R.M. v. D.S., 2026 ONSC 1795
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
R.M.
Applicant
– and –
D.S.
Respondent
Applicant, Self-Represented
Respondent, Self-Represented Patrick Fallon, Counsel, Office of the Children’s Lawyer
HEARD: March 16, 17, 18, 2026
JUDGMENT
THE HONOURABLE MR. JUSTICE A. PAZARATZ
1Does scaring a child with a false allegation of family violence...constitute family violence?
2That was a question at this three-day oral hearing of a motion to change.
a. The issue is the father’s parenting time with two children ages 14 and 10.
b. Everyone – even the OCL – proposed various versions of the status quo.
c. But the status quo hasn’t been working for years.
d. So with all of our resources – do we just do nothing, and hope things get better?
e. Surely these children deserve better than that.
3Note: Because of sensitive information which may embarrass the children, I have decided to initialize this file, and refer to the children using pseudonyms. I will refer to the parents as the mother and the father.
4The background, briefly:
a. The parties were married May 2, 2009.
b. They separated September 9, 2018.
c. They have two children Mitchell, age 14 and Nora, age 10.
5The December 9, 2020 consent order of Justice Skarica included both final and temporary terms.
a. The final terms included:
i. Joint custody.
ii. Joint decision-making regarding important decisions relating to:
Education
Major non-emergency healthcare
Religious activities
Major recreational activities
iii. In the event of disagreement, mother to have final decision-making authority.
iv. Parents equally entitled to communicate with third-party service providers for the children.
v. Parents to notify one another immediately by phone in the event of an emergency.
vi. Mother to obtain and retain children’s government documents.
vii. If a parent proposes to relocate within 25 kilometers, moving party to provide full particulars.
viii. Mother not to move children’s residence beyond 25 kilometers of the matrimonial home without father’s written consent or court order.
ix. Vacation notification provisions.
x. Parents to provide email addresses, current addresses, and a telephone number.
xi. Father to pay $1,615.00 per month child support commencing June 1, 2020 based on his 2019 income of $111,729.00.
xii. No retroactive child support owing.
xiii. Father to pay $2,567.19 as his share of section 7 expenses for the period prior to June 1, 2020.
xiv. Parties to share ongoing section 7 expenses equally. Reimbursement directly from benefit plan, otherwise payment within 10 days.
xv. Section 7 expenses include basketball for Mitchell, dance for Nora, and one week of summer camp per child. Future section 7 expenses include one activity per year per child, one week of summer camp per year per child, and reasonable post-secondary expenses.
xvi. Parties to seek prior written consent before incurring section 7 expenses, consent not to be unreasonably withheld.
xvii. Annual exchange of tax returns and notices of assessment by July 1, commencing July 1, 2021.
xviii. Parties to maintain children as beneficiaries of any extended health benefits available through employment. Parties to execute authorizations for other party to deal directly with plan, failing which reimbursements to be immediately forwarded.
xix. Parties to advise one another immediately upon any change in health benefits available.
xx. Father to designate children as beneficiaries of his life insurance with his employer in the sum of $225,000.00 with the mother as trustee.
xxi. Neither party pays spousal support.
xxii. Provision for use of RESP.
xxiii. No costs.
b. The temporary terms included:
i. Pending father obtaining suitable accommodation, father to have reasonable daytime access to children to include Wednesday from 6 p.m. to 8 p.m. when he is on day shift and Saturdays 2 p.m. to 4 p.m. when he is on night shift, together with other times as agreed.
ii. Regular and holiday timesharing to be determined once the father obtains appropriate residential accommodation.
6The October 4, 2022 final order of Justice Chappel – also on consent – stated the father’s time with the children shall include:
a. Alternate weekends Friday 6 p.m. to Sunday 6 p.m.
b. One mid-week visit from pick-up from school to 8 p.m., to be scheduled by the Sunday, recognizing the father’s rehabilitation program may require flexibility.
c. Detailed holiday provisions for long weekends, spring school break, Easter weekend, Christmas, and summer school break (each party to have two non-consecutive weeks).
d. Exchanges to take place at school, or if children not in school, at a specific McDonald’s.
7The order also re-addressed child support obligations.
a. Father to pay $621.00 per month child support based on his long-term disability income of $41,760.00, with $2,500.00 owing retroactively.
b. Father to pay 35% of future section 7 expenses (currently basketball for Mitchell, gymnastics for Nora).
c. Child support to be reviewed when the father returns to full-time employment.
8On July 8, 2024 the mother brought a motion to change the respective final orders. Her requests include:
a. Changing joint custody to sole custody in her favour.
b. Changing joint decision-making to sole decision-making in her favour.
c. Changing the father’s specified parenting time to parenting time in the discretion of the children.
d. Changing the father’s child support from $621.00 per month to $677.30 per month based upon the father’s long-term disability income of $45,174.00, with payments to be made on the first day of each month.
9The mother’s rationale:
a. A new court order should reflect the reality that the children aren’t seeing the father at all.
b. A new court order should reflect the reality that the father is not involved in the children’s lives, and the mother is actually making all the decisions.
c. Child support should be adjusted to reflect changes in the father’s income.
10The Office of the Children’s Lawyer became involved, assigning Mr. Fallon as counsel for both children. Mr. Fallon prepared a Statement of Agreed Facts which he and the parents signed and filed at the outset of the trial. That statement confirmed some of the non-contentious background information. It also included the following agreed facts relevant to the determination of this motion (some paragraphs omitted):
The child Nora ceased attending parenting time with her father in early May 2024.
On October 1, 2024, the Applicant and Respondent agreed to vary the terms of the Final Order dated October 4, 2022, as follows:
a. Week 1: Commencing Friday October 4, 2024, on Friday from 3:30 p.m. until 6:00 p.m. The Applicant shall pick Nora up from school if she is in school. If she is not in school for any reason, the exchange at the commencement of this parenting time shall occur at the McDonald's restaurant located at the intersection of Rymal Road and Centennial Parkway in Hamilton ("the McDonald's restaurant"). All parenting exchanges at the end of this parenting time shall occur at the McDonald's restaurant.
b. Week 2: Commencing Saturday October 12, 2024, on Saturday from 1:00 p.m. until 5:30 p.m., with parenting exchanges to occur at the McDonald's restaurant. b) The Applicant shall have such further and additional parenting time with Nora as may be agreed upon in advance in writing between the parties, taking into consideration Nora's views and preferences. c) The Applicant's parenting time with Nora shall occur in the community, unless otherwise agreed upon in advance in writing between the parties, after taking into consideration Nora's views and preferences.
The Office of the Children's Lawyer appointed Patrick Fallon as counsel in this matter on October 3, 2024 following the Temporary Order of the Honourable Justice M.A. Kril dated July 3, 2024.
The children Mitchell and Nora currently reside in the care of the Respondent.
The lawyer for the Office of the Children's Lawyer, Patrick Fallon, completed parent intake appointments with the Applicant on October 21, 2024, and with the Respondent on October 23, 2024.
The lawyer for the Office of the Children's Lawyer completed in-person meetings with the children on the following dates:
a. November 6, 2024
b. November 13, 2024
c. January 20, 2025, and
d. May 22, 2025
The Applicant and Respondent attended a disclosure meeting with the lawyer for the Office of the Children's Lawyer on February 18, 2025.
During the disclosure meeting on February 18, 2025 the lawyer for the Office of the Children's Lawyer advised the Applicant and Respondent of the children's views and preferences.
The children reported to the lawyer for the Office of the Children's Lawyer that they enjoyed living in the full-time care of the Respondent (mother) and have reported not having regular parenting time with the Applicant (father) in several months.
The children were interviewed by the lawyer for the Office of the Children's Lawyer at their school, as a neutral location, to ensure that the parent bringing the children to the interview did not influence the children's views and preferences.
The children maintained their views at their school, and they were consistent and articulate with their views.
Mitchell has stated to the lawyer for the Office of the Children's Lawyer that he wants his parenting time with the Applicant to be at his discretion. He noted that when he was attending for parenting time with the Applicant, his father would cancel many of the visits that were scheduled, and it was upsetting to him.
Mitchell noted to the lawyer for the Office of the Children's Lawyer that if his father were to make sure that no future visits were cancelled and to prioritize him and his sister over his other plans, he would go to parenting time in the future.
The lawyer for the Office of the Children's Lawyer asked about possibly having parenting time over the phone, before resuming the parenting time. Mitchell noted that he can call his father at any time and that they communicate via text message.
Mitchell indicated to the Office of the Children's Lawyer that he had no preference on who should make big and important decisions for him.
Mitchell indicated to the Office of the Children's Lawyer that he would prefer if neither parent spoke negatively about the other parent, and if both parents only spoke about age-appropriate topics with him and his sister.
During the first three meetings with the lawyer for the Office of the Children's Lawyer, Nora was not open to in-person or virtual parenting time with her father at this time.
Nora reported that her father would cancel many of the visits that were scheduled, and it was upsetting to her.
When asked about parenting time over the phone or in the community by the lawyer for the Office of the Children's Lawyer, Nora shared that she would only want such parenting time in her discretion.
Nora reported that she thinks that her mother should make important decisions for her.
The lawyer for the Office of the Children's Lawyer did not observe any concerns regarding the children being influenced by the Respondent. Both children had their own thoughts and feelings about the parenting time with their father, and remained consistent with the OCL, even in a neutral setting.
The children were consistent with the lawyer for the Office of the Children's Lawyer about wanting parenting time in their discretion.
The children described to the lawyer for the Office of the Children's Lawyer being cared for and loved by their mother.
Mitchell noted to the lawyer for the Office of the Children's Lawyer that he would prefer if neither parent spoke negatively about the other parent, as he noted that this has happened in both households.
The Office of the Children's Lawyer suggested that the Applicant complete a parenting course with a focus on how to communicate in an age-appropriate manner with the children, and they were supportive of this proposal.
Both children emphasized to the lawyer for the Office of the Children's Lawyer the need for consistency in any parenting time that occurs in the future.
11Both parents represented themselves, and they were the only two witnesses at the trial. On consent, Mr. Fallon conveyed the children’s views and preferences from counsel table.
12During preliminary discussions at the commencement of the hearing, the father raised concerns about bias.
a. The father expressed concern that the OCL relied on information provided by a school principal. The father said the principal is Serbian. He said the mother is Serbian, and she comes from a Serbian family which is prominent in the local community. As a result, the father suggested the school principal was biased in favour of the mother because they are both Serbian.
b. The mother and the OCL disputed that there was any basis for suspecting preferential or biased information from the school principal. Having reviewed the materials, I also concluded that there was no basis for the father’s allegation of bias. In any event, the information from the school principal provided some general context, but it would not have been determinative of the trial issues.
c. But having dismissed the father’s concern about the Serbian school principal, out of an abundance of caution I raised a related issue.
d. I explained that my parents were Serbian. I was born in Canada. I have never been to Serbia. I have no connection with anything that could be described as a Serbian community. I wanted to clearly disclose this personal information, so that the father could make an informed decision about whether he would or might be alleging bias on my part.
e. The father was candid in his response. He said he had “prayed” that he would not get a Serbian judge. However, the father confirmed that he was not alleging any bias or potential bias on my part, and he was not going to be raising any issue as to whether I should proceed as the trial judge.
13On the second day of trial, an unexpected issue also arose with respect to a November 4, 2025 Offer to Settle.
a. At the outset of the trial, the parents and the OCL confirmed that the main issue in dispute was the father’s parenting time.
b. Prior to commencing the presentation of evidence, I asked the mother, the father and the OCL to confirm the exact relief they were asking for. They each set out the specific terms they would be seeking on all issues, including very specific details about their respective parenting time proposals.
c. The trial then proceeded.
d. However, on the second day of trial, at the conclusion of the mother’s testimony, she mentioned that the parties had actually signed a November 4, 2025 Offer to Settle dealing with the father’s parenting time. She expressed confusion because she thought this issue had been resolved, so she wasn’t sure why we were still having a trial about the father’s parenting time.
e. The father said he didn’t recall the document in question, because there have been so many documents in this case. I should note at this stage that the father has significant health problems stemming from a massive heart attack in 2020, with many subsequent complications. Among his health challenges, he acknowledges significant problems with his memory. So I did not interpret the father’s lack of recollection of the November 4, 2025 offer as being strategic or disingenuous.
f. Mr. Fallon for the OCL provided some helpful clarification. He recalled that an Offer on parenting issues was indeed signed by all parties in November 2025. However, the OCL said the father then immediately identified his concerns about the terms in the offer, and the father immediately advised that he was not consenting to those terms as he did not believe they were in the best in interests of the children. Mr. Fallon thought the mother was aware that the father was not consenting to the terms of the offer being incorporated into a court order. Mr. Fallon presumed that since the parties identified at the outset of the trial that the father’s parenting time was the main issue, that neither of them was going to be relying on a previously signed settlement document.
g. Given the fact that both parents were self-represented, I tried to make sure that they fully understood the legal issue which had arisen. I explained that the mother had never identified that she was seeking enforcement of a settlement, and if she had intended to do so, she should have done so prior to trial – or at the very least at the beginning of the trial. By somewhat casually mentioning the existence of a signed offer on the second day of trial – and after she had given the bulk of her evidence – it was unclear what she was asking the court to do in relation to the November 4, 2025 Offer.
h. I then explained that even though it was unusual procedurally, I would give the mother an opportunity to make submissions if she was now asking for enforcement of the November 4, 2025 signed and accepted offer.
i. After lengthy discussion on this topic, the mother confirmed that she was not seeking enforcement of that settlement document. She was content that the trial would proceed, and that the parenting issues would be determined by the court based upon the evidence presented, and without reference to the November 4, 2025 Offer (which was never shown to me).
14As stated, prior to receiving evidence I asked each party to summarize the relief they would be asking for.
15Mr. Fallon set out the OCL’s proposed order on parenting issues:
a. With respect to 14-year-old Mitchell, every Friday the father is to telephone the child at some time between the end of school and 9 p.m. to discuss whether they can arrange any parenting time for that weekend or for the upcoming week. The determination of parenting time shall be in Mitchell’s discretion as to whether it occurs, times, locations, duration or the activities involved.
b. With respect to 10-year-old Nora, every Friday the father is to text the child at some time between the end of school and 9 p.m. to discuss whether they can arrange any parenting time for that weekend or for the upcoming week. The determination of parenting time shall be in Nora’s discretion as to whether it occurs, times, locations, duration or the activities involved.
c. Each parent shall encourage each child to have a positive relationship with the other parent.
d. Neither parent shall speak negatively about the other parent, to either child or in the presence of either child.
16The mother summarized the order she was requesting:
a. Sole decision-making in relation to both children.
b. Primary residence of both children.
c. Father’s parenting time to be determined on the same terms proposed by the OCL.
a. Commencing April 1, 2026 father to pay base guideline child support in the sum of $703.62 per month, based upon his three-year average income of $46,205.00.
b. Father to pay retroactive table support in the sum of $2,230.74 based on the same income presumptions.
c. Father to pay retroactive section 7 expenses totalling $868.53, based upon his previously determined obligation to pay 35% of such expenses.
d. Father to pay 35% of ongoing section 7 expenses, which currently only entail dance for Nora.
e. Order to be enforced by the Family Responsibility Office.
17The father summarized the order he is requesting:
a. He consents to the mother having sole decision-making in relation to both children.
b. Father to have parenting time with both children on alternate weekends from Friday at 6 p.m. until Sunday at 6:00 p.m.
c. Father to pay child support of $621.00 per month based upon an income of $41,760.00.
d. Suspension of any contribution toward section 7 expenses until the father returns to employment and is no longer reliant on long-term disability benefits.
18So the mother’s motion to change decision-making (from joint custody/joint decision-making under the previous order to sole-decision making) was on consent. And this makes sense.
a. The evidence is overwhelming that communication between the parties is virtually non-existent.
b. There is no trust. No cooperation. No co-parenting.
c. The father currently has no involvement in decision-making (for reasons disputed between the parties).
d. The father was quite realistic in acknowledging that any sort of joint decision-making or co-parenting is simply unrealistic at this stage. So all he wants to do is focus on re-building his relationship with his son and daughter.
19The child support issue was disputed, but not very vigorously because there’s only slight disagreement about the relevant facts.
a. The father is on long-term disability from his employment. His health is really very fragile, so there’s no suggestion of imputing income. There’s no expectation that his situation will improve in the near future. He has remarried and has two young children in his current relationship.
b. The father proposes that his child support be based on his income for the preceding year. The mother appeared to presume that income should always be determined based upon a three-year averaging, which in this case would lead to a slightly higher income determination for the father.
c. Pursuant to s.2(3) of the Child Support Guidelines the court is required to determine issues relating to income based on the most current information available. This requires the court to ascertain, if possible, the payor’s estimated actual annual income in each year for which the quantum of support is being determined, and to make support decisions based on that income. (V.(L.R.) v. V.(A.A.), 2006 BCCA 63 (BCCA); Lavergne v. Lavergne, 2007 ABCA 169 (ABCA); Chalifoux v Chalifoux, 2008 ABCA 70 (ABCA); Vanos v. Vanos, 2010 ONCA 876 (ONCA); Morrissey v. Morrissey, 2015 PECA 16 (PECA).
d. The starting point for calculating annual income, as found in section 16 of the Child Support Guidelines, is a payor's "total income" also known as "line 150" income.
e. If the court is of the opinion that the determination of a spouse’s annual income under s.16 would not be the fairest determination of that income, s.17 states that the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.
i. Section 17 does not mandate income-averaging.
ii. The Guidelines rely upon the more recent past to predict the near future and do not adopt averaging as a default methodology.
iii. However, averaging is permitted when it results in a fair determination of income.
iv. The language in s.17 is permissive, not mandatory.
Mason v. Mason, 2016 ONCA 725; Lesko v Lesko 2021 ONCA 369 (ON CA); J.M.M. v. C.R.M, 2025 ONSC 3067 (SCJ)
f. In this case, I find that there are no circumstances which would justify a three-year averaging of income.
g. It is acknowledged that the father’s 2024 taxable income set out on his Notice of Assessment was $45,767.00.
h. The father requested that his income should actually be determined to be $41,760.00, after deducting certain income attributed to employer benefits and also deducting $1,331.00 relating to a homebuyer’s plan. I do not find that the evidence justifies the reductions the father is seeking.
i. The father’s support obligation for two children based on an income of $45,767.00 is $686.00 per month.
j. The mother’s motion to change requested an increase in child support commencing October 1, 2024. The father was paying $621.00 per month. If his increased amount commences April 1, 2026, he owes a retroactive adjustment of $65.00 per month for 18 months, totalling $1,170.00.
20With respect to section 7 expenses:
a. The October 4, 2022 order requires the father to pay 35% of ongoing section 7 expenses, which at the time were identified as basketball for Mitchell and gymnastics for Nora.
b. The mother claims $868.53 as the father’s 35% contribution toward past section 7 expenses for both children.
c. She says currently only Nora has dance. She wants the father to continue to pay 35% of section 7 expenses, but she is content to set an upper annual limit of $400.00 for his portion of any section 7 expenses.
d. The father seeks a suspension of his obligation to contribute to section 7 expenses because of his reduced income, and the financial hardship his current family unit is experiencing. He did not, however, advance an undue hardship claim, or adduce the required evidence.
21In Titova v. Titov, 2012 ONCA 864 the Ontario Court of Appeal set out the sequential steps for determining whether to make an award for section 7 special or extraordinary expenses:
Calculate each party’s income for child support purposes;
Determine whether the expense in question falls within one of the enumerated categories set out in section 7 of the Guidelines;
Determine whether the expense is necessary in relation to the child’s best interests;
Decide whether the expense is reasonable in relation to the means of the spouses and to those of the child and to the parties’ spending pattern prior to separation;
If the expense falls under section 7(1)(d) or (f), determine if the expense meets the definition of “extraordinary;”
If the court concludes that the claim is appropriate, determine the net amount of the expense after taking into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit;
Determine what amount, if any, the child should reasonably contribute to the payment of the net amount of the expense; and
Determine how the balance of the expense after taking into account the child’s contribution, if any, should be apportioned between the parties.
22Section 7 requires that the expense be reasonable in relation to the means of the parents and those of the child and to the family's spending pattern prior to the separation. In Correia v. Correia, 2002 MBQB 172 Justice Allen set out a number of factors to be taken into account in determining the reasonableness of a s. 7 expense:
the combined income of the parties;
the fact that two households must be maintained;
the extent of the expense in relation to the parties' combined level of income;
the debt position of the parties;
any prospects for a decline or increase in the parties' means in the near future; and
whether the non-custodial parent was consulted regarding the expenditure prior to the expense being incurred.
23Where the expense is not within the means of the parties, the court may limit or deny recovery of that amount. Ebrahim v. Ebrahim, [1997] B.C.J. No. 2039 (SCJ); L.H.M.K. v. B.P.K. 2012 BCSC 435, [2012] B.C.J. 593 (SCJ).
24With respect to the mother’s claim for retroactive section 7 expenses, the activities in question for both children were as contemplated in the previous order. I must also consider that – however it happened – the father has had virtually no direct time with the children for a very long time, which means that the mother has had to assume financial responsibility for the children without the usual financial break which arises when the other parent takes the children for weekends, etc.
25I am also satisfied that some ongoing contribution toward reasonable section 7 expenses is appropriate. But given the father’s circumstances I agree with the mother that a $400.00 per year global cap in relation to his contribution for both children is reasonable.
26An additional minor factor: With the mother’s income being $95,733.00 and the father’s income being $45,767.00, the father’s proportionate share should be 32%.
27Taking all of that into consideration, the father shall pay $800.00 toward retroactive section 7 expenses, and commencing April 1, 2026, 32% of ongoing section 7 expenses, subject to the limitation that the father’s section 7 contribution shall not exceed $400.00 per year (combined for both children).
28The total amount of retroactive child support predating April 1, 2026 shall be repaid at the rate of $50.00 per month commencing April 1, 2026.
29The mother wants support payments to be enforced through the Family Responsibility Office. The father says this is unnecessary. However, the legislation makes it clear that all support orders are presumptively enforced by the Family Responsibility Office. This can only be avoided if both parties voluntarily sign a Notice of Withdrawal. Clearly in this case the mother has no intention of withdrawing from FRO.
30This brings us to the primary issue on this motion to change: the father’s parenting time.
a. And here there’s no dispute about the current sad state of affairs.
b. There’s a lot of dispute about how we got here.
c. And worst of all, nobody has presented a realistic or meaningful proposal about how we make things better.
31On paper, these parties started out with quite an ambitious and commendable plan.
a. Joint custody.
b. Generous, specified time-sharing for the father.
c. Regular and meaningful involvement by both parents.
32And for a while things worked out.
a. The December 9, 2020 consent final order said joint custody with generous specified timesharing for the father.
b. The October 4, 2022 consent final order said it again: Joint custody with generous specified timesharing.
c. And yet somehow we went from the father having generous timesharing to absolutely no contact with either child.
33What went wrong?
34The father said it happened suddenly.
a. Everything was fine.
b. Then the younger child Nora wouldn’t go.
c. At first he insisted that either both children attend or he wouldn’t have parenting time with either. He admits that in retrospect this was a foolish demand. He says he was trying to pressure Nora to join her older brother.
d. When that didn’t work, he said at least he wanted Mitchell to spend time with him. And that happened.
e. But a few months later Mitchell also refused to go.
f. The father says the mother makes no attempt to encourage either child to spend time with the father, or even communicate with him. She simply says “I can’t force them” and leaves it at that.
g. As a result, he hasn’t seen or had any contact with Nora since May 5, 2024. And he hasn’t seen Mitchell since October 15, 2024. Even though the parties had agreed to a reduced schedule in the fall of 2024, even that didn’t materialize.
h. He says he keeps calling and sending messages asking to talk to the children – to try to straighten out any problems – and to arrange parenting time. But both children refuse to respond to him. And the mother refuses to help.
i. He says lately he’s been calling less often, because he can’t stand experiencing the false hope that maybe one of his children will respond.
j. He feels he has done nothing to trigger or justify their hostility toward him. He doesn’t know what to do to repair his relationship with either child.
k. The father said he’s confused and frustrated. He used to have a wonderful relationship with both children. And then suddenly it stopped.
l. He said the only explanation he’s ever been given is that Nora says it’s “too loud” in his house. He admits that with two young children of his second marriage, his home is active. But he says that’s a pretty flimsy excuse for both children to suddenly cut him off completely. He suspects the real problem is that the mother is spitefully encouraging the children to reject his new family.
m. He says he’s willing to propose shorter visits or visits away from his home if that’s what they’re more comfortable with. But he can’t propose anything if they ignore every message he sends them.
35The mother says the children’s relationship with the father deteriorated more gradually, and for understandable reasons.
a. She says Nora first started expressing reluctance to go for visits in December 2023, around the time the father’s youngest child of his current relationship was born.
b. She says Nora complained about the father frequently yelling and being angry. (The father denies any such aggressive behaviour.)
c. The mother says Nora felt she was no longer a priority in the father’s life, and she resented the father insisting that Nora take on responsibility caring for his young children. (The father says Nora expressed interest in feeding her young half-sister, and he agreed because he was happy that she was becoming bonded to her baby sister.)
d. Eventually Nora started physically acting out, crying and refusing to get in the car for visits.
e. The mother says after Nora refused to go, the father said he didn’t want to see Mitchell either unless both children attended. She says this hurt Mitchell’s feelings.
f. For a while Mitchell kept seeing the father without Nora attending.
g. She says both children ultimately became frustrated because the father was frequently cancelling visits or failing to show up, so they felt he really wasn’t interested. They became resentful and apathetic. (The father said he only cancelled for unavoidable reasons, including serious health issues – and that actually the mother and children cancelled his visits much more frequently than he did, often on very short notice.)
h. The mother says the last straw was when the father threatened Mitchell. That’s when the older child also stopped going for visits.
i. She says both children are very upset about how the father has treated them, and she has arranged individual counselling for each of them.
j. She denied the father’s suggestion during cross-examination that upon separation she had vowed to keep the children away from him.
36Their lawyer says both children have strong and mostly negative feelings toward the father. The OCL asks the court to accept and respect those feelings, and leave parenting time in the discretion of each child.
37But there seems to be a disconnect between what the children are saying, and their actual experiences with the father.
38Most conspicuous is the “last straw” incident which is identified as the reason Mitchell stopped seeing his father.
a. In the fall of 2024 Mitchell got a one-day suspension from school for “vaping” on school property.
b. About a month later he got a 20-day suspension for selling vape that contained cannabis to another student, on school property.
c. The mother says after the second suspension the father sent a text message to Mitchell threatening to break the boy’s legs. She said Mitchell was very upset about the threat, and she had to console him and reassure him that the father would not hurt him. That’s why he stopped going to see the father, partially out of fear of the father’s violent reaction if they met again. The mother says she supported his decision.
d. Mitchell’s lawyer confirmed that description of events. Mr. Fallon said Mitchell wanted an apology from the father for threatening him. And the father’s refusal to give an apology caused Mitchell to be more entrenched in his resistance to spending time with the father.
e. But under cross-examination the mother acknowledged the exact words in the father’s text:
“If you’re going to make adult decisions, there are going to be adult consequences.”
f. The father says that was no threat. He was simply upset that his son was making bad choices. He was warning his son to think of the consequences before making foolish decisions.
g. The mother admitted under cross-examination there was no specific threat to break Mitchell’s legs or actually hurt him. But she said Mitchell interpreted that as a threat of violence. She apparently made no effort to disabuse him of that unfounded perception.
h. Mr. Fallon also said Mitchell interpreted the text as a threat of violence, even though Mr. Fallon himself acknowledged that the text actually included no threat of violence. Mr. Fallon said he didn’t challenge or further explore Mitchell’s reaction to that text, other than to note that Mitchell believed that when the father was a young man he was a tough guy, capable of violence. (The father denies ever being a tough guy, or telling Mitchell that he was a tough guy, so it’s unclear how Mitchell came to believe the father used to be a tough guy.) In any event, Mr. Fallon said that as OCL he was simply conveying Mitchell’s description of how he feels and why he feels that way.
i. Notably, there was no suggestion in the evidence that the father has ever been physically violent with the mother, or with either child.
j. So it seems really strange that somehow Mitchell and the mother jointly seemed to agree that the father’s text implied a threat to break the boy’s legs. It’s also troubling that the OCL adopted that narrative so uncritically -- that the OCL actually blames the father for not giving Mitchell the apology the boy demanded.
k. None of this makes sense.
l. I accept the father’s explanation that – on the plain words of his text – he was simply expressing parental concern that his son had just been suspended from school for 20 days for illegal behaviour. And that he was warning his son to think more carefully before doing foolish things. To smarten up.
m. How that simple text got mis-characterized as a threat of physical harm – let alone a threat to break a boy’s legs – is beyond comprehension (and certainly beyond any explanation I received during this trial).
39That’s the most troubling – but not the only – example of the OCL and the mother jointly submitting that the children’s views and preferences should be respected by the court – without even minimal scrutiny of whether the children’s stated views correspond to their actual experiences.
40The timeline of the OCL’s involvement adds to my concern.
41Mr. Fallon met with the children three times – on November 6, 2024; November 13, 2024, and January 20, 2025 – before his disclosure meeting with the parents on February 18, 2025.
a. He reported to the parents that Mitchell was prepared to spend time with the father, if the father made sure that no future visits were cancelled and if the father prioritized Mitchell and Nora over his other plans. That sounded like a hopeful start.
b. He reported that Nora insists that she only wants parenting time with the father in her discretion.
c. When Nora stopped attending for visits in May 2024 she was only eight years old.
d. When the OCL endorsed the view that Nora should have complete discretion about seeing her father, she was only nine.
e. Neither the mother nor the OCL have explained what actual experiences Nora had with the father, which caused such a young child to be so irretrievably resistant to having any contact with her father.
42In any event, Mr. Fallon met with the children again May 22, 2025.
a. Apparently both children repeated their request for complete discretion about seeing the father.
b. But there appears to have been no follow-up from the February 18, 2025 disclosure meeting.
c. Mitchell had previously identified what it would take to resume parenting time with his father. But nobody had done anything to follow up on that opportunity.
d. The father says he still tried, but his calls were ignored. The mother says the children don’t want to see the father, and she has left it up to them.
e. It’s tragic that despite the dubious “threatening text”, Mitchell identified a clear path for resumption of time with his father. And nobody seized that opportunity.
43The OCL’s last meeting with the children was May 22, 2025 – almost 10 months prior to the oral hearing of this motion.
a. I received no neutral follow-up or update as to the children’s current position.
b. At best, OCL counsel provided me with old and arguably illogical information about the children’s views and preferences.
44This may cause judges to reflect on the frequent question of whether OCL counsel should be permitted to state children’s views and preferences from counsel table, or whether a social worker should provide a clinical assist, to present the evidence more formally – and be subject to cross-examination.
a. In this case, at the Trial Scheduling Conference both self-represented parties consented to Mr. Fallon stating the children’s views and preferences.
b. Even in cases where parents’ counsel are involved, there often seems to be an unstated pressure to allow the OCL lawyer to state the children’s views. Almost as if wanting to scrutinize the OCL’s evidence would be a bit of an unnecessary nuisance.
c. There are many cases in which it is entirely appropriate for OCL counsel to state the children’s views, particularly where there is no suggestion of manipulation or alienation.
d. But in this case, the father specifically complained to the OCL that the mother had manipulated the children against him. The father also complained the OCL was perpetuating the manipulation by blindly accepting the children’s statements, without regard for obvious warning signs that what the children were saying didn’t make sense.
e. While paragraph 28 of the Agreed Statement prepared by Mr. Fallon stated that the OCL “did not observe any concerns regarding the children being influenced by the (mother)” – that conclusion seems curious, given the fact that the mother was stoking Mitchell’s unfounded fear of violence by the father.
f. Particularly when dealing with self-represented parents, there may be cases in which the OCL should consider that it may not be sufficient to propose that OCL counsel state views and preferences, without a clinical assist. Because even if the parents don’t anticipate having questions about methodology and alienation, the trial judge might have questions which OCL counsel will be hard-pressed to answer.
45It was clear from the mother’s evidence that she perceives she has little responsibility to encourage or facilitate the father having time with his children.
a. She said both children know they should have contact with their father, but it is up to them to decide whether they do so.
b. She said both children have their own electronic devices, including cell phones. The father can call them. They can call the father.
c. She neither rewards them for going or punishes them for not going. She leaves it up to them.
d. She said the problem has been created by the father, so the onus is on him to fix the problem.
e. When asked during cross-examination if the children miss the father, she said “I don’t have a yes or no answer.”
46The OCL expressed confidence in both the mother’s parenting and also in Nora’s maturity and intellectual ability to make important decisions about whether she wants to have any involvement with the father. But the evidence raised doubts about how much the court can entrust the mother and Nora to make good decisions (particularly since Nora’s decision to completely reject her father arose when she was eight years old).
a. So far in this school year Nora has missed 23.5 days of school, with an additional 36 late days.
b. During cross-examination, the father suggested to the mother that Nora is missing about 45 school days per year – not including many late days. The mother answered that she “couldn’t say yes or no” to that suggestion. The mother gave a number of evasive answers when the father asked about problems or issues within her household.
c. The mother insisted there were many reasons for Nora’s absences, but she acknowledged that getting Nora to school is a challenge.
d. Mitchell has also had problems with school performance.
e. The father says the mother allows both children to stay up late on their electronic devices. In the morning they tell her they don’t feel well enough to go to school. So the mother lets them stay home.
f. The mother conspicuously resisted the father’s suggestion that missing so much school might jeopardize a child’s academic performance. She seemed strangely evasive on this topic, given the fact that the mother herself is a teacher.
g. We often hear a primary resident parent say they can’t “force” their child to attend for visits. But where that same parent can’t seem to “force” their child to attend school, it raises broader questions about parenting skills and insight.
h. Similarly, how can we entrust 10-year-old Nora to have complete discretion about seeing her father – when her judgment about attending school seems so immature and shallow.
47The mother says both children have experienced significant anxiety, especially Nora. She says that’s why they’re both in counselling.
a. The mother seems to blame the father (although at one point under cross-examination she stated, “I don’t have an opinion”.)
b. She was resistant to the suggestion that there might be other factors affecting the children’s emotional health.
c. For example, the father questioned the mother’s decision to allow her parents to reside in her home with the children. He said her parents have a turbulent relationship with one another which resulted in a physical altercation between them. He suggested exposure to such a toxic environment on a daily basis may have impacted the children far more than their occasional visits with the father. The mother disputed that suggestion.
d. She disputed the father’s suggestion that having each child sleep in bed with her until age 10 was unhealthy, and might actually lead to confusion and separation anxiety. She said there were “studies on both sides” of co-sleeping.
e. She denied that she has been manipulating or alienating the children, or that her views about the father have undermined or complicated their relationship with him.
f. She denied that there was any significance to her telling Nora that the father’s two young daughters are “step-sisters” as opposed to “half-sisters”.
g. She had no explanation about why Mitchell wore a basketball jersey which displayed her surname on the back, rather than the father’s surname (which is the child’s legal surname). The father suggested this was one more way the mother was trying to erase the father from the children’s lives.
48So what we’re left with is the mother reporting that the children are terribly upset, and that as a result they shouldn’t be forced to see their father. But the connection between “upset” and “refusal” seems tenuous and entirely self-serving.
a. We have no information from either counsellor as to what’s going on in the children’s lives. How upset are they? Why? How does it relate to the father? What can the father do differently? What can the mother do differently? What can anyone do to make things better for these children?
b. We have simply been given the generic reference – “the children are in counselling” – with the inference that whichever parent utters those words gets to claim the moral high ground and superior insight. It’s the family court version of virtue signalling.
c. The mother says the father resisted counselling, so she had to get a court order. The father says he was always in favour of counselling, but he disagreed with her initial choice of a counsellor. Parents who really want to help their children would not get bogged down in that type of dispute.
d. The mother says counselling has helped both children. But if counselling was required because of the father-child relationship, the mother offers no suggestion that the counselling is actually addressing father-child issues.
e. The father has never been invited to participate in the children’s counselling. He has no way of knowing what their counsellors have been told, or whether recommendations were made or followed. The father has been given no ability to either receive or provide important information about the children and the father-child relationship.
f. For example, the mother has repeatedly stated the father threatened to break Mitchell’s legs – even though it is absolutely clear that this serious allegation is completely untrue. What if she or Mitchell conveyed that false information to the counsellor? Without the father’s input – without knowing the whole story – the counsellor(s) may not be able to properly address each child’s situation.
g. Getting counselling right is not just important for a court case. It’s important for these children’s lives.
h. Presumably, if either of these children is in distress, their counsellor should have as much information as possible. Balanced information, from both sides in a parenting dispute.
49The father’s health also came to be somewhat contentious:
a. The mother suggests the father’s significant and somewhat precarious health issues may actually limit his availability to interact with the children. So pressuring the children to attend for parenting time may not be fair, if the father won’t ultimately be available to exercise regular time.
b. The father counters that the stress created by this long-standing parenting dispute is actually aggravating his health. He suggested the mother is hoping the stress of this court case kills him, so she’ll be rid of him, and collect his life insurance. (The mother found this allegation offensive.)
c. Either way, I am not satisfied that the father’s medical issues should serve as an impediment to his having meaningful parenting time with his children.
d. To the contrary, where a parent has experienced life-threatening health issues, it is even more important to try to repair the parent-child relationship – while we still have time.
50OCL counsel suggested the father should take a parenting course.
a. That’s a common suggestion in parenting disputes. At worst, harmless. At best, it might help.
b. The father rejected that proposal. He says nobody has told him what he’s doing “wrong”, so he doesn’t understand what he needs to “learn.”
c. I would have thought both parents could benefit from professional help. They’re equally rigid, with limited insight.
d. She says it’s his fault. He says it’s her fault.
e. They both seem to think they have no responsibility other than to fill in some court papers and wait however long it takes for a complete stranger like a judge to fix their mess.
51In their closing submissions, the mother, the father and the OCL each proposed a new court order which has absolutely no possibility of successfully resolving these important issues.
52The mother and the OCL basically say: Have the father call or text the children weekly, and we’ll see if either of them wants to go see the father.
a. That’s exactly how this matter came to trial.
b. The father has been calling and texting. The mother and children ignore him.
c. He hasn’t seen Nora in almost two years. He hasn’t seen Mitchell in a year and a half.
d. It is insanity to think that continuing to do the same thing over and over will lead to a different result.
e. To the contrary, the longer this rift exists, the harder it’s going to be to resolve it.
53The father asks the court to resurrect a rigid schedule: Order both children to be with him on alternate weekends from Friday 6 p.m. to Sunday 6 p.m.
a. He knows it won’t happen.
b. He candidly admits no court order will ever result in him seeing his children.
c. He is convinced that he’ll have to wait until both children are older and away from the mother’s influence.
d. He hopes that he’ll be able to re-connect with his 14-year-old son and his 10-year-old daughter after they become adults.
54What a sad commentary. Basically they’re saying we’ve had a pretend trial for a pretend order offering pretend solutions. But none of this will really matter.
55Not good enough.
56This is a motion to change.
57In K.M. v. J.R., 2024 ONSC 1338 this court summarized the law with respect to motions to change parenting orders:
Rule 15 of the Family Law Rules governs the procedure for motions to change and applies to motions to change a final order for parenting and decision-making.
Section 17 of the Divorce Act sets out the Court’s authority to change a parenting order.
17(1) Variation order
A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,
(a) a support order or any provision of one, on application by either or both former spouses;
(b) a parenting order or any provision of one, on application by
(i) either or both former spouses, or
(ii) a person, other than a former spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent; or
(c) a contact order or any provision of one, on application by a person to whom the order relates.
17(5) Factors for parenting order or contact order
Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9).
- Section 16 provides direction to the court regarding factors to consider in making a parenting order. Subsection 16(7) provides that a parenting order "includes ... a variation order in respect of a parenting order", so this section applies to the present variation proceeding.
16(1) Best interests of child
The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
16(2) Primary consideration
When considering the factors referred to in subsection (3), the court shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being.
16(3) Factors to be considered
In determining the best interests of the child, the court shall consider all factors related to the circumstances of the 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 spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;
(c) each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse;
(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 cooperate, 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 cooperate 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.
16(4) Factors relating to family violence
In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor.
16(5) Past conduct
In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
16(6) Maximum parenting time
In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
16(7) Parenting order and contact order
In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.
- The Supreme Court of Canada decision in Gordon v. Goertz (1996), 19 R.F.L. (4th) 177 S.C.C. sets out a two-stage process for the court to conduct in motions to change parenting orders as follows:
a. First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
b. If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.
- The first step:
a. The previous order is presumed to be correct based upon the circumstances which existed at the time. Gordon v. Goertz (1996); Barendregt v. Grebliunas, 2022 SCC 22 (SCC); M.A.B. v. M.G.C. 2022 ONSC 7207 (SCJ).
b. The onus is on the person seeking to change the existing order to prove on a balance of probabilities that there is a material change that affects or is likely to affect the best interests of the child. There must be a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs. The change cannot be “trivial” or insignificant: it must be material. Kirichenko v. Kirichenko 2021 ONSC 2833 (SCJ); Hickey v. Hickey.
c. The change must have arisen since the making of the order or the last variation of the order. N.S. v. A.N.S. 2021 ONSC 5283 (SCJ); K.M. v. J.R. 2022 ONSC 111 (SCJ).
d. A change alone is not enough to justify a variation. The change must materially affect the child, the parents, or both. K.M. v. J.R., 2021 ONSC 111 (SCJ); Clarke v Denyes, 2023 ONSC 3984 (SCJ).
e. It must be a change which was either not foreseen or could not have been reasonably contemplated by the judge who made the previous order. The change must be substantial, continuing and "if known at the time, would likely have resulted in a different order." L.M.L.P. v. L.S., [2011] SCC 64 (SCC); Dedes v. Dedes, 2015 BCCA 194 (BC CA); Oremush v. Hickey, 2021 ONSC 6833 (SCJ); F.K. v. A.K. 2020 ONSC 3726 (SCJ).
f. The threshold determination of a material change in circumstances can be based upon a single change or event; or more commonly a combination of changes as parents and children move on with their lives. K.M. v. J.R. 2022 ONSC 111 (SCJ); M.A.B. v. M.G.C. 2022 ONSC 7207 (SCJ).
g. But trivial, insignificant or short-lived changes will not justify a variation. Hickey v. Hickey (1999), 46 R.F.L. (4th) 1 (SCC); Marinangeli v. Marinangeli, 2003 CarswellOnt 2691 (ON CA); Thompson v. Drummond, 2018 ONSC 1975 (SCJ).
h. The preliminary threshold test is aimed in part at ensuring that the parties do not resort to litigation whenever any change occurs, however minimal. Gordon; Neger v. Dalfen, 2016 ONCJ 751 (OCJ). Not every circumstance, event or mistake by a parent that detrimentally affects a child will be considered a material change in circumstances for the purposes of a variation application.
i. The passage of time and aging of a child does not automatically mean that a material change in circumstances has occurred, but it can be a factor -- depending primarily on how much time has passed since parenting arrangements were last determined. Brown v. Lloyd, 2015 ONCA 46 (ON CA); Clarke v Denyes, 2023 ONSC 3984 (SCJ). As a child ages, their needs can change in relation to each of the parents. Bealo v. Badom 2022 ONSC 5372 (SCJ). Particularly for younger children, a change in a child’s age or level of maturity measured over just a few years will rarely constitute a material change, without further evidence that the existing order is no longer adequate. Gray v. Wiegers, 2008 SKCA 7 (Sask CA); Coppin v Arboine 2018 ONSC 7149 (SCJ). Where more time has passed -- and especially dealing with adolescent children whose views may become a more relevant factor – the evolution of a child’s needs and/or a parent’s ability to meet those needs can cumulatively constitute a material change. Amiri v Nazer, 2022 ONSC 3607 (SCJ); Warr v Riettie 2019 ONSC 1868 (SCJ); Stirling v. Blake, 2013 ONSC 5216 (SCJ).
j. A change in a party’s availability to exercise parenting time with a child (for example, a change in employment status or schedule) may constitute a material change in circumstances. Burton v. Brown, 2021 ONCJ 322 (OCJ).
k. Repeated or protracted breaches of a court order can constitute a material change in circumstances. L.W-A v. JC 2017 ONCJ 741 (OCJ); Maloy v. Pantalone, 2021 ONSC 7734 (SCJ). Clarke v Denyes, 2023 ONSC 3984 (SCJ). A party’s extensive 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 a harmful effect on the child. Chin Pang v. Chin Pang, 2013 ONSC 2564 (SCJ); Zaidi v. Qizilbash, 2014 ONSC 3652 (SCJ); Merkand v. Merkand, 2006 CarswellOnt 712 (ON CA); V.J.S. v. L.J.G. (2014), O.J. No. 2238 (SCJ); Roloson v. Clyde, 2017 ONSC 3642 (SCJ).
l. 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. M.A.B. v. M.G.C. 2022 ONSC 7207 (SCJ). Conversely, if the order was predicated on the expectation that certain things would happen – and those things don’t happen – the failure to fulfill the order’s expectations may also constitute a material change in circumstances.
m. Even if both parents seek to change the existing order – for similar or different reasons – that mutual desire for a new order isn’t enough. Unless the court is able to make an explicit finding that a material change in circumstances has arisen since the previous order was made, the court is without jurisdiction to make a variation order. Persaud v. Garcia-Persaud, 2009 ONCA 782 (ON CA); Kapadia v. Kwok, 2023 ONSC 3700 (SCJ)
n. The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing parenting order.
o. The requirement of a material change in circumstances means that a motion to change cannot be an indirect route of appeal from the original custody and access order. The court must assume the correctness of the first order and consider only the changed facts since the first order was made. Kirichenko v. Kirichenko 2021 ONSC 2833 (SCJ); Docherty v. Beckett (1989), 21 R.F.L. (3d) 92 (ON CA)
p. At this stage, the court should allow only limited consideration of the evidence predating the order to understand how it was made, in order to determine if a material change in circumstances has been established. Hornan v. Hornan, 2007 CarswellMan (Man. Q.B.); E.M. v. M.Q., 2021 ONCJ 533 (OCJ). However, once material change is shown, the court can engage in a full inquiry, including facts that predate the order. Segal v. Segal (2002), 26 R.F.L. (5th) 433 (ON CA).
q. If there is no explicit finding of a material change in circumstances, the inquiry ends. The court would be without jurisdiction to vary the order. Litman v. Sherman, 2008 ONCA 485 (ON CA).
r. If there is a material change, the court must move to the second stage and consider the best interests of the child and whether to vary the original order.
- The second step:
a. Once a material change in circumstances has been established, the court then embarks on a fresh inquiry into the best interests of the child. P. v. G.-P., 2009 ONCA 782 (ON CA). The analysis becomes “prospective in nature”. Barendregt v Grebliunas, 2022 SCC 22 (SCC); Khairzad v. Erroussa 2023 ONSC 6741 (SCJ).
b. The court must consider the non-exhaustive list of best interests factors set out in section 16(3).
c. In this fresh inquiry, all parties bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of maintaining the existing timesharing arrangements. The court should consider the matter afresh without defaulting to the existing arrangement. Bubis v. Jones (SCJ); Persaud v. Garcia-Persaud, 2009 ONCA 782 (ON CA); Deslauriers v. Russell, 2016 ONSC 5285 (SCJ); Roloson v. Clyde, 2017 ONSC 3642 (SCJ); E.M. v. M.Q., 2021 ONCJ 533 (OCJ)
d. At this stage the court should consider all the evidence -- which may include evidence predating the previous order – to conduct a comprehensive analysis of the best interests of the child. Segal v. Segal, (2002); E.M. v. M.Q., 2021 ONCJ 533 (OCJ).
e. At the second stage of the analysis, the best interests test is the only test to be applied. E.M. v. M.Q., 2021 ONCJ 533 (OCJ); Young v. Young.
f. The court must ascertain the child's best interests from the perspective of the child rather than that of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child. Gordon v. Goertz; Young v. Young; Proulx v. Proulx, 2022 ONCA 428 (ON CA)
g. Similarly, the court’s disapproval or sanctioning of one parent’s inappropriate behaviour should not result in an order which creates entitlements by the other parent which are not in the best interests of the child. Ruffudeen-Coutts v. Coutts, 2012 ONCA 263 (ON CA).
h. Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs. Gordon v. Goertz.
i. On a motion to change, the court has the option of restricting changing the existing order to address a specific issue, while maintaining its integrity. Elaziz v. Wahba, [2017] ONCA 58 (ON CA); White v. White, 2022 ONCJ 2 (OCJ).
j. Courts should be cautious about changing a long-term parenting arrangement unless compelling circumstances dictate otherwise. Ceho v. Ceho, 2015 ONSC 5285 (SCJ); Batsinda v. Batsinda, 2013 ONSC 7869 (SCJ); Green v. Cairns (SCJ); K.M. v. R.J., 2022 ONSC 111 (SCJ); Alves v. Galloway, 2023 ONSC 7209 (SCJ).
58On the threshold issue, I find that there has been a material change in circumstances relating to decision-making and parenting-time. That allows me to make the consent order granting the mother sole decision-making authority.
59The parenting-time issue is more challenging.
60In Barendregt v. Grebliunas, 2022 SCC 22, the Supreme Court of Canada clarified the correct approach with respect to the section 16(6) “maximum parenting time” requirement.
133What is known as the maximum contact principle has traditionally emphasized that children shall have as much contact with each parent as is consistent with their best interests. A corollary to this is sometimes referred to as the “friendly parent rule”, which instructs courts to consider the willingness of a parent to foster and support the child’s relationship with the other parent, where appropriate: see Young, at p. 44. Both of these considerations have long been recognized by the Divorce Act: see Divorce Act, pre-amendments, ss. 16(10) and 17(9); and Divorce Act, post‑amendments, ss. 16(6) and 16(3)(c).
134Although Gordon placed emphasis on the “maximum contact principle”, it was clear that the best interests of the child are the sole consideration in relocation cases, and “if other factors show that it would not be in the child’s best interests, the court can and should restrict contact”: Gordon, at para. 24; see also para. 49. But in the years since Gordon, some courts have interpreted what is known as the “maximum contact principle” as effectively creating a presumption in favour of shared parenting arrangements, equal parenting time, or regular access: Folahan v. Folahan, 2013 ONSC 2966, at para. 14; Slade v. Slade, 2002 YKSC 40, at para. 10; see also F. Kelly, “Enforcing a Parent/Child Relationship At All Cost? Supervised Access Orders in the Canadian Courts” (2011), 49 Osgoode Hall L.J. 277, at pp. 278 and 296-98. Indeed, the term “maximum contact principle” seems to imply that as much contact with both parents as possible will necessarily be in the best interests of the child.
135These interpretations overreach. It is worth repeating that what is known as the maximum contact principle is only significant to the extent that it is in the child’s best interests; it must not be used to detract from this inquiry. It is notable that the amended Divorce Act recasts the “maximum contact principle” as “[p]arenting time consistent with best interests of child”: s. 16(6). This shift in language is more neutral and affirms the child-centric nature of the inquiry. Indeed, going forward, the “maximum contact principle” is better referred to as the “parenting time factor”.
61In recent years courts have emphasized the need to seek out and consider the views and preferences of the child in determining parenting issues affecting the child. Mattina v. Mattina, 2018 ONCA 641 (ONCA). It is now mandated as a required best interest factor pursuant to section 16(3)(e).
a. A child's wishes are an important consideration – and they become increasingly important as the child gets older. This means 14-year-old Mitchell’s views should likely be given more weight than 10-year-old Nora’s.
b. In any event, a child’s stated views or preferences are not necessarily determinative, particularly if the views are not expressed independently. Children's Aid Society of Haldimand and Norfolk v. J.H. and M.H, 2020 ONSC 2208 (SCJ); B. v. W. 2022 ONSC 934 (SCJ).
c. A child’s views are not to be confused with the child’s best interests. A child’s views are but one factor to consider in the best interests of the child analysis. K. v. B., 2025 ONSC 6003 (SCJ).
62Ultimately, the weight to be attached to an expression of a preference depends on the facts, as well as the age, intelligence, apparent maturity and the ability of the child to articulate a view. Decaen v. Decaen, 2013 ONCA 218 (ONCA); Stefureak v. Chambers (2004) (SCJ).
63A child’s wishes given less weight where one parent has undermined the relationship with the other parent. Pettenuzzo-Deschene v. Deschene [2007] O.J. No. 362; A.G.L. v. K.B.D. [2009] O.J. No. 160; Tock v. Tock, [2006] O.J. No. 5324 (SCJ) O. (C.) v. O. (D.), 2010 ONSC 6328 (SCJ); Decaen v. Decaen, 2013 ONCA 218 (ONCA).
64The mother and the OCL both urge me to simply respect the wishes of a 14- and 10-year-old, and allow them to decide for themselves whether they wish to embrace or completely reject their father. It would be easier to accept that submission if I had any level of confidence that the mother had done her part to promote and repair the father-child relationship. But her “leave it to them” attitude suggests she is jarringly unaware of her own responsibilities as a separated parent.
65Although it was a contempt case (which, fortunately, this is not) in Jackson v Jackson 2016 ONSC 3466 Justice Chappel thoroughly reviewed the law as it relates to parenting issues and the common complaint about a denial of what was previously referred to as access:
63 The law relating to contempt in custody and access cases has evolved over the past several years in response to these challenges so as to make the contempt remedy available in appropriate situations where alienation has occurred, or where one parent has not been supportive of access. The courts have held that a custody and access order imposes a general obligation on the parties to the order to do all that they reasonably can to ensure that the order is complied with (Godard, Supra.; Quaresma v. Bathurst, [2008] O.J. No. 4734 (S.C.J.);Campo, Supra.; K. (B.) v. P.(A.), [2005] O.J. No. 3334 (S.C.J.); Hatcher, Supra.; Sickinger, Supra.; Haywood v. Haywood, 2010 ONSC 5615, 2010 CarswellOnt 7701 (S.C.J.); Stuyt v. Stuyt, 2009 CarswellOnt 3432 (S.C.J.)). Having regard for this obligation, the courts have concluded that the contempt remedy may be available where the moving party establishes beyond a reasonable doubt that the other party has failed to take all reasonable steps to ensure compliance with the order (Godard, Supra.). In this regard, the case-law has established the following principles respecting a party's obligation to promote compliance with a custody and access order:
a) A party cannot simply leave the questions of custody and access up to the child. To do so amounts to an abdication of parental responsibility generally and a breach of the party's positive obligations under the order (Godard, Supra.; McGinn v. McGinn, 2006 SKQB 105 (Q.B.); Blair v. Blair, [1995] O.J. No. 2962 (S.C.J.); Howe v. Whiteway, 2015 SKCA 72 (C.A.); Gharabegian v. McKinney, 2008 CarswellOnt 7884 (S.C.J.); Quaresma, Supra.; K. (B.) v. P.(A.), [2005] O.J. No. 3334 (S.C.J.); Hatcher, Supra.; Sickinger, Supra.;Haywood, Supra.) As Quinn, J. stated in Geremia, Supra.:
Undoubtedly, there are many tasks that a child, when asked, may find unpleasant to perform. But ask we must and perform they must. A child who refuses to go on an access visit should be treated by the custodial parent the same as a child who refuses to go to school or otherwise misbehaves. The job of a parent is to parent.
b) While it may become more difficult to compel a child to comply with a custody and access order as the child gets older, the obligation of a parent to actively promote compliance does not wane based on the child's age (Godard, Supra.).
c) In the case of access orders specifically, the custodial parent's obligation in regard to access goes beyond simply accommodating it, making the child available for access and encouraging the child to comply. Rather, the parent must require that access occur and actively facilitate it (Godard, Supra.; V.(S.) v. I. (T.), 2009 CarswellOnt 1023 (S.C.J.); Hatcher, Supra.; K.(B.) v. P.(A.), Supra.;Sickinger, Supra.; Haywood, Supra.; Tran v. Chen, 2012 ONSC 3994, 2012 CarswellOnt 8551 (S.C.J.); Styut, Supra.; Scrivo v. Scrivo, 2013 CarswellOnt 5156 (S.C.J); Campo, Supra.).
d) Actively promoting and facilitating compliance with a custody and access requires the parent to "take concrete measures to apply normal parental authority to have the child comply..." (Godard, Supra.; Wright v. Meyer, 2012 CarswellOnt 14827 (S.C.J.)). In determining whether appropriate measures were taken, the court should consider whether the custodial parent did the following:
i. Did they engage in a discussion with the child to determine why the child is refusing to go?
ii. Did they communicate with the other parent or other people involved with the family about the difficulties and how to resolve them?
iii. Did they offer the child an incentive to comply with the order?
iv. Did they articulate any clear disciplinary measures should the child continue to refuse to comply with the order? (Godard, Supra.; Jackscha v. Funnell, 2012 CarswellOnt 10467 (S.C.J.)).
e) The determination as to whether the alleged contemnor has taken reasonable steps to require the child to attend visits will ultimately depend on the unique facts of every case. The analysis must take into consideration the child's age, their growing opinions and the evidence regarding their emotional status (Stupple, Supra.).
f) The contempt remedy may also be available where the alleged contemnor has engaged in a history of conduct that has had the effect of generally sabotaging the custody and access order (Brooks, Supra.; Paton, Supra). For example, evidence that a parent has a history of intentionally frustrating or inappropriately suspending access, or negatively influencing a child against the other parent to the point that the child is refusing to comply with the custody and access order may lead the court to conclude that the party thwarted the order and may support a contempt finding (Godard, Supra.; Rego, Supra.; Thomas v. Pearcy (1993), 48 R.F.L. (3d) 407 (Ont. Gen. Div.); Wood v. Miller (1993), 45 R.F.L. (3d) 244 (Ont. U.F.C.); Campbell v. Campbell, 1994 CarswellOnt 4468 (Gen. Div.); Ebrahim v. Ebrahim, 2000 BCCA 398 (C.A.); Paton, Supra.; Cooper v. Cooper, [2004] O.J. No. 5096 (S.C.J.)); L. (A.G.) v. D. (K. B.), Supra.; V.(S.) v. I. (T.), Supra.; Courtney v. Sambray, 2015 ONSC 4872 (S.C.J.); Carr-Carey v. Carey, 2014 ONSC 5441 (S.C.J.); Perna v. Foss, 2015 ONSC 5636 (S.C.J.). The challenge in these cases is to determine whether it is a true case of parental alienation or a situation of justified estrangement between the child and the parent.
66Parents are not required to do the impossible to ensure that a child sees the other parent. They are, however, required to do all that they reasonably can. Parents are expected to take concrete measures and apply normal parental authority to ensure a child’s compliance with a parenting time order. Godard v Godard 2015 ONCA 568 (ON CA). Physical force is neither necessary nor appropriate. But active encouragement, persuasion and persistence are required.
67Each parent has a positive obligation to ensure that a child who allegedly resists contact with the other parent complies with a parenting-time order. Saunderson v. Saunderson, 2022 ONSC 3475 (SCJ); Godard v Godard 2015 ONCA 568 (ON CA); Campo v. Campo, 2015 ONSC 1349 (SCJ); Stuyt v. Stuyt(SCJ); Hatcher v. Hatcher(SCJ).
68A parent cannot hide behind the child’s purported wishes as a reason not to comply with a parenting order. Wilson v. Villeneuve, 2022 ONSC 2886 (SCJ). It is the parent’s responsibility to act as the adult in the situation and take appropriate steps to comply with an order. King v. King, 2016 ONSC 3752 (SCJ); Munro v. Munro, 2023 ONSC 4615 (SCJ).
69There may be understandable reasons why the mother has come to be the “favoured parent” for both Mitchell and Nora. But once we know the children have a “favoured parent”, the court must be alive to the extraordinary influence the favoured parent may have over children – either intentionally or not. Particularly where the children’s antipathy toward the disfavoured parent lacks logical justification.
70In this case, I find that there is no discernable connection between the negativity and resistance the children are expressing toward the father, and their actual experiences with the father. This is a hallmark characteristic of alienation.
71Parental alienation has been defined as “a child’s strong resistance or rejection of a parent that is disproportionate to that parent’s behaviour and out of sync with the previous parent-child relationship”. Ciarlariello v. Iuele-Ciarlariello, 2014 ONSC 5097 (SCJ); Botros v. Botros, 2022 ONSC
72It is also “the notion that the child’s decision to refuse to have a relationship with the targeted parent is without justification or without convincing reason.” Ciarlariello v. Iuele-Ciarlariello, 2014 ONSC 5097 (SCJ); G.Y. v. C.Y., 2024 ONSC 1673 (SCJ).
73Of particular concern is the mother’s participation – whether active or passive -- in Mitchell’s unfounded fear that the father had threatened to break the boy’s legs.
a. It’s worth noting again: There was no suggestion that the father has ever been violent. Not to the mother. And not to either child.
b. And yet this “fear of violence” narrative loomed large in the mother’s explanation of Mitchell’s rejection of the father.
c. It’s hard to believe that both the mother and Mitchell misunderstood the simple parental admonition to a teenager: “If you’re going to make adult decisions, there are going to be adult consequences.”
d. Under cross-examination, the mother acknowledged that the father didn’t actually threaten to break Mitchell’s legs or physically harm him in any way. So she didn’t misunderstand.
e. And if Mitchell was the one who misunderstood the father’s text, the mother had an obligation to correct such a serious misapprehension, and reassure the child that there was in fact no danger. Why would a mother sit back and allow a child to needlessly worry about violence from a father?
f. Instead – for whatever reason – she perpetuated this false notion that the father was dangerous, by promising to protect Mitchell from a threat she knew was non-existent.
g. And she allowed the big lie to grow by letting her son repeat this false narrative to the OCL lawyer, without setting the record straight.
h. She even backed the son’s demand that the father apologize – for something she knew the father hadn’t done.
74For many good reasons, courts have developed a heightened awareness of the far-reaching impact of family violence in parenting disputes. But in this case, a real question arises as to which of theses parents was the actual perpetrator of family violence.
75Section 2(1) of the Divorce Act sets out an expansive definition of what constitutes family violence:
"family violence" means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
(i) the killing or harming of an animal or the damaging of property;
76With its expanded definition, family violence can take many forms.
a. Family violence is not limited to physical assault. It embraces a range of behavior which includes mental and emotional abuse, with implications that spill-over to children. CCAS v. I.B. et al., 2020 ONSC 5498 (SCJ); Singh v. Kaur, 2025 ONSC 4122 (SCJ); Luque v. Garcia, 2025 ONSC 2779 (SCJ).
b. Family violence can be insidious, and frequently involves coercive and controlling behaviors which can create an imbalance of power in a relationship. Abaza v. Adam, 2023 ONSC 1776 (SCJ);
c. Violence need not be physical. Emotional and psychological abuse can have a devastating impact on a child. B. v. W. 2022 ONSC 934 (SCJ); Dayboll v. Binag, 2022 ONSC 6510 (SCJ); Khan v. Khan 2024 ONSC 1922 (SCJ); K.K.H. v. A.A.B., 2024 ONCJ 113 (OCJ); A.S.A. v. T.I., 2025 ONCJ 51 (OCJ); Rasmussen v. Fasulo, 2025 ONCJ 349 (OCJ); A.B. v. K.S., 2025 ONCJ 614 (OCJ).
d. Denigration of the other parent in front of the children has been found to fit within the definition of family violence: Ammar v. Smith, 2021 ONSC 3204 (SCJ); McIntosh v Baker, 2022 ONSC 4235 (SCJ); N.M. v. S.M., 2022 ONCJ 482 (OCJ); F.S. v. M.B.T. 2023 ONCJ 102 (OCJ); T.D.S. v. J.M., 2023 ONCJ 407 (OCJ)
e. A parent who engages in alienation is engaging in emotional abuse towards the child. It is a form of family violence. S. v. A., 2021 ONSC 5976 (SCJ); Epshtein v. Verzberger-Epshtein, 2021 ONSC 7694 (SCJ). W.A.C. v. C.V.F., 2022 ONSC 2539 (SCJ).
f. Behaviour is broadly considered “controlling” if its intent or effect is to inappropriately manage, direct, restrict, interfere with, undermine or manipulate any important aspect of the other person’s life, including their important relationships and their physical, emotional, intellectual, spiritual, social and financial autonomy or well-being. MAB v MGC, 2022 ONSC 7207 (SCJ).
g. Coercive and controlling behaviour is distinct from other forms of family violence in that it can consist of many different types of acts occurring over time which, in isolation, do not seem abusive or significant, but which paint a picture of a very destructive relationship when viewed in their totality. VKG v IG, 2023 ONSC 6329 (SCJ).
77In Barendregt v. Grebliunas 2022 SCC 22 the Supreme Court of Canada addressed the relevance of family violence in parenting determinations and stated
a. Courts have increasingly recognized that any family violence or abuse may affect a child’s welfare and should be considered when determining a parenting order.
b. The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives. Being a perpetrator of domestic violence is relevant to “parenting ability.”
c. Abusive dynamics often do not end with separation. In fact the opposite is often true.
d. Harm to children can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it.
e. Domestic violence allegations are notoriously difficult to prove. Family violence often takes place behind closed doors and may lack corroborating evidence. Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support.
f. The prospect of repeated or protracted litigation may deter abuse survivors from coming forward. The evidence shows that most family violence goes unreported.
g. The amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis: s. 16(3)(j) and (4). The Divorce Act broadly defines family violence in s. 2(1) to include any violent or threatening conduct, ranging from physical abuse to psychological and financial abuse. Courts must consider family violence and its impact on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child.
78Of course, there can be many reasons why a child may resist contact with a parent, and not all resistance is the result of alienation. Children may exhibit:
a. An affinity for one parent (relating to age, gender, common interests or a prolonged absence from the other parent).
b. An alignment (arising from a loyalty conflict or coping mechanism to the parental separation).
c. A realistic estrangement (justified rejection).
d. Alienation (unjustified rejection).
79To add further complication, even where alienation exists, it may be intentional, unintentional – or a combination of the two.
80Parental alienation is a legal concept as opposed to a mental health diagnosis and, as such, the court can make a finding of alienation based upon an analysis of the facts alone without expert evidence. A.M. v. C.H., 2019 ONCA 764 (ON CA); Malhotra v Henhoeffer, 2018 ONSC 6472(SCJ); R.N. v. A. N. 2021 ONSC 6461 (SCJ); Bouchard v. Sgovio (2021), 63 R.F.L. (8th) 257 (ON CA); Cousins v. Healey, 2025 ONSC 5512 (SCJ); Newton v. Grillo, 2025 ONSC 3565 (SCJ).
81Regrettably, some aspects of this case remain unclear (which is why I’m not going to make a final order).
82Neither self-represented parent did a particularly effective job either presenting their evidence or cross-examining the other.
83The OCL missed an obvious red flag that this was more than a “views and preferences” case. Assigning a social worker for a clinical assist really would have helped.
84The father is not blameless. But I am left with a deep concern about the mother’s narrative, action and inaction.
a. Her explanation of Mitchell’s perspective is founded on deception, or at the very least an exploitation of a critical misunderstanding.
b. Her explanation of Nora’s perspective is shallow and unconvincing. Neither she nor the OCL considered that the unwarranted demonization of the father in Mitchell’s eyes may well have tainted his younger sister’s perceptions.
c. The mother’s lack of motivation to repair and promote the father’s relationship is troubling.
85The mother has attempted to discredit the father through allegations of violence. But by encouraging or allowing her son to worry about a non-existent threat of physical harm from the father, she herself has committed family violence in the form of psychological abuse.
86In closing submissions the mother urged the court to make a final decision on her motion to change, for the sake of closure.
a. She says the children want this case finished.
b. She argued that prolonging this litigation will simply compound the stress the children are experiencing.
c. She suggested the court should respect the children’s wishes, make an order the children are comfortable with, and let them get on with their lives.
87It is always tempting to bring a long-standing, bitter family court dispute to a conclusion.
88But given my concern that the children have so conspicuously aligned themselves with the mother for little apparent reason, her suggestion that we simply acquiesce to the status quo is a self-serving cop-out.
89I honestly don’t know if either child’s relationship with the father is salvageable. But we have an obligation to keep trying.
90The children are already in individual counselling, but I have no information as to the extent to which the counselling is addressing the issues raised in this trial. In any event, when I raised the topic I was advised that the existing counsellors are not prepared to provide what I believe may be helpful in this case: reunification therapy.
a. The Court has the authority to order reunification therapy. A.M. v. C.H. 2019 ONCA 764 (ONCA).
b. Judges have broad authority under sections 16(a) and 16(2) of the Divorce Act to make orders for counselling or therapy. Testani v. Haughton, 2016 ONSC 5827 (SCJ); C.B. v. E.G. 2023 ONSC 1571 (SCJ); F.S. v. M.B.T. 2023 ONCJ 102 (OCJ); R.S. v. S.A., 2023 ONSC 5189 (SCJ)
c. Pursuant to section 16(8) of the Divorce Act, reconciliation counselling or reunification therapy may be ordered as part of the court’s authority and responsibility to promote and safeguard best interests of the child. C.M.W.T. v. M.M.M. 2021 ONSC 4809 (SCJ); B.W.G. v. N.H.M. 2021 ONSC 2727 (SCJ); K. v. B., 2025 ONSC 6003 (SCJ).
d. Reunification therapy is often ordered in – but not restricted to -- cases of alleged parental alienation. A.M. v. C.H.; X. v. Y., 2016 ONSC 545 (SCJ); MacLeod v. MacLeod, 2022 ONSC 2457 (SCJ); F.S. v. M.B.T. 2023 ONCJ 102 (OCJ).
e. But the court must consider each family’s unique circumstances and dynamics, before deciding whether to require parents and children to participate in therapeutic counselling.
f. There are both risks and benefits to making therapeutic orders which should be considered in the context of the unique facts and specific circumstances of each case. A.M. v. C.H. 2019 ONCA 764 (ON CA)
g. The court should exercise its discretion to make such orders sparingly. There must be compelling evidence that the therapy will be beneficial to the child. Butler v. Allen 2020 ONCJ 300 (OCJ); Antunes v. Antunes 2022 ONSC 6450 (SCJ) Leelaratna v. Leelaratna, 2018 ONSC 5983 (SCJ).
h. The request for mandatory therapeutic involvement should be supported by a detailed proposal identifying the proposed counselor and what is expected. Kaszap v. Volk 2019 ONSC 4162 (SCJ); Testani v. Haughton, 2016 ONSC 5827 (SCJ); F.S. v. M.B.T. 2023 ONCJ 102 (OCJ).
91None of the parties proposed reunification therapy during the trial. But when I suggested it after receiving closing submissions, both parents immediately agreed it was a good idea, and they would consent to such an order. It’s too bad it took a three-day trial to get people thinking about such an obvious solution.
92We agreed to adjourn the matter to a date to be spoken to, to allow the parties to report back on their efforts to select and retain a professional to provide reunification therapy, possibly with assistance through one or both of their employment benefit plans.
93As an aside, Mr. Fallon indicated that the OCL generally opposes re-unification therapy without the express consent of the child. I will allow the OCL to make further inquiries and confirm its position on the return date. However, given the fact that both parents are now consenting to reunification therapy – and given the fact that I have already expressed concern about the OCL’s uncritical acceptance of the children’s verbalizations in highly suspicious circumstances – I may need some convincing if the OCL ends up being the lone holdout on the issue of reunification therapy.
94Today’s order: The orders of December 9, 2020 and October 4, 2022 are changed as follows:
95On consent:
a. Final order: The Respondent mother shall have primary residence and sole decision-making authority in relation to the children Mitchell and Nora (correct names and dates of birth withheld).
b. The parenting time issue is adjourned to April 28, 2026 at 9:30 a.m. to be spoken to, by Zoom, for the parties to report back on the issue of reunification therapy. The parents are to provide an update as to their efforts to identify and select a professional to conduct reunification therapy. The OCL may provide any submissions it deems appropriate, on the issue of reunification therapy.
96Not on consent, final variation:
a. Commencing April 1, 2026 the Applicant father shall pay to the Respondent mother support for the children in the sum of $686.00 per month, based upon his income of $45,767.00 as set out in his 2024 Notice of Assessment. Arrears for the period prior to April 1, 2026 are fixed in the sum of $1,170.00.
b. Commencing April 1, 2026 the Applicant father shall contribute 32% toward the children’s section 7 expenses, with his annual contribution (combined for both children) not to exceed $400.00. This is based on the mother’s income being $95,733.00. Arrears of section 7 contributions for the period prior to April 1, 2026 are fixed at $800.00.
c. The total amount owing by the father for the period prior to April 1, 2026 shall be repaid at the rate of $50.00 per month, commencing April 1, 2026.
d. Support deduction order to issue.
Justice Alex Pazaratz
Released: March 24, 2026
CITATION: R.M. v. D.S., 2026 ONSC 1795
COURT FILE NO.: FC-19-00001248-0001
DATE: 2026-03-24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
R.M.
Applicant
– and –
D.S.
Respondent
REASONS FOR JUDGMENT
Pazaratz J.
Released: March 24, 2026