ONTARIO COURT OF JUSTICE

Date: October 30, 2020

Court File No.: Toronto DFO-17-15988

BETWEEN:

A.M.L.

Applicant mother

— and —

G.L.

Respondent father

Ruling on Motions heard on June 12, 2020

Decision released October 30, 2020

Counsel:

• Jennifer Ryan, for the applicant
• G.L., Acting in Person

Before: O'Connell J.

INTRODUCTION

[1] Both parents have brought motions seeking to have the other found in contempt of the parenting orders in this case. Both are also seeking to change the orders governing the parenting schedule and custodial decisions for the child.

[2] The major issues raised by these motions are: 1) whether either parent should be found in contempt, and if so, the appropriate remedy; and 2) what factors should be considered in determining when it may be in a child's best interests to disturb a lengthy status quo on a temporary basis pending trial.

[3] This case can appropriately be described as "high conflict". The child at the heart of this conflict is J. He is now six years old.

[4] There are three main orders governing the parents' custody, access and support issues in this case: 1) a Final Order dated July 23, 2018 regarding the parenting or residential schedule for the child; 2) a Final Order dated July 30, 2019 regarding access to information, education and financial support; and 3) a Temporary "Without Prejudice" Order dated December 2, 2019 regarding shared custody and the custodial decision making process.

[5] The parties were scheduled to proceed to trial in the October 2020 trial sittings on the issue of custody (decision-making) only. The parties were not placed on the trial assignment list for the fall sittings for a number of reasons, including the significant backlog created by the Covid-19 pandemic. This means that the parents may not proceed to trial until the spring trial sittings of either March or May of 2021.

[6] The parties had a very lengthy remote hearing before me on June 12, 2020 pursuant to the Court's Covid-19 protocol. These protocols are set out in the Ontario Court of Justice's website available for members of the public. Although regular operations had not yet fully resumed, I determined that the motions should proceed.

[7] I reserved my decision and expected to release my ruling shortly afterwards. However, as a result of a family medical emergency, I was away from work for a number of weeks. I sincerely apologize to the parties for the delay in releasing this decision.

[8] For the reasons that follow, I have dismissed both parties' motions for contempt. I have also dismissed both parties' motions for temporary variations of the final order regarding the parties' residential schedule pending a motion to change hearing or trial. However, I have granted the mother's motion for temporary custody and I have made ancillary orders flowing from this order. I have also further clarified for the parties my Order dated February 13, 2019 regarding the "right of first refusal" made following the delivery of oral reasons on that date.

THE MOTHER'S POSITION

[9] The mother has brought a contempt motion and a separate notice of motion seeking the following relief:

1. An order finding the father in contempt of the July 23, 2018 Final Order regarding the parties' regular parenting schedule;

2. As a remedy for the contempt, an order that the mother be granted temporary sole custody of J. and that the parties' parenting schedule be varied to an alternating weekend schedule, such that the father would have alternating weekends with J.;

3. Alternatively, if the court does not find the father in contempt, an order that the mother still be granted temporary sole custody and that the father have alternating weekend access;

4. During oral submissions, the mother also sought an order prohibiting the father from recording all of their conversations and access exchanges.

[10] On the evening of Sunday May 24, 2020, the mother took the child to the emergency at St. Joseph's Hospital after his fever spiked to 104 degrees, following medical advice. The mother immediately advised the father.

[11] According to the mother, the father reacted by calling the police and the Children's Aid Society and made serious allegations against her, including that she was "poisoning" the child and that she was unfit to care for the child. Once the child was returned to the father's care under the parenting schedule, he refused to return the child to the mother's care, creating unnecessary and harmful conflict, contrary to the child's best interests.

[12] The mother submits that the father refused to follow the parties' parenting schedule, as set out in the Final July 23, 2018 Order and kept J. in his care for a period of seven days while stating in writing his intention to unilaterally change the parenting schedule set out in the final order to a two/two/ five/five day ("2/2/5/5/") schedule.

[13] The mother submits that this was a deliberate and wilful breach of the Final Order and it has become part of a pattern of the father's difficult and aggressive behaviours towards her, as well as his refusal to follow court orders, to the child's detriment.

[14] The mother further submits that following J.'s serious illness requiring emergency medical intervention the father's conduct was aggressive, vitriolic and unreasonable towards the mother.

[15] The mother asserts that it is in J.'s best interests to reduce his parenting time with the father in order to minimize the escalating conflict created by the father's unreasonable behaviour, which is causing J. emotional harm.

[16] It is also the mother's position that this conflict will only continue to escalate as a result of the father's unreasonable behaviour, and that she is the better parent to make decisions regarding the child's care on both a temporary and final basis.

THE FATHER'S POSITION

[17] The father seeks an order dismissing the mother's motions and brings cross-motions for a finding of contempt against the mother. He also seeks a number of other orders regarding the parenting schedule and incidents of custody, as summarized below:

1. An order finding the mother in contempt of the July 23, 2018 Final Order regarding the parenting schedule and the orders dated July 30, 2019 and December 2, 2019 regarding information sharing. In particular, the father submits that the mother wilfully and deliberately breached paragraphs 2 and 3 of the Final Order dated July 23, 2018, paragraph 1 of the Final Order dated July 30, 2019, and paragraph 1(a) of the Temporary Without Prejudice Order dated December 2, 2019 by wilfully refusing to permit the father to meet and consult J.'s service providers, and by refusing to provide full access to information regarding service providers;

2. An order that effective immediately, J.'s doctor shall be Dr. Rahul Saxena;

3. An order that J.'s summer schedule will be a seven day "week about" equitable schedule;

4. An order that the parenting schedule set out in the July 23, 2018 Final Order be changed to a 2/2 5/5/ "week about" schedule;

5. An order that the July 23, 2018 Final Order be changed to include a provision that all non-school day transfers of J. between the parents be set out as described in much further detail in the father's motion.

[18] The father also submits that the mother has wilfully and deliberately breached the Final Order dated July 23, 2018 by refusing to return J. to his care on Monday May 25, 2020 and for the balance of the week until Friday, May 29, 2020.

[19] He further submits that the mother is in contempt of the July 30, 2019 Final Order, and in particular the provision that provides that "Both parties shall have full access to information regarding J. from all service providers (e.g. doctors, teachers, etc.) and be permitted to meet with those service providers."

[20] Specifically, the father states that on May 24, 2020, a telephone appointment was held between the mother and "an unknown practice resident" at St. Joseph's Hospital regarding J.'s health and that the father was not included in this telephone call pursuant to their Final Consent and the consent directive in place with J.'s family doctor.

[21] According to the father, as a result of the mother's conversation with the unknown service provider in which he was not involved, the mother made a major decision for J. on healthcare without the father's involvement or consent, that being the decision to take J. to the hospital emergency on the night of Sunday May 24, 2020.

[22] The father's submits that the mother's decision was not appropriate and that J.'s health was placed at risk by taking him to emergency without the father's consent.

[23] According to the father, the mother "deliberately excluded him from the phone consultation process that was put in place to facilitate adherence to our permanent court order permitting meetings with service providers—[the mother] acted in deliberate contempt of this order by excluding [him] from the consultation."

[24] It is the father's position that this is a pattern that the mother has routinely exhibited by not following orders or the consultation process.

[25] The father further submits that the mother has brought her motion to create a distraction and as retaliation for his response to her own poor judgment, behaviour and decisions made for J. against his advice and consent regarding the events that occurred between the parties in late May of this year.

[26] The father submits that the mother has serious health concerns and unhealthy attachment issues that detrimentally affect J. and any ability to come to an agreement on issues of access. Awarding the mother custody and health care decision making to the mother would be dangerous for J. and put his health at risk.

[27] It is also the father's position that the mother's actions and her inability to separate her own interests and the personal issues between them make it impossible to deliver appropriate healthcare for J. with his current family doctor.

[28] The father submits that in order to minimize the conflict between them in J.'s presence, it is in J.'s best interests to move to a "2/2/5/5/ week about" schedule.

[29] The father also raised a number of serious concerns about the mother's ability to provide appropriate medical care for J., including his allegation that she either deliberately or inadvertently administered improper medication (antibiotics) to J. which contributed to prolonging J.'s illness and placing his health at serious risk.

BACKGROUND

[30] The parties started cohabiting in July of 2012 and married on December 22, 2012. J. was born on August 6, 2014.

[31] The parties separated in 2017, although they disagree on the date of separation. The mother states that the separation was February 1, 2017 whereas the father states that the separation occurred on October 7, 2016. However, the father acknowledges in his Answer that the mother left the matrimonial home on March 14, 2017.

[32] The mother is a lab technician at Sunnybrook Hospital. The father is an IT senior project manager at the University Health Network.

[33] J. is the parties' only child together. The mother has a teenage daughter who primarily lives with her and an adult daughter in university from a previous relationship. The father has a teenage son from a previous relationship who lives with him fifty percent of the time in a 'week about' arrangement with his former spouse.

[34] The parties have been engaged in litigation regarding J. since November of 2017 when the mother first commenced her application. Notwithstanding the three comprehensive court orders, made on consent, governing the parenting issues between the parties since this litigation commenced, the conflict has not subsided and in fact, only seems to be escalating.

[35] Following the separation, the parties attempted to negotiate a separation agreement. On March 9, 2017, they entered into an interim without prejudice parenting agreement known as a "nesting arrangement" with each parent moving in and out of the former matrimonial home until the mother secured her own apartment.

[36] The parties continued to have difficulties regarding several issues that could not be resolved and the mother commenced this application.

SUMMARY OF LITIGATION HISTORY

[37] The first case conference in this matter was held on May 2, 2018, following First Appearance Court. On May 2, 2018, the parties entered into temporary without prejudice orders regarding child support, the child's school registration, and the parenting schedule. They also reached a final order regarding child support arrears.

[38] The parties also agreed to refer the issue of custody and access to the Office of the Children's Lawyer ("OCL") for a "section 112" clinical investigation and report. The matter was adjourned to June 25, 2018.

[39] On June 25, 2018, the court made a further referral to the Office of the Children's Lawyer after that office had closed their file because the father had not completed or delivered his OCL intake form. The parties negotiated a lengthier consent on that day regarding further parenting issues.

[40] On July 23, 2018, the parties entered a final consent regarding a number of parenting issues, including a regular shared parenting schedule for J., which is "Week One, Week Two" schedule on a "2, 2, 3, 3," basis, (drop off at school or at the other parent's home) as follows, commencing September 4, 2018:

	Monday	Tuesday	Wednesday	Thursday	Friday	Saturday	Sunday
Week One	Dad	Dad	Mom	Mom	Dad	Dad	Dad
Week Two	Mom	Mom	Dad	Dad	Mom	Mom	Mom

[41] The July 23, 2018 Final Consent Order also contained provisions regarding pick up and drop off, professional development days, statutory holidays, and other holidays.

[42] This Final Order continues to govern the parties' parenting schedule to date and continues to be in full force and effect.

[43] The issue of custodial decision-making, that is, whether there should be a joint custody or sole custody order, was still not resolved. The parties agreed that this issue would still be determined by the Office of the Children's Lawyer. The matter was then adjourned to August 28, 2018 to monitor the OCL's investigation.

[44] On August 28, 2018, the court learned that the OCL investigation had been delayed as the father was not comfortable signing what he described "blanket consents" that the OCL clinical investigator wanted both parties to sign regarding medical records. The father was also seeking orders that the parties' joint therapeutic counselling records and closed mediation records be produced to the clinical investigator.

[45] It was unclear what records the clinical investigator herself was seeking from the parties and the court invited both parties to have further discussions with the investigator, with permission to bring a motion for disclosure of records, if necessary.

[46] The matter was then adjourned to November 27, 2018 for a settlement conference, with a view that the OCL investigation would be completed by that time.

[47] On October 19, 2018, the father brought an urgent 14b motion seeking a number of substantive court orders, most importantly, he sought an order that if either parent cannot care for J. during his or her parenting time under the July 23, 2018 Final Order as a result of a medical condition or otherwise, then J. shall be placed in the care of the other parent "until such time as the parent with the medical condition has provided documentation from a medical professional confirming that he or she can care for J."

[48] In the same 14b motion, the father also sought an order for all of the mother's medical records during a period of hospitalization at the St. Joseph's Health Centre in Toronto, and her subsequent discharge.

[49] The father's motion arose because the mother became ill and was hospitalized in October of 2018. She was discharged on October 17, 2018. The father brought the motion two days after the mother was discharged from the hospital and recovering at home.

[50] This motion was not procedural and was opposed by the mother, so the court scheduled a hearing date on November 27, 2018 for argument, at the return of the settlement conference.

[51] The November 27, 2018 hearing was lengthy. The father's motion took all of the time allotted, so the settlement conference was therefore adjourned to January 14, 2019. I reserved my decision on the father's motion to that date.

[52] During the November 27, 2018 hearing, the court also learned that the Office of the Children's Lawyer terminated its involvement and filed a "Discontinued Report." The OCL clinical investigator, Ms Michelle Nagy, gives the following reasons for the termination at page 2 of the "Discontinued Report":

"Since this case was assigned [June 28, 2018], this clinical investigator completed initial interviews with each party and an observation visit in the home of Ms L. Both parties signed participation agreements and consented to proceed with the investigation. Mr. L. stated that he was participating in this process strictly to ensure that he would not lose custody of his son and wanted it noted that he was not a willing participant.

Issues related to booking meetings and obtaining collateral consents significantly delayed this investigation. On August 30, 2018, this clinical investigator requested that Mr. L. confirm before September 6, 2018 his willingness to participate in a scheduled observation visit between himself and J. on September 7, 2018. In addition, on August 30, 2018, this clinical investigator also requested confirmation of Mr. L.' willingness to sign requested consent forms.

To date, Mr. L. has not responded to any of the above stated requests as proposed by this clinical investigator and therefore, the OCL has no choice but to terminate involvement and file a Discontinued Report."

[53] The court subsequently learned that the father filed a Privacy Complaint against both Ms Nagy and the OCL with the Information and Privacy Commissioner for Ontario. The father introduced a copy of his complaint in these proceedings. In essence, the father complains that Ms Nagy was inappropriately using Gmail and personal non-secure devices to conduct OCL business and had provided him with a number of 'blanket type' consent forms to collect his personal, confidential and health information without modification, which he states is contrary to the FIPPA and PHIPPA legislation. The father believes Ms Nagy is incompetent.

[54] On January 14, 2019, at the return of the settlement conference and the delivery of my ruling on the father's motion, the father attended court, but stated that he was very ill, so he asked for an adjournment. The settlement conference and the delivery of my ruling was therefore adjourned to February 13, 2019, with the mother's consent.

[55] On February 13, 2019, I delivered my oral ruling on the father's motion. According to the transcript of the hearing on that day, I ruled the following:

"…with respect to the first two orders that Mr. L. sought, clearly, I am governed by the Children's Law Reform Act and in particular Sections 24 and 28 of the Children's Law Reform Act. The governing principle that I must be guided by is what is in the child's best interest. Simply put, what order is in J.'s best interest. And in this case, after reviewing all of the evidence, and there was extensive evidence filed by both parties, as well as hearing the submissions at the motion that was argued.

Certainly, the following facts I would say are not in dispute. Both parents love J. very much. J. has a meaningful and loving relationship with both parents. Both parents are good and loving parents to J.. Both parents have great difficulty communicating, and there is regrettably a high level of conflict between both parents in this case, which no doubt has an impact on J.

It is also not disputed that for reasons that are still not entirely clear to me, as a result of a physical condition, the mother was hospitalized in October, from October 6th to October 17th, 2018 at the St. Joseph's Hospital, and during that period of hospitalization she was unable to care for J. However, she did provide and had some support and care put in place. Initially when she was admitted to hospital through her family members, through her daughter, she had some support network.

I think in my view that given the conflict and inability for these two parents to communicate effectively in accordance with J.'s best interest, I have to balance both parents' ability to make appropriate arrangements for J. when they are unable to parent J. for either work, childcare or health reasons, but at the same time balance the other parent's ability to care for J. when a parent is not able to.

What I propose to do is to make an order that in the event that either parent is unable to care for J. during their parenting time for any reason including a medical reason, after a period of 48 hours, then the other parent should be, if that parent is able and willing, able to parent J. until the other parent is able to resume parenting pursuant to the final order. And why I made a 48-hour window is to avoid unnecessary conflict in J.'s best interest. If your hospitalization had only been 48 hours and you had certainly had appropriate care in place for J. during your parenting time, and if something God forbid happened to you along the same lines, I think a 48-hour window is reasonable. But anything beyond that, where it extends into a more considerably lengthy period, then the other parent should be notified and given an opportunity to parent during your parenting time. So that is the order that I have made, and I will provide you with a written endorsement for it." [Pages 2 to 4 of the transcript dated February 13, 2020].

[56] The settlement conference also proceeded on that day. The parties did not resolve the outstanding issue of custodial decision making, so a trial management conference was scheduled for May 9, 2019.

[57] On April 22, 2019, shortly before the trial management conference, the father filed a 14b motion seeking to adjourn the trial management conference to a date after September 2019 to permit him "more time to prepare his pre-trial conference materials on all financial matters" and to allow for the Information and Privacy Commissioner "to investigate the inappropriate behaviour of Michele Nagy and OCL privacy and content practices to adequately prepare pre-trial content related to Custody and Access."

[58] The father's request for a lengthy adjournment was denied and the court held a trial management conference on June 4, 2020. There were a number of outstanding disclosure issues, so I made directions regarding the exchange of documents, and failing an agreement on the disclosure requested, granted leave for a disclosure motion before me on August 6, 2019.

[59] On June 4, 2019, the matter was also placed on the Trial Assignment Court list of October 4, 2019 (for the trial weeks of December 2nd and December 9th, 2019).

[60] However, on July 22, 2019, the parties filed executed Minutes of Settlement and a draft Final Order in accordance with the Minutes. These Minutes settled all of the financial issues between the parties, as well as issues of access to and exchange of information with third party service providers for J.

[61] The Court reviewed and granted the final order on these issues. The August 6, 2019 motion date was also vacated at the parties' request and the matter was removed from the October 2019 Trial Assignment Court list at the parties' request.

[62] The only issue remaining between the parties at that time was the issue of custodial decision making. The mother sought sole custody, the father sought joint custody, or in the alternative sole custody. A further trial management and settlement conference was therefore scheduled for November 14, 2019.

[63] On November 14, 2019, that issue could not be resolved and the matter was once again placed on the January 9, 2020 trial assignment court list. A further settlement conference was scheduled for December 2, 2019.

[64] On December 2, 2019, both parties attended and after lengthy discussions outside of court, entered into a temporary without prejudice agreement, for a six month trial period, regarding custodial decision making for J.'s medical care, dental care, orthodontic care, extra-curricular activities, school, education and religion.

[65] The January trial assignment and trial dates were therefore vacated. If the six month trial period was not successful then the parties would proceed on June 3, 2020 for any pre-trial motions and would be placed on the August 11, 2020 trial assignment list.

THE DECEMBER 2, 2019 TEMPORARY 'WITHOUT PREJUDICE' AGREEMENT AND ORDER REGARDING CUSTODIAL DECISION-MAKING

[66] The parties' agreement, as incorporated into a Consent Order on December 2, 2019, creates a very detailed shared custody order, divided into four main areas:

1. Medical Care and J.'s Primary care doctor;
2. Dental and Orthodontic Care;
3. Extra-Curricular Activities; and
4. School and Education.

[67] The agreement is a comprehensive document totaling eleven pages. If all went well, then this consent would form the basis of a final order after the six month trial period. The court's endorsement on that day makes this clear, as was agreed by the parties.

[68] In each of the four categories above, the parents agreed on a number of specific items and a decision making process and in some instances provided that the parents would alternate who would have final decision making if there was a disagreement, somewhat similar to a "parallel parenting" order. For example, if the parents disagreed on a particular outcome the father would generally make the final decision regarding J.'s education and the mother would generally make the final medical decisions on some issues.

[69] The provisions of the decision-making order for medical care, which are relevant to the motions before me, are briefly summarized as follows:

1. Custody and decision making will be shared by the parents;
2. J.'s primary care doctor will be Dr. Dana Newman;
3. Both parents shall have full access to J.'s medical records;
4. Both parents may attend and participate in medical appointments as appropriate;
5. Both parents agree to share information on medical events where the other parent is not present;
6. Both parents will work together to coordinate schedules for appointments and to inform each other in advance of scheduled appointments;
7. If a change to J.'s primary doctor is required or desired by either parent, they will jointly discuss, but the mother will make the final decision on J.'s primary care doctor;
8. The mother shall make the final decision on all cost-free medical referrals by J.'s family doctor if the parties cannot agree;
9. The father shall make the final decision on all medical referrals that are not cost-free is the parties cannot agree;
10. Self-referred medical services such as counselling may not proceed if they are in conflict with J.'s care plan managed by his family doctor. The request for self-referred services for J., if disagreed, can only proceed if endorsed by J.'s family doctor;
11. If the parents disagree over "Routine Medical Decisions", then after discussion, the mother will make the final decision;
12. If the parents disagree over "Major Medical Decisions" that are imminent and not an emergency, after discussion and consultation, the mother will make the final decision on how to proceed if there is disagreement;
13. Both parents may make immediate emergency life or death decisions for J. as required if the decision of this nature needs to be made immediately and the other parent is not present and the decision cannot wait until the other parent is contacted for consultation.

THE CURRENT MOTIONS BEFORE THE COURT

[70] On January 15, 2020, the mother brought a 14b motion seeking leave for an early motion and trial assignment court date. According to the mother, the December 2, 2019 joint custody had already completely broken down.

[71] The father also brought a motion in response seeking to introduce as evidence all of the conversations that he had recorded between himself and the mother.

[72] The motions were scheduled for March 19, 2020, however, on March 17, 2020, regular court operations were suspended as a result of the Covid-19 global pandemic and the Ontario government's declaration of a state of emergency. All non-urgent matters were adjourned, including the mother's motion. In accordance with the Court's Covid-19 protocol, only urgent and emergency motions were being heard at that time. Unfortunately, the parties' motions were adjourned to a 'to be determined' date.

[73] On June 3, 2020, the mother brought a further 14b motion request, seeking leave to bring an urgent motion regarding the parenting issues following events that had occurred between the parties in late May of 2020.

[74] In her 14b motion, the mother stated that the request was urgent because the father was withholding J. contrary to the final parenting order dated July 23, 2018 and that the father had expressed his intention in writing to unilaterally force a new parenting schedule on the mother in clear breach of the July 23, 2018 Order.

[75] The father responded to the 14b motion request and also sought leave to bring an urgent cross-motion regarding similar issues. The father also alleged that the mother was withholding J. in contravention of the parenting order when J. was ill and that the mother was not complying with the consent order regarding medical decision making, placing J. at risk.

[76] The court granted leave to hear both motions on June 12, 2020.

PRELIMINARY ISSUES RAISED BY THE FATHER

[77] At the outset of the hearing, two preliminary issues raised by the father were addressed. First, the father advised that he intended to record the court hearing under section 136 (2) of the Courts of Justice Act. When asked why, the father stated that he did not "trust the court to be able to accurately capture all of the information required for [him] at trial." He went on to make a number of concerning statements about the courthouse's administration. He gave examples of what he alleged were missing documents, unissued or missing court orders and general incompetence. The father also alleged (incorrectly) that this court had not delivered a ruling regarding the right of first refusal for more than two years, as previously noted.

[78] After some discussion, the court permitted the father to audio record the proceedings for the sole purpose to assist him with note-taking, as permitted under section 136(2) of the Court of Justice Act. The Court also made an order prohibiting the father from publishing or distributing any part of the recording, including a prohibition of posting on any social media site, or otherwise, which will be elaborated on further in this ruling.

[79] The second preliminary issue raised by the father concerned his objections to what he inferred as the unethical and inappropriate behaviour of mother's counsel Ms Ryan by inappropriately communicating with court staff, including the trial coordinator.

[80] The court did not wish to take up any more valuable court time addressing the father's complaints about Ms Ryan and directed him to pursue other avenues. In so doing, it should be noted that in no way did the court make any findings of inappropriate behaviour on Ms Ryan's part, or that these complaints should be pursued by the father. Based on the court's observations, Ms Ryan has acted professionally throughout this proceeding.

[81] The father has also repeatedly raised how he is at a disadvantage throughout this court proceeding as a self-represented litigant and that he is not eligible for duty counsel and unable to afford a lawyer. The father is a sophisticated self-represented litigant. It should also be noted that the father has an agent/lawyer, Mr. Anthony Martin, who has assisted him throughout this case, although not in court and not on the record.

SUMMARY OF THE RELEVANT EVIDENCE ON THE MOTIONS BEFORE ME

[82] The Court reviewed and received the following evidence for these motions:

1. The mother's Affidavits, sworn June 3, 2020 and June 7, 2020, and exhibits attached;
2. The father's Affidavit, sworn June 8, 2020 and exhibits attached.

[83] The father's affidavit was unsworn and the mother's affidavits were sworn over video conference with her lawyer. The parties agreed that the Court would affirm both parties on the record at the outset of the remote hearing.

[84] The father's Affidavit was twenty-two single-spaced pages in length, not including exhibits, and greatly exceeded the limits on affidavits set out under this Court's Covid-19 protocol. However, after hearing submissions, the Court permitted the father to rely upon it as evidence in the motions. The Court also asked the father a number of questions of clarification during his submissions.

THE MOTHER'S EVIDENCE

[85] It is the mother's evidence that on Thursday, May 21, 2020, while she was at work, (J. was in the care of the father), she began to get a sore throat and a fever. As the mother works in a hospital, she reported this to the occupational health department and she was tested for Covid-19.

[86] On Friday, May 22, 2020, the mother's test came back negative and J. came back into the mother's care that day in accordance with the regular parenting schedule under the July 23, 2018 Final Order. However, J. was returned to the mother's care by the father with a sore throat and a fever.

[87] By Sunday, May 24, 2010, J. was much more ill and his fever had spiked to 104 degrees. The mother called Telehealth and spoke to a nurse practitioner. She was advised to take J. to emergency immediately.

[88] Before going to the Emergency, the mother called the father and advised him. The father did not agree and hung up on the mother. While at the Emergency, the ER doctor tested J. for Covid-19 and for strep throat. The doctor also advised the mother to continue to give J. Tylenol and to follow up with his family doctor. It is not disputed that the mother called the father after leaving the hospital emergency later that night and advised him of what transpired.

[89] The next day, May 25, 2020, J. was much worse. J. was supposed to be returned to the father's care at 8:00 AM that morning. However, J. woke up feverish, stiff and crying. The mother called the father and told him that J. was worse and did not want to get out of bed. He was in a lot of pain and continued to have a high fever.

[90] The mother advised the father that J. should stay with her on Monday and offered the father a make-up day on Wednesday May 27 (which was the mother's scheduled day with J. under the Final Order).

[91] The father refused. The mother then invited the father to come over and spend time with J. in her home. The father did come over and see J.. The father told J. it was "Daddy's day", that he had the couch set up for him and tried to convince him to get out of bed.

[92] J. got more upset, at which point the father left. The father then called the police who attended at the mother's home for a "wellness check." The police advised the mother that they were not going to remove J., but they wanted to make sure that he was safe.

[93] On Tuesday, May 26, 2020, J.'s Covid-19 test came back negative. J. also started antibiotics (amoxicillin) on that day for his strep throat. The mother encouraged J. that he needed to go to his father's home even though he was still sick. The mother called the father and told him about her conversation with J. By this time, the mother was feeling very sick herself. The mother asked the father to pick up J. because she was feeling ill.

[94] The father refused. He told the mother that he would not be picking up J. and insisted that the mother drive him to the father's house. The mother advised the father that she was too sick. The mother invited the father multiple times to pick up J. from her home.

[95] The father refused and did not pick up J. on Tuesday, Wednesday or Thursday (despite being offered those days).

[96] On Wednesday, May 27, 2020 (one of the days offered by the mother to the father as make up time for the missed Monday), the mother called the father to advise him that the right side of J.'s neck had a very swollen node. She told the father that she was going to call the family doctor to get an appointment. The father hung up on her.

[97] J.'s doctor, Dr. Dana Newman, was booked and unavailable so the mother spoke to the clinic nurse. The mother was advised that J. needed to see a doctor and since J. still had a fever, the current Cvid-19 protocols dictated that he had to go the Emergency. The mother immediately called the father to advise him of this. The father hung up on the mother again. The mother took J. to Emergency for a second time that week in accordance with medical advice.

[98] On Thursday, May 28, the mother again called the father and updated him on J.'s health and how he had been doing over the last day. This triggered a series of aggressive and hostile emails from the father, some of which the court reviewed.

[99] On Friday May 29, 2020, the mother was feeling better and brought J. to the father as per the regular parenting schedule. She sent along J.'s amoxicillin. The mother also offered the father a day of make-up time for the Monday that he had missed.

[100] In a further email that evening, the father again wrote to the mother and advised her that " I will return [J.] to you on Monday once you provide a note from a medical professional clearing you to care for J.. This was a requirement from the verbal order from 2018 when you get sick."

[101] The mother refused and advised that there was no such verbal order. The father called the Children's Aid Society. The mother subsequently learned that the father had called and reported the mother to the Children's Aid Society previously on Tuesday, May 26, 2020 when J. was very ill and after she had taken him to emergency. This was the second time that week that the father had called the Children's Aid Society and reported concerns about the mother.

[102] Mr. Joji John, an intake worker with the Children's Aid Society met with the mother in her home on Wednesday June 3, 2020 as part of his investigation. Based on the meeting with the intake worker, the mother learned that the father had made a number of very serious allegations about her care of J. to the Society, including the following allegations:

1. The mother has health issues that are affecting her ability to parent, resulting in bad decisions and the father fears for J.'s safety;
2. The mother's "unnecessary ER visits" for J. were potentially exposing J. to COVID-19 and/or other illnesses;
3. The mother is overdosing the child on amoxicillin.

[103] On the evening of Sunday, May 31st, the father wrote to the mother by email and advised her that he would not be returning J. until the morning of June 3rd, 2020 and further advised her that from that point onward, he would not be following the court ordered schedule. He states the following in his email, which is an excerpt from a much lengthier email:

"I am keeping J. until Wednesday. I have a variety of reasons and happy to discuss. Overall it's to protect J.'s best interests and a more appropriate schedule for him so that I can be sure he is reasonably recovered from the events of the past 10 days. J. is happy with this and looks forward to 5 days with you starting Wednesday. I propose you then take his Wednesday through to next Monday and starting Monday June 8 that I have J. Mondays and Tuesdays, you Wednesdays and Thursdays and we continued to rotate weekends. I do not require any trades back for the two days you had last week. Alternatively, I would accept a 7 day on then off schedule (you had the last 7 days endling last Friday. I can keep him til this Friday and we rotate every Friday). I think that 7 days may be too drastic a change but it would be better than what we had to now."

[104] According to the court ordered parenting schedule, J. was to be returned to the mother's care on Monday June 1, 2020 at 8:00 AM. However, the mother did offer the father a day of make-up time until Tuesday June 2nd at 8:00 AM for the Monday that he had missed the week before on May 25th.

[105] On Monday June 1st and Tuesday, June 2, 2020 the father did not return J. to the mother's care.

[106] On Wednesday June 3, 2020, the father returned J. to the mother's care at 10:30 AM, however, he refused to return J.'s amoxicillin, (which was J.'s last dose) and told the mother that he would attend her home at 7:30 PM to administer the last dose.

[107] The mother disagreed. The mother arranged for an appointment with J.'s family doctor at 3:30 PM. It was a three way conference call between the doctor at the clinic and the parents. The mother advised that the father would not give her the last dose. The doctor advised the parties that J. is to get the last dose. The father then asked the doctor if it was possible that J. was being given something that is making him sick and stated that he wanted a "tox screen" done on J.. The father implied, as he has done with the child protection worker, that the mother was poisoning J.

[108] Later that day, the mother attended at the father's home and asked him for J.'s medication. The father refused and advised the mother that the only way J. would get it was if he came by the mother's home at 7:30 PM and administered it himself. The father told the mother that he did not trust her and needed the "two bottles as evidence."

[109] The father wrote the following in a lengthier email to the mother on Tuesday, June 2, 2020:

"…I have decided for tomorrow that I will keep his medicine and come to your house at 730 to give it to him (you can bring him down and it will take 15 seconds). It would also be acceptable for me to keep him until he has this dose but that counters an appropriate schedule interest. Overall with his interests in mind this would be best. If you are not ok with this and do not want me to administer then I will assume the alternative risk of him not getting it at all. I have decided that it is not acceptable risk to give you back the meds and the bottles.."

[110] At 7:30 PM that night, the mother and J. went for a walk. The mother did not want to be at the home when the father arrived and expose J. to another serious conflict. While they were having a walk, the father left two message for her informing her that he was at her home. The mother assumed that the father would leave the bottle of amoxicillin there.

[111] When the mother and J. returned home at approximately 8:15 PM, the mother found the last dose of J.'s medicine in a small medicine cup, left uncovered on her front porch, two feet from the sidewalk. The father did not leave the bottle. J. did not get his last dose of medicine.

[112] Throughout this time, the mother also received a number of lengthy and hostile emails from the father, either implying or directly suggesting that she was putting J.'s health at risk.

THE FATHER'S EVIDENCE

[113] As noted, the father's evidence is very lengthy and detailed and set out in a 22 paged single-spaced affidavit, not including exhibits. I have summarized the relevant evidence as follows.

[114] It is the father's evidence that on Wednesday, May 20th, J. was picked up by the father from the mother's home at 4:30 PM in accordance with the regular schedule. There were no reported issues or health concerns but that J. was tired and upset. J.'s behaviour seemed a "bit off", and he went to bed early.

[115] On the following morning, J. seemed "his usual self" in the morning, but by 5:30 PM he was experiencing "extreme fatigue". He had no fever but he did not eat his dinner and again went to bed early.

[116] The father called the mother that evening to report J.'s behaviour. According to the father, the mother told him that she had been very sick and off work with Covid-like symptoms. She had been tested for both Covid and strep throat and was awaiting the results.

[117] On May 22, 2020, J. woke up with a headache and a mild fever. The father administered Advil. After hearing from the mother that her Covid test was negative, the father returned J. to the mother's care on that day at 4:30 PM, in accordance with the regular schedule.

[118] According to the father's affidavit, at the time, he believed that J. was stable, had a mild infection that could be managed throughout the weekend by the mother using Tylenol and Advil under the direction of their family doctor. He was also hopeful that the mother was better from what was last reported to him.

[119] On Saturday May 23, 2020, the mother called him and requested that he bring over the Advil in the flavour that J. liked because he had a mild fever and was refusing her flavoured Advil. The mother also reported to the father that she was not feeling any better and that she could not drive or come down the stairs.

[120] The father deposed that he "started to worry that J. was likely to get sicker, his mother is sick and it was my hope that his symptoms would be contained and nothing major would be needed until Monday when he returned to me." However, he also believed that "J. had a mild fever and he was not taking his meds because he did not feel sick enough yet for meds" and that the "mother was not concerned as she was willing to wait for a preferred flavour and was not vigilantly giving the prescribed medicines."

[121] According to the father, "In [his] experience when J. is sick and [the mother] is sick either J.'s condition gets under reported and under treated or the opposite, over reported/exaggerated and over treated which makes it difficult for me to truly know how he is when he is with his [mother]—In all cases data provided is inconsistent in content and method of delivery, adding to the confusion."

[122] Based on the father's evidence, he did not bring over J.'s preferred flavour of Advil. The next day, on Sunday May 24, 2020, the father deposed that he had no contacts or updates from the mother during the day but he did receive three phone calls from her without messages.

[123] On the evening of Sunday, May 24th, the father received a message from the mother that J. was really sick and that she was taking him to the emergency at 6 PM. The father called the mother back right away and told her that he disagreed with this and that he would take J. to the "Just for Kids" Medical clinic on Monday morning when he picks him up under the regular schedule. The mother told him that "it can't wait" and that based on a telephone consultation with "an unnamed Doctor who was not J.'s doctor… the decision was made to immediately take J. to the ER."

[124] According to the father, "[the mother]" deliberately excluded him from the phone consultation that was put in place to facilitate adherence to our permanent court order permitting meetings with service providers—[the mother] acted in deliberate contempt of this order by excluding [him] from this consultation."

[125] At 11 PM the same evening, the father received a phone message from the mother advising that they had just returned from the hospital emergency, that J. was sick and exhausted and that she would advise the father in the morning what time he could pick up J.. However, the mother called the father again at 3:30 AM to report that J. was "really sick" and that he was throwing up. She was thinking about returning to the hospital, however, J. had returned to bed and stopped throwing up. The father asked the mother to call him in the morning.

[126] The next day, the mother called the father at 11:00 AM and advised him that he could come and pick up J.. The father arrived at approximately 1:00 PM and called the mother from the sidewalk and asked her to bring J. down. The mother advised the father that J. was refusing to leave and told the father to come and get him.

[127] The father did not want to enter the mother's home because he "now suspected that this was going to be a difficult and prolonged transition", however, he felt that he had no choice. The father described that when he went to J.'s room, he was crying and in bed. According to the father, when he tried to get J. to come with him, J. cried louder because the mother said, "he doesn't want to go so go ahead and make him."

[128] When asked by the court during his submissions to describe how J. looked at this time, the father stated that J. "looked deathly ill." He acknowledged that J. was very sick.

[129] The parties exchanged words and the father left, advising the mother that he was going to wait five minutes outside her home for the mother to bring J. down to him.

[130] The father waited five minutes and then called the police to report what had happened. The father advised the police and the mother that he was going to return at 4 PM that same day to retrieve J..

[131] The father returned to the mother's home at 4 PM and knocked on her door. When the mother advised him that that J. was not coming and according to the father told him to "f..ck off", the father immediately called the police and made a second report.

[132] The father remained in his car outside of the mother's home and waited for the police to arrive. When they arrived, the father showed the officers the family court order confirming that "today was [his] assigned access day" and asked them to conduct a wellness check to see if J. was okay.

[133] The father explained in his affidavit that he involved the police a second time that day "knowing they would go and talk to J.". He "weighed any negative impact of that event against: a. J.'s health—at this time I suspected something was going wrong with his health; b. Third party documentation of events -at this point I am in a position of having to document events with as many sources as possible and to defend myself in court against false allegations."

[134] The father further expanded on this during the hearing. When asked by the court why he called the police, he stated that he was "concerned about J.'s safety and whether he was effectively being able to be cared for, based on the mother's illness and her ability to take care of herself, let alone him."

[135] Following these events, the father acknowledged that the mother called him on multiple occasions during the next three days (Tuesday, May 26th, Wednesday May 27th, and Thursday May 28th) to pick up J. and he refused. This was the father's regularly scheduled parenting time as well as an additional Wednesday to make up for the missed parenting time on Monday May 25th.

[136] The father further acknowledged that the mother asked the father to pick up J. because she was too sick to drive to his home to deliver him. According to the father, he was not going to entertain any more visits to the mother's home because they "were too damaging to J. and that the reasons given by the mother that she cannot drive or is too sick to drop off…are completely unreasonable and additional behaviours intended to exert control—if the mother is well enough to care for J. she should be well enough and able enough to drop him off."

[137] The father asserts that as a result of J. remaining in the mother's care from Tuesday morning until Friday morning, (when the mother was well enough to drive J. to the father's home), the mother was in contempt of their final court order.

[138] The father deposed that on the afternoon of Tuesday, May 26, 2020, he consulted with his lawyer on legal options based on the events over the past few days and decided at that time that there was no value in legal action.

[139] However, later that same day at 5:30 PM, the father called the Children's Aid Society. According to his affidavit evidence, the father called the Society to "pursue supports". He provided background information to the child protection worker on the events of the past few days, and the mother's refusal to drive J. to his home for his parenting time and "after some discussion we landed on proceeding with an assessment call with someone (calls with each parent) to determine if there was any possibility of getting resource support for J. on the immediate and ongoing issues that we were having."

[140] When asked by the court during the hearing to clarify why he called the Children's Aid Society, the father stated because the mother was sick and in his opinion, too sick to take care of J. who was also sick. According to the father, the mother had delayed providing her symptom information and tried to hide it and downplayed her symptoms while J. was with him.

[141] When the father finally acknowledged that he had in fact reported child protection concerns about the mother to the Society, he was asked by the court why he believed that J. was at risk in his mother's care. According to the father's response, the mother "had a pattern of being too sick to take care of J. in the past…She's ill but doesn't call in sick; works the night shift, then sleeps during the morning and J.'s on his own.. And in this case, you know, not only is she too ill to appropriately care for him; he's sick as well."

[142] The father confirms in his evidence that mother contacted him on the morning of Wednesday May 27. According to the father, he received a text from the mother stating, "Emergency Call Me". The father called the mother and she advised him that J. had a swollen lymph node and she was taking him to emergency.

[143] The father disagreed with this decision and told the mother that he did not think another ER visit was warranted. The father was aware that the mother had a telephone call with what he described as "an unnamed nurse" [from Telehealth] who advised after consultation to take J. to the emergency.

[144] According to the father, as set out in his Affidavit, "This is another example of [the mother] acting in contempt of our order for information sharing and access to appointments and refusal to our agreed to process... Had I been included in the discussion I would have asked for a video consult at most considering the week J. had been through unnecessary hospital visits."

[145] The father called J.'s family doctor, Dr. Dana Newman to ask for an appointment. According to the father, at this point, he had not heard from her directly on J.'s prognosis and events were continuing to be conducted in ER without my involvement and not appropriate for J.."

[146] The parties had a telephone conference call with Dr. Newman on Thursday May 28 at 4:00 PM, as requested by the father. The father states the following about the call:

" J. now had symptoms for one full week and this was the first time we heard from his doctor. I tried to get clarity on the situation from the doctor, specifically on concerns with consent directives and lack of video call instead of ER visits/ I was spoken over by [the mother] with defensive responses and interruptions-Dr. Newman concluded by saying she was busy. I didn't get answers, the call ended."

[147] The father confirms that the mother drove to his home on Friday, May 29th and dropped J. off for the father's weekend, in accordance with the schedule.

[148] He further acknowledges that after the mother returned J. to his care he called the Children's Aid Society again. According to the father, when asked, he called the Society because he was concerned that the mother either negligently or intentionally improperly administered J.'s antibiotics for strep throat.

[149] It is the father's evidence that when the mother dropped J. off at his home on the morning of Friday, May 29, 2020, she provided the father with the antibiotics that J. had been prescribed for his strep throat in an open bottle of medication that contained inadequate dosages for the weekend.

[150] According to the father, the mother had somehow either lost or administered more than prescribed to J. and that he needed more dosages. The mother dropped off the further bottle of antibiotics to the father on Sunday morning given the father's report to her that that he had ran out of dosage for J.

[151] It is the father's evidence that he identified a further error with the second bottle and that it too was missing an additional 12 ml of antibiotics (the first bottle, according to the father was missing 18 ml).

[152] The father reported this to the Children's Aid Society worker as a child protection concern. During the hearing, when asked by the court if the father believes the mother either intentionally or negligently mishandled J.'s antibiotics, the father replied, "Yes, I absolutely do." He stated it could be either. It could have been a mistake because she wasn't feeling well but it could have been intentional "as a way to try to accuse him of something".

[153] The father later stated, when asked, that he did not think that the mother would intentionally hurt J. but he believed that she intentionally split the dosage as a means to control access and perhaps a mistake was made and there was some spillage.

[154] On June 3, 2020, during one of the parties' conference calls with J.'s doctors during this period, the father acknowledged that he asked the doctor for a "tox screen" for J. He does not dispute this.

[155] The father deposed in his affidavit that after this series of events, he made the decision on the evening of Sunday May 31, 2020 not to return J. and to keep him in his care, contrary to the Final Order, "until his antibiotic was administered/until his illness was stabilized/to prevent another ER visit." J.'s last dosage would be administered on Wednesday, June 3, 2020.

[156] The father acknowledges sending the mother an email that evening outlining his concerns and what he intended to do. According to the father, in his email, he proposed that "the current schedule disruption could be used as a springboard to a summer schedule and changes that are in J.'s interest."

[157] The father also confirms that in a further email that evening, the wrote to the mother and advised her that " I will return [J.] to you on Monday once you provide a note from a medical professional clearing you to care for J.. This was a requirement from the verbal order from 2018 when you get sick." According to the father, this was one of the conditions of the "right of first refusal" order that I had made in my oral ruling of February 13, 2019.

[158] The mother then, through her counsel, served the father with her motion for contempt.

[159] On Wednesday, June 3, 2020, J. had one dose of antibiotics left after his morning dose. At this time, the father contacted the mother to confirm that he "would be dropping J. to her on this day at 1030 AM and that he had one dose left." However, the father did not give the mother the last dose.

[160] The father confirmed that he wanted to administer the last dose to J. and advised the mother that he would come to her home at 7:30 that evening to do so. The mother refused and "declined all options" according to the father, so he dropped off the last dose on the mother's doorstep with the empty medicine bottles at 7:20 PM that evening. The father does not dispute that J. did not get his last dose of antibiotics due to the condition on which the medication was left on the mother's doorstep.

THE LAW AND GOVERNING PRINCIPLES

1. Contempt in Family Law Cases

[161] Rule 31 of the Family Law Rules, O. Reg. 114/99 governs contempt of court and when contempt motions are available in family court proceedings before the Ontario Court of Justice.

[162] Rule 31. (1) provides that an order, other than a payment order, may be enforced by a contempt motion made in a case in which the order was made even if another penalty is available. [Emphasis added.]

[163] Rule 2 of the Family Law Rules defines a "payment order" as an order requiring a person to pay money to another person and includes a support order and a support deduction order, among a number of other types of orders listed.

[164] The Notice of Contempt Motion (Form 31) shall be served together with a supporting affidavit, personally on the alleged contemnor, in accordance with Rule 6(4) of the Rules. (See Rule 31(2)). [Emphasis added.]

[165] The supporting affidavit may contain statements of information that the person signing the affidavit learned from someone else, but only if the source of information is identified by name, that the person signing the affidavit believes the information to be true and that "the information is not likely to be disputed". (See Rule 31(3) and Rule 14(19)).

[166] The test on a motion for contempt is set out in A.G.L. v. K.B.D.. In order to find a person in contempt, the court must make the following findings in relation to each alleged breach of an order:

1. The relevant order must be clear and unambiguous and not subject to interpretation. Implied terms cannot be read into the order;

2. The respondent (on the motion) must know of the order's existence at the time of the alleged breach;

3. The respondent must intentionally have done, or failed to do, anything that was in contravention of the order. The act stated to constitute the contempt must be wilful and deliberate, not accidental;

4. The contempt must be proven beyond a reasonable doubt;

5. The respondent was given proper notice of the terms of the order.

[167] In Hefkey v. Hefkey, 2013 ONCA 44 (Ont. C.A.), the Ontario Court of Appeal set out the following principles regarding the use of contempt in family law cases:

1. The civil contempt remedy is one of last resort;

2. A contempt order should not be granted where other adequate remedies are available to the aggrieved party;

3. Great caution should be exercised when considering contempt motions in family law cases;

4. Contempt findings should be made sparingly and only where conferences to resolve problems or motions for enforcement have failed.

[168] The onus is on the person alleging contempt to prove it beyond a reasonable doubt. See Fisher v. Fisher; Einstoss v. Starkman; Prescott-Russell Services for Children and Adults v. G. (N.). Any doubt must be exercised in favour of the person alleged to be in breach of the Order. See Prescott Russell Services for Children and Adults, supra.

[169] Hearsay evidence is not admissible on a motion for contempt. See Stupple v. Quinn. If there is a conflict as to material facts in the affidavits, there should be a viva voce hearing. The standard is quasi-criminal. See Fischer v. Milo, 2007 CarswellOnt 6144 (Ont. S.C.J.).

[170] There are situations where the reasons for a breach may provide a legitimate excuse. In order to make out a defense, however, the party asserting it needs to have a reasonably held belief that there was a good reason to disobey the order. Thus, there is both a subjective and objective component. Brown v. Walowski, 2013 ONCJ 473. Part of the test, therefore, is that notwithstanding that a parent has a subjective belief that access cannot take place, if the belief is not objectively legitimate, a denial of access may amount to contempt. See: R.(K.A.) v. S.(B.T.), 2005 ONCJ 44.

[171] The courts have repeatedly stressed that great caution must be exercised when considering contempt motions in family law proceedings. In J. v. J., 2016 ONSC 3466, Justice Deborah Chappel provided the following summary of circumstances regarding the use of contempt in family court proceedings:

a. It ultimately remains a matter for the Court's discretion;

b. Because of its seriousness and quasi-criminal nature, it must be used cautiously and with great restraint;

c. It cannot be reduced merely to a mechanism for enforcing judgments;

d. It should be used sparingly and as a measure of last resort where there are no other adequate remedies available;

e. It is reserved for cases involving defiant conduct that is at the most significant end of the spectrum and where it appears to be the only reasonable means of sending a message to a litigant that court orders cannot be flaunted;

f. The complex emotional dynamics involved in family law disputes and the desirability of avoiding further escalation of the conflict between the parties are additional factors that prompt a cautious approach.

[172] In determining an appropriate sentence in the present case, considerations have included the following:

(a) The available sentences;

(b) The proportionality of the sentence to the wrongdoing;

(c) the similarity of sentences in like circumstances;

(d) The present of mitigating factors;

(e) The presence of aggravating factors;

(f) Deterrence;

(g) The reasonableness of a fine;

(h) The reasonableness of incarceration.

2. Legal Considerations regarding Custody and Access and the Law regarding the Variation of Final Custody and Access Orders

[173] In this case, as noted, there are three comprehensive parenting orders entered into on consent by the parties governing their custody and access arrangements.

[174] Two of the orders are on a final basis, including the order setting out the parties' shared residential schedule.

[175] The order governing the shared custodial decision making (or joint custody) was made on a temporary "without prejudice basis" on December 2, 2019, incorporating the parties' consent.

[176] The father is seeking a temporary variation of the Final Order dated July 23, 2018, governing the parents' residential schedule. The mother is also seeking a temporary variation of the Final Order dated July 23, 2018 regarding the parents' residential schedule.

[177] In addition, the mother is seeking to change or replace the temporary "without prejudice" order dated December 2, 2019 regarding shared or joint decision making order (joint custody) with an order of temporary custody in her favour.

[178] Any parenting orders that I make must be determined in accordance with the best interests of the child. Sub-sections 24(1) and 24(2) of the Children's Law Reform Act, R.S.O., 1990, c. C.12 ("the CLRA") set out the "best interests" test and the factors that a court must consider when determining what is in a child's best interests.

[179] The best interests of the child must be ascertained from the lens of the child rather than from the parents' perspective. Parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child. See: Young v. Young; Gordon v. Goertz.

[180] The variation of custody and access orders, even temporary orders, is governed by section 29 of the Children's Law Reform Act. A closer scrutiny of the legislative wording of this section is worthwhile.

[181] Section 29 does not say that a court may vary an order if there has been a material change in circumstances. What it says is that a court shall not vary an order unless there has been a material change in circumstances. This difference is significant. A change in circumstances is not sufficient. The change must be "a material change". This means it must be "substantially important". McIsaac v. Pye 2011 ONCJ 840.

[182] It is a longstanding legal principle that absent evidence of a material change in circumstances requiring an immediate change, the status quo is ordinarily to be maintained until trial: Niel v. Niel, 28 R.F.L. (Ont. C.A.), Grant v. Turgeon, and Kimpton v. Kimpton, 2002 CarswellOnt 5030 (Ont. S.C.J.).

[183] Where a party is seeking a temporary variation of a final order, the test is more stringent and both parents bears a heavier onus.

[184] In Innocente v. Innocente, 2014 ONSC 7082, Justice Gauthier summarized the applicable law regarding the temporary variation of final custody and/or access orders as follows at paragraph 45 of that decision:

"[45] In those cases where a temporary or interim variation of a final order has been granted, the courts have found what are in my view, exceptional circumstances:

(a) To prevent undue hardship;

(b) Where the failure to make the interim order would be incongruous or absurd; and

(c) Where there is a pressing and immediate urgency." [Emphasis added.]

[185] In F.K. v. A.K., 2020 ONSC 3726, Justice Alex Pazaratz held that the temporary variation of a final parenting order requires a court to consider the following considerations, in addition to the material change in circumstances test, when considering the request for a temporary variation of a final parenting order:

"a. In all instances, courts must exercise caution before changing an existing arrangement which children have become used to.

b. This is especially the case where the existing parenting arrangement has been determined by way of court order. The starting point is that court orders are presumed to be correct. Montgomery v. Montgomery; Gordon v. Gordon 2015 ONSC 4468 (SCJ); Oickle v. Beland 2012 ONCJ 778 (OCJ).

c. And the level of required caution is further heightened if the court is being asked to change a final parenting order on a temporary basis. If the general rule is that we are reluctant to change temporary orders pending trial, then it goes without saying that we should be even more reluctant to change final orders pending determination of the issue.

d. Although counsel did not raise jurisdiction as an issue, I am satisfied the court has the authority to grant a temporary variation of a final order -- in the appropriate circumstances. Stokes v. Stokes 2014 ONSC 1311 (SCJ); Huliyappa v Menon 2012 ONSC 5668 (SCJ); Clements v Merriam 2012 ONCJ 700 (OCJ).

e. But the evidentiary basis to grant such a temporary variation must be compelling.

f. The court must start with the aforementioned two-part material change in circumstances analysis.

g. But for a temporary variation, the court must also assess whether the changed circumstances have created a situation of actual or potential harm, danger, or prejudice for the child; of such nature or magnitude that immediate rectification or correction are required to safeguard the child's best interests.

h. The onus on the party seeking a temporary variation is onerous. They must establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child's physical and/or emotional well-being. They must establish that the situation is so serious and potentially harmful that any delay in addressing the problem is likely to continue or exacerbate actual or potential physical and/or emotional harm for the child.

i. The court must be satisfied that the child's best interests require an immediate change – to reduce the detrimental impact of unacceptable negative dynamics or behaviours.

j. The court must be satisfied that the existing order has come to be demonstrably contrary to the best interests of the child – and that the proposed temporary variation is urgently needed to shield the child from likely future harm.

k. Implicitly, the court must have a level of confidence that the temporary variation would not only remove the child from a negative situation, but that the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation.

l. And given the qualitative difference between untested affidavit materials on a motion compared with a more thorough evidentiary analysis at a trial or oral hearing, the court must be satisfied – on a balance of probabilities – that a clear and compelling need to make an immediate change has been established.

m. On a temporary motion, the status quo will have a strong gravitational pull – until the moment when the court determines that a child is in peril. After that, priority switches to rescuing and protecting the child. And the pace of correction is directly related to the magnitude of the child's current exposure to harm."

3. Legal Considerations regarding the December 2, 2019 Temporary 'Without Prejudice' Order

[186] As noted, this consent order was made on a temporary "without prejudice" basis only. It is not disputed that the December 2, 2010 without prejudice consent order was specifically contemplated to be for a six month trial period only. It is also not disputed that it broke down within a few short months of the parties entering into it.

[187] The law is clear that, given the nature of temporary without prejudice orders, a material change in circumstances does not necessarily have to be demonstrated by the party requesting a change to a without prejudice order (unlike the test for a temporary change of a temporary or final order).

[188] The proper characterization of a hearing of this kind of motion is not as a request for a variation or change of a temporary order requiring a demonstration of material change, but rather a determination on the merits of the original motion based on the evidentiary record before the court.

[189] However, notwithstanding the above, the court must still be very mindful of the fact that temporary "without prejudice orders" that have a lengthy status quo can operate in the same way as a temporary order. As Justice Ellen B. Murray stated in Copeland v. Perreault, 2007 ONCJ 217: "The fact that a court can make an order with terms different than that of an "interim-interim" order with respect to custody and residential arrangements of a child does not mean that it should." The principle that a longstanding status quo should not be disturbed before trial in the absence of important or compelling reasons that change is necessary in a child's best interests still stands and must be applied.

ANALYSIS AND DISPOSITION

The Disposition of the Contempt Motions

[190] For the reasons that follow, both parties' contempt motions are dismissed.

The Father's Motion for Contempt

[191] The father alleges two grounds of contempt against the mother:

a. First, that the mother wilfully and deliberately breached paragraph 1 of the Final Order dated July 30, 2019 which provides that "Both parties shall have full access to information regarding J. from all service providers (e.g. doctors, teachers, etc.) and be permitted to meet with those service providers."

b. Second, that the mother wilfully and deliberately breached the Final Order dated July 23, 2018, by failing to adhere to the residential schedule set out in paragraph 2 of that Order, and in particular her deliberate breach of the Order on May 25, 25, 27, and 28, 2020 by refusing to return J. to the father's care during this time period.

[192] The mother clearly had knowledge of the Final Orders, dated July 23, 2018 and July 30, 2019. They were both made on consent based on the Minutes of Settlement. Notice was given to the mother by the father regarding the terms of the Orders and the alleged breaches, although I note that the mother was not personally served with the motion for contempt in accordance with Rule 31(2) of the Family Law Rules.

[193] However, in applying the correct legal test for a finding of contempt, I unable to make findings of contempt. I am unable to find that the Orders were clear and ambiguous and that the mother deliberately and wilfully breached the Orders.

[194] The father's position that the mother deliberately and wilfully breached the final order by excluding him from access to information and consultation on two occasions when she took J. to hospital emergency during urgent circumstances based on medical advice is an unreasonable interpretation of the terms of the order.

[195] It is not disputed that J. was seriously ill on the evening of Sunday May 24, 2020 while in the mother's care. His temperature had risen to 104 degrees. The mother called Telehealth and was advised to take J. to emergency. She then immediately called the father to advise him of the situation before taking him to emergency.

[196] It is unclear how advising a parent before taking a child with a serious fever to emergency would constitute contempt of the right to full access to information from all service providers, as the father asserts.

[197] During the hearing, the court directly asked the father if he was suggesting that he should have been conferenced into the call with Telehealth while J.'s fever was rising in order to have a discussion about whether or not the child should be taken to emergency. The father clearly affirmed that this was his position and that paragraph 1 of the July 2019 Final Order "absolutely" applied to emergencies.

[198] When asked by the court what the father would do if he had been conferenced into the call with Telehealth and he had disagreed with medical advice or a decision to take J. to emergency, the father stated that he would not disagree if he was allowed to have "comprehensive discussions on symptoms, on options" and that after he felt that he had been heard then he would accept the decision, based on doctor's advice. If he disagreed, then he would ask that his disagreement be documented in the child's medical record. It is unclear how long these "comprehensive discussions" would last while the child's fever is spiking at 104 degrees.

[199] The father is reading terms into the Order that do not exist. Further, the father's interpretation also directly contradicts the provisions of the parties' subsequent December 2, 2019 Consent Order which provides that, "Both parents may make immediate emergency life or death decisions for J. as required if the decision of this nature needs to be made immediately and the other parent is not present and the decision cannot wait until the other parent is contacted for consultation."

[200] The second alleged breach raised by the father involves the mother's adherence to the parents' residential schedule as set out in the Final Order of July 23, 2018. The father alleges that the mother deliberately and wilfully breached the Order by refusing to facilitate J.'s transfer to the father's care on Monday, May 25th, the father's assigned parenting day, and for the following three days.

[201] Again, it is not disputed that J. was seriously ill. The mother was also ill. The father went to J.'s bedside after receiving a call from the mother advising him that J. was very ill and that she was too ill to drive. According to the father's description of J., when asked by the Court during submissions, J. looked "deathly ill". He was crying and refused to get out of bed.

[202] It is also not disputed that for the next three days, the mother repeatedly called the father and asked him to come and pick up J. because she was too ill to drive him to the father's home. During submissions and in his own evidence, the father acknowledges this on a number of occasions.

[203] Notwithstanding this, the father refused to pick up J. from the mother's home and considers the mother's actions a wilful and deliberate breach of the order designed to frustrate his access.

[204] Again, this is a patently unreasonable position. I do not accept, based on the evidence before me, that the mother was deliberately refusing access or denying contact, in fact, the evidence demonstrates quite the contrary.

The Mother's Motion for Contempt

[205] The mother alleges one ground of contempt against the father:

a. That the father wilfully and deliberately breached the residential schedule set out in the Final Order dated July 23, 2018 which provides a regular shared parenting schedule for J. based on "Week One, Week Two" schedule on a "2, 2, 3, 3," basis, (drop off at school or at the other parent's home) commencing September 4, 2018. Under that schedule, J. was to be returned to the mother's home on the morning of Monday, June 1st, 2020.

[206] The father had clear knowledge of the Final Order, dated July 23, 2018 and had been following it. It was made on consent based on the Minutes of Settlement. Notice was given to the father by the mother regarding the terms of the Order and the alleged breaches, although I note that, similar to the father, the mother was not personally served with the motion for contempt in accordance with Rule 31(2) of the Family Law Rules, but rather served by email.

[207] The father breached this Final Order. The terms of the residential order are clear and unambiguous. The parties had been following the Order for almost two years. The father confirmed in writing in his email to the mother on Sunday, May 31, 2020, that he was not going to return J. to the mother's care on Monday, June 1st, 2020. In his email dated May 31, 2020, he states the following:

"I am keeping J. until Wednesday. I have a variety of reasons and happy to discuss. Overall it's to protect J.'s best interests and a more appropriate schedule for him so that I can be sure he is reasonably recovered from the events of the past 10 days. J. is happy with this and looks forward to 5 days with you starting Wednesday. I propose you then take his Wednesday through to next Monday and starting Monday June 8 that I have J. Mondays and Tuesdays, you Wednesdays and Thursdays and we continued to rotate weekends.

[208] This is a clear breach, confirmed in writing.

[209] However, I am unable to find the father in contempt on the criminal standard of proof that I must apply. The parties agreed at the outset of this hearing that the contempt motions would proceed without viva voce evidence subject to cross-examination. The mother asserts that the father used J.'s serious illness to unilaterally change the court ordered schedule to the "week about" seven day schedule that he has always wanted.

[210] This may be true, however, the father also deposes that he was concerned about J.'s health in the mother's care, and indeed, wrote to the mother on Friday May 29, 2020, by email, that, " I will return [J.] to you on Monday once you provide a note from a medical professional clearing you to care for J.. This was a requirement from the verbal order from 2018 when you get sick."

[211] Although I treat the father's conduct as highly suspect, a parent's refusal to permit access of a legitimate concern for a child, rather than a desire to frustrate access or deny contact, does not amount to contempt. See Johannesson v. Johannesson, 2003 CarswellOnt 3924; K.A.R. v. B.T.S. (2005), 2005 ONCJ 44 (O.C.J.).

[212] Further, the father purged his contempt by returning the child on June 3rd, after being served with the mother's motion for contempt. I also find that there is another more appropriate remedial measure to adequately address the father's conduct, which I address later in these reasons.

The Disposition of the Requests for Temporary Variations of the Final Orders

[213] For the reasons that follow, both parties' requests to for a temporary variation of the parenting schedule in the Final Order are dismissed.

[214] The current residential schedule has been in place since July of 2018, a period of more than two years. It is a Final Order that was based on final Minutes of Settlement.

[215] The parents live close to each other, in the same community in Toronto, and it is not disputed that J. has a close and loving relationship with both of them. Both parents, despite their differences, love J. very much and are good parents in meeting his instrumental, material and emotional needs in a caregiving role.

[216] The court was concerned that the level of conflict between the parties could give rise to a material change in circumstances in that it exposes J. to a risk of emotional harm given the number of exchanges between them under the current residential order. However, neither the mother's solution to reduce the father's access to alternating weekends or the father's solution to move to a five day 'week about' schedule adequately addressed how this would reduce conflict between the parties or would be in J.'s best interests.

[217] Given J.'s age (only 6), five days away from either parent may be too much for him and detrimental to his emotional health. As well, reducing the father's time to alternating weekends after spending much more time with him may also be difficult for J.

[218] Further, it is abundantly clear that the conflict between the parents does not originate in the residential schedule but rather in their extreme difficulty in making the decisions that need to be made about J.'s health and welfare.

[219] In applying the correct legal test set out by Justice Pazaratz for the interim variation of a final order, neither party has demonstrated a material change affecting J.'s best interests that would necessitate a change to the residential schedule. Nor has either party discharged its onus in demonstrating that the current residential order results in an "an untenable or intolerable situation, jeopardizing the child's physical and/or emotional well-being."

[220] Neither parent established that the parenting schedule in the July 23, 2018 Final Order is "so serious and potentially harmful that any delay in addressing the problem is likely to continue or exacerbate actual or potential physical and/or emotional harm for the child".

The Disposition of the Mother's Request to Replace or Change the Temporary "Without Prejudice" Joint Custody Order with a Temporary Custody Order

[221] The parties have been engaged in litigation regarding J. since November of 2017 when the mother first commenced her application. Notwithstanding the three comprehensive court orders, made on consent, governing the parenting issues between the parties since this litigation commenced, the conflict has not subsided and in fact, only seems to be escalating.

[222] With respect to the issue of joint custody, it is clear that the track record of co-operative parenting that is normally required for a joint custody arrangement to be successful does not exist here.

[223] The Temporary Without Prejudice Agreement that the parties signed and incorporated into a court order on December 2, 2019 is not working and broke down very shortly after the parties entered into it.

[224] The mother brought back her original motion for temporary sole custody in January of 2020, four weeks after the December 2, 2019 order was entered into, although the hearing of that motion was regrettably significantly delayed as a result of the Covid-19 pandemic's effect on court operations. The mother brought back her motion again in May of 2020 given the urgent circumstances that arose at that time.

[225] In some cases, there is no need for a temporary custody order pending a trial, either because there is no record of actual disagreement between the parties or because they have been able to work out isolated disagreements and meet the child's needs.

[226] This is not one of those cases. Notwithstanding the status quo that exists, there are compelling and pressing reasons to make a temporary custody order at this stage of the proceedings, applying the legal test articulated in Copeland v Perreault, supra, for temporary without prejudice orders.

[227] J.'s health care is not being adequately addressed under the current temporary without prejudice order for decision making. The tremendous conflict between the parties is significantly detrimental to his bests interests and could place his health at risk.

[228] The trial in this matter, very unfortunately due to the Covid-19 backlog that the court is experiencing, will now not occur for at least seven months, if not later.

[229] It is simply not in J.'s best interests to have his parents continuously disagree about medical issues affecting J.'s health and welfare, including, unbelievably, whether he should be going to the hospital emergency on the advice of a medical practitioner. Someone has to be able to make timely medical decisions without interference and conflict regarding pressing and urgent issues.

[230] In my view, that person should be the mother. The father's behaviours during J.'s period of very serious illness, as described in this decision, were completely unreasonable and incomprehensible. He created a level of conflict that could have been entirely avoided and caused J. emotional harm.

[231] There is absolutely no evidence that the mother has been negligent in meeting J.'s health care needs. The father produced no evidence from any health professional treating J. that the mother has been negligent in caring for J.

[232] The mother acted quickly and responsibly in seeking urgent medical advice when J. became very ill and his fever rose to 104 degrees. She was advised to take J. to the emergency immediately, which she did. She called the father before she went and regularly updated him regarding J.'s prognosis.

[233] The father's belief that he should have been conferenced into the mother's emergency call with medical professionals so that he could have "comprehensive discussions on symptoms, on options" before making a decision to take J. to emergency while the child's fever was at 104 degrees and rising could have potentially put J.'s health at greater risk, given the obvious delay that would have caused.

[234] Throughout these proceedings, and during this hearing, the father has been extremely critical of the mother's parenting and judgment. He insisted that he should have been involved in the decisions to take J. to emergency. He does not trust the mother's judgment, when in fact, it is the father's judgment that raises serious concerns.

[235] The father attended the mother's home the day after J. attended emergency and went to J.'s bedside at the mother's invitation. Even though he described J. as looking "deathly ill" on that visit, he insisted that J. be removed from his bed to be placed in a car and transferred to his care. When this did not happen because J. becomes too upset and did not want to leave his bed, the father called the police to report the mother for breaching the court order.

[236] Rather than comfort J. and work with the mother to ensure J.'s speedy recovery, the father calls the police twice that same day.

[237] According to the father, he involved the police "knowing they would go and talk to J." He claims that he "weighed any negative impact of that event against" against J.'s ill health and that he wanted third party documentation by the police to protect himself against "false allegations". He further claims that he needed the police to do a "wellness check" because he was concerned about the mother's care of J., even though he had just seen J.

[238] The police did in fact attend on that day and met with both J. and the mother in her home. They left without incident. It is not disputed that no concerns were raised regarding the mothers' care of J.

[239] During this hearing, the father asserted that he did not intend for the police to remove J. from the mother's care. The fact that the father believes that it is in a child's best interests to be interviewed by the police on a day that the father concedes the child is seriously ill, upset and recovering in bed, speaks volumes about the father's poor judgment.

[240] The following day, the father reports the mother to the Children's Aid Society. Later that week, the father makes a further report to the Children's Aid Society accusing the mother of overdosing or poisoning J. with antibiotics. During this hearing, the father acknowledged that he believed that the mother "negligently or intentionally" mishandled J.'s antibiotics. During a joint discussion with the mother and a medical service provider, he asked for a "tox screen" for J.

[241] There is no evidentiary basis for any of these frankly irrational claims.

[242] The father refused to return J.'s last dose of antibiotics to the mother when he finally returns J. to her care, after being served with the contempt motion. He insists that he should be the one to give J. his last dose. He eventually leaves the last dose open on the mother's front porch later that evening, causing J. not to get his last dose of antibiotics.

[243] The father's decisions are neither child-focused or in J.'s best interests. One parent will need to make decisions for J. in a timely and conflict-free manner, and that parent should be the mother.

CONCLUSION AND ORDER

[244] I therefore make a temporary order as follows:

1. Both parties' motions for contempt are dismissed.

2. The Temporary Without Prejudice Order dated December 2, 2019 shall be replaced with the following temporary order:

   a. The applicant mother shall have temporary custody of the child J.

   b. The applicant mother shall, after considering the respondent father's views, make the decision about any significant matter concerning the child's upbringing, including decisions about education, medical and dental treatment. The respondent father shall not, without the prior written approval of the applicant mother, take the child for any medical appointment, dental treatment or any other consultation and/or appointment.

   c. The applicant mother shall execute such authorizations as may be required to allow service providers involved in the child's life to release information to the father about the child or parental involvement with the child. This shall include authorizations in relation to any medical facility or personnel; any educational or daycare facility; and any recreational or other agency.

3. There is to be no video or audio recording of the child's interaction with the other parent, or at access exchanges.

4. The father's motion to replace J.'s primary family doctor with Dr. Rahul Saxena is dismissed.

5. Although the father was granted leave to record the motion on June 12, 2020 in accordance with section 136 (2) of the Courts of Justice Act, the father is prohibited from publishing, distributing or disseminating any of the recording in any public or private forums, including on the Internet, any website, or any social media platform.

6. To further clarify my Oral Ruling dated February 13, 2019 regarding the father's motion on the right of first refusal, and upon further consideration, the Court makes the following temporary order:

   a. In the event that either parent is unable to care for J. during their parenting time for any reason, including a medical reason such as hospitalization, then after a period of 48 hours, the other parent should be notified immediately. If the other parent is able and willing, then he or she should able to parent J. until the other parent is able to resume parenting pursuant to the residential schedule in the Final Order, dated July 23, 2018. If a parent has been hospitalized, he or she will not be required to provide a medical report confirming that they are well enough to parent J. unless ordered to do so by the court.

7. All other motions are dismissed. The parenting schedule set out in the July 23, 2018 Final Order shall continue in full force and effect pending any Motion to Change brought by either party.

[245] With respect to the issue of the costs of these motions, if sought and the parties are unable to agree, then the mother shall serve and file written submissions regarding costs by November 20, 2020 and the father shall serve and file any responding submissions by December 4, 2020. Both parties' written costs submissions shall be limited to three pages, excluding any offers to settle and bills of costs.

Dated October 30, 2020

_________________________

Justice S. O'Connell