COURT FILE NO.: 85/20

DATE: 2024-03-05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

K.M.

Applicant

– and –

J.R.

Respondent

Self-Represented Applicant

A. Bach, Counsel for the Respondent

HEARD: February 20, 21, 23, 2024

JUDGMENT

THE HONOURABLE MR. JUSTICE A. PAZARATZ

1. A tragic family court riddle involving a four-year-old boy:

QUESTION: “What do you call a 22-day trial, resulting in a 477-paragraph judgment, and a 50-paragraph final order?”

ANSWER: “Round One”.

2. Technically, it was Round Two. My January 5, 2022 order varied an August 16, 2019 final order which the parties had consented to on the eve of their originally scheduled trial.

3. Round Three would have been a series of contempt motions the parents brought in June 2022. Wisely, they abandoned those cross-motions, with each party promising to behave.

4. And now, two years after the most recent “final” order, and I’ve just spent three days hearing another set of lengthy motions and cross-motions. Even figuring out what they really wanted was somewhat complicated:

a. Both parties initially brought motions only seeking relief under Rule 1(8) of the Family Law Rules (“the Rules”). The Applicant mother requested a declaration that the Respondent father has breached 15 separate paragraphs of the final order (she later increased it to 20 breached paragraphs). The father asked that the mother’s motion be dismissed, and sought a declaration that the mother has breached six paragraphs of the order.

b. On November 15, 2023, at the original hearing date of those motions, it became apparent that these requests for declaratory relief were merely a pre-cursor to anticipated motions to change. They were having a court battle to create ammunition for their next court battle.

c. Given the serious nature of the mutual allegations, and the transparent intention of both parties to seek changes to the final order, it was agreed that the parties would file supplemental materials – including actual motions to change – to facilitate comprehensive and efficient consideration of all the parenting issues and problems being alleged.

d. In addition to their Rule 1(8) motions, the parties then filed motions to change, confirming that that both parents were seeking major changes to the final order. The mother seeks to strengthen the sole decision-making she already has, and to dramatically reduce the father’s time. The father seeks to weaken the mother’s decision-making authority, and reduce her control over his and the child’s lives.

e. Just as they sought to re-open almost everything in their earlier motion to change the August 16, 2019 final order, they now seek to re-open the fundamental components of the January 5, 2022 final order.

f. It’s as if “final” has no meaning for litigants who don’t like the result.

g. To add further complication: During closing submissions it became apparent that the self-represented mother may have partially misunderstood the nature of our three-day hearing, and the legal tests involved. Paragraph 39 of my January 5, 2022 order stated that the parenting schedule “may be reviewed after three years from the date of this order.” (emphasis added). The mother appears to have mistakenly perceived that by being permitted to proceed with her motion to change, this accelerated the review which would otherwise not occur for another year. I clarified the distinction between a variation and a review, and that a “variation” requires a material change in circumstances while a “review” doesn’t. But it was regrettable that we had that unexpected discussion only after the three-day hearing was almost over.

h. And to add one more wrinkle: During closing submissions the parties presented their respective draft orders. In both cases, at the end of the hearing they were asking for some relief that hadn’t been pleaded, and hadn’t been dealt with in the evidence.

5. Two years ago I warned the mother and father that their hatefulness toward one another was ruining their son’s life. I tried to craft an order which was so specific and restrictive that it was intended to pre-empt opportunities for conflict and misadventure.

6. But if an eleven-page final order didn’t provide enough structure and clarity of expectations, it’s naive to think that any collection of words can stop angry people from finding ways to fight and disrespect one another.

7. The child Carson is now six. As before, I’m not using his real name. (To protect children’s privacy, I am using initials for the parents, and pseudonyms for everyone else.) And as before, Carson appears to love both of his parents absolutely equally. Despite the years of nonsense, upheaval and nastiness he has been exposed to, this innocent young child remains equally attached to both parents. He just wants adults to act like adults, so he can act like a child.

8. There’s no shame in parents having to resort to family court to address important issues. That’s what we’re here for.

9. Most parents only have to go through the court process once. Sometimes twice. Whether they find our system satisfactory or unsatisfactory -- either way -- most people don’t want to come back. (Which is good for everyone.)

10. But there’s a tipping point at which it becomes clear that parents who repeatedly return to court aren’t really seeking help. They pretend they’re doing it “for the sake of the child.” But really they have their own agenda. They’re using the trappings of the court as an institutional tool for vindication, punishment – and to perpetuate conflict.

11. They’re not here to solve the problem. They are the problem.

BACKGROUND

12. Some information about the people involved.

a. The mother resides in Waterford, Ontario.

b. The father resides in Brantford.

c. The parties were married on February 14, 2015.

d. They separated on January 30, 2016.

e. Their only child Carson was born in May 2017 – long after separation. (The mother says conception occurred as a result of a post-separation sexual assault – an allegation the father vehemently denies. This issue, more than any other, has stoked their conflict ever since.)

f. They were divorced on June 7, 2018.

g. The father was previously in a relationship with Jennifer, with whom he shares custody of their now 12-year-old son John on a 50-50 basis. Jennifer has two other children.

h. In June 2019 the mother married her current partner Larry. On October 13, 2021 – during a hiatus in the 22 day trial – she gave birth to a child of that relationship Gerald.

13. The 2021 trial was the oral hearing of motions to change the consent order of Justice Braid dated August 16, 2019. The main issues in 2021:

a. The 2019 order gave the mother sole decision-making authority on all issues, after consultation with the father. At the 2021 motion the mother wanted to continue to have sole decision-making authority, but with restrictions to prevent the father from attending medical appointments in person when the child is in her care. The father wanted decision-making authority transferred to him.

b. The 2019 order gave the father 12 overnights with Carson in a 28-day cycle. In 2021 the mother wanted to reduce the father’s time to six overnights (plus four non-overnights) in a 28-day cycle. The father wanted to increase his time to 14 overnights in a 28-day cycle.

14. For context, I will summarize some of the findings and observations set out in the January 5, 2022 judgment which resulted in the detailed, multi-directional final order.

a. This is a “high conflict” relationship.

b. The mother described the father as controlling, abusive, intimidating, and uncooperative. She said he has serious anger control issues and is unable to control his temper during parenting exchanges, creating horrible scenes in the presence of their son. She said he acts unilaterally and has no respect for the law or orders. She accused the father of engaging in parental alienation, to undermine her relationship with the child.

c. The father denied the mother’s allegations. He described her as aggressive and mentally unstable, with a “Jekyll and Hyde” personality. He said she was a shrewd manipulator, and that she and her husband Larry are sneaky and engaged in various activities – like making false reports to authorities on unrelated matters – in a campaign to ruin his life and undermine his ability to pursue his family court case. He said the mother portrays herself as nice and passive, but she uses her husband Larry to do her dirty work. He emphasized that despite the mother’s relentless efforts to gather evidence against him – including regular video and audio recording of exchanges – that despite all that scrutiny, none of the mother’s allegations had even been proven or verified by any third party. To the contrary, her complaints were generally dismissed, and investigators consistently concluded Carson was completely safe and well-cared for while with the father.

d. Following separation the parties had significant involvement with the Children’s Aid Society of Hamilton (as it was then known) (“CAS”), but no protection application was ever commenced. Similarly, the parties had extensive involvement with police, but no charges were ever laid.

e. By far the majority of the evidence at the trial focused on the parents’ relationship with one another, rather than their respective relationships with Carson.

f. They presented a great deal of evidence about constant problems during face-to-face exchanges, most of them during parenting exchanges at a police station. I found that both parties (and their partners) were responsible for exposing Carson to extremely upsetting situations. Ultimately, I ordered that there should never be face-to-face exchanges in the future, and in no circumstances should police stations ever be used. (More generally, I gave a strong warning against families using police stations for exchanges.)

g. The parties gave evidence at length about hundreds of pages of text messages exchanged using a parenting app called AppClose. Communication between the parties has consistently been a huge problem. Some of the mother’s messages were disrespectful. Many of the father’s messages were disrespectful and aggressive. A large number of communications back and forth were unproductive, provocative, and misleading. At times Carson’s health and well-being was jeopardized by incomplete or erroneous information exchanged by the parents. I concluded that while both parties were responsible for communication problems, the mother’s messages to the father were always civil and mostly child-focussed. In contrast the father’s messages were frequently unpleasant, offensive, profane and crudely insulting. At least one-third of the father’s messages had nothing to do with Carson. They were more of a hateful rant.

h. In assessing credibility at the trial, I described the mother as a very controlled and disciplined witness. On issues relating to her interaction with Carson she was highly credible. On issues relating to the conflict between herself and the father, she was more combative and shrewd. She was evasive in relation to her role in the outrageous campaign carried out by her husband Larry who maliciously gave false information to an insurance company which resulted in the father wrongly having his disability benefits terminated.

i. The father – who was self-represented in 2021 – was an unruly hothead throughout the trial (by Zoom), frequently disrupting the proceeding and being abusive with witnesses. His anger management issues and lack of self-control were entirely consistent with the mother’s evidence. He had no filters. But on the issue of his relationship with Carson he gave evidence in a sensitive, comprehensive and compelling manner. The strength of his relationship with the young child was confirmed by other witnesses including a CAS worker. At paragraph 105 of my judgment I explained a dilemma which continues to this day:

“But apart from being an enigmatic witness, the father poses a difficult question for our family court system: What do we do with a bad ex-spouse – and an even worse litigant – who just happens to be a really good dad?”

j. A CAS witness was quite helpful. She didn’t seem to buy into either parent’s attack on the other. She didn’t consider either parent was more to blame for the conflict. She said they have a joint responsibility to shield Carson. She urged the father to be less aggressive during exchanges. But she said the mother also contributed to the conflict – whether or not she was aware of it; and whether or not she intended to do so. The Society worker described the parents in equal terms almost across the board. Equal love for Carson. Equal attachment. Equal familiarity with his needs. Equal parenting skills. Equally secure home environments. Equal.

k. Both parties had engaged in inappropriate video and audio recording of exchanges or other situations. In my judgment I emphasized how unfair and damaging this can be for a child.

l. I made findings that the father had acted unilaterally about school issues, in contravention of the mother’s authority under the 2019 consent order.

m. I made findings that the father had not respected the mother’s decision-making authority in relation to some medical issues.

n. I made findings that the father had been uncooperative about the mother’s vacation plan with the child, forcing the mother to needlessly spend money on a lawyer and bring a motion to rectify the situation.

o. I made findings that the father regularly ignored court orders and disclosure requests.

p. I made findings that the mother advanced vague and completely unsubstantiated allegations of substance abuse by the father.

q. I made findings that the mother made repeated complaints to CAS alleging problems with the father’s home environment, or inappropriate behaviours in the home – and that CAS consistently reported back that the mother’s concerns were unfounded.

r. I made findings that the mother made unsubstantiated allegations that the father failed to make disclosure with respect to criminal charges in Nipissing. It turned out there never were any criminal charges in Nipissing. The mother never gave an explanation as to why she had advanced the allegation in the first place.

s. I made findings that the mother falsely described an incident in which she said the father used a baseball bat as a weapon against another individual. It turned out the father was the victim of someone who attacked him wielding a baseball bat and a knife. He disarmed the assailant and held him until police arrived.

t. I made findings that there were other allegations against the father which turned out to be without any justification whatsoever. The mother and Larry would pounce on the slightest possibility that the father had done something wrong; wield the accusation; and hope that the evidence would follow.

u. At trial the mother submitted the father’s parenting time should be significantly reduced because he had been physically abusive to the child. I received three reports prepared by the Child Advocacy and Assessment Program at McMaster Children’s Hospital (CAAP), which the mother referred to in support of her position. But detailed evidence from a CAS worker – and the reports themselves – made it clear that Carson had, at different times, reported physical abuse or excessive discipline by both parents. He had suffered injuries while in the care of each of the parents. The CAS worker testified that after a thorough investigation she had no worries about the child being physically harmed by anyone.

v. At trial, the mother complained about the father’s decisions in relations to Carson’s use of underwear, and the video games the father allowed the boy to watch. The father denied any wrongdoing. I agreed with the CAS worker that these were not “protection” issues, and that this clash of parenting styles could more appropriately be addressed through better communication between the parties.

w. I made findings that both parents were quite capable of addressing Carson’s physical health, but they were mis-managing his emotional health. They both agreed that Carson was at times extremely unhappy, but they each blamed the other for causing the child’s distress. I found that while the mother showed more insight with respect to the need for counselling --- for both Carson and herself – there was no evidence to support either parent’s allegation that the other parent has a serious mental health problem. The father’s family doctor and the child’s pediatrician stated they had no concerns about the father’s mental health or his parenting skills.

x. There was a great deal of evidence and discussion about the father’s temperament. He acknowledged that in around 2014 he took an anger management program after being charged in relation to a former partner (the charge was resolved by a peace bond). He denied having anger issues, and he emphatically denied ever behaving aggressively toward either Carson or his older son John. The mother pointed to the father’s daily disruptions during the trial, basically arguing “If this is how he behaves in the courtroom, what must he be like in his living room?” I concluded that while the father’s contemptuous and aggressive behaviour during the trial could not be ignored or excused, neither should it be misapplied. I noted that my objective at the trial was to determine what parenting arrangement was in the best interests of the child. And in that determination, a person’s behaviour as a parent is more relevant than their behaviour as a litigant.

y. I concluded that in every respect Carson has an extremely close relationship with both the mother and the father. And despite many dramatic differences in their behaviour, personalities, and parenting styles, the evidence was overwhelming that when they aren’t interacting with each other, the mother and father are both excellent parents.

z. I also addressed the issue of sibling contact for Carson. The father has an older child John who lives with him half the time in a shared parenting arrangement. The evidence was clear that Carson has a very strong relationship with John. But during the trial the mother gave birth to a son of her relationship with Larry. So Carson has a sibling in each household. The father proposed that an equal time arrangement would allow both sibling relationships to flourish. But one of the reasons the mother wanted Carson to spend the majority of his time in her household was to allow Carson to spend as much time as possible with his baby brother. The mother showed no insight into the emotional impact on Carson if his time with John were to be reduced by about 50%.

aa. I concluded that a material change in circumstances had occurred requiring some variation of the August 2019 order.

bb. I concluded that the most important single change required to improve Carson’s life was to ensure that he is no longer exposed to the mother and father interacting with one another in his presence. Face-to-face contact between the parents had to be eliminated.

cc. I agreed with the mother that she should continue to have sole decision-making authority for Carson. I went further, and found that her authority needed to be strengthened, to achieve stability and predictability for the child. The mother had made appropriate decisions in relation to Carson’s health, education and development, and for the most part she properly consulted with the father. In contrast the father subverted the consultation process through his aggressive communications, lack of co-operation, impulsivity, resentment, defiance and unilateral behaviour. I found that Carson’s life had been filled with far too much instability and commotion. He needed a parenting arrangement in which decisions are made in a mature, calm, thoughtful and consistent manner.

dd. Given the serious problem with inappropriate text messaging, my order included strict limits on the content, frequency and size of texts – with provision that the mother’s obligation to consult would be suspended if the father abused the consultation process.

ee. I agreed with the CAS recommendation that the parents utilize a third-party support person not only for exchanges but also to improve communications.

ff. I recommended to the parties that they retain a parenting coordinator, but I expressed my view that the court could not compel them to do so. The mother said she was willing to retain a parenting coordinator, not only to improve communications but also in the hope that the selected professional could assist as a mediator. At trial, the father indicated he was not prepared to agree to a parenting co-ordinator. I urged him to reconsider.

gg. I reviewed the competing positions with respect to parenting time, and the many considerations including the status quo, stability, and promoting parental and sibling relationships. I found that there was absolutely no justification for the mother’s proposal that the father’s time be reduced from 12 to six overnights in a 28 day cycle. The existing arrangement had a number of drawbacks, including the fact that the mother was having full uninterrupted weekends, but the father never had full uninterrupted weekends. I agreed with the father that a pure “weekabout” arrangement would be best, allowing an equal sharing of weekends; only slightly increasing Carson’s time with the father; and importantly, reducing the number of exchanges between households.

hh. I set out a regime for neutral exchange locations (mainly the child’s school) so the parties would never interact face-to-face in the presence of Carson. I specified that in light of the horrible experiences Carson had endured during many exchanges at the Hamilton Mountain Police Station, this type of facility was never again to be used.

ii. During the 22-day trial, I received overwhelming evidence that whenever either parent requested any sort of change or modification of the schedule it would lead to enormous conflict which negatively impacted on Carson in many ways. There were numerous examples of each parent taking a nasty and intransigent approach, and that their default position was to litigate everything. As a result, in the unique circumstances of this high conflict case, I ordered that the weekabout schedule would presumptively continue, 52 weeks per year. There would be no built-in provision for any deviation for special occasions (with the exception of Mother’s Day and Father’s Day which could be easily accommodated with a minor change to the presumptive Friday exchange time). This would leave both parties with equal incentive to start being more reasonable and negotiate modifications to the schedule and mutual concessions. Either they cooperated, or they’d be stuck with the rigid schedule. But neither they nor taxpayers could afford for them to come back to court every time they have a minor dispute.

jj. Given the amount of evidence I received about this family, and the findings and objectives relating to my very detailed order, I determined I would remain seized of any future issues relating to Carson for a period of three years. That’s why this motion has come back to me.

CURRENT OVERVIEW

15. I will review the evidence in some detail. But to provide an overview with respect to my analysis, I will summarize some key findings on these motions:

a. Little has actually changed between these parties. In some ways that’s good. In some ways it’s deeply disappointing.

b. The parents still have an extremely “high conflict” relationship. They’re both to blame, just in different ways. Apportioning responsibility between them is difficult, but it’s likely more equal than they’re willing to acknowledge.

c. The father is still uncooperative, intimidating and aggressive. Fortunately there have been no more scenes in front of the child, because the final order prohibits face-to-face contact during exchanges.

d. The mother is still calm and well-spoken, but extremely controlling and dismissive of the father’s parental judgment and his relationship with Carson.

e. The father has continued to send inappropriate, aggressive and provocative text messages.

f. The mother has continued to make reports about the father to the police and CAS. As before, each report was investigated (resulting in needless intrusion and disruption for father and child). As before, none of the mother’s complaints have resulted in any determination that the father has done anything wrong, or that the child is not being properly cared for by the father.

g. The father has continued to ignore some court ordered terms he didn’t agree with. The mother has ignored at least one, as well.

h. The mother has continued to make allegations that the father is lying and committing fraud – without a shred of proof.

i. They still can’t agree on Carson’s counselling, whether he needs it, and the extent to which each parent should be involved.

j. As before, the majority of the evidence I received on these motions focused on the parents’ relationship with one another, rather than their respective relationships with Carson. At the 2021 trial the evidence (including professional witnesses) demonstrated that both these parents were equal in just about every way. Equal in their loving relationship and bond with Carson. Equal in parenting skills. Equally able to meet the child’s needs. Equally responsible for any challenges. With only a few important exceptions which I will set out below, the evidence on this motion satisfies me that their equality in Carson’s life remains. And needs to be promoted, for the child’s sake.

k. As before, one of the parties was self-represented (this time the mother) and the other had counsel.

l. The parties were cross-examined on their affidavits, and they were both very difficult witnesses. On many topics they were both argumentative and at various times evasive. They kept interrupting and arguing with one another. During her cross-examination of the father, if the mother wasn’t getting the answer she wanted she would aggressively cut him off. He, in turn, would constantly interrupt her questions. Their conflict is not a one-way street.

m. Cross-examination revealed inconsistencies and weakness in their respective evidence. The father got caught in some contradictions. The mother’s narrative was undermined by reliance on transparent hearsay, and her bald presumptions that she has superior parenting skills, and that the father is incompetent. The mother offered conclusory statements with little or no supporting evidence.

n. Inexplicably, the father attached a polygraph test to one of his affidavits. This was very unhelpful. His lawyer offered no case law or legal basis for the admissibility of the polygraph test. I ignored it.

o. As before, the father wants more decision-making authority, even though his behaviour and attitude raise serious questions about his parental judgment in relation to the child’s medical care and school attendance.

p. As before, the mother seeks to dramatically (even more dramatically than last time) reduce the father’s parenting time, without any apparent consideration of the impact this would have on the child. Her lack of insight on this topic is really quite concerning.

q. Without question, the evidence confirms there are problems which constitute a material change and need to be addressed. But rather than focus on the few changes which would make Carson’s life better, both parties have approached their current motions as opportunities to relitigate everything.

JANUARY 5, 2022 FINAL ORDER

16. This is my January 5, 2022 final order which both parties now seek to change:

17. The parenting provisions of final order of Justice Braid dated August 16, 2019 shall be replaced with the following final order.

DECISIONS

2. The mother shall have sole decision-making authority in relation to all issues relating to the child (Carson). This shall include but not be limited to: schooling, education, medical, health, counselling, and religious decisions relating to the child.

3. Subject to the provisions set out below in relation to communication between the parties, the mother shall consult with the father on all major decisions involving the child. If time permits, the mother shall provide the father with at least 10 days advance written notice of the issue and her proposed decision. The father shall provide any response and input as soon as he has formulated a position. After the notice period has expired, the mother's decision shall be final.

4. The mother shall have the sole authority to select and instruct all third-party service providers for the child, including doctors, health care facilities and personnel, counsellors, therapists, schools, educational personnel, and other professionals. Each service provider shall be provided with full information as to the identity and contact information for both the father and the mother. The service provider shall also be advised of the mother's sole decision-making authority, and the father's unfettered right to receive information. The mother shall keep the father fully informed as to the particulars of all such service providers as soon as appointments, registrations or contacts arise. The father shall not be permitted to initiate the involvement of any new or replacement service provider for the child, or to terminate or change an existing service provider, without the prior written approval of the mother.

5. The mother shall be entitled to organize and schedule all appointments which involve the participation or presence of the child. This shall include the right to schedule appointments during times when the child would ordinarily be in her care.

6. The mother shall notify the father in advance with respect to the scheduling and purpose of all meetings and appointments, and provide all necessary contact information with respect to the service provider. Notification shall be immediately upon the scheduling commitment being made.

7. Unless the parties agree in advance, and in writing, the child shall be taken to all non-emergency appointments by the parent who ordinarily has care of the child at the time pursuant to the regular schedule. The other parent may attend electronically, by video or audio (their choice) on speaker, but subject to the policies and determination of the service provider conducting the appointment or meeting. If the parent participating remotely engages in unpleasant or disruptive behaviour, the video connection shall be terminated (if applicable), and the parent's audio shall be muted (to allow the remote parent to only listen to the discussion).

8. For all non-emergency appointments in relation to the child which do not include the child's physical

presence (such as parent-teacher interviews), each parent shall be entitled to arrange their own appointment. They shall notify one another of all appointments made and provide full particulars. Notification shall be immediately upon the scheduling commitment being made. Unless the parties agree in advance and in writing, the parent who scheduled the appointment shall attend alone.

9. Following any appointment in relation to the child (whether the child was present or not),if only one parent was present, that parent shall provide the other parent with a brief written summary of the discussion which occurred; any recommendations; details of any subsequent appointments; and in the.

case of the mother, any decisions or commitments which were made. If any documents were created, executed or provided at that appointment, the other parent shall be provided with copies of those documents immediately.

10. Both parties shall have the same right and entitlement to information from third parties relating to the health, education, and welfare of the child, without the necessity of any release, direction, or acknowledgement executed by the parties. The father may receive information from such third-party service providers. But he may not instruct such service providers without the advance written consent

of the mother, and in no circumstance may he cancel or change an arrangement the mother has made for the child.

11. Both parents shall ensure that the child consistently attends school and/or daycare when the child is in their care. The child may only miss school or daycare for reason of illness, emergency, travel (as provided for herein) or other special event. The parent who does not send the child to school shall notify the other parent as soon as the decision is made. Similarly, if the child does not attend any scheduled appointment or meeting, the parent having charge of the child at the time shall notify the other parent in writing immediately, with an explanation.

12. Each party shall have the right to make day-to-day decisions for the child while (Carson) is in their care. But the father shall not be entitled to use this provision to disregard, countermand, cancel, or contradict a decision or commitment which the mother has made pursuant to her sole decision-making

authority.

COMMUNICATION: NON-EMERGENCY

13. The parties shall only communicate with one another in relation to (Carson).

14. All communications (other than emergency telephone calls) between the parties shall be in writing, using the parenting messaging service AppClose.

15. Only child-related issues shall be discussed on AppClose, including topics such as scheduling, activities, and the child's health.

16. All communications shall be civil, efficient, respectful, and child-focused.

17. Neither party shall allow any other person to author or send AppClose messages in the name of the parent.

18. Neither party shall allow (Carson) to read or gain access to the AppClose messages.

19. Messages should be brief, and if possible, not more than once per day. Each party should check for messages at least once per evening. Non-emergency inquiries should be responded to within 24 hours.

20. In order to prevent any reoccurrence of past problems with abusive or inappropriate messages being conveyed by the father, if the mother receives any message from the father which includes any profanity, threats, insults, ridicule, disrespectful language, or abusive content, the mother's obligation to consult with the father on any issue shall be suspended for a period of 30 days. If the mother receives three abusive messages in any calendar month, her obligation to consult with the father shall be indefinitely suspended. The onus shall then be on the father to return the matter to court if he wishes to reinstate an entitlement to consultation. Given the extremely serious historic problems with abusive and

aggressive communications from the father, and the detrimental impact this has had in relation to parenting of (Carson), the father should presume that if his inappropriate texts cause the mother to indefinitely suspend consultation, there will be a very high onus on him to establish why it should be reinstated.

COMMUNICATION: EMERGENCY

21. In the event of an emergency involving the child, including any visit to an emergency room, an urgent care facility, or an urgent medical appointment, the parent who has charge of the child shall immediately telephone the other parent - at the earliest possible time - to provide full particulars. The other parent shall be permitted to attend at the emergency or urgent care facility. Upon the mother

being in attendance, she shall assume decision-making authority, irrespective of whether it is her time with the child. If the other parent does not attend in person, the parent who took the child for urgent treatment shall provide the other parent with ongoing updates, and a written summary upon the conclusion of the attendance (including copies of any discharge instructions, diagnosis, prescriptions, referrals, etc., to be conveyed immediately by AppClose.

22. In the event that the child exhibits any illness, discomfort, or injury while in the care of one of the parents, that parent shall notify the other parent within 12 hours using AppClose, and respond to reasonable requests for updates as to the child's situation.

23. In the event that either party becomes aware that medication has been prescribed for (Carson), the parent receiving the information shall notify the other forthwith (and provide copies of all relevant prescriptions or related documentation). They are to follow medical advice. The parties shall confirm

with one another in writing what medications they will be administering during the time that the child is in their care. They will immediately notify one another if there has been a change in the medical recommendation and/or the medication (dosage or frequency) being administered.

COMMUNICATION IN PRESENCE OF CHILD

24. Neither party shall speak negatively about the other parent (or their partner or family members) to the child or in the presence of the child, nor shall they allow others to make such statements in the presence of the child.

25. Each parent shall encourage the child to have a respectful and positive relationship toward the other parent.

CONTACT INFORMATION

26. The parties shall at all times keep one another fully informed as to their residential address, home telephone number (if they have one), cellphone number (if they have one), and an email address. In the event that any of those particulars change, the other party is to be notified as soon as the change is

arranged, with confirmation when the change is implemented.

27. In the event that either party intends to relocate their residential address (even within the same community) they shall provide the other party with 60 days' advance written notice, including the exact address where they will be moving, and details as to how the relocation will affect the child.

PARENTING TIME

28. The parents shall share equal time with the child on an alternating week basis.

a) The parties must arrange exchanges so that the mother and father (or their partners or relatives) never interact with one another in the presence of the child.

b) The exchange must always be conducted in a neutral setting or facility.

c) To the extent possible, exchanges should occur at a location where the child would ordinarily be in attendance, such as a school or daycare facility.

d) If neither a school nor daycare facility are available, the parties should arrange (and jointly pay for) an institutional parenting exchange facility.

e) The parties shall be required to modify weekly exchange times as may be required to reflect the availability of the school, daycare, or institutional parenting exchange facility they are using. Any such modifications should be consistent on a week to week basis, so that each parent's time and involvement with the child remains equal.

f) If neither a school, daycare, nor institutional parenting exchange facility are available, the parents shall be required to jointly retain and pay for a private childcare provider to provide an exchange venue which would allow non-face-to-face exchanges, with a time gap of at least 15 minutes between when one parent delivers the child and the other parent picks the child up. The parent

dropping the child off shall leave the vicinity immediately. The parent picking up the child shall not arrive early.

g) If an institutional exchange facility or a private individual is required to provide the exchange venue, and if the parties are unable to agree as to the facility, person, or location, the father shall be entitled to make the selection. The mother shall be entitled to interview and investigate the proposed exchange supervisor. The mother's approval of the facility or person shall not be unreasonably withheld. The rationale for the father having final say with respect to the exchanges away from school or daycare is that the mother will have had control over the selection of the school or daycare facility. When exchanges are at school/daycare, it will be closer to the mother's residence. So other exchanges should be closer to the father's residence.

h) In no circumstance should parenting exchanges ever take place at, or in the vicinity of, a police station.

i) To the extent possible the parents should attend in person for pick-ups and drop- offs (so long as they do not meet face-to-face). But if they are not able to do so, they may have a relative or partner (known to (Carson)) transport the child.

j) The implementation of this new week about schedule shall continue the previously existing pattern of alternating weeks established by the November 20, 2020 temporary order.

29. In the absence of any other agreement in writing, and subject to the provisions set out above, exchanges shall occur on Fridays. Presumptively, they shall occur at the end of the school day. If school is not in session, they shall presumptively occur at 6:00 p.m. (subject to such scheduling modifications as may be required to facilitate all of the strict objectives set out above).

30. Each parent shall be deemed to assume responsibility and authority for the child for the whole of the seven-day period the child is in their care. This includes responsibility to take the child to school (and assume responsibility for the child if the school needs to contact a parent in relation to illness or any other issue); responsibility and authority to ensure that the child attends extracurricular and recreational activities; and authority to take the child to any ongoing medical or therapeutic services which fall on their time.

31. Neither parent is ever personally attend an appointment, event or activity falling on the other parent's time, unless there has been advance agreement in writing.

32. If Mother's Day falls on a weekend which would otherwise be part of the father's time, the mother shall have that weekend, and instead of the exchange occurring o n the preceding Friday, the exchange will occur on the Monday morning after Mother's Day (which will create a nine-day block of time).

33. If Father's Day falls on a weekend which would otherwise be part of the mother's time, the father shall have that weekend, and instead of the exchange occurring on the preceding Friday, the exchange will occur on the Monday morning after Father's Day (which will create a nine-day block of time).

34. During any period when the child is in their care, each parent shall ensure that the child initiates video contact with the other parent at least once every third day. In the absence of any other agreement, the video contact shall be 30 minutes before bedtime, for at least 10 minutes.

35. Each parent shall be permitted to travel outside of Canada with the child for a brief trip (for example cross-border shopping or an event) not exceeding one overnight, so long as they provide the other parent with particulars at least 24 hours in advance.

36. If a parent wishes to travel outside of Canada with the child for vacation purposes, they shall provide the other parent with written particulars of the vacation at least 30 days in advance, including confirmation of travel arrangements, the destination, accommodation arrangements, and a telephone number where they can be reached during the vacation (it can be a cellphone, but the cellphone must be set up to receive calls at the vacation location). So long as the proposed vacation falls within the ordinary time the parent is entitled to in the week about arrangement, the other parent's consent to the trip is not required. If the proposed vacation extends into the other parent's time in the week about schedule, then the non-travelling parent's consent shall be required for the vacation.

37. In even numbered years, the mother shall maintain possession of the child's passport and original documents (and be responsible for renewal of any documents), and she shall make the original documents available to the father immediately upon being given notice of any travel plans, as set out above. In odd numbered years, the father shall maintain possession of the child's passport and original documents (and be responsible for renewal of any documents), and he shall make the original documents available to the mother immediately upon being given notice of any travel plans, as set out above.

38. The absence of any additional scheduling provisions for holidays and special occasions is not an oversight, but a specific determination intended to eliminate opportunities for further conflict and litigation. Both parties are entitled (and encouraged) to agree to mutually beneficial scheduling accommodations. But without specific mutual agreement, confirmed in writing in advance, there are to be no scheduling deviations, and both parties will have to organize their lives and their schedules to comply with the basic week about schedule. Inability to agree to reach agreement on any scheduling deviations or compromises will not constitute a material change in circumstances, because the court is fully anticipating that given the discord between the parties, they may be unable to agree to any compromises or changes.

39. The issue of specification of scheduling other than alternate weeks may be reviewed after three years from the date of this order.

GENERAL RESTRICTIONS

40. Neither parent shall consume non-medically prescribed drugs (including marijuana) during any period when the child is in their care.

41. Neither parent shall allow the child to be exposed to cigarette smoke in their residence, or in an enclosed space (such as a vehicle). They shall make their best efforts to reduce the child's exposure to cigarette smoke in other settings.

42. Neither parent shall consume alcohol in excess during any period when the child is in their care.

43. Neither parent shall cause or allow the child to be audio or video recorded during exchanges.

44. Neither parent shall cause or allow the child to be audio or video recorded for the purpose of gathering evidence in relation to a complaint or court proceeding.

45. Neither parent shall allow the child to be exposed to cat or dog dander. Unless otherwise agreed between the parties in writing, neither party shall allow any dogs or cats to be present in their home.

ANNUAL DISCLOSURE

46. The parties shall provide one another with copies of their Income Tax Returns (as filed) and Notices of Assessment (as received from Canada Revenue Agency) annually by June 30^th.

47. If the parties are unable to resolve child support adjustments, that issue may be returned by motion.

48. Justice Pazaratz shall remain seized of any future issues which may arise in relation to (Carson) Rowley (born May 6, 2017) for a period of three years from the date of this order, subject to his schedule allowing a response in a timely manner. Should Justice Pazaratz not be scheduled to be sitting, the Trial Coordinator shall contact him to ascertain whether he can make himself available.

49. If the parties wish to address any remaining issues other than costs, they should contact the Trial Coordinator within 15 days of the date of this judgment, to set a time for the matter to be spoken to by Zoom. The parties should notify one another in advance of the specific topic(s) they wish to address.

50. If only costs need to be addressed, this shall be done by way of written submissions, not to exceed three pages (page limit does not include offers, a bill of costs, and attachments of not more than four additional pages). Deadlines for service and filing of costs submissions:

a) Mother's submissions within 21 days of the date of the judgment.

b) Father's submissions within 10 days of receiving the mother's submissions (or, if the mother does not file submissions re costs, within 31 days of the date of the judgement, if the father is seeking costs).

c) Mother's reply submissions within 7 days of receiving the father's submissions.

d) If the mother's reply submissions were the only costs submissions received by the father, he may serve and file his own reply submissions within 7 days.

MOTHER’S MOTIONS

17. The mother’s December 12, 2023 Amended Notice of Motion includes requests for the following declaratory relief under Rule 1(8):

a. A declaration that the father has breached the following paragraphs of the January 5, 2022 final order: 2, 4, 7, 9, 10, 11, 12, 13, 14, 15, 16, 19, 21, 22, 23, 30, 34, 37, 41 and 45.

b. Father to remove his bulldog Thor from his home.

c. Father to provide mother a child’s passport application with his signature/contact information in the “Other Parent” section within seven days.

d. Father to provide mother with proof he has signed Carson up for childcare/babysitting with a childcare provider who will not expose Carson to cat/dog dander and/or cigarette smoke, within seven days.

e. Costs

f. (The Mother no longer seeks a monetary penalty for breaches of the final order, as requested in her earlier Notice of Motion.)

18. The mother’s December 12, 2023 Motion to Change includes the following requests in relation to the January 5, 2022 order:

On a final basis:

a. Paragraph 2: Expand mother’s sole decision-making authority to include the child’s media and technology use.

b. Paragraph 3: Replace the requirement that the mother “shall consult with the father” with “shall inform the father”. Replace “The father shall provide any response and input as soon as he has formulated a position. After the notice period has expired, the mother's decision shall be final”, with “The father may provide any input, but the mother's decision shall be final."

c. Add: Mother to have sole authority to select the child’s school. The child’s school shall be in the mother’s catchment area.

d. Paragraph 4: Expand mother’s authority to select and instruct third-party service providers to include “daycare (registered or unregistered), childcare provider, and babysitter.”

e. Paragraph 5: Expand mother’s authority to schedule appointments for the child “regardless of whose care the child is in.” Father to be required to ensure child attends required appointments.

f. Paragraph 6: Currently requires mother to notify father of child’s appointments. This should be mutual (in the event the father schedules any appointments).

g. Paragraph 7: Expand to require that if the mother is unable to attend a medical appointment in person, over video or by phone, the father shall have the medical professional print a copy of the visit notes, the child’s medical chart, and any diagnoses, treatments, recommendations, and/or medications prescribed to the child. This documentation must be provided to the mother immediately upon receipt.

h. Ordinary parenting time: Child to reside primarily with the mother. Father’s time to be alternate weekends from Friday after school (or evenings when school is closed) to Sunday evening.

i. Summer parenting time: Father to have one full week in each of July and August, non-consecutive, week to start with the father’s regular weekend and continue until the Friday. Father to notify mother of his proposed dates by May 31^st each year.

j. Christmas parenting time: In even-numbered years, beginning in 2024, father to have from 12 noon on December 24 to 12 noon on December 25", unless otherwise agreed-to in writing; In odd-numbered years, beginning in 2025, father to have from 12 noon on December 25 to 12 noon December 26, unless otherwise agreed-to in writing.

k. Paragraph 28(g): If an institutional or neutral exchange location/person is required, if parties cannot agree, rather than father making the selection it should be the mother.

l. If the father will not be taking the child to a scheduled recreational activity during his time, he may request that the mother take the child and provide as much notice as possible. The mother may accept or refuse based on her availability.

m. Paragraph 31: Remove the restriction preventing either parent from attending a child’s activity falling on the other parent’s time.

n. Paragraph 32: If Mother’s Day falls on the father’s weekend, the child shall remain with the mother that weekend.

o. Paragraph 33: If Father’s Day falls on the mother’s weekend, the child shall remain with the father that weekend.

p. Paragraph 34: The mother shall ensure that the child initiates video contact with the father at least every third day. The father shall ensure that the mother has video contact with the child on the Saturday (of his alternate weekend) if/when requested by the mother or the child.

q. Passport: Mother to have sole authority to apply for the child’s passport without father’s consent or signature. If the government requires the father’s consent, he shall provide it as soon as possible, and not exceed deadlines.

r. Paragraph 37: Rather than the parties retaining possession of the child’s passport in alternating years, mother to always retain child’s passport and original documents and make them available as required.

s. Costs, including unpaid costs of $2,825.00 awarded to the mother by Justice Lafreniere on May 4, 2021.

On a temporary basis:

t. Father to provide proof of parental controls on all media accessible to Carson, and not allow the child to view media and video games that are not age appropriate.

u. Father to remove his dog Thor from his home.

v. Father to sign passport documents within 7 days.

w. Father to provide proof he’s not using a childcare provider who will expose the child to cat/dog dander and/or cigarette smoke within seven days.

x. Depending on any change in the time-sharing arrangement, child support may be addressed by way of a future motion.

FATHER’S MOTIONS

19. The father never amended his March 3, 2023 Rule 1(8) motion which included requests for the following:

a. A declaration that the mother has breached paragraphs 12, 15, 16, 22, 36, 37 of the Final Order

b. The mother to forthwith provide the child’s passport to the father.

c. The mother shall pay a monetary penalty of $10.00 per day for each day that she has failed to provide the child’s passport.

d. The mother’s motion shall be dismissed.

e. Costs.

20. The father’s January 12, 2024 Response to Motion to Change includes the following requests in relation to the January 5, 2022 order: (Some of his proposed terms merely re-state the existing order. Some seek to reverse authority. Several provisions relate to underlying geographic complications caused by the mother residing in Waterford and the father residing in Brantford.)

a. Paragraph 2: The mother’s sole decision-making authority “in relation to all issues” should be changed to sole decision-making authority in relation to “religion, non-emergency major medical and health decisions”. “In the alternative, the father shall have sole decision-making authority...” in relation to these issues. If the father has sole decision-making, he would be bound by a reversed version of the consultation and final determination process set out in paragraph 3 of the order.

b. Paragraph 5: Rather than the mother having the sole decision-making authority in relation to medical issues and appointments, either parent who has the care of the child will have such authority.

c. School: The child shall attend a school located between the residences of the parents. The mother may decide if the child is enrolled in an English or French program. But she will not enroll the child in a school which is farther from the father’s residence than her own residence from the father’s residence.

d. Counselling: Rather than the mother having authority to determine all issues in relation to counselling for the child, each parent may enroll the child in counselling during their parenting time if they deem counselling appropriate. If the other parent agrees, they will make their best efforts to have the child attend the same counselling services during their parenting time.

e. Extra-curricular activities: The child shall be enrolled in extra-curricular activities in Brantford or in the alternative a location which is between the residences of the father and mother.

f. Neither party shall organize or schedule appointments for the child during the other parent’s parenting time without their prior written consent.

g. Rather than the mother having sole-decision making authority, each party shall have the right to make day-to-day decisions for the child while he is in their care.

h. Paragraph 34: Eliminate the requirement for video calls during either party’s parenting time.

i. Paragraph 45: Eliminate the prohibition in relation to dogs, but restrictions to remain in place in relation to cat dander. Regarding dogs, each parent shall make best efforts to reduce the amount of dog dander present in their home. Each parent shall advise the other in writing if a dog is present in their home.

j. Costs.

THE LAW: RULE 1(8)

21. I will briefly summarize the law in relation to the Rule 1(8) motions:

22. When a party breaches an order, two independent enforcement options may be available:

a. A contempt motion, pursuant to Rule 31.

b. Enforcement pursuant to Rule 1(8) which gives the court considerable latitude in responding to non-compliance with court orders.

23. Pursuant to Rule 1(8) of the Family Law Rules the court has wide discretion in dealing with a party’s failure to obey an order. The section states:

Failure to Obey Order

(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order. O. Reg. 322/13, s. 1.

24. Rule 1(8.1) gives the court authority to make any order described in Rule 1(8) when a party fails to follow the rules.

1(8.1) Failure to Follow Rules If a person fails to follow these rules, the court may deal with the failure by making any order described in subrule (8), other than a contempt order under clause (8)(g).

25. The relief set out in Rule 1(8) can be procedural and substantive. The itemized list is inclusive, not exclusive.

26. The broad and purposeful application of Rule 1(8) allows court to deal with a failure to obey by making any order that it considers necessary for a just determination of the matter. Once the court is satisfied that a party is in non-compliance with a court order, the court can fashion a substantive remedy providing it is tied to the breached order such that the remedy will encourage compliance with the breached order. The scope of the court's discretion to fashion a responsive substantive remedy is particularly appropriate where at issue is the wellbeing of children. Bouchard v. Sgovio, 2021 ONCA 709; S-L.T. v. M.L., 2023 ONSC 5551 (SCJ). C. v. M. 2023 ONSC 5778 (SCJ)

27. An order under Rule 1(8) may be made “at any time during a case”, and the power to make such an order is in addition to any other power as the Rules may specify and exists unless the Rules expressly provided otherwise. Villeneuve v. Wilson, 2022 ONSC 2886 (SCJ).

28. In dealing with a motion for relief pursuant to Rule 1(8) the court must be mindful of the primary and secondary purposes of the Rules.

1. Rule 2(2) says the primary objective of the rules is to enable the court to deal with cases justly.

2. Rule 2(3) sets out that dealing with a case justly includes

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

3. Rule 2(4) states the court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

Mullin v. Sherlock, 2018 ONCA 1063

29. The Court, the parties and their counsel are, in essence, partners in promoting the primary objectives of the rules. Ferguson v. Ferguson 2021 ONSC 5180 (SCJ)

30. In Manchanda v. Thethi, 2016 ONSC 3776 (SCJ) the Court held that, “without enforcement of the primary objective, a party can frustrate the civil justice system’s goals of efficiency, affordability, proportionality, and fairness, by making the process slow, expensive, and distressful.”

31. A request for relief under Rule 1(8) entails a three-step analysis: Mullin v. Sherlock, 2018 ONCA 1063; Van v. Palombi 2017 ONSC 2492 (Div Ct); Lamothe v. Ellis 2021 ONSC 4883 (SCJ); Raisfirooz v. Dajmar, 2022 ONSC 5382 (SCJ).

a. The court must first determine if there is a triggering event.

i. A triggering event exists when there has been non-compliance with a court order. Horrocks v. McConville, 2022 ONSC 6885 (SCJ).

ii. There is no requirement that the violated order was made on a motion, and it doesn’t matter who obtained the order.

iii. As long as the court is satisfied that there has been a failure to obey an order “in the case or a related case” Rule 1(8) is triggered. Hughes v. Hughes, 2007 10905 (ON SC), [2007] O. J. No. 1282 (SCJ); C.J. v. E.J. 2021 ONSC 4853 (SCJ)

b. If there has been a triggering event, the court should then determine whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under subrule 1(8).

i. The onus is on the non-complying party to show why it would be appropriate for the Court to exercise its discretion in their favour. Pearce v. Kisoon, 2019 ONSC 4389 (SCJ); Gordon v. Starr, 2007 35527 (ON SC), [2007] O.J. No. 3264 (SCJ).

ii. This discretion should only be exercised in the non-compliant party’s favour in exceptional circumstances. Herman v. Rathbone, 2017 ONSC 4585 (SCJ); Antunes v. Antunes 2022 ONSC 6450 (SCJ).

iii. The court's decision as to whether or not to exercise its discretion in favour of the non-complying party should take into account all relevant history of the litigation and, more specifically, the conduct of the non-complying party. Bullock v. Bullock 2017 CarswellOnt 3802 (SCJ); Pearce v. Kisoon, 2019 ONSC 4389 (SCJ).

c. If the court determines it should not exercise its discretion in favour of the non-complying party, it is then left with the very broad discretion as to the appropriate remedy under Rule 1(8) Oliver v Oliver, 2020 ONSC 2321 (SCJ); C. v. S. 2023 ONSC 2551 (SCJ). Relevant considerations include:

i. The proportionality of the sanction to the wrongdoing;

ii. The similarity of sanctions in like circumstances;

iii. The presence of mitigating factors;

iv. The presence of aggravating factors;

v. Deterrence.

C.J. v. E.J. 2021 ONSC 4853 (SCJ); Ferguson v. Charlton, 2008 ONCJ 1 (OCJ); Teixeira v. Teixeira, 2022 ONSC 6133 (SCJ)

32. As Justice Conlon summarized in C.J. v. E.J. 2021 ONSC 4853 (SCJ), the onus is on the non-complying part to show, on a balance of probabilities that either:

a. Rule 1(8) is not applicable, or

b. That the court should exercise its discretion in favour of the non-compliant party.

THE LAW: MOTIONS TO CHANGE

33. I will briefly summarize the law in relation to the respective motions to change the January 5, 2022 final order.

34. Rule 15 of the Family Law Rules governs the procedure for motions to change and applies to motions to change a final order for parenting and decision-making.

35. Section 17 of the Divorce Act sets out the Court’s authority to change a parenting order.

17(1) Variation order

A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,

(a) a support order or any provision of one, on application by either or both former spouses;

(b) a parenting order or any provision of one, on application by

(i) either or both former spouses, or

(ii) a person, other than a former spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent; or

(c) a contact order or any provision of one, on application by a person to whom the order relates.

17(5) Factors for parenting order or contact order

Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9).

36. Section 16 provides direction to the court regarding factors to consider in making a parenting order. Subsection 16(7) provides that a parenting order "includes ... a variation order in respect of a parenting order", so this section applies to the present variation proceeding.

16(1) Best interests of child

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.

16(2) Primary consideration

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.

16(3) Factors to be considered

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.

16(4) Factors relating to family violence

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.

16(5) Past conduct

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.

16(6) Maximum parenting time

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.

16(7) Parenting order and contact order

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.

37. The Supreme Court of Canada decision in Gordon v. Goertz (1996) 1996 191 (SCC), 19 R.F.L. (4th) 177 S.C.C. sets out a two-stage process for the court to conduct in motions to change parenting orders as follows:

a. First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

b. If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

38. The first step:

a. The previous order is presumed to be correct based upon the circumstances which existed at the time. Gordon v. Goertz (1996) 1996 191 (SCC); Barendregt v. Grebliunas, 2022 SCC 22; M.A.B. v. M.G.C. 2022 ONSC 7207 (SCJ).

b. The onus is on the person seeking to change the existing order to prove on a balance of probabilities that there is a material change that affects or is likely to affect the best interests of the child. There must be a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs. The change cannot be “trivial” or insignificant: it must be material. Kirichenko v. Kirichenko 2021 ONSC 2833 (SCJ); Hickey v. Hickey, 1999 691 (SCC).

c. The change must have arisen since the making of the order or the last variation of the order. N.S. v. A.N.S. 2021 ONSC 5283 (SCJ); K.M. v. J.R. 2022 ONSC 111 (SCJ).

d. A change alone is not enough to justify a variation. The change must materially affect the child, the parents, or both. K.M. v. J.R., 2021 ONSC 111 (SCJ); Clarke v Denyes, 2023 ONSC 3984 (SCJ).

e. It must be a change which was either not foreseen or could not have been reasonably contemplated by the judge who made the previous order. The change must be substantial, continuing and "if known at the time, would likely have resulted in a different order." L.M.L.P. v. L.S., [2011] SCC 64 (SCC); Dedes v. Dedes, 2015 BCCA 194; Oremush v. Hickey, 2021 ONSC 6833 (SCJ); F.K. v. A.K. 2020 ONSC 3726 (SCJ).

f. The threshold determination of a material change in circumstances can be based upon a single change or event; or more commonly a combination of changes as parents and children move on with their lives. K.M. v. J.R. 2022 ONSC 111 (SCJ); M.A.B. v. M.G.C. 2022 ONSC 7207 (SCJ).

g. But trivial, insignificant or short-lived changes will not justify a variation. Hickey v. Hickey, 1999 691 (SCC), 46 R.F.L. (4^th) 1 (SCC); Marinangeli v. Marinangeli, 2003 27673 (ON CA), 2003 CarswellOnt 2691 (ON CA); Thompson v. Drummond, 2018 ONSC 1975 (SCJ).

h. The preliminary threshold test is aimed in part at ensuring that the parties do not resort to litigation whenever any change occurs, however minimal. Gordon; Neger v. Dalfen, 2016 ONCJ 751 (OCJ). 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.

i. The passage of time and aging of a child does not automatically mean that a material change in circumstances has occurred, but it can be a factor -- depending primarily on how much time has passed since parenting arrangements were last determined. Brown v. Lloyd, 2015 ONCA 46; Clarke v Denyes, 2023 ONSC 3984 (SCJ). As a child ages, their needs can change in relation to each of the parents. Bealo v. Badom 2022 ONSC 5372 (SCJ). Particularly for younger children, a change in a child’s age or level of maturity measured over just a few years will rarely constitute a material change, without further evidence that the existing order is no longer adequate. Gray v. Wiegers, 2008 SKCA 7 (Sask CA); Coppin v Arboine 2018 ONSC 7149 (SCJ). Where more time has passed -- and especially dealing with adolescent children whose views may become a more relevant factor – the evolution of a child’s needs and/or a parent’s ability to meet those needs can cumulatively constitute a material change. Amiri v Nazer, 2022 ONSC 3607 (SCJ); Warr v Riettie 2019 ONSC 1868 (SCJ); Stirling v. Blake, 2013 ONSC 5216 (SCJ).

j. A change in a party’s availability to exercise parenting time with a child (for example, a change in employment status or schedule) may constitute a material change in circumstances. Burton v. Brown, 2021 ONCJ 322 (OCJ).

k. Repeated or protracted breaches of a court order can constitute a material change in circumstances. L.W-A v. JC 2017 ONCJ 741 (OCJ); Maloy v. Pantalone, 2021 ONSC 7734 (SCJ).Clarke v Denyes, 2023 ONSC 3984 (SCJ). A party’s extensive non-compliance with an existing court order can amount to a material change in circumstances for the purposes of the variation analysis if the breaches have a harmful effect on the child. Chin Pang v. Chin Pang, 2013 ONSC 2564 (SCJ); Zaidi v. Qizilbash, 2014 ONSC 3652 (SCJ); Merkand v. Merkand, 2006 CarswellOnt 712 (ON CA); V.J.S. v. L.J.G. (2014), O.J. No. 2238 (SCJ); Roloson v. Clyde, 2017 ONSC 3642 (SCJ).

l. The test may also be satisfied if the terms of the existing order or the Reasons for Judgment in support of the order specifically contemplated changes to the order if certain events occurred, and those developments in fact transpired. M.A.B. v. M.G.C. 2022 ONSC 7207 (SCJ). Conversely, if the order was predicated on the expectation that certain things would happen – and those things don’t happen – the failure to fulfill the order’s expectations may also constitute a material change in circumstances.

m. Even if both parents seek to change the existing order – for similar or different reasons – that mutual desire for a new order isn’t enough. Unless the court is able to make an explicit finding that a material change in circumstances has arisen since the previous order was made, the court is without jurisdiction to make a variation order. Persaud v. Garcia-Persaud, 2009 ONCA 782; Kapadia v. Kwok, 2023 ONSC 3700 (SCJ)

n. The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing parenting order.

o. The requirement of a material change in circumstances means that a motion to change cannot be an indirect route of appeal from the original custody and access order. The court must assume the correctness of the first order and consider only the changed facts since the first order was made. Kirichenko v. Kirichenko 2021 ONSC 2833 (SCJ); Docherty v. Beckett (1989), 1989 8869 (ON CA), 21 R.F.L. (3d) 92 (ON CA)

p. At this stage, the court should allow only limited consideration of the evidence predating the order to understand how it was made, in order to determine if a material change in circumstances has been established. Hornan v. Hornan, 2007 CarswellMan (Man. Q.B.); E.M. v. M.Q., 2021 ONCJ 533 (OCJ). However, once material change is shown, the court can engage in a full inquiry, including facts that predate the order. Segal v. Segal (2002) 2002 41960 (ON CA), 26 R.F.L. (5^th) 433 (ON CA).

q. If there is no explicit finding of a material change in circumstances, the inquiry ends. The court would be without jurisdiction to vary the order. Litman v. Sherman, 2008 ONCA 485.

r. If there is a material change, the court must move to the second stage and consider the best interests of the child and whether to vary the original order.

39. The second step:

a. Once a material change in circumstances has been established, the court then embarks on a fresh inquiry into the best interests of the child. P. v. G.-P., 2009 ONCA 782. The analysis becomes “prospective in nature”. Barendregt v Grebliunas, 2022 SCC 22; Khairzad v. Erroussa 2023 ONSC 6741 (SCJ).

b. The court must consider the non-exhaustive list of best interests factors set out in section 16(3).

c. In this fresh inquiry, all parties bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of maintaining the existing timesharing arrangements. The court should consider the matter afresh without defaulting to the existing arrangement. Bubis v. Jones, 2000 22571 (SCJ); Persaud v. Garcia-Persaud, 2009 ONCA 782; Deslauriers v. Russell, 2016 ONSC 5285 (SCJ); Roloson v. Clyde, 2017 ONSC 3642 (SCJ); E.M. v. M.Q., 2021 ONCJ 533 (OCJ)

d. At this stage the court should consider all the evidence -- which may include evidence predating the previous order – to conduct a comprehensive analysis of the best interests of the child. Segal v. Segal, (2002) 2002 41960 (ON CA); E.M. v. M.Q., 2021 ONCJ 533 (OCJ).

e. At the second stage of the analysis, the best interests test is the only test to be applied. E.M. v. M.Q., 2021 ONCJ 533 (OCJ); Young v. Young 1993 34 (SCC).

f. 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, 2003 3320 (ON CA); Proulx v. Proulx, 2022 ONCA 428

g. Similarly, the court’s disapproval or sanctioning of one parent’s inappropriate behaviour should not result in an order which creates entitlements by the other parent which are not in the best interests of the child. Ruffudeen-Coutts v. Coutts, 2012 ONCA 263.

h. 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.

i. On a motion to change, the court has the option of restricting changing the existing order to address a specific issue, while maintaining its integrity. Elaziz v. Wahba, [2017] ONCA 58; White v. White, 2022 ONCJ 2 (OCJ).

j. Courts should be cautious about changing a long-term parenting arrangement unless compelling circumstances dictate otherwise. Ceho v. Ceho, 2015 ONSC 5285 (SCJ); Batsinda v. Batsinda, 2013 ONSC 7869 (SCJ); Green v. Cairns, 2004 9301 (SCJ); K.M. v. R.J., 2022 ONSC 111 (SCJ); Alves v. Galloway, 2023 ONSC 7209 (SCJ).

40. As this court summarized in K.M. v. J.R., 2022 ONSC 111 (the judgment which resulted in the order now under consideration) conflict between parties does not automatically justify a change to a parenting order.

a. Where the conflict existed as of the separation; where it continued throughout litigation in the first instance; and where it existed and was considered at the time the order was made – a continuation of that conflict does not constitute a material change in circumstances. Goldman v Kudelya 2017 ONCA 300; P.D. v. D.C. 2021 ONSC 2146 (SCJ).

b. Where conflict between the parties was and continues to be “regrettably, the norm”, that is no reason to re-open a parenting order which already took the conflict into account. Litman v. Sherman, 2008 ONCA 485.

c. However, there may be cases in which the level of parental conflict hasn’t really changed, but a child’s reaction to the ongoing or cumulative conflict has worsened since the last order was made. In a child-focussed analysis, if the child’s emotional health has been negatively impacted, that worsening reaction to ongoing conflict may constitute a material change in circumstances. D. (G.T.G.) v. D. (M.) 2016 ONSC 4463 (SCJ); De Melo v. Gooding, 2010 ONSC 2271, 84 R.F.L. (6th) 369 (SCJ); Wreggitt v. Belanger, 2005 14007 (ON SC), 17 R.F.L. (6th) 347 (ON CA).

d. As well, dwelling on the potentially fine distinction between “continuing conflict” and “escalating conflict” may distract from the court’s ultimate obligation to determine whether it is in the best interests of the child to leave the current arrangements in place. Kerr v. Easson 2013 ONSC 2486 (SCJ); De Matos v. De Matos 2016 ONSC 5138 (SCJ).

e. Similarly, some cases have held that if an order is not working and needs to be clarified or fine-tuned to safeguard the best interests of the child, the failure of the order to provide the anticipated benefit for the child may constitute a material change justifying a variation. Zolaturiuk v. Johansen, 2009 15907 (SCJ); Burton v. Brown, 2021 ONCJ 322 (OCJ); Saroli v. Grette 2022 ONSC 148 (SCJ).

f. If the existing order included provisions intended to address or reduce parental conflict, on a motion to change the court must consider whether those corrective terms were actually implemented. If they were attempted without success, that failure of the order to achieve the intended outcome would likely constitute a material change in circumstances. But if the parents simply failed to utilize provisions in the order which were intended to reduce conflict, that non-compliance with the order would not likely establish a material change. J. (J.) v. C. (C.) 2017 ONCA 357; Goldman v Kudelya 2017 ONCA 300. Conversely, if the existing order simply included provisions intended to mitigate the impact of ongoing conflict – with no real expectation that the conflict would reduce – then the continuation of foreseeable parental conflict would not constitute a material change in circumstances.

g. If one parent does not facilitate or undermines the child’s relationship with the other parent – contrary to the expectations when the order was pronounced – that may also constitute a material change in circumstances. Leggatt v Leggatt, 2015 ONSC 4502 (SCJ); H. (P.) v. J. (T.) 2017 ONCJ 166 (OCJ).

h. Repeated or protracted breaches of a final order may also constitute a material change in circumstances justifying a change to a final order. But those breaches must be material and affect the child’s best interests. Armstrong v. Vanneste 2017 ONSC 5835 (SCJ); Laurin v. Martin, 2005 CarswellOnt 5084 (ON CA).

41. As stated, section 16(1) of the Divorce Act provides that the court shall take into consideration only the best interests of a child when making a parenting order or a contact order.

a. The ‘best interests’ test is a flexible and fact-driven exercise, tailored to the needs and circumstances of the child’s whose well-being is under consideration. De Souza v. De Souza, 2023 ONSC 2457 (SCJ).

b. Case by case consideration of the unique circumstances of each child is the hallmark of the process. Van de Perre v. Edwards, 2001 SCC 60; O’Connor v. Duguay, 2023 ONSC 2374 (SCJ).

c. The analysis must remain centered on the rights of the child, from a child-centred perspective. The ‘rights’ of a parent are not a criterion. Young v. Young, 1993 34 (SCC).

d. The focus is on the child, not the parent. S.S.L. v. M.A.B., 2022 ONSC 6326 (SCJ).

42. Section 16(2) says when considering best interest factors, primary consideration is to be given to the child’s physical, emotional and psychological safety, security and well-being. Pierre v. Pierre, 2021 ONSC 5650 (SCJ).

43. It is also in a child’s best interests when making a parenting order that his or her caregiver be physically and emotionally safe. Q.M.S.Q. v. S.Q. 2021 ONCJ 334 (OCJ); N.S. v. A.N.S. 2021 ONSC 5283 (SCJ)

44. Section 16(3) sets out a list of factors for the court to consider in considering the circumstances of a child and determining best interests.

45. The court is required to undertake a broad analysis of each child’s specific situation.

a. The list of best interests factors in the Act is not exhaustive. White v. Kozun, 2021 ONSC 41 (SCJ); Pereira v. Ramos, 2021 ONSC 1736 (SCJ); Seyyad v. Pathan, 2022 ONCJ 501 (OCJ); J.T. v. E.J., 2022 ONSC 4596 (SCJ).

b. None of the listed factors are given priority, except the primary consideration in S.16(2) is overarching. O’Connor v. Duguay, 2023 ONSC 2374 (SCJ).

c. No single criterion is determinative. The weight to be given to each factor depends on the circumstances of the particular child. Dayboll v. Binag, 2022 ONSC 6510 (SCJ).

d. The listed factors are not a checklist to be tabulated with the highest score winning. Rather, the court must take a holistic look at the child, his or her needs and the people in the child’s life. Phillips v. Phillips, 2021 ONSC 2480. W.H.C. v. W.C.M.C. 2021 ONCJ 308 (OCJ); Harry v. Moore 2021 ONCJ 341 (OCJ); McIntosh v Baker, 2022 ONSC 4235 (SCJ); Brownson v. Brownson, 2022 ONSC 5882 (SCJ).

e. An assessment of the best interests of the child must take into account all of the relevant circumstances with respect to the needs of the child and the ability of each parent to meet those needs. Mokhov v. Ratayeva, 2021 ONSC 5454 (SCJ).

f. The child’s best interests are not merely “paramount” – they are the only consideration in this analysis. Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 at para. 28; Mattina v. Mattina, 2018 ONCA 641; E.M. v. C.V. 2022 ONSC 7037 (SCJ).

g. The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27.(SCC). Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child. Young v. Young 1993 34 (SCC); E.M.B. v. M.F.B. 2021 ONSC 4264 (SCJ).

h. The court’s unrelenting focus on the best interests of each particular child means that there can be no presumption in favour of any one type of parenting order. All things being equal, each child deserves to have a meaningful and consistent relationship with both parents. E.M.B. v. M.F.B. 2021 ONSC 4264 (SCJ).

46. The Divorce Act imposes several important duties on parents, which are aimed at ensuring that their parenting remains focussed on the child's best interests, that children are safeguarded against unnecessary conflict, and that parenting issues are addressed in an orderly manner, with all relevant information being provided to the court. Section 7.1 requires them to keep the best interests of the child at the forefront of their minds at all times. M.A.B. v. M.G.C. 2022 ONSC 7207 (SCJ).

47. In determining the best interests of a child, section 16(3)(j) mandates that the court must specifically consider whether there has been any family violence -- and the impact of that violence on the child; and on the ability and willingness of any parties to care for and meet the needs of the child.

a. Section 2(1) sets out an expansive definition of what constitutes family violence.

b. Section 16(4) sets out an additional list of best interests factors which the court must consider related to family violence.

48. These amendments highlight the importance of family violence in assessing the best interests of a child, and to address the reality that family violence is often hidden or unreported despite its insidious nature. V.M.W. v. J.Mc-M., 2021 ONCJ 441 (OCJ).

49. As Justice Chappel noted in S.V.G. v. V.G., 2023 ONSC 3206 (SCJ), children can be victimized by family violence in many ways:

a. The child may be the direct victim of family violence if the abusive conduct is inflicted specifically towards them.

b. The child may also be victimized by direct exposure to family violence towards another family member, if they observe the violence or are close by when it occurs and are able to see or hear what is happening.

c. The child may also be indirectly exposed to and victimized by family violence towards other family members in many ways. For instance, they may experience the aftermath of the violence. This can include observing the family member’s physical injuries or emotional distress following the violence, hearing about the violence after it has occurred, seeing changes in the victim’s behaviour due to the violence, and becoming embroiled in a police or child protection investigation relating to the violence. Where the directly victimized family member is a parent, the child can also suffer indirect consequences of the violence if the parent’s physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact their ability to meet the child’s physical and emotional needs.

50. Family violence is an important consideration, not only because of its impact on the child, but also because the resulting adult fear and trauma may undermine the viability of shared decision-making. S.S.L. v. M.A.B., 2022 ONSC 6326 (SCJ); C.S. v. K.M., 2023 ONCJ 106 (OCJ)

51. In Barendregt v Grebliunas, 2022 SCC 22, the Supreme Court of Canada stated that family violence is a significant factor impacting the best interests of the child test. The Court recognized that harm to children can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath or hearing about it.

52. With its expanded definition, family violence can take many forms.

a. Family violence can be insidious, and frequently involves coercive and controlling behaviors which can create an imbalance of power in a relationship. Abaza v. Adam, 2023 ONSC 1776 (SCJ).

b. Violence need not be physical. Emotional and psychological abuse can have a devastating impact on a child. B. v. W. 2022 ONSC 934 (SCJ).

c. Denigration of the other parent in front of the children has been found to fit within the definition of family violence: Ammar v. Smith, 2021 ONSC 3204 (SCJ); McIntosh v Baker, 2022 ONSC 4235 (SCJ); N.M. v. S.M., 2022 ONCJ 482 (OCJ); F.S. v. M.B.T. 2023 ONCJ 102 (OCJ); T.D.S. v. J.M., 2023 ONCJ 407 (OCJ).

d. Unwarranted calls to authorities, being the police and children’s aid society, can be psychological abuse. K.M. v. J.R., 2022 ONSC 111 (SCJ).

e. Threats of suicide can be domestic violence. J.D.M. v. S.J.C.M, 2021 NBQB 159.

f. A pattern of repeated infidelity coupled with lying, coercion, emotional manipulation and harassment around the infidelities" can, in some cases, qualify as "family violence". McBennett v. Danis (2021), 57 R.F.L. (8th) 1 (SCJ).

g. Surreptitious recordings, insults, unwarranted criticism about parenting and demanding to know whereabouts can constitute psychological abuse.

h. Financial abuse and control. N.M. v. S.M., 2022 ONCJ 482 (OCJ).

i. A parent who engages in alienation is engaging in emotional abuse towards the child. It is a form of family violence. S. v. A., 2021 ONSC 5976 (SCJ); Epshtein v. Verzberger-Epshtein, 2021 ONSC 7694 (SCJ). W.A.C. v. C.V.F., 2022 ONSC 2539 (SCJ).

53. In Barendregt v. Grebliunas 2022 SCC 22 the Supreme Court of Canada addressed the relevance of family violence in parenting determinations and stated:

a. Courts have increasingly recognized that any family violence or abuse may affect a child’s welfare and should be considered when determining a parenting order.

b. In relocation cases, courts have been significantly more likely to allow relocation applications where there has been a finding of abuse.

c. The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives. Being a perpetrator of domestic violence is relevant to “parenting ability”.

d. Abusive dynamics often do not end with separation. In fact the opposite is often true.

e. Harm to children can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it.

f. Domestic violence allegations are notoriously difficult to prove. Family violence often takes place behind closed doors and may lack corroborating evidence. Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support.

g. The prospect of repeated or protracted may deter abuse survivors from coming forward. The evidence shows that most family violence goes unreported.

h. The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis: s. 16(3)(j) and (4). The Divorce Act broadly defines family violence in s. 2(1) to include any violent or threatening conduct, ranging from physical abuse to psychological and financial abuse. Courts must consider family violence and its impact on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child.

i. Because family violence may be a reason for the relocation and given the grave implications that any form of family violence poses for the positive development of children, this is an important factor in relocation cases.

MOTION MATERIALS

54. The hearing of the motion proceeded by Zoom (as did the 2021 trial).

a. The evidence in chief was presented by affidavit, and both parties were then cross-examined.

b. At trial there were multiple witnesses. But on this motion, only the parties presented evidence.

55. The written materials which I received and reviewed include the following:

c. February 22, 2023 Mother’s Notice of Motion

d. February 22, 2023 Mother’s Affidavit

e. March 3, 2023 Father’s Notice of Motion

f. March 3, 2023 Father’s Affidavit

g. March 6, 2023 Mother’s Affidavit

h. April 21, 2023 Temporary Minutes of Settlement

i. June 1, 2023 Mother’s Notice of Motion

j. June 1, 2023 Mother’s Affidavit

k. June 6, 2023 Father’s Affidavit

l. August 30, 2023 Mother’s Affidavit #1

m. August 30, 2023 Mother’s Affidavit #2

n. Sept 29, 2023 Father’s Affidavit

o. October 19, 2023 Mother’s Affidavit

p. October 30, 2023 Mother’s Factum & Authorities

q. October 31, 2023 Father’s Factum #1

r. October 31, 2023 Father’s Brief of Authorities

s. December 12, 2023 Mother’s Motion to Change

t. December 12, 2023 Mother’s Affidavit

u. December 12, 2023 Mother’s 35.1 Affidavit

v. December 18, 2023 Mother’s Amended Notice of Motion

w. January 12, 2024 Father’s Response to Motion to Change

x. January 12, 2024 Father’s Affidavit

y. January 12, 2024 Father’s 35.1 Affidavit

z. January 12, 2024 Father’s 35.1A Affidavit

aa. January 22, 2024 Mother’s Affidavit

bb. January 31, 2024 Mother’s Factum

cc. January 31, 2024 Mother’s Brief of Authorities

dd. January 31, 2024 Father’s Factum #2

ee. February 15, 2024 Mother’s Motion Confirmation

ff. February 15, 2024 Father’s Motion Confirmation

gg. Proposed orders filed by both parties

MOTHER’S EVIDENCE: OVERVIEW

56. The mother’s narrative includes the following:

a. The parties and the court put a lot of work into the 22-day trial in 2021 and the resulting very detailed final order dated January 5, 2022. The order created a blueprint for successful parenting of Carson.

b. Since then, the father has deliberately and repeatedly attempted to subvert the order, and the intended protections for Carson.

c. The final order does not grant the father decision-making authority, even though that’s what he requested in 2021 (and that’s what he again appears to be requesting).

d. The January 5, 2022 final order ended up being similar to the August 16, 2019 final order which it varied, except for some changes with respect to parenting-time and exchanges. The 2022 order clarified and strengthened the sole decision-making authority which the mother already had pursuant to the 2019 final order which the father had consented to at a time when he had counsel.

e. Even though sole decision-making authority was granted to the mother, the father’s parenting-time was increased slightly, and is now equal. Equal parenting time requires cooperative, respectful, and productive communication between the parents – and between each parent and the child.

f. The father has overwhelmingly demonstrated that he is unwilling or unable to follow the final order. This has resulted in serious problems negatively impacting on Carson, including inefficient communication, medical care for the child, school attendance, other parenting issues – and ongoing parental alienation by the father.

g. The father uses Carson to try to “get at” the mother through abuse and manipulation. Although this is upsetting for the mother, the real victim of this constant negativism by the father is Carson.

h. The father keeps portraying the final order as a co-parenting order with joint decision-making. He refuses to acknowledge that the mother has sole-decision making authority. He does what he wants, imposes his own decisions, and contradicts the mother’s decisions. He claims he has authority to make all sorts of important decisions because he characterizes them as “day-to-day” parenting. He refuses to acknowledge that “day-to-day” decisions are things like meals and bedtimes, rather than major decisions relating to the child’s health and education. He seeks out opportunities to re-claim decision-making authority to assert his power, without recognizing that many of his decisions negatively affect the child.

i. His interference and unilateral decision-making has jeopardized the child’s health (through a lack of co-ordination of medical care), and he has allowed Carson to miss school for reasons not supported in the final order or by the mother.

j. Co-parenting in any form simply cannot work because of the father’s controlling and domineering behaviour, and his inability to communicate civilly or in a child-focussed manner.

k. For co-parenting to work, both parties must also be equally and mutually committed to the best interests of the child. The father is still unaware of Carson’s developmental needs and age-appropriate activities. For example, he allowed Carson to play violent video games and watch R-rated movies and video games, when he was three-years-old. He still allows the young child to watch inappropriate media, despite the mother’s repeated objections. As well, the father does not acknowledge or promote Carson’s need for social interaction with other children during recreational activities and at school.

l. The father has a very aggressive personality. He seems to enjoy the “drama” that comes from conflict. He has never addressed this personality trait because he refuses to acknowledge that it is a problem. He derives ongoing satisfaction from deliberately hurting and tormenting the mother. He has no understanding that his actions and attitude are also hurting the child. He has no interest in changing, and he appears incapable of changing.

m. The father seeks out opportunities to create needless issues. Even something as simple as signing a passport application for a child requires months of litigation to accomplish. The father uses court as his platform to continue the abuse and control.

n. And the father constantly seeks to undermine the mother’s relationship with Carson. He ignores the court-ordered requirement for video calls, and unilaterally decides if and when Carson will get to speak with the mother, and for how long.

o. The mother’s motion should be unnecessary because she already has sole-decision making authority. But the father keeps either ignoring the final order or looking for loopholes. The father still does what he wants, and won’t let anyone – even the court -- tell him what to do. So the mother has no choice but to seek changes and refinements to the order, simply to achieve the physical and emotional safety and stability for the child which the 2022 order intended.

p. The mother seeks changes which will protect Carson from the father’s misguided and destructive interference with major aspects of the child’s life including his health; medical care; education; connection to his family and community; his personal interests; his cultural and religious values and practices. The proposed changes are also meant to remove the child from exposure to conflict, or disparaging conversations about the mother.

q. The father is abusing the 50 percent of parenting time he has been granted. If he won’t or can’t change how he behaves, the last resort is to reduce the father’s time with the child – simply to give him fewer opportunities to expose the child to harmful and negative behaviour. If the father’s destructive behaviour cannot be controlled qualitatively, there may be no alternative but to control it quantitatively.

r. Leaving the equal-time arrangement in place and simply reminding the father – again – that the mother has sole decision-making authority won’t solve anything. He will continue to use his equal presence in the child’s life to subvert the mother’s role, and to continue his “free-for-all” approach to parenting.

s. Parenting Carson through litigation has to stop. The affidavits simply describe historical problems. By the time the parties get to court, new problems arise. New problems will always arise unless the court order is dramatically changed, to more effectively prevent opportunities for new problems.

t. Carson needs to be free to live a safe and happy childhood. A definitive and strong court order is required to restore stability in the child’s life, and prevent further upheaval and mayhem.

u. The mother opposes the father’s cross-motion, which she says demonstrates that the father is more interested in hurting the mother than helping the child. She says the father’s materials focus entirely on his disdain for the mother, and he shows very little insight – or interest – in Carson’s well-being. His proposal for less-structured decision-making would be a throw-back to the chaos the January 2022 final order attempted to correct.

v. She notes that her affidavit evidence is supported by numerous (and often self-explanatory) documents, whereas the father has provided very little documentation to corroborate his allegations.

FATHER’S EVIDENCE: OVERVIEW

57. The father’s narrative includes the following:

a. The mother is intent on reducing the father to an “alternate weekend” parent. That’s why she made numerous allegations against the father which were rejected at the lengthy trial. And that’s why she continues to make numerous allegations which are fabricated or greatly exaggerated.

b. Both before and since the last trial, the mother has repeatedly called CAS and the police complaining of inappropriate behaviour and parenting by the father. On each occasion those community agencies have investigated and concluded that the mother’s complaint was unfounded. And yet the mother keeps trying to get the father in trouble, to create evidence for court purposes.

c. The mother is abusing the power granted to her in the existing order to strategically create “evidence” to reduce the father’s role in Carson’s life.

d. She deliberately complicates parenting issues and engages in provocative behaviour in a passive way, to portray a false impression that she is being completely reasonable and that the father is being completely unreasonable. The reality is that both parties need to work harder to improve communication problems.

e. The father has made good faith efforts to participate in alternative dispute resolution and avoid court. The parties participated in parenting coordination through Peaceful Waters. The father agreed to pay for the entire cost of the process. He found parenting co-ordination helpful and felt progress was being made, especially in relation to communication issues. However, the mother did not agree to continue with parenting co-ordination, and she has caused the process to be abandoned. The father remains open to using this form of alternate dispute resolution rather than fighting in court.

f. The father’s goal is to reduce opportunities for conflict between the parents. The parties require distance and autonomy during their respective parenting times, to reduce conflict.

g. He acknowledges the mother should retain authority over major aspects of decision making. However, it is in the best interests of Carson that the child has two actively involved parents. To facilitate and promote this, the father seeks an order which aligns with a “parallel parenting” regime – where each parent will have the opportunity to actively participate in the child’s life.

h. The father’s right to participate in Carson’s life and decisions needs to be specified and entrenched. Otherwise the mother will continue her efforts to distance the father from Carson.

i. Most importantly, there is no basis for reducing the father’s parenting time. Such a change to the status quo would be emotionally devastating. And if the mother strengthened her presence in the child’s life, she would use primary residence as an opportunity to keep extinguishing the father from Carson’s life.

CARSON’S MEDICAL & HEALTH ISSUES

58. I’ll start with Carson’s medical and health issues, firstly because they command obvious prominence in any best interests analysis; and secondly because this is one of the limited areas where I find that changed circumstances require a changed order, to safeguard Carson’s physical and emotional well-being.

59. The rationale and objectives of the relevant sections of the January 5, 2022 were as follows:

a. The health of all young children obviously needs to be safeguarded. But Carson’s situation requires additional parental structure because he has ongoing problems with asthma and allergies.

b. At the 2021 trial I found that the father had not respected the decision-making authority which the mother already had pursuant to the 2019 final order. I found that Carson’s specific situation required a decision-making regime in which the broad category of medical and health related issues needed to be dealt with efficiently, consistently, knowledgeably, and unimpeded by any distraction or contradiction caused by the inevitable continuing acrimony between the parents.

c. Paragraph 2 specifies the mother has sole decision-making authority on all issues, including medical and health.

d. Paragraph 3 requires the mother to consult with the father, but the mother’s decision is final.

e. Paragraph 4 grants the mother sole authority to select and instruct all third-party service providers. The father is to be kept informed, but he cannot initiate new service providers or change existing service providers without the mother’s prior approval.

f. Paragraph 5 allows the mother to schedule the child’s appointments during her parenting times.

g. Paragraph 6 requires the mother to notify the father of appointments.

h. Paragraph 7 states that if one parent takes the child to an appointment, the other is be permitted to attend electronically, by video or audio.

i. Paragraph 10 states the parties have an equal right to communicate with third party service providers, but the father is not permitted to cancel or change any arrangement the mother has made for the child.

j. Paragraphs 21 to 23 set out the requirement that both parties be fully involved in relation to medical emergencies and sharing of ongoing medical information.

k. This unusually rigid and asymmetrical regime was required because the parents were in constant disagreement about medical services and treatment; they were acting independently with respect to appointments and medications; the parents had no ability to communicate even on important issues; Carson’s well-being was at risk because of the ongoing power-struggle; somebody had to have final decision-making authority; and the mother’s parental judgment on these issues was significantly better than the father’s. So the intention was that the father would continue to be completely involved, but he would no longer be able to interfere with or contradict the mother’s health-related decisions.

l. But as it happens, even those terms weren’t enough to keep the child safe from risk and petty bickering.

60. On all issues – but particularly health related matters – the fundamental problem here is the parties’ inability to communicate and the lack of trust and respect.

a. That’s why paragraphs 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24 all deal with communication.

b. The common sense intended theme of these paragraphs: Only communicate in writing (through AppClose); only about the child; keep it short; and be civil.

c. But again, even those fairly detailed terms weren’t enough to ensure mature communication.

61. There’s lots of blame to go around on this file, but on the communication issue the father is the main (but not sole) offender.

a. Prior to the January 5, 2022 order, the father’s texts to the mother were horribly abusive and intimidating.

b. Since then, the frequency and severity of his inappropriate texts have been somewhat reduced.

c. But the mother provided clear evidence that the father has continued to send her numerous offensive texts which are insulting, sarcastic, abusive, inflammatory, not child-related, and unresponsive to her legitimate comments or inquiries. He has completely ignored the structure and restrictions relating to communication.

d. Following the final order the parties unsuccessfully attempted to address communication issues through a Parenting Coordinator. The mother says she took the Parenting Coordinator’s advice with respect to reducing conflict by changing the language she uses in texts and messages. When the mother cross-examined the fther about what methods he has implemented to improve communication, he responded “I haven’t told you to ‘fuck off’ since we started this.” He admitted he gets provoked because he finds the mother irritating. He said he doubted things would ever be ok between the two of them, but he felt he was controlling his aggression. “I’m working on it.”

e. (Even the Parenting Coordinator appears to agree, they shouldn’t come back.)

f. In fairness to the father, while his texts are often over-the-top mean-spirited, some of the mother’s texts are provocative in their own way. The mother is always civil and child-focused. But with some regularity, her messaging under the heading of “decision-making authority” betrays an overriding sense of moral and intellectual superiority and condescension. Sometimes her texts concerning the child are necessary. But not always.

62. The father is probably correct in doubting the parties will ever be able to get along or communicate. And on some issues that may be a reality that the parties will just have to cope with. There are some things – and some people – judges can’t change.

63. But there are a couple of key areas where this inability to communicate and cooperate is having a significant negative impact on this six-year-old child. And that can’t be allowed to continue.

64. With Carson being in the father’s care 50% of the time, a pattern has emerged where two related problems seem to be re-occurring periodically throughout the year):

a. During the father’s alternate parenting weeks, the child’s routine illnesses are not being addressed effectively, consistently, or in a manner which respects the mother’s ultimate decision-making authority. To put things in perspective, this is not a constant problem. But all kids get sick from time-to-time. And when Carson gets sick, rather than rise to the occasion, the parents descend into hostile and counter-productive bickering.

b. Also during the father’s weeks, when Carson experiences even a minor childhood illness, the boy ends up missing an inordinate and unjustifiable amount of school. For the most part, the father insists Carson was too sick to attend. But the mother has decision-making authority over medical and education issues. And the mother presented evidence strongly supporting her position that the father has been overstating (or misunderstanding) the child’s illnesses, to justify keeping him home from school.

65. Carson’s school-attendance was already a problem identified at the 2021 trial.

a. Paragraph 11 of the final order specifically requires both parents to ensure that the child consistently attends school and/or daycare, and that they notify one another of related developments.

b. The mother says during her weeks she ensures that Carson attends school consistently, whereas during his weeks the father allows Carson to miss a great deal of school, sometimes a full week at a time.

c. She says her son’s absences are approaching truancy level. Most recently, of the 68 school days in Carson’s first term of grade one, the child missed 24% of classes during the father’s parenting time.

d. Carson is now learning French in grade one, in an all-French school. The mother speaks French. The father doesn’t.

e. The mother says continuous school attendance is vitally important because the lessons build on one another. She says Carson is already behind, and he feels discouraged and embarrassed about this.

f. Under cross-examination the mother acknowledged that she had no school records or report cards which confirmed that the current parenting arrangement has negatively impacted Carson’s school performance.

g. The father says Carson only misses school for valid reasons, mainly health-related.

h. He says he’s in regular touch with Carson’s teachers, and the child is progressing well.

66. Both parties filed lengthy affidavits with numerous exhibits and multiple examples of their respective complaints on all topics. On most topics I will briefly summarize that evidence.

67. But even though they don’t arise very often, Carson’s periodic “routine childhood illnesses” invariably escalate the conflict and inefficiency between these parties. I’ll set out some examples of why periodic illnesses and their impact on school attendance will require a change to the existing order.

MEDICAL ISSUE JANUARY 20, 2023

68. The parties gave evidence about a medical issue which arose on Friday January 20, 2023 – a transition day with Carson going from the mother to the father for the upcoming week.

a. The father says when he picked Carson up from school, the boy was sick. He says the child was so sick that the mother should have noticed his medical condition, at least the day before. The mother denied that she overlooked any medical symptoms and insisted Carson wasn’t sick on the previous day.

b. The father took the child to an urgent care clinic and texted the mother that Carson had a sore throat.

c. The mother texted that the father should have notified the mother prior to taking the child to the clinic. She texted a request that the father have the doctor call her while examining the child. The father texted that she should call in.

d. During cross-examination the mother initially testified that by the time she joined in by telephone the session was over and the doctor simply confirmed that the child had been seen.

e. After the mother was presented with a medical record which included the notation “mother phoned in during the consult”, the mother amended her position to admit that she was in fact present by phone for at least some of the discussion. After initially testifying that she had heard nothing of the doctor’s examination, the mother became somewhat resistant and combative during cross-examination, vaguely admitting that she had received some information.

f. The doctor had noted that the child had experienced a sore throat for three days. The father said this showed the child had been sick during the last portion of the mother’s week with the child. The mother denied this.

g. Later in the afternoon the mother texted: “Did the doctor do the swab? Please provide written documentation.”

h. The father responded by text: “Obviously Carson was swabbed this is standard testing for Strep. You can call the doctor for any papers required. I am not your secretary.”

a. During her cross-examination of the father, the mother suggested the “not your secretary” remark was condescending. The father denied this. He expressed frustration that the mother constantly assumes a tone of superiority and incessantly issues instructions and demands. He said the tension which the mother creates by her attitude is worsened by the fact that the mother’s instructions can be inconsistent. Sometimes she insists he do things. Sometimes she forbids him from doing those same things. During her own cross-examination, the mother rejected the suggestion that she creates confusion by sometimes asking the father to book medical appointments, and sometimes forbidding him from making appointments.

b. Later in that week, on January 26, 2023 at 9:38 a.m. the mother texted the father that she made an appointment for him to take Carson to his pediatrician’s office at 1:45 p.m. She asked that he provide “the medical documentation that results.”

c. At 9:52 a.m. the father texted: “...I will not be pushed to take Carson to a doctor while you have provided me with a few hours notice. I will not be driving to Hamilton to see a doctor. I can however take him to see a doctor in Brantford after I have fulfilled my obligations for the day. I’m not going to be bullied into your spontaneous scheduling I have prior obligations.”

d. At 10:03 a.m. the father followed up with: ”Why would you not consult with me prior to booking an appointment? There is no Emergency here, and Carson is receiving his daily medications and getting better.”

e. The mother testified that in the end the father did not take the child to a doctor in Brantford on January 26^th.

i. I accept the mother’s evidence that the child’s illness on that occasion did not justify the father keeping Carson out of school for the next five days. She said this was an example that whenever Carson is sick with even a minor issue, the father needlessly keeps him home for many days.

MEDICAL ISSUE JUNE 15, 2023

69. The parties gave extensive evidence about a similar medical dispute starting June 15, 2023.

a. At 6:50 a.m. the father messaged the mother advising Carson wouldn’t be attending school because he was not well. The father’s message asked the mother to make an appointment with Carson’s pediatrician for 1:00 p.m. that day.

b. The mother replied that the father should make the appointment and he should call soon if he wanted a same-day appointment.

c. The father didn’t get back to her so at 11:40 a.m. she asked for details about the appointment so that the mother could be available to participate by phone.

d. The father said he tried unsuccessfully to make an appointment. The mother said he provided a log showing that he called the doctor’s office at 12:30 p.m. and the call lasted 11 seconds (she said the preliminary recording on the doctor’s line is two minutes long). This was the office’s lunch hour and the father didn’t leave a voicemail.

e. The mother said if the father had called earlier in the day he could have made an appointment with Carson’s Hamilton pediatrician. She knew this because by coincidence that day her husband had made a same-day appointment for her younger son Gerald.

f. The mother said the father ended up taking the child to a physician in Brantford. She said it was obvious that this was his intention all along, as he didn’t even try to contact the Hamilton pediatrician’s office until it was too late to get the desired appointment.

g. The mother resisted the suggestion during cross-examination that this was another example that sometimes the mother insists that she make medical appointments, and sometimes she insists the father make the appointments. She denied that her inconsistency was promoting confusion and conflict.

h. The doctor’s observations on that day included “happy child”, “not distressed” and most indicators were “normal”. A throat swab was ordered, with a recommendation of follow-up with family physician as soon as possible.

i. The mother established that the medical evidence did not support the father’s decision to keep Carson out of school for five days for what she described as a runny nose.

MEDICAL ISSUE NOVEMBER 28, 2023

70. I received evidence about medical issues on November 28, 2023.

a. At 7:19 a.m. the father texted the mother that Carson was complaining of a sore throat and crying when he coughs. He asked her to make a doctor’s appointment today.

b. The mother advised the father that it was his responsibility to book appointments. She asked for details so she could participate in the appointment by video.

c. The father immediately texted back that it wasn’t his responsibility. He then texted he would take care of it.

d. The mother then texted: “So you will not be taking him to a doctor even though you are saying he is crying from pain?” She directed him to take the child to a doctor.

e. The father responded: “I am taking him to a doctor no where did I say I wasn’t. If you are not interested in making the appointment I will take care of it.”

f. The father later texted that he couldn’t get an appointment with the child’s pediatrician, so he was arranging for Carson to be taken to a walk-in clinic in Brantford. The mother had previously sent a letter to that particular clinic advising them not to be involved, because on an earlier occasion she experienced a one-and-a-half month delay in getting an important medical report from them (a report which contradicted the information originally provided by the father). So she insisted that Carson be taken to a different walk-in clinic in Brantford.

g. The father took Carson to a different clinic and texted the mother: “The physician would not allow cell phone use while examining Carson. He has swabbed his throat and wants Carson to see a pediatrician. He is going to call and see if Carson can be seen today.”

h. The mother texted back that the father should have told her that the doctor wouldn’t allow her to participate by cell phone. She said if the doctor wouldn’t comply with her court-ordered right to participate by cell phone, the father should have left and gone elsewhere.

i. The father said he didn’t know the doctor’s position until he came in and started the examination. He suggested the mother drive to the clinic to be present. The mother texted the court order didn’t allow her to be present.

j. The next morning the father texted an update, describing the child’s ongoing symptoms and the medication he was giving. He said the child “has a mild fever 100” and said Carson would not be attending school. The mother responded “100 is not a fever” and reminded the father to make sure Carson was getting Ventolin regularly throughout the day.

k. The mother says Carson ended up missing three days of school in November 2023 without justification. She says the doctor who examined Carson did not observe the symptoms the father described. She says Carson has puffers at school, so his symptoms could have been managed at school. By keeping Carson home from school the father was actually aggravating Carson’s health because Carson is allergic to the dog in the father’s home (as more fully discussed below).

71. Overall, the text exchanges were testy and less respectful of one another’s parental judgment. But dealing with a sick child is always a stressful and evolving situation. In the mother’s evidence she conveyed an overall sense that the father mishandles medical situations and that he is uncooperative. But in relation to this date, I’m not convinced the father did anything wrong. Communication could have been a bit less brittle, both ways.

MEDICAL ISSUE DECEMBER 10, 2023

72. Carson missed five days of school from Monday December 10 to Friday December 15, 2023 -- a week when the child was in the father’s care.

a. The father said Carson and the father’s older son John ate some pizza on the Sunday which disagreed with them, and by the early morning hours of Monday Carson had developed stomach issues and was throwing up. He gave him some “Pepto Kids” which seemed to help, but he kept him home from school on the Monday because he was still exhibiting symptoms.

b. He said he didn’t contact the mother immediately, because the illness arose in the middle of the night. On the Monday he didn’t advise the mother Carson would be missing school or that the child was sick, even though the court order required that he convey both pieces of information.

c. On the Tuesday the father texted the mother that Carson had an upset stomach and was throwing up, so he would not be attending school that day. He then revealed the child had been sick and missed school the previous day.

d. On the Tuesday the mother responded “If he's missing school again, then you'll have to take him to a doctor because it's becoming a weekly occurrence while in your care. Carson is missing far too much school and his absences must be warranted. Please let me know so that I can join the appointment over video.”

e. The father responded he had given Carson “Pepto Kids”, and he seemed to be feeling better. He explained about the upset stomach likely being caused by a pizza, and said he would take Carson to the doctor if his condition worsened.

f. The mother responded: “It's only 10 am, he should be taken to school. If he is unwell enough to go to school, then please take him to a doctor.”

g. Ultimately, the father ended up taking Carson to see a doctor on the Wednesday. The mother questioned why the father waited until Wednesday to schedule a doctor’s appointment if the child had been sick enough to miss school since Monday morning.

h. The mother suggested he had previously advised her the child ate the questionable pizza on the Saturday evening, not the Sunday. The father said he didn’t recall stating it was Saturday, and insisted everything started Sunday night.

i. The mother noted that when the father took the child to a doctor on the Wednesday, the resulting medical note stated the child had been “vomiting for a 4 day period” and “diarrhea for 1 day.” She said the medical report concluded most observations were normal, and there was no problem serious enough to justify the child staying out of school.

j. The following day, Thursday, the father took Carson to the emergency room at McMaster Children’s Hospital because Carson was expressing more discomfort.

k. Later that day the mother texted the father reminding him to send a copy of Carson’s discharge paperwork from the hospital. The father responded that he had sent her what he had been given. The mother replied that she wanted more hospital paperwork. The father said he had nothing else to send. The next day the mother texted that upon reviewing his earlier texts she discovered that he had in fact sent everything, so no additional documents were required.

l. When she finally reviewed the McMaster report the mother noted that the report indicated the father hadn’t given the child any medications. The father testified however that he had given the child pain relievers, but not within four hours of the hospital visit, so that’s why he didn’t mention it. The mother says this was important information the father should have shared with the doctor.

m. During his cross-examination, when asked for clarification about what medications he gave the child; when; why; whether he felt the emergency room doctor should have been fully informed; and why he didn’t inform the mother despite the provisions of the final order -- the father was vague and inconsistent.

n. He said he kept the child out of school for the remainder of the week as a precaution and not based on a specific medical recommendation.

o. The mother said when Carson returned to her care on the Friday he presented no symptoms. The boy told her he got food poisoning from pizza and threw up several days ago. He later made a statement which indicated he considered spitting in the toilet to be throwing up.

p. The mother said because the father had kept Carson out of school, the mother was not able to pick Carson up at school on the Friday to commence her week, so an alternate exchange location had to be worked out. She said the father was disrespectful and refused to plan the exchange, even though the mother was at work and it was his parenting time. In her January 22, 2024 affidavit the mother quoted from the father’s texts, but her quotes were incomplete. She quoted the father as saying “I am not planning anything...” to convey the impression that the father wouldn’t help, and that he was putting the onus entirely on the mother. But the actual quote was “I am not planning anything, without your input.” (emphasis added)

q. In relation to the events of that week, I find that the father did not properly inform the mother about the onset and evolution of the child’s health issues; he did not immediately inform the mother the child would be missing school as of the Monday; based on the medical assessments on the Wednesday and Thursday of that week it is doubtful that the child’s absence from school for a week was justified; and the father withheld important medical information (about administering pain medication) from the emergency department physician.

73. My purpose in including these specific summaries is to outline just some examples of the inefficient and unfocussed manner in which Carson’s periodic childhood illnesses (and related school attendance) have been dealt with.

a. Both parties could have handled individual communications and decisions differently. Hindsight is wonderful and we can’t expect perfection.

b. But the strict decision-making regime set out in the existing order was intended to absolutely clarify who has what authority and responsibility. The court order contemplated this was necessary because at trial the parties had established that they can’t really agree on anything.

c. Part of the current problem is that the father’s liberal interpretation of his authority to make “day-to-day decisions” is broader than the order intended.

d. Part of the problem is that the mother is sometimes inconsistent or selective with respect to her expectations and “instructions”. And her micro-management and predisposition to fault the father at every opportunity, certainly impedes productive and unguarded dialogue.

74. Whichever parent is to blame (or more to blame), the sad reality is that on those occasions when Carson experiences a routine childhood illness, two completely incompatible dynamics surface:

a. The child’s need for mature and cooperative parenting increases.

b. The parties’ ability to provide mature and cooperative parenting decreases.

75. That can’t be allowed to continue.

76. The mother’s solution to this – and just about every other problem -- is to scrap equal time and reduce the father to an alternate-weekend parent. That’s beyond overkill.

77. The father’s solution is to transfer more decision-making authority and autonomy to him. That would also be moving in the wrong direction. With every return to court these parents keep reminding us that for Carson’s sake they need more structure and consistency in the decision-making process, not less.

78. Fortunately, these routine childhood illness scenarios don’t occur very frequently. So the related modifications to the order will be the exception rather than the rule.

79. To ensure an appropriate medical response to any periodic illnesses, and to avoid unnecessary school absences:

a. Part of the solution is to accede to the mother’s request that she be permitted to schedule medical appointments even during the father’s weeks. This would have to be on the basis that the father is given reasonable notice (which may be short notice in the case of a sudden illness). It would also have to be on the basis that if the father is unable to immediately confirm that he will take the child at the required time, the mother would have to be able to take the child at the time she had scheduled.

b. Depending on the severity of the child’s illness, it may also be preferable to temporarily transfer care of the child to the mother even during the father’s alternate weeks, only for the duration of the illness. This is not to say that the father is not competent to care for a sick child. But Carson needs to be protected from adult dysfunction, especially when he’s sick. Both before and since the January 5, 2022 order, the mother has consistently shown more awareness and reliability with respect to medical issues and medications. As well, the father’s pre-disposition to keep Carson home from school without medical justification raises serious doubts about whether he can be entrusted to make enlightened decisions during the child’s periodic illnesses. The mother appears to have a much more balanced and practical view of when the child is sick enough to go to the doctor, and when the child is sick enough to stay home from school.

80. Apart from the specific issues which arise during Carson’s periodic illnesses, the mother says there are ongoing issues in relation to the child’s medications.

a. The mother says the father does not provide Carson with his daily asthma and allergy medications. These medications do not treat acute asthma or allergy symptoms. They must be taken daily as they have a cumulative effect.

b. She challenges the father’s claim that he has been administering the medications daily. She says pharmacy records confirm the father hasn’t ordered sufficient quantities of the medication to match the amount of medication the father would have needed to properly administer the drugs.

c. Under cross-examination the father indicated the pharmacy records must be mistaken because he knows he obtained and administered the correct amounts. The mother countered that the father knew what pharmacy records she was going to present in court, so if he wanted to challenge them, he had ample opportunity.

d. The mother says Carson is a very active child. He should be given his puffer when he’s physically active, for example when he plays sports.

e. The father insists he always administers Carson’s medications properly and on the required schedule.

f. The mother provided no specific medical evidence about the child experiencing any problem as a result of inadequate or inconsistent medications.

DOGS

81. Since 2020 the father has had a dog – a bulldog named Thor.

82. Thor featured prominently in the 2021 trial. In paragraph 318(g) of my January 5, 2022 judgment I summarized the issue:

g. .....Carson has a mild allergy to dogs and a more serious allergy to cat dander. The mother has no pets, and she went on at great length about how the father’s dog and cats have seriously aggravated and jeopardized their son’s health. She used this as one of her strongest arguments that Carson should spend much less time in the father’s household. But I found these allegations to be overblown and exploitive. The father used to have a dog and a cat. There were two cats in the house when he lived with Meg. There are no cats in his house now, and it’s unlikely Meg will be bringing any cats when she sells her house and moves in with the father. But much more to the point, the medical evidence was clear that the impact of such allergies can be mitigated. And the father has more than complied with every one of the medical recommendations, to successfully shield Carson from a serious adverse reaction. The mother is probably correct that in a perfect world a “no cat” policy would be best. But she is incorrect in suggesting this is a determinative issue, or that the father has been negligent in dealing with it.

83. At trial, for many reasons I disagreed with the mother’s suggestion that it would be in Carson’s best interest to reduce his time with the father. To the contrary, I actually increased the time slightly, making it equal between the parents.

84. But as part of my effort to reduce areas of conflict and minimize health concerns, out of an abundance of caution I included a “no pet” provision in paragraph 45 of the final order:

85. Neither parent shall allow the child to be exposed to cat or dog dander. Unless otherwise agreed between the parties in writing, neither party shall allow any dogs or cats to be present in their home.

86. That should have been the end of the dog topic. But it wasn’t.

87. The father ignored the “no pet” order. He doesn’t have a cat but he kept his dog. When asked why during cross-examination, he stated “Cause I love my dog and I love my kids.” Clearly, that’s not a valid reason to ignore a court order.

88. Two years ago the mother obtained the “no pet” order that she wanted. She could have taken quick steps to enforce it, as soon as the father failed to comply. Had she returned the matter to my attention, I likely would have suspended the father’s time until he complied with the order.

89. But curiously, the mother didn’t take any timely or meaningful action concerning the dog.

90. On June 8, 2022 – five months after the final order was granted - the mother brought a contempt motion. Even then, she didn’t pursue it. Instead, on July 4, 2022 the parties entered into temporary minutes of settlement which permitted the dog to remain in the father’s home. Those minutes stated:

a. The father will not allow Carson to interact directly with his dog, including touching the dog, its food or toys, or allowing the dog into Carson’s bedroom/sleeping area.

b. The father will provide, through counsel, a video of the HEPA and MERV filters in his home. The mother acknowledges that this provision has been satisfied by videos sent to her through the father's counsel on June 29, 2022.

c. The father will have his home cleaned once per month by a professional cleaning company, and will provide proof of having done so by sending the invoice/receipt. The first invoice/receipt shall be sent through the father's counsel. Subsequent invoices/receipts shall be sent through AppClose.

90. Soon after signing those minutes, the mother got a dog.

a. She said her husband boarded a service dog for three weeks in August 2022.

b. She said her husband is a certified service dog handler. Under cross-examination she agreed that he only got his certification after the July 4, 2022 minutes were signed.

c. She acknowledged that she felt it was alright for a dog to be in her home so long as certain precautions were taken. She emphasized that the dog was not a pet, and it was only going to be in her home a short period of time.

d. She also said the dog was kept away from Carson, during the alternate weeks when the child was with her.

e. The father says this was typical of the mother’s double standard. She opposed him having a dog, but when she wanted to have a dog in her house, she suddenly signed minutes of settlement saying it was alright.

f. He also questions whether the dog was really a short-term placement in the mother’s home. He suspects the mother and her husband were unable to train their dog and that’s why they got rid of it.

91. After getting rid of her dog, the mother then again demanded that the father get rid of his dog. She says it is because the father didn’t comply with the conditions under which a dog could be permitted to remain in his home.

92. The Minutes specified that Carson was not to interact directly with the dog:

a. The mother says she has been advised by unnamed people that they have seen the father and Carson driving in a vehicle with the dog on Carson’s lap. This unattributed source constituted inadmissible hearsay evidence – and there were a number of instances in which the mother attempted to rely on inadmissible hearsay evidence about what she thought Carson was experiencing. In any event, the father acknowledged that the dog rides in the vehicle when he drives Carson to or from school, but he denied that the dog sits in Carson’s lap.

b. The mother says during video calls on the father’s week she sees the dog in the picture with Carson. She sees Carson touching and interacting with the dog. Sometimes the dog is on his bed with him, or even sitting on Carson’s lap.

c. She says it’s clear that the father has a very strong bond with the dog; he takes the dog everywhere when Carson is in his care; and as a result Carson has a great deal of interaction with the dog for the whole of the week the child is with the father.

93. The Minutes required the father to maintain HEPA and MERV filters in his home.

a. The mother says during a video call the mother was advised that there was an electrical limitation in the father’s home which prevented him from operating a HEPA filter.

b. The father says this was a temporary issue which was resolved, and the mother was shown that there is a HEPA filter in place. He resented the mother using her video calls to spy on Carson’s room to look for a HEPA filter (and to complain that the window in Carson’s room won’t open -- an accusation which the father denies).

c. During cross-examination by Zoom the father looked exasperated as he reached down and held a HEPA filter up to the camera, to prove he had one. The mother said she wanted proof not just that he had a HEPA filter in his home, but that it was actually plugged in and working.

d. Similarly, she complained that the father hadn’t provided verification that he had a MERV filter which was working. The father insisted the MERV filter is in place and functioning properly as well.

94. The Minutes required the father to have his home cleaned once per month by a professional cleaning company, and that he provide ongoing receipts.

a. The mother says the father submitted some fake receipts just before court, but he hadn’t complied with the requirement that he provide monthly proof that his home was being cleaned by a professional.

b. She said a receipt was simply signed by an individual and no information was provided about their identity or qualifications. She had asked the father for particulars of his cleaning service, but he refused to give any information.

c. She said she didn’t believe he had a professional cleaner come to the house.

d. Under cross-examination the mother denied that she was trying to control how the father ran his household. She said the minutes of settlement allowing Thor to remain in the father’s home included very specific conditions which the father agreed to. If he signed an agreement and then apparently had no intention of complying with it, then she felt he was lying and abusing the court process.

e. During his cross-examination the father said he gets his house cleaned every week but he wasn’t disclosing the identity of the cleaner because he didn’t want them harassed by the mother. He didn’t really dispute the mother’s assertion that he wasn’t complying with the minutes of settlement with respect to corroboration of cleaning by a professional. He closed off this topic by saying “I’m not going to spend the rest of my life being micro-managed by you, I can tell you that right now.”

95. The mother cross-examined the father about a statement in his January 12, 2024 affidavit. “Carson is not allergic to dogs.”

a. At first he insisted his statement was correct.

b. He then said traditional prick-testing found no allergy to dogs, but he reluctantly admitted the child’s blood work detected a mild allergy to dog dander.

c. Nonetheless, the father insisted he sees no sign of Carson having any negative response to exposure to dogs.

d. Under cross-examination he said he was not prepared to reduce Carson’s contact with the dog in his vehicle.

e. However during closing submissions his lawyer confirmed that the father undertakes to comply with whatever order results from this motion, including getting rid of the dog if that’s the court’s decision.

96. The mother was cross-examined about the dog issue:

a. She acknowledged that Carson hasn’t seen an allergist since the 2021 trial.

b. She had no updated medical evidence about how the continued presence of Thor in the father’s household has specifically affected Carson or his health.

c. She complained that the two caregivers the father uses – his son John’s mother and grandmother – both have dogs. She worries that Carson is exposed to dog dander in those homes as well, but she has no evidence of this.

d. She admitted that her own mother has a dog, but she said that’s not nearly the same danger for Carson, because the boy doesn’t see her mother as frequently, and her mother keeps her dog away from him.

97. With the passage of time since the January 5, 2022 order, this has become much more complicated than a “mild allergy to dog dander” issue.

a. The mother obtained her “no pets” order. If that’s what she wanted, she should have enforced it immediately.

b. By acquiescing – and then conditionally consenting – to the dog remaining in the father’s household, she also allowed the dog to become Carson’s pet, deeply entrenched in the boy’s life.

c. The father gave all sorts of personal reasons why he doesn’t want to lose his dog. There’s no doubt he really loves this dog. I do not accept the father’s last-minute unsubstantiated claim that Thor is actually his “service dog”. But he loves Thor a lot. That’s not the point.

d. As for the July 4, 2022 minutes of settlement, I accept the father’s evidence that he has complied with the clean air requirements. I accept the mother’s evidence that the father has allowed direct contact between Carson and Thor. I accept the father’s evidence that his home is appropriately cleaned, and I accept the mother’s evidence that he’s never provided the required proof of a “professional cleaner”. These are tangential issues.

e. The real issue – because we must focus only on the best interests of the child – is that the Thor has now become Carson’s beloved pet. The uncontroverted evidence confirms that this six-year-old boy has developed a close and loving bond with his dog. They do everything together. (Indeed, the mother’s complaint is that they do too much together.)

f. The mother does not dispute that Carson likes the dog, although she speculated – without any evidence – that the father might be overstating the bond. She noted her son never talks about Thor during his alternate weeks at her house.

g. Under cross-examination, the mother acknowledged that her son’s relationship with the dog may have intensified during the past two years. She acknowledged that Carson might even be upset if the dog was now taken away.

h. Nonetheless, she wants the dog gone, for health reasons. She’s confident Carson will get over any upset, because “he got over it when his pet hamster died.”

98. Which gets us back to an overriding issue in this case: parental insight.

a. The mother is quite correct that there have been a lot of problems and disputes since the January 5, 2022 order was issued. More of them caused by him than her.

b. Very clearly, all court orders must be obeyed.

c. But the court’s responsibility is to do more than just address parental disobedience in the abstract.

d. Whatever we do -- whatever we might change -- we always have to consider whether proposed “solutions” are more likely to help or hurt the child.

99. This dog issue is a perfect example.

a. The father should have done things differently.

b. The mother should have done things differently.

c. The child did nothing wrong. He’s fallen in love with a dog.

d. And as the medical evidence confirmed, the associated allergy risk is real but “mild” and “the impact of such allergies can be mitigated.”

e. In my lengthy January 5, 2022 judgment I spent one or two paragraphs talking about the dog – and I devoted dozens of paragraphs to reviewing the many ways in which both of these parents were making their son’s life miserable through their incessant and self-indulgent fighting.

f. In my 2022 judgment I used the word “unhappy” ten times in describing Carson’s emotional health.

g. In 2024 I’ve heard a lot less about Carson being unhappy. The father says he’s doing great. The mother says the child still has issues, but she provides few particulars -- and nothing to substantiate her blanket statement that his unspecified problems are all dad’s fault.

h. A child being “less unhappy” is sort of an underwhelming indicator of progress, but with these parents we should take anything we can get.

i. Given the high conflict environment Carson is trapped in, the court has a responsibility to preserve and promote anything that brings happiness and emotional comfort to this little boy.

j. Now that Carson has been allowed to develop such a strong attachment to this dog, the suggestion that we suddenly yank that away from him really lacks parental insight.

CHILD THERAPY

100. On the topic of Carson’s happiness and emotional well-being, the issue of counselling for the child has continued to be a source of needless conflict for the parents.

101. At trial:

a. The mother favoured counselling for the child, but she said the father wouldn’t consent.

b. The father didn’t think Carson was the one who needed counselling. He felt the mother and her husband were the ones who needed counselling. Ultimately he said he’d be willing to consider counselling for his son.

c. The Children’s Aid Society strongly recommended counselling for Carson – and individual counselling for each parent.

d. In my judgment I found that the mother was more committed to counselling than the father – both for Carson and for herself. That’s why paragraph 2 of my final order includes “counselling” as one of the areas where the mother has sole decision-making authority.

102. The mother’s evidence in this motion in relation to Carson’s emotional health:

a. In late 2022 she arranged therapy for Carson. But she hasn’t shared a lot of information about that therapy with the father.

b. In her January 22, 2024 affidavit the mother stated: “Carson is struggling with severe anxiety specifically relating to the Respondent. He has had increasingly severe symptoms since September 2023, and his teachers have noticed.”

c. But under cross-examination the mother provided little elaboration

d. She admitted that all of her stated concerns about the child being negatively impacted emotionally are based upon her own observations and perspective.

e. She was able to provide no details or examples of the “severe anxiety” she was referring to.

f. And she couldn’t specifically attribute any such anxiety to the father or the parenting regime.

g. She provided no documentation from CAS, a therapist, school personnel, or anyone else involved in Carson’s life, to corroborate her view that the child is experiencing significant problems – or that the father is responsible for jeopardizing Carson’s emotional health in any way.

103. The father’s position with respect to counselling:

a. The mother is emotionally abusing Carson and then sticking him in therapy. She’s the one who needs therapy.

b. He says from his own observation of his son during the alternate weeks when Carson is in his care – and from the feedback he gets from teachers and the school principal -- the boy is very happy and well-adjusted and doesn’t appear to need any professional help.

c. He says he has no way of knowing what problems or symptoms the mother is referring to, because she won’t tell him anything.

d. He doesn’t dispute that the court order gives the mother the right to arrange counselling for their son.

e. But with Carson spending equal time with each parent, he feels they should share any mental health observations about the child, just as they share observations about physical illnesses or symptoms. If the child is having any sort of problem in one household, the other parent should know.

f. He feels the mother is manipulating events to convey the impression that she is enlightened and that he isn’t. By promoting the concept of “counselling” she tries to make herself look enlightened. When the father asks for an explanation, she twists that to make him sound insensitive or uncooperative.

g. He’s concerned that any counselling may not be effective – or may even be counter-productive – if the counsellor is only given the mother’s side of the story, and if the father’s observations and information are deliberately withheld.

h. He’s worried that if the mother’s decision to arrange counselling is based on her completely subjective and undisclosed reasons; and if her selection of the professional is based on undisclosed criteria; then the whole process is tainted, and won’t help their son.

i. He says the real source of any stress is the mother’s relentless campaign to alienate the child from the father.

104. A January 16, 2024 exchange of texts illustrates that while the mother complains that the father doesn’t communicate sufficiently about Carson’s well being, the mother herself could also do a better job of sharing important information – for the sake of the child.

a. The mother’s initial text advised the father that Carson would be starting with a new therapist in two days. The therapist’s name and contact information was provided.

b. The father responded: “What is this therapy for? I have never seen a happier boy when he is here” and asked to be part of the initial meeting.

c. The mother replied: “It's psychotherapy. And you won't be part of that. It's his private therapy.” Under cross-examination she said she felt identifying it as “psychotherapy” was all she needed to tell him.

d. The father texted: “Holistic Psychotherapy for a 6 year, I will expect any and all information to be disclosed to me.”

e. The mother replied that the therapy sessions are private, and there’s confidentiality between Carson and the therapist.

f. Once the father asked “why is my son getting professional help, and can I be involved?”, it would have been preferable for the mother to answer those reasonable and important questions in a more meaningful way.

g. Under cross-examination the mother said neither parent would be involved in the child’s therapy sessions, so both parents were being treated equally. She was very resistant to the suggestion that the father should be involved, and she questioned why he needed to have any information, because she has sole decision-making authority.

h. But the father’s questions are legitimate. The father isn’t asking to sit in on the therapy sessions. He wants to know what problems or symptoms the mother says she’s observing. He wants to have equal input at the intake stage, so the counsellor will have a complete picture of what Carson experiences in the two households where he spends equal amounts of time. And if the counsellor has suggestions or feedback about what the adults in Carson’s life should do (or do differently), he feels that’s information that should be shared with both parents.

i. Without question (and for good reason) the final order grants the mother sole decision-making authority to arrange counselling. But even if the mother has well-founded apprehension about communicating directly with the father, the father needs to be kept in the loop. Allowing the father to convey potentially relevant information to the psychotherapist might help the therapist better understand – and address -- Carson’s life and experiences. And if the psychotherapist has any recommendations for the child’s caregivers, then both caregivers should receive that information.

j. The mother accuses the father of being controlling. And he is.

k. But so is she.

105. The mother’s position in relation to counselling does not comply with the final order, and jeopardizes the child’s need for comprehensive and informed professional assistance.

a. As stated, paragraph 2 of the final order includes “counselling” as one of the enumerated items in a non-exhaustive list of topics the mother is entitled to decide. “Counselling” is not given any distinct status.

b. Paragraph 3 requires that the mother consult with the father in relation to all major decisions involving the child. Arranging counselling (or a change in counselling) is a major decision for a child. The father should be consulted and kept informed about this, in the same way that he should be kept informed if the mother is of the view that the child needs to see any sort of doctor or other health care professional.

c. Paragraph 4 authorizes the mother to select and instruct third-party service providers, and “counsellors” and “therapists” are included in the non-exhaustive list. But all of the provisions of paragraph 4 apply to all third-party service providers, including counsellors and therapists.

d. Paragraph 4 requires that mental health professionals shall be provided with full information as to the identity and contact information for both the father and the mother. It would appear that the mother has not complied with this.

e. Paragraph 4 requires that mental health professionals be advised of the mother's sole decision-making authority, and the father's unfettered right to receive information. The mother has not complied with this. She has refused to provide the father with meaningful information. She has not provided confirmation that the previous or current counsellor have been advised of the father’s right to receive information.

f. Paragraph 4 requires that mother shall keep the father fully informed as to the particulars of all such service providers as soon as appointments, registrations or contacts arise. This includes mental health professionals. The mother has not complied with this. She has simply advised the father that counselling has started, with little explanation as to the purpose, and with no ongoing updates.

g. Paragraph 10 specifies that both parties have an equal right to obtain information from third parties “relating to the health, education and welfare of the child