SAULT STE. MARIE COURT FILE NO.: 2995/14-02

DATE: 2021-08-30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Sarah Stevens Applicant/Responding Party

– and –

Glynn Nelson Respondent/Moving Party

COUNSEL: Mark Palombi, for Sarah Stevens/Responding Party Shadrach R. McCooeye, for Glynn Nelson/Moving Party

HEARD: May 26, 2021, June 23 and 24, 2021 via Zoom, with written submissions completed July 19, 2021

REASONS FOR JUDGMENT

Boucher, J.

Overview

[1] Glynn Nelson’s motion to change the final orders that govern custody and access (as the terms were then used) and child support was heard over several days. Other than the OCL, witnesses delivered affidavits representing their evidence in-chief, and cross-examination took place via the Zoom platform.

[2] Currently, the children spend three weekends out of four with Glynn Nelson. They also divide their holiday time between the parties. Sarah Stevens has had custody or decision-making authority regarding the children since 2014.

[3] Glynn Nelson asks that he be granted decision making authority and that Sarah Stevens have alternate weekend parenting time (as well as half of the vacation time) with the children. He also asks that she pay child support and that his child support be adjusted retroactively based on his income.

[4] Sarah Stevens asks that the current arrangement regarding the children remain in place. She also asks that her decision-making authority not be subject to the conditions set out in Justice Varpio’s Order dated September 28, 2017 (hereinafter “Justice Varpio’s Order”).

[5] I need to determine if there has been a material change in circumstances affecting or likely to affect the children that has occurred since the final orders were made. If there has not been such a change, then I must leave the final orders in place, subject to updating the child support provisions, if necessary.

[6] If, however, I find there has been a material change, then I am required to determine what decision-making and parenting time orders are needed in the children’s best interests as well as the appropriate order for child support

Background

[7] The parties were married June 24, 2000. Sarah Stevens was 16 years old at the time; Glynn Nelson, 22. Given her age, Sarah Stevens required the consent of her parents to marry.

[8] Together they are the biological parents of Glynn Caleb Nelson, born January 24, 2006 (hereinafter “Glynnie”) and Jack Owen Nelson, born September 1, 2010 (hereinafter “Jack”).

[9] The parties separated on August 23, 2013 and were divorced on July 22, 2016.

[10] Justice McMillan’s Final Order dated June 2, 2014 (hereinafter “Justice McMillan’s Order”) entrusted custody of the children to Sarah Stevens, set out the terms of Glynn Nelson’s access, and provided for child support.

[11] Glynn Nelson asked the court to revisit that order. As a result of an agreement reached by the parties, Justice Varpio’s Order was put in place. Conditions were attached to Sarah Stevens’ custodial rights and details were added regarding telephone and holiday access.

[12] Approximately 11 months after Justice Varpio’s Order was made, Glynn Nelson brought the current motion to change. The motion to change was amended pursuant to Justice Varpio’s Endorsement dated October 22, 2018. The amendment requested payment by Sarah Stevens of her proportionate share of expenses relating to Jack’s hockey and baseball and Glynn’s medical expenses.

[13] The Office of the Children’s Lawyer appointed Carrie-Lynn Wilton to conduct an investigation regarding the children. She delivered an interim report dated March 27, 2019 and a final report dated September 11, 2019. Prior to the release of her final report, she provided the parties with her findings. They reached an interim agreement which expanded Glynn Nelson’s access to three weekends out of four (and removed his weekday access). Justice Gareau’s Interim Order dated May 17, 2019 (hereinafter “Justice Gareau’s Order”) reflects this agreement.

The Evidence

[14] At the hearing that took place over the Zoom platform, Sarah Stevens and Glynn Nelson provided brief updates to their affidavits and were otherwise cross-examined. Ryan Andreola, Sarah Stevens’s friend, was also cross-examined. Carrie-Lynn Wilton was cross-examined by counsel for both parties. Her interim and final reports were made exhibits.

[15] In addition to the evidence adduced at the hearing, including the exhibits, I considered the evidence in the continuing record relating to this motion to change, including the financial statements of the parties as well as the following:

a. Glynn Nelson’s Affidavits, sworn: i. April 14, 2021; ii. February 16, 2021; iii. January 18, 2021; iv. October 28, 2020; v. January 30, 2020; and vi. August 13, 2018; b. Glynn Nelson’s Request to Admit, dated January 30, 2020; c. Glynn Nelson’s Document Brief (2 volumes); d. Stephanie Nelson’s Affidavit, sworn January 30, 2020; e. Kathleen Hurley’s Affidavit, sworn January 30, 2020; f. Chris Nelson’s Affidavit, sworn January 30, 2020; g. Penny Hurley’s Affidavit, sworn January 30, 2020; h. Tanya Taylor’s Affidavit, sworn May 26, 2021; i. Ryan Andreola’s Affidavit, sworn April 27, 2021; j. Sarah Stevens’s Affidavits, sworn: i. April 27, 2021; ii. November 27, 2020; iii. October 22, 2020; and iv. October 17, 2018

The Test for Variation

[16] The law regarding variation of final orders involving custody and access was set out by the Supreme Court of Canada in the decision Gordon v. Goertz, [1996] 2 S.C.R. 27. This test has been held to equally apply to cases determined under s. 29 of the Children’s Law Reform Act (CLRA); see Allen v. Allen (1998), 38 R.F.L. (4th) 96 (Gen. Div.)

[17] The moving party must first meet the threshold requirement of demonstrating that, since the last order was made, there has been a material change in circumstances that affects or is likely to affect the children. The previous order is presumed to be correct. The change must not have been foreseen or reasonably contemplated by the judge who made the original order. The change must be to the condition, needs, means or circumstances of the children and the ability of the parent to meet those needs. If this test is not met, the inquiry goes no further.

[18] If the threshold is met, the court must embark on a fresh inquiry into the best interests of the children, having regard to all the circumstances in s. 16 of the Divorce Act and in s. 24 of the CLRA. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the children lie. The court should consider the matter afresh without defaulting to the existing arrangement.

Has there been a Material Change in Circumstances?

[19] Sarah Stevens denies any material change in circumstances.

[20] Glynn Nelson’s allegations are discussed under the headings below.

(1) Applicant’s denial of in-person access

[21] Glynn Nelson raises several examples of in-person access that has been denied by Sarah Stevens.

[22] Prior to Justice Gareau’s Order, Glynn Nelson expressed concern about missed alternating Thursday access, which was expected to take place from 4:30 p.m. to 7:00 p.m. This was addressed by the Carrie-Lynn Wilton during her investigation.

[23] At the time, Sarah Stevens lived on St. Joseph’s Island which made the drive longer than when she lived in Goulais River. She agreed she cancelled some visits due to poor weather. She also stated the children felt it was too much driving for a two-hour visit.

[24] Glynn Nelson acknowledged to Carrie-Lynn Wilton that the alternating Thursday visits were difficult, but he did not want to miss out on his time with the children.

[25] Carrie-Lynn Wilton recommended removing these visits and instead having the children spend three weekends out of four with Glynn Nelson. The parties agreed with this change, which resolved the issue.

[26] Glynn Nelson also expressed concern about missed PD days with the children as well as some days missed because Sarah Stevens changed the start or end of holiday visits. My review of the evidence suggests these complaints stopped after Carrie-Lynn Wilton’s final report.

[27] Another in-person access concern expressed by Glynn Nelson relates to weekend access that was missed during the pandemic. Sarah Stevens acknowledges this but blames it on the need to self-isolate while waiting for COVID-19 test results. Glynn Nelson called the police to enforce his weekend access when he believed negative results had been received and the children and Sarah Stevens were at Ryan Andreola’s residence on his weekend.

[28] The remaining in-person access issues concern Glynnie. Glynn Nelson has tried to have Glynnie attend at his home directly from school on his access weekends (rather than first returning home). He has also invited Glynnie to attend at his house for lunch from time to time during the school week. Glynn Nelson alleges Sarah Stevens has refused this access and has gone as far as to delete him from Glynnie’s Snapchat to prevent further invitations.

[29] Sarah Stevens is concerned about Glynnie safely making his way to Glynn Nelson’s home for lunch. She worries that his autism makes this type of trip unsafe. She worries about Glynnie’s need to follow a routine. She stated, however, that if Glynnie wanted to try it out she would be supportive but would need to ensure he can comfortably and safely cross Goulais Road.

[30] The only concerns that have not been resolved by Justice Gareau’s Interim Order do not on their own establish a material change in circumstances. To some extent they amount to changes Glynn Nelson is trying to make unilaterally. Justice Varpio’s Order is very specific and extensive in terms of defining his access. In fact, the access provisions take up nine pages of the order. While the wording of the weekend access states “from after school” the parties do not agree on whether Glynnie should go directly from school or from his mother’s. The former is the status quo.

[31] The school lunch visits are not set out in Justice Varpio’s Order. Rather, the order provides that other access can take place “as the parties may agree, in writing.” The parties do not currently agree on this access.

[32] I am unable to find that disagreement on these minor access issues amounts to a material change. I find the reasons offered by Sarah Stevens are based on Glynnie’s current needs.

(2) Transportation issues

[33] Most of the transportation issues raised by Glynn Nelson arose prior to Justice Gareau’s Order. Of the 28 incidents raised, only 4 post-date Sarah Stevens’s return with the children to Goulais River in the Fall of 2019. Many of the concerns also involve Glynn Nelson’s alternate Thursday access which was removed on consent in Justice Gaureau’s Order. The most recent concerns (the last being January 2020) involve requests by Sarah Stevens to make minor changes to the pick-up or drop-off routine. For example, on January 26, 2020 Sarah Stevens asked Glynnie to ask Glynn Nelson if he could give the boys a ride home. Glynn Nelson agreed if Sarah Stevens agreed to do both the drop-off and pick-up for the next access visit.

[34] I am unable to find that these issues amount to a material change in circumstances. As long as children are unable to drive themselves, parents will from time to time need to work together to ensure access can take place.

(3) Issues relating to extra-curricular activities

[35] Other than Jack missing some baseball in the Spring of 2018, Glynn Nelson’s concerns focus on Jack’s ability to play hockey. He alleges Sarah Stevens didn’t bring Jack to many practices and games. He suggests Sarah Stevens excluded him from the hockey team website and registration information for Jack. He states Sarah Stevens made it difficult for him to attend games. He alleges Sarah Stevens caused issues during that season when she insisted on hyphenating their last names on Jack’s jersey.

[36] This is an example of neither parent putting the interests of the children ahead of their own. They had a very public dispute about the proper name to be put on Jack’s jersey. When they deadlocked, the solution was not to put a name on his jersey.

[37] When Sarah Stevens told him, she could not afford to register Jack in hockey for the following season (2019/2020), Glynn Nelson offered to pay half if “she would commit to taking him to all practices and games on her time.” When she responded that she could not afford to pay half, Glynn Nelson agreed to pay the entire amount. Glynn Nelson again asked Sarah Stevens to pay half of the 2020/2021 registration fees. When she indicated she could not contribute, he agreed to pay the whole amount.

[38] Even though Sarah Stevens told him several times that she could not afford to contribute to Jack’s hockey, he prefers the inference that her refusal was because she did not want to commit to bringing him to his practices and games. This is something that is common throughout his affidavit evidence. He suggests negative inferences as the only possible reason why she does not agree with him. A common thread is his belief that positive interactions with Sarah Stevens are a result of her fear of ongoing court proceedings. Carrie-Lynn Wilton noted in her final report that Glynn Nelson told her he was worried “that once the ‘heat is off’ that she will go back to her typical behaviours, abiding by their court order as she pleases.”

[39] This ground also fails to establish a material change in circumstances. When Sarah Stevens indicated she could not afford the fees, Glynn Nelson took on that responsibility. Playing hockey depends to a large extent on the financial abilities of the parents. I accept Sarah Stevens would have a difficult time paying for half of Jack’s hockey given her modest means. This extends to the costs that are unrelated to registration fees. For example, Glynn Nelson raises Jack’s undergarments as an issue. It appears that he purchased clothing for Jack to wear under his equipment but this clothing stays at his residence. A dispute arose between the parties because Jack wanted that clothing, but he was at his mother’s residence. Rather than let the clothing travel with Jack, Glynn Nelson criticizes Sarah Stevens’s failure to purchase what he thinks Jack needs or wants for hockey.

[40] In any event, the issues relating to Jack’s hockey largely resolved with Carrie-Lynn Wilton’s intervention. She suggested only Jack’s legal name be used for hockey purposes. She recommended Glynn Nelson register Jack in extracurricular activities and this has been followed. She also reminded Sarah Stevens of the need to ensure Jack regularly attends at these activities.

(4) Issues relating to schooling

[41] Between 2017 and 2019 Sarah Stevens moved the children from one school to another six times. All these moves but one had taken place prior to Carrie-Lynn Wilton’s involvement. The moves were occasioned by Sarah Stevens moving back and forth from her then partner’s residence on St. Joseph’s Island and her home in Goulais River. I will discuss more about this partner later, but Sarah Stevens moved the children’s school the last time in September 2019 when she left her then partner.

[42] Although Glynn Nelson’s affidavits raise issues about missed school, the report cards filed demonstrate this did not impact negatively on the results achieved. Jack’s grades are exceptionally good, and Glynn Nelson agreed in cross-examination that they cannot really expect him to do any better. Glynnie has done well, too, despite the challenges brought on by his autism and ADHD.

[43] Glynn Nelson acknowledged in cross-examination that his involvement with schoolwork is limited to when the boys bring work to his home. He agreed Sarah Stevens has been responsible for most of the work required to assist the children with their schooling, especially Glynnie.

[44] He also suggests in his affidavits that he has had difficulty in the past obtaining documents from the schools; however, he acknowledged in cross-examination that this is currently not an issue. In fact, it is clear he communicated directly with Glynnie’s music teacher this year.

[45] Glynn Nelson seems to be primarily concerned with knowing the reasons why the children have missed school, despite the fact they are doing well. When asked in cross-examination if he should be made aware of day to day issues such as missing school, Glynn Nelson acknowledged that these are not major decisions; however, he was critical of Sarah Stevens for not consulting him when she makes these decisions.

[46] I do not agree that Sarah Stevens has a duty to consult with Glynn Nelson every time the children miss school. As the parent with decision making authority and the day-to-day care of the children, she needs to be given some leeway. From a practical standpoint, sometimes too much information is not helpful. For example, Glynn Nelson is critical of Sarah Stevens’s decision to keep one of the boys home for the day to attend the dentist and suggests he should have only missed half the day. He is also critical, however, of her alleged failure to bring the children to the dentist. It is hard to reconcile these complaints. This excess of non-vital information becomes the fodder that fuels disagreement.

[47] I find Glynn Nelson’s concerns about schooling do not amount to a material change in circumstances. Sarah Stevens stopped moving their schools when she removed herself from an abusive relationship two years ago. He has direct access to school information and the children are excelling academically.

(5) Exposure of the children to domestic violence

[48] From the time of Justice Varpio’s Order until September 15, 2019 Sarah Stevens was in a relationship with Shane Noel. They lived together on-and-off during this time, which was the cause of the children switching schools between St. Joseph’s Island (where Shane Noel resided) and Goulais River (where Sarah Stevens’s home is located). Glynn Nelson alleges the relationship continued until December 2019, but the residence of the children has remained in Goulais River since September 2019.

[49] Shane Noel was abusive toward Sarah Stevens and he was charged with assault. Sarah Stevens ultimately realized she needed to free herself from this relationship.

[50] Glynn Nelson expresses concern about Sarah Stevens moving from boyfriend to boyfriend and having them live with her. His affidavits provide details about when he believes there is a new vehicle in the driveway that may belong to a new boyfriend. He suggests that once the court proceedings are over, Sarah Stevens will return to Shane Noel. That does not appear to be the case, given Sarah Stevens has been in a relationship with Ryan Andreola since March 2020, although they maintain separate residences.

[51] I am unable to find that Sarah Stevens’s relationship with Shane Noel resulted in a material change in circumstances. They were together when Justice Varpio’s Order was made, and allegations of domestic violence had already surfaced. In any event, Sarah Stevens removed herself and the children from the relationship two years ago and has not returned.

(6) Not supporting Glynn Nelson’s relationship with the children

[52] Glynn Nelson suggests Sarah Stevens has continuously tried to break his bond with the children. This part of his evidence seems to batch together several of his other alleged grounds which he believes support a material change in circumstances, which I deal with separately in these reasons (e.g., failure to consult, appointments, telephone communication).

[53] This submission is not supported by the evidence. Sarah Stevens consented to Justice Gareau’s Order which provides the children spend three weekends out of four with Glynn Nelson. This was an increase in what had been put in place by Justice Varpio’s Order, which has continued for the most part without interruption. They also share the children equally during holiday time, including the summer months. Simply put, Glynn Nelson’s in-person contact with the children has increased since Justice Varpio’s Order.

(7) Access exchange issues

[54] According to Glynn Nelson, Sarah Stevens has been blocking her driveway since January 22, 2021 when he attends to pick up the boys (although in cross-examination he said it started late “last summer” or Summer 2020). He claims he is forced to park on the roadway, and it is dangerous for the boys to get in his car from that location. He also says Ryan Andreola has harassed him when he attends for the boys, calling him names.

[55] In cross-examination he confirmed the “past three or four times” Sarah Stevens has left him enough room to pull-in the driveway with his car. He also testified that in the past two or three months he can pull-in enough with the car to open the doors in the driveway.

[56] Sarah Stevens’s evidence in cross was that she has not prevented him from parking in the driveway but rather leaves him a spot at the end of the long driveway. This differs from her affidavit evidence in which she states she had to prevent him from entering the driveway because he stared into her windows and invaded her privacy.

[57] The evidence of both parties on the issue of parking in the driveway was internally inconsistent. I find on this record that for a period in early 2021 Sarah Stevens made Glynn Nelson park on the road rather than in her driveway, but this had stopped prior to the hearing. I do not accept that this endangered the children. Neither of these parents would put their children in danger. It is safer to get into the car in a driveway (there are no cars driving by), however, and it is better that this issue is resolved.

[58] Glynn Nelson also states Sarah Stevens likes to make him drive to Goulais River to pick-up the children, even if they are in the Sault. He explains that he is often aware the children have slept at Ryan Andreola’s on Thursday night and are at his home on Friday. Prior to pick-up time, she drives back to Goulais River and the exchange takes place. Sarah Stevens denied this and both she and Ryan Andreola testified the children sleep at his home only on weekends.

[59] This is another example where Glynn Nelson draws a negative inference about Sarah Stevens’ motives. Even if it were true that she had been in the Sault with the children on a Friday of his access weekend, there may be other reasons for her to return home with the boys. With respect, this complaint is minor and likely adds to Sarah Stevens’ feeling of being watched and harassed. What is important is that the access takes place.

[60] I find these exchange issues do not amount to a material change in circumstances.

(8) Sarah Stevens’s poor care of the children’s needs

[61] Glynn Nelson’s concerns that pre-date the Fall of 2019 generally relate to his belief the children had inadequate clothing. Poor hygiene is raised, as well as a cut Jack received from the talon of a rooster. He also raises concerns about the boys sleeping away from Sarah Stevens’s home, either a friend’s house or Ryan Andreola’s. Glynn Nelson believes the boys should sleep only at their parent’s homes. These complaints do not give rise to a material change in circumstances. They go to they type of day to day decisions that the parent with decision making authority makes. Glynn Nelson’s continued criticism of these decisions, and wanting to have a say, demonstrate a lack of appreciation of Sarah Stevens’s decision-making role.

[62] I am concerned, however, that Glynn Nelson has had to resort to using Glynnie as a messenger between them. For example, he told Glynnie to tell Sarah Stevens to have his tooth checked. He fairly points out he did this because Sarah Stevens has stopped communicating with him. Insofar as there is an inability on the part of Glynn Nelson to convey to Sarah Stevens health care concerns about the children, I find this constitutes a material change in circumstances.

(9) Medical issues and lack of information

[63] Glynn Nelson suggests Sarah Stevens does not advise him about the children’s medical appointments. She acknowledged in cross-examination that there is currently no communication between them. She indicated the boys could tell him about their appointments. When asked what is stopping her from sending an email to let him know, she explained that in the past this has resulted in arguments about changing appointment dates to fit Glynn Nelson’s work schedule.

[64] Some time was spent at the hearing discussing whether Glynnie’s eyeglasses have an up-to-date prescription. Glynn Nelson suggests Glynnie told him his mother has not filled the prescription. Sarah Stevens suggests she filled the prescription but Glynnie wants another pair with a different frame. She did not offer any receipts to prove they are up to date. She suggested Glynn Nelson is free to purchase another pair if he wishes.

[65] This disagreement is another example of Glynn Nelson reaching a negative conclusion about Sarah Stevens and her motives in caring for the children. He acknowledged in cross-examination that there are sufficient medical plans to cover the eyeglasses. When asked if he believed Sarah Stevens was neglecting this aspect of Glynnie’s medical care on purpose, he responded he hoped not, but could not see any other reason. He could not see that perhaps Glynnie was not telling him the whole story. Despite alleging Sarah Stevens was neglecting Glynnie’s health, he took no steps himself to determine if the prescription had been filled. He acknowledged he could think of no other examples of Sarah Stevens neglecting Glynnie’s health.

[66] With respect to her own mental health, Justice Varpio’s Order requires Sarah Stevens to advise Glynn Nelson about any material change regarding her health status. It also requires her to keep Glynn Nelson “informed of her treatments and provide supporting documentation to [him] with respect to her mental health and her medication upon request.”

[67] In 2017 Sarah Stevens attempted suicide while the children were in the care of Glynn Nelson. In cross-examination she testified that she has PTSD because of her relationship with Shane Noel. When asked how she is dealing with her PTSD she testified that she takes her medication as prescribed (Ciprolax and CBD) and tries to stay healthy. She gardens and farms as well.

[68] Sarah Stevens testified she was not sure if she advised Glynn Nelson of her PTSD diagnosis. In further cross she stated Glynn Nelson failed to ask her for updates about her mental health, then said there were no updates to provide him because her medication has not changed. It was clear to me that Sarah Stevens was uncomfortable answering these questions. She said as much during the hearing, though she eventually answered them. Based on her answers to these questions I find that she did not advise Glynn Nelson about her PTSD diagnosis.

[69] Is such a diagnosis a material change in her mental health status? Her evidence is that it did not require a change in medication and that she treats it by gardening and farming. She denied seeing a counsellor since the diagnosis. No medical evidence was proffered to set out the particulars of the diagnosis, including the severity of its impact on her. It has not required her to be hospitalized. I accept Sarah Stevens’s evidence that it has not required her to change medication or to seek counselling. It has not interfered with her care for the boys. I therefore find that her PTSD diagnosis was a not a material change in her mental health and accordingly she was not required to advise Glynn Nelson.

[70] Justice Varpio’s Order requires Sarah Stevens, however, to advise Glynn Nelson about all the children’s appointments. It further provides Glynn Nelson “shall be permitted to attend any and all appointments and meetings.” She is admittedly not following the order. This is part of the larger discussion of the breakdown in communication which will be discussed later in my reasons. I find that failing to follow the order in this regard constitutes a material change in circumstances.

(10) Denial of telephone access and communication generally

[71] Justice Varpio’s Order sets out the following with respect to telephone access:

a. Commencing forthwith, Glynn Nelson father shall have telephone access with the said children each Tuesday and Thursday, and each Sunday when the children are not otherwise in the care of Glynn Nelson father. Sarah Stevens mother…shall facilitate the telephone access by having the said children telephone Glynn Nelson father as follows: i. If the father is working days, at 8 p.m.; ii. If the father is not working, or is working nights, at 6:00 p.m.; iii. The telephone number the children will call from will be 705-879-7787, or as otherwise agreed by the parties, and confirmed in writing; iv. Sarah Stevens mother…shall make a telephone available to the children to call Glynn Nelson father, as the said children may request; v. Sarah Stevens mother…and Glynn Nelson father…shall keep each other advised of any changes to the said telephone numbers or contact information.

[72] The minutes of settlement that formed the basis of Justice Varpio’s Order are dated July 21, 2017. Glynn Nelson reports that Sarah Stevens from the start did not respect the telephone access provisions. His affidavit sets out over 100 dates from 2017 through 2019 that there was either no phone access or dates he called, and Sarah Stevens interfered with his phone access. He suggests phone access improved during the OCL investigation, but that it tapered off thereafter. In his affidavit he documents 22 instances when he missed phone access in 2020 and 12 up to the end of February 2021. He testified that Sarah Stevens has not allowed phone access since before January 2020.

[73] Glynn Nelson’s evidence is that at some point he and his wife were communicating with Glynnie via the Snapchat platform. This is a mobile application built for devices such as cellular phones and tablets. He states that when Sarah Stevens learned that his wife was communicating with Glynnie she messaged her with his phone and told her to stop. Sarah Stevens confirmed this in cross-examination stating that she considered it luring and harassment. She felt that it was improper for them to be asking Glynnie to go to their house for lunch due to safety concerns and the disruption it would cause to his routine. She testified that this was causing him a little anxiety.

[74] Glynn Nelson also testified that he subsequently communicated with Glynnie via the Instagram platform, which is another mobile application. He described it as a text message communication rather than a phone call. He noted one instance when Glynnie accidentally video-called him over Instagram. It is not clear on this record if the communication via Instagram is ongoing. When he was asked in cross-examination if he had taken any steps to purchase the boys a phone with which to communicate, he said this was the responsibility of Sarah Stevens. He also testified that although Sarah Stevens recommends communicating through mobile applications, he does not want to put the boys in the middle.

[75] Sarah Stevens’s evidence is that Glynn Nelson is free to call the children when he wishes and that she encourages them to speak with him. She testified in cross that she reminds them on the predetermined days and tells them they can call their father. She leaves it to their discretion.

[76] She also states that she has purchased a cell phone for Glynnie so that he can speak directly with Glynn Nelson. She has not provided the phone number to Glynn Nelson and expects Glynnie to provide it to him. She could not recall the number in cross-examination and blacked-out the number on the cell phone bill she filed in these proceedings (to keep his number private). It was not clear how long this phone has been available to Glynnie.

[77] Communication between the parties themselves is non-existent. Glynn Nelson testifies he is prepared to communicate, even if by email, but this is not reciprocated by Sarah Stevens. Sarah Stevens takes the position that she is not allowed to communicate with Glynn Nelson because of his recent criminal charges. She alleges that he sexually assaulted her when she was under the age of 16 years. He has been charged and is subject to an undertaking that he not communicate directly or indirectly with her except “for any planning, arrangements or needs regarding the children.” He is also not to attend at her residence except for the purposes of picking up the children.

[78] Sarah Stevens testified that prior to the undertaking she received conflicting advice from two different police officers regarding communication with Glynn Nelson. One told her not to communicate with him and another told her to keep it at a minimum. She sought out that advice because she felt that he was stalking her and harassing her. The stalking complaints relate to allegations of him driving by Ryan Andreola’s home; the harassing, to the nature of his emails and calls.

[79] It is clear Sarah Stevens stopped all communication with Glynn Nelson in early 2021. Glynn Nelson suggests his number was blocked about a year ago. Justice Varpio’s Order provides that information regarding the children, as well as regarding Sarah Stevens’s mental health be provided to Glynn Nelson. It is also agreed that the children do not have their scheduled telephone calls with Glynn Nelson. I find this absence of communication generally, and with respect to the children specifically, to be a material change in circumstances.

The Best Interests of the Children

[80] Section 16 of the Divorce Act (which is mirrored in section 24 of the CLRA) provides as follows:

Best interests of child

• 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.

• Primary consideration

  (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.

• Factors to be considered

  (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.

• Factors relating to family violence

  (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.

• Past conduct

  (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.

• 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.

• Parenting order and contact order

  (7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

[81] Aside from the primary considerations, Parliament chose not to give any one factor in the list statutory pre-eminence. At all times, the factors must be considered from the perspective of the children and their needs, not the needs or desires of the parents.

[82] Although two years have passed, the investigation conducted by the OCL assists in assessing the best interests of the children. Counsel were able to provide her with updates during cross-examination (through hypotheticals), which allowed her to provide her input on changes. For example, she initially said that a further change in schools after her final report was released would be concerning. She also testified, however, that if it was done to remove them from the negative situation in Shane Noel’s home, then that would be positive.

[83] Carrie-Lynn Wilton has been on the OCL panel since 2012 and has completed over 150 assessments. She is a registered social worker with an M.A. in dispute resolution. She is also an accredited family mediator.

[84] She conducted interviews with the parties (and their partners), and the children for the purposes of the interim as well as the final report. She spoke with Sarah Stevens’s former counsellor as well as Glynn Nelson’s physician. She reviewed various court documents, a CAS summary of involvement as well as occurrence reports from the OPP and the Sault Ste. Marie Police Service. She testified that she used the interim report to measure progress before finalizing her recommendations.

[85] Her concerns with respect to Sarah Stevens included:

a. Domestic violence at the hands of her partner; b. Changing the children’s schools frequently; c. Taking care of her mental health; d. Communicating better with Glynn Nelson; e. Facilitating phone contact between the children and Glynn Nelson; and f. Attendance at extracurricular activities

[86] Her concerns with respect to Glynn Nelson included:

a. Some anger issues had been identified, particularly in the past with respect to physical discipline; and b. Calling the CAS excessively for custody rather than child protection issues

[87] She spoke in a positive way about the boys and the parties, including:

a. Clean clothing and age appropriate toys; b. Sarah Stevens spoke in a positive way about Glynn Nelson and supported expanded access; c. Sarah Stevens worked part-time in order to be home more for the children; d. Sarah Stevens’s anxiety and depression did not appear to be interfering with the boy’s care; e. She did not see signs of parental alienation on the part of Sarah Stevens (which she characterized instead as poor communication.) She did not see any evidence of Sarah Stevens speaking poorly about Glynn Nelson or telling the children not to visit with him; f. The children were open and forthcoming with her and did not appear to have been guided or coached; g. The boys were normal in their developmental milestones and were happy; h. Glynn Nelson’s wife was a positive influence for the boys; i. The children loved spending time with both of their parents.

[88] I am mindful that when Glynnie and Jack met with Carrie-Lynn Wilton they were 13 and almost 9 years old, respectively. Their views and preferences on their residence vary slightly between the two reports. They both want to share their holiday time with their parents. They enjoy spending more time with their father, but Jack believes three weekends in a row is too long to go without being with his mother. Glynnie switches from wanting to spend equal time with his parents to wanting this only during the summer and spending three weekends with his father during school.

[89] Carrie-Lynn Wilton recommended that the parties share joint custody but that their primary residence remain with Sarah Stevens. When asked by Glynn Nelson’s counsel about the new access schedule she testified that she could not recommend shared parenting (which I take to mean week-about) because the parties lived too far apart. She further said it was impossible to do shared parenting with the transportation issues for school. This recommendation was made when the children were residing on St. Joseph’s Island.

[90] During cross-examination by Sarah Stevens’s counsel, Carrie-Lynn Wilton agreed a change in principal residence would be significant and she did not believe it was appropriate in this case.

[91] It is not uncommon in disputes such as these to have the juxtaposition of two caring parents who are unable to convert the love for their children into respect for each other. I find both parents to independently provide a safe, loving, appropriate home to the children when they are in their care. At the same time, it is equally clear to me that the parties have, except for some pockets of time, been unable to get along.

[92] Although it is not impossible, normally courts will not order joint decision making to parties that are unable to work together. The reasoning is simple: in a deadlock, decisions often cannot be made in the children’s best interests. Matters affecting the children should not have to wait while the parents unreasonably argue about the outcome. The parties in this case have demonstrated a pattern of behaviour that would not make a joint decision-making order in the children’s best interests.

[93] I have already discussed Sarah Stevens’s failure to provide information as required by Justice Varpio’s Order. This includes health care and school appointments. She argues that providing details of appointments would cause delay because he would invariably request a change to the date and time to accommodate his work schedule. Appointments with specialists are not easily booked, she states, and the children’s care should not be unnecessarily delayed.

[94] She has also failed to facilitate Glynn Nelson’s telephone access as set out in Justice Varpio’s Order. Although it is clear to me Glynn Nelson has otherwise been communicating directly with the boys – via Snapchat and Instagram – this failure on her part to show an effort at making phone calls adds to the animosity between them. She testified that she has provided a cell phone to Glynnie so that they can communicate with their father, but it is not clear how long he has had the phone and it appears Glynn Nelson is not aware of the phone number. It is possible Glynnie is using this phone to communicate with Glynn Nelson via social media but that was not made clear in the evidence.

[95] Perhaps most concerning is Sarah Stevens’s unilateral decision to stop communicating with Glynn Nelson. I appreciate there may have been some confusion about advice given to her by the police. In this case, Glynn Nelson’s undertaking allows for communication strictly regarding the boys. Sarah Stevens could have sorted this out with the help of the police or VWAP or the Crown Attorney. Instead, she used the undertaking as an excuse to not communicate with him.

[96] The children need their parents to communicate about their best interests. The lack of a direct means of delivering important information to each other necessarily drags the boys into the dispute. They become the conduit of information which for minor issues (“Make sure you tell your mother you cut your foot this weekend so she can keep an eye on it”) is fine. It is when important information needs to be shared that it breaks-down. What if one of the parties will not be home at the appointed time to receive or pick-up the children? Why are important details like that left to the boys, who may forget to pass it along? Add to that the level of animosity between the parties which, it is not hard to imagine on this record, they cannot hide from the boys. Being messengers puts them in a very unenviable position.

[97] I fault both parties for the current situation.

[98] As I have already discussed, Glynn Nelson invariably draws negative inferences about Sarah Stevens’s motivations in his affidavits, in his interviews with Carrie-Lynn Wilton and during cross-examination. I found it problematic that he refers to her as “the mother” in his affidavits and his viva voce evidence (which I found to be depersonalizing). He has seemingly documented in affidavits every perceived error on her part. Only very rarely does he have anything good to say about her.

[99] His affidavits delivered over the years detail more than ten reasons why he thinks there has been a material change in circumstances (though I grouped them into ten in these reasons). Reading the affidavits, which are voluminous, leaves the impression that Sarah Stevens is rightly concerned about feeling harassed – any detail that may harm her case makes its way into an affidavit. It is also noteworthy that Carrie-Lynn Wilton did not report anything positive that Glynn Nelson had to say about Sarah Stevens; whereas, Sarah Stevens indicated he is a good father. He also prior to the motion to change improperly used the CAS to investigate custody issues. These investigations are intrusions by the State into citizens’ private lives and should only be done when merited by child protection concerns. I appreciate Sarah Stevens would have been upset by these intrusions.

[100] I also found Glynn Nelson turned down various opportunities to correct problems caused by Sarah Stevens’s failure to strictly follow Justice Varpio’s Order. For example, although she did not provide medical appointment dates or updates to him, Glynn Nelson also acknowledged in cross-examination that he took no steps to obtain information from health care providers, even though he has a legal entitlement to this information. He also took no steps to provide a cell phone or tablet to the boys so that he could communicate directly with them. His reasoning is that Sarah Stevens is required by the order to facilitate phone access, not him. This type of entrenched positioning exacerbated the dispute between them. A cheaper, quicker and less litigious way to resolve this issue was easily available to him. He chose litigation instead. I have already found that he has been communicating with the boys via Snapchat and Instagram and so the mischief caused by Sarah Stevens’s failure to facilitate phone contact has been mitigated.

[101] Carrie-Lynn Wilton found the parents had equally involved the police in their custody dispute, with nine calls having been made up to her involvement with the family. Calls to the police continued after the final report. Much like a child protection agency, police involvement in custody issues should be limited to the most serious of cases.

[102] Sarah Stevens’s plan is to continue with the status quo in terms of residence, decision making and parenting time.

[103] Glynn Nelson would like decision making authority and primary residence, while the children would have alternate weekend parenting time with Sarah Stevens and shared holidays.

[104] I find on this record that the boys are doing very well with the status quo. Sarah Stevens takes care of their day-to-day needs as the decision maker and has for many years worked part-time so that she can be home for them.

[105] She has in particular been responsible for the special care that is required for Glynnie given his autism and ADHD. She was involved in his original assessment and diagnosis. She has sought out assistance, such as with Community Living Algoma. Counsel for Glynn Nelson objected to the filing of a letter dated February 24, 2021 from Glynnie’s caseworker – on the basis that he had not had the opportunity to cross-examine the writer. I understand it is a letter and not an affidavit. I appreciate she was not cross-examined. What is important about this letter is that Sarah Stevens has “for a number of years” ensured a caseworker has been there for Glynnie. Sarah Stevens’s evidence is also telling on this point. When she resisted Glynnie attending for lunch at Glynn Nelson’s during school days, she based it on a concern about his routine, his comfort zone and his ability to safely navigate the route. Glynn Nelson, however, framed his request on rights he perceives he has within Justice Varpio’s Order. He took no steps to work with Glynnie and Sarah Stevens to ensure he could safely make the journey and was comfortable with this change.

[106] I accept that structure and routine are vital to Glynnie’s positive development. While he does well sharing his holiday time with his parents, his school life and medical and therapeutic care have been the charge of his mother. I find that it would be contrary to his best interests to disrupt that at this stage. A shared parenting or week-about arrangement would also be contrary to his best interests. The parents’ animosity toward each other would get in the way of the type of communication and joint parenting that Glynnie would need to thrive with such an arrangement.

[107] I have already discussed how well Jack is doing in school. The boys have grown up together their entire lives. They are thriving under the current arrangement.

[108] For his part, Glynn Nelson has ensured that Jack plays hockey and baseball, something he enjoys. He should continue to be responsible for registering Jack in these sports. The costs of these extraordinary extracurricular activities will be discussed later in these reasons.

[109] While I believe that the current arrangement regarding residence, decision making and parenting time should continue in the best interests of the children, there are also some changes that need to be made to Justice Varpio’s Order.

[110] For example, in 2021 it is unrealistic to expect 15 and 11 year old children to stand at the ready two or three days a week to make or receive a telephone call at a time that varies according to their father’s work schedule. Consider as well that this phone schedule was put in place before they spent three weekends out of four with their father. Glynnie has a mobile phone and Glynn Nelson is free to ask him for the number if he wants to call him and his brother directly. He has otherwise already been communicating with them via social media, and this should continue.

[111] I find on the evidence that Sarah Stevens’s mental health crisis in 2017 was situational. She has removed herself from an abusive relationship. She has continued with her medication. She has not required hospitalization. She is dealing with her PTSD in a therapeutic way and it does not interfere with her care for the children. The condition that she provide medical information to Glynn Nelson may have been appropriate in 2017 but that is no longer the case.

[112] Moving forward the parties need to communicate in the children’s best interests. The parties will enroll with the Our Family Wizard application (OFW) and it will be their exclusive method of communication, unless they agree otherwise in writing. OFW allows for communication by email and text messaging. It has a shared calendar for important events such as parenting time. Everything that the parties do with OFW is secure, recorded, stored and time stamped. This information is retrievable by either party for the purposes of court proceedings.

[113] If one party, for example, asks the other to change the pick-up time for the boys, OFW will show when the request was made, when it was viewed, and how long it took the other party to respond. OFW can be used on mobile devices and PC. It offers advice regarding the tone of language used and suggests alternative, less confrontational language.

[114] I expect the parties to use OFW to advise each other about important information impacting the children’s best interests. These updates, however, are not to become opportunities to argue. It is simply a sharing of information that is necessary for the boys’ proper care.

[115] I also expect them to use OFW to share information about themselves that impacts their ability to parent. For example, if one of them is hospitalized or is called out of town on an urgent basis, this will be communicated as soon as possible.

[116] The use of OFW does not prevent the parties from calling each other when there are emergencies that must be acted upon in less than 24 hours. They will exchange phone numbers for this purpose.

[117] I have considered Glynn Nelson’s request for a police enforcement clause with respect to parenting time. I am guided by the decision in Patterson v. Powell 2014 ONSC 1419 which provides a thorough review of the caselaw. Section 36 of the CLRA is available to address existing problems, not potential future ones. The section does not make police enforcement available “as a long-term, multiple use, on-demand enforcement tool” (para. 16). Police enforcement should be used sparingly, as a last resort, and only when it is shown to be required in the best interests of the children (paras 44-62). For reasons I have already discussed, I am not satisfied that exceptional circumstances presently exist that would justify the use of a police enforcement clause.

Child Support

Retroactive adjustment to child support

[118] Glynn Nelson delivered a Motion dated January 29, 2021 seeking to vary child support. It was accompanied by an Affidavit sworn January 18, 2021 which included a break-down of Glynn Nelson’s income.

[119] He is currently required by Justice Varpio’s Order to pay $1,105 per month based on an estimated annual income of $75,000.

[120] Glynn Nelson filed proof of his income for the taxation years 2017, 2018, 2019 and 2020. He asks that I adjust child support based on his actual income for these years, which can be broken down as follows:

a. 2017 – income $77,932 ($246 under paid) b. 2018 – income $76,845 ($732 under paid) c. 2019 – income $63,979 ($1,572 over paid) d. 2020 – income $60,748 ($2,136 over paid)

[121] The Supreme Court of Canada set out the test to determine retroactive increases in child support: D.B.S. v. S.R.G. 2006 S.C.R. 37. In Gray v. Rizzi 2016 ONCA 152 at para. 56, the Ontario Court of Appeal held that D.B.S. equally applies to retroactive decreases in child support and adopted the approach set out in Corcios v. Burgos 2011 ONSC 3326:

[56] First, when applying the adapted D.B.S. principles on a motion to retroactively vary child support, one must always keep in mind the ultimate issue: namely, the best interests of the child: DiFrancesco, at para. 24. As Chappel J. stated, “Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it, and any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated.”

[57] Next, a court should distinguish cases where a payor seeks relief from payment of arrears based on current inability to pay from those where arrears accumulated due to a change in the payor’s circumstances that affected the payor’s ability to make the child support payments when they came due.

[58] A payor’s request for relief from payment of arrears based on a current inability to pay generally will not result in the rescission or reduction of arrears unless the payor has established, on a balance of probabilities, that he cannot and will not ever be able to pay the arrears. Evidence that the recipient agreed to non-payment of the support is irrelevant, as child support is the right of the child and cannot be bargained away by the recipient parent.

[59] Where, however, the payor demonstrates that a change in circumstances took place during the time that arrears were accumulating which rendered the payor unable to make child support payments for a substantial period of time, the court may provide relief by varying the child support order or rescinding arrears. As Chappel J. stated: “[the court] may determine that it is appropriate to retroactively suspend enforcement of the support order during the time when the payor was unable to pay, or decrease the amount of child support owed during that time and reduce or rescind the arrears owing accordingly.”

[60] The present case falls into this second category. While there is no fixed formula a court must follow when exercising its discretion in this circumstance, Chappel J. identified the following factors to guide a court in determining whether to grant retroactive relief, the date retroactivity, and the quantum of relief:

1. The nature of the obligation to support, whether contractual, statutory or judicial;
2. The ongoing needs of the support recipient and the child;
3. Whether there is a reasonable excuse for the payor’s delay in applying for relief;
4. The ongoing financial capacity of the payor and, in particular, his ability to make payments towards the outstanding arrears;
5. The conduct of the payor, including whether the payor has made any voluntary payments on account of arrears, whether he has cooperated with the support enforcement authorities, and whether he has complied with obligations and requests for financial disclosure from the support recipient. As stated by Chappel J.: “Behaviour that indicates wilful non-compliance with the terms of the order or failure to work cooperatively to address the child support issue is a factor that militates against even partial rescission or reduction of arrears”;
6. Delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears;
7. Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears. As put by Chappel J.:

[I]f a retroactive order reducing child support would result in the child support recipient having to repay money to the child support payor, this may militate against making the order, particularly if the payor has not given the recipient notice of the change in their circumstances, has not provided appropriate disclosure to support their claim for an adjustment to the child support, or has delayed initiating court proceedings to change the order. [emphasis added]

[61] If a retroactive reduction of child support is appropriate in light of these factors and any other relevant considerations, the court must determine the date from which the reduction should take place and the extent of the reduction. Following D.B.S., a retroactive order normally should commence as of the date of effective notice that a request is being made for a child support adjustment. It is generally inappropriate for a retroactive order to extend back more than three years before formal notice is given.

[62] Where a payor seeks a retroactive reduction in child support or rescission of arrears, effective notice requires the payor to provide “reasonable proof to support the claim for a change to the [order], so that the recipient can independently assess the situation in a meaningful way and respond appropriately.” As put by Chappel J.:

A child support recipient is entitled to expect that the existing order will be complied with, and to arrange their financial affairs respecting their children accordingly, unless they are in receipt of reasonable proof that a relevant change in the payor’s circumstances has occurred.

[63] This obligation to disclose and negotiate with the recipient parent is ongoing, so that the recipient can assess and react to changes in the payor’s financial situation. A payor’s failure to comply with his continuing notice and financial disclosure obligations most likely will impact the remedy which the court crafts.

[64] Finally, “with respect to the quantum of any retroactive child support order, the Child Support Guidelines apply, provided that the date of retroactivity is not prior to the date when the Guidelines came into force, and subject to the principles set out in the statutory scheme under which the Court is operating.”

[122] In the present case, Glynn Nelson’s income fluctuated from the moment of Justice Varpio’s Order. His income situation is based on employment income and is not complicated compared to, for example, someone that is self-employed. Glynn Nelson should generally be aware of his total income by the end of the calendar year, based on his year-to-date pay statement.

[123] With that in mind, Glynn Nelson did not advise Sarah Stevens that his income increased for 2017 and 2018 until January 2020. In his affidavit sworn January 30, 2020 Glynn Nelson disclosed these increases and estimated his 2019 income to be $64,063. The affidavit does not contain a request to adjust child support. That request was not made until the motion to vary was served January 20, 2021 which also sought a retroactive adjustment for 2020 and previous years.

[124] I have also considered the financial means of Sarah Stevens and the negative impact the requested adjustment would have one her. She was aware, however, as of January 20, 2021 that Glynn Nelson wanted to adjust child support. She should have been aware that his ongoing child support should be based on his reduced income and could have adjusted her affairs accordingly. It is therefore appropriate that I adjust ongoing Guideline child support as of February 1, 2021. I will base it on Glynn Nelson’s income for 2020.

Section 7 expenses

[125] Glynn Nelson estimates that Jack’s hockey costs $1,000 per year; his baseball, $350. I have already discussed the problems the parties had in the past when Glynn Nelson asked Sarah Stevens to split the cost for hockey. Sarah Stevens said she could not afford it and Glynn Nelson ended up registering Jack and paying all the expenses.

[126] I agree the parties should proportionately share these extraordinary extracurricular expenses, provided they do not exceed a combined total of $1,350 annually. Sarah Stevens would currently contribute 35 per cent of these expenses based on an annual income of $32,677. Glynn Nelson will continue to register Jack in hockey and baseball. He will provide to Sarah Stevens proof of payment of the associated expenses incurred. Sarah Stevens will reimburse him her proportionate share within 60 days of receipt of proof of payment.

Conclusion

[127] For these reasons, I order that the Orders of Justice McMillan (dated June 2, 2014), Justice Varpio (dated September 28, 2017) and Justice Gareau (dated May 17, 2019) are rescinded and replaced by the following:

a. Sarah Stevens shall have decision making authority with respect to the children, Glynn Caleb Nelson, born January 24, 2006 and Jack Owen Nelson, born September 01, 2010. The children shall reside primarily with Sarah Stevens, subject to Glynn Nelson’s parenting time and otherwise as set out in this order.

b. Glynn Nelson shall exercise parenting time with the children as follows: i. During the school year, three consecutive weekends during each four-week period from Friday at 4:30 p.m. until Sunday at 7:00 p.m. subject to the following: 1. If the Friday of Glynn Nelson’s weekend is a PD day, the parenting time shall start at 4:30 p.m. on Thursday until Sunday at 7:00 p.m.; and 2. If the Monday following Glynn Nelson’s weekend is a PD day, the parenting time shall be extended to Monday at 7:00 p.m. ii. During the school summer break, alternating weeks, starting at 7:00 p.m. on Friday until the following Friday at 7:00 p.m. For the purposes of clarity, Glynn Nelson’s alternating week begins on the first Friday of the school summer break in even numbered years; the second week, in odd numbered years.

c. Glynn Nelson is permitted to communicate directly with the children via mobile phones or other mobile devices. This includes communication via social media applications such as Snapchat and Instagram.

d. The parties will exercise parenting time with the children on special days as follows: i. Glynn’s Birthday: 1. In even numbered years, the children shall spend time with Glynn Nelson on January 24 from 3:30 p.m. to 6:30 p.m. when there is school, and from 10:00 a.m. to 3:00 p.m. when there is no school. The children shall spend time with Sarah Stevens on January 24 from 6:30 p.m. to 8:30 p.m. when there is school, and from 3:00 p.m. to 8:00 p.m. when there is no school. 2. In odd numbered years, the children shall spend time with Sarah Stevens on January 24 from 3:30 p.m. to 6:30 p.m. when there is school, and from 10:00 a.m. to 3:00 p.m. when there is no school. The children shall spend time with Glynn Nelson on January 24 from 6:30 p.m. to 8:30 p.m. when there is school, and from 3:00 p.m. to 8:00 p.m. when there is no school. ii. Jack’s Birthday: 1. In even numbered years, the children shall spend time with Glynn Nelson on January 24 from 3:30 p.m. to 6:30 p.m. when there is school, and from 10:00 a.m. to 3:00 p.m. when there is no school. The children shall spend time with Sarah Stevens on January 24 from 6:30 p.m. to 8:30 p.m. when there is school, and from 3:00 p.m. to 8:00 p.m. when there is no school. 2. In odd numbered years, the children shall spend time with Sarah Stevens on January 24 from 3:30 p.m. to 6:30 p.m. when there is school, and from 10:00 a.m. to 3:00 p.m. when there is no school. The children shall spend time with Glynn Nelson on January 24 from 6:30 p.m. to 8:30 p.m. when there is school, and from 3:00 p.m. to 8:00 p.m. when there is no school. iii. March Break 1. In odd numbered years, the children shall spend time with Glynn Nelson during the first half of the March Break from 4:30 p.m. on Friday until the following Wednesday at 7:00 p.m. Sarah Stevens will spend time with them from Wednesday at 7:00 p.m. until their return to school. 2. In even numbered years, the children shall spend time with Sarah Stevens during the first half of the March Break from after school on Friday until the following Wednesday at 7:00 p.m. Glynn Nelson will spend time with them from Wednesday at 7:00 p.m. until their return to school. iv. Easter: 1. In odd numbered years, Glynn Nelson shall have care of the said children, from the said children from 4:30 on the day of their release from school for the Easter school break, until the following Monday at 7:00 p.m. 2. In even numbered years, Sarah Stevens shall have care of the said children for the Easter school break. v. Mother’s Day: 1. Sarah Stevens shall have the care of the children on Mother’s Day, starting at 10:00 a.m. vi. Father’s Day: 1. Glynn Nelson shall have care of the children on Father’s Day from 10:00 a.m. until 7:00 p.m. vii. Thanksgiving: 1. In even numbered years, Glynn Nelson shall have care of the said children from 4:30 p.m. on Friday until Monday at 7:00 p.m. 2. In odd numbered years, Sarah Stevens shall have care of the children for the Thanksgiving weekend. viii. Christmas: 1. In odd numbered years: a. Glynn Nelson shall have the children in his care from 4:30 p.m. on their final day of school before the Christmas break until December 24 at 12:00 p.m. b. Sarah Stevens shall have the children in her care from December 24 at 12:00 p.m. until December 26 at 12:00 p.m. c. Glynn Nelson shall have the children in his care from December 26 at 12:00 p.m. until December 28 at 12:00 p.m. d. Sarah Stevens shall have the children in her care from 12:00 p.m. on December 28 until they return to school 2. In even numbered years: a. Sarah Stevens shall have the children in her care from 4:30 p.m. on their final day of school before the Christmas break until December 24 at 12:00 p.m. b. Glynn Nelson shall have the children in his care from December 24 at 12:00 p.m. until December 26 at 12:00 p.m. c. Sarah Stevens shall have the children in her care from December 26 at 12:00 p.m. until December 28 at 12:00 p.m. d. Glynn Nelson shall have the children in her care from 12:00 p.m. on December 28 until the Sunday before they return to school at 7:00 p.m.

e. Glynn Nelson shall exercise such further parenting time with the children as the parties may agree in writing.

f. Glynn Nelson shall be responsible for making arrangements for picking up the children at the beginning of his parenting time and Sarah Stevens shall be responsible for making arrangements for picking the children up following the end of Glynn Nelson’s parenting time. If pick up or drop off is not able to occur due to inclement weather, the missed parenting time will be made up.

g. The parties shall be permitted to attend any extracurricular activities of the children, whether or not it is during their parenting time.

h. Notwithstanding that Sarah Stevens has decision making authority with respect to the children, Glynn Nelson shall be responsible for registering Jack in hockey and baseball. He will pay the costs associated with hockey and baseball and will be reimbursed by Sarah Stevens in accordance with the s. 7 extraordinary extracurricular expenses provision of this order.

i. I find that it is in the best interests of the children for the parties to communicate regarding their children via OurFamilyWizard (hereinafter referred to as “OFW”). The parties are ordered to each establish an OFW Parent Account. Each shall enroll in the program no later than 14 calendar days from today. The parties shall enroll by completing the sign-up process at OurFamilyWizard.com or by contacting OFW Customer Support. i. After registration, the parties shall immediately begin to utilize their OFW accounts via the website at OurFamilyWizard.com or via the OFW mobile applications. ii. The parties shall include the ToneMeter add-on with their OFW subscription. ToneMeter will be used when composing entries to encourage cordial and productive communication. iii. Without prior agreement in writing, the parties shall not email, text or telephone but shall post all communication exclusively on OFW. iv. The parties shall be allowed to communicate by telephone only in matters of emergency regarding the children that must be acted upon in less than 24 hours. In case of such an emergency, the subject and general content of such communication shall be memorialized in a Moment entry in the OFW journal. v. The parties shall only utilize the OFW Message Board feature when information cannot be conveyed in the Calendar, Expense Log, Journal, and Info Bank features. vi. Whenever an entry requires a response, the receiving parent shall respond within 48 hours unless the entry itself indicates that a longer time frame is acceptable. vii. The parties shall elect to receive notifications about new activity on OFW as follows: 1. Notifications for email and text messages: select push notifications (sent “on action” only) 2. Delivery: select On Action viii. The parties shall take advantage of the tools in the Expense Log to record and formalize all potentially reimbursable expenses (such as the extraordinary extracurricular expenses) to mitigate the necessity of further litigation over such matters. An electronic file of the receipt must be attached to each expense entry. The parties shall utilize OFW pay in the Expense Log to initiate e-payments for reimbursements. ix. The parties shall utilize the Check-ins tool in the OFW Journal to memorialize and announce their presence at parenting time exchanges. x. Unless there is an order of this court (or an agreement in writing by the parties) ending their use of OFW or Jack has reached the age of 18, neither party shall fail to renew their annual OFW subscription.

j. Commencing February 1, 2021 and on the first day of each month thereafter, Glynn Nelson (the payor) shall pay to Sarah Stevens (the recipient) the sum of $927 as support for the children, Glynn Caleb Nelson, born January 24, 2006 and Jack Owen Nelson, born September 1, 2010. This amount is based on Glynn Nelson’s annual income of $60,748 and is in accordance with the Guidelines.

k. The parties shall proportionately share the costs of Jack’s hockey and baseball provided the combined costs do not exceed $1,350 per year (s. 7 expenses). Glynn Nelson shall be responsible for paying for these expenses up-front. Sarah Stevens will reimburse her proportionate share (which is currently 35 percent based on her annual income of $32,677) to Glynn Nelson within sixty days of receipt from him of proof of such payment.

[128] Rule 1(6) of the Family Law Rules provides that “when making an order, the court may impose conditions and give directions as appropriate.” Rule 2(4) of the Family Law Rules requires the court to apply the rules in a way that deals with cases justly. (Parham v. Jiang 2013 ONSC 6003 at para. 52). This motion to change took three years to conclude. It is the third time the parties and the children have been before the court in eight years. The children’s best interests would be served by reducing needless litigation between their parents. I therefore order that neither party is entitled to bring a motion or proceeding dealing with custody or access issues without leave of the court. The party seeking leave will provide the motion and supporting documents to the Trial Coordinator. Although I am not seizing myself, given my recent involvement, it is my preference to review any such leave motions.

[129] If the parties cannot agree on costs, Sarah Stevens may within 14 days of the date of this order deliver written submissions of no more than 5 pages, not including a bill of costs. Glynn Nelson will have 10 days to deliver written submissions of no more than 5 pages, not including a bill of costs. There shall be no reply. Any submissions filed outside these timelines will not be accepted.

The Honourable Mr. Justice P.J. Boucher

Released: August 30, 2021

SAULT STE. MARIE COURT FILE NO.: 2995/14-02

DATE: 2021-08-30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Sarah Stevens Applicant/Responding Party

– and –

Glynn Nelson Respondent/Moving Party

REASONS FOR JUDGMENT

Boucher J.

Released: August 30, 2021