NEWMARKET COURT FILE NO.: FC-12-40780-00

DATE: 2019-12-12

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Mark Meitine Applicant

– and –

Marina Grigoryan Respondent

COUNSEL: Alexandra Abramian, for the Applicant Unrepresented, for the Respondent

HEARD: May 14, 15, 16, 17, 21, 22, 23 and 24, July 19, November 14 and 15, 2019

BEFORE: McDermot J.

Introduction

1Mr. Meitine and Ms. Grigoryan have each had more than their share of challenges. They are immigrants from Russia and both of them have had to adapt to this culture and learn our language. They have two children, David who is 11 and Dina who is 9. Both children are special needs, and are on the spectrum for autism disorder. The parties’ breakup in April, 2012 after less than six years of marriage, was difficult: Ms. Grigoryan was charged with an assault and she needed third party facilitators to see the children who remained with Mr. Meitine. She eventually stopped seeing the children and was absent from their lives for about two years, only reuniting with them in February, 2015.

2Mr. Meitine commenced proceedings soon after the parties separated. Between 2013 and 2015, there was a hiatus when little took place in the litigation. Ms. Grigoryan reconnected with the children when Mr. Meitine returned the matter to court in early 2015 for a settlement conference, and Ms. Grigoryan asked to see the children. After that, Ms. Grigoryan began supervised access with Dina; it was only later that David was willing to see her.

3The matter was originally set down for trial for the May, 2015 sittings. On the first day of trial, on May 19, 2015, the parties entered into Minutes of Settlement which were final on all issues other than access. Mr. Meitine was given full custody of the children, and the property and support issues were settled on a final basis.

4Although custody and the terms of custody were finally settled by the final order, the issue of access to Ms. Grigoryan was not. The parties agreed to supervised access at the Social Enterprise for Canada Access Centre and the Minutes contemplated the parties engaging a therapist to provide reunification therapy between the Respondent and the children. The Minutes provided that access would be reviewed within six months of the order.

5Any objective observer would be of the view that Ms. Grigoryan has, since then, made impressive strides. She initially exercised supervised access to Dina and later, David. After successful reintegration therapy with Joanna Seidel (who testified at trial), she began to provide assistance at the school and graduated to unsupervised overnight access with the children. After reviewing the recommendations by the Office of the Children’s Lawyer (“OCL”) social worker, Bernadine Robillard, who also testified at trial, the parties agreed that care of the children would be equally shared in September, 2017. Both parties have adhered to the schedule suggested by Ms. Robillard since then.

6This is not good enough for Ms. Grigoryan. She commenced this motion to change on September 16, 2016 seeking custody of the children along with full care and control of the children. She says that Mr. Meitine’s care of the children is deficient, and has resulted in increased developmental delay for her children. She also says that Mr. Meitine has made questionable decisions about the children, and in particular did not serve their best interests in moving the children from the public school system to Kayla’s Children’s Centre, a private school for special needs children in Vaughan; as with Mr. Meitine’s care for the children, Ms. Grigoryan believes that this school has exacerbated the children’s problems rather than reduced them. Ms. Grigoryan believes that the only solution is to place the children in her primary care, and that the Applicant be reduced to an access parent.

7In all of this, it is apparent that Ms. Grigoryan is not happy with the consent that she signed in May, 2015. She testified that the duty counsel lawyer failed to provide her with adequate legal advice, and that she was bullied into the order by Ms. Abramian, Mr. Meitine’s lawyer. She says that she did not understand that this was a final order, and she thought that the trial would take place at a later date. However, notwithstanding these complaints, this proceeding was framed as a motion to change the order, and not a motion to set the consent order aside for mistake or fraud under Rule 25(19) of the Family Law Rules.¹

8For the reasons set out below, I have found that there was a material change in circumstances since the date of the order. However, I do not find it to be in the best interests of the children that custody of the children be given to Ms. Grigoryan, and other than the matters which the parties have agreed may go on consent, her motion to change is dismissed.

Analysis

9Because this is a motion to change brought under s. 17(1) of the Divorce Act,² there are two issues before the court:

a. Has there been a material change in the “condition, means, needs or other circumstances” of the children since the date of the order that the Respondent seeks to vary?

b. If the answer to that question is “yes”, then is it in the best interests of the children to vary the 2015 final order in this matter as requested by Ms. Grigoryan, the moving party in this Motion to Change?

10It is to be noted that if the court does not find there to be a change in circumstances as required by s. 17(5) of the Divorce Act, there would be no need to proceed further and the inquiry would end there.

11It is also to be noted that the parties agreed during trial that, at the very least, the final order could be changed to provide for shared custody of the children on the terms recommended by the OCL social worker, Ms. Robillard. As well, Ms. Grigoryan agreed that, if care of the children remained shared, she would abandon her claim for set off child support, and that each party would bear the section 7 expenses for the children incurred when in each party’s care. In particular, this would include the costs of tuition with Kayla’s Children’s Centre which are presently being borne in full by Mr. Meitine; the parties have agreed these expenses would continue to be paid by him without contribution from Ms. Grigoryan.

Material Change in Circumstances

12The May 19, 2015 order states that Ms. Grigoryan’s access may be reviewed. If this were a review, no change in circumstances would be necessary as the order specifically permits that remedy. However, Ms. Grigoryan is not only asking for an increase in access; she requests full custody of the children including the power to make decisions concerning the children, and that can hardly be seen as a review of her access to the children. Therefore, this can only be seen as being a variation proceeding. Because these parties were divorced on June 6, 2016, the jurisdiction for this motion to change therefore lies under s. 17 of the Divorce Act.

13Prior to the court considering making an order varying a custody order, the court must determine that there has been a change in circumstances concerning the child. Section 17(5) of the Divorce Act reads as follows:

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

14The leading case in respect of this subsection is Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27. Although often cited concerning mobility issues, this case also considers the type of material change necessary to change a custody order under s. 17(5). Essentially, prior to considering a request to change a custody order, the court must make a finding that there has been a significant change in the circumstances surrounding the child. At para. 10 to 13, McLachlan J. stated:

10 Before the court can consider the merits of the application for variation, it must be satisfied there has been a material change in the circumstances of the child since the last custody order was made. Section 17(5) provides that the court shall not vary a custody or access order absent a change in the "condition, means, needs or other circumstances of the child". Accordingly, if the applicant is unable to show the existence of a material change, the inquiry can go no farther: Wilson v. Grassick (1994), 1994 CanLII 4709 (SK CA), 2 R.F.L. (4th) 291 (Sask. C.A.).

11 The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its discretion for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued: Baynes v. Baynes (1987), 1987 CanLII 2918 (BC CA), 8 R.F.L. (3d) 139 (B.C. C.A); Docherty v. Beckett (1989), 1989 CanLII 8869 (ON CA), 21 R.F.L. (3d) 92 (Ont. C.A.); Wesson v. Wesson (1973), 1973 CanLII 1951 (NS SC), 10 R.F.L. 193 (N.S.T.D.), at p. 194.

12 What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), 1991 CanLII 839 (BC SC), 35 R.F.L. (3d) 169 (B.C. S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I. S.C.). Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. "What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place": J.G. McLeod, Child Custody Law and Practice (1992), at p. 11-5.

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

15This has been described as a “threshold requirement” without which the inquiry can go no further: Arora v. Luthra, [2019] O.J. No. 4248 (O.C.J.) at para. 11.

16In Arora, Sullivan J. cites Chappell J. in Roloson v. Clyde, 2017 ONSC 3642 at para. 49:

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

17As also pointed out by Sullivan J. in Arora, there is good reason for these restrictions on bringing a motion to change. Children require certainty and permanency, especially special needs children such as the parties’ children in the present case. The entitlement to vary an order as set out in s. 17 of the Divorce Act is not intended to allow an appeal of an order that a party is dissatisfied with or may not be operating as expected. It is to address significant changes in the children’s lives as they age and in the parents’ lives as time goes on. It is not in the best interests of children to allow a parent to go back to court to litigate the children’s issues without good cause as this would rob the children of certainty, and involve them in ongoing and continuous court proceedings just because someone may be dissatisfied with the order and wants it changed.

18The Applicant is therefore correct that there is a high threshold to be reached prior to making an order varying the May 19, 2015 order. The change in circumstances must be significant and long lasting; as well it must have arisen since the making of the order. This is not an appeal of the order in issue and the order is therefore assumed to be correct in all of its aspects, and cannot be changed just because things might not be going perfectly. And even if the change is significant, it cannot have been foreseeable at the time of the order; the change must be something that the parties did not contemplate at the date of the making of the order.

19Although it is not apparent to me that the Respondent turned her mind specifically to this issue at trial, the court must therefore inquire as to the changes in circumstances which have occurred concerning these parties and the children since the date of the final consent order.

20Since May 15, 2015, very few things have, in fact, changed. When the order was made, the children had already been diagnosed as being autistic: David’s diagnosis dates from December 21, 2012³ and Dina appears to have been diagnosed with autism in February, 2015.⁴ The Respondent testified that she was told of the diagnosis of autism in March, 2015, before the order was made. Consequently, although the children’s autism loomed large in the evidence before me, it is not a change in circumstances warranting a change in the order.

21There are, however, three changes which have occurred since the date of the order which are as follows:

a. The parties are now sharing custody of the children whereas, prior to these proceedings and at the time of the order, Ms. Grigoryan was only exercising supervised access;

b. At the time of the order, Mr. Meitine’s mother assisted in providing child care for the children. She is now deceased, and Mr. Meitine has had to hire outside child care workers to care for the children while he is working.

c. Mr. Meitine has since sold his home and moved to a smaller condominium, changing the children’s schools from the public school system to a private school, Kayla’s Children’s Centre, as noted above.

22The court must first consider whether any or all of these changes are sufficient to permit the court to enter into an inquiry into whether there should be a change in the final order made May 19, 2015.

Change in Time Sharing

23It was only in February, 2015 that Ms. Grigoryan was reconnected with her children after an absence of almost two years.

24Mr. Meitine says that it was Ms. Grigoryan’s decision to part company with her children in 2012 and Ms. Grigoryan does not disagree. The parties only differ on the motivation for her doing so. Mr. Meitine suggests that it was because she was no longer willing to attend for access with third party facilitators as required by her bail conditions resultant from her assault charges. On the other hand, Ms. Grigoryan asserts that those third party facilitators were simply unable or unwilling to further assist, and that she also needed time away from her children to establish herself in Canada through obtaining employment, learning the English language and purchasing an automobile.

25Although I suspect that the initial reason for Ms. Grigoryan’s absence was the former, it does not really matter when considering whether there was a material change. The reality is that, by early 2015, Ms. Grigoryan had not seen the children for some time, and needed assistance in reintegrating with them. When the consent order was made on May 19, 2015, Ms. Grigoryan was exercising supervised access to the children only. The order provided for Ms. Grigoryan to have access on Sundays “for two hours supervised at the Social Enterprise for Canada Access Centre.”⁵

26By July, 2016, Ms. Grigoryan graduated to unsupervised access through the intervention of Joanna Seidel who provided reintegration therapy. On July 24, 2017, the OCL investigator recommended that it would be in the children’s best interests if care of the children was shared (although she recommended that Mr. Meitine retain custodial rights concerning the children). In fairly short order, by September of that year, Mr. Meitine had agreed to the equal sharing of custody as recommended by Ms. Robillard. Ms. Grigoryan continues to share custody of the children; she now seeks full custody of the children in these variation proceedings.

27Therefore, in the four years since the order was made, Ms. Grigoryan’s time sharing has changed from supervised visits of two hours per week to shared custody. Is this a material change in circumstances as contemplated by s. 17(5) of the Divorce Act?

28To properly examine this, we must return to what McLachlan J. stated in Gordon v. Goertz about what type of change is sufficient to change a custody order. Among other factors, she stated that the change must be “either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.” For the change to be sufficient to support a motion to change, it must not have been foreseeable or not contemplated at the time of the order.

29Another way to put it is to inquire as to whether the graduation to unsupervised shared custody, if known at the date of the order, would have resulted in a different order: see L.M.P. v. L.S., [2011] SCC 94. If not, the change is not a material change sufficient to permit variation of the order.

30A review of the terms of the order indicates that this question must be answered in the negative. Although Ms. Abramian in her submissions suggested that the access provisions in the order were temporary, this is incorrect. In fact, the access terms were final but contemplated an increase in access from supervised to unsupervised access and a review, if necessary, to achieve this. In particular, para. 7 of the order reads as follows:

The Respondent’s access (particularly the transition from supervised to unsupervised access and expansion of time) shall be reviewed by no later than six months. (emphasis mine)

31It is apparent that the order contemplated an increase in access from supervised to unsupervised access. It also contemplated an expansion of time sharing in favour of Ms. Grigoryan.

32Therefore, an increase in access to Ms. Grigoryan was contemplated by the order and was foreseeable by the parties when the consent was entered into. The fact that the exact change was not set out in the order is not necessary for a finding that the change was foreseeable. Therefore, the increase in time sharing from supervised to shared care and control is, on its own, insufficient to permit a variation in the May, 2015 custody order.

Change in Caregiver

33When the order was made, Mr. Meitine’s parents were living with him, and providing care for his children. They came from Russia to assist Mr. Meitine in caring for the children while he worked.⁶ Although there was a period of time during which Mr. Meitine was unemployed, his parents, and in particular his mother, continued to assist in caring for the children throughout until his mother was diagnosed with pancreatic cancer, and passed away in October, 2017.

34Mr. Meitine’s father continued to assist with the children until he returned to Moscow in March, 2018; he determined a month later that he was not returning to Canada.

35After his mother’s death, Mr. Meitine was forced to arrange for outside caregivers to assist him with the children. He initially hired a caregiver from Kazakhstan in October, 2017, but that caregiver could not obtain a work permit and had to leave Canada. After that, Mr. Meitine hired Olga Schwartzkopf as a child care provider in January, 2018. When Ms. Schwartzkopf moved on, Mr. Meitine hired Cristina Kazdan to provide child care for the children in September, 2018.

36Ms. Grigoryan says that she was not properly informed of these child care providers being involved with the children. She also relies upon these changes in circumstances to permit her to bring this motion to change.

37Very little evidence was provided to me about the exact role that Mr. Meitine’s mother had played with the children. I know that she was involved in caring for the children but the evidence led by Ms. Grigoryan about Mr. Meitine’s parents was sparse, and mostly concentrated on how Mr. Meitine’s parents did not meet the children’s needs as Ms. Grigoryan might have. Ms. Grigoryan’s cross examination of Mr. Meitine concerning his parents mostly concentrated on his failure to inform rather than the nature of the care provided. That can be echoed in Ms. Grigoryan’s cross examination about the subsequent caregivers for the children.

38Ms. Robillard addressed Mr. Meitine’s parents’ treatment of the children, and noted in her observations that Mr. Meitine’s mother “did not engage with the children” and that his father’s interactions with the children were “limited”.⁷ She recommended that Mr. Meitine look into alternate long-term caregivers due to his “parents age”.⁸ As it turned out, the change in caregivers was forced onto Mr. Meitine as a result of his mother’s death and his father’s return to Russia.

39I do not find this to be a change in circumstances sufficient to warrant this motion to change. I return to the case law respecting the nature of a change in circumstances which would allow variation proceedings to change custody under s. 17 of the Divorce Act. McLachlan J. stated in Gordon v. Goertz that “the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way”. In Roloson, Chappell J. suggested that the change must be “significant and long lasting”.

40If Mr. Meitine, had changed day care providers, this would generally not be sufficiently significant allow these variation proceedings. Based upon the dearth in evidence as to the roles that Mr. Meitine’s parents placed in the children’s lives, as well as Ms. Grigoryan’s negativity about their assistance in the children’s upbringing, I cannot find the loss of their assistance anything more significant than a change in the child care arrangements for the children after Mr. Meitine’s mother’s death.

41That is not sufficient to support this motion to change, and I do not find this factor, the loss of Mr. Meitine’s mother, a material change in circumstances within the meaning of s. 17(5) of the Divorce Act.

Change in Residency and Schooling

42In May, 2018, Mr. Meitine sold his home in Woodbridge and moved into a two-bedroom condominium in North York. At the same time, he took the children out of their public schools in York Region,⁹ and enrolled them in Kayla Children’s Centre, which is a private school for special needs students in Vaughan.

43Mr. Meitine described Kayla in glowing terms, noting that there were occupational and speech therapists on staff and the children received assistance with their ADS under one roof. He suggested that this placement offered a wholistic approach to the children’s condition, allowing the children to have all their needs addressed in one place, rather than the piecemeal approach in the public schools. He noted that in the public schools, there were, because of resource issues, only occasional visits by an occupational therapist and speech therapist, and he was forced to obtain outside therapists. This was largely confirmed by the testimony from the children’s public school teachers, who confirmed that once the Individual Education Plan was formulated by the professionals on a semi-annual basis, the responsibility for implementation of the plan was in the teacher’s hands and there were few visits by the therapists, who had to attend to a number of special needs classes in different schools. Mr. Meitine confirmed that the tuition for Kayla was about $30,000 per year,¹⁰ although 90% of that was covered by subsidies.

44Ms. Grigoryan is extremely critical of both the change in schools and in the new residence purchased by Mr. Meitine. Regarding the schools, she says that the children do not get the socialization that they had in the public system and are, effectively, stigmatized and pigeon-holed as autistic children by the school in which they have been placed. She was able to help the children by volunteering in the public-school system, but is not an option at Kayla and she feels that the children have lost the benefit of her assistance because of the move. She led extensive evidence that the children were best served by remaining in the public system.

45A lot of evidence was led on this point. The children’s teachers and principal from the public-school system were called as witnesses. They were all complementary to Ms. Grigoryan concerning her assistance to the children. All of the public-school educators said that the children were thriving in their respective community classes, and that they were progressing as they should. They noted that when the change in schools was made at the end of the 2017-18 school year, there was little communication about the decision by Mr. Meitine and although they offered to assist in the transition, no request was made for help by Mr. Meitine. One day the children were in their respective public schools; the next day, they were gone.

46There was no evidence from the staff at Kayla. The totality of information about Kayla came from Mr. Meitine only.

47Ms. Grigoryan sought by way of motion to prevent the children from changing schools. Her motion was dismissed by Kaufman J. on August 16, 2018. The children are now in their second academic year at Kayla.

48Moreover, Ms. Grigoryan complains that the children are now in housing which is too small. She says that the two-bedroom condominium that Mr. Meitine purchased does not serve the children’s needs and is too small.¹¹

49For the court, the issue is not whether this was a decision that served the children’s best interests. The only consideration at this point is whether this is a change in circumstances sufficiently significant to support the Applicant’s motion to change.

50Both of the children in this matter suffer from autism spectrum disorder (ASD). There is a clear diagnosis of both children which was also known when the Graham J. order was made. Although Ms. Grigoryan now says that she accepts the diagnosis of ASD, she still maintains that the children’s symptoms are milder while in her care, and that the children were thriving with her involvement with the children in the public-school system. She says that the change of schools and residency is harmful to the children and has caused setbacks to the children’s road to normalcy.

51The proposed change was not known at the date of the order. In fact, it is also apparent that Mr. Meitine’s placement of the children with Kayla and the move to North York was not contemplated when the OCL Social Worker prepared her report.

52As noted above, the real issue is whether this change is “significant” or “long lasting” or whether the change affects the ability of either of the parents to meet the children’s needs.

53All children need stability in their lives to thrive; changes in residency and school are difficult for them to manage, and cause disruption in their lives. From any child’s perspective, a change in school or residency would be difficult to manage; a change in both at the same time would be more than disruptive. For children with ASD, such as the children in this case, the changes in school and in residency would be particularly disruptive; I believe it is trite that children with ASD find change difficult to manage, and those changes can cause setbacks in their progress.

54Ms. Grigoryan says that the children have been profoundly affected by these changers, especially the change in school. She says that the children have lost the opportunity to integrate into the regular school community as Kayla is a school with 16 special needs children. She says that David does not enjoy his experience at Kayla and did not want to go to school, while he was content to attend at his old school. Her evidence was that the children have been negatively affected by their new school, and should never have been removed from the public system.

55Although I do not necessarily accept the correctness of Ms. Grigoryan’s assertions, I do accept that these two decisions are important to the long-term well-being of these children. If we were discussing the difference between major decisions and day to day decisions in the context of a parenting plan, the decision to change the residency of the children from a home to a condominium, and at the same time changing schools from the public system to a private specialized school, would be classified as a major decision. The choice of school, especially in the case of special needs children such as David and Dina can be seen as a choice which could result in lifelong changes to those children. The decision to move the children from Vaughan to North York, to move the children into a smaller condominium apartment, and to change their schools, all taken at the same time, can be seen as nothing other than a significant change which could very well affect the children in the long term.

56Therefore, I find that these two decisions taken together are a material change in circumstances concerning the children within the meaning of s. 17(5) of the Divorce Act, sufficient to permit the court to enter into an inquiry as to whether there should be a variation in the custody order made by Graham J. on May 1, 2015.

Should the Order Be Varied?

57Once the court has found there to be a change in circumstances, the court must inquire as to whether there should be a change in the order based upon the best interests of the children. Although s. 17(5) of the Divorce Act states that the court is to determine the best interests in light of the change in circumstances, this is not the only factor to be taken into account; the inquiry must be a general inquiry into the best interests of the child without reference to the existing custodial arrangement provided without onus on either party: as stated in Gordon v. Goertz, supra, at para. 18, “the material change places the original order in question; all factors relevant to that order fall to be considered in light of the new circumstances.” See also para. 40 of Gordon v. Goertz. The conduct of the parties can only be reviewed when relevant to his or her ability to parent the child. The other factor mentioned in the Divorce Act is the maximization of contact between each of the parents and the child as well and the court may inquire as to which parent is more willing to encourage contact between the child and the other parent: see Gordon v. Goertz, supra at para. 17 to 25.

58Although this is a case under the Divorce Act, it is also useful to outline the factors in the Children’s Law Reform Act,¹² provincial legislation, as a guide to the best interests of the children. These factors are set out in s. 24(2) as follows:

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

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

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

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

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

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

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

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

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

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

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

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

59The factors in considering the best interests of a child or children can be broken down into several headings. These are:

a. Promotion of contact between the child and the other parent (specifically mandated in the Divorce Act);

b. Stability factors: how stable is the home offered by each of the parents (CLRA, ss. 24(2)(c), (d), (e) and (f))?

c. Love and affection factors: which parent is best able to address the emotional and physical needs of the child or children (CLRA, ss. 24(a) and (g))?

d. The views and preferences of the child depending upon whether these views and preferences can be ascertained (CLRA, s. 24(b));

e. Connection through family or adoption (CLRA, s. 24(h))

60It is to be noted that these are not exhaustive factors and they are given weight based upon the facts of the particular case including the children’s special needs or level of development.

61In the present case, the views and preferences of the children cannot be easily ascertained because of their special needs and their ages. This is clear from the report of the OCL investigator, Bernadine Robillard, who stated that, because of the diagnosis of ASD for both children and their resultant communications issues, neither child could be interviewed to ascertain their views and preferences.

62Section 24(h) of the CLRA is not a factor as both parents have an equal blood tie and neither parent has extended family in Canada.

63The factors to be considered are therefore as follows:

a. Which parent is more likely to promote contact between the children and the other parent?

b. Which parent is best able to meet the children’s emotional and physical needs taking into consideration the special needs of the children?

c. Which parent is best able to offer the children stability? Which parent’s plan is best able to meet the needs of the children?

Maximization of Contact

64Section 17(9) of the Divorce Act provides that in determining the best interests of a child in variation proceedings, consideration must be given to which parent would be most likely to encourage contact between the children and the other parent:

(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.

65Ms. Grigoryan strongly advocated that the children would be better off in her primary care. She says that she is better able to meet the children’s needs and that Mr. Meitine should be reduced to an access parent rather than enjoying shared custody as is the present case. Although she maintained in her evidence that she did not wish to deprive Mr. Meitine of time with the children, she was also extremely negative about his care for the children. She told Ms. Robillard, the OCL investigator, that she “blames Mr. Meitine, citing the lack of interactions and socializations as the reason for [the children’s] present problems in the area of language acquisition and expression.”¹³ Later, Ms. Robillard noted that “Ms. Grigoryan blames the father for the children (sic.) symptoms of Autism.”¹⁴ Implicit in these statements is the suggestion that limiting the time that the children have with their father will improve their mental health and reduce their autism.

66Contrast this with the actions and the statements made by Mr. Meitine. In 2015, even when Ms. Grigoryan had been absent from the children’s lives for nearly two years, he was willing to consent to an order which contemplated her reintegration with them. He entered into reintegration counselling, which resulted in overnight unsupervised access to Ms. Grigoryan over the following year. In her report, Joanna Seidel, the reintegration therapist, said that:

…Mr. Meitine is supportive of Ms. Grigoryan being a meaningful part of the children’s life and has also embraced the reunification. He believes that the children need their mother and that both David and Dina have been very responsive to their reconnection with their mother. He has shared that he would like a parenting schedule that reflects Ms. Grigoryan’s frequent involvement with the children.¹⁵

67In July, 2017, the OCL investigator recommended shared time sharing of the children on an equal basis. By that time, the parties were already sharing custody of the children during the summer. Almost immediately upon the report being issued, Mr. Meitine agreed to share custody of the children according to the recommendations of the OCL investigator.

68Ms. Grigoryan blames Mr. Meitine for the time it took for reintegration therapy to get underway. She suggested that Mr. Meitine frustrated the process with the first reintegration therapist appointed, Dr. Holloway. She also says that Mr. Meitine purposefully delayed the appointment of Joanna Seidel after Dr. Holloway did not work out.

69The evidence does not bear out these assertions. Dr. Holloway was appointed in August, 2015. Mr. Meitine determined fairly quickly that Dr. Holloway was not willing to work on weekends or evenings, when Mr. Meitine was not working. On September 3, 2015, Dr. Holloway wrote to Ms. Grigoryan to state that he could not assist the parties because of meeting times.¹⁶ Through his lawyer, Mr. Meitine suggested on September 11 that they get someone else but Ms. Grigoryan refused.¹⁷ She admitted in cross examination that she refused to consider other options because Dr. Holloway “was the best bet for me.” She later brought a motion for contempt because of the failure to use Dr. Holloway; that motion was returnable in January, 2016, delaying the commencement of reunification therapy even further.

70It was only in February, 2016 that an order was made that Joanna Seidel assist the parties. It took until May of that year for the parties to sign an agreement engaging Ms. Seidel. In cross examination, Ms. Grigoryan admitted that she refused to sign the agreement because of hourly rates and the engagement of a second therapist by Ms. Seidel.

71It is apparent from the evidence that the responsibility for the delay in the commencement of reunification therapy rests with Ms. Grigoryan, and not Mr. Meitine, who appears to have acted promptly in dealing with the unavailability of Dr. Holloway. It was Ms. Grigoryan and not Mr. Meitine who delayed signing the agreement with Joanna Seidel. Throughout, Mr. Meitine was always willing to engage in reunification therapy and Ms. Grigoryan’s narrative that Mr. Meitine was responsible for the delays is inaccurate.

72It is also important that Ms. Grigoryan said that Dr. Holloway was the “best bet for me.” Reunification therapy has to be seen as being for the benefit of the children as was extending the time sharing for Ms. Grigoryan with the children. It was not for the benefit of either of the parents. The evidence makes it clear that Ms. Grigoryan was unable to understand this, and was wrapped up in her own needs when she insisted on Dr. Holloway and later refused to sign the agreement with Joanna Seidel. If she were given custody, I believe that she would take the same approach to access to Mr. Meitine: his access would not be viewed through the lens of what is best for the children, but rather her own needs and wants. In light of her negative views of Mr. Meitine, I believe that Ms. Grigoryan would quickly marginalize Mr. Meitine from the lives of the children if she were given custody of David and Dina.

73The evidence is the opposite for Mr. Meitine, who has historically encouraged time sharing of the children with Ms. Grigoryan. Throughout, Mr. Meitine’s actions speak louder than words, insofar as he has demonstrated his willingness throughout to involve Ms. Grigoryan in the lives of the children and to agree to shared custody of the children as recommended by Ms. Robillard. On the other hands, Ms. Grigoryan wants to have the children live with her, leaving Mr. Meitine as an access parent only. Viewed from the positions of the parties, combined with Mr. Meitine’s historical actions in voluntarily increasing time sharing throughout, I can easily find that the parent who would continue to maximize contact with the children with both parents is Mr. Meitine.

Ability to Meet the Children’s Needs

74The evidence of Mr. Meitine makes it clear that he cannot be described as a warm individual. His comportment is that of an unemotional and highly rational individual. He is a scientist, a physicist, and he acts the role.

75Ms. Grigoryan, on the other hand, showed herself to be effusive and emotional in her presentation, and by all accounts, is highly engaged with the children. The evidence was clear that her involvement with the children in their schoolwork, both at their schools and at home when she began seeing the children, was beneficial and improved their language and other skills. Her reinvolvement in the children’s lives has clearly been to the benefit of the children. She was adamant at trial that her skills as a teacher equate to a finding that it is in the best interests of the children that they live with her.

76The major issue raised by the evidence is whether a finding as to Ms. Grigoryan’s acknowledged abilities in assisting the children with their disabilities and diagnosis of ADS also leads to a finding that Ms. Grigoryan is best able to meet the children’s emotional and physical needs in determining custody of the children.

77My starting point in reviewing the testimony of the parties is the report of Ms. Robillard. She reported that the home visits did not seem to show any difference in how either parent dealt with the children. In fact, the report seems to state that Ms. Grigoryan was of the view that the children did not do as well in the care of Mr. Meitine as they did in her care. For example, at one point, Ms. Grigoryan asserted that “she disputed Mr. Meitine’s concern regarding the children’s communication and social needs as she stated the children do not have the same concerns when in her care.”¹⁸

78There do not appear to be grounds for this view. I would firstly note that Ms. Grigoryan had the same difficulties in engaging with the children during her observation visit as did Mr. Meitine; the only difference was that, during that visit, Ms. Grigoryan appeared to be focussing on showing the investigator pictures of activities in which she involved the children rather than engaging with the children as suggested by the investigator.¹⁹ Secondly, Ms. Grigoryan appears to be stating that the children do better with her than Mr. Meitine, but only bases this on Mr. Meitine’s expressed concerns about the children: she has no idea of how the children are in Mr. Meitine’s care as she had not lived with him or observed him with the children since the parties separated in 2012.

79Ms. Grigoryan also enlisted the help of a friend, Al Snowball, who testified at trial as part of Ms. Grigoryan’s case. He had known the parties prior to the children being born. He was Ms. Grigoryan’s ESL teacher (English as a Second Language).

80Mr. Snowball testified that he did not think much of Mr. Meitine as a parent or at all, and described him as “overbearing” and “controlling” of Ms. Grigoryan. He said that Mr. Meitine was not “supportive” of Ms. Grigoryan, and said that he failed to obtain documents from the Russian Embassy for Ms. Grigoryan when requested to do so. He described Mr. Meitine as “angry”.

81Ms. Grigoryan also asked Mr. Snowball about her parenting skills as well as Mr. Meitine’s parenting style. Mr. Snowball testified that when the children reconnected with Ms. Grigoryan, they were “wild”, “fearful” and “uncontrolled”. He says that Ms. Grigoryan has a home “like a classroom” with activities and exercise equipment for David. He testified that the children have improved greatly since spending half the time with Ms. Grigoryan, and described Ms. Grigoryan as being “gentle” and says that her relationship with the children was “warm and physical”. He says that although he still cannot carry on a conversation with David, he can ask him questions and he answers in a “coherent” manner.

82To some extent this was confirmed by Ms. Robillard, who said that Mr. Meitine’s home was “disorganized” while Ms. Grigoryan had a very child centred home. Notwithstanding this, Ms. Robillard recommended that Mr. Meitine should retain his custodial rights, and that custody should be shared.

83From his testimony, it was clear that Mr. Snowball was not objective about Mr. Meitine. He was clearly in Ms. Grigoryan’s corner in the matrimonial litigation. He said that he had come home from a visit with the parties prior to separation and told his wife that Mr. Meitine knew nothing about parenting. He got this impression from spending 10 minutes with Mr. Meitine when he was walking David in a stroller in the hallway; Mr. Snowball said that Mr. Meitine concentrated on proving that he was a good parent. Mr. Snowball talked of Mr. Meitine “strutting” during that interaction. That is the only time, prior to 2012, that Mr. Snowball observed Mr. Meitine in a parenting role.

84I do not find Mr. Snowball to be a credible witness. I accept that Ms. Grigoryan is a good parent, and is making a positive difference in the children’s lives; the children’s teachers and principals all confirmed that in their evidence. However, Mr. Snowball has never observed Mr. Meitine parenting the children in any sort of meaningful fashion, and for him to conclude that Mr. Meitine is a bad parent from a 10 minute interaction prior to 2012 leads me to believe that Mr. Snowball is neither an objective observer nor a credible witness concerning parenting issues in this litigation. He was in court to support Ms. Grigoryan, and did so in giving his testimony; his evidence about Mr. Meitine, however, shows his bias towards Ms. Grigoryan. I therefore discount his evidence concerning the parenting issues in this litigation.

85As well, the history of the matter again instructs the court as to who is able to offer greater stability for the children. One has to remember that Ms. Grigoryan made a decision in 2012 to stop seeing her children, and she maintained that position for nearly two years. She says that she did it to work on language skills, obtain her citizenship and buy a car; Mr. Meitine theorizes that she refused to comply with the court order requiring her to have a third party present at the access exchanges. Whatever the reason, Ms. Grigoryan’s decision to have a two-year hiatus from the children remains inexplicable and even if I accept her reason for that break, it shows a certain instability on her part which leaves me extremely concerned about her future ability to provide consistent care for the children.

86On the other hand, Mr. Meitine has continued to do the lion’s share in caring for the children. He has, throughout and largely alone, provided a home for the children, has addressed with the diagnosis of the children and obtained the schooling and programs that the children needed. He did all of this without assistance from Ms. Grigoryan. Although the public school officials who testified were implicitly critical of Mr. Meitine (they criticized his decision to place the children in the Kayla Children’s Centre and his failure to seek assistance in the transition to Kayla; they also said that he appeared to be uninvolved with education of the children), these children would not have had the excellent assistance for their ASD condition were it not for Mr. Meitine. The person who met the needs of the children during the very crucial time after their diagnosis was Mr. Meitine, and there is no reason why he will not continue to address the needs of the children.

87Another concern is the fact that Ms. Grigoryan continues to maintain that the children do better in her care than in Mr. Meitine’s. Her initial position was that the children only showed autistic symptoms in Mr. Meitine’s care and not while in her care.²⁰ She admitted during trial that the children were on the Autism Spectrum, but never abandoned her belief that the children did better in her care. Yet she admitted during cross examination that this belief had no basis as she had not observed the children with Mr. Meitine. However, the Respondent’s evidence that the children were only autistic or more autistic in the care of Mr. Meitine makes no sense, and highlights the Respondent’s belief that the children’s father was not as good a parent as she is. The inconsistent and unclear beliefs that the Respondent had respecting the children’s autism give rise to concerns as to whether Ms. Grigoryan will address the children’s ASD if they are placed in her care; she seems to say that she will address this on her own through home schooling, initially at least. As well, an indicia of parenting ability for the children is the support that each parent has for each other, and Ms. Grigoryan is definitely not supportive of Mr. Meitine’s parenting of the children; Mr. Meitine is the opposite, encouraging time sharing with Ms. Grigoryan and supportive of Ms. Grigoryan’s parenting of the children.²¹

88For all of these reasons, I find that Mr. Meitine is better equipped to meet the emotional and physical needs of the children than is Ms. Grigoryan.

Stability and Planning Issues

89From his actions, we know what Mr. Meitine’s plans are for the children. He has placed them in a private school, the Kayla Children’s Centre, and he is seeking out necessary resources for the children through the staff at that school. Those resources include full time speech and occupational therapists for the children who work at Kayla. He has child care through nannies that he has hired for the children now that his father has returned to Russia. He has agreed to shared care with Ms. Grigoryan, who now has the children in her care for one half of the time as recommended by the OCL investigator.

90As far as the children’s physical well-being goes, Mr. Meitine has a good income. He has purchased a two-bedroom condominium but the children each have a bedroom; Mr. Meitine sleeps in the living room. He is well able to meet the children’s physical needs, and has done so since the parties separated.

91Ms. Grigoryan says that Mr. Meitine’s plans are lacking. She says that she has a better plan. She is now maintaining a three-bedroom apartment, and earns an income in an unclear amount as a music teacher. She owns a vehicle, and has obtained her Canadian citizenship. At present, she maintains a stable home where she has lived for a longer stretch of time than Mr. Meitine has lived in his condominium.

92In her testimony, Ms. Grigoryan laid out her concerns as to Mr. Meitine’s plan for the children and his present parenting. She also recited her plans for the children were they placed in her care.

93Ms. Grigoryan says that Mr. Meitine’s choice of schools is a poor one. She claims that the children will not be properly integrated into regular school at their present school. She led extensive evidence through the children’s former educators to prove that the children’s education in the public system was superior to that at Kayla. These educators suggested that the children were improving at their public school placements. Ms. Grigoryan suggested that, as Kayla is a specialized school, the children would not be properly integrated into a regular classroom as soon as they would have been in public school. The evidence that Ms. Grigoryan led suggested that, if the children were returned to her care, they would be returned to the public system.

94However, when Ms. Grigoryan testified as to her plan, the public school system was surprisingly not an immediate option for the children. Instead, Ms. Grigoryan said that she planned to home school the children. Although she said this was a transitional phase (presumably with public school the end result), she testified that she planned to home school the children for at least six months, if not a year. Therefore, the children were not to be placed back into their former schools; they were to be subjected to a third option which was a home-schooling option.

95She retreated from this position when giving submissions. In submissions, Ms. Grigoryan said that she had been misunderstood, and that the home-schooling option would only be a matter of months, and was for the purpose of transition only. This may have been in response to Mr. Meitine’s counsel’s submissions, which were critical of the home-schooling option, but this raised concerns about what the Applicant’s plan really was, or whether it was well thought out. Certainly Ms. Grigoryan raised an option that has never been tried out with these children, and she did so without really explaining how this was in the children’s best interests.

96Ms. Grigoryan’s other plans for the children were similarly concerning. At present, she shares custody of the children with Mr. Meitine; she says that her hours and work are sufficiently flexible to allow her to work when she does not have the children. When asked on cross examination as to who would take care of the children when she was working when the children came to live with her, she said that she would rely upon her friends to take care of the children free of charge. When asked about her financial situation, it became apparent that she relies upon the charity of others to make ends meet, citing numerous gifts from friends and family from here and from overseas. She said that she also relies upon friends to purchase clothing for the children. She had plans to open a summer day care with a friend (a cake decorator) so that the children would have a summer camp experience at no charge. No thought had been given to licensing or safety concerns.

97In fact, the testimony and submissions of Ms. Grigoryan were studies in retreat and regrouping. She initially said that the children were not autistic while in her care, but were autistic when in the care of Mr. Meitine. She blamed Mr. Meitine for the children’s autistic diagnosis. She continued to maintain this position with Ms. Robillard as late as 2017. Implicit in all of this was a denial that the children actually were autistic as autism is a mental health condition, and not dependent upon the children’s environment. When Ms. Grigoryan realized that this was a somewhat questionable position, she then agreed with the diagnosis of ADS, but said that her assistance with the children mitigated the children’s autistic symptomology.

98Similar to this was her position respecting home-schooling, which she appears to have realized was inconsistent with the evidence that she had previously led. She retreated from her position as to home schooling given during testimony and suggested that her testimony was “misunderstood.”

99Ms. Grigoryan was a poor witness throughout. She gave testimony inconsistent with earlier evidence provided in affidavits in the course of these proceedings and later gave final submissions inconsistent with her previous trial testimony. She was unable to give clear and credible evidence respecting the children. This does not only go to her credibility; it also goes to the issue of the stability that she can offer to the children. If she is inconsistent with the court, then she may very well be inconsistent in her plans for the children. In fact, because of her inconsistencies, I have been provided with no clear and credible plan for her care for the children if custody was changed in her favour.

100The Respondent has ample quantities of love and nurturing for the children, but children need more than that in their upbringing. They need solid and realistic planning along with financial stability for their well-being. These latter qualities are lacking in Ms. Grigoryan’s planning for the children. Her proposals for schooling were confusing and inconsistent, and offered a scenario that relied upon her own skills and abilities rather than the institutional ones available either through Kayla or the public-school system. Notwithstanding the fact that Ms. Grigoryan led a lot of evidence about the benefits of the public-school system, she ended up requesting the court to choose between her own abilities and the private school that Mr. Meitine placed the children in. She had no clear financial path to caring for the children except for, perhaps, obtaining gratuitous support from friends or child support from Mr. Meitine, and I received no submissions from Ms. Grigoryan concerning child support.

101I find that Ms. Grigoryan has not offered a viable or realistic plan to care for the children if she is given custody of the children. Based on the evidence as set out above, the children’s best chance at a stable home, life and education lies with Mr. Meitine.

Decision Making

102The order of Graham J. that is in issue provided that Mr. Meitine have custody of the children. Notwithstanding the shared care of the children, Mr. Meitine wishes to retain custodial rights concerning the children. In other words, he wishes to be the one who makes decisions concerning the children without interference from Ms. Grigoryan. This is in line with the recommendations of the OCL Social Worker in her report.

103Ms. Grigoryan says that she wishes to be involved in her children, and complains that Mr. Meitine failed to comply with paragraph 3 of the order which requires him to provide “information and updates regarding the Children’s doctors, school and other healthcare providers”. She says that Mr. Meitine makes bad decisions for the children, and that she should be involved in these decisions.

104In fact, although it is correct that Mr. Meitine did not consult with Ms. Grigoryan about decisions concerning the children, the evidence shows that he did notify Ms. Grigoryan about those decisions as and when they were made. The order did not require consultation but only that Mr. Meitine advise of changes affecting the children.

105It is apparent to me that these people cannot agree on a lot. The most recent example of a disagreement between the parties was Mr. Meitine’s decision to place the children in the Kayla Children’s Centre and move to the condominium in North York. That decision resulted in a motion brought by Ms. Grigoryan to prevent the change in schools which was argued before Kaufman J. The Respondent’s motion was dismissed with costs on August 16, 2018.

106In Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275, the Court of Appeal stated that joint custody should not be ordered unless there is “some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another” [para. 11]. It is presumed that it cannot do children any good to have constant disagreements between the parents without a clear direction by which the children are raised. This is especially so where the parents fight viciously in front of the children. I note that a clear direction in parenting is even more necessary for special needs children such as in the present case.

107There is little or no evidence that these parents are able to co-parent these two children. The marriage ended badly, when Ms. Grigoryan was charged with an assault; eventually she made the unilateral decision not to see the children for nearly two years. Since Ms. Grigoryan reconnected with the children, there have been a number of disputes resolved by unilateral action by one or the other parent. Outside of the schooling issue, the parties had difficulty in agreeing to a reconciliation counsellor, eventually turning to the courts for assistance. They have not been able to agree on treatment for the children’s ADS diagnosis, with Ms. Grigoryan stating that the children are “less autistic” in her household than in Mr. Meitine’s.²² Ms. Grigoryan takes a dim view of Mr. Meitine’s parenting abilities. There was little or no evidence of “effective communication” between the parties as required by Kaplanis.

108The OCL investigator, after observing both parties, stated that both parties were equally able to care for the children and that both parents loved their children. However, because of Ms. Grigoryan’s views of Mr. Meitine’s parenting and her inability to accept the diagnosis of ASD, the investigator recommended no change to the order as far as custody was concerned, and that Mr. Meitine be granted full custody of the children.

109I find that the level of communication between these parties is insufficient to permit shared decision making between the parties. Mr. Meitine should retain custody of the children and sole decision-making power concerning these children.

Disposition

110The evidence makes it clear that the Respondent cannot have custody of the children. For the reasons set out above, the person best able to meet the needs of the children and to provide them with both support and stability is the Applicant. Therefore, the court cannot accede to Ms. Grigoryan’s request for primary care of the children or custody of the children. The best interests of the children dictate that Mr. Meitine needs to remain involved with the children, and have at least half of the time with the children as per the present status quo.

111As well, the parties cannot jointly parent the children. The Applicant has, to date, been in charge of the children and has done a credible job. He should retain decision making authority concerning the children.

112The Respondent’s motion to change is therefore dismissed.

113The parties have agreed that, at the very least, care of the children should be shared as recommended by Ms. Robillard. I have inserted the entire time-sharing schedule as proposed by Ms. Robillard in her report; if that is not the intention of the parties and I am mistaken in making this order, the parties may submit a consent by way of a 14B motion to be placed before me in Barrie. Alternatively, either party may set up a further appearance before me on a case management day in Barrie through the trial coordinator.

114There is no need for the review clause as this is, effectively, what this court case was all about.

115The parties have agreed that, if custody is shared, there shall be no support payable by one party to the other, and that each party would bear the costs of the children while in that party’s care. This is subject to Mr. Meitine being solely responsible for costs of the private schooling for the children at Kayla.

116There shall therefore be a final order as follows:

a. On consent, paragraphs 4 to 9 of the order of Graham J. dated May 19, 2015 shall be deleted from the order, and replaced with the following provisions:

The Applicant and the Respondent shall share care of the children as follows:

i. Every other week Saturday 10 AM to the following Wednesday and alternating Monday to Wednesday drop off at school. Ms. Grigoryan shall provide the children with transportation to and from their current school placements;

ii. Each year the children will be with one parent from the beginning of Christmas break until Christmas Day at 3 PM. They will then be with the other parent from Christmas Day at 3 PM and remain there for the same number of days as previously spent at the first parent's house. This is to alternate between the parents from year to year;

iii. The March Break week will alternate from year to year between the parties;

iv. The children shall be in the Respondent’s care on Mother's Day, commencing the previous evening at 4 PM and in the Applicant’s care on Father's Day, commencing the previous evening at 4 PM;

v. The children will have two individual two week blocks of access over the summer months with the Respondent; and

vi. There shall be further time sharing as agreed between the parties.

b. On consent, paragraphs 26, 27 and 28 of the said order shall be varied to provide that neither party shall pay child support to the other and each party shall be responsible for the s. 7 expenses incurred while the children are in the care of that party. The Applicant shall be solely responsible for the costs of the children’s private schooling at the Kayla Children’s Centre.

c. Other than as set out above, the said order shall remain in full force and effect and the Respondent’s motion to change is dismissed.

d. Support deduction order to issue.

117The parties may make written submissions as to costs. The costs submissions are to be submitted to the judicial assistant and shall be no more than five pages in length, not including any offers to settle or bills of costs. Submissions to be submitted by the Applicant first and then the Respondent on a ten-day turnaround.

McDERMOT J.

Footnotes

1. 1O. Reg. 114/99
2. 2R.S.C. 1985, c. 3 (2nd Supp.)
3. 3See correspondence from Dr. D. Kimmons dated December 21, 2012 (Trial Ex. 12).
4. 4See the Developmental Assessment Report dated February 5, 2015 (Trial Ex. 38)
5. 5Paragraph 2 of the order of Graham J. dated May 19, 2015
6. 6It is unclear from the evidence as to exactly when his parents came from Russia. The evidence indicates that Mr. Meitine’s mother was in the home after separation and arranged the access visit in June 2012, when Mr. Meitine says that Ms. Grigoryan refused to return the children which resulted in police involvement.
7. 7OCL Investigative Report dated July 24, 2017, p. 11
8. 8Ibid., p. 16.
9. 9David was in a community class at Discovery Public School in Vaughan and Dina was in a similar class at Michael Cranny Elementary School in Maple.
10. 10He was unclear as to whether this was $30,000 per year per child, or whether this was the total amount for both children.
11. 11It is to be noted that the OCL investigator said that Ms. Grigoryan had a two-bedroom apartment as well. Ms. Grigoryan testified that this was a mistake, and her apartment has three bedrooms: see Trial Ex. 73 which was correspondence from Ms. Grigoryan’s property manager confirming that she lives in a three bedroom apartment.
12. 12R.S.O. 1990, c. C.12
13. 13OCL Investigative Report dated July 24, 2017 at p. 13.
14. 14Ibid. p. 15.
15. 15Reintegration Therapy Report of Joanna Seidel dated August 16, 2016 (Trial Ex. 53) at p. 9
16. 16See email from Dr. Holloway dated September 3, 2015 attached to Ms. Grigoryan’s email to Ms. Abramian dated September 8, 2015, Trial Ex. 31.
17. 17See Trial Ex. 32.
18. 18OCL Investigative Report, op. cit. at p. 14.
19. 19Ibid. p. 12.
20. 20See paragraph 33 of the Respondent’s affidavit sworn December 5, 2016 (filed as Trial Ex. F respecting credibility issues) where she says “[t]he children’s autism – not in my presence. The Children’s Autism, no communication, no social reciprocity – are not in my presence.” See also the OCL report of Ms. Robillard at p. 15 where the investigator says that “Ms. Grigoryan blames the father for the children (sic.) symptoms of autism.”
21. 21At p. 15 of her report, Ms. Robillard indicated that Mr. Meitine “did not speak of [Ms. Grigoryan] in negative terms.”
22. 22In fact, Ms. Robillard noted that “Ms. Grigoryan has been unable to accept the recommendations and strategies of qualified services as they differ from her beliefs” and that “Ms. Grigoryan has maintained that the children are not autistic and that they require her behavioural approach as she states that she is a ‘successful teacher’”: OCL report at p. 15.