CITATION: Serafini v. Serafini, 2015 ONSC 3391

COURT FILE NO.: FS-12-37737-0001

DATE: 20150527

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Paul Serafini, Applicant

AND:

Julie Serafini, Respondent

BEFORE: Kiteley J.

COUNSEL: self-represented, Applicant

Charlotte Murray, for the Respondent

HEARD: April 28, 2015

ENDORSEMENT

[1] In September, 2014 the Applicant served a motion to change two final orders seeking the following relief:

(a) an order changing the residential schedule such that the father shall have access to Sebastiano every Friday, commencing at 5 pm and continuing through Saturday morning to coincide with the Leaside Minor Atom Hockey Schedule. The remaining Saturday access shall be shared between the mother and father in such a manner as to facilitate all Saturday programs for both Sebastiano and Angelica;

(b) an order changing the residential schedule such that the father shall have access to both Sebastiano and Angelica on alternating weekends commencing at 5 pm on Saturday until 4:30 pm on Sunday;

(c) an order for a variation in the access schedule in adding overnight access for each child, Fridays for Sebastian, and Sundays for Angelica, until such time that a long motion can be heard on the access issues;

(d) an order providing the father with access to both Sebastiano and Angelica for the Thanksgiving Holidays for one full day, starting with a morning pick-up, including an overnight, with a return the next day;

(e) an order providing the father with access to both Sebastiano and Angelica for the Christmas Holiday, commencing Saturday, December 20, 2014 at 9:00 am with a return on Thursday, December 25, 2014 at 3 pm.

(f) an order to provide access to the Applicant for the Easter Holidays, on Sunday, April 5, 2015 including an overnight, with a return the next day at 11 am;

(g) an order for the children to be enrolled in the TDSB and TCDSB and for the Respondent to produce the children for in-take assessments[1];

(h) an order for sale of the matrimonial home municipally known as. . . and the matrimonial home be listed for sale no later than February 2, 2015, pursuant to section 23(b) of the Family Law Act, R.S.O. 1990, c. F.3 as am., and section 3 of the Partition and Sale Act, R.S.O. 1990, Chapter P.4 and pursuant to paragraph 22a of the court order made on July 12, 2013 in respect of the Minutes of Settlement filed on consent on July 9, 2013 in respect of the various financial terms of agreement;

(i) an order for reductions to the support payment schedule summarized in paragraph 19 (a-c inclusive) pursuant to paragraph 22a of the court order made on July 12, 2013 in respect of the Minutes of Settlement filed on July 9, 2013 in respect of the various financial terms of agreement, based on updated income of the serving party (Paul Serafini) in the amount of $108,000 on an annualized basis;

(j) an order for divorce; and

(k) his costs of the motion on a substantial indemnity basis.

Background

[2] The parties were married on September 18, 2004 and, according to the Applicant, they separated on September 17, 2007. The Respondent takes the position that the parties reconciled while living under the same roof and that the final separation occurred on January 1, 2011. Accordingly, the Applicant asserts that the separation occurred within 3 years of the marriage while the Respondent asserts that it occurred approximately 7 years after marriage.

[3] The parties have two children: Sebastiano (aka Sebastian) born on June 18, 2005 and Angelica born April 28, 2008. On the position taken by the Applicant as to separation date, Sebastian was 27 months old and Angelica had not been born. On the position taken by the Respondent, Sebastian was 6.5 years old and Angelica was not quite 3 years old. I need not resolve the issue of separation date in this motion. The point is that these children have been the focus of parental conflict for virtually their entire lives.

[4] In 2007, Sebastian was diagnosed with an Autism Spectrum Disorder (ASD) and Attention Deficit Hyperactivity Disorder (ADHD) as well as having an Auditory Processing Disorder (APD). He has also been diagnosed as gifted.

[5] In 2011, Angelica was diagnosed with an ASD and as having ADHD features. There is a possibility that she too suffers from APD but she has not been tested.

[6] The parents agree that their children have special needs. What separates them is the extent of those needs and whether the Applicant father is capable of responding to their needs.

[7] The Applicant is 44 years old. He is an actuary. The Respondent is 43 years old. She has a PhD in social work, specializing in social gerontology.

[8] The volume of material filed on this motion to change is astonishing. The Applicant has filed many affidavits although the number increased because he has provided separate affidavits on topics as opposed to consolidating them. The Respondent has filed fewer affidavits. Each party has provided affidavits from third persons which are intended to support the position that each takes on various issues.

[9] The content and volume of the affidavits demonstrates a long standing conflict between them on financial and parenting issues. There are areas where the evidence is in conflict, such as the duration of the relationship; whether the Applicant has the ability to understand and respond to the needs of the children; whether the Respondent is acting in the best interests of the children in making decisions with respect to their parenting; and which parent is responsible for the persistent conflict.

[10] The Applicant did attend for questioning on April 1, 2015 on largely financial issues. Otherwise, the evidence contained in the affidavits has not been tested by cross-examination. In arriving at decisions on the motion to change, I will not make findings of credibility that are not essential to this motion to change and grounded in reliable evidence.

[11] Rule 2 (2) states that the primary objective of the Family Law Rules is to enable the court to deal with cases justly which includes ensuring that the procedure is fair to all parties; saving expense and time; dealing with the case in ways that are appropriate to its importance and complexity; and giving appropriate court resources to the case while taking account of the need to give resources to other cases. This motion to change was launched in September 2014 and has resulted in too many interlocutory steps before this long motion was heard on April 28, 2015. In view of the profound conflict between the parties and the best interests of the children, the motion must be decided on this record without the delay of a trial in which all of the credibility and reliability issues might (or might not) be resolved.

Final Order dated May 2, 2013 - Parenting Issues

[12] The relevant sections of the consent order are as follows:

A. DECISION MAKING

1. The Respondent shall have sole custody of the children. . . subject to the consultation process set out herein.

2. Major decisions regarding the children’s medical and dental care and treatment (e.g. surgery, long term medication, major diagnostics, counseling or therapy) shall be made in consultation with the children’s current physician(s), dentist(s), and other health-care providers. If the parties are unable to agree on major decisions relating to the children’s medical care and treatment, the mother shall have final decision-making authority on all medical issues.

3. Major decisions affecting the children’s educational programming (e.g. psycho-educational assessment or testing, school choice or tutors) shall be done by the parties in consultation with the medical and education professionals in the children’s lives. If the parties are unable to agree on major decisions relating to the children’s education, the mother shall have final decision-making authority on these matters.

4. Neither party shall interfere with the religious observance of the other or with that of the children . . .

5. The parties shall meet in early March each year to discuss what activities the children are to be involved in for the summer and upcoming school year, to determine the children’s daily routines and to discuss any other issues pertaining to the children. If they cannot agree on the selection of activities, the mother shall select them. Sebastian shall continue with his hockey. The children shall attend Bayview Glen summer camp, which requires registration in October, subject to paragraph 6 below, as it relates to this expense.

6. The children’s current budget for extracurricular activities (namely program which require registration) is $4000 per year, excluding summer camps. This budget may increase but may also decrease, having regard to the total section 7 expense budget and this allocation may need to be reviewed. Mother or applicant (“father”) shall be at liberty to pay for any extracurricular activities beyond the parties’ agreed budget. . . .

B. RESIDENTIAL SCHEDULE

9. The children shall reside primarily with their mother and have regular parenting time with father. The father’s parenting time shall be increased in accordance with the children’s special development needs and his demonstrated ability to meet those needs, which shall be demonstrated and measured pursuant to paragraphs 10-14 below. All scheduling shall be devised to place the special needs of the children, including their therapy and extracurricular events, as the primary consideration.

10. Commencing in May, 2013, the father’s parenting time shall be as follows:

a. The father shall have mid-week access to both children once per week from 4:30 p.m. to 6:30 p.m. to coincide with Sebastian’s soccer or other activity. If the day of the children’s activity changes, then father’s mid-week access shall change accordingly. If there are no midweek activities, the father shall select a mid week day and aim for consistency;

b. The father shall have shared access every Saturday with each parent to have one child in his or her care, to be coordinated around the children’s activities. During the summer months of July and August, this access shall be expanded such that the father has both children in his care on alternate Saturdays from 9:30 a.m. to 5:30 p.m. without mother present;

c. The father shall have access on alternating Sundays. In week two the father shall have access from 9:00 to 4:30 p.m. In week four the father shall have access from 11:30 a.m. to 6:00 p.m. and he shall be responsible for the children’s dinner; and

d. The father shall have additional parenting time in the summer in 2013 as agreed between the parties.

11. The access referred to in paragraph 10 is an expansion of the status quo. Accordingly, if this expanded access does not meet the best interest of the children, any concerns and corresponding adjustment shall be dealt with by Dr. Radovanovic, in consultation with Dr. Handley-Derry.

12. Overnight access shall be phased in, provided father satisfies the pre-conditions and provided the children are managing well, as determined by a professional, as follows:

a. Father shall have one overnight access on a Friday night, any day in July, 2013 and one overnight access on a Friday night, any day in August, 2013, with either or both children with a return time of 3:00 p.m. the following day;

b. It is anticipated that father shall have overnight access, initially with Sebastian and eventually with Angelica once per month on Friday in his home commencing September, 2013 either Labour Day weekend or toward the end of the month, on the following terms and conditions:

i. Father shall engage in regular informational and hands-on training with the children from now until September, 2013, which shall take place in his home and on an excursion;

ii. Dr. Handley-Derry shall determine the goals of the father’s training, assist the parties in selecting the trainer and shall determine whether the father has achieved these goals so the overnight can commence. If there is a dispute about the identity of the trainer, Dr. Handley-Derry shall decide that issue;

iii. Father shall follow the same meal and bedtime routines as in the mother’s home. Mother shall provide the father with a written explanation of those, including the children’s preferred foods;

iv. Father shall be present during the entire overnight;

v. Father shall child-proof his home and provide evidence to the mother that he has done so. This shall include:

Buy monitor, bedrails, night lights for both bedrooms, shelf for the children’s toys, sleep music machine, two pillows per child, bathmat for tub, bars on windows, removal of nails sticking out of walls, floor [sic: store?] all sharp/dangerous objects out of reach and in locked cabinet (e.g. medicine, cleaning supplies and alcohol); and

vi. The children shall have separate sleeping spaces in the home of their father.

13. Each of the parents shall research and propose the name of a mental health professional to assist in monitoring and implementing the overnight phase. This mental health professional shall have experience with the special needs, namely Autism Spectrum Disorder and ADHD. Neither party shall have direct contact with their proposed mental health professionals; rather their respective counsel shall make the necessary inquiries. If either party becomes self-represented, then any communication with a proposed mental health professional shall be made jointly, at the same time. The parties shall jointly retain Dr. Helen Radovanovic. The parties shall execute a mediation/arbitration agreement with Dr. Radovanovic within 30 days. If, for some reason, the parties do not retain Dr. Radovanovic, such a mediation/arbitration agreement shall be executed within 30 days of an alternate mental health professional being selected. If Dr. Radovanovic declines to accept the case, and if the parties cannot agree on the identity of this person, Czutrin J. shall decide based on curriculum vitae and submissions.

14. The role of this person is to monitor the overnight access phasing and determine whether it should continue at a rate of once per month or be decreased or increased based on the children’s best interests. The parties hereby delegate the decision making authority regarding the overnight and meaningful holiday access and amendments to the access schedule to provide the father with more time to a mental health professional rather than having the court decide. This person shall act as a mediator and arbitrator on issues relating to the access schedule, holiday schedule, and related parenting issues.

15. In determining whether the children’s best interests are met by the overnights and any other adjustments to the schedule, the mental health professional shall:

a. discuss the children’s adjustment with both parents;

b. consult with Dr. Handley-Derry;

c. consider the children’s views and preferences; and

d. consider the children’s need for gradual change, consistency, routine and structure.

16. The father shall have the children every Father’s Day and the mother shall have the children every Mother’s Day.

F. REVIEW

45. Either party shall be at liberty to trigger a review in two years, or when the mediation/arbitration contract expires, whichever is soon [sic: sooner?]. At that time the parties may either elect to enter into a further dispute resolution process with a mental health professional or access the court.

G. DISPUTE RESOLUTION

46. In accordance with the process described above, the parties shall jointly retain a mental health professional for a period to be determined by the mediator and arbitrator if necessary to resolve parenting disputes, particularly the residential schedule. . . .

Final Order dated July 12, 2013 – Financial Issues

[13] As a result of ongoing negotiations, the parties entered into another consent order, the relevant sections of which are as follows:

A. PROPERTY

Matrimonial Home

2. The parties jointly own the matrimonial home municipally known as . . . They have four debts secured against the home, namely:

a. a first mortgage with Royal Bank of Canada in the sum of $347,800.19;

b. a secured line of credit with Royal Bank of Canada in the sum of $12,143.00;

c. $60,000 owing by the husband to his parents; and

d. $60,000 which was owed by Julie to her mother, which has now been forgiven as against Julie only, since she is deceased.

3. In order to provide the children, who have special needs, with stability, and to maximize Julie’s ability to secure employment, having regard to her parenting responsibilities, Julie shall have continued exclusive possession of the matrimonial home until the summer of 2016, in accordance with the terms and conditions set out in paragraphs 4 to 10 below.

4. Based on the parties obtaining a new mortgage in the amount of $500,000, the mortgage proceeds shall be paid out as follows:

a. the RBC first mortgage in the sum of $347,800.19;

b. the RBC Homeline credit line in the sum of $12,143.00;

c. the personal line of credit in the sum of $14,961.81;

d. the remaining sum of approximately $119,095 shall be further distributed, with Paul to receive $19,095 and Julie to receive $100,000. Upon receipt of these amounts, Julie’s equalization payment [of $20,000] is satisfied and Paul’s outstanding retroactive actual support obligation to be paid when the house is transferred or sold is $9,547.50.

5. Subject to paragraph 8 below, Julie shall be solely responsible for the regular maintenance of the matrimonial home including the new mortgage payment, taxes and home insurance. If any of these payments are in arrears at the time of sale, they shall be deducted from the monies owing to her from the proceeds of sale. If Julie defaults on her obligation in this regard, she shall fully indemnify Paul and save him harmless for all amounts owing, including fees and penalties.

6. Julie shall also be responsible for paying all utilities.

7. The parties shall keep the line of credit (paid down upon refinancing of the matrimonial home) in place to cover necessary repairs. . .

8. If the total cost of the new mortgage, realty taxes and home insurance exceeds $2,750 per month, the excess shall be shared equally.

9. On or before February, 2016, the parties shall jointly retain a qualified certified appraiser to value the home and they shall be bound by his or her opinion. Julie shall have until May 1, 2016 to offer to purchase the home from Paul, in which case notional costs of disposition of 2.5% shall be deducted from the appraised value. Should Julie purchase Paul’s interest, she shall pay for the transfer.

10. If Julie does not purchase Paul’s interest in the home, it shall be listed for sale in the spring of 2016, with a closing date no sooner than mid-July, after the children have completed school and are away at camp, to give Julie time to pack and prepare the children for their relocation.

B. CHILD SUPPORT

Income Determination

12. For 2013, and pending the review to take place when the house is sold, Paul’s income shall be deemed to be $200,000 unless his total income as adjusted pursuant to the Guidelines is reduced by 20% or more. Julie’s income is deemed to be $40,000 per annum unless her income is reduced by 20% or more.

Prospective Table Support

13. Commencing July 1, 2013 and on the first day of every month thereafter, until the 2016 review is complete, Paul shall pay Julie table support for the two children . . in the sum of $2,582 per month.

Prospective Section 7 Expenses

14. The children have special needs and, accordingly, they have considerable section 7 expenses including, but not limited to:

a. special private school tuition for Sebastian, currently costing approximately $15,100 per year;

b. special private school tuition for Angelica, currently costing approximately $8,300 per year;

c. camp expenses for March Break and the summer, currently costing approximately $9,000 per year;

d. additional child care costs of approximately $1,200 per year;

e. speech therapy in the approximate amount of $6,500 per year;

f. occupational therapy in the approximate sum of $3,000 per year;

g. behavioural therapy in the approximate sum of $2,000 per year;

h. extra-curricular activities and sports in the approximate amount of $4,000 per year (with (a)-(g) above totaling $49,100 annually); and

i. medical and dental expenses not covered by a plan of insurance.

15. Rather than paying these expenses on a strict pro rata sharing, Paul and Julie shall meet their respective obligations pursuant to paragraph 18 [sic para 19?] below.

16. Commencing July 1, 2013, and until the 2016 review is complete, Paul shall pay Julie the sum of $2,500 per month . . .

Retroactive Table and Section 7 Expenses

17. Paul owes Julie retroactive Table and Section 7 expenses, in the sum of $70,000. Paul shall pay Julie the sum of $60,452.50 from his one-half share of the $119,095. . . and the sum of $9,547.50 which shall be paid without interest upon the transfer or sale of the home.

C. SPOUSAL SUPPORT

Prospective Support

18. Commencing July 1, 2013 and on the first of each and every month thereafter pending the completion of the 2016 review, Paul shall pay Julie spousal support in the sum of $2,750 per month. . . .

D. PAYMENT SCHEDULE AND ACCOUNTING

19. The monthly sums payable by Paul to Julie are:

a. Table child support of $2,582

b. Section 7 expenses of $2,500

c. Spousal support of $2,750

TOTAL $7,832

E. REVIEWS AND VARIATIONS

22. The child and spousal support payable by Paul to Julie herein, being $2,582 for Table support, $2,500 on account of Paul’s contribution to section 7 expenses and $2,750 in spousal support, for a total of $7,832 per month, is non-variable pending the review in 2016 unless:

a. Paul’s deemed income of $200,000 is reduced by 20% or more;

b. Julie’s deemed income of $40,000 is reduced by 20% or more;

c. Paul invokes his right to commence a Motion to Change prior to the review pursuant to paragraphs 21 and 40 [which are not applicable to this proceeding].

23. On or before May 1, 2016, the parties shall exchange Tax Returns and Notices of Assessment and other proof of all income for the years 2013, 2014 and 2015 including self-employed income.

24. Upon this exchange, the parties shall attempt to renegotiate their respective support obligations, either directly or through counsel or, if they agree, through mediation.

25. If they are unable to agree on a fresh amount to be paid . . . Motion to Change.

Parenting Issues in this motion to Change

A. Is there a material change in circumstances since the consent order dated May 2, 2013?

[14] The Respondent takes the position that the Applicant has not identified any material change in the condition, means, needs or other circumstances of the children to warrant a variation of the May 2, 2013 consent final order. I will deal with that issue first.

[15] As the consent order dated May 2, 2013 indicates, the clear expectations were that the Applicant would participate in training with both children in his home and on an excursion from that point until September 2013 when overnight access would take place; that neither Dr. Handley-Derry nor the Respondent would have control over the Applicant’s increased parenting time; that Dr. Radovanovic would mediate and then arbitrate; and that the parties would agree to additional parenting time in the summer of 2013 consistent with the recommendations made by Dr. Lieberman in the report dated January 2, 2012.

[16] The role of Dr. Radovanovic was as mediator/arbitrator in which she would monitor the overnight access phasing and determine whether it should continue at a rate of once per month or be decreased or increased; determine whether the children’s best interests are met by the overnights etc including by discussing the children’s adjustment with both parents and consulting with Dr. Handley-Derry.

[17] The role of Dr. Handley-Derry was to determine the goals of the father’s training, assist the parties in selecting the trainer and determine whether the father had achieved these goals so the overnight can commence; if there is a dispute about the identity of the trainer, he shall decide the issue; and he was to be consulted by Dr. Radovanovic.

[18] The training did not start until after September, 2013. The Applicant takes the position that Dr. Handley-Derry delayed in selecting a trainer; the Respondent takes the position that the Applicant was delayed in asking Dr. Handley-Derry to make the selection. For purposes of this motion, I need not resolve that issue. The trainer was engaged in November 2013. That trainer resigned in late January 2014. The Applicant takes some responsibility for her resignation. Dr. Handley-Derry did select a second trainer who was engaged in May, 2014. Between the trainer’s schedule and the availability of the children to be available for training, it did not get started until July 5, 2014. On August 1, 2014 Dr. Handley-Derry attended a training session with the trainer, the Applicant and the children and on August 29, 2014 he terminated the services of the trainer because he disagreed with her methods. In his subsequent communications with Dr. Handley-Derry the Applicant indicated a willingness to engage another trainer but insisted that the Respondent make the children available at times convenient to the trainer.

[19] Those clear expectations have not been met. First, as of May 2015, almost 2 years after the parenting consent order, the children have had few opportunities to enjoy overnight or increased day time with their father. As a result of the order I made dated September 30, 2014, the Applicant and the children had one overnight on Thanksgiving weekend. As a result of a consent order dated October 14, 2014 reached with the input of the DRO, the children attended the wedding of the Applicant’s brother on Saturday November 1 and a brunch on November 2 on the basis that the Respondent travelled with the Applicant and children by car to Hamilton and the children remained with her that night and then they returned to Toronto after the wedding brunch. And, as a result of the same consent order, Sebastian spent the night of December 19 with his father. That consent order also provided for additional time during the Christmas holiday which was December 24 from 9:00 until 4:30 and December 25 from 9:00 until 1:30. That consent order also provided that the children would attend the wedding of the Applicant’s sister in Hamilton on July 4, 2015 on the same terms and conditions as with respect to the Applicant’s brother’s wedding. The status quo established in May 2013 has not changed materially.

[20] Second, the mediator was to act as mediator and then arbitrator. In fact, she functioned only as mediator, not as an arbitrator. The mediator became ill and instead of suspending her services indefinitely, she resigned at the request of the Applicant. There is no mechanism for replacing the mediator. The med/arb protocol in the consent order has failed.

[21] The third failure to achieve expectations is related to the role of Dr. Handley-Derry. Dr. Handley-Derry’s role had been circumscribed by the consent order. Paragraph 12b(ii) of the May 2, 2013 consent order indicates that he was to set goals for the training, assist the parties in selecting the trainer and determine whether the father had achieved the goals of training so the overnights could commence. However, that was in the context of the role of Dr. Radovanovic: pursuant to paragraph 11 and 15, it was her role to decide whether overnights and additional parenting time would occur, in consultation with Dr. Handley-Derry.

[22] Dr. Handley-Derry did choose both trainers. He did set goals for the trainers. He did assess the progress of the second trainer and then he terminated the trainer’s services.

[23] However, his role as indicated by his affidavit sworn March 19, 2015 indicates that he remains a vital part of the position taken by the Applicant in this motion to change. For example, when the first trainer resigned, he asked for and obtained from her a 3 page letter explaining what had happened which was attached to his affidavit. Also, the letter dated July 2, 2014 from the Respondent to Dr. Handley-Derry (which was not copied to the Applicant) gives him background as to events that had occurred that illustrated her concerns about what she considers the Applicant’s inadequate parenting. As the email dated July 11, 2014 to the trainer illustrates, he acted as conduit between the Respondent and the trainer to bring home the Respondent’s concerns. In that same email, he relayed a message from the Respondent about timing of a visit.

[24] Dr. Handley-Derry is a well-known and highly regarded expert in children with ASD. He provided helpful background information such as Exhibit B (articles on sleep problems of children with ASD). However, based on the record before me, he is closely aligned with the Respondent and functions in the role of her advocate. That was not the expectation. The expectation of the May 2, 2013 consent order was that neither Dr. Handley-Derry nor the Respondent would have control over the increase in parenting time. That is not what has occurred.

[25] The Applicant has reported Dr. Handley-Derry to the College of Physicians and Surgeons and consequently it would not be reasonable to expect the Applicant and Dr. Handley-Derry to work collaboratively to carry out the original expectations of the consent order.

[26] The Applicant takes the position that his attempts to complete the training were routinely hindered and obstructed by the Respondent including by her not making the children available when the trainer was available and that she has made continuous attempts to limit his access. The Applicant asserts that the expectations in the consent order have not been met and indeed, that the agreement that was the basis of that order has failed to come to fruition. He has despaired that the protocol outlined in the consent order will ever lead to overnight access and asks this court to make an order for increased parenting time including overnight access in the best interests of the children.

[27] I agree with the Applicant that based on the failure of those clear expectations, there has been a material change in circumstances that justifies the intervention of the court in reviewing the parenting schedule.

[28] I note as well that in paragraph 14 of the May 2, 2013 order, the parties delegated the decision making authority regarding the overnight and meaningful holiday access and amendments to the access schedule to a mental health professional rather than having the court decide. I need not decide whether the court in its parens patriae role would be bound by such delegation because in this case, the delegation of decision making authority has failed.

[29] Finally, paragraph 45 of the consent order dated May 2, 2013 contemplated a review in two years and therefor the status quo created by the consent order would not last indefinitely. Although this motion to change started in September 2014, it has taken until now (or two years since the date that the order was made) to reach a disposition. Paragraph 45 does not require a material change in circumstances. It too is available for consideration in this motion to change.

[30] The only option is that the court exercise its authority to make decisions with respect to how the Applicant and the children can achieve a meaningful parenting schedule in their best interests.

B. Overnights and increased parenting time

[31] The Applicant takes the position that he has done everything he could possibly do to establish that overnight and increased access is in the best interests of the children and that the control which the Respondent exercises to prevent that means that the court must intervene.

[32] The Respondent takes the position that the Applicant’s capacity to act as a parent and to fulfill the particular needs of the children are the same limitations that she has raised over the last four years and include the following:

(a) he does not predictably exercise the access to which he is entitled under the existing order which results in inconsistency and unpredictability for the children;

(b) he does not closely supervise the children when they are with him to ensure their safety;

(c) he lacks an understanding of the children’s special needs and has not informed himself about the strategies currently being used to meet their needs and has refused to engage in training to enhance his ability to cope with the children and to meet their special needs;

(d) he is unable or unwilling to follow the children’s routines, i.e. maintain structure during play and activities, or be hands-on and engaged with the children;

(e) he has not created a suitable home environment for the children; and

(f) he places his needs before theirs.

[33] I will not review the significant volume of evidence on which each of the parties relies. Based on the evidence, I make the following observations:

(a) the thrust of the Applicant’s evidence is that he appreciates and is able to respond to the children’s special needs; that he has tried to comply with the training requirements but has been frustrated by the control exercised by the Respondent. He blames the Respondent for obstructing his parenting time and denying the children what they have asked for which is more time and overnights with their father;

(b) the thrust of the Respondent’s evidence is to identify the special needs of the children; point out how she believes the Applicant has failed to identify the special needs of the children and is incapable of understanding and responding to their special needs; and provide evidence from professionals involved with the children about how she has done just that;

(c) in support of their positions, the Applicant emphasizes the positive aspects of each child in an effort to demonstrate his knowledge and understanding of their needs and his ability to respond to their needs while the Respondent emphasizes the negative aspects of each child in an effort to demonstrate the Applicant’s lack of knowledge and understanding and his inability to respond to their special needs and her enhanced knowledge and understanding and her ability to respond to their needs;

(d) the Applicant made two attempts to participate in training. In his oral submissions he accepted responsibility for the withdrawal of the first trainer and conceded that his impatience with the process provoked him to react angrily. He willingly participated with the second trainer although he expressed frustration with what he perceived as the lack of co-operation by the Respondent to make the children available at times the trainer was available;

(e) The Applicant remains willing to secure a new trainer but not if the Respondent and Dr. Handley-Derry (directly and indirectly through the Respondent) control all aspects of the training including when the children will be available to participate.

[34] On the basis of the evidence and of those observations, I draw the following inferences and conclusions:

(a) The expectation of the parenting issues consent order was to create a structure that meant that the Respondent did not have control over when and how the Applicant expanded his parenting time including overnight access. That expectation has not been met. I agree that it has not been met because of the control exercised by the Respondent either directly or indirectly through Dr. Handley-Derry.

(b) The Applicant has not been as engaged with the many professionals as the Respondent. But he has informed himself as to the progress of the children. He does have an understanding of their unique needs. He is capable of responding to their needs;

(c) the Respondent has enabled overnights at summer camp yet she has resisted overnights with the Applicant. As indicated above, in order to enable the Applicant to take the children to a family wedding in November 2014 and in July, 2015, she insisted on conditions which included her presence in the hotel in the city where the wedding was held and return of the children to her care in the evening. She then criticized the Applicant for his care of the children while they were with him and used that to fuel her opposition to further events. She allowed an overnight visit with Sebastian on December 19 and 20 but not for Angelica and while she increased the parenting schedule on December 24 and 25 it was for day time only. In the consent order dated October 14, 2014, she carved out special time she would have with the children on her birthday but there is no provision for the Applicant’s birthday;

(d) I do not accept the evidence offered by the Respondent as to the alleged inadequacies of the Applicant’s parenting. In paragraph 31 above, I listed the summary of her concerns as to the Applicant’s parenting. Those concerns do not bear close scrutiny. Some are exaggerated, for example, paragraph 34(c) yet the evidence of the Applicant and to a certain extent Dr. Handley-Derry is that the Applicant has been and is willing to work with a trainer, just not on the Applicant’s terms. The evidence does not support her assertion that the Applicant “has consistently failed to acknowledge the diagnoses” of ASD. I accept the evidence of the Applicant (which is not denied) that the Respondent will occasionally extend visits when it suits her. And I find that the extensive evidence by and on behalf of the Applicant (including from teachers) makes it clear that he does have a comprehensive appreciation for the needs of the children.

(e) both children have many challenges. But both are high functioning.

(f) there has been virtually no increase in parenting time since May, 2013 when the consent order was made. I am not satisfied that the status quo is in the best interests of the children who are now almost 10 and 7. Indeed, in her response to motion to change, the Respondent espouses the need to regress to include supervised access when the Applicant has both children. She asks that the review contemplated for May 2015 be delayed having regard to the delay in completion of training and she suggests that the Applicant have the children on the second and fourth Sunday of every month (which ignores the months in which there are 5 Sundays) from 11:30 to 4:00. The position taken by the Respondent and the persistent conflict manifested in emails and the affidavits make it apparent that without a court order, it is very unlikely that the Applicant and the children will achieve a meaningful increase in the time they spend together. That is not in their best interests.

(g) the Applicant has been a constant presence in the lives of these children and has persisted in trying to expand his time with the children in the face of considerable resistance. He has put the children to bed in the home of the Respondent when she needed to be absent. I accept his evidence that he is familiar with the bedtime routine and can implement it. I accept his evidence that the bedroom he has for the children is not ready for them (as observed by Dr. Handley-Derry) because he intended, on advice from the first trainer, to involve the children in decorating and furnishing the bedroom as part of the overnight transition. I accept his evidence that he has all the safety mechanisms and other furnishings required by the May 2, 2013 court order but they are stored awaiting installation. I am satisfied that the Applicant will never achieve the quality of parenting that the Respondent believes is a pre-condition to the children seeing their father more often and for longer periods of time.

(h) I have reviewed the affidavit of Dr. Handley-Derry sworn March 19, 2015 and the affidavit of Dr. Wendy Roberts sworn April 14, 2015. Dr. Handley-Derry has been Sebastian’s Developmental Paediatrician since he provided a diagnosis of ASD in 2007. Dr. Wendy Roberts is a Developmental Paediatrician at the Hospital for Sick Children who has followed Angelica since 2010 when she diagnosed ASD. Both are well informed about children with autism and these children in particular. Dr. Handley-Derry has also been consulted as her Developmental Paediatrician. I am familiar with their long-standing involvement with children on the autism spectrum.[^2] They express opinions about the needs of the children which are entitled to respect, except to the extent that they rely on input from the Respondent, which is hearsay in this motion. As both observe, neither has had much involvement with the Applicant. Without determining how that has come about, and whether the Respondent has deliberately not included him in her communications with the professionals, the fact is that neither of them is in the position to provide the court with input as to the Applicant’s ability to care for and respond to the needs of the children on an ongoing basis, with the exception of Dr. Handley-Derry’s one hour observation visit on August 1, 2014. I do note that in his affidavit with respect to that visit on August 1, Dr. Handley-Derry observed that the children “have a nice rapport with their father”.

(i) Dr. Handley-Derry terminated the services of the trainer because he did not approve of her method of training. The communications between Dr. Handley-Derry and the Applicant indicate that the Applicant is willing to continue to explore training but not that there is a need for specific training to meet the goals outlined by Dr. Handley-Derry. I am not prepared to conclude that the Applicant needs additional training but he has expressed a willingness to do so, so long as the Respondent does not control it.

(j) I accept the evidence of the Applicant, which is not challenged, that the children want to spend more time with their father including overnights.

(k) As I wrote in my endorsement dated September 30, 2014, I am aware that these children need routine more than most and that a departure from routine has impacts more serious than for most children. Any changes must be introduced gradually and predictably.

[35] Based on those observations, inferences and conclusions, I find that, in the best interests of the children, I must make an order that recognizes the special needs of the children but changes the dysfunctional dynamic in which the Respondent has maintained control (whether directly or indirectly through Dr. Handley-Derry) in order to achieve the clear expectation of the consent order namely that the Applicant have increased parenting time including overnights. Consistent with the parties original expectation, that will begin with Sebastian.

[36] The Applicant has said that he will pursue training and in his emails to Dr. Handley-Derry he has indicated what he has done in that connection. I accept his evidence that he will do so but I am not imposing a term that requires further training or monitoring of the Applicant and the children because, based on the record, I am confident that if issues arise during the overnights with the children, that the Applicant will voluntarily reach out to the Respondent or others in an attempt to problem solve. However, the Applicant should be in control and the best interests of the children require that to occur so that the time the children are allowed to spend with their father is gradually increased.

[37] I turn to the other requests by the Applicant to increase the parenting schedule from the status quo which is set out in paragraph 9 of the consent order dated May 2, 2013.

[38] The Applicant asks for modest and gradual increases in time with the children. The Respondent is opposed and does not propose an alternative schedule. Indeed, as indicated above, in her response to motion to change, she proposes a regression to supervised access when the Applicant has both children with him.

[39] I am satisfied that modest and gradual increases in time are in the best interests of the children and, in the absence of an alternative proposal, I adopt the plan he suggests. As indicated below, I have integrated the additional day time with the overnight time. I am cognizant that the schedule established below does not take into consideration any plans that the Respondent might have and coincides with some long weekends. In the short term, that is unavoidable because if the Applicant must negotiate dates with the Respondent, increased parenting time will not happen. It may be that the parties agree to modify the schedule somewhat. However, unless the Applicant agrees in writing (including by email) with any changes proposed by the Respondent, the schedule shall be as set out below.

C. Enrolment in TDSB or TDCSB

[40] The Applicant takes the position that the educational special needs of the children could be met if the children were registered with the TDSB or the TCDSB. In his affidavit sworn April 10, 2015, the Applicant explains his understanding of the services that the public and Catholic school boards can and are required to provide to students. He has attached literature on the subject of the debate about whether private or public schools provide a better education, provided a copy of the over 200 page Special Education Plan for TDSB, provided a copy of an outline from the website of the Ministry of Education that describes the Individual Education Plan Process and other extensive material. Paragraphs 11–35 of that affidavit explain in considerable detail his understanding of resources available in the TDSB and the TCDSB. He asks only that this court order that the Respondent allow the children to be registered with either board in order that a psycho-educational assessment can be done and a determination can be made as to whether the children’s needs can be met in an educational institution other than a private school.

[41] The Respondent takes the position that the educational special needs of the children can only be met in a private school setting. She relies on the evidence of Dr. Handley-Derry and Dr. Roberts as well as affidavits from the principals of the schools the children attend. The Respondent asserts that the needs of the children are being met in their current schools. She will not agree to any educational testing or assessment at this time. She has provided an affidavit from an Elementary Itinerant Counselor employed with the TDSB which describes the process by which psycho-educational assessments are provided through the TDSB. That evidence addresses institutional steps taken when a child has an exceptionality.

[42] Pursuant to paragraph 3 of the consent order, the Applicant and Respondent are required to make major decisions affecting the children’s educational programming in consultation with medical and education professions in the children’s lives. That paragraph contemplates that they might agree. It is only if they are unable to agree that the Respondent has final decision making authority.

[43] Paragraph 45 of the May 2, 2013 consent order allows either parent to trigger a review at this time. In effect, the Applicant has done so. He does not ask that the children be removed from private schools. He takes the position that the children should be registered with the TDSB or the TCDSB so that investigations can be undertaken and a decision can be made as to whether the private schools are the only environment in which the children’s educational needs will be met. In other words, the Applicant does not ask that the court change the decision-making in paragraph 3 of the consent order dated May 2, 2013.

[44] Counsel for the Respondent takes the position that the Applicant must establish a material change in circumstances before the court could consider this request.

[45] If the Applicant was asking that paragraph 3 of the consent order be varied so as to remove the Respondent’s sole right to make educational decisions, then that would likely attract a standard of material change in circumstances. On the other hand, the review clause might be interpreted to allow such a challenge but without having to meet the standard of material change in circumstances.

[46] On the evidence of the Respondent, it appears that she has made no effort to collaborate with the Applicant in an effort to make such decisions. She has made her own investigations and inquiries and has made educational decisions about both children. This motion to change has demonstrated that the Respondent has not meaningfully consulted and collaborated with the Applicant on educational decisions but rather she has acted unilaterally.

[47] In the absence of evidence of meaningful collaboration with the Applicant, that decision making authority of the Respondent may be the subject of change in the future.

[48] Leaving the Respondent with the authority to make educational decisions does not end the discussion. As indicated below, the Applicant raises the question as to whether private school for the children is, for this family, a s.7 expense. Whether the Respondent continues to place the children in private schools may be impacted by whether she has the resources to do so.

Financial issues in this motion to change

A. Income of the Applicant

[49] Pursuant to paragraph 12 of the July 12, 2013 consent order, the Applicant was deemed to have income of $200,000 unless his total income as adjusted pursuant to the Guidelines is reduced by 20% or more.

[50] Paragraph 19 of the July 12, 2013 consent order contains a summary of the support which the Applicant agreed to pay in the amount of $7,832 namely:

(a) table child support in the amount of $2,582 per month;

(b) s. 7 expenses in the amount of $2,500 per month consisting of the items listed in paragraph 14 of the consent order dated July 12, 2013;

(c) spousal support in the amount of $2,750 per month.

[51] As indicated in paragraph 8 of the July 12, 2013 order, if the mortgage, realty taxes and home insurance exceeded $2,750, the excess would be shared equally. As a result of having to accept financing at a higher rate of interest, the monthly mortgage costs increased and the parties have been sharing the excess. The Respondent pays $259.41 as his 50% share. His payments per month total $8091.41.

[52] On December 4, 2013, the Applicant received notice of termination effective immediately. He received severance payments equivalent to 9 months and on September 11, 2014 he issued the Motion to Change.

[53] According to his evidence, the Applicant searched for full-time employment for months, prior to accepting his current position. The Applicant said that he took a significant pay cut because he prioritized a consistent level of income and financial stability rather than waiting for a high income earning position that might not happen. He also deposed that he has made efforts to expand his work by taking teaching assignments at two colleges and by part-time actuarial consulting work.

[54] As indicated in paragraph 1(i) above, the Applicant takes the position that his support obligations ought to be based on income of $108,000 on an annualized basis. The Applicant takes the position that his income has been reduced by 69% which justifies a review pursuant to paragraph 22 of the July 12, 2013 order.

[55] The Respondent takes the position that the Applicant ought not to have accepted his current position but he should have obtained employment in a corporation that would pay higher wages and benefits. She is opposed to any reduction in any of the Applicant’s support obligations.

[56] Furthermore, the Respondent takes the position that his Line 150 income for 2014 has not been reduced by 20%. She argues that if his income is composed of his total income for 2014 (which includes 9 months of severance payments) and other sources of income in 2014, that his deemed income is close enough to $200,000 that no review is warranted.

[57] The record on which the Applicant relies demonstrates the following: his persistent efforts during the period of severance payments to obtain full time employment as an actuary; his exploration of old and new opportunities; his choice to take the position with SEB as a basic income while exploring consulting positions and teaching positions in addition. I accept his evidence and I find that he did as much as any person could do to achieve a senior position at remuneration similar to that imputed to him at the time of the consent order in 2013, namely $200,000.

[58] I accept the evidence of the Applicant for these reasons. His voluminous evidence demonstrates attention to detail with corroboration by attaching documents such as banking records and invoices that are not and cannot be impeached; an inability to meet his obligations to pay support except by withdrawal of RRSP’s (with consequential tax consequences), using up all limited credit, borrowing from his parents, and being routinely 3 months late in paying his rent and thereby teetering on the edge of eviction proceedings. I agree that the current financial situation is unlikely to change significantly in the immediate future and that he has established that a reduction in all of his support obligations is justified. Given the dramatic reduction on his income, this is not a case where the strict application of line 150 of the Guidelines would be appropriate. Indeed, I infer from the consent order dated July 12, 2013 which imputed income to both parties, that they were not expecting a line 150 analysis to prevail.

[59] As indicated above, the Applicant asks that I find that his income is $108,000 on an annualized basis. It may be that by the end of 2015, his income is somewhat higher. However, I accept his evidence that $108,000 represents an amount that can reasonably be relied on.

[60] The Applicant has not provided a Divorcemate calculation and those on which the Respondent relies are not applicable. Attached is a Divorcemate calculation that excludes the s.7 expenses for reasons indicated below and that incorporates the Respondent’s position on separation date. Based on that calculation, the Applicant is required to pay support for two children in the amount of $1514 per month.

B. S. 7 expenses: private school tuition

[61] As indicated above, the Applicant takes the position that the s. 7 expense for private school is not sustainable. According to the Federal Child Support Guidelines, the court may provide for an amount to cover all or any portion of certain expenses, which expense may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation. This list includes child care, medical and dental and health-related expenses not covered by insurance, primary school that meet’s the child’s particular needs and extracurricular activities. According to s. 7(1.1) the definition of “extraordinary expense” includes the special needs and talents of the child, the overall cost of the programs and activities.

[62] For purposes of this analysis, I will accept that private school responds to the special needs of these children. Even accepting that it does respond to their needs, the expenditure fails to take into account the means of the spouses. At an annualized income of $108,000, I agree with the Applicant that private school is an unreasonable expense. The fact that the parties agreed in 2013 that private school was a s. 7 expense does not mean that it always will be a s. 7 expense.

[63] According to paragraph 22 of the consent order dated July 12, 2013, all of the Applicant’s support obligations are reviewable once the Applicant establishes a reduction by 20% or more. That applies to the table amount in paragraph 13 and the s. 7 expenses in paragraph 14. I am assuming that the tuition has been paid for the academic year ending June 2015. The reduction in s. 7 expenses by eliminating private school will take effect for the September 2015 academic year.

C. Section 7 expense: summer camp

[64] According to the consent order dated July 12, 2013, the parties agreed that camp expenses for March Break and the summer, then costing approximately $9000 per year, constituted s. 7 expenses. The Applicant challenges the continuation of that expenditure as unaffordable.

[65] As indicated in paragraph 14 of the July 12, 2013 consent order, the s.7 expenses were all totaled and then paid monthly. On that basis, at least half of the camp cost for the summer of 2015 has already been covered. The Respondent and the children would have made plans assuming that that would occur. On this record, I make no change in summer camp. It may be the subject of the review which will occur in 2016 pursuant to paragraph 12 and 16 of the July 12, 2013 consent order.

D. Allocation of s. 7 expenses

[66] According to paragraph 16 of the July 12, 2013 order, the Applicant was required to pay $2500 per month or annualized $30,000 out of a total of $49,100. That is roughly 60%. For purposes of this motion to change, the private school costs will be eliminated effective September 2015 but there will otherwise be no change in paragraph 14. The total of the remaining s. 7’s is $25,700. Since the parties did not allocate the s.7’s on the basis of actual or deemed income, I will continue with their approach. According, the Applicant shall pay 60% of $25,700 or $15,420 annualized. This reduction will take effect September 2015 to coincide with the deletion of private school tuition. The Applicant will make a calculation as to what he has paid and what he should pay and review it with Ms. Murray.

E. Spousal Support

[67] The Respondent held a post-doctoral Fellowship in Aging and Autism at McMaster University from 2011 to 2014. She says her contract (which paid $40,000 annualized) was terminated as a result of unavailability stemming from meeting the needs of the children and managing the recent litigation commenced by the Applicant. She deposed that she had been offered the opportunity to enter into a new contract with McMaster but that that would require her to be able to focus on her work in order to meet deadlines.

[68] According to the Applicant, the Respondent has secured employment at McMaster as of April 2015 earning a bi-weekly salary of $2,266.50 with 4% vacation pay. This income annualizes to approximately $61,300.

[69] During submissions, the Applicant asked that I terminate spousal support because that is a 50% increase to her income in July 2013. I indicated that on this motion I would not entertain the possibility of terminating spousal support since that was clearly to be an issue for the review in 2016. There will be no adjustment on account of her increase in income because paragraph 22 of the July 12, 2013 order contemplated a reduction but not an increase. The only adjustment to be made is that which will occur as a result of his reduction in income.

[70] According to the Divorcemate calculation attached, the range is $412 to $897 to $1,273. Often the mid-range is accepted. However, given that the change in the order as a result of his reduced income is significant, this is a case where the high end of the range is appropriate. Accordingly, the Applicant shall pay spousal support in the amount of $1,273 per month.

F. Timing of the implementation of the support reductions

[71] I accept the Applicant’s evidence that he has been trying for months to discuss their fragile financial situation and the Respondent rebuffed him. I accept the record of these proceedings that he started this motion to change as soon as his severance had elapsed, albeit on notice to her in advance. I accept his evidence that he has persisted in trying to have the issues heard and was unable to have his “day in court” until April 28, 2015 for reasons beyond his control but which included requests to adjourn by the Respondent. This outcome ought not to be a surprise to the Respondent. For that reason, the decreases in child support and spousal support will take effect July 1, 2015.

[72] The children will be in school approximately one more month following release of this endorsement. It would not be in their best interests to permit a reduction in private school fees for one month. The implementation date for the reduction in s. 7 expenses will be September 1, 2015.

[73] I appreciate that the Applicant is under considerable financial stress. But it would not be fair to the Respondent or in the best interests of the children to make an immediate reduction, let alone retroactively to the fall of 2014. In the next few weeks, the Applicant will have to manage his finances in order to comply with the order made July 12, 2013 even if that means liquidating capital, increasing his credit and being exposed to eviction. I expect him to remain current in his obligations for spousal and child support.

G. Sale of the matrimonial home

[74] As indicated in paragraph 1(h) above, the Applicant asks that the matrimonial home be listed for sale immediately on the basis that, on his reduced income, maintaining the home is not sustainable.

[75] The Respondent takes the position that paragraphs 9 and 10 of the July 12, 2013 consent order provides for the disposition of the matrimonial home in 2016 and that the court has no jurisdiction to vary that final order and order its disposition earlier than then.

[76] In a meticulously detailed consent order dated July 12, 2013, the parties agreed to an arrangement with respect to the matrimonial home and they did not provide for any change to it. Unlike in the paragraph 22 of the financial order and paragraph 45 in the parenting order, the consent order does not contain a material change clause or a review clause that applies to the matrimonial home. This court does not have jurisdiction to make an order for sale earlier than as indicated in the consent order and that aspect of the relief sought must be dismissed.

[77] However, as indicated below, I do accept the position of the Applicant that he has experienced a reduction of greater than 20% in his income and accordingly I will reduce his support obligations. While I have no jurisdiction to order sale at this time, the reality is that with reduced support, the Respondent may not have the ability to maintain the home and she may have to initiate steps to sell it earlier than 2016.

Sever divorce

[78] It appears that after the activity in 2013 in which the parties entered into two consent orders, that no further steps were taken in the proceeding. As indicated in paragraph 1(j), the Applicant is now asking for an order for divorce.

[79] The Respondent appears not to be opposed. Regardless which separation date is used, the parties have been separated more than 1 year and severance is appropriate.

Costs

[80] As indicated in paragraph 1(k), the Applicant asked for costs on a substantial indemnity basis. In her factum, the Respondent asked for her costs of opposing the motion also on a substantial indemnity basis.

[81] From the outset of this motion to change, the Applicant has been self-represented. The Respondent had counsel on January 21, 2015 at the case conference and Ms. Murray appeared as counsel for the Respondent on February 12, 2015 and on March 26, 2015. Costs of the case conference on January 21, 2015 and of the attendance before me on March 26, 2015 were reserved to the judge hearing the motion to change.

[82] There were two fundamental issues in this motion to change. On the first, namely increasing parenting time and moving to overnight visits, the Applicant has been more successful than the Respondent. On the issue of registering the children in TDSB or TCDSB, the Respondent was successful.

[83] On the second, namely financial issues, the Applicant was not successful on the motion to sell the matrimonial home. He was successful on variation of child and spousal support.

[84] Success was divided. If I permit written submissions as to costs, that will simply fuel the conflict. Neither can afford to pay costs to the other. In view of the reasons for this motion, neither should pay costs to the other.

Procedural issues

[85] As indicated below, I am ordering that neither party may bring motions before the inevitable review date in May 2016 without leave from me. As a result of this order, considerable changes will occur. In keeping with rule 2(2) the parents must make their best efforts to problem-solve without immediate recourse to the court.

ORDER TO GO AS FOLLOWS:

[86] Motion to vary the final order dated May 2, 2013 is allowed as follows:

(a) paragraphs 9 to 15 are deleted;

(b) The children shall reside primarily with their mother and have regular parenting time with father;

(c) The father shall have mid-week access to both children once per week from 4:30 to 6:30 p.m. to coincide with Sebastian’s soccer or other activity. If the day of the children’s activity changes, then father’s mid-week access shall change accordingly. if there are no midweek activities, the father shall select a mid week day and aim for consistency;

(d) On those weekends when the father does not have overnight with one or both children, the father shall have shared access on Saturday with each parent to have one child in his or her care, to be coordinated around the children’s activities;

(e) On Friday June 5, 2015 and on Friday June 19, 2015 the Applicant shall have overnight access with Sebastiano from 5:00 p.m. (pick up by his father at his mother’s residence) returning Saturday June 6, 2015 at 3:00 p.m.;

(f) On Friday July 10, 2015, and on Friday July 24, 2015 the Applicant shall have overnight access with Angelica from 5:00 p.m. (pick up by his father at his mother’s residence) returning Saturday July 4, 2015 at 3:00 p.m.;

(g) On July 4 and 5, 2015 in accordance with the endorsement dated October 14, 2015;

(h) On Friday July 31, 2015, August 14 and 28, 2015, the Applicant shall have overnight access with Sebastiano and Angelica from 5:00 p.m. (pick up by his father at his mother’s residence) returning the next day (Saturday) at 3:00 p.m.;

(i) Commencing on Friday September 11, 2015 and on alternating weekends thereafter, the Applicant shall have access with Sebastiano and Angelica from 5:00 p.m. on Saturday until 4:30 p.m. Sunday.

(j) Commencing the Friday night which is 8 days before hockey starts, and on every Friday night while hockey lasts, the Applicant shall have access with Sebastian from Friday at 5:00 p.m. (pick up by his father at his mother’s residence) to include taking Sebastiano to hockey. This Friday night is in addition to the overnights with both children. The remaining Saturday access shall be shared between the Applicant and the Respondent in such a manner as to facilitate all Saturday programs for both Sebastiano and Angelica.

(k) On Saturday October 11, 2015, the Applicant shall have overnight access with Sebastiano and Angelica from 3:00 p.m. returning Sunday October 12, 2015 at 4:30 p.m.

(l) Assuming school ends on Friday December 18, 2015, the Applicant shall have overnight access with Sebastiano and Angelica from Tuesday December 22, 2015 (pick up by the Applicant at the Respondent’s residence) until Friday December 25, 2015 at 3:00 p.m.

(m) The foregoing schedule is subject to change only if both parties agree in writing to such a change.

(n) On any of the times that the Applicant is with the children, he is at liberty to take them out of the Municipality of Metropolitan Toronto to a distance no greater than the distance between his home and the home of his parents in Hamilton.

[87] Motion to change final order dated July 12, 2013 is allowed as follows:

(a) paragraph 13 is amended as follows:

Commencing July 1, 2015 and on the first day of every month thereafter, until the 2016 review is complete, the Applicant shall pay to the Respondent table support for the two children in the sum of $1,514 per month;

(b) paragraph 14 is amended to delete (a) and (b), namely private school tuition for both children effective September 1 2015, leaving total s. 7 expenses effective that date in the amount of $25,700 of which the Applicant shall pay 60% or $15,470 annualized; Within 7 days of release of this endorsement, the Applicant shall provide to Ms. Murray his calculation of the amortized s. 7 expenses commencing September 1, 2015;

(c) paragraph 18 is amended as follows:

Commencing July 1, 2015 and on the first of each and every month thereafter pending the completion of the 2016 review, the Applicant shall pay to the Respondent spousal support in the amount of $1,273 per month.

[88] Pursuant to paragraph 8 of the July 12, 2013 order, the Applicant shall continue to pay $259.41 as his 50% share.

[89] The motion in paragraph 1(g) with respect to enrollment in TDSB or TCDSB is dismissed.

[90] The motion in paragraph 1(h) with respect to sale of the former matrimonial home is dismissed.

[91] The motion in paragraph 1(i) with respect to reductions to the support payments is granted as indicated above.

[92] The motion in paragraph 1(j) is granted. The divorce is severed from the corollary relief and the Applicant may bring a motion on notice to the Respondent for an uncontested divorce on the grounds of separation which motion will be brought to my attention.

[93] Neither party shall recover costs from the other for any steps in this motion to change from inception in September 2014 to the release of this endorsement.

[94] This endorsement constitutes an adjudication of all issues raised in the motion to change. All other issues raised in the motion to change or response to motion to change are dismissed.

[95] Neither party may bring any motion for any relief prior to May 1, 2016 except with leave from me.

[96] The Applicant shall forthwith prepare a draft order in accordance with paragraphs 86 to 95 and forward an approved draft to my attention before June 30, 2015.

Kiteley J.

Date: May 27, 2015

[^1]: The Respondent pointed out that this was not included in the Applicant’s motion to change but was added later in his notice of motion returnable April 28. As indicated below, I dismiss that aspect of the motion without addressing whether it was properly before me.

[^2]: Wynberg v. Ontario (2005) 252 D.L.R. (4th) 10, 2005 8749; overturned on some grounds in Wynberg v. Ontario (2006), 82 O.R. (3d) 561, 2006 22919