INTRODUCTION

[1] The parties were married on October 6, 2003. Their first son, Nikolas Blase, was born November 14, 2003. The respondent (“father”) moved out of the family home at the end of December, 2008 and the couple officially separated on May 15, 2009. Their second son, Julian Blase-Easson, was born on July 20, 2009.

[2] This couple dislike each other so much that they are usually unable to communicate or come to decisions related to their sons without difficulty and sometimes without the assistance of a third party.

[3] On May 14, 2012, the applicant (“mother”) and the respondent did agree on the Final Order of Justice Klowak on the eve of a trial. The order provides a regime for making and communicating both important decisions and daily decisions that concern the children’s welfare. In the order, the parents agree to consult and confer, via email, and to mediate with Dr. Irwin S. Butkowsky to try and reach a consensus. If they cannot agree, the mother shall have the final decision making authority.

[4] On May 2, 2014, the father commenced this motion to change the Final Order. He seeks the following:

(a) Increased time sharing regarding the two children of the marriage, such that the children reside with each parent on an alternate week basis with exchanges to take place on Monday morning at school;

(b) The parent residing with the children at the relevant time to make daily decisions affecting their welfare;

(c) Summer vacations to be divided equally with the father to have the first half and the mother the 2nd half or, alternatively, for the summer to be divided into quarters with one parent to have the 1st and 3rd quarter and the other the 2nd and 4th quarter;

(d) The residential and vacation schedule to take precedence over any civic and/or statutory holidays;

(e) Parallel parenting such that the order provide the parties have joint custody with decision making to be divided between them with one parent to have final decision making regarding nanny/child care, extra-curricular activities and religion; and, the other to have final decision making regarding education and health; or, in the further alternative, that neither parent to have final decision making regarding the children’s schooling and the issue of schools to be determined by agreement of the parties or by the Court, or, if the parties agree, by Dr. Butkowsky;

(f) It is also possible that decision making could be divided in some other manner - what is important is that neither party have absolute control;

(g) An order that Julian, who is to enter grade 1 in September, 2015, change schools from École Charles Sauriol to École Pierre Elliot Trudeau; and

(h) Costs, including costs of expediting transcripts.

[5] The father did not argue paragraph (f) or offer examples of how what he asked for in it could be achieved. He did particularize paragraph (e) at the trial, asking specifically to be the decision maker regarding education and health for the two children.

[6] Mr. Blase alleges that Ms. Easson has been intransigent regarding extra time for him with the children – over and above that agreed upon in the Klowak Order. He alleges that the applicant has also failed to consult and confer with him and mediate through Dr. Butkowsky to reach consensus on major decisions regarding the children.

[7] The father’s position is that equal time sharing and parallel parenting regarding decision making would reduce opportunities for conflict to arise between the parties.

[8] Ms. Easson asked for a dismissal of the motion until I inquired, partly into the evidence of the father, whether there was any way the parties might agree on a variation of the Order. She changed her position to give the father more time than the present Thursday after school to Sundays at 6:00 p.m. every other weekend. She proposed:

An Order that the children’s residential arrangements shall be altered such that their alternating week access with father commences Wednesday a.m. and ends on Monday a.m. when Friedrich shall take the children to school. If the Monday is a holiday, it shall be extended to Tuesday, subject to the Order concerning the summer schedule and the holiday schedule which is otherwise in practice between the parties.

The Issues

[9] The summer schedule is not an issue in this trial as the parties have managed to agree on the children’s time with each parent for that period and appear to be able to do so in the future.

[10] Ms. Easson still asks that the father’s motion regarding split decision-making be dismissed.

[11] I am left to decide the issue of joint custody, whether there should be the week on, week off time sharing, whether there should be a division of decision making proposed by the father and whether Julian should change schools.

The Facts

[12] The mother was born in Toronto, the father in Germany. The couple, both lawyers, met in Europe while Ms. Easson was working in London. Ms. Easson got pregnant in 2003 and she moved to Frankfurt with Mr. Blase. She stayed home with Nikolas while the respondent worked to establish a business.

[13] Nikolas was born with Congenital Adrenal Hyperplasia (CAH), a condition requiring regular monitoring by the parents and physicians. Ms. Easson took care of the day to day needs of the child – at times with her mother’s help. Nikolas required medication and the intervention of medical specialists.

[14] The parties moved to Toronto in July, 2005 to the matrimonial home where the mother and the two boys still reside. Ms. Easson took a job with the Ministry of the Attorney General. She remained the primary caregiver. Mr. Blase travelled extensively between New York and Germany as part of his employment.

[15] The parties separated in December, 2008, five months before their second son, Julian, was born. The father lived in the U.S. during this time. Ms. Easson began this litigation on June 28, 2010 to secure child support and resolve the parenting issues. The parties entered into acrimonious litigation before the trial in May 2012 was avoided through a Consent Order. The Klowak Order dealt with all issues between the couple and set out a comprehensive apparatus for varying the order as the children grew and circumstances changed.

[16] As during the marriage, Ms. Easson continued to be the primary caregiver for the boys after the couple separated. The father maintained his residence in New York City and resided there in 2009 to be available to work. By January 3, 2011, still employed by a U.S. law firm, Holland and Knight LLP, as Director of Strategic Initiatives, the father made Toronto his base in order to be available for the children. He eventually gave up his U.S. residence. He continued to travel for business during weeks he did not have care of his sons.

[17] In September 2011, Mr. Blase purchased a home in Toronto and began living there with Ms. Rhonda Watson, who he had met in the U.S. and who has subsequently become his wife.

[18] This situation was in place at the time of the Consent Order in which the father agreed to primary residence of the children with the mother and secondary residence with him. He agreed to have Nikolas on alternate weekends commencing after school on Thursdays, returning him to the mother at 6:00 p.m. on Sunday.

[19] Julian was just under three years old at the time of the Klowak Order. The father agreed to have him in his care from Friday mornings at 9:00 a.m. and return him to the mother at 6:00 p.m. on Sunday.

[20] The agreement also set out an equal sharing of holiday time with the parents and a scheme of open mediation with Dr. Butkowsky. Communication with the children while in the other parent’s care, parental conduct, the transfer of the children between parents, travel arrangements and passports, the children’s names, their activities, table child support, section 7 expenses, life insurance for the children and a proposed child support review in July, 2016 were dealt with in this very comprehensive order.

[21] Amongst other things, Dr. Butkowsky was given the mandate to extend the time Julian would spend with his father after the Final Order was made. He testified at this trial to assist the court regarding what took place at the counselling sessions. In November, 2012, the issue of Julian joining his brother Nikolas’ schedule with the father was agreed to by the parties. In January 2013, both boys began to follow the same residential schedule, which continues to this day.

[22] In 2012, Dr. Butkowsky met with the parties twelve times jointly and one time, each, individually. He assisted the couple to agree on the Christmas 2012 holiday schedule. They discussed the couple’s communication issues, the weekly residential schedule of the children, Skype calls between the children and their parents when in the care of the other parent, the children’s exposure to their German roots, passports, travel consents, pick up and drop off routines.

[23] In 2013, the couple saw Dr. Butkowsky thirteen times and agreed that Julian would be enrolled in the French Language Public school system. They set the summer holiday schedule, discussed the children’s use of technology, the father’s conduct towards the mother and Nikolas’ sleep issues. They mediated the father’s obligation to pay section 7 expenses and the mother’s need for a nanny, which the couple disagreed on. They agreed on a trip the father eventually took with Nikolas to Brazil to watch World Cup soccer.

[24] In 2014, the couple attended one mediation session with Dr. Butkowsky where they tried to deal with the father’s concerns about Ms. Easson’s commitment to the process, the boys’ power soccer activity, the use of a nanny, the possibility of German school and the mother’s conduct.

[25] In 2015, there was again only one session with Dr. Butkowsky, which covered the continuing issue of the boys’ attendance at french public school and the highly specialized and costly power soccer league.

[26] The father testified that what transpired in the sessions prove the intransigent position taken by the mother. Dr. Butkowsky’s evidence did not support his position.

[27] Dr. Butkowsky agreed with suggestions by the mother, in cross-examination, that the father showed hostile, but also, at times, cordial behavior. He confirmed that the father was also critical of the mother during some meetings and had to be told, when meeting privately with the mediator, that his behaviour did not assist the process. It became clear to me during the trial that Mr. Blase still holds unbridled hostility towards Ms. Easson. Throughout, he glared at her whenever she spoke in a way that communicated his utter disrespect and loathing for her until she asked me to intervene while she was on the witness stand. That is when she was able to see his expressions. I had seen them throughout the motion when the mother addressed the court. It was only after I did intervene that he held his feelings for her in check.

[28] Ms. Easson had previously brought a motion for a “Conduct Order” to curtail the father’s hostile behaviour towards her.

[29] The Final Order incorporated the issue of parental conduct in fifteen paragraphs (24-38) – a reflection of how this couple can only seem to create toxic communication unless firmly regulated.

[30] The father tried to renegotiate the use of the nanny, believing one was not necessary once the boys were in school.

[31] He made an offer to the applicant to vary the section 7 expense concerning the nanny going forward, even though he was aware that the Klowak Order had made the expense fixed until a review in July, 2016.

[32] The father did not agree with his younger son attending power soccer as well. The mother did not agree to the changes the father wanted. Because she was given the final say, the boys continued in their schools, they continued in the elite soccer league and the mother continued to employ a nanny. It appears that although Mr. Blase agreed to these arrangements, he was resistant to being strictly confined to the parameters of the Klowak Order and the final say it gave to the mother.

[33] He gave evidence that the nature of the parties’ relationship did not allow him to parent and that is why he now wants to split the children’s time equally between himself and the applicant plus take over decision making for the boys’ education and health needs.

[34] The father characterized the mother as “passive aggressive” towards him, with selective responsiveness and an unwillingness to discuss issues. He testified: “She will only respond if she feels I have properly raised the issue with her. She likes to think I am only a parent at her will”.

[35] The parties have communicated by email since the Final Order. Ms. Easson filed them as exhibits in the trial over the objection of counsel for the husband. The voluminous bundle of email shows that the parties communicated about all the issues around the children. Things like potty training, a child’s nose bleed, a small bacon fat burn, sleeplessness, a child’s agility at power soccer, missed medical appointments, the use of a naturopath and internet use by the children were addressed. Some of the issues might be characterized a peciune. Nonetheless, they were discussed by the parties.

[36] Other major issues were also addressed. For instance, both parties have travelled fairly extensively with the children in spite of conflicts over the timing of the provision of travel consents. They managed this mostly through email communications.

[37] In 2014, the mother prevented a second trip to Brazil for Nikolas and the father to see World Cup Soccer because she felt it would not be safe. Unfortunately, Mr. Blase blamed the failed trip on Ms. Easson and communicated it to Nicholas because of his frustration about the situation.

[38] Both children attend the mother’s in-district school, École Charles Sauriol. Nikolas is starting grade 7 at École Secondiare Toronto Ouest in September, 2015. Julian began attending École Charles Sauriol in September, 2013 and will start grade 1 there in September 2015. Both children are doing well in school and socially.

[39] The mother has a new partner, with whom the children have formed an attachment. The father’s wife, Rhonda, has established a good relationship with the children.

[40] Both parents work full time – Ms. Easson for the provincial government and Mr. Blase for Pangera3, a legal services outsourcing business. He is their Global Director. His job requires international travel.

THE LAW

Material change

[41] Section 17(1) (b) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), provides:

A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

[42] Pursuant to section 17(5), no such variation can be made in the absence of a material change in circumstances since the making of the Order. It sets out that

Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

[43] Absent a finding that there has been a material change in circumstances, this Court is without jurisdiction to vary any terms of the order. My jurisdiction to vary a custody and access order is dependent on my finding of a material change in circumstances since the previous order was made. If the father fails to meet this threshold requirement, the inquiry can go no further [Persaud v Garcia-Persaud, 2009 ONCA 782, at para 3].

[44] A material change in circumstances is one which: (1) amounts to a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) materially affects the child; and, (3) was either not foreseen or could not have been reasonably contemplated by the judge making the original order. [Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, para 3; Persaud v. Garcia-Persaud, supra, para 3].

[45] Change is not enough. The change must have altered the child’s needs or ability of the parents to meet the child’s needs in a fundamental way [Gordon v. Goertz, supra, para 12].

[46] Further, the change should represent a distinct departure from what the courts could have reasonably anticipated in making the previous order [Gordon v. Goertz, supra, para 12].

[47] The Supreme Court in Gordon v. Goertz set out that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. This court must assume the correctness of Justice Klowak’s order and consider only the change in circumstances since the order was issued. In order to examine whether there has been a material change, the court must look at the circumstances which prevailed at the time of the original order, namely the circumstances meaningfully proximate to, and prior to, the date of the order. “The question is whether the previous order might have been different had the circumstances now existing have prevailed earlier” [Gordon v. Goertz, supra, para 12].

[48] In Mudry v. Danish [Mudry v. Danish, [2014] O.J. No. 3419], the applicant mother obtained a variation of a residential order on a motion based on an alleged change in father’s behaviour since the order was made that put the children at risk. The Divisional Court overturned the motion judge’s order which effectively varied the previous order because it contained no express finding of a material change. Having failed to find material change, the motion judge had no jurisdiction to vary the previous order. The Divisional Court also found that they were unable to review relevant evidence that the motions judge should have considered but did not, including details of the history of the litigation and negotiations between the mother and the father that resulted in the parenting regime; prior incidents where the mother had called the police but the police had not pursued her allegations; and detailed accounts of parenting roles since the children were born.

[49] There is no blanket rule precluding the consideration of relevant evidence that pre-dates the order as suggested by the father’s counsel in this case. In fact, the test in Gordon v Goertz requires such consideration.

The “Best Interests of the Children” in Variation of Custody

[50] The Court of Appeal has recognized that good communication between parents is essential to the appropriateness of a joint custody order:

…[H]oping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another…When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important [Kaplanis v. Kaplanis, 2005 CanLII 1625, para 11; B.V. v. P.V., 2012 ONCA 262, para 9].

[51] Where the evidence regarding communication is to the contrary of effective communication, a joint custody order is not a viable option. An order for joint custody would not be in the children’s best interests and would only lead to further conflict between the parents [Kaplanis, supra, para 11; B.V. v. P.V., supra, paras 9-10].

[52] Evidence that a parent is controlling, overbearing, and disrespectful of the other can also mean that 50% access by that parent is not in the best interests of the children [B.V. v. P.V., supra, para 17].

[53] In V.K. v. T.S., 2011 ONSC at pp 24 and 25, Chappel, J’s review of the case law suggested the following factors as particularly relevant in determining whether a parallel parenting regime, rather than sole custody is appropriate:

(a) The strength of the parties’ ties to the child, and the general level of involvement of each parent in the child’s parenting and life. In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child’s life on all levels.

(b) The relative parenting abilities of each parent, and their capacity to make decisions that are in the child’s best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered.

(c) Evidence of alienation by one parent. If the alienating parent is otherwise loving, attentive, involved, competent and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party’s role in the child’s life. On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child’s best interests, a sole custody order may be more appropriate.

(d) Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order.

(e) The extent to which each parent is able to place the needs of the child above their own needs and interests. If one of the parties is unable to focus on the child’s needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child’s day to day needs.

(f) The existence of any form of abuse, including emotional abuse or undermining behavior, which could impede the objective of achieving a balance of roles and influence through parallel parenting.

ANALYSIS

[54] The father brought this motion to change the Final Order less than two years after he consented to its making. He is not satisfied with the pace at which the mother has moved to expand his time with the children and he maintains that she has undermined the order by failing to meaningfully consult, confer and mediate the issues with him.

The Order

[55] The Order speaks for itself. Nowhere in it does it specify that the parties were expected to move to an equal sharing of the children’s time except for the summers, which the parties have done.

[56] Paragraph 21 speaks to an extension of Julian’s time with the father, which has taken place. The father complained that it did not happen quickly enough, but having regard to Julian’s age at the time, I find that the six to seven months it took after the order was made was not an overly extended period to have this change put in place. The fact that it appeared to the father to be a tortuous exercise is a product of his and the mother’s relationship, for which he admits he shares the blame. That may never change.

[57] Paragraph 21 also sets out that, although he was used to help the couple consider an extension of the children’s time with the father, “Dr. Butkowsky is not mandated to mediate or consider a new parenting regime, which can only be determined in the event of a material change in circumstances, by a court of competent jurisdiction”. There was no issue before this court proceeding about a specific extension of the children’s time with the father, set out in the Klowak Order, with which the mother refused to agree. The order did not mandate it.

[58] I find that the mother’s so-called intransigence is, in fact, her correctly interpreting the intent of the Order whereas, the father’s belief that the mother is non-compliant with the Order is either a misinterpretation of its content or an attempt to appeal the Order because he is not satisfied with the concessions he mde in May of 2012.

Material change

[59] There is no material change of circumstances in this case. I agree with the mother’s submissions which I adopt and summarize as follows:

(1) Father’s availability

The father maintains that since the Klowak Order was made, he was working for a U.S. based firm and his work was divided between New York and Toronto. Since that time, he has obtained new employment. His travel requirements with the new employer are significantly less than with the previous employer. Also, his wife and he have moved to Toronto and made Toronto their home.

[60] There is no evidence that the father’s availability to meet the needs of the children has materially changed since the date of the Final Order as a result of his changing his employment.

[61] First, the Final Order was reached based on the fact that the father was resident in Toronto as of 2011 and living with Rhonda Watson. The father’s evidence at the 2012 trial consisted of a February 1, 2011 letter from his superior confirming that he would be based in Toronto with some travel required, which the father did in fact choose to do in 2012 to increase his income once the parenting schedule had been set and the mother did not agree to an extension of the children’s time with him.

[62] Second, in September, 2014, the father took on new positions as “Director, Legal Solutions” at Thompson Reuters and “Global Director” at Pangea 3, a legal outsourcing business with a client base in Canada and Europe. He provided a letter from Joe Borstein dated December 16, 2014 setting out that although Mr. Blase had travelled for his employment with the company, there are no expectations of him to travel in the future. The father testified at the trial that this job does, however, require international travel.

[63] This is not a material change which is a “distinct departure from what the courts could have reasonably anticipated in making the previous order.” [Gordon v. Goertz, supra, par 12]. And, the previous Order would not have been different had these circumstances prevailed earlier. The father’s consent to that order came because he controlled his own travel schedule. After the order, he went abroad for work more often because he did not have the children. The two jobs, before and now, are very similar.

[64] The father was asked, prior to this trial, to provide a copy of his employment contract with Thompson Reuters and other documentation showing his travel pattern from 2012. He refused. That evidence might have assisted this court in deciding whether the father was, indeed, “more available to meet the needs of the children” and whether the job he had before the Final Order was different at all from the one he has now. Without it, there is no evidence for me to find that there is any change of circumstances altering the father’s ability to meet the children’s needs in a fundamental way.

(2) The Mother’s Alleged Failure to Consult and Confer with the Father in Breach of the Order

The father alleges that the mother has repeatedly failed to consult with the father on matters and pays lip service to the mediation process. She has chosen to interpret the Klowak Order in a way that is neither fair nor reasonable. She is rigid and resistant to his proposals. She thinks she has sole custody and treats Friedrich as nothing more than a visitor in the children’s lives. The mother is of the view that she does not have to consult with the father on issues except those specifically listed in paragraph 2 of the Order.

[65] The father’s evidence consisted of numerous examples to support this ground that the mother has breached the order. He contends that she failed to “meaningfully” consult on religious, education, health care and child care (nanny) decisions. To the contrary, I find on the totality of evidence in the trial, that she simply did not agree with his positions about how to raise the children. The mother did, in fact, confer and consult. Because she does not agree with his positions, the father has chosen to characterize her behavior as a breach of the intent of the order. The evidence does not support his position.

[66] The father argued this allegation with support from reliance on the case of Hsiung v. Tsioutsioulas, 2011 ONCJ 517). The facts of that case are distinguishable from the facts of this case. In that case, the trial judge found that the mother had relentlessly excluded and isolated the father from medical appointments and medical staff for their severely ill son. She had deprived him of access to medical information about their child breaching a court order requiring her to consult with the father. That is far from what has happened in this matter.

[67] First, and of note, is that at the outset of this trial, the father opposed the mother’s filing any email correspondence between the parties and, in some cases, with Dr. Butkowsky. The emails related to all the issues set out in paragraph 2 and 3 of the Klowak Order. Counsel for the father had previously refused to accept service of this material prior to the motion to change for no apparent reason. The email communications show consulting and conferring between the parties on more than just major issues, but also on small day to day issues as well. I have listed most of the subjects already in paragraph 35, of this judgment. The father’s position on keeping this highly relevant evidence out of the trial has hurt his credibility in my opinion. It became apparent early in the proceedings that this evidence entirely undermines his claim that Ms. Easson has failed to consult and confer with him about the children.

[68] Second, there is no evidence the mother engaged in a pattern of excluding the father from relevant parenting issues that fundamentally precluded him from meeting the children’s needs.

[69] The Final Order does not give joint custody to the parents. The father interprets it as though it should. The Klowak Order anticipates exactly what has transpired between these parties. There is no material change here which is a distinct departure from what the Court could reasonably have anticipated when the order was made. The reasons are as follows.

(a) Health Care

[70] The emails provide evidence that the mother informed the father of upcoming medical appointments and reported the outcome of them to him. She reported changes in the doctors the boys saw and any surgeries they underwent. The father took no issue with any of these matters when they occurred. The father also admitted during questioning that the information the mother provided was adequate and he did not require further mediation about it with Dr. Butkowsky.

[71] The father’s complaints in the area of health care against the mother demonstrate their toxic relationship rather than her breach of the order as he alleged.

(b) Education

(i) The father testified the mother made unilateral decisions about the children’s education. Email communication between the parties dated July 2 and 3, 2009 showed that the couple did confer about the issue and the father accepted the decision about Nikolas’ attendance at Lycée Français;

(ii) Nikolas’ schooling for September, 2010 was discussed by the parents in early 2010 and again at a four-way meeting amongst the parties and their lawyers in June, 2010. As a result, the child was registered at Pierre Elliot Trudeau French Public School. The father then agreed to a subsequent school transfer for Nickolas to École Charles Sauariol in September 2012, when it was opened and because it is closer to the mother’s house. The father has also agreed to Nikolas attending high school at École Secondaire Toronto Ouest for September, 2015;

(iii) The father reluctantly agreed that Julian should attend École Charles Sauriol in 2013 because his brother, Nikolas, was attending there. He has refused to mediate Julian’s 2015 school, but wishes him to attend the school in his district, which is Pierre Elliot Trudeau.

[72] The parties argued over the issue about whether the mother needed a nanny. The father reduced and then stopped paying his share of the nanny expenses in September 2013 when their youngest boy started school. He has made payments since December 2014 due only to enforcement of the Klowak Order by the Family Responsibility Office.

[73] The Klowak Order mandated payment of the child care expenses until a review in July 2016.

[74] The father had previously agreed to paying his share of these costs in two prior Consents dated October 18, 2010 and July 19, 2011.

[75] In spite of his agreements, the father has tried to renegotiate this arrangement beginning months after the Final Order through his lawyer and through mediation with Dr. Butkowzky.

[76] There is evidence and I find that the mother needs the nanny. In any event, it is agreed to in the Final Order and not under review by me.

(d) The Father’s Behavior

[77] There is evidence that the father has failed to communicate with the mother before and after the Final Order and refused her information when she asked for it. He did the following:

(i) He did not tell the mother he had introduced the children to his new partner, Rhonda, before the Final Order;

(ii) He did not tell the mother he had purchased a new home in 2011;

(iii) He did not tell the mother about taking Nikolas to a chiropractor in 2013 and a naturopath in 2014. These may not be characterized as major medical issues and he may have justified his non-disclosure by defining them as day-to-day concerns of the child; nonetheless, he is not without some responsibility for poor communication with the mother;

(iv) He did not consult the mother when he registered Julian in a new school for September 2015 in his district. She had no knowledge of it and did not consent to it. Perhaps he expected success at this motion and wanted to be prepared; and

(v) He also refused or was reluctant to give details to the mother about small issues like bacon fat burns to Nikolas, medical care for his nose bleeds, medical care for the children during a trip to the Dominion Republic and medical treatment for a cut to Julian’s face.

(d) The Boys are Older

[78] This ground for the motion is without merit. It was foreseeable the children would grow older. And, their time with the father was coordinated once Julian got to an age where he could spend overnights with Friedrich and Rhonda – six months after the Final Order. All of this was contemplated in the order. Their time will now also be increased on consent of the mother.

[79] The father relies on the case of Stirling v. Blake 2013 ONSC 5216 for the proposition that passage of time and the wishes of the children amount to a material change. He submits that because the boys have been with the father for alternate weeks in the summer, there is no reason not to continue with that schedule during the rest of the year.

[80] First, the children are eleven years old and six years old. In Stirling, the children were thirteen and fourteen years old. It has only been two years since the Final Order. The summers are obviously a different time from what is the most stable routine residential schedule. Second, I have no evidence of the children’s wishes regarding their residential schedule. In Stirling, the children were represented by the Office of the Children’s Lawyer. Stirling does not assist me in these proceedings.

Conclusion

[81] First, I do not accept counsel for the father’s submission that Ms. Easson’s change of position at my urging at the beginning of the trial is an admission that there is a material change. I am certain that had I not suggested that the parties try to compromise, she would not have offered the extra time as part of her ultimate position at trial. In addition, she has maintained her stance that the motion should otherwise be dismissed. Her positions on the issues are reasonable in the circumstances.

[82] Second, there is no material change demonstrated on the evidence in the trial.

The Best Interests of the Children

[83] Although the father has not demonstrated a material change in circumstances, I will comment briefly about this aspect of the motion had I to decide it.

[84] The best interests of the children are being served now and will be served better with increased parenting time by the father from Wednesday morning through Monday mornings on alternate weekends – as the mother has proposed.

[85] Both parties are good parents. Both play a significant role in the children’s lives. The children are presently doing well according to both parents. Nikolas’ medical needs have been well looked after by Ms. Easson and are under control. Both boys play and enjoy power soccer. Both boys have adjusted well to the French school system and are thriving socially. This is not a case where I would fashion a parallel parenting regime. There is no need to remove mother’s decision making authority because the parents cannot get along. In fact, it is appropriate in these circumstances, that one parent has the final say.

[86] The children have flourished in the mother’s stable and continuous care. To divide the decision making about their lives up between these parents and to give Mr. Blase control over two important aspects of the children’s lives (health and education) would now create chaos for the children and would be anything but in their best interests. The issues of religion and the use of the nanny, which the father wishes the mother to keep as part of her decision making authority, are or will soon be non-issues. The issues of education and health care are important ongoing concerns which should not now be taken over by the father. They are being adequately taken care of by Ms. Easson.

[87] Throughout the trial, I found both parents to be strong and willful. Both have particular ideas about how to raise their children. The father, however, appears more to want his way, especially if it is not what the mother wants. I fear that if he were given complete control over the decision making he asks for, the children would not receive the continuity of care they now receive. In fact, the father may use his new power to harm the children’s relationship with the mother.

[88] Examples of the unnecessary conflict between the parties are numerous. I have already dealt with many of them in the judgment. A summary of some more are illustrative of why the children should not be subjected to “two masters” when the masters can create very little but war:

The mother received hostile emails from the father calling her names such as selfish, a terrorist, crazy, and a hyprocrite. He told her she needed help and she liked to eat shit. He told her he was saving her email to show the children when they got older.

On his side, the father claims the mother is the controlling one through her “passive aggressive” – almost ownership attitude towards the children. That may, indeed be true. She, is, nonetheless raising the children with him and disrespect towards her serves only his own interests and not that of the children. At the questioning, the father called the mother’s lawyer a “f-cking c-nt.” He justifies his behavior as the appropriate response to the mother’s unreasonable behavior. His position is unjustifiable;

Each parent has been resistant with respect to providing travel consents. The father threatened to call U.S. border guards if the mother travelled there in 2010. In 2011, he refused to let her go to Mexico with the children and her family. The mother responded in later years by providing the children’s passports and consent to travel reluctantly and after much consternation and anxiety to the father. Things seem to have become more reasonable in recent years – but only with the help of third parties – usually the lawyers;
The father threatens litigation when he perceives he is not being fairly treated by the mother in spite of the detailed provisions of the order which he fails to accept;
The civil construction litigation the couple was drawn into regarding the matrimonial home became a tug of war when the father refused to sign releases between early 2013 and May 2014 even though they would have protected him from civil liability. The father, instead, sued the mother and her lawyer (who had previously also acted for him). The result of his suit was that he withdrew against both of them (only in April 2015 against the lawyer, Phil Horgan, and “with prejudice” to the lawyer). The father’s refusal to sign the releases when he had agreed to do so before and in the Klowak Order is an example of his mischief towards Ms. Easson and the children. Instead of signing and allowing the home to be fixed, his holding off to extract information regarding the settlement proceeds and other concessions cost the mother legal fees, anxiety and time in a safe environment;

I did not and am not hearing that litigation and have not made any findings that impact any finding I make here. I use the situation to illustrate that the matter is another example of the tug of war between these parents which negatively impacts their sons;

In May, 2012, the mother got notice in the mail that the father had tried to change Julian’s last name in a German court without her knowledge from “Blase-Esson” to “Blase”. The father later agreed not to change the child’s name in the Klowak Order, but continues to use the name “Blase” for Julian in U.S. tax filings, travel consent letters and on the labels of the child’s clothes;
The father appears, in some instances, to be involving the children in the couple’s conflict by, as I have previously noted, implying to Nikolas that his mother was to blame for their failed trip to the Brazil World Cup final in 2014. Julian has questioned his mother about the residential schedule when he should know nothing about it. The children should not be drawn into this litigation. In this regard, the father seems unable to put their interests before his own;
The father is unable to follow the Final Order by waiting until July, 2016 for a review of the nanny expenses as he agreed to do. He took it upon himself to curtail and then stop paying them and is now doing so only due to an enforcement order.

[89] I cannot and will not imagine what material change would justify changing the Final Order. The best interests of these children are already being served. The parallel parenting regime suggested by the father would serve only to undermine the children’s stability in the context of their parents’ unstable relationship.

The Order

[90] The respondent’s motion to change the Final Order of Justice Klowak, dated May 14, 2012 is dismissed. The children shall reside with the father on alternate weeks from Wednesday morning from the start of school through Monday mornings until the start of the school day. If the Monday is a holiday, then the boys shall remain with the father until the Tuesday until school begins.

[91] The parties shall argue the issue of costs in writing. The applicant shall submit a Bill of Costs and submissions. The written submissions shall be no longer than five pages in length excluding attachments. She has until Friday, October 2, 2015 to file her submissions.

[92] The respondent has until October 16, 2015 to respond in the same manner.

McWatt J.

Released: September 18, 2015

COURT FILE NO.: FS-10-00360434-0001

DATE: 20150918

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LARISSA LOUISE EASSON

Applicant

– and –

FRIEDRICH RUDOLPH BLASE

Respondent

REASONS FOR JUDGMENT

Re: Respondent’s motion to change the Final Consent Order of Klowak J. dated May 14, 2012

McWatt J.

Released: September 18, 2015

Easson v. Blase, 2015 ONSC 5170

Case Summary

INTRODUCTION

The Issues

The Facts

THE LAW

The “Best Interests of the Children” in Variation of Custody

ANALYSIS

Conclusion

The Best Interests of the Children

The Order

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 3

Legislation 1