M.M. v. L.R., 2022 ONCJ 79

ONTARIO COURT OF JUSTICE

DATE: February 25, 2022 COURT FILE No: D57534/12

BETWEEN:

M.M. Applicant/Respondent on Motion

— AND —

L.R. Respondent/Applicant on Motion

Before: Justice Debra Paulseth

Heard on: February 16 and 17, 2022 Reasons for Judgment released on: February 25, 2022

Counsel: Ayesha Hussain, counsel for the applicant Karmel Sinclair, counsel for the respondent

Paulseth, J.:

Overview

[1] The parties are the parents of NM, born on […], 2007. The Applicant/mother is almost 38 years old and the Respondent/father is 53 years old. The parents had an on and off relationship from 2005 until 2011. They have been before the court almost constantly since September of 2012.

[2] This proceeding is father’s second Motion to Change parenting time, which he commenced on November 18, 2019. The mother’s pleading seeks a dismissal of the Motion to Change.

Issues for this hearing

1. Has there been a material change in circumstances affecting or likely to affect the best interests of NM?
2. If so, what parenting plan is in NM’s best interests?

[3] A hearing plan was agreed upon by the parties to include:

• All evidence in chief by affidavit with cross examination time limits set;
• Each parent will give evidence; father will call two additional witnesses;
• The author of the Voice of the Child report from the Office of the Children’s Lawyer (OCL) to be called as a witness and each party allowed to cross-examine.

[4] By further 14B, the father sought and received permission to file reply material of up to 80 pages.

[5] The court history is relevant for several reasons: firstly, to underscore the level of conflict between the parents and secondly, to appreciate the order which father is seeking to change.

[6] Mother issued her Application in September of 2012, seeking custody and child support. Father responded with a request for joint custody. During the course of that proceeding:

• Several motions were heard. Father brought two motions seeking to set aside orders for alleged fraud and poor legal representation; these were dismissed;
• Father filed a DVD recording of the child alleging abuse by the mother. This was investigated by the Children’s Aid Society of Toronto (CAST) and not verified;
• There were parallel criminal proceedings against the father related to the mother, including charges of alleged assaults, forcible confinement, and failure to comply. Eventually, the charges were withdrawn and father entered into a peace bond in December of 2015;
• At one point, father was ordered to pay $2500 in costs;
• In September 2014, there was a court order on consent for sole custody to mother;
• In February of 2015, a final child support order was made with provision for annual disclosure;

[7] On April 8, 2015, a final access (now called parenting time) order on consent was made to father, as follows:

• 3 hours weekly to be supervised by Brayden Supervised Access Services (Brayden); increased from the one hour temporary order of July 23, 2013;
• In January of 2016, father can bring a motion to change without establishing a material change;
• Mother may travel for two weeks each summer, without prejudice to father’s right to bring a motion for summer travel in 2016.

[8] In July of 2016, father brought a motion to change his parenting time, seeking unsupervised access and an increase up to shared parenting time.

[9] In September of 2016, mother brought an Application for a restraining order; because the conditions of the father’s peace bond were about to expire.

[10] A restraining order was granted on March 16, 2017 on the following terms:

• Father not to contact/communicate directly or indirectly with mother except through the paternal aunt for access arrangement;
• Father not to come within 500 metres of mother and child home, school, daycare, workplace;
• Father may review after three years on terms relating to father’s insight and counselling; this paragraph was deleted on appeal. Mother was ordered to pay $6,000. for costs of the appeal.

[11] On April 4, 2018, parenting time was varied on consent on a temporary basis as follows:

• Unsupervised parenting time on alternate Saturdays from 9:00 am to 4:00 pm and on Thursdays from 5:30 pm until 8:30 pm, with supervised exchanges.

[12] On August 2, 2018, the parents agreed to a second final parenting time order:

• Tuesdays overnight to Wednesday morning; Thursdays from 5:15 until 8:15 pm; except during the summer months when it is Monday overnight instead of Tuesday overnight; pick up and drop off at library or bank;
• Alternate weekends from Friday until Saturday at 5 pm;
• Alternate March breaks to father in odd numbered years;
• All communication through the paternal aunt;
• Non removal from Ontario by father;
• There can be negotiations for possible extended parenting time at Christmas and holidays through the paternal aunt; and
• Mother to send report cards to father, without location identification.

[13] On August 10, 2019, father brought a Motion to Change the restraining order.

[14] On November 4, 2019 the parents signed Minutes of Settlement regarding that motion, which became a court order on November 12, 2019:

• terminating the restraining order, effective December 31, 2019,
• Permitting father to attend the child’s school, concert, activities, health appointments, and parent teacher meetings. If the parents attend the same event, they are to be on different sides of the room, and
• Agreeing to ensure that the child is not exposed to any adult conflict.

[15] Both counsel agree that the provisions in this November of 2019 agreement are, apart from terminating the restraining order, amendments to the final access order of August 2, 2018.

[16] On November 13, 2019, father’s current Motion to Change is issued with the court. In his pleading he is seeking, among other items:

• Termination of the August, 2018 order,
• Increased parenting time Tuesdays and Thursdays for tutoring, after school, 3 to 7 pm; and Mondays and Friday; alternate full weekends,
• Pick up and drop off at the school,
• Two consecutive weeks in July,
• Travel outside of the country,
• Change the child’s surname to add the father’s name as the last name,
• Mother to provide her change of address for purpose of serving court documents,
• Mother to provide copies of the child’s birth certificate, health card, and social insurance number, and
• Father’s sister to be removed as the communication exchange person and parties to communicate by email.

[17] In total, this matter has been before this court for 58 appearances, excluding this trial. It has been set for trial on at least three previous occasions but settled after the trial management conferences.

Summary of evidence for father

[18] Father argues that the termination of the restraining order in November of 2019 by Minutes of Settlement, effective for December 31, 2019 is a material change in circumstances affecting the best interests of NM.

[19] Father has kept a very detailed calendar of all access dates and cancellations over the many years this matter has been in litigation. He has also reproduced a large volume of text message and electronic communications from NM to him and between the parents through their stipulated third party, the paternal aunt.

[20] Mother admits to cancelling visits for these reasons:

• She or the child are sick; if mother was sick in earlier years then she could not get the child to the exchange location;
• The child had a special school project;
• Mother was having a baby;
• NM had a volleyball tournament;
• There was a parent-teacher meeting.

[21] Father also has examples of times when the child wanted her pickup to be later and mother denied the request due to other commitments.

[22] Father wanted to negotiate Christmas holiday time but mother was away in 2018; mother cannot recall what was happening in 2019; and a consent order for December 27, 2020 to January 2, 2021 was made by the court. In December of 2021, father decided to go to South Africa with his fiancée for a three week period and was then further delayed in returning until mid-January of 2022.

[23] When father returned to Canada in mid-January of 2022, mother said he immediately demanded to see NM but mother wanted him to wait for a quarantine period due to Covid-19. Mother was worried for her three younger children. Mother said father was very angry with her.

[24] Father enrolled the child in an elite track and field club. This was done without consultation with the mother who later agreed that he could take the child during his parenting time. This began as two days a week after school and has, since high school, increased to three days a week. There are also track meets on many weekends.

[25] There is no dispute that NM enjoys and is good at track and field. Since high school began in September of 2021, mother has agreed to father taking NM for a third practice, on Mondays.

[26] Father complains that mother seldom takes NM to track and field. Mother responds that track is father/daughter time. NM does not attend every meet which is fine with her. Mother responds that school must come first.

[27] NM made a new friend at the Track and Field Club. Father called this friend’s mother to give evidence that NM’s mother never attends the track club. This witness said mother may have attended but as this witness doesn’t know what mother looks like she wouldn’t know if mother was there. Also this witness testified that the girls are now in the high school level so they just go into the club on their own and one parent would not necessarily see another parent.

[28] Father wants additional parenting time to take NM to her tutor. Father had enrolled NM in Kumon for math in May of 2019. Now that she is in high school, and there are pandemic restrictions, NM does tutorials online. Therefore, there is actually no need for father to have extended time for this activity.

[29] Father wants to terminate the use of his sister as the third party who handles the communications between the parents. Father said she doesn’t want to do it anymore. He would like to be able to communicate directly with the mother. Mother wants to keep the paternal aunt involved.

[30] The evidence of the paternal aunt was that she was fine to remain involved and help. The paternal aunt, herself, laughed at the thought of the parents communicating directly and appeared skeptical about the likely success of that change.

[31] It is the father’s evidence that the mother is not dependable and he gave several examples of mother not appearing for the right pick up time in September of 2019.

[32] Father alleges that mother does not ensure that NM gets the academic assistance she needs. Father organized for the math Kumon assistance.

[33] On September 28, 2019, mother went to the police to complain about the lien that father put on her car following the costs order against her in the SCJ. Mother told police she had been paying it by sending father cheques for $50 a month for the past 5 months. Father found out about her car and placed a lien for the full $6000 cost order. Unfortunately, father only produced page 1 of a 2 page report by the police. Mother didn’t understand that there are companies that can do this.

[34] Father filed an 80 page reply affidavit that repeats and relies on allegations and events that took place as far back as 2006. This material was not helpful in determining the best interests of NM.

Summary of evidence for mother

[35] Mother deposed that father only raised one parenting time issue between August of 2018 and November of 2019. She argues that he now raises several issues for the first time in his affidavit for this motion to change. They both had counsel during that time period and were before the court on several occasions.

[36] Father started this Motion to Change a few days after signing the Minutes of Settlement regarding the restraining order provisions on November 9, 2019. Mother deposed that father said he wanted the restraining order terminated as it affected his ability to secure employment. Mother wanted to end the litigation for the sake of NM. NM told mother she wanted the litigation to stop.

[37] Mother argues that father knew the Restraining Order could be reviewed after 3 years from its effective date in 2017. He had that information when he agreed to the August of 2018 parenting time order. She believes that he already decided to bring the Motion to Change.

[38] Mother says that the child is doing well in school and is using the extra support of online tutoring. NM does not need father to take her to tutoring. The child is thriving in mother’s care.

[39] Mother deposes that NM enjoys track and field. Mother has three younger children and has only been able to take NM to a few practices. Mother has also taken NM to meets. Mother supports father and NM going to the track and field club.

[40] Mother deposes that NM is concerned about father’s attention to her weight and height. Father has filed an exhibit to his motion affidavit that charts her weight and height weekly over many years to ensure she is growing properly. At one point, NM told mother that father was asking NM to lift heavy weights.

[41] When the pandemic began, mother deposed that father was not forthcoming about the safety precautions in his home. Mother and NM thought he had tenants. NM was taking the bus to father’s home. Mother agreed on a temporary basis to change the transfer location to her home for the sake of NM.

[42] NM has advised mother that she is happy to share holiday time with father. Mother is agreeable too and only wants details of where they will be.

[43] Mother emphasized that NM is now 14 and will be 15 years old this July. NM can make her own choices and mother is happy to respect those decisions. NM does not want to be in the middle of this court case and wants the litigation to stop.

[44] NM is a normal teenager. She has told mother that the present schedule prevents her from socializing with friends. When NM tells mother she wants to be with friends rather than go somewhere with mother, mother respects her views, even if she is disappointed.

[45] Mother gives several examples of concerns that NM raises with mother about father’s home that NM is not comfortable raising with father. These generally deal with questions about who is in the home and who is renting space in the home. Mother says she does not push NM but lets her choose when and what to disclose.

[46] Mother testified that she encourages NM to have a relationship with her father and always has, even when it meant extra work for mother in taking NM to supervised access locations.

[47] Father is seeking police enforcement of parenting time orders both in Canada and internationally. Mother does not believe that is necessary. Father responds that there is a special telephone line for parents to reach a police officer with whom he can discuss parenting time issues.

[48] Father is seeking to change the location for pick up and drop off to NM’s school. NM has told mother she is not comfortable with that proposal. Mother also does not want father to continue the exchange at her home now that pandemic restrictions are being lifted.

[49] Mother is afraid of the father. This fear is based on the events surrounding their separation and the constant litigation since then.

Voice of the Child Report

[50] A full investigation and report was conducted by the Office of the Children’s Lawyer (OCL) prior to the order of August 2, 2018. Father did not agree with that report according to mother.

[51] Father was opposed to a referral for a voice of the child report, because he believed the child would be unduly influenced by the mother. The court requested it after hearing from the parties and reviewing their proposed parenting plans on December 15, 2020.

[52] On January 13 and 19, 2021, NM was interviewed by a fully qualified social worker from the OCL, Ms N. This social worker gave evidence in this hearing. She explained that the purpose of the Voice report is to summarize the youth’s impressions from the youth’s frame of reference. No other contextual information is gathered, unlike in the full investigation report. The methodology used was completely standard for this type of report:

• Ms N reviewed the intake forms, one from each parent;
• Ms N spoke to each parent and arranged to interview NM once at each home; the interview was conducted by zoom due to the pandemic;
• Ms N took notes contemporaneously; and
• Ms N summarized her notes in her report. It was filed with the court on January 25, 2021. The content is 6 pages.

[53] A brief summary of the report follows:

• NM enjoys school and has grades in the B and C range;
• Neither parent discussed with her what to say to the OCL;
• She has no memory of her parents being together, as they separated when she was young;
• She worries that the issues between her parents will get worse if she talks about them; and
• The impact of the litigation on her is very stressful:
  • “sometimes she will just stare at a wall at school and think about the problems between her parents”;
  • Sometimes she has to leave class so her thoughts will go away;
  • It is like “getting lost in another world”;
  • She wants her parents to know the litigation is very stressful for her;
  • Sometimes she has difficulty sleeping at night; last night she went to bed at 3 a.m.

[54] “If she could talk to the judge”, NM would say:

• All the court stuff to go away;
• Everything to be normal which means no court, no fighting, and everything stay the same;
• She wants some flexibility so that if she doesn’t want to go to her father’s he will accept that and she doesn’t want to make up the time; later said she would make up the time;
• She is happy to share holiday and summer time equally;
• She would like to be able to call either parent when she is at the other parent’s home;
• She would like to speak to a social worker or therapist about her feelings.

[55] On March 1, 2021, father filed a seven page, 51 paragraph, Dispute to the Report of the OCL, which he said would “demonstrate that these are not the words or character of my daughter and how she views herself, the court process, and her father”.

[56] Ms N was cross-examined by both counsel in this hearing.

[57] Counsel for father argues that little weight should be placed on this report because:

• Ms N made two errors: the age of one of father’s four other children and the spelling of that child’s name;
• It is possible that some of the language used by NM was adult-like;
• It is possible that mother coached NM;
• It is possible NM felt more comfortable in the second interview because she was at father’s home;
• Ms N did not ask NM about the father’s request to travel with her;
• Ms N was biased against the father because she is in the same association as the mother who is a social service worker; and made negative insinuations against the father;
• The night before the second interview father checked NM in her bed and does not believe that she was awake at 3 a.m.;
• Ms N reported NM as saying “she finds it weird when father attends at her school” when father has never attended at her school; it is possible the wording should have been “she would find it weird”;
• Father provided the names of two reported court cases that referred to names that were the same as Ms N’s: one is a Saskatchewan criminal case from 2010 where a person with the same name “admits she was intoxicated” and the second is a disciplinary complaint case against someone of the same name for violating privacy legislation.

[58] Father’s Dispute also contains a number of attached exhibits of text messages about NM having a sleepover at a friend’s home and a link to a utube video taken by NM with a cousin.

Has there been a material change in circumstances?

[59] Section 29 of the Children’s Law Reform Act (CLRA or Act) provides that the court shall not vary a parenting order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order.

[60] The Supreme Court of Canada has described the type of change necessary to satisfy this threshold question. In Gordon v. Goertz (1996) 2 SCR 27, the court said that:

• the change in circumstances must not have been foreseen or reasonably contemplated by the judge who made the original order.
• the change must be to the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child. Change is not enough. The change must have altered the child's needs or ability of the parents to meet the child's needs in a fundamental way.
• the change should represent a distinct departure from what the courts could have reasonably anticipated in making the previous order.

[61] The criteria has been interpreted as a three part test in Butler v. Percy:

• There is a change in her ability to meet the needs of the children;
• The change materially affects the children; and
• The change was not foreseen or could not have been reasonably contemplated at the time the initial order was made.

[62] The Supreme Court of Canada has also said, In L.M.L.P. v. L.S., [2011] SCC 64, that the change must be substantial, continuing and that “if known at the time, would likely have resulted in a different order.”

[63] Other helpful commentary on this test includes:

• When a parent agreed to an additional overnight visit, this did not constitute a material change in circumstances. Courts want to encourage resolution. Easson v. Blasé, (2016) ONCA 604.
• A wide interpretation of material change was given by the court in Zolaturiuk v. Johansen. Material is described as not meaning “major”. If the order is not working and needs to be clarified or fine-tuned, this can be material. Also, it should not tie court’s hands to adjust for changes in recreational activities. See Burton v. Brown, 2021 ONCJ 322.
• Ageing does not automatically mean a material change, but it can be a large factor. See: Brown v. Lloyd, 2015 ONCA 46. It also constituted material change when combined with new views of children in Stirling v. Blake, 2013 ONSC 5216. This was a material change where 18 month old child now 3. Elliott v. Loewen, 1993 CarswellMan 36 (Man. C.A.). This was followed in L. (V.E.) v. L. (L.E.) 1996 CarswellOnt 1299 (Ont. Gen. Div.). Also material change when child aged from 5 to 9.
• In Goldman v. Kudelya, 2017 ONCA 300, the court said: [41] The conflict here began when the parties separated. It continued throughout the litigation, and it was considered and anticipated by Kaufman J. A continuation of the conflict does not establish a material change in circumstances. This court confirmed this principle in Litman v. Sherman, 2008 ONCA 485, 238 O.A.C. 164, when it found no reason to re-open custody in a situation where “conflict between the parties was, regrettably, the norm". At paras. 36-37, the court said: According to the trial judge, “since the birth of their child, the parties have been altogether incapable of cooperating with one another in order to raise [the child].” This finding is well supported by the evidence. The parties’ willingness to work through a parenting coordinator does not detract from that finding; rather it reinforces it, given one was necessary to begin with and given this regime quickly deteriorated and proved unworkable. It follows that … the conflict between the parties did not constitute either a change or a situation that could not have been foreseen by them at the time of [the original] order.

[64] The cases agree that the rationale for a two-part test that establishes a threshold before launching a fresh bests interests analysis is important. There are significant benefits to children and their parents by stabilizing and finalizing orders. Few parties have the resources to continually litigate these issues. Variation should be the exception and not the norm if the best interests of children are to be the focus.

[65] In this case, the father argues that there has been a material change based on:

• The removal of the restraining order;
• Mother’s repeated cancellation of visits;
• Mother refusing to negotiate holiday and summer access;

[66] The evidence shows that the only change caused by removing the restraining order, taking into account the other agreed upon items, was that father could have direct access to the school and other service providers and could literally be closer to the mother and NM’s home, school and work. Father already had pick up locations at a neutral site. During the pandemic, mother agreed to pick up and drop off at her building.

[67] Father already had a third party as the go between for parenting time changes. This person, the paternal aunt, agrees to continue in that role, despite father’s evidence that she doesn’t want to.

[68] Father wants to have direct access to mother and to mother’s home. Father wants to show mother that he can have this direct access. This does not affect NM who is enjoying the parenting time the way it is set up currently.

[69] I find that the removal of the restraining order is not a material change that affects or is likely to affect the best interests of NM.

[70] Mother had not cancelled many visits when father brought this motion to change. Her explanation for the cancellations over the past three and half years are very reasonable: illness and NM’s other commitments.

[71] Mother impressed this court with her sincerity in wanting to support NM’s relationship with her father. Mother has been consistent in this approach despite her own personal fears of the father. She has been very selfless and courageous in putting her daughter’s best interests first.

[72] I find that the cancellation of some parenting time with father is not a material change in circumstances affecting NM’s best interests.

[73] Mother did negotiate Christmas holiday access in 2019 and 2020. It was father in 2021 who, on little notice to mother, left the country for about 5 weeks over Christmas and New Year’s.

[74] Father has not proposed any travel holiday to NM or the mother.

[75] Father wants additional access.

[76] The court is not persuaded on a balance of probabilities that father has shown a material change in circumstances affecting or likely to affect the best interests of NM, even on the broadest of interpretations.

[77] However, in the event that I am wrong about that threshold criteria and most importantly wanting to take into account NM’s views and preferences, the court has undertaken the following analysis of all of the evidence through the lens of NM’s best interests.

Best Interests of NM

[78] The Children’s Law Reform Act, RSO 1990, as amended 2020 (CLRA or the Act) sets out in Part III, that parenting orders are only to be determined with respect to the best interests of the particular child before the court.

[79] Subsection 24 (2) of the Act provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests.

[80] Subsection 24 (3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child. It reads as follows:

• (a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
• (b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
• (c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
• (d) the history of care of the child;
• (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
• (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
• (g) any plans for the child’s care;
• (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
• (i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
• (j) any family violence and its impact on, among other things,
• (k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
• (l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
• (m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

[81] The list of best interests considerations in the Act is not exhaustive and is not to be used as a checklist. The court must take a holistic view of NM, her needs and the ability of those around her to meet those needs. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736; Phillips v. Phillips, 2021 ONSC 2480.

[82] Section 28 of the Act sets out the different types of parenting orders that a court can make. The relevant subsections of section 28 for this case are as follows:

Parenting Orders and Contact Orders

28 (1) The court to which an application is made under section 21,

• (a) may by order grant,
  • (i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2),
  • (ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or
  • (iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);
• (b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and
• (c) may make any additional order the court considers necessary and proper in the circumstances, including an order,
  • (i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,
  • (ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,
  • (iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,
  • (iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,
  • (v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,
  • (vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or
  • (vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

Allocation of parenting time

(5) The court may allocate parenting time with respect to a child by way of a schedule.

Parenting time, day-to-day decisions

(6) Unless the court orders otherwise, a person to whom the court allocates parenting time with respect to a child has exclusive authority during that time to make day-to-day decisions affecting the child.

Parenting plan

(7) The court shall include in a parenting order or contact order any written parenting plan submitted by the parties that contains the elements relating to decision-making responsibility, parenting time or contact to which the parties agree, subject to any changes the court may specify if it considers it to be in the best interests of the child to do so.

Right to ask for and receive information

(8) Unless a court orders otherwise, a person to whom decision-making responsibility or parenting time has been granted with respect to a child under a parenting order is entitled to ask for and, subject to any applicable laws, receive information about the child’s well-being, including in relation to the child’s health and education, from,

• (a) any other person to whom decision-making responsibility or parenting time has been granted with respect to the child under a parenting order; and
• (b) any other person who is likely to have such information.

[83] Subsection 33.1 (2) of the Act addresses the importance of the parties protecting children from conflict. It reads as follows:

(2) A party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding.

[84] Subsection 24 (6) of the Act states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

[85] In Knapp v. Knapp, 2021 ONCA 305, the court set out that there is no presumption that maximum parenting time equates with equal-parenting time. Every family, it wrote, is different and the court must focus on the child’s best interests in determining the appropriate parenting time order.

[86] Subsection 24 (6) of the Act does not override the best interests test contained in section 24. Rather, it means that a child should have as much time as possible with each parent consistent with the child’s best interests. The principle is subject to what is in the best interests of the children, given their ages, temperaments and stages of development. See: Ammar v. Smith, 2021 ONSC 3204.

[87] The best interests of a child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being. Moreover, the child has a right to have contact with both parents. See: Klymenko v. Klymenko, 2020 ONSC 5451.

[88] A custodial parent must not just accommodate access, they must facilitate it. See; Scrivo v. Scrivo, 2012 ONSC 2727, 2012 CarswellOnt 5545; Tran v. Chen, 2012 ONSC 3994, 2012 CarswellOnt 8551.

[89] In his motion to change, the father specifically wants to be able to travel with NM outside of the country, to have specified holiday and summer vacation time with NM, to increase his weekday access to an additional day after school, and to extend his alternate weekends to the Monday at school. He in particular wants to be able to pick up NM at school and drop her off at school.

[90] In this case, the best interests of NM can easily be found in the following evidence:

• NM enjoys living with her mother. Although sole decision-making by her mother is not an issue before the court, the father’s allegations and insinuations are that the mother is not as good a parent as he is. The court finds no merit in that argument; NM is thriving with her mother. She is described by her mother as a “beautiful, intelligent fourteen year old girl”.
• NM is a healthy normal teenager. She is doing fine in school. She is in grade 9 and joined two different clubs. She also participates in an elite track and field club. She has always struggled a bit with math and is gaining extra help with an online tutorial.
• NM has friends both at school and at her track club.
• NM has always had regular visits with her father.

[91] Courts have increasingly emphasized the importance of obtaining the views and preferences of children. See Mattina v. Mattina, 2018 ONCA 641.

[92] In De Melo v. De Melo, 2015 ONCA 598, at para. 12, the court made these comments:

…court-constructed access arrangements should not be imposed on teenaged children who have repeatedly confirmed that they do not wish contact with the non-custodial parent and that they wish to maintain existing custodial and access arrangements.

[93] In Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 499: the court said:

A classic family law custody dispute gave rise to the Children's Lawyer's involvement in this case. Over the past several years, courts have taken great initiative to seek out and consider the views and preferences of the child. Professors Birnbaum and Bala explain:

The movement towards child inclusion in decision-making in education, medical treatment, and various areas of the law, including separation and divorce, has grown over the last decade. Studies have explored children's rights as citizens, children's perspectives on family relationships and what is a family, and children's attitudes about parental separation and participation in the decision-making process about post-separation parenting. Research clearly suggests that children's inclusion in the post-separation decision-making process is important to the promotion of their well-being.

[94] The father has criticized the Voice of the Child report. His criticisms are, however, without any merit, for the following reasons:

• Possible interpretations are not evidence of probabilities.
• The social worker is a very experienced clinician: 17 years experience since her MSW; in good standing with both professional bodies; 34 Voice of the Child reports; no substantiated complaints.
• The social worker followed the same methodology as in all other reports and
• The social worker was fair and balanced in her report and in her presentation.

[95] The Voice of NM was heartbreaking:

• “she wants her parents to know that this is stressful for her”
• “she would like her parenting time to remain the same”
• she is more comfortable with her mother being around school than her father
• she wants all this court stuff to go away and for everything to be normal
• normal means no court, no fighting and maintaining the same access arrangements.
• she would like some flexibility; so if she doesn’t want to see her father on a particular day, she wants her father to accept that change.
• she is happy to spend equal holiday time with each parent.
• she just wants the situation to stay the same with some flexibility.

[96] This report was filed January 25, 2021 and this case still went to trial on February 16, 2022. Father will not accept or respect NM’s feelings.

[97] The court finds that:

• NM is happy with the current schedule.
• Mother and paternal aunt are happy with the paternal aunt being the go between for communication; father’s insistence on communicating directly with the mother is a form of control and bullying. There is no child-focused reason to change this provision.
• There is no good reason to have her school as the transfer point; NM herself is not comfortable with this proposed change.
• NM is a teenager now and wants to socialize with friends more.
• Mother is supportive and encourages NM to spend time with her father.
• NM is comfortable having friends to her mother’s home but has not asked to do so at her father’s as she is worried about it.
• Changes have been readily made by mother to permit additional time for father to take NM to track practices when NM wants and to change the transfer location due to the pandemic.
• Mother respects NM’s views; father does not respect NM’s views.
• Father persists in being suspicious of mother’s negative influence on NM; despite there being not one shred of evidence to support his suspicions.
• NM would like some flexibility and may be amenable to make up time.
• NM is not always comfortable telling her father what she wants; but she will tell mother.
• Father has placed NM in this ongoing conflict for a long time now.

[98] It is in the best interests of NM not to change the parenting time order; other than to give NM some flexibility. NM’s views may also need the support of her mother in dealing with her father from time to time.

[99] Mother is clearly afraid of the father. They have a very difficult background. Father refuses to accept any responsibility for that fear nor to do anything that might allay the mother’s fears. He has managed to litigate with impunity. He is now litigating against his own daughter’s interests just to show both mother and NM that he can.

[100] The court orders that father’s parenting time should be the same as set out in the August 2, 2018 parenting time order as amended by the order of November 12, 2019. However, the court will add two clauses in order to fine tune that order, support NM, and provide some additional clarity:

• Parenting time changes may be made to the order, including holiday, summer, and travel parenting time with father, with the agreement of the mother and NM.
• NM is always able to contact her other parent when she is with one parent.

[101] Father did not pursue the change of name for NM. NM is far beyond the age when a parent should request a change of name.

Final Order

1. The order of August 2, 2018 as amended by the November 12, 2019 order, is further amended by adding:
   • Parenting time changes may be made to this order, including holiday, summer, and travel time with father subject to the agreement of the mother and NM.
   • NM is always able to contact her other parent when she is with one parent.
2. If counsel cannot agree on costs, mother may serve and file with the trial office written submissions within 2 weeks, of a maximum length of 3 pages, plus Bills and Offers; Father may serve and file a reply with the trial office, within 1 week of receiving the mother’s submissions, with the same maximum page length; no reply.
3. The return date of April 30, 2022 is vacated.

February 25, 2022 Signed: Justice D Paulseth