Court File and Parties

Court File No.: Toronto DFO-14-12100 Date: 2017-09-06 Ontario Court of Justice

Between:

Michael Andrew Roy-Bevington Applicant

— AND —

Megan Ball Rigden Respondent

Before: Justice Alex Finlayson

Heard on: August 31, 2017

Reasons for Judgment released on: September 6, 2017

Counsel:

• Sheila MacKinnon, for the Applicant
• Christine Vanderschoot, for the Respondent

Reasons for Judgment

Alex Finlayson J.:

Nature of this Motion

[1] This motion concerns the parties' child, Kieran, born September 28, 2014 (almost 3 years old), who was diagnosed with Autism Spectrum Disorder, Severity Level 2, in June of 2017.

[2] This is my ruling respecting the Applicant father's motion dated August 7, 2017, located at Continuing Record, Volume 2, Tab 8. The father asks that the Court order:

(a) that there be temporary joint decision making respecting Kieran;

(b) that the mother be directed to cause Kieran's birth to be registered to include his particulars as Kieran's father;

(c) that in so doing, that Kieran's name be changed to "Kieran Sloan Rigden Roy";

(d) various expanded access terms; and

(e) certain financial terms respecting child support.

[3] There are already two temporary orders in place governing the issues raised by the father. The first is the temporary consent order of Cohen J. dated January 26, 2016, which awarded the mother temporary sole custody. The second is the temporary "without prejudice order" of Scully J. dated December 6, 2016 that provides, among other things, the father will have limited access with Kieran in Windsor (where the mother resides) and in Toronto (where the father resides) on alternating weekends, and it makes provision for Kieran's support.

[4] The mother did not file a cross-motion. However, she opposed portions of the father's motion in her affidavit materials. In oral argument, the mother argued that the father's motion for expanded access be dismissed pending feedback from a 3rd party professional, such as a psychologist, custody and access assessor or the OCL, but she also submitted that I ought to change the existing temporary access order in a different way, such that all of the father's access would take place in Windsor. She both argued that I ought not change the order, but that I also order terms that are more restrictive to the father. She agreed to the father's request that the child's birth registration be amended to include his particulars as the father and that the child's name should be changed, but she argued that her name should instead be "Kieran Sloan Roy Rigden".

[5] As there are prior temporary orders in place that already govern the parties, I must consider what threshold is required before I can order the relief sought by either party and whether that threshold has been met. If the threshold is met, I must then apply the statutory criteria in s. 24(2) of the Children's Law Reform Act. In deciding this motion, I am also mindful that I am dealing with a child who has special needs and this must be taken into account.

[6] Regarding the name and birth registration, I told both counsel I had a number of questions about my jurisdiction in connection with these requests.

Preliminary Issues

[7] At the outset of submissions, counsel for the mother sought leave to file a letter from Dr. Timothy Baker dated August 29, 2017. She sought to rely on this letter for two purposes:

(a) to revive a request that this matter be adjourned for almost 3 months, to mid-November, 2017, to allow the mother to obtain expert evidence, which Scully J. had previously dismissed on her 14B motion; and

(b) to request that Dr. Baker be appointed to do a custody and access assessment pursuant to s. 30 of the CLRA.

[8] Counsel for the father objected to the letter being filed, because she wished to cross-examine Dr. Baker. The father also resisted the adjournment and opposed the request that I appoint Dr. Baker as a s. 30 assessor for a number of reasons. First, the mother did not give the father notice of these requests. Second, the father cannot afford an assessment. Third, there was no evidence that Dr. Baker consented to act as a custody and access assessor. And fourth, the mother had already retained Dr. Baker for another purpose.

[9] Despite the objection to my receiving Dr. Baker's letter, in submissions, the father's counsel conceded that I could receive the letter in the absence of cross-examination, subject to her making submissions about its weight. Consequently I accepted Dr. Baker's letter of August 29, 2017 and his curriculum vitae and made these Exhibits 1 and 2 to the motion. I relied on these documents solely for the purposes of determining whether to grant an adjournment and whether to appoint Dr. Baker as a custody and access assessor.

[10] After hearing argument about the adjournment and the assessment, I took a break to prepare a typed Endorsement in which I dismissed both requests. I invited the parties to make submissions about whether I should request the involvement of the Office of the Children's Lawyer. Before argument about this and the issues raised in the motion, both counsel advised me that their clients were prepared to consent to a referral to the Children's Lawyer, and so I made an order accordingly on consent.

Background

[11] The Applicant father is Michael Andrew Roy-Bevington. He is 35 years old. The Respondent mother is Megan Ball Rigden, also 35. The parties' relationship lasted about 2 months from December 2013 to February 21, 2014, during which the mother became pregnant with Kieran.

[12] The mother is married to Craig Rigden. The mother describes her relationship with the Applicant father as a "brief relationship" during a "brief separation" from Mr. Rigden. She reconciled with her husband, Mr. Rigden, on March 20, 2014.

[13] Kieran resides primarily with the mother and Mr. Rigden in Windsor. The father, and the mother and Mr. Rigden, all used to reside in Toronto, but in mid-October, 2015, the mother and Mr. Rigden moved to Windsor. Mr. Rigden works for the LCBO and applied for a job transfer to Windsor. The move was the subject of a previous motion that Cohen J. heard.

[14] On June 15, 2017, Kieran underwent an assessment at the Summit Centre for Pre-School Children with Autism. In the report of the clinical director, psychologist Dr. Marcia Gragg, dated June 22, 2017, Dr. Gragg diagnosed Kieran with Autism Spectrum Disorder, Severity Level 2.

[15] The father commenced this Application on October 24, 2014. When the mother filed her Answer, she referred to herself using her maiden name "Ball". She is later referred to as "Ball Rigden" in subsequent court documents.

[16] Neither party filed the child's Statement of Live Birth in the Continuing Record. As both the child's name and birth registration are issues before me, during argument, I asked whether either party had it in their possession. The mother had a Certified Copy and provided it to me. On consent, I made the Statement of Live Birth Exhibit "3".

[17] The Statement of Live Birth reveals that the mother certified the birth 4 days after Kieran's birth. She identified herself using her current legal surname as "Ball", although she did indicate in a different box that her other legal surname is "Rigden". The mother did not acknowledge the father on the Statement of Live Birth. She is the only identified parent on the form. She registered the birth naming the child, "Kieran Sloan Rigden".

[18] The Statement of Live Birth presented to me on August 31, 2017 contains handwriting in "Section C – Father's/Other Parent's Information" identifying the father as "Michael Andrew Roy" and "Roy-Bevington", born in "Toronto" "Ontario". There is no sworn evidence as to who wrote these words onto the Certified Copy of the Statement of Live Birth or when, but I was told by mother's counsel that the mother did this, and that she is prepared to take steps to cause the child's birth registration to be amended to add the father's particulars. This had not yet been done at the time of the motion.

The Parties' Financial Circumstances

[19] The father is employed as a carpenter apprentice. He deposes that he does not have a "full drivers license" and he is not able to afford a car or car insurance, although he may be able to do so after the litigation is at an end. He gives cash to his mother for rent, and he pays for groceries and the TTC. He owes his family approximately $50,000 for legal fees and to fund the cost of travel to Windsor to see Kieran. He is working on a part time basis for Maple Leaf Sports and Entertainment (MLSE) doing carpentry work and he does other work through his union. He has not yet worked enough hours to enjoy benefits. He also earns a modest amount of cash doing odd jobs.

[20] It is not contested that the father's income is modest. Despite that, in his Notice of Motion, the father volunteered to increase his child support to $250 per month commencing September 1, 2017, based on imputed income of $30,000. This request is not opposed and so I will make this Order.

[21] The mother is not employed. She used to live in Toronto, but on October 17, 2015, in the middle of these proceedings, she relocated to Windsor. I was told that Mr. Rigden will earn about $40,000 this year at the LCBO. The transfer did not result in a corresponding increase in salary; rather the mother and Mr. Rigden moved to Windsor to lower their living expenses. The mother and Mr. Rigden have another child, William, who is younger than Kieran. William is Kieran's half-sibling.

[22] The mother moved before the Court could determine the issue of whether to permit the move on an interim basis. This move and the consequent distance between the parties have made the task of crafting a parenting plan more difficult.

Relationship History

[23] The mother alleges that at the time of her pregnancy, the father wanted her to have an abortion, that there was domestic violence by the father during their short relationship, that the father drank alcohol to excess, and that the father had been prescribed anti-depressants, but refused to take his medication. The father responded to each of these allegations in detail. In oral argument on this motion, the father also sought to challenge the mother's credibility on these points.

[24] The evidence before me on these point is very conflicting. I need not make a finding about whether there was domestic violence at this stage of the proceeding or regarding the other matters raised by the mother. In this current motion, the mother did not argue that the child was at risk in the father's care due to these past concerns. Rather, this history was raised as being relevant to how the parties will communicate going forward given Kieran's autism diagnosis and specifically whether the mother is willing to have in person meetings with the father about Kieran's autism.

[25] Without making any findings about past conduct, I am prepared accept the mother's evidence at this stage that she is uncomfortable meeting with the father alone. But I also agree with the father's position that given the child's special needs, email communication alone, which has not been working, is insufficient. There are allegations by the mother that the maternal grandmother is the author of the father's email correspondence, and by the father that the mother is refusing to share information with him. It is important that the parties begin talking and that they learn how to communicate with each other in an effective, child focused manner. Consequently, I asked each party on a break to tell me the names of support people who could accompany each of them to in person meetings, which I intend to order. Each counsel provided me with 4 names after the break, and I asked whether there were any objections to the names on each person's list.

Prior Proceedings

[26] The prior proceedings are as follows:

(a) This case commenced by way of the father's Application on October 24, 2014;

(b) On January 16, 2015, Scully J. made a temporary without prejudice order on consent that the father have supervised access 90 minutes each week on the weekends;

(c) On July 8, 2015, Scully J. made a temporary without prejudice child support order requiring the father to pay $197 per month for Kieran based on income of $24,615 commencing June 1, 2015. Scully J. also made an order scheduling a motion;

(d) On August 31, 2015, Scully J. made a further temporary without prejudice order respecting access on consent. He granted the father access to Kieran for 4 hours from 11:00 am to 3:00 pm for two Sundays provided the father's mother or brother were present, and then for 5 hours, from 11:00 am until 4:00 pm on Sundays thereafter on the same conditions. Scully J. also ordered supervised exchanges at APCO;

(e) On October 27, 2015, the father served a motion to compel the mother to return the child to Toronto, for overnight access, for a "declaration" that the Applicant is the father of Kieran and directing the birth registration be amended and for an order changing Kieran's surname name to "Ball Roy" among other relief sought. The mother launched a cross-motion returnable November 3, 2015, to require the father to resume having visits on a supervised basis, but now in Windsor given her move, and to transfer the file to Windsor. In her affidavit sworn November 2, 2015, she informed the Court that she had already moved to Windsor on October 17, 2015;

(f) On November 3, 2015, on a temporary without prejudice basis, Scully J. continued the August 31, 2015 access order, but he directed the father to exercise access in Windsor in week one and that the mother bring Kieran to Toronto for access in week two, and so on. Scully J. also suspended the father's child support given the cost of travel;

(g) On December 11, 2015, the mother amended her Notice of Motion to delete the requirement that the father's access be supervised in Windsor, but asked for an order that he complete a parenting course. Cohen J. heard the motion and reserved;

(h) The mother's motion was heard on December 21, 2015. On January 20, 2016, Cohen J. sent a letter asking the parties to make submissions about whether the court should make a temporary custody order and about certain case law they had filed;

(i) Following Cohen J.'s letter, the parties reached a consent about temporary custody. On January 26, 2016, Cohen J. made an order for temporary sole custody to the mother on consent, and the parties re-attended before Cohen J. on February 2, 2017 to make further submissions about other matters;

(j) On February 3, 2016, Cohen J. released her reasons, allowed the mother to remain in Windsor with the child, dismissed the father's motion and ordered that the father would have access on alternating weekends in Windsor for 5 hours on Saturday and 5 hours on Sunday. Cohen J. also continued Scully J.'s order of November 3, 2015 suspending child support pending further order given that the father would be travelling to facilitate access. I was told that although claimed, the relief in connection with the child's name and birth registration was not argued before Cohen J.;

(k) On June 14, 2016, Cohen J. made an order that there be no costs of the motions;

(l) On December 6, 2016, Scully J. made a further temporary without prejudice consent order. The order provides that Kieran is with the father on alternating weekends, in Toronto during one weekend from Saturday at 2 pm until Sunday at 11 am commencing February 11, 2017, with the mother being responsible for transportation to Toronto, and then in Windsor for a Sunday day visit, two weeks later, until such time as he can afford to stay overnight there. Furthermore, the father's child support resumed on a temporary without prejudice basis in the amount of $184 per month based on imputed income of $23,000, and the parties agreed to share s. 7 expenses equally, provided there is consent in advance. Scully J. made various disclosure orders on consent too.

The Consent seems to suggest that the parties consented to a finding that they are the child's parents, yet they also consented to an order for DNA testing. This was confusing. In oral argument on this motion, Ms. Vanderschoot told me that the parties filled out that section of the consent concerning parentage to indicate that there was a dispute about the child's name, but parentage had not yet been agreed to at this point;

(m) Soon after this consent was entered into, on January 12, 2017, the mother launched a 14B motion and sought to resile from her agreement that the weekend access in Toronto commence as ordered, and she once again asked for the transfer of this matter to the Court in Windsor. On January 24, 2017, Scully J. directed that the 14B proceed by motion with oral argument on March 7, 2017;

(n) The mother later abandoned her motion and so the March 7, 2017 date did not proceed;

(o) There was a case conference before Scully J. on April 26, 2017; and

(p) As set out above, on August 15, 2017, Scully J. set this motion before me for August 31, 2017.

Law and Analysis

The Test to Vary a Temporary vs. a Temporary "Without Prejudice" Order

[27] Both parents asked me to make fresh orders respecting the parenting issues. As set out above, the mother did not file a Cross-Motion, but she asked me to change the existing status quo after I dismissed the adjournment request. In the absence of a Cross-Motion, I nevertheless gave the mother a full opportunity to make submissions about whether I should do this and what order I should make. Both counsel argued that I should make different orders than the temporary and temporary "without prejudice" orders currently in place, based on the "best interests in the child".

[28] In my view, there is a threshold issue that must first be addressed. The mother already has temporary custody of Kieran, whereas the orders for father's access are temporary "without prejudice" orders. To vary the temporary custody order, I must find that there has been a material change in circumstances that affects or is likely to affect the best interests of the child in accordance with s. 29 of the Children's Law Reform Act, R.S.O. 1990, c. C. 12, as amended. The "without prejudice" access order by contrast, is subject to a different legal consideration.

[29] Justice Ellen Murray addressed this in Copeland v. Perreault, 2007 ONCJ 217 at ¶ 42-44. When an order is "without prejudice", I do not have to first find that a material change in circumstances has occurred before I can make a different order. As Murray J. held, the proper approach is not to bring a motion to vary the temporary order, but rather the matter should be brought back on for a determination on its merits.

[30] In this case, although I could have decided certain issues based on a more stringent standard than others, the distinction is somewhat artificial. For reasons that follow, I find that each of Kieran's autism diagnosis in June of 2017, the evidence that I have of Kieran's current needs, and the way the parents have behaved in relation to the diagnosis amounts to material changes since Cohen J.'s temporary custody order dated January 26, 2016 and Scully J.'s temporary "without prejudice" access order of December 6, 2016. Although I need not find a material change since the latter order, I find that I could decide the issue on this more stringent material change test.

[31] That said, as E. Murray J. held at ¶ 45 of Copeland v. Perreault, just because a court can make an order with different terms doesn't mean that it should. In general, multiple pre-trial motions concerning custody and access are to be discouraged, particularly where there is a status quo in place. Thus, a court ought not change a status quo pending trial unless there are compelling circumstances to do so. For reasons that follow, I also find that there are compelling circumstances that require me to intervene at this stage of the case certainly respecting access and respecting certain incidents of custody and access.

[32] As I have found the necessary threshold tests to have been met, my decision is guided by the "best interests of the child test" in s. 24 of the Children's Law Reform Act and again, I am guided by the fact that I am dealing with a child with special needs.

Access

The Challenges Relating to Access in Windsor

[33] The evidence before me from both sides reveals that the existing schedule is no longer in Kieran's best interests.

[34] I begin with the notion that it is important for Kieran to enjoy a meaningful relationship with her father and his family unit, just as it is important that she have a solid relationship with her mother and the mother's family unit.

[35] Since November of 2015, following the mother's move to Windsor, the father has regularly travelled to visit Kieran there each month. The maternal grandmother has accompanied the father on many of the visits to Windsor. Initially the father had day visits, and then commencing December 2016, the father has had a monthly visit with Kieran in Windsor for 4 ½ hours, and a monthly overnight with Kieran in Toronto that lasts less than 24 hours. The December 6, 2016 order is not working.

[36] The father is not able to exercise fully the limited time he has with Kieran under this order. Although the December 6, 2016 order allows for an overnight in Windsor each month in addition to a separate overnight in Toronto each month, the father cannot afford to stay over in a hotel in Windsor, so he sees Kieran for only a few hours each month there instead. It takes the father 17 hours to travel back and forth to Windsor on the train for the Sunday visits, which he has diligently done. He leaves home at 6:00 am and returns home by about 10:30 or 11:00 pm. He sees Kieran from 12:00 pm to 4:30 pm. I find this compelling.

[37] When the weather is pleasant, the father takes Kieran for walks in the park in Windsor. But when there is inclement weather, he has to take her to the mall. He sometimes goes to the library in the winter, but he cannot do this in the summer as the library closes on Sundays.

[38] The paternal grandmother, Mary Roy, sometimes is present and Kieran gets to enjoy a part of her paternal extended family. By contrast, when the visits happen in Toronto, Kieran also has visits with her aunt and uncle, and cousin.

[39] Even if the monthly overnight in Windsor, or more overnights in Windsor each month, were affordable, I am not persuaded that such an arrangement is in Kieran's best interests given her changed needs.

It is Preferable that Kieran's Access with her Father Take Place in Toronto

[40] Kieran's visits in Toronto with her father are in a more natural setting, and the evidence is that they are going well. The evidence is:

(a) The father loves Kieran;

(b) His visits with Kieran are going extremely well;

(c) Kieran is accustomed to his apartment in Toronto. She has a place for her toys there, she is patient, persistent and focused when playing. She colours and plays;

(d) Father and daughter have a deep and loving bond with each other. Kieran is happy when she greets her father at exchanges, and she doesn't have anxiety at transfers;

(e) Kieran has strong bonds with her paternal grandmother, her uncle David, her aunt (David's wife) and her cousin Sophie. They all engage with Kieran in a positive way. Kieran enjoys playing guitar and iPad games with Sophie;

(f) Kieran helps the father prepare meals and the grandmother helps out at meal times;

(g) The maternal grandmother lives in the same building, and is often nearby during visits. The father, the maternal grandmother and Kieran share meals together when Kieran visits her dad;

(h) Father and daughter enjoy having breakfast with grandmother on Sundays, although they would like more time. Sunday mornings are rushed due to travel that must be done under the existing schedule;

(i) Kieran falls asleep without fuss and sleeps throughout the night when she is at the father's apartment;

(j) The father has not witnessed temper tantrums in his home;

(k) The father is tuned into Kieran's feelings. For example, if she becomes overwhelmed (for example in a store), he says he moves her to a different location;

(l) The father is very concerned that the mother has excluded him from Kieran's life and he wishes to have a greater role; and

(m) The father did not get to have an extended visit with Kieran this past summer and he wishes to have some extended holiday time with her this year at Christmas.

[41] In her affidavit, the paternal grandmother has adopted many of the statements the father has made. She tells the Court that when the visits are in Windsor, despite the long travel day, she tries to make the best of it.

[42] In my view, based on this positive evidence, the child's overnights in Toronto are too limited. In Toronto, Kieran is able to visit her father in an environment that is comfortable and predictable for the child.

The Evidence Concerning Kieran's Autism Spectrum Disorder

[43] Before Kieran underwent the autism assessment, the mother first had Kieran undergo an "Initial Child and Family Assessment" at "Children First" on May 30, 2017. A physician made the referral on March 17, 2017. The father was not invited to participate in this assessment or to provide his input. The father learned about this report and what it reveals about Kieran's needs when it was provided to him, after the fact. He also learned for the first time when reading the report that the mother is once again moving, this time within Windsor. I was told by the mother that this move is happening on either October 1 or October 5, 2017.

[44] The physician made the referral for the autism assessment on March 23, 2017. The mother did not share this until after the fact of this assessment either. According to the father's affidavit sworn August 7, 2017, the mother told him about the diagnosis orally in mid-June, 2017, when she requested that he contribute $1,200 per month towards various therapies. Based on the material before me, neither family can afford the cost of private autism therapies, and in fact the evidence reveals that Kieran is on the wait list for government funding. Based on the manner in which he was told about the diagnosis, the father deposed that he was "surprised" to learn about the diagnosis. In part on this basis, the mother invited me to find that the father was somewhat in denial of the child's autism. I am not prepared to do so.

[45] The mother later supplied the father with the report of Dr. Gragg dated June 22, 2017 around Canada Day, which is attached as an exhibit to his affidavit of August 7, 2017. As soon as he was able to after he received the report, the father and his mother participated in a telephone call with Dr. Gragg to discuss the report and to learn about the diagnosis. I have read and I rely on the report for the purposes of this motion.

[46] Of concern to the father, both the Children's First Report and the report of Dr. Gragg refer to Mr. Rigden as being Kieran's parent or father, although there is also mention in both reports of an unnamed biological father in Toronto. The father is not mentioned positively in the references in these reports. Other than what I was able to read in the reports, the mother provided no evidence regarding what she told third parties about the father or his involvement in Kieran's life.

[47] The process of diagnosing autism includes both subjective parental reports and objective testing. The questionnaires and objective tests upon which Dr. Gragg relied were not supplied by the mother as part of her motion materials. In her email of July 9, 2017 to the father, the mother told the father that the diagnostic process did not require either parents' participation. In making this statement, she referred to the ADOS test and provided the father with a Wikipedia link about it. Her email fails to mention the other aspects of the assessment process.

[48] Based on subjective reporting, the report of Dr. Gragg dated June 22, 2017 identifies the child's strengths. The report states that Kieran likes investigating things, she loves being outside, she loves fire trucks, and she loves dancing and music. While she has made a lot of strides in the last few months, the subjective reports also state that she has melt downs when presented with choices, she gets upset when bathed or when water is applied to her face (ie. when washing her face), she does not engage with men, and gets upset by certain noises. Mother went on to report that the father was "abusive" and that her pregnancy was "tumultuous".

[49] The report lists a number of concerns about Kieran's communication skills, her reciprocal social interaction skills and her repetitive and restricted behaviours. Her adaptive behaviour was in the low range overall. There are also some strengths noted.

[50] The subjective statements continue to report certain peculiarities about food and drink, and some developmental regression. It is important to note that no concerns about sleep were reported, nor were concerns about Kieran's travel to Toronto identified. In the questionnaire that accompanied the Children First "Initial Child and Family Assessment", no concerns were raised about sleep either, although the mother and Mr. Rigden did raise some concerns that "Kieran does not transition well during visits and seems to act differently after visits".

[51] Dr. Gragg made a number of recommendations, including:

(a) that Kieran requires 25 hours per week of Intensive Behavioural Intervention, for which Kieran was placed on a waitlist;

(b) the parents should attend Applied Behaviour Analysis (ABA) workshops and an Intensive Parent Training program. I will address this in more detail below in my reasons;

(c) that Kieran should undergo a psychological assessment;

(d) that Kieran receive speech and language therapy, which Dr. Gragg identified as "crucial" for Kieran; and

(e) that the parents continue to work with a physician for Kieran as needed.

[52] In her affidavit of August 22, 2017 sworn two months later, the mother says the following about Kieran:

(a) she often screams, flaps her hands and runs in circles when confronted with loud noises;

(b) train rides are unpredictable and sometimes dangerous;

(c) lights are brighter to Kieran;

(d) she has extreme sensitivity to certain fabric;

(e) she screams a lot to show emotion;

(f) she gets upset when restrained;

(g) she is not adequately rested after visits with the father and so her upset gets exacerbated; and

(h) she retreats when it is time to travel, she resists her normal routines when she returns home after visits and she has irregular bowel movements.

[53] Both Mr. Rigden and the maternal grandmother filed affidavit material describing meltdowns that they attribute to travel.

[54] The mother further states that because of the existing schedule, Kieran misses days in the month where her therapy protocols are not followed. Neither the mother, nor Mr. Rigden nor the maternal grandmother filed any evidence as to the child's therapy schedule, details about those protocols, or anything else about routines in the mother's household that the visits with the father are purportedly interrupting. When I asked during oral argument about the therapy schedule, I was told that there is no current therapy schedule yet in place. I specifically asked whether there was any therapy on weekends and was told no.

[55] During argument, I pressed for information about any current or upcoming therapies, or scheduling issues. Mr. Rigden, who was in the body of the Court, asked to speak, and told me that there is an upcoming ABA course in which the parents can participate, after which Kieran will proceed to IBI. The timing of this ABA course is unclear to me but it was clear to me that the father was unaware of this course, whereas at a minimum Mr. Rigden is aware of it. This ABA course appears to be the precise ABA course that is one of the pivotal recommendations made by Dr. Gragg. As such, I specifically asked if the father could attend and no one objected.

[56] The father and his mother have begun the process of learning about autism. The paternal grandmother has telephoned various resources on her and the father's behalf and they are now taking in the middle of taking an online ABA course offered through the Geneva Centre. These are good first steps, but it is important in my view, that the father get involved in Kieran's actual treatment more fully. That said, the mother provided very little specific evidence on this motion as to the next steps. I intend to make orders about this.

[57] The mother argues that the father is in denial to some extent about the child's diagnosis. She is critical of the father for having delegated the task of learning about autism to his mother and she blames him for failing to tell her what he is doing to learn about autism. I am not prepared to make findings of this nature. While the evidence does reveal that the paternal grandmother as opposed to the father seems to have taken the lead in learning about autism and available resources, she is doing so to allow the father to work as much as possible to maximize his income. I note that she is also an important person in Kieran's life and it is responsible of her to be educating herself and the father.

[58] Moreover, the father says that he does not challenge the diagnosis and wishes to support Kieran in any way he can. I am prepared to accept his word about this in these early days following Kieran's autism diagnosis. I also accept the paternal grandmother's statement in her affidavit of August 7, 2017 that she, the Applicant father, her other son David and David's wife have all reviewed the available reports, that there have been many family discussions and the family is committed to learning about autism and to working with Kieran to develop her skills. If the evidence unfolds differently as the case progresses, then the Court may very well make different orders than those I propose to make today. But in my view, what would be the most helpful at this time is if there is a free flow of information between Kieran's actual service providers and both parents, and between households, so that both parents are fully aware what is happening respecting Kieran's autism.

[59] At this stage, both parents, and Kieran, are fortunate to have the extended family support they have. This includes both grandmothers. The maternal grandmother is doing the driving to facilitate access, and she should be commended for doing this.

The Allegation that the Mother is Engaging in "Alienating" Behaviours

[60] Although she says that she supports the father's relationship with Kieran, the father argues that the mother is engaging in "alienating behaviours" and is attempting to try to exclude him from Kieran's life. He cites the following examples:

(a) He says that he was involved in the mother's pre-natal care until she reconciled with her husband, after which she cut off contact;

(b) He says that the mother made allegations of domestic violence, which are contradicted by emails and other written documents;

(c) He says that the mother did not acknowledge him on the child's birth registration, or include his name as part of the child's name;

(d) He says that the mother has held Mr. Rigden out to be the child's father to third parties;

(e) He says that the mother surreptitiously moved to Windsor before the relocation was determined by the Court;

(f) He says that the mother has not been cooperative regarding expanding access;

(g) He says that after she consented to the December 6, 2016 order, the mother attempted to resile from it by way of 14B Motion, which she later abandoned when the Court directed oral argument; and

(h) He says that the mother has withheld information about the child's health needs.

[61] Given the conflict between the parties, it is important that I make orders that allow for the father's participation in the management of Kieran's health along with the mother.

Access Schedule and Other Terms

[62] Based on the record before me, pending input from the Office of the Children's Lawyer, I intend to make a number of temporary orders that take into account the following factors.

[63] The uncontested evidence reveals that the child is bonded with the father and his extended family, she is familiar with her surroundings in the father's home, and the visits are a positive experience for her. It is in Kieran's best interests that she have increased time with her father in a setting in which she is comfortable. I am not prepared to suspend the visits between Kieran and her father in Toronto, which the mother asked me to do.

[64] By the same token, I accept the mother's evidence that Kieran experiences difficulty with travel. The existing schedule requires the child to be in the car for multiple hours in a less than 24 hour period. This is no longer appropriate given Kieran's special needs. In my view, the solution is not to remove Kieran's visits with the father from her familiar surroundings in Toronto as the mother asks that I do, but rather it is to increase the time Kieran is in Toronto with her father, which will also increase the time in between Kieran having to make the trip up from Windsor, and then back again. I also intend to make orders so that both parents can learn about autism and employ consistent strategies in both households.

[65] I also accept that the evidence that the child experiences difficulty with noises and sounds. In his submissions, the father was solution oriented and suggested that the child wear sunglasses and noise cancelling earphones while traveling. The mother's solution was that the trips to Toronto be suspended and that the father have access only in Windsor.

[66] I am not prepared to order the mother's proposal. Again, this proposal would remove Kieran from her familiar surroundings in Toronto and would require her to visit her father in the community in Windsor, or in possibly different hotels, with which she is not familiar, should the father eventually be able to afford to stay overnight. The uncontested evidence is that the father has not been able to exercise overnights in Windsor to date. Even if I did not have the evidence of the child's special needs, I would not have been inclined to make an order premised on overnights in Windsor that would very likely not happen for financial reasons. This plan, if ordered, would be a recipe for decreasing and inconsistent contact with the father, which in my view, is contraindicated.

[67] Nor do I accept the mother's submission that I should suspend child support and this would allow the father to afford travel and overnights in Windsor. As I have set out in these reasons, I do not view access in Windsor as optimal. Regardless, the child support the father pays is insufficient to cover all of the father's travel costs for one visit per month, let alone two were the mother's plan to prevail. Instead, it is preferable to increase the father's child support has he has proposed, which will put more support dollars into the mother's household.

[68] Consequently I intend to make an order terminating the short monthly visit in Windsor, but increasing the Toronto visits. Given the amount of travel time and the cost involved, this short visit no longer makes sense given Kieran's needs. Rather, I intend to increase the number of weekends the child spends with her father in Toronto, but I am also mindful of the child's difficulty with travel, the limited resources in the mother's household too, and the burden that the maternal grandmother has assumed respecting driving. So I am not prepared to order alternating weekends in Toronto either. In my view, a compromise between the two positions is reasonable.

[69] In ordering the schedule that I am ordering, I have also taken into account the mother's travel costs. They are different from the father's. Although she is not under an obligation to do this, the maternal grandmother has been doing the driving between Toronto and Windsor to facilitate access. I asked, but was told that there is no evidence in the material before me that the grandmother is no longer willing to do the driving. I have no evidence about what the grandmother might do in terms of her willingness to drive pursuant to the different schedule that I am ordering which increases the number of trips to Toronto.

[70] Regardless, the December 6, 2016 order was premised on the mother traveling with Kieran by train to Toronto once per month, and so the fact of the maternal grandmother doing has saved the mother train fare. I do not view the schedule that I am imposing as creating an unreasonable hardship on the mother. I would be making the same order even if the maternal grandmother weren't doing any of the driving.

[71] The unchallenged evidence is that the maternal grandmother lives at the Yonge and Eglinton Area of Toronto and the mother has a place to stay when she comes to Toronto. Unlike the father, the mother does not incur the cost of hotels when she comes to Toronto. Although I have based this decision on a balancing of factors in an attempt to address Kieran's needs, in my view, the mother needs to accept some responsibility for the financial difficulties created by her move and so in my view, it is appropriate that she begin to bear the greater burden in this respect.

[72] I am ordering that there be complete information flow between households and between third parties involved with the child and the parents, and that there be full access by both parents to health and therapy appointments concerning Kieran. During oral argument, Ms. Vanderschoot told me that the mother would sign the necessary consents to ensure the release of health records and so I intend to make an order accordingly.

The Need for the Children's Lawyer and My Decision Respecting Access

[73] As set out above, on August 31, 2017, I appointed the Children's Lawyer and I indicated I would release reasons at a later time. I appreciate that I cannot order the Children's Lawyer to accept my referral, but it would be most helpful if the Children's Lawyer would investigate and report pursuant to s. 112 of the Courts of Justice Act. There are significant factual disputes between the parties. This Court needs objective and independent evidence about all parties involved in Kieran's life, evidence from third parties involved in the diagnosis and treatment of Kieran's autism, and ideally, observation evidence concerning Kieran's tolerance of travel between households, which would include before and after observations in both households.

[74] In Copeland v. Perreault, E. Murray J. found compelling circumstances and changed a status quo pending trial in circumstances where the access schedule did not meet the child's needs and the parental conflict was an impediment to decisions about the child being made. She also considered the following factors:

(a) The parties each filed extensive affidavits materials;

(b) There was a s. 112 report from the Office of the Children's Lawyer;

(c) There had been extensive cross-examinations; and

(d) The case was not ready for trial and would not be ready for trial for a number of months.

[75] I do not read Copeland v. Perreault as always requiring a report from a third party or cross-examinations in order for the Court to find the necessary circumstances to intervene. In this case there have been no cross-examinations and there is no third party report. I am nevertheless making temporary orders at this stage because the parties could not agree as to what arrangement should govern, and I have concerns about the impact of the existing schedule upon Kieran. I do not view leaving the current status quo in place to be a solution in the best interests of the child.

[76] All that said, I am hopeful that the Children's Lawyer will accept the referral. If it does, I leave it to the case management judge to decide if further adjustments to the schedule are necessary pending a trial or a final resolution, once/if further evidence becomes available. In order words, my order may be reviewed if appropriate.

[77] I direct counsel for the parents to send a copy of these reasons to the Children's Lawyer along with their client's intake forms. It is my hope that these reasons will assist the Children's Lawyer in its decision whether to accept the referral.

Temporary Custody, Kieran's Name and Birth Registration

[78] At ¶19 of his motion, the father has asked me to order joint decision making and related terms. This is essentially a request that I vary the temporary custody order. Although I have found that there is a material change in circumstances, in oral argument, the father indicated that he is not strenuously pursuing this relief and so I need not address the issue of joint decision making any further except in two limited respects.

[79] First, although he substantially abandoned his request to vary temporary custody, the father did ask me to make orders that the mother consult with him prior to making any decisions about Kieran's health, and I am prepared to make this order. In my view, it is pivotal that the father be fully informed and educated about Kieran's treatment and progress so that the parenting plan will work. I have authority to make this order under s. 28 of the Children's Law Reform Act and I intend to do so.

[80] Second, I was asked by both parents to direct that the child's name and birth registration be changed, but I questioned both counsel about my authority to do this. I asked a number of very specific questions that counsel did not anticipate and upon reviewing this matter further, I wish to give both counsel a full opportunity to make submissions in writing before I rule.

[81] I ask counsel to please provide submissions in writing respecting the following:

(a) What is the jurisdiction of the Ontario Court of Justice to direct that a child's name or birth registration be changed?

(b) If I lack jurisdiction to change the name, can I authorize either parent to apply pursuant to the Change of Name Act to change Kieran's name? If so, what is my jurisdiction?

(c) In submissions before me, the mother argued that Mr. Rigden is Kieran's father. Is this true in light of s. 7(1) or any other section of Part I of the Children's Law Reform Act? What is the impact of Mr. Rigden's role in Kieran's life in determining the name change issue?

(d) Where Kieran's name contains both parents' surnames, must they be in alphabetical order? Please provide authority and please specifically address whether there is a difference between the rules about a child's name that apply respecting when the birth is certified versus when a name is changed.

(e) Is a court order required respecting the birth registration? Specifically, can either parent apply administratively to the Registrar General pursuant to s. 9(6) of the Vital Statistics Act, R.S.O. 1990, c. V. 4, as amended, and s. 2(15) and (15.1) of R.R.O. 1990, Reg. 1094, as amended to add his father's particulars Kieran's birth registration? Is both parents' participation required or can the father make this application on his own? Please provide submissions as to the process to be followed, and whether this Court has any jurisdiction to make orders respecting it.

(f) I am asking that counsel please provide submissions as to the specific legal test that applies respecting these questions where I do have jurisdiction to act. Where I am required to apply a best interests test, I ask that counsel please direct me to the factors and evidence that they wish me to consider.

[82] I am directing that the parties file a factum respecting these questions, and any other relevant matter respecting my authority to deal with the name change and birth registration issues put before the Court. Their facta shall be no more than 20 pages each, plus I ask that each counsel please attach the relevant statutory sections that apply, and relevant case law.

[83] As I was told in oral argument that the mother is prepared to take steps to amend the birth registration to include the father's particulars as the child's father, if counsel can sort this out amongst themselves and deal with the Registrar General such that this is underway before I rule, then counsel need not answer any questions concerning my jurisdiction surrounding the birth registration, and they may focus on the name change issue only.

[84] Until I decide the issue, I am making a temporary without prejudice order that neither parent shall apply to change Kieran's name pursuant to the Change of Name Act, R.S.O. 1990, c. C.7, as amended. I have authority to do this pursuant to s. 28 of the Children's Law Reform Act. See the recent not yet reported decision of Justice Stanley Sherr in Hermanson v. Kiarie, Toronto Court File No.: D90073/16.

Other

[85] At the end of each party's oral submissions, I asked counsel for the father to advise which prayers of relief in his Notice of Motion were being pursued and I asked counsel for the mother to advise whether the relief sought was opposed, not opposed or agreed to. I will indicate this accordingly respecting the precise orders I am making.

Order

[86] I therefore make the following temporary orders:

(a) The mother shall consult with the father prior to making any major non-emergency health or educational decision concerning Kieran, which shall include any issue relating to the management or treatment of Kieran's autism concerning Kieran. The duty to consult shall mean that she shall provide the father with complete information about a decision that she intends to make and receive the father's input prior to making the decision;

(b) Commencing Friday, September 8, 2017, Kieran shall have access with her father in Toronto every third weekend, from Friday at 5:00pm until Sunday at 12:00 pm. The mother shall be responsible for transporting Kieran to and from Windsor for visits;

(c) The father's second and third weekends with Kieran shall be extended from Friday at 5:00 pm until Tuesday at 12:00 pm as the father did not have any summer holiday time with Kieran this year. (For clarity, the dates of these extended weekends are September 29 to October 3, 2017, and October 20 to 24, 2017). His subsequent weekends after that shall revert back to Fridays at 5:00 pm to Sundays at 12:00 pm;

(d) The father's normal weekend that commences on December 15, 2017 pursuant to this schedule shall be extended from Friday, December 15, 2017 at 5:00 pm until Friday, December 22, 2017 at 12:00 pm so that the father can have extended time with Kieran around the Christmas holiday. His subsequent weekends after that shall revert back to Fridays at 5:00 pm to Sundays at 12:00 pm;

(e) If father's weekends otherwise fall on a long weekend, then the visit shall be extended to Monday at noon;

(f) The mother shall be responsible for Kieran's transportation between Windsor and Toronto;

(g) The mother shall purchase and ensure that sunglasses and noise cancelling headphones travel with Kieran between Windsor and Toronto;

(h) The father or his mother, Mary Roy, are permitted to attend at Kieran's access exchanges to occur in Toronto;

(i) There shall be consent orders in accordance with paragraphs 3(f), 8, 10, 11, and 12 of the father's Notice of Motion dated August 7, 2017;

(j) In addition to the disclosure orders that are being made on consent that are provided for in paragraph (i) above, the mother shall sign consents directing the release of any information and documentation concerning the child to the father from any third party involved with Kieran;

(k) In addition to the disclosure orders provided for in paragraphs (i) and (j) above, the mother shall immediately provide to the father a list of all health, therapeutic and other professionals involved in Kieran's care, including their addresses and contact numbers, within 7 days;

(l) If new third parties become involved, the mother shall also provide names, addresses and contact numbers as soon as they become available;

(m) The mother shall provide the father a complete list of all currently scheduled appointments that concern Kieran, including the dates, locations and times of those appointments within 7 days. As new appointments or events get booked concerning Kieran, the mother shall advise the father as soon as she becomes aware so that the father may attend. For clarity, this includes not only appointments involving Kieran, but also appointments relating to Kieran, such as the ABA course that Mr. Rigden referred to. The intention of this paragraph is to ensure that the father is made aware of all appointments and events relating to Kieran's care so that he can attend or participate remotely if he so wishes;

(n) The father may attend all appointments concerning Kieran, including all health, developmental, therapeutic, treatment, and therapy sessions, and any parent education programs relating to Kieran's special needs. He may bring his mother if the 3rd party provider agrees. Alternatively, he may make arrangements to participate by speaker phone with his mother on the phone if he wishes;

(o) The parents shall communicate with one another about matters concerning Kieran by email. In addition, once per month, commencing in September 2017, the parents shall have an in person meeting to discuss Kieran. Their conversation shall remain civil and respectful. Each parent may have one support person present. In the mother's case, she may choose between Craig Rigden or her mother, Kathy Doherty, and in the father's case, he may choose between his mother, Mary Roy or his brother, David Roy. I am not ordering that the mother may bring Robert Stevens or Chris Seguin as I have no evidence about them, whether they know Keiran or whether they have an understanding of Kieran's needs; and

(p) There shall be a child support order and orders for disclosure in accordance with paragraphs 13-15 of the father's Notice of Motion dated August 7, 2017. To the extent necessary, this varies the temporary child order of Scully J. dated December 6, 2016.

[87] In addition, pursuant to s. 28 of the Children's Law Reform Act, I make a temporary without prejudice order that neither parent shall apply to change Kieran's name pursuant to the Change of Name Act, R.S.O. 1990, c. C.7, as amended, pending further order of this Court.

[88] Finally, the father shall serve and file his written submissions on or before Friday, September 29, 2017. The mother shall have until October 20, 2017 to serve and file her written submissions and the father may then serve and file a brief reply, limited to 5 pages by Friday, November 3, 2017. Once I rule regarding the outstanding issues, I shall direct a timetable concerning cost submissions.

Released: September 6, 2017

Signed: Justice Alex Finlayson