Kale v. Santiago, 2026 ONCJ 4

CITATION: Kale v. Santiago, 2026 ONCJ 4

DATE: January 5, 2026

COURT FILE NO. DR30892/19

and –

HEARD: JANUARY 2, 2026

Part One – Introduction

1The parties both brought motions to change the parenting terms contained in the court’s order dated October 11, 2024 (the existing order) regarding their two children, ages 9 and 7 (the children).

2On October 3, 2025, on consent, the court made final orders changing parenting time and communication terms in the existing order.

3The remaining issues for this trial are about decision-making responsibility and the incidents of decision-making responsibility regarding the children. The existing order sets out that the parties have joint decision-making responsibility for the children and the father has specified rights to information about them. The mother seeks to change those terms. She seeks sole decision-making responsibility for the children. The father seeks to maintain the decision-making terms in the existing order and asks that a parenting coordinator be appointed if the parties cannot reach an agreement regarding any major issue about the children.

4The court held a focused hearing. It relied on the affidavits filed by the parties. The parties were permitted to provide additional oral evidence and cross-examined each other at the hearing. No one else testified.

5The father resides in the State of Pennsylvania, in the United States. He was permitted to participate in this hearing remotely. The mother attended court in person.

6The issues for the court to determine are:

a) Has there been a material change in circumstances affecting or likely to affect the children’s best interests regarding decision-making responsibility for them?

b) If so, what decision-making responsibility orders are in the children’s best interests?

Part Two – Brief background facts

7The mother is 34 years old. The father is 44 years old.

8The parties married on March 1, 2015, and separated in August 2022.

9The parties had the two children together.

10The children have lived with the mother in Toronto since the parties separated.

11The father has eight other children.

12The father cannot enter Canada due to his criminal record. His last criminal conviction was in 2006. He has participated virtually in all proceedings in this court.

13The mother issued an application in this court for parenting orders on May 1, 2024.¹ The mother was represented by counsel during that proceeding. The father was self-represented.

14On October 11, 2024, the parties consented to the existing order. It sets out a parenting time schedule for the father. It included the following terms about decision-making responsibility:

a) The parties shall have joint decision-making for the children. They shall consult with third-party professionals, if any, involved with the children before making any decisions. If the parties cannot agree they shall follow the advice of the third-party professionals. If there is no third-party professional the mother shall have final decision-making authority for the children.

b) The parties shall share all information related to the children’s health, education, religion and welfare. Both parties may make inquiries and be given information by the children’s doctors, dentists, health-care providers, teachers, school officials, counselors or others involved with the children. Both parties shall be able to attend health-related appointments, extracurricular activities, religious and school events.

15On February 20, 2025, the father filed a motion to enforce the existing order. On March 17, 2025, the court found the mother had breached that order. She was not consistently facilitating the father’s virtual parenting time with the children, and she had failed to provide him with information regarding the children’s school. The court adjourned the father’s enforcement motion to monitor the mother’s compliance with the existing order.

16The father issued a motion to change the existing order on May 6, 2025. The mother issued her response to motion to change on May 15, 2025.

17On May 16, 2025, the court endorsed that the mother was now compliant with the existing order. The parties agreed to communicate through the My Family Wizard App. The enforcement motion was concluded without any further orders.

18On June 23, 2025, on consent, the court made a temporary order specifying the father’s summer parenting time, permitted the mother to travel with the children to Dubai during the summer and ordered a Voice of the Child Report to be completed by the Office of the Children’s Lawyer.

19The mother did not cooperate with the Office of the Children’s Lawyer, and the Voice of the Child Report was not completed.

20The father then brought a series of over-the-counter motions. The court dismissed his first motion on July 28, 2025. Justice Danielle Szandtner dismissed his second motion on August 13, 2025. Justice Debra Paulseth dismissed his third motion on August 18, 2025, and prohibited any further Form 14B motions being brought until the next court date.

21The father then brought a fourth motion returnable for the next court date scheduled for October 3, 2025.

22The parties resolved the issues regarding the father’s parenting time and communication between them on a final basis on October 3, 2025. They also agreed to the format of this focused hearing.

Part Three – Material change in circumstances

3.1 Legal considerations

23Section 29 of the Children’s Law Reform Act (the Act) provides the statutory authority for changing a parenting or contact order. Subsection 29 (1) of the Act reads as follows:

A court shall not make an order under this Part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order.

24The Supreme Court of Canada decision in Gordon v. Goertz (1996) 1996 191 (SCC), 19 R.F.L. (4th) 177 S.C.C. sets out a two-stage process for the court to conduct in motions to change custody or access as follows:

a) First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

b) If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

25In L.M.L.P. v. L.S., [2011] SCC 64, the Supreme Court of Canada 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.

26The change must have arisen since the making of the order or the last variation of the order. See: N.S. v. A.N.S., 2021 ONSC 5283; K.M. v. J.R., 2021 ONSC 111.

27A change alone is not enough to justify a variation. The change must materially affect the child, the parents, or both. See: K.M. v. J.R., 2021 ONSC 111. The threshold material change in circumstances test is aimed in part at ensuring that the parties do not resort to litigation whenever any change occurs, however minimal. See: M.A.B. v. M.G.C., 2022 ONSC 7207.

28On 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.

29Worsening conflict can constitute a material change in circumstances affecting the best interests of the child. See: Wreggitt v. Belanger, 2001 20827 (ONCA); Hackett v. Sever, 2017 ONCJ 193; K.M. v. R.J., 2022 ONSC 111; Brethour v. Anderson, 2022 ONSC 4341; C.L. v. P.S, 2025 ONCJ 100.

3.2 The mother’s position

30The mother’s position is that with respect to decision-making responsibility, there has been a material change in circumstances that has affected or is likely to affect the children’s best interests. She asserts that the conflict between the parties, mostly attributable to the father, has worsened, and they are no longer able to effectively make decisions about the children together. She claims that the father has placed the children in the middle of this conflict and this has seriously distressed them.

3.3 The father’s position

31The father’s position is that with respect to decision-making responsibility, there has not been a material change in circumstances that has affected or is likely to affect the children’s best interests. He seeks the dismissal of the mother’s response to motion to change.

32The father submitted that:

a) The only major decision made by the parties since the existing order was made was whether the children should attend an after-school Islamic program. The parties agreed to this.

b) He has not obstructed any decisions made by the mother regarding the children.

c) He feels the parties’ communication has been very good for the past two months.

d) He misunderstood the scope of joint decision-making responsibility when he sought court intervention to require the mother to give the children a cellphone and a debit card. He now understands the scope of joint decision-making responsibility.

e) Contrary to the mother’s allegation, he has communicated respectfully with the children’s school.

f) The mother has breached court orders – not him. She cannot rely on her own breaches to support a claim of worsening conflict.

g) The children have not been exposed to or affected by adult disagreements regarding decision-making responsibility for them.

3.4 Analysis

33The case law has set out that mutual trust and respect are basic elements for a joint decision-making responsibility order to work effectively. See: G.T.C. v. S.M.G., 2020 ONCJ 511; T.P. v. A.E., 2021 ONSC 6022; Shokoufimogiman v. Bozorgi, 2022 ONSC 5057; Jacobs and Coulombe v. Blair and Amyotte, 2022 ONSC 3159; El Khatib v. Noun, 2023 ONSC 1667.

34The parties’ allegations against each other inform the court that there has been a complete breakdown in their trust and respect for one another since the existing order was made.

35The father’s allegations against the mother include:

a) He deposed that joint decision-making responsibility is required because the mother makes poor decisions. He feels a joint decision-making responsibility order is required for the children’s safety and to provide guardrails.

b) He alleged that the mother neglected the children’s education.

c) He sought an order in his motion to change that the mother undergo an assessment by a qualified mental health professional. He reiterated that request in a motion dated August 17, 2025. There was no evidence that the mother has a mental health problem. In his motions dated August 13, 2025 and August 18, 2025, he also asked for a transfer of the children to his primary care. He sought this relief even though he had only seen the children for one period overnight since the parties separated in 2022.

d) He sought an order in his motion to change that the mother undergo regular drug testing. There was no evidence that the mother has a drug issue.

e) He sought an order in his motion to change that any romantic partner of the mother undergo a criminal background check.

f) In his motion to change, he described the mother as erratic and emotionally volatile. He claimed she obstructs joint decision-making.

g) He deposed that the mother had inappropriately exposed the children to family violence in her home. The children, he said, are distressed about this. He feels the mother has not handled this major issue responsibly.

36The mother’s allegations against the father include:

a) Everything he says is a lie.

b) He continually belittles her and is emotionally abusive to her. This has become worse since the existing order was made.

c) He is relentless in his communications and criticism of her. This has become worse since the existing order was made.²

d) He embarrassed her by directly dealing with the children’s public school without her consent about religious accommodation for the children. She felt he dealt with the school in an aggressive manner. He sent them court documents and insisted on his perceived legal rights.

e) He unilaterally makes decisions without consulting her.

f) He over-litigates to intimidate her and to wear her down.

g) He is controlling, combative, and manipulative.

h) He inappropriately involves the children in adult matters causing them considerable distress.

i) He writes directly to her father when they have parenting disputes.

j) He has neglected his financial responsibilities for the children. He refused to pay for Kumon lessons when they had reading difficulties. He refused to contribute to extracurricular activities for them. Instead, he is only focused on their Islamic studies.

37The court reviewed the multiple text messages filed by the parties and carefully observed their interaction at the hearing. This informed the court that the communication level between the parties is very poor. They have a dysfunctional relationship. They interpret the actions and the intentions of the other in the worst possible way.

38The parties are at the point where all the father’s interactions with the children are recorded so the parties can protect themselves from what they perceive as false allegations from the other.

39The court agrees with the father that if the mother had been mainly responsible for the deterioration in their communication that this would not be a material change in circumstances warranting a change to the existing order. You cannot rely on your own misconduct to claim material change. However, that is not the case here.

40The court finds that both parties have contributed to the deterioration in their ability to communicate effectively about the children since the existing order was made.

41The mother has contributed to this deterioration as follows:

a) Not keeping the father updated about the children’s schooling earlier in 2025.

b) Not consistently facilitating his virtual parenting time earlier in 2025.³

c) Not complying with the court order for the father’s summer parenting time in 2025.⁴ The parties have agreed to make up the father’s parenting time in the summer of 2026.

d) Not cooperating with the completion of the Voice of the Child Report. Parties are expected to follow court orders. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201.

42The mother’s mistrust of the father and her actions must be looked at in context. She described a turbulent relationship with him. She alleged family violence. The father denied this. She also testified that he married another woman while he was still married to her. The father conceded that this was true. She is easily triggered emotionally when dealing with him.

43The father is also responsible for the deterioration in communication with the mother since the existing order was made as follows:

a) He unilaterally wrote to the children’s public school seeking religious accommodation for them without first telling the mother he was going to do this.

b) He sent emails to the children’s public school enclosing court documents without advising the mother he was going to do this.

c) He unilaterally sent the mother a credit card in her name to use to facilitate parenting exchanges. She told him she did not want this.

d) He insisted on giving the children a debit card and cellphone. When the mother refused, he threatened her with court proceedings. The father acknowledged he misunderstood the scope of joint decision-making responsibility and assured the court he would not bring motions about day-to-day parenting decisions in the future.

e) While he perceives his correspondence with the mother as respectful, it often is insistent, lecturing, critical of her and focused on his rights. Sometimes he gave her short deadlines for responses and threatened her with litigation if his demands were not met.

In J.A. v. S.M., 2025 ONCJ 606, Justice Jennifer Daudlin set out the following factors militating against making a joint decision-making responsibility order – many of which are applicable here:

i) Using an accusatory and confrontational tone rather than a problem-solving one.

ii) Focusing on blame, fault, and past grievances instead of the child’s current needs.

iii) Demanding immediate responses.

iv) Creating unilateral deadlines.

v) Issuing directives to the other parent.

vi) Threatening litigation and consequences instead of practical solutions.

f) He over-litigated this case resulting in Justice Paulseth making an order that no further Form 14B motions could be brought.

g) The mother’s evidence that the father had, at times, inappropriately involved the children in adult matters was credible. She asked the father at trial whether he had read any of their emails or court documents to the children. He became evasive, claiming that she had to refer to a specific email. When asked if he had read one of their emails or any court document to the children in the past two weeks, he again claimed this was too vague a question. The court finds it is likely he has read the parties’ emails and court documents to the children. This is inappropriate as it inserts the children into the adult conflict

h) The father’s requests for the mother to undergo a mental health assessment, regular drug testing and to obtain criminal record checks for any romantic partners were overly intrusive, without justification, and indicative of a controlling personality.

i) The father sometimes presented at trial as strident. At times, he lectured the mother. The court appreciated why she may feel overwhelmed constantly communicating with him.

44In S.S. v. S.K., 2013 ONCJ 432, (Ont. C.J.) this court wrote that courts should assess the dynamics of a family when determining if a joint decision-making responsibility order is appropriate. Particularly, the court should examine:

a) if such an order is more or less likely to de-escalate or inflame the parents' conflict;

b) if such an order is more, or less likely to expose the child to parental conflict; and,

c) whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders for the purpose of asserting control over their former spouse and children tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a joint custody order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.

45Here, the joint decision-making responsibility order has inflamed the parties’ conflict. It has increased the children’s risk of exposure to adult conflict. And, as stated above, there is evidence that the father has used the joint decision-making responsibility order to assert control over the mother. The father is focused on his rights and has over-litigated during this case.

46The parties have already disagreed about major decisions. The children required Kumon lessons to help with their reading. The father refused to financially contribute to this. He earns close to $90,000 annually.⁵ The mother deposed in her last financial statement that she is in receipt of social assistance. The father claimed the mother was responsible for the children’s reading issues due to their poor school attendance. He also wrote to her that his focus is on their Islamic studies.

47The parties have also disagreed on how to communicate with the children’s public school regarding their religious accommodation and how to deal with the children having been exposed to domestic violence by the mother’s last partner towards her.

48Both parties allege the children are distressed, although they blame the other for this. The worsening conflict between the parties is having an adverse impact on the children.

49The court finds that joint decision-making for the children is no longer viable or in their best interests. Important decisions will need to be made for them in the future. These decisions cannot be paralyzed because the parties cannot effectively communicate with each other and because they do not trust or respect each other. This breakdown of communication, trust and respect constitutes the requisite material change in circumstances to take the next step of assessing what decision-making responsibility orders are in the children’s best interests.

Part Four – What decision-making responsibility orders are in the children’s best interests?

50Any proceeding with respect to children is determined with respect to the best interests of the particular children before the court in accordance with the considerations set out in subsections 24 (2) to (7) of the Act. The court has considered these factors, where relevant.

51In considering the appropriate decision-making regime, the court is required to consider all possible frameworks, and not just those proposed by the parties. See: Chomos v. Hamilton, 2015 ONSC 5208; Koliniati v. Manolessos, 2025 ONSC 3274.

52This is not a case where a joint decision-making responsibility order is required to preserve the balance of power between the parties. See: Roloson v. Clyde, 2017 ONSC 3642. If there is any power imbalance in this relationship, it is the father who holds that power.

53The court finds it is in the children’s best interests that the mother has sole decision-making responsibility for them for the following reasons:

a) Joint decision-making responsibility is not in the children’s best interests for the reasons set out in Part Three above.

b) The level of communication, trust and respect between the parties is far too poor to warrant making an order allocating aspects of decision-making responsibility between the parties.

c) The mother is the children’s primary caregiver.

d) The mother is the parent who has arranged all the children’s medical appointments. The father has never attended a medical appointment for the children in person.

e) The mother is the parent most involved with the children’s school.

f) The father has had limited in person parenting time with the children since the parties’ separation.⁶ His relationship with them has been primarily through virtual visits.

g) The mother has made responsible decisions for the children. She has structured routines for them. She is addressing their academic, medical and social needs.

54The mother asks that she only be required to inform the father of major decisions she makes regarding the children. The evidence does not support removing the father’s input from making major decisions for the children. The mother is also responsible for their poor communication. It is in the children’s best interests to order that the mother first consults the father before making any non-emergency major decision for the children.

55The evidence informs the court that boundaries are required to ensure that the children are not unnecessarily exposed to adult conflict. It is also important that the children’s schools, doctors and service providers not receive conflicting directions from the father. The court will make orders setting out these boundaries.

56The parties agree that the children should be raised in the Islamic faith. This term in the existing order will not be changed.

57The father proposed that if the parties cannot agree on a major issue regarding the children they should jointly be required to retain a parenting coordinator. The court will not make that order. The mother cannot afford this. The court is also concerned that it will serve as a platform to perpetuate their conflict.

Part Five – Conclusion

58A final order shall go, changing paragraphs 1 and 2 of the existing order as follows:

a) Paragraphs 1 and 2 of the existing order are terminated.

b) The mother shall have sole decision-making responsibility for the children.

c) The mother shall first consult with the father prior to making any major non-emergency decision for the children.

d) The mother is to keep the father updated about the children’s health, education and well-being. She shall promptly send him copies of the children’s report cards upon receipt.

e) The father shall not contact the children’s teachers, other school officials, doctors or service providers without the prior written authorization of the mother.

59The mother is the successful party on these motions and is presumptively entitled to her costs. If she chooses to make costs submissions, she is to do so by January 19, 2026. The father will have until February 2, 2026 to make any written response. The submissions shall not be more than 3 pages, not including any offer to settle or bill of costs. The submissions should be double-spaced, with a minimum 12-point font.

Released: January 5, 2026

Justice Stanley B. Sherr

Footnotes

The mother did not seek child support because she had previously obtained an order for child support in Pennsylvania under the Interjurisdictional Support Orders Act.
The parties agreed to restrictions upon the frequency of their communications in their October 3, 2025 minutes of settlement.
The court made a finding that the mother was in breach of the existing order. She has now provided the required school information and facilitated the father’s virtual parenting time.
The mother deposed she became sick when traveling with the children overseas in the summer of 2025 and could not return to Canada in time.
The father deposed in his financial statement that he earned over $118,000 in US dollars in 2024. He claimed he was earning less in 2025.
The father had his second period of overnight parenting time during the December 2025 winter school break.