Court File and Parties

COURT FILE NO.: FC-17-44-1 DATE: 2023/03/28 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: A.M., Applicant -and- C.D., Respondent

COUNSEL: Vanessa Baker-Murray, for the Applicant Andre Lozano, for the Respondent

HEARD: March 2, 2023

Reasons for Decision

ENGELKING. J.

[1] This is a Motion to Change (“MTC”) the Final Order of Justice Mackinnon dated February 22, 2019, brought by the Applicant Mother, Ms. M., seeking to vary the order of joint custody to one of sole decision-making authority to her and varying the parenting schedule for the parties’ child, A.D., who is eight years of age.

[2] The Respondent Father, Mr. D., seeks an order dismissing the mother’s motion, with costs on a full indemnity basis. The only change requested by him in his Response to Motion to Change pertained to paragraph 15 of the February 22, 2019, Final Order of Justice Mackinnon relating to travel with the child. However, he neither provided evidence nor made any submissions in this regard at the hearing.

Background

[3] Ms. M. and Mr. D. have one child together, A.D., born in October of 2014. They were never married nor resided together.

[4] On February 22, 2019, the parents consented to the Final Order of Justice Mackinnon which contained the following provision with respect to decision-making authority:

1. C.D. and A.M. (the parents) shall have joint custody of the child, A.D., born on October **. 2014. If, after meaningful discussions, the parents are unable to agree on a decision related A.D.’s health, education, or religion, A.M. shall have final decision-making responsibility relating to A.D.’s education and religion, and C.D. shall have final decision-making responsibility relating to A.D.’s health.
2. The parent who is caring for A.D. at any given time may make minor day-to-day decisions that fall outside of the scope of major decision anticipated under paragraph two without consulting the other parent. This includes decisions such as involving the child in their religious activities and bringing the child to the doctor for ailments.

[5] Ms. M. seeks to vary this order to one in which she would have sole decision-making responsibility for the child.

[6] With respect to Mr. D.’s parenting time, Justice Mackinnon’s order provided that A.D. would be with him every Tuesday after school to Thursday morning (with Ms. M. having her from after school on Wednesday to 6:00 p.m.) and every second Friday after school to 11:30 a.m. on Sunday morning, as well as specified holiday time.

[7] Ms. M. seeks to vary that to Mr. D. having parenting time every Wednesday after school to Thursday morning and every second Friday after school until 11:30 on Saturday morning, as well as additional time as agreed upon by the parties and some variations to the holiday schedule.

[8] Ms. M.’s evidence, not disputed by Mr. D., is that the parties have never consistently followed the parenting schedule as set out in the 2019 Final Order. Not long after the order was made, Ms. M. and Mr. D. altered it to Mr. D. having parenting time from Tuesday after school to Wednesday morning, Friday after school to Saturday morning and every second Saturday until Sunday morning. However, they also did not consistently follow this alternate schedule either.

[9] According to Ms. M., for a period, Mr. D. would have A.D. from after school on Wednesday until Thursday morning, but this was not continued as A.D. did not want to go with Mr. D. and would throw crying fits.

[10] For a couple of stretches of time in 2021 and early 2022, Mr. D. expressed no desire to have parenting time with A.D. and they would not hear from him for weeks at a time. In January of 2021, he did not see A.D. for ten days because he had an argument with his then partner. According to Ms. M., Mr. D. saw little of A.D. between December of 2021 and April of 2022.

[11] Around the spring of 2022, the parents tried to again implement a schedule where Mr. D. would have A.D. on Tuesday night, Friday night and every second Saturday, however, A.D. was not comfortable staying over at Mr. D.’s two nights a week, so they changed it to Tuesday nights to Wednesday mornings. Some time later, when Ms. M. attempted to reintroduce the Friday nights, Mr. D. declined on the basis that he played recreational hockey on Friday nights. Ms. M.’s evidence is that Mr. D. has not had a Friday overnight visit since October 21, 2022.

[12] Since December of 2022, Mr. D. has exercised little parenting time on the weekends, sometimes requesting it to change to weekends when Ms. M. is to have her and then not following through, though he has consistently exercised parenting time on Wednesdays to Thursdays.

[13] Although Mr. D. made several bold statements about Ms. M. either preventing his parenting time or exhibiting “alienating” behaviour, he provided no specifics. Nor did he dispute Ms. M.’s above noted chronology as to how parenting time has gone since the order of Justice Mackinnon was made.

Issue #1 – Should there be a change in decision-making authority?

[14] Ms. M. submits that a change to sole decision-making authority to her is necessary based on an evolution in Mr. D.’s thinking and beliefs since the Final Order of Justice Mackinnon was made. Specifically, she submits that Mr. D. has become an adherent to “QAnon and subscribes to a number of conspiracy theories relating to public health, medicine, the education system, and the government”. [1] She submits, further, that this evolution constitutes a material change of circumstances such that the situation should be determined de novo. Ms. M. asserts that she would have never consented to an order setting out that Mr. D. have final decision-making authority over A.D.’s health if he had been an active QAnon believer in February of 2019. Examples provided by Ms. M. of Mr. D.’s views and beliefs negatively impacting A.D. include:

• Mr. D. has vehemently refused to allow A.D. to be vaccinated against COVID-19, notwithstanding that it has been declared safe and effective for children her age by the Governments of Canada and Ontario [2];
• Mr. D. has threatened to destroy anyone who tests A.D. for COVID-19 [3];
• Mr. D. has stated that he believes that checking A.D.’s temperature with an infrared thermometer would prevent her pineal gland from opening and cause her harm [4];
• Mr. D. has repeatedly stated that A.D. will no longer be receiving the flu shot during influenza season, which she has received in the past [5];
• In June of 2020, Mr. D. refused to give A.D. antibiotics she had been prescribed for a urinary tract infection, which resulted in Ms. M. having to take the child to CHEO for treatment [6];
• Mr. D. refused to take A.D. to an optometrist after her teachers had been advising that she was having a difficult time reading and was experiencing frequent headaches. A.D. was prescribed glasses in October of 2021 when Ms. M. took her to an optometrist, which has significantly helped with her vision and headaches [7];
• Mr. D. has taken no steps to have A.D. assessed or receive counselling, either from the University of Ottawa Centre for Psychological Services and Research to which Ms. M. reached out, or from his own resources, despite A.D. exhibiting signs of attention deficit hyperactivity disorder [8]; and,
• Mr. D. has messaged to A.D. that she will never have to worry about having surgery, after her friend had his appendix removed.

[15] With respect to the COVID-19 issue, Ms. M. brought an urgent motion for an order permitting her to have A.D. vaccinated and to provide subsequent booster shots. Although Justice Hackland indicated that he would given considerable weight to Ms. M.’s belief that A.D.’s best interests in terms of her health are protected by following Public Health Guidelines, and although he did take judicial notice of “the efficacy of this vaccine [Pfizer] to mitigate the serious risks to some children who become infected by the coronavirus and to reduce the spread of the virus to children’s teachers and older relatives”, he declined to make the order on an urgent basis based largely upon the rapidly changing environment of the COVID-19 pandemic subsiding and vaccine and masking mandates being withdrawn at the time of the hearing. [9]

[16] Mr. D. seemed in his materials and some of his submissions to think that this motion was a revisiting of that issue, which in his view had already been decided by Justice Hackland. He indicated more than once in his affidavit sworn on February 28, 2023, that Ms. M. was attempting “to relitigate the same issue she lost last year”. [10] This MTC is not about whether an order should be made for A.D. to receive the Pfizer vaccine; it is about whom should have the authority to make this and other decisions related to A.D.’s health. It is also about whether there should be a variation of Mr. D.’s parenting time as ordered by Justice Mackinnon.

[17] Both are predicated on whether there has been a material change of circumstances since the date the Final Order was made. There is no question that there has been such a change. Mr. D.’s thinking and philosophy has altered since the order such that decisions made by him may not necessarily be made in the best interests of the child. It is abundantly clear from the correspondence, text messages or emails attached to Ms. M.’s affidavit, that when she is attempting to simply discuss logistics around exchanges or parenting time, or to decide what to do about an issue, Mr. D. inundates her with his views and/or shares with her social media postings on the COVID-19 vaccines, the very kinds of postings which the Ontario Court of Appeal has recently found at paragraph 19 of J.N. and C.G., 2023 ONCA 77, “should be afforded no weight at all”. The views and/or social media posts Mr. D. shares with Ms. M. also extend to the requirement to wear masks for certain activities. Indeed, Mr. D. took to keeping A.D. from school, not because of the risk of becoming infected with COVID-19, but because she would be required to wear a mask at school, something to which he was vehemently opposed.

[18] Mr. D. submitted that A.D. is fine, in other words, the proof is in the pudding, so to speak. He submitted further that none of the decisions which he has made or not made have done harm to A.D. With this, I disagree. The most blatant examples of A.D. suffering harm from Mr. D.’s actions or inactions as they relate to her health are that she required treatment from CHEO due to him not giving her the medication prescribed for her urinary tract infection, and that her vision and headaches, to which she had been subjected while Mr. D. did not arrange for her to see an ophthalmologist, improved upon her use of glasses. While Mr. D. submitted that he was not opposed to A.D. wearing glasses, he objected to Ms. M. making the appointment with the ophthalmologist. He, however, took no steps to address A.D.’s issue. A.D. also fell behind at school, particularly in French, due to her absences.

[19] In addition to the actual harm caused to A.D., Ms. M.’s evidence is that based on Mr. D.’s views, and particularly his distrust of governmental institutions, public health bodies and education systems, it is impossible to discuss issues which require a decision with him in a meaningful way. Joint decision-making is, therefore, in her view no longer an option.

[20] Mr. D. is obviously free to believe whatever he wishes. However, when his beliefs interfere in his ability to make decisions which meet the needs of the child, he can not be left with that primary responsibility. Additionally, this in not just a situation of the parents having a different point of view on a specific issue, as is submitted by Mr. D. Rather it is about a complete inability to have a reasoned discussion to arrive at a reasoned decision. As a consequence, for the reasons outlined above, I find that the Final Order of Justice Mackinnon should be varied to one in which Ms. M. has sole decision-making authority for A.D.

Issue #2 – Should there be a change in Mr. D.’s parenting time?

[21] In the Final Order of Justice Mackinnon dated February 22, 2019, Mr. D. was to have parenting time with A.D. every Tuesday after school until Thursday morning and every second Friday after school until 11:30 a.m. on Sunday morning, as well as specified holiday parenting time.

[22] Mr. D. boldly asserts in his affidavit: “The Applicant attempts to remove me from every [sic] seeing A.D.”. [11] However, he only included one undated text message exchange between him and Ms. M. wherein the latter is attempting to see if the former will pick A.D. up after school, and then says “Actually. She just told me she doesn’t want to go. She wants me to get her. Sorry”, in support of his contention. Mr. D.’s evidence is, in fact, sorely lacking in specifics regarding Ms. M. interfering in or limiting his parenting time. Meanwhile, Ms. M.’s affidavit is replete with examples of her attempting to arrange parenting time with Mr. D., the vast majority of which are supported by text communications between them attached as exhibits. Mr. D., additionally, did not respond in his affidavit to Ms. M. stating that he declined to have overnight parenting time in favour of playing hockey on Friday nights, or that he had sent A.D. home early on evenings when he wanted to go out on dates. As I have indicated above, moreover, Mr. D. did not really dispute Ms. M.’s chronology of how the parenting time schedule has changed since the Final Order of Justice Mackinnon.

[23] This is not an issue simply about the parties’ “differing views” constituting a material change, as is alleged by Mr. D.; it is about whether there has been a change since the Final Order was made such that it should be varied now. It is clear that there has been a material change, in that the Final Order was never really followed by the parties. Although Ms. M. asserts that Mr. D.’s change in accommodation based on his separation from a former partner is relevant to this issue, I do not agree. Indeed, I agree with Mr. D. that he should be able to exercise his parenting time wherever he lives, so long as it is safe for A.D., of course. What is more relevant is that the parties have exercised parenting time with A.D. on a very flexible schedule since the Final Order was granted, mostly in keeping with A.D.’s expressed wishes and comfort level. Ms. M. now seeks a change to the order to essentially confirm what has been transpiring for some time, that is one overnight during the week and one on alternating weekends. In her Notice of Motion, Ms. M. seeks for the holiday parenting schedule contained in Justice Mackinnon’s order to remain in place.

[24] I am directed by section 24 of the Children’s Law Reform Act R.S.O. 1990, c.C.12, (“CLRA”) to apply the best interests of the child to any order regarding parenting. An underlying premise is that meaningful time with each of her parents is in the child’s best interests. The evidence from Ms. M. is ample enough, however, to support that there should be a change in weekday parenting time to one overnight. Mr. D. has consistently been having parenting time with A.D. from Tuesday after school to Wednesday morning for some time now, and this has been going very well. I am of the view that the Final Order should be varied to reflect this reality.

[25] I am not as convinced, however, that a change is necessary to Mr. D.’s alternating weekend parenting time. Subsection 24 (6) of the CLRA provides: “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.” That Mr. D.’s circumstances have changed such that A.D. will not necessarily be visiting with her half-siblings or their mother should not negatively affect her opportunity to spend time with her father. Although Mr. D. has sometimes belatedly sought to change weekends with Ms. M., adversely affecting her plans, he has still generally exercised some parenting time on alternating weekends. Although he has also sometimes chosen not to exercise parenting time on Friday evenings or A.D. has sometimes chosen not to spend full weekends with him, in keeping with subsection 24(6) of the Act, I am of the view that both should be afforded the opportunity to continue spending alternating weekends together. I am not, therefore, inclined to change that term of Justice Mackinnon’s order. A.D. should, moreover, be encouraged by Ms. M. to spend alternating weekends with her father as was contemplated by their consent Order in 2019.

Order

[26] For the above reasons, there shall be a Final Order as follows:

1. Paragraph 1 of the Final Order of Justice Mackinnon dated February 22, 2019, shall be varied to read: “A.M. shall have sole decision-making authority over the child, A.D., born October [**], 2014, related to her health, education or religion.”
2. Paragraph 5 a. of the Final Order of Justice Mackinnon dated February 22, 2019, shall be varied to read: “Every Tuesday after school to Wednesday morning; and”

Costs

[27] If the parties are unable to reach an agreement as to the liability or quantum for cost of the MTC by April 14, 2023, they may make written submissions of no more than three double-spaced pages, along with copies of their bills of costs and offers to settle, to me at intervals of 10 days from that date and I will make an order.

Engelking J. Date: March 28, 2023

References

[1] Affidavit of A.M. sworn on February 21, 2023, paragraph 8 [2] Ibid., paragraph 20 [3] Ibid., paragraph 22 [4] Ibid. [5] Ibid., paragraph 23 [6] Ibid., paragraph 24 [7] Ibid., paragraph 25 [8] Ibid., paragraph 26 [9] A.M. v. C.D., 2022 ONSC 1516 at paragraph [10] Affidavit of C.D. sworn on February 28, 2023, paragraphs 26, 46 and 48 [11] Affidavit of C.D. sworn on February 28, 2023, paragraph 34