Court File and Parties

Ontario Court of Justice

Date: July 24, 2019

Court File No.: Brampton 1294/14

Between:

MILI ARORA Applicant

— AND —

SAHIL LUTHRA Respondent

Before: Justice A.W.J. Sullivan

Heard: May 2nd to May 8th, 2019 with written submissions filed on May 24th and 31st, 2019

Reasons for Judgment released: July 24, 2019

Counsel:

• Barbara A. Barnett, for the Applicant, Mili Arora
• Robert A. Fernandes, for the Respondent, Sahil Luthra

Reasons for Judgment

SULLIVAN J.:

Introduction

[1] This is the decision in a trial to resolve a Motion to Change brought by the applicant, Ms. Arora, dated April 26, 2017. She is the mother of the child, Dev Luthra, born […], 2014. Ms. Arora is a nutritionist working in a local area network hospital.

[2] She seeks to change the Order of Justice Parent of July 7, 2016.

[3] Mr. Luthra is Dev's father. He now operates his own logistics company in the area of transport/trucking.

[4] Ms. Arora is requesting a change to paragraph 2 of the July 7, 2016 Order and seeks to extend the sole custody order to include decisions regarding the child's education and argues that the parties are unable to make decisions together as it relates to their son's education.

[5] In addition she requests that the parenting schedule between the parties be changed, and argues that this should be done given the fact that their son has enrolled in school and to provide stability and consistency.

[6] Ms. Arora argues that Mr. Luthra has not complied with the terms of the last Order as it relates to child tax benefits and finally that her son's daycare at PLASP be shared as a Section 7 cost. It must be noted that both of these issues were not pled in Ms. Arora's Motion to Change. They seem to appear in this trial as issues that have crept in over time. More on this later in the decision.

[7] Mr. Luthra initially filed a Response to Motion to Change dated May 29, 2017, in which he argued that there was no material change in circumstances, but amended this position and filed an Amended Response approximately a year later in which he argues that given the continuing conflict between the parties and the difficulty in communication that there is material change such that the Order should be changed.

[8] He argues the conflict is caused by Ms. Arora in not communicating with him regarding events in their son's life and seeking to reduce the parenting time between them both. He is seeking a parallel parenting regime and provided an outline of this plan.

[9] Ms. Arora also argues that conflict is the basis of the material change and points to Mr. Luthra as the cause of this conflict.

Is there Evidence of Material Change?

[10] The issue that I am struggling with in this trial is as follows:

A. Whether there exists material change in circumstances post the last Order and prior to the commencement of this litigation.

B. Should I be concerned about the timing of the issues complained about by the parties that they argued as material change, that arise during litigation as being "significant and long-lasting" between the parties such that it affects their son Dev?

C. Put another way, are the complained about events that appear or occur during litigation a proper context in which to assess the parties' behaviour/parenting cooperation and hence potential material change that affect the parents' ability to meet their son's needs, or are these events just part of how foolish, stubborn and positional parents may become when litigation commences and therefore not a proper barometer of their behaviour and compliance with the terms of the last Order which they consented to?

Is this a relevant consideration for me to consider when trying to resolve a Motion to Change as I have been asked to do for these parents and their son Dev?

Legal Framework for Variation of Custody and Access Orders

[11] The law that I have considered that directs my analysis and decision in these Motions to Change is the following:

Variation of Final Orders (Custody/Access)

1. Two-Part Process

Variation of a final order for custody or access is a two-part process. The Ontario Court of Appeal in P. v. G.-P., 2009 ONCA 782, made it clear that a material change must be established first, before any variation or evidence about "best interests" is considered.

2. Jurisdictional Threshold

As this court has made clear, jurisdiction to vary a custody and access order is dependent on an explicit finding of a material change in circumstances since the previous order was made. If an applicant fails to meet this threshold requirement, the inquiry can go no further: see Litman v. Sherman (2008), 2008 ONCA 485, 52 R.F.L. (6th) 239 (Ont. C.A.). The matter is jurisdictional and a court must make a finding of a material change in circumstances even when, as here, both parties request a variation.

3. Definition of Material Change

Gordon v. Goertz, [1996] 2 SCR 27, establishes that the change in circumstances must not have been foreseen or reasonably contemplated by the judge who made the original order. The change must be to the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child. Change is not enough. The change must have altered the child's needs or ability of the parents to meet the child's needs in a fundamental way. Further, the change should represent a distinct departure from what the courts could have reasonably anticipated in making the previous order (para 12).

4. Significance and Duration

From: Roloson v. Clyde, 2017 ONSC 3642:

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

5. Supreme Court Standard

In L.M.L.P. v. L.S., [2011] SCC 64, the Supreme Court stated that the change must be substantial, continuing and that "if known at the time, would likely have resulted in a different order." The Supreme Court stated that it must limit itself to whatever variation is justified by the material change of circumstances.

6. Rationale for Two-Part Test

Few parties have the resources to continually litigate these issues. There are significant benefits to the children and the parties involved in the stability and predictability of finalizing the issues. If variation becomes the rule, instead of the exception, the best interests of children shall generally not be served.

Relevant Considerations

[12] Before reviewing below the significant evidence from the trial, I consider the following to be relevant in this matter despite the parties' differences.

[13] Both have agreed to several changes to the last Order as set out below. This consent was arrived at in the middle of this trial, although their counsel have been working with their clients on these changes for some time. As these changes were arrived at through a consent the last Order will be amended as such. These changes as follows are set out in my Order below in this decision.

Analysis and Discussion of Relevant Evidence Considered

The Move to Mississauga

[14] I heard in testimony that after the last Order and before the commencement of this Motion to Change, in December 2016, Ms. Arora informed Mr. Luthra that she was moving from Brampton to Mississauga to be closer to her employment and did so in December 2016.

[15] The evidence that I received is that Mr. Luthra did not object to this move and Dev's primary residence remained with Ms. Arora when she moved to Mississauga and Ms. Arora provided her new address to Mr. Luthra when she moved.

[16] Regarding events surrounding the move I did receive conflicting and unresolved evidence about whether Mr. Luthra actually physically assisted Ms. Arora with aspects of the move and that he has been to her new apartment. She denies that he did this and that he has been to her apartment.

[17] Ms. Arora deposed at this trial that part of her motivation for the move was that Mr. Luthra, after their divorce, was pursuing her and harassing her. The divorce process commenced in the fall of 2016 and the Final Order granted in January 2017.

[18] On this issue there was no independent evidence about this harassment.

Children's Aid Society Involvement

[19] At trial I heard evidence from two Children's Aid Society of Peel (CASP) social workers who had been working with the parents since the last round of litigation over past parenting issues. I heard that the parties were generally cooperating in late 2016, early 2017 and that CASP in early 2017 wanted to close its file.

[20] It should be remembered that at the time the parties had just settled the Final Order of Justice Parent dated July 7, 2016, and that Order was a Consent Order in which both parties were represented.

The important features of that Order are as follows:

a) Parenting schedule – there was to be consultation/review about the access schedule/residential arrangements for their son once he started school.

b) A shared custody regime over education and major extracurricular activities.

c) Consultation between the parties with respect to issues affecting their child's religious upbringing and general health and welfare.

d) That child support was based on a set-off between the parties' respective incomes given the time-sharing parenting plan.

Parenting Time and Exchanges

[21] From the time of Ms. Arora's move in December of 2016, Mr. Luthra exercised his above noted parenting time with Dev and the parties were cooperating regarding exchanges.

[22] I heard that regarding the exchanges, the parties agreed that after Ms. Arora's move, they were not to use the pick-up and drop-off location as set out in the last Order and instead use the Cassie Campbell Community Centre for drop-offs and the 22 Division of the Peel police for returns.

The April 2017 Incident

[23] My assessment of this family's situation is that there was the event in April of 2017 for which Mr. Luthra was charged with assault against Ms. Arora. This caused Mr. Luthra to commence a Contempt Motion which concluded with the court ordered parenting time resuming and Ms. Arora starting this Motion to Change.

[24] At trial I was informed that the criminal charges were about to be tried and resolved one way or another. I was informed that 2 of the 4 charges faced by Mr. Luthra were allegedly committed prior to the date of the last Order.

[25] About the event of April 2017 that precipitated this Motion to Change, I heard briefly about the event during an exchange from Ms. Arora that led to the charges. I was given a copy of Mr. Luthra's Undertaking to a Police Officer, Exhibit 6 to the trial, which required Mr. Luthra to communicate via a third party with Ms. Arora which has been in place since. This third person has primarily been Mr. Luthra's sister, Swati.

Communication and Evidence

[26] The parties each filed several volumes of emails of communication between the parties on several issues, most of which touch on issues post the litigation being commenced and most communication is not directly between Ms. Arora and Mr. Luthra but rather between Ms. Arora and Mr. Luther's sister, Swati Luthra, who testified at trial.

[27] There was also filed several volumes of CASP worker case notes from conversations and visits with the parties over the years and these workers were questioned using these notes at trial.

[28] Ms. Arora filed 3 volumes of this above described information: Exhibits 1, 3 and 4 and Mr. Luthra: Exhibit 2, 10 and 14.

[29] Most of the differences between the parents that I heard at trial have occurred post the criminal charge event of April 2017 and post the filing of the pleadings.

Issues Raised by the Parties

[30] The main issues that the parties testified to that they both suggest, for different reasons, support a material change since the last Order are:

• Their son's hair-cutting ceremony, Mundan. This issue arose prior to the Motion to Change;
• The child's medical needs and allergies;
• Dev's emotional welfare;
• Communication between the parties;
• The registration of their son at school;
• Dev's attendance at daycare PLASP;
• The issue of the child tax credit; and,
• The distance between their respective homes and Dev's school

Pleadings Review

[31] I believe it is important for me to review the grounds pled by the parties in their pleadings at the outset of this litigation in support of what they considered to be material change(s) since the last Order.

[32] From Ms. Arora's Motion to Change she deposed the following:

1. That Mr. Luthra has become increasingly abusive and some instances have taken place in front of Dev such that Dev is scared of his father and Dev does not want to go to visits.

2. The father's anger and alcohol use pose a danger to the child.

3. Mr. Luthra has been charged with assaulting Ms. Arora.

4. Ms. Arora fears that Mr. Luthra may try to harm himself in front of their son.

5. The parties cannot effectively communicate and Mr. Luthra must use a third party to communicate with Ms. Arora due to the criminal charges.

[33] In Mr. Luthra's amended Response to Motion to Change, one year after the matter commenced, he filed the following:

1. Ms. Arora's behaviour went from bad to worse after the date of the last Order.

2. Ms. Arora did not inform Mr. Luthra of Dev's registration at school, daycare or doctors.

3. Ms. Arora arranged a significant religious ceremony, that of their son's first haircut, without the father's knowledge.

4. Ms. Arora does not inform Mr. Luthra of Dev's medical appointments.

Evidentiary Issues: Use of CAS Case Notes

[34] As noted above both parties in this trial questioned the two child protection workers who have been working with them for years.

[35] When questioning the workers, both parties' counsel made reference to the workers' notes which recorded statements from both parents.

[36] Initially Ms. Arora's counsel questioned the workers in order to elicit from them whether Ms. Arora had talked to the CAS about difficulties with Mr. Luthra prior to the Motion to Change as well as during the litigation process leading up to this trial.

[37] I had some reservation about how this material was being used and questioned this at the trial as it appeared to be self-serving evidence to bolster the evidence of one of the two parties.

[38] In subsequent questions by the father's counsel some of this technique was also used.

[39] Both counsel also used the notes to ask the workers about statements made to them by the other parent during home visits and email exchanges.

[40] I recognize the value of the admissibility of some of the answers from the workers as Mr. Luthra in his case before the court has put into question the credibility of Ms. Arora alleging that she has created issues that did not exist otherwise known as "recent fabrication."

Legal Principles on Prior Consistent Statements

[41] There is a general exclusionary rule against admission of self-serving evidence to support the credibility of a witness unless his or her credibility has first been put into issue. See R. v. Sterling, 2008 SCC 10, [2008] 1 S.C.R. 272, in which Justice Bastarache states:

…however, a prior inconsistent statement that is admitted to rebut the suggestion of recent fabrication continues to lack any probative value beyond showing that the witnesses' story did not change as a result of the new motive to fabricate. Importantly, it is impermissible to assume that because a witness has made the same statement in the past, he or she is more likely to be telling the truth, and any admitted prior consistent statement should not be assessed for the truth of their contents.

[42] Put another way…the admission of a prior consistent statement has the effect of neutralizing the allegation of recent fabrication and does not provide independent corroboration for support to the credibility of the witness. That is so because the quoted evidence remains in the state it was before the failed credibility challenge. Refer to J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada, fifth edition, at page 433.

[43] This is equally applicable in civil cases where contradictory statements may be used against the witness but unless the above noted exception exists it has long been understood that…"you are not entitled to give evidence of statements on other occasions by the witness in confirmation of her testimony" supra, The Law of Evidence in Canada, fifth edition, page 429 as well as chapter 16, The Examination of Witnesses.

[44] Although both the applicant and the respondent testified in this case, there is also an inherent hearsay danger in such prior consistent out-of-court statements being entered if the maker of the statement does not testify.

[45] In addition I note from R. v. Sterling, supra, the court stated…"the valuelessness of such evidence since a witness' story is not made more probable or trustworthy by any number of repetitions of it."

[46] Having reviewed my trial notes on this line of questioning from both the applicant and the respondent in their question about the CAS case notes with the respective child protection workers, I accept the evidence as an exception to the above noted rule as follows:

a) Statements against interest that each parent addressed in court in their testimony;

b) To rebut any allegation/suggestion of the applicant's credibility of recent fabrication; and/or,

c) To provide and adduce facts for both parents as part of the narrative of their situation in this ongoing litigation and the ongoing differences that they have had through the course of this litigation.

Significant Testimony Considered

[47] It appears that much of the differences between the parties arose after the April 11, 2017 assault charges were laid against Mr. Luthra.

[48] This in a way is understandable as only 9 months had passed from the July 2016 Final Order. This fact itself is significant when asking what the material change has been since before the commencement of this round of litigation.

Dev's Behaviour and Emotional Welfare

[49] Ms. Arora claims that following the date of this incident that their son began behaving inappropriately, hitting, swearing and acting out. She attributes this to her son being exposed to the poor behaviour of his father and the assault.

[50] Two CASP workers who had been working with the family before and since the last Order testified at trial. Both Ms. Kovacs and Ms. Makkappillil did indicate that they observed the child acting out both with mother and father. They did on occasion hear Dev refer to his mother as a "bitch dog."

[51] Their overall testimony was that for some 3.5 years CASP had intervened around the number of issues between the parents before the last Order and since around such issues as the hair-cutting ceremony, toy guns, assuring there was a proper car seat, smoking, counselling and general poor communication between the parents.

[52] What was evident from the CASP notes and testimony was that each parent complained of the other but the CASP concluded that each parent was a loving and caring parent to their son and that the main problem between them both was adult conflict and poor communication.

[53] Both parents testified that at one point the workers gave them both pamphlets dealing with how "alienating behaviour" by parents could affect a child's relationship with a parent and the harm caused to children in this regard.

[54] I heard little or no direct evidence of this behaviour attributed to either parent other than the title of the pamphlet.

[55] Neither worker indicated that the child's acting out could be attributed to the other's parenting or the incident of April 2017 but that the ongoing level of conflict was affecting the child and that there was parental competition over Dev that impacted his welfare.

Counselling and the Healing Network

[56] CASP did support Ms. Arora's attempts to have Dev attend counselling through the Healing Network. Both CASP workers confirmed that they had witnessed some poor behaviour by Dev while with his mother and confirmed the need for her to have some counselling/technique training on how to deal with his poor behaviour.

[57] On the issue of counselling I did receive testimony regarding Mr. Luthra's reservations about the Healing Network as an appropriate service for counselling as the Healing Network's mandate is to provide counselling to individuals and their children who have been victims of domestic violence. There was discussion with him directly and this was the topic of email exchanges and found in CASP case notes.

[58] At best he had reservations about the approach and mandate of this agency and also that he did not see any of the behaviours that Ms. Arora mentioned regarding Dev when his son was with him.

[59] Eventually in February 2018 Mr. Luthra did agree to this counselling.

[60] Ms. Arora's position is that Mr. Luthra's unwillingness to provide consent for their son's participation in this counselling at the Healing Network is a clear example of a material change in that this illustrates Mr. Luthra's inability to cooperate regarding the issue of "education" as this was a form of counselling/treatment/education for their son.

[61] I note that this difference occurred as a result of the event of April 2017 and not necessarily as an occurrence or difference over their son's education that manifested itself since the last Order and before litigation commenced this second time.

Education and School

[62] According to the last Order with regards to their son's schooling the parties are to make joint decisions.

[63] In the last Order the parents were to review the Order and the parenting time between them both when Dev was to start school.

[64] When this Motion to Change was filed Dev's schooling had not yet started and was to begin in about one year or so. As such the issues raised at trial about their son's daycare as a Section 7 cost and how their son attends this program was not an issue at the start of this litigation and not pled by Ms. Arora. It crept into this trial as an issue with the passing of time.

Counsellor's Testimony

[65] At trial the counselor from the Healing Network, Ms. Oppitz, testified in general terms regarding Dev's behaviour, but could not and did not necessarily link this to any particular parenting style or actions of either parent.

[66] She testified that she spent approximately 10 hours with Dev during the counselling sessions and conducted played therapy sessions as well. She was not qualified as an expert and did not present an opinion.

[67] I found Ms. Oppitz's testimony to be forthright, balanced and honest in addition to her being a very caring social worker.

[68] Her testimony, however, did not substantiate a material change that was directly connected to the parent's behaviour.

[69] At the end of the day I could not, from this testimony, conclude that Dev was acting poorly at times with his mother because of one parent or the other's parenting methods or because of the general conflict between them both.

[70] In addition Dev was at the time approximately 2.5 years of age and going through developmental changes for a child of that age, which is not necessarily unusual and is something I can take judicial notice of.

Communication Difficulties

[71] With regards to the difficulty in general communication regarding medical appointments, much of the difficulty that was testified to was not objectively directly between the parents, from the evidence presented, but rather between Ms. Arora and Mr. Luthra's sister who acted as a go-between based on the release conditions that Mr. Luthra has been under since this matter has commenced.

[72] I did hear in testimony from Mr. Luthra that he provided instructions to his sister who then relayed these to Ms. Arora. As such, he agreed that the positions on issues in the sister's emails to Ms. Arora were in effect his.

[73] The difficulty I am having in assessing the evidence of communication difficulties is the following.

[74] Much of the evidence in email exchanges has been since the April 2017 event and through third parties, relatives and at times the CASP workers.

[75] These were not examples of difficulties that existed post the last Order and before the Motion to Change was commenced. Rather they occurred within the context of this ongoing litigation. This makes it difficult for me to assess the parties in their normal workings between them both outside of litigation. By this I mean that within the context of a litigation file everything can and at times does become an issue and the parities' actions however minor fall under the scrutiny of the litigation microscope.

Hair-Cutting Ceremony (Mundan)

[76] On the issue of the hair-cutting ceremony (Mundan) which did occur prior to this latest round of litigation, although there was a difference around the timing and venue there was no difference on the fact that it should occur as part of their spiritual and cultural beliefs, which it eventually did, albeit not to the satisfaction of both parties.

Medical Appointments and Allergies

[77] On the issue of doctors' appointments and their son's allergies, at the end of the day the parties are on the same page of the need to address his allergies and have come to an agreement in their latest consent that was filed within this court proceeding.

[78] I also heard from their child's allergist, Doctor Azza Hamed, who testified and confirmed her information found in a transcript of a joint interview conducted with her by both counsel outside of court - Exhibit 5. Importantly, both parties agree to follow this doctors' instructions in working with their son's allergies.

Smoking and Environmental Concerns

[79] I did hear that Mr. Luthra lives with his parents and sister and that his father smokes. Ms. Arora testified to seeing the grandfather smoking in the car on one occasion when the grandparents were waiting to pick up Dev. The grandfather who testified at the trial deposed that he does smoke but outside only and that his clothes are washed frequently by his wife.

[80] Mr. Luthra and his family members testified as to what they have done at their home to accommodate and assure that it was clean from dust and smoke. Both the grandfather testified as well as Mr. Luthra on this issue and they were consistent in their testimony on this issue.

[81] Doctor Hamed did not provide an exact opinion as to what has caused Dev's allergies but provided suggestions as to what both parents need to do to minimize the allergies which I heard that both agree to do. The doctor suggested dust, heavy scents/fumes and the smell of tobacco, not only smoke, perfumes and strong cleaning products must be avoided.

Distance Between Homes and School

[82] Ms. Arora also asked the court to consider as a material change the distance that her son must travel between his father's home and his school close to her house in Mississauga.

[83] I heard conflicting evidence on the time, that it takes anywhere from 20 minutes to one hour. I did not have accurate and reliable evidence in this regard.

[84] It might take somewhere in between to do this on average. The issue is how it is affecting Dev at school. I did receive evidence of his report cards which show his improvement from November of 2018 through February 2019 - Exhibit 12.

[85] Dev had some initial trouble adjusting at the start of his school experience and his social interaction improved over the course of the year. In the February 2019 progress report it is noted that Dev…"made a wonderful transition into Kindergarten. He was sharing and interacting and using his language to work with his peers and express himself. His academic skills were developing on course as well."

[86] No teachers from the school testified about Dev's overall emotional welfare or whether or not such travel, after being with the father, has affected Dev's behaviour at school.

[87] I also have to consider the fact that the parties knew of this issue and agreed to this move with the understanding that the parenting schedule set at the time of the last order remained the same and actually was happening without complaint before the Motion to Change was commenced by Ms. Arora.

Current Parenting Schedule

[88] Currently Dev spends the following schedule with his dad which requires driving to and from school during the school week:

A. On week one – from Tuesday at 7:00 p.m. to Thursday at 7:00 p.m.; and

B. On week 2 – from Monday at 7:00 p.m. to Wednesday at 7:00 p.m. and from Friday at 7:00 p.m. to Sunday at 7:00 p.m.

[89] No evidence was led from professionals working with the child about how he is responding to this schedule between his mother's and father's home.

School Attendance and Missed Days

[90] I did not receive evidence from the school as to any serious conflict between the parents when it comes to the child's education at school, which really has only just started.

[91] I did hear that Mr. Luthra did take his son out of school for events and occasions that he has classified as religious activities and significant family events. This was not denied by Mr. Luthra.

[92] From this evidence regarding Dev's missed school days there definitely has been more days missed when he is with his father.

[93] I do not find this amounts to a material change at this stage in Dev's educational life that would require the last Consent Order between the parties to be changed.

Daycare Attendance

[94] I also heard that Ms. Arora has registered her son in daycare (PLASP) before and after school and that when he is with her he attends this program but not when he is with his father.

[95] Mr. Luthra does not have his son attend before and after school daycare but rather will return his son to school for his programs at school in the mornings and pick him up after school rather than from daycare, as he has the ability to do so with the assistance of either his family or by him directly picking up his son when school is out.

[96] This was an issue for Ms. Arora who testified that this would affect consistency and continuity in her son's programming and potentially affect him as she uses the daycare in the morning and afternoon.

[97] At the end of the day I do not conclude that either of these issues, being taken out of school for some cultural/religious events by his father or not using the PLASP daycare before and after school, amount to a material change that would require the last Order being changed.

[98] Further, I note that these issues were not distinct issues raised by Ms. Arora in her Motion to Change/Change of Information Form. These issues appear as this litigation lingered and progressed and as Dev commenced his schooling which the parties were aware would happen. They had turned their minds to this as it was mentioned in the final Order that they could review the parenting time presumably if Dev was being impacted by the start of school and the back and forth.

[99] Reviewing that outside of litigation is one thing, but to suggest that it now be done in the context of this litigation is not what was meant by this term in the last Order. Litigation skews this conversation.

[100] Ms. Arora in her Change of Information Form does mention that she believes the moving between two homes frequently is not beneficial to her son, but not more than this at that time and provided no objective evidence at trial to support this assertion.

Decision on Material Change

[101] Much of the facts claimed in Ms. Arora's Change of Information Form in support of her Motion to Change were not actually put into evidence in this trial, with the exception that Ms. Arora did emphasize and testify, as she did in her Change of Information Form, in general terms, to Mr. Luthra's aggressiveness and abusive behaviour.

[102] I find that there was not much cogent evidence presented on this issue other than general statements about his escalating aggressiveness, which Mr. Luthra denied.

[103] I did hear that after this litigation commenced that both parties had registered their son at different schools as they were uncertain what was going to happen regarding custody given the differences that occurred with the Contempt Motion and Motion to Change being filed. This is an example of how parties begin to act foolishly within litigation.

[104] At the end of the day it was agreed that Dev would be registered in the school closer to his mother. Again this issue arose not before the Motion to Change was filed.

[105] I note that in her Motion to Change, Ms. Arora did raise the issues of Mr. Luthra's dependency or his use of alcohol and her concern of him being suicidal. None of these issues were raised at this trial and no evidence was led in this regard.

[106] The parents agreed prior to the litigation commencing that Ms. Arora could move and the access schedule unfolded as per the last Order without difficulties complained of in this litigation.

[107] Mr. Luthra argued that he was left in the dark regarding his son's medical appointments, however, in my review of the extensive emails filed in this trial, Ms. Arora did and has given Mr. Luthra advance notice of doctor's appointments and this does not seem to be a persistent issue if it ever was.

[108] Regarding the precipitating event of April 2017, that caused Mr. Luthra to be charged, I received very little evidence that would assist me in assessing the situation which is a serious issue and one that if I had received cogent and credible evidence might have amounted to a material change in circumstances. I simply did not receive this evidence at the level that would have assisted the court in re-evaluating the Order as per the directions in the above-noted jurisprudence.

[109] I consider section 24(4) of the Children's Law Reform Act to be a serious responsibility of this court, when given the relevant evidence to invoke this section.

Conclusion on Material Change

[110] In my assessment of all of the above issues that I have considered relevant to what the parties have testified to as a material change, I conclude that although there have been differences these do not amount to material change. The evidence does not amount to conditions that are significant and long-lasting. The events testified to, although several, when examined in light of the law by me in this trial are I find at best short-lived and not long-lasting and also do not show a continued or persistent pattern of actions or attitudes of the parents that could be linked over time from shortly after the last Order.

[111] This I have concluded whether these events occurred before or during this current litigation. Further, in answer to the question I posed at the start of this decision, if an event occurred during litigation that significantly impacted Dev's needs and the parents' parenting ability to meet his needs, I would not hesitate to find that a material change occurred that directs a review of a child's best interest afresh.

[112] However in this trial the independent evidence of the two CASP workers was that Dev's needs are being met by both parents. His health needs are being addressed. His educational needs are progressing and he has transitioned to formal schooling which is always a challenge for a child of this age. Both parents love him and he is thriving emotionally and spiritually because of this parenting arrangement. The issue is that both parents need to believe in their abilities to parent Dev without competition for his love over a period of time outside of litigation.

Order on Custody and Access

[113] As such other than the changes that the parties wish to make on their own in the Consent filed on May 3, 2019, I find there is no material change in circumstances that support the variation of the Order of Justice Parent dated July 7, 2016, and dismiss the requests to do so in both Ms. Arora's Motion to Change and Mr. Luthra's Amended Response, except as the consent to do so.

[114] Order to go as per Consent filed.

Section 7 and Child Support Set-off

[115] Mr. Luthra requests in his Amended Response to Motion to Change to revisit the set-off child support ordered and opens the door for a resolution of Section 7 costs being daycare for their son Dev since the date of the last Order.

[116] Ms. Arora argues that Mr. Luthra agreed in the last Order to pay $300 per month in set-off child support despite at the time that she earned $6,000 more than he did.

[117] She further argues that he has not shown any evidence that he is now paying any more for Dev to be with him.

[118] Mr. Luthra notes that if one accepts his income at $75,000 per year and Ms. Arora's at $92,000 that there is a $17,000 difference between them both.

Legal Test for Material Change in Child Support

[119] The legal test for material change in circumstances when it comes to child support is outlined below.

[120] In this trial neither parent took issue with the concept that there is a shared custody situation for their son Dev. Therefore in these circumstances the following law applies when considering how to allocate support. It is not a straight set-off as such and the following factors are to be considered:

Shared Custody – Contino Principles

1. Must look at all 3 factors in s. 9.

2. The court should be flexible, none should prevail.

3. No presumptions apply. Section 9 creates a different method of calculating child support in these cases.

4. Must look at the continuing ability of the recipient to meet the needs of the child.

5. Can modify the set-off if different standards of living.

6. The total cost of raising kids may be greater in shared custody situations.

7. Must look at budgets and actual expenditures for both. The court is concerned about overall increased total costs of child-rearing for both parents, especially duplicated costs and any disproportionate spending by one parent.

8. Child expense budgets are a necessity.

9. Must consider all circumstances.

10. No formula is mandated and multipliers are rejected.

11. Section 9 is broad enough to incorporate section 7 expenses directly in the examination of child-related expenses.

12. There is no need to resort to section 10 undue hardship analysis.

13. A variation from a prior custody and support agreement will raise different considerations as a recipient parent may have incurred expenses, especially fixed expenses, based on legitimate expectations of continued child support.

Citing Contino v. Leonelli-Contino, 2005 SCC 63, Armstrong, J., of the British Columbia Supreme Court, in Flick v. Flick, 2011 BCSC 264, identified the following factors for consideration in determining the amount of support to be paid in a shared parenting situation under section 9 of the Federal Child Support Guidelines:

• The language of s. 9 warrants emphasis on flexibility and fairness (para 39).

• It requires acknowledgement of the overall situation of the parents and the needs of the child (para 39).

• The weight of each factor under s. 9 will vary with the particulars of the case (para 39).

• Take into account the financial situations of both parents (para 40).

• Calculating the set-off amount is the starting point, not the end of the enquiry (para 49).

• The set-off amount does not take into account actual spending patterns as they relate to variable costs [or] the fact that fixed costs of the recipient parent are not reduced by the increased spending of the payor (para 48).

• The court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the child as they move from one household to the other (para 51).

• One of the overall objectives of the Guidelines is, to the extent possible, to avoid great disparities between households (para 51).

• The court must examine the budgets and actual expenses of both parents in addressing the needs of the child and to determine if shared custody has in effect resulted in increased costs globally (para 52).

• Increased costs would normally result from a duplication and the child effectively being given two homes (para 52).

• The expenses will be apportioned between the parents in accordance with their incomes (para 53).

• The analysis should be contextual and remain focused on the particular facts of each case.

• The court has full discretion under s. 9(c) to consider "other circumstances" (para 72).

• Courts should demand information relating to s. 9(b) and (c) when the evidence filed is deficient (para 57).

Analysis of Child Support

[121] Considering the law regarding shared custody, I find that there is no material change from the last Order when one considers the following facts.

[122] When the parties came to the current Final Consent Order there existed a difference in their respective salaries of $6000 in favour of Ms. Arora.

[123] Therefore this $6000 should be subtracted from the current difference in the parties' salary of $17,000 making the difference to be $11,000. The reason this should be done is the $6000 difference existed at the time of the last Consent Order and hence this is the baseline to evaluate a change.

[124] The next factor I consider is the accepted fact that I heard in this trial that Mr. Luthra is collecting some of the Child Tax Credit from the date of the last Order, although the last Order indicates this is to be collected by Ms. Arora.

[125] I am not ruling of this issue, as to whether this is right or wrong or why he is collecting this credit as he explained in this trial. I simply note that it is agreed he does and therefore this needs to be factored into the analysis regarding the difference between the parents' financial situation.

[126] Although I did not hear evidence on the amount of dollars Mr. Luthra collected in child tax credits, it has to lower the difference in their incomes noted above set at $11,000.

Considering the law above as a direction to me I have considered:

• Calculating the set-off amount is the starting point, not the end of the enquiry (para 49).

• The court must examine the budgets and actual expenses of both parents in addressing the needs of the child and to determine if shared custody has in effect resulted in increased costs globally (para 52).

• Child expense budgets are a necessity;

• Must consider all circumstances.

• The court has full discretion under s. 9(c) to consider "other circumstances" (Para 72).

[127] I also looked at the parties' respective Financial Statements filed in the Continuing Record and note that in Mr. Luthra's monthly budget he pays about $328.07 more for monthly rent/mortgage while living with his parents and sister than does Ms. Arora in rent. I did not hear in evidence what this difference might cover, such as property taxes/water/garbage and some utilities, which it might if I were to speculate in his favour.

[128] I note, however, that Mr. Luthra does not account in his budget or pay for utilities, groceries and household supplies, while Ms. Arora does.

[129] I did not receive from either parent a child budget, which is required in assessing what is to be done when considering which parent is to pay the other, if at all, in shared situations when there is a difference in their respective incomes.

[130] Considering the law and the facts as I find them, I conclude that while there is a difference in income between the parties it does not create a material change considering the other factors; the child tax credit, their respective budgets and no child budget to show any increase in caring for Dev from the last Order to warrant a change of the last Order regarding monthly child support.

Daycare

[131] On this issue of daycare costs, I received evidence that I accept that Ms. Arora requires daycare for her son's care before and after his school while she attends work.

[132] I heard testimony that Mr. Luthra believes he should not contribute to the Section 7 costs of daycare.

[133] He testified that if Ms. Arora wishes to use PLASP daycare during her time she can do so but he is not. Does this mean, however, that he should not contribute to this cost?

[134] The Child Support Guidelines define daycare as a Section 7 cost if it is a reasonable expense that meets a child's best interest.

[135] I heard evidence that the daycare is connected as a program with Dev's school. It has assisted in his transition to Kindergarten and he enjoys the programing. It has assisted with improving his socialization and language skills that were mentioned in his school report cards that I reviewed. It also most likely assisted Dev emotionally during the difficult times between the parties in this litigation as a place for him to grow. From my assessment of Mr. Luthra's objections to his son's attendance it was more in relation to his ability to drop Dev off in the morning to school which he does directly to his school program. He testified that given his flexible work hours, he also can pick him up at 3ish and therefore does not need this program.

[136] I find that the use of daycare within the context of the evidence in this trial that assists Dev in many ways as well as is needed in the afternoon by Ms. Arora whose work hours are not as flexible as Mr. Luthra's, and as such is one that is a material change and meets the definition and best interest of Dev when considering the overall evidence in this trial as set out in the Guidelines as a Section 7 expense that Mr. Luthra should contribute to proportionate to the parties' annual income.

Order on Daycare

[137] Ms. Arora to provide to Mr. Luthra PLASP daycare invoices for calculation of his net proportionate share of this Section 7 cost retroactive to the start of Dev's attendance within 7 days of this decision.

[138] Mr. Luthra shall pay his net retroactive proportionate share of daycare cost once calculated to Ms. Arora within 90 days of this decision.

[139] Ms. Arora shall provide to Mr. Luthra ongoing daycare invoices and Mr. Luthra shall pay his proportionate share within 7 days of receiving each invoice or group of invoices. The Applicant and Respondent shall reconcile yearly the net cost of this daycare expense considering any tax credit granted and if any credit is owed to Mr. Luthra adjust this in his future payments.

[140] The parties to submit a draft Order regarding the above issue of Section 7 daycare retroactive and ongoing along with a completed SDO for my review and signature within 30 days from this decision.

Child Tax Credit and Justice Parent's Order of July 7, 2016

[141] In this trial I was asked to decide the issue between the parties regarding the child tax credit.

[142] I note this issue was not pled in either the Motion to Change or in the Amended Response to Motion to Change and therefore not properly before me to decide. Therefore I will not discuss this issue.

Final Order – Partial Minutes of Settlement

Subject to the approval of this Honourable Court, the parties hereto agree to a partial settlement of certain issues raised in this Motion to Change proceeding, on a final basis, on the terms set out below.

Both parties further confirm that neither of them is under any duress or undue influence of any kind, and that they are signing these Minutes of Settlement on their own volition, with the benefit of legal advice.

For clarity, "Dev" refers to the child, Dev Luthra, a boy, born […], 2014.

Both parties further agree that these Minutes of Settlement may be amended, as necessary, once a final determination has been made by the Honourable Mister Justice A.W.J. Sullivan on Dev's residential schedule.

1. Information Sharing

Both parties may make inquiries and be given information by Dev's teachers, school officials, doctors, dentists, healthcare providers, summer camp counsellors, or others involved with Dev. Both parties further consent to the release of all health information to the other parent. If necessary, the parties shall sign any Consents required to give effect to this term within 30 days from today's date.

2. Exchange Locations

All exchanges that take place during the school year will occur at Dev's school. All exchanges that occur outside of Dev's school term shall take place at Hindu Heritage Temple, Mississauga located at 6300 Mississauga Road, Mississauga, Ontario, L5N 1A7.

3. March Break

Commencing in 2020 and each March Break thereafter the parties shall equally share Dev's March Break such that the child will remain with the parent who has scheduled weekend time with him at the commencement of the March Break from the Friday following closure of school to midweek being the Wednesday at 3:00 p.m. Dev shall then be with the other parent from 3:00 p.m. on Wednesday until his return to school or PLASP on the Monday morning following March Break.

4. Mother's Day and Father's Day

Parent J.'s Final Order dated July 7, 2016, shall be varied in part as follows:

a) Dev shall be in the care of the celebrating parent from 10:00 a.m. on the Sunday returning him to school or PLASP on Monday morning, with the regular schedule continuing thereafter.

5. New Years

Paragraph 17 of the Final Order of Parent J. dated July 7, 2016, shall be varied in part as follows:

a) The parties shall alternate Dev's time between them on New Year's Day such that commencing in 2019 and in all odd-numbered years Dev shall be with the Respondent/Father from 10:00 a.m. on New Year's Day to 10:00 a.m. on the following day (January 2nd) (the regular schedule shall immediately resume thereafter). Commencing in 2020 and in all even-numbered years Dev shall be with the Applicant/Mother from 10:00 a.m. on New Year's Day to 10:00 a.m. the following day (January 2nd) (the regular schedule shall immediately resume thereafter). In the event the day following New Year's Day is a return to school, Dev shall be with the parent until his return to school on January 2nd when he is returned to school or PLASP in the morning.

6. Dev's Birthday

Dev's birthday shall be spent with the parent he is with.

7. Diwali

Paragraph 16 of Parent J.'s Final Order dated July 7, 2016, shall be varied as follows:

a) The parties shall alternate Dev's time with them for the Diwali celebration such that commencing in 2019 and in all odd-numbered years thereafter, Dev shall be with the Respondent/Father from after school or PLASP the day prior to the day of the actual celebration and return to school or PLASP the day following the Diwali celebration (the regular time sharing schedule shall immediately resume thereafter). In all even-numbered years starting in 2020, Dev shall be with the Applicant/Mother from after school or PLASP the day prior to the day of the actual celebration and return back to school or PLASP the day following the Diwali celebration (the regular time sharing schedule shall immediately resume thereafter). For purposes of this paragraph, "Diwali" shall be defined as the day that is recognized by the Ram Temple located at 270 Expert Blvd., Mississauga, Ontario L5S 1Y9.

8. Vacation Planning

If either parent plans a vacation with Dev, that parent will give the other parent a detailed itinerary at least 30 days before travel begins, including the name of any flight carrier and flight times, accommodation, including address and telephone numbers, and details as to how to contact the child during the trip.

9. Age-Appropriate Toys and Materials

Neither party shall purchase non-age-appropriate toys, including guns (whether they be Nerf guns or dart guns) for the child. They will encourage all third-party gifts to the child to be age appropriate and, if necessary will ensure as much as possible that the child is not exposed to toys, activities, films or any other non-age appropriate materials or media.

10. Dispute Resolution

If the parties are unable to resolve a parenting issue, they will jointly retain a Mediator/Arbitrator to assist with the dispute. If the parties are unable to agree on a Mediator/Arbitrator, they will seek assistance through their respective counsel to assist with choosing a neutral third party Mediator/Arbitrator. If a parenting coordinator becomes necessary to assist on an ongoing basis, the parties shall jointly choose a parenting coordinator with the assistance of their counsel and/or the Mediator/Arbitrator, if they are unable to agree. The parties will share equally the cost of the Mediation/Arbitration. If the parties cannot resolve the issue through mediation, the Mediator will arbitrate the issue. If there is an arbitration, the Arbitrator will have the right to reapportion costs.

THIS TERM SHALL TAKE EFFECT AFTER: (1) THE HONOURABLE MISTER JUSTICE A.W.J. SULLIVAN IS DEEMED FUNCTUS OFFICIO OF THIS MATTER; AND (2) AFTER ALL AVENUES OF APPEAL HAVE BEEN EXHAUSTED OR AFTER ALL APPLICABLE APPEAL LIMITATION PERIODS HAVE EXPIRED.

Comment to the Parents

[143] To Ms. Arora and Mr. Luthra: This decision might be a disappointment to you given the emotional and financial capital that you both have invested in this litigation.

[144] The evidence is that Dev is loved by you and is thriving because of your care for him. You are now at a crossroad in Dev's development which continued litigation will only hurt, something I believe you would never do consciously.

Costs

[145] Finally, on the issue of cost, given my decision and the law on costs I find that this trial does not attract a cost award.

July 24, 2019

Justice A.W.J. Sullivan