Court File and Parties

Ontario Court of Justice

Date: April 9, 2019

Court File No.: D-146-18

Between:

L.I.O. Applicant

— AND —

I.K.A. Respondent

Before: Justice Jane Caspers

Heard on: April 4, 2019

Reasons for Judgment released on: April 9, 2019

Counsel

Luke Weiler — counsel for L.I.O.

I.K.A. — on his own behalf

CASPERS, J.:

1: INTRODUCTION

[1] Within the context of this high conflict proceeding, L.I.O. ("Ms. O.") seeks to vary the Final Order of Justice Mathias-McDonald dated October 19, 2016 ("Order") with respect to access by I.K.A. ("Mr. A.") to the child, T.W.O., born December 22, 2014, aged 4 years ("T."). Ms. O. and Mr. A. are the parents of T. Ms. O. also seeks a variation of support in accordance with Mr. A.'s current earnings and the Child Support Guidelines.

2: BACKGROUND

[2] Ms. O. is twenty-seven years of age. She resides in G…., Ontario. She is not employed.

[3] Mr. A. is thirty-seven years old. He also resides in G…. Currently he is employed at … and works a rotating eight day – four-on, four-off – shift. At all material times, Mr. A. has worked 12 hours per day from 6:00 am to 6:00 pm or from 6:00 pm to 6:00 am.

[4] The parties began cohabiting in December 2012. They were married on November 3, 2012. They separated on May 27, 2016. They are divorced. The length of the relationship was four years.

[5] As I say, the couple have one child, T., who resides with Ms. O. He started school in September 2018. Based on the evidence before me, I accept that both parents love and are committed to their son. I have no reason to conclude that T. is not similarly closely bonded with both of his parents. T. has no special needs of which I am aware. He is, by all accounts, a happy, healthy child.

3: LITIGATION HISTORY

[6] The Motion to Change brought by Ms. O. was issued on July 18, 2018. It seeks changes to the Order of Justice Mathias-McDonald which was made with the consent of the parties, each of whom was assisted by legal counsel.

[7] The relevant terms of the Order with respect to custody and access are as follows:

1. There shall be a finding of paternity that Mr. A. […..] is the biological father of the child namely T. […] born December 22, 2014 for support purposes only.

2. The parties will have joint custody of T.W.O. [hereinafter "T.] born December 22, 2014, with T.'s primary residence being with the applicant mother, Ms. O. […..]

3. The parties will make their best efforts to discuss and agree upon educational, medical and religious issues that relate to T.

4. T. shall be in the care of the father for three days and two nights each week subject to the following:

   • a) The day shall begin at 8:00 a.m. unless the child is in school or daycare; and
   • b) The drop off time shall be 6:00 p.m. unless the parties agree otherwise.

5. The mother shall have T. in her care as follows:

   • a) At all other times and "despite paragraph three above", the mother will also have T. in her care on every second weekend commencing Friday after daycare or school until Monday morning when school commences, even if the father has these days off work.

6. The parents will take turns dropping off and picking up T.

7. If there is any disagreement between the parties they shall mediate to come to a resolution.

8. The father will provide the mother with his work schedule one month in advance, each and every month, commencing immediately.

9. Regardless of regular schedules in paragraph three and four above, T. shall be in the care of his parents as follows on special occasions and holidays:

   • a) Birthdays- if the parties agree they may spend T.'s birthday together. If there is no agreement to do so then T. will be in the care of the mother 8:00 a.m. to 1:00 p.m. in 2016 and in the care of the father from 1:00 p.m. to 6:00 p.m. in 2016, which schedule will alternate each year (e.g. in 2017 T. will be in the care of the mother from 1:00 p.m. to 6:00 p.m.);
   • b) Christmas Holidays- will be equally shared by both parents with the start and end date being determined by the school calendar in the mother's district. The mother shall have T. in her care in the first half of the holiday each year, except on Christmas Eve (Dec 24) when T. will be in the care of the father in 2016; and on Christmas Day (Dec 25) when T. will be in the care of the father in 2017; with the same alternating schedule for the father each year on Christmas Eve and/or Christmas day;
   • c) Halloween – T. will be in the care of the mother for each Halloween from 5:00 p.m. to 8:00 p.m. with the father dropping T. off at the mother's residence, if T. is otherwise in the father's care, and the mother bringing T. back to the father's residence;
   • d) Mother's Day – T. will be in the care of the mother from 8:00 a.m. to 7:00 p.m.;
   • e) Father's Day – T. will be in the care of the father from 8:00 a.m. to 7:00 p.m.;
   • f) July 1st – T. will be in the care of the mother from 4:00 p.m. to 8:00 a.m.;
   • g) May 24th weekend – T. will be in the care of the mother for the weekend, including the day of the statutory holiday;
   • h) Thanksgiving – T. will be in the care of both parents equally;
   • i) Easter – T. will be in the care of both parents equally;
   • j) March break – the commencement and end of the March break will be determined by the school calendar in the mother's district. The parties will share the March break with T. being in the care of the father for the first half; and in the care of the mother for the second half;
   • k) T. will be in the care of the father from noon to the following morning at 8:00 a.m. on Poya Day which occurs once a month;
   • l) T. will be in the care of the father from 9:00 a.m. to 5:00 p.m. each year on the anniversary of the respondent father's death; and
   • m) T. will also be in the care of the father on other Buddhist holidays provided it is on agreement

10. The respondent father shall pay child support for one child namely, T., born December 22, 2014, based on an annual income of $39,018.00 in the amount of $348.00 per month commencing August 1, 2016.

Custody/Access

[8] The Order of October 19, 2016 is a carefully crafted document. Although it defines the ongoing access arrangement with little specificity, the evidence indicates that the intention was to import flexibility into the custody and access arrangements for the parents as they moved forward.

[9] The Order provides that T. is to be in the care of Mr. A. on alternate weekends and 2.5 days per week and with Ms. O. at all other times including on alternate weekends when he is not with Mr. A. The rationale for this rather loosely crafted arrangement is tied to Mr. A.'s work schedule which reflects his rotating continental shift. While that schedule has been clearly defined and is available a year in advance - the parties have the schedule for 2019 – it is argued by Ms. O. the parents are not capable of reaching a consensus as to scheduling specifics. Ms. O. wishes a more stable and predictable schedule for T. and to that end, she seeks strict compliance with the Order. Mr. A. takes the position that his employment schedule, which indicates the days when he is not working, should be the days when he has T. in his care whether those days correspond with the spirit of the Order or not. Ms. O. argues that such an interpretation of the Order does not provide T. with stability and such a schedule is unworkable. The problems, as the evidence reveals, are further exacerbated considerably by an inability on the part of the parents to communicate respectfully and by the abusive and demeaning conduct of Mr. A. as directed towards Ms. O.

[10] At the time the Motion to Change was brought, Mr. A. had left Canada on short notice to travel to his native Sri Lanka. Although Mr. A. disputes the claim, Ms. O. states that she did not know when or if he was intending on returning to Canada. Mr. A. filed a Response to Motion to Change on September 27, 2018.

[11] To date this file has been case managed by me. A Case Conference was held on October 24, 2018. On that date, I made an interim order that access should continue to be "in accordance with the spirit of the agreement set out in paragraphs 4 and 5" of the Order.

[12] A motion for interim child support was argued on December 10, 2018. Child support was increased to $616.00 per month based on Mr. A.'s 2017 income. Costs were awarded against him in the amount of $250.00. I also ordered the parties to exchange Offers to Settle with respect to the issue of parenting time. This was done.

[13] On February 21, 2019, I fixed access for the next three months to provide stability pending the argument of the instant motion.

4: POSITION OF THE PARTIES

Ms. O.

[14] Ms. O. seeks an order fixing Mr. A.'s access on set dates and times, in contrast to the unfixed and variable schedule resulting from the governing Order. Specifically, Ms. O. seeks an order fixing Mr. A.'s access on alternate weekends and one afternoon per week during the school year and two-half-days per week during the school summer break. She asks that the new schedule govern, irrespective of Mr. A.'s work schedule. Ms. O. also seeks an order fixing all holiday and special day access.

[15] The rationale for Ms. O.'s request to vary the access is, quite simply, because the current schedule is unworkable. She alleges that Mr. A. acts unreasonably in scheduling access and is abusive and aggressive in his communications with her. When Ms. O. does not agree with his demands, Mr. A. engages in emotional abuse and berates her. He has stooped to name calling and to making vile allegations which are without any evidentiary foundation and which were repeated not only in his written materials, filed, but also in his oral submissions in court.

Mr. A.

[16] Mr. A. opposes the relief sought in the motion. He wishes access on a 50:50 basis to be determined in accordance with his work schedule. In addition, he wishes to be able to exercise access to T. on special days and religious holidays on seven (7) days' notice. In short, he wishes access in strict compliance with his employment schedule and at other times that he requests. He also wishes to have his child support reduced.

5: EVIDENCE

[17] This motion is supported by three affidavits from Ms. O., one dated February 15, 2019, a second dated March 11, 2019 and a third affidavit, in reply, dated March 28, 2019.

[18] Mr. A. has not brought a cross motion but has provided an affidavit dated March 26, 2019.

6: ISSUES

[19] The two issues that the court is asked to address are these:

(a) Has there been a material change in circumstances since the Order of October 19, 2016?

(b) If so, what parenting regime is in the best interest of T. and best accommodates his needs?

7: VARIATION OF FINAL ORDERS

Material Change in Circumstances—General Principles

[20] Before any steps are taken to vary a final Order, the moving party must demonstrate that there has been a material change in circumstances since the making of the last Order.

[21] According to Gordon v. Goertz, [1996] 2 S.C.R. 27, the material change in circumstances must not have been foreseen or reasonably contemplated by the judge who made the original order. The change must be to the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child. Change is not enough. The change must have altered the child's needs or ability of the parents to meet the child's needs in a fundamental way. Further, the change should represent a distinct departure from what the courts could have reasonably anticipated in making the previous order.

Factors Influencing Material Change

Continuing Conflict

[22] Evidence of continuing conflict following a consent order can support a conclusion that there has been a material change. [Zinck v. Fraser, (2006), 2006 NSCA 14, 22 R.F.L. (6th) 334 (N.S.C.A.) at para 24.] In Armstrong v. McCusker, 2017 ONCJ 592 a party sought to vary a 2009 order for "reasonable access upon reasonable notice" to specified access. Justice O'Connell found that ongoing or worsening conflict between the parents was a material change in circumstances warranting a change in access. The conflict was making it difficult, if not impossible for the parties to continue under the then-current access regime. Justice O'Connell held that specified access order would minimize conflict between the parties [par. 130, 131 and 133].

Non-compliance with Court Orders

[23] A party's extensive non-compliance with an existing court order can amount to a material change in circumstances for the purposes of the variation analysis if the breaches have a harmful effect on the child. Chin Pang v. Chin Pang, 2013 ONSC 2564; Zaidi v. Qizilbash, 2014 ONSC 3652; Merkand v. Merkand, 2006 CarswellOnt 712 (C.A.); V.J.S. v. L.J.G. (2014), O.J. No. 2238 (S.C.J.); Roloson v. Clyde, 2017 ONSC 3642

School Attendance

[24] When a child has started school and there is conflict between the parents, this can constitute a material change in circumstances. [Zattolo v. Zattolo, 2013 ONSC 3032, [2013] O.J. No. 2360 at para 25]. The fact that a child must now attend school may make a joint custody arrangement unworkable, in which case one of the parents must assume primary responsibility in terms of where the child will live. [Charpentier v. Damiano, 2013 ONSC 5589, 2013 CarswellOnt 12903 at para 2].

[25] In L.M.L.P. v. L.S., [2011] SCC 64, the Supreme Court stated that the court must limit itself to whatever variation is justified by the material change of circumstances.

Ageing

[26] Ageing does not automatically mean material change, but it can be a factor. [Brown v. Lloyd, 2015 ONCA 46].

[27] There must first be a material change, even if both parties are seeking a change in the order. [Persaud v. Garcia-Persaud 2009 ONCA 782].

[28] The issue of material change and the rationale for the approach adopted by the Supreme Court was addressed Roloson v. Clyde, 2017 ONSC 3642:

The case-law that has addressed the meaning of the phrase "material change in circumstances" in the context of child and spousal support variation proceedings has also established that a change will only be considered "material" if it is significant and long-lasting (Brown v. Brown, 2010 NBCA 5, 2010 CarswellNB 30 (N.B.C.A.); Haisman v. Haisman, 1994 ABCA 249, 1994 CarswellAlta 179 (C.A.), leave to appeal to the S.C.C. refused, [1995] 3 S.C.R. vi (S.C.C.)). Trivial, insignificant or short-lived changes will not justify a variation Hickey v. Hickey (1999), 46 R.F.L. (4th) 1 (S.C.C.); Marinangeli v. Marinangeli, 2003 CarswellOnt 2691 (C.A.)). These principles apply equally to the threshold test in a custody and access variation proceeding. The preliminary threshold test is aimed in part at ensuring that the parties do not resort to litigation whenever any change occurs, however minimal (Gordon, at para. 64; Neger v. Dalfen, 2016 ONCJ 751 (O.C.J.)). Not every circumstance, event or mistake by a parent that detrimentally affects a child will be considered a material change in circumstances for the purposes of a variation application. As Gray, J. stated in Kerr v. Easson, 2013 ONSC 2486 (S.C.J.), at para. 62, aff'd, 2014 ONCA 225 (C.A.), "[p]arents are not perfect and they will make mistakes. The court will not assume jurisdiction to correct every mistake in the guise of a material change in circumstances."

[29] In summary, the rationale for the two-part test is this: few parties have the resources to continually litigate these issues and there are significant benefits to the children and the parties involved in the stability and predictability associated with the finalizing of the issues in dispute. If variation becomes the rule, instead of the exception, the best interests of children, generally speaking may not be served.

ISSUE 1: HAS THERE BEEN A MATERIAL CHANGE IN CIRCUMSTANCES?

Conflict

[30] We turn now to the application of the general principles relating to material change to the facts of this case.

[31] In the case of Goldman v. Kudelya, 2017 ONCA 300, cited by counsel, conflict between the parents began when the parties separated. It continued throughout the litigation, and it was considered and anticipated by Kaufman J. on the variation application. He noted that in that case, continuation of the conflict did not establish a material change in circumstances. This principle was confirmed in Litman v. Sherman, 2008 ONCA 485, 238 O.A.C. 164, when it found no reason to re-open custody in a situation where "conflict between the parties was, regrettably, the norm". [paras. 36-37]

[32] Unlike Goldman v. Kudelya, in this case, the parents did demonstrate, at the outset, that they could work together. The Order of October 19, 2016 contemplated co-operation. It was an Order made on consent with terms designed to accommodate the need for flexibility required by Mr. A.'s schedule. The parties were capable of cooperating with one another in order to raise T. This finding is well supported by the evidence, the most notable being the Consent resolution in 2016. Unfortunately the regime adopted, which in the beginning showed promise, quickly deteriorated and proved unworkable.

[33] Therefore in this case it follows that the conflict between the parties does constitute either a change or a situation that could not necessarily have been foreseen by them at the time of the original Order.

[34] There is ample evidence and I find that the ongoing conflict and actions of the parents run completely counter to the spirit of the custody Order and as such is enough to constitute a material change: [Zinck v. Fraser, 2006 NSCA 14, 22 R.F.L. (6th) 334 (N.S.C.A.); Wreggitt v. Belanger; Hackett v. Sever, 2017 ONCJ 193, Armstrong v. McCusker, supra] The conflict in the instant proceeding is making it difficult, if not impossible for the parties to continue the access regime laid out in the governing Order.

School Attendance

[35] T. is older and started school in September 2018. This, combined with the conflict between the parties adds to the argument that a material change in circumstances exists.

Reciprocal Request for a Variation

[36] While this is not dispositive of the matter, it should also be noted that Mr. A. is seeking a change of his own, although he has brought no variation application on his own behalf, and thus must be taking the position that there has been a material change.

Non-compliance with Court Orders

[37] Mr. A. has stated in his affidavit that he has complied with the prevailing Order. The fact is he has not and there is ample evidence in the materials filed on this motion to support this assertion.

[38] I find therefore that the threshold test of material change has been satisfied by virtue of the following:

(a) The ongoing and escalating conflict between the parents;

(b) The fact that both parents seek a variation of the terms of the prevailing Order;

(c) The fact that T. is now older and attending school; and

(d) Mr. A.'s repeated non-compliance with the prevailing Order.

ISSUE 2: WHAT PARENTING REGIME IS IN THE BEST INTEREST OF T. AND BEST ACCOMMODATES HIS NEEDS?

Best Interests—General Principles

[39] The test for determining access is what order is in the best interests of the child. In making this determination, I have considered the "best interest" factors set out in subsection 24(2) of the Children's Law Reform Act, as well as all other relevant considerations.

[40] Once the threshold is met, the judge hearing the variation application must embark on a fresh inquiry into the best interests of the child, having regard to the matters found in s. 24 of the CLRA. [Bubis v. Jones, [2000] O.J. No. 1310, at para 25].

[41] In this fresh inquiry both parents bear the evidentiary burden of demonstrating where the best interests of the child lie: there is no legal presumption in favour of the custodial parent. [Bubis v. Jones, supra at para 25]. Both parents are afforded the opportunity to present a plan which, in the view of the respective litigants, best meets the needs of the child.

[42] The merits of an application for an order relating to access to a child shall be determined on the basis of the best interests of the child in accordance with subsections (2), (3) and (4) of section 24(1) of the Children's Law Reform Act, R.S.O. 1990, c. C.12. The child's best interests are not merely "paramount", they are the only consideration in this analysis: [Gordon v. Goertz, [1996] 2 S.C.R. 27 at para. 28]

[43] Furthermore, and most importantly, the court must ascertain a child's best interests from the perspective of the child rather than that of the parents. Gordon v. Goertz, [1996] 2 S.C.R. 27.

[44] A starting point to assess a child's best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. [See: I.A. v. M.Z., 2016 ONCJ 615].

[45] Assuming safety is not a concern, the child should have maximum contact with both parents if it is consistent with the child's best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27. Furthermore, the party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. M.A. v. J.D., [2003] O.J. No. 2946 (OCJ).

Maximum Contact

[46] The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child's physical or mental well-being. Pastway v. Pastway (1999) 49 R.F.L. (4th) 375 (Ont. General Division).

[47] There is a legal presumption that regular access by a non-custodial parent, in this case Mr. A., is in the best interests of children. It is trite to note that the right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. [Jafari v. Dadar [1996] N.B.J. No. 38 (NBQB)].

[48] Absent concern about such issues as abuse, each parent should be expected to support the children's relationship with the other parent, and to take steps to ensure that the children have a positive attitude about that relationship.

[49] If one parent does not facilitate, or undermines the child's relationship with the other parent, it will be a relevant factor in determining their ability to act as a parent (a listed best interests factor under s. 24 (2) of the CLRA. [See: Leggatt v Leggatt, 2015 ONSC 4502].

Conduct of the Parents

[50] In this case, I find that Ms. O. has made numerous efforts and spent hours attempting to resolve the impasse faced by the parties with respect to access implementation. Both have quite different views on the issue of what constitutes the best regime for access. On December 10, 2018 I ordered the parties to exchange Offers to Settle. This was done.

[51] While Ms. O. has devoted hours in an effort to balance Mr. A.'s work schedule with an access regime that was in compliance with the prevailing Order and which she felt would afford T. the stability to which he was entitled, Mr. A. did not. He attended at court with a copy of his 2019 employment schedule and insisted then, as he continues to do, that access take place in accordance with his days off. There is no evidence of compromise or conciliation.

[52] Mr. A. has stated in his affidavit that he has complied with the prevailing Order. The fact is he has not. Indeed, Ms. O. has completed a careful comparative analysis of the dates when Mr. A. sought access and the terms of the prevailing Order. Of the 44 blocks of time requested by Mr. A., I found that 17 were not in compliance with the Order. This conclusion was never challenged by Mr. A.

[53] On Christmas Day, 2018, Mr. A. sent an email to Ms. O.'s lawyer stating that the reasonable proposal that Ms. O. sought to implement was not acceptable and insisting that she adhere to his proposal regarding access until the next court date some 2 months hence. This was not disputed by Mr. A. This is but one further example of Mr. A's unwillingness to be flexible. He has shown himself to be intransigent and unyielding.

[54] Despite formal requests from Ms. O.'s counsel that Mr. A. contact him directly with respect to the access scheduling, on at least two occasions – in early January 2019 and again in February, 2019 – Mr. A. contacted Ms. O. directly to demand access on his terms failing which he threatened to contact the police and request their involvement. The dates of January 4-6, 2019 and February 17-19, 2019 were not in accordance with the prevailing Order. Nevertheless, Ms. O. acquiesced to the request in January. She refused in February. In response, according to the evidence, Mr. A. began swearing at her, abusing her, called her "disgusting", and told her that she should be ashamed of herself. Mr. A. threatened Ms. O. "Do not f*** with my child rights or my human rights." In due course, when asked to direct his comments to her counsel, Mr. A. responded "I don't give a f*** about him." Mr. A. did not deny these outbursts. In fact, he perpetuated them in the courtroom. At no point did he apologize to counsel or to the court.

[55] In summary, the Court has to view what is in the best interests of the child, not the parents. The "maximum contact" principle, as it is called, is mandatory, but not absolute. The maximum contact principle only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors show that it would not be in the child's best interests, the court can and should restrict contact. [Young v. Young, [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J. See: Casselman v. Noonan, 2017 ONSC 3415]. In this case, Mr. A.'s approach to access has created chaos and uncertainty under an umbrella of intimidation.

[56] There are several other aspects to this proceeding that militate against Mr. A.'s request for a 50:50 parenting arrangement.

Mr. A. Denigrates Ms. O.

[57] A court may restrict access if a parent uses access as an opportunity to denigrate the other parent. [J.M. v. M.M., [2000] O.J. No. 142 (SCJ); Frost v. Allen [1995] M.J. No. 111 (Man.QB)] Where denigration is severe, access can be denied.

[58] In V. S. J. v. L.J.G., [2004] O.J. No. 2238 (S.C.) at para. 135, Blishen J. provided a useful overview of the factors that have led courts to terminate or minimize access. Long term harassment and harmful behaviours towards the custodial parent which undermines the physical and emotional safety of the custodial parent causing the parent and child stress can lead to a minimizing of access. [Stewart v. Bachman [2003] O.J. No. 433 (SCJ); Dixon v. Hinsley, [2001] O.J. No. 3707 (OCJ); I.A. v. M.Z., 2016 ONCJ 615].

[59] I certainly do not intend to terminate Mr. A.'s access today as such relief has not been requested and I cannot find that such a draconian measure would be in T.'s best interest. However, I caution Mr. A. that his negative behaviour must stop. I find that there is a legitimate concern that Mr. A.'s behaviour towards Ms. O. has the potential to have adverse effects on the relationship between mother and son as T. grows older. Should that start to happen, Mr. A. may find his access restricted as such parental misconduct cannot be tolerated.

Mr. A.'s Roommates

[60] Mr. A. has refused to provide information about his roommate and has told Ms. O. that it is none of her business who he resides with and that she should "mind her own business." He made the same observation in his submissions.

[61] A 35.1 Affidavit is filed by the litigants so that everyone knows the living arrangements of each of the caregivers. It is a safety issue. Mr. A.'s friend and roommate may be very suitable to be around T., but Ms. O. and the court need to know something about him.

Termination of Telephone Access

[62] Until October 24, 2018, Ms. O. and T. had nightly telephone conversation when T. was in the care of his father. After that date, being the date on which a Case Conference was held, Mr. A. refused to allow any further calls. Initially Mr. A. stated that he did not stop the calls, however as his submissions progressed, he contradicted himself. He made it clear that as his time with his son was limited he was not going to allow Ms. O. to encroach upon his "quality time" with T. He went on to say that, from his perspective, the calls had a negative impact on T. who became emotional while speaking with his mother. Therefore, he took steps to "minimize" them.

[63] This was not a child focused decision and runs counter to the maximum contact principle.

T.'s Routine

[64] T. began schooling in September 2018. Ms. O. argues that he needs a schedule and routine. In the first 10 weeks of 2019 T. was in the care of Mr. A. for the following blocks of time:

• a. Sunday to Tuesday
• b. Monday to Wednesday
• c. Tuesday to Thursday
• d. Wednesday to Friday
• e. Thursday (one night)
• f. Friday to Sunday
• g. Saturday to Monday

[65] T. is unsure when he will be exercising access on any given week. Ms. O. has told the court that T. is concerned that Mr. A. may attend at the school and remove him on a non-scheduled day and that the child's concern manifests itself in negative behaviour such as kicking and screaming.

[66] The court must always consider the level of hostility and the extent to which that hostility may undermine the child's emotional stability and well-being.

[67] Mr. A. argues that T. will be negatively impacted by any change in routine. I disagree. Children are very adaptable, and they can adapt quite readily to alterations that occur in access arrangements. [see Kelly and Lamb (2000), and Kelly (2005)].

Section 24 of the Children's Law Reform Act

[68] No one factor in the statutory definition of a child's best interests is given statutory preeminence. Wilson v. Wilson, 2015 ONSC 479.

[69] The test for determining access is what order is in the best interests of the child. In making this determination and in addition to those issues which I have previously addressed, I have considered the "best interest" factors set out in subsection 24(2) of the Children's Law Reform Act. Applying the factors laid out in s.24(2) of the CLRA, I note the following:

(a) Love and affection: There is no question that there are strong ties of love and affection between Ms. O., Mr. A. and T. Ms. O. has been the primary residential parent and primary caregiver of T. since before the Order was made in 2016. T. misses her when he is not in her care, and he was upset by not being able to speak to her at night while in his father's care. Mr. A. has exercised regular access with T. throughout his life. I have no doubt that the child is well cared for during his periods of access.

(b) Views and preferences: T. is a four-year-old boy. His views and preferences have not been put before the Court in an independent and reliable way. No OCL was appointed given the child's age. However, both parents have indicated that they have been told by T. that he loves them and enjoys spending time with them. I accept that.

(c) Stable home environment: T. has resided with Ms. O. since prior to the Order in 2016. She provides him with stability, maintains his routine, ensures that he gets to school on time, and works with third-party service providers. Mr. A. apparently lives with a roommate in his current residence where he has lived for less than a year. He will not tell Ms. O. directly who he is living with, saying it is none of her business, although she has heard anecdotally from T. that it is a friend named "Nick". The court is told that Mr. A. appears to have a friend sleeping in T.'s bed. There is no independent evidence of this, but if true, it is inappropriate.

(d) Plan Proposed: Ms. O.'s plan is to end the constant conflict over access and establish a regular and predictable schedule. She proposes to schedule access for Mr. A. on alternating weekends and one afternoon per week, with no variation based on his work schedule. This will allow T. to have a stable home and a routine. Mr. A.'s plan, according to his affidavit, is to have T. every day he is not working, four days out of eight. Under his plan, there would be no consistency in the exercise of access. His plan is skeletal at best. I note as well that Mr. A.'s four-on, four-off schedule is based on his own work schedule, which was changed without notice in December 2018 from his previous continental 5-4-3 schedule. There is no evidence that this will not be changed yet again in the future. In theory if access were co-ordinated in accordance with his current work schedule it may be varied in the future which could potentially lead to more conflict and instability.

(e) Permanence and Stability: Ms. O. has provided T. with a stable, permanent home. She was his primary caregiver prior to the final order and has remained so since. By contrast, in 2018 Mr. A. departed Canada to go to Sri Lanka on less than a day's notice, not returning for several months. Mr. A. has said that he intends to return to Sri Lanka from time to time. He is certainly entitled to do that but should provide Ms. O. with advance notice.

(f) Ability to Act as a Parent: Ms. O. is a fit and able parent. Notwithstanding the inflammatory accusations advanced by Mr. A. both in his written and oral submissions, Mr. A. consented to an order less than three years ago providing that primary residence would be with Ms. O. Furthermore, Mr. A. did not commence a Motion to Change to vary his access from that to which he agreed in 2016. Instead the proceeding was commenced by Ms. O. Mr. A. has made some problematic decisions, including blocking T. from his nightly phone calls with his mother, inviting strangers into the home, failing to provide full disclosure about people who would be spending time with T. and threatening to call the police to take his infant child for access when he doesn't get his way. Mr. A.'s dislike of Ms. O. is palpable. It is difficult to imagine that T. is not being exposed to this in his home. His unwillingness to communicate has simply made matters more difficult.

Parenting Proposals

[70] Ms. O. submits that a specified schedule should be set to take the uncertainty and conflict out of access. T. is a young child who has just begun school. A specified access schedule will provide greater certainty and reduce the potential for conflict.

[71] Mr. A. seeks a 50:50 sharing of time with T. An equal-parenting time plan requires a high level of communication and coordination between the parties, particularly when the child is very young. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child. [See: Bokor v. Hidas, 2013 ONCJ 40].

[72] As noted in J.J.G. v. J.D.S., 2017 ONCJ 586:

[169] As with joint custody, a higher degree of cooperation and mutual respect is needed to make an equal parenting arrangement work effectively. Parents need to be able to coordinate medical and health issues concerning the child. They need to be able to coordinate extra-curricular activities that will be important for her. There should be some level of consistency in the two homes if an equal parenting schedule is going to work. None of these elements are present here.

[73] In Elliott v. Loewen, 44 R.F.L. (3d) 445 (Man. C.A.), the Manitoba Court of Appeal made it clear that children's needs change and will change frequently. Parenting orders should reflect those changes. It wrote:

169. The needs of a child in relation to each of his parents change frequently over the years from infancy to adulthood. No court order can be crafted to address those ever-changing needs and the concerns of separated parents as they relate to their child; thus, the need for variation. Ideally, variation will occur by the consent of the parties, who are in the best position to recognize the best interests of their developing child. Where the parties agree on the needs of the child and the need for ongoing flexibility regarding custody and access, court intervention is happily avoided. At this state of this child's life, periods of access should be regular and meaningful in light of this child's needs in relation to nap times, day care involvement, and home routine.

[74] I find that a shared parenting regime would not meet T.'s needs for the reasons set out and that such a schedule would be unworkable.

Child Support

[75] Financially supporting one's children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint custody order as it demonstrates poor judgment and an inability to prioritize the child's interests. [See my comments in Jama v. Mohamed, [2015] ONCJ 619; P.H. v. T.J., 2017 ONCJ 166].

[76] On December 10, 2018 I made an interim order for child support payable by Mr. A. to Ms. O. for T. in the amount of $616.00 per month commencing December 1, 2018. That quantum of child support was made by reference to Mr. A.'s income for 2017. I see no reason why that amount ought not to continue to be paid subject to a review on August 1, 2019 based on Mr. A.'s 2018 income as determined in his Notice of Assessment.

8: DECISION

[77] It is unfortunate that the parties did not attempt mediation prior to commencing litigation as was contemplated in the Order of May 19, 2016 at paragraph 7. For whatever reason that did not occur.

[78] Having carefully considered all the evidence before me, I propose to make the order requested by Ms. O. with some modifications. Mr. A. shall have his access on alternate weekends with some midweek access. In keeping with the principles enunciated in L.M.P. v L.S., supra, I am not proposing today to vary the current joint custody order in place, although a compelling argument could be made that I do so.

[79] I recognize that Mr. A. will not be pleased with the decision and the proposal that I will advance. However, this is an interim order and if there can be a demonstrated shift in attitude by Mr. A. towards Ms. O. then ultimately any final order may import more flexibility. However today the evidence supports a more structured approach to Mr. A.'s access with T.

9: ORDER

[80] There shall be an interim Order as follows:

1. Order to go in accordance with paragraphs 1, 2, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the Notice of Motion.

2. I.K.A. shall have access during the school year with the child, T. born December 22, 2014 as follows:

Regular Access

(a) Commencing Friday April 12, 2019, on alternating weekends from after school or daycare on Friday until 6:00 pm on Sunday;

(b) In the event that the Friday is a PD Day then the access shall take place commencing on Thursday from after school or daycare until Sunday at 6:00 pm.

(c) In the event that the Monday is a Statutory Holiday then access shall take place from Friday after school or daycare until 6:00 pm on Monday.

(d) In the event that I.K.A. is not available to exercise his access on the alternate weekend from Friday to Sunday, in whole, or in part, due to his employment, then:

(i) If he is available on a PD Day which is attached to his alternate weekend, then he shall have access from Thursday after school until 6:00 pm on the day before he returns to work.

(ii) If he is available on a Statutory Holiday which is attached to his alternate weekend, then he shall have access from 8:00 am on the first full day that he is not working on that weekend until 6:00 pm on Monday.

(iii) If he is not available for the full weekend from Friday to Sunday, then his access shall commence during the weekend at 8:00 am on the first full day that he is not working and will continue until 6:00 pm on the day before he resumes his employment.

(iv) In the event that he is not available to exercise access at all on the designated weekend, then he shall forego access on his designated weekend and access shall be deferred until the next scheduled alternate weekend as provided for in this order.

Midweek Access

3. I.K.A. shall notify L.I.O. by text or email by noon each Friday of the day on which he wishes to have his midweek access. The access shall take place from after school or daycare until 7:00 pm. If I.K.A. does not notify L.I.O. in compliance with this term, then there shall be no mid-week access.

4. If the parties cannot agree on the issue of costs, then submissions may be filed by either party by April 26, 2019 at 4:30 pm. Any responding submissions shall be filed by May 10, 2019 at 4:30 pm. Costs submissions shall be limited to five pages, double spaced.

5. Approval of the Order by I.K.A. is waived.

Released: April 9, 2019

Signed: Justice Jane E. Caspers