COURT FILE NO.: FC-16-FS143-4

DATE: 2023/04/05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

CHRISTINA FAITH BLASKAVITCH

Applicant

– and –

CHRISTOPHER DONALD SMITH

Respondent

Applicant is self-represented

Jessica Fuller, for the Respondent

HEARD: January 31, February 1-4, April 20, 21, 22, and 27-28, and August 15, 17-19 and 22, 2022 (By Videoconference)

REASONS FOR DECISION

Corthorn J.

Introduction

[1] The parties met in early 2013 and were married prior to the end of that year. The parties have one child: Nathan Ryan Blaskavitch Smith, born on May 3, 2015. The parties separated in September 2015 and are now divorced.

[2] As the court file number indicates, the litigation between the parties was commenced in 2016. Numerous interim and three final orders have been made to date. The three final orders are as follows:

Apr. 28, 2017 - Justice Robertson (“the Robertson order”)

Aug. 1, 2019 - Justice MacEachern (“the MacEachern order”)

Sept. 30, 2019 - Justice James (“the James order”).

[3] Central to this litigation – both historically and at present – are the diametrically opposed views of the parties with respect to decision-making and a parenting schedule for Nathan. Flowing from the disputes on those issues are the parties’ disputes regarding child support and Section 7 expenses.

[4] These reasons address the issues raised by Ms. Blaskavitch in her May 2021 motion to change and by Mr. Smith in his June 2021 response to motion to change. In summary, the issues are as follows:

1. Decision-making

In 2017, pursuant to the Robertson order, Ms. Blaskavitch was granted sole decision-making (then referred to as custody) for Nathan for a year. The Robertson order provided that the parties were to then transition to joint decision-making. In 2019, MacEachern J. ordered that the parties have joint decision-making (referred to again as custody).

Both parties now seek sole decision-making for Nathan.

2. Parenting Schedule

The parenting schedule prescribed in the Robertson order reflected that Nathan was a toddler (two years old) when the order was made. The parenting schedule set out in the MacEachern order reflected that Nathan was about to enter junior Kindergarten when the order was made.

The parenting schedule ordered by James J. in September 2019, provides that Nathan is to reside primarily with Mr. Smith. The James order provides that Ms. Blaskavitch is to have parenting time with Nathan two successive weekends out of every three weekends. That parenting time begins at 5:30 p.m. on Friday and ends at 4:00 p.m. on Sunday.

On her motion to change, Ms. Blaskavitch seeks a week-about schedule, with the change made at 1:30 p.m. each Sunday. Mr. Smith asks that the parenting schedule be changed so that Ms. Blaskavitch has parenting time with Nathan every second weekend from Friday at 5:30 p.m. to Sunday at 4:00 p.m.

3. Child Support / Section 7 Expenses

The parties ask the court to address the quantum of child support, arrears of child support, and the basis upon which Section 7 expenses are shared (equally or proportionate to income).

4. Restraining Order

Mr. Smith asks the court to find that, since September 2019, when the James order was made, Ms. Blaskavitch’s behaviour has been of sufficient concern to support granting a restraining order pursuant to s. 35 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).

Ms. Blaskavitch requests that a restraining order, if made, be mutual. In support of that request, Ms. Blaskavitch relies on s. 35 of the CLRA.

5. Police Enforcement

Ms. Blaskavitch asks the order made be police enforceable. Mr. Smith requests that there be no police enforcement clause; he is concerned that Ms. Blaskavitch will frequently resort to the clause, including as a self-help mechanism.

6. Vexatious Litigant

Mr. Smith asks the court to consider Ms. Blaskavitch’s litigation conduct, specific to this proceeding, and make an order prohibiting Ms. Blaskavitch from continuing this proceeding without first obtaining leave of the court to do so. He also asks for other relief to restrict Ms. Blaskavitch’s involvement in proceedings generally in the future.

7. Other Forms of Relief

Ms. Blaskavitch requests other forms of relief, not set out in her motion to change. The other forms of relief include, for example, an order requiring Mr. Smith to undergo psychometric testing and terms addressing the extent to which Mr. Smith is required to disclose his work schedule to Ms. Blaskavitch.

[5] For a change to be made to a term of a final order, the court must be satisfied that there has been a material change in circumstances since the date on which the final order was made. Before addressing the issues specific to this motion, I will first review what the term “material change” means.

Material Change in Circumstances

a) The Law

[6] In Gordon v. Goertz,[^1] the Supreme Court of Canada sets out the two-stage inquiry on which a court must embark when determining a motion to change an order related to decision-making and/or a parenting schedule. At the first stage of the inquiry, the court determines whether there has been a material change in the circumstances of the child since the date on which the subject order was made.[^2] Only if that threshold condition is met, does the court then move on to the second stage of the inquiry and determine whether, in the new circumstances, it is in the best interests of the child that the existing order be varied.^3

[7] There are three components to the first stage of the inquiry. At the first stage, the court must be satisfied of each of the following criterion:

(1) A change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.[^4]

[8] If the court moves to the second stage of the inquiry, it considers “the matter afresh[,] without defaulting to the existing arrangement”.[^5] The court considers the matter anew, based on the circumstances that presently exist.[^6] The court must also consider the findings of fact made by the judge whose order is the subject of the motion.[^7]

[9] To determine the child’s best interests, the court considers how the material change (established at stage one) impacts on all aspects of the child’s life: “all factors relevant to [the original] order fall to be considered in light of the new circumstances.”[^8]

[10] At both stages of the inquiry, the court’s focus is on the child – the best interests of the child and the parties’ ability, respectively, to meet the child’s needs. Simply put, the determination is child focused. I will address the law with respect to the best interests of the child in a later section of these reasons.

b) The Evidence

[11] In her submissions, Ms. Blaskavitch did not articulate the material change or changes upon which she relies in support of the relief she requests. It is clear, however, that Ms. Blaskavitch relies on Mr. Smith’s conduct since September 2019 in support of the relief she requests on the motion to change.

[12] In support of the relief Mr. Smith requests, including the proposed changes to terms of the final orders, he relies on changes in Ms. Blaskavitch’s behaviour over time. Mr. Smith alleges that those changes are material to Nathan’s best interests and to Ms. Blaskavitch’s ability to meet Nathan’s needs.

[13] The parties’ respective conduct is relevant not only to the requests for changes to terms of the final orders; it is relevant to Mr. Smith’s request for a restraining order and for an order restricting Ms. Blaskavitch from continuing this proceeding without first obtaining leave from the court.

[14] The motion to change was originally scheduled to be heard over four days; it was ultimately heard over 15 days. The evidence includes multiple affidavits and oral testimony from the parties.

[15] The parties’ respective affidavits include many exhibits. The parties were informed at the outset of the hearing that only documents entered as numbered exhibits, through oral testimony, would be considered evidence on the motion. A total of 95 numbered exhibits were entered in evidence.

[16] In providing these reasons, the court’s function is not that of a transcriptionist. The court is not required to set out all the evidence upon which it relies in support of its decision.

[17] Some of the evidence relevant to the determination of decision-making is also relevant to the issues of the parenting schedule, a restraining order, and restrictions on continuation of the proceeding. I will therefore first determine the issue of decision-making. Before doing so, I shall provide an overview of the parties as witnesses.

The Parties as Witnesses

[18] Observations about the parties as witnesses appear in other sections of these reasons. In addition to those observations, I rely on the following assessments of their respective qualities as witnesses.

[19] During examination in chief, it was a challenge for Ms. Blaskavitch to remain focussed on the issues to be determined on the hearing. She had to frequently be re-directed so that her evidence addressed matters relevant to the issues to be determined. In cross-examination, Ms. Blaskavitch at times did not answer in a direct manner, was flippant, was argumentative and obtuse, and failed to acknowledge the obvious.

[20] Ms. Blaskavitch was determined to bring matters to the court’s attention that are personal to her, but irrelevant to the issues to be determined. She was undeterred in that regard, despite being directed by the court on several occasions to stay focussed on the issues at hand.

[21] In addition, on any number of occasions, Ms. Blaskavitch made disparaging remarks about the court and prior decisions in this matter. Once again, she did so despite being warned of the impropriety of such remarks.

[22] I found Mr. Smith to be clear in his responses both to his counsel when examined in chief and to Ms. Blaskavitch when she conducted her cross-examination. I found that Mr. Smith was not advancing a particular personal agenda; instead, he remained focussed on the issues to be determined and was responsive regardless of who was asking him questions.

[23] Mr. Smith did not attempt to avoid dealing with his role in historical events of adult conflict, including some which occurred when Nathan was present. Mr. Smith took responsibility for his actions, expressed remorse for his behaviour, and was unshaken with respect to his ongoing efforts to modify his behaviour, in particular when responding to the more challenging aspects of Ms. Blaskavitch’s behaviour.

[24] There is minimal requirement to resolve factual disputes between the parties. In that regard, there is not a significant element of preferring one party’s evidence over the opposing party’s evidence. The determination of the issue involves comparing and contrasting the parties’ respective lifestyles, ability to care for Nathan, ability to put Nathan’s interests ahead of their own, and interpersonal skills as they relate to individuals involved in Nathan’s day-to-day existence.

Issue No. 1 – Decision-Making

a) The Existing Order

[25] Decision-making was addressed in both the Robertson order and the MacEachern order. In 2017, and on the consent of the parties, decision-making was addressed as follows in the Robertson order:

1. The Applicant mother shall have sole custody of the child of the relationship, namely Nathan Ryan Blaskavitch-Smith, born May 3, 2015, and the child shall have primary residency with the Applicant mother, subject to access to the Respondent father as set out below.

The parties will make important decisions about the child’s welfare together, including his education, major non-emergency health care, major recreational activities and religious activities. The mother will first consult the father in respect to all important decisions and will seek his input. It is only after this consultation process that the mother will be at liberty to make a decision. She will advise the father of her decisions in writing.

2. On the one-year anniversary of the date of the Final Order, the parties shall transition to joint custody, without the requirement for a material change in circumstance. During this time, the parties are expected to attend and complete a parenting communication course and the expense is to be shared by the parties.

3. Day to day decisions affecting the welfare of the child will be made by the parent residing with the child at the relevant time. If the child needs emergency medical care while with one parent, that parent will promptly notify the other of the emergency.

[26] The Robertson order also provided that the parenting schedule, set out in para. 7 of the order, would be reviewed on the one-year anniversary of the order. As explained in para. 8 of the Robertson order, the purpose of that review was to provide “[increased] access for [Mr. Smith] commensurate with the stages of [Nathan’s] development.” By the one-year anniversary of the date of the Robertson order, Nathan was one month shy of his third birthday.

[27] In May 2018, shortly after the one-year anniversary of the date of the Robertson order, Mr. Smith commenced a motion to change. He sought expanded parenting time with Nathan in accordance with the terms of the Robertson order.

[28] In response to Mr. Smith’s motion to change, Ms. Blaskavitch sought the following relief: (a) a reduction in Mr. Smith’s parenting time with Nathan, (b) sole custody of Nathan, and (c) permission to move with Nathan to Florida. On the eve of trial, Ms. Blaskavitch abandoned her request for permission to move with Nathan to Florida and sought permission, instead, to move with Nathan to Ottawa.

[29] MacEachern J. concluded that there had not been a material change warranting any change to the parties’ joint custody of Nathan, effective April 2018, as per the Robertson order.[^9] Paragraph 1 of the MacEachern order reflects that conclusion:

Paragraphs 1 and 2 of the Final Order, dated April 28, 2017, shall be deleted and replaced as follows:

1. The Applicant, Christina Blaskavitch, and the Respondent, Christopher Smith, shall have joint custody of the child of the relationship, namely Nathan Ryan Blaskavitch-Smith born May 3, 2015.

[30] MacEachern J. ordered that Nathan would attend daycare and be registered for school in Petawawa.[^10] Justice MacEachern refused Ms. Blaskavitch’s request for an order permitting her to move with Nathan to Ottawa.

[31] In addition, at para. 2 of her order, MacEachern J. changed the parenting schedule. The MacEachern order provided for an increase in Mr. Smith’s parenting time on a fixed schedule for the period from July 2019 through July 2020. MacEachern J. ordered that, effective July 1, 2020, Nathan would be in the care of each parent on “an equal time-sharing, on a week-on, week-off, basis.”[^11]

[32] In September 2019, James J. heard two motions: (a) Mr. Smith’s motion for a finding that Ms. Blaskavitch was in contempt of a court order, because of her move, with Nathan to Ottawa in July 2019; and (b) Ms. Blaskavitch’s motion for an order permitting her to move, with Nathan, to Ottawa pending the outcome of Ms. Blaskavitch’s appeal from the decision of MacEachern J.

[33] Justice James granted Mr. Smith’s motion to change and dismissed Ms. Blaskavitch’s motion. The result was a change to para. 9 of the MacEachern order and the parenting schedule. James J. made the following order:

9. The regular schedule for the parties’ parenting time shall be as follows:

a. Nathan shall primarily reside with Mr. Smith in Petawawa effective immediately.

b. Ms. Blaskavitch shall have weekend access, commencing the first weekend after Nathan moves to Petawawa, in sets of two successive weekends with Mr. Smith keeping Nathan in his care every third weekend.

c. When a holiday falls on either the Monday or Friday of a weekend that Ms. Blaskavitch has access, the access period shall be extended to include the holiday.

d. Ms. Blaskavitch’s first access weekend will be the weekend of October 11-14, 2019, which includes extended access for the Thanksgiving Day holiday.

[34] The net effect of the Robertson, MacEachern, and James orders is that the parties have joint custody (decision-making) of Nathan; Nathan resides primarily with Mr. Smith in Petawawa; and Ms. Blaskavitch has parenting time with Nathan two successive weekends out of every three (Friday at 5:30 p.m. to Sunday at 4:00 p.m.).

[35] Both parties now seek sole decision-making.

b) The Threshold Question: Has there been a change which satisfies the three-part criteria for a “material change”?

i) The Positions of the Parties

▪ Ms. Blaskavitch

[36] In support of her request for sole decision-making, Ms. Blaskavitch relies on Mr. Smith’s conduct since September 2019, when the parties were before James J. Ms. Blaskavitch relies on the following alleged conduct:

• Mr. Smith’s involvement with the Military Police when they attended at Ms. Blaskavitch’s Ottawa home in March 2020;

• The existence of a “mole” inside the Canadian Armed Forces (“CAF”) assisting Mr. Smith in what Ms. Blaskavitch describes as his multiple forms of harassment of her. Ms. Blaskavitch alleges that there has been a “full-blown weaponization” of CAF against her; and

• Mr. Smith’s refusal to communicate with her.

▪ Mr. Smith

[37] Mr. Smith acknowledges that conflict between the parties has always been present – including when the parties were before Robertson, MacEachern, and James J. The material change upon which Mr. Smith relies is the significant escalation in Ms. Blaskavitch’s behaviour since September 2019. Mr. Smith submits that Ms. Blaskavitch’s concerning behaviour has escalated to the point that the behaviour is frequently directed towards others and negatively impacts on Nathan.

[38] Mr. Smith relies, for example, on the behaviour of Ms. Blaskavitch that resulted in her no longer being employed by CAF, in her eviction from military housing in Ottawa, and in potentially compromising Nathan’s spot with his daycare provider. Mr. Smith’s position is that the changes in Ms. Blaskavitch’s behaviour satisfy the three criteria for a material change.

ii) Historical / Prior Findings Related to the Parties’ Respective Conduct

[39] In her reasons, MacEachern J. expressed concerns about the continuing conflict between the parties.[^12] She concluded that Mr. Smith’s conduct had improved since the date of the Robertson order but could use further improvement.[^13] MacEachern J. concluded that Mr. Smith was taking steps towards continued improvement in this behaviour.[^14]

[40] With respect to Ms. Blaskavitch’s conduct, MacEachern J. concluded that it was not “motivated by the child’s best interests, but rather by Ms. Blaskavitch’s desire to minimize Mr. Smith’s contact with [Nathan] and role in his life”.[^15] As to her expectations regarding Ms. Blaskavitch’s conduct in the future, MacEachern J. said the following: “Although I am concerned about Ms. Blaskavitch’s conduct, it is reasonable to expect her conduct, and ability to make decisions jointly with Mr. Smith, to improve with the release of this decision that resolves the issues that have given rise to such conflict over the past two years.”[^16]

[41] Approximately one month after the release date of MacEachern J.’s reasons, the parties were before James J. for two days. Given that timing and the nature of the motions before James J., it is not surprising that he did not address in detail the parties’ historical conduct. James J. focused in part on Ms. Blaskavitch’s unilateral decision to move with Nathan to Ottawa and her efforts to remain in Ottawa pending the determination of Ms. Blaskavitch’s appeal from the decision of MacEachern J.

[42] James J. emphasized the findings made by MacEachern J. – only one month earlier:

[41] In my view, two central pillars of Justice MacEachern’s decision are that it is in Nathan’s best interests to live and go to school in Petawawa and that he should have more contact with Mr. Smith. The possibility that he should have less contact with Ms. Blaskavitch was not part of the landscape during the trial. Also, not part of the landscape during the trial was the possibility of Mr. Smith becoming Nathan’s primary parent. Now it is.

[42] I appreciate that Mr. Smith did not request to become Nathan’s primary parent in his efforts to spend more time with his son. He was not seeking to displace Ms. Blaskavitch although Justice MacEachern found that Ms. Blaskavitch sought to marginalize Mr. Smith. As a result of Ms. Blaskavitch’s move to Ottawa, it seems to me that the only way to put the core of Justice MacEachern’s findings into action is to direct that Nathan be returned to Petawawa and placed in the primary care of his father.

[43] The order made by James J. reflects the conclusion set out in the final sentence of the paragraph quoted immediately above.

[44] How have the parties conducted themselves since September 2019 and to what extent is their respective conduct relevant to the determination at stage one of the material change inquiry?

iii) The Parties’ Respective Conduct Since August / September 2019

[45] The court does not hold either party to a standard of perfection when assessing their respective conduct. Neither party suggested that their personal conduct measures up to a standard of perfection. The parties differ, however, in the extent to which they are each prepared to take responsibility for their respective conduct. They also differ as to the extent to which their respective conduct since September 2019 is relevant to Nathan’s best interests and impacts their ability to meet his needs.

[46] Mr. Smith did not attempt to explain away any of his conduct that constituted less than full compliance with the court orders in effect over time. For example, Mr. Smith acknowledged that Ms. Blaskavitch was deprived of some of her parenting time with Nathan because of Mr. Smith’s trip, with Nathan, to see relatives in Nova Scotia in August 2021.

[47] Mr. Smith’s approach to and execution of those travel plans resulted in an encroachment on Ms. Blaskavitch’s regular parenting time with Nathan. At least some, if not all of the time lost was added to another segment of Ms. Blaskavitch’s parenting time following Mr. Smith’s return from Nova Scotia.

[48] Mr. Smith’s conduct in that regard was not in compliance with the parenting schedule. His conduct is, however, understandable. By the summer of 2021, Ms. Blaskavitch’s behaviour had escalated and normal, civil communication with her regarding even the slightest change to the parenting schedule was not possible.

[49] As another example, Mr. Smith did not deny or attempt to minimize his involvement in an incident that occurred during an exchange, with Nathan, at the Antrim Truck Stop. Mr. Smith acknowledges that he was driving his partner’s vehicle when one of the tires ran over Ms. Blaskavitch’s foot. Mr. Smith’s account of the incident includes that Ms. Blaskavitch deliberately placed her foot in the path of the tire after the vehicle was already in motion.

[50] Ms. Blaskavitch, on the other hand, frequently points to Mr. Smith as the cause of difficulties or challenges she has encountered in the past 3.5 years. For example, Ms. Blaskavitch blames Mr. Smith for the fact that she is no longer employed by CAF. I find that, in doing so, Ms. Blaskavitch ignores aspects of her conduct which contributed to, if not solely caused, her career within the CAF to end. Ms. Blaskavitch’s conduct includes the following:

• Making negative comments on social media about members of the military;

• Sending emails with inappropriate content to superior officers;

• Involvement with neighbours in military housing which led to criminal charges; and

• Criminal charges made against her with respect to a member of the military police.

[51] Ms. Blaskavitch’s conduct with respect to her career in the military is reviewed in a later section of these reasons. I find that Ms. Blaskavitch alone is responsible for the difficulties encountered and challenges faced in relation to her career in the military since September 2019.

[52] There is simply no credible evidence before this court to support a finding that Mr. Smith in any way played a role in Ms. Blaskavitch’s loss of her career in the military. Nor is there any credible evidence to support a finding that Mr. Smith caused the difficulties faced and challenges encountered by Ms. Blaskavitch since September 2019.

[53] In both her written materials and viva voce testimony, Ms. Blaskavitch repeatedly referred to “Federal influence” in this proceeding and in her life generally. Ms. Blaskavitch points to the conduct of Federal actors as the reason for the twists and turns in her life during the past 3.5 years. In doing so, Ms. Blaskavitch attempts to avoid responsibility for life choices, including those personal to her and those which impact Nathan’s well-being.

[54] I turn next to consider the criteria for a “material change” at stage one of the inquiry.

iv) The Three Criteria for a Material Change

▪ Has there been a change in the condition, means, needs or circumstances of the child and/or the ability of Mr. Smith to meet those needs?

[55] As I have already noted, Ms. Blaskavitch did not articulate the material change or changes upon which she relies in support of her request for a change from joint decision-making to her having sole decision-making. Ms. Blaskavitch highlighted challenges she experiences because of what she describes as Mr. Smith’s refusal to communicate with her about Nathan.

[56] The evidence does not support a finding that Mr. Smith refuses to communicate with Ms. Blaskavitch. As will be seen from the discussion below of the parties’ conduct since September 2019, Ms. Blaskavitch at times inundates Mr. Smith with electronic communication. Understandably, Mr. Smith does not respond to every single communication he receives from Ms. Blaskavitch. When faced with a barrage of incoming communication, Mr. Smith keeps his responses to a minimum and brief; his communication is directed at attempting to bring the barrage to an end.

[57] There is no evidence to support a finding that there has been a change in Mr. Smith’s ability to meet Nathan’s needs.

▪ Has there been a change in Ms. Blaskavitch’s ability to meet Nathan’s needs?

[58] I find that there has been such a change and the first criterion is satisfied.

[59] Mr. Smith asks that court to consider what he alleges is an escalation in Ms. Blaskavitch’s behaviour since the late summer of 2019. What follows is a summary of some of Ms. Blaskavitch’s behaviour in the 3.5 years since the late summer of 2019.

[60] When addressing the first criterion at stage one of the material change inquiry, I consider all aspects of Ms. Blaskavitch’s behaviour since the late summer of 2019, including those aspects of her behaviour discussed in later sections of these reasons.

[61] First, I consider the events of late March and early April 2020, when Ms. Blaskavitch is living in Ottawa and fails to return Nathan to Mr. Smith’s care, in Petawawa, on March 26, 2020.

[62] Ms. Blaskavitch refuses to return Nathan to Mr. Smith’s care; overholds Nathan for eleven days (March 26 to April 7, 2020), at a time when her parenting time was two consecutive weekends out of every three; and returns Nathan to Mr. Smith only when ordered by the court to do so.[^17] As a consequence of that overholding conduct, the court suspends Ms. Blaskavitch’s parenting time pending the return of Mr. Smith’s and Ms. Blaskavitch’s respective motions (then scheduled for April 17, 2020).

[63] Suspension of Ms. Blaskavitch’s parenting time with Nathan was a serious consequence – to the point one would hope that Ms. Blaskavitch would moderate her behaviour in the future. As will be seen from the matters discussed in the paragraphs which follow, Ms. Blaskavitch does not thereafter moderate her behaviour.

[64] In May 2020, within a matter of weeks following the overholding incident and the suspension of her parenting time, Ms. Blaskavitch begins to send emails about this family law proceeding to individuals other than Mr. Smith and his counsel.

[65] For example, on May 13, 2020, Ms. Blaskavitch sends an email to the Honourable David Lametti, Minister of Justice. In that email, Ms. Blaskavitch says, “This case requires a judicial review. I will be sending your office a summarized document to ensure the removal of a judge from this case, as he keeps getting assigned and issuing orders in favour of [Mr. Conroy’s] clients [sic] favour”.[^18] The email is copied to Mr. Conroy, a name partner with the firm representing Mr. Smith, and to a member of the Military Police. In a related email to Mr. Conroy, Ms. Blaskavitch says, “this case will receive more visibility to ensure I am not being accused of utilizing [Department of National Defence] resources”.

[66] By the spring of 2021, the number and type of people with whom Ms. Blaskavitch communicates by email about this proceeding expand to include a CBC reporter and members of the Military Police Complaints Commission. For example, in April 2021, Ms. Blaskavitch copies the Minister of Justice and a CBC reporter on her email communication with Mr. Smith about her parenting time with Nathan.[^19]

[67] Not only is communication with non-parties indicative of a change in Ms. Blaskavitch’s behaviour; so too is the tone of the communication.

[68] Ms. Blaskavitch does not limit her untoward communication to individuals involved in or that she would like to be informed of this proceeding. Ms. Blaskavitch admits that, in the spring of 2020, she was criminally charged with uttering threats to one of her military housing neighbours. The charge(s) arose from a Facebook meme sent by Ms. Blaskavitch to a neighbour. The neighbour perceived the meme as threatening. This criminal charge was ultimately dropped.

[69] The same or another incident at about the same time resulted in a Notice of Unacceptable Conduct being issued by the CAF to Ms. Blaskavitch in May 2020.[^20]

[70] Whether in the form of criminal charges ultimately dropped or a Notice of Unacceptable Conduct, Ms. Blaskavitch was clearly alerted to the problematic nature of her use of social media and its potential impact on her employment.

[71] In August 2020, Ms. Blaskavitch is evicted from military housing in Ottawa. The notice of eviction dated August 24, 2020, identifies two reasons for the eviction.[^21] The first reason given is that Ms. Blaskavitch’s occupancy no longer meets eligibility requirements because she does not have a dependant living with her at least 50 percent of the time.

[72] In September 2019, Nathan began to reside in Petawawa, in the primary care of Mr. Smith. From that point forward, Ms. Blaskavitch would not have met the eligibility requirements for military housing. I draw an inference and find that Ms. Blaskavitch failed to provide the military housing authority with accurate information regarding Nathan’s primary residence – at a minimum following September 2019 and the date of the James order.

[73] The second reason given for Ms. Blaskavitch’s eviction from military housing is her ongoing conduct towards her neighbours and others in the military housing community. Item 4 of the eviction notice letter reads as follows:

Irrespective, this notice of eviction also follows numerous informal and formal attempts by PSP Military Housing, your Chain of Command, the NDHQ CWO, and CO PSS(O-G) as per reference B to resolve on-going quarrels with your neighbour and those in the PSPMH community. Despite such warnings, additional complaints and multiple Military Police Unit (Ottawa) reports have been received against the occupant(s) residing at 54 Haylett Pvt, which in my assessment demonstrates continued unprofessional conduct and behaviour contrary to directives and orders.[^22]

[74] In cross-examination, Ms. Blaskavitch denied that disputes with her neighbours were the primary reason for her eviction from military housing. Ms. Blaskavitch testified that she believes Mr. Smith is the reason why she was evicted.[^23]

[75] The eviction notice required that Ms. Blaskavitch vacate her military housing unit by September 30, 2020. Ms. Blaskavitch’s evidence is that she did not leave the unit until the end of October 2020.

[76] By the fall of 2020, not only are there concerns about Ms. Blaskavitch’s inappropriate use of email and social media and her disputes with her military housing community members and neighbours, but there are also concerns about changes in her behaviour around Nathan. Mr. Smith’s undisputed evidence is that at an exchange in early September 2020, Ms. Blaskavitch refers to Mr. Smith’s partner in an extremely derogatory and crude manner. The remarks are made while the parties are both standing outside Ms. Blaskavitch’s car, with Nathan sitting inside the car and possibly in earshot of what is being said.

[77] During an exchange that occurs later in September 2020, in a residential setting, Ms. Blaskavitch yells at Mr. Smith in front of Nathan; Ms. Blaskavitch refers to Mr. Smith as a “piece of shit” and an abusive parent.

[78] From late 2020 to early 2021, Ms. Blaskavitch refuses to disclose to Mr. Smith where she is living (i.e., after moving out of military housing). In that period, Ms. Blaskavitch is charged under the National Defence Act[^24] with insubordination and being absent without leave.

[79] Ms. Blaskavitch admits that in February 2021 she receives a letter from Canadian Forces Intelligence Command recommending that she be released from the military.[^25] The Commanding Officer who authored the letter notes a “noticeable deterioration” in Ms. Blaskavitch’s behaviour in the previous twelve months. The Commanding Officer refers to the eviction from military housing, an ongoing Unit Disciplinary Investigation, and that Ms. Blaskavitch has “taken to personally attack a number of military members through email and social media.”

[80] Addressing Ms. Blaskavitch’s behaviour from June 2020 forward, the Commanding Officer notes the following:

5. In June 2020, MS Blaskavitch was given a Recorded Warning (RW) for reasons outlined in the included paperwork. Despite allowing the RW to run the full six months, she did not address the identified deficiencies in her behavior and failed to attend all but three of her assigned progress [sessions]. Counselling and Probation (C&P) was implemented in which she did not attend a single progress session and has continued to publicly discredit members of the CAF.

6. On 4 February 2021, she received her Notice of Intent (NOI) to recommend release and to this date has not provided any representation as to why this should not proceed.

7. I strongly support the release of MS Blaskavitch. While she demonstrated early potential in the CAF, she has become a significant burden to this Unit, CFB (O-G) and to the CAF. Her current behavior shows she takes no responsibility for her own actions and her values and beliefs are incompatible with those of the CAF. As such I highly recommend the release of MS Blaskavitch.[^26]

[81] Ms. Blaskavitch’s behaviour does not change following receipt of the February 24, 2021 letter from the Commanding Officer. Ms. Blaskavitch’s conduct in March and April 2021 is discussed in other sections of these reasons. By way of example, that conduct includes Ms. Blaskavitch’s decision to overhold Nathan in April 2021 (around the Covid-delayed March Break). Without Mr. Smith’s consent, Ms. Blaskavitch keeps Nathan from April 9 to 18, 2021.

[82] In cross-examination, Ms. Blaskavitch acknowledged that her April 9, 2021 post to social media was inappropriate. It includes information about Nathan’s daycare provider and Mr. Smith’s military tag number.[^27] I pause to note that, when responding in cross-examination, Ms. Blaskavitch was defensive; she questioned how the posts had anything to do with Nathan’s best interests and expressed her belief that such posts do not hurt Nathan.

[83] In the same period, Ms. Blaskavitch engages in email communication with Mr. Smith, informing him of her intention to begin the “conversion to week about per the trial order”.[^28] Yet, there is no final order in force which provides for conversion of the parenting schedule from that set out in the James order – let alone to a week-about schedule.

[84] Mr. Smith responds by email. In a civil tone, he expresses his disagreement with Ms. Blaskavitch’s interpretation of the parenting schedule in accordance with the most recent court order.[^29] The tone of Ms. Blaskavitch’s reply is more confrontational than that of her original email. She says, “And as a serving CAF member you are required to co-parent in line with the current laws including Bill C78. Maximum contact. You have no reason to deny. Except to be a dick.”[^30]

[85] Given the subject matter and tone of Ms. Blaskavitch’s email, it is not surprising that Mr. Smith’s lawyer, Michael Conroy, communicates with Ms. Blaskavitch. In his April 23, 2021 letter to Ms. Blaskavitch, Mr. Conroy,

• reminds Ms. Blaskavitch of the letter dated March 3, 2021, sent by Mr. Conroy’s office in which she was informed that Mr. Smith does not consent to a change from the parenting schedule set out in the James order;

• quotes the parenting schedule set out in the James order;

• provides Ms. Blaskavitch with a link to the online version of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), which incorporates the legislative changes in Bill C78;

• informs Ms. Blaskavitch that the process by which to request a change to a final court order is a motion to change;

• refers Ms. Blaskavitch specifically to Rule 15 of the Family Law Rules, O. Reg. 114/99;

• provides Ms. Blaskavitch with a link to the online version of the Family Law Rules;

• indicates that Mr. Conroy’s office will assist Ms. Blaskavitch with personal service of documents on Mr. Smith if she decides to proceed with a motion to change; and

• encourages Ms. Blaskavitch to seek independent legal advice “prior to imposing [her] own changes to Nathan’s parenting arrangements.”

[86] Ms. Blaskavitch overholds Nathan, once again, in late April – from April 25 to May 10, 2021. Mr. Smith is forced to bring a motion to enforce the James order. It is not until the return of that motion, before Doyle J., that Ms. Blaskavitch agrees to return Nathan to Mr. Smith.

[87] During this period of overholding Nathan, Ms. Blaskavitch posts on Facebook a copy of Mr. Smith’s affidavit in support of his motion to enforce the James order.

[88] During the same period – on Nathan’s birthday on May 3, 2021 – Ms. Blaskavitch makes a derogatory post on Facebook about Mr. Smith’s counsel;[^31] posts Mr. Smith’s home address, work address, and date of birth on Facebook;[^32] and posts on Facebook the daycare provider’s name and address, and allegations that Nathan has been physically injured while in the daycare provider’s care.[^33]

[89] Returning to late April, on April 23, 2021, Ms. Blaskavitch posts a message on Facebook about one of the Military Police officers who had attended at her home in military housing in March 2020 (i.e., more than a year earlier). As of the spring of 2021, the officer had been posted to Kingston. Ms. Blaskavitch’s Facebook post reads as follows:

I will take your badge or if I ever see you we can scuffle it out until you’re struggling to move. I’m not kidding. A piece of shit like you deserves a beat down you’ll never forget … and I have no shame in being the one to leave you struggling for life; the way you left me last March threatening “child abduction” with no authority. Now whether I do or not, that’s subject to you crossing my path.

[90] This post leads to criminal charges against Ms. Blaskavitch. As of the spring of 2021, Ms. Blaskavitch is charged with an offence under s. 264.1(1)(a) (threaten death/bodily harm) and an offence under s. 264(1), (2)(b) (criminal harassment) of the Criminal Code.[^34] The offence dates are April 23, 2021, and April 22-24, 2021, respectively.

[91] On April 30, 2021, while she is overholding Nathan in her care, Ms. Blaskavitch posts the following message on Facebook about her status with the military: “I’m so fucking done. Where is my medical release or continuance of attacking me. The CAF wanted a fight; instead I’ve brought them a war …”[^35]

[92] Ms. Blaskavitch testified on February 3, 2022, that the charges described in para. 84, above, were still pending; they had not been resolved. At no time prior to the conclusion of the hearing of the motion to change, in August 2022, did Ms. Blaskavitch inform the court that the status of those charges has changed.

[93] On May 10, 2021, the parties appear before Doyle J. on Mr. Smith’s motion to enforce the terms of the James order. Doyle J. orders Ms. Blaskavitch to return Nathan to Mr. Smith. At para. 6 of her endorsement, Doyle J. says, “At the hearing the mother agreed that pending her motion to change, she will comply with the Final Court Order.”

[94] Despite her commitment to the court to follow the James order, Ms. Blaskavitch fails to do so when her next weekend of parenting time with Nathan begins. Mr. Smith’s evidence is that Ms. Blaskavitch insists that the start of her parenting time be changed from 5:30 p.m. to 4:00 p.m. When Mr. Smith refuses to change the time, Ms. Blaskavitch drives to Mr. Smith’s home. Pursuant to the terms of the James order, the designated exchange location is a Tim Horton’s franchise in Petawawa.

[95] Ms. Blaskavitch admits that she parks her vehicle outside Mr. Smith’s home in military housing and honks the horn of her vehicle for several minutes. In addition, Mr. Blaskavitch sends Mr. Smith a video of her inside the car and honking her horn. Based on complaints made by his neighbours, Mr. Smith believes that Ms. Blaskavitch remains parked outside his home and honking the horn of her car for as many as 20 minutes. Ms. Blaskavitch’s evidence is that she “blasted” the horn in protest for less than five minutes.

[96] In cross-examination, Ms. Blaskavitch acknowledged that she was not thinking of Nathan when she behaved in that manner. Her explanation for the behaviour is that she is not a violent person, and she does not know how to get through to Mr. Smith. When cross-examined about the video Ms. Blaskavitch responded, “I’m not proud of this.”[^36]

[97] Ms. Blaskavitch behaved in this manner at Mr. Smith’s home (a) within a month of being charged with criminal offences related to a Facebook post, (b) within 2.5 weeks of informing the court that she would follow the terms of the James order, and (c) only days before commencing her motion to change.

[98] At the conclusion of her late May 2021 weekend of parenting time with Nathan, approximately three weeks after informing Doyle J. that she will follow the parenting schedule provided in the court orders, Ms. Blaskavitch (a) declares that she is keeping Nathan as part of her summer 2021 parenting time, and (b) overholds Nathan.

[99] Ms. Blaskavitch makes the unilateral decision to begin her summer 2021 parenting time with Nathan – overholding him on May 30, 2021. At the time, the summer parenting time as set in the MacEachern J. order. Paragraph 4 of that order provides that the original summer parenting schedule (para. 10 of the Robertson order) is replaced with the following schedule:

13. Commencing in the summer of 2020, the child will reside with each party for two consecutive weeks during the months of July and August. Ms. Blaskavitch and Mr. Smith will advise each other by May 1st of their chosen weeks, with Ms. Blaskavitch to have the first choice in even-numbered years and Mr. Smith to have the first choice in odd-numbered years. In making plans, each party will take into account the child’s scheduled activities and the parties’ special occasions.

[100] Following the late May 2021 overholding, the parties are before Doyle J. in June and July 2021. At para. 6 of her July 5, 2021, endorsement, Doyle J. says, “The mother was directed to focus on events since the Final Order as the Court assumes the Final Order is correct and in full force and effect.”

[101] The parties are before Williams J. on July 14, 2021. Williams J. hears Ms. Blaskavitch’s motion for an interim order for (a) a week-about parenting schedule, and (b) the right of first refusal if Mr. Smith is unable to care for Nathan. On his motion, Mr. Smith asks Williams J. to find Ms. Blaskavitch in contempt of court by reason of her failure to follow several court orders.

[102] Mr. Smith also requests an order prohibiting Ms. Blaskavitch from posting on social media information related to the family proceeding or to the parties’ parenting discussions, and for FRO enforceability related to the term of the Robertson order which prescribes equal sharing of Section 7 expenses. Williams J. grants these two elements of the relief requested by Mr. Smith.

[103] Justice Williams concludes that, pending the outcome of the motion to change, it is in Nathan’s best interests to maintain the status quo, of almost two years, based on the parenting schedule provided in the James order.[^37] Williams J. dismisses Ms. Blaskavitch’s motion for an interim order changing the parenting schedule.

[104] Justice Williams concludes that Ms. Blaskavitch has breached a court order and that she did so intentionally.[^38] The breach so found is the failure to return Nathan to Mr. Smith on May 30, 2021.

[105] Justice Williams declines to find Ms. Blaskavitch in contempt, citing the decision of the Court of Appeal for Ontario in Moncur v. Plante.[^39] Williams J. emphasizes that a contempt order is a remedy of last resort, and cautions Ms. Blaskavitch that “depending upon [her] future behaviour, the clock may be ticking.”[^40] Specifically, at para. 27, Williams J. recommends to Ms. Blaskavitch that she reflect on her past behaviour:

The mother must understand, however, that I have found that she has breached a court order and that she did so intentionally. These are serious findings. They are findings that could ultimately have serious consequences for her. They are findings in respect of conduct a parent should not be proud of and that does not set a good example for a young child. I urge the mother to take these words to heart.

[106] At para. 23, Williams J. highlights that “There is no question the mother was aware of the [James order and MacEachern order]. The mother said in court that she was very aware of the orders and that she also understands that they must be followed.”

[107] Ms. Blaskavitch was cross-examined about her decision to continue to make social media posts related to the family law proceeding – specifically after Williams J.’s August 2021 order prohibiting her from doing so. Ms. Blaskavitch’s response was that, just as had happened to her in the military, she “was being muzzled”. Ms. Blaskavitch testified that she was not proud of having posted some of Mr. Smith’s affidavits online.

[108] The parties continue to encounter challenges with the summer schedule in 2021. For that summer, Mr. Smith chose August 14-28, 2021, as his two weeks for vacation. That vacation period commences in the middle of what would otherwise be Ms. Blaskavitch’s regularly scheduled weekend parenting time with Nathan. Mr. Smith has flights booked out of Ottawa to Nova Scotia on August 14, 2021.

[109] Mr. Smith fears that Ms. Blaskavitch will not return Nathan if he spends time with her on August 13, 2021. Mr. Smith’s solution to the situation is to,

• keep Nathan on August 13, 2021; and

• start Ms. Blaskavitch’s Labour Day Weekend parenting time with Nathan on Thursday, September 2, 2021 instead of Friday, September 3, 2021. He also agrees to extend the parenting time to Tuesday, September 7, 2021, with Ms. Blaskavitch taking Nathan to school.

[110] Justice Williams’ reasons are released in mid-August 2021. As of that date, Ms. Blaskavitch is aware of the order made by Williams J. prohibiting Ms. Blaskavitch from posting to social media about the family proceeding.

[111] On August 29, the first day following the end of Mr. Smith’s two-week summer vacation period with Nathan, Ms. Blaskavitch sends Mr. Smith more than 100 What’s App messages. The first hundred messages are sent in the 37-minute period from 8:17 a.m. to 9:24 a.m. In those messages, Ms. Blaskavitch demands time with Nathan to make up for the August 13-15, 2021, weekend.

[112] In addition, Ms. Blaskavitch demands the phone number for Nathan’s daycare provider. Mr. Smith responds by saying that Ms. Blaskavitch already has the daycare provider’s phone number. Ms. Blaskavitch then sends Mr. Smith a message to which she attaches a nude photograph of Mr. Smith in what he described to the court as a compromising position. Mr. Smith believes the photograph was taken at a time when the parties were still married.

[113] The messages sent by Ms. Blaskavitch relating to the nude photograph include the following:

8:53 am I should go leave this on [the daycare provider’s] door.

8:54 am Ready to be human now?

8:54 am Sitters phone number Chris

8:54 am As I don’t have it. Thanks

8:55 am There’s lots of mailboxes all over base

8:55 am Or Wednesday and Thursday Nathan comes to moms for free …

8:56 am Oh I plan on doing a lot of printing … there’s lots of units on base.

9:06 am Just know anything you or [your lawyer, others] and [the daycare provider] does and these images will be flagged for someone else to distribute. To be clear. Not a threat. A promise. No more harassment or federal attacks. Play legally for once in your life. Thanks.

9:17 am [Oh] and if [your lawyer] tries to manipulate the language of the image; I’ll Be sure to print out the entire conversation for the court. Understand? The games end now.

9:24 am My photocopies keep a history log so don’t try anymore games Chris.[^41]

[114] Ms. Blaskavitch concludes the day’s barrage of messages at 3:01 p.m. In her final message, directed to Mr. Smith’s lawyer, Ms. Blaskavitch says, “This is discussing Nathan; for the record Jessica.”

[115] In cross-examination, Ms. Blaskavitch acknowledged that it was inappropriate for her to disseminate a photograph of Mr. Smith in the nude. Ms. Blaskavitch testified that her intention in disseminating the photograph was to (a) give Mr. Smith a lesson in humility – because he has none, and (b) cause Mr. Smith to act “legally” as opposed to continuing his attacks against her. As to her “promise” (as opposed to a threat) to leave a copy of the photograph on the front door to the daycare provider’s home, Ms. Blaskavitch testified that “[her] freedom should not end where [Mr. Smith’s] fears begin. He perceives everything as a threat.”

[116] Two events follow shortly after the dissemination of the photograph on August 29, 2021. First, Mr. Smith receives a letter from a lawyer for Nathan’s daycare provider. In the letter conditions are listed, which must be met if Nathan is to continue to attend with the daycare provider.

[117] Second, the parties appear before Doyle J. for a case conference. Mr. Smith raises the issue of Ms. Blaskavitch’s recent barrage of messages, including the photograph. At para. 6 of her August 31, 2021 endorsement, Doyle J. states that, “On consent, the mother agrees that she will not threaten the father in her communications with him, nor will she post or distribute any intimate images of him on the internet.” That portion of the endorsement reflects at least the second occasion in less than two months, on which the court is required to address with Ms. Blaskavitch her more-than-questionable online conduct.

[118] Despite Doyle J. having addressed that conduct, Ms. Blaskavitch continues to send the nude photograph to Mr. Smith, at times with sarcastic commentary. It is not until Mr. Smith informs Ms. Blaskavitch that he will report the matter to the police that she ceases her communication with Mr. Smith about the photograph.

[119] In September 2021, Nathan is six years old. He attends Grade 1 at a school within the Renfrew County District School Board. Mr. Smith completes a Student Registration / Verification report for the Board. He provides the Board with a copy of Doyle J.’s order dated August 31, 2021, to identify Ms. Blaskavitch as Nathan’s mother and confirm her home address. Mr. Smith includes his and Ms. Blaskavitch’s contact information. As secondary contacts, Mr. Smith includes his partner, a male friend of his who is employed with CFB Petawawa, and Nathan’s daycare provider.

[120] Mr. Smith subsequently becomes aware that Ms. Blaskavitch has reviewed the form and made handwritten annotations to it. The annotations, which Ms. Blaskavitch admits making include the following:

• Drawing a line through the entry for Mr. Smith’s partner and printing in all upper-case letters, “DRAMA – DO NOT CONTACT”;

• Drawing a line through the entry for the male friend and printing in all upper-case letters, “COCAINE ADDICT”; and

• Drawing a line through the entry for the daycare provider and printing, “BRUISED NATHAN [;] NOT OK [WITH] THIS SITTER [.] * Statements available from previous sitters.”[^42]

[121] In the fall of 2021, Nathan is scheduled to receive a booster shot in keeping with his age. In preparation to take Nathan to that appointment, Mr. Smith sends Ms. Blaskavitch an email in which he (a) requests that he be given Nathan’s vaccination record, and (b) asks Ms. Blaskavitch for her thoughts about Nathan also receiving the COVID-19 vaccine (i.e., once it is made available to children Nathan’s age).

[122] Ms. Blaskavitch responds with the following What’s App message: “You wouldn’t have sent that email if Jessica didn’t have another domestic terrorist plot. Good thing she’s in US jurisdiction …”[^43] Mr. Smith’s evidence is that communication referring to conspiracies, and implicating Ms. Fuller in those conspiracies, had become more frequent by the fall of 2021.

[123] For example, in several text messages sent to Mr. Smith, Ms. Blaskavitch (a) refers to the wrath of God; and (b) tells Mr. Smith to stop sinning.[^44] As another example, in a text message sent on October 23, 2021, and referring to Mr. Smith’s lawyer of record, Ms. Blaskavitch says, “your lawyer’s days are numbered. Remember an eye for an eye and look what’s happened to me”.[^45] This message is sent approximately one month prior to the date on which the motion to change is scheduled to commence.

[124] The parties are before the court on October 28, 2021, for their respective motions to be heard. At para. 10 of his November 3, 2021, endorsement, Kershman J. grants Mr. Smith “all interim decision-making for medical issues for the child pending the outcome of the trial including issues for vaccinations, including COVID-19 vaccinations and other interim medical decisions that are required to be made.”[^46]

[125] Ms. Blaskavitch acknowledges that on November 2, 2021 – only days prior to the date on which the motion to change is scheduled to commence – she communicates with both Mr. Smith and his counsel demanding that the right of first refusal be granted to her immediately. Ms. Blaskavitch acknowledges that she engages in that communication even though an order is in force pursuant to which she was granted right of first refusal pending the outcome of the motion to change. Her explanation for doing so is that (a) she wanted “greater clarity” on the point, and (b) she is poor at communicating when under stress. Ms. Blaskavitch volunteered, “I am a better person than this.”

[126] The motion to change is originally scheduled to be heard, for four hours, on November 25, 2021. When the hearing commences on that date, it is apparent that the motion will not be completed in four hours. The motion continues in January 2022 and in segments of several days each throughout 2022; closing submissions are made in August 2022.

[127] Mr. Smith relies on Ms. Blaskavitch’s behaviour during the two-month adjournment, from November 2021 to January 2022, in the hearing of the motion to change. Exhibit 21, entered as part of Ms. Blaskavitch’s case, is a 26-page series of WhatsApp messages dating from November 21, 2021 to January 24, 2022. The messages are between Ms. Blaskavitch and Mr. Smith. Ms. Blaskavitch relies on the messages as evidence of Mr. Smith’s conduct since the late summer of 2019.

[128] I note that these messages are exchanged at a time when the parties had, on at least two occasions, consented to an order mandating that they restrict their communication to Nathan.

[129] The exchange includes the following message sent by Ms. Blaskavitch to Mr. Smith at 8:04 a.m. on December 19, 2021:

Did you read FBI / US just charged an ISIS terrorist in Edmonton – don’t think for a minute your antics have gone unnoticed.

You started this at the warehouse bar – you’re just Blaskavitch’s baby daddy; remember – your Terrorism days have concluded and your affidavit has been sent into the MPs and MPCC as MPs sent your first affidavit to MPCC.[^47]

[130] In another message from the same exchange, Ms. Blaskavitch raises the spectre of a conspiracy:

2021-12-19, 6:44 p.m. – Christina: No longer a conspiracy – VALIDATED – https://www.ctvnews.ca/mobile/world/inside-the-csis-probe-that-identified-a-canadian-mole-who-spied-for-moscow-

1.5713343?fbclid=lwAR1UssNfZThZWN76FvOpghM4SLLOm5Ji3Lqql3MzjgcstJ24wEshxBJ3xSE

Last paragraph: “This case, however, is a clear example of how Canada has historically been targeted by hostile threat actors and yet another example of the risks associated with the insider threat,” he said. “Canada clearly was and remains an attractive target for espionage.”

And the Soviet spies were not a conspiracy as indicated by csis – stop associating with my abusive father, man up – own what you did and learn to communicate instead of blowing me off. You set this entire situation up and my statement to OPP end Sept 2017 confirms your plot with my father.

Your lawyer cannot save you from the crimes you committed with my fathers help – [^48]

[131] By the dates on which the messages set out in Exhibit 21 are sent, Ms. Blaskavitch has also consented to an order that she will not threaten Mr. Smith. Yet, the messages she sends include the following content:

Dec. 22/21 at 3:25 p.m.

Alternatively, I’ll send the video state side for publishing – as you overheard and planned this attack.

Dec. 22/21 at 3:25 p.m.

Then I’ll be calling the police as you’re failing to reschedule my access and are refusing to show up.

Dec. 22/21 at 3:17 p.m.

Perhaps Facebook would be more appropriate – show the world what you’re really like when you plot alongside a Soviet spy.[^49]

[132] These are but some of the examples of the contents of the 26 pages of WhatsApp messages.

[133] Not only are the tone and content of the messages noteworthy; so too is the frequency with which messages are sent by Ms. Blaskavitch. For example, on December 3, 2021, Ms. Blaskavitch sends more than 40 messages to Mr. Smith between 12:46 p.m. and 6:35 p.m. Most of the messages are sent between 6:19 p.m. and 6:35 p.m. – with up to six messages sent in a single minute. There are other days in that period on which Ms. Blaskavitch sends numerous messages, including, at times, multiple messages in a very short span of time.

[134] One of the exchanges between the parties on December 3, 2021 provides an example of Mr. Smith’s style of communication, his restriction of the subject matter to Nathan, and Ms. Blaskavitch’s confrontational tone in response:

2021-12-03, 12:59 p.m. – Chris: Just an fyi that the school just called and Nathan slipped on the ice at school. He is not in any pain and no bumps visible. His teachers are following concussion protocol just in case. Just letting you know.

2021-12-03, 1:03 p.m. – Christina: I expect a copy of the report they stated they’d be sending home. Per protocol.

Man up – coparent.[^50]

[135] In her oral testimony, Ms. Blaskavitch acknowledged that she at times used inappropriate language in the messages sent between November 2021 and January 2022.[^51]

[136] Even as of the spring of 2022, Ms. Blaskavitch is sending messages with questionable and/or concerning content. On April 18, 2022 – while the hearing continues – Ms. Blaskavitch sends a lengthy email to Mr. Smith’s counsel. That email includes the following paragraphs:

The truth will no longer be hidden from the Queen’s court. As someone who is married to a commissioned officer of the CAF, it’s concerning how much you loathe God in the courtroom and attack my PROTECTED religious rights and subsequent oath. The same oath taken by your client and spouse. This is a security clearance concern for the good Sir.

The federal medical fraud issue with her spouse as a doctor where her actions and behaviour are a direct result of my 3 high stress events (attacked by MPs in March 2020, Sexual Assault May 2020, Eviction October 2020 – all of which occurred after she was reported to the law society, then vexatious litigation and continues to this day – she expected me to be dead by now: God kept me here baby push a persons brain into a “depressive-suicidal” state to which she has reaped the rewards from the domestic violence and workplace harassment attacks. It’s tough to accept you FAILED to eliminate or have me killed Mrs. Fuller.[^52]

[137] The next day – again while the motion to change is continuing – Ms. Blaskavitch, unprompted, sends a four-paragraph email to Mr. Smith’s counsel. That email begins and ends with the following paragraphs, respectively:

The Military Police are responsible for the CAF MEDICAL FRAUD involving your spouse where you attempted to drive me to suicide by acting on 3x high stress events pushing my brain into a depressive episode. You are married to a doctor. I submit you attempted to have me murdered to advance this case and achieve payment while continuing to HUMAN TRAFFIC my son to force this federal FRAUD payment.

Respectfully. DO NOT GRACE US WITH YOUR PRESENCE MRS. FULLER.[^53]

[138] On April 21, 2022, Mr. Smith’s counsel sends Ms. Blaskavitch a two-line email. Counsel attaches three documents on which she intends to cross-examine Ms. Blaskavitch the following day.

[139] Ms. Blaskavitch responds by email with a colour photograph, from an online news site, of a missile. The caption to the photograph reads, “Defence expert tells government to worry about missiles, not disinformation”. To that caption, and an extract from the related article, Ms. Blaskavitch adds the following personal commentary to her email reply to counsel: “[We’ll] all be dead soon – your fraud won’t matter then. All I wanted to do was my job and keep people alive; and you lied to get me fired. Your husband holds a Geneva convention card and is unauthorized to shoot as a Doctor – I know I’m not sleeping great these days but keep up the narrative Ms. Fuller.”

[140] When cross-examined about that email, Ms. Blaskavitch testified that “They may have already hacked the network” and any NATO country is a target. The statement, “We’ll all be dead soon” was intended to identify the requirement to “start paying attention to the enemy.”

[141] In re-examination, Ms. Blaskavitch testified about the steps she was taking, as of April 2022, to enhance her well-being. Ms. Blaskavitch acknowledged that because of stress in her life she had not been fully taking care of herself. She had begun taking nutritional supplements, which she found helped to keep her sane, motivated, and healthy. She understood that it was important for her to heal, maintain the will to live, and interact with others at her own pace.

v) The Threshold Question - Analysis

[142] The Robertson order was made on the consent of the parties. There are no reasons from 2017 in which the presiding judge addressed the parties’ respective conduct. In her 2019 reasons, MacEachern J. addresses the conduct of the parties to some extent. Justice MacEachern notes shortcomings on the part of both parties. At that time, the expectation is that the conduct of both parties – Ms. Blaskavitch specifically – will improve.

[143] Sadly, for all concerned, Ms. Blaskavitch’s conduct has not improved since August 2019, when MacEachern J. released her reasons. Instead, Ms. Blaskavitch has demonstrated a pattern of confrontational behaviour. I find that Ms. Blaskavitch was and remains confrontational towards Mr. Smith, his counsel, her employer, members of the military, and her neighbours. Ms. Blaskavitch has also chosen to focus her attention on threats which she perceives she is personally facing, and which are present on a national level. Ms. Blaskavitch chose to address some of her confrontations and the perceived threats by involving federal politicians in her email communication.

[144] Ms. Blaskavitch acknowledged the problematic nature of some of her conduct – for example, sending prolific confrontational emails and sending emails with questionable content. Ms. Blaskavitch acknowledged that she requires help to learn how to moderate her behaviour. Ms. Blaskavitch testified that she is pursuing help in that regard. I commend Ms. Blaskavitch for recognizing that she requires help and for pursuing it.

[145] Ms. Blaskavitch acknowledged that she does not handle stress well. Her inability to handle stress is patently obvious from her conduct in the days prior to the commencement of the motion to change and in the spring of 2022, during the later stages of the motion to change.

[146] I find that Ms. Blaskavitch’s conduct since August 2019 demonstrates and is consistent with a change in her ability to meet Nathan’s needs. The first criterion at stage one of the inquiry is met.

[147] I am satisfied that the second criterion is also met – the change in Ms. Blaskavitch’s condition materially affects Nathan. My reasons for making that finding include the following:

• Ms. Blaskavitch’s decisions to overhold Nathan deprive Nathan of the stability of a consistent routine;

• Ms. Blaskavitch compromised her ability to provide Nathan with a stable home environment by misrepresenting her parenting status to military housing and by engaging in behaviour which resulted in her eviction from military housing;

• Ms. Blaskavitch put Nathan’s safety and well-being at risk by refusing to disclose where she was living in late 2021 and early 2022;

• Ms. Blaskavitch engaged in confrontational behaviour when Nathan was present (exchanges);

• Ms. Blaskavitch put Nathan’s safety at risk by posting his daycare provider’s name and address to social media;

• Ms. Blaskavitch put Nathan’s privacy, both short-term and long-term, at risk by posting information and materials about this proceeding to social media; and

• Ms. Blaskavitch put Nathan’s ability to continue with the consistency of his daycare spot in jeopardy with (a) the above-noted posting, and (b) the threat to place the nude photo of Mr. Smith on the daycare provider’s front door.

[148] Ms. Blaskavitch has involved Nathan in the adult conflict between his parents by engaging in confrontational and inappropriate behaviour at exchanges. In addition, she has, on at least two occasions, requested that Family and Children’s Services (“FCS”) investigate matters. Mr. Smith submits that the timing of the referrals to FCS is deliberate – prior to the parties’ returns to court. Regardless of Ms. Blaskavitch’s motivation, what is telling is the Society’s caution to Ms. Blaskavitch that Nathan is at risk of emotional harm if he is repeatedly required to participate in investigative interviews. Yet, despite this caution, Ms. Blaskavitch frequently turns to the FCS and requests their involvement.

[149] Exhibit 29 is an example of Ms. Blaskavitch communicating with Nathan specifically about the adult conflict. Ms. Blaskavitch acknowledges making the following post on her Facebook page, although she could not recall the date on which she created the post:

Trying to call you little man; your father is ignoring me.

The children’s aid society confirmed in writing, they did not recommend this course of action from my ex, MCpl CD Smith; 450 THS Petawawa.

As pembroke courthouse is corrupt and Johnson Fraser Conroy is employing a lawyer currently defrauding the government. We have no choice but to wait out for the court of appeal.

I’m trying kiddo … your school is tracking also …

[150] Not only does the post draw the reader – intended as Nathan – into the conflict between the parties, but it also draws the reader into Ms. Blaskavitch’s confrontational and accusatory style of communication as it relates to others.

[151] In summary, Ms. Blaskavitch’s inability to moderate her behaviour affects not only her; it also detrimentally affects Nathan.

[152] As I have already noted, in August 2019, MacEachern J. was optimistic and expected Ms. Blaskavitch’s behaviour to improve. The type of conduct in which Ms. Blaskavitch engaged after August 2019 was not foreseen and could not reasonably have been foreseen by any of Robertson, MacEachern or James, JJ. I find that the third criterion for the threshold question is met.

[153] With the threshold question answered in the affirmative, I move to the second stage of the material change inquiry.

c) The Second Stage of the Material Change Inquiry: In the new circumstances, is it in Nathan’s best interests that the existing joint decision-making be varied to sole decision-making by Mr. Smith?

[154] Pursuant to the Robertson, MacEachern and James orders the parties were allocated joint decision-making responsibility and parenting time. As a result, under s. 7(1) of the Divorce Act, both parties were obligated to “exercise that time, responsibility or contact in a manner that is consistent with [Nathan’s] best interests”.

[155] As parties to this proceeding, both Ms. Blaskavitch and Mr. Smith are required “to the best of their ability to protect any child of the marriage from conflict arising from the proceeding.”[^54]

[156] Based on the evidence as a whole, including Ms. Blaskavitch’s conduct described throughout these reasons, I find that joint decision-making is no longer feasible. Ms. Blaskavitch does not have the interpersonal skills required to permit her to moderate her behaviour towards Mr. Smith (or his representatives). Ms. Blaskavitch does not have the self-restraint required to make joint decision-making workable.

[157] What factors does the court consider when determining a child’s best interests? The court’s primary consideration is “the child’s physical, emotional and psychological safety, security and well-being.”[^55] In addition, the court “shall consider all factors relevant to the circumstances of the child”. A non-exhaustive list of such factors is set out in ss. 16(3) (a)-(k).

[158] As found in the previous section of these reasons, Ms. Blaskavitch has on numerous occasions deprived Nathan of stability and put his safety, security and well-being in jeopardy (s. 16(3)(a)).

[159] Ms. Blaskavitch’s communication pattern and style, as it relates to Mr. Smith, is such that I find she is both unable and unwilling to communicate and co-operate with Mr. Smith on matters affecting Nathan (s. 16(3)(i)). Ms. Blaskavitch does not have the interpersonal skills required to allow her to moderate her behaviour towards Mr. Smith and make joint decision-making workable. Mr. Smith on the other hand has demonstrated t restraint in his communication, despite the volume, frequency, and tone of the communication he receives from Ms. Blaskavitch.

[160] Ms. Blaskavitch’s confrontational and accusatory communication style affects many aspects of her and Nathan’s lives – employment, housing, school, and Family and Children’s Services. That communication style and the contexts in which it is utilized are such that I find that Ms. Blaskavitch is unable to participate in decision-making as it relates to caring for and meeting the needs of Nathan (s. 16(3)(h)).

[161] I am also mindful of the outstanding criminal charges against Ms. Blaskavitch. The subject matter of the charges is of concern, as are potential convictions, to Nathan’s safety, security and well-being (s. 16(3)(k)).

[162] An examination of the history of care of the child (s. 16(3)(d)) supports a finding that Mr. Smith strived and continues to strive to provide Nathan with a stable home environment, routine, and parenting schedule. Ms. Blaskavitch, on the other hand exposed Nathan to a move to Ottawa in contempt of a court order, an eviction, and as a series of uncertain and secret living arrangements.

[163] Ms. Blaskavitch has also disrupted Nathan’s routine on each of the occasions she overheld him.

[164] Prior to the commencement of the hearing, Ms. Blaskavitch had not voluntarily made any child support payments.

[165] It is beyond the scope or requirement of these reasons to consider every aspect of Ms. Blaskavitch’s behaviour since September 2019 and allocate it to a factor listed in s. 16 of the Divorce Act.

[166] I find that Ms. Blaskavitch does not put Nathan’s interests ahead of her own. I find that the manner in which each of the parties has historically cared for Nathan – including at times when Nathan was with the other party – supports Mr. Smith being solely responsible for decision-making for Nathan.

[167] Based once again on the evidence as a whole, I find that it is in Nathan’s best interests that Mr. Smith have sole decision-making for Nathan in all realms. A term to that effect is included in the order made in the concluding section of these reasons.

d) Family Violence

[168] In the context of decision-making, Mr. Smith asks the court to,

a) find that Ms. Blaskavitch’s threatening and coercive behaviour meets the definition of “family violence” within the meaning of s. 16(4) of the Divorce Act; and

b) include as a term in the final order a term which to date is in temporary orders only, requiring the parties to be co-operative and to restrict their communication with one another to matters affecting Nathan.

[169] In support of that request Mr. Smith points to Ms. Blaskavitch’s aggressive conduct during exchanges; financial abuse by failing to pay child support and costs as ordered; threats of further litigation; and online posts disclosing Mr. Smith’s personal information.

[170] The case authorities are clear in stating that “violence” is not restricted to physical abuse; violence can be achieved by words and deed.[^56] It is possible for the content of text messages to constitute “violence” within the meaning of s. 16(4) of the Divorce Act.[^57]

[171] In addition to the evidence and principles summarized above, I consider the number of times, in 2021 and 2022, that Ms. Blaskavitch was reminded by the court to follow the terms of an order, undertook to the court to do so, and, within a matter of weeks thereafter, acted contrary to the terms of the order. It is understandable that Mr. Smith has no confidence that Ms. Blaskavitch will co-operate and communicate with him in a civil and respectful manner.

[172] I am satisfied that it is reasonable and in Nathan’s best interests that the final order requires the parties to co-operate and communicate in a civil and respectful manner – specifically about Nathan. A term to that effect is included in the order made at the conclusion of these reasons.

Issue No. 2 – The Parenting Schedule

a) The Existing Order

[173] In September 2019, James J. ordered that the parenting schedule be as follows:

9. The regular schedule for the parties’ parenting time shall be as follows:

a. Nathan shall primarily reside with Mr. Smith in Petawawa effective immediately.

b. Ms. Blaskavitch shall have weekend access, commencing the first weekend after Nathan moves to Petawawa, in sets of two successive weekends with Mr. Smith keeping Nathan in his care every third weekend.

c. When a holiday falls on either the Monday or Friday of a weekend that Ms. Blaskavitch has access, the access period shall be extended to include the holiday.

d. Ms. Blaskavitch’s first access weekend will be the weekend of October 11-14, 2019, which includes extended access for the Thanksgiving Day holiday.

[174] In making that order, James J. considered the two central pillars of MacEachern J.’s reasons:

[41] In my view, two central pillars of Justice MacEachern’s decision are that it is in Nathan’s best interests to live and go to school in Petawawa and that he should have more contact with Mr. Smith. The possibility that he should have less contact with Ms. Blaskavitch was not part of the landscape during the trial. Also not part of the landscape during the trial was the possibility of Mr. Smith becoming Nathan’s primary parent. Now it is.

[42] I appreciate that Mr. Smith did not request to become Nathan’s primary parent in his efforts to spend more time with his son. He was not seeking to displace Ms. Blaskavitch although Justice MacEachern found that Ms. Blaskavitch sought to marginalize Mr. Smith. As a result of Ms. Blaskavitch’s move to Ottawa, it seems to me that the only way to put the core of Justice MacEachern’s findings into action is to direct that Nathan be returned to Petawawa and placed in the primary care of his father.[^58]

[175] The James order provides that exchanges shall take place at the Antrim Truck Stop at 5:30 p.m. on Friday and at 4:00 p.m. on Sunday. In May 2021, the location of the exchanges was changed on the consent of the parties. With Ms. Blaskavitch having relocated to Chalk River by then, the Antrim Truck Stop was no longer a convenient location for the exchanges. The parties agreed to carry out exchanges at a Tim Horton’s location in Petawawa.

[176] When appearing before Doyle J., for a case conference in July 2021, the parties consented to a temporary order which provides that they shall “remain in their [respective] vehicles during the exchange[s] except if a parent needs to exit the vehicle briefly to ensure Nathan’s safety”. On the same date the parties consented to an order requiring them to refrain from attending each other’s residences.

[177] Against the backdrop of those orders, I consider the relief sought by the parties with respect to the parenting schedule.

b) The Positions of the Parties

▪ Ms. Blaskavitch

[178] Ms. Blaskavitch asks the court to vary the final order of James J. and impose a week-on, week-off parenting schedule. Ms. Blaskavitch did not articulate a material change upon which she relies in support of that change. She relies on the maximum contact principle. Ms. Blaskavitch asks the court to disregard the criminal charges against her, which were still pending, in August 2022, when the parties made their respective submissions.

[179] Ms. Blaskavitch proposes that exchanges take place at the O.P.P. station on Petawawa Boulevard in Petawawa. In the alternative, Ms. Blaskavitch proposes Nathan’s school, describing it as the simplest and most suitable location for exchanges. She highlights that the school was the exchange location in February and March 2020, in the weeks immediately preceding the pandemic.

[180] Ms. Blaskavitch submits that it is important for Nathan that the amount of time he spends with his mother be increased, not decreased, from the time provided by the existing parenting schedule.

▪ Mr. Smith

[181] Mr. Smith relies on the same material change for the parenting schedule that he relies on for decision-making – the change in Ms. Blaskavitch’s behaviour since September 2019.

[182] Mr. Smith asks that the parenting schedule be varied to limit Ms. Blaskavitch’s parenting time to every second weekend.

[183] Mr. Smith asks the court to change the exchange location to the Family and Children’s Service Supervised Access Program in Pembroke (“SAP”). That location is a 15-minute drive from Mr. Smith’s home in Petawawa and a 30-minute drive from Ms. Blaskavitch’s home in Chalk River. Mr. Smith proposes this setting to eliminate contact between the parties, and therefore Nathan’s potential exposure to conflict, during exchanges.

[184] Mr. Smith highlights that the SAP sets the time for exchanges. He submits that having those times set by the SAP would be helpful to eliminate confusion or miscommunication about the time of day at which exchanges are to occur.

[185] As an alternative, Mr. Smith proposes that the parties continue to use a Tim Horton’s for exchanges – either the current location on Petawawa Boulevard or another franchise on Doran Road.

c) Analysis

i) The Regular Parenting Schedule

[186] For the reasons set out under Issue No. 1, I find that, with respect to the parenting schedule, there has been a material change within the meaning of the threshold question. Even as of September 2019, Ms. Blaskavitch had a history of overholding Nathan. It was reasonable to expect that following James J.’s order, Ms. Blaskavitch would follow the parenting schedule. Neither the change, as found, in Ms. Blaskavitch’s behaviour or her continuing disregard for court orders could have been reasonably expected.

[187] Nathan is not yet eight years old. The early years of his life have been filled with exposure to his mother’s unstable housing situation, his mother’s confrontational behaviour with his father and with people in his father’s life (i.e., partner and daycare provider), repeated interviews by FCS, and his mother’s inability to adhere to the court-ordered parenting schedule. Nathan needs a stable environment with two parents upon whom he can count to create that stability.

[188] I move to the second stage of the material change inquiry. I consider how the material change found at stage one of the inquiry impacts on all aspects of Nathan’s life. All of the factors relevant to the regular parenting schedule set by James. J. in September 2019 are considered in light of the new circumstances. Taking a child-focused approach, I will determine the regular parenting schedule that is in Nathan’s best interests.

[189] Ms. Blaskavitch has not satisfied me that an increase in her parenting time with Nathan is in his best interests at this stage of his life.

[190] Is it in Nathan’s best interest that the regular parenting schedule be varied so that Ms. Blaskavitch has parenting time with Nathan every second weekend instead of two consecutive weekends out of every three? For the reasons which follow, I answer that question in the affirmative.

[191] Mr. Smith’s uncontradicted evidence is that Ms. Blaskavitch’s time with Nathan is having a negative effect on Nathan. For example, Mr. Smith is concerned that if Nathan is at a friend’s home, Ms. Blaskavitch will attend at the home and behave inappropriately. As a result, Mr. Smith stays at the friend’s home if Nathan attends for a play date. Mr. Smith declines invitations for Nathan to sleep over at friends’ homes. Based on Ms. Blaskavitch’s behaviour in the past three-plus years, I find that Mr. Smith’s concerns in that regard are validly held and reasonable. Ms. Blaskavitch’s inappropriate behaviour has been widely varied and unpredictable.

[192] Mr. Smith noted that even by the fall of 2021, when Nathan was only 6.5 years old, Nathan had begun to discuss subjects which Mr. Smith did not raise with him – such as Mr. Smith’s lawyer. Based on that evidence and the above-quoted Facebook post directed to Nathan, I draw an inference and find that Ms. Blaskavitch discusses adult subjects (the family law proceeding and Mr. Smith’s lawyer) with Nathan.

[193] Mr. Smith’s uncontradicted evidence is that Nathan appears both nervous and confused when he goes to Ms. Blaskavitch’s home for scheduled parenting time. Mr. Smith describes Nathan as double-checking the schedule during video calls with Mr. Smith when Nathan is at his mother’s home.

[194] Ms. Blaskavitch testified about Nathan vomiting when he is with her. She attributes this phenomenon to stresses which Nathan faces when in his father’s care. There is no medical evidence to assist the court in determining the cause of Nathan’s vomiting. Ms. Blaskavitch’s evidence about the cause of the vomiting is nothing more than speculation. The evidence of Nathan vomiting when in his mother’s care is, however, a factor which I consider in determining the parenting schedule.

[195] Mr. Smith expressed concern about the impact on Nathan of the examples set by Ms. Blaskavitch, ranging from her confrontational and assertive behaviour towards others to her decision to pursue a medical release from the military as opposed to a form of post-military employment.

[196] Ms. Blaskavitch acknowledges that she needs to work on her well-being and improve how she interacts with others. Her testimony on the motion to change includes that she has, at least at times, been unable to fully take care of herself.

[197] Ms. Blaskavitch’s inability to moderate or regulate her behaviour creates stress and uncertainty for Nathan. I find that it is in Nathan’s best interests that the parenting schedule be varied, and that it be simple and easy for Nathan to understand and remember. I also find that it is in Nathan’s best interests that the stress he experiences because of upcoming weekend time at his mother’s home be reduced. I find that the parenting schedule proposed by Mr. Smith – every second weekend with Ms. Blaskavitch – is reasonable and in Nathan’s best interests.

[198] What is to happen if Mr. Smith’s schedule is such that he is unable to care for Nathan? Mr. Smith asks that para. 12 of the Robertson order be deleted. That paragraph reflects what was intended to be joint decision-making and, ultimately, a week-about schedule. Paragraph 12 of the Robertson order provides that “if a party with whom the child is scheduled to be cannot care for him for a period exceeding 24 hours, that party will notify the other party and given them the opportunity to do so.”

[199] Based on the whole of the evidence, including as summarized in these reasons, I find that it is in Nathan’s best interests that Ms. Blaskavitch’s parenting time be restricted to every second weekend.

[200] Some provision needs to be made, however, for who is to care for Nathan in the event Ms. Blaskavitch is unable to care for Nathan. In that event, then Nathan shall remain with Mr. Smith. Paragraph 12 of the Robertson order shall be deleted and replaced with a term to that effect.

[201] I am concerned about Ms. Blaskavitch’s response to these reasons and the impact of that response on her ability to care for Nathan over Easter Weekend. According to Schedule ‘A’ to the Robertson Order, Ms. Blaskavitch has parenting time with Nathan on Easter Weekend in odd-numbered years. Out of concern for Nathan’s safety, the order made at the conclusion of these reasons provides for an exception to the odd-numbered/even-numbered rotation for Easter Weekend. For Easter Weekend this year, Nathan shall remain with Mr. Smith. Ms. Blaskavitch’s regular parenting time with Nathan begins again on the weekend following the Easter Weekend.

[202] The timing of the release of these reasons is such that the parties have short notice about Easter Weekend. To the extent that plans need to be changed and the parties are inconvenienced, that is regrettable. That inconvenience does not, however, outweigh the court’s obligation to do what is in Nathan’s best interests. I find that it is in his best interests that he spends Easter Weekend with Mr. Smith.

[203] I hope that Ms. Blaskavitch understands the significance of her behaviour to the outcome of this proceeding – both historically and on this motion to change. At paragraph 40 of her reasons, MacEachern J. expressed concern about Ms. Blaskavitch’s conduct. MacEachern J. concluded that Ms. Blaskavitch’s proposal (as it was at the time of the motion to change) to move to Ottawa was not motivated by Nathan’s best interests; it was motivated “by Ms. Blaskavitch’s desire to minimize Mr. Smith’s contact with the child and role in his life.”

[204] By September 2019, when the parties were before James J., Ms. Blaskavitch had moved to Ottawa, with Nathan, without obtaining a court order permitting her to do so. For the reasons quoted above, James J. ordered that Nathan be returned to Petawawa and that Nathan would remain in Mr. Smith’s primary care.

[205] It is important to highlight that, in his September 2019 motion materials, Mr. Smith did not seek an order for primary care of Nathan. At the beginning of the hearing, James J. asked Mr. Smith if he was prepared to assume primary care of Nathan – and he was.[^59] Ms. Blaskavitch, on the other hand, told James J. that she would not be returning to Petawawa even if he ordered that Nathan must live and attend school in Petawawa.[^60]

[206] And now, because of the decline in Ms. Blaskavitch’s behaviour, the parenting schedule is changed once again; Ms. Blaskavitch will now have parenting time with Nathan every second weekend.

[207] I also hope that Ms. Blaskavitch understands that there is potential for her to resume playing a greater role in Nathan’s life – if she is subsequently able to satisfy the court that she has made progress in the work which she acknowledges is required. Ms. Blaskavitch must continue the work she has undertaken to improve her well-being, ability to manage stress, interactions with others, and ability to look after herself. Ms. Blaskavitch must continue to work on improving her ability to engage in parenting Nathan without incidents at exchanges, without exposing Nathan to adult conflict, without discussing the family proceeding with Nathan, and by acting as a positive role model for Nathan.

[208] I turn next to the exchanges.

ii) The Exchanges

[209] I am not satisfied that the evidence supports a change in location from the Tim Horton’s on Petawawa Boulevard to any other location. The Tim Horton’s is familiar to Nathan, provides a public setting for the exchanges (which is intended to promote appropriate behaviour), and is relatively close to the parties’ respective homes. There is minimal evidence of any incidents between the parties occurring during exchanges at the Tim Horton’s.

[210] Keeping the exchanges at the same Tim Horton’s location maintains consistency and stability for Nathan. The existing term which requires the parties to remain in their respective vehicles – except if Ms. Smith walks with Nathan for safety reasons – reduces the potential for conflict between the parties during exchanges.

[211] Requiring the parties to drive to the SAP in Pembroke increases the time that they spend on the highway with Nathan – going in one direction or the other. The extra travel time takes away from the time that Nathan has to spend with each of the parties and in going about his daily routine.

[212] One of the reasons why Mr. Smith proposes reliance on the SAP is to reduce communication between the parties related to the time of day at which exchanges will occur. Ms. Blaskavitch’s communication with Mr. Smith about exchange times has, in the past, been inappropriate in tone and content. Her communication on that subject has also been excessive at times.

[213] The order made in the concluding section of these reasons addresses communication about exchanges. The relevant terms are intended as parameters for the parties’ communication on the subject. Ms. Blaskavitch acknowledges that she needs to make improvements in her communication with others. By following the terms related to communication about exchange times, Ms. Blaskavitch will demonstrate to herself and others that she is capable of making positive changes in her life – including because it is in Nathan’s best interests for her to do so.

Issue No. 3 – Child Support and Section 7 Expenses

a) Child Support

i) The Existing Terms

[214] The MacEachern order addresses child support and Section 7 expenses. Regarding child support, the order covers the following topics:

• Child support payable for the period from June 1, 2018 to August 30, 2019;[^61]

• Child support effective September 1, 2019;[^62]

• The exchange of financial information to permit the parties to adjust child support payable to August 30, 2019 and effective September 1, 2019;[^63] and

• The adjustment of child support effective June 1 in each subsequent year.[^64]

[215] The terms of the MacEachern order regarding child support and Section 7 expenses are premised on a parenting schedule which saw Nathan moving regularly between his parents’ respective homes.[^65]

[216] The parties’ circumstances changed effective September 30, 2019, with the James order. Since that date, Nathan has been residing primarily with Mr. Smith; Ms. Blaskavitch’s parenting time occurs two consecutive weekends out of every three weekends.

[217] The James order addresses child support payable by (a) Mr. Smith from June 1 to September 30, 2019, and (b) Ms. Blaskavitch effective October 1, 2019.[^66] Effective October 1, 2019, Ms. Blaskavitch was to pay Mr. Smith monthly child support of $581.[^67] That amount is based on Ms. Blaskavitch’s Line 150 income of $62,499 for 2018.

[218] There has been no determination of child support from June 1, 2020 forward. Pursuant to a combination of the Robertson order and the MacEachern order, the parties are to review and adjust child support effective the 1st of June every year as follows:

The parties agree to review the child support arrangements on an annual basis and based on the percentage of time the child is with each parent; effective June 1^st^ of each year, the parties shall undertake a review of the child support arrangements to ensure that they are consistent with the Child Support Guidelines. To this end, each party shall provide to the other a copy of his or her income tax return, as filed, by or before June 15^th^ of each year.[^68]

[219] At para. 19 of her order, MacEachern J. provides that, “If the parties are unable to agree on the adjustments to child support, either may apply to the court to determine the issue.” In his response to the motion to change, Mr. Smith asks the court to determine Ms. Blaskavitch’s monthly child support from June 1, 2020 forward. Mr. Smith also asks the court to impose terms, the effect of which would be to minimize the requirement for the parties to return to court to adjust child support (and Section 7 expenses) in the future.

ii) The Positions of the Parties

▪ Mr. Smith

[220] Mr. Smith’s position is that the monthly child support effective June 1, 2020, is $635. He bases that amount on the Line 150 income of $68,052 in Ms. Blaskavitch’s 2019 tax return.[^69]

[221] For June 1, 2021 to May 31, 2022, Mr. Smith asks the court to base Ms. Blaskavitch’s monthly child support on the total of (a) the Line 150 income from Ms. Blaskavitch’s 2020 tax return, and (b) the Veterans Affairs Canada (“VAC”) awards paid to Ms. Blaskavitch in 2020.

[222] For June 1, 2022 to May 31, 2023, Mr. Smith asks the court to impute income to Ms. Blaskavitch based on (a) income at a level at which Ms. Blaskavitch is capable of earning had her career in the military continued, and (b) lump sum VAC awards received by her, in both 2020 and 2021 (“the VAC awards”), and which do not form part of her Line 150 income in either year. With respect to (a), the imputation of income, Mr. Smith asks the court to impute an annual income of $70,236 (unindexed). That amount is based, in part, on Ms. Blaskavitch’s monthly income from the military of $5,083.33.[^70]

[223] For the VAC awards, Mr. Smith asks the court to (a) convert the total of the non-taxable payments received to an annualized amount based on a life expectancy of 84 years for female Canadians, and (b) add the amortized annual amount(s) to Ms. Blaskavitch’s income for the relevant period:

• For the VAC awards totaling $152,433, paid to Ms. Blaskavitch in 2020, Mr. Smith asks the court to add $2,931 per year to the annual income upon which child support from June 1, 2021 forward is based;

• For the VAC award of $111,467, paid to Ms. Blaskavitch in 2021, Mr. Smith asks the court to add $2,186 per year to the annual income upon which child support from June 1, 2022 forward is based; and

• The combined effect of the two VAC awards is such that Mr. Smith asks the court to order that $5,117 be included in Ms. Blaskavitch’s income for the purpose of determining child support from June 1, 2022 forward. [^71]

[224] Mr. Smith submits that it is in Nathan’s best interests that there be as much certainty as possible with respect to Ms. Blaskavitch’s child support obligations from this point forward. To that end, for the adjustments required from June 1, 2023 forward, Mr. Smith asks the court to order that child support be based on the greater of (a) Ms. Blaskavitch’s actual earnings from the Department of National Defence (“DND”) plus each of the two amortized figures set out immediately above, or (b) Ms. Blaskavitch’s actual income. Mr. Smith submits that such an order would eliminate the requirement for the parties to repeatedly return to the court to litigate and adjust Ms. Blaskavitch’s child support obligations.

▪ Ms. Blaskavitch

[225] Ms. Blaskavitch does not dispute that she has an obligation to pay child support.

[226] Ms. Blaskavitch’s position is that the VAC awards should not be included in her income for the purpose of determining child support. Ms. Blaskavitch asks the court to treat the VAC awards as payments related to personal injury which she suffered. She submits that regardless of either the source of or the purported basis for the lump sums paid, it would be “unethical” and “set a dangerous precedent” for the court to consider the VAC awards when determining child support.

[227] In addition, Ms. Blaskavitch seeks child support retroactive to the years 2015 and 2016.

iii) The Law

[228] The parties, once married, are now divorced. The determination of child support is governed by s. 15.1 of the Divorce Act[^72] and the Federal Child Support Guidelines[^73] (“the Guidelines”). Pursuant to ss. 15.1(1) and (3) of the Divorce Act, a court making an order for child support is required to do so in accordance with the Guidelines.

[229] I start by reviewing the overall objectives set out in s. 1 of the Guidelines:

(a) to establish a fair standard of support for children that ensures that they benefit from the financial means of both spouses after separation;

(b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;

(c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support order and encouraging settlement; and

(d) to ensure consistent treatment of spouses and children who are similar in circumstances.

[230] The Guidelines include 25 additional sections which cover a wide range of subjects. The topics covered include definitions of relevant terms and phrases; how income may be calculated; and the continuing obligations of both the payor spouse and the recipient spouse to produce relevant financial information.

[231] Mr. Smith asks the court to impute income to Ms. Blaskavitch, from the spring of 2021 forward, based on the income she was earning at that time (i.e., prior to any release or discharge from the military that may already have or subsequently come into effect). Section 19 of the Guidelines is titled “Imputing Income”. Mr. Smith relies on s. 19(1)(a), which provides as follows:

The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse …

[232] Regarding the VAC awards, Mr. Smith relies on the decision of Trousdale J. in Hewitt v. Rogers.[^74] Trousdale J. was required to determine whether tax-free, lump sum disability awards received by Mr. Rogers from VAC should be accounted for and included as income for the purpose of determining child support. The total amount of the awards received by Mr. Rogers over several years was $343,459.

[233] The parties in Hewitt had never been married. As a result, child support was determined pursuant to the Child Support Guidelines (Ontario).[^75] The similarities between the provincial guidelines and the Guidelines are such that the principles from Hewitt are applicable when the court determines child support under the Guidelines.

[234] In Hewitt, Trousdale J. carried out a detailed review of the case authorities regarding the treatment, for the purpose of child support, of VAC pensions historically paid to veterans under the Pension Act[^76] and non-taxable lump sum awards paid, since 2006, under the New Veterans Charter.[^77]

[235] All the payments to Mr. Rogers were made under the New Veterans Charter. Ms. Hewitt asked the court to impute income to Mr. Rogers based on his receipt of those non-taxable lump sum disability awards.

[236] At para. 77, Trousdale J. concluded that it is consistent with the objectives of the provincial guidelines for the court to exercise discretion and adjust income, in accordance with the guidelines, where the total income otherwise found under the guidelines does not provide the fairest determination of a spouse’s income available for child support.

[237] Trousdale J. then considered the way in which VAC now, through the New Veterans Charter, assists members of the CAF and veterans who are injured or disabled as a result of their military service. Trousdale J. reviewed the relevant statutes and information before the court from Veterans Affairs and Government of Canada websites about lump sum disability awards paid pursuant to the New Veterans Charter. The review spans more than three pages of the decision.[^78]

[238] I note that none of the website information that was before Trousdale J. in Hewitt is in evidence on the matter before this court.

[239] Trousdale J. made the following findings and reached the following conclusions with respect to the lump sums paid to Mr. Rogers under the New Veterans Charter:

• Mr. Rogers could not count on receiving any additional disability awards in compensation for the serious injuries and/or disabilities suffered during his military service;[^79]

• It would be unjust to include the full amount of each lump sum received as income in the year in which it was received;[^80]

• It would also be unjust to amortize each lump sum payment over the ten-year period proposed by Ms. Hewitt;[^81]

• It could not, however, be ignored that Mr. Rogers had received a substantial sum of money which had increased his financial means;[^82]

• Section 19 of the provincial guidelines does not set out an exhaustive list of the circumstances in which the court’s discretion to impute income may be exercised. It was therefore open to the court to exercise its discretion with respect to the lump sums paid to Mr. Rogers;[^83] and

• In the absence of actuarial evidence as to the best way to deal with the lump sum payments for the purpose of determining Mr. Rogers’ child support payments, it was reasonable to rely on life expectancy figures from Statistics Canada to allocate the lump sum payments over Mr. Rogers’ life (i.e., calculating the annual benefit to Mr. Rogers derived from the receipt of the lump sum payments).[^84]

[240] Mr. Rogers was 42 years old at the date of the hearing; his life expectancy was to age 79. By way of example, Trousdale J. considered the $210,893 lump sum payment made to Mr. Rogers when he was 39 years old. That amount was amortized over the 40 remaining years of Mr. Rogers’ life expectancy to arrive at an annual financial benefit to Mr. Rogers of $5,272.[^85]

[241] Trousdale J. highlighted that there was no guarantee that Mr. Rogers would receive any further disability awards, any legislative top ups to the disability awards already made, or any other non-taxable amounts from VAC and/or other sources.[^86] Despite the lack of such a guarantee, Trousdale J. required Mr. Rogers to “forthwith” notify Ms. Hewitt if he received any of those types of payments in the future.[^87]

[242] In support of her position, Ms. Blaskavitch relies on a decision in Phelps v. Childs.[^88] That decision is a three-page addendum to the reasons for decision after a trial. The addendum was released to cover matters about which the presiding judge had omitted to make rulings. One of the issues at trial was the treatment, for the purpose of Section 7 expenses, of income received by Ms. Childs from a structured settlement (resulting from personal injury litigation).

[243] In the addendum, the presiding judge reiterated the conclusion reached in his reasons that it would, for the purpose of Section 7 expenses, be unfair to Mr. Phelps to ignore payments made to Ms. Childs pursuant to the structured settlement.[^89] The presiding judge added that for the purpose of determining the parties’ respective obligations for Section 7 expenses, Ms. Child’s non-taxable income (i.e., from the structured settlement) would be nominally grossed up to reflect a more fair and balanced means of determining her proportionate share of those expenses.[^90]

[244] As noted above, in Hewitt, Trousdale J. reviewed the statutory provisions and case law related to payments to CAF members and veterans under two different regimes. One of the cases she reviewed was the Divisional Court decision in Phelps v. Childs.[^91] Trousdale J. noted that the Divisional Court followed the decision of the Court of Appeal for Ontario in Hunks v. Hunks.[^92] The Divisional Court concluded that the income from Ms. Child’s structured settlement must be treated as income for the purpose of determining her spousal support obligations.

[245] Trousdale J. considered the differences between income from a structured settlement in personal injury litigation and funds received by CAF members and veterans under the New Veterans Charter. In the end, Trousdale J. concluded that some adjustment to Mr. Rogers’ income, for the purpose of child support obligations, was required to account for the increase in Mr. Rogers’ financial means, which flowed from the lump sum payments he received.[^93]

[246] In summary, I do not see how either the 2015 addendum to the trial judge’s reasons or the Divisional Court decision in Phelps v. Childs assist Ms. Blaskavitch on this issue.

iv) Analysis

▪ 2015-2016

[247] Ms. Blaskavitch’s claim for child support retroactive to 2015 and 2016 is dismissed. Those years pre-date the final orders of Robertson J. (2017), MacEachern J. (2019), and James J. (2019). A term to this effect is included in the order made in the concluding section of these reasons.

▪ 2020-2021

[248] Mr. Smith requests that monthly child support from June 1, 2020 to May 30, 2021 be based on the Line 150 income of $68,052 in Ms. Blaskavitch’s 2019 tax return. Ms. Blaskavitch does not contest that request. The order made at the conclusion of these reasons provides for child support of $635 from June 1, 2020 to May 31, 2021 – based on Ms. Blaskavitch’s Line 150 income for 2019 of $68,052.

▪ 2021-2022

[249] For June 1, 2021 to May 31, 2022, Mr. Smith asks the court to base Ms. Blaskavitch’s monthly child support on the total of (a) the Line 150 income from Ms. Blaskavitch’s 2020 tax return, and (b) the additional $2,931 as calculated in para. 215, above.

• Line 150 Income

[250] Ms. Blaskavitch’s notice of assessment for 2020 is attached to her November 2021 Form 13.[^94] The Line 150 income for 2020 is $64,228. Ms. Blaskavitch does not dispute the accuracy of that figure.

[251] I turn next, then, to consider the relief sought by Mr. Smith arising from the VAC awards paid to Ms. Blaskavitch in 2020.

• The VAC Awards (2020)

[252] The evidence regarding the 2020 VAC awards is found in para. 14 of Ms. Blaskavitch’s Form 14A Affidavit sworn on June 8, 2021.[^95] In her oral testimony, Ms. Blaskavitch confirmed that the six direct deposits listed therein represent all the non-taxable benefits she received from VAC in 2020. The total amount for the six deposits is $152,433.

[253] Ms. Blaskavitch does not list any of the 2020 (or 2021) VAC payments in her November 2021 Form 13.[^96] At item 14 of that document, Ms. Blaskavitch was required to disclose “Other Benefits”. Ms. Blaskavitch listed a Veterans Affairs payment in an amount “TBD”. She described the payment as for “Additional Pain & Suffering Payments to come for sexual assault”.[^97]

[254] In Schedule A to the November 2021 Form 13, Ms. Blaskavitch was to provide information about “Additional Sources of Income” such as net partnership income, other specified types of income, and “Any other income”. For the latter, Ms. Blaskavitch filled in the form as follows: “VETERANS AFFAIRS – APPLICATIONS ARE IN” and stated that the annual amount was “TBD”.[^98]

[255] By November 2021, when Ms. Blaskavitch prepared and filed her updated Form 13, she was aware of and had the particulars for 2020 VAC awards. Yet she failed to disclose the relevant information.

[256] The fact that Ms. Blaskavitch is self-represented is not an excuse or an explanation for her failure to disclose the relevant information:

• Ms. Blaskavitch is an experienced litigant. She has had years and numerous proceedings within this litigation during which to garner an appreciation for and understanding of the importance of both filing complete Form 13s and fulfilling her obligations, generally, to disclose financial information; and

• Ms. Blaskavitch disclosed some of the VAC award information in her June 8, 2021 affidavit. She offered no explanation as to why she did not include the relevant information in her November 2021 Form 13.

[257] November 2021 was not the only opportunity for Ms. Blaskavitch to provide the court with up-to-date financial disclosure of the purpose of the hearing. In April 2022, Ms. Blaskavitch delivered a further Form 13 Financial Statement.[^99] At p. 1, item 2 of that document, Ms. Blaskavitch was required to provide information about her employment status. She described herself as self-employed as an independent consultant for Arbonne. She provided the following particulars:

arbonne – Independent Consultant

(Home Run Business in progress of being set up; opposing counsel’s constant criminal harassment and attacks on mother and child are making INDEPENDENCE difficult). NOTE: The respondent will excuse himself from influencing my life any further for his own personal financial gain. I am permitted to make an additional $20,000 per year and maintain my benefits through Veterans Affairs Canada.

August 2021 – Department of National Defence; I was deemed “disabled” fraudulently as there was no T2201 Certificate of Disability provided for income tax purposes signaling an ongoing federal overreach issue involving Mrs. Fuller’s husband influencing this proceeding internal to the CAF & VAC. [^100]

[258] At item 7, Ms. Blaskavitch stated that her gross income for 2021 was $187,819.24. She had an obligation, once again at item 14, to set out other benefits received. In the April 2022 Form 13, she filled out that portion of the document with the following information:

• She describes the ‘Item’ as “VAC – NON-TAXABLE”;

• The details are:

PAIN & SUFFERING – physical injuries opposing counsel seeks to commit fraud against the govt and continue learning how to manipulate the system and escalate conflict to secure her own paycheque).

THIS FEDERAL FRAUD MUST BE ADDRESSED.[^101]

• The yearly market value is said by her to be $529.01;[^102] and

• Ms. Blaskavitch adds the following commentary:

NOTE: My medical expenses are so high due to the ongoing attempts by opposing counsel to infiltrate and access my medical file. Paying out of pocket secures my treatment as being for myself vs pre-payment to advance this ongoing federal narrative of corruption at my child’s expense.

My son was a pawn for the respondent then and it has only worsened since Justice James ignored evidence to permit a federal fraud scheme to occur at the expense of the taxpayers. [^103]

[259] It warrants emphasizing that the April 2022 Form 13 was prepared and filed by Ms. Blaskavitch part-way through the hearing. By April 2022, I had repeatedly informed Ms. Blaskavitch to refrain from making disparaging remarks about Mr. Smith’s counsel or about any judge of this court. Ms. Blaskavitch was directed by me on several occasions to restrict communication with Mr. Smith’s lawyer to matters relevant to this proceeding.

[260] Nowhere in the April 2022 Form 13 does Ms. Blaskavitch identify the VAC disability benefits paid in 2020.

[261] What is the difference between child support based on Ms. Blaskavitch’s Line 150 income for 2020 versus child support based on that amount plus the proposed amortized annual amount arising from the 2020 VAC awards? I estimate the difference to be approximately $5,215 (to the spring of 2037, when Nathan is 22 years old):

• Based on Line 150 income of $64,228 for 2020, the monthly child support is $597;

• When the amortized amount for the 2020 VAC awards ($2,931) is added to the above-noted Line 150 income, the total annual income is $67,159. Based on that amount, the monthly child support is $625;

• The annual difference between these two scenarios is $336;[^104]

• Assume that child support obligations run to May 31, 2037 – allowing for Nathan to complete high school and four years of post-secondary education. The present value of the additional $336 per year from June 1, 2021 to May 31, 2037 is $5,215.[^105]

[262] What is the court to do in the absence of the type of evidence that was before Trousdale J. in Hewitt? First, I point out that the court does not take judicial notice of the information summarized by Trousdale J. in Hewitt.[^106]

[263] Second, in the absence of full particulars from Ms. Blaskavitch, Mr. Smith was not without options to present the relevant evidence to the court. For example, he could have made a motion for production of records from a third party – VAC. Alternatively, Mr. Smith could have called an individual from VAC to testify at the hearing.

[264] Mr. Smith was not obligated to explain why he chose not to attempt to obtain and/or present the evidence in either manner. From either a cost-benefit or proportionality perspective, one can see why Mr. Smith would not have wanted to incur significant legal costs to put better evidence before the court on the issue of the VAC awards.

[265] Regardless, in the absence of the relevant evidence, Mr. Smith is not entitled to the relief he requests with respect to the VAC awards.

[266] The lack of evidence as to the specific nature of and/or basis for the 2020 VAC awards is such that I am unable to conclude that the payments should be amortized and included in Ms. Blaskavitch’s annual income for the purpose of determining child support.

• ­Conclusion

[267] I find that monthly child support from June 1, 2021 to May 31, 2022 is $597 – based on Ms. Blaskavitch’s Line 150 income for 2020 of $64,228. The order made at the conclusion of these reasons reflects that finding.

▪ 2022 - 2023

[268] For the adjustment of child support effective June 1, 2022, Mr. Smith asks the court to rely on the higher of the following two amounts:

• Ms. Blaskavitch’s Line 150 income for 2021 plus the amortized adjustments for the 2020 and 2021 VAC awards; and

• Income imputed to reflect the salary Ms. Blaskavitch is capable of earning in the military plus the amortized adjustments for the 2020 and 2021 VAC awards.

• The VAC Awards (2021)

[269] For the reasons given in the preceding section of these reasons, the amortized amounts for the 2020 and 2021 VAC awards are not included in the income upon which child support is based.

[270] It is once again helpful to consider the monetary significance of that determination – as it relates to the 2021 VAC awards. The proposed adjustment to Ms. Blaskavitch’s income based on the 2021 VAC awards is $745 per year less than the adjustment proposed for the 2020 VAC awards.[^107] The adjustment for the 2020 VAC awards would be made for one year more than would be the adjustment for the 2021 VAC awards.

[271] The present value of the additional child support based on the 2021 VAC award is less than the $5,215 calculated above with respect to the 2020 VAC awards. As an estimate only, the total additional child support (to May 31, 2037), based on the VAC awards (2020 and 2021), is approximately $10,000.

[272] With the VAC awards not a factor in the determination of child support, the issue is whether to base child support on Ms. Blaskavitch’s Line 150 income for 2021 or an imputed income accounting for what she could reasonably be expected to earn from her career in the military, had it continued. Mr. Smith asks that child support from June 1, 2022 to May 31, 2023 be based on the higher of those two amounts.

[273] I will first review the evidence as to Ms. Blaskavitch’s Line 150 income for 2021.

• Line 150 Income

[274] Exhibit 41 is a copy of p. 1 from Ms. Blaskavitch’s T1 2021 Tax Return Summary. The Line 150 income is $187,819.24. That amount is broken down as follows:

Employment income $ 57,786.46

Other employment income $ 25,317.00

RRSP income $ 6,023.50

Other income $ 98,692.28

[275] The entry for “Other income” includes “Specify: see schedule”. The schedule is not attached; only p.1 of the 2021 Tax Return Summary is before the court.

[276] Additional evidence regarding these four, line items was provided by Ms. Blaskavitch in cross-examination. Ms. Blaskavitch’s evidence is that the $57,786 represents her total taxable income from DND for 2021. She did not provide any explanation (oral or documentary) as to the nature or source of the “Other employment income” of $25,317.

[277] Nor did Ms. Blaskavitch provide any oral or documentary evidence as to the specific reason for the withdrawal of $6,023.50 from her RRSP in 2021. She did, however, testify generally about expenses she had incurred and was continuing to incur (a) to purchase her home in Chalk River; (b) towards her personal indebtedness; (c) to retain a lawyer to represent her on the criminal charges she is facing, and (d) to retain an employment lawyer.

[278] There is some documentary evidence to assist the court in determining the income for 2021 upon which to base child support. For example, a VAC document states that as of December 2021, Ms. Blaskavitch was receiving a monthly “Income Replacement Benefit” of $5,063.40 (gross, before taxes).[^108]

[279] Ms. Blaskavitch testified that, in 2021, she began to receive a tax-free monthly disability benefit of $529.01. She does not know when, in 2021, she began to receive that benefit. The receipt of that benefit is, however, confirmed in an April 2022 letter from VAC to Ms. Blaskavitch.[^109]

[280] Neither party presented any evidence as to the gross-up, for tax purposes, of the monthly tax-free benefit of $529.01.

[281] As I have already found, Ms. Blaskavitch is an experienced, self-represented litigant who is well-aware of the importance of her obligations to disclose financial information for the purpose of determining child support. Ms. Blaskavitch had more than sufficient time to gather the relevant financial information and present it as documentary evidence or during oral testimony. She had time to gather the relevant information both prior to the commencement of the hearing in November 2021 and during any one of the several adjournments thereafter. Yet, Ms. Blaskavitch did not gather and/or present the relevant financial information.

[282] In the absence of any evidence from Ms. Blaskavitch to explain the $25,317 in “Other employment income”, I draw an adverse inference against her and find that $25,317 is income for the purpose of determining child support effective June 1, 2022. I add to that amount the $57,786.46 of employment income. The total is $83,103.46, rounded off to $83,000.

[283] I exclude the RRSP withdrawal and the return of the pension contribution.

[284] In summary, monthly child support effective June 1, 2022, would be $774 – if that obligation is based on Ms. Blaskavitch’s actual income of $83,000 as found above.

• Imputed Income

[285] Mr. Smith asks the court to base child support effective June 1, 2022 on the higher of Ms. Blaskavitch’s Line 150 income for 2021 or an imputed income of $70,236. The higher of the two figures is the $83,000 figure determined in the preceding section. Given Ms. Blaskavitch’s failure to fully disclose the requisite financial information, I rely on the $83,000 figure as opposed to the proposed imputed income, for the purpose of determining child support effective June 1, 2022.

[286] It will, in any event, be necessary to consider imputing an income for the purpose of child support from June 1, 2023 forward. That issue is addressed in the next section of these reasons.

• Conclusion

[287] Ms. Blaskavitch’s monthly child support effective June 1, 2022, is $774 – based on Ms. Blaskavitch’s actual income of $83,000 as found above. I emphasize that this conclusion does not involve imputation of income. This conclusion is based on Ms. Blaskavitch’s Line 150 income, excluding the RRSP withdrawal and the return of the pension contribution.

▪ Child Support Effective June 1, 2023

[288] The date on which these reasons are released is less than two months prior to the date on which child support must once again be reviewed. Mr. Smith asks the court to grant relief which minimizes the requirement for the parties to return to court to litigate child support and/or Section 7 expenses. I agree that minimizing the number of times the parties return to court is in everyone’s best interests, including Nathan’s.

[289] For the adjustments to child support on June 1, 2023 and in subsequent years, Mr. Smith requests that the court impute a minimum income to Ms. Blaskavitch based on her 2021 income from DND of $70,236. That amount is, in turn, based on Ms. Blaskavitch’s actual DND income of $5,853 per month as of mid-2021.[^110]

[290] Mr. Smith asks the court to allow for indexation, as required, from 2021 forward to account for anticipated increases in wages over time.

[291] Last, Mr. Smith asks that child support from June 1 in any given year be based on the higher of $70,236 indexed to the relevant year and Ms. Blaskavitch’s Line 150 income for the relevant year. For example, effective June 1, 2023, child support would be based on the higher of the value of $70,236 as indexed to 2022 and Ms. Blaskavitch’s Line 150 income in her Notice of Assessment for 2022.

[292] If the Consumer Price Index is used as the indexation factor, then $70,236 in 2021 is indexed to $74,231 in 2022. That calculation was made relying on the Bank of Canada online inflation calculator.

[293] I will first deal with setting a minimum income and then with the indexation of the minimum income.

• Setting a Minimum Income

[294] Mr. Smith submits that $70,236 reflects the income Ms. Blaskavitch could reasonably have expected to earn in 2021 had she continued her military career at her previous rank of Master Sailor.[^111] Mr. Smith’s evidence as to Ms. Blaskavitch’s potential income is uncontradicted.

[295] In support of his request for a minimum income to be imputed, Mr. Smith relies on ss. 19(1)(a) and (f) of the Guidelines.

o Factor No. 1 – Intentional Under-employment or Unemployment

[296] Regarding s. 19(1)(a), quoted in para. 223, above, Mr. Smith asks the court to consider Ms. Blaskavitch’s conduct in the context of her employment with CAF. Mr. Smith asks the court to find that the conduct was deliberate – resulting in Ms. Blaskavitch being intentionally under-employed or unemployed. Mr. Smith submits that it was or should have been reasonably foreseeable to Ms. Blaskavitch that her conduct would result in her release from the military.

[297] For the reasons which follow, I find that Ms. Blaskavitch’s conduct was deliberate and resulted in her being intentionally under-employed and, potentially, unemployed (i.e., if released from the military).

[298] First, I refer to Ms. Blaskavitch’s conduct towards the military and its members described in earlier sections of these reasons.

[299] Second, I rely on Ms. Blaskavitch’s failure to respond to the February 4, 2021 Notice of Intent. That notice is referred to at item 4 of the February 24, 2021 letter sent to Ms. Blaskavitch by her Commanding Officer.[^112] Included in the grounds in support of Ms. Blaskavitch’s release is her failure to respond to the notice; she did not provide “representation as to why [the release] should not proceed.”

[300] Third, I rely on the other conduct cited by the Commanding Officer in his February 24, 2021 letter. At item 2, the Commanding Officer states that, since being posted to Petawawa in 2015, Ms. Blaskavitch “has been named in some 31 separate Military Police incidents.”

[301] Continuing, at item 5, the Commanding Officer identifies that, in June 2020, Ms. Blaskavitch was given a Recorded Warning for reasons set out in the relevant paperwork. The Recorded Warning ran for what is described as “the full six months”. Yet, Ms. Blaskavitch,

• “did not address the identified deficiencies in her behaviour”;

• “failed to attend all but three of her assigned progress sessions”;

• “did not attend a single progress session” following the implementation of Counselling and Probation: and

• “continued to publicly discredit members of the CAF.”

[302] When cross-examined about the contents of the February 24, 2021 letter, Ms. Blaskavitch did not deny the accuracy of the Commanding Officer’s description of her conduct. Instead, Ms. Blaskavitch expressed her belief that there are people and institutions who have “influence” over her life and career.

[303] Ms. Blaskavitch began her career with the military in no later than 2013.[^113] In one document, Ms. Blaskavitch is described by her Commanding Officer as having “demonstrated early potential in the CAF.”[^114] Yet, by February 2021, the Commanding Officer identifies that, “During the last year there has been a noticeable deterioration in” Ms. Blaskavitch’s behaviour.[^115]

[304] The nature and extent of Ms. Blaskavitch’s employment-related conduct supports a finding that she knew or reasonably should have known that her conduct would result in her release from the military. I find that Ms. Blaskavitch’s conduct was intentional within the meaning of s. 19(1)(a) of the Guidelines.

o Factor No. 2 – Failure to Provide Financial Information

[305] Mr. Smith also relies on s. 19(1)(f) of the Guidelines. Pursuant to that section, a factor the court may consider in determining whether to exercise its discretion to impute income is the support payor’s failure to provide income information when under a legal obligation to do so. Mr. Smith relies on several examples of Ms. Blaskavitch’s failure to provide income information when under a legal obligation to do so. Some examples of Ms. Blaskavitch’s failure of that kind are discussed in other sections of these reasons.

[306] A particularly egregious example of that conduct is Ms. Blaskavitch’s response to the order made by Kershman J. in October 2021 – less than one month prior to the date on which the hearing of these matters was scheduled to commence. In late October 2021, Kershman J. heard a motion by Mr. Smith for an order that Ms. Blaskavitch’s motion to change not proceed because Ms. Blaskavitch had, to that date, failed to pay child support and costs awards made against her.

[307] Kershman J. did not grant the relief requested by Mr. Smith. Instead, Kershman J. ordered Ms. Blaskavitch to deliver Form 13 and Form 35.1:

The Mother is required to serve and file Forms 13 and 35.1 pursuant to the Family Law Rules, O. Reg. 114/99. These forms must be fully and accurately completed, served and filed by the Mother no later than November 12, 2021. Failure to do so will result in the matter being struck from the trial list. The mother will not be able to refile or re-regularize her Motion to Change until such materials are filed.[^116]

[308] Kershman J. also ordered that if the materials were not filed by the stated deadline, the motion to change would be struck from the list, would not proceed on the scheduled date, and would have to be set down for another hearing date.[^117] In addition, Kershman J. ordered that Ms. Blaskavitch disclose four specific pieces of information and/or documents:

a. Her current employment status with the Canadian Armed Forces;

b. Any current criminal charges and associated conditions of release;

c. Any criminal convictions and terms of probation that she may be subject to; and

d. The current status of her military charges under the National Defence Act, R.S.C., 1985, c. N-5.

[309] Ms. Blaskavitch’s November 2021 Form 13 was filed on November 12, 2021 – the deadline set by Kershman J. It is not, however, a complete Form 13. For example, item 3 at page 2 required Ms. Blaskavitch to state her income from all sources in 2021 and provide supporting documentation. That section was left completely blank and Ms. Blaskavitch did not attach any supporting documents.

[310] Three of the four disclosure items ordered by Kershman J. were addressed prior to November 12, 2021. Information and/or documentation about the fourth disclosure item – the status of the military charges against Ms. Blaskavitch – was not filed with the court until November 24, 2021 (i.e., the day before the date on which the hearing of the motion to change was scheduled to commence).

[311] The potential consequences to Ms. Blaskavitch and, in turn, all those affected by the proceeding, could not have been more clearly stated by Kershman J. Yet, by her failure to comply with Kershman J.’s order, Ms. Blaskavitch put the hearing in jeopardy.

[312] Ms. Blaskavitch is aware of her obligation to disclose financial information to permit the parties to adjust child support as required from year to year. That obligation stems from the 2017 Robertson order. Yet, some four years later, Ms. Blaskavitch persisted in her failure to meet that obligation – at a time when she is the support payor.

[313] I find that Ms. Blaskavitch’s failure to comply with court orders and her other obligations to disclose financial information – specifically information relevant to child support – is a “circumstance” within the meaning of s. 19 of the Guidelines which supports the exercise of the court’s discretion to impute an income to her.

• Ms. Blaskavitch’s 2022 Income

[314] I compare the proposed minimum income of $70,236 (in 2021) to the income that Ms. Blaskavitch received in 2022: (a) the monthly taxable disability benefit of $5,205.18; and (b) the monthly non-taxable disability benefit of $529.01. Based on those amounts, and without any gross-up of the non-taxable disability benefit, Ms. Blaskavitch’s income in 2022 would be $68,810.28.[^118] The difference between the proposed imputed income for 2021 and the potential income for 2022 (the latter, if based only on the two monthly amounts) is $1,426.

[315] The orders made and evidence before the court provide a record of Ms. Blaskavitch’s actual income in the years 2016 through 2020:

2016 $ 56,214[^119]

2017 $ 68,197[^120]

2018 $ 62,449[^121]

2019 $ 68,052[^122]

2020 $ 64,228[^123]

[316] Ms. Blaskavitch’s historical income in those years supports a finding that it is reasonable to set a minimum income of $70,236 for Ms. Blaskavitch in the 2021 calendar year. How then, is Ms. Blaskavitch’s minimum income in future years to be determined?

• Indexation of the Minimum Income

[317] The parties require certainty to address child support over time. The Bank of Canada inflation calculator is easily accessible for the parties. Relying on that calculator, the minimum income of $70,236 in 2021 is indexed by an annual inflation rate of 5.69 per cent (from 2021 to 2022) to $74,231 in 2022.

[318] Ms. Blaskavitch may be concerned about the reliance on average inflation in the current economic climate. I note, however, that if $74,231 in 2022 is indexed to 2023, the inflation rate is 5.25 per cent and the end result is $78,125. My point is simply that, at least as of the moment, it appears the rate of inflation is decreasing.

[319] Mr. Smith did not call an expert to give economic opinion evidence. In the absence of such evidence, I find it reasonable to set a maximum indexation rate of five (5) per cent per year to balance against potential rampant inflation in any of the next 14 or so years during which child support is payable.

[320] Imposing a five (5) per cent cap on the indexation rate results in $70,236 from 2021 being indexed to $73,748 in 2022 and to $77,435 in 2023. A final, overall rate of inflation from 2022 to 2023 is not yet known. The $77,435 figure for a minimum 2023 income is an example only, not a finding.

[321] The only finding made is that for the purpose of adjusting child support effective June 1, 2023, a minimum income of $73,748 for 2022 is imputed to Ms. Blaskavitch.

[322] Ms. Blaskavitch will still be required to produce to Mr. Smith a copy of her Notice of Assessment for each taxation year and to do so in accordance with the terms for adjustment set out in the combination of the Robertson order and MacEachern order (see para. 210, above).

• ­Conclusion

[323] Child support adjustments from June 1, 2023 to the termination of child support shall be made as follows:

a) Effective June 1, 2023, child support shall be based on the higher of,

i) Ms. Blaskavitch’s Line 150 income in the Notice of Assessment for 2022; and

ii) $73,748 (being $70,236, indexed for inflation by 5 per cent from 2021 to 2022);

b) In each subsequent year during which child support is payable, child support shall be adjusted effective the 1st of June based on the higher of,

i) Ms. Blaskavitch’s Line 150 income as set out in the Notice of Assessment for the calendar year prior to the year in which the adjustment is effective; and

ii) $70,236 indexed for inflation from 2021 to the year prior to the year in which the adjustment is effective;

c) The indexation rate, and the minimum income, as indexed for inflation, shall be determined relying on the online inflation calculator from the Bank of Canada; and

d) Indexation for inflation in any given year shall be restricted to a maximum of five (5) per cent.

[324] The order made at the conclusion of these reasons includes terms to this effect.

[325] I appreciate that the method by which to determine Ms. Blaskavitch’s potential income in the years 2022 forward involves reliance on indexation for overall inflation as opposed to reliance on statistics related to changes in wages from year to year. I balance the speculative nature of that approach and its potential inaccuracies related to wage increases against the benefit to the parties and, more importantly, to Nathan of certainty of approach and minimizing the requirement for the parties to return to court to litigate child support.

[326] I also balance the speculative nature of that approach against Ms. Blaskavitch’s failure to make a voluntary child support payment prior to the commencement of the hearing and her repeated failure to meet her obligation to disclose financial information.

c) Section 7 Expenses

i) The Existing Terms

[327] The Robertson order addresses Section 7 expenses and daycare expenses separately.

[328] At para. 20, Robertson J. ordered that Section 7 expenses be shared in proportion to the parties’ respective incomes:

• As of 2017, when the order was made, Mr. Smith’s share of Section 7 expenses was 57 percent and Ms. Blaskavitch’s share was 43 per cent.

• The proportionate sharing of Section 7 expenses was continued by MacEachern J. At para. 15b, MacEachern J. ordered that the proportionate shares be revised to 55 per cent for Mr. Smith and 45 per cent for Ms. Blaskavitch.

• At para. 16b of his order, James J. continued the proportionate sharing of Section 7 expenses; effective June 1, 2019 Mr. Smith was to pay 56 per cent and Ms. Blaskavitch 45 per cent of those expenses.

[329] At para. 21 of her order, Robertson J. provided that the cost of Nathan’s “regular daily daycare shall be split evenly between the parties. The father shall reimburse the mother for half of the net cost of daycare within 7 days of receiving a proper receipt.” In 2017, Nathan was residing primarily with Ms. Blaskavitch. Paragraph 21 of the Robertson J. order was not changed by either the MacEachern order or the James order.

ii) The Positions of the Parties

▪ Ms. Blaskavitch

[330] Ms. Blaskavitch is not seeking a change to how Section 7 expenses are shared. She asks that they continue to be shared proportionate to the parties’ respective incomes.

[331] Ms. Blaskavitch asks the court to pre-approve certain activities, the expenses for which shall be included in Section 7 expenses to be shared by the parties. The activities include swimming, soccer, baseball/softball, hockey and gymnastics.

[332] In addition, Ms. Blaskavitch asks the court to order that neither party “shall schedule activities for [Nathan] during [the other] party’s time with [Nathan] unless that party has agreed in advance, such agreement not to be unreasonably withheld.”

▪ Mr. Smith

[333] Mr. Smith asserts that the only Section 7 expense currently being incurred is that for Nathan’s hot lunches at school. His position is that the parties should continue to follow the routine they have followed in the past – alternating month-by-month which parent pays for hot lunches.

[334] Mr. Smith asks the court to delete para. 20 of the Robertson order and replace it with a term which provides for equal sharing of all Section 7 expenses.

[335] Mr. Smith asks the court to maintain the equal sharing of the daycare expense provided for in para. 21 of the Robertson order. He requests that the court require Ms. Blaskavitch to pay a minimum amount each month towards daycare expenses and for an accounting on the 1st of June each (i.e., when adjustments are made for child support). Any adjustments for overpayment or underpayment would be made at the beginning of the next calendar year.

iii) Analysis

[336] There have been significant and material changes in the parties’ respective and Nathan’s circumstances since 2017 when the Robertson order was made. At that time,

• Nathan was primarily resident with Ms. Blaskavitch; he is now primarily resident with Mr. Smith;

• Both Ms. Blaskavitch and Mr. Smith were employed with the military. Ms. Blaskavitch’s employment with the military has come to an end, at least for now;

• Ms. Blaskavitch’s parenting time with Nathan is to be every second weekend and otherwise as provided in the Holiday Schedule attached as Schedule ‘A’ to the Robertson order (with the exception of changes to holiday weekends in the spring of 2023 – see the discussion in that regard below). Both parties will be required to ensure that Nathan participates in extracurricular activities which take place on the weekend; and

• Ms. Blaskavitch has demonstrated an inability to restrict her communication with Mr. Smith or his representatives to the parenting schedule, child support, and Section 7 expenses. That inability contributes to challenges for the parties in navigating Section 7 expenses as Nathan grows up.

[337] It is important for the parties and for Nathan that the requirement to return to court to address daycare and Section 7 expenses over time is minimized. Given the success that the parties have had with the way they handle the hot lunches, I see no reason to change that aspect of Section 7 expenses.

[338] I find no reason to change the term of the Robertson J. order with respect to the way in which daycare expenses are shared between the parties. The daycare expenses shall continue to be shared equally between the parties.

[339] Given that it is now Mr. Smith arranging, paying and seeking reimbursement for daycare expenses, I find there has been a material change which supports a revision of para. 21 to reflect that it is now Mr. Smith seeking reimbursement from Ms. Blaskavitch.

[340] Based on the findings previously made about the challenges that Mr. Smith faces in communicating with Ms. Blaskavitch about matters related to Nathan (including daycare costs), I find it reasonable to (a) require Ms. Blaskavitch to pay a minimum amount for daycare each month, and (b) adjust for any overpayment or underpayment (from June 1 of the previous year to May 31 of the year in which the review is carried out).

[341] I am not satisfied that there has been a material change which warrants a change from the proportionate sharing of Section 7 expenses. The parties shall continue to share those expenses – other than for hot lunches – proportionately. That said, the following calculations demonstrate that for the period commencing on June 1, 2019 and ending on May 31, 2023, the proportionate sharing of Section 7 expenses, based on actual income or income as found in these reasons, varies by a very small percentage from year to year.

• Effective June 1, 2019 the parties’ respective shares of Section 7 expenses, if based on Mr. Smith’s 2018 income of $79,582 and Ms. Blaskavitch’s 2018 income of $62,449, would be that Mr. Smith pays 56 per cent and Ms. Blaskavitch pays 44 per cent;[^124]

• Effective June 1, 2020 the parties’ respective shares of Section 7 expenses, if based on Mr. Smith’s 2019 income of $78,859 and Ms. Blaskavitch’s 2019 income of $68,052, would be that Mr. Smith pays 54 per cent and Ms. Blaskavitch pays 46 per cent;[^125]

• Effective June 1, 2021 the parties’ respective shares of Section 7 expenses, if based on Mr. Smith’s 2020 income of $80,897 and Ms. Blaskavitch’s 2020 income of $64,228, would be that Mr. Smith pays 56 per cent and Ms. Blaskavitch pays 44 per cent;[^126]

• Effective June 1, 2022 the parties’ respective shares of Section 7 expenses, if based on Mr. Smith’s 2021 income of $97,082 and Ms. Blaskavitch’s 2021 income of $83,000, would be that Mr. Smith pays 54 per cent and Ms. Blaskavitch pays 46 per cent.[^127]

[342] In 2017, pursuant to the Robertson order the proportions were Mr. Smith at 57 per cent and Ms. Blaskavitch at 43 per cent. Pursuant to the MacEachern order, the proportions were Mr. Smith at 55 per cent and Ms. Blaskavitch at 45 per cent. In September 2019, the James J. order varied the proportions to Mr. Smith at 56 per cent and Ms. Blaskavitch at 45 per cent.

[343] In an effort to minimize the requirement for the parties to return to court and litigate the proportionate sharing of Section 7 expenses, I find that there is a historical basis of at least six years which supports an order that the Section 7 expenses (other than hot lunches and daycare expenses) be shared permanently on the basis that Mr. Smith pays 55 per cent and Ms. Blaskavitch pays 45 per cent.

[344] There is insufficient evidence as to the nature of the extracurricular activities in which Nathan is currently engaged and in which he has expressed an interest to support the pre-approval of expenses requested by Ms. Blaskavitch (i.e., for swimming, soccer, baseball/softball, hockey and gymnastics).

[345] The terms set out in the order made in the concluding section of these reasons reflect the findings made in this section.

Issue No. 4 – Restraining Order

a) The Existing Order

[346] At para. 3 of her August 2021 order, Williams J. included a term which provides that Ms. Blaskavitch “shall not post information pertaining to these family law proceedings and the parenting discussions regarding Nathan Blaskavitch Smith on any social media platform.”

[347] When the parties were before Doyle J. for a case conference on August 31, 2021, they consented to an order that Ms. Blaskavitch “[shall] not threaten the father in her communications with him, nor will she post or distribute any intimate image of the father on the internet.” That term is included at para. 2 of the order of Doyle J. dated August 31, 2021.

[348] Mr. Smith now requests a detailed restraining order. In response, Ms. Blaskavitch requests that any restraining order granted apply to both parties.

b) The Law

[349] With the parties having divorced, the statutory authority for granting a restraining order is found in s. 35 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“the CLRA”). That section provides as follows:

(1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

(2) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate.

[350] Subsection 35(3) addresses the transition in 2009 from prior legislation to the current provision; the transition provision is not relevant for the purpose of this proceeding.

[351] What is meant by “reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody”? That phrase is not defined in the CLRA. The court must look to prior decisions for the meaning of that phrase.

[352] In support of his request for a restraining order, Mr. Smith refers the court to two decisions of this court: Lawrence v. Bassett and Malik v. Malik.[^128] In both decisions, the statutory authority upon which the party requesting a restraining order relied was s. 46 of the Family Law Act.[^129]

[353] Under the FLA, the test for granting a restraining order is the same as the test under the CLRA – the moving party must satisfy the court that they have “reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody”.

[354] Therefore, the principles discussed in Lawrence and/or Malik are applicable to the request for a restraining order in this proceeding. Those principles include the following:

• The onus of proof is the civil burden – a balance of probabilities;[^130]

• The moving party does not have to demonstrate an “overwhelming fear that could be understood by everyone; the standard for granting [a restraining] order is not that elevated”;[^131]

• The moving party’s fears can be of a personal or subjective nature; the court must be able to connect the applicant’s fears with the respondent’s actions;[^132]

• The moving party’s fears may be related to either or both of physical safety and psychological safety;[^133]

• A “subjective fear is sufficient so long as it is legitimate”.[^134]

[355] I will address the positions of the parties and then the application of the above-listed principles to this proceeding.

c) The Positions of the Parties

▪ Mr. Smith’s Position

[356] Mr. Smith requests that Ms. Blaskavitch be prohibited from,

i) attending within 200 metres of Mr. Smith’s residence, place of employment etc., except for the purpose of exchanges;

ii) exiting her vehicle during exchanges;

iii) while Nathan is under 18 years of age, attending within 200 metres of Nathan’s residence, place of employment, school, or daycare etc., except with Mr. Smith’s written and revocable consent filed with the local detachment of the Ontario Provincial Police (and, if found to be in Nathan’s best interests, Nathan’s school);

iv) when Nathan is over the age of 18 years, attending within 200 metres of Nathan’s residence, place of employment, or school unless Nathan consents in writing or pursuant to a further court order;

v) communicating with Mr. Smith except in relation to Nathan and by certain methods (i.e., email, WhatsApp, or a communication book), depending on the subject matter of the communication;

vi) posting on any public or social media account or online forum any content about Mr. Smith and/or other individuals related to Nathan’s care and family court proceedings; and

vii) posting on any public or social media account or online forum any family court documents related to these proceedings, legal correspondence, and emails or text communications between the parties.

[357] Mr. Smith’s position is that the proposed terms of the restraining order are intended to protect Nathan from exposure to inappropriate communication and behaviour on Ms. Blaskavitch’s part. Mr. Smith submits that Ms. Blaskavitch’s behaviour has created, continues to create, and has the potential, over time, to create stress in Nathan’s life.

[358] Mr. Smith asks the court to consider Ms. Blaskavitch’s concerning and inappropriate conduct. Some of that conduct is discussed in an earlier section of these reasons. It is not my intention to repeat that discussion here or to set out in detail the other elements of Ms. Blaskavitch’s conduct upon which Mr. Smith relies in support of his request for a restraining order. Whether by referring to specific incidents or conduct of a general nature, Mr. Smith alleges that Ms. Blaskavitch has repeatedly,

• overheld Nathan including in March/April 2020, and April, May, September, and November 2021;

• requested that the time of day for and location at which exchanges are to take place be changed (including on short notice);

• created incidents during exchanges, while Nathan is present. Those incidents include (a) at the Antrim Truck Stop in approaching Mr. Smith’s vehicle and Ms. Blaskavitch’s foot being run over; (b) making sexually inappropriate comments about Mr. Smith’s partner; and (c) the incident on base housing at Ms. Blaskavitch’s then boyfriend’s home;

• even during the period when the motion to change was proceeding, posted inappropriate content on social media and other platforms. That content includes derogatory comments about Mr. Smith; a nude photograph of Mr. Smith; personal information about Mr. Smith and Nathan’s daycare provider; parenting communications between the parties; and court documents; and

• engaged in email communication with Mr. Smith, his lawyer of record, and others, the contents of which are threatening and/or coercive and/or include inappropriate language.

[359] Mr. Smith highlights that only Ms. Blaskavitch is requesting a police enforcement clause. He is concerned that, if a police enforcement clause is included in the order, Ms. Blaskavitch would rely on the clause unreasonably and unnecessarily. There are three police services in the region. Mr. Smith submits that it is only Ms. Blaskavitch who has repeatedly resorted to reliance on the police – typically when she wants to change either the time of day or location for an exchange.

[360] Mr. Smith submits that to permit the parties to resort to police enforcement would not be in Nathan’s best interests. Mr. Smith explains that the restraining order he proposes is detailed in part because he asks that the order made on the motion to change not be enforceable by the police.

▪ Ms. Blaskavitch’s Position

[361] Ms. Blaskavitch does not include a restraining order in the relief sought in her motion to change. During oral submissions, in reply, Ms. Blaskavitch submitted that a restraining order, if made, should be mutual (i.e., apply to both parties). Ms. Blaskavitch did not cite any conduct on Mr. Smith’s part in support of that submission.

[362] Ms. Blaskavitch highlights that as of August 2022, when oral submissions were being made, she did not have a criminal record.

[363] If a communication tool is to be used, Ms. Blaskavitch requests that it be the Family Wizard app. Ms. Blaskavitch believes that the app is both tracked and monitored. She notes that the parties would also be able to upload receipts (i.e., daycare receipts) to the app.

[364] Ms. Blaskavitch points to the lack of evidence regarding the potential for the parties to successfully communicate using a communication book. She acknowledges that the parties had done so in the past.

d) Analysis

[365] Based on the whole of the evidentiary record, I am satisfied on the balance of probabilities that Ms. Blaskavitch’s behaviour gives rise to reasonable grounds on Mr. Smith’s part to fear for his safety and for Nathan’s safety. For both Mr. Smith and Nathan, I define “safety” as including both physical and psychological safety.

[366] Addressing Ms. Blaskavitch’s conduct in the context of the test to be met for a restraining order to be granted, I note the following:

• Ms. Blaskavitch’s conduct during exchanges has, at times, put Nathan’s physical and psychological safety in jeopardy;

• Ms. Blaskavitch’s persisting use of emails and social media postings to communicate in a threatening and/or inappropriate manner is particularly telling considering (a) the consent orders described above, and (b) Ms. Blaskavitch’s threatening and inappropriate emails to Mr. Smith’s counsel while the motion to change was proceeding. The quality of Ms. Blaskavitch’s communication with Mr. Smith and his lawyer was even the subject of a term of the interim endorsement released when the decision on the motion to change was taken under reserve (see para. 4 of the August 26, 2022, endorsement); and

• Ms. Blaskavitch fails to appreciate the jeopardy to Nathan’s well-being in the long-term because of the digital footprint she is creating. That footprint has the potential to be available for years to come – including years in which Nathan will be old enough to search for and find the content on the Internet.[^135]

[367] I find that Ms. Blaskavitch has demonstrated disregard for court orders, including those to which she consented. I am satisfied that it is in Nathan’s best interests and in the interests of justice that a restraining order be granted. The specific terms of the restraining order are set out in the order made at the conclusion of these reasons.

Issue No. 5 – Police Enforcement

[368] Ms. Blaskavitch requests that the order made be police enforceable. Mr. Smith asks that there be no police enforcement clause; he is concerned that Ms. Blaskavitch will unnecessarily resort to the police enforcement clause.

[369] At the heart of these reasons and the order made in the concluding section of these reasons is Nathan’s best interests, including to reduce the instability of his routine and his exposure to adult conflict. Nathan needs certainty and he needs to know that his parents can communicate with one another about his well-being, routine, and activities, etc.

[370] I share Mr. Smith’s concern that Ms. Blaskavitch will unnecessarily and unreasonably resort to a police enforcement clause. To put Ms. Blaskavitch in a position to be able to do so runs contrary to a child-focused approach to the outcome of this proceeding. Ms. Blaskavitch’s request for a police enforcement clause is dismissed.

Issue No. 6 – Vexatious Litigant

a) The Existing Order

[371] While the decision on the motion to change was under reserve, the parties were subject to the following restriction with respect to bringing any further proceedings:

Neither party shall, without leave of the court, file any additional documents in this proceeding – whether related to the motions to change or otherwise. A party who seeks to file additional documents shall request a case conference, inform the opposing party in writing of (a) the additional documents, and (b) the reason why the moving party wishes to file the additional documents. The moving party shall file with the court a copy of that communication (i.e., for the court to review prior to the case conference). That written communication (to the opposing party or to the opposing party’s counsel) shall be restricted to two pages.[^136]

[372] Between August 26, 2022 and the date of these reasons, any requests for case conferences were brought by the court’s administrative staff to my attention, as the judge seized of the matter. Four requests for a case conference were made by Ms. Blaskavitch; each of those requests was denied.[^137]

[373] There is otherwise no temporary or final order in which the parties’ respective litigation styles are addressed. Mr. Smith seeks both declaratory relief and other substantive relief addressing Ms. Blaskavitch’s litigation conduct.

b) The Law

[374] The request for declaratory and substantive relief arising from allegedly vexatious litigation conduct is determined pursuant to s. 140 of the Courts of Justice Act.[^138] Subsection 140(1) is titled “Vexatious proceedings” and provides as follows:

(1) Where a judge of the Superior Court of Justice is satisfied, on application, that a person has persistently and without reasonable grounds,

(a) Instituted vexatious proceedings in any court; or

(b) Conducted a proceeding in any court in a vexatious manner, the judge may order that,

(c) No further proceeding be instituted by the person in any court; or

(d) A proceeding previously instituted by the person in any court not be continued,

except with leave of a judge of the Superior Court of Justice.

[375] The principles to follow when determining a motion or an application for a declaration and other relief arising from allegedly vexatious litigation conduct are found in the case law.

[376] The word, “vexatious” means “causing or tending to cause annoyance, frustration, or worry”.[^139] A proceeding is said to be vexatious “when the party bringing it is not acting bona fide, and merely wishes to annoy or embarrass his opponent, or when it is not calculated to lead to any practical result”.[^140]

[377] I have no doubt that, as Nathan’s mother, Ms. Blaskavitch believes she is acting in Nathan’s best interests. I am satisfied that Ms. Blaskavitch’s conduct is, at least in part, based on her genuine desire for the relief she has requested from this court over time. It is also clear, however, that Ms. Blaskavitch’s intention has, at least at times, been to annoy or embarrass Mr. Smith.

[378] Every parent hopes they are given the opportunity to establish a strong and healthy bond with their child. On that level, Ms. Blaskavitch’s motivation is genuine. The outcome on this sixth issue in the proceeding, however, turns on more than Ms. Blaskavitch’s motivation at a basic level. The outcome turns on the principles established by the case law; those principles are broader in scope than a dictionary definition of a “vexatious proceeding”.

[379] Principles frequently cited are those set out by Henry J. in Re Lang Michener et al. and Fabian et al..[^141] The principles bear repeating:

(a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;

(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;

(f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious;

(g) the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.[^142]

[380] For a litigant to be vexatious, their conduct is not required to fall within the scope of each of the Lang Michener categories. In addition, the court is entitled to take into consideration a litigant’s conduct “outside the courtroom”.[^143]

c) The Positions of the Parties

▪ Mr. Smith’s Position

[381] In oral submissions, Mr. Smith’s counsel reviewed the litigation history in detail. Some of that history is discussed in the analysis section which follows below. Mr. Smith asks the court to consider not only the nature of Ms. Blaskavitch’s litigation conduct; he also asks the court to consider the instructional comments (for the parties) in the endorsements and reasons released over time in this proceeding.

[382] Against that backdrop, Mr. Smith asks the court to address the extent to which Ms. Blaskavitch’s conduct demonstrates her inability to learn from and alter her litigation conduct.

[383] Mr. Smith also asks the court to consider the extent to which Ms. Blaskavitch has attempted to manipulate her position in the proceeding to avoid paying costs. He cites for example, Ms. Blaskavitch’s refusal to pay costs, awarded to Mr. Smith, following the release of MacEachern J.’s reasons on the motion to change (heard in 2018 and determined in 2019). Ms. Blaskavitch refused to pay costs, child support, and her share of daycare expenses (all as ordered by MacEachern J.) pending the outcome of her appeal from that decision; ultimately, Ms. Blaskavitch never took the steps to perfect her appeal.

[384] As another example of Ms. Blaskavitch’s vexatious conduct, Mr. Smith points to serious allegations made by Ms. Blaskavitch which led to the parties consenting to an order for the Office of the Children’s Lawyer (“OCL”) to become involved in this proceeding. Despite the potential OCL involvement stemming solely from those allegations, Ms. Blaskavitch never filled out the forms required by the OCL. In the end, the OCL did not become involved in the proceeding.

▪ Ms. Blaskavitch’s Position

[385] In her oral submissions and while giving evidence, Ms. Blaskavitch frequently raised the issue of access to justice as a motivating factor behind her behaviour. Ms. Blaskavitch asserts that all she has ever done is to follow the procedure required on a motion to change. Ms. Blaskavitch submits that the court should consider the type of declaratory and other forms of vexatious litigant relief sought by Mr. Smith to be relief of last resort. Her position is that such relief is not warranted in the circumstances of this proceeding.

d) Analysis

[386] I find that Ms. Blaskavitch’s conduct falls squarely within several of the principles enumerated in para. 371, above. It is not my intention to list every aspect of Ms. Blaskavitch’s conduct which falls into any one of those categories. I will instead cite examples or summarize some of the conduct upon which I rely in granting a declaration that Ms. Blaskavitch is a vexatious litigant.

[387] It is important to remember that the court is entitled to consider the “whole history of the matter”.[^144] In the following paragraphs, I highlight some of the findings previously made regarding Ms. Blaskavitch’s litigation conduct, the reasons for those findings, and Ms. Blaskavitch’s litigation conduct since the spring of 2021 when she commenced the motion to change now before the court.

[388] In her reasons, MacEachern J. found that Ms. Blaskavitch’s proposal to move with Nathan to Florida (later abandoned) and, ultimately, to Ottawa was “motivated by her wish to prevent an increase in Mr. Smith’s access to and to try to avoid the change [from Nathan being in her primary care] to joint custody, as provided for in [the Robertson order]” and her “desire to minimize Mr. Smith’s contact with the child and role in his life”.[^145]

[389] The extent to which Ms. Blaskavitch attempts to re-litigate matters previously decided is in part demonstrated by her reference, during oral submissions before me, to her move to Ottawa and her attempt, even as of August 2022, to justify her move and portray a different picture than as found by MacEachern J. For example, on the motion now before the court, Ms. Blaskavitch submitted that, as the parent with primary care of Nathan, and pursuant to the terms of the Robertson order, she had authority to make the move to Ottawa. That submission completely ignores paragraph 16 of the Robertson order, which paragraph remains in force to this day; that submission also ignores the findings made by MacEachern J.

[390] Under the heading “Mobility”, paragraph 16 of the Robertson order says, “Neither party will move the child from Renfrew County without first providing 90 days’ written notice and obtaining the written consent of the other parent or a court order.” There is no evidence that Ms. Blaskavitch either obtained Mr. Smith’s consent or a court order permitting her to move with Nathan to Ottawa, as she did while the decision on the motion before MacEachern J. was under reserve.

[391] I also consider Ms. Blaskavitch’s conduct as it relates to costs awarded to Mr. Smith prior to May 2021. For example, in the fall of 2019, Ms. Blaskavitch consents to pay Mr. Smith costs totalling $15,000. The costs are to be paid in four equal monthly instalments of $3,750 from September through December 2019. Ms. Blaskavitch defaults in three of the four payments.

[392] In the summer of 2020, Ms. Blaskavitch is faced with garnishment proceedings commenced to recover costs awards made against her. In response to those proceedings, she tells Mr. Smith that (a) she will be receiving a lump sum payment from the military; (b) it was, prior to the garnishment proceedings, her intention to pay the costs from the lump sum payment; and (c) because of the garnishment proceedings, she no longer intends to pay the costs and will, instead, purchase a new vehicle.

[393] Ms. Blaskavitch purchases a new Jeep vehicle that year and does not pay the outstanding costs. It is not until the latter half of 2021, with the return date for the motion to change approaching, that Ms. Blaskavitch pays more than $20,000 towards costs awards which had, by then, been made against her.

[394] I turn next to Ms. Blaskavitch’s persisting disregard for court orders, specifically as they relate to the parenting schedule. For example, in the spring of 2020, the parties are before Trousdale J. on their respective motions. At the time, Ms. Blaskavitch seeks to have Nathan remain in her care during the COVID-19 state of emergency. Justice Trousdale expresses concern about Ms. Blaskavitch overholding Nathan: “Further, the child went to visit his mother for a one week visit at March Break and has now not seen his father for over three weeks which is also very detrimental to the well-being of the child.”[^146]

[395] As a result of events that transpired in March 2020, Trousdale J. temporarily suspends Ms. Blaskavitch’s parenting time with Nathan.[^147] Ms. Blaskavitch persists in overholding Nathan, and disregarding court orders, even after the expression of concern by Trousdale J. for Nathan’s well-being and the suspension of Ms. Blaskavitch’s parenting time with Nathan.

[396] In the spring of 2021, Ms. Blaskavitch informs Mr. Smith that she had made the unilateral decision to commence a week-about parenting schedule for Nathan. Ms. Blaskavitch informs Nathan’s school that such a change will be made. Ms. Blaskavitch does not carry out her threat at that time. She chooses instead to commence the motion to change now before the court.

[397] When before Doyle J. for a case conference in the spring of 2021, Ms. Blaskavitch “agreed that pending her motion to change, she will comply with the Final Court order” (i.e., including the parenting schedule set out in the James order). Despite providing that confirmation to the court, Ms. Blaskavitch continues to fail to follow the prescribed parenting schedule.

[398] In August 2021, Williams J. hears Ms. Blaskavitch’s motion for increased parenting time with Nathan and Mr. Smith’s motion for an order finding Ms. Blaskavitch to be in contempt of court orders (by reason of overholding Nathan). In her reasons, Williams J. expresses her understanding of Ms. Blaskavitch’s desire to have more time with Nathan than permitted by the James order.

[399] Justice Williams cautions Ms. Blaskavitch, however, that she “must understand that court orders must be followed, whether the order makes the parent happy or not. This is how our court system works. There are consequences for failing to comply with court orders.”[^148] In her reasons, Williams J. also cautions Ms. Blaskavitch that having been found to have breached court orders, the clock may be ticking in terms of a potential finding of contempt (described by Williams J. as a “remedy of last resort”).[^149] Williams J. emphasizes that the findings made were “serious” and “They are findings that could ultimately have serious consequences for her”.[^150]

[400] Justice Williams’ reasons were released a matter of months before the date on which the motion to change was scheduled to be heard. Despite the significant warning given to Ms. Blaskavitch about her litigation conduct and the consequences of breaching court orders, Ms. Blaskavitch’s conduct did not improve even after the hearing of the motion to change began.

[401] I make the following observations about Ms. Blaskavitch’s conduct during the hearing of the motion to change. Ms. Blaskavitch was doggedly persistent in attempting to relitigate and introduce evidence with respect to historical matters which are not relevant to the motion to change. She had to be reminded repeatedly that the focus of the motion to change is events which had transpired since 2018, when the parties were before MacEachern J., and since 2019, when the parties were before James J.

[402] Another salient example of Ms. Blaskavitch’s conduct during the motion to change is her email communication with Mr. Smith’s lawyer in April 2021. Despite being in the middle of the hearing and knowing that one of the factual issues before the court is her communication style, Ms. Blaskavitch chose to engage in threatening and inappropriate communication with Mr. Smith’s lawyer.

[403] At para. 34 of his September 2019 reasons, James J. observed that “considering the issues involved, [Ms. Blaskavitch and Mr. Smith], had consumed a disproportionate share of court time and judicial resources.” Picking up on that point, the interests of the public in the administration of justice are also a factor to be considered when determining whether to declare an individual to be a vexatious litigant.

[404] The court time and judicial resources taken up by vexatious proceedings have an impact on the access other members of the public have to justice. That factor was addressed in paragraphs 65, 67, and 68 of the 2012 decision in Attorney General of Canada v. Mennes:[^151]

Succinctly put, a vexatious litigant order also serves the public interest in access to justice. As Power J. noted in Roscoe v. Roscoe [citation omitted]:

This court has limited resources and must, therefore, attempt to deal with the work before it in a fashion that is fair to all users of the court. While a person’s access to justice is a fundamental right, the court must be diligent to ensure that its processes are not abused by any particular litigant to the detriment, not only to those directly involved in the litigation, but, as well, to the system at large.

There are, however, a small class of litigants who effectively remove themselves from the court process and require leave to participate because of their own behaviour. That class of litigant is small in the extreme. That class of litigant must now include Mr. Mennes.

In coming to the conclusion with an objective eye that Mr. Mennes fits within that class of litigant, and has persistently and without reasonable grounds instituted meritless and repetitive proceedings, I have considered the context of his pattern of conduct as a whole.[^152]

[405] Ms. Blaskavitch has received numerous warnings about the consequences of improper litigation behaviour and the failure to follow court orders. She has historically assured the court that she will follow the terms of the effective final order, only to breach the terms of the relevant order within a matter of weeks of giving that assurance.

[406] I find that Ms. Blaskavitch fits within the class of litigants who “effectively remove themselves from the court process and require leave to participate because of their own behaviour”.[^153] Ms. Blaskavitch’s litigation conduct and conduct outside the courtroom are such that a vexatious litigant order is warranted in the circumstances.

[407] The past several years for Nathan have been tumultuous and filled with uncertainty. It is important that he have a stable home environment – meaning that he knows where and when he will be spending time with his mother and father. It is equally as important that Nathan not be exposed to or at the centre of continuing adult conflict. These goals will not be achieved if Ms. Blaskavitch is permitted to litigate with impunity.

[408] The order made in the concluding section of these reasons includes a declaration that Ms. Blaskavitch is a vexatious litigant and substantive relief intended to address her status as such.

Issue No. 7 – Other Relief

[409] For oral submissions and the decision under reserve, I asked the parties to provide the court with a draft order setting out the relief they are requesting. Issues numbered 1 through 6, listed in the introductory section of these reasons, are based on the relief set out in Ms. Blaskavitch’s motion to change and Mr. Smith’s response to motion to change.

[410] In her draft order, Ms. Blaskavitch includes 45 paragraphs (lettered paragraphs “a” through “ss”). Paragraphs “qq” to “ss” deal with costs of the motion to change. In total, there are 42 paragraphs in Ms. Blaskavitch’s draft order which purport to deal with substantive issues.

[411] I note the following regarding the terms of the draft order provided by Ms. Blaskavitch:

• Some paragraphs relate to the six primary issues – others do not;

• Several paragraphs do not address matters that are enforceable – the contents of the paragraphs are narrative rather than mandatory in nature;

• The paragraphs address issues that were not raised in Ms. Blaskavitch’s motion to change; and

• The contents of the 42 ‘substantive’ paragraphs are, at times, repetitive. For example, more than one paragraph addresses Nathan’s primary residence, providing that it will be with Ms. Blaskavitch.

[412] Paragraphs “t” through “x” deal with the parenting schedule on holidays. Neither party identified in their respective materials that they were seeking to change the holiday parenting schedule – other than Mr. Smith’s request related to the summer holiday period. I have addressed the holiday parenting schedule to the extent required based on the issues raised on this motion.

[413] I am satisfied that the subject matters addressed in Ms. Blaskavitch’s draft order have been covered in Issue Nos. 1-6 and in the “Other Matters” section of the order made below. I do not intend to go through each of the 42 substantive paragraphs, paragraph by paragraph.

[414] There is, however, one element of the draft order that stands as a unique item – paragraph “ee” in which Ms. Blaskavitch requests that an order be made for Mr. Smith to be “psychometrically tested with results provided to the Superior Court of Canada within 7 days after receiving the results.” There is no evidence to support an order requiring Mr. Smith to undergo any form of testing.

Disposition

[415] For the reasons set out above, I make the following order:

Pursuant to the Divorce Act, R.S.C. 1985, c. 3

Decision-Making Authority

1. Paragraph 1 of the final order of Justice MacEachern, dated August 1, 2019, shall be deleted and replaced with the following:

1. Christopher Smith (“Mr. Smith”) shall have sole decision-making authority on all issues for the child of the relationship, Nathan Ryan Blaskavitch-Smith, born on May 3, 2015 (“the Child”).

2. Mr. Smith shall be entitled, without the written authorization or consent of Christina Faith Blaskavitch (“Ms. Blaskavitch”), to obtain any travel documents for the Child including, but not limited to, a passport, passport renewals, and travel visas.

3. Ms. Blaskavitch shall, within seven days of the date of service on her of a copy of this order, deliver the Child’s passport to Mr. Smith and Mr. Smith shall retain the passport within his possession.

4. Mr. Smith shall retain the Child’s Ontario Health Card in his possession.

5. The Child shall be registered to attend school within the school board district in which Petawawa, Ontario is situated.

6. The Child shall attend daycare within the district in which Petawawa, Ontario is situated.

2. Paragraph 4 of the final order of Justice Robertson, dated April 28, 2017, shall be deleted and replaced with the following:

7. If Ms. Blaskavitch plans to travel with the Child outside Canada during her scheduled parenting time, including any of the holiday or March Break periods, then,

a) Ms. Blaskavitch shall, no later than 60 days prior to the planned date of departure from Canada, provide Mr. Smith with a Travel Consent Form for Mr. Smith to execute and have notarized, as evidence of Mr. Smith’s consent to the Child’s travel outside Canada;

b) Mr. Smith shall, if he consents to the travel outside Canada, and no later than seven days following receipt from Ms. Blaskavitch of the Travel Consent Form, provide the executed and notarized form to Ms. Blaskavitch;

c) Mr. Smith shall, no later than two days prior to the planned date of departure, provide Ms. Blaskavitch with the Child’s passport; and

d) Ms. Blaskavitch shall, at the first exchange following her return, with the Child, from travel outside Canada, provide the Child’s passport to Mr. Smith.

8. If Mr. Smith plans to travel with the Child outside Canada, he shall, no later than 14 days prior to the planned date of departure, inform Ms. Blaskavitch of (a) the date of departure, (b) the return date, and (c) the country to which Mr. Smith and the Child are travelling. Ms. Blaskavitch’s consent to Mr. Smith’s travel outside Canada with the Child shall not be required.

3. Paragraph 5 of the final order of Justice Robertson dated April 28, 2017 shall be deleted.

Parenting Time

4. Paragraphs 1 and 2 of the final order of Justice James, dated September 30, 2019, shall be deleted and replaced with the following:

9. The regular parenting time for the Child shall be as follows:

a) The Child shall reside primarily with Mr. Smith in Petawawa, Ontario; and

b) Ms. Blaskavitch shall have weekend parenting time every other weekend. Ms. Blaskavitch’s first parenting weekend shall,

i) commence on the second Friday and continue to the second Sunday following the date on which a copy of the Reasons for Judgment pursuant to which this order is made are released to the parties (i.e., on the weekend after Easter Weekend); and

ii) occur in accordance with the particulars for time of day and location for exchanges which follow below.

10. The exchanges, including all holiday exchanges, shall occur at the Tim Horton’s located on Petawawa Blvd. in Petawawa, Ontario, at 4:30 p.m. or such other time of day as the parties may agree on,

a) Friday (or such other day as may be provided herein, or in the applicable final order, with respect to a holiday long weekend), with Nathan transitioning from Mr. Smith’s care to Ms. Blaskavitch’s care; and

b) on Sunday (or such other day as may be provided herein, or in the applicable final order, with respect to a holiday long weekend), with Nathan transitioning from Ms. Blaskavitch’s care to Mr. Smith’s care.

11. During all exchanges, the parties shall remain in their respective vehicles save and except that Mr. Smith shall be entitled to walk with Nathan between the parties’ respective vehicles if he deems it necessary to do so for Nathan’s safety.

5. Paragraph 12 of the final order of Justice Robertson dated, April 28, 2017, shall be deleted and replaced with the following:

12. If Ms. Blaskavitch is unable to care for Nathan for a period exceeding 24 hours during her parenting time, then Nathan shall either remain in or be returned to Mr. Smith’s care (i.e., depending on when, during Ms. Blaskavitch’s parenting time the period in excess of 24 hours occurs).

6. Paragraph 1.2.2 of Schedule ‘A’ (The Holiday Access Schedule) to the final order of Justice Robertson, dated April 28, 2017 shall deleted and replaced with the following:

13. The Child shall reside with Ms. Blaskavitch on Easter Weekend in odd-numbered years, save and except for Easter Weekend in 2023 on which weekend the Child shall reside with Mr. Smith, and with Mr. Smith in even-numbered years. The Child shall leave his daycare on the Thursday immediately preceding Easter Weekend to be with the party with whom he is spending Easter Weekend. In odd-numbered years, other than 2023, when the Child is residing with Ms. Blaskavitch on Easter Weekend, he shall return to Mr. Smith’s residence at 9:00 a.m. on the morning of Easter Monday.

7. Paragraph 13 of the final order of Justice MacEachern, dated August 1, 2019, shall be deleted and replaced with the following:

14. The summer parenting schedule for the Child shall be as follows:

a) The Child shall have one seven-day holiday period with Ms. Blaskavitch in the month of July and a second seven-day holiday period with Ms. Blaskavitch in the month of August;

b) The Child’s holiday weeks with Ms. Blaskavitch shall commence on the Friday afternoon of one of Ms. Blaskavitch’s parenting weekends and continue until the following Friday afternoon at 4:30 p.m. or such other time of day to which the parties may agree;

c) Ms. Blaskavitch shall, no later than the 1st of May in each calendar year, give Mr. Smith notice in writing of each of the two seven-day holiday periods she prefers. The two seven-day holiday periods shall not be consecutive;

d) If Ms. Blaskavitch does not provide Mr. Smith with notice in writing in accordance with paragraph (c), immediately above, Mr. Smith shall select the two seven-day holiday periods during which the Child shall spend time with Ms. Blaskavitch during the months of July and August.

8. Paragraph 3 of the final order of Justice MacEachern, dated August 1, 2019, shall be deleted and replaced with the following:

15. The parties shall share equally the Christmas Holiday period as follows:

a) In odd-numbered years, the Child shall reside,

i) with Mr. Smith from noon on December 24 until noon on December 25;

ii) with Ms. Blaskavitch from noon on December 25 to noon on December 26;

iii) with Mr. Smith from noon on December 26 to noon on December 28; and

b) In even-numbered years, the Child shall reside,

i) with Ms. Blaskavitch from noon on December 24 until noon on December 25;

ii) with Mr. Smith from noon on December 25 to noon on December 26;

iii) with Ms. Blaskavitch from noon on December 26 to noon on December 28.[^154]

16. The parties shall alternate the March Break period on a yearly basis as follows:

a) In odd-numbered years, the Child shall reside with Ms. Blaskavitch from 4:30 p.m. on the Friday preceding the March Break until 4:30 p.m. on the Saturday prior to school resuming; [^155]

b) In even-numbered years, the Child shall reside with Mr. Smith from after school on the Friday preceding the March Break until the Child resumes school on the Monday morning following the March Break;

c) The party who did not have the Child during the March Break (i.e., Mr. Smith in odd-numbered years and Ms. Blaskavitch in even-numbered years) shall have their regular parenting weekend with the Child the weekend following the Child’s return to school and the regular alternating weekend schedule shall resume.

17. All exchanges required to facilitate the schedule set out in paragraph 15, above, shall occur at the Tim Horton’s on Petawawa Blvd., in Petawawa.

Child Support

9. Paragraph 16 of the final order of Justice James dated September 30, 2019 shall be deleted and replaced with the following:

18. Child support shall be paid as follows:

a) There shall be a retroactive child support adjustment for child support from June 1, 2020 to May 31, 2021 and, for that period, Ms. Blaskavitch shall pay $635 per month based on Line 150 income of $68,052 for the 2019 taxation year;

b) There shall be a retroactive child support adjustment for child support from June 1, 2021 to May 31, 2022 and, for that period, Ms. Blaskavitch shall pay $597 per month based on Line 150 income of $64,228 for the 2020 taxation year;

c) There shall be a retroactive child support adjustment for child support from June 1, 2022 to May 31, 2023 and, for that period, Ms. Blaskavitch shall pay $774 per month based on Line 150 income of $83,000 for the 2021 taxation year (as found in the Reasons for Judgment dated April 5, 2023);

d) Effective June 1, 2023, child support shall be based on the higher of,

i) Ms. Blaskavitch’s Line 150 income in the Notice of Assessment for 2022; and

ii) $73,748 (being $70,236, indexed for inflation by 5 per cent from 2021 to 2022);

e) In each subsequent year during which child support is payable, child support shall be adjusted effective the 1st of June based on the higher of,

i) Ms. Blaskavitch’s Line 150 income as set out in the Notice of Assessment for the calendar year prior to the year in which the adjustment is effective; and

ii) $70,236 indexed for inflation from 2021 to the year prior to the year in which the adjustment is effective;

f) The indexation rate, and the minimum income, as indexed for inflation, shall be determined relying on the online inflation calculator from the Bank of Canada; and

g) Indexation for inflation in any given year shall be restricted to a maximum of five (5) per cent.

Section 7 Expenses

10. Paragraph 20 of the Robertson order shall be deleted and replaced with the following:

19. The parties shall share the Child’s special and extraordinary expenses as defined in Section 7 of the Child Support Guidelines in the following proportions: (a) Mr. Smith shall pay 55 per cent of such expenses; and (b) Ms. Blaskavitch shall pay 45 per cent of such expenses.

20. The parties shall share the Child’s expenses for hot lunches at school on a month-to-month rotation, based on the rotation in effect as of the date of this order. The party who is not paying for the Child’s hot lunches for the month of April 2023 shall pay for the Child’s hot lunches for the month of May 2023 and the parties shall continue to alternate in that manner.

11. Paragraph 21 of the Robertson order shall be varied to read as follows:

21. The cost of the child’s regular daily daycare shall be split evenly between the parties:

a) Effective May 1, 2023, and on the 1st day of each month thereafter until such time as the Child no longer attends regular daycare, Ms. Blaskavitch shall pay to Mr. Smith a minimum of $250 per month towards the expenses for regular daily daycare; and

b) The parties shall, when reviewing child support each year, account for the total regular daycare expenses incurred from June 1 of the prior year to May 31 of the year in which the review of child support is being conducted. The parties shall, if necessary make an adjustment for any overpayment or underpayment by Ms. Blaskavitch towards regular daycare expenses in the preceding twelve-month period. The adjustment shall be applied to child support payable effective June 1 of the year in which the review is being conducted.

c) Mr. Smith shall be entitled to enforce this paragraph through the Family Responsibility Office.

Pursuant to s. 35(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12

Restraining Order

22. Ms. Blaskavitch shall be restrained from attending within 200 metres of Ms. Smith’s residence, place of employment, or any other place that Mr. Smith is known to frequent, except for exchanges of the Child pursuant to the parenting schedule and during which time Ms. Blaskavitch shall remain in her vehicle.

23. While the Child is under the age of 18 years, Ms. Blaskavitch shall be restrained from attending within 200 metres of the Child’s residence, daycare, school, place of employment or any other place that the Child is known to frequent except,

a) for any parenting time provided for by the parenting schedule in this order; and

b) with Mr. Smith’s written and revocable consent, which consent shall be filed with the Upper Ottawa Valley detachment of the Ontario Provincial Police located at 1913 Petawawa Blvd., Pembroke, Ontario, K8A 7H5.

24. When Nathan is 18 years or older, Ms. Blaskavitch shall be restrained from attending within 200 metres of the Child’s residence, daycare, school, place of employment or any other place that the Child is known to frequent except for any contact with Ms. Blaskavitch to which the Child consents or as may be provided by a further order of the court.

25. Ms. Blaskavitch shall be restrained from communicating with Mr. Smith except in the following circumstances and by the following methods of communication:

a) by email to christopherdonald2006@gmail.com and for the sole purpose of providing Ms. Blaskavitch’s preferred summer parenting dates each year;

b) by WhatsApp and for the sole purpose of facilitating video calls between Ms. Blaskavitch and the Child or between Mr. Smith and the Child, the latter during Ms. Blaskavitch’s parenting time with the Child;

c) by writing in a communication book that is to travel between the respective parties’ homes with the Child and with the content of the communication in the book restricted to communication about the Child’s schedule, activities, and health; and

d) for emergency situations during which communication may be made by text, WhatsApp or telephone.

26. Ms. Blaskavitch shall be restrained from posting on any public social media account, private social media account, or online forum any content about Mr. Smith or about any other individual involved in the Child’s care including, but not limited to, Mr. Smith’s partner, Holly Strong, Mr. Smith’s counsel, and the Child’s daycare or childcare providers.

27. Ms. Blaskavitch shall be restrained from posting on any public social media account, private social media account, or online forum any documents related to this family law proceeding including, but not limited to, copies of court documents, lawyer correspondence, emails between the parties, and text messages between the parties.

Pursuant to s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“the CJA”)

Vexatious Litigant

28. This court declares that Ms. Blaskavitch:

a) has consistently and without reasonable grounds instituted vexatious court proceedings and has conducted court proceedings in a vexatious manner within the meaning of ss. 140(1)(a) and (b) of the CJA; and

b) is a vexatious litigant pursuant to s. 140 of the CJA.

29. Ms. Blaskavitch shall be prohibited from, either directly or indirectly, instituting any proceeding or continuing any proceedings previously instituted in any court, except and until such time as she has obtained leave by a judge of the Superior Court of Justice pursuant to s. 140(3) of the CJA as provided for in this order.

30. All existent proceedings, actions, appeals and applications brought by Ms. Blaskavitch shall be and are immediately stayed except and until such time as she has obtained leave pursuant to s. 140(3) of the CJA as provided for in this order.

31. Should Ms. Blaskavitch file material seeking to commence or continue a proceeding or any appeal in any court in Ontario without first filing an entered order permitting her to do so, the proceeding shall be immediately stayed upon any person filing a copy of this order in such a court.

32. Ms. Blaskavitch shall deliver a copy of this order, and of the Reasons for Judgment herein dated April 5, 2023, to any person or body with whom she initiates or continues any complaint, including, without limitation, any court, administrative body and/or tribunal, regulatory body, the police and the Crown.

Pursuant to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and the Family Law Rules, O. Reg. 114/99.

Other Matters

33. The parties shall co-operate, restrict their communication with one another to matters related to the Child, and such communication shall be civil in tone and content and respectful of the other party and the other party’s representative.

34. The requirement for Ms. Blaskavitch to approve, as to form and content, this or any other draft order herein is dispensed with.

[416] With the substantive relief determined, the final topic to be covered is costs.

Costs

[417] In the event the parties are unable to resolve the issue of costs of this proceeding, then they shall deliver their respective written submissions as set out below:

a) Their respective primary submissions shall be limited to a maximum of eight pages (excluding the bill of costs);

b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”);

c) Any case law or other authorities relied on shall be hyperlinked and shall comply with Rule 4 of the Rules with respect to font size;

d) Submissions shall be delivered by 5:00 p.m. on the twentieth business day following the date on which these reasons are released;

e) In the event any party wishes to deliver a reply to the costs submissions of the opposing party, the reply submissions shall be delivered by 5:00 p.m. on the thirtieth business day following the date on which these reasons are released. Reply submissions shall be no more than four pages and shall comply with paragraphs (b) and (c) above;

f) All submissions, whether primary or responding, shall be filed electronically in the usual manner through the Pembroke Courthouse administration

[418] If no submissions are delivered pursuant to subparagraph (d) above, there will be no further order with respect to costs.

Madam Justice Sylvia Corthorn

Released: April 5, 2023

COURT FILE NO.: FC-16-FS143-4

DATE: 2023/04/05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

CHRISTINA FAITH BLASKAVITCH

Applicant

– and –

CHRISTOPHER DONALD SMITH

Respondent

REASONS FOR DECISION

Madam Justice Sylvia Corthorn

Released: April 5, 2023

[^1]: 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.

[^2]: Ibid, at para. 9.

[^4]: Ibid, at para. 13.

[^5]: Ibid, at para. 17.

[^6]: Ibid, at para. 17.

[^7]: Ibid, at para. 17.

[^8]: Ibid, at para. 18.

[^9]: Blaskavitch v. Smith (1 August, 2019), Pembroke, 16D-143 (Ont. S.C.) (“MacEachern Reasons”), at para. 39.

[^10]: MacEachern order, paras. 2 and 3.

[^11]: MacEachern order, at para. 2.

[^12]: MacEachern Reasons, para. 39.

[^13]: MacEachern Reasons, paras. 28, 39.

[^14]: MacEachern Reasons, para. 28.

[^15]: MacEachern Reasons, para. 29.

[^16]: MacEachern Reasons, para. 40.

[^17]: Blaskavitch v. Smith (7 April, 2020), Pembroke, 16D-143 (Ont. S.C.) (“Trousdale Endorsement”), at para. 25, item 2.

[^18]: Exhibit 22.

[^19]: Exhibit 24.

[^20]: Exhibit 7.

[^21]: Exhibit 7.

[^22]: Exhibit 7.

[^23]: See Exhibit 23 – Sept. 7, 2020 email to Mr. Smith in which Ms. Blaskavitch expresses that belief.

[^24]: R.S.C., 1985, c. N-5.

[^25]: Exhibit 34.

[^26]: Exhibit 34.

[^27]: Exhibit 33.

[^28]: Exhibit 24.

[^29]: Exhibit 24.

[^30]: Exhibit 24.

[^31]: Exhibit 31.

[^32]: Exhibit 32.

[^33]: Exhibit 30.

[^34]: Exhibit 7. Ms. Blaskavitch was also facing two charges under s. 145(3) of “Fail to Attend”, both with an offence date of April 23, 2021.

[^35]: Exhibit 54 – May 5, 2021 Smith Affidavit, at para. 11.

[^36]: Oral testimony of Ms. Blaskavitch on February 4, 2022.

[^37]: Blaskavitch v. Smith (13 August, 2021), Pembroke, 16D-143 (Ont. S.C.) (“Williams Endorsement”), at para. 16.

[^38]: Williams Endorsement, at para. 26.

[^39]: 2021 ONCA 462, 57 R.F.L. (8th) 293, at paras. 1-3.

[^40]: Williams Endorsement, at para. 26.

[^41]: Exhibit 74.

[^42]: Exhibit 35.

[^43]: Exhibit 57, para. 109.

[^44]: Exhibit 57, para. 108.

[^45]: Exhibit 57, para. 108.

[^46]: Blaskavitch v. Smith (3 November, 2021), Pembroke, 16D-143 (Ont. S.C.) (“Kershman Endorsement”).

[^47]: Exhibit 21.

[^48]: Exhibit 21.

[^49]: Exhibit 21.

[^50]: Exhibit 21.

[^51]: Oral testimony of Ms. Blaskavitch, on February 2, 2022.

[^52]: Exhibit 46, with emphasis and upper-case lettering in the original.

[^53]: Exhibit 46, with upper-case lettering as in the original.

[^54]: Divorce Act, s. 7(2).

[^55]: Divorce Act, s. 16(2).

[^56]: Hill v. Hill (1987), 1987 CanLII 8348 (ON SC), 10 R.F.L. (3d) 225 (Ont. Dist. Ct.), at paras. 11, 28.

[^57]: Menchella v. Menchella, 2012 ONSC 6304, at para. 24.

[^58]: Blaskavitch v. Smith (30 September 2019), Pembroke, 16D-143 (Ont. S.C.) (“James Reasons”).

[^59]: James Reasons, at para. 32.

[^60]: James Reasons, at para. 32.

[^61]: MacEachern order, at paras. 15, 17.

[^62]: MacEachern order, at para. 16.

[^63]: MacEachern order, at paras. 17, 18.

[^64]: MacEachern order, at para. 19.

[^65]: MacEachern order, at para. 9.

[^66]: James order, at paras. 16 and 17, respectively.

[^67]: James order, at para. 17.

[^68]: Robertson order, at para. 18 and MacEachern order, at para. 19.

[^69]: Exhibit 19 – Ms. Blaskavitch’s November 12, 2021 Form 13 Financial Statement (including attachments).

[^70]: Exhibit 3 and Ms. Blaskavitch’s oral testimony on February 4, 2022.

[^71]: $5,117 = $2,931 + $2,186.

[^72]: R.S.C. 1985, c. 3.

[^73]: SOR/97-175, as am.

[^74]: 2018 ONSC 1384, 5 R.F.L. (8th) 136.

[^75]: O. Reg. 391/97 as am.

[^76]: R.S.C., 1985, c. C-8.

[^77]: The full name of the statute is the Canadian Forces Members and Veterans Re-establishment and Compensation Act, S.C. 2005, c. 21.

[^78]: Hewitt, at paras. 88-97.

[^79]: Hewitt, at para. 107.

[^80]: Hewitt, at para. 108.

[^81]: Hewitt, at para. 108.

[^82]: Hewitt, at para. 109.

[^83]: Hewitt, at para. 109.

[^84]: Hewitt, at paras. 111-112.

[^85]: Hewitt, at para. 113.

[^86]: Hewitt, at paras. 105-106, 121.

[^87]: Hewitt, at para. 121.

[^88]: 2015 ONSC 4819.

[^89]: Phelps, at para. 9.

[^90]: Phelps, at para. 11.

[^91]: Hewitt, at para. 48 citing Phelps v. Childs, 2017 ONSC 1443.

[^92]: 2017 ONCA 247, 136 O.R. (3d) 641.

[^93]: Hewitt, at paras. 108-109.

[^94]: Exhibit 19.

[^95]: Exhibit 14.

[^96]: Exhibit 14.

[^97]: The reference to sexual assault is to allegations made by Ms. Blaskavitch arising from the manner in which she was treated by the Military Police when they attended at her military housing in Ottawa in March 2020.

[^98]: Exhibit 19, with upper-case letters in original.

[^99]: See Exhibit 40 – Ms. Blaskavitch’s April 19, 2022, Form 13 Financial Statement.

[^100]: Colour of font, upper-case letters, and underlining in original.

[^101]: Colour of font, upper-case letters, and highlighting in original.

[^102]: As discussed elsewhere in these reasons, the $529.01 is, in fact, a monthly (not yearly) benefit.

[^103]: Colour of font and upper-case letters in original.

[^104]: $336 = ($625 - $597) x 12.

[^105]: $5,214.72 = ($336 x 2) + ($336 x 13.52). The two years are for the period from June 1, 2021 to May 30, 2023. The 13.52 multiplier is the present value factor to account for the years from June 1, 2023 to May 30, 2037.

[^106]: See R. v. Find, 2001 SCC 32, 2001 S.C.C. 32 for a discussion of the types of matters of which a court may take judicial notice.

[^107]: $2,931 - $2,186 = $745

[^108]: Exhibit 38.

[^109]: Exhibit 39.

[^110]: Exhibit 3 – July 2021 Pay Statement.

[^111]: Exhibit 57 – November 19, 2021 Smith Affidavit, at para. 135.

[^112]: Exhibit 34.

[^113]: Exhibit 34, item 2.

[^114]: Exhibit 7, item 7.

[^115]: Exhibit 34.

[^116]: Blaskavitch v. Smith (3 November 2021), Pembroke, 16D-143 (Ont. S.C.) (Kershman Endorsement), at para. 6, item 2.

[^117]: Kershman Endorsement, at para. 7.

[^118]: $68,810.28 = 12 x ($5,205.18 + $529.01).

[^119]: Robertson order, at para. 17.

[^120]: MacEachern order, at para. 18.

[^121]: James order, at para. 6.

[^122]: Exhibit 19.

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