COURT FILE NO.: FS-18-237-0000 DATE: February 21, 2023

SUPERIOR COURT OF JUSTICE – ONTARIO

B E T W E E N:

A. D. Applicant

Timothy Henderson, for the Applicant

• and -

S. K. Respondent

William Shanks, for the Respondent

Beth Calonego, the Children’s Lawyer HEARD: February 1, 2023, at Thunder Bay, Ontario via Zoom

Mr. Justice J.S. Fregeau

REASONS ON MOTIONS

INTRODUCTION

[1] There are two motions before the court.

[2] The applicant (the “mother”) seeks the following temporary relief:

1. Sole decision-making responsibility for the child C.K., now 11 years old;
2. An order that C.K. reside exclusively with the mother and that the parenting time of the respondent (the “father”) be temporarily suspended pending the delivery of the Report of the Office of the Children’s Lawyer;
3. An order that C.K. continue to be enrolled at Crestview Public School (“Crestview”) and that the father not remove the child from Crestview without the written consent of the mother;
4. An order restraining the father from directly or indirectly contacting or communicating with the mother or C.K. and from coming within a specified distance of the mother’s residence, the mother’s place of employment and C.K.’s school;
5. An order that the father pay to the mother child support for C.K. in accordance with the Child Support Guidelines (the “CSGs”) and based on the father’s income and that the father pay to the mother his proportionate share of s.7/extraordinary expenses of C.K., beginning November 1, 2022;
6. An order requiring the parties to exchange proof of income on an annual basis, on or before June 1 of each year, beginning in 2023;
7. An order requiring the father to designate C.K. as the sole, irrevocable beneficiary of his employment life insurance or to provide other adequate security for child support in the event of the father’s death;
8. An order requiring the father to maintain C.K. under any extended health care and/or dental plan available to the father through his employment.

[3] The father seeks the following temporary relief:

1. Primary care and sole decision-making responsibility for C.K.;
2. An order requiring C.K. to be re-enrolled at McKellar Park Central Public School (“McKellar”) and prohibiting the mother from removing C.K. from enrollment at McKellar without the written consent of the father;
3. An order directing that the mother and father share parenting time with C.K. on a two-week rotation schedule.

[4] On November 28, 2022, Nieckarz J. made a Parenting and Contact Order – Office of the Children’s Lawyer, referring this matter to the Children’s Lawyer and requesting that the Children’s Lawyer provide such services for C.K., under s. 89(3.1) and s. 112 of the Courts of Justice Act, as she deems appropriate.

[5] The November 28, 2022, Order of Nieckarz J. further ordered that if the Children’s Lawyer determined it appropriate to provide legal representation for C.K. under s. 89 (3.1) of the Courts of Justice Act, the Children’s Lawyer shall have the right to, among other things, appear and participate in this proceeding and make submissions to this court including the position advanced on behalf of C.K.

[6] Pursuant to the November 28, 2022, Order of Nieckarz J., Ms. B. Calonego was appointed as the Children’s Lawyer for C.K. Ms. Calonego appeared at the hearing of this motion and made submissions as to the views and preferences of C.K.

BACKGROUND

[7] The parties have filed a total of eight affidavits on these motions - three of the mother and five of or on behalf of the father – all of which I have carefully reviewed. What follows is my summary of what I consider to be the relevant portions of the factual background leading up to these motions.

[8] The mother and father were married on May 27, 2006 and separated mid to late 2017. There are two children of the marriage, C.L.K., now 18 years old, and C.K., now 11 years old.

[9] Following the separation of the parties, C.L.K. resided solely with the mother and rarely if ever spent time with the father. The parties shared the parenting of C.K. on a two-week rotating schedule, dovetailing with the father’s employment schedule at Lac des Iles Mine, where he is employed as an underground miner.

[10] The mother initiated an Application in 2018 seeking sole parenting time of C.K. In his Answer, the father requested the same relief. On October 10, 2018, Nieckarz J. requested that the Office of the Children’s Lawyer complete a Focused Children’s Lawyer’s Report. At that time, the Children’s Lawyer was primarily engaged to investigate concerns relating to C.L.K.’s relationship with the father. However, issues and concerns regarding C.K. were also investigated.

[11] In September 2019, Janet Lang, the Clinician engaged by the Office of the Children’s Lawyer in this proceeding, delivered her Voice of the Child Report. Ms. Lang reported that C.L.K. clearly stated that she did not wish to have any contact with the father at that time. Ms. Lang further reported that throughout the three interviews she had with C.K., the child consistently stated that the two-week alternating schedule that had been in place since separation was satisfactory and should remain in place going forward.

[12] Ms. Lang declined to make any recommendation as to the division of parenting time for C.K. She did recommend that the mother not change C.K.’s school (from McKellar) without notifying the father three months in advance so that, if necessary, the father, who does not drive, could relocate to the same area to help maintain his relationship with C.K.

[13] In the more than five years since the parties separated, there has not been a temporary order regarding parenting time or decision-making responsibility made with respect to either child. Since the date of separation and until the fall of 2022, C.L.K. resided with the mother and had no meaningful contact with the father while C.K. resided with the mother and father on a rotating two-week schedule.

[14] The father has been paying child support to the mother since shortly after separation. C.L.K. turned 18 years old in September 2022. On October 1, 2022, the father unilaterally reduced his child support payment to the mother because C.L.K. had turned 18 years old and was not attending school.

[15] In mid-October 2022, C.L.K. moved out of the mother’s home and into the father’s home where she has resided to date. The parties differ as to the reasons for C.L.K. moving from the mother’s home to the father’s home. The mother deposes that C.L.K. “precipitously moved out of [her] residence and in with the [father]”. The father deposes that C.L.K. advised him that “she was no longer welcome in [the mother’s] home” and that the mother “kicked [C.L.K.] out of the home”.

[16] When the father was arranging to pick C.L.K. up after she had moved out of the mother’s home, he learned from C.L.K. that the mother and her partner had moved from their previous residence to Murillo with the children without notifying him.

[17] The father has chosen to have C.L.K. swear an affidavit on his behalf for these motions. In her affidavit, C.L.K. deposes that she left her mother’s home and moved into her father’s home on or about October 18, 2022 “because [the mother’s] home was a deeply unhealthy environment and [her] mental health was suffering”. C.L.K. further deposes that she was not close with her mother while living with her and that “in her care [she] experienced near constant anxiety, fear, and depression”. C.L.K. has had no relationship with the mother since she moved out of her home.

[18] It is obvious from the contents of C.L.K.’s affidavit that she is very upset with her mother. She explains why in considerable detail. She deposes, however, that she did not make her affidavit for any “retributive or vindictive purpose against [her] mother”. She explains that she did so because she is “concerned with [C.K.’s] safety and general wellbeing” and because she has been able to observe C.K.’s care in her mother’s home for many years such that she is “able to provide context about both of [her] parents”.

[19] Pursuant to the de facto shared parenting arrangement that had been in place since separation, C.K. was in the father’s care from October 12-25, 2022. The father dropped C.K. off at McKellar on the morning of October 25, 2022. He was surprised to see the mother at McKellar that morning.

[20] While at work between October 25, 2022 and November 9, 2022, the father attempted to contact C.K. on a regular basis. He deposes that “for the first time ever, [he] received no communication from [C.K.] during [his] two weeks at work”.

[21] The father returned to Thunder Bay on November 9, 2022, after the completion of his two-week work rotation. He was concerned that the mother may have switched C.K.’s school in his absence, given that she and her partner had recently moved to Murillo and because the mother had switched C.K.’s school in 2018 without notice to him.

[22] On November 9, 2022, the father learned from the principal at McKellar that C.K. was not in school that day and that the mother had or was in the process of transferring C.K. to Crestview in Murillo. As a result, the father contacted the mother and was informed that C.K. did not want to return to his care.

[23] The mother states that C.K. refused to attend school on November 9, 2022, specifically because the father was scheduled to pick him up after school that day. The mother further deposes that C.K. was terrified of seeing the father, fearing that the father would keep him at his home indefinitely and that he would be subject to continued verbal abuse by the father and C.L.K. if he returned to the father’s residence.

[24] The background context to C.K.’s concerns about returning to his father’s home in November 2022, as allegedly expressed by C.K. to his mother, is that C.K. had been expressing concern and discomfort with spending time at the father’s home for the previous six months. According to the mother, C.K. told her that the father and C.L.K. bully and ridicule him about his weight, that the father limits his food intake and that the father is unaccepting of C.K. having expressed the belief that he is bisexual. The mother deposes that C.K. suffers from anxiety, is being treated by the family doctor and that seeing his father is causing him significant stress.

[25] The mother further deposes that C.K. told her, in addition to the above noted concerns, that just prior to October 25, 2022, he overheard the father and C.L.K. saying that they were going to do whatever they could to keep C.K. from seeing or being with the mother. Overhearing this conversation caused C.K. severe anxiety and stress and precipitated C.K.’s request to terminate contact with the father and to live only with the mother, according to the mother.

[26] The mother deposes that C.K. is being treated for anxiety by their family doctor, Dr. St. Jacques. The mother appended a copy of Dr. St. Jacques’ notes from a November 28, 2022 appointment C.K. had with the doctor. Dr. St. Jacques’ notes include the following:

• For a couple of months having anxiety about going over to Dad’s
• Patient reports feeling scared and anxious about going to Dad’s
• Patient reports not feeling “safe” at Dad’s
• No reports of physical abuse; verbal comments “chunky” and mentioning of his weight
• School going okay, just changed school from McKellar to Crestview, reports bullying…during recess
• Sexuality: interested in girls, not currently dating

[27] In her evidence, the mother clarifies that C.K. was being bullied at McKellar, not at Crestview as suggested from the notes of Dr. St. Jacques. The mother deposes that, despite her best efforts, C.K. refused to attend school at McKellar during the week of November 9, 2022 out of fear of seeing the father and his belief that the father would try to take him from McKellar.

[28] The mother alleges that it was as a result of C.K.’s refusal to attend McKellar and his request that he be enrolled in a different elementary school that she enrolled him at Crestview. It is not in dispute that she did so without informing the father. C.K. began to attend Crestview on November 16, 2022 and, according to the mother, likes his new teacher, has made many new friends and is generally doing very well there.

[29] The father denies that either he or C.L.K. “bully” C.K. about his weight. He deposes that he responsibly parents C.K. about nutrition and portioning and that he would not allow C.K. to be bullied about his weight in his home. The father deposes that he loves and accepts C.K. regardless of what he may express as to his sexual identity or orientation. He freely acknowledges that he feels that C.K. is too young to be worried about dating and romantic love. The father does acknowledge that C.K. was “experiencing some anxiety” when C.K. was in his care prior to October 25, 2022. The father attributes this to changes in the home as a result of C.L.K. returning to his care which, according to the father, C.K. was comfortable talking to him about.

[30] Pending the hearing of this motion and pursuant to the December 12, 2022 endorsement of Newton J., C.K. was in the father’s care from Friday December 16, 2022 at 5:00 pm to Sunday December 18, 2022 at 4:00 pm and from Friday January 6, 2023 at 5:00 pm to Sunday January 8, 2023 at 4:00 pm.

[31] The mother deposes that C.K. was reluctant to go to the father’s home for both parenting-time visits. In regard to the December visit, the mother alleges that the father made comments to C.K. such as “Did mom make you say that”. The mother is also critical of the father for not celebrating Christmas with C.K. during this visit and for having C.L.K. return C.K. to her care at the end of the visit. The mother deposes that C.K. was upset during the January visit with the father because the father denied him the use of an IPAD that he usually uses to communicate with her and because of alleged negative comments made by the paternal grandmother to C.K. about the mother.

[32] The father deposes that the December visit with C.K. went very well. C.K. was initially nervous but soon relaxed and did not exhibit any fear, anxiety or stress about being in the father’s home or care. The father further deposes that he and C.K. watched a movie together, with snacks, that C.K. slept in on the Saturday morning, that he cooked him brunch and that C.K. played with C.L.K. in the afternoon. According to the father, the family went to his mother’s home for supper on the Saturday evening and C.K. enjoyed himself very much.

[33] The father deposes that C.K. had a friend over for a sleepover on Saturday December 17, 2022, that he cooked C.K. and his friend brunch again the next morning and that C.K., C.L.K. and C.K.’s friend went to the park to play for a couple of hours in the afternoon.

[34] The father deposes that the January visit also went well, including C.K. opening his Christmas gift (a new computer), setting it up and playing with it with both the father and C.L.K.

[35] On this motion, the mother is seeking guideline child support retroactive to November 1, 2022, based on the father’s 2021 income, namely $112,931, subject to a credit in favour of the father in the amount of $708 per month which he paid for child support for the months of November, December 2022 and January 2023. She is also requesting that the father be required to contribute proportionately to the reasonable s. 7 expenses of C.K. The mother’s 2021 income was $20,100. The mother calculates the father’s proportionate share of s. 7 expenses at 84% based on the parties 2021 incomes.

[36] The father is requesting that he be required to pay child support to the mother based on a set-off and an equally shared parenting arrangement and that income be imputed to the mother such that her income be deemed to be $35,100 for child support and s. 7 purposes.

THE VIEWS AND PREFERENCES OF C.K.

[37] Ms. Calonego (the “Children’s Lawyer”) began her investigation in early January 2023. Prior to meeting with C.K. and the parties, the Children’s Lawyer reviewed the pleadings and the affidavit evidence filed on these motions. As of the hearing of this motion, the Children’s Lawyer had met with C.K. on two occasions for one hour each. She had also met with many extended family members and friends on both sides of the family.

[38] The Children’s Lawyer, when reporting on C.K.’s views and preferences for the purposes of this motion and a temporary parenting time order, emphasized that her investigation is not complete and that her current position is preliminary. She intends to meet with C.K. several more times, to interview teachers and principals at both McKellar and Crestview and to speak with Dr. St. Jacques and review C.K.’s medical records.

[39] The Children’s Lawyer will also be requesting the assistance of a social work investigation and report in this matter, pursuant to s. 112 of the Courts of Justice Act. It is anticipated that this would require approximately three months to complete.

[40] The Children’s Lawyer stated that C.K. clearly and consistently articulated strong and sincere views and preferences and was able to explain the reasons for these views and preferences. She concluded that the views and preferences as expressed to her by C.K. were his own. The Children’s Lawyer was not concerned that C.K. had been coached or influenced.

[41] In general terms, the relief requested by the mother on this motion is consistent with C.K.’s views and preferences regarding having no contact with his father for the time being and attending Crestview rather than McKellar, according to the Children’s Lawyer. The Children’s Lawyer takes no position on the mother’s request for a restraining order.

[42] The Children’s Lawyer reported that C.K. told her that he was bullied at McKellar and that he likes Crestview, his new teacher and that he has many new friends there. C.K. is also reported to have a positive relationship with his mother and her partner and to enjoy living in a rural location and having “one home”. C.K. is apparently still able to socialize with “Thunder Bay” friends while residing with the mother in Murillo.

[43] The Children’s Lawyer made submissions on the affidavit evidence filed on this motion, in the context of the reasons behind C.K.’s current views and preferences, specifically why he does not want to see his father at the present time.

[44] The Children’s Lawyer reported that C.K.’s relationship with his father has changed since the October 2019 Children’s Lawyer Report, specifically in the last year or two. Referring to the father’s December 7, 2022 affidavit, the Children’s Lawyer noted that the father acknowledged that he actively promotes healthy eating habits with C.K. and that he feels C.K. is too young to be concerned about sexual orientation or identity issues. However, the father’s manner of communication and messaging has increasingly caused C.K. to feel hurt, judged, and insecure in his own body, according to the Children’s Lawyer.

[45] The Children’s Lawyer further reported that C.K. experienced a “visceral reaction” from overhearing the father’s conversation with C.L.K. concerning keeping C.K. away from the mother. Already hurt by comments about his weight and sexuality, after hearing this conversation C.K. did not feel “safe” in the father’s home, according to the Children’s Lawyer.

[46] The Children’s Lawyer submitted that C.K.’s clear preference at present is to have no parenting time with the father. Appropriately, the Children’s Lawyer explored other, less drastic options with C.K. The child remained firm in his position that he is not interested in any contact with the father at this time. However, the Children’s Lawyer also reported that C.K. expressed that he may wish to initiate contact with the father in the future.

[47] In conclusion, the Children’s Lawyer submitted that forcing C.K. to have parenting time with the father is, at this time, contrary to the clearly expressed, independent views and preferences of this sensitive 11-year-old child.

THE POSITIONS OF THE PARTIES

The Father

[48] The father submits that the mother has unilaterally altered a five-year status quo concerning the parties’ equally shared parenting time for C.K., concurrently with changing C.K.’s school without notice to the father and contrary to the 2019 recommendations of the Children’s Lawyer.

[49] The father submits that the current crisis involving C.K. has been engineered by the mother directly as a result of the father’s termination of child support for C.L.K. in October 2022 and C.L.K. moving out of her home and into the father’s home very shortly thereafter.

[50] The father submits that C.K.’s recent disclosures about his issues with the father and C.L.K. are the result of being actively “coached” by the mother in a successful attempt by the mother to have C.K. reject his relationship with the father. The father suggests that any anxiety and stress that C.K. is now experiencing is not the result of anything that occurred between C.K. and him and C.L.K. Rather, C.K.’s current emotional difficulties, if any, are the result of the mother abruptly moving C.K. from McKellar to Crestview in November 2022 and facilitating C.K.’s rejection of his relationship with his father, according to the father.

[51] The father submits that C.K.’s statements about his current mental health issues and the reasons for his current issues, as set out in Dr. St. Jacques’ notes and as commented on by the Children’s Lawyer, essentially mirror the contents of the mother’s affidavit evidence. This consistency is simply too much of a coincidence, according to the father.

[52] The father submits that C.L.K.’s evidence, which is uncontradicted, reports a positive, functional relationship between C.K. and the father and her. The father contends that C.L.K.’s evidence should be given considerable weight and should assist this court in coming to the conclusion that the long-standing status quo which existed prior to November 2022 was not harmful to C.K. and should not have been unilaterally altered by the mother.

[53] The father submits that it is in C.K.’s best interests that he continue to have a loving, safe and stable relationship with both parents, which he had prior to the mother creating the current crisis. The father contends that it is in C.K.’s best interests that he be re-enrolled at McKellar and that the parties have equally shared parenting time, consistent with the long-standing status quo, pending the completion of the Children’s Lawyer’s investigation and report.

The Mother

[54] The mother submits that the position of the father ignores the thoughtful and focused submissions of the trained and experienced Children’s Lawyer as to the consistent, clearly articulated and independently expressed views and preferences of C.K.

[55] The mother submits that there is no evidence to support the father’s assertion that she has “coached” C.K., created the current family crisis as a result the father terminating child support for C.L.K. and, by doing so, caused C.K.’s current emotional difficulties. The mother contends that accepting the father’s position amounts to a finding that an 11-year-old boy has “pulled the wool over the eyes” of an experienced Children’s Lawyer.

[56] The mother suggests that the court place no weight on the affidavit evidence of C.L.K. The mother acknowledges that she has not contradicted each and every allegation of C.L.K. The mother is distressed that their child, although 18 years old, has been drawn into this dispute. She is concerned that C.L.K. has been put in a very difficult position at a time when she is emotionally vulnerable.

[57] The mother has therefore chosen to respond to C.L.K.’s evidence in a limited fashion, addressing only C.L.K.’s possible motivation for saying what she did. The mother alleges that C.L.K., when switching homes in October 2022, threatened that she would do everything in her power for the mother not to have C.K., stating to the mother, “I’m going to fuck you over. You’re fucked now”. The mother submits that C.L.K. is obviously aligned against her and is simply not credible.

[58] The mother submits that the Children’s Lawyer understood, from her direct contact with C.K., that problems had been developing between C.K. and the father over the previous one to two years and were not of recent origin, as suggested by the father. The mother also submits that the breaking point for C.K., and the reason the crisis came to a head in October 2022, was the father and C.L.K. plotting to keep C.K. from the mother. This conversation was overheard by C.K. and caused a “visceral reaction” in C.K. The mother submits that she responded as she did to avert a deeper mental health crisis for C.K., consistent with his best interests.

[59] The mother submits that her evidence about the stress and anxiety being experienced by C.K. in October/November 2022, and the reasons for it, is corroborated by the notes of Dr. St. Jacques and the submissions of the Children’s Lawyer as to the present views and preferences of C.K.

[60] The mother submits that this is the first serious parenting time conflict she and the father have had since they separated over five years ago. The mother contends that this fact is inconsistent with the father’s suggestion that she is a mother who fails to support C.K.’s relationship with his father.

[61] The mother submits that ordering parenting time in favour of the father now, in light of objective evidence suggesting that doing so would be harmful to C.K.’s emotional well-being, is obviously not in C.K.’s best interests. The mother notes that C.K.’s expressed desire is to temporarily suspend visits with his father but to keep that relationship “open”. Granting parenting time to the father now, contrary to C.K.’s expressed wishes, may very well backfire and irreparably damage their presently fragile relationship in the long term, according to the mother.

DISCUSSION

[62] The relevant provisions of the Divorce Act, R.S.C. 1985, c. 3, as amended, are as follows:

Best interests of child

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

Primary consideration

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

Factors to be considered

16 (3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

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

(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.

Parenting order

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

(a) either or both spouses

Interim order

(2) The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection.

[63] The mother and father separated in 2017. They co-parented C.K. cooperatively, without the need for court intervention, until late October 2022. A 2019 Report of the Children’s Lawyer, primarily focused on concerns about C.L.K.’s relationship with the parties, did not identify any significant parenting concerns in the homes of either party.

[64] The father unilaterally terminated his child support payment to the mother for C.L.K. at the end of September 2022 as a result of her turning 18 years old and not attending school. C.L.K. moved from the mother’s home and into the father’s home on October 18, 2022, after not having had any meaningful contact with the father for over four years. At the same time, C.L.K. terminated her contact with the mother.

[65] In early November 2022, the mother removed C.K. from McKellar and enrolled him at Crestview. At the same time, the mother unilaterally suspended the father’s parenting time with C.K., purportedly at the request of C.K and as a result of the father’s generally insensitive comments to C.K. regarding his weight and sexuality. The specific catalyst for C.K.’s sudden refusal to go to his father’s home was that he apparently overheard the father and C.L.K. plotting to keep him away from the mother in whatever way they could, resulting in C.K. not feeling “safe” in the father’s home.

[66] The father now seeks a temporary parenting time order consistent with the status quo that existed between 2017 and 2022. The mother seeks a temporary order stipulating that C.K. reside exclusively with her and suspending the father’s parenting time pending the delivery of the final report of the Children’s Lawyer. The mother also seeks a temporary order restraining the father from contacting or communicating with her or C.K.

[67] It is settled law, and not in dispute on this motion, that a long-standing status quo in relation to parenting time should not be changed prior to trial, absent compelling evidence that a child’s best interests necessitate such a change. Section 16(2) of the Divorce Act directs a court, when conducting a best interests analysis, to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

[68] There is an abundance of material before me to be consider and weigh when deciding what is in C.K.’s best interests on a temporary basis. This includes the voluminous and contradictory evidence of the mother and father and the affidavit evidence of C.L.K. I also have the November 28, 2022 notes of C.K’s family doctor and the submissions of the Children’s Lawyer as to C.K.’s views and preferences.

[69] The preponderance of this evidence leads me to the conclusion that it is in C.K.’s best interests to substantially limit, but not suspend, the father’s parenting time until the Children’s Lawyer’s investigation is complete and a final report delivered to the parties and the court. My reasons for this conclusion follow.

[70] First, the record simply does not support the father’s contention that this entire crisis has been orchestrated by the mother as a result of the father terminating his child support for C.L.K. and C.L.K. then breaking off her relationship with her mother and moving in with the father. The father’s position further includes the suggestion that C.K. has been “coached” or influenced by the mother to achieve her goals in this litigation.

[71] It is not in dispute that C.L.K. had no meaningful contact with the father in the four years prior to October 2022. Obviously, something very significant occurred between C.L.K. and her mother to prompt C.L.K. to make such an abrupt change in residence after not having had meaningful contact with her father for so long. Equally obvious from both the tone and content of C.L.K.’s affidavit is that she is very angry at the mother.

[72] The mother’s December 13, 2022 affidavit provides evidence of very inflammatory comments allegedly made by C.L.K. to the mother when C.L.K. left the mother’s home. These included “I’m going to fuck you over. You’re fucked now”.

[73] Given her history in relation to both her parents, and the current animosity C.L.K. has toward her mother, in my view it would be unsafe to place any weight on C.L.K.’s evidence when addressing the issues on this motion and I decline to do so.

[74] The father contends that C.K. has been “coached” or influenced by the mother to make the allegations he has made. The father suggested that it was “inferred” in the 2019 Children’s Lawyer’s Report that the mother was influencing C.K. I read this report carefully and was unable to find support for such inference.

[75] The father also suggested that the mother influenced C.K. as to what was reported to Dr. St. Jacques on November 28, 2022. Once again, I could find no basis for such a suggestion. Dr. St. Jacques’ notes consistently record reports of the “patient”- that being C.K. I am prepared to assume that the mother was present when C.K. met with Dr. St. Jacques on November 28, 2022. However, to suggest that the mother influenced what C.K., prior to or at this appointment, and that the mother’s prompting was undetected by Dr. St. Jacques, is a leap I am not prepared to make.

[76] Most significantly in my opinion, the Children’s Lawyer, who met with C.K. for two one-hour interviews, clearly stated that she had no concerns that C.K.’s views and preferences were not sincere and independently held. I simply do not accept it as plausible that this 11-year-old boy was “scripted” by the mother prior to the two interviews with the Children’s Lawyer.

[77] Absent the father’s suggestion as to the mother’s motivation and her having “coached” or influenced C.K., the record on this motion supports the conclusion that C.K., for various reasons, had been experiencing stress and anxiety when living at his father’s home for two-week blocks of parenting time in the period of time leading up to the fall of 2022. Unfortunately, in late October/early November 2022, his stress and anxiety increased to the point where he feared his father and feared living in his father’s home.

[78] In and around October 25, 2022, C.K. overheard a troubling conversation between the father and C.L.K. Soon thereafter C.K. asked his mother to change his school from McKellar to Crestview, partially because of bullying at McKellar but primarily because he feared his father would attend McKellar on November 9, 2022 and assume primary care of him and keep him from his mother, consistent with what C.K. apparently overheard his father and C.L.K. planning to do.

[79] I accept that C.K.’s fear was, in all likelihood, irrational. However, I also accept that his fear was sincere. It was disclosed to the mother, it was disclosed to the family doctor and it was disclosed to the Children’s Lawyer. C.K.’s disclosures about his fear were consistent and the reasons he gave for his fear were consistent.

[80] The factors to be considered in determining the best interests of a child include the child’s views and preferences, giving due weight to the child’s age and maturity. This court has the benefit of the submissions of the Children’s Lawyer on this motion. The Children’s Lawyer considered C.K.’s age and maturity, clearly articulated C.K.’s views and preferences to this court and submitted that his views and preferences should be given weight when deciding what is currently in C.K.’s best interests.

[81] Section 16(2) of the Divorce Act directs a court to give primary consideration to a child’s physical, emotional and psychological safety, security and well-being when considering the factors to analyze in determining the best interests of a child. The views and preferences of C.K., as expressed to the Children’s Lawyer and then provided to this court, directly engage C.K.’s emotional and psychological safety, security and well-being. I am satisfied that C.K.’s fears are real to him. They need not be objectively rational.

[82] In the circumstances of this case, I am persuaded that C.K.’s best interests require a temporary change to the long-standing status quo of equally shared parenting time. I am not, however, persuaded that it is in C.K.’s best interests to suspend the father’s parenting time with C.K. From an objective perspective, C.K.’s December 2022 and January 2023 weekends at the father’s home went relatively well. I think it is consistent with C.K.’s best interests that some limited parenting time be maintained with the father while the Children’s Lawyer is completing her investigation and report. I also reject the mother’s request for a temporary restraining order against the father. In my view, there is insufficient evidence to support this request. In any event, to do so would send the wrong message in this very unfortunate dispute.

[83] A temporary order shall issue as follows:

1. The mother shall have sole decision-making responsibility for the child C.K.
2. C.K. shall reside primarily with the mother. The father shall have parenting time with C.K. every second weekend from Friday at 5:00 pm to Sunday at 4:00 pm, on weekends the father is not working out of town, beginning March 3, 2023. The father shall not communicate with C.K. when C.K. is in the mother’s care unless the communication is initiated by C.K.;
3. C.K. shall continue to be enrolled at Crestview Public School;
4. The father’s 2021 income was $112,931 and the mother’s 2021 income was $20,100. Pursuant to the Federal Child Support Guidelines, the father shall pay to the mother child support in the amount of $1,013 per month, beginning November 1, 2022. The father shall receive a credit for $708 per month child support paid in November and December 2022 and in January 2023. I decline the father’s request to reduce his child support obligation to account for the transportation costs of exercising his parenting time;
5. The father shall pay to the mother 84% of the s. 7 expenses for the child beginning November 1, 2022:
6. The mother and father shall exchange proof on income on an annual basis on or before June 1 of each year, beginning in 2023;
7. The father shall designate C.K. as the sole, irrevocable beneficiary of his employment life insurance and shall maintain C.K. as a dependent under his employment extended health and dental plans.

[84] The parties shall schedule a settlement conference immediately following the receipt of the final Report of the Children’s Lawyer.

COSTS

[85] In my view, there has been divided success on the parties’ motions. I encourage the parties to resolve the issue of costs. If they are unable to do so, they shall file written Costs Submissions, not to exceed five pages, exclusive of their respective Bills of Costs and Costs Outline. The mother’s Costs Submissions shall be filed within 14 days of the release of this decision; the father’s within 7 days thereafter.

The Honourable Mr. Justice J.S. Fregeau Released: February 21, 2023