ONTARIO COURT OF JUSTICE
BETWEEN:
J. T.
Applicant (Moving Party)
— AND —
A. K.
Respondent (Responding Party)
Before Justice Szandtner
Heard on June 17 and 18, 2025
Reasons for Judgment released on July 10, 2025
S. Sanyal....................................................................... counsel for the moving party (applicant)
M. Morningstar................................................ counsel for the responding party (respondent)
SZANDTNER J.:
Part One – Introduction
1This hearing was about the applicant J.T. (the father’s) motion to change the court’s final order of Justice Paulseth on March 1, 2022 (the existing order).
2The existing order governs decision-making and parenting time. It was made at a case conference on consent of the parties. The current parenting orders provide that A.K. (the mother) is to have sole decision-making responsibility for the parties’ child on reasonable consultation with the father, that the father shall have virtual parenting time four times per week and that in-person parenting time will be as agreed by the parties subject to the child’s developmental stage and her views.
3The father brought his first motion to change in January 2023, less than one year after the orders were made. He ultimately withdrew his first motion to change in February 2023.
4The father’s current motion to change was issued on October 24, 2024.
5The motion to change seeks variations to the existing orders as follows:
a) A reduction of the child support payable;
b) A joint decision-making order and terms with respect to third party disclosure;
c) An increase in virtual parenting time to daily scheduled contact;
d) An increase in the father’s in person parenting time to include the following:
i. Up to 15 days per month (father to set dates according to his schedule; mother has 48 hours to respond to his request);
ii. Four weeks during summer holidays;
iii. Father’s day;
iv. 1 week over Christmas break;
v. Alternating March breaks.
6On March 17, 2025, the father withdrew his claim for the reduction of the child support ordered by Justice Sherr on September 2, 2022 sought in his motion to change.
7At the hearing, the father sought the variation in decision-making and the significant expansion of his virtual and in person parenting time.
8The mother seeks to dismiss the father’s motion to change on the grounds that he has not established a material change in circumstances. She seeks an order that mutually limits the parties’ ability to communicate with one another to once per week, except in the event of an emergency. She seeks an order that they communicate exclusively through Our Family Wizard. She is also seeking her costs and an order that the father requires leave of the court before bringing another motion to change.
9The court relied on the trial affidavits filed by the parties in this proceeding. Both parties were represented by counsel. Each party was their sole witness and was subject to cross-examination by opposing counsel.
10The 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 decision-making order is in the child’s best interests?
c) If so, what parenting time order is in the child’s best interests?
Part Two – Background
11The mother is 49 years old. The father is 59 years old.
12The mother is from Trinidad and Tobago. The father lives in the United States. The parties met when the father visited Trinidad and Tobago for work. The parents had a relationship for a few years. They never cohabited or married. The parties have one child together born in 2015 (the child).
13The father currently resides in the state of Georgia in the United States. He has a child from another relationship born in 2016 who also resides in the United States.
14The child has primarily resided with the mother since her birth. The mother initially obtained a court order from Trinidad and Tobago in 2017, which provided her with primary residence, sole custody of the child and parenting time for the father.
15The mother moved to Toronto with the child in August of 2018. The father continued to reside in the United States and visit periodically.
16The parties do not currently have a fixed schedule for the father’s in person parenting time. The father informs the mother when he is visiting Toronto and asks her to arrange for him to have time with the child. He stays approximately one week each visit at a hotel or a short-term apartment rental.
17The father is not seeking any change to this monthly parenting time arrangement and the flexibility it affords him.
The Father’s Position and Evidence:
18The father claims that the mother has neglected their child’s needs and his right to be consulted prior to a major decision since the order was made. This is the basis of the material change that allows the court to vary the existing order.
19The father is seeking joint decision-making responsibility with the mother. His position is that if the parties cannot agree then they will participate in mediation. If mediation fails, they will return to court for assistance.
20The father makes the following claims:
a) The mother refused to take the child to a pediatrician or family doctor for many years.
b) The mother did not take the child to a dentist for five years.
c) The mother failed to address the child’s academic issues by arranging for appropriate tutoring assistance in a timely fashion.
d) The mother failed to respond to an incident at school in which the child was bullied by another child.
e) The mother failed to replace the child’s orthotic insoles.
f) The mother has failed to arrange a child therapist for the child to address her anxiety in a timely fashion. She also chose a therapist outside of Toronto.
g) The mother does not feed the child healthy food.
21The father’s position is that even when the mother does take steps to address the child’s needs, her delay in doing so is problematic and her choices are unsound.
22The father also claims as follows:
a) The mother fails to consult with him about decisions for the child.
b) The mother fails to respond to his efforts to communicate with her to provide his input.
c) The mother failed to ensure that third parties were providing him with information directly.
23The father claims that his diligent efforts to remedy the concerns he identified were not effective as the mother refused his assistance. The father claims that he has always offered to pay for the cost of meeting the child’s needs. (i.e. tutoring, singing classes, painting classes) He claims that the mother routinely denies his offers of financial assistance and deprives the child of these enriching activities.
24The father is also seeking a variation that would result in an expansion of virtual access to the child to include daily contact. He is further seeking a significant expansion of his time with the child to include overnights for the duration of his monthly visits to Toronto and to also include up to four weeks in the summer that could be exercised in the United States or travelling in his care.
The Mother’s Position and Evidence:
25The mother takes the position that there has been no material change in circumstances in the three years since the parenting orders were made. She claims that nothing significant has changed in their child’s life since the existing order was made in 2022.
26The child continues to reside with the mother who cares for her primarily. They live in Toronto. The child is still attending the same school full time. She is still healthy. The child’s views and preferences have not changed. The father continues to reside in the United States. He will not commit to a specified regular parenting schedule.
27The mother claims that the father seeks total control over decision-making for the child, it is “his way or the highway.” She is concerned that if a joint decision-making order is made that decisions for the child will not be made if they cannot agree. She wants to avoid the high cost of mediation and litigation.
28The mother addresses the allegations of medical neglect raised by the father in her evidence as follows:
a) The mother and child arrived in Canada in August of 2018. They were covered by the Ontario Health Insurance Plan (OHIP) in or around August 2022.
b) Prior to OHIP coverage, the child saw health professionals when needed. The mother took her for dental cleanings. Following the commencement of OHIP coverage, the mother relied on walk-in clinics and dental screenings twice per year at school. The child did not have any major health issues during this time.
c) As of August 12, 2024, the mother secured a family doctor for the child. The mother chose the doctor based on a positive meeting and the location. She had to first be added to a waiting list.
d) The child’s dentist is Dr. Massad (as of 2024).
e) The child’s optometrist is Dr. Monica Chu (as of 2024).
f) The child’s potential therapist is Jonathan Paynter.
29The mother claims as follows:
a) Since she secured the family doctor, the father has been aggressive with the clinic staff and has tried to book appointments with the doctor without her knowing.
b) She is concerned that the child may lose access to her doctor due to the father’s behaviour with staff.
30The mother addresses the orthopedic issues raised by the father as follows:
a) The child’s orthopedist is Dr. Chu (as of 2019).
b) The child last saw Dr. Chu February 24, 2024. The doctor confirmed that the child’s prescription had not changed for her insoles. The mother decided to wait before getting a new pair of insoles to see if her benefits would cover the prescription or whether it would be better to wait until a new prescription was needed. She decided to wait until a new prescription was needed.
c) The father then booked an appointment for the child without her knowing, ordered the orthotics and messaged her on Our Faily Wizard requesting reimbursement for 40% of the cost.
31The mother’s evidence with respect to the child’s educational issues is as follows:
a) The child is in grade 4 at a public school in Scarborough. She has been enrolled in the school since 2019.
b) The child started struggling with some subjects in Grade 2. This was following the virtual school period due to COVID.
c) After the child started grade 3, the teacher Ms. Esnard suggested that the child might benefit from at-home learning applications like Brainfuse and Knowledgehook. On March 1, 2024, the mother arranged for the child to have an assessment done at a Kumon Centre.
d) The mother arranged for the child to start in-person math tutoring who she found through Toronto Tutors. She also worked closely with the child on her reading at home.
e) The child’s grades started improving as a result. She received a math medal for the work she completed on Knowledgehook at the end of Grade 3.
f) At the start of grade 4, the child was split into a different class from her best friend. She was upset about this and mentioned that she was not getting along with a classmate. The father followed up with respect to bullying of the child. The principal responded to both parents to clarify that there were no concerns regarding bullying.
g) The child’s first term grade 4 report card shows her lowest grade being a C + in math. The rest of her grades are As and Bs.
h) On February 23, 2025, the mother took the child to a tutoring company called Best Brains Learning Centre for an assessment. She enrolled her in their tutoring program on March 1, 2025.
i) The father initially recommended that the child be enrolled in tutoring at Best Brains. He now insists that she cannot continue working with Best Brains. On April 22, 2025, the father took the child to meet with a new tutor, Ms. Akhtar.
32The mother’s evidence is that she did not unreasonably deny the child singing or art lessons. She explained that she wanted the child to focus on her academic issues that had been identified and the tutoring that had been arranged. Notwithstanding her decision, in January 2024, the father took the child to singing lessons without discussing it with her. In February of 2024, the father took the child to an art class without first consulting the mother and sent multiple emails insisting that she continue taking her.
33Under cross-examination, the mother further explained that she was cautious about committing to extra-curricular expenses that she could not afford on her own and that fit with her schedule. She was concerned about the reliability of the father’s financial support for these types of expenses and finding herself financially overextended.
34The mother’s position is that the in-person parenting time order should not be varied as the father requests. She relies on the following evidence:
a) Since the child was born she has spent approximately eight overnights with the father. The child has struggled with the overnight visits even when her half-brother was part of the visit. The child has had to call for a pick up from the mother during several attempts to sleep over in her father’s care.
b) The child’s anxieties about sleeping over are not specific to her father. She consistently refuses to spend overnights with trusted people in her life including extended family.
35The mother’s position is that the virtual parenting time order should not be varied as the father requests. The child has a life and routine of her own. She is in school full-time and has homework and daily reading. She is also required to do daily math work for her tutoring on Thursdays. She has playdates after school. Anything more than four virtual visits a week with her father is disruptive.
36The mother’s claims with respect to the father’s communication is as follows:
a) The father often messages her several times per day, for days at a time. For example, on February 26, 2024, he sent her 11 text messages. As a result, she blocked him on her phone and insisted on using Our Family Wizard.
b) The father regularly becomes aggressive in his messages. The mother finds the messages stressful.
c) The father uses the messages to attempt to micromanage her parenting and pressure her to comply with his demands.
The Voice of the Child:
37On January 13, 2025, the court requested a Voice of the Child report from the Office of the Children’s Lawyer. Ms. MacInnis was assigned as the clinical investigator. Neither party called Ms. MacInnis for cross-examination at the hearing and her affidavit sworn February 25, 2025 was admitted as evidence.
38The child reported the following:
a) She does not like sleeping over with her father as she is used to being with her mother. She also misses her bed and her toys.
b) She would stay overnight more with her father if her brother (who resides in United States) was also there.
c) She likes her phone/video calls with her father as they are currently scheduled. She does not like when he calls at unscheduled times. She likes it when her brother joins the calls.
d) Her father sends her a lot of messages through Messenger. She would prefer that he message her less, maybe 3 messages a day instead of 6 to 8 messages a day.
e) Her mother encourages her to see her father.
f) She does not want to spend more time with her father and she like the days she has with him. She does not want to spend longer periods with him in the summer, she wants the same schedule as the school year.
g) She likes it when her father visits her in Toronto during the day.
h) As it relates to parenting time, the child does not want any changes made to the parenting schedule, nor does she want to spend any overnight time with her father as she feels uncomfortable with the visits.
i) The child reported that the mother encourages her to see her father.
Part Three – Material Change in Circumstances
3.1 Legal considerations
39Section 29 of the Children's Law Reform Act (CLRA) 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.
40This is a two-step process:
a) The moving party must first meet the threshold requirement of demonstrating that, since the last order was made, there has been a material change in circumstances that affects or is likely to affect the child. The previous order is presumed to be correct. The change must have not been foreseen or reasonably contemplated by the judge who made the original order. The change must be to the condition, needs, means or circumstances of the child and the ability of the parent to meet those needs. If this test is not met, the inquiry goes no further.
b) Secondly, if the threshold is met, the court must embark on a fresh inquiry into the best interests of the child, having regard to all of the circumstances in section 24 of the CLRA. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. The court should consider the matter afresh without defaulting to the existing arrangement.
See: Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, which has been held to apply to section 29 CLRA cases.
41In 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.
42On 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 Decision-Making Variation
Has there been a material change in circumstances to permit a variation in the existing order giving the mother sole decision-making with consultation with the father?
43The father is taking the position that there has been a material change in circumstances since the decision-making order was made. He relies on his claims that the mother has been neglecting the child’s medical, educational and therapeutic needs and that she has been has failed to consult him appropriately. His position is that her poor decision-making and failure to consult is a material change that requires a variation of the existing order from sole to joint-decision making.
44The mother is taking the position that there has been no material change in circumstances that would permit a variation of the sole decision-making order. She relies on her evidence with respect to her appropriate care of the child. She is however, seeking a minor change to the order to address the specific issue of the father’s communication pattern with her which she describes as excessive and stressful.
45The court makes the following findings of fact with respect to whether or not there has been a material change in circumstances connected to the mother’s decision-making that permits a variation with respect to the existing order:
a) The child continues to reside in the primary care of her mother.
b) The father continues to reside in the state of Georgia in the United States. He has no plan to relocate in the same city as the child and the mother or to abide by a specified monthly parenting schedule. He prefers the freedom of the current flexible arrangement.
c) The mother’s care of the child’s medical needs has been appropriate. The child is healthy. No significant health issues have been identified. The child is currently under the care of a doctor, dentist, optometrist and orthopaedist. The mother’s decision not to replace insoles when the prescription had not changed is rational and cost-conscious.
d) The mother’s care of the child’s educational needs has been appropriate. The child returned to school after virtual learning with some academic delays. The mother has been in communication with the teacher about their recommendations and feedback. She has considered different tutoring supports and has connected the child to a range of academic assessments and supports. As a result, there has been some improvement in the child’s performance.
e) The mother’s decisions with respect to other extra-curricular activities has been appropriate. She has chosen to prioritize tutoring over singing or art lessons at this time. She is trying to arrange for counselling for the child.
f) The mother’s caution in committing to expensive extra-curricular costs due to her concern over the reliability of the father’s financial support is rational. She does not want to make a financial commitment that she cannot afford. There is evidence that the father’s financial support is not always reliable. For example, the father unilaterally paid for the child’s insoles and then demanded a 40% contribution from the mother. Moreover, the father was formally seeking a reduction in his child support payable from October 2024 to March 2025 as part of his motion to change.
g) The father’s interpretation of consultation is that he provides his input and the mother abides by his wishes. This is not consultation. The court finds that the father communicated his views to the mother on the major decisions and then she made the final decisions. This was appropriate consultation under the existing order.
46There is no change in the mother’s role as primary caregiver who is best placed to make decisions for the child. She is the parent who has daily contact with the child, her friends, her tutor and teachers. There is no evidence before the court that the mother’s decisions are irrational, harmful or reflect a diminished capacity to make future final parenting decisions for this child. There is no evidence that the father was unaware of the decisions to be made or that he was unable to communicate his views which is the meaning of consultation.
47The threshold test of a material change has not been met on the issue of decision-making.
If the court is mistaken with respect to whether or not the threshold test is met, is a variation of the existing order to a joint decision-making order in this child’s best interests?
48The Ontario Court of Appeal in Kaplanis v. Kaplanis 2005 CanLII 1625 (Ont.C.A.) sets out the following principles to consider in determining whether or joint decision-making responsibility order is appropriate:
There must be evidence of historical communication between the parents and appropriate communication between them.
It can’t be ordered in the hope that it will improve their communication.
Just because both parents are fit does not mean that joint custody should be ordered.
The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
The younger the child, the more important communication is.
49Mutual trust and respect are basic elements for a joint custody order to work effectively. See: G.T.C. v. S.M.G. 2020 ONCJ 511.
50The court makes the following findings of fact with respect to the father’s behaviour since the sole decision-making order was made:
a) The father’s evidence at the hearing reflects that he strongly believes that the mother is a poor decision-maker for the child. He has no respect for her as a decision-maker.
b) The father’s examples of the mother’s alleged poor decisions or neglectful behaviour are not credible or compelling. The court finds that the mother was able to clearly explain her decision-making path and rationale on each of the issues raised. However, the father is unable to consider or accept the valid reasons for the decisions she makes for the child if they do not mirror his own view.
c) The mother reports a constant barrage of messaging from the father. She further reports that his messages pressure her to follow through on his recommendations and decisions.
d) The father’s behaviour under the existing sole decision-making order shows that he will not hesitate to unilaterally intervene in the child’s life in ways that are not appropriate and are confusing to the child and third parties. For example:
i. He contacted principals of two schools to attempt to transfer the child to a new school without the mother’s consent.
ii. He communicated with the child’s principal about alleged bullying without copying the mother on his communication.
iii. He attempted to schedule an appointment with the child’s doctor without the mother’s consent. His contact with the child’s new doctor’s office has been aggressive and may have jeopardized his child’s access to future medical care.
iv. He brought the child to a singing class and to an art class without getting the mother’s approval or input.
v. He brought the child to a tutoring appointment without the mother’s approval or input.
vi. He replaced the child’s insoles without the mother’s approval or input and then demanded 40% repayment.
51The court finds that the father’s pattern of unilateral communications with third party professionals and attending classes and appointments without the mother’s knowledge and consent is problematic. It is not in the child’s best interests as it confuses the third-party professionals involved with the child. It also has the potential to alienate the professionals and make them less likely to assist the family. It is also not in the child’s best interests because it can confuse and mislead her about what activities are available to her.
52The court finds that the father’s pattern of communication and conduct with the mother is controlling and domineering. He vilifies the mother’s rational decision-making because the decisions do not always align with his views and he cannot control her decisions. There is no evidence that he respects her decisions or makes any attempt to understand their basis. This makes the mother’s ability to consult with him extremely challenging.
53The father’s behaviour is not a foundation for a successful joint decision-making regime. A joint decision-making order for these parents would likely result in their total failure to make any timely decisions for this child. This decision-making paralysis would not be in the best interests of this child.
54The father’s position that mediation and litigation would be available to the parties in the event that they cannot agree is not a solution to the anticipated dysfunctional dynamic. The solution is to maintain the existing order which vests sole decision-making with the mother, with consultation with the father.
55In the event that the father’s identified problematic behaviour with third parties and with the mother persist and there is evidence that this is a pattern that is negatively affecting the best interests of the child, the mother may have a basis to bring a future motion to change the decision-making order to remove the consultation provision.
3.3 Parenting Time Variation
Has there been a material change in circumstances to permit a variation in the existing order for parenting time with the father?
56The father is taking the position that there has been a material change in circumstances to justify a variation in the existing flexible order for parenting time with him. He seeks to maintain his monthly flexible schedule, but to enjoy specified inclusive weeks of vacation time with the child and the ability to travel with her outside of Canada.
57The mother opposes any variation of the virtual and in person parenting time with the father and takes the position that there has been no material change in circumstances since the order was made.
58The court makes the following findings of fact related to the parenting time:
a) The child and the mother continue to reside in Toronto. The father resides in Georgia in the United States.
b) The father is not seeking any fixed regular parenting schedule. He wants to preserve the flexibility he enjoys.
c) The father lets the mother know when he plans to visit Toronto each month to see the child.
d) The child has had had approximately eight overnights with the father.
e) The child struggles with overnights with the father and other extended family members at this time.
f) The clinician who conducted the Voice of the Child reports that the child is happy with the current arrangement for virtual and in person parenting time and is not seeking an expansion of either mode of parenting time.
59The court finds that there has been no material change in circumstances to permit a variation of the current parenting time order. The father continues to reside in another country. He will not commit to a specified monthly parenting schedule. The child is not expressing views and preferences that support the significant expansion of time sought by the father. The child is clear that she is more comfortable at this age and stage with day visits with her father. She also does not want any additional virtual contact with him.
If the court is mistaken with respect to whether or not the threshold test is met, is a change to an expanded parenting time schedule in this child’s best interests?
60Subsection 24 (2) of the CLRA 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.
61Subsection 24 (3) of the CLRA sets out a list of factors for the court to consider related to the circumstances of the child. The court has considered the factors as set out.
62In determining the father’s parenting time, the court must consider the relevant best interests considerations contained in subsections 24 (2) to (7) of the CLRA.
63In particular subsection 24 (6) of the CLRA 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.
64The father is seeking a very significant expansion of virtual parenting time with the child from four times a week to daily. He is further seeking a significant expansion of in person time to include up to four inclusive weeks in the summer and full weeks on other holidays. He wants to be able to travel with the child.
65The court makes the findings of fact that are relevant to this issue:
a) The child is nine years of age. She clearly expressed to the clinician that she does not want a change in the parenting schedule. She is happy with the current virtual and in person schedule.
b) The child struggles with overnight visits with the father. Her reluctance to sleep over at other homes is not limited to the father, she finds it anxiety provoking to sleep over with extended family at her age and stage.
c) The parents agree that the child suffers from anxiety.
d) The child’s struggle with overnight visits in Toronto make it unlikely that she would be able successfully emotionally manage entire weeks with the father in environments that are new to her. If she was in another country, her mother would not be able to pick her up if she is in distress as occurs in Toronto.
66The court finds that maintaining the existing order for the father’s parenting time is in the child’s best interests for the following reasons:
a) The order respects the expressed views of the child.
b) The order allows the child to set the pace with respect to gradually increasing her overnights with her father.
c) The order makes it more likely that the parenting time with the father will continue to be successful and enjoyable to the child.
d) The parenting time with the father will not be an additional source of anxiety to this child.
Part Four – Conclusion
67The court orders as follows:
a) The applicant’s motion to change shall be dismissed, and the terms of the order of Justice Paulseth dated March 1, 2022 shall continue.
b) The parties shall communicate with one another exclusively through Our Family Wizard (OFW). If there is an emergency, the parties shall include “EMERGENCY” in the subject of the message or otherwise use the telephone feature through OFW.
c) The applicant shall not be permitted to bring another motion to change without first obtaining leave of the court.
68If the respondent seeks costs of this trial she shall serve and file written submissions by July 25, 2025. The applicant will then have until July 31, 2025 to serve and file his written response (not to make their own costs submissions). The submissions shall not exceed 3 pages, not including any offer to settle or bill or costs. The costs submissions should be delivered to the trial coordinator’s office.
69The return date of September 25, 2025 at 9:00 a.m. is vacated.
Released: July 10, 2025
Signed: Justice Szandtner