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Custody/Access

Access

General Principles

Abstaining orders

Courts have authority to make abstaining orders as incidents of custody and access. For instance to abstain from using alcohol while a child is in the care of the parent: Gibson v. Battison, 2012 CarswellOnt 6253; Gaudet v. Dietz, 2010 CarswellOnt 8751; to only have one doctor or dentist for the children: Smithman v. Smithman, 2005 CarswellBC 1084

Delegation:

The court should not delegate what access is to be provided to a third party. Ontario (Official Guardian) v. Strobridge (1994) 4 RFL (4th) 169 CA.

In M.(C.A.) v. M.(D.), 2003 CanLII 18880 (ON CA),  the court emphatically stated that the court cannot delegate to a third party its power to determine access.  At paras. 20-24 of M.(C.A.), Rosenberg J.A., writing for the court, gives four reasons why delegation is improper.  First, it is unclear what the psychiatric report would have to demonstrate in order for the appellant to have access to the children.  Second, the appellant’s mental health is not the only consideration as to whether she should have access.  If access is in the children’s best interests, should it be denied absent the report?  And if access is not in their best interests, should a report entitle the appellant to have access?  Third, there is no statutory authority to delegate decision-making as to access to a third party.  Fourth, such a delegation improperly fetters the appellant’s access to the court on the question of access.

The Court of Appeal set aside a trial decision giving a parent supervised access if she provides a psychiatric report satisfactory to the other parent. See: D.D. v. H.D., 2015 ONCA 409.

Facilitating Relationship:

Absent concern about such issues as abuse, each parent should be expected to support the children’s relationship with the other parent, and to take steps to ensure that the children have a positive attitude about that relationship. Where there are equally qualified parents, who would best facilitate access is a significant factor in making custody and access decisions. See: Moreira v. Garcia Dominguez, 2012 ONCJ 128 (CanLII), 2012 ONCJ 128 (CanLII).Where there are equally qualified parents, who would best facilitate access is a big factor. Huisman v. Stafaniw (1997) 26 RFL (4th) 406 (Ont. General Div.).

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If one parent does not facilitate, or undermines the child’s relationship with the other parent, it will be a relevant factor in determining their ability to act as a parent (a listed best interests factor under s. 24 (2) of the CLRA. See: Leggatt v Leggatt, 2015 ONSC 4502.

Grandparent Access – Chapman v. Chapman, 15 RFL (5th) 46 (Ont. CA). Grandparents do not have a legal right of access to grandkids. The test is always best interests, and the courts will give considerable weight to the wishes of the custodial parent. The onus is on the grandparents to show it is in the children’s best interests. It is not in the best interests of the children to be caught up in a real conflict, however the court must be vigilant to prevent custodial parents from alleging hypothetical conflicts as a basis for denying contact. Where there is real conflict, a child’s best interests will rarely be served by a custody order. Branconnier2006CarswellBC (SC)- the wishes of the parent must not be interfered with absent some evidence of willful disregard for those interest. Great weight must be given to parental autonomy to determine what is best for their children. Morecroft v. Morecroft (1991) 122 NBR (2d) 271 (NBQB). Good review of law in Barber v. Mangal 2009 ONCJ 631.

Justice Nelson set out a 3 part test in Giansante v. DiChiara [2005] O.J. No. 3184 (SCJ). One: Does a positive GP-grandchild relationship already exist? Two: Does the parent’s decision imperil this relationship? Three: Has the parent acted arbitrarily? Court can still intervene if no pre-existing relationship. T.L. v. J.L.S. [2006] O.J. No. 2176 (OCJ).

Grandparents aren’t on equal footing as parents. Singh v. Batoolall [2009] O.J. No. 1046 (SCJ).

Grandparents awarded custody over father. Biological connection is only one of the factors in determining best interests. Sui v. Law 65 RFL 6th 37 (OCA).

Linkage with child support:

Courts should not link access and child support. McGonegal v. Young 2004CarswellOnt. 5105.

Maximum Contact:

The child should have maximum contact with both parents if it is consistent with the child’s best interests. Gordon v. Goertz [1996] 2 S.C.R. 27. This even applies when the child is reluctant to see a parent. Maximum contact principle also applies under provincial cases, even though not set out in CLRA. Cavannah v. Johne [2008] O.J. No. 5027 (SCJ).

Children are very adaptable, and they can adapt quite readily to alterations that occur in access arrangements: see Kelly and Lamb (2000), and Kelly (2005).  The empirical research discussed by Dr. Kelly in her 2005 study appears to support the intuitive

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conclusion that maximum contact with both father and mother is beneficial to the child, cited in Warcop v. Warcop, 2009 CanLII 6423 (ON S.C.).

As a general rule if access has proceeded for several years, it should not be stopped unless there is a serious threat to the child. Wilkinson-Hughes v. Hughes [2008] O.J. No. 736 (Ont.S.C.).

The best interests of the child have been held to be met by the child having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being. Pastway v. Pastway (1999) 49 RFL (4th) 375 (SCJ).

One case where the court took a liberal interpretation of the maximum contact rule is Vanos v. Vanos, 2012 ONCA 65, where the court found alternate Friday to Monday weekends, Wednesdays overnights and three weeks in the summer to be minimal access and ordered access 35% of the time (even though the actual order permitted access 37.5% of the time).

Religion:

An access parent is entitled to share their ordinary lifestyle, including religion with a child. The other parent cannot interfere with how the other parent spends their time with the child , unless the activity poses a risk to the child, or otherwise is not in the child’s best interests. Young v. Young [1993] 4 SCR 3. At page 120 of Young v. Young , the court held that

The custodial parent does not have the right to determine whether limits should be placed on access. His or her obligation to make basic child-rearing decisions does not mean that an access parent of a different faith should not share his or her religion with a child.

However, it is important to acknowledge that in those rare cases where parents cross the line and engage in conduct which constitutes, in the words of my colleagues at p. 110, "indoctrination, enlistment or harassment", courts have a duty to intervene in the best interests of children.  The evidence strongly suggests that this is just such a case and that is the finding of the trial judge.  In my view, these findings of fact must be respected absent, as here, an error in the applicable principles.  

The best interests of a child usually means that a child’s relationship with the other parent is more important than exclusive conformity with the religious practices of one parent. H. (B.) v. Z. (S.)  2000 CarswellOnt 4641.

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In Rosenberg v. Minister, 2011 ONSC 4758 Canlii, the court permitted a moderately observant Jewish father shared time on the Jewish holidays over the objections of the custodial Orthodox Jewish mother.

Rights of Access Parent

An access parent has the right to visit and be visited by a child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child. S. 20(5) CLRA.

Despite section 20 (5) of the CLRA that provides that an access parent shall have the same right as the custodial parent to make inquiries and to be given information as to the health, education and welfare of a child, the language of the Personal Health Information Protection Act  (sec. 23 (1) and (2)) restricts an “access parent” from accessing medical information and records regarding the child if the “custodial parent” withholds consent.  The only recourse for the access parent is then to apply to the court pursuant to section 20 (7) of the CLRA to obtain a specific order for the release of medical information. Webster v. Suteu, 2015 ONCJ 538. 

An access parent is entitled to share his or her ordinary lifestyle, including religion with a child. A custodial parent has no right to interfere with how a child spends his or her own time with an access parent, unless the activity poses a risk to the child, or is not in the child’s best interests. Young v. Young [1993] 4 S.C.R. 3.

Supervised or No Access:

In order to introduce a child to a parent, supervised access may be appropriate. Tang v. Ryckman 1993CarswellOnt 1686 (GenDiv). Usually not intended to be long-term, unless special circumstances. Merkand, 2005CarswellOnt 712 (CA). Suspicion of risk concerns, without evidence, is not a proper basis for ordering supervised access. Tzaras, 2007 CarswellOnt 8327 (Sup.Ct.). Supervised access is beneficial for children who require gradual reintroduction to a parent, or whose safety requires it until such time as the parent is sufficiently rehabilitated and a child is no longer in danger of physical or emotional harm. Najjardizaji v. Mehrjerdi [2004] O.J. No. 5472 (OCJ).

Miller v. McMaster, 2005 CarswellNS 420 (N.S. S.C.): "supervised access is not a long-term solution to access problems which usually arise in high conflict custody and access cases where distrust and negative parental allegations abound. Supervised access is appropriate in specific situations, some of which include the following:

a) Where the child requires protection from physical, sexual or emotional abuse;

b) Where the child is being introduced or reintroduced into the life of a parent after a significant absence;

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c) Where there are substance abuse issues; or

d) Where there are clinical issues involving the access parent.

Supervision may be an intermediate step in certain situations such as:

a.      Where there are substance abuse issues which need to be addressed.

b.      Where the child requires protection from physical, sexual or emotional abuse.

c.      Where there are clinical issues involving the access parent.

d.      Where the child is being introduced or reintroduced to a parent after a significant absence.

In all situations where supervised access is ordered, the hope and expectation is that the problem(s) which justified supervision will be corrected or eliminated, and that a more natural and less restrictive parent-child relationship will be allowed to evolve. Izyuk v Bilousov, 2015 ONSC 3684.

The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. M.A. v. J.D. [2003] O.J. No. 2946 (OCJ).

A parent does not have an absolute right of access, however, refusing access should only be ordered in extreme circumstances. Worthington v. Worthington 2000CarswellOnt 4889 (Sup.Ct.). Must consider it where all other options have been tried and haven’t worked.

There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent, to know and maintain or form an attachment to a non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. Jafari v. Dadar [1996] 42 RFL (3d) 349 (CA).

A court may restrict access if a parent uses access as an opportunity to denigrate the other parent. J.M. v. M.M. [2000] O.J. No. 142 (SCJ); Frost v. Allen [1995] M.J. No. 111 (Man.QB)- where denigration severe, access denied.

A court may limit or cancel access to minimize risk to a child from a parent’s conduct or lifestyle: W.(B.H.) v. W.(S.M.). [2001] S.J. No. 161 {QB). Long term harassment and harmful behaviours towards the custodial parent causing the parent and child stress has qualified. Stewart v. Bachman [2003] O.J. No. 433 (SCJ); Dixon v. Hinsley [2001] O.J. No. 3707 (OCJ).

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In V. S. J. v. L.J.G., [2004] O.J. No. 2238 (S.C.) at para. 135, Blishen J. provided an useful overview of the factors that have led courts to terminate access:

            1.  Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear. See M.(B.P.) v. M.(B.L.D.E.),   supra; Stewart v. Bachman, [2003] O.J. No. 433 (Sup.Ct.); Studley v. O'Laughlin,         [2000] N.S.J. No. 210 (N.S.S.C.) (Fam.Div.); Dixon v. Hinsley, [2001] O.J. No.          3707.

            2.     History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child's safety and well being. See Jafari v. Dadar, supra; Maxwell v. Maxwell, [1986] N.B.J.No. 769 (N.B.Q.B.); Abdo v. Abdo 1993 CanLII 3124 (NS C.A.), (1993), 126 N.S.R. (2d) 1 (N.S.C.A.); Studley v. O'Laughlin, supra.

            3.     Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent. See Tremblay v. Tremblay 1987 CanLII 147 (AB Q.B.), (1987), 10 R.F.L. (3d) 166; Reeves v. Reeves, [2001] O.J. No. 308 (Sup.Ct).

            4.     Ongoing severe denigration of the other parent. See Frost v. Allen, [1995] M.J. No. 111 (Man.Q.B.); Gorgichuk v. Gorgichuk, supra.

            5.     Lack of relationship or attachment between noncustodial parent and child. See Studley v. O'Laughlin, supra; M.(B.P.) v. M.(B.L.D.E.), supra.

            6.     Neglect or abuse to a child on the access visits. See Maxwell v. Maxwell, supra.

            7.   Older children's wishes and preferences to terminate access. See Gorgichuk v. Gorgichuk, supra; Frost v. Allen, supra; Dixon v. Hinsley, supra; Pavao v. Pavao, [2000] O.J. No. 1010 (Sup.Ct.).

       Blishen J. was also careful to remark at para. 136:

            None of the above cited cases deal with one factor alone. In every case, there are a multitude of factors which must be carefully considered and weighed in determining    whether to terminate access is in the best interests of the child.

 

Blishen J. went on to remark that in her view, supervised access should always be considered as an alternative to a complete termination of the parent/child relationship, remarking at para. 140:

          Clearly, if there has been an attempt at supervised access which has proven unworkable, such as where the child remains hostile to the father during the visits; the child reacts      

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badly after visits; or, where the access parent continually misses visits or is inappropriate during the access then termination must be considered. See Studley v. O'Laughlin, supra; Worthington v. Worthington 2000 CanLII 22469 (ON S.C.), (2000), 13 R.F.L. (5th) 220 (Ont.Sup.Ct.); Lacaille v. Manger 1994 CarswellOnt 2089; Dixon v. Hinsley, supra.

No access ordered where father persistently stalking the mother and breaching bail conditions in Salehi v. Haghighi, [2011] O.J. No. 5692.

No access ordered where history of significant domestic violence and controlling witnessed by child, 4 years had passed without access, mother and child highly anxious about any access, mother’s anxiety would likely undermine child’s sense of security and father showed no insight about his behaviour. Mother’s fear of father’s involvement understandable. Need for children’s safety, stability and security (which risked being compromised by an access order) outweighed the benefit of contact with the father. M.K. v. T.R., [2014] ONCJ 54. The lapse of time without seeing a child is a very important consideration in access decisions. H.P. v. P.L.C., [2013] O.J. No. 3377 (OCJ) and Grube and Grube v. Binks and Grube-Binks, [2003] O.J. No. 1530 (OCJ).

Terms of access – The court ordered as a condition of access that a father with an alcohol problem maintain his sobriety and equip any motor vehicle he drove with the children as passengers with an alcohol breathalyzer ignition interlock system, so the car couldn’t be driven unless he was alcohol-free. Atkinson v. Spirdakis [2006] O.J. No. 1901 (OCJ).

In Cohen v. Cohen, 2012 ONSC 348 (CanLII) , a father was ordered to wear a  SCRAM ankle bracelet and continue his enrolment in the SCRAM provided by the Recovery Science Corporation until further order.

Toddlers and Infants – Line of cases finding overnights shouldn’t be regarded as exceptional, citing social science that infants and toddlers can readily adapt to different household environments provided that feeding and sleeping routines in each household are similar to ensure stability. Marsden v. Murphy, 2007 ABQB 294; Hann v. Elms, 2011 NLTD (F) 45; Ryan v. Scott, 2011 ONSC 3277. A critical factor is whether the non-custodial parent accepts custodial parent’s advice regarding the child’s routines and schedules. Lygouriatis v. Gohm, 2006 SKQB 448.

Different considerations apply where a substantial block of time is sought. One month access to 3 yr. old found inappropriate in Ursic v. Ursic, [2006] O.J. No. 2178 (CA). In Richardson v. Biggs, 2012 SKQB 162, court held weekly sharing arrangement inappropriate for a three-year old.

Court not willing to take judicial notice of writing of Lamb and Kelly that overnight access beneficial for infants, required expert evidence. Perchaluk v. Perchaluk, 2012 ONCJ 525.

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There remains considerable controversy in the social science on this issue.

Custody:

Alienation – A(A.) v. A.(S.N.) 2007CarswellBC 1591( CA).- must look at child’s long-term interests; even if child upset by move, best not to be with the alienator.“For most children, fundamental to their identity is an ability to love and accept love from each available parent.” R. Getliffe-Grant 2006 CarswellBC 3233 (BCSC). Cox v. Stephen (2003) 47 RFL 5th 1 (CA.) - Court upholds joint custody to prevent alienation.

Failure to provide access can be “emotional abuse” and subject to a protection application. Orszak v. Orszak (2000) 8 RFL (5th) 350 (Ont. SCJ).

Donald v. Leyton, 2008 CarswellOnt 1967 (Ont. S.C.J.): Part of growing trend to transfer custody if alienation, child 2.5 years old. Also done in Johnson v. Ross-Johnson 2009 CarswellNS 398.

Joint custody order with shared parenting made where alienation. It was found necessary to preserve father’s parenting rights. Trepanier v. Cadieux-Trepanier [2008] 49 RFL 6th 399 (SCJ).

S.G.B. v. S.J.L., 2009 CanLII 24230 (ON S.C.); a determination of what is in a child’s best interests is specific to the needs and circumstances of that child.  It would be wrong to decide how best to address the problem on the basis of general evidence as to what works in cases of parental alienation. 

Justice John Harper wrote about the dangers of cases getting sidetracked by allegations of parental alienation in McAlister v. Jenkins [2008] O.J. No. 2833 (SCJ-Family).

172     In order for me to consider such a drastic step, as was in the recommendation of Dr. Warshak in the J.K.L. case, I need very strong expert evidence about the impact on these children given their present life circumstances. I find that the type of solution espoused by Dr. Blake does not address the impact of these children being taken away from many family members who are extremely important to these children and very much attached to them.

175     Dr. Blake represented to me that it was generally accepted by clinical professionals that, in severe cases of alienation, the preferred solution is to sever the ties with the promulgator of the alienation and provide re-unification therapy for the alienated child. That fact cannot be supported. I give no weight to the opinions of Dr. Blake.

Cases where sent to Warshak workshop are: J.K.L. v. N.C.S. [2008] O.J. No. 2115 (SCJ); A.G.L. v. K.B.D. [2009] O.J. No. 180 (Ont. SCJ); Filaber v. Filaber [2008] O.J. No.4449 (SCJ).

In Fielding v. Fielding , 2013 ONSC 5102, Mackinnon J. listed 17 alienating strategies which she found could be used as a checklist of parental misconduct which may impair a child’s relationship with the other parent.  She identified the following behaviours:

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•         badmouthing;•         limiting contact;•         interfering with communication;•         limiting mention and photographs of the targeted parent;•         withdrawal of love/expressions of anger;•         telling the child that the targeted parent does not love him or her;•         forcing the child to choose;•         creating the impression that the targeted parent is dangerous;•         confiding in the child personal adult and litigation information;•         forcing the child to reject the targeted parent;•         asking the child to spy on the targeted parent;•         asking the child to keep secrets from the targeted parent;•         referring to the targeted parent by their first name;•         referring to a step-parent as mom or dad and encouraging the child to do the same;•         withholding medical, social, and academic information from the targeted parent and keeping his/her name off the records;•         changing the child’s name to remove association with the targeted parent; and•         cultivating dependency on self/undermining the authority of the targeted parent.

But see:

Labels: Quote from A.F. v. J.W. 2011 ONSC 1868 Canlii.I have urged everyone to stop searching for labels and keep focused on the evidence of how each parent and others’ actions impact on the children’s functioning and their needs. The desperate need, in these types of cases is for an early identification by focused assessments of what the clinical needs of the children are in order to, at least give them the tools to withstand the actions of their parents. This was certainly not a feature of this case.

Assessments

They are not to be used as a fishing expedition. The court needs to be careful ordering it as it is not a scientific inquiry, it will often be based on hearsay evidence, and can have a disproportionate affect on the final result. The onus is on the moving party to establish it. Mantesso (1991) 4 R.F.L. 128 (Gen.Div.)

The clinical test has been changed to the evidentiary necessity test set out in Mohan. Brisson v. Brisson, 2003 45 R.F.L. 5th 253 SC. Can order in high conflict case if no clinical issue. In fact, should order it if high conflict and young children. Ursic v. Ursic, 2006 Canlii 18349 CA.

- clear clinical issues no longer required, but court must be satisfied that:a) genuine issue exists between parties for resolution of which assessor’s expertise

would assist court in area where court is ill-equipped to act alone; and

b) benefit of such assistance justifies delay, intrusion and expense of assessment.

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- mere assistance to the court is not enough and would set test so low that assessment would be ordered in every case. If there is a clinical issue, then the necessity becomes more compelling.

All in Haggerty v. Haggerty 2007 ONCJ 279 – Pugsley J.

Glance v. Glance, 2000 CarswellOnt 3169, Ont. S.C.J; Assessments by their very nature are intrusive.  They are also expensive and time consuming.  There must be evidence sufficient to satisfy the court that the reasons for requiring the assessment more than offset any harm that might be incurred by ordering the assessment.  The paramount concern must be the best interests of the child.  Tucker v. Tucker 1998 ABCA 281 (CanLII), (1998), 165 D.L.R. (4th) 103 (Alta. C.A.) No. 17239.  The order for an assessment must have a proper evidentiary basis and it must be in the best interests of the child to order such an assessment.

Root v. Root, 2008CarswellOnt 3995 (SCJ)- mere allegations don’t rise to the level of evidence. There must be sufficient evidence to satisfy the court that the value of an assessment offsets any harm that might be incurred by ordering it. It can’t be used as a fishing expedition. Haggerty v. Haggerty, 2007 CarswellOnt 4151 (OCJ)- followed in Jonkman v. Murphy (2011) 6 R.F.L. (7th) 220.

Porter v. Porter 2009CarswellOnt 2133 (Ont. SCJ)- the court ordered a psychiatric assessment of one of the parties, after finding that the report obtained from his psychiatrist was inadequate.

Sordi v. Sordi, 2009 CarswellOnt 8779 (Ont. S.C.J.)- critique of assessment didn’t meet Mohan criteria or objectives of Goudge report and was inadmissible. This was endorsed on appeal 2011 ONCA 665 Canlii. Also recently rejected in M. v. F., 2015 ONCA 277.

Assessments (use on temporary motions)

Abrego v. Abrego [2006] ONCJ 500 – reliance on an assessment is possible with temporary access order. A distinction can also be drawn between the factual findings of the assessor based on direct observations and the recommendations. This approach was also taken in Medvis v. Peters (2002) 27 RFL (5th) 66.

An assessment was heavily relied upon even with the trial list a few weeks away in Kerr v. Hauer, 2010 ONSC 1995 SCJ (CanLII).

An excellent review of the law is contained in Bos v. Bos, 2012 ONSC 3425 Canlii

[23]       I respectfully agree and adopt the principles in relation to considering an assessment report on a motion as set out in Forte and Kerr.  In my view, the jurisprudence has evolved to the point that although the general principle enunciated in Genovesi continues to be well founded, it is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the

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content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from an existing order or status quo.  In such circumstances, the court may consider some of the evidence contained in an assessment report without having to conclude that there are “exceptional circumstances” as set out in Genovesi.  In fact, “exceptional circumstances” findings were not made in either Forte or Kerr.

[24]        The court has a duty to make orders in a child’s best interests and it would be counter intuitive to this principle to impose on the court an inflexible blanket prohibition against considering any aspect of an assessment report (absent exceptional circumstances) on an interim motion, especially when the only independent objective evidence before the court is from an expert assessor.

[26]           In any situation when a court is faced with a motion for interim relief in relation to custody and access issues and where an assessment has been prepared and where the court is being asked to consider the assessment without making a finding that “exceptional circumstances” exist, it will be a matter for the motions judge to weigh all appropriate factors within the context of that particular case.  Without in any way being exhaustive, these factors may include:

a)      How significant is the change being proposed as compared to the interim de jure or de facto status quo?

b)      What other evidence is before the court to support the change requested?

c)    Is the court being asked to consider the entire report and recommendations, or is it necessary for the purpose of the motion only to consider some aspects of the report, including statements made by the children, observations made by the assessor or any analysis contained in the report which may be of assistance to the motions judge?

d)      Are the portions of the recommendations which are sought to be relied on contentious and, if so, has either party requested an opportunity to cross-examine the assessor?

[27]           It must be cautioned that the existence of an assessment report should not make it “open season” for parties to automatically bring motions attempting to implement some aspects of the report or to tweak or otherwise change existing interim orders or an existing status quo.  Clearly, the facts of each case will be critical and will guide the exercise of the court’s discretion.

[28]      In the present case, as previously mentioned, the existing order specifically permitted a motion to be brought after the assessment was prepared, subject to the onus on the moving party to satisfy the court that the assessment report could be considered prior to trial.  Mr. Bos has met this onus.

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More restrictive approach: Assessments will only be in rare, exceptional cases where an assessor's recommendations should be acted upon immediately before there is a full and thorough investigation provided by a trial. See Verma v. Chander, 66 R.F.L. (6th) 226 (Ont. C.J.) and Winn v. Winn, 60 R.F.L. (6th) 203 (Ont. S.C.J.).

Children’s Lawyer’s Report –A Children’s Lawyer report differs from a full CLRA s. 30 expert assessment. An OCL report is, in its nature, a fact-finding report. The recommendations that result are a starting point; not the last word. See: Ganie v Ganie, 2015 ONSC 6330. 

Best Interests – Basic principles

1. The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. Gordon v. Goertz, [1996] 2 S.C.R. 27.

2. No one factor in the statutory definition of a child’s best interests is given statutory preeminence. Wilson v. Wilson, 2015 ONSC 479.

3. A young child with attachments to both parents needs sufficient contact with both, without prolonged separations to maintain a meaningful and close relationship with them. Van Den Driessche v. Van Den Driessche, 2011 CarswellMan 255 (Q.B. Family); Wilson v. Wilson, 2015 ONSC 479.

4. In resolving custody disputes, emphasis must be placed on the critical importance of bonding, attachment and stability in the lives of young children. Barnes v. Parks, 2001 Canlii 241146 (Ont. C.A.)

5. The court should consider the level of hostility and the extent to which that stability may undermine the child’s stability. Wilson v. Wilson, 2015 ONSC 479.

6. The court should consider how the person seeking access has used contact for a purpose collateral to the child’s best interests. Lusher v. Lusher (1988) 13 R.F.L. (3d) 201 (Ont. Prov. Ct – Family).

Best Interests – Useful questions to ask – C. (J.R.) v. C. (S.J.), 2010 CarswellNS 126 (N.S. S.C.):

• What does the parent know about child development and is there evidence indicating what is suggested to be known has been or will be put into practice?

• Is there a good temperamental match between the child and the parent?

• Can the parent set boundaries for the child and does the child accept those restrictions without the need for the parent to resort to harsh discipline?

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• Does the child respond to the parent's attempt to comfort or guide the child when the child is unhappy, hurt, lonely, anxious, or afraid?

• Is the parent empathetic toward the child? Does the parent enjoy and understand the child as an individual or is the parent primarily seeking gratification for his or her own personal needs?

• Can the parent examine the proposed parenting plan through the child's eyes and reflect what aspects of that plan may cause problems for, or be resisted by, the child?

• Has the parent made changes in his or her life or behavior to meet the child's needs, or is he or she prepared to do so for the welfare of the child?

Best interests – Frequent moves/transience

Frequent moves by one parent over a short period may constitute a lack of stability and structure contrary to the best interests of the child: Madill v. Madill, 2014 ONSC 7227 (CanLII) (Interim Order); Lambert v Limoges, 2015 ONSC 6487.

Best interests – risk of harm

From: Young v. Young, [1993] 4 S.C.R. 3 (S.C.C.):

139  …[The] court must determine, based on a consideration of the evidence as a whole, the existence and the extent of any “risk of harm” to the child.  It requires the court, regardless of whether the evidence meets the civil standard of proof, to consider all the evidence and circumstances to assess the existence and the degree of risk to the child of harm (whether because of alleged sexual abuse or some other alleged reason).  The court’s determination of the existence and degree of risk of harm to the child will fall along a continuum from no risk to a certainty the risk will materialize.  The court, where there is any possibility the risk may materialize, will also have to consider the degree of harm to the child if the risk materializes.  Where this risk of harm falls along this continuum will determine the weight to be given to this factor.  This is then only one factor in determining what is in the best interests of the child.  The court must also go on to consider any other risks of harm (and the degree of those risks) to the child and any benefits (and the degree of those benefits) to the child of the proposed order with the ultimate goal being the determination of what order will be in the child’s best interests going forward.

Cited with approval in Bates v. Bates, 2011 ONSC 3027 (CanLII).

Biological Parents –have preferred status over others Foster v. Allison (2003) 44 R.F.L. 5th 78 (SCJ). Where other things are equal children belong with one or both of their natural parents (see, Seymour v. Seymour,[1994] B.C.J. No. 1970 (BCSC); Hardcastle v. Huculak, [1987] S.J. No. 701 (Sask. C.A.)). In Chera v. Chera, [2008] B.C.J. No. 1807 (B.C.C.A.).

Change of Name –

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The Ontario Court of Justice does not have jurisdiction to make an order changing a child’s name. There is no statutory authority to make an order compelling the Registrar General to change a child’s name under the Vital Statistics Act and this court does not have parens patriae jurisdiction. In all of the cases where this order has been made, the application was commenced in the Superior Court of Justice and the court has made the order changing a child’s name using its parens patriae jurisdiction. See Gallant v. Lewis, 2008 CanLII 36912 (ON SC), Ryan v. Scott, 2011 ONSC 3277 (CanLII). However if a parent has joint custody, they can apply under the Change of Name Act to the Registrar General to Change a child’s name. If the other parent doesn’t consent, the first parent can then move to the court to dispense with the other parent’s consent under s. 5 (4). This might be a factor in order joint custody. See: Benko v. Torok, 2013 ONCJ 331 (CanLII).

Hornan v. Hornan, 2007CarswellMan421 (ManQB). Consider the age of the child, the length of time that the custodial parent has had sole custody, whether there is a continuing close relationship between the child and the non-custodial parent and whether, if there are, the surname used by the siblings. The test is always best interests. Should also consider the motivation of the moving party.

In Ryan v. Scott 2011 ONSC 3277 Canlii, the court followed Gallant v. Lewis 2008 Canlii 36912 ONSC and exercised parens patriae jurisdiction to order Registrar General to change name of the child on the basis that Vital Statistics Act provision that permitted mother to name child was unconstitutional. Note: Gallant states that there is no statutory authority to make this order.

Children’s Lawyer Role – Courts have sanctioned The Office of the Children's Lawyer taking a position different from that expressed by the children where there is evidence that the child's views and preferences were not independent (Boukema v. Boukema, [1997] O.J. No. 2903 (Gen. Div.); Reeves v. Reeves, [2001] O.J. No. 308 (S.C.J.); Children's Aid Society of the Regional Municipality of Waterloo v. B.A., [2005] O.J. No. 2844 (Ont. C.J.); Filaber v. Filaber, [2008] O.J. No. 4449 (S.C.J.)).

Child’s Wishes-

Decaen v. Decaen, 2013 ONCA 218 (CanLII): In assessing the significance of a child’s wishes, the following are relevant: (i) whether both parents are able to provide adequate care; (ii) how clear and unambivalent the wishes are; (iii) how informed the expression is; (iv) the age of the child; (v) the maturity level; (vi) the strength of the wish; (vii) the length of time the preference has been expressed for; (viii) practicalities; (ix) the influence of the parent(s) on the expressed wish or preference; (x) the overall context; and (xi) the circumstances of the preferences from the child’s point of view: See Bala, Nicholas; Talwar, Victoria; Harris, Joanna, “The Voice of Children in Canadian Family Law Cases”, (2005), 24 C.F.L.Q. 221.

Lanfrey Apr.4/07- Mossip. – wishes of older child (16) only one factor. However, in Kincl v. Malkova, 2008 ONCA 524 (CanLII), child age 14, not forced to see father, where no contact for three years. The judge should not allow the comments of the child to

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be the sole basis of the judgment while disregarding other evidence of what may actually be in the child’s best interests. Ultimately the weight to be attached to an expression of preference depends on the facts and is a function of age, intelligence, apparent maturity, and the ability of the child to articulate a view. See:.Stefureak v. Chambers, [2004] O.J. No. 4253 (S.C.J.)

Child, age 10, forced to have access despite wish not to, and 3 yr. separation - Darby v. Darby, 2009 CanLII 1135 (ON S.C.)- “the child’s best interests in this case require that C.J. have a relationship with both parents in order to develop into a healthy adult. If he is not given access to his father his fear and anger will fester in a virtual vacuum. Or worse, it will continue to be fuelled and exacerbated by the attitudes of his mother and her allies towards the respondent. C.J. needs to be given the opportunity to know his father for what he really is, apart from what C.J. has heard about him from his mother and others, and, beyond what he remembers from the hostile pre-separation home environment.”

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; Tock [2006] O.J. No. 5324: A.G.L. v. K.B.D. [2009] O.J. No. 160

The ability of the OCL to take a position different from that expressed by the children has been sanctioned where there is evidence that the child’s views and preferences are not independent. A.G.L. v. K.B.B. [2009] O.J. No. 180 (SCJ), Filaber [2008] O.J. No. 4499 (SCJ).

In A.C. v. Manitoba (Director of Child and Family Services the case dealt with the right of a child under 16 years of age to refuse medical treatment in the context of the child protection proceeding. Justice Zisman in Kavaner v. Jancsurak, 2012 ONCJ 543 (CanLII) followed Justice Abella’s comments at paragraphs 87  to 88 and 92 to 93:

                        [87]…In some cases, courts will inevitably be so convinced of a child’s maturity that the principles of welfare and autonomy will collapse together and the child’s wishes will become the controlling factor.  If, after a careful and sophisticated analysis of the young person’s ability to exercise mature, independent judgment, the court is persuaded that the necessary level of maturity exists, it seem to me necessarily to follow that the adolescent’s views ought to be represented….

                        [88] As L’Heureux-Dubé J. said in Young v. Young, 1993 CanLII 34 (SCC), 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, “courts must be directed to create or support the conditions which are most conducive to the flourishing of the child” (p. 65 (emphasis added))…  When applied to adolescents, therefore, the “best interests” standard must be interpreted in a way that reflects and addresses an adolescent’s evolving capacities for autonomous decision making.  It is not only an option for the court to treat the child’s views as an increasingly determinative factor as his or her maturity increases, it is, by definition, in a child’s best interests to respect and promote his or her autonomy to the extent that his or her maturity dictates…

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                      [92] The statutory factors reflect decades of careful study into children’s needs and how the law can best meet them.  We have come, with time, to understand the significance of so many relevant considerations which had been previously hidden behind formulaic solutions like “the tender years doctrine”.  With our evolving understanding has come the recognition that the quality of decision making about a child is enhanced by input from that child.  The extent to which that input affects the “best interests” assessment is as variable as the child’s circumstances, but one thing that can be said with certainty is that the input becomes increasingly determinative as the child matures…

                      [93] Such a robust conception of the “best interests of the child” standard is also consistent with international instruments to which Canada is a signatory…the child’s own input will inform the content of the “best interests” standard, with the weight accorded to these views increasing in relation to the child’s developing maturity…

Counseling – Kaplanis (Ont.CA) – court has no jurisdiction to order parental counseling. (But: see amendments to subrule 17 (8) (b) of the Family Law Rules). However, the court can make a recommendation and it could be a relevant consideration in any future application, in determining child’s best interests. Followed in Imineo v. Price, 2011 CarswellOnt 13259 (OCJ).

However courts have ordered parent to obtain counseling as an incident of custody or access: Kozachok v. Mangaw, 2007 CarswellOnt 1069; Snih v. Snih, 2007 CarswellOnt 3715; Abrego v. Moniz, 2006 CarswellOnt 8378.

Counseling is more likely to be ordered for children: C. (A.S.) v. C. (S.), 2008 CarswellMan 190; Islam v. Rahman, 2009 CarswellOnt 3280. In Sickinger v. Sickinger, 2009 CarswellOnt 3152, affirmed by 2009 CarswellOnt 7552 (CA), the mother was ordered to terminate counseling for the children with a specific counselor.

Day-to-day decisions -     The custodial parent should generally be left with the day-to-day decision-making about the child’s life. This means that courts should be deferential to the decisions of the responsible custodial parent who “in the final analysis, lives the reality, not the speculation, of decisions dealing with the incidents of custody”: MacGyver v. Richards 1995 CanLII 8886 (ON CA), (1995), 22 O.R. (3d) 481 (C.A.), at para. 31. At the same time, since the best interests of the children must always be paramount, where best interests dictate, the court must intervene.

Definition of Custody - Custody has been described as a “bundle of rights and obligations,” referred to as “incidents of custody” in the Act, which includes the right to physical care and control of the child, to determine the child’s residence, to discipline the child, and to make decisions about the child’s education, religion, medical care and general health and activities (Young v. Young (1993),  49 R.F.L. (3d) 117 (S.C.C.);  Chou v. Chou, [2005] O.J. No. 1374 (S.C.J.).

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Disclosure vs. privacy rights – Where the mother’s ability to care for the children due to medical reasons was in issue, the court ordered production of records from her doctor, social worker and psychologist. The court said this overrides the mother’s privacy interests. See: Black 2008 Canlii 5959 (SCJ.). The best interests of a child take precedence to privacy rights. When the mother had mental health issues, regular medical updates were required. Snoddon v. Snoddon [2004] O.J. No. 1987 (OCJ).

Discretion - Custody and access decisions are inherently an exercise in discretion. Case-by-case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. Van de Perre v. Edwards, 19 R.F.L. (5th) 396 (S.C.C.).

Foreign orders (Recognition) – Section 41 of the Children’s Law Reform Act indicates that an Ontario court shall recognize a foreign order unless it is satisfied that the respondent wasn’t given reasonable notice of the proceeding in which the order was made, or was not given a reasonable opportunity to be heard, or the law of the foreign jurisdiction did not require it to have regard for the best interests of the child or that the order was contrary to public policy in Ontario or the foreign court did not have jurisdiction applying the factors in section 22 of the Children’s Law Reform Act.

In Ndegwa v. Ndegwa, 2001 Canlii 28132 (SCJ), the father proceeded ex parte in Kenya to obtain a temporary custody order. The father argued that once the mother had notice of this order, she still didn’t move to set aside the order, so her defence claimed under clauses 41(1)(a) and (b) of the Act should fail. The court found that “waiting until after the order was made and then serving notice of the commencement of proceedings does not meet the requirement of…..reasonable notice of the commencement of the proceeding in which the order was made”. The court also found in paragraph 15 of its decision that: “being heard” entails knowing the case to be met and having the opportunity to address the factual and legal issues in the case.” The court did not recognize or enforce the order from Kenya for these reasons.

Citing Ndegwa, the Ontario Court of Appeal, in British Columbia (Child, Family and Community Service) v. S.J.B., 2006 Canlii 22106 (Ont. C.A.), found, pursuant to clause 41(1)(b) of the Act, that parents in a child protection case did not have a reasonable opportunity to be heard when the Director of Child, Family and Community Service for the Province of British Columbia asked, pursuant to section 41 of the Act, for the Ontario courts to recognize and enforce an order obtained ex parte in British Columbia.

In Brown v. Pulley, 2015 ONCJ 186, the father obtained an ex parte chasing order after the mother took the children to Ontario from North Carolina. The court did not apply section 41, citing the above cases. She was not given notice of the proceedings and did not have a reasonable opportunity to be heard.

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Section 42 of the Children’s Law Reform Act permits a court to supercede a foreign order, if there has been a material change in circumstances since the foreign order was made, and if the court has jurisdiction to hear the case (as defined in subsections 42 (a) and (b)).

Section 43 of the Children’s Law Reform Act permits the court to supercede a foreign order if the child would be at serious risk of harm if kept with or returned to a person entitled to custody, or removed from Ontario. The serious risk of harm test is the same as the grave risk of harm test set out in the Hague Convention. Brown v. Pulley, 2015 ONCJ186; Thomson v. Thomson, (1994) 6 R.F.L. (4th) 290 SCC.

Health Care Consent Act -     Medical decision making is an incident of custody unless there is evidence that the child is a mature minor. Otherwise, the capacity to make decisions with respect to medical decisions does not fall within the scheme of the Health Care Consent Act. See: C.M.G. v. D.W.S., 2015 ONSC 2201, where the court made an order that a child should be vaccinated.  The Health Care Consent Act, 1996, S.O. 1996, c. 2, was not intended to trump the discretion of the court under sections 16 and 17 of the Divorce Act, or section 24   of the Children’s Law Reform Act in issues of custody and access. See: J.K.L. v. N.C.S.,[2008] O.J. No. 2115 (SCJ).

High Conflict – The reasons of Mr. Justice J.C. Murray in the case of Jackson v. Jackson 2008 CanLII 3222 (ON S.C.), [2008], 50 RFL (6th) 149, paragraphs 7 - 25 highlight the toxic effect of parental conflict on children.  Numerous studies demonstrate the significant negative impact parental conflict has on children which continues in both the short and long term and is a major source of harm to children. 

Immigration Cases

Leading Decision: J.H. v. F.A. 2009 ONCA 17- The purpose of non-removal orders under the CLRA is not to frustrate the deportation of persons who have been ordered removed from Canada pursuant to the relevant immigration legislation but to prevent parents from removing children from the jurisdiction in contested family law proceedings: see Wozniak v. Brunton (2004), 1 R.F.L. (6th) 429 ( Ont. S.C.), at para. 23; Varvara v. Constantino, [2005] O.J. No. 861 (Q.L.), at para. 33.  It is not open to applicants scheduled to be removed by federal immigration authorities to use the family courts to stay in Ontario “under the guise of determining [the] best interests of a child”: Augustin v. Canada (M.P.S.E.P) and Leonty (27 February 2008), Toronto 07/FA/014805 ( Ont. S.C.), at para. 9.

In this case, there was no family law dispute with respect to incidents of custody between the parents.   One child’s father had not participated in the proceedings at all.  The other had no desire for custody.  There was no suggestion that any of the parties had any interest in removing children from Ontario.  The relevant paragraphs of the order were aimed not at the parents of the child but at the respondent Ministers pending the outcome of the H&C application.  The CLRA should not be used to frustrate the IRPA.  The IRPA and related legislation is the forum in which to address immigration and related claims.

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   In any event, even if the motions judge’s order was restored, recent jurisprudence from the Federal Court of Appeal, the court charged with the primary responsibility of interpreting the IRPA, indicates that the CLRA order would not affect a s. 50(a) statutory stay of the removal order.  In Idahosa v. The Minister of Public Safety and Emergency Preparedness, 2008 FCA 418, Evans J.A. on behalf of a unanimous court, held at para. 59: [p]aragraph 50(a) does not apply to a provincial court’s order awarding custody to a parent of Canadian-born children for the purpose of delaying or preventing the enforcement of a removal order against the parent, when there is no lis respecting custody that is unrelated to the removal.

Wozniak #1 therefore stands for the principle that existing removal orders are not a bar to assumption of jurisdiction in motions for custody. But it also stands for the statement that there must, in fact, be a genuine family law lis in each case in order for the Court to assume jurisdiction. This must be considered in each case on its facts. J.H. v. F.A. above.

Review of the law in Ffrench v. Williams 2011 ONCJ 406 (CanLII). In Martin v. Royal [2012] O.J. No. 1585 (OCJ), the court found no lis regarding non-removal. The court made a specified access order to terminate upon the mother’s deportation.

A non-removal order will not operate as a stay of deportation against a parent under s.50 of the Immigration Act. Thompson-Blake v. Canada (Public Safety and Emergency Preparedness) 2008 FC 572 (Canlii).

Joint Custody and Parallel Parenting

Starting Point: It should only be considered where both parents have a strong claim for custody. Only then, should the court look at communication and cooperation. If one person’s behaviour is problematic, it shouldn’t be ordered.

Most joint custody decisions are made following a trial of the issues. Cojbasic 2008CarswellOnt 1230(SCJ).

Kaplanis (Ct. of Appeal) 2005 CanLII 1625 (ON C.A.).1. There must be evidence of historical communication between the parents and

appropriate communication between them.2. It can’t be ordered in the hope that it will improve their communication3. Just because both parents are fit does not mean that joint custody should be

ordered4. The fact that one parent professes an inability to communicate does not

preclude an order for joint custody.5. No matter how detailed the custody order there will always be gaps and

unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

6. The younger the child, the more important communication is.

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In Giri v. Wentges, 2009 ONCA 606 (CanLII) which says:

[10]         Second, as this court has repeatedly held, joint custody requires a mutual commitment between parents to cooperate on matters pertaining to the raising of their child, and an ability for the parents to put their own interests behind those of the child. The Ontario Court of Appeal in Kaplanis v. Kaplanis [2005] O.J. No. 275 has made it clear that an interim custody order and how it has worked is a relevant consideration for the trial judge. Ladesic-Hartmann v. Hartmann, 2008 CanLII 25719 (ON S.C.)

Graham v. Bruto, 2008 ONCA 260, the court of appeal stated clearly that the joint custody and parallel parenting option was not in the best interests of the child of that family because the parents disagreed on too many important issues that affected the child’s best interests. Also in Roy v. Roy, 2006 CanLII [2006] O.J. No. 1872

Ladisa v. Ladisa- 2005 O.J. No.275 – (C.A.) the court did not interfere with joint custody order. Despite the intense conflict between the parents, in emergencies and when the parents had an opportunity to consider the real interests of their children, they behaved appropriately. They coexisted at the doctor, at school functions and activities. Those circumstances supported a joint custody.

Ursic v. Ursic 2006 CanLII 18349 (Ont.CA) - Joint custody or parallel parenting was considered necessary to keep the “innocent” parent in the child’s life.

The Court of Appeal has upheld joint custody or parallel parenting in the absence of reasonably effective communication between the parents only where it has been necessary to sustain a child’s contact with a parent who has been subjected to a campaign of alienation. So, for example, such an order was upheld where a mother had laid down a pattern of resisting the father’s access and was found by the trial court to be unable to appreciate the importance of the relationship with their children. See Andrade v. Kennelly, 2007 ONCA 898, 46 R.F.L. (6th) 235, [2007] O.J. No. 5004, 2007 CarswellOnt 8271 (Ont. C.A.).

 Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of one, that parent should not be able to use the conflict as justification to oppose a joint — or shared — parenting order.  To do so allows an obdurate parent to engineer a result in his or her favour.  However, where, as here, the conflict is extreme and there is substantial blame to be leveled against both parents, a joint — or shared — custody approach is not appropriate. Geremia v. Harb 2008Canlii19764 (Ont. SC).

In recent years, there has been more willingness to grant joint custody where such an order is necessary to preserve the balance of power between the parents, especially where one parent has been primarily responsible for the conflictual relationship: see: Garrow v. Woycheshen, 2008 ONCJ 686, Hsiung v. Tsioutsioulas, 2011 ONCJ 517 (CanLII).

Mol v. Mol [1997] O.J. No. 4060 (Ont.S.C.) an unwillingness to share custody should not preclude an order of joint custody if the court considers such unwillingness to be the

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manifestation of temporary personal hostility engendered by the trauma of recent separation”. 

Griffiths v. Griffiths 2005 CarswellOnt 3209 (OCJ).– courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. a standard of perfection is not required, and is obviously not achievable. Warcop v. Warcop, 2009 CanLII 6423 (ON S.C.) The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. 

Growen v. MacKenzie 2008ONCJ 170 (OCJ) – court should look at how parents parented prior to the separation to determine if co-parenting and co-operation is possible, if it believes that the parents can return to this after the stress of litigation is over.

Ciutcu v. Dragan, 2014 ONCJ 602 – Communication is even more critical when the parents have children with special needs.

“In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children- particularly children already exposed to the upset of family breakdown- look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.” See: Izyuk v. Bilousov, 2011 CarswellOnt 12097 (S.C.J.) at para. 504. 

Parallel Parenting:

From: K.H. v. T.K.R., 2013 ONCJ 418 (CanLII):

[45]      Parallel-parenting orders can take the form of “divided parallel parenting”, where each party is given separate, defined areas of parental decision-making, independent of the other; or alternatively, “full parallel parenting”, where both parents are given the right to make major decisions respecting the child in all major areas of parental authority while the child is with them, without the consent of the other parent. See: Hensel v. Hensel 2007 CarswellOnt 7010 (Ont. S.C.J.);Izyuk v. Bilousov, 2011 ONSC 6451 (CanLII), 2011 ONSC 6451 (CanLII).

 [46]      Parallel-parenting orders have been made in high-conflict cases, particularly in cases where:

 a)      One parent is unjustifiably excluding the other from the children’s lives and can’t be trusted

to exercise sole custody responsibly. See: Andrade v. Kennelly  2007 Carswell 8271 Garrow v Woycheshen , 2008 ONCJ 686 (CanLII), 2008 ONCJ 686; Madott v Macorig, [2010] OJ No 4371 (SCJ); Cooke v. Cooke, 2012 NSSC 73 (CanLII), 2012 NSSC 73 (CanLII); Bushell v. Griffiths 2013CarswellNS 240 (N.S.S.C.), and  Izyuk v. Bilousov, supra, (where the court stated that it must still be satisfied that it is dealing with equally competent parents whose lack of cooperation does not affect the best interests of the child (par. 507)). 

b)      Where the parents are incompatible with one another, but are both capable parents and agree on major issues. See: Hajkova v Romany,2011 ONSC 2850 (CanLII), 2011 ONSC 2850 (CanLII), 2011 ONSC 2850 (CanLII), 2011 ONSC 2850; Scervino v Scervino2011 ONSC 4246 (CanLII), 2011 ONSC 4246 (CanLII), 2011 ONSC 4246 (CanLII), 2011 ONSC 4246

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(SCJ). In this line of cases, the conflict between the parents is not so high that it will interfere with responsible decisions being made about the children and the parents appear to be willing to put the best interests of their children first. See: Moyer v. Douglas [2006] OJ No 5124 (Ont. S.C.J.); Ursic v. Ursic2006 CanLII 18349 (ON CA), (2006) 32 R.F.L. (6th) 23 (Ont C.A.).

 [47]      In  Baker-Warren v. Denault, 2009 NSSC 59 (CanLII), 2009 NSSC 59,  the court held that a parallel-parenting regime is usually reserved for those few cases where neither sole custody, nor cooperative joint custody, will meet the best interests of the child.

 [48]      Courts have found that parallel-parenting orders will not meet the best interests of the children where the conflict is too high to make such an order work. See:  Roy v. Roy 2006 CarswellOnt 2898 (C.A.); Mo v. Ma, 2012 NSSC 159 (CanLII), 2012 NSSC 159 (CanLII) and Graham v Bruto, [2007] O.J. No 656 (Ont. S.C.J.) aff’d at 2008 ONCA 260 (CanLII), 2008 ONCA 260 (where the trial judge found that a joint custody and parallel-parenting regime made little sense since it would put the “children in the middle of conflict every few days” and “the parents' inability to cooperate in such cases may result in frequent visits to court which would present a greater opportunity for conflict”). 

 [49]      In V.K. v. T.S., ONSC 4305 (CanLII) , Justice Deborah Chappel conducted a thorough review of the case law and set out in paragraph 96 the following factors to consider when determining whether to make a parallel-parenting order:

 a)      The strength of the parties’ ties to the child, and the general level of involvement of each parent in the child’s parenting and life. In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child’s life on all levels. 

b)      The relative parenting abilities of each parent, and their capacity to make decisions that are in the child’s best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered.

c)      Evidence of alienation by one parent.  If the alienating parent is an otherwise loving, attentive, involved, competent and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party’s role in the child’s life. On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child’s best interests, a sole custody order may be more appropriate.

d)      Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order.

e)      The extent to which each parent is able to place the needs of the child above their own needs and interests.  If one of the parties is unable to focus on the child’s needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child’s day to day needs.

f)        The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting. 

[50]      I would add four more considerations that I believe are relevant to a parallel-parenting analysis.

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 [51]      The first consideration is for the court to evaluate the likelihood of one category of decision-making conflicting with another (the spillover effect) and the ability of the parents to navigate those conflicts. For instance, it might appear on the surface that there is a clear delineation between medical and educational decisions. However, that might not be the case with two parents determined to fight and perpetuate conflict. If a school recommends speech-language therapy or therapeutic counseling to take place at school, high-conflict parents will likely fight over whether these are medical or educational decisions.

 [52]      The second consideration is whether the parents have the ability to navigate scheduling conflicts between activities and appointments. Since they are each acting independently in their own sphere of decision making, what happens when both soccer practice and math tutoring are scheduled for the same time? How likely is one parent to schedule a dentist appointment at the same time as a child’s playoff hockey game?

 [53]      It may be possible to anticipate, define and create priorities for many of the potential conflicts regarding both the delineation of decision-making and the scheduling of activities and appointments, but a court needs to carefully consider whether this is really possible given the dynamics of the parents in the case before it. The court might just be developing a new battleground for the parties with a parallel-parenting order – a battleground that will create more conflict and instability for the children.

 [54]      The third consideration is the geographical distance between the parties. It is one thing to carve off an area of decision-making for the non-residential parent, but the court has to ask whether the residential parent (the parent with whom the children primarily reside) will logistically be able to implement those decisions. Decisions by the non-residential parent are easier to implement if the parties reside close to one another. If the parties live far apart, the residential parent may not be able to take the children to a doctor, tutor, counselor, school or activity (depending on the area of decision-making) chosen by the non- residential parent. If the parents cannot communicate well, the geographic distance between them can create significant conflict and adversely affect the children.

 [55]      The fourth consideration is about family dynamics. The court must evaluate if a parallel-parenting order is more likely to de-escalate or inflame the parents’ conflict.

 [56]      A parallel-parenting order can be a useful tool for settlement. The risks associated with it (as set out above) may be outweighed by the benefits of the parties avoiding further litigation and coming to an agreement that both can accept – an agreement where both parties are fully engaged as parents.[3]  With parents who sincerely want to be involved with their children for their children’s benefit, such an order will likely have the benefit of de-escalating conflict. The children, in such cases, will receive the benefit of two involved parents.

 [57]      However, a sad reality of family law is that there is a certain group of parents who seek such orders for the purpose of asserting control over their former spouse and children. These parents tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations.  For such parents, a parallel-parenting order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.[4]

 [58]      All of these considerations lead this court to the conclusion that courts should be very careful before granting parallel-parenting orders in high-conflict cases. They are rife with potential complications that could have the inadvertent effect of escalating conflict and destabilizing children. There is also the risk that important decisions regarding children will not be made in a timely manner if there is a conflict over who is entitled to make that decision. It is not in the best interests of children to paralyze the decision-making process about them.

 

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[59]      Logic dictates that these risks grow exponentially in a high-conflict case if a party is seeking a “full parallel-parenting model” order. There are many child-related decisions that require a high-level of parental communication. Important medical and academic needs for children need to be coordinated. The treatment of any special needs of children must be coordinated. A proposed parenting model where each parent acts fully independently of the other in making these important decisions (where the parents have little or no ability to effectively communicate about the children) needs to be approached with extreme caution.

Positive Factors in favour of ordering joint custody:

Coordinating schedules, sharing clothes, car seats, jointly dealing with doctors, access proceeding without incident, post-separation conflict less than pre-separation conflict, agreeing on extended access, good payment history, one parent assuming joint debts, agreeing on counseling, using communication book, children thriving

Parties still co-habiting

– In limited circumstances, if it is in the child’s best interests, the court can make a custody order where the parties are still together. Mead v. Aerssen 2009ONCJ 709.

Jurisdiction (Custody)

CASE LAW ON CLAUSE 22 (2) (C) OF THE CLRA

It has been held that “a significant period of time” as defined in clause 22 (2) (c) of the Act has two aspects:

1) A significant length of time and

2) A significant time in the life of the child.

See: Sui v. Tang [1997] O.J. No. 5609 (OCJ); Dhillon v. Benipal [2009] O.J. No. 1311 (SCJ).

The words “permanent basis” and “for a significant period of time” must be read conjunctively. The longer the period of time, the more likely it is that the situation will be considered one of permanency (Sui, par. 53).

A party’s original intention is only one factor to consider in determining permanence and the court must consider other factors. Even if an arrangement was originally intended to be temporary, it may become permanent with the passage of time. Other indicia of permanence include: establishing relationships with other relatives, attending school, obtaining medical treatment, developing relationships with other children of the child’s age, and knowing no other place than the current residence at home (Sui, pars. 50-52). In Sui, the child had lived with the grandparents for 20 months, almost her entire life, at the time of the application. Justice Eleanor Schnall wrote at par. 51:

Even at the time that the mother took the child to China, the practical meaning of ‘temporary’ was unknown; it would depend on the mother’s ability to finish her studies and then to get a job whereby she would be able to support herself and the child. The mother hoped that such a job

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would be in the region, but she could not anticipate that this would be so, in February or March, 1995.

In Vega v. Vega [1994] O.J. No. 1794 (C.J. – Prov. Div.), clause 22 (2) (c) was applied where the child had lived with grandparents in Ecuador for two and one half years, more than half of her life.

In Hsui v. Liu, [1999] O.J. No. 3172 (S.C.J.), the court did not apply clause 22 (2) (c), where the child had lived with grandparents in Taiwan for 13 months prior to the application. The court found that the clear intent was for the child to visit, not move, to that country. In Hsui, the wife reiterated on numerous occasions her desire for the child to be returned to Ontario. The husband and paternal grandmother repeatedly assured the mother that the child would be returned, but never honoured their assurances.

In Dhillon, the child went to live with his maternal grandparents in India when he was 10 months old. The application was started in Ontario 14 months later. At that time, the child had been in India for more than half of his life. Snowie J., found this to be a significant period of time in the child’s life. She wrote at pars. 83-84:

[83]        I also find that the child lived with the maternal grandparents “on a permanent basis”. I have rejected Gurinder’s evidence that the child’s stay in India was intended to be temporary only. His evidence was contradicted by that of the maternal grandparents and Kirandeep, who testified that the child was sent to India indefinitely for a number of reasons. Even if I am wrong in making this factual finding, the court in Sui held that intention is only one factor in determining permanency. In this case, what may have been a temporary arrangement became permanent with the passage of time. Unlike the wife in Hsu, Gurinder accepted this change, as evidenced by the child’s continued stay in India after the original two (2) months (January and February 2008) and by the renewal of the child’s visa in the fall of 2008. Following Sui, I have considered other indicia of permanency besides the passage of time. Here, the child has established relationships with other relatives, obtained medical treatment and developed friendships with other children in India.

[84]        Given my finding that the child has resided in India with the maternal grandparents “on a permanent basis for a significant period of time”, the court does not have jurisdiction to make a custody order under s. 22(1)(a).

A child, in the appropriate circumstances, can be found to have two concurrent habitual residences pursuant to s. 22(2) (b) of the CLRA.  The decision will ultimately depend on the individual facts of a case.  Cognizant of the legislative purposes for which s. 22 was legislated, we are not persuaded that this conclusion will undermine those purposes.  This conclusion also recognizes the living reality of those children who are in a truly joint custodial arrangement, whose numbers will be limited. Riley v. Wildhaber 2011 ONSC 3456 Canlii (Div. Ct.).

Two Habitual Residences Possible - In Brouillard v. Racine, 33 R.F.L. (5th) 48 (Ont. S.C.J.), Justice Pierce found that the child had two concurrent habitual residences under section 22(2)(b). The Ontario Court of Appeal in Jerome v. Steeves, 30 R.F.L. (6th) 256 (Ont. C.A.), also recognized that a child could have two concurrent habitual residences for the purposes of deciding access issues.

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The Divisional Court in Riley v. Wildhaber, 2011 CarswellOnt 6587 (Ont. Div. Ct.): has come down firmly on the side of the proposition that a child, in the appropriate circumstances, can have two concurrent habitual residences under section 22(2)(b) of the CLRA and, if that is the case, the Ontario courts have the ability to decline to exercise jurisdiction, where another jurisdiction would be the more appropriate forum.

Jurisdiction – Serious risk of harm – Section 23 of the CLRA

Section 23 of the CLRA permits a court to exercise jurisdiction, despite sections 22 and 41, where the child is physically present in Ontario and the court is satisfied, on a balance of probabilities that the child would suffer serious harm if the child remained in the care of or was returned to the person legally entitled to custody or the child was removed from Ontario. The serious risk of harm test has been equated with the grave risk of harm test set out in Article 13B of the Hague Convention. Thomson v. Thomson, (1994) 6 R.F.L. (4th) 290 SCC; Brown v. Pulley, 2015 ONCJ 186.

Jurisdiction – declining jurisdiction under section 25 of the CLRA

In determining whether to decline to exercise its jurisdiction, the court should consider the purposes of the Act, specifically as outlined in clause 19 (b). The analysis under section 25 is akin to the balance of convenience test in subclause 22 (1) (b) (vi). See: Dhillon v. Bunipal, supra.

Jurisdiction – Temporary orders under section 40 of the CLRA

Section 40 (b) the Children's Law Reform Act provides that where a court has not exercised its jurisdiction under section 22 or has declined jurisdiction under section 25 or 42 it may make such interim orders regarding custody or access as the court considers to be in the child’s best interests.

In Brown v. Pulley, 2015 ONCJ 186, the mother, who had removed children from North Carolina in the middle of court proceedings, failed to establish that Ontario had jurisdiction under section 22 or 23 (serious risk of harm to child) under the CLRA. The court indicated it would use section 40 of the CLRA to return the child to North Carolina (the court also ordered the child returned pursuant to the Hague Convention).

Mobility – Relevant factors are set out in Gordon v. Goertz [1996] 2 S.C.R. 27

a) no legal presumption in favour of de facto custodial parent.b) focus is on the best interests of the child and not the wishes of the parentc) the court should consider the existing parenting arrangementd) the desirability of maximizing contact with both parents.e) the views of the child

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f) custodial parent’s wishes to move are only considered if they are relevant to their ability to meet the needs of the children.

g) disruption to the child by change in school, community and family they have come to know.

Nunweiler 5 RFL (5th) 442 (BCCA) – on an originating application (Gordon was a variation) the following Gordon factors are relevant: the desirability of maximum contact; the views of the child; the reason for moving where relevant to meeting the needs of the child; disruption to the child of a change in custody; and disruption to the child on removal from family, schools, and community. On an initial application, there is no pre-existing determination that the relocating parent is the parent best suited to meeting the child's needs. The parent's wish to move is simply a factor. The Court of Appeal noted that under Nunweiler, the parent's reasons for moving are relevant only if they disclose an improper purpose, such as the intent to thwart the other parent's relationship with the child. Absent improper motive, the reasons are not relevant to the analysis.

Good review of factors and updated law in Butler v. Percy, 2009 CanLII 46443 (ON S.C.), also in Ashman v. James, 2008 ONCJ 786, where the following is set out:

The principles that I have gleaned from the cases where a move is prohibited include the following:

(a) the custodial parent is moving for an improper purpose such as to frustrate an access parent’s relationship with the child: Jantzi v. Jantzi, 2003 CarswellOnt 5370 (Ont. S.C.).

(b) the custodial parent is moving away from something, not to something: Bjornson v. Creighton 2002 CarswellOnt 3866 (Ont. C.A.).

(c) the move would completely sever the relationship between the access parent and the child because of distance and prohibitive costs of access: Bartlett v. Bartlett, 2004 ONCJ 276.

(d) the parents shared equally the tasks of parenting and to some extent the time involved with the child: Saunders v. Saunders (Bilquist), 2005 Cars-wellNS 58 (N.S.S.C., Fam. Div.).

(e) plans for the move are poorly thought out and fraught with uncertainty: Maillet v. Gauld, 2005 NBQB 23.

With respect to those cases where a move has been allowed, the following principles emerge:

(a) the fact that the parents share joint custody is not sufficient to prevent a move: Johnson v. Cleroux 2002 CarswellOnt 787 (Ont. C.A.).

(b) the fact that a parent’s access will be disrupted is not sufficient to prevent a move: Bjornson v. Creighton, supra.

(c) custodial parent’s views and wishes are to be given serious

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consideration: Bjornson v. Creighton, supra.(d) reasons for move are bona fide and not made to frustrate access or

relationship with access parent: Sheikh v. Sheikh , 2005 CarswellOnt 1690 (Ont. S.C.).

(e) disruption in custody would have more serious consequences to the child than the disruption of moving: Lindsay v. Lindsay, 2002 CarswellOnt 4291 (Ont. S.C.).

Ontario Court of Appeal Case- Berry v. Berry 2011 ONCA 705 (CanLII) – move not permitted, where father had shared parenting time with the child. Court found that reasons for move were given undue weight and that relationship with father was not given enough weight.

The Nova Scotia Supreme Court in N.D.L. v. M.S.L., 2010 NCSSC 68 Canlii listed additional factors (in paragraphs 9 and 10) that courts have considered when applying the framework in Gordon v. Goertz as follows:

[9] An analysis of cases that have applied these principles provides additional detail to the factors to be considered. Those details are:

(a) the number of years the parents cohabited with each other and with the child

(b) the quality and the quantity of parenting time

(c) the age, maturity, and special needs of the child

(d) the advantages of a move to the moving parent in respect to that parent’s ability to better meet the child’s needs

(e) the time it will take the child to travel between residences and the cost of that travel

(f) feasibility of a parallel move by the parent who is objecting to the move

(g) feasibility of a move by the moving parents new partner

(h) the willingness of the moving parent to ensure access or will occur between the child and the other parent

(i) the nature and content of any agreements between the parents about relocations

(j) the likelihood of a move by the parent who objects to the relocation

(k) the financial resources of each of the family units

(l) be expected permanence of the new custodial environment

(m) the continuation of the child’s cultural and religious heritage

(n) the ability of the moving parent to foster the child’s relationship with the other parent over long distances

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[10]         There have been cases in which judges have remarked that it is in the best interest of a child to be in the care of a parent who is happy and who feels secure and thus the parent should not be “...denied the opportunity to be the most fulfilled  person she can be....”  ( McCullogh v. Smith, 2007 NSFC 23 at para. 43)

Effect of Separation Agreement – There is no burden on a party to show a material change in circumstances when custody only in separation agreement, not a court order. Henderson 2005 BCCA 277. But, see Woodhouse v. Woodhouse (1996) 20 R.F.L. (4th) 337 (Ont. CA), that says Gordon principles apply equally when there is no order and a party is trying to change a separation agreement though an originating application. This case also states that Gordon principles apply equally to cases under the CLRA.

Reason for the move - Gordon v. Goetz directs that the judge should consider the parent’s reason for moving only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child. In Trisolino v. De Marzi, 2013 ONCA 135 (CanLII) the court found that the mother’s reasons for the move reflected her perception of the needs of the children, and her judgment about how those needs may best be fulfilled. 

Mobility – Temporary moves

The leading case for determining if a relocation should be permitted on a temporary motion is Plumley v. Plumley [1999] O.J. No. 3234 (S.C.J.), where the court set out the following principles:

a) A court will be more reluctant to upset the status quo on an interim motion and permit the move when there is a genuine issue for trial.

b) There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial of the best interests of the children or the best interests of the children might dictate that they commence school at a new location.

c) Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong possibility that the custodial parent’s position will prevail at trial.

The following are additional principles regarding temporary relocation cases (See: Boudreault v. Charles, 2014 ONCJ 273 (CanLII)).

a) The burden is on the parent seeking the change to prove compelling circumstances exist that are sufficient to justify the move. See: Mackenzie v. Newby, [2013] O.J. No. 4613 (OCJ).

b) Courts are generally reluctant to permit relocation on a temporary basis. The decision will often have a strong influence on the final outcome of the case, particularly if the order permits relocation. The reality is that courts do not like to create disruptions in the lives of children by making an order that may

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have to cause further disruption later if the order has to be reversed. See: Goodship v. McMaster [2003] O.J. No. 4255 (OCJ).

c) Courts will be more cautious about permitting a temporary relocation where there are material facts in dispute that would likely impact on the final outcome. See: Fair v. Rutherford-Fair 2004 CarswellOnt 1705 (Ont. S.C.J.). In such cases, the court requires a full testing of the evidence. See: Kennedy v. Hull, [2005] ONCJ 275.

d) Courts will be even more cautious in permitting a temporary relocation when the proposed move involves a long distance. It is unlikely that the move will be permitted unless the court is certain that it will be the final result. See my comments in: Downey v. Sterling [2006] O.J. No. 5043 (OCJ) and Costa v. Funes [2012] O.J. No. 3317 (OCJ).

e) Courts will be more cautious in permitting a temporary relocation in the absence of a custody order. See: Mackenzie v. Newby, supra.

f) Courts will permit temporary relocation where there is no genuine issue for trial (see: Yousuf v. Shoaib, [2007] O.J. No. 747 (OCJ)), or where the result would be inevitable after a trial (see: Mackenzie v. Newby, supra, where the court observed that the importance of the father’s contact with the child could not override the benefits that the move would have on the child).

g) In assessing whether the three considerations in Plumley, the court must consider the best interest factors set out in subsection 24 (2) of the Children’s Law Reform Act (the Act) and any violence and abuse in assessing a parent’s ability to act as a parent as set out in subsections 24 (3) and (4) of the Act as well as the leading authority on mobility cases, Gordon v. Goertz, [1996] 2 S.C.R. 27 (S.C.C.).

Where one parent moves to another city or community with the child without notice to the other parent, the other parent may apply to have the child returned to the home community.   Hazelwood v. Hazelwood 2012 ONSC 5069 (SCJ); Rifai v. Green, 2014 ONSC 1377 (CanLII). However, this opportunity will be lost if the other parent delays in bringing the matter to court. See: Rifai, where 4 months elapsed.

Money terms – In Laurie v. Laurie, 2004 CarswellMan 12 the mother was ordered to share access transportation after her move as a condition of custody. In Salvador v. Salvador, 2004 CarswellOnt 778, the parents were ordered to share the child’s therapist’s costs.

Parenting Coordinators – There are many advantages in moving parenting issues from the courts to a parenting coordinator. It is a decision increasingly being made by separated parents and it is their decision alone. It is outside the jurisdiction of the court to delegate the court's authority to a parenting coordinator, or to dispense with the consent

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of a parent to an agreement for mediation/arbitration, or an agreement for parenting coordination services and arbitration in accordance with the Arbitration Act, S.O. 1991, c.17 and the Family Statute Law Amendment Act. Bozin v. Bozin, 2010 CarswellOnt 1492 (Ont. S.C.J.).

Courts can order parties to utilize a parenting coordinator, but can’t delegate decision-making. The court cannot order a parenting coordinator to make decisions as this would be delegation, but the court can order parenting coordination to assist the parties in reaching agreement. Hunter v. Hunter (2008), 52 R.F.L. (6th) 109 BCSC.; Katz v. Katz (2010), 1 R.F.L. (7th) 329 Ont. S.C.J.

Also see Imineo v. Price, 2011 CarswellOnt 13259.

In Roberts v. Burelle, [2014] O.J. No. 174 (Ont. SCJ), the parties were ordered to use a parenting coordinator in a mediation role only, with authority given to the parenting coordinator to report to the court with recommendations, if the parties did not agree on the parenting plan for the child. The role would be akin to an Open mediation report, but there was no arbitral function.

Police Enforcement –It is an order of last resort to be made sparingly and in exceptional circumstances. It can frighten children and polarize a difficult situation. Allen v. Grenier [1997] O.J. No. 1198 (General Div.).; Klinkhammer v. Dolan and Tulk 2009 ONCJ 630; F.(M.) v. M. (C.) (2009), 72 R.F.L. (6th) 226 (N.S. Fam. Ct.).

Thorough review of case law about exercising caution, potential harm to children and issues to address before such an order being granted contained in Patterson v. Powell 2014 ONSC 1419.

Primary Caregiver – Importance - Warcop v. Warcop, 2009 CanLII 6423 (ON S.C.) – Par: 85: There is some authority at the Superior Court level for the proposition that the primary caregiver should be given preference: see Brotherton v. Brotherton, [2006] O.J. No. 2844 (S.C.J.); and Spencer v. Spencer, [2006] O.J. No. 4144 (S.C.J.).  There is some danger, in my view, that any such principle could become a proxy for the now-discredited tender years doctrine.  At the time of separation, it is quite likely that very young children have been cared for, primarily, by their mothers.  However, empirical evidence suggests that infants form attachments to both parents at approximately the same age, between six and seven months, even though fathers typically spend less time with their infants than do mothers: see Kelly (2005), supra.  Thus, in my view, as mandated by McLachlin J. in Young, supra, a consideration of giving preference to the primary caregiver must be considered objectively, based on the evidence, and not from the perspective of any predisposition.

Primary Residence -   I find that a change to a week-about schedule does not necessarily mean that father cannot have primary residence.  While “primary residence” is not defined by statute, the case law contains examples where parents share time 50-50, and one of them has primary residence:  Phillips v. Myers, 2009 CarswellOnt 8746 (Ont. C.J.)

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(where parents alternated weeks, but one parent had primary residence); Seminoff v. Seminoff, 2007 CarswellBC 873 (B.C.S.C.) (where parents alternated days, but one parent had primary residence).  The designation “primary residence” may be needed, for example, to register a child in school. Tran v. Bissessar, 2010 ONCJ 377 (CanLII).

Procedure (jurisdiction)- Where custody has been dealt with in a divorce action, any variation proceeding must be brought under the Divorce Act. French v. McKenzie (2003) 38 RFL (5th) 81 (Ont.SCJ).

An application for custody is stayed, if child protection proceedings are commenced. V.E. v. V.M. (1994) 9 RFL (4th) 349 (Ont. Gen. Div.)

Unless the court grants leave, a proceeding for custody or access under the CLRA is stayed if a divorce action is commenced. (s. 27 CLRA).

The Superior Court does not have jurisdiction to vary an OCJ order. Doherty-Mudler v. Mrowietz (2003) 43 RFL (5th) 313 (SCJ).

The court has jurisdiction to hear a variation motion where the case is under appeal where the order is no longer in the child’s best interests. Mantha v. Oliver (1994) 5 RFL (4th) 398 (Prov. Div.).

The court can only assume jurisdiction if the child is habitually resident in Ontario. S.22 (1)(a); under s. 22(1)(b) if the child is not habitually resident in Ontario, but meets all requirements of this clause (Murray v. Ceruti, 2014 ONCA 679).; under section 23 where the child is present in Ontario and the court is satisfied that the child would suffer serious harm if the order was not made. Where pregnant mother moves to California to have child = no jurisdiction. Dovigi v. Razi [2012] O.J. No. 2418 (CA). The court cannot resort to the common law to assume jurisdiction. Wang v. Lin [2013] O.J. No. 254 (OCA).

Attornment is not referenced in the CLRA. At most, it is a factor to be considered in the analysis mandated by s. 22(1)(b), and in the analysis of whether to decline jurisdiction under s. 25. On the facts of this case, it is not dispositive of either issue. Murray v. Ceruti, 2014 ONCA 679.

A child can be habitually resident in Ontario without being physically present. Singh v. Saini [2013] O.J. No. 3209 (SCJ).

Even if no jurisdiction, court can make temporary orders under s. 40 of the CLRA to ensure secure and predictable arrangements for the child. The court can make return orders and the payment of the cost of transportation or other expenses of the child or parties. In Wang v. Lin, the appeal court sent it back to the Superior Court and suggested a staged return to China, as the children were in the middle of a school year.

Reconciliation - In Ontario a reconciliation ends an interim order. See Grail v. Grail, 27 R.F.L. (3d) 317 (Ont. Master) and Nolan v. Duguay, 3 R.F.L. (5th) 252 (Ont. S.C.J.).

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Religion - Young v. Young, 1993 4 S.C.R. 4 – the custodial parent can’t interfere with how a child spends his time with an access parent unless the activity poses a risk to the child. However, in Dang v. Hornby, (2006) 33 R.F.L. (6th) 113 (Ont. SCJ), the court ordered that the father refrain from imposing his religious views on the children and the amount of time the children could spend in church was restricted. And, in Ali v. Ansai, 2010 CarswellOnt 2537, the father was prohibited from undermining the mother’s Muslim faith with the children.

Restrictions on third partiesIn M. (A.) v. M. (S.), 2005 CarswellOnt 1247 (OCJ) the mother was ordered not to allow her parent in her home when the child was present.

In James v. James, 2005 CarswellAlta 563 (QB), the court ordered that the mother could not prevent the father from involving his new partner with the children.

Same-Sex Parents: B.(J.S.) v. S. (D.L.) [2004] O.J. No. 16 (SCJ). This should not be a factor. The most important element in the healthy development of a child is a stable, consistent, warm and responsible relationship between the child and the caregivers. There is no evidence that same sex parents cannot provide this. Bubis v. Jones [2000] O.J. No. 1310 (SCJ).

School: Onus is on parent trying to change school. If joint custody, courts should be reluctant to interfere unless parents can’t resolve the issue. Change must be in the child’s best interests. Must consider factors that impact on the stability of the child. Court should look at how long the child has gone to current school, is there any prospect of parent moving in the near future, where the child was born and raised, whether a move will require new child care providers or other unsettling features and decisions parents made prior to separation about schooling and any problems with the current school. Askalan v. Taleb, 2012 ONSC 4746 Canlii.

In Bandas v. Demirdache, 2013 ONCJ 679 (CanLII), the court stated the following at paras. 21 and 22:

[21]        If an aspect of a child’s life, such as school placement, is to be disrupted by an order of the court, there must be good reason for the court to do so.  Thus, before a court will order a child to transfer schools, there must be convincing evidence that a change of schools is in the child’s best interests (Perron v. Perron, [2012] O.J. No. 5502, 2012 ONCA 811   (CanLII) , 301 O.A.C. 313, 113 O.R. (3d) 600, at para. 38).

 [22]        Other cases have made this point by reference to the need for cogent evidence to show that a change of schools is in the child’s best interests.  The reason for this is understandable from the child’s perspective.   A school age child will likely have already formed attachments to the school he or she attends.  Continuing the child’s existing school placement promotes stability in the child’s life.  (Ursic v. Ursic, [2006] O.J. No. 2178, 32 R.F.L. (6th) 23, 149 A.C.W.S. (3d) 38, 2006 CanLII 18349 (ON CA), 2006 CanLII 18349, 2006 CarswellOnt 335, at para 32).

Where one parent is a French minority parent, the court should always consider, as an incident of custody whether or not the child should go to a French school (as opposed to

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French immersion school). Benefits of this are discussed in Perron v. Perron 2012 ONCA 811 Canlii.

Self-Help: Should be discouraged. Howard v. Howard, [1999] O.J. No. 3164 (SCJ). The party was not allowed to argue status quo where self-help and only 3 months had passed. Nyari v. Velasco 2008 ONCJ 272 Canlii.

Separation: Court has the jurisdiction to make custody/access orders even if the parties have not separated. Mead v. Aerssen (2009) 90 RFL (6th) 440 (OCJ).

Separation Agreement – Change by Application - In an application which seeks to vary a custody agreement between the parties, the court must have reference to the Supreme Court of Canada’s decision in Miglin v. Miglin, [2003] 1 S.C.R. 303:  See Hearn v. Hearn, [2004] A.J. No. 105 (Q.B.) and Carrière v. Giroux, [2006] O.J. No. 1532 (S.C.J.).  The court must examine the separation agreement to see if it is consistent with the overall objectives and values in the Divorce Act.  Therefore, the court must consider the best interests of the children, while considering the importance of the parents’ autonomy in reaching their own agreement. See: Blois v. Gleason, 2009 CanLII 23109 (ON S.C.).

The court has to no jurisdiction to vary a separation agreement about custody. However, under section 56 of the Family Law Act, it can disregard any provision in the agreement and make an order, if it is in the child’s best interests. Paulo v. Yousif 2011 ONCJ 841.

Siblings: The court should try to ensure that siblings are raised together in the absence of compelling evidence to separate them in their formative years. Hurdle (1991) 31 RFL (3d) 349. Voortman,  4 R.F.L. (4th) 250 (Ont. C.A.)

Silent as to custody – Court can order this. The court in M. v. F.,  2015 ONCA 277  writes:

[39]      For over twenty years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access.” These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.

[40]      It was therefore open to the trial judge to adopt the “parenting plan” proposed by the assessor without awarding “custody.” It was also in keeping with the well-recognized view that the word “custody” denotes “winner” so consequently the other parent is the “loser” and this syndrome is not in the best interests of the child.

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Status Quo (Temporary custody) – Also see temporary variation

It is a long standing legal principle that absent evidence of material change and that an immediate change is required, the status quo is ordinarily to be maintained until trial. See Niel v. Niel, 28 R.F.L. 257 (Ont. C.A.), Grant v. Turgeon, 5 R.F.L. (5th) 326 (Ont. S.C.J.); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (Ont. S.C.J.); Easton v. McAvoy, 2005 CarswellOnt 7379 (Ont. C.J.) ; M.W. v. E.B. and the Minister of Citizenship and Immigration, 2005 Can LII 18315 (Ont. S.C.); and Horton v. Marsh, 2008 CarswellNS 371 (N.S. S.C.).

In making an interim custody order, a court should generally maintain the status quo in the absence of important reasons suggesting that change is necessary in the child’s best interests. McEachern v. McEachern (1994) 5 RFL (4th) 115.   To disturb the status quo, there must be compelling evidence to show the welfare of the child would be in danger in maintaining the status quo, namely the evidence must clearly and unequivocally establish that the status quo is not in the child’s best interests: Miranda v. Miranda, 2013 ONSC 4704 (CanLII), para 26. Status quo is an important consideration in a custody case: Denny v. Bartkiewicz, [2003] O.J. No. 2498 (S.C.); Barcier v. Smith, [2003] O.J. No. 1557 (S.C.).

The rationale for this principle lies in the fact that there is a concern for fairness to the parties and a concern for the best interests of the child.  Generally, it is not in the best interests of a child to change the residential arrangements if there is a possibility of yet another change because of a pending trial. (See: Copeland v. Perreault [2007] O.J. No.1889 (O.C.J.) at para. 49.)

LeBlanc v. Khallaf, 2010 CarswellNS 376 (N.S. S.C.): "What temporary living arrangements are the least disruptive, most supportive and most protective for the child. In short, the status quo of the child, the living arrangements with which the child is most familiar, should be maintained as closely as possible."

It is generally not in the best interests of the children to disturb a status quo on a temporary basis pending trial without compelling reasons. Those compelling reasons usually include an assessment report from a private assessor or the Office of the Children’s Lawyer recommending an immediate change in residence; an indication that the children are doing poorly under a particular regime; serious mental health issues in connection with one of the parents; and drug or alcohol addiction on the part of one of the parents. As well, it must be demonstrable that one or more children of the marriage are doing very poorly as a result of the parenting regime. Shotton v. Switzer, 2014 ONSC 843 (CanLII).

If one party leaves with the home with the child, without cause, that party should not be able to rely upon the status quo. Lisanti v. Lisanti (1990) 24 RFL (3d) 174 (SCJ). Self-help is to be discouraged, status quo, in a fresh separation entails a look at the status quo when the family was together. Howard v. Howard (1999) 1 RFL (5th) 375 (SCJ). Children should not be needlessly disrupted -- by a parent unilaterally creating a new status quo through manipulation or deliberate acts.   Izyuk v. Bilousov 2011 ONSC 6451

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(SCJ);  Nyari v. Velasco  2008 ONCJ 272 (OCJ). In Kimpton v. Kimpton, , 2002 CarswellOnt 5030 (Ont. S.C.J.) it was noted that the status quo meant the primary or legal status quo, not a short-lived status quo created to gain a tactical advantage. See also Horton v. Marsh, 2008 CarswellNS 371 (N.S. S.C.) which notes that the status quo is the status quo which existed without reference to the unilateral conduct of one parent unless the best interests of the child dictates otherwise.

A parent who engages in self-help tactics despite the best interests of the child will generally raise serious questions about their own parenting skills and judgment.  In many cases, courts conclude manipulative, selfish or spiteful parents simply can’t be entrusted with custodial authority they would likely abuse. Izyuk v. Bilousov (supra); Clement v. Clement 2010 ONSC 1113 (SCJ); Rifai v. Green, 2014 ONSC 1377 (CanLII).

The longer the child has been in a new situation (or city) – however it may have been created – the more closely the court will have to focus on the child’s best interests, as opposed to any violation of parental rights.  Sodhi v. Sodhi  (2002) 25 R.F.L. (5th) 420 (Ont. C.A.)

Where the best interests of the child require a change in the status quo, the court can do this, especially when there are long waiting times. Forte v. Forte [2004] O.J. 1738 (SCJ).

Suspension of accessThe court has jurisdiction to suspend or cancel access if a parent fails to obey conditions in a court order. Roach v. Kelly, 2003 CarswellOnt 5037.

Travel -     In Johnson v. Johnson [1996] O.J. No. 490 (General Division) Weekes J. concluded that the mere fact that the applicant had relatives in a country which was not a signatory state to the Hague Convention would not justify making an order preventing travel with the child in the absence of evidence that there was some possibility that the children might be abducted. Cited with approval in Nju v. Fort [2011] ONSC 1716 Canlii, cited with approval in, Hamid v. Mahmood, 2012 ONCJ 474 (CanLII), where travel not permitted though due to travel advisory about Pakistan.

Variation of Final orders (Custody/Access) – Wiegers v. Gray, 2008CarswellSask 10 (CA) – Two-part test: first, the party seeking the variation bears the onus of demonstrating a material change that will materially affect the child; and, if a material change has been shown, the judge may then consider whether the material change is such, that it is in the best interests of the child to vary it. A child aging is not a material change. The change must have altered the child’s needs or the ability of the parent to meet those needs. The last order is presumed to be correct.

Rationale: Few parties have the resources to continually litigate these issues. There are significant benefits to the children and the parties involved in the stability and predictability of finalizing the issues. If variation becomes the rule, instead of the exception, the best interests of children, shall generally not be served.

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There must first be a material change, even if both parties are seeking a change in the order. Persaud v. Garcia-Persaud 2009 ONCA 782.

Three part test set out in Butler v. Percy, 2009 CanLII 46443 (ON S.C.), citing Gordon v. Goertz below.(1)    There is a change in her ability to meet the needs of the children;(2)    The change materially affects the children; and (3)    The change was not foreseen or could not have been reasonably contemplated at the time the initial order was made.

Gordon v. Goertz – [1996] 2 SCR 27- the change in circumstances must not have been forseen or reasonably contemplated by the judge who made the original order. The change must be to the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child.

 In Wood v. Wood [2005] O.J. No. 3691 (Ont. SCJ), the expressed preferences of a child as to custody may amount to a material change in circumstance sufficient to vary a custody order. 

The Ontario Court of Appeal reminds us of the necessity to find a change in circumstances before varying a custody or access order in P. v. G.-P., 2009 ONCA 782, at para 3:

As this court has made clear, jurisdiction to vary a custody and access Order is dependent on an explicit finding of a material change in circumstances since the previous Order was made. If an Applicant fails to meet this threshold requirement, the inquiry can go no further: see L. v. S. (2008), 52 R.F.L. (6th) 239 (Ont. C.A.). The matter is jurisdictional and a court must make a finding of a material change of circumstances even when, as here, both parties request a variation.

Docherty v. Beckett (1989), 21 R.F.L. (3d) 92 (Ont. C.A.):The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its discretion for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued:

Hornan 2007 CarswellMan 421 (Man.Q.B.). Should only allow limited look at evidence predating the order to understand how it was made to determine the first stage of establishing a material change. 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 (Ont. C.A.).

Wide interpretation of material change in circumstances taken in Zolaturiuk v. Johansen, 2009 CanLII 15907 (ON S.C.). Material does not mean major. If order is not working and

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needs to be clarified or fine-tuned, this can be material. Also should not tie court’s hands to adjust for changes in recreational activities.

Ongoing conflict and actions running completely counter to the spirit of the custody order can be, in themselves, enough to constitute a material change:  Zinck v. Fraser, 22 R.F.L. (6th) 334 (N.S.C.A.).

Effect of Separation Agreement – This does not have the effect of an order and material change is not required. Askalan v. Taleb, ONSC 2012 4746 Canlii

Variation (Interim Variation of final orders) – also see Status Quo

In Innocente v. Innocente, 2014 ONSC 7082 (CanLII) , Gauthier J. summarized the applicable law as follows:

[45] In those cases where a temporary or interim variation of a final order has been granted, the courts have found what are in my view, exceptional circumstances:(a)   To prevent undue hardship;(b)   Where the failure to make the interim order would be incongruous or absurd; and(c)    Where there is a pressing and immediate urgency. 

Stuyt v. Stuyt [2006] O.J. No. 4890 (SCJ) – the custodial status quo will not be changed on an interim motion in the absence of compelling reasons indicating the necessity of a change to meet the children’s best interests.

Variation of temporary orders - Variation of orders, even interim orders, is governed by section 29 of the Children’s Law Reform Act. A closer scrutiny of the legislative wording of this section is worthwhile. Section 29 does not say that a court may vary an order if there has been a material change in circumstances. What it says is that a court shall not vary an order unless there has been a material change in circumstances. This difference is significant. A change in circumstances is not sufficient. The change must be “a material change”. This means it must be “substantially important”. McIsaac v. Pye 2011 ONCJ 840.

Interim, or temporary orders, are by their nature imperfect solutions to often complex problems. They are based on limited evidence, typically in affidavit form. They are meant to provide “a reasonably acceptable solution to a difficult problem until trial”: see Chaitas v. Christopoulos, [2004] O.J. No. 907 (S.C.J.) There is, therefore, a heavy onus on a party who seeks to vary a temporary order - essentially replacing one imperfect solution with another imperfect solution - pending trial: Boissy v. Boissy, 2008 CarswellOnt 4253 (S.C.J.).

From Samson v. Murphy, 2014 ONSC 5353: In Grgurich v. Del Ben 1997 CanLII 12390 (ON SC), (1997) the court writes at para. 8, “Interim orders are temporary orders which are intended to remain in effect until final disposition of the issues at trial. Interim orders should not be tinkered with or varied save in appropriate circumstances.” In Greve v. Brighton,  2011 ONSC 4996, at para 24, the court writes that the court should only vary

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the interim order “… where the moving party has a demonstrated change in circumstances and, as a result of those changed circumstances, there are compelling reasons that the order should be varied to meet the Children’s best interests.”

Norland v. Norland [2006] O.J. No. 5126 (SCJ) “status quo will be maintained on an interim custody motion unless there is evidence that to do so will be harmful to the children.”– Interim custody/access orders are not to be varied unless there is a compelling reason. Need a material change in circumstances. There should be viva voce evidence and a full cross examination. Kirkham v. Kirkham [2008] 57 R.F.L. (6th) 120 (Ont.SC).

These principles don’t apply to the variation of an order granted without notice as the court has yet to make a determination with a complete evidentiary record. Manzoor Ur-Rahman v. Oma Devi Mahatoo et al., 2014 ONSC 3998 (CanLII).

Violence – s. 24 (4) of the CLRA requires us to consider if the party has committed violence or abuse against the spouse or parent of the child, a member of the person’s household, or the child when considering their ability to parent.

Voice of the Child - The United Nations Convention on the rights of the child says that children who are capable of forming their own views have the legal right to express those views in all matters affecting them including judicial proceedings. In G. (B.J.) v. G. (D.L.), 2010 CarswellYukon 108 (Y.T. S.C.) the court sets out that:

More than just lip service must be paid to children's legal rights to be heard. Because of the importance of children's participation to the quality of the decision and to their short and long term best interests, the participation must be meaningful; children should:

1. be informed, at the beginning of the process, of their legal rights to be heard;

2. be given the opportunity to fully participate early and throughout the process, including being involved in judicial family case conferences, settlement conferences, and court hearings or trials;

3. have a say in the manner in which they participate so that they do so in a way that works effectively for them;

4. have their views considered in a substantive way; and

5. be informed of both the result reached and the way in which their views have been taken into account

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