Court File and Parties

Ontario Court of Justice

Date: 2020-12-11

Court File No.: Toronto DFO-12-10009

Between:

H.G. (Applicant mother)

— and —

J.C. (Respondent father)

Ruling on Motion heard on March 13 and August 13, 2020

Decision released on December 11, 2020

Counsel:

• Ryan Gillissie, for the applicant and moving party
• Gesta Abols, for the respondent and responding party

Before: O'Connell J.

Introduction

[1] The applicant mother has brought a motion seeking a temporary order within her Motion to Change the Final Order of Justice Marion Cohen, dated May 6, 2016. The child who is the subject of this motion is "L." L. is now 11 years old.

[2] The mother seeks a temporary an order expanding her alternating weekend access with L. to include Monday evenings, and on alternating weeks when she does not have weekend access, from Monday evening to Tuesday morning so that she can take L. to Hebrew school every Monday evening after school.

[3] The respondent father opposes the mother's motion and seeks an order that the mother's entire Motion to Change, issued October 10, 2019, be dismissed because the mother has not demonstrated a material change in circumstances.

[4] The Final Order governing the custody and access arrangements between the parties was made by Justice Cohen following a summary judgment motion in a child protection proceeding brought by the Jewish Family and Child Services of Greater Toronto.

[5] Justice Cohen granted the Society's motion for summary judgment and made a final order as follows:

a. L., the child, shall be in the care and custody of her father pursuant to section 57.1 of the Child and Family Services Act, now known as section 101(2) of the Child, Youth and Family Services Act ("CYFSA"), with incidents of custody regarding travel and government issued identification documents.

b. L. shall have access to the mother as follows:

i. Every second weekend, pick up from school on Friday and return to the father's home on Sundays at 5:00 PM;

ii. Every Wednesday evening, pick up and return to school on Thursday morning;

iii. The child is entitled to travel outside of Canada with her mother for vacation purposes. The mother will provide at least two weeks' notice to the father and advise him of the travel plan, including contact information. The mother is required to obtain the consent of the father for travel, such consent not to be unreasonably withheld.

iv. Any additional access that the parties may agree upon;

v. The mother shall also have the right to make inquiries and to be given information as to the health, education and welfare of L., in accordance with section 20(5) of the Children's Law Reform Act.

vi. This Final Order and all of its terms shall be deemed to be a Final Order under section 28 of the Children's Law Reform Act.

[6] The parties had a hearing before me on March 13, 2020 three days before the Ontario government declared a state of emergency as a result of the Covid-19 global pandemic. Regular court operations were suspended until July 2020. The court only heard urgent or emergency matters during that time.

[7] The parties had a continued hearing before me on August 13, 2020, to ascertain any further evidence about L.'s schooling as a result of the pandemic.

The Issues

[8] The major issue raised by the mother's motion is whether there has been a material change in circumstances affecting L.'s best interests since Justice Cohen made her final order on May 6, 2016.

[9] If so, the secondary issue is whether the court should make temporary orders at this stage in the proceedings, pending the final disposition of the mother's Motion to Change.

Disposition

[10] For the reasons that follow, I have determined, based on the evidentiary record before me, that there is a material change in circumstances affecting the best interests of the child.

[11] I have made a temporary order increasing the mother's access to L. to include Monday evenings, in accordance with the undisputed status quo that had existed for approximately two years following the Final Order, to accommodate L.'s Hebrew school and religious education, should the Hebrew school be operating during the pandemic.

[12] I have not granted the mother's further requests to increase access at this time. Before proceeding to a final disposition of the mother's Motion to Change, I have referred this case to the Office of the Children's Lawyer for an independent investigation and to ascertain L.'s views and preferences.

Background and Litigation History

[13] The parties were married and in a relationship until 2012, when they separated. L. was born in 2009. She was approximately three years old when the parties separated.

[14] The parties dispute the child-care responsibilities during the parties' relationship. The mother states that she was the primary caregiver, staying at home while the father worked full-time during the day as a contractor. The father states that he was equally involved in the care of the child during the parties' relationship.

[15] However, it is not disputed, according to Justice Cohen's 2016 Reasons for Judgment, that in the past, both parties struggled with serious drug and alcohol misuse while in a caregiving role.

[16] After the parties separated, the mother was brought to the hospital on November 30, 2012 as a result of a heroin overdose. In January of 2013, the father suffered a similar incident, involving heroin and cocaine.

[17] On January 30, 2013, the Jewish Family and Child Service ("JFCS") commenced a child protection application. On February 5, 2013, the child was placed in the temporary care of the mother, subject to the Society's supervision, with access to the father at the Society's discretion.

[18] The child continued to reside in the mother's care until August of 2013. On August 22, 2013, the child was apprehended from the mother as a result of the mother's continued struggles with cocaine and alcohol addiction.

[19] In March of 2013, the father was arrested in relation to an incident that occurred at the mother's home. He was charged with break and enter and possession of stolen property.

[20] After this incident, the father entered into a residential drug treatment program. Following the completion of that program, the father's circumstances stabilized. The father had not used drugs since April of 2013.

[21] In September of 2013, the parties consented to an order placing the child in the temporary care and custody of the father, subject to the supervision of the Society.

[22] Justice Cohen found that the evidence demonstrated that the child did well in the father's care. The child appeared happy and well-cared for, attended school regularly and the father was observed to be attentive and loving.

[23] During that time period, up until approximately 2015, the mother continued to struggle with her recovery. She was enrolled in a number of different drug treatment programs and lived in a number of different places, including Nova Scotia and Ottawa.

[24] However, by May of 2015, the mother's situation had also stabilized sufficiently for the child to have regular, unsupervised access with her. Since 2015, the mother has exercised alternating weekend and mid-week access with the child. The society no longer had concerns about the mother's access and described the mother and child relationship as loving, warm and affectionate.

The Summary Judgment Motion

[25] The Society brought a summary judgment motion in February of 2016 seeking an order placing the child in the father's custody with specified access to the mother.

[26] The summary judgment motion was about disposition only. On March 11, 2014, the parties had previously consented to an order that the child was in need of protection pursuant to the protection findings in a Statement of Agreed Facts signed by both parents.

[27] The father supported the Society's motion. The mother did not. She alleged a number of deficiencies in the father's parenting.

[28] Of particular concern to the mother, as addressed in Justice Cohen's judgment was L.'s Jewish heritage. The mother did not believe that the father would properly foster L.'s Jewish identity. In light of this concern, the mother proposed joint custody in a parallel parenting regime, so that she could make decisions regarding the child's religion upbringing and education.

[29] Justice Cohen found that there was a history of poor and ineffective communication between the parties and determined that this was not an appropriate case for joint custody. Indeed, Justice Cohen found that there was in fact "no evidence of a history of co-parenting or effective communication and cooperation since the separation."[1]

The Child's Jewish Heritage and Identity

[30] The child was identified by both parents and the Society as Jewish in the Statement of Agreed Facts signed by all parties in the child protection proceedings. Both parents were legally represented in the child protection proceedings. On consent, a statutory finding was made under the Child, Youth, and Family Services Act ("CYFSA") that the child was Jewish.

[31] Justice Cohen considered and addressed the mother's concerns that the father would not foster the child's Jewish identity. She was satisfied, based on the father's evidence, that the father was willing to accommodate the child's religious identity. Justice Cohen states the following at paragraphs 40 and 53 of her Judgment:

"40. Here I note following: On consent, the child is identified as Jewish in the Statement of Agreed Facts. The father has indicated that he is willing to accommodate the child's religious identity. He has demonstrated that he is able to make appropriate decisions about the child's education. The evidence is that since the spring of 2013, he has made appropriate decisions in all areas of the child's life, including education and that the child is doing well…

53. The parties do not agree on the question of whether they are able to communicate. They do not agree about whether the father is willing and able to foster the child's Jewish identity. Their historical evidence is conflicting. The current evidence is that the father is well able to address the child's needs. The father emphasizes his willingness to accommodate this issue. Based on his attention to the child's best interests this far, I accept that his statements are sincere. In view of these facts which are established, I do not find the conflicting facts in issue between the parties on historical matters raise genuine issues that require a trial for a resolution."

[32] Accordingly, for detailed written reasons, using her expanded powers under Rule 16 of the Family Law Rules, Justice Cohen granted the Society's summary judgment motion for custody to the father, specified access to the mother.

[33] Justice Cohen's Final Order did not include specified holiday provisions, save and except for summer vacation. She stated at paragraph 55 of her Judgment that there was no evidentiary basis on which to adjudicate holiday times. Further, these were not triable issues in child protection proceedings.

[34] She directed the parties as follows at paragraph 55 of her Judgment:

"If the parties cannot negotiate the additional [holiday] access through counsel, those issues can be brought before the court on an application under the Children's Law Reform Act. At this point the child's best interests favour the predictable access arrangements which are now in place."

The Mother's First Motion to Change in 2017

[35] The mother brought her first motion to change on June 19, 2017. I was asked by father's counsel, on consent, to review the first Motion to Change Record. I carefully reviewed the entire evidentiary record.

[36] In that motion to change, the mother sought, among other relief, an order that the parties have joint custody of the child and that the child's residential or access arrangements be shared on a "week about" basis, or another alternative shared residential schedule. L. was 8 years old at the time.

[37] The mother claimed the following changes in circumstances to support her motion to change:

a. There have been substantial changes in L.'s family constellation with her father, as the father and his partner are expecting a child in October 2017;

b. The father's partner and the mother had a very strained relationship and communication between them is very difficult and conflictual. The father's partner has made false allegations against her;

c. Neither the father nor his partner will communicate important information to the mother. For example, the father's partner was involved in a serious motor vehicle accident in which L. was present in the vehicle. The mother was not informed, nor was the mother informed that L. was going to have a baby sister;

d. The mother has taken on custodial responsibilities for L.'s extra-curricular activities, including arranging Hebrew class for her on Monday evenings, and taking the lead on L.'s Jewish education and heritage;

e. The father has made it very difficult for the mother to have additional time with L.;

f. Holidays and summer holidays have been very difficult to negotiate without a clear schedule. For example, the father refused to allow the mother to take L. on a week-long Disney vacation;

[38] The father refuted the claims in the mother's motion to change. The following summarizes his response to the mother's claims:

a. There has been no material change in circumstances since the Final Order of Justice Cohen. Communication has always been strained between the mother and he, and with his partner;

b. The mother is primary responsible for this poor communication. Emails of importance have been met with hostility and threats of police by the mother;

c. The mother does organize some extra-curricular activities for L. but this is for the sole purpose of childcare for the mother. The father and his partner also research and organize activities for L.;

d. The car accident that the mother referred to was not serious. No injuries were reported and the mother was notified the next morning of the details given the late return to Toronto following the accident. If the accident was serious, the mother would have been notified immediately.

e. L. was the first to be informed about the father's partner's pregnancy. It was unrealistic for the mother to be informed immediately as close friends and family members had not been informed. The mother was going to be informed.

f. Additional time with the child had been offered to the mother on several occasions and she has refused. Although the father did not permit the first Disney vacation that the mother had planned, he consented to the second Disney vacation.

[39] The undisputed evidence in the mother's first motion to change was that the mother had enrolled L. in Hebrew school on Monday evenings and was taking L. to these classes. The father did not have an issue with the mother taking L. to Hebrew school on Monday evenings, which was in addition to her regular Wednesday access under Justice Cohen's Final Order.

[40] This motion to change was dismissed, according to both counsel. I could not find any written ruling dismissing the motion to change or any consent reached with respect to that motion.

[41] I was advised by counsel that a Consent was reached on some of the holiday issues, including religious holidays, but for reasons unknown, that Consent was not in the Endorsement Record, nor in the parties' materials on this motion.

The Current Motion to Change and Temporary Motion Before the Court

[42] The mother brought this motion to change on October 10, 2019. The mother seeks, among other relief, the following:

a. An order that the mother have access to L. on a "Week One; Week Two" schedule as follows: Week One: Thursday pick up at school to Tuesday morning drop off; and Week Two: Monday pick up at school overnight to Tuesday;

b. In the alternative to the above access schedule, an order that the father shall make the child available for Hebrew school on Monday evening in accordance with the Hebrew class schedule. The mother shall ensure the child's attendance and shall be solely responsible for transportation;

c. An order referring the issues of custody and access to the Office of the Children's Lawyer;

[43] The mother also sought changes to the Final Order to permit her to travel with L. outside of Canada for vacation purposes without the father's consent. She further sought an order that the parties communicate through Family Wizard. (The mother also sought these two orders on her first motion to change).

[44] In the temporary notice of motion before me, the mother seeks the following temporary orders:

a. Access to L. on alternate weekends from Friday with pick up from school to Monday after Hebrew school, with drop off at the father's home;

b. Wednesdays, with pick up from school overnight to Thursday morning, with drop off at school;

c. Alternate weeks (when L. is not with the mother on the weekends), pick up after school on Monday to Tuesday morning drop off at school;

d. In the alternative to the above, the father shall make the child available every Monday evening for Hebrew school, with drop-off by the mother to the father's home after Hebrew school.

Summary of the Relevant Evidence

[45] I reviewed the following evidence in this motion:

a. The Affidavit of the mother, sworn September 25, 2019 and all exhibits;

b. The Affidavit of the mother, sworn February 20, 2020 and all exhibits;

c. The Affidavit of the father, sworn November 21, 2019 and all exhibits;

d. The Affidavit of the father, sworn February 27, 2020 and all exhibits;

e. The Affidavit of the mother, sworn March 2, 2020 and all exhibits.

[46] As indicated, on consent of the parties, I also read the continuing record regarding the mother's first motion to change.

[47] The mother claimed the following changes in circumstances in this motion to change:

a. Since 2017, for a period of two years, the mother has enrolled L. in Hebrew School on Monday evenings, with the father's consent. This is in additional to the mother's regular Wednesday access.

b. The third year of Hebrew school started in September of 2019. The father is now refusing to allow L. to attend.

c. The father has advised the mother that L. is being bullied in Hebrew School and that L. is adamant that she no longer wishes to attend.

d. The mother disputes this and states that L. enjoys attending the Monday evening Hebrew school and spending the extra time with the mother on that day when she takes her. Upon learning of this information from the father, the mother immediately reached out to L.'s teacher, who was very surprised and saw no evidence of bullying. She described L. as a lovely girl who appears to very much enjoy the class which takes places with a small group of girls in a private home.

e. The father has now advised the mother that L. is no longer interested in her Jewish identity or religion and that she is being forced "to participate in something that does not fit her life." The father, his partner, and their two children (L.'s half-siblings) are not Jewish, they will not be raising L. as Jewish and any discussions of Jewish religion will be very limited.

f. The father gave assurances to Justice Cohen in 2016 that he would accommodate and foster L.'s Jewish heritage and identity. To that end, in 2017, he permitted L. to attend Hebrew school on Monday evenings, as facilitated by her mother, for a period of two years before refusing to allow her to attend in the fall of 2019.

g. The father is no longer willing or able to accommodate L.'s Jewish identity and religion, contrary to her best interests.

[48] The father response to the mother's motion to change and temporary motion is as follows:

a. The father initially agreed that L. could attend Hebrew classes on Monday evenings, as facilitated by the mother, from 2017 to 2019. The first year L. attended regularly, but in the second year, it became apparent that L. did not want to attend and missed a number of classes.

b. The father first informed the mother of his hesitancy to allow L. to continue with her Hebrew education by email in May of 2019. He informed the mother of L.'s unwillingness to continue the classes. According to the father, L. had missed a number of classes in the past year due to her extreme anxiety about attending. He advised the mother that L. no longer wanted to attend Hebrew class and he "did not feel comfortable allowing L. to go back to a place that did not support her emotionally or spiritually."

c. L. has advised the father and his partner that she is being bullied in the class and that this was one of the reasons that she did not want to attend. He advised the mother that she would need to look for a new class for L. on the mother's regular Wednesday access or to switch her Wednesday visit for the Monday.

d. The father believes that the mother is not listening to L. and choosing to believe the words of the Hebrew teacher, who did not see any bullying, over the words of their daughter.

e. In the father's household, "they practice spirituality, love, peace and acceptance". He and his partner and L.'s two siblings in that household are not Jewish. He believes that L. feels "singled out" due to the mother's lack of commitment to raising L. as a Jewish person and because no one in his home is Jewish.

f. In the father's responding Affidavit, he deposed the following at paragraph 16: "I never stated I would ensure L. is raised Jewish. I have always stated I would accommodate [the mother's] wishes. I said this 5 years ago, before L. had a voice and a strong opinion….I cannot be held up to a promise I made over 5 years ago when L. is now verbalizing otherwise and accommodating [the mother's] wishes to force L. into Hebrew school is something that I view not to be in L.'s best interests." [Emphasis added by father.]

g. The father states that L. is adamant that she does not like or want to attend her Monday night Hebrew class and he does not understand why the mother is forcing her to attend.

h. According to the father, he has "wholeheartedly supported the mother's choice to raise L. as Jewish, up until [L.] showed resistance".

i. The father and his partner have investigated other options on Wednesday evening (the mother's access time) such as private tutoring or at the Forest Hill Jewish Centre which run Bat Mitzvah preparation classes on Wednesday evenings during the mother's access time. If the mother "so chooses to force L. against her will to continue", she can do this on Wednesdays within the existing court ordered access schedule without the need for an additional Monday night for Hebrew school.

j. According to the father, the mother became more adamant about L.'s Jewish education when it became a bargaining tool for custody issues. He believes that the mother only wishes for L. to attend this Hebrew school as a "disguise for gaining more access time."

k. It is the father's belief that the mother is doing this "to gain extra time with L. at L.'s expense" and that "if extra time is awarded to [the mother to bring L. to Monday Hebrew school], L.'s Jewish education will cease to exist." Any "additional immersion of the culture can be done within the time allotted to [the mother] in the current agreement."

l. It is for these reasons that he believes that there is no material change in circumstances and seeks a dismissal of the motion to change.

[49] In her reply affidavit, the mother took great exception to the father's claim that she is using her Jewish faith as a bargaining tool when it came to custody and access issues.

[50] She states that L. has been raised Jewish since "day one". This was a fundamental part of the custodial decisions that they made together while married. L. was enrolled in a Jewish daycare while they were together. During the time they were involved with child protection services, the family received services from Jewish Family and Child Service.

[51] After the parties' separation, she was not in a position to plan for L.'s Jewish education until late 2016 because of her documented struggles and her recovery. She was not in a financial position to pay for Hebrew school until 2017. During her access time with L. they attend Shabbat dinner and celebrate other Jewish holidays.

[52] The Monday Hebrew classes that L. was registered for in the fall of 2019 continue, despite the father's assertion that they have been discontinued. These classes occur in a private home with a small group of girls about the same age as L. The Hebrew teacher expressed great surprise about the allegation of bullying. She described L. as "a delight" to have in the classes and that the other girls in the group really like and embrace her.

[53] According to the mother, contrary to what the father states, there are no Hebrew classes listed or available on Wednesday evenings at the Forest Hill Jewish Centre. Although there are Bat Mitzvah preparation classes on Wednesday evenings, these classes are completely different from Hebrew school. Further, private tutoring is very expensive and the mother cannot afford this.

[54] More importantly, the mother asserts that L. has been going to this same Hebrew school for the past approximately two years with the same group of girls in an informal setting. L. has enjoyed the class and it is very important for her Jewish education.

[55] It is the mother's position that the father changed L.'s attendance at Hebrew school after two years to suit his own schedule and to reduce the mother's access time with L.

The Law and Governing Principles

[56] In this motion, the mother is seeking a temporary variation of the Final Order of Justice Cohen, dated May 6, 2016 pending a final hearing or disposition of her Motion to Change.

[57] 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.

[58] 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.

[59] In Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.) the Supreme Court of Canada set out that the moving party has the onus of meeting a two-part test to change an existing custody and access order. The two-part test is as follows:

The first step:

a) There must be a material change in circumstances since the last order was made.

b) The change in circumstances must not have been foreseen or reasonably contemplated by the judge who made the original order.

c) There must be a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs.

d) The change must materially affect the child.

e) It must be a change which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. The change must be substantial, continuing and "if known at the time, would likely have resulted in a different order." See L.M.L.P. v. L.S., [2011] SCC 64.

f) The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order.

g) If there is no material change in circumstances, the inquiry ends. The court would be without jurisdiction to vary the order. See Litman v. Sherman, 2008 ONCA 485 (Ont. C.A.).

h) If there is a material change, the court must move to the second stage and consider the best interests of the child and whether to vary the original order.

The second step:

a) If a material change in circumstances has been established the court then embarks on a fresh inquiry into the best interests of the child.

b) In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing time-sharing arrangements.

c) The court must ascertain the child's best interests from the perspective of the child rather than that of the parents. 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.

d) The child should have maximum contact with both parents if it is consistent with the child's best interests.

e) Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs.

[60] 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, 5 R.F.L. (5th) 326 (Ont. S.C.J.) and Kimpton v. Kimpton, 2002 CarswellOnt 5030 (Ont. S.C.J.).

[61] Where a party is seeking a temporary variation of a final order, the test is more stringent.

[62] 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 number of additional factors, in addition to the material change in circumstances test, when considering the request for a temporary variation of a final parenting order.

[63] Justice Pazaratz held that there is "strong gravitational pull" towards the status quo, unless pressing and compelling circumstances demonstrate otherwise. Although the facts of the case before Justice Pazaratz are very different from the case before me, some of the factors relevant to the case at bar are the following:

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. 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. 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. However, 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. 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.

Analysis and Disposition

[64] In applying the law to the facts of this case, I find that there is a material change in circumstances regarding the issue of L.'s religious education and Jewish identity and in particular, the father's willingness and ability to foster L.'s Jewish identity and heritage since the Final Order of Justice Cohen.

[65] It is not disputed that in 2016, the parties agreed that L. is a Jewish child. The parents signed a Statement of Agreed Facts in the child protection proceedings acknowledging L.'s Jewish identity. The father deposed in 2016 that he was willing to accommodate and support L.'s Jewish identity.

[66] In determining the issue of custody, Justice Cohen was satisfied that the father was sincere in his willingness to accommodate and foster L.'s Jewish identity and heritage.[2]

[67] It is further not disputed that in 2017, the father agreed that L. could attend Hebrew school on Monday evening with the mother, and that this continued for a period of approximately two years.

[68] Consequently, in addition to the regular, court ordered access schedule, this has been a voluntary de facto status quo agreed to by the parties until 2019, shortly before the mother brought this Motion to Change.

[69] In reviewing the continuing record that was provided to me, it is clear that L.'s Jewish identity and education was not in issue or in dispute during the mother's first Motion to Change.

[70] However, since 2019, the following events have occurred based on the undisputed evidence before me:

a) On his own evidence, the father deposes the following at paragraph 16 of his Affidavit in response to the mother's motion: "I never stated I would ensure L. is raised Jewish. I have always stated I would accommodate [the mother's] wishes. I said this 5 years ago, before L. had a voice and a strong opinion….I cannot be held up to a promise I made over 5 years ago when L. is now verbalizing otherwise and accommodating [the mother's] wishes to force L. into Hebrew school is something that I view not to be in L.'s best interests." [Emphasis added by father.]

b) In 2017, the father initially agreed that L. could attend Hebrew classes on Monday evenings, as facilitated by the mother, and to accommodate L.'s Jewish education. He is no longer willing to do so and unilaterally withdrew his consent in 2019.

c) According to the father, he has "wholeheartedly supported the mother's choice to raise L. as Jewish, up until [L.] showed resistance". He is now no longer willing to do so because he believes that L. is not interested or invested in her Jewish identity.

d) The father states that L. no longer wants to attend Hebrew class and he "did not feel comfortable allowing L. to go back to a place that did not support her emotionally or spiritually."

e) In the father's household, "they practice spirituality, love, peace and acceptance". He and his partner and L.'s two siblings in that household are not Jewish. He believes that L. feels "singled out" due to the mother's lack of commitment to raising L. as a Jewish person and because no one in his home is Jewish.

f) The father states that L. is adamant that she does not like or want to attend her Monday night Hebrew class and he does not believe that she should be forced to attend.

g) The father does not believe that the mother is sincerely committed to L.'s Jewish identity and education. According to the father, the mother became more adamant about L.'s Jewish education when it became a bargaining tool for custody issues. He believes that the mother only wishes for L. to attend the Monday evening Hebrew school as a "disguise for gaining more access time."

h) Consequently, the Court is concerned that the father may not take the issue of L.'s Jewish identity and heritage seriously. It appears to be his position that the mother is doing this "to gain extra time with L. at L.'s expense" and that "if extra time is awarded to [the mother to bring L. to Monday Hebrew school], L.'s Jewish education will cease to exist." Alternatively, the father may sincerely believe that it is not in L.'s best interests to continue to force her to engage in her Jewish education if she is resistant.

i) L. is now 11 years old. She will be 12 years old in a January of 2021. Her views and preferences are important give her age, and there needs to be an independent investigation of her views, given the parents' starkly contrasting perspectives and reporting of L.'s views and the importance of her Jewish identify, heritage and education. In the meantime, the status quo that has existed on a voluntary basis for the past two years should continue if at all possible.

[71] I therefore find that the mother has discharged her onus in establishing a material change in circumstance since the 2016 Final Order that affects L.'s best interests.

[72] I also find that the mother has discharged her onus to modify the Final Order of Justice Cohen on a temporary basis, but only on a very limited basis pending a full independent inquiry and investigation of the issues, including L.'s views and preference by the Office of the Children's Lawyer ("OCL") leading to a final disposition.

[73] I find that pending a full investigation and final disposition, the mother should be able to continue to take L. to her Hebrew classes on Monday evenings, if the school is continuing during the pandemic, as she had been doing for a period of approximately two years with the father's agreement. This voluntary status quo developed between the parties in accordance with paragraph 6.(d) of the Final Order which provides for any other access as agreed between the parties.

[74] I am aware that many students are now engaged in online learning as a result of the pandemic. At the continuation of the hearing in August, the issue of whether L. would be attending online or in person schooling was still understandably uncertain. Further, given that the L.'s Hebrew school was occurring in a private home, it is also uncertain if that is now continuing. This will be addressed in my temporary order below.

[75] The balance of the relief that the mother is seeking will be adjourned to a final disposition or hearing following the OCL investigation.

[76] The record before me also indicates unending conflict between the parties regarding the negotiation of holiday access each year, in addition to a myriad of other issues. This is not in L.'s best interests and places her at risk of emotional harm. A clear and specified holiday access order is needed in any final disposition following the completion of the OCL investigation.

Conclusion and Order

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

a. Commencing immediately, the father shall make the child available for Hebrew school on Monday evening, by permitting the mother to pick up the child from school or the father's home so that she can facilitate the Hebrew School on either an online or in-person basis, pending further order. The mother shall return L. to the father's home on Monday evening following the conclusion of the class.

b. The balance of the relief in the mother's notice of motion is adjourned pending a full investigation of the issues of custody and access by the Office of the Children's Lawyer.

c. A separate order referring this matter to the Office of the Children's Lawyer will be made today.

d. Both parties shall complete and deliver their OCL Intake forms as soon as possible and no later than ten business days from the date of this Order.

e. A copy of these Reasons will also be delivered to the Children's Lawyer.

f. The matter will return before me in late January at a date to be agreed upon by counsel and the trial coordinator to monitor the OCL's involvement.

g. With respect to the issue of the costs of this, if sought and the parties are unable to agree, then the mother shall serve and file written submissions regarding costs by January 11, 2021 and the father shall serve and file any responding submissions by January 25, 2021. Both parties' written costs submissions shall be limited to three pages, excluding any offers to settle and bills of costs.

Dated: December 11, 2020

Justice S. O'Connell

[1] Paragraph 20 of Justice Cohen's Unreported Written Judgment, CFO-13-100089, dated May 6, 2016.

[2] See paragraphs 40 and 53 of her Written Reasons for Judgment dated May 2016.