CITATION: B.D. v. T.J., 2026 ONSC 3892

COURT FILE NO.: FS-14-0282-003

DATE: 2026-07-03

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

B. D.

Applicant

– and –

T. J.

Respondent

Lauren Conti, for the Applicant

Self-Represented, for the Respondent

HEARD: January 9, 2026, additional written submissions dated January 15, 2026, and January 19, 2026, at Thunder Bay, Ontario

The Honourable Madam Justice C.M. Brochu

Reasons for Judgment

Background and Overview

The Parties and Existing Orders

1The parties¹ started cohabitating in January 2012. They separated in June 2014.

2There is one child of the relationship, P.J.J.D, born September 15, 2013 (the “child”).

3There are two final court orders (the “Final Orders”) that address the issues resulting from the parties’ separation. They were both obtained on consent:

a) The order of Shaw J. dated June 4, 2015 (the “2015 Order”).

b) The order of Newton RSJ. dated May 28, 2018, which amends provisions relating to parenting time and child support (the “2018 Order”).

4I also made a temporary order on consent dated July 22, 2025, for the payment by the Applicant to the Respondent of child support in the amount of $1,070.00 per month commencing on August 1, 2025, based on his 2024 income.

Overview of Proceedings

5On May 8, 2025, the Applicant filed a Motion to Change seeking to vary the Final Orders. He is seeking to vary his parenting time, child support, and is requesting the involvement of the Office of the Children’s Lawyer (“OCL”).

6In essence, the Applicant is seeking to vary the existing order wherein he has parenting time for two extended weekends per month from Thursday to Monday. This is based on his employment schedule of a rotating two weeks on/two weeks off. He would like to transition to a shared parenting time schedule wherein the child would be in his care for a period of two weeks when he is off work.

7The other changes requested to the parenting time holiday schedule and child support would be an adjustment resulting from the proposed shared parenting time arrangement.

8The Respondent has advanced a claim for arrears, retroactive child support, and an adjustment of the ongoing support. The adjustment of ongoing child support was addressed, as noted above, in my Order dated July 22, 2025. She is also seeking an order declaring the Applicant a vexatious litigant and that he be required to obtain leave before commencing any future Motion to Change that are based on material change in circumstances.

9The Respondent has brought this summary judgment motion seeking a dismissal of the Applicant’s motion to change.

10The Applicant has brought his own motion requesting the involvement of the OCL to ascertain the views and preferences of the child. On September 18, 2025, I granted leave allowing this motion to be heard at the same time as the summary judgment motion.

Parties’ Positions

The Respondent

11The Respondent submits that there is no genuine issue requiring a trial on the threshold question of material change.

12She states that the Applicant has failed to establish a material change in circumstances since the Final Orders. It is argued had they are no new, unanticipated, or material changes affecting the child. The allegations relate either to circumstances expressly contemplated by the Final Orders or to ordinary parenting disputes that do not, individually or cumulatively, meet the jurisdictional threshold.

13Consequently, it is advanced that this Court lacks jurisdiction to reopen the issue of parenting time or support and that the motion to change must be dismissed.

14The Respondent opposes the appointment of the OCL.

15The Respondent also seeks that the Court quantify, for the purpose of enforcement with the family responsibility office, payment of outstanding arrears of child support and section 7 expenses under the Final Orders.

The Applicant

16The Applicant submits that the summary judgment motion should be dismissed as there is a genuine issue for trial. It is stated that there is a triable issue as to whether there has been a material change in circumstances.

17It is argued that the Applicant has provided extensive compelling evidence to contradict the Respondent’s evidence.

18It is advanced that the disputed claims of the respective parties’ are broad, as they include child support arrears, decision-making responsibility, parenting time and conflict. Furthermore, the evidence before the Court includes disputed materials and issues of credibility.

19These multiple issues require a decision by the Court. They are questions of fact, not law, and cannot be decided based on the disputed evidence before the Court.

20The Applicant further requests that the Court decide the threshold issue of material change in circumstances – remaining as a triable issue would be the inquiry into the best interests of the child.

21The Applicant also submits that the views and preferences of the child will be important to determine whether a variation in parenting time is in the best interest of the child. Accordingly, he requests the appointment of the OCL.

Summary of Evidence

The Applicant

22The Applicant’s evidence was organized in categories, which I will follow for ease of reference.

23The Applicant states that the evidence sets out multiple grounds showing a material change in circumstances. These changes are outlined as follows:

• The Applicant’s change in employment.

• The increase in conflict between the parties and hostile communication.

• The Respondent frustrates the relationship between the Applicant and the child.

• The Respondent makes unilateral decisions about the child without informing the Applicant.

• The Respondent prevents the Applicant from speaking with third parties about the child.

• The views and preferences of the child.

24I intend on addressing each of the above separately.

1) The Applicant’s Change in Employment

25In 2018, the Applicant worked for a contractor at a mine in Labrador City, Newfoundland, with a two-week or three-week rotation schedule.

26Given the nature of the Applicant’s employment, the parenting time in the Final Orders takes into consideration his work schedule.

27The 2018 Order indicates that the Applicant’s general access was based on the Applicant’s work schedule, wherein he worked on a four-week rotation, working out of town for two consecutive weeks, travelling for two days, and in Murillo/Thunder Bay for a period of 12 consecutive days. Based on this work schedule, general access was as follows:

• During the 12 days that he was in Thunder Bay, the Applicant would pick up the child from school or daycare on the Thursday and return the child to daycare or school the following Monday morning, referred to as an “extended weekend”.

• The 2018 Order contemplated that should the father obtain employment in Thunder Bay; his access would then be every other weekend.

• The accommodation for the Applicant's work schedule was addressed by providing that during his two weeks off work, the Applicant would have two “extended weekends” commencing Thursday until Monday. These “extended weekends” were to continue during layoffs, terminations, and vacations. Specifically indicating that the two period of access would be in a 28-day period. This was to apply wherever he would be living or working regardless of the particular shift work or the duration of the “away” period or “at home” period.

28As of February 2024, the Applicant is working with Greenstone Mines in Geraldton on a two week on/two week off rotation. It is noted that Geraldton is approximately 276 kilometres from Thunder Bay, a three-hour drive as opposed to Labrador City that was approximately 2,653 kilometers from Thunder Bay and required one to two travel days. It is the Applicant's position that his new schedule ensures that he is home for 14 consecutive nights every rotation, and in the event of an emergency, he is also able to return home within approximately 3 to 4 hours.

29He states that he now has a fixed schedule. He is at home for a full two weeks. And he is more readily available.

2) The Increase in Conflict between the Parties and Hostile Communication

30It is advanced that since January 2025, the conflict between the parties has continued to escalate.

31In his materials, the Applicant offered some examples of the conflict and hostile communication. These are series of texts where the Respondent berates the Applicant with insults, incessantly texts, questions and minimizes the importance of the Applicant’s involvement and ability to participate in the child’s everyday life.

32This shift in behaviour and hostility has not only been aimed at the Applicant, but at his family. An affidavit was provided by both the Applicant’s partner and his mother in which they indicate that prior to 2025, they had good communication with the Respondent.

33At times, the Respondent made plans through the Applicant’s partner for the child and his cousin. However, this no longer occurs, and the texts sent have been hurtful, mean and hostile.

34The same type of relationship prevailed with the Applicant’s mother. She would assist and spend some time with the child, even when the Applicant was away at work. In her affidavit, she writes being surprised when in April 2025 she was told by the Respondent to no longer go see the child after his sporting events and that they were to only speak to the child when he is in his father’s care.

35It is advanced that the above shows a departure from what used to be a much more amicable relationship between the Respondent, his family, and the Applicant.

3) The Respondent Frustrates the Relationship between the Applicant and the Child

36It is the Applicant’s position that the Respondent will now often schedule activities during his time, without advising him, or doing so at the last minute. These are activities which the Applicant could take the child, but the Respondent refuses to let him do so. Instead, she takes the approach that she will take him.

37The Respondent also encourages the child to make plans with friends, which would occur at her place, during the Applicant’s parenting time. There is a focus in the communication from the Respondent on the child prioritizing his friends and other activities as opposed to his time with the Applicant and his family.

38In some instances, the changes and plans have interfered with the Applicant’s regular parenting time schedule and resulted in him not seeing the child for an extended period of time.

39Furthermore, it is advanced that the child no longer has the ability to contact the Applicant or his family while he is in the Respondent’s care, nor can the Applicant contact him directly.

4) The Respondent makes Unilateral Decisions about the Child without Informing the Applicant

40The 2015 Order provides the Applicant and Respondent with joint custody (now decision-making responsibility) of the child. The Respondent has primary day to day care and control of the child. The Respondent is to consult with the Applicant, as circumstances allow, on all major decisions relating to the child. If the parties are unable to agree on the decision, then the Respondent has the final say.

41The Applicant’s concerns seem to be more in relation to extracurricular activities and some travel occurring without informing the Applicant, other than major decisions such has health and/or education.

42As an example, conflict has arisen relating to who would be taking the child to an out-of-town tournament. There are allegations of unilateral decisions being made by the Respondent and her reliance on having “primary day to day care and control” to make those decisions without advising the Respondent and/or simply telling him that it is her decision, it has been made, and that is how it will be.

5) The Respondent Prevents the Applicant from Speaking with Third Parties about the Child

43The Applicant contends that the Respondent has adopted the position that he is to direct all communication regarding the child’s activities to her and not the team manager and/or organizer.

44Furthermore, the Respondent has made it clear that he is not to contact medical providers directly but ask her for the information. The Applicant offered specific examples relating to contact with the child’s dermatologist and orthodontist.

45It is also noted, that when conflict has arisen, the texts that follow from the Respondent to the Applicant are demeaning, insulting and hostile.

6) The Views and Preferences of the Child

46The Applicant states that the child has advised him that he would like to spend more time with him.

47At the time the Final Orders were made, the child was four years old – he is now almost 13 years of age. He is now able to provide his views and preferences.

48He also feels that the Respondent has been placing the child in the middle of adult conflict.

The Respondent

49The Respondent indicates that even though the Applicant’s employer and place of employment has changed, his pattern of employment has not changed, as he continues to work two weeks on/two weeks off, his work includes long shifts, and his communication is limited/unavailable.

50The Final Orders considered this work schedule and provided for a change should the Applicant become employed in Thunder Bay.

51The Respondent’s answer to the allegations of conflict, is that it is no more than routine parenting disagreements and dissatisfaction with an existing order on the part of the Applicant. This is an attempt to relitigate the issues of parenting time, in an effort to minimize child support.

52The Respondent denies any allegations that she has attempted to frustrate and/or interfere in any way in the Applicant’s relationship with the child.

53It is her position that the Applicant has created conflict through his own conduct and is now attempting to rely on the self-created conflict as evidence of a material change.

54The child has continued to attend parenting time in compliance with the Final Orders.

55In her view, the Applicant is attempting to accentuate normal, child-focused flexibility for sports, social events, occasional routine appointments, as her withholding the child. These are normal life logistics in juggling the schedule of an active and social child.

56She has always been the individual to organize, plan and schedule all activities, events and/or appointments. In the past, the Applicant has never been involved in any way. She has never prevented him from contacting anyone in connection with the child, he has just never done so. She has always been the point of contact with third parties. He left it up to her to appropriately manage communications in accordance with her role as primary caregiver.

57The Respondent has primary care and control of the child, she also has final decision-making authority, should the parties disagree. She has always made these decisions in the best interests of the child. The Applicant has never disagreed or challenged her decisions. In fact, the child has been thriving and excelling academically, socially, and in his extracurricular activities.

58The Respondent further denies that the child has expressed a desire to spend more time with the Applicant. It is purely a desire of the Applicant, and he is pressuring the child to spend more time with him. He is the one exposing the child to adult conflict with his continuous pressure and questioning of the child on parenting time schedule change.

59The Respondent states that he has taken isolated events and is attempting to amplify issues by stating that it has become a pattern.

60It is her position that any issues raised by the Applicant do not result in material change, rather it is an issue, that should he truly feel she has breached a court order, he should seek to enforce the existing Final Orders.

The Law: Rule 16 of the Family Law Rules, Summary Judgment, and Material Change in Circumstance

Rule 16

61Summary judgment motions are governed by r. 16 of the Family Law Rules, O. Reg. 114/99.

62The relevant provisions provide as follows:

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

(7) If the only genuine issue is the amount to which a party is entitled, the court shall order a trial to decide the amount.

(8) If the only genuine issue is a question of law, the court shall decide the issue and make a final order accordingly.

(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1 (7.2),

(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise);

(b) give directions; and

(c) impose conditions (for example, require a party to pay money into court as security, or limit a party’s pretrial disclosure).

Test for summary judgment

63The burden of proof is on the party moving for summary judgment. Pursuant to subrule 16 (4), the party moving for summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

64Pursuant to subrule 16 (4.1) the responding party to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before her or him all the evidence that they would be able to adduce at trial: see Children’s Aid Society of Toronto v. K.T., 2000 CanLII 20578 (ON CJ), O.J. No. 4736 (Ont. C.J.); Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200.

65Although subrule 16 (4.1) sets out the obligation of the Respondent to provide “in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial” this does not shift the ultimate burden of proof. Even if the respondent’s evidence does not establish a genuine issue for trial, the court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial: see Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, at para. 80(2).

66Subrule 16 (6) provides that if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

67Subrule 16 (6.1) provides that in determining if there is no genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be only exercised at trial:

1. Weighing the evidence

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

68Pursuant to subrule 16 (6.2) the court may, for the purpose of exercising any of the powers set out in subrule 16 (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

69In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada set out a two-step process for determining whether summary judgment should be granted.

70As noted in Hyrniak, the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in subrule 16 (6.1). If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required: Hyrniak, at para. 66.

71There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak, at para. 49.

72As the Supreme Court stated, at para. 50 of Hryniak, “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute”: see also Kawartha, at para. 63.

73The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial: Kawartha, at para. 80(3).

74The jurisprudence reflects an approach to the genuine issue “for trial” or “requiring trial” analysis that incorporates these considerations. The test of “no genuine issue for trial” has been referred to in a number of ways. It has been equated with “no chance of success” or that is “plain and obvious that the action cannot succeed”. The test has also been enunciated as being when the “outcome is foregone conclusion” or where there is “no realistic possibility of an outcome other than that sought by the applicant”: Kawartha, at para. 72, citing F. v. Simcoe Muskoka Child, Youth & Family Services, 2017 ONSC 5402, at paras. 21-23.

75The legal test is not whether the parent will have an uphill struggle achieving success at trial, but whether or not there is a genuine issue requiring a trial: Catholic Children’s Aid Society of Hamilton v. I.B. et al., 2020 ONSC 5498, at para. 156, citing Children’s Aid Society of Toronto v. S.A., 2013 ONCJ 367, at para. 54.

76A summary judgment motion can also be an opportunity to make findings of fact not in dispute, narrow the issues to be heard at trial and give directions to assist in organizing the trial pursuant to subrule 16 (9) of the rules: see Children’s Aid Society of Toronto v. S.A., at para. 81.

Motion to Change and Material Change in Circumstances

77There is no dispute that a party seeking a variation must establish that there has been a material change in the circumstances. Importantly, establishing a material change is a prerequisite to examine an application's merits to vary an existing parenting order. Appellate authorities have made it clear that “absent such a finding, the variation inquiry can go no further”: see Brown v. Lloyd, 2015 ONCA 46, at para. 13, referencing Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.

78Considering that the Applicant has brought a motion to change alleging material changes in circumstance, it is important to review the test for a material change in circumstance.

79Pierce J. in Chalifoux v. Atkinson, 2024 ONSC 4786, at para. 13, citing Pazaratz J. in F.K. v. A.K., 2020 ONSC 3726, at paras. 48-52, noted the following:

13The test to vary a final order is described in F.K. as follows:

48To determine a request to change custody, access or parenting order, the court must embark on a two-stage inquiry. Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (SCC).

49The first step: there must be a material change in circumstances since the last order was made.

a. 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.

b. The change must materially affect the child.

c. It must be a change which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. The change must be substantial, continuing and "if known at the time, would likely have resulted in a different order." [citation omitted]

d. The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order.

e. If there is no material change in circumstances, the inquiry ends. The court would be without jurisdiction to vary the order. [citation omitted]

f. 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.

50The second step:

a. If a material change in circumstances has been established the court then embarks on a fresh inquiry into the best interests of the child.

b. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. [Citations omitted.]

c. 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. [Citations omitted.]

d. The child should have maximum contact with both parents if it is consistent with the child's best interests. [Citations omitted.]

e. 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. [Citation omitted.]

See also Mestanovski v. Mestanovski, 2022 ONSC 6919, at para. 31.

Analysis

There Is a Genuine Issue For Trial

80It is the Applicant’s position that prior to 2025, the Final Orders were not being followed to the letter and that he regularly had the child in his care for additional time.

81It was not until January 2025 that the Respondent started to not follow the Final Orders, offering bare minimal parenting time, as opposed to what had been the existing generous and flexible arrangement.

82It is the Applicant’s position that the conflict arose when he refused to pay for half the costs of $1,200 for the child’s bicycle which the Respondent had purchased without first discussing it with him.

83On the other hand, it is the Respondent’s position that the Motion to Change was brought in retaliation to her seeking to enforce the child support arrears through the FRO.

84Irrespective of what may be the cause of the dispute between the parties, it is clear in reviewing the evidence offered by the parties, that communication has been difficult. Conflict has arisen on a number of issues relating to the child.

85The Respondent advanced that the evidence offered by the Applicant refers to a time frame that post-dates his Motion to Change. It is argued that the material change needs to have occurred prior to the Motion to Change and that the Court should not consider the evidence relating to issues that have arisen after the Motion to Change was brought.

86In this regard, the Applicant alleges multiple changes, several of which revolve around the difficulty in communication, unilateral decision-making on the part of the Respondent, and interference in the Applicant’s relationship and parenting time with the child.

87Evidence regarding the ongoing conduct of the parties is important. It assists in establishing that these were not isolated events, but that they are of a continuing nature. The fact that they are continuing while the parties are involved in litigation is also to be considered.

88Having reviewed all of the evidence submitted by both parties, I find that there is a genuine issue for trial. I have also found that there has been a material change in circumstances. I will address this finding in detail below.

89I have arrived at this finding by considering the evidence in its entirety. For example, I agree with the Respondent that the Applicant’s change of employment may not amount to a material change in circumstance and a triable issue for trial. The fact that he is now closer to home would not have persuaded me, in the face of the Final Orders, that this issue required a trial.

90However, there are several other factors raised by the Applicant, including the fact that the child is now almost thirteen years of age. His views and preferences can now be ascertained.

91The Respondent relied heavily on the case of Mestanovski. This matter is distinguishable, as it was clear that there was a lack of evidence tendered by the responding party. This was specifically addressed by Hassan J., resulting in a finding that the responding party had failed to provide sufficient evidence that there was a genuine issue for trial, either relating to the circumstances of the child or her own mental health.

92This is not case before me. The Applicant has provided an extensive record outlining facts and evidence on which he is relying to establish a material change in circumstances and a genuine issue for a trial.

93I find that the most significant issue in this case is the age of the child. He was four years of age when the 2018 Order was made, that was eight years ago. The child is soon to be thirteen years of age.

94I recognize that an increase in age and maturity does not automatically constitute a material change, but it can be a major factor: see Couturier-Bertrand v. Clarmo, 2022 ONSC 1589, at para. 25. In this case, the Court found that the passage of five years in the lives of the children constituted a material change in circumstances. The Court proceeded on varying the order on a temporary basis only, determining that the views of the children should be ascertained. An order was also made requesting that the OCL become involved to ascertain the views of the children.

95As is the case here, the aging and maturity of the child, results in a material change in circumstances. Other factors as noted below also exist, compounding the material change.

96There is no question that the child has been doing well in school and seems to be excelling academically. He is also active and involved in many extracurricular activities.

97Conflict has arisen between the parties surrounding these activities. For example, who will take the child to the activity whether in town or out of town and communication with organizers.

98I have also noted a rising conflict regarding the child’s involvement with his peers. Both parties have addressed this issue in their materials. The Respondent’s materials comment on the involvement, or lack of involvement of the Applicant in the child’s social life. There were a multitude of texts tendered as evidence relating to conversations about sleepovers, spending time with friends, and plans being made when the child is scheduled to have parenting time with the Applicant.

99These facts all point to changes that result from the aging and maturing of the child. Hence the circumstances of the child have changed. It also seems that these changes have resulted in additional conflict between the parties.

100I find that the circumstances that have resulted from the aging and maturing of the child, including the increase/additional conflict and views/preferences of the child go beyond what could have reasonably been contemplated at the time the Final Orders were made.

101The Respondent has the burden of showing that there is no genuine issue requiring a trial.

102The evidence offered by the Applicant are not mere allegations or denials. He has put forward specific facts showing that there is a genuine issue requiring a trial.

103The genuine issue for trial is in respect to the second step of the material change analysis, whether it would be in the child’s best interest that the Final Orders be varied.

104That issue cannot be determined on the record before the Court. The parties have filed competing affidavits. There are credibility issues that cannot be dealt with on the written record and will need to be addressed at a trial following viva voce evidence.

105It would be impossible for me to determine on the present record whether it would be in the best interest of the child for the parenting time to be varied. That issue requires a trial.

106There are also competing allegations on the child’s views and preferences. The child is old enough to convey his views and preferences. This information is important for the Court to consider in its analysis of what is the best interest of the child.

107I will address the appointment of OCL in details below.

108In light of the foregoing, I am satisfied by the evidence tendered at this motion that there is a genuine issue requiring a trial.

109Consequently, the Respondent’s Summary Judgement Motion must fail.

Finding of Material Change in Circumstances

110After hearing submissions from both parties at the Summary Judgment Motion hearing, I asked for the parties’ submissions on my jurisdiction (or ability) to make a decision on the issue of whether there has been a material change in circumstances.

111This arose as a result of the Applicant’s counsel’s request that I determine that issue. It was advanced that it was open to the Court, on the record before it, to make that determination.

112When I asked the Respondent to provide her submissions on this issue, she indicated that she was not prepared to do so, and that she did have counsel on a limited retainer and wished to obtain her/his legal advice on this issue. To ensure fairness in the process, I requested that this issue be addressed by way of written submissions.

113The Applicant submits that should the Court be satisfied based on the evidence heard during the Summary Judgement Motion that the Applicant has met the legal threshold for material change in circumstances, the Court may make such a finding in absence of a formal motion. The Applicant relies on rr. 2(2), 2(3), 16(6.1) of the Family Law Rules, and r. 11(2) of the Courts of Justice Act, R.S.O. 1990, c. C. 43.

114The Respondent submitted that the Court should not assume jurisdiction to make a positive determination that there has been a material change in circumstances in the absence of a motion by the Applicant seeking that relief. It is advanced that the Applicant provided no notice that it would be seeking such a relief. In fact, the argument advanced by the Applicant in his materials was that the issue of a material change was a triable issue requiring trial.

115It is advanced that what the Applicant is now seeking is akin to a “boomerang” motion, and that the specific procedural safeguards outlined in the case law, should be triggered and engaged to ensure procedural fairness: see Graham v. Toronto (City), 2022 ONCA 149, Drummond v. Cadillac Fairview Corporation Limited, 2019 ONCA 447, Meridian Credit Union Limited v. Baig, 2016 ONCA 150, at para. 17, and Saxberg v. Seargeant Picard Incorporated, 2024 ONCA 931, at para. 24.

116The jurisprudence is clear that a motion judge may grant a boomerang order in the absence of a cross-motion provided that it is procedurally fair.

117The Respondent further submitted that if during the course of preparing the reasons disposing of the motion the presiding judge forms the view that granting a reverse summary judgment might be appropriate in the circumstances, the judge should inform the parties and afford them an opportunity to make further submissions.

118I find that the Applicant is not advancing a “boomerang” motion. He is requesting that I make a finding as authorized under the scheme of r. 16 and in the spirit of the Family Law Rules as provided under rr. 2(2) and 2(3).

119Rule 2(2) provides that the primary objective of the rules is to deal with cases justly. Rule 2(3) sets out that dealing with cases justly includes ensuring fair procedure, saving expense and time, dealing with a case in a manner appropriate to its importance and complexity, and giving the appropriate court resources to the case.

120I considered whether I should afford the parties an opportunity to provide further submissions on this issue as suggested by the Respondent. However, I do not see the necessity. At this stage, any determination on this issue, is to be based on the record before me.

121The entire arguments already advanced and submitted to the Court revolved around the issue of whether there has been a material change in circumstances. The Respondent has already provided comprehensive submissions on her position that there has been no material change in circumstances, that is why she advanced a Summary Judgment Motion. It is her position that there is no triable issue as there is no material change in circumstance. And the Respondent has equally provided comprehensive submissions on the record.

122Furthermore, this is not a matter in which it would be appropriate to request oral evidence under r. 16 (6.2). It is not required for the purpose of determining this issue. The matter does not conclude with a determination that there is a material change in circumstances, as there remains a triable issue on the best interests of the child.

123Having decided the initial threshold of material change in circumstances allows the parties to move forward to the second stage, to consider the best interests of the child and whether to vary the Final Orders.

124When a party brings a summary judgement motion, there is always a possibility that the court will make determinations as provided under the rules.

125Based on the evidence and for the reasons noted above, I have found that there has been a material change in the circumstances of the child. Eight years have passed since the Final Orders were made – the child has aged and matured. Conflict has arisen on dealing with these changes involving the child.

126As previously noted, the main issue is whether it is in the best interest of the child that the parenting time be varied. In the circumstances of this matter, and in considering all the evidence as a whole, including the child’s age and increased conflict between the parties, I find that there has been a resulting material change in circumstances.

Involvement of the OCL

127The Applicant seeks an order for the involvement of the OCL. The child is almost thirteen years of age, he is old enough that his views and preferences can and should be considered in determining what is in his best interests.

128It is the Respondent’s position that the request for the involvement of the OCL is a fishing expedition aimed at generating evidence that does not exist. It is advanced that the child is thriving academically, socially, and emotionally. There is no material change in circumstance. As a result, there is no reason for the involvement of the OCL.

129I have found that there is a material change in circumstance.

130Consequently, the matter will now proceed to the next stage, that is to determine whether the parenting time schedule should be varied and what is in the best interest of the child.

131As noted, the child is almost thirteen years of age. He is old enough to advise of his views and preferences. There is already competing evidence before the Court from the parties as to what the child has expressed to them. The only way the Court can be informed of his views is through the OCL, as an independent and impartial third party.

132The involvement of the OCL is not being ordered to resolve a routine access dispute, as framed by the Respondent. This is a high conflict matter. The issue to be determined by the Court is not trivial in nature. There are long standing Final Orders in place. According to the Applicant, until recently, he has normally had more parenting time with the child than provided for in the Final Orders. This is disputed by the Respondent.

133These inconsistencies cannot be resolved on the competing motion records. However, if the Respondent’s evidence (that there was no more parenting time than provided for in the Final Orders) is accepted at trial, the Applicant is requesting a substantive change in his parenting time from two extended weekends per month to a two week on/two week off rotation.

134When considering the best interest of the child, one of the factors to consider are the views and preferences of the child, if they can be ascertained. It will be extremely important in this matter that the child’s independent views be conveyed to the Court without any pressure and/or influence from either of the parties.

135For these reasons, I am making an order pursuant to s. 112 of the Courts of Justice Act, for the involvement of the OCL.

Child Support Arrears

136This claim is being advanced by the Respondent. It is stated that in absence of any variation by this Court, the existing child support and section 7 arrears remain enforceable. The Respondent states that all she is seeking is a quantification of those arrears for the purpose of enforcement with the FRO.

137The Applicant made a payment towards the support arrears in the amount of $23,133.80 in July 2025. The parties do not agree on what is owed.

138The Applicant’s position is that the issue of child support arrears is complex and will require a trial.

139The Applicant has provided two charts summarizing his parenting time with the child, based on hours and on days. This is disputed by the Respondent.

140The main issue as it relates to the child support arrears is related to the Applicant’s claim that the parenting time schedule prior to 2025 was shared within the meaning of s. 9 of the Federal Child Support Guidelines, SOR/97-175, which would result in an offset.

141This issue is not as simple as setting arrears based on past income. This is a matter that will need to be addressed at trial on a full record.

Leave for the Applicant to Bring Further Motion to Change

142The Respondent also sought an order requiring the Applicant to seek leave prior to bringing any further Motion to Change.

143Given the outcome of the Summary Judgement Motion, there is no need to address this issue. I assume that this was a relief sought should the Respondent have been successful with the Summary Judgement Motion. However, for the sake of completeness, I will simply indicate that this is not a relief I am prepared to impose on the Applicant.

Conclusion

144Based on the above reasons, I have found that there is a material change in circumstances.

145There is a genuine issue for trial as to whether it is in the best interest of the child that the parenting time schedule be varied.

146The issue of child support arrears will also require a trial.

147Consequently, the Respondent’s Summary Judgment Motion is dismissed.

148An Order is made for the involvement of the OCL to ascertain the views and preferences of the child.

149Counsel for the Applicant had requested that I allow the parties to proceed directly to a trial, without the necessity of a settlement conference. I am not prepared to do so. The parties are to return before me for a settlement conference once the OCL has become involved and there is information available on the views and preferences of the child. This can be done by contacting the SCJ Trial Coordinator to schedule a settlement conference.

Costs

150If the parties cannot agree on costs, the Applicant shall serve and file costs submissions within 10 days of the release of these Reasons. The Respondent’s submissions shall be served and filed within 10 days of the receipt of the Applicant’s submissions. Any reply submissions shall be served and filed within 5 days of receipt of the responding submissions. All costs submissions shall not exceed three pages, not including any offers to settle or bills of costs.

151Submissions received beyond these deadlines will not be considered. Costs will be deemed settled.

The Hon. Madam Justice C. M. Brochu

Footnotes

1. 1Non-specific identifiers will be used to protect the privacy of the parties and the child.