ONTARIO COURT OF JUSTICE
DATE: 2025-05-29
COURT FILE No.: Woodstock D185/14
BETWEEN:
Frankie May Dey
Applicant
— AND —
Ryan David Cronk
Respondent
Before Justice S. E. J. Paull
Trial held on May 26, 27, 2025
Reasons for Judgement on May 29, 2025
Nolan D.A. Wilson ........................................................................ counsel for the applicant
Respondent ............................................................................... appearing on his own behalf
PAULL J.:
[1] The parties are the parents of one child, Lailah born […], 2014. Mr. Cronk brought a motion to change seeking to vary the decision-making and parenting time arrangements under the current final order dated December 11, 2014. Ms. Dey opposed the extent of the changes sought by Mr. Cronk but conceded that a material change in circumstances has occurred since the order was made.
[2] To their credit, the parties were successful before and during trial at resolving most of the outstanding issues.
[3] They consented to an order dated December 11, 2024 to a partial holiday schedule, that each have full access to information regarding the child, and that each have the ability to meet independently with any third parties involved with the child. Both parties were also to be listed as emergency contacts with the school.
[4] On January 13, 2025 Mr. Cronk withdrew his claim to vary decision-making. At the beginning of the trial the parties filed a further consent to additional holiday time which included shared parenting during the school summer holiday on a two-week rotation and a sharing of Easter and Thanksgiving weekends.
[5] During closing submissions the parties further consented to a final order that Lailah remain in the primary care of Ms. Dey with Mr. Cronk having parenting time on alternate weekends from Friday with the pickup at school to Sunday at 7 PM, and every Tuesday overnight with the pickup and drop off at the school.
[6] As a result of these orders and agreements the primary issue to be addressed by the end of the trial was whether Mr. Cronk, in addition to the Tuesday overnight visit, would also have Thursday overnight during school. There was an additional minor issue related to whether the Father’s Day visit, if it did not fall on a regular parenting time weekend for Mr. Cronk, would end on Sunday at 7 PM or the following morning with a return to school.
[7] For reasons outlined below it was also necessary to address various collateral issues including the nature of the parents’ communication and interactions and each parent’s ability to communicate with the child while in the other’s care.
[8] In addition to the parties, the Court received evidence from Mr. Cronk’s partner and her adult son, and OCL clinician, Christian Wilson who prepared the Voice of the Child Report dated May 23, 2024.
The Law
[9] Section 29 of the Children's Law Reform Act (the Act) provides the statutory authority for changing a parenting order on either a temporary or final basis. It states:
A court shall not make an order under this Part that varies a parenting order or contact 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.
[10] The Supreme Court of Canada decision in Gordon v. Goertz (1996), 19 R.F.L. (4th) 177 S.C.C. sets out a two-stage process for the court to conduct in motions to change custody or access (now decision-making and parenting time) as follows:
First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
[11] If a material change in circumstances is found the court must then determine what decision-making and parenting time order is in the child’s best interest. Any proceeding with respect to children is determined with respect to the best interests of the particular child before the court in accordance with the considerations set out in section 24 of the Children’s Law Reform Act (the Act).
[12] 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.
[13] The following non-exhaustive list of factors have been articulated in the case law as basic principles with respect to the best interest test:
The child’s best interests are not merely “paramount” – they are the only consideration in this analysis: Gordon v. Goertz, para. 28; Mattina v. Mattina, 2018 ONCA 641
The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. Gordon v. Goertz, [1996] 2 S.C.R. 27.
No one factor in the statutory definition of a child’s best interests is given statutory pre-eminence. Wilson v. Wilson, 2015 ONSC 479.
A young child with attachments to both parents needs sufficient contact with both, without prolonged separations to maintain a meaningful and close relationship with them. Van Den Driessche v. Van Den Driessche, 2011 CarswellMan 255 (Q.B. Family); Wilson v. Wilson, 2015 ONSC 479.
In resolving custody disputes, emphasis must be placed on the critical importance of bonding, attachment and stability in the lives of young children. Barnes v. Parks
The court should consider the level of hostility and the extent to which that stability may undermine the child’s stability. Wilson v. Wilson, 2015 ONSC 479.
The best interest analysis is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. Phillips v. Phillips, 2021 ONSC 2480; Pereira v. Ramos, 2021 ONSC 1736.
[14] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. Griffiths v. Griffiths, 2005 ONCJ 235. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. Warcop v. Warcop.
[15] The test for determining parenting time is what order is in the best interests of the child. 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.
[16] 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.
Background and Evidence
[17] The parties are the subject of the final order of December 11, 2014, which was made on an uncontested basis, that Ms. Dey have custody of the child, and that Mr. Cronk have reasonable access on reasonable notice, with the additional terms that the child not be around his partner at the time, and that he not leave Woodstock with the child without the consent of Ms. Dey.
[18] Mr. Cronk’s testimony included the following:
He was forthright in his evidence that he was not in a good place at the time of the first order as a result of his drug and alcohol use.
He attended a rehabilitation program in or around 2017 and has stabilized his life since then. He lives in a stable relationship with his partner Valerie Hurley and her adult children who all get along very well with Lailah and consider her part of their family.
He and Ms. Hurley own their own home and Lailah has her own room. Their home is approximately a 20–25-minute drive from Lailah’s school.
He is a unionized employee in the concrete industry and earns top-tier wages as a result of his skill and experience.
He testified he has always had difficulties with exercising parenting time given the discretionary nature of the order. He alleges that Ms. Dey has not been reasonable in agreeing to access, and that she and her mother are responsible for conflict during exchanges.
Despite these issues he was able to remain a part of Lailah’s life and when the motion to change was commenced (first returnable in April 2024) he was generally seeing Lailah alternate weekends from Friday to Sunday, but there continued to be difficulties with those occurring consistently and with him having any other parenting time.
After the Voice of the Child Report was released he began having Tuesday’s overnight each week. He felt strongly that adding an additional overnight on Thursdays during the school week would not be disruptive to Lailah, as he has a stable home with positive routines. He denied Ms. Dey’s allegations of Lailah returning home unwashed at times.
He has concerns with the Voice of the Child Report. He felt the conclusions were vague, that the interview in Ms. Dey’s home was not private or independent, and that the clinician did not meet with him to discuss the matter. He also felt that since the Voice of the Child Report was 12 months old it did not represent Lailah’s current views and preferences.
Under cross-examination he testified that he recently started doing pickups and drop-offs for the Tuesday visit at school and that this arrangement has gone “flawlessly”.
He did acknowledge that he often picks up the child early from school on these days as he takes her to various appointments, but did ultimately concede that it was also to reduce the conflict at exchanges. He also acknowledged that recently he began keeping the child overnight on Sundays and dropping her off at school on Monday morning also to avoid conflict.
He stated that Ms. Dey was not providing him with timely notification of school and other activities. Despite the consent order of December 11, 2024 which granted him direct access to this information, he was told by the school that it would only “change the paperwork” to permit him to receive information directly next September. He provided the order to the school and acknowledged he is now an emergency contact. He spoke highly of the principal and teacher and stated that he regularly interacts with them during pickups and drop-offs which are now at the school.
[19] Valerie Hurley testified on behalf of Mr. Cronk as follows:
She and Mr. Cronk have been in a relationship for five years. She has two adult children from a prior relationship, and they all have a very close relationship with Lailah.
Due to her flexibility at work she assists with the driving for Mr. Cronk’s parenting time when he is working.
There has been conflict at exchanges, which has included Ms. Dey’s mother taking pictures of them, but things have been smoother since the pickups and drop-offs have been at the school.
She thinks the police may have been called 4 or 5 times in the last year, mostly by Ms. Dey.
She acknowledged that they started doing the pickups from the school and that they would remove Lailah early from school to avoid conflict.
[20] Valerie Hurley’s son, Landon Geiser, testified briefly on behalf of Mr. Cronk as follows:
He is 18 years old and lives with his mother, sister, and Mr. Cronk.
He has a close relationship with Lailah and considers her to be his sister. They enjoy many activities together from walks and bike rides to video games and music.
He wishes Lailah would be around more.
[21] Ms. Dey testified as follows:
Prior to the commencement of the motion to change Mr. Cronk’s parenting time was typically alternate weekends from Friday at 6 PM to Sunday at 6 PM.
There have always been difficulties with communication with Mr. Cronk and his communications are harassing and excessive.
She supports the conclusions in the Voice of the Child Report and disputes that Lailah’s interview in her home was not private or independent. When she received the Report she immediately agreed to add the Tuesday overnight. While this has gone “OK” from her perspective, she has observed Lailah to be anxious around Mr. Cronk’s parenting time.
She sees adding a further overnight during the school week to be potentially disruptive to Lailah in the circumstances.
She is concerned with Mr. Cronk attending the school and removing Lailah early. He began picking Lailah up at school without asking her and when she attended to pick her up Lailah was not there.
She noted that Lailah occasionally returns from Mr. Cronk’s home unwashed.
[22] Christian Wilson is a Clinical Investigator with the Office of the Children’s Lawyer and prepared a Voice of the Child (VOC) Report dated May 23, 2024 on the issue of the views of Lailah with respect parenting time with both parents.
[23] According to the Report, Lailah was interviewed virtually in each parent’s home and concluded with the following summary:
Lailah advised that she understood the purpose of the OCL involvement, specifically that the court was looking for her views regarding his [sic] perspective on time with her parents.
Lailah actively participated in the interviews and appeared to discuss and share information freely and honestly.
In both interviews, Lailah consistently stated that she would like to continue to live with her mother as her primary residence. Lailah consistently stated that she wished to spend more time with her father and feels that only seeing him for “four and a half” days per month isn’t enough. Lailah stated that she would like to see her father, even for a couple of hours in the evenings, or an overnight, during the week. Lailah stated that she would like her father to be able to pick her up and drop her off at school, especially if she is able to spend one night during the week. Lailah advised that she doesn’t want to spend a third weekend with her father because she enjoys the equal time on weekends with each parent but would like more time during the week. Lailah stated that she would like to alternate weeks with her mother and father during the summer. Lailah stated that she would like her father to attend her school and dance events. Lailah also advised that she would like an opportunity to visit her paternal grandparents in New Brunswick.
I confirm that I have reviewed the statements with the child for the purposes of accuracy.
[24] Mr. Wilson provided additional testimony at trial including the following:
He has a Masters of Social Work and is a registered social worker.
He has been a panel member of the OCL since 2011.
He followed the OCL’s best practices for preparing the VOC Report including reviewing the parties’ intake forms, scheduling appointments with the child, conducting private interviews with the child in each parent’s home, then preparing the Report based on statements which were reviewed for accuracy with the child.
He had no concerns that Lailah’s interviews were not private or independent. It is his practice to always ask the child if they are in a private space, and in this case Lailah confirmed that she was.
[25] I find that the contents of the VOC Report represent Lailah’s genuine views and preferences.
[26] Mr. Wilson is an experienced clinician with the OCL and followed the best practices for completing the Report. He observed no concerns during the interviews and there were no indications of influence noted. Lailah raised no concerns and confirmed the interviews were private when asked.
[27] Lailah’s views and preferences were consistent during and between each interview. Her views and preferences were not vague. She was clear she wanted to spend more time with her father which could include one overnight during the week, but that she wished to continue to live primarily with her mother.
[28] Lailah was 10 years old the time of the interviews and Mr. Wilson characterized her as friendly, easy-going, transparent and open when discussing her wishes. Mr. Wilson concluded that Lailah understood his explanation for the purpose of the meeting and provided her “clear opinion on her wishes”.
[29] The independent and professional nature of the OCL lends credence to the information provided in the Report.
[30] Despite the fact that the Report is approximately 12 months old it nonetheless represents the only independent evidence the court has regarding Lailah’s wishes. While I have no doubt that Lailah may well express varying wishes to each of her parents, the views expressed to the clinician were independent, clear, and unequivocal.
[31] In all the circumstances Lailah’s views and preferences as expressed in the VOC Report are entitled to significant weight.
[32] With respect to the allegations each party make about the conflict at exchanges and the inappropriate or harassing communications, no documentary evidence was filed by either party during this trial. Unfortunately, there were no text messages or Our Family Wizard communications provided to corroborate these claims. Further, there were no school records or police occurrence reports which would also have been reasonable to provide given the allegations.
[33] What can be found on the evidence is that it is abundantly clear that the parties are unable to communicate effectively or respectfully. Both appear to communicate at times and in a way that seems designed to withhold important information and to antagonize the other.
[34] For example, when Lailah injured her foot and needed medical care while with Mr. Cronk, and Ms. Dey asked for specific information, he failed to provide it and instead sent repeated text messages about a pair of jeans. Mr. Cronk did not dispute this. If Mr. Cronk did not, as he stated, have the specific information from the doctor at the time he should have said so and at least communicated to Ms. Dey in a timely manner what had happened to their daughter and what information he did have.
[35] Likewise, Ms. Dey did not dispute that on another occasion she did not advise Mr. Cronk that she was taking Lailah out of school for three days and travelling to the U.S. for a Taylor Swift concert.
[36] While neither party was required by a court order to communicate this information, these are examples of the lack of mutual respect which contributes to parental conflict and distrust and is behaviour which undermines the child’s best interests.
[37] It was also a concern to this Court that Mr. Cronk, without Ms. Dey’s consent or a court order, and despite the lengthy status quo, would unilaterally start doing pickups at school and taking the child out of school early on occasions. It was clear Ms. Dey did not consent to this at the time and appears to have simply acquiesced to it.
[38] While pickups and drop-offs at school may well be a way to reduce parental conflict and the risk of Lailah’s exposure to it, to do this unilaterally and by removing her early from school before Ms. Dey’s arrival was neither reasonable nor child focused. He did this without a court order and despite the status quo. He did this to get the “upper hand”. Mr. Cronk’s reference to this arrangement as “flawless” in the circumstances shows a lack of insight on his part and appears to have resulted, not surprisingly, in one of the calls to police.
[39] Further, Mr. Cronk continues to blame Ms. Dey for not communicating about school and other activities. I do not find that Ms. Dey is responsible for this. She consented to specific terms in December 2024 including that Mr. Cronk have direct access to information including from the school. I do not accept Mr. Cronk’s assertion that the school, despite being provided with a copy of the order, was simply not willing or able to update its “paperwork” to permit him to get this information until the next school year. No evidence directly from the school was filed to support this claim.
[40] Mr. Cronk has a court ordered right to this information, and he acknowledged he provided the order to the school and has met regularly with the principal and teacher at pickups and drop-offs. I would also note that the VOC Report states that Lailah indicated “that her father does not attend any of her school events or dance functions, despite her letting him know when they are”. If he is not aware of school or other activities with sufficient notice, the responsibility in the circumstances rests with him not being proactive.
[41] I accept Ms. Dey’s observation that Lailah appears anxious at times regarding the parenting arrangements. However, I find that it is likely due to both parents’ inability to communicate and treat each other with respect. The VOC Report is clear that Lailah has a close and loving bond with both parents and enjoys a stable and happy place in each home. I am also satisfied that each parent is able to meet Lailah’s needs when in their respective care. There is no independent evidence from the school or the CAS to suggest that both parents are not loving and capable, including when it comes to hygiene.
[42] The concerns arise when Lailah’s two worlds interact, and I have no doubt that Lailah is acutely aware of how her parents feel and treat each other. While disagreeing on who is responsible, both parties agreed that communications were difficult and parent exchanges often conflictual. Parents have an obligation to shield their children from parental conflict and both parties need to do a better job in this regard.
[43] Overall, I find that there is a significant inability of the parties to communicate effectively or respectfully, which creates parental conflict and a risk of Lailah being exposed to it.
Analysis
[44] The onus is on Mr. Cronk as the moving party to establish a material change in circumstances on a motion to change.
[45] Ms. Dey conceded that that there has been a material change in circumstances since the order was made. This was a reasonable concession. Even had she not done so the Court would have found a material change in circumstances based the fact that Lailah was a few months old when the original order was made and is now 11 years old. Mr. Cronk acknowledges personal difficulties in 2014 and I accept that he has worked hard to resolve these issues and is now stable. Further, the order under review does not contain a specific parenting schedule or terms governing the parties’ interactions. These have led to ongoing parental conflict which creates a risk to Lailah.
[46] These changes since the last order are material to the child and the parents’ ability to meet her needs, and were not foreseeable when the order was made in 2014, and support a finding of a material change in circumstances.
[47] On the basis of this finding, the Court is then tasked with conducting a fresh inquiry into the best interests of the child considering the entirety of the circumstances.
[48] Prior to this proceeding the status quo was generally that Mr. Cronk have parenting time on alternate weekends from Friday to Sunday. Since the VOC Report was released Ms. Dey agreed to add the Tuesday overnight and is now agreeing that Lailah be picked up and dropped off at school for that visit and for the pickup on alternate Fridays. This will reduce the opportunities for the parties to interact with Lailah present which is in her best interest.
[49] As a result of the parties’ agreements, the issue to be decided is whether it is in Lailah’s best interest to also spend overnight every Thursday night with her father during school. While I am satisfied that Lailah enjoys the love and support of both parents, I am not of the view that adding each Thursday overnight is in Lailah’s best interests for the following reasons.
[50] Firstly, this would essentially result in a shared parenting arrangement on school days with the child going back and forth between her parents’ homes every day. Any parenting arrangement that requires the child to transition between homes every day during the school week is a lot to expect from an 11-year-old.
[51] Further, such a parenting plan would require a high level of communication and coordination between the parents to be successful. It requires parents to coordinate everything from homework to school activities and trips. It requires parents who are flexible and who have above average abilities to communicate effectively and respectfully.
[52] Unfortunately, none of these elements are present here. Parties who have required police involvement to manage their interactions are not good candidates for an arrangement that requires an increased need for flexibility and cooperation. The current circumstances do not support extending Mr. Cronk’s alternate weekends to Monday morning or adding Thursday overnight. Due to the entrenched nature of the parties’ relationship, there is no basis to conclude that this is likely to change in the foreseeable future.
[53] Secondly, such a schedule is not in accordance with Lailah’s clear views and preferences as noted in the VOC Report which I have accepted and already determined are entitled to significant weight in the circumstances.
[54] Overall, the status quo has for many years been that Lailah resides in primary care of her mother during the school week. It is an arrangement she wishes to continue, and there is no evidence that Ms. Dey has not ensured that Lailah’s educational needs are being met. Further, the parent’s limited ability to communicate and cooperate does not support the schedule proposed by Mr. Cronk which is essentially a shared parenting plan during the school week with the child moving back and forth every day.
[55] I would have come to the same conclusion with respect to extending the alternate weekend visit to Monday morning at school had Mr. Cronk not indicated in closing arguments that he was prepared to consent to a return on Sunday at 7 PM pursuant to the terms of Exhibit 4.
[56] However, Lailah will spend every Tuesday overnight with her father during school and an equal sharing of weekends and holidays, including the school summer holiday which will permit them to travel to visit extended family.
[57] With respect to Father’s Day, when it falls on a weekend that is not Mr. Cronk's regular parenting time, I see no reason why in this limited circumstance that the parenting time not be extended to Monday morning with the return to school to give Lailah all day to spend with her father.
[58] As noted in the VOC Report Lailah stated that she does not have any contact with her father while she is with her mother. It was unclear whether she has contact with her mother when she was with her father. The ability to communicate and see a parent is the right of the child. Lailah shall be able to communicate freely and privately with the other parent when not in their care. Each party shall be required to advise Lailah of this and encourage and facilitate her ability to do so.
[59] Given the level of mistrust between the parents and the potential for conflict the Court will impose additional orders to limit the risk to Lailah. The parents shall not discuss this litigation with her other than to confirm with her the schedule, and they shall ensure that Lailah is not exposed to anyone speaking negatively about the other parent or their family.
[60] Further, the parties shall not communicate in the presence of the child or attend the other’s home uninvited unless pursuant to the terms of a final order. Mr. Cronk shall be responsible for transportation for his parenting time. When the parties are required to attend the home of the other parent they shall do so on time and remain in their vehicle or in their residence while waiting for Lailah.
[61] The issue is not to reward or punish either parent but to put in place an arrangement that serves the interests of the child. While the parties are to be commended for resolving on a reasonable basis the majority of the issues, based on the considerations outlined herein it is not in Lailah’s best interests to extend parenting time during the school week further than the Tuesday overnight that has been agreed upon.
[62] On the basis of the foregoing a final order shall issue as follows:
The terms of the final order of December 11, 2024 shall continue.
The terms of the final order of May 26, 2025 shall continue.
Paragraph two of the order of December 11, 2014 is hereby deleted and replaced with the following:
a. Terms per Exhibit 4 paragraph 1 (a-c) (regarding alternate weekend access and Tuesday overnight during the school week).
b. Terms per Exhibit 4 paragraph 2 (c) (regarding the Christmas school break), with the additional term that the remaining Christmas school break shall be shared equally between the parties.
c. If Mother’s Day falls on a weekend where Mr. Cronk is exercising his parenting time, the child shall be returned to the care of Ms. Dey at 9 AM on Sunday.
d. If Father’s Day falls on a weekend that is not Mr. Cronk’s regular weekend parenting time, he shall have the child his care from Sunday at 9 AM and return the child to school on Monday morning.
e. Mr. Cronk shall be responsible for transportation for his parenting time.
f. Neither party shall discuss this litigation with the child, or any issues related to this matter other than to confirm with her the parenting schedule outlined herein. Neither party will speak negatively about the other parent or permit anyone in their household to speak to the child negatively about the other party or their family.
g. For the purposes of exercising parenting time Mr. Cronk will be responsible for the driving and he will ensure that the child is picked up or dropped off on time whether at school or at Ms. Dey’s home. If the pickup is at Ms. Dey’s home, she shall ensure that the child is ready to leave on time.
h. The parties shall not communicate in the presence of the child or permit her to be exposed adult conflict.
i. Neither party shall attend the home of the other parent unless invited or pursuant to the terms of a final order. When required to attend the home of the other parent the parties or their designate shall remain in their car or in their residence.
j. The parties are free to travel with the child during their parenting time. The parties will give written notice of any travel with the child outside of Ontario which shall include dates and contact information. If required, the parties shall execute any consent reasonably required to permit the child to travel with the other parent.
k. The child shall be free to communicate with either parent when not in their care. The parties shall both advise the child of this and encourage and facilitate the child’s private communication with the other parent pursuant to the child’s reasonable requests.
[63] The parties are strongly encouraged to agree upon the issue of costs, if any. However, if either party is seeking costs and the parties are not able to agree, the party seeking an order for costs shall serve and file written submissions, not to exceed three pages, excluding attachments which shall include any bill of costs and any offers to settle by June 13, 2025, with the responding party filing written submissions, not to exceed three pages, excluding attachments which shall include any bill of costs and any offers to settle by June 27, 2025. If no submissions are received from the party seeking costs by the deadline there shall be no order as to costs.
Released: May 29, 2025
Signed: “Justice S. E. J. Paull”