Russell v. Thompson, 2021 ONCJ 16

ONTARIO COURT OF JUSTICE CITATION: Russell v. Thompson , 2021 ONCJ 16 DATE: January 12, 2021 COURT FILE No.: D80534/15 BETWEEN: MICHAEL GEORGE RUSSELL Applicant — AND — TAMEIL THOMPSON Respondent Before Justice Melanie Sager Heard on December 8 th and 24 th , 2020 Reasons for Judgment released on January 12, 2021 Pamila Bhardwaj..................................................................................... counsel for the applicant Tameil Thompson.................................................................... the respondent on her own behalf SAGER J.: Introduction 1 . Mr. Russell (father) and Ms.

Thompson (mother) have a daughter Faith, who was born on […], 2014. By order of Justice Roselyn Zisman dated May 31, 2018, the mother has custody of Faith and the father has regular week to week access. 2 . On February 3, 2020, Mr. Russell commenced an Application seeking an order revoking the legal change carried out by Ms. Thompson to Faith’s last name from “Russell” to “Thompson”, registered on May 22, 2019.

The father seeks this relief on the basis that the mother failed to comply with the Change of Name Act (the Act) and provide him with the required notice of the proposed change at least 30 days before she filed the Application to change Faith’s surname with the Registrar General. He argues that the registration of the name change was obtained fraudulently and must be revoked as the mother misrepresented to the Registrar General that she had given the father proper notice by providing a false affidavit of service attesting to have sent him notice by registered mail. 3 .

The mother, who as the custodial parent is entitled to change Faith’s last name, opposes the Application as she says she complied fully with all of the conditions required of her by the Act, did not swear a false affidavit of service of the requisite notice and therefore, there was no fraud. 4 . The Act provides at subparagraph 10(1) that this court may revoke a change to a child’s name that was obtained by fraud, misrepresentation or for an improper purpose. 5 .

The court must therefore decide if the mother knowingly obtained the change to Faith’s surname without providing the father notice of the proposed change as mandated by the Act and therefore obtaining the name change by fraud. 6 . The trial of this matter was heard over two days on December 9 th and 24 th , 2020. Both parties relied on affidavit evidence in chief

and were cross examined. The parties’ positions The father’s position 7 . The father’s position is that the mother obtained the change to Faith’s last name by fraud as the mother falsely claims to have provided him with notice of the name change by registered mail when in fact she sent him an envelope by registered mail with no return address containing only blank paper. 8 . The father says he received an envelope in early March 2019 by registered mail containing several blank pieces of paper. The envelope did not have a return address or the sender’s name. 9 .

The father only learned that the envelope was sent by the mother after she advised him of the name change and he obtained information from the Registrar General confirming that the tracking number on the envelope in his possession matched the tracking number provided by the mother as proof of service of the required notice and the Application.

As the envelope did not contain the required notice and a copy of the Application, the father says the mother changed Faith’s name without complying with subsection 5(6) of the Act, which requires her to provide him with notice of the proposed change at least 30 days in advance of filing the Application with the Registrar General. 10 . Had he been notified as the Act requires, the father says that he would have come before the court within the 30 days the mother had to wait before registering the change pursuant to subsection 6(7) of the Act and seek relief that would prohibit the change. 11 .

The father believes the mother changed Faith’s surname without notifying him as part of her overall campaign to minimize his role in Faith’s life. The mother’s position 12 . The mother says that she did not obtain the name change by fraud or misrepresentation and to the contrary, she complied with the notice provision of the Act and sent the father notice of her intention to change’s Faith’s surname by registered mail 30 days before filing the Application with the Registrar General. She denies sending him an envelope with blank paper. 13 .

The mother says there was no ill intention in changing Faith’s name and that she has made it known to the father for years that she planned to change Faith’s surname and he never raised an objection. 14 . Finally, the mother says that the father is extremely litigious, has taken her to court several times without good reason, and, that this is just another attempt by him to upset her life. Brief background of the parties and the previous litigation 15 . The parties were involved in a relationship that resulted in the birth of their daughter on […], 2014. The parties never lived together.

The mother has always been Faith’s primary caregiver and the father has always exercised access to Faith and demonstrated a desire to be involved in her life. 16 . The parties have been involved in an inordinate amount of litigation considering Faith is only 6 years old. It is safe to say they are involved in a fairly high conflict relationship. The chart set out below provides a timetable for the litigation and what orders were made.

Year litigation commenced Who commenced litigation Relief requested in pleadings Date of order resolving litigation Outcome of litigation March 2015 Father Application for shared custody/equal parenting time May 8, 2015 Father withdrew his claims June 5, 2017 Father Application for Shared custody/primary care of Faith May 31, 2018 On consent, mother granted custody of Faith, father granted week to week access and required to pay mother child support July 24, 2018 Father Leave to bring urgent motion for order permitting Faith to travel with him for vacation July 27, 2019 Father’s motion dismissed as May 31, 2018 order did not provide for any extended vacation access by father to Faith

September 10, 2018 Father Seeking order finding mother in contempt for denying access October 4, 2018 Motion dismissed and parties sent to mediation to assist in clarifying access

schedule for 2018 and 2019 October 11, 2018 Mother Father filed a Response to Motion to change seeking his own relief Motion to Change father’s access from alternate weekends from Friday at 3 p.m. to Monday at 9:30 a.m. to Friday at 6:00 p.m. to Sunday at 6:00 p.m. Father requests a comprehensive access

schedule for statutory, religious and school holidays and permission to travel with Faith April 8, 2019 Comprehensive detailed order setting out father’s parenting time during school, statutory and religious holidays. The order also addresses travel by each party with Faith and contains several general parenting provisions. Applicable Legal Principles Civil fraud 17 . It is well established law that civil fraud must be proved on a reasonable balance of probabilities [1] . The party alleging fraud has the onus of proving the fraud. Justice Turnbull provides a clear and concise

summary of the law of civil fraud in Rosati v. Reggimenti, [2008] O.J. No. 41 commencing at paragraph 33 as follows: 33 The standard of proof of civil fraud is on a balance of probabilities. The onus of proof rests upon the party alleging fraud. In all cases, the court must carefully review the evidence when deciding if

an act or event occurred which would support the requisite factual and legal conclusion that one of the requirements for a finding of civil fraud occurred. The evidence must be clear and convincing to satisfy the balance of probabilities test. The totality of the evidence must be considered and not just separate pieces of evidence assessed in isolation. 34 The finding of fraud against an individual has significant ramifications beyond the immediate litigation between the parties. With that in mind, the four requirements to prove civil fraud must be clearly met on a balance of probabilities. They are: 1.

A false representation must be made by the defendant (the applicant or applicants in the case at bar); 2. Some level of knowledge of the falsehood of the representation(

s) on the part of the defendant (the applicants in the case at bar)whether through knowledge or recklessness; 3. The false representation(

s) caused the plaintiff (the respondent in the case at bar) to act; and 4. The plaintiff's (applicants') actions resulted in a loss. [2] 18 . In Anker v. Sattaur, [2007] O.J. 5257 , the court writes at paragraph 115, “A civil fraud is proven when it is shown that a false representation has been made: (

a) knowingly, or (

b) without belief in its truth; or

(

c) recklessly, careless as to whether it is true or false.” 19 . While the standard of proof for a civil fraud is reasonable balance of probabilities, the caselaw urges, “The more serious the civil fraud alleged, the more cogent the evidence required to establish the fraud and to meet the civil onus of proof.” [3] 20 . I find the following comment by Justice Turnbull at paragraph 33 of Anker v. Sattaur very helpful with respect to the approach to take when analyzing the evidence of alleged civil fraud: “The evidence must be clear and convincing to satisfy the balance of probabilities test.

The totality of the evidence must be considered and not just separate pieces of evidence assessed in isolation.” Analysis Credibility 21 . As the court is faced with deciding the single issue of whether the envelope the mother sent the father by registered mail contained notice of the proposed change to Faith’s surname or blank pieces of paper, credibility of the parties is a major issue in this trial. 22 . The father entered into evidence the original envelope containing blank paper with no return address that he received by registered mail.

The mother’s evidence is that she filed a sworn affidavit with the Registrar General attesting to the fact that she served the father with the requisite notice of the proposed name change by registered mail. In order to decide whose evidence to prefer, the court considered the behavior of the parties in this and the previous litigation set out in the chart above as well as their conduct towards the other parent. 23 .

For the reasons set out below, I believe the father and find him and his version of the events credible whereas I do not believe the mother and I do not find her or her version of the events to be credible. 24 . I have drawn an adverse credibility finding against the mother for the follow reasons which will be expanded upon below: (

a) Her mischaracterization of the previous litigation between the parties; (

b) The offensive, aggressive and threatening manner in which she communicates with the father; (

c) The mother’s version of events is illogical; and, (

d) The lack of importance or significance she places on Faith’s relationship with her father. 25 . I have found the father to be credible and accept his version of events as opposed to those of the mother for the following reasons that will be expanded upon below: (

a) The father’s version of events is consistent and logical; (

b) The father communicates with the mother appropriately; (

c) The father has utilized the court system appropriately in the past to address issues that required court intervention; and, (

d) The father does not minimize the importance of the mother’s role as Faith’s primary caregiver. The Previous Litigation 26. In accordance with the case law, it is necessary to review the totality of the history of the litigation between the parties and the findings made therein and not just the evidence with respect to the events regarding whether or not the father was properly notified of the mother‘s Application to change Faith’s name. The Application commenced by the father in 2017

27. The father’s evidence is that he has had to litigate repeatedly to have a meaningful relationship with Faith since she was born. He says that the mother has created obstacles to this happening naturally causing him to come before the court on multiple occasions. The father says that he commenced litigation only when he was forced to do so by the mother’s unreasonable behaviour. For example, he commenced his second Application for custody of Faith in 2017 because the mother suddenly denied him access after having Faith in his care every weekend. 28.

The mother says that she had to encourage the father to see his daughter when she was younger and even brought Faith to him so that they would have meaningful contact. She says that she has always supported Faith’s relationship with her father. The mother describes the father’s litigation conduct as vindictive and often without merit. She says that the father has commenced court proceedings against her several times and that his claims were dismissed for making false claims.

For example, she notes that the father commenced his Application in 2017 for custody not because she denied him access but because she “insisted that weekend access should be shared equally”. She says he commenced litigation after she made this pronouncement about weekend access and was upset that she picked Faith up from daycare for her weekend parenting time. She considers it ludicrous for the father not to appreciate that both parents should have weekend access to Faith, not just the father. 29.

When Faith started school and was no longer home full time with the mother, she “insisted” on sharing weekends despite Faith having spent weekends in her father’s care for over a year. It is clear from the mother’s evidence that she considered it her right to unilaterally change the father’s access when it suited her. It did not dawn on her that it was unfair or inappropriate to unilaterally change the parenting

schedule that had been in place for some time and that her doing so caused the father to commence litigation. 30. As the mother admits to unilaterally changing the parenting plan in September 2017, it was not unreasonable, as the mother believes, for the father to have commenced court proceedings to obtain an order codifying his access to Faith so that the mother could not once again make unilateral changes. Urgent motion of July 2018 31. The final consent order of May 31, 2018 granting the mother custody of Faith and the father week to week access does not provide for extended or holiday access.

As a result, the father says as soon as he expressed a wish to travel with Faith, the mother would not consent to such travel as it was not contemplated in the May 31, 2018 order. The lack of holiday access led to the father’s urgent motion to travel with Faith in July 2018. 32. The mother’s evidence is that the father’s urgent request to travel with Faith was dismissed because he did not comply with the terms of the May 31, 2018 order which requires the parent travelling with Faith to provide the non-travelling parent with written details of the trip and contact information 48 hours before departure. 33.

The mother’s evidence on this issue is disingenuous. While the wording of the final order of May 31, 2018 does require the “travelling parent” to provide the details of the travel to the “non-travelling parent”, the order only permits the mother to travel with Faith outside of Canada provided she gives advanced notice to the father. Conversely, the father is not permitted holidays or extended periods with Faith during which he can travel as the final order only allows for Faith to be in the father’s care a maximum of 3 consecutive overnights. 34.

Had the mother agreed to Faith travelling with her father in July 2018, an urgent motion would not have been necessary. As the mother opposed the order requested by the father, his urgent motion was bound to fail as the final order did not grant the father extended holiday access. Without the mother’s consent his motion could not succeed and was therefore dismissed. The father wished to travel with his daughter on vacation and his bringing a motion seeking an order permitting him to do so was not unreasonable. Father’s contempt motion of October 2018 35.

In October 2018, the father brought a contempt motion after he claims the mother refused to comply with the terms of the May 31, 2018 order. Faith had just begun attending school and paragraph 2(

c) of the order provides that once Faith begins school, the father shall pick up and drop Faith off at daycare or school. He says the mother refused to allow him to pick Faith up from school and insisted he pick her up from the mother’s home at 4:30 p.m. and therefore, was in contempt of the order. 36. The mother’s evidence is that the father’s contempt motion was dismissed because he was not being truthful when he claimed he was denied access as Faith was scheduled to be in her care on the day in question. She says that the father is irrational and acts contrary to the child’s best interests.

She describes the father as vindictive and says that he “creates a toxic environment for the child”.

37. On October 4, 2018, Justice Zisman dismissed the contempt motion and sent the parties to mediation “to clarify [the] access

schedule for rest of 2018 & 2019.” Justice Zisman further endorsed the record to clarify who has Faith in their care on holiday Mondays and school professional development (PD) days and that “Mother and Father have leave to bring MTC [motion to change] re clarification access schedule, summer holidays and travel.” 38. It is clear from Justice Zisman’s endorsement dated October 4, 2018, that there were genuine issues with respect to the father’s parenting time necessitating the referral to mediation and granting leave to either party to bring a Motion to Change. 39.

Justice Zisman’s endorsement makes it clear for this court that the father’s contempt motion, while not necessarily the appropriate approach to take to address the issues between the party, was not malicious or without merit. Otherwise, why would Justice Zisman have written an endorsement clarifying who has care of Faith on holiday Mondays and PD days?

In fact, the mother’s Motion to Change commenced shortly thereafter requested a change to the father’s alternate weekend access reducing it from Friday at 3:00 p.m. to Monday at 9:30 a.m. to Friday at 6:00 p.m. until Sunday at 6:00 p.m., which lends support to the father’s explanation for commencing the contempt motion. 40. It is therefore inaccurate to state, as the mother does, that the father’s contempt motion was dismissed because he was not being truthful about being denied access. The mother’s/father’s Motion to Change of October 2018 41.

As the mediation did not resolve the parties’ differences on the issues identified by Justice Zisman in her October 4, 2018 endorsement, the mother brought a Motion to Change in October 2018 seeking a change to the father’s alternate weekend access that would result in a reduction in his parenting time. The father responded to the Motion to Change with his own requests for orders granting extended and holiday access and permitting Faith to travel on vacation with him. 42.

On April 8, 2019, Justice Zisman heard the Motions and it is not disputed that the father was entirely successful and, as the mother says, he obtained everything he wanted. Conversely, the mother was not successful in obtaining the relief she requested in her Notice of Motion. 43. The April 8, 2019 order is a comprehensive order which addresses not just the father’s holiday and extended parenting time and right to travel with Faith, but also includes some other important clauses to help manage the parents’ behaviour and reduce the potential of subjecting Faith to conflict.

For example, the order sets out who shall be responsible for Faith’s care when she is ill on a Monday; that Faith shall have her health card with her when in the father’s care; that the father may attend Faith’s medical appointments and her school outside of his scheduled parenting time; and, that the mother shall not attend at Faith’s school during the father’s parenting time. 44. A review of the order of April 8, 2019 containing 41 paragraphs demonstrates on the face of the order that the father’s claims had merit and as the parties both testified, he was entirely successful.

Therefore, the father’s Motion to Change adjudicated on April 8, 2019 cannot be characterized as vindictive or malicious litigation. The current Application to revoke the change made to Faith’s surname 45. The father’s evidence is that historically the mother would threaten to change Faith’s last name when she was angry with the father but he did not believe she would go through with it.

For example, he provides an exchange of text messages between the parties from December 2018 in which the father strongly disagrees with directions given by the mother about how and when to return Faith’s clothing following a visit. In response to the father’s strong objections, the mother replies with the following four separate consecutive text messages without response from the father: “You are silly” “I will change Faith’s last name” “Keep coming at me”

“Keep on with what you wanna do. Disregard what I say, no problem. I don’t lose, like you do. See you in court my dear.” 46. The mother’s evidence is that the father was aware of her intention to change Faith’s last name since the summer of 2018. She says he never told her he was opposed to the change and she interpreted his failure to seek a court order prohibiting the name change when they were in court to mean he “did not have an issue” with it. She says she “had no reason to commit fraud to obtain the name change”. 47. The change to Faith’s surname was registered by the Registrar General on May 22, 2019.

The father’s unopposed evidence is that the he learned of the change to Faith’s surname on June 5, 2020 when the mother sent him a photo of the registration of the name change. During an exchange of text messages in which the mother was upset with the father for declining her request to change his parenting time, she sent him the photo with the following message: “Ok. When will you change. I truly feel sorry for you.” 48. The mother’s evidence that the father knew she wanted to change Faith’s surname and took no issue with her doing so, is not entirely supported by the evidence.

It is clear from the text messages that the mother lorded her ability to change Faith’s surname over the father. She reminded the father of her right, and even threatened to do so when she was upset with him or they were engaged in a dispute. There was no documentary evidence that contained a civil exchange between the parties about this issue. 49.

It is also noteworthy considering the mother’s evidence that she did not believe the father had an issue with her changing Faith’s surname, that when she sent the envelope to the father by registered mail, the parties were involved in litigation in this court with respect to the father’s holiday parenting time. She could have told the father or his lawyer that she was proceeding with the name change or hand delivered the envelope to him with the notice or to his lawyer but chose not to do so. The mother’s text messages to the father and what they reveal to the court 50.

On February 15, 2019, the mother sent the father a string of angry text messages because she was unhappy with his insistence on following the court order which allowed him to pick Faith up Thursday after school prior to a weekend she is in his care when Friday is a school PD day. When the father picked Faith up on the Thursday after school as provided for in Justice Zisman’s order of October 4, 2018, the mother called the father and insisted he return Faith to her care.

When he refused, the mother sent the father a flurry of emails in which she told the father that Faith will hate him, she will see him in court, and the following menacing text messages: “So I’m actually sitting back smiling.” “I can’t wait until you see what’s my next step. That’s why I don’t even bother stress. Enjoy your time.” Trust me when I tell you this, you will regret this! You have absolutely no idea! No fucking mercy” 51.

The text message in which the mother warns the father and invites him to anticipate her “next step” was sent a mere two weeks before the mother sent the father the registered envelope that she claims contained notice of the impending name change and the Application. 52. Despite the mother’s aggressive tone in her text messages, the father’s response was simple, straightforward and appropriate. He texted, “I messaged you on February 7 and told you the order stated it is my day to pick up Faith. I am following the order.” He also questioned the mother’s hyper belligerent text adding, “It’s my day.

I don’t know why you are acting like this?” 53. The next day the father sent the mother a message advising that Faith is doing well and the mother responded with a string of hateful text messages in which she tells the father “Faith isn’t happy. She was really looking forward to seeing Natalia and Jahdae’s [the mother’s other daughter] friends. But because you need your time, Faith is missing out. To do what? ( emphasis is mine ) She knows your fucked up”. The mother tells the father that Faith “belongs here with me” and “it’s time I start to really fight for her”. 54.

The text messages exchanged by the parties between February 14-15, 2019, highlight the mother’s undeniable hostile attitude towards the father and the insignificance she places on Faith’s relationship with him. The mother clearly exposes the lack of importance she places on Faith’s relationship with her father by texting, “Faith is missing out. To do what?” The mother considers Faith spending more time with her half-sister with whom she lives and sees daily, and her sister’s friends more important than the time she spends with her father on alternate weekends. 55.

In her evidence the mother attempted to justify the tone of her text messages by explaining that they were fueled by anger at the

father for not agreeing to change his access to allow Faith to attend a celebration for the mother’s and her other daughter’s birthday. She says that this is how she talks to the father when she is upset with him. 56. The mother was asked what she meant when she texted, “can’t wait until you see what’s my next step”. Her explanation was that her next step would be to make the father wait the next time he comes to pick up Faith because that will make him upset. 57.

This admission by the mother was revealing as she admits to retaliating against the father when she is angry with him regardless of the effect on Faith. While she did acknowledge that her behaviour was inappropriate her comment was received as insincere by the court. 58. The vitriol in the mother’s text messages cannot be explained away by anger or upset. The level of hostility in the mother’s text messages is unreasonable given the disagreement the parties were communicating about. Did the disagreement justify the level of animosity displayed in her text messages? I do not believe so. The mother’s conduct 59.

A review of the prior litigation involving the parties prior to the current Application provides significant evidence to bolster a finding that the mother is hostile towards the father and views Faith’s relationship with her father as insignificant. The following evidence demonstrates rigid and unreasonable conduct by the mother in her approach to dealing with the father and his claims for access to Faith: (

a) On June 29, 2017, the father was forced to obtain an order for substitutional service of his Application on the mother by ordinary mail as according to Justice Zisman’s endorsement of the same date, the mother would not open the door for the process server attempting to serve her with the father’s Application. As a result, the documents were left outside the door to the mother’s home. (

b) On September 7, 2017, as part of an access order in the father’s favour, Justice Zisman included a provision in the order for police assistance enforcing the access if necessary. (

c) On April 15, 2020, when the Ontario Court of Justice was only hearing urgent matters, Justice Zisman gave the father leave to bring an urgent motion as the mother was denying him access to Faith. (

d) On April 27, 2020, Justice Zisman heard the father’s urgent motion to address the mother’s denial of his access and in her endorsement made the following findings: (

i) This is a high conflict case. (ii) The mother relied on hospital records from Faith’s birth to justify suspending the father’s access during the Covid-19 pandemic despite Faith being six years old. (iii) “There have been historically other excuses and allegations that the mother has made with respect to restricting the father’s access.” (iv) The mother relied on the father taking Faith to the hospital years prior for breathing issues related to asthma to justify suspending his access. (

v) The father’s evidence on the issue of Faith’s health was preferred over that of the mother and her health was rejected as a reason for suspending access. (vi) Justice Zisman found that the mother did not provide a compelling reason to suspend the father’s access and concluded that a police enforcement order was necessary writing, “Given the mother’s actions to date I am concerned that she will not continuously abide by the outstanding orders with respect to the father’s access and that a police enforcement clause is necessary.” (

v) In what now looks to be a prescient moment, Justice Zisman wrote at paragraph 34 of her endorsement, “I strongly urge the mother to comply with this order so that it is not necessary for the police to attend and enforce the order. I trust that the mother will not wish to cause emotional distress to Faith by requiring the police to attend at the home to enforce this order. The

mother’s actions will be assessed at a future time and may impact on future decisions that this court is required to make .” (emphasis is mine). 60. The mother has a history of behaviour that supports a finding that she does not support Faith’s relationship with her father and has been obstructive in this regard. Another example of the mother belittling Faith’s relationship with her father was her evidence that she did nothing wrong by bringing Faith a hot lunch on days she was delivered to school by her father, replacing the cold lunch he sends her with.

She categorized the father’s criticism of her behaviour as his attempt to use the court order against her. She showed absolutely no insight into what message she is sending Faith by arriving at school and replacing the lunch her father made for her with one she made. The mother’s allegations that the father’s claim of fraud is fueled by vindictiveness 61. Given her conduct, I do not accept the mother’s allegations that the father is vindictive, hostile and creates a toxic environment for Faith to be credible. She is in fact hostile and her conduct has been vindictive.

The mother’s reaction to the father when she does not get her way is to engage in name calling and juvenile behaviour such as telling the father that Faith knows he is “fucked up” and that she will hate him. 62. The mother’s vindictive behaviour towards the father includes sending him a picture of the registration of the change of Faith’s surname almost a year after she obtained it and when she was angry with him. Clearly the mother notified the father in this manner believing it would upset him. 63. The mother provides no evidence to support her claim that the father is vindictive.

She characterizes the litigation commenced against her as vindictive yet this argument makes little sense considering he has been successful in court obtaining court orders addressing his access to Faith and specifically the April 8, 2019 order containing 41 paragraphs, which the mother says contains “everything he wanted”. 64. The evidence does not support the mother’s claim that the father is vindictive or that this Application was commenced by him for any reason other than his desire to maintain “Russell” as Faith’s surname. What can the court conclude from the father’s conduct? 65.

Unlike the mother, the father’s text messages do not contain offensive, threatening or insulting content. The court was not provided with a single text message sent to the mother by the father that is rude or even slightly inappropriate. 66. The mother included in her evidence copies of text messages exchanged by the parties in 2017 when the mother unilaterally reduced the father’s access to Faith from every weekend to every other weekend. In these text messages, the father maintains civility and his composure and asks how she can change a

schedule that has been in place for over a year without first consulting him. 67. Contrary to my findings about the mother’s litigation conduct, the father’s litigation conduct has been mostly reasonable. For example: (

a) In 2018 the father consented an order granting the mother custody of Faith and the authority to obtain government issued documents and travel with Faith without the father’s permission or signature on documents; (

b) The father did not engage in self-help measures to obtain additional parenting time when the mother refused to agree to extended or holiday visits nor did he do so when she unilaterally reduced his parenting time or would not agree to him travelling with Faith. He responded appropriately by retaining counsel to assist him and when that failed to resolve the issues, by bringing the matter to court; and, (

c) The father brought this Application as soon as he learned of the change made to Faith’s last name. Conclusion 68. Based on all the evidence summarized above, I find that the mother minimizes the importance of Faith’s relationship with her father as demonstrated by her behaviour in the years of litigation before this court. She clearly believes it is her right as Faith’s mother to make unilateral decisions that impact the father’s parenting time without consulting the father. For example, when she decided it no longer served her interests for Faith to spend every weekend with the father, she unilaterally changed the parenting schedule, which drastically

reduced the father’s parenting time and then criticized the father for commencing litigation. She saw absolutely nothing wrong with the approach she took in this instance and believes the sole cause of the litigation that ensued was the father’s refusal to see the importance of Faith being able to spend weekends with both parents. 69. When the father obtained court ordered access that the mother could not unilaterally alter or which the father would not agree to change, she sent angry, insulting text messages to the father denigrating him and his relationship with Faith.

She also sent text messages with veiled and direct threats to the father that he will regret the decisions he is making, including threats to change Faith’s surname. 70. The mother also withheld the father’s access to Faith or dictated when he could and could not pick Faith up from school as she saw fit, demonstrating her belief that she had absolute right to do as she pleases even in contravention of court orders. The mother’s evidence made it clear for the court that she believes she acts in Faith’s best interests while the father does not. 71.

The mother has also made her feelings about the father and his relationship with Faith abundantly clear by refusing to allow Faith to travel with him or spend holidays in his care without a court order. The court also had to intervene to address who was responsible for Faith’s care on holiday Mondays, when she is ill, and, on PD days. 72.

Despite Justice Zisman’s order of April 8, 2019, prohibiting her from attending at Faith’s school during the father’s parenting time, the mother gave evidence that there is nothing wrong with her going to Faith’s school to replace the lunch the father made for her with a lunch prepared by the mother. Despite this being an issue in previous litigation, she still fails to recognize that this is inappropriate behaviour as it sends Faith a negative message about her father. 73.

Justice Zisman found that the mother’s withholding of access was not reasonable, so much so that Justice Zisman made an order, not frequently granted, for police to assist the father in obtaining his access if such assistance was necessary. 74. The evidence supports the conclusion that it is the mother who is in fact vindictive, not the father. The mother admitted that when she is mad at the father, she retaliates by making him wait for Faith when he comes to pick her up. She says that she does this because she knows it upsets him. 75.

It is quite significant for the court that the mother, who claims that the father is not child focused, purposely upsets the father just before her daughter leaves to spend time with him. It is the mother’s behaviour and not the father’s that is not child focused. 76.

The court must decide whose evidence it prefers; the mother’s evidence that the envelope she sent the father by registered mail contained the notice of proposed name change and a copy of the Application; or, the father’s evidence that the mother sent him an envelope by registered mail, without a return address, that contained nothing but blank pieces of paper. 77. I believe the father and accept his version of events. I do not believe the mother and I reject her version of events. The following is a

summary of my findings to support this conclusion: (

a) The mother places very little importance on Faith’s relationship with her father. (

b) The mother has repeatedly interfered in Faith’s relationship with her father for no justifiable reason. (

c) As a result of the mother’s low opinion of Faith’s relationship with her father, he has had to come before the court on several occasions in order to obtain reasonable access enshrined in court orders so that the mother cannot unilaterally reduce his access. (

d) The mother has behaved extremely unreasonable in litigation before this court. (

e) The mother has been found to have unreasonably withheld access from the father on two occasions contrary to court orders, necessitating a police enforcement order.

(

f) When the mother is angry at the father for not agreeing to a request to change his access, she makes threats of retaliation including to change Faith’s last name. (

g) Two weeks before the mother sent the father the envelope by registered mail, the mother told the father via text message that she cannot wait for him to see her next step and that he will regret not agreeing to her requested change to his access. (

h) The mother has behaved vindictively towards the father and displayed a level of anger towards the father in text messages that seems grossly disproportionate to the dispute or difference of opinion they were having at the time. (

i) The father has commenced litigation for legitimate reasons. His Applications and Motions to Change were not frivolous and resulted in court orders that increased or protected his access to Faith. He never engaged in self-help measures. He used the court system appropriately. (

j) The father does not display the level of anger or disrespect in his communications with the mother that is seen in the mother’s text messages to the father. (

k) I do not believe that after coming before the court on several occasions to address issues he had with the mother and access to Faith between 2015 and 2019, both with and without counsel, the father would obtain notice of the mother’s intention to change Faith’s surname and do nothing, allow the change to be made and then a year later bring an Application to revoke the change on the basis that he did not receive required notice of the change. 78. A consideration of all of the evidence leads to two possible conclusions: 1.

The mother sent the father blank pieces of paper in the registered envelope by accident; or, 2. The mother sent the father blank pieces of paper in the registered envelope on purpose. 79. It does not make sense that the mother sent the blank paper by accident as she did not give that evidence. Therefore, I find that a consideration of all of the evidence together supports a finding on a reasonable balance of probabilities, that the mother intentionally sent the father an envelope by registered mail that contained blank pieces of paper and no return address. 80.

I find that the evidence supports a conclusion on a balance of probabilities that the mother did not notify the father of the name change Application she intended to file with the Registrar General to change Faith’s surname 30 days before doing so out of anger towards and disrespect of the father and his relationship with Faith and in retaliation for what she found to be unacceptable decisions by him refusing to agree to changes she requested to the parenting schedule. I specifically find that there is an abundance of cogent evidence to support a finding of fraud. 81.

As a result of the mother’s failure to properly notify the father of the proposed name change, there will be a finding that the mother obtained the change of Faith’s surname by fraud as she failed to comply with subsections 5(6) and 6(7)(

a) of the Act that require her to send notice and a copy of the name change application to the father by registered or certified mail at least 30 days before filing the Application. Order to go as follows: 82. The change of Faith Alaysha Russell’s surname from “Russell” to “Thompson” by way of registration number 2019-05-006156 on May 22, 2019 is revoked. 83. The court shall send a certified copy of this order to the Registrar General. Costs 84.

If the father is seeking an order for costs of this Application, he shall serve and file his costs submissions with a Bill of Costs on the mother within 20 days of the date of this Judgment. The cost submissions shall not be more than 5 pages long not including attachments. 85. The mother shall have 20 days to serve her response on the father. The responding cost submissions shall not exceed 5 pages not including attachments.

86. The parties shall file their cost submissions with the trial coordinator by email to the following email address. Released: January 12, 2021 ____________________________ Signed: Justice Melanie Sager [1] C. (

R) v. McDougall, 2008 SCC 53 at para. 40 . Combined Air Mechanical Services Inc. v Flesch , 2014 SCC 8 , para. 21 . [2] Combined Air Mechanical Services Inc. v Flesch , 2014 SCC 8 , para. 21 .