B.R.M. v. M.A.E.M., 20 ONSC 2791

COURT FILE NO.: FC-20-375

DATE: 20210414

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

B.R.M.

Applicant Father

– and –

M.A.E.M.

Respondent Mother

Patricia File, for the Applicant Father

Regina Senjule, for the Respondent Mother

HEARD: April 1 and 6, 2021

Justice Alex Finlayson

PART I: OVERVIEW

[1] The parties are the parents of three boys, L. age 11, K., age 9 and A., age 6.

[2] This is a high conflict case that concerns parenting issues about the children. This case has been before the Court for almost 5 years. Different children’s aid societies and police have been involved with this family, concurrently. There have been criminal charges laid against the mother’s new partner. These were withdrawn in favour of a peace bond. More allegations have been made since then.

[3] Multiple judges have made Endorsements and Orders while this case has been before the Court. There have already been several conferences, and three motions launched by the father, two of which he brought on an ex parte basis. It is the mother who brings this fourth motion. The father responded to it with a cross-motion.

[4] The parties bring these motions even though they have already entered into two Final Consent Orders. The parties’ first Final Consent Order is dated June 16, 2017, and the second one is dated December 20, 2018. Pursuant to paragraph 45 of the second Final Consent Order, the next step was supposed to be mediation within 30 days (if the parties agreed to it) or otherwise a Trial Management Conference and presumably a trial after that. The outstanding issues are said to be “final custody” (now decision-making responsibility), “primary residence”, “increased access to a third weekend per month” (now parenting time), and “any issues still outstanding between them”.

[5] The parents did not go to mediation as far as I am aware. It is questionable that that would have been an appropriate forum for them. But the TMC did not proceed either, nor has a trial happened. Now on these interim motions, both parents would have the Court make a number of orders, many of which are different from terms they previously settled.

[6] The mother alleges that the father has overheld some or all of the children at the end of visits, multiple times. The father says the mother has cancelled his time before visits. Already in 2021, the children have gone for at least two, one-month periods without seeing the other parent. As of the date of this decision, it has been one month since K. last saw his mother.

[7] The mother brings this motion, initially returnable on April 1, 2021, to address the most recent instances of the father’s overholding. Beginning after the Christmas holiday in 2020, and until January 31, 2021, the father did not return the children to the mother’s care. Once they were back in the mother’s care, the children did not then see the father at all during the month of February. Then, when the children eventually went to see their father for the weekend of March 12-14, 2021, the father did not return them at the end of his weekend. On March 28, 2021, after the mother served her Notice of Motion dated March 15, 2021, but before it was heard, the father returned L. and A. to the mother, but not K.

[8] On March 29, 2021, the father short-served a Notice of Cross-Motion. Neither motion proceeded on April 1, 2021, as there were complaints surrounding this short service and other problems with the material, from both sides. It was obvious that both motions would take considerable time to hear, much more than the one hour that is allotted for regular motions[^1]. Nevertheless, I granted a short adjournment to April 6, 2021, to allow the parties to cure the problems with the material, and I told the parties I would hear both motions.

A. The Mother’s Notice of Motion

[9] Given that the father has since returned L. and A., argument focused somewhat, but not exclusively, on K. Principally, the mother seeks an order for police enforcement to secure K’s return, and then ongoing police enforcement of the parenting provisions in their December 20, 2018 Final Consent Order thereafter. However, the mother has also included a number of other requests for relief in her Notice of Motion.

[10] The mother claims an order for temporary sole decision-making for the children. The mother asks that the father’s parenting time with the boys now be supervised through the Children’s Aid Society, until the father completes an anger management program and a parenting course. The mother also asks for an order that the father undergo a mental health assessment, prior to the reinstatement of any unsupervised parenting time. And the mother seeks an order that the father’s telephone contact with the children be limited to once per week.

[11] The father lives in Orillia and the mother lives in Whitby. According to their Final Consent Order of December 20, 2018, they share the driving for the father’s visits, with each parent driving the children one round trip between households, either at the beginning, or at the end of the father’s visits. Nevertheless, the mother now asks for an order requiring the father to do all the driving before and after his parenting time. This would be after unsupervised parenting time is reinstated.

[12] The mother also asks for a child support Order.

B. The Father’s Notice of Cross-Motion

[13] The father’s Notice of Cross-Motion contains some 16 paragraphs, within which there are multiple requests for relief. The father asks for an order that a private lawyer for the children be appointed. Specifically, he wants the lawyer to speak to the children, and then to provide a letter to the Court about the children’s wishes. He says the Court should order him to go and ask for funding for this, from two churches in his community. During oral argument, counsel for the father suggested that the Court should try appointing the regular Office of the Children’s Lawyer (the “OCL”) first.

[14] Pending the involvement of the OCL, the father asks for an order that K. be permitted to remain with him. He proposes that there would then be another return to Court at which the OCL would report to the Court. Presumably, there would be more argument if the parties do not agree. Meanwhile, the father asks the Court to grant him the authority to enroll K. in school in his area, even though he has only asked, at least for now, to retain K. pending the involvement of the OCL.

[15] Elsewhere in his material, the father suggests that both L. and A. should reside with him too, but he did not really proceed with those requests. In his Notice of Motion, he proposes that “the children” go between households on a week-on, week-off basis, and that they continue to do online schooling, “as has been the status quo”, until the OCL reports to the Court. During submissions, the father’s counsel conceded that the latter would not be workable either, if the children are to return to in person school at some point, given the distance between the households.

[16] In response to a question from the Court about what parenting time K. should have with his mother, if the Court orders that K. remain with the father for now, the father’s counsel submitted that K. should visit with his mother on alternate weekends. This was inconsistent with the father’s principal position that K. is refusing to return to his mother’s home, at all.

[17] The father also seeks the authority to enroll all three children in counselling. He wants that counselling to occur with a youth pastor at a Salvation Army Church, and with a minister at a United Church.

[18] The father wants the Court to add a number of additional terms or details to the term in the Final Consent Order dated December 20, 2018 about telephone access. The father asks the Court to direct the parents not to discuss “adult matters” with the children, nor to pressure them to “say or deny saying anything to anyone who may speak to them” nor to “speak negatively to the children about the father or about the children themselves”. The father also asks for an Order that the mother provide him various details about A.’s health.

[19] The father asks that the Court request the children’s aid societies in Durham and Simcoe to provide a report to the Court about this family. He likewise asks the Court to request the OPP to provide a report on the status of the mother’s partner’s criminal charges and about “any terms or conditions that may be still in place”.

[20] Finally, the father asks for an order that the parties continue to share transportation for the exchanges. This appears to be in response to the mother’s request to alter these transportation arrangements.

C. Issues

[21] Despite the numerous prayers for relief that are collectively in both parties’ Notices of Motion, there are really four core issues for the Court to decide. They are:

(a) whether the Court should order a different parenting schedule than that set out in the Final Consent Order of December 20, 2018 on this motion, not only for K., but for all three boys. This includes a consideration of not only the father’s request for various schedules, but also whether the Court should order that the father’s parenting time be supervised, as asked by the mother;

(b) whether the father should be empowered to change K.’s school, and to set up counselling for all three children. This requires the Court to determine whether it is in the children’s best interests for the father to have decision-making authority over these issues on an interim basis pending trial. As I will explain, it would also entail the variation of an interim order on an interim basis;

(c) whether the Court should order police enforcement, both to compel K.’s return to the mother, and in the longer term; and

(d) whether the OCL should be appointed, either in the ordinary course, or by way of private counsel, funded via charitable donations that the father will attempt to secure, to provide some form of assistance to this family and to the Court.

[22] To these four issues, I add a fifth, namely what procedural and case management directions are required for this family to get their case ready for trial. They should not be continuing with this litigation indefinitely and be bringing motions annually as they seem to have been doing.

D. Summary of this Decision

[23] To decide the four core issues, it is necessary first to set out the applicable legal frameworks that apply on the parties’ motions. Much of what the parties are asking for would require the Court to vary existing orders. So before the Court can apply the applicable frameworks, it is also necessary to summarize the prior proceedings, and in particular, to summarize what Orders are actually in place. I will also consider whether there is some new status quo that developed after December 20, 2018 as the father claims, and if so, whether that should impact the analysis.

[24] On December 20, 2018, the penultimate appearance in this case prior to these motions, the parties agreed they were going to a Trial Management Conference as their next step, in the absence of a mediated settlement. I appreciate that Covid-19 intervened in the first part of 2020. But the parents took no steps to move forward to that TMC in 2019 at all. They are now proceeding by way of motion, once more.

[25] Counsel told the Court that they have made efforts to settle. I do not intend to be critical of counsel in any way for their efforts to help their clients. But the way that this litigation has been conducted by the parties, in the Court, is contrary to spirit of the Family Law Rules. For example, even now in the context of these current motions, just because the mother brought an enforcement motion did not mean that both parents had to then be layered on numerous other requests. Nevertheless, I will still apply the applicable legal principles to the evidence before the Court, to consider all of their multiple requests.

[26] For the reasons that follow, K. is to be returned to the mother immediately. There shall be no other changes to the parties’ Final Consent Order of December 20, 2018 pending trial. The request for police enforcement is dismissed without prejudice to it being revived if the Court’s Orders are not followed going forward. The Children’s Lawyer will be appointed.

[27] Pursuant to Rule 2 of the Family Law Rules and this Court’s case management powers, I am directing the parties about the next steps in this case. They will be required to follow the steps that I am setting out, to bring this case to its conclusion. If they wish to deviate from the path that I am setting out for them, they will need to get judicial approval. There are to be no more adjournments, where there is a pathway forward, but that does not then get followed.

PART II: APPLICABLE LEGAL PRINCIPLES

A. Which Legislation Applies to this Motion?

[28] The parties are married. They are not yet divorced. Neither counsel made a submission about whether the Court should apply the Children’s Law Reform Act, or the Divorce Act. Counsel were unaware whether the Court’s prior Orders, portions of which would have to be varied for some of the parents’ claims to succeed, had been made under the Children’s Law Reform Act or under the Divorce Act. The Children’s Law Reform Act and the Divorce Act contain different statutory language about variations, and in particular about interim variations of interim orders, although the applicable legal principles in the case law decided under either piece of legislation are not necessarily different.

[29] In the absence of any submissions on this point, the Court has the parents’ pleadings. Each parent has only made claims only under the Children’s Law Reform Act. As such, I will apply the relevant provisions of provincial legislation.

B. Applicable Legal Principles Concerning the Parents’ Claims for Decision-Making and/or Parenting Time

(1) Applicable Statutory Provisions

[30] The amendments to the Children’s Law Reform Act, in force since March 1, 2021, now refer to parenting orders, decision-making responsibility and parenting time, instead of custody and access. Section 18(1) states that a “parenting order” means an order made under section 28 respecting decision-making responsibility or parenting time with respect to a child. Among many other changes, this new language replaces the old “custody” and “access” nomenclature. Applications for such orders, instead of custody and access orders, are still made under section 21.

[31] Section 28 of the Children’s Law Reform Act sets out that the Court may make either orders for decision-making responsibility or parenting time, as well as for various incidents of decision-making responsibility and parenting time. Section 28(c) continues to specify a non-exhaustive list of the kinds of orders for incidents that a court may make.

[32] Pursuant to section 24(1) of the Children’s Law Reform Act, the Court is to take into account only the best interests of the children. Pursuant to section 24(2), the Court is to consider all factors related to the circumstances of the child, and in so doing, give primary consideration to the children’s physical, emotional and psychological safety, security and well-being. New section 24(3), (which replaces predecessor section 24(2)), contains a non-exhaustive list of factors related to a child’s circumstances. These factors guide the analysis under new section 24(2).

[33] Custody and access orders have already been made in this case, prior to these recent amendments. Those orders are not just disregarded by the Court. Sections 76(1) to (4) of the Children’s Law Reform Act deem that those prior orders for custody and access are now orders for decision-making and parenting time, subject to an Order otherwise.

[34] The Orders already in place in this case contain terms, sometimes temporary and sometimes final, about decision-making, parenting time and incidents. Yet in many instances, the parties made submissions at these motions, without any serious regard to the terms of these already existing Orders.

[35] Some of the claims made by both parties on their motions are for completely different terms than those to which they already agreed on a final basis. Some of the claims advanced by the father in his cross-motion would have the Court add additional wording to existing final terms in the parties’ Final Consent Order of December 20, 2018. And the father’s claims to change K.’s school and to empower him to enroll the children in counselling, conflict with a prior temporary order, still in force, that grants the mother sole decision-making.

[36] There is an added layer of confusion to this, because the Final Consent Order of December 20, 2018 is poorly drafted. It suggests that some of the very same parenting terms are both final and temporary.

[37] Neither party addressed the confusing language in the Final Consent Order. Neither party explained how or why the Court, on an interim motion within the existing Application in which a number of matters settled, and in the absence of any Motion to Change, should order a new term that would alter or replace a final term in a prior Order. Neither party really addressed the test to vary an interim order on an interim basis, either.

[38] Where a party seeks to alter, or to replace any final term of an Order in its entirety, the requirements to bring a Motion to Change (or at least some form of an amended pleading), and to satisfy the material change threshold do not disappear, just because the December 20, 2018 Order was a consent Order, and just because one parent or the other now wants different wording. See McCall v. Res, 2013 ONCJ 254 ¶ 1-23 and see specifically ¶ 23[^2].

[39] There is nothing new in the amendments to the legislation that would allow otherwise. In fact, section 18(4) of the new Children’s Law Reform Act states that the amendments, which came into effect on March 1, 2021, do not, in themselves, constitute a material change in circumstances. Section 29 of the new legislation continues to prohibit a court from making a new order that varies a parenting order, unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is subject to the order. And section 29 applies not only to final Orders made under the Children’s Law Reform Act, but also to temporary ones.

[40] Furthermore, to the extent that others of the parents’ claims would require the Court to change, prior to trial, a pre-existing temporary or final term in an Order, there are different legal questions that apply to those requests, too. That is not to say that the Court cannot intervene, in a child’s best interests in situation of urgency, even if the motion was procedurally improper. But as I will explain, I do not find it appropriate to do so in this case regarding almost all of the parties’ claims in their motions.

(2) Applicable Legal Principles Regarding the Variation of an Order

[41] I begin with the material change test, required by section 29 of the Children’s Law Reform Act. Various, well-established principles govern a material change analysis. See Gordon v. Goertz, 1996 CanLII 191 (SCC), 1996 CarswellSask 199 (S.C.C.); see L.M.P. v. L.S., 2001 SCC 64; and see also Van de Perre v. Edwards, 2001 SCC 60. In this case, I am mindful that the principles should be adapted somewhat because the previous Orders, now in issue, were consent Orders.

[42] Regarding the material change threshold:

(a) the Court must be satisfied that there has been a change in circumstances since the making of the prior order;

(b) the change in circumstances must be material, meaning that if known at the time, would likely have resulted in different terms;

(c) the focus is on the prior order and the circumstances in which it was made;

(d) the change should represent a distinct departure from what the court (or the parties) could reasonably have anticipated in making the previous order; and

(e) the Court may examine the consent Order to see if it reveals whether the parties contemplated that a particular change might give rise to a later variation or not;

(f) the subsequent conduct of the parties may also provide an indication as to whether they considered a particular change to be material.

And if the Court finds that a material change has occurred:

(g) the Court should consider the matter afresh, without defaulting to the existing arrangement;

(h) the Court must consider all factors relevant to the children’s circumstances, in light of the new circumstances;

(i) the Court must be guided by the statutory criteria set out in section 24 the Children’s Law Reform Act;

(j) both parties bear the evidentiary burden of demonstrating where the best interests of the children lie; and

(k) the Court should limit itself to whatever variation is justified by the material change in circumstance.

(3) Applicable Legal Principles Concerning the Interim Variation of an Order or a Status Quo Pending Trial

[43] There are other considerations about which I remain mindful. The case law states that there should be “compelling circumstances” before the Court should vary an order, whether an interim or a final order, or even an established status quo, on an interim basis prior to trial. One case described this “compelling circumstances” standard as requiring an “untenable or intolerable situation”, and one where the child’s “physical and/or emotional well-being” is in jeopardy. Without needing to address further whether other, perhaps lesser circumstances might still be considered “compelling”, I accept the principle that courts should generally exercise caution before changing an order prior to trial. This is due, in part, to the conflicting nature of the affidavit evidence, is not tested at the motion stage. See for example Grant v. Turgeon, 2000 CanLII 22565; see K.A.V. v. P.P., 2007 ONCJ 217; and see also M.W. v. E.B., 2005 CanLII 18315 (ON SC).

[44] The weight of the authority suggests that absent “compelling circumstances”, the preferable approach is to proceed to trial.

PART III: HISTORY OF THE PARENTING ARRANGEMENTS

[45] To correctly apply these principles, there must be some clarity about what the Court is being asked to change with a new temporary order. Neither party adequately placed in their motion material much detail about the prior proceedings, nor the orders that the Court has made, either. The Court was left to review the prior interim and final Orders in the record, and some of the previous Notices of Motion that led to the Orders. I advised counsel of this at the outset of the motion, and gave them an opportunity to address this history, in any matter which they saw fit. I also asked counsel multiple questions to ensure that I understood correctly the various parenting schedules that have been in place from time to time over the years, whether those arose by Court Order, or by agreement, or sometimes by the unilateral conduct of one party or the other.

A. The Prior Proceedings

[46] This proceeding began on August 12, 2016. In addition to filing an Application, the father launched an ex parte motion on the same day. In his ex parte motion, the father sought the return of the parties’ three children. According to Wildman J.’s Endorsement dated August 12, 2016, the father alleged that mother had taken the children from their home in Simcoe County to Sundridge, Ontario[^3] for a week in the summer, and then did not return. Wildman J. declined to grant the father’s motion on an ex parte basis. She adjourned the motion for service.

[47] Wood J. heard the motion on its merits, on August 18, 2016. Additional material had been filed by that time. Wood J. also allowed each party to supplement his and her written affidavit material with brief viva voce testimony.

[48] Wood J. found the mother had been the children’s primary parent. He made a number of findings of fact, including adverse credibility findings against the father,[^4] and adverse findings about his ability to parent. He granted the mother temporary sole custody, he permitted the mother to relocate to Sundridge on an interim basis, and he ordered the father would have supervised access only. He also ordered the father to pay child support of $535.00 per month.

[49] At the conclusion of the motion, Wood J. set the matter for December 16, 2016, for a Settlement Conference. The Settlement Conference did not proceed, as the mother could not attend Court, due to the inclement weather. By that date, the father’s ODSP had decreased, since the other members of the household no longer resided with him. The new amount of his ODSP had dropped to an amount below that which the Guidelines would require him to pay any child support. Wood J. terminated his earlier temporary child support order, effective January 1, 2017.

[50] The Settlement Conference proceeded on January 27, 2017. Wood J.’s Endorsement of that date reveals that no settlement was reached. I note that in is this Endorsement, there is mention of the father’s agreement to undergo a psychological assessment “if funding could be found”. The father’s former counsel was to inquire with Legal Aid Ontario about such funding[^5]. Wood J. otherwise adjourned the matter to March 10, 2017, for a Trial Scheduling Conference.

[51] The father launched another motion after that Settlement Conference. According to his handwritten Notice of Motion, he was seeking to expand his access, although he also mentioned his desire for an order for joint custody, that there be some drug testing, and he made a statement that the children should reside with their grandparents. This motion was returnable on March 9, 2017. That was the day before the March 10, 2017 Trial Scheduling Conference.

[52] The father’s motion did not proceed. The Endorsement of March 9, 2017 notes the fact that there was a Trial Management Conference the next day, and it also states that the father had started his assessment. On consent, the Court put the motion over to the next day, March 10, 2017.

[53] Then, on March 10, 2017, neither the motion, nor the Trial Scheduling Conference (which the parties were not ready for either) proceeded. Wood J. adjourned the Trial Scheduling Conference to April 7, 2017.

[54] On April 7, 2017, the Trial Scheduling Conference did not proceed, once again.

[55] On June 16, 2017, the parties entered into partial Final Minutes of Settlement, which were incorporated into the first, Final Consent Order. The parties used a court template form, with check boxes and blanks that can be filled in, to create their Minutes. They also added to it, with several pages of handwritten clauses.

[56] The parties agreed that the children would reside primarily with the mother. The parties also agreed to consult with each other, prior to making major decisions regarding the children.

[57] Certain decisions are delineated in the Minutes, removing the need for consultation or even a decision to be made at all. For example, the Minutes state where A. would be baptized, and that the children would attend public school. The pages of handwritten clauses cover matters about the children’s church attendance, the exchange of documentation, about their activities, circumcision, and terms prohibiting tattoos and body piercings on the children.

[58] Yet, the Minutes neither mention the words “custody” nor “joint custody”, at least not fully. There is a box checked off that indicates the mother would have “final custody”, but only the mother initialed it; the father did not. In the end, the Minutes remained silent on the question of who would make a final decision about the children, in the event of a dispute over issues not specifically addressed. To the extent that was unclear, some (but not much) clarity emerged later on, in their subsequent Final Consent Order of December 20, 2018.

[59] Regarding the parenting schedule, the father was to have access to the children on alternating weekends, from Friday at 4 PM to Sunday at 5 PM. Plus, there are certain holidays carved out in the document. The parents agreed that exchanges would take place at the Burks Falls OPP Station (Burks Falls is located near Sundridge, Ontario). The Minutes contain terms about telephone access and email communication with the children. I note that both parties initialed the “final box” regarding the father’s access and these other clauses.

[60] No order was ever taken out incorporating the language in these Minutes. However, by the Endorsement of June 16, 2017 the Court did grant an order in accordance with the Minutes. The Endorsement states “balance of issues listed in Minutes adjourned to July 4, 2017 to complete settlement conference”.

[61] Next, on July 4, 2017, the Court requested the involvement of the OCL. I do not know fully what transpired with this appointment, but the OCL is not involved in this case, yet.

[62] There were then two adjournments after the July 4, 2017 appearance.

[63] On May 8, 2018, almost one year later, the Court endorsed “Settlement likely. Adj sine die for M of S to be filed by 14(b)”. But no settlement was forthcoming for a further 7 months.

[64] The parties entered into another Final Consent on December 20, 2018. The corresponding Final Order of December 20, 2018 has both the temporary and the final boxes checked off in its top right corner. At the beginning in the body of the document, there is wording that indicates the majority of its terms are ordered “on a final basis”. Paragraphs 1 to 44, which are essentially the entire document, then follow in this “final” section. Then, paragraph 45 lists three issues as outstanding for trial. Only paragraph 45 is characterized as an interim Order. And two of the items that were listed as interim issues conflict with terms, which the parties settled on a final basis.

[65] In addition, this second Final Consent Order of December 20, 2018 appears to incorporate many of the terms that the parents previously agreed to on a final basis, on June 16, 2017. It is not fully clear to me why the parties felt they needed to enter into this further consent to achieve that. This new document is sometimes repetitive and overlapping with the 2017 Consent. That said, I appreciate that the parents may have wanted to make modifications to the terms to which they previously agreed in 2017, or perhaps they wanted all terms in one document. But there is no clause that specifies whether this new document is intended to replace the 2017 Final Consent Order in full, or whether it is only intended to vary parts of it.

[66] Regarding the parenting schedule in this new document, the parties continued to agree that the father would have access on alternating weekends. There is also a holiday schedule. These are in the final section of the Order.

[67] There are clauses about access exchanges, different from that to which the parents agreed in the 2017 Final Order. Nevertheless, these new clauses are also said to be a Final Orders. There are terms about the sharing of information and telephone access, all final.

[68] According to the new driving clauses in the Order, the father is to pick up the children at the mother’s residence in Whitby, and the mother was to return the children to the OPP station near his home in Orillia, as opposed to the exchange happening for both the pick-ups and drop-offs at the police station in Burks Falls. Elsewhere in the Order, also still in the final section, the mother is to use her best efforts to access a vehicle, or a person who can drive the children to the access point.

[69] Once again, many decisions concerning the children are delineated, such that the person having ultimate decision making for these children would have her authority restricted in those areas. These too are all specified to be final orders. Just like in the 2017 document, there is an absence of any term listing who would make final decisions, in the event of a dispute.

[70] At paragraphs 42-44 of this Final Consent Order, the parties agreed, on a final basis, that the father would not pay child support, since he is “in receipt of OSDP for a single person”. There are other terms about sharing the cost of certain clothing and requiring the father to provide disclosure about his income.

[71] Paragraph 45 states that “the issues of final custody and primary residence and any increased access to a third weekend per month, plus any other issues still outstanding between them” was to be adjourned. While the parties mentioned going to mediation within 30 days if they could agree to do so, they were otherwise to proceed to a TMC. It is unclear how a continued claim for “primary residence”, “increased access” or “even increased access” to three weekends per month, can co-exist with the other final terms of their order for a schedule whereby the children reside with the mother primarily, and the father has them on alternating weekends.

[72] There were no court appearances in 2019. Then, on February 18, 2020, the father launched his third motion, again on an ex parte basis, this time alleging that the children would be at risk if they were to be returned to the mother. I am told that he brought this motion around the time that the mother’s new partner was charged with assaulting the children.

[73] On February 18, 2020, the Court made a short-term order that the children would remain with the father. But it appears from the Endorsement that later in the day, at 4:30 pm, the Court somehow learned that the children were actually with their mother. The Court set aside its earlier order and declined jurisdiction over the matter[^6].

[74] Three days later, on the father’s 14B Motion, the Court transferred the case to this Court in Oshawa. No further steps were taken in this Court after that, until now. Throughout 2020 and into 2021, the parents changed the parenting schedule on their own, out of Court, although perhaps sometimes with the involvement of counsel.

B. The Changes to the Parenting Schedule Since December 20, 2018

[75] It was initially not clear to me the extent to which the schedule in the Final Consent Order of December 20, 2018 was followed, or not, by the parties after it was granted. Neither party’s affidavits contain complete information about what the parenting schedule has been since December 20, 2018.

[76] Between my review of the parties’ affidavits, and filling in the gaps via numerous questions of counsel at the outset of submissions, I understand the following occurred:

(a) The parents more or less followed the alternating weekend schedule in the Order for over a year, until the first quarter of 2020, although there are complaints from the mother about the father overholding the children in the summer of 2019;

(b) It is more or less agreed that the week-on, week-off schedule began either in March or early April, 2020. That was only possible because of the school closures following the outbreak of the Covid-19 pandemic;

(c) The father says that K. stayed with him for the entire summer of 2020. Mother says that K. only stayed with his father only for 6 weeks. She also says he kept K. unilaterally. Father disagrees it was unilateral;

(d) Both parents (through their counsel) agree that L. and A. didn’t always go between households during the summer of 2020. But both generally agree that the week about schedule for them was mostly followed;

(e) According to the mother’s counsel, in September of 2020, the mother wanted the alternate weekends to resume, so the children could resume in person school. Given the distance between the households, a week about schedule would not work in those circumstances. But the father would not agree to return to the schedule in the Final Consent Order of December 20, 2018, according to the mother’s counsel. Father’s counsel said that the mother was not actually going to put the children back in school, in person, in the fall of 2020, and so that is why they kept following this new, week about schedule;

(f) According to the Final Consent Order of December 20, 2018, the children were to be with the mother for the first week of the Christmas break in 2020, and then with the father for the second week, until the return to school in January, 2021. It is not disputed that the children went to their father’s house on about December 27, 2021 for his half of the Christmas break. However, at the end of his holiday visit, he kept the children, until January 31, 2021. They did not see their mother, at all during the month of January;

(g) The children then did not see their father during the month of February, 2021. It seems that the mother now insisted that alternating weekends would resume. However, the children did not see their father, even on those alternate weekends. The mother says there was confusion about which weekend was to be his. Then towards the end of February, there was a Covid-19 exposure, and the children had to quarantine in the mother’s home;

(h) The children’s first weekend with their father, after that period of quarantine, was the weekend of March 12, 2021. At the end of that weekend, there was an incident, which involved the father taking A. into the police station to make a fresh report of abuse by the mother’s partner, and the father then refusing to return the children to the mother; and

(i) As I have already said, between the time the mother launched her motion and its hearing on April 6, 2021, the father returned L. and A., but not K. L. and A. returned to their mother on March 28, 2021. K. has now been in his father’s care for another month, as a result of being overheld.

C. The Conduct of these Motions

[77] The mother filed her Notice of Motion on March 16, 2021. Her motion material consisted of a Notice of Motion, her affidavit sworn March 15, 2021, a supplementary affidavit of her partner, also sworn March 15, 2021, and two of the Court’s prior Orders. However, counsel for the mother advised me that when she attempted to file the material through the portal, it was rejected due to its length. The mother then re-filed the material, but she omitted her partner’s affidavit.

[78] At some point after that, counsel for the father advised counsel for the mother that she had not received any of the mother’s material. Counsel for the mother then re-served only the Notice of Motion, the mother’s affidavit and the two Orders. She did not re-serve the mother’s partner’s affidavit.

[79] The father then served a cross-motion and two affidavits on March 29, 2021, in response to the material which his counsel had actually received. But likewise, the father only filed the two affidavits with the Court; he did not file the cross-motion.

[80] The mother filed a reply on March 31, 2021, with the father’s consent to late file it. She also wished to rely on her partner’s affidavit of March 15, 2021, purportedly in reply too, but consent for late filing that that was not forthcoming.

[81] When this matter first came before me on April 1, 2021, the father sought leave to file his cross-motion. Counsel for the mother did not object to the late filing of the cross-motion, provided she could file the mother’s partner’s affidavit. The father’s counsel then objected, again, to the affidavit of the mother’s partner being placed before the Court, alleging it was not proper reply, and that the father had not had an opportunity to respond to it.

[82] These disagreements about the motion material took close to an hour to resolve. For the reasons set out in my Endorsement of April 1, 2021, I permitted both parties to file all of their material. To address the father’s complaint that he did not have an opportunity to reply to the mother’s partner’s affidavit, I gave him leave to do so by the morning of April 6, 2021, as well as a proper reply to the mother’s March 31, 2021 affidavit (since he had brought a cross-motion).

D. Documentation Concerning the Mother’s Partner’s Criminal Charges

[83] Incomplete documentation about the status of the mother’s partner’s criminal charges was initially placed before the Court. Pursuant to section 24(3)(k) of the Children’s Law Reform Act, any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child is a factor related to the child(ren)’s circumstances that the Court is to consider. Furthermore, pursuant to section 33.3(2) of the Children’s Law Reform Act, the Court has a duty to consider if “a child protection order, proceeding, agreement or measure” and “an order, proceeding, undertaking or recognizance in relation to any matter of a criminal nature” are “pending or in effect in relation to any party to a proceeding under this Part”. Pursuant to section 33(3), to carry out its duty, the Court may make inquiries of the parties or review information that is readily available and that has been obtained through a lawful search.

[84] Although documentation detailing the mother’s partner’s criminal matter is not strictly about the mother, it is clearly relevant and important to the Orders I am being asked to make, and to the children’s best interests. Section 33.3(1) of the Children’s Law Reform Act states that the purpose of section 33.3, is to facilitate “the identification of orders, undertakings, recognizances, agreements or measures that may conflict with a parenting order” and to facilitate “the co-ordination of proceedings”. With that purpose in mind, I read the words “in relation to any party to a proceeding under this Part” in section 33.3(2) to be sufficiently broad as to include the mother’s partner. He is residing with the mother, who is a party, and he is having contact with the children.

[85] Pending the short adjournment between April 1 and April 6, 2021, I directed the mother to serve and file relevant documents explaining the status of the partner’s criminal proceedings. This has rendered the father’s request that the Court order the OPP to report to it about the status of the mother’s partner’s criminal charges moot, although in my view there should be disclosure of other police records in this case.

PART IV: ANALYSIS

A. What are the Governing Orders and/or the Status Quo?

[86] Although in her Notice of Motion, the mother asks for an order for temporary decision-making, her counsel abandoned that request in argument. Mother’s counsel did so after the Court pointed out that there was already an order for temporary custody made on August 18, 2016, and after the Court asked both counsel whether that had ever been varied, such that it was no longer a governing Order.

[87] There is no question that since August 18, 2016, the mother has temporary custody under of the children pursuant to Wood J.’s temporary Order. Unless varied, it is deemed to be an order for temporary decision-making according to the amendments to the Children’s Law Reform Act. While the parents have limited the mother’s sole-decision making authority in certain areas as a result of their Final Consent Orders, neither the June 16, 2017 or the December 20, 2018 Final Consent Orders specify that there is to be joint decision-making over matters not specifically addressed therein, nor is there any other dispute resolution mechanism that would apply in joint decision-making arrangement. Nor do those Orders vary the mother’s sole custody order on a temporary basis, either.

[88] The only paragraph of which I am aware, that touches upon this, is paragraph 45 of the December 20, 2018 Order. Again, it states that “final custody” is outstanding [my emphasis added]. Just because “final” decision making is outstanding and to be determined does not mean that the mother’s temporary order is no longer valid.

[89] Regarding parenting time, the December 20, 2018 Final Consent Order very clearly states that the father is to have alternating weekends with the children (extended on long weekends), plus certain holiday time and telephone access. Although that has not always been followed, this too has never been varied by Order. The parents agreed to an alternate weekend schedule on a final basis on June 16, 2017. They agreed to it again, on a final basis, on December 20, 2018. Leaving aside the fact that paragraph 45 of the Final Consent Order of December 20, 2018 might also make the parenting schedule a temporary order, the alternating weekend schedule was in place for at least three years, from 2017 to 2020, until the parents started changing it post Covid-19. In addition to these Orders, there is also no question, that since the beginning of this case, the mother has been these boys’ primary parent. Wood J. has already made that finding on an interim basis, and I see no new evidence that would cause me to conclude otherwise on an interim basis.

[90] I do not accept counsel for the father’s submissions that there is a new status quo of shared decision-making or for a more expansive parenting schedule, based on the way the parents’ have governed themselves since December 20, 2018. There is no clear evidence of a subsequent agreement or conduct that would lead me to that conclusion on this contested record before the Court.

[91] While I agree that the father has parented the boys for more than just alternate weekends at times, that has arisen in part due to the unusual circumstances of Covid-19, and certain instances of unilateral behaviour. If I am wrong and there is some new status quo of a week-on, week-off schedule, it is more recent and as I will explain there are problems with it from the children’s perspectives.

[92] Therefore, for the purpose of these motions, I find that the governing regime is the following:

(a) The mother still has temporary decision-making authority concerning the three children, by virtue of Wood J.’s order of August 18, 2016, except where that has been modified by the parents’ agreement in their subsequent Consent Order(s). There is no Order that has altered the mother’s temporary decision-making over the children’s health and education insofar as the issues now before the Court on these motions are concerned;

(b) The father’s requests for orders authorizing him to change K.’s school, to continue the children in online learning, and to enroll the children in counselling are requests for incidents of decision-making under section 28 of the Children’s Law Reform Act. Since the mother’s temporary decision-making authority over the children’s health and education in these areas has not been disturbed, the father’s requests in this regard require a prior Order of this Court now to be varied; and

(c) The governing parenting schedule is still that set out in the December 20, 2018 Order. It provides for alternating weekends, certain holidays, and specified telephone access. Regardless of the confusing language in the Final Consent Order of December 20, 2018 about whether that is an interim or a final arrangement, both parents are effectively asking for an interim variation of the Order prior to trial.

B. Whether the Mother’s Temporary Decision-Making and the Parenting Schedule Should Be Varied, Prior to Trial?

[93] There are groups of facts upon which the parties rely to achieve the orders they seek.

[94] The father relies on the boys’, but particularly on K.’s wishes. The father also relies on allegations about the mother’s partner’s treatment of the children. He relies on this evidence in support of his requests to change both decision-making and parenting time.

[95] The mother says the father is causing the children emotional harm. The mother relies on evidence of parental conflict. The mother also alleges the father lacks the ability to parent the children, particularly when it comes to their health and education. She relies on this evidence, both in relation to her request for supervised access, but also to oppose the father’s requests to alter the parenting schedule, to change the school arrangements for K. and to arrange counselling.

[96] Neither parent, each of whom has an initial onus in relation to the claims she and he are advancing, has satisfied me that there should be a new Order about parenting time, the children’s schooling, or counselling. I reach these conclusions for the following reasons:

(a) The record before the Court is conflicting;

(b) The evidence about the children’s views and wishes, upon which the father relies, is insufficient. And the mother has placed before the Court evidence that the children, and particularly K., are being influenced by the father. This needs to be explored;

(c) Both parents failed to place before the Court objective, third party records that obviously exist, which might have shed some light on this matter, and perhaps might have tipped the scales one way or the other;

(d) To the limited extent that there is any commonality amongst the parties’ evidence and positions upon which the Court may resolve some of the conflicts in the evidence, that evidence causes the Court to be concerned about the father’s credibility;

(e) The Court is concerned, also based on the record at this stage, about aspects of the father’s parenting ability and insight;

(f) The mother has failed to tender any evidence that the Society consents to supervising the father’s parenting time; and

(g) For similar reasons as those set out above regarding the state of the record before the Court at this point, I am not persuaded that supervision is appropriate, although that may very well become an issue for trial.

[97] I will now elaborate about the evidence that has led me to these conclusions, and I will explain why I have reached these conclusions on these motions, based only on the record before me.

(1) The Children’s Views and Wishes

[98] Pursuant to section 24(3)(e) of the Children’s Law Reform Act, the Court is to consider the children’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained. According to section 64(1), the Court is where possible to take into consideration the views and preferences of the child to the extent that the child is able to express them.

[99] The father says there is a history of the boys not wanting to return to their mother’s care. In fact, the father says that both K. and L. have “consistently” stated to him and others, including to CAS workers and OPP officers, that they wish to remain in his care. The father also believes that A would benefit from staying at his house, with his older siblings, but acknowledges that A. would also miss his mother.

[100] Regarding the most recent incident of overholding at the end of the weekend of March 12-14, 2021, the father says there was a fresh disclosure of assault of A., by the mother’s partner. While the father later returned L. and A. by March 28, 2021 after the mother launched her motion, the father says that K., age 9, was “adamant” that he would not return.

[101] According to the mother, the father is encouraging the children to lie. She says that K. particularly, has come home after visiting his father, saying that he is not allowed to love the mother’s new partner, because it makes the father mad.

(2) The Involvement of the Police and the CAS, and the Mother’s New Partner

[102] Related to these allegations about the children’s views and wishes, the mother also says that the father has frequently telephoned the CAS and the police with false allegations against her, her partner and her parents. For example, the mother says that when Durham CAS was just about to close its file in December of 2019, the father threatened her, saying he would make sure that CAS was never out of her life. The father, she says, then devised a plan to take the children away from her. Soon thereafter, the father took the boys to the Durham CAS’ office in Oshawa, and this led to her new partner being charged with assault.

[103] The mother says that the father has coached the boys to make other allegations of abuse, at other times too. For example, the mother says that in the summer of 2020, the father took the boys to the police station, where K. made a disclosure that the mother’s step-father was beating him with a baseball bat in the basement, for 20 minutes each day. According to the mother, after the police interviewed all three children, they found the allegations to be incredible, and someone from the CAS later warned the father to stop taking the children to the police or to the hospital.

[104] In order to understand more fully what transpired at the police station on March 14, 2021, leading to the most recent overholding and these motions, and in order to understand some of the Court’s concerns about the father’s credibility, some additional background in regards to the mother’s new partner is required.

[105] The mother and her new partner have been together since about 2017. I am told that except when the partner was prohibited by the criminal court from having contact with the parties’ children, they lived together. Their cohabitation also began at some point in 2017.

[106] In February of 2020, the mother’s new partner was charged with three counts of assault towards the parties’ three children. This, the mother says, followed the father’s threats in December 2019, referred to above.

[107] In his affidavit of March 15, 2021, the mother’s new partner describes an escalating pattern of conflict and allegations, instigated by the father, towards the family, and towards him specifically. The mother’s new partner has deposed that he has “never on any occasion put [his] hands on any of [the mother’s] children out of anger, to discipline or to hurt them.”

[108] The father’s affidavit of March 29, 2021, in part suggests that the new partner cannot be in the presence of the children. At Exhibit “B” to his affidavit of March 29, 2021, the father filed the mother’s partner’s initial undertaking, dated February 13, 2020. It does provide that the new partner was not to communicate or associate, directly or indirectly with the three children. Later on in his affidavit, the father says that he does “not know what happened with the criminal charges against” the partner. He does acknowledge that a “new CAS worker” said that the mother and the boys could move back in with the partner, in the fall of 2020.

[109] As a result of my Order of April 1, 2021, the Court now has before it the subsequent Consent Variation of the mother’s new partner’s initial undertaking, dated November 8, 2020. It allows that the new partner may have contact with the children, as directed by the Children’s Aid Society. And on November 20, 2020, Angela Watson, Family Service Worker, from the Durham CAS wrote a letter approving contact between the mother’s partner and the children, provided that the mother will ensure that the children are supervised at all times while in the partner’s presence, and provided she will ensure that the partner is not in a disciplinary role.

[110] On March 1, 2021, the mother’s new partner entered into a 12-month common peace bond. There has been no finding of guilt. The peace bond runs for 12-months. Like the earlier variation of the undertaking, the peace bond permits contact as directed by the CAS.

[111] Less than one month after the mother’s partner entered into the peace bond, the father took A. into a police station to make fresh allegations that the children are being harmed by the mother’s partner. The father says that on the weekend of March 13, 2021, he saw bruises on A. He says that A. said that the mother’s new partner “threw dinky cars at him and hit him with them”. In addition, the father has filed the affidavit of his mother (the “paternal grandmother”) sworn March 28, 2021, in which the paternal grandmother states she was in the car with the father and the boys on March 14, 2021, as the father drove the boys to the parents’ exchange location - the OPP station in Orillia. The paternal grandmother says that during the drive, one child said that the new partner “beats us up and mommy lets him”. A. then said “he hurts me”.

[112] Furthermore, also according to the paternal grandmother, an unnamed police officer interviewed the children. The children were “adamant” about not going home with their mother. Apparently, it was this unnamed police officer who advised the father and the grandmother to return with the children to their home. It is alleged that the officer said that he would be calling the CAS, and he told the father to telephone his family lawyer.

(3) The Children’s Schooling

[113] The mother has raised at least two concerns about the children’s education, when they are in the care of the father. First, the mother says that as of February 21, 2021, which includes time that the children were under the care of their father on a week-on, week-off basis, and then again for the entire month of January, 2021, L. has missed 50 days and was late 62 times. K. has missed 45 days and was late 9 times under the father’s watch. The mother says that the boys have fallen behind badly at school. This is in addition to the mother’s other affidavit evidence, that the father had regularly overheld the boys on Sunday nights on several weekends in the fall of 2019 into 2020 (after the December 20, 2018 Order, when the parties were still operating on an alternating weekend schedule, before the onset of the Covid-19 pandemic). She says his behaviour resulted in them missing a number of Mondays at school.

[114] The father, by contrast, claims that he had the children following a “wonderful routine”. He says that they attended school online, every day, and on time.

[115] The second school issue, according to the mother, is that the children were given laptops by their school, for them to do their schooling. She says the laptops have been “smashed while in [the father’s] care”. The school has demanded payment for the broken laptops, and the mother says she has had to pay for them, using some of the government financial assistance that she receives during Covid-19. The mother says that tablets she has sent have been broken in the father’s home, too. And the mother also says she has been sending school supplies to the father’s home, which do not get returned.

(4) The Children’s Health

[116] According to the mother, A. has been diagnosed with ADHD. The mother says that whether he suffers from autism or not, still needs to be assessed via a health professional.

[117] The mother says that the father has refused to give the child his prescribed medication for ADHD, since the mid-fall of 2020. She says she sends sufficient medication with A. for each visit with his father, but the father then tells A. that he does not have ADHD, and that he does not need his medication.

[118] Similarly, the mother says that she had also enrolled K. in psychotherapy, and in the SNAPD program. The mother says the father removed K. from the program.

(5) The Court’s Concerns About the Father’s Credibility and Conclusions About the Father’s Request to Change the Parenting Schedule

[119] There is some objective information before the Court that supports the mother’s accounts over the father’s.

[120] For example, in response to his overholding during the month of January 2021, the father apparently claimed that Durham CAS and Simcoe CAS authorized him to keep the children during that month. However, the mother has filed an email dated February 2, 2021, from Lana Pryce, counsel for the Durham CAS, to social worker Ms. Watson and to counsel for both parents, in which Ms. Pryce clearly states otherwise.

[121] Moreover, this email reveals that the children were interviewed by Ms. Watson, in the mother’s home, on February 1, 2021 just after that one month period with their father. Although the father has described the children’s strong and consistent stance about not wanting to live with their mother, the worker, Ms. Watson, wrote that they were doing well. And among other things, the children reported to Ms. Watson that the father does “not always report [things] in a truthful manner”.

[122] Regarding the most recent, March 14, 2021 allegation of abuse, according to another email from Ms. Pryce dated March 22, 2021, A. was taken to the hospital in response to the allegations of bruises. No bruises were noticed by a society worker from Simcoe CAS who attended at the hospital, or by medical personnel. And according to the email, the father was overheard by that worker in the hospital, telling the child what to say about the bruises.

[123] All of this evidence is concerning. Although Ms. Pryce’s emails are hearsay, it suggests to me that there is even more evidence in the Society’s files that may call into question the veracity of the father’s allegations, and the children’s wishes, as stated by the father.

[124] There are obviously other collateral records relevant the other issues before the Court, in addition to credibility. These records would include not only those in the hands of the CAS and the police, but also records from health providers and the children’s school. Such records ought to have been obtained and put before the Court on a serious motion of this nature. Such records will undoubtedly be relevant at the trial, and counsel must take better steps to obtain them. But this is not a trial; it is a motion, and the evidence tendered by the father was insufficient. By contrast, the mother has raised sufficient flags in response to the father’s claims.

[125] In summary, regarding the father’s request to change the parenting schedule regarding not only for K., but for all the children, I am not in a position to find that the children’s views and preferences are those expressed by the father, without better evidence. Nor am I in a position to make findings about family violence by the mother’s partner, based on this evidence. While the children’s views and wishes, and this other evidence certainly needs to be better explored at a trial, what is currently before me is insufficient for the Court to find a material change, compelling circumstances, nor that it is in the children’s best interests to change the parenting schedule pending a trial in the fashion the father has asked. Alternatively put, I would also be concerned if the week about schedule were to continue under the circumstances as they have been presented.

[126] The mother’s allegation about the medication and the father’s failure to administer it for A. are relevant to my conclusion about the request to change the parenting schedule. While the father denies that he fails to administer it to A., to be frank, I also find the father’s response to this issue to be problematic. On the one hand, he says he administers medication to A. when the mother sends it along, but he also alleges the mother inconsistently sends medication, or sends medication in sandwich bags, that is not labelled. In the same affidavit, the father readily admits that A. ran out of medication in January, 2021 and so medication was not administered. I note that the father created this situation in the first place, by overholding A. (and the other children) for the month. The mother would not have known to send extra medication for the month of January, since she did not know that the father was going to overhold A. The father does not say, for example, that he asked for more medication during the month long period of overholding, and it was not sent.

[127] Perhaps tellingly, the father claims that A.’s behavior improved, through “activities and sports” and “lots of love and affection”. He goes on to say that he wants to review the issue of medication with the doctor. This is an indication to the Court, that there is merit to the mother’s concern, that the father is not administering the medication. It appears at this stage that he is disputing A.’s need for it. And I further note that according to Ms. Pryce’s email of March 22, 2021, although again it is hearsay, the Society is under the impression that A. does not have his medication for ADHD when at his father’s.

[128] Likewise, the father denies that he deregistered K. from the SNAPD program. But in a similar vein, he also says he does not see K. having any anger problems.

(6) Analysis and Conclusions About the Father’s Request to Change the Children’s Schooling

[129] Regarding the evidence about the children’s schooling, which speaks to both the parenting schedule and to decision-making, there is the issue of the broken laptops and tablets. The father admits that one of the laptops got broken while at his house, but he says the other one broke while under the watch of the mother. Even if the father’s account is correct and only one computer broke under his watch, he did not respond to the mother’s statement that she had to repay the school for both broken computers.

[130] Regarding the parents’ two conflicting accounts about the children’s problematic school attendance and performance, they simply cannot be reconciled with one another. What would have been more helpful is if one or the other of the parents had actually filed the attendance records and report cards with the Court. Counsel claims that the attendance records could not be printed from the portal. That may be, but the result is nevertheless that the Court has been put in the position of effectively being asked to decide a school issue on a motion, based in on two conflicting accounts by the parents, some of which could have been easily corroborated with objective records

[131] Nevertheless, I still note the following. According to Ms. Pryce’s email of March 22, 2021 that is before me, while the Durham CAS is not prepared to commence a protection application, the CAS still is concerned that the children are not in school. She also notes that they cannot attend school virtually while at their father’s home.

[132] In conclusion, the resolution of the father’s request to change decision-making about the children’s school, at this stage of the case and on this record, is equally straightforward. The mother has temporary sole decision-making. There is nothing in the Final Consent Order that alters that with respect to her decision-making about school, other than their agreement the children shall attend public school. The father has failed to satisfy the Court that it should change the governing order and permit him to enroll K. in school near his home pending trial. He has also failed to persuade the Court that it should limit mother’s decision-making authority, over how the children attend school (ie. that they should attend online versus in person). That is a decision, at this stage, that the mother may continue to make.

(7) The Father’s Request for Counselling for the Children

[133] The father has already arranged for the boys to speak to religious leaders in his community. He now asks the Court to make an order that the boys receive counselling from a Salvation Army pastor and a United Church Minister.

[134] Once again, temporary decision-making would have to be varied for the father to succeed with this claim. The father’s request for this must fail too, especially when considered in light of the absence of evidence before the Court about it. Indeed, there is no evidence, nor even a proper proposal before the Court, as to the purpose of the counselling or the qualifications of the two religious leaders he proposes would provide it.

[135] Counselling may very well be a good idea, but it must be done properly, for a clearly defined purpose, and by a qualified individual.

(8) Analysis and Conclusions About the Mother’s Request that the Father Should Have Supervised Access

[136] I turn to the mother’s motion that the father have his parenting time supervised by a children’s aid society. The mother’s motion for supervised parenting time was neither on notice to the Durham or any other Children’s Aid Society. The mother adduced no evidence that any children’s aid society would consent to supervise the father’s parenting time.

[137] Section 34(2) of the Children’s Law Reform Act states that a court shall not direct a children’s aid society to supervise the exercise of parenting time unless the society has consented to act as supervisor. I decline to Order the Society to supervise in the absence of that consent.

[138] Now that does not mean that another form of supervised parenting time cannot be ordered. However, I am also mindful that with very few exceptions, all children benefit from having a loving relationship with both parents. The case law, in which supervised parenting time has been ordered, invariably includes a multitude of troubling features that are present. Those features may include harassing and harmful behaviours towards the other parent or the child(ren), a history of violence, uncontrollable behaviour, substance misuse, other behaviour that presents a risk to the child, alienation, ongoing severe denigration of the other parent, a lack of a relationship between the parent having parenting time and the child, negligence or abuse, and sometimes when the child’s views and preferences are in favour of supervision. See V.S.J. v. L.J.G., 2004 CanLii 17126 (S.C.J.) ¶ 135, 136.

[139] Even though I have concerns about father’s behaviour in this case, for similar reasons, based on the conflicting nature of the record before the Court, I will not order supervised parenting time. In this instance, it is the mother’s failure to place better evidence before the Court is dispositive of the threshold issue. And I note that pursuant to a different email from Ms. Pryce, dated March 26, 2021, even the Society, which has expressed concerns, takes the position that the parents should follow the Final Consent Order December 20, 2018, not that there should be supervision. I also have no evidence about how the children will experience such an order. This may very well turn out to be significant, given the frequent contact that they have had with their father up until now.

[140] It may be at trial that supervised parenting time will emerge as the order that is in the children’s best interests, for example if the mother proves the facts she has alleged on a complete record, or if problematic behaviour continues. Or the father’s position may prevail. But on a serious motion of this nature, without better evidence, the Court will not make such an Order.

C. Other Evidence of Family Violence

[141] I wish to specifically address the evidence of family violence in this case. Pursuant to section 18(1) of the Children’s Law Reform Act, “family violence” means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct.

[142] Section 24(3)(j) states that any family violence and its impact on, among other things, the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child, is a factor related to the circumstances of the children, which the Court is to consider. Section 24(4) sets out a number of factors that the Court must take into account when considering the impact of family violence.

[143] In this case, the father has made allegations of family violence by the mother’s new partner. Earlier, I considered and reconciled it to the best of my ability, based on the record before me. Different findings may of course be made by the trial judge. Ultimately, I take into account the fact that the allegations are quite contested, the circumstances surrounding some of the disclosures I was told about are suspect, and also that the new partner is subject to a peace bond, and this family is being monitored by the CAS.

[144] But there is also other evidence of family violence, alleged by the mother to have been committed by the father. In particular, the mother says that on Monday, March 8, 2021, she was contacted by Detective Julie Bouwkampt from the Orillia OPP. According to the mother, Detective Bouwkampt informed her that her life, and the lives of the children were in danger. Detective Bouwkampt advised the mother that the father had threatened to end her life to a neighbor, so that he could have the children. The neighbor reported the matter to the police.

[145] The father says he willingly attended at the OPP station to respond to this complaint, he was interviewed, he was released, and the police “shook [his] hand”. He also says that he has a neighbor, that he has complained about due to “problematic behavior”. He says he does not know if the two things are related.

[146] Like most of the evidence before me on these motions, this too is contested. Again, in light of the serious nature of this allegation, it would have been preferable for the mother to have obtained police records or something more outlining the outcome of any investigation.

[147] Still, I wish to ensure that it has been explored properly. I do not know if the Durham CAS has been made aware of this information. For this (and other reasons), this decision is to be sent to Ms. Pryce at the Durham CAS.

D. Police Enforcement

[148] There remains the issue that K. is still with his father in contravention of a court Order. The mother asks for an order for police enforcement pursuant to section 36 of the Children’s Law Reform Act. The mother says that the police have refused to enforce the Order previously, given the absence of such a term in a court order. The father’s evidence is that not only did the police not enforce the order, but a police officer may have even encouraged him not to return the children.

[149] In Neshkiwe v. Hare, 2020 ONCJ 149, I canvassed extensively the use of section 36 of the Children’s Law Reform Act to enforce a parenting order. While much of my analysis considered certain jurisdictional questions that do not present in this case, the principles I summarized at ¶ 407 do apply in this case.

[150] I am not prepared to grant an ongoing order for police enforcement as the mother seeks. No notice of the mother’s motion for this has been given to the police. And given a history of what appears to be one parent or the other exposing the children to the police more than once, it makes no good sense to make the police a permanent feature of the parenting plan at this point, at least until there is a full record at a trial.

[151] In regards to the mother’s request for more limited police enforcement to secure K’s immediate return, that may be necessary but I hope it will not be. So first, I am ordering the father to return K. to his mother’s home by April 15, 2021 at 5:00 pm. The father is to drive K. to the mother’s home in Whitby. This will give the father an opportunity to demonstrate appropriate parenting to K., to demonstrate that there is a parenting Order in place, and to show K. that he will be following it.

[152] After K.’s return, the children then need to settle in their mother’s home for a while. I do not know when the next weekend with the father would fall according to the schedule under the December 20, 2018 Order. For example, it makes no sense to return K. on Thursday, only for his weekend with his father to start on Friday. As such, I am ordering that the father’s next visit with all three children will resume on May 7, 2021.

[153] If the father does not deliver K. by the date and time that I have set out, then there shall be a police enforcement order to secure his return. The mother may not use it until after the time for K.’s return has come and gone. The question of more permanent police enforcement may be revived in the future if necessary on notice to the police, but it is the Court’s expectation that the parties will now follow the Order without involving the police.

E. The Office of the Children’s Lawyer

[154] The father asks for an order appointing the OCL; the mother disagrees.

[155] The mother is opposed to the Court appointing the OCL because it would lead to the involvement of another professional with the children. And she expresses a different concern that the father has been exposing the children to professionals, for improper purposes.

[156] In Fiorito v. Wiggins, 2014 ONCA 603, on a motion in the Court of Appeal, Pardu J.A. declined to appoint the OCL for the appeal. She declined to do so in part because of the stage of case (ie. the case was at the appeal stage instead of being in the trial court). But she also found that the children had been exposed to “countless therapeutic and social work interventions since separation in 2008.” Of import, there had been two custody assessments, the involvement of a parenting coordinator, a school social worker, an access supervisor, and the Children’s Aid Society, and two doctors had provided counselling to the children. Counselling with one of the doctors continued weekly. The evidence was that the children were doing well despite the conflict. The need for the OCL, for the appeal, was contested. And neither party had asked for the appointment of the OCL at any point in the case, prior to the appeal.

[157] In regards to the mother’s concern about involving another professional, I do not intend to base my decision about the mother’s objection to the OCL, by comparing the number of professionals involved in Fiorito v. Wiggins to the numbers in this case. But I do note that there are some key differences here. In this case before me, there has been no consistent professional involved. There have been different CAS workers and different police officers, as a result of the parents’ complaints about each other. There was a therapist for K., whom the mother says the father terminated. There is conflicting evidence about the extent to which the children are doing well. There is some evidence the children settled quickly when returned to their mother at the end of January 2021, but other evidence that they are continuing to be impacted by the parental conflict.

[158] The children’s views and preferences are in issue and disputed. While there are undoubtedly collateral records that are relevant to this case, because most of those records were not placed before me on these motions, I have no way of yet knowing what the quality of that evidence will be insofar as their ability to provide reliable evidence about views and preferences to the Court. And there are serious allegations that the children’s views and preferences are being influenced, which a skilled lawyer for children or a clinician will be able to assess.

[159] I appreciate that the two older children are only 11 and 9, and that there will be a question about the weight that will attach to their wishes in the final analysis, if those wishes are determined to be independent. But I do not wish to leave the trial judge in a deficit, when it comes to the evidence about views and wishes at trial. The very analysis above, about the Court’s inability to make a determination about K.’s (and the other children’s) wishes on this motion, underscores the very need for the OCL in this case if there is to be a trial.

[160] Additionally, this case includes allegations of abuse, allegations of parental influence and allegations about poor parenting skills. At least two of the children have particular health needs and at least one child has special educational needs. One plan proposed by one of the parents, if implemented, might involve the separation of the siblings.

[161] And unlike in Fiorito v. Wiggins, this case remains at the trial stage. The OCL had already been appointed in this case in 2017, but did not get involved. I was not told about much information about this appointment. This is not a situation like in Fiorito v. Wiggins, where neither party had asked for the OCL until the case was effectively over, subject to the appeal.

[162] Therefore, I agree with the father’s modified position that the OCL should be appointed. If the OCL accepts the Court’s referral, which the Court hopes it will, it will undoubtedly involve someone with special skill interacting with children in as minimally intrusive a manner as possible, and sensitively.

[163] The Court does not accept the father’s position in his Notice of Motion that private counsel should be appointed, to talk to the children and to write a letter to the Court. First, the parents cannot afford a retainer. While the father says he will access charitable funds to pay for the lawyer, there is a dearth of evidence about the proposed lawyer’s hourly rate, and how much time he requires. There is a dearth of evidence about how much funds the father thinks he can access and whether that will suffice. It makes no good sense to appoint a lawyer for the children, only to have the funding run out.

[164] Second, I strongly doubt that the methodology proposed by the father (ie. talking to the children and writing a letter to the Court) is appropriate. In light of the issues impacting this family, some of which are clinical, were the Court to appoint the private lawyer, I would recommend that a clinician assist that lawyer. The clinician would also have to be sourced and paid. There could be issues about that person’s qualifications.

[165] Moreover, just as the Court has commented about the lack of records before it now, collateral information would clearly have to be obtained by the OCL. The process is more involved than just hiring a lawyer to talk the children and writing a letter.

[166] Therefore, the Court’s appointment will be pursuant to sections 89(3.1) and 112 of the Courts of Justice Act. The OCL retains the discretion as to which service to provide to this family, as is usual with such an appointment, but the Court asks the OCL to seriously consider the Court’s comments in this decision.

[167] I am aware that the OCL sometimes declines the Court’s referral where there is CAS involvement with a family. I strongly request that the OCL not decline this referral, just because there is CAS involvement, for the reasons I have already expressed above. And if there is to be a lawyer appointed under section 89(3.1), then the Court asks that the OCL consider providing that lawyer with a clinical assist. Or a section 112 report would be helpful, instead. Either way, the Court could also benefit from receiving recommendations about whether and if so, what kind of counselling these children need, after a full exploration of the various issues in this case is completed.

[168] If the OCL declines the referral, then the issue of private counsel may be revisited, but there must be better evidence to support such an order, along the lines of what I have just mapped out. The lawyer’s mandate would also have to be better fleshed out.

F. The Parties’ Other Claims

(1) The Mother’s Request that the Father Submit to a Mental Health Assessment

[169] The mother’s counsel conceded that this request should be deferred, based on the father having already submitted to an assessment. During submissions, counsel for the father agreed to provide a copy of the existing assessment to the mother’s current counsel.

[170] Even if an assessment had not been previously done, the mother did not address the Court’s authority to order this. If the request, for example, was brought under section 105 of the Courts of Justice Act (and Rule 1(7) of the Family Law Rules and Rule 33 of the Rules of Civil Procedure), none of the necessary evidence was before the Court for the Court to make such an Order. If the request for this assessment is based on some other authority, then I was not told of it.

[171] The request for this assessment is therefore dismissed without prejudice to it being revived, if the mother is dissatisfied with the copy of the assessment that she receives from father’s counsel. If the mother intends to revive this request, it needs to be done properly and based on a proper evidentiary record. At a minimum, that might include information about the reason for the assessment and the scope of the assessment, who will conduct the assessment, his or her qualifications, evidence about cost, how it will be funded, when and where it will be done, the time needed for this assessment to be done, and what information is to be supplied to the assessor. None of this was placed before the Court on this motion.

[172] I might suggest that there may also be already existing health records relating to the father, in the possession of a health care provider, that could be an alternative. Counsel should explore this.

(2) The Mother’s Motion to Change the Court Order Respecting Her Responsibility to Drive to Half of the Exchanges

[173] The mother wants the father to do all the driving because she does not have access to a vehicle, and she says certain members of her family, whom had previously driven her, may be no longer willing to do so on account of the father’s behaviour at exchanges.

[174] On the father’s part, I was first told that the father claimed to have lost his car insurance, that he could not drive and that his mother had been helping him, sometimes. But later in submissions, I was told that the father had secured new car insurance as of April 1.

[175] There may be some merit to the mother’s request about driving if there continues to be conflict at exchanges, such that her family members are no longer willing to help out. But the difficulty is that exchanges are already addressed in the parties’ Final Consent Order. To order this would entail a change to that aspect of a Final Order, without any proper proceeding pending before the Court. If the mother intends to pursue this, she should do so properly.

[176] In any event, during submissions, the parents seemed to agree the parents and any accompanying family members will try remaining in their cars at the actual exchanges at the OPP station. The father may get out briefly to assist A. out of his car seat, if necessary. The children may then go from one car to the other. The parents should park in a manner that is safe for the children to do this at their exchange location. This should decrease any opportunity for conflict between the two households, if everyone behaves.

[177] I might also suggest to the parties that they again consider supervised exchanges at an access center, when this is possible. I note that this is contemplated in paragraph 15 of the Final Consent Order of December 20, 2018. While it may not be possible to use an access center right now because of Covid-19 closures, perhaps the parents should explore this as soon as they re-open.

(3) Telephone Access

[178] The requests to change telephone access, by both parents, are dismissed. Telephone access was already addressed in the Final Consent Order of December 20, 2018.

(4) The Father’s Request for Information About A.’s ADHD

[179] The sharing of information is also already dealt with in the Final Consent Order of December 20, 2018. I direct the father to paragraphs 21 and 22 of the Order. I am not prepared to add additional terms here, sought by the father. Obviously, there should be an exchange of information about this. The father is also already at liberty to get information directly from the child’s health care providers.

(5) Child Support

[180] The mother abandoned her request for child support during the motion. Her counsel conceded that this was already addressed in the Final Consent Order of December 20, 2018.

G. Disclosure Terms and Case Management Directions

[181] The father asks me to request that the Durham CAS and the police report to the Court. The information he wants the police to report about is now before the Court as a result of my April 1, 2021 Order. But as I have said, there is other information in the hands of the police that is relevant. In any case, I do not believe that such reports, from either the CAS or the police, are the best evidence for the next significant adjudicative step in the case, which should be a trial.

[182] I have already indicated that the record before the Court on this motion was deficient. The gaps in the evidence included the absence of records from the CAS, the absence of police records, the absence of school records and the absence of health records. The child A. has special health and educational needs. There are also allegations about K.’s therapy, which mother says the father cancelled. These missing records, once obtained, may be admissible at trial as business records, or oral testimony may be required. Letters from the CAS and the police are not admissible hearsay at a trial.

[183] Both counsel reported to the Court that they have made requests for records from the CAS in the past, without success. I do not know what steps have been taken by them to secure police records. These motions were not on notice to either the Durham CAS or to the police.

[184] Therefore, I am prepared to request that the Durham CAS produce its file concerning this family to counsel within the next 30 days. If there are any issues about any terms of the productions or redactions that the parties and the Durham CAS cannot agree to, then the parties and counsel for the Durham CAS should attend Court on the return date and be prepared to address that.

[185] I will give separate directions to the parties respecting obtaining police notes and records.

[186] There will be two next steps set in this case. One will be in the near future, to ensure that the OCL has accepted the referral, for the Court to be informed as to the kind of mandate it is undertaking if it accepts the referral, and for the parties and the Court to estimate how much time is required until the OCL is ready to proceed. Then there will be a combined Settlement Conference/Trial Management Conference, set at an appropriate time thereafter.

[187] The parties should not just wait and rely on the OCL to collect collateral records. They are to start that leg work now. They will need records for trial anyway. If they undertake this leg work right away, there will be a dual benefit. When the OCL gets involved, they will already have records and they will be in a position to assist the OCL, by providing them. This will enable the OCL to get up to speed more quickly.

PART V: ORDER

[188] Therefore, I make the following Orders:

(a) The father shall return K. to his mother’s home in Whitby by April 15, 2021 at 5:00 pm. The father is to drive K. to Whitby;

(b) If the father fails to return K. by April 15, 2021 at 5:00 pm, then any police force, having jurisdiction in any area where it appears that K. may be shall locate, apprehend and deliver him to the mother;

(c) The question of further police enforcement may be revived in the future, if necessary;

(d) The schedule in the Final Consent Order of December 20, 2018 shall resume on May 7, 2021. That shall be the father’s first weekend, per the alternating weekend regime in the Order;

(e) If this has not already been done, the father shall forthwith produce to the mother, the mental health assessment that he says he submitted to, in 2017;

(f) The mother’s request for an order that the father undergo a mental health assessment is dismissed without prejudice to it being revived, if the mother believes the mental health assessment that the father provides is insufficient;

(g) The balance of the mother’s Notice of Motion dated March 15, 2021 is dismissed;

(h) The Office of the Children’s Lawyer is appointed. A copy of these reasons are to be provided to the OCL along with the standard form Order;

(i) If the Office of the Children’s Lawyer declines the referral, then the father’s alternative request for a different appointment may be considered on the first return date before me, but additional evidence will be required, as set out above;

(j) The Court requests that any notes and records in the possession of the Durham CAS concerning this family and concerning the mother’s new partner but as they relate to this family, will be provided to counsel for the parties within 30 days. If Durham CAS requires the parents to consent to any terms pertaining to the release, then these shall be communicated to the parties within 7 days. If there is a dispute about the contents of this aspect of my decision, or if the parties cannot agree on any terms that Durham CAS seeks, or if there is some other issue because this request is being made not on notice to the Durham CAS, then counsel may attend before me when this matter returns for the first time, and I will hear any concerns from Durham CAS and settle any disputes;

(k) The parents shall each sign a consent and give it to the other, for the release of police occurrence reports and any documentation in the possession of relevant police forces that pertain to themselves and the children within 7 days. Also within 7 days, the mother shall make her best efforts to secure a similar release from her partner pertaining to the charges and other allegations against him involving either L., K. or A. The parents are then to each request copies of documentation in the possession of the police concerning the family. These requests should be submitted well in advance of the return of this matter before this Court. If there are any issues, then they may be addressed when this matter returns before me for the first time;

(l) The balance of the father’s Notice of Cross-Motion dated March 29, 2021 is dismissed;

(m) In addition, the parties shall take steps to obtain the children’s school, medical and counselling records. Within 7 days, the parents shall sign consents for the release of that information to both of them. If there is any issue then I may be spoken to at the first return date;

(n) On the first return date, the parties are to advise the Court about the status of the OCL, they shall address the need for a different appointment if the OCL declines the referral, and they shall be prepared to address any disclosure issues;

(o) If the parents wish to amend his and her pleadings for trial, then draft pleadings should be prepared and filed for the first return date, too. The pleadings should contain the specific orders that each parent is seeking. If the parents are claiming any relief that has already settled on a final basis, then they shall be prepared to explain the basis upon which such an amendment should be permitted. Counsel shall also be prepared to address the confusion in the Final Consent Order of December 20, 2018, as to what remains in issue for trial;

(p) The first court date that the parties shall return before me shall be May 17, 2021 at 10:30 am. If counsel are not available, they shall contact the trial coordinator and secure a different date around that time, ideally in the same week. They shall not obtain a long adjournment into the future or adjourn this matter without any return date being set. Counsel are to request of the trial coordinator that she please canvass with me any alternative dates, and I will approve them;

(q) A date for a combined Settlement Conference/Trial Management Conference shall be set on that first return date, once the Court is aware of the status of the OCL and any timing requirements;

(r) If the parties wish to deviate from any procedural directions set out in this decision, they must obtain judicial approval;

(s) Pending the combined conference, any further motions, including 14B Motions, are to be scheduled before me, where possible and provided I am sitting. I direct the parties to indicate in their motion materials that I have included this term in this Order. In the event that such a motion comes before another judge in error, or because I am not sitting, I direct the parties to ask the presiding judge to read this decision;

(t) If either party seeks costs, then he or she should serve and file a Bill of Costs, copies of any Offers to Settle previously served, and any relevant case law, at least 14 days before the first return date. The other party may then do the same 7 days before the first return date; and

(u) The parties should communicate with each other in advance if costs are being sought. The party seeking costs shall be the party to serve her or his material first. If both parties are seeking costs, then the mother may deliver her costs material first, and the father second, according to the timelines I have set. Costs will be argued on the first return date.

Justice Alex Finlayson

Released: April 14, 2021

COURT FILE NO.: FC-20-375

DATE: 20210414

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

B.R.M.

Applicant Father

– and –

M.A.E.M.

Respondent Mother

REASONS FOR DECISION

Justice Alex Finlayson

Released: April 14, 2021

[^1]: In fact, it took almost one hour on April 1, 2021 to sort out the filing and other issues with the parties’ motion material. The motion on April 6, 2021 was argued over the better part of a day, with some breaks to allow the Court to address other matters. [^2]: In McCall v. Res, unlike this case before me, there was a Motion to Change before the Court to alter a prior Consent Order. But the material change threshold was not met. In this case before me, the initial proceedings are still pending. There is no Motion to Change before the Court, let alone did I hear argument about the material change threshold. [^3]: Sundridge, Ontario is located in between Gravenhurst and North Bay, Ontario. At least since the Final Consent Order of December 20, 2018, the mother now lives in Whitby as a result of the parties’ agreement, although around the time her new partner was charged with assault, it appears that she went to her mother’s home in Sundridge for some time. That was sometime in late 2019/early 2020, until perhaps as late as the fall of 2020. [^4]: Specifically, he found the father was a “chronic liar and teller of tall tales”. [^5]: I mention this specifically, because the mother’s current motion before the Court contains a claim that the father obtain a mental health assessment, yet one apparently already exists. [^6]: The Court determined that it lacked jurisdiction because the mother and the children now live in Whitby.