COURT FILE NO.: FS-19-10732

DATE: 20210611

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

G.C.[^1]

Applicant

– and –

R.D.P.

Respondent

Amal Nayyar, for the Applicant

Andrew Chris and Cara Senese, for the Respondent

HEARD: April 6, 7, 8, 9, 12, 13, 14, 16, 2021 (Written closing submissions received April 23, 27 and May 4, 2021)

Kimmel j.

Table of Contents

Background. 1

Common Ground. 1

The Shared Parenting Regime – A Point of Contention. 2

The Circumstances Surrounding the Separation Agreement 2

The (Ir)Relevance of the Separation Agreement 3

Angry Interactions and Communication Failures. 5

Procedural History. 9

Relief Sought 10

Summary of Outcome. 12

Issues to be Decided. 13

Analytical Framework: The Best Interests of the Children is the Paramount Consideration. 13

The Evidence About The Best Interests of the Children. 15

The Report of the Office of the Children’s Lawyer 15

The OCL Report 15

The Applicant’s Dispute Notice and Challenges to the OCL Report at Trial 16

Updating the OCL Report 18

The Views and Preferences of the Children. 21

Statements Made to the OCL Investigator 21

Expressions by Words or Conduct 22

The Applicant’s Request for the Court to Interview JECP. 25

Analysis of Factors to Consider in the Determination of the Best Interests of the Children. 27

Historic Parenting Roles and the Care of the Children (s. 16(3)(d) of the Divorce Act) 27

Other s. 16(3) Divorce Act Factors that are “Neutral” in this Case. 28

(a) Section 16(3)(b) the nature and strength of the children’s relationship with each spouse, their siblings and grandparents and any other person who plays an important role in their lives: 28

(b) Section 16(3)(c) each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse. 29

(c) Section 16(3)(f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage. 30

(d) Section 16(3)(g) plans for the children’s care. 30

(e) Section 16(3)(h) – the ability and willingness of the parents and their partners to care for and meet the needs of the children. 31

(f) Section 16(3)(i) – the ability and willingness of each parent to communicate and cooperate, in particular with one another on matters affecting the children. 32

Section 16(3)(j) - Allegations of Family Violence. 32

Section 16(3)(a) and (e) - The Children’s Views and Preferences – Is there a Need for the Stability of a Home Base?. 34

Analysis and Determination of the Issues Raised. 35

Parenting Time. 35

Residential Schedule. 35

Holiday and Vacation Schedules. 37

Decision Making Regarding Health, Education, Counselling and Legal Documentation. 37

Ancillary and Other Relief. 43

Final Order and Costs. 43

Background

[1] The applicant “mother” and the respondent “father” went through a difficult and tumultuous time following their separation in early 2017, after 11 years of marriage. At the time of their separation, their two children were aged nine (the eldest, born [...], 2008, “JECP”) and aged two (the youngest, born [...], 2015, “JOCP”). At the time of this trial, JECP was 13 years old and JOCP was 6 years old.

[2] The parents were married in Brazil in 2006, lived in the United States for a period of time (during which JECP was born), and came to Canada in 2013 without status. They have lived in Canada since then. None of them had status when JOCP was born in Toronto in […] 2015. The mother, the father and JECP have now all applied for permanent residency status.

[3] Both parents worked to provide for their family before and after they separated. They struggled financially for a number of years after they came to Canada. The father worked laying floors and eventually started his own business which he still carries on today. The mother cleaned houses until she took her maternity leave in the summer of 2019. Neither of them have any reported income prior to 2020 because of their lack of status. Despite their financial struggles and their differences, they have made a good life for their children here. They both now have new partners. The mother and her partner moved in together in January of 2019 and have a child, who was born in […] 2019. The father moved in with his partner and her children from a previous relationship, aged 9 and 6, around the end of 2019.

Common Ground

[4] Prior to the trial, the parents consented to the July 15, 2020 order of Hood J. that resolved the issues of spousal support and property division, which had been agreed to in their separation agreement.

[5] At the outset of this eight day trial I was provided with a consent order to sign that encompassed a multitude of issues that the parents had reached agreement on, regarding the severance of the divorce,[^2] child support and related expenses, retroactive child support, arrangements for travel, and the terms for communication and the sharing of information (the “April 12, 2021 consent order”). The parents have never had any difficulty in reaching agreement about matters of religion for their children. The April 12, 2021 consent order also sets out the current arrangements for decision making, responsibility and authority for the children’s government documents, parenting time and the holiday schedule, which are matters that the applicant seeks to change through this trial.

[6] The parents are commended for what they have been able to agree upon. They are also commended for their love and devotion to their children. Whatever they may think of each other and whatever motives they may attribute to each other, they both very obviously love and care deeply for, and about, their children and have made great strides towards creating home environments that are enriching and nurturing for them. It is very fortunate for everyone that each of the parents have re-partnered with people who are willing to open their homes and their hearts to the children as well. The children are well cared for in both homes.

The Shared Parenting Regime – A Point of Contention

[7] Since in or about March of 2018, the parents have had an equal and shared parenting schedule, that was formalized into a separation agreement dated October 16, 2018 (the “separation agreement”). The separation agreement also provided for joint decision making (among many other matters that have since been the subject of the various consent orders referenced previously).

[8] The applicant claims to have been in a state of heightened financial and emotional distress in February 2018 when the “shared parenting regime”, later formalized in the separation agreement, was first put in place. She believed that this was to be only a temporary arrangement. She now realizes that she was naïve to think that giving up support and trying to work harder herself would enable her to improve her financial position.

[9] The applicant commenced this proceeding in 2019 seeking, in part, to set aside the separation agreement. It is within the context of this proceeding that the various consent orders have been made. In the meantime, the status quo shared parenting regime has remained in place.

The Circumstances Surrounding the Separation Agreement

[10] After the parents separated in early 2017, the children lived with their mother, her aunt and the father’s younger sister in the apartment that they had lived in as a family, and the father moved out. At first, the father did not have accommodation for the children. He visited them at the apartment but did not have a place for them to stay with him. In about March of 2017, the father began renting a room in a shared house and they began having some overnight visits with him, but they continued to primarily live with their mother.

[11] At about this same time, in about March 2017, the father started to pay approximately $1,600.00 per month in uncharacterized support payments. He also contributed towards the cost of JOCP’s babysitter. The mother used this money to cover her rent, primarily. She worked as a cleaner and earned what she could for food, clothing and other necessities for her and the children. The father’s younger sister and the mother’s aunt contributed to the household expenses while they were living in the apartment with the mother and the children.

[12] Starting in September 2017, the father began to reduce the monthly amounts that he was paying, and he did not always make his payments at the beginning of the month. This continued despite the mother’s pleas for greater financial assistance to enable her to cover the costs of the babysitter, rent, utilities, and food. The father insists that he was paying what he could afford, while also paying for his own rent and expenses. The mother believed then, and still believes now, that some of the father’s expenses were for non-essential items and that he was not prioritizing the children’s basic needs in this time period.

[13] In February 2018, the mother was at her wits’ end. She suggested that the parents share the parenting time and responsibilities on a week-about schedule (referred to as the “shared parenting regime”), thinking that would enable her to work and earn more money during the weeks when the children were with their father. The mother only intended this to be a temporary arrangement.

[14] Later that year, the mother advised the father that she wanted to get a divorce. The father found a lawyer from Brazil who prepared the separation agreement (eventually signed on October 16, 2018). The shared parenting regime was reflected in the separation agreement. The mother testified that she was led to understand at the time that she had to enter into this agreement for shared parenting in order to file for divorce, but that it could be changed in the future. The lawyer who prepared the separation agreement and purported to advise and represent both parents in its preparation and execution was not called to testify at the trial.

[15] No spousal support was payable under the separation agreement. Under this shared parenting regime, the father agreed to pay the mother $150.00 every two weeks to be used for the support of the children, which was substantially less than he had been paying prior to when the shared parenting regime was established. The parents eventually settled the support issues raised in this action, including the mother’s claims for arrears of child support, just prior to trial. This was confirmed by the March 8, 2021 endorsement of Hood J. and incorporated into the April 12, 2021 consent order.

The (Ir)Relevance of the Separation Agreement

[16] It was acknowledged by the mother during her cross-examination that the financial issues, including the child support issue that she identified as the main source of conflict in 2017/2018, have been resolved by the pre-trial consent orders and that those historic financial issues have no bearing on the current parenting dispute and are unrelated to the father’s ability to parent the children today.

[17] The parents both submit that the court can and should have no regard to the separation agreement in the determination of the remaining issues at this trial. They come to this from different perspectives, but the end result is the same:

a. The applicant puts it this way:

i. “In making a parenting order, the Divorce Act (s.16(1)) expresses that the Honorable Court is ONLY to take into consideration the best interests of the children of the marriage in all the circumstances.”

ii. “The Applicant submits that by the [various final consent orders that the parties entered into prior to the trial[^3]] varying the separation agreement the parties have treated the separation agreement as having been set aside/null or void already.”

iii. “The Family Law Act s. 56(1) is clear that the determination of a matter respecting the education, moral training or decision-making responsibility or parenting time with respect to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child (see Patrick v. Taylor, 2013 ONSC 2971, paras. 14-16; F.F.R. v. K.F., 2013 NLCA 8, paras 47-49).”

iv. “In any event, whether or not the court decides to set aside the agreement on account of the above [arguments of lack of financial disclosure, mistake/misrepresentation, and/or duress] there is no doubt that the court may disregard even a valid domestic contract where to do so is in the best interest of a child per s. 56 of the Family Law Act. This court also has parens patriae jurisdiction over children where their best interests are at risk. The Ontario Court of Appeal in Woodhouse v. Woodhouse (1996), 1996 CanLII 902 (OCA), 29 O.R. (3d) 417, a frequently cited case, held at pg. 431 “…Separation agreements are not binding on the court because it is the interests of the children rather than those of the parents which are at issue…”.”

v. The Supreme Court of Canada has consistently held that the child’s interests will determine who will have custody and be primarily responsible for major decisions and that “[a]greements between parents as to any right of the child, be it custody, access or child support, are not binding on courts and must be viewed in light of the best interests of the child.” Gordon v. Goertz, [1996] S.C.R. 27; see also P. (D.) v. S. (C.), 1993 CanLII 35 (SCC), [1993] 4 SCR 141.

b. The respondent puts it this way:

i. “The question to be answered is not "is the Separation Agreement valid?", rather, it is "what parenting provisions are currently in the best interests of the children?”

ii. “It is not [the father's] position that the shared parenting schedule should continue as a result of the Separation Agreement. The validity of the Agreement became immaterial when the property and spousal support terms in the Agreement were incorporated into Justice Hood's Final Order on consent, given that child support and parenting provisions can always be reviewed by the Court, even in the face of a Separation Agreement. The parties' have also consented to the Order of April 12, 2021 replacing the child support provisions and most of the parenting provisions from the Agreement. The significance of the Separation Agreement is merely that it confirms that the parties jointly agreed to shared parenting and joint decision making for a second time in October 2018, after having agreed for the first time in February 2018.”

[18] Thus, although the applicant sought to set aside the separation agreement when she commenced this proceeding in June 2019, that relief is no longer sought. The separation agreement is moot to the extent it addresses matters that are now the subject of court orders, and it is not relevant to the determination of the remaining issues of decision making and parenting time that are to be decided at this trial with regard to the best interests of the children.

Angry Interactions and Communication Failures

[19] The separation was not amicable. They each expressed their emotion and hurt in different ways. They sometimes behaved badly towards each other. The respondent argues that none of his past behaviour is relevant to the issues that I must decide.

[20] Section 16(5) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as recently amended (S.C. 2019, c. 16), states that, "[i]n determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the children under a contact order." This reflects earlier guidance from the Supreme Court of Canada that a parent's past conduct should only be considered to the extent it is relevant to a parent's ability to act as a parent: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 23. The Court of Appeal has further confirmed that a party's actions that reflect poorly on a party as a spouse may not necessarily affect that party's ability to parent: Somerville v. Somerville, 2007 ONCA 210, 36 R.F.L. (6th) 7, at para. 16; see also Maharaj v. Wilfred-Jacob, 2016 ONSC 7925, at para. 46.

[21] Many of the incidents of the father’s behaviour that the mother recounted in her testimony date back to the aftermath of their separation and cannot fairly be considered to be relevant to the father’s ability to parent the children today, even if they might have been relevant to his parenting abilities at the time. The same is true about the events that the father recounted of the mother’s behaviour towards him in those early years.

[22] The events or anecdotes provide some context for understanding the relationship between the parents and their manner of dealing with each other. This has helped to explain how the parents became polarized on the issues that they could not resolve and that the court has been asked to decide for them. Some of these events and anecdotes include:

a. The physical attack that the mother suffered at the hands of the father’s girlfriend and her daughter in early 2017, in the father’s presence.

b. The father’s decision not to let JECP come to his apartment, that was walking distance from her school, to save the mother the cost of paying someone to pick her up after school.

c. The father’s insistence on taking JOCP during “his week” immediately following JOCP’s surgery and then suggesting that JOCP should go to his babysitter rather than be with the mother when the father was working because “there is no difference between him going to your house or to the babysitter.”

d. The mother’s calls to the police twice in June 2019, when the mother was unable to reach JECP on her cell phone after an argument between the mother and the father and an argument between JECP and the father.[^4]

e. The argument that JOCP witnessed and JECP heard the end of, that took place on the father’s driveway on August 15, 2019 when the mother was, according to the father, late in picking up the children and the father, according to the mother, insulted her new baby, which led to a further interaction between the mother’s partner and the father in front of the mother’s house on August 19, 2019.

f. The mother’s withholding of the children so that she could keep up her tradition of taking the children to their first day of school in September 2019, during the father’s week with them.

g. The father’s refusal to consider allowing the mother, while she was on maternity leave in the fall of 2019, to pick the children up and keep them after school during his weeks with them.

h. Numerous examples of disputes and disagreements during which insults or criticisms were exchanged, as are reflected in the WhatsApp messages between the parents.[^5]

[23] The historical context and the tone of their dealings makes it clear that the parents do not communicate with ease. There is an undertone of hostility on both sides in much of their dialogue. Many of the recommendations contained in a report that was prepared by the Office of the Children’s Lawyer issued on January 31, 2020 (the “OCL Report”) were directed to improving communication between the parents, that the OCL investigator felt would, in turn, reduce the opportunities for conflict. About twenty of the twenty-seven recommendations made in the OCL Report have been implemented through the consent orders already agreed to. That is a very positive development.

[24] The OCL investigator found that both parents shared more than they should have with JECP about their disagreements, including about this litigation. Despite the best of intentions, neither parent has been able to shield the children from their hostility towards, and dislike of, each other.

[25] There were various observations made in the OCL Report about things that the mother, in particular, had discussed with, or within earshot of JECP, or involved her in. The OCL found that the mother needed to stop sharing her views and concerns with JECP. Counselling was recommended. Similar recommendations were made for the father as well, although he and his partner had already started to attend counselling and to adjust their behaviour to avoid talking to or within earshot of JECP about the applicant and conflicts with her. That might explain why the counselling recommendation in the OCL Report was more focussed on the mother.

[26] Despite the specific concerns that were raised with the OCL investigator by the applicant about the father’s past behaviour, at the time of the OCL Report concerns were not identified about the father’s willingness and ability to make child-focussed decisions. However, the applicant identified three recent incidents that occurred after the OCL Report involving medical/health issues relating to JECP that renewed the applicant’s concerns that not all decision making by the father has been child-focussed:

a. JECP wanted braces. The mother found out that if they were put on before the end of 2020 a significant portion of the cost could be covered by her partner’s health benefits. She suggested that the father’s proportionate share be used to cover the uninsured portion. She researched payment installment options. The father insisted that the parents proportionally share the uninsured portion even though it was a benefits plan that a third party, the mother’s partner, had paid into that was providing the insured portion. The father also questioned the need for braces in that year and claimed he could not afford to pay for them. To avoid losing the insurance coverage, the mother ended up arranging and paying for the uninsured portion (with assistance from her partner). The father has not contributed to the cost of JECP’s braces.

b. JECP had acne and a medication was recommended by the family doctor who also treats the mother. After the initial appointment and recommendation from the family doctor the mother thought that the father had agreed that he would pay his proportionate share of the cost of the acne medication. Later, after he got home and spoke to his partner about it, the father began to question whether this medication was appropriate (even though it was the same medication the mother had taken for the same problem in the past). The father and his partner then attended at the doctor’s office without the mother to discuss this medication and the doctor’s recommendations, which prompted a call from the doctor to the mother and set her off. The mother ended up paying for this medication for JECP because the father did not agree with her taking it. No alternative acne treatment has been suggested.

c. After learning that JECP had already attended her medical examination for her permanent residency application, rather than contributing to the cost of that examination that the mother had incurred, because he was upset about not knowing about the examination and not knowing that JECP had received a health card, he insisted on taking her for a second examination (during the COVID-19 pandemic) and not using her valid first examination to support his permanent residency application.

[27] These same incidents are examples that the father points to of the mother taking matters into her own hands when he does not agree with her.

[28] In the more recent times, there are examples of both parents seemingly feeling threatened by the other’s involvement with JOCP’s class. While this has produced the positive benefit for JOCP of being able to “show off” his parents and step-parents as mystery readers and participants in classroom activities, it is not a healthy “competition” for parents of a child to be engaged in as it is not child-focussed.

[29] Many of the recent disagreements between the parents have resulted from actual or perceived involvement or questioning by the father’s new partner about what the mother had proposed in relation to the children. Before this new partner came into the father’s life, the mother was not used to getting push-back from him about matters concerning the children. The father had generally allowed the mother to take the initiative about the children’s activities and health and listened to, and gone along with, her recommendations. The mother appears to be less interested in what the father is asking or suggesting and more focussed on the coincidence of these questions and suggestions with him having re-partnered.

[30] The tutelage by the father’s partner of his English text messages to the mother have not gone unnoticed by the mother, and this has been perceived by her as the partner not only correcting his vocabulary and spelling but meddling in the dialogue and decision making about the children. This belief was further fuelled when the new partner signed the children up for a city camp under her registration and the mother found that she was not indicated even as an emergency contact for the children when she attended with them on the first day of camp.

[31] I have no reason to believe that the father’s new partner wishes to, or ever will, replace the children’s mother. Their bond with their mother is too strong. However, the father’s new partner does have a lot to offer, as does the mother’s new partner. The children are fortunate to have step-parents who want to be involved in their lives and care about their well-being. The ground has shifted with the expansion into two blended families and the parents have not adapted their historic decision-making practices to account for the natural influences and needs of the other members of each household.

[32] Managing two blended families undoubtedly has introduced more opportunities for conflicting schedules and demands on the children’s time. It will continue to be challenging. Flexibility and two-way communication will be an essential ingredient to the success of any parenting and decision-making regime going forward. This has not been something that either parent has demonstrated a good track record of in the past. They have been and will need to continue to work at it. The incorporation of many of the recommendations from the OCL Report into the April 12, 2021 consent order is an important step in that direction for both parents.

Procedural History

[33] After this application was commenced in June 2019,

a. An interim order was made by Kristjanson J. on September 30, 2019 confirming the shared parenting regime under the separation agreement pending further order of the court;

b. Justice Kristjanson confirmed in an endorsement made on July 30, 2020 that both parents should encourage and facilitate the shared parenting regime and granted leave:

i. To the mother to bring a motion to change that regime; and

ii. To the father to bring a motion for contempt if that regime was not followed, encouraged and/or facilitated by the mother.

Neither of these interim motions for which leave was granted were brought.

c. An order was made on consent following a case conference before Kristjanson J. on September 30, 2019, requesting that the OCL conduct a s. 112 Courts of Justice Act, R.S.O. 1990, c. C.43, investigation and prepare a report and recommendations:

i. The OCL consented to provide their services on November 5, 2019;

ii. The OCL completed its investigation and report and presented the findings at a disclosure meeting on January 16, 2020; and

iii. The OCL Report was completed on January 29, 2020 and was issued on January 31, 2020 .

d. The applicant did not dispute the OCL Report until October 7, 2020 long after the deadline had passed. The Dispute Notice was delivered after it had been confirmed that the OCL investigator would be called to testify at trial.

e. The OCL responded on October 23, 2020 that it would not respond to the applicant’s dispute and that a new court order would be required for the court to consider the applicant’s request for further OCL involvement.

f. The father sought and was granted leave to bring an urgent schooling motion on September 1, 2020 and the motion was heard on September 8, 2020 before Faieta J. who ordered the children to attend for in-person learning;

g. The parents attended a Trial Management Conference on December 4, 2020 and an Exit Trial Management Conference on March 8, 2021 before Hood J. at which this trial was scheduled and confirmed and it was confirmed that neither party would be calling the children as witnesses and that the father would be calling the OCL investigator as a witness.

h. Prior to the commencement of the trial, no motion had been brought asking the court to request an updated report or voice of the child report from the OCL, although this is one outcome that the applicant has suggested in her closing submissions is available to the court to order.

Relief Sought

[34] This trial is the forum in which the applicant seeks to change the existing shared parenting regime. Specifically, the applicant seeks the following changes:

a. With respect to decision making (which the parents agree only needs to be decided by the court in respect of health and education because they agree on matters of religion):

i. Final decision making with regards to significant matters concerning JECP born [...], 2008 and JOCP born [...], 2015 (collectively, the “children” and individually each the “child”), with the obligation to consult and allow the respondent the opportunity to provide input prior to any final decision being made;

ii. Final decision making regarding the choice of a counsellor for either or both children, if counselling is considered advisable or recommended by the children’s family doctor and if the parents cannot agree on the choice of counsellor;

iii. Sole authority and responsibility for obtaining and renewing all government and identification documents for the children, without the necessity of any consent or signature from the respondent if he fails to provide those within seven days of request, with copies of said documents to be provided to the respondent upon them being received or obtained by the applicant;

b. With respect to the regular parenting time/residential schedule:

i. The primary residence of the children to be with the applicant;

ii. Alternating weekends (Friday after school until Monday school drop-off, expanded in the event of Friday or Monday school holidays) and Tuesday mid-week overnights with the respondent, with flexibility for additional mid-weeks visits in accordance with the children’s wishes and the respondent’s availability;

c. With respect to the holiday/vacation schedule:

i. Up to two consecutive weeks of uninterrupted summer holiday vacation time for each parent, to be co-ordinated in advance, preferably by the end of March of each year, with each parent having priority for choice of weeks in alternating years;

ii. One week with each parent over the Christmas holidays, alternating first and second weeks year by year;

iii. No special provisions for March break unless one parent is planning to travel with the children, which shall be co-ordinated in advance, with each parent having priority for travel during March break in alternating years;

d. Ancillary relief, to allow the parents to return to the court to seek adjustments to the Table child support and proportionate s. 7 expenses, after disclosure by the respondent of financial documentation previously requested by the applicant[^6]; and

e. A specific direction for JECP’s 2021 dental/orthodontic expenses to be shared as a s. 7 expense, with the applicant’s partner’s insurance benefits to be credited towards the applicant’s share.

[35] The respondent is content for the existing shared parenting regime to remain in place and does not seek any changes to it. He does, however, seek affirmative orders as follows:

a. With respect to decision making:

i. joint decision making on all matters or,

ii. in the alternative, major decisions to be made after an opportunity for input from both parents AND in consultation with an expert such as a doctor, school teacher or principal, where applicable and, in the absence of agreement or in time-sensitive situations, the respondent shall have final decision making pertaining to matters of education and the applicant shall have final decision making with resect to matters of health, with joint decision-making pertaining to matters of religion; and

iii. if counselling is needed for either child, each party shall provide their perspective and they shall mutually agree on a counsellor. No counselling will be arranged by one parent without the agreement of the other parent. Neither party shall unreasonably delay the process and must, within 7 days of a proposed counsellor either provide their consent or propose an alternative counsellor;

iv. the applicant will have the responsibility for obtaining and renewing all government and identification documents for the children, and the respondent shall provide his consent and signatures for any renewals as needed and within one week of being asked, and will be provided with copies of said documents upon them being received or obtained by the applicant;

b. With respect to the regular parenting time/residential schedule:

i. Week-about or, in the alternative, a 2-2-5 parenting schedule with alternating weekends (Friday after school to Monday morning) with each parent;

c. With respect to the holiday/vacation time schedule:

i. Up to two consecutive weeks of uninterrupted summer holiday vacation time for each parent, to be co-ordinated in advance, preferably by the end of March of each year, with each parent having priority for choice of weeks in alternating years;

ii. During the summer, each parent will be responsible for arranging activities/camps during their designated summer weeks;

iii. The regular parenting time/residential schedule will apply to all school holidays, including Christmas break, with the exception of Christmas to Boxing Day and New Year’s which will be shared times during which the children will spend equal time with both parents with mid-day transitions;

d. Ancillary relief for the dismissal of the balance of the application in respect of matters not addressed in the trial judgment or in any of the previous orders made in this action.

Summary of Outcome

[36] On the primary issue, I do not find it to be in the best interests of the children for their residential parenting schedule to be changed at this time. The week-about schedule has been in place for almost 3.5 years and it affords them equal time with both parents, which I consider to be in their best interests. Some opportunity for further adjustments based on inputs from the children regarding their views and preferences will be provided for, to be ascertained and communicated to the parents through independent third party professionals, subject to the prior consent of the children.

[37] With some exceptions for years in which travel is planned, the children will divide their time over Christmas/Boxing Day and New Year’s so that time is spent with each parent on those particular holidays.

[38] The historical issues between the parents, as they relate to finances, have mostly subsided. The one-off disputes cannot be entirely eliminated and some conflict around joint decision making is bound to occur, but that is not a reason to disrupt the shared parenting and decision-making regime that has been in place since February 2018. This regime is more in line with the best interests of the children than either of the alternatives of parallel decision making (with one parent responsible for health and the other education) or putting all decisions in the mother’s hands and taking the responsibility away from the father entirely. Thus, the joint decision-making regime shall remain in place. The parents are reminded that it is their duty to try to keep the children out of and away from their conflict, to the extent possible.

[39] The mother will have the ultimate authority in respect of the children’s government and other legal documents, after providing the father with a week in which to review and respond to provide his consent and signature, failing which the mother will be at liberty to proceed without his input.

Issues to be Decided

[40] I must decide what parenting regime is in the best interests of the children, specifically concerning:

a. Decision making with respect to the children’s health, education, counselling and legal documentation;

b. Parenting time:

i. their residential schedule;

ii. Christmas/New Year’s holiday schedule;

iii. Summer holiday schedule; and

c. Any ancillary relief that flows from the above determinations.

Analytical Framework: The Best Interests of the Children is the Paramount Consideration

[41] The Supreme Court of Canada’s decision in Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at p. 117, has weathered the test of time and is still the best guidance on how the courts should approach disputes about parenting time and decision making: "the ‘best interests of the child’ test is the only test… [P]arental preferences and ‘rights’ play no role." The Divorce Act amendments have codified these guiding principles.

[42] Section 16(1) of the amended Divorce Act affirms that the court shall take into consideration only the best interests of the child in making a parenting or a contact order. The importance of analyzing the best interests of the children from the child's perspective, and not from the perspective of either parent and keeping the focus at all times on the child, not on the needs or interests of the parents, was reaffirmed recently in McBennett v. Danis, 2021 ONSC 3610, at para. 92, and M.H. v. L.K., 2021 ONSC 560, at para. 24, citing Young as the authority.

[43] Section 16(2) of the amended Divorce Act requires the court, when considering the “best interests of the child” factors, to give primary consideration to the child's physical, emotional, and psychological safety, security and well-being. Section 16(3) directs the court to consider, in determining the best interests of the child, all factors related to the circumstances of the child, including:

a. the child's needs, given the child's age and stage of development, such as the child's need for stability;

b. the nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;

c. each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse;

d. the history of care of the child;

e. the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;

f. the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

g. any plans for the child's care;

h. the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

i. the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

j. any family violence and its impact on, among other things,

i. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

ii. the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

k. any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

See also, Children's Law Reform Act, R.S.O. 1990, c. C.12, ss. 24(1)-(3) (“CLRA”).

The Evidence About The Best Interests of the Children

[44] There are various sources from which evidence about the best interests of the children can be derived in this case.

The Report of the Office of the Children’s Lawyer

The OCL Report

[45] Both parents consented to an order requesting an OCL investigation and assessment. Eva Casino was assigned by the OCL to investigate the custody and access dispute and make recommendations in this case. She holds a Master’s in social work, has worked as a clinician for over 35 years and has, during that time, also worked as an OCL investigator for 19½ years. She asked for, received, reviewed and considered information and documentation from the parents and from third party collaterals such as the police, the CAS and a social worker who had met with JECP. She interviewed the applicant three times, the respondent one time, JECP two times and JOCP once. She also observed the children in both parents’ homes.

[46] The mother raised the following concerns about the father’s parenting with the OCL, none of which were validated in the OCL’s investigation:

a. Concerns related to neglect and the children's physical and emotional safety with their father, including a complaint that he left the children with strangers, gave JOCP inadequate lunches, and tried to destroy the children's belief in the Easter Bunny and Santa, which date back many years and were not consistent with the children’s current circumstances.

b. Concerns that the father prevented the children from communicating with her, which was addressed by JOCP who said she is able to call her mother when she wants.

c. Concerns that JOCP's grades suffered because the father was not adequately attending to her homework and because she had been exposed to conflict perpetrated by the father. However, JOCP explained that her grades suffered due to several factors, being: 1) the conflict between her parents, which the OCL investigator found both parents to be responsible for; 2) being bullied at school; 3) having five different teachers; and 4) being worried about her mother who was "down", especially during her pregnancy.

d. Concerns that the father brought JOCP to a walk-in clinic where he was inappropriately treated, and that the father did not provide adequate care, which were not corroborated by the family doctor who later saw JOCP.

e. Concerns the children are not comfortable with their father, that they need their mother to console them, and that they are afraid to bring up concerns with their father, which were not corroborated by the children themselves.

[47] The OCL Report was completed on January 29, 2020. Both children reported, and were observed, to have a close relationship with both parents. The OCL Report recommended that the parties continue to exercise joint custody/decision making over the children and that the children continue to reside in an equal and shared week-about parenting schedule, among other things. A concern was flagged that, if sole decision making rested with the mother, there would be a risk that the father would not be included, given the mother’s strong negative feelings about him and his partner and strong beliefs that she is better able to meet the children's needs.

[48] Ms. Casino also testified that she was aware when she made her recommendations of the historic texts about the financial strain that the applicant was under in 2017 and 2018 and the respondent’s role in that, but weighted the shared parenting regime and current financial circumstances at the time she prepared the OCL Report more heavily. In cross-examination she testified that her recommendations were made to reduce stress for the children and look at what was in their best interests, considering lots of different things such as attachment, connection, reducing stress, communication, etc.

The Applicant’s Dispute Notice and Challenges to the OCL Report at Trial

[49] For ten months after receipt of the OCL Report, the applicant did not serve or file a Notice of Dispute. She did not do so until October 15, 2020. It was not accepted by the OCL. Eva Casino was, however, asked about its contents and the concerns raised in the Notice of Dispute when she was cross-examined at trial.

[50] The applicant argues that the OCL Report is outdated and its recommendations were based on what was said at the time without any independent verification or corroboration and without the full historical context, which the court now has. The applicant argues that the court is thus better positioned to make a determination of what is in the best interests of the children in this case. The applicant is also critical of the OCL investigator for not digging deeper into JECP’s comments at the time that she did not like her father’s questioning of her and that her father did not reciprocate the applicant’s efforts to be friendly. The applicant contends that the OCL investigation did not dig deep enough and that a more thorough inquiry ought to have exposed that the children were trying to be balanced and not to favour one or the other parent, but that their true wish was to live with the applicant and have liberal parenting time with the respondent.

[51] In Maharaj, at paras. 67, 70 and 147, the court accepted a s. 112 Investigation and Report prepared by the OCL, notwithstanding that the Report was prepared in January 2015 and the trial was held in May 2016. The Court found that the clinician was highly qualified, her methodology was appropriate, and that she responded thoughtfully and professionally in her testimony and in response to her cross examination. In accepting her recommendations the court held as follows, at paras. 67 and 147:

Usually, courts give great weight to evidence and reports from the CAS and the OCL. These institutions employ people who are highly trained in determining the views of children, interviewing adults, and conducting impartial assessments to protect children. The reports are not binding on the Court, but a report that provides extensive investigation with first-hand information deserves serious consideration.

Even though the OCL's recommendations are almost two years old, they are still valid. Mr. Wilfred-Jacob's conduct that gave rise to those recommendations in January, 2015 continued after that date to the present, unabated. In my view, the Jayden's best interests require that the OCL's recommendations be implemented immediately as outlined at the end of these reasons.

[52] I am similarly satisfied in this case that the OCL Report was prepared on the basis of a thorough, professional, balanced and child-focussed investigation and with the benefit of the relevant history and context. Ms. Casino provided reasonable responses to the challenges put to her in cross-examination that underlie the applicant’s Dispute Notice regarding matters that she allegedly overlooked, that were allegedly not sufficiently investigated, or that may not have been recorded in her notes. Ms. Casino answered these challenges during her testimony in a forthright manner and her explanations were reasonable. There was no glaring oversight or error in her investigation. I do not find any of the applicant’s challenges to undermine or cause me to question the objectivity or reliability of the recommendations contained in the OCL Report at the time it was prepared.

[53] I accept the findings and recommendations contained in the OCL Report to be reliable and credible and deserving of serious consideration. Many have already been adopted by the parents. However, ultimately the court has to decide what is in the best interests of the children. In this case, there is a concern that views and preferences may have been expressed by the children, by their words and/or conduct since the OCL Report was released, that indicate a preference that is different than what was indicated to Ms. Casino at the time of her investigation. That raises an additional question as to whether a further investigation of the children’s views and preferences is warranted, or whether that should lead the court to place less weight on the OCL Report and the recommendations contained in it when making the determination today about whether the shared parenting regime and joint decision making are still in the best interests of the children.

[54] Based on the history of disputes and dealings between the parents up to the date of the OCL Report, Ms. Casino testified that she would not change anything in there for the period she was involved. She was reluctant to comment on or speculate about incidents that had post-dated the OCL Report and whether they would cause her to change her recommendations. However, when pressed in cross-examination, Ms. Casino testified that, if the recent incident of JECP walking from her father’s house to her mother’s house had occurred prior to her investigation and she had been made aware of it, it would have raised a lot of questions. She further testified that, if she was doing another investigation and report, she would pursue this matter to get a better understanding of it.

Updating the OCL Report

[55] Ms. Casino testified that it is rare for the OCL to be asked to conduct a further investigation and update a report. If asked to do so, they would be looking to identify errors or significant information that would change the original recommendations. When asked by the court if she would be comfortable with the court relying on her report now, Ms. Casino responded that kids change their minds and she would be interested in why and what the influence was. Ms. Casino testified that, based on her interactions with JECP during the course of her investigation, she was concerned that JECP was being influenced by her mother, and that JECP would still be susceptible to that influence today.

[56] The respondent argues that there is only evidence properly before the court about two incidents arising after the OCL Report that might have some bearing on its conclusions. The respondent contends that the court is best situated to assess that evidence and should conclude that those incidents are context specific and not reflective of a broader change of the minds of the children that they no longer want to live equally with both parents.

a. The more recent of these incidents involved JECP leaving the respondent’s house and walking to the applicant’s house shortly before trial which the respondent attributes to the stress and tension in the lead up to the trial and some partial information that JECP received and became upset about.

b. The other involved JECP’s refusal to leave her mother’s house and return to her father’s house for a period of months in the spring and summer of 2020, after an argument the resulted in her father taking away her phone privileges and a dispute that ensued when JECP asked her mother to come and pick her up. The respondent says that JECP’s refusal to return to his house after this incident was the result of the influence of the applicant because, as soon as Justice Kristjanson indicated that the applicant was not doing enough to encourage JECP to return to her father’s house and granted him leave to bring a motion for contempt, JECP’s mind was changed and the shared parenting arrangement resumed.

[57] The other evidence that the applicant relies upon, contained in text messages from JECP to both her parents, is objected to on grounds of hearsay by the respondent. These were objected to when they were referred to in testimony and the respondent maintains that they do not meet any of the hearsay exceptions. These text messages are discussed in more detail in the next section of these reasons.

[58] Neither party sought as part of their primary relief that the court request another OCL investigation and report. The applicant is asking the court to disregard or give little weight to the OCL Report because it is outdated and does not reflect recent events, whereas the respondent is asking the court to consider the OCL Report, along with the other evidence, in coming to its determination of what is in the best interests of the children.

[59] I asked the parents to consider and make submissions about the possibility of asking the OCL to conduct a further assessment and review, after the trial.[^7] This is not unheard of. For example, in Fias v. Souto, 2020 ONSC 6346, after a trial at which the OCL had tendered a report and assessment, Kraft J. ordered the OCL to remain involved and ordered a six-month review by the OCL to monitor the behavioural adjustments to the changed parenting schedule.

[60] The applicant suggests that it remains open to the court to request the further involvement of the OCL, if so advised. The respondent is very much opposed to any suggestion that the OCL be asked to remain involved or to conduct any sort of follow up or review. He contends that the applicant had every opportunity to challenge the OCL Report, through the Dispute Notice process (if it had been filed on time) but also through cross-examination at trial. The respondent did not lead evidence at trial with the expectation that there was any prospect of a further OCL investigation or report since it was not part of the relief that the applicant was seeking, and he contends that the trial would have been conducted differently if it had been.

[61] The respondent opposes a further investigation and report on various other grounds. Procedurally, as noted above, it is opposed on the basis that an updated or supplementary OCL report ought to have been pursued by the applicant more vigorously before trial, and not just in the few months leading up to the trial. If she had filed her Dispute Notice in a timely manner, the OCL may have even reviewed certain matters in that context. The respondent also suggests that, given JECP’s age in particular (but eventually JOCP’s as well), the children’s views and preferences will be made known “organically”. I take this to mean their preferences will be made known through normal course interactions between the children and the parents, which will require the parents to adapt to meet the children’s demands, whether they be for school, their social lives, their extra-curricular activities or when they get to an age and stage when they “talk with their feet” and make their views and preferences known in that way.

[62] The applicant argues that JECP has already arrived at that age and stage and made her views known by her actions (even if her text messages are not considered). If the respondent will not accept those views and preferences as having been objectively given, then the OCL can and should be asked to objectively re-evaluate the situation. The applicant further counters that the respondent was asked, and refused to consent, to the applicant’s efforts to re-engage the OCL for an updated assessment and report before the trial, and it does not now lie in the respondent’s mouth to complain that this was not undertaken before trial.

[63] In Closner v. Closner, 2019 ONSC 5708, at paras. 12-16, Akbarali J. held that an OCL updated report should not be ordered if the court is in a position to reasonably decide the issues without it. In that case, Akbarali J. declined to order an update for an assessment that was two years old as she found that no material change had occurred to warrant the intrusion on the child's life that would accompany an updated report. In doing so, Akbarali J. found there was sufficient evidence before the trial judge to make all necessary parenting determinations. Similarly, in Zapora v. Zapora, 1991 CarswellOnt 3490 (Gen. Div.), at para. 20, the court refused to order an updated assessment in respect of a report that was a year and a half old, finding that the mere passage of time does not of itself mean that an update should be provided. The report available to the court was found to have provided sufficient information and insight to assist with determinations of custody and access.

[64] To order an updated assessment over the objection of one of the parents would require "significant developments" since the original assessment was completed: Closner, at paras. 12, 16. In the absence of such, where the children’s preferences are clearly and persuasively set out in an OCL report, even if two years old, it may be relied upon for that purpose: Reid v. Catalano, 2008 CanLII 9379 (Ont. S.C.), at para. 82.

[65] The respondent argues that, as in Closner and Zapora, the court is in a position to make all necessary parenting determinations, having heard two weeks of evidence from both parents and with the s. 112 OCL Report and the viva voce evidence of the OCL clinician, Ms. Casino, and with the benefit of detailed testimony about the shared parenting regime that has been in place for 3.5 years. The respondent contends that there is no persuasive or compelling evidence that there has been a change in the children’s views and preferences since the OCL interviews and assessments 1.5 years ago, and that there is a concern about JECP having been influenced by her mother since then if she were to express a change in her stated wishes, which at the time were to remain residing equally with both parents.

[66] Ultimately, it is in the court’s discretion to determine whether asking the OCL to continue to be involved and to conduct a subsequent assessment and review would be appropriate and in the best interests of the children in this case. This, in turn, depends on whether the court is able to reasonably decide the decision-making authority and regular and holiday residential schedule arrangements in the children's best interests based on the existing s. 112 OCL Report and the trial evidence.

[67] To order a further OCL investigation at this stage, I would need to be satisfied that the trial evidence established some reasonable probability that there has been a material change in the views and preferences of the children, from those expressed to Ms. Casino at the time of her interviews, to warrant the intrusion in the children’s lives that would accompany an updated report at this time. I do not consider such a material change to have been established on the evidentiary record before me.

[68] JECP told Ms. Casino during the original interviews that, although she is content with the equal parenting arrangement, she sometimes wants to spend longer with one or the other parent. That is not materially different from her having indicated, by her actions, a preference on two occasions since then: by staying with her mother in the spring/summer of 2020 and by leaving her father’s house and walking to her mother’s house in March of 2021.

[69] The court is in a position, with the OCL Report, the testimony of the OCL investigator and the testimony of the parents, their partners, their sisters and additional friends and relatives on the applicant’s side, to reasonably decide the issues in this case without requesting an updated OCL assessment and report. I have determined that it is not necessary or appropriate to do so, although I have allowed for the opportunity for the children’s views and preferences to be elicited and considered by their parents in future, through independent counsellors or other third party professionals (discussed below).

The Views and Preferences of the Children

[70] The views and preferences of the children are among the factors that I am to consider in determining whether the shared parenting regime is in the best interests of the children. There are various sources of potential evidence about the views and preferences of the children regarding the shared parenting regime. While not the only factor to consider in assessing the best interests of the children, this was a factor that particular emphasis was placed on in this case. The children do not get to decide who they will live with or their parenting schedule, but the amended Divorce Act, and the CLRA both recognize the importance of allowing the children to be heard, even if their voices (views and preferences) are not determinative of the question of what is in their best interests.

Statements Made to the OCL Investigator

[71] Before considering the admissibility for their truth and weight of the text messages that the respondent objects to, I will first review the statements made by JECP to Ms. Casino that were recorded and relied upon in the OCL Report about the shared parenting regime in place (which the respondent does not object to):

a. she would want to talk with both of her parents if she had a big concern.

b. she enjoys spending a week with each parent (under the then current parenting regime).[^8]

c. some days she wants to spend more time with one or the other parent.

d. she would like to see both parents on Christmas.[^9]

[72] JECP told the OCL investigator both that she was content at the time she was interviewed (between November 2019 and January 2020) with the shared parenting regime, but also that there are times when she would like to spend more time with one or the other parent. In other words, that she might want to have some say or control over how long she stays with each parent.

[73] Ms. Casino testified that JECP’s desire to sometimes spend more time with one or the other parent was consistent with pre-teen preferences and that it did not surprise her that JECP would want more flexibility. While she did not explore what more flexibility might look like for JECP, in response to questions from the court, Ms. Casino explained that, in general, what she means by more flexibility is that a teenager might sometimes want to spend time at a friend’s or at one parent’s or another’s, or might sometimes want to be with, or not with, other siblings, and/or to be more independent. In particular, Ms. Casino’s experience is that teenagers are often very influenced by friends near one or the other parent’s house.

[74] This desire for more flexibility did not cause Ms. Casino to deviate from her recommendation to maintain the shared parenting regime at the time the OCL Report was prepared, when JECP was 11 years old. Ms. Casino agreed during cross-examination that, if JECP had said to her during the investigation that she preferred to have more time with her mother, it would have been a factor to look into and explore further, but she would also have to look at the mother’s potential influence over JECP as she was quite concerned about that.

Expressions by Words or Conduct

[75] The applicant seeks to rely upon statements made by JECP to her mother after the OCL Report, that she wanted to be with her mother when she was supposed to be at her father’s house:

a. In August 2019 after witnessing an altercation between the respondent and the applicant on the driveway of the respondent’s house, JECP expressed a desire to stay with her mother.

b. After she had an altercation with the respondent on May 1, 2020 JECP texted the mother: “I need to get out of this house as soon as possible. Papi said that you can pick me up.” When her father did not agree to let her leave, she sent a further text to her mother: “Mommy can you just pick me up in secret. Plz. I jus want to leave Papi’s house ASAP.” The next day, on May 2, 2020 JECP wrote to her mother: “I’m still plain on escape and going to ur house.”

c. Once JECP was at her mother’s, she refused to return to the week about arrangement until a contempt motion was threatened against her the applicant, after which the applicant forced JECP to return to her father’s house in August 2020. There are corroborating texts between JECP and her father that she asked him if she could leave and go to her mother’s, the authenticity of which he confirmed in his testimony.

d. On Monday March 22, 2021, JECP texted her mother asking to be picked up from her father’s, stating: “I just don’t want to be here”. Later she wrote: “I just talked to Papi for like an hour and he still won’t let me. I even walked out of the house. I just want to go to ur house but he won’t let me. He said that I don’t have good reasons.”

e. The following day, JECP texted: “[C] left the house with [JOCP] to go pick up the kids. And I left too. I am walking to ur house ok.” The uncontroverted testimony is that JECP thereafter left the respondent’s house unbeknownst to any of her parents or step-parents, and walked by herself for approximately an hour to the applicant’s house.

[76] Independent of these text messages, the father acknowledged that he has had discussions with JECP about why she wants to leave and go to her mother’s house. He further acknowledged that JECP is sometimes moody and leaves his house to be by herself. The respondent’s partner testified that JECP has voiced concern that she feels that she is under surveillance or being monitored while at their house.

[77] The mother further relies on text messages from JECP in which she says that JOCP asks to go back to his mother’s and that he cries when he is at his father’s. Independent of these text messages, the applicant’s partner testified about an incident when JOCP did not want to leave the car when being dropped off at his father’s. The mother testified to receiving calls from JOCP’s school that he wanted her to come and pick him up during his week with his father.

[78] Children's evidence may be admitted as hearsay only if it is necessary and reliable. Necessity is met when it would be inappropriate to call the child as a witness. The reliability test is met when a) the evidence is not objected to, b) the child has said the same thing to more than one lay witness, or c) has made the statements to someone who has skill in interviewing children. The weight given to statements depends on the child's mental and physical age, the circumstances of taking the statement, the risk that the child was influenced or manipulated, the risk that the recording or document was edited or manipulated, and the desire of the child to please the parent taking or requesting the statement. Where influence is likely, the statements or recordings should be given little weight: Maharaj, at paras. 58-60.

[79] The respondent relies upon these principles to support his contention that, while statements made by JECP to Ms. Casino during her investigation are admissible hearsay since she is someone with skill in interviewing children, the text messages and other hearsay statements made by JECP to her mother (or even to him) are inadmissible hearsay and cannot be considered for the truth of their contents, even if they are relevant and admissible to explain the mother’s actions and reactions.

[80] The respondent argues that, even if the “necessity” requirement of the traditional hearsay exception analysis is met because both parents agree that JECP should not be called to testify herself about any texts sent or statements made to her mother, the “reliability” of these statements as true reflections of JECP’s views and preferences cannot be sufficiently established under the circumstances in which they were made. He argues that each of the incidents in which these statements were made was precipitated by JECP having been improperly exposed to adult issues and/or influenced by her mother: witnessing the end of the altercation between her parents on her father’s driveway in August 2019, overhearing an argument between her parents about the school counsellor in May 2020, overhearing or being told about communications with potential trial witnesses in March of 2021.

[81] The respondent also points to the concerns expressed by Ms. Casino about the mother’s influence over JECP and the need for a skilled professional to ascertain her views and preferences and to assess whether they are the product of such influence. In response to questions from the court about recent text messages and statements said to have come from JECP about her desire to live full time with her mother, Ms. Casino testified that to assess what JECP’s views and preferences are today, she would question both parents about the specific circumstances surrounding the statements and meet with JECP multiple times to try to ascertain what has come up for her that was leading her to this change of mind.

[82] The respondent maintains that the only admissible and reliable evidence before the court about the children’s views and preferences is that reflected in the OCL Report, affirmed by the testimony of Ms. Casino, that both children expressed the desire to spend equal time with both parents.

[83] Having regard to the circumstances that precipitated the statements made by JECP in text messages and otherwise, the concerns expressed by Ms. Casino about the potential for the mother to influence JECP and JECP’s stated desire to protect and make her mother feel better, I am not satisfied of the reliability of these text messages as fully expressed views and preferences of JECP or JOCP about the shared parenting regime now and going forward. I am therefore not prepared to admit JECP’s text messages into evidence for the truth of their contents.

[84] That said, there is other admissible evidence of JECP’s conduct, in having walked from her father’s house to her mother’s house in March 2021 and in refusing to leave her mother’s house and return to her father’s house in the spring/summer of 2020, and of JOCP not wanting to leave the car to go to his father’s and of JOCP asking the school to call his mother to pick him up during a week he was with his father. The respondent also acknowledged that JOCP asked to be with his mother when he had an infection (and that he eventually agreed to let JOCP go to his mother’s even though it was JOCP’s week with the respondent).

[85] From this admissible evidence I can infer, and do find, that there are times when the children would prefer to be at one parent’s house or the other’s for a longer period of time. The examples presented by the mother suggest a preference to be with her at a particular point in time, but that is not sufficient evidence from which to infer that the children want to change the shared parenting regime going forward. It also does not foreclose the possibility that the children may also at times have a preference to spend longer times at their father’s house as well.

[86] The children are well-adjusted and have two wonderful homes to live in. A parenting schedule and structure are important for everyone for planning purposes, but JECP, in particular, is mature and old enough now that she should be afforded the independence and flexibility of having her views and preferences heard and considered. When JOCP becomes a teenager, he too should be afforded the same opportunity. I have addressed this later in these reasons.

[87] I would also take this opportunity to acknowledge that, although I have not admitted JECP’s text messages to her mother for the truth of their contents, they have been admitted as part of the applicant’s explanation for why she felt such a strong compulsion to pursue the change in the existing shared parenting regime through to this trial. This is a complicated dynamic. I do not question the genuineness of the mother’s instinct and desire to try to address a situation that her daughter has expressed displeasure with, through words and conduct, especially because the situation was one that the mother believes was created out of her own desperation back in 2018. While this context is important, it does not diminish the concern that there could be many reasons for JECP to have sent the texts at those moments in time, such that they may not reflect her views and preferences for a permanent change in the parenting time schedule. I have ruled that those views and preferences cannot be reliably ascertained or inferred from these texts.

The Applicant’s Request for the Court to Interview JECP

[88] The applicant urged the court from the outset of the trial to exercise its jurisdiction to interview JECP (aged 13) to ascertain certain factual information and her views and preferences regarding the primary residency, parenting time and holiday/vacation schedules. The respondent opposed this. At the request of the court at the outset of the trial, both parents provided written statements of law and submissions on this point during the first week of the trial.

[89] The applicant pointed to various incidents after the OCL assessment and Report that are suggested to be indications of JECP’s desire to live primarily with the applicant. Two involved JECP refusing to return to, or leaving, the respondent’s home on days when she was supposed to be there. Between May and September 2020, JECP expressed to both parents that she did not want to live week-about with the respondent and preferred to visit him on weekends and sometimes during the week, while living primarily with the applicant. Then, even after the court determined that the week-about schedule had to be adhered to pending the trial or other court order, JECP decided to leave the respondent’s home on a day that she was supposed to be there, and walk to the applicant’s home approximately 10 km away, in March of 2021.

[90] The respondent argues that smaller incidents of disagreements are typical teenager/parent tensions and that the two specific incidents involving JECP refusing to return to, or leaving, his house have to be considered with caution given the propensity of the applicant to involve JECP in the litigation and adult issues and to influence her behaviour (which was observed and recorded in the OCL Report).

[91] Both sides presented caselaw said to support their respective positions. The applicant’s mid-trial submissions primarily dealt with the potential relevance of a child’s wishes in the court’s assessment of the best interests of the child under s. 16 of the Divorce Act. Although neither party wished to call JECP to testify at the trial and involve her in that way, the applicant advocated that JECP deserves to have her voice heard and that the OCL Report did not zero in on that specifically, but is also outdated (the interviews having taken place in November and December 2019). It was argued that, as a consequence of the respondent’s unwillingness to consent to an updated OCL assessment and report before trial, the court should interview JECP directly to ascertain her wishes and ensure that her voice is heard. My understanding is that the court’s jurisdiction to do this, if so inclined, is derived from s. 64 of the CLRA and article 12 of the Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3, art. 12, (entered into force 2 September 1990).

[92] The respondent’s mid-trial submissions argued that a judicial interview would be inappropriate in a situation like this where there had already been a s. 112 assessment and report by the OCL, especially where that report indicated that the applicant had been negatively influencing the children against the respondent and informing them about issues in the litigation. These are the sorts of circumstances that would call into question the reliability of any information obtained by the judge from the child: R.A.L. v. R.D.R., 2006 ABQB 835, 408 A.R. 189, at paras. 24, 25 and 28; Maharaj, at para. 58. Essentially, the respondent argued that a judicial interview of a child in chambers was a recourse of last resort “…where other methods of determining the child’s preferences (such as assessments) are unavailable”: Stefureak v. Chambers (2004), 2004 CanLII 34521 (ON SC), 6 R.F.L. (6th) 212 (Ont. S.C.), at paras. 62, 69 and 70.

[93] I advised at the conclusion of the trial that I would not be acceding to the request or suggestion of the applicant that I interview JECP about her views and preferences. I indicated at that time that I would elaborate upon my reasons for this decision, which included consideration of the following factors:

a. The best expression of a child’s views and preferences should be elicited through and by trained professionals: see Maharaj, at para. 62, citing Woodhouse v. Woodhouse (1996), 1996 CanLII 902 (ON CA), 29 O.R. (3d) 417 (C.A.);

b. Judges have varying degrees of personal experience and abilities to conduct an interview of a child with the necessary care, caution and skill; while I have some experience and the best of intentions, this is not an area that I, or most judges, are trained in. Clinical therapists with training as a social worker, psychologist or psychiatrist, have particular expertise in the manner in which to interview children. Having that specialized knowledge and training is important when dealing with a child who is not known to the person conducting the interview, whether it be a judge or a professional;

c. The OCL Report in this case provides information about JECP’s views and preferences at the time of her interviews in November and December 2019, with the OCL and another counsellor around the same time;

d. Although there may be a recognition of an increased need for judicial interviews, as was forecast by the Advocates Society in its Guidelines for Judicial Interviews and Meetings with Children in Custody & Access Cases in Ontario (2014), 36 R.F.L. (7th) 489 (the “Guidelines”), this has not yet become the norm or a common occurrence or practice in the Ontario Superior Court in Toronto;

e. The Guidelines, among other things, confirm, at paras. 22 and 16, that concerns about due process arise if the judicial interview is being requested for the first time at the trial, as occurred in this case (one business day before the commencement of the trial);

f. A single interview may not be sufficient to objectively and reliably ascertain JECP’s views and preferences. Usually these are presented through evaluation reports that are prepared based on a series of meetings or interviews and other contextual evidence: see Nicholas Bala et al. “Children’s Voices in Family Court: Guidelines for Judges Meeting Children”, (2013) 47 Fam. L.Q. 3; see also F.S. v. T.W.S., 2019 YKSC 27, at para. 13. This is consistent with the trial testimony of the OCL assessor, Eva Casino.

g. Both parents recognize that it would not be in JECP’s best interests to involve her as a witness at the trial. I have similar reservations about the negative impact and pressure that she would feel if she was asked to meet with me and tell me her views and preferences. She is of an age and maturity that she would no doubt appreciate that what she said to me might have some influence on the outcome of the trial. Being interviewed by a judge can be very intimidating and can leave long-lasting impressions on a child. A child might feel tremendous guilt if he or she expressed a preference to live with one parent over the other. That is an enormous burden to place on a 13-year child. Importantly, there is no indication that she has asked to be interviewed or to express her views and preferences to the court at this time; and

h. Given the current pandemic situation, the ability to conduct this interview might be impeded because it likely could not take place in person. A remote interview might require JECP to be at one of her parent’s houses, if it could not be arranged to take place at school, and that would no doubt give rise to concerns of the other parent. A remote interview would further impede my ability to objectively and reliably ascertain JECP’s views and preferences.

[94] Having considered these factors and the submissions of the parents, I concluded that a judicial interview would not be a prudent course of action or ultimately helpful in resolving the issues in this case and declined to conduct one. The issues in this case will be decided based on the evidence presented at trial.

Analysis of Factors to Consider in the Determination of the Best Interests of the Children

[95] The factors that the court is to consider in determining what is in the best interests of the children in a given case are clearly established and recently codified in s. 16(3) of the amended Divorce Act.

Historic Parenting Roles and the Care of the Children (s. 16(3)(d) of the Divorce Act)

[96] The historic parenting roles that each of the parents have played was a focus of the evidence and argument in this case. There has been a shared parenting arrangement in place since February 2018. Leaving aside for the moment the reasons for which it came into effect, and even though the mother was the primary parent before then, she had not been for over three years by the time of the trial. The mother claims to have continued to shoulder the lion’s share of the parenting responsibilities under the shared parenting regime, even though the father has enjoyed equal time with the children. She says she has always been the one to take the initiative to arrange for the children’s schooling and all doctor, dentist and counselling appointments, and that she is the one who would take time off work if the children were sick. The father counters that he is excluded from these responsibilities, or only informed about them at the last minute.

[97] In any event, there is no presumption in favour of the primary parent, whether one parent occupied that role before or after separation. The issue is what is in the best interests of the children and whether both parents can meet the children’s needs, even if in different ways. The Supreme Court of Canada in Gordon, at para. 44, confirmed that any presumption in favour of a primary parent would "impair the inquiry into the best interests of the child." Similarly, in Warcop v. Warcop (2009), 2009 CanLII 6423 (ON SC), 66 R.F.L. (6th) 438 (Ont. S.C.), at para. 85, Gray J. confirmed that a general presumption in favour of the child's primary caregiver threatens to "become a proxy for the now-discredited tender years doctrine."

[98] The respondent relies heavily on the case of Pereira v. Ramos, 2021 ONSC 1737, at paras. 21, 37 and 41, which has many similarities to this one. The father in that case had not been a primary caregiver prior to separation, but two years after separation the roles and responsibilities of the parents had changed and he wanted the opportunity to equally parent the children, and demonstrated to the court that he could meet the needs of the children. As in this case, the OCL had recommended shared parenting in Pereira and the mother objected to those recommendations, drawing on experiences and examples of the parenting roles pre-separation. The court observed as follows in that regard, at para. 37:

I am not going to comment on the disagreement between the parties or their opinions about how they divided the labour and child caregiving responsibilities during their relationship. I am further not going to comment on their grievances or perceptions of the other party. The reason for this is that is not useful to get bogged down in trying to resolve the parties’ different perceptions of the parenting roles prior to separation. It is more important to consider the current situation and how best to structure the parenting times to meet the children's best interests moving forward.

[99] To the extent that the history of the childcare responsibilities is relevant, the most recent history of the past few years is far more relevant than the historic parenting responsibilities during the marriage and immediately after separation. Of the list of factors that the court is to take into account when considering the best interests of the children under s. 16(3) of the Divorce Act, the history of the care of the children (s. 16(3)(d)) is only one factor among many. Since the shared parenting regime dominated that most recent history, the historic parenting roles and care for the children is a “neutral” factor in this case.

Other s. 16(3) Divorce Act Factors that are “Neutral” in this Case

[100] Many of the other s. 16(3) factors are also “neutral” as between each parent in this case.

(a) Section 16(3)(b) the nature and strength of the children’s relationship with each spouse, their siblings and grandparents and any other person who plays an important role in their lives:

[101] JECP and JOCP have strong relationships with both of their parents and they get along with their parents’ respective partners and the other children (half and step-siblings) in both households.

[102] The applicant suggests that she has a stronger emotional bond with the children and that she is their “psychological” parent, the one who they need when they are feeling ill or vulnerable and the one who they open up to. Although “the importance of preserving the child’s relationship with his or her psychological parent has long been recognized by this court…”, this is not something that can be readily measured or compared: Gordon, at para. 121, per L’Heureux-Dubé J. (concurring), citing others. There were also examples in the testimony at trial of the children opening up to their father and looking to him for emotional support, for example when JECP broke up with her boyfriend.

[103] The applicant’s assertion about her stronger parenting role, however well intentioned it may be, comes from a preconception that children need their mother more than their father and that the mother’s role in a child’s life is more important. The applicant’s partner shares her sentiment that the mother is the most important parent. It was identified in the OCL Report that the applicant was approaching the parenting time and decision making for the children with a sense of entitlement as their mother. Ms. Casino wrote: “Ms. [C] also presents with a sense of entitlement with respect to the children: that they need her more than their father and that she can meet their needs better than him.”

[104] While the applicant suggests that there is tension between the children and the respondent’s partner of concerns the partner has expressed in the presence of the children about the applicant calling the police and CAS, there was equally strong evidence of the partner’s active engagement with both children and of their willing participation in her science experiments and family games.

[105] The applicant also points to the close relationship the children share with their aunt, who is like a grandmother to them, in contrast with the absence of any evidence of a relationship with their paternal grandfather who has lived with them at their father’s house.

[106] While there may be slightly stronger ties overall between the children and the members of applicant’s household and extended family, the children have strong healthy relationships with both parents and with their step-parents and half and step-siblings. The presence of other children has been a positive influence in both households.

(b) Section 16(3)(c) each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse

[107] Both parents accuse each other of attempting to undermine the other’s relationship with the children by speaking to, or in ear shot, of the children about the other in a negative manner. The evidence indicates that they both have done so, and the OCL recommended that they both stop involving the children in adult matters (such as this litigation). They both argue that the other has continued to do so, and both testified to efforts that they have each taken to stop this from occurring in their presence/households.

[108] The mother testified about various examples of how she encouraged the father to remain involved in the children’s lives in the immediate aftermath of their break-up and encouraged JECP to talk things through with her father after they have had a disagreement and allowing her to take her pet rabbit to her father’s. The mother professes to be very much in favour of both children developing and maintaining a relationship with their father. Her partner confirmed this in his testimony.

[109] The father and his partner both testified to their efforts to ensure that the children speak to their mother when they want to (although the mother questions this, the complaints date back a number of years and have largely been alleviated by the phone that the mother purchased for JECP). They also both testified that they have made a concerted effort since the OCL Report not to discuss matters concerning the mother with or in the presence of the children.

[110] While some improvements have occurred since the OCL Report, it is clear that both parents still need to work to improve at this. However, neither can be said to have demonstrated a materially better or worse aptitude or willingness to do this relative to the other, such that it would impact the assessment of the best interests of the children.

[111] Both parents need to be more flexible about accommodating special events and plans in each other’s expanded families and around events that might be particularly meaningful to one or the other, such as the first day of school for the mother and planned extended family outings on Halloween for the father and his partner. Both also need to be receptive to the children’s wishes to see the other parent if they are ill or in need of that parent’s support, even if during a week that they are supposed to be with the other parent.

[112] The respondent argues that, if anything, it is the applicant who has not been supportive of him and not the other way around. He points to Kristjanson J.’s admonition in her July 30, 2020 endorsement in relation to JECP’s refusal to return to her father’s house between May and July 2020. That endorsement affirmed that the applicant had a responsibility to do more than just encourage JECP to return to her father’s in the summer of 2020 (with reference to the Court of Appeal’s decision in Godard v. Godard, 2015 ONCA 568, 65 R.F.L. (7th) 265, at paras. 28-30).

[113] As a parent, the mother had a positive obligation to do all that she reasonably could to ensure compliance by JECP with the shared parenting regime that had been affirmed by Kristjanson J.’s earlier endorsement, even if JECP was resisting it, and mere encouragement was not enough. However, no finding was made at that time about whether the mother had been doing enough or not (that having explicitly been left to be determined at a later date and no contempt motion was brought against her). In any event, this obligation is not directly aligned with the s. 16(3)(c) inquiry into whether the parents are willing to support the development and maintenance of the children’s relationship with the other parent. They both have demonstrated a willingness to do so in their own ways.

(c) Section 16(3)(f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage

[114] The parents are ad idem on the question of religion and religious upbringing and there is no evidence to indicate that this is a factor that would favour one or the other parent in this case. There was some evidence about learning Portuguese and whether it should be Brazilian or the European Portuguese language, but there is no evidence that either parent has undermined or interfered with the other’s efforts to impart cultural, linguistic, religious or spiritual teachings to the children during their own time, or that the teachings in the two households are in conflict.

(d) Section 16(3)(g) plans for the children’s care

[115] Both parents’ plans for the children include school, holidays, vacations and family time. At the moment, the father’s plans may involve some assistance from outside caregivers, whereas the mother’s plans may not because she is on maternity leave, but that could change as her newborn child gets older and if she decides to go back to work full or part-time. During their marriage, the children were regularly cared for by outside caregivers while both parents worked. Both have reasonable arrangements in place for the children’s care during school and holiday times.

(e) Section 16(3)(h) – the ability and willingness of the parents and their partners to care for and meet the needs of the children.

[116] Both parents are willing and able to care for the children. Both are also very fortunate to have found partners who are also not only willing and able, but who are committed, to creating an inclusive blended family in each home. The applicant has a list of historic complaints about the respondent’s lack of judgment or insight in parenting the children and putting their interests first. It is not the role of the court to run a tally of the good and bad parenting decisions that each parent has made over the years. The OCL found both parents to be able and willing to meet the needs of the children and, if anything, their ability and willingness to do so since the OCL Report improved by the time of the trial.

[117] There are two more recent incidents that the applicant points to, concerning the respondent’s conduct around JECP’s medical examination for her permanent residency status and JECP’s braces. These incidents are tied into broader issues about disclosure and s. 7 expenses that formed part of this litigation, although the net effect was that JECP had to attend twice for the same medical physical examination during the COVID-19 pandemic and her braces would have been delayed if the applicant and her partner had not covered the cost over and above what her partner’s insurance paid for.

[118] These incidents are consistent with earlier behaviours on the father’s part that put his “rights” and interests ahead of the children’s best interests, which in this case, practically and for JECP’s benefit, should have resulted in (i) the father paying for half of JECP’s previous physical examination so that he could use it to support his permanent residency application, rather than putting her through a second examination (at his full cost) even if he was upset that he had not been told about the first examination when it occurred, and (ii) the father contributing towards JECP’s braces, rather than leaving the applicant and her partner to pay for not only the insurance but also the entire uninsured cost, even if there was a legal dispute about whether he only had to pay for a share of the uninsured cost when the insurance cost was borne by the applicant.

[119] The applicant also ties this factor in with s. 16(2) of the Divorce Act and the paramountcy that it places on the children’s physical, emotional and psychological safety, security and well-being. She argues that the respondent’s conduct since separation has demonstrated a willingness on the respondent’s part to sacrifice the children’s safety, security and well-being for his “rights” his “week” and his control over decisions, with the result that the children were left with neighbours/landlords rather than returned to the applicant, JOCP was sent to a babysitter when he could have been with his mother (including after his surgery, when the respondent said that there was no difference between him being with his mother or the babysitter), and the children were drawn into concerns harboured by the father and his partner about interactions that might have led to the mother seeking the involvement of the police and the CAS.

[120] While there does appear to be a tendency on the father’s part to be defensive and focussed on his rights, he is clearly willing and able to care for and meet the needs of the children. None of the incidents that were described in the trial testimony give me reason to be concerned that he has or would put the children’s physical, emotional and psychological safety, security and well-being at any serious risk.

(f) Section 16(3)(i) – the ability and willingness of each parent to communicate and cooperate, in particular with one another on matters affecting the children

[121] Communication has been difficult for both parents in the past, in different ways. The mother has been frustrated by the father’s timeliness (or lack thereof) and indecisiveness, and the father has been frustrated by the mother’s lack of consultation. The parents do not enjoy interacting with each other but they have demonstrated that they are able and willing to do so when it is necessary.

[122] The OCL Report recommended the use of Family Wizard and the parents have adopted a practice of contactless exchanges which has improved their communications and reduced the conflict between them. The parents will both need to continue to work at this. As was indicated in connection with s. 16(3)(c), while some improvements have occurred since the OCL Report, it is clear that both parents still need to work to improve at this, but neither can be said to have demonstrated a materially better or worse aptitude or willingness to do this relative to the other, such that it would impact the assessment of the best interests of the children.

Section 16(3)(j) - Allegations of Family Violence

[123] One of the primary factors that the applicant says tips the balance in favour of the children’s primary residence being with her and for her to have sole decision making authority is tied to her assertions that the father financially and emotionally oppressed her. The mother maintains that this form of historic family violence calls into question the father’s ability and willingness to meet the needs of the children and/or to put their interests ahead of his.

[124] Section 16(3)(j) of the amended Divorce Act includes as one of the factors to consider in determining what is in the best interests of the children any family violence and its impact on, among other things,

i. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

ii. the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child;

[125] The allegations of family violence against the father date back to the immediate aftermath of the parents’ separation. It was no doubt a very difficult time for both parents, neither of them having expected to separate so shortly after moving to Canada without status and with two young children.

[126] There is no allegation that the father physically abused the mother, although, in May 2017, shortly after their break-up, the father did watch his then girlfriend and her daughter attack the mother at their house, kicking and bruising her and pulling out her hair.

[127] The mother points to the financial stress that she was under between September 2017 and February 2018 as a result of the father having unilaterally reduced the amount of monthly support he had been paying for the mother and the children and making payments after the first of the month.

[128] In addition to the reduced and delayed support payments, the mother relies on other examples of what she calls a pattern of financial oppression, such as:

a. More recent reductions in monthly support in the lead up to this proceeding;

b. Refusing to allow JECP to walk over to his house after school during her weeks with her mother to save the applicant the cost of the after-school pick up;

c. Insisting on Monday morning drop offs of JOCP at his babysitter when the father knew that the mother was not working and would be taking care of JOCP herself and had said she could not afford to pay the babysitter;

d. Declining to contribute to the cost of JECP’s first medical examination for her permanent residency status and avoid a second examination;

e. Declining to share in the cost of winter clothing that the children could wear between houses rather than having to have two sets;

f. Declining to pay for half of JECP’s acne medication or her braces.

[129] The applicant argues that the respondent’s desire for her to suffer financially calls into question his willingness to meet the needs of the children. The applicant also contends that the respondent has harassed her over text and by phone and in person, and through photographic surveillance. This is said to be exacerbated by his interrogation of the children about what they do when they are with the applicant and her family (JECP has commented to her mother that her father asks too many questions, and she even said to her father in a text message just before she was coming to his house “ok but remember NOoooo questions.”).

[130] The applicant relies upon the definition of family violence in s. 2(1) of the Divorce Act, which includes financial abuse, harassment, the failure to provide the necessaries of life and psychological abuse, among others. Section 16(4) directs the court to take certain factors into account in considering the impact of family violence on the best interests of the children, including: (f) whether the family violence causes the child or other family member to fear for their own safety or that of another person, and (g) steps taken to prevent further family violence from occurring and to improve their ability to care for and meet the needs of the child.

[131] The applicant argues that the father’s threat to stress out the mother and cause her to lose her baby led JECP to fear for the lives of her mother and unborn child. JECP’s upset over this was clearly expressed in text messages that she sent to her father, that her mother was not aware of until afterwards (and which have now been ruled inadmissible for the truth of their contents). The applicant argues that the father’s steadfast refusal to even acknowledge that he has engaged in these abusive activities has left him in limbo and has not led him to make any changes or improvements in his behaviours.

[132] The father denies all of these alleged abusive behaviours. He claims that he paid the applicant what he could, when he could, during financially strained times. He notes that:

a. he has never been in breach of any court ordered support (because, until recently, there was none);

b. he has never been in breach of any agreement to pay support (because the separation agreement did not provide for any); and

c. there has never been any police or CAS investigation of him or any indication from these authorities, whose involvement the mother initiated, that he has been abusive or failed to provide the necessities of life for his children.

[133] The respondent relies on s. 16(5) of the Divorce Act, which directs the court, in determining what is in the best interests of a child, not to take into consideration the past conduct of any person unless it is relevant to the exercise of their parenting time, decision making responsibility or contact with the child. He also relies on the OCL Report that affirms his ability and willingness to act as a parent to the children.

[134] The applicant has not established that the past dealings between the parents regarding financial matters demonstrates a pattern of family violence or financial oppression that continues today. The respondent may have been manipulative at times with his willingness to provide funds to applicant, which he attributes to a high level of skepticism on his part as to her financial resources. In any event, the evidence does not establish that the respondent’s behaviour regarding financial matters in the past demonstrates an unwillingness to care for and meet the needs of the children today.

[135] I accept and rely upon the findings in the OCL Report that both the father and the mother were at the time of the OCL investigation and assessment observed to be loving and attentive parents who are able and willing to meet the needs of the children when exercising their parenting time and decision making responsibilities. This conclusion is affirmed by the trial evidence.

Section 16(3)(a) and (e) - The Children’s Views and Preferences – Is there a Need for the Stability of a Home Base?

[136] This is the second major factor that the mother argues tips the balance in favour of the children’s primary residence being with her and her having primary decision-making authority. She contends that the children are at ages and stages of development that require the stability of one home base, and that this is reflected in their views and preferences expressed by their words and conduct since the OCL Report was provided.

[137] This has been addressed in some detail, and rulings have been made, previously in these reasons. I found that there are times when the children may prefer to be at one parent’s house or the other’s for a longer period of time. Although the examples are ones presented by the applicant that suggest a preference to be with her, the children may also at times have a preference to spend longer times at their father’s house. The admissible evidence does not support a finding that the children have clearly expressed a preference to have their primary residence with their mother. The evidence about a few isolated incidents of JECP refusing to return to, or leaving, her father’s house and a single incident of JOCP crying when he was being dropped off at his father’s house is not sufficient for me to find that the children would prefer to live primarily with their mother.

[138] There was no professional or opinion evidence tendered to suggest that the children are in need of the stability of a “home base” residence. Anecdotally, the mother and her best friend and her aunt testified that this would be better for the children, but their evidence, however well-intentioned it may have been, is not objective. Ms. Casino testified that this was a child-specific assessment. While younger children sometimes benefit from this, she did not express the view that it was in JOCP’s best interests to remain with his mother; Ms. Casino’s recommendation for both children was that they continue living equally with both parents under the shared parenting regime.

Analysis and Determination of the Issues Raised

Parenting Time

Residential Schedule

[139] The parents’ competing positions regarding the residential schedule come down to the applicant’s contention that the children should be primarily resident with her and that her house should be their home base, with liberal parenting time afforded to their father vs. the respondent’s contention that the shared parenting regime and “week-about” parenting time schedule that has been in place since in or about February 2018 should continue.

[140] The order of Kristjanson J., made September 30, 2019, ordered the shared parenting regime established under the contested Separation Agreement was to continue until trial, unless the applicant brought a motion and obtained an order to vary that arrangement, and to change the status quo, pending the trial. The applicant did not do so. She is not faulted for not having brought that interim motion, but the practical effect is that the status quo has continued under the shared parenting regime for almost 3.5 years, except for a brief time in the spring and summer of 2020 when JECP stayed with the mother and visited the father until a motion for contempt was threatened and JECP returned to the week-about schedule.

[141] The father relies on the following facts that are said to favour maintaining the status quo of the shared parenting regime:

a. The OCL Reports recommends it.

b. No witness testified negatively about the father’s parenting ability today, not even the mother.

c. Examples of the father’s past behaviours which might have raised questions about whether they were motivated by the best interests of the children or out of spite for the mother date back to 2017 to 2019.

d. Both parents agree that JECP is now in a good place, and a better place than she was at the time of the OCL Report.

e. Since the parties adopted some of the recommendations contained in the OCL Report, the opportunities for conflict have been diminished and, so too, have the complaints by the mother about the father’s behaviour. This is a good development that has come out of this proceeding.

f. The father and his partner describe a healthy, active and appropriate relationship with both the children, and between JECP, JOCP and their step-siblings. This was affirmed by both the father’s sister and his partner’s sister, both of whom testified that they observed the children to be happy and comfortable in his care and that he was a loving and attentive father.

g. The father plays an active parenting role and has a close relationship with both children.

[142] The above facts are uncontroverted. Having regard to these facts and that the evidence at trial did not disclose any reason to be concerned about the father’s ability to provide a safe and stable home for the children or about his willingness and ability to meet their needs, I also find that the shared parenting regime, that affords the children roughly equal time with each of their parents, is consistent with their best interests at this time.

[143] As I indicated earlier in these reasons, JECP, who is now a mature teenager (and JOCP when he becomes one), should have a safe forum in which to express her views and preferences and have them heard, considered and accommodated to the extent possible, even if it means adjustments to the residential week-about schedule under the shared parenting regime. While a teenager’s views and preferences should not be determinative in all circumstances, they are important. Ms. Casino confirmed this in her testimony and acknowledged that they often do change from time to time, and can be influenced by many different factors. Making allowance for this does not require the further involvement of the OCL.

[144] I am going to make an order for JECP to attend counselling and part of the mandate of the counsellor will be to try to objectively ascertain what JECP’s views and preferences are regarding her residential schedule from time to time. If JECP consents, the counsellor will be asked to share those with both parents and both parents are, in turn, encouraged to respect and to try to accommodate them even if it means adjustments to the shared parenting regime. The parents are directed to seek a recommendation of a counsellor for JECP from their family doctor. Counselling for JOCP should also be made available to him, through the same channels, when he becomes a teenager.

Holiday and Vacation Schedules

[145] The parents now appear to be in agreement about the summer schedule and of the desirability that they try to settle that before the end of March in each year, to allow for sufficient time for summer programs and holidays to be booked. This will be ordered in accordance with what the applicant has now proposed in her draft order, which for the most part has adopted what the respondent was suggesting. Although the timing of this trial and closing submissions and the ultimate decision occurred after the proposed March 31, 2021 deadline for summer scheduling this year, and the COVID-19 restrictions have made it difficult for all parents to know what summer programs will be available this year, hopefully the parents have been, or will be, able to reach agreement on some process to register the children in summer programs this year.

[146] Neither parent is seeking to change the arrangements regarding March break or other holidays, during which, according to the separation agreement, the standard residential parenting schedule will continue to apply.

[147] The separation agreement provided that the children would be with one parent for Christmas/Boxing Day (December 25-26) and the other parent for New Year’s (December 31 – January 1) in alternating years.

[148] The applicant wishes to continue with what the separation agreement provided. The respondent testified that he is open to being flexible about the holidays, but his formal position is that the court should adopt the recommendation from the OCL Report, to split Christmas (and therefore also New Year’s) so that the children see both parents, on Christmas in particular. The rationale for ordering this in other cases has been focussed on the importance of sharing special holidays, especially when there are other siblings in each home: see T.J.L. v. E.B., 2020 ONSC 4417, at paras. 8-11; Brown v. Brown, 2021 ONSC 1753, at para. 124(k)(v); David v. McCain (2005), 2005 CanLII 45968 (ON SC), 26 R.F.L. (6th) 405 (Ont. S.C.), at paras. 19-20; C.C.F. v. C.L.P., 2017 BCPC 434, at paras. 28, 30; Curphey v. Aldebert, 2012 ONSC 4628, at paras. 10-11; and M.M. v. J.R., 2009 ONCJ 443, at para. 48.

[149] The respondent suggests, in response to the applicant’s concern that this precludes travel over the winter holidays, that this can be flexible and exceptions can be made if one parent wants to go out of town, as long as there is consultation about travel in advance. However, he argues that the inconvenience of planning around holiday functions to include the children when both parents are in town should not be a reason to deprive them of time with both parents. I agree and so order, that the holidays be shared in the manner proposed in the respondent’s draft order, with the opportunity for exceptions to be provided for in years when one or the other party makes plans to go away for some or all of the winter break. If the sharing is altered in favour of one parent in a given year to allow for travel, then the sharing will be altered in the next year in favour of the other parent, whether or not they choose to travel, subject to the consideration and accommodation of the views and preferences of the children if expressed.

Decision Making Regarding Health, Education, Counselling and Legal Documentation

[150] The applicant is seeking:

a. Final decision making with regards to significant matters concerning JECP born [...], 2008 and JOCP born [...], 2015 (collectively, the “children” and individually each the “child”), with the obligation to consult and allow the respondent the opportunity to provide input prior to any final decision being made;

b. Final decision making regarding the choice of a counsellor for either or both children, if counselling is considered advisable or recommended by the children’s family doctor and if the parents cannot agree on the choice of counsellor;

c. Sole authority and responsibility for obtaining and renewing all government and identification documents for the children, without the necessity of any consent or signature from the respondent if he fails to provide those within seven days of request, with copies of said documents to be provided to the respondent upon them being received or obtained by the applicant;

[151] The respondent is seeking with respect to decision making:

a. joint decision making on all matters or,

b. in the alternative, major decisions to be made after an opportunity for input from both parents AND in consultation with an expert such as a doctor, school teacher or principal, where applicable and, in the absence of agreement or in time-sensitive situations, the respondent shall have final decision making pertaining to matters of education and the applicant shall have final decision making with resect to matters of health, with joint decision pertaining to matters of religion; and

c. if counselling is needed for either child, each party shall provide their perspective and they shall mutually agree on a counsellor. No counselling will be arranged by one parent without the agreement of the other parent. Neither party shall unreasonably delay the process and must, within 7 days of a proposed counsellor either provide their consent or propose an alternative counsellor;

d. the applicant will have the responsibility for obtaining and renewing all government and identification documents for the children, and the respondent shall provide his consent and signatures for any renewals as needed and within one week of being asked, and will be provided with copies of said documents upon them being received or obtained by the applicant;

[152] The parents agree that the mother will be the one with ultimate responsibility and authority to deal with all government and identification documents for the children, although the father is to be given the documents and afforded seven days to review them and provide his comments, consent and signature.

[153] The father wants to continue to exercise joint decision making, although he offers parallel decision making as an alternative, in which event he would have the ultimate responsibility and authority to deal with matters involving the children’s education and the mother would have the ultimate responsibility and authority to deal with matters involving the children’s health if the parents cannot agree after consulting with one another and the relevant third party professionals who may be involved in the particular decision. The OCL Report recommended that the parents continue to exercise joint custody/decision making in respect of the children. A concern was flagged that, if sole decision making rested with the mother, there is a risk that the father would not be included, given the mother's strong negative feelings about him and his partner and strong beliefs that she is better able to meet the children's needs.

[154] The mother’s testimony at trial confirmed that she continues to be suspicious and skeptical of the father and his partner and to believe that she is better able to meet the children’s needs. While she does try to consult with the father about decisions that need to be made concerning the children, she is resentful of opinions and questions that he raises that are not aligned with her views of how things should be handled. The father historically did not question her, so the mother has assumed that the father’s new partner is to blame for meddling in the children’s affairs of late.

[155] On the flip side, the mother has been justifiably frustrated by the father’s delays in responding to her on some matters, and is justifiably frustrated in having been the one to shoulder the primary burden of anticipating, identifying and proactively, or reactively, dealing with most of the logistics for the children’s health care, government documents and status, schooling etc. Her perception is that she worries and plans and struggles financially to provide for the children while the father takes them on vacations and enjoys hiking and other outdoor activities with them.

[156] In her closing submissions, the applicant characterizes decision making as a “power” that the respondent wields over her, while leaving her with the primary responsibility for initiating all decisions about the children (e.g. not taking on the responsibility of the decision making but simply reacting to her requests and initiatives). This concern about the use and misuse of decision making power was considered by the Supreme Court of Canada in Young, per L’Heureux-Dubé J. (dissenting), at p. 51, in the context of the court’s determination that: “It is precisely to ensure the best interests of the child that the decision making power is granted to the custodial parent, as that person is uniquely situated to assess, understand and promote the needs of the child.”

[157] I have decided to maintain the shared parenting arrangement, so the mother will not be the “custodial” or primary parent and she is no more uniquely situated to assess, understand and promote the needs of the children than the father is, although she has historically been more inclined to take the initiative to do so.

[158] The mother has historically taken on these responsibilities, which has left the father with the “power” or control to approve or not approve the arrangements that she has worked hard to put in place by withholding or delaying his consent. Some recent examples include the acne medication and orthodontics for JECP. These examples also illustrate the mother’s approach to dealing with these disagreements, which is to just go ahead and do what she has suggested even if the father does not agree (or contribute financially).

[159] Some of the recommendations contained in the OCL Report were directed at alleviating conflict around decision making. Most of these recommendations have been adopted by both parents, and they both acknowledge that things have been less confrontational since then. However, these recommendations have not entirely eliminated the tension around decision making (the acne medication and orthodontics being cases in point).

[160] There is no question that it is easier for the court to order joint decision making when the parents have a history of joint decision making and co-operation (as was the case, for example, in Garland v. Brouwer, 2011 ONSC 6437, 14 R.F.L. (7th) 380, at paras. 28-29). An order for joint decision making may be necessary or more appropriate in a situation where there might otherwise be a real risk that one parent would minimize the role of the other in the children’s lives, such that joint decision making can be a tool to preserve the balance of power between the parents (such as was the case in Groff v. Russell, 2019 ONCJ 898, at paras. 130 and 135, and in Brown, at para. 93). In Wilson v. Wilson, 2015 ONSC 479, at para. 103, the court considered joint decision making to be a means of ensuring that both parents were actively involved in the children’s lives, and that it was important for the children to know that both parents were contributing meaningfully to the decisions that affected their lives.

[161] The concern in these cases was about the possibility that a parent with less parenting time would be marginalized in the children’s lives if the power imbalance was further exacerbated by depriving the non-primary parent of decision-making authority as well. The balance of power in this case is different because the parents have, and will continue to have, equal parenting time. Having heard all of the evidence and considered the OCL Report and testimony of Ms. Casino, I share her concern that there is a risk that the mother might not take into account the father’s views and suggestions where they diverge from her own, if she is given the ultimate decision making authority.

[162] Conversely, the mother suggests the father is not genuinely and sincerely willing to work with her to make joint decisions and simply wants to have decision making authority as a way to exert power over her. There may be some historical validity to this concern, but the history of dealings that has led her to this belief dates back a number of years. The father says that he is today sincerely and genuinely willing to work with the mother to make joint decisions. The directions that I am providing will require him to do so. Joint decision making is in the best interests of the children as long as both parents are active participants and one is not just a passive responder/objector.

[163] The mere fact that there is a history of communication challenges and hostility between these parents is not a reason to shy away from all joint decision making. They have been able to make many decisions about the children jointly. The trial has just disproportionately focussed on the decisions that did not come easily. The court in Brown emphasized, at para. 83, that undue emphasis should not be placed on allegations of conflict or conflict existing at the trial and the impact of conflict on decision making. On a related point, I do not accept the respondent’s contention that the applicant is the cause of the conflict and that she should, thus, not be permitted to rely on the conflict as a basis for resisting joint decision making: see V.K. v. T.S., 2011 ONSC 4305, at para. 76; AUJ v. GSU, 2015 ABQB 6, at paras. 71-73; Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 249 D.L.R. (4th) 620 (Ont. C.A.), at para. 11; and Garland, at paras. 30-31. Both parents are responsible for the conflict and tension that exists between them and both need to continue to look for ways to avoid or minimize it, for the sake of their children.

[164] The alternative of parallel decision making, with each parent having the ultimate decision making authority on one issue is not the ideal solution in this case either, even though there is precedent for such arrangements in high conflict cases: see V.K., at para. 79; Ursic v. Ursic (2006), 2006 CanLII 18349 (ON CA), 32 R.F.L. (6th) 23 (Ont. C.A), at para. 26; and Plugers v. Krasnay, 2016 ONCA 279, at para. 3. The mother has been involved in all decisions regarding the children in the past and I do not think it is in their best interests for her to be potentially excluded from one area of decision making where the father has the ultimate authority. I also think this will breed further resentment of the mother towards the father’s partner, who is a teacher and the father is proposing that he have the ultimate decision making authority over education.

[165] “Courts do not expect communication between separated parents to be easy or comfortable, or free of conflict. A standard of perfection is not required, and is obviously not achievable”: Ciutcu v. Dragan, 2014 ONCJ 602, at para. 21. In Warcop, at para. 94 (cited in Brown, at para. 84), this court considered the level of communication between the parents in making an Order for joint custody and held as follows:

[A] standard of perfection is not required, and is obviously not achievable. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. In making this assessment, the Court must be governed by the evidence that has been presented as to the communication and cooperation between the parties to date; the mechanisms that are in place to ensure that it will continue; and the assessment of the judge as to the capabilities of the parties to do so in the future..

[166] The Court of Appeal endorsed a similar approach taken by the trial judge in May-Iannizzi v. Iannizzi, 2010 ONCA 519, at paras. 2-4, in which the court ordered joint decision making based on a finding that there was a “realistic hope” that the parents would be able to work together for the benefit of their children. I agree with the father that there is at least a realistic hope in this case, with a demonstrated track record of some co-ordinated decision making, and a disproportionate focus on some disagreements and miscommunications along the way that have become magnified in the context of the trial.

[167] The applicant argues that the court cannot order joint decision making where the parents are not sincerely and genuinely willing to work together. See, for example, Young, at p. 48; and Kruger v. Kruger (1979), 1979 CanLII 1663 (ON CA), 104 D.L.R. (3d) 481 (Ont. C.A.), at p. 485:

Above all, [joint custody] requires a willingness by both parents to work together to ensure the success of the arrangement. Such a willingness must be sincere and genuine; by its very nature it is not something that can be imposed by a Court on two persons, one or both of whom may be unwilling or reluctant to accept it in all its implications. Like marriage itself if it is to succeed, it is an arrangement that has to be worked out by two persons who are determined, of their own will and in good faith, to make it work.

[168] I am ordering the joint decision making to continue, on the following terms:

a. Both parents should take the initiative to anticipate decisions that might need to be made and make suggestions about what needs to be done, how, when and by whom. The mother should not be shouldering all of this responsibility and the father will need to start proactively engaging as a condition of the continuation of the joint decision-making authority.

b. If one parent makes a suggestion, the other must respond with their agreement, or suggestions or disagreement (with reasons) within seven days (one week), unless the circumstances call for a more timely response in which case the suggesting party should indicate that at the outset.

c. Decisions in emergencies are to be made by the parent in whose care the children are in at the time of the emergency.

[169] The joint decision making authority will extend to decisions about counselling for the children in the future (under the healthcare decision making authority), but for the immediate term, I am ordering that the parents arrange for JECP to start seeing a counsellor, and that they both encourage her to attend counselling sessions. She has been subjected to a lot of conflict over the past few years and she should have the opportunity to talk to a professional about this. This professional counsellor will also be skilled in ascertaining JECP’s views and preferences regarding how much time she spends at each parent’s house and, if JECP gives her permission, the counsellor is encouraged to share those views and preferences with the parents and the parents are encouraged to try to accommodate those, within reason.

[170] The parents are directed to ask JECP’s family doctor for some recommendations of counsellors or therapists for JECP whose fees are covered by OHIP and/or any available insurance coverage. JECP will have the ultimate choice of which one she will see once the options are presented to her. If the family doctor is not able to come up with suitable recommendations, then the parents are directed to ask the school principal or guidance counsellor for their suggestions. If there is a nominal uninsured cost associated with these therapy sessions, the parents are to equally contribute to the cost.

[171] In future, should counselling be recommended by their family doctor, teacher, school administrator or other professional for either of the children, the parents are to seek names of suggested counsellors whose fees are covered by OHIP and/or any available insurance coverage from the person who is recommending the counselling. If the parents cannot agree on which counsellor to engage, the person recommending the counselling will select the counsellor in consultation with the child for whom it has been suggested.

[172] The parents shall encourage and facilitate both children’s participation in counselling, now for JECP and in future, if recommended.

Ancillary and Other Relief

[173] The following ancillary orders are made, in light of the orders made on the primary issues of parenting time and decision making:

a. Since there has been no change to the parenting schedule and each parent will continue to have equal time with the children, there is no reason to schedule a further hearing regarding adjustments to the Table child support amounts being paid by the father or the proportionate sharing of s. 7 expenses provided for under the consent orders recently made. If any changes are made to the parenting schedule as a result of views and preferences indicated by the children and communicated to the parents that the parents are able and willing to accommodate, that will not automatically lead to a justification for the party with whom the children may be spending more time to seek to change in the Table child support or s. 7 expenses. Such changes should only return to the court for further consideration if they result in a material and long lasting change to the week-about parenting schedule under the shared parenting regime.

b. The father is ordered to contribute his proportionate share of JECP’s orthodontic expenses based on the actual cost, without regard to insurance benefits that have covered some or all of the mother’s proportionate share of this extraordinary expense, from her partner’s benefits plan. To be clear, the applicant’s partner’s insurance benefits, which he has paid the premiums for, may be credited towards the applicant’s share. These were appropriately insured s. 7 expenses, they are not insured by either parent’s health benefits, there was a time limited ability to access insurance benefits that significantly reduced the cost to both parents that the mother took advantage of and, as things presently stand, it is the mother’s partner who has paid the premiums that covered the insured portion in addition to assisting the mother in paying for the uninsured portion. The father has succeeded in delaying his contribution towards this expense, but the time has now come for him to pay his share. The provisions of the April 12, 2021 consent order dealing with s. 7 expenses will hopefully avoid a situation like this in the future.

c. The remainder of the application, including any issues raised by the application that the court was not asked to address at this trial and that have not been addressed in the final consent orders that have been signed to date, is dismissed.

Final Order and Costs

[174] The April 12, 2021 consent order that was jointly submitted to the court is being treated as the proposed parenting plan for purposes of s. 16.6 of the Divorce Act. Based on the above reasons, I make the following orders and directions which reflect the court’s determination of what is in the best interests of the children, by way of modification or supplement to the terms of the April 12, 2021 consent order. The following orders and directions prevail if there is any conflict between them and the April 12, 2021 consent order.

[175] A final order is to go as follows:

Parenting Time:

The Regular Residential Schedule:

1. The parenting time with the children shall be shared, one week on and one week off (“week-about” shared parenting).

2. Both parents shall be flexible and accommodating of special events and plans in each other’s expanded families and around events that might be particularly meaningful to one or the other, and shall give consideration to adjustments to the parenting schedule to accommodate these whenever possible, if requested to do so by the other parent with reasonable notice.

3. Both parents shall be receptive to the children’s wishes to see the other parent if they are ill or in need of that parent’s support.

4. As the children age and mature, they shall be afforded some independence and flexibility of having their views and preferences about their residential schedule heard and considered by the parents: this is true of JECP now, and of JOCP in the future. To this end:

a) Arrangements will be made for JECP to receive counselling, as set out further below, and the counsellor will attempt to objectively ascertain JECP’s views and preferences regarding her residential schedule from time to time; if JECP grants her permission, the counsellor may share those views and preferences with the parents.

b) The parents shall respect and attempt to accommodate those views and preferences, even if it means adjustments to the shared parenting regime.

c) This same process shall be available to JOCP when he turns 13, or younger if recommended by his family doctor or the school principal or counsellor.

Holidays and Vacations:

5. There shall be up to two consecutive weeks of uninterrupted summer holiday vacation time for each parent, to be co-ordinated in advance, preferably by the end of March of each year, with each parent having priority for their choice of weeks in alternating years.

6. There will be no special provisions for March break or other holidays. For the remainder of the summer and during spring break, each parent will be responsible for arranging activities/camps during their designated weeks.

7. The children will spend equal time with both parents on Christmas Day, Boxing Day, New Year’s Eve and New Year’s Day, with mid-day transitions;

a) The parents will be flexible in making exceptions where one or the other parent makes plans to go away for some or all of the winter break.

b) If one parent wishes to make plans to be out of town over the winter break, they shall provide as much notice as possible to the other parent. The provisions of paragraphs 37 to 40 of the April 12, 2021 consent order regarding any travel involving the children continue to apply, however, planned travel over the winter break should, if possible, provide for more than three week’s advance notice.

c) If sharing is altered in favour of one parent in a given year to allow for travel, then the sharing will be altered in the next year in favour of the other parent, whether or not they choose to travel, subject to the consideration and accommodation of the views and preferences of the children, if expressed

Decision Making Authority with Respect to the Children’s Health, Education, Counselling and Legal Documentation:

8. The parents shall exercise the joint decision making in respect of the children under paragraph 2 of the April 12, 2021 consent order, on the following terms:

a) Both parents should take the initiative to anticipate decisions that might need to be made and make suggestions about what needs to be done, how, when and by whom.

b) If one parent makes a suggestion, the other must respond with their agreement, or suggestions, or disagreement (with reasons) within a week, unless the circumstances call for a more timely response, in which case the suggesting parent should indicate that at the outset.

c) Decisions in case of emergency are to be made by the parent in whose care the children are in at the time of the emergency.

9. In addition to what is provided for in paragraphs 33 to 36 of the April 12, 2021 consent order, the mother shall have the ultimate authority in respect of the children’s government and other legal documents, after providing the father with a week in which to review and respond to provide his reasonable comments, if any, and his consent and signature, failing which the mother will be at liberty to proceed without his input and without the need for his authorization or consent.

10. Joint decision-making authority will include decisions about counselling for the children now and in the future, on the following terms:

a) The parents will arrange for JECP to start seeing a counsellor immediately, who will be chosen as follows:

i. The mother shall ask JECP’s family doctor for recommendations of counsellors or therapists for JECP whose fees are covered by OHIP and/or are covered by any available private insurance;

ii. If the family doctor is not able to provide suitable recommendations, and/or if the father does not accept any of the recommendations provided, within 72 hours of being provided with those recommendations, the father shall ask the school principal or guidance counsellor for their recommendations of counsellors or therapists for JECP whose fees are covered by OHIP and/or are covered by any available private insurance;

iii. If the parents agree on one or more of the recommended counsellors or therapists within 72 hours of the second recommendations being provided, those name(s) shall be presented to JECP, who will have the ultimate choice of which counsellor to see once these options are presented to her;

iv. If the parents do not agree on one or more of the recommended counsellors or therapists within the allotted 72 hours, the persons who recommended the proposed counsellors or therapists through this process shall each be asked to rank the names they each recommended and return their list within 72 hours. Those lists/rankings shall be compiled and presented to JECP, who will have the ultimate choice of which counsellor to see once these options are presented to her; and

v. In making her selection, JECP may speak to the person who recommended the counsellor/therapist, the counsellor/therapist and either one or both of her parents before making the final choice.

b) Counselling shall be arranged for JOCP following the same process when he turns 13, unless it is recommended by a third-party professional for him to commence seeing a counsellor earlier.

c) If counselling is independently recommended by a family doctor, teacher, school administrator or other professional for either of the children in the future, the parents are to seek names of suggested counsellors whose fees are covered by OHIP and/or any available insurance coverage from the person who is recommending the counselling and arrangements shall be made following the same process as above.

d) It is recognized that neither parent can afford to pay for counselling and that it may not be possible to arrange for counselling if it is not covered through OHIP or private insurance. However, any nominal uninsured cost associated with such counselling will be contributed to equally by the parents.

e) The parents shall encourage and facilitate both children’s participation in counselling.

Ancillary Orders:

11. No further hearing is being scheduled at this time for disclosure or to consider any adjustments to the Table child support amounts being paid by the father or to the proportionate sharing of s. 7 expenses provided for under the April 12, 2021 consent order recently made.

12. If any changes are made to the week-about shared parenting schedule as a result of views and preferences indicated by the children, those shall be considered by the parents and accommodated without regard to the implications for potential changes to the parents’ obligations with respect to child support and the sharing of s. 7 expenses which are set out in paragraphs 3 to 13 of the April 12, 2021 consent order.

13. The father is ordered to contribute his proportionate share of JECP’s orthodontic expenses based on the actual cost, without regard to the mother’s partner’s insurance benefits that have covered some or all of the mother’s proportionate share of this extraordinary expense. To be clear, the mother’s partner’s insurance benefits, which he has paid the premiums for, are only to be credited towards the applicant’s proportionate share of the cost of JECP’s orthodontic work.

14. The remainder of the application, including any issues raised by the application that the court was not asked to address at this trial and that have not been addressed in the final consent orders that have been signed to date, is dismissed.

Costs

[176] The parents requested that the court afford them an opportunity to make written cost submissions after the outcome of the trial was known to them. I agreed to afford them that opportunity, but asked that they exchange the Bills of Costs beforehand, by a deadline that has long passed so I assume that exchange has already taken place.

[177] With the benefit of these reasons, the parents are encouraged to try to reach an agreement on costs. If an agreement is reached, they are asked to advise the court of such by June 25, 2021. If no agreement on costs is reached, each party may serve upon the other and file with the court a brief cost submission (not to exceed 5 pages double spaced) together with their Bill of Costs and any relevant settlement offers or other supporting documents on or before July 9, 2021. Each party may serve upon the other and file with the court a brief reply cost submission (not to exceed 2.5 pages double spaced) on or before July 23, 2021.

[178] In addition to filing these submissions through the online filing portal and uploading them onto CaseLines, the parties are directed to deliver copies by email to my judicial assistant at: linda.bunoza@ontario.ca. If no cost submissions have been received by me by July 23, 2021, costs will be deemed to have been settled.

[179] These reasons for judgment and the orders and directions contained herein shall be effective immediately, without the need for the formal issuance and entry of an order, although either party may take out an order reflecting same.

Kimmel J.

Released: June 11, 2021

COURT FILE NO.: FS-19-10732

DATE: 20210611

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

G.C.

Applicant

– and –

R.D.P.

Respondent

REASONS FOR JUDGMENT

Kimmel J.

Released: June 11, 2021

[^1]: The parties’ names have been initialized throughout this judgment so that their identities and the identities of their children are not disclosed. Anonymization has been deemed by the court, upon the court’s own initiative, to be in the best interests of the children.

[^2]: A divorce order has since been signed by me, dated May 19, 2021, in the original divorce application commenced by the husband under court file number FS-18-5857.

[^3]: Dealing with issues that were originally covered by the separation agreement.

[^4]: Neither the police nor the Children’s Aid Society or the Catholic Children’s Aid Society, who the mother asked to investigate the father’s care of the children, determined that there was any need to investigate or identified any concerns that they felt warranted any further action on their parts.

[^5]: The respondent challenges the excerpts of these text messages that the applicant chose to have officially translated for the trial. It is not clear that anything turns on this, but it is clear that the entire chain of messages was produced in Portuguese, that the respondent speaks and understands Portuguese and could have translated more of them if he felt important context was missing. He was even invited to do so at the trial if that was deemed necessary. He did not do so. I see no reason to disregard the translated messages that were tendered into evidence by the applicant which provide further context about the history of the dealings between the parents.

[^6]: This relief is not specified to be contingent upon a change to the parenting schedule, although it would have to be in light of the March 8, 2021 pre-trial endorsement of Hood J.

[^7]: The respondent’s follow up questions of Ms. Casino at the conclusion of her trial testimony established that, if the OCL were to be asked to conduct a further review and assessment, it should not be a “voice of the child” report because that does not allow for the consideration of any potential third party influences on the children, which Ms. Casino indicated she felt would need to be considered in this case.

[^8]: The OCL Report records that JECP said something similar to another counsellor who she had spoken to prior to the OCL interviews.

[^9]: This is indicated in the OCL Report. There is no specific note about this from Ms. Casino’s interviews of JECP, but Ms. Casino testified that JECP did tell her that and it was recorded in the OCL Report.