ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Campbell William MacGougan
Genevieve M. Samuels, for the Applicant/Responding Party
Applicant/Responding Party
- and -
Candace Dianne Bill
P. Allen Skuce, for the Respondent/Moving Party
Respondent/Moving Party
HEARD: March 6, 7, 8, 9, 10; April 12, 13, 2023
T. PRICE, J.
Overview
1The parties married on August 7, 2009, separated on May 17, 2019 but continued to cohabit until March 2020, and were divorced in October 2020.
2On February 14, 2020, with the consent of both the Respondent/Moving Party, Candace Bill (hereinafter, Ms. Bill) and the Applicant/Responding Party, Campbell MacGougan (hereinafter, Mr. MacGougan), Justice Scott Campbell made a final parenting order under the Children’s Law Reform Act1 (“CLRA”) pertaining to their children, C1, a male, then 8.5 years of age who will turn 12 in August 2023, and C2, a female, then 6.5 years of age, who will turn 10 in September 2023.
3Under the terms of the order, the parties had “joint and shared custody of the children.” The children were to be in the care of the parties on an alternating weekly basis from Mondays at 3:30 PM, subject to a Thursday/Friday overnight granted each week to the parent not having the children in their care that week. The order also contained terms which adjusted the schedule depending on what shift Mr. MacGougan was working while the children were to be in his care.
4At the time that Justice Campbell made his order, the parties continued to reside in the matrimonial home. When, by agreement, Mr. MacGougan vacated it in March 2020, the parties put into effect the order’s parenting arrangements.
5The arrangements proceeded without major issues until August 17, 2020, when C2 refused to leave Ms. Bill’s residence and go with Mr. MacGougan. C1, on the other hand, has never refused to attend for his father’s parenting time.
6When C2’s resistance continued over several ensuing weeks, in September 2020 Mr. MacGougan brought a contempt motion against Ms. Bill, alleging that she was willfully failing to comply with Justice Campbell’s order. Ms. Bill responded to the motion.
7On December 7, 2020, as C2’s resistance to visiting with her father continued, Ms. Bill commenced this Motion to Change. In it, she sought sole decision-making responsibility for both children, an order reducing Mr. MacGougan’s parenting time with C2 to alternate Saturdays for four hours selected by Ms. Bill, plus such additional time as the parties might agree, and child support.
8Mr. MacGougan filed two Responses to Ms. Bill’s Motion to Change.
9In the first, dated December 15, 2020, he requested that Ms. Bill’s Motion to Change be dismissed and that a police enforcement clause be added to the terms of Justice Campbell’s final order.
10In the second, dated November 4, 2022, for which leave was granted, Mr. MacGougan sought other changes to the order of Justice Campbell, including: that he be granted sole decision-making responsibility for both children; that there be some adjustments to the week-about parenting schedule; that child support be determined pursuant to section 9 of the Child Support Guidelines; and that family therapy which had previously been ordered on an interim basis be continued. Other requested changes will be discussed later.
11With leave, Ms. Bill filed a Reply to Response to Motion to Change, dated November 16, 2022, in which she challenged the changes sought by Mr. MacGougan.
Issues
Issue #1(a): Has there been a material change in circumstances with respect to either parenting time or decision-making responsibility that affects or is likely to affect the best interests of C2?
Issue #1(b): If there has been a material change in circumstances with respect to either parenting time or decision-making responsibility that affects or is likely to affect the best interests of C2, what change or changes, if any, to Justice Campbell’s order should be made in her best interests?
Issue #2(a): Has there been a material change in circumstances with respect to either parenting time or decision-making responsibility that affects or is likely to affect the best interests of C1?
Issue 2(b): If there has been a material change in circumstances with respect to either parenting time or decision-making responsibility that affects or is likely to affect the best interests of C1, what change or changes, if any, to Justice Campbell’s order should be made in his best interests?
Law – Material Change in Circumstances
12Because Justice Tobin has already determined that the original order made by Justice Campbell was made pursuant to the CLRA, the parties agree that the Motions to Change were brought under s. 29 of that statute.
13Under s. 18(1) of the CLRA, a “parenting order” is “an order…respecting decision-making responsibility or parenting time with respect to a child.” Thus, a parenting order consists of one or both of two different components.
14Under s. 29(1) of the CLRA, I am prohibited from making an order “that varies a parenting 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.”
15I interpret the inclusion of the words “the child who is the subject of the order” in s. 29(1) to mean that, before I can make any order varying either component of the parenting order in this case, I must consider, for each of C2 and C1, individually, whether there has been a material change in circumstances with respect to either decision-making responsibility or parenting time “that affects or is likely to affect the best interests of” that child. If there has been, I can consider what change or changes to make, if any, for that child. Thus, as I interpret the section, the process involves an individual review and analysis for each child.
16In Roloson v. Clyde, 2017 ONSC 3642, Justice D. Chappel noted that the principles articulated by the Supreme Court of Canada as being applicable in a variation proceeding under the Divorce Act apply equally to a variation proceeding under the CLRA, and more extensively discussed what was, and what was not, a material change in circumstances. Justice Chappel wrote, in part:
47 … The "material change in circumstances" requirement set out in section 29 of the CLRA is similar to the threshold requirement to change a custody and access order set out in section 17(5) of the Divorce Act, R.S.C. 1985, c. 3 (2nd. Supp.) as amended. The Supreme Court of Canada held in Gordon that as under the CLRA, the change required to justify a variation of a custody and access order under the Divorce Act must be "material" (at para. 10). The court…highlighted that the judge hearing a variation proceeding cannot simply substitute their discretion for that of the judge who made the existing order. Rather, they must assume that the existing order was correct and consider only the changes in circumstances since the order was made…Accordingly, from an evidentiary standpoint, the court should consider only a limited amount of evidence predating the existing order, for the sole purpose of determining whether a material change in circumstances has been established...
48 The Supreme Court of Canada held in Gordon that a change in circumstances will only be considered as "material" for the purposes of a custody and access variation proceeding if it has altered the child's needs or the ability of the parties to meet those needs in a fundamental way (at para. 12). In addition, the requirement of a "change in circumstances" clearly contemplates developments that have transpired since the existing order was made. On this point, the Supreme Court of Canada held in Gordon that the change relied upon should represent "a distinct departure from what the court could reasonably have anticipated in making the previous order" (at para. 12). The question that the court must consider on a variation proceeding is whether the previous order might have been different had the circumstances now existing prevailed earlier. Having regard for all of these considerations, the court concluded that in order to satisfy the threshold "material change in circumstances" test in a custody and access variation proceeding, the moving party must establish the following:
a. The change must have altered the child's needs or the ability of the parent to meet those needs in a fundamental way.
b. Would the previous order have been different if the circumstances now existing prevailed earlier?
c. Does the change represent a distinct departure from what the court could have anticipated in making the previous order?
49 The case-law that has addressed the meaning of the phrase "material change in circumstances" in the context of child and spousal support variation proceedings has also established that a change will only be considered "material" if it is significant and long-lasting…Trivial, insignificant or short-lived changes will not justify a variation…These principles apply equally to the threshold test in a custody and access variation proceeding. The preliminary threshold test is aimed in part at ensuring that the parties do not resort to litigation whenever any change occurs, however minimal…Not every circumstance, event or mistake by a parent that detrimentally affects a child will be considered a material change in circumstances for the purposes of a variation application. As Gray, J. stated in Kerr v. Easson, 2013 ONSC 2486 (S.C.J.), at para. 62, aff'd 2014 ONCA 225 (C.A.), "[p]arents are not perfect and they will make mistakes. The court will not assume jurisdiction to correct every mistake in the guise of a material change in circumstances." [some citations omitted]
Law – Result of Finding There to Have been a Material Change in Circumstances
17Counsel agree that, if a material change in circumstances is found to have occurred,
a) “both parties bear the evidentiary onus…of demonstrating where the best interests of the child lie, and there is no legal presumption in favour of maintaining the existing” parenting order. [Bubis v. Jones 2000 CanLII 22571 (ON SC), [2000] O.J. No. 1310 (S.C.J.)]; and
b) “[t]he judge on the variation application must consider the findings of fact made by the first judge as well as the evidence of changed circumstances to decide what [parenting order] now accords with the best interests of the child.” [Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.J. No. 52 at para. 17)
Conclusions
18For the reasons that follow, I have reached the following conclusions:
Issue #1(a): There has been a material change in circumstances that affects or is likely to affect the best interests of C2, arising from her resistance to attending parenting time with Mr. MacGougan.
Issue #1(b): Because of the material change in circumstances that affected or is likely to affect the best interests of C2, she will be subject to a new parenting order, the terms of which are set out in Schedule “A” to these Reasons.
Issue #2(a): There has been no material change in circumstances with respect to either parenting time or decision-making responsibility that affects or is likely to affect the best interests of C1.
Issue #2(b): Because there has been no material change in circumstances with respect to either parenting time or decision-making responsibility that affected or is likely to affect the best interests C1, there is no change to the order of February 14, 2020 as it pertains to him. However, certain administrative parenting clauses pertaining to both children have been added to Schedule “A,” as has a clause permitting the parties to agree on amendments to the original order to make the clauses that pertain to C1 more closely align with those that pertain to C2.
Background2
19The following narrative details the facts as I have found them to be, based on the evidence of the parties and their witnesses. By either footnote or italicization, I sometimes add information derived from the evidence to expand on or give context to the narrative. At appropriate points I also comment on the witnesses and their evidence, and make findings of credibility, as necessary.
Using Facts Occurring Before the Order Under Review
20As Justice D. Chappel noted in Roloson v. Clyde, 2017 ONSC 3642, on a Motion to Change, a court can “consider…a limited amount of evidence predating the existing order, for the sole purpose of determining whether a material change in circumstances has been established.”
21In this case, I was provided with limited evidence of events predating Justice Campbell’s order. I address only a few events.
Parenting Time - C2
Events Occurring Before the February 14, 2020 Final Order of Justice Campbell
22On September 17, 2019, which would have been shortly after the parties’ separation, Mr. MacGougan took C2 to her family physician, Dr. Fox. According to his notes, Mr. MacGougan wished to “discuss [her] mental health” as she was “not dealing well with [her] parents’ separation.” Amongst listed behavioural changes noted were anxiety, with C2 becoming “clingy” with Ms. Bill when she left for work. Dr. Fox recommended counselling, although the notes do not indicate who should have been involved in the counselling.
23On December 10, 2019, C2 was again taken to see Dr. Fox, although on this occasion the notes indicate that both parents were present. The purpose of the visit was to follow up with respect to C2’s mental health. She was screened for “child anxiety related disorders.” The recorded score to a series of questions answered by her indicated that the screen was negative for an anxiety disorder. As before, Dr. Fox recommended counselling.
24Dr. Fox provided a referral to Dr. Elizabeth Thornley to discuss therapy for C2. Mr. MacGougan requested the referral because, he claimed, C2 was concerned about Ms. Bill sleeping with her. Ms. Bill, while acknowledging that she co-slept with C2, testified that they had begun doing so early in the parties’ separation, when Mr. MacGougan moved into C2’s bedroom. Dr. Fox recommended that Ms. Bill not sleep with C2.3
Patrycia MacGougan
25Ms. MacGougan is the former sister-in-law of Ms. Bill. The majority of her evidence pertained to statements made by Ms. Bill during the period when the parties were going through their separation. She last spoke, briefly, to Ms. Bill in the summer of 2021, as they no longer have a relationship.
26Ms. MacGougan spoke of Ms. Bill growing unhappy in her marriage and making negative comments about the MacGougan family.
27She testified that she had heard Ms. Bill either tell the children directly or say in their presence more than once during this period that their father is “stupid.” She told Ms. Bill that, while it was okay for her to think such things, she should “not put ideas into the children’s heads.” (Ms. Bill, in her reply, specifically denied ever calling Mr. MacGougan “stupid” in front of the children, saying that Patrycia MacGougan’s evidence to that effect was “false.”)
28She also indicated that Ms. Bill had commented negatively about Mr. Bill’s parenting skills, noting specifically that he was unable to cut the children’s nails.
Events Occurring After the Final Order of February 2020
Interactions between the Parties and C2 Between March and August, 2020
29As I have noted, after Mr. MacGougan vacated the matrimonial home in March 2020, the parties put into effect the agreed-upon parenting arrangements. The children’s transitions between the parents occurred either at school or at the parties’ homes, where the receiving parent would pick up the children to begin that parent’s week of parenting time.
30When the children were in Mr. MacGougan’s care, Ms. Bill and C2 communicated by video calls and instant messaging. C2 used a tablet. Many of their messages involved each telling the other how much she was loved and missed. Several messages were adorned with emojis.
31Mr. MacGougan recalled his parenting time during the period between March and August 2020 as having generally gone well. However, beginning in June 2020, both Ms. Bill and Mr. MacGougan began to develop concerns about C2’s behaviour around visits with her father.
32According to Ms. Bill, C2 began to express resistance to visiting with her father, crying, or saying that she did not want to go to his residence. She went, however, after some encouragement from Ms. Bill. Ms. Bill did not tell Mr. McGougan of the resistance that she was encountering at the time, justifying her silence on the basis that she had succeeded in overcoming C2’s resistance.
33According to Mr. MacGougan, C2 would often call Ms. Bill from his residence and tell her that she missed her and wanted to sleep with her, then go to bed without any problem.
34On June 13, 2020, C2’s communications with her mother were especially emotional. After C2 sent a text to Ms. Bill containing seventeen emojis, fifteen of which were of crying faces, she and Ms. Bill spoke via video. C2 was crying during their call. According to Ms. Bill, she told C2 that she was fine at her father’s residence and that she should have a good time there. Ms. Bill also assumed that Mr. MacGougan would have known that C2 was crying as they spoke that day because he was caring for her at the time.
35After the call, Ms. Bill texted C2, writing, “don’t cry” and “momma loves you.” C2 responded, telling Ms. Bill that she, too, loves her. She followed that with a series of fifty-seven emojis, forty-seven of which were faces crying excessively, two of which were faces crying slightly, and eight of which depicted faces bearing unhappy expressions. Ms. Bill responded with four emojis, each of a face crying slightly. C2 replied with six emojis, each depicting unhappiness.
36Ms. Bill then wrote, “Oh Bungy.4 You are so sad. Momma is sorry I didn’t get to have you more.” This was followed by a text message in which C2 wrote to her mother that she loves her “lots and lots,” the text being accompanied by thirty emojis of a face crying excessively. Ms. Bill responded that she, too, loves C2 “lots and lots.”
37On June 15, 2020, C2 told Ms. Bill that she was happy to be seeing her that day, to which Ms. Bill responded with a “thumbs-up” emoji and the words, “Me too.”
38On June 28, 2020, Ms. Bill texted C2, telling her that she missed her. She then sent an emoji of some cartoon creature with a sad face. She followed that with another text containing two heart emojis and the words “Love you!”
39When Ms. Samuels questioned her about the texts, Ms. Bill said that she did not think that her messages put pressure on C2 or made her feel guilty. She thought that C2 likely shared similar feelings. She also could “not say” that her messages fed into C2’s growing resistance, since she was of the view that they neither helped with nor hindered C2’s difficulties. Ms. Bill further denied putting undue stress on C2, pointing out that the messages were exchanged over a period of months.
40By the end of June 2020, according to Mr. MacGougan, C2 was repeatedly saying that she wanted to go home to sleep with her mother.
41Because he did not know how to address C2’s requests, and due to his concerns about the messages exchanged between C2 and her mother, in July 2020 Mr. MacGougan scheduled a therapy appointment for July 22, 2020 with Dr. Thornley.5 He did so without informing Ms. Bill, justifying having done so because he “felt” he should “get ahead of [his] concerns.”
On July 6, 2020, Mr. MacGougan received an email from Dr. Thornley’s staff informing him that the appointment had been cancelled because Ms. Bill had withdrawn her consent for C2 to be treated by Dr. Thornley. Ms. Bill said that she had revoked the consent for the appointment with Dr. Thornley because she understood the parties were to schedule appointments jointly, and that had not been done in this instance.
Observations by Others of C2 in Mr. MacGougan’s Care Prior to August 2020
42While several witnesses testified about the relationship that they observed between C2 and her father, the evidence of all but two detailed observations made beginning in late summer, 2021. Their evidence will be described later.
43Patrycia MacGougan testified that she saw C2 with her father in or around March 2020. She said that C2 played with her father and climbed on him. She stated that they appeared to have a normal, happy relationship.
44She further testified that she had heard C2 tell her father a couple of times during this same period that he was “stupid.” She also reported that she once heard C2 tell her father, after he tried to assist her when she had hurt her knee at a cottage, “you don’t know how to take care of me, dad. You don’t know how to do anything right.”
45Catherine MacGougan, Mr. MacGougan’s mother, provided childcare for C2 and her brother when Mr. MacGougan worked during the months after he vacated the matrimonial home in March 2020. She described C2 as having been extremely excited to be with her father when he moved into his own residence.
46She further testified that “after several months” she observed changes in C2’s attitude, including acting-out towards her father, and speaking to him disrespectfully. She said that C2 would “cry in tantrum fashion” after being with her mother. She indicated that, after about an hour of being with her father, C2 would revert to “her happy self.”
47Like Patrycia MacGougan, Catherine MacGougan acknowledged no longer having a relationship with Ms. Bill.
Events of August 17, 2020
48On Monday, August 17, 2020, C1 exited Ms. Bill’s residence and handed Mr. MacGougan a drawing by C2 which depicted the faces of the parties. Mr. MacGougan’s drawn face was unhappy. Ms. Bill’s was smiling. Mr. MacGougan’s face was encircled, with an “X” drawn over it. The word “No” was written below it. Under Ms. Bill’s face was written the word “Yes,” accompanied by three checkmarks. Written on the drawing were the words “I im” (sic) “not coming.” The name “C2'' was written on the back. Ms. Bill testified that she had not seen the drawing before it was given to Mr. MacGougan.
49On receiving the drawing, Mr. MacGougan went to the door of Ms. Bill’s residence and asked C2, who remained in the house, what was going on. C2 told Mr. MacGougan that she was not going with him.
50After unsuccessfully attempting for about 15 minutes to persuade C2 to leave with him, Mr. MacGougan asked Ms. Bill, more than once, for support. Ms. Bill told him that she behaved similarly when, as a child, she was supposed to visit her father. Their discussion was described as “heated.”
51After further efforts to persuade C2 to leave with him and C1, Mr. MacGougan called the police for assistance. After the officers told Mr. MacGougan that he would have to take the matter back to Family Court, he and C1 left without C2.
Events Following August 17, 2020
52Before attempting to pick up C2 on August 18, 2020, Mr. MacGougan sent an email to Ms. Bill about the events of the day before. He asked Ms. Bill to be supportive of C2 going with him when he arrived to retrieve her. He also informed Ms. Bill that he did not wish to engage in conflict in front of the children and urged her to follow the parties’ agreement by having C2 go with him as “this is what we both decided was best for our kids.”
53In her responding email, Ms. Bill disavowed any belief that their agreement was best for the children. She wrote that she felt “cornered” when the agreement had been concluded. She further denied either telling C2 not to go with Mr. MacGougan the day before or telling her that she had a choice as to whether or not she went with him. She wrote that C2, through her actions, was expressing her views about the requirement that she spend the time with her father mandated by the court order. She claimed that C2 had been struggling with the transitions and was uncomfortable with the schedule “from the beginning.” She also informed Mr. MacGougan that C2 had said that she would not be going to his residence that day, and that she would not “drag [C2] outside.”
54Despite Ms. Bill’s response, Mr. MacGougan again attended her residence on August 18, 2020. He again tried unsuccessfully to persuade C2 to leave with him but she told him she was not going with him. Ms. Bill was not present as he spoke with C2. When he called for Ms. Bill to come to the door, she appeared but said nothing to C2 about having to leave with her father. After Mr. MacGougan tried a few more times to persuade C2 to leave with him, he again departed, alone.
55These efforts were repeated each day that week when C2 was to be in Mr. MacGougan’s care. He would spend some time talking to C2 through the door, then depart without her.
56He and C2 did go to a local park for a brief visit, however, on at least one occasion that week. According to Mr. MacGougan, when C2 told him that she wanted to go home on that occasion, she also told him, without explanation, that she did not trust him.
57As with her repeated refusals to attend parenting time with Mr. MacGougan, C2’s failure to provide any explanation for her negative views about him became part of a pattern.
58The following week, when Mr. MacGougan again experienced the same result with C2 when he attended Ms. Bill’s residence to retrieve her for her midweek overnight visit, Mr. MacGougan spoke to Ms. Bill about the situation, pointing out her failure to encourage C2 to go with him. He testified that Ms. Bill was “pretty angry” right from the start and told him that she was advocating for C2. She again told him that because she had behaved the same way when her parents separated, she knew how C2 was feeling.
59At some point during the first two weeks after C2 first refused to go with him, Mr. MacGougan asked Ms. Bill about the two of them attending therapy together. Mr. MacGougan testified that Ms. Bill flatly refused to do so, while Ms. Bill testified that she did not recall Mr. MacGougan making the proposal. In any event, the parties did not seek out a counsellor or therapist at that time.
60Mr. MacGougan had also planned a vacation with the children for August 30, 2020. C2 had initially told him she would go. However, when the day arrived for them to leave for the vacation, C2 refused to go. Mr. MacGougan was able to arrange on short notice for one of C1’s friends to go in C2’s place, so the vacation proceeded without C2.
Mr. MacGougan’s Contempt Motion
61On C2’s birthday in September, 2020, Ms. Bill was served with a Notice of Contempt Motion brought by Mr. MacGougan. The alleged contempt consisted of Ms. Bill not sending C2 for parenting time with Mr. MacGougan.
62While Ms. Bill testified that the motion was “the worst thing that had ever happened to her,” she responded to it. She also testified that, while the motion was pending, its existence affected how she reacted to events in this matter.
63The motion was ultimately withdrawn, on consent, in February, 2021.
Attempted Public Location Transitions
64When C2’s resistance to going with her father continued, the parties agreed to try transitions at some other locations. On September 5, 2020, they attempted to exchange C2 at Walmart. That exchange was intended to have C2 go with Mr. MacGougan so that she could celebrate her and her brother's birthdays at the paternal grandparents’ home. The effort failed, as did a proposed exchange at a local park in St. Thomas the next day.
65The parties had different descriptions and interpretations of what had occurred at Walmart. According to Mr. MacGougan, C2 arrived, crying, with Ms. Bill. When he tried to take charge, Ms. Bill said she would not leave C2 in such an emotional state. He said that when they left the store and headed toward his truck, Ms. Bill and C2 walked apart from him and C1, with Ms. Bill rubbing C2’s back. He heard no words of encouragement spoken to C2 by Ms. Bill. When they arrived in the parking lot, Ms. Bill and C2 were “clutching tightly.” Mr. MacGougan told C2 that he would take her back to her mother’s home when the party was over. She still refused to go. Ms. Bill, on the other hand, said that the Walmart exchange failed because C2 was holding on to her tightly, rather than vice versa, as Mr. MacGougan suggested. She said that she told Mr. MacGougan to pull C2 off of her and just leave, but he failed to do so.
66Ultimately, Mr. MacGougan made a video call to C2 from his home that evening and later brought her some cake and a present.
Attempted School-Based Transitions
67C2’s refusal to attend with her father for parenting time on August 17, 2020 began a pattern of refusals that became increasingly strident and physical. As a result, before school resumed in September 2020, Mr. MacGougan informed the principal of the children’s school that there may be problems with C2’s transitions at school.
68He was right to have done so. Once the school year began, it quickly became apparent that getting C2 to enter the school on the days that she was to transition into Mr. MacGougan’s care at the end of the day was going to be difficult. If Ms. Bill could get C2 into the car to be driven to school, she often refused to get out at the school. Ms. Bill was sometimes compelled to use physical means to remove C2 from the car. On multiple occasions, Ms. Bill contacted Mr. MacGougan for assistance in removing C2 from her vehicle at the school. He would leave work and drive to the school to try to help.
69School staff sometimes also assisted. That ended, however, on November 25, 2020. On that date, the parties and the school principal were scheduled to participate in a telephone conference call to discuss C2’s problematic school transitions and other ways that the issue might be addressed. The call was abruptly terminated when Ms. Bill ended her participation in the discussion.6 Later that day, the school principal wrote an email to both parties, advising that staff would no longer intervene with C2 if she refused to enter the school. She suggested that alternative arrangements be made about transitions, including having C2 take the school bus, using someone other than Ms. Bill to drop off C2 at school, or switching the transition day to a weekend.
70According to Mr. MacGougan, on several of the occasions when he would arrive at the school to assist, Ms. Bill simply stood by in silence, leaving him to try to remove C2 from her vehicle.7
71Ms. Bill denied failing to encourage C2 to visit her father. She explained that Mr. MacGougan was not always present when she spoke to C2, as she often spoke to her about this issue when driving her to school. While Mr. MacGougan testified that he did not doubt Ms. Bill’s evidence that she spoke to C2 about spending time with him, he said that he had never seen or heard her do so.
Ms. Bill’s Reported Efforts to Have C2 Go with Mr. MacGougan
72According to Ms. Bill, one way that she tried to persuade C2 to go with her father was to impose a consequence on her each time that she refused to go. Consequences included taking away C2’s tablet, not allowing her to watch television, and forcing her to do homework. Her goal, she said, was to make C2’s time at her home as boring as possible.
73Ms. Bill’s younger sister, Mallory McEachen, testified that she had observed Ms. Bill’s efforts to promote C2 going to see her father included marking a calendar with the days that C2 was to be in her father’s care, including Mr. MacGougan’s plans for any day, if known, so that C2 would be informed in advance, and speaking to C2 encouragingly about the importance of visiting her father, telling her that she would have a great time visiting with him.
Incident of November 27, 2020
74The events of this day occurred not at the school but at Ms. Bill’s residence. They were witnessed by Ms. Bill’s older sister, Jodi Schultz, who had been residing with Ms. Bill and the children since September, 2020 while awaiting the construction of her own home.
75According to Ms. Schultz, she was in the basement that morning when she heard C2 crying and screaming, “I don’t want to go.” It was not the first time that she had heard such screams from C2.
76Because Ms. Bill had a flat tire that morning, Ms. Schultz drove her and the children to school in her vehicle. Despite her telling C2 en route that that it is important to go both to school and to her father’s, C2 continued to scream and cry.
77When they arrived at the school, C1 got out of her car and went into the school without any difficulty. C2, on the other hand, gripped and held on to the headrest so hard that her knuckles turned white. She could not be persuaded to leave the car. Those efforts continued for about 10 to 15 minutes. Eventually, Ms. Schultz, Ms. Bill and C2 left the school. Before they did, Ms. Bill called Mr. MacGougan to tell him C2 would not be going to school.
78Mr. MacGougan offered to come to the house to assist and Ms. Bill agreed. When he arrived, Ms. Bill and Ms. Schultz backed off and sat in the living room.
79Mr. MacGougan told C2 that he loved her and that she had to go to school. C2 refused and continued to scream. Eventually, C2 ran upstairs with Mr. MacGougan in pursuit. C2 continued to scream while upstairs, before running back down to Ms. Bill, who hugged her but said nothing. C2 ran to hide in a corner. When he asked Ms. Bill for her assistance, she walked away.
80Ms. Schultz told C2 that she needed to go to school, then recommended that C2 be (physically) picked up. Ultimately, C2 ended up holding onto the banister so tightly that Mr. MacGougan had to pry her fingers free of it. As he did, C2 bit him, something that Mr. MacGougan said she had never done before.
81When Mr. MacGougan finally got C2 out of the house and put her in the truck, she tried to remove the seatbelt. When he directed her not to do so, she desisted. He then drove her to school, dropping her off without issue.
82At the end of the school day, C2 went to his residence for the weekend, without incident.
83Ms. Schultz testified that she had never observed C2 throw a “tantrum” like the one she observed this day, including on other days when she had said that she did not want to go with Mr. MacGougan. She also said that, during the three months that she lived with Ms. Bill and the children, she neither heard Ms. Bill speak negatively of Mr. MacGougan nor observed her engaging in any behaviour which she would consider to be counterproductive to C2 visiting with her father.
84Ms. Bill’s Motion to Change followed the incident of November 27, 2020 by ten days.
Christmas 2020
85At Christmas, 2020, Ms. Bill and C2 attended Mr. MacGougan’s residence for gift opening. Once that was completed, C2 said that she wanted to leave, so she and Ms. Bill did. When cross-examined about this event, Ms. Bill attributed C2’s request for a quick departure to the events of November 27, 2020.
Involvement of Jenna Hill
86Jenna Hill is a former Child Protection Worker who now provides personal counselling, one aspect of which focuses on supporting separated parents with the management of any problematic post-separation behaviours displayed by their children. The program operates using a “child-centered approach” in addressing issues.
87Ms. Hill first became involved in August 2020, when she was contacted by Ms. Bill, who had set up an appointment for play therapy for C2.
88The parties attended together for an intake session on September 12, 2020. According to a report from Ms. Hill, Ms. Bill “identified the primary concern as C2 refusing to spend time with her father during parenting time.”
89Nina Haas, another counsellor, was assigned to be C2’s therapist. Ms. Hill’s role became one of supervising Ms. Haas.
90Ms. Haas did not testify at trial, as Ms. Hill wanted to avoid her having to do so, testifying that many therapists prefer not to be involved in litigation. Because Ms. Hill’s written report was, in large measure, based on the therapy notes of Ms. Haas, I allowed into evidence only a redacted version of the report, omitting the information from Ms. Haas, whose absence precluded cross-examination by Mr. Skuce, counsel for Ms. Bill.
91On November 3, 2020, Ms. Bill sent an email to Jenna Hill and Nina Haas expressing some concerns about C2. On November 4, 2020, Ms. Hill responded in an email that included observations made of C2 by Ms. Haas.
92That response led Ms. Bill to believe that Ms. Hill had concluded that she was the cause of C2’s resistance to seeing her father. Notwithstanding, Ms. Bill kept C2 in therapy with Ms. Haas at that time.8
93Ms. Bill’s conclusion about Ms. Hill’s view of her, however, negatively affected their relations thereafter. Her feelings were amplified following a telephone conversation between the two. Ms. Bill described the conversation as being “about other options.” In her redacted report, Ms. Hill referred to the phone call, describing it in more detail, and more negatively, than Ms. Bill did at trial. Ms. Hill wrote, in part, that Ms. Bill:
a) “was not receptive to suggestions with respect to not allowing C2 to sleep in her bed, or to ensure that C2 had a positive view of her father;”
b) “spoke negatively about Mr. MacGougan during their marriage and stressed that he was not very involved with the children prior to their separation;”
c) “would not participate in any co-parenting services or attend sessions with Mr. MacGougan because he had brought a contempt motion against her;”
d) “stated it was not her responsibility or her problem that C2 did not want to see her father, [feeling that] C2's views and wishes not to see him [should] be respected;” and
e) “stated she only insisted C2 attend because the court was making her and because of the contempt motion.”
94On December 23, 2020, after having also spoken with Mr. MacGougan by telephone, Ms. Hill wrote both parties telling them that it was her and Ms. Haas’ “assessment” that C2's struggles were in response to their conflict.
95Ms. Hill later recommended family therapy and that the parties obtain help with co-parenting to assist with C2. While Mr. MacGougan was open to the proposal, Ms. Bill declined Ms. Hill’s suggestion. She testified that she did so because of her belief that Jenna Hill faulted her for C2’s resistance to visiting her father.
Some Parenting Time Visits Occurring in Early 2021
96C2 sometimes went to her father’s residence beginning in early 2021, after school re-opened from one of the pandemic lockdown periods. On many of those occasions, however, she asked to be taken back to her mother before the end of Mr. MacGougan’s scheduled parenting time. The parties cooperated with respect to returning her early to Ms. Bill’s care. Jenna Hill suggested this process to Mr. MacGougan, telling him that returning C2 to her mother early at her request would demonstrate to C2 that she could trust him. While Ms. Bill testified that she spoke positively with C2 about her visits on returning, Mr. MacGougan said that, upon C2’s arrival at her mother’s home, she immediately entered and closed the door, leaving him with no opportunity to hear what Ms. Bill asked her or said to her about her visit.
Involvement of the Office of the Children’s Lawyer
97On November 20, 2020, Justice Rady ordered that the matter be referred to the Office of the Children’s Lawyer (hereinafter, the OCL). At that time, because the only matter before the court was Mr. MacGougan’s contempt motion, the OCL declined to become involved.
98After Ms. Bill’s Motion to Change was commenced, by joint request of the parties I made another OCL referral order on February 12, 2021. The OCL appointed Marsha McHardy to conduct a clinical investigation pursuant to s.112 of the Courts of Justice Act.
99Ms. McHardy’s report was completed and filed with the court on July 5, 2021. It included the following information:
a) Mr. MacGougan reported that “both he and Candace have never been good about rules and discipline with the children, which he said had led to behavioural problems;”
b) Both parties agreed that communications between them are not positive, helpful, or constructive, each blaming the other for the problem;
c) Mr. MacGougan denied Ms. Bill’s assertion that he was neither present nor involved with the children’s lives when they were together, thereby causing C2 to not be close to him;
d) Mr. MacGougan reported that when Ms. Bill was planning to separate, she “began saying negative things [about him] to the children, such as “dada is stupid” and when C2 speaks negatively about [him], or says she hates him, Ms. Bill does not voice any concern to C2 about her negative language. Mr. MacGougan is concerned her negative talk has influenced C2.” In response, Ms. Bill “said she often speaks to C2 after she says negative things about her father and tells her not to say unkind things, but [he] is not present when she talks to C2;”
e) Ms. Bill told Ms. McHardy that when she and Mr. MacGougan separated, a separation which she initiated because she “could no longer continue in the marriage,” having “[fallen] out of love” with Mr. MacGougan, she was “really angry;”
f) Mr. MacGougan reported that, following the parties’ separation, Ms. Bill removed and deleted from the computer many pictures containing him, took all the pictures in the house while he was there, changed her work schedule so that he was never home alone with the children, and tried many times to have him sign agreements that did not include shared parenting;
g) Ms. Bill found it hard to reconcile the fact that, while Mr. MacGougan “chose work over the children” prior to the separation, he was now putting the children first. Ms. Bill told Ms. McHardy that Mr. MacGougan “needs to look at the root cause and how his behaviours have contributed to the poor father-daughter relationship.”
h) Ms. Bill claimed that the week-about schedule did not work for C2 because she was “too upset and has severe separation anxiety when it comes time to go with” her father.
i) Mr. MacGougan believed that C2’s unwillingness to sleep at his home was related to her regularly sleeping with Ms. Bill after the parties had separated.
j) Mr. MacGougan was convinced that Ms. Bill was talking to C2 about adult issues, citing C2 telling him on one occasion that she wished she had a lawyer and will get one when she turns 13 years old and, on another occasion, that she wished her mother had won more time in court.
k) That Ms. Bill labelled as “untrue” Mr. MacGougan’s report to Ms. McHardy that she had often sent C2 multiple messages saying how much she missed her with sad faces and saying, “Momma is sorry I didn’t get to have you more.” (As the evidence showed, Mr. MacGougan’s report was accurate.)
Observational Visits
100As part of her investigation, Ms. McHardy observed a virtual visit with each parent, and conducted private interviews with C2. The visits were virtual because they occurred during the Covid pandemic. As a result, Ms. McHardy did not observe any of C2’s transitions or her behaviour during them. Both visits involved some baking activity.
101The visit with Ms. Bill, which included C1, was relaxed. Ms. McHardy observed Ms. Bill to be appropriate with the children and noted no concerns about any interactions. During a brief discussion with C2 on this date about whether she would be visiting her father, she told Ms. McHardy that she would be attending a short visit with him on the upcoming Wednesday, but she did not trust that he would bring her home if she went on Monday. She could not explain why she had that feeling.
102The visit with Mr. MacGougan began with C2 criticizing her father for not having the right ingredients when he suggested they bake cookies. Ms. McHardy described C2 as being “very dismissive towards her father, making faces at him which he ignored” while they baked. Ms. McHardy described the following occurring during the visit:
“All of a sudden, C2 turned towards the camera with a big pout on her face. She started to cry and said, “I want my momma” and began sobbing. She said she wanted to go home right away.” After some calmly voiced and appropriate suggestions by Mr. MacGougan addressing C2’s emotional display, “as quickly as C2 started to cry, she abruptly stopped. She engaged in conversation with her brother and father, laughed several times and smiled as they talked about making one big, huge cookie.”
103Much of the remainder of the visit proceeded uneventfully, with C2 clearly being comfortable speaking with her father and interacting with him. She showed was also “quite animated and chatty, and smiled frequently” when she spoke to Ms. McHardy. At one point, after happily eating cookies and ice cream offered by Mr. MacGougan, C2’s “face turned into a “pout” and she said, “I want to go back to Momma’s right now.” When reassured by Mr. MacGougan that he would take her back to her mother’s shortly, C2 resumed normal conversation with her brother and father.
Ms. McHardy’s Interviews with C2
104C2, who Ms. McHardy called “an articulate, strong-willed and determined child”, reported that she did not like spending a week with each parent and did not wish to spend a week with her father. She told Ms. McHardy that she likes to spend time with her mother and be at home with her. She said that she did not like going to her father’s residence because he is “mean to C1 and tells him he will not accomplish things in life.” C2 was unable to provide any other reason for not wanting to go to her father’s residence than, “I do not like him.” She also told Ms. McHardy that she was “not sad” that she did not like Mr. MacGougan and that she does “not care about him” or “how he feels.”
105C2 further reported that before the parties separated, she enjoyed spending time with both parents. When asked what changed, she said, “I just do not like the new arrangement” but could not provide a more precise reason. She was clear, however, that her father had never hurt, hit, or harmed her.
106C2 told Ms. McHardy, who asked, that she did not know if her mother liked her father but thought that she did not.
107She also said that both Ms. Haas and her mother had told her many times that she needed to spend time with her father.
108When asked for three wishes, one of them was that she not go to her father’s but, if she did, she could perhaps go “maybe four hours on alternate Saturdays.”
Ms. McHardy’s Discussion and Conclusions About C2’s Reaction to Visiting Mr. MacGougan
109In discussing what she had learned through her investigation, Ms. McHardy wrote that:
a) C2 presents as a child who is enmeshed with her mother in an unhealthy way that is undermining her ability to form a positive bond with her father;
b) The fact that C2 cannot come up with any valid reasons for disliking her father “might suggest” that she is siding with her mother and taking on her mother’s view of her father;
c) Ms. Bill reported being at a loss how to manage C2 and being exhausted from the conflict with her and Mr. MacGougan about the parenting schedule;
d) Ms. Bill told her she never really wanted the week-about parenting schedule and that it was “too much” for C2, as evidenced by her behaviour;
e) Mr. MacGougan is a loving father, not a parent that was walking away from his child, having demonstrated a strong desire for a happy and positive relationship with his children and a willingness to seek assistance from professionals and follow their advice;
f) Ms. Bill “presents as a loving caring mother but also demonstrates a rather stern, rigid, and closed-off presentation when discussing the conflict and situation with C2. She also presented as flat and unresponsive or unwilling to engage in any dialogue during the disclosure meeting.” Ms. Bill’s “facial expression portrayed a stern look of unhappiness and anger,” leading Ms. McHardy to comment that if C2 observed Ms. Bill presenting similarly in the presence of Mr. MacGougan, “there is no doubt it would have a negative effect and influence her”;
g) Ms. Bill was “currently” taking a somewhat passive approach when it comes time for C2 to be with her father, removing herself as a defense against accusations that she was not doing something right or being viewed as doing something wrong when she does say or do anything;
h) Ms. Bill’s self-protectiveness was not helpful to C2, and her “stance of not having anything to do with [Mr. MacGougan] or leaving it up to him to resolve transitions with C2 is not good parenting or appropriate”; and
i) Mr. MacGougan has not always behaved appropriately with C2 during transitions and has caused increased stress for everyone by chasing her or saying unhelpful things to her or her mother.
110In concluding her discussion, Ms. McHardy wrote that:
…there are no valid reasons why C2 should not be spending time with her father. The cause of C2’s refusal is complex and requires a careful, methodical plan towards a healthier relationship with [him]. This will only be achieved with the assistance of a trained therapist with experience in re-integration of children and parents....
[The parties] need to find a way to co-parent cooperatively and responsibly with each other and work towards sorting out a plan that will support C2 having a relationship with each parent. That starts with each parent showing respect and civility to the other in C2’s presence. C2’s struggles with transitions need to be co-managed by both parents. A child’s behaviour and approach will only be changed when they see and understand their parents are on the same page. If C2 will not go with her father, [Ms. Bill] needs to send a strong message to her. She might wish to consider driving C2 to [her father’s] home. Once there, she needs to get C2 out of the car and leave immediately, regardless of any tears or acting out behaviour. Both parents need to learn how to take back their power from C2. C2 has somehow learned that her parents are not capable of enforcing the rules and they have allowed her behaviour to get the desired outcome she wants during transitions with her father.
… This is a family that needs a systems-based reintegration counsellor that will work with the entire family towards a solution. Change in the family hierarchy does not start at the child’s level, it starts with the parents. Both parents must work towards the goal of C2 spending meaningful time with her father.... The counsellor will assist them to each learn how to use strategies that will enable them to use their personal influence and authority to send a strong message to C2 that she is [neither] in charge nor the decision-maker in the family when it comes to parenting time with each parent….
111Ms. McHardy made other parenting time recommendations, significant among them that:
a) Ms. Bill have “primary residence” of C2; and
b) Ms. Bill work with a counsellor “to reduce the enmeshment between C2 [and her], beginning with C2 sleeping in her own bed.”9
Parties’ Comments about Ms. McHardy’s Report
112Both parties testified that they agreed that they had abdicated parental control to C2, and that Ms. McHardy was right to tell them that they needed to take it back from her. Ms. Bill also acknowledged telling Ms. McHardy that Mr. MacGougan is a “good dad.”
Ms. McHardy’s Evidence at Trial Regarding C2’s Resistance to Mr. MacGougan
113Ms. McHardy was called as a witness by Mr. Skuce. His examination-in-chief consisted solely of having her identify her OCL report, after which she was cross-examined.
114She began by saying that her task was not to address factual inconsistencies from the parents. Her goal, instead, was to provide a balanced perspective to the court.
115She had described the relationship between Ms. Bill and C2 as enmeshed because it lacked boundaries between the roles of parent and child. She said that an enmeshed parent/child relationship was an unhealthy relationship. She also testified that the enmeshment may have resulted in C2 seeing herself and her mother as one person. If so, this would have resulted in C2 needing her mother to be present with her in order to feel comfortable.
116When asked about C2’s suddenly changing emotions at her visit with her father, Ms. McHardy said that some of what she saw on the part of C2 was “mere show” while some was driven by anxiety.
117In recommending that the parties secure the services of a reintegration counsellor, Ms. McHardy hoped that the therapeutic process might identify the reasons that C2 was so fixed in her views against her father. Ms. McHardy also indicated that both parents needed to be involved in the therapeutic process because both had played a role in C2’s situation and both were responsible for helping her grow into a healthy functioning adult. To succeed in that process, both parents need to “let go of the past” and set aside their personal animosities, hurts, or conflicts.
118In re-direct examination, Ms. McHardy also said that Ms. Bill needs to learn about her feelings, behaviours, and actions, Mr. MacGougan needs to learn better how to relate to a seven-year-old, and C2 needs to learn that her parents are in charge, not her.
Appointment of Paula DeVeto
119Paula DeVeto is a Registered Social Worker, an accredited member of the Ontario Association of Family Mediators and a member of the Family Dispute Resolution Institute of Ontario. Ms. DeVeto holds other memberships in professional organizations pertaining to family therapy. She is well-known in southwestern Ontario as a family and reintegration counsellor.
120Around the time that the parties received Marsha McHardy’s final report, which was dated July 5, 2021, Mr. MacGougan contacted Ms. DeVeto to engage her for reconciliation or reintegration therapy. By July 7, 2021, he had completed and returned the therapy intake documents to her.10
121Following the OCL disclosure meeting, the parties negotiated an interim parenting-time arrangement.
Interim Parenting Time Order of August 12, 2021
122On August 12, 2021, Justice Scott Campbell made a consent order pursuant to which Mr. MacGougan was to have parenting time with C2 one weekday evening per week from 3:30 p.m. to 7:30 p.m. and alternating Saturdays for six hours, with the duration to expand to eight hours after six visits. The order further required the parties to immediately complete the intake process with Paula DeVeto, whose costs they were to share equally.
123It also required Ms. Bill to follow a defined procedure at parenting time exchanges mirroring that suggested by Ms. McHardy. She was to walk C2 to her father when he came to pick her up. If C2 refused to go, Ms. Bill was to transport her to Mr. MacGougan’s residence, drop her off, and leave. Transitions were not to be prolonged, mirroring another of Ms. McHardy’s recommendations.
124Ms. Bill contacted Ms. DeVeto within a week of Justice Campbell’s order having been made. She returned her completed intake documents on September 9, 2021. In the interim, the parties completed a Family Treatment and Intervention Agreement which also contained Certificates of Independent Legal Advice.
125While she denied delaying her involvement with Ms. DeVeto, the only explanation Ms. Bill provided for not contacting Ms. DeVeto earlier than she did was that she “wanted all of the OCL recommendations to be taken into account.”
C2’s Attitude Regarding Visits with her Father Following the Order of August 12, 2021
126In the period between August 17, 2020 and August 2021, while Ms. Bill was unsuccessful in transitioning C2 to Mr. MacGougan for his parenting time, she had succeeded in getting her to attend all doctor and dentist visits, friends’ birthday parties and extracurricular activities, including cheerleading and skating.
127The lack of success at transitions to the care of Mr. MacGougan changed, however, with the making of the order of August 12, 2021. C2 immediately began to go for visits with her father, without any resistance.
128While Mr. MacGougan said that he could not understand how an order could cause C2 to change her mind about going with him, Ms. Bill attributed the change to C2 being more comfortable knowing when she would be returning to Ms. Bill’s residence. Ms. Bill said that she felt that C2 needed structure, consistency, and to be aware of the schedule, with a fixed schedule being better for both her and C2’s stress levels.
Observations by Others of C2 in Mr. MacGougan’s Care After August 2021
129Several of Mr. MacGougan’s witnesses spoke about their observations of C2 while in Mr. MacGougan’s care in the period after Justice Campbell’s interim amending order of August 12, 2021. All described a warm, loving relationship between C2 and her father.
130Amanda MacGillivary first met C2 in the summer of 2021. Since then, she has seen C2 at the home of Mr. MacGougan and his current partner, Justine Kelly,11 on a few occasions, describing one interaction with C2 in February 2022 as “a very positive experience.” She said that C2 excitedly spoke with her about attending a local entertainment complex the day before. She had also been present for a pool party in June 2022 when all of the children, C2 included, “had fun.”
131Michelle Braam described C2 as being happy, silly, telling jokes and behaving like a normal child her age when at her father’s home.
132Melanie Knapp first met C2 in 2021 and saw her at her father’s home on multiple occasions in 2022, where she was “relaxed and comfortable.”
133Rebecca Simons, whose daughter is in gymnastics with C2, saw C2 maybe four or five times in 2022 for a few hours on each occasion. She concluded that C2 very much enjoyed being in the presence of her father because of the way she gave “affection without thought.” She saw C2 hug her father, without hesitation.
Motion of March 18, 2022
134After the parties had been working with Ms. DeVeto for approximately four months, discussions about an expansion of Mr. MacGougan’s parenting time became bogged down when the parties and their counsel could not agree about what steps, if any, should be taken toward that result. As a result, a motion was scheduled to be heard on March 18, 2022.
135Ms. DeVeto wrote a report, dated March 3, 2022, for the motion at the request of Mr. MacGougan’s then-counsel. In it, she lamented the fact that the parenting schedule contained in Justice Campbell’s order of August 21, 2001 “created a double bind in the therapeutic process,” which precluded her from “directing an expansion in parenting time between C2 and Mr. MacGougan.”
136The “double bind” was that, while Ms. DeVeto viewed increased parenting time as being necessary to restoring a normal and healthy relationship between C2 and her father, any efforts on her part to promote an increase in Mr. MacGougan’s parenting time were being “construed as [Ms. DeVeto] working outside of [her] jurisdiction.” As a result, the court was being asked to determine whether there should be an expansion of Mr. MacGougan’s parenting time.
137Having heard the motion, on April 13, 2022, Justice Tobin ordered an interim variation in the interim order of Justice Campbell dated August 12, 2021. Justice Tobin ordered that, over three alternate weekends, Mr. MacGougan was to have parenting time from Saturday at 11:00 a.m. until Sunday at 1:00 p.m. and, thereafter, from Friday after school until Sunday at 7:00 p.m., plus one evening per week from 3:30 p.m. to 7:30 p.m., in addition to such other times as the parties might agree, in advance and in writing. (The parenting time arrangement in place at the time of trial was a slight variation on this.)
138In making his order, Justice Tobin rejected Mr. MacGougan’s position that his parenting time should revert to that set out in the original order, with some variations. He found Ms. Bill’s “less drastic” proposal to be “the safer and less risky one to order at this time,” and that the “gradual expansion which has started to work well should continue.”
139In rejecting Mr. MacGougan’s proposal to revert to equal parenting time, albeit differently configured, Justice Tobin found that such an arrangement “will not be based on any evidence that it has worked.” He did not want to impose a schedule that might cause C2’s behaviour to revert to that which existed before the August 21, 2021 order of Justice Campbell, expressing the view that a gradual approach provided for less risk that such a regression in behaviour would occur.
Ms. DeVeto’s Written Report of March 3, 2022
140In her written report, Ms. DeVeto detailed her work with C2 and her parents.
Ms. DeVeto’s Initial Interview with Ms. Bill
141Ms. Bill had told Ms. DeVeto during her initial interview that, when the parties tried to implement the parenting schedule mandated by Justice Campbell’s order of February 14, 2020, what resulted was “very unstructured due to Mr. MacGougan's work schedule.” The result, according to Ms. Bill, was that, during some weeks, C2 would only see her for four waking hours while being cared for by Mr. MacGougan. (Mr. MacGougan later changed his work hours and, finally, his employment in order to have more time with the children.)
142Ms. Bill also said that she had signed the original Minutes of Settlement, despite not believing the week-about schedule to be in the best interests of either child, “because she wanted Mr. MacGougan to move out of the matrimonial home so badly.”
143Ms. Bill told Ms. DeVeto that she “did not believe C2's resist/refuse behaviours were related to the messaging she was receiving from her” citing the fact that, after refusing to go with her father, C2 had no problem going to a friend’s home.12
144Ms. Bill’s position was for the children to be in Mr. MacGougan's care every other weekend and two evenings per week from 3:30 pm to 7:00 pm or 8:00 pm.
Ms. DeVeto’s Initial Interview with Mr. MacGougan
145When Ms. DeVeto met with Mr. MacGougan, he informed her that there were only difficulties with C2 transitioning to his care when Ms. Bill was present and that, once C2 was in his care, his time with her was positive.
146He also provided some examples of actions by Ms. Bill that he and Justine Kelly thought may be “indicators of Ms. Bill wanting to erase or marginalize [his] relationship with C2.”
Ms. DeVeto’s Interviews with C2
147While C2 spoke positively of her experiences with both parents, when asked why she did not like sleeping at her father’s house she said that she did not know.
148Based on other statements made by C2 during their conversations, Ms. DeVeto concluded that “C2's perception was that her mother may be angry at her father.”
149Ms. DeVeto also attended one of C2’s visits to Mr. MacGougan’s residence. On learning that C2 had again displayed an extremely negative reaction to attending that day, Ms. DeVeto asked her about her behaviour at her mother's home. C2 told her that she was worried that her mother would “be hurt," by which she meant “missing [her]” while she was at her father’s, a worry that C2 explained was based on how her mother looked when it was time for her to leave.
150When Ms. DeVeto returned to Mr. MacGougan’s residence to observe a transition of C2 from her mother to her father which had, in fact, already occurred, without incident, before her arrival, “C2 appeared comfortable and relaxed,” telling her that she “did not have any worries or concerns.”
Parenting Issues
151By the date of the report, the parties13 had met with Ms. DeVeto on at least two occasions. The meetings were intended to “open lines of communication between the parties, identify concerns and work toward solutions.”
152Ms. DeVeto reported that, at the outset of her involvement, C2 was still regularly sleeping with her mother. After some discussion about “healthy boundaries,” however, Ms. Bill implemented some changes recommended by Ms. DeVeto with respect to C2 sleeping with her.
153Another issue noted to be of concern to Ms. Bill, who preferred an established schedule over ad hoc parenting arrangements, was the frequency at which Mr. MacGougan requested additional time with C2. Many reportedly came at the last minute, an assertion with which Mr. MacGougan did not disagree.
154While the parties were generally able to resolve the “last minute” requests, as well as successfully negotiating the 2021-2022 winter holiday schedule, Ms. DeVeto’s assistance was required to get them to an agreement about the children going with Mr. MacGougan, Ms. Kelly, and her children on a trip to Niagara Falls for a couple of days.14
155Despite these successes, however, Ms. DeVeto noted that Ms. Bill continued to resist C2 spending more overnight periods with her father.
156An issue of concern noted by Ms. DeVeto in her report was that, in the period when C2’s parenting time with her father was being thwarted by her behaviours, the parties had ceded control of the situation to C2, rather than taking charge as the adults. By the date of Ms. DeVeto’s report, however, she noted that the parties were in charge and C2 was aware that she had no choice about whether or not she went to spend time with her father. C2 had also been told that, if she escalated her behaviour during her bedtime telephone call with her mother while staying with her father, Mr. MacGougan would end the call. The result had been the smoother transitions, occurring at Mr. MacGougan’s residence rather than Ms. Bill’s, which emerged after the August 12, 2021 order of Justice Campbell.
157Lastly, Ms. DeVeto noted that, while C2 was reported to still sometimes engage in "crying" and "clinging" to Ms. Bill at transition times, Ms. Bill continued “to work on separating herself from C2 without lingering.”
Ms. DeVeto’s “Clinical Impressions”
158Ms. DeVeto began by noting that, for young children, a term that she said applied to six-year-old C2 when the parties agreed on their initial parenting order, a “week about schedule is generally not recommended” because, “[d]ue to their age and developmental stage, young children may experience anxiety being away from either parent for extended days at a time.” She further noted that, “[w]ith young children it is commonly recommended for transitions to occur more frequently with parenting time being for shorter durations.”
159However, while she found it “curious,” that C2 had attended the week-about visits with her father for 5-6 months before her resistance manifested itself, she ultimately concluded that it was “speculative” to lay the blame for C2’s resistance on the schedule agreed to by the parties.
160Instead, she identified “behaviours” that she discerned during re-integration counselling which “appear[ed]” to have “impeded smoother, successful transitions for C2,” writing:
These include conflict between the parents, conflict between each parent and C2, and both parents not establishing a firm boundary and united front with C2 regarding parenting time with her father not being her choice. Ms. Bill reported that on the advice of her legal counsel she removed herself from interactions at transition times to thwart being blamed by Mr. MacGougan for C2's resist/refuse behaviours. Although Ms. Bill may have had good intentions, unfortunately her choice to behave in this manner is diametrically opposed to what is necessary to effect meaningful change in these circumstances. Although perhaps inadvertently, Ms. Bill abdicated her responsibility to consistently exert her parental authority to support and encourage C2's parenting time with her father.
161She further commented that many of C2’s behaviours during transitions were “quite immature for her age” and that Ms. Bill made no effort “to extinguish” them or to “establish age-appropriate expectations.”
162She also identified as “problematic” at transition times: Ms. Bill’s stoicism and her “kissing C2 repeatedly, engaging in lengthy hugs, a prolonged gaze, rubbing her back, whispering to her, and making statements conveying to C2 that she will be okay, and she will miss her.” She “encouraged” Ms. Bill to consistently take on an active role at transition times e.g., by speaking positivity and enthusiastically to C2 about her time with her father.”
163Lastly, Ms. DeVeto concluded that Ms. Bill had not been “supporting the father/daughter relationship” and indicated that it would be “important to closely monitor any future behaviours by Ms. Bill that are designed to restrict C2's parenting time with her father, do not convey support for the importance of the father/daughter relationship, and/or invalidate the relationship.”
Ms. DeVeto’s Recommendations
164Ms. DeVeto’s recommendations included:
a) that C2’s relationship with her brother and the potential impact of separating the siblings be considered when determining any changes to the parenting schedule;
b) that telephone calls between C2 and Ms. Bill during Mr. MacGougan's parenting time to be eliminated “if they continue to be utilized to disrupt versus support and validate C2's parenting time with her father;”
c) that “Ms. Bill pursue individual therapy to address potential anger issues, resentment, her overreliance on C2/enmeshment issues, and difficulty supporting C2's age-appropriate autonomy when C2 is in the care of Mr. MacGougan;”
d) that re-integration counselling continue for C2 and her parents, in order that C2 can feel comfortable living her life in the care of both parents;
e) that the parties continue to communicate via Our Family Wizard; and
f) that Mr. MacGougan ensure co-parenting issues remain primarily between Ms. Bill and himself without unnecessarily involving Ms. Kelly.
165In her report, Ms. DeVeto also labelled as a “barrier” to compliance Ms. Bill’s refusal to consent to her speaking with the therapist with whom Ms. Bill had been consulting about the sudden and unexpected death of her mother. 15
Ms. DeVeto’s Evidence at Trial
166Ms. DeVeto appeared at trial as one of Mr. MacGougan’s witnesses because, apparently, the parties did not agree to her being produced as an independent expert witness. She confirmed the contents of her written report.
167I qualified her as a participant expert in the area of reunification counselling/therapy, its processes, and goals. She was permitted to provide opinions gathered in the process of working with the parties but could not speak to the causation of actions.
168From the outset of Mr. Skuce’s cross-examination, it was obvious that he and Ms. DeVeto had a history of disagreements about this file16 which permeated their exchanges at trial.
169A major point of contention was the extent to which, if at all, Ms. DeVeto could make recommendations about the structure of a parenting schedule. It appeared to be the position of Mr. Skuce (and, therefore, Ms. Bill) that any such recommendations fell outside of Ms. DeVeto’s mandate. She disagreed.
170When asked about there being no reference in the parties’ “Family Treatment and Intervention Agreement” to the goal of the reunification therapy being to restore a 50/50 parenting regime, Ms. DeVeto replied that she could not say that it was because the lawyers (Mr. Skuce and Mr. Ludmer, former counsel for Mr. MacGougan) could not agree on what it should be, leading to the motion heard by Justice Tobin.
171Ms. DeVeto testified that she saw nothing in her interactions with Ms. Bill which would lead her to conclude that she did not want C2 to have a relationship with Mr. MacGougan. However, she also saw Ms. Bill as having been exercising a “gatekeeping” function, by which she meant that Ms. Bill, by her actions or inaction, essentially controlled how often C2 and her father spent time together, thus giving effect to her preferred outcome of C2 not spending equal time with Mr. MacGougan.
172When asked about this, Ms. DeVeto denied that she was suggesting that Ms. Bill controlled C2. She said that while C2’s behaviour was not managed, it was disproportionate to the circumstances.
173According to Ms. DeVeto, Ms. Bill reaction to C2’s behaviour was the primary influence on it. She testified that children need the active encouragement of their preferred parents to be able to cross over to spend time with their other parent. Thus, C2 needed her mother’s support for her transitions to the care of her father to be successful.
174She further testified that C2 had little autonomy and that she behaved in the manner that she believed that she was expected to behave in circumstances where she needed to be available emotionally to her mother who, she had determined, could not cope without her.
175She defended the legitimacy of this “hypothesis,” saying that it was based on evidence from multiple sources, while also conceding that Ms. Bill never told her that she needed C2 to support her emotionally.
176When asked how, if her “hypothesis” was correct, Ms. Bill communicated to C2 that she was granting permission for her to resume attending her father’s residence in August, 2022 without resistance, Ms. DeVeto replied that Ms. Bill simply would have said to C2 that she should go to her father’s.17 By doing so, Ms. DeVeto said, Ms. Bill would have used her legitimate authority to make the event happen. She cited, in contrast, Ms. Bill saying nothing when C2 refused to go to her father’s, and then allowing her to go play with a friend, information which Ms. Bill had provided to her and referred to in her report.
177When asked about Ms. Bill not having asserted her parental authority to compel C2 to go to her father’s because she had been advised not to do so, Ms. DeVeto’s response was that Ms. Bill had been badly advised.
178Asked about a comment in her report that Ms. Bill was concerned that affording C2 increased parenting time with Mr. MacGougan could lead to new resistance or refusal, Ms. DeVeto responded that whether she does so will depend on Ms. Bill’s reaction to an increase in parenting time and how she conveys it to C2.
179Ms. DeVeto also acknowledged that Ms. Bill had implemented some of her suggestions. She noted, in particular, that Ms. Bill was no longer co-sleeping with C2, which had been “a problem, because sleeping alone fosters independence.” She also cited Ms. Bill having begun to exchange C2 at Mr. MacGougan’s residence and found Ms. Bill to be receptive to her suggestion that she limit transition interactions with C2 to one hug and one kiss.
180While Ms. DeVeto reported that Mr. MacGougan had wanted her counselling to continue, she was unclear if Ms. Bill had withdrawn from the process.18 Furthermore, while the agreement signed by the parties required them to participate for at least six months, she was uncertain if Ms. Bill had done so. In any event, Ms. DeVeto was of the position that work with the family is incomplete.19
181After repeatedly denying that her recommendations arose from a dislike of Ms. Bill, and asserting that her assessment was based on what she saw, learned, and considered relevant, Ms. DeVeto spoke to some of the recommendations in her report, explaining that:
a) re-integration counselling needed to continue because C2 had told her at her father’s residence that she was not telling her mother about her positive experiences with her father. Ms. DeVeto was concerned that C2 was compartmentalizing her life between the two homes. She said that work was underway to address this issue when counselling ended; and
b) Ms. Kelly should not be “unnecessarily involved” in co-parenting decisions between the parties “out of respect for Ms. Bill,” who had perceived her involvement, particularly in exchanges, as having not helped the situation, whatever her intentions might have been.
Ms. Bill’s Reply to Ms. DeVeto’s Evidence
182Ms. Bill testified about what she regarded as a negative relationship between her and Ms. DeVeto. She said that, while their first meeting went well, the second “ended up [with] the conversation going south,” with Ms. DeVeto threatening to call the Children’s Aid Society on her. No further detail was provided. Notwithstanding, Ms. Bill testified that she remained involved with Ms. DeVeto for more than six months, and paid her invoices until March 2022, which was beyond the six-month date from when the contract was signed.20 In that period, she paid $3,500.00 to Ms. DeVeto.21
183She also acknowledged that Ms. DeVeto was not the only person who had recommended that she stop co-sleeping with C2 but said that she could not recall who they were.22
184As she had done with respect to the same recommendation from Ms. McHardy, Ms. Bill agreed with Paula DeVeto’s comment that she and Mr. MacGougan needed to take control back from C2, and that they had failed to do so in the early stages of C2’s resistance. She listed a number of efforts to regain control, including:
a) trying to implement recommendations made by Mr. MacGougan’s therapist, which he sent to her by email. (This aligned with evidence from Mr. MacGougan that his parenting coach had recommended trying to exchange C2 at locations other than Ms. Bill’s residence);
b) using a calendar in which she had listed events planned at Mr. MacGougan’s residence. (Ms. DeVeto had made this recommendation, although she was unaware if Ms. Bill had followed it. The calendar was referred to by Ms. Bill’s sister, Mallory McEachen); and
c) involving third parties in transitions, as Ms. DeVeto had recommended in therapy.
185Asked why, given all of her efforts to take back control, she was only seen by Mr. MacGougan as having not required C2 to do what she was told, she responded that many times she spent “hours” trying to persuade C2 to go before Mr. MacGougan’s arrival, but he would only see an “exhausted” Ms. Bill on his arrival, and not the work that she had put into trying to persuade C2 to go before he arrived.
186She further denied:
a) that her efforts to have C2 go with her father were “insincere,” describing as “horrendous” the situation in which she and Mr. MacGougan had found themselves because of C2’s resistance;
b) that she had caused C2’s transitions to the care of Mr. MacGougan to be long and drawn-out before she implemented Ms. DeVeto’s recommendations about how to control, and consequently, reduce their duration, while acknowledging that some transitions took longer than others because she “had to pry C2’s hands away” from her body.
c) having anger issues, reporting that no professional with whom she has ever consulted told her that she did. She also disagreed with Ms. DeVeto’s conclusions that she is resentful, that she over-relies on C2 or that she relies on C2 to meet her emotional needs, saying that she is generally not an emotional person; and
d) Ms. DeVeto’s “hypothesis” that she controlled C2, describing her as an independent child who is quite capable of explaining herself. She explained C2’s resistance having ended in August 2021 because she was better able to manage going to her father’s when the parenting time schedule was reduced. She said it presented a more manageable time frame for C2 and was a better fit for her needs.
Justine Kelly
187Her evidence was often the most critical of Ms. Bill, particularly when speaking about C2’s transitions. 23, 24 She had to be admonished on more than one occasion to speak only of her personal knowledge rather than what she had learned from other sources.
188She testified that the transitions which occur at the residence she shares with Mr. MacGougan “continue to be problematic,” saying that C2 still becomes upset and Ms. Bill continues to hug and kiss C2 at the door “a little long.” However, when challenged on her view that the hugging was prolonged, and faced with the suggestion that she was being critical of Ms. Bill, she responded that she did not know who, as between C2 and her mother, was prolonging the hugging.
189She also related some occasions when C2 had apparently said to Ms. Bill, as she was leaving after dropping her off, that she loves her, but Ms. Bill did not respond. On one of those occasions, she contacted Ms. Bill and commented on her failure to respond to C2. When cross-examined about this evidence, she added that she believed that Ms. Bill sometimes deliberately failed to respond to C2, while also acknowledging that she did not even know whether Ms. Bill had heard C2 speak to her.
190She further testified that in December 2021 and January 2022, when dropping off C2, Ms. Bill would tell her or Mr. MacGougan that C2 had a fever and was not feeling well. Because she felt that this became a pattern, Ms. Kelly said that she began checking C2 for fevers with two thermometers, neither of which ever indicated that C2 had a fever. When it was suggested that she was implying so, Ms. Kelly denied that she was blaming Ms. Bill for providing false information and claimed that she accepted Ms. Bill’s assertions that C2 was having fevers at home.25, 26
191Ms. Kelly did agree that Ms. Bill has not complained about restrictions that require C2 to ask her father or Ms. Kelly if she can contact Ms. Bill, if she wishes to do so while in the care of Mr. MacGougan.
192She also acknowledged Ms. DeVeto’s recommendation that she not be involved in parenting decisions concerning C2, believing it to arise from an incident that occurred in either December 2021 or January 2022 when Ms. Bill dropped C2 off at her house. Ms. Kelly, feeling that the transition was “prolonged,” told Ms. Bill, in C2’s presence, “this isn’t good for her.” Ms. Bill responded that it was not good for her, either, prompting Ms. Kelly to say, “it is not about you. It is about her.” Mr. MacGougan intervened and told Ms. Kelly to stop the conversation, which she did. She also later told C2 it was wrong for her to speak to her mother as she had, and she reported the incident to Ms. DeVeto.
193However, while Ms. DeVeto’s recommendation is appropriate, in my view, there is another good reason to accept it. Ms. Kelly’s evidence often sounded as if she had a personal stake in the litigation and, in fact, on one occasion, her involvement could have inflamed an already tense situation.
194In January 2023, after the parties had been able to work out issues related to departure time, Mr. MacGougan drove C2 and a friend to a skating competition in Kingston. When they were returning, it became apparent that they were going to be late arriving because of a storm. En route, while stopped for a meal, Mr. MacGougan texted Ms. Bill to advise of the storm and to ask if he could take C2 to his residence for the night, rather than drop her off at Ms. Bill’s residence, as had been agreed and as the schedule required. Ms. Bill responded that she wanted C2 brought home. On arriving in St. Thomas, late because of the storm, Mr. MacGougan instead drove C2, without resistance, to his residence for the night. One of the texts sent by Mr. MacGougan to Ms. Bill about this, however, warned her that if she tried to retrieve C2 from the residence, police would be called. It emerged that Ms. Kelly, who had edited Mr. MacGougan’s text before it was sent, had added the threat to call police, and Mr. McGougan had failed to remove it from the text before it was sent. 27, 28
C2’s December 2022 Vacation in Mexico with Mr. MacGougan
195Mr. MacGougan and Ms. Kelly took C2, C1 and Ms. Kelly’s children to Mexico for a week-long vacation in December 2022. The scheduling of the vacation involved negotiations which were said by Mr. MacGougan to have taken “months,” with the date being settled by an order of Justice Campbell dated September 16, 2022. There was also a dispute about when the children would transfer to Mr. MacGougan’s care in advance of the trip. The parties were able to resolve that issue without a further court order, with both compromising on their original positions.
196The uncontradicted evidence is that C2 enjoyed herself while away, and neither acted out nor spoke disrespectfully to Mr. MacGougan during the entirety of the vacation. Although offered a chance to call her mother, she declined to do so.
Issue #1(a): Has there been a material change in circumstances with respect to either parenting time or decision-making responsibility that affects or is likely to affect the best interests of C2?
Positions of the Parties
Ms. Bill
197Mr. Skuce asserted on behalf of Ms. Bill that the events which occurred with respect to C2’s resistance to attending for parenting time with her father in the period between August 17, 2020 and December 2020, when Ms. Bill commenced her Motion to Change, represented a material change in circumstances.
198He relied, firstly, on Justice Tobin’s endorsement dated April 13, 2022, in which he wrote that the “parties agreed that there were compelling and exceptional circumstances that required a change in the final Campbell J. parenting order.” He also cited the fact that, in his materials filed for the motion, Mr. MacGougan had sought to reinstate an equal, but different, parenting time schedule.
199He argued that the parties had already agreed that there had been a material change in circumstances, so that Ms. Bill should not have to again “cross the bridge” of establishing that one had occurred.
200I cannot agree. In my view, Mr. Skuce’s submission ignores Justice Tobin’s comment at paragraph 33 of his motion endorsement that “[t]he determination of [the] issue [of who is at fault for the deterioration in the father/child relationship] may well inform the determination [at trial] of whether there has been a material change in circumstances…”
201Clearly, Justice Tobin was of the view that whether or not there had been a material change in circumstances was an issue for trial.
202Mr. Skuce next relied upon specific statements made in decisions in the following cases in support of his submission that the evidence in this case established a material change in circumstances: Montgomery v. Montgomery, 1992 CanLII 8642 (ON CA), [1992] O.J. No 2299 at paras: 68 and 69; Kronberger v. Kudrocova, 2020 ONSC 1877 at para. 20; N.L. v. R.R.M., 2016 ONCA 915 at para. 31; M.R. v. A.L. and G.L., 2017 ONSC 85 at paras. 29, 31, 32 ; and D.M.R. v. D.R., 2016 ONSC 767 at para. 26.
203In essence, Mr. Skuce took the position that C2’s behaviour, for which no explanation was readily available other than the original parenting schedule, constituted the material change in circumstances required by the court to make a new order. He further endorsed Ms. McHardy’s view that the parenting schedule needed to be reset. This, he suggested, was an acknowledgement by Ms. McHardy that there had been a material change in C2’s needs and circumstances.
204As to the elements that need to be established in order to establish a material change in circumstances, Mr. Skuce agreed with Ms. Samuels that any change relied upon must be more enduring than brief. That noted, he further submitted that the test to establish a material change cannot be so onerous that C2’s best interests are sacrificed to it.
205He adopted the language of Justice McGee in M.R. v. A.L. and G.L., supra, and urged that I find the current order to be harmful to C2, leading her to adopt negative coping strategies to survive the situation in which she found herself, which together combined to create the material change in circumstances.
Mr. MacGougan
206Ms. Samuels submitted on behalf of Mr. MacGougan that Ms. Bill “has failed to discharge her obligation in law” to establish a material change in circumstances. That submission was bolstered by an extensive review of the evidence.
207Like Mr. Skuce, she noted that, to be material, the change relied upon must be significant and long-lasting. She submits that Ms. Bill has failed to meet this test.
208She submitted that Ms. Bill provided “no compelling evidence…to prove that there has been a long-lasting change in circumstances or that C2’s time with her father was in any way unhealthy, damaging or otherwise inappropriate to justify a reduction in her parenting time with” him. She further submitted that the “suggestion that C2 could not, or did not, adjust to the parenting schedule chosen by her parents is speculation at best.”
209Instead, Ms. Samuels placed responsibility for C2’s behaviour, not on changed circumstances but entirely on Ms. Bill.
210Ms. Samuels submitted that, “in essence, Ms. Bill allowed a situation to develop in which C2 was permitted to resist and refuse parenting time with Mr. MacGougan because that refusal aligns with Ms. Bill’s own experiences and her preferred parenting schedule, which she was unable to implement at the conclusion of the first court action. Ms. Bill cannot attempt to prove a material change in circumstances by failing to act in her daughter’s best interests especially when such failure is grounded in the parent’s refusal to act appropriately.”
211Ms. Samuels also addressed the fact that C2’s misbehaviours and resistance persisted for about one year. While she conceded that one year is a long period in the life of a child, she suggested that the year in this case was not a sustained change that justified varying the existing final court order from shared parenting to primary care.
Discussion
212While Mr. Skuce urged me to adopt the recommendations of Ms. McHardy, Ms. Samuels noted that those recommendations do not bind me Knapp v. Knapp, 2021 ONCA 305 at para. [20] and urged me to accept the evidence of Ms. DeVeto in preference to that of Ms. McHardy.
213The fact is that I found the evidence of the two witnesses to be remarkably similar on both the issue of C2’s resistance to attending parenting time with her father and its resolution. As a result, I found value in the evidence of both in reaching my conclusions about the issues. More specifically:
a) Each noted that both parents abdicated their responsibility to take charge of C2 when she began to resist going with Mr. MacGougan. Both parents agreed with their assessments in that regard.
b) Both noted that Ms. Bill, in particular, had an obligation to tell C2 that she was required to go with her father, rather than stand back and fail or refuse to intervene when she resisted going.
c) Both found there to be an enmeshment between C2 and Ms. Bill, with C2 overly identifying with her mother and linking her emotions to what she perceived her mother’s to be.
d) Both indicated that the parents communicated poorly, if at all, and needed to learn how to co-parent in the interests of their children.
e) Both noted that Ms. Bill harboured a lingering anger toward Mr. MacGougan, which affected how she reacted to C2’s resistance to going with Mr. MacGougan for parenting time.
f) Both were of the opinion that both parents need to participate in therapy together with C2 for progress to be achieved in relation to her spending time with her father.
Factors Contributing to C2’s Resistance
214Having considered the submissions and the evidence, I have concluded that C2’s explosive resistance to attending her father’s parenting time was the result of several contributing factors.
Factor #1 – Parenting History
215I find that Ms. Bill was more likely than not the children’s primary caregiver prior to the parties’ separation. Accordingly, the children, particularly C2, saw her as the primary caregiver.
216This is not a criticism of Ms. MacGougan, as I also find that he worked hard to support his family at a job or jobs which required him to work hours that made his ability to be an equal participant in the parenting of the children a difficult task. Notwithstanding my comments about the primary role of Ms. Bill, I also find that, when he was able to participate in parenting, which he did whenever he was not working, Mr. MacGougan was a full participant in the parenting of the children.
Factor #2 - Poor Parental Discipline
217A significant contributor was revealed by Mr. MacGougan’s acknowledgement to Ms. McHardy that he and Ms. Bill had never been good about rules and discipline with the children, which had led to behavioural problems while they were still together.
218Ms. Samuels submitted that, “if Ms. Bill chose to assert her parental authority from first instance, C2 would never have resisted or refuse the parenting time set out in the existing final order.” While Ms. Bill’s failure to assert parental authority was, indeed, a contributor to C2’s resistance, what Ms. Samuels’ submission ignored was the fact that, during his testimony, Mr. MacGougan acknowledged that he, too, ought to have exerted parental authority earlier on.
219In my view, the failure of both parties to discipline their children while together, and to exert parental authority when challenged, continued to cause them problems, including those that led to this litigation, after their separation.
Factor #3 – C2’s Anxiety
220A third factor is found in Mr. MacGougan’s attendance upon Dr. Fox with C2 in September 2019, following the parties’ separation but while still jointly occupying the matrimonial home to consult about C2’s “mental health” as she was “not dealing well” with the separation. At this time, he also expressed concern about C2 sleeping with Ms. Bill. Dr. Fox referred C2 to Dr. Thornley to discuss both therapy for her and the fact that she was sleeping with her mother.
221Notwithstanding the impropriety of Ms. Bill having slept with C2 as often as she is alleged to have done, this evidence strongly suggests that C2 more closely identified with her mother, seeking her out for comfort and support in the period after she learned of her parents’ separation, a potential harbinger of future problems.
Factor #4 – The Manner of Separation
222The fourth factor lies in the parties’ continued joint occupation of the matrimonial home to and through the final order of February 14, 2020. One can reasonably conclude, as I do, that, during this period, C2 was able to interact with each of them, perhaps at different times, but in an environment which was familiar to her. Unfortunately, because the parties were unable to move forward with Dr. Thornley, C2’s anxiety about the separation likely continued, as evidenced by her continuing to sleep with her mother through this period.
Factor #5 – Speed at Which the Changed Parenting Plan was Implemented in 2020
223Closely tied to the fourth factor is the fact that the parenting plan agreed upon by the parties and given effect to by the order of February 14, 2020 commenced shortly after Mr. MacGougan’s departure from the matrimonial home in March 2020.
224Whatever effect his departure, by itself, had on C2, Mr. MacGougan’s move was coupled with C2 spending time with him in his new, unfamiliar residence, with the children occasionally being left in the care of a babysitter while he worked.
225C2, an emotionally upset six-year-old child went from being with both of her parents on a full-time basis to being with each half the time and, in respect of her mother, sometimes less. These had to have represented big changes for C2, who was already anxious about her parents’ separation.
226I do not disregard the evidence of Catherine MacGougan about C2 excitedly showing her the bedroom that she would occupy at Mr. MacGougan’s new residence when I include this factor. Her evidence indicated that the excitement was somewhat short-lived, with C2 beginning to be disrespectful to her father within months of him moving.
227At this point, I also must comment on the order of February 14, 2020. Ms. Bill signaled her agreement with it, setting in place a week-about parenting schedule despite not believing it to be in the best interests of either child, because she wanted Mr. MacGougan to move out of the matrimonial home. That was hardly a reason for committing her children to a schedule with which she disagreed. However, the order was made, and Ms. Bill must accept responsibility for sacrificing her disagreement with the parenting schedule to the expediency of having Mr. MacGougan, for whom, by this time she had little regard, move out.
Factor #6 – Mr. MacGougan’s Parenting in the Immediate Post-Separation Period
228It was during this period that Mr. MacGougan described C2’s attendance for his parenting time as having gone well. His perception was not entirely accurate.
229Mallory McEachen testified that Mr. MacGougan was a person who did not “hear” his children speaking about their feelings or emotions.
230Ms. McHardy said much the same thing in her evidence when she testified that Mr. MacGougan needed help to better understand how to be in tune with C2’s emotions. To that point, while I was advised that Mr. MacGougan was aware of the emotional communications between C2 and her mother in the spring of 2020, I heard nothing about what, if any, assistance he offered to C2 to alleviate her emotional condition.
Factor #7 – Ms. Bill’s Attitude Toward Mr. MacGougan
231The seventh factor consists of the underlying cause for C2’s apparently sudden disrespect for her father. That, I find, is Ms. Bill’s obvious hostility toward and dislike of Mr. MacGougan. While she denied that she harboured ill feelings toward him, the evidence strongly suggests the opposite, definitely early in the separation, and likely continuing to the present.29
232In making this finding, I point to the information contained in the report of Ms. McHardy about the downward trajectory of the parties’ marriage, with Ms. Bill “[falling] out of love” with Mr. MacGougan in 2016. By 2019, Ms. Bill “could no longer continue in the marriage.” She further admitted to being “really angry” at the time of the separation.
233These admissions bolster and lend credence to the evidence of Patrycia MacGougan, which I accept, about Ms. Bill saying more than once in the presence of the children that Mr. MacGougan is stupid. Her evidence about other disparaging comments made by C2 to her father about his ability to care for her also suggests, and I accept, that C2 was echoing thoughts voiced by her mother, as reported by Patrycia MacGougan.
234In accepting the evidence of Patrycia MacGougan, I am not ignoring the evidence of Jodi Schultz that she did not hear Ms. Bill speak negatively of Mr. MacGougan during the three months that she resided with Ms. Bill. Her evidence does not prove, however, that Ms. Bill did not say negative things about him when Ms. Schultz was not present, or before or after she lived with Ms. Bill. Also, Ms. MacGougan and Ms. Schultz spoke about events during two different periods.
235As further evidence of Ms. Bill’s anger toward Mr. MacGougan, I accept as accurate the information that he provided to Ms. McHardy about Ms. Bill taking down all the pictures in the house while he was still there (an act which, in my view, could not have been hidden from the children) and removing and deleting from the computer many pictures which included him. These were the acts of an angry person, and it would be folly to conclude that the children were unaware of the anger that drove Ms. Bill to undertake them. I also accept Ms. McHardy’s conclusion that, if C2 observed Ms. Bill presenting with the same unhappy and angry look in the presence of Mr. MacGougan as she did when she heard something not to her liking from Ms. McHardy, “there is no doubt it would have a negative effect and influence [C2].”
236I hasten to add that I do not expect that separating people would not be angry at or with their partner. What they should do, however, is not expose their children to that anger. In this case, I find that Ms. Bill failed in that regard. C2 understood that her mother was angry with her father because she told Ms. DeVeto of her perception to that effect. That anger contributed to C2’s resistance to going with her father.
237While it may be the case that Ms. Bill does not have generalized anger issues, she clearly, in my view, continues to have anger issues when it comes to Mr. MacGougan and the events that occurred both as their marriage ended and thereafter.
Factor #8 – Ms. Bill’s Overprotectiveness and C2’s Emotional Enmeshment
238Both Ms. DeVeto and Ms. McHardy concluded that the relationship between C2 and her mother was enmeshed. I found Ms. McHardy’s explanation of the enmeshment from C2’s perspective to be of assistance as I considered the facts in this case. Significantly, she noted that it the enmeshment may have resulted in C2 seeing herself and her mother as one person. If it did, she said, this would have resulted in C2 needing her mother to be present with her in order to feel comfortable.
239Evidence of such enmeshment was first seen in the report by Mr. MacGougan to Dr. Fox about C2’s reaction to Ms. Bill leaving for work and in C2 wanting to sleep with her mother following the parties’ separation. The evidence thereafter further strongly suggests, and I find, that during the late spring period in 2020, C2’s emotional dependence on and desire to be with her mother was growing, whether or not Ms. Bill recognized that to be the case.
240I cannot accept Ms. Samuels’ submission that “the real source of C2’s struggle” was Ms. Bill’s unhealthy enmeshment with her. Instead, I accept Ms. DeVeto’s more accurately articulated description of the situation when she testified that she was of the view that C2 believed that she needed to be available emotionally to Ms. Bill. This also aligns with Ms. DeVeto’s evidence that, while she found enmeshment between Ms. Bill and C2, Ms. Bill never told her that she needed emotional support from C2.
241I go further and also find that Ms. Bill was, too often, overly protective of C2, too easily abdicating her parental obligations in the face of C2’s rising emotionalism. This overprotectiveness, I find, contributed to C2’s emotional need for Ms. Bill to be with her in order for C2 to feel comfortable. Interestingly, Ms. Bill’s overprotectiveness of C2 flies in the face of Ms. McHardy’s description of C2 as being “strong-willed and determined.” By abdicating her parental obligations in the face of C2’s resistance, I find that Ms. Bill actually emboldened C2 and empowered her will to resist going with Mr. MacGougan.
242I do not agree with Ms. Samuels’ submission that C2’s behaviour aligned with her mother’s expectation that C2 should only want to be with her. The difficulty that I have with this submission is that it reduces C2 to a mere automaton, lacking independent thoughts of her own.
243Instead, I find that C2’s behaviour aligned with what she thought might best achieve the result that she believed her mother wanted, which was for C2 to spend more time with her and less with her father. I also find that, not coincidentally, C2’s behaviour was a manifestation of her anxiety about having to spend what she came to regard as too much time away from her mother.
Factor #9 – Ms. Bill’s Texts with C2 Between March and July 2020
244Whatever might have occurred between Ms. Bill and C2 before then or been said by Ms. Bill during her earlier communications with C2 while she was in the care of her father, the pivotal period, when communications between them evidenced C2’s growing enmeshment with her mother, and Ms. Bill’s growing overprotectiveness of C2, began in late May 2020.
245Not coincidentally, it was also during this period that both parties began to see growing signs of C2’s resistance to going to Mr. MacGougan’s for his parenting time.
246The texts between C2 and Ms. Bill during this period were increasingly emotionally charged. Instead of addressing C2’s hyperbolic texts with calm responses, Ms. Bill fed into C2’s emotional state in an effort to placate her. I find that her responses caused C2’s emotional trajectory to worsen. Ms. Bill, while intending to soothe her daughter’s emotions, was actually stoking them, intentionally or not.
247While Ms. Bill rejected the suggestion that her messages put pressure on C2 and disagreed that they fed into C2’s growing resistance, I find that, in fact, that is exactly what they did.
248I point, specifically, to Ms. Bill’s text of June 13, 2020 when, in response to C2’s tears as they spoke that day and her excessively emotional texts filled with emojis expressing sadness, Ms. Bill informed C2 that she was “sorry I didn’t get to have you more.”
249While it is more likely than not that, in writing this text message as she did, Ms. Bill was attempting to sympathize with C2, while also trying to make her feel better, I find that C2 interpreted her mother’s message in an entirely different manner. I find that C2 concluded that her mother was telling her that she did not want C2 to be with her father so often because C2 should be with her.
250That interpretation by C2 became the fuel which caused a smoldering resistance to spending time with her father to eventually explode into the full-fledged resistance which occupied the parties for the better part of a year.
Factor #10 – Ms. Bill’s Reaction to C2’s Resistance Beginning on August 17, 2020
251The first nine factors all contributed to C2’s ultimate rejection of her father on August 17, 2020. While the level of her rejection fluctuated over the next year, there was one constant during that period, and it is the foundation of the tenth factor that contributed to C2’s refusal to spend time with her father on the terms and according to the schedule to which her parents had agreed in February 2020.
252No one suggested that Ms. Bill ever had a goal of severing the relationship between C2 and Mr. MacGougan. Instead, Ms. DeVeto opined that Ms. Bill’s goal was to control how often C2 would be in Mr. MacGougan’s care. Ms. DeVeto theorized that Ms. Bill sought to achieve, through C2’s behaviour, the goal of rectifying the error she made in agreeing to week-about parenting time in February 2020. Similarly, Ms. Samuels submitted that Ms. Bill set out purposefully to utilize C2 as a means of upending an order to which she consented, despite disagreeing with it.
253I see things differently. In my view, Ms. Bill did not start out having the goal of limiting how often C2 was in the care of her father. Instead, I find that her original goal was to ensure that C2 was not distressed at being with her father, despite her negative view of the order to which she had agreed.
254However, once C2’s resistance became problematic, I also find that Ms. Bill failed to meaningfully intervene to compel C2 to go with Mr. MacGougan because of the anger that she continued to harbour an anger toward him – an anger stemming both from his insistence that the court order be followed and from his efforts, post-separation, to spend more time with the children, something Ms. Bill had complained to Ms. McHardy he had not done while the parties were married.
255In my view, Ms. Bill recognized that, by not interceding with C2 to get her to go with Mr. MacGougan, the likely result would be that C2’s distress at going with her father would be alleviated, and Mr. MacGougan would not have the equal time with C2 that Ms. Bill clearly articulated she had not believed in from the outset. By doing nothing, she achieved a double desired outcome.
256Evidence supporting the first of these findings is contained both in Ms. Bill’s anxious treatment of C2 in the post-separation period and in her response to Mr. MacGougan’s email of August 18, 2020. In it, she wrote of being “cornered” into the agreement which, in her view, was not in the best interests of the children, particularly C2.
257Evidence supporting the second of these findings is found in the “heated” discussion between the parties and Ms. Bill’s refusal to assist Mr. MacGougan in his efforts to have C2 leave with him on August 17, 2020 and thereafter.
258I reject Ms. Bill’s assertion that she did not harbour animosity towards Mr. MacGougan when these events began in August 2020. She must take responsibility for putting in motion the events that followed her unilateral decision to separate. It cannot lie in her mouth to claim that C2 was uncomfortable being with her father when she was exposed, either through hearing it or observing it, to Ms. Bill’s clear antipathy toward Mr. MacGougan. C2 was very much aware of her mother’s anger toward her father, as she told Ms. DeVeto.
259I also find that, once C2’s resistance to going with her father became apparent to him with the events of August 17, 2020, things changed.
260While I accept Ms. Bill’s evidence, as did Mr. MacGougan, that she spoke with C2 about going to Mr. MacGougan’s for parenting time out of his presence, I also find that Ms. Bill did not expose C2 to significant repercussions when, after telling C2 that she needed to go with her father, C2 refused. I cite, as one example, Ms. Bill’s statement to Ms. DeVeto that she allowed C2 to visit a friend after refusing to go with Mr. MacGougan.
261My finding in this regard is supported by the evidence of both Ms. McHardy and Ms. DeVeto, who both commented on Ms. Bill’s near total failure to exercise parental authority by requiring C2 to go with her father or suffer real consequences for not doing so.
Factor #11 – Mr. MacGougan’s Response to C2’s Resistance Beginning on August 17, 2020
262I find that, for the most part, Mr. MacGougan attempted to rationally and reasonably address C2’s open resistance to going with him as of August 17, 2020. He endeavoured to engage Ms. Bill to help solve the problem. He came back each day and tried to persuade C2 to go with him for his parenting time. He accepted any lesser amount of time offered to him, such as taking C2 to a local park and taking her back to Ms. Bill’s when she asked to be returned, without issue. He asked Ms. Bill to go to therapy with him, which she refused to do.
263In my view, Mr. MacGougan’s efforts in the earliest days of C2’s open resistance to rectify the situation were measured and intended to stave off an escalation of a bad situation. Ms. McHardy did comment, however, that Mr. MacGougan did not always “behave appropriately with C2 during transitions,” which also increased her stress. I advert, specifically, to the events of November 27, 2020.
264Factors 10 and 11 converge in the comment made by Ms. McHardy that both parents needed to manage C2’s struggles with transitions, and that her behaviour would change only when she saw and understood both of her parents to be cooperating in having her transition to the care of her father.
265C2 had learned throughout her childhood that her parents were not capable of enforcing rules, thereby allowing her behaviour to get the desired outcome she wanted during transitions with her father. She had control and she exercised it.
Contributing Events Following C2’s Resistance of August 17, 2020
266It was only two weeks after C2 first openly exhibited her resistance to going to her father’s residence for a week of parenting time that Mr. MacGougan commenced his contempt motion against Ms. Bill. While I understand that he was likely very frustrated by both C2’s resistance to going with him and Ms. Bill’s failure to exercise parental authority, and while he was undoubtedly acting on legal advice, in my view this step only worsened an already bad situation.
267Ms. Bill received legal advice that she should remove herself from involvement in the difficult exchanges. She acted on that advice, meaning that she withdrew and never tried to exert meaningful parental authority thereafter to have C2 go with her father. While I acknowledge Ms. Samuels’ submission that when Ms. Bill saw that not exerting parental authority did not make exchanges go better, she ought to have changed course, her submission ignores the reality that to have acted against legal advice might have meant that Ms. Bill’s relationship with her lawyer might have been irretrievably damaged.
268I do agree with Ms. DeVeto that, in withdrawing from involvement with transitions, Ms. Bill “may have had good intentions” but her choice to do so was “diametrically opposed to what is necessary to effect meaningful change in the circumstances.”
269On the same point, Ms. McHardy noted that Ms. Bill’s “somewhat passive approach… removing herself as a defence against accusations that she was not doing something right” and failing to help Mr. MacGougan was “not good parenting or appropriate.”
270Thus, I find that Ms. Bill made the situation worse when she failed to exert her parental authority over C2 in a meaningful, sustained, and significant manner in an effort to have her go to Mr. MacGougan’s for parenting time. This includes her failure to become involved in the failed transitions at C2’s school.
271By this time, as signified by the troublesome transition of November 27, 2020, C2’s misbehaviour and resistance had reached disturbing proportions. Ms. Bill’s Motion to Change followed.
272While I am of the view that Ms. Bill did not foresee it occurring, C2’s resistance exploded far beyond anything she might have reasonably anticipated to arise from C2’s initial resistance of August 17, 2020. The extent of C2’s resistance ultimately forced Ms. Bill to concede at trial that she had become exhausted trying to address C2’s resistance. As a result, I find that she commenced her Motion to Change in November 2020 in an effort to avoid continuing to have to deal with C2’s resistance.
273Thus, while I do not attribute malicious intent to Ms. Bill in seeking to avoid having C2 continue to spend equal time with her father, as the parties had agreed in February 2020, that became her solution to the problem that she had created by harbouring negative views about the order of February 14, 2020, by her overprotectiveness of C2, by her continuing animosity toward Mr. MacGougan, by her failure to exercise parental authority over C2 about her obligation to visit with her father, and by her refusal to participate in counselling or therapy with Mr. MacGougan in an effort to resolve the problem that C2’s behaviour had become.
274Ms. Bill further worsened the situation when she repeatedly rejected suggestions that C2 receive counselling or therapy to address the anxiety that she was exhibiting about her parents’ separation.
How does all of this tie into whether there has been a material change in circumstances that affected or was likely to affect C2’s best interests?
275While C2’s resistance lasted for approximately one year, there was evidence predating the order that she was anxious about her parents’ separation, sought out her mother for comfort, and was in need of therapy.
276Despite this background, Ms. Bill consented to the order of February 14, 2020 which put into place the week about parenting-time regime. Therefore, notwithstanding whatever reservations she had about the wisdom of the order, Ms. Bill must accept that she entered into it voluntarily for the reasons she articulated.
277Change can be abrupt or evolutionary. I am mandated to consider the circumstances that existed at the time that Justice Campbell made his order on February 14, 2020. It is from those circumstances that material change must have occurred for me to be able to consider any changes to that order.
278Ms. Samuels made two submissions about this issue with which I specifically disagree.
279The first is that a period of one year does not meet the requirement that a change being relied upon to vary a final order is not material because it was “short-lived.” (Roloson v. Clyde, supra, at para. 49)
280The second is that there was no change at all because, on the evidence, C2 was going to Mr. MacGougan’s for his parenting time at the time of the original order without difficulty or opposition, and she is doing so today, albeit on a less frequent, court-mandated interim schedule.
281As to the first point, I disagree with Ms. Samuels’ submission that a year is not a substantial period of time when one is dealing with a child who was 6.5 years of age when she began to resist the parenting regime upon which her parents had settled. It was also neither “trivial” nor “insignificant,” terms also used by Justice Chappel in Roloson v. Clyde. It represented about 16% of C2’s total lifespan to that point, and almost two-thirds of the time that her reality included having separated parents who lived apart in separate residences.
282As to the second point, one cannot simply look at a starting point and an end point while ignoring events that occurred between the two. Relative stability may have existed before August 2020, and returned in August 2021, but there is no question that what occurred between those two dates did not exemplify relative stability. It is what occurred between the start and end dates that, in this case, constituted the material change in circumstances.
283Reviewing circumstances from the perspectives of the period between February and August 2020, as the starting point, and December 2020, when Ms. Bill commenced her Motion to Change, as the end point, C2 went from being a child who was anxious but compliant and causing little to no problem for her parents because they continued to cohabit following their separation, to being resistant to spending time with her father and almost uncontrollable over the issue.
284I find that the parties had not turned their minds to how either child might react to the sudden change in circumstances that occurred with the departure of Mr. MacGougan, his acquisition of a new residence, and him being the primary childcare provider for seven days in a row, with regular reliance on a third-party childcare provider when he had to work. The change in C2’s behaviour does represent a distinct departure from what Justice Campbell could have anticipated when he made his order in February 2020.
285Had Justice Campbell been told in February 2020 that C2 would vigorously, vociferously, and physically resist attending parenting time with Mr. MacGougan, he may not have made an order that had her immediately spending seven days with him every two weeks. To that point, I also cannot disregard the testimony of Paula DeVeto that a week-about schedule is generally not recommended for children as young as six, as C2 was in February 2020.
286As a result, I find that C2’s extreme resistance first evidenced on August 17, 2020, and continuing for months thereafter, “altered in a fundamental way” the ability of the parties to satisfy both the obligation and her need to have parenting time with her father and, as a result, did constitute a material change in circumstances which affected or was likely to affect her best interests.
287Having found a material change in circumstances to exist, I must consider the issues affecting C2 anew, with the governing principle being C2’s best interests.
Issue #1(b): If there has been a material change in circumstances with respect to either parenting time or decision-making responsibility that affects or is likely to affect the best interests of C2, what change or changes, if any, to Justice Campbell’s order should be made in her best interests?
Changes Sought by the Parties with Respect to Parenting Time for C2
288As I have already noted, Mr. MacGougan seeks a reversion to the equal parenting time for C2 that was set out in the original order, whether or not there has been a material change in circumstances. He also requests that the mid-week visit with the other parent be discontinued, that transitions occur at school, and that the day of the week on which transitions are to occur be changed from Monday to Friday.
289Ms. Bill does not agree with Mr. MacGougan’s request for a week on/week off parenting schedule for C2, citing Ms. McHardy’s conclusion that it would be too much for C2 and did not work previously. She thought that two overnights were “a lot” for C2. She did acknowledge, however, that, in addition to the successful trip to Mexico, there were no problems during a staggered week in August, 2022 when C2 was in the care of her father.
290Notwithstanding, Ms. Bill seeks an order that would have C2 in Mr. MacGougan’s care alternating weekends from Friday at 3:30 p.m. to Sunday at 7:00 p.m., with an additional overnight during the week, alternating between Tuesdays and Thursdays.
291Ms. Samuels points to authority that it is an error in law for me to not consider the so-called maximum contact principle (Rigillo v. Rigillo, 2019 ONCA 548) and that, if I depart from it, I must provide reasons for doing so (Phillips v. Phillips, 2021 ONSC 2480). That principle is found in s.24(6) of the CLRA, which now provides that, “In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.”
C2’s Best Interests
292In considering what order to make in C2’s best interests, I am to give primary consideration to C2’s physical, emotional, and psychological safety, security, and well-being, under s. 24(2) of the CLRA. I am also required to consider the other relevant specific factors set out in s. 24(3), the most pertinent of which, as they pertain to C2, in respect of the issue of parenting-time, are found in ss. 24(3)(a), (b), (c), (d), (h) and (g).
s. 24(2) - C2’s physical, emotional, and psychological safety, security, and well-being
293While the evidence from August to December 2020 and, to a lesser extent, January to August 2021, raised an issue about C2’s physical safety and well-being during the height of her physical resistance to leaving her mother’s side, that issue appears to have passed. What remains is consideration of her psychological safety, security, and well-being.
294One of the problems that this case has presented for me is that, on the issue of the order that I ought to make, I was presented with two narratives which were each attached to a different period of time. Ms. Bill’s case focused on C2’s initial resistance, with the potential for excessive emotional reactions being revived if she is now required to spend more time with Mr. MacGougan, despite evidence that she appears to be enjoying herself in his care. His, on the other hand, focused on C2’s calmer demeanour of recent times, without seeming to allow for the possibility that her emotional outbursts when events were unfolding in 2020 and 2021 had any legitimacy, being only the result of the actions of Ms. Bill.
295I am satisfied and I find that C2 now feels both physically and emotionally safe and secure in the care of each of her parents, since her resistance to being parented by her father has substantially diminished, if not disappeared.
s. 24(3)(a) - C2’s needs, given her age and stage of development, such as her need for stability
296C2 is now almost three years older than she was when her overt resistance to going with her father first became manifest. There is no evidence that she is not developing or maturing at the rate that would be usual for a child of her age. There is also no evidence that her emotions are now as volatile as they were in 2020-2021.
297As I have noted, anxiety has been a condition from which C2 has suffered from the time of her parents’ separation in 2019, and for which she will soon be receiving counselling on the recommendation of Dr. Bertoldi.
298The situations in both parties’ homes are stable.
s. 24(3)(b) - the nature and strength of C2’s relationship with each parent, her brother and grandparents and any other person who plays an important role in her child’s life
299The trial was about this issue, at least as it pertains to C2’s relationships with her parents. The evidence was clear that her relationship with Ms. Bill is strong, although there was legitimate debate about what lay at the heart of that relationship. The evidence further pointed to C2 having a good relationship with Mr. MacGougan, at least until the eruption of August 2020. More recent evidence suggests that the relationship has greatly improved, although there is an evidentiary void as to whether that improvement will stand as Mr. MacGougan’s parenting time is expanded in accordance with the order that I am making.
300The evidence also shows that C2 has a good relationship with C1. I heard little about C2’s relationship with her maternal grandmother before her death, and what I heard of her relationship with her paternal grandmother suggests that it was good. C2 also appears to have a relationship with her maternal aunts.
301There was also evidence that C2’s relationship with Justine Kelly and her children is good.
s. 24(3)(c) - each parent’s willingness to support the development and maintenance of C2’s relationship with the other parent
302I find that Mr. MacGougan has never suggested that C2’s relationship with Ms. Bill should not be maintained. I am satisfied that he is willing to support the development and maintenance of that relationship.
303Despite professing the contrary, the evidence is clear that Ms. Bill has not always supported C2’s relationship with Mr. MacGougan. My order will ensure that she now remains committed to her assertion that she supports C2 having a good relationship with her father.
s. 24(3)(d) – C2’s views and preferences, giving due weight to her age and maturity, unless they cannot be ascertained
304Mr. Skuce strongly relied on this factor in his submissions. He asserted that C2’s views and preferences have been available for all to see through her resistance to going to her father’s residence for a week at a time. He suggested that C2’s relaxed demeanour in her father’s care at this time could be explained by C2 “do[ing] her best to enjoy” an experience in which she would rather not have been required to participate. In my view, that submission is purely speculative.
305He also cited the decision of Justice F. Kristjanson in Medjuck v. Medjuck, 2019 ONSC 3254 in support of a child’s right to be heard in a proceeding affecting the child. In that case, Justice Kristjanson, on a motion in a high conflict case, ordered a Voice of the Child Report with respect to three of four children, ages 14, 12 and 8. The 14-year-old was estranged from the mother while the two youngest lived with both parents on a schedule that afforded the mother slightly more time than the father. All of the children had special needs. After citing several authorities which indicate the requirement that children have a voice in proceedings affecting them, Justice Kristjanson concluded, without further explanation that “in the circumstances” a Voice of the Child Report from the three children concerning access and residential schedule “would be of assistance to the court.” In reaching her conclusion, Justice Kristjanson also noted that, “[i]n many cases, including high-conflict cases, the key issue will be the weight to be given to the child's views in light of the child's age and maturity and the other factors which inform the judicial assessment of a child's best interests.”
306Ms. Samuels responded that there is plenty of evidence about C2’s views and preferences, both through what she told Ms. McHardy and Ms. DeVeto, as well as in her observed behaviours, particularly those of more recent origin, now that she is attending at her father’s residence without the resistance seen earlier.
307C2 has had many opportunities to speak about her views. Interestingly, she spoke of the parenting schedule on only one occasion, to Ms. McHardy, in a specific manner which suggests to me that she was very much aware of her mother’s position about an acceptable parenting schedule.
308Furthermore, Ms. McHardy remarked on C2’s inability to explain why she expressed a dislike of her father, leading Ms. McHardy to conclude that such an inability “might suggest that she is siding with her mother and taking on her mother’s view of her father.” That was at a time when C2 was resistant to visiting with her father. She now attends without issue.
309As Ms. McHardy specifically noted, C2 needed to be sent “a strong message that the time with her father is not up to her or open to her choice.” I therefore ask, given that these statements were made by the OCL clinical investigator whose recommendations Mr. Skuce urged me to accept, what would be learned, in the current circumstances, from a further interview with C2? Perhaps that she prefers the existing schedule over that which existed before? I see no need for a further report as C2’s views were in evidence, both from what she said and how she behaved, throughout the events under my consideration before the court.
s. 24(3)(g): any plans for C2’s care
310The evidence wis clear that each party plans to continue caring for C2 in accordance with whatever arrangement the court puts into place.
s.24(3)(h) - the ability and willingness of each person in respect of whom the order would apply to care for and meet C2’s needs
311I am satisfied that both parties are able to care for and meet C2’s physical needs. Both need some assistance with respect to addressing her emotional needs – Mr. MacGougan in recognizing them and Ms. Bill in managing them and helping her keep them in check, as necessary.
s.24(3)(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 C2
312While I address this particular factor more fully below in connection with decision-making responsibility, the real issue in this case as to this factor is not the ability of the parties to communicate and cooperate on matters affecting C2. They have that ability but exercise it poorly. The real issue is their willingness to do so. As I will note, Ms. Bill is the parent who requires greater assistance and direction in this regard.
Evidence of Ms. McHardy and Ms. DeVeto as to Changes to C2’s Parenting Time
Ms. McHardy’s Recommendations
313Ms. McHardy recommended that the parenting schedule for C2 be adjusted, with “the goal [remaining] movement towards a more consistent, healthy and positive father-daughter relationship.” To that end, she recommended a graduated, non-negotiable plan for C2 of some time with Mr. MacGougan, beginning with one night per week and alternating Saturdays, “progressing from there to more time as C2 adjusts and the family progresses via therapeutic intervention and becomes successful in gaining positive time for C2 and [her father].
314The ultimate parenting time goal recommended by Ms. McHardy for Mr. MacGougan at the time of her report was one evening during the week and alternating weekends from Saturday until Sunday evening at 7 PM, with C2 having time with her father on holidays and special occasions as mutually agreed between the parties on a fair and equitable basis, with any other parenting time to be mutually agreed upon by both parents.
315Ms. McHardy was clear that her recommendations were based on the facts as they existed in 2021. She agreed that her comment that a week-about parenting time arrangement would not work for C2 was specific to the time that she authored her report. She specifically said that she could not speculate about any updated recommendations.
316Her fear at the time she drafted the report was that C2 was not emotionally ready to go back to the parenting time in the original order. Her recommendations were not intended, however, to be seen as a reduction in Mr. MacGougan’s parenting time. If appropriate, the goal was to work back to the prior order.
317She also said that nothing that she observed indicated that a shared parenting arrangement could not be successful, but qualified that statement by also noting that there first needed to be therapeutic intervention. In her view, C2 needed to be ready emotionally in order for a shared parenting regime to be successful. To that end, she also said that Mr. MacGougan needed help to better understand how to be in tune with C2’s emotions.30
318When asked whether a “fulsome relationship” between father and child dictated a certain schedule, she responded that a father should not be a visiting parent. She reported that, in her view, the “standard alternating-weekend and one-evening-during-the-week” parenting-time arrangement “short-changes the parent who is its subject if the parent is otherwise appropriate.”
319She said that the goal of therapy should be to move back to a more complete relationship which was consistent with the principle of maximum contact. Her view was that C2 deserves an equal relationship with both parents.
Ms. DeVeto’s Recommendations
320At trial, on more than one occasion, Ms. DeVeto clearly stated that it was not her job to determine the parenting time schedule for the children. That was up to the parents. Or, in this case, the court.
321She did, however, acknowledge that, at the outset of her involvement with the parties, she was working toward a return to the parenting schedule that they had agreed upon in February 2020, despite having conceded that six-year-old C2 might not have been comfortable with the week-about schedule. That noted, she now saw no impediment to returning to the original arrangement. Where she wavered in her certainty was in how the 50/50 division of time might be structured.
322She also agreed that, notwithstanding the multiple disagreements, both between counsel and between herself and Mr. Skuce, it was not necessary for the successful restoration of a healthy relationship between C2 and Mr. MacGougan that the parenting-time regime consist of equal time for each party.
Comparing the Recommendations of Ms. McHardy and Ms. DeVeto
323In her written report, Ms. DeVeto had noted Ms. Bill’s persistence in wanting C2 to spend time with Mr. MacGougan on a reduced schedule consisting of alternate weekends and one evening during the week, as well as Ms. Bill’s “unwilling[ness]” to consider other possible parenting schedules for C2. She also commented on Ms. Bill “through her legal representatives continu[ing] to rely heavily on the graduated parenting schedule that was recommended by Ms. McHardy, writing that:
Ms. McHardy made recommendations for this family at a time when C2 had been refusing contact with Mr. MacGougan for an extended period of approximately one year. Ms. McHardy has not had the benefit of analyzing the implications of her recommendations based on the sudden and quite extraordinary change in C2's behaviour that immediately followed the temporary order. Additionally, Ms. McHardy has not been asked to examine the issues and events that have transpired over the past 8 months since filing her report with the Court. Should Ms. McHardy become reinvolved with this family to provide an updated report to the Court it is strongly recommended for her to be provided with a copy of this report.
324When challenged on her disagreement with Ms. McHardy’s recommendation that Ms. Bill should have primary care of C2 and Mr. MacGougan a lesser amount of parenting time, Ms. DeVeto professed to being “shocked” by Ms. McHardy’s “serious error”. It was her position that Ms. McHardy’s recommendations were not based on or consistent with the evidence Ms. McHardy referred to in her report. That noted, she also acknowledged that her and Ms. McHardy’s roles were different.
325Where Ms. McHardy and Ms. DeVeto differed on the parenting time issue for C2 was on the ultimate schedule. Mr. Skuce urged me to accept the recommendations of Ms. McHardy that Ms. Bill have primary care of C2. Ms. DeVeto found that recommendation to be seriously flawed, a position also advocated by Ms. Samuels.
326Ms. DeVeto was clear that C2 and her father can have a good, loving relationship on a basis of other than equal parenting time, while Ms. McHardy did not exclude equal parenting time, commenting that, if C2 was emotionally ready at some point to do so, the goal of therapy was to work back to an arrangement not unlike that which was found in the original order.
327While both saw a graduated plan of expanding C2’s parenting time with her father to be in her best interests (as did Justice Tobin), Ms. DeVeto complained of being thwarted in moving forward with any changes to the parenting time regime by the inability of the parties to agree on the parameters of her authority.
Conclusion with Respect to Parenting Time for C2
328I am concerned that, apart from the interim order of August 12, 2021, as expanded by Justice Tobin in March 2022, no further movement was apparently undertaken with a view to again expanding C2’s parenting time with her father.
329Why Ms. Bill might not have sought such an expansion is clear, because she did not want one. Apart from being unrepresented for a period, however, I fail to understand why Mr. MacGougan did not bring a motion to further expand his parenting time as circumstances improved between him and C2.
330I also share Ms. DeVeto’s frustration that the reconciliation process was thwarted by the parties’ inability to agree on her ability to recommend changes to C2’s parenting time. They should have done so. Their disagreement effectively thwarted either the progress or the evidence of failure that might have arisen from C2’s parenting time with Mr. MacGougan expanding as therapy progressed.
331I also cannot discount the evidence of Ms. DeVeto that having received Justice Tobin’s order, Ms. Bill began exercising a gatekeeping function because she did not wish parenting time to expand beyond that set out in the order of Justice Tobin. Thus, when this matter was before me for trial over one year later, I had no evidence about how C2 would fare in the longer-term under an order which afforded her greater parenting time with her father.
332What I do know is that C2 went to Mexico with her father and others for a week without problem, was again with him for a week in August 2022, without problem, and was seen by several witnesses to be comfortable in Mr. MacGougan’s care after Justice Tobin’s order was implemented.
333Whether that evidence mandates a return, either immediately or over time, to the former week-about time regime for C2 is difficult to discern, especially when I weigh against those considerations the evidence of Ms. Bill that, even under the current regime, which she asks that I incorporate into my order, C2 “gets a bit upset about the weekend visits”, while she is “fine” with the midweek visits. She expressed concern that, apart from a minor change to the existing interim order, adding a further evening per week for Mr. MacGougan, might again raise the issue of C2 “push[ing] back.”
334On that point, I agree with the evidence of Ms. DeVeto and the submission of Ms. Samuels that whether further changes in the parenting schedule lead to new resistance by C2 will depend on how Ms. Bill reacts to any such resistance and how she conveys it to C2.
335I also note Mr. Skuce’s submission that Ms. Bill will comply with whatever parenting order the court determines to be in C2’s best interests.
336While there needs to be a change by increasing C2’s time with Mr. MacGougan, I agree with Justice Tobin and Ms. McHardy that a gradual increase in her parenting time is indicated on the facts, rather than the sudden reversion to week-about parenting advocated by Ms. Samuels on behalf of Mr. MacGougan. The question, one year on, is what is meant by “gradual?” In my view, it does not now mean what it meant a year ago. Furthermore, while C2 did spend two separate weeks in the care of Mr. MacGougan after August 2021 without issue, I am not satisfied that those two weeks provide me with the evidentiary basis to move back to either the former parenting time arrangement or something close to it in a single step.
337I also agree with both Ms. McHardy and Ms. DeVeto, as the evidence also satisfies me, that, with a sincere demonstration of support by Ms. Bill and her encouragement of C2 to adapt to changes in her time with her father, C2 being in the care of each of her parents for half the time will be in her best interests as she continues to mature.
338I also agree with Ms. DeVeto that the real issue of concern at this point is how to structure C2’s time with her father. On that point, I also advert to Mr. MacGougan’s evidence that he would be open to something other than a strict week-about arrangement if he were told that such an arrangement was in C2’s best interests.
339Having regard to all of the evidence and my analysis, I conclude that a gradual, yet truncated, return to a fully shared parenting schedule is in C2’s best interests. However, the resultant schedule will not be fully week-about, to allow for the possibility that C2’s continuing emotional fragility is legitimate.
340I am also of the view and I find that it is not harmful to the relationship between C2 and C1 if they have parenting time with Mr. MacGougan based on different schedules. They are individuals with different temperaments. To treat them identically when formulating a parenting schedule would be to ignore their differences. The schedule which I have devised will allow them plenty of time together at the homes of both of their parents.
341Moreover, they have been following different parenting schedules now for over three years and I heard no evidence that doing so has harmed their relationship. The only possible harm to their relationship arose from C1’s frustration and exasperation with C2’s resistance to going with Mr. MacGougan for parenting time.
Issue #2(a): Has there been a material change in circumstances with respect to either parenting time or decision-making responsibility that affects or is likely to affect the best interests of C1?
342There is no dispute between the parties that, since the order of February 14, 2020, C1 has regularly and without any objection attended with Mr. MacGougan for his parenting time.
343I was told that the existing week-about schedule would better fit with certain activities in which C1 is involved if the transition date were changed from the Monday to a different day.
344While the effect of the day of the week chosen by the parties for the transition of C1 from the care of Ms. Bill to Mr. MacGougan has only arisen since the original order became effective, I do not regard the inconvenience that it engenders to be a material change in circumstances that affect C1’s best interests because I have no evidence that leaving the transition day as it was agreed upon has that effect.
345Similarly, I was asked to delete the mid-week overnight with the parent who is not caring for him, and to expand or change Christmas parenting time, statutory holidays, and vacations without being told what material change in circumstances had occurred with respect to C1. All I was told was that, at no time since the original order was made, had Mr. MacGougan exercised his right to have vacation time with the children.
346As Justice D. Chappel wrote inM.A.B. v. M.G.C., 2022 ONSC 7207, [2022] O.J. No. 5702 at para. 163.8, “As Gray J. stated in Kerr v. Easson, 2013 ONSC 2486 (S.C.J.), at para. 62, aff'd 2014 ONCA 225 (C.A.), "[p]arents are not perfect and they will make mistakes. The court will not assume jurisdiction to correct every mistake in the guise of a material change in circumstances."
Conclusion with Respect to Parenting Time for C1
347Accordingly, I find that, since February 14, 2020, there has been no material change in circumstances that affects or is likely to affect the best interests of C1 with respect to parenting time. Given that s. 29(1) of the CLRA prohibits me from changing the order as it pertains to C1 in the absence of a material change in circumstances, the parenting time provisions of the order of February 14, 2020 must remain in place for C1.
348My conclusion, however, does not preclude the parties agreeing to amend the original order as it pertains to C1. One change sought by Mr. MacGougan was to change the day of the week on which transitions occur for C1. When the parties review my order they will see that there are now many more areas where re-alignments can occur between the parenting schedule for C1 and C2, even while leaving in place different core parenting schedules. In fact, I strongly encourage them to consider such re-alignments and provide a mechanism for them to do so in my order. Where I am deprived of jurisdiction, they are not.
349However, since the original order was made on February 14, 2020, Mr. MacGougan has changed jobs. Thus, those parts of paragraphs 3, 4 and 5 in the original order pertaining to who has care of the children when he is working have become redundant and can be deleted from the order. I find that a material change in circumstances is not required to remove clearly inapplicable terms from an order based on current conditions, such as those related to parenting time tied to no-longer-existent employment. This is what the parties have been doing in any event, so I am merely giving effect to their practice at this point.
Issues #1(a) and #2(a): Having made findings about a material change or lack thereof with respect to both C2 and C1, has there been a material change in circumstances with respect to decision-making responsibility with respect to each of them, individually, affects or is likely to affect the best interests of each of them, individually?
Evidence - Generally
350The evidence led by Ms. Samuels on behalf of Mr. MacGougan on the issue of decision-making responsibility, generally, was to the effect that, despite the parties having agreed on joint decision-making responsibility in February 2020, Ms. Bill proceeded thereafter to make all major decisions without seeking Mr. MacGougan’s input or involvement, and then communicating her decision to him after the fact.
351Examples include decisions made by Ms. Bill with respect to:
a) registering C2 for cheerleading in July, 2020, skating in December, 2020, and Girl Guides in October, 2021, without first speaking to Mr. MacGougan about it, notifying him after the fact by text message;
b) registering C1 for spring hockey in April 2021, again without speaking with Mr. MacGougan in advance, and notifying him later; and
c) not informing Mr. MacGougan when the children are ill when they are in her care.
352Ms. Bill’s response to the criticisms levelled at her for not involving Mr. MacGougan were that:
a) the after-the-fact texts to Mr. MacGougan about C2 constituted notice to him and, if he had disagreed, he could have told her; and
b) C1 had played spring hockey for several years, so she expected that Mr. MacGougan would agree with her decision to register him as a matter of course.
353When asked about this issue, Mr. MacGougan said that when Ms. Bill informs him of her actions, he reminds her that they are to make these decisions jointly. He also said that, because the activities are for the children, he would not cancel them in any event.
Conclusion Regarding a Material Change Related to Decision-Making Responsibility for C2
354Given that I have already found that there has been a material change in circumstances with respect to parenting time that affects or is likely to affect C2’s best interests, I do not need to make a finding in that regard with respect to decision-making responsibility as it pertains to her. The decision-making responsibility provisions of the February 14, 2020 order are able to be changed in her best interests, if that is what I conclude, because decision-making responsibility, like parenting time, is a component of a parenting order.
355Notwithstanding that conclusion, Ms. Samuels pointed to other incidents where Ms. Bill acted unilaterally and deprived Mr. MacGougan of any input into decisions affecting C2, in particular. The evidence pertaining to the first is taken, with modification, from the parties’ Statement of Agreed Facts.
356The second and third, based on the evidence at trial, suggest rigidity and inflexibility on the part of Ms. Bill when it comes to circumstances involving Mr. MacGougan and the children, particularly C2. I rely on the latter two of these incidents to support my conclusion that Ms. Bill must participate in counselling to address her continuing animosity toward Mr. MacGougan.
Ms. Bill Enrolling C2 in a Medical Trial Without Informing Mr. MacGougan
357On October 26, 2022, Ms. Bill took C2 to an appointment in London with KGK Science and provided her unilateral consent for C2 to participate in a clinical research trial. Ms. Bill never disclosed to Mr. MacGougan that she had consented to C2 ingesting the investigational product, nor that C2 was doing so. Neither Dr. Fox nor the specialist treating C2 for a urinary tract condition were told about the study by Ms. Bill.
358Ms. Bill testified that C2 had asked her if she could participate in the study, the purpose of which was to determine whether the gummies, which contained either probiotics or were placebos, would reduce the chances of catching a cold or the flu.
359Additionally, on November 9, 2022 Ms. Bill took C2 to the KGK Science clinic in London during school hours and marked her late, causing C2 to miss a good portion of the school day. When Mr. MacGougan, having been notified of the absence, asked Ms. Bill why C2 was not at school, she indicated only that C2 was late without further explanation.
360Ms. Bill took C2 multiple times to KGK Science. She also completed daily “check-ins” via a "Run in Diary" for the clinical research trial until January 13, 2023, answering a series of daily questions about C2, including whether and at what time she had given C2 the investigational product. On some of those days, C2 was in the care of Mr. MacGougan, and the product was neither provided to Mr. MacGougan nor sent with C2, but Ms. Bill responded as if C2 had been with her and had ingested the product. Specifically, in the period between December 4 and 9, 2022, C2 was in the care of Mr. MacGougan in Mexico, while Ms. Bill indicated in the "Run in Diary" that C2 took the two gummies daily and answered questions regarding C2 for those days.31
361After Mr. MacGougan discovered C2's participation in the clinical research trial and questioned Ms. Bill about it, she messaged him through Our Family Wizard on January 14, 2023, writing, "I had a phone call from KGK yesterday claiming C2 was signed up for a study. Although l did take C2 to a primary appointment to see what the requirements were, I did not complete the study with her (because it was too complex of requirements). As a compromise, we did our own "study" at home so she could tell her friends she was involved and would be getting $100 to Amazon.”
362Ms. Bill ultimately acknowledged that she had completed the daily logs and had attended three quarters of the KGK appointments, for which she was paid $600.00. She only confirmed any of this when Mr. MacGougan learned of the study, had communicated with those conducting it, and had confirmed C2’s involvement.
363On January 18, 2023, she wrote to Mr. MacGougan advising that C2 had been withdrawn from the study, but she was unable to confirm that the statement was 100% accurate. The best she could do was to say that she likely sent an email to KGK before she sent her email to Mr. MacGougan.
364Ms. Bill said that she regretted not telling Mr. MacGougan that she signed up C2 for the study, pointing to their historical inability to communicate well about the children.32
365She also claimed that the incident presented a learning opportunity for her, the lesson learned being that she should communicate better with Mr. MacGougan at the front end so that the parties can make their decisions together. She said that if Mr. MacGougan had objected to the study upon being told of it - if he had been told of it - she would have withdrawn C2 from the study.
366Notwithstanding, she also testified that the whole issue had been blown out of proportion.33 I disagree. The whole exercise was a study in deceit.
Ms. Bill’s Use of a GPS Tracking Device
367At some point in or prior to April 2022, after C2’s school bus had delivered her late to Ms. Bill because it had been delayed by a motor vehicle accident, Ms. Bill placed a tracking device in C2’s backpack, ostensibly so that she could locate C2’s school bus if necessary.
368However, she did not just use it when C2 was in her care. She also used it on transition days, sending the tracking device in C2’s backpack to Mr. MacGougan’s residence without informing him. Ms. Bill asserted that the use of the device had nothing to do with monitoring Mr. MacGougan or his care of C2.
369When Ms. Kelly discovered the tracking device, she felt that Ms. Bill was violating the privacy of the members of the MacGougan household so she disabled the tracking device by removing its battery. It was returned to Ms. Bill with C2 at the end of Mr. MacGougan’s weekend.
370Despite the use of the device being discussed at a settlement conference on June 15, 2022, with Justice Aston noting that Ms. Bill agreed to Mr. MacGougan “parking” the tracker while C2 was to be in his care, Ms. Bill continued to use it as before, even though Mr. MacGougan repeatedly asked her not to do so when C2 was in his care.
371As the dispute continued, with the device being disabled by the removal of its battery when it was sent to Mr. MacGougan’s residence, in October, 2022 Ms. Bill placed the tracking device in a locked box, preventing removal of the battery. When Ms. Kelly refused to return the locked device directly to Ms. Bill, delivering it, instead, to staff at C2’s school for retrieval there by Ms. Bill, Ms. Bill thereafter attached the locked box containing the device to C2’s backpack with a combination lock. It could not be removed.
372After unsuccessfully trying to enlist Mr. Skuce’s help to have Ms. Bill stand down about the issue, Mr. MacGougan brought a motion to prohibit Ms. Bill’s use of the tracking device while he was caring for C2. On December 16, 2022, Justice Heeney made an order prohibiting Ms. Bill from sending tracking devices with C2 on parenting-time transition days. Calling the unresolved dispute about the use of the tracking device when C2 was with her father “a symptom of a power struggle between the parties” that was not in C2’s best interests, Justice Heeney labelled Ms. Bill’s continued insistence on its use “an unwarranted intrusion into” Mr. MacGougan’s privacy, undermining his role as a parent with joint decision-making responsibility. He ordered Ms. Bill to pay costs of $350.00.
373Ms. Bill offered no evidence at trial to explain at trial why she continued the send the tracking device with C2 when she transitioned into Mr. MacGougan’s care, why she escalated her efforts to thwart access to it for removal of the battery, or why she failed to accept any resolution short of a court order against her.
Aylmer Skating Gala & Niagara Hockey Tournament
374C2 also participated in a “skating gala” in Aylmer in early 2023. It occurred at the same time as a hockey tournament in which C1 was participating in Niagara Falls. Both children were in the care of Ms. Bill at the time and C2 had accompanied Ms. Bill and C1 to Niagara Falls. Ms. Bill had arranged for the parents of one of C1’s teammates to watch him after the game while Ms. Bill drove C2 to Aylmer to participate in the gala.
375Mr. MacGougan, not knowing of Ms. Bill’ s plans to manage the two events in two cities, asked Ms. Bill if she needed his help and she told him she did not.
376He and Ms. Kelly drove to Niagara Falls to watch C1 play hockey. He spoke briefly with C2 while at the arena. Ms. Bill then retrieved C2 and they left.
377Mr. MacGougan and Ms. Kelly then drove to Aylmer to watch C2 at the skating gala. His family and the extended family of Ms. Bill were also present. Mr. MacGougan had purchased flowers for C2. As she exited the ice, she was retrieved by Ms. Bill and taken for photos with her skating partners. C2’s skating coach took Mr. MacGougan to the dressing room, where he waited outside with the flowers for C2, who emerged from the dressing room after changing. Ms. Bill was holding her hand and walked away. Mr. MacGougan tried to speak to C2, following her as she was walking. She responded while looking back at him. He handed her the flowers and she left. He said that no one else in his family had the chance to speak with C2 before she left with her mother to return to Niagara Falls.
378Ms. Bill testified that she had told C2 that they had to leave as soon as she was done in order that Ms. Bill could be back in Niagara Falls in time to see the next of C1’s games, and because C2 and a friend who had accompanied her wanted to go to a water park.
379She also said that, because of her quick exit, her own sisters had not had a chance to speak with C2, and that Mr. MacGougan had not told her that he would be looking to speak with C2 that day.
380These incidents demonstrate a rigidity and inflexibility when it comes to circumstances involving Mr. MacGougan and the children, particularly C2.
381Unilateral decision-making was not, however, an action taken only by Ms. Bill, although she was clearly the worst offender of the two.
382Mr. MacGougan acknowledged taking C2 to the hospital in May 2020 and being with her in emergency for four hours, without notifying Ms. Bill until he had returned from the hospital. He justified his action on the basis that he was busy at the hospital “helping” C2.
383He further acknowledged that he had failed to inform Ms. Bill that Paula DeVeto would be at his house for an observational visit on October 30, 2021. He could not provide a reason for not notifying Ms. Bill of Ms. DeVeto’s attendance.
C1
384Apart from what has been noted about Ms. Bill having registered C1 in summer hockey in 2021 without first consulting with Mr. MacGougan, there was only the briefest of evidence about C1’s other circumstances. More specifically, I was told about Ms. Bill failing or refusing to discuss with Mr. MacGougan C1’s alleged, but otherwise undetailed, struggles in his French immersion program because of an attention deficit disorder.
Discussion
385At the heart of Ms. Samuels’ request for a change to decision-making responsibility was the submission that Ms. Bill too often makes decisions about the children, their activities, and their health care, leaving Mr. MacGougan without input from the outset, shifting to him the responsibility to oppose decisions she has already made. This would create a circumstance that, if followed by Mr. MacGougan, would place him in the position of countermanding a decision of which the children have likely already been informed and with which they may agree. Doing so would only serve to harm his relationship with the children. Thus, the approach taken by Ms. Bill, apart from not being in compliance with the order, has been grossly unfair to Mr. MacGougan.
386However, there are two other points of note about the issue of decision-making responsibility.
387The first is that it is obvious that these parties simply do not communicate about practically any aspect of their children’s lives. Both admitted as much, and both said that it was a situation that needed to change. I do find, however, that Mr. MacGougan is and has been much more open to communicating with Ms. Bill about the children and their needs than she has been with him.
388The second is that, according to the evidence, the parties, although primarily Ms. Bill, have never really exercised joint-decision-making since Justice Campbell ordered them to do so on February 14, 2020.
389I also find that Ms. Bill’s reluctance or refusal to communicate with Mr. MacGougan stems from her view that she knows what is best for the children, her continued resentment of him, and her anger about whatever issues have caused her to have such little regard for him as a person, generally, and as the father of the children, specifically.
390To address this, my order will include a term which addresses the need for Ms. Bill to seek professional assistance to help her overcome, or at least learn to manage in a way that does not involve the children, her negative feelings toward Mr. MacGougan.
Conclusion Regarding a Material Change Related to Decision-Making Responsibility for C1
391Based on the limited evidence, I find that Mr. MacGougan has not established a material change in circumstances with respect to decision-making responsibility that affects or is likely to affect the best interests of C1 so as to authorize me to vary the joint decision-making responsibility provisions of the order of February 14, 2020 as they pertain to him.
392While there is authority for the proposition that repeated failures to comply with a court order can form the basis for a finding of a material change in circumstances,34 in this case, it is my conclusion that the repeated and continuing failure by Ms. Bill to have complied with the joint decision-making provisions of the original order as they pertain to C1, mainly in the area of signing him up for summer hockey without first consulting Mr. MacGougan and failing or refusing to discuss the effect of C1’s ADHD on his continued attendance in a French Immersion program, do not form such a basis.
Issue #1(b): If there has been a material change in circumstances with respect to either parenting time or decision-making responsibility that affects or is likely to affect the best interests of C2, what change or changes, if any, to Justice Campbell’s order should be made in her best interests?
Issue 2(b): If there has been a material change in circumstances with respect to either parenting time or decision-making responsibility that affects or is likely to affect the best interests of C1, what change or changes, if any, to Justice Campbell’s order should be made in his best interests?
Positions of the Parties
393Mr. MacGougan seeks to vary the original order by having him be granted decision-making responsibility for both children in all areas covered by such an order - health, education, culture, language, religion and spirituality, and significant extra-curricular activities.
394Ms. Bill seeks to leave the original decision-making responsibility order in place, with one change. She requests that she be granted sole decision-making responsibility with respect to C2, a recommendation which, as will be seen, was made by Ms. McHardy.
Discussion – C1
395The radical change to the existing decision-making order sought by Mr. MacGougan with respect to C1 – the complete removal from Ms. Bill of decision-making responsibility for him – is, in my view, an overreach, and cannot be made given the lack of a material change in circumstances pertaining to C1 on this issue.
396That noted, Ms. Bill’s refusal to comply with the joint decision-making responsibility with respect to C1 can be addressed in other ways, such as rotating final decision-making between the parties in the event of an impasse, or having someone else make the decision, as I have done in my order.
397Since I have found no material change with respect to C1, I will consider Mr. MacGougan’s request only as it pertains to C2.
Discussion – C2
398In her written report, Ms. McHardy had recommended that Ms. Bill have “final decision-making authority” for C2, after consultation with Mr. MacGougan. Her rationale for doing so was that, because, if her recommendation with respect to parenting time were to be followed, C2 would be spending most of her time with Ms. Bill, she should be the person charged with making the major decisions affecting C2, but only after consulting in a meaningful way with Mr. MacGougan.
399I have already noted Ms. DeVeto’s vigorous dissent from Ms. McHardy’s recommendations pertaining to parenting time for C2. While not discussed specifically, I have no doubt that her dissent applies equally to Ms. McHardy’s recommendation concerning decision-making responsibility for C2.
400Mr. Skuce urged me to accept and act upon the recommendation of Ms. McHardy and grant Ms. Bill sole decision-making responsibility for C2.
401On the other hand, Ms. Samuels requested that I remove entirely from Ms. Bill the authority to make any decisions about C2 (as I have already discussed C1), reducing her status to one of consultative rights only.
402I reject the positions advanced by both parties.
403I agree with Ms. DeVeto on this point. Ms. McHardy’s recommendation was made at a time when circumstances were far different to what they are today. Ms. McHardy candidly noted that she made her recommendation because Ms. Bill was “C2’s primary parent and [had] been making the decisions regarding her.” However, she also allowed in her evidence that the temporary parenting-time arrangement that existed when she was involved with the file needed to change and could ultimately end up with both parties having C2 in their care equal amounts of time. If that were to occur, the rationale for her recommendation would clearly disappear.
404Furthermore, Ms. McHardy’s recommendation about decision-making responsibility for C2 being taken from Mr. MacGougan was not predicated on anything done by him. To penalize him by removing the right to be a full participant in decision-making responsibility for C2 would be, in that circumstance, manifestly unjust.
405It is also extremely ironic that Ms. Bill now claims that the parties need to work harder at working together. The parties agreed on joint decision-making responsibility in 2020. Ms. Bill rarely, if ever, complied with that component of the order. Ms. Samuels rightly points out that Ms. Bill has treated Mr. MacGougan as having even less than consultative rights, because of her consistent failure to seek his input into decisions pertaining to the children since February 14, 2020. That must stop immediately.
406But Ms. Bill’s failure to have complied with the obligation to make decisions jointly with Mr. MacGougan does not, in my view, justify the permanent stripping away from her the right to have an equal say in respect of major decisions affecting C2.
407As I see it, the fact that I have the authority to change decision-making responsibility does not mean that I must do so.
408Ms. Bill’s refusal to have complied with the joint decision-making provisions of the original order does, however, invite sanction under Rule 1(8).35 I have decided that Ms. Bill’s right to make medical decisions with respect to C2, and with respect to C1’s extracurricular activities, will be suspended for a period of time. Thereafter, the parties will revert to joint decision-making in respect of each.
409In making this time-limited order, I am satisfied that Mr. MacGougan, whose love for his children is undoubted, will make appropriate decisions with respect to the children, particularly any major medical issue that may involve C2.
410My purpose in suspending Ms. Bill’s equal right to make medical decisions with respect to C2 flows, firstly, from her actions in respect of the medical study and, secondly, is formulated to temporarily place her in the same position that she repeatedly left Mr. MacGougan - unable to make a final decision.
411My goal is to educate Ms. Bill about her legal obligations, rather than to punish her. I anticipate that, at the expiry of the period during which I have suspended her right to make a final decision respecting C2’s health care, she will better understand her obligation to share decision-making responsibility, as the parties originally agreed.
412Under my limited-scope order, Ms. Bill will still be better positioned than she left Mr. MacGougan, for three reasons:
a) firstly, her decision-making incapacity is limited to only one realm of decision-making responsibility for each child;
b) secondly, it is of limited duration; and,
c) thirdly, during the period of the suspension of her right to make decisions, Mr. MacGougan will be required to consult with her before he does so, something she did not do.
413Any change I make must be in C2’s best interests. Amongst the factors to be considered when making an order in a child’s best interests is that found in s. 24(3)(i) of the CLRA - the ability of each parent to communicate and cooperate with one another on matters affecting the children.
414As I have noted, communication, or its absence, lies at the heart of the parties’ inability to make decisions jointly. The reasons are different for each party. Ms. Bill refuses to communicate, at the right time or at all, with Mr. MacGougan. Most often, that means he cannot communicate with Ms. Bill, although he has also shown a willingness to act without having first spoken with her.
415Justice S.B. Sherr wrote the following about communication between separated spouses in L.B. v. P.E., 2021 ONCJ 114:
96Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. See: Griffiths v. Griffiths 2005 ONCJ 235, 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, 2009 CanLII 6423 (ON S.C.).
416The Ontario Court of Appeal noted in Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 that “[t]he fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered.” (at para. 11)
417There was evidence that the parties can and do communicate and cooperate with each other when necessary. That forms the basis for joint parenting. For example, at the outset of trial, the parties had crafted an interim order that addressed joint decision-making responsibility as it pertains to medical issues for C2. They have also arranged for her to receive counselling for anxiety, and arrangements were made to step outside the strict boundaries of Justice Tobin’s order to permit C2 to travel to Mexico for a week.
418Based on their demonstrated ability to cooperate, I have added provisions to the original order which procedurally augment the bare-bones clause pertaining to joint decision-making agreed upon by the parties in 2020. Include a clause setting out how, and by whom, a decision is to be made in the event of an impasse. The provisions apply to both children and are included in Schedule “A.”
Child Support and Other Claimed Amounts
419The original order of February 14, 2020 provided that no child support would be paid by either party, given the equal, shared parenting time regime, and the similarity of the parties’ incomes.
420In her Motion to Change issued in December 2020, Ms. Bill sought a change to child support, predicated on her request to have primary care of C2.
421In his responding Motion to Change, Mr. MacGougan sought to apply s. 9 of the Child Support Guidelines to the parties’ 50/50 parenting regime. In her draft order, Ms. Samuels would have that apply from April 1, 2023.
422Mr. Skuce also sought, in his draft order filed on behalf of Ms. Bill, that I make final an interim order of Justice Korpan dated February 24, 2023. That order addressed costs owed by the parties to each other, making them “void and unenforceable on a final basis.” Neither counsel even addressed this issue in their submissions, but I have included those costs cancellation provisions of Justice Korpan’s order.
423The order of Justice Korpan also indicated that the amounts owed by the parties to Ms. DeVeto was an issue for trial. I received no evidence on this issue, so I made no order with respect to that issue.
424The order of Justice Korpan also set interim child support commencing February 1, 2023. It appears to have set support on the basis of C2 being in the primary care of Ms. Bill and C1 being in their shared care on a 50/50 basis.
425Perhaps in anticipation of the possibility that C2 would, once again, end up in the shared care of the parties, Ms. Bill indicated that her income in 2022 was higher than usual because she had twice changed jobs that year. She expected her income in 2023 to be approximately $20,000.00 less than it had been in 2022, and asked that, if there was to be any change to child support, it be based on her estimated 2023 income rather than her 2022 income.
426Given the terms of my order and the commencement date when C2 will again be in the care of the parties on equal basis, albeit not executed on a straight week-about basis, I have decided that offset child support will commence on September 1, 2023 and will be based on Mr. MacGougan’s 2022 income (as his Financial Statement sworn in January 2023 was omitted from the Trial Record) and Ms. Bill’s estimated 2023 income as reflected in her Financial Statement of January 24, 2023 at $84,500.00. Future changes can be negotiated based on previous years’ incomes as they are known.
Other Issues
427Section 28(1)(c) of the CLRA provides that a court to which an original application for a parenting order is made under s. 21, may make several orders, including “any additional order the court considers necessary and proper in the circumstances…”
428Section 29(1) of the CLRA is the provision which prohibits a court from making an order which varies a parenting order without first finding 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.
429In M.A.B. v. M.G.C., supra, at paragraph 152, Justice D. Chappel wrote that “the types of provisions that [a court] can incorporate into a parenting order” under s, 28(1) of the CLRA “apply equally in variation proceedings.”
430As I interpret what Justice Chappel wrote, if the court has found there to be a material change in circumstances, the types of provisions that can be included under s. 28(1) of the CLRA in an original order can also be included in a variation order. However, before those changes can be made, a material change must be found to have occurred.
431Notwithstanding her submission that there was no material change in circumstances for either child, Ms. Samuels presented me with a draft order comprising fifty-four paragraphs. Apart from terms pertaining to parenting time and decision-making responsibility, which are greatly expanded in the draft order, there were a number of clauses greatly expanding or adding to other clauses in the original order.
432When asked about her draft order, Ms. Samuels responded that the changes she is seeking, other than with respect to child support, comprise incidents of parenting.
433Some of the matters touched upon in Ms. Samuels’ draft order, such as who has control of the children’s personal documents, were not discussed, or even raised at trial. Some others were, such as vacation and holiday time, but no claim to vary those provisions was pleaded, despite Mr. MacGougan having been given leave to amend his Response to Motion to Chage, which he did, and in which he set out some specific changes that he sought to be made to the existing order.
434Mr. MacGougan did testify that he had never tried to exercise the holiday parenting time allocated to him under the order of February 14, 2020. He also spoke of some difficulty with respect to the allocation of parenting time on statutory holidays. Ms. Bill did not specifically address either of these in her evidence and neither was sought to be changed by Mr. MacGougan.
435Having noted these matters, I agree, in principle, with Ms. Samuels that it would be preferable that other changes be made to the order to address matters such as parenting time on statutory holidays and over the Christmas holiday period beyond the days specifically addressed in my order. However, in the absence of a pleading seeking such changes, no specific evidence addressing them having been called at trial, and having heard no submissions on these issues, I feel it appropriate only to strongly urge the parties to come to an agreement about them, and to have them apply equally to both children. Any agreement they may reach for further changes, whether through counsel or otherwise, may be directed to me by way of a Consent Motion to Change, as a basket motion.
436Still others of the terms presented by Ms. Samuels might best be described as general terms regulating parental behaviour which were not included in the first order but which might be seen as necessary to address issues raised in the evidence at trial. I have considered them and, to the extent that such terms are of common application to the parties directly, rather than the children, I have added them to the order.
437Another difficulty presented by Ms. Samuels’ draft order is that some of its changes would pertain equally to C1 and C2. However, s. 29(1) of the CLRA prohibits me from making changes that pertain to C1 because I have found no material change in relation to either parenting time or decision-making responsibility with respect to him. Given that, I do not see how I can, and I was presented with no authority that would permit me to, change any of the incidents of parenting relating to C1, such as carving out exceptions to the regular parenting time schedule to allow for parenting time on statutory holidays or vacations.
438Accordingly, in drawing the terms to include in my final order, I have addressed only those parenting provisions proposed by Ms. Samuels as they might pertain to C2. Child support, of course, applies in respect of both children.
Justice T. Price
Released: August 10, 2023
SCHEDULE “A"
Except as provided herein, and subject to any written, signed agreement by the parties or a court order that provides otherwise, the Final Order of Justice S. Campbell dated February 14, 2020 (hereinafter, “the Campbell order”) continues to apply with respect to the children C1, born [DOB] (hereinafter, C1) and C2, born [DOB] (hereinafter, C2). 36
Paragraph 1 of the Campbell order is amended to read as follows:
Subject to the provisions of this order, the parties shall continue to have shared care of and decision-making responsibility with respect to the children C1, born [DOB] (hereinafter, C1) and C2, born [DOB] (hereinafter, C2).
- Paragraph 2 of the Campbell order is amended as follows:
a) The existing paragraph 2 is amended by being re-numbered as 2(a), and the words “the children” are to be replaced by “C1”.
b) Commencing August 21, 2023 and continuing for a period of 4 weeks, the parties shall share parenting time with C2 on a weekly basis in accordance with a 2-2-3 schedule, beginning with C2 being in the care of the party who did not have C2 in their care on August 20, 2023 for the initial 2-day period, with parenting time thereafter alternating between the parties in accordance with the said 2-2-3 schedule.
c) Commencing September 18, 2023, the parties shall share parenting time with C2 on a bi-weekly basis in accordance with a 2-2-5-5 schedule, beginning with C2 being in the care of the party who did not have C2 in their care on September 10, 2023 for the initial 2-day period, with parenting time thereafter alternating between the parties in accordance with the said 2-2-5-5 schedule.
d) The parties shall both inform C2, preferably while together, that the changes to her parenting time were agreed to by them, that they both support the changes, and that having the parenting time with her father upon which they have agreed is in her best interests.
e) While the parties may agree, in writing signed by them, to further changes to the parenting time schedule for C2 set out Paragraph 2(a) and (c), any such change shall be consistent with her best interests and divide her time equally between the parties on a bi-weekly basis.
f) The care of C2 shall transfer from one party to the other at 8:30 a.m. on non-school days and at 9:00 a.m. or the beginning of school hours, on school days. Unless the parties agree otherwise, in writing, transfers shall occur at C2’s school on school days and at the home of the receiving party or, as applicable, the location of any summer camp which C2 is attending, on non-school days.
g) When Candace Dianne Bill (hereinafter, Candace) is transferring the care of C2 to Campbell William MacGougan (hereinafter, Campbell) at his residence, she shall limit transition interactions with C2 to one hug and one kiss.
h) There shall be no make-up parenting time for that missed by either party unless agreed to by the parties.
- Paragraph 3 of the Campbell order is hereby deleted and the following subparagraphs, numbered to begin with 3(a), are substituted:
a) Subject to the following subparagraphs, Campbell and Candace shall continue to share decision-making responsibility in respect of significant decisions about the well-being of C1and C2, including with respect to their health, education, culture, language, religion and spirituality, and significant extra-curricular activities.
b) Notwithstanding Paragraph 3(a) hereof, for a period of 6 months from the date of this order, (upon the expiry of which this clause shall expire), Campbell shall have sole decision-making responsibility in respect of significant decisions about C2’s health and in respect of significant decisions about C1’s extracurricular activities. Before making any such decision during that period, Campbell shall:
i) advise Candace, in writing, if possible, of an issue which requires a decision as soon as he knows that such a decision is required to be made;
ii) inform Candace, immediately, of the name and contact information of
(1) any physician or other professional who has been involved with C2 concerning the issue that requires such decision, and
(2) any person who can provide her with additional information with respect to the extracurricular activity for C1,
in order that Candace may obtain such information as she might require to provide input into the decision to be made by Campbell;
iii) seek the input of Candace to the decision required to be made and, if provided, give it serious consideration; and
iv) advise Candace, in writing, of the decision that he has made as soon as possible after the decision has been made.
c) Immediately, with respect to C1, and upon the expiry of paragraph 3(b) hereof and its associated subparagraphs with respect to C2, neither party shall schedule any appointments with any health care practitioner without notice to the other party.
d) Subject to the provisions of Paragraph 3(b), in the event that the parties fail to reach a significant decision about the well-being of the children with respect to health, education, culture, language, religion and spirituality, and significant extra-curricular activities, the decision shall be made:
i) in the case of a child’s health, in accordance with the recommendation of his or her physician;
ii) in the case of a child’s education, in accordance with the recommendation of his or her teacher;
iii) in the case of C1’s culture, language, religion and spirituality, and C2’s significant extra-curricular activities, by Campbell in odd-numbered years and by Candace in even-numbered years; and
iv) in the case of C2’s culture, language, religion and spirituality, and C1’s significant extra-curricular activities, by Candace in odd-numbered years and by Campbell in even-numbered years.
e) In situations where the provisions of Paragraphs 3(d)(i) or 3(d)(ii) apply, unless they are asked by the person whose recommendation is to be followed if that person is, in effect, the default decision-maker, the parties shall not disclose that fact to the person. If party does disclose this fact to the person and, as a result, the person declines to make a recommendation, the decision shall be made by the party who did not make the disclosure to the person.
f) Each party shall promptly advise the other of any decision that she or he has made under paragraphs 3(d)(iii) and 3(d)(iv).
g) Within 60 days of the date of this order, the parties shall meet jointly with the principal of C1’s school, or such person as the principal may designate, to discuss the advisability of C1 continuing to participate in a French immersion program. Any decision to be made by the parties thereafter with respect to that issue shall be made in accordance with the provisions of Paragraph 3(d)(i) hereof.
h) With respect to the children's education:
i) both parties may attend all school functions regardless of the parenting time schedule;
ii) the parties will attend parent-teacher meetings individually, or together if both parties consent;
iii) each party will obtain their own school calendar and school notices;
iv) if the school is unable to accommodate individual meetings /appointments for each party, they shall jointly attend any such meeting and/or appointment; and
v) each party shall share any and all unique documents regarding the children by photographing or scanning the documents and then emailing them to the other party only if such documents are not otherwise directly available to either party, only if the documents are not sent to each party by their teachers by email or if the parties cannot access the documents online by setting up their own accounts if available.
i) Both parties may attend all of the children's extracurricular activities regardless of who is caring for the children or either of them may at the time of the activity.
j) The parties, each:
i) may make inquiries and jointly be given information by the children's care providers, teachers, school officials, doctors, dentists, health care providers, summer camp counsellors, extra-curricular activities or others involved with the children; and
ii) have an obligation to list both parties on any and all medical information, registration forms and government documentation, and must list both parties as emergency contacts on any forms when such information is requested.
This provision shall constitute an irrevocable direction to any such service providers to release all information and records concerning the children without authorization from the other party. If, for whatever reason, this paragraph itself is not sufficient authority, the parties will cooperate and execute any required authorization or direction necessary to enforce the intent of clause.
- Paragraph 4 of the Campbell order is hereby deleted and the following substituted:
If either child needs emergency medical care while with or in the care of one party, that party will promptly attend to the emergency and then notify the other party as soon as possible of the emergency.
- Paragraph 5 of the Campbell order is hereby deleted and the following substituted:
If either child falls ill while at school, the party in whose care the child was scheduled to be at the end of the school day shall be responsible for retrieving the child from school.
- Paragraph 6 of the Campbell order is hereby deleted and the following substituted:
Subject to Paragraph 7 and its subparagraphs, or any written agreement between the parties, signed by both, providing otherwise, the parties shall maintain the regular parenting schedule during the December school holiday.
- Paragraph 7 of the Campbell order is hereby deleted and the following substituted:
Notwithstanding Paragraph 6, but subject to any written agreement between the parties, signed by both, providing otherwise:
a) C1 shall be in the care of Candace yearly from December 24 at 2:00 p.m. until December 25 at 2:00 p.m.; and
b) C1 shall be in the care of Campbell yearly from December 25 at 2:00 p.m. until December 26 at 7:30 p.m.
c) In odd-numbered years:
i) Candace shall have C2 in her care from December 24 at 2:00 p.m. to December 25 at 2:00 p.m., and from 2:00 p.m. on January 1 of the even-numbered year immediately following until 9:00 a.m. (or, if applicable, the start of school) on January 2 of the even-numbered year immediately following; and
ii) Campbell shall have C2 in his care from 2:00 p.m. on December 25 until 7:30 p.m. on December 26 and from 2:00 p.m. on December 31 until 2:00 p.m. on January 1 of the even-numbered year immediately following.
d) In even -numbered years:
i) Campbell shall have C2 in his care from December 24 at 2:00 p.m. to December 25 at 2:00 p.m. and from 2:00 p.m. on January 1 of the odd-numbered year immediately following until 9:00 a.m. (or, if applicable, the start of school) on January 2 of the odd-numbered year immediately following; and
ii) Candace shall have C2 in her care from 2:00 p.m. on December 25 until 7:30 p.m. on December 26 and from 2:00 p.m. on December 31 until 2:00 p.m. on January 1 of the odd-numbered year immediately following.
- The following changes are made to Paragraph 8 of the Campbell order:
a) the words “Notwithstanding the above schedule” are deleted and replaced with: “Subject to any written agreement between the parties, signed by both, providing otherwise;”
b) the words “on 60 days prior written notice to the other, suspend the other parent’s entitlement to mid-week access to facilitate” are replaced with “take”; and
c) the following sub-paragraphs are added to Paragraph 8 of the Campbell order:
i) in odd-numbered years, Campbell shall advise Candace, first, of his selected dates for vacation, if any, by May 15, providing the dates of the vacation or vacations, if known at that time; and
ii) in even-numbered years, Candace shall advise Campbell, first, of her selected dates for vacation, if any, by May 15, providing the dates of the vacation or vacations, if known at that time;
iii) in each year, the party having the second right to select vacation days shall notify the other if they wish to exercise either of these options and, if so, which, by June 15, providing the dates of the vacation or vacations, if known at that time;
iv) in the event of a conflict in chosen dates, barring an agreement by the parties to adjust the vacation schedule of either, the dates selected by the party having the right of first choice in a year shall govern; and
v) The standard schedule of access for each child shall recommence following each extended vacation period as if the standard schedule of access had not been interrupted.
vi) If either party plans a vacation (with "vacation" defined as any interprovincial travel, international travel, or a trip within the Province of Ontario lasting more the 72 hours) with the children, that party will give the other a detailed itinerary at least 30 days before it begins, including the name of any flight carrier, and flight times, and/or train details, accommodation information, including address and telephone numbers.
vii) The parties will provide each other with a notarized travel letter authorizing the children to travel with the other party when such letter is reasonably required. The consent and notarized travel letter, when needed, shall be provided no later than 10 days before any proposed travel by the other.
viii) If either party plans a vacation without the children, that party will give the other a telephone number where he or she can be reached in case of emergency or if the children wish to contact that party.
Paragraph 9 of the Campbell Order continues to apply with respect to both children.
Paragraph 10 of the Campbell order is hereby deleted and replaced with the following:
a) If either party proposes to relocate outside of Elgin County, that party will give written notice at least 60 days before the proposed change to the other party of:
i) The date on which the change is expected to occur;
ii) The address of the new residence; and
iii) The contact information of the moving party and the children, as the case may be, including any new telephone number(s).
- Paragraph 11 of the Campbell order is deleted and the following subparagraphs, numbered to begin with 11(a), are substituted:
a) Candace shall have possession of C1’s personal identification documents, including but not limited to his birth certificate, passport, and health card.
b) Campbell shall have possession of C2’s personal identification documents, including but not limited to her birth certificate, passport, and health card.
c) Should either party require the use of an original document in the possession of the other for travel or other purposes, the party in possession of the original document shall provide the relevant document to the other party, who shall return any original documents at the first access exchange immediately after the need for the use of the document(s) has expired.
d) If either party loses or damages any original personal identification document of either child, he or she shall be responsible for the replacement cost of such document.
e) The parties shall equally share the costs of the children's passport applications/renewals, with the party holding the original of the expiring passport to complete the application for its renewal, and the with the consent/ signature of the other party to be provided within 7 days of his receipt of it being requested in writing by the party applying.
f) If either party fails or refuses to apply for a replacement passport or to consent to the other party doing so, the other party shall be entitled, after having given the refusing party seven days notice to comply with the provisions of this paragraph, to apply for the passport without the consent or signature of the refusing party.
- Paragraph 12 of the Campbell order is deleted and the following substituted:
The parties shall continue the process, together with C2, of family reconciliation therapy with Paula DeVeto or such other therapist, not including Jenna Hill, as she recommends, who shall, subject to his/her own professional rules and best practices, have the ability to manage, direct and set processes for her therapy or, if required, terminate his/her services. The parties shall:
a) ensure that C2 is involved in the process;
b) engage fully in the process in good faith and with a view to its successful conclusion and, in that regard, follow the directions of the therapist/counsellor on a timely basis;
c) attend all therapy sessions and other events/sessions on a timely basis as directed by therapist/counsellor;
d) not use the family therapy process for purpose of airing or debating past grievances. To that end, the family therapist/counsellor shall be responsible for guiding the process with a future-focus informed by past difficulties;
e) attend any case management meeting initiated by the therapist/counsellor if they determine their process is being frustrated or impaired by the actions or inaction of any party or the child(ren);
f) equally share the cost of such counselling services after the application of either’s extended healthcare benefit coverage.
- Paragraph 13 of the Campell order is deleted and the following substituted:
The parties shall exercise all required guidance, boundaries, incentives and consequences in their parenting of the child(ren) to ensure compliance with the terms of all Court Orders concerning parenting time and therapy contact and the parties shall never accept any assertion by the child(ren) that he/she/they do not, or will not, comply with the terms of such Court Orders.
- Paragraph 14 of the Campbell order is deleted and the following substituted:
The parties shall not undermine, in any way, subtle or overt, the parenting of the other party.
- Paragraph 15 of the Campbell order is to be re-numbered as Paragraph 22, and the following substituted for Paragraph 15:
Candace shall, within 120 days of the date of this order, begin counselling to address her continuing negative feelings and anger toward Campbell. She shall provide Campbell with evidence that the therapy has commenced, preferably in the form of a letter from the counsellor which simply confirms that Candace has begun to comply with her obligation under Paragraph 15 of this order.
- Paragraph 16 of the Campbell order is to be re-numbered as Paragraph 23, and the following substituted for Paragraph 16:
Campbell shall ensure that Justine Kelly is at no time involved nor does she participate in co-parenting decisions that must be made between him and Candace with respect to C1and C2.
- Paragraph 17 of the Campbell order is deleted and the following substituted:
Neither party shall change the names of the children or either of them without the consent of the other or a court order obtained on notice to the other party.
- Paragraph 18 of the Campbell order is to be re-numbered as Paragraph 24, and the following substituted for Paragraph 18:
The parties shall communicate by Our Family Wizard any important information needed by the other party when the children are in their care, such as any medication to be dispensed or illnesses that occurred while in either parent's care, upcoming events or scheduling notices such as summer vacation times. Email communication shall be private, respectful, child-centered and not include personal commentary or opinions about the other party. If a response is required, it shall be provided within 36 hours.
- Paragraph 19 of the Campbell order is to be re-numbered as Paragraph 25, with all references in the subparagraphs to the number 19 being changed to 25, and the following substituted for Paragraph 19:
Both Campbell and Candace shall:
a) prefer the children's interests to their own and at all times keep the best interests of the children in mind;
b) encourage the children to have a good relationship with each other and with each party. In that regard, Candace, specifically, shall at all times work to foster a good relationship between C2 and her father;
c) exchange information and communicate about the children no more than once per day, except in the case of an emergency;
d) not share communication or adult discussions with the children or third parties without the other's consent;
e) not expose the children to intra-family adult conflict;
f) refrain from making disparaging or negative remarks to the children about the other party, their extended family, friends or partners in front of, or within earshot of, the children, and each party shall monitor, discourage and correct inappropriate comments about the other party or their extended family made by any other adults in front of, or within earshot of the children at all times;
g) refrain from discussing with the children, or with a third party in the presence of the children, present or past legal proceedings, issues between the parties in any such legal proceedings or any conflicts between the parties; and
h) ensure that all information or documentation pertaining to the parties’ relationship with each other, including all personal correspondence or email communications in respect thereof, is not accessible to the children.
- The following paragraphs are to be inserted in the Campbell order as Paragraph 20, numbered to begin with 20(a):
a) Commencing September 1, 2023, and on the first day of each month thereafter until support is no longer payable for the benefit of each of C1and C2, the parties shall pay child support in accordance with s. 9 of the Child Support Guidelines as follows:
i) Campbell shall pay Candace the sum of $1,025.00 based on his estimated 2022 income of $67,235.00;
ii) Candace shall pay Campbell the sum of $1,277.00 based on her estimated 2023 income of $84,500.00; and
iii) in the result, the party with the higher income shall pay the set-off amount to the party with the lower income. For the period until July 1, 2024, that means that Candance shall pay set-off child support to Campbell in the amount of $252.00 per month.
b) The parties shall exchange their Income Tax Returns, including all schedules and attachments, and Notices of Assessment/Reassessment annually May 31. With this income information, the child support provisions above shall be adjusted annually, with the adjusted amount to be paid on the first day of each month commencing on July 1 of each year.
c) All child support shall be paid directly between the parties rather than through the Family Responsibility Office (FRO), unless either defaults in payment and does not pay within fourteen days of receiving written notification from the other, at which time the Respondent/Applicant may file the final order with the FRO for enforcement. Campbell shall provide a signed Notice of Withdrawal to Candace and the FRO within seven days of the issuance of the final order herein in order to give effect to this paragraph.
- The following paragraphs are to be inserted in the Campbell order as Paragraph 21, numbered to begin with 21(a):
a) Subject to sub-paragraph b), special expenses for C1and C2, as defined in section 7 of the Ontario Child Support Guidelines, shall be shared by the parties on the following basis:
i) Each party must provide the other with at least three weeks’ written notice of the proposed special or extraordinary expense and both parties must consent to the expense in advance before either is obligated to contribute to the cost of the same. Neither party shall unreasonably withhold their consent to a proposed expense.
ii) The requirement to obtain consent does not apply to routine and/or basic medical, dental, and healthcare expenses, but both parties shall be required to consent to all other section 7 expenses for the children.
iii) The parties shall pay their proportionate share of the special expenses within fourteen (14) days of being provided with proof of the expense by the other party. If a party does not pay section 7 child support within fourteen days, it shall be collected by the Family Responsibility Office.
b) Each party shall be responsible for the cost of any substitute care giver(s) during their parenting time.
c) It shall be the responsibility of the party with whom the children are residing to transport the children to and from their academic, extracurricular and social activities.
d) The parties shall provide each other with written receipts and/or acknowledgement of child support payments, including any contributions towards the children's section 7 expenses, at the time payments are received.
Paragraphs 20 through 27, inclusive, of the Campbell Order are to be renumbered as paragraphs 26 through 33.
Paragraphs 28 to 31 of the Campbell Order are deleted.
Paragraphs 1, 2 and the first sentence of Paragraph 3 of the interim order of Justice Korpan dated February 24, 2023 are made final for the periods covered by the said order.
Having received no evidence about amounts said to be owed by either party to Paula DeVeto and with no claim having been made in that regard, no order is made as to that subject.
All other claims made by either party against the other are hereby dismissed.
Unless this support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the Order shall be paid to the Director, who shall pay them to the person to whom they are owed.
The parties are strongly encouraged to settle the issue of costs. If they cannot, or are instructed to pursue costs, they may forward written submissions, not to exceed five typewritten pages, in Times New Roman 12-point font, at a line spacing of 1.5, to me through the Family Court Trial Coordinator at St. Thomas.
The parties’ submissions shall be accompanied by any offers to settle, whether accepted or not, together with a Bill of Costs identifying all persons who worked on the matter, their position, the rate being charged for their services, and a complete and clear description of the work undertaken by each person for whom a claim for costs is being made.
Each party shall also indicate what they have billed their own client for this matter for the period for which costs are being sought.
The submissions of Mr. Skuce are to be delivered by September 8, 2023. The submissions of Ms. Samuels are to be delivered by September 29, 2023.
If no submissions are received by September 29, 2023, costs shall be deemed to have been settled, neither party shall be entitled to an order for costs, and no such order shall thereafter be made.
COURT FILE NO.: FC157/19-02
DATE: 2023/08/09
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Campbell William MacGougan
Applicant/Responding Party
- and -
Candace Dianne Bill
Respondent/Moving Party
REASONS FOR JUDGMENT
T. PRICE, J.
Released: August 10, 2023
Footnotes
- As found by Justice Tobin in MacGougan v. Bill, 2022 ONSC 2248, paragraphs 22, 23
- The parties signed and filed a lengthy Statement of Agreed Facts. Some of the agreed facts are set out in this judgment, either woven into the narrative or as footnotes.
- While Mr. MacGougan, Ms. Bill, and C2 later attended an intake meeting with Dr. Thornley, the Covid-19 pandemic began before the parties or C2 could attend any further meetings, so none occurred.
- Bungy is C2’s nickname.
- This was the same physician with whom the parties had met initially, prior to the Covid-19 pandemic.
- When it was suggested to Ms. Bill by Ms. Samuels that she ended the call because she did not agree with what was being suggested about ways to make the transitions easier, Ms. Bill denied that being the case. She said that she was stressed because she had felt under attack by Mr. MacGougan during the call. She testified that she had later written to the principal to apologize for how she had handled the situation.
- Ms. Bill testified that her lawyer had recommended that she cease actively trying to get C2 to go with her father and begin taking a more passive approach.
- C2 attended twenty-three sessions with Ms. Haas between September 19, 2020 and June 5, 2021.
- During her disclosure call, Ms. McHardy said that the parties should immediately implement a non-negotiable schedule of parenting time for Mr. MacGougan, starting with 6 hours on alternating Saturdays and one evening per week from 3:30 p.m. to 7:30 p.m. She also recommended Paula DeVeto as the reintegration therapist whom the parties should consult.
- Ms. DeVeto’s appointment was not immediate, however. In July, Mr. MacGougan’s then-counsel had written Mr. Skuce to ask if Ms. Bill’s position was to not engage Ms. DeVeto without a change to the interim parenting-time order. Mr. Skuce responded, indicating an intention to bring a motion to alter the terms of Mr. MacGougan’s parenting-time, but he otherwise did not address increasing Mr. MacGougan’s parenting-time or how to proceed with securing Ms. DeVeto’s services.
- Ms. Kelly first met the children in June 2021. She and her two children, ages 9 and 6 years, began to cohabit with Mr. MacGougan in August 2021.
- The fact that Ms. Bill said this suggests that she was not being very diligent in visiting negative consequences on C2 for refusing to go with Mr. MacGougan, as she had testified to at trial
- Because Justine Kelly had accompanied Mr. MacGougan to the meetings, Ms. Bill’s sister had attended with her.
- By all reports, the trip was a success. Additionally, while C2 spoke once by telephone with Ms. Bill, despite plans having been made for her to be returned early if she requested, she made no such request.
- Ms. Bill explained that she would not allow Ms. DeVeto to speak with her personal counsellor because she wanted that information to remain confidential.
- The Statement of Agreed Facts included three paragraphs detailing the dispute between Mr. Skuce and Ms. DeVeto. It seems to have been centered on whether, from Mr. Skuce’s perspective, Ms. DeVeto could criticize or comment on the OCL report, whether she could recommend a specific parenting time regime, whether she could purport to speak for C2, which was said by Mr. Skuce to be the role of Ms. McHardy, and whether she could address issues that involved the best interests of C1 Ms. DeVeto’s response to Mr. Skuce’s concerns are also noted. In the result, both Mr. Skuce and Ms. DeVeto indicated that they were not prepared to “negotiate” the terms of Ms. DeVeto’s engagement.
- There was no evidence of any such comment being made by Ms. Bill to C2 after Justice Tobin made his order in August 2022.
- Mr. MacGougan testified that he had contacted the Children’s Aid Society in May 2022 to say that Ms. Bill was emotionally abusing C2 when Ms. Bill withdrew from further involvement with Paula DeVeto. He did not notify Ms. Bill of his intention to make the call. He said that the Children’s Aid did not open a file. Instead, a Child Protection Worker interviewed him and C2 then wrote a letter with some recommendations, such as keeping transitions positive for C2.
- I address this issue in my order. As to which, see N.M.B. v. P.P.K., [2019] O.J. No. 486 at paras. 270-273
- In discussing her discontinuation with Ms. DeVeto, Ms. Bill cited what she regarded as Ms. DeVeto’s non-compliance with two paragraphs of the Family Treatment and Intervention Agreement signed by the parties in September 2021. She cited Paragraph 6, which Ms. Bill interpreted to mean that Ms. DeVeto had agreed to work with the family without pushing a particular schedule, and Paragraph 8, under which Ms. DeVeto could recommend the involvement of additional therapists for the parents or child and pursuant to which Ms. DeVeto had recommended the continued involvement of Jenna Hill. Ms. Bill, understanding that she was not bound to accept that recommendation, rejected it for the reasons that she would not agree to continuing C2’s relationship with Ms. Hill.
- There appeared to be a dispute between the parties over whether Ms. Bill owes more money to Ms. DeVeto under the terms of the Agreement that the parties signed with her. As to that, see Paragraph 423
- I found her claimed lack of memory about this difficult to believe. The evidence is clear that Dr. Fox, Ms. Hill, and Ms. McHardy all made similar recommendations.
- Ms. DeVeto indicated during her testimony that Ms. Kelly was of the opinion that Ms. Bill’s behaviour toward C2 was “emotional child abuse”, something Ms. Kelly reported “disgusted” her and had reported to the local Children’s Aid Society. Ms. DeVeto dismissed Ms. Kelly’s opinion and action on the basis that she did not perceive Ms. Kelly having an ill intent toward or simply wishing to speak negatively about Ms. Bill.
- Ms. Bill disputed the allegations that she was being emotionally abusive to C2, as alleged by Ms. Kelly, or the children, as alleged by Mr. MacGougan.
- According to Dr. Fox’s medical records for C2, on January 6, 2022, he spoke with both parties by telephone about C2 being under stress. The issue of her having fevers at her mother’s but not at her father’s was discussed. Dr. Fox counselled the parties that they should guard their emotions around the children. He also recommended that both seek counselling and that C2 be referred to a pediatrician. Mr. MacGougan agreed readily to the referral. Ms. Bill agreed grudgingly, saying that a referral was not necessary “but because of court, she had no choice in the matter.” Dr. Fox then wrote a referral to Dr. Bertoldi, a pediatrician, in which he referred to C2’s claims of fever, writing that he believed them to be “symptoms [of] a reaction to her social situation.” He asked Dr. Bertoldi to see C2 “regarding her physical symptoms and coping with the social situation.”
- I was advised, on consent, that the parties and Ms. Kelly recently met with Dr. Bertoldi. (The delay had to do with Dr. Fox’s referral having been misplaced.) Dr. Bertoldi referred C2 for counselling for anxiety. A counselling organization recommended by Dr. Bertoldi has been agreed upon. C2 is on a waiting list because Ms. Kelly has a child being counselled there and Ms. Bill does not want the same counsellor to meet with C2, seeing that as a potential conflict of interest.
- Ms. Kelly’s involvement by the insertion of this threat to involve the police was unnecessary and inflammatory, constituting an unwarranted intervention in a matter that was between the parties.
- Ms. Bill’s sister, Mallory McEachen, had encouraged Ms. Bill to not retrieve C2 from Mr. MacGougan’s care, despite it being a return date, because of the bad weather and because of the threat to involve the police. She told Ms. Bill to avoid the conflict.
- See, for instance, the evidence set out at Paragraphs 357-379, infra
- Ms. Bill’s sister, Mallory McEachen, had also testified that Mr. MacGougan was a person who did not “hear” his children speaking about their feelings or emotions.
- Ms. Bill testified that she could not recall when C2 was in Mexico or the exact date of her return. I disbelieved her.
- She also refused to acknowledge that she could have been candid with Mr. MacGougan about C2’s involvement in the study, parsing words in an effort to avoid acknowledging that she hid C2’s involvement.
- The parties agreed at the opening of trial to an order that neither will schedule medical appointments for the children without notice to the other party pending a final trial decision.
- Kerr, Chin-Pang v. Chin-Pang, 2013 ONSC 2564; Roloson v. Clyde, 2017 ONSC 3642 at para. 50
- Bouchard v. Sgovio, 2021 ONCA 709, [2021] O.J. No. 5216 at para. 49 (C.A.)
- When the order is prepared for issuance, the children’s proper names and Dates of Birth should be included (the latter, only once, at the outset) rather than the identifiers used herein and in the Reasons.