ONTARIO COURT OF JUSTICE
BETWEEN:
N.P.
Applicant (Responding Party)
— AND —
D.H.
Respondent (Moving Party)
Before Justice Szandtner
Heard on February 24 and 25, 2025
Reasons for Judgment released on March 3, 2025
Lauren Israel counsel for the moving party (respondent) father
Dilani Gunarajah counsel for the responding party (applicant) mother
SZANDTNER J.:
Part One – Introduction
1This hearing was about the respondent D.H.’s (the father’s) motion to change the court’s final orders of Justice Sherr dated February 2, 2018, July 20, 2018 and May 17, 2019.
2The father’s motion to change was issued on September 20, 2022. It sought variations with respect to child support, primary residence, decision-making and parenting time. The mother’s response sought to dismiss the claims and to vary the parenting time order.
3The parties filed a consent at trial with respect to a variation of the existing child support order dated February 2, 2018 payable by the father to the mother to reflect the increase in minimum wage since 2020. The parties agreed that the father shall pay the ongoing amount of $287.00 per month in accordance with an imputed income of $33,540.00 commencing March 1, 2025. The parties agreed that arrears of child support are fixed at $3,461.00 and shall be repaid at $50.00 per month, commencing on March 1, 2025. The parties further agreed that the father shall advise the mother within 10 days if he becomes employed.
4At the hearing, the father had withdrawn the variations he sought on all but the parenting schedule in the May 17, 2019 order. He also sought to vary the travel consent provision. The parties each sought a different variation of the parenting schedule ordered. The mother sought to preserve the existing travel provisions.
5The court relied on the trial affidavits filed by the parties in this proceeding. Both parties were represented by counsel. Each party was their only witness and was subject to cross-examination by opposing counsel.
6The issues for the court to determine are as follows:
a) Has there been a material change in circumstances affecting or likely to affect the best interests of the child?
b) If so, what parenting orders are in the child’s best interests? What parenting time should be ordered for the father?
Part Two – Background
7The mother is 36 years old. The father is 42 years old.
8The parties never cohabited. They have one child together born in 2017 (the child).
9The parties have been litigating since shortly after the child was born.
10The child has primarily resided with the mother.
11The court gradually increased the father’s parenting time from being fully supervised to unsupervised day visits and then to overnight visits.
12On July 20, 2018, on consent, a final order was made that the primary residence and decision-making responsibility for the child shall be with the mother. On May 17, 2019, the parties consented to the final order. It set out a graduated parenting time schedule with the child for the father.
13The mother totally denied the father parenting time commencing in November 2021. He did not see the child again until after the court made its enforcement order on August 10, 2022. The mother made allegations of abuse and suspended father’s parenting time on that basis. The Children’s Aid Society of Toronto and police investigated and the allegations were not verified.
14In January 2022 the mother emailed the father that she was relocating with the child. She did not tell him where she was relocated to or when. She moved with the child to Owen Sound in January 2022 and returned to Toronto six weeks later.
15On July 3, 2022 the mother emailed the father that she was relocating with the child and again did not tell him where she was relocating to or when. On July 13, 2022 the father brought an enforcement motion and opposed the mother and child’s relocation to Owen Sound.
16On November 18, 2022 Justice Sherr heard the relocation motion. On a temporary basis the court ordered that the child was to be returned to Toronto by December 31, 2022. The parenting schedule for the father set out in the August 10, 2022 order was to remain in place until December 24, 2022. A Christmas schedule was ordered. Starting January 6, 2023 at 9 pm the father’s temporary parenting time was ordered to resume on alternate weekends as set out in paragraph 5 of the final order and on each Wednesday from 4:30 pm to 7:30 pm.
Part Three – Material Change in Circumstances
3.1 Legal considerations
17Section 29 of the Children's Law Reform Act (the Act) provides the statutory authority for changing a parenting order. It states:
A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.
18In L.M.L.P. v. L.S., [2011] SCC 64, the Supreme Court stated that the change must be substantial, continuing and that “if known at the time, would likely have resulted in a different order.” The Supreme Court stated that it must limit itself to whatever variation is justified by the material change of circumstances.
19On a motion to change, the court has the option of restricting changing the existing order to address a specific issue, while maintaining its integrity. See: Elaziz v. Wahba, [2017] ONCA 58.
3.2 Analysis
20The court has reviewed the family’s history since the 2019 order was made.
21In 2020, the child was diagnosed with autism. Furthermore, the mother unilaterally stopped the father’s contact with the child for eight months and attempted to relocate three hours away without notice to the father, the consent of the father or a court order.
22This significant diagnosis and these events constitute a material change in circumstances likely to affect the best interests of the child. Taken together, they permit the court to undertake a review of the parenting schedule and travel provisions.
Part Four – Parenting Schedule
4.1 Legal considerations
23Subsection 24 (2) of the Children’s Law Reform Act R.S.O. 1990 (the Act) provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests.
24Subsection 24 (3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child. It reads as follows:
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,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate 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.
25In determining the father’s parenting time, the court must consider the relevant best interests considerations contained in subsections 24 (2) to (7) of the Act.
26In particular, subsection 24 (6) of the Act states that 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.
27The parties differ in the parenting time orders they seek at this hearing. The father seeks the following which is not agreed to by the mother:
a) Alternate weekends from Saturday at 10 am to Sunday at 7:00 pm. Pick up and drop off at the Toronto Marine Unit, Police Station. (Toronto Marine Unit)
b) Statutory holidays that are an extension of his alternate weekends are included and drop off to be at the Toronto Marine Unit on Mondays at 7:00 pm.
c) A graduated summer schedule that evolves from three non-consecutive weeks with the child in 2025. Commencing in 2026, the father shall have four weeks of summer parenting including two non-consecutive weeks in July and two non-consecutive weeks in August. Commencing in 2027, the parties shall have a week on and week off schedule for the child during his ten week summer break. All visits to commence Saturday at 12:00 pm to Saturday at 7:00 pm. Pick up and drop off at the Toronto Marine Unit. The father shall facilitate a video chat by Facebook messenger with the mother on Tuesdays at 6:30 pm.
d) The father seeks to have the child for the entire March break in odd years and the mother to have the entire March break in even years. The exchanges are to occur from Sunday at 7:00 pm to Friday at 7:00 pm at the Toronto Marine Unit.
28The mother seeks the following parenting time orders which are not agreed to by the father:
a) An order that the father’s alternate weekends commence after school on Friday with a pick-up at school at 3:00 pm to Sunday at 5:00 pm, drop off at the Toronto Marine Unit.
b) Statutory holidays are divided between the parents on an even and odd year basis. (including Family Day, Easter Friday/Monday, Victoria Day, Canada Day, Labour Day, Thanksgiving Monday and the child’s birthday). Father to have odd years and the mother to have even years. The father to have the child from 10:00 am to 6:30 pm on each statutory holiday and pick-up and drop-off shall be at the Toronto Marine Unit.
c) The mother seeks an order to divide the March break each year from pick up at school to Wednesday at noon for the mother (even years). The father to have from Wednesday at noon to Sunday at 8:00 pm (even years). The reverse in odd years.
d) Father to have three weeks with the child during the summer holidays; the first week of July, the first week of August and the last week of August. All visits shall commence on Saturday at 12:00 pm to Saturday at 6:30 pm. Pick up and drop off to be at the Toronto Marine Unit. The father to facilitate a video chat with the mother by Facebook messenger on Tuesdays and Thursdays from 6:00 pm to 6:30 pm for 30 minutes. The father shall facilitate further telephone calls up to 7:45 pm in the event the first call is missed by the mother.
e) An order that when the parties engage with the child’s school, the discussions shall be limited to discussions about the child only and not about each other. The father shall not appear at the child’s school other than on his scheduled day and time to exercise weekend parenting visits.
29The father also seeks a mutual travel consent requirement in his draft order. The mother opposes same and wants to preserve the existing travel provisions.
30The court makes the following findings of fact that are relevant to these issues:
a) The child was formally diagnosed with Autism Spectrum Disorder in 2020 at the Holland Bloorview Kids Rehabilitation Hospital.
b) The child has been assisted in the past by the Hospital for Sick Children and the South Asian Autism Awareness Centre.
c) The child is currently enrolled in Grade 2 at Norway Junior Public School. He has an Individualized Education Plan.
d) The child has a primary teacher and a special needs assistant in his school setting. He does not have any programming/therapy outside of the school environment at this time.
e) The mother debriefs with school staff when she picks him up from school and discusses his progress and behaviour that day.
f) The current school setting is positive for the child. Neither parent seeks to change educational setting for him.
g) The father has not been employed since 2013. He reports that he intends to seek full time work. He did not provide any evidence of a job search, a job offer or a start date at the trial.
h) The father has not made any effort to educate himself about Autism Spectrum Disorder in general or the diagnosis as it relates to the child. He has not taken the initiative to contact any Autism Resource Centre in Toronto for information and education. He has not contacted the child’s current school to meet with the child’s teacher to discuss the child’s progress and behaviour.
i) The father admits that he was contacted by the South Asian Autism Awareness Centre in June of 2023 for a meeting about the child. He refused the meeting because it was on short notice. He did not succeed in setting up a meeting with the centre at a more convenient time for him and the child.
j) The father did not provide a plan for the equally shared weeks he ultimately seeks with the child during the summer months. He stated that he was anticipating an imminent return to full time work which would affect his ability to care for the child during the summer months. He did not file an affidavit from his mother/stepfather in Barrie setting out their potential role as summer caregivers. He had not researched summer camps/programming in his area that would be appropriate for his son and affordable for the family.
k) Both parents have used the My Family Wizard communication platform to demean and insult the other parent.
l) The parents agree that the Toronto Marine Unit is an exchange point that is safe and equidistant from their respective homes.
m) The mother took unilateral action that seriously affected the father’s relationship with the child. She suspended his contact with the child for eight months between November 2021 and August 2022. She relocated to Owen Sound without proper notice, father’s consent or a court order. Her actions required the father to seek court orders to restore his contact with the child and the child’s residence in Toronto.
n) At trial the mother admitted that her behaviour in the past with respect to not allowing contact between the child and the father from November 2021 to August 2022 was wrong and that she had learned from the penalties she had faced in court.
o) There is no evidence before the court that the mother has impeded the father’s parenting time since Justice Sherr’s November 2022 temporary parenting time order.
29The child has the benefit of two interested and loving parents. He has the challenge of an Autism diagnosis. The parents in this case have limited financial means and a history of poor communication and cooperation. The mother’s past actions have seriously compromised the trust between the parents.
30The court orders that the father’s alternate weekends with the child will commence at the after school pick up on Friday at 3:00 pm and end with a drop-off at the Toronto Marine Unit on Sunday at 5:00 pm. In the event that the father secures full time employment that conflicts with this schedule, he can provide the mother evidence of his employment and vary the pick-up to the Saturday morning 10 am pick up at the Toronto Marine Unit.
31If there is a statutory holiday on the father’s weekend, his weekend will be extended to include the statutory holiday. If the holiday is a Friday, his pick-up will be at 3:00 pm at school on Thursday. If the holiday is a Monday, his drop-off will be at 6:00 pm at the Toronto Marine Unit on Monday.
32This order is in the best interests of the child for the following reasons:
a) The father’s employment has not yet been secured. If and when secured, it may not be full time or conflict with this pick up. If and when secured, and if it conflicts with the Friday pick-up, the pick-up time can be varied to Saturday at 10:00 am at the Toronto Marine Unit.
b) This order increases the father’s time with the child.
c) The schedule gives the father a weekly opportunity to meet and communicate with the child’s teacher and other professional school supports. This is an excellent opportunity for him to connect with the professionals involved with the child and to keep up to date with respect to the child’s progress week to week and his behaviour that day.
d) The schedule reduces the child’s visits to the police unit from four to twice a month. A school pick up is a preferable environment to a police station exchange.
e) Extending the father’s weekend to include any statutory holiday for the father will reduce the child’s travel time.
33The court will order that the father’s summer schedule will include three weeks as follows; the first week of July, the first week of August and the last week of the summer before Labour Day.
34If the father wants to enroll the child in camp for his week, the father is to provide information regarding to the camp to the mother that confirms that it can accommodate a child with autism and he is responsible for the camp fees.
35The father will also facilitate one virtual visit on Wednesday evening between the mother and child during his summer weeks as set out in the order.
36This order is in the best interests of the child for the following reasons:
a) The father has not provided evidence of a summer plan that would meet the child’s needs for half of the weeks of the summer break. The three non-consecutive weeks provide him time with the child which he should be able to realistically manage.
b) The father and the mother have a poor history of communication. The firm setting of the weeks in the order will minimize the need for communication and negotiation.
c) Finding summer camps/activities for this child will be very challenging in light of his autism diagnosis and the limited financial means of the parents. The setting of the weeks will allow each parent to seek programming (if required) early with the confidence that they are responsible for the week in question.
37The court will vary the travel provisions as follows:
a) The court will order that either party may travel outside of Ontario for vacation purposes with the child with the written consent of the other party. Such consent is not to be unreasonably withheld.
b) The travelling parent shall provide the non-travelling parent with a copy of their itinerary including dates of travel, copies of tickets and contact information at least 10 days prior to the trip via email.
c) If the applicant/mother’s vacation with the child results in the father missing parenting time, he shall be provided with make-up parenting time upon the child’s return.
38This variation is in the best interest of the child for the following reasons:
a) The mother’s unilateral relocation decisions and suspension of the father’s parenting time have eroded the trust between the parents.
b) The mother continues to withhold her current address where she resides with the child.
c) The consent requirement will require notice and transparency with respect to travel that will assist in rebuilding trust and the co-parenting relationship.
Part Five – Conclusion
39There are currently three final orders that govern the parties; Justice Sherr’s child support order dated February 2, 2018; Justice Sherr’s custody and travel/documents order dated July 20, 2018 and Justice Sherr’s parenting time/non-removal order dated May 17, 2019.
40All three final orders will be replaced by one final order which addresses all of the issues on a final basis going forward. It will reflect the parenting orders made following the hearing and incorporate the final orders that have not been varied. It will read as follows:
41Child Support:
a) The respondent/father D.H. shall pay child support to the applicant/mother, N.P., for the child in the amount of $287.00 per month, based on an imputed income of $33,540.00 and the Child Support Guidelines, commencing March 1, 2025.
b) The arrears owing are fixed at $3,461.00 and shall be repaid at the rate of $50.00 per month, commencing March 1, 2025 until paid in full.
c) Commencing in the year 2025, and for as long as child support is payable, the respondent/father shall by June 1 on each year provide the applicant/mother a copy of his income tax returns and notices of assessment and reassessment from the previous year.
d) Unless the support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director, and all amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
e) For as long as child support is to be paid, the payor and recipient, if applicable, must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with section 24.1 of the Child Support Guidelines.
f) The respondent/father shall advise the applicant/mother within 10 days if he becomes employed and disclose details with respect to his employer, hourly wage and work schedule.
Parenting Orders:
g) The applicant/mother shall have primary residence of the child.
h) The applicant/mother shall have sole decision-making responsibility for the child. She shall provide the respondent/father with notice of any major decisions including any relevant professional opinions. She shall provide him with an opportunity to respond with his position through My Family Wizard. In the event of a disagreement between the parties, the applicant/mother shall make the final decision.
i) In the event of an emergency concerning the child, the party with the child shall deal with the emergency and inform the other party immediately of all details by way of telephone and email. If a medical emergency occurs on the respondent/father’s parenting day, the applicant/mother shall inform the respondent/father of the emergency immediately and access shall be cancelled.
j) The applicant/mother may obtain passports, passport renewals and other government documentation for the child without the consent or signature of the respondent/father.
k) The applicant mother shall provide the respondent/father with a photocopy of the child’s health card and his passport in the event of travel.
l) Either party may travel outside of Ontario for vacation purposes with the child with the written consent of the other party. Such consent is not to be unreasonably withheld.
m) The travelling parent shall provide the non-travelling parent with a copy of their itinerary including dates of travel, copies of tickets and contact information at least 10 days prior to the trip via email.
n) If the applicant/mother’s vacation with the child results in the father missing parenting time, he shall be provided with make-up parenting time upon the child’s return to Toronto.
o) The applicant/mother shall provide the respondent/father with any and all updates and information with respect to the child’s appointments with specialists or school staff by way of My Family Wizard.
p) Each parent has the right to consult with and obtain information directly from the child’s teachers, doctors or other professionals, about the health, education and welfare of the child in accordance with s.20(5) of the Children’s Law Reform Act.
Parenting Time:
q) The respondent/father shall have alternate weekends with the child. His weekend will commence at the child’s school on Friday at 3:00 pm and end with a drop-off at the Toronto Marine Unit on Sunday at 5:00 pm.
r) The parties may change the parenting exchange site if they both agree to a new site.
s) In the event that the father secures full time employment that conflicts with this weekend schedule, he shall provide the mother evidence of his employment (as set out in (f) and vary his pick-up to the Saturday morning 10 am pick up at the Toronto Marine Unit.
t) The respondent/father shall be the primary caregiver to the child during his access visits.
u) If the father’s parenting time needs to be cancelled by the applicant/mother she shall provide notice via email to the respondent/father at least 24 hours in advance or as soon as possible thereafter. A make up visit shall be scheduled for the first off-weekend after the cancelled visit for Friday at 3:00 pm school pick up until Saturday at 5:00 pm with drop off at the Toronto Marine Unit.
v) If an access visit is cancelled by the respondent/father, he shall forfeit that access visit unless notice is provided to the applicant/mother of a reasonable emergency that prompted the cancellation.
w) Both parties shall be on time for the parenting exchanges. If either party is running late, advance notice is required by way of email communication.
x) The respondent/father is not to cut the child’s hair and pierce his ears without the applicant/mother’s consent via My Family Wizard and email.
y) All parenting time exchanges shall take place at the Toronto Marine Unit in the event that the child’s school is closed.
z) At the end of the parenting time exchanges, the respondent father shall always leave the premises first.
Holiday Parenting Time:
aa) Commencing in the summer of 2025, the respondent/father shall have three non-consecutive inclusive weeks with the child during his summer holidays. The first week will be the first full week of the child’s summer break at the beginning of July. The second week will be the first full week within the month of August. The third week will be the child’s final week of summer holiday which ends in Labour Day weekend.
bb) If the father wants to enroll the child in camp for one of his weeks, the father is to provide information regarding to the camp to the mother that confirms that it can accommodate a child with autism and he is responsible for the camp fees.
cc) All summer week visits will commence on Saturday at 12:00 pm and finish on Saturday at 6:30 pm. Pick up and drop off to occur at the Toronto Marine Unit.
dd) During each week of summer parenting time, the respondent/father shall facilitate video chat/virtual parenting time between the child and the applicant/mother on Wednesdays from 6:00 to 6:30 pm for 30 minutes.
ee) The child shall spend Mother’s Day from 10:00 am to 7:00 pm with the applicant/mother even if this is not normally the applicant/mother’s time with the child.
ff) The child shall spend Father’s Day from 10:00 am to 7:00 pm even if this is not normally the respondent/father’s time with the child.
gg) The applicant/mother shall have the child from Friday after school until Christmas Day at 1:00 pm on an even year and the respondent/father to have him from Christmas Day at 1:00 pm until New Year’s Eve at 1:00 pm on even years. The respondent/father to have the child from after school until Christmas Day at 1:00 pm on odd years and the applicant/mother to have the child from Christmas Day until New Year’s Eve at 1:00 pm on an odd number of years.
hh) The applicant/mother shall have the child for March Break from Friday after school until Wednesday at noon and the respondent/father shall have the child from Wednesday at noon until Sunday at 8:00 pm.
ii) The respondent/father shall have the child for the P.A. (professional development) days and statutory holiday(s) that fall on his alternate weekends. This will include a change of school pick up on the last school day before a Friday holiday (to Thursday at 3:00 pm) or a drop off on Monday at 5:00 pm at the Toronto Marine Unit. The parties may agree to a different parenting schedule on any of these weekends.
jj) The respondent/father is at liberty to attend any of the child’s extra-curricular activities, parent-teacher meetings and any other major events involving the child. If any of the child’s extra-curricular activities or events occur during the respondent/father’s parenting time, he shall make best efforts to take the child to the activities or events.
Communication
kk) The parties shall use Our Family Wizard to communicate. The parties shall use best efforts to ensure that such communication is mutually respectful and child-focused.
ll) The mother is to provide the father with an up-to-date email address. This email address may be used by the father for substituted service if further court action is required.
mm) Neither party shall speak ill of each other to the child or to third parties.
nn) During the exchange of the child, the parties shall refrain from any name calling, use of profanity, negative or hostile demeanour or disrespectful behaviour.
oo) Both parties shall inform the other of any partners involved with the child. Upon request, the parties shall provide details including the contact number and address through My Family Wizard of their respective partners and such contact information shall be used only for emergency purposes.
42If either party seeks costs, they may serve and file written submissions by March 21, 2025. The other party will then have until March 28, 2025, to respond in writing. The submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. Return date of April 14, 2025 at 9:00 am is vacated.
Released: March 3, 2025
Signed: Justice Szandtner