COURT FILE NO.: FS374/18

DATE: February 13, 2024 (see appended correction notice dated February 16, 2024)

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

D’Arcy Mosher

Michael Purves-Smith, for the Applicant

Applicant

• and -

Angela Bossence

Brian Kelly, for the Respondent

Respondent

HEARD: July 17, 18, 24, 25, 26, 27 and 28, 2023

HASSAN J.

INTRODUCTION

[1] This Motion to Change proceeding began in August 2014 in the Superior Court of Justice in Guelph, Ontario. The Applicant sought to change a consent final Order made only five months earlier, on March 4, 2014 (the “March 2014 Order”). The child of the relationship, and the subject of the Motion to Change, Audrey Mae Bossence-Mosher, born February 20, 2012, was then two and a half years of age. The Applicant sought to change and add parenting terms. The Motion to Change included 38 separate heads of relief relating to parenting time and child support. The Applicant did not seek to change the joint custody agreed to in the March 2014 Order.

[2] In his Motion to Change, the Applicant also sought to have a parenting assessment undertaken, and a consent Order was made in September 2014 for the parties to participate in an assessment with the London Custody and Access Centre.

[3] In February 2018, the matter was transferred to Stratford Superior Court.

[4] In July 2018, an order was made for an updated Assessment by the London Family Court Clinic. The Court declined to order a further update in June 2021.

[5] The Applicant’s Motion to Change was amended in August 2018, adding a claim for sole custody, as it was then referred to.

[6] The Respondent filed a Response to the Amended Motion to Change, in May 2021, seven years after the proceeding started. The Response was filed in compliance with an order of April 2021. The Response sought to dismiss the Motion to Change relating to parenting time and decision-making responsibility and to change child support payable by the Applicant, to include capital gains in income for support purposes for the year 2016. The Respondent asked that the parties engage a parenting coordinator to assist in decision-making.

[7] On August 22, 2022, at a Trial Management Conference, the Respondent’s Response to Motion to Change was changed to add a term that, if the Trial Judge determined that joint decision-making was not appropriate, then sole decision-making authority ought to be vested in the Respondent.

[8] The matter proceeded to trial for seven days between July 17 and July 28, 2023.

ISSUES

[9] The issues at trial were:

a) Has there been a material change in circumstances since the March 2014 Order relating to decision-making responsibility and parenting time, such that it would be in the best interests of the child, Audrey, to change the terms of the Order;

b) If yes, then what decision-making order would be in the best interests of the child, Audrey;

c) Each party’s request for changes to the parenting schedule, including:

i. weekly parenting time on a week-about basis (on consent)

ii. the Applicant’s request for a 2-week rotation over the summer school break

iii. the Applicant’s request to terminate the child’s Monday dinner visits

d) The Applicant’s claim to impute income to the Respondent for the years 2014–2020; and,

e) The Applicant’s request to exclude capital gains from his income for the year 2016.

[10] The parties each submitted draft orders at trial, containing various terms not included in the existing final order. I will make determinations on only those changes addressed by the parties in their evidence and submissions. To the extent that the terms are included in both draft orders, I will incorporate those terms into the final order.

EVIDENCE

[11] By order of August 22, 2022, each party’s evidence in chief was offered by way of Affidavit, with brief viva voce evidence from each party.

[12] Both parties attached extensive documentary evidence to their Affidavits. The Applicant added three supplementary document briefs over the course of the trial.

[13] The documentary evidence consisted of thousands of pages of selected excerpts from communications between the parties, records from various medical, educational and counselling professionals, notes and records from the two Assessments, and letters between counsel and various other sources, some dating back over ten years.

[14] Each party was given the opportunity to cross-examine on the Affidavits, documents and viva voce evidence of the other party, and to reference specific documents contained in the Document Briefs filed.

[15] The Applicant also offered the evidence of Ruth Lovell, the former principal of Audrey’s school, and Dr. Carolina Montiveros, the child’s former paediatrician.

[16] The Respondent offered the evidence of Dr. Philip Squires, the child’s former paediatrician, and Dr. Susan Hiscock, the child’s present family doctor.

[17] A jointly retained expert, Dr. Daniel Ashbourne, was called to offer his evidence. Dr. Ashbourne had undertaken two assessments: a Mental Health Assessment Report in August 2015 and a Custody and Access Assessment Report in July 2019.

RELEVANT FACTS and FINDINGS – Decision-Making Responsibility

[18] The parties met and dated for a brief period of time in 2011. Their relationship ended before the birth of their only child, Audrey Mae Bossence-Mosher, born February 20, 2012.

[19] At the time of their relationship, the parties both lived and worked in Guelph, Ontario and had for over 20 years.

[20] The Applicant is a licensed Financial Planner and is self-employed through D’Arcy Mosher Financial Consultants Inc.

[21] The Respondent was employed as an Educational Assistant with the Upper Grand District School Board.

[22] Following the end of the relationship, the Applicant commenced an Application in Guelph Superior Court of Justice.

[23] The parties consented to a final order on March 4, 2014. For the purposes of this proceeding, the terms included that:

• the parties would share custody (now referred to as decision-making responsibility) of the child, Audrey

• the Applicant would have parenting time with the child on a graduated schedule eventually leading to what is commonly known as a 2-2-3 schedule, wherein the child would be in the care of each parent for two days through the week and on alternate weekends from Friday to Monday

• some specified shared holiday time, including Christmas, vacation time, Father’s Day and Mother’s Day

• either parent could communicate with the child once per day and the child would have contact with either parent as she wished

• each parent would sign all documentation to facilitate the other parent’s right of information and communication with third parties involved with the child

• the Respondent Mother would be entitled to move hers and the child’s residence to Stratford, Ontario

• the Applicant Father would pay child support to the Respondent and his proportionate share of the child’s special expenses, based on an annual income of $114,574

[24] Pursuant to the order, the Respondent relocated to Stratford with the child, Audrey, in 2014.

[25] The Applicant claimed that, immediately after the consent order, the Respondent began interfering in his parenting time and attempting to negatively impact his relationship with Audrey. He claimed that the Respondent failed to comply with the terms of parenting time; was critical of him in the presence of the child; was unfairly critical of his parenting; refused to refer to him as “Dad” to Audrey; and delivered Audrey unfed and disheveled for his parenting time.

[26] The Applicant then commenced a Motion to Change the final order, some five months after the order. The Applicant did not seek, at that time, to change the shared decision-making but sought terms aimed at addressing the parenting time issues he had identified.

[27] The Applicant also asked for an Assessment focusing on the Respondent’s mental health. The Respondent agreed, and an order was made that the London Custody and Access Centre undertake an Assessment. The Assessment was completed in August 2015.

First London Custody and Access Assessment

[28] The London Custody and Access Project prepared its first report on August 11, 2015. It was authored by Dr. D. Ashbourne and Ms. C. Smith. The Report was referred to as a Mental Health Assessment Report. The purpose of the report was stated as an assessment of the mental health of each parent to determine any issues of concern relating to the existing shared custody arrangement.

[29] The Report did not identify any concerns relating to the mental health of either parent. The Report described both parents as engaged, capable, knowledgeable, thoughtful and child focused. Several recommendations were made to assist the parents in addressing the conflict, suspicion and mistrust that was impacting their ability to co-parent.

Move to Stratford and Temporary Change to Order

[30] By 2016, the Applicant also relocated to Stratford, once the Respondent had committed to living and working in Stratford.

[31] By December 22, 2016, the parties had agreed to amend the March 2014 Order on a temporary basis, to provide for the following:

• the parties would share week-about parenting time with the child, Audrey

• the party not exercising parenting time would have a dinner visit on Monday from after school or 4:00 p.m. to 6:45 p.m. The visits would move to Tuesday if Monday was a holiday or PD Day and would not occur in the summer months;

• the parties would begin using the parenting App, Our Family Wizard (“OFW”) for all non-urgent communications;

• the parties would have telephone contact with Audrey each Sunday and Wednesday, for a maximum of 10 minutes. Audrey’s contact with either parent would not be limited;

• both parties could attend all activities and appointments for the child, some separately, all appointments would be diarized on OFW and all consents provided, to allow communication with all service providers.

Second London Custody and Access Assessment

[32] In early 2018 the parties consented to a transfer of their file to the Stratford Superior Court.

[33] On July 11, 2018, the parties consented to an updated assessment.

[34] The London Family Court Clinic prepared its second report on July 9, 2019. It was authored by Dr. D. Ashbourne and Mr. Randal David. The Report was referred to as a Custody and Access Assessment Report.

[35] The Assessors concluded that the child, Audrey, loved both of her parents and enjoyed her time at both of their homes. They did identify that Audrey was exposed to the conflict between her parents. The matter was described as highly conflicted, with the parents being unable to agree on anything. The observation was made that the child, Audrey, was aware of the conflict and sometimes was able to manipulate it to her advantage. The circumstances were described as complex.

[36] The Assessors recommended a continuing shared parenting regime, with each parent making decisions while the child was in their care. They recommended some divided parenting, such as the choice of Audrey’s dentist (Respondent) and doctor (Applicant). The Assessors recommended a parenting coordinator with the ability to make final decisions if the parties could not agree.

[37] The Assessors concluded with the observation that this was not a case involving abuse or coercive control, despite how either parent characterized it. The Assessors discouraged this form of characterization by either parent and recommended counselling to assist in this process.

[38] Counselling was recommended for the child, Audrey, as guided by her doctor, to have a safe third party to talk to regarding the conflict between her parents.

Dr. Ashbourne

[39] Dr. Ashbourne was summoned to testify as a joint litigation expert. His qualifications were not disputed.

[40] Dr. Ashbourne objected to being asked for his opinion on any matters. He advised that his retainer provided that he was a fact witness only and that he had not been prepared as an expert witness. He advised that his retainer did not extend to court appearances, at this time, and that he objected to being summoned to attend.

[41] Dr. Ashbourne cautioned that both Reports were aged and of very limited assistance. He testified that he had not met with Audrey for over four years and that children change, and any opinion or observation would have limited value. He testified that any update was best provided by the parents, as to whether they were able to overcome their differences.

[42] Dr. Ashbourne did agree that the tests he undertook resulted in very similar findings for both parents and that all were within normal ranges.

[43] Questions to Dr. Ashbourne from counsel for the Applicant focused mainly on comments made by the Respondent, during the Assessment, about her employment. The Assessment was obviously not related to the child support issue and I did not see the Assessment process as a helpful venue for child support related evidence.

[44] Dr. Ashbourne ended by encouraging the parents to make use of support networks and counselling to learn strategies to problem-solve against the impact of their conflict on their child. He encouraged the parents to work on problem-solving around the best interests of the child and on keeping the focus on Audrey and her needs and how their actions could impact her.

[45] I found the testimony of Dr. Ashbourne of little assistance, with the exception of his wise counsel to the parents.

[46] There are, however, two extensive Assessments, over a range of five years, which conclude that both parents are effective, talented, child-focused parents who both share a close relationship with their daughter and want what is best for her. The Assessments highlighted the importance of shielding the child, Audrey, from the conflict and seeking out ways to improve co-parenting.

[47] In June 2021, the court declined to order a further update to the Assessments, noting that the parties had failed to implement any of the recommendations from the previous Assessments. The court also declined to order a Voice of the Child Report, finding that the issues relevant to her views and preferences, being the parenting time issues, had been resolved and that the remaining issue, decision-making responsibility, was not an issue which Audrey should be asked to determine or comment on.

Audrey’s Present Circumstances

[48] The child, Audrey, is almost 12 years of age.

[49] She is in Grade 6 in French Immersion education at École Bedford Public School in Stratford. She is reportedly doing well in school. Her final Grade 5 Report Card was offered in evidence. The Respondent testified that Audrey had done better than even she expected, and she was very proud of herself. She had worked hard through the year, with her peers.

[50] By Grade 7, Audrey will be moving to middle school and a decision will be required as to what school she will attend.

[51] Audrey was reported to have established a good circle of friends.

[52] The Applicant described Audrey as “doing better than ever in school and socially and appears to be very happy”.

[53] The parents have agreed on several extracurricular activities for Audrey, which include Girl Guides, camp, swimming and singing lessons.

[54] Audrey was described as healthy with no health issues aside from an allergy to dust mites.

[55] Audrey’s family doctor has been Dr. Susan Hiscock, since 2016. She reported that Audrey has had no health issues for years and that she last saw Audrey in person for a routine appointment in November 2018. She has had some virtual appointments and inquires since then, for minor issues.

[56] Both parents acknowledged the close relationship between Audrey and her other parent.

[57] Both parents agreed that the week-about parenting schedule has been working well.

[58] Both parents agreed that Audrey would remain in French Immersion, at this time.

[59] Various professionals have recommended counselling for Audrey. The Applicant testified that he was not opposed to Audrey attending for counselling if both parents were involved in the process. He did not personally think that she needs counselling at the present time, as she is doing well.

FINDINGS

[60] Based on the evidence as a whole, I conclude, firstly, that the child, Audrey, is fortunate to have two capable, caring, talented and hard-working parents who understand her needs and are dedicated to supporting her and meeting her needs.

[61] I do not find any basis for concluding that either parent lacks in their ability to parent Audrey well or to fully and effectively meet her needs.

[62] The issue in this case is not the ability of either parent to parent, but the continuing high level of animosity and mistrust between the parents, resulting in an inability of either to support the other or to co-parent with the other.

[63] As indicated above, the evidence of both parties consisted largely of descriptions of incidents and supporting documents intended to illustrate how badly the other parent has behaved in various settings over the past nine years.

[64] Particularly in relation to the Applicant, he has been relentless in his pursuit of extensive documentation from multiple organizations involved with Audrey. I find the documentation sought, and offered as evidence, related less to advancing Audrey’s interests and more to gathering evidence to use against the Respondent in this protracted litigation.

[65] There was plenty of evidence to support the narrative of both parents.

[66] The Applicant’s focus was on illustrating how the Respondent has excluded him from decision-making and sought to influence third parties involved with Audrey, and to advance her narrative that he was abusive and controlling.

[67] The Respondent’s focus was on illustrating how the Applicant attempted to control every decision she made relating to Audrey, and how his controlling approach made it challenging to make decisions to assist Audrey. The Respondent alleged that most decisions she makes relating to Audrey are questioned and legal intervention often followed.

[68] What was most apparent and troubling from the whole of the evidence was the repeated attempts by both parents to enlist and influence almost all professionals involved in Audrey’s life, to advance their own narrative relating to the other parent. This has resulted in professionals either withdrawing from their involvement with Audrey or having their ability to effectively serve Audrey compromised by the conflict between the parents. Some examples will suffice.

[69] Minutes of a meeting between the Respondent and school staff disclosed that the Respondent had registered the child, Audrey, in counselling on two occasions and intentionally did not disclose or consult with the Applicant. The school officials had been asked not to disclose the information and were placed in a difficult position when the Minutes were released, in error, to the Applicant.

[70] The Respondent testified that several professionals had recommended counseling and that the Applicant was not cooperating, so she made the decision to arrange the counselling without consultation.

[71] The Applicant alleged that the Respondent attempted to influence various professionals, including school officials and Child Protection Workers, to confirm that the child was in need of counselling and that the Applicant would not consent. The Applicant was in agreement that the child receive counselling but objected to the lack of consultation. He was also opposed to the form of counselling, through a Domestic Violence Centre, which he viewed as another attempt by the Respondent to advance her narrative that the Applicant was abusive. He viewed it as potentially harmful for Audrey to have her Father portrayed to her as an abuser.

[72] The end result was that Audrey did not receive counselling.

[73] I find that the Applicant was more focused on controlling the process and finding fault with the Respondent than on ensuring that Audrey received counselling.

[74] There was also evidence of conflict between the parents, played out through the school officials, relating to the parents’ volunteer involvement in Audrey’s school. Both parents challenged and accused school officials of not supporting their version of events.

[75] The end result, as illustrated through the evidence of Ruth Lovell, a former principal at Audrey’s school, was that school officials found it challenging to navigate the conflict between the parents and not be drawn into the fray, and to shield the child, Audrey, from the impact of the conflict.

[76] The Huron Perth Children’s Aid Society was contacted repeatedly by both parents, seeking to advance allegations and to obtain reports supporting their allegations. At one point, the Respondent provided a video of Audrey commenting on her Mother and Father. I found that evidence concerning.

[77] The Society made findings in relation to the impact on the child, Audrey, from the conflict between the parents. Eventually the Society advised both parents that their file was closed and that they needed to focus on addressing the discord between them and be mindful of not exposing Audrey to their conflict or involving her in adult issues.

[78] On another occasion, the child, Audrey, was referred to a Paediatrician, Dr. Philip Squires, from another Paediatrician, Dr. Carolina Montiveros. Both were called to testify during the trial. Although Dr. Montiveros testified that both parents were appropriately concerned about the health of their child, it was clear from her testimony that the conflict between the parents was challenging to manage in her practice.

[79] Following the referral to Dr. Squires, the Applicant met with him to discuss Audrey. Following their meeting, Dr. Squires met with the Respondent. The Applicant then met again with Dr. Squires. It was apparent that his demeanour and opinion of the Applicant had dramatically changed following his meeting with the Respondent. In a letter to Audrey’s family doctor, he described the Applicant as varying between “sweet-talking” and “intimidating”. He described the Applicant as “recycling” and exaggerating complaints about the Respondent. He expressed concern that the Applicant would apply the same “toxic controlling style” toward Audrey as he currently did toward the Respondent. In a related report, Dr. Squires referenced a “toxic relation with her father” and anxiety experienced by Audrey, due to her Father. Details of the Applicant’s family were included, which had not been provided by the Applicant.

[80] The letter/report from Dr Squires was, in my view, extremely personal and critical of the Applicant. He drew conclusions that could not have been based on his meeting with the Applicant. It was clear that Dr. Squires’ opinion of the Applicant had been heavily influenced by information provided by the Respondent. The Respondent appeared to have shared her narrative of the Applicant as abusive and controlling. I do not find that this was an intentional effort on behalf of the Respondent to influence Dr. Squires against the Applicant, but that was certainly the result. It was unfortunate that Dr. Squires chose to engage in the “contest” between the parents rather than on the needs of the child.

[81] The Applicant then engaged in a campaign to access all of Dr. Squires’ notes and records and to have the report/letter removed from Audrey’s records. A complaint to the College and a lawsuit followed.

[82] I raise this incident not to make findings as to which parent was at fault but as a further illustration of how the conflict and animosity between these parents spilled over into Audrey’s healthcare. The attention of the healthcare providers was focused more on the conflict between the parents and less on the child, Audrey’s, needs. The actions of the parents, and not the needs of the child, Audrey, led to the child being transferred to two new doctors in a short period of time.

[83] The Applicant’s aggressive response, although understood on one level, may have impacted his ability to have a workable relationship with any of Audrey’s subsequent medical professionals.

[84] In relation to Audrey’s family doctor, the Applicant testified that he has not met with Dr. Hiscock for years. He did have an interaction in 2020, when he attempted to obtain Audrey’s medical records. He claimed he was made to wait and treated disrespectfully and was never provided with the records. He threatened legal action.

[85] The Applicant eventually obtained Dr. Hiscock’s records through this proceeding. He claimed that the records indicated that Dr. Hiscock was told things about him which were inaccurate, such as the suggestion that he was being investigated by the Children’s Aid Society. This, he claims, has resulted in a lack of any meaningful relationship with Dr. Hiscock and a complete exclusion from medical decisions.

[86] The Respondent appears to have a positive working relationship with Dr. Hiscock. Regarding the Applicant’s request for Audrey’s medical records, she testified that she has cooperated to the extent requested but that she has no control over the production process.

[87] Dr. Hiscock testified that both parents were appropriately concerned with Audrey’s health. She presented as dedicated to working with Audrey and her parents and as trying to stay removed from the conflict between the parents. In relation to the request by the Applicant for Audrey’s medical records, she testified that the Applicant attended her office at a busy time, making the request challenging at that time. She was not opposed to the records being produced.

[88] On another occasion, the Respondent suspected that Audrey may have pinworms. Audrey did not yet have a family doctor and the Applicant brought her to the Emergency Department and advised the Applicant. The Applicant was critical of the Respondent’s decision to attend at the hospital and would not consent to steps recommended by the attending physician. Without any personal contact with the Applicant, the physician concluded that the Applicant was bullying the Respondent and not allowing her to make decisions for the child. She was described as “beat down, abused and controlled”.

[89] This incident was illustrative of many more occasions wherein the Applicant interfered with otherwise routine decisions made by the Respondent, demanding to control the decision-making process. Here, the Respondent suspected pinworms and decided to have it investigated. The Applicant was advised and rather than allow the medical professionals to address the issue, he insisted on controlling the process and the Respondent.

[90] On the other side, it appears the Respondent again shared her narrative of the Applicant with the medical attendants, something that also was not helpful for Audrey.

[91] Other examples of the Applicant’s interference in decisions by the Respondent included her decisions relating to breastfeeding of Audrey, her choice of babysitters, what she fed Audrey on a day-to-day basis, the decision to have Audrey tested for allergies, and even what nickname she used for Audrey.

[92] There were also occasions when the Respondent did make significant decisions relating to Audrey, such as arranging physiotherapy, when the Applicant should clearly have been consulted.

[93] The same dynamic was present between the parties in relation to extracurricular activities. Each parent has, at times, enrolled Audrey in activities without consultation with the other parent. When advised, the other parent inevitably does not consent and the child, Audrey, is withdrawn from the activity. This occurred when the Applicant enrolled Audrey in a Drama program. A performance was scheduled during the Respondent’s parenting time. The Respondent claimed that she had other plans and Audrey missed the performance.

[94] Audrey’s involvement in dance, swimming, drama and camp, all involved unilateral decisions and disagreements.

[95] Recently the parties have been able to agree to allow Audrey to continue participating in singing lessons, Girl Guides, and camp.

[96] Audrey’s school choice did not escape conflict, with the Respondent unilaterally enrolling her in French Immersion. The Applicant was initially opposed but eventually supportive. It appears the parents are in agreement that Audrey continue in the French Immersion stream.

[97] I find, with respect to some decisions such as extracurricular activities and school enrolment, that the child, Audrey, has reached an age where she is more vocal about her preferences and that the parties are respecting those preferences.

LEGAL CONSIDERATIONS AND POSITION OF THE PARTIES

Material Change in Circumstances

[98] Section 29 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “Act”), provides that:

29 (1) A court shall not make an order under this Part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order.

[99] Section 24(7) of the Act provides that the “best interests” considerations set out in s. 24, apply equally to variation proceedings. In making my determination, then, I must only take into account the best interests of the child, Audrey. This applies to the determination of whether there has been a material change in circumstance, as well as to the resulting order, if I find there has been a change requiring a variation of the final order.

[100] The provisions of the Act, and the extensive body of caselaw that has developed, establish that there is a two-part test in addressing a request to vary a final order:

1. First, the moving party must meet the threshold requirement of proving a material change in circumstances since the making of the existing order, that affects or is likely to affect the best interests of the child who is the subject of the order;

2. Second, if this threshold test is satisfied, the court must undertake a fresh inquiry to determine the parenting terms that are in the best interests of the child, in light of the new circumstances. There is no presumption that the existing order continues to be in the child’s best interests.

[101] Jurisprudence relating to the threshold requirement of material change defines that change alone is not sufficient. Rather, the change must be one that substantially or fundamentally alters or could likely alter the best interests of the child or of a parent’s ability to meet the needs of the child. As well, the change must be long-lasting and not temporary in nature. Lastly, the change must be a change that was not foreseen by the parties or the court when the existing order was made. The question in this regard is whether the order would have been different if the new circumstances had existed when the initial order was made. (See Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27.)

[102] The Court in M.A.B. v. M.G.C., 2022 ONSC 7207, set out a helpful summary of the following principles which have been established in the context of variation proceedings:

1. The element of “change” is key to the analysis of the threshold test in a variation proceeding. The circumstances relied on to support the threshold test must therefore have arisen since the making of the existing order (N.S. v. A.N.S., 2021 ONSC 5283 (S.C.J.); K.M. v. J.R., 2022 ONSC 111 (S.C.J.), at para. 70).

2. The determination of whether there has been a material change in circumstances that affects or is likely to affect the child must logically commence with an analysis of the actual circumstances relevant to the child’s best interests that existed when the order was made. The court should therefore at the threshold stage of the analysis consider the factual grounds and reasons in support of the existing order (K.M. v. J.R., at para. 70).

3. The change in circumstances relied on must relate to the condition, means, needs or other circumstances of the child, and/or the ability of the parties to meet those needs (Gordon, at para. 3; Persaud, at para. 4; Brown, at para. 7).

4. The change in circumstances must also be relevant to the parenting issues in that it affects or is likely to affect the best interests of the child.

5. The threshold test can be met based on a single change or event, or a combination of changes in circumstances (K.M. v. J. R., at para. 70).

6. In addition, in order to satisfy the “change” element, the circumstance relied on must be one that was either not foreseen, could not have been reasonably contemplated by the judge who made the existing order, or was clearly not factored into the decision-making when the order was made (Gordon, at para. 13; Persaud; Brown).

7. A change in circumstances will only meet the threshold test if it is “material” in nature. In order to be material, the change must be such that if it had been foreseen, reasonably contemplated by the judge, or factored into the decision-making at the time the order was made, it would likely have resulted in different terms (Thompson v. Drummond, 2018 ONSC 1975 (S.C.J.), at para. 36; V. v. V., 2021 ONSC 4380 (S.C.J.), at para. 14; A.E. v. A.E., 2021 ONSC 8189 (S.C.J.), at para. 87; K.M. v. J.R., at para. 70).

8. Furthermore, a change in circumstances will only be considered “material” in the context of a parenting order variation proceeding if it is significant and reasonably long-lasting in nature; trivial or short-lived changes will not justify a variation (Thompson, at para. 37; V. v. V., at para. 15; A.E. v. A.E., at para. 88; K.M. v. J.R., at para. 70). The threshold material change in circumstances test is aimed in part at ensuring that the parties do not resort to litigation whenever any change occurs, however minimal (Gordon, at para. 64; Neger v. Dalfen, 2016 ONCJ 751 (O.C.J.)). Not every circumstance, event or mistake by a party that affects a child will be considered a material change in circumstances for the purposes of a variation application. As Gray J. stated in Kerr v. Easson, 2013 ONSC 2486 (S.C.J.), at para. 62, aff’d 2014 ONCA 225 (C.A.), “[p]arents are not perfect and they will make mistakes. The court will not assume jurisdiction to correct every mistake in the guise of a material change in circumstances.”

9. The threshold test can also be satisfied by evidence that circumstances which the parties anticipated would occur did not in fact materialize, or where there were expectations at the time of the order respecting the parties’ future conduct and those expectations did not materialize.

10. A party’s non-compliance with an existing court order can amount to a material change in circumstances for the purposes of the variation analysis if the breaches have affected or are likely to affect the child’s best interests (Kerr; Chin Pang v. Chin Pang, 2013 ONSC 2564 (S.C.J.); Zaidi v. Qizilbash, 2014 ONSC 3652 (S.C.J.); Merkand v. Merkand, 2006 CarswellOnt 712 (C.A.); V.J.S. v. L.J.G. (2014), O.J. No. 2238 (S.C.J.); Roloson v. Clyde, 2017 ONSC 3642 (S.C.J.), at para. 50; M.S. v. D.F.M.A., 2020 ONCJ 497 (O.C.J.), at para. 38).

11. Evidence of conflict between the parties and the child’s exposure to such conflict since the existing order was made may not satisfy the threshold test where the same problems existed when the order was made. (Litman; Goldman v. Kudelya, 2017 ONCA 300; Roloson, at para. 51; Joachim v. Joachim, 2021 ONSC 8584 (S.C.J.)). However, the development of discord between the parties where none existed at the time of the order, or a significant increase in the level of the conflict since the order was made resulting in an outright failure of the existing parenting plan, may meet the threshold test if it has had a negative impact on the child or has affected the parents’ ability to meet the child’s needs (Goldman; Roloson, at para. 51).

12. Changes in the child’s age and level of maturity will not generally in and of themselves satisfy the threshold test for varying a parenting order (Gray v. Wiegers, 2008 SKCA 7 (Sask CA)). However, the test may be met if the child’s needs have materially changed as a result of those factors since the existing order was made, with the result that the terms of the order are no longer in the child’s best interests (Elliott v. Loewen, 1993 CarswellMan 36 (C.A.); Brown, at para. 11; K.M. v. J.R., at para. 70; McMaster-Pereira v. Pereira, 2018 ONSC 7090 (S.C.J.)).

13. The test may also be satisfied if the terms of the existing order or the Reasons for Judgment in support of the order specifically contemplated changes to the order if certain events occurred, and those developments in fact transpired. This could occur, for instance, if the order or the Reasons for Judgment in support of the order specifically contemplated a reconsideration of the parenting terms as the child matured.

14. The caselaw has established that the concept of a “material change in circumstances” in the context of parenting order variation proceedings must be viewed flexibly, so as to accommodate a host of factual developments that may have evolved since the existing order was made (Thompson, at para. 36; A.E. v. A.E., at para. 87) .

Position of the Parties

[103] The Applicant argued that the joint decision-making contained in the March 2014 Order has resulted in years of endless conflict between the parties, with the child, Audrey, consistently placed in the middle, creating stress and anxiety to her. He argued that the Respondent has repeatedly attempted to influence professionals involved with the child, to advance her position that the Applicant is controlling and abusive and unwilling to cooperate with the Respondent on decisions relating to the child. He submits that this has resulted in the Respondent unilaterally making decisions and excluding the Applicant from the process, which is contrary to the interests of the child.

[104] It was the Applicant’s position that the “material change in circumstances” necessary for a change to an order is found in the increasing level of conflict between the parties. He argued that the years of conflict have had a negative impact on the child, Audrey, to the extent that the present shared decision-making needs to be changed to shield Audrey from the impact of the Respondent’s actions.

[105] The Applicant further argued that the Respondent’s ongoing unwillingness to comply with the terms of the March 2014 Order, particularly in relation to medical appointments and information, was further grounds for the need to change the order.

[106] The Applicant argued that the Respondent was conducting herself as if she had sole decision-making and characterizing any opposition by the Applicant to be “abusive” or “controlling”. The result was a high level of conflict whenever the Applicant attempted to enforce the shared decision-making regime. He submitted that the only way to ensure the meaningful involvement of both parents in Audrey’s life, and to reduce Audrey’s exposure to the ongoing conflict, would be to grant the Applicant sole decision-making responsibility.

[107] The Respondent argued that there has been no “material change in circumstances” sufficient to warrant a change to the shared decision-making terms of the March 2014 Order. She submits that, particularly since 2000, there have been few issues between the parties with regard to parenting time or decision-making and that there is no basis to request a change to a long-term status quo.

[108] The Respondent further argued that the Applicant has embarked on ten years of litigation simply to attempt to portray the Respondent as manipulative and controlling while, in the meantime, the child has been doing well in the care of each parent, and no change is required.

[109] The Respondent did amend her claim in 2022 to seek an order for sole decision-making, but only if the trial judge determined that joint decision-making was not workable.

[110] The Respondent argued that if a change is to be made to the joint decision-making regime, that she should be granted sole decision-making responsibility. She claimed that the Respondent constantly scrutinizes decisions she makes relating to Audrey and attempts to control all aspects of her life. She argued that the Respondent regularly makes decisions regarding Audrey with no consultation with her, as he sees fit.

[111] The Respondent submits that the Applicant has mischaracterized the incidents relating to Audrey to portray the Respondent as uncooperative and secretive. She claims that the Applicant actually seeks to control any decision, even those which have little to do with him, such as medical issues while the child is in her care. She argued that the Applicant seeks to blame her for any issues he has with professionals, when she has little control over the decisions they make.

[112] The Respondent submitted that both parents are committed and present very effective plans of care. She submitted that, based on the evidence, an order today would be no different than the March 2014 Order. She argued that there is no reason that either parent should be excluded from decision-making, as both have valuable perspectives to offer to Audrey. She submitted that Audrey is doing well and the parties have been able to make decisions together in the past few years and that few decisions would be required going forward.

[113] The Respondent argued that the reason joint decision-making has not worked is the years of litigation commenced by the Applicant and his determination to “keep going until he gets his own way.”

ANALYSIS

Step 1 – Material Change in Circumstances

[114] The parties in this matter separated before the child, Audrey, was born. Their brief relationship was not described positively by either party. The parties have never had a healthy, functional relationship. They had little time to attempt to establish a parenting relationship before the Applicant commenced the first court proceeding in April 2012, less than two months after the child was born.

[115] The proceeding ended two years later, in March 2014, with the parties agreeing to a final order to “share joint custody” of the child, Audrey. The order has no specific terms as to how “shared custody” would work; what it would look like in practice. There was no evidence as to how the settlement was reached and what factors were considered. There was no evidence as to the expectations of the parties when entering the agreement for the final order. There was no judicial determination to explain the evidentiary basis for the order.

[116] Without this evidence, it is difficult to determine whether the present circumstances represent a change, or whether the level of conflict has simply not abated. However, as indicated in M.A.B. v. M.G.C., 2022 ONSC 7207:

“The threshold test can also be satisfied by evidence that circumstances which the parties anticipated would occur did not in fact materialize, or where there were expectations at the time of the order respecting the parties’ future conduct and those expectations did not materialize.”

[117] Parents generally enter agreements which they believe to be in the best interests of their children. Sometimes they can be wrong. Sometimes their expectations are unrealistic and what unfolds is not in the best interests of the children involved. In such cases, in my view, the change is really the absence of circumstances or behaviors that were expected to flow from the order and be of benefit to the children.

[118] In this case, for whatever reason, the parties appear to have believed that an order for joint custody would translate into behaviors reflecting shared or joint parenting. Both parents care very much for their daughter and certainly would not enter an agreement or consent to an order which they did not believe would be of benefit to their daughter.

[119] As the parties reached this final order without a judicial determination, there is no evidence of what the expectations were or what they were based on. It certainly was not the state of the relationship prior to the order. All evidence points to the fact that the mistrust and animosity between the parties had not changed by the time the order was made and has not abated since.

[120] However, the parties concluded that they could co-parent and entered an order to that effect. Unfortunately, what followed was anything but shared custody.

[121] Within months, the Applicant commenced this proceeding. His Motion to Change material was critical of almost everything the Respondent did. He alleged that the Respondent would not accommodate requests to change parenting time. He was critical of how the Respondent approached exchanges and how clothing and possessions moved between the households. He was critical of how the Respondent was breastfeeding and feeding the child. He questioned who was caring for the child during the Respondent’s parenting time. He questioned how the Respondent referred to him, to the child. He alleged that the Respondent was critical of his parenting. He was critical of the lack of meaningful communication between the parties. He alleged that the Respondent was consulting multiple doctors relating to the child, without his participation.

[122] The Applicant laid the blame for the failed shared custody on the Respondent and alleged that she suffered from mental health issues, resulting in her uncooperative and hostile approach toward him and his parenting.

[123] This Motion to Change was the start of years of litigation, with both parties seeking to prove the other blameworthy for the level of conflict and the lack of co-parenting. Even the attempts to engage professionals to assist, in the form of two Assessments, failed and became another forum for gathering and offering evidence of the other parent’s failure to embrace the spirit of the shared custody agreement.

[124] What the parties failed to do however, in my view, was to seriously address the root cause of the conflict, which was the unresolved animosity between them and the lack of any meaningful relationship, trust or agreement as to what shared parenting should look like and how it would work. They both obviously had very different expectations and interpretations as to what “shared custody” meant. I do not find that either party intentionally ignored or consistently violated the order. I find they fundamentally disagreed in their understanding of what the consent order required.

[125] The parties very quickly fell into a pattern wherein the Respondent would make decisions without consulting the Applicant and, when the Applicant was advised or discovered the decision, he would assert his right to share in decision-making. This generally consisted of either refusing to agree to the decision or engaging in a “forensic audit” of the decision, in an effort to portray the Respondent as being in violation of the shared custody order. The Respondent, then, became less and less willing to engage the Applicant in decision-making, fearing criticism and conflict over every decision.

[126] This dynamic unfolded over the next nine years, as this proceeding wound its way through the legal system, finally reaching trial in July 2023.

[127] Very little had changed by the time the matter reached trial. The parties generally advanced the same arguments and offered the same evidence of the other’s blameworthy conduct and failure to comply with the shared custody regime.

[128] The question then is, does all of this add up to a material change in circumstances? I find that it does.

[129] While the Court of Appeal in Goldman v. Kudelya, 2017 ONCA 300, specifically found that a continuation of conflict does not generally establish a material change in circumstances, the order in that case followed a full trial wherein the court heard details of the level of conflict between the parties. The order was fashioned to address and attempt to reduce the conflict, including provision for the selection of a parenting coordinator. The Motion to Change stemmed from one party not following through with the parenting coordinator. The Court of Appeal considered application of the test as follows:

[41] The conflict here began when the parties separated. It continued throughout the litigation, and it was considered and anticipated by Kaufman J. A continuation of the conflict does not establish a material change in circumstances. This court confirmed this principle in Litman v. Sherman, 2008 ONCA 485, 238 O.A.C. 164, when it found no reason to re-open custody in a situation where “conflict between the parties was, regrettably, the norm”. At paras. 36-37, the court said:

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

[130] I find the situation before me today to be different. The order agreed to by the parties was not fashioned to address the conflict between the parties; it was fashioned despite the conflict. I find that, had the parties truly understood or contemplated what would be required to share custody or decision-making, they would not have entered the final order they eventually entered. Alternatively, they would have clearly defined expectations and requirements on both parties as to how decisions would be made and how each party would be involved. With the level of mistrust between the parties, and with no history of a functional relationship, it would be unrealistic to conclude that the parties trusted each other to co-parent in good faith. They clearly were not of the same understanding as to what they could expect from the order or from the other parent.

[131] I find that the order the parties agreed to may have been in the best interests of the child, Audrey, if what unfolded truly was shared parenting. However, what actually unfolded immediately after the order was not and has not been “shared custody” for the past nine years. As well, there was ample evidence that the child, Audrey, was being directly impacted by the acrimony between her parents.

[132] In his first Assessment in 2015, Dr. Ashbourne noted:

“It is unfortunate that the parental conflict, resentment and suspicion appear to continue, which makes positive interactions, cooperative planning, supportive co-parenting, and negotiation very difficult”. (Exhibit C of Exhibit 20)

[133] In his second Assessment in 2019, Dr. Ashbourne observed:

“Outside of the above noted dynamics, little common ground is present in this highly conflicted family matter that has dragged on for seven years. The struggles have involved various professionals and family members or friends who find themselves caught in the middle and experiencing some of the same tension that Audrey reportedly feels on a daily basis”. (Exhibit D of Exhibit 20)

[134] In declining counselling for Audrey in 2019, the Huron Perth Centre concluded:

“The Custody and Access Assessment completed is thorough and I believe to be valuable information. The recommendations within the assessment should be given heavy weight to create emotional safety for Audrey. Although the recommendations made are numbered that [sic] are not necessarily in order on which they should be implemented. Right order for implementation should be given some thoughtful consideration. The recommendations made to enhance the co-parenting relationship listed on the Custody and Access Assessment should be prioritized and implemented to avoid further stress for Audrey of being caught in loyalty binds between her parents. At a time when parent recommendations have been exhausted individual services for Audrey (counselling and assessment of behavior) should be considered and may very well benefit her social and emotional well-being”.

[135] Clearly what the parties believed and intended when they consented to the final March 2014 Order is not what followed. There never was a ”joint custody” regime. This, in itself, can be, and I find is, a material change in circumstances. The intended order may have been in Audrey’s best interests; what the parties’ aspired to. However, the intention of the order and the expectations of the parties never materialized.

[136] This may have stemmed partially from the lack of specificity in the order, as to terms relating to shared decision-making. The Respondent did not perceive the order as requiring the consent of the Applicant for decisions and resented the Applicant’s persistent inquiries and demands for involvement, information and consultation. The Applicant, on the other hand, appeared to perceive the order as requiring his consent and involvement in almost all decisions and even in consultation with professionals. He demanded details of meetings the Respondent had with school personnel, counsellors and medical professionals, even if they were simply to convey or receive information.

[137] The evidence obtained often detailed decisions made by the Respondent, without consultation or notice to the Applicant, and a portrayal of the Applicant as controlling, coercive and abusive.

[138] If the Applicant did not receive the information requested, he often involved legal counsel and threatened or actually commenced legal action against the professional.

[139] Both parties attempted to engage professionals involved with Audrey to further their narrative and to prove that the other parent was not honouring the March 2014 Order and not “co-parenting” in good faith. Audrey was drawn directly into the conflict, creating anxiety and embarrassment and placing her in the impossible situation of trying to placate each parent when in their care. Professionals involved in her care found themselves focused more on managing the battle between the parties and less on meeting Audrey’s needs.

[140] The end result was an order intended to create a shared parenting regime that would meet Audrey’s needs but that enflamed, instead, already high levels of animus and placed Audrey squarely in the middle.

[141] I find that the complete failure of the expectations of the parties, and the lack of specificity and understanding as to what the order required, constitute a “materials change in circumstances”. The change occurred very early after the order was made. It resulted in a set of circumstances wherein the focus of the parents has been on proving non-compliance by the other party, and certainly not on "co-parenting”.

[142] I further find the level of dissension that has grown between the parties to constitute a material change in circumstances. As indicated above, this order did not appear to be fashioned to address the dissension; it appeared to ignore it. What resulted, then, was an order doomed to fail, and it did.

[143] Whether the “material change in circumstances” was the failed expectations of the parties or the increasing level of discord between them, it became clear that the order, and its implementation (or lack of implementation), was not in the best interests of the child, Audrey, and was negatively impacting her.

[144] I find that the order is no longer, and never really was, in Audrey’s best interests.

Step Two – Fresh Analysis of Best Interests

[145] The question then becomes, what order would be in Audrey’s best interests, based on present circumstances and in light of the “change”? This is the second step in the analysis: a fresh inquiry into the best interests of the child.

[146] While it may be tempting to accept the Respondent’s argument, that the present circumstances show a reduction in conflict and a series of decisions being made and honoured, I do not find that the order or its implementation has now begun to meet Audrey’s best interests.

[147] Based on the evidence of the parties at trial, and their respective positions, the animosity between the parties has not subsided. Neither party was able to say anything positive about the other, with the exception of the Respondent’s observation that both parents had much to offer Audrey.

[148] Audrey is about to turn 12. She has many decisions ahead of her, in which her parents will have a part. She may be increasingly able to influence those decisions and to articulate her “views and preferences”, but I find that leaving the existing order in place would invite a continuation of the conflict and tension which has plagued Audrey for the past nine years.

[149] I find a fresh order is required.

[150] Section 24(7) of the Act requires that any decision on a Motion to Change must be based only on the best interests of the child. While this is in the context of the nature of the change and the terms of the initial order, the determination of the child’s best interests is to be made anew and based on the present circumstances of the child and the parents. There is no presumption that the existing terms continue to be in the best interests of the child.

[151] In considering the best interests of the child, the primary factor, pursuant to s. 24(2), is the child’s physical, emotional and psychological safety, security and well-being. This is the context for consideration of the factors set out in s. 24(3).

[152] Section 18(1) of the Act, defines “decision-making responsibility” as:

[…] responsibility for making significant decisions about a child’s well-being, including with respect to:

(a) health;

(b) education;

(c) culture, language, religion and spirituality; and

(d) significant extra-curricular activities.

[153] Section 28 of the Act, provides:

28 (1) The court to which an application is made under section 21,

(a) may by order grant,

(i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2),

(ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or

(iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);

(b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and

(c) may make any additional order the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

[154] Section 28(4) of the Act provides that the court may allocate decision-making responsibility with respect to a child, or any aspect of it, to one or more persons.

[155] Section 28(6) of the Act provides that unless the court orders otherwise, a person to whom the court allocates parenting time with respect to a child has exclusive authority during that time to make day-to-day decisions affecting the child.

[156] Section 28(8) of the Act provides that unless a court orders otherwise, a person to whom decision-making responsibility or parenting time has been granted with respect to a child under a parenting order is entitled to ask for and, subject to any applicable laws, receive information about the child’s well-being, including in relation to the child’s health and education.

[157] Section 24(3) enumerates a non-exhaustive list of factors relating to the circumstances of a child, including:

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

(b) the nature and strength of the child’s relationship with each 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.

[158] The 2021 changes to the legislative terminologies contained in the Children’s Law Reform Act reflect a more child-focused approach to decisions relating to parenting orders. Regarding decision-making responsibility, the focus is on the role of the parent vis-à-vis the child; the responsibility to make effective decisions which impact the child rather than the rights of the parents in relation to the child. Regarding parenting time, the focus is on the role of the parent while having care of the child; the responsibility to provide effective parenting rather than a parent’s “right” to time with the child.

[159] Along with the changes to terminology is a recognition that decision-making responsibility is not an “all or nothing” proposition, and that the responsibilities can be divided between parents, as is consistent with the interests of the children.

[160] The enumerated factors for consideration confirm that the determination is specific to the facts of each case. The factors provide a framework to consider the unique circumstances of each family and suggest considerations found to be particularly relevant in determining how the child’s best interests can most effectively be determined. The factors provide a helpful framework and focus for considering the facts of each case.

[161] Jurisprudence has also developed and evolved around the determination of decision-making responsibility and parenting time, to guide in the application of the legislative framework. Of particular relevance in this case is the jurisprudence relating to the determination of sole decision-making responsibility versus shared or divided decision-making.

[162] These parents initially made the determination that it was in the best interests of their daughter to share decision-making responsibility on major decisions relating to the child. As indicated above, this is not what has occurred.

[163] If the present order is to change, which I have found it should, then each parent is seeking sole decision-making in relation to major decisions.

[164] There is a history of judicial consideration of the issue of “joint” or shared decision-making versus sole decision-making, and the circumstances in which each is more appropriate. In the end, however, the determination is fact-specific to the particular circumstances of the family before the court. The question is always, what decision-making regime will best serve the interests of the child; their need to have effective, timely decisions made for them, consistent with their unique needs and circumstances. Looked at from the parents’ perspective, which parent is best able to assess and understand the needs of the child and to make decisions that meet those needs, effectively, and with the meaningful involvement of the other parent.

[165] The court in McBennett v. Danis, 2021 ONSC 3610, undertook a review of the caselaw relating to decision-making determination and set out a helpful list of guiding factors that have been identified over time, particularly in relation to joint decision-making:

1. In deciding on the appropriate decision-making responsibility regime, the court is required to consider all possible frameworks, and not simply those proposed by the parties;

2. The ultimate goal in crafting an appropriate decision-making regime is to promote the child’s “right to grow up within a parenting regime that is co-operative and effective, where decisions are made in a child-focused way and with the least amount of acrimony and stress.” (Lafrenière J. in J.B.H. v. T.L.G., 2014 ONSC 3569 (S.C.J.));

3. There is no presumption in favour of granting joint decision-making responsibility to both parties in some or all areas;

4. Joint decision-making in some or all areas should only be considered as an option if the court is satisfied as a threshold matter that both parties are fit parents and able to meet the general needs of the children;

5. In order to grant joint decision-making in some or all areas, there must be some evidence before the court that despite their differences, the parties are able to communicate effectively in the areas under consideration for the sake of the child. The rationale for this principle is that the best interests of the child will not be advanced if the parties are unable to make important decisions regarding the child under a joint decision-making arrangement;

6. The fact that there is some evidence of communication and cooperation does not, however, dictate in and of itself that joint decision-making must be ordered. The trial judge must carefully assess in each case whether the parties’ ability to cooperate and communicate about issues relating to the child is sufficiently functional to support an order for joint decision-making;

7. The court is not required to apply a standard of perfection in assessing the parties’ ability to cooperate and communicate with each other on matters relating to the children. The existence of occasional conflict does not necessarily preclude an order that involves elements of joint decision-making, and the court should consider the entire record of the parties’ communication to obtain a clear sense of the nature and extent of the discord;

8. In assessing the level of conflict and cooperation the question to be determined is whether the nature, extent and frequency of the conflict between the parties is such that requiring them to decide issues jointly is likely to impact on the well-being of the children;

9. In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict;

10. Where the parties are both competent and loving parents, but one of them is the major source of the conflict, this factor may support an order for sole decision-making in favour of the other party;

11. Alternatively, judges have often opted for orders for joint decision-making rather than sole decision-making with one parent in these circumstances, where they have been satisfied that the best interests of the child require a balance of influence and authority between the parties in addressing important parenting decisions;

12. Where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, and that both parties are responsible for this dynamic, joint decision-making is not an appropriate order. This principle applies even where both parties are attentive and loving parents;

13. The quality of each party’s past parenting and decision-making, both during the parties’ relationship and post-separation, is a critical factor in determining whether an order for joint decision-making in some or all areas is appropriate.

[166] As detailed above, these parents have rarely, if ever, made “joint” decisions relating to Audrey. There was rarely, if ever, any consultation between them in relation to decisions. Instead, one or the other would identify an issue and make a decision and the other, when made aware of the decision, disputed the decision or engaged in an analysis as to why the decision and the decision-making process was wrong, often engaging the professionals involved with the decision.

[167] As I also indicated above, I find this dynamic developed, in part, from the lack of specificity in the order, as to what “joint custody” entailed. The order had no detail as to what decisions should be subject to agreement and what process would be used for decision-making. The Respondent acted on decisions she identified were required for Audrey. She did not consult on most. She did advise the Applicant on some decisions. This inevitably brought about criticism and generally denial of the decision. The Applicant, on the other hand, perceived almost every decision to require consultation and consensus, resulting in interference with even the most minor decisions.

[168] I agree with the Respondent that each of these parents has a unique and thoughtful perspective to offer in decisions relating to Audrey. They both understand her needs from that perspective. I also find that both parents are dedicated to Audrey and to her best interests when not engaged in fault-finding as against the other parent.

[169] I also find that the mistrust and discord between the parents increases the risk that if one parent were granted sole decision-making responsibility, the other parent may be excluded from the process.

[170] This creates a common dilemma: ensuring the meaningful involvement of both parents, on one hand, and ensuring decisions are made with the least amount of conflict and negative impact on the child, on the other hand. As jurisprudence has stressed, the most important consideration is that effective decisions are made. It is the right of the child to timely and child-focused decisions, not the right of the parent to make those decisions; that is paramount.

[171] I also agree with the Respondent, that the parties have been able to come to a consensus in several areas of decision-making in the past few years. They agree on Audrey’s school path. They have agreed on extracurricular activities and are supporting those activities. This appears to have come about partially from both parents giving weight to Audrey’s views and preferences in these areas. Audrey enjoys the activities she is engaged in. She enjoys and does well in her school and in the French Immersion stream. The parties appear to be taking a more conciliatory and child-centred approach in these areas.

[172] I find that for the purposes of decision-making in these areas—educational and extracurricular activities—a more defined order outlining the nature of decisions requiring consultation, and a defined process of consultation, could partially address the concerns relating to these decisions. I find it would allow for the participation of both parents in the process but ensure that decisions are identified and addressed.

[173] I do find, however, that a final decision-maker is required. While I acknowledge that the parties have been able to agree, at this time, on Audrey’s educational path and on some extracurricular activities, even those decisions were not without dissension. The parties appear to be considering Audrey’s views and preference more, but even those have been the subject of disagreement between the parties, at times.

[174] I find that in relation to educational and extracurricular activities, the Respondent has illustrated a more child-focused understanding of Audrey’s needs and how they can best be met. At times she has made decisions unilaterally, which has resulted in conflict, but I find that her actions were more out of an effort to prevent conflict than to exclude the Applicant.

[175] It is hoped that the recent reduction in disagreement over educational and extracurricular activities will continue, and that the consultation process will result in consensus on most decisions. However, if agreement cannot be reached, I find that the Respondent is the parent who should make the final decision.

[176] Regarding decision-making in relation to “culture, language, religion and spirituality”, I did not hear evidence of conflict in this area, with the exception of the issue of whether the camp in which the child was registered by the Applicant was a religious-based camp. Although it was in some ways, the parties agreed to Audrey’s attendance, as she enjoyed the camp. I find, in this area, that each parent will share their belief system with Audrey, as they chose, and Audrey will, in time, decide on her own pathway.

[177] I also find that a form of final decision-making is required in the area of healthcare decisions, including with respect to counselling. The evidence disclosed that the conflict between the parties in this area, and the lack of meaningful consultation, has had a serious impact on the child, Audrey. Several healthcare professionals, including Dr. Montiveros and Dr. Squires, withdrew or were excluded from their care of Audrey as a direct result of the dissension between the parties. Some decisions, such as counselling for Audrey, were not made or could not be implemented, as a direct result of the hostilities between her parents.

[178] The Applicant argued that he should have sole decision-making in the area of healthcare (and all areas) because of the many unilateral decisions the Respondent made, to his exclusion. While there were certainly examples of these decisions, I find that most were what would be described as “day-to-day” decisions, which parties are generally entitled to make on their own during their parenting time. These included the Respondent’s decision to follow-up on her concerns about pinworms; her decision to check for allergies; and her decisions about the foods she feeds Audrey when in her care. For all of these decisions, the Applicant insisted that the Respondent was not entitled to make a decision without his consent, which he declined, and then engaged Audrey’s healthcare professionals in the disagreement.

[179] The Respondent claims that the Applicant simply wishes to control her every movement. There is some evidence to support that conclusion. However, I find that the Applicant genuinely misunderstood the requirements of a “joint custody” regime. He appears to have interpreted the order as requiring the Respondent to consult on any health-related decision, regardless of how minor or how well the Respondent could address the issue on her own.

[180] Sharing of healthcare decisions in any shared decision-making regime refers to major or significant, non-emergency decisions. Although this is open to some interpretation as between the parents, I find it clearly would not have applied to many of the decisions to which the Applicant objected or disputed.

[181] Section 28(6) of the Act specifically provides that:

“Unless the court orders otherwise, a person to whom the court allocates parenting time with respect to a child has exclusive authority during that time to make day-to-day decisions affecting the child.”

[182] This does not mean that the other parent is not entitled to be informed of the decisions or provided with details. Section 28(8) provides:

(8) Unless a court orders otherwise, a person to whom decision-making responsibility or parenting time has been granted with respect to a child under a parenting order is entitled to ask for and, subject to any applicable laws, receive information about the child’s well-being, including in relation to the child’s health and education, from,

(a) any other person to whom decision-making responsibility or parenting time has been granted with respect to the child under a parenting order; and

(b) any other person who is likely to have such information.

[183] I have reviewed the extensive evidence offered by both parties in relation to medical and healthcare decisions made by the Respondent. Despite the Applicant’s criticism, I did not find any of Respondent’s decisions to be unreasonable or contrary to Audrey’s interests. I find that the Respondent is in-tune with Audrey’s needs, puts thought into her decisions, and consults with professionals before making decisions. Although it is not acceptable to exclude the other parent from decisions made, the Respondent’s reluctance was understandable in light of the Applicant’s disagreement and criticism of the majority of her decisions.

[184] As indicated above, Audrey is entitled to have decisions made about her health and well-being and to not be caught in conflict over those decisions, especially to the point where some decisions are just not made.

[185] I do not conclude that the Respondent is blameless in the hostilities over Audrey’s healthcare decisions. No parent is held to a standard of perfection. However, I find she has shown an ability to effectively identify and act on healthcare decisions and to work with professionals involved in the child, Audrey’s, care.

[186] The Applicant, on the other hand, has focused more on gathering evidence against the Respondent from professionals involved with Audrey, to the extent of engaging in legal actions against them (Dr. Squires) or threatening legal action (Dr. Hiscock and Dr. Montiveros). The Applicant, I find, is less able to separate his need to be right or to vilify the Respondent from Audrey’s need to receive care, free of conflict.

[187] For these reasons, I find that the Respondent should have final decision-making responsibility for healthcare decisions relating to Audrey, including decisions about counselling. This should be subject to consultation with the Applicant and the Applicant being entitled to receive information from any professionals involved in Audrey’s care.

[188] Given Audrey’s age, being 12 years of age within weeks, she will have more input into healthcare decisions made about her and information shared. I do find that a final decision-maker is still required.

[189] Lastly, the Respondent asked that the parties engage a parenting coordinator to assist in decision-making. Although I find that I do have the jurisdiction, under s. 28 of the Act, to make that order, I do not find that it would be productive in this matter. Consistent with past behaviors, I find there is too much risk that both parties would attempt to enlist or “co-opt” the coordinator to accept their narrative relating to the other parent and to support their version of events. This would leave the coordinator caught in the conflict, as many others have been between these parties. I further find that a measure to reduce conflict could actually create the potential for further litigation, especially on behalf of the Applicant, if he disagreed with a decision of the coordinator.

[190] For these reasons, I decline to make an order for a parenting coordinator. That does not preclude the parties from seeking third-party assistance if they find themselves unable to come to an agreement on a decision.

PARENTING TIME

[191] For the most part, the parties have been able to work out issues relating to parenting time. Both had complaints as to certain issues but orders relating to parenting time have largely been on consent.

[192] The final March 2014 Order provided for a graduated increase of the Applicant’s parenting time up to what is commonly referred to as a 2-2-3 schedule, by February 2015.

[193] The Applicant commenced this proceeding in August 2014, prior to the parties reaching the final stage of the increased parenting time. They did continue to follow the final order.

[194] On December 22, 2016, the parties consented to the following changes to the March 2014 Order, on a temporary basis:

a. that the child, Audrey, would reside with each parent on a “week-about” basis, with exchanges occurring on Fridays at school or 3:30 p.m.;

b. that the child, Audrey, would have parenting time with the parent not having her care, on Monday from after school or 4:00 p.m. to 6:45 p.m. This mid-week visit would not occur during the summer school break and would move to Tuesday if Monday was a holiday;

c. the parent not having care of the child was to have telephone parenting time each Sunday and Wednesday and Audrey would be free to contact the other parent at will.

[195] Exchanges for parenting time were to occur at Audrey’s school or at an access exchange centre.

[196] Exchanges not occurring at the child’s school now occur at the parents’ homes.

[197] The Applicant testified that he did not exercise his telephone parenting time, as he found it disruptive to the other parent’s time. The Respondent continues to access the telephone parenting time.

[198] There were some discussions about the telephone parenting time but no formal request was made to terminate it.

[199] The Applicant asks to change the parenting time in the following ways:

a. implementing a 2-week rotation over the summer school break rather than the present weekly rotation; and

b. terminating the child’s Monday dinner visit with the other parent.

[200] The Applicant testified that the mid-week visit was of little value unless there was a special event. He argued that termination of the visit would reduce the occasions of possible conflict between the parents, during exchanges. He claimed that any requests to change the parenting schedule are rejected, making it difficult to arrange for special events with Audrey.

[201] The Respondent was not in agreement with terminating the mid-week visit. She testified that she believed Audrey enjoyed these visits and that they have generally proceeded well.

[202] The Applicant testified that changing the weekly schedule to a 2-week rotation in the summer months would allow for better vacation planning.

[203] The Respondent was not in agreement with the change.

[204] The changes in parenting time provided for in the December 22, 2016 Order represented a consent interim change to the final March 2014 Order. The parties have followed the terms for the past seven years. The terms will be incorporated into my final order.

[205] Regarding the changes sought by the Applicant, there was no evidence of a change in circumstances necessitating a change in the terms of the interim order. The changes were made on consent and have been followed for years. The Applicant did not offer any evidence of actual conflict between the parties during exchanges. Given the child’s age, any exchange which does not occur at school should not require face-to-face contact between the parties.

[206] The parties agreed that they had had no personal contact since 2012.

[207] Neither party offered material evidence or submissions regarding summer vacations or planning. There is no basis to change the weekly parenting time for the summer months.

[208] The parties are certainly free to agree to further changes to the parenting time, as they have in the past. However, I do not find a basis for changing the long-standing consent order in place now.

CHILD SUPPORT – Imputation of Income to Respondent

[209] The Applicant seeks to have income imputed to the Respondent, in the amount of $45,000 per annum, for the years 2014–2020. He claims that the Respondent was under-employed during this period of time and that she did not maximize her earnings as she is required to do, for the purposes of her child support obligation.

Factual Findings

[210] At the time of the parties’ relationship, the Respondent was employed on a full-time basis as an Educational Assistant with the Upper Grand District School Board (UGDSB). She was then earning around $45,000 per annum.

[211] By 2014, the Respondent had made the decision to upgrade her education and qualify as an accredited teacher. She initially made the decision prior to Audrey’s birth but it was delayed while she was on Maternity Leave.

[212] When the Respondent did move forward with her plan, she reduced her employment to part-time in order to work on her first degree, which she completed in 2014.

[213] At the time the parties resolved the initial Application in 2014, the Respondent was earning around $25,000 per annum through her part-time employment as an Educational Assistant. The Applicant was self-employed with D’Arcy Mosher Financial Consultants Inc. In 2014, he earned around $216,000.

[214] The consent March 2014 Order provided that the Applicant would pay child support of $1,200 per month, based on his stated annual income of $141,574. The Respondent’s income did not factor into the determination of child support.

[215] The consent March 2014 Order provided that the Respondent was entitled to move with the child, Audrey, from Guelph to Stratford. The Respondent had family in the Stratford area who could support her in her parenting.

[216] The Respondent testified that Educational Assistants did not earn significant income and she supplemented her income by working at a camp during the March Break and over the summer months, supporting children with Autism Spectrum Disorder.

[217] In furtherance of her plan to change careers, the Respondent completed a Bachelorette of Arts in 2014. She then completed her Master of Education in 2016. Her Master of Education was earned from Medaille College in Buffalo, New York and was completed on a part-time basis.

[218] Between 2017 and 2022, the Respondent also obtained additional qualifications in various areas. She testified that these qualifications would increase the rate at which she could move up the pay scale as a teacher and increase the positions available to her.

[219] The Respondent testified that once she was permitted to relocate to Stratford, she applied for work with the Avon Maitland District School Board and three other surrounding School Boards, for part-time work.

[220] For the period between 2014 and 2017, the Respondent was employed on a part-time basis as an Educational Assistant at three school boards while she also completed her Master’s degree. She testified that she worked as much as she could, while also caring for Audrey and completing her degree. She testified that this court proceeding was also demanding of her time, particularly the Assessments completed in 2015 and 2019.

[221] The Respondent testified that once she earned her Teaching Certification in 2017, she could no longer work as an Educational Assistant. She testified that she was then required to work as an occasional teacher for a full 10-month period before she would be eligible to apply for long-term contracts as a teacher. She indicated that she was not certified in time to apply for and complete the 10-month period in the 2017–2018 school year.

[222] The Respondent then applied for and was hired at four different School Boards, working as an occasional teacher between 2017 and 2020.

[223] By 2020, the Respondent gained full-time employment as a teacher.

[224] The Respondent testified that, starting in 2018, she encountered several health issues which required a series of surgeries. These stemmed in part from her status as a BRCA2 carrier, making her susceptible to cancer. She also struggled with a gastrointestinal issue which limited her availability to work.

[225] The Respondent provided her medical records which evidenced the serious health issues and procedures she undertook in this period of time.

[226] According to a child support chart provided by the parties, the Respondent’s annual income for 2015 - 2022 was as follows:

2015 – $14,329

2016 – $11,674

2017 – $13,562

2018 – $24,135

2019 – $27,048

2020 – $40,843

2021 – $54,665

2022 – $58,018

[227] The Applicant continued to work full-time during this period. His income fluctuated from a high of $256,954 (2017) to a low of $167,590 (2019).

[228] By 2016 the parties had agreed to a “week-about” parenting time schedule. On October 31, 2016, the parties agreed to change the child support payable by the Applicant, to set-off child support pursuant to s. 9 of the Child Support Guidelines.

[229] From October 2016 forward, then, the Line 15000 income for both parties was used for the calculation of child support payable.

[230] According to the child support chart provided by the parties, the Respondent’s annual income for 2016 was $11,674 and the Applicant’s was $256,027. There was no evidence that the Applicant sought to impute income to the Respondent at the time of the consent interim order.

Position of the Parties

[231] The Applicant seeks to impute income to the Respondent from November 2014 to January 2021, in the amount of $45,000 per annum.

[232] The Applicant claimed that when the parties consented to the Respondent’s move to Stratford in 2014, it was on the understanding that upon her move she would be working part-time initially and then full-time once Audrey began school. He testified that the minimum of part-time work was to ensure that she retained benefits coverage.

[233] The Respondent pointed to various statements made by the Respondent, confirming her plan to return to full-time employment once the child, Audrey, was in school. The Respondent testified that this was her hope but that circumstances changed her plans.

[234] The Applicant claims that, instead, the Respondent left her employment and did not work full-time until 2020, when Audrey had been in school for four years. He argued that the Respondent, by then, had Audrey on alternate weeks and also had her family to support her in childcare, and that there was no reason she could not have been employed full-time.

[235] The Applicant argued that the Respondent’s plan to upgrade and obtain her teaching certification was reasonable but not reasonably executed. He argued that she did not prioritize support of the child over her own preference for part-time work and decisions about her schooling. He submitted that there was no evidence that the medical issues experienced by the Respondent precluded her from working and that she was still able to continue with her volunteer work.

[236] The Applicant claims that the bulk of the financial burden then fell on him, when it was understood it would be more fairly shared.

[237] The Respondent argued that she had taken all reasonable steps to increase her earning capacity and better her financial resources through upgrading her education and qualifications, resulting in her accreditation as a licenced teacher. She argued that she worked as much as she could while parenting, upgrading, dealing with multiple health issues and dealing with ongoing litigation commenced by the Applicant.

Discussion

[238] Section 19(1)(a) of the Ontario Child Support Guidelines, O. Reg. 391/97 (the “Guidelines”) provides that the court may impute income to a parent as it considers appropriate in the circumstances, which circumstances could include their intentional under-employment or unemployment, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse.

[239] The potential imputation of income follows from the obligation on all parents to maximize their earning capacity to ensure a reasonable level of support for their children. Employment decisions and plans are judged in terms of this obligation, with consideration for the interests of the child(ren) over the preferences and wishes of the parent. The standard is reasonableness.

[240] The court in M.A.B. v. M.G.C., 2022 ONSC 7207, set out a helpful list of considerations developed over the years, following the seminal decision of the Court of Appeal in Drygala v. Pauli, 2002 CanLII 41868 (ON CA). The Court of Appeal in Drygala was also addressing the exception provided for in s. 19 of the Guidelines for “reasonable educational needs”. The court in M.A.B. v. M.G.C. indicated:

[483] The Ontario Court of Appeal addressed the issue of imputation of income pursuant to section 19(1)(a) of the Guidelines on the basis of intentional unemployment or under-employment in Drygala and more recently in Lavie v. Lavie, 2018 ONCA 10 (C.A.). Based on those cases and others that have considered section 19(1)(a), the relevant principles for the purposes of this case are as follows:

1. Section 19(1)(a) reflects the principle that there is a duty on the part of parties in a support case to maintain or actively seek out reasonable income-earning opportunities that will maximize their earning potential so as to meet the needs of their dependants (Drygala; Lavie).

2. The analysis required under section 19(1)(a) is threefold:

a) First, the court must determine if the party in question has been deliberately under-employed or unemployed. If the answer is no, then the inquiry is at an end.

b) If the court finds that the party has been deliberately under-employed or unemployed, it must then determine whether this has been required by the reasons set out in section 19(1)(a), specifically the needs of any child or by the reasonable educational or health needs of the parent or spouse. If the court is satisfied that one of these reasons has been established, it cannot impute income to the party.

c) Even if the reasons specifically set out in section 19(1)(a) are not satisfied, the court must then determine if there is any other reasonable basis for declining to impute income to a deliberately under-employed or unemployed party. The court has a wide discretion with respect to imputation of income, and in the context of deliberate under-employment or unemployment situations, this discretion does not extend only to the situations specifically referred to in section 19(1)(a) relating to the needs of a child or the educational or health needs of the party. The exercise of the court’s discretion will turn on the overall reasonableness of the payor’s decisions and actions in relation to their income, taking into consideration all of the relevant circumstances. (Riel; Rilli v. Rilli, 2006 CanLII 34451 (ON SC), 2006 CarswellOnt 6335 (S.C.J.); Tillmanns v. Tillmanns, 2014 ONSC 677 (S.C.J.); Alazari v. Alrubaie, 2018 ONSC 3433 (S.C.J.); Duffy, at para. 35; Horbas, at para. 28; Abumatar v. Hamda, 2021 ONSC 2165 (S.C.J.), at para. 28(o)). The assessment of reasonableness in this context must be undertaken under the umbrella of the legislative and policy objectives of support, including the obligation of a spouse to financially maintain their dependants, the importance of ensuring a fair standard of support, and the statutory objectives of spousal support, including the goal of promoting economic self-sufficiency if practicable (Donovan v. Donovan (2000), 2000 MBCA 80, 190 D.L.R. (4^th) 696 (Man. C.A.), at para. 20; Horbas, at paras. 25, 30-31). In assessing the reasonableness of the party’s decisions, the court must also be guided by the principle that parents should not be permitted to arrange their financial affairs to prefer their own interests over those of their children (D.B.S.). A mere desire to have more self-satisfying work may not be considered an acceptable reason for under-employment, but the prospect that less remunerative work may lead to more opportunities for advancement and financial security in the future may be accepted as a reasonable explanation (Mwenda v. Madituka, 2018 ONCJ 503 (O.C.J.); Gibson v. Gibson, 2011 ONSC 4406 (S.C.J.); A.E. v. A.E. at para. 262).

3. The onus is on the party seeking to impute income pursuant to section 19(1)(a) to establish a prima face case that the other party has been deliberately unemployed or under-employed. If this hurdle is crossed, the onus at that point shifts to the other party spouse to satisfy the court that their situation falls within one of the exceptions set out in section 19(1)(a) or is otherwise reasonable and justified (Drygala; Crowe v. McIntyre, 2014 ONSC 7106 (S.C.J.), at para. 31(f)).

4. A party is intentionally under-employed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances. The party is intentionally unemployed when they choose not to work when capable of earning an income (Drygala; Lavie; Duffy, at para. 35).

5. A finding of deliberate under-employment or unemployment does not require evidence of bad faith or an attempt to evade support obligations (Drygala; Lavie; Duffy, at para. 35).

6. The use of the word "intentionally" in section 19(1)(a) highlights that the provision does not apply to situations that are beyond the party’s control (Duffy, at para. 35).

7. In determining whether a party is intentionally under-employed or unemployed, the court should consider the party’s capacity to earn income in light of their age, education, health, work history, the availability of work that is within the scope of the party’s capabilities and the amount of income that the party could reasonably earn if they worked to capacity (Marquez v. Zapiola, 2013 BCCA 433 (C.A.); Lawson v. Lawson, 2006 CanLII 26573 (ON CA), 2006 CarswellOnt 4789 (C.A.); Drygala; Tillmanns; King v. King, 2019 ONCA 950 (C.A.); Willms v. Willms, 2020 BCCA 51 (C.A.)). A party who is well educated and skilled and has no compelling reasons for not working or not putting in sufficient effort to work risks being found to be intentionally unemployed (Korwin; Bemrose v. Fetter, 2007 ONCA 637 (C.A.)).

8. The fact that a party is receiving social assistance or disability benefits does not bind the court in determining a party’s income for support purposes. The court must carry out its own assessment of the party’s income based on all of the evidence to determine whether an imputation of income is appropriate (Pontius v. Murray, 2011 CarswellSask 679 (C.A.); Poursadeghian v. Hashemi-Dahaj, 2010 CarswellBC 2740 (C.A.); Coad v. Coad, 2017 ONCA 173 (C.A.), at para. 11; Kinsella).

9. A self-induced lack of income or reduction of income with no realistic prospect of future financial advancement may constitute grounds to impute income to a party on the basis of deliberate under-employment. Accordingly, the court may find the party to be intentionally under-employed or unemployed and impute income where the party has persisted in un-remunerative income-earning activities, or where they have pursued unrealistic or unproductive career aspirations (Hanson v. Hanson, 1999 CanLII 6307 (BC SC), 1999 CarswellBC 2545 (S.C.); Drygala; Donovan; Lawson; Blake v. Blake, 2000 CarswellOnt 2477 (S.C.J.); Abballe v. Abballe, 2014 ONSC 4244 (S.C.J.), at para. 39).

10. The court may also impute income to a party under section 19(1)(a) if the party ceases their employment or other income-earning activities for selfish or bad faith reasons (Ronan v. Douglas Walsh (1994), 1994 CanLII 3826 (ON CJ), 5 R.F.L. (4^th) 235 (Ont. Prov. Div.), or if they engage in reckless behaviour or professional misconduct which affects their income-earning capacity (Rogers v. Rogers, 2013 ONSC 1997, 2013 CarswellOnt 4068 (S.C.J.); Costello v. Costello, 2012 ONCJ 399 (O.C.J.); Aboagye v. Sakyi, 2012 ONCJ 56 (O.C.J.); Tillmanns; Scott v. Chenier, 2015 ONSC 866 (S.C.J.), at para. 48)).

[241] I start with consideration of the Respondent’s plan to upgrade her education and earning potential, to eventually seek accreditation as a licenced teacher. I find that her aspirations were reasonable and ultimately in the long-term best interests of the child, Audrey. The Applicant did not dispute the reasonableness of the Respondent’s plan. His objection was to the implementation of the plan.

[242] While the Respondent had expressed certain expectations as to how long the process would take and when she may return to full-time employment, they were just that: expectations.

[243] I find that the circumstances that intervened changed these expectations. I accept the Respondent’s evidence that she applied for and obtained all of the part-time work she could reasonably undertake, while pursuing her studies. She was able to successfully complete her Bachelorette and Master’s degrees, at a high level of achievement.

[244] I also accept the Respondent’s evidence that circumstances intervened following completion of her degrees, which delayed her obtaining full-time employment in teaching. These included a delay in meeting the requirement of a minimum period of occasional teaching; her childcare responsibilities; and the serious health issues she encountered. I find that the Respondent took all reasonable steps to maximize her earnings, within the context of these circumstances.

[245] I do not find that the Applicant offered any evidence that the Respondent chose to work less than she reasonably could be expected to, in the circumstances, or that there was employment that she declined unreasonably.

[246] I find the Respondent’s education plan was not only reasonable but it was successful in increasing her present income, above any income she had earned prior, and has placed her in the position to move up the pay scale for teaching at an accelerated pace.

[247] The income which the Applicant seeks to impute was income earned by the Respondent as a full-time Educational Assistant, with additional supplementary employment. This is inconsistent with the expressed and accepted plan of the Respondent to move from employment as an Educational Assistant, which had little prospect of increased earning capacity, toward accreditation as a teacher, which did represent a long-term increased earning capacity. The plan required some short-term reduction in income to achieve the ultimate goal. I find the steps taken by the Respondent toward this goal were reasonable and child focused.

[248] The amount which the Applicant seeks to impute is also inconsistent with the fact that, at the time the parties moved to a week-about parenting schedule in 2016, and the Respondent’s income became relevant to the quantum of child support, the Respondent earned only $11,000. There was no evidence that the Applicant sought to impute income to the Respondent at that time, when the change to his child support obligation was agreed to. The Applicant knew that the reduced income resulted from the Respondent’s implementation of her educational and vocational plan.

[249] For all of the above reasons, I decline to impute income to the Respondent for any of the years between 2014 and 2020, as requested by the Applicant.

CHILD SUPPORT – Exclusion of Capital Gains from income

[250] The Applicant seeks an order excluding capital gains which he earned in 2016 from his income for support purposes. The capital gain resulted from the sale of a portion of his business interest.

Factual Findings

[251] The Applicant deposed that in 2016 he sold part of his business, D’Arcy Mosher Financial Consultants Inc., to a partner in the business, in order to raise funds for his intended move to Stratford and to increase his earning potential. He sold 49% of his shares in the business.

[252] The Applicant testified that he used the funds as follows:

• paying rent in two locations while transitioning his home from Guelph to Stratford;

• $15,000 into Audrey’s RESP;

• $26,000 for a new vehicle due to increased travel for his employment;

• $54,840 for a new death benefit insurance policy (bought from his corporation);

• $100,000 critical illness insurance policy for Audrey (monthly payments);

• $40,000 in repair costs to his Guelph home to prepare for sale;

• $373,000 for the purchase of his new home in Stratford;

• $50,000 in upgrades to his Stratford home;

• increased payments for health spending after the Respondent lost her benefits; and

• reinvesting into retirement savings.

[253] The Applicant argued that the sale of his shares was necessitated by the Respondent’s move to Stratford and his decision to live close to and be able to co-parent his daughter. He argued that the transaction was isolated and not a part of his business, and that it did not increase his standard of living or resources available. He argued that he has always consistently provided support to Audrey, as required by the Guidelines. He submitted that this was an appropriate circumstance, and that it would be most fair under the Guidelines, not to include the capital gain in his income.

[254] In addition to his submissions that the capital gains should not properly be included as income, the Applicant also claimed that there was an agreement between the parties that the capital gains included in his Line 15000 income for 2016 would not be included as income for support purposes. As evidence of the agreement, he produced a series of communications between the parties’ lawyers.

[255] The initial communication consisted of a letter from the Respondent’s lawyer, dated October 26, 2017. With regard to the Applicant’s income for support purposes the letter stated:

“We are overdue for the annual support adjustment. D’Arcy’s Line 150 income for 2016 is $498,512.00. His carrying costs of $330 are properly deductible pursuant to Section 8, Schedule III of the Guidelines, making his income for support purposes for 2016 $498,182.00. Section 6 of Schedule III indicates his capital gains should be included in his income. The Guideline amount for one child for his income is $3,840.00. Angela’s income was $11,673.00. The Guideline amount for one child for her income is $34.00. I would be prepared to concede that Angela should be earning at least $25,000.00 per year for the purposes of support, thereby increasing her support obligation to $200.00. The set-off amount would thus be $3,640.00 per month. With this level of child support being paid I would be prepared to recommend to my client that agreed-upon Section 7 expenses be shared equally until the next support adjustment. However, I am mindful of the provisions of Section 4 of the Guidelines. Accordingly, if you can provide clear and compelling evidence that the table amount is inappropriate, please advise me. If we cannot come to an agreement on the issue of ongoing support adjustment and each’s party’s share of Section 7’s, I will schedule a motion and we can make submissions on the issue.”

[256] The Applicant’s lawyer responded with correspondence dated February 1, 2018. With regard to the Applicant’s income for support purposes, the letter stated:

“My client is prepared to pay child support based on a reported income of $256,027.30. In 2016 my client received a non-recurring capital gain in the amount of $242,485.08 from the sale of his shares in his corporation that is not properly included in income for support purposes. Please confirm that your client is agreeable to Mr. Mosher’s 2016 income being in the amount of $256,027.30.”

[257] The responding email from the Respondent’s lawyer, dated February 23, 2018, stated:

“Upon proof that D’Arcy’s extra income in 2016 was a result of the sale of shares, we will be satisfied regarding his income. Support should then be adjusted according to their incomes. We will not agree to any amount being imputed to Angela, as that has not been the pattern of the parties to date.”

[258] The responding letter to this email, four months later on June 18, 2018, stated:

“Further to Ms. McLeod’s correspondence dated June 16, 2018, please find enclosed Mr. Mosher’s capital gains schedule/attachment for 2016”

[259] The correspondence of June 16, 2018 was not provided.

DISCUSSION

Should the Capital Gains be excluded from the Applicant’s income in 2016

[260] Section 1 of the Ontario Child Support Guidelines sets out as follows:

The objectives of this Regulation are,

(a) to establish a fair standard of support for children that ensures that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation;

(b) to reduce conflict and tension between parents or spouses by making the calculation of child support more objective;

(c) to improve the efficiency of the legal process by giving courts, and parents and spouses, guidance in setting the levels of child support and encouraging settlement; and

(d) to ensure consistent treatment of parents or spouses and their children who are in similar circumstances.

[261] Section 16 of the Guidelines is the starting point for determining income for support purposes. It provides:

Subject to sections 17 to 20, a parent’s or spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.

[262] Capital gains are included in a Payor’s Line 15000 income and are, therefore, presumptively included in income for support.

[263] Schedule III of the Guidelines addresses various adjustments to income determination under s. 16. In relation to the amount to be included in income from a capital gain, s. 6 provides:

6. Replace the taxable capital gains realized in a year by the parent or spouse by the actual amount of capital gains realized by the parent or spouse in excess of the parent’s or spouse’s actual capital losses in that year.

[264] This provision clearly envisions inclusion of capital gains as income under s. 16 but defines the adjustment to be made if the Payor also experiences a capital loss in the same year.

[265] Section 17 allows for a departure from a Payor’s Line 15000 income in a particular year if the court is of the opinion that this would not be the fairest approach, in light of various events, including a non-recurring amount received by the Payor. The court may consider the Payor’s income for the previous three years and determine an amount that is fair and reasonable.

[266] Section 4 of the Guidelines addresses the approach to a determination of child support for a Payor whose income exceeds $150,000 per annum. It provides:

4. Where the income of the parent or spouse against whom an order for the support of a child is sought is over $150,000, the amount of an order for the support of a child is,

(a) the amount determined under section 3; or

(b) if the court considers that amount to be inappropriate,

(i) in respect of the first $150,000 of the parent’s or spouse’s income, the amount set out in the table for the number of children under the age of majority to whom the order relates,

(ii) in respect of the balance of the parent’s or spouse’s income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each parent or spouse to contribute to the support of the children, and

(iii) the amount, if any, determined under section 7.

[267] There is a presumption that annual income over $150,000 should not be treated differently, unless the court considers the resulting amount to be inappropriate.

[268] A body of jurisprudence has developed addressing the inclusion or exclusion of capital gains or other non-recurring payments into income for support. The determination is fact specific, depending on such considerations as the nature of the payment, the frequency of the occurrence, and the impact of the transaction on the Payor’s income and support payments. The balancing of factors looks to determine whether the payment in question should be treated as income for the benefit of the child(ren) or whether fairness would dictate exclusion of the amount because the payment resembles more of an asset than an income source.

[269] The onus is on the Payor seeking to exclude the amount from income against the presumptive inclusion under s. 16.

[270] Some factors that courts have considered include:

• Is the non-recurring gain or fluctuation actually in the nature of a bonus or other incentive payment akin to income for work done for that year?

• Is the non-recurring gain a sale of assets that formed the basis of the payor’s income?

• Will the capital generated from a sale provide a source of income for the future?

• Are the non-recurring gains received at an age when they constitute the payor’s retirement fund, or partial retirement fund, such that it may not be fair to consider the whole amount, or any of it, as income for child support purposes?

• Is the payor in the business of buying and selling capital assets year after year such that those amounts, while the sale of capital, are in actuality more in the nature of income?

• Is inclusion of the amount necessary to provide proper child support in all the circumstances?

• Is the increase in income due to the sale of assets which have already been divided between the spouses, so that including them as income might be akin to redistributing what has already been shared?

• Did the non-recurring gain even generate cash, or was it merely the result of a restructuring of capital for tax or other legitimate business reasons?

• Does the inclusion of the amount result in wealth distribution as opposed to proper support for the children?

(see Ewing v. Ewing, 2009 ABCA 227)

[271] In light of the above considerations, I find that the Applicant has met the onus of proving that the capital gain earned in 2016 should not be considered income for support purposes.

[272] The Applicant established D’Arcy Mosher Financial Consultants Inc. in 2000, to operate his financial planning business. Over the years he has built his book of business and increased the value of his shares. The Applicant has consistently paid child support on employment income earned from the business. There was no evidence that he withdrew funds from the business except to pay himself for services rendered to the business.

[273] The Applicant’s decision to sell some of his equity in the business, he claims, was motivated by several considerations. He wanted to move closer to his daughter, who had relocated to Stratford with her Mother (with his consent) and he anticipated costs associated with that move. He also testifies that he wanted to bring a partner into his business who could increase the book of business and the income he could earn from the business.

[274] The Applicant’s income did increase in 2016 and 2017 but decreased considerably by 2018 and 2019. He testified that this decrease was related to regulatory changes in his industry and not the change in ownership interest in his business. This was not challenged.

[275] The funds received by the Applicant were clearly a return of capital as opposed to a return on capital. The Applicant accessed equity he had built in his business for what I find to be reasonable purposes. This transaction was a one-time event, unrelated to the Applicant’s regular income source. He is not in the business of buying and selling assets. As well, the funds received by the Applicant for the sale of his shares did not result in additional income to him, to increase his standard of living. The funds were used largely to purchase other assets such as a vehicle, insurance policies and his Stratford home, and to increase his retirement savings. Some of the transactions indirectly benefited the child, Audrey, such as the contribution to her RESP, the purchase of insurance policies and health benefits for her benefit, and the purchase and upgrading of the home where she lives with her Father in Stratford.

[276] The Applicant has consistently paid child support based on his employment income, at a relatively high level. This continued after the sale of his shares in his business and was not impacted by the sale.

[277] I find the most fair and reasonable approach to the Applicant’s income for support for the 2016 year would be to exclude the capital gains received by the Applicant and to determine his child support obligation based on his 2016 employment income.

Was there an agreement to exclude Capital Gains from income

[278] While my decision above makes this question moot, I would not have found that there was an enforceable agreement between the parties to exclude capital gains from the Applicant’s income for support for the 2016 years.

[279] As stated in Brady v Kobylt, 2020 BCSC 1953:

[22] There is no question that an enforceable agreement can be reached through correspondence between counsel: Bate v. Smith, 2017 BCSC 1261. If the parties have indicated their intention to contract and the essential terms of the contract, in a form which would be understood by an objective reasonable bystander, the court will find an enforceable agreement has been reached: Lecroix v. Loewan, 2010 BCCA 224, Johnson v. Johnson, 2015 BCSC 1783.

[280] The correspondence between counsel did, in my view, indicate an agreement that upon proof of the capital gain by the Applicant, the Respondent would be content to exclude the gain from income for support purposes. However, the Respondent also made it clear that a term of that agreement would be that income would not be imputed to the Respondent. Just as the funds received from the sale of the Applicant’s shares was not part of a pattern of earning income, the Respondent took the position that an imputation of income to the Respondent was also not part of a pattern in the determination of support payable by the parties.

[281] Nonetheless, the Applicant did seek to impute income to the Respondent for that year and for the four years after. Although I did not ultimately impute income to the Respondent, the Applicant’s request clearly indicated that he did not consider himself bound by the terms of the agreement he sought to enforce.

[282] I find, as a result, that there was either no “meeting of the minds” between the parties as to the terms of the agreement relating to capital gains, or the Applicant elected not to be bound by the agreement in pursuing an imputation of income to the Respondent.

[283] I would not give effect to the alleged agreement.

[284] The parties provided me with a helpful chart setting out the consequences flowing from my decisions relating to the request to impute income to the Respondent and the request to exclude capital gains from the Applicant’s income. The calculations result in a payment of arrears owing by the Applicant to the Respondent, in the amount of $2,437.00. I accept the calculations provided by the parties and will make the order accordingly.

ORDER

[285] For the above reasons, an order shall issue in the terms set out in Schedule ‘A’, attached.

“Justice Sharon E. Hassan”

Justice Sharon E. Hassan

Released: February 13, 2024

CORRECTION NOTICE – February 16, 2024

This endorsement, originally released on February 13, 2024 was corrected and released on February 16, 2024. Changes made are underlined as follows:

• At page 1, para. 2(d) of Schedule ‘A’: “The Respondent shall consider the position and reasons of the Applicant and consult further with the Applicant, if required”…

COURT FILE NO.: FS374/18

DATE: February 13, 2024

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

D’Arcy Mosher

Applicant

• and -

Angela Bossence

Respondent

REASONS FOR JUDGMENT

HASSAN J.

Released: February 13, 2024

DECISION-MAKING RESPONSIBILITY

1. Paragraph 1 of the Order of Fitzpatrick J., dated March 4, 2014, shall be changed to provide that the Respondent, Angela Bossence, shall have sole decision-making responsibility for the child, Audrey Bossence-Mosher, born February 20, 2012, for significant decisions relating to the child, including with respect to:

(a) major, non-urgent healthcare decisions, including dental care and counselling;

(b) major educational decisions;

(c) significant extracurricular activities.

2. Any decisions made pursuant to Paragraph 1 shall be subject to the following terms:

(a) If a decision is to be made in any of the above areas, the Respondent shall notify the Applicant in writing and provide details of the decision and the contact information for any service provider involved in the decision;

(b) The Applicant shall be at liberty to attend with the service providers separately, to obtain information, consult, and provide input;

(c) Within 10 days, or such shorter period as required in the circumstances, the Applicant shall provide a response in writing to the Respondent with his position and reasons relating to the decision;

(d) The Respondent shall consider the position and reasons of the Applicant and consult further with the Applicant, if required;

(e) Only if the Applicant and Respondent are not able to come to agreement, following consultation, will the Respondent be entitled to make the final decision;

(f) The Respondent shall forthwith convey the decision to the Applicant, with details of the decision.

3. The Applicant and the Respondent shall both be entitled to instruct the child regarding culture, language, religion and spirituality.

PARENTING TERMS

4. Notwithstanding the above, each parent shall be entitled to make routine day-to-day decisions with respect to the child when the child is in the care of that respective parent.

5. If the child requires emergency medical care while with one parent, that parent will promptly attend to the emergency and then notify the other as soon as possible of the emergency.

6. The Respondent shall advise the Applicant with respect to any third-party professionals who are involved with the child, including name, address, and phone number of any such third-party professional.

7. The Applicant shall be entitled to all information with respect to the child, directly from any third-party source involved with the child. The Respondent shall sign any releases as may be required for the Applicant to obtain information directly from the third-party source.

8. All non-emergency communications between the parties shall be through OurFamilyWizard. All communications shall be brief, respectful and child focused.

9. The parties shall not use the child to communicate parenting information between the parties.

10. The parties shall not disparage the other party to the child or within her earshot and shall ensure that others are not permitted to do so.

11. The parties shall refrain from discussing with the child, or within earshot of the child, present or past legal proceedings, issues between the parties in any such legal proceedings, or any other conflicts between the parties.

PARENTING TIME

Weekly Parenting Time

12. Paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 15 and 17 of the Order of Fitzpatrick J., dated March 4, 2014, shall be terminated.

13. The parties shall share weekly parenting time with the child, Audrey Bossence-Mosher, born February 20, 2012, on a week-about basis, with exchanges to occur on Fridays at the child’s school or if the child is not in school, the parent releasing the child from their care shall deliver the child to the other parent’s home at 3:30 p.m.

14. The parent not having care of the child shall have parenting time each Monday from after school or 3:30 p.m. until 7:00 p.m., with the parent receiving the child to be responsible for pick-up and drop-off for the parenting time. This weekly parenting time shall occur on Tuesday if the Monday is a holiday or PD day for the child. This weekly parenting time shall be suspended during March Break, Christmas parenting time and during the summer school break.

15. Both parties shall be permitted to have telephone parenting time with the child, Audrey, at either Audrey’s or the other parent’s request, which shall take place at a prearranged time on Sundays and Wednesdays between 4:30 p.m. and 5:00 p.m., or such other time as arranged in advance, and will not exceed ten (10) minutes. Neither party shall prevent Audrey from calling the other parent when Audrey requests it.

Holiday Parenting Time

16. Except as set out below, the weekly parenting time schedule shall continue during all holidays.

17. For Christmas parenting time the child shall be in the care of the Respondent, Angela Bossence, in even numbered years from 3:30 p.m. on December 24th to noon on December 25th, and with the Applicant, D’Arcy Mosher, from noon on December 25th to 4:00 p.m. on December 26th.

18. For Christmas parenting time, the child shall be in the care of the Applicant, D’Arcy Mosher, in odd numbered years from 3:30 p.m. on December 24th to noon on December 25th, and with the Respondent, Angela Bossence, from noon on December 25th to 4:00 p.m. on December 26th.

19. Monday weekly parenting time shall be suspended during the Christmas school break.

20. For March Break, the regular weekly schedule shall continue, with Monday visits suspended.

21. For summer school breaks, the regular weekly schedule shall continue, with exchange times to occur at 5:00 p.m. and Monday visits suspended.

22. For the child Audrey’s Birthday, the parent not having care of the child shall have up to thirty (30) minutes of FaceTime, Zoom or Skype on that day.

23. If the child is not otherwise in the care of the Respondent, Angela Bossence, on Mother’s Day, she shall have the child in her care from 9:00 a.m. to 7:00 p.m. on that day.

24. If the child is not otherwise in the care of the Applicant, D’Arcy Mosher, on Father’s Day, he shall have the child in his care from 9:00 a.m. to 7:00 p.m. on that day.

25. All other terms of the Order of Fitzpatrick J., dated March 4, 2014, shall remain in effect.

CHILD SUPPORT AND SPECIAL EXPENSES

26. Commencing on March 1, 2024, and on the first of each month thereafter, the Applicant, D’Arcy Mosher, shall pay child support to the Respondent, Angela Bossence, for the support of the child, Audrey Bossence-Mosher, born February 20, 2012, in the amount of $1,864.00, pursuant to Section 9 of the Ontario Child Support Guidelines and the Applicant’s annual income of $228,422.00.

27. Commencing on March 1, 2024, and on the first of each month thereafter, the Respondent, Angela Bossence, shall pay child support to the Applicant, D’Arcy Mosher, for the support of the child, Audrey Bossence-Mosher, born February 20, 2012, in the amount of $536.00, pursuant to Section 9 of the Ontario Child Support Guidelines and the Respondent’s annual income of $58,018.00.

28. Commencing on March 1, 2024, and on the first of each month thereafter, the Applicant, D’Arcy Mosher, shall pay to the Respondent, Angela Bossence, the set-off amount of child support of $1,328.00.

29. The Applicant, D’Arcy Mosher, shall pay arrears in child support to the Respondent, Angela Bossence, as follows:

a. The sum of $2,437.00 for the period up to and including May 31, 2023;

b. Such further amount as agreed to between the parties, for the period between June 1, 2023 and February 1, 2024.

30. The parties shall share any Special or Extraordinary Expenses, pursuant to Section 7 of the Ontario Child Support Guidelines, proportionate to their incomes for support purposes. With the exception of medical, dental or optical expenses not covered by benefits, all Special or Extraordinary Expenses shall be consented to in advance in writing, to be claimed.

31. A party incurring a Special or Extraordinary Expenses shall provide the other party with a copy of a receipt for the expenses, within thirty (30) days. The other party shall reimburse their proportionate share of the expense within fifteen (15) days of receiving the receipt.

32. By May 31st of every year, the parties shall exchange their complete Income Tax Returns and Notices of Assessment from the previous year and any other information reasonably required to determine income for child support. On June 1st of each year, commencing in 2024, the amount of child support payable by each party and their proportionate contributions to the child’s Special and Extraordinary Expenses shall be adjusted to reflect changes in the parties’ incomes and the Ontario Child Support Guidelines, based on their shared parenting time.

COSTS

33. In the event that the parties are unable to resolve the issue of costs as between themselves, the parties may provide written cost submissions, as follows:

a. The Respondent shall serve and file submissions within 30 days;

b. The Applicant shall serve and file submissions 30 days thereafter;

c. The Respondent shall serve and file any reply submissions 15 days thereafter;

d. Submissions shall be restricted to four pages, double-spaced and 12-point font, not including Bills of Costs and any relevant Offers to Settle. Reply submissions shall be restricted to two pages.