Court File and Parties

Court File No.: 109-18 Date: 2023-10-04 Ontario Superior Court of Justice

Between: Y.V., Applicant – and – V.Y., Respondent

Counsel: L. De Lisio, for the Applicant Self-Represented, for the Respondent

Heard: May 15, 16, 17, 18 and 19, 2023 and July 4, 5 and 7, 2023

Judgment

The Honourable Madam Justice L. Bale

Overview

1This motion to change proceeding pertains to parenting issues only. The subject child A.Y., is now 10 years of age.

2The Respondent father, Mr. V.Y., seeks changes to the Final Order of the Honourable Mr. Justice R.B. Reid dated June 7, 2019 as it relates to:

a. Decision-making authority (and in particular in relation to decisions regarding education); b. The regular and holiday parenting schedule; and c. Incidents of parenting (e.g. communication, travel, parenting exchanges, etc.).

3The Applicant mother, Ms. Y.V., is opposed to any significant changes to the operative court order although suggests that some ‘tweaking’ or clarification of terms might be in order.

Background Facts

4The Applicant and Respondent were married on May 12, 2012.

5They are the parents of A.Y., born in 2013.

6The parties moved to Canada in 2014 from the United States. They returned to the United States in 2016, and moved back to Canada (Niagara region) in March 2017. They have both resided in this jurisdiction since that time. Both of their extended families continue to reside primarily in the United States.

7The parties separated in October 2017. They are not divorced.

8A court Application was commenced by the Applicant mother in 2018. A 7-day trial was held in 2019 before the Honourable Mr. Justice R. Reid. Justice Reid gave oral reasons for his decision on June 7, 2019, which included decisions relating to parenting, relocation, child support, spousal support, and property division.

9The parenting terms of the Final Order of Reid J., are as follows:

• Para. 4: The Applicant shall have sole custody of the child, A.Y., born in 2013.
• Para. 5: The Applicant shall not relocate with the child outside of Canada unless she has first given 120 days written notice to the Respondent. Intended relocation will be considered a material change in circumstance for the purpose of reconsidering custody, access and primary residence for the child.
• Para. 6: The Respondent will have access to the child each Wednesday after school until Thursday mornings at school and alternate weekends from Friday after school to Monday at school. If a statutory holiday or professional development day for teachers occurs on an access weekend then the weekend is extended by 24 hours.
• Para. 7: Time with the child during school Christmas break and spring breaks will be shared equally by the parties.
• Para. 8: Exchanges when the school is not in session are to take place in a public setting, such as a coffee shop, with minimal interaction or conversation between the parties.
• Para. 9: The Respondent is to have 10 days of uninterrupted vacation access with the child at the beginning of the summer and at the end of the summer. The Applicant is also to have 10 days uninterrupted vacation time with the child at the beginning of the summer and the end of the summer. For the year 2019 the Respondent will have the two periods of 10 days summer vacation access on dates to be selected by him between June 21 and July 6 (as to the first period) and between August 23 and September 2 (as to the second period). The Applicant will have the two periods of 10 days summer access time on dates to be selected by her between July 7 and 21 (as to the first period) and between August 10 and 22 (as to the second period).
• Para. 10: If either party wishes to travel outside of Canada the other party will not unreasonably withhold permission and will provide the documentation required at the time to facilitate crossing international borders. The travelling parent will provide an itinerary, addresses and contact telephone numbers to the other party.
• Para. 11: The regular access schedule may be changed to permit the attendance by the Applicant and child at Jehovah’s Witness conventions and assemblies provided that four weeks of advance written notice is given to the Respondent. Access time missed by the Respondent on account of such occasions will be made up during the two weeks before or after the event.
• Para. 12: Additional access may be scheduled by agreement of the parties.

10The Respondent father was unsuccessful on appeal.

11The Respondent father commenced this Motion to Change Proceeding on November 1, 2021.

12The Applicant mother filed a Response to Motion to Change on January 10, 2022. Although both parties’ pleadings requested changes to the operative support terms, neither party pursued any such relief at trial.

The Law

13The original trial proceedings in this case were heard in the context of a claim for Divorce. Notwithstanding that neither party has pursued the finalization of a Divorce to date, given that the parenting issues were heard as corollary relief to that original Application, this motion to change proceeding is properly heard under the authority of section 17 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).

14In a motion to change the terms of a Final Order for parenting, the court may make an order varying the terms of the operative order only where it is satisfied that there has been a change in the circumstances of the child since the making of the order: Divorce Act, section 17(5).

15The leading case regarding motion to change proceedings involving parenting issues remains the Supreme Court of Canada’s Decision in Gordon v. Goertz. At that time the court explained that:

a. The operative order of the court is presumptively correct; b. A variation proceeding is not an appeal or trial de novo; c. Before considering the merits of an application for variation, the court must be satisfied that there has been a material change in condition, means, needs or other circumstances of the child, since the last parenting order was made; d. Change alone is not enough, the change must have altered the child’s needs or the ability of the parents to meet those needs in a fundamental way; and e. The change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order: paras 10-14.

16These principles have now been consistently accepted and applied in Canadian courts for over 25 years. Subsequent cases have expanded upon the requisite degree of materiality, permanency and foreseeability of the purported change(s), but the core threshold test remains the same:

“…before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order”: Gordon, at para. 13.

17Ongoing conflict and conduct contrary to the spirit of a parenting order may constitute a material change in circumstances’: Zinck v. Fraser, 2006 NSCA 14 at paras. 18-20.

18If the threshold ‘material change’ test is met, the court must then consider the matter afresh in consideration of the current best interests of the child: Gordon, at para. 17.

19The factors which must be considered in analyzing the ‘Best Interests of the Child’ are contained within s. 16 of the Divorce Act:

Best interests of child

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

Primary consideration

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

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

Factors relating to family violence

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred; (b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (d) the physical, emotional and psychological harm or risk of harm to the child; (e) any compromise to the safety of the child or other family member; (f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and (h) any other relevant factor.

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

Parenting time consistent with best interests of child

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

Parenting order and contact order

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

20If the court is satisfied that the material change threshold has been met, a fresh inquiry of the child’s best interests ensues and both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. The best interests factors, as contained within section 16(3), are a non-exhaustive list. There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. The court should consider the matter afresh without defaulting to the existing arrangement. Bubis v. Jones; Persaud v. Garcia-Persaud, 2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285; Roloson v. Clyde, 2017 ONSC 3642; E.M. v. M.Q., 2021 ONCJ 533. The court must ascertain the child's best interests from the perspective of the child rather than that of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child. Gordon v. Goertz; Young v. Young. Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs. Gordon v. Goertz: K.M. v. J. R., 2022 ONSC 111 at para. 71.

21Generally speaking, Ontario courts have been reluctant to award joint-decision making authority where circumstances of conflict and an inability to communicate would hinder the parties’ ability to make effective decisions in the best interests of children: see R. V. G. J.G., 2022 ONSC 1678 at para. 120.

Analysis

22I have carefully considered the evidence before the court and the arguments made by each of the parties. I am satisfied that there have been significant changes in the circumstances of this family which impact A.Y. in a material way, which were not reasonably known nor contemplated by Justice Reid in the original trial proceedings, and which require a substantial overhaul to the parenting terms contained within the Final Order of June 7, 2019 in order to meet A.Y.’s best interests.

23In particular, I find that:

a. A.Y.’s unique educational and learning needs have not been adequately met under the decision-making regime provided for in the operative Final Order. Her academic capabilities appear to have declined and some of her educational needs have been neglected since she was removed from the public school system and change is necessary to ensure that A.Y. is equipped to reach her full academic potential in future. b. The conflict which was identified at the original trial proceedings, has continued unabated and has increased with such frequency that the parties have been unable to implement the terms of the court-ordered parenting regime in a manner that meets the needs and best interests of A.Y. Specifically, the parties have been unable to navigate parenting issues relating to (a) implementation of and reasonable adjustments to the regular parenting schedule, (b) division of holiday parenting time, (c) parenting exchanges, (d) travel, and (e) communication and information sharing. It is evident that changes to the operative parenting order are needed to provide far more structure and certainty to the parenting terms.

24Moving forward, significant detail in court-ordered terms will be required to manage the high level of conflict present in this case.

Part One: Education

25At the conclusion of the trial in June 2019, Justice Reid noted that it was “obvious” that both parties were appropriately focused on A.Y.:

a. They both loved her and wished to see her succeed in life. b. They were both concerned with A.Y.’s wellbeing and wanted the best for her. c. They both acknowledged the devotion of the other parent to A.Y. and acknowledged their respective duties as parents to act in A.Y.’s best interest.

26At this trial, it was likewise obvious that all of these observations of Justice Reid remain true today.

27With respect to decision-making, Justice Reid awarded sole custody to the mother and noted that there was a significant power imbalance between the parties, in favour of Mr. V.Y., during the relationship. Justice Reid found Mr. V.Y. to be rigid and domineering in his treatment of Ms. Y.V. The court found that an order for custody in favour of the Applicant mother was necessary to find a proper balance of power and to reduce the conflict between the parties.

28With respect to A.Y.’s education, Justice Reid found that “by all accounts A.Y. is excelling at school and socially”. The court left it as “a matter for discussion between the parties” as to private school v. public school options. In June 2019 A.Y. was completing Senior Kindergarten at Beyond Montessori School. The issue of A.Y.’s education was a matter of substantial focus at this Motion to Change proceeding.

29The Respondent father is quite intelligent with a high level of education and experience in the field of education. In particular, he has a Bachelor’s Degree in English, a Master’s Degree in School Administration and Supervision, a J.D. in Law, and a PhD in English, with work experience in a high school, as a school principal, and as a professor teaching a variety of subjects at a University level. I accept that the father has a particular interest in A.Y.’s education. He places value on education and learning and wishes to participate fully in this facet of A.Y.’s life. Justice Reid was aware of the father’s qualifications. It is clear from Justice Reid’s decision that he did not intend a custodial order in favour of the mother to result in the removal of the father from all consultation and involvement in A.Y.’s education.

30I accept the Respondent father’s evidence and argument that the Applicant mother has used her designation as sole custodial parent to make major educational decisions for A.Y., without reasonable consultation with the Respondent father and due consideration of his input. I am further satisfied that the educational decisions made by the mother on A.Y.’s behalf have not been in her best interests and have caused disruption to A.Y.’s learning and academic success.

31A.Y.’s formal education since June 2019 has been as follows:

a. September 2019 to June 2020: A.Y. attended grade 1 at Jeanne Sauve French Immersion Public School. Her final grade 1 report card suggests that A.Y. was fairing satisfactorily, but was demonstrating weaknesses in reading and writing. It should be noted that the COVID-19 health pandemic impacted A.Y.’s grade 1 school year commencing in March 2020, and that the latter half of the year included online learning. b. September 2020 to November 2022: A.Y. attended at a combination of programs for the years she was scheduled to be in grade 2 and grade 3 at a combination of different private programs, including Agate school, NALA, and Terra Viva. This period of A.Y.’s schooling will be subject to more extensive review below. c. November 2022 to June 2023: A.Y. was in grade 4 at St. David’s Public School. Her grade 4 report card noted that: i. She made nice friends in class and became more comfortable participating in group settings as the year progressed. ii. She often did not finish her weekly tasks (e.g. spelling and grammar) or larger class projects on time. She had identified weaknesses in areas of responsibility, organization and initiative. iii. She was in an Individual Education Plan and learning at a level below grade 4 expectations in reading, writing, and math. A.Y.’s last IEP identified that she was learning at a grade 1 level in these subjects. iv. She was absent a total of 22.5 days from school. The Respondent father filed attendance records which confirmed that all of A.Y.’s absences from school occurred on the mother’s parent time. The mother did not dispute this allegation but advised the court that many of the absences could be attributed to scheduled mental health appointments on Mondays.

32The Respondent father did not agree with the mother’s decision to remove A.Y. from the public school system after grade 1. The father asserts that once A.Y. was removed from Jeanne Sauve School the father was completely excluded from all consultation, information and decision-making regarding A.Y.’s education. For the two years which followed the father repeatedly requested information regarding A.Y.’s education including details of her enrollment, information relating to the content of her educational programming, courses of study and quality of instruction, measures of her progress and evaluations and assessments, and the nature of her attendance. The father did not receive satisfactory information from the mother. When he requested information of this nature from the owner/principal of Agate School, he was (erroneously) advised that such information could not be shared with him as the non-custodial parent.

33The father testified that he has never had a clear understanding of A.Y.’s status as a homeschooled student, student at Agate School, or the relationship between the two. Most of his information about Agate private school was obtained from the one-page website. Specifically, that Ms. H. is the owner and principal of the school and the business address is registered to her home. It was unclear to him whether A.Y. attended any classes or had any structured curriculum, or learning objectives. The father’s requests for information about A.Y.’s education from Ms. H. were met with refusal on the basis that he was not entitled to information as the non-custodial parent, although she did send him invoices for her services. Neither the mother nor Ms. H. provided evidence to the court which challenged these allegations.

34The mother testified that she enrolled A.Y. at Agate Private school because she believed it would be a good fit for A.Y. A.Y. was resistant to school at the time and was frequently frustrated with her homework. At Agate School A.Y. was able to set her own pace and pursue her own interests. She felt less stressed. The mother advised the court that A.Y. was a student at Agate for approximately 1 ½ years. Ms. H. testified that A.Y. was a student at Agate from August 2, 2020 to October 30, 2022. This contradiction in their evidence even now serves to validate some of the father’s confusion and frustration.

35Both the mother and Ms. H. testified as to the nature of A.Y.’s learning through Agate School. It appears from their evidence that Agate is a platform for homeschooled students. With respect to A.Y.’s homeschooling they advised that:

a. Agate School espouses an andragogical approach to learning: self-directed, intrinsically-motivated, and holistic in nature. b. Agate School is recognized as a non-inspected private school in Ontario by the Ministry of Education. c. There is no fixed timetable for the students. d. Grading systems are seen as obstacles for children, and monitoring is better achieved through connection and communication. As such, there were no report cards or progress evaluations done for A.Y. during her time at Agate School. e. More generally, A.Y. was noted by Ms. H. as a social, respectful and inquisitive person who cares about people and animals. f. Through Agate and another program called Nala, A.Y. also attended field trips with a large community of homeschoolers and would get together to socialize 2-3 times per month. g. Agate school has a partnership with Terra Viva, which offers a part-time seasonal outdoor forestry program. A.Y. attended the forestry program two days per week in September and October of 2022. One of Ms. H.’s grandchildren is presently enrolled there. The teaching qualifications of the instructors at Terra Viva were not known. h. Ms. H. does not have a post-secondary degree and does not adhere to credentialism.

36I am concerned that the Respondent mother did not present any evidence at this court proceeding of work product completed by A.Y. during the period of her homeschooling. Other than brief anecdotes of A.Y. learning through cooking and immersing herself in grade 6 algebra for “three straight days”, the court was left with very little information about the content of her education during this time period.

37The Respondent father stated his objection to A.Y.’s schooling. He attempted to raise his objections directly with the Applicant mother, through legal counsel, mediation, and ultimately, by court motion.

38In August 2022 the parties attempted two sessions of Open Mediation. The mediator, Ms. Marian Grande, testified at this trial. Ms. Grande advised the court that the parties had reached agreement in principle on some of their areas in dispute however Ms. Grande was notified on August 27, 2022 that the Applicant mother would no longer be continuing in the process. Of note, the Applicant mother did not complete assigned ‘homework’ relating to researching potential schools for A.Y. and this issue was not resolved. Ms. Grande did not observe any indicia of ‘bullying’ or coercive conduct on the part of the father during mediation sessions and the mother never reported to her any form of pressure. Ms. Grande confirmed that the father paid the cost of the mediation, save and except a cancellation fee incurred by the mother.

39A Voice of the Child Report was completed on October 12, 2022. The author of the report, Ms. Cynthia Katz, testified at trial and shared the child’s views and preferences with respect to schooling, which was the primary and only focus of the report. A.Y. was very clear in her opinion to Ms. Katz during the interview process that she did not enjoy and did not want to attend Agate School. Ms. Katz was confident that A.Y. expressed an independent and consistent desire not to be homeschooled. This conclusion was not weakened in cross-examination. I accept Ms. Katz’ representation of the child’s views and preferences as accurate.

40On October 7, 2022 the Honourable Mme. Justice L. Walters heard a temporary motion on the issue of schooling. The Respondent father sought the enrollment of A.Y. in public school (either Jean Sauve or St. David’s Public School) and the mother sought to enroll the child at Terra Viva School (forest program) two days per week and to have her homeschooled the remaining three days per week. The father was successful on his motion and A.Y. was ordered to attend public school at St. David’s Public School. In reaching this decision, the court noted concerns that there was ‘virtually no information’ about A.Y.’s instructor’s credentials, course curriculum or reports relating to how A.Y.’s academic progress was progressing to date. The court concluded public school would provide A.Y. with the qualified teachers, set and structured curriculum, regular reporting of her progress, and socialization with peers that A.Y. required. The court did not accept the mother’s reported transportation issues as sufficient to prevent the child’s attendance at school. A.Y. was ordered to attend St. David’s Public School commencing October 31, 2022.

41The court is advised that the Applicant mother kept the child out of school for two weeks as issues arose regarding the mother’s ability to transport A.Y. to St. David’s School. Specifically, the travel time from the mother’s home to St. David’s School is 14 minutes by car. However, the mother does not have a vehicle and the school is not on a public transportation route.

42The father attempted to generate solutions for the mother’s transportation issues. The mother offered no solutions in response. Ultimately, to ensure the child’s attendance, the father began transporting the child to and from school every day on the mother’s parenting time. He testified that he enjoyed the additional time each morning and afternoon with A.Y., transporting her to and from school from the mother’s home, but noted that these exchanges sometimes caused additional conflict. For example, he could not always drop A.Y. off at the mother’s home immediately upon her return from school because he was engaged in work during business hours.

43This continued until March 6, 2023 at which time the court ordered that each party provide transportation for the child. The mother appeared to manage this change with the assistance of Ms. H., and borrowing her vehicle from time to time.

Father’s Educational Plan

44The father proposes that A.Y. continue at St. David’s Public School where she has now attended since November 2022 and is on a specialized IEP. St. David’s Public School is a Kindergarten to Grade 8 school located within the catchment of the Respondent father’s home. The father has entered into a rent to own agreement on his residence and has no plans to move.

45The bell times at St. David’s school are 9:05 a.m. and 3:30 p.m. A.Y. rides the school bus to and from her father’s home at approximately 8:40 a.m. (pick up) and 3:40 p.m. (drop-off). A.Y. has a door code which allows her to let herself into the home and is able to walk from the bus stop to the home without accompaniment if needed. However, the father generally walks A.Y. to and from the bus stop on his parenting days.

46The father remains employed as a University Professor. He mostly works from his home office during the hours of 9:00 a.m. to 5:00 p.m., but his hours are flexible. From time to time he is required on campus for in-person meetings. He can generally be called upon to assist with transportation outside of business hours, and is available to attend at the school on short notice if necessary.

Mother’s Educational Plan

47The mother asserts that A.Y. is unhappy at St. David’s Public School and that she frequently calls to come home. The mother explained that presently A.Y. is feeling a little down about school because she feels like her classmates at St. David’s are smarter than her. She asserts that A.Y. is demonstrating some behavioural issues, but acknowledged in cross-examination that A.Y.’s teachers are not reporting such concerns and at present the issues seem only to present themselves in the mother’s home. Notably, A.Y. continues to sleep in the mother’s bed when in her care.

48The Applicant mother has resided in Ms. H.’s home, with her family, since November 2022. The mother advises the court that her residence with Ms. H. is not permanent and she is hopeful to save up first and last month’s rent for another residence as soon as possible.

49The mother is employed as a school bus driver. Her hours of employment are generally 6:30 a.m. to 10:00 a.m., and 1:30 p.m. to 5:00 p.m.

50The mother takes the position that A.Y. should attend Terra Viva School, in Port Dalhousie, on a full-time basis, although she was unsure whether Terra Viva offered full-time/year-round programming. She was also unsure whether Terra Viva offered programming beyond the grade 6 level and did not offer any concrete plan as to A.Y.’s educational path following grade 6. She testified that she would rely on G. H. to drive A.Y. to Terra Viva School because that is where at least one of Ms. H.’s grandchildren go to school. In the alternative, the mother felt she could get A.Y. to school by public transportation (the Lake Street bus).

51As an alternative position to Terra Viva or homeschooling, the mother proposes that A.Y. could attend Harriet Tubman School because it is a 10 minute walk/3 minutes drive from her home, and A.Y. could take a school bus. The mother suggested that, in future, she could apply to secure a different bus route from her employer and perhaps secure a route for Harriet Tubman Public School, which would allow A.Y. to ride the bus with her to school. She felt it was more likely that she could secure the route for Harriet Tubman School than St. David’s Public School based on levels of seniority.

52I find that there are significant gaps in the Applicant mother’s educational plan for A.Y.:

a. The evidence at this trial left the court with the impression that there was a failure to provide meaningful structure and oversight to A.Y.’s homeschooling experience. While certainly experiential, interest-based learning may have provided some benefits to A.Y., I find that these benefits were outweighed by the gaps in instruction and focus on A.Y.’s basic skills such as reading, writing and mathematics. A.Y. has fallen behind her peers academically in these important areas. A.Y.’s self-worth has evidently been diminished as a result of educational neglect in these areas. The mother offered no insight and no plan as to how these areas of concerns could be addressed through future homeschooling. I conclude that future homeschooling of A.Y. is not in her best interests moving forward. b. The information provided to the court with respect to Terra Viva School is concerning: a. The court heard conflicting information regarding whether the program was a full-time or part-time, year-round or seasonal program. The mother’s evidence was unclear in this regard. It did not appear that she had sufficiently researched this school. b. In the event that the program is only part-time (i.e. to be supplemented by homeschooling) it is unclear who would be caring for A.Y. and assisting her with her homeschooling, between the hours of 6:30-10:00 a.m. and 1:30 p.m. to 5:00 p.m., while the mother is driving her school bus. This court cannot infer that Ms. H. will be available to care for A.Y. during all of these hours, especially in light of the mother’s asserted intention to move from her residence. c. A.Y.’s transportation to and from Port Dalhousie is completely contingent upon Ms. H.’s grandchild’s continued enrollment, and Ms. H.’s ability and willingness to provide all transportation. d. No information was provided as to how A.Y.’s identified special learning challenges in reading, writing and math, could be met through this program. e. No long-term plan was proposed for ‘if, how, or when’ A.Y. might transition back into more structured programs of study or keep up with a high school curriculum in future. c. The mother’s alternate proposal of Harriet Tubman Public School is also problematic: a. The mother did not lead evidence as to the school’s bell times, but presumably they fall between 6:30 a.m.-10:00 a.m. and 1:30 p.m. to 5:00 p.m., when the mother is operating a school bus. Notwithstanding that a school bus could be available for A.Y., the mother did not provide a plan for who would assist A.Y. with her morning or after school routines, or ensure that she safely got on and off the bus. b. Again, the court cannot presume that Ms. H. would be available to fulfil this role: she has the school commitments of her own grandchildren, and the mother and A.Y. may soon be residing in in a new residence. c. At present, the mother’s assertion that she could secure the bus route to Harriet Tubman Public School is as hypothetical as her ability to secure the route to St. David’s School. d. Again, this plan appears to involve the assistance of Ms. H., or other unknown third party, for before and after school care, totaling approximately 2 hours of before school care and 2 hours of after school care each day.

Conclusion

53This court is extremely concerned that since June 2019 A.Y.’s educational needs have not been prioritized. It is evident to this court that A.Y. has fallen behind her like-aged peer group academically, and the Applicant mother has not adequately consulted with or considered the input of the Respondent father in relation to meeting A.Y.’s educational needs. The mother’s current educational plans for A.Y. lack clarity and are not sustainable. A material change in circumstances has occurred which necessitates an adjustment of the Applicant mother’s present decision-making authority over A.Y.’s educational issues.

54A.Y. is now in grade 5. She is now at an age where an increased focus should be placed on the development of her social and intellectual skills, such that she can transition into adolescence with a sense of competence and confidence. It is evident to this court that the father’s proposed plan of regular attendance at public school with an Individualized Education Plan offers A.Y. the stability and support that she needs at this time. While both parties have close and strong bonds with A.Y., it is the conclusion of this court that the Respondent father has better demonstrated that he is presently equipped to meet the educational and learning needs of A.Y. His plan is more consistent with the views and preferences of A.Y., which clearly indicate that she does not wish to be homeschooled. The father’s demonstrated willingness to problem-solve and assist in A.Y.’s transportation to public school on the mother’s parenting time to ensure A.Y.’s attendance at school, satisfies the court that the father can be entrusted to communicate and cooperate with the mother on matters relating to A.Y.’s education, and to promote her continued involvement in A.Y.’s education. Despite the mother’s evidence that she feels manipulated or threatened by the father at times, there is no compelling evidence of family violence in the past five years which would cause this court to hesitate in empowering the father to make decisions relating to A.Y.’s education.

55This is not a case where joint decision-making authority is feasible. I am satisfied that this is an appropriate case in which to allocate decision-making responsibility over important issues relating to A.Y. between the parties by subject-matter. Notwithstanding concerns relating to the sharing of information, which will be explored more fulsomely below, the Respondent father is content that the mother retain decision-making authority over A.Y.’s major medical, dental, and therapeutic issues. Decisions relating to A.Y.’s educational issues however shall become the domain of the Respondent father as I am satisfied that he is in a better position to make such decisions in A.Y.’s best interests moving forward.

56As a result, paragraph 4 of the Final Order of Justice Reid, dated June 7, 2019, which provides the mother with sole custody of A.Y., shall be modified to allocate decision-making responsibility for A.Y. on the basis of subject-matter.

Part Two: Conflict, Parenting Time, and Incidents of Parenting

57With respect to parenting time, Justice Reid ordered that the status quo parenting schedule would continue, and that the parties should be “flexible in expanding the parenting time between Mr. V.Y. and A.Y. in her best interest by negotiation and based on the employment or other commitments of the parties, including A.Y.’s recreational activities”. In reaching this conclusion Justice Reid noted that:

a. The Applicant mother had been A.Y.’s main caregiver since birth. b. The status quo schedule of parenting time between A.Y. and the Respondent father of Tuesday after school until Wednesday mornings and alternating weekends from Friday after school until Monday at school, was working well.

58The father’s position that there has never been any expansion of his parenting time, as contemplated by Justice Reid, is not challenged in evidence. Rather, it appears that, for various reasons, the total parenting time that A.Y. has been able to enjoy with her father since June 2019 was less than the minimum time ordered and further contemplated by the court.

59With respect to other incidents of parenting, Justice Reid noted that:

a. Both parents should be entitled to travel outside of Canada with notice to the other party, and that consent should not be unreasonably withheld. b. An equal division of the Christmas holidays was in A.Y.’s best interests. c. Both parents had different approaches to parenting, but that they would have to see past their differences and discord and find ways to problem solve and communicate in A.Y.’s best interests. d. Conflict between the parties was a concern. There had been two involvements of local police services regarding post-separation conflict between the parties. As a result, parenting exchanges of A.Y. were ordered to take place at her school, and where this was not possible, in a public setting, with minimal interaction or conversation between the parties.

60Justice Reid was hopeful that the parties would be able to navigate these objectives in a peaceful and child-focused manner. This has not occurred. Rather, the communication between the parties has continued to deteriorate and they have been unable to employ a spirit of cooperation in A.Y.’s best interests. The broadly-worded expectations of the parties (e.g. to select a neutral exchange location, to divide holidays equally, to facilitate reasonable travel for A.Y., etc.) have become a source of considerable and additional conflict between the parties with both parties focused on their own interpretations and interests. It is clear to this court that a material change in circumstances has occurred such that if changes are not made to the Final Order A.Y.’s continued exposure to parental conflict will cause her psychological and emotional harm.

Police Involvement

61Perhaps the most obvious example of inappropriate and increasing levels of conflict between the parties are the content of the police occurrence reports filed. At the time of the original court proceedings, police had intervened in the post-separation affairs of the parties on two occasions. Since that time there have been eighteen occurrence reports filed with the Niagara Regional Police involving the parenting relationship between the parties:

a. March 18, 2020: Police were called by the Respondent father to assist in facilitating his parenting time. b. March 23, 2020: Police were called by the Applicant mother to assist in facilitating the return of A.Y. into the mother’s care. c. July 20, 2020: Police were called by the Applicant mother to assist in facilitating the return of A.Y. into the mother’s care. Police reviewed information within the parties’ coparenting app and A.Y. was left in the father’s care. d. September 24, 2020: Police were called by the Respondent father to assist in facilitating his parenting time. e. October 4, 2020: Police were called by the Respondent father to assist in facilitating his parenting time. The father reported that his parenting time was still being withheld since the last police intervention. The mother reported that she was withholding the child as a result of a dispute over the parenting exchange location which occurred on September 21, 2020, at which time the father unilaterally changed the exchange location to Niagara Falls – causing significant problems for the mother. f. May 24, 2021: Police were called in response to a harassment complaint made by the father against G. H. regarding unsolicited emails (re: payment invoices). g. May 27, 2021: Police were called by the Applicant mother in response to a dispute at an exchange location involving both parents and G. H. The mother acknowledged receiving three messages from the father in advance of the exchange regarding concerns raised about Ms. H. h. November 24, 2021: Police were called by the Applicant mother regarding a dispute over the child’s passport. There was no report of violence or threats. The mother had not been able to locate the passport prior to the exchange. i. December 10, 2021: Police were called by the Respondent father regarding the mother videotaping/photographing his home. The mother acknowledged the allegation and was cautioned not to take photos or attend at the property without the father’s consent. j. December 17, 2021: Police were called by the Applicant mother reporting that the father attended at her home unannounced and uninvited. The father acknowledged attending at the property to drop off Christmas gifts for A.Y. k. December 18, 2021: Police were called by the Respondent father re: a disclosure made to him that the mother hit A.Y. The Child Abuse Unit declined to conduct an investigation. The report was sent to Family and Children’s Services (FACS) for review. l. December 23, 2021: Police were called by the Applicant mother to report that the father advised he would not be returning A.Y. until the New Year, in contravention of the parenting schedule. m. February 23, 2022: Police were called by the Respondent father to conduct a wellness check. The father advised that the mother was withholding his parenting time. n. September 6, 2022: Police responded to a complaint made by the Applicant mother and G. H. that the father had “abducted” the child from her educational facility. a. The mother advised police that: i. The father had fled the school with the child; ii. He had just completed his ‘period of supervision’ with the child; iii. As the father was dropping the child off, he was advised of the “updated educational plan for his daughter” which caused him to become irate and flee with the child; and iv. No words were exchanged between the parties before his rapid departure. b. Ms. H. was noted to have intervened in the dispute, “likely exacerbating the issue”. c. Police attended at the father’s home. The child was in good spirits, no welfare concerns were raised, and the child was left in the care of the father. o. September 7, 2022: Police responded to a request for assistance by the Respondent father at a scheduled parenting exchange. A.Y. was exchanged without incident. p. October 3, 2022: Police were called by the Applicant mother as the child was not returned to her as scheduled. Police and FACS investigated a disclosure made by the child to her physician that her hand was burned as a result of her mother holding her hand against a space heater as a form of punishment. During a subsequent interview with the child, the child recanted. The investigation was concluded with the finding that the child’s injury was accidental and that the child is ‘being pulled in multiple directions attempting to appease both parents. q. November 10, 2022: Police were called to conduct a child welfare check at the request of the father. The child was observed to be fine. r. February 17, 2023: Police were called to conduct a child welfare check at the request of the father. Police spoke with G. H. and A.Y. was determined to be fine.

62A review of the reports confirms three general observations:

a. On each and every occasion that the police were called in relation to this family, the police observed no concerns regarding A.Y.’s welfare while in the care of either parent. b. The majority of the involvements of the police related primarily to disagreements over scheduled parenting time and the transfer of the child between the parties’ homes. c. Notwithstanding the multiple involvements of the police with the parties since June of 2019, none of the incidents reported to the police rise to the level of family violence as defined under section 2(1) of the Divorce Act.

63As a result of telephone calls to the police, FACS Niagara has also had some involvement with this family. Generally FACS has taken the position that their only protection concern is the ongoing conflict between the parents. The parties were working voluntarily with the Society in 2022, but the file has since been closed.

64While the presence of conflict between the parties is not entirely new, the volume of calls to police alone, made by both parties since June 2019 suggests that parts of the operative parenting order are not functioning effectively in the best interests of A.Y. and require revision.

Parenting Schedule

65It is evident that notwithstanding the commentary of Justice Reid (i.e. that he was hopeful that there would be a flexible increase in the father’s parenting time with A.Y. following trial), there has been no expansion of parenting time in the four years which have followed. The father asserts that instead, the mother has at times unilaterally cancelled or reduced his parenting time without justifiable basis. By way of one example, he points to the fall of 2020 wherein his parenting time with A.Y. was withheld for more than one month as a result of a disagreement over an exchange location.

66An additional difficulty arose from the mother’s decision to homeschool A.Y. from September 2020 to November 2022. The Order of Justice Reid made provision for extended weekends between father and child on statutory holidays and school closures (e.g. PA days). Because the Applicant mother does not recognize statutory holidays and there was no school calendar, A.Y. and the father have been deprived of this additional intended time together. As a result, A.Y.’s time with her father has fallen below the anticipated minimum prescribed parenting time, under constant protest by the father.

67I am concerned by the high number of A.Y.’s school absences during the 2022-2023 school year, all of which occurred on the mother’s parenting time. As discussed above, I find that the Respondent father is committed to ensuring A.Y.’s academic success. He is ready, willing, and able to take on an increased day-to-day role in A.Y.’s parenting and will actively promote A.Y.’s attendance at school and completion of school assignments.

68I am mindful that the court must give effect to the principle that a child should have as much time with each parent as is consistent with her best interests. I am also mindful that A.Y.’s physical, emotional and psychological safety, security and well-being must remain the primary considerations in crafting the appropriate parenting schedule. A.Y. was six years old at the time of the Order of Justice Reid. She is now ten years of age and is capable of spending lengthier periods of time out of the care of the Applicant mother. There is no evidence before the court that would suggest that the Respondent father is not capable of or committed to providing a high level of care to A.Y. A.Y.’s attachment to both of her parents is strong and stable. I find that she will benefit from increased time in her father’s care.

69I conclude that the parenting schedule made in June 2019 is no longer operating in A.Y.’s best interests. A clearly defined parenting schedule, in which A.Y. enjoys equal time with both parents, would better meet A.Y.’s needs and best interests than the current status quo. As such, paragraph 6 of the Final Order of Justice Reid shall be terminated and replaced with an equal parenting regime with additional detailed terms intended to promote A.Y.’s academic success and reduce conflict between the parties.

Holidays

70Justice Reid ordered that “time with the child during school Christmas breaks and spring breaks shall be shared equally by the parties”. Again, the parties have struggled with implementing this directive.

71First, the parties have interpretive difference as to how the ‘equal time’ should be divided:

a. The father asserts they should be divided in equal halves, so as to permit travel with A.Y. to visit their extended families and experience long-standing holiday traditions with those distant family members while she is not in school. b. The mother asserts that Christmas Day/Eve should be alternated each year, with the balance of the holidays divided in some equal proportion.

72Second, from September 2021 to November 2022 A.Y. was not enrolled in mainstream schooling. As such, there was no formal school calendar, and winter and spring breaks were not defined. As per this court’s ruling on the issue of education, A.Y. will presumably be enrolled in a formal school setting for years to come. This should not be an issue in future.

73With respect to the division of school holidays moving forward, the mother’s position is reflective of a rather generic and established family court practice of sharing and alternating the highly sought-after parenting time which falls on Christmas Eve and Christmas Day. However, that practice is not the solution that best suits the religious and family traditions of this family. Both parties have family in the United States. A.Y.’s winter vacation from school is the ideal time for her to spend time with her extended families. The mother does not celebrate Christmas Eve or Christmas Day for religious reasons. The father would prefer to spend time with A.Y. and his extended family over the holidays generally, rather than to carve out specific days which would limit their ability to travel. I accept the father’s position as the more logical and more child-focused in these unique circumstances. The mother’s position is unduly disruptive to the important objective of promoting and maintaining connection between A.Y. and her extended family.

74With respect to summer vacation, the holiday schedule provided for in the Final Order of Justice Reid, appears to have been endorsed with the general approval of both parties. In essence, it provides for almost equal parenting time over the summer months, with significant opportunity for travel. However, the existing structure of the summer parenting schedule has resulted in extremely lengthy periods of time where A.Y. has little to no contact with one parent. Likewise, efforts to agree upon summer vacation dates has once again resulted in conflict between the parties. Moving forward, I find that it is in A.Y.’s best interests to divide the summer holidays equally between the parties, in two-week consecutive blocks, thus providing A.Y. and both parties predictability in scheduling, limited room for negotiation, and ample opportunity to visit family in the United States.

75A.Y. will spend Mother’s Day with the Applicant mother and Father’s Day with the Respondent father. I recognize that the mother does not celebrate Mother’s Day for religious reasons, but in the spirit of an equal parenting regime, and with recognition that A.Y. herself might place importance on dates intended to honour her parents, I make this Order. It is open to the mother to decline this parenting time if it is viewed as offensive to her practices (which it is not intended to be).

76With respect to school spring break, and all other statutory holidays and vacation days from school, I am of the view that unless otherwise agreed between the parties, it is best for A.Y. simply to allow the regular parenting schedule to run its course.

77The formula for the logistics of scheduling parenting time during winter break, summer break, Mother’s Day and Father’s Day are self-explanatory and detailed below. These terms will replace paragraphs 7 and 9 of the Final Order of Justice Reid.

Travel

78As noted, both parties continue to have extended family in the United States. The Respondent father’s family resides primarily in the Chicago and Buffalo/Niagara Falls areas. The Applicant mother’s family is primarily in Kentucky, Florida and Arizona. Due to some concerns relating to her work permit in recent years she has had limited opportunity to visit her family. Neither party has family in Canada.

79The father advises that from 2017 to 2021 A.Y.’s passport and visitor record travelled between homes for both parties’ use and that he and A.Y. would travel across the border regularly to visit family, enjoy cultural cuisine, get haircuts, etc. In November 2021 the passport stopped coming during A.Y.’s parenting time (as noted in the police incident report of November 24, 2021). The father advises that even when he gave the mother advance warning of planned trips to Chicago and Baltimore, the passport would not be provided, frustrating their planned visits to family and hindering attendances at cultural activities across the border which they previously enjoyed together. The father further advises that in December 2021 the mother attempted to thwart his Christmas travel plans with A.Y. by notifying border officials. He was permitted to cross using A.Y.’s birth certificate and Nexus Card. After this event the mother cancelled A.Y.’s Nexus Card.

80The father advises that the nature of his travel to visit family in the United States is relatively consistent, except that sometimes he drives and sometimes he flies. Most addresses of his family members have not changed. The mother has been to their homes many times. She continues to have the addresses and telephone numbers of his family members. Many of them continue to have landlines. The father filed as an exhibit an email to the mother dated March 15, 2023 wherein he provided her with details of his proposed border crossings until September 5, 2023. The mother’s reply was unresponsive. The father testified that he is willing to provide more details if needed by the mother whenever he travels.

81The mother advised the court that in November 2021 she advised the father that she was uncomfortable with the father travelling across the border with A.Y. due to the COVID-19 health pandemic. At present she is not agreeable to A.Y. having a Nexus Card because she believes the father would cross the border with A.Y. without telling her. I am not satisfied with these responses. In my view, the mother allowed her distrust and animosity for the father to outweigh the benefits to A.Y. of strong family connections and exposure to beneficial events and opportunities. I conclude that her actions were contrary to paragraph 10 of the Final Order of Justice Reid which required her to facilitate reasonable requests to cross the border.

82An Order which makes the Respondent father custodian of A.Y.’s passport and travel documentation will ensure that there is no further mischief in this area.

83The terms relating to travel below shall replace paragraph 10 of the Final Order of Justice Reid.

Parenting Exchanges

84The issue of parenting exchanges was complicated by A.Y.’s homeschooling. The Final Order of Justice Reid anticipated that parenting exchanges would regularly take place at the natural start and end times of A.Y.’s school day, with A.Y. transitioning into the care of the other parent at those times. However, without a physical ‘school’, parenting exchanges between the parents could not be avoided and A.Y. was exposed to unnecessary conflict.

85Likewise, both parents testified that the general order requiring such exchanges to take place in an undefined public setting led to further conflict. Each party gave evidence of their own frustration with the other’s perceived threats to withhold A.Y. if their proposed meeting location was not agreed to. The end result of these stand-offs was the reinforcement of each of their own narratives: the mother believing the father was engaging in coercive control tactics, and the father believing that the mother was unilaterally and unfairly dictating the terms of his parenting time.

86It is obvious that more specific and detailed terms regarding parenting exchanges are required to put an end to A.Y.’s exposure to conflict, and unnecessary intervention by already overburdened first responders. The court-ordered parenting exchange terms detailed below are self-explanatory and shall replace paragraph 8 of the Final Order of Justice Reid.

Information Sharing

87The father alleges that the mother refuses to consult with him on any important issues and often refuses to share basic information with him regarding A.Y. Breakdowns in communication were evidently responsible for some of the parental conflict which has arisen post June 2019. It was clear from the evidence of both parties that more precise terms relating to the parties’ mutual obligation to share important information about A.Y. to the other are needed in the following areas to meet her needs and reduce conflict between the parties. Some of the issues raised include:

a. Dental Care: The father advised the court that he does not know who A.Y.’s dentist is. He has requested this information, but the mother will not share it. The father tendered into evidence an e-mail communication from February 2023 wherein the mother was secretive about the child’s dental care. The mother did not explain this communication or provide elaboration as to A.Y.’s dental care in her evidence. It appears that the father is never given notice of A.Y.’s dental appointments. This must change. b. Medical Care: In April 2023 the mother advised the father that A.Y. needed to stay home from school for a week due to pink eye. The father requested the name of the physician who provided this directive. The mother did not share the requested information. The mother kept A.Y. home from school and would not permit the father to have his parenting time. The father asserts that he is never given notice of A.Y.’s medical appointments. He advised that he only learned through the school attendance records that on March 1, 2023 A.Y. missed school for a medical appointment as a result of falling down the stairs and hurting her back. It appears to the court that the mother shares some but not all of the important medical information relating to A.Y. with the father. This too must change. c. A.Y.’s Activities and Events: The father advised the court that the mother refuses to utilize the calendar feature in App Close. He tendered a written communication dated September 24, 2021 wherein she stated her refusal. The mother testified that she is reluctant to use the calendar because the father has taken advantage of typos in the calendar in past. The failure to implement a reliable calendar has contributed to some of the conflict relating to scheduling between the parties. d. On September 6, 2023 the father brought A.Y. to what he believed was her first day of school at Terra Viva Montessori Forest School. The mother and Ms. H. also attended at the school. The father was advised at that time that school did not commence until September 13th – the mother had not shared this information with him and would not permit him to be listed as a school contact for A.Y. Conflict ensued as noted within the police report of same date referenced above.

88The Applicant mother was entrusted with the designation of sole custodial parent. While she appears to have enjoyed the rights associated with that title (i.e. the power to make decisions), she did not meet her corresponding obligations (i.e. to keep the Respondent father informed of important issues relating to A.Y.). In doing so, she deprived him of meaningful opportunity to provide important input into issues affecting A.Y.’s well-being. A.Y. did not benefit from this approach. A detailed formalization of each party’s obligations with respect to information sharing moving forward is necessary. The court ordered terms below are self-explanatory and are intended to reduce conflict between the parties. In particular, it is imperative that the mother forthwith provide the father with updated contact information relating to A.Y.’s current medical, dental, and therapeutic care providers, and to provide him with a right of timely access to information relating to A.Y.’s care. Further, the parties will be required to use the App Close calendar function and to input important events into the calendar under the domain over which they have decision-making authority. The father will also input the regular and holiday parenting schedule into the calendar, in accordance with the terms of this court order for future ease of reference of both parties. For clarity, it is intended that the existing parenting weekends continue into perpetuity on an alternating weekend basis, not to be displaced by holiday parenting time overrides.

Counselling

89Both parties agree that counselling is good for A.Y. although she does not have any formal mental health diagnoses. Records filed suggest that A.Y. has attended at Anxiety Busters through Pathstones Mental Health, and Attachment and Trauma Treatment Centre for Healing Niagara (“ATTCH”). Two problems related to counselling have arisen:

a. The parties have struggled to coordinate the payment and reimbursement of benefits; and b. Many of the therapeutic sessions have been scheduled when A.Y. is otherwise required to be in school. The father alleges that prior to the court order requiring A.Y.’s attendance at St. David’s School, appointments were often scheduled during the evening. The mother advises that she scheduled full days of therapy on Mondays because A.Y. was sluggish after school and unable to dive into her therapy after school hours.

90The mother advises that A.Y. has not attended counselling since December 2022 and there is an outstanding balance to be paid before she can reattend. The parties are encouraged to settle this balance such that each party is responsible for the portion of the services that were not covered by insurance in proportion to their respect incomes. Whether A.Y. will continue in counselling falls into the domain of decision-making responsibility of the mother, however both parents are entitled to provide input and receive feedback from A.Y.’s therapist. In the event that counselling is reinstated in the future, it should not be scheduled during school hours absent exigent circumstances. Given that A.Y.’s need for counselling is likely due in part to the conflict between her parents, it would be preferable that the parties take turns attending with A.Y. at these appointments and have an opportunity to interact and consult with the chosen therapist, and learn how they might both individually support A.Y.’s mental health.

Religious and Cultural Issues

91The parties do not share the same religious views. The mother is a member of the Jehovah’s Witness faith. The father is not. This issue has presented challenges in two ways:

1. As a Jehovah’s Witness the Applicant mother does not celebrate many conventional holidays and events. The father advises that he has no objection to the mother’s faith, but wishes to be free to celebrate and expose A.Y. to his own religious and cultural practices. The father raised in his evidence, instances where A.Y. was kept out of school on days where her class was engaging in such events as Halloween events and Christmas parties, over his objection.
2. The mother wishes to attend Jehovah’s Witness conventions and assemblies which may fall on the father’s parenting time. Paragraph 11 of the Final Order of Justice Reid permitted attendance by the mother and A.Y. at such events, provided that make-up time was scheduled within two-weeks of the event. Unsurprisingly the parties have not been successful in scheduling this makeup time to their mutual satisfaction.

92It is beneficial for A.Y. to be exposed to the practices and cultures of both of her parents. As such, each party shall be entitled to participate in religious and cultural events and activities as they see fit on their own parenting time, with neither parents’ religious views or practices taking priority over the other. This is in keeping with section 16.2(2) of the Divorce Act which expressly provides that the resident parent has exclusive authority to make day to day decisions affecting the child during their parenting time. Specifically, this provision empowers each parent to decide whether A.Y. will participate in holiday celebrations which take place in school on their own respective parenting time.

93With respect to the mother’s attendance at religious conventions and assemblies with A.Y., she will be free to do so on her own parenting time. In the event the Applicant mother wishes to attend such activities on the father’s scheduled parenting time, she shall only be permitted to do so if modifications to the parenting schedule are agreed to in writing in advance. Likewise, in the event that other special events and opportunities (e.g. family weddings, etc.) arise, both parties should make effort to be accommodating so that A.Y. can enjoy these important life experiences with each of her parents. Both parties have a stake in being reasonable. Neither party will be permitted to dictate unilateral scheduling changes to the other. Consensus will be required or no modifications to the schedule will be permitted absent a court order or arbitral award. There shall be an Order to this effect.

94These terms will replace paragraph 11 and 12 of the Final Order of Justice Reid.

Extracurricular Activities

95A.Y. participates in Taekwondo and self-defence while in the father’s care. The mother does not support this activity, as reflected within the Open mediation report. In November 2021 the mother enrolled A.Y. in soccer. The father expressed his support for the activity but did not attend due to discomfort with the presence of Ms. H.

96Moving forward, each party will be empowered to enroll A.Y. in extracurricular activities which falls on their own parenting time, at their own expense. They will not attend extracurricular activities organized by the other without express invitation.

Involvement of Third Parties

97Conflict clearly exists between the father and the mother’s friend G. H. At times, the conflict with this third-party appeared to surpass the conflict between the parties.

98The father does not want to engage in exchanges with Ms. H. as a result of that conflict. However, he feels that if he does not succumb to the demand to meet Ms. H. as directed, he will be deprived his parenting time. Ms. H. was asked about some of her involvement in the parties’ conflict. She acknowledged being involved in some of the altercations reported to police. She acknowledged calling the police herself regarding the father on more than one occasion. She acknowledged taking photographs of the father’s house without his invitation and that she was the principal of his child’s school at the time. She acknowledged her awareness of the father’s preference not to have contact with her.

99I find that it is appropriate to place some parameters upon inviting third-parties to attend at parenting exchanges. However, these terms should not be construed to suggest that the mother cannot rely upon Ms. H. to assist in transporting the child to or from school or the bus stop.

100The mother testified that Ms. H. is ‘like family’ to A.Y. On this basis, she did not object to Ms. H. hitting A.Y. on the hand as discipline while in a caregiving role. When asked about hitting A.Y. on the hand for using a laptop without permission Ms. H. laughed. She described the event as a tap on the back of A.Y.’s hand. She classified the contact as a form of correction rather than discipline. Moving forward the mother indicated a willingness to abide by a court order which prohibited either party, or any third-party in a caregiving role to A.Y., from using any form of corporal punishment as a method of discipline. An Order will be made to that effect.

Conclusion

101It is the conclusion of this court that the threshold test of a material change in circumstances has been easily met. The circumstances of this family have escalated such that the best interests of A.Y. have been affected in a negative way. Without immediate intervention the problems will worsen. A variation order is necessary to prevent long-term psychological and emotional harm to A.Y. and to allow her to fulfil her potential.

102During the course of the trial, reference was made to efforts to negotiate the various issues with the assistance of legal counsel and third-party mediators. Moving forward, it appeared that both parties might be willing to consider the engagement of a Parenting Coordinator. This court has attempted to craft a comprehensive court order in direct language relating to all areas of parental conflict raised in this motion to change proceeding. However, not all parenting problems are foreseeable. In future, if the parties encounter difficulties in the interpretation or implementation of the Order made below, they are strongly encouraged to consider a fixed term of Parenting Coordination as a viable alternative dispute resolution option.

103The long-term health of A.Y. requires both parties to commit to strict compliance with both the terms and spirit of the Order that follows.

Order

104On the basis of the above, there shall be a Final Order to go as follows:

1. Paragraphs 4, 6, 7, 8, 9, 10, 11, and 12 of the Final Order of the Honourable Mr. Justice R.B. Reid dated June 7, 2019 are hereby terminated.

Decision-Making

2. The Applicant mother shall have sole decision-making authority over all major medical, dental, and therapeutic issues relating to the child A.Y., born in 2013.
3. The Respondent father shall have sole decision-making authority over all major educational issues relating to the child.
4. The Applicant mother shall be responsible for scheduling all regular medical and dental appointments for the child. The father shall only attend A.Y.’s medical or dental appointments if requested by the Applicant or if the appointments are scheduled on his parenting time.
5. The Applicant mother shall not schedule counselling/therapeutic appointments for the child during regular school hours without the written consent of the Respondent father.
6. The mother shall attempt to schedule A.Y.’s counselling/therapeutic appointments such that each parent will alternate taking A.Y. to the appointments on their own parenting time.
7. The child shall not be absent from school without the consent of both parties or medical note from the child’s physician which explains the necessity of her absence from school.
8. The Applicant and Respondent shall each have exclusive authority to make day-to-day decisions affecting the child during their respective parenting time, which shall specifically include the right to permit or decline to permit the child to participate in religious or cultural events and activities.
9. Both parties may attend at the child’s school activity days, sporting events, ceremonies, meetings, etc., regardless of the parenting schedule. They shall retain a respectful distance from one another if attending the same event.
10. Neither party shall use corporal punishment, nor permit any third-party caregiver to use corporal punishment, as a form of disciplining the child.

Communication

11. The parties shall communicate primarily using App Close.
12. The parties shall utilize the App Close calendar: a. The Respondent father shall forthwith input the regular parenting schedule and holiday parenting schedule into the calendar in accordance with the terms of this Order. b. The Applicant mother shall input all of the child’s scheduled medical, dental, and therapeutic (counselling) appointments, including the time, location, and name of the clinic or health professional, into the calendar immediately upon scheduling the appointment. c. The Respondent father shall input all of the child’s educational and school activities, PA Days, meetings, special events, etc., including particulars of the event, into the calendar immediately upon receiving notice of the event. d. Both parties shall input particulars of the child’s organized extracurricular activities scheduled on their own parenting time into the calendar.
13. The Applicant mother shall forthwith advise the father in writing of the names, addresses, and contact information for all of the child’s medical, dental, and therapeutic care providers.
14. Immediately following all medical or dental appointments relating to A.Y., the Applicant mother shall advise the father in writing of the nature of the visit, diagnoses, and any treatment(s) or follow-up measures prescribed by the health care provider.
15. Both parties shall forthwith notify the other parent of any emergency or unscheduled medical treatment required by the child.
16. Both parties shall be entitled to request information about A.Y.’s well-being, including in respect of her health and education, from any person who is likely to have such information and to be given such information by those persons subject to any applicable laws.
17. Both parents shall pre-arrange and facilitate reasonable telephone/video contact between the child and non-resident parent during any period that the child is not in the care of a parent for more than 5 overnights. This contact shall be entered in the App Close calendar in advance.
18. The child shall be permitted to telephone, email, video, or text both parents without restriction.
19. All telephone/video contact between the child and either parent shall be private and not recorded.

Parenting Time

20. The child shall have regular parenting time with both parties on an equal basis as follows: a. A.Y. shall always be in the care of the Respondent father from 9:00 a.m. (or school start time) on Mondays until 9:00 a.m. (or school start time) on Wednesdays; b. A.Y. shall always be in the care of the Applicant mother from 9:00 a.m. (or school start time) on Wednesdays until 9:00 a.m. (or school start time) on Fridays; and c. A.Y. shall be in the care of the Applicant and Respondent on an alternating weekend basis from 9:00 a.m. (or school start time) on Fridays until 9:00 a.m. (or school start time) on Mondays. For clarity, the existing weekend rotation shall not be disrupted.
21. Save and except as expressly provided herein, all statutory holidays, school holidays, Professional Activity Days from school, etc., shall follow the regular parenting schedule.
22. A.Y. shall have a telephone or video call with the non-resident parent on her birthday, and on the birthday of each parent if requested.
23. The following holiday parenting time shall override the regular parenting schedule: a. Winter Break: Unless otherwise agreed between the parties, A.Y.’s Winter Break from school shall be divided equally between the parties as follows: i. The school break shall be divided equally from bell time on the last day of school until bell time on the first return day of school. ii. A.Y. shall be in the care of the parent whose regularly occurring weekend follows the last day of school for the first half of the break. iii. A.Y. shall be in the care of the other parent for the second half of the break. iv. The mid-way parenting exchange time shall be at 12:00 p.m. In the event of an unequal number of overnights during the break from school, the additional overnight shall be spent with the parent who has the second half of the break. b. Summer Break: Unless otherwise agreed between the parties, A.Y.’s summer break from school shall be divided equally between the parties in two-week blocks, as follows: i. Commencing at bell time (or 3:30 p.m.) on the Friday of the last week of school, A.Y. shall be in the care of the parent whose regularly occurring weekend falls on that date, for a period of two consecutive weeks. ii. A.Y. shall next be in the care of the other parent for a period of two consecutive weeks. iii. This two-week alternating pattern shall continue for the balance of the summer. iv. Exchanges shall take place on Fridays at 3:30 p.m. v. The regular parenting schedule shall resume on Monday morning at 9:00 a.m. on the first week of school. c. Mother’s Day/Father’s Day: A.Y. shall always be in the care of the Applicant mother from 10:00 a.m. on Mother’s Day until 9:00 a.m. (or school start time) the following day, and in the care of the Respondent father from 10:00 a.m. on Father’s Day until 9:00 a.m. (or school start time) the following day.
24. Modifications to the regular parenting schedule to permit A.Y.’s attendance at special occasions, religious conventions, etc. shall only be made if both parties agree in writing, in advance, to a pre-defined period of reasonable make-up time.

Parenting Exchanges

25. Wherever possible parenting exchanges shall take place at the natural start and end times of A.Y.’s school day.
26. The parties shall not attend at the home of the other without advance written consent or pursuant to the terms of this court Order, nor request any third-party agent to do so in their stead.
27. In the event that the Applicant mother is unable to arrange for A.Y.’s transportation to school for attendance at bell time: a. The Applicant mother shall provide the Respondent father with a minimum of 48 hours’ written notice of the need for his assistance; and b. The father shall attend at the mother’s home at 8:30 a.m. to pick up A.Y. He shall remain within his vehicle during the exchange. A.Y. shall proceed to the father’s vehicle promptly at 8:30 a.m. and the father shall deliver the child to school.
28. In the event that the Applicant mother is unable to arrange for A.Y.’s transportation home from school at bell time, or home from A.Y.’s school bus stop: a. The Applicant mother shall provide the father with a minimum of 48 hours’ notice of the need for his assistance; b. A.Y. shall be instructed to take the school bus to the Respondent father’s home after school; and c. The Respondent father shall deliver the child to the mother’s home by no later than 5:30 p.m. He shall remain within his vehicle during the exchange.
29. Where not otherwise provided for in this Order, parenting exchanges shall take place at the Pen Centre located at 221 Glendale Avenue, St. Catharines, ON L2T 2K9. The parties shall retain a respectful distance from one another at such exchanges and shall not communicate except for purposes of brief, cordial salutation. Any third parties invited to attend at these parenting exchanges with the Applicant or Respondent shall be instructed to remain in the vehicle and not to engage in communication with the other parent. If the third-party does not follow this instruction, they shall not be permitted to attend future exchanges.

Extracurricular Activities

30. Each party may schedule extracurricular activities for the child on their own parenting time at their own expense.
31. Neither party shall schedule extracurricular events or activities for the child on the other parent’s parenting time without advance written consent.
32. Neither parent shall attend at the child’s extracurricular activities organized by the other parent without advance written consent.

Travel

33. Both parties are authorized to travel domestically and internationally with the child on notice to the other parent.
34. If either party intends to travel outside of Canada with the child: a. They shall provide a minimum of 24 hours’ written notice of any proposed day trips in the United States; b. They shall provide a minimum of 14 days’ written notice of any proposed overnight trips in the United States, including particulars of transportation (e.g. border crossing location, flight numbers, times, etc.) and lodgings; and c. They shall provide a minimum of 30 days’ written notice of any proposed trips outside of Canada/United States, including particulars of transportation (e.g. border crossing location, flight numbers, times, etc.) and lodgings.
35. If a party requests a written consent to travel document from the other parent, the travelling parent shall provide a copy of the draft travel consent form to the non-travelling parent. The non-travelling parent shall execute the consent within 7 days. Any costs of executing the travel document shall be borne by the travelling parent.

Official Documents

36. The Respondent father shall be custodian of the child’s Passport and Nexus Card: a. The Respondent father shall ensure the child’s Passport and Nexus Card remain current. b. The Applicant mother shall forthwith execute any consents or authorizations necessary for renewal. c. The Respondent father shall be responsible for all costs associated with maintaining these official documents. d. The Respondent father shall provide the Applicant mother with a current Notarized copy of the child’s Passport and Nexus Card. e. The Respondent father shall forthwith provide the Applicant mother with the original copies of the child’s Passport and Nexus Card when needed for travel, and by no later than five (5) days prior to the mother’s departure date. f. The Applicant mother shall forthwith return the child’s Passport and Nexus Card to the Respondent father upon her return from travel.
37. The Applicant mother shall be the custodian of the child’s Birth Certificate and Health Card: a. The Applicant mother shall ensure the child’s Health Card remains current. b. The Respondent father shall forthwith execute any consents or authorizations necessary for renewal. c. The Applicant mother shall be responsible for all costs associated with maintaining these official documents. d. The Applicant mother shall forthwith provide the Respondent father with a Notarized copy of the child’s Birth Certificate and Health Card.

Costs

38. If costs are an issue: a. The party seeking costs shall serve and file Cost Submissions, not exceeding five pages in length, exclusive of a Bill of Costs and applicable caselaw, by October 20, 2023; b. The responding party shall serve and file Responding Cost Submissions, not exceeding five pages in length, exclusive of bill of costs and applicable caselaw, by November 10, 2023; c. Reply Submissions, if any, not exceeding two pages in length, shall be served and filed by November 24, 2023; and d. If Cost Submissions are not served and filed by October 20, 2023, there shall be no costs payable arising from this action.