Toronto
Ontario Court of Justice
Endorsement
Justice Maria N. Sirivar
Date
Applicant:
E.M.
x
Present
April 24, 2021
Counsel:
Moldaver, J
x
Present
Respondents:
L.M.
x
Present
Counsel:
Self represented
Present
INTRODUCTION
The matter was before the Court for an uncontested trial. The Respondent Father was noted in default on February 12, 2020. The hearing of the uncontested trial was delayed because of the Covid-19 pandemic.
The proceedings were started by way of Application. The Applicant Mother seeks final parenting orders including supervised parenting time for the Respondent Father, permission to travel and apply for government documentation without the Respondent Father’s consent and a restraining order.
The Applicant Mother relied on the following materials at the hearing:
- Affidavit of Uncontested Trial of E.M. dated February 6, 2020;
- Affidavit of S.M. dated February 26, 2020;
- Affidavits of E.M. dated August 14, 2019;
- Affidavit of E.M. dated September 17, 2019;
- Affidavit of E.M. dated November 12, 2019;
- Affidavit of E.M. dated August 25, 2020;
- Affidavit of J.C. dated August 19, 2020;
- Affidavit of J.S. dated August 25, 2020; and
- Statement of Law and Authorities.
- I also reviewed the Applicant Mother’s Affidavit in Support of Custody and Access.
Temporary Orders
The November 19, 2019 order of Justice Jones (“Temporary Access Order”) provided for supervised access at the home of the paternal grandmother to be supervised by her or a mutually agreed upon third party.
Justice Jones also granted a restraining order dated November 19, 2019 (the “Restraining Order”). The Applicant Mother sought a restraining order against the Respondent Father (on a temporary and without prejudice basis) based on what she deposed was his ongoing verbal and psychological abuse. She was fearful for her safety, and for the safety of the child. The Respondent Father, for instance, sent numerous threatening text messages stating for instance “I want you to have a knife to your fucking throat” and “you deserve to die in agony”.
RELEVANT UNDISPUTED EVIDENCE
- The parties were married on December 22, 2007 and separated on May 14, 2019. They have one child, L.M. born […], 2010. L.M. has Autism but he is high functioning. He has an Individual Education Program at school, and he works with a Special Education Teacher and an Education Assistant. L.M. also attends a program to assist him with social thinking.
Child Protection Concerns
Native Child and Family Services (“NCFS”) began working with the family following reports from the community. On June 13, 2019, a referral was made by a counsellor that had been meeting with both parties. She reported conflict between the parties and emotional abuse witness by the child. She also reported substance misuse (crystal meth) and threats of suicide by the Respondent Father.
A second referral was made to NCFS on July 18, 2019 by an anonymous source after an incident in the home where the Respondent Father was threatening to kill himself by throwing himself over the balcony and the Applicant Mother contacted the police.
The Applicant Mother was told that the Respondent Father’s parenting time should be supervised by a third party. NCFS was concerned for the Applicant Mother’s safety and potential risk to the child.
A third referral was made on November 7, 2019 by the Toronto Police. They were called by security at the family home because the child ran downstairs to the security desk and reported that his parents were arguing.
The child saw psychologist, Dr. Cummings. The Applicant Mother reported that the child had been waking up night screaming because he believed he could hear the Respondent Father crying. The child expressed fear of the Respondent Father returning to the home while at the same time expressing that he missed him.
NCFS verified the following protection concerns:
- adult conflict and verbal altercations between the parents;
- Respondent Father’s substance misuse (crystal methamphetamine);
- Respondent Father’s unstable mental health and recent suicide attempt; and
- Applicant Mother’s judgment in putting the Respondent Father’s needs before the needs of the child.
- Both parents worked cooperatively with NCFS and a plan was developed regarding filing this Application, supervised parenting time and a safety plan to mitigate the child protection concerns. The Respondent Father was to explore treatment options.
Parenting Time
Since the Temporary Access Order was made, the Respondent Father only saw the child on two occasions: November 29, 2019 and in early December 2019. The Respondent Father cried hysterically during the visit and made inappropriate statements to the child about the Applicant Mother and the ongoing court proceedings. For instance, the Respondent Father told the child that he hated the Applicant Mother, that she was going to get him arrested and that the Respondent Father had nowhere to live.
During Christmas of 2019, the Respondent Father requested parenting time, but the child refused to attend. The Respondent Father did not make any further requests. The Applicant Mother suggested resumption of contact on a gradual basis beginning with video, email and phone and then progressing to supervised parenting time. She also suggests that the Respondent Father contact Dr. Cummings so that he could attend an appointment and get information about the child’s progress and needs. The Respondent Father refused to participate.
Respondent Father’s Criminal Charges
- After the Restraining Order was made, the Respondent Father continued to harass, stalk ad threaten the Applicant Mother. For example, he has bombarded her with disrespectful, condescending, abusive and harassing text and Facebook messages. Examples include:
- “you, your father, and your idiot lawyer will certainly burn in hell if there is one;
- I truly loathe you and everything you’ve done to destroy me over the last year;
- you, E. and her lawyer will have a special place in hell if you don’t stop this immediately;
- I hate your fucking mother. She is going to get me arrested;
- I hate you soooooofuckunf much. You stole my life. And I hate you. You fucking took it all;
- You stole my right to defend myself against a gross inaccuracy to the point where L. and I will never be able to fully recover… Because of this I think you are a selfish person, a horrible selfish person, a horrible mother, and a vile human being. How could you do that to me? To him? To us? …. Why do you go to such great lengths to make me suffer, including making L. suffer too;
- Of course I can’t abide by the restraining order. I am so fucking baffled that I need answers. How could someone do any of what you’ve done to someone else? I am at a loss;
- The fraudulent restraining order. I’ll stop if you admit that it’s a load of shit. You gaslit me like crazy when those things happened;
- “I want to either get to the bottom of everything or the bottom of this balcony”.
The Respondent Father has also attempted to call the Applicant Mother via Facebook video multiple times. The Respondent Father stalked the mother by attending her home and standing outside the home in April and May 2020.
On May 20, 2020, the Respondent Father was charged with four counts of “disobeying lawful order of the court” and one count of “reckless harassment”. He continued to breach the restraining order and his bail conditions by sending angry, intimidating and denigrating messages to the Applicant Mother often multiples times per day. On May 28, 2020, for instance, the Respondent Father sent 35 messages to the Applicant Mother. On July 2, 2020, the Respondent Father was arrested and charged with two additional counts of “disobey lawful order of the court” and three counts of failing to comply with his release order.
Respondent Father’s Alleged Drug Use
- Since the Respondent Father moved out of the family home, the Applicant Mother found evidence of drug use by the Respondent Father, including a tensor bandage she believes was used for injecting crystal meth, a cap from a needle, baggies with residue of drugs, and several crack pipes.
APPLICANT MOTHER’S UNCONTESTED POSITION
Decision Making Responsibility
- The Applicant Mother argues that she ought to have decision making responsibility for the child because the Respondent Father’s mental health has deteriorated significantly, and he is misusing elicit substances. Although the Respondent Father was very involved in the child’s care prior to the deterioration of his mental health, she has been primarily responsible for ensuring that the child’s physical, emotional, psychological and medical needs are met. She has made most of the major decisions concerning education and medical treatment.
Parenting Time
The Applicant Mother argues that the child would be at risk of emotional harm if the Respondent Father had unsupervised parenting time. The risk stems from, according to the Applicant Mother, the Respondent Father’s unresolved mental health issues and being under the influence of substances during visits.
In her materials, the Applicant Mother seeks an order that parenting time be supervised by the paternal aunt or paternal grandmother (as set out in the temporary order) or another mutually agreeable third party. In argument, however, it was argued that the Respondent Father’s parenting time ought to be at the Applicant Mother’s discretion.
Restraining Order
- The Applicant Mother argues that the Respondent Father continues to be unstable and ungovernable. In support of this position, she points to what she describes as “lengthy period of harassment, irresponsible and erratic behavior”. In her view, the messages he continues to send her, in breach of family and criminal court orders, have been harassing due to the nature of the messages, their content and their frequency. As such, the temporary without prejudice Restraining Order should be made final.
LAW AND LEGAL PRINCIPLES
Parenting Orders
- Section 24(1) of the Children’s Law Reform Act makes it mandatory that parenting and contact with children be determined based on the best interests of the child and in accordance with the criteria set out in section 24(3) and (4). Subsection 24(3) provides that a person’s past conduct shall be considered if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. The court shall also consider the impact of family violence. Specifically, subsection 24(4) provides:
Factors relating to family violence
(4) 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.
The determination of what is in a child’s best interest turns on the specific circumstances of each child and his or her family. Although the best interests of the child have been found to be met by having a loving relationship with both parents, it cannot pose a risk to the child’s physical or mental well-being. As such, the child’s best interests are paramount to the maximum contact principle.
Courts have found that inconsistent access may cause a child emotional harm. Similarly, long absences in seeing a parent can be emotionally damaging to a child. In such situations, gradual increases in access are appropriate.
Restraining Order
The court may make a restraining Order against a spouse or former spouse if the moving party has reasonable grounds to fear for his or her own safety or for the safety of a child in his or her lawful custody, pursuant to section 46(1) of the Family Law Act.
Restraining orders are serious and should not be ordered unless a clear case has been made out. A person's subjective fear can extend to both the person's physical safety and psychological safety. See: Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.J.).
ANALYSIS AND CONCLUSION
Decision Making Responsibility
- I find that it is in the child’s best interest that the Applicant Mother have sole decision making responsibility and the ability to travel and obtain government documents without the Respondent Father’s consent. In so concluding, I have relied upon the following:
- the Respondent Father has sent numerous threatening and harassing messages to the Applicant Mother, in breach of family and criminal court orders, leaving her fearing for her safety and the safety of the child;
- the parents are unable to communicate effectively;
- given the family violence, the repeated breaches of the Restraining Order it is not appropriate to require the Applicant Mother to work closely with the Respondent Father on issues affecting the child.
- the Applicant Mother has demonstrated her willingness and ability to meet all the child’s physical and emotional needs including arranging for him to see a psychologist to address the impact of the conflict between the parents and the breakdown of the family; and
- there is no claim or plan before the court by the Respondent Father.
Parenting Time
Based on the Respondent Father’s inability to control his emotions during his parenting time, his inappropriate remarks to child about the Applicant Mother and these proceedings, possible untreated mental health challenges and potential substance misuse, unsupervised parenting time would place the child at risk of emotion harm.
I find that an order that parenting be in the Applicant’s Mother discretion is not in the child’s best interest. The Respondent Father’s abusive and harassing messages focus on what he perceives the Applicant Mother has done to him including:
- experiencing homeless because he left the matrimonial home;
- parenting time being supervised;
- the Applicant Mother seeking and obtaining a temporary restraining order; and
- her unwillingness to engage with him.
If the Respondent Father’s parenting time were to be in the Applicant Mother’s discretion, it could place her in harm’s way. Should she deem any proposed terms of parenting time unsafe, even in consultation with the child’s psychologist, she will likely be subjected to further attacks by the Respondent Father. Her ability to put the child’s needs ahead of the Respondent Father’s needs will, therefore, be compromised.
There is no evidence before me regarding the maternal aunt and grandmother’s ability and willingness to supervise parenting time. They have not supervised parenting time since December of 2019. Without a parenting plan from the Respondent Father, I will not make an order for parenting time given the risk of harm posed to the child.
Restraining Order
- I find that the Applicant Mother has established that there are reasonable grounds to fear for her own physical and psychological safety and for the safety of the child. I accept her submission that the Respondent Father continues to be unstable and ungovernable. He continues to breach criminal and family court orders to not contact her by sending abusive, harassing and threatening messages.
Orders
The Applicant Mother, E.M., shall have decision making responsibility of the child L.M. born […], 2010.
The Applicant Mother, E.M., may apply for and renew government documents including (Canadian Passport, Health Card, birth certificate, Social Insurance Number) for the child L.M. born […], 2010 without the consent of the Respondent Father, L.M.
The Applicant Mother, E.M., may travel outside of Canada with the child L.M., born […], 2010, without the consent of the Respondent Father, L.M. The Applicant Mother shall provide the Respondent Father with reasonable written notice of her intended travel with the child outside of Canada, and a travel itinerary, including the travel dates, the address of where they will be staying and a contact number, in advance of such travel.
The Respondent Father, L.M., shall be restrained from directly or indirectly contacting or communicating with the Applicant Mother, E.M., except through his sister, K.L., or his mother, M.L., or from coming within 250 metres of the Applicant Mother, her residence, her place of employment, the child’s school, or any other place that the Applicant Mother may reasonably be expected to be.
This does not appear to be a case where costs are appropriate but if the Applicant Mother seeks costs, submissions (five pages maximum) will be considered. Costs submissions must be filed by May 15, 2021.
This matter is concluded.
Justice Maria N. Sirivar