Court File and Parties

Court File No.: Goderich FS18-00000005 Date: 2024-05-06 Ontario Superior Court of Justice – Family Court

Between: Christopher Michael Wright, Applicant And: Robin Elizabeth Tolchard, Respondent

Counsel: Jessica Brown and Erin Caplan, for the Applicant Self-represented (Observer)

Heard: March 7 and 8, 2024

Before: Justice E. ten Cate

Reasons for Decision

Introduction

[1] This uncontested trial arises out of a high-conflict dispute involving the parents of a six-year-old child regarding decision-making and parenting time.

[2] The application was initiated by Christopher Michael Wright, seeking “custody” of, and “access” to, the parties’ son, Callum Walker Tolchard-Wright born December 18, 2017. The respondent defended the application, but her pleading was subsequently struck. Although no child support was sought in the initial application, it was made an issue at trial.

Participation of the Respondent at Trial

[3] The trial took place over two days, virtually. Although I had discretion to allow the respondent to participate, I declined to do so pursuant to the order of Tranquilli, J. dated August 8, 2023 (motion for stay denied by the Court of Appeal on January 14, 2024) and the subsequent order of MacFarlane J. dated January 17, 2024. The cumulative effect of those orders was to strike the respondent’s pleadings and allow the trial to proceed on an uncontested basis. I therefore permitted the respondent to attend as an observer only.

[4] In exercising my discretion, I considered the investigations and findings of the Children’s Aid Society, the Ontario Provincial Police, Halton Regional Police, and a clinician retained by the Office of the Children’s Lawyer (OCL) which found that there was no evidence of sexual or physical abuse by the applicant. Those investigations failed to convince the respondent that there is no evidence supporting her allegations that the applicant sexually or physically abused their son. Despite their collective conclusion, the respondent availed herself of self-help remedies in violation of various orders of this court, detailed below.

[5] I also considered that the respondent declined to continue her participation in the OCL investigation process, which resulted in an incomplete report and deprived this court of the clinician’s final recommendations.

[6] I find that the respondent’s evidence and submissions at trial would have been founded on an unshakeable and fundamental misconception and, therefore, would not have been of assistance to me in deciding the main issues in this trial which are responsibility for decision-making and the child’s primary residence.

[7] The applicant testified at trial. I found his evidence to be reliable because it matched the documentary evidence in all material respects. He was cooperative with the CAS and OCL investigations. Although he did not give statements to police during their investigations, he was advised to refrain from doing so by counsel unless or until charges were brought, which is his right. When asked by various CAS workers regarding whether he had sexually or physically abused Callum, his answer was unfailingly, “no”.

[8] Other than the applicant, five witnesses testified, and fifty-two exhibits were entered into evidence. The applicant also filed affidavits from himself, Detective Julie Powers of the Halton Regional Police Service, John Butt (clinician retained by the OCL), Whitney Moffatt of the Halton Children’s Aid Society, and Stephanie Flood of the Huron-Perth Children’s Aid Society.

[9] Although I did not permit the respondent to participate other than as an observer, I find that I have sufficient evidence to decide the issues. I do not intend to review all the evidence received but to discuss the evidence in the context of the relevant findings I must make.

Background

[10] The applicant is an American citizen who obtained permanent residence status in Canada on February 7, 2023. He now lives in Oakville, Ontario. The respondent is a Canadian citizen who lives in Goderich, Ontario.

[11] The parties met in early 2017. The applicant was living in New York City, where he worked in the film and television industry. The respondent worked there temporarily on a visa. They dated for several weeks but never lived together. On April 21, 2017, the respondent moved back to Goderich, Ontario and their relationship ended.

[12] On April 30, 2017, the applicant received a text message from the respondent advising she was pregnant. Although initially shocked, the applicant advised the respondent he wanted to be involved in the child’s life. He flew to Florida to meet her and get to know her better. He attended prenatal classes while still living in New York. When it came time for the birth of their son, he travelled to Goderich and stayed in rented accommodation to be present. Callum Walker Tolchard-Wright was born on December 18, 2017.

[13] Callum is now just over six years of age and attends Grade 1 at Goderich Public School. He has primarily resided with his mother since his birth.

[14] Prior to moving to Canada, the applicant travelled from New York to Goderich eight times to spend time with Callum. In 2019, the applicant moved to Toronto, Ontario to be closer to his son. In April of 2021, he moved to Oakville where he continues to live in a rented townhouse. He testified he moved to Oakville because housing was more affordable, there were parks and outdoor space for Callum to play, and because Oakville was closer to Goderich. The applicant testified he has no plans to move from his residence in Oakville.

[15] The applicant continues to work in the film and television industry in the Toronto area. He is self-employed. The respondent is employed by the court in Goderich.

[16] The applicant seeks an order that Callum’s primary residence be with him and that he have sole decision-making with initially supervised parenting time to the respondent. He is prepared to consult with the respondent but seeks an order that he will have the final say on any major decisions. Once certain conditions are fulfilled, then the applicant has proposed unsupervised parenting time. He concedes that the remedy he is seeking is “drastic” but submits it is necessary to ensure Callum’s best interest because of the respondent’s unwillingness to co-parent and the harm, present and future, to Callum while in the respondent’s care.

[17] For the reasons that follow, I agree that it is in Callum’s best interest to change his primary residence from the respondent’s residence in Goderich to the applicant’s residence in Oakville and that the applicant should have responsibility for final decision-making. I also agree that the current parenting schedule should be reversed to accommodate the change in residence. However, I do not agree that the respondent’s parenting time should be supervised. I also agree that it is in Callum’s best interests that child support should be paid by the respondent to the applicant in accordance with the change in primary residence.

Relevant Prior Endorsements and Orders

[18] I will outline some of the history of this application and the comments made by various judges throughout the course of this litigation to provide context for my decision.

[19] Thirty-three previous orders have been made affecting the parties by the Superior Court and one at the Court of Appeal.

[20] Initially, the parties adhered to the “without prejudice interim interim” order of McArthur J. dated September 6, 2018, which ordered child support and specified the applicant’s parenting time. No order was made with respect to primary residence or decision-making, although the child resided with his mother.

[21] When the pandemic struck in March of 2020, the respondent withheld Callum for a weekend after the applicant took the child to a skate park.

[22] An urgent case conference was conducted on June 18, 2020, before Hebner J., at which time the parties agreed to expanded parenting time including weekday overnight access and double overnight access, every two of three weekends commencing August 8-10, 2020. In her order of June 18, 2020, Hebner J. requested the involvement of the Children’s Lawyer, stating, “[this is] a high conflict file that has had significant court involvement and the OCL’s assistance would be very helpful.”

[23] In July of 2020, just before the increased overnight access was scheduled to commence, the respondent accused the applicant of sexually and physically abusing Callum as far back as March of 2020, prior to the case conference with Hebner, J.

[24] Callum was returned to the applicant’s care on July 16, 2020, but the respondent withheld him again until September 16, 2020. The applicant served and filed an urgent motion for inter alia, contempt of the order of Hebner, J.

[25] On October 8, 2020, Carroccia J. declined to find the respondent in contempt because she found that the respondent’s conduct was based upon her reasonably held belief that Callum was being abused. The respondent resumed compliance in advance of the hearing.

[26] Hebner J.’s order regarding parenting time remains in place until today, although minor modifications have been made.

[27] The Office of the Children’s Lawyer retained John Butt, a registered psychologist, to investigate the matter and make recommendations to the court pursuant to the order of Fregeau J., dated February 9, 2022, which contained an order to provide an investigation and report pursuant to section 112 of the Courts of Justice Act, RSO 1990, c C.43.

[28] Over next two years, more allegations of sexual and physical abuse were made by the respondent until December 4, 2022, when the respondent withheld the child for over a year.

[29] The respondent brought a motion to suspend the applicant’s parenting time, or alternatively, for supervised parenting time and psychological counselling/therapy for the child. On February 1, 2023, Munroe J. adjourned the matter to a special appointment date but warned the respondent, stating,

This is a high-conflict case with a long and tortured history.

Respondent has withheld Applicant’s parenting time since early December 2022 alleging sexual and physical abuse by the Applicant. (Respondent has made similar accusations in the past which were investigated by the CAS and/or police. No risk of harm to the child by the Applicant has been found.) With regard to this most recent allegation, both the OCL and the CAS are investigating. The OCL has not completed its report. CAS has not completed its investigation.

I reminded Respondent that there is a parenting order in full force and effect. A court order is not a suggestion or request. It must be followed. Failure to follow a court order has consequences.

[30] This was the first judicial warning to the respondent.

[31] The parties then appeared before Leitch, J. on March 1, 2023, “to be spoken to”. The respondent was not present; however, she was represented by counsel. Leitch J. repeated the comments of Munroe J. and then wrote in her endorsement:

I observe that it is important that this motion proceed as scheduled considering that an existing court order is not being complied with because of the unilateral actions of the Respondent, the Respondent’s motion is based on serious allegations, the special appointment has been scheduled for a considerable period of time, the materials required for the special appointment have been filed and the special appointment impacts the best interests of a young child.

[32] This was the second judicial warning to the respondent.

[33] On April 19, 2023, Dube J. heard the special appointment. In his twenty-three-page endorsement dated May 25, 2023, Wright v. Tolchard, 2023 ONSC 3126, he noted that the applicant had not had parenting time with Callum since December 4, 2022 (physically or virtually) in violation of two previous court orders. Dube J. stated at para 16:

At the heart of this and other motions brought by the parties is the respondent’s deep and unshakeable belief that the applicant has, in the most horrific ways, sexually, physically, and emotionally abused Callum while in his care.

[34] Dube J. then outlined the findings of the various CAS and police investigations. He stated at para 22:

As of December 2022, Callum had been interviewed at least four times by the OPP and the CAS, the most recent being November 30, 2022. He has had several full medical examinations, all with negative results…. After five separate investigations by the police and CAS, the allegations of abuse have never been substantiated and no charges ever laid.

It is apparent from comments made by the respondent to the CAS, as recorded in various CAS reports, that she neither trusts nor respects their findings. The same can also be said about findings made by the OPP and some health care professionals. The respondent filed a complaint against the OPP officer who oversaw the investigation from July 2020. The respondent has filed complaints against the CAS, including on April 2, 2023 when she filed a complaint with the Child and Family Services Review Board.

[35] He then concluded at para 48,

While I do not share the respondent’s belief, it is not lost on me that I am putting her in a very difficult position by ordering her to place Callum in the care of someone who she considers to be a sexual predator. Although I truly appreciate her dilemma, I cannot emphasize more strongly, that self-help in the form of unilaterally withholding Callum from the established parenting schedule in violation of a court order will not be condoned unless a reasonable justification or excuse exists to do so – which I currently find is not the case. I appreciate that Carroccia J. previously found that when the respondent withheld Callum for the first time in July 2020, she reasonably believed that he may have been abused by the applicant... However, I find that as a result of subsequent investigations by the authorities, the respondent’s current subjective belief regarding the applicant’s alleged abuse of Callum is, in the absence of further cogent evidence, no longer reasonable.

[36] Dube J. then found that developing a close and loving relationship with the applicant is entirely in Callum’s best interest, declined to make any changes to the parenting regime, and ordered make-up parenting time. He quoted Munroe J. and cautioned the respondent at para. 52:

In accordance with Munroe J.’s clear direction, if the respondent elects to disregard or undermine, without reasonable justification or excuse, the findings of the authorities, including health care professionals, and, on that or any other basis, ignores court orders, there may be significant consequences, such as, for instance, changes to Callum’s current parenting arrangements. Considering my findings, priority with regards to Callum’s best interests, including his physical and emotional well-being, takes precedent and is the driving force behind determining future parenting issues including who ought to have primary care of Callum. If the respondent resorts to self-help remedies and disregards court orders, a court may, if in Callum’s best interest, have little choice but to revisit the long-standing status quo regarding the current parenting arrangement.

[37] This was the third judicial warning to the respondent.

[38] Despite three warnings, the respondent persisted in withholding the child, forcing the applicant to bring an urgent motion on June 14, 2023, before Tranquilli J. By this time, the applicant had not seen Callum (virtually or in person) for six months. The respondent brought a cross-motion for a s. 30 Children’s Law Reform Act assessment, supervised access and that all judges of this court be trained in accordance with “Keira’s Law”. Tranquilli J. concluded,

This is a high conflict and litigious matter with many prior motions. The motions seem to be a repeat of relief sought and evidence heard on earlier motions. At issue on these interim motions is the applicant’s entitlement to parenting time with Callum and whether the child is at risk while in his father’s care. This matter has taken up a disproportionate amount of limited court resources to the disadvantage of other parties who also have important family and civil matters to address.

[39] In Wright v. Tolchard, 2023 ONSC 4539, Tranquilli J. dismissed the respondent’s motion and found the Respondent to be in contempt of four orders addressing the applicant’s parenting time. She also found that until very recently, the respondent engaged in self-help by unilaterally withholding the child for over a year. She stated:

In the face of her steadfast and intransigent conduct, I find the respondent in contempt. She clearly advised the court that she will not follow any order that allows unsupervised parenting time to the applicant. The respondent has chronically resisted compliance with interim parenting orders over the last three years. She is abusing this public process in circumstances where the court has already directed considerable resources to the parties to the disadvantage of others.

[40] In accordance with Rule 1(8) of the Family Law Rules, O Reg 114/99, Tranquilli J. struck the respondent’s pleadings, “with the result that the matter as to Callum’s parenting order will proceed to trial without her participation or evidence”. Her order also provided terms on which the respondent could purge her contempt and restore her pleadings, with financial penalties for missed visits.

[41] Tranquilli J. left the door open to allow the respondent to participate at trial, provided that the respondent complied with all past, present, and future court orders pending trial. She also ordered that if there is any dispute about compliance, the dispute may be determined by way of a motion to be heard 30 days, but no sooner than 60 days, in advance of trial.

[42] On January 12, 2024, the Court of Appeal (Court File COA-23-OM-0352) dismissed the respondent’s motion for a stay of Tranquilli J.’s order. Miller, J.A. stated:

The moving party firmly maintains that the responding party has committed repeated and severe sexual abuse of their child. The allegations have been investigated, repeatedly, by each of the Ontario Provincial Police, a clinician appointed by the Office of the Children’s Lawyer, and the Children’s Aid Society (the “CAS”). The parties’ son has been medically examined several times, including by a specialist physician. All these investigations have concluded that the allegations are unfounded. The moving party maintains her belief that her child is in danger and believes these institutions have each failed in their duty to protect him. Several judges of the Superior Court have concluded that her belief is unreasonable.

[43] The respondent continued to withhold Callum. The applicant brought a motion for police enforcement of the parenting order compelling the respondent to deposit her passport with the court. The respondent was present as an observer, but was not heard on the motion because of Tranquilli, J.’s prior order.

[44] Cook, J. stated, “[d]espite having every opportunity to purge her contempt and comply with the court orders governing parenting time, the respondent baldly refuses to comply.”

[45] Cook, J. granted the order requested by the applicant for police enforcement of the order of Dube J. dated May 25, 2023, and an order requiring the respondent to surrender her passport to the court, for the following reasons:

a. “The respondent has demonstrated a sustained, persistent, unapologetic refusal to abide by any of the parenting orders made by this Court dating back to 2020, resulting in the applicant not having had in-person parenting time with the child for over a year;

b. The respondent is not above the law, and she is not entitled to ignore or defy orders of this Court;

c. Refusing the applicant a meaningful enforcement remedy at this stage would, in my view, bring the administration of justice into disrepute;

d. I accept the applicant’s submission that he had tried other less intrusive measures in an effort to enforce the Order of Dube J., to no avail, leaving the Court little alternative but to make happen what the respondent refuses to do;

e. While I am very concerned about the impact a police enforcement order may have on a child of Callum’s tender years, whether the police enforcement is needed remains entirely up to the respondent in circumstances that all she must do to avoid the order sought today is to comply with orders previously made by the Court;

f. The record before me demonstrates the extreme lengths to which the respondent has gone to prevent the child from being in the applicant’s care and her history raises real concern in my mind that there is material risk that the respondent might abscond with the child if she has her passport.”

[46] Finally, when faced with an order for police enforcement, the respondent relented and in-person parenting time resumed the next day (December 22, 2023). During the year the respondent withheld Callum, the only time the applicant saw his son was during a virtual visit on November 1, 2023.

[47] In an attempt to regain her rights at trial, the respondent brought a motion pursuant to the order of Tranquilli, J. On January 17, 2024, MacFarlane J. described the Respondent’s conduct as “shocking”. In his oral reasons he stated,

The respondent admits that she continues to be in default of paying significant amounts, clearly over a hundred thousand dollars in total, that are due under several orders of the court, both with respect to costs and fines levied against her for contempt of court. Both based on the months of substantive orders following the August 8, 2023 order of Tranquilli J., and due to the ongoing failure to pay amounts due, I find that the respondent has not ‘complied with all past, present, and future court orders pending trial’ as required by paragraph 3 of Tranquilli J.’s order to earn her participation rights back. Accordingly, the motion to reinstate pleadings is dismissed.

[48] Since December 22, 2023, the Applicant’s parenting time has continued uninterrupted pending this trial.

Investigations of Sexual and Physical Abuse

[49] John Butt, who is a registered psychologist and the clinician retained by the OCL, testified at the trial. His partial report was submitted by the OCL and forms part of the court record. I found his limited evidence helpful.

[50] He testified that he conducted five interviews with the applicant, observed Callum in the care of each parent (twice each, for a total of four sessions), interviewed Callum twice alone, and conducted 13 collateral interviews including with Callum’s school, CAS of Huron Perth and a consultant retained by the Applicant named Dana Libby. He reviewed 110 records from different sources including Callum’s school and medical records, and a report from Dr. Erin Ross who was working with the respondent. He also reviewed a summary of the application called “Talking Parents” which contained approximately 1500 files.

[51] Although the referral was made on June 27, 2022, there were several CAS investigations pending which forced the OCL to “stand by” while they were completed. This created some delay. Ultimately, the report was discontinued, and a partial report filed on April 13, 2023.

[52] Mr. Butt testified that the respondent stopped corresponding with him on January 31, 2023. She subsequently directed a complaint about him to the OCL head office on March 7, 2023. After corresponding with her, the OCL head office determined that it would continue with its investigation, and that Mr. Butt would continue to be the clinician on the file. The respondent was given until April 14, 2023, to advise as to whether she wished to re-engage in the OCL process. No correspondence was received from her, and the investigation was discontinued by him at the direction of OCL head office.

[53] Mr. Butt was asked what steps remained to complete his report. He testified he wished to conduct updated interviews with the parties and perhaps the child. At the time he was directed to discontinue his involvement, he had not received disclosure from the Huron Perth Children’s Aid Society (CAS). He also wanted to review the CAS file from Huron Perth and then write his analysis, discussion, and recommendations. He testified he would also have conducted a disclosure meeting with the parties prior to releasing his report.

[54] Mr. Butt described these last steps as “critical” because the purpose of the report is to provide recommendations to the court. As a result of the respondent’s failure to continue her participation, no recommendations were ever made.

[55] During his investigation, Mr. Butt received several Occurrence Reports from the Ontario Provincial Police, two different CAS files (Toronto and Halton), medical records from various sources, videoclips from the Respondent, a 69-page document from the respondent entitled #brokensystems, and additional information from the maternal grandmother.

[56] Although the applicant initially resided in Toronto, CAS Toronto wanted CAS of Huron-Perth involved because the child lived in Goderich. There was therefore overlap between the CAS agencies.

[57] At Appendix B of his report, entitled, “Discontinued Report of the Children’s Lawyer” dated April 13, 2023, Mr. Butt provided a summary of the collateral sources. At page 21 he stated,

In light of the findings, the agency determined there was no role for the Society and closed the file. The sexual assault allegation was not verified, but the agency did verify the child’s exposure to on-going post-separation conflict. In response to the agency’s decision, Ms. Tolchard wrote in an email on September 1, 2020 in which she wrote, ‘I don’t know how you came to the conclusions you did from your investigation, but they are wrong. Callum’s mental, physical and emotional wellbeing are in danger because of this decision…In the past 7 months in Ontario and Quebec, 3 little girls have died while in the care of their fathers. These men displayed many of the behaviours as shown by Christopher Wright. Pathological lying, manipulation, control, obsessiveness, harassment, gaslighting, no fear of consequences, different forms of direct abuse and abuse by proxy are some examples…Having knowledge of Cluster-B personalities and mental health disorders is imperative in understanding this file…I am terrified of what will happen to Callum if he is sent back to the sole care of his father. Abusive treatment will be directed at Callum to punish me. It has happened before and it will happen again, I have no idea what this man is capable of hand how far he will go. Christopher Wright has lied in court to judges, on documents, to doctors, to me, my family and his own lawyers’.

[58] On January 26, 2021, CAS Toronto requested the assistance of Huron-Perth CAS. According to a supervisory notation,

There has been a long history of sexual abuse allegations by mom in regards to dad assaulting child. The latest referral was coded 13K (child Minimally at risk of Harm by Commission due to Abusive Sexual Activity) and is to be briefed. Rather than the concerns in that referral our concerns are that mom believes the child is being sexually based and is seemingly obsessed with it. This will impact the child…We are asking that Huron Perth go and assess mom and child and offer supports. As such, the joint OPP-CAS investigation was coded as a concern with Caregiver Capacity, Child at Extreme risk due to Caregiving Skills.

[59] On November 28, 2022, the respondent again shared her concerns and provided additional emails and videos to Mr. Butt which he referred to CAS. As of a January 19, 2023, interim update interview with the HPCAS Investigation Worker, Julia Ford, she was very clear that the matter remained under investigation by the agency and no final decisions had been reached. However, she indicated to Mr. Butt that Callum’s reports were not consistent with the respondent’s concerns and that to that point there had been no verification of sexual abuse and no reports from the community. However, there was a concern that in relation to the impact on Callum of repeated investigations, interviews, and/or as yet unverified allegations. She also noted that there were concerns regarding the accuracy of the videoclips of Callum provided by the respondent.

[60] Halton CAS then became involved because the applicant moved to Oakville. The Halton CAS file was obtained pursuant to a court order which detailed their involvement in early 2022. There was an interagency discussion regarding how to proceed. The agency record noted, “[i]f another allegation of sexual abuse regarding Callum is reported, a full file review should be completed, as Callum has now been forensically interviewed 4 times by police and CAS, and has had a full medical examination at 2 hospitals, all with negative results.”

[61] A February 1, 2022, closing letter from Halton CAS to the applicant briefly advised that the Society had completed its investigation and was not verifying that Callum had been sexually abused by him. However, a letter of the same date addressed to the respondent was far lengthier and expressed concern to her that Callum might be emotionally harmed due to the ongoing exposure to parental conflict. It further stated that the Society did not have any concerns about Callum visiting the applicant and that she was “encouraged to follow the current family court order and the family court process.”

[62] On December 1, 2022, the HPCAS requested assistance with its investigation from Halton CAS. They met with the applicant who expressed his concern for Callum’s emotional well-being considering the repeated investigations. He further denied speaking poorly to Callum about his mother, denied that Callum presents as fearful of him, and was very clear as to his sensitivity to Callum with respect to inappropriate touch. During the interview, the Halton CAS worker observed the home conditions, and noted the presence of lots of toys, an appropriately furnished bedroom and playroom. The Halton CAS advised HPCAS that it had no concerns stemming from its home visit and meeting with the applicant.

[63] According to the records, there were inter-agency discussions between Halton CAS and HPCAS regarding consideration of ‘roundtable’ meetings between the parents to be facilitated by CAS, and a possible recommendation of counselling, given the presence of ongoing emotional harm concerns due to exposure to post-separation adult conflict. Notes in the file suggested that the concerns with respect to emotional harm pertain to the repeated, but unverified, sexual abuse allegations.

[64] Mr. Butt also reviewed the OPP file, including several occurrence reports which detailed police involvement and joint investigations with CAS. The first investigation occurred as a result of a complaint by the respondent on June 1, 2019, about the applicant’s conduct in which she alleged that he may have taken a video or photograph of her, and drove past her three times, without engaging her. The complaint was investigated but no charges were laid.

[65] The respondent contacted police again on July 7, 2020, advising that Callum might have been sexually assaulted. She therefore cancelled the applicant’s parenting time. The supplementary report revealed that the respondent made a generic concern for sexualized behaviour. That investigation was terminated due to “insufficient evidence to proceed”.

[66] The respondent was unhappy with the result of the police investigation. The OPP agreed to receive additional information from the maternal grandparents, and specifically the paternal grandfather, who was a retired police officer who questioned the OPP investigator regarding various further investigations, including the submission of forensic evidence. Although in the view of the OPP there was not supporting evidence of a sexual offence, “compassionate” arrangements were made for a one-time, objective evaluation of the forensic evidence. A sample was taken on July 16, 2020, from Callum’s cheek which showed negative results. The investigator also consulted with the Sick Kids Suspected Child Abuse and Neglect Program and determined that a forensic interview is not recommended given Callum’s young age. The investigator also noted that a pediatrician at the London Children’s Hospital had stated, “anal penetration at this age would be expected to leave some notable acute physical findings on his physical exam that would be specific to sexual abuse”.

[67] After these additional investigations were undertaken, the file was closed, and no charges were laid.

[68] On February 11, 2021, the Huron Perth CAS worker reported “concerning actions” as reported by the respondent. Police assisted the CAS with the investigation and interview of Callum. Play-based therapy and/or child counselling was recommended as well as training for both parents in “advanced parenting tips and techniques”.

[69] On May 12, 2021, Huron Perth CAS again reached out to the OPP following a new allegation of abuse reported by the respondent. The CAS expressed concern about multiple interviews of a three-year-old child. Over the course of three days, the OPP reviewed a USB drive provided by the respondent which contained before and after clips in support of her claim that the applicant had cut Callum’s hair. She also submitted a document entitled “#BrokenSystems1”; this contained family court orders, CAS documents, and medical reports, and expressed her concerns about the system, previously investigated allegations, and the current investigation. The OPP again consulted with the Child Sexual Exploitation Unit and provided a summary of their investigation which declined to investigate in favour of local area crime units. On May 19, 2021, the OPP informed the respondent that based upon the investigation results to date, there were no grounds to apprehend Callum.

[70] The respondent made another complaint of sexual abuse on June 10, 2021. The HPCAS advised that it needed to conduct additional follow-up interviews. The OPP determined that no police action was required pending further information.

[71] On January 21, 2022, Halton Regional Police investigated after the respondent’s psychologist, Dr. Ross, reported concerns of sexual abuse that were reported to her by the respondent. When informed by the police that Callum’s visits with his father would continue unrestricted and that there was no evidence to support a criminal charge, the respondent “became very upset, said she would never call police again, and indicated that the outcome made her look badly in the Family Court”.

[72] As of January 18, 2023, the Halton Regional Police records show that further to the November 28, 2022, referral to HPCAS by the respondent and Mr. Butt, and subsequent to the investigation by the OPP, the HRP was asked to assist. They assigned Detective Powers who was a detective with the Child Abuse and Sexual Assault Unit. She was assigned to review “all material provided by the OPP and determine if there would be any further action required”. Detective Powers also interviewed the applicant on December 20, 2022. He denied any type of abuse, expressed his frustration with the process, and advised he was concerned about the effect of the repeated investigations on Callum. She also reviewed two additional recordings provided by the respondent of Callum being interviewed by Mr. Butt. In his commentary, Mr. Butt states that he was not aware of the recordings being made and did not provide his consent for such recordings to be made. Detective Powers reviewed the recordings provided, and subsequently interviewed Mr. Butt on December 28, 2022.

[73] In her summation, Detective Powers noted that Callum had been interviewed by police five times and concluded that there were insufficient grounds to believe an offence had been committed and that the threshold for reasonable grounds had not been met. In her supplementary report, Detective Powers noted that, based upon a conversation with a Halton CAS supervisor, if a further request is made of Halton CAS to open a file, the file will be “flagged” due to the number of investigations conducted and the effect this may have on Callum.

Issues

[74] Against this backdrop, the issues I must determine are:

1. What decision-making responsibility (formerly “custody”) order is in the best interests of the child, including the child’s primary residence?
2. What is the most appropriate parenting time arrangement?
3. How much child support should be paid, and to whom?

Discussion

Issue #1: What decision-making responsibility (formerly “custody”) order is in the best interests of the child, including the child’s primary residence?

[75] The main issue I must determine is whether it is in Callum’s best interest to change his de facto primary residence from his mother’s home in Goderich, where he has lived since birth, to his father’s home in Oakville.

[76] Unfortunately, I do not have the benefit of a full report from the Office of the Children’s Lawyer (OCL), which would likely have assisted me. In the absence of recommendations of the OCL, I must therefore decide what it is in Callum’s best interests based upon the testimony of the witnesses, and the evidentiary record.

[77] The Children’s Law Reform Act, RSO 1990, c C.12, states,

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.

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

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the chilI(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

[78] The onus on the applicant to satisfy me that the proposed change in the child’s primary residence is in his best interests. I will review the relevant factors above in light of the evidence.

(a) The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

[79] I am satisfied that the applicant would provide Callum with a stable home in Oakville. He gave up his home in New York and work overseas to move to Canada. He obtained his permanent residence status in Canada in 2023. He rented a townhouse in Oakville with a room for Callum close to parks and schools. He now has friends in the Toronto area, some of whom testified at the trial. He has now been living in Canada for over five years and testified he has no plans to move. Although he works on a contract basis, he has consistently worked in the Toronto area.

[80] I am also satisfied that the applicant will meet Callum’s needs as he develops. Before Callum’s birth, the applicant engaged the services of Dana Libby, who has a master’s degree in social work and is registered as a child development specialist in Ontario with over twenty years of experience. Ms. Libby testified that since 2018 the applicant has consulted her intermittently and that she has met with him on six to eight occasions. Initially, they discussed development and attachment issues associated with a long-distance relationship with an infant. Once the applicant moved to Canada, she advised him regarding appropriate access with Callum given the distance between the parents’ homes. Ms. Libby also assisted the applicant regarding re-starting parenting time post-delay and counselled the applicant regarding his own emotions and how to prevent them from negatively impacting his relationship with the respondent, and, therefore, Callum. Ms. Libby indicated she is available virtually or in-person should the applicant require further assistance. The applicant testified that he would continue to seek Ms. Libby’s advice as Callum matures.

[81] There is no question that the status quo favours the respondent. However, in my view, the word “stability” in the legislation includes regular, consistent parenting time with both parents which is not occurring consistently. While Callum’s current living situation appears stable on its face, the respondent’s actions have consistently placed him at risk of harm, through being withheld from the applicant and undergoing multiple and repeated investigations due to the respondent’s extensive history of frequent, unfounded allegations of abuse. Consistency of parenting for this six-year-old child will not occur if he remains in the primary care of his mother due to her repeated unilateral actions. A change in his primary residence is therefore necessary to ensure the stability of Callum’s environment, his health and well-being.

(b) The nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

[82] I have no doubt that Callum has a close and loving relationship with the respondent, with whom he has lived for his entire life.

[83] I am also satisfied that Callum has a close and loving relationship with the applicant. However, that bond has been jeopardized on several occasions by the unilateral actions of the respondent.

[84] The applicant testified that on December 22, 2023, after the respondent allowed him to resume parenting time, Callum met his paternal grandmother, who flew into Toronto to be with them for Christmas, and they fell back into their “old routine”.

[85] Jenny Itwaru, a friend of the applicant, testified that when he saw his father for the first time in over a year, Callum showed no hesitation, ran up to him, gave him a big hug, and told him how much he missed him. They then drove back to Oakville to celebrate Callum’s two missed birthdays and Christmas.

[86] Scott Riopelle and his wife Rebecca Donohoe observed the applicant interacting with his son on several occasions. They testified that the applicant is an engaged and caring parent and that they would trust him to care for their own daughter. I found their evidence compelling.

[87] While I am confident that the applicant is committed to facilitating Callum’s relationship with his mother, I have no confidence that the respondent is committed to facilitating Callum’s relationship with his father. For instance, when Callum stays for the weekend, the court order mandates a call to the respondent for 15 minutes. The applicant testified that on one occasion, Callum wanted to continue his conversation with the respondent over breakfast, so the applicant moved the iPad to the breakfast table so Callum could speak to his mother for as long as he wanted. On the other hand, the respondent has abruptly ended Callum’s calls with his father, sometimes in mid-sentence. Ms. Itwaru testified that she witnessed one such truncated call, which she found upsetting.

(d) The history of care of the child;

[88] There is no issue that Callum has resided primarily with the respondent since his birth. Once parenting time was restored, Callum has spent substantial amounts of time with his father pursuant to the order of Hebner J., including double overnight access.

[89] While the case law is clear that the status quo is an important factor in determining the child’s residence, it is not determinative. In my view, the analysis of the child’s best interests must not reward maintenance of a status quo that is dysfunctional due to the withholding of the child from the other parent and repeated and unnecessary investigations based upon unfounded allegations which place the child’s health and well-being at risk.

(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;

[90] I find that the applicant has put forward a reasonable plan for Callum’s care. The applicant testified he intends to enroll Callum in a private school called Oakville Christian School, located close to his home. If space is unavailable at the private school, there is also a public school nearby. He has located a local medical clinic and a pediatric dental clinic for Callum. Their residence will not change; Callum will continue to live in the same house he has repeatedly visited. Callum has his own room and a play area in the living room with room for his games and toys.

[91] The applicant testified he has made inquiries and plans to hire a nanny to assist with Callum, but has not arranged one pending the outcome of this trial. His hours of work depend on the shooting schedule and stage of the production. Sometimes his days can last 12 hours or longer, but during the post-production stage he works primarily from home. He works from 30 to 60 or 80 hours per week, but his work is always in the GTA. He testified he has arranged a bed in his home for the nanny should the need arise.

[92] I asked the applicant what he would do if he received an emergency call from Callum’s school. He testified he would typically have flexibility to pick up Callum from school, but he can also call upon friends to assist. Two witnesses, Scott Riopelle and his wife Rebecca Donohoe, testified that they would be available to assist the applicant with childcare should that become necessary.

[93] Although his childcare plan has not been finalized (pending my decision), I am satisfied that the applicant will make appropriate arrangements for Callum’s care when he is called upon to work extended hours. I am confident that Callum will be cared for even when the applicant is heavily engaged in work. I am also satisfied that the applicant will make appropriate arrangements for Callum’s schooling, medical, and dental care and that he will seek Ms. Libby’s advice regarding any developmental issues presented by Callum as he matures, and that he will arrange counselling for Callum should it become necessary.

(i) The ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

[94] I am also satisfied that the applicant will consult with the respondent on matters of importance. The applicant sought the advice of Ms. Libby regarding the importance of never speaking ill of the other parent, and he testified he has followed her advice throughout this litigation.

[95] On the other hand, I have very serious concerns about the respondent’s willingness to consult with the applicant, given her conduct to date.

[96] First and foremost, in contravention of numerous court orders, and despite at least three judicial warnings, the respondent withheld Callum from his father for a period of over a year. It was not until police intervention was imminent that the respondent allowed the applicant to see his son. Had the applicant not sought police enforcement, there is little doubt that the respondent would have continued to withhold the child.

[97] Additionally, there are numerous instances of the respondent failing to provide timely medical and other information to the applicant. For instance, in February of 2024 (a month prior to trial) the applicant learned from Callum that he had punched another child at school. When the applicant requested details from the respondent, she initially ignored his request and then told him to contact the teacher. Similarly, the applicant was not told about a visit with the family doctor in which Callum advised the doctor that there was “a monster in his head that told him to do things to people”.

[98] The respondent retained two different play therapists, both of whom treated Callum, without telling the applicant.

[99] This lack of sharing of important school and medical information is highly concerning to the court; it demonstrates the respondent’s intransigence and lack of willingness to communicate and co-operate with the other parent which is clearly not in Callum’s best interests.

[100] Of particular concern is an email “to whom it may concern” dated March 13, 2023, from Wendy Dell, one of the play therapists retained by the respondent. According to her email, Callum was referred by the respondent “due to chronic abuse from his biological father” and that Callum attended 10 sessions of play therapy with her. This email post-dated the various police and CAS investigations, including the investigation review by Detective Powers, which concluded that there was no evidence of abuse.

[101] The email from Wendy Dell, which was made an exhibit at trial, is extremely concerning for two reasons: (a) the applicant was not informed about the play therapy before it occurred; and (b) the referral was made by the respondent based on false and misleading information regarding allegations of abuse after she was already aware that the authorities had concluded there was no such evidence. The only conclusions I can draw are: (1) that the respondent is completely unwilling to include the applicant in treatment decisions for Callum, and (2) that she was trying to mislead one of Callum’s therapists. It is her own best interests, and not those of Callum, which are her primary focus.

[102] Equally concerning is a note contained in Dr. Treasurywala’s records dated July 20, 2020. On that occasion, the family doctor examined the child for signs of sexual and physical abuse. Dr. Treasurywala made several recommendations, including a referral to the “maltreatment team” at Victoria Hospital. The doctor asked the respondent whether the father should be advised. Dr. Treasurywala’s note states, “I have been told by mom that I am not required to call Chris [the applicant] to update him on this information”. Based on this note, I can only conclude that the respondent attempted to prevent important medical information from reaching the applicant.

(j) Any family violence and its impact on, among other things,

(i) The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) The appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child;

[103] On March 1, 2021, subsection 24 (4) was added to the Children’s Law Reform Act to include factors relating to “family violence” under clause (3)(j) as follows:

(4) In considering the impact of any family violence under clause (3) (j), the court shall take 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 the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.

[104] The result is that the impact of family violence is an important factor in determining what is in the best interests of the child. Section 18(1) of the Children’s Law Reform Act broadly defines “family violence” to mean any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct.

[105] “Family violence” need not include physical violence as per Chappel, J. in McBennett v. Danis, 2021 ONSC 3610, at para. 85.

[106] In S. v. A., 2021 ONSC 5976, at paras. 26, 29, 30 and 31, Tranquilli, J. analyzed the issue of “family violence” within the context of section 16.1 of the Divorce Act, RSC 1985, c 3, which mirrors subsection 24(4) of the CLRA. She found that the children were entitled to a good relationship with both parents and that the pattern of the mother’s pattern of controlling behaviour constituted emotional harm of the children and therefore “family violence”. She therefore transferred primary care of the children to the father and granted him responsibility for decision making.

[107] The same reasoning was applied by Tranquilli, J. in this case (Wright v. Tolchard, 2023 ONSC 4539), in which she observed that “damaging a child’s relationship with the other parent or preventing a child from having separate feelings for the other parent may also constitute ‘family violence’.” She found that the respondent’s overall conduct throughout this litigation demonstrates resistance to any feedback or input from third parties who do not validate her concerns.

[108] After reviewing the evidentiary record and hearing the viva voce evidence, I must conclude that over the last three and a half years of this litigation, the respondent has engaged in a pattern of conduct designed to alienate Callum from his father, thereby risking serious emotional harm. I am very concerned that Callum may be exhibiting signs of stress, including monsters in his head telling him to “do things to people”. If this pattern is allowed to continue, Callum’s relationship with his father, and therefore Callum’s growth and development, will be damaged.

[109] Tellingly, Detective Powers noted that Callum had been interviewed by police five times and indicated the file will be “flagged” due to the number of investigations conducted and the effect this may have on Callum. Callum was forced to undergo several physical examinations, and to give a medical sample from his cheek. In the view of the detective assigned to the file, Callum is in very real danger of being affected by the sheer number and scope of the investigations. His file is now “flagged” by those authorities because of concerns about his well-being due to the investigations themselves, and not because of any concerns about the applicant’s treatment of Callum.

[110] According to the CAS records, there were inter-agency discussions between Halton CAS and HPCAS regarding consideration of “roundtable” meetings between the parents to be facilitated by CAS, and a possible recommendation of counselling, “given the presence of ongoing emotional harm concerns due to exposure to post-separation adult conflict”. The harm was not due to any sexual or physical abuse by the applicant, but because he is being subjected to adult conflict. The applicant testified that the respondent refuses to participate in any meetings or to be in the same room with him even if facilitated by CAS.

[111] The respondent’s refusal to continue to participate in the OCL process to provide valuable input to this court signals her unwillingness to engage in an exercise that would likely have assisted this court for the benefit her son. Rather than putting her son’s interests first, she has made it clear to this court that she views her own interests as paramount.

[112] I therefore find that Callum has been exposed to family violence by the respondent such that he is at risk of emotional and psychological harm. While a reversal of the status quo primary residence will be difficult initially, the alternative is to leave Callum in the care of the respondent who refuses to believe the conclusions of police, CAS, and the clinician retained by the OCL, and will likely continue to use self-help remedies to prevent Callum from seeing his father which is not in Callum’s best interests.

[113] I find that the long-term detrimental impact caused by the mother’s disregard of Callum’s needs and her repeated attempts to sever his relationship with his father outweigh the short-term difficulties of the primary residence reversal: see A. M. v. C.H., 2019 ONCA 764, at para. 23. I also find that this potential harm does not exist if the applicant is the primary parent.

[114] I therefore find that the applicant has discharged the onus regarding the reversal of the status quo and grant him an order that Callum’s primary residence shall be with him commencing July 1, 2024, in order to allow Callum to complete his school year in Goderich and to minimize the effect of such a change on him.

[115] The respondent has repeatedly withheld information regarding Callum’s health and well-being from the school, from treatment providers, and from the family doctor. I have no confidence that such behaviour will not be repeated. I therefore grant the applicant responsibility for ultimate decision making, after consultation with the respondent as he proposes.

Issue #2: What is the most appropriate parenting time arrangement?

[116] The applicant has proposed the same parenting time arrangement as is currently in place. I see no reason to vary that arrangement, other than it will be the reverse of the present arrangement. I agree, in large part, with the proposed parenting time in the draft order submitted by the applicant, with some modifications. However, I do not agree that the respondent’s parenting time should be supervised given that there is no evidence to suggest that she is unable to care for Callum, since she has been doing so since his birth.

[117] The applicant also submits that supervised parenting time should continue until the later of two months from the commencement of supervised parenting time; and the parties have “successfully completed co-parenting counselling with an accredited psychologist, which ‘success’ will be determined by the psychologist at his/her own discretion.”

[118] The respondent refused to continue engaging with the registered psychologist retained by the OCL. The applicant testified that the respondent will not be in the same room with him. I am concerned that the choice of a mutually agreeable psychologist and measuring “success” is an exercise in futility which will necessitate further litigation, to Callum’s detriment. In my view, this application requires final determination to allow Callum to grow up peacefully.

Issue #3: How much child support should be paid, and to whom?

[119] Although child support was not sought by the applicant initially, the caselaw is clear that child support is the right of the child. Since I have ordered a switch in his primary residence, I find that it is in the child’s best interests that child support be paid by the respondent for Callum’s benefit. I note that the applicant has been paying child support to the respondent throughout since his birth.

[120] The only current information available to the court regarding the respondent’s 2023 income is gleaned from an Ontario government pay stub which was attached to her own financial statement. If that pay stub is annualized, she earns $42,692.00. According to the Child Support Guidelines (Ontario), the child support payable is therefore $390.00 per month. I therefore order the respondent to pay the applicant $390.00 per month commencing July 1, 2024, to coincide with the child’s change in primary residence.

[121] Although I was asked to impute minimum income to the respondent of $35,000.00 regardless of her present income, I am not prepared to do so.

[122] I order that child support shall be adjusted each year on July 1, 2025, commencing in 2025 based upon the respondent’s income in the prior calendar year.

[123] I also order that the parties shall share the costs of Callum’s special and extraordinary expenses proportionate to their income, to be adjusted annually on July 1 of each year commencing in 2024. Based upon the parties’ respective incomes (the respondent in the amount of $42,692.00 and the applicant in the amount of $181,401.00), the applicant is responsible for 81% of Callum’s special and extraordinary expenses, and the respondent is responsible for 19%.

[124] The parties shall exchange copies of their respective income tax returns no later than June 1 of each year, and shall adjust child support and the proportionate share of Callum’s special and extraordinary expenses accordingly.

Costs and Penalties

[125] I am advised that all of the orders for costs and penalties for missed visits payable by the respondent remain outstanding for a total of $168,890.00 including $127,500.00 for missed visits as per the order of Tranquilli J. dated August 8, 2023. However, that amount includes $1,500.00 per visit for breaches of virtual visits that should have taken place at 6 p.m. but took place at 7 p.m. instead. If those visits are removed, the total penalty figure as of the date of trial is $94,500.00. I find that although the visits took place one hour late each time, they did take place, and, therefore, I would reduce the penalty figure to $94,500.00. The parties are reminded that going forward, virtual visits must take place as per my order unless varied by mutual agreement in writing.

[126] I have reviewed the cost submissions of the applicant. The applicant has paid $341,267.67 in legal fees, HST, and disbursements after deducting costs claimed and ordered on the various previous motions necessary in this matter. On a substantial indemnity basis, he seeks a total of $274,817.40. On a partial indemnity basis, the net total is $228,302.21 consisting of $194,058.31 for fees, HST on fees of $25,227.58 and disbursements of $9,016.32.

[127] Rule 24(12) of the Family Law Rules sets out the factors to be considered when awarding costs. In this case, the child’s primary residence and decision-making are of utmost importance to the parties. The respondent has unnecessarily complicated and prolonged this matter, forcing the applicant to repeatedly pursue redress through the courts at great cost. The hourly rates charged by his lawyers and their legal staff are reasonable given their experience. The applicant has been largely successful at trial, and costs should follow the event.

[128] Typically, the respondent’s unreasonable behaviour would attract an award closer to full indemnity, however, I am mindful that the respondent’s income is modest and that the child will be in her care for significant amounts of time. I therefore order that the respondent pay costs to the applicant on a partial indemnity basis in the amount of $228,302.21.

Disposition

[129] I therefore order as follows:

1. The child, Callum Walker Tolchard-Wright born December 18, 2017, shall commence residing primarily with the applicant no later than July 1, 2024, at 4:30 p.m. If the parties cannot agree on the location for the exchange, it shall occur at the Upper Queen’s Park in Stratford, Ontario.
2. Pursuant to section 36(2) of the Children’s Law Reform Act, any police service having jurisdiction in any area where the child may be is hereby directed to do all things reasonably able to be done to locate, apprehend, and deliver the child to the applicant for the purpose of giving effect to the applicant’s right to primary residence as set out in this order.
3. Pursuant to section 36(7) of the Children’s Law Reform Act, the order in paragraph 2 shall expire once the child has been delivered to the applicant as per paragraph 1. This order will expire on December 31, 2024, at 4:30 p.m.
4. The digital signature of the judge or clerk of the court on this order, which signature is verified under a security certificate, shall be sufficient authority for the police service to enforce this order.
5. The respondent’s passport, which was forfeited to the court pursuant to the order of Cook, J. dated December 21, 2023, shall be returned to her once the child has been delivered to the care of the applicant.
6. The applicant shall have primary responsibility for decision-making regarding the child’s welfare, including: a. health; b. education; c. culture, language, religion and spirituality; and d. significant extra-curricular activities.
7. The applicant shall first consult with the respondent in respect of all important decisions in paragraph 6 and shall seek her input. After this consultation process, the applicant shall be at liberty to decide, and shall advise the respondent of his decision, in writing via “Talking Parents”. Despite any opposition or disagreement by the respondent, the applicant’s decision shall prevail.
8. If the child requires emergency medical care while in the care of one party, that party shall promptly notify the other of the emergency and of any treatment provided to the child.
9. The respondent shall have parenting time with the child every other weekend in Goderich, Ontario from Friday at 4:30 p.m. until Sunday at 3:30 p.m. The parenting exchanges shall occur at the Upper Queens Park in Stratford, Ontario.
10. When the child is not in their care, the other party shall have virtual parenting time with the child for a minimum of 15 minutes commencing at 8:45 a.m. on Saturdays and during the week commencing at 6:00 p.m. on Tuesdays and Thursdays. Each party shall facilitate the virtual parenting time of the other.
11. In even numbered years, the applicant shall have the child from Friday after school at the start of the Christmas school break until Saturday in the middle of the break until 4:30 p.m. The respondent shall then have the child for the rest of the break and return him to the applicant by 3:30 p.m. on the evening before the first day of school in January. This arrangement shall be reversed in odd-numbered years.
12. In even-numbered years, the child shall remain with the applicant commencing on the Monday morning and ending on the Friday evening of the March school break, which will attach to his regular weekend. In odd-numbered years, the child will have parenting-time with the respondent.
13. Each parent shall spend up to three (3) weeks with the child during the summer school break, not exceeding 14 days consecutively. The applicant shall have first choice of weeks on even-numbered years and the respondent in odd-numbered years. The parent with the first choice of weeks will advise the other by January 15th annually, and the parent with the second choice will advise the other by January 30th annually. The balance of the summer school break will follow the regular parenting-time schedule.
14. If there is a long weekend, whether due to a statutory holiday or a school professional development day, the party scheduled to exercise parenting time on that weekend shall have the child until 3:30 p.m. on the day before the start of school on Tuesday, or if the day off from school is a Friday, shall pick up the child on Thursday at 4:30 p.m.
15. With respect to Mother’s Day and Father’s Day, regardless of the regular schedule, the child shall have parenting time with the honoured parent from Friday at 4:30 p.m. until Sunday at 3:30 p.m. The regular parenting schedule shall resume the following weekend such that the non-honoured parent shall have parenting time.
16. The child shall spend his birthdays in accordance with the regular schedule set out, herein and the other parent shall have virtual parenting time at 6:00 p.m. on the child’s birthday for a minimum of 15 minutes.
17. The respondent shall pay to the applicant the sum of $390.00 per month commencing July 1, 2024, based upon her current imputed income of $42,692.00 pursuant to the Child Support Guidelines (Ontario).
18. The parties shall exchange income tax returns no later than June 1 of each year. Child support shall then be adjusted each year on July 1, commencing in 2025, based upon the respondent’s income in the prior calendar year.
19. The parties shall share the costs of the child’s special and extraordinary expenses proportionate to their respective incomes (currently $42,692.00 for the respondent and $181,40.00 for the applicant) such that the applicant is responsible for 81% of the child’s special and extraordinary expenses and the respondent is responsible for 19% of the child’s special and extraordinary expenses.
20. The child’s special and extraordinary expenses shall include those expenses enumerated in section 7 of the Child Support Guidelines (Ontario) as well as the following: therapy, tutoring, and one summer camp.
21. Unless the support order is withdrawn from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
22. The clerk shall issue a support deduction order under section 11 of the Family Responsibility and Support Arrears Enforcement Act, 1996, SO 1996, c 31, for the periodic support.
23. The child’s health card shall travel with him between the parties’ homes.
24. The applicant may apply for an American passport for the child and the respondent shall sign the application. The applicant shall also be responsible for renewing the child’s Canadian passport, as required, and the respondent shall sign the application. The applicant shall keep both child’s passports and shall provide one or both to the respondent when required for travel.
25. Either party may travel with the child outside of Ontario during his or her parenting time as follows: a. commencing immediately, the applicant may travel with the child; b. commencing in June of 2025, the respondent may travel with the child; and c. the traveling parent shall provide a complete itinerary, including flights and accommodations, at least 30 days before travel and the non-traveling parent shall provide his or her signed travel authorization at least 15 days before travel, which document shall be notarized at the traveling parent’s expense.
26. At all times, the parties shall: a. prefer the child’s interests to their own and keep the child’s best interests in mind; b. encourage the child to have a good relationship with the other parent; c. refrain from making disparaging or negative remarks to the child about the other parent, and discourage others from doing so in the child’s presence; d. exchange information and communicate about the child, such communications to be through “Talking Parents” in a private, respectful and thoughtful manner, related solely to the child and not shared with him or third parties without the other’s consent; e. share all documents regarding the child by scanning the document and then sending it through “Talking Parents” without requiring the child to transport the document between them; f. refrain from discussing with the child, or with a third party in the presence of the child, present or past legal proceedings, issues between the parties in any such legal proceedings or any such conflicts between the parties; and g. ensure that all information or documentation, including this order, pertaining to this court case, including all personal correspondence or email communications in respect thereof, is inaccessible to the child.
27. Both parties may make inquiries and be given information by the child’s teachers, school officials, doctors, dentists, therapists, health care providers, camp counsellors, or other professionals involved in the child’s care. The parties shall co-operate and execute any required authorization or direction necessary to enforce this paragraph.
28. The total penalties arising from the Order of Tranquilli, J. dated August 8, 2023, without the inclusion of the initial $5,000.00 fine for contempt, to date equal $94,500.00. The total retroactive adjustment of child support owing from the applicant to the respondent to date equals $7,893.00. The child support adjustment of $7,893.00 shall be deducted from the total amount of $94,500.00 owing by the respondent to the applicant for a total payment of $86,607.00 owing from the respondent to the applicant.
29. The respondent shall pay to the applicant costs in the amount of $228,302.21 which represents partial indemnity costs of $194,058.31 plus HST on fees of $25,227.58 plus disbursements of $9,016.32.

Justice E. ten Cate Released: May 6, 2024