Court File and Parties

Court File No.: FC-11-1862-3 Date: 2018-11-09 Ontario Superior Court of Justice

Between: Macedoine Nduwayo, Applicant And: Josephine Muhonga, Respondent

Counsel: Self-Represented, for the Applicant Concillia Muonde/Huyen Tran, for the Respondent

Heard: September 24, 25, 26, 27, 28, October 1, 2, 3, 5, 9 and 10, 2018

Reasons for Decision

Audet J.

[1] This is a Motion to Change brought by the applicant father, Mr. Macedoine Nduwayo (“the father”), seeking an order granting him sole custody of the parties’ three children, ages 7, 12 and 15, with primary residence to him and regular access to the mother. He also seeks reimbursement for one half of a loan contracted by the parties in relation to the family’s immigration to Canada in 2008, which he has assumed on his own since the parties’ separation.

[2] The respondent mother, Ms. Josephine Muhonga (“the mother”), seeks the dismissal of the father’s claims, an order that access between the children and their father be at her sole discretion, child support including a contribution towards the children’s special and extraordinary expense retroactive to October 2013, a restraining order, various orders related to parenting, as well as an order precluding the father from bringing any further motion to change without leave of the Court.

[3] This Motion to Change was heard by way of a trial over a total of 11 days.

[4] For reasons detailed below, I dismiss the father’s motion and grant the mother most of the relief she is seeking.

Background

[5] The parties began cohabitating in 2003, while they were both living in Burundi. Their first child, Promise, was born on October 17, 2003. She is presently 15 years of age. The parties were married in Uganda in November 2004, following which the mother gave birth to the parties’ second child, Marvellous, who was born on April 17, 2006 and who is currently 12 years of age.

[6] The family immigrated to Canada in April 2008 and established themselves in Windsor, Ontario. A few months later, in October 2008, they separated. On or about that time, the father moved to Edmonton, Alberta. On February 26, 2009, Justice Kowalyshyn made a final order granting the mother sole custody of the parties’ two children. The father was not present during this hearing, nor did he defend the court application. The father had no contact with the children while he was living in Edmonton (roughly two years).

[7] In September 2010, the father returned to Windsor and the parties reconciled for a brief period of time. It is during this brief period of reconciliation that the mother became pregnant of Divine Chance (“Chance”) who was born on July 19, 2011. In December 2010, while the parties were still reconciling, the father convinced the mother to move to Edmonton with him and the children. Unbeknownst to the mother, while he lived in Edmonton the father had obtained a divorce order on August 23, 2010, from the Alberta Court. Although the mother was not aware of, and did not participate in, the Alberta divorce proceedings, and for reasons unknown to me, the final divorce order granted sole custody of Promise and Marvellous to the mother with no access to the father.

[8] Very shortly after the mother moved to Edmonton with the children to be reunited with the father, she found out that the parties were divorced. Shortly thereafter, the relationship broke down for a final time and the mother returned to Ontario with the children to establish her residence in Ottawa. Not long after, the father brought a Motion to Change in Ontario seeking access to and custody of the children. The mother defended the claim and the matter ultimately resulted in a trial which was held before Justice Smith in May 2013 in Ottawa. His decision was released on September 6, 2013 (the “2013 Order”), and granted the mother sole custody of the three children with graduating access between the children and the father which, over the course of a few months, was to settle at every second weekend, from Friday after school until Monday before school, including extra days during holidays.

Justice Smith’s 2013 Final Order

[9] During the course of the trial before me, the father made several attempts to challenge the factual findings made by Justice Smith back in 2013. I had to explain to him on several occasions that it was not open to me to challenge or vary Justice Smith’s factual findings. Of note for the purpose of the issues that are before me in this trial are the following findings of facts made by Justice Smith in 2013:

• The father convinced the mother to sign a document purporting to give the parties joint custody of the children under the false pretense that it was a document simply confirming their reconciliation.
• The father, during the course of the trial, submitted affidavits from three witnesses which the mother alleged had been surreptitiously modified by the father. When requested to call these witnesses during the course of the trial, the father chose to withdraw those witnesses’ affidavits. This led Justice Smith to draw an adverse inference with regards to the father’s credibility.
• The father, since the parties’ first separation in October 2008, had spent much more time in Edmonton than with his children and had never been the primary caregiver for the children. Further, the father only had limited contact with the children, including supervised access in 2012, but had had no access with the children since 2012.
• The father lacked credibility and, in addition, he had modified documents on two occasions.
• Justice Smith accepted the mother’s testimony to the effect that the father had threatened her and been violent towards her during their cohabitation.

Motion to Change

[10] On February 12, 2014, five months after Justice Smith’s Decision was released, the father filed his Motion to Change. In his Change Information Form, the father claimed that sole custody to the mother was not in the children’s best interests, that Justice Smith had made factual and legal errors, that the children were being abused and neglected by their mother, that the children suffered from anxiety of being abandoned by both parents and that the mother lacked human dignity and cooperation. The affidavit of service filed by the father at the time, reportedly sworn by a friend, confirmed that special service had been effected on the mother.

[11] At the first appearance in this matter which took place on April 29, 2014, the mother did not appear nor had she filed a Response to the Motion to Change. In her endorsement of that date, the First Court Date Clerk stated that a case conference had been suggested, however, at the insistence of the father, the matter was adjourned to an uncontested trial to be heard on July 28, 2014. For reasons unknown to me, nothing happened in this file until November 10, 2015. On that day, the father brought a motion for substantive relief (presumably seeking an order for custody) without notice to the mother. The Court refused to deal with the motion and ordered the father to serve his motion materials on the mother.

[12] A case conference was held on February 18, 2016 before Master Champagne (as she then was). Once again, the mother did not attend nor did she file any materials. The case conference was adjourned to March 3, 2016, with clear directions to the father to serve the Notice of Case Conference and his Case Conference Brief on the mother, and that if she failed to appear, the father could proceed with an uncontested trial.

[13] On March 3, 2016, the mother, once again, did not appear in court despite an affidavit of service having been sworn by the father confirming that he had served her with his Notice of Case Conference and Brief personally. At the time, the father represented to the Court that the mother had told him that she was not interested in participating in the proceeding. Given the nature of the relief sought by the father, and out of concern that the mother might not understand what the Court proceeding was about, Master Champagne ordered the mother to appear before her on March 17, 2016.

[14] The March 17, 2016 case conference had to be adjourned as a result of the March 3, 2016 Order not having been translated into French as requested by Master Champagne (it was understood at the time that the mother’s first language was French). During the hearing, Master Champagne requested that the father return before her at 11:00 a.m. that day to confirm the mother’s address, so that the court staff could send her a copy of the translated order. However, the father did not return as ordered to confirm the mother’s address. Instead, he went to the family counter that day and scheduled the matter again for an uncontested trial. When this was brought to the attention of Master Champagne by the counter staff, she cancelled the uncontested trial date and ordered that both parties attend before her on May 12, 2016.

[15] On April 5, 2016, the father attended the family counter in an attempt to file an application and obtain a secure treatment order for Chance. The family counter staff refused to issue the father’s application as there was an active Motion to Change before the Court. At the request of Master Champagne, the court staff contacted both parties and they were specifically requested to attend before Master Champagne the next day, being April 6, 2016. The father tried to adjourn the April 6 hearing, without success.

[16] On April 6, 2016, two years after the father’s Motion to Change was commenced, the mother, for the first time, appeared before Master Champagne. The father did not appear as ordered. The mother advised the Court on that day that she had never been served with the Motion to Change and was entirely unaware of these proceedings. She confirmed wanting to file responding materials and having just retained a lawyer for this purpose. As a result, Master Champagne made an order precluding the father from bringing any further motions or applications without leave of the Court and requiring that any further service of court documents on the mother be effected by a professional process server, courier or registered mail. The mother filed her Response to the Motion to Change on April 19, 2016.

Analysis

Material Change in Circumstances

[17] In accordance with s. 17 of the Divorce Act, 1985, c.3 (2nd Supp.) a final order respecting the custody of or access to a child may not be varied unless the court is satisfied that there has been a change in the condition, means, needs or other circumstances of the child having occurred since the making of the final custody order.

[18] While there were no change in circumstances justifying a variation of Justice Smith’s Final Order when the father filed his Motion to Change in February 2014, several material changes in circumstances have since occurred which warrant a review of the 2013 Order. Although both parties have acknowledged this, including in the context of the trial management conference, it is important to note them here:

• The two oldest children, Marvellous and Promise, have ceased any and all contact with their father since December 2015;
• Chance was diagnosed with severe autism on January 2, 2015 (he was not yet two years old at the time of trial before Smith J.), and he is now a seven year old child with significant special needs;
• Serious concerns have been expressed by Chance’s school to the mother and the Children’s Aid Society about the father’s care (or lack thereof) of Chance, which resulted in the involvement of the Society with this family;
• The police has also been involved with this family at least on two occasions as a result of the father’s failure to return Chance to school on Monday mornings;
• The father’s access with Chance has been sporadic, and there have been long periods of time without access, including during the summers of 2016, 2017 and 2018.

Findings of Credibility

[19] Before getting into the merits of each party’s position with regards to the issues raised in this proceeding, I wish to make the following comments with regards to the parties’ credibility.

[20] I find that the father’s evidence given during this trial was devoid of credibility. Not only was most of his allegations completely unsupported by any corroborating evidence, much of his testimony was inflammatory and filled with exaggerations and vexatious allegations. To name only the most dazing:

• He maintained throughout the trial that the mother’s new husband (who still lives in Africa with his own children) was a dangerous war criminal from Rwanda, although he was completely unable to substantiate this allegation in any way, shape or form.
• He maintained throughout the trial that the mother had been negligent toward the children emotionally, physically, medically as well as financially. Not only was he unable to adduce any evidence that would support such a finding (the evidence overwhelmingly established the contrary), he firmly maintained this position despite his admission that he had had no contact with his daughters for almost three years, none with his son for over four months, and that he had never paid child support to the mother since 2008.
• He maintained throughout the trial that the mother had caused Chance’s autism by exposing him to some poison.
• He maintained that Chance did not want to return to his mother following access weekends with him and that he had to be removed by force by the police (when the evidence overwhelmingly demonstrated that it was the other way around), that the mother was trying to have her husband replace him in the lives of the children (when he does not even live in Canada), and that the mother was trying to abduct the children and take them to Africa without his consent (there was not a shred of evidence supporting this allegation).

[21] Throughout the trial, the father was unable to acknowledge anything positive about the care the mother had provided the children since 2008. All of this, coupled with my finding that he knowingly filed two false affidavits of service purporting to have served the mother personally when he had not, and the false representations he made to the Court at the various hearings which took place between February 2014 to April 2016 result in my finding that the father has no credibility.

[22] On the contrary, I find that the mother was a very credible witness. Not only were many of her assertions clearly corroborated by documentary evidence or by the testimony of three other witnesses, she presented her evidence in a calm, concise and (almost) resigned manner, never falling into the trap of exaggerations or inflammatory assertions. She made concessions when concessions needed to be made, and gave credit to the father when credit was deserved. She was careful not to overstate the facts, and when she did not know for sure whether or not the father was the cause of a child’s distress or injury, she said so. Her ability and willingness to put the children’s best interests ahead of her own were clear and obvious throughout her testimony, and supported by the testimony of others.

[23] I arrive at the same conclusion with respect to the evidence presented by Ms. Desrosiers (Chance’s School Principal) and Mr. Bélanger (Chance’s teacher), who were both very credible witnesses.

[24] For those reasons, whenever the father’s evidence contradicted the mother’s or another witness’ evidence, I accepted the version of facts presented by the mother and the other witnesses.

Parenting of the Children

[25] Pursuant to subsections 17(5) and (9) of the Divorce Act, 1985, c.3 (2nd Supp.), in making a variation order, the court must take into consideration only the best interests of the child as determined by reference to the material change in circumstances, and must give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of that child.

[26] The concept of best interests is not defined in the Divorce Act. However, s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 provides a list of factors which are relevant to the assessment of a child’s best interests, and those factors are frequently used as a helpful guide to assess best interests in the context of the Divorce Act. It states:

Best interests of child

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

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

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

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

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

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

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

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

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

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

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

(h) any familial relationship between the child and each person who is a party to the application.

Application to the facts of this case – Promise and Marvellous

[27] The evidence before me makes it abundantly clear that the mother has provided Promise and Marvellous with the best possible care throughout the years, and that she has met all of their social, physical and emotional needs. Promise and Marvellous share a very close bond with their mother. They are both doing well in school, they are perfectly healthy, they are very involved in their church and the evidence before me, including that of the father, confirms that there is no concern whatsoever about their overall well-being.

[28] As to why the two older girls have ceased to have any contact with their father, I accept the mother’s evidence in that regard, large parts of which were not even disputed by the father. Promise and Marvellous began regular visits with their father following the 2013 Order, eventually moving to every second weekend from Friday after school to Monday morning at school. However, it is clear that the father had difficulties managing all three children while in his care, and the two girls were constantly on the phone with their mother during their weekends with their father seeking her assistance to deal with issues as they arose, as well as with conflicts between the children themselves or between the children and their father.

[29] Due to long periods of time when he had no contact with them, the father’s relationship with the two older girls was strained and difficult. They reported to their mother being left to do everything by themselves, having to prepare their own meals, and being left outside to play by themselves. They also complained that on weekends with dad, all of his focus and attention was on Chance, and they were mostly ignored. They often reported a lack of food while in their father’s care, and at times were sent to school on Monday mornings without a lunch, wearing dirty clothes, or missing some important item of clothing (shoes, mittens, warm clothes). Upon their return home, the girls were upset, angry, and it would take them some time to settle down.

[30] Once, the girls complained to their mother that they had to urinate in a cup because their father’s toilet was too dirty to sit on. For the following visit two weeks later, the mother provided the girls with a pack of wet wipes so that they could wipe the toilet before using it if necessary. The father forbid the children from using them, which made the girls very upset. The mother stated that she often tried to address these issues with the father, but that he was not receptive; and due to his abusive responses, she stopped trying. Despite all this, the mother continued to send the children on access visits with their father as required by the existing order. The girls became very resistant to having to go on visits with their father.

[31] On Christmas Day 2015, upon returning from an access visit with their father, the girls told their mother that they would never go back. According to the mother, the children were in their father’s care on Christmas Eve and were supposed to return to their mother’s the next day on time for Christmas dinner. That morning, the girls called their mother very upset and crying. They complained that they had not eaten breakfast, that there was nothing to eat at their father’s home, and that they both wanted to go back to their mother’s home immediately. The mother testified that, to this day, she is not entirely sure what transpired at the father’s home to have upset the girls to such an extent. However, given the girls’ distress, the mother called the father trying to convince him to return the children early. He categorically refused and became quite angry on the phone. Later that night, he called the mother to tell her that the children would be dropped off at the Hazeldean Mall at 7:00 p.m. and that she could pick them up there.

[32] Following this last visit with their father, Promise and Marvellous staunchly refused to go back on visits with their father. When school resumed in January 2016, the father tried on one or two occasions to pick Promise up from school, but she refused to go with him. The father was advised by Promise’s school that if Promise refused to go, they would not force her. Marvellous’ school took a different stance. The first time, they advised that they were required to follow the court order and forced Marvellous to leave with her father. However, following the intervention of the mother’s counsel (the specifics of which I am unaware of) and every time thereafter, the school refused to force Marvellous to leave with her father against her will and the father quickly stopped trying.

[33] There was no further access visits between the girls and their father from on or about January 2016, and the father took no steps (through court action or otherwise) to enforce his access rights or to communicate with them. The only time the father had contact with Marvellous is this past June (2018), when he showed up at school unannounced as Marvellous was getting on the bus and showed her a picture of her mother’s wedding asking her to confirm that the man on the picture was her mother’s new husband. When he showed up at Marvellous’ school again a few weeks later, Marvellous advised her principal that she did not want to see her father and he was asked to leave.

[34] Despite his requests to be provided with consents allowing him to communicate with and obtain information from the children’s schools and health professionals, which the mother provided, the father did not contact any of them. It was clear, during his testimony, that the father had no knowledge of their whereabouts, academic and extracurricular endeavours, or overall well-being. He was not even sure in which grade Promise was.

[35] In fact, the father provided no evidence as to how he would be better equipped (or equipped at all) to meet Marvellous’ and Promise’s needs; his entire testimony focussed on Chance. During his closing submissions, and although he had maintained throughout the trial that he was seeking a sole custody order for all three children, he stated that he was not seeking an order forcing Promise or Marvellous to live with him or to visit him against their will. He just wanted to be granted the right to make all decisions in their regard.

[36] I find that there is no beneficial or meaningful relationship between the father and his two daughters, and that the father has made no genuine efforts to re-establish contact or repair his relationship with Promise and Marvellous since January 2016. The undisputed evidence before me is that Promise and Marvellous do not want any contact with their father, and that they will be extremely resistant to any form of contact with their father that might be imposed by this Court. Despite the father’s assertions to the contrary, I find that the breakdown of the girls’ relationship with their father is the result of the father’s own actions, and not the result of any influence or alienating behaviours on the part of the mother.

[37] I find that the mother has taken very good care of Promise and Marvellous since they were born, that she has always been their sole caregiver, that she has met all of their needs and that it is in the best interests of both girls that they remain in her sole custody and primary care. I further find that, given the girls’ age, their expressed wishes and preferences, and the absence of any meaningful relationship between them and their father, an order leaving any access between them to the sole discretion of the mother is also in their best interests. I have no doubt that the mother will, as she has in the past, allow and encourage access to occur should either of the girls express the wish to have contact with their father, or should she feel that it would be in their best interests to do so.

Application to the facts of this case – Chance

[38] At the time of the trial before Justice Smith, Chance was only a baby. In the year following the trial, the mother became concerned about him not meeting his milestones as a toddler (talking, walking, communicating). After she expressed her concerns to Chance’s family physician, he was referred to the Ottawa Children’s Treatment Center (“OCTC”) to be assessed. After completing a comprehensive assessment on January 2, 2015, Dr. Laflamme, a psychologist, concluded that Chance met the criteria for a diagnosis of severe autism (Autism Spectrum Disorder, DSM-5 code 299.00, severity level 3). In her report she recommends the following action plan:

• that Chance access speech therapy services at OCTC;
• that Chance engage in occupational therapy at OCTC for an assessment of his fine motor skills, self-help and play skills as well as his sensory needs;
• that the mother register in an ASD Information Session offered at OCTC to learn more about community services available;
• that Chance be referred to an OCTC pediatrician for medical work up to rule out medical causes for his developmental delays. Upon receiving the physician’s medical review, referrals for audiology, neurology and genetics services at CHEO could be made on the family’s behalf;
• that Chance could be an appropriate candidate for Intensive Behavioural Intervention services offered through the CHEO’s Autism Intervention Program and the mother was encouraged to initiate the referral;
• that the mother consider initiating a referral to the Applied Behaviour Analysis Services and Supports Program offered by CHEO (to work on communication, social and interpersonal skills, daily living skills and behaviour/emotional regulation);
• that the mother explore nursery school options and preschool programs.

[39] Despite the father’s unrelenting assertions to the contrary, I find that the mother followed through on all of these recommendations. Not only was Chance referred to all of the services that he needed, the mother herself completed several programs in order to be better equipped to deal with Chance’s challenges and help him achieve his overall potential. In particular, she completed the “Triple P” Program (Positive Parenting Program) and the “More Than Words” Program, the latter of which is specifically designed for parents of children with Autism Spectrum Disorder. She also quickly registered Chance in speech therapy; and through those sessions, was provided with many strategies to help her communicate better with Chance and help him achieve basic milestones.

[40] In her assessment report, Dr. Laflamme had predicted that, at school, Chance would require a specialized educational approach and an exceptional level of support in order to benefit from learning opportunities and to reach his learning potential. Chance began attending school in September 2015. He is in a very specialized class at École St-Denis, comprising of six students only, all suffering from Autism Spectrum Disorder. This small class of students benefits from one specialized teacher (Mr. Bélanger) as well as two special aid teachers, full-time. Chance is educated in French, which is the mother’s and the children’s first language at home (they all speak English as well). Chance’s school principal, Ms. Marie-Chantale Desrosiers, and Chance’s school teacher, Mr. Marc Bélanger, both testified at trial with regards to Chance’s extraordinary needs from a developmental and educational perspective, as well as the remarkable progress he has made during the first three years of his schooling.

[41] Mr. Bélanger has 21 years of experience teaching children with very special needs. He has been Chance’s teacher since he began school. He confirmed that Chance had major difficulties in four main areas of his development: communication, socialization, fine and global motor skills and information processing. When Chance started school, he was nonverbal and could not understand anything that was said to him. His understanding was very, very limited and he had to be taught the use of visual aids (Picture Exchange Communication System, “PECS”) to allow him to communicate. He had no interest in socialization, whether with his peers or with his teachers. He was unable to dress himself, to eat with a spoon, to hold a pen, or to turn the pages of a book. He was also not potty-trained.

[42] In this special class, Chance has made amazing progress. He no longer needs to use the PECS, he can now communicate in simple sentences and he can understand simple and concrete questions. Although he still has difficulty interacting with his peers when engaged in a more complicated activity, he can now interact with other children in simple situations and interacts much more with the teachers. He is now able to do many things he could not do before, such as dressing himself, eating on his own, holding a pen, and looking through a book (something he really enjoys). Chance is also now potty trained (since the past year).

[43] However, despite Chance’s considerable progress, he continues to be a child with very special needs. It is doubtful that he will ever reintegrate a regular class and he still requires assistance to complete tasks that a child his age would have long been able to accomplish on his own. Chance can also be very difficult to deal with at times. If he is annoyed or displeased, he will yell, scream and run away. He requires constant supervision.

[44] When Promise and Marvellous stopped going on access visits with their father, Chance continued to be picked up by his father from his school for weekend visits every second week. I find as a fact that it is from that moment that Chance began experiencing significant difficulties while in the care of his father, and showing serious signs of distress before and after his visits with him. Promise and Marvellous share a very close bond with their younger brother and they are both very involved in caring for him. While the two girls were still going on access visits with their father, their presence made it much easier for Chance to transition to his father’s home, and to spend time there since his two sisters were present and helped care for him. When his two sisters stopped going on visits, Chance’s care was left to his father’s sole responsibility.

[45] As will be seen in what follows, the father was simply not equipped to deal with Chance’s extraordinary needs. Not only do I find that his parenting skills and understanding of the needs of a child were significantly deficient, he had also never assumed a primary caregiver role in Chance’s life and did not know how to care for him on a day-to-day basis. In addition to this, the father never accepted his son’s diagnosis of autism and until mid-way through the trial, not only disputed that diagnosis but maintained that his developmental delays were due to the mother’s neglect and lack of care. He never took any of the training completed by the mother to learn how to deal with and care for an autistic child.

[46] As a result of all of the above, Chance began to show alarming signs of neglect when returning from weekends with his father, and he became extraordinarily resistant to going on access visits with him on Fridays. When he saw his father arrive at school, he would start yelling, screaming and try to run away from him. This behaviour became very alarming to Chance’s school staff and prompted them to report this behaviour to the Children’s Aid Society.

[47] In addition to the mother, three witnesses testified at trial of the events which took place from September 2016 to June 2018, as they relate to Chance’s visits with his father. The Court heard from Mr. Bélanger, Ms. Desrosiers and from Ms. Anne-Marie Chabot, a Child Protection Worker with the Children’s Aid Society who worked with this family during that time. The evidence of these three witnesses entirely supports the mother’s own evidence, which I accept over the much more evasive, incomplete and contradictory evidence of the father with regards to the following events.

[48] At the beginning of the 2016-2017 school year, the school felt it necessary to create an access calendar that was shared with both parents to confirm the weekends when the father was supposed to exercise access with Chance and, thus, was allowed to pick him up on Fridays and expected to return him to school on Mondays. This was made necessary because of the father’s sporadic exercise of access with Chance during the winter of 2016, which had resulted in confusion and conflict between the parents and school staff. This calendar reveals that from September to November 2016, the father did not exercise any access at all with Chance (after he also failed to exercise any access with him during the preceding summer months). When the father suddenly showed up at school on December 2 to pick up Chance for the first time in five months, Chance began to cry and yell, and tried to run away. He refused to leave with his father whose attempts to entice him to come with him were unsuccessful. The father ultimately left with Chance in his arms, kicking and screaming.

[49] When Chance was returned to school on Tuesday morning (one day late with no justification), the father asked Mr. Bélanger to apply Zyncofax cream on his buttocks, providing a very vague explanation as to why. Mr. Bélanger noted that Chance was wearing the same clothes he had on the Friday before, which were very dirty, and that Chance looked sad, upset and was visibly in pain. He was refusing any physical contact and when he was brought to the bathroom for his morning routine, he started to cry showing signs that his bum was hurting him. It took a lot of effort and convincing for Mr. Bélanger and his team to be able to pull Chance’s pants down, but when they did, they observed that Chance’s anus and the interior of his buttocks were extremely irritated and inflamed with white streaks, and that he had dried up feces on his buttocks. Chance’s physical and emotional state was sufficiently alarming for the school to report this to the Children’s Aid Society. As the father later maintained that Chance was in that condition when he picked him up the previous Friday, which was denied by the mother, the school decided to keep a very detailed written log of all events relating to Chance, including his emotional and physical condition upon leaving or arriving at school on Fridays and Mondays.

[50] Without going into all the details of the events which took place during that school year, suffice it to say that Chance continued to show signs of neglect when returning from his access weekends with his father (no concerns were ever noted while in his mother’s care), including serious inflammation and irritation on his buttocks and around his anus. At that time, Chance was not fully potty trained. Without his sisters around to care for him while in the care of his father, I find that he was often left to his own device when needing to go to the bathroom while in his father’s care and, as a result, did not clean himself properly after going to the bathroom. This resulted in significant health issues for him throughout the winter of 2017 requiring medical care.

[51] Of particular note are the events of February 27, 2017, on which day the father returned Chance to school in mid-afternoon (again without an explanation as to his tardiness), and after having advised the school that Chance had been returned to his mother’s care (when he had not). On that day, Chance was brought back to school wearing a diaper (although he no longer needed one) filled with feces and urine which had obviously been there for a long time. His buttocks was extremely irritated, his anus area was bleeding, and he was in poor shape (physically and emotionally). Once again, the Society was contacted by the school and steps were taken to address these concerns with the father. Issues related to Chance’s lack of basic hygiene, emotional distress and very irritated bum when returning from access with his father persisted to the end of the school year despite the school and the Society’s interventions with the father.

[52] To say that Chance was resisting contact with his father during that year would be a gross understatement. Mr. Bélanger and Ms. Desrosiers’ account of his reaction when seeing his father at the end of school on Fridays throughout that year is distressing. He would scream, yell, run away in tears and completely refuse to leave with his father. Despite the father’s attempts to distract him with electronic toys or entice him with candy, Chance would need to be physically transported to his father’s car by force each time. Chance’s reaction was so severe that his teachers had to develop a protocol to assist with these transitions, which did not improve the situation but at least reduced the length of time that Chance would experience extreme stress until he could be placed (by force) in his father’s car.

[53] Chance was also frequently returned to school late on Monday mornings or wearing dirty clothes (often the same ones he had left with on Fridays). He would often come back to school on Monday mornings upset, crying and uncooperative. The school’s attempts to convey to the father the importance of bringing Chance to school on time on Monday mornings fell on deaf ears. On a few occasions, the police had to be called because Chance had not been returned to school at all, and the father had not called in to justify his absence.

[54] While the issues related to Chance’s lack of hygiene and irritated buttocks appeared to have resolved themselves by the beginning of the 2017- 2018 school year, I find that it is more likely as a result of Chance’s increased autonomy in attending to his own needs rather than as a result of his father’s increased insight into how to care for him. By the beginning of the 2017- 2018 academic year, the school ceased keeping a log of events surrounding Chance’s visits with his father, as it appeared that Chance was not resisting as much. When access visits resumed at some point in the fall of 2017 (the father did not exercise any access to Chance during the summer of 2017 either), and after a few visits with his father, Chance’s resistance became less extreme and eventually, he began leaving without much of a fuss. The evidence presented during the trial did not allow me to understand what had changed, but both Mr. Bélanger and Ms. Desrosiers confirmed that during the course of the past year (2017-2018), the school no longer had any concerns with regards to Chance’s transitions to his father’s care on Fridays, or with regards to his health. Tardiness on Mondays, however, continued to be an issue.

[55] Another concern that was also never addressed by the father, and which continues to occur to this day, is the father’s irregular exercise of access with Chance. Not only did the father regularly miss access visits during the school year, he did not exercise any access at all with him during the summers of 2015 to and including 2018. The father provided no explanation as to why he missed weekend visits, and why he failed to exercise any access at all during the past four summers or during the months of September to November in 2016. The school’s detailed logs for the school year 2016-2017 reveal that when he resumed access in December 2016 and until the end of the school year (June 2017), he missed a total of 5 weekends out of 14 that were made available to him. Whenever he missed a weekend, he did not notify the mother or the school. He would just fail to show up at school on Fridays.

[56] In 2018, the father’s last visit with Chance was at the end of June. After that last visit, he had no contact with Chance during the summer and by his own choice, has not exercised any access with Chance since school resumed (a total of almost four months without access). When asked at trial why he had not exercised access with Chance at all since June 2018, the father responded that he was concerned the mother would call the police again if he returned Chance late for school on Mondays, and he did not want to subject Chance to such stress and anxiety. This explanation makes no sense since the father exercised access with Chance for four months following the police’s last intervention with this family in February 2018. It is also an absurd justification since all the father had to do to avoid such stress was to bring Chance at school on time on Mondays.

[57] I find that the father’s deliberate decision to cease all contact with Chance for four months shows a significant lack of insight as to the devastating impact such a lengthy absence – and the resumption of access after such a lengthy absence – might have on a child, particularly a child with extraordinary needs such as Chance’s.

Conclusions

[58] There is absolutely no doubt in my mind that the mother is the parent who is best equipped to care for Chance and to meet his significant special needs. She has done so alone and with great success since he was born and I see absolutely no reason to vary the current parenting regime which grants her sole custody and primary care of Chance. I find that the father has shown a complete lack of insight and understanding about Chance’s significant challenges, and that he has a very limited ability to meet his substantial physical, developmental and emotional needs at this time. I find that the father needs to improve his basic parenting skills and learn how to care for a child with severe autism before he can be trusted in a caregiving role again with respect to Chance.

[59] While I am mindful of the progress made by the father with regards to Chance’s overall hygiene in the past year, and Chance’s much easier transitions into his father’s care on Fridays, I am concerned about the significant setbacks that a four month break in access visits may have had on these short-lived improvements. Repeated missed access visits by a parent and long periods of absence can have a very negative impact on a child’s relationship with that parent. In Chance’s case, such long absences can have a devastating effect on his willingness to go on visits with his father and his enjoyment of them.

[60] Despite the father’s poor parenting skills and insight, I do not doubt that he loves Chance and that he would like to play a more meaningful role in his life. However, I have little evidence of the benefits to Chance of resuming visits with his father in the current circumstances. I am of the view that, to ensure Chance’s well-being during those visits, and for the relationship with his father to be meaningful and beneficial to him (and, thus, in his best interests), the following must occur:

• The father needs to learn basic parenting skills;
• The father needs to learn how to meet Chance’s significant needs and how to address the challenges presented by his autism diagnosis. He needs to learn the strategies that will allow him to effectively communicate with and parent Chance in a way that meets his emotional, physical and developmental needs;
• The father needs to show consistency in, and commitment to, his access visits to Chance including during the summer months. Chance cannot be subjected to lengthy periods of time without contact with his father, as the resumption of access after long absences will continue to cause him emotional harm.

[61] Since Chance has had no contact with his father for over four months, I am of the view that it is in his best interests to resume access with his father gradually, within the confine of a formally recognized supervised access site with an established structure, rules and trained staff who will be able to impartially monitor, observe, and document what occurs during the visits and be able to intervene, should there be a risk to Chance’s emotional or physical safety. After a minimum of four weekly supervised access visits of one to two hours in duration (each), and provided that Chance does not show signs of distress during at least two consecutive visits, access could become unsupervised again, beginning with short unsupervised visits, extending to a full day every second weekend.

[62] Once the father has completed the parenting courses set out in more detail below, and provided that he has attended visits consistently, he could resume overnight access every second weekend, from Saturday morning to Sunday afternoon. I do not believe that it is in Chance’s best interest, given my findings above, to spend longer periods of time in the care of his father at this time. Given the father’s chronic lateness in picking up Chance from school on Fridays, and in returning him to school on Mondays, I am of the view that it is in Chance’s best interest that pick-ups and drop-offs no longer occur at school, and that Chance be returned to his mother’s care on Sunday afternoons to allow him to settle in his mother’s home on Sundays and ensure his timely attendance at school on Mondays. I am also of the view that pick-ups and drop-offs should occur at a supervised exchange facility from now on to ensure that the father is on time and to avoid parental contact and conflict (as will be further explored below).

[63] Finally, my order will provide that if the father misses access visits for more than three times in a row without reasonable explanation, or if he misses more than 35% of his visits over the course of four months (3 visits out of 8), access between the father and Chance will become at the mother’s sole discretion.

Parenting Order

[64] The following order shall therefore issue:

1. Sole custody of the three children shall remain with the mother.
2. Access between Promise, Marvellous and their father shall be at the discretion of the mother, and in accordance with the children’s wishes and preferences.
3. The father shall register in, and successfully complete, the “Triple P” Program (Positive Parenting Program) or another equivalent parenting course aimed at improving his basic parenting skills.
4. The father shall register in, and successfully complete, the “More Than Words” Program or another equivalent course designed specifically for parents of children with autism spectrum disorder.
5. Access between Chance and the father shall be as follows: a. As soon as supervised access can be arranged through a supervised access facility, there shall be a minimum of four supervised access visits of 1 to 2 hours in duration, once per week (on Saturday or Sunday); b. To the extent that Chance shows no signs of distress during two consecutive supervised access visits, access between Chance and his father will no longer need to be supervised, and will be progressively increased as follows: i. For the first month following the last supervised visit, every Saturday from 1:00 p.m. to 4:00 p.m.; ii. During the following month, every Saturday from 10:00 a.m. to 7:00 p.m. (or the latest time available at the supervised exchange facility if closing before 7:00 p.m.); iii. During the following month, every second weekend on both Saturday and Sunday from 10:00 a.m. to 4:00 p.m. (not including an overnight). This is subject to the father providing proof that he has met his obligation pursuant to par. 3 and 4 above (parenting courses). As long as he has not, access shall remain as per par. 5b) ii) above; iv. Every second weekend thereafter, from 10:00 a.m. on Saturday to 4:00 p.m. on Sunday (including an overnight); c. If the father misses three access visits in a row without reasonable explanation, or if he misses more than 35% of his visits over the course of four months, access between the father and Chance will become at the mother’s sole discretion as to duration, frequency and level of supervision.
6. Both parties shall immediately register in the supervised access program at Family Services Ottawa, and the first supervised visit shall occur as soon as a place is available.
7. If the father is able to secure an access supervisor who is acceptable to the mother, and who would be available earlier than if at Family Services Ottawa, supervised access shall occur in the community instead of in that facility.
8. The costs associated with supervised access shall be borne by the father alone.
9. The exchanges for access shall occur at a supervised access exchange facility once the visits become unsupervised, and the parties shall take timely steps to register in such a program as soon as possible to ensure that it is available to them once the access no longer requires supervision.
10. The father shall have access to all information regarding the children’s health, education, activities or overall well-being. As such, he is allowed to communicate directly with the children’s teachers, doctors, therapists as well as any other professionals involved in their lives.
11. I shall remain seized of this matter for one year, and any issues with regard to the implementation of this order can be brought to my attention directly by way of motion.

Child Support

[65] The mother seeks a child support order retroactive to the date of Justice Smith’s Order (from October 1, 2013) based on an imputed income equivalent to minimum wages. The 2013 Order does not discuss child support at all, and none was ordered. The mother testified that at the time of trial before Smith J., the father was unemployed and therefore, she abandoned her child support claim. This was not disputed by the father. It is also not disputed that the father never paid child support since the parties’ separation in 2008.

Retroactivity

[66] In DBS v. SRG, 2006 SCC 37, [2006] 2 S.C.R. 231, the Supreme Court identified four factors that must be considered before making a retroactive child support award:

1. reasonable excuse as to why support was not sought earlier;
2. conduct of the payor;
3. circumstances of the children; and
4. hardship occasioned by the retroactive award.

[67] It is clear from the mother’s testimony that her need for child support was always made clear to the father. She explains that at one time she asked him to contribute to the cost of medication for one of the children who was sick. The next day they attended the mall together to purchase the medication and the father took that opportunity to take a picture of them, which he later used to try to prove that the parties had reconciled. At other times, the father agreed to provide support at her request but tried to use this as leverage to get more access to the children. Another time, when he asked for her bank account number which she was not prepared to give him, she gave him the children’s bank account numbers instead and asked that he deposit the money there. He never did. I am satisfied that the mother’s claim and need for child support was made clear to the father well before the 2013 Order, and on an ongoing basis.

[68] The father stated that he was never able to transfer money to the mother because she refused to provide her bank account number. He also said that when he tried to call the mother to discuss the payment of child support, she would hang up on him. He confirmed knowing of his obligation to pay child support, but that that obligation “had to come from the law”, meaning that as long as there were no order requiring him to pay, he had no obligation to do so.

[69] I find that the father fully understood his obligation to pay child support, and that he failed to pay without any reasonable justification. I do not accept that not obtaining the mother’s bank account number or not being able to discuss this directly with her over the phone precluded him from supporting his children. He could have provided financial support through various other means including by sending cheques, email transfers or cash (of any amount).

[70] I find that the children have suffered from their father’s lack of financial support in that they have not been provided with the standard of living to which they were entitled. The mother is of limited means and, while she has done a very good job supporting these children on her own for the past ten years, they have missed opportunities offered to them as a result of their mother’s inability to pay for such things. The mother testified that she struggled financially in the past ten years. She indicated that the months of September were particularly difficult for her as she had to purchase many back-to-school items (including warm clothes) that she struggled to buy. She indicated she was not able to spend money on any “leisure stuff.”

[71] I am of the view that any future financial hardship on the father resulting from a retroactive child support award in no way supplants the hardship suffered by the mother and the children in the past years as a result of the father’s complete lack of financial support. As such, I find that a retroactive award is more than justified in the particular circumstances of this case.

[72] As to the date from which the retroactive order should be made, I find that January 1, 2014 is appropriate in the circumstances. The mother filed her Response to Motion to Change in April 2016, formally seeking child support for the children from a date “to be determined”. In DBS v. SRG, the Supreme Court stated that a retroactive award should start from the date the payor receives effective notice, and should not usually go more than three years back. The Supreme Court defined “effective notice” as the time when there was any “indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated.” Effective notice does not require the recipient parent to take any legal action; all that is required is that the topic be broached.

[73] I find that the mother’s need for, and the father’s obligation to pay, child support was always understood and made clear both before and after the 2013 Order. Since the trial of this matter was heard in May 2013, although the decision came out in September of that year, I find it appropriate for the child support to be retroactive to the year after the trial before Justice Smith, which is approximately two years before the mother filed her Response to Motion to Change seeking (once again) child support.

Determination of the father’s income

[74] Having found entitlement to child support from January 1, 2014, I must now determine the father’s income for child support purposes. I find that minimum wage income should be imputed to the father for all years from 2014 to present.

[75] Section 19 of the Federal Child Support Guidelines, S.O.R./97-175, as amended. [“Guidelines”] provides:

19. Imputing income. — (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

[76] The Court of Appeal in Drygala v. Pauli (2002), 61 O.R. (3d) 711 (Ont. C.A.), at para. 23, set out a three-part test for determining whether income should be imputed on the basis of intentional under-employment or unemployment as follows:

1. Is the spouse intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

[77] A spouse is intentionally under-employed if he or she chooses to earn less than he or she is capable of earning having regard to all of the circumstances (at para. 28). There is no requirement that the under-employment or unemployment be undertaken in bad faith or with the intention of avoiding support payments (at paras. 29-36).

[78] The onus is on the party seeking to impute income to establish an evidentiary basis that the other party is intentionally under-employed or unemployed (Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, at para. 28).

[79] The father’s income from 2014 to present, as found in line 150 of his income tax returns, is as follows:

• 2014 : $6,099 comprised of employment income of $1,443 and social assistance benefits of $4,656
• 2015 : $14,775 comprised of employment income of $9,804 and social assistance benefits of $4,971
• 2016 : only a T4 was provided for 2016 confirming employment income of $10,662
• 2017 : $25,659

[80] In his evidence, the father gave little information as to what he has been doing in the past years. He indicates that he now runs a business in transport and shipping, which he registered in 2018. He could not tell the court how much income he earns from that business and, when pressed in cross-examination, stated that he preferred not to guess or estimate his income. He had no idea how much he earned last month. He failed to provide any of his business records, which might have shed some light on his current income, and throughout the trial was directed to bring that information to court, which he failed to do. He confirmed that he is just working part-time in his business, that he is not looking for more work, and that he is perfectly healthy.

[81] The father’s evidence also confirmed that he acquired a College Diploma as a Developmental Service Worker from Algonquin College in 2015. This is the same degree as the one obtained by the mother, who is currently earning in the range of $42,000 per year working in that field. When asked why he was just working on a part-time basis, he stated that he had made that choice because he wanted to be present for his children, particularly his son who had such great needs. As stated above, the father only had the children in his care every second weekend from January 1, 2014 to December 2015. As of January 2016, only Chance was going on visits with his father. Not only did the father miss many of his visits with Chance, he did not exercise any during the past four summers.

[82] I find that the father was, and continues to be, intentionally unemployed and/or underemployed since 2014. There was an ongoing duty, past and present, on the father to actively seek out reasonable employment opportunities to maximize his income so as to assist with his children’s significant needs. The father has not met that onus and he has not satisfied me of any justifiable reason for his failure to do so.

[83] I find that imputing an income on the father which is commensurate with, at the very least, full-time minimum wage employment, is reasonable in the circumstances. I am unaware of the father’s past employment history, including what he was doing while living in Alberta. While I see no reason why he could not earn at least as much as the mother, since he has the same qualifications, the mother only sought to impute minimum wages and I find this position appropriate in the circumstances.

Child Support Order

[84] An order shall therefore issue requiring the father to pay the following child support based on full-time minimum wage income (which fluctuates according to the periodic increases in the minimum wage in Ontario as well as the Child Support Tables’ 2017 update):

1. From January 1, 2014 to September 30, 2015, monthly child support in the amount of $447 for the three children based on an imputed annual income of $23,320, for a total owing of $9,387 (21 X $447).
2. From October 1, 2015 to September 30, 2016, monthly child support in the amount of $483 for the three children based on an imputed annual income of $23,400, for a total owing of $5,796 (12 X $483).
3. From October 1, 2016 to December 31, 2016, monthly child support in the amount of $488 for the three children based on an imputed annual income of $23,712, for a total owing of $1,464 (3 X $488).
4. From January 1, 2017 to September 30, 2017, monthly child support in the amount of $494 for the three children based on an imputed annual income of $23,712, for a total owing of $4,446 (9 X $494).
5. From October 1, 2017 to December 31, 2017, monthly child support in the amount of $502 for the three children based on an imputed annual income of $24,128, for a total owing of $1,506 (3 X $502).
6. From January 1, 2018 to November 30, 2018, monthly child support in the amount of $604 for the three children based on an imputed annual income of $29,120, for a total owing of $6,644 (11 X $604).
7. The above arrears totaling $29,243 shall be repaid at the rate of $200 per month, until fully satisfied. The monthly payments toward arrears may be increased if the father’s income increases.
8. Beginning on December 1, 2018 and every month thereafter until further varied by order of the court, the father shall pay monthly child support in the amount of $604 for the three children based on an imputed annual income of $29,120.
9. On May 1st of each year, the parties shall provide each other with a copy of their income tax return, notice of assessment, three recent pay stubs, and any other income documentation as required by s. 21 of the Federal Child Support Guidelines, so that child support may be reviewed if necessary.

Special Expenses

[85] The mother also claimed a contribution from the father towards the children’s special expenses. Although I have no doubt that the mother incurred expenses on account of therapy, medication, dental and health care for the children, I have not been provided with documentary evidence confirming those amounts. Further, the mother has access to a health and dental insurance plan through her employment, and I have no evidence of the portion of those expenses which might have been covered under her plan.

[86] The mother also incurs child care costs in the amount of $50 per day that she pays to a caregiver to sleep over at her house to care for the children on the days that she works. The mother works night shifts from approximately 11:00 p.m. to 7:00 a.m. She needs a caregiver to stay with the children while she is at work, while they sleep. Once again, I have been provided with no documentary evidence confirming these amounts. I do not have the mother’s complete income tax returns either, only her notices of assessment or CRA print-outs which do not provide enough details to allow me to determine the yearly net cost of this expense. I do not know when the mother began paying these costs either.

[87] Furthermore, the uncontested evidence is that the father has had to assume a loan in the amount of $7,543.90 due to the Department of Immigration, Refugees and Citizenship in relation to the family’s immigration to Canada in 2008. The mother acknowledges that she is responsible for the payment of one half of this loan ($3,771.95), which the father asks be repaid to him. In the end, I find that the mother’s claim for retroactive contributions to the children’s special expenses is set-off against the debt she owes the father with regards to their immigration to Canada, such that neither owes the other any money on those accounts.

[88] Therefore, the following order shall issue:

1. The mother’s claim for a retroactive contribution to the children’s special and extraordinary expenses is set-off against the father’s claim for reimbursement of the mother’s 50% of the parties’ loan to the Department of Immigration, Refugees and Citizenship, resulting in both debts being extinguished.
2. On an ongoing basis, and beginning on December 1, 2018, the father shall be responsible for the payment of his proportionate share of the net cost of the children’s special and extraordinary expenses. His proportion of the net costs shall be 40% and the mother’s proportion shall be 60%.
3. The mother shall provide the father with copies of receipts or other documentary evidence when she seeks a contribution from the father, and the father shall pay within 10 days of receipt.
4. Extraordinary expenses related to extracurricular activities for the children shall not be incurred by the mother with a view of seeking a contribution from the father unless he has consented to such expense in advance, in writing. The father shall not unreasonably withhold his consent.

Other Orders Sought

[89] The mother seeks various other orders related to her inability to communicate or cooperate with the father. Among others, she wishes to be able to obtain official documents for the children and to travel with them without the father’s consent. She also seeks a restraining order against the father.

[90] The evidence before me supports the issuance of a restraining order against the father in favor of the mother. The evidence confirms that there have been many confrontations between the parties in public places, that the father has appeared in places where he was not supposed to be or that he should not have been, that he threatened the mother during telephone conversations to the point where she stopped answering the phone and complained to the police, that he showed up at her house unannounced, that he sent strangers to her home, and that he downloaded her wedding picture from her Facebook account (even if she had blocked him from her account). The mother testified that the father had attempted on several occasions to befriend her on Facebook under false identities. The father’s obsession, which was obvious throughout the course of the trial, with the mother’s new husband (who does not even live in Canada yet) gave the court cause for concern as well.

[91] The mother’s fear of the father is genuine and real. She has taken numerous measures to try and protect herself from him, with mitigated success. She has felt forced to move on a number of occasions as a result of the father showing up at her residence or following her there without her consent (and sometimes without her knowledge). She has insisted in the context of the last trial that exchanges of the children take place at school so that the father would not attend her home. She has pursued this Court litigation without revealing her address, out of fear that he would find her and start harassing her again at her home.

[92] For all the above reasons, an order will issue as follows:

1. The father is hereby restrained from directly or indirectly contacting or communicating with the mother, except in writing and only for the purpose of discussing parenting matters (such as changes to the access schedule, travel plans or exchange of information related to the well-being of the children).
2. All such communications shall be by way of emails only, with the content to remain at all times brief, respectful and child-focused.
3. The father is hereby restrained from coming within 500 meters of the mother’s place of residence, place of work, or any other places where he knows her to be.

[93] The mother also asks for the following orders, which I find appropriate to grant in the circumstances:

1. The mother is granted leave to obtain any piece of federally or provincially issued official documentation for the children, including a passport, without the father’s consent.
2. The mother is granted leave to travel with the children, including internationally, without the father’s consent. To the extent that the mother’s travel interferes with the father’s access to Chance, she shall provide the father at least two weeks’ advance notice and provide him with make-up time with Chance to replace the missed access, to take place immediately before or after the mother’s travel.

[94] The following order shall also issue:

3. The mother shall not move the children’s residence outside of the Greater Ottawa Region without giving the father at least 60 days’ notice of her intention to do so.

[95] Lastly, the mother seeks an order that the father be required to obtain leave of the Court to bring any further Motion to Change. This is the second lengthy trial held between these parties on the issues of custody and access in five years, both of which were initiated by the father. The father brought a Motion to Change less than six months after Justice Smith’s Order was issued and, I find, without having any basis to do so. At the time that he filed his Motion to Change, there had been no change in circumstances supporting a request to vary Justice Smith’s Order.

[96] Further, in the context of this trial, the father’s position was simply untenable. He was seeking a sole custody order for the three children; two of whom he had not had any contact with for almost three years, and one of whom he had chosen not to see for over four months. This trial required almost three weeks and the mother, who does not have access to legal aid, was required to pay significant legal fees to represent herself in this trial, with very limited income and while being the sole financial support for her and the three children. In addition, and as stated above, the father filed false affidavits of service in the context of this proceeding, made false representations to the Court and generally engaged in behaviors that cannot and should not be condoned by this Court.

[97] I agree that an order requiring the father to obtain leave of the Court before bringing any Motion to Change the parenting provisions of my order is fair and justified in the circumstances. Therefore, I make the following order:

1. The father shall seek leave of the court to bring any further Motion to Change the parenting provisions of this order, on notice to the mother, and his materials shall be served on the mother by way of special service by a process server.

Costs

[98] The mother is clearly the successful party in this case. If the parties cannot agree on costs, I will accept written submissions from the parties not exceeding four pages (exclusive of Bills of Costs and Offers to Settle). The mother will have 20 days from the date of this Decision to provide her submissions and the father will have 20 days thereafter to do the same. The mother will be allowed a brief reply if deemed necessary, not exceeding two pages, which shall be provided within 10 days from receipt of the father’s submissions.

Madam Justice Julie Audet Released: November 9, 2018