T.T.U. v. A.M.U., 2024 ONSC 677

COURT FILE NO.: 532-14 DATE: 2024-02-01

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

T.T.U. Applicant – and – A.M.U. Respondent E. Grinbergs O.C.L.

Self-Represented Self-Represented Counsel, Office of the Children’s Lawyer

HEARD: October 10, 11, 12, 13, 2023

JUDGMENT

THE HONOURABLE MADAM JUSTICE L. BALE

Overview

[1] This is the Respondent mother’s motion to change the following Final Orders of the court:

a. Final Order – Justice R. Mazza dated February 11, 2015 re: joint custody;

b. Final Order – Justice R. Lococo dated December 19, 2019 re: parenting time; and

c. Final Order – Justice W. MacPherson dated November 9, 2020 re: child support.

[2] At the centre of this litigation are the parties’ two children: E.U. (age 14) and M.U. (age 11).

Position of the Parties

[3] The Respondent mother argues that the 2015 Final Order for joint custody (now decision-making authority) is unworkable. Conflict and lack of communication between the parties has rendered any cooperation in making decisions in the best interests of the subject-children impossible, and has been detrimental to their care. With respect to parenting time, significant contact issues between the father and the children have arisen and have resulted in the children refusing to follow the court-ordered parenting schedule. The mother has suggested engaging a therapist and/or parenting coordinator to assist with these issues, however the father has declined all such suggestions.

[4] The Applicant father does not agree that a change to the joint decision-making regime is in the best interests of the children. He asserts that all of the conflict between the parties, and all of the contact issues which have arisen between himself and the children, are as a result of the Respondent mother’s efforts to marginalize him from the lives of the children. He seeks enforcement of the existing order, with police intervention if necessary. He advises the court that he cannot be forced into therapy.

[5] The Office of the Children’s Lawyer (“OCL”) takes no position with respect to decision-making responsibility. With respect to the child E.U., the OCL requests an order that parenting time be in the discretion of the child. With respect to the child M.U., the OCL advocates for daytime visits only, with additional time as agreed between the parties and in accordance with the views and preferences of the child. The OCL is not supportive of a holiday vacation schedule which places M.U. in the care of the father for overnight periods.

Background

Relationship History

[6] The parties commenced cohabitation in November 2005. Their first child, E.U., was born in 2009. The parties were married on October 1, 2011. Their second child, M.U., was born in 2012. The parties separated on February 11, 2014.

[7] Neither party has ever claimed a Divorce. Accordingly, they remain married and the governing legislation relating to parenting and support issues are the Children’s Law Reform Act and Family Law Act.

History of Litigation

[8] This court file was commenced in 2014. The court is advised that, since that time, there have been close to 100 court attendances and 300 court documents filed.

[9] It would be impossible to provide a comprehensive review of all of the steps of this litigation. However, the following general summary highlights the more significant events, pertinent to this Motion to Change proceeding:

1. Final Order of the Honourable Mr. Justice R. Mazza dated February 11, 2015, made on consent with respect to custody, access, incidents of parenting, child support, s. 7 expenses, health benefits coverage, and life insurance.

2. Temporary Order of the Honourable Mme. Justice W. MacPherson dated March 9, 2017, made on motion by the Respondent mother, compelling the Applicant father to immediately sign the children’s passport applications and consents to travel.

3. Final Order of the Honourable Mr. Justice R.A. Lococo dated December 19, 2019 which varied the regular and holiday parenting schedule, incidents of parenting, child support, s. 7 expenses, and medical benefits coverage. Oral reasons were given.

4. Final Order of the Honourable Mme. Justice W. MacPherson dated December 11, 2019 which varied the payment of child support and s. 7 expenses, on consent.

5. Temporary Order of the Honourable Mme. Justice W. MacPherson dated February 27, 2020, made on motion by the Respondent mother, dispensing with the Applicant father’s consent to permit M.U. to attend at a dental specialist to have two teeth removed under Nitrous Oxide treatment as recommended by her dentist.

6. Final Order of the Honourable Mme. Justice W. MacPherson dated November 9, 2020, which varied the payment of child support and s. 7 expenses on consent.

7. Final Order of the Honourable Mr. Justice D. Edwards dated October 13, 2021, dismissing the Respondent’s Contempt Motion with written reasons.

8. Temporary Order of the Honourable Mme. Justice W. MacPherson dated April 1, 2022, adjusting child support on consent.

9. Temporary Order of the Honourable Mr. Justice J. Henderson dated March 30, 2023, adjusting the parenting schedule.

10. Temporary Order of the Honourable Mme. Justice W. MacPherson dated May 20, 2022, made on motion by the Respondent mother, compelling the Applicant father to sign and return the children’s passport renewals.

11. Temporary Order of the Honourable Mme. Justice L. Standryk dated September 8, 2022, made on motion by the Respondent mother, dispensing with the Applicant father’s consent for M.U. to attend therapy.

Law and Analysis

Motion to Change

[10] A court shall not make an Order that varies a parenting order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child: Children’s Law Reform Act, R.S.O. 1990, c. C.12, as am., s. 29.

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

a. The operative order of the court is presumptively correct;

b. A variation proceeding is not an appeal or trial de novo;

c. Before considering the merits of an application for variation, the court must be satisfied that there has been a material change in condition, means, needs or other circumstances of the child, since the last parenting order was made;

d. Change alone is not enough. The change must have altered the child’s needs or the ability of the parents to meet those needs in a fundamental way; and

e. The change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order: paras 10-14.

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

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

[13] With respect to parenting, it is apparent to this court the Respondent mother has easily met the burden of establishing that a material in change in circumstances has occurred, which has impacted the needs and circumstances of both children and the parent’s ability to meet their needs. In particular:

a. The parties are not able to make joint decisions in the best interests of the children. By way of obvious example, a motion was needed in 2017 to obtain passports for the children. A motion was needed again in 2022 for the renewal of those passports. It is unfathomable that the parties could not cooperate and obtain consensus on this simplest of issues. Twice. Perhaps more importantly however, it is evident that the parties’ inability to coparent has resulted in delayed medical and dental treatment (also requiring court intervention) and therapeutic care for the children (again, requiring court intervention). The parties’ inability to make decisions together in the best interests of the children has now risen to a level where it interferes with the children’s physical and emotional well-being. The current situation cannot stand.

b. The parenting schedule ordered by Justice Lococo in 2018 is not being followed. Very serious contact issues have arisen between the father and E.U.. Concerning contact issues have also arisen between the father and M.U. An order for simple enforcement of the existing schedule is not the answer. Police intervention is not a viable long-term solution. Modification to the operative order is necessary in the best interests of the children.

[14] The needs and circumstances of the children and the parties’ abilities to meet those needs have changed since the operative Final Orders were made in 2015 and 2019. These changes have had a material and detrimental impact upon the children. The significant deterioration of the parties’ coparenting relationship, and the deterioration of each child’s relationship with the Applicant father were not fully anticipated at the time that the two orders were made. Step one of the two-part test has been met, and the court must embark upon a new best interests inquiry.

Best Interests Considerations

[15] If the threshold ‘material change’ test is met, the court must then assess the matter afresh in consideration of the current best interests of the child. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of either parent, or in favour of maintaining the existing timesharing arrangements. The best interests test is the only test to be applied. The court must ascertain the child's best interests from the perspective of the child rather than that of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child: Gordon v. Goertz; Young v. Young, K.M. v. J. R., 2022 ONSC 111 at para. 71, Persaud v. Garcia-Persaud, 2009 ONCA 782.

[16] The ‘best interests’ considerations that a court must apply are contained within section 24 of the Children’s Law Reform Act. Specifically:

Best interests of the child

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

Primary consideration

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

Factors

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

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

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

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

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

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

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

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

Factors relating to family violence

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

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor.

Past conduct

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

Allocation of parenting time

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

Application to related orders

(7) This section applies with respect to interim parenting orders and contact orders, and to variations of parenting orders and contact orders or interim parenting orders and contact orders.

Decision-Making Responsibility

[17] It is generally inappropriate to award joint decision-making responsibility between parents where there is an absence of cooperation, communication and respect between them: see for example Kaplanis v. Kaplanis, Roy v. Roy, Lawson v. Lawson, at para. 15, Giri v. Wentges, 2009 ONCA 606 at para. 10, B.V. v. P.V., 2012 ONCA 262, Berman v. Berman, 2017 ONCA 905 at para. 5, Reeves v. Bland, 2018 ONCA 263, paras. 9-15.

[18] However, there has also been a notable trend in recent years to order a joint decision-making regime in circumstances where such an order is required to safeguard against a power imbalance and marginalizing behaviours: Rigillo v. Rigillo, 2019 ONCA 548 at para. 12, Khairzad v. Macfarlane, 2015 ONSC 7148 at para. 21, McBennett v. Davis, 2021 ONSC 3610 at para. 94. Such circumstances have included scenarios wherein one parent attempts to limit the other’s relationship with the child, or to prevent access to information, or appears to be primarily responsible for the conflict between the parties: See also Levesque v. Windsor, 2020 ONSC 5902 (Div. Ct.) at para. 22, and Y.Y. v. L.F., 2019 ONSC 1718 (Div. Ct.).

[19] Decision-making with respect to E.U. and M.U. is presently governed by paragraph 1 of the Final Order of the Honourable Mr. Justice R. Mazza dated February 11, 2015 which provides the parties with joint custody. Provisions relating to consultation, the right to receive information, scheduling medical appointments, etc. are contained within paragraphs 4, 5, 6, 7, 8, 9, 10, and 11 of the same order. An additional term, with respect to notification of children’s activities, was added by the Honourable Mr. Justice R. Lococo on December 19, 2018 in a subsequent proceeding.

[20] A cursory review of the historic court endorsements in this file reflects the following:

a. This case has been recognized as a high conflict family court file for almost ten years;

b. The parties have been repeatedly warned by presiding judges, and professionals involved in the care of the children, that E.U. and M.U. are at significant risk of psychological and emotional harm arising from the high level of conflict between their parents; and

c. Parenting coordination and parental coaching services would be a far preferable form of alternative dispute resolution for this family than the court process.

[21] The evidence presented at this trial satisfies the court that the parties’ coparenting relationship has deteriorated to the point that important decisions that need to be made on behalf of the children have been, at best - delayed, and at other times - completely paralyzed. Motions in court have been required in matters which should not have required more than a mature ten-minute discussion. Children need passports. Children need medical and dental care. These children need therapy. Consensus cannot be reached. One party needs to be empowered to make decisions to ensure that the children’s needs can be met in a timely manner. The best interests of the children alone must govern which parent should be granted these rights and responsibilities.

A. Medical and Dental Care

[22] At trial the Respondent mother testified and produced documentary evidence (i.e. emails between the parties) in support of her position that she has always been responsible for communicating with the children’s medical and dental care providers and scheduling their appointments. She has kept the father informed in writing of illnesses and medical procedures in polite, informative, and timely fashion. Notwithstanding her efforts to communicate with and consult with the father, their ability to coparent has deteriorated to the point where the children’s medical and dental (including orthodontic) needs are being negatively impacted.

[23] The following email dialogue regarding M.U.’s dental treatment (i.e. tooth extractions) is demonstrative of the types of issues that have arisen:

May 12, 2022 – 11:15 a.m. Email from mother to father: “It’s best that you call them to clarify and send what you need.”

May 12, 2022 – 11:19 a.m. Email from father to mother: “A.U., If you are going to be giving out my benefit card and information you will need to be responsible for the communication with them as is laid out in our court order. If I need to contact them and deal with all this I will be forced to delay the process while I contact Dr. Pershad, then Dr. Jansen, then the clinic where they will be pulling her teeth. Given my schedule this may take a couple weeks. Let me know if you will be getting this information or if I need to get all the information. T.U.”

May 12, 2022 – 12:15 p.m. Email from father to mother: “A.U., As it’s been almost an hour and in typical fashion you choose not to respond with solutions or answers you are leaving me no choice but to force your hand. If you don’t respond by 130 pm today, I will contact all the providers and tell them that my consent isn’t given and that they will have to stop services until I can better educate myself on the whole process. Please provide me with your plan to provide me with your plan, and the information that I have requested regarding this. T.U.”

May 13, 2022 – 4:35 p.m. Email from father to mother: “A.U., As you have failed to provide me with the information I have requested and/or your plan on dealing with the issues you have now forced me to move forward with finding out all the information that you have failed to provide. The first step is contact the specialist that M.U. has an appointment with on Saturday and cancelling such appointment. I will be attaching our court order and pointing out that my consent is required prior to any services being provided. Based on your actions and failure to provide the information my consent isn’t being provided at this time. T.U.”

May 13, 2022 – 5:19 p.m. Email from father to mother: “A.U., I have just emailed the dentist and explained the situation and advised that my consent for treatment on Saturday hasn’t been given. T.U.”.

[24] These circumstances required a motion and court intervention to permit M.U.’s dental surgery. The mother was successful.

[25] The mother also advises that if the father is asked to take M.U. to an appointment on his parenting time (e.g. an orthodontic appointment for a wire poking her mouth and causing her pain) he demands make-up time for the inconvenience. The mother then books the appointment for her own parenting time, and the father objects on the basis of his availability. For example, in June 2023, the mother booked a regular orthodontic appointment for M.U. over the telephone while driving in her car. The office-generated appointment notice was sent to both parties (i.e. prior to the mother notifying the father). The father immediately emailed the mother that because he had not been consulted in the booking, “…this appointment will be completely at your expense. There will be no cost that I am willing or going to pay with this regard. Also, I am going to attend this appointment and it will still need my consent moving forward.”

[26] The situation does not appear to have improved by September 2023:

September 20, 2023 at 4:07 p.m. Email from mother to father: “M.U. had her three-week appointment and the tech said they will add the brackets on three appointments from now. We’ll need to sign into another contract for the whole braces to be put on. Her k9 are moving in well. No concerns otherwise. A”.

September 21, 2023 at 1:58 a.m. Email from father to mother: “Any further payments will be at your expense unless I receive an appointment with Dr. Pershad to discuss this with him. Until then I will not accept any responsibility for any contract you sign. Unless you file a motion it will fall on you too pay for any work done moving forward.”

[27] Given the level of conflict between the parties, it is the mother’s preference that if either party requires further information relating to the children’s medical care or treatment that they do so separately.

B. Therapy

[28] With respect to therapy for the children the mother advised the court that the father has used his joint-custody designation as a basis upon which to create roadblocks preventing treatment and support of the children’s mental and emotional health.

[29] In November 2022 E.U. was diagnosed with depression by his family physician and takes medication in relation to same. Counselling has been prescribed for both children by their Physician.

[30] In September 2022 the mother was compelled to bring a motion relating to the children’s mental health treatment. She was successful. Specifically, on September 8, 2022, Justice Standryk made an order:

a. Dispensing with the father’s consent for M.U. to attend therapy at the Play Clinic;

b. Costs for therapy for both children to be shared between the parties as a s. 7 expense.

[31] The mother also testified to the following information, with reference to email communications between the parties where applicable:

a. The father has expressly and repeatedly indicated that he will “not be covering any cost over and above what [his] benefits would cover”.

b. The mother has been mindful of the cost of therapy, sourcing less-expensive options and advocating for discounted prices where possible.

c. The father has registered complaints to the professional College of at least one of the children’s therapists.

d. The father has unnecessarily drawn the children’s professionals into family conflict by cc’ing them on personal communications between the parties.

e. The father has been invited to attend the children’s therapy, speak to their therapists, transport the children to/from therapy, etc. and has steadfastly refused.

f. The father delayed his obligation to contribute to the cost of the children’s therapy on the premise that the Order had not been issued and entered.

[32] E.U. has been attending therapy since April 2022, when he turned 13 years of age and was able to consent to his own treatment. M.U. has been attending therapy since September 2022, when the court dispensed with the father’s consent for same.

[33] The children’s therapist, Ms. Hiebert, testified at trial. She is an experienced clinical social worker, with specialized experience in children’s mental health and anxiety. She has a Master’s Degree of Social Work. The father declined the opportunity to engage in discussions with the therapist regarding the goals of the children’s therapy. The father has declined invitations to engage in a joint therapeutic session with M.U. Both children report enjoying their therapy and deriving positive benefits from their sessions.

C. Education

[34] E.U. is now in grade 9. M.U. is in grade 6. Both parties are on the school email communication list and receive the same general information regarding school events, activities, policies, etc. Notwithstanding E.U.’s preference that his father not attend his grade 8 graduation, the father was able to independently secure tickets from the school and attend.

[35] The mother advises the court that the children are A students. They have healthy friendships and relationships in all other spheres of their life.

D. Extracurricular Activities

[36] The mother testified that she has always been responsible for enrolling the children in extracurricular activities. She considers the views of the children, provides particulars to the father, and requests his consent.

[37] Again, the mother filed a collection of email exchanges at trial in support of her efforts to navigate this topic:

March 2, 2023 – 4:25 p.m. Email from father to mother: “You can sign her up for this [summer] camp if you wish. There will be no extra money from me for this. The money will come from you as I am contributing monthly for this sort of thing. T.U.”

May 31, 2023 – 8:36 p.m. Email from mother to father: “Would you be agreeable to M.U. doing soccer Wednesday nights?”

May 31, 2023 – 9:17 p.m. Email from father to mother: “I am okay with M.U. doing soccer on Wednesday nights on a couple conditions:

1. We come to some kind of agreement on make-up time on another night.

2. That you start making my access to M.U. in line with the current order that is in place.

3. That phone calls start happening right away.

4. That you write up a change order specifying the changes to the changes that you propose for changing Wednesday night access and also make me aware of her game times and any changes to them.

5. Along with the understanding that I will not be contributing any money as part of our current order addresses that issue already, so needing to address this further is unnecessary

6. Anything else we can discuss later.

[38] As a result, M.U. did not play soccer that summer. In July 2023 the father stated his objection to M.U. attending a day camp at Brock University and accused the mother of not notifying him of same, calling her conduct unacceptable and bullying. He threatened to address the issue in court. The mother reminded him that he had in fact given written consent for the day camp, as per the March 2, 2023 exchange noted above. He did not apologize for his error. On another occasion the father objected to M.U.’s participation in a martial arts class with a friend, as he felt that another form of martial arts would be more appropriate. In July 2023 the mother requested that E.U. be permitted to continue his music lessons through the summer months. The father replied that his consent was granted but that “there will be no funds from me to pay the cost”.

[39] The court is advised that the children only participate in one activity at a time. At the time of trial E.U. was taking electric guitar lessons, and M.U. was playing organized volleyball.

Discussion and Conclusions

[40] It is evident to the court that the mother has been primarily responsible for organizing and implementing the necessary steps to attend to the children’s major issues. She is presently more attuned to the children’s needs and their perspectives than the father. The children spend the majority of their time in the mother’s care. The mother has demonstrated that she is capable of proving stable and consistent care for the children in relation to their medical, dental, educational, emotional, and social needs.

[41] I have conducted a detailed review of the communications between the parties. I find that the Respondent mother is generally polite, informative, and child-focused in her dialogue with the father. Although the father is correct that some written communications between the parties are amicable, I find that there are far too many instances where the father’s communications are angry, obstructionist, accusatory, demanding, or simply too nonsensical to permit mature dialogue focused on the best interests of the children.

[42] I find that the father has abused the privilege of the existing joint-custodial designation. He has used the existing consultation and consent provisions to interfere with the timely receipt of services recommended for the children by their third-party care professionals. It is clear that the elements of the operative orders of the court which require consensus and authorization must be eliminated in order for the children’s needs to be met more effectively in the future.

[43] The mother is the obvious choice to assume the sole decision-making authority that is required in this case. She has demonstrated that she can be entrusted with the task of meeting the children’s ongoing needs, while at the same time keeping the father reasonably informed as to major issues in the children’s lives.

[44] The father will continue to have the right to ask for and receive information from the mother and other third-party care providers involved with the children, subject of course to any applicable privacy laws, etc. However, I find that it is no longer in the best interests of the children that (a) his consent for care, treatment, and services be required, or that (b) he be permitted to attend with the mother and children at medical appointments unless expressly invited.

[45] The existing terms of the Final Orders of Justice Mazza, dated February 11, 2015, and Justice Lococo, dated December 19, 2018, as they relate to decision-making and incidents of decision-making shall be terminated and replaced with the provisions contained within the Order section below.

Parenting Time

[46] Section 24(6) of the CLRA requires to the court to give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. This provision however does not create a presumption of maximum time or equal time. As summarized by Chappel J. in A.E. v. A.E., 2021 ONSC 8189 at para 84: The courts have clearly emphasized over the years that while maximizing contact between children and parents is important, it is not an unbridled objective. If the evidence indicates that increased parenting time with a parent would not in fact support the child’s best interests, it should not be ordered: (Young v. Young, [1993] 4 S.C.R. 3 (S.C.C.), at para. 40; Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.), at p. 49; B.V. v. P.V., 2012 ONCA 262 (C.A.), at para. 15; Rigillo v. Rigillo, 2019 ONCA 548 (C.A.), at para. 4, J.F.T. v. J.S.V., 2021 ONCJ 302 at para. 25.

A. Views of the Children

[47] Article 12 of the Convention on the Rights of the Child requires parties to ensure that children who are capable of forming their own views must be given the right to express those views in matters which affect them and that those views must be given due weight in accordance with their age and maturity: Convention on the Rights of the Child, 20 November 1989, UNTS, vol. 1577, Article 12 (entered into force 2 September 1990). The degree to which the court will follow the wishes of the child will depend upon the age and level of maturity of the child and will be subject to the judge’s discretion as she seeks to determine the child’s best interests: R. G. v. K.G., 2017 ONCA 108 at para. 67.

[48] The Office of the Children’s Lawyer provided representation to the children in this case, and provided evidence to the court from an experienced clinician, Ms. Polgar. The OCL Clinician testified to the children’s experiences and views and preferences.

[49] With respect to E.U., the OCL provided the following information:

a. Ms. Polgar met with E.U. on six occasions between October 19, 2022 and October 11, 2023.

b. E.U. described to the clinician that:

i. He resides with his mother and little sister.

ii. He used to spend time with his father on alternating weekends and Wednesdays, but began cutting back on time, initially starting on Wednesdays, and eventually stopped attending his father’s home altogether.

iii. He has not seen his father since March 2020.

c. E.U. provided various reasons for the deterioration of his relationship with his father. He cited such examples and rationale as:

i. his father insisted he review family court papers;

ii. his father would not let him reach out to his mother while in his care;

iii. his father took away his phone; and

iv. his father talks at him without listening, and speaks in condescending fashion.

d. E.U. explained that he does not want to see his father until his trust in him has been restored. E.U. advised that he would require an apology from his father, respect for his boundaries, and a belief that his father had changed before resuming a relationship with him. However, E.U. described his father as becoming ‘fixated’ on things, and expressed doubt as to his father’s potential for growth.

e. His father does not have his cell phone number, and he likes it that way. E.U. is admittedly non-responsive to his father’s efforts to reach out to him (e.g. Christmas and Birthday cards, communications, etc.).

f. E.U. recalled a few events of significance:

i. On one occasion he recalled that his father had been sitting outside the home, and his mother put a blanket over the window. His mother and M.U. were peeking through the blanket to see if he was still there.

ii. He advised that his mother attempted to advocate for his father not to attend his grade 8 graduation ceremony, as per E.U.’s wishes, but this could not be prevented. E.U. did not see him at the ceremony and did not acknowledge the graduation money he was sent.

iii. E.U. observed an altercation between his mother, father, and father’s partner following M.U.’s music recital, where his father wanted to give M.U. a birthday cake and a card. He described that his father’s partner ‘swerved her car behind us to block us in’. E.U. stayed out of the altercation.

iv. In the fall of 2023 E.U. intervened in a situation of conflict at a parenting exchange. His mother and M.U. “were bawling” in the kitchen. E.U. went outside to ask his father to leave and to advise that M.U. would not be coming.

g. E.U. spoke of being ‘pretty disappointed’ in his parents’ coparenting relationship.

h. E.U. was clear in all of his interviews that he does not want his father to initiate contact with him and does not want to follow a fixed parenting schedule.

i. When presented with the idea of police enforcement of his parenting time, E.U. was visibly taken aback.

j. E.U. was not enthusiastic about the idea of joint therapy, but felt that perhaps if his father first did some therapy of his own, that perhaps the following step could be joint sessions. He noted that his father has not maintained relationships with any of his extended family members, but continues to believe that his relationship issues are the problems of others. E.U. suggested “I don’t think the problem is us, I think he is the one who needs to start doing the work”.

[50] With respect to M.U., the OCL provided the following information:

a. M.U. resides with her mother and brother, but continues to spend time with her father.

b. M.U. opined that she did not like that she only has one weekend with her mom according to the current schedule.

c. She also stated that she did not like the extended one-week summer vacation time with her father, and finds it stressful.

d. M.U. expressed that sometimes her time in her father’s care is too busy (i.e. filled with activities). He does not consult her on her ideas or preferences. When she says she is tired, her father compares her to her mother and makes ‘not nice’ comments. If she says she doesn’t want to go for a walk, her father says “Oh, that’s your mother saying that”, or if she expresses that she doesn’t want to attend an event, her father says “that’s just your mom talking”. She expressed frustration that her father doesn’t listen to her voice, and “talks to me like I am 7”. She rated his ability to listen to her as a 3 out of 10.

e. M.U. preferred her parenting time with her father when E.U. used to attend, because E.U. stood up for her. She expressed that longer durations of time with her father typically result in more disagreements.

f. M.U. advised that she sometimes has difficulty sleeping in her father’s home, and that he does not support her use of melatonin to fall asleep.

g. She expressed that her father calls her on the phone too often. She believes her mother and father mostly communicate by email, but she does not see them.

h. M.U. also recalled a few events of significance:

i. On one occasion she changed the passcode on her phone because she was worried that her father would read her messages to her mother. Her father changed it back and forbade her from changing it again.

ii. With respect to her music recital, she recalled that “that wasn’t good. Kelly used bad words, gave her mom the finger, and almost hit mom’s car”. She felt confused and upset at the incident.

i. However, M.U. was also able to articulate positive experiences with her father, and enjoyable activities when in his care. At the same time she also complained that she is unable to spend time with her friends on her father’s parenting time.

j. Initially M.U. expressed that she would like to be able to decide when she goes to her father’s home. She expressed to the OCL clinician that her mother has told her that “if I don’t want to go, I don’t have to go”. The OCL clarified with M.U. that everyone is expected to follow court orders. M.U. later expressed that although she would like to continue seeing her father, she would like some minor changes to the schedule, including a reduction in sleepovers in his home and of extended stays in his care (such as over summer vacation, March Break, Christmas, etc.)

[51] The evidence of the clinician was not challenged in cross-examination.

B. Current Parenting Schedule

[52] At present, the operative court order with respect to parenting time is the Temporary Order of Justice Henderson dated March 30, 2023 which provides that:

a. Parenting time between the father and E.U. shall be in the discretion of E.U.;

b. Parenting time between the father and M.U. shall follow the following 4-week cycle:

i. Week One: Wednesday from 5 p.m. to 8 p.m., and Sunday from 10 a.m. to 7:30 p.m.;

ii. Week Two: Sunday from 1:30 p.m. to 4:30 p.m.;

iii. Week Three: Saturday from 5:00 p.m. to Sunday at 7:30 p.m.;

iv. Week Four: Wednesday from 5:00 p.m. to 8:00 p.m.

[53] The court is advised that this schedule was crafted in contemplation of the father’s shiftwork schedule. The mother is a 911 dispatcher, and attempts to arrange her shifts around this parenting schedule. At times she is required to call upon her family members to assist.

[54] The following text written exchange paints a picture of the some of the emerging contact issues between the father and M.U.:

April 10, 2023 11:29 a.m. - Email from father to mother: “A.U., As you believe that you can alter the times set out by the court for access I am informing you this not the case. Having M.U. calling me ½ hour before pick up after I have sent you multiple texts and emails is unacceptable. It will be noted for trial. I will be there in 20 min to pick her up. She doesn’t get to dictate access as the court order does. Have a good day. T.U.”

April 10, 2023 11:56 a.m. – Email from mother to father: “I’m not even sure what is happening. She’s in her bed having a meltdown. I told her she had to go. I told her she’d have consequences. I told her she needed to talk to you. I’m literally getting out of the shower. She’s sobbing about how much she hates you and wishes she didn’t have a dad. Jesus T.U., what did you say to her? She’ll be grounded for the day. There’s no point in you wasting time coming here. This is ridiculous. I will be making a dr. appointment this week for her. I will keep you advised of the outcome. It’s worth noting, I have asked you repeatedly not to text me. A.U.”

April 10, 2023 11:58 a.m. – Email from father to mother: “That’s fine be the parent and deal with it. It’s your problem to deal with not mine. I have access scheduled and plan on making it happen. I will be outside when you deal with it. T.U.”.

April 10, 2023 12:03 p.m. – Email from mother to father: “Just to be clear, it has been communicated to you she’s not coming, I’ve communicated consequences per your previous instructions and you’re advising me you’re sitting outside my home until I rip her from the door frame and put her in your car? I’m kindly asking you remove yourself from my home. This doesn’t need to escalate to a police call. But you can’t sit outside my home all day”.

April 10, 2023 12:07 p.m. – Email from father to mother: “This becomes a call to the police either you make it or I do it’s your choice. I will note that coparenting doesn’t stop at the end for your workday and neither does mine. Call the police or I will. They can deal with this that’s what they get paid for”.

April 10, 2023 12:11 p.m. – Email from mother to father: “You need to leave please. You’re blocking my car in so I can’t leave. You can file your report as you have in the past from your house”.

April 10, 2023 12:13 p.m. – Email from father to mother: “If you wish. I will be having the police attend my house per your request. I will not be sending them here for your statement. If M.U. is ill she shouldn’t be leaving your home. If she is healthy enough to leave she can come to my house for the afternoon”.

April 10, 2023 12:27 p.m. – Email from mother to father “For sure. I’ll give you a call or email. I just got her in the shower to calm down. I didn’t say M.U. was leaving. It’s possible I may have to get her medicine or go pick up E.U.. Literally everything is a battle. Sorry for the outcome that she didn’t come today. Maybe you can reconsider your position with respect to mutually attended therapy. That might help her more than just forcing her. Maybe understand what is bothering her and fix it. Let me know if you’re interested and I’ll check our schedules”

C. Mother’s Efforts to Compel and/or Promote Parenting Time

[55] The mother advises the court that the contact issues between the father, E.U., and M.U. have evolved to a level of complexity that she cannot manage on her own, without professional assistance. Her efforts to compel the children’s attendance through encouragement and positive reinforcement or through punishment (grounding, loss of privileges, no playdates, taking away Ipads/electronics, etc.) have failed. While she has acknowledged that her actions have not always been perfect, she advises the court that:

a. She has maintained a landline telephone line at her home for the sole purpose of allowing a direct line of communication between the father and the children without her acting as intermediary. She encourages the children to call him, answer the telephone, and speak to him.

b. She has made suggestions to the father as to how to ensure his parenting time is a positive experience for all, including for example:

i. On one occasion arranging for M.U.’s friend to have a sleepover at the father’s home;

ii. Suggesting that some of the children’s extracurricular activities be arranged on his parenting time so that he can share in their interests in experiences.

c. She has enrolled the children in therapy where their relationship with their parents is a topic of discussion, and she has repeatedly pleaded with the father to participate in some way in the therapy (to no avail).

d. When the father was ill in hospital, she brought M.U. to the hospital for visits, and brought coffee, playing cards, and puzzles in an effort to make the experience comfortable for all.

e. She tried to include the father in a school ‘food’ event, because M.U. had complimented her father’s Caesar salad. This evidently backfired.

[56] The mother advises the court that her efforts typically fail. She described that M.U. struggles to sleep in the father’s home, and on some occasions M.U. is physically sick before visits, experiencing gastro-related issues. She opined that the father cannot see past his hatred of her. She is aware that the father sees her as the sole cause of all of the children’s reluctance to spend time with him.

[57] The mother advises the court that she undergoes her own personal therapy. At times she participates in joint sessions with the children. She is learning different methods of strategies for dealing with teenagers, different ways to support them, communicate with them and work through their issues. She believes that it is the father’s anger, rigidity, and contempt for her that is pushing the children away. She wishes the father would engage in therapy to help him repair his relationship with the children.

D. Father’s Response

[58] In essence, the father denies that there is any real explanation for the children’s reluctance to spend regular time with him other than the influence of their mother. He described active parenting time and loving interactions with the children when they have been in his care. He asserts that his time with M.U. continues to be enjoyable and fun. His partner and his partner’s sister testified to loving interactions between father and daughter during their time together.

[59] In the father’s closing statement he reiterated that he could not be ordered to participate in therapy and does not trust the children’s therapist. He did not advance any alternatives. Instead, he requests a parenting schedule for both children which increases the amount of parenting time that is prescribed under the Final Order of Justice Lococo from 2018, in addition to regularly scheduled telephone calls. He requests police enforcement of the parenting schedule.

[60] The father believes that all of the children’s reluctance to parenting time can be attributed to interference by the mother. In an effort to address this, shortly before the commencement of this trial the father communicated to the mother that M.U. would no longer be permitted to communicate with the mother during his parenting time:

September 24, 2023 12:23 p.m. Email from father to mother: “A.U., I have let this go for too long already. As of this minute you are not to communicate with M.U. while she is with me or on my time… this is a demand. As of this moment you are not to communicate with M.U. and I expect all communication to go through me moving forward. If there is a problem with this the judge is available during trial and you should address this at that time… T.U.”.

[61] The father testified that when he attempts to discuss M.U.’s sleep issues with her, she ‘shuts him out’. He asserted that “freezing me out during conversations isn’t how children should treat people. I don’t know how to make this better”. But he expressed resentment that the mother is “trying to force me into therapy”. He acknowledged that he has not taken any parenting courses.

[62] The father appeared to harbour distrust for therapy and therapists in general. He acknowledged reporting a previous therapist of the children to the College, which caused her to withdraw her services. In cross-examination he acknowledged that he had never researched or suggested any other therapists for the mother’s consideration. He testified that he was “willing to accept the consequences” of his decision to refuse to attend therapy.

E. Parenting Exchanges

[63] In March 2022 the mother advised the father that she was not comfortable with him videotaping their parenting exchanges. The father’s response was that she could bring the issue to the attention of the police or to arrange for supervised access exchanges through FACS.

[64] The mother also testified that father is generally unwilling to accommodate parenting exchanges at locations that correspond with the children’s activities. For example:

a. On an occasion, when the father’s parenting time was scheduled to commence at 1:30 p.m., the following exchange ensued:

August 18, 2023 9:40 a.m. – Email from mother to father: “Hey, M.U.’s camp has a big summer camp celebration Sunday to wrap up the week. Wondering whether you would be agreeable to get her for pick up at the church at 1:30? It’s on Louth St. in St. Catharines. A.”

August 18, 2023 9:42 a.m. – Email from father to mother: “You can drop her off at my place at 2:00 p.m.”.

August 19, 2023 11:47 a.m. – Email from mother to father: “She’ll be at Summerfest for the start of your access at 1:30. Are you agreeable to pick up there or no?

August 19, 2023 11:53 a.m. – Email from father to mother: “Again, access starts at 1:30. I have offered to change the terms of access and now you have changed the terms of access. It started out as there was something at the church to end her week of camp. Now you can’t keep your plans together. It is your responsibility to have M.U. at home for the start of access as you wanted during the last trial. You asked for it, now you have it. There is no need to communicate further. Access starts at 1:30 at your place for pickup. I will see you there. T.U.”.

August 19, 2023 11:58 a.m. – Email from mother to father: “Summerfest is literally the name of the thing at the church. Lol. I’m not asking to change terms of your access, was just wondering if you’re able to get her there. It’s 4 more exits off the highway for you. You’re so ridiculous. Changing the terms was ok last week when your car broke down and I helped you by coming to get her. Next time you can take an Uber or taxi I guess since the terms can’t be changed.

August 19, 2023 12:02 p.m. – Email from father to mother: “Using that thought it is only 4 exits closer to return home. You should use your logic to solve problems instead of causing problems. I will be at your place at 1:30 to start my access.

b. On August 30, 2023, when the father’s parenting time was scheduled to commence at 5:00 p.m., the following (text) exchange ensued:

5:01 p.m. (mother to father): “ Just around the corner she had therapy then

5:02 p.m. (father to mother): Well access starts at 5. Your poor planning is unacceptable…

5:02 p.m. (mother to father) You’re welcome to start picking her up from therapy. Also you were literally late last drop off from the bridge.” (as seen in the preceding text).

F. Police Enforcement

[65] Fifteen police occurrence reports were filed as an Exhibit at this trial. Fourteen of the reports were complaints made by the father, regarding the children’s failure to attend for access. On each of those occasions, police spoke to the parties and the children remained with the mother. The court is advised that, as at the time of trial, the father had called the police on two more occasions, with similar results. One of the incident reports, reported by the mother on June 26, 2023, related to the incident which occurred following M.U.’s musical recital as recounted by the children above.

[66] The father testified at that trial that he viewed the effect of denying his parenting time with the children to be “as detrimental as ripping them off the doorframe”.

[67] On July 20, 2023 Justice Donohue dismissed a motion brought by the father for police enforcement of his parenting time.

Discussion and Conclusions

[68] It is the conclusion of this court that the contact issues which have fully crystalized between E.U. and the Applicant father, and which are emerging between M.U. and the Applicant father have arisen as a result of the actions and inactions of both parties over a long period of time.

[69] The mother presented in more polished fashion than the father at this trial. She was clearly better informed and more organized than the father in presentation of her case. She has also clearly put E.U. and M.U. at the center of her world and has carried the lion’s share of the day-to-day parenting burdens and responsibilities for the children post-separation. It is not unusual that the children have bonded with her as the primary parent and that she has become the parent to whom they turn for comfort when dealing with their fears and anxieties. But this somewhat common alignment or favouring of the mother should not have resulted in the outright rejection that E.U., and increasing rejection that M.U., are now displaying towards their father.

[70] It is difficult to accept that the degree of fracture that has arisen between the children and their father has occurred in a vacuum, without any form of influence by the mother. The mother must continue to harbour some animus towards the father. If she did not, there is little explanation for her actions in writing a 2-page whistle-blowing letter to the father’s partner’s sister’s employer regarding compliance with Covid-19 protocols, or lack thereof, in April 2021 (a letter which opines upon the honesty, integrity, and arrogance of an individual she had never met). Evidence of that animus presented itself in the form of marginalizing behaviours which emerged through the course of the trial. For example:

a. Subtle influence can be detected in the few text messages between the mother and M.U. which were tendered at trial. The court read examples of the mother joking with the child over the activities her father had her try (e.g. “maybe we can find you a pickle ball club. Lol.”), and ‘reminding’ the child of things she should address with her father (e.g. “maybe you can try to talk to dad about thanksgiving being too long”);

b. The child E.U.’s two descriptions of (a) the mother covering the window with a blanket, and peeking outside with M.U. at the father, and (b) the mother and M.U. “bawling in the kitchen” over a scheduled parenting exchange, both paint a vivid picture of a mother who is capitalizing on the child’s anxieties to ease her own insecurities and further her own agenda.

c. The child M.U.’s disclosure to the OCL that her mother has told her that “if I don’t want to go, I don’t have to go”, at age 11 was clearly an inappropriate directive to share with the child.

[71] As the primary parent, the mother should have used her opportunity to influence the children in a manner that positively promoted, not undermined, the children’s relationship with their father. She won the popularity contest - at considerable risk to the children’s long-term mental health and security. The silver lining is that the mother is now in therapy herself, and appears to demonstrate the ability and insight necessary to reflect upon how her conduct has contributed to the children’s current circumstances and to work towards personal and parental growth. If the mother is truly committed to bettering the circumstances of the children, she should share the above examples of her contributing conduct with the children’s therapist and her own therapist.

[72] However, the ‘blame, does not fall squarely on the mother, as the father believes. The interviews conducted with the children by the OCL, and the positions taken by the father in his communications with the mother and as advanced in court suggest that there are very real and legitimate reasons why these children have grown increasingly distant from and have chosen to limit their contact with the father. He is stubborn in his views and fixated in his positions. It is easy to understand why the children perceive that he does not listen to them. The OCL cross-examination of the father, regarding the potential benefits of therapy and courses on adolescent development, was an excellent demonstration of the father’s unbending and unreasonable positions complained of by the children. Unfortunately, the father demonstrates no insight, and no willingness to gain any insight, regarding his own contributing role in the deterioration of both parent-child relationships, or any efforts he could make towards improvement.

[73] Regardless of the cause, the relationship between the father and E.U. has been completely fractured and the relationship between the father and M.U. is not far behind. This case is rather atypical. Normally in these circumstances, the parent with the strained parental relationship comes to court fighting for some form of therapeutic reconciliation counselling with the children, and the favoured parent is opposed. In this case it is the opposite. The mother recognizes that the current circumstances are unhealthy for the children, and she understands that the problems have grown to such a level that qualified professional intervention is necessary. It is the father who is completely opposed to any form of therapeutic assistance.

[74] The father’s request for enforcement without substantial therapeutic support is simplistic and unrealistic. His belief that ‘all will be well’ if the court simply orders the police to enforce his parenting time demonstrates a basic lack of understanding of the potential harm that such an order could cause to E.U. and M.U.. I share the sentiments of Justice Pazaratz, in Patterson v. Powell that “surely s. 36(2) of the Children’s Law Reform Act is intended to be a protection for children, not a weapon for disgruntled parents”: 2014 ONSC 1419 at para. 26. The Applicant father has already usurped far too many police resources in his effort to keep a police diary of his missed parenting time. This is not “what they get paid for” as he suggests. The father’s position that “denying his parenting time” is no worse than forcibly “ripping the children from the doorframe”, with police force if necessary (his words), while at the same time refusing to attend any form of education or therapy which might help him understand the children’s perspectives and improve his parenting skills, reflects an inability to put the needs of the children ahead of his own. There will be no police enforcement clause, and the father is expressly directed not to report any future missed parenting visits to first responders as a form of record-keeping.

[75] The father is correct, that his engagement in therapy must come from within - not from a court order. However, the mother and OCL are also correct, that if the father does not embrace therapy, both on his own and in conjunction with the therapy of the children, it is unlikely that he will ever again experience a strong and healthy bond with E.U. or that his current tenuous connection with M.U. will be maintained. Without sufficient therapeutic support in place, it is not in E.U.’s best interests to order scheduled parenting time. Without sufficient therapeutic support in place, it is not in M.U.’s best interests to order anything more than scheduled daytime parenting time, unless she requests otherwise. Both children shall have the right to request additional time with the father in their own discretion.

[76] I have heard and weighed the voice of the children in crafting the appropriate parenting schedule. I have considered their different ages and stages of development. I am alert to M.U.’s concerns regarding being overscheduled and unheard in the father’s home, her current level of discomfort in sleeping at his residence, and her age-appropriate desire to engage in social activities outside of her family and spend time with friends. With respect to the proposed parenting schedules of both parents and the OCL, I decline to order the specific schedules they have proffered. Instead, I conclude that M.U. would benefit from enjoying ‘complete’ alternating Sundays in the comfort of her primary residence. She will spend time with the father on Wednesday evenings, whenever his work schedule permits and on alternating weekends, without overnights unless requested by M.U.. To order otherwise, without additional therapeutic support in place to help the father understand M.U.’s voice, would only contribute to M.U.’s building resentment and resistance. Physical time with children does not automatically ensure an emotional connection. Effort is required. The father presently does not appear to understand the need or nature of the effort that is required by him. As such, I find that in the specific circumstances of this case, a reduction of parenting time is necessary to preserve the remaining emotional connection that M.U. presently maintains with her father.

[77] The father has demonstrated an inflexibility in picking up M.U. from any location other than the mother’s home at the commencement of his parenting time. This is an immature position, grounded in his conflict with the mother rather than in the best interests of M.U.. Picking up M.U. directly from her events and activities would (a) be a positive sign of support and interest in daily M.U.’s life, (b) provide a natural topic for discussion between father and child during the car ride to his home, (c) reduce travel time for M.U. between destinations (to her overall benefit and convenience), and (d) be a direct transfer of M.U. into the father’s care outside of any perceived negative influence by the mother. Rethinking his position on this topic might yield positive results for the father. However, this court does not wish to create any more room for conflict between the parties, and as such, unless otherwise agreed between the parties, it will simply be left that exchanges take place at the mother’s home.

[78] The father may request a review of this parenting order, without necessity of establishing a material change in circumstances, upon providing proof of completing a minimum of six months of regular and intensive individual therapy wherein he focuses upon and demonstrates an understanding of the steps he can take to (a) improve his coparenting relationship with the Respondent mother, (b) understand the needs and perspectives of his adolescent children, and (c) promote a positive and healthy relationship with both of his children.

Child Support

[79] The governing orders with respect to child support are located in various orders of the court.

[80] The payment of medical expenses relating to the children were governed by the Final Order of Justice Lococo dated December 19, 2018. In particular:

a. The mother is to contribute 25% of the father’s medical coverage deductible;

b. The parties are to share equally any other amount for the children’s health-related expenses not otherwise covered through the father’s benefits plan.

[81] The payment of table child support and other section 7 expenses were governed by the Final Order of Justice MacPherson dated November 9, 2020. In particular, the father was ordered to pay:

a. Table child support to the mother of $1,139.00 per month, based upon an annual income of $75,897.00;

b. Section 7 expenses of $120.00 per month reflecting $80.00 for childcare, and $40.00 per month for children’s activities.

[82] On April 1, 2022, a Temporary Order was made which adjusted the Table amount of child support to correspond with the father’s 2021 income, terminated the father’s obligation to contribute to childcare expenses, and ordered the father’s contribution towards extracurricular activities to be paid at a rate of $80.00 per month.

[83] Both children are minors and are entitled to support from their parents under s. 31 of the Family Law Act. An order for child support must be made in accordance with the Child Support Guidelines. Under s. 3 of the Guidelines the amount of an order for the support of children under the age of majority is:

a. The amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought: and

b. The amount, if any, determined under section 7.

Table Child Support

[84] The parties have generally managed to adjust the monthly table amount of child support payable on an annual basis as directed by paragraph 8(c) of the Final Order of Justice Lococo dated December 19, 2018. That is, on July 1st of each calendar year, they adjust the table amount payable by the father to the mother to reflect the father’s reported income from the preceding year. The Temporary Order of Justice MacPherson, dated April 1, 2022, did so on consent, effective July 1, 2021. There is no reason to make a change to this practice, as it is one of the few areas upon which the parties are able to reach consensus. This court will make the table support adjustments effective July 1, 2022 and July 1, 2023, based upon the Applicant father’s 2021 and 2022 reported incomes.

[85] The father’s Line 150 Income in 2021 was $67,833.00. The corresponding Table amount of child support payable for two children for the period July 1, 2022 to June 3, 2023 is $1,033.00. The father’s Line 150 Income in 2022 was $72,891. The corresponding Table amount of child support payable for two children commencing July 1, 2023 is $1,108.00.

[86] There will be an order which varies Table child support on a Final Basis in accordance with these calculations. The Family Responsibility Office will adjust their records accordingly. Moving forward, the parties should utilize the Ontario online child support recalculation service to avoid the necessity of returning to court.

Section 7 Expenses

[87] The issue of contribution to section 7 expenses has been more problematic and took up a rather disproportionate amount of time at this trial.

[88] Section 7 of the Child Support Guidelines provides as follows:

Special or extraordinary expenses

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, 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 parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

(a) child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the parent or 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, 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.

Definition, “extraordinary expenses”

(1.1) For the purposes of clauses (1) (d) and (f),

“extraordinary expenses” means

(a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent’s or spouse’s income and the amount that the parent or 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 clause (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 parent or spouse requesting the amount, including the amount that the parent or 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,

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

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

Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

[89] The court heard evidence with respect to section 7 expenses incurred in 2022 and 2023. In 2022 the Applicant father earned approximately $73,000.00 and the Respondent mother earned approximately $68,000.00. The court is led to believe that the incomes of both parties in 2023 were comparable.

A. Medical, Dental and Therapeutic Expenses

[90] The children’s medical expenses exceed $100.00 annually and qualify as s. 7 expenses under s. 7(1)(c) of the Guidelines. As per the Final Order of Justice Lococo, the parties were required to share equally in the cost of the children’s health related expenses. Given the relative proximity of the parties’ incomes and the guiding principle with respect to proportionate sharing of expenses, I do not see any reason to disturb this arrangement.

[91] Reimbursement of medical and dental expenses (and in particular orthodontic and therapeutic costs) for the children have caused substantial conflict between the parties. In particular, they have struggled to navigate the coordination of benefits and reconciliation of payments. The emails exchanged between them suggest that the mother typically pays the up-front cost of the children’s medical, dental and therapeutic expenses. The invoices are then sent to the father (either from the mother or directly from the service provider) for submission to his benefits. The mother then awaits reimbursement of the father’s share of the expenses not covered by insurance. The father first deducts her 25% share of the cost of maintaining the benefits, and e-transfers payment to her without any mathematical explanation.

[92] The mother complains that (i) the amount of the father’s coverage and the ‘deductible’ 25% portion is not clear, and (ii) sometimes the father does not pay at all. When she requests clarification of what his contributions relate to/details of his calculations the father responds negatively. For example:

March 13, 2023 5:36 p.m. Email from mother to father: “T.U., I am requesting copies of the explanation of benefits from your policy for all reimbursements during the times of orthodontist payments (2020-present). Please indicate when or if the deducible has been paid already this year so I can accurately provide your outstanding share of expenses.”

March 13, 2023 5:44 p.m. Email from father to mother: “A.U., Diverting blame and responsibility away from you and your lack of actions based on your perceived lack of information that you don’t have is a tactic for someone who is desperate to trying and figure out what you have failed to do until such time as you can figure this out… T.U.”

May 3, 2023 – 4:57 p.m. Email from mother to father: “T.U., I received the money you sent. Please provide the detailed information from your benefit so I can account on my end what has been paid and what your benefits paid out. Thanks.

May 3, 2023 – 4:58 pm. Email from father to mother: “I have never done this in the past and won’t be doing so now. If you can show me a court order that requires me to do so I will comply”.

October 2, 2023 4:15 p.m. Email from mother to father: “T.U., Could you please identify what the transfer is for by stating the date. I sent three receipts for the kids. Much appreciated. A.U.”

October 2, 2023 4:18 p.m. Email from father to mother: “I have sent everything I plan to. It’s your responsibility to know what was sent. Look at your exhibits and tell me what you have sent in an email or multiple emails. You have no clue what you have sent or what is owing. Don’t expect me to do your paperwork for you. You have also failed to follow the court order and this will be addressed during trial. T.U.”.

[93] At trial the father testified that, if he submits receipts, there is a deductible of $97.20 which is applied every three months before payment. He did not provide supporting documentation.

[94] The mother has some medical and dental coverage for the children through Greenshield, which she first exhausts. She does not have any coverage for the children’s mental health therapy. In May 2023 the mother became aware that the father had misrepresented the coverage he had available under his benefits for children’s therapy. On July 22, 2021 he advised her in writing that his coverage only permitted $40.00 per visit up to an annual maximum of $200.00. In May 2023 she learned that the policy permitted $50 per visit to an annual maximum of $650.00. When the father was asked at trial why he would simply not have provided the mother with a copy of his benefits package, his response was “because it would lead to more questions”. Later in his evidence the father testified that “100% coverage has only recently occurred”. The father still did not provide a copy of his benefits package to the court.

[95] The mother advises that the father’s contribution to dental and orthodontic expense were in good standing until his hospitalization in December 2022 and then issues began to arise. The mother also testified that the father’s contribution and reimbursement for the children’s therapeutic expenses has always been an issue.

[96] I have reviewed the invoices submitted into evidence by the mother, and the e-transfer history submitted into evidence by the father and find as follows:

1. The mother proved that she paid the following medical expenses on behalf of the children for a total output of $3,357.50:

a. Orthodontics – E.U.: $1,400.00 (December 2022 to September 2023);

b. Orthodontics – M.U.: $262.50 (December 2022 to September 2023);

c. Therapy – E.U.: $995.00 (April 2022 to September 2023); and

d. Therapy – M.U.: $700 (April 2022 to September 2023).

2. The father paid a total sum of $1,459.00 to the mother with respect to these expenses.

[97] The father did not provide a copy of his benefits package to the court. He did not testify as to how much coverage he had for the children’s orthodontic expenses. He was initially untruthful with the Respondent mother regarding coverage for the children’s therapy. As a result of his untruths and omissions I draw an adverse interest against him. I find that the father recovered approximately 75% of the above total invoices submitted by the mother from his insurance provider. Specifically, I find that the father recovered the approximate sum of $2,500.00 relating to the children’s expenses and that this amount should have been paid directly to the mother. In addition, the remaining balance of $857.50 (i.e. the amount not recovered under his benefits plan), must be divided equally between the parties, such that the father would owe the mother an additional $428.75. The total sum payable by the father to the mother up to and including September 30, 2023, is $2,928.75. From this amount the father shall receive a credit of $1,556.20 representing his payments made of $1,459.00, plus $97.20 as the 25% annual deductible that was payable by the mother towards the cost of maintaining the children’s benefits.

[98] In short, the Applicant father owes the Respondent mother the sum of $1,372.55 with respect to the children’s medical expenses incurred as of September 30, 2023.

[99] In order to avoid future mischief in enforcement moving forward, within 30 days the father will be required to:

a. produce to the Respondent mother a complete copy of his benefits package available to him through employment; and

b. provide the Respondent mother with a written authorization and direction, and execute any other forms necessary to permit the Respondent mother to communicate directly with his benefits provider and to submit receipts and receive reimbursement directly from the benefits provider.

[100] In the event that the father fails to comply with these requirements, or his benefits provider will not allow direct submission and reimbursement by the mother:

a. With respect to the children’s therapeutic expenses the service provider will be requested to simultaneously provide invoices to both parties. The father’s plan now covers 100% of these costs. The mother shall remit the invoices to the Family Responsibility Office for 100% enforcement against the father, and the father shall be solely responsible for submitting the invoices to his benefits provider for reimbursement to himself.

b. With respect to the children’s other medical and dental expenses not covered by the mother’s benefits provider, the mother shall remit the invoices to the Family Responsibility Office for 75% enforcement of the remaining balance against the father, and the father shall be solely responsible for submitting the invoices to his benefits provider for imbursement to himself.

[101] As the father did not tender the necessary information into court regarding the extent of his benefits coverage, the court has had to estimate his coverage. So as not to allow the father to benefit from his own material non-disclosure, the previous requirement for the Respondent mother to contribute to the portion of the medical and dental insurance premiums attributable to the children shall be vacated. Moving forward the father will have to assume responsibility for his own reimbursement for amounts expended. The mother will cooperate in ensuring that the father receives copies of the necessary paperwork (e.g. invoices and amounts covered through her own benefits plan), but she will not be required to act in a role akin to the father’s administrative assistant.

B. Extracurricular Activity Expenses

[102] The mother presently receives $80.00 per month from the father towards the children’s extracurricular activities, which is enforced through the Family Responsibility Office, as per the Temporary Order of Justice MacPherson dated April 1, 2022. The father has repeatedly stated that he will not contribute to any costs over and above this amount. For example:

September 7, 2022 – 3:41 p.m. Email from father to mother: “The activity fees. As you have made over $20,000.00 more than me my contribution should be lowered to $0. You have to show why I should be contributing anything to activities. T.U.”

March 1, 2023 – 2:53 p.m. Email from father to mother: “So the extras for the music and volleyball comes out of your pocket, not mine. So that will not be covered by me at all.”

[103] The mother testified that the cost of the children’s extracurricular activities has increased. The children enjoy their activities, and it is beneficial for their social and emotional health and development. From January to September 2023 the cost of E.U.’s guitar lessons totalled $1,402.50. The cost of M.U.’s piano and volleyball totaled $975.00 during the same period. M.U. also attends some summer camps which have not been included in this total.

[104] With respect to the children’s extracurricular activities, I make the following findings:

a. Engaging extracurricular activities is healthy for E.U. and M.U.. Especially in these circumstances where the children have been exposed to adult conflict, their participation in social activities and other areas of interest is necessary for their ongoing development.

b. The extracurricular activities that the children are currently enrolled in and have, in past, been enrolled in are reflective of their own individual areas of interest.

c. The mother has made fiscally responsible decisions regarding enrollment of the children in these activities. Although the children’s selections have been financially prudent, the total cost exceeds that which the Respondent mother can reasonably cover on her own without contribution from the father.

d. The father’s contribution to the cost of extracurricular activities has been a source of conflict between the parties. A fixed and estimated monthly contribution, enforced through the FRO is the only viable method of minimizing conflict and ensuring payment of these expenses.

e. A reasonable budget for children’s extracurricular activities, in the context of these parties’ incomes is $1,875.00 per year per child. A fixed monthly contribution by the father of $80.00 per month to such expenses is insufficient and must be increased to meet the specific needs and talents of E.U. and M.U.

f. A retroactive adjustment is not appropriate, as both parties structured their financial affairs to comply with their temporary agreement, as incorporated into the Temporary Order of Justice MacPherson dated April 1, 2022.

[105] On a go-forward basis, effective September 30, 2023, I conclude that the appropriate fixed monthly contribution by the father towards the cost of the children’s extracurricular activities must be increased to $155.00 per month. The mother shall keep an annual accounting of these expenses. If the total amount of extracurricular activities incurred on behalf of both children totals less than $3,750.00, she shall reimburse the father his overpayment. However, the Respondent mother shall be responsible for any amounts which exceed $3,750.00 annually. The mother shall provide this accounting annually by July 1st, commencing in July 2025.

[106] Both parties have included terms of payment relating to post-secondary expenses on behalf of the children in their proposed draft orders. This issue was not addressed in evidence at trial. There is no evidentiary foundation upon which this court could make an order relating to contribution to post-secondary expenses at this time. However, a child reaching the age of majority and/or attending post-secondary studies would likely trigger a material change in circumstances which would warrant further review in future. It is premature to consider any such relief at this time.

Order

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

1. All terms of the following court Orders in this case are hereby terminated and replaced with the provisions which follow:

a. The Final Order of the Honourable Mr. Justice R. Mazza, dated February 11, 2015;

b. The Final Order of the Honourable Mr. Justice R.A. Lococo, dated December 19, 2018;

c. The Final Order of the Honourable Mme. Justice W. MacPherson, dated November 9, 2020; and

d. All temporary orders made in the context of this Motion to Change proceeding.

Parenting

Pursuant to the Children’s Law Reform Act

Decision-Making

2. The Respondent mother, A. U., shall have sole decision-making authority over all aspects of care regarding the subject children, namely E.U. and M.U.

Communication and Exchange of information

3. The Respondent mother shall inform the Applicant father of all important issues and appointments relating to the medical, dental, orthodontic, therapeutic and educational care of the children, in writing and in a timely fashion.

4. Both parties shall immediately notify the other of any emergency medical issue relating to the children.

5. The Applicant father shall be entitled to ask for and, subject to any applicable laws, receive information about the children’s well-being, including about their health and education, from the Respondent mother and any other third-party care provider who is likely to have such information.

6. The Applicant father shall be responsible for ensuring that he remains on the general email communications list at the children’s schools, family physician and dental offices. The Respondent mother shall be under no obligation to inform the father of information communicated to him through these automated systems.

7. Both parties shall be listed as emergency contacts for the children at their schools, places of care and treatment, extra-curricular activities, etc.

8. The children shall continue in regular therapy until they reach 16 years of age, at which time they may continue therapy in their own discretion.

9. Unless expressly invited by the Respondent mother, either child, or a service provider, the Applicant father shall not attend the children’s medical appointments. He may request a separate appointment with the service provider in his own discretion.

Extra-curricular Activities

10. The Respondent mother shall not schedule appointments or extracurricular activities for M.U. during the Applicant father’s parenting time without the father’s consent.

Government Documentation and Travel

11. The Respondent mother may obtain and renew all government documentation relating to the children, including the children’s passports, health cards, etc. without the Applicant father’s written authorization or consent. The mother shall be the custodian of the children’s official documents.

12. The Respondent mother shall be entitled to travel with the children without the consent or authorization of the Applicant father. She shall provide the father with a minimum of 30 days’ written notice of any intention to remove either child from Canada, which notice shall include particulars relating to the location of their travel, transportation, accommodations, duration, contact information, etc. The mother’s travel shall not interfere with any of the father’s scheduled parenting time.

13. Despite paragraph 12, the Respondent mother shall be entitled to travel to the United States with the children on her own parenting time for periods of 72 hours or less on 24 hours’ notice to the Applicant father.

14. The Applicant father shall not remove either child from the Province of Ontario without the Respondent mother’s written consent.

Relocation

15. The parties shall comply with the requirements of s. 39.1 of the Children’s Law Reform Act (including any amendments and successor legislation) with respect to any future change in residence.

Regular Parenting Schedule

16. Parenting time between the Applicant father and the child E.U. shall be in the discretion of the child.

17. Parenting time between the Applicant father and the child M.U. shall be as follows:

a. On alternating Sundays from 10:00 a.m. to 7:30 p.m.;

b. Wednesday evenings from 5:00 p.m. to 8:00 p.m., to correspond with the father’s employment schedule; and

c. Such further and other time to which the parties agree, in consultation with the child.

18. Overnight parenting time between the Applicant father and M.U. shall be in the discretion of the child, in consultation with her therapist:

a. In the event that the child expresses a desire to spend overnight parenting time with the Applicant, the father’s weekend parenting shall be extended to include an overnight visit, commencing at an agreed-upon time on Saturday.

b. In the event that the parties disagree upon the child’s stated views and preferences regarding overnight visits, they shall request a brief written statement from the child’s therapist, communicated/emailed simultaneously to both parties, clarifying the child’s position.

Parenting Exchanges

19. Unless otherwise agreed between the parties, parenting exchanges shall take place at the residence of the Respondent mother.

Holiday Schedule

20. The following holiday schedule shall override the regular parenting schedule with respect to M.U.:

a. M.U. shall be in the care of the Applicant father on Father’s Day each year from 10:00 a.m. to 7:00 p.m.

b. M.U. shall remain in the care of the Respondent mother on Mother’s Day each year.

c. M.U. shall remain in the care of the Respondent mother on December 25th each year.

d. M.U. shall be in the care of the Applicant father on Boxing Day (December 26th) each year from 10:00 a.m. until 9:00 p.m.

e. M.U. shall be in the care of the Applicant father on New Year’s Day (January 1st) each year from 10:00 a.m. to 9:00 p.m.

f. Unless otherwise agreed between the parties, Thanksgiving and Easter parenting time shall follow the regular parenting schedule.

g. There shall be no make-up time for any disruption these holiday provisions cause to the regular parenting schedule.

Review

21. The father may request a review of this parenting order, without necessity of establishing a material change in circumstances, upon completion of a minimum of six months of regular and intensive individual therapy wherein he focuses upon and demonstrates an understanding of the steps he can take to (a) improve his coparenting relationship with the Respondent mother, (b) understand the needs and perspectives of his adolescent children, and (c) promote a positive and healthy relationship with both of the children.

Child Support

Pursuant to the Family Law Act

22. Commencing July 1, 2022 the Applicant father shall pay table child support to the Respondent mother on behalf of the subject children, namely E.U. and M.U., in the amount of $1,033.00 per month, based upon an income of $67,833.00 in accordance with the Child Support Guidelines.

23. Commencing July 1, 2023 the Applicant father shall pay table child support to the Respondent mother on behalf of the subject children, namely E.U. and M.U., in the amount of $1,108.00 per month, based upon an income of $72,891.00 in accordance with the Child Support Guidelines.

24. By July 1st of each calendar year the parties shall exchange their respective Notices of Assessment/Re-Assessment for the previous calendar year and shall adjust the child support payable between them effective July 1st.

25. Both parties shall continue to ensure that the children are named as beneficiaries on any and all health benefits coverage available to them through their respective employment.

26. The Applicant father shall pay to the Respondent mother the sum of $1,372.55, with respect to his underpayment/contribution to the children’s medical expenses owing as at September 30, 2023.

27. Within 30 days the father shall:

a. Produce to the Respondent mother a complete copy of his benefits package available to him through employment: and

b. Provide the Respondent mother with a written authorization and direction, and shall execute any other forms necessary to permit the Respondent mother to communicate directly with his benefits provider and to submit receipts and receive reimbursement directly from the benefits provider.

28. In the event that the father fails to comply with the requirements in paragraph 27 above, or his benefits provider will not allow direct submission and reimbursement of expenses by the mother, commencing October 1, 2023:

a. With respect to the children’s therapeutic expenses the service provider will be requested to simultaneously provide invoices to both parties. The mother shall remit the invoices to the Family Responsibility Office for 100% enforcement against the father, and the father shall be solely responsible for submitting the invoices to his benefits provider for reimbursement to himself.

b. With respect to the children’s other medical and dental expenses not covered by the mother’s benefits provider, the mother shall remit the invoices to the Family Responsibility Office for 75% enforcement of the remaining balance against the father, and the father shall be solely responsible for submitting the invoices to his benefits provider for imbursement to himself.

c. The Applicant father shall receive a credit for any payments made to the Respondent mother for the period of October 1, 2023 to date.

29. Commencing October 1, 2023, the Applicant shall pay a fixed monthly sum of $155.00 per month to the Respondent mother as his proportionate contribution to the children’s extracurricular activities.

30. Commencing July 1, 2025, the Respondent mother shall provide an accounting of the children’s extracurricular expenses for the preceding 12-month period, and any overpayment made by the father towards the children’s extracurricular activities in that time shall be reconciled and reimbursed to him by the mother.

31. The Applicant father shall continue to name and maintain the children as the sole beneficiaries of his life insurance benefits, available through employment, as security for his child support obligations.

Miscellaneous

32. A Support Deduction Order shall issue.

33. If costs are in issue:

a. The party seeking costs shall serve and file written Cost Submissions, not exceeding 5 double-spaced pages in length, plus any applicable Bill of Costs with supporting documentation and relevant Offers to Settle by February 16, 2024; and

b. The party responding to the request for costs shall serve and file written Responding Costs Submissions, not exceeding 5 double-spaced pages in length, plus any applicable Bill of Costs with supporting documentation and relevant Offers to Settle by March 1, 2024.

Released: February 21, 2024 Lauren Bale J.

COURT FILE NO.: 532-14 DATE: 2024-02-01 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: T.T.U. Applicant - and - A.M.U. Respondent REASONS FOR JUDGMENT Lauren Bale J. Released: February 21, 2024