”
100Regarding this incident, it was Ms Manchanda’s evidence that the father did not respond at all and would not discuss it. Ms Manchanda verified excessive physical discipline based on the evidence that she had, including the similarity to the October incident.
101In this trial, the father denied the incident and testified that he had no recollection of receiving any texts from the mother about it or discussing it with Ms Manchanda.
102Ms Manchanda recommended to the father that he attend a “Caring Dads’ program. He refused. In this hearing, the father gave evidence that he did not agree that he needed a Caring Dads program because he perceives it as a program for violent men and he is not a violent man and he has never been physically rough with the child.
103Based on her investigations, as she is required to do so by law, Ms Manchanda reported both the June and October 2019 incidents to the Child and Youth Advocacy Centre (CYAC) of Toronto Police Services. This is a joint protocol of the Toronto Police Service and the Society.
104Ms Manchanda testified that based on her discussion with the CYAC officer, it was ascertained that there would be no criminal charges, but that she would give the father a warning that this use of force can not happen again.
January 2020: The Mother’s Criminal Charges:
105The father made at least five reports to the society and separately to the police about the mother during Ms Manchanda’s involvement with the family. These related to incidents that he alleged occurred in the fall and winter of 2019 and in the summer of 2020.5 One of these reports led to the mother’s criminal charges in January of 2020.
106On January 15, 2020, the mother was criminally charged with two counts of assault against the child. According to the father, during a weekend visit at his home, the child disclosed to him that the mother had dragged him over the area rug in the mother’s living room causing a friction burn on his back which had left an injury.
107The father reported this incident to Ms Manchanda on or about January 14, 2021. During their telephone call, according to Ms Manchanda’s evidence and her case notes, the father stated that he was thinking of going for “full custody” and “let Mom deal with the consequences.” He wanted the child in his full-time care. He stated that since the Society had made “a big deal” of what he did the last time (referring to the October 2019 investigation) he wanted to know what the Society was going to do about this report. He was very critical of the mother and believed that the child should not be living in the mother’s care for most of the time.
108Ms Manchanda advised him that she would follow the protocol for a child protection investigation. She also asked reminded him about the Caring Dads program which she had recommended to him previously. According to Ms Manchanda, the father responded adversely and during this conversation he denied causing the bruise on the child in October of 2019 or even admitting to this in their previous conversations. He stated that the bruises may have been caused by the mother.
109Following her call with the father, Ms Manchanda contacted the mother and arranged to interview her later that day. She also arranged to interview the child at school without the mother’s knowledge.
110The child was interviewed at school at 3:00 PM. The child confirmed that the incident had occurred and that his mother had dragged him from the living room into his bedroom and his “back got rubbed on the carpet”.
111Ms Manchanda observed the injury on the child’s back shoulder. She testified that it was very faded and looked like very small. The child expressed that he was not scared.
112Ms Manchanda attended at the mother’s home and interviewed her at 4:30 PM. The mother also confirmed that the incident had occurred approximately one month ago. Ms Manchanda testified that the mother was very open with her in discussing the incident. The mother explained that the child was having a temper tantrum on the floor and refused to listen to her. The mother stated that she slowly dragged the child to his bedroom for a time-out during the tantrum. She did not realize that he had experienced a rug burn until later when he told her. She immediately applied polysporin to the injury. She stated that she apologized and hugged the child and did not mean to hurt him. According to Ms Manchanda, the mother was very remorseful and had also expressed her remorse to the child.
113The mother advised the worker that this would never happen again. Ms Manchanda verified that this incident occurred based on the mother’s and the child’s consistent account. After consulting with her supervisor, Ms Manchanda also contacted the CYAC officer pursuant to protocol on the same day to report the incident. Based on her discussion with the CYAC officer, it was determined that the incident did not warrant criminal charges.
114The mother also gave detailed evidence about this incident in this trial. She expressed deep remorse about the incident and since the criminal charges, she has taken further parenting courses, including a program with Families in Transition and the Triple Parenting Program.
115The father was not satisfied with the society’s investigation. The next day on January 15, 2021, he took the child to the police station and made an independent report regarding the incident.
116On January 16, 2020, Ms Manchanda learned from a CYAC officer that following the Society’s call to CYAC on January 14, 2020, the father’s second report with the child regarding the same incident triggered another investigation the following day (but with a different officer).
117The father confirmed in his testimony that he had attended the police station with the child to make a further report following his report to Ms Manchanda. He testified that he felt that Ms Manchanda was “underwhelmed’ with his report and that “she was not going to deal with it.”
118On January 15, 2020, police officers attended at the mother’s home to discuss the incident and to conduct a “wellness check” following the father’s second report.
119The child was present, and the mother was also babysitting two other children. Although the officers did not testify in this proceeding, it is not disputed by the mother that when they arrived at the mother’s home, they were able to enter and they saw the child laying on the floor. They believed that the mother was on top of the child pinning him down.
120The mother also testified in this trial about what occurred when the police arrived at her home on that day. She denied assaulting the child. The child was having a significant temper tantrum at the time and he upset with one of the other children there. The mother was concerned that he would hurt himself or the other children.
121She described that she was using a “caging” technique that she had learned in a parenting class to calm and restrain the child when he becomes this agitated.
122In order to restrain the child and to protect the other child, the mother was kneeling and hovering over the child with her arms and knees on either side of him using the “caging technique”. The child was upset, and the other children present were jumping on her back. She denied physically touching or kneeling on the child.
123The police charged the mother with assault for this incident as well as the December 2019 “rug burn” incident. On the same day, the officers removed the child from the mother’s care and placed him in the father’s care.
124The mother attended the police station where she was processed and released on an undertaking to have “no direct or indirect communication with the child” except “in the direct and constant presence of a child protection worker of the Children’s Aid Society of Toronto or their designate.” The mother was also prohibited from going “within 250 metres of any place [the child] is, goes to school, or happens to be.”
125The release conditions did not provide the standard provision that permits a family court judge to make to make any further family court orders for parenting or contact as an exception to the no contact provision.
126Ms Manchanda learned of both charges from the police. She testified that she was surprised and confused that the police had charged the mother for the “rug burn” incident after her discussion with another officer the day before that no charges were warranted.
127Ms Manchanda met and interviewed the mother regarding the “caging” incident. Ms Manchanda testified that she was satisfied that the mother was using an acceptable child management technique to control the child’s temper tantrum. She did not believe it warranted a criminal charge. Ms Manchanda’s evidence that she told the CYAC officer that that mother had learned how to “hover and cage” to contain the child from hurting himself or others in parenting classes.
Events Following the Mother’s Arrest: The Change in the Child’s School:
128Immediately following the mother’s arrest, the father removed the child from W. Junior School, which was his home school in the mother’s neighbourhood with the intention of registering him in H. Junior School in the father’s neighbourhood. According to Ms Manchanda, the child remained out of school for at least one week. The father denied this and stated that the child was only out of school for approximately three days.
129Ms Manchanda testified that it was difficult to reach the father to arrange for an interview of the child or for a home visit in the father’s home now that the child was living there.
130Ms Manchanda was eventually able to connect with the father and learned that he had registered the child at the H. school. She testified that she advised the father not to change the child’s school. She described trying to explain to the father that the child had already had too much change in his life following the mother’s arrest and that this change will impact him further, including the loss of close friends, teachers, and neighbourhood. She testified that the father was dismissive to this reasoning and she was unable to convince him.
131When asked in cross-examination if he thought it would be detrimental to the child to be pulled out of W. School and placed in H. School, the father responded that “sure it’s disruptive for a child to leave school in the middle of a semester but he was transferring into one of the best schools in Toronto”.
132The father did not inform the mother of this change in the child’s school. The father states that he thought that the mother’s release conditions prohibited communication between them and that he believed that he was able to make decisions alone for the child because the mother was criminally charged and the child was now in his care. The father also testified that someone at the H. School told him that he was permitted to register the child without the mother’s permission. The father could not recall the name of the person who advised him of this.
133The father testified that he changed the child’s school because it was easier to get the child to school in his neighbourhood and because H. was a better school. According to the father, he had to travel to Scarborough for his WSIB training and internship program and he was unable to do so if the child was at W. School.
134The mother and Ms Manchanda testified that that child was doing well at W. School and he enjoyed it there. He had close friends there. The independent report from the child’s grade one teacher in the Holland Bloorview assessment also confirmed this and stated that the child’s behaviour at school had improved significantly.
135Approximately one week after the mother had been charged, Ms Manchanda was eventually able to meet with the child at H. School. She met the child privately. She observed the child to be “very, very sad”. He was repeatedly blinking his eyes and kept asking to skip her questions. He repeatedly asked several times how his Mom was doing, how were his close friends, when he would be able to see his mother. He wanted to go home and that he was missing his Mom. By home, he meant his mother’s home. According to Ms Manchanda, when the child says “home” he is referring to his mother’s home. He says “Daddy’s home” for his Dad’s home. When asked, he stated that he liked his new school.
136On January 27, 2020, the father made another report to the police and to the Society about the mother regarding another alleged historical incident. According to the father, the child reported to him that the mother had thrown a wagon at him some time in the fall or winter of 2019. The father also reported that the mother had smashed a crystal bowl in front of the child.
137Ms Manchanda interviewed both parents and the child. This incident was not verified. The child did not confirm the incident, the father’s account was inconsistent, and the mother denied it. Ms Manchanda also testified that she was familiar with the wagon in question because she had observed it at the mother’s home on several home visits. She testified that in her view, it would be physically impossible for the mother to have picked up the wagon and thrown it at the child. No charges were laid.
138In May of 2020, the father made another report to the police regarding an alleged historical threat that the mother had made against him during a counselling session at the George Hull Centre. The alleged threat was apparently made in the presence of the counsellor. Again, this was investigated, and no charges were laid.
The Mother’s Contact with the Child Following the Criminal Charges:
139Given the very restrictive bail conditions, which only permitted contact or access between the mother and child in the presence of the Children’s Aid Society, Ms Manchanda testified that it was very difficult to arrange any supervised in-person contact between the mother and the child.
140Ms Manchanda testified that the father made it very difficult to arrange supervised access. She sent him many emails and could not get any conclusive answers. The father denied this.
141Ms Manchanda testified that difficulties were also compounded by the Covid-19 pandemic and the Ontario government’s declaration of a state of emergency in March of 2020. For a period of time, the Society had suspended all in-person access visits at their offices because of the pandemic.
142The father denies this. He testified that the Covid-19 pandemic made arranging parenting time very difficult and he did not want the child removed from school. He made that clear to Ms Manchanda. He also states that he was fully cooperative in arranging a home visit between the worker and the child, and he was waiting for her to arrange something.
143Exhibits filed in this proceeding show that Ms Manchanda wrote to the father by email on January 28, 2020 regarding his new report to the police about the mother and requesting to meet with him and the child as soon as possible. The father responded on January 30, 2020 and stated “I am no longer in a position to take time off work without losing money and putting my WSIB claim at risk. I will not be able to bring D. to CAS in the future. Sorry.”
144On February 19, 2020, Ms Manchanda wrote the father by email again and stated that the mother is “seeking visitation with D. as she has not seen him since January 15th. D. has also asked to see his mom during my last interview with him at school. Mom’s bail conditions allow her access supervised by CAS or its designate. I need to speak to you as to how to assist you guys in this process. Can you kindly call me ASAP.”
145In a follow up email on the same day, Ms Manchanda also requested to speak to the father to arrange a home visit with D. in home. She again requested that he call her.
146On February 20, 2020, the father emailed Ms Manchanda and apologized for the delay as he was very busy and stated that he could schedule a home visit with her “anytime after school. 3:45 PM or later.”
147He did not respond to the request to arrange supervised visits with the mother except to say, “D. has missed do much school in his life. Please don’t pull him out of school.”
148On February 21, 2020, Ms Manchanda responded and again asked the father about facilitating access visits to the mother. She requested his cooperation and a prompt response.
149On February 22, 2020, the father responded that Ms Manchanda could visit his home any day of the week after school to see D. and the home. However, regarding access between D. and his mother, he stated, “I can not assist in getting D. to CAS office to visit G. (unless required by law). I am very busy at this time with keeping my job. Keeping D. safe is always Priority One.”
150The father testified that he just waiting for Ms Manchanda to schedule a visit and would have cooperated if he was required to do so.
151The father acknowledged in cross-examination that he presumed that there would be no contact given the mother’s criminal charges. He acknowledges that in one of his conversations with Ms Manchanda according to her case notes, he responded to her request by saying, “ I mean I assume that with these pending charges and the new information [the father’s further reports] there would be no access on the table for her.”
152Ms Manchanda was not able to facilitate even supervised telephone contact between D. and his mother until April, after the father had already re-located to Barrie.
153Ms Manchanda supervised all telephone contact commencing in April in accordance with the release conditions. The mother and child had two mid-week telephone calls each week. Ms Manchanda testified that the child enjoyed the conversations with his mother and repeatedly asked when he could see her.
154Once the father moved to Barrie, arranging an in person visit between the mother and child became even more difficult. The father told Ms Manchanda that he did not think it was “fair” that he had to arrange visits for the child and mother in Toronto.
155The mother secured a criminal defence lawyer in March of 2020, but despite efforts, the lawyer was not able to obtain a variation of the mother’s release conditions until July 5, 2020, as a result of the impact of the Covid-19 on criminal and family court processes at the time.
April 2020: The Father’s Move to Barrie with the Child:
156In April of 2020, as noted, the father relocated the child to Barrie, where his sister and his mother, the child’s paternal aunt and grandmother reside. It is the father’s evidence that this was a temporary move, but it became permanent in May of 2020.
157Ms Manchanda testified that she first learned that the father was moving to Barrie in April 2020 when she called him to arrange a meeting and to see how the child was doing. Ms Manchanda testified that when she spoke to the father, it was her impression that the father was being evicted and that it all was happening very quickly. He told her that the property was being sold, he was given an eviction notice and being asked to leave. He told her the move to Barrie was temporary.
158When asked Ms Manchanda asked the father if the mother knew, the father told her that he had not advised the mother and that he did not want to engage with the mother or talk to her. Ms Manchanda testified that she told the father that he has a clear court order and that he must comply with the order. Even thought the criminal release conditions prohibited the mother from having the child in her care at that time, Ms Manchanda testified that she urged the father to at least inform her of the move.
159Following his discussion with Ms Manchanda, the father sent an email to the mother and the Society. In that email, dated April 21, 2020, the father informed the mother that the move was temporary. His email, addressed to the mother and the child protection worker stated the following:
“Subject: Temporary Move to Barrie
The landlord forced us out at the last minute with a legal loophole after selling the house.
We are temporarily moving in with my Mom and Sister.
The address there is: xxxxx, Barrie, Ontario
Barrie is about a 75-minute drive from Toronto (the same amount of time that TTC takes from [the father’s address] to [the mother’s address].”
160It is not disputed that this was the first notice that the mother had of the move. The father acknowledged in cross-examination that he sent this email only after the child protection worker urged him to inform the mother. He further admitted that he had not communicated with the mother at all since she had been criminally charged, even though there were no restrictions on communications between the parents. He was also aware that the mother did not drive and does not have a car.
161According to the father’s evidence, he was forced to move because his landlord was selling the house and that he had to be out by April 30, 2020. He later acknowledged in these proceedings that he was not “technically evicted”, but that he agreed to move out because he wanted some control over the process. He signed a “N11” form on February 16, 2020 agreeing to end his tenancy on April 30, 2021. When the Covid-19 pandemic hit, he tried to stay in the apartment and testified that he was given incorrect legal advice from Parkdale Community Legal Clinic that he could stay, notwithstanding the N11 agreement.
162In cross-examination, the father acknowledged that he had known that the landlord was going to sell the property in the summer of 2019. He further acknowledged that he agreed to move out of the home by April 30, 2020 and signed the N11 in exchange for compensation of $7,500.00 from the landlord. The father acknowledged receiving the $7,500.00 from the landlord. Although the father states that he was hoping to stay longer because of the Covid-19 pandemic, in a letter from the landlord’s lawyer produced by the father, the lawyer accuses him of threatening to extort an additional “exorbitant amount” of money from the landlord, so as not to breach the agreement. He was put on notice that this was extortion and that he would be sued.
163It is the father’s evidence that the move to Barrie was only supposed to be temporary while he looked for affordable housing in Toronto, first in his neighborhood and then in the area where the mother lived with the child and in his school catchment area. He stated that he could not find an affordable or appropriate apartment in Toronto. The father did not provide any evidence of his apartment searches, although he testified that he looked at approximately five apartments.
164The father acknowledged that at the time that the father sent the email dated April 21, 2021, the child was already in Barrie with paternal family while the father packed up his apartment in Toronto.
165On May 26, 2020, approximately 35 days later, Ms Manchanda testified that she called the father and had a lengthy discussion with him. It was during that discussion, contrary to his earlier statement to her, that the father told her he had no plan to come back to Toronto. During that conversation, the father repeated his statements that he believed that the mother was “dangerous” for the child and that the child should be living with him. He stated that there should have been more criminal charges against her. He further stated that she is not likely to resolve her criminal charges soon, so the child could not go back to her anyway. He advised Ms Manchanda that he had signed a one-year lease in Barrie.
166When asked, the father further advised Ms Manchanda that he was unable to drive the child to George Hull for therapy or to bring the child to the Society’s offices for access. He told her that it would be better if the mother came to Barrie for therapy and access and that he was not taking any responsibility for access.
167According to Ms Manchanda, the father told her that it was not “fair” to him that he would have to drive to Toronto to facilitate the mother’s access with the child. Ms Manchanda testified that when she asked the father if it was fair to move to Barrie without consulting the mother or involving her in that discussion, the father struggled with that concept. She again urged him to discuss this with the mother.
168Following his conversation with Ms Manchanda, the father sent an email to the mother later that evening notifying her of his “long- term move to Barrie” with the child and that he had signed a one-year lease starting July 1, 2020. He provided the address and the name of the school where D. would be registered. He wrote that “between the two of us, we will make sure that your access is not compromised in any way.”
169The father gave evidence that it appeared that the mother’s criminal charges were not going to be resolved for at least a year, or until the child was starting grade 2. He stated that he needed the support of his sister and mother to care for the child while he while engaged in his WSIB training and his internship program.
170The father did not provide evidence of the WSIB internship program that he was allegedly enrolled in at the time of the mother’s arrest or once he moved to Barrie, however, he testified that it was online during Covid.
The Mother’s First Visit with the Child on June 22, 2020:
171The child was not able to have any in person contact with his mother until June of 2020, despite repeated requests to see his mother, according to Ms Manchanda and her repeated attempts to facilitate this.
172The first in-person visit occurred on June 22, 2020. The visit was arranged to take place in a park and to be supervised by Ms Manchanda. The mother arrived a few minutes before Ms Manchanda. They had no pre-arranged meeting before the park. The father and child were already there with the father’s sister.
173The mother testified that the child saw her before she saw him and greeted her. She testified that she was walking with her wagon and didn’t know they that they were there until she heard the child say, “Hi Mommy”. She looked to the side and saw the child, who was sitting on a blanket with the paternal aunt.
174The mother approached to say hello while waiting for the child protection worker. She acknowledged that when the child greeted her, she started to walk over.
175The sister and father believed that the mother then came too close to the child. The mother acknowledged that at one point she was approximately two to three feet away from the child. She testified that when she saw her child, she completely forgot about Ms Manchanda.
176The sister told the mother to ‘stay back’, or words to that effect. She and the father’s sister had a short and heated exchange of words that lasted approximately two minutes. The mother acknowledged that she did get upset and that she yelled at the sister, “In what universe is it okay to take a child from his mother?” The mother stated that she then moved away and stayed a good distance away from them and maintained social distancing.
177The sister and the father believed that the mother was violating her release conditions. The father then called 911 to report the mother for violating criminal bail conditions.
178Ms Manchanda testified that she arrived just a few minutes after the mother at exactly 1:00 PM. At the time she arrived, she described seeing the father on the telephone, although everyone appeared calm and she did not observe any conflict. The father advised her that he had called 911 because the mother had violated her bail conditions, violated Covid protocols, and threatened his sister.
179Ms Manchanda testified that she advised the father that this was not an emergency and tried to persuade him to cancel the 911 call so that the visit could proceed. She asked him at least three of four times to cancel the call. The father refused.
180The police arrived approximately 20 to 25 minutes later and spoke to the father, but they did not criminally charge the mother. They allowed the visit between the child and the mother to take place, supervised by Ms Manchanda while the police remained in their cruiser close by and the father paced back and forth a distance away.
181Ms Manchanda testified that she requested the father to leave the area so that she could properly supervise the visit. The father refused and continued to pace back and forth close by.
182The father intervened twice during Ms Manchanda’s supervision. The child was not permitted to eat the mother’s home-baked lasagne or accept water from the mother. The father brought plastic bags and directed that these items be placed in plastic bags and returned to the mother.
183It is also not disputed that the mother was not permitted to touch or hug the child as a condition of the visit. The father only agreed to the visit if this condition was agreed upon, due to Covid.
184Notwithstanding these restrictions and the unfortunate beginning of the visit, the evidence is undisputed that the visit went well and that the child was very happy and excited to see his mother after a lengthy absence of over five months.
185Ms Manchanda described a “very happy, joyful visit” for the child and that the mother was happy as well. The mother and child played soccer with masks on, although the child did take his mask off at one point.
186Ms Manchanda described D. as being “super happy” and “joyful” at seeing his mother. He wanted to touch her, and he tried to get closer. Ms Manchanda had to ensure that he did not get too close and to maintain social distancing. The mother did so as well, at Ms Manchanda’s request.
187After the visit, the police spoke to the father again, the paternal aunt, and the child. They also spoke to Ms Manchanda. It is not disputed that that they advised Ms Manchanda that they were not going to criminally charge the mother.
188Ms Manchanda described the father as upset and angry that the mother had not been criminally charged. He instructed the child to get into the car and that he wanted to leave right away.
July 5, 2020: The Variation of the Mother’s Release (Bail) Conditions:
189The Children’s Aid Society supported the mother’s request to vary her release conditions and provided a letter of support for defence counsel. It was the Society’s position that the mother’s visits did not need to be supervised. Ms Manchanda confirmed this in her testimony at trial. The variation application was granted on July 5, 2020 on the consent of the Crown.
190The new release conditions were amended to provide that the mother “must not communicate directly or indirectly, or have contact with the child except in accordance with the following conditions: at the discretion of the Children’s Aid Society or its designate or in accordance with a Family Court Order,” thereby permitting a family court judge to make a parenting order that was an exception to the release conditions.
6. Current Court Proceedings:
191On August 17, 2020, following the variation of her release (bail) conditions, the mother commenced these court proceedings by bringing an urgent 14b motion requesting the court to schedule a motion for contempt against the father and/or a case conference under the Court’s Covid-19 Pandemic Planning directive. At this time, the child had been living with the father in Barrie since April of 2020 and was registered in school there, albeit without the mother’s consent.
192The 14b motion was contested by the father and in his responding affidavit he deposed that the motion was not an emergency as he did not “abscond” with the child and that the mother and the Children’s Aid Society “were informed of my address in Barrie as of April, 2020 and did not contest.” He also sought more time to respond as he was trying to retain counsel.
193The court convened a case conference on September 3, 2020. At the time of the case conference both parents now had counsel. The case conference was conducted by telephone conference in accordance with the Court’s Pandemic Planning Directive.
194The court was advised that the mother’s criminal charges should be resolved shortly and that both parents were bringing motions seeking orders to either reinstate or change the Final Order of March 18, 2016. The father had not yet brought a motion to change the Final Order but was seeking leave to do so now, which was granted on consent.
195Both counsel sought disclosure of the entire redacted Children’s Aid Society records regarding the family, which the court also ordered on consent. The parties also agreed that they would explore mediation to try to resolve the outstanding issues. If no agreement was reached, then the parties agreed that the motions would be scheduled for a lengthy contested hearing on October 27, 2020.
196On October 16, 2020, the mother brought an urgent 14b motion seeking leave to call the family service worker, Ms Manchanda, as a witness to give oral evidence at the motions returnable on October 27, 2020. This was vigorously contested by the father for a number of reasons, and sought that the request be dismissed and arguments be heard on the issue, or alternatively, that the October 27th date be converted into a case conference to discuss the procedural path forward in this matter
197The court convened a further case conference on October 27, 2020 to address the issue of oral evidence. At that case conference, the court was advised that the mother’s criminal charges had not yet been resolved, but that with the assistance of counsel, the mother was now having unsupervised parenting time with the child with a view to moving to full days every Saturday and then overnight visits every weekend.
198Following submissions made by counsel, the court made the following order and directions:
The motions before the court will be converted to a focused hearing regarding the father’s motion to change, to be heard on November 26, 2020 at 10:00 AM in courtroom 10.
The hearing will be conducted as a “hybrid hearing” in which the father will participate by videoconferencing and the mother and her counsel will participate in person. The trial coordinator will send out directions to the parties and counsel.
Ms Jastinder Manchanda, the society worker with the Children’s Aid Society is directed to attend (either virtually or in-person) and to give viva voce evidence at this hearing, subject to cross-examination regarding the Society’s position and investigation in this matter. Prior to Ms Manchanda’s attendance, counsel for the mother will provide a written statement to counsel for the father advising what Ms Manchanda’s direct evidence will be, that is, what specific areas will be covered.
The evidence in chief of the parents will be their affidavits filed in these proceedings to date, subject to cross-examination by counsel. The parties may also give very brief direct evidence orally regarding any new and relevant information that has arisen since the date of their sworn affidavits.
Ms Manchanda will testify first, followed by the applicant and the respondent.
A copy of this endorsement shall be immediately delivered to [Society] counsel at the Legal Department of the Children’s Aid Society of Toronto, along with the revised Summons to Witness for Ms Manchanda.
199For a number of reasons, including numerous technical difficulties as a result of the hybrid and virtual (video) nature of the hearing, as well as the lengthy examination of witnesses, the hearing lasted eight days. It was not completed until April 16, 2021.
200On December 9, 2020, the parties reached an agreement that provided that the parents share the Christmas holidays with the child and that the child would be have unsupervised parenting time in Toronto with the mother.
201On January 25, 2021, as indicated, the mother’s criminal charges were withdrawn.
202By February 21, 2021, the child was having overnight unsupervised parenting time with his mother every weekend in Toronto from Friday to Monday, pursuant to a consent temporary order reached by the parties pending the resolution of this hearing.
7. Credibility Findings:
203I found that the mother was a credible witness. She answered questions directly and gave her evidence in a straightforward manner, even when the evidence reflected poorly on some of her behaviour as a parent, including her use of inappropriate physical discipline, her involvement of the child in the parental conflict, and her failure to follow Covid protocols, as will be later addressed. The mother acknowledged her parenting deficits and admitted in cross-examination to some parenting conduct that did concern the court.
204I also found that the mother’s witness, the family service worker Ms Manchanda, was credible. While she sometimes confused dates and gave long-winded answers, the court found that she generally gave her evidence in a balanced and fair manner. Her evidence was supported by her detailed case notes and records that were prepared contemporaneously and produced to counsel and in these proceedings.
205The court did not find that Ms Manchanda was unfairly aligned with the mother. She was balanced in describing the parenting strengths of both parents in detail, as well as her numerous discussions with both parents about her concerns. She fairly and carefully raised her concerns about the father’s conduct during her involvement.
206Counsel for the father attempted to suggest in cross-examination that Ms Manchanda had deliberately omitted a case note during her testimony regarding the father’s lack of cooperation in facilitating the mother’s access after her criminal charges. When the case note was brought to her attention, Ms Manchanda appeared genuinely surprised and confused that it was not in the disclosure of several hundred case notes provided to counsel. Further, the case-note in question, which was ultimately entered as an exhibit in this hearing, supported Ms Manchanda’s evidence that the father was not willing to facilitate even supervised access after the mother’s arrest.
207The court had serious concerns about the father’s credibility. The father was evasive, argumentative, non-responsive and misleading on important issues. He would not answer many difficult questions directly, or could not recall events, and he gave inconsistent and sometimes contradictory evidence in both his testimony and in his affidavits.
208For example, the court did not believe that the father cooperated in facilitating contact between the child and mother after the mother was criminally charged. All of the evidence points to the contrary, including the events that occurred on the child’s first in-person visit with the mother following her arrest. His evidence was also directly contradicted by Ms Manchanda.
209Ms Manchanda testified, as corroborated by her May 26, 2020 case note, that when she continued to make efforts to arrange in-person access between child and mother, the father took the position that access “should not even be on the table right now” given the pending criminal charges, and that there should have been more criminal charges laid against the mother.
210Where the father’s evidence conflicted with Ms Manchanda’s evidence in this trial, the court preferred the evidence of Ms Manchanda. Where the father’s evidence conflicted with the mother’s evidence in this trial, the court generally preferred the evidence of the mother.
211The father’s evidence regarding the reasons for the move to Barrie was also misleading and lacked credibility. It was contradicted by other evidence in this trial, including his own email to the mother on April 21, 2020, the evidence of Ms Manchanda, and the father’s inconsistent responses in cross-examination.
212The father’s complete denial of his use of excessive physical force on the child for getting candy while having dinner at the mother’s home in October of 2019, and previously at a soccer game in June of 2019, was inconsistent, evasive, and contradictory. It was also contradicted by the evidence of the mother and Ms Manchanda, who verified that the excessive force had occurred following a full investigation which included interviews with the child and both parents.
213The father’s evidence that he did not know the recommendations of the Holland Bloorview assessment, nor the findings and results of the assessment, (except that the child was not autistic) was not credible. The father was very evasive and non-responsive during this line of questioning. It is undisputed that the father had a feedback session with the assessors on March 12, 2020, and the results were shared with him at that time.
214The court did not believe the father’s evidence that he did not want the mother to be criminally charged and that he was just exercising his civic duty. During this trial, the court heard about multiple reports made directly by the father to the police about the mother, almost all of them unsubstantiated. It was clear that the father wanted the mother to be criminally charged to gain a legal advantage in the parenting dispute between them.
215The father’s conduct in calling 911 and reporting the mother to the police for allegedly breaching her bail and two other allegations during the child’s first in-person visit with the mother was very telling. The father was very upset that the police would not criminally charge the mother after they arrived on scene and observed what was happening.
216The court also had great difficulty with the father’s evidence that although he is now aware that breached the Final Order for joint decision-making and shared parenting in his unilateral relocation with the child, at the time he was under the impression that he was entitled to make these decisions about the child because the police placed the child in his care. He further testified that he was not aware that he needed to bring a motion to change.
217The father is a sophisticated and intelligent man who previously commenced family court proceedings against the mother in 2015. At that time, he applied for sole custody and immediately commenced those proceedings after the mother was criminally charged based on his report. (The charge was subsequently withdrawn.)
8. The Law and Governing Principles:
218Rule 15 of the Family Law Rules governs the procedure for motions to change and applies to motions to change a final order for parenting and decision making. The legal tests that a court must apply are set out under the newly amended Children’s Law Reform Act, R.S.O. 1990, c. C.12, as amended.
Application of the CLRA Amendments to this Case:
219On March 1, 2021, the amendments to the Children’s Law Reform Act, (“the Act”) contained in the Moving Ontario Family Law Forward Act, 2020, came into force.
220Language in the Act is modernized with these changes. Terminology related to child custody and access is replaced with terminology related to parenting and decision- making responsibility. New residence and relocation provisions were also enacted.
221Since this case began before March 1, 2021 and was heard after March 1, 2021, the court asked for submissions about whether it should apply the amendments to the Act or the law that was in force prior to March 1, 2021, and in particular, the new relocation provisions.
222Both counsel agreed that the court should apply the law set out in the amendments6. This is the approach that Justice Stanley Sherr took in L.B. v. P.E., 2021 ONCJ 114, although Justice Sherr decision did not address relocation as it was not an issue in that case. Other courts have adopted the same approach since March 1, 2021. See: Pereira v. Ramos, 2021 ONSC; Brown v. Brown, 2021 ONSC 1753.
223This issue has now been resolved by the recent Ontario Court of Appeal decision O'Brien v. Chuluunbaatar, 2021 ONCA 555. In that relocation or mobility case the Court of Appeal confirmed that the legal new amendments applied to ongoing cases that started before the amendments were enacted.
224In the case before me, the court will apply the legal principles and considerations now codified in the CLRA amendments, but will obviously take a common-sense approach regarding the technical notice requirements under section 39.3, which requires a parent to use the forms prescribed in the regulations and provide at least 60 days’ notice. The forms obviously did not exist in April of 2020 at the time of the father’s move. However, most of the legal considerations, with some clear exceptions, (such as the reasons for the move), set out in the amendments already existed.
The New CLRA Amendments:
225As noted, custody now becomes decision-making responsibility. Decision-making responsibility is defined as responsibility for making significant decisions about a child’s well-being, including with respect to,
a. health,
b. education,
c. culture, language, religion, and spirituality, and
d. significant extra-curricular activities.
226Access by a parent to a child now becomes parenting time. Parenting time is defined as the time a child spends in the care of a parent of the child, whether or not the child is physically with the parent during the time.
227Access by a non-parent to a child becomes contact. This is defined as the time a child spends in the care of a person other than the child’s parent, whether or not the child is physically with the person during that time.
228The amendments set out who can apply for two different kinds of orders: parenting orders and contact orders. It establishes a list of non-exhaustive criteria with respect to determining the best interests of a child. It introduces provisions to assist the courts in addressing family violence. The Act also establishes a framework for determining when one parent will be permitted to relocate with a child and the amount of notice that must be provided to another parent.
229The amendments are aligned, for the most part, with the changes made to the Divorce Act (Canada) that also came into force on March 1, 2021.
230Section 28 of the Act sets out the different types of parenting orders that a court can make. The relevant subsections of section 28 for this case are (1), (4), (5), (6), (7) and (8). They read as follows:
Parenting Orders and Contact Orders
28 (1) The court to which an application is made under section 21,
(a) may by order grant,
(i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2),
(ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or
(iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);
(b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and
(c) may make any additional order the court considers necessary and proper in the circumstances, including an order,
(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,
(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,
(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,
(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,
(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,
(vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or
(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.
Allocation of decision-making responsibility
(4) The court may allocate decision-making responsibility with respect to a child, or any aspect of it, to one or more persons.
Allocation of parenting time
(5) The court may allocate parenting time with respect to a child by way of a schedule.
Parenting time, day-to-day decisions
(6) Unless the court orders otherwise, a person to whom the court allocates parenting time with respect to a child has exclusive authority during that time to make day-to-day decisions affecting the child.
Parenting plan
(7) The court shall include in a parenting order or contact order any written parenting plan submitted by the parties that contains the elements relating to decision-making responsibility, parenting time or contact to which the parties agree, subject to any changes the court may specify if it considers it to be in the best interests of the child to do so.
Right to ask for and receive information
(8) Unless a court orders otherwise, a person to whom decision-making responsibility or parenting time has been granted with respect to a child under a parenting order is entitled to ask for and, subject to any applicable laws, receive information about the child’s well-being, including in relation to the child’s health and education, from,
(a) any other person to whom decision-making responsibility or parenting time has been granted with respect to the child under a parenting order; and
(b) any other person who is likely to have such information.
Variation, Residence and Relocation Provisions:
231As noted, the new amendments contain an entirely new section on residence and relocation. Further section 29 of the Act, which governs the variation of court orders, has been amended to reflect that a relocation or a proposed relocation of a child constitutes a material change in circumstances unless the relocation has been prohibited by the court.
232The relevant sections of section 29 in this case are as follows:
Variation of orders
29 (1) A court shall not make an order under this Part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order. 2020, c. 25, Sched. 1, s. 6.
Relocation
(2) For the purposes of subsection (1), the relocation of a child in accordance with section 39.4 constitutes a material change in circumstances unless the relocation had been prohibited by a court, in which case the relocation does not, in itself, constitute a material change in circumstances. 2020, c. 25, Sched. 1, s. 6.
233I also set out the factors that I must consider under section 39.4 (3) in determining whether to authorize or approve the father’s move after the fact, in addition to all of the best interest factors under section 24 of the Act:
Change in residence, person with decision-making responsibility or parenting time
39.1 (1) A person who has decision-making responsibility or parenting time with respect to a child and who intends to make a change in residence, or in the child’s residence, shall notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention. 2020, c. 25, Sched. 1, s. 15.
Relocation
39.3 (1) A person who has decision-making responsibility or parenting time with respect to a child and who intends a relocation shall, at least 60 days before the expected date of the proposed relocation, notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention. 2020, c. 25, Sched. 1, s. 15.
Authorization of relocation
39.4 (1) In this section,
“family arbitration award” has the same meaning as in the Arbitration Act, 1991. 2020, c. 25, Sched. 1, s. 15.
(2) A person who has given notice of a proposed relocation in accordance with section 39.3 and who intends to relocate a child may do so as of the date referred to in the notice if,
(a) the relocation is authorized by a court; or
(b) no objection to the relocation is made in accordance with subsection 39.3 (5) and there is no order prohibiting the relocation. 2020, c. 25, Sched. 1, s. 15.
Best interests of the child
(3) In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24, as well as,
(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons;
(d) whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement;
(e) the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and
(g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance. 2020, c. 25, Sched. 1, s. 15.
Factor not to be considered
(4) In determining whether to authorize a relocation of the child, the court shall not consider whether, if the child’s relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate. 2020, c. 25, Sched. 1, s. 15.
Burden of proof
(5) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child. 2020, c. 25, Sched. 1, s. 15.
Same
(6) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend the vast majority of time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child. 2020, c. 25, Sched. 1, s. 15.
Same
(7) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child. 2020, c. 25, Sched. 1, s. 15.
The Best Interests of the Child Test:
234In addition to the above considerations under the relocation provisions, the court must also consider the best interest factors under section 24 of the Act, which have been amended and expanded as follows under the amendments:
Best interests of the child
24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.
Primary consideration
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.
Factors relating to family violence
(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and
(h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.
Past conduct
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. 2020, c. 25, Sched. 1, s. 6.
Allocation of parenting time
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. 2020, c. 25, Sched. 1, s. 6.
Application to related orders
(7) This section applies with respect to interim parenting orders and contact orders, and to variations of parenting orders and contact orders or interim parenting orders and contact orders. 2020, c. 25, Sched. 1, s. 6.
235Subsection 33.1 (2) of the Act addresses the importance of the parties protecting children from conflict. It reads as follows:
- 1 Protection of children from conflict
(2) A party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding.
9. Analysis and Application of the Law:
236Section 29 of the CLRA now provides that the relocation of a child in accordance with section 39.4 constitutes a material change in circumstances unless the relocation had been prohibited by a court, in which case the relocation does not, in itself, constitute a material change in circumstances
237In this case, the father relocated with the child without notice to the mother or a court order in advance of his move. During this trial, he and his counsel conceded that the move was a breach of the Final Order for joint decision making and shared parenting. The father’s relocation to Barrie in breach of the Final Order and without the consent of the mother or court approval does not, in itself, constitute a material change in circumstances.
238The father is requesting that the court sanction a move that has already been made. The court’s analysis must therefore take this fact into consideration when applying the best interest factors.
239In so doing, the court applies the pre-amendment case law that is still good law. Although each case turns on its own particular set of facts, the court is mindful of parties who have imposed a status quo through unilateral decisions and without consulting or obtaining the consent of the other party.
240The legal status quo is not a status quo created by one party unilaterally taking matters into their own hands, without any consent of the other party. See: Pereira v. Ramos, 2021 ONSC 1736, at paragraph 38; L.M.B. v. F.J.D., 2020 ONCJ 239 at paragraph 31, per Justice Michelle Cheung.
241The father submits that the mother’s criminal charges for assaulting the child constituted a material change in circumstances necessitating the move to Barrie after the child was placed in his care and he lost his housing.
242In Gordon v Goertz, [1996] 2 SCR 27, the Supreme Court of Canada held that a material change in circumstances is one that has not have been foreseen or reasonably contemplated by the judge who made the original order. The change must be to the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child. Change is not enough. The change must have altered the child's needs or ability of the parents to meet the child's needs in a fundamental way. Further, the change should represent a distinct departure from what the courts could have reasonably anticipated in making the previous order. [See paragraph 12 of that decision.]
243A change will only be considered “material” if it is significant and long-lasting (Brown v. Brown, 2010 NBCA 5, 2010 CarswellNB 30 (N.B.C.A.); Haisman v. Haisman, 1994 ABCA 249, 1994 CarswellAlta 179 (C.A.), leave to appeal to the S.C.C. refused, [1995] 3 S.C.R. vi (S.C.C.)).
244The requirement of a material change in circumstances means that a motion to change cannot be an indirect route of appeal from the original parenting order. The court must assume the correctness of the first order and consider only the changed facts since the first order was made. See Docherty v. Beckett (1989), 21 R.F.L. (3d) 92 (Ont. C.A.).
245In the case before me, I find that there have been material changes in circumstances affecting the child’s best interests since the Final Order of Justice Murray. They are as follows:
The mother was criminally charged with assaulting the child and the child was removed from her care by the police and placed in the father’s care.
The mother and child were not able to have any in person contact for more than five months.
The mother was not able to vary her bail/release conditions for approximately six months (July 5, 2020), due to the Covid restrictions on criminal court operations, thus making the return of the child to her care and any unsupervised in person contact between her and the child impossible until the bail variation and the family court then so ordered.
The mother was unable to resume unsupervised parenting of the child until October of 2020, following the commencement of the family court proceedings.
246However, the court must also consider how these change in circumstances took place and must limit itself to whatever change is justified by the change in circumstances. See L.M.L.P. v. L.S., [2011] SCC 64. In so doing, the utmost consideration is always the child’s best interests.
247In my view, although the mother was criminally charged, resulting in the removal of the child from her care and the inability to have any in-person contact with the child for more than five months after her arrest, the father’s conduct played a large part in orchestrating these events.
248I find that the father was very intent on ensuring that the mother was criminally charged to gain an advantage in the parenting dispute with the mother over the child. I also find that the father did not cooperate in facilitating contact between the mother and the child for several months after she was charged, although the intervention of the Covid-19 pandemic certainly exacerbated these circumstances. I find that the father took advantage of these circumstances.
249Here, the father bears the burden of proving that the relocation would be in the best interests of the child. See section 39.4 (5) of the Act.
250The new provisions now require that the court consider the reasons for the relocation under section 39.4(3), which is a significant change from the leading case, the decision of Gordon v. Goertz, [1996] 2 S.C.R. 27.
251I first consider the legal factors under section 39.4(3) as they relate to this case:
- The reasons for the relocation:
252The father’s reasons for the move were not sufficient to justify such a radical departure from the status quo, nor is it in the child’s best interests.
253Although the Final Order that governed at the time provided for joint decision making and a shared parenting order, it is also not disputed that since the fall of 2016, a period of four years prior to the move, the child lived with the mother during the week and lived with the father two days every weekend. The father also had two mid-week visits with the child and had dinner at the mother’s home. This arrangement was by agreement of the parties.
254The child’s relocation to Barrie was therefore radical departure from the status quo that had existed for at least four years.
255The father’s evidence that he was suddenly losing his housing and could not find affordable housing in Toronto was misleading. In his email dated April 21, 2020 to the mother and the Society, filed as an exhibit, he suggested that he was being “forced” to leave at the last minute by April 30th and that he and the child were “temporarily” moving to Barrie while he looked for housing in Toronto.
256The father admitted that he knew since the summer of 2019 that his landlord was selling the house. He voluntarily signed a N11 agreement to leave in February of 2020 and received $7,500.00 in compensation from the landlord, an amount that was first revealed in this hearing.
257The father appeared to make little or no effort to find housing in Toronto before he moved to Barrie. He provided no evidence of a housing search although said that he looked at five apartments. He had funds of $7500.00 from his landlord if he needed to deposit first and last months rent for a prospective landlord.
258Despite stating that the move to Barrie was “temporary” while he looked for housing in Toronto, only 35 days later, the father had already signed a one-year lease in Barrie. In his email dated May 26, 2020, he advised the mother that he and the child were there for the “long-term”.
259Although the father is now paying less rent in Barrie for a two-bedroom apartment then he would in Toronto, he is capable of finding and paying for an affordable apartment in Toronto, as he has done in the past.
260The father’s evidence that he needed the help of his sister and mother to care for the child while he completed his WSIB internship after the child was removed from the mother’s care was also questionable. The father provided no documentation that he was actually enrolled in an internship program. He testified during the hearing that he was unemployed and in receipt of WSIB income. He also testified that the WSIB training was online during Covid, something he would have known before he moved to Barrie in April of 2020.
261It was also not clear how much child-care help his mother and sister could actually provide. It is not disputed that his sister is disabled and uses a walker and that his mother is very elderly.
262Although the father’s life in Barrie may be easier for the father as he has more affordable rent and he may receive some babysitting help from his sister, I find that the father’s reasons for the move to Barrie were not sufficient to justify such a radical departure from the status quo.
- The impact of the relocation on the child:
263The child was born and raised by both parents in Toronto and had never lived anywhere else. He lived with the mother during the week and with the father on the weekends, but also saw his father during the week. I find that until the mother was criminally charged, the child had been primarily in her care for more than four years.
264Although the father acknowledged that this had been the parenting arrangement for four years, he would not agree that the child primarily resided with the mother. He insisted that the parenting was completely shared based on the number of hours that the child spent with him on the weekend compared to the number of hours that the child was in school during his mother’s care during the week.
265The move has had a very significant and emotionally difficult impact on the child. He no longer has daily contact with his mother or primarily resides with her. The move has greatly affected their relationship.
266The move had also very significant impact on the child’s relationship with his closest friends, M., and K. whom the court heard a lot about in this trial, his school environment, his teacher, his home community, and extended family in Toronto.
267The father acknowledged that M. and K. were very close friends of the child and that the child considered them his best friends but submitted that he will make new friends in Barrie.
- The amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons;
268Although there is no question that the child spent a significant amount of time with the father every weekend and the father was actively involved in his life, the child lived and slept at the mother’s home five days every week and went to school in his mother’s neighbourhood, which is a short walk from their home. It is not disputed that the when the child referred to “home”, he meant his home with his mother, and when he referred to his father’s home it was “Daddy’s home”.
269Ms Manchanda described a very close and strong attachment between the mother and the child. I find that until the mother was criminally charged in January, the mother was the primary caregiver during the week and the father was the child’s primary caregiver on weekends.
- Whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement;
270The father did not comply with the notice requirements under section 39.3, but the court finds that this would be unfair to consider, given that the prescribed forms and notices did not exist in April of 2020.
271However, the father concedes that he did not comply with the Final Order for joint custody and shared parenting when he unilaterally moved the child to Barrie without the consent or notice of the mother.
272Further, the notice that the father provided the mother was completely unacceptable under the existing law at the time prior to the amendments to the Act. It is clear from the evidence that the father would not have notified the mother that he and the child had moved to Barrie in April of 2020. The only reason that he sent the email on April 21, 2020 (when the child was already there) and then later on May 26, 2020 was at the urging of the family service worker.
- The existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside;
273There is no specified geographic area in which the child was to reside in the Final Order, but the shared parenting schedule set out in the Order contemplates that the parents would reside reasonably close to each other in order to facilitate such an arrangement.
- The reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses;
274The father’s proposal that the child spend only three weekends each month with the mother in Toronto is not reasonable given that the child primarily resided with the mother during the week in Toronto.
275Further, the father’s statement that the commute from Toronto to Barrie is not very different than the commute from the mother’s home in Etobicoke to the father’s former Toronto home in High Park is not reasonable. The distance between the father’s home in Barrie and the mother’s home in Etobicoke is now approximately 94 kilometres. The father estimates that this drive is approximately one hour each way in good traffic.
276The father is comparing travel by car on the highway (400N or 404) to travel by public transit in Toronto. The mother does not own a car, nor can she afford one, and does not drive. She relies on a bicycle or public transit (TTC) for transportation, which is reasonably good in Toronto.
277The mother will not be able to drive back and forth by car to Barrie to exercise parenting time, and it will be extremely difficult if not impossible for her to exercise any mid-week parenting with the child or attend extra-curricular activities and school events. Public transit to Barrie from Toronto is well over 2.5 hours one way or 5 hours round trip.
278It is worth noting that when both parents lived in Toronto, in addition to every weekend, the father saw the child twice each week at the mother’s home when he took D. to Beavers on Tuesdays and then again on Thursdays for dinner at the mother’s home.
279The father has proposed that he will do all of the weekend driving and in fact, during these proceedings, the father consented to an order stipulating this travel arrangement. To date, he has complied with this temporary order and has paid the travel expenses.
280The court is not satisfied that the father will continue to comply with these arrangements once these proceedings are concluded and there is no court oversight. He will also not be able to facilitate any mid-week parenting time with the mother. Further, the commute will be extremely difficult during inclement weather such as rain or snowstorms and leaves the mother’s parenting time with the child essentially in the father’s control.
- Whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance:
281As noted, the father did not comply with the Final Order when he changed the child’s school and unilaterally relocated the child to Barrie without the mother’s consent. However, since these court proceedings were commenced by the mother, the father has complied with the temporary parenting order and has driven the child to and from Toronto every weekend to visit his mother, in accordance with the February 21, 2021 Order.
282The mother’s compliance with the Temporary Order dated February 21, 2021 has been generally good, although she acknowledged that she did not follow Covid-19 government health protocols on some of the weekend visits with the child when she permitted overnight sleepovers with the child’s two best friends and one other adult. This is a breach of the temporary order for parenting.
283The legislation also provides under section 39.4 (4) that the court cannot consider whether a parent would relocate without the child if the court prohibited the relocation. In this case, given that the move has already occurred, the court therefore can not consider whether the father would remain relocated in Barrie if the child is ordered returned to Toronto, and will not do so.
10. Analysis of the Best Interests’ factors under Section 24 of the Act:
284The court is also required to consider all of the relevant best interests’ factors in making its determination in this case. They are as follows.
The child’s physical, emotional and psychological safety, security and well-being:
285The Act now provides that the court must give primary consideration to the child’s physical, emotional, and psychological safety, security, and well-being in determining his best interests.
286The court finds that both parents can generally positively meet the child’s need for physical, emotional, and psychological safety, as well as his security and well-being.
287However, the court does have concerns about both parents’ abilities.
288Regarding the father’s ability to meet the child’s needs for emotional and psychological safety, the court has the following concerns:
a. Abruptly removing the child from his school, community, and close friends following the mother’s arrest and transferring the child to a new school more convenient to the father with little or no concern about the emotional impact on the child, particularly after being suddenly removed from his home and his mother. The father gave little consideration to the emotional impact of this on the child.
b. Failing to cooperate or actively facilitate contact between the child and the mother after the mother’s arrest, and if anything, actively resisting this (until these proceedings). The father gave no consideration to the significant emotional and psychological impact this had on the child.
c. Breaching the Final Order for joint custody in moving the child from Toronto without consultation or notice to the mother or obtaining her consent, again undermining the child’s ability to have a relationship with the mother, whom D. primarily lived with and was very attached to before the mother’s arrest; and also removing him from his community, friends and supports, including his counselling sessions at the George Hull Centre, as recommended by Holland Bloorview. Again, the father had little or no insight about the significant emotional and psychological impact that this had on the child. Or if he did, he was not concerned about it.
d. Repeatedly reporting the mother to the police and involving the child in police and child protection investigations regarding unsubstantiated allegations about the mother.
289Regarding the mother’s ability to meet the child’s needs for emotional and psychological safety, the court has the following concerns, the court had the following concerns:
a. Failing to control her anger towards the father and/or his family members and having difficulties with self-regulation in the presence of the child during parenting exchanges (pick up and drop off) and at the first in-person visit. Both of these incidents of the mother getting angry were in the presence of the child. The mother gave little consideration to the emotional impact of this conflict on the child.
b. Difficulty in managing the child’s behaviours, such as when he is acting out or having a temper tantrum, sometimes making the situation worse and exacerbating the child’s sense of emotional and psychological security. Although the mother was very remorseful about the incident that led to her arrest and she has taken more parenting courses since then, the court is still concerned that she experiences challenges in this area.
The child’s needs, given the child’s age and stage of development, such as the child’s need for stability:
290Both parents demonstrated a strong understanding of the child’s academic and social needs. They both showed a good understanding of his level of development.
291Both parents are loving parents who are devoted to him. Until the father’s move to Barrie, they were both very involved in the child’s activities.
292The mother has a stable home in Toronto and lived there with the child since on or about 2014. The father went through a period of instability when he left his home in Toronto and moved to Barrie in April of 2020. He has now been stable in Barrie for approximately 14 months.
293The child had the psychological stability of being with the mother every day during the week and with his father on the weekends until the mother was criminally charged in January of 2020. He then no longer had contact with his mother for several months. The child now has some stability in the current arrangement.
The nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life:
294The child has a close and loving relationship with both parents.
295The child has a very strong attachment to the mother. It was apparent that the child was very upset and possibly traumatized when he lost all contact with the mother after she was criminally charged. The evidence of the family service worker when she described the child’s reaction at the H. School after he had not seen the mother for at least a week was very compelling. The child was repeatedly blinking his eyes, would not answer questions and repeatedly asked for his mother and asked and when he could see her.
296The child appears to have developed a close relationship with paternal aunt and grandmother since moving to Barrie and had a positive relationship with his maternal grandmother.
Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent:
297Although the father has complied with the temporary parenting order since the mother started these proceedings, the evidence demonstrates that the father has placed little value on the mother’s relationship with the child. The court was struck by how dismissive the father was during his testimony and in his affidavits regarding the child’s relationship with the mother.
298The court is very concerned that the father will not facilitate the child’s relationship with the mother if the child continues to primarily reside with him in Barrie.
299The father described the mother as “dangerous” and someone who could “cause the death of my child.” He was extremely critical of her parenting. He was intent on having the mother criminal charged for the “rug burn” incident and was not satisfied when criminal charges were not laid following the family service worker’s initial discussion with the CYAC officer.
300He brought the child to the police station the very next day to make a further report about the same incident to the police.
301He has made multiple reports to the police about her and continued to so after her arrest. None of the reports made after her arrest were substantiated.
302Once the mother was charged, he did not facilitate any in-person contact between the mother and the child for more than five months. The father minimized the emotional harm that this caused to the child and had no insight regarding how this could have harmed the child.
303The father’s conduct during the child’s first in-person visit his mother after five months of no contact was very telling. He insisted that the child have no physical contact with her, that he not eat her home-baked food and called the police to report a violation of her bail conditions because she arrived a few minutes earlier than the family service worker and responded to the child’s greeting. Although the mother and the paternal aunt had a short but heated exchange, and the mother stepped back, he called 911 to report the mother for numerous alleged offences. He refused to cancel the 911 call even though the social worker arrived a few minutes later and saw a calm scene. He was very upset when the police did not charge the mother.
304It was not disputed that the child was overjoyed to see his mother after more than five months. The father did not seem to care and was only intent on having the mother criminally charged.
305The evidence does not support the father’s view of the mother as an abusive, criminally negligent, and bad parent who could “cause death” to the child. The evidence demonstrates that the mother is a strong and loving parent, who is not perfect and has clearly struggled with managing some of the child’s behaviour, but whom the child is very attached to and has done well in her care.
306The mother has demonstrated insight into her parenting challenges and has taken steps to change her child management strategies through parenting courses and counselling.
307Finally, and most significant, is he father’s decision to unilaterally relocate to Barrie without the mother’s consent and without even notifying the mother until he was told to do so by the society worker.
308It is certainly true, as counsel pointed out, that since the father retained counsel and commenced his motion to change, he has made significant advancements in facilitating the mother’s relationship with the child. He has agreed to significantly increase the mother’s parenting time. All the increases in the mother’s parenting time in these proceedings have been on consent. He has also facilitated the mother’s parenting time by driving the child back and forth to Toronto to see his mother.
309The court is very concerned, based on the father’s past conduct and his view of the mother, that this commitment will change once there these proceedings are concluded and there is no longer court oversight.
The history of care of the child:
310Both parents have been actively involved in the care of the child since his birth. The court finds that until the fall of 2016, the parents had a shared parenting schedule with the child. Notwithstanding the father’s claims to the contrary, starting in the fall of 2016, the mother was the child’s primary and dominant caregiver until January 15, 2020 when the father reported the mother to the society and the police regarding alleged criminal conduct.
The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained:
311The child is 8 years old and there was no independent counsel appointed by the Office of the Children’s Lawyer. However, following the criminal charges and the removal of the child from the mother’s home, there is evidence that the child repeatedly asked when he could go “home” and that he defined home as his mother’s home.
312Based on the independent evidence, the child appears to love and be comfortable in the care of both parents.
313The evidence also demonstrates that the child is struggling with the conflict between his parents and is very aware of it and these difficulties have affected his behaviour, as documented in the Holland Bloorview Assessment.
Any plans for the child:
314Both parents have appropriate plans for the child. Both have appropriate housing for the child. They are attuned to the importance of education for the child. Both plan to enrol the child in the school in their respective neighbourhoods.
315The mother has a good support network in Toronto and has counselling and supportive services through LAMP and wishes to return to George Hull for counselling. She is also open to the voluntary support and assistance from the society.
316Both parents involve the child in extra-curricular activities. There was detailed evidence by both regarding the activities that they do with the child.
The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child:
317Both parents can meet the child’s physical needs.
318The court has concerns about the father’s ability to meet the child’s emotional needs, given his efforts to marginalize the mother in the child’s life, as noted previously.
319The court was also concerned that all the family therapy and the child’s counselling at George Hull stopped following the mother’s arrest and the father’s move to Barrie, notwithstanding the clear recommendations of Holland Bloorview.
320The father states that this was a result of the mother’s criminal charges, but Ms Manchanda confirmed it was also a result of the father and child’s move to Barrie. The father has made little efforts to engage the child in therapy since he moved to Barrie. Although the father had some involvement with New Path, a Barrie agency, with the assistance of Ms Manchanda, ongoing counselling has not occurred.
321The court also has some concerns about the mother’s ability to meet the child’s emotional needs. She has struggled with the child’s emotional dysregulation and behaviour but she has sought help in learning more effective child-management and parenting skills. The events that led to the “caging” incident, although an effort by the mother to restrain the child’s tantrum, do suggest that the mother sometimes has difficulty managing the child’s behaviour.
322The mother’s decision to contravene the Covid guidelines by permitting the sleepover with the child’s two best friends and one other adult during a weekend visit is also concerning. The mother testified that the child really wanted the sleep-over because he missed his friends, however, the mother is the parent and she must make these decisions, not the child, even if they are difficult for the child.
323The mother has taken a number of parenting courses and followed through with the Holland Bloorview recommendations by also completing the Triple P Parenting program as well as program at Families in Transition, following receipt of their assessment. She continues to be open to support and counselling.
324The father has not and has not taken any of the parenting courses recommended by Ms Manchanda or Holland Bloorview. The father has made it clear in his testimony that he did not agree with Ms Manchanda that he would benefit from the “Caring Dads” program.
325The father submits that he is better placed to meet the child’s educational needs during the week. The child has done very well at school in Barrie and his report card is excellent. According to the father, he is calm and has no behavioural issues, which the father claims is in contrast when he was at West School.
326The father deposed that the child’s behavioural issues were beginning to return at W. School and that he was not doing as well in that program.
327However, the evidence contradicts this. At the time the father removed the child from W. School, the evidence from his grade one teacher, as reported in the Holland Bloorview assessment, is that the child had made significant improvements from both a behavioural and an academic standpoint. He was doing well academically and did not have behavioural issues, other than some minor episodes of aggression at the beginning of the school year. He can get along well with his classmates. He received the ‘Most Improved Student in Class” award at W. School in late September of 2019.
328As well, significantly, the child is enrolled in online learning in Barrie and had very little interaction with his peers, except virtually. The child was enrolled in an in-person classroom at W. School.
329The father is more adept at online learning then the mother. However, the mother sought assistance and support to help her registering the child with the online learning and was eventually able to set it up when the child was with her on Mondays. The mother also believes that the child would benefit from in-person schooling.
330The court finds that both parents are capable of meeting the child’s educational needs.
The ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child:
331The court has concerns about both parents’ ability to communicate and cooperate with each other. After she was criminally charged, the mother understandably did not communicate with the father upon the advice of her criminal counsel. The mother testified that she was afraid to communicate with the father for fear of being criminally charged.
332The father also acknowledged that he did not communicate with the mother at all after she was charged, even though he was permitted to do so. He did not communicate with her that he had removed the child from his school and registered him in a school in his neighbourhood. He did not communicate her that he was moving to Barrie with the child until he was urged to by the family service worker.
333The father has made somewhat more of an effort to communicate with the mother by email since these court proceedings have commenced. He has sent the mother emails about the child’s food journal at his home. He has also provided her with the child’s report cards.
334After her criminal charges were withdrawn, the mother acknowledged that she still does not wish to communicate with the father. When the father sent her an email with the child’s food journal home attached, she told the father to stop sending these emails and called him a “megalomaniac”.
335Prior to January of 2020 and the events that unfolded after the mother’s criminal charges, there was some evidence of a history of communication between the parties, albeit with conflict. For example, the parents participated in therapy together at George Hull to address the child’s behavioural problems and their relational difficulties. The father was welcomed for dinner at the mother’s home on Tuesdays and Thursdays and the parents and child had dinner together. Notwithstanding these good efforts, there was still significant conflict.
336Very unfortunately, the events that transpired in January of 2020 and thereafter have created a tremendous amount of mistrust and hostility. The parties, and in particular the mother, will need to work hard to re-build their communication for the sake of the child.
Family violence:
337Family violence has been re-defined and given a heightened importance as a best interests’ factor in the recent amendments to the Act. In I.A. v. M.Z., 2016 ONCJ 615, Justice Stanley Sherr wrote that a starting point to assess a child’s best interests when making a parenting order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests to ensure that his or her caregiver be physically and emotionally safe.
338Both parents have used excessive physical discipline with the child in the past, thus causing him to experience violence.
339The court is concerned that the mother is sometimes unable to regulate her anger and has difficulty managing the child’s behaviour.
340The mother has acknowledged this concern. She no longer uses physical discipline and she expressed tremendous remorse for the events that transpired leading to the criminal charges. She has also taken a number of parenting courses, including the Triple P program recommended by Holland Bloorview.
341The father has not acknowledged using any physical discipline and has denied it, notwithstanding the verification of the use of force by the Children’s aid Society regarding the October 2019 incident. The father has not taken any parenting courses as recommended by the society or Holland Bloorview and does not believe he needs them. The court is concerned by the father’s denial, lack of insight and refusal to take responsibility for his actions.
Any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child:
342The mother’s criminal charges have been withdrawn and there are no other proceedings.
Protection of the child from conflict:
343Both parents have failed to protect this child from their conflict and have demonstrated poor judgment and lack of insight in this area.
344The father did not hesitate to involve the child in a police investigation when he brought the child to the police station to report the “rug burn” incident to the police involving the child’s mother. This was the second report that the father made about the same incident because he was unhappy with the child protection investigation, even thought the child had already been interviewed by the child protection worker.
345The father also had no concerns calling 911 during the child’s first in-person visit with the mother in more than 5 months despite repeated requests to cancel the 911 call by the child protection worker. He did not seemed concerned that the child’s visit with his mother had to occur in the presence of two officers waiting in their cruiser, nor was he concerned that the child had to be questioned by the police about his mother following the visit. Further, the father was visibly upset in front of the child because the police would not criminally charge the child’s mother for what was a completely unnecessary involvement of the police by the father.
346The father showed no insight at trial into the impact of this conduct on the child. He continued to justify his actions.
347Similarly, the mother (who is an artist) did not seem concerned that she had a painting of the father that she had created and placed in the hallway of her home which depicted the father as “a bad wizard” and she and the child as the “sad clowns”. The child was aware of the painting and knew what it depicted.
348The evidence also demonstrates that the mother has yelled and expressed anger at the father and his extended family members in front of the child. The court heard about at least two of these incidents during the trial, including one in which the mother yelled at the father “Why did you have a child with me?” in the child’s presence. The mother also yelled at the father’s sister during the first in-person visit, also in the child’s presence.
349According to the family service worker, the child has expressed that his father will have to move into a basement apartment if the child returns to Toronto. The child seemed knowledgeable of the father’s finances and the father’s unhappiness about returning to Toronto.
Past conduct:
350This is addressed under the Family Violence section.
11. Findings:
351In carefully assessing and considering all of the above best interests factors as well as the factors that the court must consider under the residence and relocation provisions of the Act, the court finds that it is in the child’s best interests that he be immediately returned to his home community of Toronto and that he primarily reside with the mother during the week, which is the status quo that existed for four years prior to the father’s unlawful move.
352In considering all of the factors in the best interests analysis, I find that any benefits that may have occurred by the father’s move to Barrie are far outweighed by the significant loss of the child’s parenting time and relationship with his mother and the loss of his community, friends and counselling supports at George Hull.
353The father has not discharged his onus under section of the 39. 4(5) of the Act, for the reasons outlined in paragraphs 251 to 283 of this decision.
354I also find that it is in the child’s best interests that the mother have sole decision-making responsibility for the child. In balancing all of the factors that I have considered in this determination, including the very poor history of communication between the parents, and the factors set out in the best interests analysis, the court trusts the mother more than the father to meet the child’s emotional and psychological needs, and most importantly to facilitate his relationship with the father.
The Parenting Time Schedule:
355In determining what parenting time is in the best interests of the child and how it should be allocated, the court has also considered the “best interests” factors set out in section 24 of the Act, as well as all other relevant considerations.
356Subsection 24 (6) of the Act provides that in allocating parenting time, the court should give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.
357The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being. Moreover, the child has a right to have contact with both parents. See: Klymenko v. Klymenko, 2020 ONSC 5451.
358The court finds that if the father continues to reside in Barrie, then he will have parenting time with the child two out of every three weekends. He will also have extensive holiday parenting time with the child. Due to the distance between the parties, the court will not order mid-week parenting time, as the court does not want the child’s school week to be disturbed by excessive travel, unless the father returns to Toronto. Virtual parenting time will also be ordered.
359The father’s parenting schedule will not start right away. The court would like the child to have an opportunity to re-settle in the mother’s home during the week and to given him a period of stability while he adjusts to returning to his previous school.
360The court finds that it is in the child’s best interests to make communication and conduct orders pursuant to section 28 of the Act to protect the child from conflict.
361The court will order that, unless there is an emergency regarding the child, the parents shall communicate in writing, either through email, WhatsApp or the My Family Wizard software program. There will be other terms ordered that will require respectful and timely communication about the child’s welfare.
362There will be an order that neither party shall demean nor criticize the other in the presence of the child. The parties are expected to support the other parent’s relationship with the child.
11. The Issue of Contempt:
363In light of the final orders that I have made in the mother’s favour in this judgment, I decline to impose a contempt finding at this time. The contempt power is a discretionary one and it should be exercised cautiously. As the Court of Appeal has stated, contempt powers are meant to be used as a process of last resort, particularly in family law cases. See Chong v. Donnelly, 2019 ONCA 799.
12. Conclusion and Final Order:
364I make the following Final Order replacing the Final Order of Justice Murray dated March 18, 2016 and all other temporary orders:
The child shall have his primary residence with the mother.
Commencing no later than September 9, 2021, unless otherwise agreed, the child shall be returned to Toronto, Ontario forthwith and be re-registered at the W. School or a school in the mother’s catchment area.
The mother shall have sole decision-making responsibility.
The mother shall consult the father by email about any major decision concerning the child. After consultation, she will make the final decision.
The mother shall inform the father of any contemplated significant decision regarding the child in writing. Within 7 days after receiving this information, the father may provide the mother with a written response containing his view. If the parties do not agree, or if the father does not respond within 7 days, the mother shall make the final decision and advise the mother about it.
The mother shall advise the father in writing of all appointments with any doctors, teachers, or other service providers for the child. She shall keep him updated with their names and contact information.
The parties shall immediately notify each other by phone, text, and email if the child has a medical emergency while in their care. They shall advise the other parent of the nature of the emergency, where the child has been taken for treatment and the name of any doctor treating the child.
The father shall have permission to communicate or meet with any doctor, teacher, principal, or any service providers for the child. The mother shall, upon the father's request, execute any direction or authorization to permit the father to do this. The mother shall notify the father in writing of all service providers for the child and shall keep the father updated with names and contact information.
The father shall be permitted to obtain his own copies of school report cards and notices directly from the school. In the event that the school does not provide second copies, then then mother shall provide the father with copies of the child's report cards.
The father shall be given notice of any school events to which parents are invited and be permitted to attend. He shall also be permitted to arrange and attend at parent-teacher meetings at different times than the mother.
The mother is the custodian of the child’s identification documents, including the child’s passport and shall provide the father with a copy of the child's health card. Should the father require the child’s passport for travel, the mother shall deliver same to the father upon request, subject to the travel provisions set out below.
The mother shall provide the father with the schedules of extracurricular activities of the child as soon as he is enrolled in same, and promptly notify him of any changes to these schedules. Neither parent shall enrol the child in any extra-curricular activities without the other parent’s written consent if the activity interferes with the other parent’s scheduled time with the child.
Neither parent shall make disparaging or derogatory comments or talk negatively about the other parent in front of the child or engage in negative conduct about the other parent.
Unless there is an emergency, the parents shall communicate by email and shall respond to all time-sensitive emails concerning the child as soon as possible and no later than 12 hours. In the event of an emergency, a parent is permitted to text or call the other.
The father shall be listed as one of the emergency contacts with any school or any service provider (such as doctors, dentists, camps, or counselors) for the child.
The father shall have regular parenting time with the child as follows, subject to the conditions and holiday provisions set out below:
a. Commencing Friday, September 17, 2021, two out of every three weekends from Fridays at 5:00 PM until Monday morning before school commences. The father will have parenting time with the child for two consecutive weekends, followed by the child spending one weekend with the mother. The father shall pick up the child at the mother’s home and return the child to school on Monday morning. The parenting time shall extend to Mondays at 7:00 PM if the Monday is a statutory holiday or Professional Development Day.
b. Virtual parenting time with the child every Wednesday from 7 p.m. until 7:30 p.m.
c. If the father relocates to Toronto, then the mid-week Wednesday visit shall be from after school on Wednesday to Thursday morning, pick up and drop off by the father at the child’s school.
d. This regular parenting schedule does not start until September 17th, 2021, to permit the child sometime to settle in and to re-adjust to his mother’s home.
- The holiday parenting schedules set out below shall take priority over the regular parenting schedule:
a. Starting in 2021, the child shall spend equal time with the parents during the winter school break. The child shall spend the first half of the winter school break with the mother and the second half with the father in odd-numbered years. The child shall spend the first half of the winter school break with the father and the second half with the mother during even-numbered years. This is subject to the division of Christmas Eve and Christmas Day set out below.
b. Starting in 2021, the parties shall alternate Christmas Day and Christmas Eve each year. In even-numbered years, the child shall be with the father from December 24 at 1 p.m. until December 25 at noon and with the mother from noon on December 25 until 1 p.m. on December 26. In odd-numbered years, the child shall be with the mother from December 24 at 1 p.m. until December 25 at noon and with the father from noon on December 25 until 1 p.m. on December 26.
c. Starting in 2022, the child shall spend the March school break with the father in even-numbered years and with the mother in odd-numbered years. The March break will attach to the parents’ regular parenting time weekend.
d. In 2022, the mother shall have two weeks of exclusive parenting time with the child during the summer – one week in July and one week in August. She shall advise the father in writing by May 15, 2022 what weeks she is choosing. The father shall also have two weeks of exclusive parenting time with the child during the summer – one week in July and one week in August. He shall advise the mother in writing by May 31, 2022 what weeks he is choosing.
e. Starting in 2023, the child shall spend one week on and one week off with the parents during the summer school break. The first week will be with the mother and will start on the Sunday following the end of school. Exchanges shall take place on Sundays at 6 p.m.
f. The child shall spend Mother’s Day with the mother if it would otherwise be the father’s weekend with the child. He will have the child starting from 10:00 a.m. on Mother’s Day.
g. The child shall spend Father’s Day with the father if it would otherwise be the mother’s weekend with the child. He will have the child starting at 10:00 a.m. to 5:00 PM on Father’s Day.
h. For the child’s birthday, the child shall remain with the parent according to the regular schedule, but that parent shall arrange a video call to the other parent at 5:00 p.m. on the birthday, or at such other time as the parties may agree in writing.
i. Holiday parenting time will take priority to the regular parenting schedule.
Either parent may attend at special events at the child's extracurricular activities outside of school on days that they are not scheduled to be with the child, such as for a concert, competitions, or games.
Each parent shall be entitled to have reasonable telephone or “Facetime” contact with the child while he is in the care of the other parent. Such telephone contact shall not exceed one call daily. Both parents shall make their best efforts to facilitate this access.
The parents are not to change this schedule without the consent of the other parent. The only exception is if a child is too ill to exercise access on the father's weekend, in which case the mother must provide the father with a doctor's note proving this after the weekend if requested by the father. If a visit is cancelled for this reason, it shall be made up on the following weekend.
The mother shall not move the child’s permanent residence further than twenty-five kilometres from her current residence without the father’s written consent or a further order of the court and shall comply with the Residence and Relocation provisions and notice requirements in the Children’s Law Reform Act.
Neither party shall remove or shall help anyone else to remove the child from the Province of Ontario, without the consent of the other party. Such consent not to be unreasonably withheld provided that: the party requesting travel with the child shall provide a detailed itinerary, including departure and return dates, flight numbers or other transportation plans, place of stay and emergency contact information. Neither party shall deny a reasonable travel request for vacation or family purposes and will provide notarized consents if requested.
The balance of the claims made by the parties are dismissed, including the mother’s motion for contempt.
365If the mother wishes to seek her costs, then she is to serve and file written submissions within 15 days of the release if this decision. The father shall serve and file his written response within 15 days after he has been served with the father’s costs submissions. The submissions shall not exceed four pages, not including any bill of costs or offer to settle.
366The court thanks counsel for their professionalism, advocacy, and civility throughout this trial.
Released: September 7, 2021
Signed: “Justice Sheilagh O’Connell”
Footnotes
- The amendments to the Children Law Reform Act came into force and effect on March 1, 2021. Unlike the Divorce Act amendments, the CLRA does not contain an explicit transition provision governing the amendments.
- Sections 39.3(1) and (2) of the CLRA amendments.
- Page 1 of the Report.
- Page 5 of 8 of the Report.
- These reports are in addition to reports made by the father to the society in 2018 and 2017 (both of which were closed at intake).
- However, father’s counsel had some qualifications regarding the notice requirements and the prescribed forms in the new residence and relocation provisions, which clearly did not exist at the time of the father’s move.