COURT FILE NO.: FS-22-077 DATE: 2024/09/24
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
F.-M., K. Applicant – and – M. J. Respondent
Counsel: R. Leckie, for the Applicant Self-represented, for the Respondent
HEARD: September 5, 2023, April 26 and July 12, 2024
REASONS FOR DECISION ON MOTION Wilcox, J.
INTRODUCTION
[1] We are dealing here with a series of motions arising out of a marital separation, beginning with one brought by the applicant in September, 2022, and followed by the respondent’s subsequent motions addressing parenting, venue and contempt. For the reasons that follow, I will not vary the existing temporary order’s parenting arrangements on a temporary basis. The case shall be transferred to the court in Haileybury. There shall be an OCL order. I do not find the Applicant to be in contempt. The case shall be scheduled for a settlement conference combined with a trial management conference.
BACKGROUND
[2] The parties were married on March 19, 2016, and separated on November 16, 2021. There are four children, M.M., A.M., B.M., and C.M. These are referred to as the four children, which grouping does not include, I., who is the applicant mother’s from a previous relationship.
[3] The Application dated May 27, 2022, and served on June 8, 2022, sought a divorce and corollary relief including decision-making responsibility, primary residence subject to the respondent father’s parenting time, the recognition of North Bay as the children’s “habitual residence” and that the children continue to live in the District of Nipissing.
[4] The respondent was initially represented by Mr. Thomson. He advised the applicant’s counsel in July, 2021 that he was having difficulty completing an Answer for various reasons, and requested an extension of time to do so. He then retired in or about September, 2022, apparently before completing it.
[5] The respondent’s Answer/Claim dated December 14, 2022, and served that date opposed the applicant’s requests. He sought relief including the return of the children to the City of Temiskaming Shores, that their residence be within Temiskaming District, and that he have decision-making responsibility and equal parenting time.
[6] At separation in November, 2021, the applicant left the matrimonial home in North Cobalt (part of the city of Temiskaming Shores) and moved to her parents’ place in Sturgeon Falls, Ontario until moving to North Bay, Ontario in July, 2022.
[7] Parenting time for the respondent was subsequently negotiated between the parties through counsel.
The Motions
[8] The applicant brought a Motion Without Notice dated September 8, 2022, on an allegedly urgent basis for an order that the children be returned to her care in North Bay immediately, recognizing North Bay as their habitual residence, and other relief. The Form 14B Motion form indicated that the respondent had been having parenting time in the summer of 2022, that he did not return the children as scheduled and that he indicated that he would not be returning them. The motion was supported by the affidavits dated September 7, 2022, of the applicant, A.-L. T. (the applicant’s sister), T.J M-M. (the respondent’s sister) and B.F. (the applicant’s step-mother) (the September 7 affidavits).
[9] The Motion Without Notice was dealt with in chambers on September 9, 2022, by Boucher J. His endorsement provides a summary of the situation to that date as he understood it. He ordered, among other things, that the four children were to reside with the applicant, who would have decision-making responsibility, and that the respondent’s in-person parenting time was suspended. The motion materials and endorsement were required to be served on the respondent. The matter was made returnable in motions court in North Bay on September 23, 2022, in keeping with the rules regarding motions without notice.
[10] With the assistance of counsel, Mr. Rae, the respondent brought a motion dated September 20, 2022, supported by his affidavit of that date, to be heard at the same time as the return of the applicant’s motion on September 23, 2022. It sought orders for parenting time with the eldest child, M., who was in school, on such dates and times as the court decided on, and week-about with the younger three, who were not yet in school. Additionally, it sought direction as to whether Haileybury (in Temiskaming Shores) or North Bay was the proper venue.
[11] The respondent’s motion materials took issue with those the applicant had used for the motion without notice. Of particular note, the respondent’s affidavit included two emails from Mr. Thomson. One, of December 23, 2021, was to the applicant denying that she had the right to move the children or that the respondent had acquiesced to it. The other email, of July 21, 2022, was addressed to the applicant’s counsel, advising that the respondent opposed her move from North Cobalt to Sturgeon Falls and from there to North Bay, that shared parenting, as the respondent requested, was only practical if the applicant returned to live closer to the respondent, that the ordinary residence was in North Cobalt, and that the applicant’s relocation was not in keeping with the requirements of the Divorce Act nor the Children’s Law Reform Act.
[12] There were two Confirmations filed for the respondent. The first said that the pressing issue was the revisiting and setting aside of Boucher J.’s order. In the second, Mr. Rae sought, among other things, to get off record, having discovered a conflict, and the setting aside of Boucher J.’s order in favour of a new order regarding parenting time and residence. The respondent has been unrepresented ever since.
[13] The applicant sought the same relief as in her Form 14B Motion Form of September 8, 2022.
[14] On September 23, 2022, the matter was dealt with by Ellies J. who, for reasons delivered orally, made only a minor revision to Boucher J.’s order, providing for the respondent to have some virtual parenting time. He adjourned the matter to a case conference to be scheduled.
[15] A case conference was held with Richard J. on February 2, 2023. Her endorsement was largely regarding financial matters. The parenting time ordered by Ellies J. was left in place, with a minor change to the commencement time. Either party was allowed to request a settlement conference.
[16] The self-represented respondent then filed a series of motions dated in February, 2023. They sought orders striking Boucher J.’s order and its subsequent variations, returning the children to the matrimonial home in North Cobalt subject to equal parenting time, giving decision-making responsibility to the respondent, transferring the case to Haileybury, and finding the applicant in contempt of the orders for his parenting time.
[17] On March 17, 2023, Nadeau J. ordered that a long motion date was required and adjourned to the April 21 assignment court to schedule that.
[18] The matter came on for a hearing before me on September 5, 2023. More time was needed, and it continued on April 26 and July 12, 2024. By the time of the decision, about two years will have passed since the interim proceeding began.
[19] In parallel with the interim proceedings regarding parenting, there were interim proceedings with respect to financial issues. Stothart J. held a settlement conference on May 13, 2024, of the property issues, with respect to which there appeared to be some prospect of settlement. She noted in her endorsement that, “there are ongoing motions related to parenting time/decision-making, which in turn affected child support and spousal support. The respondent wishes to pursue his position in those motions. As such, we were not able to have fruitful discussions on those issues. Once the motions are completed, the parties shall schedule a further settlement conference to discuss the remaining issues of parenting time, decision-making, child support and spousal support”.
[20] The irony is that Mr. Rae recognized in the documents that he filed in his brief time on the file around September, 2022, that mobility was the main issue and that mobility issues are notoriously hard to settle. He, therefore, sought directions about bypassing one or both of the case conference and settlement conference steps and proceeding instead to a trial management conference, on the way to a trial and a final resolution of the issue. Instead, we are still dealing with the mobility issue on a temporary basis, a decision on which does not preclude the issue proceeding to trial and being litigated over again in greater detail before the making of a final order.
[21] Since the beginning of the COVID pandemic, it has been difficult to ascertain what the court record is in many cases, including this one. So, at the outset, the documents that the respondent was relying upon were identified. The first Notice of Motion was dated February 20, 2023, and sought the return of the children. The respondent referred to the aforementioned September 7, 2022, affidavits, as well as the affidavit of T.M., the respondent’s father, of February 13, 2023 (misdated December 13, 2023, on its face), and the respondent’s affidavits of February 15 and June 30, 2023. [1] He also provided a factum and a draft order.
ANALYSIS
[22] The issues are:
- Should the temporary order of Boucher J. of September 9, 2022, and the alterations to it in Ellies J.’s order of September 23, 2022, and Richard J.’s endorsement of February 2, 2023, be struck down?
- Should the case be transferred from the court in North Bay to the court in Haileybury?
- Should an OCL order be made?
- Should the applicant be found in contempt?
Issue 1: Should Boucher J.’s temporary order of September 9, 2022, and the amendments to it be set aside?
[23] Boucher J.’s temporary order of September 9, 2022, was made in chambers on the applicant’s motion without notice to the respondent. The respondent now alleges that the order was obtained based on false information provided by the applicant. He also submitted that, when he had the children with him and was not going to return them to the applicant in August 2022, he had given notice by email to the applicant and, as 30 days had subsequently passed, he had followed due process and had a legal right to relocate them back to North Cobalt.
[24] The applicant’s Form 14B Motion Form of September 8, 2022, outlined the situation, stating that she had removed the children from the matrimonial home in November, 2021 allegedly for their safety from the respondent and moved them to Sturgeon Falls and, later, to North Bay where they had been living subject to the respondent’s parenting time. Boucher J. noted that it was supported by the September 7, 2022, affidavits. He listed his findings of fact based on the evidence before him. Notably, he made the following comments:
The applicant commenced these proceedings by way of application that was served upon the respondent on June 18, 2022. He has not filed responding materials, though it appears he was and may still be represented by counsel prior to service of the application.
Motions without notice (including those that take place prior to a case conference) are the exception to the rule for good reason. The Family Law Rules encourage the parties to work together with early court intervention to resolve some or all their issues. The record reveals the respondent chose not to work within the family court process and instead took matters into his own hands when he unilaterally decided to keep the children with him in North Cobalt.
The children’s best interests require they be returned to the applicant without delay. Given the respondent’s self-help efforts and refusal to engage in the family court process, I currently have concerns that if he has alternate weekend parenting time, he could again withhold the children.
[25] I note that Boucher J. did not comment on the merits of the applicant relocating the children upon separation without following the Divorce Act’s requirements.
[26] Boucher J. made the matter returnable in North Bay on September 23, 2022, in keeping with Family Law Rule 14(14) which requires an order made on motion without notice to come back to the court within 14 days or on a date chosen by the court.
[27] Family Law Rule 14(15) requires that an order made on motion without notice shall be served immediately on all parties affected, together with all documents used on the motion, unless the court orders otherwise. This was apparently done as the respondent and his then counsel, Mr. Rae, prepared a Notice of Motion returnable September 23, 2022, together with the respondent’s Affidavit and a Confirmation, all dated September 20, 2022, with reference to them.
[28] The applicant’s Notice of Motion sought an order striking numerous paragraphs from the September 7 affidavits. In addition, it sought:
- An order that the child, M.M., who is currently in grade one resume parenting time with the respondent on such dates and times as to this honourable court may seem just;
- an order that the children, A.M., B.M., and C.M., (who are not yet in school), resume their week-about access schedule commencing Friday, September 23, 2022, with the respondent father, or at such other date as to this honourable court may seem just;
- an order for directions with respect to the proper location for the hearing of the balance of this matter (Haileybury or North Bay) and;
- an order for directions as to whether there is a need for holding a case conference or settlement conference, or whether the matter should bypass one more both of those steps and proceed directly to a trial management conference given that the main issue is a mobility issue and therefore notoriously hard to find middle ground on.
[29] The respondent’s Confirmation specifically sought:
- Directions from the court about how much of the conferencing process is required for this case, which is largely a mobility one and perhaps a cursory mention of admissibility issues in the affidavit’s filed by the applicant and the proper location for future steps in this case, and
- setting aside the terms of Justice Boucher’s order relating to parenting time.
It identified the pressing issue as the revisiting of Justice Boucher’s order on motion without notice as the rules require it to be brought back to court within 14 days.
[30] The respondent’s affidavit of September 20, 2022, responded to various allegations made about him in the September 7 affidavits. However, those allegations were not reflected in Boucher J.’s findings of fact and did not appear to be the basis of his September 9, 2022, order. Therefore, while dealing with these topics might be relevant in another context, even accepting the respondent’s information for the sake of argument, it would not undermine the reasons for Boucher J.’s order. When Ellies J. heard the matter on September 23, 2022, he only changed it to allow the respondent to FaceTime with the children. So, despite the revisiting of Boucher J.’s order being identified as the respondent’s pressing issue, Ellies J. did not see fit to change it substantially.
[31] The respondent submitted that his motion was never heard, such that Boucher J’s order was not revisited. As set out above, the respondent’s motion sought changes to the parenting arrangements in that order, as well as other relief. The respondent’s affidavit material that was before the court then did not detract from the basis for the order. I find, on balance, that Boucher J.’s order was confirmed by Ellies J. Therefore, the parenting aspects of the respondent’s motion were dealt with, as was the issue of direction regarding conferencing when Ellies J. adjourned the motion to a case conference. The issue of the venue appears not to have been addressed.
[32] The respondent’s Notice of Motion of February 20, 2023, again sought to strike down Boucher J.’s order and the subsequent amendments to it, and to revisit the issues of the children’s residence, decision-making responsibility and parenting time. His affidavit in support, dated February 15, 2023, is largely a copy of his affidavit of September 20, 2022, with minor revisions and some additional exhibit material. Again, it does not address the basis of Boucher J.’s order. Nor does the affidavit of T.M. of February 13, 2023.
[33] Courts are reluctant to vary temporary orders with respect to matters affecting children without very good reason. This is well set out in the often quoted remarks of Mitrow J. in Miranda v. Miranda, 2013 ONSC 4704 [2].
A party wishing to disturb an interim status quo or vary an interim order faces a strong onus to produce cogent and compelling evidence to show that the physical, mental and moral welfare of a child would be in danger in maintaining the status quo: McCarthy v. Scheibler, 1999 CarswellOnt 3419 (S.C.J.) at para. 14. Variation of interim custody and access orders will usually only succeed if a child is at risk, or for some other compelling reasons. There is a presumption in favour of the status quo absent compelling reason to change the status quo: Gusikoski v. Gusikoski, 2001 CarswellSask 323 (Sask. C.Q.B.) at para. 10. In Green v. Green, 2004 CarswellOnt 2322 (S.C.J.) at para. 14, Wood J. referred to the well founded reluctance by courts to vary interim orders on an interim basis and stated that an interim order should only be varied on an interim basis where the evidence establishes “clearly and unequivocally” that the present arrangement is not in a child’s best interests. In Greve v. Brighton, 2011 ONSC 4996, 2011 CarswellOnt 8814 (S.C.J.), Ricchetti J., after reviewing various authorities, states at para. 24 that on a motion for an interim order to vary an existing interim order, the court should only do so where the moving party has demonstrated a change in circumstances as a result of which there are compelling reasons to vary the interim order to meet the child’s best interests.
[34] The test is whether there has been a material change in circumstances that compels a change in parenting arrangements in the best interests of the children. [3] [4] The respondent has not produced any information suggesting that there has been a material change in circumstances. Therefore, I will not vary the temporary order of Boucher J. on an interim or temporary basis. This, of course, does not prevent the respondent from addressing issues such as the children’s residence, decision-making responsibility, and parenting time on a final basis at a trial.
Issue 2: Should the case be transferred from North Bay to Haileybury?
[35] As previously stated, the respondent’s Notice of Motion of September 20, 2022, sought directions as to whether this matter should be heard in North Bay (in Nipissing District) or in Haileybury (in Temiskaming District). His Notion of Motion of February 20, 2023, explicitly requested the transfer of the matter from North Bay to Haileybury.
[36] Prior to and at separation, the family resided in North Cobalt, a part of the City of Temiskaming Shores in the District of Temiskaming. Haileybury is also a part of that city and is the court seat for that district. At separation, the applicant moved with the children to Sturgeon Falls and then, later, to North Bay, both in the District of Nipissing of which North Bay is the court seat. The respondent remains in the matrimonial home in North Cobalt. The Application was issued in North Bay and all of the court events within the case so far have been there.
[37] Under the Divorce Act (the Act), a corollary relief proceeding is defined as a proceeding in a court in which either or both former spouses seek a child support order, a spousal support order or a parenting order. The Act states that a court in a province has jurisdiction to hear and determine a corollary relief proceeding if (a) either former spouse is habitually resident in the province at the commencement of the proceeding or (b) both former spouses accept the jurisdiction of the court.
[38] The Family Law Rule 5(1) requires that a case be started, (a) in the municipality where a party resides or (b) if the case deals with decision-making responsibility, parenting time or contact with respect to a child, in the municipality where the child habitually resides….
[39] Both the Divorce Act and the Children’s Law Reform Act have provisions for the procedure to be followed where one party proposes to relocate a child. These provisions were not followed by the Applicant when she moved the children from North Cobalt, nor by the respondent when he purported to return them there. I find that neither move affects the determination of the children’s habitual residence.
[40] The applicant’s affidavit evidence is that, at separation, she had no option but to go to her parents’ home in Sturgeon Falls. That was because the respondent would not leave the matrimonial home to her and the children, she could not afford other accommodation in the area, and she had no family or supports in North Cobalt. Later, she was able to find accommodation in North Bay that allegedly met the children’s needs.
[41] The respondent, she said, did not object to her moving to Sturgeon Falls with the children. Copies of messages between the parties in her affidavit show the respondent saying that he would not be calling or visiting again and he would say goodbye to the children and have a clean break. However, the applicant states that the respondent began having negotiated parenting time in January, 2022, which went on until he withheld the children in August, 2022.
[42] The respondent’s affidavits of September 20, 2022 and February 15, 2023, say that the applicant removed the children without his consent and that he wants them returned. He had retained counsel, Mr. Thomson, in December, 2021. Correspondence from counsel to the applicant or her counsel found in exhibits to the affidavits, beginning in December 2021, indicate explicitly that the respondent did not agree with or acquiesce to the applicant’s moving the children from the matrimonial home to Sturgeon Falls or North Bay. However, Mr. Thomson was still working on an Answer when he requested of the applicant’s counsel an extension of time to do so in a letter of June 21, 2022. In that same letter, he re-stated the respondent’s objection to the applicant’s moves.
[43] In dealing with the legal issues arising from the separation, the issues of decision-making responsibility and parenting time would have to be resolved even if by consent. Therefore, the respondent’s initial indication that he would not pursue a relationship with the children is of no moment.
[44] In the circumstances, I see no reason that r. 5(1) should not be followed. The habitual residence of the children at separation was in North Cobalt in the District of Temiskaming. The applicant mother removed them to Sturgeon Falls and North Bay in the District of Nipissing for the reasons indicated. Soon thereafter, the respondent’s opposition to the move was communicated. The earlier indication that he would not seek a relationship with the children, even if it had not been soon thereafter abandoned, does not change this. The habitual residence for court purposes has not changed. Therefore, I order the transfer of the case to the court in Haileybury.
[45] It is important to distinguish the decision about where the case is to be heard from a decision about where the children are to reside. As previously indicated, I will not change Boucher J.’s temporary order with respect to the children’s residence on an interim basis. This decision is only about where the case is to be heard. The ultimate decision about where the children shall reside will be made at a future date.
Should an OCL order be made?
[46] The Application sought an order for the involvement of the Office of the Children’s Lawyer (OCL). The Answer stated that the respondent did not oppose it, and his motion documents requested it.
[47] To save time, as this matter has had considerable delay, I will make an OCL order now despite the change in venue. The “Judge’s Comments” section of the standard form order shall state “See Schedule A, attached”. Schedule A will be attached to these reasons.
Issue 4: Should the applicant be found in contempt?
[48] Turning to the respondent’s Notice of Contempt Motion of February 17, 2023, he alleged that the applicant was in contempt for failing to allow him to have FaceTime parenting time with the children on occasions between December 13, 2022, and February 11, 2023, as ordered. He referred to his affidavit of March 24, 2023, including its exhibits containing his notes and emails, in support.
[49] The temporary order of Boucher J. of September 9, 2022, provided for the respondent to have reasonable virtual parenting time, by telephone or video, with the children. This was varied by Ellies J. on September 23, 2022, to provide that the respondent would have Facetime parenting time with the four children on Tuesdays, Thursdays and Saturdays at 5:00 p.m., for as long as the children wish, to a maximum of one hour. In addition, the respondent would have FaceTime parenting time at the same time and on the same terms on the birthdays of each child, regardless of what day of the week that falls on. The start time was varied from 5:00 p.m. to 6:00 p.m. by Richard J. at the case conference on February 2, 2023.
[50] The respondent’s affidavit includes his notes of his multiple contacts with the children from December, 2022 to February, 2023. From these, there are three that he complained about and used to base his allegations of contempt. Included in the affidavit are copies of his email conversations with the applicant about these.
[51] The first was December 31, 2022. He says that FaceTime lasted only three minutes and he did not get to see two of the children. The oldest, M., stayed on for two minutes before leaving to play. A. hung up a minute later. The respondent contacted the applicant who said that she cannot make them sit and talk to the respondent, that C. was sleeping, and that B. was playing. She expressed an understanding of his frustration but stated that she was following the order properly.
[52] The next was January 3, 2023. The respondent says that he spoke with M. and B. and at least saw A. but did not see C. in a 34-minute session. The applicant advised that C. was napping.
[53] Then, on February 11, 2023, the respondent says, he did not get to see A. and B. in an 18-minute session. He spoke with M. who said that A. and B. were at their aunt’s. Apparently, C. was also present. M. ended the call to go and play.
[54] In the subsequent email conversation, the applicant responded to the respondent’s complaint by explaining that M. and C. enjoyed the call, but A. and B. were unavailable because they were not home, but would be present for the call in two days time.
[55] The law of contempt was summarized in Neshkiwe v. Hare, 2020 ONCJ 149 [5] at paras. 416-422 as follows:
[416] Rule 31 of the Family Law Rules is the rule that provides for civil contempt in a family law case.
[417] As the Court of Appeal held at paragraph of Chong v. Donnelly, 2019 ONCA 799, three elements must be proven beyond a reasonable doubt in order for the Court to make a finding of contempt in a civil case:
(a) The order alleged to have been breached must state clearly and unequivocally what should and should not be done; (b) The party alleged to have breached the order must have actual knowledge of it; and (c) The party allegedly in breach must have intentionally done the act that the order prohibits, or intentionally failed to do the act that the order compels.
[418] In Janowski v. Zebrowski, 2019 ONSC 4046 at paragraph 24, Trimble J. summarized the above, and certain other principles concerning the law of civil contempt. I highlight that an additional principle, taken from Trimble J.’s summary of the law, is where a parent does not comply with the order, he or she must have “clear and compelling reasons to legally justify” that violation of the order.
[419] The example that Trimble J. cites in Janowski v. Zebrowski is where there is “admissible evidence” of a “reasonably held belief”, such as that there will be “imminent harm” to the children. However, that belief must be “validly held” and there must be “objective justification” for the breach.
[420] The Court should also consider the best interests of the children when a finding of contempt is sought. For example, in Ruffolo v. David, 2019 ONCA 385 the motions judge made findings of contempt based on two instances of alleged access denials, and one instance of a parent failing to provide the children’s summer activity schedule. See paragraph 4.
[421] The Court of Appeal reversed the findings of contempt. I note that it had some concerns about the record before the motions judge, the brevity of the reasons and whether all of the contempt findings had been made out. But the Court of Appeal also stated that the best interests of the children also had to be the paramount consideration in reversing the court below. I will come back to this principle.
[422] And finally, even if the elements of contempt are made out, the use of the contempt power is still discretionary. It is not to be resorted to, routinely. It should be exercised “cautiously and with great restraint” as “an enforcement power of last rather than first resort”. Alternatives may include an admonishment by the Court. See Chong v. Donnelly paragraphs 9 and 10. I would add that another alternative may be an order for costs.
[56] I would not find the applicant in contempt in the circumstances. It appears from the Application and other documents that she understands and even promotes parenting time, and that it had taken place frequently since separation, even without a court order. Ellies J.’s order of September 23, 2022, provided that the FaceTime parenting time at the scheduled times would be for as long as the children wished, up to an hour. As of December 31, 2022, the children ranged in age between one and six years old. Their interest in and attention spans for FaceTime is at least questionable. Within the order’s terms, they could choose not to participate, or not to participate for long. The youngest, C., might well require a nap at the time. It is not clear that the applicant has failed to do as required. Even if she had on the occasions in question, I would simply admonish her to make her best efforts to follow the order.
Wilcox, J. Released: September 24, 2024
SCHEDULE A
“Judge’s Comments” for OCL Order
[57] The parties separated in November, 2021. They have four children, ages three to seven. The applicant has a child, I., age 11, from a previous relationship. She indicates that the respondent has been involved in I.’s life since he was a young age, but the respondent’s interest in the children appears to be limited to his four natural children without reference to their older half sibling. The case involves competing claims for primary residence, decision-making responsibility and parenting time. The applicant’s credible allegations (supported by statements from the respondent’s sisters) were that the respondent’s family was involved in a religious cult which negatively affects his parenting ability. This included incest, which the respondent’s father was convicted of and which the respondent has admitted to. It also involves home schooling, which the father promotes despite his obvious literacy challenges, contributing to social isolation. The respondent says that the applicant’s grandparents, who the children spend time with, are on the Sex Offender Registry. The CAS has been involved at times. In all the circumstances, the court greatly needs the OCL’s services to assist in ascertaining the best interests of these young children.
Footnotes
[1] The respondent later filed his affidavit of March 14, 2024, which he said consolidated his previous affidavits, but the court declined to use it as it was late and unnecessary.
[2] 2013 ONSC 4704 (Ontario S.C.J.) at para. 26.
[3] Chyher v. Al Jaboury, 2021 ONSC 4358
[4] The federal Divorce Act and the provincial Children’s Law Reform Act (CLRA) contain similar, although not identical, provisions regarding parenting. Which act applies depends on the marital situation. So, the case law on point might refer to one act or to the other, accordingly. It has been found that the “legal principles that have evolved respecting variation of parenting orders in the context of divorce apply equally to parenting order variation proceedings under the CLRA”. J.T. v. E.J., 2022 ONSC 4956, para. 86. Likewise, cases under the CLRA involving those principles would apply, as here, to cases of marriage and divorce.