ONTARIO COURT OF JUSTICE
BETWEEN:
C.L.
Applicant
— AND —
P.S.
Respondent
Before Justice A.W.J. Sullivan
Heard on Sept 10 and 13 to 17, 2021
Reasons for Judgment released on October 25, 2021
C.L. ............................................................................................................... on his own behalf
Ms. C. Pon counsel for the respondent P.S.
1This is a decision from a 6-day in person trial heard between September 10 to September 17, 2021. Some witnesses appeared via Zoom as did on occasion an English/French and a Mandarin/English interpreter, otherwise the interpreters work with the parties in the courtroom.
2The trial was a bilingual French/English trial with Cambodian interpretation as well.
3The resolution of this litigation for this family is long overdue.
4Mr. C.L. commenced an Application in July 2017.
5This trial was about the decision-making/parenting time/child support regarding his daughter J.L., born […], 2015, and issues of a restraining order and terms of international travel.
6Mr. C.L. resides in Montreal with his extended family. He is 48 years old and trained as an engineer.
7Ms. S. is 41 and a stay-at-home mother to J.L. They reside in Toronto.
8In Mr. C.L.’s application he requests Joint decision-making with his daughter’s primary residence to be with him in Montreal. In the alternative, parenting time both here in Toronto and in Montreal. It should be noted that his application was started when he lived in Toronto and does not have the request for his daughter to reside with him in Montreal. He made this request at trial when I asked him what order he was seeking.
9Ms. S. seeks sole decision-making with J.L.’s primary residence with her and a fixed schedule of parenting time for Mr. C.L. here in Toronto and child support. She also seeks a restraining order and terms for international travel.
Background Facts
10The parties met in Cambodia in 2011 where Ms. S. was living.
11Ms. S. still has her extended family in Cambodia.
12Mr. C.L., who is also Cambodian, was visiting, on vacation from Montreal where he lived. He is a Canadian citizen.
13The parties married on August 16, 2012, and Mr. C.L. sponsored Ms. S. who arrived in Canada on May 9, 2014.
14The parties lived in Montreal sharing a home with Mr. C.L.’s mother. Their daughter J.L. was born in Montreal on […], 2015.
15While in Montreal Ms. S. began to take language programs to settle in Canada. The programs were in French.
16In Montreal Mr. C.L. was employed as an Engineer for Geneq Inc.
17Ms. S. found some employment in a retail store.
18In April 2016 the parties separated. Ms. S. accused Mr. C.L. of assaulting her. Mr. C.L. was charged.
19At the time Ms. S. and their daughter went to a local shelter.
20The parties attended Family Court in July 2016 and entered a “consentement sur mesures interimaires” (a temporary consent). This was before the Cour Superieure (Chambre de la famille). This was a consent order regarding terms of separation. Ms. S. was granted custody and child support and Mr. C.L. was granted access to J.L.
21Shortly after the above court proceedings the parties reconciled.
22Mr. C.L.’s criminal charges were withdrawn.
23In December 2016 the parties moved with their daughter to Toronto. Their reasons and history for this move and subsequent difficulties in Toronto differ at this point in the testimony I heard, although all agree that they took up residence in an apartment in the Chalkfarm neighborhood of Toronto.
Significant Litigation Orders
24In July 2017 the parties on consent agreed to J.L. remaining in Ms. S.’s custody (decision-making and in her primary residence with day access with Mr. C.L.) For a while in July/August 2018 this was suspended and reinstated on October 25, 2018, with access from Saturday at 10:00 a.m. to Sunday at 4:00 p.m. and Mr. C.L. was restrained from approaching Ms. S. or her home and pick-up and return of J.L. was via Access for Parents and Children in Ontario.
25On March 26, 2021 Justice Sirivar struck Mr. C.L.’s pleadings in relation to child support for lack of disclosure.
Mr. C.L.’s Main Testimony
26Mr. C.L. explained that when the family moved to Toronto, he gave up a good job in Montreal. He claimed the move was to assist Ms. S. who was struggling in Montreal with no job and difficulties with both the French and English languages.
27Their financial situation in Toronto was difficult. They had no jobs, no OHIP, and little belongings. I heard they went through some savings and I also heard of money being transferred to Ms. S.’s family.
28I heard from Mr. C.L. of some $10,000 of his savings being transferred by Ms. S. to her family prior to their leaving Montreal for Toronto.
29Ms. S.’s version of events surrounding this transfer was different from Mr. C.L. She testified that this was a form of security for her that Mr. C.L. would change his ways and not be aggressive with her and that if he misbehaved, he would forfeit the money being held by her family.
30To this trial this issue was an ongoing issue between the parties. Mr. C.L. states the money was somehow transferred without his consent. Ms. S. denies this, however, both seem to agree the funds are with a third party.
31Mr. C.L. testified that in the spring of 2017 while living in Toronto they were visited by workers from the Toronto Children’s Aid Society who assisted the family with ideas for work and connected them to community services including a proper bed for their daughter as she did not have one at this time.
32I also heard that the family was paying a local woman to care for their daughter in a home run unlicensed daycare. This was another stressor for the family as they had no government assistance.
33Apparently, Ms. S. had found some part-time minimum wage work in a few nail salons. It was not made clear to me why the family did not apply for social assistance although there was mention of having to wait for OHIP and other services given their recent move from Quebec.
34Mr. C.L. testified that he spoke to the CAS worker about wanting the family to return to Montreal where he could find work, and this would relieve the family of the stress they were experiencing. At trial he felt that as he spoke of this to the worker some years back that this somehow was significant at this time.
35I heard that on May 19, 2017, Mr. C.L. returned home from shopping to find Ms. S. and his daughter gone. He was eventually contacted by her that she had left and was in a family shelter in Toronto.
36Mr. C.L. testified that this he did not see coming as just days before his wife had purchased cakes to celebrate both his birthday and their anniversary. This he explained showed that things were happy at home but for the economic stress they were experiencing that could have been resolved with their return to Montreal.
37He testified that it was Ms. S. who refused to return to Montreal and accused her of planning on leaving him to obtain Government assistance and subsidized daycare.
38Both parents call the CAS workers that assisted them back in 2017. The worker’s testimony is reviewed below.
39Mr. C.L. did so to bolster his position at trial that it was Ms. S. who refused what he considered to be a reasonable position and return to Montreal as a family given their difficult and modest living conditions.
40Mr. C.L. testified that he was shocked to learn that Ms. S. had left. He was certain that she had pre-planned this with the aid of some shelter service.
41He testified that he began calling about and tried to connect with Ms. S. on social media as he was her immigration sponsor. He added that he felt some liability and exposure given this and also that in the past he had to warn Ms. S. that she needed to declare any work income she made as, according to him, she had suggested to hide income she made from her temporary work in a nail spa.
42Mr. C.L. testified and repeated on several occasions that he came to Toronto to do what was best for his family and there was no reason for Ms. S. to separate but for her plan to live off social assistance and that Ms. S.’s claims of violence or threats from him towards her are unfounded and false.
43He testified that although police had intervened no charges have been laid against him and he refuses to be cast in this poor light.
44Mr. C.L. was also not shy to state on several occasions at trial how the court system and family lawyers have made it difficult for him as a father to have a relationship with his daughter.
45Mr. C.L. repeated that if Ms. S. portrayed herself as a victim this Government assistance would be provided and that in contrast, he had stronger family values than Ms. S. and her underhanded manners.
46Mr. C.L. testified that after separation he tried looking for work in Toronto but found only minor employment in fast food shops causing him to rethink his plans.
47He stated that eventually he left Toronto and returned to Montreal as this was the best plan for his daughter. He testified that he never wanted to leave Montreal to start with but did so to appease Ms. S. It was Ms. S. who was not happy in Montreal due to her inability to integrate into the community and it was her ill thought out plan to move to Toronto that split up the family.
48Mr. C.L. provided several photos that were entered into evidence that he took of his daughter during his parenting time with her in and around Toronto. These show his daughter enjoying this time with him at the beach, going tubing in the winter, trick or treating at Halloween and picking seasonal fruit at a local farm.
49At trial Ms. S. generally agreed that J.L. enjoyed her time with her father and the gifts she received during visits.
50Ms. S.’s main complaint of Mr. C.L.’s parenting was that their daughter seemed to be hungry at the end of visits as she is returned not having had lunch.
51Mr. C.L. spoke of his care for his daughter and that he often left her with food at the end of the visits to bring home.
52He has had overnight visits here in Toronto and has stayed in modest accommodations in family shelters operated by the city of Toronto and at times a Temple that he visits with her on weekends.
53He finds the trips to Toronto taxing on his time with his daughter as well as his resources for transportation which appeared to be by train mainly.
54In some of the photos Mr. C.L. presented show Ms. S. was present. I learned later these were taken either when his daughter was being returned or when apparently Mr. C.L. appeared at the same location as Ms. S. in particular a Buddhist Temple that the Cambodian community in Ontario attend. Initially Mr. C.L. presented these photos and wanted them entered into evidence that they show Ms. S. is not afraid of him as she claims in her pleadings and that this is a story made up for her to gain sympathy from the court and the system.
55Mr. C.L. was cross-examined about his showing up unannounced either in the community or at Ms. S.’s home which he denied doing. This was the topic of Ms. S.’s request for a restraining order.
56Several police occurrence reports were filed by Ms. S. at trial which indicate her complaining about Mr. S. following her and/or being around her apartments. Because of this she testified that she has moved at least two times. No charges were laid from these complaints and I cannot rely on these police occurrence reports to positively find that Mr. C.L. was stalking Ms. S. without other evidence.
57I heard that Mr. C.L. had overnight visits with J.L. here in Toronto from about October 2018 to about April 2020 before the pandemic. This is pursuant to a court order. The pick-up and drop-off were eventually transferred to Access for Parents and Children in Ontario (APCO).
58From the summer 2020 to present, he and his daughter have had video parenting time and Mr. C.L. provided photos of these during which time he has assisted his daughter with schoolwork. Mr. C.L. is not content with his daughter’s school progress in Junior Kindergarten. She has just commenced grade 1 this September 2021.
59Mr. C.L. testified that he is better placed to care and provide for his daughter than Ms. S. This he states is because Ms. S. is on social assistance and has limited language skills.
60He also testified to having strong family values. This last point he repeated often as a theme in his testimony with some general definition provided. His plan is to care for his daughter in Montreal where he lives with his mother and has the support of extended family and the Cambodian community there.
61Here he testified that he is well-connected to the Quebec culture and speaks French and has job prospects. Mr. C.L. suggested to the court that as Ms. S.’s English language skills are poor this impacts on her ability to care for his daughter. He testified that an example of this was that his daughter received two vaccinations a few years back. This he suggested was because Ms. S. could not explain herself properly to a doctor.
62I did not receive any evidence from a doctor about this, however, in cross-examination Mr. C.L. was questioned about this incident being explained as the doctor making an error. He replied that this was in part the reason but maintained his position that Ms. S.’s weak language comprehension played a role in this.
63Mr. C.L. did produce a job letter indicating he was employed in Montreal for about 1.5 years earning about $60,000.
64I heard testimony from Ms. S. that the letter was the first disclosure that she had received from Mr. C.L. regarding his ability to pay child support.
65Mr. C.L. stated that he was now working for another company in his field as an engineer that produces car windshield fluids. He is earning about $33,000 per year although this is not full-time.
Ms. S.’s Main Evidence
66Ms. S. explained how she came to Canada and was happy for her future.
67She wanted to make a life here as Mr. C.L,’s wife but realized that he had a controlling and violent behaviour. This increased after J.L.’s birth. He demanded to know all her social media passwords and was angry at her when she called her father.
68She separated from Mr. C.L. in Montreal in April 2016 because of his assault of her causing her injuries. She went to a shelter and saw a doctor because of injuries to her.
69She asked the police not to charge him, but he was charged. She eventually requested that the charges be withdrawn as she wanted to move to Toronto to start over and testified that she was concerned how this would impact on Mr. C.L.’s job prospects.
70She did reconcile as explained above and asked to move to Toronto where she felt they had greater prospects for them both.
71She also was not happy with them living with Mr. C.L.’s mother who she believed was not that supportive of her.
72Contrary to Mr. C.L.’s statement, they both agreed that the move to Toronto would be best for them and their daughter in the long run.
73Here their relationship did not improve. Mr. C.L. was angry with her for their meagre living situation and lack of work.
74She had found some part-time work at a nail spa, but this did not assist them much.
75Ms. S. testified that Mr. C.L. continued in his controlling ways, demanding to know who she was calling on her cellphone when she phoned her family in Cambodia and demanding to search her social media postings. This led to several arguments during which he broke her cellphone. This repeated itself on several occasions. Ms. S. reported this to the police but feared laying charges as Mr. C.L. was looking for work and all she wanted was that he stopped this behaviour.
76Things did not improve and in May 2017 Mr. C.L. removed Ms. S.’s important documents and hid them and that led to further arguments. Ms. S. further claims this escalated such that during a telephone call in mid-May 2017 that Mr. C.L. had with his family members who had called asking him if he had found employment that he became angry at her and threatened to kill her and take their daughter to Montreal and give her to his mother.
77It was within days that Ms. S. left their Chalkfarm apartment and lived separate from Mr. C.L. ever since caring for J.L.
78Ms. S. testified that despite this Mr. C.L. continues to harass her in the community mainly using times around his parenting visits to do this. Ms. S. gave the following list of examples in which she claims this was happening over several years.
79The parenting time between Mr. C.L. and J.L. was initially on consent dated July 24, 2017. Fridays from 11:00 a.m. to 6:00 p.m. and Saturdays 10:00 a.m. to 1:00 p.m. with some pick-ups at the child’s daycare “Sandbox” and the Scarborough Town Centre. In July 2018 the father became aggressive with daycare staff arguing with them and refusing to pay about $52 he was ordered to pay towards the subsidized daycare fee as he was seeking visits on Fridays during the day and the child’s subsidy was impacted.
80I was provided evidence of this being part of a subject of a motion to enforce as Mr. C.L. was refusing to pay this fee.
81At this trial he testified against having to do so then and now.
82In July 2018 Ms. S. was informed of threats Mr. C.L. was making towards her and sought a restraining order that she was granted with access exchanges to be via Access for Parents and Children in Ontario (APCO).
83Before this, exchanges between the parents at the end of visits were happening at the Scarborough Town Centre.
84It was during these exchanges that Mr. C.L. followed Ms. S. in the Centre while she sat eating with her daughter and into the TTC subway. He also began going to her apartment building and her ESL classes speaking to others about her. These events spanned the time of October 2017 to December 2017.
85Ms. S. testified that on the December 9th exchange, Mr. C.L. angrily knocked the stroller during the exchange causing an abrasion to her hand. She took a photo of this and it was entered into evidence, Exhibit 12 at trial.
86Ms. S. testified that it was during this time that Mr. C.L. took photos of her that he entered into evidence at trial attempting to claim that she was not afraid of him and that the three of them had done things together as a family. The photos he took were when he followed her about in the mall or at the Temple where he showed up unannounced.
87Ms. S. testified that on April 12, 2018, Mr. C.L. appeared on a Thursday at the Cedarbrae Library in Scarborough where she had gone to obtain info on the drivers’ test. She refused to talk with him, and he proceeded to follow her to J.L.’s daycare that is close by. Given this she entered a police station and he went in as well. A police incident report from this was entered as Exhibit 20.
88Ms. S. testified that given this she moved and within four months Mr. C.L. was at her ESL class and at her new home.
89Mr. C.L. at trial did not deny his presence at these locations and claimed it was his right to be in public spaces and when at Ms. S.’s apartment it was to inspect his daughter’s living conditions.
90The above led to Mr. C.L.’s visits being suspended by the Court. When they were reinstated in the September 14, 2018 order, the visits were every other weekend, with the exchanges at J.L.’s daycare. It was at this time that despite this order Mr. C.L. took his daughter twice from her daycare not on his assigned weekends requiring police intervention.
91Mr. C.L. was charged with threats against Ms. S. in June 2018 and ordered not to communicate directly with Ms. S. Mr. C.L. had the bail conditions varied to have communication pursuant to a Family Court Order and after this proceeded to communicate directly again with Ms. S. going to her home and claiming this was permitted by the Family Court Order, when it was not.
92Eventually a motion was organized and in October 2018 the Court granted Ms. S. a Temporary Restraining Order and shortly after this Mr. C.L. left Toronto and took up residence in Montreal.
93Ms. S. testified that in May 2019 she again saw Mr. C.L. outside her apartment door asking to see his daughter. She did not open her door and later found the door lock jammed and inoperable.
94With the onset of the pandemic, visits moved to virtual visits that Ms. S. facilitated between Mr. C.L. and J.L.
95Here also I heard of Mr. C.L. calling 911 on Ms. S. when he insisted that his daughter use the school tablet to video chat with him instead of her mother’s phone which at times is not charged as it should and falters. This annoyed Mr. C.L. and he admitted calling 911 regarding this issue.
Ms. S.’s plan for J.L.
96Ms. S. proposes to continue to live with J.L. in Toronto.
97J.L. has started to attend Grade 1 and is happy being in class. She attends Blake Public School and is in French immersion. She is on the waiting list for pre-and after-school care.
98She is a healthy child with no medical issues.
99Ms. S. intends to remain home caring for her until J.L. is older at which time Ms. S. would like to begin working. She explained when questioned by Mr. C.L. how she tried her best to be a good wife to him and as well integrate into Canadian society.
100She explained her role in the household and care she gave to their daughter and agreed at times the maternal grandmother and Mr. C.L. shared in these duties with her but not exclusively.
101Ms. S. stated she was raised by caring parents and was not physically disciplined. She recalls how it felt when Mr. C.L. hit her as she never experienced or witnessed this aggression growing up.
102She denied Mr. C.L.’s statement that her goal was to gain permanent residence and collect welfare. She indicated she sacrificed to come here having left behind all her family and culture to be a wife to Mr. C.L. She indicated that she thought Mr. C.L. had positive traits such as his education and work ethic to provide for the family.
103She agreed that Mr. C.L. helped her look for work and drove her at times to work both in Toronto and Montreal, although she recalled her spa job in Toronto required her to take public transport some 8 hours per day and at the time was paid in bus fare as she was being trained on the job.
104She agreed with Mr. C.L. that they had little when they arrived in Toronto and that this caused him to be stressed but was no excuse for his aggressive behaviour that caused her to leave.
105She denied Mr. C.L.’s assertion that she refused to listen to the advice of others to return to Montreal and that their plan to move to Toronto was ill-conceived.
106Ms. S. was cross-examined by Mr. C.L. about the several incidents of violence between them and her allegations of his following her. During these exchanges in Mr. C.L.’s questions it was apparent he was present when he should not have been but wanted Ms. S. to somehow agree with him that he had the right to be present to check on his daughter’s well-being.
107Ms. S. admitted to momentarily not keeping an eye on her daughter while she was an infant that caused her to fall on the floor.
108Both parties called a few witnesses to provide general evidence of their character.
109Mr. C.L. called a long-standing community friend Mr. Sokkaly and his mother.
110Both provided kind words about Mr. C.L. and his ability to care for J.L. They were asked to comment about Ms. S. and Ms. Mouy Keang had a few pointed comments but did not add significantly to the main evidence of both parents. She did mention the incident that J.L. fell from a changing area while being cared for by her mother and that on this occasion Ms. S. did not listen to the advice given to use a safer spot. Ms. S. did not deny this event and recognized the need to be vigilant regarding the care of her daughter.
111Similarly, Ms. S. called her neighbour Ms. Xiao Huh who commented in general on Ms. S.’s care for J.L. and their connection in the community and mutual support as mothers to children of similar ages.
112Two Toronto CAS workers were called in this trial. One each by the parents. These were Ms. Parisheva-Fort and Mr. Joseph.
113Ms. Parisheva-Fort was involved with the family before and after their separation in May 2017. She provided the family with a support letter to gain community services.
114Ms. Parisheva-Fort did confirm the TCAS efforts to work with the family around issues that caused them stress, little income, no employment, cultural and language hurdles.
115I found Ms. Parisheva-Fort to be a professional witness, she was balanced and fair in her testimony. She agreed with Mr. C.L. regarding the stresses faced by the family; little furniture, no work, little income, no family supports, and paying for daycare.
116She did agree that she recalled he wanted to return to Montreal. She did not agree with him when he asked if in her work with the family if she confirmed that he ever mistreated his wife in Toronto.
117Ms. Parisheva-Fort went on to state that based on her work with the family and years of experience, when she met with Ms. S. it was clear to her that Ms. S. when speaking of her marriage was explaining, “her experienced fear of Mr. C.L.”
118The other Toronto CAS worker was Mr. J. Joseph. He testified that he became involved with the family in April 2018 after the family had separated. I found his testimony to be professional, fair, and balanced.
119His notes indicate that the Toronto Police had made a referral to TCAS as the police have been involved with the family and attended regarding complaints regarding domestic issues between the separated parents with Ms. S. not wanting to have the father charged.
120When he met with Ms. S., she spoke of the assaults she experienced by Mr. C.L. during the relationship.
121She spoke of difficulties surrounding the visits that Mr. C.L. was having with their daughter that she supported but not his following her.
122He spoke to Mr. C.L. at the time who voiced his frustration with the court system and community supports to Ms. S. He was frustrated that there was not more emphasis to reconcile. He complained that Ms. S. could not care for his daughter as she did not know English and was receiving social services and had no family in Toronto as opposed to his supports in Montreal.
123Mr. Joseph testified that he had witnessed mother and child at the CAS office and J.L. was very comfortable with her mother.
124Mr. Joseph did underline a concerning text message that he received from Mr. C.L. in which he stated… “he felt crazy and dangerous.” Mr. Joseph did process this message with Mr. C.L. who stated that he meant no harm to himself or others and suggested his comments were like a dog barking but not biting. Mr. Joseph testified that Mr. C.L. downplayed his actions and words and continued to voice frustration with the system.
125Mr. Joseph also noted a call from Mr. C.L. on August 21, 2018, stating that he had been to the mother’s home and she had no bed for their daughter and that the distance to the child’s daycare from the mother’s home was too far.
126Mr. Joseph agreed that the CAS had no protection concerns and after a review of his work with the family with his supervisor the file was closed.
127Regarding Mr. C.L.’s income for monthly child support, Mr. C.L.’s pleadings were struck on this issue as per Justice Sirivar’s order dated March 26, 2021.
128However, Mr. C.L. in this trial did assist by presenting a job letter from an employer that he worked for just prior to the pandemic that placed his salary at $60,000. Exhibit 11. He also testified that he currently works for a company that produces car/truck window liquid and works part-time for about 30 hours per week at $30 per hour placing his potential yearly salary at about $43,000.
129With Mr. C.L.’s pleadings regarding his financial situation struck for lack of disclosure he has left himself exposed to having his income imputed. He ignored his duty towards this basic disclosure that is expected of parents:
See:
Simply stated, disclosure is the linchpin on which fair child support depends and the relevant legal tests must encourage the timely provision of necessary information. See: Colucci v. Colucci, 2021 SCC 24 - par.
Roberts v. Roberts, 2015 ONCA 450, at paras. 36-37:
The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing.
Failure to abide by this fundamental principle impedes the progress of the action, causes delay, and generally acts to the disadvantage of the opposite party. It also impacts on the administration of Justice. Unnecessary judicial time is spent, and the final adjudication is stalled.
Financial disclosure is automatic. It should not require court orders – let alone three – to obtain production.
130Although his pleadings were struck, I believe I should consider the above evidence which is in line with the amount that Ms. S. argues that I should impute to Mr. C.L at about $60,000. I also find that based on Mr. C.L.’s job letter that he did not disclose until the trial that his child support obligation based on income of about $50,000 should commence a month after he started this work, June 1, 2019. This will no doubt cause Mr. C.L to owe considerably greater arrears in monthly child support than the outdated director’s statement filed at trial. (The $50,000 is a number slightly lower than what he earned in 2019 and slightly greater than his current employment of $43,000).
131In my order below I have also set a modest amount that Mr. C.L must pay monthly towards these arrears in addition to the ongoing monthly child support. He knew his income during this litigation. He did not disclose his true income. Support is owed to his daughter. It is ironic that at trial he complained that Ms. S. supports their daughter on social assistance when it was in his ability to provide extra money to assist his daughter.
132Vanos v. Vanos, 2010 ONCA 876: When calculating prospective child support, income from the previous year is used to calculate future support, essentially as a matter of convenience, because actual income for the upcoming year is incapable of exact determination. However, where, as here, the actual amount of income earned in a prior year is known, it is that amount that should determine the quantum of support that should have been paid. Also see: Wright v. Christie, 2011 ONCJL 109.
Discussion and Decision
133As noted above Mr. C.L. seeks a joint decision-making order regarding his daughter’s needs with Ms. S.
134The law in this regard is set out below and well decided:
Legal Considerations for Decision-making Responsibility
The Ontario Court of Appeal in Kaplanis v. Kaplanis 2005 1625 (ON CA), [2005] O.J. No. 275 sets out the following principles in determining whether a joint custody (decision-making responsibility) order is appropriate:
There must be evidence of historical communication between the parents and appropriate communication between them.
It can’t be ordered in the hope that it will improve their communication.
Just because both parents are fit does not mean that joint custody should be ordered.
The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
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.
The younger the child, the more important communication is.
Mutual trust and respect are basic elements for a joint decision-making responsibility order to work effectively. See: G.T.C. v. S.M.G., 2020 ONCJL 511.
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. See: Griffiths v. Griffiths 2005 ONCJ 235, 2005 ONCJL 235, 2005 CarswellOnt 3209 (OCJL). 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. See: Warcop v. Warcop, 2009 6423 (ON S.C.).
Financially supporting one’s children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint decision-making responsibility order as it demonstrates poor Judgment and an inability to prioritize the child’s interests. Jama v. Mohamed, [2015] ONCJL 619.
In S.S. v. S.K., 2013 ONCJL 432, this court wrote that courts should assess the dynamics of a family when determining if a joint decision-making responsibility order is appropriate. Particularly, the court should examine if the granting of such an order is:
a) more or less likely to de-escalate or inflame the parents' conflict;
b) more or less likely to expose the child to parental conflict; and,
c) whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders for the purpose of asserting control over their former spouse and children, tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a joint custody 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.
Ultimately, the court must determine if a joint decision-making responsibility order, or an order allocating any decision-making responsibility between the parties, is in the child’s best interests.
Analysis
135In this matter there is not the basis of trust that would support a joint decision-making responsibility order.
136I find that Mr. C.L. is not prepared to accept that Ms. S. separated from him, twice, because of his behaviour. He did provide the court with two certificates of some general counselling that he took after the parties separated in Toronto. I am uncertain what he gained from these as he was not prepared to accept any responsibility for the difficulties in the relationship and was adamant at trial that he had “family values” that made him the better parent to raise J.L.
137His view of Ms. S.’s parenting ability is poor. He puts her down in terms of her ability to operate in the community and care for J.L.
138He suggests that Ms. S. planned the separation from the get-go and all that she really wanted was to gain status in Canada and be supported by the Government.
139At trial he argued that any events in Montreal before they moved to Toronto should be ignored by this court.
140He argued that Ms. S. has fabricated abuse by him to gain sympathy from the court and that she used his sponsorship to gain status in Canada and Government support.
141I find the evidence does not support this theory. Ms. S. testified that upon leaving Cambodia she gave up her family and culture and had wanted to begin her life as Mr. C.L.’s wife.
142Although new here she explained that she worked at integrating into her new environment living with her mother-in-law and assisted at home while her husband worked.
143She explained how she was happy when their daughter was born.
144She explained that she separated in Montreal after Mr. C.L.’s aggression escalated to an assault. At this point she took steps for herself and child, calling the police who laid charges based on their investigation. She also obtained a Temporary Court order on Consent.
145If she had planned to take advantage of Mr. C.L. from the start as he has argued, this would have been the time to do so. Yet this is not what Ms. S. did. Instead the parties reconciled. Ms. S. testified that she wanted to try to be the best partner she could to Mr. C.L., caring for him when he was ill, cook meals for the household and assist her mother-in-law.
146Ms. S. testified that she did not want her husband to have a criminal conviction that might hurt his job prospects and she reconciled with him. At this point she asked if they could move to Toronto. This would in her eyes provide greater options to them as a young couple to look for employment and give them a new start.
147Ms. S. testified that things between them were not always negative and that she wanted to raise a family with Mr. C.L. and be happy. She praised him for his work ethic and his ability to support the family. She recognized how difficult it was for them to have little here in Toronto with no work when they arrived.
148I accept Ms. S.’s version of events that after setting themselves up here in Toronto Mr. C.L. continued with his controlling ways monitoring Ms. S.’s social media and calls to her family in Cambodia and was threating.
149Ms. S. claims that she overheard Mr. C.L. tell his mother that he will kill her and then have his daughter raised by the grandmother. This she indicates occurred when while in a car (taxi) he received a call from Montreal asking if he had found work.
150Based on this evidence I cannot make a finding that Mr. C.L. made this threat.
151She admitted to struggling to integrate into Quebec society with the French language and agreed that her mother-in-law assisted them at times in picking up their daughter from daycare at times.
152Ms. S. explained that she was taken aback with Mr. C.L.’s physical aggression and threats to her as she was raised in a family that did not use physical discipline to her as a child. She seeks a continuation of the current Temporary Restraining Order against Mr. C.L.
The Law
Section 35 of the Act states:
Restraining Order
35 (1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 15.
Provisions of Order
(2) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:
Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.
Restraining the respondent from coming within a specified distance of one or more locations.
Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
Any other provision that the court considers appropriate. 2009, c. 11, s. 15.
153Justice R. Spence in the case of Proevski v. Roffel 2020 ONCJL 310 at paragraph 28 of his decision reviewed some of the leading criteria that a court should consider when a restraining order is requested which I adopt in this matter.
28The case of E.O. v. O.E., [2019] O.J. No 6705 is a decision of Justice S.E.J. Paull. In his reasons for judgment, Justice Paull neatly summarizes the principles that various courts have set out and which can assist courts in deciding whether to make an order under section 35 of the Act.
29Beginning at paragraph 109, Justice Paull states [my emphasis]:
- The legal principles for the court to apply are as follows:
a. Restraining orders are serious and should not be ordered unless a clear case has been made out. Ciffolillo v. Niewelglowski, 2007 ONCJL 469.
b. A restraining order is serious, with criminal consequences if there is a breach. It will also likely appear if prospective employers conduct a criminal record (CPIC) search. This could adversely affect a person's ability to work. F.K. v. M.C., 2017 ONCJL 181.
c. Before the court can grant a restraining order, it must be satisfied that there are "reasonable grounds for the person to fear for his or her own safety or for the safety of their child. McCall v. Res, 2013 ONCJL 254.
d. The person's fear may be entirely subjective so long as it is legitimate. Fuda v. Fuda, 2011 ONSC 154, 2011 CarswellOnt 146 (Ont. SCJL); McCall v. Res, supra.
e. A person's subjective fear can extend to both the person's physical safety and psychological safety. Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.).
f. It is not necessary for a respondent to have committed an act, gesture, or words of harassment, to Justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. Fuda v. Fuda, supra.
g. A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. Purewal v. Purewal, 2004 ONCJL 195.
h. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent's actions or words. A court must be able to connect or associate a respondent's actions or words with an applicant's fears. Fuda v. Fuda, supra.
i. Courts should have regard for the passage of time. Events that once triggered a temporary restraining order may not be so compelling on the issue of a permanent order. D.C. v. M.T.C., 2015 ONCJL 242.
j. In borderline cases, the court must consider what other protections may be available if a restraining order is not granted. D.C. v. M.T.C., supra.
k. It is appropriate, in borderline cases, to consider the balancing prejudice to the respondent, if the restraining order is granted. D.C. v. M.T.C., supra.
m. Further, the court should be alert to the fact that parties may improve their behaviour when the eyes of the court are on them. This might not continue once the case ends. F.K. v. M.C., supra.
154The evidence taken supports Ms. S.’s fear of Mr. C.L.’s stalking behaviour towards her both before and after a Restraining Order was made against him.
155The CAS worker Mr. Joseph reported that Mr. C.L. called on August 21, 2018, complaining to CAS that he had seen where his daughter was living with Ms. S. and that he disapproved. This was some 1 year and 3 months after the parties had separated and had a court order in place.
156Mr. Joseph testified that Mr. C.L. had repeatedly informed him when they spoke of how he felt the system was unfair to him. He seems to be willing to ignore court orders.
157I find that he has ignored the court order of October 2018 restraining him from being around Ms. S.’s home or in her presence.
158I find the events as described by Ms. S. regarding Mr. C.L. being around her home and outside her different apartments to be credible given the overall evidence I have heard.
159Mr. C.L. was oblivious to his own actions of stalking Ms. S. when he argued at trial that he had a right to be at the library which was on a Thursday and followed her to the police station where she complained to the police of his presence. Mr. C.L.’s visiting time was Friday not Thursday.
160I also find that Mr. C.L. was manipulative with his evidence at trial when he offered photos depicting Ms. S. and their daughter at the mall where they had the pick-up and drop-offs and a Buddhist temple that they frequented. These photos were offered by Mr. C.L. as he wanted them to represent Ms. S. being close to him in social settings and therefore, he argued she could not be afraid of him and had no grounds to request a restraining order in this trial.
161I later heard from Ms. S. in her testimony that these photos showing her in a restaurant with her daughter and the Temple were taken of them without her permission. She testified that Mr. C.L. did take the photos at the end of visits when he returned their daughter at the mall. He would continue to follow her as she ordered food for her daughter at the end of visits and he also showed up at the Temple when she was present, and he was not invited.
162Mr. C.L. was aware that Ms. S. wanted him to stop communicating with her in the community or be around her apartment.
163I find Mr. C.L.’s behaviour to be “intrusive, troubling, and meddlesome behaviour” of Ms. S., and that there has been some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. Purewal v. Purewal, 2004 ONCJL 195.
164I am satisfied that the evidence presented to the court and the legal principles in the various cases cited by Justice Paull, require the court to make a restraining order under section 35 of the Act.
Best interests of the child
24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.
Primary consideration
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional, and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.
Factors
(3) Factors related to the circumstances of a child include
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child. 2020, c. 25, Sched. 1, s. 6.
Factors relating to family violence
(4) In considering the impact of any family violence under clause (3) (J), the court shall consider
(a) the nature, seriousness, and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional, and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and
(h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6
165I find that it is in J.L.’s best interests for Ms. S. to have sole decision-making responsibility and for the child to have her primary residence with her. Summarizing the relevant best interest factors set out in subsections 24 (2) (3) and (4) of the amendments:
a) The mother is the parent who best provides for the child’s physical, emotional, and psychological safety, security, and well-being.
b) The child has had a stable parenting arrangement with the parties, as described by the mother. The mother’s community witness testified about Ms. S.’s care and connection to others in the community that benefits her daughter.
c) J.L. has had her primary residence with the mother from May 2017 and regularly spends parenting time with the father here in Toronto.
d) The mother has facilitated and promoted the child’s relationship with the father.
Ms. S. has encouraged parenting time with Mr. C.L. despite his stalking behaviour in the community. When she needed to take steps to curb his actions, she attended court for assistance and direction and did not weaponize parenting time or turn her daughter against her father.
e) The mother has made most of the major parenting decisions for the child in a responsible manner and has shown that she can care for and meet the needs of the child.
f) Ms. S. has arranged medical care and education for J.L. who is in a French Immersion program. The child is functioning well in her primary care. This should not be disrupted.
g) The court received no independent evidence about the child’s views and wishes. It was agreed that she loves spending time with both parties.
h) The mother has facilitated and promoted the child’s relationship with the father.
i) The mother has worked very hard to communicate and cooperate with the father despite her trepidation in dealing with him. The father can communicate and cooperate positively, but this is contingent on his getting his own way.
j) The mother has been the victim of family violence by the father. He has, at times, been controlling, and abusive to her. This has been a pattern of conduct in Montreal and it continued in Toronto. The father used his sponsorship of Ms. S. to attempt to control her. He took her documents and argues she was out to obtain status from the start of their relationship which the facts do not support. It has caused the mother to fear for her physical and emotional safety with him.
Parenting Time
Legal Considerations
The test for determining parenting time is what order is in the best interests of the child. In making this determination, the court has considered the “best interests” factors set out in the amendments, as well as all other relevant considerations.
The child should have maximum contact with both parents if it is consistent with the child’s best interests. See: Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27; Rigillo v. Rigillo, 2019 ONCA 548.
An equal-parenting time plan requires a high level of communication and coordination between the parties, particularly when the child is very young. The parents will have to coordinate schooling, medical appointments, and extracurricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child. See: Bokor v. Hidas, 2013 ONCJL 40; L.I.O. v. I.K.A., 2019 ONCJL 962.
166Ms. S. was fair and balanced in her assessment of the quality of the time that J.L. spends with Mr. C.L. She stated that her daughter enjoys the time with her father and the events and gifts she experiences and receives. Ms. S. did state that her daughter appears hungry at the end of visits and that Mr. C.L. does not seem to feed her at the end but returns her with food to bring home. This is not a great concern.
167Ms. S. was fearful of her daughter spending time with Mr. C.L. in Montreal. She suggests he might take her out of Canada. There is no evidence that he has threatened to do this. She should have time with her father and paternal grandmother in Montreal over specific holiday periods in the year when there is ample time to travel to and from Toronto and Montreal while with her father both ways.
168Both sides of the family have extended family and cultural ties with Cambodia and J.L. should have the opportunity to visit with family such as her maternal grandfather whom she has not visited directly as well as with her father.
Final Order
Ms. S. shall have the final decision-making authority regarding her daughter J.L., born […], 2015.
J.L.’s primary residence shall be with Ms. S. in Toronto, Ontario (see below regarding limits to relocation).
Ms. S. shall have the authority to apply for or renew all documents for the child J.L. born […], 2015, including the child’s Canadian passport without the need to obtain the consent of the Applicant father Mr. C.L.
If Mr. C.L. requires the child’s passport to arrange an international trip and for international travel, Ms. S. shall provide this to Mr. C.L. who will return this passport to Ms. S. immediately (within 48 hours) when it is no longer required. If Mr. C.L. misplaces this document and/or does not return the child’s Canadian passport in the time limit as per this order, he will pay to Ms. S. $2500, payable as child support and enforced by FRO, for all requirements legal and otherwise to recover and/or replace this document.
Both the Applicant and the Respondent shall advise each other of any change to their address, telephone, and email (see below regarding need to advise regarding change to address).
With this order both parents are required to abide by the following as found in the Children’s Law Reform Act regarding any change to their residence:
a. Change in residence, person with decision-making responsibility or parenting time
39.1 (1) A person who has decision-making responsibility or parenting time with respect to a child and who intends to make a change in residence, or in the child’s residence, shall notify any other person who has decision-making responsibility, parenting time or contact under a contact order with respect to the child of the intention. 2020, c. 25, Sched. 1, s. 15.
b. Notice requirements
(2) The notice shall be in writing and shall set out
(a) the date on which the change is expected to occur; and
(b) the address of the new residence and contact information of the person or child. 2020, c. 25, Sched. 1, s. 15.
Both parties shall have the same right to communicate directly with any service providers who provide service to the child (i.e. doctors). The consent of the other parent for such communication or for the service provider to release information, documentation, or records to the other parent, shall not be required. This order shall be sufficient authorization for said release.
In the event of an emergency involving the child, the parent who has care of the child shall provide the other with details of the nature of the emergency and the location where the child is. If the child is in hospital the parent who does not have the child in his or her care shall have the right to see the child.
Parenting time:
a) The child J.L. and her father Mr. C.L. shall have parenting time as follows:
b) For every other weekend in person parenting time set out below Mr. C.L. shall confirm 48 hours in advance with an email to Ms. S. and APCO (Access for Parents and Children in Ontario) that he will be exercising the parenting time.
c) In the Greater Toronto Area (GTA) and in Southern Ontario region only, every other weekend, commencing November 5, 2021, from Friday at 5:30 p.m. pick-up to Sunday return at 3:30 p.m. and extended Monday at 3:30 p.m. if Mr. C.L.’s time falls on a holiday/P/E day Monday.
d) Video time each Tuesday and Thursday for up to 30 minutes from 5:30 p.m. to 6:00 p.m.
e) Holiday and summer:
The holiday/summer parenting time set out below may be exercised by Mr. C.L. with his daughter in Montreal or other regions of Canada if he so chooses provided that the following conditions are followed:
Mr. C.L. shall advise Ms. S. and APCO 30 days in advance by email if he intends to exercise the specific holiday and the summer parenting time set out below and for the summertime , the specific dates that he intends to exercise the summer vacation.
Mr. C.L. shall personally travel with his daughter from Toronto and return to Toronto, and to and from the designated exchange location.
All transportation is to be safe and Mr. C.L. is to pay for this transportation.
Mr. C.L. shall provide Ms. S. with an email 30 days in advance with the location where J.L. will spend this parenting time with her father and an active phone number.
During this parenting time the child J.L. shall be free to telephone/video with her mother as J.L. wishes and Ms. S. may do so with her daughter at least three times during this parenting time around 7:00 p.m. in the evening for 15 minutes or so. Mr. C.L. shall facilitate this communication between J.L. and her mother and provide a telephone number in which to do so.
Christmas school break shall rotate each year between the home of the Applicant and Respondent as follows:
Week 1 - the day after school ends until December 27 at 12:00 noon of each year.
Week 2 - December 27 at 12:00 noon to January 2 at 12:00 noon of each year.
The Applicant father shall have week # 2 commencing December 27, 2021, to begin the rotation.
March Break - the March Break week will rotate each year between the Applicant and the Respondent (Saturday a.m. pick-up to Saturday 12 noon return) with the Applicant father having this holiday commencing in 2023.
Summer vacation July & August commencing 2022 one week in July and one week in August. These weeks shall be non-consecutive with at least a 14-day period between each week (A week is defined from Saturday a.m. pick-up to Saturday 12 noon. return).
All exchanges shall take place through Access for Parents and Children in Ontario. If APCO is not available then the parties to agree on a third party or neutral location, child’s school, or local library/community centre.
International travel:
a) Both the Applicant and the Respondent may arrange to travel internationally with their daughter J.L., born […], 2015.
b) This international travel shall not exceed 30 days and not have the child J.L. miss any of her schooling.
c) In any one calendar year the child J.L. may only be brought on one international trip of 14 days or greater. And such a trip by one parent with their daughter cannot be planned in consecutive years/back-to-back.
d) In order to do so the travelling parent must provide to the other in writing 90 days in advance the dates they wish to travel along with the exact details as to where their daughter will be staying with the travelling parent and an active telephone number where their daughter may be contacted by the non-travelling parent.
e) The non-travelling parent may phone or video chat with their daughter at least two times in 7 days. J.L. may contact the non-travelling parent as she wishes at any time and the travelling parent is to facilitate and pay the cost of this communication between J.L. and the non-travelling parent.
f) If the father Mr. C.L. wishes to bring his daughter on an International trip of 14 to 30 days, he may only do so in the months of July and August and he is to use the two-week summer vacation as set out above in this order as all or part of this trip, up to a maximum of 30 days, and may in this case use the two weeks consecutively that are designated as summer vacation as set out in this order.
Restraining Order
Mr. C.L., born […] 1973, shall not come within 500 metres of […] Ave., Toronto, ON, Unit […] for any reason at any time.
This restraining order is effective immediately and shall remain in effect until the court orders that it be terminated or changed.
Monthly Child Support
Mr. C.L. shall pay monthly child support to Ms. S. for their daughter J.L. born […], 2015, in the amount of $461 based on an imputed income of $50,000 per year to commence June 1, 2019.
Section 7 costs are to be paid proportionate to the Applicant’s and Respondent’s income. I set the current share to be 75% to Mr. C.L. and 25% to Ms. S. At this time these expenses are daycare costs and any dental/medical cost for J.L. not covered via OHIP. Ms. S. shall send the invoices for these costs to Mr. C.L. who shall pay to FRO his share within 14 days. Ms. S. may register with FRO these invoices. All other proposed extra expenses must be agreed to between the parties before incurred.
In addition, commencing December 1, 2021, Mr. C.L. shall pay to Ms. S. $100 per month towards arrears in child support that has accumulated as calculated by the Director of the Family Responsibility Office.
A Support Deduction Order SDO shall issue.
Annual disclosure clause to be included in final order.
Interest payable for arrears owing to be set based on current % charged.
Released: October 25, 2021
Signed: Justice A.W.J. Sullivan