Hennessy v. Tenpas, 2025 ONSC 731

Court and Parties

Court File No.: FC879/17-01
Date: 2025/02/04
Court: Ontario Superior Court of Justice, Family Court
Applicant/Responding Party: Christal Amanda Hennessy (Self-represented)
Respondent/Moving Party: Bernard Jason Tenpas (Counsel: S. Khot)
Heard: December 16, 17, 18 and 20, 2024
Judge: T. Price

Introduction

[1] The parties, Bernard Tenpas (Mr. Tenpas) and Christal Hennessy (Ms. Hennessy), are the parents of three children, ages 14, 12 and 11.

[2] While cohabiting, the parties’ relationship was tumultuous. There was partying, drinking to excess and drug use. The police were involved on multiple occasions. At one point, after an altercation between the parties, Ms. Hennessy was arrested and charged with assault. She pleaded guilty and received an absolute discharge.

[3] After separating in 2017, they sold their home, whereupon Mr. Tenpas moved to his current residence and Ms. Hennessy moved in with her mother. After a brief stay there, she moved into a house which she rented until May 2022.

[4] Following their separation and litigation, Mr. Tenpas and Ms. Hennessy consented to an order made on November 20, 2018 by Justice A. Mitchell pursuant to which they had joint custody of, shared decision-making responsibility for, and equal parenting time with the children.

[5] While the parties had their post-separation difficulties, they were able to conduct their affairs with respect to the children in accordance with the order until May 12, 2022, when Ms. Hennessy was evicted from the residence she had been renting since 2018.

[6] After considering whether to take the children with her to a shelter, she decided that it was preferable and in the best interests of the children to place them with Mr. Tenpas until she secured a new place to live. The children have remained in Mr. Tenpas’ care since then.

[7] The equal shared parenting time for the children set out in Justice Mitchell’s order also ended when Ms. Hennessy placed the children with Mr. Tenpas due to her lack of housing.

[8] On June 2, 2022, an unrepresented Mr. Tenpas brought a Motion to Change the order of Justice Mitchell. The Motion to Change provided no details about the relief sought, other than to indicate that Mr. Tenpas was seeking to change decision-making responsibility, child support and parenting time.

[9] On June 3, 2022, Mr. Tenpas tried, and failed, to obtain an ex parte order granting him primary decision-making responsibility for the children.

[10] Eventually, Ms. Hennessy filed her Response to Motion to Change and this matter wound its way through the pre-trial system.

[11] This trial was about whether, given the events that have transpired since May 2022, Ms. Hennessy should:

a) lose the authority granted her under the order of Justice Mitchell to participate in decision-making about the children;
b) forfeit or have the parenting time granted her pursuant to Justice Mitchell’s order reduced; and
c) pay an increased amount of child support to Mr. Tenpas.

[12] Of course, for any of these potential changes to be considered, the court must find that there has been a material change in circumstances since Justice Mitchell made her order on November 20, 2018.

The Parties’ and Children’s Circumstances Since May 2022

Mr. Tenpas and the Children

[13] After receiving the children from Ms. Hennessy in May 2022 following her eviction, Mr. Tenpas and the children have been residing in the single-family residence where he has been living since 2018. Each child has a separate bedroom. No one else, apart from Mr. Tenpas and the children, resides there.

[14] In the immediate aftermath of the children coming into his care, Mr. Tenpas maintained their school placements, which were based on the location of Ms. Hennessy’s former residence, until the end of the 2021-2022 school year. That September, the children began to attend schools serving the catchment area which includes Mr. Tenpas’ residence. The parties’ eldest daughter has begun attending secondary school.

[15] According to Mr. Tenpas, both he and Ms. Hennessy are listed with the school as contacts. He designated himself as the primary and Ms. Hennessy as the secondary contact. He indicated that, although he has not taken any steps to restrict Ms. Hennessy’s contacts with the school, he did request that she not be permitted to remove the children without his consent.

[16] Mr. Tenpas has also been in charge of the children’s medical care. He was able to have the children accepted as patients of a new family doctor when their previous one closed his practice.

[17] The parties’ middle child has recently been diagnosed with autism. Mr. Tenpas has registered him with the Ontario Autism Program, and he receives support and assistance from his school in the form of an Individual Education Plan (IEP) and a learning support teacher.

[18] The youngest child, who suffered from strokes at the age of 5, remains under the care of a specialist and is checked regularly. Acknowledging that Ms. Hennessy was involved at the time the youngest child’s strokes were diagnosed, he reported that Ms. Hennessy has had no ongoing contact with the specialist since May 2022. [1]

[19] Mr. Tenpas schedules all medical appointments, including specialist appointments for the youngest child.

[20] Mr. Tenpas has been unemployed since the end of 2022. He previously worked in the construction industry for a homebuilder but was laid off during the Covid pandemic. His primary source of income is now Ontario Works. He also does woodworking as a hobby and hopes to develop a business selling charcuterie boards.

Ms. Hennessy

[21] Despite life having been somewhat chaotic and difficult for Ms. Hennessy since May 2022, she testified that she regularly attended school meetings about the children in 2024, after having missed some in 2023 because Mr. Tenpas did not tell her about them, a claim he did not deny.

[22] Her parenting time since being evicted has occurred whenever she was available and had a place for it to occur. That has meant that there have been occasions when she has not seen the children for periods of longer than a month.

[23] She has experienced a mixture of residential arrangements since May 2022.

[24] Immediately following her eviction, Ms. Hennessy stayed with a friend for about 6 weeks, after which she moved in with her mother, Patti-Ann Sim, at the end of June 2022.

[25] While residing with her mother, Ms. Hennessy exercised midweek after-school and weekend parenting time with the children.

[26] Ms. Hennessy’s residence with her mother ended when, on October 30, 2022, they had an argument that resulted in her mother telling her that she had to move out.

[27] Ms. Hennessy’s mother described the circumstances surrounding her decision to tell Ms. Hennessy to move out. During an event to celebrate Halloween, in which there were many people in her apartment, Ms. Sim and Ms. Hennessy exchanged words. The argument escalated and a blow-up occurred which was witnessed by the children. Ms. Sim described what occurred as “an overreaction from stress.”

[28] In any event, Ms. Sim told Ms. Hennessy that she would have to leave, which Ms. Hennessy interpreted as an order to get out immediately. While Ms. Sim testified that it was not what she intended or meant, by the next morning arrangements had been made for Mr. Tenpas to retrieve the children. Ms. Hennessy moved out of her mother’s apartment not long thereafter.

[29] After leaving her mother’s residence, Ms. Hennessy’s parenting time with the children substantially diminished.

[30] After being unsettled for a brief period, Ms. Hennessy stayed with a long-term friend named Peter over the winter of 2022-2023. While residing with him, she tried to continue exercising her midweek parenting time, but that was problematic because Ms. Tenpas refused to drive the children to her. She testified that, in that circumstance, to visit with the children, she would have had to take the bus both ways to retrieve the children and return them, which would have effectively eliminated any meaningful parenting time.

[31] Mr. Tenpas inferentially corroborated Ms. Hennessy’s evidence that he was not willing to transport the children to her for visits after she left her mother’s residence, testifying that, in the period between May 2022 and October 2023, Ms. Hennessy’s parenting time with the children was limited because “she rarely had the ability to retrieve the children.”

[32] The loss of regular parenting time with the children threw Ms. Hennessy into what she called “a depression.” She attempted to address it with prescribed medication but, with the agreement of her doctor, she stopped taking it because it “made [her] feel like a zombie.” She now uses marijuana instead, a course of self-treatment about which, she testified, her doctor has not expressed disapproval.

[33] Ms. Sim, who described Ms. Hennessy as a “good provider” who never left the children alone or exposed them to inappropriate behaviour, confirmed the effect on Ms. Hennessy of not seeing the children regularly, testifying that Ms. Hennessy “spins” (which I took to mean loses focus) when the children are not around her.

[34] The combination of her depressed mood, the stress she felt from having no fixed address, which meant that she often could not tell Mr. Tenpas where she would be exercising her parenting time, and Mr. Tenpas’ unwillingness to transport the children to visit with her, further resulted in her not seeing the children on weekends.

[35] In March 2023, after leaving the residence of her friend Peter, Ms. Hennessy sublet a bedroom in an apartment on Hill Street which was occupied by the son of a family friend. He and Ms. Hennessy became de facto roommates.

[36] On March 22, 2023, Justice Henderson made an interim order leaving the children in the care of Mr. Tenpas. He also ordered that Ms. Hennessy have parenting time with the children on Tuesdays and Thursdays from 3:30 p.m. to 8:00 p.m. and alternating weekends from Saturday at 10:00 a.m. to Sunday at 6:00 p.m. Lastly, Justice Henderson suspended her obligation to pay child support “pending further order of the court.”

[37] The children visited Ms. Hennessy and stayed overnight with her while she was residing on Hill Street.

[38] On April 27, 2023, Justice Tobin confirmed that the children were to remain in the care of Mr. Tenpas pending further court order. He also ordered that Ms. Hennessy was to have parenting time as arranged by the parties. The times set earlier by Justice Henderson were to be a minimum pending a review once Ms. Hennessy secured suitable accommodation that would allow for the children to remain in her care for extended overnight periods.

[39] In or around late June or early July, 2023, Ms. Hennessy vacated her room on Hill Street when her male roommate began to bother the friends who visited her there. When she began to visit her friends elsewhere, he changed the locks and effectively excluded her from her room. Her exclusion also resulted in her losing the personal effects that she kept there, including personal papers.

[40] Ms. Hennessy then moved in with a friend in St. Thomas for about one month. She had placed her name on shelter lists when she was evicted in May 2022. By this time, her plan was to stay in St. Thomas temporarily, pending her admission into a shelter.

[41] About the same time, Ms. Hennessy met Kenneth Friesen while attending an event near St. Thomas. They began a relationship.

[42] After moving out of her friend’s apartment because of her friend’s drug use, in August 2023, Ms. Hennessy moved in with Kenneth Friesen and his parents, all of whom reside in Aylmer. She has remained there since then.

[43] Concurrently, as a result of orders made by Justice Nicholson on August 21 and 22, 2023, Ms. Hennessy was provided with parenting time:

a) between 3:30 p.m. and 8:00 p.m. on Wednesdays and Thursdays, beginning on August 24, 2023; and
b) from Saturday at 10:00 a.m. [2] to Sunday at 6:00 p.m. on alternating weekends, with the overnight parenting time to occur at the London residence of Ms. Hennessy’s sister Skyla, who had offered her residence for that purpose, beginning on September 9, 2023.

[44] Justice Nicholson’s orders also included a number of other conditions relating to Ms. Hennessy’s behaviours and actions while the children would be in her care, such as being present at all times, not consuming alcohol or drugs, ensuring that she has sufficient food for them [3], and requiring that her primary attention be on them, as opposed to any guests who might attend. Ms. Hennessy testified that these had never previously been issues of concern.

[45] The overnight parenting arrangement at Ms. Hennessy’s sister’s residence worked for a few months. However, problems developed between Ms. Hennessy and her sister’s new boyfriend, resulting in the parenting arrangement ending in December 2023. Ms. Hennessy has had no overnight parenting time since then.

[46] With Justice Nicholson’s change to Ms. Hennessy’s mid-week parenting time from Tuesday to Wednesday, she began to exercise her Wednesday parenting time at the home of her friend Sarah Gardiner. That arrangement also ended, however, in or about November 2023 when Mr. Tenpas emailed Ms. Gardiner to complain that her children were mistreating the parties’ children. [4] He informed her that he did not want the children to return to her residence. Feeling uncomfortable about Mr. Tenpas’ position, Ms. Gardiner reluctantly terminated Ms. Hennessy’s Wednesday parenting time visits at her residence.

[47] On February 21, 2024, as a result of a motion brought by Mr. Tenpas, Justice Henderson made an interim, without prejudice order, one key provision of which granted Mr. Tenpas sole decision-making responsibility for the parties’ children, who are to reside in his primary care.

[48] At some point after Ms. Hennessy’s Wednesday parenting time with the children at the home of Ms. Gardiner ended, she began to have some mid-week parenting time at the residence of a friend named Sheena. That, however, ended in October, 2024.

[49] Fortunately, in July or August 2024, Ms. Hennessy and Ms. Gardiner had reconnected. As a result, Ms. Hennessy’s Wednesday visits resumed at Ms. Gardiner’s residence.

Ms. Hennessy’s Current Parenting Time

[50] At the time of trial, therefore, Ms. Hennessy was exercising only her Wednesday parenting time at the residence of Ms. Gardiner in London. Justice Nicholson’s order of August 22, 2023 prevents her from taking the children out of London without the consent of Mr. Tenpas, so she is prohibited from having any parenting time in Aylmer. A further impediment to Ms. Hennessy exercising any parenting time in Aylmer arises from a term in the order made by Justice Henderson on February 21, 2024 which prohibits Kenneth Friesen from attending any of Ms. Hennessy’s parenting time. [5]

[51] Moreover, because Justice Nicholson’s order of August 21, 2023 requires that Ms. Hennessy’s overnight parenting time take place at the residence of her sister, she has been having no overnight parenting time with the children.

Children’s Aid Society Involvement

[52] Ms. Hennessy has contacted the Children’s Aid Society about Mr. Tenpas’ care of the children more than once. Most recently, her contact was the result of concerns about the parties’ eldest daughter’s mental health, based on an email Ms. Hennessy received from her about her relationship with Mr. Tenpas. She did not tell Mr. Tenpas about the email, expressing concern about how he might respond to learning about it because, according to her, the children are “afraid” of Mr. Tenpas.

[53] Mr. Tenpas acknowledged having been spoken to more than once by Society workers after having been contacted by Ms. Hennessy but, in each instance, after being interviewed, he was told that no file was to be opened. He said that he did not know the content of Ms. Hennessy’s reports to the Society.

[54] He also acknowledged having been involved in a “heated discussion” with the parties’ eldest daughter last year, after which she was said to have spoken to a teacher who reported a concern to the Society. Mr. Tenpas said that the teacher did not speak to him and that the Society did not find grounds to intervene.

Communication Between the Parties Since May 2022

[55] Since their separation, the parties’ communications have been strained and inconsistent.

[56] Mr. Tenpas testified that since May 12, 2022, he has often been unable to contact Ms. Hennessy because of her residential instability. To this he added that she often refused to communicate with him and that she failed to maintain an operational cell phone. He claimed that she had made herself effectively unavailable.

[57] He provided, as an example of Ms. Hennessy’s refusal to communicate, her refusal to provide any information about Mr. Friesen’s criminal history. She has also given him no information about her current residence, whether Mr. Friesen’s parents will allow her to exercise any parenting time there, particularly overnights and, if they will, what the children’s sleeping arrangements would be.

[58] After much prodding by Ms. Hennessy, however, Mr. Tenpas acknowledged that she “may have mentioned” experiencing cell conductivity issues because she currently resides in a rural area.

[59] He also claimed that when he and Ms. Hennessy do communicate in person, she yells and screams at him in the presence of the children, while he remains calm and tries to avoid discussing adult issues. These comments cannot apply, however, to exchanges of the children because he further claimed that there was little interaction between them at those times.

[60] Mr. Tenpas indicated that Ms. Hennessy’s frequent inability to be contacted has left him in the position of having to make decisions for the children without her input. Those communications that have occurred, he said, were the result of Ms. Hennessy communicating through the children. This, he said, made the setting of parenting times and other co-parenting impossible. As a result, he regards the sole decision-making responsibility that he seeks as being a recognition of existing circumstances.

[61] In responding to Mr. Tenpas’ evidence, Ms. Hennessy agreed that she and Mr. Tenpas cannot communicate or co-parent, but she refused to agree with his counsel that this meant that they are, as a result, unable to comply with Justice Mitchell’s order which provides for shared decision-making responsibility.

[62] Ms. Hennessy testified that she was the one who made all of the children’s medical and school appointments before May 2022. She said that Mr. Tenpas now does not involve her in scheduling appointments because he does not want her to be present for them.

[63] When asked about his evidence that he could not reach her by telephone, she responded that the others with whom she currently resides have phones to which she has access but Mr. Tenpas refuses to take her calls if they come from third-party cell phones.

[64] She also indicated that she has access to email but Mr. Tenpas refuses to use it. On this point, according to Mr. Tenpas, because he viewed email communications as being less dependable than communications by text, at his request, Justice Nicholson’s order of August 21, 2023 specifically directed that all communication between the parties be by text message despite Ms. Hennessy requesting that email communications be permitted. According to Ms. Hennessy, she can always access her email. When it was put to her by counsel for Mr. Tenpas that she also does not always respond to them quickly, she said she would set up her phone to notify her when an email has been received.

[65] A further issue about which Ms. Hennessy testified is what she described as Mr. Tenpas’ “abuse” and “bull[ying]” of her, regardless of whether he writes or speaks to her. She described this as having occurred throughout their relationship and said that she refuses to respond to such communications because they make her anxious.

[66] On the other hand, as Mr. Tenpas saw the situation, the factor which aggravates their communications is Ms. Hennessy’s refusal to be polite to him. He cited, as an example, an incident when, during a discussion about the children, where Ms. Hennessy was said to have “stormed off” when he asked her a question, a response that he said was “not rational.” According to him, he asked his question politely.

[67] However, under cross-examination by Ms. Hennessy, who suggested that his manner of speaking to her provoked her, he conceded that he was “sometimes less than civil to her,” particularly when pressing her to answer his questions.

[68] Ms. Hennessy’s evidence, and the concession by Mr. Tenpas, was corroborated to some extent by both Ms. Gardiner and Ms. Sim.

[69] Ms. Gardiner testified that she has read text messages from Mr. Tenpas to Ms. Hennessy which she described as “very demeaning.” She said that Mr. Tenpas “orders [Ms. Hennessy] around.”

[70] Ms. Sim testified that Mr. Tenpas tends to send her texts in which he complains about Ms. Hennessy. She texts him back and tells him to “calm down and think about the children.” She described there being a lot of pettiness over minor issues, with Mr. Tenpas “attacking all of the time.” She cited, without particulars, a recent incident in which she alleged that Mr. Tenpas criticized Ms. Hennessy because of the making of Advent calendars for the children.

[71] When counsel for Mr. Tenpas suggested that she was favouring her daughter, Ms. Sim was clear in her response that, while she regards both parties as being at fault for the current communications difficulties, she regards Ms. Hennessy as “the bigger person” because she is willing to let things go, whereas Mr. Tenpas seems to be unable to do so. As an example, she cited Mr. Tenpas’ claim that the children should not be left alone with her because of the argument between her and Ms. Hennessy on October 30, 2022 because they would be traumatized. He used this rationale to deny her time alone with the children for almost one year thereafter, although he brought them to her apartment 3 or 4 times in that period, where she had to see them in the lobby or in the parking lot. None of this evidence was denied by Mr. Tenpas in his reply.

Kenneth Friesen

[72] Ms. Hennessy’s relationship with Mr. Friesen has become a major issue for Mr. Tenpas because of his reported criminal history.

[73] Upon learning sometime late in 2023 that Mr. Friesen was facing a number of criminal charges, Mr. Tenpas asked Ms. Hennessy to provide him with details about the criminal offences that Mr. Friesen was alleged to have committed. She refused to do so. She explained that she did so because she felt that it was not her responsibility to share that information.

[74] Needless to say, Mr. Tenpas did not react well to Ms. Hennessy’s refusal. To assist Mr. Tenpas in his effort to learn about Mr. Friesen’s criminal history, on January 31, 2024, Justice Korpan ordered Ms. Hennessy to use her best efforts to have Mr. Friesen swear Form 35.1 and 35.1A affidavits. Ms. Hennessy testified that although she had tried, and although Mr. Friesen was prepared to swear the affidavits, it was her understanding that his lawyer told him not to do so. As a result, those forms were not available to the court at trial.

[75] Mr. Tenpas’ concern about Mr. Friesen’s criminal history was addressed by Justice Henderson on February 21, 2024, when he made an interim, without prejudice order prohibiting Mr. Friesen from attending any parenting time with the parties’ children.

[76] The following information was disclosed during the trial.

[77] At the time that Ms. Hennessy and Mr. Friesen began their relationship, he was facing a number of criminal charges, including:

a) charges for sexual offences alleged to have been committed in 2018 against his then-6 or 7-year-old stepdaughter, which were not brought until some years later; and
b) charges related to an altercation between him and a former girlfriend, alleged to have occurred on April 4, 2022. Included amongst these charges are two alleging that he assaulted the two daughters of his former girlfriend during the altercation.

[78] The sexual charges were withdrawn in June 2024, when Mr. Friesen entered into a peace bond, the terms of which require that he not communicate or associate with his former spouse or his stepdaughter for a period of one year.

[79] The charges relating to the alleged altercation with his former girlfriend and assaults of her daughters remain outstanding. They are scheduled for trial in London on September 3, 2025.

[80] According to Ms. Hennessy, Mr. Friesen told her about his charges within two weeks of meeting her. She testified to being initially concerned when she was told about the alleged sexual offences, especially since the alleged victim was a minor female. However, she testified that her concerns were alleviated by reading the disclosure which had been provided to Mr. Friesen and by talking to several people who knew about the charges.

[81] Similarly, despite the other charges not yet having been tried, Ms. Hennessy testified that, while she understands Mr. Tenpas’ concerns, based on what she has been told about the events underlying those charges, as she described them to the court, she is not concerned about Mr. Friesen being around the children.

[82] Mr. Friesen testified on behalf of Ms. Hennessy. That only occurred after I had ordered him to do so. He reported that he had been reluctant to testify because his lawyer had warned him to avoid exposing himself to questions which might compromise the defense to his outstanding charges. He agreed to testify, however, when he was told about the protections provided to him by s. 5 of the Canada Evidence Act, R.S.C. 1985, c. C-5, and s. 13 of the Canadian Charter of Rights and Freedoms.

[83] He is employed as an ironworker. He confirmed that he and Ms. Hennessy reside at the home of his parents in Aylmer.

[84] He has no criminal record and has incurred no new charges since April 4, 2022, the date on which the offences underlying the outstanding charges were said to have occurred.

[85] He spoke about the allegations that had been made against him with regard to both the withdrawn sexual charges and the still-outstanding assault and related charges. He denied that he was guilty of either the outstanding offences charged or those that had been withdrawn.

[86] He also acknowledged three dated charges, all of which were later withdrawn. These included various drug charges in 2009 and 2014, both said to have arisen when he was a passenger in an automobile owned by someone else in which drugs were located, and a mischief charge from 2009, about which he claimed no recall of the facts.

[87] He further disclosed that he had received a 48-hour roadside license suspension about two years ago when he was stopped by the police and was found to have alcohol in his system at a level above .05 mg./ml. but less than .08 mg./ml. His car was not impounded.

[88] Confirming Ms. Hennessy’s evidence about why he had not sworn the Forms 35.1 and 35.1A affidavits, Mr. Friesen orally provided the information requested in them.

[89] Both Ms. Hennessy and Mr. Friesen testified that he has been neither alone with, nor in charge of, the children. He has, however, met them.

[90] The first time was in September 2023, when Ms. Hennessy took them to the Western Fair. At the time, Mr. Friesen’s release conditions on the sexual charges prohibited him from being in the presence of children under the age of 16 without a responsible adult being present. Both felt that Ms. Hennessy’s presence satisfied that condition.

[91] Moreover, between September 2023 and February 21, 2024, Mr. Friesen attended five or six visits between Ms. Hennessy and the children at the residence of her sister. He has complied with the terms of Justice Henderson’s order of February 21, 2024 and has had no contact with the children since then.

[92] Ms. Hennessy also testified that, until the trial, she had never asked to take the children to the home of Mr. Friesen’s parents although, she said, they are willing to have the children visit with her there, an assertion confirmed by Mr. Friesen.

[93] Both Ms. Hennessy and Mr. Friesen testified about having made unsuccessful efforts to have Mr. Friesen meet with Mr. Tenpas to answer his questions or concerns about Mr. Friesen.

[94] After having heard the evidence of Mr. Friesen, Mr. Tenpas testified in reply that he still had concerns about Mr. Friesen being around the children because he still did not know all of the details about the outstanding charges relating to Mr. Friesen’s former girlfriend and the charges of assault against her two daughters. He made no reference to the withdrawn sexual charges.

Child Support

[95] In setting child support in her order, Justice Mitchell accepted the parties’ agreement that Ms. Hennessy had an imputed annual income in 2017 equal to $15,750.00 and that in 2018 she would pay child support in the amount of $210.00 per month to Mr. Tenpas. He in turn would pay $600.00 per month to Ms. Hennessy based on his 2017 income of $32,020.00.

[96] For the years after 2017, in accordance with the parties’ agreement, Justice Mitchell had ordered that Ms. Hennessy would pay child support in an amount equal to the greater of $210.00 and such amount as her annual income would mandate under the Child Support Guidelines, should her annual income surpass $15,750.00.

[97] Neither party could explain the reason Ms. Hennessy had that annual income imputed to her in 2017.

Ms. Hennessy’s Work History

[98] Ms. Hennessy has a history of working as a cleaner, in both residential and commercial settings.

[99] While Mr. Tenpas testified that Ms. Hennessy did not work while the parties cohabited, she testified that she was employed until 2018 by Westervelt College, a now-defunct private career college, earning minimum wage, as a full-time cleaner. She then worked at Fanshawe College briefly, again earning minimum wage, before enrolling in a one-year HVAC technician program at North American Trade School in 2019.

[100] To attend that program, she received an OSAP loan that she thought might have been as much as $20,000.00. She has paid off about $10,000.00, with the income coming through her GST rebate and Trillium grants. She applies regularly for loan payment extensions.

[101] After completing that program and being certified as an HVAC technician, instead of working in that trade she helped a friend to establish a cleaning business. She testified that, although she sought work as an HVAC technician, and that, had she been able to secure employment in that field, she could have earned $25.00 per hour, “no one hires graduates of North American Trade School.”

[102] Her efforts to assist her friend, for which she was paid $20.00 per hour, lasted only one year, ending after a falling-out between the two led to her losing that job. By then, her HVAC technician certification had lapsed. She acknowledged not reporting the income she earned while assisting her friend because the friend did not report paying her. While she acknowledged that she was wrong to not report her income, she did not think that she earned enough money that year to pay income taxes even if the income had been reported.

[103] Sometime in the years between 2018 and 2020, she also worked for about a year cleaning units at a housing cooperative after the occupants had vacated. That job paid $19.00 per hour and lasted about one year. She was on call and worked only when needed. She ultimately left because of her depressed mood over a lack of contact with the children.

[104] During Covid, she received Ontario Works benefits for a period and did some side jobs cleaning. She also received three monthly payments for CERB during the pandemic.

[105] In 2023, her only source of income was Ontario Works.

[106] She failed to produce a financial statement of any documents to support her different income claims, telling counsel for Mr. Tenpas repeatedly that all of her personal effects, including her documents, were lost when she was locked out of the room that she was renting in the residence on Hill Street. While she acknowledged that electronic documents can be replicated, she implied that many of the documents that would have supported her claims were in paper form only.

[107] She did, however, produce her 2021, 2022 and 2023 Notice of Assessment. They showed that her reported income for tax purposes in those years amounted to $13,188.00, $7,718.00, and $9,225.00.

[108] It appears that she has not worked much since moving in with Mr. Friesen and his parents, so it is likely that her annual income in 2024 will ultimately be shown to be less than $15,750.00.

[109] Ms. Hennessy readily acknowledged her obligation to support her children. While not actually child support, she elicited an acknowledgement from Mr. Tenpas that she had paid for their eldest daughter’s membership in the Robotics Club in 2024.

[110] Ms. Hennessy testified that she has applied for many jobs. She said that the only reason she has not been working recently is that she has not succeeded in being hired.

[111] However, she was recently offered a seasonal contract position with Nestle, to work at its ice cream plant in London, conditional on a “satisfactory criminal background check” and the completion of all required hiring documents. The job is scheduled to begin on January 30, 2025 and will end “no later than” September 7, 2025. Hours of work will be set by Nestle, depending on production demands. She will be paid $18.40 per hour. If she returns next year, her rate of pay will be $19.55 per hour. She testified that if she is invited back for a third year, it will be as a full-time employee, but the offer letter that she produced at trial contains no such indication, although after the second-year rate of pay it refers to an hourly rate of pay of $20.90 per hour for a “Seasonal Class 1” employee.

Ms. Hennessy’s Plan

[112] Ms. Hennessy indicated that she has been looking for an apartment in London because the children want to remain here. She anticipates applying for an apartment on King Edward Avenue in early 2025, after she has begun to work at Nestlé.

The Children’s Views

[113] Ms. Sim, the children’s maternal grandmother, testified that she has often spoken to the children about their situation in life, both after the parties separated in 2018 and since Ms. Hennessy lost her residence in May 2022.

[114] Her evidence was that, while the children love both of their parents and have amazing qualities reflective of both, their most fervent wish is that their parents get along. She described the children as feeling “unheard” because of the disputes between their parents.

[115] She also described the children as wanting more liberal parenting time with Ms. Hennessy.

The Parties’ Positions

Mr. Tenpas

[116] Mr. Khot submitted that, because Ms. Hennessy has demonstrated an inability to obtain housing for 32 months, and because it has been difficult for Mr. Tenpas to contact or communicate with her, the children’s primary residence should be with Mr. Tenpas and he should have sole decision-making responsibility. In the alternative, he proposed that Mr. Tenpas have final decision-making responsibility.

[117] He further submitted that there was no reason relating to the children that Ms. Hennessy could not have worked full-time after she placed the children with Mr. Tenpas in May 2022.

[118] Assuming that he obtains primary residence of the children, Mr. Tenpas now seeks:

a) ongoing child support in the amount of $621.00 per month commencing January 15, 2025 and on the 15th day of each succeeding month, based on Ms. Hennessy earning an imputed minimum wage income of $32,250.00 per annum; and
b) arrears of child support accrued since June 1, 2022, based on an imputed income equal to the prevailing minimum wages, totaling $19,245.00 as of December 1, 2024, and payable at the rate of $250.00 per month commencing January 15, 2025.

Ms. Hennessy

[119] Ms. Hennessy proposed that, even if she gets an apartment in London in the near future, the children continue to reside in the primary care of Mr. Tenpas until they complete their current school year.

[120] To that end, she asked that, until she secures a residence in London in which she can exercise her parenting time, she be provided with:

a) weekday parenting time on Wednesdays and Thursdays from 3:30 p.m. to 8:00 p.m. at the home of Sarah Gardiner; and
b) alternate weekend parenting time from Friday at 3:30 p.m., or after school if that is a different time, until Sunday at 8:00 p.m., to be exercised at the home of Mr. Friesen’s parents in Aylmer or such other location outside of London as she might reside.

[121] She also proposed that, after the children’s school year has ended, the parties discuss a resolution of both primary residence and parenting time going forward. Her stated preference is that the children reside primarily with her unless they indicate a different preference.

[122] She also proposed that the children have some say in where they would go to school in September 2025.

[123] Under her plan, Mr. Friesen would reside with her and the children once she secures a residence in London.

[124] She is prepared to pay child support in accordance with her income but asked that I find that she owes no child support arrears.

Discussion

Material Change in Circumstances

[125] The first issue to determine is whether there has been a material change in circumstances since Justice Mitchell made her final order on November 20, 2018.

[126] In Roloson v. Clyde, 2017 ONSC 3642, Justice D. Chappel wrote about the principles articulated by the Supreme Court of Canada as being applicable in a variation proceeding under the Divorce Act [6] and more extensively discussed what was, and what was not, a material change in circumstances. Justice Chappel wrote, in part:

47 … The Supreme Court of Canada held in Gordon [7] that… the judge hearing a variation proceeding cannot simply substitute their discretion for that of the judge who made the existing order. Rather, they must assume that the existing order was correct and consider only the changes in circumstances since the order was made…Accordingly, from an evidentiary standpoint, the court should consider only a limited amount of evidence predating the existing order, for the sole purpose of determining whether a material change in circumstances has been established...

48 The Supreme Court of Canada held in Gordon that …the change relied upon should represent "a distinct departure from what the court could reasonably have anticipated in making the previous order" (at para. 12). The question that the court must consider on a variation proceeding is whether the previous order might have been different had the circumstances now existing prevailed earlier….

49 The case-law that has addressed the meaning of the phrase "material change in circumstances" in the context of child and spousal support variation proceedings has also established that a change will only be considered "material" if it is significant and long-lasting…Trivial, insignificant or short-lived changes will not justify a variation…The preliminary threshold test is aimed in part at ensuring that the parties do not resort to litigation whenever any change occurs, however minimal…

[127] While Mr. Khot touched on the point without expressly saying so, I find that the eviction of Ms. Hennessy in May 2022, her sensible placement of the children with Mr. Tenpas at that time, and her ensuing residential variability, combined, constitute a material change in circumstances. Clearly, when Justice Mitchell made her order, she could not possibly have anticipated that set of circumstances. Moreover, the ensuing months have demonstrated that Ms. Hennessy’s situation is neither trivial nor short-lived. To the contrary, it has been both significant and long-lasting.

[128] While one might, from the perspective of today, say that Ms. Hennessy has had residential stability since the autumn of 2023, the fact is that she wants to return to London because the children want to remain here. That will mean another, hopefully final, change of residence for her. However, until that occurs, and she demonstrates some residential stability in London, the change in circumstances will remain material.

[129] Having determined that there has been a material change in circumstances, I now turn to what changes, if any, should be made to the order of Justice Mitchell to reflect that material change.

Decision-Making Responsibility

[130] The order of Justice Michell was made before the changes to terms such as “custody” in the Children’s Law Reform Act. Now the statute addresses parenting orders that include decision-making responsibility and parenting time.

[131] Justice Mitchell’s order includes two provisions that touch on major decisions about the children.

[132] Paragraph 1 provides that the parties “shall jointly make important decisions relating to the children after consultation with any applicable and appropriate experts available.”

[133] Paragraph 2 provides that the parties “will make important decisions about the children’s welfare together, including decisions relating to the children’s major non-emergency health care, major recreational activities, education and religious activities.”

[134] I can see no difference between a requirement that the parties make their decisions “together” and one which requires that they do so “jointly.”

[135] What is missing from the order of Justice Mitchell is a clause determining what is to be done in situations where the parties are unable to arrive “together” or “jointly” at an “important decision” of the types referred to in Paragraphs 1 and 2.

[136] It appears that, between 2018 and 2022, the parties had no great difficulty making their “important decisions” about the children “jointly” or “together.” If there were, I was not told of them.

[137] Mr. Tenpas testified that it is Ms. Hennessy’s lack of availability to be consulted about major decisions since May 2022 that drives the obvious result that he should have sole decision-making responsibility, since the children now reside with him.

[138] There is no doubt that Ms. Hennessy has been on the move since May 2022. Does that mean that she has been unavailable to discuss major decisions with him? I think not.

[139] According to the evidence, Mr. Tenpas insisted on communicating with Ms. Hennessy by text message because he viewed email communications to be less dependable than communications by text. That is the argument that he used to convince Justice Nicholson to make text the only manner by which the parties communicate.

[140] However, Mr. Tenpas’ views conflict with a term that he agreed to in the order of Justice Mitchell. Paragraph 28 of that order indicates that “the parties shall restrict their communications with each other to email”, “absent any emergency.”

[141] Until Justice Nicholson’s interim order, therefore, Mr. Tenpas’ insistence on using text to communicate was, prima facie, a violation of Justice Mitchell’s order.

[142] Paragraph 29 of the order did carve out a further exception to the use of email as the mandatory means of communication between the parties. That exception consists of “an emergency or another contingency arising that makes the use of email impractical.”

[143] According to the evidence, Ms. Hennessy acknowledged that she does not always respond to her emails quickly. Absent an emergency, why would a “quick” response to an email from Mr. Tenpas be necessary? Mr. Tenpas never addressed that question. In my view, the only explanation for Mr. Tenpas needing a “quick” response to an email, absent an emergency, when a text can be used, is because he wants to put pressure on Ms. Hennessy when he has no need to, and because it gives him one more reason to criticize her when she fails to respond as he demands.

[144] Ms. Hennessy was clear that she would prefer the use of email between the parties. The existing order requires it, absent an emergency or other contingency making the use of email impractical. Mr. Tenpas’ preference for text neither constitutes an emergency nor does it make the use of email between the parties impractical, especially when both have access to it.

[145] As a result, I reject Mr. Tenpas’ argument that he needs to have sole decision-making responsibility because Ms. Hennessy is unavailable to communicate with him about non-emergency matters requiring a decision about the children by text. That is a pretense he has created merely to get his way.

[146] As a result, I see no reason to remove Ms. Hennessy from the decision-making process. Thus, Mr. Tenpas’ preferred resolution to this issue is rejected.

[147] That leaves the second option, which is that Mr. Tenpas (as the current provider of the children’s primary residence) shall have the final right to make a decision in circumstances where the parties, after consultation and discussion, cannot agree. To that, I would add those circumstances where Ms. Hennessy does not respond to Mr. Tenpas’ emailed request for input within a fixed period.

[148] Ms. Hennessy indicated during submissions that she did not disagree with my suggestion that such a clause be included. While I acknowledge her flexibility, I have included different provisions for final decisions about the children’s health and education. Those decisions will be made in accordance with the recommendations of the children’s doctor or teacher. Otherwise, in cases of dispute, Mr. Tenpas will have final decision-making responsibility.

[149] The clause is written, however, in such a way that, if the primary residence of the children, or any of them, is changed from that of Mr. Tenpas to that of Ms. Hennessy, she (as the provider of the child’s or children’s primary residence) would have final decision-making responsibility in the event of a disagreement. However, until that occurs, if ever, Mr. Tenpas will retain final decision-making responsibility for all areas except health and education.

Primary Residence and Parenting Time

[150] If I make a final order about primary residence at this time, Ms. Hennessy simply cannot succeed because she does not reside in London and there is no evidence either that the children would be welcomed to live at the home of Mr. Friesen’s parents or that it would be in their best interests to do so.

[151] Her plan proposes that the children continue to reside in Mr. Tenpas’ primary care until at least June 2025, with discussions about where they might live thereafter to take place between the parties at that time.

[152] The children have been residing with Mr. Tenpas for the past 32 months. Ms. Hennessy’s preference is that, within months of her returning to London, the children be uprooted from their father’s care to live with her and Mr. Friesen, a man whom they barely know, unless they indicate otherwise.

[153] Each of the children will eventually express their views about where, with whom, and to what extent they wish to reside with their parents. The parties’ eldest daughter may be ready to undertake that step now. There was evidence which suggested that her relationship with Mr. Tenpas has been problematic. In my view, where she and her siblings might primarily reside is a discussion that the parties should have once Ms. Hennessy returns to and has been residing in a stable residence in London for some time.

[154] Consequently, in recognition of current circumstances, I find that it is only logical and in the best interests of the children to leave them in Mr. Tenpas’ primary care.

[155] However, given that Ms. Hennessy did care for the children half of the time before instability hit her in May 2022, I have included in my order a provision requiring the parties to discuss parenting issues once she has regained stability, reflected by the obtaining of, and residing in, a fixed, stable residence in London for a certain period. In their discussions, they are required to take into account the views and preferences of the children. The order further sets out instructions about mechanisms by which their disagreements during such discussions might be addressed.

[156] The alternative would be to make an interim order at this point and leave open the prospect of a resumption of this trial on the issue of primary residence each time one or more of the children express a view contrary to the existing status quo. I find that ongoing litigation is also not in the children’s best interests.

[157] As for the issue of parenting time, I agree with the proposal of Ms. Hennessy. It is time that she again be allowed to have the children in her care, where she resides, on weekends.

[158] There was no suggestion or evidence that she had been a neglectful or inappropriate parent in the period between 2018 and 2022 when they resided with her half of the time. Mr. Tenpas brought no proceeding in that period to have the children’s primary residence changed. That only occurred, as he testified, when Ms. Hennessy failed to help with the increased costs he was incurring having the children in his care full time. His motivation in bringing this motion was primarily financial. While that is not wrong, it does suggest that he had no reason to find major fault with Ms. Hennessy’s parenting prior to 2022.

[159] She lost care of these children not because of bad parenting decisions but because of bad economic circumstances. She showed maturity and a willingness to put their interests ahead of her own when she placed them into Mr. Tenpas’ care in May 2022 rather than take them to a shelter.

[160] As a result, I find that there is no reason to deny her the right to have parenting time with the children on weekends while she resides in Aylmer. The uncontradicted evidence is that Mr. Friesen’s parents are willing to have the children stay there on weekends with Ms. Hennessy. Mr. Friesen is prepared to transport them between London and Aylmer for that to occur.

[161] Regarding that point, I also find that Mr. Tenpas’ concern about the risk that Mr. Friesen might pose to the children is overstated. He has no criminal record. The Crown withdrew his sexual charges. There was no evidence before me to suggest that the offences occurred. Charges are not convictions and allegations are not proof. Should Mr. Friesen be convicted of assaulting his former girlfriend’s daughters, Ms. Hennessy will be obliged, of necessity, to consider whether continuing to expose her children to him is safe and in their best interests.

[162] I believe that she will do that. The evidence satisfies me that Ms. Hennessy has already shown a willingness to prioritize the safety of the children. I do not disbelieve her evidence, or that of Mr. Friesen, that she has never left the children in his care. Additionally, she indicated that she would not do so if the court made such an order.

Child Support

[163] In Kinsella v. Mills, Justice Chappel summarized the principles set out by the Ontario Court of Appeal in its decisions in Drygala v. Pauli and Lavie v. Lavie, 2018 ONCA 10 on the issues of imputing income and intentional underemployment by a support payor under s. 19(1)(a) of the Child Support Guidelines. Justice Chappel wrote [8]:

1. …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;
2. 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…;
3. A finding of deliberate under-employment or unemployment does not require evidence of bad faith or an attempt to evade support obligations;
4. 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;
5. 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…;
6. …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…
7. Even if the court determines that a party is intentionally under-employed or unemployed, the court nonetheless has the discretion to decide whether or not to impute income to them. This discretion does not apply 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…. 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 [and] the importance of ensuring a fair standard of support…

[164] The evidence establishes that, as a child, Ms. Hennessy struggled with illicit drug use. At the age of 14, she ran away from home and began to live on the street and in shelters, although her parents would occasionally succeed in persuading her to return home. When she did, she tried different secondary schools but could not succeed. Inevitably, “the lure of the street,” as Ms. Sim called it, drew her back and she would leave her parents’ home again. This continued until she was 18 years of age and began to turn her life around.

[165] Ms. Hennessy possesses only a basic education, and her primary work history has been in residential and commercial cleaning. While she completed a course as an HVAC technician at North American Trade School in 2020 and acknowledged the salary that such a technician might earn, the reality is that the Covid pandemic was either imminent or in effect when she graduated. Whether she would have secured employment in that field at that time is speculative. Instead, she reverted to what she knew best – cleaning, by trying to help a friend establish a business, a venture that did not bear fruit.

[166] While Mr. Tenpas had testified that Ms. Hennessy was not working when they were together, she disagreed. If he is correct, he now expects much more of her than he did when they were together. However, if she is correct, her employment both before and after the end of their relationship was as a cleaner earning a minimum wage.

[167] Justice Mitchell’s order effectively required that, for support purposes as of 2018, Ms. Hennessy’s annual income would be equal to the greater of her actual income and $15,750.00. The evidence produced for 2021 through 2023 demonstrates that she did not earn that amount at any time after May 2022, the effective date after which Mr. Tenpas seeks child support.

[168] The real question is whether the income to be attributable to Ms. Hennessy during that period is to be as set out in the order of Justice Mitchell, which would, on the evidence, be $15,750.00 per annum, or the minimum wage for each year.

[169] Mr. Khot argued that, with the children not being in her care after May 2022, Ms. Hennessy’s imputed income of at least $15,750.00 could be doubled because childcare was no longer a factor for her. He argued, in effect, that her income for support purposes had to have been tied to her having the children in her care half the time.

[170] However, the children were in school during the day, so full-time work might have been available when the children would not have been in her care in any event, yet the imputed wage was less than what a full-time, minimum wage job would pay.

[171] I do not know why an income of at least $15,750.00 was chosen. It may have been a reflection of the type of work that Ms. Hennessy did, and the minimum amount set by the order was not envisioned as being exceeded given her low wage and few hours.

[172] I also find that, with her background and limited education, it is not reasonable to expect that Ms. Hennessy will easily find a higher paying, full-time job. Even the new job she has been conditionally hired for at Nestle is on an “as-needed” basis, for a limited period of the year.

[173] If I view the issue of child support through the lens of a material change in circumstances, I advert to the fact that the material change in this case, which allows for any changes to be made to the order of Justice Mitchell, had a negative impact on Ms. Hennessy. I cannot conceive that a material change which has resulted in negative residential and parenting consequences for Ms. Hennessy could, at the same time, result in positive economic consequences for her. Mr. Tenpas has not demonstrated that Ms. Hennessy’s financial situation was enhanced by her eviction in May 2022.

[174] Consequently, given Ms. Hennessy’s “education, …work history, the availability of work that is within the scope of [her] capabilities and the amount of income that [she] could reasonably earn if [she] worked to capacity”, I find that she would not have been intentionally underemployed in a job that pays only $15,750.00 per annum.

[175] Moreover, I exercise my discretion to not impute a higher income to Ms. Hennessy since May 2022. The evidence shows that she was, in essence, homeless for much of that period. Additionally, she went through a period of depression over the loss of partial primary care of the children and much uncertainty about whether she would have parenting time with them. Such concerns would undoubtedly have been a drag on her ability to find, much less work effectively at, a job that might have paid more than $15,750.00 per annum, if she had been able to find one.

[176] To those points, Justice Henderson suspended Ms. Hennessy’s support obligation in his order of March 22, 2023 “pending further order of the court,” while Justice Tobin, in his order dated April 27, 2023, suspended it retroactively to May 2022. Neither Justice Henderson nor Justice Tobin indicated the reason for their decisions to suspend the payment of child support. Both also suspended enforcement by the Family Responsibility Office.

[177] While it is true that Ms. Hennessy did, in fact, earn less than $15,750.00 in 2022 and 2023, when she did not have a stable place of residence, in her Answer she did not seek a reduction in the minimum amount that would form the basis of her child support obligation after May 2022.

[178] However, I cannot disregard what she earned in the years 2022 and 2023 when she was living a somewhat transient lifestyle. As a result, I have decided to not remove the suspension on Ms. Hennessy’s child support obligation that was ordered, ultimately, by Justice Tobin, but only until the end of 2023.

[179] By 2024, Ms. Hennessy was residing with Mr. Friesen and his parents. She had residential stability, yet she still seemed to be unable to find work. Surely, by then, some minimum wage job would have been available to her. For the reasons I articulated earlier, however, I will not be changing the income imputed to Ms. Hennessy by the order of Justice Mitchell.

[180] As a result, my order will set arrears of child support owed by Ms. Hennessy to Mr. Tenpas for the period between January 15, 2024 and January 15, 2025, based on a monthly payment of $210.00, which will also be the monthly child support payment commencing February 15, 2025, based on an annual income of at least $15,750.00.

Order

[181] For the reasons articulated herein, I make the following order:

1. Paragraph 1 of the Final Order of Justice Mitchell dated November 20, 2018 is deleted and replaced with the following:

   a. Subject to the following subparagraphs, the parties shall continue to share decision-making responsibility in respect of significant decisions about the well-being of the children, including with respect to their health, education, culture, language, religion and spirituality, and significant extra-curricular activities.

   b. Whenever a significant, non-emergency decision must be made about the well-being of one or both of their children, including with respect to their health, education, and significant extra-curricular activities, the parties shall utilize the following process in an effort to arrive at a decision:

   i. the party seeking a decision will contact the other, by email, and advise of the issue about which a decision is required, the time within which the decision is required to be made and state his or her position about the decision and the reasons for taking that position. If no position is being taken by the party seeking a decision, that party shall inform the other of that fact when seeking the views of the other about the decision;

   ii. the party receiving the notice shall respond by email within 48 hours, or such lesser period as the circumstances demand, setting out in the response his or her position about the decision, and the reasons for taking that position;

   iii. in circumstances where the decision pertains to the health or education of the children or either of them, the parties shall endeavour to consult either together or individually with the children’s physician or teacher, as the decision to be made dictates, in an effort to obtain information to assist them to formulate a position with respect to the decision to be made;

   iv. as time permits, the parties shall discuss the issue requiring a decision until such time as they have reached a consensus about the decision; and

   v. in the event that the parties cannot reach a consensus about a decision:

     1. with respect to a child’s health, the decision shall be made in accordance with the recommendation of the child’s physician;
   
     2. with respect to a child’s education, after also taking into account the child’s views and preferences, the decision shall be made in accordance with the recommendation of the child’s teacher;
   
     3. with respect to culture, language, religion and spirituality, and significant extra-curricular activities, after also taking into account the child’s views and preferences, the decision shall be made by the person who provides primary residence for the child about whom the decision applies.
   

   vi. In situations where the parties cannot reach a consensus about a decision and need to consult a child’s teacher or physician pursuant to the provisions of this order, unless the parties are asked by the person whose recommendation is to be followed if that person is, in effect, the default decision-maker, the parties shall not disclose that fact to the person. If a party does disclose this fact to the person without having been asked and, as a result, the person declines to make a recommendation, the decision shall be made by the party who did not make the disclosure to the person.

   vii. Once the party providing primary residence for the children makes a decision about an issue listed in subparagraph 1(b)(v)(3), he or she shall, within 24 hours, communicate with the other party by email:

     1. advising when the decision was made;
   
     2. communicating the specifics of the decision; and
   
     3. explaining the reason or reasons for the decision.
   

   viii. In the event that a decision must be made with respect to emergency health care for the children or any of them, the parties shall endeavour to discuss and achieve a consensus about a decision as quickly as possible. In circumstances where that is not possible, the party who has the child in his or her care at the time of the emergency shall make the emergency health care decision and shall communicate it to the other party by text, email and, if possible, telephone as soon as possible thereafter.

2. Paragraph 2 of the Final Order of Justice Mitchell dated November 20, 2018 is deleted.

3. Paragraphs 4 and 5 of the Final Order of Justice Mitchell dated November 20, 2018 are vacated and replaced by the following:

   4. Subject to the provisions of subparagraphs 6.10 through 6.13 hereof, Allissa Grace Tenpas, born January 14, 2010, Roanin Bernard Tenpas, born February 24, 2012, and Carlin Anthony Tenpas, born September 9, 2013, (hereinafter, the children) shall primarily reside with the Respondent, Bernard Tenpas.

   5. Subject to the provisions of subparagraphs 6.10 through 6.13 hereof, while the primary residence of the children is that of the Respondent, Bernard Tenpas, each child shall attend the school serving the Thames Valley District School Board attendance area in which the residence of Bernard Tenpas is located and which is applicable for the grade attended by that child.

4. Paragraph 6 of the Final Order of Justice Mitchell dated November 20, 2018 is vacated and replaced by the following:

   6. The Applicant, Christal Hennessy shall have parenting time with the children, namely, Allissa Grace Tenpas, born January 14, 2010, Roanin Bernard Tenpas, born February 24, 2012, and Carlin Anthony Tenpas, born September 9, 2013, in accordance with the following schedule:

      i. each Wednesday from 3:30 pm (or after school) to 8:00 pm.

      ii. each Thursday from 3:30 pm (or after school) to 8:00 pm.

      iii. alternating weekends from Friday at 3:30 pm (or after school) to Sunday at 6:00 pm., and

      iv. such other dates and times as are agreed upon by the parties in writing.

   6.1 Christal Hennessy shall confirm her parenting time, by email, at least 24 hour before it is to begin, failing which her parenting time shall be deemed to have been cancelled. Bernard Tenpas shall immediately confirm receipt of any such email from Christal Hennessy. In the event of a conflict between the parties about whether Christal Hennessy sent an email to Bernard Tenpas confirming her parenting time, production on her cell phone screen or by way of a printed copy of the original email sent by Christal Hennessy shall determine the issue and her parenting time shall occur.

   6.2 Until such time as the provisions of paragraph 6.4 become operative, the Wednesday and Thursday parenting time of Christal Hennessy shall occur only at the residence of Sarah Gardiner in London, so long as Sarah Gardiner agrees that it may.

   6.3 Until such time as the provisions of paragraph 6.4 become operative, Christal Hennessy’s overnight alternating weekend parenting time shall occur at the residence of the parents of Kenneth Friesen located at 51133 John Wise Line, Aylmer, Ontario. Prior to 6:00 p.m. on Saturday and Sunday, Christal Hennessy’s alternating weekend parenting time may occur only in London or Aylmer, Ontario, including at 51133 John Wise Line, Aylmer, Ontario.

   6.4 Upon Christal Hennessy starting to reside in a residence in London of which she is the sole or one of the lessees on a lease of at least one year’s duration, or the sole or one of the registered owners, and she produces documentary evidence of her residential status in London to Bernard Tenpas, the restriction on where she is required to exercise:

   i. her weekday parenting time as set out in paragraph 6.2 is changed to London, Ontario, including her own residence; and

   ii. her alternate weekend parenting time as set out in paragraph 6.3 is terminated, although she is required to ensure that the children spend their overnight parenting time with her in her residence in London.

   6.5 Christal Hennessy shall be responsible for:

   6.5.1 retrieving the children at the commencement of her weekday and weekend parenting times; and

   6.5.2 returning the children to Bernard Tenpas at the end of her weekday and weekend parenting time, until such time as the provisions of Paragraph 6.4 become operative, whereupon the provisions of Paragraph 6.6 shall apply and the provisions of this sub-paragraph 6.5.2 shall cease to apply.

   6.6 Upon the provisions of paragraph 6.4 becoming operative, Bernard Tenpas shall be responsible for retrieving the children at the end of both Christal Hennessy’s weekday and weekend parenting time.

   6.7 For those times that Christal Hennessy is required to retrieve or return the children, they may be transported in a vehicle driven by Kenneth Friesen, provided that Christal Hennessy is also present with the children at all times.

   6.8 The exchange locations for the children’s parenting time with Christal Hennessy shall be:

   6.8.1 the children’s school(s) when they are to be picked up by her for her weekday and weekend parenting time;

   6.8.2 the residence of Bernard Tenpas when the children are to be returned to him by Christal Hennessy on both weekdays and weekends pursuant to the terms of Paragraph 6.5.2; and

   6.8.3 the residence of Christal Hennessy when the children are to be retrieved by Bernard Tenpas pursuant to the terms of Paragraph 6.6.

   6.9 At no time shall Christal Hennessy leave the children or any of them alone with or in the care of Kenneth Friesen.

   6.10 Once Christal Hennessy has been residing for a period of at least five (5) months in a residence in London of which she is the sole or one of the lessees on a lease of at least one year’s duration, or the sole or one of the registered owners, and she produces documentary evidence of her residential status in London to Bernard Tenpas, but not earlier than July 1, 2025 in any event, Christal Hennessy and Bernard Tenpas shall meaningfully discuss any proposed changes to:

   6.10.1 the primary residence of the children or any of them;

   6.10.2 the school to be attended by the children or any of them; and

   6.10.3 any changes to be made to Christal Hennessy’s parenting time.

   6.11 When discussing any changes to this order, the parties shall take into account the wishes, views, and preferences of the children.

   6.12 Should the parties be unable to agree on any changes to either issue described in paragraph 6.10.1, 6.10.2 or 6.10.3:

   6.12.1 if both agree, they shall seek assistance from Mediation Centre Ontario Inc. or such other mediator as it might suggest, to help them settle any such disagreement. If they do, the mediator shall be given a copy of these Reasons. Any agreement achieved by them through mediation shall supersede the terms of this order; or

   6.12.2 a party who seeks a change not agreed upon by the other may commence a new Motion to Change and, within it, bring a motion requesting an interim order addressing any requested change pending the completion of the Motion to Change.

   6.13 Should either party refuse to comply with the provisions of Paragraph 6.10 or 6.11, the other party may bring a motion under Family Law Rule 1(8) for such relief as the court deems appropriate in the circumstances.

   6.14 Until there has been an agreement or a court order which changes the terms of this order with respect to the children’s primary residence, where they or any of them attend school, or Christal Hennessy’s parenting time, the provisions of this order shall continue to apply.

5. The temporary suspensions of child support payable by Christal Hennessy that were imposed on an interim basis by Justice Henderson on March 23, 2023 and Justice Tobin on April 27, 2023 are made final for the period between May 15, 2022 and December 15, 2023, inclusive.

6. The suspension of the enforcement by the Family Responsibility Office of Christal Hennessy’s obligation to pay child support that were imposed on an interim basis by Justice Henderson on March 23, 2023 and Justice Tobin on April 27, 2023 are hereby terminated. The amounts to be enforced by the Family Responsibility Office are as set out in this order.

7. Arrears of child support owed by Christal Hennessy to Bernard Tenpas for the period between January 15, 2024 and January 15, 2025, inclusive, amount to $2,730.00.

8. Christal Hennessy shall pay the arrears of child support owed to Bernard Tenpas pursuant to Paragraph 7 hereof at the rate of $100.00 per month, commencing February 15, 2025 and on the 15th day of each month thereafter until paid.

9. Subject to any change in parenting time pursuant to the procedure set out in Paragraphs 6.10 to 6.13 hereof which would also result in a change to Christal Hennessy’s child support obligation, Christal Hennessy shall resume paying monthly child support to Bernard Tenpas on the 15th day of February 2025 and on the 15th day of each month thereafter, in an amount equal to the greater of:

   9.1 $210.00 per month based on an annual imputed income of $15,750.00; and

   9.2 such amount as her annual income would mandate under the Child Support Guidelines, for three children, should her annual income surpass $15,750.00.

10. For the purposes of Paragraph 9 hereof, the determination of Christal Hennessy’s annual income shall be determined annually as of May 15, commencing on May 15, 2025, in accordance with the provisions of Paragraph 18 of the order of Justice Mitchell dated November 20, 2018.

11. Paragraph 15 of the Final Order of Justice Mitchell dated November 20, 2018 is vacated and the following substituted:

“Commencing January 1, 2025, the parties shall equally contribute to the children’s special or extraordinary expenses, as those terms are defined by the Child Support Guidelines.”

12. Paragraphs 20, 21, 22, 23, and 24 of the final order of Justice Mitchell dated November 20, 2018 are hereby vacated.

13. Except as changed herein, all other terms of Justice Mitchell’s final order dated November 20, 2018 remain in full force and effect.

Costs

14. The parties are strongly encouraged to settle the issue of costs. If they cannot, they may forward written submissions to me through the Family Court Judicial Assistants at London.

15. The parties’ costs submissions shall not exceed five typewritten pages in Times New Roman 12-point font, with double spacing.

16. The parties’ costs submissions shall be accompanied by any offers to settle, whether accepted or not, together with a list of all persons who worked on the matter for whom a claim for costs is being made, their position, the amount being sought for costs in respect of that person, and a complete and clear description of the work undertaken by each person for whom a claim for costs is being made.

17. Mr. Khot shall also indicate what he has billed Bernard Tenpas for this matter for the period for which costs are being sought.

18. The submissions of the parties are to be served and forwarded to the Family Court Judicial Assistants at London by no later than 15 days from the date that this judgment is released to them.

19. Should either party wish to respond to the written costs submissions of the other, each such party shall serve and forward their responding submissions to the Family Court Judicial Assistants at London by no later than 30 days from the date that this judgment is released to them.

20. If no costs submissions are received from at least one of the parties by the date that is 15 days from the date that this judgment is released to the parties, costs shall be deemed to have been settled, neither party shall be entitled to an order for costs, and no such order shall thereafter be made.

“Justice T. Price”

Justice T. Price
Released: February 4, 2025

Endnotes

[1] Ms. Hennessy acknowledged that she has not had contact with the children’s physicians since May 2022, nor had she asked Mr. Tenpas to sign an authorization allowing her to obtain information about the children from their new family physician, because she thought that the clause in Justice Mitchell’s order which gave both parents access to the children’s medical information was terminated when she placed the children with Mr. Tenpas. She was informed that her understanding was incorrect.

[2] Changed to noon by an order of Justice Nicholson dated October 24, 2023.

[3] Mr. Tenpas was able to cite only two occasions where this may have been an issue, but he appeared to have no first-hand knowledge of the circumstances.

[4] Asked for specifics, Mr. Tenpas indicated that one of their children had sustained a bite mark on an arm while at Ms. Gardiner’s residence. Ms. Hennessy confirmed this to be correct.

[5] The reasons are reviewed, infra, at Paragraphs 72-75.

[6] Although the statute is worded somewhat differently, these same principles apply to a proceeding under s. 29(1) of the Children’s Law Reform Act, RSO 1990, c C.12.

[7] Gordon v. Goertz, [1996] 2 S.C.R. 27.

[8] Edited; case references and citations omitted.