Court File and Parties

Ontario Court of Justice

Date: 2020-04-22

Court File No.: Brampton 381/14

Between:

S. Dempsey, Applicant

— And —

D. Infanti – Moving Party, Respondent

Before: Justice A.W.J. Sullivan

Heard on: March 6, 2020

Reasons for Judgment released on: April 22, 2020

Counsel:

• Mr. D. Furlan, counsel for the applicant, S. Dempsey
• Mr. J. Rosenberg, counsel for the respondent, D. Infanti

Reasons for Judgment

SULLIVAN, J.:

Introduction

[1] This is the decision from a one-day focused hearing pertaining to Mr. Infanti's Amended Motion to Change; Tab 1 Volume 8 of the Continuing Record (CR). Mr. Infanti had filed an initial Motion to Change on June 21, 2019 and the amended Motion to Change on November 21, 2019.

[2] Mr. Infanti seeks to change the Final Order of J. Clay dated October 20, 2014, which I summarize as follows, except (e) below:

(a) A 50/50 time sharing of Connor during 2019 summer and ongoing each summer.

(b) Details regarding 2019 schedule provided.

(c) An order pursuant to Rule 8(2.1) of the Family Law Rules that is consistent to paragraph 10 of the 2014 Final Order of J. Clay, that he has his son for 14 consecutive days August 21, 2019 to September 3, 2019.

(d) Orders that if Connor enrolled in summer camp that Mr. Infanti may elect to bring him or not on his time and that the net cost of this activity be shared equally, as a section 7 cost between the parties.

(e) That he is seeking the relief noted above in the form of a Motion to Change out of an abundance of caution, and without prejudice to his position that the Final Order of Justice Clay, dated October 20, 2014, is silent with respect to the issue of the summer holiday parenting schedule. If the court is of the opinion that the above relief should be sought by way of Application, the Respondent seeks an Order for directions, pursuant to Rule 1(6), 1(7.2), 2(2), 2(3), 2(4), 2(5) and 14(1) of the Family Law Rules so that this Motion to Change may be reconstituted as an Application to the Court, but respectfully, without delay to the process.

(f) Costs.

(g) Make-up parenting time for missed time in the summer of 2019.

[3] Ms. Dempsey filed a Response to Motion to Change; Tab 5 of Volume 8 of the Continuing Record (CR), in which she disagrees with the above claim of Mr. Infanti.

[4] In preparing for this hearing, I had requested that each party file an affidavit as their principal evidence in support of their respective positions.

[5] Mr. Infanti's affidavit is located at Tab 1 of Volume 9 of the CR.

[6] Ms. Dempsey's affidavit is located at Tab 8 of Volume 8 to the CR (although in response it was filed before that of Mr. Infanti's).

[7] Each was their only witness in this hearing and after both swore to the accuracy and truth to their affidavit, each was cross-examined on their evidence.

[8] The only issue in this hearing was the summer parenting schedule as set out above in the relief sought by Mr. Infanti.

[9] The parties settled between themselves, with the assistance of their lawyers, an annual update of Mr. Infanti's income to adjust monthly child support as per their last order.

Recent Litigation History Leading to this Hearing

[10] On June 21, 2019, Mr. Infanti filed a motion without notice seeking leave to bring a motion on an urgent basis for much of the relief set out above and/or direction for an early case conference.

[11] I denied the ex-parte motion as it did not comply with the criteria as set out in Rule 14(12) of the Rules; an immediate danger to a child's health and welfare or a child is being removed from Ontario.

[12] I wanted all parties served and I asked that both sides consider holding a 4-way meeting to resolve this matter. I further noted that if after their best efforts at negotiations failed, I would consider an early case conference date to discuss this matter and plan next steps.

[13] A case conference was held on August 13, 2019, at which time the matter was spoken to and Mr. Infanti requested that he amend his Motion to Change and a settlement conference was scheduled for October 18, 2019 and rescheduled on consent to November 18, 2019.

[14] In November 2019, the parties were still unable to settle this litigation. I held an abbreviated settlement conference and rather than provide an opinion and exclude myself, I offered the parties the ability to have a fairly quick turnaround for a hearing before me which they accepted and the focused hearing was planned for as noted above and held on March 6, 2020.

Litigation since Final Order of J. Clay dated October 20, 2014

[15] Before I review all of the relevant evidence in this hearing set out below, it is important to understand the previous litigation since the last Order of Justice Clay in 2014. It is equally important to understand that each party has a different view of the outcome of this earlier litigation which influences how they are approaching today's hearing.

[16] They both agree that Mr. Infanti commenced a first Motion to Change on December 21, 2016.

[17] Ms. Dempsey further points out that Mr. Infanti commenced two unsuccessful appeals of Interim Orders, and Justice Clay's January 27, 2017 Summary Judgment decision dismissing Mr. Infanti's December 21, 2016 Motion to Change.

[18] Mr. Infanti in his review of the earlier litigation notes the following in his evidence before me today: In paragraph 9 of his January 29, 2020 affidavit to this hearing he states:

Shannon and I resolved all issues arising from our initial court proceeding by way of minutes of settlement, dated October 22, 2014, which were subsequently incorporated into a Final Order of Justice Clay of the same date.

Mr. Infanti goes on to state and underlines … Save and except for parenting issues raised in this proceeding, but not addressed within the final order, such as the summer residential schedule for Connor, and otherwise.

[19] Regarding the outcome of his first Motion to Change commenced on December 21, 2016, Mr. Infanti states the following:

Ultimately there were no reasons to pursue a shared summer residence schedule for Connor in my 2016 Motion to Change as Shannon and I abided by such a regime since the summer of 2016, including the summers of 2017 and 18. Although I included this relief in my 2016 Motion to Change, there was no need for me to ultimately pursue this and it was not addressed by the court, as Shannon and I had agreed to increase my 2016 summer parenting time (and thereafter my 2017 and 18, summer parenting time).

[20] Mr. Infanti further testified that in Justice Clay's Summary Judgment decision dismissing his 2016 Motion to Change that … his Honour only pronounced on the fact that there was no threshold issue requiring a trial regarding whether there was material change in circumstances to change Connor's regular residential schedule.

[21] In other words, from his understanding, Justice Clay did not discuss or rule on the summer residency schedule that he is seeking in this Motion to Change before me today.

[22] Mr. Infanti further emphasized that the October 2014 Final Order of Justice Clay is silent with respect to the summer residence schedule.

[23] The main issue to be resolved in this hearing is as follows.

A Review of the Main Evidence Presented

[24] Mr. Infanti testified that he commenced this current motion to change as Ms. Dempsey unilaterally refused to not share Connor's summer time equally between each home. This he states is contrary to what they had agreed to for the summers 2016, 2017 and 2018 in which effectively their son spent equal time between their households. He argues this is the status quo to be followed.

[25] He recalls that negotiations with Ms. Dempsey began in April 2019 and were progressing until she broke off discussions and informed him of her intention to enroll Connor in summer camp for 2019.

[26] He notes that in 2017 and 2018 Connor did not attend camp.

[27] He felt that if Connor attended summer camp this would interfere with his parenting time. He does not oppose Connor attending camp subject to his sole election to decide whether Connor attends camp during his summer-time parenting of Connor.

[28] Mr. Infanti gave details of the shared summer parenting calendar from 2016 through 2018.

[29] Ms. Dempsey did not contest the details of what the parties had agreed to in the three earlier years, but noted, she has always been flexible in arranging increased summer access between Connor and his father depending on Connor's developing needs.

[30] Ms. Dempsey testified that she had agreed from time to time to consent to extra parenting and rescheduling of access with Mr. Infanti in the years 2016, 2017 and 2018.

[31] She further indicated that at no time did she ever believe that this was a binding status quo. From her perspective it is important to be flexible and consider what is best for Connor when dealing with these matters and that their discussions were always on an ad hoc basis with Connor's needs as their primary focus.

[32] Mr. Infanti also noted that as per paragraph 10 the 2014 Order of J. Clay, that he has always taken the 14 consecutive days of holidays in the summer usually towards the end of August beginning of September and this is something that he intends to do on a regular basis.

[33] He is seeking to equally share the additional periods of time in the summer outside of the 14 days that he could potentially exercise in the summer if they wish to do so.

[34] Mr. Infanti testified that he became concerned about the tone and manner in which Ms. Dempsey failed to negotiate with him in early April through May of 2019 which caused him to file this Motion to Change.

[35] Ms. Dempsey suggests that Mr. Infanti was being less than direct with the court and presented a letter that she instructed her counsel to send on May 24, 2019, which offered shared time in 2019.

[36] She testified that effectively she proposed that outside of the 14 consecutive days of holidays, pursuant to the Final Order as noted above to be taken by Mr. Infanti, there would be 35 remaining days in the summer. She proposed that they would each share a rotating 7-day week, such that of Connor's 63 days of summer holidays, Mr. Infanti would have his son for 31 of these days.

[37] She testified that this May 24, 2019 proposal was not mentioned in Mr. Infanti's emergency 14B motion nor his Motion to Change when he filed on June 21, 2019.

[38] Ms. Dempsey testified that for 2019 she enrolled Connor in the Holy Family Day Camp. I was told that Connor had in 2016 participated in some of the various programming of this camp.

[39] She explained how there was a different theme for each week and that Connor was excited and wanted to spend extra time at camps with his friends each day as well as attend an extra week for a total of six weeks in 2019.

[40] She testified that she is always open to the idea of negotiating and discussing on an ad hoc basis the extra time that Connor can spend with his father yearly, and in particular over the summer. She confirmed that Connor enjoys his time with his dad.

[41] She understands that Mr. Infanti has forewarned her that he will always be exercising his option to have 14 days holidays towards the end of August of each year beyond the normal weekly parenting time as per paragraph 10 their 2014 Final Order.

[42] Mr. Infanti testified that he is seeking a fixed equal sharing of Connor's summer holidays in addition to those 14 days noted above.

[43] He believes that without this fixed schedule he will always be at the whim of Ms. Dempsey's discretion, which he believes she will not exercise in a fair and balanced way as she has not respected the status quo set by their sharing of Connor's time between their homes in 2016, 2017 and 2018.

[44] This, Ms. Dempsey testified, is not the case as the past summer's negotiations, including that for 2019, has led to increased time for Connor to spend with his dad.

[45] Mr. Infanti argues that he shares a close bond with his son who is now seven years old, and that Connor often asks about what they are going to do in the summer.

[46] Mr. Infanti suggested that Connor complains of how long he is left at camp each day before being picked up.

[47] Mr. Infanti explained how he, Connor and family members enjoy camping and outdoor activities such as fishing and spending time at their camp and other outings around the province. That not to have this time with Connor increased, fixed and uninterrupted by any camp activity planned by his mother would deprive Connor of an important aspect of his life with his father. He notes how he has flexible work hours as he is self-employed, owning a HVAC company which permits him to plan events as described with his son over the summer.

Discussion and Decision

[48] Mr. Infanti filed a Motion to Change the Final Order of J. Clay from October 20, 2014.

[49] For such motions that touch on issues of custody and access to proceed to the second stage, such that a court may consider the issues of a child's best interest, requires the moving party to establish a material change in circumstances that affects the best interests of a child and the parents' ability to meet those interests.

…The change must have not been foreseen or reasonably contemplated…The change must be to the condition, needs, means or circumstances of the child and the ability of the parent to meet those needs. If this test is not met, the inquiry goes no further.

I will return to this below in more detail. See Gordon v. Goertz, [1996] 2 S.C.R. 27.

[50] Mr. Infanti argues he has established a material change in circumstances, such that I should consider Connor's best interest in the context of the summer access schedule he proposes in his Motion to Change.

[51] In addition, he argues that he should not be barred in bringing this second Motion to Change because in his Summary Judgment decision in which J. Clay dismissed Mr. Infanti's 2016 Motion to Change, his Honour did not pronounce on the summer access issue as the parties settled this between themselves for the year 2017. Therefore, it is submitted, Mr. Infanti did not need to pursue this issue and J. Clay was just left with deciding on whether a material change existed, and if it did, what impact might that have on the weekly access schedule as the only remaining issue at that time.

[52] In the alternative, Mr. Infanti argues that he should not be prejudiced from arguing that this matter should be considered by way of a Rule 8(2.1) Application and hence not the material change test, because Mr. Infanti argues the Final Order of J. Clay does not speak to the issue of a summer time/holiday schedule between the parties for Connor.

[53] Ms. Dempsey submits in closing:

a. Mr. Infanti argued this very issue of an equal summer access schedule in his first Motion to Change in 2016 which J. Clay dismissed.

b. That the Final Order of J. Clay from 2014, which was a consent order between the parties, does contain provisions for summer/holiday access and terms to negotiate other parenting time for Connor between each parent's home.

c. That in this second Motion to Change, Mr. Infanti has not established a material change in circumstances as a necessary threshold issue such that I should move to the second part of the test being a best interest consideration.

Legal Test Regarding Motions to Change

[54] Under Section 29 of the CLRA, the court may change a final custody/access order if there is a material change of circumstances affecting the best interests of the child. This is a two-step process:

1. Threshold Test: The moving party must first meet the threshold requirement of demonstrating that, since the last order was made, there has been a material change in circumstances that affects or is likely to affect the child. The previous order is presumed to be correct. The change must have not been foreseen or reasonably contemplated by the judge who made the original order. The change must be to the condition, needs, means or circumstances of the child and the ability of the parent to meet those needs. If this test is not met, the inquiry goes no further.

2. Best Interests Inquiry: Second, if the threshold is met, the court must embark on a fresh inquiry into the best interests of the child, having regard to all the circumstances in Section 24 of the CLRA. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. The court should consider the matter afresh without defaulting to the existing arrangement. See: Gordon v. Goertz, [1996] 2 S.C.R. 27, which has been held to apply to section 29 CLRA cases, see: Allen v. Allen, (1998), 38 R.F.L (4th) 96 (Ont. Gen. Div.).

[55] The requirement of a material change in circumstances means that a change motion cannot be an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its opinion for that of the first judge. It must assume the correctness of the decision and consider only the changed facts since the first order was made. Docherty v. Beckett (1989), 21 R.F.L. (3d) 92 (Ont. C.A.). The court should allow only a limited look at evidence predating the order to understand how it was made in order to determine if a material change in circumstances has been established. Hornan v. Hornan, 2007 CarswellMan (Man. Q.B.).

[56] 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.

[57] 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.

[58] Once the court determines that there has been a material change in circumstances, the court should then look at all the evidence, including the evidence predating the order from which change is being sought. Segal v. Segal (2002), 26 R.F.L. (5th) 433 (Ont. C.A.).

[59] The aging of a child does not necessarily constitute a material change in circumstances. The change must have altered the child's needs or the ability of the parent to meet those needs. The last order is presumed to be correct. Wiegers v. Gray, 2008 Sask 10 (CA).

[60] In order to determine if the conditions for a variation exists, the change of circumstances must be material as opposed to trivial or insignificant: Hickey v. Hickey, [1999] 2 S.C.R. 518.

Discussion and Decision (Continued)

[61] Is the issue of the summer access in this second Motion permitted to proceed given, as argued by Mr. Infanti, that J. Clay did not rule on this in the first Motion to Change, and/or is the original 2014 Final Consent Order of J. Clay silent regarding summer access or how this is established for this family such that I should look at this issue as a Rule 8(2.1) proceeding.

[62] I wish to first review these two issues raised by Mr. Infanti in these proceedings. These are intertwined in arguments made on his behalf and part of the foundation that support his conviction in why he proceeded as he has done with this litigation.

[63] Both parties were frank with the court that communication between them over the years has been difficult and at times strained. Ongoing litigation as reviewed above has contributed to this to some degree.

[64] Mr. Infanti in this hearing provided as exhibits to his affidavit, examples of his emails to Ms. Dempsey regarding the subject of 2019 summer access and camp. He submits that the tone of his communication was balanced and reasonable. This he argues was not the same in Ms. Dempsey's emails to him regarding this and other topics.

[65] They both agreed that at times they have cooperated amicably in Connor's interest such as around consent to sign Connor up for soccer that Mr. Infanti is involved in organizing and coaching. Ms. Dempsey further argues that despite some communication issues and differences of opinion around topics such as camp in 2019, that from 2016 to 2018 and even 2019 she engaged in meaningful discussions that concluded in agreements that benefited Connor. Was this process at times trying and difficult for the parents? Ms. Dempsey says it was as it has always been since their separation.

[66] When I suggested to counsel that each parent might have better days than others in how they communicate with each other, this was not entirely accepted on behalf of Mr. Infanti.

Mr. Infanti argued that he does not trust Ms. Dempsey's willingness to negotiate in good faith regarding summer access each year, hence the need for him to litigate summer access both today and when he did in 2016 when he brought his first Motion to Change.

[67] He argued that he does not want to be subject to Ms. Dempsey's whim regarding this issue each year. He submits that summer access has never been dealt with by the court in a conclusive and comprehensive manner both in the 2014 Final Order or in the first Motion to change in 2016, as the parties came to a consent agreement on both these occasions.

[68] At this point in final submissions on behalf of Mr. Infanti, I asked to see the Consent Order from that 2016 agreement or the summer access schedule that was settled on in the first Motion to Change.

[69] None could be provided and there is none attached to the endorsement to conclude that motion. Apparently, this issue was simply agreed to between the parties through their respective counsel. No consent was drafted and signed by the parties nor filed with J. Clay.

[70] This is significant as this is what the parties have done in 2017, 2018 and 2019.

[71] They have negotiated summer access either between themselves or with the assistance of their counsel.

[72] The fact that this method was accepted by Mr. Infanti as the resolution of that part of his 2016 Motion to Change is significant in that a part of the relief he requested in his first Motion to Change was not just for the 2016 summer schedule, it was for all subsequent years as his motion read in part (amongst other requests) as follows:

…iii - In the further alternative, an Order varying the Final Order with respect to the parenting provisions, to the extent that the parties have shared parenting of Connor or equal time parenting of Connor, inclusive of the regular residency schedule, the summer schedule, and all holidays, with no change to the legal custodial regime…

[73] I find that by not drafting and signing a consent to change the 2014 Order within the first motion to change, that Mr. Infanti and Ms. Dempsey confirmed their 2014 Order as the route or road map to settle issues of summer access – the very topic of this trial.

[74] Mr. Infanti, and for that matter Ms. Dempsey, cannot today declare it was not dealt with by the Court by their own actions in litigation in which both were fully represented at the time.

It was incumbent on Mr. Infanti if not satisfied to bring that matter forward as he could have but decided not to.

[75] His pleadings in that first motion to change framed the issue as not just a one-off summer access schedule for 2017 as noted above. His litigation position today in this second Motion on this point I find is barred and akin to "Action Estoppel" as per Justice S. Sherr's discussion on evidence. Res judicata action estoppel covers the situation where the issue was not raised in the prior proceeding, but could have been. In addition … the court requires the parties to bring forward their whole case and will not permit the parties to relitigate the issue… or the issue that might have been brought forward but was omitted; see Upper, [1933] 1 O.R. at page 7.

[76] Given the above, I dismiss Mr. Infanti's argument in this proceeding that the summer access schedule was never dealt with in previous litigation and therefore he may advance this request.

[77] In addition, by negotiating this issue with Ms. Dempsey in the way they did confirms that the 2014 Order has a provision for establishing a summer access schedule and is not silent on this issue, which is the second collateral argument raised by Mr. Infanti in this hearing.

[78] This was pointed out to counsel during the final argument when I reviewed paragraphs 4, 10 and 11 of the 2014 Consent Order of J. Clay which reads:

… 4 - The parties shall consult with one another regarding changes to the child's access schedule to consider the child's age and stage of development, and his best interest, and either party may seek a change based on the material change in the circumstances of the child or the parties, whether foreseeable or not. The parties shall negotiate between themselves regarding further expansion to the access schedule.

… 10 - Notwithstanding the regular access schedule set out herein, both parties shall be entitled to have the child … upon 60 days' notice to the other party, for up to 14 consecutive days each year for holiday and vacation travel purposes.

… 11 - that in the event of a parent travelling they will provide an itinerary to the other.

[79] The above provisions might not spell out the words summer access, but are the provisions agreed to by the parties and employed by them in 2016, 2017, 2018 and 2019 to arrive at a sharing of the summer holidays that Connor has from school.

[80] Has this process been pleasant for the parents? Probably not, however, I have not been provided with evidence that shows how this process has negatively affected Connor in any way.

[81] I heard in testimony from Ms. Dempsey that this formula permits both parents to put on the table the changing needs and developments of Connor when arranging his summer time between each home. It demands the parties adopt a flexible rather than rigid approach to Connor's needs.

[82] I find it is not this Court's function to interfere in the method and formula that the parties negotiated to settle extra and holiday access, which implicitly is free time in the summer or summer access unless it has not happened or is somehow negatively affecting a child. Both not the case here.

[83] I heard that Connor attends camp on her summer time with him and he seems to enjoy that experience. I also heard he equally looks forward to and enjoys the time and experience/activities that he has with his dad over the summer which is in addition to the 14 days mentioned in paragraph 10 to the final 2014 Consent Order. Mr. Infanti confirmed that he has and will most likely take these days towards the end of August/early September each year.

[84] As for Connor attending camp while with Mr. Infanti, Ms. Dempsey is not arguing for this, and Mr. Infanti is good with Connor attending while with his mom and contributing to this as a Section 7 expense. This then is agreed to between the parties although each has their respective views on the benefits Connor derives from church-based camp experience.

[85] I dismiss this collateral issue raised by Mr. Infanti as a means to advance his claim for a fixed summer access schedule in this current Motion to Change, such that I should consider this as a new issue as a Rule 8(2.1) Application and weigh this within the best interest test for Connor's well-being.

[86] Finally, is there a material change such that the 2014 Order be varied?

[87] Here I turn to Mr. Infanti's affidavit for this hearing and his oral testimony for what material change he suggests I should accept to move to the best interest test and equal sharing of parenting between the parents. In this regard the decisions of Kennedy v. Peters-Kennedy, 2017 ONSC 7269 (Ont S.C.J.), and Rigillo v. Rigillo, 2019 ONCA 548 (Ont C.A.), were provided to me for direction regarding the merits of his Motion to Change or the second stage of these Motions.

[88] Before I may explore the best interest test, I must be satisfied of the existence of a material change in the circumstances of the child. The onus rests on Mr. Infanti to establish this change that justifies a variation of the 2014 Order of J. Clay. see Gordon v. Goertz, [1996] 2 S.C.R. 27; Litman v. Sherman, 2008 ONCA 485, 2008 CarswellOnt 3542; and Koetsier v. Denis, 2016 ONCJ 834.

[89] Mr. Infanti does note that Connor is now 7.5 years old and that they share a close bond and that as Connor's dad he has always been involved in his son's development. Connor gains from and enjoys the activities they do in the country at his Cottage/Camp and around the province, some between them both and some with Mr. Infanti's close extended family.

[90] That it is Ms. Dempsey in 2019 who has disturbed the "established status quo" (time sharing) that was followed in the summers 2016 to 2018 such that in 2019 he and Connor were denied an additional 7 days together after discussions concluded on this topic between the parties via counsel.

[91] Mr. Infanti seeks these 7 days as make-up time.

[92] I find the evidence provided by Mr. Infanti does not meet the criteria of material change such that I have the jurisdiction to move to the second stage of a best interest inquiry within a motion to change.

[93] The evidence of Connor's age, his joy and interest in what is planned for him by his dad in the summer are very good to hear about and what a Court wishes for a child, but does not affect Connor's best interest nor the ability of the parents to meet his needs.

[94] As for Ms. Dempsey altering a status quo, this I find is not the case when one steps back and considers the full evidence as to how the parties have conducted their affairs in resolving summer access since the consent 2014 Final Order of J. Clay as follows:

a) Negotiations is the method agreed to by the parties to establish additional holiday and other parenting/access time in 2016, 2017, 2018 and 2019.

b) When doing so, the basis they have considered is Connor's age and stage of development and best interests, not that of each parent, as set out in paragraph 10 of the 2014 Final Consent Order of Justice Clay.

[95] I find that if there is a status quo between the parents since 2014, the above is it, and one that is to be maintained.

[96] This I find the parties themselves confirmed when the first motion to change was eventually resolved in 2017 without a written consent agreement, but through negotiations.

[97] I find that in 2019 that although negotiations might not have been a straight linear line before the summer started for Connor, that the parties had in place the major agreement of summer parenting for 2019, except for 7 days that Mr. Infanti argues are owed to him and Connor. I find that Ms. Dempsey set out this agreement in a May 24, 2019 counsel letter to Mr. Infanti's counsel a month before Mr. Infanti filed this second Motion to Change filed on June 21, 2019.

Final Order

[98] Based on the above findings and law, I dismiss the entirety of the Motion to Change found at Tab 1 Volume 7 of the Continuing Record and Amended Motion to Change Tab 1 Volume 8 of the Continuing Record including the alternative Rule 8(2.1) Application pleading, within these pleadings.

Costs

[99] On the issue of costs for this litigation, I encourage the parties to negotiate this issue and reach a reasonable settlement. If by July 1, 2020, but not before, costs are not settled, the party requesting costs is to serve and file via a 14B Motion to be brought to my attention, submissions of no more than 2 pages, bill of costs and any signed offer to settle made per the Rules. The other party shall have 14 days from service to reply in the same fashion.

[100] I wish Mr. Infanti and Ms. Dempsey the very best moving forward in their parenting of Connor and thank each counsel for their professional assistance in arguing this matter.

April 22, 2020

Justice A.W.J. Sullivan