Court Information

Court File No.: D91327/16 Date: March 23, 2017 Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Parties

Between: Amy Hackett, Applicant (mother)

and Itai Sever, Respondent (father)

Before: Justice Robert J. Spence

Trial Heard: 14 March 2017

Reasons for judgment released on: 23 March 2017

Counsel

Ms. Karmel Sinclair — for the applicant, mother

Mr. Aron David — for the respondent, father

Introduction

[1] There are two motions to change before the court. The father commenced his motion to change seeking specified unsupervised access to the two children of the relationship.

[2] The mother responded with her own motion to change. In that motion to change she seeks:

1. an order that the father's access to the children be supervised;
2. a change from joint custody to sole custody to herself; and
3. child support payable by father for the support of both children.

Issues

[3] There are three issues to be decided by the court, namely:

1. What income should be attributed to the father for the purpose of making a child support order for the two children?
2. Has there been a material change in circumstances since the making of the final order such that the final order for access ought to be changed from "reasonable access on reasonable notice" to some other form of access?
3. Has there been a material change in circumstances since the making of the final order such that the final order for custody ought to be changed from joint custody to sole custody?

Background

[4] The parents cohabited for about four years, from 2009 to 2013. There are two children of the relationship, both daughters.

[5] The child, Si.. is six years old; and the child Ar.. is four years old.

[6] When the parties separated in August 2013, the mother took both children and moved with them into a shelter.

[7] In October 2013, the mother commenced an application seeking custody of both children, as well as supervised access to the father. As I noted earlier, she made no claim for child support at that time.

[8] On September 24, 2014, Justice Carolyn Jones made a final order ("Order") providing for:

1. Joint custody of both children to the parents; and
2. Father to have reasonable access on reasonable notice.

[9] It is important to note that Jones, J. made that Order on consent, and without having presided over an evidentiary hearing.

[10] Following the making of that Order the father began to exercise access, typically once, twice or three times each week. This frequency of access lasted until about April 2016.

[11] The father's access during this period occurred in the mother's home, and in the mother's presence. The mother says that because Si.. has special needs – including Autism Spectrum Disorder – it is important that her primary caregiver be present at all times to ensure consistency of parenting.

[12] Additionally, the father was doing shift work which made his availability for access unpredictable.

[13] On April 17, 2016, an incident occurred which ultimately led to a change in the access regime.

[14] On that day the father attended the mother's home for his access visit. The parents have very different versions of the events which transpired on that day.

[15] The father says that the mother became angry with him and told him to "stay the fuck out of her kitchen". She then said she was leaving the home for 30 minutes, but she failed to return for about 2.5 hours. He says they then argued about the fact that she had been absent for so long.

[16] The mother denies having used any foul language. She says that before she left the home she provided the father with snacks to give to the children in her absence. She says that when she returned home after doing her errands, the father was "visibly shaken, upset and furious that I had left him alone with the children for so long". She says he was "livid".

[17] She says he then used profane language and made accusations toward her and Si.., accusing them both of being prostitutes, and accusing the mother and Si.. of running a prostitution ring.

[18] She says he then used profane language and made accusations toward her and Si.., accusing them both of being prostitutes, and accusing the mother and Si.. of running a prostitution ring.

[19] She says she demanded that he leave her home and he repeatedly refused to do so. In an effort to get him to leave, she threw his belongings outside, following which he then left.

[20] The next series of events is mostly not in dispute.

[21] The father called both the police as well as the Children's Aid Society ("society"). He says he telephoned the police "to discuss my concerns about what had just transpired and to ask about my rights as a father."

[22] While acknowledging that he telephoned the society, the father denies that he actually "complained" to the society about mother's parenting. However, the society did initiate an investigation of the mother as a result of the father's call.

[23] On May 25, 2016, the society wrote to the mother:

[thanking her] for working cooperatively with the society . . . . [and concluding] no evidence of harm or mild evidence of harm were verified. No further assessment/services are required by the society and your file will be closed.

[24] After the April 2016 incident, the mother did take steps to cut back the father's access. She emailed the father on April 29, 2016 proposing that he exercise access for about two hours on Sundays, in the presence of the paternal grandmother, and to occur while the mother was absent from the home.

[25] The mother was not prepared to allow the father to exercise access without the paternal grandmother being present, given Si..'s special needs. She trusted the paternal grandmother to appropriately supervise the father's access for short periods of time.

[26] This kind of access continued, more or less until November 2016. In an email dated November 18, 2016 mother unilaterally cancelled the access visit scheduled for that date.

[27] On November 21, 2016, mother sent another email advising the father that henceforth the access visits would no longer take place in her home. Mother gave the father the name(s) of supervised access facilities for father to contact should he wish to continue to exercise access.

[28] Mother stated that father's inability to control Si..'s smearing of her own "shit" on the walls precluded him from having access in her home.

[29] When the parties appeared before me at a case conference on January 6, 2017, there had been no access since about November 13, 2016.

[30] At that same case conference, I made a temporary order, on consent, requiring the father to pay child support to the mother in the amount of $322 per month, based on his line 150 income in his 2015 Notice of Assessment in the amount of $21,145, support to commence January 1, 2017.

[31] On the same date, the parties agreed to a focused hearing pursuant to Rule 1 of the Family Law Rules, whereby the parties were to file their evidence in chief by affidavit, and they would then each have time-limited cross-examination of the opposite party at the subsequent hearing. The issues at the focused hearing were to be the competing access and custody claims by the parents, as well as the finalization of child support.

Child Support

[32] The mother sought child support in the amount of $373 per month based on what she says is father's "declared income" for 2015 in the amount of $25,000.

[33] However, it is clear from the evidence, referred to earlier, that his income for 2015 was $21,145. Accordingly, I affirm on a final basis the temporary child support order which the parties agreed to on January 6, 2017. Support is effective the first day of the month following the issuance of mother's claim for child support, namely, November 1, 2016.

[34] Commencing in 2018, the father shall make annual financial disclosure to the mother no later than June 30th each year, for so long as he is obligated to pay child support. In the event mother makes a claim for section 7 expenses, pursuant to the Child Support Guidelines, she shall also make full financial disclosure, including documentary evidence of the claimed section 7 expenses.

Father's Claim to Change the Access

a. Has there been a material change?

[35] The starting point for the court to consider in determining whether to change a final order for custody or access is section 29 of the Children's Law Reform Act, which provides:

Order varying an order

29. 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. R.S.O. 1990, c. C.12, s. 29.

[36] In the leading case of Gordon v. Goertz, [1996] 2 SCR 27, the test for variation of a custody or access is set out by the court, at paragraphs 12 and 13:

12 What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), 35 R.F.L. (3d) 169 (B.C.S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.). Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. "What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place": J. G. McLeod, Child Custody Law and Practice (1992), at p. 11-5.

13 It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

[37] In the present case, it is apparent that access is no longer working effectively. Instead of reasonable access on reasonable notice, as provided for in the Order, the mother has now determined two things:

1. Access duration shall be very limited; and
2. Access to the children can only occur if it is supervised.

[38] Whether or not the mother was justified in deciding unilaterally to dictate the terms of access to the father, that is not what was contemplated by the Order. That is not what is meant by "reasonable access on reasonable notice".

[39] Reasonable access on reasonable notice, by its very nature, can only work if there is a level of cooperation between the parents.

[40] The changes imposed by the mother, and acquiesced in by the father are "material".

[41] The Supreme Court of Canada in Gordon, supra, stated that once the threshold test is met, the court must then embark upon the inquiry afresh. At paragraph 17, the Court stated:

17 The threshold condition of a material change in circumstance satisfied, the court should consider the matter afresh without defaulting to the existing arrangement: Francis v. Francis (1972), 8 R.F.L. 209 (Sask. C.A.), at p. 217. The earlier conclusion that the custodial parent was the best person to have custody is no longer determinative, since the existence of material change presupposes that the terms of the earlier order might have been different had the change been known at the time. (Willick v. Willick, supra, at p. 688, per Sopinka J.)

[42] In my view, the parties would not have agreed to an access order which stated "reasonable access on reasonable notice" had the parties – or either of them - been aware that the access would become so severely limited and that the mother would insist on supervised access to the father.

[43] As I stated earlier, the Order was made on the consent of the parties, without the court conducting an evidentiary hearing. But there can be little doubt that the court would also have declined to make such an order if a hearing had been held and if the court had been made aware of how the access would ultimately unfold, as discussed herein.

[44] I conclude that the manner in which access subsequently developed was neither foreseen, nor was it foreseeable.

[45] Does the change also affect the best interests of the children? In my view it does.

[46] There is no dispute that the child Ar.. does reasonably well when she is spending time with her father. Mother herself states that it appears father can handle Ar.. alone. It also appears that Ar.. enjoys spending time with her father.

[47] Limiting access to Ar.. in such a restrictive way, is not in Ar..'s best interests.

[48] The father has had dozens, even hundreds of access visits with the children since the Order was made in 2014.

[49] In his evidence, the father stated:

In my experience both Si.. and Ar.. have different interests, needs and temperaments; both because of their age and because Si.. is on the moderate-to-severe autism spectrum. Additionally, because the mother reduced my access with the children to two hours per week, both children sought as much attention from me as possible during these visits. Accordingly, at this juncture, I believe that it would be in both [their] interests to spend time with me individually. While I am torn on spending time with our children separately, ultimately, at this time [father's emphasis], I believe it would be in the children's best interests. I do not want Si.. to feel left out of access and accordingly, my proposal provides that I will being [sic] Si.. a day before Ar.. and that I will see them both within a short time-frame.

[50] Father seeks 5.5 hours per week of unsupervised access to Si.., on Sundays. He also seeks 6.5 hours per week of unsupervised access to Ar.. on Saturdays.

[51] The mother's proposal for father's access is one hour of supervised access each week with both children together, followed immediately by three hours of unsupervised access with Ar..

[52] Her alternate proposal for access to Si.. would require father to attend specialized therapy with Si.. for one hour per week, with Si..'s therapist.

[53] As part of this alternate proposal, father would also have four hours per week, unsupervised with Ar..

[54] I find there is some merit to the proposals of both parents.

[55] However, I cannot conclude that it is in the children's best interests to impose the overly-restrictive access regime which mother is proposing – particularly for Ar..

[56] I intend to expand father's access to both children. In doing so, it would be appropriate to transition the expanded access by not over-burdening the father, given Si..'s special needs. So as to avoid over-burdening him, I will order the access to the children to take place on an individual basis, for each child, at least at the outset.

[57] For reasons which I shall expand upon in the next section of my reasons dealing with the custody issue, I conclude that father is not yet at the stage where he should be having more than short periods of unsupervised access with Si..

[58] However, there is no reason to conclude that his access to Ar.. should be unduly restrictive.

[59] I will grant the father's request for 6.5 hours of weekly access to Ar.., each Sunday from 11:00 a.m. until 5:30 p.m., or such other dates and times as the parents may agree, in writing.

[60] For Si.., the access will begin with supervision, either at Access for Parents and Children Ontario ("APCO"), or some other mutually agreeable supervised access facility. The access may be for up to three hours each week, and shall continue for a period of not less than four months.

[61] The fees payable, if any, for the supervised access shall be borne by the father.

[62] During this period of supervised access, the father shall take whatever courses or programs are recommended by the therapists/experts who are currently providing such therapies to Si.. to enable him to gain a better understanding of Si..'s needs, and how to appropriately address those needs at such time as access may become unsupervised.

[63] In addition to the foregoing supervised access, father may have such additional access as may be recommended by Si..'s therapist, for the purpose of allowing father to participate in Si..'s therapies at BTD. The court's intention in this regard, is to facilitate the father's education and better understanding of Si..'s needs and how to implement her therapies while he is enjoying his contact time with her.

[64] Following the later of the four-month period and father providing documentary evidence that he has satisfactorily completed such courses/programs, and that the access with Si.. has taken place in a positive manner, as evidenced by the access supervisor's notes, the access to father may be expanded to three hours per week unsupervised.

[65] This access shall continue for not less than a further four-month period. Following this period, and provided that this unsupervised access occurs in an overall positive manner, the access shall then be expanded to five hours per week unsupervised.

[66] I recognize that there may be some element of subjectivity in determining the foregoing milestones. In the event the parties are unable to agree on the expansion of access and, specifically, whether father has fully complied with these conditions, the parties may attend before me on a review, without the need to file an originating application or a new change motion. However, the review shall not occur prior to April 1, 2018.

Mother's Claim to Change from Joint Custody to Sole Custody

a. Father's Position

[67] The father submits that:

1. There has been no material change in circumstances since the Order;
2. Even if there has been a material change, it was foreseeable by the parties; and
3. Even if there was a material change that was not foreseeable by the parties, the change is not such that joint custody must be changed to sole custody, in the children's best interests.

b. Material Change/Foreseeability

1. Conflict in the Relationship

[68] The mother cites numerous incidents of abusive language by the father inflicted on her. In some cases, she says, the abusive language occurred in the presence of the children.

[69] Mother refers in her evidence to years of "name calling, yelling and intimidation".

[70] Her evidence is that she has sought out counselling to deal with the impact of the father's behaviour on her, as well as the impact on the two children.

[71] In October 2013, mother attended at the Child Development Institute ("CDI"), Family Violence Services for an assessment and intervention plan to deal with these claims of repeated violence and abuse by the father against her.

[72] Mother recounted to the Service Coordinator of CDI the history of this abuse, which is documented in the evidence at this trial. The court considers this evidence as some corroboration of mother's assertions regarding the father's abusive behaviours.

[73] Mother states that she cannot co-parent with someone who has "out-righty [sic] called me a 'bad parent'"; and, she asserts, it is unrealistic that she be required to do so.

[74] For his part, the father provides little or no evidence to address or respond to the mother's evidence about abusive behaviour. In his cross-examination, he did deny using vulgar language in front of the children; but he did not deny calling the mother a prostitute and accusing her of running a prostitution ring.

[75] In his testimony, father revealed to the court that his opposition to the mother and to her parenting has now become very pronounced. For example, he now says:

• He is requesting that the mother and both children submit themselves for drug testing – even though there is no evidence before the court that there is a basis for this; and
• He says that he "promises" more society involvement – clearly telling mother that he wasn't satisfied with the first society investigation, so that there will be more complaints in the future and more intrusive society investigation flowing from those complaints.

[76] On the totality of the evidence before me, I find the mother's evidence regarding the father's hostility and abusiveness toward her to be credible.

[77] The father says that this conflict is not a material change since the making of the original order because:

[at the time of the Order] the court was aware that the mother believed that we were "unable to parent together" and her allegations that I [the father] "would often fly into an anger rage" [because mother had pleaded this in her original Application leading to the final Order]

[78] The essence of the father's argument is this: (If) I was abusive toward the mother prior to the making of the final Order and, if I continued to be abusive toward the mother afterwards, this kind of behaviour is not only foreseeable but it does not represent a material change in circumstances.

[79] Father relies on Dunn v. Shaw, 2014 ONSC 1953, a decision of Minnema J. who says the following at paragraph 47:

[referring to Gordon, supra] In that case the conflict was constant and did not constitute a change since the previous order and it was not unforeseen at the time the order was made. The test was not met. Here, I similarly find that the conflict after the order was not new or unforeseen and that the test has not been met.

[80] However, "conflict" falls along a spectrum. For example, there is conflict which may consist solely of verbal disagreements about certain decisions that must be made for a child, such as (for example) which dentist the child will go to, or whether a child should be enrolled in a particular extra-curricular activity. I would characterize those sorts of conflicts as at the lower end of the spectrum.

[81] And then there is conflict which falls toward the other end of the spectrum, such as swearing, vulgar language and accusations that the mother and the child are running a prostitution ring.

[82] In this case, the conflict also includes threats to somehow impose mandatory drug testing on the mother.

[83] It also includes threats to again complain to the society and cause further intrusion into the lives of the mother and the children.

[84] While this kind of conflict may not rise to the level of outright physical assaults, it is just a rung or two below that on the scale of conflict. It does amount to a direct personal attack on the other parent, something which that other parent ought to be shielded from as much as possible – and, in particular, something which children should not be exposed to.

[85] Wreggitt v. Belanger, is a decision of the Ontario Court of Appeal. The Court of Appeal was considering the reasons of the trial judge who had granted the motion to change, and who noted that there was some conflict between the parties and concluded that it was important to reduce conflict, stating:

The number of transitions between the two homes should be minimized to reduce the conflict for the children.

[86] The trial judge had found that the conflict was "worsening"; and the Court of Appeal concluded that the "worsening conflict justified the trial judge's decision to vary" the original custody award.

[87] At paragraph 20, the Court of Appeal stated:

Conflict and lack of co-operation, whatever the source, are an impediment to an effective joint parenting arrangement, as well as a source of stress for the children. Although the trial judge in 1997 noted the existence of anger and hostility between the parties, she also complemented them for undertaking "marathon efforts" at mediation to work out the children' schedule, and for making regular alterations to the children's schedule in spite of those emotions. Any cause for optimism in 1997 that the parties could overcome their hostility and co-parent effectively, had clearly vanished by 2000, and accordingly justified the noted orders.

[88] In the present case, it is difficult to know how much conflict existed at the time of the Order, because Jones, J. did not conduct an evidentiary hearing and, accordingly, there was no evidentiary record before this court on the present motion to change.

[89] However, it is a reasonable inference that the parties themselves would not have consented to a joint custody order if they could have foreseen this level of conflict either continuing or escalating subsequent to the Order.

[90] For those reasons alone I would have concluded that a material change in circumstances has occurred which now justifies considering the custody matter afresh.

[91] However, there are other reasons which have led me to this conclusion as well.

2. Attempts to Diminish Mother's Role as a Parent

[92] The father, in his cross-examination directly accused the mother of being a bad parent and incapable of looking after the children effectively.

[93] For example, when he was confronted in cross-examination with the society's conclusion that there were no protection concerns with the mother's care of the children, he responded:

[the society] didn't take the time to look into the matter

[94] He said that if the society had been more thorough it would have concluded that there were child protection concerns with the mother. Essentially, he accuses the society of lack of due diligence in conducting its statutorily mandated investigation.

[95] He was asked why he called the police immediately following the April 2016 incident. After all, he was not alleging that the mother had committed a crime; so what was the point of that telephone call?

[96] His response was that he wanted to start a "paper trail to protect my rights".

[97] The court concludes from these actions – complaining to the society and involving the police – that the father was on a campaign to discredit the mother's parenting.

[98] In the court's opinion, by engaging in these actions, the father was attempting to undermine the mother's parenting of the two children, and create a paper trail which, he hoped, would eventually lead to a lesser role for the mother, and a greater role for himself.

[99] The court views this kind of campaign as a significant "impediment to an effective joint parenting arrangement" (Wreggitt, supra). And again, there is no evidence that this kind of campaign existed when the parties agreed to the final Order.

3. Mother as De Facto Sole Custodial Parent

[100] Father's evidence on the issue of who had been making the custodial decisions for the children was confusing and inconsistent.

[101] In his effort to persuade the court that the joint custody order should not be changed, the father attempted to urge on the court that he and the mother are quite capable of making decisions jointly. He even provided an extensive list of various decisions which he says he and the mother jointly undertook.

[102] However, a review of that list of so-called joint decision-making reveals that the various interactions he referred to were more about discussions, rather than decisions. And many of the items referred to were about father seeking updates from the mother.

[103] On the other hand, he also gave evidence that he and the mother were not making decisions jointly because the mother herself was standing in the way of this kind of cooperative engagement.

[104] As I stated, many of the so-called areas of "cooperation" are more about mother providing the father with updates as to how the children are doing in certain areas. It appears from the various emails which the father provides in his evidence that the mother is endeavouring to keep the father informed about (in particular) Si..'s progress and developments with her autism therapies.

[105] Undoubtedly there have been attempts at cooperation. But the cooperation is more about information sharing rather than decision-making and, in particular, not decision-making about major things for the children.

[106] Despite the father's internally inconsistent evidence (there is co-operation vs. there is no co-operation), the main thrust of father's evidence at this trial was that major decision-making has been undertaken by mother alone. And in that regard, he ascribed bad motives to the mother.

[107] Early in his cross-examination he stated: "I have never had conflict with Amy" [mother]. And in the very next breath, he proclaimed that the mother has "stalked me, she has harassed me".

[108] He acknowledged in cross-examination that the mother has made the major decisions for the children.

[109] He said "I have concerns with what she chooses not to discuss with me about the children". He then said that mother refuses to keep him informed.

[110] However that assertion directly conflicts with his affidavit evidence in chief where he cites numerous instances of mother doing just that, keeping him informed about the children.

[111] Si.. receives therapy for her autism from "Beyond the Door Behaviour Associates" ("BTD"). BTD helps children living with neuro-developmental disorders (including Autism Spectrum Disorder). The facility employs a number of different therapeutic approaches, including something called Intensive Behaviour Intervention, which is Si..'s primary therapeutic intervention.

[112] The mother arranged for Si.. to begin her therapies at BTD in December 2015. All of the BTD contact information was given by BTD to both parents. Si..'s lead therapist is a Ms. Fountain. Ms. Fountain prefers to have both parents involved in a child's therapy.

[113] The mother has actively encouraged the father to contact Ms. Fountain directly so that he can become proactively involved in Si..'s therapies. Mother says that it would be far more helpful and beneficial for Si.. were father to do this, so that he could become an active partner in dealing with Si..'s needs and her therapies.

[114] Mother says that she would very much appreciate any help father could provide because, as things presently stand:

Taking care of two children, one of which has special needs, is not an easy feat [for mother].

[115] Mother says she is exhausted having to constantly reply to the father's inquiries and be the one who has the responsibility of updating him, when the better option is for him to involve himself directly. In that way, both parents would always be on the same page.

[116] She says that with all of her responsibilities, she simply doesn't have time to sit on the computer and give constant updates to the father, particularly when he is perfectly capable of obtaining this information himself.

[117] This is what the father says about his lack of involvement, particularly when referring to Si.. and her special needs.

[118] First, he says that mother has never permitted him to get involved. However, he admits that he had all of the BTD contact information and he knew that he could become involved should he wish to do so.

[119] What efforts did he make to actively involve himself? He testified that he emailed BTD – once. He says that BTD did not respond to his email.

[120] He says that he telephoned BTD – once. When he called, he says that there was no answer.

[121] The foregoing represents the sum total of what the father says were his efforts to contact the place where his daughter was receiving very important therapy, the place that provided contact information to both parents, the place that encouraged both parents to be actively involved in the therapeutic process.

[122] Between December 2015 when Si.. began at BTD, and the date of this hearing – 15 months - this was what the father did in an effort to involve himself in the important therapies that were being offered to Si..

[123] Mother actively and repeatedly encouraged father to contact BTD and to become engaged. And yet despite this, father made comments at the trial, such as:

• "Why am I being blocked from therapy?";
• I am "unable to participate in or obtain updates about S..'s therapy";
• Mother has "strategically stopped me from getting information";
• "she is to blame for making me go out and get the information myself";
• "she has not provided me with the opportunity to obtain this information";
• "she has chosen to stop me"; and
• "she has precluded me from speaking to and obtaining information from S..'s therapist".

[124] None of these comments make any sense in the face of the minimal-to-non-existent efforts father made to actually involve himself with Si..'s therapies at BTD.

[125] There simply is no credible evidence to support father's highly critical and condemnatory allegations about the mother.

[126] When he was asked why his efforts to contact BTD were so sparse, why he didn't become more proactive, he said "I don't want to bother them".

[127] He was asked about Ar..'s school, specifically, which school she attends and who her teachers are. He replied that he doesn't know.

[128] Given that father has legally been the joint custodial parent since the date of the Order, there is no credible reason why he could not have taken steps to become aware of the name of the school which his daughter attends.

[129] BTD has made it clear that given Si..'s special needs, it is important that there be consistency of parenting in the households of the two parents.

[130] One of the concerns that mother had long ago raised, and her reason for initially insisting on supervised access in her own home, was to provide a measure of stability and consistency for Si..

[131] Father says that his own home would be appropriate for unsupervised access, even though he is unfamiliar with the BTD recommendations, and has never attended BTD to participate in S..'s therapies, or even communicated with BTD.

[132] How does he know that his own home would be appropriate without this information? Easy, he says; he, on his own, is capable of judging his daughter's needs.

[133] Father, by a combination of his own inaction and his hostility toward the mother, has allowed the parental responsibilities to evolve to the point where mother has become the de facto custodial parent.

[134] All of the foregoing leads the court to conclude that there has been a material change in circumstances.

[135] Furthermore, none of these changes could reasonably have been foreseen at the time of the consent Order, particularly when that Order was made without any evidentiary hearing.

c. Do These Material Changes Require a Change in Custody?

[136] Quite simply, the situation has so profoundly changed that joint custody is no longer realistic or workable.

[137] The mother should not have to subject herself to the kind of harassing behaviour that has been inflicted on her by the father.

[138] Nor should the mother have to subject herself to the kinds of threats that the father is making, by "promising" to complain again to the society, and by pursuing whatever steps he might be inclined to take in order to force the mother and the children to undergo drug testing.

[139] The father has demonstrated by his own de facto withdrawal from the joint custody regime, that he is perfectly content to allow the mother to make the major decisions for the children – where Si.. will attend therapy, how those therapies will be implemented and reinforced in the home and where Ar.. will attend school.

[140] Father has allowed all of this to happen.

[141] Mother is the person who has chosen to roll up her sleeves and become the primary caregiver for these two young children. She is the parent who has taken it upon herself to pursue and obtain therapies for Si.. and to learn how best to implement those therapies in her own home.

[142] Mother is the parent who looks after the needs of the two children virtually 100% of the time.

[143] Mother is the parent who is better positioned to meet the needs and the best interests of both children.

[144] Mother is now entitled to a court order which formally recognizes the children's present reality.

Conclusion

[145] The conflict between the parents has risen to an unacceptable level. The court wishes to promote an active, loving and nurturing relationship between the father and the children. However, that must be done in a manner which either eliminates or at least minimizes the opportunities for conflict.

[146] For those reasons, and for all the reasons discussed herein, I am varying the joint custody order to provide for sole custody to mother.

[147] However, before the mother makes major decisions for the children she shall seek input from the father. In the event the parties are unable to agree, the mother shall make the final decision. All consultations will be conducted electronically, and they will proceed in the following way:

1. Mother will send her proposed decision to the father, as well as her brief rationale for that proposed decision.
2. Thereafter, within 14 days, the father will respond, failing which mother is at liberty to immediately implement her proposed decision.
3. In the event the father does respond, disagreeing with the mother's proposal, the mother shall be at liberty to either accept the father's proposal, or she shall reject that proposal, in which case she will have the final decision-making authority.
4. In either event, mother shall respond to father's proposal within 14 days.

[148] Mother is at liberty to make non-major, day-to-day-type decisions for the children without consulting the father. However, in order to ensure a consistency of parenting, the mother shall advise father electronically about parenting routines for the children, so that at such time as the father is having unsupervised access with the children, he will ensure that he is able to substantially adhere to those routines.

[149] The father's access to the children shall be in accordance with the operative portions of paragraphs 58 to 64 of these reasons.

[150] The child support order shall be in accordance with operative portions of paragraphs 32 and 33 of these reasons.

[151] It would appear that success has been somewhat divided. That said, if either party wishes to seek costs, that party shall file submissions within 21 days, not to exceed two pages, apart from any Bill of Costs or other attachments. The responding party shall file his or her costs submissions within 14 days thereafter, with the same restrictions.

[152] I thank both counsel for the organized and cooperative way in which they presented their respective cases.

Justice Robert J. Spence

March 23, 2017