R.G. v. J.G., 2022 ONSC 1678

COURT FILE NO.: 641-18

DATE: 2022-04-21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

R. G.

Applicant

– and –

J. G.

Respondent

Chelsey T. Gauthier, Counsel, for the Applicant (Lancaster Chown & Welch LLP)

Christopher Parton, Counsel, for the Respondent

HEARD: January 17, 18, 19, 20, 21, 24, 25, 26, 27, 28, 2022

JUDGMENT

the honourable madam justice l. bale

PART I: OVERVIEW

[1] The issues for determination on this consolidated Application/Motion to Change viva voce trial relate primarily to parenting. Specifically:

a. Conclusion of the outstanding parenting issues arising from the Application commenced in October 2018; and

b. Determination of the Applicant’s Motion to Change the Final Order of the Honourable Mme. Justice W. MacPherson, dated December 10, 2019, as commenced by the Applicant in May 2021.

[2] The parties resolved the issues of spousal support, retroactive child support (including Table and s. 7 expenses), medical benefits, and life insurance on January 26, 2022, pursuant to Partial Final Minutes of Settlement filed, which were incorporated into an Order of this court.

[3] The parties jointly request an Order severing the issue of a Divorce and permitting the parties to proceed on an uncontested basis. The quantum of ongoing child support payable (to be selected by the court from two agreed-upon support scenarios) and treatment of children’s RESP funds and bank accounts are the only other outstanding corollary issues requiring determination. Both parties have filed detailed Draft Orders which specify the precise terms they are seeking.

PART II: BACKGROUND

Relationship History

[4] The parties were married on May 13, 2006 and separated on May 13, 2018.

[5] There are two children of the marriage, namely N.G., and V.G..

Litigation History

[6] The Application which commenced these proceedings by the Applicant mother is dated October 12, 2018.[^1]

[7] On May 9, 2019 the Honourable Mr. Justice R. Reid heard temporary motions brought by both parties and ordered that:

a. The Applicant mother would not transport the children in her Purolator truck, or any other vehicle without safe legal seating for the children;

b. Neither parent disparage the other party or discuss ongoing court proceedings with or in the presence of the children;

c. The Applicant mother’s request for a s. 30 CLRA Assessment was dismissed; and

d. The children would be registered at R.A. Riddell Basketball Academy commencing September 2019.

[8] In July 2019 the Respondent father purchased the Applicant mother’s interest in the matrimonial home pursuant to terms of a partial Separation Agreement. The parties further agreed to temporary terms of child and spousal support.

[9] In September 2019 the Applicant brought a motion requesting, inter alia, a reduction in the father’s parenting time. On October 10, 2019 the Applicant mother was ordered to pay costs of $500.00 to the Respondent father, by Donohue J., as a result of her objection to adjourning the matter to a long motion. Ultimately, the motion was not argued, as the parties resolved the issues at their Settlement Conference.

[10] On December 10, 2019, a Settlement Conference was held, and the parties entered into Minutes of Settlement, which included both Temporary and Final agreements relating to parenting:

a. On a final basis the parties agreed to joint custody of the children, a regular specified parenting schedule, and a general provision agreeing to an equal division of all holidays to be expressly defined by agreement or subsequent court order.

b. On a temporary basis the parties made provision for the 2019 and 2020 Christmas holidays, and the balance of the issues were adjourned to assignment court.

[11] The agreement reached between the parties was incorporated into the Temporary and Final Order of the Honourable Mme. Justice MacPherson, dated December 10, 2019. Minor modifications to the temporary portion of the Order (re: the 2020 Christmas parenting schedule) were ordered on consent on September 18, 2020 by Justice MacPherson.

[12] On February 25, 2021 the Honourable Mme. Justice J.W. Scott awarded costs fixed in the sum of $1,000.00 payable by the Applicant mother to the Respondent father, resulting from the Respondent father’s (previously resolved) motion regarding 2020 Christmas parenting time.

[13] On May 20, 2021 the Applicant mother commenced a Motion to Change proceeding, seeking to vary the final parenting terms (including decision-making and parenting time) as provided for in the December 10, 2019 Final Order. Specifically, the Applicant mother requested sole decision-making authority over the children, and a reduction of the father’s regular parenting time.

[14] On July 14, 2021 a Trial Scheduling Conference was held and the Honourable Mme. Justice W. MacPherson made another Temporary Order that provided:

a. Neither parent shall disparage the other to the children;

b. Neither parent shall engage in conflict in the presence of the children;

c. On access exchanges, one parent must remain in their vehicle, and the other parent must remain in their home;

d. The outstanding Application was placed on the January 2022 trial sittings; and

e. A further Settlement Conference was scheduled for November 17, 2021.

[15] On November 17, 2021 a further Settlement Conference was held before Justice MacPherson. The court ordered that:

a. The Application and Motion to Change proceedings were consolidated; and

b. The Applicant mother’s request for an updated Voice of the Children Report was dismissed.

[16] At the commencement of trial, counsel for the Applicant mother put the Respondent father on notice that she would be bringing a motion to request that the court conduct a judicial interview of N.G. and V.G. This motion was argued on January 25, 2022 after all evidence at trial had been tendered. Pursuant to oral reasons delivered on January 26, 2022, the Applicant mother’s motion was granted. An in-chambers judicial interview took place on January 28, 2022, and the recordings/transcripts of the interview were sealed, as per this court’s ruling.

PART III: EVIDENCE AT TRIAL

Critical Review of the Evidence of the Applicant Mother and Respondent Father

[17] For ease of reference I will review the relevant evidence of the parties by subject-matter below.

a. N.G. and V.G.

[18] Both parties agree that N.G. and V.G. are smart, happy children. They are both well-liked by their peers and have many friends. They do well in school and are athletic, well-rounded children who are involved in extracurricular activities both during and outside of school.

[19] N.G. is in grade 8. He will commence high school in the fall. V.G.is in grade 4. He will continue at his current school until grade 9.

b. Residences

[20] The Applicant mother resides in Hamilton. The Respondent father resides in Stoney Creek, in the former matrimonial home. The distance between their respective homes is an approximate 25 minute drive.

c. Employment and Hours of Work

[21] The Applicant mother has been employed at a courier company for many years. Her hours of work are Monday to Friday from 8:00 a.m. to approximately 4:15 p.m. The end of her day is somewhat dependent upon the conclusion of her route. She has the option to work overtime if she wishes. In 2022 the mother is entitled to six weeks of vacation time through her employment. In all previous relevant years, she has been entitled to five weeks vacation time. She submits requested vacation weeks to her employer in January, and is informed of her given vacation weeks (which is contingent weeks requested by coworkers with greater seniority) by March 1^st^.

[22] The Respondent father’s hours of employment have not undergone any fundamental changes in many years. He works Monday to Friday from 7:30 a.m. to 4:00 p.m. and is entitled to five weeks of vacation time throughout the year. He has a high level of seniority at his company, and typically receives his requested vacation weeks. It is preferable that he submit his requests by March, however he advises that his employer is accommodating and flexible with his schedule. His workplace is a short drive from his home and he is readily available in the event of an emergency.

d. Role as Caregiver to Children During Marriage

[23] The Applicant asserts that she was always the more-involved parent to the children, tending to their primary care during the marriage. The father asserts that he has also been actively involved with the children throughout their lives, and advises that prior to separation he was the parent who arrived home from work each evening first, to care for the children after school.

e. Breakdown of the Relationship

[24] The breakdown of the relationship was a slow burn of building resentments. An argument on Father’s Day 2018 culminated in the Respondent father putting the Applicant mother’s belongings on the driveway while the Applicant mother was out of the home with the children. Police were called and the Applicant mother left the home. She moved into the home of the maternal grandparents and the parties did not reside together again. The Respondent father has resided in the (now former) matrimonial home since that time. The father testified that he regrets his actions on that day.

f. Court Proceedings

[25] Both parties retained legal counsel shortly after separation. The Applicant mother commenced formal court proceedings in October 2018.

[26] The Applicant mother testified that, with respect to the parenting schedule “I wanted the children to spend school nights in their home” (i.e. her home). She further testified that she was in support of a parenting schedule which had the children spending time with the Respondent father on Monday and Wednesday evenings after school (not overnight) and on alternating weekends. Notably, this is the parenting schedule that the mother is again seeking within her Motion to Change proceeding.

[27] The father sought an equal timesharing arrangement in the original Application.

a. Fall 2018 (Commencement of Application) to December 10, 2019 (Partial Final Order)

[28] In or around the fall of 2018 the parties started sharing time with the children on an equal week-on/week-off basis. The Applicant mother testified that shortly after the week-on/week-off arrangement was commenced in the fall of 2018 the children started complaining, saying that they wanted to spend more time with the Applicant mother. The equal parenting schedule continued until December 10, 2019.

[29] A Voice of the Child Report was obtained to canvas the views and preferences of the children which was completed and provided to the parties in late June 2019.

b. December 10, 2019 Final Order

[30] The parties finalized the regular parenting schedule pursuant to Minutes of Settlement entered into on December 10, 2019 at a scheduled Settlement Conference. The Final Order provides for:

a. Joint custody of the children;

b. A final parenting schedule which follows a four-week rotating structure:

i. Week One:

1. Monday 4:30 pm. to 9:00 p.m.;

2. Wednesday from 4:30 p.m. until Thursday at 7:30 a.m.;

3. Friday at 4:30 p.m. until Sunday at 6:00 p.m.

ii. Week Two:

1. Monday 4:30 pm. to 9:00 p.m.;

2. Wednesday from 4:30 p.m. until Sunday at 6:00 p.m.;

iii. Week Three:

1. Monday 4:30 pm. to 9:00 p.m.;

2. Wednesday from 4:30 p.m. until Thursday at 7:30 a.m.;

3. Friday at 4:30 p.m. until Sunday at 6:00 p.m.;

iv. Week Four:

1. Monday 4:30 pm. to 9:00 p.m.;

2. Wednesday from 4:30 p.m. until Thursday at 7:30 a.m.

c. Equal division of all holidays, with a specific schedule to be addressed by further agreement or court order.

[31] The Applicant mother testified that she “wasn’t in the right frame of mind” when she signed the Minutes, due to the stress of being in the courthouse, and the back and forth between lawyers. The Applicant mother advised that the settlement felt rushed, and she did not have time to consider the ramifications of the schedule. Notwithstanding these stated reservations, the Applicant mother testified that she felt hopeful that the parties would be able to work together amicably in the best interests of N.G. and V.G. She felt that even though she would only have the children in her care one out of four weekends, the volume of extracurricular activities that the children were engaged in would result in them still spending frequent and regular time with her on weekends.

[32] In contrast, the Respondent father testified that on the date of the settlement, he observed the Applicant mother in the courthouse lobby – she was laughing, ecstatic even. It appeared to the father that the mother got the ‘better deal’ in the end result. The father noted that they were both represented by counsel. He clearly understood what he was signing and was not rushed. He did not expect that the settlement would resolve their conflict, but hoped that a structured, predictable schedule would help.

[33] The Applicant mother has not sought to set aside the Final Order as a result of any circumstances surrounding the signing of the Minutes of Settlement.

c. Post- December 10, 2019 Final Order

[34] The Applicant mother testified that shortly after implementation of the December 2019 regular parenting schedule the children started complaining to her that they ‘wanted to see their mother more’. She commenced her Motion to Change on May 20, 2021.

[35] The Applicant mother testified that when she retrieves them from the father’s home “it’s like a gasp of fresh air, like – finally”. The father does not share this perspective.

d. Holiday Timesharing

[36] The court heard specific evidence regarding the parties’ inability to amicably divide holiday time equally, as contemplated by the December 2019 Final Order. In general, it appears that as each holiday approached the parties would attempt to divide the time between themselves by text message. If they were not able to agree, which was most of the time, the issue would be referred to their legal counsel. The court heard specific concern relating to:

e. The Summer Schedule:

[37] To date, the parties have not been able to agree to a summer schedule before the summer actually begins. Each year the negotiations appear to continue well into the children’s summer holidays causing uncertainty and frustration for the entire family.

[38] With respect to the summer schedule, it is clear that the Respondent father’s preference would be for a week-on/week-off regime. The Applicant mother has raised various concerns relating to this preference, including such concerns as:

i. N.G. and V.G. are left alone for long periods of time, are bored and are left unsupervised. By contrast, there is always someone home at the Applicant mother’s residence, and far more activity going on;

ii. the children have complained about the presence of a video camera in the home, from which the Respondent father can observe their activities and communicate with them;

iii. Historically the children have had some summer activities (i.e. V.G. had hockey on Monday mornings) and the father could not transport the children to these activities during the day due to his work schedule.

[39] The Respondent father counters that he has ample summer vacation time available to him through his employment, provided he has advance notice of his parenting time. He asserts that all of the Applicant mother’s concerns would be non-issues if the parenting schedule were known to him in advance and he could schedule his vacation time accordingly.

[40] V.G. no longer has hockey on Monday mornings. The video camera is no longer used in the Respondent father’s home.

f. Christmas Holidays:

[41] In her testimony the Applicant mother was critical of the Respondent father’s unwillingness to agree to her multiple proposals regarding the Christmas vacation schedule for December 2020. I have reviewed the multiple text messages exchanged between the parties, and the letters exchanged through legal counsel on this topic. It appears to this court that the Respondent father’s position remained that he was flexible as the specific allocation of days provided that he had the children on Christmas Eve and Christmas morning, because (a) this was specifically ordered by the court on December 10, 2019, and (b) the mother had enjoyed these special days with the children post-separation in both 2018 and 2019. A motion on this issue was commenced, although later resolved on consent. On February 25, 2021, in awarding costs against the Applicant mother for the position taken on this issue, Scott J. ruled that:

“It could not have been clearer that that was the Respondent’s year. He should not have had to bring the motion… I cannot condone unilateral action on the part of parents, and I think it’s appropriate in this circumstance that the Applicant does pay some costs”.

[42] It is concerning to the court that, even in the face of a valid court order, with the benefit of this judicial finding and after having had costs sanctions imposed upon her for her actions, the Applicant mother continued to attempt to justify her position (i.e. to have the children in her care on Christmas Eve and Christmas morning in 2020) at trial. That is, she advanced this disagreement as indicative of the parties’ inability to communicate and make joint decisions in the best interests of the children, noting: “I was angry that we couldn’t agree as adults”, and ‘I can’t afford to fight through lawyers… I just seem to cave to his demands’. She asserts that their inability to agree arises from the Respondent father’s unrelenting position that the division of holiday parenting time must be “50/50”. This belief fails to recognize the Applicant mother’s role in the parties inability to reach consensus on these issues.

[43] Notably, in 2020 (after the schedule had been resolved) the Respondent father fell ill between Christmas and New Years. He reached out to the mother for assistance with the children – she agreed, and he expressed appreciation for her help.

[44] Christmas parenting time for 2021 was resolved with the assistance of counsel in October 2021 and proceeded without incident. It was the Applicant mother’s year for Christmas Eve/Christmas morning. Notably, the Applicant mother asks this court to impose a holiday parenting schedule such that the children be in her care every Christmas Eve and every Christmas morning in future on the basis that during the parties’ marriage they traditionally spent time with the maternal family on these days. The Applicant mother was unwavering in her position that such an arrangement would be fair and in the best interests of the children.

[45] The father has enjoyed only one Christmas Eve/Christmas morning with the children since separation. Moving forward he believes that the children would benefit from enjoying an equal number of such special occasions in his home.

g. Labour Day 2021

[46] The Applicant testified that on Labour Day weekend 2021 she called the police because the father would not let the children return to her at the scheduled time (9:00 p.m.). The police attended, spoke to the parties and the children, and after approximately 30-45 minutes she was permitted to leave with N.G. and V.G.. The mother asserts that there was confusion with respect to the exchange time and testified that “probably both of us were to blame.”

[47] The court was provided with correspondence from the Respondent father’s counsel dated August 27, 2021 wherein the Respondent father proposed that on Labour Day (September 6, 2021) the children be with him from 2:30 p.m. until return to school the following day. No correspondence was received which countered that proposal. In her testimony the Applicant mother alleged that she did not see the letter because it was sent on the Friday before the long weekend. I do not accept this explanation as true: the Friday before the long weekend was September 3, 2021. I find that the Applicant mother either disregarded or misunderstood the return time.

[48] The evidence is clear that the Applicant mother was permitted to leave with the children not because the Respondent father was wrong, but because the Respondent father agreed to let them leave: he did not want to cause any further emotional harm to the children. The children, in particular V.G., was visibly upset by this incident.

[49] The Applicant mother testified that she called the police to prevent an incident because the Respondent father “knows how to push my buttons”. The Applicant mother’s explanation for not simply ‘walking away’ from the situation was unconvincing.

[50] As a result of this event the parties received correspondence from the Children’s Aid Society of Hamilton, warning them of the high risk of long-term negative impact on children who are expose to parental conflict.

h. Holidays Generally

[51] The Respondent father provided a comprehensive proposal to settle the division of all holiday parenting time to the Applicant mother on November 24, 2020. The Respondent father made repeated requests that the Applicant mother respond to this proposal. At no time prior to trial did the Applicant mother respond or provide her own comprehensive proposal to settle this issue.

[52] The father acknowledged that holidays with the mother and the maternal family are a positive experience for N.G. and V.G.. However, he also described equally positive holidays experiences for the children in his home.

i. Parenting Exchanges

[53] The court heard evidence of both parties regarding conflict at parenting exchanges. At present, most parenting exchanges take place at the Applicant mother’s home. The court is advised that generally, the Respondent father retrieves the children from the Applicant mother’s home at the start of his parenting time, and returns the children to the Applicant mother’s home after his weekday parenting time, however sometimes the Applicant mother retrieves the children from the Respondent father’s home after his weekend parenting time.

[54] As noted above, on July 14, 2021 a court order was made which, amongst other things, required the parties to remain in their respective vehicles/homes at parenting exchanges. The court is advised that save and except for the Labour Day incident referenced above, parenting exchanges have been uneventful since that time.

[55] With respect to previous exchanges, the parties testified to the following:

a. The Applicant mother advises that she would attempt to discuss scheduling issues with the Respondent father at exchanges, to which he would reply “please, not in front of the boys”, tell the children to get in the car, and drive away. The Respondent father testified that he does so to avoid outbursts, slamming of doors, etc., in the presence of N.G. and V.G.. In cross examination the Applicant mother acknowledged that the Respondent father does not raise his voice at parenting exchanges.

b. The Applicant mother advises that the Respondent father sends his child support cheques to her in an envelope through the children. One time she told N.G., “I’m not taking it. Take it back”. The Respondent father testified that he is open to any other method of ensuring payment to the Applicant mother – they simply haven’t arranged a different method.

c. In approximately July 2019, at an exchange which occurred in a parking lot, the Applicant mother, who wanted to provide the Respondent father with some insurance papers, grabbed on to the Respondent father’s moving truck and jumped into his backseat while he attempted to back out of his parking spot. This incident occurred in front of V.G. who was in the Applicant mother’s vehicle. Although the court was not advised of the specific date of this event, the Applicant mother estimates that V.G. was 6 or 7 years of age at the time. In cross-examination the Applicant mother was insistent that this conduct was brought on by the Respondent father’s refusal to communicate with her.

d. On July 6, 2020 at a parenting exchange at the Applicant mother’s home the Respondent father attempted to leave with the children. The father testified that the mother was yelling and refusing to close the passenger door where N.G. was sitting. She was demanding a response regarding the return time (this issue was being debated through counsel at the time). The father had to roll the vehicle 8-10 feet forward before the mother would let go. The father did not raise his voice and refused to engage with the mother. The mother was quite angry. The mother’s partner was outside and videotaping the exchange. The father asserts that the mother (or her partner) had previously video-taped exchanges, but the last occasion, to his knowledge, was July 6, 2020. The mother maintains that only one parenting exchange was ever videotaped to her knowledge.

e. In July 2021, during a parenting exchange in which the Respondent was also driving N.G.’ friend home the Applicant mother approached the father’s vehicle repeating to the children “Tell him. Tell him”. The mother was holding on to V.G., who started crying. When the Respondent started pulling away the mother struck the side of the father’s car. The parties disagree as to the strength of the contact. The mother asserts that she did so to get the children to roll down the window because she did not get a chance to hug and kiss them goodbye. The father described that after pulling away V.G. was tearful, N.G. was embarrassed, and his friend looked ‘shocked’ by the incident. The father advises that after a few minutes of conversation and the radio the incident was forgotten.

f. The Respondent testified that when the children are retrieved from his home he says his goodbyes to them indoors and does not engage the Applicant. When he retrieves the children from her home, he parks 3-4 houses up on the same side of the street and remains in his vehicle.

g. The parties agree that the father has never called the police to attend at parenting exchanges, even at times when he felt the mother was unfairly denying his scheduled time with the children.

j. Educational Issues

[56] In the spring of 2019, prior to the December 10, 2019 Final Order of MacPherson J., an issue arose regarding the children’s schooling. The parties received notice that the school the children were attending was closing down for major renovation. The mother became aware of a sports-oriented school in Hamilton that promoted a specialized basketball program. Aware of N.G.’ interest in and aptitude for basketball, the mother obtained a school brochure and presented it to gauge his interest. When N.G. expressed enthusiasm to her regarding the school, the mother applied for the children’s admission to the school. She did not advise the Respondent father. The application process included having N.G. writing an admissions essay. The father was unaware.

[57] In or around April 2019, the mother was notified of the children’s acceptance. She thereafter texted the father, advising him that “N.G. would like to talk to you about something”. After basketball practice that evening, the mother handed the father a brochure in the presence of N.G. and the father and N.G. went off to talk. The mother reported that after the discussion N.G. looked like he was going to cry, he was walking with his head down, and stated that his father was going to “ask his lawyer”.

[58] A motion was heard by Reid J. on May 9, 2019. The court ordered that the children would attend the basketball academy, commencing in September 2019, but made the following comments:

“…the registration in the Riddell school was the unilateral action of the Applicant, without consultation, which involved the children, at least N.G., before the Respondent was even advised of the situation. The net result is that the children were excited, presumably, about the new school and there was the potential then, for the Respondent to come to court and in effect, have to be the bad guy, saying that would an inappropriate school and disappointing the children. So, I agree that that is the bigger problem and I also agree that bad conduct should not be rewarded” … “I think that decision was arrived at in a very inappropriate way and I want to be directly critical of the applicant for doing that”.

[59] In her evidence at trial, the mother acknowledged that she received “a slap on the wrist” for her actions, but felt that the admissions process was a “good experience” for N.G., and that ultimately her school of choice was in the children’s best interests.

[60] The children have been attending at this school since September 2019. Currently N.G. is in grade 8 and V.G. is in grade 4. N.G. will commence high school in September of this year. The parties have agreed on the school he will attend.

[61] The court heard no evidence of any further educational issues relating to the children that caused disagreement or conflict between the parties.

k. Extra-curricular Activities

[62] The children have been actively involved in a variety of sports since they were very young. The Applicant mother has been very involved in the coaching and management of many of the children’s sports teams. At times, both children have participated in elite level rep hockey.

[63] It appears that the mother attends close to 100% of the children’s sporting events. It is also clear that the mother and her family are willing to assist with transportation to and from the children’s extracurricular activities whenever it may be required. The father estimates that he attends close to 100% of the children’s activities when they occur on his parenting time, and about half of the games that fall on the mother’s time.

[64] The mother asserts that the father does not support the children’s activities. She testified that, at times, the children have expressed “shock” that the father is watching. When he is present the mother advises that the father is absorbed in his telephone. The father testified that he is quieter at the children’s activities than the mother is – he enjoys watching the children’s activities, and makes eye contact and gives them the ‘thumbs-up’ to show them his support. He recognizes that the children’s activities are for them and does not overly inject himself into action – he is primarily an observer. Due to past experiences with the mother, he tends to avoid her company in such forums.

[65] To some extent it does appear to the court that the father is somewhat less enthusiastic about the volume and frequency of some of the children’s activities than the Applicant mother may be.

[66] The mother testified that conflict has arisen in getting V.G. ready for hockey games and practices (N.G. no longer requires any assistance except with the tying of his skates). She asserted that the father sometimes doesn’t put V.G.’s equipment on correctly and that V.G. prefers that she assist. The father advises that he would like to assist more in this regard, but does not want conflict with the mother over this issue.

[67] The mother advised that conflict has sometimes arisen in relation to organizing transportation of the children to their various activities. By way of example, she recounted for the court an event which occurred in April 2019 wherein the parties had a disagreement regarding conflicting schedules between V.G.’s hockey, N.G.’ hockey, and N.G.’ basketball. However, the most significant event involving conflict at an extracurricular event, did not involve the Respondent father at all. The court is advised that in the spring of 2019 an altercation between the mother and the coaching staff of N.G.’ then rep hockey team rose to such a level that the mother was screaming outside of the dressing room. The father observed N.G. leave the corridor in tears. Thereafter, N.G. refused to return to the team and has not played rep hockey again.

[68] Text messages exchanged between the parties suggests that the Applicant mother typically suggests the children’s enrollment in a particular sport, or in a particular league. The Respondent father sometimes requests more information, and is sometimes slow to respond, however, court intervention has never been required in the selection of the children’s activities during the life of this file. The father suggests that the mother sometimes enrolls first, and consults second. At times, he would prefer more information regarding time commitment, scheduling, etc. before being pressed to agree.

[69] There is very little evidence to suggest that the father is negligent in ensuring the children’s attendance at or participation in their scheduled activities. In general, it appears to the court that both parents are receptive to enrolling the children in activities that they express an interest in. The father however believes that there should be limits: both in terms of time commitment and expense. He testified that a total budget of approximately $1,200.00 to $1,300.00 per year per child would be reasonable.

[70] The onset of the COVID-19 health pandemic had the impact of shutting down and/or severely limiting the children’s participation in extracurricular activities. The Applicant mother testified that this reduced her already insufficient recreational time with the children, as she could not spend time with the children at their scheduled sporting events.

l. Medical Issues

[71] The children do not have any significant medical issues.

[72] In 2019 V.G. experienced some bowel issues. The parties attended his pediatric appointment together, and the issue eventually resolved itself.

[73] On one occasion N.G. suffered a minor head injury at school. It was the mother’s scheduled parenting day, but she could not be reached. The school’s second call was to the father, who was able to leave work and pick up N.G. from school. The father ensured N.G. was okay, and then dropped him off at the mother’s home, as per the parenting schedule. The father testified that the mother appeared annoyed that the school had reached out to the father. The date of this event is unknown to the court.

[74] In the summer of 2021 N.G. broke his arm – he hit a manhole cover while riding a scooter. The Applicant testified to her frustration in not being able to immediately reach the father at his work to advise him of N.G.’ injury. The father testified that he was in the shop, and it took the Receptionist about ten minutes to track him down to return the call. He felt that perhaps the Receptionist did not understand the urgency of the message. He called the Applicant immediately upon receipt of the message. The father was not permitted to attend at the hospital with the mother and N.G. due to COVID-19 visitor restrictions in place. He spoke with N.G. that same day and cared for N.G.’ injury during his parenting time without issue. The father took N.G. to have the cast removed, with the mother’s approval, at the appropriate time.

[75] There is no evidence before the court that the parties have ever disagreed as to appropriate medical treatment of either child. The written communications between the parties would suggest that they share information appropriately in relation to the medical needs of the children.

m. Specific Events or Issues Raised:

a. Unsafe Transportation

[76] The court heard detailed evidence regarding conflict that arose in approximately March 2019 surrounding the Applicant mother providing transportation for the children in her courier truck, after school on the father’s time, against company regulations, and without proper safety harnesses. The mother testified that she only picked up the children in this fashion on one occasion (either because V.G. needed to use the washroom, or because it was extremely cold outside). The father testified that when he became suspicious that this was occurring, he asked the children: V.G. started to admit it, N.G. stepped in and interrupted him, and thereafter they both denied it. In late March, the father set up his video camera to monitor the front of his house and observed the children to exit the mother’s courier truck. They were not in a rush, and V.G.’s jacket was unzipped – as it was an unseasonably warm day.

[77] I found the mother’s explanations as to the circumstances and necessity of this event to be inconsistent and untrustworthy. I preferred the father’s evidence on this topic: I believe that (a) the transportation occurred more than once, and that (b) the mother encouraged the children to keep this information from the father.

[78] I note that there is no suggestion that such circumstances have occurred again since the spring of 2019.

b. The Fishing Incident

[79] The Applicant advised the court of an event wherein she was critical of the father’s parenting. The court was not specifically advised of whether this event occurred prior to or following the December 2019 Final Order, only that it occurred late in the summer. According to the Applicant, the father took N.G. and V.G. fishing at approximately 9:30 p.m. It was dark out and when they were leaving the fishing spot they noticed some coyotes. They grabbed rocks and sticks to protect themselves. The Applicant advised that no one was hurt but she questioned father’s decision to go fishing at night, noting that it was dark out and he isn’t a very good swimmer. The Applicant testified that she feared for the children’s safety.

c. COVID-19

[80] In December 2020 the Applicant received a notice from V.G.’s school indicating that a student in his class had tested positive for COVID-19. As a result, on December 14, 2020 the mother advised that the father’s time with the children would be suspended for two weeks while the children self-isolated. The mother advised that she was following health protocols as she understood them at the time. This would have resulted in the children remaining primarily in the mother’s care over the Christmas holidays until December 28, 2020. The father protested. Fortunately, both children received negative test results for COVID-19 in short order, and the mother thereafter released the children into the father’s care, as scheduled, without necessity of a motion on the issue.

[81] The father acknowledges that he was not fully vaccinated (i.e. there was some delay in his pursuit of the second dose) until November 2021. He was reluctant to share this information with the Applicant.

d. Information Gathering

[82] The father asserts that:

a. In 2019 he observed V.G. facilitating a facetime video wherein he was showing the mother the perimeter of the father’s bedroom; and

b. On another occasion, in or around 2020, the father observed V.G. taking photographs of the father’s journal, page by page, with his ipod. The father described that when he was confronted V.G.’s expression was one of guilt.

[83] The mother denied ever asking the children to search through the Respondent’s belongings, or gather information on her behalf.

e. Video Camera in the Father’s Home

[84] The mother advised the court that the children expressed discomfort and displeasure with a video camera in the father’s home. The father explained that he has a video camera in his kitchen which monitors the front and side entrance of his home. It has speaker and microphone properties such that, if enabled, he could communicate with the children while at work (if they were in the kitchen). The children never expressed any discomfort to the father about its use. It does not appear that it continues to be in use.

f. Boredom

[85] A common theme in the mother’s evidence was a comparison of the level of activity and engagement of the children in the parties’ respective homes. The mother asserted that the children are bored in the father’s home and spend a disproportionately large amount of time on their devices. The father disagrees with this assessment, asserting that the activities that they engage in at his home may be different activities than those enjoyed at the mother’s home, but just as enjoyable. He acknowledges that there have been occasions when the children have had excessive screentime if he didn’t closely monitor same.

g. Communications between Parents

[86] The mother testified that the Respondent father is not receptive to having discussions with her about how the children feel. She advised the court that he doesn’t respond to her texts. I would note that this suggestion is countered by over 500 pages of text message communications which were filed as an exhibit in this proceeding.

[87] The mother testified that the father is distant and non-responsive to her. The father’s position is that past face-to-face contact has risen to levels of conflict that should not be witnessed by N.G. and V.G.. He attempts to avoid such incidents at all costs. The result is that the parties now do not communicate in person at all. The father acknowledged that this is not ideal, and agreed that N.G. and V.G. could benefit from observing positive interactions between them where possible.

[88] The mother is critical of the father’s default to resolution through counsel when the parties are unable reach consensus. The father’s position is that when they reach an impasse, there is no purpose in further conflictual dialogue between the parties.

h. Communications between Parents and Children

[89] The mother testified that she is in regular contact with the children during the father’s parenting time, typically by telephone call, text message, or snapchat. The Applicant mother led evidence of various snapchat exchanges that she has had with the children while they are in the father’s care. The content of (and concerns regarding) the snapchat communications is reviewed in more detail in the analysis section below.

[90] The father is concerned that the mother involves the children in communications prior to discussion and consensus between parents. He does not agree that the children need to be included in every parenting discussion. In cross-examination the mother acknowledged that she has told the children that the father has not responded to scheduling questions she has posed to him.

i. Children’s Bank Accounts and RESP fund

[91] Bank accounts were opened in the names of both children when they were born. The Applicant advises that she was the sole contributor to the funds during the marriage. An RESP account was also opened in the children’s joint name during the marriage. The Applicant continues to make contributions into the accounts when she can. The Respondent does not. The mother testified that she was required to use some of the funds from V.G.’s bank account following separation, but she has since replenished those funds.

[92] As at the date of separation, the accounts had the following balances:

i. N.G. bank account: $8,105.19

ii. V.G. bank account: $7,622.64

iii. RESP account: $52,226.67

[93] As is the purpose of RESP accounts, the mother intends that these funds be applied towards the children’s future post-secondary expenses. With respect to the children’s bank accounts, the mother advises that she intends to hold the money for N.G. and V.G.’s benefit for use when they are adults.

[94] The parties agree that these accounts were (properly) not equalized in their property settlement.

The Applicant Mother’s Third-Party Witnesses

[95] Much of the evidence tendered at trial by the mother involved unnecessary repetition of circumstances that were not disputed by the father. The mother called eight witnesses (including herself) at trial. The majority of these eight witnesses testified to the same subject-matter, with only minor variation, and with very limited reference to additional material facts. I note from the Trial Scheduling Endorsement Form that the Applicant was to serve and file an Agreed statement of Facts in the trial record 15 days prior to trial. I see no indication that compliance with this direction was attempted. The total time required for the trial of this action could have been significantly reduced if greater effort had been made to identify non-contentious facts and to avoid duplication in evidence.

[96] The common ground covered by almost all of the Applicant’s witnesses included the following:

a. The Applicant mother has always been and remains a very active, involved, and loving parent.

b. The children are comfortable and happy in the mother’s home. N.G. and V.G. share a very strong bond with their mother. The children are very active in the mother’s home, engaged in many physical and outdoor activities, often with their mother.

c. The Applicant mother, and both children, have a very strong connection with the maternal side of their family, specifically including but not limited to the maternal grandmother and grandfather, the Applicant’s brother, and the children’s first cousins.

d. The extended maternal family actively engage with one another, and with N.G. and V.G.. They continue to see each other regularly and are a close-knit family. Family events are fun, involving many group activities and games.

e. The maternal grandparents have always assisted with the care and upbringing of the children. They are very ‘hands-on’ and active grandparents who engage in and enjoy games and physical activities with the children. Since the parties’ separation they have resided in the same home as the Applicant and the children. The children and maternal grandparents are closely bonded and enjoy their time together.

f. The Applicant mother has a social, active, and outgoing personality. The Respondent father is more quiet and reserved.

g. The mother has routinely assisted with the coaching or management of the children’s sports teams. The Respondent father has not. The Respondent father attends fewer of the children’s sporting events than the mother. The maternal family are avid spectators of the children’s extracurricular activities. The Respondent father does not engage with the maternal family at these events.

h. At parenting exchanges the father remains in his vehicle and does not engage with the mother or her family.

i. N.G. and V.G. are smart and active boys.

[97] The third-party witnesses at trial all generally reiterated the above information in somewhat different terms. There is no need to recap this information individually. The court heard and observed the following from these witnesses:

a. J. D. - Paternal grandfather: The paternal grandfather was a credible witness at trial. He did not attempt to provide evidence that exceeded the scope of his own observations. He did not denigrate the father and acknowledged the love and affection between the children and both of their parents. It was clear that J.D. is an excellent grandfather to all of his grandchildren. Generally, the paternal grandfather’s evidence fell in the class of non-contentious and often-recited information noted above. His evidence was not challenged.

b. S.D. – Paternal grandmother: At the outset of her evidence the maternal grandmother acknowledged that she and the father never shared a close and comfortable relationship. Notwithstanding this acknowledgment, the maternal grandmother remained respectful and balanced in her evidence regarding the father. With respect to parenting exchanges the maternal grandmother described that the mother would attempt to communicate with the father in a ‘civil’ manner, who would not engage or ‘turn his back’, which would frustrate the mother and increase the level of tension. In cross-examination S.D. acknowledged that the mother’s voice would then get louder. The court was left with the impression that after the first attempt at civility, the mother’s demeanour would become far less polite at parenting exchanges. S.D. described that the children have expressed frustration to her with spending the majority of their weekends in the father’s home, and have reported some complaints with respect to lack of activity in his home during summer months. At times, they have also expressed concern regarding the uncertainty in their schedule and the conflict that this causes. In her examination in chief S.D. also volunteered activities that the children have reported enjoying with their father (e.g. car racing, fishing, movies, etc.). Some of the terminology utilized by S.D. in describing the Applicant mother included that she ‘lives for’ N.G. and V.G., ‘caters’ to them, and sometimes ‘spoils’ them: “they are her whole life”, “her #1” priority. By contrast, she asserted that the father’s relationship with the children was ‘not as close as it could be’. Although more clearly more aligned with the mother than some of the other third-party witnesses, I found the maternal grandmother to be a credible witness.

c. A.D. - Paternal uncle: The paternal uncle was more critical of the Respondent father in his evidence, noting his lack of engagement with family members (including the children) at the maternal family functions. However, the uncle also provided constructive criticism of his sister, the Applicant, noting that at times she appeared overprotective of the children. The paternal uncle recalled observing a heated discussion between the Applicant and Respondent about money, but did not provide information about the timing of this event. The paternal uncle testified to his observations regarding two parenting exchanges:

a. August or September 2021: The mother walked the boys to the father’s vehicle. He could hear yelling and arguing between the parents. He heard a car door slam. He did not hear what the parents were saying and does not know who slammed the door.

b. December 2021: An uneventful parenting exchange occurred. The Respondent mother remained inside her home.

c. Again, although the paternal uncle’s evidence appeared slightly more aligned with the Respondent mother than some of the other witnesses, he remained a credible witness at trial.

d. M.K. - Father’s neighbour: M.K. became close to the Applicant mother when they resided across the street from one another during the parties’ marriage. M.K. continues to reside across the street from the father. She shared her observations as to the mother’s positive parenting attributes, as noted during the parties’ relationship. She was not critical of the father’s parenting attributes, noting that she did not get to know him as well. To her observation N.G. and V.G. are “happy normal kids”. She has had limited involvement with the parties post separation, and has not observed any parenting exchanges. M.K.’s evidence was impartial, credible and not challenged.

e. R.D. - Mother’s niece: R.D. is the children’s 18 year-old first cousin. She has a close relationship with N.G. and V.G.C R.D. advised the court that during any parenting exchanges that she has observed, the Respondent father is quiet and does not appear to want to engage in communications with the mother: the father appeared to be trying to get the children into the car quickly while the mother was saying goodbye. She further advised the court that N.G. has communicated to her that he does not want to be involved in his parents’ conflict, he does not want to pick a side, and he wants to remain neutral. R.D. is careful to reassure N.G. that the conflict between his parents is not his fault. R.D. struck the court as a mature and insightful young woman. Her evidence was credible and not challenged.

f. A.D. – Mother’s nephew: In addition to describing the common topics noted, above, A.D. advised the court that the children have described engaging in more organized activities while at the mother’s home. He described one occasion when the children met him at a park near their father’s home, but their time with him appeared to be limited by a curfew of sorts imposed by the father. A.D. was a balanced and thoughtful witness. His evidence was credible and not challenged.

g. R.S.Y. – Mother’s partner: R.S.Y. is the Applicant’s partner of two years. The court formed the following impressions of R.S.Y.’s evidence:

a. R.S.Y.’s evidence was very partial and clearly aligned with the Applicant mother.

b. He was overly critical of the Respondent father and took every opportunity that presented itself to inject unnecessary criticisms into his testimony (e.g. asserting that the father ‘doesn’t look up from his cell phone’ at children’s sporting events, is not a good swimmer, parks too far away at parenting exchanges, doesn’t put the children’s hockey equipment on properly, leaves the children in the car when he grocery shops, he keeps their birthday money, etc). In effect, a large portion of R.S.Y.’s evidence appeared to be repetition of complaints shared with him by the Applicant.

c. R.S.Y. lacked insight into the additional level of stress that his presence at parenting exchanges was causing. R.S.Y.’s videotaping of parenting exchanges, and his belief that he was justified in doing so is even more troublesome.

d. R.S.Y.’s perception of the children’s views and preferences was not compelling. In particular, his reiteration of the children’s views (i.e. all ‘complaints’) were in my view highly exaggerated over-generalizations. I do not accept R.S.Y.’s repeated opinion that when the children are at the father’s home they ‘just sit in the house and do nothing’.

e. R.S.Y. offered the following information, which if accurate, is very concerning for reasons not intended by R.S.Y.:

i. R.S.Y. overheard N.G. ask his mother “how much longer before I can say no to going to dad’s house”, to which the Applicant mother replied “that’s your choice – if you don’t’ want to go, he can’t force you to go”.

ii. When the children are leaving for the father’s home the Applicant always says “have fun, hopefully you’ll do something”;

iii. When the children return from the father’s home, the Applicant always tells them that she missed them; and

iv. During the event wherein the children were fishing at night with their father, the mother was crying and repeatedly trying to get a hold of the children, without success.

The Respondent Father’s Third-Party Witnesses

[98] The Respondent father only called one third-party witness at trial.

[99] A.R. - Father’s neighbour: A.R. moved in next door to the Respondent father five years ago. He described that the two houses are close together, separated by the father’s driveway. He observes the father and children actively interacting and engaging in activity in the driveway (e.g. basketball, etc.) ‘all the time’.

[100] A.R.’s windows also sometimes provides him with a view (and sound bite) of parenting exchanges. At times he has observed the father to say “not now” when the mother attempts to engage in discussions at the exchanges. To his observation, the Applicant mother appears to instigate tension and conflict, but that the Respondent father always remains extremely calm.

[101] In the fall of 2021, A.R. observed an event of significance at a parenting exchange, which was the primary focus of his evidence. With respect to that event, A.R. described the following:

a. The raised voice of the Applicant mother garnered his attention “It was loud - she was basically screaming at the boys to get into the vehicle”;

b. A.R. did not go outside but observed the incident from his window;

c. The Applicant mother appeared very angry for reasons unknown to A.R.;

d. A.R. observed the children to be upset, sitting on the front steps. V.G. was crying and ‘was vomiting sick because he was so upset’; and

e. Police attended the scene.

[102] A.R.’s evidence was unshaken in cross. He too was a compelling and credible witness.

Office of the Children’s Lawyer Clinician

[103] A Voice of the Child Report was completed in June 2019 at the request of the court, with the consent of both parties. The clinician, Ms. Mary Polgar, was also called as a witness at trial. The clinician conducted two interviews of the children in June 2019. N.G. and V.G. were 11 and 7 years of age, respectively, at the time.

[104] In June 2019, the children were expressing a desire to spend slightly more time with their mother than with their father. They suggested that they would prefer to spend more time with their mother during the week, and with their father on weekends. These views and preferences were communicated to the parties prior to the finalization of the regular parenting schedule in November 2019.

[105] Appropriately, the OCL clinician advised that she could not comment upon the likelihood that the children’s views and preferences may have changed or evolved since that time.

Judicial Interview

[106] At the conclusion of the evidence at trial the Applicant mother brought a motion to request that the court exercise its discretion to conduct a judicial interview of the children, pursuant to s. 64 of the Children’s Law Reform Act, R.SO. 1990, c. C. 12. For oral reasons given, I granted this request and an in-person, in-chambers judicial interviews of N.G. and V.G., both together and individually, took place on January 28, 2022. As ordered, the audio recording and transcript of that interview have been sealed.

[107] A detailed review of the court’s discussions with the children will not be provided. However, identification of the following themes, which emerged during the interviews, is appropriate. In general, N.G. and V.G.:

a. love both of their parents very much;

b. feel safe, happy, healthy and comfortable in each of their homes;

c. are content with the ‘amount’ of time that they spend with each of their parents;

d. enjoy different activities with each of their parents in both of their homes;

e. want their mother and father to agree to a schedule and commit to the schedule, but to be somewhat flexible if special occasions or opportunities arise from time to time;

f. worry that their mother is sad when they are not with her and believe that their mother worries about them a little too much when they are with their father;

g. expressed that a more equal sharing of weekend down-time in both homes might be preferable to the current schedule; and

h. most importantly, want their parents to be mature with and kind to each other, because at present - they are not.

[108] It appeared to the court that both children were hesitant to offer any negative commentary about either parent, other than to note they both need to work on the conflict that exists between them. With that exception, they appeared to speak quite freely during the interview process. I was satisfied that the children did not appear to have been coached or intentionally influenced by either parent. Both children were a pleasure to interview.

PART IV: THE LAW

Parenting Issues:

[109] The parenting relief sought at this trial is made as corollary relief to a claim for Divorce. The governing legislation is the Divorce Act, R.S.C., 1985, c. 3 (2^nd^ Supp.).

[110] With respect to the finalization of holiday parenting time, communications between the parties, and other incidents of parenting, the court’s jurisdiction is found under s. 16.1 to s. 16.3. With respect to the Applicant’s request to vary the terms of the Final Order of Justice MacPherson dated December 10, 2019, regarding decision making authority and the regular parenting schedule, the court’s jurisdiction is found under s. 17. In both scenarios, the applicable considerations are found under the “best interests” test as enumerated in s. 16.

Parenting Orders

The court’s jurisdiction to divide and allocate the children’s holiday parenting time between the Applicant and Respondent, and to finalize any other outstanding incidents of parenting (e.g. restrictions on communication, etc.) under the original Application, is found in the following provisions of the Divorce Act:

Parenting order

16.1 (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by

(a) either or both spouses; or

(b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.

Contents of parenting order

(4) The court may, in the order,

(a) allocate parenting time in accordance with section 16.2;

(b) allocate decision-making responsibility in accordance with section 16.3;

(c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and

(d) provide for any other matter that the court considers appropriate.

Terms and conditions

(5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.

Parenting time — schedule

16.2 (1) Parenting time may be allocated by way of a schedule.

Day-to-day decisions

(2) Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(a) has exclusive authority to make, during that time, day-to-day decisions affecting the child.

Allocation of decision-making responsibility

16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.

Variation, Rescission or Suspension of Orders

The court’s jurisdiction to vary the decision-making model and regular parenting schedule of the parties, as provided for the in the Final Order of MacPherson J., dated December 10, 2019, is found under the following provisions of the Divorce Act:

Variation order

17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,

(a) a support order or any provision of one, on application by either or both former spouses;

(b) a parenting order or any provision of one, on application by

(i) either or both former spouses, or

(ii) a person, other than a former spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent; or

(c) a contact order or any provision of one, on application by a person to whom the order relates.

Conditions of order

(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought, and the court has the same powers and obligations that it would have when making that order.

Factors for parenting order or contact order

(5) Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9).

Conduct

(6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought.

[111] The leading case regarding motion to change proceedings involving parenting issues remains the Supreme Court of Canada’s Decision in Gordon v. Goertz, 1996 191 (SCC). At that time the court explained that:

a. The operative order of the court is presumptively correct;

b. A variation proceeding is not an appeal or trial de novo;

c. Before considering the merits of an application for variation, the court must be satisfied that there has been a material change in condition, means, needs or other circumstances of the child, since the last parenting order was made;

d. Change alone is not enough, the change must have altered the child’s needs or the ability of the parents to meet those needs in a fundamental way; and

e. The change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order: paras 10-14.

[112] These principles have now been consistently accepted and applied in Canadian courts for over 25 years. Subsequent cases have expanded upon the requisite degree of materiality, permanency and foreseeability of the purported change(s), but the core threshold test remains the same:

“…before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order”: Gordon, at para. 13.

[113] If the threshold ‘material change’ test is met, the court must then consider the matter afresh in consideration of the current best interests of the child: Gordon, at para. 17. As recently reviewed in K.M. v. J.R., a high conflict motion to change (parenting) proceeding also heard under the recently amended provisions of the Divorce Act, Justice Pazaratz summarized the applicable principles of this second step as follows:

a. Once a material change in circumstances has been established, the court then embarks on a fresh inquiry into the best interests of the child. P. v. G.-P., 2009 ONCA 782.

b. Section 16(3) sets out a non-exhaustive list of factors for the court to consider in considering the circumstances of a child and determining best interests.

c. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. The court should consider the matter afresh without defaulting to the existing arrangement. Bubis v. Jones, 2000 22571 (SCJ); Persaud v. Garcia-Persaud, 2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642; E.M. v. M.Q., 2021 ONCJ 533.

d. At this stage the court should consider all of the evidence – which may include evidence predating the previous order – to conduct a comprehensive analysis of the best interests of the child. Segal v. Segal, 2002 41960 (ON CA); E.M. v. M.Q., 2021 ONCJ 533.

e. At the second stage of the analysis, the best interests test is the only test to be applied. E.M. v. M.Q., 2021 ONCJ 533; Young v. Young, 1993 34 (SCC).

f. The court must ascertain the child's best interests from the perspective of the child rather than that of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child. Gordon v. Goertz; Young v. Young, 2003 3320 (ON CA).

g. Similarly, the court’s disapproval or sanctioning of one parent’s inappropriate behaviour should not result in an order which creates entitlements by the other parent which are not in the best interests of the child. Ruffudeen-Coutts v. Coutts, 2012 ONCA 263.

h. Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs. Gordon v. Goertz: K.M. v. J. R., 2022 ONSC 111 at para. 71.

[114] The Applicant mother bases her position on the theme that ‘ongoing conflict and conduct contrary to the spirit of a parenting order may constitute a material change in circumstances’: Zinck v. Fraser, 2006 NSCA 14 at paras. 18-20. The Applicant mother relies upon the cases of Velarde-Alverez v. Sousa, 2018 ONCJ 567, J.T.R. v. L.L.J., 2017 ONCJ 455, Hackett v. Sever, 2017 ONCJ 193, Simms v. Brown, 2016 ONSC 6125, Lavrienko v. Lavrienko, 2015 ONSC 6073, Gordon v. Gordon, 2015 ONSC 4468, Ball v. Sibley, 2011 ONSC 438, Greenberg v. Greenberg, 2009 70507 (ONSC) to demonstrate circumstances where deterioration in communications between parents, increased conflict, lack of cooperation and an inability to make joint decisions warranted court ordered change from joint decision-making making to sole-decision-making parenting models. I have reviewed and noted the unique factual circumstances of each of these individual cases.

[115] Likewise, the Respondent father basis his position on the theme that ‘where conflict existed at separation, continued through litigation, and existed at the time the operative order was made, the conflict may not constitute a material change in circumstances’: Litman v. Sherman, 2008 ONCA 485 at paras. 36-37, Goldman v. Kudelya, 2017 ONCA 300 at paras. 41-43. The Respondent father has provided the case of Joachim v. Joachim, as a recent example of substantial and continuing conflict, and ongoing immature and unreasonable behaviour between parents failing to meet the threshold condition of a material change in circumstances: [2021] O.J. No. 6488.

[116] What is clear is that there is ample jurisprudential support for the positions advanced by both parties, and that this case must be decided on its own unique facts, in consideration of the specific circumstances and best interests of N.G. and V.G..

Best Interests Test

[117] The applicable factors to be considered under the Divorce Act in determining the best interests of N.G. and V.G., both in relation to the parenting issues outstanding under the original Application, and as raised on the mother’s Motion to Change, are 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.

[118] In considering a child’s best interests under s. 16, the Divorce Act specifically requires the court to prioritize the child physical, emotional and psychological safety, security and well-being. In doing so, in addition to considering the enumerated best interests factors, the court must specifically:

a. Consider the presence and impact of family violence; and

b. Apply the principle of maximum contact between children and their parents, to the extent that the time between parent and child is consistent with the best interests of the child.[^2]

[119] Application of the best interests test is a flexible and fact-driven exercise, tailored to the needs and circumstances of the child’s whose well-being is under consideration – “case by case consideration of the unique circumstance of each child is the hallmark of the process”: Van de Perre v. Edwards, 2001 SCC 60 at para 13. The analysis must remain centered on the rights of the child, from a child-centred perspective – the ‘rights’ of a parent are not a criterion: Young v. Young, 1993 34 (SCC) at para. 42. Since parenting decisions are “pre-eminently exercises in discretion, the wide latitude under the best interests test permits courts to respond to the spectrum of factors which can both positively and negatively affect a child”: Young, at para. 74.

[120] The leading case in Ontario with respect to the appropriateness of joint parenting regimes in circumstances of conflict and communication issues between parents is Kaplanis v. Kaplanis, 2005 1625 (ONCA). In Kaplanis, the Ontario Court of Appeal set aside the trial judge’s decision to award joint custody as (a) there was no evidence of historical cooperation and appropriate communication between the parents and (b) it was inappropriate to order joint decision-making in the hope that it would improve the parenting skills of the parties: at para. 2. In the years that have followed the Court of Appeal has repeatedly been asked to consider the appropriateness of joint parenting regimes in circumstances of conflict and communication issues between parents:

a. In Ladisa v. Ladisa, the court upheld the trial judge’s decision to award joint custody as appropriate where, despite parental strife, when necessary the parents could and had communicated effectively in the best interests of the children: 2005 1627 (ONCA);[^3]

b. In Ursic v. Ursic, the court upheld the trial judge’s decision to award joint custody where, despite the conflict between them, the parties were able to cooperate on all major decisions affecting the child, with the exception of his schooling: 2006 18349 (ONCA);

c. In Roy v. Roy, the court set aside the trial judge’s decision to award joint custody where the record was replete with evidence of the “enormous antipathy and mistrust that pervaded” the parenting relationship: 2006 15619 (ONCA);

d. In Lawson v. Lawson, the court reiterated that joint custody is not appropriate where parents are unable to cooperate or communicate effectively. However, the court added the qualification that “one parent cannot create problems with the other parent and then claim custody on the basis of lack of cooperation”: 2006 26573 (ONCA), at para. 15;

e. In Giri v. Wentges, the court upheld a trial judge’s award of sole custody, reiterating that “joint custody requires mutual commitment between parents to cooperate on matters pertaining to the raising of their child, and an ability for the parents to put their own interests behind those of the child”: 2009 ONCA 606 at para. 10;

f. In May-Iannizzi v. Iannizzi, the court upheld the trial judge’s finding that joint custody was feasible and that the parties were capable of implementing a joint custodial arrangement, despite allegations of past domestic violence: 2010 ONCA 519;

g. In B.V. v. P.V., the court again upheld a trial judge’s award of sole custody where the trial judge was not satisfied that the parties could effectively co-parent, as per the significant conflict and serious allegations levelled against one another: 2012 ONCA 262;

h. In Berman v. Berman, the court upheld the trial judge’s award of sole custody to one parent based upon her finding that the degree of cooperation and communication necessary to warrant a joint custodial arrangement was not present. The court rejected the submission that where there is “some evidence” of cooperation and communication, that joint custody should prevail. The court reiterated that “it is for the trial judge to assess whether the parties’ ability to cooperate and communicate effectively in making parenting decisions warrants a finding that joint custody is in the best interests of the child”: 2017 ONCA 905 at para. 5;

i. In Reeves v. Bland, the court upheld a trial judge’s decision to award sole custody to one parent where the parents were “unable to communicate in a constructive way on any sustained basis, and in particular with respect to substantive issues concerning [the child’s] life”: 2018 ONCA 263, paras. 9-15;

j. In Monforts v. Clarke, the court explained that even in parallel parenting regimes, where each party is allocated different spheres of decision-making, the parties must demonstrate some ability to communicate so as to navigate inevitable gaps in court orders: [2019] O.J. No. 4662 at para. 4.

[121] As noted in Khairzad v. Macfarlane, there has also been a notable trend in recent years to order a joint decision-making regime in circumstances where such an order is required to safeguard against a power imbalance: 2015 ONSC 7148 at para. 21. Such circumstances have included scenarios wherein one parent attempts to limit the other’s relationship with the child, or to prevent access to information, or appears to be primarily responsible for the conflict between the parties: See also Levesque v. Windsor, 2020 ONSC 5902 (Div. Ct.) at para. 22, and Y.Y. v. L.F., 2019 ONSC 1718 (Div. Ct.).

[122] These principles have not been altered as a result of the amendments to the Divorce Act that came into effect on March 1, 2021, which amongst other things, replaced the concepts of sole joint and ‘custody’ with allocation of ‘decision-making responsibility.’

Maximum Contact

[123] The Respondent father objects to any reduction in his regular parenting time, as requested by the Applicant mother. He argues that such a change would clearly be contrary to the court’s obligation to give effect to the principle that V.G. and N.G. should have as much contact with both of their parents as is consistent with their best interests.

[124] Maximum contact is a mandatory principle (i.e. maximum contact with both parents is usually in the best interests of a child), but maximum contact is not an absolute principle (i.e. it must be considered in the whole analysis of the child’s best interests): See Gordon v. Goertz, at para. 24 and Reeves v. Bland, at paras 21-22. Compelling reasons should present themselves before parenting time between parent and child is significantly curtailed: failure to consider the principle of maximum contact remains an appealable error: B.V. v. P.V., at paras 15-16.

[125] However, the maximum contact principle does not necessarily require equal parenting time: Rigillo v. Rigillo, 2019 ONCA 647 at para 13, Knapp v. Knapp, 2021 ONCA 305 at 30-34.

[126] The Applicant asserts that the Respondent father’s approach to parenting time, in particular – his insistence in equal holiday parenting time, is akin to “bean counting”, which is not a child-centered approach to parenting: see Veneris v. Veneris for discussion relating to minute-for-minute requests for make-up time: 2015 ONCJ 49 at paras. 65-67.

Views and Preferences of the Child

[127] With respect to consideration of the views and preferences of children in parenting proceedings, in Jackson v. Jackson, the court provided the following guidance:

The wishes of a child are relevant to the best interests analysis, particularly in cases involving older children. However, as the Ontario Court of Appeal recently emphasized in L. (N.) v. M. (R.R.), 2016 ONCA 915 at para. 36, “the wishes of the child and the best interests of the child are not necessarily synonymous.” The weight that should be attached to a child’s expressed wishes will depend on numerous factors, including the age, intelligence and maturity of the child, their overall developmental status and capacity to form and articulate preferences, how clear the child’s wishes are and the consistency of those wishes over time (Decaen v. Decaen, 2013 ONCA 218; Stefureak v. Chambers, 2004 34521 (ON SC), [2004] O.J. No. 4253 (S.C.J.); Heuer v. Heuer, 2016 ONCJ 201 (O.C.J.)). In addition, in determining the weight, if any, which should be accorded to the child’s expressed wishes, the court should consider those wishes in the context of all of the circumstances of the case and carefully assess if there are any concerns as to whether the expressed wishes are an accurate reflection of the child’s true feelings. The court should give little weight to a child’s expressed wishes if the evidence indicates that those wishes have been tainted by negative influence, inducements or alienation exerted by the other parent or any other individual (L. (A.G.) v. D. (K.B.) (2009), 2009 943 (ON SC), 93 O.R. (3d) 409 (S.C.J.) at paras. 143-149; O.(C.) v. O. (D.), 2010 ONSC 6328 (S.C.J.) at para. 16; Decaen, at paras. 42, 44-45; L. (N.) v. M. (R.R.), at paras. 33, 36).

[128] While the child’s best interests are not necessarily synonymous with the child’s wishes, the older the child, the more a parenting order requires the cooperation of the child. This necessitates an understanding of the child’s views: see Kaplanis at para. 13.

Family Violence

[129] Family violence is specifically defined in s. 2 of the Divorce Act:

Family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property.

Financial Issues:

Registered Education Savings Plans

[130] Monies held in children’s Registered Education Savings Plans are properly excluded from equalization calculations: J.B. v. D.M., 2014 ONSC at para. 121, Greene v. Greene, 2017 ONSC 3007, at para.158.

PART V: ANALYSIS

[131] One of the complicating issues in this litigation is that the parties’ original Application was not yet complete when the Applicant’s Motion to Change was commenced. At times, this caused a lack of clarity between (a) what parenting issues remain to be decided under the original Application, and (b) what parenting issues must meet the threshold test of ‘material change in circumstances’ before the court should consider “re”-deciding the issues on a Motion to Change.

[132] In order to provide structure to the legal analysis which follows, it is necessary to closely review the wording of the Temporary and Final Minutes of Settlement dated December 10, 2019, which were incorporated into the Temporary and Final Order of MacPherson J., dated December 10, 2019, in relation to each topic, in order to determine the nature of the court’s review.

[133] Of note, the introductory words to the Minutes of Settlement read only “The parties agree to the following, subject to the approval of this Honourable Court”, and the parties did not include any additional waivers or release terms which would provide guidance as to whether the agreement was a comprehensive and fulsome in nature, or a partial settlement of some of the issues in dispute. Paragraph 12 of the Minutes of Settlement provides that “the remaining issues, including but not limited to s. 7 expenses, extracurricular activities, and equalization, shall be adjourned to assignment court”.

a. Paragraph 1: Joint Custody Designation

[134] Paragraph 1 of the Minutes of Settlement provides that the parties shall share joint custody of the children. By this paragraph, I am satisfied that the parties agreed that they would have joint decision-making authority over all aspects of the care of the children. What is less clear is whether the parties intended this paragraph to conclude all incidents of parenting arising under the parties’ respective claims. In that regard, the Minutes of Settlement do not make provision for, inter alia:

a. Day to day decision-making;

b. Emergency medical care;

c. Communications between the parties;

d. Access to information;

e. Communications with the children;

f. Conflict management;

g. Travel provisions;

h. Children’s official documents;

i. Right of first refusals; and

j. Name changes.

[135] Both parties have filed draft Orders in this proceeding, requesting that the court address these issues. In the circumstances of this case, I conclude that:

1. First, the Final Order clearly provides for a joint custodial arrangement (i.e. joint decision-making authority over all aspects of the children’s care). In order for the court to award sole decision-making authority to the Applicant mother over all aspects of the children’s care, as requested by the Applicant, she must first establish that there has been a change in circumstances, relevant to this issue, which affects the best interests of N.G. and V.G. in a material way, as per s. 17(5) of the Divorce Act.

2. Second, the issue of “extracurricular activities” from the original Application was specifically preserved as an issue that had not been finalized by paragraph 12 of the Minutes of Settlement/Final Order. I find that the parties did not finalize issues arising from the children’s extracurricular activities, which might include such topics as decision-making authority over registration, obligation to contribute to the cost of these activities, transportation to events and activities, etc. As such, these are outstanding issues that must be decided based upon the best interests of N.G. and V.G. as part of the original Application.

3. Third, I find that the balance of the parenting relief claimed by the parties as per the draft orders filed, i.e., other incidents of parenting, were not finalized by the parties’ Final Minutes of Settlement and constitute “remaining issues” under the original Application pursuant to paragraph 12 of the Minutes of Settlement/Final Order. In my view, to find otherwise would require a duplication of proceedings that would be contrary to the primary objective of the Family Law Rules. As a result, these remaining incidents of parenting must be decided solely in consideration of the best interests of N.G. and V.G., without necessity of either parent establishing a material change in circumstances.

b. Paragraph 2: Regular Parenting Schedule

[136] Paragraph 2 of the Minutes of Settlement/Final Order details an agreed-upon parenting schedule. As such, in order for the court to modify the existing regular parenting schedule, as requested by the Applicant, she must again first establish that there has been a change in circumstances, relevant to this issue, which affects the best interests of N.G. and V.G. in a material way, as per s. 17(5) of the Divorce Act.

c. Paragraph 3: Holiday Parenting Schedule

[137] Paragraph 3 of the Minutes of Settlement/Final Order provides that the parties would have equal parenting time with the children during all holidays “with a specific schedule to be addressed by further agreement between the parties or court order”. As a result of this wording, I am confident that the division of holiday parenting time is a “remaining issue” for determination of the original Application as per paragraph 12 of the Minutes of Settlement/Final Order.

A. Issue #1: Decision-Making Authority

[138] The Applicant urges the court to find that there has been a material change in circumstances, since the December 10, 2019 Final Order of MacPherson J., which would warrant a change of the current joint custodial arrangement, to sole decision-making authority in her favour. She argues that there is a “plethora” of evidence related to ongoing and increasing conflict between the Applicant and Respondent regarding “almost all holidays”, and many parenting decisions with respect to the children’s activities, schooling and medical matters. She asserts that the Respondent’s uncooperative attitude and refusal to communicate with the Applicant on parenting issues renders their joint custodial arrangement unworkable. With respect, I disagree.

a. Inability to Agree on Holiday Schedule

[139] It is obvious to the court that the parties’ inability to agree on holiday parenting time has been the primary source of conflict between them over the course of this litigation. The court was referred to hundreds of pages of text messages between the parties and letters exchanged between counsel on this issue. The court heard about multiple incidents of unpleasantness at parenting exchanges and the resultant turmoil suffered by the children directly caused by the holiday schedule (or lack thereof), and of multiple instances where motions were both threatened and brought as a result of the parties’ inability to agree on this issue.

[140] The Final Order of December 10, 2019 specifically contemplated that the parties would equally share holidays with the children, and that the issue would be determined by agreement between the parties or by court order. The Applicant and Respondent were not able to reach agreement on the specific division of holidays, and as such, they require judicial determination of this issue. The parties agreed to joint custody with the knowledge that they had not yet finalized their holiday parenting arrangement - they were unable to agree on a holiday schedule in December 2019 and remain unable to agree today. In my view, it is not appropriate to rely upon the parties’ failure to resolve an issue outstanding in the litigation as a basis upon which to revisit a term that they did agree upon. I do not accept that the recurrent disagreement over holiday parenting time constitutes a material change at all. To the contrary, the parties are in the same position today that they were in December 2019.

[141] However, even if this court were satisfied that the conflict arising between the parties as a result of the holiday parenting schedule constituted a material change in circumstances, the court would not rely upon the conflict to award sole decision-making authority to the mother. In reaching this conclusion I find the following:

1. I do not accept that it was the actions of the Respondent father that resulted in the conflict over holiday parenting time. I find that it was the Applicant mother who did not honour the spirit of the holiday parenting arrangement by attempting to undermine the parties’ agreement to share the children equally during the holidays, and in particular during the summer months. I do not accept the mother’s position that the father approached the division of holidays in ‘bean-counting’ manner. The father was attempting to comply with a court-ordered parenting time: he was flexible as to the structure of the holidays, provided that he had equal opportunity to spend time with the children. His actions were not unreasonable.

2. With respect to conflict over Christmas parenting time in December 2020, I find that the mother attempted to disregard the (temporary) Christmas parenting terms specifically ordered by the court in December 2019. Her attempts to circumvent the clear provisions relating to the father’s parenting time with the children on Christmas Eve and Christmas morning in December 2020 were unfair to the children and the father. The Applicant mother’s insistence that the children should be in her care every Christmas Eve and every Christmas morning is unreasonable. It was contrary to the specific term regarding Christmas 2020 and contrary to the spirit of their agreement for future holidays.

3. The rather dramatic incident which took place on Labour Day 2021 in the presence of the children should have been avoided. The mother’s opinion that “probably both of us were to blame” is not supported by the evidence. Whether through innocent misunderstanding or intentional disregard for previous communications, I find that the Applicant mother alone forced this very unpleasant confrontation, and in doing so caused emotional harm to the children. It was the Respondent father who put the children’s interests ahead of his own, permitting the children to leave with the Applicant when he was not required to do so, in an effort to protect the children from more distress.

4. The father made a comprehensive Offer to Settle all holiday parenting time in November 2020. Despite repeated written requests to respond to this proposal, the Applicant did not respond, and did not provide any proposal of her own until trial. The result was that for more than fourteen months the parties had to address each and every holiday as the occasion approached. Often, they did not resolve the issue until the eve of the holiday, or even mid-way through. As a result, almost every holiday was met with escalating tension and uncertainty, and the children were impacted negatively. There is no reasonable explanation for the Applicant’s refusal to discuss a comprehensive holiday calendar.

[142] I am concerned that the Applicant mother has little insight as to how her own behaviour was often the cause of the conflict over holiday parenting time. She incorrectly conflates the father’s disagreement with her (sometimes unreasonable) requests as a lack of cooperation. In my view, even if the court were satisfied that the Applicant mother had established a material change in circumstance, the appropriate remedy would not be a change in decision-making authority in her favour.

b. Educational, Medical and Religious Decisions

[143] The only conflict that the court heard over educational decision-making authority (i.e. N.G.’ school) predated the Final Order of December 10, 2019. The Applicant mother has already received judicial criticism regarding her conduct on that occasion and it need not be repeated. Since that time the parties have faired quite well with educational decisions. There was no dispute between the parties regarding in-person v. remote learning for the children during the Covid-19 health crisis. There is no dispute over where N.G. will commence high school in September 2021, and the parties presume that V.G. will likely follow this same path. There is no suggestion that the children’s educational needs are not being optimized under the present arrangement. To the contrary, the children are faring very well academically under the joint decision-making regime in place.

[144] The court heard no evidence of dispute or disagreement over the children’s religious upbringing.

[145] The evidence before the court with respect to the children’s medical issues leads the court to conclude that the parties have also been very ably navigating the children’s medical needs together since December 10, 2019. The parties both demonstrated appropriate information sharing with respect to the children’s medical circumstances, and have both demonstrated an ability to care for the children appropriately when special medical needs arise. Covid-19 vaccinations for the children appear to have been a non-issue. I am not satisfied that there have been any examples of material conflict in relation to meeting the health and medical needs of the children at all.

[146] There are no factual circumstances relating to education, health care, or religion that cause this court concern in relation to the parties’ ongoing ability to meet the needs of the children under the current joint custodial regime. There has been no material change in circumstances since December 10, 2019 which would warrant variation of decision-making authority on these grounds.

c. Breakdown in Communications Generally

[147] The mother argues that the father’s refusal to engage in discussions with her regarding the needs, views, and preferences of the children impedes their ability to parent in such a manner that a joint-parenting regime is now unworkable. Once again, I am concerned with the mother’s mischaracterization of the parties’ conduct. The father is not refusing to communicate with the mother – there are hundreds of pages of text messages between the parties that confirm otherwise. Rather, he is refusing to communicate with the mother on contentious issues in the presence of the children. The father’s reluctance to do so is well warranted – the mother appears to anger easily and to let her emotions get the best of her. The children have witnessed the mother:

a. Screaming and yelling in public;

b. Blocking the father’s vehicle to prevent his exit;

c. Climbing into the backseat of the father’s vehicle against his wishes to gain his audience;

d. Hanging on to his vehicle door so that he could not leave a parenting exchange; and

e. Slamming her hands on, and slamming the doors of, the father’s vehicle in frustration.

[148] The mother believes that these acts were justified because of what she perceives as the father’s silent treatment and refusal to engage. She does not recognize that her own pattern of aggressive outbursts reflects a pattern of coercive and controlling behaviour which constitutes family violence under the Divorce Act. Repeated exposure of N.G. and V.G. to these behaviours puts both children at heightened risk of emotional and psychological harm and the court is obligated to consider this conduct. The father’s efforts to maintain peace in the presence of the children should be commended, not vilified. His reluctance to engage in the discussion of contentious subject matter with the mother in the presence of the children is not ‘stone-walling’, as alleged, but rather a reasonable protective measure he has been compelled to put in place to shield N.G. and V.G. from conflict. In my view, it would bring the administration of justice into disrepute to permit the Applicant to orchestrate a material change in circumstances in this proceeding by relying upon her own poor behaviour. As discussed above, this court has jurisdiction to make orders managing the parties’ communication and conflict management as outstanding relief under the original court Application. The finding of a material change is not a prerequisite to do so in this case.

[149] I am not satisfied that a material change in circumstances has occurred since December 2019 in relation to the parties’ ability to make decisions jointly in the best interests of N.G. and V.G.. Despite their parental strife, where necessary the Applicant and Respondent can and do make decisions together that reflect the best interests of the children. That their communications on difficult subject-matter are currently best left to written form does not detract from this ability.

[150] The Applicant mother’s request to vary the joint custodial designation, ordered on consent on a Final Basis on December 10, 2019 by Justice MacPherson, to sole-decision making authority in her favour over all aspects of the children’s care is dismissed. The conflict and communication issues which continue to exist between the parties are more appropriately addressed under terms of a comprehensive parenting order, as incidents of parenting outstanding under the original Application proceeding.

d. Extracurricular Activities

[151] The determination of issues surrounding extracurricular activities were expressly reserved to trial by the parties. The court heard a large body of evidence relating to N.G.’ and V.G.’s participation in sports.

[152] The mother has been subject to significant criticism by this court in relation to her post-separation conduct and contribution to conflict. However, it is also important for the mother to understand that the court was very impressed by her commitment to and involvement in N.G.’s and V.G.’s athletic endeavours. The Applicant is clearly a very active, energetic and engaged mother. Her devotion to the children’s participation in physical health and activity is remarkable and she should be commended for her efforts.

[153] While the father may be less of a driving force in relation to the children’s athletic pursuits, his lesser engagement at sporting events should not be conflated with lack of interest – he simply demonstrates his support through quieter means - a ‘thumbs up’ instead of an air horn.

[154] Overall, the court’s impression of the evidence tendered at trial on this issue is that:

a. Both N.G. and V.G. have benefitted physically, socially, and emotionally from their participation in sports;

b. Both the Applicant mother and Respondent father are receptive to enrolling the children in sporting activities that they express an interest in;

c. The father is far more concerned with:

i. The time commitment involved in the children’s sports;

ii. The financial cost of these athletic endeavours;

d. Generally, it appears that the parties have reached consensus on extracurricular activities for the children through the following process:

i. The Applicant mother discusses potential athletic activities with the children;

ii. The Applicant mother proposes a sport, team and organization to the father;

iii. The father requests more information relating to the schedule and the cost,

iv. The father considers the issue for an undefined period of time, and then the father accede the mother’s request.

e. The Applicant mother and her family are always willing to assist with the children’s transportation to and from athletic activities to ensure their attendance; and

f. The Applicant mother and her family have been lifelong avid hockey fans, and have participated in the sport as players, coaches, managers, and referees. Hockey forms an important connection between the children and the maternal side of their family.

[155] Managing high-level sports in a high-conflict family is not easy. Children who engage in rep-level athletics need parents who can cooperate to juggle competing practice times (as sibling schedules, employment hours and other household commitments often conflict), coordinate transportation to local and distant centres, exchange equipment between houses as needed, and balance the higher costs associated with equipment, registration fees, tournament fees, hotels, travel, and extra training sessions. High level athletics can be a recipe for disaster in family court. Except in this case, it wasn’t. With all of this additional potential for conflict, the court heard surprisingly few complaints:

a. Yes, the mother could have been more receptive to the father’s suggested activities and concerns regarding time and expense;

b. Yes, the father could have responded more quickly to the mother’s suggestions and requests to commit;

c. Yes, once or twice there was a missing elbow pad or other piece of needed equipment; and

d. Yes, once or twice the parties engage in petty squabbles over who would be permitted in the dressing room with a child.

[156] But these minor disputes do not reflect negatively on the parties – we do not demand a standard of perfection. To the contrary, these are examples of rather typical disputes between caring parents, whether together or separated, who are committed to the participation and success of their children in the demanding world of high-level sports.

[157] With respect to the children’s extracurricular activities moving forward, it is logical that, except in exceptional circumstances, a parent should not require the consent of the other parent to enroll the children in activities that do not impact the other parent’s time with the children and to which they do not expect financial contribution. The court must necessarily be more concerned with sports activities that require extensive cooperation of both parties to implement. In that regard, I find the following:

a. It is in the best interests of N.G. and V.G. that they continue to engage in extracurricular activities. Both children have demonstrated an aptitude for and interest in athletic activities in particular.

b. The evidentiary record confirms that hockey and basketball, at both rep and house league levels, are activities that the children have historically participated in and should continue to benefit from if they so desire. The parties should be sharing in the cost of registration and equipment for these activities. However, with respect to hotel fees and transportation costs: (i) the parties led insufficient evidence as to the frequency and cost of such expenses, and (ii) requiring the parties to share in such expenses would invite far too much potential for dispute. As a result of this court’s decision on regular parenting time, weekend travel to tournaments, etc., should fall approximately equally on both parents’ time, and the related expense should simply be the responsibility of the parent with regularly scheduled care of the children at the relevant time.

c. There is insufficient evidence before the court to impose an annual financial cap on the children’s extracurricular activities, as requested by the father.

d. Typically, rep or high-level sports are more costly and require greater time commitment than house league or recreational level sports. On the particular facts of this case, and in consideration of the specific best interests of these two active children, it is reasonable to limit enrollment to a maximum of (a) one rep or high-level sport, or (b) two house league or recreational sports, for each child at any given time.

e. It is in N.G.’ and V.G.’s best interests that both parents continue to be involved in and supportive of their extracurricular activities, and that the children see both parents having an important voice in the decision-making process. This court is hopeful that the parties will continue to consult with one another on all activities, and to consider the aptitudes and preferences of the children in this regard. However, in an effort to minimize unnecessary dispute, to ensure the inclusion of both parents in the decision-making process, and to expedite enrollment of the children in time-sensitive situations, in situations where the parties are unable to agree: the Applicant mother with have final decision-making authority over fall and winter sports, and the Respondent father will have final decision-making authority over spring and summer sports. Unless otherwise agreed, it is reasonable to expect that the selected sports associations/organizations should be local to Hamilton or Stoney Creek.

Incidents of Parenting

[158] With respect to a majority of the remaining incidents of parenting, a comparison of the parties’ respective draft orders would suggest that the parties agree that:

a. Both are capable of making day to day decisions for the children when they are in their respective care;

b. Both should be promptly notified of emergency medical issues;

c. They should utilize Our Family Wizard (“OFW”) as a communication platform for sharing important information about the children moving forward;

d. They should both have unfettered access to information from the children’s care providers;

e. If one parent is unable to care for the children for any extended period of time, the other parent should be given opportunity to do so;

f. The children should only be transported in safe and legal vehicles;

g. The children should be free to have daily communication with both parents, and no restrictions on communications between parent and child are necessary;

h. Neither party should be exposing the children to any disparaging commentary about either parent, discussing the conduct of this litigation or engaging in other age-inappropriate discussions with the children.

[159] As such, terms pertaining to these issues will be incorporated into the Final Order of the court with the presumed consent of both parties. I agree that all such terms reflect common-sense, good parenting, and are appropriate in the best interests of N.G. and V.G..

[160] Because the uncertainty of the holiday schedule has caused pervasive stress for this family unit, it is recommended that all parties strictly adhere to the parenting order that has been crafted to meet the specific best interests of N.G. and V.G. and the unique needs of this family. However, as trust is regained between the parties and their relationship improves, as I am hopeful it will after the pain and stress of this trial settles, in special circumstances the parties might request minor deviations from the agreement. It is imperative that if such requests are made, they be broached in writing through the OFW application, and never raised for the first time in the presence of the children. If reasonable requests are made in this fashion, they should be considered openly and honestly by the other parent.

[161] In order to further shield the children from conflict, this court will impose restrictions on the parties’ use of the children as messengers and the sharing of sensitive information with them. Arrangements will need to be made, whether through the Family Responsibility Office, automatic deposit, etransfer or otherwise, for child support and s. 7 reimbursements to be paid directly between the parties.

[162] There was no evidence led with respect to any basis for changing the children’s names, as requested by the Applicant. The children’s names have formed a central part of their identity for over a decade. I decline to permit the Applicant to change the names of the children without the express written consent of the Respondent. The children will be free to revisit this issue themselves upon reaching the age of majority if they are so inclined.

[163] Strict provisions will also be put in place with respect to conduct at parenting exchanges. Again, the terms are self-explanatory and designed to reflect what is working well in relation to the current status quo, and to impose additional measures to avoid the high conflict the children have been exposed to in the past.

[164] In keeping with the parties’ shared role in decision-making responsibility, both parties should have a shared role in the maintenance and possession of the children’s official documents. The children are in the physical care of the mother slightly more than with the father, so she will be custodian of the documents that are used with greater frequency (e.g. the children’s health cards). With respect to passports, on the evidence before me, I am of the opinion that the father is less likely to engage in mischief when the release of the documents is necessary for travel, and therefore he shall be custodian of same. Copies of such documents should be exchanged upon request.

[165] The parties will note that the court is not ordering a complete prohibition on face-to-face communications taking place between them. Once again, it is hoped that the parties’ relationship will evolve to the point that they can engage in polite conversation, on non-contentious issues, in the presence of the children. Until that time, communication in writing through the Our Family Wizard platform is a perfectly acceptable forum for communication. N.G. and V.G. have lost faith that they will ever see their parents genuinely smile and wave at the other at the basketball court, bring a coffee to the other at the arena, or sit together at their graduations. I plead with the Applicant and Respondent to move past this litigation and prove them wrong.

[166] The balance of the parenting terms below are all self-explanatory. They are designed to mitigate risk of conflict in the presence of the children and to minimize their level of discomfort.

B. ISSUE #2: Parenting Schedule

[167] In considering the parenting schedule this court is tasked with:

1. First: finalizing an equal holiday parenting schedule, as per the original Application, and

2. Second: assessing whether there has been a material change in circumstances which warrants a variation of the regular parenting schedule.

[168] The recurrent themes of managing parental conflict, and appropriately considering the views and preferences of the children are important to both issues.

Holiday Parenting Schedule

[169] The parties agreed that their holiday parenting schedule should be ‘equal’. This is consistent with the maximum contact principle: 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. I agree with the parties that it is in N.G.’ and V.G.’s best interests to enjoy holidays and special occasions in both of their homes, and that neither home should be given priority over the other. Further, I am completely satisfied that an equal holiday division, and specifically during summer months, on the facts of this case is consistent and compatible with all of the best interests factors listed in s. 16(3) of the Divorce Act on the specific facts of this case.

[170] Again, it is important to reiterate at the outset that the division holiday parenting time has, in this court’s view, been the primary source of the harmful conflict between the parties. Both children are completely safe in each of their parents’ respective care – it is the conflict of the parties in the presence of the children that causes the court concern as to the children’s emotional and psychological safety, security, and well being. As a result, it is the management of conflict that becomes a primary consideration in crafting a holiday parenting schedule that will allow the children to enjoy these special occasions in both of their homes free from stress and conflict. Labour Day 2021 is the best and most recent example of the type of holiday conflict that needs to be avoided moving forward.

[171] As a result, the holiday schedule must be one that:

a. Is structured and predictable;

b. Minimizes face to face exchanges; and

c. Provides opportunity for N.G. and V.G. to benefit from special occasions and holiday down-time with both of their families in both of their homes on an approximately equal basis.

[172] Within the special dynamics of this family, and from a strictly child-centred approach, I believe that maintaining a schedule which follows the regular parenting schedule as closely as possible, resulting in the fewest number of confusing variations to the parenting schedule is most appropriate. Further, the parties’ past practice of carving up ‘days’ rather than weekend blocks during holidays has served to unnecessarily increase the number of exchanges between homes (and resultant opportunity for conflict), and has not worked well. N.G. and V.G. are of an age where they do not need to see both parents on all minor holidays every year. As such, the regular parenting schedule will dictate where the children will reside on Halloween, the Family Day, Easter, Victoria Day, Canada Day, August Civic Holiday, Labour Day and Thanksgiving weekends, and birthdays. The holidays will be extended to incorporate the statutory holiday, where specifically prescribed in the order section below. I recognize that the schedule may not result in an exactly equal division of holidays every year, but will generally average out over the years that follow.

[173] With respect to the other specific holiday issues raised:

a. The court did not hear any evidence with respect to past travel, or future inclination of the parties to travel with the children. However, it is logical that if such future opportunities arise, travel should primarily occur while the children are not scheduled to be in school. Both parties are free to travel with the children during their regular scheduled parenting time, including over the summer and Christmas school holidays. With respect to March Break, in an effort to avoid future dispute, the Applicant mother may travel with the children during even-numbered years, and the Respondent father may travel with the children during odd-numbered years. If travel is not scheduled, the children will follow the regular parenting schedule.

b. I am not satisfied that is in the best interests of N.G. and V.G. to spend every Christmas Eve and every Christmas morning in the care of the mother. These holidays will be reversed in alternate years. Detailed provisions regarding the equal division of the balance of the Christmas holidays follow below and are self-explanatory.

c. The Mother’s Day and Father’s Day provisions which follow below are logical and self-explanatory.

d. I am specifically satisfied that a week-about parenting schedule is in the best interests of N.G. and V.G. during their summer holidays from school. In particular:

i. The schedule is simple and predictable, reducing the potential for confusion or conflict.

ii. The schedule requires only one parenting exchange per week, thus serving to minimize the potential for face-to-face conflict at exchanges;

iii. With the benefit of an established and consistent schedule, both parties will be able to arrange their respective vacation weeks from work early in the year to maximize their time with the children. I am satisfied that the father will make every effort to arrange his affairs in this manner, thus addressing the Applicant mother’s concerns regarding prolonged periods of (a) lack of supervision, and (b) boredom of the children during the summer months.

iv. Both parties will be able to enroll the children in summer camps as they see fit, on their own respective time, without requirement of consent or financial contribution from the other parent, thus further reducing the potential for conflict on this issue.

[174] To be clear, it is intended that the only regularly scheduled parenting weekends that might ever be impacted by the holiday parenting schedule should be the weekends that fall during the children’s Christmas vacation from all school, and on the Sundays of Mother’s Day and Father’s Day. Regularly scheduled weekend parenting time will not be impacted by the summer parenting schedule, March Break, or any other statutory holiday. The regular alternating weekend schedule, as ordered below, should remain constant and should now be known to the parties for many years to come.

Regular Parenting Schedule

[175] Although the Applicant mother has not sought to set aside the Final Order of December 10, 2019 as a result of any circumstances surrounding the Final Minutes of Settlement, her claims that she ‘wasn’t in the right frame of mind’ at the time of settlement due to the stress of litigation bear comment. I am satisfied that both parties fully understood the nature and consequences of their parenting agreement. The Applicant and Respondent were both represented by family law counsel. The parties had the benefit of and clearly considered the content of the Voice of the Child Report that had been in their possession for many months. The court action had been outstanding for more than a year. The Minutes of Settlement were typewritten. Any substantive amendments to the documents were handwritten, and related primarily to the financial issues. The agreement was not rushed. The end result was more favourable to the Applicant mother: varying a de facto week-about parenting schedule by reducing the father’s parenting time and providing the mother with primary residence of the children. The agreement is presumptively correct.

[176] In the Motion to Change proceeding, the Applicant mother argues that the persistent conflict between the parties, in combination with the changed views and preferences of the children constitute a material change in circumstances, warranting variation of the regular parenting schedule. On the very specific facts of this case, I agree:

1. First, the views and preferences of the children as to the regular parenting schedule appear to have changed in a material way since the Final Order of December 10, 2019; and

2. Second, the regular parenting schedule, has not proven to be in the best interests of the children. In particular:

a. The schedule has resulted in far too many parenting exchanges (at times, up to six per week) which has exacerbated conflict between the parties; and

b. The structure of the parenting schedule (in particular the division of weekend parenting time) has rendered the equal division of holiday parenting time, which is in the best interests of the children, almost unworkable.

Both problems have escalated conflict and tension between the parties in the presence of the children to levels which require redress.

Views and Preferences of the Children

[177] In reaching the December 2019 agreement relating to the regular parenting schedule, the parties very clearly considered the views and preferences of the children, as reflected in the Voice of the Child Report dated June 25, 2019. At that time, the children were expressing a preference to spend ‘a bit more’ time in the mother’s home, and preferably during weekdays. It is noteworthy that at the time of the interviews, the children were attending at before school-care during the father’s scheduled weekdays. At present, the children no longer require before-school care, and are now expressing a different opinion. The children are not requesting a reduction of time with the father, but rather an adjustment of time to permit them to spend weekends in the care of both parents.

[178] I believe that the opinions of the children are primarily impacted by their mutual desire to see their parents get along. While they are not requesting a reduction of time with either parent, they would endorse and abide by any change in schedule that might result in their parents getting along better. N.G. and V.G. are 14 and (almost) 10 years of age respectively. They are both intelligent and mature. With respect to the weight to be afforded to their views and preferences, I am mindful that they appear to be in a loyalty bind, and both appear to be acting somewhat protectively towards their parents. Further, while I do not believe that either parent has intentionally coached or influenced the opinions of the children, I do have concerns about the more subtle (and sometimes no-so-subtle) pressures they have been exposed to.

[179] The children are aware that the mother is dissatisfied with the amount of weekend parenting she enjoys with them (i.e. approximately one weekend per month).

[180] A brief comment upon the communications entered evidence between the mother and the children is appropriate. The Applicant mother introduced select Snapchat communications between herself and the children into evidence, presumably in an effort to demonstrate the children are bored or unhappy in the father’s care.

[181] Special consideration of the evidentiary value of Snapchat communications (or lack thereof) is warranted. Snapchat is an instant communications application available for use on mobile telephones, devices, etc. In general, the main concept of Snapchat is that any picture, video or message (aka ‘snap’) is only available to the receiver of the communication for a short period of time before it becomes inaccessible. That is, unless the receiver of the message opts to save or take a screenshot of a specific message shortly after receipt, the message ‘disappears’ into cyberspace. In most circumstances the reliability of any evidence proffered to the court from saved snaps should be extremely suspect: the traditional equivalent of providing only one line of a handwritten document, without further context or authentication.

[182] However, in this case, the Respondent father did not object to the entry of the mother’s communications into evidence - presumably because he accurately predicted that the communications might achieve results unintended by the mother. I have carefully reviewed the Snapchat communications provided. I am cognizant that these were only the messages that the mother herself thought important enough to save for litigation purposes, and that there may be an abundance of other Snapchat communications that are positive, negative, or totally innocuous in nature. I am also mindful that most of the communications are not date-stamped and there is little evidence that the communications occurred post-December 2019. Notwithstanding these evidentiary concerns, the Snapchat communications entered into evidence by the mother compel comment. I am concerned that the mother lacks awareness that many of the communications reflect poorly upon her. Some of the cause for concern includes the following:

1. The mother advised the court that N.G. in particular will send a text snap to the mother when he doesn’t want the Respondent father “to find things out”. Encouraging this practice could be viewed as promoting secrecy between parent and child.

2. The mother advised the court that V.G. sends emojis to “cheer me up when he is not around”. This (recurrent) theme suggests that the children are overly worried about the emotional state of the mother when they are not with her. This constraint is unfair to the children and may impact their ability to truly relax and enjoy their time with their father free from guilt and emotional stress.

3. The content of some of the mother’s messages suggest to the children that their father’s care is substandard. For example, criticizing the father’s purchase of clothing at a thrift store, questioning the children’s bedtimes/wake times, and (with respect to the fishing incident) - repeatedly requesting confirmation from the children that they were safe. The father is an able caregiver. These intrusions were unnecessary and unfair.

4. The mother seems to be overly receptive to rather empty complaints from the children. For example, seemingly endorsing the ‘unfairness’ of N.G. having to drink tap water rather than bottled water while vacuuming on a hot day.

5. The mother subtly denigrates the children’s time with their father. For example, asking “did you do anything special today besides vacuuming?”.

6. The mother asks leading questions of the children regarding their interactions with the Respondent father. For example, asking “He doesn’t care??”. Again, the mother is suggesting to the children that the father does not care for the children to the same degree that she does.

[183] The cumulative effect of this messaging is an impression that the mother desperately needs the children to prefer her to the father: she wants her relationship with the children to be more special, more meaningful, more important; for the children to think of her and miss her when she is not with them; and for the children to believe that she loves them more and is more capable of providing care to them than their father. This is most unfortunate, as apart from the actions which arise from her insecurities, the mother appears to this court to be an otherwise exceptional mother to N.G. and V.G.. Both N.G. and V.G. are aware of the heightened need of the mother to be reassured of their love for her. They make extra effort to reassure her that they are thinking of her and miss her. This has a cascading effect: the mother misinterprets the children’s efforts to reassure her of their bond as a preference to always be in her care. She then advocates more ferociously for increased time with the children, causing heightened conflict and tension between the parties to the detriment of the children.

[184] Maybe the mother will simply disregard these observations and concerns as unfounded and continue in her campaign – as many people do in family court matters. But perhaps instead, this mother, who loves her children more than anyone else in the world, will rise to the challenge: to take a moment to reflect upon these comments, to honestly analyze her behaviour, and seek to make meaningful change for the benefit of her children. Parenting cannot be a popularity contest. It is not a sign of good parenting to be identified as the favoured parent. In fact, the reverse is true: a far more impressive reflection of good parenting are children who are permitted to love and enjoy both of their parents freely and equally, without pressure, and without guilt.

[185] N.G. and V.G. do both state that they would like increased down-time with their mother. While I am alert to the very real possibility that N.G.’ and V.G.’s opinions are overly impacted by their awareness that the mother would like to spend more time with them on weekends, I also believe that they would like to experience relaxed down-time with both of their parents. However, N.G. and V.G. were also clear that they are not asking for a reduction of time with their father. If a scheduling change could be made that would bring calm to their lives, they would endorse it. N.G. and V.G. clearly want to please both of their parents, and remove cause for conflict. They appear open to almost any solution that might bring peace to their family. This viewpoint is an important consideration that the court must consider.

Problems with the Regular Parenting Schedule

[186] Neither party is bound by employment hours which require them to deviate from the rather typical arrangement of sharing care of the children on alternating weekends. It appears to this court that the parties agreed to their somewhat atypical parenting schedule primarily on the basis of the expressed opinions of the children as contained within the June 2019 Voice of the Child Report, when N.G. and V.G. were 11 and 7 years of age respectively.

[187] I find that the regular parenting schedule has not proven to be in the best interests of N.G. and V.G. since implementation in December 2019.

[188] First, I find that the structure of weekend parenting time has been problematic. Weekends provide families with much needed down-time, a period of respite from the before school rush, homework and afterschool activities, and earlier bedtimes needed to permit children to repeat the routine the following day. The limited weekend time between mother and children pursuant to the Final Order has resulted in limited quality down-time for the children with the Applicant, and increased resentment on the part of the mother, which has contributed to ongoing tension and conflict, to the detriment of the children.

[189] Second, the regular parenting schedule necessitates frequent ‘back-and-forths’ between homes, and a large number of parenting exchanges in an already tense environment. In some weeks, the children experience six transitions between their parents’ respective care. These transitions between households can be stressful to N.G. and V.G., as mostly clearly evidenced by the police and child protection intervention resulting from the Labour Day exchange in September 2021. Both N.G. and V.G. are becoming increasingly independent. They are at ages/stages of development where they can tolerate longer periods of time in each of their respective households. The potential for conflict at parenting exchanges can now be minimized by reducing the number of transitions between households and extending the length of parenting blocks.

[190] Third, the regular parenting schedule in its current form has made an equal division of holiday time almost unnavigable. Because the Applicant mother does not typically have the children in her care on weekends, she fights hard to obtain as much of the holiday weekend parenting time (which primarily occurs on weekends) as is possible. Likewise, because most of the father’s parenting time is on weekends, and he enjoys less parenting time with the children than the mother, any division of weekend parenting time results in a reduction in his time, and he fights hard to keep it. In at least one circumstance that was described to the court, the holiday weekend fell on the mother’s regularly scheduled weekend, resulting in the children not having a single uninterrupted weekend with the mother in a span of two months. Given the parties’ respective work schedules (i.e. typical Monday to Friday work weeks) there is no real reason for this added source of conflict.

[191] I am satisfied that the modified views and preferences of the children, in combination with the logistical problems that the regular parenting schedule has caused, primarily in relation to the exacerbation of conflict between the parties, has resulted in a material change in circumstances which calls for an adjustment to the regular parenting schedule.

[192] However, the regular parenting schedule sought by the mother, that is – alternating weekends and two afterschool visits between the children and the Respondent father each week (not overnight) is simply not reflective of the best interests of N.G. and V.G.: it is not consistent with their views and preferences, it is not responsive to the changes that require redress, it is an unjustified departure (i.e. reduction) from the quality parenting from which the children have benefitted for many years, and is not consistent with the principle that V.G. and N.G. should have as much contact with both of their parents as is consistent with their best interests. I am not satisfied that there should be any significant decrease in the father’s parenting time. There will however be a reallocation of parenting time to better reflect the current best interests of N.G. and V.G.. I conclude that the revised parenting schedule should, generally-speaking, combine the father’s mid-week parenting time into an additional mid-week overnight visit in his home with his existing regular overnight, and that the children should enjoy weekend down time in both of their homes on an alternating weekend basis. The parenting schedule does not require a complete overhaul, but rather a fine-tuning of the schedule which serves to:

a. Reduce the number of transitions between the parties’ homes by eliminating the father’s mid-week after-school visits. This change is intended to reduce the potential for further conflict at parenting exchanges, thereby relieving additional sources of stress to N.G. and V.G.;

b. Establish a more consistent and predictable weekly routine by having the children spend overnights in the Applicant mother’s home on Sunday, Monday, and Tuesday evenings, and spend overnights in the Respondent father’s home on Wednesday and Thursday evenings. This will allow the children to more easily schedule afterschool activities, playdates, etc. by requesting permission from the responsible parent; and

c. More equally distribute the children’s relaxing down time between the parties’ homes.

[193] I am satisfied that paragraph 2 of the Final Order of the Honourable Mme. Justice W. MacPherson dated December 10, 2019 must be varied as follows:

1. The Respondent father will have regular parenting time with the children, on an alternating weekly basis, as follows:

i. Week One: Wednesday at 4:30 p.m. until Friday at 7:30 a.m.;

ii. Week Two: Wednesday at 4:30 p.m. until Sunday at 7:30 p.m.

2. The children will be in the regular care of the Applicant mother at all other times.

C. ISSUE #3: Financial Issues

Child Support

[194] As a result of the court’s decision in relation to the regular and holiday parenting schedules, it is clear that s. 9 of the Federal Child Support Guidelines continues to apply. The parties agree that in this scenario the Respondent will pay an agreed-upon quantum of child support of $500.00 per month, as per the jointly prepared draft terms. They have also agreed on each party’s respective proportionate contribution to s. 7 expenses. I find their agreement to be consistent with the objectives of child support under the Guidelines, and to constitute reasonable financial arrangements for the support of N.G. and V.G..

RESP and Children’s Bank Accounts

[195] The children’s RESP and bank accounts were not equalized. The parties agree that such funds do not form part of the parties’ respective net family property and were properly excluded from equalization calculations.

[196] With respect to the RESP funds, the parties agree that the money belongs to the children and that it is intended to be applied towards the cost of the children’s future post-secondary education. With respect to the children’s bank accounts, the parties agree that the money belongs to the children.

[197] On the date of separation, the accounts had the following balances:

i. N.G. bank account: $8,105.19

ii. V.G. bank account: $7,622.64

iii. RESP account: $50,063.87.

[198] All of these funds were accumulated during the parties’ marriage, as the accounts were not opened prior to the births of the children.

[199] Where the dispute arises is:

a. The Applicant mother believes that because she alone made the contributions to these accounts during the parties’ marriage, she should have sole discretion over how the funds are used, and she alone should receive credit for the amounts accumulated over the course of the marriage in their future application;

b. The Respondent father takes the position that because the funds were accumulated during the marriage, they should be allocated equally between the parties for application towards the children’s future use. Further, because the mother utilized the funds held in the children’s bank accounts for her own benefit post-separation (although later reimbursed and surpassed), the father asks the court to order the division of the accounts such that the Respondent will hold ½ of the value of the accounts in trust for the children in new accounts opened for their benefit under his management.

[200] Neither party provided any legal authority in support of their respective position.

[201] One of the overarching objectives of the Family Law Act is to provide for the equitable resolution of economic disputes arising from the breakdown of marriage. The Family Law Act highlights the presumed equal contribution of spouses to their economic partnership, the presumed equal allocation and distribution of the product of their partnership, and the joint financial responsibility of parents for their children. Within this context, it is impossible to accept the Applicant mother’s position that the father’s role as an equal partner in the marriage should be disregarded with respect to the children’s funds simply because he did not open and make the direct contributions to these children’s accounts. It is obvious that the Respondent father was making financial contribution to other family obligations throughout the marriage. The spirit of the Family Law Act requires this court to presume that the father contributed equally, although not directly, to the account balances which existed on the date of separation.

[202] On the other hand, the mother has demonstrated commitment to saving for the children’s futures. She opened the accounts, regularly contributes to the accounts, and has managed the accounts since their inception. The mother alone made any contributions to the account which followed the parties’ separation, and there is no presumption (nor request) that the father should share in or be credited with any portion of these contributions. The Applicant mother has ably managed the accounts for the benefit of the children. Although she did borrow from the bank accounts post-separation, she reimbursed and thereafter has continued to increase the value of the accounts. In my view, there is no basis to divide the accounts and disturb the Applicant mother’s management of the accounts for the benefit of the children.

[203] This is an appropriate case in which to grant declaratory relief. It is necessary to recognize the contributory role that the Respondent father played during the marriage in the accumulation of the children’s RESP and bank account holdings. To be clear, this does not change that the funds ‘belong’ to the children. Rather, it signifies that the father has an interest in how the funds will be allocated and applied for the children’s benefit in future.

[204] With respect to the RESP account, the court cannot predetermine how the funds should be applied towards the children’s post-secondary expenses. This is an issue that must be left to future determination. However, for purposes of these proceedings, it is appropriate to acknowledge that each party notionally contributed the equal sum of $25,031.94 to the RESP account during the marriage. The father should receive a credit for this sum, plus any applicable interest which may be applied, when the distribution of the funds towards the children’s educational expenses is ultimately considered.

[205] With respect to the children’s bank accounts, there is no requirement that the funds must be held for some specific future purpose. The Applicant mother states that it is her intention to transfer the monies to the children when they reach age of majority. Again, it is appropriate to acknowledge that the father notionally contributed ½ of the account holdings that existed as at the date of separation. In my view, the most fair and equitable manner of dealing with these bank accounts is to allow the mother continued management of the funds, but to require that the account balances not fall below the date of separation values without the consent of both parties. By this method, the funds are preserved for the children, but the parties could agree to utilize the account holdings for the benefit of the children while they remain minors if special opportunities arise for the children that might otherwise be outside of the budget of the parties.

PART VI: ORDER

[206] On the basis of the above, there shall be an Order to go as follows:

Divorce

1. The issue of a Divorce is severed from the corollary relief and either party may proceed on an uncontested basis.

Parenting

2. The Applicant mother’s claim for sole decision-making authority for the children of the marriage, namely, N.A.G. and V.J.G. is dismissed.

3. Paragraph 2 of the Final Order of the Honourable Mme. Justice W. MacPherson dated December 10, 2019 shall be varied such that:

a. The Respondent father will have regular parenting time with the children, on an alternating weekly basis, as follows:

i. Week One: Wednesday at 4:30 p.m. until Friday at 7:30 a.m.;

ii. Week Two: Wednesday at 4:30 p.m. until Sunday at 7:30 p.m.

b. The children will be in the regular care of the Applicant mother at all other times.

4. The following holiday parenting schedule will override the regular parenting schedule:

Family Day, Easter, Victoria Day, and Thanksgiving

a. The Family Day, Easter, Victoria Day, and Thanksgiving weekends shall follow the regular parenting schedule, save and except that the children will remain in the care of the Respondent father until Monday evening at 7:30 p.m. if these long weekends fall on his regular parenting time.

Canada Day, August Civic Holiday and Labour Day

b. Canada Day, the August Civic Holiday and Labour Day will follow the regular parenting schedule (without extension of an additional day of parenting time).

March Break

c. The children’s March Break from school will follow the regular parenting schedule unless one of the parties wishes to travel with the children over the spring break in accordance with the following:

i. The Applicant mother may travel with the children over March Break in even-numbered years;

ii. The Respondent father may travel with the children over March Break in odd-numbered years;

iii. Unless otherwise agreed between the parties, the travelling party’s parenting time shall include seven days of parenting time, commencing or ending on Sunday evening at 7:30 p.m., and shall not include the other parent’s regular weekend parenting time;

iv. Full particulars of any intention to travel with the children over March Break shall be provided to the other parent, in writing, a minimum of 30 days prior to travel.

Mother’s Day/Father’s Day

d. The children will always be in the care of the Applicant mother on Mother’s Day from 10:00 a.m. until 7:30 p.m., and in the care of the Respondent father on Father’s Day from 10:00 a.m. until 7:30 p.m.

Summer Holidays

e. The children shall reside equally with both parents, on a week-about basis, during the children’s summer holidays from school. Exchanges shall take place each Sunday evening at 7:30 p.m. in accordance with the regular weekend parenting schedule.

Halloween and Birthdays

f. Halloween and children’s/family members’ birthdays will follow the regular parenting schedule.

Christmas Break

g. The parents shall share equal parenting time with the children over the children’s Christmas holidays from school as follows:

i. In even-numbered years the children shall be in the care of the Respondent father from 12:00 noon on December 23 until 12:00 noon on December 25, and in the care of the Applicant mother from 12:00 noon on December 25 until 12:00 noon on December 27;

ii. In odd-numbered years the children shall be in the care of the Applicant mother from 12:00 noon on December 23 until 12:00 noon on December 25, and in the care of the Respondent father from 12:00 noon on December 25 until 12:00 noon on December 27;

iii. The balance of the days (from 4:30 p.m. on the children’s last day of school in December until 7:30 p.m. on the last day of holidays before return to school in January) shall be divided equally such that:

1. In even-numbered years the children shall be in the care of the Applicant mother for the first half of the holidays (excluding December 23-December 27 as per above), and in the care of the Respondent for the second half of the holidays;

2. In odd-numbered years the children shall be in the care of the Respondent father for the first half of the holidays (excluding December 23-December 27 as per above), and in the care of the Applicant mother for the second half of the holidays;

3. Unless otherwise agreed, the mid-point parenting exchange shall take place at 4:30 p.m.;

4. In the event of an unequal number of holiday overnights, the party who does not have the children in his or her care for Christmas Eve/Christmas morning shall receive the extra overnight.

5. In the event that either party is unable to spend a scheduled overnight with the children, he or she shall provide the other parent with first opportunity to care for the children before making alternate arrangements for their care.

6. The party with whom the children are scheduled to be according to the regular parenting schedule shall make the day-to-day decisions for the children.

7. If a child needs emergency medical care while with one party, that party shall promptly notify the other party of the emergency.

8. The parties shall exchange information and communicate about the children using the Our Family Wizard (“OFW”) application:

a. All communications shall be private (i.e. not shared with any other person including the children), respectful, and limited to child-related issues;

b. Requests for changes to the regular or holiday parenting schedule shall be made in writing through the OFW application, and never in the presence of the children; and

c. The subscription and maintenance costs of OFW shall be shared as a s. 7 expense.

9. Both parties may make inquiries and be given information by the children’s teachers, school officials, doctors, dentists, health care providers, daycare providers, camp counsellors, coaches and others involved in the care of the children.

10. The parties may telephone and/or communicate by text, email or social media with the children on daily basis. The children may telephone or otherwise communicate with the parties whenever they wish.

11. Neither party shall:

a. disparage or speak ill of the other parent, or permit related third parties to disparage or speak ill of the other parent, in the presence of the children;

b. videotape, or permit other related third persons to videotape the other parent without the express consent of the other parent;

c. discuss modifications to the parenting schedule with the children in advance of express written agreement with the other parent;

d. discuss financial arrangements between the parties in the presence of the children;

e. commit to the children’s enrollment in extracurricular activities in advance of express written agreement with the other parent;

f. discuss the history of this court proceeding with the children;

g. request the children to act as messengers of contentious information, or couriers of child support payments, between their respective households; and

h. engage in contentious discussions with the other parent, intentionally restrict the movement of the other party, nor raise their voice at the other parent in the presence of the children.

12. With respect to the children’s extracurricular activities:

a. The parties will consult with one another before committing to enrolment of the children in extracurricular activities which impact upon the other parent’s parenting time;

b. In the event of a disagreement over enrollment in extracurricular activities:

i. The Applicant mother will have decision-making authority over fall/winter activities; and

ii. The Respondent will have decision-making authority over spring/summer activities;

iii. The parent with decision-making authority over the events and activities will consult with the children as to their views and preferences.

c. Unless otherwise agreed between the parties, the children will be registered in Hamilton or Stoney Creek extracurricular organizations.

d. Unless otherwise agreed between the parties, the children may be enrolled in a maximum of one rep or high level extracurricular activity or two house league or recreational activities at any given time.

e. Neither party shall require the permission of the other parent to enroll the children in activities or events which solely fall upon their own parenting time, unless they are seeking financial contribution from the other parent.

f. Both parties may attend all extracurricular activities and events pertaining to the children regardless of the parenting schedule.

g. Unless otherwise agreed, the party upon whose parenting time the event or activity falls shall be responsible transporting the child to and from, and for the care of the child during the event or activity.

h. Unless otherwise agreed between the parties, the children’s events and activities shall be uploaded to the shared calendar in OFW:

i. The Applicant mother will be responsible for inputting all data relating to fall/winter extracurricular activities and events; and

ii. The Respondent father will be responsible for inputting all data relating to spring/summer extracurricular activities and events.

13. With respect to education:

a. Neither party will change the school of the children without the express written consent of the other parent or order of the court;

b. Both parties may attend teacher interviews, together or separately in their discretion;

c. Both parties may obtain communications from the school (e.g. school notices, calendars, report cards, etc.) directly from the school; and

d. Both parties may attend at school events or activities for the children regardless of the parenting schedule.

14. With respect to parenting exchanges:

a. During the regular parenting schedule:

i. Weekday exchanges (including Fridays) shall take place at the residence of the Applicant mother, and the Respondent father shall provide transportation for the children;

ii. Weekend exchanges (i.e. Sunday evenings) shall take place at the residence of the Respondent father, and the Applicant mother shall provide transportation for the children;

b. During the holiday parenting schedule:

i. The party whose parenting time is commencing shall pick up the children from the other party’s residence;

c. Unless specifically agreed or arranged between the parties in advance, one party shall remain in his or her vehicle, and the other party shall remain on his or her property during parenting exchanges.

15. The parties shall only transport the children in vehicles with safe and legal seating for the children.

16. With respect to the children’s official documents:

a. The Respondent father shall be responsible for obtaining, maintaining and renewing the children’s passports and shall be custodian of the passports. The Respondent father shall provide the children’s passports to the Applicant mother when requested for travel. The Applicant mother will forthwith return the passports to the father upon her return.

b. The Applicant mother shall be responsible for obtaining, maintaining and renewing all other official documents relating to the children (e.g. health cards, birth certificates, SIN cards, etc.) and shall be custodian of the documents.

c. The parties shall forthwith provide copies of the official documents in their respective possession to the other upon request.

17. The parties shall use best efforts to provide all particulars of any planned international travel with the children (e.g. dates, flights, accommodations, contact information, etc.) to the parent a minimum of thirty (30) days prior to the scheduled travel. The non-travelling parent shall execute requested travel consents/authorizations presented by the travelling party, within seven (7) days of request.

18. The names of the children shall not be changed without the express written consent of the other party.

Financial Issues

19. Commencing April 1, 2022, the Respondent father shall pay Table child support to the Applicant mother, fixed in the sum of $500.00 per month, in consideration of the parties’ shared parenting arrangement, s. 9 of the Federal Child Support Guidelines, and the parties’ respective incomes of $73,286.00 (Applicant), and $81,256.00 (Respondent).

20. Commencing April 1, 2022, the parties shall each contribute their proportionate share toward the children’s special or extraordinary expenses, in accordance with s. 7 of the Federal Child Support Guidelines, as follows:

a. The Applicant’s proportionate share is 47%;

b. The Respondent’s proportionate share is 53%;

c. Sports registration fees and equipment expenses relating thereto shall be deemed to be s. 7 expenses to which the parties must contribute their proportionate share;

d. Unless otherwise agreed between the parties, travel expenses and hotel fees pertaining to the children’s sporting events shall be paid by the parent upon whose parenting time the event or activity takes place; and

e. Reimbursement of s. 7 expenses shall be paid directly between the parties a maximum of fifteen (15) days following proof of payment of the expense.

21. On or before May 1^st^ of each year, commencing on May 1, 2023, the parties will exchange their respective Income Tax Returns as submitted to Canada Revenue Agency, by uploading the documents to OFW. They shall thereafter exchange their respective Notices of Assessment forthwith upon receipt.

22. With respect to the Family Registered Education Savings Plan (**305):

a. The Applicant mother shall continue to manage the RESP account;

b. The Applicant mother shall not withdraw any funds from the RESP account without the written consent of the Respondent father;

c. On May 1, 2023 and annually thereafter on May 1^st^, the Applicant mother shall provide the Respondent father with a current copy of RESP investment summary statement; and

d. It is declared that the Respondent father contributed the sum of $25,031.94 to the family RESP account balance as at the date of separation. He shall be credited with this contribution, without prejudice to claims relating to interest accrual, when the funds are ultimately applied towards the children’s post-secondary education.

23. With respect to the children’s bank accounts (N.G. - **581 and V.G. - **982):

a. The Applicant mother shall continue to manage the children’s bank accounts;

b. Unless specifically agreed between the parties in advance and in writing, the Applicant mother shall not permit the balances of the children’s bank accounts to fall below the following:

i. N.G.: $8,105.19;

ii. V.G.: $7,622.64;

c. On May 1, 2023 and annually thereafter on May 1^st^, the Applicant mother shall provide the Respondent father with a current account statement for each account; and

d. It is declared that the Respondent father contributed the sum of $4,052.60 to N.G.’s bank account, and $3,811.32 to V.G.’s bank account.

24. Unless the support order is withdrawn from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the support order shall be paid to the Director, who shall pay them to the person to whom they are owed.

25. If costs are an issue:

a. The party seeking costs shall serve and file Cost Submissions, not exceeding five pages in length, exclusive of a Bill of Costs and applicable caselaw, by April 15, 2022;

b. The responding party shall serve and file Responding Cost Submissions, not exceeding five pages in length, exclusive of bill of costs and applicable caselaw, by May 6, 2022;

c. Reply Submissions, if any, not exceeding two pages in length, shall be served and filed by May 16, 2022;

d. If Cost Submissions are not served and filed by April 15, 2022, there shall be no costs payable arising from this action.

The Honourable Madam Justice L. Bale

Date: April 13, 2022

COURT FILE NO.: 641-18

DATE: 2022-04-13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

R. G.

Applicant

– and –

J.G.

Respondent

REASONS FOR JUDGMENT

Bale J.

Released: April 13, 2022

[^1]: The parties each subsequently filed amended pleadings. [^2]: As noted by Kurz J. in Phillips v. Phillips, the heading of the relevant section “maximum contact” was changed to “parenting time consistent with best interests of child” in the recent amendments to the Divorce Act, however the operative terms in the section remain the same: 2021 ONSC 2480, [2021] O.J. No. 2027. [^3]: Note: The Ladisa decision was released on the same day as Kaplanis.