CITATION: Roloson v. Clyde, 2017 ONSC 3642

COURT FILE NO.: F 2065/05

DATE: 2017/06/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Michelle Ann Roloson

Applicant

– and –

Richard Scott Clyde

Respondent

Self-represented

Kirsten Hughes, for the Respondent

HEARD: October 18, 20 and 21, 2016; November 29 and 30, 2016; December 1, 2, 6, 7, 8 and 9, 2016

The Honourable Madam Justice Deborah L. Chappel

JUDGMENT

PART I: INTRODUCTION

[1] These are my Reasons for Judgment in connection with the trial of a Motion to Change Final Order which the Applicant commenced on September 17, 2014. The trial involved the issues of custody, time-sharing, retroactive adjustments to child support and ongoing child support respecting the child Tanner Justin Clyde, born July 18, 2003 (“Tanner”). Tanner is the only child of the relationship between the Applicant and the Respondent. The Applicant commenced this proceeding to change the final orders of Lafrenière, J. dated April 2, 2007 and McLaren, J. dated August 10, 2011.

[2] The issues to be determined in this case are as follows:

1. Have there been any material changes in circumstances that satisfy the threshold test for bringing a Motion to Change respecting custody and time-sharing respecting Tanner?

2. If there have been material changes in circumstances that meet the threshold test for a Motion to Chance custody and time-sharing, what alterations if any to the existing custody and time-sharing terms are in Tanner’s best interests having regard for those changes?

3. Have there been material changes in circumstances that satisfy the threshold test for changing the child support terms of the orders?

4. Assuming that the threshold test for changing the child support terms has been met, should the Applicant be permitted to pursue a claim for retroactive increases in child support from the Respondent?

5. In the event that the Applicant is permitted to pursue her claim for retroactive child support, has she made out a case for retroactive increases to child support payable by the Respondent to her, and if so, what is the appropriate date from which retroactive relief should begin?

6. Should an order be granted requiring the Applicant to pay the Respondent child support effective September 1, 2015, based on the temporary order of Pazaratz, J. dated August 20, 2015 placing Tanner in the Respondent’s primary care, and if so, what is the appropriate quantum of child support payable?

7. Depending on the outcome of the custody, access and time-sharing issues in this case, what order should be made respecting child support and contribution to section 7 expenses on a prospective basis?

8. What are the appropriate dispositions respecting costs in connection with the case conference of December 4, 2014, the “to be spoken to” appearance on November 2, 2015 and the Respondent’s ex parte motion before Lafrenière, J. on July 18, 2016?

[3] For the reasons that follow, I conclude that material changes in circumstances have occurred which support variations to both the custody and time sharing terms of the April 2, 2007 order and the child support terms in the orders dated April 2, 2007 and August 10, 2011. I have decided that it is in Tanner’s best interests to grant the Applicant sole custody, and to reinstate the regular equal time-sharing arrangement that was in effect until August 20, 2015. I have made a number of other changes to the April 2, 2007 order that are incidental to the change in custody, and I have altered the order in a number of ways to resolve areas that have caused considerable conflict between the parties.

[4] With respect to child support, I have dismissed the Applicant’s claim for retroactive increases in child support commencing September 2012, and for upward adjustments to support from the commencement of these proceedings until August 20, 2015. I have made an order requiring her to pay child support to the Respondent for the period from September 1, 2015 until May 31, 2017, when Tanner was in the Respondent’s primary care. With respect to ongoing support, I have directed that the Respondent pay the Applicant a set-off amount of support of $501.00 per month commencing June 1, 2017. In addition, I have ordered the parties to contribute to s. 7 expenses pertaining to Tanner on a proportionate-to-income basis commencing June 1, 2017.

[5] With respect to costs, I have made an order fixing the Applicant’s liability to the Respondent for costs previously ordered in these proceedings up to and including December 9, 2016 in the amount of $3,665.00 inclusive of HST and disbursements. I have also ordered that there shall be no costs payable in connection with the court appearances on December 4, 2014, November 2, 2015 and July 18, 2016. Finally, I have rescinded paragraph 5 of the order dated August 20, 2015, which suspended enforcement of child support payments owed by the Respondent to the Applicant pursuant to that order and credited the payments towards costs payable by the Applicant to the Respondent.

PART II: BACKGROUND AND OVERVIEW OF COURT PROCEEDINGS

[6] The Applicant and the Respondent became involved in a relationship in approximately May 2002. Tanner is the only child of their relationship. The Applicant unexpectedly became pregnant with Tanner soon after the parties began dating, and the parties began to cohabit prior to Tanner’s birth. They separated in approximately March 2005, when Tanner was almost 2 years old. The parties shared equal time with Tanner following their separation in 2005, with the time-sharing arrangements revolving around the Respondent’s work schedule.

[7] The Respondent began a relationship with another woman, Laura, following the separation and cohabited with her for a period of time. He met his wife, Debbie Clyde, in 2009, and they were married in 2013. Debbie Clyde has two children from a previous relationship who live with her and the Respondent. Her son Devin was 17 years old as of the trial of this matter and her daughter Hunter was fourteen years of age. The Applicant had a relationship with another man following the parties’ separation but is currently not in a relationship.

[8] Following the parties’ separation, the time-sharing arrangements respecting Tanner were structured according to the Respondent’s work schedule, which resulted in a rotating two week time-sharing regime. In Week One, the Respondent had Tanner on Monday and Tuesday night, the Applicant had him on Wednesday and Thursday night, and the Respondent had him from Friday until Sunday night. In Week Two, the weeknight time was reversed, such that the Applicant had Tanner on Monday and Tuesday night, the Respondent had him on Wednesday and Thursday night and the Applicant had the weekend from Friday until Sunday.

[9] The Applicant commenced court proceedings to address the Family Law issues between the parties in 2005. The parties resolved the issues of custody, time-sharing and child support, and the terms of their agreement were incorporated into an order of Lafrenière, J. dated April 2, 2007 (“the order”). The relevant terms of this order for the purposes of this proceeding were as follows:

1. The Applicant and Respondent were granted joint custody of Tanner. However, each party was granted the right to make daily decisions respecting the child while he was in their care.

2. The parties were granted equal time with Tanner. The regular time-sharing arrangements were set out in paragraph 3 of the order, which provided for a 4 week rotating residency schedule. Paragraph 4 of the order specifically stipulated that any changes to the residence schedule would take into consideration the Respondent’s employment schedule and Tanner’s best interests.

3. The order included a fairly strict right of first refusal clause relating to the care of Tanner. Paragraph 6 stipulated that the parties were to ensure that they were always present with Tanner during their time with him, with the exception of two hours per day, or on weekend evenings after Tanner was in bed for the night. Paragraph 7 provided that in the event that either party needed to be away from Tanner for periods in excess of these stipulated times, they were to notify the other party forthwith to determine if they were able and willing to assume care of Tanner.

4. Paragraph 8 of the order provided that Tanner was to be with the Applicant for the first two weeks of July and the first two weeks of August each summer. The Respondent was to have Tanner for the last two weeks of July and the last two weeks of August each year. The order specifically provided that the non-residential parent during these periods would only have telephone contact with Tanner during the summer vacation. The only exception to this term was that the Applicant was granted the right pursuant to paragraph 16 of the order to have a two hour visit with Tanner on his birthday, July 18^th. This day falls within the Respondent’s two week summer vacation period with Tanner.

5. The order also addressed time-sharing during other special occasions and holidays.

6. Paragraph 18 stipulated that the parties were to discuss any significant decisions regarding Tanner, including decisions regarding the child’s health, education and religion. It further provided that if the parties were unable to reach a decision on a major issue, they were to undertake mediation. If agreement could still not be reached, they were to undertake a Mediation/Arbitration process in an effort to resolve any disagreements.

7. Paragraph 19 imposed an obligation on the parties to notify each other if the child is hurt or ill within an hour of becoming hurt or ill. Furthermore, it provided that if either party did not abide by this term, the other party would have the right to have the time-sharing arrangements reviewed by the court.

8. Both parties were to attend Tanner’s medical appointments, and to inform each other of any appointments within one day after they were set.

9. Paragraph 28 provided that each party was to attend a class to educate themselves regarding Tanner’s asthma and to complete this course within six months. Paragraph 33 required the parties to ensure that Tanner is not exposed to smoking, having regard for his asthma.

10. Paragraph 25 required each party to discuss their choice of extracurricular activities for Tanner with the other party, and to coordinate activities together to the best of their ability. It further stipulated that if the parties disagreed about which activity to enroll Tanner in, the child was not to participate in the activity.

11. Each party was granted the right to daily telephone contact with Tanner at 7:30 p.m. each night. The parent with care of Tanner was required to ensure that Tanner was available at that time to speak on their home telephone or their cellular phone.

12. Pursuant to paragraph 34, if either party wished to travel with Tanner overnight or longer from their usual residence, they were required to provide the non-travelling party with the destination, duration and an emergency telephone number where they can be reached.

13. With respect to child support, the Respondent was required to pay the Applicant support for Tanner in the amount of $530.00 per month commencing January 1, 2007. This was a straight set-off amount, based on the Applicant’s income of $9,396.00 and the Respondent’s income of $58,900.00. In addition, the parties were ordered to share the cost of any extracurricular activities for Tanner in proportion to their respective incomes.

[10] The regular time-sharing arrangements respecting Tanner were adjusted from time to time. The arrangement that the parties eventually implemented involved Tanner making exchanges between the parties’ homes every Monday, Wednesday and Friday after school. This resulted in a rotating two week schedule whereby in Week One, Tanner had overnight time with his mother on Monday and Tuesday, and was with his father overnight on Wednesday and Thursday. In Week Two, Tanner was with his father overnight on Monday and Tuesday, and with his mother overnight on Wednesday and Thursday. The parties alternated weekends, from Friday after school until Monday after school. This was the arrangement in effect as of the time of the commencement of these proceedings.

[11] In 2011, the Respondent was laid off from his employment with Stelco and began receiving Employment Insurance benefits. In response to this development, he commenced a Motion to Change Child Support to reduce his child support payments to the Applicant. On August 10, 2011, McLaren, J. granted a final order changing paragraph 35 of the order dated April 2, 2007 to provide that the Respondent would pay the Applicant child support in the amount of $327.00 per month, based on his annual income at the time of $35,308.00, commencing June 1, 2011.

[12] The current proceedings commenced on September 3, 2014. On that date, the Applicant brought an urgent motion without notice to the Respondent, prior to the commencement of a formal Motion to Change Final Order, requesting an order for temporary sole custody of Tanner, and an order that Tanner remain enrolled at C.B. Stirling Elementary School in Hamilton (“C.B. Stirling”), where he had been attending since grade 1. As I will discuss in further detail below, the parties had discussions leading up to September 2014 about where Tanner should attend school commencing September 2014, because neither of them resided in the catchment area for C.B. Stirling. The parties disagreed about which school Tanner should attend, and the issue had not yet been resolved by the commencement of school on September 2, 2014. The Respondent therefore enrolled Tanner at Lynden Park Elementary School (“Lynden Park”) on September 2, 2014. This is the school for the catchment area in which the Respondent and his wife reside. At the hearing of the motion on September 3, 2014, Brown, J. decided that the test for dealing with the motion on an ex parte basis had not been met, and accordingly adjourned the motion sine die to allow the Applicant an opportunity to serve the Respondent. Both parties attended court later that day and appeared again before Brown, J. A case conference was scheduled for September 4, 2014. When the matter returned before Brown, J. on September 4, 2014, they indicated that they had prepared an Out-of-Catchment application for Tanner to attend C.B. Stirling. On that date, a temporary order was made that Tanner would continue to attend C.B. Stirling if the Hamilton-Wentworth District School Board accepted the application for him to attend school out of his catchment area. The motion was again adjourned sine die.

[13] On September 17, 2014, the Applicant commenced the formal Motion to Change Final Order that was the subject of this trial. In her Motion to Change, she requested that the final orders be changed to grant her sole custody of Tanner, and for the Respondent to have alternate weekend access with Tanner. In addition, she requested that the child support order dated August 10, 2011 be changed to require the Respondent to pay her the full Table amount of child support under the Child Support Guidelines (Ontario), O. Reg. 391/97, as amended (the “Guidelines”) based on his current income. As of September 2014, the Respondent was paying child support in the amount of $600.00 per month. The Applicant also requested that the Respondent be required to contribute to Tanner’s hockey expenses, totalling $365.00 per year. On December 4, 2014, the Applicant’s Motion to Change was varied to include a claim for retroactive adjustments to child support effective September, 2012.

[14] On September 17, 2014, the Applicant brought another urgent motion on an ex parte basis, seeking temporary custody in order to address the school issue. McLaren, J. held that the test for dealing with the motion on an ex parte basis had not been met, and adjourned the motion to September 19, 2014 to allow for service on the Respondent. On the return of the motion on September 19, 2014, McLaren, J. made an order on consent permitting the Applicant to enroll Tanner at C.B. Stirling. Tanner was in fact enrolled at C.B. Stirling for the 2014-2015 school year, and he continued to attend that school as of the time of trial. On September 19, 2014, McLaren, J. also made an order referring the case to the Office of the Children Lawyer (the “OCL”) once again. Unfortunately, the OCL declined to provide services to the family at that time.

[15] The Respondent filed his Response to Motion to Change on October 20, 2014. He requested that the final order be changed to grant him sole custody of Tanner, with alternate weekend access to the Applicant from Friday after school until Monday morning. With respect to child support, he requested an order requiring the Applicant to pay him the Table amount of child support, and an order that the Applicant contribute to the child’s section 7 expenses on a retroactive and ongoing basis.

[16] The course of this case since the fall of 2014 has been arduous, to put it mildly. There has been a multiplicity of proceedings. A review of this history is important, because it provides insight into the parties’ general character, judgment, insight and functioning. In addition, as part of the relief requested at trial, the Respondent asked that I deal with the issue of costs in relation to three court attendances.

[17] I presided over the case conference in this matter on December 4, 2014. The Applicant failed to prepare a case conference brief. The case conference focussed on procedural and disclosure issues, and I did not give opinions on the substantive issues in dispute. I made another referral to the OCL on that date. In addition, I made a very detailed order requiring both parties to exchange and file important financial information required in order to resolve this case. Specifically, with respect to the Applicant, I ordered that she produce and file the following:

1. Her complete Income Tax Returns with all required attachments, Notices of Assessment and Notices of Reassessment for 2011 to 2013;

2. Proof of her total 2014 income;

3. An affidavit outlining her work history since January 2011; and

4. A summary of her attempts to secure employment with documentary evidence supporting those efforts, and a detailed summary of any reasons for her claim that her capacity to work has been impaired with documentary proof to support this claim, including relevant medical records.

[18] On December 4, 2014, I also ordered the Respondent to produce and file copies of all attachments to his Income Tax Returns for 2011 to 2013, proof in support of all expenses declared against income for 2011 to 2013, proof of total year to date 2014 income and a chart outlining all s. 7 expenses that he had paid for since January 2011, with documentary proof in support of same. I also ordered that both parties exchange child budgets for the purposes of the shared parenting child support analysis.

[19] The Applicant has demonstrated non-compliance with court orders made in this proceeding commencing from the date of the case conference. With respect to the referral to the OCL, that office declined to provide services to the family following the second referral because the Applicant failed to submit an Intake Form to that office within the prescribed time. The Applicant also failed to comply with many aspects of the disclosure order that I made on December 4, 2014. In response to this non-compliance by the Applicant, the Respondent brought a motion on February 20, 2015 seeking an order striking the Applicant’s Motion to Change Final Order. At the hearing of the motion, Pazaratz, J. found that the Applicant clearly knew that she had to complete another Intake Form for the OCL, and that her only explanation for failing to do so was that she forgot. However, he dismissed the motion as it related to the Applicant’s custody claims on the basis that her failure to submit the OCL form was her only non-compliance on the custody and access issues. He referred the case to the OCL for a third date, and directed the Applicant to file a new Intake Form. With respect to the child support issues, Pazaratz, J. concluded that the Applicant had failed to comply with most of the disclosure terms of the December 4, 2014. The Applicant brought some of the outstanding disclosure items to court with her on February 20, 2015, but acknowledged that there were still several items of disclosure that she had not produced. Pazaratz, J. concluded that the Applicant did not have any valid reason for her substantial non-compliance with the disclosure order, and that she had demonstrated a cavalier and irresponsible attitude towards the litigation that she had commenced. He therefore struck the Applicant’s child support claims in her Motion to Change. However, he made this order subject to the Applicant’s right to bring a motion by no later than May 1, 2015 for the reinstatement of her claims, upon demonstrating that she had produced all of the disclosure ordered by that date and that she had paid all costs ordered against her. He ordered the Applicant to pay costs to the Respondent in the amount of $3,000.00, payable by May 1, 2015, in connection with the case conference and the appearance on February 20, 2015.

[20] The parties were back in court on March 20, 2015 due to conflict between them as to whether Tanner should be required to participate in a Kumon Math program. The Respondent had enrolled Tanner in the Kumon Reading program in July 2012. In August 2014, he decided to switch Tanner to the Math program. The Applicant alleges that she knew nothing about Tanner’s enrolment until after the fact, whereas the Respondent alleges that he discussed Kumon with the Applicant and had her approval prior to Tanner being enrolled. The Applicant initially agreed to a trial period of Kumon after the Respondent enrolled Tanner, on the condition that she did not have to contribute to the cost given her limited financial means. As I will discuss in further detail below, the Applicant revoked her consent to Tanner’s participation in Kumon sometime in approximately August 2014. The Respondent brought a motion on March 20, 2015, seeking an order directing the Applicant to take Tanner to Kumon lessons during her time and to ensure that he did his Kumon assignments when he was in her care. On April 2, 2015, Brown, J. ordered that the Applicant ensure that Tanner attends Kumon once per week during her time with him, provided that he was with her on a Monday, Wednesday, Thursday or Saturday of any given week. She further ordered that the Applicant ensure that Tanner completes his Kumon exercises while he is in her care. The Applicant was ordered to pay the Respondent costs of the motion in the amount of $1,500.00, payable within 30 days.

[21] Unfortunately, the litigation between the parties continued unabated during the spring of 2015 due to the Applicant’s lack of compliance with orders of this court. On June 12, 2015, the Respondent brought a motion for an order striking the Applicant’s custody and access claims in her Motion to Change. This request was based in part of the Applicant’s failure for a second time to submit an Intake Form to the OCL following the third referral to that office. On May 1, 2015, the OCL informed the parties that it had declined once again to become involved because of the Applicant’s failure to submit the form. The Respondent’s motion was also based on evidence that the Applicant had still not fully complied with the December 4, 2014 disclosure order, that she had completely ignored Brown, J.’s April 2, 2015 order relating to Tanner’s participation in Kumon and that she had not paid the costs of $1,500.00 that Brown J. had ordered her to pay on April 2, 2015 or the costs of $3,000.00 that Pazaratz, J. had ordered her to pay on February 20, 2015.

[22] Pazaratz, J. heard the Respondent’s motion to strike the Applicant’s outstanding custody and access claims on June 12, 2015. The Applicant failed to appear at the hearing, despite having been duly served. Pazaratz, J. found that the Applicant had still not yet fully complied with the December 4, 2014 disclosure order, had not paid the two costs award referred to above, had again failed to submit the OCL Intake Form, and had completely defied Brown, J.’s April 2, 2015 order by failing to take Tanner to Kumon and to require Tanner to complete his Kumon lessons during her time. In the face of the Applicant’s consistent non-compliance with orders of the court and her failure to attend court, Pazaratz, J. made an order striking the Applicant’s custody claims and confirmed that her pleadings relating to the financial issues would not be reinstated. He authorized the Respondent to proceed with his claims on an uncontested basis with oral evidence and made a further costs award against the Applicant of $2,000.00. The Respondent subsequently scheduled an uncontested hearing date of August 20, 2015 to determine his claims.

[23] Before the Respondent’s claims proceeded to trial, the Applicant brought a motion for an order finding the Respondent in contempt of various terms of the April 2, 2007 order. The first appearance on this contempt motion was August 7, 2015. On that date, Pazaratz, J. highlighted a number of difficulties with the contempt motion materials, but adjourned the contempt hearing to August 20, 2015, to be dealt with at the same time as the uncontested trial respecting the Respondent’s claims. At the hearing on August 20, 2015, the Applicant appeared with counsel, Ms. Katz, who acted as her agent on that day. She withdrew her contempt motion, but requested an adjournment of the uncontested hearing and a reinstatement of her custody and access claims. Pazaratz, J. noted serious concerns regarding the Applicant’s non-compliance with the court orders that had been made in this litigation, her failure to appear in court and her neglect to submit OCL Intake Forms on two separate occasions. However, he concluded that it was in Tanner’s best interests to permit a full hearing on the merits on the custody and access issues. Given the concerns regarding the Applicant’s conduct in the litigation and the parenting concerns that the Respondent had raised, he concluded that the Applicant’s time with Tanner should be reduced, and that a further referral to the OCL was appropriate. The order made on August 20, 2015 included the following terms:

1. The orders striking the Applicant’s child support, custody and access claims, were temporarily rescinded, but could be renewed by Pazaratz, J. if there were any further incidents of non-compliance by the Applicant.

2. The case was referred for a fourth time to the OCL, and the parties were directed to submit OCL Intake Forms to that office within 10 days. The order stipulated that if the Applicant again failed to submit an Intake Form, the Respondent could return the matter to Pazaratz, J.’s attention on 3 days’ notice to seek primary residence and sole custody on a temporary basis.

3. The time-sharing arrangements respecting Tanner were changed on a temporary basis, such that the Applicant was granted only one overnight week-night visit each week according to a rotating two week schedule. In Week One, the Applicant was to have Tanner overnight from Monday after school until Tuesday morning. In Week Two, the Applicant was to have Tanner overnight from Thursday after school until Friday morning. The alternate weekend time-sharing from Friday after school until Monday morning continued.

4. The Applicant was ordered to pay further costs to the Respondent in the amount of $3,000.00 on account of her contempt motion and the appearance on August 20, 2015.

5. The Respondent’s obligation to pay child support to the Applicant was reduced to $400.00 per month commencing September 1, 2015. However, enforcement of that amount was suspended, with payments to be credited against the total costs that the Applicant owed to the Respondent, until the costs were paid in full.

6. The time for the Applicant to comply fully with the disclosure order dated December 4, 2014 was extended to September 18, 2015.

7. The matter was adjourned to be spoken to on November 2, 2015 to determine if the OCL accepted the referral.

[24] The painful course of litigation in this case continued into the fall of 2015. On September 25, 2015, the Applicant brought a motion seeking temporary custody and primary residence of Tanner. The Applicant filed letters from Tanner in support of her motion. The motion came before Pazaratz, J. In his endorsement of September 25, 2015, Pazaratz, J. noted that the Applicant made submissions in court regarding numerous alleged concerns about Tanner that were not raised in her affidavit materials. He rejected the Applicant’s suggestions that nobody had been listening to her son about his wishes, noting that the court had made several referrals to the OCL, two of which had failed due to the Applicant’s conduct. However, having regard for the Applicant’s concerns about Tanner’s emotional well-being since the time-sharing arrangements were altered, he made a referral to the Hamilton Children’s Aid Society (“the Society”) with a request that it investigate immediately to determine if Tanner was in need of protection. The Applicant’s motion was adjourned to the “to be spoken to date” previously scheduled for November 2, 2015.

[25] When the matter returned to court on November 2, 2015, Pazaratz, J. noted that the OCL had declined to become involved in the case. Correspondence from the OCL dated October 14, 2015 indicated that the decision to decline services was based on the office’s assessment that “there have been multiple assessments or prolonged litigation,” and the materials provided suggested that there was little possibility that the involvement of the OCL would assist in resolving the matter. Pazaratz, J. noted on November 2, 2015 that the Society had completed an investigation into the concerns that the Applicant had raised regarding Tanner’s emotional well-being while in his father’s care, and that the Society had not verified the alleged concerns. In addition, he indicated that the Applicant had on two occasions advised him that she had filed complaints about him to the Canadian Judicial Council, but that he had not received notice of any such complaints. He declined to recuse himself from the file, noting that the Applicant had not brought a formal motion requesting this relief and that he had no basis to believe that there were grounds for such an order. He also emphasized concerns in his endorsement of this date regarding the Applicant bringing Tanner into the conflict between the parties. He noted that the Applicant had brought letters to the court signed by Tanner, and that she had raised the possibility of involving Tanner in social media or you-tube publicity about the case. He highlighted serious concerns that the Applicant did not appear to recognize the need to keep Tanner out of the litigation process. Ultimately, he adjourned the Applicant’s motion and the proceedings as a whole to January 11, 2016 to be spoken to, and made the following order:

1. The parties were to cooperate in arranging counselling for Tanner, and both parties were to be equally involved in the counselling.

2. The child’s residence was not to be relocated outside of Hamilton.

3. The Applicant was not to allow Tanner to participate in any publicity by way of media or you-tube in relation to the court proceeding or the parenting disputes between the parties. Tanner’s name, voice or image were not to be publicized in any way.

4. Any formal motion for an order that Justice Pazaratz be recused from the case was to be brought by no later than December 11, 2015.

5. Costs of the appearance were reserved.

[26] The Applicant brought a formal motion on November 20, 2015 requesting that Pazaratz, J. recuse himself from the file. Brown, J. adjourned that motion to December 18, 2015, before Justice Pazaratz. Costs of the appearance on November 20, 2015 were reserved. Notwithstanding the order of Brown, J., the Applicant brought a virtually identical motion on December 10, 2015, which was heard by Lafrenière, J. However, this motion included additional claims for primary residence of Tanner and child support from the Respondent. This motion was adjourned as well to December 18, 2015 before Pazaratz, J., and the Respondent was ordered to pay the Respondent costs of the appearance in the amount of $565.00, inclusive of HST.

[27] The Applicant’s two motions seeking an order that Pazaratz, J. recuse himself from the case proceeded before Pazaratz, J. on December 18, 2015. On that date, Justice Pazaratz concluded that the issue of his involvement in the file had become an emotional distraction for the Applicant, and that the Applicant would be resistant to any input or suggestions that he may advance. He concluded that it was appropriate in these circumstances to recuse himself, and accordingly made such an order.

[28] At the “to be spoken to” appearance on January 11, 2016, Brown, J. scheduled a Trial Management Conference for February 24, 2017 in order to move the litigation towards a final resolution. However, in the intervening period, the Applicant launched yet another motion on February 5, 2016. In that motion, she requested the following relief:

1. An order setting aside all orders that Pazaratz, J. had made from February 20, 2015 to December 4, 2015;

2. An order that Tanner’s primary residence be with her;

3. An order that the Respondent’s access with Tanner be between the Respondent and Tanner only;

4. An order requiring the Respondent to pay her ongoing child support in the amount of $1,000.00 per month, based on her position that the Respondent had an annual income of $135,000.00; and

5. An order requiring the Respondent to pay her retroactive child support in the amount of $25,000.00, plus interest.

[29] In response to this motion, the Respondent brought a cross motion seeking an order striking the Applicant’s pleadings, and that no further Motion or Appeal may be instituted or continued by the Applicant unless and until she had satisfied all outstanding costs orders and only with leave of the court. Brown, J. heard the motions on February 5, 2016. She concluded that there was no basis in law to set aside the orders of Pazaratz, J., or to change the time-sharing arrangements respecting Tanner. She noted that the Applicant was relying on virtually all of the same evidence that had been before Pazaratz, J. when he had made his previous orders. In addition, she emphasized that the materials that the Applicant relied upon consisted largely of unsworn notes and letters from Tanner, for which there was no evidence of the context in which the notes had been written. Brown, J. also dismissed the claim for retroactive child support on the basis that the Applicant had not led any evidence whatsoever to support her position that income should be retroactively imputed to the Respondent. She dismissed the Respondent’s motion to strike the Applicant’s pleadings on the basis that the evidence of the Applicant was required to determine Tanner’s best interests. However, she characterized the Applicant’s multiplicity of motions in this case as confusing and repetitive, and therefore ordered that the Applicant refrain from commencing any new motions or applications without leave of the court.

[30] Brown, J. held a Trial Management Conference in this matter on February 24, 2016. She made an order on that date that contained several important directions relating to the trial in this matter which were aimed at ensuring that the trial proceeded in an efficient manner. The Respondent complied with these directions. Unfortunately, the Applicant failed to comply with many aspects of the Brown, J.’s order. This resulted in extensive delays during the trial, since the Applicant was extremely disorganized with respect to her financial documents and other materials that she wished to adduce as evidence, and failed to produce the vast majority of these materials to the Respondent. By way of summary, she failed to comply with the following aspects of Brown, J.’s Trial Scheduling order dated February 24, 2016:

1. The Applicant was required to serve and file the Trial Record by July 29, 2016. She failed to do so, and the Respondent’s counsel therefore completed this task.

2. The Applicant’s intended witnesses were listed in the order. She only called one of the 9 witnesses that she identified at the Trial Scheduling Conference, and called other witnesses who she had not listed.

3. The parties were required to exchange brief summaries of the evidence that they anticipated each witness would give within 30 days. The Applicant failed to do so.

4. The Applicant was again ordered to comply with the disclosure order dated December 4, 2014. However, as of the commencement of trial, she had still failed to comply with the following aspects of that order:

a. She had not produced copies of complete Income Tax Returns with all required attachments for 2011 to 2013;

b. She had not produced proof of her total 2014 income;

c. She had not provided documentary evidence in support of her attempts to secure employment;

d. She had failed to produce evidence that substantiated her claim that her capacity to work had been impaired; and

e. She had not produced a child budget for the purposes of the s. 9 child support analysis.

5. The parties were required to produce updated Financial Statements, attaching proof of total 2015 income and year to date income for 2016 by July 29, 2016. The Applicant failed to do so.

6. The order required the parties to exchange Document Briefs including all documents that they intended to rely on at trial by July 29, 2016. The Applicant did not produce a Document Brief.

7. The parties were ordered to produce proposed draft orders at the outset of the trial. The Applicant did not produce a draft order.

8. The Applicant requested that a judicial interview be conducted with Tanner. Brown, J. ordered that this issue would be left to the discretion of the trial judge. However, she directed that if the Applicant wished to pursue this request, she was to serve a Notice of Motion and supporting affidavit seeking this relief by July 29, 2016. The Applicant did not serve a Notice of Motion on the Respondent, but nonetheless requested at the outset of trial that a judicial interview occur.

[31] This case was again before the court on July 18, 2016, due to difficulties which the parties were experiencing regarding summer time-sharing. Pursuant to the April 2, 2007 final order, the Respondent was to have Tanner for a two week period commencing July 16, 2016. For reasons that I will discuss in further detail below, the Applicant did not return Tanner to the Respondent on that date. In response, the Respondent brought an emergency motion on July 18, 2016, requesting an order that the police assist in enforcing his two week summer holiday time with Tanner, including locating, apprehending and delivering Tanner to the Respondent’s care. This motion was brought on an ex parte basis. Lafrenière, J. heard the motion and based on the evidence adduced by the Respondent, she granted the relief that the Respondent requested.

[32] The trial in this matter commenced on October 18, 2016. As I have stated, at the outset of trial, Ms. Roloson requested that I conduct a judicial interview of Tanner. I heard submissions from the Applicant and the Respondent’s counsel on the issue of whether I should conduct an interview. For oral reasons given on October 20, 2016, I concluded that a judicial interview would be appropriate and advised the parties that I would be meeting with Tanner. Although the Applicant had not brought a motion to seek a judicial interview, I considered it imperative in the circumstances of this case to ensure that Tanner’s voice was heard. The Applicant had failed to take the necessary steps to facilitate the involvement of the OCL, but I concluded that Tanner should not be penalized with respect to his right to be heard based on his mother’s neglect in submitting the OCL Intake Forms. I interviewed Tanner on December 8, 2016. The interview occurred in the library in the Judicial Chambers area, in the presence of a court reporter and court registrar. I directed that the parties not advise Tanner in advance of the interview, and arrangements were made for his grandmother to pick him up from school and bring him to court for the interview.

PART III: CREDIBILITY AND RELIABILITY ASSESSMENT

[33] Before turning to an analysis of the issues, some comments regarding the credibility and reliability of the parties are in order. As I will discuss in further detail below, both parties demonstrated strengths and weaknesses in their testimony. While they presented overall as genuine and credible, there were occasions during each of their testimony when they were resistant, unresponsive and frankly, not believable. Accordingly, an assessment of their credibility and reliability was required on an issue by issue basis.

PART IV: CUSTODY AND ACCESS ISSUES

I. POSITIONS OF THE PARTIES

[34] The Applicant requests an order for sole custody and primary residence of Tanner. Her position is that the Respondent should have regular access on alternate weekends, from Friday after school until Sunday at approximately 8:00 p.m. or 8:30 p.m., and such further and other access as Tanner wishes. She also seeks an order that the Respondent not be permitted to take Tanner to New Brunswick for summer holidays, which has been a family tradition for the Respondent for several years now.

[35] With respect to custody, the Applicant argued that the existing joint custody order is no longer workable due to the high level of conflict that has developed between the parties. Her view is that this discord is attributable to the Respondent’s repeated breaches of various terms of the April 2, 2007 order, his complete lack of respect for her as a parent, his disregard for her views and input on issues relating to Tanner, his poor judgment in relation to a number of parenting issues and his lack of sensitivity to Tanner’s wishes and concerns. She submitted that she has been a consistent, reliable and competent parent, has met all of Tanner’s needs, and has an appreciation of Tanner’s wishes and concerns that the Respondent lacks. Her concern is that the current joint custody arrangement has resulted in delays in making important decisions respecting Tanner, and has resulted in Tanner being subjected to numerous incidents of strife between the parties. In regard to time-sharing, she submitted that Tanner wishes to reside primarily with her, and that he feels that he is treated differently from his stepsiblings in his father’s home. She relayed concerns about the Respondent’s attention to Tanner’s medical needs, his inability to appreciate Tanner’s wishes and overall needs, and about Tanner feeling like the Respondent and his wife give preferential treatment to Mrs. Clyde’s two children. She also expressed concerns about her difficulties in maintaining telephone contact with Tanner while he is in the Respondent’s care.

[36] The Respondent also seeks an order for sole custody and primary residence of Tanner. On the issue of time sharing, he submits that the regular time-sharing terms of the April 2, 2007 order should be changed to provide that the Applicant shall have Tanner on alternate weekends from Friday after school, or 4:00 p.m. if there is no school, until Monday return to school or 9:00 a.m. if there is no school. He also requests that the summer time-sharing terms of the April 2, 2007 order be switched, so that the Respondent would have Tanner from July 1^st at 3:00 p.m. until July 16^th at 3:00 p.m., and from August 1^st at 3:00 p.m. until August 16^th at 3:00 p.m. each year. The Applicant would then have the last two weeks of July and August with Tanner. With respect to custody, he agreed with the Applicant that the existing joint custody arrangement is no longer feasible due to the extensive conflict that has developed between the parties. However, he disagreed about the source of this conflict. In his view, the challenges that have developed have been attributable to the Applicant’s poor judgment and problem-solving skills, her frequent irrational conduct, her inability to make sound decisions respecting Tanner, and her difficulties in communicating and working with professionals involved with Tanner. He emphasized that Tanner has special needs, and that effective and timely decision-making about him is therefore essential. His position is that he is the more competent parent, and that an order for sole custody in his favour is therefore in Tanner’s best interests.

[37] In regard to time-sharing, the Respondent’s view is that the Applicant’s regular time with Tanner should be limited to alternate weekends from Friday afternoon until Monday morning. In support of his position, he raised concerns about lack of structure and routine for Tanner in the Applicant’s care, the Applicant’s attention to Tanner’s needs, her tendency to bring Tanner into the midst of the parental conflict, and her poor judgment and coping skills, which result in Tanner being exposed to stressful situations. The Respondent’s position is that if mid-week access is ordered, it should be limited to evening visits only, with no overnight time. His suggestion in this regard is that there be an evening visit on Monday from after school until approximately 8:00 p.m. one week, and that the evening visit occur on Thursday at the same time in the following week. This would essentially mirror the existing temporary order of Pazaratz, J. dated August 20, 2015, with the exception that the overnight portion of access would be eliminated.

[38] The Respondent seeks to switch the time-sharing arrangements during the summer months due to the difficulties that have arisen over the past several years around Tanner’s birthday on July 18^th. The Respondent wishes to take an extended vacation in New Brunswick each summer, and the current time-sharing terms have caused problems in planning this vacation due to the provision that the Applicant is entitled to a two hour visit with Tanner on his birthday. He is willing to forego time with Tanner on his birthday so that he can maximize the time available to take the extended summer vacation with his family, including Tanner.

[39] The Respondent also seeks the following additional changes to the custody and access terms of the April 2, 2007 order:

1. He seeks to add a police enforcement clause, based on the conflict that has developed between the parties and the difficulties with respect to compliance with the time-sharing terms of the final order.

2. He submitted that paragraph 6 of the order, relating to the amount of time that Tanner can be in the care of a third party, and the right of first refusal provision in paragraph 7 of the order are dated, have caused serious problems from a practical standpoint and are no longer appropriate.

3. He seeks to terminate paragraph 18 of the order, which requires the parties to discuss significant decisions respecting Tanner, to comply with the recommendations of medical professionals, and to engage in mediation and to undertake arbitration in the event that disputes about the child cannot be resolved after mediation.

4. He requests that paragraph 28 of the order relating to the parties’ attendance at an asthma education program, also be terminated on the basis that it is no longer relevant.

5. He seeks an order requiring the Applicant to deliver Tanner’s passport and birth certificate to him, and that he be permitted to retain these documents.

II. THE LAW

A. Overview of Relevant Statutory Provisions

[40] The Applicant and Respondent were never married, and therefore the applicable legislation respecting the custody and access issues in this case is the Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended (the “CLRA”). Section 21(1) of the CLRA provides that a parent of a child or any other person may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child. Section 24(1) of the CLRA provides that the merits of an application in respect of custody of or access to a child shall be determined on the basis of the best interests of the child. Where the moving party seeks to change an existing custody or access order, the CLRA directs the court to undertake a two-stage analysis. First, the moving party must as a threshold matter establish that there has been a material change in circumstances since the existing order was made that affects or is likely to affect the best interests of the child. This requirement flows from section 29 of the CLRA, which provides as follows:

Order varying an order

29. A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

[41] If the moving party in a Motion to Change a custody and access order is unable to demonstrate that a material change in circumstances has occurred, the court must dismiss the variation proceeding (Gordon v. Goertz, 1996 191 (SCC), [1996] S.C.J. No. 52 (S.C.C.); Litman v. Sherman (2008), 2008 ONCA 485, 52 R.F.L. (6^th) 239 (C.A); Persaud v. Garcia-Persaud, 2009 ONCA 782 (C.A.); Easson v. Blase, 2016 ONCA 604 (C.A.)). On the other hand, if the “material change in circumstances” threshold is satisfied, the court must proceed to the second stage of the analysis, which involves a determination of the custody and access regime that is in the child’s best interests based on the current situation.

[42] The term “custody” refers broadly to parental decision-making and authority respecting a child (Young v. Young, 1993 34 (SCC), [1993] S.C.J. No. 112 (S.C.C.)). The incidents associated with custody include the responsibilities of providing physical care for the child, overseeing all aspects of day-to-day life and long-term well-being, determining the child’s residence, disciplining the child, and making major decisions about the child’s education, religion, health care, general well-being and activities (Young, at para. 26; Kruger v. Kruger (1979), 1979 1663 (ON CA), 25 O.R. (2d) 673 (C.A.); Baker v. Baker (1979), 1979 1962 (ON CA), 8 R.F.L. (2d) 236 (Ont. C.A.); Chou v. Chou, 2005 11195 (ON SC), [2005] O.J. No. 1374 (S.C.J.); Harsant v. Portnoi, 1990 6703 (ON SC), [1990] O.J. No. 1144, 74 O.R. (2d) 33 (H.C.J.)); Scott v. Chenier, 2015 ONSC 7866 (S.C.J.); Izyuk v. Langley, 2015 ONSC 2409 (S.C.J.); Chomos v. Hamilton, 2015 ONSC 5208 (S.C.J.)). The power which a custody order confers on a party is not a “right” that is granted to the party for their own benefit. Rather, as the Supreme Court of Canada stated in Young, at para. 25, the power that flows from a custody order “is designed to enable that parent to discharge his or her responsibilities and obligations to the child. It is, in fact, the child’s right to a parent who will look after his or her best interests.” (see also Racine v. Woods, 1983 27 (SCC), [1983] 2 S.C.R. 173, at 185 (S.C.C.); Frame v. Smith, 1987 74 (SCC), [1987] 2 S.C.R. 99, at p. 132 (S.C.C.)).

[43] The term “access” refers to the rights of a party in circumstances where the other party is granted sole custody. Access rights include not only visitation privileges, but also the right to make inquiries, and to be given information, as to the health, education and welfare of the child, unless the court orders otherwise.

[44] The factors that the court is required to consider in carrying out the best interests analysis are set out in sections 24(2) to (5) of the CLRA as follows:

Best interests of child

24(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child. 2006, c. 1, s. 3 (1).

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.

[45] The court has a broad discretion under the CLRA to fashion a custody and access order that includes specific terms and conditions which are appropriate to the circumstances of the family that it is assisting. This discretion is set out in section 28(1) of the Act, which provides as follows:

Powers of court

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

(a) by order may grant the custody of or access to the child to one or more persons;

(b) by order may determine any aspect of the incidents of the right to custody or access; and

(c) may make such additional order as the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the health, education and welfare of the child to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

[46] I turn now to a more detailed discussion of the two stages of the analysis in a custody and access variation proceeding.

B. The Threshold Test: A “Material Change in Circumstances” That Affects or is Likely to Affect the Best Interests of the Child

[47] The Supreme Court of Canada addressed the test that applies on a Motion to Change a custody and access order in Gordon. Although that case was decided under the Divorce Act, the general principles that the court articulated apply equally to custody variation proceedings under the CLRA (Brown v. Lloyd, [2015] ONCA 46 (CA); W.(A.C.) v. P. (T.M.), 2014 ONSC 6275 (Div. Ct.); Bjornson v. Creighton (2002), 2002 45125 (ON CA), 62 O.R. (3d) 236 (C.A.)). The “material change in circumstances” requirement set out in section 29 of the CLRA is similar to the threshold requirement to change a custody and access order set out in section 17(5) of the Divorce Act, R.S.C. 1985, c. 3 (2^nd. Supp.) as amended. The Supreme Court of Canada held in Gordon that as under the CLRA, the change required to justify a variation of a custody and access order under the Divorce Act must be “material” (at para. 10). The court emphasized that this threshold requirement ensures that variation proceedings do not turn into an indirect route of appeal from an earlier order. It highlighted that the judge hearing a variation proceeding cannot simply substitute their discretion for that of the judge who made the existing order. Rather, they must assume that the existing order was correct and consider only the changes in circumstances since the order was made (Gordon at para. 11; see also Docherty v. Beckett (1989), 1989 8869 (ON CA), 21 R.F.L. (3d) 92 (Ont. C.A.)). Accordingly, from an evidentiary standpoint, the court should consider only a limited amount of evidence predating the existing order, for the sole purpose of determining whether a material change in circumstances has been established (Hornan v. Hornan, 2007 CarswellMan 421 (Man. Q.B.)).

[48] The Supreme Court of Canada held in Gordon that a change in circumstances will only be considered as “material” for the purposes of a custody and access variation proceeding if it has altered the child’s needs or the ability of the parties to meet those needs in a fundamental way (at para. 12). In addition, the requirement of a “change in circumstances” clearly contemplates developments that have transpired since the existing order was made. On this point, the Supreme Court of Canada held in Gordon that the change relied upon should represent “a distinct departure from what the court could reasonably have anticipated in making the previous order" (at para. 12). The question that the court must consider on a variation proceeding is whether the previous order might have been different had the circumstances now existing prevailed earlier. Having regard for all of these considerations, the court concluded that in order to satisfy the threshold “material change in circumstances” test in a custody and access variation proceeding, the moving party must establish the following:

1. That there has been a change in the condition, means, needs or other circumstances of the child and/or the ability of the parties to meet those needs;

2. That the change materially affects the child; and

3. That the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order (at para. 13).

[49] The case-law that has addressed the meaning of the phrase “material change in circumstances” in the context of child and spousal support variation proceedings has also established that a change will only be considered “material” if it is significant and long-lasting (Brown v. Brown, 2010 NBCA 5, 2010 CarswellNB 30 (N.B.C.A.); Haisman v. Haisman, 1994 ABCA 249, 1994 CarswellAlta 179 (C.A.), leave to appeal to the S.C.C. refused, [1995] 3 S.C.R. vi (S.C.C.)). Trivial, insignificant or short-lived changes will not justify a variation (Haisman; Hickey v. Hickey (1999), 1999 691 (SCC), 46 R.F.L. (4^th) 1 (S.C.C.); Marinangeli v. Marinangeli, 2003 27673 (ON CA), 2003 CarswellOnt 2691 (C.A.)). These principles apply equally to the threshold test in a custody and access variation proceeding. The preliminary threshold test is aimed in part at ensuring that the parties do not resort to litigation whenever any change occurs, however minimal (Gordon, at para. 64; Neger v. Dalfen, 2016 ONCJ 751 (O.C.J.)). Not every circumstance, event or mistake by a parent that detrimentally affects a child will be considered a material change in circumstances for the purposes of a variation application. As Gray, J. stated in Kerr v. Easson, 2013 ONSC 2486 (S.C.J.), at para. 62, aff’d 2014 ONCA 225 (C.A.), “[p]arents are not perfect and they will make mistakes. The court will not assume jurisdiction to correct every mistake in the guise of a material change in circumstances.”

[50] In this case, the Applicant’s position is based largely on allegations that the Respondent has repeatedly breached numerous terms of the April 2, 2007 order. A party’s extensive non-compliance with an existing court order can amount to a material change in circumstances for the purposes of the variation analysis if the breaches have a harmful effect on the child (Kerr; Chin Pang v. Chin Pang, 2013 ONSC 2564 (S.C.J.); Zaidi v. Qizilbash, 2014 ONSC 3652 (S.C.J.); Merkand v. Merkand, 2006 CarswellOnt 712 (C.A.); V.J.S. v. L.J.G. (2014), O.J. No. 2238 (S.C.J.)).

[51] Both parties also base their custody and access claims to a large extent on the conflict that has developed between them since the April 2, 2007 order was made. The Ontario Court of Appeal has held that incidents of conflict between parties will not meet the threshold material change in circumstances test if the same level of conflict existed between the parties when the existing order was made (Litman v. Sherman, 2008 ONCA 485 (C.A.); Goldman v. Kudelya, 2017 ONCA 300 (C.A.)). However, the development of discord between the parties where none existed at the time of the order, or a significant increase in the level of the conflict since the order was made, resulting in an outright failure of the existing parenting plan, may meet the threshold test if it has had a negative impact on the child or has affected the parents’ ability to meet the child’s needs (Goldman).

C. The Best Interests of the Child

[52] If the threshold condition of a material change in circumstances is satisfied, the court must then embark upon an analysis of the custody and time-sharing arrangement that is in the child’s best interests, “having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them” (Gordon, at para. 29). In carrying out this task, the court must also take into consideration the factors set out in section 24 of the CLRA. The Supreme Court of Canada established in Gordon that at this stage, “the court should consider the matter afresh, without defaulting to the existing arrangement” (at para. 17). Both parties bear the evidentiary onus at the second stage of the analysis of demonstrating where the best interests of the child lie, and there is no legal presumption in favour of maintaining the existing custody and access arrangements (Bubis v. Jones, 2000 22571 (ON SC), [2000] O.J. No. 1310 (S.C.J.); Persaud v. Garcia-Persaud, 2009 ONCA 782 (C.A.); Deslauriers v. Russell, 2016 ONSC 5285 (S.C.J.)). The judge hearing the variation proceeding must consider the factual findings of the judge who made the existing order and the evidence relating to the changed circumstances to decide what custody and access terms are most supportive of the child’s best interests in light of the current situation (Gordon, at para. 17).

[53] As indicated above, sections 24(2) to (4) of the CLRA set out the factors that the court is required to consider in determining the best interests of the child in a custody and access case. The list of factors set out in sections 24(2) to (4) is not an exhaustive outline of the relevant considerations in carrying out the best interests analysis. The court is not required to specifically enumerate and analyze the criteria set out in section 24 of the Act, but rather must consider all of the factors that are relevant in the particular case that it is called upon to decide (Walsh v. Walsh, 1998 7134 (ON CA), [1998] O.J. No. 2969, 39 R.F.L. (4^th) 416 (C.A.)). The general and flexible best interests test allows for a uniquely tailored analysis of the custody and access issues, woven from the particular condition, means, needs and circumstances of the child whose well-being is under consideration (Van de Perre v. Edwards, 2011 SCC 60, at para. 13). As L’Heureux-Dubé, J. stated in Young at para. 74:

The wide latitude under the best interests test permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. Such discretion also permits the judge to focus on the needs of the particular child before him or her, recognizing that what may constitute stressful or damaging circumstances for one child may not necessarily have the same effect on another.

[54] The best interests of the child must be ascertained from the lens of the child rather than from the parents’ perspective; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure that the interests of the child are safeguarded and promoted (Young, at paras. 74 and 202; Gordon, at pp. 50, 54, 68). As the court stated in King v. Low, 1985 59 (SCC), [1985] 1 S.C.R. 87 (S.C.C.), at para. 101, the ultimate aim of the courts in resolving custody and access disputes is “to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as a mature adult.”

[55] The CLRA does not specifically highlight the desirability of maximizing contact between the child and each parent as a mandatory consideration in carrying out the best interests analysis in custody and access proceedings. The Act differs in this regard from the Divorce Act, which directs the court in both originating and variation proceedings to give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child (Divorce Act, sections 16(10) and 17(9)). Although there is no direct reference to this factor in the CLRA, the maximum contact principle has nonetheless been held to apply in the determination of custody and access issues under the CLRA (Bjornson v. Creighton (2002) 2002 45125 (ON CA), 62 O.R. (3e) 236 (C.A.). W.(A.C.) v. P. (T.M.), 2014 ONSC 6275 (Div. Ct.)). It is generally accepted that the best interests of the child are usually fostered by ensuring that the child has a loving relationship with both parents (Pastway v. Pastway (1999), 49 R.F.L. (4^th) 375 (S.C.J); Ferreira v. Ferreira, 2015 ONSC 3602 (S.C.J.), at para. 31; T.E.H. v. G.J.R., 2016 ONCJ 156 (O.C.J.)). If one parent does not facilitate a child’s relationship with the other parent, or improperly undermines that relationship, this will be an important consideration in determining their ability to meet the child’s needs (Leggatt v. Leggatt, 2015 ONSC 4502 (S.C.J.); T.E.H., at para. 442). However, the maximum contact principle is not an unbridled objective. As the Supreme Court of Canada noted in Young at para. 40 and Gordon, at p. 49, if other factors show that maximum contact would not in fact be in the child’s best interests, the court can and should restrict contact.

[56] The wishes of the child are also relevant to the best interests analysis, particularly in cases involving older children. However, as the Ontario Court of Appeal recently emphasized in L. (N.) v. M. (R.R.), 2016 ONCA 915 (C.A.) at para. 36, “the wishes of the child and the best interests of the child are not necessarily synonymous.” The weight that should be attached to a child’s expressed wishes will depend on numerous factors, including the age, intelligence and maturity of the child, their overall developmental status and capacity to form and articulate preferences, how clear the child’s wishes are and the consistency of those wishes over time (Decaen v. Decaen, 2013 ONCA 213 (C.A.); Stefureak v. Chambers, 2004 34521 (ON SC), [2004] O.J. No. 4253 (S.C.J.); Heuer v. Heuer, 2016 ONCJ 201 (O.C.J.)). In addition, in determining the weight, if any, which should be accorded to the child’s expressed wishes, the court should consider those wishes in the context of all of the circumstances of the case and carefully assess if there are any concerns as to whether the expressed wishes are an accurate reflection of the child’s true feelings. The court should give little weight to a child’s expressed wishes if the evidence indicates that those wishes have been tainted by negative influence, inducements or alienation exerted by the other parent or any other individual (L. (A.G.) v. D. (K.B.) (2009), 2009 943 (ON SC), 93 O.R. (3d) 409 (S.C.J.) at paras. 143-149; O.(C.) v. O. (D.), 2010 ONSC 6328 (S.C.J.) at para. 16; Decaen, at paras. 42, 44-45; L. (N.) v. M. (R.R.), at paras. 33, 36).

D. Custodial Frameworks

[57] The issue of decision-making respecting Tanner is a major area of dispute between the parties. Each party seeks to change the April 2, 2007 order to grant them sole custody rather than joint custody. The CLRA does not set out any specific criteria to assist in determining the appropriate decision-making order, apart from the general “best interests” test. As Lafrenière, J. stated in J.B.H. v. T.L.G., 2014 ONSC 3569 (S.C.J.) at para. 354, the ultimate goal in crafting an appropriate decision-making regime is to promote the child’s “right to grow up within a parenting regime that is cooperative and effective, where decisions are made in a child-focused way and with the least amount of acrimony and stress.” In deciding this issue, the court is required to consider all possible decision-making frameworks, and not simply those proposed by the parties (Chomos, at para. 109; Jackson v. Mayerle, 2016 ONSC 72 (S.C.J.); Ruffudeen v. Coutts, 2016 ONSC 3359 (S.C.J.)). Furthermore, as the Ontario Court of Appeal noted in M. v. F., 2015 ONCA 277 (C.A.), notwithstanding the positions of the parties, the court may decline to make any decision-making designation if such an approach is considered to be in the best interests of the child.

[58] Traditionally, the two custodial options that the courts have considered have been sole custody or joint custody. An award of sole custody to one parent grants decision-making rights to that parent, generally to the exclusion of the other parent to interfere in carrying out these rights and responsibilities (Kruger). The term “joint custody” is used to describe situations where both parents are given full decision-making authority and responsibility in all areas respecting the child, and must make those decisions together. In Kruger v. Kruger (1979), 1979 1663 (ON CA), 25 O.R. (2d) 673 (C.A.) and Baker v. Baker (1979), 1979 1962 (ON CA), 8 R.F.L. (2d) 236 (Ont. C.A.), the Ontario Court of Appeal held that joint custody is an exceptional remedy that should only be granted in circumstances where the parties demonstrate cooperation and appropriate communication, and are willing to try a joint custodial arrangement. In Kaplanis v. Kaplanis, 2005 1625 (ON CA), 2005 CarswellOnt 266 (C.A.) and Lawson v. Lawson, 2006 CarswellOnt 4736 (C.A.), the court deviated from the requirement of mutual consent to a joint custody order, but emphasized that in order to grant joint custody, there must be some evidence before the court that despite their differences, the parties are able to communicate effectively with each other for the sake of the children. The rationale for this principle is that the best interests of the child will not be advanced if the parties are unable to make important decisions regarding the child under a joint custody regime.

[59] The decision as to whether an order for sole custody or joint custody is in a child’s best interests is ultimately a matter of judicial discretion. However, as I recently summarized in the case of Jackson v. Jackson, 2017 ONSC 1566 (S.C.J.), a number of general principles have emerged from Kaplanis, Lawson and the subsequent case-law to assist in the decision-making process. These can be summarized as follows:

1. There is no default position in favour of joint custody. Each case is fact-based and discretion-driven (Kaplanis; Ladisa v. Ladisa, 2005 1627 (ON CA), 2005 CarswellOnt 268 (Ont. C.A); Rubinov-Liberman v. Liberman, 2014 ONSC 5700 (S.C.J.); Palumbo v. Palumbo, 2017 CarswellOnt 236 (S.C.J.)).

2. Joint custody should only be considered as an option if both parents are fit parents and able to meet the general needs of the children. This is a threshold issue before the court considers the question of whether the parties are able to effectively communicate on issues relating to the children (Kaplanis; T.E.H., at para. 446).

3. The quality of past parenting and decision-making, both during the parties’ relationship and post-separation, is a critical factor in determining whether joint custody is appropriate (Milford. v. Catherwood, 2014 CarswellOnt 7879 (O.C.J.)).

4. However, the mere fact that both parents acknowledge that the other is a “fit” parent does not necessarily mean that it is in the best interests of the child for a joint custody order to issue. The decision regarding the appropriate decision-making arrangement must take into consideration all factors relevant to the child’s best interests (Kaplanis, at para. 10).

5. Although some measure of communication and cooperation between the parties is necessary to support a joint custody order, the court is not required to apply a standard of perfection in assessing the parents’ ability to work together. As Quinn, J. remarked in Brook v. Brook, 2006 12294 (ON SC), [2006] O.J. No. 1514 (Ont. S.C.J.), “the cooperation needed is workable, not blissful; adequate, not perfect.”

6. The fact that one party insists that the parties are unable to communicate with each other is not in and of itself sufficient to rule out the possibility of a joint custody order. The court must carefully consider the parties’ past and current parenting relationship and reach its own conclusions respecting the parties’ ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties (Kaplanis, at para. 11; Ladisa). The existence of some conflict and strife between the parties from time to time, and at the time of trial, will not necessarily preclude the court from making an order for joint custody. The question to be determined is whether the nature, extent and frequency of the conflict between the parties is such that it is impacting or likely to impact on the well-being of the children. If the evidence indicates that the parties, despite their conflict with each other, have been able to shelter the child from the conflict reasonably well and put the child’s interests ahead of their own when necessary, an order for joint custody may be appropriate (Ladisa). The question for the court to determine is “whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis” (Warcop v. Warcop, 2009 6423 (ON SC), 2009 CarswellOnt 782 (S.C.J.); Lambert v. Peachman, 2016 ONSC 7443 (S.C.J.)).

7. Where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, or that one or both of the parties is/are unable to put the needs of the child before their own, joint custody is not an appropriate order (Hildinger v. Carroll, 2004 CarswellOnt 444 (C.A.); Kaplanis; Ladisa). In these circumstances, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for making an order of joint custody (Kaplanis). There must be a clear evidentiary basis for believing that joint custody would be feasible (Iannizzi v Iannizzi, 2010 ONCA 519 (C.A.), at para. 2).

8. In cases involving very young children, the court must take into consideration the fact that the child is unable to easily communicate their physical, emotional, developmental and other needs. Accordingly, the need for effective communication between the parties in a joint custodial arrangement will be particularly pressing in such circumstances (Kaplanis, at para. 11).

9. The wishes of the child will also be relevant to the decision respecting the appropriate custodial disposition in cases involving older children. Although a child’s wishes in such circumstances do not necessarily synchronize perfectly with the child’s best interests, “the older the child, the more an order as to custody requires the co-operation of the child and consideration of the child’s wishes” (Kaplanis, at para. 13).

10. Evidence as to how an interim custody and access order has worked, and in particular, whether the parties have been able to set aside their personal differences and work together in the best interests of the child, will be highly relevant to the ultimate decision regarding the appropriate custodial regime.

11. In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then justify a claim for sole custody in their favour on the basis of lack of cooperation and communication (Lawson; Ursic v. Ursic, 2004 CarswellOnt 8728 (Ont. S.C.J.), aff’d 2006 18349 (ON CA), 2006 CarswellOnt 3335 (C.A.); Andrade v. Kennelly, 2006 CarswellOnt 3762 (Ont. S.C.J.), aff’d 2007 ONCA 898, 2007 CarswellOnt 8271 (C.A.)). Where the parties are both competent and loving parents, but one of them is the major source of the conflict, this factor may support an order for sole custody in favour of the other party (Alqudsi v. Dahmus, 2016 ONCJ 707 (O.C.J.)).

12. There has been an increasing willingness in recent years to order joint custody rather than sole custody where such an order is considered necessary to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties (Habel v. Hagedorn, 2005 ONCJ 242, 2005 CarswellOnt 3863 (O.C.J.); Garrow v. Woycheshen, 2008 ONCJ 686, 2008 CarswellOnt 8193 (O.C.J.); Bromley v. Bromley, 2009 ONCA 355, 2009 CarswellOnt 2210 (Ont. C.A.); R.K.K. v. B.M.M. and R.S., 2009 CarswellYukon 38 (Yuk. S.C.); Hsiung v. Tsioutsioulas, 2011 CarswellOnt 10606 (O.C.J.); Sinclair v. Sinclair, 2013 ONSC 1226 (S.C.J.); Caverley v. Stanley, 2015 ONSC 647 (S.C.J.); Ferreira v. Ferreira, 2015 ONSC 2845 (S.C.J.); T.E.H. ).

[60] While the foregoing comments outline the various factors and considerations which the courts have taken into consideration in deciding between sole and joint custody, the analysis must at all times remain firmly grounded in the best interests of the child before the court. Even if both parents are attentive and loving, a joint custody order may not coincide with the child’s best interests. As Pazaratz, J. stated in Izyuk v. Bilousov, 2011 ONSC 6451, 2011 CarswellOnt 12097 (S.C.J.) at para. 504, “[I]n the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children- particularly children already exposed to the upset of family breakdown- look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.”

[61] In Jackson, I noted that one of the most significant developments in the case-law respecting custody and access in recent years has been the movement towards increasingly detailed and complex “tailor-made” custody and time-sharing orders that are designed to address the unique circumstances and needs of the family before the court. I discussed the various types of decision-making frameworks that have been referred to as “parallel parenting” arrangements, and the general principles that apply when considering whether any such order is appropriate. I rely on my detailed analysis of these principles as set out in Jackson for the purposes of this decision.

III. ANALYSIS OF THE CUSTODY AND ACCESS ISSUES

A. Issue #1: Has There Been a Material Change in Circumstances Since the April 2, 2007 Order was Granted?

[62] There was no dispute between the parties as to whether there has been a material change in circumstances since April 2, 2007. Both parties sought to change the existing order, and therefore they both conceded that the threshold test had been satisfied. It is nonetheless necessary for me to determine whether there have been changes in circumstances since April 2007 which justify a fresh analysis and determination of the custody and access regime that is in Tanner’s best interests.

[63] Upon carefully considering the evidence adduced at trial, I am satisfied that there have been a number of material changes in circumstances that satisfy the threshold test for a Motion to Change custody and access. At this stage, I will provide a general overview of the changes that I find satisfy the threshold test, as the changes are also relevant to the general analysis of Tanner’s best interests which I discuss in detail below.

[64] One major change that has occurred since April 2, 2007 is that the Respondent married Debbie Clyde in 2013. As a result of this development, Tanner has acquired a stepmother and two stepsiblings, Devon and Hunter. He is now part of a blended family when he is in his father’s care. As I will discuss in further detail below, this development has been in many ways beneficial to Tanner. However, it has also brought some challenges. Tanner has expressed concerns that his father and stepmother give his stepsiblings preferential treatment over him when he is at his father’s home, and that the Respondent sides with his stepmother and stepsiblings when disagreements arise. The Respondent’s remarriage has also contributed to difficulties in the relationship between the Applicant and the Respondent. One of the concerns that the Applicant has raised is that when the Respondent married Debbie Clyde, he began to exclude her from decision-making about Tanner and began instead to make decisions in consultation with his wife. The Applicant alleges that the Respondent and Mrs. Clyde have also breached the existing court order many times for the sake of their own family’s interests. As I discuss in further detail below, these concerns of the Applicant are well founded, and they highlight a second material change in circumstances that has occurred since April 2007. The Respondent has breached many terms of the April 2, 2007 order, including the requirement that the parties make major decisions about Tanner jointly, the provision requiring him to contact the Applicant if Tanner suffers an injury, the right of first refusal clause requiring the parties to offer each other time with Tanner if they are unable to be with him during their time, the term respecting the Applicant’s right to a birthday visit with Tanner each year.

[65] The dynamics outlined above, along with other factors, have led to serious and persistent conflict between the parties since April 2007. Unfortunately, this conflict has negatively impacted the parties’ parenting of Tanner. Their relationship has regressed to the point that they are now unable to discuss and decide even simple day-to-day matters relating to Tanner in a calm, responsible and effective manner. The deterioration in the parties’ relationship and their ability to co-parent Tanner is another material change in circumstances that has transpired since 2007. This is not a situation in which there has simply been a perpetuation of serious parental conflict and lack of cooperation that existed when the current order was made. The change in the quality of the parties’ working relationship in regard to issues involving Tanner has been marked and persistent.

[66] With respect to the period prior to the April 2, 2007 order, there were clearly difficulties in the parties’ relationship that led to their separation in 2005. In addition, they had disagreements respecting Tanner that caused the Applicant to commence the original court proceedings in this matter. Notwithstanding these difficulties, I find that by April 2007, the parties were generally able to work through important issues respecting Tanner in a reasonable and productive manner. This state of affairs continued for several years until 2014. The parties agreed to and implemented the arrangement for shared time with Tanner which was eventually incorporated into the April 2, 2007 and which continued until August 20, 2015. As I will discuss in further detail below, Tanner has many special medical needs, and the parties were able to work effectively together to explore assessment and treatment options for him and to implement the recommendations of health care professionals. Tanner also experienced challenges when he began to attend school, and the parties worked cooperatively with each other and educational professionals to address those difficulties and support Tanner with respect to his educational needs. When Tanner completed grade 1 at Huntington Park Public School, the parties agreed that he should repeat grade one, and that he should transfer to C.B. Stirling to complete his grade 1 year because of behavioural issues that he was exhibiting at Huntington Park. The Applicant and Respondent were also able to address child support issues that arose in an amicable and effective manner. As I will detail in greater depth below, they varied the child support terms of the April 2, 2007 order on consent on August 10, 2011, when the Respondent was laid off work for a period of time. The Respondent then made voluntary upward adjustments to his child support payments once he resumed work on a full time basis. The Applicant experienced numerous gaps in her employment after 2007 due to health and other personal challenges, and I find that the Respondent responded reasonably and with sensitivity to these challenges by covering most of Tanner’s extracurricular expenses. The Respondent testified that he even purchased Christmas presents for the Applicant to give to Tanner when she was financially unable to purchase gifts for him. In short, although the parties experienced some challenges in managing issues respecting Tanner in the past, they were generally able to co-parent Tanner in a reasonably cooperative, responsible and effective manner until 2014. The generally cooperative nature of their parenting relationship is reflected in an occurrence report dated September 3, 2014, relating to a dispute which they had at that time regarding Tanner’s school. In that report, P.C. Laka noted that up until that time, the parties had been “amicable towards each other regarding custody of Tanner.”

[67] The nature of the parties’ parenting relationship changed drastically commencing in the summer of 2014. As I will detail below, the Applicant and Respondent have clashed repeatedly since that time on issues relating to all major areas of Tanner’s well-being. There has been a plethora of litigation between them since that time due to their conflicts respecting their son. The police have become involved with them and Tanner on numerous occasions since then to respond to parenting disputes and concerns and to de-escalate high conflict family situations. The discord between the parties has often occurred in Tanner’s presence, and this has caused the Society to intervene due to concerns about emotional harm to Tanner as a result of exposure to parental conflict. Unfortunately, the discord between the parties had not abated by the time this case came on for trial before me.

B. Issue #2: What Custodial and Time-Sharing Arrangements Are in Tanner’s Best Interests?

1. Overview

[68] Having concluded that there have been material changes in circumstances since April 2007 that have affected Tanner’s best interests, it is necessary to determine whether it is appropriate to alter the custody and access terms of the April 2, 2007 order. As I have indicated, the equal time-sharing arrangement was varied on a temporary basis by Pazaratz, J. on August 20, 2015, with the result that Tanner has been in the primary care of his father for almost 22 months. The joint custody term of the April 2, 2007 order has remained in effect.

[69] Upon carefully considering all of the evidence and Tanner’s comments during my interview with him, I have concluded that the existing custody and residential arrangements are not serving Tanner’s needs and are not in his best interests. With respect to custody, it is abundantly clear that joint custody is no longer a feasible option, given the intense conflict that has developed between the parties and which shows no signs of waning. Having carefully weighed the evidence and considered the various alternatives to a straight joint custody arrangement, I have determined that a sole custody order in favour of the Applicant is in Tanner’s best interests.

[70] With respect to time-sharing, for the reasons that follow, I have concluded that the equal time-sharing arrangement that was in effect as of the commencement of these proceedings should be reinstated. However, the specifics of the regular time-sharing arrangement need to be clarified in order to minimize the potential for further conflict between the parties. I conclude that it is also in Tanner’s best interests to set clear dates for the parties’ respective summer vacation periods, with Tanner’s birthday falling clearly within the Applicant’s vacation period. In addition, I am ordering changes to paragraphs 6 and 7 of the April 4, 2007 order to make the right of first refusal provision more realistic and manageable given Tanner’s current age and circumstances.

[71] I turn now to the main factual findings and considerations that have informed my decisions on the custody and time-sharing issues. My discussion of these various findings and considerations is followed by a more detailed analysis of my reasons in support of the custody and time-sharing regime that I have ordered.

2. Description of Tanner and His Special Needs

[72] Both parties and all of the witnesses who testified at trial described Tanner’s personality and his special needs. I was also able to acquire a sense of Tanner’s general character as a result of my judicial interview with him. By all accounts, and my observations, Tanner is a pleasant, engaging and very social young man. He is generally polite, and has not exhibited any seriously challenging behaviour with either the Applicant or the Respondent and his wife. I find that he has many friends and enjoys various sports and activities, including hockey, soccer, swimming, baseball and scootering. He has played house league hockey for many years.

[73] Unfortunately, Tanner has several medical and educational challenges. He has weathered these difficulties very bravely over the years. He was extremely small when he was born and had extreme difficulty feeding. The parties took him to numerous medical professionals in an attempt to determine the cause of his eating difficulties, and Tanner was eventually referred to McMaster Children’s Hospital for assessment and treatment. He continued to have serious feeding issues and there were concerns that he was failing to thrive. He was eventually surgically fitted with a permanent feeding tube as a result of these concerns. Numerous professionals were involved in monitoring and supporting Tanner and the parties in addressing Tanner’s medical challenges, including nutritionists and occupational therapists. The feeding problems persisted, and therefore the parties began to search for additional medical input. The Respondent’s sister located a specialist in childhood eating disorders, Dr. Ramsay, in Montreal, and the parties took Tanner to see her in approximately 2008 or 2009. Dr. Ramsay diagnosed Tanner as suffering from slow gastric emptying. She provided instruction about how to manage Tanner’s eating challenges, and eventually the feeding tube was removed. Tanner is prescribed domperidone for his stomach condition. Unfortunately, he has suffered long term effects from the feeding problems that he experienced in his early years. He is very small in stature and is significantly delayed in his growth. As a result of these concerns, he was prescribed a human growth hormone medication, humatrope, in approximately 2012, which he has to inject with a needle daily.

[74] Tanner also experienced difficulties with respect to focus and performance when he began school. He was eventually diagnosed as suffering from Attention Deficit Hyperactivity Disorder (“ADHD”), and is prescribed risperidone for this condition. Tanner’s primary physician is Dr. Conner. In March 2012, Dr. Conner noted that Tanner likely also suffers from a Learning Disability. In early 2013, the Applicant began to have concerns that Tanner was showing signs consistent with Tourette’s Syndrome. She therefore brought Tanner to Dr. Conner for assessment, and Dr. Conner concluded in February 2013 that Tanner does indeed suffer from a degree of Tourette’s Syndrome. The Applicant and her friend who testified at trial, Sandra Gibson, indicated that Tanner’s Tourette’s symptoms arise when he is worried or stressed.

[75] Tanner’s medical challenges have impacted on his functioning at school. As noted above, he began to experience difficulties with focus and performance in school from a young age. His teachers also had difficulty managing his behaviour. As I have indicated, he repeated grade 1 due to his struggles, and the parties switched him from Huntington Park Elementary School to C.B. Stirling with the hope that he could receive appropriate support in a new setting. He underwent psycho-educational testing and was placed on an Individual Education Plan due to his special needs. Several of Tanner’s report cards from November 2014, when he was in grade 4, until November 2016, when he was in grade 7, were admitted into evidence. In addition, I heard evidence from his grade 5 teacher, Mr. Trevor Ayre, and his Kumon instructor, Ms. Sunita Chawla. Based on this evidence I find that Tanner has struggled to achieve the basic performance expectations of even his modified curriculum program in most of his courses. His teachers have often noted that many of his Learning Skills need improvement. He has great difficulty focussing in class, organizing his school materials and other belongings, and maintaining a tidy work area. He requires regular reminders to stay on task and complete his work. In addition, his teachers have noted serious concerns regarding his interest in school and initiative. He has also had major and consistent problems completing homework and assignments. As a result of these challenges on the school front, the Respondent decided to enroll Tanner in Kumon in July 2012. He began with the Reading Program, which he continued until August 2014. His Kumon instructor, Ms. Chawla, testified that Tanner was significantly delayed in his reading as of July 2012, and that she had to do extensive foundational work with him to bring him up to grade level. Her opinion was that he was very close to grade level when he finished the Reading Program in August 2014. However, Tanner’s grade 5 teacher testified that as of January 2015, Tanner was only at a grade 2 or 3 level in both Mathematics and Language. Tanner began the Kumon Mathematics program in August 2014, and continues to be enrolled in that program. However, his June 27, 2016 report card from the end of grade 6 indicated that he only achieved a C+ in Number Sense and Numeration, even based on the expectations of his modified IEP curriculum. Furthermore, his November 2, 2016 report card from grade 7 indicated that as of that time, he was “progressing with difficulty” in Mathematics.

[76] Tanner is a very special and impressive young man. He has demonstrated incredible resiliency in the face of his many challenges. He is doing well socially, and as I have stated, he has not had any significant behavioural difficulties either at home or in the community.

3. The Parties’ Attention and Sensitivity to Tanner’s Views, Preferences and Perspectives

[77] In reaching my decision respecting the custody and access issues in this case, I have taken into consideration the parties’ sensitivity and attention to Tanner’s views, preferences and perspectives regarding his life and family situation. In this regard, I note that the Respondent did not focus to any considerable extent on Tanner’s wishes and concerns during his testimony. The Applicant questioned him during cross examination about the fact that he did not in his evidence or any of the numerous affidavits that he filed in this proceeding talk at any point about Tanner’s voice and wishes. The Respondent acknowledged that he had not. When the Applicant questioned him about why this was the case, his only response was “I didn’t feel it was necessary.” This response highlighted a general theme that ran through the Respondent’s evidence that he does not place any great value on seeking out Tanner’s perspectives and weaving them into the analysis and determination of important issues relating to him.

[78] By contrast, the Applicant spent a great deal of time during her examination in chief discussing the importance of listening to Tanner’s voice, acknowledging his feelings, wishes and perspectives, and attempting to respond to them in an appropriate manner. It is clear that she places great importance on allowing Tanner to express his thoughts and wishes openly, and that she attempts to respect them when it is reasonable to do so. On a number of occasions, she relayed her strong belief that parents need to teach their children that they are their own person with their own feelings, and that their voice should be given due consideration.

[79] Two major examples highlight the Applicant’s concern for ensuring that Tanner’s voice is heard and given appropriate weight. The first relates to the choice of Tanner’s school in September 2014. As I will discuss in further detail below in the context of my analysis of the conflict between the parties, a significant dispute arose during the summer of 2014 about where Tanner would attend school commencing September 2014 for his grade 5 year. Tanner had been attending C.B. Stirling since grade 1, but school staff had advised the Respondent in June 2014 that Tanner could no longer attend because neither party resided in the school’s catchment area. The parties had several discussions over the summer about where Tanner should attend. In the end, the Respondent unilaterally registered Tanner at Lynden Park on the first day of school, without obtaining the prior consent of the Applicant. Lynden Park is the school that is located in the Respondent’s neighbourhood. There is no evidence that the Respondent gave any significant consideration to Tanner’s views and preferences before making this major decision. By contrast, the Applicant opposed Tanner’s registration at Lynden Park, largely on the basis of Tanner’s wish to remain at C.B. Stirling. As I have already noted, she brought an urgent motion on September 3, 2014, seeking assistance from the court to allow Tanner to remain at C.B. Stirling.

[80] The Respondent attempted to persuade me that the Applicant placed too much weight on Tanner’s wishes with respect to the choice of school in the fall of 2014, and that Lynden Park was a much better option for Tanner having regard for the resources that it offers for children with special needs. However, in making this argument, he attempted to adduce hearsay statements that the principal of Lynden Park made to him during a meeting that he had with the principal in September 2014. He did not adduce any direct evidence from staff at Lynden Park or the school board about the various resources that Lynden Park allegedly has to offer over C.B. Stirling. I did hear evidence from Mr. Trevor Ayre, Tanner’s grade 5 teacher, about his views regarding the deficits of C.B. Stirling in regard to resources for special needs children. He testified that the student population of C.B. Stirling consists largely of children with behavioural problems. In addition, he suggested that the school had a serious shortage of competent Educational Assistants in comparison with the student population. He also insisted at trial that Tanner did not have an Educational Assistant to support him while he attended C.B. Stirling. I did not find Mr. Ayre’s evidence reliable on the issue of available supports to special needs children and to Tanner in particular. I conclude based on the evidence of the Applicant, the information provided to me by Tanner, and the child’s final grade 6 report card that he did in fact have an Educational Assistant assigned to him at C.B. Stirling, and that he benefitted greatly from the support of this professional. His Educational Assistant both prior to and during his grade 5 year was Ms. Albert. A letter which Mr. Ayre wrote dated January 13, 2015 indicated that Tanner met regularly with a Learning Resource teacher in grade 5 to obtain additional assistance and support. When I asked Tanner to identify the people who are the most helpful to him, he listed his mother, his father, his teacher and his Educational Assistant at C.B. Stirling at the time, Miss Hoy, who he described as being very nice. Tanner’s grade 6 report card dated June 27, 2016 indicates that Tanner had an Educational Assistant who he called on regularly for assistance in class, and that the school had also provided him with a stability ball and ergo chair which had assisted him greatly with focus and concentration. It is possible that there were some difficulties with the availability of competent and experienced Educational Assistants during Tanner’s grade 5 year. However, I find that if this problem existed, it was short-lived. In terms of the general academic support that has been available to Tanner at C.B. Stirling, I was impressed with Mr. Ayre’s evidence that he regularly stayed late after school to assist Tanner and other students who were struggling with their coursework. Moreover, with respect to the evidence that C.B. Stirling is known to service many students who have behavioural challenges, I find that one of the very reasons why Tanner was moved from Huntington Park to C.B. Stirling after his initial grade one year was that he was exhibiting behavioural problems at school, and the principal and the parties all felt that C.B. Stirling would be a more suitable environment for him based on his special needs and his behavioural profile. Having carefully considered all of the evidence, I conclude that C.B. Stirling had and continues to have appropriate resources and supports for Tanner. Moreover, I find that the Applicant’s appreciation of and focus on Tanner’s views and preferences regarding the choice of school in the fall of 2014 was very appropriate in the circumstances. Tanner has many challenges, and adding a change of school and the loss of his peer support group to these difficulties would have been very hard on him. The choice of C.B. Stirling provided Tanner with the added benefit of ensuring a sense of consistency and stability both socially and academically.

[81] The second example that demonstrates the difference in the parties’ attention to Tanner’s perspectives and concerns relates to his enrolment in the Kumon program. As I have stated, Tanner has been enrolled in this program since July 2012. The Applicant alleged that she never consented to his enrolment in advance, but acknowledged that she agreed to allow Tanner to attend for a period of time to see if he could benefit from additional support from Ms. Chawla. The Respondent denied that he enrolled Tanner without consulting with the Applicant, and insisted that he and the Applicant both met with the Kumon Director, Ms. Chawla, to discuss the program before they made the decision to enroll him. I accept the Applicant’s evidence over that of the Respondent on this issue. She had a very clear recollection of being taken aback one day when she picked Tanner up from his father’s house and the Respondent asked her to take Tanner to Kumon. She was credible in her description of her confusion about what Kumon was, and her annoyance that the Respondent enrolled Tanner without her input and consent. Furthermore, the Respondent indicated in his affidavit sworn September 19, 2014 that he and his wife Debbie Clyde enrolled Tanner in the program. In addition, Ms. Chawla testified that she has no recollection of meeting or talking with the Applicant before the Respondent enrolled Tanner in Kumon.

[82] It is clear from the evidence of both parties, and from my discussions with Tanner, that Tanner is very unhappy about attending Kumon and having to do additional Kumon homework every week night after school. He has advised both of his parents that he feels that Kumon classes and homework are too onerous for him after a full day of school, and that he does not feel that the work he is doing in Kumon relates in any way to the issues that he is working on in school. In short, he has repeatedly emphasized to his parents that he does not feel that Kumon is helping him at all. Despite these expressions of concern from Tanner, the Respondent has persisted in keeping Tanner enrolled in the program. As indicated earlier in these Reasons, the Respondent eventually brought a motion in April 2015 to obtain an order requiring the Applicant to take Tanner to Kumon and ensure that he completes his Kumon lessons. By contrast, the Applicant has given much more consideration to Tanner’s expressed concerns and frustrations with Kumon. I find that she eventually revoked her consent to Tanner’s participation in Kumon in August 2014, but that the Respondent ignored her position, maintained Tanner’s enrolment and kept taking him to the program over the Applicant’s objections. In addition, the Respondent pressured the Applicant to require Tanner to continue with his nightly Kumon exercises during her time with Tanner.

[83] The Respondent attempted to persuade me that the Applicant’s opposition to Tanner’s ongoing enrolment in Kumon was based entirely on Tanner’s wishes and her objection to contributing to the cost of the program. He argued once again that the Applicant placed too much weight on Tanner’s perspectives and concerns, and that Tanner’s participation in the program has and continues to be critical to his educational progress and success. I do not agree with the Respondent on these points, and I find that the Applicant was justified in paying attention to Tanner’s concerns and responding to them. Dealing first with the reasons for the Applicant’s objection to Kumon, I find that her decision to revoke her consent was based on her genuine belief that the program was not assisting Tanner with his school progress, and that the additional burden that the program was placing on Tanner was causing him considerable frustration and distress. In short, I find that she attentively listened to Tanner’s views and concerns, was sensitive to her child’s feelings, carefully considered whether the program was benefitting Tanner, and concluded that it was in Tanner’s best interests to terminate his enrolment. I note that Tanner strongly voiced his opposition to attending the program from the start in July 2012. Nonetheless, the Applicant consistently required him to attend lessons and complete his Kumon homework during her time with him for two years, until approximately August 2014. This is not the behaviour of a parent who blindly tows the line in accordance with the views that a child is expressing.

[84] Ms. Chawla’s evidence supported my finding regarding the rationale for the Applicant’s withdrawal of support for Kumon in the summer of 2014. She testified that the Applicant called her during the summer of 2014, when Tanner was being switched to the Mathematics program, to advise her that she wanted to end Tanner’s enrolment because she did not feel that the program was assisting Tanner with his school progress. Moreover, the evidence does not support the Respondent’s allegation that the Applicant began to resist Kumon because he asked her to contribute to the cost of the program. The Applicant strenuously voiced her objection to Tanner’s involvement during the summer of 2014, and I find that the Respondent did not suggest that she should contribute to the cost of Kumon until sometime in late 2014, after the commencement of these proceedings.

[85] With respect to the Respondent’s criticism that the Applicant relied too heavily on Tanner’s wishes and failed to give sufficient consideration to the benefits of Kumon, I conclude that the Applicant in fact had very sound reasons as of August 2014 for questioning whether Tanner’s ongoing involvement in the program was in his best interests. I recognize that Brown, J. made an order on motion by the Respondent on April 2, 2015 requiring the Applicant to take Tanner to Kumon and ensure that he completes his Kumon lessons. She concluded at that time that this order was in Tanner’s best interests based on the limited evidence before her on the motion. However, she did not have the benefit of hearing full evidence and cross examination on the issues relevant to the Kumon question, or of reviewing Tanner’s report cards that were filed as Exhibits at trial. I recognize that the Applicant has breached Brown, J.’s order respecting Kumon. Her violation of this order cannot be condoned. She should have complied. During the course of these proceedings since March 2015, a great deal of emphasis has justifiably been placed on her blatant breach of this order. What has not been given equal emphasis, however, is the fact that the parties have had joint custody since April 2, 2007, that the Respondent brazenly breached this joint custody order when he enrolled Tanner in Kumon without the Applicant’s consent in July 2012, and that he blatantly breached it again when he forced Tanner to continue attending in August 2014 over the Applicant’s clear objections.

[86] Notwithstanding that the Respondent excluded the Applicant from the decision to enroll Tanner in 2012, the Applicant acted reasonably by diligently taking Tanner for two years. I find that she and Tanner gave Kumon a whole-hearted try. However, taking into consideration all relevant factors, including Tanner’s educational, emotional and social needs, I conclude that the Applicant’s opposition to Tanner continuing in the program was well founded. As I have discussed, Tanner has very significant special needs. It was apparent from his report cards and from Mr. Ayre’s evidence that school is a major struggle for him. It takes a great deal of effort and work for him on a daily basis in class to concentrate, remain focussed and complete his work. His report cards consistently reveal the challenges that he experiences in these areas. He has attended additional sessions with his teachers, including after school sessions, in an attempt to keep up with even the modified curriculum that has been implemented for him. As I have already noted, Tanner has indicated to his mother, and clearly told me, that he finds the additional burden of attending Kumon twice a week and completing extra Kumon work nightly to be exhausting. This is completely understandable, having regard for the daily struggles that he experiences at school. The parties and Tanner have all relayed that the additional lessons take anywhere from 15 minutes to over an hour for Tanner to complete each night, depending on the complexity of the topic that Tanner and Ms. Chawla are working on. While the completion of additional educational exercises may at first blush seem to be a sensible idea for a child who is struggling in school, the difficulty is that Tanner has throughout his school history had a serious problem completing his school homework and assignments. Mr. Ayre noted in Tanner’s report card from February 2015 that due to Tanner’s very low completion of in-class work, homework and assignments, it was difficult to effectively evaluate his abilities. He further stated in this report card that “Tanner must make a more concerted effort towards completing his work. It is the only way he is ever going to really improve his skills.” The concerns regarding Tanner’s completion of homework and assignments persisted after grade 5. His grade 6 report card indicates that he had significant ongoing issues with task completion, and his November 2, 2016 report card from grade 7 showed that he was still neglecting to complete homework and assignments or handing them in late.

[87] As I have indicated, another concern that Tanner has consistently voiced is that he is working on completely different issues and tasks in Kumon than in his school class. Ms. Chawla acknowledged in her testimony that this was the case. She explained that the reason for this is that Kumon focusses on ensuring that the student fully grasps basic foundational principles of the subject area, so that they will be better equipped to completely understand issues as the work becomes increasingly complex. While this approach certainly makes a great deal of sense, there is no evidence that the manner in which the foundational concepts were taught to Tanner through Kumon were similar to the methods used in the regular school curriculum. Furthermore, there is no evidence that efforts were made to help Tanner to apply the basic foundational concepts that he was learning through Kumon to the actual work that he was assigned in school. In fact, I find that Tanner has spent a considerable amount of time each week night completing his Kumon work, while falling further and further behind in terms of his actual school work.

[88] I heard evidence from Ms. Chawla and Mr. Ayre that the assistance that Tanner received through Kumon has assisted him greatly with his progress in Language and Math. I have no doubt that on a general level, Kumon has been of great assistance to Tanner in these subjects. However, the evidence does not satisfy me that it has assisted Tanner significantly in meeting the expectations of the school board curriculum. The evidence raised serious concerns regarding the degree of synchronicity between the course content of the Kumon program and the school board curriculum. This point is demonstrated by the evidence that I heard from Ms. Chawla regarding Tanner’s level of achievement in Language by August 2014, as compared to Mr. Ayre’s comments about Tanner’s level of achievement in a letter dated January 13, 2015. As I have already noted, Ms. Chawla testified that according to the measures used by the Kumon program, Tanner was only slightly shy of achieving his appropriate grade level by August 2014. However, Mr. Ayre’s opinion as of January 13, 2015, Tanner’s grade 5 year, was that Tanner had only achieved a grade 2/3 level in Language by that time based on the school board criteria and guidelines.

[89] I note that Mr. Ayre indicated in his January 13, 2015 letter that Tanner was attending Kumon several times a week at that time to build basic reading, writing and Math skills, and opined that this intervention was “vital to ensure that Tanner succeed academically to the best of his abilities, which have shown improvement.” In fact, Tanner was only attending the Math program twice per week at that point, and was not engaged in the Kumon Language program. This raises questions as to the extent to which Mr. Ayre informed himself about the nature of Tanner’s involvement with Kumon and the extent to which the program was truly helping him. I note as well that a careful review of the report cards that the Respondent tendered as evidence does not reflect any meaningful and consistent progress over the years in the areas of Language and Math according to the school board criteria. Although Mr. Ayre testified that he felt Tanner improved in Math as a result of Kumon and the extra help that Tanner was receiving in grade 5, this observation was certainly not noted in the report card that he completed for Tanner dated February 2, 2015. Tanner’s marks as of February 2015 were still very troubling, and as I have already stated, Mr. Ayre indicated in that report card that he could not accurately gauge Tanner’s progress due to his failure to complete his school work. Interestingly, the Respondent did not provide a copy of Tanner’s final report card for grade 5, which would have provided a more accurate reflection of his overall progress in that year. Tanner’s marks showed some improvement in grade 6. However, his November 2, 2016