GODERICH COURT FILE NO.: FS-18-5-00

DATE: 20201123

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Christopher Michael Wright Applicant

– and –

Robin Elizabeth Tolchard Respondent

Jessica Brown, for the Applicant

Hilary Jenkins, for the Respondent

HEARD: October 8, 2020

RULING ON MOTION

CARROCCIA J.

[1] The applicant father, Christopher Michael Wright, filed a notice of motion (Form 14) on September 4, 2020, seeking various relief and requesting that his motion proceed on an urgent basis. The respondent mother, Robin Elizabeth Tolchard, filed her own motion on September 10, 2020. Both motions were initially returnable before me on September 16, 2020.

[2] On that date, there was not enough time scheduled for the motions to be argued and accordingly, I ordered that a special appointment date be arranged for the motions to be heard. I noted at that time, that the order of Hebner J., dated June 18, 2020, which is the subject matter of the present motions, was still in effect and shall be followed, and directed the police to enforce the order if necessary.

BACKGROUND

[3] The applicant and the respondent are the parents of one child, Callum Tolchard-Wright, born December 18, 2017. The applicant is an American citizen, and the respondent is a Canadian citizen. They met in New York City when the respondent was working there. They were in a relationship for approximately three months and never married.

[4] When the respondent discovered that she was pregnant, she was living in Florida while taking a re-certification programme for her employment. She returned to Goderich, Ontario, in June 2017, to live with her parents. The child was born in Goderich, Ontario. The applicant continued to reside in New York City and travelled to Goderich to spend time with his son following his birth.

[5] In August 2019, the applicant moved from New York City to Toronto, Ontario, to be closer to his child. I was advised by counsel that he is living in Canada on a “work visa”, meaning he is permitted to reside in Canada as long as he is employed.

[6] The child has always lived with his mother, the respondent, who is the primary caregiver. There is no formal order of custody. From the time of the child’s birth until he moved to Canada, the applicant exercised daytime access with the child when he travelled to visit him.

[7] On March 14, 2018, Garson J. made an order granting the applicant parenting time for six hours each day from March 16-19, 2018, when the child was approximately three months old, and the applicant planned to travel to Goderich, Ontario, to spend time with his son.

[8] On September 6, 2018, McArthur J. made an order on an interim interim and without prejudice basis, that the applicant was to have daytime access with his child when he travelled to Goderich to visit at certain specified times.

[9] On June 12, 2019, Hockin J. made an order dealing with financial issues including child support.

[10] On January 22, 2020, Campbell J. made an interim order, without prejudice, based on minutes of settlement filed, for a parenting schedule for the child for the period between January 25, 2020 and May 18, 2020. This schedule included overnight visits.

[11] Subsequently, a settlement conference was conducted, which led to the order issued by Hebner J., on consent, on June 18, 2020. In this order, the applicant’s parenting time was expanded to include weekday overnight access, weekend overnight access, as well as “Zoom” time during the week and on weekends at specified times when he is not with his child.

[12] The child is not yet three years old and to date, there have been four orders issued by four different judges dealing with parenting time for this child.

[13] In her order of June 18, 2020, Justice Hebner requested the involvement of the Office of the Children’s Lawyer, indicating that this is “a high conflict file that has had significant court involvement and the OCL’s assistance would be very helpful.” That, however, has not yet happened.

Applicant’s Motion dated September 4, 2020

[14] The applicant brings a motion seeking the following relief:

i) an order finding the respondent in contempt of the “Hebner J. order” and that she be required to pay a fine to the applicant in the amount of $5,000;

ii) an order changing the child’s primary residence to the applicant;

iii) a temporary order for the respondent to have supervised access only;

iv) an order for police enforcement;

v) an order for joint custody on an interim without prejudice basis;

vi) an order preventing the child’s maternal grandparents from being in the child’s presence;

vii) an order requiring both parents to attend all of the child’s medical and specialist appointments and requiring the parent who schedules the appointment to provide at least 48-hours notice of the appointment to the other parent;

viii) an order restraining the respondent from speaking disparagingly about the applicant in the child’s presence;

ix) an order restraining the respondent from removing the child from the Province of Ontario pending further written agreement or court order;

x) an order requiring the respondent to produce a copy of her intake form submitted to the Office of the Children’s Lawyer; and

xi) an order requiring the respondent to pay the costs of this motion and also his “criminal legal fees” on a full indemnity basis.

Respondent’s Motion dated September 10, 2020

[15] The respondent brought a motion seeking the following relief:

i) an order dismissing the applicant’s motion;

ii) an order that the applicant shall have supervised or community parenting time with the child; and

iii) an order that the applicant pay the respondent’s costs on a full indemnity basis.

[16] At the time of the hearing of these motions, counsel for the respondent, Ms. Jenkins, indicated to the court that the respondent was opposed to the relief sought by the applicant, but that she was no longer asking that the applicant’s parenting time be supervised.

PRELIMINARY ISSUES

[17] Two preliminary issues were raised by the court. Firstly, the applicant’s motion is on Form 14, but he seeks an order that the respondent be found in contempt of the order of Hebner J., and he seeks to change that existing order as it relates to primary residence and parenting time.

[18] Contempt of court in the family law context is dealt with by Rule 31 of the Family Law Rules, O. Reg. 114/99. That rule provides as follows:

31(2) The notice of contempt motion (Form 31) shall be served together with a supporting affidavit, by special service in accordance with subrule 6(4), unless the court orders otherwise.

[19] The wording of the rule appears to be mandatory.

[20] The notice of motion filed in this case is the general Form 14 and not Form 31. Counsel for the respondent did not take issue with this. The significant difference in the forms is that Form 31 is specifically a Notice of Contempt Motion. It requires the moving party to set out the specifics of the alleged contempt. It also warns the alleged contemnor that if he or she is found in contempt of court, that the court may make an order to imprison him or her, among other lesser penalties. It also notifies the alleged contemnor that he or she is liable to have a warrant issued for his or her arrest in the event of a failure to attend court.

[21] The purpose of this specific form is to make the responding party aware of the particulars of the allegations against him or her and to make the individual aware of the consequences of a failure to attend court or a finding of contempt.

[22] As I indicated, counsel for the respondent did not take issue with the form of the notice and I am satisfied that the applicant’s affidavit, dated September 4, 2020, sets out the particulars of the alleged breaches of the court order. The respondent is ably represented by counsel and is well aware, in my view, of the consequences of a finding of contempt.

[23] This case proceeded on the basis of affidavit evidence, with factums filed by both parties as well as oral argument. Neither party requested that the court hear oral evidence, and neither party requested an opportunity to cross-examine on those affidavits.

[24] The second preliminary issue relates to the use the court can make of an affidavit filed by the applicant. It is the affidavit of Bob Gooding, who is a Forensic Polygraph Examiner of many years’ experience who conducted a polygraph examination of the applicant. Attached to his affidavit is a report detailing his findings.

[25] The court raised this issue because it is well known, particularly in the context of criminal cases, that the results of a polygraph examination are not admissible in evidence in Canada. In Regina v. Beland, 1987 CanLII 27 (SCC), [1987] 2 SCR 398, at para. 18, McIntyre, J. speaking for the majority of the Supreme Court of Canada says:

In conclusion, it is my opinion, based upon a consideration of rules of evidence long established and applied in our courts, that the polygraph has no place in the judicial process where it is employed as a tool to determine or to test the credibility of witnesses.

[26] Accordingly, I asked counsel what use I could make of the affidavit of Mr. Gooding other than the fact that the applicant was willing to submit to such a test.

[27] I was not provided with any authority to support the use of the results of a polygraph test as evidence that an individual is more worthy of belief as a result of having undergone such testing. I find that the only use I can make of the affidavit of Mr. Gooding is that it supports the fact that the applicant was prepared to take such a test, and I will not consider the results of the test or the contents of the report attached thereto.

THE EVIDENCE

[28] The only evidence before me is in the form of affidavit evidence. As is often the case in contested motions, the affidavits reflect significant differences between the parties in relation to what occurred leading up to these motions.

[29] It seems to be common ground that the applicant was exercising access in accordance with the order of Hebner J. until early July 2020. His affidavit indicates that the respondent withheld the child from the applicant for an overnight visit on July 8 - 9, 2020, although he did have a Zoom visit with him on the following weekend.

[30] The applicant subsequently saw his child on July 15, 2020 for an overnight mid-week access visit. Between that date, and the date of the last court appearance, September 16, 2020, the applicant did not see his child. The respondent does not deny this. Regular access visits resumed following my order on September 16, 2020, although it appears that due to his work schedule the applicant has not been exercising his alternate Wednesday access or his second overnight visit on his access weekends, nor has he sought “make up” access time.

[31] The fact that the respondent withheld the child from his father (and the reasons why) forms the subject matter of the motion brought by the applicant.

[32] According to the affidavit of the respondent, dated September 10, 2020, she began to have some concerns regarding Callum’s behavior when he returned from visits with his father starting in February 2020, but did not wish to jump to conclusions about the applicant’s care of the child. According to Ms. Tolchard, her son began to make statements about his penis and say things such as that his “Papa gives [him] an “owie” on [his] penis.” It does not appear that she raised any of these issues prior to entering into the consent order issued by Hebner J. on June 18, 2020.

[33] An incident occurred on July 4, 2020. The respondent says that her son became angry as he was getting ready for bed and spit in her face. Then, he apologized and kissed her on the lips and on her neck in what she felt was an inappropriate manner. As a result, she contacted the Children’s Aid Society (“CAS”), who in turn contacted the police. On July 8, 2020 Ms. Tolchard met with a CAS worker and a Police detective about her concerns. No charges were laid at that time.

[34] The respondent indicates that on July 16, 2020, after her son returned from a visit with his father, he seemed tired and quiet. She indicates that he did not want his diaper changed. When she did change his diaper, she found blood in it and described that his rectum looked swollen and red. She called her mother, who is a retired emergency room nurse, to come over and take a look at the child.

[35] Together they took the child to the Emergency Department at Alexandra Marine and General Hospital in Goderich, Ontario, at about 1:54 p.m. where he was seen by Dr. Richard Wang. Dr. Wang examined the child and diagnosed “possible child abuse”.[^1] He describes observing mild redness around the anus and “a tinge of blood” in the diaper. The child apparently said that his “bum was sore from dad”. The doctor followed up by contacting the CAS.

[36] When they left the hospital, Ms. Tolchard and her mother returned home where her mother undressed Callum and at that time observed a large bruise on the child’s thigh. This was apparently not noted earlier when they were at the hospital. The injury was unexplained at this point and apparently Ms. Tolchard did not contact Mr. Wright seeking any explanation.

[37] As a result, Ms. Tolchard’s father contacted Detective Seltzer, the police officer they had dealt with previously and he advised them to take the child back to the Emergency Department so that the injury could be documented. Photographs were taken of the injury.[^2]

[38] Ms. Tolchard and her mother returned to the Emergency Department at Alexandra Marine General Hospital at about 6:00 pm. The child was seen by Dr. Eldon Ng. He noted that the child’s rectal area appeared normal but did note a “left thigh large hematoma 8 cm. x 3 cm.”[^3] He suggested that the child be taken to London ER as he had no special training in examining young children in situations that possibly involved abuse and indicated that he would follow up with the CAS.

[39] The child was then seen by Dr. Treasurywalla, his pediatrician, on July 20, 2020, and taken to Children’s Hospital at the London Health Sciences Centre on July 22, 2020. He was examined thoroughly by Dr. Van Hooran an Academic Pediatric Medicine and Child Protection specialist. Her report indicates that she reviewed the reports from the Emergency Room doctors, the child’s medical history, as well as receiving information from his pediatrician. She notes that she had no input from the child’s father.

[40] She noted that the evidence of redness around the anus and blood in the diaper was not determinative of sexual abuse and that an examination of the child’s genital and perianal region was normal. However, she did note that “a normal examination remains common both in cases of abused and non-abused children”.[^4] Furthermore she indicated that the bruise observed on the child’s thigh could have been accidentally inflicted, but without an explanation from the caregiver who was watching the child at the time of the injury (i.e. Mr. Wright), she could not say how the injury occurred.

[41] On July 16, 2020, Mr. Wright was contacted by Whitney Bruce, a CAS worker, and an in-person meeting with her was scheduled on July 21, 2020.

[42] On July 17, 2020, Mr. Wright received a message via Talking Parents from Ms. Tolchard indicating that Callum would not be available for his scheduled access time on July 18, 2020 due to “ongoing police and CAS investigations.”

[43] The applicant states in his affidavit of September 4, 2020 that “[the respondent] has actively engaged Callum in a campaign against me, has demonstrated a complete disregard for court orders, and will go to great lengths, including allegations of sexual assault, in order to prevent me from having time with Callum - and more importantly, to prevent Callum from having time with his father.”

[44] The respondent says in her affidavit of September 10, 2020, “I did not adhere to the parenting schedule in accordance with the Order of the Honourable Justice Hebner as a result of my genuine concerns for Callums’s safety and wellbeing.”

[45] A new police investigation had been commenced. On July 20, 2020, Mr. Wright’s counsel received a letter from Ms. Tolchard’s counsel detailing the allegations and indicating that it was her position that access should be suspended. She said that she was concerned for her child’s safety. The applicant did not consent to the suspension of his access.

[46] The applicant did not see his child from July 16, 2020 to September 16, 2020.

[47] Mr. Wright was advised through his criminal counsel on August 21, 2020, that Detective Seltzer had spoken to a Crown Attorney and concluded that no criminal charges would be laid. On August 28, 2020, according to his affidavit, Mr. Wright was advised that the CAS would be closing their file and had no concerns regarding his care of his son.

[48] On September 3, 2020, Detective Seltzer requested a DNA swab from Callum in relation to DNA found in Callum’s diaper.

[49] As it relates to the respondent’s mother, the child’s maternal grandmother, the applicant claims that Mrs. Elizabeth Tolchard has played an “active role in Robin’s attempt to marginalize my relationship with Callum.” In support of this claim, he refers to three text messages and/or emails from Mrs. Tolchard, one sent prior to the child’s birth and the others sent in January and February 2018, as well as her attendances at the hospital emergency department when the child was examined in July 2020.

[50] The applicant’s motion was filed on September 4, 2020.

ISSUES ON THIS MOTION

[51] Since the respondent effectively abandoned her motion seeking an order that the applicant’s parenting time with the child be supervised, the only issues before the court (other than costs) are the issues raised by the applicant.

THE LAW

Contempt

[52] In Hefkey v. Hefkey, 2013 ONCA 44, the court says the following regarding contempt proceedings in the context of family law matters:

The civil contempt remedy is one of last resort. It should not be sought or granted in family law cases where, as here, other adequate remedies are available to the allegedly aggrieved party. The courts have repeatedly stressed that great caution must be exercised when considering contempt motions in family law proceedings. Contempt findings in such cases should be made only sparingly and, as we have said, as a last resort “where conferences to try to resolve access problems or motions for enforcement have failed”: see K.(L). v. G.(T), [2006] W.D.F.L. 2571 (Ont. S.C.), at para. 58. See also Fisher v. Fisher, 2003 CanLII 2119 (ON SC), [2003] O.J. No. 976 (S.C.); and Martinez v. Martinez, 1984 CanLII 4792 (ON CJ), [1984] O.J. No. 721 (Ont. Prov. Ct. (Fam. Div.).

[53] Evidence relied upon to support an allegation of contempt must satisfy the court beyond a reasonable doubt of the following:

i) that there is an order to be enforced;

ii) that the terms of the order are clear;

iii) that the alleged contemnor is made aware of the particulars of the alleged contempt and thereby knows the case he or she must meet;

iv) that there has been a violation of the order; and

v) that the party violating the order has done so in a deliberate and willful fashion.

[54] Civil contempt proceedings are quasi-criminal in nature and the burden of proof is on the party alleging contempt beyond a reasonable doubt: see Prescott-Russell Services for Children and Adults v. G.(N.), 2006 CanLII 81792 (ON CA) (Prescott-Russell), at para. 26.

[55] The object of a prosecution for civil contempt is always compliance and not punishment: see J.S. v. J.W. 2005 ONCJ 329 at para. 11.

[56] The party seeking a finding of civil contempt must establish that the alleged contemnor violated the order deliberately and willfully: see Jackson v. Jackson, 2016 ONSC 3466, at para. 53.

[57] Findings of contempt of court ultimately remain a matter for the court’s discretion to be used cautiously and with great restraint: see Carey v. Laiken, 2015 SCC 17, at para. 36.

[58] A refusal to permit access out of a legitimate concern for the child rather than a desire to frustrate access does not amount to contempt: see Brown v. Walowski, 2013 ONCJ 473, at para. 38.

[59] As to whether there may be a legal justification for a failure to comply with a court order, in Jackson, at paras. 59 and 60 the court says:

In the exercise of its general discretion with respect to contempt, the court may excuse a breach of an order and refuse to invoke the contempt remedy if it is satisfied that he alleged contemnor has a “legitimate justification” or “legitimate excuse” for the breach...In Amid v. Houdi 2016 CarswellOnt 6667 (S.C.J.), the court noted that a reasonably held belief is “one that is both sincere and has some objective basis in fact” (at para. 15).

However, the court [in Prescott-Russell] noted that a party may be excused from following a court order in circumstances where there is an objectively valid justification for the breach based on both the child’s needs and interests … There are several other authorities that do not specifically refer to the defence of legitimate excuse or legal justification, but which have held that the court should be reluctant to make a finding of contempt where it is satisfied from an objective standpoint that the alleged contemnor acted in the best interests of the child and not out of self-interest (Brooks, Supra.; Stupple, Supra.; Campo, Supra.).

Contradictory Evidence in the Affidavits

[60] The issue of contradictory evidence in affidavits used on civil contempt motions was addressed by the Ontario Court of Appeal in Prescott-Russell as follows, at para. 45:

The problem is that the entire evidence submitted to the court was in the form of affidavits. No one testified before the judge. The court should not thus rule on contradictory facts; a trial should determine what those are. This case involved a contempt of court charge – a quasi-criminal process, where the moving party must establish beyond a reasonable doubt the accused’s guilt.

Variation of the Interim Order

[61] Before making changes to an Interim order the moving party must establish through evidence that is cogent and compelling that the present arrangement is not in the child’s best interests.

[62] In Miranda v. Miranda, 2013 ONSC 4704, Justice Mitrow dealt with this issue in the context of a request to vary an interim order for supervised access.

[63] After a careful consideration of the law on this issue, he says at para. 26:

A party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (Ont. S.C.J.) at para. 14. Variation of interim custody and access orders will usually only succeed if a child is at risk, or for some other compelling reasons. There is a presumption in favour of the status quo absent compelling reason to change the status quo: Gusikoski v. Gusikoski, 2001 CarswellSask 323 (Sask. Q.B.) at para. 10. In Green v. Cairns, 2004 CarswellOnt 2322 (Ont. S.C.J.) at para. 14, Wood J. referred to the well founded reluctance by courts to vary interim orders on an interim basis and stated that an interim order should only be varied on an interim basis where the evidence establishes "clearly and unequivocally" that the present arrangement is not in a child's best interests. In Greve v. Brighton, 2011 ONSC 4996, 2011 CarswellOnt 8814 (Ont. S.C.J.), Ricchetti J., after reviewing various authorities, states at para. 24 that on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the child's best interests. [Emphasis added.]

Parental Alienation

[64] In order to make a determination that there has been parental alienation, the court requires a full evidentiary record. In Michener v. Carter, 2018 ONSC 2780, Justice McDermot says the following, at para. 29:

I have to emphasize that there is insufficient evidence for me to find that the applicant is alienating the children from their father. Indeed, to determine parental alienation would require a trial of that issue and a full evidentiary record, and not the conflicting affidavits that have been placed before me….

[65] In Agietos v. Riha, 2019 ONSC 3245, Justice Hebner says the following relating to parental alienation, at paras. 22 and 23:

Father alleges that mother has attempted to alienate the children from father and does not foster a positive relationship with father. Repeated alienation conduct can constitute a material change in circumstances. An allegation of alienating conduct is a serious allegation. It goes to the very heart of a child's best interests – specifically the need for children to have healthy fulsome relationships with both of their parents.

It seems to me that such an allegation ought not to be raised unless there is clear, direct evidence of alienating behaviour. In this case, there is no direct evidence of such behaviour. Father’s affidavit evidence on this point involves statements made by the children, as opposed to any specific actions of the applicant mother. Children of divorced parents who do not like each other are often put in an impossible position. It is not unusual for such children to tell one parent what he or she wants to hear. Without any clear, direct evidence of alienating behaviour, in my view, the statements made by the children as alleged by the respondent father do not, in and of themselves, constitute a change in circumstances sufficient to support a motion to change.

ANALYSIS

Is the Respondent in contempt of the order of Hebner J.?

[66] The applicant must prove each of the elements for a finding of contempt beyond a reasonable doubt. I will review the evidence as it relates to each of those elements.

Is there an order to be enforced?

[67] There is no dispute between the parties that the order of Hebner J. issued on June 18^th, 2020 was in effect at the relevant time.

Were the terms of the order clear?

[68] Again, there was no argument made, nor is there any dispute that the terms of the order were clear and not subject to interpretation.

Is the alleged contemnor aware of the particulars of the alleged contempt and does she know the case she must meet?

[69] The respondent is well aware that the alleged contempt stems from her withholding the child from parenting time with his father for the period from July 16, 2020 until September 16, 2020.

Has there been a violation of the order?

[70] Again, there was no dispute that the conduct of the respondent amounts to a violation of the order for parenting time issued by Hebner J.

Has the respondent violated the order in a deliberate and willful fashion?

[71] It is alleged by the applicant that the respondent withheld their son from him in a concerted effort to marginalize his role in the child’s life. The respondent acknowledges that she withheld the child from access visits with his father, but maintains that it was done out of concern for her child’s safety and well-being.

[72] The affidavit evidence on this issue is conflicting. The respondent did not raise the alarm with anyone when she says that her son began describing that his father gave him an “owie” on his penis, among other things, because she did not want to jump to conclusions. The applicant maintains that he had no knowledge of these alleged utterances by his son until he was told about them by his criminal counsel after the respondent contacted the police. He obviously denies any wrong-doing.

[73] What is not in conflict, on the evidence before me, is that the respondent acted quickly to seek out medical treatment when she saw blood in the child’s diaper and redness around his anus. The medical reports confirm what she says she observed.

[74] One of the doctors who treated Callum in the hospital emergency department notified the CAS and diagnosed “possible child abuse.” She took the child to London to be seen by a specialist in this field and while the results of the examination were inconclusive, I find that the respondent’s behavior in seeking out an expert medical opinion was not unreasonable.

[75] This is not a case of a party jumping to conclusions on the basis of speculation. There was some objective evidence to support the position she took; that is not to say, by any means, that I have concluded that the applicant mistreated his son in any way. However, her belief that her child may have been abused, was reasonably held in my view.

[76] Once the police and the CAS became involved, the respondent withheld her son awaiting the conclusion of their investigations.

[77] What I must determine is whether the applicant has established beyond a reasonable doubt that the respondent breached the order in a “willful and deliberate” fashion without justification or excuse.

[78] There is no doubt that the applicant has met his onus in relation to the first four elements of contempt of court that he is required to prove as outlined above. I find, however, that he has not proven the conduct to be willful and deliberate and without justification beyond a reasonable doubt.

[79] I am mindful of the words of the Court of Appeal in Hefky that civil contempt is a remedy of last resort and should not be sought or granted in family law cases where other remedies are available. I find that other options were available to the applicant to seek compliance with the order.

[80] Furthermore, as in Brown v. Walowski, at para. 41:

There are also situations where the reasons for the breaches provide a legitimate excuse. In order to make out a defence, however, the party asserting it needs to have a reasonably held belief that there was a good reason to disobey the order. Thus, there is both a subjective and objective component.

[81] As indicated above, I find that the conduct of the respondent was based on her reasonably held beliefs, and I do not find her in contempt of the order of Hebner J.

[82] On the evidence before me, once the police and CAS investigation was concluded on August 28, 2020, the applicant filed this emergency motion within a week, without even trying to communicate with the respondent about the resumption of access visits. There were other means available to him to seek compliance with the order.

[83] On the first return date, I directed that the access order of Hebner J. must be followed and it has been without incident.

Variation of Current Access/Custody arrangements

[84] The child has always resided primarily with the respondent mother, but there is no court order addressing primary residence or custody. The applicant asks that an order be made that the child reside primarily with him and that the respondent have supervised access or in the alternative that the court make an order for joint custody.

[85] The applicant has a parenting time schedule as set out in the temporary order of Hebner J., if the court were to make an order changing the child’s primary residence, or granting the applicant joint custody, that would effectively be a variation of the order currently in place.

[86] In order to do so, the applicant must satisfy the court, on the basis of cogent and compelling evidence, that the present arrangement is not in the child’s best interests.

[87] Although a material change in circumstances is not necessary to vary a temporary order, in my view there must be a compelling reason to change a temporary order for parenting arrangements.

[88] On this issue, the applicant points to the same circumstances as outlined above to support his claim, namely parental alienation, that the respondent has demonstrated a complete disregard for court orders, and that the allegations of sexual assault were designed to prevent Callum from having time with his father.[^5]

[89] I do not see sufficiently compelling reasons here and I decline to make an order changing the current arrangements.

Parental Alienation

[90] Parental alienation is a serious allegation that requires, in the words of Justice Hebner, in Agietos v. Riha, “clear direct evidence of alienating behavior.” Repeated conduct, designed to alienate a child from a parent, can constitute a material change in circumstance.

[91] I find that on the conflicting affidavit evidence before me, there is no evidence of parental alienation. In fact, the evidence seems to reflect the opposite. According to the affidavit of the applicant, dated October 6, 2020, he indicates that upon resumption of parenting time with his child “during our first in person visit, which took place from September 19 to September 20, Callum ran to me and jumped into my arms with a giant smile on his face”. He goes on to describe a weekend filled with “hugs, snuggles and random, unsolicited I love you’s from Callum.” [^6]

[92] This seems to suggest that the unfortunate separation of father and son had little effect on Callum’s desire to spend time with his father.

[93] The court did not hear oral evidence on the issue of a variation of the current custody of the child. Again, the court is left with the conflicting affidavits of the parties on this very important issue. Custody is an issue that should be determined at trial once a court has had the benefit of hearing all of the relevant evidence and making a decision based on findings of fact.

[94] I note as well that the father is seeking to move the child to Toronto, Ontario, where he currently resides on a work visa, although this was not addressed in submissions. If the court were to make any change to the primary residence of the child, it would require that the child be moved from the city where he has always resided. There was no evidence offered in relation to the immigration status of the applicant or, more importantly, what his immigration status would be if he were to lose his employment in Canada.

An Order – preventing the maternal grandmother from seeing the child

[95] It is obvious from the affidavits filed that there is no love lost between the applicant, Mr. Wright, and the maternal grandmother, Mrs. Elizabeth Tolchard. Having said that, there is no evidence before the court that Mrs. Tolchard has engaged in any conduct that would suggest that she is trying to interfere with the applicant’s relationship with his son that would justify an order preventing the child from seeing his grandmother.

[96] It appears that she is a stable and loving influence in Callum’s life, and I decline to make any order at this time preventing the child from being in the presence of his grandmother.

Other Orders – sought by the applicant

[97] The applicant seeks an order that both parents be required to attend all of Callum’s medical and specialist appointments and that the parent scheduling the appointment must give the other parent at least 48 hours notice of the upcoming appointment.

[98] I do not believe there is any basis for making such an order. I will not require both parents to attend all appointments for the child.

[99] In fact, in her affidavit of October 5, 2020 the respondent indicates that she did advise the applicant of Callum’s “play therapy” appointments scheduled for September 23 and 29, 2020, and he indicated that he was not able to attend.

[100] I am prepared to order that the parent scheduling an appointment for Callum must notify the other parent of any and all medical/specialist/therapy appointments at least 48 hours in advance of the scheduled appointment so that the other parent can attend if he or she chooses to.

[101] Furthermore, he seeks an order restraining the respondent from speaking disparagingly about the applicant in Callum’s presence. No evidence was offered to suggest that she does.

[102] I note as well that the order of McArthur J., dated September 6, 2018, says the following at paragraph 5(d):

Neither party shall comment negatively about the other or about the child at any time or in any related proceedings.

[103] As a result, I do not find it necessary to make such an order.

ORDERS

[104] During submissions it was agreed that the court would make the following orders on consent:

1. The respondent provide a copy of her OCL intake form to the applicant.

2. Neither party will be permitted to remove the child, Callum Tolchard-Wright from the Province of Ontario without the consent of the other parent or without further court order, subject to paragraph 2 of the order of Campbell J. dated January 22, 2020.

[105] As to the request that both parties will have access to CAS records, I decline to make the order since the parties have not complied with r. 19(11) of the Family Law Rules, which requires the Children’s Aid Society to be served with notice of the motion.

COSTS

[106] I have not been provided with any authority to support the position of the applicant that I ought to make an order for costs in relation to his “criminal legal fees.” I do not believe that I have jurisdiction to do so.

[107] As to the request for costs of this motion, in the event that the parties are unable to agree on costs, they may make written submissions, to include a cost outline and any applicable offers to settle according to the following timelines:

1. The respondent shall provide her submissions within 20 days.

2. The applicant shall provide her submissions within 20 days thereafter.

3. The respondent may provide any reply submissions within 10 days thereafter.

[108] If either party fails to deliver their submissions in accordance with this schedule, they shall be deemed t have waived their rights with respect to the issue of costs, and the court may proceed to make its determination in the absence of their input or give such directions as the court considers necessary or advisable.

“original signed and released by Carroccia J.”

Maria V. Carroccia

Justice

Released: November 23, 2020

COURT FILE NO.: FS-18-5-00

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Christopher Michael Wright Applicant

– and –

Robin Elizabeth Tolchard Respondent

Ruling on Motion

Carroccia J.

Released: November 23, 2020

[^1]: Emergency Room Records July 16,2020, Affidavit of Robin Tolchard, September 10, 2020, Tab I [^2]: Affidavit of Robin Tolchard, September 10, 2020, Tab J [^3]: Affidavit of Robin Tolchard, September 10, 2020, Tab K [^4]: Report of Dr. Van Hooran, Affidavit of Robin Tolchard, September 10, 2020 Tab M [^5]: Affidavit of the applicant dated September 4, 2020, at para. 59 [^6]: Affidavit of the applicant, dated October 6, 2020, at para. 12