CITATION: J.T. v. E.J., 2022 ONSC 4956

COURT FILE NO. FC 94/10

DATE: August 30, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

J.T.

Applicant

– and –

E.J.

Respondent

The Applicant, self-represented

Thomas J. MacLennan, for the Respondent

HEARD: August 26, 2022

The Honourable Madam Justice Deborah L. Chappel

AMENDED REASONS FOR JUDGMENT

PART 1: INTRODUCTION

[1] These are my reasons for Judgment further to a motion brought by the Respondent father E.J. (hereinafter referred to as either “the Respondent” or “the father”), seeking urgent relief in relation to the one child of the parties’ relationship, a girl P.A.J., who is 13 years of age. As a preliminary matter, the father requests an order for leave to proceed with this motion prior to a case conference. In addition, he requests a temporary order requiring the Applicant mother J.T. (referred to in these Reasons as either “the Applicant” or “the mother”) to return P.A.J. to his care forthwith, and for primary residence and sole decision-making responsibility. With respect to parenting time, he supports a continuation of the existing court-ordered terms respecting the Applicant’s parenting time. Those terms are set out in a temporary order of Brown J. dated December 15, 2016, which grants the mother parenting time with P.A.J. on alternate weekends from Friday until Sunday, and such other times as mutually agreed upon and arranged between the parties. The Applicant did not bring a cross motion, but at the hearing of the motion she requested a temporary order that P.A.J. remain in her primary care, and that this case be referred to the Office of the Children’s Lawyer so that the court can receive independent evidence respecting the child’s views and preferences.

[2] The issues to be determined are as follows:

1. Should the names of the parties, the child and other individuals be initialized in these Reasons for Judgment?

2. Does this court have jurisdiction to deal with this motion?

3. Have the parties satisfied the test set out in Rule 14(4.2) of the Family Law Rules, O. Reg. 114/99, as amended for proceeding with this motion prior to a case conference?

4. Have there been any material changes in circumstances since December 15, 2016 that affect or are likely to affect P.A.J.’s best interests?

5. If the answer to question #4 is yes, what temporary decision-making responsibility, residence and parenting time terms are in P.A.J.’s best interests at this time?

6. Is it appropriate to grant a police enforcement clause?

7. Should a referral be made to the Office of the Children’s Lawyer?

[3] For the reasons below, I have decided as follows:

1. The names of the parties, the child and other individuals other than professionals should be initialized in these Reasons for Judgment.

2. The test set out in Rule 14(4.2) of the Family Law Rules for proceeding with this motion prior to a case conference has been met.

3. There have been material changes in circumstances since December 2016 that satisfy the threshold test for varying the existing order dated December 15, 2016.

4. It is in P.A.J.’s best interests to order a temporary variation of paragraph 1(a) of the December 15, 2016 order, which grants the parties joint custody (now “decision-making responsibility”) of the child on a final basis. P.A.J.’s best interests require that the Respondent be granted sole decision-making responsibility on a temporary basis pending further order.

5. It is in P.A.J.’s best interests to be returned forthwith to the Respondent’s care and to reside primarily with the Respondent.

6. The Applicant’s parenting time should be suspended until she and the Respondent complete at least 3 joint family counselling sessions with a counsellor of the Respondent’s choice to discuss the child’s needs, the events that led to this emergency motion, and a plan for protecting the child from further conflict and unauthorized withholding from the Respondent in the future. These sessions may include the child, in the discretion of the counsellor. Upon the completion of these sessions, the Applicant’s parenting time will resume with alternate weekends, from Friday at 6:00 p.m. until Sunday evening at 7:00 p.m., and such other times as mutually agreed upon and arranged between the parties, taking into consideration the child’s views and preferences, unless otherwise ordered by the court.

7. A referral of this matter to the Office of the Children’s Lawyer is premature at this time. This request may be renewed upon the court receiving further information from any professionals involved with P.A.J. who may have information about her views and preferences in relation to the parenting issues.

PART 2: DECISION TO INITIALIZE NAMES

I. THE OPEN COURTS PRINCIPLE

[4] As a preliminary matter, I have decided to initialize the names of the parties, the child who is the subject of these proceedings and all other individuals other than professionals in these Reasons for Judgment. It is necessary to provide Reasons for my decision to do so. There has been a markedly noticeable trend in recent years of judges initializing names in the majority of Family Law cases involving children without explaining the legal rationale for doing so. This is understandable, having regard for the importance of protecting the privacy interests of children. However, it is critical that we as judges always provide reasons for initializing names in Reasons for Judgment, having regard for the open courts principle. This principle mandates that unless otherwise permitted or ordered, all court proceedings, including all material and information forming part of a court’s records, must presumptively remain open and available to the public, including the free press (Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 (S.C.C.); A.B. (Litigation Guardian of) v. Bragg Communication, 2012 SCC 46 (S.C.C.) (“Bragg”), at para. 11; Canadian Broadcasting Corporation v. Manitoba, 2021 SCC 33 (S.C.C.), at para. 83). Any judicial action that limits access to a court proceeding or information in a court file is a restriction on the presumptive operation of the open courts principle. This includes, without limitation, publication bans, sealing orders, directions and orders to limit access to a court file, limiting public access to court proceedings, orders redacting information from decisions or court files and decisions to initialize the names of parties, children and other individuals in court endorsements, Reasons for Judgment and orders (Sherman Estate v. Donovan, 2021 SCC 25 (S.C.C.), at para. 3; re initialization specifically, see Bragg; A.A. v. B.B., 2021 ONCA 147 (C.A.), at para. 52).

[5] The open courts principle is deeply embedded in the common law, and it has become one of the hallmarks of a free and democratic society (Re Vancouver Sun, 2004 SCC 43, [2004] 2 S.C.R. 332 (S.C.C.), at para. 23; Sherman Estate, at paras. 1, 30; Canadian Broadcasting Corp. v. Manitoba, at para. 78; G.S. and. K.S. v. Metroland Media Group et al., 2020 ONSC 5227 (S.C.J.), at para. 26). This is because the courts play an important role in any democratic society, and hence they must be open to public scrutiny and criticism of their operations (Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 (S.C.C), at para. 16; Canadian Broadcasting Corp. v. New Brunswick (Attorney General) (“New Brunswick”), [1996] 3 S.C.R. 480 (S.C.C.), at paras. 20 and 22; G.S. and. K.S., at para. 27).

[6] The open courts principle is also an important constitutional tenet that forms part of the right of freedom of expression guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms, s 7, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (“the Charter”). Court openness and freedom of expression are inextricably linked, since openness is essential to the public’s ability to obtain information and to discuss and advance opinions and criticisms of court practices, proceedings and decisions (Edmonton Journal, at para. 24; New Brunswick, at para. 23; Sherman Estate, at para. 1). Section 2(b) of the Charter protects not only the freedom to express ideas and opinions about the operation of the courts, but also the right of the free press and members of the public generally to obtain information about the courts in the first place (Edmonton Journal; New Brunswick, at para. 23; Sherman Estate, at para. 30). The Supreme Court of Canada has emphasized “the equally important aspect of freedom of expression that protects listeners as well as speakers and ensures that this right to information about the courts is real and not illusory” (Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 71254 (S.C.C.), at p. 767; New Brunswick, at para. 23; Edmonton Journal, at para. 85).

[7] The open courts principle, sustained by freedom of expression, is one of the foundations of a free press, given that access to courts is fundamental to newsgathering (Sherman Estate, at para. 39). Measures that restrict the ability of the press to access court hearings and information in court files, and to obtain information about the courts generally, impinge on the guarantee of freedom of expression, since they undermine the freedom of listeners to obtain information that fosters public criticism of or confidence in the courts (New Brunswick, at para. 26; G.S. and. K.S., at paras. 28-29). In Edmonton Journal, Wilson J. summarized that the open courts principle is rooted in the following important needs and objectives:

1. To ensure a judiciary and juries that behave fairly and are sensitive to the values espoused by society;

2. To promote a shared sense that our courts operate with integrity and dispense justice; and

3. To provide an ongoing opportunity for the community to learn how the justice system operates and how the law being applied daily in the courts affects them (at para. 22).

[8] For all of these reasons, the open courts principle is considered to be “the very soul of justice,” because it helps to guarantee that justice is administered in a fair, accountable, independent, impartial and non-arbitrary manner (Sierra; New Brunswick, at para. 22; Sherman Estate, at paras. 29, 30, 37). Given the presumptive operation of the open courts principle, the burden of justifying any restrictions on court openness rests on the person or entity seeking to do so (Vancouver Sun, at para. 25).

[9] Given the fundamental importance of the open courts principle, the court must give reasons when it makes any order or takes any other action that deviates from the presumption in favour of court openness. Permitting the courts to deviate from the open court principle without giving reasons for doing so runs a serious risk that the principle will be eroded over time, with a corresponding risk to our democracy and the constitutional right to freedom of expression.

II. THE GENERAL TEST FOR RESTRICTING THE OPEN COURTS PRINCIPLE

[10] It flows from these general principles that a request to restrict openness of the court process or any court file is essentially a request to curtail the Charter guarantee of freedom of expression in order to preserve or promote another important interest engaged by the proceedings (Sierra; Sherman Estate). Notwithstanding the importance of the open courts principle, courts have the discretion to place restrictions on its operation in exceptional circumstances where important competing interests justify doing so. Exceptions to court openness are recognized sparingly, “and with an eye to preserving the strong presumption that justice should proceed in public view” (Sherman Estate, at para. 30; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 (S.C.C.), at para. 878; Sierra, at para. 56).

[11] As a starting point, before taking any action that restricts the open court principle, the court must determine whether there are any legislative enactments permitting it to do so. If there are, the court must comply with the requirements of the relevant provisions and the caselaw that has developed around them (Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41 (S.C.C.), at paras. 7, 22; Sherman Estate, at para. 38).

[12] Apart from any legislative authority, the Supreme Court of Canada has developed three core prerequisites for any discretionary order or other judicial action that limits court openness in Dagenais, Sierra and Sherman Estate (hereinafter referred to as the “Sierra/Sherman Estate test”). These three preconditions as set out in Sherman Estate are as follows:

1. First, the court must be satisfied that court openness poses a serious risk to an important public interest;

2. Second, the court must determine that the order or measure is necessary to prevent this serious risk to the identified interest because alternative measures less constraining on court openness will not prevent this risk; and

3. Third, as a matter of proportionality, the court must find that the benefits of the order or measure outweigh its negative effects.

(Sierra; Sherman Estate, at para. 38)

[13] All three parts of this test must be satisfied for the court to approve measures that limit court openness. This three-stage test applies to all discretionary limits on court openness and in all lines of work of the courts, including Family Law (Sherman Estate, at para. 38; R.F. v. J.W., 2021 ONCA 528 (C.A.), footnotes; S.E.L. v. O.V.P., 2022 ONSC 1390 (S.C.J.)). The Sierra/Sherman Estate test is stringent, so as to ensure that discretionary orders or measures are not subject to a lower standard than a legislative enactment limiting court openness would be (Sherman Estate, at para. 40).

[14] The courts have articulated additional principles with respect to each stage of the Sierra/Sherman Estate test for justifying constraints on court openness, as follows:

Stage One:

[15] Focussing on the first stage, this part of the analysis in fact involves two sub-inquiries, specifically:

1. First, the court must be satisfied that there is an important competing public interest at play in the case before it; and

2. Second, the court must be satisfied that the open court principle actually presents a serious risk to that interest on the totality of the circumstances in the case at hand.

[16] There is not a closed list of important public interests for the purposes of the first part of the Sierra/Sherman Estate test. However, the court must be “cautious and alive to the fundamental importance of the open courts rule even at the earliest stage when they are identifying important public interests” (Sherman Estate, at para. 42; Sierra, at para. 56). Determining what constitutes an important public interest at stage 1 of the test may be carried out “in the abstract at the level of general principles that extend beyond the parties to the particular dispute” (Sherman Estate, at para. 42; Sierra, at para. 55).

[17] The question of whether the important public interest in question is at “serious risk” due to the open court principle is a fact-based finding that must be made in context. In other words, notwithstanding the identification of an important public interest at play, the court needs to determine whether that interest is in fact at risk due to court openness on the particular facts of the case under consideration (Sherman Estate, at para. 42). While clear evidence of a direct harmful consequence to the important public interest at stake is relevant at this stage of the analysis, it is not necessary; “courts may also conclude that there is objectively discernable harm” (Bragg, at para. 15; S.E.L. v. O.V.P., at para. 35). Abella J. held in Bragg that in the absence of scientific or empirical evidence in support of the risk, “the court can find harm by applying reason and logic” (at para. 16; see also R.J.R.-Macdonald Inc. v. Canada (Attorney General), [1955] 3 S.C.R. 199 (S.C.C.), at para. 72; Thomson Newspapers Co. v. Canada (Attorney General), [1988] 1 S.C.R. 877 (S.C.C.), at para. 91).

Stage 2:

[18] The second stage of the Sierra/Sherman Estate test requires the court to consider whether alternative measures that are less constraining on court openness would likely be sufficient to prevent the risk to the important public interest at stake. If there are other measures that impinge less on openness and can just as effectively protect the interest engaged, the proposed restriction is unjustified (Sherman Estate; Bragg, at para. 11). Where the court concludes that the order requested is the only one that can reasonably mitigate the risk, it must also specifically tailor that order in such a way as to restrict court openness as little as possible (Sierra, at para. 57; Sherman Estate, at para. 104; Vancouver Sun, at para. 30).

Stage 3:

[19] At the final stage of the test, the court must be satisfied that the benefits of the order or other proposed measure that limits court openness outweigh the harmful effects of the order, including the negative impact on the open courts principle (Sierra, at para. 53; Sherman Estate, at para. 106). In carrying out this balancing inquiry, the court must consider whether the information that the order or other measure seeks to protect from public view is peripheral or central to the judicial process. If the information is central to the case, the interest in ensuring that important and legally relevant information be aired may prevail. However, the outcome of the balancing process at stage 3 will ultimately depend on the unique facts of each case (Sherman Estate, at para. 106).

III. THE APPLICATION OF THE SIERRA/SHERMAN ESTATE TEST WHERE PRIVACY INTERESTS ARE AT STAKE

A. General Considerations

[20] The Supreme Court of Canada has held that protecting the privacy interests of parties and others impacted by the operation of the open courts principle may be an important public interest for the purposes of the first part of the Sierra/Sherman Estate test in certain circumstances. The rationale for this approach rests with the court’s recognition over many years and across various areas of jurisprudence that the protection of privacy is necessary to the preservation of a free and democratic society, and that it is worthy of constitutional protection (R. v. Dyment, [1988] 2 S.C.R. 417 (S.C.C.) at pp. 427-428; R. v. Osolin, [1993] 4 S.C.R. 595 (S.C.C.), per L’Heureux-Dubé, dissenting but not on this point; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 (S.C.C.), at para. 124; Sherman Estate, at para. 50; Canadian Broadcasting Corp. v. Manitoba, at para. 78). The Supreme Court of Canada has held that providing individuals with some control over their information is “intimately connected to individual autonomy, dignity and privacy, self-evidently significant social values” (Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62 (S.C.C.), at para. 24; Sherman Estate, at para. 50). In Sherman Estate, the court held that privacy is so fundamentally important to democracy that it has acquired “quasi-constitutional status” (at para. 51).

[21] Against the backdrop of these important principles respecting privacy, the Supreme Court of Canada held in Sherman Estate that in order to preserve the presumption in favour of open courts, some degree of privacy loss for the parties and other individuals affected by litigation is inevitable. However, there are some circumstances where court openness may pose a serious risk to an aspect of privacy that evinces an important public interest (see also Canadian Broadcasting Corp. v. Manitoba, at para. 78). The court held the protection of a person’s private information will rise to the level of an important public interest for the purposes of Part 1 of the test for restricting court openness where the threatened loss of control over the personal information goes beyond a mere source of discomfort and may result in an affront to the person’s dignity (Sherman Estate, at paras. 33, 84). The court explained that “[d]ignity in this sense is a related but narrower concern than privacy generally; it transcends the interests of the individual and, like other important public interests, is a matter that concerns the society at large” (at para. 33). The court held that a person’s individual dignity will prima facie be considered to be at serious risk for the purposes of the second branch of the Sierra/Sherman Estate test where the information that would be disseminated by the operation of the open court principle is sufficiently sensitive that it strikes at the “biographical core” of the affected individual” (at para. 91). To satisfy this threshold, the information in question must involve highly personal, intimate and sensitive details about the person’s basic identity, their lifestyle or their experiences (at paras. 33, 34, 73-77). The court stressed that limits to court openness cannot be permitted based solely on the fact that dissemination of the information could cause inconvenience, discomfort, disadvantage or embarrassment (at paras. 7, 33, 56, 63). It emphasized that “[d]ignity transcends personal inconvenience by reason of the highly sensitive nature of the information that may be revealed” (at para. 75). The court declined to provide an exhaustive catalogue of the types of sensitive personal information that, if exposed, could give rise to a serious risk of dignity being undermined, stating that the question in every case is “whether the information reveals something intimate and personal about the individual, their lifestyle or their experiences” (at para. 77). However, it provided some examples that may justify constraints on court openness, including information about stigmatized medical conditions, sexual orientation, or subjection to sexual assault or harassment (at para. 77).

[22] The court held in Sherman Estate that if the court accepts that the information in question is sufficiently intimate and sensitive that it strikes to the affected person’s biographical core, it must then also determine whether court openness actually poses a serious risk to the person’s dignity interest in light of the totality of the circumstances in the particular case under consideration (Sherman Estate, at para. 79; see also Canadian Broadcasting Corp. v. Manitoba, at para. 79). In Canadian Broadcasting Corp. v. Manitoba, the court reiterated the important principle established in Bragg that “[a] serious risk need not be supported by direct evidence but may be reasonably inferred on the basis of available circumstantial facts (Canadian Broadcasting Corp. v. Manitoba, at para. 79). One factor to consider at the “serious risk” stage of the analysis is the extent to which the information would be disseminated without a restriction on the open court principle. In addressing this issue, the court should be sensitive to the information technology context, which has increased the ease with which information can be communicated and cross-referenced (Sherman Estate, at para. 80). The court should also at this stage of the inquiry consider the extent to which the information in question is already in the public domain. As the court stated in Sherman Estate, “[i]f court openness will simply make available what is already broadly and easily accessible, it will be difficult to show that revealing the information in open court will actually result in a meaningful loss of that aspect of privacy relating to the dignity interest” (at para. 81). However, the fact that the information is already available to some extent in the public sphere is not determinative, since court openness may allow for even broader dissemination of and easier access to the information (at para. 81).

B. Special Considerations Where the Privacy Interests of Children Are at Stake

[23] In Sherman Estate, the court specifically addressed whether special considerations come into play in applying the test for restricting court openness where the individuals potentially affected by the public airing of the information in question are minors. It concluded that while the law recognizes that minors are especially vulnerable to intrusions upon their privacy, “the mere fact that information concerns minors does not displace the generally applicable analysis” (at para. 92; see also Bragg, at para.11). However, the court should take into account the increased vulnerability of minors in determining whether the threatened loss of control over the personal information in question would result in an affront to their sense of dignity and integrity (at para. 92).

[24] In Bragg, Abella J. emphasized that both Canadian and international law have long recognized the inherent vulnerability of children, and that this has prompted the protection of young people’s privacy across all areas of the law based on age, not the sensitivity of the particular child in question. Accordingly, the law attributes heightened vulnerability to children based on their age, without the need to prove the child’s particular vulnerability on the facts of the case.

[25] The Supreme Court of Canada has recognized that Canadian law affords children greater privacy rights than similarly situated adults in a number of contexts, and that this reflects a general societal consensus about the value of protecting children’s privacy interests (R. v. Jarvis, 2019 SCC 10 (S.C.C.). Furthermore, the Ontario Court of Appeal emphasized in Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner, 2018 ONCA 559 (C.A.), at para 58, leave to appeal to the S.C.C. refused 2019 CarswellOnt 4698 (S.C.C.)) that “[w]henever a child is affected by a court or government process, the primary consideration must be the child’s best interests.” It noted that this principle is enshrined in Article 3.1 of the Convention on the Rights of the Child. It held that in addressing the privacy rights of children, the courts are also required by Article 40(2)(b)(vii) to the Convention to fully respect the privacy rights of children at all stages of court proceedings (at para. 75).

IV. RESTRICTIONS ON THE OPEN COURTS PRINCIPLE IN THE FAMILY LAW CONTEXT

A. General Comments

[26] There are several legislative provisions that courts may rely on in the Family Law context to limit court openness. However, the courts have held that even in the case of discretionary legislative provisions permitting restrictions on openness, the court must consider not only the terms of the legislation, but also the general constitutional principles that have developed regarding restrictions on the open courts principle.

[27] Family Law cases by their very nature typically involve highly intimate, sensitive and potentially embarrassing information about the parties and the children involved and other individuals in many cases. As a result, these cases often give rise to conflicting concerns regarding the preservation of privacy for the parties and other affected individuals on the one hand, and the open courts principle on the other.

[28] The privacy interests of children arise on a regular basis in Family Law cases. These interests must be of particular concern for the courts, because they have not voluntarily chosen to risk having their personal information publicly aired through the court process, they are not typically before the court to protect their personal information from scrutiny, and they are particularly vulnerable (Bragg; Sherman Estate). The principles discussed above about the law’s special protection of children’s privacy rights, and the obligation of the courts to safeguard the best interest of children, should therefore form part of the analysis of any requests to restrict the operation of the open courts principle for the sake of children involved (S.E.L. v. O.V.P.).

B. Section 70 of the Children’s Law Reform Act, and Initializing Names

[29] In parenting proceedings that are governed by the CLRA, such as this one, the court may rely on section 70 of the Act to place limits on public access to the court file, or on the publication of information that has the effect of identifying any person referred to in any document in the court file. Section 70 provides as follows:

Confidentiality

70 (1) Where a proceeding includes an application under this Part, the court shall consider whether it is appropriate to order,

(a) that access to all or part of the court file be limited to,

(i) the court and authorized court employees,

(ii) the parties and their counsel,

(iii) counsel, if any, representing the child who is the subject of the application, and

(iv) any other person that the court may specify; or

(b) that no person shall publish or make public information that has the effect of identifying any person referred to in any document relating to the application that appears in the court file. 2009, c. 11, s. 18.

Considerations

(2) In determining whether to make an order under subsection (1), the court shall consider,

(a) the nature and sensitivity of the information contained in the documents relating to the application under this Part that appear in the court file; and

(b) whether not making the order could cause physical, mental or emotional harm to any person referred to in those documents. 2009, c. 11, s. 18.

Order on application

(3) Any interested person may make an application for an order under subsection (1). 2009, c. 11, s. 18.

Varying or discharging order

(4) The court may vary or discharge an order made under subsection (1). 2009, c. 11, s. 18.

[30] The courts have held that the general constitutional principles outlined above respecting restrictions on the open courts principle must guide the exercise of the court’s discretion pursuant to section 70 of the CLRA (Foulidis v. Foulidis, 2016 ONSC 6732 (S.C.J.); M.M. v. N.M., 2018 ONSC 6939 (S.C.J.); Danso v. Bartley, 2018 ONSC 4929 (S.C.J.); S.M. v. C.T., 2020 ONSC 4819 (S.C.J.); M.D. v. T.K. 2021 ONSC 8514 (S.C.J.); S.E.L. v. O.V.P.).

[31] Section 70(1)(b) provides the court with the authority to initialize the names of parties, children and other individuals in Reasons for Judgment (S.M. v. C.T.; M.D. v. T.K.). In the civil law context, the Supreme Court of Canada has noted that initializing a case represents a very minimal intrusion upon the open courts principle, since it does not prevent the media from being present for hearings and does not restrict the reporting about hearings and the facts of the case (Bragg, at para. 28). The Ontario Court of Appeal has supported the initialization of the names of parties, children and other individuals referred to in Family Court decisions in circumstances where the information in question is highly sensitive, personal and intimate in nature, and its dissemination would lead to an affront to the dignity of the affected individuals (R.F. v. J.W., at footnote 1). Many other courts have also concluded in the Family Law context that initializing names is a justified limitation on the open courts principle based on the highly sensitive nature of the information involved, the minimal impairment that initializing entails for court openness, and the fact that initialization would not impair or adversely affect public comment or debate on the issues arising in the case (W.(W.) v. X.(X.), 2013 ONSC 929 (S.C.J.); R.(M.R.) v. M.(J.), 2017 ONSC 2655 (S.C.J.), per Fryer J.; A.P. v. L.K., 2019 ONSC 4010 per Akbarali J.; P.D. v. D.C., 2021 ONSC 2146 (S.C.J.) per Lemon J.; S.M. v. C.T.; M.D. v. T.K..; M.(O.) v. K.(S.), 2021 ONSC 569 (S.C.J.), per MacLeod J.; J.L. v. D.L., 2022 ONSC 1004 (S.C.J.), per Engelking J.).

[32] In cases where the privacy interests of concern relate to children, the courts have also permitted initialization of the parties’ names where there is concern that publishing their names will in turn reveal the identity of the children and result in the public airing of the children’s information that could lead to an affront to the children’s dignity (A.P. v. L.K., at paras. 55-59; M.(O.) v. K.(S.)).

V. PRACTICE CONSIDERATIONS IN DEALING WITH PROPOSED RESTRICTIONS TO THE OPEN COURTS PRINCIPLES

[33] Given the critical importance of the open court principle and the role of the media in informing the public about the courts’ activities, the court should always consider whether prior notice should be given to the parties, the media and other directly affected individuals before making any order or taking any measure that would limit court openness, so that they may be given an opportunity to make submissions on the issue (Canadian Broadcasting Corp. v. Manitoba, at para. 51; Jane Doe v. Manitoba, 2005 MBCA 57 (C.A.), at para. 24; M.(A). v. Toronto Police Service, 2015 ONSC 5684 (Div. Ct.), at para. 6). While it may generally be appropriate to give prior notice to the parties, the press and other individuals directly affected by an order or measure that would limit court openness, the court hearing the matter ultimately has the discretion to decide whether or not such notice is required, and if it is, when the notice should be given (Canadian Broadcasting Corp. v. Manitoba, at para. 51; Dagenais, at p. 869; M.(A.) v. Toronto Police Service, at para. 51). Advance notice is not necessarily required before making an order or taking any measure that limits the operation of the open court principle. The circumstances in which orders limiting court openness are made vary, and the courts have the necessary discretionary authority with respect to notice issues to ensure that justice is served in each individual case (Canadian Broadcasting Corp. v. Manitoba, at para. 51; Dagenais, at p. 869; M.(A.) v. Toronto Police Service, at para. 51).

[34] The court should not assume that all parties or other affected individuals in a case will want restrictions placed on court openness, including the initialization of endorsements, orders and Reasons, on the basis of privacy or other important public interests. In Edmonton Journal, Wilson J. specifically noted that when privacy interests come up against the open court principle in the Family Law context, the court cannot simply jump to the conclusion that all parties will want to shield the information in question from public view. In fact, it may be the case that one or more parties or other affected individuals may have a strong interest in receiving public vindication and community support.

[35] Part VI, section F of the Consolidated Provincial Practice Direction of the Superior Court of Justice (“the Practice Direction”) addresses issues relating to notice to the press when discretionary orders limiting the open court principle are requested or being considered by the court. The pertinent aspects of the Practice Direction are as follows:

1. It applies to all applications or motions for “discretionary publication bans” other than those that either operate automatically by virtue of statute or that a statute provides are mandatory on request. An order directing that the names of parties, children and other affected individuals be initialized in orders, endorsements and Reasons for Judgment is a discretionary ban on the publication of some of the information respecting the file, and this section therefore applies to such orders.

2. Section 109 stipulates that unless otherwise directed by the court, any person seeking a discretionary order restricting publication of any Superior Court proceeding must serve and file a notice of motion or application and any supporting materials.

3. Section 110 provides that unless otherwise directed by the court, the requesting party must provide notice to the media of the motion/application, using the procedure set out in Part B, section F.

4. Specifically, the requesting party must complete and submit a Notice of Request for Publication Ban form on the Superior Court of Justice website.

5. The Notice will then be sent electronically to members of the media who have subscribed to receive notice of all publication ban applications/motions in the court.

6. A formal notice of motion or application and formal notice to the press are not mandatory; the court may direct that they are not required. However, if it decides that notice to the press is not necessary, it should give reasons.

[36] Part VI, section F of the Practice Direction reflects the Supreme Court of Canada caselaw that establishes that the court retains discretion to determine whether notice to the press is required, and if so, the timing of such notice. For Family Law cases in which the court dispensed with notice to the press, see P.(B.C.) v. P.(A.R.), 2016 ONSC 4518 (S.C.J.), per Kiteley J., R.(M.R.) v. M.(J.) and S.E.L. v. O.V.P.

[37] Having regard for the importance of the open court principle, the court should give reasons if it decides that notice to the parties, affected individuals or the press is not required, or that advance notice was not necessary but that later notice is required. If the court makes an order or takes any measure that restricts court openness without advance notice, but determines that notice to the parties, the press or any other person should be given after the fact, it should give directions regarding notice, indicate that the order or measure taken is subject to rescission or variation after hearing submissions, and set a deadline for requesting a hearing to make submissions on the issue, subject to issues respecting standing to do so. The court does not lose its jurisdiction in these circumstances to review, vacate or vary the order on the basis of the doctrine of functus officio (Canadian Broadcasting Corp. v. Manitoba).

VI. ANALYSIS OF ISSUE #1: SHOULD NAMES BE INITIALIZED IN THIS CASE?

[38] Applying the following principles to the facts of this case, I conclude that it is appropriate to initialize the names of the parties, the child P.A.J. and the names of all other individuals other than professionals in these Reasons for Judgment. My reasons for doing so are as follows:

1. These Reasons for Judgment include highly sensitive information about the child P.A.J., including information about her history of social, educational and psychological difficulties, her sexual identity, the significant challenges that she has experienced since revealing her sexual identity and her family history.

2. The Reasons also include highly personal information about communications between P.A.J. and her mother, and her involvement in the events that led to this emergency motion.

3. I am satisfied that the highly sensitive private information about P.A.J. strikes to the child’s personal biographical core, and that publishing these Reasons for Judgment without initializing her name and the names of other individuals closely associated with her would in fact pose a serious risk to her dignity interest.

4. P.A.J. is a highly vulnerable child having regard for the psychological and other challenges that she has experienced in her life, and the protection of her privacy interests is therefore a pressing concern for the court. Her best interests require that the court safeguard her against any emotional distress that could result from the publication of her private information.

5. There are in my view no alternative measures that are less constraining on court openness that would likely be sufficient to prevent the risk to P.A.J.’s privacy interests.

6. I am satisfied that it is necessary to initialize the names of the parties and all other individuals closely associated with P.A.J. because failing to do so would have the domino effect of P.A.J. being identified as well, resulting in the disclosure of her sensitive private information.

7. I am satisfied that the benefits of initializing names in this case far outweigh any harmful effects, including the negative impact on the open courts principle. Initializing names in this case is a minimal intrusion upon the open courts principle, and I am satisfied that it will not impair or adversely affect public comment or debate on the issues arising in the case.

8. I conclude that it is appropriate to make the decision to initialize without hearing submissions in advance from the parties. This matter came before me on a very busy motions list three business days ago, and it did not become apparent to me until preparing these Reasons that initializing would be appropriate. This matter is urgent, and in my view, there is simply insufficient time to invite the parties back to hear submissions on the issue. In addition, I note that the parties are free to seek a variation of my order on this issue pursuant to section 70(4) of the CLRA.

9. I do not consider it necessary on the facts of this case to give notice to the media before initializing names. The urgency of this matter makes notice to the press impractical, and in any event, initialization is a minimal impairment on openness which will not in my view impact in any material way on public comment or debate on the issues. Again, there is a right pursuant to section 70(4) of the CLRA to seek a variation of my decision, and this right extends to representatives of the media.

PART 3: BACKGROUND AND HISTORY OF COURT PROCEEDINGS

[39] The Applicant and Respondent had an “on again/off again” relationship from 2008 until 2009. They never cohabited. P.A.J. is the only child of their relationship. The Applicant has an older 23 year old child, who I will refer to as “J,” from a previous relationship. The Respondent father also has another child from a previous relationship, who I will refer to as “E.” The child E is two years older than P.A.J.

[40] P.A.J. was born in August 2009, and she was in the primary care of the mother following her birth. However, the father was an involved parent from the beginning and had regular parenting time with P.A.J. The mother commenced an application in this court in January 2010. On February 10, 2011, Pazaratz J. made a final order addressing the parenting and support issues on consent of the parties, pursuant to Minutes of Settlement. The mother was granted primary residence and sole custody of P.A.J. The father was granted the right to contact the child’s doctors, teachers and health providers directly to obtain information in relation to the child. He was also accorded access (now “parenting time”) to P.A.J. commencing with alternate Saturdays from 10:00 a.m. until 6:000 p.m. at the mother’s residence, and progressing to alternate weekends from Friday at 6:00 p.m. until Sunday at 7:00 p.m. In addition, he was granted access at such other times as agreed upon by the parties. Finally, the Respondent was ordered to pay child support to the Applicant for P.A.J. in the amount of $265.00 per month.

[41] The parties agreed to transfer primary care of P.A.J. to the father in October 2016. The father states that this occurred following a series of events that caused him to have serious concerns about the child’s safety and wellbeing in the mother’s home. The Applicant did not dispute his version of these events in her affidavit evidence. The Respondent claims that in September 2016, the Respondent returned home from a vacation and discovered that P.A.J. had sustained a traumatic blow to her right eye which had caused the eye to turn inward. This injury has been permanent in nature, and P.A.J. requires corrective lenses, without which she would be blind in her right eye. P.A.J. also required “patching,” which is a type of physiotherapy, for her healthy eye for three years to build the strength of the injured eye, but that therapy failed. The mother never explained the cause of this injury, and she failed to address this issue in the affidavit that she filed in connection with this motion. In addition to this concern, the Respondent states that he received a call from P.A.J.’s school in October 2016, and was asked to pick the child up because she had sustained marks and cuts to her body. There were also concerns at the time that P.A.J. had been regularly coming to school without a lunch. The mother’s only explanation for the marks and cuts at the time was that she had left the child with her cousin, and “something” had happened, the details of which she did not know. Finally, later in October 2016, a fight erupted between the mother and her older daughter J. in the home, while P.A.J. was present. This fight developed because the mother had left P.A.J. in the care of J., and she had returned home to find J. completely intoxicated. The police were involved as a result of the conflict between the Applicant and J. The Respondent picked P.A.J. up the following day, and the Applicant agreed soon afterward to the child remaining with the Respondent because she could no longer rely on J. to help her with child-care. P.A.J. remained in the primary care of her father after that point, with the consent of her mother.

[42] Shortly after these events, the Respondent commenced a Motion to Change Final Order in this court and the parties attended mediation in Hamilton. They reached a mediated agreement respecting the parenting and child support issues pertaining to P.A.J. On December 15, 2016, they obtained an order from Brown J. in this court in accordance with the terms of their agreement. The important terms of the December 15, 2016 order for the purposes of this motion were as follows:

1. On a final basis, the parties were granted joint custody of P.A.J.

2. On a final basis, the Respondent’s obligation to pay the Applicant child support for P.A.J. was terminated.

3. On a temporary basis, the Respondent was granted primary residence of the child.

4. On a temporary basis, the Applicant was granted parenting time with P.A.J. on alternate weekends, from Friday until Sunday, and at such other times as mutually agreed upon and arranged between the parties. The parties were to share the transportation for the purposes of this parenting time.

5. In addition, on a temporary basis, the Applicant was relieved of paying child support to the Respondent, based on her minimal income at the time. However, the Applicant was required to produce updated income disclosure by June 30th each year, and if there were increases in her income, changes regarding her child support obligation were to take effect July 1st each year (paragraph 7).

[43] The parties subsequently arranged that parenting time exchanges for the Applicant’s visits would occur at Union Station in Toronto.

[44] The parties did not return to court after December 15, 2016 to finalize the parenting time and child support arrangements respecting P.A.J. However, the Motion to Change Final Order was never administratively dismissed. Accordingly, both the final and temporary terms of the December 15, 2016 order remain in full force and effect.

[45] P.A.J. remained in the primary care of her father, and they have been living in Toronto since 2016. The Respondent has maintained the same residence in Toronto since 2010, and he has steady employment as a plumber, estimator and project manager with a plumbing company. As I will discuss in further detail below, the Respondent and P.A.J. have had a loving relationship, and the Respondent has carried out his parenting responsibilities in an exemplary manner. The Applicant has continued to live in Hamilton with her older daughter J. She has not provided any other details whatsoever of her personal circumstances in her affidavit evidence. The Applicant had very limited contact with P.A.J. from December 2016 until July 29, 2022, and she has not had any significant involvement in attending to the child’s needs. The Respondent’s evidence, which has not been denied by the Applicant, is that the Applicant’s parenting time with P.A.J. from January 2017 until July 24, 2022 consisted of the following:

1. No visits at all in 2017;

2. Eight weekends in total from when P.A.J. began to reside with him in October 2016 until the beginning of 2020;

3. Three weekends in 2020 (specifically, two weekends in February 2020 and one weekend in March 2020);

4. Three weekends in 2021 (specifically, one weekend in November, one weekend in October and the third in December 2021); and

5. No visits from January 1, 2022 until July 24, 2022.

[46] On July 24, 2022, the father sent P.A.J. for a visit with the mother of his older daughter E. in Brantford, so that the two sisters could spend time with each other. Unbeknownst to the Respondent, the Applicant had hatched a plan with the mother of E. earlier in July 2022 for P.A.J. to be brought to her home during this visit, and for the Applicant to keep the child in her care.

[47] While P.A.J. was with the Applicant from July 28 to July 29, 2022, E.’s mother supported the Applicant in completing the necessary paperwork to bring an emergency motion in this court on July 29, 2022 to seek primary residence of P.A.J. This motion did not proceed because duty counsel advised the Applicant that there was no urgency at all to the relief that she requested. Nonetheless, the Applicant made the unilateral decision to keep P.A.J. in her care and breach the term of the December 15, 2016 order granting the Respondent primary residence. During the evening of July 29, 2022, E.’s mother texted the Respondent and advised that she had brought P.A.J. for an overnight visit with the Applicant on July 28, 2022, but that the Applicant was now refusing to return the child to her care. I note that when E.’s mother learned from the Applicant that she had not obtained an emergency order granting her primary residence of P.A.J., she advised the Applicant that she could not support her plan to keep the child in breach of the existing court order. The Respondent called the police for direction, but they did not assist in returning P.A.J. to his care as there was no police enforcement clause. P.A.J. called the Respondent later in the evening on July 29, 2022 and told him that her mother would be contacting him once he agreed to “revert full custody” to the Applicant. P.A.J. has not accepted any calls from her father since that date, except for a very brief call on her birthday in August 2022. The Respondent has made numerous attempts to connect with the Applicant to discuss the situation, but the Applicant has not accepted any of his calls.

[48] The Respondent retained counsel immediately, and he brought this motion initially without notice to the Applicant. The Respondent’s affidavit sworn August 7, 2022 in support of the motion included a new Motion to Change Final Order of the Respondent dated August 7, 2022, in which he requests an order for sole decision-making responsibility and primary residence respecting P.A.J., and parenting time for the Applicant on alternate weekends provided that she is exercising her parenting time consistently. Brown J. triaged the matter on that date and determined that the motion should be served on the Applicant. The matter returned before Brown J. on August 9, 2022, at which time counsel for the Respondent acknowledged that the motion materials needed to be served. Brown J. also raised the issue of jurisdiction to deal with the motion, given that the child has been residing in Toronto since 2016. The motion was adjourned to August 12, 2022.

[49] The Respondent served this motion and his affidavit sworn August 7, 2022 on the Applicant on August 10, 2022. Upon effecting this service, he met the requirements under Rule 15(5) of the Family Law Rules for formally commencing a new Motion to Change Final Order. I note that counsel for the Respondent will need to have this new Motion to Change Final Order formally issued by the court. Accordingly, there are now two Motions to Change Final Order before the court. The Motion to Change the Final Order dated February 11, 2010 which the Respondent commenced in 2016 will continue to apply to the issues of primary residence and parenting time, since those issues were not resolved on a final basis in the 2016 proceeding. The new Motion to Change the Final Order dated December 15, 2016 will govern only to the question of decision-making responsibility, since that was the only parenting issue that was addressed on a final basis in the December 15, 2016 order.

[50] At the return of this motion on August 12, 2022, timelines were set for the service and filing of additional materials, and the motion was adjourned to August 24, 2022 as a placeholder date only. The matter was then scheduled for a hearing before me on August 26, 2022.

PART 4: PROCEDURAL ISSUES

I. ISSUE #2: DOES THIS COURT HAVE JURISDICTION TO HEAR THIS MOTION?

[51] As I have indicated, on August 8 and 9, 2022, Brown J. raised the question of whether this court has jurisdiction to hear this motion, given that the child has been residing primarily in Toronto since October 2016. At that time, Brown J. was aware of the final order dated February 11, 2010, and that the parties had reached an agreement through mediation in December 2016 to change the terms of that final order. However, there was no evidence before the court at that time as to whether a Motion to Change Final Order had been commenced in 2016, and whether the mediation agreement had been incorporated into an order.

[52] It has now been determined that a Motion to Change Final Order was in fact commenced in this court very soon after P.A.J. went to live with her father in late October 2016, and that Brown J. made an order on December 15, 2016 in the context of that Motion to Change Final Order in accordance with the mediation agreement that the parties reached on that date. That Motion to Change proceeding has not been concluded or administratively dismissed. Rule 15(4) of the Family Law Rules provides that Rule 5, relating to where an application should be brought, applies equally to Motions to Change Final Orders. Rule 5 stipulates that if the case deals with decision-making responsibility, parenting time or contact with respect to a child, it must be started in the municipality where the child habitually resides, except as provided for under section 22 of the Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended (the “CLRA”). Section 22 of the CLRA stipulates the circumstances in which the court may accept jurisdiction even through the child is not habitually resident in Ontario. The parties agree that the child resided primarily with the Applicant in the Hamilton area from the time of her birth in 2009 until shortly before the commencement of the Motion to Change Final Order proceedings in 2016. Indeed, the parties accepted this court’s jurisdiction in pursuing legal relief respecting parenting and child support issues and in jointly requesting an order dealing with these issues on December 15, 2016. Brown J. was also satisfied as to the court’s jurisdiction at that time. Accordingly based on the evidence before me, I conclude that this court had jurisdiction when the first Motion to Change Final Order was commenced in 2016, which is the relevant time for determining jurisdiction to hear the motion as it relates to the primary residence and parenting time issues.

[53] The new Motion to Change Final Order would have to have been brought in Toronto in the usual course, given that P.A.J. has been habitually resident in Toronto since October 2016. The Family Law Rules do not specifically address the extremely unusual situation that has arisen in this case, where there are two proceedings involving the same parties and factual matrix but with different jurisdictional mandates according to the Family Law Rules. It does not make practical or legal sense to have these proceedings conducted in different jurisdictions, and therefore I turn to Rule 1(7) of the Family Law Rules, which provides as follows:

Matters not covered in rules

(7) If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure. O. Reg. 114/99, r. 1 (7).

[54] By way of analogy, I turn to Rule 5(8) of the Family Law Rules, which provides that a case may be transferred to another municipality if the court is satisfied that it is substantially more convenient to deal with a case or any step in the case in another municipality. I am satisfied that it is substantially more convenient to deal with all issues raised in this motion and in the Respondent’s new Motion to Change Final Order in Hamilton, and I am therefore granting the Respondent leave to file his new Motion to Change Final Order in this municipality. This order will be without prejudice to the right of either party to request a transfer of both Motion to Change proceedings at a later date. The reasons for this decision are as follows:

1. The parties have ongoing litigation in this jurisdiction, and the Applicant continues to reside in Hamilton.

2. The Applicant has not objected to the jurisdiction of this court to deal with the new Motion to Change Final Order, and it is in her interests that the proceeding be heard here given that she is a Hamilton resident.

3. The Respondent is the party who lives in Toronto, but he has commenced his new Motion to Change Final order and this motion in Hamilton because of his uncertainty about the status of the 2016 proceedings and his wish to address the legal issues in a timely manner. He is the only party who could suffer prejudice from having these proceedings dealt with in Hamilton, but he is seeking relief from this court and is asking this court to accept jurisdiction.

4. With respect to this motion in particular, I have determined that it is urgent and that the parties require immediate assistance from this court. The delay that would result from requiring the Respondent to file his new Motion to Change Final order in Toronto and wait for a motion date in a Toronto court would result in this family remaining in a situation of turmoil and uncertainty for several more weeks. This cannot be allowed. The parties and P.A.J. desperately need a court order immediately to establish the parenting arrangements going forward and to eliminate the chaos that has befallen this family since July 29, 2022.

II. ISSUE #3: HAS THE TEST BEEN MET FOR PROCEEDING WITH THIS MOTION PRIOR TO A CASE CONFERENCE?

[55] Rule 14(4) of the Family Law Rules provides that no notice of motion or supportive evidence may be served, and no motion may be heard, before a conference dealing with the substantive issues has been completed. However, this direction is subject to Rule 14(4.2), which provides that a motion may proceed prior to a case conference “if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.” Based on the court’s records, it does not appear that a case conference has been held in the Motion to Change Final Order that was commenced in 2016, and therefore I had to be satisfied before proceeding with the motion that there was a situation of urgency.

[56] The evidence did satisfy me that the test of urgency for proceeding prior to a case conference was met in this case. P.A.J. has been in the primary care of her father in Toronto since October 2016 and has had minimal contact with her mother since that time. There is a history of significant concerns respecting the child’s safety and wellbeing while she was in the mother’s care. The mother has been withholding P.A.J. from the father, contrary to the terms of the existing order and without the father’s consent, since July 29, 2022. As I will discuss in further detail below, P.A.J. has suffered from emotional and social issues for several years and has been involved with various professionals to address these challenges. She has recently come out as gay, experienced rejection from a friend at school, and responded by cutting her wrist. She has also experienced feelings of confusion and abandonment respecting her relationship with her mother, and she is currently being put in the middle of burgeoning conflict between her parents. She is an extremely vulnerable young girl who finds herself in an emotionally charged situation. Despite these concerns, the Applicant has not adduced any evidence whatsoever of her current circumstances, her living arrangements or her plan for the care of P.A.J. School starts in less than a week, and P.A.J. urgently requires a clear and stable plan to address her needs. There is simply insufficient time to hold a case conference and then proceed with a motion within the timeframe required to ensure that P.A.J.’s immediate needs are met.

PART 5: THE PARENTING ISSUES

I. POSITIONS OF THE PARTIES

[57] The Respondent submits that there have been material changes in circumstances since the order dated December 15, 2016 which meet the threshold test for a variation of the parenting terms of that order. Specifically, he highlights that the Applicant has not taken an active role in addressing the child’s needs since October 2016, has not connected with third party professionals who have been involved with the child, and has had minimal parenting time with her. In addition, he states that the Applicant’s breach of the December 15, 2016 order by withholding the child from him since July 29, 2022 satisfies the test. His position is that it is in P.A.J.’s best interests to be immediately returned to his primary care, and that he be granted sole decision-making responsibility pending further order. He states that joint decision-making responsibility is no longer in the child’s best interests given the minimal role that the Applicant has played in the child’s life, her poor judgment in unlawfully withholding the child without justification, his complete lack of trust in her due to the events of the past month and the Applicant’s efforts to make P.A.J. believe that he has been the cause of her limited contact with her. He submits that he has provided excellent and consistent care for P.A.J. throughout her life, that he has a loving and committed relationship with her, and that he has a clear and supportive plan for her care that is in her best interests. Notwithstanding his concerns about the Applicant’s conduct and lack of communication with him since July 29, 2022, he is willing to comply with the terms of the order December 15, 2016 order granting her alternate weekend parenting time.

[58] The Applicant requests an order that P.A.J. remain in her primary care. She claims that the Respondent has relayed false messaging to P.A.J. about her and the child’s older sister J. Specifically, she claims that the Respondent has stated the following to P.A.J.:

1. That the Applicant and J. are angry with her and do not want to see or speak with her;

2. That the Applicant and J. have not made attempts to reach out to her; and

3. That the Applicant does not work, and that she abused P.A.J. in the past.

[59] According to the Applicant, P.A.J. has expressed a strong desire to live with her and her older sister J. in Hamilton and has described being fearful of the father’s “aggressiveness when he speaks with her.” She states that P.A.J. talks about her father making her feel like there is something wrong with her. She is concerned that P.A.J.’s mental and emotional well-being will be jeopardized if she is returned to the Respondent’s primary care. The Applicant wants to ensure that P.A.J.’s voice is heard in this proceeding, and therefore she seeks an order referring the case to the Office of the Children’s Lawyer so that the child’s independent views and preferences can be put before the court.

II. THE LAW

A. Relevant Legislative Provisions

[60] The parties were never married, and therefore the parenting issues in this case are governed by the CLRA. Part III of the Act addresses the issues of decision-making responsibility, parenting time, contact orders and guardianship. A contact order is available to individuals who are not parents of the child, and the concept is therefore not relevant in this case.

[61] Section 19 of the CLRA delineates the purposes of Part III of the CLRA as follows:

Purposes, Part III

19. The purposes of this Part are,

a) to ensure that applications to the courts respecting decision-making responsibility, parenting time, contact and guardianship with respect to children will be determined on the basis of the best interests of the children;

b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in relation to the determination of decision-making responsibility with respect to the same child ought to be avoided, and to make provision so that the courts of Ontario will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal having jurisdiction in another place with which the child has a closer connection;

c) to discourage the abduction of children as an alternative to the determination of decision-making responsibility by due process; and

d) to provide for the more effective enforcement of parenting orders and contact orders, and for the recognition and enforcement of orders made outside Ontario that grant decision-making responsibility, parenting time or contact with respect to a child. 2020, c. 25, Sched. 1, s. 2.

[62] Section 18(1) of the CLRA defines the key parenting concepts referred to in the Act. It clarifies that a “parenting order” is an order that addresses the issues of decision-making responsibility or parenting time with respect to a child. Those two concepts are defined as follows:

“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.

“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

[63] Section 20(5) of the Act elaborates upon the meaning of “parenting time” as follows:

Parenting time

20(5) The entitlement to parenting time with respect to a child includes the right to visit with and be visited by the child, and includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education. 2020, c. 25, Sched. 1, s. 2.

[64] By virtue of section 28(6) of the CLRA, a right to parenting time includes the right to make day-to-day decisions respecting the child, unless otherwise ordered:

Parenting time, day-to-day decisions

28(6) Unless the court orders otherwise, a person to whom the court allocates parenting time with respect to a child has exclusive authority during that time to make day-to-day decisions affecting the child. 2020, c. 25, Sched. 1, s. 6.

[65] Section 28(8) of the CLRA also safeguards the influence and involvement of a parent who has been allocated parenting time but not any aspects of decision-making responsibility. It establishes the right of parents who have been allocated either decision-making responsibility or parenting time to request and receive information about the child’s well-being, including their health and education:

Right to ask for and receive information

28(8) Unless a court orders otherwise, a person to whom decision-making responsibility or parenting time has been granted with respect to a child under a parenting order is entitled to ask for and, subject to any applicable laws, receive information about the child’s well-being, including in relation to the child’s health and education, from,

a) any other person to whom decision-making responsibility or parenting time has been granted with respect to the child under a parenting order; and

b) any other person who is likely to have such information. 2020, c. 25, Sched. 1, s. 6.

[66] Section 21(1) of the CLRA set out the court’s jurisdiction to make an original parenting order in favour of a parent:

21(1) A parent of a child may apply to a court for a parenting order respecting,

a) decision-making responsibility with respect to the child; and

b) parenting time with respect to the child. 2020, c. 25, Sched. 1, s. 2.

[67] Where a party requests an order varying a parenting order, the court must consider section 29 (1) of the CLRA:

Variation of Orders

29 (1) A court shall not make an order that varies a parenting order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order.

[68] The CLRA grants the court the right to make interim parenting orders both in original proceedings and variation proceedings, and to vary interim parenting orders in either context. This is implicit in section 24 of the CLRA, which sets out the test and considerations that apply in making a parenting order or a contact order. Section 24(7) stipulates that section 24 applies equally to interim parenting orders and to variations of parenting orders or interim parenting orders.

[69] Section 24(1) of the CLRA directs that in making a parenting order, the court shall only take into account the best interests of the child in accordance with the provisions of section 24. In carrying out the best interests analysis, the court is required by virtue of section 24(2) to consider all relevant circumstances, but to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being:

Primary consideration

24(2) 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 and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.

[70] The primary consideration articulated in section 24(2) recognizes that there may in some cases be conflicts in attempting to weigh the relevant best interests factors. The courts have been given a clear direction that any such difficulties in attempting to carry out the analysis should be resolved in favour of ensuring that the child’s physical, emotional and psychological safety, security and well-being are promoted

[71] Section 24(3) sets out a non-exhaustive list of factors related to the circumstances of a child that the court must consider in making a parenting order:

Factors

24(3) 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 parent;

d) the history of care of the child;

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

f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

g) any plans for the child’s care;

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

i) the ability and willingness of each person in respect of whom the order would apply to communicate and 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 the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to 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. 2020, c. 25, Sched. 1, s. 6.

[72] Section 24(3)(j) specifically highlights the occurrence of “family violence” as an important consideration in determining where the best interests of a child lie in making parenting and contact orders. Section 18(1) of the CLRA defines the term “family violence” very broadly as follows:

“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.

[73] Section 24(4) of the CLRA dictates that in considering the impact of family violence in relation to the factors set out in section 24(3)(j), the court must take into account several factors relating to family violence:

Factors relating to family violence

24(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,

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

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

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

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

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

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

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

h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.

[74] Section 24(5) of the CLRA addresses the relevance of past conduct in assessing the child’s best interests as follows:

Past Conduct

24(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. 2020, c. 25, Sched. 1, s. 6.

[75] Section 24(6) directs 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.”

[76] Section 28(1) of the CLRA outlines the general powers of the court in an application under section 21, and the types of provisions that it can incorporate into a parenting order. It gives the court very broad powers to craft an order that will most fully promote the child’s best interests. These terms apply equally in variation proceedings:

Parenting orders and contact orders

28(1) The court to which an application is made under section 21,

a) may by order grant,

(i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2),

(ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or

(iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);

b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and

c) may make any additional order the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child. 2020, c. 25, Sched. 1, s. 6.

[77] By virtue of sections 28(4) of the CLRA, the court may allocate decision-making responsibility, or any aspect of it, to one or more persons. Section 28(5) stipulates that the court may allocate parenting time respecting the child by way of a schedule.

[78] In making a parenting or contact order, the court must also consider section 28(7) of the Act, which imposes new obligations on judges when parties seeking a parenting order present them with a “parenting plan” that they both agree to:

Parenting plan

28(7) The court shall include in a parenting order or contact order any written parenting plan submitted by the parties that contains the elements relating to decision-making responsibility, parenting time or contact to which the parties agree, subject to any changes the court may specify if it considers it to be in the best interests of the child to do so. 2020, c. 25, Sched. 1, s. 6.

[79] Section 34 of the CLRA provides that the court may give such directions as it considers appropriate regarding the supervision of decision-making responsibility, parenting time or contact with a child:

Supervision of parenting orders and contact orders

34 (1) A court may give such directions as it considers appropriate for the supervision, by a person, a children’s aid society or other body, of decision-making responsibility, parenting time or contact with respect to a child under a parenting order or contact order. 2020, c. 25, Sched. 1, s. 11.

Consent to act

(2) A court shall not direct a person, a children’s aid society or other body to supervise the exercise of decision-making responsibility, parenting time or contact under subsection (1) unless the person, society or body has consented to act as supervisor. 2020, c. 25, Sched. 1, s. 11.

[80] The CLRA imposes several important duties on parents, which are aimed at ensuring that their parenting remains focussed on the child’s best interests, that children are safeguarded against unnecessary conflict, and that parenting issues are addressed in an orderly manner, with all relevant information being provided to the court. Section 33.1(1) requires them to keep the best interests of the child at the forefront of their minds at all times:

Parties

Best interests of the child

33.1(1) A person to whom decision-making responsibility, parenting time or contact has been granted with respect to a child under a parenting order or contact order shall exercise the decision-making responsibility, parenting time or contact in a manner that is consistent with the best interests of the child within the meaning of section 24. 2020, c. 25, Sched. 1, s. 10.

[81] Section 33.1(2) imposes a clear duty on parties to take all reasonable measures to protect children from conflict:

Protection of children from conflict

33.1(2) A party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding. 2020, c. 25, Sched. 1, s. 10.

[82] Section 33.1(4) requires parties to provide complete and updated information to the court:

Complete, accurate and up-to-date information

33.1(4) A party to a proceeding under this Part, or a person who is subject to an order made under this Part, shall provide complete, accurate and up-to-date information if required to do so under this Part. 2020, c. 25, Sched. 1, s. 10.

[83] Finally, section 33.1(5) requires parties to comply with orders made under Part III of the Act:

Duty to comply with orders

33.1(5) For greater certainty, a person who is subject to an order made under this Part shall comply with the order until it is no longer in effect. 2020, c. 25, Sched. 1, s. 10.

B. The Test for Varying a Final or Temporary Parenting Order on a Temporary Basis

[84] In variation proceedings, the court cannot retry the case that led to the existing order and substitute its discretion for that of the judge who granted that order. It must assume that the decision was correct, and the moving party is not entitled to re-argue the merits of that order since this would amount to an indirect route of appeal of that order (Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.), at para. 11; Barendregt v. Grebliunas, 2022 SCC 22 (S.C.C.), at para. 76; Docherty v. Beckett (1989), 21 R.F.L. (3d) 92 (Ont. C.A.)).

[85] The relevant parenting provisions of the CLRA as outlined above establish that there are two main stages to the test for varying a parenting order:

1. First, as directed by section 29(1) of the Act, the moving party must establish as a threshold matter that there has been a material change in circumstances since the making of the existing parenting order that affects or is likely to affect the best interests of the child who is the subject of the order.

2. Second, if this threshold test is satisfied, the court must embark upon a fresh inquiry to determine the parenting terms that are in the best interests of the child in the new circumstances.

[86] The courts have also applied this two stage test in proceedings to vary a parenting order pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended (Gordon; Barendregt, at para. 105; S.H. v. D.K. 2022 ONSC 1203 (Div. Ct.), at para. 17). Accordingly, the legal principles that have evolved respecting variation of parenting orders in the context of divorce apply equally to parenting order variation proceedings under the CLRA (Brown v. Lloyd, 2015 ONCA 46 (CA); W.(A.C.) v. P. (T.M.), 2014 ONSC 6275 (Div. Ct.); Bjornson v. Creighton (2002), 62 O.R. (3d) 236 (C.A.); leave to appeal to S.C.C. dismissed, 2003 CarswellOnt 1387 (S.C.C.)).

C. Stage 1: The Threshold Material Change in Circumstances Test

[87] Where a party brings a motion to vary a final or temporary parenting order on a temporary basis, special considerations come into play in applying the threshold “material change in circumstances” test. The court must give particular attention in these types of motions to the importance of stability and predictability for children, and must exercise caution to avoid making inappropriate changes to an existing order based on conflicting affidavit evidence that may eventually be proven to be incomplete or unreliable. The Supreme Court of Canada underscored the importance of stability and predictability for children in Barendregt, noting that “[c]hildren should be afforded the comfort of knowing, with some degree of certainty, where they will live and with whom” (at para. 67). The requirement for caution in motions to vary a final or temporary parenting order on a temporary basis also recognizes that temporary orders often create a status quo that is difficult to alter at trial (S.H. v. D.K., at para. 37), that multiple interlocutory proceedings should be discouraged for the sake of the parties, the child and the administration of justice as a whole, and that the best interests of children generally require that parenting disputes proceed to trial as quickly as possible (Barendregt, at para. 68; Serruys v. Serruys, 1982 CarswellOnt 305 (C.A.), at para. 12). In order to address these considerations and concerns, the following additional requirements must be satisfied at the first stage of the test for variation on such motions:

1. First, the court must be satisfied that the new circumstances are so compelling and exceptional in nature that the existing order needs to be changed immediately to meet the child’s best interests, rather than waiting for a full hearing of the issues at trial (S.H. v. D.K., at para. 40; F.(H.) v. G.(D.), 2006 BCCA 36 (C.A.), at para. 17; Niel v. Niel, 1976 CarswellOnt 197 (C.A.), at para. 7).

2. Second, the court must also be satisfied that the evidentiary basis to change the existing order on a temporary basis is material and compelling (S.H. v. D.K., at para. 42; Papp v. Papp, 1969 CarswellOnt 963 (C.A.), at para. 34; Serruys, at para. 12).

[88] In applying these additional requirements in motions to vary a final or temporary order on a temporary basis, the court must strike a delicate balance. On the one hand, it must ensure that the threshold test is not set so low that the child’s stability is inappropriately compromised and decisions are made precipitously without sufficiently persuasive evidence. On the other hand, it must ensure that the bar is not raised so high that the safety and well-being of children may be jeopardized. The new circumstances will be “compelling” where they are pressing and require the court’s immediate attention. The determination of whether the new circumstances are so exceptional as to require an immediate change will turn on the unique facts and profile of the child in each case (S.H. v. D.K., at para. 40). However, the requirement may be met where the child’s physical and/or emotional well-being are in jeopardy, or there are other pressing and urgent circumstances relevant to the child’s well-being (S.H. v. D.K., at paras. 31, 40).

[89] The following additional general principles apply in relation to the threshold material change in circumstances test in a proceeding to vary a parenting order under the CLRA:

1. The element of “change” is key to the analysis of the threshold test in a variation proceeding. The circumstances relied on to support the threshold test must therefore have arisen since the making of the existing order (N.S. v. A.N.S., 2021 ONSC 5283 (S.C.J.); K.M. v. J.R., 2022 ONSC 111 (S.C.J.), at para. 70).

2. The determination of whether there has been a material change in circumstances that affects of is likely to affect the child must logically commence with an analysis of the actual circumstances relevant to the child’s best interests that existed when the order was made. The court should therefore at the threshold stage of the analysis consider the factual grounds and reasons in support of the existing order (K.M. v. J.R., 2022 ONSC 111 (S.C.J.), at para. 70).

3. The change in circumstances relied on may relate to the condition, means, needs or other circumstances of the child, and/or the ability of the parties to meet those needs (Gordon; Persaud v. Garcia-Persaud, 2009 ONCA 782 (C.A.), at para. 4; Brown v. Lloyd, 2015 ONCA 46 (C.A.), at para. 7).

4. The threshold test can be met based on a single change or event, or a combination of changes in circumstances (K.M. v. J. R., at para. 70).

5. In addition, in order to satisfy the “change” element, the circumstance relied on must be one that was either not foreseen, could not have been reasonably contemplated by the judge who made the existing order, or was clearly not factored into the decision-making when the order was made (Gordon, at para. 13; Persaud; Brown).

6. A change in circumstances will only meet the threshold test if it is “material” in nature. In order to be material, the change must be such that if it had been foreseen, reasonably contemplated by the judge, or factored into the decision-making at the time the order was made, it would likely have resulted in different terms (Thompson v. Drummond, 2018 ONSC 1975 (S.C.J.), at para. 36; V. v. V., 2021 ONSC 4380 (S.C.J.), at para. 14; A.E. v. A.E., 2021 ONSC 8189 (S.C.J.), at para. 87; K.M. v. J.R., at para. 70).

7. Furthermore, a change in circumstances will only be considered “material” in the context of a parenting order variation proceeding if it is significant and reasonably long-lasting in nature; trivial or short-lived changes will not justify a variation (Thompson, at para. 37; V v.V., at para. 15; A.E., at para. 88; K.M. v. J.R., at para. 70). The threshold material change in circumstances test is aimed in part at ensuring that the parties do not resort to litigation whenever any change occurs, however minimal (Gordon, at para. 64; Neger v. Dalfen, 2016 ONCJ 751 (O.C.J.)). Not every circumstance, event or mistake by a party that affects a child will be considered a material change in circumstances for the purposes of a variation application. As Gray J. stated in Kerr v. Easson, 2013 ONSC 2486 (S.C.J.), at para. 62, aff’d 2014 ONCA 225 (C.A.), “[p]arents are not perfect and they will make mistakes. The court will not assume jurisdiction to correct every mistake in the guise of a material change in circumstances.”

8. The threshold test can also be satisfied by evidence that circumstances which the parties anticipated would occur did not in fact materialize, or where there were expectations at the time of the order respecting the parties’ future conduct and those expectations did not materialize.

9. A party’s non-compliance with an existing court order can amount to a material change in circumstances for the purposes of the variation analysis if the breaches have affected or are likely to affect the child’s best interests (Kerr; Chin Pang v. Chin Pang, 2013 ONSC 2564 (S.C.J.); Zaidi v. Qizilbash, 2014 ONSC 3652 (S.C.J.); Merkand v. Merkand, 2006 CarswellOnt 712 (C.A.); V.J.S. v. L.J.G. (2014), O.J. No. 2238 (S.C.J.); Roloson v. Clyde, 2017 ONSC 3642 (S.C.J.), at para. 50).

10. Evidence of conflict between the parties and the child’s exposure to such conflict since the existing order was made may not satisfy the threshold test where the same problems existed when the order was made. (Litman v. Sherman, 2008 ONCA 485 (C.A.); Goldman v. Kudelya, 2017 ONCA 300 (C.A.); Roloson, at para. 51; Joachim v. Joachim, 2021 ONSC 8584 (S.C.J.)). However, the development of discord between the parties where none existed at the time of the order, or a significant increase in the level of the conflict since the order was made resulting in an outright failure of the existing parenting plan, may meet the threshold test if it has had a negative impact on the child or has affected the parents’ ability to meet the child’s needs (Goldman; Roloson, at para. 51).

11. Changes in the child’s age and level of maturity will not generally in and of themselves satisfy the threshold test for varying a parenting order (Gray v. Wiegers, 2008 SKCA 7 (Sask CA)). However, the test may be met if the child’s needs have materially changed as a result of those factors since the existing order was made, with the result that the terms of the order are no longer in the child’s best interests (Elliott v. Loewen, 1993 CarswellMan 36 (C.A.); Brown, at para. 11; K.M. v. J.R., at para. 70; McMaster-Pereira v. Pereira, 2018 ONSC 7090 (S.C.J.)).

12. The test may also be satisfied if the terms of the existing order or the Reasons for Judgment in support of the order specifically contemplated changes to the order if certain events occurred, and those developments in fact transpired. This could occur, for instance, if the order or the Reasons for Judgment in support of the order specifically contemplated a reconsideration of the parenting terms as the child matured.

13. The caselaw has established that the concept of a “material change in circumstances” in the context of parenting order variation proceedings must be viewed flexibly, so as to accommodate a host of factual developments that may have evolved since the existing order was made (Thompson, at para. 36; A.E. v. A.E., at para. 87) .

[90] The onus lies with the party seeking to change an existing parenting order to satisfy the threshold test for variation set out in section 29(1) of the CLRA. If they fail to meet this onus the inquiry is at an end and the court must dismiss the variation proceeding (Persaud, at para. 3; Litman at para. 26; Barendregt, at para. 76, in the divorce context).

D. Stage 2: Determining the Parenting Terms that are in the Child’s Best Interests

1. General Principles Respecting the Best Interests Analysis

[91] If the threshold criterion under section 29(1) of the CLRA is met, the court must undertake a fresh inquiry into the parenting terms that are in the child’s best interests, having regard for all of the factors set out in section 24 of the Act. All parties bear the evidentiary onus at the second stage of the analysis of demonstrating where the best interests of the child lie, and there is no legal presumption in favour of maintaining the existing parenting arrangements (Bubis v. Jones, 2000 CarswellOnt 1243 (S.C.J.), at para. 20; Persaud; Deslauriers v. Russell, 2016 ONSC 5285 (S.C.J.); Thompson; A.E. v. A.E., at para. 89; K.M. v. J.R., at para. 71). The focus of the court’s inquiry is the child’s best interests having regard for the change in circumstances (Khairzad v. Erroussa, 2021 ONCA 667 (C.A.), at para. 6; Barendregt, at para. [105](https://www.canlii.org/en/ca/scc/doc/2022/20