Court File and Parties

Court File No.: FS-15-20271-0001 Date: 2022-05-03 Ontario Superior Court of Justice

Between: Douglas Edward (Ted) Cuthbert, Applicant And: Kristine Nolis, Respondent

Counsel: Ted Cuthbert, self-represented Kristine Nolis, self-represented

Heard: October 12, 13, 14, 15, 18, 19, 21, 2021

Pinto J.

Reasons for Decision

A. Overview

[1] This 7-day trial concerned a dispute between the parties about parenting time, decision-making, and telephone access.

[2] The applicant, Ted Cuthbert, 51, and the respondent, Kristine Nolis, 49, have two children: G, 11, born March 11, 2011; and K, 9, born February 3, 2013. At the time of trial, Mr. Cuthbert was employed on contract as a business analyst. Ms. Nolis was employed as a senior policy analyst for the Workplace Safety and Insurance Board (WSIB).

[3] The parties began cohabiting on November 27, 2010 and separated on March 27, 2014. They were never married.

[4] Since 2015, the parenting (formerly called access) arrangement has essentially remained the same. Mr. Cuthbert has parenting time with the children from Wednesday after school until 8:00 p.m., and on alternating weekends from Friday after school, until Sunday at 5:00 p.m.

[5] Mr. Cuthbert has never accepted this parenting schedule as fair. He filed an application in July 2015. He filed three motions seeking increased parenting time, all of which were unsuccessful. The parties had a 10-day trial in September 2017 that resulted in Reasons for Decision by Justice Goldstein dated August 1, 2018 (Cuthbert v. Nolis, 2018 ONSC 4643) and an order dated, June 24, 2019.

[6] Justice Goldstein determined that custody (now called decision-making) should be awarded jointly to the parents, but that Mr. Cuthbert's access (now called parenting time) should stay the same. However, Justice Goldstein ordered that Mr. Cuthbert should have the opportunity to change access to 50/50 as the children became older, that he could apply to increase access one year after the date of the order, and that the parties should attempt to work out a revised schedule. The parties were never able to agree on a revised parenting schedule, hence the second trial.

[7] The issues in the present trial are: (a) Parenting time; (b) Decision-making; and (c) Telephone access.

[8] For the reasons that follow, I find that: (a) Mr. Cuthbert's request for a step-up plan to increase to an equal parenting arrangement is granted; (b) Decision-making should remain as joint; and (c) Telephone access should be as per the recommendation of the Office of the Children’s Lawyer (OCL).

B. Procedural History

[9] Nine months after the release of Justice Goldstein's Reasons for Decision, the parties met with him on May 1, 2019 to settle certain financial issues and obtain clarity with respect to his decision. Paragraph 3 of Justice Goldstein’s order issued on June 24, 2019 states, "The access arrangement shall remain unchanged until August 1st 2019, or until such time that the parties agree on a new access arrangement, or a further order of this court." The parties could not agree on a revised schedule. Mr. Cuthbert then brought a motion on August 6, 2019 seeking to increase parenting time on a step-up basis to an equal 2/2/5/5 parenting schedule. On August 8, 2019, Ms. Nolis requested an adjournment of the motion and that the motion be treated as a Motion to Change a final order under r. 15 of the Family Law Rules, O. Reg. 114/99.

[10] On August 15, 2019, Justice Myers agreed to defer the hearing of Mr. Cuthbert's motion. He ruled that the motion should be considered a Motion to Change a final order but that "Justice Goldstein made it clear that the process could occur without a material change."

[11] In a November 22, 2019 Case Conference endorsement, Justice Stevenson requested the involvement of the OCL by way of an investigation under s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[12] In an August 5, 2020 Case Conference endorsement, Justice Shore stated that there were a number of issues that were not addressed in Justice Goldstein's Order, such as telephone calls and holidays, that the parties should address. She also referred to the "procedural matter of amending pleadings." Despite this reference, the pleadings were only amended at the trial before me.

[13] On September 8, 2020, the OCL's s. 112 Report by clinician Shari Burrows was filed with the court. The OCL recommended that the existing parenting schedule remain the same. The OCL Report did not deal with decision-making. Regarding telephone access, the OCL recommended that telephone calls should be made daily with the other parent on days that he/she has not seen the children, and calls should be limited to ten minutes with each child at a specific time.

[14] On March 5, 2021, in a combined Settlement Conference/Trial Management Conference endorsement, Justice Shore added decision-making as a triable issue and scheduled the trial to commence on September 20, 2021. Justice Shore declined to have the OCL update its report for trial as this would delay resolution of the case. Following an adjournment request by Ms. Nolis, the trial commenced on October 12, 2021.

C. The Trial

[15] Mr. Cuthbert's evidence in chief was provided by way of his affidavits sworn September 10, 2021 and August 6, 2019. Ms. Nolis' evidence in chief was provided by way of her affidavits sworn September 26, 2021 and August 8, 2019. Each party cross-examined the other.

[16] Mr. Cuthbert called the following persons as witnesses:

• Carolyn Joan Cuthbert, his mother
• Thomas (Tom) Andrew Cuthbert, his brother

[17] Ms. Nolis called the following persons as witnesses:

• George Nolis, her father
• Kaye Nolis, her mother
• Elaine Christens, her neighbour
• Xiao Juan (Jan) Kwong, the mother of K's best friend
• Linda Gama, G's Grade 4 and home room teacher for the school year 2020-21
• Andrew Claire, G's Grade 4 math and literacy teacher for the school year 2020-21
• Julia Vacchino, G's Grade 2 teacher for the school year 2018-19
• Dr. Caterina Mastrogiacomo, the children's family physician until January 31, 2021
• Kalifa Buchanan, K's Grade 2 teacher for the school year 2020-21
• Monika Leite, the parent of a child in the same dance class as K
• Jacqueline Li-Owens, the mother of G's best friend

[18] The evidence in chief of all the witnesses except Andrew Claire, Dr. Mastrogiacomo, and Kalifa Buchanan was provided by way of affidavit. Mr. Cuthbert cross-examined all of Ms. Nolis' witnesses except Ms. Leite and Ms. Li-Owens, so their evidence went in uncontested.

D. Mr. Cuthbert's Position

[19] Following Justice Goldstein's order, Mr. Cuthbert filed a Notice of Motion requesting increased parenting time. That Notice of Motion referred to specific dates which, by the time of this trial, had passed. Justice Myers converted the regular motion into a Motion to Change, and Justice Shore referenced the need to amend the pleadings. However, since that did not happen before trial, I permitted Mr. Cuthbert to amend the relief he sought by providing an updated pleadings/draft order. In broad terms, Mr. Cuthbert requests a step-up parenting schedule as follows:

During the regular school year, the children would be in Mr. Cuthbert's care:

• From Wednesday after school to drop-off at school on Thursday morning (this would represent an increase of a mid-week overnight).
• Every second weekend from Friday pick-up at school until Sunday 5:00 p.m. drop off (this is the current arrangement).
• Six months later, the "every second weekend access" would be extended by an overnight with the children being dropped off on Monday morning at school.
• Six months after the extension of weekend access, the schedule would change so that the children are residing with each parent on an equal basis following a "2/2/5/5" schedule.

During the months of July and August, the children would reside with each parent on a week about basis.

[20] Mr. Cuthbert submits that: (a) Based on Justice Goldstein's decision, he does not need to demonstrate a material change in circumstances, and it is in the best interests of the children that their parenting time with him be expanded on a step-up basis to a 50/50 equal parenting schedule. (b) The only reason Justice Goldstein cited in 2018 for not increasing Mr. Cuthbert’s parenting time was concern for G's anxiety. While G still has anxious moments, he is doing well overall and there is no valid reason now to deny greater parenting time to Mr. Cuthbert. (c) No change is warranted with respect to joint decision-making, and Ms. Nolis has not demonstrated that a material change in circumstance has occurred, or that sole decision-making by her would be in the children's best interests. (d) No order is needed with respect to telephone access since the parties have reached an acceptable arrangement. However, if the court is going to order telephone access, it does not make sense for the parent who starts out with the children in the morning, to call the children again in the evening, during the other parent's time.

[21] Mr. Cuthbert's perspective is that he has been trying since the parties' separation in March 2014 to increase his parenting time. Following the trial in 2017, and as per Justice Goldstein's order in 2018, he was entitled to seek increased parenting time with the children after August 1, 2019. That is precisely what he did. However, Ms. Nolis has steadfastly rejected all his offers and will not even agree to "the simple granting of the Wednesday overnight access." This creates problems for the children, such as having to interrupt whatever they are doing, as they must be returned to Ms. Nolis' residence. The children never get truly settled in for the evening, and recently the children have claimed that they would like to wait to return to Ms. Nolis' residence to complete their homework.

[22] Mr. Cuthbert lives only a few minutes away from Ms. Nolis' residence and 150 metres from G's school. Mr. Cuthbert suggests that instead of turning to him, as the children's father, for assistance, Ms. Nolis places the children in the care of her parents, friends, or other family members in order to prevent the children from spending more time with him.

[23] Mr. Cuthbert claims that Ms. Nolis has been using the children's views and preferences, which are supposedly against spending more time with their father, as her main argument. He says that in reality, the children’s views and preferences cannot be reasonably ascertained since Ms. Nolis has strongly influenced them and told them what to say. Mr. Cuthbert asserts that while the children are sometimes reluctant to go with him, any negativity soon dissipates when the children are in his care. He suggests that more quality time with their father and less complicated transfers are what the children need.

[24] Mr. Cuthbert argues that the current schedule involves him going 7 days every 2 weeks without seeing the children, and 12 days without an overnight together. He claims that this schedule makes it very difficult for the children to have a meaningful relationship with him. He claims that his current job offers the flexibility that would allow him to expand his parenting duties.

[25] With respect to decision-making, he argues that, while there have been difficulties, the parties have been able to jointly make decisions regarding the children's health, education, and programs.

[26] Mr. Cuthbert believes that both he and Ms. Nolis are equally capable, willing, and available to parent the children and now that the children, aged 10 and 8 at the time of trial, are older, it is in the children's best interests to spend increased time with their father. He notes that while Ms. Nolis does "a great job as a parent and I'm thankful my children have her as a mother," the parties have different parenting styles. He states that Ms. Nolis chooses to keep the children dependent on her and cites various examples: (a) “G is now 10 and a half, yet cannot tie his own shoes. While I have taught him twice, he gets frustrated when I ask him to do it and tells me his mother always tied his shoes for him it for him [sic].” (b) “Up until last year, G was asking me to wipe his bum for him, claiming his mother did it for him.” (c) “G still sucks his thumb, profusely at times. I have tried to help him break the habit, following the advice of doctors, and have pleaded with Kristine that we work together to help him with this, but she won't.” (d) “G still carries his ‘NouNou’ (a small baby blanket with a bear head on it that he was given as an infant) almost everywhere he goes. I have pleaded with Kristine for years that we start to restrict it to his room, but she still lets him take it wherever he goes.”

[27] Mr. Cuthbert also claims that when he helps the children take risks and push their boundaries, he is criticized by Ms. Nolis.

[28] With respect to the OCL's recommendation to maintain the status quo parenting arrangement, Mr. Cuthbert submits that the clinician did not provide a sufficient rationale. Concerning the references to his mental health issues in the OCL report, he asserts that there is nothing in his medical records or history that should keep him from spending greater time with his children.

[29] Mr. Cuthbert acknowledges that the children call him "mean Daddy" when he does not do what they want, such as buying items when out shopping. He does not believe that doing what the children want is necessarily in their best interests.

[30] Mr. Cuthbert concedes that he has made some errors in parenting, but that Ms. Nolis has blown certain incidents out of proportion. The incidents are discussed below.

E. Ms. Nolis' Position

[31] Ms. Nolis adamantly opposes Mr. Cuthbert's parenting proposal. She wants to maintain the status quo for the school year. For July and August, she proposes that, outside of the regular parenting schedule, the children have two weeks of non-consecutive (i.e., two periods of one week each) parenting unless the parties agree in advance to accommodate a special circumstance.

[32] Ms. Nolis wants to end joint decision-making. While the parties should consult with each other in writing and seek professional advice, she submits that if they cannot agree, she should have final decision-making authority.

[33] With respect to telephone access, Ms. Nolis seeks an order that the children be entitled to communicate with their parents at any time they wish via telephone or any other form of electronic communication. Also, each parent shall be entitled to call the children, once a day, at a predictable time in the evening, for no more than ten minutes with each child, while the children are in the other parent's care. The parent caring for the children will ensure that a private conversation can take place and not interfere in that communication.

[34] Ms. Nolis submits that: (a) Since Mr. Cuthbert brought a Motion to Change a final order with respect to parenting, he must show that a material change in circumstances has occurred. Yet, at trial he acknowledged that nothing has particularly changed in the last three years, therefore his motion should be dismissed. Ms. Nolis submits that the mere passage of time or the children getting older does not constitute a material change in circumstances. (b) In any event, the evidence demonstrates that the children's needs, including their education, activities, and social circles with their friends are better fostered through Ms. Nolis' care and the present parenting arrangement. (c) On decision-making, she concedes that she would have to show a material change in circumstances but suggests that the change is that Mr. Cuthbert has used joint decision-making to obstruct progress. She cites examples such as Mr. Cuthbert blocking the court-ordered name change of the children's last name to Cuthbert-Nolis, his refusal to allow the children's family physician Dr. Mastrogiacomo to proceed with the children's physical exam, and his delay over the children's registration in French Immersion. (d) With respect to her motion that an order be in place for daily telephone calls, the request is reasonable as this comforts the children. Without an order, the calls are unpredictable. In any event, G has been given a phone and the children should be entitled to communicate with their parents at any time they wish via telephone or electronically.

[35] Ms. Nolis claims that any increase in Mr. Cuthbert's parenting time would not be welcomed by the children. She is concerned that a mid-week overnight at Mr. Cuthbert's residence would wreak havoc with the children's schedule.

[36] Ms. Nolis suggests that the children already struggle when they are in Mr. Cuthbert's care. They are bored, unhappy, and cannot wait to return "home" to her. She claims that, instead of focusing on the children's preferences, Mr. Cuthbert is fixated on his own favourite activities, such as skiing or going to his family cottage. Instead of spending his two weeks of uninterrupted time with the children in the summer of 2021, he enrolled the children for one week in a summer camp that they disliked.

[37] Ms. Nolis is extremely concerned about G, who she describes as having anxiety. She suggests that G needs a lot of assistance including with organization and homework, which does not get done in Mr. Cuthbert's care. If greater parenting time is given to Mr. Cuthbert, the burden will fall on her shoulders. G is in the process of being referred for mental health counselling, and Ms. Nolis is concerned that he will not fare well with any change as the emotional bond with Mr. Cuthbert is not present.

[38] Ms. Nolis emphasizes that the OCL, an independent third party, has recommended maintaining the status quo parenting schedule. The OCL report also highlights concerns that Mr. Cuthbert has been struggling with mental health issues for an extended period of time, perhaps as far back as childhood.

[39] Ms. Nolis also points to a series of incidents in the last few years where Mr. Cuthbert has not acted in the best interests of the children. She states that she cannot even contemplate the "aggressive" increase in parenting time being proposed by Mr. Cuthbert and that there is no justification for it. She claims that it is not that she does not want Mr. Cuthbert to have time with the children, but now is not the best time for a change.

F. Discussion of Issues

i. G's Anxiety

[40] As Justice Goldstein's 2018 parenting time decision turned on his finding that it would cause too much anxiety to G to immediately change the parenting schedule, I consider it important to examine the evidence on that issue at trial.

[41] The parties agree that G has not been formally diagnosed with anxiety (a psychiatric term), and that he does not take any medication for anxiety. The parents and I used the term "anxiety" in the everyday sense, not to impute a diagnosis to G that only a psychiatrist can make.

[42] Mr. Cuthbert testified that G has anxious moments, but he does not believe that G's issues are so great that G cannot spend more time with him.

Counselling

[43] Mr. Cuthbert testified that G attended counselling with Dr. Noble, a psychologist in 2019/20. Dr. Noble was not called as a witness at trial although a letter that she provided dated February 25, 2020 was produced by Mr. Cuthbert at trial. In the letter, Dr. Noble confirmed that G had been using the therapy sessions well and had done some good work on learning to notice when he was anxious. There was some confusion whether G had attended four or six therapy sessions with Dr. Noble, but it was at least four.

[44] In G's last two sessions, he did not tell Dr. Noble of any distress he was feeling and did not report being tense or unable to relax with school or friends-related activities. Dr. Noble was not prepared to continue sessions with G as she had made it clear that she would not be working with lawyers or courts and, by this time, she had been contacted by the OCL regarding its involvement.

[45] Mr. Cuthbert deposed that Dr. Noble did not think that G had a serious anxiety problem, she would only need to see him 2-3 more times, and that G did not require long term counselling or more serious treatment for his anxiety.

The OCL Report

[46] The OCL Report contained information about Dr. Noble's views based on an interview conducted on February 21, 2020. Dr. Noble met with the parties for an intake on September 24, 2019 to address G's anxiety. Ms. Nolis had reported to Dr. Noble that G demonstrated really big emotions that did not match the situation and he was sensitive to any change. Dr. Noble stated that G sucks on what looks like a rag or security blanket, or he sucks his thumb. Dr. Noble suggested to the parents that G restrict this to bedtime. Dr. Noble was concerned that if G uses the blanket in public, it would increase G's anxiety because other children would react to it.

[47] Dr. Noble was also concerned that Ms. Nolis may have told G what to say in therapy. G came in a few times and said that his mother told him what to tell her that day. She was also concerned when G explained how his father took his phone and did not let him talk to his mother.

[48] The OCL Report also referenced Ms. Nolis' views regarding G's situation. Ms. Nolis described G as doing well in school but as a child who needs a lot of support because he had difficulty motivating himself. Ms. Nolis stated that she helps G a lot with his schoolwork. Ms. Nolis said that G has anxiety, gets overwhelmed, and cries. He is very attached to his "NouNou," a small piece of blanket with a stuffed animal head on it.

[49] Ms. Burrows, the OCL clinician, reported on her observations of the interactions between each of the parties and the children. During the visit with Mr. Cuthbert, Ms. Burrows reported that the children seemed relaxed and comfortable in their father's care. G was not sucking his thumb or holding a cloth during the observation.

[50] During her observation visit with Ms. Nolis, Ms. Burrows noted that the children were relaxed and comfortable. They seemed to enjoy playing games with their mother. She noted that "G sucked his thumb and held a cloth during the observation visit."

[51] The OCL Report noted that "G presents as an anxious, sensitive child. Although he has not been formally diagnosed, both of his parents notice that he can become very anxious at times and in the past, Mr. Cuthbert has questioned if he had Attention Deficit Disorder." The Report also recommended that G be involved in assessment and therapy through a mental health clinic to address his symptoms of mental health issues.

[52] Ms. Nolis stated that she believes G has anxiety and that it is more or less the same as it was at the time of the last trial. She stated that certain things will trigger G and his reactions have not changed.

[53] In response to Mr. Cuthbert's suggestion in cross-examination that G's anxiety did not worsen when he changed schools three times, Ms. Nolis responded that it was because he had stayed with the same children and only the physical location had changed. When it was pointed out that G's hockey schedule changes without it presenting a problem, Ms. Nolis answered that it was the consistency of G's home environment that was important. She conceded that she has never made a proposal to increase Mr. Cuthbert's parenting time.

[54] I note that in Ms. Nolis' affidavit she states, "The children are good natured, do well in school, get along well with others, are reliable hard-working teammates on sports team, and are happy." However, Ms. Nolis places this sentence under the section "Children in a Stable Home and Thriving," meaning her home.

School

[55] Linda Gama, G's Grade 4 elementary school teacher, testified at trial. G spent about 40% of his school time with her. She taught him French, Science, Social Studies, and Visual Arts. She was his home room teacher. She described G as an intelligent boy who has a lot of curiosity. He is reserved, quiet, and on the shyer side. Ms. Gama believed that G exhibited some sort of processing delay as she noticed that it took a few seconds for him to gather his thoughts, and a bit of extra time for him to put on his jacket and shoes. Some of her ability to comment on and observe G was limited because of COVID related challenges (for example, the students were masked and during on-line learning the cameras were sometimes turned off) and Ms. Gama was away from the classroom for a few weeks due to personal reasons.

[56] Ms. Gama described G as interested in animals, nature, and social studies. His marks were in the B+ to A range. He did have difficulty completing his tasks and needed extensions on due dates. He had difficulty getting started and putting pencil to paper. Ms. Gama stated that when some of G's homework or larger type projects would be handed in, they were so good that she was concerned that it may not be G's work product, and it may really be coming from one of his parents. She agreed that G needed to do more work at home than the average student and was having difficulties getting his ideas down. G also had papers all over his desk.

[57] In a response to a question by Ms. Nolis as to whether G could have benefitted from a learning assessment, Ms. Gama stated that while it may have been good to put G on a growth plan (in response to the need for a learning assessment), the fact that he was participating well, had a good level of French, and was a good reader led her to ultimately not pursue that path. She also acknowledged that due to the pandemic there were additional constraints. Notably, Ms. Gama did not refer to any incidents where G displayed anxiety or panic.

[58] Andrew Claire, G's Grade 4 math and literacy teacher, taught him for two hours a day, five days a week. He described G as a quiet, creative student who kept his thoughts to himself. G liked video games and technology and connecting to nature around him. Mr. Claire described G as distractable and as "spending a lot of time thinking". He described G as taking significantly longer to complete tasks. Once again, Mr. Claire made no reference to G being anxious or stressed out.

[59] G's report cards suggest that he is doing well at school. His Grade 4 report card dated June 21, 2021 indicates that he received "Good" grades in the areas of Organization, Independent Work, Collaboration, and Initiative for both terms; "Satisfactory" and "Good" grades under Self-Regulation for each term; and "Excellent" in Responsibility for both terms. Notably, his teacher wrote "G has demonstrated adaptability in what has been a very challenging school year." The report card notes that G often has difficulty in starting an assignment and requires more time to get work completed. G's Grade 3 report card dated June 22, 2020 indicates that he received either "Good" or "Satisfactory" grades for the second term. No grades for the first term were provided.

Conclusion on G’s Anxiety

[60] I conclude from the foregoing that:

• G is not diagnosed with anxiety and does not take any medication in respect of his mental health.
• In 2020, Dr. Noble, a psychologist who had at least four and possibly six sessions with G, felt that G did not require long term counselling or more serious treatment for his anxiety.
• In 2021, the OCL clinician felt that G presented as an anxious and sensitive child who could benefit from an assessment and therapy through a mental health clinic.
• Both parents agree that G has anxious moments. Whereas Mr. Cuthbert does not think G has any serious or long term anxiety problem, his mother believes G has anxiety, which has been about the same over the last three years.
• G is doing well in school but is easily distracted and takes a while to get going. He gets more of his work done at home than the average child, but there does not appear to be any manifestation of his anxiety at school.

ii. Ms. Nolis' Examples of Mr. Cuthbert's Poor Parenting

[61] Ms. Nolis made much of certain incidents that she claimed were demonstrative of Mr. Cuthbert's poor parenting of the children. She submitted that Mr. Cuthbert could not responsibly handle the parenting time that he currently has with the children. In other words, how could it be in the children's best interests to have more time with their father? I will touch briefly on each of the examples and provide my findings.

K's Dance Recital

[62] K has been enrolled in a dance program since at least September 2016. She was to attend end-of-year dance recital performances on Friday, May 10, 2019 at 7:00 p.m., and Saturday, May 11, 2019 at 2:30 p.m. The parties were in correspondence through Our Family Wizard (OFW) in February 2019 and Ms. Nolis provided Mr. Cuthbert with the performance dates, which landed on a weekend where the children were in his care.

[63] Despite Ms. Nolis texting Mr. Cuthbert at 6:25 p.m. on May 10 asking when K would be arriving at the theatre (her teacher was looking for her), Mr. Cuthbert did not bring K to the Friday performance. K told Ms. Nolis that Mr. Cuthbert claimed that he did not think there was a performance on the Friday night. The next day, Mr. Cuthbert did not offer to drive K to her afternoon performance. Ms. Nolis picked her up from Mr. Cuthbert's place and K performed on Saturday afternoon. At the last minute, Mr. Cuthbert purchased a ticket for the Saturday performance, watched K perform, and took her back to his place.

[64] A few months later, on July 17, 2019, Ms. Nolis sent Mr. Cuthbert an OFW communication documenting K's missed May 10th/11th dance recital. The email was written in the third person. It stated, "Ted would not commit to bringing K nor did make [sic] any effort to arrange for me to bring K to her recital despite my offers." Mr. Cuthbert responded on July 23, 2019 asking what the point of the communication was as it seemed that Ms. Nolis was documenting the incident for a third party. Mr. Cuthbert responded, "[Y]ou should not be enrolling or committing the children to events on my weekend without asking me first." Ms. Nolis replied, "[Y]ou should be bringing and/or arranging the children to their tournaments, recitals, championship games etc., if they land on your weekends."

[65] At trial, Mr. Cuthbert maintained that K was okay with not attending the Friday performance. However, I do not find that K was fine with missing her Friday performance based on the evidence presented at trial about K's interest in dance, and the fact that the Friday and Saturday shows were end of year performances. Also, Monika Leite, the mother of a student in K's dance class, provided an uncontested affidavit to the effect that the performances were the highlight of the season, and the children were well aware of the two weekend performances.

[66] I find the more likely explanation is that Mr. Cuthbert was upset that the May 2019 dance performances occurred during his parenting time. It is clear that Ms. Nolis was the one who had enrolled K in the dance program. I find that Mr. Cuthbert likely had a change of heart the next day and relented by permitting K to perform at the Saturday show. Ms. Nolis portrayed this as an act of selfishness on Mr. Cuthbert's part. I agree with that assessment. However, a careful reading of the OFW correspondence between the parties also demonstrates Mr. Cuthbert's frustration with a lack of input and control over the children's programs, particularly as they impact on what he considered to be his already meagre parenting time.

Canada's Wonderland

[67] In April 2019, Ms. Nolis was dumbfounded to learn that the previous September 2018, while Mr. Cuthbert was with the children at Canada's Wonderland, he left the children unattended while he went by himself on the "Dragon Flyer" roller coaster. The topic came up when Ms. Nolis was discussing roller coasters with G while helping him study for a science test. The children would have been five and seven in September 2018. Ms. Nolis stated that the children reported that it took Mr. Cuthbert a very long time to return from his ride, so they left their initial location and walked to the exit of the roller coaster as they did not know where their father was. Ms. Nolis produced the email conversation between the parties about this incident.

[68] Mr. Cuthbert acknowledged that he went on the roller coaster by himself. G did not want to go, and K was not tall enough to ride. Mr. Cuthbert claims that he asked another parent to keep an eye on the children and that he could see the children for most of the roller coaster ride. He stated that he returned within three or four minutes and that that he did not consider this as an overly risky situation. Ms. Nolis responded that the children did not mention that they were left under some woman's supervision, and that, in order to make his explanation believable, Mr. Cuthbert was suggesting that the children were untruthful. She strongly disputes Mr. Cuthbert's account of what transpired.

[69] I find that it is likely that Mr. Cuthbert did not exercise the best judgment in leaving children so young unattended, even if it was for only three or four minutes. Ms. Nolis is convinced that Mr. Cuthbert selfishly abandoned the children. Mr. Cuthbert is insistent that he left the children with someone who was waiting in line. It is difficult to discern the truth of what happened without litigating the entire incident. However, I note that if the children found this incident to be as serious and traumatic as Ms. Nolis made it out to be, they would have likely brought it to her attention much sooner than the following Spring. Like a number of other incidents at trial, we are left with very different perspectives from the parties about what is acceptable risk.

Concerns over Mr. Cuthbert's Disregard for Children's Health Throughout COVID

[70] Ms. Nolis alleged that Mr. Cuthbert has ignored public health advice and shown serious disregard for the children's health since the COVID-19 pandemic began in March 2020.

March 2020 Incident

[71] Ms. Nolis discovered, when trying to serve Mr. Cuthbert with court documents on March 24, 2020, that Mr. Cuthbert had a girlfriend who was unwell with respiratory symptoms, and she was staying with Mr. Cuthbert in order to avoid staying with her elderly parents. Ms. Nolis advised Mr. Cuthbert that, in the circumstances, she would not be releasing the children to his care on the Wednesday, but that he could connect virtually or make up the time on another day. Mr. Cuthbert was very upset, came to her house, and summoned the police. The same issue arose again on the Friday, the start of Mr. Cuthbert's weekend parenting time.

[72] Mr. Cuthbert's perspective is that the information about the pandemic was very new at the time, he was told that he did not have COVID symptoms and based on his symptoms he tried but could not get tested. He was distraught that Ms. Nolis was using the emerging pandemic to her advantage and that he would be prevented from seeing his children for many months.

[73] The parties' text communications and a police report concerning this incident were produced at trial. Based on the written documentation, I find that: (a) Mr. Cuthbert contacted the police complaining that Ms. Nolis was refusing to respect his parenting time. The police recorded the parties' perspectives (Ms. Nolis believing it was a health hazard to release the children to Mr. Cuthbert, Mr. Cuthbert believing that Ms. Nolis was unreasonably holding back the children) but ceased their involvement after concluding that no allegations of a criminal nature were involved. (b) A review of the text communication between the parties indicates that Mr. Cuthbert's girlfriend departed the residence on the Tuesday evening, March 24, 2020, and she returned to her family after determining that she just had a cold. Mr. Cuthbert texted Ms. Nolis that he did not have any symptoms and, based on his internet research, he was not required to isolate or quarantine simply because he had someone stay at his house. He tried getting tested but was told he could not as he was not showing any symptoms. Mr. Cuthbert said that his girlfriend having a cold was not a reason for Ms. Nolis to withhold access. (c) The text messages went back and forth, with Ms. Nolis emphasizing that Mr. Cuthbert should self-isolate, and Mr. Cuthbert pleading for Ms. Nolis to not take such an extreme position and that children are at a very low risk of getting infected. The parties exchanged 22 text messages on the subject between 11:47 a.m. and 6:03 p.m. on March 25, 2020 and multiple text messages over the next few days.

[74] On balance, I disagree that this incident constitutes an example of Mr. Cuthbert's reckless or irresponsible behaviour. I find this is evidence of individuals who took different approaches to emerging information. Ms. Nolis is convinced that there was only one proper course of action and that Mr. Cuthbert failed to take it, thereby potentially exposing her and the children to a health hazard. I do not see the choice as so clear cut. Even if I were to find that Mr. Cuthbert ought to have been more cautious, I find the relevance of this situation to his go-forward parenting time or decision-making to be negligible.

Other Examples during COVID

[75] Ms. Nolis also cited examples of Mr. Cuthbert:

• Not taking sufficient care with social bubbles, as that concept was introduced in May 2020.
• Permitting the children to be at his family's cottage over the summer while his brother and his brother's family were present and not practicing enough social distancing.
• Enrolling the children in a summer camp in July 2020 that was not sufficiently following Ministry of Health guidelines.
• Instead of following Public Health guidelines to celebrate Thanksgiving 2020 within a single household, deciding to host four different households in his backyard without adequate social distancing.
• Similarly, following the York Region lockdown on December 14, 2020, deciding to take the children to the Toronto Eaton Centre on Christmas Eve and being turned away by a security guard.
• On Boxing Day 2020, when the entire province was on provincial lockdown, allowing the children to play with their cousins who had come to visit Mr. Cuthbert's residence in Markham.
• On New Year’s Eve 2020-21, deciding to take the children to his family's cottage (I deal with this separately).
• On Victoria Day long weekend 2021, Mr. Cuthbert again defying the stay at home order and taking the children to his cottage.

[76] I reviewed the extensive OFW and other communications between the parties on each of the above points. It is evident that, with each of these incidents, the parties had different perspectives and cited different information regarding what health protocols were in place at the relevant time, how to interpret the rules, and how strictly the rules should be observed when also trying to balance out the children's mental and physical health.

[77] To the extent that certain witnesses (Mr. Cuthbert's mother, his brother, and Ms. Nolis' parents) testified regarding the above incidents, it did not contribute much to the analysis. For instance, where Ms. Nolis expressed concern that the children ate pizza in close quarters with others at Thanksgiving 2020, Tom Cuthbert (Mr. Cuthbert’s brother) testified that the children ate pizza outdoors in Mr. Cuthbert's backyard, and Mrs. Cuthbert (Mr. Cuthbert’s mother) testified that the adults and children ate outdoors in shifts.

[78] It is apparent that Ms. Nolis interprets the public health protocols in a very strict, literal manner. For example, the guidance that "children cannot interact with anyone except their parents within a six-foot distance" was taken literally. On the other hand, Mr. Cuthbert highlights the impossibility, impracticality, inconsistency, and problems with such a literal approach. For instance, in his communications he suggests that he has done his own research and concluded that there are risks to the children's mental and physical health from not getting out and playing with others. He says that children in daycares are interacting with each other so why can these children not interact? What is the harm in taking the children to the cottage where they did not interact with anyone? Why is soccer with 19 other children in close contact acceptable versus his preferred activities? And how is it okay to have K's friends over for a visit yet prevent the children from meeting their cousins on Mr. Cuthbert's side?

[79] Again, while I can understand Ms. Nolis' concerns with Mr. Cuthbert not following her interpretation of public health guidelines, I do not find his conduct so concerning that it is demonstrative of an unsafe or uncaring parent.

K "Running Away" from Mr. Cuthbert's Residence

[80] On October 28, 2020, Ms. Nolis learned from the children that a week earlier, K decided that she did not want to be at Mr. Cuthbert's home and ran away from the house with the intention of heading to Ms. Nolis' home. K would have been seven at the time. According to Ms. Nolis, K walked through the back of a schoolyard and was ten minutes away before Mr. Cuthbert tracked her down with his car.

[81] On November 16, 2020, Mr. Cuthbert wrote back to Ms. Nolis with his explanation of what happened. His note on OFW begins, "It sounds like you've been interrogating the children again. Shame." At about 4:30 p.m., after he finished work, he suggested that he and the kids should all go outside because it was a nice day. He turned the TV off and K was upset. She called him "mean Daddy." She then said she would only go outside if she could go back to Ms. Nolis' house. She tried unsuccessfully to get her brother to go. Mr. Cuthbert went outside with her, but she was still upset. K then started walking toward Ms. Nolis' house. Mr. Cuthbert was fully aware of the situation and knew she would use a certain shortcut. G came outside and Mr. Cuthbert and G jumped in a car to intercept K. K was back to her old self within about 15 minutes.

[82] In his OFW communication about this issue, Mr. Cuthbert wrote, "I wouldn't call it running away Kristine. It was more of a controlled exercise. Kids run away from their parents all the time, it's normal. I remember doing it at that age, and I'm sure you did too. There was no harm, there was no risk. Yes, she was out of my sight for a minute, or two at the most, but I knew where she was, and that school yard is a safe place." Mr. Cuthbert concluded his communication by suggesting that he should have mentioned the incident to Ms. Nolis, but he knew that she would just interrogate the children, causing them stress. He did not think it was a big deal and was not sure why Ms. Nolis was making it so. Ms. Nolis replied that "it is a very concerning safety issue" and "I know K made it quite far and the path that she walked was out of your sight." Mr. Cuthbert responded, "I knew where she was Kristine."

[83] I find it disappointing that Mr. Cuthbert took 2 and a 1/2 weeks to respond to an incident that Ms. Nolis considered serious. Also, I disagree with Mr. Cuthbert's statement that "[k]ids run away from their parents all the time, it's normal". There is a significant difference between a 14-year-old stepping out of the house without a parent's permission, and a 7-year-old running away from home (i.e., for an extended time). On the reality of what happened though, and based on the OFW correspondence I reviewed, I do not find that Mr. Cuthbert demonstrated careless conduct in respect of K's safety. Ms. Nolis is convinced that she knows precisely what happened because of what the children told her. And Ms. Nolis does not believe any part of Mr. Cuthbert's explanation. She said as much at trial when she stated, "I think that there is absolutely zero trust in our relationship."

[84] Once again, the facts demonstrate that the children did not even raise this as an issue for a week. G would have been nine years old at the time. I find that if this incident was as serious as Ms. Nolis has portrayed, the children would have told their mother and/or others almost immediately. Moreover, Ms. Nolis' view appears to be that it was not acceptable for Mr. Cuthbert to lose sight of K for even a minute. This corroborates Mr. Cuthbert's portrayal of Ms. Nolis as a hypervigilant parent.

[85] I find that the incident clearly demonstrates that Ms. Nolis does not trust Mr. Cuthbert's parenting. On the other hand, Mr. Cuthbert, at trial and otherwise, did not raise incident after incident about Ms. Nolis' parenting. Although, I will note that Mr. Cuthbert believes that Ms. Nolis is overly protective of the children and is raising them to be overly dependent on her.

Snowmobiling Incident on December 31, 2020

[86] Ms. Nolis wrote to Mr. Cuthbert on January 16, 2021 expressing concern that on December 31, 2020, Mr. Cuthbert took the children to his cottage. The cottage visit was at a time when no travel out of York Region was allowed unless it was for essential reasons. The children told Ms. Nolis that after they arrived Mr. Cuthbert left the children unsupervised in the cottage while he rode around on his snowmobile. Ms. Nolis also complained that the cottage is not winterized, and that Mr. Cuthbert uses a propane heater inside to try to warm it up.

[87] Mr. Cuthbert responded that there was no lockdown at that point and, as he read the rules, people were permitted to go to their cottages or ski chalets over the holiday break so long as they avoided contact with others. He reminded Ms. Nolis that the cottage is one of the locations that he is permitted to take the children without advance approval from her. Further, he stated that Ms. Nolis does not advise Mr. Cuthbert where the children are every night, for instance when they are at Ms. Nolis' parents.

[88] Regarding snowmobiling, Mr. Cuthbert stated in his correspondence and testified at trial that while the children were in the cottage, he went to a garage that is located about 100 feet away to tend to his snowmobile. He drove the snowmobile in front of the cottage and took K for two four to five minute snowmobile rides while G played in the snow. He claimed that there was nowhere to go as there are no trails. He had previously advised the children on safety issues, so they would know what to do if something happened to him. Also, the cottage has neighbours 200 feet away. He knew these neighbours were home because he had to park in their driveway, as his was not cleared of snow. Mr. Cuthbert thought this would be a great getaway for the children, as they could not do much at home.

[89] Once again, I find this incident emblematic of so many other incidents raised in the proceeding. Was taking the children out of York Region to Mr. Cuthbert's unwinterized cottage and driving around on a snowmobile somewhat risky? Yes, but does this demonstrate that Mr. Cuthbert is an irresponsible parent who cares only about his needs to the detriment of the children? I find that it does not.

Attendance and Punctuality at Hockey Games and Soccer

[90] Ms. Nolis suggested that Mr. Cuthbert's uncaring attitude towards the children is also evident in his lack of attendance and/or punctuality at the children's hockey and soccer games. Much time was spent at trial going over Mr. Cuthbert's conduct in respect of the children's sporting activities. Ms. Nolis suggested that pre-COVID Mr. Cuthbert rarely attended the children's early morning activities. At times, he showed up late, or left early. The OCL Report noted that K advised that although Mr. Cuthbert sometimes brought her to her activities, he did not usually watch the hockey game, but rather walked around the arena. George Nolis, the applicant's father, deposed that Mr. Cuthbert's attendance at the children's sporting activities (hockey and soccer) was unpredictable. Sometimes he did not show up, sometimes he arrived very late, or left early.

[91] In cross-examination, Ms. Nolis conceded that the times that Mr. Cuthbert’s attendance or punctuality at the children's games was of concern were during her parenting time. In other words, there was no obligation on Mr. Cuthbert to attend. Ms. Nolis suggested, fairly in my view, that the children like their parents to watch them play sports. Mr. Cuthbert responded that he had such little time with the children that he dropped by the children's sporting activities when they were in Ms. Nolis' care just to see them.

[92] I find that Ms. Nolis' portrayal of Mr. Cuthbert's spotty attendance and lack of punctuality at the children's sporting activities is accurate. I also believe that Mr. Cuthbert drops by the activities to see his children. The trial heard considerable evidence that one or both of Ms. Nolis' parents often attend these sporting activities and that these have led to uncomfortable and awkward encounters.

[93] I find that the combined attendance of both parties at the children's routine sports activities is a source of conflict. For instance, I heard and read evidence that on November 12, 2018, Mr. Cuthbert swore at Ms. Nolis in a hockey change room because he perceived that she was needlessly present and interfering with him as he was trying to put on K's skates. OFW correspondence captured the parties' various perspectives. I find the following communication from Mr. Cuthbert to Ms. Nolis to be revealing:

Why you need to be in the change room needlessly when I am putting the kids hockey gear on is beyond me. It is crowed [sic] enough in there as it is without another parent and sibling in the way.

Why you insist on keeping their equipment and won’t give it to me on the weekend the children are in my care.

Why you insist on coming to every game and practice and getting in the way of my relationship with my children.

You are controlling Kristine. You have a problem. Please for the sake of everyone. Mostly are children…Get Yourself Some Help.

[94] Ms. Nolis used Mr. Cuthbert's conduct at the children's sporting events to paint him as a selfish and uncaring parent. I agree that it makes little sense for Mr. Cuthbert to show up late, leave early, or appear disengaged while in attendance. But I also find that Mr. Cuthbert is showing up to see the children because he does not feel he gets sufficient time with them. The meetings are awkward and strained due to the presence of Ms. Nolis and her parents. I find that when Ms. Nolis shows up at the children's activities during Mr. Cuthbert's parenting time, it is causing conflicts that are detrimental to the children. As discussed below, I find that allowing both parents to be present for routine sports or other activities is causing too much conflict and should be avoided.

iii. The OCL Report

[95] Earlier in my Reasons, I touched on the OCL Report to the extent that it discussed G's anxiety. Here, I summarize the Report and the OCL Clinician Ms. Burrow's testimony.

[96] The OCL became involved following the request of Justice Stevenson in her November 22, 2019 order. Ms. Burrows, an experienced clinician, was assigned on January 10, 2020 and filed her report with the court on September 8, 2020.

[97] The Report noted that Mr. Cuthbert raised several issues and concerns: he felt that Ms. Nolis' refusal to give him more parenting time is driven by her own needs, rather than the needs of the children; Ms. Nolis intrudes on his parenting time and attends every activity with the children; despite "joint custody," Ms. Nolis makes all the decisions and sends him the bill; Ms. Nolis will not let him register the children in weeknight activities; and Ms. Nolis does not respond to OFW messages in a timely manner.

[98] Ms. Nolis raised her own concerns about Mr. Cuthbert. She suggested that the current parenting schedule has been in place for many years and represents a stable, consistent routine for the children in which they are thriving. She says Mr. Cuthbert's motivation for changing the parenting schedule is to decrease his child support. She also says that Mr. Cuthbert has engaged in several concerning incidents (punching her car, swearing at her in front of the children, taking the children camping without telling her where, preventing her from speaking to the children, leaving the children unattended at Canada's Wonderland, and refusing to answer questions during the COVID-19 pandemic).

[99] The OCL Report delved into the personal histories of the parties, their views of the children, and their plan of care.

[100] The OCL Report indicated that K, 7, and G, 9, presented as friendly children, who spoke freely about their families. Both children attend French Immersion.

[101] The Report noted that G spoke positively about his mother and negatively about his father. He described his father as sometimes being mean to him and his mother. G recalled that his father had hit his mother's car once with his hand during an exchange because he was angry, and he swore at her in a change room. G's visits with his father are boring and his father is not very involved with him during visits. G loves his mother's home, where he has a dog, a swimming pool, plays sports, and has fun. His mother spends more time with him. G would like to continue to see his father on the Wednesday visits, but he would like to come home on Sunday morning rather than at 5:00 p.m. He also does not want to spend a week with his father during the summer.

[102] The Report also noted that K described her mother in positive terms and her father in negative terms. Her father sometimes said "bad words" to her mother. She also gave the example of her father hitting her mother's car. Her father did not usually watch her play hockey but walked around the arena. She does enjoy playing some games with her father but does not want to go camping or to the cottage with him. She did not want to sleep at her father's place. She only wants to see her father on Wednesday evening visits and not on the weekends. She stated, "I feel safer with Mommy. She's nicer and does what we like. I do not feel safe with Daddy. He says bad stuff to Mommy."

[103] The Report described Mr. Cuthbert as a caring father who wants his children to spend half their time with him. He wants to share with them his love of skiing, camping, and going to the cottage.

[104] The Report also described Mr. Cuthbert as having a history of mental health issues. He had been assessed at various clinics. The Report noted that there was a family history of mental health issues in Mr. Cuthbert’s family. He has Seasonal Affective Disorder, and has been diagnosed with ADHD, Generalized Anxiety Disorder, and possible Major Depressive Disorder. He has also been diagnosed with possible Bipolar Spectrum Disorder. He is not on medication currently. He has previously attended counselling to cope with the custody dispute.

[105] The Report described Ms. Nolis as a caring mother who is trying to protect the children during the custody dispute. She is very close to the children and very involved with them. However, at times, she unwittingly places the children in a position where they are caught in the middle of parental conflict. By attending all their activities, even during Mr. Cuthbert's time, she places the children in the middle. The OCL Report recommended that only the parent who has the children at the time attend their activities, unless it is a recital or school concert or play where there is an audience. Ms. Nolis should continue her supportive counseling.

[106] The OCL Report noted that the children are very sensitive to their parents' conflict and have sided with their mother. They have witnessed their father "being mean" to their mother. Each parent blames the other for the conflict. Ms. Nolis believes that Mr. Cuthbert keeps pursuing half time with the children, which is not what the children want or what is in their best interests. Mr. Cuthbert perceives Ms. Nolis as controlling and over-involved with the children.

[107] The Report emphasizes that the children need a relationship with both parties. If the court dispute and conflict continue, it is possible that the children will eventually not want to see their father at all. The Report concluded that both children have consistently said that they want less time with their father and not more. The OCL recommended that the current parenting schedule remain in place. It noted that "this could be a crossroad where what the parties do next will have lasting effects on their children's future mental health."

[108] Ms. Burrows noted that there was a final order for joint custody. The parties stated that the OCL investigation is only about access (parenting time) because they have a final order, so the report did not address decision-making.

[109] The OCL Report also recommended, with respect to telephone contact, that each parent should be able to speak with each child for a maximum of ten minutes daily on the days he/she does not see them.

[110] At trial, both parties cross-examined Ms. Burrows. Ms. Burrows advised that the last time she spoke to the children was July 9, 2020 and it was virtually. On cross-examination by Mr. Cuthbert, she agreed that the children had an increased level of anxiety due to the pandemic and that, at the time, the schools had been closed for about 3.5 months. Mr. Cuthbert attempted to suggest that the children parroted Ms. Nolis' views about parenting time, however, Ms. Burrows felt confident that the children's views were their own because they were able to give details and reasons for what they felt and said.

[111] Ms. Nolis' cross-examination of Ms. Burrows inquired about how concerned the clinician was about Mr. Cuthbert's mental health. She said she was concerned because there has been a history of mental health issues and Mr. Cuthbert was not taking any medication. She suggested that he should seek to manage his mental health in case any issues arise again.

[112] In response to a question I asked about the OCL's recommendation that both parents not attend the children's activities, Ms. Burrows explained that the reduction of conflict between parents is more important for the children than the fact that one parent will not be at the activity.

iv. Preventing Children's Medicals from Proceeding and Loss of Children's Family Physician

[113] Ms. Nolis blames Mr. Cuthbert for preventing Dr. Mastrogiacomo, the children's long-time family doctor, from conducting routine physical examinations on the children in January 2021, and for Dr. Mastrogiacomo's decision to discharge the children from her care. Ms. Nolis cites this as an example of Mr. Cuthbert's obstructive conduct, and why the court should provide her with sole decision-making.

[114] Dr. Mastrogiacomo was the children's family physician from the time the children were babies until January 31, 2021. She has been practicing family medicine for 31 years. Ms. Nolis called Dr. Mastrogiacomo to testify at this trial. At the 2017 trial, Mr. Cuthbert subpoenaed her attendance.

[115] The children's annual physicals did not take place in 2020 due to COVID. Ms. Nolis claims that she only found out on January 12, 2021 that the doctor's office had scheduled the children's medicals for the next day, January 13, 2021. She promptly shared this information with Mr. Cuthbert. The doctor's office had a policy, due to COVID, that only one parent could attend the appointment. She advised Mr. Cuthbert that she was going to be present in the waiting room and that he could contact the office to determine if he could wait there as well.

[116] When Ms. Nolis attended the appointment with the children on January 13, she was told that Mr. Cuthbert had called earlier that day. Over the phone, he indicated that he had joint custody and was not authorizing the physicals to proceed without his attendance. Dr. Mastrogiacomo then cancelled the examinations.

[117] On January 16, 2021, the parties each received a letter from Dr. Mastrogiacomo advising that she was discharging the children from her care due to Mr. Cuthbert's lack of trust in her.

[118] The OFW correspondence regarding the medical appointments indicates that Ms. Nolis advised Mr. Cuthbert on January 12, 2021 that she had scheduled the children's annual physicals in November 2020 for January 13, 2021. Ms. Nolis testified that she thought that when the COVID lockdowns came into effect in Toronto, the physicals would not proceed as planned. However, the appointments were not cancelled. On January 12, Mr. Cuthbert responded, "[W]hy are you making the assumption that if only one person can attend, it will be you not I?"

[119] On January 16, after the physicals were cancelled, Ms. Nolis sent a longer response to Mr. Cuthbert indicating that, as she was the one who routinely took the children to their health appointments, it was expected that she would attend on January 13. Also, the appointment took place during her parenting time. Ms. Nolis said she understood that Mr. Cuthbert phoned the doctor’s office on January 13 and when he found out that Dr. Mastrogiacomo was going to perform the physicals, he withdrew his consent to proceed without his presence. Ms. Nolis accused Mr. Cuthbert of being irresponsible and interfering with the children's routine care.

[120] In Dr. Mastrogiacomo's January 16 letter, she advised that on January 13, Mr. Cuthbert explicitly forbade her from proceeding with the medical examinations of the children, or from filling out any forms or referrals for them. She wrote, "[T]his clearly illustrates to me that he has a fundamental lack of trust in me as your children's physician. Therefore, the doctor-patient relationship has broken down and this makes it impossible for me to continue providing quality care to your children." She offered to summarize the children's records for the children's next family doctor.

[121] In his trial affidavit, Mr. Cuthbert explained that on June 14, 2016, Dr. Mastrogiacomo issued an unusual medical note stating, "I don't think having G spend more time with his father is a good idea at this time - at least until he is assessed by child psychology". Ms. Nolis used this note at all the pre-2017 trial motions and at the 2017 trial to oppose Mr. Cuthbert having more time with the children. Ultimately, however, Justice Goldstein rejected this aspect of Dr. Mastrogiacomo's evidence:

[111] Ultimately Dr. Mastrogiacomo noted in her chart that it was not advisable for the children to spend more time with their father. She said that G did not manage change well. She felt that G's issues were all related to spending time at his father's house.

[112] I found Dr. Mastrogiacomo's views difficult to accept. Except for one session where Ms. Nolis was not present, all of her information came either from Ms. Nolis or from a session where Ms. Nolis was present when she talked to G. It is not clear to me whether Dr. Mastrogiacomo asked G open-ended questions at that session, or focussed her questions on Mr. Cuthbert. Furthermore, she did not seem to entertain the possibility that there might be other causes of G's anxiety - for example, the evidence about G not making friends easily at daycare. There was virtually no information about how he did at school - or the fact that he had changed schools frequently. Or whether his feelings of anxiety came from the fact of the dislocation itself. Dr. Mastrogiacomo felt that a child psychologist should assess G - a very reasonable step. That said, Dr. Mastrogiacomo also leaped to the diagnosis that the cause of his anxiety was spending time with his father. The implication of that observation was that the fault lay in Mr. Cuthbert's parenting of G. Certainly that was Ms. Nolis's conclusion. Dr. Mastrogiacomo seems not have considered wither [sic] G simply has an anxiety disorder, or whether he has a disorder that is exacerbated by spending time with his father, or whether there is some other cause. Moreover, she seems not to have considered the fact that K spent time with her father and did not have the same anxiety issues. Finally, I find that her information is dated.

[122] Mr. Cuthbert explained that he was wary of the children attending a medical appointment with Dr. Mastrogiacomo without his attendance given his previous experience and particularly as this matter was headed to trial in 2021. At the trial before me, Mr. Cuthbert drew a distinction between the referral form that Dr. Mastrogiacomo was asked to fill out with respect to G attending an out-patient mental health program at Markham Stouffville Hospital, and the children's physicals. Mr. Cuthbert insisted that when he spoke to the receptionist at Dr. Mastrogiacomo's office on January 13, he told her that the doctor could go ahead with the routine physicals but could not complete the referral form without seeking his input.

[123] On March 1, 2021, Mr. Cuthbert responded to Dr. Mastrogiacomo's January 16 discharge letter. He stated that he agreed to the children's examinations going ahead but, with respect to the referral letter, he merely asked to be included via phone, or otherwise consulted and involved in discussing the results of the children's annual medicals and any issues and referrals. He explained that it was not that he did not trust the doctor but rather that the note that Dr. Mastrogiacomo wrote in 2016 was used in subsequent court proceedings by Ms. Nolis. Mr. Cuthbert asked Dr. Mastrogiacomo to reconsider her decision. He also enclosed the Markham Stouffville Hospital mental health out-patient clinic referral form for the doctor to complete and send directly to the hospital or one of the parties.

[124] At trial, Dr. Mastrogiacomo testified that the last time she saw G and K was January 2017 and December 2016 respectively. A locum physician assigned to her office conducted the subsequent examinations. She confirmed that she did not speak directly to Mr. Cuthbert on January 13 but a secretary from her office spoke to him and took some notes. She acknowledged that Mr. Cuthbert asked to participate on January 13 via telephone, but the office does not permit such attendance.

[125] On cross-examination by Mr. Cuthbert, Dr. Mastrogiacomo insisted that her secretary advised her that Mr. Cuthbert withdrew his permission when he understood that it was Dr. Mastrogiacomo who was going to perform the examinations. She testified that the whole encounter showed her that Mr. Cuthbert did not have trust in her and that she was "afraid to lay hands on those children, alarm bells just started going off." She explained that, in any event, she would not have filled out the mental health referral form at the same time as she conducted the physical examinations as that was not her practice. Like other busy practitioners, she completes such forms while working from home. In this case, she subsequently spoke to Mr. Cuthbert on March 16 about G, and submitted the referral form for intake.

[126] I find it unlikely that, on January 13, Mr. Cuthbert told Dr. Mastrogiacomo's assistant that the doctor could proceed with the physicals but that it was only with respect to the referral form for G that he needed to be present or consulted. It is far more likely that when Mr. Cuthbert found out that Dr. Mastrogiacomo was the physician who was going to conduct the examinations, given what happened with the form the doctor filled out in 2016, he was wary of what may happen if the examinations proceeded without his participation in some manner. To that extent, I agree with Ms. Nolis that in January 2021 Mr. Cuthbert prevented the children's physical examinations from proceeding.

[127] In this context, I do not agree that Mr. Cuthbert's actions were unreasonable. First, the evidence indicates that when Ms. Nolis made the children's doctor's appointments in November 2020 for the following year she did not advise him. Given that the parents have joint decision-making, I find this deliberate. Additionally, while it may have been true that the COVID lockdowns could have resulted in the appointments being cancelled, this is not a reason to not advise the other parent. Second, it is clear that Mr. Cuthbert only found out about the January 13, 2021 physicals the previous day, which did not provide adequate opportunity to participate. Justice Goldstein found that in 2016, Dr. Mastrogiacomo had leaped to a questionable conclusion that the cause of G's anxiety was spending time with his father. Given that this conclusion was strongly relied upon by Ms. Nolis in subsequent legal proceedings, I find it understandable that Mr. Cuthbert was not prepared for the physicals to proceed without some form of his participation.

[128] Ms. Nolis also blames Mr. Cuthbert for Dr. Mastrogiacomo's decision to discharge the children from her care. Based on her testimony at trial, I find that the decision had far more to do with Dr. Mastrogiacomo's attitude than Mr. Cuthbert's conduct. When Mr. Cuthbert put to the doctor that he was only told about the appointments the previous day, Dr. Mastrogiacomo responded that it was plenty of time. When he suggested that the doctor had discharged the children because she did not want to get involved in legal proceedings, she insisted that it was because he did not trust her. But just earlier in her testimony, the doctor had spoken about not wanting to lay hands on the children because alarm bells were going off.

[129] Ultimately, I do not find it surprising that Dr. Mastrogiacomo felt not trusted or offended when Mr. Cuthbert stopped her from proceeding with the medical examinations on January 13. However, proceeding to discharge the children from her care without even speaking to Mr. Cuthbert (or Ms. Nolis for that matter) is a decision that lands at the feet of Dr. Mastrogiacomo, not Mr. Cuthbert. Mr. Cuthbert did not prevent the medical examinations from proceeding indefinitely. He insisted on being physically or telephonically present, or at least being consulted by the doctor. Dr. Mastrogiacomo finally spoke to Mr. Cuthbert on March 16, but by that time she had already decided to discharge the children on January 16 and refused to change her mind despite Mr. Cuthbert's request that she reconsider on March 1.

[130] There were other courses of action available to Dr. Mastrogiacomo. After January 13, she could have spoken directly to Mr. Cuthbert and rescheduled the appointment to a day when he was available. Alternatively, she could have inquired as to the basis of his concern or asked that he reconsider his position, failing which she would have no choice but to discharge the children from her care. She did none of those things. Ms. Nolis wants the court to draw the conclusion that Mr. Cuthbert's decision-making was to blame. I find that is an oversimplification that completely ignores Justice Goldstein's previous finding regarding Dr. Mastrogiacomo's involvement, Ms. Nolis' failure to notify Mr. Cuthbert about the date of the appointment, and the distinction between the physicals not proceeding that day (for which Mr. Cuthbert is mostly responsible), and the discharge of the children from the doctor's care (for which he is mostly not).

[131] I was also troubled by Ms. Nolis' failure to advise the court that Dr. Mastrogiacomo is her own family physician. That information came from Mr. Cuthbert as of September 2021 and was noted in Justice Goldstein's decision.

G. Material Change in Circumstances

[132] I find that a material change in circumstances is not necessary and that a change in the parenting schedule can still occur so long as it is in the best interests of the children. In the alternative, I would find that G's anxiety has improved sufficiently from the time of the last trial, and this represents a material change in circumstances. Relatedly, I find that G's anxiety or anxious condition is no worse when he is with Mr. Cuthbert than with Ms. Nolis.

[133] The parties are an unmarried couple. The Children's Law Reform Act, R.S.O. 1990, c. C.12 applies. Section 29(1) of the CLRA states:

A court shall not make an order under this Part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interest of the child who is the subject of the order.

[134] Ms. Nolis relies on this provision to argue that, since Mr. Cuthbert was deemed by Justice Myers' order to have brought a Motion to Change a final order, he must demonstrate a material change in circumstances. However, attention must be paid to the wording of Justice Goldstein's decision and order.

[135] Justice Goldstein's Reasons state:

[6] In my view, it would not be in the best interests of the children at this time to change the access arrangements but I do think Mr. Cuthbert should have the opportunity to change access to 50/50 as the children get older. I accept that it would cause too much anxiety to G, the oldest child, to change the arrangements at this time and that, on a balance of probabilities, that it is currently not in the best interests of the children to change it. G's anxiety seems to have improved with age, however. I therefore think that Mr. Cuthbert should be able to move for 50/50 access as the children get older.

[103] In this particular case I think more access for Mr. Cuthbert is in the best interests of the children, but I also think that it must be done in a gradual, monitored way so as to acclimate the children. The current schedule seems to be working and the children seem to be adjusting well. I would not change the situation just yet, but after the expiry of one more year I think permitting Mr. Cuthbert the opportunity to have further formal access is in the best interests of the children.

[136] Justice Goldstein's Order states:

The access arrangement shall remain unchanged until August 1, 2019 or until such time that the parties agree on a new access arrangement, or a further order of this court.

After August 1, 2019, the Applicant father may apply to increase access eventually leading to 50/50 access. The parties will attempt to work out a schedule. The parties may speak to the matter before Justice Goldstein or another judge if they are unable to work out an access schedule. Any new application regarding access shall be brought as part of this file / proceeding.

[137] I consider Justice Goldstein's order to incorporate a review of the parenting arrangement after one year. The review entails determining what is in the best interests of the children regarding the parenting schedule. It does not require the party requesting a change to first demonstrate a material change in circumstances.

[138] My interpretation of Justice Goldstein's order is consistent with Justice Myers's August 15, 2019 order where, at paragraph 2, he stated:

The order is a final order but Justice Goldstein made it clear that the process could occur without a material change.

[139] My interpretation is also consistent with Kirichenko v. Kirichenko, 2021 ONSC 2833, where Justice Charney held:

[30] The second exception to the material change in circumstances requirement applies when the temporary order is expressly or by necessary implication time limited, and it is the intention of the court that the order be reviewed and subject to change after a specific event, date or period of time.

[140] I find that Justice Goldstein's final order was made with the intention of maintaining the status quo for one year but, after that, permitting Mr. Cuthbert to seek to increase his parenting time without the necessity of demonstrating a material change in circumstances.

H. Parenting Time

i. What is the Applicable Law Concerning the Best Interests of the Children?

[141] Section 24(1) through 24(6) of the CLRA sets out the parameters to consider when determining the best interests of the child. Primary consideration is given to the child's physical, emotional, and psychological safety, security, and well-being: 24(2).

[142] In Southorn v. Ree, 2021 ONSC 7819, Graham J. described several of these provisions:

[355] Subsection 24 (1) stipulates that when making a parenting order, a court shall only take into account the best interests of a child in accordance with section 24.

[356] Subsection 24 (2) provides that in determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child's physical, emotional an [sic] psychological safety, security and well-being.

[357] Subsection 24 (3) provides that factors related to the circumstances of a child include, (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 parent, each of the child's siblings and grandparents and any other person who plays an important role in the child's life; (c) each parent's willingness to support the development and maintenance of the child's relationship with the other person, (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, 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 co-operate, 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 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 co-operate 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.

[359] Subsection 24 (5) stipulates that in determining what is in the best interests of a child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person's decision-making responsibility or parenting time with respect to the child.

[360] Subsection 24 (6) provides that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

[361] Subsection 18 (1) stipulates, "decision-making responsibility" means responsibility for making significant decisions about a child's well-being, including with respect to, (a) health, (b) education, (c) culture, language, religion and spirituality, and (d) significant extra-curricular activities; "family member" includes a member of a household of a child or of a parent, as a dating partner of a parent who participates in the activities of the household; "family violence" means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct; [emphasis added] "parenting time" means the time a child spends in the care of a parent of the child, whether or not the child is physically with the parent during that time.

[363] Judicial decisions concerning decision-making responsibility indicate that, generally, joint decision-making responsibility may be appropriate where it is in a child's best interests for more than one person to have that responsibility, and all persons with decision-making responsibility are able to communicate appropriately with each other and make decisions together, based on the best interests of the child.

[364] The court's role in a decision-making responsibility and parenting time case is to decide what is in the child's best interests at that time. While historical information may be of assistance, it is the present time that matters, with an eye to the future, but keeping in mind that the future cannot be predicted with certainty. If circumstances change in a material way over time, then a motion to change is available to bring the issue of the child's best interests back before the court.

ii. What Parenting Time Allocation is in the Children’s Best Interests?

[143] I note, pursuant to s. 24(6) of the CLRA, in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. Under s. 24(5), in determining what is in the best interests of a child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person's decision-making responsibility, parenting time, or contact with respect to the child.

[144] A considerable part of this trial involved Ms. Nolis attempting to demonstrate that Mr. Cuthbert's parenting is so deficient that it would not be in the best interests of the children to expand his parenting time. However, the evidence demonstrates that these parties are capable and loving parents with different parenting styles. I find that the children can benefit from a strong relationship with both their mother and father and that an equal parenting arrangement, achieved in a reasonably prompt timeframe, is in the best interests of the children.

[145] Mr. Cuthbert focused more on the reasons for increased parenting time, rather than the rationale for the particular step-up changes that he suggested, namely, achieving a 2/2/5/5 equal parenting plan within a year for the regular school schedule. I make a different order as explained below.

[146] An appropriate place to begin my analysis of what is in the best interests of these children is to look back at the key findings of Justice Goldstein's decision from 2018.

[147] Justice Goldstein found that the conflict between the parties made it difficult for them to parent. The first trial was supposed to be about custody of and access to the children and it was that, to a degree. However, Ms. Nolis viewed it as an opportunity to litigate all the perceived ills of the parties' relationship. The families took sides.

[148] Ms. Nolis regarded herself as the sole arbiter of the best interests of the children, and Mr. Cuthbert's parenting time as a favour to be granted to him. Mr. Cuthbert's early parenting failures were real. He minimized them and blamed Ms. Nolis for a lack of access in those early years when it seemed clear that he often did not exercise access due to his personal issues.

[149] Justice Goldstein accepted that G was an anxious child, whereas K seemed to be an adaptable and happy child. He did not think it was in the best interests of the children in September 2018 to change the parenting schedule as it would cause too much anxiety to G. However, he ruled that Mr. Cuthbert should be able to move for 50/50 access as the children got older. He strongly encouraged the parties to work out a schedule that involved gradually increasing Mr. Cuthbert's access. That never happened. But it was not for lack of trying on Mr. Cuthbert's part. I find that Ms. Nolis has steadfastly and unreasonably refused expansion of parenting time for Mr. Cuthbert.

[150] Justice Goldstein found that, despite the parties’ "mutual loathing," joint custody was in the best interests of the children as the parties were still able to communicate on the essential issues once they focused on the children and not on themselves.

[151] I saw similar patterns in the trial before me. Ms. Nolis continues to see herself as the gatekeeper to the children and believes that only she knows what is best for them. Mr. Cuthbert sometimes deflects blame for what are his poor choices, like failing to take K to her dance recital, but I do not find his parenting behaviour as problematic as portrayed by Ms. Nolis.

[152] I do not find it necessary to go through every single factor identified in s. 24(3). Suffice to say, I have considered them all in reaching my decision. Some factors, such as the referral to family violence, I do not find applicable. I will nevertheless briefly discuss my findings in respect of a few factors concerning the circumstances of the children.

S. 24(3)(a): The child's needs, given the child's age and stage of development, such as the child's need for stability

[153] G is now 11 and K is now 9. They are no longer very young children. They do not require constant or frequent physical monitoring. The parties have been separated since March 2014, a period of eight years.

[154] The children are doing well in school. The teachers who testified saw no issue with their progress, albeit it takes G a little bit of time to get going. Both children were, at the time of trial, in French Immersion. Both parents' evidence is that the children are thriving, although Ms. Nolis is far more concerned about G's anxiety. However, there was no evidence that G's anxiety is increased by spending time with his father.

[155] I find that the children could benefit from the different parenting styles of the parties and, in particular, greater time with Mr. Cuthbert. The evidence suggested the parents often disagree about the appropriate degree of risk for the children. Mr. Cuthbert gave examples of encouraging the children to take more, but appropriate, risks in water sports or outdoor activities, and take on new experiences.

[156] I share Mr. Cuthbert's concerns that Ms. Nolis is over-protective and overly involved with the children. Mr. Cuthbert's evidence regarding G having difficulty tying his laces and Ms. Nolis assisting G in the bathroom were not contradicted. Ms. Burrow, the OCL clinician noted:

Ms. Nolis is a caring mother who is trying to protect the children during the custody dispute and has maintained her position that the children should not be spending half time [sic] with their father. She is aware that G has anxiety and worries about him. She is very close to her children and very involved with them. However, at times, she unwittingly places the children in a position where they are caught in the middle of the parental conflict. By attending all their activities, even when it is Mr. Cuthbert's time with the children, she places the children in the middle, and at times they have witnessed the conflict between the parents.

[157] Kalifa Buchanan, K's Grade 2 teacher, described Ms. Nolis as being "very involved" in K's on-line schooling.

[158] I note that Linda Gama, G's Grade 4 teacher, testified that some of G's larger homework projects were so good that she was concerned about whether this was really G's work product, or it was coming from one of his parents. Given the paucity of time that Mr. Cuthbert spends with the children and Ms. Nolis' evidence of her involvement in the children's homework (such as preparing binders for G), I take Ms. Gama's evidence to suggest that Ms. Nolis is significantly assisting the children with their homework. I found that homework was a much bigger focus for Ms. Nolis than it ought to have been for children so young.

[159] This is not to criticize Ms. Nolis for the obvious effort and care that she puts into the children. But the evidence suggests that Mr. Cuthbert is trying to emphasize different values, such as independence and appropriate risk taking. On the evidence presented, I find that the children can benefit from these values and aspects of parenting that comes from their father.

[160] Although I did not find the evidence of Mrs. Cuthbert (the applicant's mother) or Mr. and Mrs. Nolis (the respondent's parents) to be of much value — they appeared to be wholly partisan in their observations — I did find the evidence of Tom Cuthbert (the applicant’s brother) useful and reliable. Tom Cuthbert answered questions directly and not in a way that was necessarily in his brother's interest. For instance, in cross-examination, he acknowledged that the children were served processed food that was previously frozen. He also answered that G played video games, and that he has heard the respondent talk about homework with the children but has not actually observed his brother doing homework with them. These struck me as honest answers. I note, parenthetically, that Justice Goldstein also found the brother to be a credible witness in the previous trial.

[161] Tom Cuthbert has two children that are of a similar age to G and K. Although Tom Cuthbert's ability to observe his brother's interaction with G and K was more limited due to COVID, he deposed, "I continue to observe Ted's interactions with his children as that of a typical child-parent relationship." In the summer of 2021, Tom's family spent two days at their family cottage where they interacted with the applicant and his children. Tom's observations, which were not cast into doubt on cross-examination, were that his brother continues to take efforts to look after the children, such as setting up climbing ropes and cleaning old toys and books for the children to use and taking the children camping, to parks, and to Centre Island. Tom deposed that he and his wife do not understand why the applicant is not able to see his children more often. He also deposed that, from what he has observed, the applicant has been successful in getting his children to eat healthy foods, notwithstanding the occasional processed or frozen food.

[162] Mr. Cuthbert resides in a three-bedroom home in a neighbourhood close to the children's school and the respondent's home. The children each have their own bedroom at Mr. Cuthbert's residence and there was no suggestion that the home was inadequate for their needs.

[163] My finding is that both parents are equally capable of providing a stable home for the children. At the children’s age and stage of development, they can benefit from a parent who, while being caring, will also encourage them to be more independent and accountable for their well-being and responsibilities.

S. 24(3)(b): The nature and strength of the child's relationship with each parent

[164] The evidence at trial suggests that the children are currently closer to their mother. The OCL clinician phrased it as, "It appears that both G and K are very sensitive to their parents' conflict and have sided with their mother. They have witnessed their father 'being mean' to their mother. Each parent blames the other for the conflict."

[165] The evidence, particularly from the OCL, suggests that the children do not want, at this point, to spend more time with the father. Why then, am I ordering that they do so? Put simply, I still find it in their best interests to do so.

[166] The best interests of children are not necessarily the same as the wishes of the children or of the parents: see Kaplanis v. Kaplanis, at paras. 10 and 13. Given that the children are 9 and 11 years old, their views are relevant but not determinative. Although stated with respect to custody (now decision-making), not parenting time, Julien D. Payne and Marilyn A. Payne, Canadian Family Law, 5th ed. (Irwin Law, 2013) addresses the child's preferences when determining the best interests of the child in custody disputes:

The best interests of a child are not to be confused with the wishes of the child, but a child's views and preferences fall within the parameters of a child's best interests. When children are under nine years of age, courts do not usually place much, if any, reliance on their expressed preference. The wishes of children aged ten to thirteen are commonly treated as an important but not a decisive factor. The wishes of the children increase in significance as they grow older and courts have openly recognized the futility of ignoring the wishes of children over the age of fourteen years.

[167] As part of the context for viewing the evidence, I must consider that Mr. Cuthbert is viewed as the parent who will sometimes say "no" to the children's demands. In contrast, there was evidence that Ms. Nolis is sometimes too permissive with the children. For instance, the OCL clinician noted that "K said she sleeps in her mother's bed all the time. K said that her mother lets the children do more stuff and go places they want. She's nicer and does what we like." But parenting is not a popularity contest: R.G. v. J.G., 2022 ONSC 1678, at para. 184. This is another area where I find that spending more time with Mr. Cuthbert is in the best interests of the children.

[168] I did not find Elaine Christens' evidence particularly informative. She is the next-door neighbour of Ms. Nolis and was called to share her observations of the interactions between the parties and their children. Ms. Christens described all interactions with Ms. Nolis in glowing terms, and with Mr. Cuthbert in negative terms. She claims that when Mr. Cuthbert picks the children up for his parenting time the children's reluctance is noted on their faces, and at times, she has heard the children tell their father that they do not want to go with him. In cross-examination though, Ms. Christens acknowledged that her observation was prior to the time of the last trial in 2017. I further lost confidence in Ms. Christens' objectivity when Mr. Cuthbert asked her if she had ever seen the children with him when Ms. Nolis was not present. Ms. Christens answered affirmatively. She said she saw K with her father on a bike but that K "did not seem her happy self." I have no doubt that Ms. Christens was trying to be helpful at trial, but her close relationship with Ms. Nolis combined with her belief in being able to read the children's moods — even at a distance — left me with doubts about her ability to impart any objective evidence.

S. 24(3)(c): Each parent's willingness to support the development and maintenance of the child's relationship with the other person

[169] I find that Mr. Cuthbert is willing to support the development and maintenance of the children's relationship with Ms. Nolis, but the converse is not true. Ms. Nolis is steadfastly opposed to any increase in Ms. Cuthbert's parenting time. I was surprised by her description of Mr. Cuthbert's one-year transition plan to equal parenting time as "aggressive." In fact, I find Mr. Cuthbert's timeframe to achieve equal parenting time too slow. Below, in my order, I propose that the children transition to an equal parenting time arrangement by January 1, 2023.

[170] Mr. Cuthbert simply wants more parenting time to foster his own relationship with the children. With respect to parenting time, I find the following dicta in Fraser v. Fraser, 2016 ONSC 4720, to be apposite to the case before me:

[54] The mother strenuously resists any change to the present schedule. She fears that it would be too disruptive and harmful for the boys to lose the benefits of being in her primary care. The father asks for a residential schedule that has the boys in each household half the time. He has fully addressed Justice McDermot's July 2015 concerns. He has transitioned into a stable and appropriate residence with his new partner. With the distribution of the sale proceeds, he may be able to purchase a residence closer to the boys' school, but if not, his present home is appropriate.

[55] All three boys, particularly G., are well fed in their father's home, and parented in accordance with their developmental needs. There is family activity and downtime amongst the boys' demanding sports schedules. Regular bedtimes are observed.

[56] The father satisfies me in his evidence that he is proficient in all aspects of G.'s care, particularly in monitoring any advance signals of a seizure. He describes the preparation of G.'s food, his personal care, activities, medical needs and developmental needs. There have been no incidents. The boys have thrived during their alternate, extended weekends.

[57] Nonetheless, the mother maintains her generalized concerns. She worries that the homework will not get done. She is not satisfied that the father maintains the same standards of care for G. as she employs. She suggests that the father is hostile to counselling for the boys. She worries about the stress on B. as he tries to live up to his father's expectations.

[58] As set out above, the core of her concerns is a resolute unwillingness to see the father in terms different from how she saw him during the marriage. She is supported in her view of him as an absent and from time-to-time careless caregiver by their former nanny.

[171] I am concerned that if the children do not spend more time with their father now, it will be too late years down the road to foster and improve on that relationship.

S. 24(3)(d): The history of care of the child

[172] There is no doubt that Ms. Nolis considers the maintenance of the status quo in the children's best interests. For reasons already discussed, I do not find that Mr. Cuthbert must demonstrate that a material change in circumstances has occurred since the decision of Justice Goldstein. If I am incorrect on that point, I would find that G's anxiety is less of a concern and would constitute a material change. In any event, I find that the maintenance of the status quo is not in the best interests of the children.

[173] The longevity of an "undisturbed pattern of care" should not be used if the best interests of the child lie elsewhere. Children are very adaptable, and they can adapt quite readily to alterations that occur in access arrangements: Warcop v. Warcop, at para. 116.

[174] I read the OCL's report, which recommended the maintenance of the status quo, as an assessment that puts undue weight on the wishes of the children, in response to G's anxious condition.

[175] However, the evidence at trial did not support a finding that G has anxiety. The last time Ms. Burrows interviewed the children was on July 9, 2020. On cross-examination, she conceded that, due to the pandemic, the children would have had an increased level of anxiety. At the time, the schools had been in lockdown for about 3.5 months and the children were mostly in the care of their mother. Ms. Burrows also conceded that Dr. Noble, the psychologist, was worried about G hearing negative comments about his father from his mother. Overall, I find the OCL's report somewhat caught up in the then COVID-related dynamic that the children had experienced. The weight that the court assigns to the clinical investigator's recommendations depends on the nature and extent of the investigation and the facts upon which the assessor based her recommendations: Ganie v. Ganie, 2015 ONSC 6330, at para. 20. The clinician opted for what she considered a more cautious approach to parenting, which was to maintain the status quo. Having heard from the parties directly, and the witnesses through a mixture of direct and affidavit evidence, I find that the conflict between the parties is likely to be reduced by an equal parenting arrangement. As I previously stated, the parties are capable and loving parents with different parenting styles. The children can benefit from strong relationships with both their mother and father.

[176] My decision on parenting is also influenced by what I consider to be in the long-term best interests of the children. A change in the parenting plan will undoubtedly involve some challenges to the children. However, it would be a legal error to be overly concerned about the short-term disruption rather than what is in the best interests of these children, which I find to be equal parenting time with the parties: A.M. v. C.H., 2018 ONSC 6472, at para. 96, aff’d 2019 ONCA 764, relying on A.(A.) v. A.(S.N.), 2007 BCCA 363, at paras. 26-28.

I. Decision-Making

[177] In Ammar v. Smith, 2021 ONSC 3204, a case involving common-law spouses, Kraft J. described the factors that the court must consider in terms of decision-making:

[81] The question for the Court is whether joint decision-making responsibility for the decisions impacting the children is appropriate. The amendments to the Children's Law Reform Act demonstrate that there remains only one applicable standard: the best interests of the child. The interests of the parents are entirely secondary. They come into play only in terms of their relevance to the best interests of the child. In determining the best interests of a child, the court is to give primary consideration to the child's physical, emotional and psychological safety, security and well being: s.24(2).

[82] The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275, sets out the following principles in determining whether a joint custody order is appropriate: a. There must be evidence of historical communication between the parents and appropriate communication between them. b. Joint custody cannot be ordered in the hope that it will improve communication. c. Just because both parents are fit does not mean that joint custody should be ordered. d. The fact that one parent professes an inability to communicate does not preclude an order for joint custody. e. No matter how detailed the custody order, there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis. f. The younger the child, the more important communication is.

[83] Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child's best interests: see Graham v. Butto, 2008 ONCA 260 and Roy v. Roy, [2006] O.J. No. 1872 (CA).

[84] Courts require evidence that the parties are able to communicate effectively, since joint custody requires that they make long-term decisions together regarding the child. A standard of perfection is not required, and is obviously not achievable: see Grindley v. Grindley, 2012 ONSC 4991 (SCJ). The issue is whether a reasonable measure of communication and cooperation is in place and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis: Warcop v. Warcop.

[85] Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of one parent, that parent should not be able to use the conflict as justification to oppose a joint or shared parenting order. To do so allows an obdurate parent to engineer a result in his or her favour: see Geremia v. Herb.

[86] A mere statement by one party that there is an inability to communicate will not preclude an order for joint custody. The court must carefully consider the parties' past and present parenting relationship as a whole, and not place undue emphasis on their allegations of conflict, or on the conflict existing at the time of trial: see Grindley v. Grindley, supra at para. 211.

[87] Joint custody allows each parent authority to make decisions concerning his or her children. Absent a demonstrated ability by parents to cooperate in making those decisions an order for joint custody has the potential to increase conflict between parents. That potential must be carefully weighed and considered in relation to the specific circumstances of each case. Parental conflict is a significant risk factor for children, particularly when the conflict is long standing and progressive: Antemia v. Divitor, 2019 ONSC 678, at para. 91.

[178] Ms. Nolis acknowledges that, as the decision of Goldstein J. involved a final order of joint custody (now decision-making), the onus is on her to demonstrate a material change in circumstances. She argues that Mr. Cuthbert has used joint custody to block decision-making. She claims the following: Mr. Cuthbert tried to block the name change of the children by opposing the motion to dispense with his consent; he blocked the children's physical exam, which resulted in Dr. Mastrogiacomo terminating her relationship as the children's family physician; and during the COVID "crisis," Mr. Cuthbert continually put her and the children's health at risk.

[179] As discussed above, I find that Ms. Nolis raised a litany of complaints against Mr. Cuthbert to demonstrate his poor parenting. However, I did not agree with Ms. Nolis' assessment. I find that these complaints demonstrate that Ms. Nolis is having difficulty accepting that Mr. Cuthbert has a legitimate role to play in the children's lives and that his parenting choices, which are different than hers, must be respected. With respect to decision-making, I find that Ms. Nolis has exaggerated the degree to which the parties cannot communicate. I am unable to determine whether this is for genuine or strategic reasons, but I find it is likely a combination of both. Yes, this couple has difficulties communicating, but when I review the categories of decision-making — education, medical/health, activities, religion/culture — I do not find that the parties' decision-making is so impaired that it is in the best interests of the children to grant sole decision-making to any one party, or to implement a regime of parallel decision-making.

[180] With respect to education, the teachers who testified did not indicate that the parties were in conflict with any aspect of school or educational instruction. Ms. Nolis was more in touch with the teachers than was Mr. Cuthbert. The parents agreed, at least as of the time of trial, on maintaining the children in French Immersion.

[181] No examples were brought up at trial about significant disagreements over extra-curricular activities. While Mr. Cuthbert would like to focus more on skiing, golfing, or camping, it was not as if this dispute was a significant source of tension. The issue was more about Mr. Cuthbert simply wanting to have more time with the children, regardless of activity.

[182] With respect to health, while there were allegations by Ms. Nolis that Mr. Cuthbert is occasionally serving the children processed or frozen food, it is not as if the parties have fundamentally opposed ideas on nutrition, fitness, and health — or that these alleged differences are affecting the children. With respect to medical decisions, as of the time of trial, both parents agreed as per the OCL report, that G should seek mental health counselling. While Ms. Nolis alleged that Dr. Mastrogiacomo's termination of the relationship was Mr. Cuthbert's fault, as discussed earlier in my Reasons, I do not find that this was a product of the parties' poor communication.

[183] The parties live close to each other and to the school. The parties communicate on OFW and, while some examples of quarrelsome communication were provided, the parties do not appear to disagree on the broad items for their children.

[184] I find that the main source of conflict for the parties is the meagre parenting time given to Mr. Cuthbert. While there is no guarantee, I am optimistic that with a step-up to an equal parenting schedule, and some adjustment, the degree of conflict between the parties will diminish. To be clear, I find that there is already a sufficient degree of agreement between the parties that the joint decision-making arrangement should remain in place. I find that a reasonable measure of communication and cooperation is already in place and is achievable in the future. I am optimistic that the best interests of the child can be ensured on an ongoing basis.

J. Telephone Access

[185] There is no judicial order in place regarding telephone access for the parent who does not have parenting time ("the other parent"). An order regarding telephone access is part of the relief Ms. Nolis is seeking in her response to Mr. Cuthbert's Motion to Change.

[186] Mr. Cuthbert does not think any order is necessary. He believes that the parties and children can work out the situation as it unfolds and that the lack of an order provides the most flexibility. In the alternative, he requests that the court follow the recommendation of the OCL that telephone calls be daily between the children and the other parent, but only on days that the other parent has not had parenting time with the children. The OCL also recommended that telephone access be limited to ten minutes with each child at a specific time (in practice, this appears to be at around 8:30 p.m.).

[187] By contrast, Ms. Nolis seeks an order that the children be able to telephone the other parent daily regardless of whether the other parent started out with the children that day. Ms. Nolis claims that the lack of an order leads to unpredictability. She also claims that daily calls with the children, even when they are in the care of their father, comforts them and "they like to hear from their mom." She submits that just because she may have seen the children in the morning on a transition day, does not mean that the children should not be able to speak to her again in the evening.

[188] I find that, presently, Ms. Nolis' phone call with the children on the Friday night when Mr. Cuthbert's weekend parenting time begins is a source of conflict because it interrupts his parenting time. I also find it telling that Ms. Nolis believes she needs to speak to the children again on the same day that she has said goodbye to the children to "comfort them". This is consistent with my finding that Ms. Nolis effectively sees herself as the primary and only "real" parent in the relationship. I find that, having said goodbye to the children in the morning, there is no identifiable child-centred reason that the other parent must again speak to the children. This is logistically and psychologically disruptive to the children and disproportionately affects Mr. Cuthbert who, to this date, has had far less parenting time with the children. Consistent with the OCL's recommendation, I find that telephone access should be limited to days on which the other parent did not have any parenting time with the children, that the call should be at a specific time agreed upon by the parties (or 8:30 p.m. if the parties cannot agree) and that it be limited to up to ten minutes with each child.

K. Other Concerns

[189] As stated earlier, I find that the combined attendance of both parties at the children's routine sports activities is a source of conflict. The OCL clinician came to the same conclusion. I find that it is in the best interests of the children that only the parent who has the care of the children at the time attend the children's activities, including practices and games. If there is a recital, concert, championship game, or special event where there is an audience, both parties have the right to attend but should notify each other in advance.

L. Order

Parenting Time

[190] I find that it is in the best interests of the children that Mr. Cuthbert's parenting time be expanded as follows starting the week of May 9, 2022:

• From Wednesday after school to drop-off at school on Thursday morning (this would represent an increase of a mid-week overnight).
• Every second weekend from Friday pick-up at school until Sunday 5:00 p.m. drop off (this is the current arrangement).
• The above arrangement would continue until the end of the 2021-22 school year.
• During the months of July and August, the children would reside with each parent on a week about basis.
• Effective the 2022-23 academic school year, Mr. Cuthbert's "every second weekend access" would be extended by an overnight, with the children being dropped off on Monday morning at school.
• Effective January 1, 2023 or so soon thereafter as the Holidays end, the schedule would change so that the children are residing with each parent on an equal basis following a "2/2/5/5" schedule.

Decision-Making

[191] Decision-making will continue to be joint.

Telephone Access

[192] Telephone access to the children shall be limited to days on which the other parent does not have any parenting time with the children. The call should be at 8:30 p.m. (unless the parties agree upon some other time), and it should be limited to up to ten minutes with each child.

Other Points

[193] Only the parent who has the care of the children at the time shall attend the children's activities, including practices and games. If there is a recital, concert, championship game, or special event where there is an audience, both parties have the right to attend but shall notify each other in advance.

[194] All communication between the parties shall be respectful and child focused. Neither party will criticize, demean, or make disparaging comments about the other parent in the children's presence. The parties shall also use their best efforts to ensure that the children are not exposed to other persons criticizing, demeaning, or making disparaging comments about the other parent to the children, while the children are in their care.

[195] Within seven days of the release of these Reasons, the parties shall provide me with a Draft Order approved as to form and content, and a clean copy of the Draft Order in WORD format for my signature.

M. Costs

[196] If the parties cannot agree on costs, they shall make written submissions as to costs within 15 days of the release of these Reasons. Such written submissions shall not exceed three double-spaced pages, exclusive of Costs Outlines, Bills of Costs, Offers to Settle. Authorities are to be hyperlinked or forwarded to me via my judicial assistant. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

[197] The Draft Order and Costs Submissions shall be sent via email to the Family Law Judicial Assistant Annette.Elek@ontario.ca.

Pinto J. Released: May 3, 2022