I. Introduction

[1] On September 24, 2013, the Applicant Mother moved to change the Order of April 6, 2011, requesting that she have sole custody of the child Benjamin Williams-Young, born January 27, 2008, herein after referred to as “Ben”, and that the Respondent Father have access to the child alternate weekends with pick up at her current address in Barrie, Ontario; that the Respondent Father pay s. 7 daycare expenses; and a police enforcement clause.

[2] In his Response dated November 11. 2013, the Respondent Father requested an Order granting him sole custody of Ben, and residency of the child; that the Applicant Mother have access to the child, alternating weekends; access exchange to take place at the Newmarket Police Station; terminating his obligation to pay child support and seeking child support from the Applicant Mother. In addition, the Respondent Father also proceeded with the remaining issues of the Motion for Contempt pursuant to the endorsement of Justice J. McDermot dated June 05, 2014, and Justice J. McCarthy dated January 30, 2013, wherein the determination of Costs of the 2013 Motion to Change was adjourned to the trial of the issues; as well as the set off of $1500 remaining from paragraph 13 of the 2011 Order.

II. Issues for determination

Has there been a material change in circumstances since the Order of April 6, 2011, as amended by the Orders of January 31, 2013, and June 5, 2014;
If there has been a material change in circumstances, is joint custody appropriate in this case;
If not, and if sole custody is appropriate in this case, who should have custody of Ben;
What child support should be paid going forward; and what are the arrears of child support , if any;
Should the $1500 be set off against any retroactive child support, if at all;
What should be paid for s.7 expenses; and,
Is the Applicant in contempt of Court?

III. Background

[3] The Applicant Mother and Respondent Father of the child, Ben, now almost 9, are relatively young parents. The Applicant Mother being 30 years old at the time of trial and the Respondent Father being 31 years old at the time of trial.

[4] They commenced cohabitation in April of 2007 and separated shortly after the child’s birth on March 27, 2008. Their relationship was tumultuous. The Applicant assaulted the Respondent Father, but, the Respondent Father did not lay charges against the Applicant Mother. When the Applicant Mother alleged that the Respondent Father assaulted her, he was in fact charged, plead guilty to the offence and received a conditional discharge. Since that time, the parties have mistrusted one another. This ongoing mistrust has exacerbated their parenting conflict.

[5] At trial, the Applicant Mother lived and worked in Barrie, Ontario as a paralegal. Prior to her employment as a paralegal, as an ambitious mother, she was employed at two jobs or attending school. She was scheduled to take her paralegal exams in the latter part of the summer, 2016. At trial, there was no confirmation of her accreditation as a paralegal by the Law Society; however, I have no doubt that she will succeed in that pursuit.

[6] The Applicant Mother has four children: Ben, 8; Aadyn, 6; Kaylyn 5; and Jaxyn who is 2 years old. Each of the children has a different father, but, all the children reside with the Applicant Mother. Each of her three former partners has access to their respective child, either by court Order or agreement. At the time of trial each of her former partners enjoyed joint custody of their respective child with varying degrees of decision making. Her current partner and the father of her youngest child is a computer technician who works out of her residence, a 4 bedroom home on a cul-de-sac in the City of Barrie. The fiancé, Mr. Marceau, is 42, a first time father and is significantly involved in the parenting of all four children.

[7] The Respondent Father moved to North York from Barrie well before the parties’ 2011 Order; and, lives at Jane and Finch. He works as a security liaison at York University and lives with his wife and stepson. He has had stability of residence, stability of relationship and stability of employment for the past 5.5 years. He has family support from his maternal aunt and uncle, but, is somewhat estranged from his mother and father. Both the child’s paternal grandparents and the paternal aunt and uncle have an excellent relationship with Ben.

IV. The Applicant Mother’s Evidence of a Material Change in Circumstances

[8] Central to the Applicant Mother’s evidence of the existence of a material change in circumstances affecting Ben, are her allegations cited in her Motion to Change and her viva voce evidence at trial that: the Respondent Father was a poor communicator; the Respondent Father was inflexible; there were difficulties at exchanges; he removed Ben from school; the Respondent Father refused to bring Ben home; he failed to exercise access or was late in access to Ben; he missed summer access and he failed to provide the Applicant Mother with his actual address.

A. Communication

[9] The Applicant Mother repeatedly commented that the Respondent Father was a person with whom it was difficult to communicate. Yet, a review of the two volumes of produced emails, starting with Sunday, May 22, 2011, clearly indicated that the parties were capable of having civil and productive e-mail exchanges. For example:

(1) From: Scott Young; Date: Sun, 22 May 2011, 11:08:53 to: Shannon Williams

Subject: Change in Access Schedule

This is to advise you that I will be invoking Article 18 of the current court order…

I have been requested to change rotations and I have accepted. I am waiting on a final date as to when it happens, and will let you know when the switch is happening when I find out.”

(2) May 22, 2011, 11:49 Applicant Mother, Shannon wrote:

Scott,

That’s fine thank you for telling me, just make sure you give me enough notice. As well, I looked at the court agreement and just wondering if you forgot that this weekend you were supposed to have Ben because it was Victoria Day weekend.

Shannon

[10] Although no date or time is indicated, Exhibit 2, Tab 3, continues this e-mail discussion where the Respondent Father replies:

You are correct, I did indeed forget. I didn’t realize until I received your email, and by that time, the weekend was over. I have inputted all the weekends into my calendar so this mistake will not be repeated.

Please accept my most sincerest apologies.

I am also still waiting to hear of a confirmation date as to when I change my schedule. As previously stated, I will let you know as soon as I find out.

[11] For the most part, in 2012, the parties communicated civilly and attempted to be accommodating to one another. However, in the Summer of 2012, the string of emails identified the emerging problem – the Applicant Mother’s moves and her access to a functioning vehicle.

[12] Even so, the parties produced email discussions in a more conciliatory tone and changes were made to access for the summer in consideration of Ben’s interests, including the pick up or drop off the child by Aunt Jutras.

[13] On several occasions in 2012, the parties attempted to cooperate and brainstorm a solution. While brainstorming, the Respondent Father did not get any access to Ben in September of 2012.

[14] It should be noted that the Applicant Mother agreed on January 31, 2013, that she was in breach of the April 6, 2011 order by not providing the Respondent Father with specific access. As such, she agreed to the Respondent Father’s making up his lost 35 days. At no time at the hearing on January 31, 2013, was there any indication that changes to the consent Order would be required because the Applicant Mother was changing jobs and/ or residence, having just moved to Hillsburgh/Erin. Within 2 weeks of the Consent Order of January 31, 2013, changing the drop off locale, the Applicant Mother indicated and dictated the locus and time for pick up and drop off:

My work schedule has been changed effective next week, I’m hoping it’s temporary but at this point im unclear. So for Friday the 22nd I will need to meet you at 2:30 at the latest in Brampton or I cannot drop Ben off there. As for Sunday, I would need to meet by 2:30 at the latest there as well, however if you get him earlier on the Friday bringing him home early Sunday balances out.

[15] Within 10 weeks of the January 31, 2013 Order, on April 17, 2013, the Applicant Mother advised the Respondent Father, in her email readjusting access, that she no longer lived in Hillsburgh and requested the access meetings to occur in Newmarket. To which changed locale, the Respondent Father agreed. And, while discussing access on April 17, 2013 at 9:33 p.m., she advised: “Also I forgot to mention that I will be enrolling him in catholic school (my emphasis) in Barrie. I will get you the school information by Monday at the latest.” With respect to adjustments to access and pickups, the parties continued to cooperate through May 2013, until the Respondent Father addressed the Applicant Mother’s intended change of schooling on May 19, 2013 as follows:

No. I was not consulted. I was informed. I told you more than a year ago that I didn’t want him going to a catholic school. And after picking him up, I realized that there is a public school less than a 10 minute walk (I have made that walk many times). So why is he going there? Because had you consulted me, I would of reiterated what I told you last February.

[16] To which the Applicant Mother responded as follows:

You actually told me you wanted him going to a catholic school. And if you knew anything about the area you would know the public school in the area is absolutely horrible and St.Marys is an amazing school. (my emphasis)

[17] It should be noted that in 2012, the parties discussed the issue of Catholic schools for Ben via email. The Applicant Mother, a non-practicing Catholic, stated that she did not want to confuse the child and had no intention of registering him in a Catholic school. This is stated during the period when the Applicant Mother was moving from Barrie to Oro with her partner, Tom Eves. In cross-examination, the Applicant Mother indicated that she forgot about this 2012 string of emails and her past representation to the Respondent Father that she would not register the child in a Catholic school.

[18] By July 2013, summer access once again became problematic when the Applicant Mother once again advised that she was unable to drive Ben to Newmarket, and the Respondent Father was aware of the Applicant Mother’s new move and that Mr. Marceau was living with her. Intermittently, she advised that she had vehicle constraints for the exchanges. Nevertheless, the email strings during August 2013 reflected a remarkable ability to accommodate one another’s travel issues, until August 24, 2013, when Scott wrote: “Just to advise you that I cannot bring Ben to Barrie on Monday so you are going to have to come down to get him for the exchange time.” Repeating the inability of her car to make the drive, ultimately the Applicant threatened the intervention of the police.

[19] By August 26, 2013, the Applicant Mother put the Respondent Father on Notice that:

As it seems to be unclear I am writing you a formal email to advise you that the Newmarket arrangement we came up with no longer works for me. (my emphasis)

I will be returning to our original court agreement in the meantime. In case you don’t have access to it, it states that pick up and drop off is at 175-67 Stanley St. In Barrie, On. At the end of the driveway. As well, I have stated my work hours have changed but in case you have forgotten. I work 9-5 now, so 11 am pickups and drops offs no longer work for me. I will have to change it to 6pm.

[20] And when the Respondent Father replied that he will pick Ben up from school on Friday, the Applicant Mother disagreed. As well, when the Respondent Father indicated that he was without a vehicle, and to avoid public transport of the child to and from Barrie, he proposed a return to Newmarket for pick up and drop off, the Applicant Mother disagreed, such that the Father alleged that she was voluntarily withholding access.

[21] This disagreement as to the venue for the pick-up and drop off was one of the reasons why the Applicant Mother moved to change on September 24, 2013. Her trial evidence and productions indicated that:

(a) With respect to communication, both parties were equally cooperative with one another and equally inflexible in their positions. Each threatened the other with police intervention and further legal action. Unfortunately, after, January 30, 2013, when either refused to adjust the timing of the pick up or drop off schedule, or the locale of the pick up or drop off, access would not occur and Ben suffered as a result. In fact, because the Respondent Father would not accede to the Applicant Mother’s demand for the locale and timing of the exchanges, the Applicant Mother prevented the child from having access to his Father for an acknowledged period of 6 – 8 months in 2013. At times, the genesis of the problem with pick up or drop off was the fact that the Respondent Father did not have a vehicle and had to rely on his Aunt or other family members for the pick up or drop off; or, public transportation. Often, the Respondent Father’s reliance on other family member’s transportation resulted in unnecessary conflict between the Applicant Mother and, in particular, his aunt, Ms. Jutras, who often facilitated the access and transportation. On many occasions, after the January 30, 2013 Order, it was the Applicant Mother who refused to drive Ben for the drop off or pick up because she alleged that she did not have a reliable vehicle, or changed jobs, or changed location of her residences.

(b) Further complicating the communication between the parties after January 30, 2013, was the fact that the Applicant Mother had to make parenting decisions not only for Ben, but for her other 3 children. Her decision to move the children and herself was further impacted by her fourth pregnancy and her engagement to her fourth partner, Mr. Marceau. The evidence confirms the relocations and the changes in school for Ben were determined by the Applicant Mother, with limited consultation with Ben’s father or school authorities. The bases for her determination of residence changes or school changes were primarily for her convenience and that of her family, and not specifically for the benefit of Ben. Her parenting of four children, her inability to give Ben the individual attention he craved, her rapid introduction of new partners, the school changes and the residency changes, all affected Ben deeply.

(c) It also should be noted that from January 30, 2013, to the date of trial, the parties would accede to the other’s request for a change of time for pick up or drop off; change of date for pick up or drop off; change of location of pick up or drop off; change of person for pick up or drop off, such when they couldn’t agree on any of the above changes, they lost track of the previous agreement and/or they each reverted to previous orders, whether it be the Order of April 6th, 2011, the Order of January 30, 2013, or the Order of June 5, 2014, with their individual interpretation of the terms of each Order. It must be noted that the parties with their lawyers were the architects of the Minutes of Settlement or Consents which were the bases of each of the subject orders. Each party had their own interpretation of the meanings of the orders and often the differing interpretations generated a conflict which resulted in Ben not having access to his father.

(d) After the issuance of the Motion to Change, and for the balance of 2013, 2014, 2015 to April 26, 2016, the Applicant Mother recited the following as instances of poor communication between the parties:

(i) Scott’s refusal to provide his actual address until April 8, 2016 - It is to be noted that such complaint was not the basis of her original Motion to Change, nor did she amend her Motion to Change to include a Claim for Contempt, as against the Respondent Father. He provided his Aunt’s address and telephone numbers, as well as his telephone number, because for much of the time his access was exercised at the aunt’s home address. In addition, he provided his aunt’s address and telephone number because he did not trust the Applicant, who he alleged contacted the police to charge him with whatever the Applicant perceived was a breach of her interpretation of the Court Orders. It would appear that the Applicant Mother cross-examined the child after each visit to determine the locale of the visit with the Respondent Father. Although belatedly provided, if the child visited the Respondent Father at his residence, the Applicant Mother ought to have had this address from the date of the April 6, 2011 Order, and his telephone number, to contact the Respondent Father in the event of an emergency. Nevertheless, the Applicant Mother did not provide any evidence of an emergency when she could not contact the child in the care of the Respondent Father; nor did she move to find the Father in contempt of a Court order.

(ii) Glasses incident - The issue of the payment by the Father for the glasses purchased from the optometrist in October 2011 was ultimately resolved in 2013. However, this incident was not referenced in her Motion to Change. And, in any event, the reason for the difficulty for the payment was, in part, because of the need to change the child’s name to his proper legal name, Williams-Young, by the Applicant Mother, in order that the claim be paid by the insurer.

(iii) School incident - On April 17, 2013, at 8:52 p.m., in the last sentence of her email discussion with respect to their meeting in Newmarket on Sunday, she added as follows: “As of Friday I no longer live in Hillsburgh.” Later, on the same day, she wrote at 9:33 p.m., advising the Respondent Father of her enrollment of Ben in a Catholic school. Despite the Father’s response one month later to this notice, it is clear that the Applicant Mother, in her Notice, did not invite the Father to discuss the enrollment. She acknowledged in the email that she forgot to mention the enrolment; that she was enrolling Ben and that she would get the information from the school on Monday. Regardless of this evidence, this school enrolment incident has nothing to do with Ben’s unauthorized removal from school as the basis for her Motion to Change. Presumably, it references the attempted removal of the child by the aunt as discussed in paragraph 22(d)(x) below.

(iv) Protection concerns - The Applicant Mother conceded that in November of 2014, on the advice of Toronto Children’s Aid Society (“CAS”), and, without advising the Father, who was en route from Toronto to Barrie, she picked up Ben from school, thus preventing the Father from exercising access to the child. As the Father did not have access in November 2014, his counsel corresponded with the Applicant Mother on December 9, 2014 to confirm that the CAS had authorized the release of Ben to the Father and requesting that she inform the school. Rather than agree, what followed was 3 days of emails wherein each party asserted their right to engage police enforcement of the denial/exercise of access.

At trial no corroborative evidence was adduced by the Applicant that the Toronto CAS or Simcoe CAS called her to advise her against permitting access to Ben. Natalia Sosa, of the Toronto CAS testified that their agency advised Simcoe CAS on December 3, 2014, that Father could have supervised access with Ben. It was the Father’s belief that the Applicant Mother used the CAS/ police involvement regarding Ethan as a way for the Applicant Mother to prevent access to Ben. With respect to the Ethan incident, Ms. Sosa reported that although the Respondent Father did not believe that he physically abused Ethan, he agreed that he inappropriately disciplined the 4 year old child for which he was arrested and charged. Ms. Sosa described the injury to Ethan as “superficial” and described the Respondent Father’s cooperation, his full participation and completion of a parenting course named “Caring Dads.”

(v) Music Lessons - On an acknowledged short notice on Friday, September 25, 2015, the Applicant Mother requested that the Respondent Father assist her in paying ½ of the music lesson (guitar) tuition from September 2015 to January 2016 in the amount of $450. Although the Respondent Father requested further details of the lessons and receipts, the Applicant Mother invited him to contact the music school. There was no further discussion about the extraordinary expense as to its reasonability, or necessity, especially where both parties were of limited means. Apparently, the Applicant Mother arranged for the paternal grandparents to pay for the lessons. Nevertheless, the Applicant Mother cited this request as a basis for her need to have decision making powers for the child’s extraordinary expenses as well as an example of the parties’ inability to communicate. Given that the 2011 Court Order required a discussion about the necessity and reasonableness of the guitar lessons and their costs, disagreement about s. 7 expenses did not reflect, in itself, an inability to communicate. What it does indicate is that the parties’ Consent Order did not identify who was to make the ultimate decision with respect to s. 7 expenses. Hence, the parties were at an impasse with respect to decision making.

(vi) March Break incident - When the Respondent Father requested an accommodation, after the March break 2016, instead of returning Ben on the Sunday evening to returning him directly to school on Monday morning, the Applicant Mother declined, stating in her email: “Ben has been off for a week and needs to get back on his schedule and unfortunately for you to drop him at school requires him to get up far too early”. Scott replied: “I’m going to have to tell him (Ben) that he can’t see his aunt that took him to Florida because you won’t allow it”. If, in fact, the school was concerned that Ben had difficulty adjusting after a week vacation, such need for a routine would be appropriate. However, the evidence was otherwise – educationally, Ben did well; however, he exhibited behavioural problems primarily at school and some at the Applicant Mother`s residence, the genesis of which was a complicated amalgam of factors. The Applicant Mother’s position for the requested extra time was somewhat unreasonable, especially since she did not quibble with the Paternal Grandparents when they returned the child at midnight.

(vii) Walk- in Clinic incident - A review of the March 2, 2016, string of emails, indicated the frustration a custodial parent experiences when obtaining prescriptions and compliance with individual insurance company requirements for submission of prescription receipts for payment or reimbursement. In this case, the Applicant Mother took Ben to an after hour’s walk-in clinic rather than the family doctor. Her reason for doing so was totally reasonable. The Father’s questioning of her doing so was totally unreasonable. However, it would be wise of the Applicant, now that she knows, to inform the Father of the need for the prescription before she fills it out, so that he can give her the necessary information to process the prescriptions for reimbursement by the insurer.

(viii) Missed Access on June 20-21, 2015 - The Father forgot it was Father’s Day weekend and did not exercise access to Ben. The string of emails appears to be cordial and the Father acknowledged his error. This string of emails cannot stand for the proposition that the Applicant either feared the response to her emails by the Respondent Father; nor does this string stand for the proposition that the parties could not communicate:

“Awe crap. I’m sorry. I forgot that this weekend was Father’s Day. I thought it was next weekend. I can’t get up here to get him because I’m at work and there is no one around to approve the time off request for tonight. Trying to get something figured out for tomorrow and will get back to you.”

In response, the Applicant Mother wrote:

Oh ok. Keep me posted about tomorrow then.

Sunday, June 21, 2015 at 5:08 PM: “Hi Scott, I’m guessing since I have not heard from you and it is now 5:08 the 21st that you are not coming to get Ben.

(ix) Pick up time -The string of emails in the summer of 2014 is an excellent example of the confusion caused by the amendments to the various orders. With respect to the Respondent Father, he made reference to the January 30, 2013, Order pick up time; whereas the Applicant cited the June 5, 2014, Order of Justice McDermot. The McDermot J. Order amended the Order of April 6, 2011, and was silent with respect to the amendment to the Order of January 30, 2013. In addition, the parties regularly changed the times and dates between themselves. However, despite these changes, the Applicant cited that the Respondent Father’s choice of time for pick up and his choice of reliance on a particular order were stressful to her.

(x) The unauthorized removal of Ben from school - On many occasions in the past, the Father’s aunt attended at the pickup and drop offs at Ben’s school. On September 6, 2013, because the Applicant Mother did not notify the school that the aunt would be picking up Ben on Fri at 3:00, the Applicant Mother received a telephone call from the school for her authorization; the Applicant Mother refused to give the authorization and attended at the school to removal the child. She did so because the Aunt would not commit to returning the child to Barrie when the Applicant Mother refused to meet in Newmarket as had been the past practice, thus preventing the Father from having access that weekend.

(xi) Refusal to bring Ben back -August 2013 - Her evidence did not identify exactly when this occurred.

[22] The parties conceded that they communicated as needed on average once or twice per week. Initially they communicated through a communication log which travelled with the child between the two homes. However, the communication log became a contentious issue between the parties when the Father allegedly did not make entries in the communication book and the Applicant Mother did not arrange for the child to have the communication log with him and did not appreciate being commanded or reminded by the Court Order to do so. They commenced emailing one another and from a review of the Exhibit evidence, did so frequently. It was recommended and they agreed as well to use the Our Family Wizard and did so for a period of time.

B. Exchanges

[23] The Applicant Mother cited difficult exchanges at her residence and alternatively complained that the Respondent Father would not talk to her, and yet she insisted on certain exchanges at her residence. At trial, she confirmed that she did not talk to the Respondent Father since a verbal argument occurred in May of 2014 at her residence and required that all communication be via email. The Applicant Mother emphasized that she became stressed emailing the Father on certain issues which required his input before a decision was to be made. Such avoidance, especially where the Respondent Father was to be notified of an issue for discussion and decision, was reflective of her need to control and achieve the results she preferred, rather than her fear of the Respondent Rather.

[24] The evidence identified several changes for the location of pick up and drop off:

(i) Bramalea Go Station;

(ii) April 2013 to August 25, 2013 – at Applicant’s request, the parties agreed to the Newmarket Bus Station;

(iii) Pick up and drop off at her Barrie house driveway;

(iv) Pick up at school and drop off at Tim Horton’s, Barrie.

[25] The evidence also identified several verbal altercations at the exchanges:

(i) May 2014: The evidence is that the Aunt and Father drove to the house to pick up the child, Ben, as arranged, because the Applicant Mother at the time would not permit pick up at the school. The Father parked the car on the side of the street, rather than in the driveway to avoid verbal confrontations, as the Applicant Mother, and her fiancée and a third female person were accompanying the children home. As the Father was video filming the exchange on his cell phone, Mr Marceau took exception to the fact and swore at the Father within earshot of Ben. At this time the Applicant Mother returned to the home to call the police for the exchange.

(ii) When the court Order required the exchanges to occur at the Tim Horton’s, because the Father was concerned that the child, Ben, not exit Tim Horton’s alone in the dark and cross the parking lot to his Applicant Mother’s car, Mr. Marceau came into the Tim Horton’s to retrieve Ben and swore at the Father, in the presence of the Father’s wife, Ben and Ethan.

(iii) September 06, 2013: The aunt alleged that she was informed by the principal of many loud and nasty exchanges between the Applicant Mother or Mr. Marceau and the Father at the school which concerned the principal at St. Mary’s, for Ben’s and other children’s sake.

[26] These verbal altercations support a conclusion that the problems with exchanges had been aggravated by the Applicant Mother’s commencement of a relationship with Mr. Marceau which she described as commencing on March 27, 2013 and the exchanges constituted a significant material change in circumstances.

C. Discussion on Applicant Mother’s Evidence of Conflict

[27] The Applicant Mother’s evidence at trial suggested that the basis for a material change in circumstances was the continued conflict between the parties, making the Joint Custody Order, to which they consented, unworkable. She suggested that the conflict had its genesis in the domestic conflict before the April 6, 2011 Order. However, no domestic violence occurred after the 2011 Order and cannot be the basis of the material change. Nevertheless the Applicant Mother described the Respondent Father as argumentative and antagonistic, resulting in many disputes between the parties, often in the presence of the child, making exchanges difficult. As well, she suggested that this inability to communicate civilly had made it difficult for her to co-parent with the Respondent Father. Her preference was that the parties have little, if no face to face discussions, about the parenting of the child. To communicate about the child, her preference was that the parties use email.

[28] To contrast her alleged poor relationship with the Respondent Father, the Applicant Mother’s evidence focused on her past relationships. But for her relationship with the Respondent Father, the Applicant Mother described that she got along with each of her “exes”. The evidence at trial, however, supported a conclusion that each of her relationships had been fraught with difficulty and/or three out of the four partners had anger management issues and lack of emotional control.

[29] At trial, there was no indication of the specific days on which access was missed between January 31, 2013, and the issuance of the Motion to Change; nor was there any indication during this period of the days when the Respondent Father was late. It should be noted that the child was in 3 different residences and schools during the relevant period, from January 31, 2013, to September 2013, as subsequently discussed.

[30] Failure to adduce specific evidence in respect of these alleged failures to show up for access, or being late for pick up at school, results in the Applicant’s failure to establish a material change in circumstances between the period January 31, 2013, and September 24, 2013 regarding late access.

[31] There is significant correspondence between the parties debating the issue as to whether Justice McCarthy’s Order included Friday as the 5th day or whether the Applicant Mother’s calculations effectively provided the Father with 4 days of summer access. More particularly, the Applicant Mother had not adduced extrinsic evidence with respect to the calculation of the missed days for the summer of 2013, especially when she did not agree with the Father’s interpretation of the McCarthy J. order both with respect to the summertime access and to the 35 additional days for access. As she did not make a claim about summer access in 2012, and she has not provided evidence to prove her assertion, she has not established a material change of circumstances regarding missed summer access.

[32] Given the timing of the Motion to Change and the affidavit sworn on September 24, 2013, this school incident was likely the precipitating factor for the Applicant Mother’s Motion to Change. The principal reported as follows to the Office of the Children’s Lawyer (“OCL”):

In September 2013, Ben’s school principal called Barrie Police requesting them to attend when Mr. Young’s aunt, Mrs. Jutras came to pick up Ben without Mr. Young. Because Mrs. Jutras was not on the school’s emergency pick-up list for Ben, the principal could not release Ben to her. Hence, the principal called Ms. Williams to collect Ben from school. Police learned from Ms. Williams of her discomfort with allowing Ben to go with Mrs. Jutras for that weekend because she feared Mr. Young would not return the child home on that Sunday. When Mrs. Jutras did not agree to Ms. Williams’ condition that she return Ben to her in Barrie instead of at their pre-arranged drop-off location of Newmarket, Ms. Williams refused to allow Ben to leave with Mrs. Jutras. No altercation occurred between the adults and Ben was unaware of Mrs. Jutras’ presence at his school to pick him up.

[33] It should be noted that the January 31, 2013, Order stated as follows:

Paragraph 13 of the Final Order of Justice Olah dated April 6, 2011, shall be amended to reflect that when the Applicant Mother resides in her current address in Hillsburgh, the pickup and drop off location for the purpose of access shall be at the Bramalea Go Stop located at 1713 Steeles Avenue East, Brampton (“access location”). (my emphasis)

[34] The Applicant Mother relocated from Erin/Hillsburgh to Barrie before May 1, 2013, and advised the Respondent Father’s counsel and the Respondent Father as per her email to the Respondent Father on April 3, 2013. Sometime after March 2013, and before her relocation to Barrie she began an intimate relationship with Mr. Marceau. At the time of the school incident in September 2013, the Applicant Mother was pregnant with Mr. Marceau’s baby and he was represented as Ben’s stepfather to school authorities. Upon her relocation in April 2013, she did not bring a Motion to Change the Order of Justice McCarthy or the Order of April 6, 2011, with respect to residence and with respect to the needed change to the pickup and drop off locations. Given the fact that there was no change to the McCarthy J. Order by the Applicant Mother, but, there was an agreement to exchange in Newmarket, there was a real issue whether the original April 6, 2011 Order, paragraph 13, was the default location for pick up and drop off, or the agreed upon location in Newmarket. Paragraph 13 of the April 6, 2011 Order reads:

For the purpose of access pick-up and drop-off of Ben on access visits, at the request of the Applicant Mother, the address for this shall be at the Applicant Mother’s address at 175-67 Stanley Street, Barrie, Ontario at the end of the driveway. Accordingly, and in acknowledgement of this, the Applicant Mother recants and/or denies making allegations of verbal abuse by Amy Jutras, the Respondent Father’s aunt, who has acted as an intermediary and facilitator in the past.

[35] It should also be noted that Amy Jutras had historically facilitated the access between the Father and Ben, and yet, the Applicant Mother refused to provide the aunt permission, in September 2013, to pick up the child from school, requiring the school to call the police to intervene. The Applicant Mother then used Ben as a bargaining chip to elicit agreement from the aunt that the child would be brought back to Barrie at a specific time in Barrie, rather than as per the agreement from April 2013 to August 25, 2013, in Newmarket. Her emails confirm the agreement. See her email request dated April 04, 2013, where she stated: “Would you be willing to help me with the costs associated with my van in order to meet you in Newmarket (i.e. give up your travel reduction)??” And on May 19, 2013, the string of emails between the parties where Shannon states: “…we can talk about it tomorrow when I meet you in Newmarket”. The aunt, not having the authority to make such commitment, left without Ben, such that Ben did not have access to his Father the weekend of September 06, 2013. In my estimation, the Applicant Mother’s position was wholly unreasonable in preventing the aunt from picking up the child, given the fact that it was her frequent relocation which caused the arrangements for access to become contentious.

[36] Before the September 2013 school event with the aunt, the Applicant Mother and Father had corresponded their agreement with respect to the pickup and drop off location at Newmarket between April and August 24, 2013. Scott initiated the email string on August 24, 2013, advising that he could not drive Ben back to Barrie on Monday, and indicated to Shannon: “you are going have to come down to get him for the exchange time”. Her response was, “Just to advise you, my vehicle is not capable of the drive as you have been made aware in the past. As well, no court agreement states I am required to drive there. If you cannot bring Ben home Monday, you will need to make other arrangements”. Ultimately, Shannon wrote on August 25, 2013, at 8:59:40 am: “Scott you are required to have him back by 11 Monday morning or you are in breach of court order. I do not want to have to involve the police. I will meet you at the Tim Hortons on Dunlop St at 11:00am. Or just in case you want to call TPS 416 808 2222.” Yet at 9:33 a.m. she also wrote: “As per our last agreement together, I will be at the Newmarket bus station across from the Upper Canada Mall at 11 a.m. Have Ben there and ready.”

[37] In light of the above correspondence, given her relocation, and given the fact that no change to the Order was made, the parties had verbally agreed to the Newmarket exchange and had made the exchanges in Newmarket from April 2013 to August 25, 2013. The email string and the viva voce evidence at trial did not establish that the Father was refusing to bring the child home as alleged. Because the Applicant Mother’s relocation caused a need to negotiate or seek a judicial determination of the appropriate locus for pick up and drop off, as well as the time for these exchanges, it cannot be said that the Father refused to bring the child home as alleged by the Applicant Mother to the police.

[38] Other than their disagreement with the locale and times for pick up and drop off, the issue of communication between the parties did not reflect a significant material change in circumstances.

V. Father’s Evidence with respect to Material Change in Circumstances

[39] The order dated April 6, 2011, was based on a Minutes of Settlement. Virtually, from the date of the execution of the Minutes of Settlement, the Respondent Father alleged that he had difficulties obtaining the Applicant Mother’s cooperation to comply with the terms of the order requiring the Respondent Father to address these difficulties by a Motion for Contempt which was resolved in the Respondent Father`s favour by the Consent Order of Justice McCarthy dated January 31, 2013. Despite the consent Order, difficulties continued after January 31, 2013. Essentially, the Respondent Father relied on the specific terms of the April 6, 2011 Order, paragraph 3, which reads:

The parties shall make all major decisions together (my emphasis) regarding Benjamin’s health, residence, religion, education and welfare.

[40] Further, he relied on the term “Joint Custody”, contained in paragraph 1 of the Order to mean that he was to participate in all decision making, and that the Applicant Mother’s actions, after January 30, 2013, continued to minimize and trivialize his parenting and involvement in the decisions affecting Ben, as evidenced by the following:

Name Change:

(a) The Applicant Mother was to return Ben’s name back to Ben Williams-Young at the Respondent Father’s own costs. At birth the child’s name was registered as Benjamin William-Young. The Applicant Mother took steps to change the name to Benjamin Williams, without notifying the Respondent Father. This action was to be corrected pursuant to the Order dated April 6, 2011. The name change was to be completed within 20 days from the date of the order. The name change did not happen as the Applicant Mother interpreted this term to mean that the Respondent Father was to initiate the preparation, completion and payment for the change, requiring the Respondent Father to retain counsel to proceed. As early as June 29, 2011, Respondent Father’s counsel remitted correspondence to the Applicant Mother’s counsel addressing the name change and the $1500 overpayment of support.

Again, on October 4, 2011, the Respondent Father’s counsel remitted a letter to Applicant Mother’s counsel again, specifically addressing the name change and the $1500 overpayment of support. No response to either correspondence was received. The Father himself sent email correspondence to the Applicant Mother on June 28, 2011 and September 26, 2011, requesting that the Applicant Mother comply with the Court Order regarding the name change. Her responses were that he should proceed through counsel for the name change and the credit of the $1500 alleged overpayment, rather than resolve the issue between them. Ultimately, the Father prepared and completed the documentation for the name change, and remitted same to the Applicant Mother for her signature and, again, she refused to do so. At trial, the Applicant Mother suggested that the genesis of the problem was a poorly worded paragraph in the order. However, in her cross-examination, the Applicant Mother conceded that she was to initiate the name change under the order. By her resistance to the Respondent Father’s requests, she was consciously breaching the terms of the April 6, 2011 Order and prolonged the time by which the child’s legal name was used for daycare, medical records, and educational records. This delay in the implementation of the Name Change Order and her refusal to do so, required the Father to bring a motion to do so, all of which was problematic.

(b) The Respondent Father alleged, despite the ultimate name change, that the Applicant Mother on several occasions registered the child at his school and daycare with his non-legal name. On August 21, 2014, the child was registered at the Ferris Lane Community Daycare as Benjamin Williams rather than Benjamin Williams-Young. His Day Nursery Immunization History completed by the Applicant Mother dated August 21, 2014, referenced the child’s surname as Williams and not Williams-Young. In addition, at the child’s school, the Applicant Mother did not reference the Respondent Father as a contact in an emergency, but rather her current partner, Mr. Marceau. As late as November of 2015, the health card was not changed to reference the child`s legal name, such that when consulting with the paediatrician, the child’s name was noted as Williams and not Williams-Young. According to the Applicant Mother, the Applicant Mother’s refusal to properly register the child with his actual name was merely to reflect how Ben called himself. And in any event, the Applicant Mother, in her Reply, intermittently identified the child’s full legal name, despite the variety of designations for surname/legal name/usual last name.

[41] I find that, despite the intermittent use of the child’s legal full surname, the Applicant Mother repeatedly interpreted the Order of April 6, 2011, paragraph 2, to marginalize the Respondent Father’s involvement in the life of the child. The Mother’s reinforcement of the child’s erroneous identification with the name Williams, rather than Williams-Young, reflected the Mother’s misunderstanding of the emotional impact of this inaccuracy on the child. In addition, the Applicant Mother’s distinction between “legal name” and the child’s “choice of name” was merely her rationalization of her attempt to minimize the role of the Respondent Father in the parenting of Ben.

Relocations:

(a) On several occasions, both before and after the April 6, 2011 Order, the Applicant Mother relocated the residence of the child, without notice or minimal notice to the Respondent. Since the 2011 Order, the Applicant Mother moved:

(i) from Barrie and resided in Oro-Medonte from June 2012 to January 18, 2013;

(ii) then she moved to Hillsburgh/Erin (near Guelph) and resided there with her Father from January 18, 2013 to April 23, 2013; and

(iii) then she moved to Barrie as at approximately April 20, 2013, and then resided at 333 Bsmt Leacock Drive, Barrie, Ontario and then;

(iv) as at December, 2015, she moved with the children to Wylde Street, Barrie, Ontario;

(b) Because of her previous frequent relocations, the Applicant Mother was required

by Minutes of Settlement dated January 31, 2013, not to move from her residence in Hillsburgh, without providing the Respondent Father’s counsel with 30 days prior notice. However, I must conclude that she gave sufficient notice to both the Respondent Father’s counsel and the Respondent Father, on this occasion.

(c) Because of these changes in residence, the Respondent Father alleged that he had difficulty exercising access to the child. The Applicant Mother’s explanation for the Respondent Father’s failure to have access was that he was would not agree or accept her needs to relocate for the benefit of her family, and he was inflexible with respect to her requests for change of access locales. Although the McCarthy J. January 2013 Order cited the exchanges to occur in Bramalea, at the Applicant Mother’s request, on April 17, 2013, the parties agreed to meet at the Newmarket Bus terminal on Eagle Street. They continued to meet in Newmarket from April 17, 2013, until August 25, 2013.

(d) The Applicant Mother was required by the order of Justice McCarthy to provide to the Respondent Father “make-up” access of 35 days in accordance with Schedule ‘B’ of the Order. At trial, the Respondent Father advised that he had not received his 35 days. He suggested that what is owing to him for “makeup access” was 20 days. On the other hand, the Applicant Mother suggested that she offered more than 35 days in “make up” access, which were not accepted by the Respondent Father. Accordingly, she suggested that she should not be penalized for his omission. Having regard to the email discussions for summer access and make up access after 2013, as well as my concern for the credibility of the Applicant Mother on several issues as discussed further, on the issue of “make up” access, I prefer the evidence of the Respondent Father.

(e) Not only did the Respondent Father believe that such moves had a negative impact on the child’s emotional health, to the consternation of the Respondent Father, the Mother’s relocations required several adjustments to the pickup and drop off arrangements. The frequency of the moves taxed the Respondent Father’s flexibility because of his concerns for a more stable lifestyle for Ben.

(f) The Applicant Mother did not notify the Respondent Father of the change in schools for the child on a timely basis. Since the 2011 Order, the Applicant Mother had unilaterally registered Ben in a total of four different schools with either no input or minimal input from the Respondent Father. In fact, in advance of the trial in September 2016, knowing that the child’s custody was at issue, the Applicant Mother unilaterally enrolled Ben in his fourth school, Monsignor Claire. Prior to such change, Ben had been enrolled at St. Mary School which she described as “amazing” and which he had attended since the Applicant Mother’s return to Barrie in 2013. At trial the Applicant Mother confirmed that in 2012-2013, she moved with Ben on three separate occasions with minimal, if any, consultation with the Respondent Father, Ben’s school teachers, or school counsellors. The Applicant Mother also failed to produce any evidence of her consultation with the Respondent Father prior to making the decision to enrol Ben at a catholic school. She also testified that she didn’t believe that the number of different partners she had and the changes in residence and the changes in school could have had a negative impact on Ben, despite the fact that she acknowledged that Ben was exhibiting behavioural difficulties as early as Junior Kindergarten in 2012.

(g) The Mother has had four different partners and several daycare providers. Therefore, according to the Respondent Father, the Mother could not provide stability to Ben, because of her precipitous and conflicting relationships with the Fathers of her children and daycare providers. In each case, Ben had been exposed to different caregivers and when he attached to one, the relationship was severed by the Mother and, in one case (other than the Respondent Father), in a violent environment. Ms. Norberg’s OCL notes identified that Ben was attached to Tom Eves, to his Respondent Father and to Angel the caregiver. In each case, the Mother abruptly severed the relationship because of conflicts between the parties. In two of the cases, it was alleged that Ben was present during the conflict and could have been impacted by it. In the most recent relationship, Ben had been physically disciplined by the Mother’s partner, without any significant intervention by the Mother.

Child’s counselling and CAS involvement:

(1) According to the Mother’s evidence, Ben was spanked by her fiancé, Mr. Marceau, under 10 times in 2013. It should be noted that the evidence when Mr. Marceau commenced to cohabit with the Applicant Mother in Barrie varied from, not at all, to either September 2013, November 2013 (Aadyn incident) or January 2014 (Jaxyn’s birth). However by the time of the incident on February 14, 2014, both Aadyn, Ben’s younger step-brother, and Ben, were very fearful of Mr. Marceau. With respect to this incident, Ben, at one point in the investigation, alleged that Mr. Marceau had struck him. As the intention to harm Ben could not be verified, Mr. Marceau was not charged. However, physical discipline of the children had been verified and the Mother and Mr. Marceau were required to attend a parenting course. At trial, I was concerned about the Mother’s failure to adequately address the issue of the alleged rash or bruise (broken blood vessels) caused by Mr. Marceau. She did not take Ben to see a doctor. She withheld Ben from school to avoid the school’s intervention to protect the child, by involving the CAS and police; and, she minimized the concern the children had with Mr. Marceau’s anger management and discipline techniques. Mr. Marceau’s evidence at trial, about his approaching the children to mete out “Nose and Toes” discipline was hardly plausible, given that he had not learned this technique until he took the three lessons in the parenting programme sometime in May or June of 2014, after the February 14, 2014 event. Also, in a continued effort to minimize the Respondent Father’s role, the Mother did not advise the Respondent Father of the February 14, 2014, Marceau/Ben discipline event, nor of the CAS or police investigation. Nor did she advise the Respondent Father in April, 2016 when Ben ran away from school. The Mother did not consider these to be major incidents, and said it was the Respondent Father’s responsibility to contact the school to inquire as to Ben’s behavioural and educational issues.

(2) In 2013 and 2014, there were several email strings wherein the Respondent Father inquired of the Mother regarding the child’s psychologist’s and/or counsellor’s reports. None were provided as the child did not have any counselling other than at school. However, Ben’s Grade 2 Counselling Summary from October 3, 2015 to June 29, 2016 identified Ben’s challenging behaviours and the school counsellor’s (St. Mary’s) strategies of which the Respondent Father was oblivious. It is important to note that, to inform the Respondent Father of Ben’s behavioural issues and strategies, was not solely the Mother’s responsibility. The Respondent Father’s failure to be proactive with the school was detrimental to Ben’s emotional health.

(3) Despite the counsellor’s consultation which was provided throughout the school year, Ben continued to present with significant behavioural challenges both in and out of the classroom. Behaviours of concern and strategies included:

(a) “Refusal to come in from recess, physical aggression towards staff and peers, temper tantrums lasting over an hour when he did not want to do what was asked or when situations did not go his way. Refusal to comply with directions when he did not want to do what was asked…”

(b) “Individual periodic check-ins were conducted with a view to ascertain his cognition of the plan or place for him and the strategies he had learned the previous year to self-regulate. Ben was very aware of his personal support strategies including several designated calming locations, deep breathing exercises to calm (such as 4 square breathing), how to use his ‘hassle log’ self-imposed breaks and how to use his words to express his feelings. Ben’s ability to apply these strategies was inconsistent.”

(c) “Weekly check-ins were held with the teacher and the Roots of Empathy Program was also provided in the class by the school counsellor.”

(d) “Classroom intervention strategies were implemented with varying degrees of success which included an incentive plan for positive choices, consistency of expectations, ‘good notes’ home and implementation of the behaviour plan. A team meeting with Ben’s mother and stepfather (my emphasis) was held in late Fall 2015 to discuss school concerns and program planning. The relationship between the school and home became challenged (my emphasis) as the year progressed, and culminated with police involvement in April 2016 (my emphasis). Police follow-up facilitated a referral to access community-based mental health services (New Path).”

[42] Despite the above, the Mother suggested she arranged for counselling for Ben at New Path without any proof of ongoing registration from 2014 onward. The Mother’s evidence was that Ben and Mother started counselling with New Path on August 23, 2016, which was after the April 2016 police involvement. There is no evidence that she informed the Respondent Father of this appointment. There is no evidence that the Mother informed New Path that the Respondent Father and she had joint custody of Ben. There is no evidence that New Path required the Respondent Father’s involvement or consent to its counselling with Ben. The Mother’s evidence was that the next New Path counselling meeting was scheduled for September 21, 2016, to deal with Ben’s temper and outbursts. The Mother’s evidence, to the effect that she knew when Ben was getting mad, suggested that which she denied – that Ben had outbursts or “froze” at home, as well as, at school.

OCL Investigations

[43] The Respondent Father asserted that the parenting of the Mother has been scrutinized by not one, but three OCL investigations. All clinical investigators testified. A review of all three investigations showed similarities of concerns about the Mother’s parenting namely:

Paula Carter MSW: In her report dated December 22, 2010, this clinical investigator reported the following:

(i) “Ms. Williams described her relationship as difficult with her biological mother who she lived with after separating from Mr. Young. When Ms. Williams and her mother had an argument, Ms. Williams made the decision to leave the home and live with different friends with Benjamin from April 2008 to September 2008. She went to a women’s shelter with Benjamin for approximately one month to obtain subsidized housing which she acquired in October 2008. During this time, she became involved with Mr. David Reeds and had a son, Aadyn, from that relationship. Recently, she moved from subsidized housing to reside with her partner of approximately one year, Mr. Tom Eves”. This history identifies that the Mother did not get along with her Mother, moved the child frequently, and commenced relationships precipitously.

(ii) Ms. Carter also identified the Respondent Father’s concerns about the Mother’s parenting, some of which concerns continue to this day, namely:

a. “The Mother unilaterally stopped access between the Respondent Father and Ben;”

b. “The Mother had anger control issues and may verbally and physically abuse the child; denied by the Mother;”

c. “The Mother intended to alienate the child from the Respondent Father by changing his name, without notice; Ms. Williams responded with no remorse and was clear that she is the primary care parent in charge of such decisions; and”

d. “The Mother’s inability to responsibly parent the child; denied by the Mother.”

(iii) To avoid the historic difficulty with exchanges and decision making, Ms. Carter recommended, inter alia as follows:

“Joint custody to the parents with primary care of Benjamin with the Mother in a parallel parenting agreement.”
“All exchanges supervised by Newmarket Access Centre, halfway between Barrie and Etobicoke. If the centre is closed for any reason, the exchange will be completed at the Newmarket Police Station, inside the front entrance.”

[44] It should be noted that the parties, in their Minutes of Settlement, which gave rise to the Final Order of April 6, 2011, did not address the major issue of parallel parenting or decision making. As a result, the parties continued their conflict about major decisions affecting the welfare of Ben.

[45] Overlapping Ben’s second OCL investigation was another OCL investigation conducted by Shazeeda Haroon in 2014 and dated January 14, 2015, which involved the Applicant Mother’s parenting of her second oldest child, Aadyn Reeds. Although, this investigation involved Ben’s best friend, stepbrother and roommate, it raised similar issues of concern by Aadyn’s father, Mr. Reeds, namely:

(iii) Because the CAS was involved with the Mother and Mr. Marceau over the physical discipline of Ben, there was concern about the welfare of the child, Aadyn;

(iv) Concern about the Mother’s precipitous relationship with Mr. Marceau, who was believed to be violent;

(v) Concern about the Mother’s unwillingness to share information about the child, when asked;

(vi) Concern about the Mother’s disregarding the Respondent Father’s opinion as to schooling and medical decision making;

(vii) Ms. Williams advised Ms. Haroon that: “She currently resides with Mr Marceau, the Respondent Father of Jaxyn and has done so for the past two years. She has been involved with the Office of the Children’s Lawyer in relation to custody and access disputes with the fathers of Benjamin and Kaylyn”;

(viii) Ms. Haroon’s observations of the Mother and children were very positive, namely: “Given that there are four children 6 years and younger in the household, it was observed to be a busy home. Interactions appear to be playful and loving as there are multiple positive interactions between Ms. Williams and all of the children”; and,

(ix) Ms. Haroon recommended joint custody with the principal residence of the child, Aadyn, to be with the Mother, with two out of three weekends with the Respondent Father and a mid-week visit with the Respondent Father.

[46] The second OCL report dealing with Ben was prepared by Andra Norberg, B.Sc., M.A., who issued her report on April 16, 2015. In advance of the written report, the parties had a teleconference disclosure meeting on November 6, 2014, with the Respondent Father and his counsel attending. The Respondent Father argued that, at her disclosure meeting, Ms. Norberg stated that she was recommending joint custody. Both the Respondent Father and his counsel were very surprised when they received the text of the report as it did not coincide with what they understood to be her recommendations. Although, Ms. Norberg indicated that there were several iterations of the report before the final one in April 2015, she did not recall recommending joint custody at the teleconference meeting in November. However, a review of the report, clearly identified significant difficulties with the court’s reliance on the report, for the following reasons:

(e) The Mother had a telephone meeting with Ms. Norberg after the disclosure meeting in November, 2014.

(f) Ms. Norberg required the Respondent Father to complete a questionnaire and did not require same of the Mother. Even though the Respondent Father completed the questionnaire, Ms. Norberg omitted to pick it up and review it before making her recommendations.

(g) Ms. Norberg became an advocate for the Mother and, as such, her decisions were selectively in favor of the Applicant Mother to both Ben and the Respondent Father’s detriment.

(h) Ms. Norberg did not disclose to the Respondent Father, prior to the telephone conference meeting, that the Ben was struck by the Mother’s fiancé, Ms. Norberg stating that it was not the role of the OCL to be an informant.

(i) Ms. Norberg did not inquire of the doctor specifically about Ben’s injuries of February 14, 2014.

(j) Ms. Norberg stated that she didn’t ask the Mother why she didn’t take Ben to the doctor on February 14, 2014.

(k) Regarding not sending Ben to school, after the February 14, 2014, injury, she recalled the Mother explaining that Ben had an allergic reaction. She thought there could have been other interpretations, but she chose not to pursue investigating this issue.

(l) Ms. Norberg acknowledged that the Applicant Mother didn’t want Ben to go to school with marks on his face, as she was concerned with the school’s reaction to call the CAS; and the longer it took Ben to go to school, his story could have changed. Ms. Norberg appeared to minimize the Mother’s choice to avoid protecting Ben, in favour of protecting her fiancé and herself from an investigation.

(m) Ms. Norberg confirmed that she did not have a specific conversation with Mr. Marceau about Ben’s injuries, again, minimizing the impact of the event on Ben. In fact when she met with Mr. Marceau, she relied on his and the Mother’s statements because she had not yet received the reports from the CAS and the police.

(n) Ms. Norberg agreed that when she met with the Mother, the Mother failed to tell her about the CAS and police involvement regarding the February 14, 2014, incident with Ben. Ms. Norberg advised that it was important to know about the incident because it was a significant part of the history between Mr. Marceau and Ben.

(o) Ms. Norberg stated that she had more contact with the Mother than the Respondent Father because she had a lot of difficulty reaching him; however, she did not reach out to his counsel to facilitate this contact.

(p) When Ben identified that he was subject to a form of discipline “smacking on the bum”, she did not pursue who was smacking him on the bum in his Mother’s household and that she could have asked Ben more about the smack on the bum and did not know why she did not.

(q) Although Ms. Norberg pursued the issue of the Respondent Father’s probation notes in order to get full disclosure, she failed to pursue the Mother’s refusal to permit her to interview Ben’s former daycare provider, an important source of information, who she acknowledged was important to Ben, especially since the Mother had yet another adult conflict and was worried that the daycare provider, Angel, was going to tell untruths.

(r) Ms. Norberg did not inquire, nor did the Mother proffer, how many schools Ben had attended. She only received records from two schools (Oro and St. Mary’s) and was unaware of Ben’s attendance at a school in Erin/Hillsburgh.

(s) As she was aware that the Respondent Father was concerned about Ben changing schools, Ms. Norberg failed to question the Applicant Mother about the multiplicity of changes. She did confirm that in her experience, a lot of movement was hard on children when they are trying to establish themselves. Such changes can be stressful and unhealthy. This witness confirmed that the information about the number of school and residences would have been good information to have in order to give a chronological picture of the homes he lived in, the schools he attended. She stated that the less the schools he attended, the more stable his life would be and such information would have impacted her recommendations.

(t) Ms. Norberg acknowledged that she was not informed by the Mother about the ongoing other OCL investigation by Ms. Haroon. If she had known about the other OCL involvement, she would have had a more robust picture of what was at the centre of the adult conflict rather than concluding that because the Respondent Father was on probation, his behaviour alone fuelled the adult conflict.

(u) Despite her interview with the principal, it was clear that Ms. Norberg did not have a full picture of the extent of Ben’s behaviours at school, because she relied on the information from the Mother.

(v) Despite her knowledge that the Mother was not facilitating access and was not sharing information about Ben, she recommended sole custody to the Mother.

(w) Ms. Norberg did not reference Ben’s statements to her about his Respondent Father: “I’d like Dad to stay with us then I could see him every day.” “He gets upset when he doesn’t see Dad for a lot of time.” “I really want Mom and Dad together again so I can see my Dad every day.” Rather, she noted Ben’s response to her leading question: “What ideas do you have about how to split your time with Mom and Dad?” To which Ben replied:” “I like to spend more time at Mom’s, not less time with Dad than now – he wants more time with me but then he works. I spend time with Leslie and its fun.”

(x) Ms. Norberg surmised that Mr. Marceau would facilitate and encourage access between Ben and his Respondent Father, whereas the evidence was to the contrary. Mr. Marceau was very antagonistic at the drop offs and used foul language in front of children. He acknowledged that he and the Mother often had negative discussions about the Respondent Father, such that Ms. Norberg’s optimism about Mr. Marceau’s facilitating access was unrealistic.

(y) Ms. Norberg focussed her reasoning for her recommendations on the fact that there was an access hiatus between Ben and his Father which precipitated Ben’s behaviours. She did not address the fact that the Mother’s objection to the locus for the exchanges or to the time for the exchanges was at the core of the disagreement. Nor did she address other factors which would have impacted Ben’s emotional behaviour such as: the precipitous introduction of new partners as stepdads to the child; physical discipline; changes of schools; changes of residences; and, younger children vying for her attention.

(z) Ms. Norberg was advised by the Applicant Mother that she and Mr. Marceau got along very well with the other three fathers and that she maintained a relationship with each of the three fathers. Evidence at trial proved otherwise. Mr. Reeds was required to bring an Application involving an OCL investigation to determine that he have joint custody of his child. Further, Mr. Reeds did not have anything favourable to say about Mr. Marceau.

(aa) Lastly, Ms. Norberg provided no factual underpinning for changing the custody from joint custody to sole custody.

[47] Like Ms. Haroon, Ms. Norberg was impressed the positive interaction between the Applicant Mother, and all four children and stated that the Mother demonstrated amazing skills in managing and meeting the needs of all the children while also enjoying her parental role. Her observations of the Respondent Father’s interaction with Ben and his family were positive, but not nearly as effusive.

[48] Although I have a high regard for the work and efforts of the OCL clinical investigator, I find that Ms. Norberg’s report and evidence at trial was less than balanced, and as noted above, in several instances, lacked factual information on which she made her recommendations. Accordingly, I do not ascribe great weight to her recommendations.

Paediatrician’s Report

[49] Dr. Miriam Hansen, M.D. FRCP(C) met with Ben and his Mother. Despite the fact that the source of the information to the paediatrician was the Mother, her report dated November 6, 2015 is insightful and telling. She reported as follows:

Ben is a seven year old boy who has been having some struggles with outbursts at school including verbal and some physical manifestations. At this point I am not finding any major medical Issues, although his breakfast routine could be optimized just for overall health (reducing cereal such as Fruit Loops and replacing with more nutritious options). Sleep appears to be appropriate for age.

In terms of his social background, I do think that this is a significant contributor. He has been exposed to several home environments and mom has had several partners over his lifetime. Of great importance is that several partners have had a pattern of domestic violence and that Ben may have witnessed some of these behaviors. He has also had undoubtedly some significant disappointment involving his biological father not always following through on his promises or typical commitments of a parent such as remembering his birthday. There has also been an ongoing custody battle and all of these factors are undoubtedly influencing Benjamin.

Furthermore there is most likely a genetic “temperament” component. Some of Ben’s behaviors resemble those of his Father when he was young. Therefore certainly Ben requires some direction to learn how to manage his feelings of frustration and anger in a more appropriate fashion then perhaps his father did.

At this point I am not finding evidence to suggest anything such as an ADHD, learning disability, anxiety, depression, autism, or any other psychiatric issue.

[50] The Children’s Law Reform Act (“CLRA”) requires that there be a material change in circumstances that affects or is likely to affect the best interests of a child before a custody or access order may be varied (s. 29).

[51] In addition to the CLRA, the court is cognizant of the analysis provided in Gordon v. Goertz, 1996 CanLII 191 (SCC), 134 D.L.R.(4th) 321, at para.13 (S.C.C), by McLachlin J., writing for the majority who stated:

It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made initial order.

[52] Also, according to Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, para. 29, the “material” change must be one of significance, which must relate to the state of affairs that was not known or foreseen at the time the original order was made.

[53] Upon a review of the evidence, the evidence supports the following conclusions about the existence of material changes affecting the child:

Moves and Schools

[54] Since the date of the April 2011 Order and the January 31, 2013 Order, the Mother moved several times, and changed schools for the child, which moves and changes in school impacted the emotional health of the child, Ben:

(i) Move from Barrie to Oro-Medonte with Tom Yates. First registration of Ben in a JK class in September 2012 at Guthrie Public School. Mom gave verbal notice to the Respondent Father but no written notice of move or registration at school.

(ii) Her abrupt move upon separation from Tom Yates, on January 14, 2013, alleging physical and emotional abuse, to Hillsburgh/Erin to live with her father, a 1.5 hour drive from Barrie, such that Ben changed schools from Guthrie Public School in Oro to Ross R. McKay Public School where he was registered on January 28, 2013.

(iii) Her move from Hillsburgh/Erin on April 22, 2013, to 333 Leacock Street, basement, Barrie, Ontario, such that Ben changed schools from Ross R. McKay Public School to St. Mary’s Roman Catholic School in Barrie, where he was registered on April 22, 2013. By May 10, 2013, within 2 weeks of registration, Ben’s teacher was referencing: “Benjamin’s uncontrollable meltdowns which he has when he is upset with someone or does not get his way. The above is ongoing but showing some improvement”; and on September 17, 2013, teachers meet with the Mother and stepdad (Mr. Marceau) because Ben was sent home from Senior Kindergarten at St. Mary’s for non-compliance and defiance.

(iv) Move from 333 Leacock Street, basement, Barrie, to 37 Wylde Place, Barrie, Ontario with her partner, Mr. Marceau, in December of 2015. Ben continued at St. Mary’s until August 30, 2016, when he was registered at Monsignor Claire Roman Catholic School, advising the Respondent Father of her reasons for the change as follows:

Aug. 30, 2016 19:17, “Shannon Williams” shaimon.m.williams86@gmail.com wrote:

Scott,

For the past 2 years I have had to leave work and take the kids to daycare and then return to work, or have family pick up the kids and drive them to daycare. As you can imagine this is not a feasible way to function every day. I have the opportunity to register the kids at the school near the daycare so that the daycare can provide the transportation.

I have already spoken with Aadyn’s dad and Kaylyn’s dad and they have agreed that it would be better for me AND the kids. Obviously I need your opinion too. I have also spoken with the kids and they have a lot of friends from daycare that attend at the school and are excited at the possibility of attending there. The school is Monsignor Claire.

[55] This change for Ben was done without consultation with St. Mary’s school counsellor; the paediatrician and with little consultation with the Respondent Father; yet, she did inform the 2 other fathers in June 2016 of her wish to change schools. There is no evidence whether the issue of the change was addressed with the New Path counsellor.

Different Partners:

[56] From April 2011 to January 31, 2013, the Applicant Mother had 2 different partners. Upon her break up with her partner of 3 years, Tom Eves, the Mother met Mr. Marceau in March 2013, and contrary to the concerns expressed to her by David Reeds, she precipitously commenced a romantic relationship, and presented her new boyfriend as Ben’s stepfather by September 2013, who, with the Mother’s permission, commenced parenting and disciplining her children thereafter.

Cohabitation:

[57] The Mother commenced to cohabit with Mr. Marceau. Although both the Mother and Mr. Marceau denied that they lived together or cohabited, Aadyn and Ben, identified to all that Mr. Marceau lived with them. The paternal grandparents believed that the Mother and Mr. Marceau cohabited. He was there, often in his pyjamas, whenever they either picked up or dropped off Ben. The Mother informed Ms. Haroon that they cohabited. The Mother informed Ms. Norberg that they cohabited. Both OCL’s Norberg and Harroon, referred to Marceau as the Mother’s common-law partner and living with her and the children. Mr. Reeds believed they cohabited because Mr. Marceau was present at home whenever he came to pick up or drop off Aadyn. Ben informed the paediatrician on November 6, 2015, that Mr. Marceau resided with his Mother and the children. Pursuant to her 35.1 affidavit, sworn April 2014, the Mother indicated that she worked fulltime and that Marceau lived with her and cared for the children. Despite the above evidence to the contrary, at trial, both the Applicant Mother and her partner insisted that he did not live together. Such insistence underscored the unreliability of their evidence. I find that on the evidence above, from approximately September 2013, Marceau lived with the Applicant Mother, as husband and wife. In her absence and in her presence, she permitted him to care for the children. From September 2013, she permitted him to discipline her children physically. The suggestion by both witnesses that their statements to the OCLs of their cohabitation was for the benefit of the children, not to confuse them, was specious and disregarded the reality of their life together, and disregarded the impact of the relationship on the emotional health of Ben.

Physical and Emotional Abuse:

[58] Both immediately before and after January 2013, Ben was witness to the alleged physical and emotional abuse perpetrated by Tom Eves on his Mother, requiring her to abruptly leave her home with her children from Oro to Erin. In addition to the trauma of the moves and change in schools, Ben was also physically disciplined by Marceau in 2013; according to the Applicant Mother, “less than 10 times”. It is not surprising that Ben’s behaviours at school continued to escalate in 2014, 2015 and 2016.

Interpretation of Access:

[59] During the upheaval in Ben’s life in 2013, the Mother acknowledged that because of her disagreement with the Respondent Father about the interpretation of the April 2011 Order or the January 31, 2013 Order, she did not permit the Respondent Father to have access to Ben for a period of 6 to 8 months. It is no wonder that, in addition to the upheaval, Ben missed his Father which exacerbated the child’s emotional turmoil. Ben’s behaviour continued to deteriorate at the school.

Volatile Exchanges:

[60] With the introduction of Mr. Marceau, the exchanges became volatile, with Ben observing and hearing the verbal conflict and abusive language hurled at his Father by Mr. Marceau.

Criminal Charges:

[61] Although the Respondent Father was charged and convicted of assault on the Mother in 2008, he received a conditional discharge. Nevertheless, he was charged again in 2014-15 for assaulting his stepson. Here, too, he undertook a 12 session parenting course and received a discharge. In his case, the Toronto Children’s Aid Society (“CAS”) worker, Ms. Sosa, described the assault as poking the child in his face 4 times and that the injuries were superficial. This child was not withheld from school by the Respondent.

[62] The Mother precipitously engaged with Mr. Marceau and permitted him to physically discipline Ben. Although Mr. Marceau was not charged, the injury to Ben was not superficial as evidenced by the Mother’s refusal to permit Ben to attend school until several days after the injury, for fear of the school’s involvement of the police and CAS. Both the Mother and Mr. Marceau were required to take a parenting course and Mr. Marceau attended three of the four sessions.

[63] Both parties were conflicted as to the interpretation of the various orders affecting the Respondent Father’s right of access and the Mother and Mr. Marceau used this conflict to engage in access discouraging behaviour.

[64] The Mother continued to minimize the Respondent Father’s role in decision making by either no consultation on an issue, or, belatedly addressing the need to consult, such that the Respondent Father had little time to consider his position. In other words, the Mother asserted her right to make the ultimate decisions regarding health, education, religion and extracurricular activities with little, if no input, by the Respondent Father, contrary to the Order of April 2011. After a review of all the correspondence between the parties, the Mother’s assertion that the Respondent Father, after an invitation to consult, simply did not respond other than for the music lessons, was not supportable.

[65] The Mother’s assertion that the constant conflict, caused by the poor communication, the difficult exchanges, gave rise to the material change in circumstances requiring a change in custody, was not entirely supportable or proven.

[66] On the other hand, on an analysis, the Respondent Father’s evidence of a material change in circumstances, he has established changes which were significant and were not foreseeable at the time of the April 2011 Order or the January 31, 2013 Order. Further, these changes negatively impacted the child’s life. The evidence, taken as a whole, points to a joint parenting regime which was not working, not because the parents could not cooperate or communicate, but because of their inability to make a decision in the best interests of Ben. On many occasions, they communicated and they cooperated. In my estimation, the joint parenting regime did not work because the parties did not implement the Carter recommendations for parallel parenting. Parallel parenting required the parties to identify that the parties would exchange and discuss each issue for determination: health, education, religion and extra- curricular activities, and failing written agreement, one or the other partner would be designated as the deciding parent. I believe that had the parties addressed these issues in April 2011 and January 31, 2013, their conflict would not have escalated as it did.

[67] Once a material change of significance has been proven, then the custody arrangement can be reviewed. For the review, the Supreme Court reaffirmed that the best interests of the child is the appropriate and only test at this stage which included a consideration of a number of factors:

the existing custody arrangement and relationship between the child and the custodial parent;
the existing access arrangement and the relationship between the child and the access parent;
the desirability of maximizing contact between the child and both parents;
the views of the child;
the custodial parent’s reasons for moving, only in the exceptional case where it is relevant to the parent’s ability to meet the needs of the child;
disruption to the child of a change of custody; and,
disruption to the child consequent to removal from family, schools, and the community he or she has come to know.

Law and s. 24 of the CLRA

[68] In addition to the Supreme Court of Canda identification of the best interest considerations, I must address s. 24 of the CLR. Under s. 24(2) of the CLRA, to determine the best interests of the child in respect of custody or access to a child, a court shall consider all of the needs and circumstances of the child 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 care and upbringing of the child.

(b) the views and preferences of the child, where such views and preferences can reasonably be ascertained;

(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) any plans proposed for the care and upbringing of the child;

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

(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 through an adoption order between the child and each person who is a party to the application.

[69] Section 24(2)(a)(i) of the CLRA requires the court to consider: (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: Ms. Norberg’s notes of her involvement with both parties, and her observations of the interaction, state that Ben would like more time with his Father and that he wished that his Mother and Father would live together. These statements from the child are telling, especially since the child had lived primarily with the Mother.

[70] Section 24(2)(a)(ii) of the CLRA requires the court to consider: (b) other members of the child’s family who reside with the child: Ben had three siblings and the sibling interactions observed by Ms. Haroon and Ms. Norberg suggested that they mostly got along very well with each other. However, they often competed for the Mother’s attention. The Mother, in Ms. Norberg’s report, was able to balance her interaction with each child appropriately. Ben was described as the “big brother” who often assumed responsibility for the younger three children. He was not described as parentified. He also had a special relationship with his stepbrother, Aadyn, with whom he shared a bedroom and was described as his best friend. Ben’s relationship with step-brother Ethan was described as good, but, Leslie Young described the two as closer when they were 4 and 6 years old than at present. In his interview with Ms. Norberg, Ben said he enjoyed himself at his Father’s residence and that Leslie was fun. In 2013 and 2014, Aadyn and Ben advised others that they feared Jason Marceau, although during 2014 and 2015, Ben noted that Jason often walked him home from school, perhaps signifying an improvement in the relationship.

[71] Section 24(2)(a) (iii) requires the court to consider the persons involved in the care and upbringing of the child; Ben received intermittent visits form his paternal grandparents, about three to four times per year when they took Ben to the Barrie Colts Hockey games, the Toronto Science Centre or boating. Because the returns by the grandparents were sometimes late, the paternal grandfather told Ben to “be good” the next day. The paternal grandparents, being alienated from their son, suggested that the Applicant Mother could ensure their continued involvement with their grandson. Of a greater significance to Ben were his Father’s aunt and uncle, Amy and Jerry Jutras, who had often cared for Ben when the Respondent Father lived with them, and continue to intermittently attend with the Respondent Father to pick up and drop off the child. The Applicant Mother was very concerned that the aunt and uncle ought not to care for Ben as she alleged they do.

[72] Section 24(b) - the views and preferences of the child, where such views and preferences can reasonably be ascertained: The Applicant Mother relied on Ms. Norberg’s statements that:

“Ben wanted more time with his Mother, less time with his daycare provider, and he wanted less time he had with his Dad even though he knew his Dad wanted more of the time.”

[73] In cross- examination, Ms. Norberg admitted that there was a possibility of coaching Ben by the Mother prior to her interview with him. Whether or not there was coaching, a balanced read of Ms. Norberg’s notes indicated that the child was not presented with an alternative – to live with his Father, live in Toronto and go to the same school as Ethan. Also, in the first 2 notes, he wished that he could see his Father every day and latterly, he wished not to spend less time with Dad. His responses to the child’s questionnaire, as reported by Ms. Norberg were:

“How do you know when Mom is mad? She yells;
If you had three wishes for anything, what would you wish for? I really want Mom and Dad together again so I can see my Dad every day.”
What ideas do you have about how to split your time with Mom and Dad? Same. I like spending more time at Mom’s not less time with Dad than now – he wants more time with me but then he works. I spend time with Leslie and its fun.”
Does anyone read to you at bedtime? No. I can read 1 book (He’d like people to read to him).
How do you feel about your parents not living together? (He doesn’t like it). I’d like Dad to stay with us ‘cause then I could see Dad everyday. Tom used to live together with us. I really miss Tom.
What do you like about Mom? What would you change about her? They don’t get to wrestle often with her, ’cause she’s working – to work less time.

[74] Section 24(c) the length of time the child has lived in a stable home environment: The history of Ben’s changes in residences did not reflect a stable environment. However, the child has lived at Wylde Place since December 2015 and a further change in residence may be difficult for him. Most troubling was his September 2016 relocation from St. Mary’s school to another Catholic school. The main reason for this move was because it was more proximate and convenient for the Mother and her other children. This change was precipitous and there was no extrinsic, objective evidence that this school had a support plan suitable for Ben to address his behavioural issues. Nor was there any evidence of the Mother’s consultation with St. Mary’s whether such change in school would be something Ben could handle. Nonetheless, the Respondent Father’s plan to relocate Ben to North York, then purchase or arrange for alternate accommodations in Etobicoke, would be too radical a change for Ben who was already reactive and has been subject to too many significant changes in his life. In addition, the Respondent Father proposed that the child be sent to a private Christian school, where Ethan attended and where the tuition and daycare would amount to $13,000 per year per child. Despite the laudatory practices at this new school and its beneficial pupil /teacher ratio, a move to another school would be too drastic a change for Ben.

[75] Section 24(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: A history of the litigation identified a Mother who undermined or ignored the principles of joint custody and the specific terms of the Joint Custody Order to consult on all issues affecting the child. At each move and each change of schools for Ben, he was a secondary consideration, if at all. Despite Ben’s special needs, she changed residences and Bens schools for the convenience of herself and her other children. Although she generally provided for Ben’s medical needs, her avoidance of taking Ben to see a doctor or to the hospital on or about February 14, 2014, when he suffered a strike to the face by Mr. Marceau, whether it was intentional or not, was indicative that she prioritized concerns about her partner’s culpability, and the inconvenience of a police and CAS investigation, over Ben’s injury. Nor is there any extrinsic evidence that she or the Respondent Father vigorously pursued Ben’s need for psychological counselling before April, 2016. Now that Ben is receiving counselling from New Path, the Respondent Father ought to be engaged with the counselling, and both parties ought to receive a treatment plan for the child which can be implemented by both. The Respondent Fathers presumption that Ben`s behaviour issues will disappear at the new school is speculative; and interruption of the counselling is not in Ben’s best interests.

[76] Section 24(e) - any plans proposed for the care and upbringing of the child: Ms. Williams plan is for Ben to continue residing with her, Mr. Marceau and his step- siblings. She has discussed a behaviour plan with the school Ben attends, in case he has an outburst, and the child recently started counselling with New Path. Mr. Young’s plan is to move Ben to Toronto to live with him and to enroll the child in a new school, as indicated above. As his lease is up in April, his intent would be to move the child a second time. Such a plan is too disruptive to Ben. Two moves and another change in schools will result in an emotional upheaval for Ben.

[77] Section 24(f) - the performance and stability of the family unit which it is proposed that the child will live: Having observed each party and their partners on the stand, I am impressed with the calm presentation by the Respondent Father’s partner and am concerned that the Mother’s partner continues to exhibit explosive behaviour. Although, I am pleased that Mr. Marceau completed a parenting course, his behaviour at trial does not bode well for his parenting of 4 children and enhancing access by the Respondent Father. Ms. Williams deserves a stable relationship for herself and thereby for her children. Even though she has resided with and been engaged to Mr. Marceau for 3 years, she adamantly denies that they are living together. From this adamant denial, the court is left with the impression that their relationship is not stable. In fact, at her examination on March 29, 2016, she disclosed that she and Mr. Marceau separated for one week.

[78] On the other hand, Mr. Young is married to Ms. Young and the two have been together for over five years. During the course of this litigation, Mr. Young was arrested and charged with assault on his stepson as referenced above and has taken a 12 session parenting course. However, his wife and the Toronto CAS worker, Ms. Sosa, testified that the Respondent Father complied with all that was requested of him and that they had no concerns with his parenting. He does get significant support from his aunt and uncle to whom he is close. He has been alienated from his parents, but indicated at trial that he would accommodate reasonable access between Ben and his paternal grandparents, as he knows that such arrangement would be of benefit to Ben.

[79] I am also guided by the factors I must consider as reflected in Gordon v Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, laid out a number of factors for the trial judge to consider.

[80] The first factor to consider is the existing access arrangement and the relationship between the child and the access parent: Ms. Williams testified that in 2013 the Respondent Father did not see the child for 6-8 months. But, the consistency for access by the Respondent Father improved from 2014 to the trial date; and, Ben wants significant and consistent contact with his Father.

[81] The second factor to consider is desirability of maximizing contact between the child and both parents. Mr. Young works in North York and works every other weekend. He sees the child on the weekends he is not working. Mr. Young also only gets 4 weeks of holidays per year. His wife is also employed and works Monday to Friday and leaves the home at 7:30 a.m. and returns by 5:30 p.m. She owns a vehicle which is used by the Respondent Father for pick up and drop off of Ben.

[82] On the other hand, Ms. Williams is employed as a paralegal and works Monday to Friday. Her hours were not identified. Presumably, she works from 9-5 pm. I am not aware of her holidays. She owns and operates a vehicle. Her partner does not operate, nor own a vehicle although he has a license. He uses taxis and or public transportation, or Ms. Williams’ car. In the past, Ms. Williams has exhibited access discouraging behaviour. If documents were not produced as she requested, she would prevent access. If the aunt attended at the school to pick up the child, the Mother would refuse access, unless the Aunt agreed to her terms for drop off (time and place). She has breached the terms of the April 2011 and January 2013 court Orders. She has not provided the Respondent Father with all of his 35 days of lost access because of disagreements about the calculation of the 5:5:4 summer holiday access as per the Order of January 31, 2013. To compensate the Respondent Father for the missed 20 days, she proposed that the Respondent Father be awarded an additional week of holidays in the summers.

[83] The third factor to consider is disruption to the child of a change of custody. The Mother conceded that she started a new relationship with Marceau by March of 2013, and, after April 2013, that the Mr. Marceau relationship developed quickly, without regard to her children. She became pregnant quickly, without regard to her children. She was engaged to Mr. Marceau quickly, without regard to her 3 children. Without any consultation with the teachers at the Hillsburgh School, the Mother once again abruptly moved Ben back to Barrie and registered him at St. Mary’s, his 3rd school in JK. The Respondent Father encouraged her to delay her move until Ben completed his JK in Hillsburgh, as he was concerned that the number of changes were affecting young Ben’s life. Still, the Applicant Mother did not feel that these changes had a negative effect on Ben’s emotional state, despite the fact that, within 2 weeks of registration, St. Mary’s noted Ben’s extreme behaviours. In addition to these various moves and changes of schools and changes of partners, the Applicant Mother, by September 2013, refused to drive to Newmarket for access exchanges; nor did she seek counselling for Ben at any time in 2013. She conceded that Ben did not have access to his Father in 2012 for 4-6 months; and Ben did not have access to his Father in 2013 for 6-8 months.

Credibility

[84] In several instances, the Applicant Mother was less than forthright and her credibility was impeached by her insistence that:

(a) Her partner did not strike Ben as a form of physical discipline, despite the fact that the police and CAS concluded that Mr. Marceau had a history of meting out physical discipline, especially to Ben, and that both Ben and Aadyn told the police and the CAS that they feared Mr. Marceau because he spanked them. She minimized the event by referring to the February 14, 2014, event as: “when Ben fell off the bed” at line 102 of the transcript of her examination dated March 29, 2016.

(b) She and Mr. Marceau did not yell at the children, especially Ben, whereas at cross-examination and reference to the New Path report by Michelle Hodge Brooks, dated July 8, 2014, the report indicated:

“Initially on a scale of 1-10, with 0 being yelling all the time, and 10 being not yelling at all, Shannon, had originally rated this goal as 2 out of 10, and Jason had originally rated this goal as 1 out of 10 feeling that they yelled a great deal of the time.”

(c) With respect to their attendance at the Triple P Primary Care Programme, the Mother attended all sessions whereas, Mr. Marceau attended 3 out of the 4.

(d) The Applicant Mother and Mr. Marceau did not cohabit, despite the overwhelming evidence was to the contrary.

(e) The Mother cancelled her consent for the Ms. Norberg to interview Ms. Angel Vizza, a former daycare provider, citing poor discipline practices by Ms. Vizza and minimizing her fallout with Ms. Vizza over her alleged cancellation of Ms. Vizza’s Rogers account, when the Mother was employed by Rogers; and after an investigation of the issue, the Mother was dismissed by Rogers.

[85] The Respondent Father, on the other hand, was forthright in his evidence and was mostly candid. However:

(a) He refused to acknowledge that he assaulted the Applicant Mother, despite his plea of guilty and his conditional discharge.

(b) He refused to acknowledge that by poking Ethan 4 times in the face, he assaulted the child, despite his plea of guilty.

(c) The Respondent Father had the authority to engage with Ben’s schools, however, he was not proactive in that regard and relied on the Mother’s information, which often was not forthcoming. He could have easily pursued his rights to attend at parent/teacher interviews. He did not do so, stating that the school (St. Mary’s) refused to permit him to be engaged. No extrinsic evidence was provided in that regard.

[86] On a balance, for the above reasons, where there was a dispute as to facts between the parties, I found that the Respondent Father was more credible than the Mother and accepted the Respondent Father’s version of the events.

Sole or Joint Custody?

[87] Having found that a material change in circumstances existed, and taking into considerations s. 24 of the CLRA and the directions of the decision in Gordon v. Goertz, I must address the issue whether, in the circumstances of this case, a Joint Custody Order is warranted, especially where one party, the Mother, in most instances made the ultimate decision with respect to the health, education, religion and extracurricular activities.

[88] One of leading cases on joint custody is Kaplanis v Kaplanis, 2005 CanLII 1625 (ON CA), 249 D.L.R. (4th) 620, where Court of Appeal stated:

The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another…

[89] In the case at hand there is a plethora of evidence that the parties effectively communicated with one another via email. However, the parties’ dispute escalated and was founded on the Mother’s unwillingness to cede any decision making to the Respondent Father. Her unwillingness to engage the Respondent Father in the decision making was viewed by the Respondent Father as an attempt to minimize his role as a parent. Her unwillingness to engage the Respondent Father in decision making was an issue of convenience to her and the rest of the family, and not necessarily in the best interests of Ben.

[90] The communication at exchanges and the communication about decision making were exacerbated by the involvement of Mr. Marceau in the discipline and parenting of Ben, especially in 2013 and 2014. It may be that their relationship has been much improved since Mr. Marceau’s attendance at the Triple P Parenting Programme, such that the observations by Ms. Norberg were to the effect that the interaction between the children, Mr. Marceau and the Mother, was joyous. So, these observations by Ms. Norberg and Ms. Haroon, give me confidence that the situation between the parties, their communication and their exchanges, will improve.

[91] In addition, as in the case of MacKeigan v. Reddick, 2017 NSSC 300, I find it inappropriate when one party intentionally ignores the requirements of a Joint Custody Order, as did Ms. Williams, to reward her with sole custody. She cannot use this willful act as a basis to minimize the involvement of the Respondent Father in the parenting of Ben, especially when sole custody would not be in Ben’s best interests. I find that it is in Ben’s best interests to have both parents involved in the decision making which impacts him.

[92] Accordingly, both Mother and Father shall enjoy Joint custody of Ben.

Residency

[93] Taking into consideration the requirements of s. 24 of the CLRA and the principles enunciated in Gordon v. Goertz, despite my conclusion that joint custody is in the best interests of the child, I must also determine residency of the child.

[94] As indicated by the paediatrician, Ben cannot handle many more changes to his life. A change of the schooling at this time may increase his anxiety and increase his emotional outbursts. Another move to a new residence will require more adjustments for Ben and thereby may increase his anxiety and increase his emotional outbursts.

[95] What Ben needs is a consistent parenting environment in both homes, and frequent and consistent contact by the Respondent Father, unimpeded by Mother’s changes to residency, schools and partners. What Ben needs is for his Father to be proactive at the school. What Ben needs is for his Father to be fully informed about Ben from the educators and all professionals dealing with Ben. What Ben needs are 2 parents who have a free flow of information about his physical and emotional health, such that both of them are confident that Ben is receiving the same approach to discipline and behavioural strategies at both residences.

[96] Given Ben’s attachment to Aadyn and his younger siblings, I cannot change residency of Ben at this time. The residency of Ben shall continue with his Mother. The Mother’s relocation to another home which is of a further distance from the Respondent Father’s home than the current one will require a court Order or written consent from the Respondent Father.

Location of Exchanges

[97] Ms. Carter, in the first OCL report, was prescient. She knew that the issue of transportation was the heart of their conflict: accessibility to functioning cars, public transit, affordability. She recommended that they cooperate to facilitate access by Ben to his Father by meeting half way in Newmarket at the Newmarket Supervised Access Centre in order that the parties avoid conflict at exchanges. With time, the cooperation and exchanges worked until the Fall of 2013, coincident with the Mother’s entanglement with Mr. Marceau and coincident with her vehicle’s road worthiness. In 2011, the Respondent Father was given a $41 reduction in child support to address the cost of either his aunt’s or his transportation to pick up and drop off the child. Such reduction of support left the Mother with the impression that the Respondent Father would pick up and drop off the child in Barrie, despite her changes of residency and despite Ms. Carter’s recommendations.

[98] In addition to the issue of transportation, the exchanges after August of 2013 became problematic because of the heated arguments, at the school and at the home. These exchanges must improve such that Ben does not continue to experience foul and angry language at the exchanges; such that Ben does not continue to experience the attendance of police for the exchanges. It is appalling that Ben’s parents permitted repeated heated exchanges at the school, at the driveway, at Tim Horton’s, in Ben’s presence.

[99] I will not permit this to continue. My Order will limit face-to-face exchanges.

Decision Making

[100] Given that both parties’ dispute was essentially about decision making, as recommended by Ms. Carter, I have determined to divide decision making and to order the implementation of parallel parenting with the best interests of Ben in mind.

CHILD SUPPORT

[101] The Applicant Mother’s evidence is that child support has not been adjusted since 2011 and ought to be adjusted accordingly. It is also clear from the evidence that neither party produced their income tax returns and Notices of Assessment, as required by the April 2011 Order, with respect to the Respondent Father well in advance of trial, and with respect to the Applicant, she did produce her Notices of Assessment but refused to produce her full income tax returns until ordered to do so at trial.

[102] In addition, at no time prior to the issuance of the Motion to Change on September 24, 2013, did either party comply with the April 2011 Order, paragraph 22, which reads:

If there is a requirement to amend the child support order due to overpayment or underpayment both parties consent and agree to the filing of a 14B uncontested notice of motion and motion material requesting the variation of the child support order to accommodate the change in financial situation and will execute all required documents for the variation of the order to be allowed for proper FRO enforcement.

[103] Accordingly, the arrears of child support payable by the Respondent Father shall be from October 1, 2013, to July 31, 2017.

[104] Further, the parties agreed in 2011 that the Respondent Father ought to receive compensation for the cost of travel from North York to Barrie, the sum of $ 41 per month. As there was no strenuous disagreement about this cost, and neither party provided any financial evidence that their family income comparisons would result in an increase or decrease to this monthly support adjustment, I see no reason to eliminate this support adjustment to incentivize the Respondent Father to travel to and from Barrie to exercise access to his son. Accordingly, paragraph 20 of the April 2011 Order shall continue as follows:

Scott’s child support payment will be reduced by $41.00 a month as a result of the increased cost of accessing Ben.

[105] The parties’ incomes are found to be as follows:

Mother Father

2013 $30,012 $46,061
2014 $28,974 $47,175
2015 $12,030 $48,858.71
2016 $40, 768.56 (fs April 2016) $50,651.40 (fs April 2016)

[106] The child support payable by the Respondent Father to the Mother for the support of Ben is as follows, and I so order:

Commencing on October 1, 2013, the sum of $415 – $41 = $374 per month to and including December 1, 2013;
Commencing January 1, 2014 the sum of $425 - $41 = $384 per month to and including December 1, 2014;
Commencing January 1, 2015 the sum of $439 - $41 = $398 per month to and including December 1, 2015; and,
Commencing January 1, 2016 the sum of $456 - $41 = $415 per month to and including August 1, 2017.
Arrears are to be calculated and paid in monthly instalments of $50.00 until paid, subject to paragraph 118 below, commencing August 1, 2017, and on the 1st of the month following, until paid.
The Respondent Father shall produce his 2017 income tax return to the Mother’s counsel within 15 days of the decision and the child support for Ben shall be adjusted retroactive to January 1, 2017, based on line 236 of his income tax return and Notice of Assessment, to and including December 1, 2017.

[107] With respect to the s. 7 expenses, the April 2011 Order was on consent and did not specifically reference the proportional sharing of the s. 7 expenses, instead it reads:

[27] The parties will only contribute to Benjamin’s special or extraordinary expenses if the parties consent to the expenses in advance, in writing. Neither party will unreasonably withhold consent.

[108] Historically, the Mother’s requests for contributions were for 50% of the s. 7 expenses. Given that the Mother is currently fulltime employed and her partner contributes to her expenses in excess of $7000 per year, and does not pay child support for his son, Jaxyn; and, given that she requested and received from the paternal grandparents 50% of the costs of Ben’s music lessons, there is no good reason to deviate from this agreement and practice.

[109] Both parties shall produce his/her annual income tax return and Notice of Assessment to one another on or before August 1st, 2017, and on the 1st of August each year subsequent for the purposes of adjusting child support retroactive to January 1st of each year.

RESPONDENT FATHER’S ALLEGED OVERPAYMENT OF $1500

[110] The Court Order of April 06, 2011, paragraph 25, reads as follows:

[25] Regarding the alleged $1500 overpayment of child support, the Applicant Mother shall review Tab E of the Respondent Father’s settlement conference brief returnable April 6, 2011 and will provide written confirmation to the Respondent Father’s counsel of all her payments received from the Respondent Father and from FRO, and if she alleges payment from the Respondent was for something other than child support, she needs to detail source and provide the Respondent Father’s counsel with explanation. If the parties dispute the $1500 issue then either party may apply to court upon motion to have the Court determine same.

[111] On November 29, 2011, the Respondent Father issued a Notice of Motion, returnable December 8, 2011, wherein at paragraph 5 he made the following claim:

[5] An order that the Family Responsibility Office provide credit to the Respondent Father’s account number #075 553 9 in the amount of $1,500 m lieu of child support to be credited to the Respondent Father either by lump sum or by monthly credit instalments in increments of $300 a month, due to her breach of paragraph 25 Justice Olah’s April 6, 2011 order;

[112] Although served on both the Applicant Mother and her counsel, Brian Bond, it appears that the matter was dealt with on December 08, 2011, by Justice S. Healey, wherein she indicated that: “The relief sought at paras 2.3.5.7.and 8 of the motion may proceed on a date in January and be fixed by the T/C”.

[113] On February 2, 2012, the motion was not heard and the matter was adjourned on consent to a date to be determined by the trial coordinator.

[114] A Motion for Contempt was issued and was returnable on January 31, 2013, when the parties executed Minutes of Settlement. It is not clear from the Minutes of Settlement or Justice McCarthy’s order whether the parties addressed paragraph 5 of the initial motion with regard to the $1500.

[115] In any event the parties produced exhibits regarding the $1500 and were questioned on the issue. Ms. Williams’ evidence was to the effect that the issue of the $1500 was resolved in the April 2011 Order at paragraph 29 which reads as follows:

[29] All other issues in court file FC-08-375-02 are withdrawn by both parties with prejudice.

[116] I cannot agree with her interpretation, given that the issue was squarely referenced in paragraph 25 of the April 2011 Order.

[117] On the other hand, she argues, that she provided the Respondent Father’s counsel on March 16, 2012, a facsimile transmission containing her handwritten explanation of the monies overpaid or owing. She conceded payments by the Respondent Father to her for Christmas as she was on welfare; in January for Ben’s birthday party; in February for her to do something special for herself; and the rest of the payments were for a TV and 2 wall units which were broken during their cohabitation. The Respondent Father denies that he made the payments for anything other than child support. She acknowledged receiving these amounts and refuses to characterize them as child support. I prefer the Respondent Father’s evidence on this issue.

[118] Accordingly, I find that there was an overpayment by the Respondent Father to the Applicant Mother for child support, the sum of $1500, which shall be credited against any arrears of child support as calculated above, and I so order .

MOTION FOR CONTEMPT

[119] As indicated above, the April 2011 Order was allegedly breached by the Applicant Mother such that the Father issued a motion to address this issue on November 29, 2011. Justice Healey permitted the Respondent Father to bring a Motion for Contempt on the alleged breaches contained in the November 29, 2011, motion. He did so by issuing a Motion for Contempt which resolved on January 31, 2013, by way of Minutes of Settlement, the Applicant Mother conceding the breaches and consenting to 35 days of additional access to the Father to make up for his lost access in 2011 and 2012.

[120] The Minutes of Settlement and the Order of January 31, 2013 at paragraph 7 reads as follows:

[7] Costs to the Respondent Father for this motion, the amount and enforcement of said cost is reserved in the event the Applicant Mother is found in contempt for a future event to the judge hearing the next court appearance between the parties.

[121] On June 2, 2014, the Respondent Father issued a second Motion for Contempt against the Applicant Mother, citing the following breaches:

By refusing the Respondent Father access to Benjamin, contrary to paragraph 7 of the final Order of Justice Olah dated April 6, 2011; paragraph 7 dealt with the Respondent Father’s access to Benjamin on alternative weekends form Friday at 10 am to Monday at 10 am until Ben is registered and attending school, at which time, access will be from end of school day on Friday until between 6 and 8 pm on Sunday.
By engaging in verbal communication during access drop offs and pickups, contrary to paragraph 14 of the final Order of Justice Olah dated April 6, 2011; At access drop-offs and pick-ups there will be no verbal communication; and,
By refusing to arrange suitable make up times if the Respondent Father was not able to spend his scheduled time with Benjamin because of illness or employment responsibilities, contrary to paragraph 16 of the final Order of Justice Olah dated April 6, 2011.

[122] The breaches identified in the affidavits for the second Motion for Contempt, with greater specificity are; May 30, 2014, weekend; May 3, 2014 weekend.

[123] On the May 3rd, 2014 weekend, the aunt and Respondent Father attempted to pick up Ben from the Mother’s residence. Because the previous time, the Applicant Mother refused the aunt to pick up the child and refused to add the aunt as the Father’s designate for pick up from the school. On this occasion, the Respondent Father used his telephone to video the exchange to which Mr. Marceau and a third party took exception. The Applicant Mother called the police while Mr. Marceau swore at the Respondent Father and was verbally aggressive. The police were called and the exchange took under 1 hour. Although inconvenient, this event did not represent a specific breach of a court order.

[124] On the May 30th, 2014 weekend, both the aunt and Respondent Father were proceeding to pick up the child at school at 3:00 pm, when there was a disagreement about the drop off time on Sunday, whether 7:00 p.m. as per the April 2011 Order, or the 5:00 p.m. as per the McCarthy J. January 31, 2013 Order. The Applicant Mother refused access to Ben unless the aunt agreed to juggle her work schedule and bring Ben at 5:00 p.m. The police facilitated this accommodation by the aunt. Given that the Mother had moved from Hillsburgh to Barrie, and given that the McCarthy J. Order was crafted with Ben’s residence in Oro, the Respondent Father and aunt’s position with respect to the default order being the April 2011 Order, was reasonable. Although inconvenient, this event did not represent a specific breach of a court order.

[125] The second Motion for Contempt, in part, was settled as per the Order of Justice McDermot, dated June 5, 2014, as follows:

On a without prejudice basis, paragraph 13 of the Final Order of Justice Olah dated April 6, 2011 shall be amended to reflect the following:

(a) During the school year that the child; namely, Benjamin Williams-Young, D.O.B. January 27, 2008, is in school, the Respondent Father, or Amy Jutras or Gerard Jutras shall pick up the child from the kindergarten pick up area by the end of the school day, at the commencement of his access;

(b) During the school year, and the summer vacation, and subject to the parties’ holiday schedule as stated in Justice Olah s Order dated April 6, 2011, the Respondent Father shall drop off the child at the Tim Horton s located at 3 Sarjeant Drive, Barrie. Ontario, L4N 4V9. At 7:00 p.m., at the conclusion of his access; and,

(c) During the summer vacation, the Respondent Father shall pick up the child at the Tim Horton’s located at 3 Sarjeant Drive, Barrie, Ontario L4N 4V9 at 11:00 a.m.

Neither party will do any action, behaviour or make any comments stating his or her unwillingness regarding either party accessing the child for the purpose of pick up and drop off.
The parties shall allow the Respondent Father’s aunt and uncle to be added to the child’s school list as individuals who may pick up and drop off the child to and from school.
The remaining issues in the contempt motion of the Respondent Father shall be adjourned sine die.
Costs of today (June 5, 2014) are reserved to the Judge presiding over the contempt motion or the Trial Judge.

[126] By the McDermot June 5, 2014 Order, the Applicant Mother conceded that she refused access to the Father when the aunt or uncle were picking up the child from school (September 2013 and from January 2014 to the date of the Order dated June 5, 2014) and consented to their addition to the Father’s designate list on June 5, 2014.

[127] By the McDermot June 5, 2014 Order, the issue of the pickup and drop off was changed to the school on Friday at the end of the school day, say 3:00 p.m. and the drop off was at the Tim Horton’s at 7:00 p.m.

[128] Yet, by July 3, 2015, because the aunt had not returned the child as per the McDermot J. Order at 11:00 a.m., the Applicant Mother contacted the aunt on her cell phone (Bluetooth) and berated the aunt, who was en route back to Barrie with Ben. Unfortunately, Ben heard the Applicant Mother yelling and berating the aunt for being late, contrary to the terms of Justice McDermot’s Order at paragraph 2.

[129] Paragraph 13 of Justice McCarthy’s Order referenced that when the Applicant Mother resided in Hillsburgh the exchange location was to be at the Bramalea Go Stop. When she relocated back to Barrie in mid-April 2013, she agreed to have the access location changed to the Newmarket Bus station. On or about August 25, 2013, she put the Father on Notice that she would no longer agree to the Newmarket exchange location such that the Father had no access to Ben from the end of August 2013, for an extensive period of time.

[130] With respect to the order of Justice McCarthy, paragraph 6, the Mother and Father agreed that he did not receive his full 35 make-up days, as the Mother had a different calculation of the McCarthy J. summer access order (4 as opposed to 5 days) and the Mother suggested that in any event, the Father could not make up 35 days from 2013 to 2016 because his employer would not permit him the extra vacation days required to complete the 35 extra days. Her evidence lacked specificity and she could not identify how many days were remaining, if any, of the 35 make up days. On the other hand, the Father specifically indicated at trial that what was still owing under paragraph 6 was 20 days, having utilized 15 days of the 35 makeup access days. As before, where there is a serious conflict on facts between the parties, for reasons expressed above, I prefer the evidence of the Father to that of the Mother on this point. The Applicant Mother is found to have specifically breached paragraph 6 of the McCarthy J. Order.

[131] At trial, further instances of breaches of the January 31, 2013 Order were provided, namely;

Paragraph 2 of the Order of April, 2011:

The Mother conceded that she did not change the child’s name to Williams-Young, requiring the Father to do so. Certainly, the evidence is that after January 31, 2013, the Mother chose to ignore the child’s full name for various registrations, whether at daycare and OHIP health card. The Father proved the breach of this clause. This paragraph was clear and unequivocal. The Applicant Mother was in contempt of paragraph 2 of the Order of April 6, 2011.

Paragraph 3 of the Order of April, 2011:

The Mother conceded to the OCL’s that she preferred making the ultimate decisions about the welfare of the child Ben. Her actions supported her preference in that she did not consult and refused to provide the Father with Notice of the eye doctor appointments ; her unilateral change of public school to a catholic school without consultation; her unilateral change in schools for Ben; her unilateral change of access locations and times; refusal to permit Aunt and Uncle to pick up Ben; her refusal to advise the Father of Ben’s behavioural problems and what behavioural plans were created for him; refusal to consult about change in registration in daycare. Any last minute efforts to advise, certainly prevented any adequate consultation and appropriate decision making for Ben. This paragraph was clear and unequivocal. The Applicant Mother was in contempt of paragraph 3 of the Order of April 6, 2011

Breach of paragraph 6 regarding a communication log, was not proven beyond a reasonable doubt, given the fact that the parties agreed and did communicate though emails, of which volumes were produced at trial.
Proof of a breach of paragraph 7 is problematic. There is no doubt that the changes in residences caused havoc to the April 2011 Order and that the Father was not able to access Ben, as contemplated by the April Order for 6-8 months in 2013. She relocated within 2.5 months of the January 31, 2013 Order and initially proffered Newmarket as an exchange, to which the Father agreed. Her refusal to accommodate the Father and his aunt and uncle, from September 2013 to June 5, 2014, is reflective of bad faith and a lack of concern about the child’s emotional state. The Applicant Mother described this period and the period in 2013 and 2014 as a hiatus in access for which the Respondent Father was solely responsible. However, she knew how important access to his Father was for Ben, and she had a road worthy vehicle after September 2013; and, she was aware of the attachment Ben had to Aunt Amy and Uncle Jerry, yet she refused to permit them to participate in the pick up at school, until June 5, 2014. But, it is not just the Mother’s actions which caused the access difficulties, as the Father did not have access to a vehicle and was required to engage his aunt and uncle in the exchange process. He knew that public transportation between North York and Barrie would make access most difficult for Ben. Because of the above circumstances, I cannot find, beyond a reasonable doubt, that the Mother breached this particular clause of the order.
Proof of breach of paragraph 10 is problematic: There was some early correspondence between the parties, especially initiated by the Mother where access changes were made to accommodate one another’s need to attend special events, i.e., Celebration of Life, when the Mother could not care for the child. But, such requests for care of Ben with the necessary accommodation after September, 2013, did not occur because the Mother used her partner as the de facto caregiver, ousting the Father’s opportunity to care for Ben. Nevertheless, the Respondent Father did not prove, beyond a reasonable doubt, on which days he was available to apply paragraph 10 after January 31, 2013, such that I could find that the Mother was in breach of this paragraph 10.
Proof of breach of paragraph 11 is problematic: I agree with the Applicant Mother’s counsel that this clause is confusing. One wonders whether the first sentence of the paragraph is qualified by the examples in the second sentence, or whether it is a standalone sentence, encouraging relocations. In any event the Applicant Mother argued that she had been very flexible and reasonable throughout, whereas the evidence was to the contrary. Surely she cannot use this clause to explain her many moves of residency which moves impacted on the emotional wellbeing of Ben. If she interpreted this clause to suggest that her many moves underscored her flexibility for the benefit of the child, I disagree. This child needed less flexibility and more stability. Nevertheless, given the confusion in the drafting of this clause, a breach of paragraph 11 has not been proven beyond a reasonable doubt.
Proof of breach of paragraph 13 is problematic: This paragraph reflects the exchange location in Barrie at the end of the Applicant Mother’s driveway. However, since April 2011, the Mother had several relocations from the Stanley St., Barrie location (Oro, Hillsburgh, Barrie); and paragraph 13 of the April 06, 2011 Order was amended by paragraph 3 of the McCarthy J. January 31, 2013 Order as follows:

Paragraph 13 of the final Order of Justice Olah dated April 06, 2011 shall be amended to reflect that the Applicant Mother resides in her current address in Hillsburgh, the pickup and drop off location for the purpose of access shall be at the Bramalea Go Stop

In my estimation, pending further Order, the default order of April 2011 governed, but it was subject to any written agreement that varied the 2011 Order, i.e., Newmarket, from which exchange location the Mother resiled. As a result of this confusing state of affairs regarding access exchange locations and time of pick up and drop off, I cannot conclude beyond a reasonable doubt that the Mother was in breach of paragraph 13 of the 2011 Order.

Proof of breach of paragraph 14 is problematic: This paragraph deals with verbal communication at access exchanges. The Applicant Mother submitted that both parties had verbal communication at access exchanges. But, the Father has proven that Mr. Marceau certainly had heated verbal exchanges at access exchanges, especially at the Tim Horton’s and at the end of the Williams’ driveway; yet Mr. Marceau is not a party to the action. Accordingly, the Respondent Father has not proven, beyond a reasonable doubt, that there has been a breach of paragraph 14 by the Applicant Mother.

[132] Despite my finding that the Applicant Mother was in breach of the April 2011 court Order, and in breach of the court Order of January 2013, as referenced above, the Applicant Mother submitted that all of the issues have been purged and in the interests of moving forward, I ought to disregard any contempt findings.

[133] I cannot agree with such a suggestion. Where I have found that the Order was clear and unequivocal, and where I have found that the Mother breached an order willfully and deliberately, and where I have found that she did so beyond a reasonable doubt, I am obligated to ground a finding in contempt. I agree with the decision in McMillan v. McMillan, 1999 CanLII 14982 (ONSC) at para. 31, where it was stated:

Our system of justice cannot and should not tolerate the deliberate disobedience or defiance of a court order. The protection of the administration of justice requires that such conduct be dealt with appropriately. Civil contempt proceedings are also intended to bring about compliance with past or future orders of the court.

CONCLUSION

[134] I have made the following findings:

(1) Both parties have established a material change of circumstances affecting the child since the Order of April 06, 2011, which was significant.

(2) Although the parties often exhibited an ability to effectively communicate with one another regarding Ben, they failed to consult on issues affecting Ben’s wellbeing, as a result of which they did not effectively make decisions affecting the wellbeing of Ben.

[135] Having regard to the evidence presented regarding s. 24 CLRA, considerations of the best interests of Ben; and having regard to the principles enunciated by the Supreme Court of Canada in Gordon v Goertz, I make the following Order:

ORDER

Unless specific paragraphs are hereinafter referenced, the Order(s) of Justice Olah, made on April 6, 2011, Justice McCarthy, made on January 31, 2013, and Justice McDermot, made on June 5, 2014, shall be replaced with an Order as set out below:

Parenting

The parties shall enjoy joint custody of the child Benjamin Williams-Young, born January 27, 2008, in a parallel parenting regime as follows:

(a) The child shall reside primarily with the Applicant Mother;

(b) The parties shall consult with one another on all major issues affecting the wellbeing of the child, including his health, his education, his religion and his extra-curricular activities. This consultation shall be timely, fulsome and initially by way of e mail correspondence;

(c) The Applicant Mother’s relocation to another home which is of a further distance from the Respondent Father’s home than currently will require 30 days’ notice and a court Order or written consent from the Respondent Father. If she intends to relocate, she must provide 30 days’ notice, and failing agreement, the matter is to be referred for a judicial determination; and,

(d) Both parties may attend the child’s activities with their respective families, and neither parent will interfere with the other parent having some time with the child at the event.

The Respondent Father shall have parenting time with the child, pursuant to the following schedule:

(a) Alternate weekends from Friday after school to Monday at 8:30 a.m. at school, unless Monday is a holiday, then to Tuesday at 8:30 a.m.;

(b) While at school, (currently Monsignor Claire) between September and June, pick up shall occur at the end of the school day on Friday by the Respondent Father or his designates: Aunt Amy, Uncle Jerry, his wife Leslie or either or both of the paternal grandparents. The coordinates (telephone, cell phone, address) for each designate and the Father to be provided to the school, and the daycare provider, and to the Mother. Neither the Father, nor any of the designates, require the consent of the Mother to pick up Ben, at school’s end, or from daycare.

(c) While at school, between September and June, the drop offs of Ben shall be by his Father or his designate(s) to the school on Monday morning at 8:30 a.m., or on Tuesday at 8:30 a.m. if Monday is a holiday;

(d) In the event of a traffic or weather delay in the pick up or drop off of the child, the Father or his designate(s) is/are to contact the school, and the Mother and advise the school and the Mother of the estimated time of arrival, and arrange for an alternate pick up or drop off time, and if necessary, an alternate exchange location, say at the daycare. The Father’s designate coordinates are to be provided to the daycare as (b) above.

(e) On non-school days for pick up or return, and during the summer holidays, the pick up or return shall be at the Barrie Supervised Access Centre. Each party to complete their Intake Forms within 2 weeks of this Judgment and provide a calendar to the Supervised Access Centre of the days on which such exchanges to occur.

(f) The alternate weekend access schedule by the Father is to coincide with the Father’s work schedule.

(g) The Father shall have either telephone, Skype or Facetime access to Ben on each Tuesday, Wednesday and Thursday at 7:00 p.m. or at a time agreed to in writing by the parties, as well as telephone, Skype or Facetime access with Ben on the Sunday of the weekend that he does not have access, at 7 p.m.

(h) If the Easter holiday falls on the either party’s scheduled weekend that party shall enjoy the extended weekend with Ben, unless the parties agree otherwise in writing.

(i) Mother’s Day: If the child is not otherwise with the Applicant Mother on this weekend, the child shall reside with the Applicant Mother from Sunday at 10:00 a.m. until the child’s return to school on Monday; the drop off of the child shall be at the Newmarket Bus and Go Station, near Eagle Street.

(j) Father’s day: If the child is not otherwise with the Respondent Father on this weekend, the child shall reside with the Respondent Father from the Sunday at 10:00 a.m. until the child’s return to school on Monday; the drop off of the child shall be at the Newmarket Bus and Go Station, near Eagle Street; and then the Respondent Father shall return the child at school on the Monday morning.

(k) Victoria Day Weekend: If this weekend falls on either party’s scheduled weekend, that party shall enjoy the extended weekend with Ben, unless the parties agree otherwise in writing;

(l) March Break: The child shall reside with the Applicant Mother in even numbered years and the Respondent Father in odd numbered years from after school at 3:00 p.m. and return on the Sunday before the return to school, at 7:00 p.m. The exchange for the March break return shall be at the Supervised Access Centre, Barrie.

(m) Thanksgiving Break: If this holiday break falls on either party’s scheduled weekend, that party shall enjoy the extended weekend with Ben, unless the parties otherwise agree clearly in writing.

(n) Summer Vacation: Benjamin shall reside with the Applicant Mother and the Respondent Father for a total of 4 weeks (a week comprises of seven (7) consecutive days) each during the summer vacation (July and August months). The Applicant Mother will select her 4 weeks summer vacation first during even numbered years and the Respondent Father his 4 weeks summer vacation first during odd numbered years. The parties agree to provide these dates, in writing, by March 1st every year.

(o) Halloween: Halloween will be in accordance with the regular access schedule. The party who has the child on a Halloween weekend shall provide the child a costume.

(p) Christmas and New Year’s: The parties shall share equally the total number of days in the child’s regularly scheduled Christmas Break, including weekend days. The child shall reside with the Respondent Father for the first half of the break in even numbered years and with the Applicant Mother in odd numbered years. The first half will start at 3:00 p.m. on the child’s last day of school in December with pickup at the school. The exchange shall take place at 7:00 p.m. at the Barrie SAC on the last day of the first half of the break. If the access exchange day falls on December 25th, then the access exchange date shall be moved to December 26th at 12:00 noon at the Barrie Supervised Access Centre. The last half of the break will end on the evening before Ben returns to school in January at 7:00 p.m. This exchange to occur at the Barrie Supervised Access Centre.

(q) Benjamin’s Birthday: In accordance with the regular access schedule.

(r) All Other Holidays: To be spent in accordance with the regular schedule. If a holiday falls during the weekend an extra day will be added to the weekend access, except if otherwise herein indicated.

(s) The Mother shall advise the Respondent Father in writing, of any medical, psychological, counselling, therapy and dental appointments, for Ben, within 7 days advance notice of such appointments, unless an emergency, and consult, such that the Respondent Father may attend such appointments. Should there be a recommended treatment by any of the above professionals, in the absence of the Respondent Father, the Mother is to consult with the Father within 14 days of such recommended treatment; and failing written agreement by the Father, the Mother shall have the ultimate decision-making authority in that regard. Further, the Mother shall inform in writing the names, addresses and telephone numbers of each professional engaged with Ben and forthwith provide a written authorization and direction to each professional such that the Father may contact the professionals to discuss their treatment proposals. The execution and delivery of such authorizations and directions to the Father and the professionals, shall be completed and sent within 14 days of this Order, and the Applicant Mother shall file an Affidavit of Service of same with the court, to the attention of this file.

(t) Neither party shall remove Ben from Monsignor Claire school, without leave of this Court; or written consent of both parties. The Mother shall execute an Authorization and Direction to the school to enable the Father to have continued contact with Ben’s Principal, and teachers, attend parent/teacher interviews via prearranged Skype, facetime or telephone conference, as arranged with the school. The Father shall also request of Ben’s school that all correspondence, documents, report cards regarding Ben to be remitted to him by facsimile transmission or e mail ( scanned documents), or mail and shall provide the school with his coordinates in that regard. The Father shall be at liberty to attend any school function involving Ben. In particular, the school/Principal shall provide to the Father any behaviour modification plans instituted by the school for Ben. The Father’s name shall be reflected in the school records as a contact person in the case of an emergency affecting Ben. With respect to decision making regarding Ben’s education the parties shall consult with each other by e mail. In the event of an impasse after meaningful consultation, the Father shall have the final decision – making authority, subject to neither party removing the child Ben from Monsignor Claire without leave of this Court; or written consent of both parties.

(u) If the school requires the child’s baptism, confirmation or First Holy Communion, so long as the chid is enrolled at Monsignor Claire, neither will impede the school’s requirement for the child’s participation in such Roman Catholic rites. Should the child, at any time, be required to enrol in a non-Catholic school, then the parties shall consult with each other on the religious issue, and in the event of an impasse after meaningful consultation, the Father shall have final decision-making authority on matters involving religion.

(v) Extracurricular activities: The parties shall consult with one another on matters regarding proposed extracurricular activities, and in the event of an impasse after meaningful consultation; the Mother shall have the final decision-making authority involving extracurricular activity (ies) regarding Ben. Parties will only contribute to Benjamin’s special or extraordinary expenses if the parties’ consent to the expenses in advance, in writing. Neither party will unreasonably withhold consent. Both parties understand that the s. 7 expenses must be reasonable and necessary. Once agreed, the parties shall share the cost of the extracurricular activities on an equal basis.

Communication

At present communication between the parties shall be done by email, unless a written agreement is executed which will provide for other means of communication.
Both parties to engage in personal counselling with a view to improve their communication and decision skills such that, with written consent, they can also communicate by telephone and ultimately engage in face to face communication.
Neither party shall speak negatively about the other party in the child’s presence, and both shall make their best efforts to prevent all third parties from doing so as well. Furthermore, neither party shall discuss this court case or other adult issues involving the parties with the child.

Other

Passport: Any passport obtained for Benjamin shall be in Benjamin’s name only. The Respondent Father shall take primary responsibility for renewing Benjamin’s passport for Benjamin, and the Applicant Mother shall provide her timely consent and written authorization. Renewal of Benjamin’s passport shall occur no later than one month prior to its expiration and said passport shall be kept by the Respondent Father but provided to the Applicant Mother for travelling with Benjamin. Upon 14 days written notice, the Respondent Father will provide the Applicant Mother with the passport on the date the Applicant Mother picks up Benjamin for the trip, and the Applicant Mother will return said passport within 3 days from her return of any trip. The Respondent Father will provide the Applicant Mother with clear photocopies of Benjamin’s passport.
Birth Certificate: The Applicant Mother shall have the original copy of Benjamin’s birth certificate; and, she will provide the Respondent Father with clear photocopies of Benjamin’s birth certificate.
Medical Health Card (OHIP): The Applicant Mother shall have the original copy of Benjamin’s health card; however, the original health card shall travel with the child for his parenting time with the Father and the Mother. The Applicant Mother will provide the Respondent Father with clear photocopies of Benjamin’s health card.
The Respondent Father and the Applicant Mother shall keep each other advised of their current address and telephone numbers.
When a parent has accepted an invitation to a birthday party on Benjamin’s behalf, on 7 days’ notice to the other parent, that parent shall have the responsibility to bring Benjamin to the party; return Benjamin to the custodial parent and to purchase the gift for it.
The Applicant Mother and the Respondent Father shall provide one another with necessary information by email regarding Benjamin’s activities and lessons, regardless of whose time the activity/lesson falls on.
Any of the terms of this Order may be varied by the parties by written consent of both parties.

Travel

If either parent plans a vacation out of town with Benjamin on his or her scheduled vacation time, that parent shall give the other a detailed itinerary three (3) weeks before it begins, including the names of any flight carriers, flight times, accommodations, including addresses and telephone numbers, people traveling on the trip, and details as to how to contact Benjamin during the trip;
For travel outside of Ontario and/or Canada, each parent shall provide the other with written consent 60 days prior to the date of departure, in the form of a notarized letter, for the purpose of satisfying customs/immigration authorities, such consent not to be unreasonably withheld;
Benjamin shall have contact with the non-traveling parent regularly during any period of travel. The parents shall agree on the times and days for these calls one week prior to the trip;
Benjamin shall be permitted to withdraw from school for the purpose of the vacation travel, only with the consent/approval of the school.

Child Support

The child support payable by the Father to the Mother for the support of Ben is as follows:

(i) Commencing on October 1, 2013, the sum of $415 – $41 = $374 per month to and including December 1, 2013;

(ii) Commencing January 1, 2014, the sum of $425 - $41 = $384 per month to and including December 1, 2014;

(iii) Commencing January 1, 2015, the sum of $439 - $41 = $398 per month to and including December 1, 2015;

(iv) Commencing January 1, 2016, the sum of $456 - $41 = $415 per month to and including August 1, 2017.

(a) Arrears are to be calculated according to the above, and the Respondent Father is to be given a credit for any support paid during this period, and, subject to providing the Respondent Father with a credit of $1500 against any arrears owing, the arrears shall be paid in monthly instalments of $50.00 until paid, commencing August 1, 2017 and on the 1st of the month following, until paid.

(b) The Father shall produce his 2017 Income tax return to the Mother’s counsel within 15 days of the decision and the child support for Ben shall be adjusted retroactive to January 1, 2017 based on line 236 of his Income tax return and Notice of Assessment, to and including December 1, 2017.

(c) The parties shall exchange copies of their respective income tax returns with all attachments by June 1 of each year and any notices of assessment and reassessment as they receive from the CRA.

(d) The Respondent Father’s child support payment will be reduceed by $41.00 a month as a result of the increased cost of accessing Ben.

Section 7 Expenses

The parties shall share the child’s agreed upon Section 7, special, or extraordinary expenses equally. Consent for same shall not be unreasonably withheld. The parties shall exchange receipts for same and the other party shall pay their half share forthwith and not later than 30 days after receiving proof of what was paid.
A Support Deduction Order shall issue.
This order bears post-judgment interest as the rate of ____% per annum effective from the date of this Order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.

Costs

[136] As the Applicant Mother was held in contempt of the April 06, 2011 Order and contempt continued after the January 31, 2013 Order, submissions as to the costs with respect to the June 2012 Contempt Motion argued at trial, and the costs of the Motion for Contempt dated January 31, 2013, together with respect to the costs of the trial will be addressed in written submissions, unless otherwise agreed, to be provided to the court, to the attention of my assistant by way of email in Word format, at patricia.haza@ontario.ca. Costs submissions to be no longer than 5 typed pages, double spaced, to be accompanied by attached Offers to Settle and Bill of Costs, within 30 days of the issuance of the Judgment; and by the filing of same with the Courts Administration to the attention of this file.

OLAH J.

Released: August 11, 2017

Shannon Williams v. Scott Young, 2017 ONSC 4857

Case Summary