Court File and Parties

COURT FILE NO.: FC 1174/17-01 DATE: 2023/07/17

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

C. A. L. Stephanie Ouellette, for the Applicant Applicant

- and -

J. R. In person, for the Respondent Respondent

HEARD: January 9, 10, 11, 12, 13, 16, 17, 18, 19, 25, 2023

MITROW J.

INTRODUCTION

[1] This two-week trial was in relation to the claims advanced in the applicant’s motion to change issued October 20, 2021, and the claims advanced by the respondent in his response to the applicant’s motion to change.

[2] The main issue in the trial centered on changes sought by each party to the parenting provisions contained in the two final parenting orders. The other lesser issue was the applicant’s request to increase the child support contained in an existing final order. The applicant, C. A. L. (“the mother”) and the respondent, J. R. (“the father”) are parents of two boys, J. and K., who were, respectively, ages 10 and 8 at the time of trial. As discussed in more detail below, each child has significant special needs which includes a diagnosis of Autism Spectrum Disorder.

[3] There is no dispute that this is a high-conflict parenting case. As a consequence of the evidence adduced during the course of the trial, the position taken by each party at the outset of the trial had softened when compared to the position taken at the conclusion of the trial. In particular, there was a significant metamorphosis in the mother’s position as she abandoned completely her claim advanced at the beginning of trial that the father should have no parenting time with the children for a period of three years.

[4] The parties were married in 2012 and separated in 2017. Neither party has obtained a divorce. The parties agree that this case proceeds pursuant to provincial legislation.

[5] For reasons that follow the court finds that there has been a material change in circumstances in relation to parenting and child support, and the order below awards sole decision-making responsibility to the mother, with parenting time to the father as specified, and with the child support being adjusted to reflect changes in the father’s income.

THE EXISTING FINAL ORDERS IN RELATION TO PARENTING

[6] A significant theme reflected in the litigation history is the mother’s complaint that the father interferes with the children’s service providers including the specialized team that provides therapy for the children through an Ontario government-funded program.

[7] A team headed by Dr. Carmen Hall (“Dr. Hall”) had been providing therapy services to the children for a number of years – from August 2017 for J. and from August 2018 for K.

[8] Dr. Hall has a PhD in clinical psychology. It was her evidence at trial that she has worked with children with autism for 19 years. In 2013, Dr. Hall received her Board Certified Behaviour Analyst credentials from the United States.

[9] Dr. Hall withdrew her services effective the end of August 2022. It was the mother’s position that Dr. Hall made this decision because of the father’s conduct towards Dr. Hall. That allegation is explored later in these reasons.

a. Final order of McArthur J. dated November 22, 2019 (“the McArthur order”)

[10] Although the McArthur order, made on consent, is described as being “temporary” and also “final”, it is apparent from the order that the numerous paragraphs constituting the parenting order are final. The only temporary order is para. 21, adjourning the “remaining issues in the action, including a police enforcement provision” to a specified date to be spoken to.

[11] It is apparent from the history of this case, that the father, initially, had supervised parenting time with the children. A substantial focus of the McArthur order was to create a plan to transition and gradually increase the father’s parenting time, with the assistance and participation of the children’s therapist, Dr. Hall.

[12] The following is a summary of the relevant provisions of the McArthur order (utilizing the terms “custody” and “access” as contained in the order):

a. The mother has sole custody of both children; b. The father’s access to the children shall be transitioned gradually, to be individualized for each child; c. Any changes to access to be planned, directed, and assisted by the child’s therapist, currently Dr. Hall; d. For K., the transition to expanded access contains specific times and locations, with pick-up initially to occur at Merrymount – Family Support and Crisis Centre (“Merrymount”), such that by March 2020, the father’s access shall be in his home on alternate Sundays from 10:00 a.m. until 6:00 p.m. (para. 6a.); e. For J., the transition to unsupervised access is set out, with the pick-up for the first visit to be at Merrymount, such that by late January 2020, the father’s access shall occur in his home on alternate Saturdays from 10:00 a.m. until 6:00 p.m. (para. 6b.); f. Access was implemented on alternate Tuesdays, such that one child would attend one week, and the other child would attend the following week; g. By March 2020, both children were to attend Tuesday visits together from after school until 6:30 p.m. (para. 6c.); h. Overnight visits were to be introduced slowly between a six-month to one-year period in conjunction with recommendations from Dr. Hall, or a psychiatrist, and based on the children’s sleep patterns; i. The order contained access provisions for special occasions and holidays. For summer vacation, the father’s access was one week in July and one week in August, but for 2020 the “week” was limited from Sunday at 11:00 a.m. to Wednesday at 6:00 p.m. but thereafter the week was from Friday to Friday; j. The order contained parameters regarding the father’s ability to leave the children with alternate caregivers; and the order contained provisions regarding communication between the parties, including that those communications be brief, focused on the children and that the parties will not harass or impugn the other; and k. The most dramatic term of the parenting order provided that if any future actions are initiated or undertaken by the father that jeopardize the children’s special needs autism funding or result in services to the children, from any source, including doctors being disrupted or that risk services/funding being restricted or stopped, then the father’s access shall be “rescinded completely” (para. 13).

[13] Regarding the provisions in the McArthur order dealing with rescission of access, it is not necessary in these reasons either to delve behind the order or review evidence that led to the order. The fact that McArthur J. found it necessary to make that order speaks to the risk posed by the father’s propensity to interfere with the children’s service providers.

[14] On July 5, 2022, Hassan J. heard the mother’s motion for interim relief to suspend the father’s parenting time with both children. This relief sought by the mother was based on her allegations that the father was making threats and ungrounded allegations against the children’s therapists including Dr. Hall, to the point that the mother was fearful that the therapists would withdraw their services.

[15] While the order of Hassan J. dated July 15, 2022 did not terminate the father’s parenting time, Hassan J. did order on an “interim interim without prejudice basis” pending further order of the court, that the father shall not: (1) have direct or indirect contact with Dr. Hall or any person providing services to the children under Dr. Hall’s treatment plan; (2) have contact with any third party in relation to Dr. Hall or any person providing services to the children under Dr. Hall’s treatment plan, and (3) access or attempt to access any private communication of Dr. Hall or any person providing services to the children under Dr. Hall’s treatment plan.

b. Final order of Price J. dated August 19, 2020 (“the Price order”)

[16] The Price order focused only on the father’s “access” including overnights. The following is a summary of the relevant provisions of the Price order (utilizing the term “access” as specified in the order):

a. The father’s regular access schedule for both children was alternate weekends from Friday at 3:30 p.m. until Sunday at 6:00 p.m. and every Tuesday from 3:30 p.m. until 6:30 p.m.; b. The parties were not to communicate with each other during access exchanges “unless absolutely necessary”; c. There were detailed provisions prohibiting the parties from discussing the litigation with the children, or in front of the children, and prohibiting the parties from allowing the children to have access to any material or documents related to the litigation; and d. The McArthur order remained in effect except to the extent amended by the Price order.

[17] It is noted that when the Price order was made, that the father was still subject to the terms of a two-year probation order made in 2019 after he was convicted of unauthorized use of a computer. This conviction involved the father accessing the mother’s electronic communications. The probation order had included a nonassociation provision regarding the mother, but with an exception that there could be communication if permitted by an order made by the family court.

THE CHILDREN

a. K.

[18] Dr. Rob Nicolson, who is a psychiatrist at the Children’s Hospital, London Health Sciences Centre, provided a brief medical report dated January 12, 2023 regarding K. Dr. Nicolson confirmed that K. has a diagnosis of Autism Spectrum Disorder and Intellectual Disability.

[19] Dr. Nicolson indicated that the above diagnoses indicate a severe communication, cognitive and behavioural disability which is a significant impediment to K.’s daily functioning. K. is described as having constant difficulty with communication skills, social skills, and self-regulation. Dr. Nicolson indicated that K. requires constant redirection, guidance and supervision in order to maintain his safety. K. has an inability to interact, communicate or respond appropriately to others.

[20] Dr. Nicolson described K. as having extreme problems dealing with his environment, particularly with any changes or new demands.

[21] Due to the nature of K.’s disability, it was Dr. Nicolson’s opinion that it is profoundly unlikely that K. will ever be able to live or work independently at any point in his life. He will require almost constant adult support, supervision and guidance to ensure his safety and development.

[22] It was Dr. Nicolson’s opinion that all the people involved with K.’s care, including his parents, educators and respite workers, must be familiar with the approach to behavioural difficulties in children and adolescents with Autism Spectrum Disorder. K. requires consistent and clear expectations in the approach that all people use with him. Dr. Nicolson indicated it is essential that K.’s behaviour program be implemented appropriately in all environments to ensure the best outcome.

[23] In relation to medications that K. has been prescribed, Dr. Nicolson’s report indicates it is essential for K.’s safety and for the effectiveness of his medications that they be given to him consistently and appropriately according to the directions provided.

[24] A psychological assessment report dated October 7, 2022 regarding K. was prepared by the Thames Valley District School Board. K. was assessed by Dr. Vanessa Pedden, a psychologist.

[25] While Dr. Pedden’s report contains some similar information as contained in Dr. Nicolson’s report, the following is some additional information regarding K. contained in Dr. Pedden’s report:

a. The purpose of the assessment was to determine if K. also meets the criteria for Intellectual/Developmental disability; b. K. has been diagnosed with Global Development Delay. K. is non-verbal and uses the Picture Exchange Communication (PEC) system at home; c. For the past three years K. has received intensive therapy in the home – he receives funding for 20 hours per week. The current goals include supporting transitions, reducing K.’s self-injurious behaviour (in particular head banging) and dealing with life skills; d. K. was in grade three at the date of the report. He attends school Monday to Friday from 1:00 p.m. to 3:30 p.m. and his learning needs are supported through an Individual Education Plan (IEP); e. K. is identified as a student with an exceptionality – Communication: Autism; f. K. has a difficult time transitioning inside the school building and he has demonstrated consistent, repetitive and severe head banging each day (it is noted that K. was assessed on three specific dates in mid-September and early October 2022, which would be early in the school year); g. K. attends school on a part-time basis on a modified day in order to allow K. to have therapy in the home setting; h. K. communicates non-verbally using gestures, body language and facial expressions. At times, he signs “more.”; i. In relation to behavioural observations, K. was observed over two days in the classroom and outside during an attempted transition into the classroom. During classroom observation, K. often banged his head on the desk. His communication binder was used several times, as was his visual schedule, but K. did not appear to use these tools functionally; j. Dr. Pedden indicated that K. often banged his head on the outdoor furniture, cried, whined and threw the binder; k. Inside the school, K. was observed to engage in repeated head banging on the wall, floor, window and an attempt at head banging on the body of his education assistant; l. K.’s observed vocalizations include yelling, whining and crying; m. K. was described as being unable to transition into the classroom as he became fixated on the doors in the hallway. During the observations, nearly every request placed on K. resulted in self-injurious behaviour; n. Regarding cognitive/intellectual behaviour, it was determined that K. was unable to engage in standardized testing; despite many years of intensive therapy and individual education assistant support, K.’s progress across developmental and academic domains has been limited. o. It was Dr. Pedden’s clinical opinion that K.’s cognitive/intellectual abilities are significantly weaker than other youth his age; p. Dr. Pedden made a diagnosis of Unspecified Intellectual Disability.

[26] The background information obtained by Dr. Pedden included an interview with the mother. There is no indication that Dr. Pedden met with the father.

b. J.

[27] Dr. Nicholson is also J.’s psychiatrist, and he provided a medical report regarding J. dated January 12, 2023. Dr. Nicholson confirmed that J. has a diagnosis of Autism Spectrum Disorder, Intellectual Disability and Tourette Syndrome.

[28] Dr. Nicholson opined that these diagnoses indicate a severe communication, cognitive and behavioural disability which is a significant impediment to J.’s daily functioning. As a result of his disability, J. has consistent difficulty with communication skills, social skills and self-regulation. He requires constant redirection, guidance and supervision in order to maintain his safety.

[29] J.’s diagnoses also indicate an inability to interact, communicate or respond appropriately to others. J. has extreme problems dealing with his environment, particularly with any changes or new demands.

[30] Given the nature of his disability, J. is likely to require some level of support in terms of his housing and work throughout his life.

[31] All persons involved with J. including parents, educators and respite workers, must be familiar with the approach to behavioural difficulties in children and adolescents with Autism Spectrum Disorder. J. requires constant and clear expectations in the approach all people use with him.

[32] It is essential that J.’s behavioural programs be implemented appropriately in all environments in order to ensure his best outcome.

[33] Also Dr. Nicholson opines that it is essential for J.’s safety and for the effectiveness of his medications that they be given consistently and appropriately according to the directions provided.

[34] A psychological assessment was prepared by the Thames Valley District School Board dated October 25, 2021. The author of the report was the same person who assessed K., Dr. Vanessa Pedden.

[35] The background information obtained by Dr. Pedden included an interview with the mother. There is no indication that Dr. Pedden met with the father.

[36] The following is a summary of some of the information contained in Dr. Pedden’s report:

a. At the date of the report, J. had recently commenced grade three; b. J. has had a history of academic difficulties. The purpose of the assessment was to better understand J.’s learning strengths and needs and to support program planning; c. J. historically has struggled with speech and academic skill development. The mother had shared that J. just recently began to speak, that J. often uses one or two words to communicate; d. J. was seen for a speech and language assessment in grade one given his difficulties with receptive and expressive language skills. His Receptive Language Index and understanding of language fell in the Severe Delay range; e. An assessment conducted in September of 2020 indicated that J. showed consistent increases across most domains of learning including several areas of strength such as reading, writing and math. Consistent improvements in language skills were noted but continued to be an area of need; f. An academic assessment of J. was administered on November 30, 2020. This assessment dealt with basic reading, written expression and mathematics. In all various subcategories, J. scored either extremely low or below average; g. Dr. Pedden concluded in her testing that J. displayed variable intellectual abilities, with strengths noted on tasks assessing his non-verbal skills and significant weaknesses on tasks that assessed verbal comprehension skills, working memory skills and processing speed skills; h. Based on the assessment J.’s Nonverbal IQ Index fell in the average range and his Verbal IQ Index fell in the extremely low range; i. Dr. Pedden noted that while it is important to recognize that J. presented with some average nonverbal abilities, that this is not the standard by which expectations should be set. Without solid and consistent functional verbal skills, J. is always going to need assistance to navigate the world; j. Dr. Pedden concluded that J. displays significant weaknesses in his overall thinking and reasoning skills and significant weaknesses with his adaptive skills in both the home and school setting. J. meets the criteria for Intellectual Disability (Intellectual Development Disability) in the Moderate range; k. Individuals with Intellectual Disability typically develop slower than their same-age peers. They require more focused practice on learning skills, but are often capable of supported independence in some areas. Even with support, it should not be expected that J. would “catch up” to his peers; and l. J. will require support and teaching to further develop his functional academic skills and his daily living skills. J. meets the school board’s criteria for an educational exceptionality: Intellectual Developmental Disability. J. would also meet criteria for a student with multiple exceptionalities.

MATERIAL CHANGE IN CIRCUMSTANCES IN RELATION TO THE TWO FINAL PARENTING ORDERS

[37] There was much unnecessary evidence at trial regarding events that occurred prior to the two final orders. Both parties failed to focus sufficiently on the threshold issue as to whether there has been a material change in circumstances since the final orders that affects or is likely to affect the best interests of the children.

[38] Section 29(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), states:

Variation of orders

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

[39] At times this trial resembled an application where each party was seeking an original parenting order without regard to the existing final orders and without regard to the threshold issue. This approach resulted in the trial taking longer than was necessary.

[40] The mother’s approach did have some identifiable focus as to whether a material change in circumstances had occurred when considering paragraph 13 of the McArthur order. [1] The father’s general approach, in support of his claims, was not mindful of s. 29(1).

[41] I conclude that a material change in circumstances did occur when Dr. Hall’s therapy team withdrew its services. I conclude further that this withdrawal of services occurred because of the father’s conduct.

[42] The McArthur order emphasized the importance of Dr. Hall’s participation, and the order imposed dramatic consequences on the father should he interfere with the provision of therapeutic services.

[43] The mother’s evidence was compelling as to the importance and significance of Dr. Hall and her team in the children’s lives. I accept the mother’s evidence, quite emotional at times, as to the negative effect, on both children, after the withdrawal of services by Dr. Hall effective the end of August 2022. Both children, soon thereafter, began to regress and lost some gains that they had made under the tutelage of Dr. Hall and her team. For the mother, she had lost her “lifeline.” For these two special needs children, Dr. Hall had been a stalwart and reliable resource. It was not in either child’s best interests to lose the benefit of Dr. Hall’s involvement. Dr. Hall did send a joint email to both parties on February 16, 2022 [2] indicating that her team’s focus will be limited to therapy, and that Dr. Hall’s team will not be involved in litigation or other matters between the parties.

[44] In her testimony, Dr. Hall recounts that the parties, at times, wanted her to make decisions about matters such as parenting time, which Dr. Hall indicated was outside her mandate. Dr. Hall testified that she was not a decision-maker regarding the parties’ litigation.

[45] Although both parties had contributed to pressuring Dr. Hall to make decisions that dealt with parenting issues, I am satisfied on the evidence that it was the father’s conduct that precipitated the withdrawal of services.

[46] The father had levied criticism towards Dr. Hall, including accusing her of a conflict of interest and being biased in favour of the mother. The father claimed that Dr. Hall’s relationship with the mother was too friendly. As part of the disclosure that the father received, he filed as an exhibit over 200 hundred pages of texts between Dr. Hall and the mother in an attempt to show the alleged inappropriate nature of their relationship. I find that those texts do not support the father’s position – rather the texts show over the years, Dr. Hall’s high level of dedication and commitment in assisting the mother with the children’s special needs. On various occasions in the texts, the mother expresses her gratitude to Dr. Hall and her team and acknowledges how much she depends on them and how much the children have benefited from their involvement.

[47] The father complained that Dr. Hall had made a false statement to the Children’s Aid Society in London (“the Society”). I accept Dr. Hall’s evidence that she had spoken with the Society child protection worker who had made an incorrect entry in her notes concerning a statement made by Dr. Hall about the father, and that Dr. Hall made a significant effort to have the Society amend its records to correct the error. The evidence does not support the allegation that Dr. Hall made a false statement.

[48] The father points out that Dr. Hall, during her cross-examination, testified that it was not part of her business to provide respite care, However Allison Groot (“Ms. Groot”), who was a member of Dr. Hall’s team, had testified that respite care was provided through Dr. Hall’s business. The father then submits that this questions the integrity of Dr. Hall. I do not agree. Dr. Hall testified during cross-examination that her employees do not provide respite care through her company, but that there is another funding agency, which Dr. Hall does not oversee, that does allow families to hire respite workers to assist parents who have a child with a disability.

[49] Dr. Hall, as the administrator and principal of her business, has intimate knowledge of all aspects of funding as she demonstrated during her testimony. I accept, and prefer, Dr. Hall’s evidence, over that of Ms. Groot, as to the funding of respite care. The source of Ms. Groot’s knowledge about respite-care funding and the existence of another funding agency, was not explored with Ms. Groot during her testimony.

[50] The father made a number of submissions referring to Dr. Hall breaching her Code of Ethics, with specific reference to certain sections. None of these submissions are persuasive. The Code of Ethics was not filed as an exhibit.

[51] The father’s past history with service providers was the subject of critical commentary in a report, in an earlier proceeding, filed by the Office of the Children’s Lawyer (“OCL”) appended to the clinician’s affidavit sworn October 31, 2019 (“the OCL report”). [3] The father was described as “overzealous” and inundating service providers, counsel, the mother, health providers and the court with notions and demands. The OCL clinician noted that the father may not have considered the resultant energy and work necessary to sort through all his complaints, demands and accusations.

[52] The OCL clinician’s observations were most prophetic. The father subsequently subjected Dr. Hall to a similar overzealous campaign. During the trial, it was necessary to hear submissions and issue two rulings regarding the father’s request for documentary disclosure from Dr. Hall by way of motion and subpoena.

[53] The father’s frenetic expenditure of energy focused on Dr. Hall was neither productive nor warranted, and it was not in the children’s best interests.

[54] In an exchange of emails on June 6, 2022 between the father and Dr. Hall’s counsel, Elizabeth Bowker (“Ms. Bowker”), the father raised the issue of whether Ms. Bowker would be “accepting service for Civil proceedings with regard to your clients?” The “clients” being referred to are Dr. Hall and Ms. Groot.

[55] While the father never did commence legal proceedings against Dr. Hall or Ms. Groot, the email string between Ms. Bowker and the father suggests, quite clearly in my view, that the father is contemplating litigation. The father even suggested a meeting “to settle this matter to eliminate costs.” I found the father’s evidence at trial, downplaying the significance of his emails to Ms. Bowker, to be quite disingenuous. The father’s intention was to make both Dr. Hall and Ms. Groot believe that he was considering litigation against them.

[56] When Dr. Hall received a copy of the emails from Ms. Bowker, it was Dr. Hall’s evidence that she was “fearful” of being sued, and that this became “a turning point” for her where she knew that she could no longer provide treatment to the parties’ children. Dr. Hall testified that she did not want to compromise the treatment on the basis that she was fearful of what might happen. Dr. Hall was somewhat emotional when giving this evidence.

[57] Ms. Groot was called as a witness by the father. Ms. Groot had been involved as a therapist with both children as part of Dr. Hall’s team. During cross-examination, Ms. Groot was asked to describe her communications with the father. She described them as being challenging. When asked whether that made her want to stop providing services for the boys, Ms. Groot responded, saying not at first but that it got worse over time. When asked whether there was a “tipping point” as to providing services, it was Ms. Groot’s evidence that when they “heard about the potential civil proceedings coming against us” that it made it difficult to provide good clinical services to the boys, and that was what “mattered the most to us.” Ms. Groot too was somewhat emotional when giving this evidence.

[58] I conclude that Dr. Hall’s decision to withdraw services was difficult and emotional. The decision was taken because Dr. Hall felt that her team’s ability to provide the children with the best therapy possible was compromised because of the father’s conduct and threats.

[59] This was the worst-case scenario that para. 13 of the McArthur order had sought to avoid.

[60] I turn now to the order that should be made in the children’s best interests in light of the material change in circumstances.

THE LAW

[61] The following principles enunciated in Gordon v. Goertz, [1996] 2 SCR 27, regarding variation applications inform the analysis to be conducted in the present case:

a. Before the court can consider the merits of the motion to change proceeding, the court must be satisfied that there has been a material change in circumstances since the final parenting orders; b. The threshold requirement of a material change in circumstances means that the claims advanced in the mother’s motion to change and the father’s response to the motion to change cannot serve as an indirect route of appeal from the original orders; for both final orders, the court cannot retry the case, substituting its decision for that of the original judge; the court must assume the correctness of the decision and consider only the change in circumstances since the orders were made: para. 11; c. A material change in circumstances includes a change that has altered a child’s needs or the ability of the parents to meet those needs in a fundamental way: para. 12; and d. Once the threshold of a material change in circumstances is satisfied, the court should consider the matter afresh without defaulting to the existing arrangement; the judge on the motion to change must consider the matter anew, in the circumstances that presently exist: para. 17.

[62] The court must take into account only the best interests of the child when making a parenting order: s. 24(1), CLRA. In determining the best interests of the child, the court shall consider all the factors related to the circumstances of the child, and in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being: s. 24(2), CLRA.

[63] Section 24(3) of the CLRA sets out the following factors to consider in relation to best interests and the child’s circumstances:

Factors

(3) Factors related to the circumstances of a child include,

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; (d) the history of care of the child; (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (g) any plans for the child’s care; (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child; (j) any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and (k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

DISCUSSION – PARENTING ISSUES

a. The parents

[64] The mother lives alone with the two children. She is not employed outside the home and is in receipt of social assistance. While the mother did have some employment on a part-time basis in 2019, it was her evidence that she had to leave that employment due to the demands placed on her by childcare obligations for both children.

[65] The mother has an older daughter by previous relationship who is now an adult and no longer resides with the mother.

[66] The mother is in a relationship and her partner is self-employed in the painting business. The father expended significant energy at the trial focusing on the mother’s partner as to whether he was living with her and to what extent the mother works with him in his painting business.

[67] The mother did testify that she assisted her partner, at times, in his painting business. She testified in-chief that she was not paid for this, but in cross-examination, it was her evidence that she was paid for some of her work and that she “misspoke” about that earlier.

[68] The mother had described herself as a stay-at-home parent. She was challenged during cross-examination as to why at times she attended commercial premises during painting work with her partner. Again, she claimed that she does help out at times.

[69] The mother insisted in her testimony that her partner does not reside with her. During cross-examination she was referred to her form 35.1 affidavit sworn February 2, 2022 disclosing that her partner resides with her. The mother had filed two other form 35.1 affidavits, one sworn prior, and the other one sworn subsequent, to February 2, 2022, neither of which disclosed her partner living with her. The mother did acknowledge that her partner spends a lot of time at her residence.

[70] The father raised some credibility issues during his cross-examination of the mother regarding the mother’s 2008 criminal conviction of public mischief and leaving the scene of an accident. In her form 35.1 affidavit sworn October 15, 2021, in relation to criminal record, the mother deposed “none.”

[71] The OCL report indicated the mother told the clinician that she had no criminal record.

[72] While the foregoing does raise some credibility issues regarding the mother, I do not find that the mother’s credibility has been impeached in any significant way in relation to the parenting issues in this case.

[73] I do find considering all the evidence that the mother’s partner does not reside with her. The mother’s criminal record is known, and the mother corrected her form 35.1 affidavit to include this information. At most, the mother was somewhat sloppy in completing her form 35.1 affidavits both in relation to her criminal record and whether her partner resides with her.

[74] The father’s fixation as to whether the mother at times works in her partner’s business, was not of any assistance to the court in dealing with the relevant issues.

[75] The father works on a full-time basis. He lives alone with his two children. The father’s current partner testified at trial. His partner lives in her own residence and has two children.

[76] The father also has two younger children. Each child lives with that child’s respective mother.

[77] The father has been involved in litigation regarding parenting issues with the mothers of his other two children. During this trial, the father complained that the mother had been sharing information from this court case in order to assist the two mothers of his other children in their litigation involving the father. This behaviour by the mother served only to increase tensions and conflict between the parties.

[78] The earlier discussion describing the father’s evidence as disingenuous in relation to threats of civil action, speaks negatively to the father’s credibility. However, I find that in relation to both parents, where their evidence describes their respective observations and interactions with the children, that each party was doing his or her best to assist the court in understanding the behaviours and the needs of the children.

[79] I find that both parents were credible and reliable witnesses as to their respective narratives of the daily routines, challenges and activities involving the children.

b. Factors – best interests – Section 24(3)

i. Children’s needs – section 24(3) (a)

[80] The children’s needs are significant. This is apparent from the earlier discussion focusing on the children’s diagnoses. The evidence of each parent as to his or her observations of the children was consistent with the medical reports.

[81] The extent to which each child’s special needs creates demands on the primary care-giving parent cannot be overstated. The mother, generally, has devoted her life to raising the children and meeting their special needs. The funding for the children’s therapy programs through the Ontario Autism Program is an essential component, and support, in assisting the children with their special needs.

[82] K. engages in ongoing self-injurious behaviour evidenced by banging or hitting his head on various objects. The father was able to describe a strategy that he adopted at his home to minimize some of K.’s challenging behaviours including his self-injurious behaviour.

[83] Over the years, the children had established a rapport with Dr. Hall and her team. The children’s stability was disrupted significantly when Dr. Hall and her team withdrew.

[84] The father needs to be aware, in the strongest possible terms, that the children suffered as a result of his conduct that precipitated the termination of Dr. Hall’s services.

[85] It was sad to listen to the mother’s emotional evidence describing the children’s subsequent regression, including K.’s refusal to engage in therapy sessions at his home with the new therapy team. Those therapy sessions had to occur elsewhere.

[86] The children’s needs are lifelong and will follow them into adulthood. It is absolutely essential, that during their childhood, that the children’s therapists and other professionals must be able to focus on providing necessary therapeutic intervention free of harassment and unwarranted criticism and accusations.

[87] The children’s needs require both parents to be supportive of each other and supportive of the therapists and other healthcare providers.

[88] The parents, to their credit, have acknowledged the need to cooperate and end their conflict for the sake of their special-needs children. The parents need to implement that new strategy.

ii. The nature and strength of the children’s relationship with each parent, and others – s. 24(3)(b)

[89] There is no doubt on the evidentiary record that each child has a strong and loving relationship with each parent. Both parents are knowledgeable about their children’s special needs and have educated themselves as to how best to meet those needs.

[90] There was one glaring fact that emerged from the trial and this was as a result of the parents’ conflictual relationship and their lack of productive and child-focused communication. It was only during trial that the mother learned, listening to the father’s testimony, as to how the children are cared for by the father during his parenting time.

[91] The father gave detailed evidence describing his home, the many activities he engages in with the children, the children’s routines and diets, the safety precautions implemented in his home and all of the child-centered aspects of his home. The level of dedication that the father displays in meeting the children’s needs during his parenting time is impressive. The father’s evidence was corroborated by two witnesses, a former partner and his current partner, who each testified based on their own observations, as to the positive and nurturing environment created by the father in caring for the children and meeting their needs.

[92] In her reply evidence at the end of the trial, the mother testified that until then, she was not aware as to what was happening at the father’s home during his parenting time. The mother testified that the children like being at their father’s home and consequently, the mother abandoned her position to terminate the father’s parenting time.

[93] The children’s best interests require their current relationship with each parent be maintained.

iii. Each parent’s willingness to support the children’s relationship with the other parent; and the history of childcare – ss. 24(3) (c) and (d)

[94] Generally, the evidence suggested that each parent was supportive of maintaining the children’s relationship with the other parent.

[95] Regarding the history of childcare, the mother has been the primary caregiver for both children. She has been the “sole custodial” parent as reflected in the McArthur order. There was a long and ongoing process, as discussed earlier, to transition the father’s parenting time from supervised to unsupervised and then to include overnights.

[96] It is salient to note briefly some of the discussion in the OCL report. The clinician commended the mother for doing a “remarkable job” in parenting the children, advocating for their needs and being a devoted and dedicated mother. The father was described as a caring father who loves his children and who wants to be an active and involved parent. These characterizations were consistent with the evidence at trial. The OCL recommendations contained in that report formed the basis of the McArthur order.

iv. The children’s views and preferences; and the children’s background including cultural, linguistic, religious and spiritual – ss. 24(3)(e) and (f)

[97] Given the children’s limitations, there was no evidence adduced as to their wishes and preferences.

[98] Regarding the children’s cultural, linguistic, religious and spiritual upbringing and heritage, this factor was not identified as by either party as being an issue.

v. Any plans for the children’s care; and consideration of family violence: ss. 24(3) (g) and (j)

[99] The father proposed that the parties have “shared parenting decision making” for both children, but that the primary residence should remain with the mother. The father proposed that his schedule for regular parenting time with the children should follow the current schedule but with some changes. The father proposed that the alternating weekends be extended until Monday morning, and for the weekly Tuesday visits, the father proposed that those visits should be overnight until Wednesday morning.

[100] The most significant change sought by the father was that effective in January 2025, the children would reside with each parent on a week-about basis.

[101] The plan submitted by the mother on the main parenting issues, in essence, was to retain the status quo and that the mother continue to have sole decision-making responsibility and with the father’s regular parenting-time schedule to be in accordance with the current schedule consistent with the Price order.

[102] In assessing these respective plans, it is important to underscore that the children’s special needs require a routine that is structured, predictable and stable. As discussed earlier, the children reacted adversely when the therapy team changed. In relation to K., Dr. Nicholson indicated that K. has extreme problems dealing with changes in his environment. The children will need to reestablish a comfort level with the new therapy team. More change at this time is not in the children’s best interests.

[103] In particular, the father’s proposal for alternating weeks represents a significant departure from the mother being the children’s primary caregiving parent which is what the children have been accustomed to for many years. The children are doing well and are familiar with the current regular parenting schedule. The evidence at trial does not support any material changes being made to this schedule, including adding a weekly midweek overnight, or adding an overnight to each weekend. The children’s needs and best interests require that the current regular parenting schedule be maintained, subject to a minor change as discussed below.

[104] I do not concur with the father’s position that the parties should have joint decision-making responsibility. Historically, the mother has been the parent with sole decision-making responsibility. The children have been able to thrive under her care. There is a paucity of evidence to support a conclusion that joint decision-making responsibility is in the children’s best interests.

[105] Notwithstanding the father’s admission at trial that he has acted inappropriately towards the mother regarding his communications, and that he accepts responsibility for his conduct, it remains evident from the father’s evidence and his closing submissions including his written submissions, that he believes that the mother is a liar and perjurer, and that she had conspired with Dr. Hall to the detriment of the father. In his response to the mother’s motion to change, the relief sought by the father included a request that the court order the police to charge the mother with perjury. There is no basis in law enabling the court to make such an order.

[106] While the father acknowledged his responsibility for inappropriate behaviour towards the mother, it remains apparent that this acknowledgment is equivocal because unjustifiably the father continues to blame the mother for inciting his anger.

[107] On December 16, 2022, less than one month prior to the commencement of trial, the father sent the mother a vulgar and inappropriate text message. The mother complained at trial about the nature of the father’s offensive communications with her. The text message sent on December 16, 2022 constitutes harassment and psychological abuse, and falls within the ambit of “family violence” as defined in s. 18(1) of the CLRA.

[108] The father also blames the mother for a negative outcome in one of his court cases involving parenting issues for one of his other children. This attribution of blame is misguided. The applicant mother did testify that she was contacted by the other mothers in both of the other court cases involving the father and that she provided some support and information. While, as discussed earlier, the mother’s involvement seemed to heighten conflict between the parties, it is also the case that the father’s lashing out against the mother for an unfavourable result in that court litigation is misplaced anger.

[109] In various complaints regarding the mother, the father often referred to matters that occurred prior to the final orders; this evidence was not relevant to the threshold issue of material change in circumstances. Notwithstanding the relevance issue, I do address two emails from the mother to the father dated January 30, 2018 and February 6, 2018 filed by the father. [4]

[110] These emails are highly inappropriate, they are offensive, and they include admissions that the mother has made false statements against the father and that she will continue to do so.

[111] However, there is a serious issue as to whether these two emails were written and sent by the mother. The mother denied sending the emails. The dates of these emails are in the same time frame that the father was being charged with unauthorized use of the mother’s computer, in respect of which the father was subsequently convicted as noted earlier. The OCL report contains a narrative summary of the police records that includes, during March and April 2018, complaints that the father was accessing the mother’s emails without her consent and that charges were laid against the father.

[112] Despite the father’s evidence regarding these charges, on the balance of probabilities I am not satisfied these two emails were authored by the mother and I accept her evidence that she did not send them.

[113] The father’s negative attitude and mindset towards the mother, and his continuation of inappropriate communications with the mother, do not support an order for joint decision-making responsibility. Further, there are no facts adduced in the evidence that would constitute a material change in circumstances sufficient to vary the McArthur order in relation to decision-making responsibility.

[114] The mother has relied on the decision of Tobin J. in M.N.B. v. J.M.B., 2022 ONSC 38, at paras. 98-101, containing a helpful summary of the case law as to whether joint decision-making responsibility should be ordered. I concur with and adopt Tobin J.’s analysis.

[115] A significant issue in the mother’s plan deals with the father’s contact with members of the children’s therapy team. The mother’s position is that while the father is entitled to have some contact with the therapy team, it is necessary that this contact should be controlled with conditions specified in the final order. I agree.

vi. Each parent’s ability to care for and meet the children’s needs; and the ability and willingness of each parent to communicate and cooperate, in particular with one another, on matters affecting the children – ss. 24(3) (h) and (i)

[116] Regarding s. 24(3)(h) and consistent with the earlier discussion in these reasons, each party has demonstrated an ability to meet the children’s needs while the children are in their care.

[117] The more pressing issue, as mentioned earlier, is the ability of the parties to communicate and cooperate, particularly with one another, in relation to their children: s. 24(3)(i). While each party acknowledged a desire to have appropriate and child-focused communications, the issue remains as to the parties’ ability to do so.

[118] Vituperation, harassment, vulgarity, condescension, prolix emails, threats, rudeness, hostility, accusations and baseless criticism are not the ingredients of effective and child-focused communications between parents and between a parent and a child’s therapist. The necessity of a court to make orders to control the civility of communications by parents is unfortunate. Teaching people to be respectful and polite should be part of a parent’s responsibility in raising children – it should not be necessary for a court to intervene to micromanage parental behaviour by enjoining inappropriate communications.

[119] A significant issue in this trial is the father’s inability to control himself and to engage in respectful dialogue with not only the mother, but others including the children’s therapy team. It is unfortunate, but necessary, for the final order to include terms to control the father’s communication.

vii. Any civil or criminal proceedings, order, conditions or measure that is relevant to the safety, security and well-being of the children – s. 24(k)

[120] While the father had been subjected to a probation order, to which specific reference was made both in the McArthur order and the Price order, the father no longer is subject to any criminal or other orders. Accordingly, in making the final order below it is no longer necessary to consider the effect of any existing criminal or civil orders.

CONCLUSION – PARENTING ISSUES

[121] Both parents requested that the McArthur and Price orders be vacated and replaced by a consolidated final parenting order.

[122] I concur with that approach as a number of provisions contained in the existing final orders were time sensitive and are no longer applicable.

[123] Consistent with the earlier discussion, I find that it is in the children’s best interests for the mother to continue to have sole decision-making responsibility for both children and to have primary care of both children.

[124] In relation to the father’s parenting time with the children, I deal first with the regular parenting schedule. It is in the children’s best interests that the current regular schedule should continue with the exception that the father’s weekend access should be extended to Monday if Monday is a statutory holiday.

[125] Vacations and other special occasions are dealt with in the McArthur order. The parties did not have any material disputes concerning vacations and special occasions, and the order below reflects substantially the provisions contained in the McArthur order, but with some changes that include specifying the mother’s parenting time in relation to special occasions including Christmas, Easter and Thanksgiving. The vacation time also has provisions giving the mother an opportunity for the same amount of vacation time as the father.

[126] The father’s communication with the children’s therapy team requires controls that are reasonably stringent, as the evidence suggests there is a probable and palpable risk that the father may disrupt the therapy team’s services or funding.

[127] It is not in the children’s best interests, in the order below, to include a consequence such as a suspension of parenting time should the father breach the order by interfering with the children’s therapy team. The decision dealing with consequences in the event of a breach of the order should be made by the court at the time of the breach taking into account all relevant information and circumstances. I address also the following discreet issues raised at trial in relation to incidents of the parenting order:

a. Exchanges of the children shall occur at the school only for pick-up on Tuesdays, which is the current schedule. The father’s suggestion that all exchanges occur at the school, where possible, in order to avoid conflict was well intentioned. However, the children’s special needs are such that it is not practical to send the children to school with everything packed that they would need for the weekend including medication; b. Accordingly, except for pick up on Tuesdays, all exchanges of the children should occur at the location currently used by the parties, as specified in the order below; c. It was the mother’s evidence that she has not listed the father as an alternate emergency contact with the school and other service providers; she has instead listed her mother. Both parents shall be named as emergency contacts with all service providers including the children’s school; d. The mother complained as to the father’s practice of recording, or taking pictures including at exchanges; the order below prohibits same; e. The mother did not dispute the father’s evidence that she only advised him of the children’s appointments with healthcare professionals after the fact and not before the appointment; the order below requires the mother to provide the father in advance with information as to scheduled healthcare appointments for the children; and f. The father raised an issue regarding the children’s medication. The father wanted the ability to attend at a pharmacy to order and pick up prescribed medication for the children for his use during his parenting time. It was the mother’s evidence that medication is prescribed for 30-day periods at a time. The father’s request creates unnecessary issues regarding duplicate prescriptions for the children. I find that it is in the children’s best interests for the mother to retain control over the prescriptions and to provide the father with sufficient prescription medication to administer to the children while they are in his care. The mother indicated that she would make an effort to place the pills in original prescription bottles that have the labels containing the information as to the prescription medication.

[128] In making the final order below, I have considered each party’s thoughtful and detailed proposed amended final draft orders. [5]

CHILD SUPPORT

[129] Provisions for child support are contained in the final order of Gorman J. dated September 12, 2019 (“the Gorman order”). Pursuant to this order, the father is required to pay table child support in the amount of $367.10 per month commencing September 1, 2019 based on the father’s 2018 income of $24,320. The father’s income has changed and therefore the child support should be varied: s. 37(2.1), Family Law Act.

[130] The father’s financial disclosure was incomplete. He failed to comply with various disclosure orders including the most recent order of Hassan J. dated August 2, 2022. The father failed to provide a fresh financial statement and his 2021 tax return and notice of assessment as required by that order.

[131] The father made incomplete financial disclosure during the trial by providing his T4 slips for 2020 and 2021, pay statements for December 2022 and January 2023 and his notice of assessment for 2020.

[132] There was a suggestion by the father during his evidence that he has the children at least 40% of the time. There is no basis for that claim. The father also focused on the government funding available to assist the mother with the children’s special needs including therapy. The evidence at trial indicates that the funding is administered by a third party. For example, it was Dr. Hall’s evidence that she submitted her accounts to a third-party for payment.

[133] The father argues that it would be appropriate to have the funding shared between the parties. There is no basis for the court to make an order to distribute the government funding between the parties. That is an administrative matter controlled by the funding source. Also, the funding source was not a party in this court case. The mother, as the parent who has sole decision-making responsibility (formerly custody), has applied for the funding and she has set up a process to administer the funds, including paying for the children’s therapy team. The government funding available to assist the children’s special needs including ongoing therapy is analogous to payment of s. 7 expenses. The mother has made no claim against the father in this case for s. 7 expenses.

[134] There is no basis in law to support the father’s argument that he should not pay child support because the mother has the benefit of government funding.

[135] An interim order was made on December 23, 2021 requiring the father to pay increased child support in the amount of $748 per month, commencing January 12, 2022 based on a 2020 income of $49,619.

[136] The mother’s motion to change created some confusion by requesting an increase to child support retroactive to two different dates – July 1, 2020 and September 1, 2020. [6] I find that the father has engaged in blameworthy conduct by failing to make timely financial disclosure as ordered, and I find that the child support should be adjusted back to September 1, 2020 to take into account the increases in the father’s income.

[137] I make the following findings as to the father’s income:

a. Pursuant to his 2020 notice of assessment, the father’s income for 2020 is $49,619 which I round to $49,600. The father could not explain at trial why there was a discrepancy between his 2020 T4 showing an income of $46,185 as compared to the greater income disclosed in the notice of assessment; b. For 2021, the father’s income is $54,258 as disclosed in his T4 for 2021, which I round to $54,300; c. For 2022, I fix the father’s income at $53,560 which I round to $53,600 based on the father’s pay statements showing a gross weekly income $1,030. This annual amount is consistent with the year-to-date income shown on the December 30, 2022 pay statement; and d. For 2023 onwards, I use $53,600. The father’s January pay statements disclosed the same weekly gross salary of $1,030.

[138] The parties did not file a statement of arrears from the Director’s office. Accordingly, the order below adjusts the father’s obligation to pay child support effective September 1, 2020 based on his income, and the order provides that the Director shall calculate the child support arrears after crediting the father with all support payments made pursuant to existing orders.

[139] It is not possible on the evidence to quantify the arrears. That task, accordingly, is left to the Director. The father failed to provide court-ordered disclosure in a timely manner. This prevented the mother from having the child support adjusted promptly when the father’s income increased. The father failed to increase the child support voluntarily commensurate with his income. I consider the foregoing blame-worthy conduct, and the father’s failure to file at trial an up-to-date financial statement as ordered, in requiring the father to pay all child support arrears by way of a lump sum payment as specified in the order below

[140] Given the father’s failure to make full disclosure, the order below does include a provision allowing the mother to adjust support payments once full disclosure has been received.

[141] I would add that the father behaved unreasonably in failing to comply with existing financial disclosure orders and attending the trial with incomplete financial disclosure.

ORDER

[142] For reasons discussed above, I make the following final order:

1. Paragraphs 1 – 18 inclusive of the final order of McArthur J. dated November 22, 2019, and paragraphs 1 – 10 inclusive and paragraph 12 of the final order of Price J. dated April 19, 2020 are vacated. The aforesaid vacated orders are parenting orders.

2. In relation to child support, paragraphs 1, 2 and 6 of the final order of Gorman J. dated September 12, 2019 are vacated effective August 31, 2020, and paragraph 1 of the interim order of Mitrow J. dated December 23, 2021 is vacated effective January 12, 2022.

Decision-Making Responsibility and The Regular Schedule of Parenting Time

3. The mother shall continue to have sole decision-making responsibility for both children, J. and K. (“the children”). The primary residence for the children shall continue to be with the mother.

4. The father’s regular schedule of parenting time with the children shall be:

a. Every Tuesday from 3:30 p.m. until 6:30 p.m.; and b. Alternate weekends from Friday at 4:00 p.m. until Sunday at 6:30 p.m., to be extended until 6:30 p.m. Monday if the Monday is a statutory holiday.

Special Occasions and Vacations

5. The father’s regular schedule of parenting time shall continue to apply except to the extent necessary to ensure that each party has parenting time with both children as specified during the following occasions:

Father’s Day/Mother’s Day

a. The children shall be with the mother on Mother’s Day from 10:00 a.m.; b. The children shall be with the father on Father’s Day from 10:00 a.m. until 6:30 p.m.;

Christmas

c. In even-numbered years, the children shall be with the father from December 24 at 7:00 p.m. until December 26 at 2:00 p.m. and with the mother from 10:00 a.m. December 23 until 7:00 p.m. December 24; d. In odd-numbered years, the children shall be with the father from December 25 at 10:00 a.m. until December 26 at 2:00 p.m.; and with the mother from December 24 at 10:00 a.m. until December 25 at 10:00 a.m.

Vacation time during the summer

e. For 2023, the father shall have vacation time with the children consisting of one week in July and one week in August, with each week being from Friday at 4:00 p.m. until the following Friday at 4:00 p.m. For 2023, the father’s vacation weeks shall be as specified by him in accordance with the final order of McArthur J. dated November 22, 2019; f. Each year, commencing in 2024, each party shall have two weeks of vacation time with the children, being one week in July and one week in August, with each week being from Friday at 4:00 p.m. until the following Friday at 4:00 p.m.; g. Each year, commencing in 2024, each party shall advise the other, in writing, as to his or her choice of vacation weeks by March 1 of that year, failing which that party shall have no vacation time during that year. If there is a conflict as to the vacation times chosen, which the parties are unable to resolve by March 15, then the father’s choice shall prevail in even-numbered years and the mother’s choice shall prevail in odd-numbered years, and the party whose choice is superseded shall advise the other in writing as to his or her new vacation week choices by March 31; h. If a party plans to travel with the children during the vacation time, then the parties shall discuss whether any of the children’s planned therapy sessions should be cancelled or postponed, but the final decision shall be made by the party who is travelling;

Easter

i. In even-numbered years, the children shall be with the father from 10:00 a.m. Easter Sunday until 6:30 p.m. Monday, and with the mother from 10:00 a.m. Friday to 10:00 a.m. Easter Sunday; j. In odd-numbered years, the children shall be with the father from 10:00 a.m. Friday to 10:00 a.m. Easter Sunday, and with the mother from 10:00 a.m. Easter Sunday for the balance of Easter weekend.

Thanksgiving

k. In even-numbered years, the children shall be with the father from 2:00 p.m. Sunday until 6:30 p.m. on Thanksgiving Monday and with the mother from 3:30 p.m. Friday until 2:00 p.m. Sunday; and l. In odd-numbered years, the children shall be with the father from 3:30 p.m. Friday until 2:00 p.m. Sunday and with the mother from 2:00 p.m. Sunday for the balance of the Thanksgiving weekend.

Communication

6. All communications by the father, whether in-person, written, virtual or electronic with the mother, members of the children’s therapy team, the children’s physicians, dentists and all other healthcare providers and the children’s teachers, education assistants and school officials shall be brief, polite and respectful and shall deal only with the children and their needs. Without limiting the generality of the foregoing, the father shall not:

a. make negative remarks about the mother’s ability to parent, be rude, condescending or disrespectful to anyone; b. call the mother, or others, derogatory names; and c. threaten, harass or criticize members of the children’s therapy team, the children’s physicians and all other healthcare providers and the children’s teachers, education assistants and school officials.

7. Notwithstanding that paragraph 6 of this order is directed at the conduct of the father, the mother shall ensure that her own conduct meets all the expectations set out in paragraph 6.

8. All written communication between the parties shall continue to be via the application Our Family Wizard with the annual costs to be shared equally by the parties. Neither party shall allow or authorize any other person to use this application or have access to the parties’ emails, including receiving copies of emails, unless both parties consent in writing.

9. Given the importance of each party having information as to the children’s behaviour and activities while in the care of the other party,

a. at the beginning of each month (or more frequently if the parties desire), each party shall provide the other with a brief synopsis of the children’s behaviour and activities during the previous month; b. any of the children’s challenging behaviours, and the response to those behaviours shall be shared; c. all accomplishments and milestones achieved by the children shall be shared; and d. these communications shall be via the parenting application.

10. Neither party shall involve, in their adult conflict, or their litigation, any of the children’s therapy team members, physicians, dentists and other healthcare providers, teachers, education assistants or school officials.

11. Should either child be admitted to hospital, the party who brings the child to the hospital for medical attention shall notify the other party as soon as reasonably possible.

12. Neither party shall record or photograph the other party, including during parenting exchanges. Neither party shall criticize the other party in front of the children or allow any other person to do so.

13. Absent urgent concerns requiring immediate intervention, or an emergency, the parties shall engage in constructive communications with each other via the parenting application about any issues regarding the children prior to reporting the other to police or to a children’s aid society.

14. The parties at all times shall show respect for the privacy of the other. Neither party shall disclose to others by any method including social media, any documentary evidence or information obtained in this court case. Without limiting the generality of the foregoing, the mother shall not provide any documents or information from this court case to the parents of the father’s other children.

15. In the event of a dispute, except in the case of an emergency or urgent situation, neither party shall commence a court proceeding in relation to any parenting issues until such time as both parties have made genuine attempts, either in-person or through counsel, to resolve the issue in dispute through a process of alternative dispute resolution using all reasonably available resources including mediation. If a party initiates a court proceeding without complying with this paragraph, then the other party is at liberty to bring an urgent motion, prior to a case conference, requesting an immediate stay of the proceeding.

The Children’s Therapy Team

16. The mother shall be the primary contact for the children’s therapy team funded through the Ontario Autism Program or any other government funding source. The mother shall be responsible for engaging the therapy team and providing the therapy team with all necessary instruction, direction and consent forms.

17. The father shall not engage in any conduct that may affect, reduce or jeopardize the mother’s funding from any government or other funding source in relation to the children’s special needs.

18. The father’s communication and contact with members of the children’s therapy team is subject to the following conditions, which are in addition to the conditions in paragraph 6 of this order:

a. The father is prohibited from engaging in any communication by any method with any member of the children’s therapy team except as permitted in this paragraph; b. The father may forward a brief email to the supervisor of the children’s therapy team, with the email being limited to the father requesting permission to communicate with the children’s therapy team; c. The father’s email shall attach a copy of this order as signed and issued and shall indicate that this email is being sent on the authority of this order; d. The father may propose, in his brief email, reasonable suggestions as to the frequency and nature of his contact with the therapy team; e. The father’s email shall be copied to the mother; f. The father’s entitlement to communicate with the therapy team and the manner of communication with the therapy team shall be subject to the sole discretion of the therapy team and shall be subject to the permission given by the therapy team; g. The therapy team is at liberty, at any time, to change the method, nature, or frequency of communication or contact with the father; h. The father is prohibited from making requests for documentary or other information from the therapy team. Instead, the therapy team at its discretion may advise the father as to the information or documents that will be shared with the father; i. The father at all times shall be respectful of, and abide by, the limits of communication and contact with the therapy team, and the provision of documents and information, as specified by the therapy team; j. The father shall not attend at any therapy or other sessions involving the therapy team except as arranged and permitted by the therapy team; and k. If the father fails to follow the therapy team’s directive as to communication or contact, or if the father engages in any threatening, harassing or inappropriate communication as listed in paragraph 6 of this order, then the therapy team immediately may limit or terminate all contact and communication with the father and the therapy team shall advise the mother of same.

19. The principles applicable to each party in relation to the therapy team include:

a. Each party is permitted equally to take advantage of any parent coaching available through the therapy team and funded by the government as permitted by the therapy team; b. Each party is entitled to receive information about any individual therapists, but the therapists in their sole discretion may determine what information the parties are to receive, and neither party shall make demands for personal information about the therapists; c. Both parties shall be respectful of the children’s therapy team, understanding that the therapist’s time is to be used to provide services for the children; d. Where possible, the therapy team shall distribute any information to the parties at the same time; and e. As the primary contact, the mother shall ensure that the father stays up to date with all therapy services provided, and when, and any changes to those services.

20. If at any time the father engages in any conduct with the therapy team that contravenes paragraph 6 of this order, or violates the parameters of communication or contact as specified by the therapy team, or in any way jeopardizes the funding for the therapy team or the provision of services by the therapy team, then that shall constitute a material change in circumstances, and the mother shall be at liberty to commence a court proceeding on notice to the father, including:

a. commencing a motion to change and at the same time bringing an urgent motion prior to a case conference for interim relief to suspend, or limit, the father’s parenting time with both children, to obtain a restraining order regarding the father’s contact with the therapy team or such other interim order as may be appropriate; and b. bringing a motion for contempt.

Medical Appointments/Children’s School

21. The mother shall be responsible for taking the children to their medical and dental appointments except to the extent that the parties agree otherwise in writing.

22. The mother shall notify the father through the parenting application when an appointment has been scheduled with the children. Following the appointment, the mother shall provide the father with a brief overview of the appointment.

23. Should a doctor change or prescribe a new medication for the children, the mother immediately shall advise the father of the change through the parenting application and send a photo which indicates clearly the name of the medication, the dosage, how to administer the medication and what time of day it is to be administered. If any information about possible side effects is provided to the mother, this information shall be communicated to the father.

24. Both parties shall administer the children’s medication exactly as prescribed.

25. The children’s prescriptions shall be dealt with as follows:

a. The mother shall be responsible for filling the prescriptions for the children’s medication and she shall provide sufficient medication to the father to administer to the children during his parenting time; b. At parenting exchanges, the parties shall ensure that the medications follow the children, with the responsibility being on both parties to check to ensure the children’s medications are with the children; and c. The mother shall make best efforts to provide the medications to the father that are in the original containers, which the father shall return to the mother at the end of his parenting time. The container shall indicate clearly the name of the medication, the dosage, how to administer the medication, whether it needs to be taken with food, and the time of day it needs to be administered.

26. The mother shall provide notarized copies of the children’s health cards to the father.

Emergency Contacts/Access to Information

27. The mother shall ensure that both parties are named as the emergency contacts at the children’s school and with the children’s physicians, dentists and all healthcare providers including the children’s therapy team. Within 30 days the mother shall provide, through her counsel, documentary proof that she has complied with this provision.

28. On the presentation of a copy of this order as signed and issued, each party has a right to receive information regarding the children from the children’s teachers, education assistants, school officials, physicians, dentists and all healthcare providers. The parties shall execute promptly any direction or authorization that may be required to provide the requested information. This paragraph does not apply to the receipt of information or documents from the children’s therapy team, which instead is governed by paragraph 18 of this order.

29. In obtaining information, each party’s behaviour shall be governed by paragraphs 6 and 7 of this order, and in addition, neither party shall subject the children’s physicians, dentists, other healthcare providers, teachers, education assistants and school officials to harassment or overwhelming demands for information.

30. The parties shall adhere to any policy of the school board, the children’s physicians, dentists and all other healthcare providers, as the case may be, regarding the extent and type of information that will be provided and also the extent and type of communication that will occur with each party.

Parenting Order – Incidental Provisions

31. The parenting schedule contained in this order is subject to following terms and conditions:

a. The parties may agree in writing to the father having additional parenting time with the children; b. The parties shall act reasonably in making any necessary changes in writing from time to time in the children’s best interests to accommodate any changes in the plans of the parties or the children; c. Should either party need third-party care for a period of time that includes an overnight, that party may offer additional time to the other party rather than relying on third-party care. This paragraph is not intended to prevent the children from spending time with grandparents or close family; d. Each party shall give at least 48 hours advance written notice to the other, if a party plans to take the children outside the city of London, including details where that party and the children will be staying and for how long; e. The parties shall not discuss the court proceeding with the children or allow the children access to any information or documents regarding this court proceeding; and f. Each party may attend at any of the children’s recreational activities and school functions. This subparagraph does not apply to therapy sessions or activities involving the children’s therapy team.

32. Except for Tuesday exchanges at 3:30 p.m. which shall occur at the children’s school during the school year, all other exchanges shall occur at the Tim Horton’s at the corner Dalmagarry Road and Fanshawe Park Road West in the city of London. The parties may agree to another exchange location if either party moves to another location in the city of London. The parties are at liberty to agree in writing that the exchanges of the children shall take place at their respective residences.

33. The children’s principal place of residence shall not be changed from London, Ontario, except pursuant to a written agreement signed by both parties or court order.

34. Neither party shall travel with the children outside the province of Ontario without the written consent of the non-travelling party.

35. Each party shall keep the other party current as to all contact information including changes as to address and telephone number.

Child Support

36. For the period commencing September 1, 2020, the father shall pay to the mother for the children, J. and K., table amount of child support pursuant to s. 3(1)(a) of the Ontario child support guidelines in the following amounts:

a. The sum of $748 per month on the first day of each month commencing September 1, 2020 up to and including December 1, 2020 based on an income of $49,600; b. The sum of $828 per month on the first day of each month commencing January 1, 2021 up to and including December 1, 2021, based on an income of $54,300; c. The sum of $816 per month on the first day of each month commencing January 1, 2022 up to and including December 1, 2022 based on an income of $53,600; and d. The sum of $816 per month commencing January 1, 2023 and continuing monthly thereafter based on an income of $53,600.

37. The Director of the Family Responsibility Office shall calculate the total child support arrears owing by the father, and for the period commencing September 1, 2020, all child support payments made pursuant to previous orders shall be credited to the father’s child support obligation contained in paragraph 36 of this order.

38. All child support arrears that are owing as at the date of this order shall be paid by the father within 90 days.

39. Within 30 days of the date of this order, the father shall provide to the mother:

a. His T1 general income tax returns for 2020, 2021 and 2022 together with all slips and schedules; and b. His notices of assessment, including any notices of reassessment, for 2021 and 2022.

40. This order is without prejudice to the mother’s right to vary child support based on the disclosure provided pursuant to paragraph 39 of this order.

41. By June 15 of each year, commencing in 2024, the father shall provide to the mother, for the immediately preceding calendar year, his T1 general income tax return together with all slips and schedules and his notice of assessment, including any notice of reassessment. If the parties are unable to agree on the adjustment, if any, of child support based on the father’s disclosure, then either party is at liberty to bring a motion to change in relation to child support.

Costs

42. The issue of costs shall be dealt with by way of written submissions. Each party’s costs submissions shall be served and filed within 30 days. The written costs submissions are limited to three typed pages, double-spaced, minimum font 12 plus copies of any time dockets, bills of costs and offers to settle. All references to legal authorities shall be hyperlinked. The written costs submissions shall be filed with the court in the usual manner. If the issue of costs is settled, then instead within 30 days, the parties shall file a signed consent endorsement request confirming the costs settlement.

43. This final order is made pursuant to the Family Law Act and the Children’s Law Reform Act.

“Justice Victor Mitrow”

Justice Victor Mitrow

Released: July 17, 2023

COURT FILE NO.: FC 1174/17-01 DATE: 2023/07/17 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT BETWEE N: C. A. L. Applicant - and - J. R. Respondent REASONS FOR JUDGMENT MITROW J. Released: July 17, 2023

[1] Paragraph 13 of the order of McArthur J. dated November 22, 2019 states as follows: “Should any future actions be initiated or undertaken by the Respondent that jeopardize the children’s special needs autism funding or result in services to the children from any source, including doctors, being disrupted or that risk services/funding being restricted or stopped, his access to be rescinded completely.”

[2] This email does not show the year, but Dr. Hall testified it was in 2022.

[3] Exhibit 11

[4] Exhibit #23

[5] Exhibit H – mother’s amended final draft order filed with written closing argument. Exhibit I – father’s final amended draft order filed with written closing argument.

[6] See exhibit 1, trial record, pages 4 and 12 (mother’s motion to change)