COURT FILE NO.: FS-14-00036938-0004

DATE: 2024 07 08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Magdalena Lopatowski

Applicant

Heather Alexander, for the Applicant

• and -

Cezary Lopatowski

Respondent

Shawn M. Philbert, for the Respondent

HEARD: October 17-20, 24, 25, 27, 31, November 24, December 15th, 2023 and January 8th, 2024

REASONS FOR JUDGMENT

LEMAY J.

1The Applicant, Magdalena Lopatowski (“the Applicant) and the Respondent Cezary Lopatowski (“the Respondent”) were both born in Poland. They met while they were at school in the United States and began living together on July 15th, 2005. They were married on February 2nd, 2006 and separated on July 7th, 2014. The parties have one child of the marriage, Olivia, who was born August 1st, 2012, and who will turn twelve shortly.

2The parties were divorced on November 18th, 2015. They agreed on minutes of settlement in mid-2016, and those minutes of settlement were converted into a final order of Fitzpatrick J. dated August 5th, 2016. Key among the provisions of the Order was a provision giving the parties joint decision-making authority¹, and granting them each significant parenting time. The Order of D. Fitzpatrick J. also set out the financial arrangements for the parties.

3In October of 2021, the Respondent brought a motion to change. In that motion, he was seeking expanded parenting time, a reduction in the child support amounts he was paying and an order in respect of section 7 expenses. The Applicant responded to this motion by bringing a motion to change of her own, seeking sole decision-making authority and to severely curtail the Respondent’s parenting time.

4The matter proceeded to trial before me, and the question of whether there was a material change in circumstances sufficient to justify a change in custody was a live issue.

5For the reasons that follow, I have determined that there has been a material change in circumstances such that I can revisit the final Order of Fitzpatrick J. I have further determined that the parties are incapable of making decisions in respect of Olivia jointly and that the Applicant should have sole decision-making powers. However, I have not acceded to the Applicant’s request to severely curtail the Respondent’s parenting time. I have also made some adjustments to the financial arrangements between the parties.

Background

a) The History and the Parties’ Relationship

6The Applicant is currently 45 years old and the Respondent is currently 47 years old. They were both born in Poland, although in different parts of the country. They both attended university in Poland, although again different universities. The Respondent’s pre-relationship education includes a Masters degree in Economics.

7The parties met in New York City in 2001 where they were exchange students studying English. They started dating in 2002 and were married on February 2nd, 2006 while they were living in New York. They both completed degrees in New York. In 2005, the Applicant completed a degree in liberal arts. The Respondent completed his MBA in 2007.

8The Respondent obtained a job as a Regional Manager with CS Financial in 2007. In 2008, the parties moved from Mississauga to New York and purchased a house. There is a question about whether the Respondent was prepared to support the Applicant in getting her MBA once they moved to Canada. The end result was that she did not get her MBA at least in part because she remained home with Olivia, and this affects her earnings capacity.

9At the time of the move, the Applicant was unemployed, but she secured employment at TJX Canada as a stock person. She is still employed at TJX as a District Coordinator, which I understand is a higher level position.

10Olivia was born on August 1st, 2012. She was healthy when she was born. Some health concerns have been identified, and I will deal with those below.

11The parties separated on June 7th, 2014, when the Respondent was arrested for allegedly assaulting the Applicant. These charges were ultimately resolved when the Respondent entered into a peace bond. The Respondent testified that he entered into a peace bond voluntarily and that he did not acknowledge or admit any wrongdoing. Counsel for the Respondent points out that a peace bond under section 810 of the Criminal Code is not an admission of wrongdoing. Reid v. Neale 1996 CanLII 5278 (N.S.C.A.). I accept that submission. As will be seen below, I am not making any finding that the marriage ended as a result of domestic violence.

12As part of the litigation, the matter was referred to the Office of the Children’s Lawyer (“OCL”). A report was prepared and provided to the parties on April 22nd, 2016. That report recommended sole decision-making authority for Olivia should rest with the Applicant, observing that “it is clear that the parties are not in a position to make decisions together.”

13Notwithstanding these observations, the parties settled approximately two weeks prior to the commencement of trial. The settlement was converted into an Order and signed by D. Fitzpatrick J. on August 5th, 2016. For the purposes of these reasons, the important points from that order were:

a) The parties would have joint decision-making authority over Olivia and joint residency.

b) The parties agreed that there would be a parenting coordinator who would resolve any disputes that they could not resolve.

c) The parties agreed that there would be no spousal support ever paid to the other party.

d) The parties agreed that set-off child support would be payable based on the sum of $476.00 per month. This was the full child support amount based on the Respondent’s income, even though the agreement also states that Olivia lived with each parent 40% or more of the time.

e) The Order was silent on parenting exchanges between the parties.

14There have been significant disputes between the parties since the final Order of Fitzpatrick J. was signed. I turn to those now.

b) The Events Subsequent to the Final Order

15In spite of the fact that there was a Final Order, the parties were in Court for two separate issues between August of 2016 and the end of 2018. The first issue was a request by the Respondent in July of 2017 to adjust his pick-up time for Olivia by one hour for the purposes of the flight that they were taking. Gibson J. dismissed this request, finding it to be “abusive”.

16Second, there was considerable litigation over the choice of the parenting coordinator. This litigation arose in spite of the fact that the Applicant had been given the authority under the Order of Fitzpatrick J. to select the parenting coordinator from a short list included in the Order. The parenting coordinator was to provide a series of services, including secondary arbitration for a period of two years. The Applicant selected Risa Ennis as the parenting coordinator. Unfortunately, Ms. Ennis did not provide the secondary arbitration services that were envisioned by the consent Order.

17As a result of this, a further parenting coordinator had to be selected. The Applicant refused to select from the other names on the list as she viewed the costs associated with the parenting coordinator as prohibitive. A motion was brought by the Respondent to force the Applicant to choose one of the other parenting coordinators. That motion was heard on June 8th, 2017, and Gibson J. directed the appointment of Shely Polak as the parenting coordinator.

18Ms. Polak was not appointed as the parenting coordinator. The Respondent brought a further motion. He alleged that the Applicant was in contempt of the orders of D. Fitzpatrick J. and Gibson J. In response, the Applicant argued that both Orders in respect of a parenting coordinator were without jurisdiction. In reasons set out at 2018 ONSC 824, Gray J. rejected that submission and found that the Applicant was required to appoint a parenting coordinator. He did not make a finding of contempt and, instead, gave the Applicant thirty days to consider the matter.

19There was an appeal of the decision of Gray J. that was ultimately resolved. The Applicant says that it was the Respondent who reached out first to resolve the appeal. The Respondent disagrees and says it was the Applicant who requested that the appeal be resolved. Ultimately, the appeal was resolved.

20In spite of all of this litigation, a parenting coordinator was never engaged by the parties to make decisions, and the appointment of the parenting coordinator expired in April of 2019.

21In 2015, the Respondent changed employers. He became a Branch Manager at Easy Financial Services. In December of 2018, the Respondent resigned from his employment with Easy Financial Services and went on Employment Insurance. This was around the same time that there was to be a review of support, but that review never took place. In mid-2019, he obtained employment as a Mortgage Agent with True North Mortgage Incorporated. I will address this issue in more detail when I consider the financial aspects of these motions to change.

22As a result of the fact that the respondent became unemployed, he moved back in with the Applicant and Olivia in early January of 2019. On the Applicant’s evidence, the Respondent threatened to rent a cheap and dirty apartment and make Olivia spend his parenting time in it unless the Applicant agreed to let him live with her and Olivia. The Respondent testified that it was the Applicant who asked him to move back in with her.

23There was a dispute, however, about both whose idea it was for the Respondent to live in the Applicant’s house and whether the Applicant tried to get the Respondent to stay in the house beyond when he arrived in 2019. The Applicant says that it was the Respondent who wanted to move in when he lost his job, and that the Respondent refused to move out until the spring of 2021. The Respondent says that the Applicant wanted him to live with her and share expenses because she had financial issues and she did not want him to move out. I will set out my findings on this factual dispute in my discussion of material change in circumstances.

24The Respondent lived with Olivia and the Applicant between January of 2019 and May of 2021. There is no dispute that the parties continued to live separate and apart and that they were sleeping in separate bedrooms. Indeed, the Respondent was required to keep the bulk of his belongings in a storage locker.

25In addition, the parties had several significant disputes as to what happened during this time period. Those disputes divide themselves into two discrete issues: child support and s. 7 expenses and who was responsible for caring for Olivia while the parties were living under the same roof between 2019 and 2021. I will deal with both issues in my analysis below.

26In May of 2021, the Respondent and the Applicant got into a fight. I understand it wasn’t the first fight. A cell-phone video of that fight was entered into evidence. At that point, the Respondent was required to move out of the Applicant’s home. He obtained a lease on an apartment in May of 2021. In October of 2021, he brought his motion to change.

27The parties have also had disputes over the activities that Olivia should be participating in. Two of those activities are gymnastics and Polish school. Olivia attends at Polish school on Saturday mornings. The Applicant’s mother (Olivia’s grandmother) testified in this trial and confirmed that she and her husband speak only Polish.

28In terms of gymnastics, the record is clear that it is Olivia’s passion and that she is good at it. She has been chosen for the Oakville Gymnastics Club’s travel team and competes at a Provincial Level. There is no doubt that gymnastics is a key part of who Olivia is and that it is in her best interest to participate in it. As will be seen, I have concluded that the interests and schedules of both of Olivia’s parents will need to yield to her gymnastics schedule except in very rare circumstances.

c) The Proceedings to Trial

29The Court made efforts to resolve this matter between 2021 and the trial in 2023. However, the matter could not be resolved. Temporary Orders were made by Kurz J. on March 11th, 2022. Those Orders addressed various issues in respect of parenting time and of the interpretation and administration of section 7 expenses pending the outcome of this trial. Kurz J. also invited the OCL to become involved in the case. They declined to do so.

30In terms of the section 7 expenses issue, the Respondent was refusing to voluntarily pay any section 7 expenses until he received credit for a set-off for previous expenses that he alleged that he had incurred. Kurz J. dismissed that request and stated that, from March 11th, 2022, forward, the costs of all medical/dental professionals, daycare and summer camps are proper section 7 expenses.

31The parties attended other conferences, including a Trial Management Conference presided over by Fragomeni J. At that TMC, Fragomeni J. ordered that certain evidence be provided by Affidavit. He also placed the matter on the Blitz list for October of 2023 and cancelled the one-day motion that had been scheduled as the motion to change. The question of whether there were costs payable as a result of the cancellation of the one-day long motion was left to the trial judge. The parties may address that issue in their costs submissions.

32In May of 2023, the Respondent brought a further “urgent” motion to prevent the payment of any further section 7 expenses pending the trial. That motion was dismissed by Mills J., who made it clear that the order of Kurz J. continued to apply until the motion to change was heard. Counsel for the Appellant argued that there was a strategic reason for this motion, namely to prevent the enforcement of the expenses through the Family Responsibility Office.

33The trial commenced on October 17th, 2023, and the bulk of the evidence was heard prior to October 27th, 2023. However, there was a further incident that was reported to the Children’s Aid Society of Halton (“Halton CAS”) at the beginning of October of 2023. I determined that it would be helpful to my deliberations to have the CAS’s reporting of this incident prior to making a final decision. As a result, a day of further evidence was scheduled for December 15th, 2023 and closing arguments were scheduled for January 8th, 2024. The parties have also, at my direction, provided written arguments that I have reviewed in detail.

34In the meantime, an urgent motion was brought by the Applicant returnable on November 24th, 2023. The Applicant asked that the Respondent’s parenting time be suspended completely until my reasons were released. Given that I was seized of the trial in this matter, the motion needed to come before me in order to ensure that inconsistent decisions were not made. I provided oral reasons to the parties dismissing the Applicant’s requests for relief with one exception.

35That exception was in respect of Olivia’s gymnastics. The record that was filed on the motion left me gravely concerned that the Respondent was not permitting Olivia to attend gymnastics when she was in his care. I advised the parties that gymnastics are important to Olivia and take priority over other activities that either parent may have scheduled when Olivia is in their care. Therefore, I ordered the Respondent to take Olivia to gymnastics when she was in his care.

The Positions of the Parties

36Although the motion to change was originally brought by the Respondent, both parties are seeking relief in this proceeding, and both parties are seeking changes to the order of D. Fitzpatrick J.

37The Applicant is seeking to have sole decision-making authority for Olivia. She is also seeking to reduce the Respondent’s parenting time, with an order that would leave the parenting time to Olivia’s discretion. The Applicant is also seeking to have the Respondent’s income deemed to be $115,000.00 and that full retroactive child support be paid back to December 1, 2018 on that income. Finally, the Applicant is seeking to have the Respondent pay his proportionate share of section 7 expenses for gymnastics, Polish school and winter and summer camps.

38The Respondent takes the position that there has not been a material change in circumstances in this case. He asserts that the circumstances that give rise to the Applicant’s requests for sole decision-making authority existed when the parties entered into the consent that led to the final Order of D. Fitzpatrick J. In spite of the Respondent’s position that there has not been a material change in circumstances, he seeks some small adjustments to the parenting order that he says are justified because he alleges that the Applicant did not follow the Final Order in respect of the parenting coordinator.

39The Respondent also asks that his obligation to pay child support be based on an income of $73,008.88 and that it should be calculated on an offset basis, given the amount of time that Olivia spends with each parent. He is also opposed to including the gymnastics, Polish school and summer camps in section 7 expenses.

Evidence

40The parties were directed to provide Affidavits that would function as their examinations in chief. The Applicant provided an Affidavit dated August 18th, 2023. The Respondent provided an Affidavit dated September 5th, 2023. I will refer to these as the Affidavits. I note that there were also Affidavits provided on the motion that I heard on November 24th, 2023. I will refer to the evidence from those Affidavits as the evidence on the motion.

41I also received an Affidavit from the Applicant’s mother Irena Cieslak, who testified with the assistance of an interpreter. In addition, the parties agreed that the records of Ms. Corene Jonat (Olivia’s play therapist) were admissible for the truth of their contents. Ms. Jonat is a registered psychotherapist.

42I also heard testimony from the following witnesses:

a) Dr. Kimberly Kent, family physician. She is the family doctor for Olivia and, at certain points, her parents as well.

b) Dr. Oksana Borys- a pediatric neurologist, who had diagnosed Olivia with epilepsy.

c) Jonathan Harley, a worker with the Halton Children’s Aid Society (“CAS”). Mr. Harley was involved with the family over a number of years.

d) Jessica Soares, a worker with the CAS who conducted the investigation in October and November of 2023.

43Given that Mr. Harley and Ms. Soares were witnesses from the CAS who provided testimony about their involvement with the family, I must consider the weight to be given to hearsay statements made by Olivia to the parties and the CAS. I will then set out some more general observations about the evidence in this case.

a) Hearsay Evidence from Olivia

44The parties were both familiar with the decision of Mills J. in A.M. v. D.M. 2023 ONSC 2113. In that decision, Mills J. had to consider the extent of the admissibility of hearsay from the children of the marriage. I must consider the same issues in this case.

45I start with the same observation that Mills J. made. Hearsay evidence of the children is admissible as a principled exception to the hearsay rule if it is both necessary and reliable. This exception is made in order to avoid compelling children to testify in family law trials. They should not be exposed to the adult conflict more than necessary. In my view, hearsay evidence of Olivia’s views, preferences and experiences is necessary.

46Reliability will be established if there is no objection to the evidence, if the statement has been repeated to more than one person or whether the statement has been made to a person who has a demonstrated skill in interviewing children. On that point, I would note that there are statements that the Applicant (and the Respondent) claim were made by Olivia that are different from statements made by Olivia either to her therapist or to CAS case-workers. This suggests that I need to approach the reporting of both the Applicant and the Respondent cautiously.

47The statements made by Olivia to the Applicant or the Respondent must be subject to a host of considerations, including Olivia’s age, the risk that she was influenced or manipulated in giving the statement, the desire to appease the parent whom she was speaking to and the other circumstances surrounding the statement. A.M. at para. 7, Wilson v. Wickham 2018 ONSC 2574 at paras. 30 and 31. In this case, there is a high level of conflict between the parents and, as I will discuss, there are frailties with the evidence of both the Applicant and the Respondent. As I noted in the previous paragraph, caution is required in considering the evidence I heard from the Applicant and the Respondent about what Olivia allegedly told them.

48On the other hand, I am of the view that the CAS records are significantly more reliable. CAS records can be admitted as business records in some circumstances, even if the author is not called as a witness. Sears v. Corstine 2020 ONSC 7968. How reliable those records are well be determined on whether the CAS records record something that was directly said by a witness, or whether they record second- or third-party opinions. O.G. v. A.M. 2022 ONSC 2478. Finally, CAS records are subject to more scrutiny in a case where the CAS is a party. The Children’s Aid Society of Carleton v. V.M. 2020 ONSC 221.

49In this case, the notes in respect of Olivia were both made by a person who is experienced in interviewing children and the subject of testimony by CAS workers. The authors of many of the notes were also subject to cross-examination. As a result, those notes are reliable.

50Counsel for the Respondent also directs my attention to the decision in Knapp v. Knapp 2021 ONCA 305. In that case, the Court of Appeal noted (at paragraphs 26 to 29) that, while the views and preferences of the children must be considered, the context must also be considered. In Knapp, a key part of the context was the fact that the mother had taken the children out of the home and had kept them away from their father while professing fear of him. In this case, Olivia is spending regular time with her father. The children in Knapp were also 9 and 6. In this case, Olivia was 11 or 12, depending on when the most recent events took place.

51In this case, I am mindful of not drawing too many conclusions about Olivia’s views from the evidence of the Applicant or the Respondent. However, I am of the view that Olivia’s views as expressed to CAS workers as well as what she has told these workers about what she has experienced is evidence that I can (and should) give weight to. I also note that these records are useful in determining what evidence the parties gave about Olivia’s views was corroborated by what Olivia reported to a third party. In my factual analysis, I have applied these principles. I do not intend to specifically review the detailed chart of evidence provided in the Respondent’s reply submissions.

b) Other Issues

52A final observation about the evidence that I have heard and read in this matter. The Affidavits provided by counsel were in excess of 500 pages. There were also hundreds of pages of CAS records, medical records and other documents. There were a total of 2700 pages in the CaseLines exhibit section. I have considered all of this material in reaching my decision. I have no intention of reviewing all of this material in my reasons. I will refer to it as is appropriate.

The Issues

53In their submissions, the parties identified a number of different issues that needed to be resolved. I have reviewed those issues and, based on my overall view of the evidence in the case, identified the following issues that must be resolved in this case:

a) Whether there is a material change in circumstances that permit the Court to review the parenting arrangements.

b) If there is a material change in circumstances, is joint decision-making appropriate? If not, which parent should have the decision-making authority?

c) What orders should be made in respect of parenting time?

d) What should the Respondent’s income be for the purposes of child support?

e) What amounts of child support should be paid by the Respondent from and after January 1st, 2019?

f) What section 7 expenses should the parties jointly bear the costs of?

g) What amounts, if any, should be paid by the Respondent on account of arrears for section 7 expenses?

54I will deal with each issue in turn. Before dealing with these issues, I will address the credibility and reliability of the witnesses.

Credibility and Reliability

55Credibility and reliability are related concepts. Credibility is the question of whether the witness is telling the truth to the best of their ability. Reliability is the question of whether the witness can accurately observe, recall and recount the events in question. R. v. H.C. 2009 ONCA 56, 244 O.A.C. 288 at para. 41.

56An assessment of credibility requires the Court to apply the principles set out in Farnya v. Chorny 1951 CanLII 252, [1952] 2 D.L.R. 354 (B.C.C.A.) at para. 10:

The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

57In this case, the doctors and CAS workers who testified were both credible and reliable. The evidence of both parties, on the other hand, suffered from some frailties.

58The Applicant had difficulty in separating her dislike for the Respondent from the facts of the situation. Two examples will suffice to illustrate my concerns. First, at paragraph 69 of her Affidavit, the Applicant states that she wrote to the OCL asking for their involvement in this case, but that “due to child protection concerns involving the Respondent, the OCL declined to become involved and deferred to the CAS.” The problem with this assertion is that the OCL letter does not say what the Applicant claims it says. It is an example of her tendency to overstate the problems with the Respondent.

59The second example concerns the Applicant’s claim that the Respondent was sexually grooming Olivia. This concern emanated from a complaint that had been made to the CAS about the Respondent suggesting to Olivia that he should shower with Olivia to assist her with some hygiene issues. The CAS investigated these concerns and concluded that the Respondent had boundary issues and that he had made Olivia uncomfortable. However, the CAS also concluded that the allegations of questionable sexual activity were not verified.

60In spite of the fact that the allegations of questionable sexual activity were not verified by the CAS, the Applicant continued to assert, in both her evidence and her submissions, that the issue was larger than it was. For example, in her Affidavit, she stated that “Mr. Harley informed the Respondent that the grooming behaviour had been verified by the child…” Generally, the Applicant tended to overstate the problems that were caused by the Respondent. However, as I will detail below, there were problems with the Respondent’s approach to Olivia.

61The same overstatement issue existed with the evidence from the Applicant’s mother which was also of limited value. Much of it covered the time period prior to the final Order. The evidence of more recent events only covered limited interactions between Olivia and the Respondent and only from the perspective of what Olivia was hearing and saying. That being said, this evidence does corroborate other evidence about the Respondent’s conduct. I will address the relevant evidence below.

62The Respondent was focused on his view of how things should be and had difficulty in actually being able to provide me with objective or accurate evidence. On some occasions, his evidence was plainly inaccurate and inconsistent with the surrounding evidence. One example of the problems with his evidence comes from his statements about the division of parenting responsibilities while he and the Applicant were living under the same roof from 2019 to 2021. The Respondent testified that he was responsible for dropping Olivia off at school almost every single day between 2019 and 2021. The problem with this statement is that the COVID-19 pandemic had the schools locked down for a considerable period between March of 2020 and May of 2021 when the Applicant moved out into his own property again. Olivia wasn’t going to school for much of this time so the Respondent could not have been dropping her off.

63I have generally accepted the evidence contained in the documentation from the CAS and from the doctors as well as the evidence of those who spoke to the records. Where I have relied on the evidence of either of the parties, I have explained why I have relied on it.

Issue #1- Has There Been a Material Change in Circumstances?

64The Applicant argues that there has been a material change in circumstances, while the Respondent argues that there has not been a material change in circumstances. I will begin by setting out the applicable law on this issue and will then set out my reasons for concluding that there is a material change in circumstances in this case.

a) The Law

65The Divorce Act, R.S.C. 1985, c. 3 gives the Court the authority to vary decision-making and parenting orders. However, that authority can only be exercised in certain specific circumstances. Section 17(5) of the Divorce Act states that the Court “shall satisfy itself that there has been a change in the circumstances of the child”.

66In Gordon v. Goertz 1996 CanLII 191, [1996] 2 S.C.R. 27, McLachlin J. (as she then was) stated:

12 What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), 1991 CanLII 839 (BC SC), 35 R.F.L. (3d) 169 (B.C.S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.). Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. "What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place": J. G. McLeod, Child Custody Law and Practice (1992), at p. 11-5.

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

67In order for a change to be material, it has to be one that would likely have resulted in a different order if it was known at the time that the original decision was made. The change also has to change the child’s needs or the ability of the parents to meet those needs in a significant way. Willick v. Willick 1994 CanLII 26, [1994] 3 S.C.R. 670, Goertz, at para. 12.

68The onus is on the party who is seeking to vary the terms of an Order to prove that there is a material change in circumstances. Licata v. Shure 2022 ONCA 270 at para. 20. In that case, the Court goes on to note that the change must be one that was not contemplated by the parties and would likely have resulted in different terms.

69The Courts have also held that the previous order is presumed to be correct. Botting Harrison v. Harrison, 2017 ONSC 7790 at para. 18, Wiegers v. Gray, 2008 SKCA 7.

70If a material change in circumstances is found to exist, then the Court must consider the merits of the case and make an order that best reflects the best interests of the child in the new circumstances. Goertz, para. 9. If this stage is reached, it is artificial for the Court to restrict its’ analysis to the post-order time period. Willick, Goertz para. 18.

b) Analysis

71The Respondent has divided his submissions on the question of whether there has been a material change in circumstances into four sub-issues. Those sub-issues are:

a) Has there been a material change of circumstances since the making of the final orders that would warrant a variation?

b) Whether the fact that the parties consented to the final orders prevents this court from finding that there has been a material change in circumstances.

c) Whether the Applicant mother’s alleged refusal to retain and/or engage the services of a parenting coordinator prevents this Court from finding a material change.

d) Whether the Court can grant the Respondent’s father’s request to make a minor modification to the final consent order for school professional activity (PA) days.

72I will deal with each of the first three issues in turn. Given my conclusion that there has been a material change in circumstances, it is not necessary to address the fourth sub-issue at this point as I will be revisiting the entire parenting Order.

(i) A Material Change in Circumstances

73I have concluded that there is a material change in circumstances in this case. My analysis focuses on the following issues and what has happened with them since the final Order in 2016:

a) The Respondent’s conduct and parenting approach towards Olivia.

b) The Respondent’s approach to Olivia’s medical issues.

c) The substantially increased inability of the parties to get along.

d) The regular involvement of the CAS with the family.

e) The allegations of domestic violence.

74I will address each issue in some detail. I should also note that I have made detailed findings on each issue that I will then apply to my analysis throughout these reasons.

75Before beginning, however, I should note that at least some of the case-law observes that a change in circumstances is material if it would likely have resulted in a different order being made if it was known at the time. L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775 at para. 32, Willick at p. 688.

76The problem with applying that precise test in this case is that, based on the OCL report and the conduct of the Respondent prior to the final Order, it is quite possible that a Court would have granted the Applicant sole decision-making authority over Olivia. At the time the original Order was made, there was some conflict between the parties and the OCL had recommended that the Applicant have sole decision-making authority for Olivia. The concerns expressed by the OCL in their report continue to exist today.

77I have instead applied the test by considering whether there have been significant additional unforeseen issues and problems that change Olivia’s circumstances. In this case, I am of the view that the unforeseen circumstances I have listed in paragraph 73 amount to a material change in circumstances. In this respect, the decision in Griffin v. Bootsma [2004] O.J. No. 2781 (S.C.J.) is instructive. In Griffin, the trial judge held that the parties could not have anticipated the conflict when they settled the dispute. Similarly, in this case the parties could not have anticipated either the extent of the conflict or the extent of the Respondent’s failure to focus on Olivia’s best interests when this Order was issued.

78Both Griffin and the case before me are distinguishable from the Court of Appeal’s decision in Litman v. Sherman 2008 ONCA 485. In Litman, the Court of Appeal found that, although the parents were a high conflict couple, this did not amount to a material change in circumstances. At paragraphs 35 and 36, the Court of Appeal stated:

[35] In Griffin, however, the trial judge held that the parties could not have anticipated the conflict at the time they settled their custody dispute. The subsequent turn of events, their turning into a “high-conflict couple”, was therefore a “change” that was not foreseen according to the words of McLachlin J. in Gordon, supra.

[36] That is anything but the case here. According to the trial judge, “since the birth of their child, the parties have been altogether incapable of cooperating with one another in order to raise Rachel”. This finding is well supported by the evidence. The parties’ willingness to work through a parenting coordinator does not detract from that finding; rather it reinforces it, given one was necessary to begin with and given this regime quickly deteriorated and proved unworkable. It follows that, unlike in Griffin, the conflict between the parties did not constitute either a change or a situation that could not have been foreseen by them at the time of Nelson J.’s order.

79This case is different. The issues that have developed between the parties in the last few years are different than what existed in 2016 when the Consent order was signed. I will now outline those differences.

80Finally, it must also be remembered that Olivia was just 4 at the time that the Order was issued. The fact that a child will age is reasonably foreseeable when a final Order is issued. However, the changes that the child undergoes as they age may not be reasonably foreseeable. In particular, significant health related issues that develop as a child ages are unlikely to have been reasonably foreseeable at the time of a final parenting Order for a very young child.

The Respondent’s Conduct and Parenting Approach Towards Olivia

81Since 2016, the Respondent has had significant difficulties in putting Olivia’s interests before his own. There are three ongoing examples that demonstrate these problems. First, there is the Respondent’s approach towards Olivia’s therapy. Second, there is the Respondent’s approach towards Olivia’s gymnastics. Finally, there is his insistence that Olivia be available to speak to him no matter the time of day. I will deal with each of these issues in turn, and then provide some more general observations on the Respondent’s parenting approach towards Olivia.

Olivia’s Therapy

82Olivia has been described by her doctors and the Applicant as a shy girl. In his testimony, Mr. Harley stated that Olivia would “greatly benefit” from someone that she felt safe speaking to. Mr. Harley also noted that creating the conditions for Olivia to feel safe speaking about her concerns was difficult in the context of a CAS investigation. Based on these observations, I can see why having Olivia speak to a therapist would be in her best interests.

83Indeed, the Applicant first proposed that Olivia be provided with therapy in November of 2021. The Respondent, in his Affidavit sworn in 2023, states that the Applicant “indicated that Olivia needs therapy, which in my view was completely unnecessary.” Based on my review of his evidence as a whole, I infer that this remains the Respondent’s view.

84However, it was not only the Applicant who thought that Olivia should be sent for therapy. In January of 2022, Halton CAS recommended that Olivia be sent for therapy. This recommendation was reinforced by Dr. Borys in August of 2022 and Dr. Kent in September of 2022. It took the Respondent nearly a year to agree to send Olivia for therapy.

85Olivia was referred to Ms. Jonat for therapy in September of 2022 and continues to have therapy with her as of the time of the trial. In June of 2023, the Respondent took the position that therapy with Ms. Jonat might not be necessary and that Olivia should be referred to Rock, which is a free therapy service in Halton Region. In cross-examination, it became clear that the Respondent had not investigated Rock and had not thought this issue through. This is part of why I have inferred that the Respondent, to this day, does not believe that therapy for Olivia is necessary.

86In her September 25th, 2023 report, Ms. Jonat has identified that Olivia has self-esteem and communications issues. She has also observed that Olivia is anxious and has presented with insecurities. Ms. Jonat’s report recommends that Olivia continue with therapy sessions 1-2 times per month.

87I would note that Ms. Jonat’s concerns are reflected in both the doctors notes and the CAS records that I have reviewed. I am of the view that therapy is appropriate for Olivia. In addition, the Respondent’s conduct in respect of therapy raises two significant concerns for me:

a) The Respondent seems to want to substitute his own judgment for that of everyone else, including Olivia’s doctors. He had made a determination that therapy was not necessary and delayed its implementation for almost a year. He still views it as being unnecessary and is now advancing strategies to try and discontinue it.

b) The Respondent has a financial motivation in stopping the therapy with Ms. Jonat. He admitted in cross-examination that the work benefits he had have been used for the year. Given his approach to section 7 expenses (discussed below), it is easy to infer that part of the reason he does not want to continue with the therapy is that he does not want the expense.

88Both of these concerns are issues that would not have been foreseen when the original Order of Fitzpatrick J. was made back in 2016. Both concerns also illustrate problems that the Respondent has in both understanding what is in Olivia’s best interests and in actually putting Olivia’s best interests before his own interests.

Olivia’s Gymnastics

89The record is replete with references to the fact that Olivia enjoys competitive gymnastics and is good at it. For example, Ms. Jonat’s September 25th, 2023 report states that Olivia is “excited, proud of her achievements in gymnastics and connected to the friendships made there.” The fact that Olivia’s continued participation in gymnastics is in her best interests is both obvious and inescapable.

90However, the Respondent has made it clear that he will not be participating in paying for gymnastics. This is set out in emails that he sent in June of 2023 as well as in 2022. The Respondent has also been reluctant to take her to gymnastics during his parenting time to put it mildly.

91In addition, as will be detailed in the medical evidence below, the Respondent advised Olivia in June of 2022 that he had decided that she would no longer be allowed to participate in gymnastics. Ultimately, this decision was not carried through. However, it is indicative of the Respondent’s desire to have Olivia stop participating in gymnastics.

92Olivia has gymnastics on Wednesdays, Thursdays and Sundays. The Respondent has not been prepared to take her to gymnastics on Wednesdays at all. He was only prepared to have Olivia attend at gymnastics on Thursdays if the Applicant facilitated her attendance by picking her up from school and delivering her to gymnastics.

93In addition, the issue of gymnastics came up in the hearing of the urgent motion on November 24th, 2023. The Applicant’s Affidavit for that urgent motion sets out e-mail correspondence between the parties in which the Applicant advises the Respondent that Olivia has a gymnastics competition on the following Sunday, November 26th, 2023. The Respondent’s position is “regarding the competition, as previously communicated I already have prior arrangements for that Sunday in the afternoon. I will check if I can move things around.”

94The Respondent’s Affidavit on the motion states that the prior arrangements were a trip to the Santa Claus parade. When this issue was argued, it was not clear to me that the Respondent was willing to change his plans and ensure that Olivia could participate in the gymnastics competition. Given the Respondent’s history of reluctance in facilitating Olivia’s participation in gymnastics, I determined that it was necessary to make an immediate order requiring that Olivia attend every scheduled gymnastics event during the Respondent’s parenting time. I indicated to the parties that I would have made this Order at the conclusion of the trial and before rendering the rest of my decision in any event.

95I will briefly spell out why this Order was necessary. First, as noted above, gymnastics is an activity that provides Olivia with self-esteem and fulfillment. Her participation in it is clearly in her best interests. Second, the Respondent is unwilling to finance the gymnastics and is reluctant to have it interfere with his parenting time. In light of those circumstances, it was necessary to make an immediate Order to ensure that Olivia could continue with her full gymnastics program.

96More generally, the Respondent’s approach to Olivia’s gymnastics raises two concerns that are very similar to the concerns I have set out at paragraph 87. The Respondent does not appear to understand the importance of participating in gymnastics to Olivia’s well-being and he is not interested in preferring Olivia’s participation in gymnastics to either his own schedule or his financial interests. Again, these are concerns that would not have been known at the time of the Order of Fitzpatrick J.

Olivia’s Availability to Speak to the Respondent

97One of the problems that, according to the testimony I heard, occurs regularly is the Respondent’s insistence that Olivia be available to speak to him whenever he contacted her while she was with the Applicant. Three examples of this conduct will suffice to illustrate the point.

98First, there was Olivia’s 11th birthday. On that occasion, the Applicant’s parents had come to Canada and Olivia’s birthday party had been delayed to coincide with her grandparents’ arrival. The Respondent was aware of the party in advance. However, he texted and telephoned Olivia on several occasions, and demanded that she take his phone call, which she did. I have been given no reason why the Respondent needed to speak to Olivia on that day. The only basis for requiring this conversation was paragraph 5 of the final Order. In other words, the Respondent was insisting on a strict enforcement of his rights.

99I also find that, by the end of the conversation with the Respondent, Olivia was quite upset. On this point, I accept Ms. Cieslak’s evidence as well as the fact that the Respondent has had numerous occasions on which he has insisted on speaking with Olivia on an urgent basis for no apparent reason.

100In that respect, I note that there was an incident on a Saturday in June of 2022 (before the birthday party) where the Respondent sent a text message to the Applicant at 10:01 am. It stated “Maggie, I have now called twice already this morning- 9:30 and 10:00 a.m. Both of my calls were not answered. I would like to talk to Olivia and need you to facilitate the call.” I had no explanation as to why the Respondent needed to speak to Olivia urgently on a Saturday morning other than that he wanted to talk to Olivia. While she may have been ill on the previous day, there was no reason to insist on a call back within a half hour on a weekend morning.

101There was also an incident where the Respondent called Olivia in the evening. Olivia ended the conversation after a minute or two because she had to walk her dog. She also apparently had a friend over that evening. The next morning, the Respondent sent a text message to the Applicant advising that she need to follow the Court order and leave Olivia alone to talk to him when he calls.

102The Respondent was cross-examined about his approach to this issue. He confirmed in cross-examination that a delay of a couple of hours in responding to his phone calls would be acceptable, but that if he telephoned at 9 a.m. it would not be reasonable for Olivia to call back at 7 or 8 p.m. The Respondent’s view, as expressed in his testimony, was that there needs to be a call back to him within a few hours. His conduct suggests that he expected calls to be returned even faster than a few hours later.

103The Respondent also argued that he had difficulties communicating with Olivia when she was with her mother. There are two problems with this submission. First, the evidence was also clear that Olivia did not speak to the Applicant very often when she was in the Respondent’s care. Second, the Respondent’s expectations were unreasonable. The history set out in the previous paragraphs illustrates that the Respondent expected that Olivia would be available to speak with him on short notice whenever she was with the Applicant. The Respondent’s expectations in this regard were not reasonable.

104Although this is not as significant an issue as the other issues I have reviewed, it is still an indication that the Respondent has difficulties in considering Olivia’s interests and desires. It is also something that could not have been foreseen when the final Order was agreed to.

Conclusion on the Respondent’s Parenting Approach

105The issues of therapy, gymnastics and Olivia’s communication illustrate the problems that the Respondent has with considering Olivia’s interests. These problems have increased significantly since the consent Order was entered into and were not foreseeable at the time that the consent Order was entered into. As a result, these changes amount to a material change in circumstances within the meaning of the case-law.

The Respondent’s Approach Towards Olivia’s Medical Issues

106During the course of the trial, I heard testimony from Dr. Kent, the family physician, and Dr. Borys, the neurologist. The doctors were reviewing the course of treatment and their recommendations in respect of Olivia.

107The two key issues in terms of Olivia’s medical treatment are:

a) The fact that she has been diagnosed with epilepsy.

b) The concerns that she may be suffering from anxiety or some other mental health condition.

108She has also been treated for nasal issues by Dr. Janet Chung. Specifically, she has a stuffy nose that troubles her from time to time. This was a less significant issue, but I note that the Respondent had the same problems in addressing this issue as he had in addressing the other health issues.

109The issue that has arisen, and which was not foreseeable in 2016, was the extent to which the Respondent would insist on both being right about Olivia’s medical conditions and his desire to control her appointments, diagnoses and other testing in the face of contradictory medical evidence. I will deal with the two key issues in turn, and then set out some conclusions about the Respondent’s overall approach to Olivia’s medical issues.

Olivia’s Seizures and Epilepsy Diagnosis

110Since approximately 2020, Olivia has been suffering from episodes that appear to be seizures. She was referred to Dr. Borys for an evaluation and diagnosis of these incidents. Dr. Borys testified before me about her interactions with Olivia and her diagnosis of epilepsy.

111The events began in June of 2020 when Olivia had something that appeared to be a seizure in front of both the Applicant and the Respondent at breakfast. According to Dr. Borys’s notes, an EEG was ordered but was cancelled as the parents did not believe it was warranted, as there had only been one incident.

112There was a second incident in early November of 2020 when Olivia was waking up. The incident involved Olivia mumbling, having difficulty sitting and walking and she was drooling with her eyes closed. The description of this incident came from the Applicant, but I have no reason to doubt that it took place, especially given the previous incident that occurred in front of both parents. Based on that incident, Dr. Borys re-ordered the EEG. It was again cancelled. It is not clear to me why this second EEG appointment was cancelled.

113There was a third incident in May of 2021 that resulted in a further referral to Dr. Borys. At that time, Dr. Borys concluded that Olivia met the diagnostic criteria for epilepsy. It also resulted in the completion of the EEG. The EEG revealed some abnormalities that supported Dr. Borys’s diagnosis.

114In January of 2022, there was an incident that Olivia described to Dr. Borys. This incident took place while Olivia was at the Respondent’s house. It resulted in Olivia feeling woozy and having blurred vision. She went to the bathroom and fell off of the toilet. She did not know whether she had lost consciousness. There was no real reporting of this incident from the Respondent. However, Dr. Borys did not believe that this was a seizure.

115The final episode of seizures that I have any details of took place on June 23rd, 2022. It was the day after the Respondent advised Olivia that he had decided that he would no longer be willing to permit her to participate in gymnastics.

116The Respondent contacted Dr. Borys in early July about this incident. The clinical notes and records of Dr. Borys describe part of the conversation as follows:

Regarding her episode in late June, Dad wonders if this is related to dehydration on a warm day, but worries about a period of time that she describes that she was ‘out of it’ for a time and didn’t realize how she ended up sitting on the ground.

She is doing very well in school.

Dad asking if its ‘related to hormones’, but I would not think so, especially since we cannot determine what these are.

Discussed with Dad that this could be related to stress/anxiety as an atypical reaction.

Dad states that he does not feel as though she is stressed or anxious about anything and doesn’t see any concerning behaviour. He spoke to her about stopping gymnastics and she was ‘very calm’ about this and did not get the sense that this caused stress.

Dad agrees not to jump to conclusions and not interested in anti-seizure medication

117Two things flow from this note. First, the Respondent is minimizing the issues that Olivia is dealing with. Second, he has demonstrated a lack of understanding about both Olivia’s interest in gymnastics and her medical issues.

118It is also noteworthy that, shortly after this discussion. Dr. Borys recommended a referral to a formal psychological assessment for Olivia to rule out a panic disorder as the cause of the seizures. I now turn to that issue.

Olivia’s Potential Mental Health Issues

119Olivia has not been diagnosed with anxiety or, as far as I am aware, with any other mental health issue beyond the epilepsy. Ms. Jonat is a psychotherapist and is not able to diagnose Olivia with anxiety. I hasten to add that it is clear from Ms. Jonat’s notes that she has not made this diagnosis. She has just provided her observations.

120However, there is evidence to suggest that Olivia might be suffering from some form of anxiety disorder. Dr. Kent testified that she had seen some symptoms of anxiety and thought that there should be a referral to a psychiatrist for a more complete assessment. In his Affidavit, the Respondent stated (at para 98) that, after speaking with Dr. Kent, that “Olivia had no issues that would require her to be seen by a psychiatrist.” Dr. Kent was asked about this statement, and she disagreed with it. I accept Dr. Kent’s evidence that she believed that Olivia should be referred to a psychiatrist for an assessment.

121Dr. Kent was cross-examined on her position and did not waver. She testified that the referral was necessary not only because of the one assessment, but because of her previous therapy for anxious symptoms. Dr. Kent also confirmed, in cross-examination, that she had diagnosed Olivia with an unspecified anxiety disorder.

122In addition, Mr. Harley testified that he had recommended that Olivia be referred for a psychiatric evaluation. He confirmed that, on the first occasion, the Respondent was of the view that Olivia was not suffering from any significant mental health problems and that the doctors were biased because they were only presenting the Applicant’s position. On the second phone call, Mr. Harley confirmed that the Respondent was prepared to consent to a psychiatric assessment. Ultimately, in the face of a recommendation from the family doctor for a referral to a psychiatrist, it took the Respondent eight months to agree to the assessment.

123Ultimately, Dr. Broszko saw Olivia in April of 2023. At that time, her diagnosis was unspecified anxiety disorder. She also wanted to rule out three other issues, being Autism Spectrum Disorder, Attention Deficit and Hyperactivity Disorder and a learning disability. It is clear from reading this report that Dr. Broszko thought that there were issues that needed to be followed up in respect of Olivia. Indeed, she stated that she “strongly recommend psychoeducational assessment to rule out [learning disabilities] and provide a comprehensive learning profile…”

124This psychoeducational assessment had not, as of the time of trial, taken place. I understand that it had been scheduled for May 30th, 2023, but that the Respondent met with Dr. Broszko and cancelled the assessment. The Applicant stated in her Affidavit that she met with Dr. Broszko in August of 2023 and that Dr. Broszko informed her that the Respondent had advised Dr. Broszko that her diagnosis was incorrect and that Olivia does not struggle with anxiety.

125In his Affidavit, the Respondent sets out a detailed history of his involvement with Dr. Broszko. From this history, it is clear that the Respondent was not consenting to the appointment with Dr. Broszko and was attempting to slow any steps that flowed from that appointment down. It was also clear that the Respondent did not believe that Olivia had any mental health issues.

126I do not know whether Olivia has any mental health issues. However, Dr. Broszko has outlined a series of steps that she recommends be taken to determine whether Olivia has a mental health issue and, if so, what that issue is. The Respondent’s role in the entire consideration of Olivia’s potential mental health issues has been twofold. First, he has used his decision-making authority over Olivia to slow down the process of her receiving any medical assessments and/or treatment for her mental health issues. Second, he is very firmly of the view that Olivia does not have a mental health issue. He is convinced that any claim of a mental health issue has been invented by the Applicant and should be dismissed, and he maintains that view in the face of medical advice to the contrary.

127The significance of these findings is twofold. First, the Respondent’s approach to Olivia’s health is not something that could have been foreseen when the consent Order was agreed to back in 2016. The fact that the Respondent believes that the doctors are acting in accordance with the Applicant’s direction is also not something that could have been foreseen in 2016.

Conclusion on Medical Issues

128Olivia was diagnosed with epilepsy in 2022, and Dr. Borys was confident in that diagnosis when she was cross-examined before me during the trial. In addition, Dr. Kent was of the view that a referral for a psychiatric assessment was appropriate.

129This evidence has to be contrasted to what the Respondent stated under oath in his Affidavit. He said:

110. I have been in touch with all specialists involved in Olivia’s life.

111. Interestingly, they all for the most part arrived at the same diagnosis, which is that there is no issue as presented by Magdalena regarding Olivia’s health concerns.

130This evidence was given as part of the Respondent’s examination in chief in this trial. It was given after Olivia was diagnosed with epilepsy and in the face of Dr. Kent’s recommendations in respect of a psychiatric referral. It was also given in the face of Dr. Broszko’s recommendation that Olivia needed a complete psychoeducational assessment. All of this suggests that the Respondent is not prepared to listen to the advice of Olivia’s physicians, which is something that could not have been foreseen in 2016.

131More generally, the history in respect of medical issues that I have laid out above leads me to the following conclusions:

a) The Respondent is insistent that Olivia does not have any medical issues, in the face of evidence that she does have those issues.

b) Rather than listening to the medical professionals, the Respondent regularly attempts to have them change their diagnoses to fit his view that there is nothing wrong with Olivia and that the Applicant is, in his words, “actively looking to diagnose Olivia with some kind of health issues.”

132I have addressed the issue of Olivia’s therapy separately. In many ways, it is also a medical issue. As I have noted above, the Respondent’s approach to therapy is also concerning, and was also something that could not have been foreseen when the parties agreed to the final Order of Fitzpatrick J.

133Finally, it is also possible that the conflict between her parents is contributing to Olivia’s anxiety. This is something that I will address in my analysis of what Orders should be made below.

134All of these facts, however, cause me to conclude that the Respondent has his own views of Olivia’s medical conditions and is not prepared to accept the views of the doctors. This is because the Respondent believes that the doctor’s views have been strongly influenced by the Applicant. The Respondent’s approach to Olivia’s medical treatment is something that could not have been foreseen when the final Order was entered into. This issue alone is a material change in circumstances given the very significant nature of health (and mental health) to the development of a young child.

The Substantially Increased Inability to Get Along

135There is no doubt that the parties had some difficulties in getting along when they separated in 2014. There was an incident of alleged domestic violence that sparked the separation. In addition, when the parties finalized their consent in the spring of 2016, an inability to get along was something that they had contemplated. A parenting coordinator was included in the final Order.

136In both Goldman v. Kudelya 2017 ONCA 300 and Litman, above, the Court of Appeal has acknowledged that the continuation of the conflict between the parties is not sufficient to found a material change in circumstances. I accept that conclusion. However, if the conflict is substantially worse than it was at the time the Order was entered into, there could be grounds to change the Order.

137As Gray J. noted in Kerr v. Easson, 2013 ONSC 2486, aff’d 2014 ONCA 225 at para. 58:

[58] I do not accept the applicant’s argument that some of what is complained of here was known at the time the order was made, and thus cannot be relied on. Taken to its extreme, such an argument would preclude the court from making adjustments to an order, even where the welfare of the child is at stake and changes are clearly in the child’s best interests.

138Similarly, in Wreggitt v. Belanger 2001 CanLII 20827 (ONCA), the Court found that there was “ample evidence” to support the conclusion that the conflict between the parties had worsened. The Court concluded that a material change in circumstances had been made out. See also Joachim v. Joachim 2021 ONSC 8584 at para. 64. Joachim was a case where the Court found that the conflict was not worsening.

139What could not have been anticipated in 2016 was the current level of antipathy between the parties. Based on the evidence I heard, this antipathy has its genesis in two separate events. The first was the litigation over the parenting coordinator. I will address that below. The second was in the fact that the parties ended up living under the same roof for a period of more than two years. This period began before the COVID 19 pandemic but covered significant portions of the lockdown periods.

140There were two very different versions of both how the parties came to live under the same roof in 2019 and how they went their separate ways in 2021. For the reasons that follow, I prefer the Applicant’s testimony on this issue.

141I start with the Respondent’s explanation as to why he moved in with the Applicant. He testified that he moved in to help the Applicant with expenses because she was experiencing financial difficulties. The Applicant testified that the Respondent moved in with her because he had told the Applicant that he would either become homeless or would be forced to rent an unsuitable apartment.

142There are two problems with the Respondent’s testimony. First, he had resigned his position with Easy Financial shortly before he moved into the Applicant’s spare bedroom. This strongly suggests that it was him (and not the Applicant) who was experiencing financial difficulties. Second, the Respondent testified that he discovered that the Applicant was lying about her financial situation. However, he did nothing about this alleged lie for a very long period of time.

143This brings me to the evidence about what was happening while the parties lived together. The Respondent testified that he attempted to move out on several occasions, but that the Applicant kept asking him to remain in the house. There are two problems with this evidence:

a) There was a video that was provided to me of an interaction between the parties in 2021. In this video, the Appellant makes it clear that she wants the Respondent to move out. He refused to do so. This suggests that he was not willing to move out, which is contrary to the evidence that he gave.

b) The Respondent ultimately moved out when the Applicant’s parents were coming to visit for Olivia’s first communion. The Applicant suggests that the reason the Respondent moved out at this point was because he knew that the Applicant would have support to force him out of her house if he did not leave willingly.

144Two things flowed from the time the parties spent under the same roof from 2019 to 2021. First, the parties’ relationship deteriorated when they were living under the same roof. The video of their interaction is testimony to that. Second, the parties became substantially less able to make joint decisions about Olivia. Neither the fact that the parties would end up living in the same house for two years nor the fact that their relationship would deteriorate as a result was foreseeable when the final Order was signed in 2016. Again, this amounts to a material change in circumstances.

The Involvement of the CAS with the Family

145The mere fact that the CAS has been called in to investigate issues with this family is not grounds to establish a material change in circumstances. If that was sufficient, then parties could simply make complaints to the CAS in order to trigger a change in circumstances. The more important question is what do these complaints reveal, if anything.

146In reviewing the testimony from the CAS, two facts become clear. First, the Applicant has a tendency to overstate the problems with the Respondent’s parenting approach. Second, there are problems with the Respondent’s parenting approach.

147I should also note that the complaints to the CAS are of much more limited significance in dealing with the question of whether there has been a material change in circumstances. My decision on whether there has been a material change in circumstances is founded primarily on the issues of the Respondent’s approach to parenting Olivia and his approach to her medical issues. My conclusion that there has been a material change in circumstances is supported to a certain extent by the significant deterioration in the parties relationship. The reports to the CAS are more in the way of illustrations of the deterioration in the relationship. They do not significantly influence my view that there has been a material change in circumstances in this case. They do, however, influence my conclusions on other issues, so I will set out my factual findings here.

The Historical CAS Involvement With the Family

148The CAS had a significant involvement with this family over the last few years. There were some interactions with the CAS prior to the final Order of Fitzpatrick J. I do not intend to review those incidents in any great detail. I would simply note that the involvement of the CAS in this time period involved both parents expressing concerns about the other. It is indicative of some conflict between the parties.

149There were a couple of minor incidents in 2017 and 2018 that were reported to the society. There were no significant verified concerns during this time period. There was no involvement of the CAS during the time that the parties were living under the same roof between 2019 and 2021.

150The first major involvement after the Respondent moved out of the Applicant’s house was in December of 2021 when the Applicant advised that Olivia was complaining about her father being mean to her, calling her names and hitting her with toys. The CAS investigated these allegations and verified a concern that the Respondent was using excessive physical force with Olivia. He was cautioned not to do so. These issues were raised again in the fall of 2022, but there was no direct contact with the client and the CAS closed its file.

151I should also note that, during this incident in December of 2021, Olivia also raised an issue that the Respondent was grabbing her guinea pig in an aggressive way as a form of punishment. The Respondent denied this allegation as well. The Respondent has denied a number of things that I have found have happened. Based on that fact, on his heavy-handed approach to discipline and on the fact that Olivia reported this incident to the CAS, I accept that it happened.

152The second incident was the grooming incident that I have discussed above (see paragraphs 59 and following). The ultimate conclusion from that incident was that the allegations of sexually inappropriate conduct were not verified by the CAS. Notwithstanding that conclusion, the Applicant has continued to advance a narrative that the Respondent has been grooming Olivia.

153I should also note that, in her Affidavit, the Applicant stated (at para. 126) “Given [the CAS’s] poor handling of the last incident of abuse, I asked for the worker to speak to the child first this time.” Having reviewed the testimony of both Mr. Harley and the detailed CAS records, I see nothing in them that would suggest that the CAS handled any of the interactions with this family in anything other than a professional and thorough way. This appears to be the Applicant advancing a narrative that the Respondent is an unsuitable parent and expressing concern when others do not see the facts the same way. It is another example of the Applicant’s tendency to overstate problems.

154That being said, there were harms that were verified from this incident. Specifically, the CAS found that Olivia was at risk of emotional harm from her exposure to the ongoing post-separation conflict between the Applicant and the Respondent.

155Around this incident, there was also discussion with the CAS about the possibility of a psychiatric assessment. I have discussed that issue elsewhere in these reasons, and the facts demonstrate a problem with the Respondent’s approach to parenting Olivia.

The September-October, 2023 Incident

156The trial started in mid-October. The Applicant alleged that there had been an incident involving the Respondent and Olivia over the last weekend in September and first weekend in October. This weekend started on Friday, September 29th and ran until Monday, October 2nd, 2024. There is no dispute that Olivia was in the care of the Respondent during this weekend.

157The Applicant alleged that the Respondent had received Ms. Jonat’s September 25th, 2023 report over the course of the weekend and had gone into a rage where he was yelling and kicking furniture. It must be remembered that Ms. Jonat’s September 25th, 2023 report identified the potential for underlying anxiety issues with Olivia and recommended that the therapy continue.

158At the time of the trial, the incident was being investigated by the CAS. I determined that I did not want to make findings of fact in respect of this incident in the absence of the CAS’s reports and disclosure. As a result, I ultimately received the testimony of both parties and of Ms. Soares of the CAS about this incident.

159Olivia was dropped off at the Applicant’s house on the Monday morning, October 2nd, 2023. Over the course of the weekend, the Applicant alleges that she had received a text from Olivia saying that she had spent ten hours on her device (the IPad she has at the Respondent’s house). A subsequent text was allegedly sent saying that Olivia only spent an hour and a half on the device on Saturday.

160The Applicant reported that Olivia had also been sick during the time that she was at the Respondent’s and that she had been texting Olivia with suggestions to try and make her feel better. The Applicant noted that Olivia was very upset on the morning of October 2nd and did not want to go to school.

161Ultimately, the Applicant states that she was told by Olivia that her father had gotten very upset with her, had been screaming and had been kicking furniture. The Applicant also says that Olivia told her that the Respondent had been questioning her about what Olivia had told her therapist and accused Olivia of lying to her therapist. The Applicant stated that the Respondent had also hacked Olivia’s phone and reviewed her text messages. Finally, the Applicant reported that Olivia had told her that the Respondent had told Olivia that her symptoms are as a result of the fact that she does not like gymnastics.

162The Respondent denied ever kicking furniture or yelling and screaming and said that this was something that he would never do. He stated that what had happened on the weekend in question was that Olivia had not been feeling well, so he made her some tea and tried to make her feel better. He says that there was an argument between him and Olivia, but it was over the amount of time that she was spending on her device. He denies the yelling.

163Olivia was interviewed by Ms. Soares without either of her parents being present. Unsurprisingly, her version of events does not precisely mirror that of either parent. Olivia reported that her father became very angry, was kicking furniture and yelling and screaming at her, contrary to the Respondent’s version of events. He also took her cell phone and went through the messages. However, in her conversations with Ms. Soares, Olivia did not disclose any discussions with the Respondent about the therapist’s report, contrary to the Applicant’s version of events. Olivia also stated that she feels safe in the Respondent’s care when he is in a good mood, but not when he is in a bad mood. Olivia also stated that her father does continue to yell at her and that he has episodes of road rage when he is driving the car.

164I have already discussed why I am not placing much reliance on the narratives provided by either parent about what Olivia says. However, this example illustrates the dangers associated with simply relying on the parties’ reporting of Olivia’s statements. The Applicant has overstated what Olivia has reported to her. The Applicant’s overstating of these events is particularly troubling to me given the fact that the Applicant also did not want the CAS to interview Olivia. It suggests that the Applicant wanted to control the narrative. The Respondent has denied events that I find have taken place. This is also troubling to me as I believe that the Respondent is attempting to evade responsibility for his errors.

165Ms. Soares concludes that “the parents have different parenting styles, do not coparent…” I would go further and say that the parents are unable to co-parent, and that they are involving Olivia in their conflict to an extent that was not foreseeable when they consented to the Order of Fitzpatrick J. back in 2016. This is a material change in circumstances that is not in Olivia’s best interests.

Conclusion

166I am of the view that these complaints reveal two things. First, that the Respondent engages in inappropriate conduct in terms of parenting Olivia. Second, that the Applicant tends to exaggerate and magnify the issues in respect of the Respondent’s conduct. These problems are causing some of the conflict between the parents.

The Allegations of Domestic Violence

167Since the final Order of Fitzpatrick J. was issued in August of 2016, the Divorce Act, R.S.C. 1985 has been amended to add specific provisions. Those provisions are set out in, inter alia, section 16(3)(j) and 16(4). They require the Court to consider the effect of any family violence in making a parenting time Order. The Supreme Court has stated that these amendments make findings of family violence a critical consideration in the best interests analysis. Barendregt v. Grebliunas, 2022 SCC 22 at para. 146.

168The Applicant alleges that, in 2017, the Respondent hit Olivia with a tennis racket. The Respondent denies the allegation. However, this incident was disclosed by Olivia to the CAS and, as a result, I find that it took place. It happened before the incident involving physical discipline was reported to the CAS, however, and I view it as being part of that issue.

169The bulk of the rest of the allegations of domestic violence fall into two categories. First, there are the events that took place around the time of the separation. In respect of those allegations, I note two points. First, those allegations relate to events prior to the consent Order and may be relevant but only if I determine that there is a material change in circumstances. Second, there are the events that have taken place since the Respondent moved out of the Applicant’s house. Those allegations were, by and large, dealt with through the CAS and my findings in respect of them are set out above.

170However, I must also outline my concerns with the Applicant’s position. Specifically, the Applicant’s submissions on this issue provide a further example of her tendency to overstate the issues in respect of the Respondent. At paragraph 37 of her written submissions, the submissions state “[a]s an immigrant from Poland with limited English language skills, limited earning capacity and no social community in the United States or Canada, [the Respondent] was able to exert total control over [the Applicant].” The problem with this submission, simply put, is that while the parties lived in New York, the Applicant was able to obtain an associate degree in liberal arts. There is no other evidence to support this submission, and I reject it. It is another example of the Applicant overstating the concerns with the Respondent in this case.

171In the end, I have accepted the reporting of the CAS that the Respondent has demonstrated anger towards Olivia in inappropriate ways. I have also accepted that, on some occasions, he has behaved in an inappropriate manner both towards Olivia and towards her guinea pig. However, given the Applicant’s tendency to overstate the issues with the Respondent, I am not prepared to make any findings in respect of domestic violence beyond what the CAS reports have disclosed. I will return to the domestic violence issue when I address the appropriate Order in this case.

Conclusion

172For the foregoing reasons, I conclude that there has been a material change in circumstances. To summarize, the Respondent has been unable to either understand or prefer Olivia’s best interests and needs with respect to medical treatment, therapy and gymnastics since he moved out of the Applicant’s home in the spring of 2021. The extent of the problems that the Respondent has in acknowledging and acting on Olivia’s best interests were unforeseen when the August 2016 consent Order was entered into.

173In addition, the stress that these problems appear to be placing on Olivia was also unforeseen when the final Order was entered into in 2016. These issues are also material within the meaning of the case-law and, as a result, subject to the other arguments advanced by the Respondent, there has been a material change in circumstances. I will now address the other arguments advanced by the Respondent.

(ii) Whether the Fact that the Parties Consented to a Final Order precludes this court from finding a material change.

174In her written submissions, counsel for the Applicant sets out detailed reasons as to why the Applicant felt compelled to enter into the consent order. These reasons include financial pressures. There also appears to be a focus on the pre-separation history of domestic violence between the parties. The problem with these submissions is twofold. First, there is no application to set aside the current Order on the basis of unconscionability. Second, as has been discussed above, the consent Order is presumed to be correct. These arguments will not play any role in my decision on whether there has been a material change in circumstances.

175Counsel for the Respondent argues that the case-law is replete with examples of cases that confirm that joint decision-making authority agreements, once entered into, are difficult to set aside. Counsel argues that Courts should be particularly cautious about finding a material change when an order was made on consent. Counsel points to the decision in Telfer v. Alexander 2013 ONSC 6838 in support of this proposition.

176While I accept that proposition, I am of the view that the facts in Telfer are distinguishable from the ones before me. As I read the reasons in Telfer, a significant concern was the fact that not only had the order been made on consent, the motions to vary it were brought only seven months later. In this case, the motions to vary the Order were brought years later and after some very significant and unusual intervening events.

177The Respondent points to the decision in Derosier v. Derosier, 1987 CanLII 4326, (1987) 63 O.R. (2d) 367. In that case, the Court was considering the third attempt by the Applicant mother to obtain an order for sole custody. The alleged change in circumstances was the fact that the Applicant had begun a new relationship in a different City. The Court denied the application and noted that the onus to demonstrate a material change in circumstances was greater when the Order was a consent Order and when the change was sought very soon after the Consent Order was agreed to.

178Ultimately, even if the onus is different, the question that has to be answered is the same, which is whether there is a material change in circumstances. I have explained throughout these reasons why I have concluded that there is a material change in circumstances. The fact that there was a consent Order is a factor I must consider but, in the end, it does not change my analysis.

(iii) Does the Applicant’s Alleged Refusal to Use the Parenting Coordinator prevent this Court from finding a material change?

179The Applicant asserts that the Respondent was responsible for the litigation over the parenting coordinator. I reject that submission. I have set out the history of this litigation at paragraphs 16 and following, above. That history suggests that it was the Applicant who decided not to appoint a parenting coordinator once she determined that she couldn’t have her first choice and that the other possible coordinators were too expensive. The fact that, as set out at paragraph 53 of her submissions, the Applicant did not know the cost of this service does not absolve her of the responsibility to follow the Court order.

180The Respondent, on the other hand, asserts that this was always a high conflict relationship. As a result, the Respondent submits that the parties had the foresight to agree to a parenting coordinator to manage the conflicts between them. As a result, he submits that there has been no material change in circumstances.

181There are three problems with this argument. First, the parenting coordinator was time limited, with the time limitation expiring in April of 2019. As a result, there is no authority in the consent order to impose a parenting coordinator any longer. Further, as detailed by Gray J. in his reasons on this case, absent consent from the parties there is no jurisdiction for a Court to impose a parenting coordinator either.

182Second, the Respondent himself has not adhered to the idea of using a parenting coordinator. Instead, he began this motion to change. In light of this fact, it is difficult for the Respondent to argue that the presence of a parenting coordinator in the original order has any effect on what should be done at this point.

183Finally, there is the assertion that the parties were always a high conflict couple and that this was the reason for the appointment of a parenting coordinator. I reject that assertion for two reasons:

a) Parenting coordinators are not only appointed in high-conflict cases. Sometimes they are appointed to assist the parties in grappling with the “new normal” and learning to co-parent.

b) In the previous sections, I have set out how the conflict between the parties has increased significantly since the consent Order was signed. The fact that there was conflict prior to the consent Order being signed does not mean that the level of conflict has remained the same.

184For these reasons, I am not persuaded that the presence of a parenting coordinator provision in the parties’ consent order has any material bearing on whether I should decide that there has been a material change in circumstances.

c) Conclusion

185For the foregoing reasons, I have concluded that there is a material change in circumstances in this case that necessitates a review of all of the Orders in respect of parenting time and decision-making authority. There are disputes between the parties about whether some orders should be reviewed and not others. Bluntly put, those arguments are being advanced for litigation purposes and are not founded in law. Having found that a material change in circumstances exists, I am now obligated to consider the parenting and decision-making orders afresh.

Issue #2- Is Joint Decision-Making Appropriate?

186In Kaplanis v. Kaplanis 2005 CanLII 1625 (ONCA), 249 D.L.R. (4th) 620, the Court of Appeal made the following observations about joint custody, as it was then known:

The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.

187The Divorce Act has been revamped since this decision. The terms have been changed to joint decision-making authority and parenting time. The focus is now much more exclusively on the best interests of the child. All that being said, I am of the view that the principles outlined in Kaplanis are still relevant today.

188I have already detailed my concerns with the approach that both parties have had to dealing with each other. They simply cannot get along and cannot co-parent. One of the parents will have to make the final decisions in respect of Olivia. The question is which one.

189I have determined that it should be the Applicant who makes those decisions. While she is not without responsibility for the conflict here, the Applicant is substantially more willing to prefer Olivia’s interests to her own than the Respondent is. In that respect, I note as follows:

a) The Applicant understands that participating in gymnastics is a key part of Olivia’s well-being. The Respondent, on the other hand, is unwilling to put aside his preferred schedule to ensure that Olivia attends gymnastics.

b) The Respondent has difficulty in putting aside his own beliefs about Olivia’s medical condition and being prepared to accept the advice of medical professionals.

c) The Respondent has had difficulty in understanding that Olivia might need therapy as a result of the conflict between the parties and/or other challenges that she is facing, and it is doubtful whether the Respondent would continue that therapy if he was left as the sole decision-maker.

d) The Respondent has engaged in physical discipline of Olivia on past occasions, as discussed in the section on the CAS involvement and the section on family violence. I am concerned that providing the Respondent with final decision-making authority would result in further incidents of physical discipline.

190As a result, I am ordering that the Applicant shall have sole decision-making authority for Olivia effective the date that these reasons are released. I do not intend this Order to prevent the Respondent from having information about Olivia. To that end, I am also ordering as follows:

a) The Respondent will be entitled to all medical and educational information about Olivia, subject to Olivia’s rights as she gets older.

b) The Respondent shall be entitled to make inquiries of Olivia’s school.

c) The Respondent shall be consulted about all significant decisions in respect of Olivia, including her choice of high school. This shall be meaningful consultation, and shall be done in writing.

Issue #3- Parenting Time Orders

191The parties have an existing parenting time schedule, as follows:

a) The Respondent has parenting time on alternate weekends from Friday after school until Monday morning.

b) The Respondent has parenting time every Wednesday after school until Thursday morning and, on non-weekend access weeks from Wednesday after school to Friday morning.

c) Holidays, birthdays and vacation time are in accordance with the usual residential schedule. However, each party has a continuous two (2) week uninterrupted period with Olivia each summer.

192In Applicant counsel’s written submissions, she states “[Olivia] needs to be protected from [the Respondent] and removing mandated parenting time with [the Respondent] is likely to be the best solution.” She goes on to suggest that the parenting time should be limited to one afternoon visit on Saturdays from 11:30 a.m. to 7:00 p.m. would be in Olivia’s best interests.

193As I have set out above, I have some concerns that the Applicant has demonstrated a tendency to overstate the problems with the Respondent. To summarize, she has overstated the control he allegedly exercised over her while they were in New York (paragraph 170, above) the extent of the grooming issue (paragraphs 59 and following, above) and the extent of the issues in September and October of 2023 (paragraphs 163 and 164). There are other examples in the summary of the evidence.

194In my view, there is a real risk that, if the decision of how much time to spend with the Respondent is left entirely to Olivia, the Applicant will influence her to reduce that time to almost nothing. Indeed, the Applicant’s suggestion would reduce the time that Olivia spends with the Respondent from almost half of her week to just seven hours a week and only if Olivia chooses to see the Respondent at all.

195The parties also have a demonstrated inability to communicate with each other in any constructive way. The Applicant believes that the Respondent is not acting in Olivia’s best interests and the Respondent believes that the Applicant is inventing medical issues. The manner in which their time living under the same roof between 2019 and 2021 ended has also put irretrievable strains on their relationship and their ability to co-parent.

196It is clear from the CAS notes that Olivia enjoys spending time with her father. It was also clear that they had an enjoyable vacation last year. Indeed, in the CAS notes, Olivia states that she likes being with her father when he is not being mean. In my view, removing the Respondent’s authority to make key decisions (such as over gymnastics, Polish school and the like) will reduce the opportunities for conflict with both Olivia and the Applicant. Once those sources of conflict are removed, then I anticipate that the time that Olivia does spend with the Respondent will be more enjoyable.

197I am persuaded that there should be a reduction in the time that Olivia spends with the Respondent for two reasons. First, the Respondent has demonstrated no interest in taking Olivia to gymnastics. As a result, there is less reason for him to have parenting time (other than on weekends) on days when Olivia has gymnastics.

198Second, there was evidence that Olivia was spending a great deal of time on her electronic device at the Respondents. I am concerned that too much screen time is not in Olivia’s best interests. One way to manage that would appear to be to reduce the amount of time that Olivia spends with the Respondent so that the time can be more meaningful.

199However, I am not persuaded by the Applicant’s argument that Olivia’s time with the Respondent should be at Olivia’s discretion or that it should not include overnights. As I have set out above, it would likely result in the Respondent’s time with Olivia being reduced to almost nothing and I am not persuaded that this is in Olivia’s best interests.

200In setting the parenting time order in this case, I have been mindful of Olivia’s preferences and have specifically taken them account in two ways. First, in respect of gymnastics. Second, in attempting to ensure that there is less opportunity for conflict, which will mean that there should be less exposure to any angry outbursts form the Respondent.

201Given my concerns about the conflict in this case and the other issues I have set out above, I am of the view that a details and precise parenting Order is necessary. To that end, I am directing as follows:

a) Olivia shall spend alternate weekends with the Respondent, and shall be picked up by the Respondent from either school or camp after school on Fridays. She shall be dropped off at the Applicant’s at 7:00 p.m. on Sunday nights.

b) In the event that there is a P.A. or holiday on the Friday or the Monday, then the Respondent’s parenting time shall start on the Thursday after school or end on the Monday at 7:00 p.m., whichever is the case.

c) On weeks immediately following a weekend where the Respondent has not had parenting time with Olivia, he shall have parenting time with Olivia from Tuesday after school or camp until Wednesday morning. Tuesdays have been chosen because they are a day when I understand that Olivia does not have gymnastics.

202I should also note that, in terms of summer vacations, these are to be selected by the end of December in the previous year. The reason for this specific requirement is that the Applicant will want to enroll Olivia in camps for some of the summer and the parties need to have the vacation time locked down beforehand.

203Finally, there are some provisions from the final Order of Fitzpatrick J. that will remain in place. Those provisions are paragraphs 2, 4, 6, 7, 8, 11(a)-(d), 12, 13, 14, 16-25, 27-29, 32 and 34-37.

204I will address the paragraphs on child support (38 and 39) separately in my discussion of the financial issues in this case. I note that paragraphs 40 and following of the Order of Fitzpatrick J. remain in place. However, they relate to financial issues that would have arisen on the breakdown of the marriage and (other than the spousal support term) are mostly spent.

205There are also some provisions in the Order of Fitzpatrick J. that should be changed, over and above the specific changes to the decision-making authority, parenting time schedule and access to information that I have imposed. Those changes cover paragraphs 3, 9 and 10 of Fitzpatrick J.’s Order. The additional changes are:

a) In respect of paragraph 5, this paragraph is to be removed. Given the manner in which the Respondent has attempted to enforce this provision, I am of the view that it should not be included in the final Order going forward.

b) In respect of paragraph 15, March break, given the reduction in the amount of parenting time that Olivia will have with the Respondent, I am of the view that March break should be shared equally. The parent who has Olivia for the first half of March break shall have parenting time from the end of school on Friday until noon on the Wednesday of March break.

c) In respect of paragraph 26, summer holidays, summers shall follow the usual residential schedule as I have set it out except that each parent shall have a continuous uninterrupted period of up to three (3) weeks with the child. The notification process as set out in paragraph 26 shall remain as described, except that the parties shall notify each other of the weeks chosen by December 31st in the previous calendar year. This change also applies to paragraph 33 of the Order.

d) In respect of paragraph 30 and 31, given that the Applicant will have sole decision-making authority going forward, she shall be responsible for applying for Olivia’s passport. Given the reduction in parenting time for the Respondent, the cost of the passport is something that will be covered by support. The Respondent shall not withhold his consent for the application.

206I should briefly explain why I have settled on three weeks as being the appropriate amount of time for summer vacations rather than the four weeks that the Applicant was suggesting. There are two reasons for this. First, as Olivia ages, the parties will find that it is more difficult to be away for long periods of time in the summer. Second, the reason that the Applicant wished to have a longer period of time was to potentially travel to Poland to visit family. Notwithstanding Ms. Cieslak’s view that four weeks would be ideal, I am of the view that a three week vacation will be sufficient.

207Finally, I should note that there was other relief that both parties were seeking in their Orders. I believe that the Orders I have made have addressed all of the other matters in respect of parenting that were raised. I retain jurisdiction to address anything else that may not have been covered by these reasons and the parties may raise those issues in writing as described below.

Issue #4- The Respondent’s Income for Support Purposes

208Section 19 of the Child Support Guidelines SOR/97-175 sets out the fact that a Court has the ability to impute income to a party and the circumstances in which a Court can do so. In this case, the relevant provision is (a), which addresses circumstances in which the spouse is “intentionally under-employed or unemployed.”

209In his original submissions, the Respondent points out that he is a salaried employee with an annual T-4. As a result, the Respondent argues that his income should be based on the actual amounts on Line 150 of his tax return. The Applicant disagrees, and advances two specific arguments that I must consider:

a) That the Respondent voluntarily gave up his job in December of 2018 and improperly accepted a lower paying job after receiving Employment Insurance.

b) The Respondent is earning income from selling items on Facebook Marketplace. The Applicant estimates that this extra income is somewhere between $10,000 and $15,000.

210I will deal with each issue in turn. In doing so, I will apply the test as set out in Drygala v. Pauli (2002) 61 O.R. (3d) 711, 2002 CanLII 41868 (C.A.). That requires me to address three questions:

a) Is a spouse intentionally underemployed or unemployed?

b) If so, is the intentional underemployment or unemployment required by virtue of his reasonable educational needs?

c) If the answer to question number two is negative, what income is appropriately imputed in the circumstances?

211In applying this test, I accept that the onus for establishing an evidentiary basis to impute income rests with the party seeking to impute income. Homsi v. Zaya 2009 ONCA 322. It is noteworthy that the Respondent did not provide a response to either of these arguments in his responding submissions.

212I am of the view that the Respondent should be imputed with an income of $100,000 for the following reasons. First, the evidence that I heard indicates that the Respondent resigned from his job with EasyFinancial in the fall of 2008. The Respondent testified that it was a resignation contract between himself and his employer. I have no details on this “contract” and no documentation that explains why the Respondent left his employment with EasyFinancial. There was some suggestion that there had been some sort of investigation into the Respondent, but none of those details were produced. As a result, the Respondent appears to have given up a job with a significant income and to have done so immediately before the quantum of support was to be reviewed.

213As the Applicant points out, this job came with a salary of approximately $100,000 per year. The Applicant found a new job, but it was a non-managerial job with a salary that was approximately 70 percent of the job that the Respondent had given up. Only very limited documentation to demonstrate a job search on the part of the Respondent was ever produced to show that he was unable to find a job with an income of $100,000. The only thing that the Respondent produced was a list of jobs that he allegedly applied to. There is no detail about those jobs or about what the Respondent did (if anything) to follow up on these alleged applications.

214In my view, the records produced by the Respondent do not demonstrate a sufficient job search. Postings, information about wage rates and correspondence from the job search would be required. The Respondent would have to show that he had actually applied for, and pursued, managerial jobs.

215Finally, the Respondent has both an economics degree and an M.B.A. He is highly educated and should be able to find good work in the financial sector. When all of these factors are taken together, it is easy to infer that the Respondent is underemployed. He is not engaging in any education that would justify his underemployment. It is therefore reasonable to impute income to him in the amount of the job that he left in the fall of 2018, which is $100,000.

216However, I am not persuaded that the Respondent should be imputed with any income from selling merchandise on Facebook. In Ghent v. Busse 2016 ONSC 5282 the Court dealt with a case where one spouse was seeking to have income imputed to the other spouse on the basis of sales of art. In that case, the Court found that the fact that there were sales in the previous year did not justify the imputation of income (see paragraph 30). In this case, there is no real evidentiary record to support this claim.

217There are other problems with the Applicant’s position. First, even if the items were sold for $10,000 to $15,000 over the course of a year, there is no accounting for the costs of the goods that were sold. They would not have come to the Applicant for free. He would have had to purchase them, which means that any net profit that he As a result, the amount of money that the Respondent would have earned is both quite limited and difficult to ascertain.

218For all these reasons, I am not prepared to infer any income to the Respondent for the sale of items on Facebook.

219The Applicant’s income will be imputed at $100,000 until the end of 2024. At that point, his income for support purposes will be based on the higher of $100,000 or his income for the previous year. The Applicant will be obligated to produce his tax returns and Notices of Assessment on an annual basis on or before June 30th.

Issue #5- The Calculation of Child Support From January 1, 2019 to Present

220The parties’ original consent order contained the following provision:

38. The Respondent will pay the Applicant child support for the child of the marriage, namely, Olivia Sophie Lopatowski, born August 1, 2012, in the sum of $476.00 per month, and each month thereafter, based upon the Respondent's income of $52,770.00 per year in accordance with Child Support Guidelines Table amount for 1 child even though the child resides with each party 40% of the time or more. Either party may seek a variation of this amount based on section 9 of the Child Support Guidelines on or after December 1, 2018 without the need to establish a material change in circumstances. The child support amount shall be based on the Respondent's income as it may change.

221The meaning of this provision seems to be that the Applicant was entitled to receive child support based on the Respondent’s whole income until December 1st, 2018 but that the amount of income that the child support was based on was set.

222The Applicant argues that there are considerable arrears owing for child support. There are two problems with this argument. The first problem is that the parties lived under the same roof from January of 2019 through to May of 2021. There was evidence that the Respondent made some contributions to living expenses. There is also some evidence that the Respondent was making payments to the Applicant.

223Although I acknowledge the Applicant’s submission that the Respondent did not provide relevant documents, there was agreement that some amounts were paid by the Respondent in this time period. There was also agreement that he continued to make the support payments to the Applicant. On the records I have, I cannot figure out who made what payments during the time the parties lived together. As a result, there will be no arrears for this time period.

224Second, there is the amount of parenting time that each parent has had with Olivia. The Applicant argues that the Respondent has only had 32% of the parenting time with Olivia and that child support should not be calculated on a set-off basis. The Applicant also suggested the number 37% of the parenting time in her Affidavit. There was no explanation as to how either of these numbers were arrived at, although I suspect that they were based on assuming that all of the time that Olivia was at school was deemed to be time when she was in the Applicant’s care.

225The problem with that argument can be seen in reviewing paragraph 191, which sets out the current parenting schedule. Under that schedule, the Respondent spends six of fourteen nights with Olivia.

226Counsel for the Respondent points out that the shared parenting analysis under section 9 of the Child Support Guidelines can apply when both parents have the child in their care for over 40% of the time. Generally, this is interpreted as being 40% of the time over the course of a year. Gauthier v. Hart, 2011 ONSC 815.

227Key principles in respect of how to apply section 9 are set out in Neritu v Kamoji 2017 ONSC 2617 at para. 82. The most important of those principles are:

a) The party seeking to rely on the 40% threshold having been met has the obligation to prove it. In this case, that is the Respondent.

b) The general weight of authority requires the calculation of the time period on an hourly basis over the course of a year.

c) The time includes time when the child is in the care and control of a parent, even if they are at lessons or at school. The key point is that the parent needs to be responsible for the child.

228In this case, the Order of Fitzpatrick J. states that decision-making authority will be shared. Given the Respondent’s interpretation of the Order, I do not doubt that he views himself as having been responsible for Olivia during his parenting time, including when she was at school. That amount of time is more than 40% no matter how you count it. If it is counted by days, then it is 156 days that Olivia spends with the Respondent. If it is done hourly, and assuming that the party who is picking Olivia up at school has responsibility for her from the beginning of the school day, then it is 3,598 hours that Olivia spends with the Respondent. Either way, it is over 40%.

229The starting point for the calculation is to do it on the basis of set-off, but the Court has the ability to modify that calculation where it would lead to a significant variation in the standard of living experienced by the child. In this case, I do not see a significant variation in Olivia’s standard of living from parent to parent. I also see nothing in the rest of section 9 that would suggest applying anything other than the set-off approach.

230As a result, the calculation should be as follows. The Respondent’s deemed income throughout the relevant time period is $100,000, which means that he owes support in the sum of $910.00 per month before the set-off is applied. The Applicant’s income comes from her Affidavit and the documents that were filed and has varied from year to year. The last year that I have information for was 2022. As a result, I have accepted that income for 2023 and 2024. Given both the amount of litigation that has gone on in this case and the fact that the variation is going to be relatively minor, I do not see any basis to permit additional calculations using the 2023 tax return.

231In Appendix “A”, I have set out the calculation of child support. I understand that the Respondent has continued to pay the amount set out in the original order of $476.00 per month. As a result, he has overpaid support even with the imputation of income. The Applicant owes the Respondent the sum of $2,742.00.

232However, the calculations are always subject to arithmetical error. I will therefore permit brief written submissions if necessary on the calculation issues if there are errors and counsel cannot agree on them. The process for addressing those issues is set out in the Orders in the conclusion.

Issue #6- Section 7 Expenses Going Forward

233In their original Order, the parties had agreed on section 7 expenses as follows:

39. Any future special and extraordinary expenses that the parties agree to in advance will be proportionately shared, after deducing any tax relief. For the period from September 1, 2016 until August 31, 2017, the parties agree that such expenses include before/after school care, summer camp and two activities; such expense shall be shared in proportion to their respective incomes.

234There is a dispute over whether the summer camps, Olivia’s gymnastics and Olivia’s polish school are section 7 expenses. The Applicant argues that they are and that they should be shared proportionate to income. The Respondent argues that they are not section 7 expenses.

235I start with the relevant provisions. Section 7 of the Federal Child Support Guidelines, states:

7 (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

(a) child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

Marginal note: Definition of “extraordinary expenses”

(1.1) For the purposes of paragraphs (1)(d) and (f), the term extraordinary expenses means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.

236This provision was examined in detail by Sherr J. in Clancy v. Hansman, 2013 ONCJ 622. At paragraph 96 and following, Sherr J. sets out a detailed review of the provision. This decision raises four points that I must consider, as follows:

a) The onus is not he parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories in section 7, and that the expenses are reasonable and necessary.

b) The list of expenses under clauses 7(1)(a) to (f) is exhaustive.

c) Expenses for usual or ordinary extracurricular activities for a particular family are included in the table amount of support.

d) Unlike child support, an order for section 7 expenses involves the exercise of judicial discretion.

237In this case, I start with the easiest of the three expenses, which is summer camps. Both the Applicant and the Respondent work full time. In the summertime, Olivia does not attend at school. As a result, I view these camps as child care expenses. In the alternative, I note that they have been recommended for Olivia by Ms. Jonat, her therapist. If I am wrong in my conclusion that they are child care expenses, then they are expenses to address a medical issue. In my view, that makes them extraordinary expenses within the meaning of the definition. The costs of these camps will be beyond what is reasonably covered by the Respondent’s support obligation.

238In addressing the summer camps, I should also address Olivia’s age. She is 12 years old. Counsel for the Respondent relies on the decision in Evans v. Evans 2023 ONSC 3919. In that decision (at para. 138), the Court found that summer camps were no longer a section 7 expense for the child, as he was fourteen and there was no evidence that he required childcare so the parents could work in the summer.

239Counsel for the Respondent also referred to Smith v. Angel 2014 ONSC 6787. In that decision, the Court stated (at para. 34):

[34] Four of the bigger expenses were for camps: $242 for day camp (March 2010); $571.50 for basketball camp (July & August 2011); $745 for Olympia Sports Camp (July 2011); and $774 for Olympia Sports Camp (July of 2012). If the camps were to provide care for the child while Ms. Smith worked, they might have met the ‘child care expense’ category in s. 7(1)(a). However, there was no evidence provided along those lines, and, indeed, the 2009 order had a separate child care amount paid over twelve months. Ms. Smith did not provide evidence or argument as to why these expenses were either necessary in relation to the child’s best interests or reasonable. There is no evidence that she discussed the camp expenses with Mr. Angel and sought his consent. This was contrary to the expectations of the parties in the 2005 consent order. As such, I find that Mr. Angel should not have to bear a portion of those expenses: see Luftspring v. Luftspring, [2004] O.J. No. 1538 (C.A.), Park v. Thompson, 2005 CanLII 14132 (ON CA), [2005] O.J. No. 1695 (Ont.C.A.), and Dover v. Timbers, [2012] O.J. No. 2457 (S.C.J.).

240The case before me is distinguishable from both Evans and Smith on two grounds. First, Olivia is younger than the child in Evans. Second, the summer camps have been recommended for Olivia as a way of working through the problems that her psychotherapist has identified. In my view, the cost of camps are covered by s. 7 and are to be shared in proportion both in arrears and going forward.

241This brings me to the Polish school and gymnastics. Olivia has been involved in these activities since she was 2 years old. The parties’ original agreement envisioned them being paid for jointly by the parties. In that respect, these expenses are also unlike the expenses in Smith. In this case, the parties accepted that these expenses would be paid.

242Further, the expenses have been paid all the way from the time of the final Order of Fitzpatrick J. through to the Respondent bringing his Motion to Change. It was part of the parties’ bargain. As a result, the Applicant suggests that these are section 7 expenses.

243I disagree. As will be seen in the arrears section, I accept the point that the payment of gymnastics was part of the parties’ bargain and need to be paid. However, going forward, the arrangements between the parties are different and the amount of child support being paid is higher. Therefore, I am of the view that, for the 2024-2025 sessions, the payments for gymnastics and Polish school should be borne by the Applicant and paid out of the money that she is being paid on account of child support.

Issue #7- Arrears of Section 7 Expenses

244There was discussion on both sides about providing arrears for section 7 expenses. I will start by observing that the presentation of this evidence made it difficult to determine precisely what was paid. I also note that the marginal utility of pursuing these issues is limited, given that some of them are worth less than $100.00. With those observations, I turn to the merits.

245First, and most importantly, I accept that the payment of gymnastics expenses was part of the agreement that the parties made to resolve all of the financial issues. Providing a retroactive adjustment to this agreement on one issue would put it out of balance. This is particularly true given that the Applicant did not receive any spousal support. As a result, the Respondent should be obligated to pay for the gymnastics expenses until the end of the 2023-2024 time period.

246The Applicant’s evidence was that the Respondent’s proportion of the gymnastics expenses for 2023-2024 was $2,716.30. The problem that I have with this evidence is that the exhibit that I was referred to was a detailed document that outlined many things about gymnastics but, on reading the document, it was not clear to me what amount was actually charged for gymnastics. I accept the amount that the Applicant has outlined, but I do note my concerns with the evidence that was provided.

247In addition, the Respondent should be required to pay for a portion of the camps expenses for 2023. For 2023, the costs of camps that Olivia was enrolled in was $1,328.85. The Respondent’s 2/3 portion of this amount is $885.01. The Respondent says that he has paid arrears to FRO. However, the documentation that he has provided contains receipts for various items (some of which were produced by the Applicant as well) but nothing to show a specific payment. I am of the view that these amounts remain outstanding.

248Finally, I am not going to permit the cell-phone as a section 7 expense. The parties’ agreement required joint approval before items could be treated as section 7 expenses. There was no agreement on the cell-phone, and I am not treating it as a section 7 expense regardless.

249The other expenses that are set out in the Applicant’s Affidavit, including for pizza days, are not section 7 expenses and no additional monies should be paid.

250As a result, the total arrears that I have calculated for section 7 expenses is $3,601.01 payable from the Respondent to the Applicant.

Conclusion and Costs

251For the foregoing reasons, I am ordering as follows:

a) There has been a material change in the needs and circumstances of Olivia, the child of the marriage, since the final order of D. Fitzpatrick J. was made in 2016.

b) The Applicant shall have sole decision-making authority in all matters in respect of Olivia.

c) The Applicant shall provide the Respondent with advance written notice of any major decisions that are made in respect of Olivia and shall consider any issues he may wish to raise in respect of those decisions.

d) Notwithstanding paragraph a, in the event that there is a day-to-day decision to be made when Olivia is in the Respondent’s care, he shall make that decision, subject to the other Orders contained herein. The Respondent will defer to the recommendations of the child’s doctor regarding healthcare issues and the child’s teacher regarding educational issues.

e) The Respondent shall have a full right to obtain information in respect of Olivia’s schooling, her extracurricular activities and her medical conditions.

f) The parenting schedule shall be as follows:

i) Olivia shall spend alternate weekends with the Respondent, and shall be picked up by the Respondent from either school or camp after school on Fridays. She shall be dropped off at the Applicant’s at 7:00 p.m. on Sunday nights.

ii) In the event that there is a P.A. or holiday on the Friday or the Monday then the Respondent’s parenting time shall start on the Thursday after school or end on the Monday at 7:00 p.m., whichever is the case.

iii) On weeks immediately following a weekend where the Respondent has not had parenting time with Olivia, he shall have parenting time with Olivia from Tuesday after school or camp until Wednesday morning.

iv) March break shall be shared equally between the parties. The parent who has Olivia for the first half of March break shall have parenting time from the end of school on Friday until noon on the Wednesday of March break. The other parent will have Olivia from noon on Wednesday of March break to 6:00 p.m. on the last Sunday. The regular parenting schedule will resume at that point.

g) Paragraphs 2, 4, 6, 7, 8, 11(a)-(d), 12-14, 16-25, 27-29, 32 and 34-37 of the Order of Fitzpatrick J. shall remain in force. Paragraphs 40 and subsequent of that Order are also not being changed, but they relate to financial issues that would have arisen on the breakdown of the marriage, and are therefore spent.

h) The arrears of child support are $2,742.00 payable by the Applicant to the Respondent.

i) If there are any issues with the calculations of child support, including whether the monthly payments have been paid, the parties are to consult on these matters and endeavour to resolve them. If they are unable to resolve them, any party challenging my calculations has fourteen (14) calendar days to provide submissions of no more than two (2) single-spaced pages. Any response to a submission on the calculation issues is also limited to two (2) single-spaced pages and must be provided fourteen days thereafter. Submissions must be served, filed and uploaded in accordance with my directives on costs.

j) From August 1st, 2024 forward, the Respondent will pay $910.00 per month on account of child support. That amount will be enforced through the Family Responsibility Office.

k) By June 30th, 2025 and every year thereafter, the Respondent shall provide the Applicant with his Notice of Assessment and his tax return.

l) On every August 1st starting in 2025, the amount of child support that the Respondent is required to pay shall be based on the higher of the imputed income of $100,000 or the Respondent’s actual income.

m) Section 7 expenses shall include summer camps but, going forward, shall exclude both gymnastics and Polish school.

n) Section 7 expenses shall be paid 2/3 by the Respondent and 1/3 by the Applicant.

o) Arrears in section 7 expenses are owing from the Respondent to the Applicant in the sum of $3,601.01.

p) The difference between arrears on child care and arrears on section 7 expenses leaves a net of $859.01 payable by the Respondent to the Applicant. That amount is to be paid within thirty (30) days of the release of these reasons.

252I have made a number of Orders in respect of parenting time. The parties’ requests for relief were complicated by their different positions on the question of whether there was a material change in circumstances in this case. As a result, if either party believes that a parenting issue has not been addressed by these reasons, then the following procedure may be used:

a) Counsel are to discuss the matter with each other and determine whether there is an outstanding issues and, if so, whether it can be addressed by them.

b) If the matter cannot be resolved between counsel, then the counsel who claims that there is an issue may provide a submission of no more than two (2) pages TOTAL to address any outstanding issues. Those submissions are to be provided within fourteen (14) calendar days of the release of these reasons. Submissions are to be served, filed and uploaded in the same manner as the costs submissions.

c) I will then review the correspondence in paragraph (b) and determine whether any further steps are required from the other side. Until I have provided further directions, no correspondence from the other side is required or permitted.

253This brings me to the question of costs. The parties are encouraged to agree on costs, especially since there has been some divided success on this proceeding. Failing agreement, each party claiming costs may serve and file costs submissions of no more than four (4) single-spaced pages, exclusive of bills of costs, caselaw and offers to settle within fourteen (14) days of the date that these reasons are released. The bills of costs are to be particularized in terms of the amount of time spent but they are not to include additional argument.

254Each party is permitted, but not required to, file reply costs submissions. Those submissions are to be no more than two (2) single-spaced pages, exclusive of caselaw. Those submissions are to be provided within seven (7) days thereafter.

255The submissions are to be served, filed and uploaded to CaseLines. However, the parties are also directed to provide my judicial assistant with an electronic copy of the costs submissions. She can be reached at susan.pickles@ontario.ca.

256There are to be no extensions of time for costs submissions, even on consent, without my leave. In the event that costs submissions are not received within the deadlines I have set out above, there shall be no order as to costs.

LEMAY J.

Released: July 9, 2024

APPENDIX “A”- SUPPORT CALCULATION

Year	Applicant’s Income and Support	Respondent’s Income and Support	Set off Amount	Amount Paid	Total Owing by Respondent (Due to Respondent)
2021 (July-December)	$52,918.00 $487.00 per month	$100,000 $910 per month	$423.00 X6= $2,538	$476 X6= $2,856	($324.00)
2022	$55,562.00 $512. Per month	$100,000 $910 per month	$398.00 X12= $4,776	$476 x 12= $5,712	($936.00)
2023	$55,562.00 $512. Per month	$100,000 $910 per month	$398.00 X12= $4,776	$476 x 12= $5,712	($936.00)
2024 (January-July)	$55,562.00 $512. Per month	$100,000 $910 per month	$398.00 X7= $2,786	$476 x 7= $3,332	($546.00)
Total					($2,742.00)

COURT FILE NO.: FS-14-00036938-0004 DATE: 2024 07 09

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MAGDALENA LOPATOWSKI Applicant

• and -

CEZARY LOPATOWSKI Respondent

REASONS FOR JUDGMENT

Footnotes

1. 1At the time of the order, the terms were custody and access. Throughout these reasons, I will use the current terms of decision making authority and parenting time.