Court File and Parties

COURT FILE NO.: FC950/21 DATE: May 1, 2023 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Lisa Eve Otto, Applicant AND: Stephen Timothy Otto, Respondent

COUNSEL: B. Ludmer, for the Applicant B. Barr, for the Respondent D. Daley, Children’s Lawyer

BEFORE: SAH J. HEARD: March 29, 2023

Endorsement

Overview

[1] There are two motions before the court, one brought by each party. The parties’ 14-year-old son and 12-year-old daughter, C. and G., respectively, are at the center of each motion.

[2] On March 16, 2022, the parties agreed to various terms which led to a consent order (the “March 2022 order”). The nine-page March 2022 order of Gorman J. addresses several issues, including but not limited to parenting time, holiday time, table and section 7 child support, RESPs, spousal support, payment of expenses, the family cats, the sale of the family home and cottage, and the distribution of proceeds of sale.

[3] The respondent father seeks to vary that order. The applicant mother seeks compliance with same relating to parenting time for C. and various non-compliance remedies. Both parties seek a variation relating to support, including the imputation of income, and both seek various additional terms further detailed below.

Background

[4] The parties separated after almost 14 years of marriage. They have two children, C., age 14, and G., age 12. An application was commenced in September 2021 and their matter is on November 2023 trial sittings.

[5] Following their separation, the parties could not agree on whether the involvement of the Office of the Children's Lawyer (the “OCL”) would be beneficial. After the respondent father indicated that he would bring a motion to seek their involvement, the applicant mother consented in February 2022.

[6] In March 2022, motions were brought regarding parenting time. The parties settled, on an interim without prejudice basis, pending the involvement of the OCL, such that the children would reside with each of them 50% of the time, on a week about basis. They consented to this arrangement despite a current disagreement about the extent of their caregiving roles during the marriage.

[7] In May 2022, the OCL disclosure meeting was held. The expressed views and preferences of the children where that they wished to live primarily with the respondent father. On the day of the disclosure meeting, C. erroneously received text messages from his maternal grandmother about the litigation expressing criticism of the respondent father's parenting. The text message was intended for a different recipient. From that day forward, C. has resided primarily with the respondent father and has not seen his mother.

[8] The relevant portions of the March 2022 order are as follows:

1. Commencing February 28, 2022, on an interim and without prejudice basis pending the involvement of the Office of the Children's Lawyer and a further court order or agreement, the children, namely [C.], born [2008], and [G.], born [2010], shall reside with the Respondent, Stephen Timothy Otto and the Applicant, Lisa Eve Otto, on a week about basis with the exchange taking place on Monday morning return to school/bus stop or 9:00 a.m..

2. The parties shall share special occasion and holiday time with the children as follows. This holiday schedule is in addition to the regular schedule above and overrides the regular schedule in the event of conflict.

Easter Weekend

a. In even numbered years, the children shall be in the care of the Applicant, Lisa Eve Otto, from Thursday after school until Sunday at 12:00 pm (noon) and in the care of the Respondent, Stephen Timothy Otto, from Sunday at 12:00 p.m. (noon) until Monday morning return to school.

b. In odd numbered years, the children shall be in the care of the Respondent, Stephen Timothy Otto, from Thursday after school until Sunday at 12:00 pm (noon) and in the care of the Applicant, Lisa Eve Otto, from Sunday at 12:00 p.m. (noon) until Monday morning return to school.

Mother’s Day and Father’s Day

a. If not otherwise in her care, the children shall be in the Applicant, Lisa Eve Otto’s care on Mother’s Day from 9:00 am until Monday morning return to school.

b. If not otherwise in his care, the children shall be in the Respondent, Stephen Timothy Otto’s care on Father’s Day from 9:00 am until Monday morning return to school.

Thanksgiving Weekend

a. The children shall be in the care of the parent whose regularly scheduled weekend falls on Thanksgiving Weekend from Friday after school until Monday at 10:00 a.m. and in the care of the other parent from Monday at 10:00 am until Tuesday morning return to school.

Christmas/Christmas School Break

a. In odd numbered years, the children shall be in the care of the Applicant, Lisa Eve Otto, on Christmas Eve, December 24, from 12:00 pm (noon) until Christmas Day, December 25, at 12:00 pm (noon) and shall be in the care of the Respondent, Stephen Timothy Otto, from Christmas Day, December 25, at 12:00 pm (noon) until Boxing Day, December 26, at 12:00 pm.

b. In even numbered years, the children shall be in the care of the Respondent, Stephen Timothy Otto, on Christmas Eve, December 24, from 12:00 pm (noon) until Christmas Day, December 25, at 12:00 pm (noon) and shall be in the care of the Applicant from Christmas Day, December 25, at 12:00 pm (noon) until Boxing Day, December 26, at 12:00 pm.

c. The balance of the Christmas vacation shall be in accordance with the regular schedule.

School Spring/March Break

a. In odd numbered years, the children shall be in the Applicant, Lisa Eve Otto’s care Monday at 9:00 am to Friday after school. The children shall also be in her care for her regularly scheduled weekend, such that the children shall be in her care for 7 consecutive days.

b. In even numbered years, the children shall be in the Respondent, Stephen Timothy Otto’s care Monday at 9:00 am to Friday after school. The children shall also be in his care for his regularly scheduled weekend, such that the children shall be in his care for 7 consecutive days.

c. The Applicant, Lisa Eve Otto, shall have the option to travel with the children in odd numbered years and shall advise the Respondent, Stephen Timothy Otto, by February 1 if she intends to exercise same.

d. The Respondent, Stephen Timothy Otto, shall have the option to travel with the children in even numbered years and shall advise the Applicant, Lisa Eve Otto by February 1 if he intends to exercise same.

e. If required for travel, the travelling parent shall have the option to travel with the children for up to nine days (including both weekends).

Child’s Birthdays

a. The regular schedule shall be followed on the children’s birthdays. The parent with care shall ensure the children have telephone contact with the other parent on a child’s birthday.

4. On an interim and without prejudice basis commencing April 1, 2022, the Applicant, Lisa Eve Otto, shall pay the Respondent, Stephen Timothy Otto, $915.00 a month based on her income for child support purposes of $60,000.00 (imputed income at $25,000 plus a taxable capital gain of $17,500) [sic] and the Respondent, Stephen Timothy Otto, shall pay to the Applicant, Lisa Eve Otto, child support of $2,884.00 per month based on his 2021 income for support purposes of $217,278.00 (income of $182,278 and taxable capital gains of $17,500) [sic] for the support of the children, namely [C.], born [2008], and [G.], born [2010], pursuant to s. 9 of the Child Support Guidelines. This is without prejudice to either party for a retroactive review of child support to date of separation.

5. On an interim without prejudice basis commencing April 1, 2022, the Respondent, Stephen Timothy Otto, shall pay net spousal support to the Applicant, Lisa Eve Otto, in the amount of $1,123.50 per month being the amount (including child support) required to provide the parties with a 50/50 split of net disposable income. This is not deductible from the Respondent’s income or inclusive in the Applicant’s income. This is without prejudice to the Respondent to take a position retroactively that he has overpaid spousal support and to the Applicant to take a position retroactively that the Respondent has underpaid spousal support.

6. The support paid herein is without prejudice to the Respondent, Stephen Timothy Otto, to take a position retroactively that he has overpaid spousal support and to the Applicant, Lisa Eve Otto, to take a position retroactively that the Respondent has underpaid spousal support.

[9] The court was advised that the parties settled the parenting time for G., the applicant mother’s participation in a vocational assessment as sought by the respondent father, and one of the parenting orders requested by the applicant mother.

Issues for Determination

[10] The court is required to determine the following:

1. Is compliance with, or variation of, the March 2022 order in C.’s best interest?
2. What decision-making regime is in G.’s best interest?
3. What additional parenting orders (parenting covenants) are in the children’s best interest?
4. Should the support provisions of the March 2022 order be varied and, if so, how?
5. What, if any, financial disclosure orders are required?

1. Compliance vs Variation Regarding C.

Position of the Parties

Applicant Mother

[11] The applicant mother seeks a finding that the respondent father is in breach of the March 2022 order as it relates to parenting time. She requests that the respondent father strictly comply with the week about and holiday parenting schedule set out in the March 2022 order.

[12] As a remedy to the non-compliance, the applicant mother suggests that make-up time be ordered immediately. As a further remedy, the applicant mother seeks the appointment of a family reconciliation therapist and various therapy orders. Specifically, the applicant mother seeks the involvement of Ms. Paula DeVeto to provide family therapy in support of the relationship between the children, their parents, and extended family, to encourage compliance with interim orders which may be amended from time to time. It is proposed that the cost of reconciliation therapy be split equally between the parties.

Respondent Father

[13] The respondent father seeks an interim without prejudice order that C. reside primarily with the respondent, with parenting time to the applicant mother in accordance with C.’s wishes. This would vary the March 2022 order currently in place.

Legal Framework

[14] The court has the broad authority to make any order that it considers necessary for a just determination of a matter where a party fails to obey an order: see r. 1(8) of the Family Law Rules.

[15] In Ferguson v. Charlton, 2008 ONCJ 1, at para. 64, Spence J. set out a three-step process for approaching the application of motions brought under rr. 1(8) and 14(23). Relative to non-compliance under r. 1(8), the test is as follows:

1. Is there a triggering event that would allow consideration of r. 1(8)?
2. In the circumstances, is it appropriate to exercise discretion in favour of the non-complying party?
3. If not, what is the appropriate remedy?

[16] The onus is on the non-compliant party to show, on a balance of probabilities, why the sub-rule should not apply: Gordon v. Starr, 2007 ON SC 35527, 42 R.F.L. (6th) 366 (S.C.J.).

[17] The legal test to be met to vary a temporary order pending trial was recently summarized in Chyher v. Al Jaboury, 2021 ONSC 4358. In this case, the court summarized the test as follows:

[22] The case law reflects two approaches to the variation of interim orders. See Calabrese v. Calabrese, 2016 ONSC 3077 (Ont. S.C.J.) where the court indicates the strict material change test is not a prerequisite to varying an interim parenting order and says the overriding principle is always the best interests of the child. However, Henderson J. goes on to say in Calabrese that many courts have recognized it is not in the best interests of the child to make interim changes pending a full vetting of the evidence at trial and concludes that changes to temporary orders will be rare. It is the second approach that I adopt. It requires a material change in circumstance that results in a compelling reason to vary the previous interim order. See Radojevic v. Radojevic, 2020 ONSC 5868, 2020 CarswellOnt 14013, 324 A.C.W.S. (3d) 233 where Kurz J. agrees with Justice Mitrow in Miranda v. Miranda, 2013 ONSC 4704 (Ont. S.C.J.), that the threshold is a material change in circumstances that compels a change in the parenting terms in the best interests of the child. Mitrow J. sets out the following summary in Miranda, at para. 26:

26 A party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (Ont. S.C.J.) at para. 14. Variation of interim custody and access orders will usually only succeed if a child is at risk, or for some other compelling reasons. There is a presumption in favour of the status quo absent compelling reason to change the status quo: Gusikoski v. Gusikoski, 2001 CarswellSask 323 (Sask. Q.B.) at para 10. In Green v. Cairns, 2004 CarswellOnt 2322 (Ont. S.C.J.) at para. 14, Wood J. referred to the well-founded reluctance by courts to vary interim orders on an interim basis and stated that an interim order should only be varied on an interim basis where the evidence establishes "clearly and unequivocally" that the present arrangement is not in a child's best interests. In Greve v. Brighton, 2011 ONSC 4996, 2011 CarswellOnt 8814 (Ont. S.C.J.), Ricchetti J., after reviewing various authorities, states at para. 24 that on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the child's best interests.

[18] Section 28 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), allows a court to make a parenting order relating to parenting time and decision-making responsibility.

[19] Section 24(1) of the CLRA provides that the court shall take into consideration only the best interests of a child when making a parenting order.

[20] Section 24(2) provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing.

[21] Section 24(3) sets out a list of factors for the court to address in considering the circumstances of a child when determining best interests.

[22] As stated by the Supreme Court of Canada in Barendregt v. Grebliunas, 2022 SCC 22, at paras. 8 and 9:

[8] Determining the best interests of the child is a heavy responsibility, with profound impacts on children, families and society. In many cases, the answer is difficult—the court must choose between competing and often compelling visions of how to best advance the needs and interests of the child.

[9] The law relating to the best interests of the child has long emphasized the need for individualized and discretionary decision-making. But children also need predictability and certainty. To balance these competing interests, the law provides a framework and factors to structure a judge’s discretion.

Analysis and Conclusion

[23] The applicant mother consents to vary the March 2022 order when it favours her position. She takes no issue with varying the March 2022 order when the result is G. in her primary care.

[24] However, when the responding father proposes that C. remain in his primary care, she alleges non-compliance. I find the applicant mother's position on non-compliance to be self-serving.

[25] There appears to be no dispute that a triggering event has occurred, which allows the court to determine whether it is appropriate to exercise its discretion in favour of the respondent father. The triggering event occurred on May 5, 2022 when, despite the March 2022 court order, C. began residing with the respondent father.

[26] However, I find that the respondent father has established, on a balance of probabilities, that r. 1(8) should not apply. There are two factors that lead the court to the conclusion that there is a credible explanation for non-compliance. First is the nature of the March 2022 order, and second is the contradictory position of the applicant mother.

[27] Paragraph 1 of the March 2022 order specifically states that the week about schedule was made pending the involvement of the Office of the Children’s Lawyer and a further court order or agreement. From this consent term, the court concludes that the parties contemplated that the week about schedule for both children was undecided, incomplete, and subject to change, awaiting the involvement of the Office of the Children’s Lawyer.

[28] The court cannot sanction a party under r. 1(8) for non-compliance with an order which was, on agreement of both parties, incomplete. This is not to say that the court cannot sanction a party for non-compliance of any interim or temporary order. However, the specific reference to the parenting orders being made pending the OCL’s involvement and a further court order or agreement establishes that the arrangement was subject to change for a particular reason, and this, in my view, is a credible explanation for the non-compliance.

[29] Furthermore, the evidence supports that following C.’s change in residency, the parties agreed on an interim without prejudice basis that the interim without prejudice order (the March 2022 order) would not apply to him and that he could live with the respondent father with the understanding or expectation that he would be with the applicant mother every other weekend.

[30] Regrettably, every other weekend visits did not occur, and C. has not seen his mother in almost a year.

[31] Unfortunately, the parties did not have the matter return to court and did not put their agreement in writing. However, there appears to be no dispute that, from May 2022 to approximately September 2022, when the respondent father first brought his motion relating to parenting time, the issue of non-compliance was not raised.

[32] The second factor taken into consideration deals with the applicant mother’s contradictory position.

[33] As indicated above, the parties have consented to an order that G. primarily reside with the applicant mother with specified parenting time with the respondent father.

[34] The court is unable to reconcile the difference in the applicant mother’s position as it relates to the two children.

[35] The applicant mother did not provide any evidence to support this contradiction.

[36] While it is generally accepted that each child is different and the best interest analysis to be conducted should take into account these differences, the applicant mother’s indifference to non-compliance as it relates to G. and request for strict compliance as it relates to C. results in a finding that the court ought to exercise discretion in favour of the respondent father. To find otherwise would go against common sense.

[37] For these reasons, the applicant mother’s request to find the respondent father non-compliant with the parenting provisions of the March 2022 order relating to C. is dismissed.

[38] An order shall issue on the consent terms reached in relation to parenting time for G. and the March 2022 order shall be varied accordingly.

[39] The court is now required to consider if, and how, to vary the March 2022 order as it relates to C. and what parenting order is in his best interests.

[40] The overriding principle in determining whether to vary an interim parenting order is the best interests of the child.

[41] In this case, the court is required to consider the best interest factors without the benefit of all evidence to be provided at the trial scheduled in the fall. The court must determine whether the respondent father has produced cogent and compelling evidence to show the physical, mental and moral welfare of a child would be at risk if the March 2022 order is maintained.

[42] I find that the respondent father has demonstrated a change in circumstances which are compelling to vary the interim order to meet C.’s best interests.

[43] Those circumstances include several incidents involving C. and the applicant, which resulted in a breakdown in trust and, ultimately, communication.

[44] Most of these circumstances are told from C.’s perspective. The OCL described C. as a very mature, intelligent, respectful and responsible 14-year old. The OCL submits his teachers describe him as a natural leader who will be successful in the future. Neither party disputed C.’s maturity and intelligence.

[45] Counsel for the applicant submits that, in the context of his mother, C. is “gilding a lily”. I disagree.

[46] I accept the OCL’s submissions that C.’s views and preferences have been consistent and strongly expressed, that he was very determined to clearly explain his perspective, and why the incidents I will refer to below have upset him.

[47] I place considerable weight to these views and preferences, particularly as it relates to their strength, consistency, and independence.

[48] As noted by the applicant, 48 days passed between the parties entering into a consent order for a week about schedule and C. residing solely with the respondent, with no contact to the applicant.

[49] Some of the incidents occurred within those 48 days, some occurred prior to the parties entering into the consent order, and some occurred following C.’s decision to reside with his father.

[50] Despite counsel for the applicant’s claim that res judicata applies to some of the evidence advanced by the OCL and the respondent, I will consider all of the evidence. No final order was made in this matter. The court is required to consider many factors when determining the best interests of a child. The Supreme Court of Canada has emphasized the need for individualized and discretionary decision-making relating to the best interests of the children. In order to conduct an analysis and give primary consideration to C.’s physical, emotional and psychological safety, security and wellbeing, I will consider all evidence, including evidence that was before the court when the parties entered into their interim agreement.

[51] On the day of the disclosure meeting, C.’s maternal grandmother admits to accidentally sending him a text message, which was intended for the applicant. The text message contained content that no grandmother would want their grandson to see. The grandmother opined that the respondent was twisting the children’s minds. C. found this to be disrespectful. The text message also discussed the litigation between the parties.

[52] The maternal grandmother deposed that she made an honest mistake and that she is incredibly sorry for the mistake. I have no doubt her remorse is genuine.

[53] It is unclear as to whether it was the OCL disclosure meeting or the text message that resulted in C.’s desire to reside with the respondent from that day forward. However, I find the text message received contributed to the child’s views and preferences and supports a finding that this incident contributed to the breakdown in trust between C. and his mother.

[54] C. does not wish to see his maternal grandparents. He admits to being close with them before but indicated that once the text was sent, it “finished” their relationship. This incident is unmistakeable evidence of a compelling reason why C. does not wish to maintain contact with the maternal side of his family.

[55] This breakdown in trust was further compounded by C.’s maternal cousins not speaking with him at the request of his maternal aunt. According to C., his maternal aunt asked her children to block him on social media He does have contact with one cousin who attends the same high school.

[56] In response, the applicant does not offer an explanation but deflects and focuses on C.’s relationship with his half-brothers on his father’s side and seeks to criticize the father for the way he maintains, or fails to maintain, relationships.

[57] C. also describes an incident that occurred when the parents were on the week about schedule. On a week when the children were to be with their mother, the father picked them up from school, indicating that their mother had travelled to Florida.

[58] According to C., the children did not know that she had left for a vacation, and G. was texting and calling their mother with no response. C.’s evidence as expressed through the OCL was supported by G.’s evidence. When they were able to reach their mother, according to C., she was sunbathing.

[59] While the mother claims that she has only visited Florida on the days that she did not have parenting time with the children, she does not offer any reasonable explanation as to why the children would have stated they did know that she was away, or why G. claims to have attempted to contact her with no response. Instead, the applicant states that C.’s assertions are verifiably false. This incident further led to the breakdown in trust between C. and the applicant.

[60] On another occasion, C. described an incident where, while their mother was out running errands, his sister found her journal that “said bad things” about the respondent. C. perceived this as the applicant’s attempts for the children to fear the respondent.

[61] The applicant deposes that she did not leave the journal out to be found by the children, but she does not dispute that it was in a location within the children’s reach and view and does not acknowledge any role that she potentially played in the consequence of them finding the journal.

[62] After C. began living primarily with the respondent, he claims that he was promised a grade eight graduation gift from the applicant. The applicant did not give him a birthday gift and did not give him a Christmas card or gift.

[63] The applicant acknowledges that she wrote to the child about a graduation gift in an effort to generate conversation with him. She deposed that she placed $200 in an account for him for safekeeping, to give to him when they met for lunch or dinner. C. did not respond, and the court can only infer that the applicant takes the position that when the applicant gets what she wants, the child will receive the gifts that are intended for him.

[64] The material is clear that the applicant loves her son with her whole heart and that she wishes to ensure that they have a strong relationship. It is clear that her priority is to re-establish her relationship with C. However, the conditions imposed by her and the requirement for certain actions to take place prior to her carrying out with her promises support C.’s sentiments about a lack of trust and constitute a persuasive reason for the fractured relationship.

[65] Eight months after C. began residing primarily with his father, with no contact with his mother, she asked to take him on vacation for March Break. C., who had previously blocked his mother as a contact on his cell phone, unblocked her to tell her that he did not wish to go on vacation with her. He advised her that he wished to go on vacation with his father for March Break and asked permission. According to C., the applicant did not respond.

[66] This past March Break would have been the applicant’s parenting time according to the March 2022 order. The applicant blames the respondent for blatantly disregarding the parenting order and criticizes him for not incentivizing C.’s dissociation from his maternal family by offering him a trip during March Break.

[67] The applicant failed to acknowledge that the child had not seen her in the eight months prior and offers no other explanation for why he was prohibited from traveling on March Break with the respondent other than her strict reliance on the March 2022 order, from which the parties had already strayed.

[68] According to C., the applicant’s attempts to force him to visit her are not helping. He has stated that even if the court orders him to go see her, he would not go.

[69] C. admits to probably seeing the applicant one day, indicating that he is not ready, or close to ready, to re-establishing that relationship.

[70] The applicant has, in her material, repeatedly criticized the respondent and blames him entirely for the current state of affairs between herself and her son. She claims the respondent removed C. from her home during her parenting time on the day of the disclosure meeting for no stated reason and has wrongfully withheld him ever since.

[71] Further, she claims: − he has been showing C. her motion material; − C. lied; − C.’s statements are verifiably false and are statements that speak to his false perception of her; − C.’s views and preferences lack independence as they contain the use of adult language; − there has been negative messaging from the respondent; − C.’s attitude is defiant, and if not curbed in childhood, this is greatly concerning; and, − the respondent is doing nothing to repair her relationship with C.

[72] Most of the applicant’s material blames, deflects, or shifts focus on the respondent and C.

[73] C. clearly expressed to the Office of the Children’s Lawyer that he wishes to remain living with the respondent and that he will not have contact with the applicant at this time.

[74] He further expressed that he is not willing to engage in counselling or to work on his relationship with his mother at this time, indicating that even if he was told to go to his mother’s, he will not.

[75] Since the March 2022 order, there has been a material change in circumstance that has resulted in a compelling reason why the said order should be varied in accordance with C.’s views and preferences.

[76] I agree with the submissions of the respondent that the applicant seeking compliance with the parenting time of the March 2022 order, and makeup time, is not a realistic way to mend the relationship between herself and C.

[77] The proverbial damage has been done. According to C., the applicant has only attempted to contact him via text message. She texted him every Friday that he was supposed to be in her care. This frustrated C., who then blocked the applicant for a number of months.

[78] C.’s current relationship with his mother is deeply troubling.

[79] The applicant is seeking the appointment of family reconciliation therapist. Ms. Paula DeVeto, and the court must consider if such an order is appropriate.

[80] As cited by Jarvis J. in Testani v. Haughton, 2016 ONSC 5827, at para. 18, the court may order reunification therapy with the following considerations:

1. Such orders are to be made sparingly.
2. There must be compelling evidence that therapy will be beneficial.
3. The request must be adequately supported by a detailed proposal identifying the proposed counsellor and what is expected.
4. Resistance to therapy is an important but it is not the determining factor whether such an order should be made.
5. Where a clinical investigation or assessment is underway, no order should be made pending their conclusion.
6. Wherever practical, appropriate direction should be given to the counsellor/therapist and a report made to the court.

[81] Here, a general proposal has been offered to the court for consideration.

[82] However, I am not convinced that the potential benefits of reconciliation therapy outweigh the risk of C. becoming further entrenched in his perception of his mother. I make this conclusion having placed significant weight on C.’s views and preference and having considered C.’s current resistance to the process. I see no point in setting the parties up for failure.

[83] According to the evidence before the court, the concept of reunification counselling was discussed by the parties in July 2022, at which time the applicant revoked her consent to reunification counselling. At this time, the child is adamant that he will refuse to comply with any orders involving counselling with his mother.

[84] The evidence supports that when C. is pushed, he resists. For example, when his mother texted him every Friday to remind him of her parenting time, he blocked her on his cell phone. Should this pattern continue, forcing C. to participate in counselling which he strongly, consistently, and articulately objects to, might further fracture the relationship.

[85] If C. is not ready to voluntarily engage in counselling with his mother, an order for such therapy would be futile. Such an order would therefore not be beneficial to the child and would not bring the parties to their stated goal, which is to correct the course to avoid the entrenchments of potential irreversible attitudes and perspectives.

[86] As stated by the Court of Appeal, the court cannot fix every problem. There are risks of making therapeutic orders which include a child’s refusal to comply. See N.A. v. C.H., 2019 ONCA 764, at para. 71-72.

[87] This matter is scheduled for trial in November 2023. In my view, the trial should not be delayed. The issue of reunification therapy may be addressed at trial on a full evidentiary record, with the benefit of viva voce evidence and, hopefully, after C. has gained some insight into his current attitude and perspective about his mother.

[88] Between now and the trial date, it is imperative that C. undergo some individual therapy. Such individual therapy has the potential to cure a fractured relationship, but also has potential to influence C.’s future relationships in general.

[89] This 14-year-old’s views have been strong and consistently expressed. He has offered some hope that he will one day see her. While the court does not have the jurisdiction to compel children to engage in therapy, the court can order a parent to ensure their attendance. The parties, and this court, cannot turn a blind eye to the status of the relationship between C. and his mother.

[90] Most concerning to the court is the child’s view that when seeing his mother he felt depressed, and that now his life is less stressful. The child feels that if he went to his mother’s, his mental health would decline and that this would be upsetting. The child feels as though he has been emotionally traumatized based on things that have happened in the past with his mother.

[91] While the mother can attempt to deflect, criticize the respondent, or ignore this child’s expressed views and preferences, she cannot, and should not, overlook the potential that she played some role in the deterioration of the relationship.

[92] A lot of mistakes have been made, including the text message and the applicant inadvertently leaving her journal to be found by the children. A lot of fingers are being pointed. A lot of blame has been placed. I urge the parties to look introspectively to determine what they can do, within their own power and control, to ameliorate the relationship between C. and the applicant.

[93] The respondent will be required to encourage and take the child to counselling, to address the emotional trauma he claims to have suffered.

[94] The applicant should, despite the mistakes made and her steadfast belief that the March 2022 order should prevail above all else, acknowledge that there are two people involved in any relationship, each of whom must contribute, in roughly equal measure, to bringing their best self to that relationship with a view to provide unconditional support and love.

[95] Regrettably, neither party pursued an alternative claim for an order that the child attend individual counselling.

[96] Had they done so, this court would have considered such an order, including an order that:

1. The parties shall endeavour to agree on a counsellor/therapist suitable for C., with a view that he commence, as expeditiously as possible, therapy to address his relationship with his mother.
2. Once an agreed upon counsellor or therapist has been chosen, the respondent shall promptly contact that counsellor/therapist to commence the intake process. The parties shall promptly and accurately execute and delivery any and all paperwork required to commence C.’s counselling/therapy.
3. The parties shall ensure that the child attends counselling/therapy sessions as directed by the counsellor/therapist on a timely basis.
4. The parties shall ensure they follow any and all recommendations made by the counsellor/therapist on a timely basis and without delay.
5. C.’s participation in therapy/counselling shall take priority over any other scheduled or unscheduled activities.

[97] In my view, in consideration of all the evidence, and given the child’s age and his expressed views and preferences, it is appropriate to vary the March 2022 order, on a temporary without prejudice basis, such that the applicant’s parenting time with C. shall be in accordance with the child’s stated views and preferences, and that C.’s primary residency shall be with the respondent.

Disposition

[98] Paragraphs 1 and 2 of the March 2022 order shall be varied such that the applicant’s parenting time with C. shall be in accordance with the child’s stated views and preferences and C.’s primary residency shall be with the respondent.

[99] The applicant’s request for reconciliation therapy with Ms. Paula DeVeto is dismissed without prejudice to her right to renew her request at trial.

[100] The applicant’s request for a finding that the respondent is in non-compliance with the March 2022 order is dismissed.

2. Decision-making for G.

Position of the Parties

Applicant Mother

[101] The applicant mother seeks that the parties fully engage in good faith discussions pertaining to all suggested or pending major decisions regarding G. and an order that the applicant mother consider in good faith and in a timely manner the respondent father’s position and rationale.

[102] She suggests that after a period of consultation regarding a suggested or pending major decision, she have final decision-making authority of all major decisions regarding G. and that she will provide the respondent father with a written summary of her rationale for that decision.

Respondent Father

[103] The respondent father takes the position that there is no reason for this court to consider decision-making as it relates to G. at this time.

Legal Framework

[104] The principles set out in paras. [17] to [21] apply to this issue.

Analysis and Conclusion

[105] The March 2022 order did not deal with the issue of decision-making.

[106] The applicant alleges that after C. began residing with the respondent, the respondent unilaterally changed his high school without consulting her beforehand. It is alleged that the respondent indicated to the new school that he had custody of C., thereby allowing him to unilaterally register him.

[107] Further, the applicant alleges that C. has missed excessive amounts of school while in the respondent’s care.

[108] The respondent does not dispute this. The unilateral actions taken by the respondent is the result of poor judgment and/or mistaken understanding of his role as one of two parents. The respondent is cautioned to not continue down a path of unilateral decision-making between now and the release of the trial decision.

[109] According to the applicant, G. does not feel that she is treated equally or fairly by the respondent. This is supported by some of the comments G. made to the Children’s Lawyer as set out in the OCL’s affidavit.

[110] There was no evidence to support a finding that there are imminent, significant decisions that are required to be made regarding G.

[111] There is no compelling evidence to make an interim order for interim sole decision-making after a period of consultation.

[112] The evidence suggests that the parties have experienced a significant failure to communicate effectively. This inability to effectively communicate would not, on the facts before me, support an order that the parties engage in a consultation process.

[113] Accordingly, the parties will continue to make day-to-day decisions regarding G. while in their care.

[114] The parties are encouraged to continue to attempt to communicate through counsel, via email or text message, regarding any major decisions regarding G.’s medical/dental care, education, major extracurricular activities, or religion.

[115] The issue of decision-making should be left to be determined at trial.

Disposition

[116] The applicant’s request for a decision-making regime regarding G. shall be dismissed.

3. Additional Parenting Orders

Position of the Parties

Applicant Mother

[117] The applicant mother requests three parenting orders. The first parenting order deals with the parties’ requirement to exercise guidance, boundaries, incentives, and consequences in their parenting of the children to ensure compliance with court orders, and a requirement that they never accept any assertion by the children that they will or will not comply with the terms of court orders.

[118] The second parenting order sought by the applicant mother includes a requirement that each parent promote the other parent to the children as safe, loving, available, able to make substantial contributions to their upbringing, and that equal shared parenting is in their best interests.

[119] The last parenting order sought by the applicant is agreed upon by the respondent father and includes an order that neither parent make derogatory remarks about the other parent to the children.

Respondent Father

[120] The respondent father only consents to an order prohibiting the parties from making derogatory remarks about the other parent to the children.

[121] The respondent father does not support the other two parenting orders suggested.

Legal Framework

[122] The principles set out in paras. [17] to [21] above apply to this issue.

Analysis and Conclusion

[123] Given this court has not found that the respondent has acted in non-compliance with the March 2022 court order, the first parenting order sought by the applicant regarding exercising guidance, boundaries, incentives, and consequences to ensure compliance with court orders is not required.

[124] I am unable to make the second parenting order sought by the applicant. I refuse to make an order that the parties promote a finding of best interest when the court has not made a determination that equal shared parenting is in the best interest of the two children subject to this litigation.

[125] As the last parenting order is consented to, an order shall so issue.

Disposition

[126] An order shall issue that neither party shall make derogatory remarks about the other parent to the children.

4. Support Variation and Disclosure Issues

Position of the Parties

Applicant Mother

[127] The applicant mother seeks an order setting her income at $25,000 and imputing the respondent’s income in the range of $125,000 to $150,000. She asks that the respondent be denied any child support claims for a particular child for the period of time that he was in breach of the March 2022 order and further requests that the s. 9 child support arrangement apply, except to the extent that G. is in her primary care, in which case she claims that s. 9 should only apply to C.

[128] The applicant mother requests that the respondent provide full financial disclosure as required to resolve all of the issues in this case and as required by the Child Support Guidelines, as well as to support all items in his financial statement.

[129] She also requests that the respondent father provide his mortgage application documentation, financial and purchase documents, and real estate counsel’s reporting letter regarding his current home.

[130] Finally, the applicant mother requests that the respondent provide all offers and communications with RPS regarding their offer and/or request that he work from their Toronto office, and the November 29, 2022 letter of termination or related Record of Employment.

Respondent Father

[131] The respondent father seeks to impute the applicant mother’s income to $70,000 plus taxable capital gains of $7,200 and requests that his income be set at $103,442, which represents income of approximately $95,000 plus $4,200 in capital gains.

[132] The respondent father suggests that support flow as the parenting schedule dictates and that any overpayment of child support, and any overpayment of spousal support, remain a live issue to be addressed in the final determination of all issues.

[133] Further, the respondent father seeks an order that no spousal support be payable by him to the applicant mother effective January 1, 2023.

[134] The respondent takes the position that a Record of Employment and some of the documents requested by the applicant mother do not exist.

Legal Framework

[135] Where a motion contains a claim to change a temporary support order or agreement, the party making the motion shall serve and file a financial statement with the notice of motion, and the party against whom the claim is made shall serve and file a financial statement as soon as possible after being served with a notice of motion but no later than two days before the motion. See r. 13(4) and r. 13(4)2 of the Family Law Rules, O Reg 114/99 (“FLR”).

[136] Further, the parties are required to serve and file updated financial statements prior to the motion if the information in the last financial statement is more than 30 days old by the time the motion is heard. The updated financial statement is required to be filed six days before the motion in the case of the party making the motion and four days before the motion in the case of the other party: see r. 13(12)(b) and r. 13(12.2) 2 FLR.

Analysis and Conclusion

[137] Notwithstanding the fact that both parties seek to vary a temporary/ interim order for support, neither party filed financial statements as required under the FLR.

[138] Their failure to comply with the FLR should result in a dismissal of their respective relief sought for a variation of support.

[139] Furthermore, at the commencement of the motion, counsel advised the court that the parties settled the issue of the request for a vocational assessment.

[140] The applicant is to attend a vocational assessment, the outcome of which will likely assist the court in determining whether it is appropriate to impute income to her. With the trial set to take place in months, the variation can be addressed at that time with the benefit of the vocational assessment report.

[141] There is a dispute regarding the appropriate income to be attributed to the respondent. Significant disclosure requests remain outstanding, and these requests should be dealt with in advance of the trial scheduled for November.

[142] The applicant is seeking the respondent’s mortgage application, agreement of purchase and sale and reporting letter concerning his new home. The respondent takes the position that these documents are not relevant as he was employed at the time that he applied for the mortgage.

[143] In her affidavit, the applicant takes the position that it is unnecessary for the respondent to have a copy of her agreement of purchase and sale and related real estate documents for her new home. Nevertheless, she requests this of the respondent. No explanation was offered to account for the contradictory position held.

[144] Unless the parties are agreeable to mutually produce their agreements of purchase and sale and related real estate documents for their respective new homes, an order will not be made for the production of same.

[145] The applicant’s request for financial disclosure in support of all items in the respondent’s financial statement is required under the Rules, without which the issue of determining how to vary an interim order for support is made difficult.

[146] An order shall issue requiring the respondent to produce a Certificate of Financial Disclosure, with all supporting documentation within 30 days.

[147] I do find the applicant’s request for particulars regarding the respondent’s recent termination to be relevant to the issue of support.

[148] The court acknowledges the respondent’s position that some of these documents do not exist.

[149] An order will be crafted to account for this as set out below.

Disposition

[150] Any child or spousal support payable, taking into consideration the change in parenting schedule effective May 4, 2022, shall be addressed in the final determination of all issues. Any overpayment or underpayment of child support, any overpayment and underpayment of spousal support, shall remain live and shall be addressed at trial.

[151] The respondent shall serve and file, within 30 days, a Certificate of Financial Disclosure, with all supporting documents appended to same.

[152] To the extent that the documents exist and have not already been provided, the respondent shall provide to the applicant, within 30 days, all offers and communications with RPS regarding their offer and/or request that the respondent work from their Toronto office, the November 29, 2022 letter of termination, or Record of Employment.

Orders

[153] On consent, pursuant to the Children's Law Reform Act, R.S.O. 1990, c. C.12,

1. On an interim without prejudice basis, [G.], born [2010], shall live primarily with the Applicant, Lisa Eve Otto, and have parenting time with the Respondent, Stephen Timothy Otto, every Wednesday from 5:00 p.m. to 8:00 p.m. and on alternate weekends from Friday pick up from school or 3:30 p.m. to Monday morning return to school or 9:00 a.m.
2. The Respondent’s, first weekend with [G.] will commence on March 31, 2023.
3. The Applicant shall be responsible for dropping [G.] off for her parenting time with the Respondent.
4. The Respondent shall be responsible for dropping [G.] off for her parenting time with the Applicant.
5. If the Respondent is unable to care for [G.] during his Wednesday parenting time, he shall notify the Applicant and give her the opportunity to do so. If the Applicant cannot care for [G.], the Respondent shall make childcare arrangements at his own expense.
6. Neither parent shall make derogatory remarks about the other parent to the children or within earshot of the children, nor will either party discuss the litigation herein with the children. For greater certainty, each parent will refrain from speaking ill of the other parent, their partner, their families and their friends, at all times. The parties shall not share or discuss with the children inter-parental communications or disputes, nor shall they permit anyone to do so.
7. The parties shall not engage in any manner of conflict, subtle or overt, in the presence of the children and, accordingly, shall relate to one another in a reasonable and cordial manner in all instances in which the children are present or nearby.

[154] On consent, pursuant to the Family Law Act, R.S.O. 1990, c. F.3,

8. The Applicant shall attend for a vocational assessment with Metrics Vocations Services within 90 days of the date of the Order, and the cost of the assessment ($3,200 + HST) to be paid by the Respondent in first instance, with the trial judge having the right to reapportion costs.

[155] This court orders, pursuant to the Children's Law Reform Act, R.S.O. 1990, c. C.12,

9. Paragraphs 1 and 2 of the Gorman J. order dated March 16, 2022 shall be varied such that the Applicant’s parenting time with the child, [C.], born [2008], shall be in accordance with [C.]’s stated views and preferences, and [C.]’s primary residency shall be with the Respondent.
10. The Applicant’s request for reconciliation therapy with Ms. Paula DeVeto is dismissed without prejudice to her right to renew her request at trial.
11. The Applicant’s request for a finding that the Respondent is in non-compliance with the Gorman J. order dated March 16, 2022 is dismissed.

[156] This court orders, pursuant to the Family Law Act, R.S.O. 1990, c. F.3,

12. Any child or spousal support payable, taking into consideration the change in parenting schedule effective May 4, 2022, shall be addressed in the final determination of all issues. Any overpayment or underpayment of child support, any overpayment and underpayment of spousal support, shall remain live and shall be addressed at trial.
13. The Respondent shall serve and file, within 30 days, a Certificate of Financial Disclosure, with all supporting documents appended to same.
14. To the extent that the documents exist and have not already been provided, the Respondent shall provide to the Applicant, within 30 days, all offers and communications with RPS regarding their offer and/or request that the Respondent work from their Toronto office, the November 29, 2022 letter of termination, or Record of Employment.

Costs

[157] On consent, this court orders that there shall be no costs payable with respect to the parenting time for G. and the issue of the vocational assessment.

[158] Counsel are strongly encouraged to agree on costs. If an agreement is reached, the parties shall advise the court accordingly.

[159] If they are unable to agree, any party who is seeking costs may deliver brief written submissions, no more than two pages double-spaced, excluding offers to settle and bill of costs by May 29, 2023.

[160] The responding costs submissions, of no more than 2 pages, double spaced, excluding offers to settle and bill of cost may be delivered by June 5, 2023.

[161] If no costs submissions are received within the timelines set out above, the parties will be deemed to have settled the issue of costs.

“Justice Kiran Sah” Justice Kiran Sah Date: May 1, 2023