ONTARIO COURT OF JUSTICE
BETWEEN:
ROGER AGUILAR
Applicant
— AND —
NICOLE PESANTEZ
Respondent
Before Justice Jennifer S. Daudlin
Heard on March 17, 2026.
Reasons for Judgement released on March 24, 2026
Paul Cooper counsel for the applicant
Jessica Santucci counsel for the respondent
DAUDLIN J.:
Part One – Introduction
1This is a motion brought by the applicant (“the father”) seeking to change a temporary without prejudice parenting order made in the context of an ongoing application. The father asks the court to further expand his parenting time with the child, Valentina (“the child”), and to vary aspects of the existing temporary regime governing exchanges, holidays, and related parenting terms. He brings the motion on the basis that the current arrangement is no longer in the child’s best interests and that immediate interim relief is required.
2The respondent (“the mother”) opposes the relief sought. She submits that the existing temporary order appropriately balances the child’s needs for stability and support in the context of her emotional and developmental challenges, and that the father has not met the stringent threshold required to justify further interim variation. The mother takes the position that the issues raised by the father should be addressed following the involvement of the Office of the Children’s Lawyer and further assessment, rather than through contested interim relief.
3The motion proceeds against a backdrop of significant parental conflict and competing narratives regarding the child’s emotional well‑being, transitions between households, and the impact of parenting time on the child. Both parents acknowledge that the child is struggling and requires support. The central issue before the court on this motion is not whether the child needs assistance, but whether the father has established a sufficient evidentiary basis to warrant a change to the existing temporary order at this stage of the proceedings.
Part Two – Background
2.1 Family Background
4The father is 32 years old. He lives with his parents, and his older daughter from a prior relationship.
5The mother is 33 years old. She lives with her parents and sister.
6The parties had an intermittent relationship between 2012 and 2017, and lived together briefly in 2017. They separated in November 2017.
7The parties are the parents of one child, Valentina (born […], 2016), who is nine years old.
8The child has identified emotional and learning needs and has been diagnosed with anxiety and ADHD. The mother also reports that the child has been diagnosed with dyslexia. The child attends school pursuant to an Individual Education Plan and has been engaged in therapy since November 2025. Both parents acknowledge that the child is experiencing emotional difficulties and that professional supports are required. At the hearing of the motion, the father acknowledged the diagnoses of anxiety and ADHD, but did not expressly acknowledge a diagnosis of dyslexia.
9Since the parties’ separation, the mother has been the child’s primary caregiver, and the child has resided with her.
10For several years following the parties’ separation until January 2025, the father’s involvement consisted of daytime parenting time on alternating weekends, together with mid‑week contact. During this period, the father did not exercise overnight parenting time.
11In September 2020, for reasons that are disputed, the father’s parenting time became less consistent.
12Beginning in or around 2024, the father sought an expansion of his parenting time. Over time, and through a combination of agreements and court orders, his parenting time increased incrementally. This included the re-introduction of scheduled mid‑week parenting time and the gradual re-expansion of weekend parenting time.
2.2 Litigation History
13On October 24, 2024, the father issued an application seeking orders for specified regular and holiday parenting time, consultation on major decisions for the child, and ancillary parenting orders.
14In early January 2025, overnight parenting time was introduced on a temporary and without prejudice basis.
15The mother filed her answer/claim seeking orders for decision-making responsibility, specified parenting time, ancillary parenting orders, and child support inclusive of section 7 expenses. The father opposed the relief sought by the mother.
16On February 19, 2025, on consent, Justice Jones issued a temporary without prejudice order providing the father with alternating weekend parenting time, including one overnight on alternating weekends, together with mid‑week parenting time and scheduled video contact. That order also included detailed terms addressing exchanges, communication, the child’s routine, expectations intended to reduce conflict between the parties, and child support.
17As the father’s parenting time expanded, additional disputes arose regarding scheduling, exchanges, and the management of the child’s belongings and routine between households. Further temporary orders made on consent refined the parenting schedule and imposed additional structure, including provisions governing the timing and location of exchanges, communication protocols, and behavioural expectations during parenting time.1
18On January 6, 2026, this court made a further temporary order on consent (“the current order”) confirming the existing parenting schedule that had been implemented by the parties in September 2025 and addressing issues related to the child’s therapy. That order provided for alternating responsibility for transporting the child to therapy2, ensured both parents had access to information from the child’s service providers, and included additional terms intended to promote consistency and reduce conflict. The order continued to provide the father with alternating weekend parenting time with overnights, mid‑week parenting time, and scheduled video contact.
19On January 6, 2026, the parties agreed to the involvement of the Office of the Children’s Lawyer (the “OCL”), and an order issued requesting its participation. On March 3, 2026, the OCL accepted the file, and a clinician was assigned to conduct an assessment and prepare a report.
20Since the introduction of overnight parenting time, the parties have taken sharply different positions regarding the child’s response to the parenting arrangement. The mother asserts that the child experiences significant distress surrounding transitions and overnight parenting time, while the father disputes that characterization and maintains that his parenting time is positive and appropriate. These disputes have persisted notwithstanding the involvement of the court and the implementation of increasingly detailed temporary orders.
21The parties’ co‑parenting relationship is characterized by significant conflict and allegations of poor communication. Parenting disputes have arisen in relation to transitions between households, scheduling, therapy attendance, holiday parenting time, and the management of the child’s routine and belongings. These disputes have persisted notwithstanding the involvement of the court and the implementation of temporary orders intended to provide structure and reduce conflict.
2.3. Current Order
22At the time of this motion, the father’s parenting time remains governed by the current order.
23Under the current order, the father exercises parenting time with the child on the following basis:
(1) Alternating weekends, from Friday after school (or pick‑up from daycare when school is not in session) through to Sunday evening, with the child returned to the mother’s care at 7:00 p.m., at her residence.
(2) Mid‑week parenting time each Wednesday, with pick‑up from daycare or school and responsibility for transporting the child to her scheduled swimming activity, followed by return to the mother’s care that evening, at the swimming activity.
(3) Therapy‑related parenting time on alternating Mondays, the father is responsible for picking the child up from daycare, feeding her, and transporting her to therapy. The mother picks the child up following the therapy session.
(4) Scheduled video contact weekly with the child on Tuesdays, at a scheduled time.
24The regular parenting schedule currently in place provides the father with more parenting time than he originally sought in his application.3
Part Three – Relief Sought
25The father seeks a further interim without prejudice expansion of his parenting time, including:
(1) Additional overnight parenting time extending into Monday mornings.4
(2) Expanded Monday parenting time to include drop-offs at the mother’s residence following therapy.
(3) Expanded Wednesday parenting time to include overnight until Thursday morning.
(4) Defined parenting arrangements for March Break and the Easter holiday.
26In addition to orders expanding parenting time, the father seeks orders:
(1) Excluding the mother from the child’s therapy during his parenting time.
(2) Permitting each parent up to six days per school year during which they may elect not to send the child to daycare during their parenting time.
(3) Revised provisions governing the location of parenting exchanges, requiring that exchanges occur at the child’s school or daycare when in session unless otherwise agreed (and except following the father’s requested Monday parenting time).
(4) He also seeks non‑disparagement and non‑involvement terms restraining both parents from speaking negatively about the other parent or their family in the presence of the child, and from discussing adult, court‑related, or litigation issues with the child or in her presence.
27The mother opposes those changes and submits that the current temporary parenting regime should remain in place pending the release of the OCL Report.
28Prior to the hearing of the motion, the parties resolved the issue of parenting time for the March Break. The parties also resolved the father’s request for non‑disparagement and non‑involvement terms. As the latter relief sought mirrors the temporary, without‑prejudice order made by Justice Jones on February 19, 2025, those terms shall continue to apply, on a temporary basis.
Part Four – Issues to be Determined
29The remaining issues for determination on this motion are:
(1) What legal test applies on this motion? Specifically,
(a) Whether the temporary, without-prejudice order retains its provisional character, permitting the court to proceed directly to a best‑interests analysis, or
(b) Whether the order has, through the passage of time and the child’s lived experience under it, crystallized into a status quo such that variation requires proof of a material change in circumstances.
(2) If the court finds that the provisional character of the current order is preserved, what variation to the existing parenting schedule and parenting terms is in the best interests of the child.
(3) If the court finds that a status quo has crystallized:
(a) Whether there has been a material change in circumstances since the making of the last order, and,
(b) If so, what variation to the existing parenting schedule and parenting terms is in the best interests of the child.
Part Five – The Applicable Legal Test
5.1 Position of the Parties
30The parties disagree on the applicable legal test. The father submits that the court should proceed directly to a best‑interests analysis, arguing that the existing parenting orders are expressly temporary and without prejudice. He says the orders were made in an evolving and unsettled context, with leave granted to bring a motion and with the court seeking the involvement of the Office of the Children’s Lawyer. In his submission, the orders were not intended to crystallize a parenting status quo, but rather to provide a provisional framework pending further evidence. On that basis, he argues that the court is not constrained by a material‑change threshold and should determine the parenting arrangement that best meets the child’s current needs.
31The mother takes a different position. She submits that, notwithstanding the without‑prejudice language, the existing parenting arrangement has crystallized into a status quo through the passage of time and the child’s lived experience under it. She emphasizes that the current order formalized a schedule that had already been in place since September, that the child has been living within that structure on a consistent basis, and that stability is particularly important given the child’s emotional vulnerability and the ongoing involvement of professional supports. The mother argues that, in these circumstances, the court must first determine whether there has been a material change in circumstances sufficient to justify disturbing the settled arrangement before considering any variation.
32In the alternative, the father submits that even if the material‑change framework applies, the threshold has been met. He argues that the last order was expressly made without prejudice and was intended as a holding order pending the hearing of his motion, rather than as an arrangement meant to crystallize a parenting status quo. He further submits that there has been a material change in circumstances since the February 2025 order, and in particular since the change to the parenting arrangement implemented in September 2025. The father points to escalating conflict at exchanges and the impact of that conflict on the child as developments that he says were not anticipated at the time of the earlier orders and that now justify revisiting the parenting schedule.
5.2 Legal Considerations
33Section 29 of the Children’s Law Reform Act (the Act) governs the variation of parenting orders and provides that
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.
34The material‑change requirement performs an important gatekeeping function, protecting children from instability and repeated litigation once a settled parenting arrangement has been established.
35At the same time, Ontario courts have recognized that the material‑change threshold does not automatically apply to every motion involving a temporary, without‑prejudice parenting order. As a general rule, no material change in circumstances is required to vary a genuinely temporary, time‑limited, or without‑prejudice order that retains its provisional character.5 In such cases, the court is not being asked to disturb an established parenting regime, but to determine what arrangement is in the child’s best interests on a temporary basis, following the analysis under section 24 of the Act.
36However, the jurisprudence is equally clear that the label “temporary, without prejudice” is not determinative.
37In Churchill v. Elliot and Ward6, the court emphasized that where successive interim or consent orders are repeatedly characterized as without prejudice, the cumulative effect and duration of those orders may erode the practical significance of that designation.7 The focus must shift from the language of the order to the child’s lived experience under it.
38In Rafla v. Fawaz8, the court cautioned that allowing parents an unfettered ability to repeatedly seek changes to parenting arrangements without demonstrating a material change in circumstances is inconsistent with children’s need for stability and predictability. At a certain point, continued reliance on the without‑prejudice characterization becomes counter‑productive, undermining the very interests interim orders are meant to protect.
39Read together, these authorities establish that the court must assess whether a temporary, without‑prejudice parenting order has retained its provisional character or has hardened into a de facto status quo. That determination is a fact‑specific inquiry informed by considerations including the passage of time, the nature of the arrangement, whether it confirmed an existing schedule or introduced a new one, and the child’s day‑to‑day experience under the order.
40In determining whether a temporary, without‑prejudice parenting order has crystallized into a status quo such that variation requires proof of a material change in circumstances, the court considers:
(1) Whether the order, or the parenting arrangement it confirmed, has been in place for a meaningful period and is no longer truly short‑term or transitional.
(2) Whether the child has experienced the arrangement as their settled, day‑to‑day reality, such that it has become familiar, routine, and stabilizing rather than provisional.
(3) Whether the nature, purpose, and context of the order indicate that it functioned to provide structure and continuity, as opposed to merely preserving flexibility pending imminent litigation, assessment, or crisis resolution; and
(4) Whether treating the order as endlessly provisional would undermine the child’s need for stability and predictability, and permit repeated litigation inconsistent with the gatekeeping function of s. 29 of the Act.
41Where a temporary order retains its provisional character, the court may proceed directly to a s. 24 best‑interests analysis without requiring proof of a material change. By contrast, where the order has, through time and the child’s lived reality, crystallized into a settled parenting arrangement, the court must approach any proposed change through the material‑change framework under s. 29 of the Act, followed by a best‑interests analysis.
42This approach is consistent with the broader shelf‑life principles articulated by Justice Weagant in Children’s Aid Society of Toronto v. N.K. 9 Although arising in the child‑protection context, his reasoning reinforces that without‑prejudice orders do not bind the court indefinitely, that passage of time matters, and that courts must be attentive to the child’s present circumstances rather than treating interim arrangements as permanently provisional.
43Properly applied, this framework balances flexibility and stability. It ensures that temporary orders do not ossify by default, while also safeguarding children from repeated disruption once their lived reality has become established.
5.3 Analysis and Conclusion
44Applying the foregoing principles, the court finds that the temporary, without‑prejudice parenting order in this case has crystallized into a status quo and no longer retains a purely provisional character, for the following reasons:
(1) The order did not create a new or experimental arrangement. It formalized and confirmed a parenting schedule that had already been operating since September 2025 and which the child had been experiencing consistently prior to the order issuing. By the time of the motion, that arrangement had been in place for several months and had become the operative parenting regime governing the child’s day‑to‑day life, rather than a short‑term or transitional measure.
(2) The context in which the order was made reinforces this conclusion. While leave was granted to bring a motion to change, the court simultaneously put in place a structured parenting framework and requested the involvement of the OCL. Those steps reflect an intention to anchor stability pending the benefit of independent, child‑focused input, rather than to preserve unlimited flexibility or invite repeated interim litigation. The subsequent acceptance of the file by the OCL underscores that the issues before the court warranted careful assessment rather than ongoing adjustment of the parenting arrangement.
(3) Treating the order as endlessly provisional would undermine the child’s need for stability and predictability and would permit repeated attempts to re‑litigate parenting time without the discipline imposed by s. 29 of the Act, contrary to the guidance in Churchill and Rafla.
45The court has also considered the father’s submission that he is pursuing a shared parenting arrangement. That characterization does not appear in the relief pled in the application, and submissions cannot expand the scope of the application or alter the governing analytical framework. In any event, regardless of how the proposed outcome is described, the father seeks to disturb an established parenting regime.
46Having regard to the duration and nature of the arrangement, the child’s lived experience under it, the context in which the order was made, and the court‑ordered involvement of the OCL, the court finds that the shelf life of the temporary, without‑prejudice order has expired, and proceeds to the material change analysis.
Part Six – Material Change Analysis
6.1 Legal Considerations
47Section 29 of the Children’s Law Reform Act (the Act) provides the statutory authority for varying a custody or access order. It states:
48The Supreme Court of Canada decision in Gordon v. Goertz10 sets out a two‑stage process for motions to change custody or access:
(1) First, the parent applying for a change must meet the threshold requirement of demonstrating a material change in circumstances affecting the child.
(2) If the threshold is met, the court must then embark on a fresh inquiry into the best interests of the child applying the factors set out in section 24 of the Act and having regard to all relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.
49In L.M.L.P. v. L.S.11, the Supreme Court of Canada held that a material change must be substantial and continuing, and one that, if known at the time the order was made, would likely have resulted in a different order. The court must limit any variation to what is justified by the material change in circumstances.
50The change must have arisen since the making of the order or the last variation of the order.12
51A change alone is insufficient to justify a variation. The change must materially affect the child, the parents, or both.13 The threshold material‑change test is aimed, in part, at ensuring that parties do not resort to litigation whenever any change occurs, however minimal.14
52The test may also be satisfied where the terms of the existing order, or the reasons in support of it, specifically contemplated future changes upon the occurrence of certain events, and those developments have in fact transpired. This may occur, for example, where parenting terms were expressly contemplated to evolve as a child matured.15
53On a motion to change, the court has discretion to restrict any variation to a specific issue, while otherwise maintaining the integrity of the existing order.16
54The rationale for the two‑stage test is well established. Few parties have the resources to continually litigate parenting issues, and there are significant benefits to children and parents in the stability and predictability of finalized orders. If variation becomes the rule rather than the exception, the best interests of children will generally not be served.
55Worsening parental conflict may constitute a material change in circumstances where it affects the best interests of the child.17
56Similarly, where one parent fails to facilitate or undermines the child’s relationship with the other parent — contrary to the expectations that existed when the order was made — that conduct may also constitute a material change in circumstances.18
57Variation of parenting orders, including temporary orders, is also governed by s. 29 of the Act. The legislative language is mandatory. Section 29 does not state that a court may vary an order if there has been a material change in circumstances; it states that a court shall not vary an order unless there has been a material change. This distinction is significant. A change in circumstances alone is insufficient — the change must be material, meaning substantially important.19
58A court may be more willing to vary a temporary order where a trial date is not imminent, and the best interests of the child justify doing so.20
6.2 Has there been a material change in circumstances?
59Applying the material‑change framework to the evidence before the court, the father has not met the threshold, even on the less stringent21 test applicable to a motion to change a temporary order.
60The father’s primary submission is that parenting exchanges have become conflictual and that this conflict now materially affects the child. He relies in particular on an incident that resulted in police involvement and submits that this reflects a deterioration in circumstances since the initial parenting order in February 2025 and since the parenting schedule was adjusted in September 2025.
61The mother disputes this characterization. She acknowledges the police incident, but says it did not occur during a parenting exchange, and she denies that there are ongoing issues at exchanges themselves. She emphasizes that the current parenting schedule already minimizes direct parental interaction and that there is no pattern of conflict at routine exchanges.
62On the evidence before the court, the court accepts the mother’s position on this point. The police involvement relied upon by the father did not arise during a parenting exchange. It occurred after the child had already been returned to the mother’s care and arose out of a dispute regarding the return of the child’s belongings. While the mother’s decision to contact police in those circumstances may, at a minimum, demonstrate a lack of insight and certainly did not reduce conflict, it does not establish that parenting exchanges themselves have become conflictual or that the existing exchange framework is unworkable.
63More importantly, the evidence does not support the father’s broader assertion that exchanges are routinely conflictual. Under the current schedule, only one exchange every two weeks occurs in person, namely the Sunday evening return at the mother’s residence. The mother’s uncontradicted evidence is that these exchanges are brief, involve minimal interaction, and typically consist of the father assisting the child out of the vehicle while the mother waits at the driveway. The parties rarely speak during these exchanges.
64All other exchanges occur at neutral, third‑party locations connected to the child’s routine, including the child’s school or daycare when in session, the child’s therapy appointment, and the child’s swimming lesson. There is no persuasive evidence that these exchanges are conflictual or that the child is exposed to parental conflict at those transition points.
65The court also considers whether the father’s proposed variation would meaningfully change the exchange dynamic said to give rise to the alleged material change. It would not. Under the father’s proposed schedule, the child would still be returned directly to the mother on Monday evenings following therapy. In other words, the proposed schedule does not eliminate direct exchanges outside of school‑based transitions, nor does it materially reduce the opportunities for parental interaction that already exist. The father’s proposal therefore does not address the problem he identifies in any meaningful way.
66In these circumstances, the court is not satisfied that there has been a substantial, continuing, and child‑focused change in circumstances since January or since the September adjustment to the parenting schedule. The evidence establishes that the existing exchange structure was designed to limit conflict, that it largely does so, and that the incident relied upon by the father does not reflect a change in the nature of parenting exchanges themselves.
67Even applying the less stringent test applicable to a temporary order, the court finds that the circumstances relied upon by the father do not rise above ongoing parental tension of the kind that was known, contemplated, and addressed when the current order was made. They do not materially alter the child’s circumstances so as to justify disturbing the existing parenting arrangement.
6.3 Best interests of the child
68Even if the temporary order did not require proof of a material change in circumstances, the court does not find that the variation sought by the father is in the best interests of the child, for the following reasons.
69The father submits that the court should be guided by the AFCC‑O Parenting Plan Guidelines (the AFCC-O Guidelines) and the generally accepted social science reflected in them. He emphasizes the guidance encouraging the use of neutral locations for parenting exchanges and the importance of minimizing children’s exposure to parental conflict. He argues that his proposed schedule is more consistent with those principles and would better serve the child’s best interests.
70The court accepts that the AFCC‑O Guidelines reflect valuable and widely accepted social science. As noted by the Divisional Court in Tremblay‑Chartier v. Blanchette22, while the AFCC‑O Guidelines are not binding law, Ontario courts have accepted the social science underlying them when making parenting orders in the best interests of children.23 The Divisional Court further held that where a judge departs from established and widely accepted social science reflected in the AFCC‑O Guidelines, reasons are required. In Tremblay‑Chartier, the motions judge ordered equal parenting time for a 15‑month‑old child without explaining why that departure from the AFCC‑O Guidelines was in the child’s best interests, and the decision was overturned.
71At the same time, the court is mindful of the subsequent analysis in Gjorsovski v. Krajisnik24, which questioned whether Tremblay‑Chartier stands for a binding requirement that courts must always provide reasons whenever they do not follow the AFCC‑O Guidelines. The court in Gjorsovski emphasized that Tremblay‑Chartier turned on the insufficiency of reasons and the failure to engage in a proper best‑interests analysis, rather than on the mandatory application of the AFCC‑O Guidelines. It also identified several reasons why the AFCC‑O Guidelines should not be treated as determinative, including that it is not listed in the legislation, expressly acknowledges that it does not apply to every case, and is intended to assist parents and professionals rather than bind courts.
72In this case, the court’s departure from certain aspects of the AFCC‑O Guidelines is limited and fact‑specific. The court is not rejecting the social‑science principles underlying the AFCC‑O Guidelines. Rather, the court declines to apply generalized guidance mechanically regarding the restructuring of parenting exchanges and interim expansion of parenting time where the evidence establishes that exchanges are already largely occurring at neutral locations, the proposed variation would not meaningfully reduce parental interaction or conflict, and the child’s identified emotional and learning needs place her within the category of children for whom the AFCC‑O Guidelines themselves caution against increased transitions and interim expansion absent individualized assessment, particularly where such an assessment process has been ordered and is underway.
73Against that legal backdrop, the court has considered the AFCC‑O Guidelines carefully in this case and explains both why it is not following them in all respects and why the father has not demonstrated that his proposed variation is in the child’s best interests on the facts before the court.
74First, the AFCC‑O Guidelines themselves emphasize that parenting arrangements must be individualized, and they expressly caution that general developmental guidance may require modification where a child has special needs. The AFCC‑O Guidelines recognize that some children with anxiety, neurodevelopmental differences, or learning disabilities may have greater difficulty with transitions, require heightened predictability, and may not tolerate expanded schedules or additional change in the same way as other children. This child is nine years old and has identified emotional and learning needs, including anxiety and ADHD, with dyslexia also reported. She is engaged in ongoing therapy. On its own terms, the AFCC‑O Guidelines do not support applying generalized exchange or scheduling recommendations without careful attention to this child’s particular vulnerabilities.
75Second, and critically, the father has not established on the evidence that the change he seeks would actually improve this child’s circumstances. His proposal is premised on the assertion that conflict at exchanges is a significant driver of the child’s distress and that restructuring exchanges will meaningfully reduce that conflict. The evidence does not support that premise.
76The court has already found that the incident relied upon by the father did not occur during a parenting exchange. More broadly, the evidence establishes that the current parenting regime already largely utilizes neutral, third‑party exchange locations tied to the child’s routine, including school, therapy, and extracurricular activities. Only one exchange every two weeks occurs in person at the mother’s residence, and that exchange is brief and involves minimal interaction between the parties. There is no persuasive evidence that the child is routinely exposed to parental conflict at exchanges under the existing order.
77Moreover, the father’s proposed schedule does not materially change the exchange landscape in the way he suggests. Under his proposal, the child would still be returned directly to the mother following therapy on Monday evenings. In practical terms, the proposed variation does not eliminate direct exchanges or meaningfully reduce opportunities for parental interaction beyond what already exists.
78Third, the court places significant weight on the fact that the parties consented to the involvement of the OCL, and that the court ordered that involvement precisely because this case requires a bespoke, child‑specific assessment. The purpose of that process is to obtain independent, individualized recommendations that take into account this child’s emotional functioning, lived experience, and views and preferences. Where such a process is underway, the court is not persuaded that it is in the child’s best interests to make further substantive interim changes based on generalized guidance, rather than awaiting child‑specific professional input.
79The court does not defer its decision‑making responsibility to the OCL, but considers the existence of an ongoing assessment as one contextual factor in determining whether further interim change is presently in the child’s best interests.
80Finally, the court is not satisfied that the timing of the father’s request serves the child’s best interests. The evidence establishes that the child is already struggling emotionally and is engaged in therapeutic support. Stability and predictability are particularly important for this child at this stage. Introducing further interim change before the completion of the OCL process risks compounding the child’s distress without a sufficient evidentiary basis to conclude that the proposed change would alleviate it.
81The court notes that, in important respects, its approach is consistent with the AFCC‑O Guidelines. The AFCC‑O Guidelines recognize that for a child of this age who has not previously lived under a shared parenting schedule, and who is struggling emotionally, a cautious, stability‑focused approach may be appropriate. In that respect, maintaining the existing framework pending child‑specific assessment aligns with the child‑centred principles reflected in the AFCC‑O Guidelines.
82For all of these reasons, even proceeding directly to a best‑interests analysis, the court is not satisfied that the father has demonstrated that the variation he seeks is in the child’s best interests at this time.
Part Seven – Orders and Costs
83For the reasons outlined above, the following orders shall issue:
(1) On consent, paragraphs 16 and 17 of the temporary without prejudice order of Jones J., dated February 19, 2025, shall continue as temporary orders.
(2) The balance of the father’s motion is dismissed.
(3) The scheduled court date on March 25, 2026, is vacated.
84The court strongly encourages the parties to make every reasonable effort to resolve the issue of costs by agreement. If the parties are unable to do so, and the mother seeks costs, she shall serve and file written costs submissions within 14 days of the date of this order. Responding costs submissions shall be served and filed within 7 days thereafter. Submissions shall be no longer than three pages, double‑spaced. Any reference to case law shall be provided by hyperlink only within the submissions. The mother shall attach any relevant offers to settle and a bill of costs, and the father may do the same. No reply submissions shall be permitted unless directed by the court.
85The court expresses its appreciation to counsel for their professionalism throughout the motion.
Released: March 24, 2026
Signed: Justice Jennifer S. Daudlin
Footnotes
- This court’s order of July 17, 2025, respecting travel, make-up parenting time, and videocalls.
- Orders addressing transporting the child to therapy were made without the consent of the parties.
- The father has not sought to amend his application.
- Expanded if the father’s parenting time falls on a holiday, a PD day, etc.,
- Kirichenko v. Kirichenko, 2021 ONSC 2833; Churchill v. Elliot and Ward, 2024 ONSC 1907.
- 2024 ONSC 1907.
- See also: Petheram v. Petheram, 2026 ONSC 1763, at para. 33.
- 2022 ONSC 4512 (SCJ).
- 2008 O.J. 340.
- (1996) 1996 191 (SCC), 19 R.F.L. (4th) 177 (S.C.C.).
- [2011] SCC 64.
- N.S. v. A.N.S., 2021 ONSC 5283; K.M. v. J.R., 2021 ONSC 111.
- K.M. v. J.R., 2021 ONSC 111.
- M.A.B. v. M.G.C., 2022 ONSC 7207.
- M.A.B. v. M.G.C., 2022 ONSC 7207.
- Elaziz v. Wahba, [2017] ONCA 58.
- Wreggitt v. Belanger, 2001 20827 (ONCA); Hackett v. Sever, 2017 ONCJ 193; K.M. v. R.J., 2022 ONSC 111.
- Leggatt v. Leggatt, 2015 ONSC 4502 (SCJ); H. (P.) v. J. (T.), 2017 ONCJ 166 (OCJ).
- McIsaac v. Pye, 2011 ONCJ 840.
- Closner v. Closner, 2019 ONSC 703 (Div. Ct.).
- Radojevic v. Radojevic, 2020 ONSC 5868.
- 2025 ONSC 6273 (Div. Ct.).
- Hatab v. Abuhatab, 2022 ONSC 1560, at para. 61.
- 2025 ONSC 7220.