COURT FILE NO.: 19/38

DATE: 2021-08-09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

C.C.

Applicant

– and –

S.C.

Respondent

C.C., Self-represented

Brian Burke and Joelle Ruskin, for the Respondent

HEARD: June 22, 2021

REASONS FOR DECISION

conlan j.

I. Introduction

The Parties

[1] The Applicant in this proceeding is the mother, C.C., who represents herself. The Respondent is the father, S.C., whose counsel is Epstein Cole LLP – Mr. Brian Burke and Ms. Joelle Ruskin

The Child

[2] The most important person in this proceeding is the child, C.M., currently ten years old. His best interests are paramount, meaning that the resolution of the issues before this Court depends on what is believed to be best for C.M.

The Motion

[3] On June 22, 2021, a long motion was heard by this Court. The full day was set aside for the hearing. The motion, dated June 11, 2021, was brought by the father. It is important to understand the precise relief being sought by the father, and thus reproduced below are clauses 1 through 21, the entire prayer for relief, contained in the Notice of Motion dated June 11th.

1. An Order that the judge hearing the June 18, 2021 motion seizes herself or himself of the parenting issues in this case in terms of any reviews, returns to court to deal with problems, and so forth (except in case of exigent circumstances where that judge is not available to hear the matter);

2. An Order that, within five (5) business days of the release of this Honourable court’s endorsement/reasons in connection with this motion, the parties shall sign an engagement letter/service agreement with Joanna Seidel for her to act as the Therapeutic Parenting Counsellor under the Final Order of Justice Chozik dated January 8, 2021 (the “Final Order”) in the form attached Schedule “A” to this Notice of Motion, with any modifications as may be communicated by Ms. Seidel.

3. An Order that, until the Applicant cooperates with signing the engagement letter/service agreement with Ms. Seidel and attends for her intake appointment as directed by Ms. Seidel, the Order of Justice Chown, dated January 8, 2021, shall remain in place with its suspension of the Applicant's parenting time and with its frequency and duration of supervised phone calls between the Applicant and C.M., and that, upon compliance with these points, the Applicant's parenting time will recommence in accordance with what is set out in paragraph 5 of this Notice of Motion;

4. An Order that the cost/fees of the supervised phone calls ordered pursuant to Justice Chown's Order be paid for by the Applicant and, if necessary, that those cost/fees be deducted from any support she receives from the Respondent;

5. An Order that paragraph 15 of the Final Order be replaced with the following:

“During the period that the Applicant is meeting weekly with the Therapeutic Parenting Counsellor in accordance with the preceding paragraphs, the Applicant shall have parenting time with C.M. overnight from Wednesday at 4:30 p.m. to Thursday at 9:00 a.m. in Week One and Friday from 4:30 p.m. to Sunday 5:30 p.m. in Week Two and shall reside with the Respondent at all other times regardless of holidays unless the parties otherwise agree in writing and subject only to the 2021 summer holiday schedule set out in the Court Order.

The Applicant shall have phone access with C.M. for no more than 15 minutes on Mondays, Fridays and Sundays in Week One.”

6. An Order that, in the event that the Applicant does not comply with the Therapeutic Parenting Counselling requirements under paragraph 12 of the Final Order, the Applicant's parenting time shall be automatically suspended and shall remain suspended until this Honourable Court reinstates it upon a motion brought by the Applicant to the court for such purpose;

7. An Order that paragraphs 17 and 18 of the Final Order are replaced with the following:

Within 30 days of the completion of Phase Two: Therapeutic Parenting Counselling, the parties shall attend before the judge seized of this matter to review the circumstances of this case and the parenting terms of this Court Order for a determination as to whether a graduation of the Applicant’s parenting time with C.M to the Parenting Plan attached at Schedule “B” to the Court Order reflects C.M.’s best interests.”

8. An Order that in the event Ms. Seidel is unwilling or unable to continue her involvement in this case for any reason, the Respondent may apply to the Court upon a motion to designate another suitable professional to replace her;

9. An Order that, in accordance with paragraph 14 of the Final Order, the Applicant shall be responsible for all fees in relation to the Therapeutic Parenting Counselling, including any fees in connection with any reporting work (e.g. to the parties; to the Court by the Therapeutic Parenting Counsellor); and, if necessary, that those costs/fees be deducted from any support the Applicant receives from the Respondent;

10. An Order that the Applicant shall not to discuss this Honourable Court's decision on this motion, or any other part of this proceeding, with C.M., except as specifically may be directed by C.M.'s counsellor, Andrea Barclay, M.S.W., R.S.W;

11. An Order that, in the event that the Applicant again withholds C.M. from the Respondent in contravention of the then-applicable, court-ordered parenting schedule for a period that exceeds 30 minutes, the Applicant shall be deemed to have automatically forfeited her next scheduled parenting visits with C.M. for both Week 1 and Week 2 of the schedule, and C.M. will be resident with the Respondent during that time;

12. An Order pursuant to section 141 of the Courts of Justice Act and subsection 36(2) of the Children’s Law Reform Act, that the Sheriff of this Honourable Court’s jurisdiction, the Halton Regional Police, the Ontario Provincial Police, and the Royal Canadian Mounted Police, and all enforcement officials to whose attention this Order is brought shall assist, if required, for enforcing the provisions of this Order, and shall specifically take all such action as is required to locate, apprehend and deliver the child to the Respondent, as provided herein, including the power of search and entry at any time.

13. An Order that when in-person school is in session, all pick-ups and drop-offs during times when a transition is to take place shall be done at C.M.'s school with the parent in whose care C.M. is then residing driving him to the school;

14. An Order that, in the event that C.M.'s school is not open/ not "in-person" for any reason, the Respondent shall have the sole authority to determine the location of and who facilitates the parenting transitions;

15. An Order that the Applicant shall not attend at the Respondent's residence unless it is to facilitate C.M.'s parenting time pursuant to paragraph 5, above.

16. An Order providing that for the 2021 school summer break:

(a) The Respondent shall have holiday time with C.M. from July 10, 2021 to July 17, 2021 and from August 7, 20201 to August 14, 2021; and

(b) Provided that Phase Two is in place, the Applicant shall have holiday time with the [sic] C.M. for one week in either July or August (not to overlap with the Respondent’s holiday parenting time), and that the Applicant shall advise the Respondent of her preferred holiday week within five (5) days of Phase Two commencing under the Court Order.

17. A Final Order, in the nature of a "blanket" Order, dispensing with the Applicant's consent for C.M to travel anywhere with the Respondent;

18. An Order that the Applicant check Our Family Wizard daily and respond to a message from the Respondent within 48 hours;

19. An Order granting leave to the Respondent, as follows:

(a) to deliver additional evidence on the issues to be addressed on June 18, 2021 not to exceed 25 pages (exclusive of exhibits), and with leave for the viva voce evidence of the child’s therapist, Andrea Barclay, M.S.W. R.S.W., to be heard at the June 18, 2021 motion with Ms. Barclay to be considered as “the Court’s witness” as opposed to either party’s witness for the purposes of questions that may be put to her on the date of the hearing;

(b) to deliver a Notice of Motion in the form of Form 31: Notice of Contempt Motion, (if the Respondent deems that it is necessary/advisible for a contempt motion to be brought), to be served in accordance with rule 31 of the Family Law Rules, and order at the June 18, 2021 hearing date for the scheduling of a time-table for such contempt hearing;

20. An Order that the Applicant Mother, C.C., shall pay to the Respondent Father, S.C., his costs of this motion, including H.S.T.; and

21. An Order for such further and other relief as counsel may advise and this Honourable Court may permit.

[4] The father has filed a draft Final Order. That document, excluding Schedules “A” and “B” attached thereto, is included in these Reasons for Decision as Appendix “A”.

II. Analysis

The Litigation History

The Trial before and the Judgment of Justice Chozik

[5] After a lengthy trial, Justice Chozik made a Final Order dated January 8, 2021. That Final Order, including Schedule “A” attached thereto, is included in these Reasons as Appendix “B”. The reader should note that all references to the names of the parties and the child have been replaced with initials – C.C. for the mother, S.C. for the father, and C.M. for the child, and further all references to the child’s birthdate have been deleted.

[6] For an overview of what was before Justice Chozik, reference should be had to paragraphs 1 through 6 of Her Honour’s Additional Reasons for Judgment dated May 28, 2021 (“Additional Reasons”), reported at C.C. v. S.C., 2021 ONSC 3899, set out below. Note that the child, C.M., is identified as “N.” in the said Additional Reasons.

[1] The sole issue in this trial was what decision-making and parenting arrangement is in the best interests of the parties’ child, N. (age 10).

[2] The Applicant, N.’s mother, (who I will call the Mother) sought an order for joint custody, parallel decision-making and equal access or parenting time.

[3] The Mother’s position is that she is a loving and engaged parent, to whom N. is closely bonded. She testified that certain concerning post-separation conduct attributed to her is now behind her, and that she is capable of co-parenting. The Mother submits that it is in N.’s best interests to have maximum time with both parents and to maintain the status quo 50/50 parenting schedule that has been in effect since March 2020.

[4] The Respondent, N.’s father, (who I will call the Father) sought an order that he have sole custody and decision-making responsibility. He proposed a parenting schedule whereby N. would spend 5 out of 14 days with his mother. The Father also asked that certain temporary therapeutic interventions be imposed.

[5] The Father’s position is that the Mother’s post-separation conduct, fuelled to some extent by her mental health and personality traits, put N. at risk of emotional and psychological harm. Co-parenting is impossible, and not in N.’s best interests. The order sought by the Father is entirely consistent with the recommendations of Howard Hurwitz, who conducted an exhaustive assessment under s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).

[6] In preliminary Reasons for Judgment dated January 8, 2021, I made the Final Order sought by the Father. I had concluded that it was in N.’s best interest for the Father to have sole decision-making responsibility and an unequal parenting time schedule that resulted in N. spending slightly less than half of his time with the Mother. I also ordered that the temporary therapeutic interventions proposed by the Father be put in place. The Final Order took effect January 11, 2021.

[7] Justice Chozik’s Additional Reasons were thorough and comprehensive. Her Honour outlined the law and the Court’s task at paragraphs 116 through 122 of the Additional Reasons, reproduced below.

[116] Notwithstanding recent legislative changes, there is no dispute that the test to determine decision-making, primary residence and parenting time is the best interests of the child: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16(1); CLRA, s. 24. The best interests test is the only test to be applied. Parental rights, interests and preferences play no role in this determination: Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at pp. 35-36, 44, 57, 117.

[117] Prior to the recent amendments, s. 16(10) of the Divorce Act required the court to give effect to the principle that a child of the marriage should have as much contact with each parent as is consistent with the best interests of the child: Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, at para. 24 [Gordon]; Young, at pp. 117-118.

[118] In s. 16(6), as amended, the heading of “maximum contact” has been removed from the provision, but the wording remains essentially the same:

Parenting time consistent with best interests of child

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

In my view, this change in the wording of the legislation has no impact on the adjudication of the issues between these parties. It has long been established that each case turns on its own unique circumstances. The only issue is the best interests of the child in the specific circumstances of the case. Maximum contact does not – and did not - necessarily mean equal contact: Young, at pp. 44, 52.

[119] The newly enacted s. 16(2) of the Divorce Act explicitly requires that a court’s assessment of the best interests of the child give primary consideration to a child’s “physical, emotional and psychological safety, security and well-being.” The factors to be taken into account to determine a child’s best interests under the Divorce Act mirror those that are set out in s. 24 of the CLRA.

[120] Section 16 of the amended Divorce Act provides that:

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(3) In determining the best interests of the child, the court shall consider 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.

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

(5) In 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 child under a contact order.

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

[121] The list of factors contained in section 16 of the Divorce Act and section 24 of the CLRA is not an exhaustive list of considerations. All of the factors relevant to the specific case must be considered: Allen v. Wu, 2011 ONSC 6813, 13 R.F.L. (7th) 284, at para. 74; Scott v. Chenier, 2015 ONSC 7866, at para. 19. The court’s assessment of the best interests of the child is to be a holistic one: S.S. v. R.S., 2021 ONSC 2137, at paras. 30-36. Ultimately, the best interests of the child are paramount to the determination of decision-making responsibility, principal residence and parenting time.

[122] My task then is to assess the evidence adduced to determine what arrangement for decision-making, primary residence and parenting time is in the best interests of N., having regard to the factors identified above. With that in mind, I now review the key evidence bearing on that issue.

[8] Justice Chozik concluded that the mother’s evidence about her willingness to co-parent the child with the father was neither credible nor reliable. That evidence was flatly rejected by the Court – paragraph 168 of the Additional Reasons, set out below.

[168] In sum, on her evidence alone, I am not satisfied that the Mother could or would co-parent N. with the Father. She continues to view the Father as a bad parent and an abuser. The evidence of all of the professionals involved with this family supports this conclusion. I concluded that the Mother’s evidence that she has put the past behind her and is prepared and able to co-parent with the Father is not credible or reliable.

[9] Her Honour found that the evidence was overwhelmingly in favour of an Order that the father have sole decision-making responsibility and be the primary residential parent for the child – paragraph 180 of the Additional Reasons, found below.

[180] The evidence in this case overwhelmingly supports the recommendations of Mr. Hurwitz that the Father have sole decision-making responsibility and primary residence with respect to N. For these reasons, I concluded that a parallel decision-making regime is not in N.’s best interests. It is in N.’s best interests that the Father have sole decision-making responsibility.

[10] Justice Chozik concluded that it was not in the best interests of the child to have equal time with both parents. Clause 195 of Her Honour’s Additional Reasons is set out below.

[195] In this case, I find that the Mother’s past conduct was directly relevant to her ability to parent. She put N. directly in the conflict, which was harmful to him. She did not, and continues not to, support N.’s relationship with his father. She continues to fuel conflict. Although N. was well adjusted at this time, the potential for a tsunami of unrest is just under the surface of what appears to be calm. I am concerned that the calm will break quickly after the conclusion of these proceedings and that N. will be thrown by the Mother into a tumultuous ocean. For these reasons, I conclude that it is in N.’s best interests that the parenting schedule be 5 out of 14 days for the Mother, as recommended by Mr. Hurwitz.

[11] Justice Chozik found that a therapeutic parenting coach was “essential” for the family – paragraph 214 of the Additional Reasons, reproduced below.

[214] In my view, a therapeutic parenting coach is essential to protect N. from harmful conduct, to help the Mother de-escalate parenting crises and to intervene should alienating behaviour continue. Without that immediate but short-term therapeutic parenting intervention in place, the risk that the Mother will continue to engage in conflict over minor parenting issues, mismanage N.’s behaviours in light of her own dysregulation, and engage N. in the conflict to his detriment is too great.

[12] Set out here is Justice Chozik’s penultimate conclusion, at paragraph 220 of the Additional Reasons.

[220] In conclusion, I find that it is not in N.’s best interests that there be parallel decision-making or an equal parenting time schedule. I have concluded that if any of the decision-making is left to the Mother, this will likely lead to continued conflict. I find that the Mother is likely to continue to involve N. in parental conflict. Given the views of the Father and her marriage that she continues to hold, the Mother is not able to co-parent with the Father. It is therefore in N.’s best interests that the Father have sole decision-making responsibility, primary residence and slightly more than half of the parenting time. It is also in N.’s best interests that therapeutic interventions be put in place, as suggested by Mr. Hurwitz.

The Court of Appeal for Ontario

[13] The mother’s attempt to have the Final Order made by Justice Chozik stayed pending an appeal was unsuccessful – the decision of Justice Roberts of the Court of Appeal for Ontario dated February 18, 2021.

[14] The mother’s subsequent attempt to have Justice Roberts reconsider the decision, by improperly emailing the Justice directly, was met with a short Endorsement, “no further materials will be accepted or reviewed”.

Events Post-the Final Order of Justice Chozik

[15] What followed the Final Order of Justice Chozik was surely not what was intended by the Court or by the father. What followed was more chaos and several more Court attendances.

[16] Ultimately, Justice Chozik made an Endorsement on May 4, 2021, wherein Her Honour directed a timetable for the hearing of the father’s “motion with respect to alleged non-compliance by the [mother] with the Final Order dated January 8, 2021”.

[17] The hearing before this Court on June 22, 2021 was, effectively, the motion identified by Justice Chozik in that May 4th Endorsement. Her Honour made a further Endorsement on May 31st which, in part, dealt with the motion that was heard by this Court on June 22, 2021.

[18] On June 8, 2021, Justice Chown made a scathing Endorsement against the mother. His Honour found that the mother had repeatedly withheld the child in contravention of the January 8, 2021 Final Order of Justice Chozik. As a result, His Honour made the difficult decision to not only order that the child be returned forthwith to the father but that, pending the resolution of the motion that was heard by this Court on June 22, 2021 (originally returnable on June 18th but adjourned briefly by this Court at the request of the mother), the mother’s parenting time under the said Final Order was suspended; see paragraph 15, clause b, of Justice Chown’s Endorsement.

[19] It should be observed that the adjournment of the father’s motion on June 18, 2021 was a significant indulgence granted to the mother by this Court. Despite knowing about the father’s motion for a long time, the mother, by June 18th, had not filed proper materials in response thereto. Further, she had not given the other side advance notice of her adjournment request, although in fairness to her she may not have been able to do so since it appeared that the primary reason for the adjournment request was an injury to her dog that occurred the very morning of June 18th. In any event, the adjournment was granted because this Court recognized that the motion was seeking significant relief, and the mother was acting for herself, and a few extra days was not unreasonable to honour this Court’s duty to safeguard procedural fairness. To the credit of counsel for the father, the adjournment was not really opposed.

The Hearing Before This Court on June 22, 2021

Items Not in Dispute

[20] There is no dispute between the parties that this Court has the jurisdiction to hear and decide the father’s Notice of Motion dated June 11, 2021. The Final Order of Justice Chozik dated January 8, 2021 “provided a safety latch…for C.M. and for [the father] to trigger an immediate review of the parenting terms of the Final Order if C.C.’s parenting of C.M. occasioned further harm to him” – paragraph 16 of the factum filed on behalf of the father dated June 11, 2021. I agree with that submission. Although the mother has not argued otherwise, this Court should explain to her the basis of that submission. It is grounded in paragraph 17 of the Final Order of Justice Chozik, set out below.

17. In the event that significant concerns are raised regarding the Applicant’s parenting by the Therapeutic Supervisor and/or the Therapeutic Parenting Counsellor, the parties shall then return to Court to review the parenting terms of this Court Order, for a determination by the Court as to whether such terms continue to reflect what is in N’s. best interests.

[21] There have been “significant concerns” that have been “raised regarding the Applicant’s parenting”; in fact there have been significant concerns that have been found to be legitimate by the Court regarding the mother’s parenting – the Endorsement of Justice Chown dated June 8, 2021. That those significant concerns have not been raised by the “Therapeutic Supervisor and/or the Therapeutic Parenting Counsellor” is no obstacle to this Court dealing with the father’s motion at this time. After all, it is the mother who has failed or refused to cooperate with the appointment of the said counsellor.

[22] There is equally no dispute between the parties that this Court may seize itself of all issues in this case, including the selection of the therapeutic parenting counsellor as ordered by Justice Chozik as part of the January 8, 2021 Final Order.

The Nature of the Hearing of the Motion

[23] At the hearing of the father’s motion on June 22, 2021, which took place via Zoom, counsel for the father made submissions, and the mother made submissions, and each side questioned Andrea Barclay, the child’s professional therapist, who was called to provide viva voce evidence as a witness for the Court (as opposed to being a witness for either side).

[24] After June 22nd, this Court directed that each side refile all of his/her materials that had been delivered through the Court’s electronic portal prior to the hearing, but this time on a USB flash drive or stick, as this Court wanted another method to carefully review the evidence while the decision was under reserve. Both sides complied with this Court’s request, although the mother chose to include some materials on her USB that had not been properly filed before the hearing took place. Nonetheless, I read everything contained on both USBs.

[25] Unfortunately, during the period of reservation, the mother sent numerous messages to Court staff, attempting to have me make orders in the interim. The Office of the Regional Senior Justice was forced to intervene.

[26] In any event, even the ungovernable and the incorrigible among us deserve to have child-focussed decisions made on the proper basis, that is the best interests of the child. That is the only barometer that matters in the eyes of this Court.

The Evidence of Andrea Barclay

[27] On June 22nd, Ms. Barclay, who had also provided evidence at the trial before Justice Chozik, and who provided written reports as part of the record on the father’s motion, testified that what has transpired since the Final Order dated January 8, 2021 gives her great concern about the child’s mental and physical health.

[28] According to Ms. Barclay, the child, who is already at risk of attachment difficulties and maladjustment because of him having been adopted and because of his diagnosed Attention Deficit and Hyperactivity Disorder, needs predictability. In short, the parenting schedule must be followed. I agree.

The Position of the Mother

[29] The mother asks that this Court not decide the father’s motion without input from the Office of the Children’s Lawyer, something expressly not supported by Ms. Barclay. I decline to delay this matter any further.

[30] The mother, in her submissions, pleaded with this Court to give her “one last chance”. She argued that the child was very upset about the sudden departure from the week-about parenting regime that resulted from the January 8, 2021 Final Order, a sentiment not shared by Ms. Barclay.

[31] The mother argued that Ms. Joanna Seidel should not be the therapeutic parenting counsellor, as suggested by the father, because she is too expensive.

[32] At the hearing on June 22nd, the mother made some remarks that were very concerning to this Court. The following are some examples.

[33] She stated that she was not sure that she had actually withheld the child from the father if in fact the child had told her that he did not want to return to his father’s place. Wrong. The child is ten years old. The Final Order of Justice Chozik is not merely a suggested template, variable at the whim of the mother if she is doing what she believes the child wants.

[34] The mother stated that, on May 20, 2021, the father had screamed and yelled at her. If true, that has no relation to her repeated breaches of the Final Order as found by Justice Chown.

[35] The mother stated that, after January 8, 2021, the child made disclosures to her about being yelled at and grounded by the father. She feared for her safety and that of the child, she said. Thus, “I decided to keep him” after the alleged incident on May 20th, she stated. If true, then she should have sought the urgent approval of the Court to do so.

[36] The mother stated that “my decision to withhold [the child] came from a place of love and protection”. Maybe, but that, if true, cannot justify the mother’s actions, especially where no attempt was made by her to seek urgent Court intervention.

[37] The mother stated that she wants to bring a Motion to Change the Final Order of Justice Chozik. The father’s counsel responded by inviting this Court to consider making an order prohibiting the mother from being able to do so without leave of the Court. I decline to issue that prohibition, but I am thoroughly disappointed that the mother would expose the family to yet more litigation mere months after a Final Order was made and in the midst of an environment, caused by the mother herself, where the said Order has not even had a chance to take root.

This Court’s Findings

The Best Interests of the Child

[38] What is in the best interests of this child, C.M.? Stability, predictability, and adherence to a schedule are crucial, in my opinion. I accept the evidence of Ms. Barclay in that regard, and I reject any suggestion by the mother that Ms. Barclay is in any way biased against her.

One Judge for this Case, and the Therapeutic Parenting Counsellor

[39] Paragraphs 1 through 4 and 6 through 8 of the draft Final Order filed on behalf of the father, Appendix “A” to these Reasons, are designed to (i) provide this family with consistency in terms of who the judge will be for future Court attendances and (ii) avoid any further delay in the satisfaction of what was ordered by Justice Chozik many months ago – the appointment of a therapeutic parenting counsellor. Those are good things, in my view. Thus, those clauses of the draft Final Order are appropriate. They shall issue.

[40] I am not persuaded that Ms. Seidel should not be the person appointed because the mother cannot afford it. She has already helped herself at the expense of the father by failing or refusing to pay costs ordered against her previously. She is receiving a very healthy amount of support per month. She is simply going to have to make further sacrifices in order to benefit the child and the family as a whole.

Not Involving the Child in Litigation Matters

[41] Paragraph 9 of Appendix “A” is designed to prevent the mother from improperly involving the child in litigation matters. That is a good thing, in my view, but I think that it should apply to both parents equally, despite there being no suggestion to date that the father has been irresponsible in this regard. Thus, that clause of the draft Final Order filed on behalf of the father shall be amended so that it refers to both parties.

Encouraging the Mother to Strictly Adhere to the Parenting Schedule

[42] Paragraphs 10 and 11 of Appendix “A” are designed to avoid any further withholding of the child incidents instigated by the mother, and we know from the Endorsement of Justice Chown and from the evidence on the motion that the mother needs to be incentivized to respect Court orders. Thus, those clauses of the draft Final Order are appropriate. They shall issue.

Exchanges of the Child

[43] Paragraphs 12 through 14 of Appendix “A” are not controversial. They deal with transitioning the child from one caregiver to the other. They shall issue.

Summer Parenting Time

[44] Paragraph 15 of Appendix “A”, to the extent that it deals with the remaining part of this summer, is reasonable. It provides the child with quality summer holiday time with each parent in August 2021, on certain conditions pertaining to the mother.

[45] I need, however, some further assistance from both sides with regard to clause (b) of paragraph 15. It seems to me that, as currently worded, the clause would not result in the mother having any extended summer contact with the child this year (because of the reference to “Phase Two” being in place). I am not sure that I agree with that. This Court would like to hear if the father is prepared to amend that clause.

[46] Either side may contact the trial office in Milton to schedule a brief telephone or Zoom call to discuss that issue further; thirty minutes total should be sufficient time for that discussion.

Dispensing with the Mother’s Consent for the Father Travelling with the Child

[47] Paragraph 16 of Appendix “A” (regarding travel with the child) is consistent with the father’s current status under the Final Order of Chozik J., and thus that clause of the draft Final Order is appropriate. It shall issue.

Communication Between the Parents

[48] Paragraph 17 of Appendix “A” is designed to foster more timely communication between the parties through Our Family Wizard, and that is a good thing, but I think that it should apply to both parents equally, even if the father to date has not been delinquent in responding promptly to the mother’s messages. Thus, that clause of the draft Final Order filed on behalf of the father shall be amended so that it refers to both parties.

A Potential Contempt Motion to be Filed by the Father

[49] Paragraph 19 of Appendix “A” is unnecessary and shall not be included in the Order that is issued in conjunction with these Reasons.

[50] If the father wishes to bring a contempt motion, he of course may do so in accordance with the Family Law Rules. If and when that motion is filed, it will be brought to my attention as I am seized of all further issues in this proceeding. At that time, I will give directions for any further filings on behalf of each side.

Costs of the Motion

[51] The final paragraph of the draft Final Order filed on behalf of the father (regarding costs) will be subject to hearing submissions from both sides. Those submissions shall be heard orally and can be delivered briefly during the same Court appearance that is scheduled to deal with clause (b) of paragraph 15 of Appendix “A”.

A Reduction in the Mother’s Parenting Time with the Child

[52] That leaves just paragraph 5 of Appendix “A”, which paragraph seeks to vary paragraphs 15, 17, and 18 of the Final Order made by Justice Chozik (attached to these Reasons as Appendix “B”).

[53] The “Decision-Making” clauses of that paragraph 5 (clauses 1 through 3) cannot be controversial as they are what was ordered by Justice Chozik.

[54] With regard to clauses 10 and following of paragraph 5, that therapeutic parenting counselling is in the best interests of this child and this family as a whole, and all of the necessary incidentals to making that happen, has already been determined by Justice Chozik, and thus those provisions, similarly, cannot be controversial.

[55] What are hotly contested by the mother is (i) the idea of any further supervised parenting time between her and the child and (ii) the reduction of any of her parenting time with the child.

[56] In her submissions at Court on June 22nd, the mother stated that she would never again put the child through supervised parenting time because he hated it. It would be “devastating” for him, she said.

[57] To be blunt, I do not trust the mother’s reporting of the child’s sentiments. That reporting, I think, is more strategic than anything else. Ms. Barclay’s evidence, which evidence I accept, is often at odds with that of the mother in terms of how the child feels about certain things. In fact, Ms. Barclay testified that C.M.’s presentation and his statements simply do not match what the mother reports to Ms. Barclay, and that has been a “continuing pattern” in Ms. Barclay’s considerable experience with this family.

[58] I simply disagree with the mother’s position about her parenting time with the child. Paragraph 5 of Appendix “A” shall issue as presented.

[59] Although the mother was not clear in this regard, I can only assume that she takes serious issue with clause 15, in particular, of paragraph 5 of Appendix “A”. That clause means that, over a two-week period, while the mother is engaged with the therapeutic parenting counsellor, she will have in-person parenting time with the child a total of three overnights (Wednesday overnight in week one and Friday and Saturday overnights in week two).

[60] That, in my opinion, is a more than modest, but less than drastic or unreasonable, reduction from the 5 out of 14 nights contemplated in the Final Order of Justice Chozik dated January 8, 2021 (see section 5.1 of Schedule “A” to that Final Order). It is a measured response to the mother’s habitual non-adherence to that Final Order, and it is consistent with the serious findings made by Justice Chown in His Honour’s June 8, 2021 Endorsement. It is also consistent with the evidence of the child’s therapist, Ms. Barclay, who testified that the previously ordered increase in parenting time between the child and the father did not result in the child exhibiting or reporting any distress as observed by Ms. Barclay.

[61] I have turned my mind to the question of whether this is an attempt by the father to punish the mother at the expense of the child. I think not. It is meant to be temporary. It is incremental. It, I think, is in the overall best interests of the child.

[62] There is clear authority, both legislative and jurisprudential, for what the father is seeking and what this Court has decided to order.

[63] In terms of the statutory authority, that is found in clause (c) of subsection 16(3) of the Divorce Act, R.S.C., 1985, c. 3, as amended. The mother’s repeated withholding of the child is a clear sign of her unwillingness to support the development and maintenance of the child’s relationship with the father, and that unwillingness is relevant to the best interests of the child in the context of the making of a parenting or contact order.

[64] In terms of the jurisprudential authority, one example is the decision of Justice Kristjanson in Cirinna v. Cirinna, 2018 ONSC 4831. Set out below is paragraph 1 of that decision.

This is the fourth motion brought by the father in three months dealing with access. Ms. Cirinna has unilaterally denied access by Mr. Cirinna to their seven year old son GC. The mother has flagrantly disobeyed numerous court orders on access, including consent orders. It is in GC’s best interests to have a full relationship with his father, which Ms. Cirinna is determined to thwart. GC has significant behavioural problems which are exacerbated by the continuing conflict between the mother and the father. The mother’s defiance of court orders and unilateral withholding of GC, with the associated conflict, are harming GC and have the potential to cause long-term harm. The family must recognize that GC needs his parents to cease this litigation and to focus on their son. I exercise my discretion to change GC’s principal residence from the mother to the father, expand the father’s access, and set a schedule for an urgent trial on custody and access issues.

[65] C.C., like the mother in Cirinna, supra, has flagrantly and repeatedly disobeyed a Court Order, unilaterally denying S.C. his parenting time. In Cirinna, supra, the mother’s conduct led to a much more significant variation of the parenting regime in place than what has been ordered by this Court in our case.

III. Conclusion

The Order of this Court

[66] In very large part, the father’s motion is granted. The draft Final Order filed on behalf of the father, including Schedules “A” and “B” attached thereto (“Appendix “A” to these Reasons), shall issue, subject only to the few revisions noted above in these Reasons.

[67] The Final Order of Justice Chozik dated January 8, 2021 and the Temporary Order of Justice Chown dated June 8, 2021 are varied accordingly. To be more precise, the said Final Order is replaced with the within Order, and the said Temporary Order, to the extent that it suspended contact between the mother and the child, is no longer operative. The within Order is that which governs.

[68] In summary, the mother has failed to comply with the Final Order of Justice Chozik dated January 8, 2021. She has engaged in repeated behaviour that has placed the child at risk by failing or refusing to return the child to the father when she was required to do so, sacrificing the structured predictability that this child needs. She has proven herself to be contemptuous or, at the very least, disrespectful of Court orders.

[69] The Order made herein is strictly necessary in the best interests of C.M. The father has established that on a balance of probabilities.

(“Original signed by”)

Conlan J.

Released: August 9, 2021

Appendix “A”

1. I will remain seized of the parenting issues in this case in terms of any reviews or returns to court. If I am unavailable to hear the matter in exigent circumstances, the parenting issues may go before another judge in the Ontario Superior Court of Justice in Milton.

2. Within five (5) business days of the release of this decision, the parties shall sign an engagement letter/service agreement with Joanna Seidel for her to act as the Therapeutic Parenting Counsellor under the Final Order of Justice Chozik dated January 8, 2021 (the "Final Order") in the form of the attached Schedule "A" with any modifications as may be sought by Ms. Seidel;

3. Until the Applicant Mother, C.C., cooperates with signing the engagement letter/service agreement with Ms. Seidel and attends for her intake appointment as directed by Ms. Seidel, the Order of Justice Chown, dated January 8, 2021, shall remain in place with its suspension of the Applicant's parenting time and with the frequency and duration of supervised phone calls between the Applicant and the child, C.M., (born […], 2010). Upon compliance with these points, the Applicant's parenting time will recommence in accordance with what is set out in paragraph 15 of the Final Order at paragraph 5 below;

4. The Applicant shall pay for the cost/fees of the supervised phone calls pursuant to Justice Chown's Order. If necessary, the cost/fees shall be deducted from any support she receives from the Respondent Father, S.C.;

5. Paragraphs 15, 17, and 18 of the Final Order shall be deleted and replaced, such that the Final Order now reads as follows:

Decision Making

1. The Respondent shall be obligated to solicit the input and opinions of the Applicant in relation to any and all major decisions affecting C.M., born […], 2010 (“C.M.”) including those decisions related to his physical and psychological health, his education, cultural and religious training and experiences, any extracurricular activities that may affect the time spent by C.M. with the other parent, and any other major decision affecting C.M.’s general welfare.

2. Such communication shall take place through written correspondence only, in order to document the process and to minimize the probability of C.M.’s exposure to any parental tension and/or conflict.

3. In the event of a dispute in relation to any major decision that the parents are unable to resolve independently, the Respondent shall have the final decision-making authority.

Parenting Time and Therapeutic Supervision

Phase One: Supervised Parenting Time

4. For a period of six (6) weeks commencing the completion of the selection process for the therapeutic supervisor outlined in the following paragraphs, the Applicant shall have supervised therapeutic parenting time with C.M. to take place weekly on Tuesday and Thursday from the pick-up from school to 8:00 p.m. and on Saturdays from 10:00 a.m. to 6:00 p.m. With the exception of pick-ups from school, all transitions shall take place at the Respondent's residence and shall be facilitated by a third party arranged by the Applicant.

5. The therapeutic supervisor shall be a mental health professional (i.e., social worker, psychologist, or similar) (“MHP”) with specialized expertise and experience in custody and access/post-separation parenting issues.

6. The therapeutic supervision shall include a teaching/coaching component, and the therapeutic supervisor shall provide parenting guidance, assistance, and intervention as necessary.

7. The Applicant shall be responsible for all fees in relation to the therapeutic supervision, including any fees in connection with any reporting work (e.g. to the parties; to the court).

8. Within seven (7) days of the date of this Order, the Applicant shall provide the name(s) of a proposed therapeutic supervisor(s) for the Respondent's consideration and the Respondent/Father shall within three (3) days of receipt of those names advise whether he is agreeable to any such proposed therapeutic supervisor(s) or not, and, if not, then within thirty six (36) hours, he will propose to the Applicant three (3) names of other potential therapeutic supervisor(s). In the event the parties cannot agree upon the therapeutic supervisor within fourteen (14) days of the commencement of this selection process, then the parties shall ask the Superior Court of Justice in Milton to determine the matter upon a motion based solely on written submissions from the parties not to exceed three (3) pages each exclusive of exhibits.

9. The therapeutic supervisor shall provide weekly reports to both parties reporting upon the supervised parenting time.

Phase Two: Therapeutic Parenting Counselling

10. At the conclusion of the six (6) week period, and providing no significant concerns are raised regarding the Applicant's parenting of C.M., the requirement for therapeutic supervision shall end and the Applicant shall then retain the services of an MHP with specialized expertise and experience in custody and access/post-separation parenting issues to act as therapeutic parenting counsellor for her specifically in connection with matters involving her parenting of C.M. (the “Therapeutic Parenting Counsellor”). Such therapeutic counselling services shall be in addition to any other therapy that that Applicant happens to be engaged in.

11. To select the Therapeutic Parenting Counsellor, within fourteen (14) days of the date of this Order, the Applicant shall provide the name(s) of a proposed therapeutic parenting counsellor for the Respondent's consideration and the Respondent shall within three (3) days of receipt of those names advise whether he is agreeable to any such proposed therapeutic parenting counsellor(s) or not, and if not then within thirty six (36) hours he will propose to the Applicant three (3) names of other potential therapeutic parenting counsellor(s). In the event the parties cannot agree upon the therapeutic parenting counsellor within twenty one (21) days of the commencement of this selection process then the parties shall ask the Superior Court of Justice in Milton to determine the matter upon a motion based solely on written submissions from the parties, not to exceed three (3) pages each exclusive of exhibits.

12. The Applicant shall meet with the Therapeutic Parenting Counsellor on a weekly basis for a period of not less than five (5) months. The Respondent shall be a liberty to communicate with the Therapeutic Parenting Counsellor to apprise him or her of any concerns regarding the Applicant's parenting of C.M.. The Therapeutic Parenting Counsellor may obtain information from relevant sources, including C.M.'s counsellor and the Applicant’s own counsellor (if any), and may consult such persons and read reports, records or documents as she or he deems necessary.

13. The Therapeutic Parenting Counsellor shall provide the Applicant and Respondent with weekly reports regarding the Applicant's mental well-being and parenting.

14. The Applicant shall be responsible for all fees in relation to the therapeutic parenting counselling, including any fees in connection with any reporting work (e.g. to the parties; to the court).

15. During the period that the Applicant is meeting weekly with the Therapeutic Parenting Counsellor in accordance with the preceding paragraphs, the Applicant shall have parenting time with C.M. overnight from Wednesday at 4:30 p.m. to Thursday at 9:00 a.m. in Week One and Friday from 4:30 p.m. to Sunday 5:30 p.m. in Week Two and shall reside with the Respondent at all other times regardless of holidays unless the parties otherwise agree in writing and subject only to the 2021 summer holiday schedule set out in the Court Order. The Applicant shall have phone access with C.M. for no more than 15 minutes on Sundays in Week One and Wednesdays in Week Two;

16. The Applicant shall not speak to, or in the presence of, C.M. in a derogatory manner concerning the other parent, nor permit anyone else to do so. The Applicant shall not do anything that would injure the opinion of C.M. as to his father or which would impair the natural development of C.M.'s love and response for his father. The Applicant shall communicate to C.M. that she is supportive of C.M.'s relationship with his father and that she is fully supportive of the terms of this order as being in the best interests of C.M..

17. Within 30 days of the completion of Phase Two: Therapeutic Parenting Counselling, the parties shall attend before the judge seized of this matter to review the circumstances of this case and the parenting terms of this Court Order for a determination as to whether a graduation of the Applicant's parenting time with C.M. to the Parenting Plan attached at Schedule "B" to the Court Order reflects C.M.'s best interests.

18. The Applicant shall pay the Respondent's costs of this matter in an amount agreed upon between the parties; or, failing agreement, in an amount fixed by the Court, following written costs submissions by the parties.

19. In the event that the Applicant does not cooperate with the Therapeutic Parenting Counselling requirements under paragraph 12 of the Final Order, the Applicant's parenting time shall be automatically suspended and shall remain suspended until it is reinstated by Court Order following a motion brought by the Applicant to the court for such purpose;

20. In the event Ms. Seidel is unwilling or unable to continue her involvement in this case, the Respondent may bring a motion to designate another suitable professional to replace her;

21. In accordance with paragraph 14 of the Final Order, the Applicant shall be responsible for all fees in relation to the Therapeutic Parenting Counselling, including any fees in connection with any reporting work (e.g. to the parties; to the Court by the Therapeutic Parenting Counsellor). If necessary, those costs/fees shall be deducted from any support the Applicant receives from the Respondent.

22. The Applicant shall not discuss this decision, or any other part of this proceeding, with C.M., except as specifically directed by C.M.'s counsellor, Andrea Barclay, M.S.W., R.S.W;

23. In the event that the Applicant withholds C.M. from the Respondent in contravention of the then-applicable court-ordered parenting schedule for a period exceeding 30 minutes, the Applicant shall be deemed to have automatically forfeited her next scheduled parenting visits with C.M. for both Week 1 and Week 2 of the schedule, and C.M. will be resident with the Respondent during that time;

24. Pursuant to section 141 of the Courts of Justice Act and subsection 36(2) of the Children’s Law Reform Act, the Sheriff of this Court’s jurisdiction, the Halton Regional Police, the Ontario Provincial Police, and the Royal Canadian Mounted Police, and all enforcement officials to whose attention this Order is brought shall assist, if required, for enforcing the provisions of this Order, and shall specifically take all such action as is required to locate, apprehend and deliver the child to the Respondent, as provided herein, including the power of search and entry at any time.

25. When in-person school is in session, all transitions (pick-ups and drop-offs) shall be done at C.M.'s school, with the parent in whose care C.M. is then residing driving him to the school;

26. In the event that C.M.'s school is not open/not "in-person" for any reason, the Respondent shall have the sole authority to determine the location of and who facilitates the parenting transitions;

27. The Applicant shall not attend at the Respondent's residence unless it is to facilitate C.M.'s parenting time pursuant to paragraph 15 of the Final Order at paragraph 5, above.

28. For the 2021 School Summer Break:

(a) the Respondent shall have holiday time with C.M. from July 10, 2021 to July 17, 2021 and from August 14, 2021 to August 21, 2021; and

(b) provided that Phase Two is in place, the Applicant shall have holiday time with C.M. for one week in either July or August (to not overlap with the Respondent's holiday parenting time). The Applicant shall advise the Respondent of her preferred holiday week within five (5) days of Phase Two commencing under the Court Order.

16. The Applicant Mother's consent for the Respondent Father to travel anywhere with C.M. is dispensed with;

17. The Applicant shall check Our Family Wizard daily and respond to the Respondent's messages within 48 hours;

18. The Respondent's contempt motion to address the Applicant's non-compliance with various court orders and directions shall proceed on the following timelines and procedure:

a. the motion shall be heard on ______________;

b. the Respondent shall serve/file his Form 31: Notice of Contempt Motion, affidavit, and any collateral affidavits upon which he intends to rely, on or before _______________;

c. the Applicant shall serve/file her responding motion materials, including her affidavit and any collateral affidavits upon which she intends to rely, on or before ________________;

d. the Respondent shall serve/file his reply affidavit on or before ________________;

e. each party's factum shall be served and filed (electronic version only, with cases hyperlinked) by _________________;

f. the dates and procedure as set out herein shall not be adjusted or changed except on consent via 14B motion.

20. The Applicant shall pay to the Respondent his costs of this motion, in the amount of _____________ inclusive of H.S.T.

Appendix “B”

Decision Making

1. The Respondent shall be obligated to solicit the input and opinions of the Applicant in relation to any and all major decisions affecting C.M., born […], 2010 (“C.M.”) including those decisions related to his physical and psychological health, his education, cultural and religious training and experiences, any extracurricular activities that may affect the time spent by C.M. with the other parent, and any other major decision affecting C.M.’s general welfare.

2. Such communication shall take place through written correspondence only, in order to document the process and to minimize the probability of C.M.’s exposure to any parental tension and/or conflict.

3. In the event of a dispute in relation to any major decision that the parents are unable to resolve independently, the Respondent shall have the final decision-making authority.

Parenting Time and Therapeutic Supervision

Phase One: Supervised Parenting Time

4. For a period of six (6) weeks commencing the completion of the selection process for the therapeutic supervisor outlined in the following paragraphs, the Applicant shall have supervised therapeutic parenting time with C.M. to take place weekly on Tuesday and Thursday from the pick-ups from school, all transitions shall take place at the Respondent’s residence and shall be facilitated by a third party arranged by the Applicant.

5. The therapeutic supervisor shall be a mental health professional (i.e., social worker, psychologist, or similar) (“MHP”) with specialized expertise and experience in custody and access/post-separation parenting issues.

6. The therapeutic supervision shall include a teaching/coaching component, and the therapeutic supervisor shall provide parenting guidance, assistance, and intervention as necessary.

7. The Applicant shall be responsible for all fees in relation to the therapeutic supervision, including any fees in connection with any reporting work (e.g. to the parties; to the court).

8. Within seven (7) days of the date of this Order, the Applicant shall provide the name(s) of a proposed therapeutic supervisor(s) for the Respondent’s consideration and the Respondent/Father shall within three (3) days of receipt of those names advise whether he is agreeable to any such proposed therapeutic supervisor(s) or not, and, if not, then within thirty six (36) hours, he will propose to the Applicant three (3) names of other potential therapeutic supervisor(s). In the event the parties cannot agree upon the therapeutic supervisor within fourteen (14) days of the commencement of this selection process, then the parties shall ask the Superior Court of Justice in Milton to determine the matter upon a motion based solely on written submissions from the parties not to exceed three (3) pages each exclusive of exhibits.

9. The therapeutic supervisor shall provide weekly reports to both parties reporting upon the supervised parenting time.

Phase Two: Therapeutic Parenting Counselling

10. At the conclusion of the six (6) week period, and providing no significant concerns are raised regarding the Applicant’s parenting of C.M., the requirement for therapeutic supervision shall end and the Applicant shall then retain the services of an MHP with specialized expertise and experience in custody and access/post-separation parenting issues to act as therapeutic parenting counsellor for her specifically in connection with matters involving her parenting of C.M. (the “Therapeutic Parenting Counsellor”). Such therapeutic counselling services shall be in addition to any other therapy that that applicant happens to be engaged in.

11. To select the Therapeutic Parenting Counsellor, within fourteen (14) days of the date of this Order, the Applicant shall provide the name(s) of a proposed therapeutic parenting counsellor for the Respondent’s consideration and the Respondent shall within three (3) days of receipt of those names advise whether he is agreeable to any such proposed therapeutic parenting counsellor(s) or not, and if not then within thirty six (36) hours he will propose to the Applicant three (3) names of other potential therapeutic parenting counsellor(s). In the event the parties cannot agree upon the therapeutic parenting counsellor within twenty on (21) days of the commencement of this selection process then the parties shall ask the Superior Court of Justice in Milton to determine the matter upon a motion based solely on written submission from the parties, not to exceed three (3) pages each exclusive of exhibits.

12. The Applicant shall meet with the Therapeutic Parenting Counsellor on a weekly basis for a period of not less than five (5) months. The Respondent shall be a liberty to communicate with the Therapeutic Parenting Counsellor to apprise him or her of any concerns regarding the Applicant’s parenting of C.M. The Therapeutic Parenting Counsellor may obtain information from relevant sources, including C.M.’s counsellor and the Applicant’s own counsellor (if any), and may consult such persons and read reports, records or documents as she or he deems necessary.

13. The Therapeutic Parenting Counsellor shall provide the Applicant and Respondent with weekly reports regarding the Applicant’s mental well-being and parenting.

14. The Applicant shall be responsible for all fees in relation to the therapeutic parenting counselling, including any fees in connection with any reporting work (e.g. to the parties; to the court).

15. During the period that the Applicant is meeting weekly with the Therapeutic Parenting Counsellor in accordance with the preceding paragraphs, the parties shall follow the Parenting Plan attached at Schedule A, including (without limitation) in connection with the parenting schedule and also with respect to its terms regarding decision-making.

16. The Applicant shall not speak to, or in the presence of, C.M. in a derogatory manner concerning the other parent, nor permit anyone else to do so. The Applicant shall not do anything that would injure the opinion of C.M. as to his father or which would impair the natural development of C.M.’s love and response for his father. The Applicant shall communicate to C.M. that she is supportive of C.M.’s relationship with his father and that she is fully supportive of the terms of this order as being in the best interests of C.M.

17 In the event that significant concerns are raised regarding the Applicant’s parenting by the Therapeutic Supervisor and/or the Therapeutic Parenting Counsellor, the parties shall then return to Court to review the parenting terms of this Court Order, for a determination by the Court as to whether such terms continue to reflect what is in C.M.’s best interests.

18. In the event that no review has been commenced during the currency of the period above, then the parties shall continue to follow the Parenting Plan attached at Schedule A, including (without limitation) in connection with the parenting schedule and also with respect to its terms regarding decision-making.

19. The Applicant shall pay the Respondent’s costs of this matter in an amount agreed upon between the parties; or, failing agreement, in an amount fixed by the Court, following written costs submissions by the parties.

Schedule “A”

1. PRINCIPLES

1.1 The Parenting Plan is based on the following principles:

(a) That N.C. enjoys a positive relationship with both parents both at the present time and in the future.

(b) The parents be obligated to respect the privacy of the other parent and, as such, refrain from engaging N.C. in any discussion or questioning about the other parent’s personal life or activites.

(c) The parents be obligated to refrain from any form of interference, direct or indirect, open or subtle, into the life, activities, or routines of the other parent. In this regard, neither parent schedule medical or dental appointments or any other appointments or activities for N.C. requiring his active involvement or involvement by the other parent during periods in which he is in the care of the other parent, without consultation and consent from the other parent.

(d) The parents be obligated to make all possible practical efforts to ensure N.C.’s attendance at any and all structured activities or special occasions involving his peers and/or extended family. In facilitating same, “make-up time” is discouraged, except in special circumstances, in order to ensure continuity of N.C.’s schedule of residence and routines.

2. PARENTAL COMMUNCATION

2.1 C.M. has one life and two homes. He will reap benefits knowing both parents know about and are involved in his significant life events, those that are positive and negative. Also, he will be less likely to "play both ends against the middle" when he knows his parents communicate about him regularly.

2.2 In the event a request for information or a temporary change occurs, each parent shall respond within 24 hours, with the understanding that requests made giving less than 24 hours notice will be responded to as soon as possible. In the event of an emergency or a truly time-sensitive matter, either parent shall call the other parent.

2.3 If a reply to a question and/or a request for a change requires more time than the agreed to response time in (b) above, an e-mail shall be sent advising that the requested information cannot reasonably be ascertained by then and advising when a response can be expected.

2.4 In an effort to foster consistency, stability and continuity of care for N.C., both parents will respect N.C.’s schedule and will communicate about his routines, activities and experiences.

2.5 All communications, written or otherwise, shall be cordial, brief and to the point about N.C. In addition, both parents shall refrain from including information that reflects their personal and negative feelings, frustration and opinions about the other parent, their motives, personality and behaviour. They shall refrain from disparaging and blaming the other parent. Sarcasm, insults, denigrating labels and comments and demands are not permitted in their communication. Compliments and expressions of appreciation and gratitude are permitted.

2.6 Parents should consider using ‘Our Family Wizard’ (a communications software program for separated parents). Telephone calls, in emergency situations, should occur so that there is more direct interaction. Texting/messaging through cell phone or any form of social media or chat application should also occur so that there is more direct interaction.

2.7 Neither parent to swear (use curse words) in N.C.’s presence.

2.8 Neither parent to talk negatively about the other parent’s religion or communicate verbally or non-verbally if the other parent take N.C. to their place of worship or any other religious activities.

2.9 Neither parent to threaten the other parent, either verbally, non-verbally or physically.

2.10 Sharing of Information Pertaining to C.M.:

(a) the parents be mutually obligated to share with one another any and all information related to significant events in N.C.’s daily live, to include immediate advice of any and all appointments with professionals, school personnel, etc., and the outcome of these, through written correspondence (i.e., e-mail) only, in order to minimize the probability of N.C.’s exposure to parental tension and/or conflict. “Our Family Wizard” is also a useful communication tool for this purpose. The principle of forwarding only that information which is necessary to ensure N.C.’s needs are met should be adhered to, and such correspondence should ordinarily be limited to once weekly, unless otherwise necessary to meet his needs or as recommended above. In the event of emergency, or if more immediate communication is required, a telephone call or voicemail message would be made/left advising the other parent that an urgent e-mail message has bene sent so that there is more direction interaction.

(b) Both parents are obliged to inform the other of any need for medical attention that C.M. requires so that they are advised about the specific details. Both parents are able to attend to any medical appointments that are deemed necessary since this would be a comfort to their son.

(c) Each parent be obliged to forward a duly signed “Direction” and/or “Consent to Release of Information” to each of C.M.’s attending medical physicians, schools or other professionals providing service to C.M., permitting disclosure of information regarding C.M. to the other parent.

3. DAY-TO-DAY DECISIONS

3.1 Day-to-day decisions will be the responsibility of the parent in whose care N.C. is residing at the time. In consideration of same, it is recommended that the parents engage in reasonable efforts to achieve consistency in behaviour management and day-to-day routines in order to provide continuity of care, consistency and predictability for C.M. The only exception to this would be if C.M. requires medical attention, S.C. to be consulted and approve this, even when C.M. is in his mother’s home. This will ensure that C.M. is not taken to the doctor’s unnecessarily.

4. MAJOR DECISIONS

4.1 S.C. will be obligated to solicit the input and opinions of C.C. in relation to any and all major decisions affecting C.M. including those decisions related to his physical and psychological health, his education, cultural and religious training and experiences, any extracurricular activities that may affect the time spent by C.M. with the other parent, and any other major decision affecting C.M.’s general welfare.

4.2 Such communication will take place through written correspondence only, in order to document the process and to minimize the possibility of C.M.’s exposure to any parental tension and/or conflict.

4.3 In the event of a dispute in relation to any major decision that the parents are unable to resolve independently, S.C. will have the final decision-making authority.

5. SCHEDULE OF RESIDENCE

5.1 Weekly Schedule of Residence

(a) C.M. will reside in the home of S.C. and have parenting time with his mother based on 5/14 nights. His home will be deemed C.M.’s primary residence.

Monday

Tuesday

Wednesday

Thursday

Friday

Saturday

Sunday

Week 1

S.C. C.C.

C.C. S.C.

S.C.

S.C.

S.C C.C.

C.C.

C.C.

Week 2

C.C. S.C.

S.C.

S.C.

S.C. C.C.

C.C. S.C.

S.C.

S.C.

(b) All pick-ups and drop-offs are to be done at school by the parent in whose care C.M. is residing, as per the above schedule. C.C.’s parenting time to occur once C.M.’s school day is over with her picking up C.M. from school on Mondays, alternate Fridays (week 1) and alternate Thursdays (week 2).

(c) In the event of a PA day or when school is not open, the parents can pick/up or drop off at a neutral location, unless they both agree to do the pickup/drop off at one another’s home.

5.2 Daycare

(a) In the event that a parent cannot pick C.M. up right after school, he will be placed in the day-care at his local school to enable either parent to have additional time to receive him. Alternately, either parent can have C.M. be looked after by either set of grandparents.

5.3. Summer School Vacation

(a) Either parent can vacation with C.M. for one week in each of July or August.

(b) The regular schedule will occur for the balance of the summer.

(c) Arrangements for Summer Vacation periods be made no later than March 1st of each year.

(d) For the vacations, S.C. to have first selection in odd numbered years, and C.C. have first selection of weeks in even numbered years.

5.4 Thanksgiving Weekend

(a) C.M. will spend alternate years in the care of each parent during the Thanksgiving Weekend, from Friday morning at 10:00 a.m. (if it’s a PA day or the end of school on Friday if it’s a regular day) until Sunday night at 8:00 p.m. C.M. will be able to celebrate this holiday with each parent on either the Sunday or Monday night. The regular schedule to determine which parent has this weekend.

5.5 Christmas School Vacation

(a) C.M. will spend relatively equal periods of time in the care of each parent in each year during the Christmas School Vacation period.

(b) The holiday to commence on the final day of school, usually a Friday and end on the first day of school in the new year.

(c) C.M. to reside in alternate years in the care of one parent from after school on the day that the Christmas School Vacation period begins (normally a Friday) until December 25th at 2:00 p.m., with the other parent from December 25th at 2:00 p.m. for seven (7) consecutive nights ending at 1:00 p.m. January 1st), and with the other parent for the balance of the Christmas school vacation period, if any, ending on Sunday evening at 8 p.m. prior to the Monday morning commencement of school. The regular schedule would then resume with C.M. once school resumes in early January.

(d) S.C. to have C.M. in even numbered years for the first and third portions of the holiday and C.C. to have the second portion (8 days) in even numbered years. In odd numbered years, C.C. to have C.M. in the first and third portions of the holiday and S.C. to have him on the second portion (8 day section) of the holidays.

5.6. Family Day Weekend

(a) The regular schedule to apply.

5.7 March School Break

(a) C.M. will reside in the care of each parent each year for one week, to include the five weekdays and the regularly scheduled weekend, conditional on that parent being able to take time off work.

(b) S.C. to select which week he wants to have C.M. in odd numbered years and C.C. to select her week in even numbered years. This is predicated on C.M. remaining at a school that has 2 March Break holiday weeks.

5.8 Long Easter Weekend.

(a) C.M. will reside in alternate years with each parent during the Long Easter Weekend from Thursday after school or 4:00 p.m. if he is not in attendance at school, until Saturday evening at 7:20 p.m. and, in alternate years, form Saturday evening at 7:30 p.m. until Tuesday morning at 10:00 a.m. or the commencement of school. S.C. to have C.M on the Thursday-Saturday period in even numbered years and C.C. in odd numbered years.

5.9 Victoria Day Weekend

(a) The regular schedule to apply.

5.10 Canada Day

(a) C.M. should share time with each parent on this day. This can be alternated annually based on one parent having C.M. from 9 a.m. -3 p.m. and the other parent having him from 3 p.m. until the balance of the day. The parent where C.M. is not normally residing this particular holiday should have him from 9 a.m. – 3 p.m.

5.11 Father’s Day/Mother’s Day

(a) C.M. will reside with S.C. in each year on Father’s Day from 7:30 p.m. on the Saturday evening prior to Father’s Day until Monday morning at 10:00 a.m. or the commencement of school, if C.M. is not otherwise in S.C.’s care on that weekend.

(b) C.M. will reside in each year on Mother’s Day with his mother, C.C. if he is not otherwise in his mother’s care on that weekend, from 7:30 p.m. on the Saturday evening prior to Mother’s Day until Monday morning at 10:00 a.m. or the commencement of school.

5.12 C.M.’s Birthday and Parents’ Birthdays

(a) C.M. will have contact with each parent in each year on his birthday for a three hour period. On weekdays or school days, such contact would normally take place from after school until approximately 7:00 p.m. and would include dinner. On weekend days, such contact would normally take place for a three hour period and would include lunch or dinner (12:00 p.m. to 3:00 p.m. or 5:00 p.m. to 8:00 p.m.). The parent that doesn’t have C.M. residing with him/her on C.M.’s birthday gets to select which timeframe they want to celebrate with C.M. on his birthday.

(b) C.C. to arrange/organize C.M.’s birthday party in even numbered years and S.C. to arrange his birthday in odd numbered years.

(c) C.M.’s residency will not change when a parent has their own birthday. Therefore, if C.M. is residing with his mother and it happens to be his father’s birthday, C.M will remain with his mother and celebrate his father’s birthday when he sees him next.

5.13 PA Days

(a) C.M. to reside with the parent whom he would normally reside with on the day of the PA Day. Specifically, if the PA Day commences at 9:00 a.m. on a Friday and C.M. is residing with his mother for the upcoming weekend (i.e. Friday-Sunday), his time with his mother will commence on Friday at 9:00 a.m. The same scenario applies to C.M.’s time with his father.

5.14 Halloween

(a) C.M. will alternate going out ‘trick or treating’ with each parent annually. In 2020 he will go out with his father and in 2021 he will go out with his mother.

5.15 Resumption of Weekly Schedule of Residence Following Holidays/Vacation Periods

(a) potential instances in which C.M. would reside in the care of the same parent for three consecutive weekends be avoided. In such potential instances, it is strongly recommended that the parents make whatever adjustments are necessary to C.M.’s schedule of residence. In normal circumstances, and in order to avoid such an event, C.M. would reside on the weekend following a holiday weekend or vacation period that results in C.M. spending two consecutive weekends with one parent with the parent with whom he was not resident on the previous weekend and the regular schedule of residence would resume from that point onward.

5.16 Pick Ups and Drop Offs:

(a) In instances in which it is necessary for either parent to drop off C.M. at the home of the other parent in accordance with the Schedule of Residence recommended above, it is recommended that the parents adhere to the following routine. Ordinarily, however, this should not occur.

(b) The individual responsible for transporting C.M. should telephone or text the other parent approximately five (5) to ten (10) minutes prior to their arrival in order to ensure that the parent is available to receive C.M..

(c) The parent responsible for transporting C.M. should park their vehicle in as close proximity as possible to the front door of the other parent’s residence, but should not leave the driver’s seat of the vehicle.

(d) The individual responsible for transporting C.M. should remain in their vehicle at all times until C.M. is safely in the other parent’s home, at which time that individual should leave immediately.

(e) Should C.M. require assistance with any baggage or possessions, it is recommended that the parent providing transportation leave these on the driveway or curb in front of the other parent’s home so that the other parent can retrieve them after the transporting parent has left.

(f) It is understood that the parent responsible for transportation of C.M. may designate any responsible adult known to C.M. to provide such transportation in their stead.

5.17 C.M.’s Illness and Medical/Therapy Appointments

(a) C.M.’s health should not be used as a way to prevent the other parent from having access to their son. The only exception is if C.M. is seriously ill and cannot transfer to the other parent’s home due to illness (and cannot attend school), he should remain in the home of the parent he is currently with and then transported to the other parent’s home, when he is less ill. When there are concerns about his health, C.M. will be taken to a doctor for consultation, as per item c) in this section. If C.M. is ill on the day of transfer to the other parent and he is unable to go to school, he will be taken to the doctor. Under most circumstances, he will then transfer from the doctor’s office to the home of the other parent.

(b) In the event that C.M. becomes sick while at school, the parent that C.M. will be transferring to that evening will be responsible for picking up C.M. and problem-solving what his medical care needs are on that day.

(c) S.C. (or his designate) to be responsible to take C.M. to all medical, dental and/or therapy appointments.

5.18 Extra-curricular activities

(a) Both parents can register C.M. for extra-curricular activities when he is with them. Neither parent to register him for activities that extend onto the other parent’s time, unless they have consent of the other parent.

6. RIGHT OF FIRST REFUSAL

6.1 If either of the parents is unavailable to provide care for C.M. for a period of more than eight (8) hours during which C.M. is normally in that parent’s care, is awake or not in school, or if either parent is away overnight, the other parent will have the right of first refusal to provide care for C.M. during that period. If the latter parent is unavailable to provide care, the former parent will maintain responsibility of making appropriate care taking arrangements during their absence.

6.2 In facilitating same, “make-up” time is discouraged, except in special circumstances, in order to ensure continuity of C.M.’s schedule of residence and routines.

6.3 Notwithstanding the above, the parents will maintain flexibility in order to permit C.M. to enjoy sleepovers at the home of friends or extended family members and grandparents. Such a sleepover would not normally constitute the unavailability of a parent to provide care.

7. TELEPHONE/WEBCAM CONTACT

7.1 It is recommended that each of the parents be permitted to initiate one daily telephone or webcam call with C.M. at a consistent, predictable and mutually agreed upon time, for example, between 7:00 p.m. and 7:30 p.m., on those days in which C.M. is in the other parent’s care. Such contact should not exceed 10 minutes in lengthy unless otherwise agreed by the parents. If, for any reason, C.M. is not available to receive the parent’s telephone/webcam call at that time, then the parent with whom C.M. is residing be responsible for ensuring that they return the call as soon as practically possible. It is recommended that no restrictions be placed on C.M.’s initiation of telephone contact with either parent, except in reasonable circumstances. It is recommended additionally that C.M. be ensured of privacy during telephone contact with either parent.

8. TRAVEL WITH C.M.

8.1 C.M. will be permitted to travel outside Canada with either parent for the purposes of vacation, contact with extended family, or special occasions, with the consent of the other parent, such consent not to be unreasonably withheld. In instances in which C.M. travels outside of the country with a parent for these purposes, it is recommended that the other parent provide a notarized “Travel Letter” authorizing C.M. to travel outside the country with the accompanying parent. It is recommended further that passports be maintained for C.M. and that this remains in the possession of his father, S.C., at all times, with the exception of instances in which C.M. is travelling outside the country with his mother, C.C.

82. If C.M. is out of town with either parent, or away from either parent’s principal residence overnight during any period in which he is in that parent’s care, then that the parent in whose care C.M. is residing at the time will provide to the other parent a complete itinerary, to include a description of travel arrangements and an address and telephone number where C.M. and the parent may be reached. Similarly, if the parent in whose care C.M. is not residing at the time is out of town or away from their principal residence overnight, that parent will provide to the parent in whose care C.M. is residing a telephone number at which or through which they may be reached in case of an emergency.

8.3 Each parent will be obligated to request the consent to travel from the other parent with a minimum three weeks’ notice in any instance in which that parent wishes to travel with C.M. and that the parent providing the notarized “Travel Letter” authorizing C.M. to travel outside the country be obligated to provide such letter a minimum seven days in advance of the scheduled trip. In instances in which C.M. is travelling outside the country with his mother, C.M.’s father will be obligated to provide his mother with C.M.’s passport at the same time that he provides the notarized “Travel Letter”, with the passport to be returned by C.C. to S.C. simultaneous with C.M.’s return from such an out of country vacation.

9. LOCATION OF PARENTS’ RESPECTIVE RESIDENCES

9.1 The parents will be obligated to maintain their respective physical residences within 45 minutes of travel time from one another and C.M.’s respective school, or no further that is currently the case, in order to maintain the practical feasibility of their schedule of residence as recommended above.

9.2 In any event, the parents will be obligated to provide one another with a minimum ninety (90) days’ notice, in writing, of any intention to re-locate their respective principal residences.

10. DOCUMENTS

10.1 S.C. to keep possession of the following documents: C.M.’s birth certificate, passport, immunization schedule, all adoption materials and social insurance documents.

COURT FILE NO.: 19/38

DATE: 2021-08-09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

C.C.

Applicant

– and –

S.C.

Respondent

REASONS FOR Decision

Conlan J.

Released: August 9, 2021