ONTARIO COURT OF JUSTICE
BETWEEN:
V.S.
Applicant
— AND —
F.F.
Respondent
Before Justice Philip J. Clay
Heard on October 20, 21, 22, 25, 26 and 27, 2021
Reasons for Judgment released on November 16, 2021
Mr. B.G. Fejes counsel for the Applicant
Mr. J. Ozor counsel for the Respondent
OVERVIEW
1Everyone who is caught up in family law litigation has to deal with emotional and financial stress. The evidence in this trial included common themes about love and loss, betrayal and anger, and bitterness and distrust. All of the sad realities of a broken relationship and separation from one's child are set against the backdrop of criminal charges, child protection involvement, parenting time denial during COVID-19 lockdowns, immigration applications and at the penultimate moment before trial a move of the child from Brampton to the Kingston area.
2I will refer to the Applicant as the father and the Respondent as the mother even though there is some relevant evidence that pre-dates the birth of their only child.
3The mother came to Canada from Indonesia and has lived and worked in this country since 2006 on a series of work visas. She returned to Indonesia in 2010 to marry a man she met in university. He then decided that he did not want to live in Canada. The father came to Canada from Hungary in 2012 when sponsored by his former spouse. The father's sponsorship was withdrawn upon their separation. The parties met in 2015 when the father was unemployed, and the mother was working a minimum wage job at a mall. Although both of them had learned English over the years, they both requested interpreters in their native language for this trial.
4In the spring of 2016, the father returned to Hungary and did not expect to return to Canada. He received a message from the mother that she was pregnant with his child. He returned in the summer and the parties found an apartment together in the Jane-Finch area of Toronto. Their child S.S. was born on […], 2016. The parties then discussed jointly applying for permanent residence status in Canada. The mother was not yet divorced from her spouse who now lived in Kuwait. The father strongly encouraged her to return to Indonesia to obtain the divorce. She went with the infant child in the spring of 2017 but was not able to obtain the divorce and return to Canada until November 2017.
5While the mother was gone the father entered into another relationship with A.M. a younger woman from the Philippines who was in Canada on a work visa. The father moved the party's possessions from the apartment he shared with the mother to an apartment he acquired with A.M. The father then picked the mother and child up from the Toronto airport and drove them to the abandoned apartment. He gave the mother some money and told her that their relationship was over.
6The mother was distraught. There was evidence of her attempts to contact the father. Finally, on January 16, 2018 she invited him to the apartment they had once shared. The year-old child was in the apartment when an argument escalated, and the mother tried to stab the father with a kitchen knife. The police were called, and the mother was charged. She ultimately entered a guilty plea to assault with a weapon.
7The child protection authorities became involved and the child was placed with the father at the time of the incident. The father issued an Application for custody. The mother had supervised visits with S.S. at the society for about four months and then supervised visits at a supervised access centre. On October 8, 2019, the mother obtained unsupervised visits. The father then lived in Brampton with A.M. and the mother lived in the Toronto apartment. The visits became alternate weeks.
8The parties exchanged S.S. at a police station. At the time of the first lockdown in March 2020 the father kept S.S. for five months. At the time of the second lockdown in December 2020 the father kept the child for almost two months. At the time of third lockdown in April 2020 he kept the child for five weeks. There was no communication directly between the parties from the incident in January 2018 to the time of trial. There were only two short telephone calls between the mother and the child during the spring 2020 lockdown period. There was no video parenting time arranged.
9The father married A.M. in February 2018. They obtained their permanent residence cards based on Humanitarian and Compassionate ("H and C") grounds. Their successful application was said to be because of the fact that the father was parenting S.S. a young child who was a Canadian citizen. The mother was denied permanent resident status because of her criminal conviction for a violent offence. The mother was ordered to be deported, but in August 2021 she was successful on an appeal of the pre-removal assessment officer's decision. The mother has a pending claim to the Immigration and Refugee Commission based upon H and C grounds.
10In the spring of 2021, the father and A.M. decided to move to Wolfe Island which is 3 km. from Kingston and accessed by ferry. The father moved with the child in August 2021. Despite both parties having counsel, the father never provided the mother with any notice of the move. The mother found about the move from her 4-year old daughter. The child was brought for a parenting time exchange on September 11, 2021 and she said she did not want to spend time with her mother. There was an attempted exchange on September 25, 2021 and the child refused to go with the mother despite the intervention of a female police officer. The child protection authorities in Kington received a report and the child was interviewed. At the time of trial S.S. had not seen her mother since September 18, 2021.
11After hearing evidence from both parties, I ordered a one hour visit between S.S. and her mother during the trial. The mother's friend A.T. subsequently gave evidence that the child was reluctant to leave A.M. who dropped her off to be with her mother. After some period of time the visit went well. I then ordered that the child be dropped off by A.M. to A.T. at the lobby of the mother's apartment building on October 27 where she was to stay with the mother until October 31. The child was attending school on Wolfe Island, so she then returned to her father's home with video parenting time to the mother twice a week pending my reserved decision.
PROCEDURAL ISSUE
12The Application was issued under the Children’s Law Reform Act (“CLRA’) well before the March 1, 2021 amendments. This matter will of course be decided under the law as amended. Mr. Fejes was the father's counsel at the time of the amendments. It appears that he was advised of the father's pending move just before it happened. When it was pointed out that the father failed to give any notice to the mother of the move, much less the formal notice under the amended CLRA, Mr. Fejes stated that he should have been aware of the notice provisions and to be fair to the father he did not advise him of them. He said that as the September 11, 2018 order gave the father "primary residence" that the father felt that he had the right to move that primary residence.
13It should be noted that there was no temporary order for custody and the primary residence term was made in Justice S.V. Khemani's order of September 11, 2018 when the mother was still on bail. It was part of an order in which the mother's access (as it then was) moved from the Children's Aid Society to a Supervised Access Centre.
14There was no motion brought by the mother to have the child returned to this jurisdiction as the matter had been adjourned from the summer to the fall trial list. After the trial audit, and just before the trial began, the father brought a motion for the appointment of the OCL due to the child's refusal to spend time with the mother after the move.
15As the matter had already been adjourned by the parties from two earlier trial dates and had been before the court since 2018, the motion was denied, and the matter remained on the trial list as a high priority matter. As a result, although the mobility issue was not pleaded, it was an issue for trial.
16I made it clear from the outset of trial that the unilateral move of the child by the father would be reviewed, and as the child was only 4 years old, I would have no hesitation in making an order for a change in the child's residence if warranted by the evidence. The alternate week order had been frustrated not only by the child’s refusal to go with her mother at an exchange, but also by the fact that it was effectively a 4 hour one way trip from the father's home to the mother's home, and the child was now in full time school.
ISSUES
Which party should have decision making responsibility for the child S.S.?
Should a primary residence designation be made, and if so, which parent's home should be designated as the child's primary residence?
What parenting time order should be made for the non-primary residence parent?
Should there be a specific order with respect to parental communication about the child?
Should there be a continued order for police enforcement of parenting time?
Should there be any restrictions on either party's ability to travel with the child both inside and outside of Canada?
What amount of child support is owed by the mother to the father during the period that he had primary residence prior to the October 8, 2019 order?
Should any child support be ordered in the period October 8, 2019 to November 30, 2021, and if so, how much?
What child support should be paid by the non-primary resident parent to the primary resident parent, if any, beginning December 1, 2021?
What should the parties proportionate sharing of future s.7 expenses be?
THE EVIDENCE
17This trial was held in court with all COVID-19 safety precautions followed. Pursuant to an order made at the trial management conference the parties gave oral evidence and their witnesses filed affidavits and attended court to be cross-examined. There was an order excluding witnesses until they gave their evidence. The father's only witness was his spouse A.M. The mother had two friends give evidence A.T. and F.M.
18The parties filed a joint book of documents which was made an exhibit on consent. They also filed a Statement of Agreed Facts ("SAF") that essentially set out a narrative similar to the overview set out above though, it did not include the events of the summer of 2021.
Background
19The father stated that he was born in 1976 in Hungary. He had been divorced there before he came to Canada. He remarried in Canada. He was sponsored for permanent residence status by his second spouse. He separated from his spouse in 2014 to begin a relationship with the mother, but he left the apartment they lived in to return to his spouse. His spouse then alleged that he assaulted her. He was arrested and charged. He spent a month in jail. The charge was ultimately withdrawn or dismissed (it was not clear from the father's evidence). The father said that his spouse had lied to the police and told a completely different story in court.
20The mother was born in Indonesia in 1980. She said she went to university there. She came to Canada in 2006 to work as a nanny for an Indonesian family in Deseronto a community near Napanee. She told a harrowing story of being alone in their house babysitting their 7-month old niece when the house burned down. She escaped with the baby who was unharmed. The mother was hospitalized for three months with the injuries she sustained breaking a window and escaping to the roof. The mother received a police citation for her bravery.
21The mother moved in 2011 to Scarborough where she found a job in a restaurant for a year. She then obtained a job at a KFC in the Vaughn Mills plaza and then transferred to another take out restaurant in that mall where she continues to work.
22The parties met online in 2014. The mother lived in a one-bedroom apartment in Maple when she began dating the father. After just two weeks the father said that they should move in together and they found an apartment. The mother paid the first and last month's rent. They moved in together but separated as noted above.
23When they re-connected in 2015 the father had been released from jail and was living in Pickering. He was at a low point in his life. His driver's license had been suspended for four months for failure to pay traffic tickets so he could not work as a truck driver. The mother said the father was bitter and angry with his ex-wife whom he blamed as the source of his problems.
24The mother said she went to the father's Pickering house. She said it was filthy and smelly with dirty dishes everywhere. The mother felt sorry for the father who was clearly down and out. She cleaned his house for 2 hours and then she cooked for him. She then gave the father $300 to pay his for his traffic tickets. The mother's generosity came at a personal cost as she missed training workers at her job when she was with the father and she lost that job.
25The father broke up with the mother and she found a roommate to help with the rent. When the father came to her work, she felt sorry for him, and said he could move in with her again and she convinced her room mate to let him do so. The father only paid $200 to the $1,500 a month rent.
26The father said that the time between 2015 and the spring of 2016 was a very difficult time. He said that the mother was always angry. He was Catholic and the mother was Muslim. He said that she constantly tried to convert him to Islam. The mother denied this and said that this was a happy time for her.
27The mother spoke with a soft voice and smiled frequently. She said that "everything was beautiful after he moved back in." The mother spoke positively about many things that did not seem to very positive from an objective viewpoint. She had just moved into an apartment with a man whom she had described as an unemployed, bitter, and unkempt.
28The mother's friend from work F.M. said that the mother was very happy and "glowed" during the early months of the relationship, but over time she seemed stressed. F.M observed the father and mother together when he came to their workplace and later when she and her husband invited them to a BBQ at their home. She said that the father spoke sharply to the mother and he appeared to her as a very controlling and manipulative person. She said the father often attended at the restaurant where they worked and demanded that the mother give him money. F.M. said that the mother did not see the nature of the father's personality at first, but after the relationship ended, she was able to appreciate how she was poorly treated.
29The mother's view of the early months of their cohabitation contrasted sharply with that of the father. He said that his relationship with the mother was poor from the outset. He said that the mother was prone to frequent fits of anger. He said she was irrational and hoarded her money so she could send it to her family in Indonesia. He said he was scared of her and she constantly threatened to call the police or immigration authorities on him.
30The father constantly spoke of the mother's anger. There was no evidence of any anger or bitterness in her testimony. The mother was very expressive and early in her evidence when recalling difficult periods in the relationship she became very tearful. Her demeanour when she gave evidence matched the descriptions of her by her friends A.T. and F.M, who were of course not present for her evidence. They said she was a sweet, loving person who was kind and gentle with everyone she encountered.
31The father left for Hungary in March 2016 when his father was very ill. He said that when he left, he did not plan to return to Canada. The father said that he received a message in or about April 2016 that the mother was pregnant. He returned to Toronto in May 2016. The parties found a two-bedroom apartment in the Jane-Finch area. The mother still resides there.
32The mother related how she was supposed to pay the first and last month's rent for this new apartment but forgot the money in her locker at work. The father was enraged when he found out. He accused her of sending the money to her family. The mother said he drove her back to work to get the money and became so angry that he punched the roof of the car and then ordered her to get out. She took the bus the rest of the way. He showed up at her workplace later to get the money. The mother said that after this incident the father was angry with her all of the time. She suspected him of cheating on her and lying to her. At this point in her evidence the mother became overwhelmed with emotion.
33Both parties were still legally married in 2016. The father obtained a divorce from his second spouse in November 2016. The mother had returned to Indonesia in 2010 to marry a man she had met at university. He was a citizen of Kuwait. The parties were married in an Islamic ceremony. The plan had been for him to move to Canada and when she was able to do so, the mother would sponsor him. After a short visit, her spouse decided to return to Kuwait.
Child's birth to trip to Indonesia
34The mother stopped working in November and S.S. was born on […], 2016. The father insisted that the mother apply for maternity and child tax benefits as a single mother. She was upset with this and did not do it. He became more upset that he had to pay for everything. The mother said she was quite ill after the baby's birth, and the father was very resentful of what he had to do around the home.
35The father said that living with the mother was "hellish." He said she was always angry and irrational. On one occasion she locked herself in the bathroom holding a knife and stating that she wanted to kill herself. Another time she locked herself in a car in minus 40-degree weather. He said he was constantly afraid of what she might do when angry.
36The father said that after the child's birth the mother fell into a depression. The doctor had told her they were having a boy and when she had a girl, she was very upset. She did not get out of bed for the child, she refused to try breastfeeding. The father said that he had to take a month off work in order to care for the child. The father said that he regretted telling the visiting nurse after the birth that the mother was doing well, because she clearly was not.
37The father said that the mother would not buy anything for the child. He said she was saving all of her money and forcing him to be the sole support for the family. The father often returned to the issue of money during his evidence.
38Despite the problems that both parties described they still wanted to marry and jointly apply for permanent residence status. The mother retained a lawyer to obtain a divorce from her husband. By that time her husband had already obtained a divorce and remarried. However, as the mother has sponsored him, she had to follow up their marriage certificate with a divorce certificate to end that sponsorship application and be in a position to claim permanent residence status with the father.
39She said the father was very upset with her for retaining a lawyer. She said he was always very concerned about her spending any money and he thought the quickest and cheapest way for her to obtain a divorce would be for her to return to Indonesia with the child. Both parties said they thought she would be gone for only about two months. If the father truly had concerns with the mother's ability to cope with the child, he would not likely have consented to her leaving the country for months with the infant. If the relationship was really as horrible as the father described, one would think that he would not need to encourage her to get a divorce so they could be married.
40The father gave the mother some money for the airline ticket and he sent her money twice while she was in Indonesia. The mother said she finally applied for her maternity leave money and the retroactive lump sum was used for the ticket and some of her expenses.
41The father saw the child twice by video call during the six months the mother was in Indonesia. The father said he was very upset when he learned that the mother had not obtained a visa for the child-a Canadian citizen- to travel. This meant that the mother and child had to leave Indonesia for Singapore to renew two-month visa's. The father was upset with the delay and the cost and blamed the mother for not looking into things properly. The mother said that the father was insistent that she go to Indonesia as soon as possible after his return from Hungary. He pressured her to leave and she did not have time to properly prepare.
The separation to the criminal charge
42The father met A.M. online in the summer of 2017 when the mother was in Indonesia. A.M. was from the Philippines and in Canada on a work visa. She had a work history of caring for young children. Without telling the mother, in or about July 2017 the father moved all of the possessions out of the apartment that they shared leaving only a bed. The father then moved in with A.M.
43The mother and child returned to Canada in November 2017. The father met her at the airport. He took the mother to Walmart to buy things for the child. He then took her back to their apartment. He gave her some cash, and then told her had found someone else and he was leaving her. The mother was devastated.
44The mother could not afford the apartment on her own, but she found a roommate to share the rent and she purchased new possessions. She said she tried to contact the father. She said she was very hurt and upset about the treatment she had received from the father.
45The mother said that through a mutual friend J.. the father did ask about seeing the child. The mother admitted that she was angry at that time and as the father would not tell her where he was living, she refused to make S.S. available for a visit.
46The father said that after he dropped her at the apartment the mother became very angry. He said that she would try to call or text him up to 200 times a day. He said that she threatened him with calls to immigration or the police. He said that after his experience with being falsely charged, and sent to jail by his second wife, he could not risk being around the mother. He was very afraid that she would make up a story and have him charged.
47The father did not tell the mother that he moved to Brampton in October 2017 and rented a home with A.M. The father never responded to the mother. He said that on two occasions he dropped off diapers. The second time was at Christmas and her roommate told him not to come around again.
48The mother was angry and needed to talk to the father about what had happened. The mother ultimately invited the father to her apartment to see the child. The father said that the mother had not contacted him for five days which was very unusual, and then told him that the child was ill. The father went to her apartment on January 16, 2018 to see what was wrong with the child. He quickly realized that this meeting was not about the child.
49The father said the mother said he could not leave her. She yelled at him to call his girlfriend A.M. and tell her that everything was over. The father pretended to phone, but actually took photos of the mother in a distraught state. The mother then went to the kitchen and came back holding a knife backwards to try to hide it from his view. He put the child down on the sofa. He said that the mother then attacked him with the knife.
50The father said that the mother screamed that she would kill him, kill the child and then kill herself. The father stated that he tried to distance the conflict from the child by moving out the door. He said he was able to grab at the mother's hand and in so doing his hands were cut in several places, his sweater was ripped apart and he was bleeding from the leg and ear. He said that the worse injury happened when she bit him in the chest which ripped some flesh away. The fight moved to the elevator and the parties ended up on the ground floor in front of the superintendent's office. The superintendent's son got the mother to place the knife on the desk, and he called the police.
51The father declined an ambulance as most of the cuts were superficial, but he did get a tetanus shot the next day. The father then left the apartment with child after collecting all of the child's clothes and belongings. He called friends to look after the child while he went to the police station to make a statement.
52The mother was not asked in this trial about what occurred on January 16, 2018. Afterwards she arranged to see an anger management specialist at her own expense. She then took the Partner Assault Response Program (“PAR”) program arranged through probation. She entered a guilty plea to assault with a weapon on January 24, 2019 and was placed on 18 months probation which continued her bail terms not to contact the father directly or indirectly except through a family court order made after that date. As will be noted, both the mother and the father took the position that they could never contact the other about anything to do with the child except through counsel.
53When the police were called on January 16, 2018 the Children's Aid Society of Toronto ("CAST") were notified. It took the position that the child could reside with the father and have supervised access with the mother.
54The father married A.M. in February 2018. They applied for permanent residence status as a married couple, and it was granted in February 2021.
The Application and supervised access.
55The father retained counsel (not trial counsel) and issued an Application in May 2018. His claims included an order for custody, an order that the mother's access be at his discretion, an order that the mother have a mental health assessment, a restraining order, and child support.
56The mother did not have counsel when the parties attended court for a case conference on September 11, 2018. At that time the parties signed Minutes of Settlement ("M of S") to a temporary order which provided that S.S.'s primary residence shall be with the father. The mother would continue to have access at the Peel Children's Aid Society ("PCAS" ) for two hours once a week with such access to move to the Peel Supervised Access Program (“PSAP”) once the society were no longer prepared to supervise. The SAF stated that the mother had supervised access with the society from March 7, 2018 to October 24, 2018. She had supervised access at PSAP from November 2018 until July 2019.
Unsupervised parenting time.
57The mother brought a motion for unsupervised access that was heard on October 8, 2019. The observation notes kept by PSAP showed that the mother attended all of her visits. The mother and child were affectionate with each other and there were no concerning incidents. The father noted that the mother always brought gifts for the child and always asked for displays of affection.
58The father strongly opposed any unsupervised access between the child and the mother. He was between counsel at the time of the motion as he did not retain his current counsel until February 3, 2020.
59The order of October 8, 2019 provided that the mother would have alternate weekend access for three weekends beginning November 1 at 6:00 p.m. It also provided for mid-week access from Tuesday to Thursday on the weeks when there was no weekend access. After that, the access would move to a defined schedule which was set out in a chart included in the order. It was essentially a two-week schedule with the days divided as 2-5 one week and 2-3-2 the next. The mother was responsible for all pick-ups and drop-offs.
60The first scheduled visit was November 1, 2019. The mother was to have someone drive her to the father's home in Brampton for the pick-up at 6:00 p.m. The mother said that she was detained at work as she was the manager and the owner was late replacing her so she could not leave on time. She said that due to the non-contact order she could not tell the father she would be late. She had to go from her work in Vaughn to her home in North York to get the car seat for the Uber to the father's home in Brampton. She did not have a car or a license to drive,
61As she knew she would not make it in time she sent her Uber driver to attend on time and to ask the father to wait for her. That driver tried to put the mother on speaker phone so she could explain the problem. The father refused to talk to the mother. The father went out to take photos of the vehicle which did not have a car seat. He then took the child back into the house.
62When the mother finally arrived with the second Uber and a car seat the driver knocked on the door, but the father did not answer. He called the police at 18:31 p.m. to report that the mother was contacting him in breach of the terms of her probation by trying to talk to him on speaker phone. He made a recording of the mother' statements, and he alleged that she said she would take the child away from him. He provided the recording to the police.
63The police arrived a few minutes later and spoke to both parties. The father ordered and filed the police report. As the mother had not ordered it her comments to police were redacted (which is why counsel should obtain consent or court orders if they wish to file police or child protection reports). The police did not see any criminal offence, but the mother did not get to see her daughter that day.
64The mother did not have any of the mid-week contact provided by the order. Once unsupervised parenting time began the father contacted the CAS and/or the police to make reports. He said that his young child was unsafe as the mother lived in a filthy apartment, and the child returned with bed bug bites.
65The father alleged that after the October 8, 2019 order was made, the mother started contacting him through her room mate. He contacted the police and stated that she was breaching her probation by contacting him.
Father's refusal to exchange child January 2020
66What followed next was an example of the father's bad faith and absolute refusal to allow his daughter to see her mother unless he was absolutely required to permit her to do pursuant to a court order that was enforceable by the police.
67The October 8, 2019 order provided in paragraph 5 that from January 1, 2019 onwards the parents were to have access in accordance with the schedule set out above for December 2019. (emphasis added). Unfortunately, the wrong year was used in the endorsement, and the order which was not issued until February 28, 2020.
68I find that the typographical error was so clear in the context of the order being made that any reasonable person would see that the court intended to write January 1, 2020. The father is not a reasonable person. He used any excuse available to him to deny the child time with the mother. The mother attended at his home on January 1, 2020 for her visit (she had no contact with the child on her birthday three days before). The father refused to release the child. The mother must have contacted the father about this, and no doubt she was quite emotional.
69The father called the police. The mother said that she had a court order for parenting time with her child. While there was no direct evidence on this point from the police it appears that they took the position that they could not enforce a court endorsement, and there was no issued order available.
70The mother then brought a motion to the court for an order to correct the typographical error as the father would not consent to a draft order with it changed. The father did not oppose the motion, but he forced the mother to bring a motion, and on February 18, 2020 an order was made for the error to be corrected. (though the uncorrected order was issued on February 28, 2020)
Mother charged with breach probation
Mother denied parenting time December 27 to February 22, 2020
71Returning to the missed parenting time on January 1, 2020 the mother not only lost her scheduled week with S.S., but due to her attendance to pick her up on January 1, 2020 the mother was charged with breach probation for contacting the father. The father ordered the occurrence report and both counsel consented to its admission. The occurrence report was almost completely redacted so the only information presented was that the police attended at 18:37 at the father's home and the mother was charged. The mother's new bail terms did not include any exceptions for indirect contact regarding the child. The mother filed the criminal court information which addressed the numerous court attendances and the fact that the breach probation charge was finally withdrawn on July 7, 2021.
72There was a gap in the mother's access as a result of the breach probation charge and the typographical error in the endorsement. The mother did not see the child between December 27, 2019 and February 22, 2020.
Child's broken leg
73What the mother did not know during this period was that S.S.'s leg had been broken in a tobogganing accident. This occurred on January 18, 2020. The father took the child to the Trillium hospital and a "toddler fracture" was diagnosed (a non-displaced fracture of the tibia). The leg was placed in a cast. The PCAS were contacted by the hospital. The society worker determined that it was an accident, and no further action needed to be taken. The father's evidence was that the society worker told him that she would contact the mother to tell her about it. The father did not make any effort to contact the mother directly. It is to be noted that he was not bound by a no contact order and he could have contacted the mother through her counsel. (the mother had her current counsel at this time, but the father's current counsel was not on the record until February 3).
74The parties were then in court on February 21, 2020 and signed M of S as noted below. Both parties now had counsel. The leg fracture was not mentioned.
75The mother said she was never advised of the injury prior to her picking her child up on February 22, 2020. The evidence is that the father took the child back to the Trillium hospital on February 18 and the cast was removed. The hospital report was filed. The fracture had healed, but the father and A.M. said that they were told that the leg needed to be massaged and the child would have difficulty putting weight on it for awhile.
76The child was not made available for the mother's parenting time on February 21. The mother complained to the police and she was told to come back the next day. The child was there on February 22, 2021. The father carried the child to the mother's vehicle. A.M.'s evidence was that the father asked her to tell the mother to massage the child's leg because the cast had just been removed. She said that the mother was upset and clearly did not listen to her. The mother admitted to being upset because she had not seen her daughter since December 27, and the father had failed to attend for access the previous day.
77The mother said she took her daughter from A.M. and went directly to the bus stop with her. She heard A.M. say something about massaging the leg but did not know why. She said she had not been told that the child had a broken leg. She conceded that the society may have tried to call her, and she did not answer calls that said, "private caller." When the mother got home with the child, she noticed that S.S. could not put any weight on her leg, and she complained about pain when she tried to do so.
78The mother called her employer and he agreed to drive the mother and child to the Mackenzie Hospital in Richmond Hill the next day. The hospital records were filed. S.S. had just turned three years old, and she was unable to tell the doctor what had happened to her. The emergency room physician took X rays and noted the broken leg. He put a cast on and referred her to the fracture clinic. The hospital records then detail a series of phone calls to the family doctor and the society. The bitter custody battle was noted, and the child was booked for an appointment at the Suspected Child Abuse Network ("SCAN") clinic at Sick Kids hospital.
79Dr. Zhao the physician from the MacKenzie hospital then found out that the child had been seen at Trillium and her cast was removed on February 18. He tried to reach the mother by phone without success and to his credit he then attended at SCAN to try to speak to her there. The mother said she received a call and called back unsuccessfully. She took transit with the child to SCAN. When she was in the lobby of Sick Kids, she received a call saying that she could go home. She left just before Dr. Zhao arrived.
80The father actually thought that the mother's actions were irresponsible. He said she put the child in jeopardy by not calmly listening to A.M. He said he was sure that the mother must have known about the broken leg even though he made no effort to confirm that when he was in court one day before the exchange.
81It is clear that the father intentionally failed to communicate with the mother even after he had counsel. I can conclude that attempted to hide the injury from the mother by denying parenting time between the injury on January 18 and court on February 21.
82The father's failure to tell the mother caused this three-year old child additional pain and anxiety. She was encouraged to walk on a recently healed injury because the mother did not know what was wrong. She was unnecessarily taken to the MacKenzie hospital on February 23 and subjected to another X-ray. She was taken by transit from her North York home to Sick Kids just a few days after her cast was removed.
The exchanges at the police station
83As noted above, the parties attended court on February 21, 2020 and signed M of S to a court order for an alternate week parenting time arrangement. The child was to be picked up by the father at the Toronto police station closest to the mother's home and returned by the mother to the Peel police station closest to the father's home. The order was to begin on February 21, but the child was not made available by the father, so the mother's time began on February 22, 2020.
84The February 21, 2020 order contained a schedule of parenting time that was to continue until the next court date of July 31, 2020 at which time a new order would be made. This fixed end date led to problems as will be set out below.
A.M.'s relationship with the child
85It was clear that from the time the father started living with A.M. that she spent more time with the child than the father. A.M. had worked with children in China after leaving the Philippines and before moving to Canada. She said that S.S. was with her "24/7" when not with the mother.
86A.M. presented as a pleasant person whose life revolved around her husband's trucking work and her care of S.S. As will be noted below A.M. helped the father in arranging trucking work and kept his records. A.M. did not work outside the home, but during the pandemic she did take an online personal support worker course and she had plans at some point to do home visits for vulnerable people.
87A.M. said that she became very close to the child and S.S. treated her like she was her mother. As will be made clear the child spent far more time with A.M. than she did with her mother. As the parties did not communicate at all A.M. and the mother never spoke until this trial except for some incidental comments at parenting time exchanges. They both viewed the other through the prism of the father's statements. The mother was of course very angry with the father for leaving her for A.M when she was with the child in Indonesia and her anger at this betrayal led directly to her criminal conviction.
88However, notwithstanding this background there was no evidence that the mother said anything negative about A.M. to the child. There was evidence that the father and/or A.M. said that the mother was a bad person and always angry. A.M. did not make negative comments about the mother in court, but she did state that the child did not want to spend time with her.
89A.M. said that after unsupervised parenting time was ordered S.S. was very reluctant to go. She said that she told S.S. that her mother misses her and loves her, and she needed to go and see her. A.M. said it was always a challenge to get S.S. to leave their home to go to the mother's home.
90A.M. was the one who was able to exchange the child directly with the mother during the winter of 2021. After hearing the evidence of the father and A.M. I am convinced that the father could not possibly have managed to care for S.S. without the constant presence of his spouse. A.M. attended to all of the details of parenting. She arranged and attended at all of the appointments. She looked after the child exclusively at least 4 days a week and often from 5:00 a.m. to 10:00 p.m. due to the father's work (she looked after her overnight when the father was on 2-day trucking routes).
91There is no doubt that during the extended blocks of time that the father had with the child it was A.M. who did most of the parenting. The end result is that to some extent A.M. may have become the child's psychological parent as she was the adult who attended to S.S.'s needs most of the time.
92I do not fault A.M. for adopting this role. However, the fact is that she knew or should have known that the father's actions in denying the mother parenting time and ultimately moving the child 4 hours away from the mother were not in the child's best interests. I note that A.M. treated S.S. like her own child and she and the father considered themselves a family and did not encourage the child to see the mother as part of the child's family.
The first COVID-19 lockdown
Child with the father March 18 to July 25, 2020
93The new alternate week schedule was interrupted by the provincial lockdown that occurred on March 18, 2020. The father took the position that the child could not be exchanged with the mother as she needed to stay in his home. The mother brought an urgent motion to enforce compliance with the February 21, 2020 order notwithstanding the lockdown. The father was served but did not file a responding affidavit.
94On April 28, 2020 the case management justice S.V. Khemani released a detailed endorsement that referred to the developing case law and specifically Justice A. Pazaratz's decision in Ribeiro v. Wright 2020, ONSC 1829 from which she quoted extensively. Justice Khemani denied the mother's request for leave to bring an urgent motion, but stated that she hoped that by the words in her ruling that she;
… provided the necessary insight to the parents to revisit how they are communicating and parenting S.S. I urge both parents to renew their efforts to address vitally important health and safety issues for their child in a more conciliatory, productive and child-focused manner. I also direct both counsel to review Ribeiro v. Wright with their clients.
95This entreaty to the parties fell on deaf ears at least as far as the father was concerned. He failed or refused to bring the child for any exchanges from March 18, 2020 to July 25, 2020. The father said that it was not safe for the child to be with the mother because she worked in a restaurant in a mall. The mother said she was laid off as of March 18, 2020 and was at home the entire lockdown by herself.
96The father said he offered the mother video contact, but she refused it. The mother said that there was no reason why she should not have her regular alternate week parenting time. Unfortunately, the mother's position, while understandable from her perspective, was not in the best interests of the child as S.S. went 5 months without seeing her mother even by video. A.M. tried calling the mother to speak to the child on a couple of occasions, but the child was crying and too upset to talk. The father said that the child did not want to talk to her mother, and he knew that she could not stay with her mother for a whole week.
97There was a lot of uncertainty about the virus and the necessary health protocols in late March and early April and if the father had immediately resumed the schedule after the April 18 order his position might be understood as being cautious and protective. However, his stubborn refusal to allow the mother to see the child after that makes it clear that the father used the provincial lockdown as an excuse to further his agenda of minimizing her role in her daughter's life.
Child with the mother July 25 to September 4, 2020
98The child was finally exchanged on July 25, 2020 as per the February 21, 2020 schedule. The February 21 order contemplated a new order being made on July 31, 2020. That court was adjourned to September 4, 2020 by an endorsement made in chambers. There was no extension of the monthly schedule.
99The mother took the position that after the child spent 5 months with the father that it was only fair that she spend some block of time with her. The mother refused to release the child to the father between July 25 and September 4, 2020.
100The mother said that the father made at least two reports to the CAS that the mother's home was filthy, and he was worried about the safety of his child. The mother said the Toronto police arrived at her home at around 12:00 a.m. one night and satisfied themselves that the home was clean and that there were no safety concerns for the child. On another occasion the Peel police came at 5:30 a.m. for the same reasons. They looked around briefly and concluded that there was no reason for them to be there.
101The father registered the child in J.K. in a Catholic elementary school in Brampton. The mother registered the child in summer school for two weeks in August 2020 so that she would have someone to look after the child when she returned to work. The summer school was affiliated with the local public school and the mother's plan was for the child to attend at that school and to use the nearby subsidized after school program.
Alternate week schedule resumes September 4, 2020
102On September 4, the court made an order restoring the alternate week schedule with the child being returned to the father on September 5. The child began J.K. in Brampton. The father and A.M. met with the school principal and it was agreed that the child could still attend even if the mother did not bring her to school on her weeks with the child. The mother said the father did not even tell her that the child was attending school on his weeks. There was still no communication directly or indirectly between the parties except for communication through counsel.
103The mother needed to find someone to look after S.S. when she was working on her weeks with the child. The mother generally worked on Mondays, Thursdays, Fridays and Sundays. She had to take buses to work so she needed to leave for work by about 9:15 a.m. and she returned home about 7:00 p.m. The mother had noticed that A.T, who lived in her building was a good caregiver to her two godchildren. She asked A.T. if she would look after S.S. Fortunately for the mother A.T. agreed and a payment schedule was worked out.
104A.T. filed an affidavit and was cross-examined. She had lived in the mother's building since 2013 but did not really get to know her until the first lockdown in March 2020 when they were both laid off from work. She worked at law firms but had experienced lay offs during the pandemic. She said she had just obtained a new position as an office co-ordinator in a large law firm, and she was to begin this new position on November 8, 2021.
105In October 2020 A.T. agreed to become a paid babysitter for the four days a week when the mother worked. The employment relationship between A.T. and the mother and child blossomed into a close friendship. A.T. said both she and S.S. were early risers so she would go down to the mother's apartment around 5:00 a.m. and spend time with the mother and child until the mother left for work. She knew the mother only earned $16 an hour and commuted for over an hour to work so she gave the mother additional time to pay her and often declined payment to help the mother out.
106S.S. referred to A.T. as "aunty" and they became quite close. As S.S. did not attend school on her mother's weeks A.T. devised an age appropriate learning program for 3 hours that included shapes and blocks, drawing and colouring and running around for exercise.
107A.T. said that S.S. was very close to her mother and she often said that she did not want to go to her father's home. A.T. said that the mother would tell her she needed to go and A.T. began coming to the exchanges to help the reluctant S.S. with the transitions.
Parenting time denied by the father December 28 to January 7, 2021
108A.T. spoke about December 2020. The schedule attached to the September 4, 2020 order clearly provided that the father was to have S.S. from December 24 at 7:30 p.m. to December 28 at 7:30 p.m. The mother said that the father failed to attend on December 24, so the police told her to drop off on Christmas morning. The father alleged that the mother did not attend on time on December 24. It is not clear why the father did not make himself available to receive the child on December 24 even if the mother was late (which was not confirmed). Given his actions throughout this matter he may have wanted to have evidence that the mother did not deliver the child on Christmas Eve.
109The father did not attend at the police station for the December 28 exchange. He said that as the mother had taken his time on December 24, he thought he would take it back on December 28. This was particularly difficult for the mother because the next day was her daughter's 4th birthday and she had not had her daughter on her birthday in 2018 or 2019. The mother and A.T. spoke to the police to try and enforce the September 4 order. The police contacted the father, but he said they could not enforce it as the court order was not issued.
110Once again, the father relied upon a delay in issuing an order to deny the child parenting time with the mother. The father signed M of S to the order, he had the endorsement and may even have had the draft order. In the midst of the pandemic there was a delay in getting orders issued and the September 4 order was signed on December 31,2020 three days after the father denied the parenting time. The mother did not obtain the child until January 7, 2021 after she S.S. had spent an extra 10 days with the father.
111In or about January 2021 the father became concerned about the child being brought by a series of buses to Brampton for exchanges in the middle of a pandemic. He agreed to have A.M. drop the child off at the mother's home as she could take his car. This arrangement continued until April 3, 2021.
112After the schools closed in mid-December 2020 online learning was offered. Both A.T. and the mother connected to that program on their respective weekdays with the child during the mother's week. The father and A.M. connected during their week. A.T. confirmed that neither she nor the mother knew the child had physically attended school in Brampton on alternate weeks from September to mid-December. The lack of parental communication in this matter was appalling and it directly impacted the child.
Father kept the child April 3 to May 8, 2021
113The mother was working from January 2021 to April 2021 when she was again laid off due to the third provincial lockdown. A renewed schedule was put into place by order dated March 28, 2021. Pursuant to the schedule the mother had the child the week prior to April 3 when she exchanged the child with the father.
114The father then kept the child and refused to exchange her with the mother on April 10. He then kept S.S. with him until May 8, 2021. The father kept the child even though the mother was not working.
115The parties then returned to the terms of the court order and resumed exchanging the child at the respective police stations. This occurred successfully until the exchange of September 11, 2021 which will be addressed below.
The father's move to the Kingston area
116The father made the decision to move with A.M. and the child to Wolfe Island which is an island accessed by ferry from Kingston. The actual move was in mid-August 2021.
117The father said he had friends on Wolfe Island and he first started thinking about moving there about two years ago. The father said he did not move because he was required to do so for work. He said he liked the area and he found out that he could rent a three- bedroom house for $1,500 plus hydro on a big piece of property where he could keep his truck and other vehicles. The property was down a rural road in the woods and there were no houses nearby. Over time he began looking at the Kingston area as ideal for medium distance trucking routes from Toronto to Montreal. He said that if he was based in Kingston he could get home just about every night.
118The father produced a print-out of Google Maps that said that Wolfe Island was 317 km from the mother's apartment in North York. It was a 3 hour and 25-minute drive, but that was contingent on timing the ferry from Kingston to get onto the island. When considering the needs of a small child it is effectively a 4-hour one-way trip.
119The father said that he did consider the impact of the move upon the mother's relationship with S.S. He phoned her friend F.M. in mid-August after he had already started to move his possessions. He told F.M. of the move and suggested that she should convince the mother to move to Kingston to be closer to S.S. F.M. told him that the mother had a job and friends in the Greater Toronto Area ("GTA") and she would never consider moving away.
120The father said he had to consider what was best for his family which included A.M. and S.S. He said that the mother was not paying him any child support (from an order made when the mother only had supervised access). He said that he had planned on moving for some time, but the actual timing was related to his landlord planning to take taking over his rental home in Brampton as a residence for his own son. He thought since he had to move anyway, he might as well move to Wolfe Island.
121In June 2021 the father had obtained a position as a self-employed truck driver with Interstate Freight Systems Inc. ("IFS") a Brampton based company. Initially he had no choice over his routes, and he travelled as far west as Illinois and as far east as New Jersey.
122The father maintained that in order to be home every night for his spouse and child he had looked for a job in which he could move to all Canadian routes and that IFS had a lot of the Toronto to Montreal business. He thought that residing half-way in Kingston would facilitate his lifestyle goal. He also said that he expected to earn $2,000 more a month with IFS than he did with his prior company. It was clear that the father could have worked for IFS and earned more money without moving.
123The father said he did not think he had any obligation to inform the mother about his planned move notwithstanding the alternate week time sharing order. He said he thought he was "a free person." This matter had been set for trial on the sittings of this court that were to begin on August 9, 2021. The matter was spoken to at the trial audit before me as the Local Administrative Justice on July 21, 2021. Both counsel said it was not ready for trial, so it was adjourned to this fall sitting. The issue of the father's pending move to Wolfe Island was not mentioned.
124The mother found out about the move during mid-August parenting time with S.S. She said that her daughter had a lot of mosquito bites. S.S said she got them in the woods helping her father on the farm. The mother gleaned from this discussion with her four-year old that she had moved to a bigger house in the woods and that she had to take a boat to get there.
125Pursuant to the schedule the father picked up the child from the mother on September 4, 2021. He registered her in Sacred Heart Catholic school on Wolfe Island. He said he was able to register her without the consent of the mother because of the September 11, 2018 primary residence order. The father and A.M. said that the child was very excited about taking the bus to her school and had already started making friends there.
The child's resistance/refusal to go to Mother's home
126The father drove S.S. to the Brampton police station for the exchange with the mother on September 11, 2021. It did not go well. The child had vomited in the car just before the father arrived at the police station. She was crying and upset. She told the father and A.M. that she did not want to spend time with her mother. The father said that S.S was holding onto his leg and the mother pulled her away from him.
127As the father had not personally told the mother of the move, the mother was still required to pick up the child at the Peel police station in Brampton. The father drove the child from Kingston effectively past the 401 exit to the mother's Jane-Finch apartment and the mother had to take a 2-hour one-way bus trip to retrieve S.S. and to take her back to her home.
128The mother said that the September 11 exchange was difficult. She said that S.S. calmed down quickly after the exchange. However, during that week the child said to her that Papa and A.M. say you are bad. The child was returned to the father on September 18.
129The father and his spouse A.M. said that after the September 11 exchange they contacted a therapist at the Maltby Centre because they wanted someone to talk to S.S. about her fear of her mother. The therapist said she would need the consent of both parents to meet with the child and made a referral to the Family and Children's Services of Frontenac, Lennox and Addington (FACSfla).
130The father said that the child continued to enjoy school and her new home. Both he and A.M. denied that they made any negative comments about the mother to the child. The next exchange was September 25. The child slept most of the way in the car. When she woke up and realized an exchange was upcoming A.M. said that S.S. started to hyperventilate.
131The father and his spouse said that S.S. left their car crying and as the mother approached, she was shaking with fear. The father wanted to exchange inside the police station so that the police could see what was happening. Officer Kristin Fealey dealt with the parties. As there was no police occurrence that would generate a report Officer Fealey kindly agreed to send an e-mail to the father's counsel to detail what she observed and what she did. The mother's counsel consented to its admission into evidence which was helpful.
132The officer arrived for her shift at about 5:00 p.m. and observed an argument in the lobby. The father was holding a crying young child in his arms and the mother was attempting to grab the child. The officer took the mother outside to de-escalate the conflict. The mother told the officer that S.S. was refusing to come with her. The father said the child had hyperventilated and the officer noted that the child was visibly upset and shaking and crying.
133Officer Fealey spoke with the child privately. S.S. said that she did not want to go with her mother because she was scared of her and she only wanted to go with the father. S. S. refused to speak to her mother. She said she was scared but was unable to say why. The officer spoke to the mother and she said that if her daughter refused to come with her, she would have to go back with her father. The officer tried to assist with a transition from A.M. to the mother, but the child wrapped her arms around A.M. and refused to let go. Officer Fealey then tried holding S.S. and asked her if she would go with her mother and she repeatedly refused to do so. She ran back to her father and he left the station with her. The officer then overheard a loud argument in the parking area. The officer noted that all parties were very upset and in the circumstances that was understandable.
The involvement of the Maltby Centre
134The father said FACSfla was contacted after the failed September 25 exchange and the child was referred to the Maltby Centre for counselling. The father's story of who did what and when was confusing, so I ordered that the father produce a letter from the Maltby Centre. Both parties provided a consent to the centre for release of information and it was entered as an exhibit. The letter showed that it was A.M. who had made the calls and scheduled matters and the father's timeline was not accurate.
135The letter was signed by Ms. D. Handy the clinical manager of the Maltby Centre in Kington which provides children's mental health services. A.M. called the Centre on September 19 and an initial appointment was booked for September 21. The father, A.M. and the child attended the meeting. The therapist asked the child to leave the room as sensitive information was being shared. The father then told the therapist about "the child's mother threatening both himself and S.S with a knife." The therapist called FACSfla on September 23 and requested information.
136The therapist booked a follow-up appointment on September 30 just with A.M. as she wanted to spare the child further distress. A.M. brought the child anyway, so the appointment was re-scheduled for October 5 without the child.
137On October 5 a virtual session took place between a young child's counsellor and A.M. The focus of the session was on A.M.'s concern about the exchanges. A.M. described the child's symptoms of stress that occurred before the exchanges including anxiety, bad dreams, and repeated protesting, Strategies to cope with these issues were discussed. There was no request for ongoing services and no current plan for services in place. The Maltby Centre letter stated that they could provide counselling services with the consent of both parents.
The involvement of the child protection agency
138The parties also consented to the admission of an e-mail to the father's counsel from Ms. C. Jani from the rapid response team at FACSfla. She confirmed that she had a visit at the father's home on September 29 and she interviewed S.S. I admitted the contents of S.S.'s statements on consent. I note that S.S.'s statements to Officer Fealey would in my view have met the criteria required to find a principled exception to the hearsay rule as they were both necessary and reliable. The statements made to Ms. Jani would not have met that standard. Unlike the officer she spoke to the child in the presence of the father and stepmother. I am also concerned about the information Ms. Jani was provided with by A.M. or the father.
139Ms. Jani said that she understood that "week on/week off" access was a "new development" as S.S. was living primarily with the father and A.M. "due to the criminal involvement of an assault" against the father by the mother.
140Despite my concerns about the reliability of the statements, I will note some of them together with the statements made by the father as part of the narrative. I will not admit the child's statements as to the truth of their contents.
141Ms. Jani said that S.S. did not want to attend access. The father told her that they tried to exchange S.S. calmly but the child resisted, and the mother just tried to pull her off the father's leg. Ms. Jani said that S.S. told her that she did not like staying with her mother for 7 days and she is scared to go with her.
142The child was unable to say why she was scared because then her mother will be angry with her. S.S. told Ms. Jani that she calls A.M. "mommy" and her mother "mama". She said mama told her not to hug or kiss A.M. or call her mommy. S.S. said that she had to go for a week with her mama because a judge said it had to be this way. She wanted to tell the judge herself that she did not want to go.
143Ms. Jani then goes on to set out some other statements made by S.S. after some "prompting questions." Given the sole source of the background information and the fact that there were prompting questions I will not refer to or rely upon S.S.'s other statements to Ms. Jani.
144The mother was unaware of the contact with the Maltby Center or FACSfla. It appears that the mother did receive a call from Ms. Jani on or about October 5. She did not take the call but texted Ms. Jani and told her to talk to her counsel.
Father's contact with F.M.
145The father called F.M. on a few occasions over the years as a conduit to getting information to or about the mother. As noted above, he tried to use her to convince the mother to move to Kingston. F.M. gave evidence and she said that the most recent contact was around October 13-15, 2021 when the father called her after reading her affidavit filed for this trial. F.M. said that she initially ignored the father's frequent calls, but finally picked up when her husband complained. She said the father was angry and tried to convince not to support the mother in the upcoming trial.
146The father told F.M. that the mother was lying to her. He said that the mother had illegally gone to Indonesia, and that she had made arrangements to have S.S. engaged to an Indonesian boy. It was apparent at the trial that that the father thought it was the "smoking gun" (not his words) that would prove that the mother's Muslim religion would cause her to do things that were not in the child's best interest. The evidence simply showed that the mother's family bought S.S. a ring that was similar to a ring the son of one of the mother's friends was seen wearing in a Facebook photo. The father, who was obsessed with gathering negative information about the mother, jumped to a conclusion about child betrothal because it fit the narrative he wanted the court to receive.
147F.M. insisted on speaking to S.S. during this call as the mother had not seen her or heard anything about her since the disastrous attempt at an exchange on September 25. The child was put on the phone and she was very tearful. F.M said she tried to distract her by talking about happier things like school and her pet rabbit, but the child was very upset.
The October 26 visit
148The mother had not seen S.S. since September 18. The father the child and A.M. stayed with A.M.s aunt in Milton for the trial. As the attempted exchange on September 25 had resulted in the child's refusal to see the mother no parenting time had been arranged for the trial period.
149It was clear that I would need to reserve my decision and it was in the child's best interests to return to Wolfe Island following the trial so she could attend school. By October 26 I had heard the evidence of the father, A.M. and the mother. The remaining witnesses were the mother's friends A.T. and F.M. both of whom knew the child well.
150By October 26 I knew that the mother did not pose a threat to the safety of the child. There was no time or resources to arrange for an objective supervisor of the mother's visits. I had received evidence that the child had been successfully exchanged between the mother and A.M. during the lockdown. In order to arrange a visit and to be able to get some recent evidence of the mother-child relationship, I ordered that a visit take place at a McDonald's restaurant close to the courthouse. The child was to be brought to the visit by A.M. and the father was not to be present. The mother was to have either A.T. or F.M. receive the child from A.M. and that person would remain for the visit. If the child was successfully dropped off A.M. was to leave the restaurant and to return in an hour. The visit supervisor would then give evidence immediately after the visit and the father would be permitted to recall A.M. if he felt that the mother's friends account was not accurate.
151A.T. was called to give evidence immediately after the scheduled lunch visit. As noted above, the child considered her an "aunty" as she had been her babysitter from October 2020 to April 2021.
152A.T. said that she was waiting at the McDonald's and A.M. approached carrying S.S. She said that the child's eyes light up and she looked happy to see her. A.T. told S.S. that she could have lunch with her mama. The child looked at A.M. and said she did not want to do that. A.T. asked A.M. to put the child down and she told the child that she would sit with her. Her mama had gone to get the food and she could sit at a different table if the child wanted. A.M. then left and A.T. spoke to the child.
153In the circumstances I allowed A.T. to paraphrase what the child told her. She said that she lives in a house in the trees and she feels scared when it is dark. She then told her aunty that my mama was angry and was going crazy before and she did not know why. She said she felt safe with A.T. She said that her papa had said that her mama is a bad person. By then the mother had brought back the food and the child was comfortable with her sitting at the same table.
154A.T. then said that the child said she misses her mama a lot. As the child kept talking the mother asked if she could have a hug. The mother and child hugged. The child then said that she does not really think that her mother is a bad person as she is a good person.
155The visit ended well and there were no issues with the exchange between A.T. and A.M.
156The father's counsel declined the opportunity to recall A.M. I recognize that A.M. could not speak to what happened inside the restaurant, but at least there was no dispute about the initial refusal of the child to attend and then a successful exchange after the visit.
157After I heard this evidence I told the parties that the child was to be exchanged between A.M. and A.T. at the lobby of the mother's apartment building the next day at 7:00 p.m. and that she would be picked up by A.M. there on October 31 at noon. The father, A.M. and S.S. could then return to Wolfe Island where the child would be back in school on November 1. When I reminded the parties of the arrangements after the trial ended on October 27 the father said that he had spoken to the child and she only wanted to go for two overnights not four. I found this comment to be illuminating and it reminded me of the comment attributed to the child by the therapist at the Maltby Centre who said that the child told her in the presence of her father and A.M. that she did not want to go for 7 days. I find that these very specific references to time allegedly made by the chid are evidence that the father has coached the child.
Father's plan for the child
158The father said that the child has primarily resided with him since S.S. was placed in his care by CAST after the mother was charged with assaulting him on January 16, 2018. The father said that he and his spouse A.M. have looked after all of S.S.’s needs.
159The father and A.M. rented a house in Brampton and in September 2021 they registered S.S. in St. Anne's the local Catholic elementary school for J.K. After they moved to Wolfe Island in August 2021, they registered here in Sacred Heart Catholic school. S.S. attends by bus. A.M. does not work outside the home, so she is able to care for the child both before and after school. The father stated that he does not work weekends and is usually home on at least one weekday. He does leave the home at around 5:00 a.m. and does not return until 9:00 or 10:00 a.m. on the days when he is driving.
160Mr. Fejes' written submissions addressed the proposal in the father's affidavit for parenting time with the mother. He proposed that she have two out of three weekends and equal parenting time during the summer and the school holidays. I note that Mr. Fejes' referred to the proposal in the father's July 18 affidavit made before he moved almost 4 hours away from the mother's home. The father has driven the child to Brampton three times since his move- August 28, September 11, and September 25. The child was very upset after the last two long drives. There was no specific proposal for a regular parenting time schedule other than the father's proposal to pay for a year's rent if the mother relocated to Kingston.
161The father stressed the stability of his relationship with A.M. and the fact that they were both permanent residents of Canada whereas the mother was not. The father sought a sole decision-making responsibility order.
Mother's plan for the child
162Ms. Ozor stated that the mother has maintained the same residence since 2015. She said that the chid was unilaterally moved by the father to Wolfe Island without notice to the mother. The father's proposal that the mother leave her job, her home and all of her friends in the GTA to move to Kingston to facilitate her parenting time demonstrates that the father puts his own interests ahead of the interests of the child.
163The mother's home has been the one constant in this child's turbulent life. The child has many friends in the apartment building and the mother has good supports there including A.T. who has became an "aunty" to S.S. over the time she has cared for her when the mother was working. A.T. confirmed that she is ready willing and able to assist the mother with child-care as necessary. She does not work weekends and she is home from her work before the mother arrives home on Mondays, Thursdays and Fridays.
164The mother has shown that she is able to arrange schooling and child-care. S.S. attended a summer camp run by Yorkwoods P.S. in August 2020 and the mother had attended at the school to register for the 2020-21 year. As it happened, the father had the child in the first week of September 2020 and without notice to the mother he registered her in the Catholic school in Brampton. The mother, with the assistance of A.T. on mid-weekdays when she was working, ensured that the child attended online school when that became available in February 2021.
165The mother tried to register S.S. in the local Catholic school, which is only two blocks from her home. She was told that she could not register because she is not Catholic. Although the mother is of the Islamic faith, she actually attended an internationally run Catholic school growing up in Indonesia. As the child's father is Catholic and as the child has been attending Catholic schools in Brampton and Wolfe Island that decision made at the school will likely be overturned by the Catholic school board.
166Both elementary schools are close to the mother's apartment building and both link into the subsidized before and after school program run by the City of Toronto. The mother does not require before school care as she does not need to leave for work until 9:15 a.m. on the three school days that she works. She can pick up from the after-care program as late as 7:00 p.m. If she is running late, she can arrange for someone else like A.T., or another parent in her building, to pick up.
167Ms. Ozor submitted that the child's primary residence should be in the GTA. She did not make any specific proposals for parenting time if the father remained on Wolfe Island. She simply submitted that parenting time would necessarily be video calls and holiday time unless the child moved back to the GTA.
168Ms. Ozor addressed the mother's immigration status. She is still on work permit and her permanent residence application was denied due to her conviction for a violent crime (the assault with a knife in 2018). There was Pre-Removal Risk Assessment ("PRRA") completed in 2021 and the assessment officer found that there were no grounds of risk of harm to the mother if she were to be removed from Canada to Indonesia. The mother appealed the ruling and the Federal Court overturned the assessment officer's decision and the court referred the matter to a different officer for a new assessment of risk.
169The other immigration application is the application for permanent residence status on H and C grounds. That application is still before the Immigration and Refugee commission.
THE LAW WITH RESPECT TO PARENTING ORDERS
170This matter began in 2018 with claims for custody and access. The law changed on March 1, 2021 with the amendments to the Children's Law Reform Act. The relevant sections with respect to parenting orders are set out below.
Parenting order, application by parent
21 (1) A parent of a child may apply to a court for a parenting order respecting,
(a) decision-making responsibility with respect to the child; and
(b) parenting time with respect to the child. 2020
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
- In considering the impact of any family violence under clause (3) (j), the court shall take into account,
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve 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.
171The amendments to the CLRA also include ss. 18(2) which contains an expansive definition of what constitutes family violence. It reads as follows:
"Family violence"
18 (2) For the purposes of the definition of "family violence" in subsection (1), the conduct need not constitute a criminal offence, and includes,
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and the killing or harming of an animal or the damaging of property.
THE LAW WITH RESPECT TO RELOCATION
172As noted above, the father relocated from Brampton to Wolfe Island just prior to the anticipated trial in September 2021. The trial was adjourned on consent to the October sittings. Notwithstanding, that the father said he had been contemplating the move since 2019 he admitted that he did not tell his counsel of his plan until the time of the move. The father, and his counsel, said that they were unaware of the amendments to the CLRA in s. 39.3 and 39.4 that set out a complete code for relocation situations. The portions of that code that are relevant to this factual situation are set out below.
Relocation
39.3 (1) A person who has decision-making responsibility or parenting time with respect to a child and who intends a relocation shall, at least 60 days before the expected date of the proposed relocation, 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.
Notice requirements
(2) The notice shall be in the form prescribed by the regulations or, if no form is prescribed, shall be in writing and shall set out,
(a) the expected date of the proposed relocation;
(b) the address of the new residence and contact information of the person or child, as the case may be;
(c) a proposal as to how decision-making responsibility, parenting time or contact, as the case may be, could be exercised; and
(d) any other information that may be prescribed by the regulations. 2020, c. 25, Sched. 1, s. 15.
Authorization of relocation
Best interests of the child
s. 39 (4) (3) In determining whether to authorize the relocation of a child, the court shall take into account the best interests of the child in accordance with section 24, as well as,
(a) the reasons for the relocation;
(b) the impact of the relocation on the child;
(c) the amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child's life of each of those persons;
(d) whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement;
(e) the existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside;
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses; and
(g) whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance. 2020, c. 25, Sched. 1, s. 15.
Factor not to be considered
(4) In determining whether to authorize a relocation of the child, the court shall not consider whether, if the child's relocation were to be prohibited, the person who intends to relocate the child would relocate without the child or not relocate. 2020, c. 25, Sched. 1, s. 15.
Burden of proof
(5) If the parties to the proceeding substantially comply with an order, family arbitration award or agreement that provides that a child spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child. 2020, c. 25, Sched. 1, s. 15.
173In this matter there had been a primary residence order in favour of the father made on September 11, 2018 when the mother only had supervised contact with the child. There was no determination of temporary custody (as it then was). The parties have had a series of court orders that have provided for alternate week time sharing since February 21, 2020. The primary residence order was not specifically set aside, but it was not referred to in any of subsequent orders that provided for an equal sharing of time. The trial in this matter was adjourned on consent on July 21, 2021 without any reference to the father's move. The father took the child to his new residence in mid-August without providing any notice to the mother of the move. This trial for a final parenting order began on October 22, 2021.
174The relocation code set out in s. 39.3 and s. 39.4 has been referred to as it applies to all moves made post March 1, 2021. However even if the CLRA had not been amended the unilateral move of the child's residence almost four hours away just prior to trial would have been scrutinized under the common law.
175It should be noted that prior to the amendments the law with respect to the relocation of a child was set by Gordon v. Goertz, 1996 191 (SCC), 1996 19 R.F.L. (4th) 177 S.C.C. The test was whether the move was in the best interests of the child. There was an entire body of case law that had developed with respect to when a parent could move a child's primary residence and when they could not. Until the amendments the law set by Gordon was that the court could not consider the reason for the move. Post-amendments, the reason for the move is a significant factor.
176It is important to note then that before March 1, 2021 the provision of some notice before a proposed move of the child's residence was required. Furthermore, this court had jurisdiction to order that a child be returned to the residence where they lived prior to the move or to make an order that the child reside with the non-moving parent.
177As noted, the father did not provide any notice of the move. This Application was issued long before the amendments, but the amendments do apply to ongoing matters. As the court order provided that the parties were to have alternate week parenting time with the child the father bore the burden of proving that the relocation would be in the best interests of the child.
178The Ontario Court of Appeal in Moreton v. Inthavixay, 2021 ONCA 501, stated there is no absolute rule or requirement that the issue of custody must be determined before the issue of relocation. Rather, the sequence depends on the circumstances of the case and the best interests of the children. In this matter, there is a temporary order in place for alternate week time and the matter was on the trial list for a determination of final decision-making. The father's move just prior to trial effectively blended the mobility issue with the decision-making and primary residence issue. I find that it is important though to specifically address the move under the rubric of a relocation issue. Doing so highlights the degree of control that the father has asserted throughout this litigation when he knew, or should have known, that his unilateral decisions were not authorized by law.
179There are two other recent Ontario cases that address moves that would have been similar in their impact upon the parenting time arrangement as the father's move in this matter. In Cote v. Parsons, 2021 ONSC 3719, the court dismissed a motion to change by a father to move with two children from Kingston to Kitchener. The parties had a joint custody/shared parenting arrangement.
180In Hebert v. Hebert, 2021 ONSC 3552, the court applied Gordon v. Goertz, modified to consider the reason for the move as set out in the amendments to the Act. The court found it was in the best interests of the children to maximize contact with both parents. The court did not permit the proposed move from Ottawa to Coburg.
ANALYSIS OF THE PARENTING ISSUES
181I will approach this matter by considering my factual findings in this matter under and the under the heading of the relevant best interest factors.
182Both decision-making responsibility and parenting time are parenting orders that can be made under s. 21 of the Act. Sub-section 24 (1) states that the court can only take into consideration the best interests of the child. Sub-section 24(2) sets out that the primary consideration is the child's physical, emotional and psychological safety, security and well-being.
The primary consideration
183Taken as a whole, the evidence shows that S.S. has a strong and loving relationship with both of her parents. The serious conflict between the parties that existed even prior to the separation has led to S.S. being put into a loyalty bind that has always been there but has been exacerbated on a few occasions to the point where there was real risk of emotional harm to the child.
184When the child was an infant when she was primarily cared for her by her mother. She lived exclusively with her mother from May 2017 to January 16, 2018. When the mother was charged with assault. From then until October 8, 2019 the chid lived exclusively with the father and the mother only had supervised contact with her. Both parents then had long periods of almost exclusive time with the child in the first three years of her life.
185Since the order of October 8, 2019, the child has spent blocks of time in each parent's home. I find that the most relevant period to review is after that equal parenting time order.
186The mother has never alleged that the father is incapable of caring for the child. Her position at trial is that the father's spouse, A.M. does almost all of the parenting at his home. The mother has not complained to any third party about the care the child has received when not with her. By way of contrast the father has made a number of allegations about the mother's inability to care for S.S. He has called the child protection authorities and the police. He made claims that the mother's home was filthy and unsafe, and he has stated that the mother is angry and violent and expressed concerns for the safety of the little girl. None of the father's concerns were verified.
187I find that both parents and their respective support systems A.M. for the father and to a much lesser degree A.T. for the mother have provided appropriate and loving care for the child. I note that all third party documents from the child protection authorities, the supervised access centre, the physicians involved in the child's care, and the therapist who saw the child on September 29, 2021 have described the child as cute, happy, and intelligent. Both parents and their supports agreed with such an assessment. Apart from the anxiety and insecurity arising out of intermittent periods of crisis created by her parents S.S. is a well-adjusted child. If her parents could repair their very dysfunctional parenting relationship this child should do well in life. If not the prognosis for her emotional well being is more guarded.
188I find that S.S. needs both of her parents to be actively involved in her life. I find that that was the status quo prior to the father's ill-advised decision to move to Wolfe Island. The primary consideration in the best interest tests calls for an order that will permit the child to see both parents fairly frequently without the loyalty test that she currently feels by being transferred directly from one to the other. This child should not grow up being exchanged between two parents who cannot communicate at a police station. She deserves better from the people she loves.
The history of care
189As noted, I find that the relevant period in the history of care is that period after October 8, 2019. The father strongly opposed the mother's motion for unsupervised parenting time. He relied heavily on the January 16, 2018 assault to try and show that she was too angry and irrational to care for a child. In fact, as the notes from FACSfla show even in September 2021 the father presented to a child protection society and a child therapist that he had "custody" of the child because the mother was convicted of assaulting him with a knife.
190I find that the father is convinced that what occurred on January 16, 2018 completely disqualifies the mother from ever having a significant parenting role in the child's life. The evidence shows that the father has denied parenting time to the mother at every opportunity. This denial of time resulted in the child spending far more time at the father's home being primarily cared for by his spouse A.M. then she spent with her own mother.
191I find that the father was completely unreasonable when he refused to return the child to the mother on January 3, 2020 because of a typographical error in the order. He knew that he had the child on the mother's time but relied upon the fact that the police could not enforce the order. As parenting time is the right of a child the father denied his daughter the opportunity to see her mother from December 27, 2019 to February 22, 2020. In that time frame he unreasonably failed or refused to tell the mother that the child's leg had been broken even though he was in court with the mother on February 21, 2020 the day before he finally returned her based upon a new court order.
Denial of time- first lockdown
192I find that the father denied contact with the child again when the COVID 19 pandemic led to provincial lockdowns. There was a court order for an alternate week schedule. The father withheld the child from the mother from March 18 to July 25, 2020. He did this even though he was specifically directed by the endorsement of Justice Khemani of April 21, 2020 to continue with the court ordered parenting time if both parents were observing COVID protocols.
193There was no direct communication between the parties. We now know that the mother had been laid off work at the start of the pandemic and did not return until the late summer of 2020. The father's work history during this time is less clear, but he was a truck driver and he was trying to work during all of this time. I find that the father simply used the provincial lock-down as an excuse not to have the mother see the child. In so doing he did not act in the child's best interests.
194The mother was no doubt extremely frustrated with the father's actions and this caused her to make an error in judgment during the first lockdown. The mother admitted that eventually the father proposed video contact through FaceBook. The mother rightly concluded that video contact was a poor substitute for in person time. The father was not complying with the court order. However, given how long the lack of contact became the mother should have accepted video calls on a completely without prejudice basis so her daughter could see and talk to her. It was not fair to the child to go so long without any contact.
195The mother's stubbornness in holding out for a resumption of in-person contact would have caused 3.5-year-old S.S. to wonder why her mother was not seeing her. This left the father in a position to control the narrative with the child, and clearly, he had no interest in reassuring the child that her mother loved her and wanted to see her. I note that the only effort at contact was made by A.M. She was with the child all of the time and she called the mother because the child was desperate to talk to her.
196I find that it is completely understandable why the mother kept the child from July 25 to September 4 after going so long without seeing her. In effect the mother benefitted from the July 31 court date being adjourned without a renewed schedule. As both parties had counsel there is absolutely no excuse for a failure to arrange a parenting time schedule that was in the child's best interests during this pandemic. At every instance the parties waited for the court to make an order. In the father's case actually making the order was not enough. The order needed to be capable of being enforced.
Mother not informed about school
197The debacle at the end of the summer in 2020 led to the father again acting like he was the sole custodial parent. He had a temporary order for primary care made when the mother's parenting time was with the PCAS. Based upon this he felt entitled to register the child for J.K. in the Catholic school system without even contacting the mother. Both parents knew their daughter should be in school. The mother had planned to register her in public school in Toronto near her home. The father registered the child in Brampton even though he knew that the mother could not drive and had no access to a vehicle for anyone else to drive her. He knew the mother could not get her to school on her week. He takes credit for providing for the child's education and blames the mother for the child not attending on her weeks.
198It is true that the efforts of the father and A.M. resulted in S.S. going to school every other week. It appears that the fight for control between the parents precluded any discussion about whether it made more sense with an alternate week schedule to have the child attending a school two blocks from her mother's home. As the father is a truck driver and A.M. also has access to a car it was at least possible for the child to attend school each week if she attended school near her mother's home.
199Not only did the father create a situation where the child could not attend school regularly, he did not even tell the mother she was even in school. The mother returned to work and beginning in October 2020 A.T. was able to give the child 3 hours of one on one educational activities in her apartment or the child's apartment.
200When school moved online in February 2021 the Brampton school contacted the mother and she found out for the first time that her daughter attended there. That school provided the link for the mother to ensure that the child was able to attend virtually on the mother's time.
Denial of time- third lockdown
201The pandemic then created another challenge and the father once again failed. At the time of the third lockdown he kept the child from April 3 to May 8, 2021 There was no excuse for this. The father just took advantage of the provincial lockdown to grab more time. This is another example of the father's sense of entitlement. Unless he was required by an enforceable court order, he was not going to let the mother spend time with the child. Once again, the mother was laid off from work and was home alone. The father was driving a truck and A.M. was looking after the child.
The father's move
202The father then decided to move to Wolfe Island near Kingston and made the move in mid-August 2021. He did not even consider the impact of the move upon the child's relationship with the mother. He did call the mother's friend to make his proposal for her to move to Kingston. Based upon the history, I find that he was not motivated to do this so the mother could see the child more frequently and be more actively involved in her life. I find that the father was simply motivated to eliminate the need to drive to Toronto to exchange the child every week.
203One of the reasons that the father gave for his move was that Kingston was in the middle of the Montreal -Toronto corridor trucking corridor. The father said he wanted to drive for IFS so that he could just drive Canadian routes and be home every night. He admitted though that he could not control the routes he was given. He also filed a letter from his former company that said he was home every night when he worked for them.
204The father filed a spreadsheet that set out his trips for IFS for the period July 1 to September 16. That schedule showed that he only had one week when his trip was exclusively in Canada. The rest of the time he drove into the United States often to Illinois and also to Pennsylvania and New Jersey. With his current schedule he cannot be home every night. It is noted that the father begins each trip by picking up a load in Brampton. The trip ends with him delivering a load to Brampton. If he continued to live in Brampton, he would be home. Having moved he has to make the 3.5-hour trip to Wolfe Island to get home only to go back to Brampton for the load to begin his next trip.
205A.M.'s evidence was that the father left the home at 5:00 a.m. on days he was working and did not return until 9:00 or 10:00 p.m. She said he is home every weekend and one or two weekdays. The father is actually less available to the child than the mother especially after his recent move.
206The father takes the position that the child has resided with him far more that she has resided with the mother. He has asserted to the child protection and school authorities that he is the custodial parent. I find that the father cannot make himself the primary residence parent by denying time to the mother. If the father had complied with the court orders made since October 18, 2019 the child would have resided with each parent equally since then. The father cannot be rewarded for not complying. I find that the history of care does not support the father's position. The reasons for the father having more time with the child which include his arrogance and entitlement are relevant to some of the other best interests factors.
Need for stability and strength of relationships
207This child needs stability. The mother has had the same apartment from the time she was born. She has had the same work schedule for some time. The mother is not working on Tuesdays, Wednesdays and Saturdays. She has an excellent relationship with her employer and said that her schedule is flexible, and she could get every second Sunday off if the child is with her. She has proven to have been able to provide for good care during the time she is at work by her friendship with A.T. and by registering the child in summer school. She has already made plans for the subsidized after school care available to children attending either the Catholic or public school near her home.
208The father is in a stable relationship with A.M. and she has formed a warm and loving bond with the child. There is no doubt that the child spends most of her time with A.M. when at the father's home.
209The father has worked for a number of different companies over the years. He has only worked for IFS since July and he has only lived in his rented home since August 2021. I find that of the two parents the mother has led a more stable life and is unlikely to change that as S.S. grows up. The father is somewhat restless, and his new trucking work may or may not develop into a steady stable routine of Canadian routes that will allow him to spend some weekday evenings with his daughter. It appears that for the foreseeable future if the father has S.S. with him on weekdays that S.S. will be primarily cared for by A.M.
Immigration status of the mother
210With respect to the stability factor the father emphasized that the mother does not have permanent residence status in Canada whereas he and A.M. do have that status. The mother has been living and working in Canada since 2006. She first applied for permanent residence status before she even met the father. She has only returned to Indonesia twice in all of that time. The first time was in 2010 to marry a man she met in university. She filed a joint application for permanent residence status with her husband. He visited for a week in 2011 and then decided not to move here. She then went to Indonesia with S.S. in 2017 in order to try and obtain a divorce so she could withdraw the application made with her Kuwaiti based husband.
211The mother's application for permanent residence status was denied based upon her conviction for assault with a weapon that arose out of the January 16, 2018 incident with the father. The mother entered a guilty plea the following year and received 18 months probation which has been completed. She was charged with breach probation in January 2020, but the charge was withdrawn. I do not know the specifics of that charge, but I do note that the father made reports about the mother on a number of occasions during this bitter litigation battle.
212The mother's best chance to obtain permanent residence status is her application on H and C grounds.
213The father came to Canada in 2012. After he separated from the mother in November 2017, he married A.M. in February 2018. They obtained permanent residence status in February 2021. Based on their evidence they were successful in getting this status as the father is the parent who had primary residence of the child S. S. who is a Canadian citizen by virtue of her birth in this country.
214I find that but for the criminal conviction the mother would likely have been granted status by now. The child has only ever lived in Canada and is doing well here and is very close to her mother notwithstanding the recent loyalty conflicts arising out of the father's move.
215The mother was convicted of a violent crime. I do not have access to the police report or the facts that were admitted at the time of the guilty plea. I do; however, find that the offence was out of character for the mother. She has otherwise led an exemplary life in Canada -she even received a police commendation for saving an infant's life.
216I find that the context of the offence is relevant. The mother had a child with the father. She went to Indonesia with the baby when the father insisted that she do so to obtain a divorce from her first husband. The plan was for the father and mother to apply for permanent residence status together. While she was gone the father began a new relationship with A.M. He moved all of the contents out of their joint apartment. He did not tell the mother of the new relationship or that he left the apartment.
217A few months later in November 2017 the father picked the mother up at the airport drove her to the empty apartment and said he was leaving her. She found he had moved in with his new girlfriend A.M. She was distraught. She tried to reach out to him for an explanation of his actions, but he ignored her. She finally got him to come to her apartment under the pretense that the child was ill. She demanded that he end the relationship with A.M. and return to her. He refused. She became very angry. She picked up a knife and a struggle ensued. The father sustained superficial cuts from the knife but was injured when she bit him in the chest. He refused medical attention at the time but did receive a tetanus shot the next day.
218The mother entered a guilty plea to the charge. She took courses in anger management and she has never offended again. The mother has been described by her friends as a gentle, loving and generous woman. She has become upset with the father when denied parenting time, but she has not been violent with him or anyone else.
219I recognize that this court has no control over the immigration authorities and that the mother could possibly be deported from Canada to Indonesia. Given that the father was granted permanent residence status because of his role in S.S.'s life I find that it would be travesty of justice if the child's more responsible and engaged parent was deported and unable to raise her child in Canada.
Willingness to support the child's relationship with the other parent
220The evidence in this matter shows that there has been a complete lack of both communication and co-operation between the parties.
221After her return from Indonesia the mother admitted that she did not facilitate the father's contact with the child. She came home ready to resume a family life. She arrived to find that the relationship was over. She said that the father refused to tell her where he lived. The child had no visits with her father from her return from Indonesia in November 2017 until the January 16, 2018 incident. In all of the circumstances I find it difficult to fault the mother for this lack of contact although I appreciate that the father did want to see his child after she had been away for six months.
222I find that after January 16, 2018 it was the father who completely failed to support the mother's relationship with the child. He took advantage of every opportunity that he could to deny parenting time to her. The mother only did this once and that was in August 2020 when the father had overheld the child for five months after the first lockdown. There was no specific schedule in place and the mother kept the child for a little over a month.
223I do not accept the evidence of the father that the mother made negative comments about his or his spouse to the child. I do accept the mother's evidence and that of her friends A.T. and F.M. that they observed the mother encouraging the child to go with the father when her parenting time with the mother ended.
224The father and A.M. also said that the child did not want to leave their care to spend time with the mother. It may well be that both parents are telling the truth about the young child's statements and behaviours. I have found that S.S. loves both of her parents and enjoys her time with each of them. It is quite common for a young child of separated parents to not want to leave one home to go to the other. It is also quite common for that child to quickly adjust when they are reunited with the other parent and to be reluctant to leave that parent.
225The weekly exchanges of the child were probably always difficult especially for the child as she likely would have sensed that this was a tense and uncomfortable time for the all of the adults involved. The exchanges went from uncomfortable to chaotic after the father moved.
226The father made the move to Wolfe Island for financial and lifestyle reasons. Either he did not think of the impact that the move would have on the child or he calculated that the court hearing would result in an order that he would have sole custody (as he would view it) and the ability to dictate the mother's time with the child. After he had already committed to the move, he called the mother's friend F.M. with the proposal that the mother move to Kingston. The father must have realised that the mother would never agree to move but figured that by making the offer to pay for a year's rent he could not be blamed if she chose not to move closer to her daughter's new residence. This would be consistent with his trial position at trial that it was the mother's fault that the child did not see her during the five-month lockdown because he made an offer of video access which she rejected.
227The father did not even bother to come up with a plan for the mother's parenting time after the move. His counsel simply repeated his pre-move proposal of the mother having two out of three weekends. Such a proposal did not give any consideration to the realities of the situation. It is a four-hour trip each way so regular weekend visits for a young, but school age child cannot possibly be in the child's best interests.
228I do not find that it is a coincidence that the child started telling third parties negative things about the mother after the move. I find that the child was encouraged by the father, and possibly by A.M., to view the mother negatively. It is quite likely that the long drive contributed to the frustration and upset of the child at her arrival for exchanges but there is evidence that the father intentionally took steps to make the child state that she did not want to visit.
229I note that the father tried on other occasions to get evidence that would reflect negatively on the mother instead of doing something that would be in his daughter's best interests. On January 16, 2018 he took out his phone and took photos of the mother when she had a knife in her hand. Those photos were given to his lawyer but not produced in evidence. One wonders how threatened he felt if he could have the presence of mind to gather evidence.
230The father also went outside to take photos of an Uber driver and a car without a car seat. These photos were introduced as evidence of the mother's alleged negligence. He would not come outside about thirty minutes later when the mother arrived in another Uber with a car seat to collect the child. By that time, he had already called the police. He was more interested in getting evidence in the form of a police report of her negligence than ensuring that S.S. had a visit with her mother.
231The father also called the child protection authorities and both the Toronto and Peel police with completely unfounded allegations that the child was unsafe and/or living in an unhygienic home. I find that he did this in order to try and gather evidence for this litigation. The father's allegation as to the state of the home contrasted sharply with everyone else's observations of the mother as a person who maintained an immaculate home. I note that the only uncontradicted evidence of a filthy home was the mother's description of the father's Pickering home before the child was born.
232The father was also very meanspirited in intentionally denying the child time with the mother on the child's birthday. In 2020 the child was to be exchanged on December 28 and the father did not attend for the exchange. He claimed he did not show up because the mother was late in arriving on Christmas Eve (which she denied) so he went home and did not get the child until Christmas morning. I have to note that the mother has to take a two-hour bus trip from her home to a central Brampton police station to pick up the child (and then a two-hour bus trip back). I find that the father was more interested in punishing the mother for being late on Christmas Eve than he was in ensuring that his daughter could see her mother on her birthday in 2020. I note that the child did not see the mother on her birthday in 2018 or 2019 either so she will definitely be with her on her 5th birthday in 2021.
233The evidence demonstrated that the mother has overcome her anger with the father and by extension with A.M. The mother successfully exchanged the child with A.M. in the winter of 2021 in the lobby of her apartment building until the father unilaterally suspended parenting time on April 3, 2021. The mother is aware that the child calls A.M. "mommy" If she questioned the child about this when it first happened, she has now accepted it. She has accepted that A.M. has had a significant role in her daughter's life, and she is now quite fine with her daughter referring to her as "mama" and the father's spouse as "mommy". Given all of the background to the father's relationship with A.M. this shows that the mother is clearly willing to put her child's needs before her own emotional needs.
234I find that there is a significant amount of evidence that supports a conclusion that the father does not support the child's relationship with the mother.
Family violence
235The March 1 amendments to the CLRA have placed a new emphasis on family violence and provided a much wider definition of what it encompasses.
Violence by the mother
236The assault with the knife for which the mother was convicted was serious. The then one- year old child was in the apartment when the argument escalated, and the mother picked up a knife and tried to stab the father. I must consider this incident when evaluating the mother's ability to parent the child in a home that is free from violence.
237While picking up a weapon in the presence of a very young child can never be excused there is some explanation for the mother's actions in the circumstances of her return to Canada with their baby and her abandonment by the father. The father refused to talk to her. She felt betrayed and wanted to confront him.
238The father's evidence was that the knife attack was just the worst example of something done by a woman who was constantly angry and aggressive. He claimed that she was angry and irrational prior to leaving for Indonesia in May 2017. Notwithstanding this, the father either demanded that she go (her version) or acquiesced and enabled the trip by buying the tickets (his version).
Violence by the father
239I find that the totality of the evidence makes it clear that the father exhibited a pattern of coercive and controlling behaviour that had existed since the start of the party's relationship. The mother said she initially felt sorry for the father who was down on his luck after a bitter separation and loss of employment. In the early stages of the relationship the mother rescued the father- cleaning up his apartment, paying off his tickets, paying first and last month's rent on their apartments. The father pursued the mother by constantly coming to her place of work and asking for money. Very early on the mother's co-worker F.M. said she was worried about the relationship. The father was dismissive and rude to the mother. She tried to please him, but he treated her poorly and she did not recognize that until much later.
240The father admitted that he expected the mother, on her minimum wage income, to contribute her share to all joint expenses including rent and household expenses. He claimed that she withheld money from him, and he suspected that she was sending it to her family in Indonesia. The father left the mother after 3 months of living together to return to his former spouse. That relationship ended when he said she falsely accused him of assault. He spent a month in custody before the charge was withdrawn or dismissed (the father said his spouse's statements to the judge did not match her statements to the police which suggests there may have been a trial, but there was no clarification of this).
241The father returned to the mother. He now had two failed marriages and I find that he was determined to control his own life from this point forward. I find that there was coercive control by the father in the relationship as referenced in the s. 24 (4) family violence factors. I am assisted in my finding by the expanded definition of "family violence" as that in ss 18 (2). I find that 18 (2) (f) "psychological abuse" and (g) "financial abuse" apply to the facts of this matter.
Psychological abuse of the mother
242The mother's evidence was that she had never lived with anyone in a relationship before. In the early months of the relationship she thought the father's treatment of her was normal and she said she was happy. She did not share the concerns of her friend F.M. The mother became pregnant just prior to the father leaving for Hungary. The father said he was not happy when he left. He said the mother was angry all the time. He said he did not plan to return to Canada. Clearly his view of the relationship was totally different than the mother’s. The father said he only returned to the mother because she was pregnant.
243The evidence was that after the child was born the father was very upset with the mother. He said she was lazy and either did not know how to care for a child or did not care to do so. The mother said she had a difficult month physically and emotionally after the birth. The father said with some bitterness that he was forced to stay home from work for a month to care for the child. He said the mother was always angry and irrational. He became even more upset with the mother when he found out that she was not actually divorced from the man she had married in 2010 (although by Islamic law he had remarried and was living in Kuwait).
244The father said it was the mother who wanted to go to Indonesia and that she was negligent in note getting a visa for S.S. before she left. I accept the mother's evidence that the father, upset with her for spending money on a lawyer, pressured her to leave the country immediately giving her no chance to get the visa. I note that the father bought the plane tickets. He said that he knew he was going to break up with the mother before she even left. He manipulated her to cause her to leave the country, but he callously and deliberately led her to believe that once she obtained a divorce they would marry and then apply for permanent residence status together.
245At some point in the spring/summer of 2017 the father met A.M. He made the unilateral decision to leave the Jane-Finch apartment. He removed all of the contents. He did not even bother to tell the mother what he had done. He then moved in with A.M. again without telling the mother.
246The father actually testified that he thought he was fair to the mother in that he sent her some money while she was gone. He acted like the family was re-united when he met her at the airport. He then took her directly to Walmart to buy some children's clothes and other necessities. He then dropped her off and the nearly vacant apartment and said he was leaving her.
247I find that the father's manipulation of the mother in the period January 2017 to November 2017 to be unconscionable. I find it was psychological abuse. It led directly to the mother's sense of betrayal and abandonment.
Financial abuse of the mother
248Initially the mother made her own decisions to help the father financially. She loaned him money to pay off his traffic tickets so he could get his driver's license back, she paid first and last month's rent on their first apartment. The father then left her there to pay the rent which she could not afford on her own thereby forcing her to find a student tenant.
249I accept F.M.'s evidence that early in the relationship the father showed up at the restaurant in the mall and insisted that the mother give him money which she did. The mother made minimum wage and the father was a licensed AZ truck driver. The father determined what the mother's financial obligations were and if she did not pay the rent or expenses immediately, he became angry. The father accused the mother on more than one occasion of hoarding her income and sending it to her family in Indonesia. I do not believe that she did that.
250The father left the mother in November 2017 without making any provision for the support or either her or the child. He took her to Walmart. He left her with a bed in a two-bedroom apartment that she could not possibly afford on her own. He forced the mother to pay for all of the child's needs while looking for a tenant that would allow her to stay in her apartment.
251I find that that the father was financially abusive. I find that he used money, or the lack of it, to maintain control over the mother. It may be that early on in the relationship he realized that the mother was naïve about relationships and generous with money and he took advantage of that to manipulate her to help him when it served his interests.
Impact of family violence
252The father strongly opposed the mother's motion for unsupervised contact. Ever since January 16, 2018 he has told anyone who would listen that the child's mother was an angry and violent woman who was convicted of assaulting him with a knife. I find that the father is not really concerned about any risk of physical or emotional harm to the child in the mother's care. I find that the father has used the mother's conviction with all professionals who interact with the family to try and position himself as the responsible caring parent and the mother as an irresponsible parent who poses a risk to the safety of the child.
253The father has also used the mother's bail and probation terms as an excuse for not communicating with the mother in an effective way. His failure to let her know that the child had a cast put on a broken leg during the time he kept S.S. with him from December 27, 2020 to February 22, 2021 is just the most egregious example of the consequences of a failure to communicate. What was also enlightening about that incident was that the mother never blamed the father for the child's injury. The father has never stopped blaming the mother for everything that has gone wrong in his life just as he blamed his former spouse for everything when he first met the mother.
254I find that the father has tried to provoke the mother into becoming angry and upset. He intentionally denied her parenting time on the child's 4th birthday. He denied parenting time in January 2020 because the order had a typographical error. The mother did not over-react to these provocations.
255The father moved to Wolfe Island because in his mind he was the primary parent and he thought he had the freedom to do what he wanted. He did not propose any changes to the pick-up and drop off schedule. This resulted in the father driving the child down the 401 highway, right past the exit to the mother's home and all the way to Hurontario St. in Brampton. The child could have been dropped off at her home about 20-30 minutes before she reached the Brampton police station. Once the child was exchanged the mother had to walk her to a bus stop for a 2- hour ride on more than one bus back to her apartment.
256I do not think it was a coincidence that the child resisted the exchanges after the move. She had a 4-hour car ride followed by a 2-hour bus trip. Since the move the father had persuaded the child that the mother was a bad person and always angry. He was able to manipulate the child as he manipulated the mother over the years. He felt in total control of the parenting dynamic.
257The child would not likely have any memory of the horrible incident when she had just turned a year old. She will have a memory of the blocks of time during the pandemic when she did not see her mother. She does have a memory of the three long car rides to get to the Brampton police station and the chaotic scene that unfolded there. The mother did yell at the father when the child clung to him at the September 11 exchange and again when the child was not exchanged on September 25. It is not surprising that the child told the police officer and subsequently the child protection worker that she did not want to go with her mother. The mother's very emotional reaction to the child refusal may be somewhat understandable, but it was also counter-productive. The child saw the mother in those moments in the way the father had described her. The child was exposed to the mother's anger and it frightened her.
258The father and A.M. thought that the solution was to register S.S. in counselling with a therapist who was alerted to the mother's assault with a weapon conviction. It was telling that the child protection worker thought that the father had custody and that the child was resisting a recent expansion of access to alternate weeks. The father tried to control the narrative and to have the child's refusal confirmed and validated by a child protection worker and/or a child therapist.
259It is interesting that after the child's refusal to attend on September 25 that for the first time in this high conflict case the father asked for the Office of the Children's Lawyer to intervene. He may have thought he could get confirmation of the child's statements, but he must also have known that any such appointment would delay a trial with the child living in Wolfe Island and refusing to see her mother.
260Given the child refusal the court needed to see if it was possible to have the child visit with the mother before the conclusion of the evidence. The October 26 visit would not have happened, but for the close relationship between "aunty" A.T. and the child and the child focused instincts of A.T. She skilfully got the child to leave A.M and enter the McDonald's restaurant. In a matter of minutes, the child was speaking directly to the mother and she ended the visit with a hug.
261I find that the child has been impacted by the coercive control that the father exerted over the mother and that he has manipulated the mother and now the child to suit his purposes.
DECISION WITH RESPECT TO THE PARENTING ORDER
Primary residence and decision-making responsibility
262I find that both parents love S.S. and the child is well looked after in each of their homes. The father will not be able to have extended parenting time with the child without the continued primary parenting role that A.M. provides in his home. The mother has less need for assistance. She is able to care for S.S. in her home by simply accessing after school care three days a week and arranging for a babysitter on the two Sundays out of four that she has to work (she is working every Sunday now, but could change her schedule).
263I conclude from my analysis of the s. 24 best interests factors that it is in the child's best interests that the child primarily reside with the mother, and that the mother have the sole decision-making responsibility for the child.
264I find that the mother is the parent who will provide the most stability for the child. While both parents can individually care for the child, I find that the mother is the parent who is willing to support the development and maintenance of the child's relationship with the other parent. The mother has moved past her anger with the father. She did not blame the father in giving her evidence. She became very tearful when speaking of those difficult times, but she never showed any anger or lingering bitterness.
265There was no evidence that the mother made any effort to try and turn the child against the father. I accept the evidence of the mother's friends A.T. and F.M. when they spoke about the lengths to which the mother went to encourage the child to see the father. I have no doubt that the child wanted to avoid conflict and that often means wanting to stay with a parent rather than going to a tense exchange with the other parent. The simple reality is that due to his denial of parenting time the child ended up spending more time with the father or, more correctly stated more time with A.M., than she did with the mother. The father and possibly A.M. used that time to manipulate the child to the outcome that he wanted. The father has never accepted that the child loves her mother and needs to be with her.
266The father has not put the interests of the child above his own interests. No caring parent would be so cruel as to move a child 4 hours away from the other parent when it was completely unnecessary to do so. The father has yet to learn that he cannot have everything his way. He has yet to learn that he needs to share the child with the mother.
267Both parents can be faulted for their failure to communicate. They need to email each other on a regular basis to exchange important information about the child. They should be sharing photos and report cards and details of medical, dental appointments and extra-curricular activities. I find that the mother will do that as she knows that her daughter will want her father to be actively involved in her life. Based upon the history of ill will and lack of good faith demonstrated by the father, I do not believe that he would share information with the mother if the child primarily resided with him and he had decision-making responsibility.
Parenting time
268The parenting time schedule is dictated by the father's decision to move so far away. If the father lived within a ninety minutes drive of the mother's home, then an alternate weekend schedule could work. An alternate weekend schedule cannot work for a 4-hour drive. I find that even a once a month schedule would be too onerous for regular weekend visits. Wolfe Island is four hours away with one stop and that assumes good weather.
269I find that the child should not miss school for parenting time. I find then that parenting time should be scheduled on long weekends or school holidays. The longest gap in in-person parenting time will be from December 27 to Family Day.
270The father and A.M. are Catholic so they will have the period leading up to and including Christmas Day every year. The mother is Muslim and has not seen the child on S.S.'s […] birthday since 2017. She will have the second week of the school winter break every year.
271The father will have the Family Day weekend, March Break, the four-day Easter weekend, Victoria Day weekend, and Thanksgiving weekend. The only long weekend when the child will definitely be with the mother is the Labour Day weekend as the child prepares for the new school year.
272The parties have had an alternate week arrangement over the last three summers- interrupted as it was by overholding due to the pandemic. The child is used to spending extended blocks of time with each parent and I find that she would benefit from being able to relax in one parent's home for two weeks before facing another long drive. I will set out an alternating two-week schedule for the summer school holiday.
273The placement of long weekends is such that the father will have the child about once a month in the spring and fall. He will half of the summer and two one-week blocks in December and March. I recognize that only one weekend between December 27 and March Break is a long stretch, but it is not in the child's best interests for her to be transported down the 401 highway in the middle of winter for a two day weekend with her father.
274There will be twice a week video parenting time. As the child gets older both parents should let her communicate with the other electronically at all reasonable times.
CHILD SUPPORT
275There was a court order for child support made on September 11, 2018 by which the mother was to pay the father the sum of $266 per month based upon her stated income of $31,200. This order was made at a time when the child was residing with the father and the mother was just about to begin supervised access at PSAP.
276I reviewed the FRO statement of account dated June 4, 2020 filed. There was an accrual on June 1, 2020 and I can only assume that there have been continued accruals to date as there was no specific order terminating the mother's obligation for child support. The mother said that she contacted FRO after the alternate week court order was made in February 21, 2020 to advise them of the new order and request that they not enforce an order that no longer reflected the residential situation.
277I note that there was a diversion of funds to the FRO as late as May 21, 2020. The arrears as at June 1, 2020 were $2,594.13. The father said that there was a point at which monies stopped coming from the FRO. The father's financial statemen of February 6, 2021 set out that the mother owed him child support of $2,594.13. The mother's financial statement of May 18, 20201 showed arrears of $2,500 to FRO.
October 1, 2018 to November 30, 2019
278I find that the mother was required to pay child support to the father based upon the September 11, 2018 order from October 1, 2018 to November 30, 2019. The October 8, 2019 order provided for an equal sharing of time after December 1, 2019 and the terms of that equal sharing became alternate week parenting time after the order of February 21, 2020.
279Therefore, the mother should have paid the sum of $3,724 in the said time frame ($266 x 14 months). The FRO records show that the total sum of $2,991.87 was received. The mother owes the father the sum of $732.13 less any monies received by FRO on her account since June 1, 2020.
280The mother's child support debt to the father shall be addressed by a credit to the father's child support obligation.
Submission regarding December 1, 2019 to November 30, 2021
281The mother's position as set out in counsel's submissions is that as the parties had a court order for an equal sharing of time that began December 1, 2019 and that this was a shared parenting situation. Shared parenting is addressed in s. 9 of the Child Support Guidelines. The mother's position is that s. 9 a) of the CSG should be applied such that there is a set off in the amount to be paid by the father to the mother and vice versa. The mother's income is easy to determine as it is all T-4 and government COVID 19 relief. The father's income is much more complicated as he was always self-employed but also received some government benefits.
282The father did not take a position on child support although his counsel questioned the mother in some depth about her income. This seemed consistent with his expectation that he would have primary residence of the child and the mother would be required to pay him child support.
Father's income
283The father did not file income tax returns ("ITR's") until he was required to do so for this trial. His Notices of Assessments ("N of A") for the years 2017 to 2019 were as follows'
2017 - $20,000
2018 - $28,000
2019 - $17,000
284Despite the fact that this matter has been on the trial list since the winter of 2020 the father has not filed his 2020 ITR. His explanation was that so many things were happening that he did not have time. This is not acceptable.
285The father has made a living as self-employed truck driver. In actual fact, the only part of his job that was like self-employment until 2021 was the fact that he was not designated as an employee of the trucking firms he worked for and no income tax or other statutory deductions were taken from his pay statement. The father drove a company truck on routes set by the company and the company paid for the fuel and maintenance of their vehicle. The father would have some legitimate deductions for his meals while on the road, his fuel/mileage to pick up the truck, some of his cell phone costs and some office costs to account for all of this.
286The father said he established a company V.S. Whiteland Limited in 2014 to use for the invoices/ pay statements he submitted and received from the companies for whom he worked. The father said that since 2019 he worked exclusively for The Hauler Inc. a trucking business located in Brampton.
287The father filed a letter from that company dated February 7, 2020 which seemed more focused on the parenting issues. It said that the V.S. (V.S. Whiteland Limited) was hired as an AZ driver working 40 hours a week spending every night at his home and he was off on weekends.
288Ms. Ozor asked for a letter directed to income. The father filed another letter dated June 16, 2020 from that company which stated that V.S. had worked as a sub-contractor for the company since April 2019. His annual income was approximately $44,300 in 2019. I note that as he started in April that the 2019 income would only be for nine months.
289Notwithstanding this letter, the father filed an ITR for 2019 in which he said he had business income of $20,000 and net income of $17,062.40. It is not clear why the father reported much less income then The Hauler Inc. stated that he earned. I do note that in previous years the father reported very low net income and in very round numbers as noted above. This may be because he filed three years returns together and he did not have good records.
290The 2019 ITR filed was what is often referred to as "the jacket" or summary of the information found in other schedules. The father did not produce his statement of business activities schedule. The N of A for 2019 stated that he owed the CRA $5,525.58 and that included $5,093.28 from his previous account balance.
291It is not clear if the company V.S. Whitehead Limited was incorporated or whether it filed a tax return. The father's evidence was confusing and there were no supporting documents to explain why The Hauler Inc referred to the father by name as the sub-contractor in one letter and V.S. Whitehead Limited as the sub-contactor in the other.
292The father gave evidence that he owed $6,000 in HST to the CRA. As a self-employed contractor he would have to remit HST on the income paid to his business. The father said he could not pay the HST, so he closed V.S. Whitehead Limited. He said he had not used that company in more than two years.
293The father said that to really make money in the trucking business you need to own your own truck. As he owed money to the CRA he decided to put everything in A.M.'s name. The father did not disclose the new trucking business until the trial. He took the position at trial that he did not have A.M.'s permission to provide details about the trucking company that she owned to anyone other than the father's lawyer and the judge. Based upon the evidence that I had heard regarding the father's income being exclusively from his truck driving business and the evidence that A.M. was home all of the time to care for the child I ordered the father to produce the information at trial.
294The father produced articles of incorporation for Build Trans 2000 Inc. The company was incorporated on January 13, 2021. A.M. was listed as the sole director. A letter dated February 22, 2021 from the CRA said that the registration for HST was effective February 17, 2021 and the first tax return will cover the period February 17 to December 31, 2021 and that the HST owed would be due March 21, 2022.
295A.M then wrote a letter dated October 25, 2021 which stated that the company balance at that time was minus $9,500. She said that the father would start receiving income from the business in January 2022 when the company had paid off its debt. The letter said he expected to receive "$4,800 in one month which is $24 per hour for 4 days work". This reference to an hourly rate is odd given that the father's evidence was that he was paid by the mile. He even explained the difference between the mileage rates in the U.S. and Canada.
296It is clear that A.M has been designated by the father to do the accounting for his trucking business. The father said that he incorporated the business because he planned to leave The Hauler Inc. and try and obtain more long-haul jobs with his own truck. He applied to IFS and was put on their routes effective July 1, 2021. The father filed a letter dated September 24, 2021 from IFS Inc. which stated that Build Trans 2000 Inc. owned by V.S. is an Owner/Operator for IFS. It said that Build Trans has been providing transportation services since June 2021 with his own truck.
297The father produced an Excel spread sheet which set out the routes the father had driven in each of July, August and September 2021. The Excel sheet set out the breakdown of the monies received from IFS. The father stated that he is paid every two weeks and IFS deducts his fuel, highway tolls and insurance costs. IFS pays Build Trans by cheque and then Build Trans pays the father.
298The July 1-15 statement showed that the total paid for mileage to Build Trans was calculated to be $9,073.62 and after deductions the net amount for that two-week period was $4,740.59. The father said that his expenses that he will need to pay from the monies received from IFS are tire repairs and maintenance of his truck. There will likely be other legitimate expenses including some monies to A.M. for accounting work, some cell phone and meal costs as described above.
299The reason that A.M. and the father said that he is not making any money yet is because they are taking the approach that all debt and expenses need to be paid before any money can be attributed to the father. This included the cost of the truck which the father said was purchased for $15,000 and upon which he spent $5,000 getting it road worthy. The father did not actually incur consumer debt or interest for this truck purchase. A.M took a college course to become a PSW. She received a government grant/loan of $12,000 to do so and that money was used to buy and repair the truck.
300The father also said that he had trouble getting work during the pandemic and he had to take part time jobs. His income from those jobs was used to support his family and to get a new trucking business established.
301The spreadsheet showed that the father had been paid $14,790.59 from IFS of which $9,739.44 was earned in July alone. The father did not drive many days in August, and he took two weeks off in September.
302The father said that in 2022 he expected to make about $8,000 to $10,000 in gross income per month. This would be consistent with what he earned in July when he was not taking time off. If he earned $9,000 a month that would be $108,000 per year.
303The father said that when he sought work at IFS, he expected to earn about $2,000 a month more than he earned with The Hauler Inc. He also stated that at his former job he could make about $4,000 a month after deductions whereas with IFS he could make $6,000 a month after deductions. The $48,000 a year from The Hauler Inc. where he drove their truck was not too different than that company's statement that he was paid $44,300 for nine months work. I understand the father's statement of $6,000 a month after deductions to mean that he would have an income equivalent to an employee earning $72,000 per year. If he was paid $9,000 a month or $108,000 per year this would mean he would have $36,000 for his truck and personal business-related deductions. If he earned $8,000 a month or $96,000 this would leave him with $24,000 a year for the truck and personal business-related deductions.
304I find that based upon the father's own productions, finally produced at the trial, that he should be imputed to have an income for child support purposes of $72,000 per year.
Mother's income
305The mother filed her second financial statement on May 18, 2021. It did not attach any N of A and her earlier statement filed on April 25, 2019 also failed to include N of A though it attached pay statements. It is not clear if the mother has ever filed an ITR. Pursuant to an order made during the trial she filed her 2020 T-4 statement in court together with her most recent pay statements.
306The mother was ordered to pay child support in 2018 on a "stated" income of $31,200. Her F.S. in 2019 said she earned $25,293 in the previous year. Her 2020 T-4 stated that she earned $27,218. The mother gave evidence that she was laid off in both the spring early summer of 2020 and the spring of 2021. It is not clear what she earned from E.I. or CERB benefits. The mother did acknowledge that she received the $2,000 a month CERB benefit in 2020.
307The mother has worked at the restaurant in the mall since 2015. She now earns $16 an hour for 80 hours in a two week pay period which annualizes to $33,280
Child support decision
Claim from October 8, 2019 to November 30, 2021
308The mother sought a s.9 a) set off from December 1, 2019 forward. I should begin by stating that the child support order should have been addressed by counsel when the time-sharing arrangement changed. I recognize that in this high conflict file there were always more pressing issues to address in court. I also recognize that as neither party filed ITR’s until the father did so in 2021 that there was not a proper record upon which to consider a s.9 order. Even after trial it is not at all clear what the party's incomes have been after the pandemic began.
309I think it is important to be clear that I find that the period from October 1, 2019 to November 30, 2021 has been a period of shared parenting. The father cannot expect the court to consider that he has had the child the majority of the time when that only came to be because he denied the mother the parenting time that she was entitled to by court order.
310I will not make a set off order for this time period because neither party filed adequate information, nor provided clear evidence as to what their respective incomes actually were. I might consider that a self-employed truck driver should earn more than a manager of mall restaurant, but the pandemic does not allow the court to make the usual imputations when disclosure is lacking. There were different government criteria for employed persons than self-employed ones. Some jobs were far more impacted than others. I can conclude from the available evidence that both parties had relatively modest incomes. I can also see from their 2021 financial statements that they managed to live within the income available to them as neither has any consumer debt.
Child support on an ongoing basis
311For reasons stated above I found the father's income to be $72,000 per year which generates a table child support payment of $673 per month. I have made a parenting order that has the child primarily residing with the mother after January 1, 2022. I will not make a child support order prior to that time as the child will be with the father pursuant to my order from October 31 to November 19 and again for the first week of the Christmas school holiday.
312I should note that my order includes alternate week time in the summer, but that will not impact the table support amount during those months. Over the course of the calendar year the child will spend the majority of her time with the mother and the father shall pay the same amount of child support each month no matter how much time he has with S.S. in any given month.
313I have determined that the mother owes the father $732.13 in child support (less any money received by the FRO after June 1, 2020). This amount will be paid by crediting the father with one month of child support deemed to be paid. The mother's arrears of child support shall be reduced to zero. The father shall not be required to pay support for January 2022. Beginning February 1, 2022, he shall pay the sum of $673 per month.
314It is clear from the evidence that the father has not been honest when filing his ITR and has taken steps to avoid creditors. He abandoned V.S. Whitehead and avoided nearly $6,000 in H.S.T. He created a new company for his work and placed it in the name of his spouse and tried to shield the income earned from the mother of his child.
315I find that the father cannot be trusted to file accurate ITR. As a result, I will order that his income each year shall be the greater of the actual amount on his N of A or $72,000. The father will not be able to claim that he actually earns less than that sum if he is not disabled. If the father has a disability that prevents him from earning an income as a truck driver then he can claim a material change in circumstances based upon a disability. Otherwise he will pay $673 per month (except in the unlikely event that his N of A shows a higher income in which case he will pay on the higher income.)
Section 7 expenses
316The mother claimed s.7 expenses in her Application. Given the age of the child and the pandemic there have not been any such costs to this point. The mother will require child- care and hopefully it will be fully subsidized. She will likely register the child in extra-curricular activities. Neither party has an extended health plan available to them. All medical and dental costs including glasses and orthodontic costs not covered by OHIP are s.7 costs.
317The procedure for s.7 costs shall be that the mother shall email the father all details of the costs before they are incurred. He shall respond with any concerns that he has. The mother shall email the invoices/receipts and the father shall pay his proportionate share by the time the money is due, or 30 days whichever period is longer. If the father has not paid within 30 days, the mother may file with the FRO the invoices/receipts together with proof of the email requesting payment and her statement that the monies have not been paid. The FRO shall then add the father's s.7 contribution to the child support to be paid by the father.
318As noted, each party shall pay the share proportionate to their income. As the father's income has been determined to be $72,000 and the mother's $33,280 the father shall pay 68% of the net after tax costs of the s.7 expense.
FINAL ORDER
Mobility
The A.'s deemed request to move the residence of the child from Brampton to Wolfe Island in the County of Frontenac is denied.
The A. shall deliver the child to the R's home in Toronto by Saturday November 20, 2021 at 1:00 p.m. where the child shall be exchanged between the A's spouse A.M. and the R. or her designate in the lobby of the R's apartment building.
Parenting
The Respondent shall have sole decision-making responsibility for the child S. S. born […], 2016.
The child's primary residence shall be with the Respondent.
The Respondent shall be able to obtain and renew a passport for the child and travel with the child inside or outside Canada without the consent of the Applicant. Provided that the R. shall provide the A. with at least 14 days written notice by e-mail for travel outside of Canada. The notice shall include a copy of the return airline tickets and contact numbers where the child can be reached for video calls.
The Applicant shall have parenting time with the child as follows;
(a) every Wednesday and Saturday at 8:00 p.m. by video call if the child is not with him on those days. Provided that the mid-week date may be changed to a Tuesday if the A. is not available on the Wednesday. The A. shall initiate the call. The R. shall ensure that the child takes the call and speaks to the A. During the Christmas break, March Break and the summer holidays the R. shall initiate a call on the said days when the child is not with her;
(b) the first full week of the Christmas school vacation beginning with a pick-up from the after school program on the Friday between 4:00 and 6:00 p.m. and ending with a return to the R.'s home on December 27 at 1:00 p.m. with an exchange between the A.'s spouse and the R. or her designate. The A.'s parenting time with the child in 2021 is from December 17 to December 27;
(c) Family Day weekend each year with pick-up at the after-school program on the Friday between 4:00 and 6:00 p.m. to return to the R.'s residence on Monday at 8:00 p.m. The Family Day weekend visit in 2022 is from February 18 to February 21;
(d) March Break week each year with the pick-up at the R.'s residence on Saturday at 1:00 p.m. and return to the R.'s residence on the following Saturday at 1:00 p.m. In 2022 the pick-up will be on March 12 and the return on March 19;
(e) Easter weekend each year with the pick-up on the Thursday at the after-school program between 4:00 and 6:00 p.m., and the return on the Monday to the R.'s residence by 8:00 p.m. In 2022 the pick-up will be on April 14 and the return on April 18;
(f) Victoria Day weekend each year with pick-up at the after-school program on the Friday between 4:00 and 6:00 p.m. to return to the R.'s residence on Monday at 8:00 p.m. In 2022, the pick-up will be on May 20 and the return on May 23;
(g) Father's Day weekend each year with pick-up at the after-school program on the Friday between 4:00 and 6:00 p.m., and return to the R.'s residence on Monday at 8:00 p.m. (the child will miss school on the Monday); and
(h) Two-week blocks of time in the school summer vacation with pick up at 1:00 p.m. on the Saturday that follows the last day of school and return at 1:00 p.m. on the Saturday two weeks later. The R. will then have two weeks of time and the A. will then have two weeks on a rotating basis until the Saturday before Labour Day at 1:00 p.m. when the child shall be returned to the R's residence if she is not already there. In 2022 the A.'s first block of time begins on Saturday July 2nd.
The A. shall not take the child outside of Canada without the express written consent (by e-mail) of the R.
The Toronto Police Service, the Ontario Provincial Police and any police service with jurisdiction shall enforce the terms of this order under s. 36 of the CLRA.
Neither party shall speak negatively of the other party in the presence of the child or allow anyone else to do so in their presence. Both parties shall promote the child's relationship with the other party at all relevant times.
Each party shall provide to the other through counsel by November 19. 2021 an e-mail address to be used to communicate all important information concerning the child. All emails shall be respectful and shall be responded to within 72 hours. Text messages shall be used for emergency communication.
Child support
The temporary order for child support dated September 11, 2018 is terminated and any arrears shall be rescinded.
a) The A. shall pay to the R. for the support of the said child the sum of $673 per month beginning February 1, 2022 and payable on the first day of each and every month thereafter.
b) The said support is based upon the A's imputed income of $72,000 per year.
c) SDO to issue
d) If the A. fails to provide his N of A to the R. by July 1 of each and every year, he will be deemed to have an income of $72,000 per year. If he does provide his N of A., his income will be deemed to be the greater of the amount shown on his N of A or $72,000.
e) The A. shall not bring a Motion to Change child support without leave of the court. If he is relying on a disability that prevents him from working as a truck driver. he must provide medical evidence of the disability.
- a) The R. shall provide her N of A to the A. by July 1 each year so that the proportionate sharing of s.7 expenses can be determined. Based upon their current imputed incomes the A. shall pay 68% of the child's s.7 expenses.
b) If the R. seeks a contribution by the R. to a s.7 expense, she shall send him an email that attaches the invoice and/or details the expense. If the A. has any concerns about the expense, he shall email the R. within 7 days. No expense may be unreasonably refused.
c) The A. shall pay the said expense before the amount owed is due or within 30 days of the R.'s e-mail whichever is the longer period. The R. shall send the A. proof that she paid the expense.
d) if the A. fails to pay for an expense within 30 days the R. may send the invoices/receipts to the FRO together with any email disputing the expense and she may request that the FRO add the A.'s proportionate share to the child support account.
- The R. may seek her costs of this Application as follows;
(a) by November 26 the R.'s counsel shall serve and file a costs submission limited to 5 pages double spaced together with a bill of costs and any offer to settle; and
(b) by December 6 the A.'s counsel shall serve and file a response to cost submission limited to 5 pages double spaced with any offer to settle.
Released: November 16, 2021
Justice Philip J. Clay