Cyr v. Cyr, 2019 ONSC 1291

Court File and Parties

NEWMARKET COURT FILE NO.: FC-18-56613 DATE: 20190226 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Shelly Cyr, Applicant AND: Albert Cyr, Respondent

BEFORE: The Honourable Mr. Justice R. Kaufman

COUNSEL: H. Warren, Agent for the Applicant J. Beaton, Counsel for the Respondent

HEARD: February 13, 2019

Ruling on Motion

1In this motion, the respondent seeks parenting time with his child Tevin (born December 14, 2017) as follows:

1. Commencing February 15, 2019: (a) one weekday per week from pick up at daycare until 7 p.m.; (b) one weekday per week from 7 a.m. pick up from Tevin’s daycare until drop off at 7 p.m.; (c) every Saturday at 4 p.m. until Sunday at 7 p.m.; and (d) access exchanges shall take place at the police station located at 2700 Rutherford Rd. in Vaughan, unless otherwise stated.
2. Commencing March 18, 2019: (a) one weekday per week from pick up at daycare and to return to daycare the following morning; (b) one weekday per week from 7 a.m. pick up from Tevin’s daycare until drop off at 7 p.m.; (c) every Saturday from 4 p.m. until Sunday at 7 p.m.; and (d) access exchanges shall take place at the police station located at 2700 Rutherford Rd. in Vaughan, unless otherwise stated.
3. An Order that Tevin shall be transferred to the Peekaboo Trowers Daycare, located at 90 Trowers Road in Woodbridge, Ontario, effective immediately.
4. Costs.

2By way of background, the parties are Tevin’s parents. They commenced cohabitation in 1997 and were married in 2006 and remained together until February 23, 2018, residing in Aurora when the applicant departed the matrimonial home with Tevin without notice and apparently as a complete surprise to the respondent.

3On separation, the applicant and son moved to Brampton, with family and then, on a temporary basis, to a shelter and then to her current residence in Mississauga.

4On March 7, 2018, the applicant commenced an Application in Brampton. On March 18, 2018 both parties brought urgent motions before the court. The Order granted by the court that day has not been entered but the essence of the court’s endorsement provides the following:

(a) the applicant’s motion for interim exclusive possession of the matrimonial home was dismissed; (b) the respondent’s motion for an Order that the child (then three months of age) be returned to the matrimonial home was dismissed; (c) the recent conflict between the parents and the father’s persistent efforts or overtures for reconciliation, despite the mother’s clear communication that there are irreconcilable differences cohabitation living separately under the same roof is not feasible and would be a potentially toxic arrangement for the child; (d) the applicant was at liberty to return to the matrimonial home at any time. The respondent was to cooperate with the applicant’s preparations to list the home for sale including allowing access to real estate agents and prospective buyers; (e) the parties were to refrain from any direct communications except for child-related matters and coordinating the applicant’s attendance at the home or the attendance of real estate agents; (f) a parenting schedule needed to be fixed to ensure that the child had maximum time to bond with both parents; (g) the applicant’s proposal of supervised access for the father was not warranted. The evidence did not suggest that the father was incapable of parenting an infant or that the child’s well-being would be compromised by being in his father’s care unsupervised. However, the mother’s breast feeding schedule must be accommodated as that is also in the child’s best interest; (h) due to the inability of the parties to agree upon a parenting schedule, on an interim without prejudice basis, the respondent was to have care of the child for three consecutive hours on four weekdays each week and on one weekend day (either Saturday or Sunday) each week. The parties were to negotiate the precise dates and times. The parties were to endeavour to coordinate the respondent’s time with the child with available playgroup hours at the nearest Early Childhood Centre so that he had an option to take the child to the Centre if he so chooses; (i) the court strongly recommended that the parties attend co-parenting courses or counselling with a suitable counsellor; (j) apart from the court Order and the resolution of some of the other issues raised by the motions, the remainder of the motions were dismissed as premature as the parties had not yet attended a Case Conference; and (k) the proceeding was traversed to Newmarket in recognition of the location of the matrimonial home and that it was the appropriate jurisdiction consistent with cohabitation.

5The matter next proceeded before me on January 9, 2019 with both parties requesting permission to argue the motions before the initial Case Conference which was then scheduled for March 19, 2019. The applicant sought an Order dispensing with the consent of the respondent to enable the child to be enrolled in Bright Path Kids Corp. The respondent sought an Order dismissing the applicant’s motion for an Order that the child be enrolled in one of three proposed daycares in York Region. The applicant had obtained new employment, working primarily from home. The respondent had started new employment in the Aurora area. The need for daycare was not in dispute. The respondent was hopeful that he would be able to rearrange his work schedule to enable him to seek additional parenting time. He was refusing to consent to the applicant’s choice of daycare that was closer to her residence.

6My decision on January 9 dispensed with the respondent’s consent to the child being enrolled in the applicant’s choice of daycare in the absence of his consent not being forthcoming in 24 hours. It was noted that the applicant’s chosen daycare controlled other locations which could enhance the enrolment opportunities for the child if the child is ultimately ordered back to York Region or better accommodate the respondent’s ability to enjoy mid-week parenting time in the future.

7On my own volition, I also scheduled an earlier Case Conference for the parties on February 1, 2019 and, on their requests, expanded the permitted volume of their Case Conference Briefs to enable them to pursue settlement options as if a Settlement Conference was being conducted and to enable them to present evidence on financial corollary issues. The prior Case Conference date of March 19, 2019 was to be preserved with the Case Management Justice determining the nature of that event to meet the ambitious goal of a trial during the May, 2019 trial sittings.

8As an aside, I am requesting that the parties arrange an attendance at the filing office at Newmarket. Within the court file is affidavit material from the applicant dated March 15, 2018, January 8, 2019 and February 8, 2019 and from the respondent dated March 16, 2018 and January 7, 2019 (including his cross-motion). All of this material, previously walked into court, must be filed in the Continuing Record prior to this matter proceeding further.

9In support of his motion, the respondent pleads the following:

(a) upon the birth of his son, he maintained an equal role in the child’s life from his birth to separation. He was an active father and fed, changed, bathed and played with his son every day; (b) on separation, the child was unilaterally moved from their home in Aurora to Brampton without any warning and without his consent; (c) the applicant improperly commenced this proceeding in Brampton. She was unsuccessful in obtaining most of her requested relief at an emergency motion. The subsequent transfer of the file to Newmarket necessitated delay in arranging a Case Conference and prevented the respondent from bringing an access motion to provide him with additional parenting time with his son; (d) as a result of the Brampton Court Order, father and son were allocated 15 hours per week of parenting time spread equally over four weekdays and one day on the weekend; (e) the respondent blames his limited parenting time on the applicant’s two unilateral moves away from the Aurora home base, her denial of parenting time and his work schedule which limits his ability to have parenting time with his son; (f) he also refers to the loss of use of his vehicle, attributing the loss to the applicant’s behaviour and her refusal to be responsible for the driving as she had done; (g) the respondent submits that requests for additional parenting time, specifically on the weekend, was rebuffed by the applicant. She was then on maternity leave but still felt it important that it was important for the child to spend part of the weekend with her family and friends; (h) since September 9, 2018 the respondent has been seeing his son on Sundays from 7 a.m. to 7 p.m.; (i) although the Brampton Order required the parties to share the child’s car seat, the applicant insisted that if the respondent did not purchase his own car seat that parenting time would be denied. This is no longer an issue; (j) the applicant relies on her breastfeeding schedule to prohibit overnight parenting time. However, she has conceded a 12 hour visit with the respondent which involves a change in the child’s schedule without any apparent difficulty; (k) the respondent complains that he has been excluded from the child’s medical appointments with the party’s at odds regarding responsibility for arguments in the presence of the doctor (and child); (l) he also disagrees with the applicant’s choice of daycare for the child as the location was in the opposite direction of his house. He feels that the applicant’s daycare choice was motivated to frustrate his future ability to see his son. He disputes the legitimacy of her rationale, being that the daycare is closer to her home in that the applicant works from home. The respondent proposes that the child attend a daycare equidistant between the parties’ respective homes; (m) the respondent has secured new employment at a Home Depot location close to his home in Aurora. His employer has agreed that the respondent have a fixed schedule in which he works an early shift from 7 a.m. to 3:30 p.m. on one set day per week as well as work every Saturday in exchange for one day off during the week; (n) he was not consulted by the applicant with respect to the choice of his son’s daycare. He was advised of the registration on October 26, 2018 by correspondence from the applicant’s counsel but subsequently ascertained that the initial deposit was provided on August 15, 2018, some 72 days earlier. The correspondence indicates that the child was to commence daycare in early January, 2019; (o) the respondent was unaware of a further move by the applicant from Brampton to Mississauga, the location of the daycare. Apparently, the applicant justified the second move by its proximity to work even though she works from home; (p) the respondent proposes that the child attend a daycare equidistant between his parent’s homes. He maintains that he has the ability to care for his son but to properly bond with him, he requires more time to do this on a weekly basis; (q) the respondent’s ultimate goal is equal parenting time. Currently, his modified schedule permits him to have parenting time every Thursday and Sunday (12 hours both days with eventual expansion for overnights) and Tuesdays from the conclusion of his shift at 3:30 p.m. until 7 p.m. (with eventual expansion for overnights); (r) he believes that an immediate change in daycare is required to better promote contact between father and child and to preclude the applicant from further frustrating parenting time by her unilateral moves; (s) the respondent further submits that the applicant anticipated changes in parenting time by her choice of a daycare facility that offered other locations between Mississauga and Aurora. Currently, the respondent submits that the distance between his home and the daycare chosen by the applicant would require1.5-2 hours to travel one way, depending upon traffic. In its place, he proffers a daycare facility situated nearby the current place utilized by the parties on their exchanges of the child and run by the same service providers as the child’s current daycare; and (t) the respondent submits that it is not necessary for the daycare to be in close proximity to the applicant’s office as she works from home and only attends the office one day per month for a few hours. She had this routine while residing in Aurora for eight years and has flexible hours in choosing her work schedule.

10In opposition to the respondent’s motion the applicant responds as follows:

(a) it has always been her fervent wish that father and child have a close relationship; (b) despite her encouragement to facilitate contact between father and child, the respondent finds excuses not to see the child on a regular basis; (c) the applicant views the issue of the daycare location as a red herring. She raised the issue with the respondent while in the midst of her maternity leave so as to secure a space. At all times he insisted on an Aurora location despite the former matrimonial home being sold and the applicant having no idea of his place of residence. Finally, she was required to bring an emergency motion before me on January 9, 2019 as she was imminently returning to work and the respondent had notified her chosen daycare that he did not consent to the child’s placement in that location; (d) the applicant denies that the parties shared equal roles in the child’s life and submits that the respondent showed a callous disregard towards the child early on in his life. She was required to assume all of the child’s parenting responsibilities. She describes his view of his participation in the child’s daily routine as pure fiction. She notes that although the respondent seldom worked, his primary focus was on himself and he left child care almost exclusively to her. In support of her position, the applicant relies upon a schedule that she prepared for her March 2018 court appearance indicating the respondent’s behaviour on parenting this child for the period of December 14, 2018 to February 23, 2019; (e) she views his recent interest in spending time with the child as positive, provided that he properly learns how to clothe and feed the child; (f) she provides documentary proof of her initial efforts, through her then-counsel to arrange parenting time, implicitly of a supervised nature; (g) the applicant also alleges historical abuse at the hands of the respondent which necessitated her departure from the home without notice; (h) the applicant submits that for the first three months following separation, she drove 90 minutes several times a week to facilitate contact between father and child at the former matrimonial home and to comply with the court-ordered parenting time. She maintains that the move from Aurora to Brampton into a shelter and then to Mississauga was solely to protect herself and the child from the respondent’s abuse; (i) although she describes the court-ordered parenting time as onerous, she complied and did all of the driving although not required. The Order required revision when the respondent secured employment since the Order provided for mid-week parenting time which was impacted by the respondent gaining employment; (j) the court Order provided the respondent with one of the family vehicles on a temporary basis. Purportedly on advice of a Service Ontario employee, the applicant reported the licence plates (owned by her) as missing to enable the respondent to acquire ownership of the vehicle and secure his own plates. When he rejected this proposal unless part of an overall financial settlement, she transferred the vehicle into the respondent’s name and purchases plates for the vehicle. During this interval, the applicant facilitated all driving during child-exchanges. She also comments that York Region has an excellent public transportation system; (k) the applicant insisted that child-exchanges take place at a police station; she still maintains that she is berated by the respondent in the presence of the child at these exchanges; (l) in denying the respondent’s assertion of wanting to maximize parenting time after securing employment, the applicant provides a litany of his excuses; including the absence of requests for additional time on the child’s birthday, at Christmas or on long weekends; (m) the applicant also comments on the respective positions regarding use of the car seat; the respondent relied upon the initial court Order that it be shared while ignoring the applicant’s concerns that the child had outgrown the seat and that the seat had to be bolted down to comply with provincial law; (n) she notes that contrary to the respondent’s assertion that the child is well-fed in his care, that the child is famished at the end of his visits with his father; (o) she also insinuates that the respondent’s request for added parenting time is motivated by a desire to reduce his child support obligation; (p) the applicant reflects upon what she perceives to be a lack of communication regarding the child’s needs, a problem she states is caused by the respondent. She also depicts incidents of alleged traumatic abuse at the hands of the respondent within a time frame after separation; (q) she also indicates attempts by her to share recommendations from two Children Aid Societies on how to effectively co-parent, to no avail; (r) the applicant raises concerns about overnight parenting time including lack of knowledge of the respondent’s address and the nature of such accommodation, lack of increased parenting time prior to overnights being implemented, lack of communication, her breastfeeding and lack of adherence to the overnight routine she has developed with the child; and (s) the applicant recommends that the party’s revisit the issue of overnight parenting time when the child is 18 months of age and communication has improved. She also relies upon an AFCC paper that recommends starting overnight parenting time between 18-36 months where one party has been an uninvolved and uncommunicative parent.

Analysis

11It seems trite to restate the law regarding parenting time, a more acceptable description of how parents share time with a child following separation or, as commonly referred to as a custody/access dispute. The sole test is what is in the child’s best interests.

12Under the provisions of the Divorce Act [1] the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the conditions, means, needs and other circumstances of the child. [2] In determining the issues of custody and access, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [3]

13Under section 20 of the Children’s Law Reform Act [4], a child’s parents are equally entitled to custody of the child. The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as the health, education and welfare of the child. [5]

14The best interests of the child is determined in accordance with subsections (2), (3) and (4) which requires the court to consider all the child’s needs and circumstances, including but not limited to the love, affection and emotional ties between the child and each person entitled to or claiming custody of or access to the child, 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, the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing and the ability of each person applying for custody of or access to the child to act as a parent. Past conduct shall be considered only if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. [6] For the purpose of this Ruling, this court does not make any credibility finding as to whether or not either parent has committed violence or abuse against the other.

15The child’s best interests must be ascertained from the perspective of the child rather than the parents; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child. [7]

16The child’s best interests must be assessed not from the perspective of the parent seeking to preserve access, but from that of the child entitled to the best environment possible. It is a mistake to look down at the child as a prize to be distributed, rather than from the child up to the parent as an adult to be accountable. This by no means eliminates the adult’s wishes from the equation; it means that those wishes cannot always be accommodated. It is the child’s right to see a parent with whom she does not live, rather than the parent’s right to insist on access to that child. That access, its duration, and quality, are regulated according to what is best for the child, rather than what is best for the parent seeking access. [8] The convenience of the parents is not ignored, but is secondary to the welfare of the child. [9]

17I will not recite the arguments of the parties that are set out above. This has been their third motion following their separation one year ago. They have had the benefit of a Case Conference wherein, according to the endorsement, the Case Management Justice expressed strong views following a comprehensive conference. The next event is a further conference on March 19 when the parties can consider the benefits of requesting a trial in the sittings commencing May 13, 2019. The battle of affidavit warfare cannot continue without further detriment to their child. A trial will enable them to place their numerous grievances with one another before the court to enable the trier of fact to make necessary credibility findings regarding their behaviour both during and following cohabitation. The outcome of a trial will result in an adult who does not know little Tevin determining his future parenting arrangement because his parents were either unwilling or unable to do so.

18I have previously commented on my views surrounding the decisions of the applicant in vacating the matrimonial home and relocating in Peel Region. She had travelled that distance from Aurora when work required although she works from home. She professes to have made the move to Brampton for the support of relatives and yet she immediately moved from the Brampton residence of a family member into a shelter. Her court Application requested exclusive possession of the matrimonial home in Aurora at least, she says, until it could be sold. This behaviour will be better assessed at a trial than on a motion.

19I am unable to assess the evidence presented concerning the roles of the parties after the child was born. Obviously, the applicant developed concerns about the respondent’s readiness to parent their child. She has documented those concerns after the fact in her chronological recantation attached as an exhibit to her affidavit. The weight given to that document, if any, is best left for a trial judge.

20I quote a recent decision of the court in a mobility case argued on a motion wherein the mother sought permission to relocate to Victoria, British Columbia from Toronto. [10]

“ Whether someone is a good parent is not something that can or should be quantified by the time each parent spends with a child. It is much more than that. When parents live in a functioning family unit nobody pays too much attention to the minutes each parent is there and who is the primary caregiver. This only happens when the family unit becomes fractured. Elisabeth argues that Josiah does not prioritize parenting over work and that he believes in the assistance of professional child care, such as using day care or having a nanny. While Elisabeth does not believe in having a nanny, she is prepared to use day care because of the socialization aspect associated with it. Elisabeth’s position was that Josiah was too involved in his work and career, and because of this had forfeited his right to parent Freya on a regular basis. The underlying argument and premise to this motion, that one can be a Bay Street lawyer or a proper parent, but not both, is not only misguided but is also not what this motion should be about. This motion should be focused on what is in the best interests of Freya”.

21Turning to the relief sought by the respondent and the response by the applicant, they should not lose site that after this round, they will soon have other rounds to fight over their parenting time. At the age of four, the child will need to be enrolled in school, presumably, all-day kindergarten. Perhaps at the age of three it might be in his best interests to be enrolled in a nursery school. Once the child is older and has more of a routine, travel time will become more onerous on him. Decisions will be required, likely by me or one of my colleagues in the event the parents are unable to properly focus on where the best interests of their son lie.

22From the respondent’s perspective, he is available for parenting time on one full weekday and one full day on the weekend. At best, he is able to commit to a late afternoon one additional day per week based on his current circumstances. If the child’s daycare was switched to Woodbridge from Mississauga, the respondent would benefit by a reduced drive on the full-day weekday he requests parenting time. On the other four days of the school week, the applicant would have to transport the child to Woodbridge. Those days are of no benefit to the respondent. They are of no benefit to the child being in a car when his father will not be on the receiving end. On this basis, the request for a change in daycare, at this time, is dismissed. In so ordering, I place little weight in the applicant’s evidence that the child has already acclimatized to the daycare in light of his only starting there in January. I also place little weight in the guesstimates of the parties as to the time each would have to travel if the daycare remain as is or is changed. It is simply not, at this time, appropriate for this little child to be in a vehicle travelling to Woodbridge from Mississauga every day of the week when there is to be no parenting time with his father.

23I have been provided with several scenarios regarding how parenting time should operate including the exchange location. Whereas I have determined there to be no change in daycare at this time, I have also determined that there is no reason why the child-exchanges cannot take place at the agreed upon location, being the police station at 2700 Rutherford Road in Vaughan. This location is a 37 minute ride from the applicant’s residence (38 km. along 407) and 30 minutes away from the respondent’s new residence in Aurora (29.9 km. along 407). I have no doubt that there is a Tim Horton’s location equidistant the parties’ residences but that information was not provided to me.

24Regarding the evidence received in argument concerning overnight parenting time, I am not comfortable to have this instituted at this time, although it is recognized that many aspects of a night time routine are in place for afternoon naps. I am unable to determine when the trial of this action might occur. The applicant states she is still breastfeeding during the night, although this is not a deterrent to her suggestion of two 12 hour visits between father and child. My Ruling will provide when overnight parenting time begins subject to a decision being received at an earlier trial.

25Regarding the respondent’s request for a mid-week period of parenting time, he has requested a pick-up at daycare (which, by my Ruling would be the police station) until 7 p.m. the same day. This would allow him to spend, at most 3 ½ hours with the child of which there will be two drives back to his home and then to the police station allowing, at most, for a two hour visit. That ignores the fact that the child would be transported from Mississauga to the police station by the applicant, placing the child in the car for almost 40 minutes each way. Whereas I do not underestimate the benefit of additional time between father and child, such time must be for the benefit of the child and at this stage those benefits are not present.

Decision

On the basis of the above analysis, my Ruling is as follows:

1. The respondent’s Motion to Change the child’s daycare is dismissed.
2. Commencing immediately, the respondent will have parenting time with the child as follows: (a) one weekday per week from 7:30 a.m. until 7:30 p.m. Absent flexibility between the parties, such parenting time shall occur on Tuesday; (b) every Sunday from 7:30 a.m. until 7:30 p.m.; (c) Good Friday April 19, 2019 from 8:30 a.m. until 6:30 p.m. (assuming the respondent is not working); (d) commencing June 15, 2019 the weekend parenting time shall commence every Saturday from 4:30 p.m. until Sunday at 7:30 p.m.; (e) commencing the week of September 3, 2019, the respondent shall have mid-week parenting time one day in alternating weeks from 4:30 p.m. until 8 a.m. the following morning (provided his work schedule can accommodate this time). Absent flexibility that day shall be Thursday; (f) the respondent shall immediately request permission from his employer to work May 12 (Mother’s Day) rather than May 11 and his weekend shall take place on May 11, 2019 from 7:30 a.m. until 7:30 p.m. unless the employer is unable to accommodate this early request. If that is the case, the respondent shall obtain a written explanation from the employer and provide it to the applicant forthwith (through counsels). Absent other written agreement between the parties, if the parenting time must occur on Mother’s Day, it shall terminate at 4:30 p.m.; (g) all parenting exchanges shall take place at the York Region Police Station located at 2700 Rutherford Road, Vaughan, Ontario; (h) The parties shall utilize their own strollers on exchanges. The receiving parent shall wait beside his/her vehicle for the child to be brought and the receiving parent shall remove the child from the stroller; (i) The parties shall utilize a parenting book that will travel with the child in which relevant information pertaining solely to the child shall be exchanged. The applicant shall be responsible for obtaining the book and commencing the initial entry. The book (and any subsequent books) shall be preserved for judicial scrutiny; and (j) The parties shall communicate with one another by email or text on matters pertaining to the child that will impact the parenting schedule provided for herein. Copies of all such exchanges shall be preserved for judicial scrutiny.

26On January 9, 2019 I reserved the costs of that motion to the Trial Judge. If the parties agree, then the costs of this motion shall also be reserved to the Trial Judge and the parties shall confirm this in writing to my judicial assistant. Absent agreement, if the parties cannot agree on costs, the applicant shall serve and file her costs submissions on or before March 15 and the Response is to be served and filed by April 1, 2019. There will be no right of Reply. All costs submissions are to be filed in the Continuing Record, but for a Casebook, which if needed, is to be bound and placed in the file separately. Parties may file a memory stick as an alternative to a casebook. Memory sticks are encouraged to also contain the costs submissions. Costs submissions are limited to three pages, double spaced, exclusive of a Bill of Costs, any Offers to Settle and a Comparison of Offers. Upon filing the costs submissions, counsel are asked to confirm the filing by email to my judicial assistant nurit.suzana@ontario.ca . If no submissions are received by April 2, 2019, there will be no order for costs.

Justice R. Kaufman Date: February 26, 2019

Citations

[1] R.S.C. 1985, c. 3 (2nd Supp), as am. [2] Ibid, s. 16(8) [3] Ibid, s. 16(10) [4] R.S.O. 1990, c. C12 [5] Ibid, S. 20 (4) & (5) [6] Ibid, s. 24(3) [7] Gordon v. Goertz, (1996), 19 R.F.L. (4th) 177 (CA) [8] MacGyver v. Richards, [1995] O.J. No. 770, para. 38 [9] S. (B.L.S.) v. S. (T.M.), 2003 CarswellAlta 133 [10] Panduro v. Davis, 2019 ONSC 1117 per Hood J. (SCO) at para.17