COURT FILE NO.: 3291/08 002

DATE: 2014-08-11 AMENDED DATE: 2014-10-29

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

KIM ANN DURKIN Applicant

• and -

RICHARD ALLAN CUNNINGHAM Respondent

Counsel: William Kort, for the Applicant Noel A. Nolasco da Silva, for the Respondent

HEARD: January 2, 2014, at Brampton, Ontario

BEFORE: Price J.

Amended Reasons For Order

(See underlining on pages 7, 28, 29, 32 to 35)

NATURE OF MOTION

[1] The Divorce Act and jurisprudence makes it clear that a child’s contact with each parent should be maximized to the extent as it is in the child’s best interests. When the child’s best interests require that a parent take steps to address concerns that prevent more complete access, it is in the child’s interests that the access issue be reviewed once those steps have been taken. A motion by a parent to vary a final order, made on the basis that the applicant has taken the steps required, is not precluded by the applicant’s arrears of child support unless there is no reasonable explanation or satisfactory remedy for the arrears.

[2] After Kim Durkin’s and Richard Cunningham’s 7 ½ year relationship ended on September 12, 2006, Ms. Durkin took the parties two children, Blake and Ryan, then 5 and 3 years old, respectively, and moved to her parents’ home in Georgetown, northwest of Toronto. Mr. Cunningham, after living with friends for a period of time, moved to his parents’ home in Kleinberg, north of Toronto. Kleinberg is approximately 35 kilometres from Georgetown; a 40 minute drive.

[3] Ms. Durkin began the present proceeding by an Application in which she sought child support from Mr. Cunningham and a restraining order against him. The parties consented to a final order of Ricchetti J., in the hope that it would end their conflict. Instead, it gave rise to new litigation as to whether the order was being complied with.

[4] Mr. Cunningham alleges that Ms. Durkin misused the discretion which the court orders gave her. She monopolized the children’s time, he says, by scheduling soccer and hockey activities at his access times, effectively denying him access because the terms of his probation prohibited him from being at the same place as Ms. Durkin. He seeks a variation of Ricchetti J.’s Order, to gain meaningful access to the children.

[5] Ms. Durkin opposed Mr. Cunningham’s motion on the ground that he failed to comply with orders for costs and child support and on the ground that she has not, in fact, denied him access and that there has not been a material change in circumstances in the three years since Ricchetti J. made his order.

BACKGROUND FACTS

[6] Ms. Durkin and Mr. Cunningham lived together from January 2000 to September 12, 2006. They have two children, Blake Joseph Cunningham, who is 13 years old (born April 3, 2001), and Ryan Matthew Cunningham, who is 11 (born June 24, 2003).

Family Law Proceeding

[7] In May 2008, Ms. Durkin began the present proceeding by an Application in which she sought child support from Mr. Cunningham and a restraining order against him.

[8] At an Early Case Conference on October 6, 2008, the parties consented to an order by Van Melle J. which provided that:

1. Mr. Cunningham would exercise access to the children at a Supervised Access Centre, such access to be phased in, beginning with two hours, and increasing, if access was going well.
2. Beginning October 1, 2008, Mr. Cunningham would, on a without prejudice basis, pay Ms. Durkin child support of $495 per month, plus $85 toward s.7 expenses, based on his annual income of $33,600.

The Criminal Proceeding

[9] On November 5, 2008, Mr. Cunningham appeared before Brown J., in the Ontario Court of Justice in Milton, and pleaded guilty to a charge that, between January 1 and April 5, 2008, he criminally harassed Ms. Durkin by repeatedly communicating with her, causing her to fear for her safety. Brown J. noted that Mr. Cunningham had no criminal record and no history of violence. He granted him a conditional discharge and placed him on probation for 18 months (that is, until May 4, 2010), on terms that required him to participate in Partner Assault Response (PARS) counselling, a component of Ontario’s Domestic Violence Court program that provides specialized counselling by community-based agencies over a sixteen week period. The terms also prohibited Mr. Cunningham from having contact with Ms. Durkin and from attending within 300 metres of her place of residence or employment unless pursuant to a family court order or with her written revocable consent.

Resumption of the Family Law Proceeding

[10] On January 29, 2009, Herold J., as a term of an adjournment, and on a without prejudice basis, increased Mr. Cunningham’s contribution to s.7 expenses to $200 per month.

Motion for custody and support

[11] On March 12, 2009, the parties appeared, for the third time, for a hearing of Ms. Durkin’s motion for custody and child support. Mr. Cunningham consented to a final order by Coats J. granting Ms. Durkin custody of the children, but asked that the balance of the motion be adjourned once again to enable him to retain counsel. Coats J. ordered Mr. Cunningham to pay Ms. Durkin:

1. retroactive to October 1, 2008, $368.90 per month as his contribution to the payment of the children’s s.7 expenses, consisting of $185 per week for day care and $675 per year for hockey, subject to credit for amounts paid to that date;
2. Ms. Durkin’s costs of the motion in the amount of $4,500, payable at the rate of $150 per month, beginning June 1, 2009.

[12] Coats J. ordered Ms. Durkin’s claim for child support and contribution to the payment of s.7 expenses from the date of separation to the date of the first temporary be dealt with at trial.

Settlement Conference

[13] At a Settlement Conference on April 28, 2009, Coats J. placed the proceeding on the trial list and directed that a Trial Management Conference take place on October 29, 2009. She ordered Mr. Cunningham to pay further costs of $300 for failing to deliver a Settlement Conference Brief.

Trial Management Conference

[14] At the Trial Management Conference on October 29, 2009, the parties consented to an order by Coats J. that Mr. Cunningham continue exercising supervised access on alternate Sundays, from 11:30 a.m. to 1:30 p.m., until the expiry of his probation in early May 2010, whereupon he could have such access as the court granted, on application by either party.

[15] Coats J. ordered Mr. Cunningham to pay the following amounts to Ms. Durkin, beginning November 1, 2009:

1. Child support and contribution to the payment of daycare and hockey expenses, in the collective amount of $571 per month, based on Mr. Cunningham’s stated annual income of $38,107;
2. Retroactive child support and contribution to the payment of s.7 expenses, fixed at $10,000, at the rate of $150 per month;
3. Arrears of child support and contribution to s.7 expenses in the amount of $2,706.20;
4. Further costs in the amount of $50.

[16] At the Trial Management Conference, Coats J. noted that all issues except access had been resolved. She scheduled a further Settlement Conference to take place on April 1, 2010, to address that issue.

Further Settlement Conference

[17] On April 1, 2010, Mr. Cunningham failed to attend the Settlement Conference for that date and did not file a brief. When Ms. Durkin’s lawyer contacted him from court, Mr. Cunningham advised that he was at a job in Midland and thought that the Settlement Conference was later in the month. He consented to an order by Coats J. requesting the involvement of the Office of the Children’s Lawyer, continuing his supervised access on alternate Sundays from 11:30 a.m. to 1:30 p.m., and adjourning the Settlement Conference to January 25, 2011, with leave to Ms. Durkin to bring a motion, in the interval, on notice to Mr. Cunningham, for a restraining order.

Motion for Restraining Order

[18] Ms. Durkin’s motion for a restraining order was heard May 13, 2010, five days after Mr. Cunningham’s probation order expired. Mr. Cunningham did not attend, and Snowie J. granted Ms. Durkin the order she requested. The order, which did not specify a termination date, restrained Mr. Cunningham from:

1. molesting, annoying or harassing Ms. Durkin or the children, pursuant to Section 46(1) of the Family Law Act; and
2. coming within 300 metres of Ms. Durkin’s or the children’s residence or place of employment or education, except when exercising court-ordered access to the children.

Resumption of Settlement Conference

[19] When the Settlement Conference resumed on January 25, 2011, the court ordered the remaining issue of access to be tried at the end of March 2011, subject to a Trial Management Conference to be held on March 9. Because Mr. Cunningham had not attended the settlement conference on April 1, 2010, he was ordered to pay Ms. Durkin’s costs of that date of $500.

Ms. Durkin’s Motion to strike Mr. Cunningham’s Pleadings

[20] On March 31, 2011, Coats J. heard a motion by Ms. Durkin to strike Mr. Cunningham’s answer or postpone the trial as Mr. Cunningham had not fully complied with orders requiring him to pay her costs and child support. Coats J. refused the relief requested but ordered Mr. Cunningham to pay further costs of $1,000.

Settlement on the Eve of Trial

[21] On April 14, 2011, on the eve of trial, the parties signed final Minutes of Settlement, and Ricchetti J. made a consent order:

1. Directing Mr. Cunningham to complete the counselling in which he was then enrolled and, upon completing it (which he expected to do on April 28, 2011), to give Ms. Durkin proof that he had done so.
2. Granting Mr. Cunningham access to the children, beginning May 1st, 2011, on alternate Sundays, from 10:00 a.m. to 6:00 p.m., subject to variation on consent of the parties.
3. Directing Mr. Cunningham to complete his parenting counselling between May 1 and August 1, 2011, as recommended in paragraph vii (Page 16) of the Children’s Lawyer’s Report dated September 15, 2010, or an alternate course to which the parties agreed. He was also to continue drug and alcohol testing until August 1, 2011, as recommended in the Report.
4. Beginning August 1, 2011, Mr. Cunningham’s access was to increase to alternate weekends, from Saturday at 12:00 p.m. to Sunday at 6:00 p.m. or, if followed by a statutory holiday, to Monday at 6:00 p.m.
5. During August 2011, Mr. Cunningham was to exercise access to the children on 3 additional non-consecutive days, to be arranged by the parties.
6. Beginning November 1, 2011, Mr. Cunningham’s access to the children was to be enlarged to alternate weekends, from Friday at 6:00 p.m. to Sunday at 6:00 p.m., or if followed by a statutory holiday, to Monday at 6:00 p.m.
7. In addition, Mr. Cunningham was to have weekday access to the children, beginning May 1, 2011, on Wednesday evenings, from 3:00 p.m. to 7:00 p.m.
8. The Order of Snowie J. dated May 13, 2010, was varied to permit Mr. Cunningham to attend at the children’s school and extra-curricular activities and to pick them up and drop them off for access purposes. Murray J. remained seized of the access issue and, both parties were given leave to apply to him informally for further relief. Ms. Durkin was to give Mr. Cunningham reasonable notice of the children’s schedule of activities, to enable him to attend these.
9. The exchange of the children was to occur at “The Apple Factory” (Bovaird Road and Mississauga Road, Brampton). If Mr. Cunningham wanted to have a member of his family, or other responsible adult, pick up or drop off the children in his place, he was to ensure that the children were reasonably acquainted with the person.
10. Mr. Cunningham was permitted to communicate with the children by e-mail at an address which Ms. Durkin was to give to Mr. Cunningham as soon as practicable. The children were to be allowed to telephone Mr. Cunningham whenever they wished.
11. Mr. Cunningham was to have access to the children from December 25 at 4:00 p.m. to December 26, 2011, at 4:00 p.m. Beginning in January 2012, and was to have access to the children during annual school vacations, to be arranged by the parties or, if they were unable to agree, by motion to Murray J.
12. Regardless of the regular access schedule provided for, Mr. Cunningham was to have access to the children on Father’s Day and Ms. Durkin was to have them on Mother’s Day.

ISSUES

[22] The court must determine the following issues:

(a) Has Mr. Cunningham breached past court orders in such a way as to preclude him from applying to have the order of Ricchetti J. varied?

(b) Since Ricchetti J. made his final order, has there been a material change in circumstances affecting the children’s interests that justifies varying the order?

(c) If there has been a material change of circumstances, what terms of custody and access are in the children’s best interests?

(d) Is Ms. Durkin in contempt of Coats J.’s or Ricchetti J.’s orders and, if so, what sanction is appropriate?

(e) Should the restraining Order made by Snowie J. be rescinded?

POSITIONS OF THE PARTIES

[23] Mr. Cunningham says that he has been unable to exercise meaningful access to the children because Ms. Durkin has repeatedly denied access, in contempt of Ricchetti J.’s order. Additionally, he argues that the circumstances have materially changed since April 14, 2011 because he has satisfied the requirements in the order, the children are now three years older, and they have had access to him in the intervening years. He asks that the order be varied to specify the expanded access that the original order contemplated he would have in the future.

[24] Mr. Cunningham submits that expanded access at specified times, as contemplated by Ricchetti J.’s order, and more equitable sharing of access-related travel, are in the children’s best interests, as it will maximize their contact with both parents and reduce the parties’ conflict. Mr. Cunningham further submits that his child support obligations should be reduced to reflect the fact that his back pain has disabled him from earning income at the level he did when the existing order was made.

[25] Ms. Durkin denies that she repeatedly denied Mr. Cunningham access to the children. She states that on the occasions he cites, he either asked to cancel access himself, or consented to such cancellations, and that in some cases, he made up the access at later dates. She argues that as there has been no repeated breach of Ricchetti J.’s order, there has been no material change in circumstances, and the order should not be varied.

ANALYSIS AND EVIDENCE

a) Should Mr. Cunningham’s motion to vary access not proceed because he is in breach of orders requiring him to pay support?

[26] Ms. Durkin initially took the position that the court should not hear Mr. Cunningham’s motion because he had failed to comply with past orders requiring him to pay her costs. She relied on Rule 14(13), which provides that the court should not hear a matter unless past court orders have been complied with.

[27] Mr. Cunningham asserted that he had not willfully failed to comply. He pointed out that after he injured his back in the course of his employment as a landscaper, his parents, who are realtors, hired him to help them in their real estate firm. He was delayed in his ability to pay support and costs while he became qualified as a real estate broker and established himself as a realtor. Since then, he says, his parents have controlled the terms of his employment and the income he earns.

[28] The court adjourned the hearing of Mr. Cunningham’s motion until he began earning commissions as a real estate broker. Of the costs he had been ordered to pay, amounting in total to $6,340.00:

(a) $1,050.00 was added to the arrears collected by the Family Responsibility Office, as appears from FRO’s Statement of Arrears dated June 11, 2011.

(b) $5,000.00 was paid by Mr. Cunningham.

(c) The balance of $290.00 was paid following a further adjournment of the motion.

[29] Ms. Durkin has stated that she does not intend to press her argument that Mr. Cunningham should be found in contempt of the child support order. Nevertheless, I will address it briefly, as it provides some of the context for delineating between the issues of child support and access, which is required.

[30] Reilly J. in V.(S.) v. I.(T.), set out the principles that apply to determinations as to whether a person is in contempt, as follows:

1. A finding of contempt requires a deliberate wilful disobedience or disregard of an order previously made.
2. Contempt, even in a family law context, is a criminal or quasi criminal remedy. The evidence supporting it must therefore be clear and unequivocal. The Supreme Court has clarified the standard of proof “beyond a reasonable doubt” that must be applied, in such cases as R. v. Lifchus[^1] and R. v. Starr.[^2]
3. Particularly in a family law context, an order for contempt is a significant remedy and should be used sparingly, with particular concern for the best interests of the children.
4. While a finding of contempt is a significant remedy, with potentially significant consequences, it need not be necessarily a “last resort”. I agree with the comments of Quinn J. in Kassay v. Kassay in this regard.[^3]

[31] Mr. Cunningham has reduced his arrears of child support and has offered a reasonable explanation for his delay in retiring the arrears altogether. I find that Ms. Durkin has not met the high threshold required to establish that Mr. Cunningham is in contempt of the child support order.

[32] I turn to consider whether the court should refuse to consider Mr. Cunningham’s motion to vary access on the basis that he has not paid all the child support due under the existing orders. The arrears of child support amounted to $8,693 of the initial arrears of $10,000.

[33] The Family Law Rules provide, in part:

14. Motions for Temporary Orders

(23) FAILURE TO OBEY ORDER MADE ON MOTION - A party who does not obey an order that was made on motion is not entitled to any further order from the court unless the court orders that this sub-rule does not apply, and the court may, on motion, in addition to any other remedy allowed under these rules,

(a) Dismiss the party’s case or strike out the party’s answer or any other document filed by the party;

(b) Postpone the trial or any other step in the case;

(c) Make any other order that is appropriate, including an order for costs. (My emphasis)

[34] Pursuant to Rule 14(23), a breach of a child support order can result in the court refusing to hear a motion to vary access in some circumstances. In Diciaula v. Mastrogiacomo, Boswell J. considered two motions by a husband to vary the terms of a final order made by Wildman J. in 2004. The husband moved in 2007, to vary the access provisions of Wildman J.’s order and in 2008, to vary the support provisions of the order.[^4] The wife moved to strike, stay or dismiss the husband’s motions and Boswell J. made an order on June 3, 2008 staying the motions until the husband made a plan to repay the arrears of support and costs. Later, Boswell J. found that the husband had taken no steps to comply with his June 3rd order, and dismissed the husband’s motions pursuant to Rule 1(8) and 14(23). He stated:

Rule 1 (8) of the Family Law Rules provides that the Court may dismiss a party’s proceeding, or make such other order as the Court considers necessary for a just determination of the matter where a party has failed to obey an order in this or a related case.

Rule 14 (23) of the Family Law Rules provides that a litigant is not entitled to any further order from the Court where the litigant is in breach of an outstanding order made on motion. The application of the Rule is mandatory, unless the Court orders that it not apply.

The onus is on the Respondent to show that the Rule ought not to apply. It takes an extraordinary event to trigger the “unless” provisions of the Rule: see Gordon v. Starr 2007 35527 (ON SC), (2007) 42 R.F.L. (6th) 366 (S.C.J.)[^5] (Emphasis added)

[35] Boswell J. relied on Gordon v. Starr, although it was not a case concerning access. In Gordon v. Starr, J. W. Quinn J. stated:

Where a party has not complied with an order that was made on motion, relief under subrule 134 (23) is mandatory, “unless the court orders that this subrule does not apply.” Costs orders are captured by this subrule. The applicability of subrule 14 (23) to costs orders is consistent with the view of Justice Robert S. Montgomery in Canadian Express Ltd. v. Blair 1992 7535 (ON SC), (1992), 11 O.R. (3d) 221, 13 C.P.C. (3d) 375, [1992] O.JU. No. 2029, 1992 Carswell-Ont 379 (Ont. Gen. Div.), at page 377 [C.P.C.] (with which Justice Douglas J.A. Rutherford agreed in Piskor v. Piskor, 2003 53692 (ON SC), 2003 53692, 42 R.F.L. (5th) 100, [2003] O.J. No. 1464, 2003 CarswellOnt 1278 (Ont. Fam. Ct.) at paragraph [5], “that a cost order must be paid before [a] party can proceed further before the court.” (Emphasis mine)

[36] In Pepper v. Frankum, the Court of Appeal for Ontario allowed an appeal from a motion, judge’s refusal to grant a father leave to bring a motion for access, on the ground that the father had failed to pay a previous costs order. The Court did not hold that failure to pay costs should never bar a parent from seeking access to a child on the ground of unpaid costs, but, rather, held that it was an error to do so without considering certain relevant factors. The Court stated:

Moreover, in our view, it is an error in law to bar a parent from seeking access to a child on the sole ground of unpaid costs without considering the amount of costs, the reasons they were unpaid, and the parent’s ability to pay. The motion judge did not turn his mind to these considerations.[^6] [Emphasis added]

[37] In Bazinet v. Da Costa, Belch J. refused to stay a wife’s motion for custody and access notwithstanding her failure to pay costs of $ 7,547.78 imposed by a previous order. The wife had offered to pay $ 50 monthly until the order was satisfied, or an immediate lump sum of $ 1,000. She cited her financial circumstances as the reason she was not able to pay more. The Court put in place a payment schedule and ordered that, if the payment schedule was adhered to, the mother’s motions for custody and access could proceed. The reasoning in Bazinet v. DaCosta is consistent with the Court of Appeal’s decision in Pepper v. Frankum and turned on the justification for non-payment.

[38] In Lidder v. Lidder, the husband had failed to pay costs of $3,500 imposed by Daley J. in an order made a year earlier, which also required him to pay child support.[^7] Mr. Lidder did not offer any reason for not having paid the costs, other than arguing that a later agreement by the parties had vitiated the order, which I found it had not. There was no evidence that Mr. Lidder was unable to pay the costs ordered. I therefore dismissed his motion to vary access, without prejudice to his right to re-apply once he paid the costs ordered.

[39] Mr. Cunningham has satisfied the costs orders against him, has reduced his arrears of child support, and has offered an explanation for his failure to retire the full amount of his arrears. He relies on V. (S.) v. I. (T.), in which Reily J. held that the determination of custody and access issues should not depend on the payment of money.[^8] He further points out that the parties argued the issue of his arrears of child support before Hourigan J., as he then was, who directed that his motion should proceed.

[40] Ms. Durkin seeks to distinguish decisions that have permitted applications for custody and access to proceed in the face of arrears of support, on the basis that a child’s right to access supersedes a recipient spouse’s right to child support. She argues that a motion that seeks to vary a final order for access involves different considerations and requires a different approach. I disagree.

[41] In Gordon v. Goertz, the Supreme Court directed that when a party moved to change a final order as to custody and access, the court should undertake a two-stage inquiry. At the first stage, the Court determines whether there has been a material change of the child’s circumstances since the last custody order was made. If it finds that there has been such a change, it embarks on the second stage, involving a fresh inquiry as to what is in the best interests of the child.[^9]

[42] McLachlin J., speaking for the majority of the Court, summarized the relevant law on a custodial parent’s mobility. These principles have since been held to apply, in large part, to the court’s decisions as to whether to vary any existing order for custody or access:

1. If the threshold is met, the judge of the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.
2. The inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.
3. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.
4. Each case turns on its own unique circumstances. The only issue is the best interests of the child in the particular circumstances of the case,
5. The focus is on the best interests of the child, not the interests and rights of the parents.
6. More particularly, the judge should consider, among other factors: (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; (c) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; (f) disruption to the child of a change in custody; (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.[^10]

[43] In PCP v LCP, I reviewed the jurisprudence establishing that repeated breaches of a court order for access can amount to a material change in circumstances. It is not in the children’s best interests if the breaches of a court order for access that may amount to a material change in circumstances must invariably prevent the court from determining whether a change has occurred, much less what terms as to custody and access are now in the children’s best interests. The court is assisted in both these inquiries by having access to evidence from both parties.[^11] Similarly, a breach of a support order will not invariably preclude the hearing of a motion to vary an existing order, whether for access or support.

[44] In the present case, where Mr. Cunningham has paid the outstanding costs orders, has reduced his arrears of child support, and has offered a reasonable explanation for his delay in retiring the full amount of arrears, the remaining arrears should not preclude the court from hearing his motion to vary the access terms of the consent order that Ricchetti J. made more than three years ago.

b) Is Ms. Durkin in contempt of the Order of Ricchetti J. and, if so, what is the appropriate remedy?

[45] Ms. Durkin argues that if Mr. Cunningham is proceeding with his motion to have her found in contempt, she should be required to testify, as a finding of contempt should be based on oral testimony. An order for contempt ought only to be made on the clearest of evidence that meets the criminal standard of proof beyond a reasonable doubt. There is, however, no requirement, either in the Rules or the jurisprudence, for oral testimony.

[46] In Brar v. Dhinsa, Lemon J. stated:

Although motions for contempt ought normally to be dealt with by way of viva voce evidence, it seems to me that where the respondent has been given ample opportunity to respond to the motion or to purge the contempt and where the underlying facts for the basis of the contempt allegation can be resolved by me on the affidavit evidence is clear, I am entitled to proceed without viva voce evidence.[^12]

[47] The issues and evidence with regard to Ms. Durkin’s alleged contempt in failing to provide access are set out in Mr. Cunningham’s affidavit. Ms. Durkin does not deny that there were occasions when she refused Mr. Cunningham access, or made it impossible for him to exercise it. She gives justifications, and says that she offered to let Mr. Cunningham make up lost time with the children, but she does not deny that there were refusals.

[48] In her affidavit dated June 21, 2012, Ms. Durkin states that the parties got along reasonably well and access was going fine until early 2012. Her explanation for the deterioration that took place in their relations at that point is that the Family Responsibility Office contacted Mr. Cunningham, and his behavior and attitude changed.

[49] Another explanation for the deterioration in relations between Ms. Durkin and Mr. Cunningham is that Ms. Durkin served as liaison for Ryan’s hockey team and joined the team in their locker room with the result that Mr. Cunningham, whose terms of probation prohibited him from being in the same room as Ms. Durkin, was prevented from accompanying Ryan, like the other fathers, even if the practice or game fell on a night when he was to exercise access. Ms. Durkin’s lawyer minimizes the importance of this encroachment on Mr. Cunningham’s access, arguing that it interfered with his access for only a short time at the beginning of games, but I find that it would have been humiliating for Mr. Cunningham to be centred out in this manner in front of the parents of Ryan’s team-mates.

[50] It is not surprising, in these circumstances, that hockey assumed a greater importance to Ms. Durkin than it had for Mr. Cunningham. When there was a conflict between the boys’ hockey commitments, and especially those of Ryan, who served on a “Rep” hockey team in 2011 and 2012, Ms. Durkin expected Mr. Cunningham to accommodate Ryan’s hockey schedule, attending at the practices and games and departing from the boys when they joined their mother and their teammates in the locker room. Ms. Durkin explains that the rules of Ryan’s “Rep” team required him to attend every game and practice, or be “benched” if he missed one. If he missed a game, Ms. Durkin explains at para. 17 to 20 of her affidavit, he would not be allowed to play with his team the next season. Blake, who suffered a broken foot in 2012, played in a house league, whose rules were less demanding.

[51] Ms. Durkin states in her affidavit that she did not know whether Mr. Cunningham would take the boys to their hockey games or practices. Her preoccupation with ensuring that they attended, combined with her uncertainty as to whether Mr. Cunningham would take them, caused her to refuse access, or support the boys in their resistance to accompany him, so that she could assume responsibility for them herself at these times.

[52] Against this background, particular instances when access was refused stand out in Mr. Cunningham’s account.

1. Mr. Cunningham was scheduled to exercise access to the boys from Friday, January 20, 2012, at 6 p.m., to Sunday, January 22, 2012, at 6 p.m. He had told the boys that he had bought tickets for them to attend a Monster Truck event that weekend at the Rogers Centre in Toronto. It then developed that Blake’s team was scheduled to play in a series of games in a hockey tournament that weekend. According to Ms. Durkin, Mr. Cunningham told Blake that he would not allow him to attend his hockey tournament on Saturday evening, January 21st. This led to a discussion between Mr. Cunningham and Blake’s coach, who needed to know whether Blake would be playing in the tournament. The issue was resolved on the basis that Blake missed only one evening game, but Ms. Durkin maintains that the boys were reluctant to go with their father after that.
2. Mr. Cunningham tells the story somewhat differently. He says that Ms. Durkin assumed that he would not take Blake to his hockey tournament and withheld Mr. Cunningham’s access to the boys that weekend.
3. Mr. Cunningham’s next weekend access to the boys was from Friday, February 3 to Sunday, February 5, 2012. Ms. Durkin states that the boys initially refused to go with their father but, at her urging, they finally did go. According to her, Mr. Cunningham promised he would take them to their games but failed to do so. Instead, he told them that their mother had obtained a restraining order against him and had put him in jail. This was her interpretation of Mr. Cunningham’s effort to explain to the boys that he was unable to accompany them to their locker room without risking a breach of the terms of his probation order. Mr. Cunningham questions whether Ms. Durkin’s duties as a liaison person or manager, in fact, require her to be in the dressing room of a boys’ hockey team.
4. Mr. Cunningham’s next access weekend was the long weekend of Friday, February 17 to Monday, February 20, 2012, as Family Day was celebrated on February 20th. On February 17th, Ms. Durkin took the boys to the Apple Factory, where the exchange was to take place. According to Ms. Durkin, the boys had been adamant they did not want to go with their father since his refusal on February 4th to take them to their hockey game. They spoke to Mr. Cunningham’s parents and eventually, Ms. Durkin told the boys to say goodbye to the Cunninghams. Mr. Cunningham points out that the boys do not have hockey games scheduled on long weekends. Accordingly, the boys hockey commitments do not explain why Ms. Durkin refused Mr. Cunningham access that weekend.
5. Mr. Cunningham’s next scheduled access was from Friday, March 2 to Sunday, March 4, 2012. Again, according to Ms. Durkin, the boys said that they did not want to go with their father. Ms. Durkin went to the Apple Factory with a friend named Brent. She says that she did not want the boys to observe open conflict between her and Mr. Cunningham or his parents, who were present to pick the boys up. Ms. Durkin did not want to speak to the Cunninghams, so she had her friend Brent do so. Mr. Cunningham’s father, Al Cunningham, asked Blake to get into the car. Further discussion followed and the boys said that they didn’t like being in the position of decision makers. Finally, Brent suggested that they say good-bye to the Cunninghams and they left.
6. Father’s Day was celebrated on Sunday, June 17, 2012. Ms. Durkin acknowledges that she refused to permit Mr. Cunningham to exercise access to the children that weekend. She explains that her aunt died unexpectedly in Ottawa on June 15, 2012, and that she decided to take the children with her to Ottawa. She describes this as “a judgment call.”
7. Mr. Cunningham and Ms. Durkin give conflicting evidence as to whether Ms. Durkin made up the access time that Mr. Cunningham had missed by reason of Ms. Durkin’s refusals of access. Mr. Cunningham states that he was given one of two weeks access that he requested during the summer of 2012. Ms. Durkin states that she first learned of Mr. Cunningham’s request for summer access on July 25th, and by that time had she had made plans for the second of the weekends he requested. She says that she responded on July 30th offering a period of time in August saying he has choice but asks her which weekends are good. There was response by 30th , offering him access from August 3 to 12 but that he returned the children for reasons of his own on August 10th.
8. I find that in the communication between the parties, Ms. Durkin failed to acknowledge her responsibility for refusing Mr. Cunningham access on the weekends she did and was not explicit as to the access she was prepared to offer him to make up for lost time. While each of the parties performs their own calculations as to the net time Mr. Cunningham had with the children, I find that Ms. Durkin intentionally refused access when it seemed to her that her own interests or those of the boys required it, and failed to acknowledge having done so or take the necessary steps to make up the lost time and reassure Mr. Cunningham that his right to access, would be respected in the future. In the correspondence between them, Ms. Durkin did not, as Mr. Cunningham notes, assure him that if there were a future conflict between commitments to activities and scheduled access, access would prevail.

[53] I find that on at least some of the occasions which Mr. Cunningham cites, Ms. Durkin intentionally breached the order granting him access. Indeed, she acknowledges having done so. Mr. Cunningham is not asking the court to impose any punishment on Ms. Durkin for her contempt. He proposes, in the alternative, an admonishment, and a variation of the terms of his access. Ms. Durkin has agreed to some of the enlargements that Mr. Cunningham seeks. These concessions do not, from Mr. Cunningham’s point of view, give him sufficient assurance that his access will be respected in the future.

[54] It will reduce the conflict between the parties and is in the interests of the children to make the terms of Mr. Cunningham’s access more specific and provide for the consequences that should follow if they are not complied with.

c) Does Ms. Durkin’s non-compliance with Ricchetti J.’s Order amount to a Material Change in Circumstances?

[55] Ms. Durkin argues that if there is no finding of contempt, there has been no material change of circumstances that would justify varying the terms of Mr. Cunningham’s access. Mr. Cunningham relies on the same facts in support of his allegation that Mr. Durkin is in contempt as he does in support of his argument that there has been a material change in circumstances.

[56] I have found that Ms. Durkin has intentionally breached the terms of Ricchetti J.’s order. These breaches, together with other developments, affect the children’s interests. If these circumstances had existed at the time of the hearing before Ricchetti J., the hearing would likely have produced a different outcome. The following changes have occurred since April 11, 2011, when Ricchetti J. made his order, which affect the best interests of the children:

1. The children are 3 years older than on April 11, 2011.
2. Mr. Cunningham has left his employment with the landscaping business and is employed with his parents’ real estate practice in Brampton, which gives him and his parents more control over the hours he is available to exercise access.
3. Mr. Cunningham completed the period of probation for criminal harassment of Ms. Durkin.
4. Mr. Cunningham completed the PAR (Partner Assault Response) counselling ordered as a term of his probation.
5. Mr. Cunningham completed parenting counselling as recommended by the Office of the Children’s Lawyer.
6. Mr. Cunningham underwent drug testing which, while it disclosed marijuana use, showed no evidence that Mr. Cunningham used heavier drugs, such as cocaine.
7. Mr. Cunningham and the children completed the 18 months of transition access recommended by the Office of the Children’s Lawyer.
8. Mr. Cunningham and the children have had 3 years of access to each other.

[57] There have also been changes in circumstances that have materially affected Mr. Cunningham’s ability to pay child support. After injuring his back during his employment as a landscaper, Mr. Cunningham became employed by his parents in their real estate business. However, Mr. Cunningham has now had an opportunity to make the transition to his new career, and to develop new skills and visibility in his industry.

d) If there has been a Material Change of Circumstances, What Custody and Access Terms are in the Children’s Best Interests?

i. Custody

[58] Mr. Cunningham is not seeking a change in custody.

ii. Expanded Access by Mr. Cunningham

[59] In B.V. v. P.V., the Court of Appeal for Ontario allowed an appeal from a trial judge and expanded the father’s access to his two children to a 35% basis. The Court noted that the trial judge, despite finding that increased access would help to facilitate and build the father’s relationship with his children, which had been adversely affected by the mother’s conduct as aforesaid, and despite his belief that the father could play a significant role in helping his son with his studies and in addressing some of the academic challenges he was facing, granted what the Court of Appeal characterized as “minimal access”. This consisted of access to the children:

1. Every other weekend from Friday at 3:00 p.m. to Monday at 8:30 a.m., extended to Tuesday at 8:30 a.m. on long weekends;
2. Every Wednesday from 3:00 p.m. to Thursday at 8:30 a.m.;
3. Three weeks of summer holidays, only two of which were to be consecutive;
4. Every Father’s Day;
5. Shared time at holidays, including Easter, thanksgiving, Christmas and March Break.
6. Such further access as the parties agreed.

[60] The Court of Appeal agreed with the father’s submissions that the trial judge erred by awarding minimal access. The Court stated:

In our respectful view, the terms of access ordered by the trial judge fail to respect the “maximum contact principle” contained in s. 16(10) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), directing the court to give effect “to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child”. See also Gordon v. Goertz, 1996 191 (SCC), [1996] 2 SCR 27.

The trial judge did not identify any compelling reason for limiting [the father’s] access to the extent that he did. Indeed, the trial judge’s findings at para. 82, quoted above, support a more generous access order.[^13]

[61] The Court of Appeal rejected the husband’s argument that access on a 50% basis would be in the children’s interests, having regard to the trial judge’s findings that the father tended to be controlling, over-bearing, and disrespectful of the mother. In the present case, there are no compelling reasons for restricting Mr. Cunningham to minimal access. It will be in the children’s best interests to expand his access to the children to specified access to at least a 35% basis. Additionally, the circumstances no longer support a restraining order against Mr. Cunningham. The order made in May 2010 has impeded Mr. Cunningham’s exercise of his right to access to the children and has resulted in unnecessary conflict between the parties. It will therefore be rescinded.

iii. Specified Telephone Access

[62] Mr. Cunningham, who currently sees the children every Wednesday and on alternate weekends, seeks specific telephone access on Tuesdays and Thursdays for telephone access (he sees them every Wednesday and every other weekend).

iv. Travel Arrangements

[63] Mr. Cunningham submits that replacing the current location where the parties transfer the children to a location that is equidistant between the parties’ residences will, by sharing the travel more equitably between them, maximize the children’s contact with both parents. Ms. Durkin submits that Mr. Cunningham resides with his current partner in Burlington and that the current exchange location was chosen because it was near Mr. Cunningham’s workplace. The fact is, however, that Mr. Cunningham exercises much of his access at his parents’ home in Kleinberg. I find that changing the exchange location will facilitate the expanded access that is in the children’s best interests.

CONCLUSION AND ORDER

[64] Based on the foregoing, it is ordered that:

CUSTODY

1. Subject to the following specific provisions, Ms. Durkin shall continue to have custody of the Children of the Marriage, namely: a) Blake Cunningham born April 3, 2001 b) Ryan Cunningham born June 24, 2003 (“the children”).

REGULAR ACCESS

2. Mr. Cunningham shall have access to the children, and each of Ms. Durkin and Mr. Cunningham shall be responsible for day to day decisions and expenses arising at times when the children are residing with them.

3. Mr. Cunningham shall have access to the children on the following schedule: i) On alternate weekends beginning September 5, 2014, from pick-up on Friday at 3:30 p.m. to drop-off Sunday (or Monday, if a statutory holiday) at 6 p.m. ii) Every Wednesday from pick-up at 3:30 p.m. to drop-off at 8:00 p.m. iii) Telephone access, which he shall exercise by telephoning the children’s cell phone, every Tuesday and Thursday for at least 15 minutes with each child, between 8:00 p.m. and 9:00 p.m.

4. It shall be the responsibility of the parent who is about to assume care of the children to pick the children up at the designated location near to the other parent’s residence.

5. In the event that Ms. Durkin refuses access to Mr. Cunningham, except in the event of a documented medical emergency, Mr. Cunningham shall exercise access an additional weekend, of his choice, the following month.

SPECIAL ACCESS

6. The parties shall observe the following special access days, during which the regular access schedule set out elsewhere in this Order shall be temporarily suspended:

(a) Father’s Day - If the children are not otherwise with the father on this weekend, they shall reside with him on Father’s Day, from Sunday at 9:30 a.m. until their return to school on Monday.

(b) Mother’s Day - If the children are not otherwise with the mother on this weekend, they shall reside with her on Mother’s Day from 9:30 a.m. until their return to school on Monday.

(c) Valentine’s Day – the children shall spend Valentine’s Day with the parent with whom they normally spend that day of the week based on the terms of this order dealing with regular (non-vacation) access.

(d) March break – Beginning in 2015, and in odd-numbered years thereafter, from the close of school to the resumption of school, the children shall spend with the father. Beginning in 2016, and in even-numbered years thereafter, from the close of school to the resumption of school, the children shall spend with the mother.

(e) Easter – In odd-numbered years beginning in 2015, the children shall reside with the father from the Thursday prior to the Easter weekend at 6:30 p.m. to Saturday at 10:00 a.m. and with mother from Saturday at 10:00 a.m. to the resumption of school. In even-numbered years beginning in 2016, the children shall reside with the mother from the Thursday prior to the Easter weekend at 6:30 p.m. to Saturday at 10:00 a.m. and with the father from Saturday at 10:00 a.m. to the resumption of school.

(f) Summer Vacation – Each of the father and the mother shall have an uninterrupted vacation time of two week’s duration with the children in each of the months of July and August, during which the other parent’s mid-week access shall be suspended, resuming upon the end of the two week vacation period. The parent exercising vacation access shall ensure that the children attend for previously scheduled activities, unless the parent and the children are travelling outside Ontario, in which case the parent exercising such access is dispensed from this obligation for such period as he/she and the children are outside the province. The parent having first choice of the vacation period shall advise the other parent by May 15th of his/her chosen vacation weeks with the children. The other parent shall advise the first by May 31st of his/her chosen weeks. The father shall have first choice in odd-numbered years, beginning in 2015, and the mother shall have first choice in even-numbered years, beginning in 2016.

(g) Canada Day – The children shall spend Canada day with the parent with whom they normally spend that day of the week based on the above-mentioned provisions of this order, unless the day falls on the vacation access of a parent, in which case they shall spend Canada day with the parent with whom they are scheduled to spend vacation at that time based on the provisions of this order.

(h) Thanksgiving weekend – In even-numbered years, beginning in 2014, the children shall spend this holiday with the father and in odd-numbered years, beginning in 2015, they shall spend it with the mother.

(i) Christmas – Beginning in 2014, and in even-numbered years thereafter, the children shall reside with the mother from the beginning of the school holiday until December 25th at 12:00 noon and with the father from December 25th at 12:00 noon until the December 29th at noon and from the mother from December 29th at noon until the resumption of school. Beginning in 2015, and in odd-numbered years thereafter, the schedule shall be reversed, and the children shall reside with the father from the beginning of the school holiday until December 25th at 12:00 noon, etc.

(j) Parties’ birthdays – The children shall spend at least three hours with each parent on his parents’ respective birthdays. The scheduling of this birthday time will be left to the discretion and availability of the parties.

7. When the children are in the care of one of their parents, and that parent is unable to care for them directly, it shall be the responsibility of that parent to make arrangements for the children’s care. That parent may ask the other parent to assume care, but shall be under no obligation to do so before engaging other family members, unpaid volunteers, or commercial care-givers to care for the children.

8. Either parent shall be entitled to travel with the children outside of Canada during periods when they are in that parent’s care, provided that parent shall provide an itinerary, with flight numbers and the places of lodging and telephone numbers where he/she and the children may be contacted during any absence from Canada at least 30 days in advance. When one parent proposes to travel, the other shall provide the necessary travel consents to facilitate this.

9. The mother shall hold the children’s birth certificate, Social Insurance card, and travel documents but shall release them to the other parent when he/she requires them for travel in accordance with this Order. He/she shall also release these documents, upon the other parent’s request, for periods not to exceed 72 hours.

10. The children’s OHIP card shall travel with them when the children’s residence changes from the home of one parent to that of the other.

11. Each of the parties shall have the right to communicate with the children at any reasonable time by telephone and e-mail, and each parent shall keep the other informed of the children’s e-mail address and telephone number, as well as their residential address, whenever any one of these change.

12. Neither party shall arrange new extra-curricular activities for the children, or attendance at special events, such as the birthday party of a class-mate, at a time when the children are to be in the care of the other parent pursuant to this Order. Each party shall be responsible for transporting the children to and from activities that fall on days when the children are in that parent’s care. When special opportunities for the children arise, such as a school trip or athletic tournament scheduled by a third party service provider, or when unusual problems for the parties occur in relation to access, neither party will unreasonably insist on strict adherence to the foregoing arrangements. Instead, each party shall co-operate in making reasonable alternative arrangements so that the interests of the children prevail, and each party shall give his/her own needs and convenience only secondary importance.

13. Both the father and the mother shall have the right to information regarding the children’s school progress, as well as to the release of information pursuant to the Personal Health Information Protection Act, 2004 (“PHIPA”) regarding the children’s health and general well-being. Each of the parties may prepare a direction and a consent to Disclose Personal Health Information, pursuant to the PHIPA, authorizing him/herself to contact teachers, school officials, doctors and dentists and authorizing them to provide information directly to that party. The other party shall sign and return this authorization within ten days of receipt.

14. Each of the parents shall have the right to communicate with the children and the children shall have the right to communicate with either parent in private by e-mail or Skype at any reasonable time when they are residing with the other parent, and each parent shall equip the room which the children occupy when residing with them with a computer and internet access for this purpose. Each parent shall ensure that the other is kept informed of the children’s e-mail address and telephone number whenever they change.

15. This Order shall be enforced by the Peel Regional Police, Halton Regional, Ontario Provincial Police, and any other police service with jurisdiction in the area where the children are believed to be. This enforcement shall continue until the children’s respective 16th birthdays.

16. There shall be no change in the children’s school without the advance written consent of both parents or order of the court.

17. Each of the parents shall, within 10 days of the date of this Order, provide the other with a valid email address where the parent can receive communications and it shall be the responsibility of that parent to check his/her e-mail on a daily basis.

18. It shall be the responsibility of the parent who has care of the children on any given day to ascertain directly from the League the dates and times of all of Blake’s and Ryan’s hockey and soccer games and practices and ensure that the children attend such games and practices regularly and on time, unless there is a medical emergency, in which case he/she shall obtain the record of such emergency directly from the health care provider and deliver such record to the other parent when he/she next picks the children up from him/her. The mother shall promptly provide the phone number, email address and contact information of the relevant body to the father.

19. On the dates when Blake or Ryan has a hockey game or practice, Mr. Cunningham be entitled, at the discretion of the team’s coach, to accompany them into their locker room.

20. The parties shall confer with each other on all plans and arrangements relating to custody of and access to the children and, generally, on all important matters relating to the children’s health, residence, welfare, education, recreational activities, religious training and upbringing, including but not limited to the following non-emergency health care for the children and choice of the place of religious observance.

21. All ultimate decisions regarding the children’s extra-curricular activities shall be made by Ms. Durkin, subject to the fact that at least sixty days before registration in any advanced athletic or musical activity that involve any travel outside both cities or towns where the parents reside shall be subject to the conflict resolution process set out below.

22. Milestone changes in education, meaning a change of school, including transition from elementary to secondary school, and from secondary school to post-secondary studies, and the undertaking of a Special Education Program, and registration in advanced athletic or musical activity that involve travel out outside both cities or towns where the parents reside shall, at least sixty days before registration or enrollment, be mediated by a mediator selected by the parties or, if they are unable to agree, appointed by the court upon application by either party. The cost of mediation shall be deemed to be a special and extraordinary expense within the meaning of s.7 of the Guidelines, and shall be borne by the parties in the same proportion that each is contributing to other special and extraordinary expenses. Before proceeding to mediation, the parties shall exchange any relevant information about their proposals for schools or athletic or musical activity in writing for the other party to consider. The mediation shall be paid for in proportion to the parties Line 150 income from the Notice of Assessment last issued by the Canada Revenue Agency in relation to their income. If the mediation does not result in agreement, the mediator shall act as an arbitrator and release a written decision, which the parties may appeal to this Court, by motion on notice to the other party and supported by written material, which shall include the arbitrator’s decision.

23. Formal membership of the children or either of them in any religious institution shall be subject to the conflict resolution process described in paragraph 22.

24. Neither Ms. Durkin nor Mr. Cunningham shall purchase or rent a new residence for the children that is further than 5 kilometres from that parent’s current address without giving the other parent at least 60 days prior written notice of his/her intention to do so and details of the proposed move and address. He/she shall also provide the other parent with the new telephone number within 24 hours of the move. The above-noted restriction on moving the children’s permanent residence is not intended to limit the parents’ ability to take the children out of the jurisdiction for the purpose of travel for two weeks or less with the children. Any proposed change of residence shall be subject to the conflict resolution process set out in paragraph 22.

CHILD SUPPORT

25. There shall be no variation of child support at this time. In the event of a material change of circumstances, either party may apply for such variation.

26. Beginning in 2015, each of the parties shall produce to the other by June 1st a copy of his/her income tax return for the preceding year, including all schedules and attachments, and shall, in addition, produce to the other, forthwith upon receipt, a copy of his/her Notice of Assessment and Re-Assessment from the Canada Revenue Agency. Within 30 days of their receipt of their respective Notices of Assessment, the parties shall calculate the set off child support payable by one to the other, and their proportionate contribution to s. 7 expenses and exchange with each other their calculations by e-mail.

RESTRAINING ORDER

27. The restraining order made by Snowie J. on May 13, 2010, is hereby rescinded.

IMPLEMENTATION

28. If disputes arise in the implementation of this Order, either party may apply for directions, by motion on short notice, to be heard by teleconference or in person, between 9:00 am and 10:00 a.m. on a date when I am presiding, to be arranged with the Trial Office in Brampton, in consultation with my judicial secretary.

COSTS

29. If either of the parties asserts a claim for costs against the other, they shall confer and attempt to resolve the issue. If they are unable to agree, the parties may submit their arguments to me within 30 days, in three pages or less, with a costs outline.

Price J.

Released: August 11, 2014

Amended Released Date: October 29, 2014

COURT FILE NO.: 3291/08 002

DATE: 2014-08-11

AMENDED DATE: 2014-10-29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

KIM ANN DURKIN

Applicant

• and –

RICHARD ALLAN CUNNINGHAM

Respondent

AMENDED REASONS FOR ORDER

(See underlining on pages 7, 28, 29, 32 to 35)

Price J.

Released: August 11, 2014

Amended Release Date: October 29, 2014

[^1]: R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320 (S.C.C.) [^2]: R. v. Starr, [2000] 2 S.C.R. 306 (S.C.C.) [^3]: Kassay v. Kassay (2000), 2000 22444 (ON SC), 11 R.F.L. (5th) 308, [2000] O.J. No. 3373 (Ont. S.C.J.) [^4]: Diciaula v. Mastrogiacomo [2009] O.J. No. 1447 (Ont. Sup Ct) [^5]: Diciaula v. Mastrogiacomo, paras. 7 to 9 [^6]: Pepper v. Frankum 2007 ONCA 429, [2007] O.J. No. 2325; 225 O.A.C. 28; 38 R.F.L. (6th) 247 (Ont. C.A.), para. 4 [^7]: Lidder v. Lidder, 2009 35603 (ON SC) [^8]: V. (S.) v. I. (T.), 2009 9396 (ON SC), 2009 CarswellOnt 1023, [2009] W.D.F.L. 1720, [2009] W.D.F.L. 1919, 67 R.F.L. (6th) 150, per R.D. Reilly J. [^9]: Gordon v. Goertz, 1996 191 (SCC), 1996 191 (SCC), [1996] 2 S.C.R. 27 at para. 10. [^10]: Gordon v. Goertz, at para. 49 [^11]: PCP v LCP, 2013 ONSC 2564 [^12]: Brar v. Dhinsa, 2008 14535, 54 RFL (6th) 254 (ON SC) [^13]: B.V. v. P.V., 2012 ONCA 262