Ontario Court of Justice
Date: November 2, 2022 Court File No.: FO-21-41354
Between:
Emaad Seyyad Applicant
— AND —
Gulnaz Pathan Respondent
Before: Justice Paulseth
Heard on: October 25-26, 2022 Reasons for Judgment released on: November 2, 2022
Counsel: James H. Herbert, for the applicant Soumia Allalou, for the respondent
Overview
1The parties are the parents of A, a daughter born […], 2019. They were married September 8, 2016 and separated December 30, 2020. The applicant/father is 33 years of age and the respondent/mother is 28.
2The father’s Application was issued on April 19, 2021, seeking decision-making and parenting time. Mother’s Answer/Claim was filed June 7, 2021, seeking decision-making, parenting time, guideline child support, and section 7 expenses.
3On September 29, 2021, the parties reached an agreed upon temporary without prejudice court order, which included:
(1) primary residence to mother;
(2) temporary parenting time to father on Sundays between 9:00 am and 3:00 pm, in the presence of the paternal grandmother; increasing to unsupervised Sundays from 9:00 am to 7:00 pm and Fridays from 5:00 to 7:00 pm;
(3) a term that each parent is to respond to the other by Appclose within 48 hours; and
(4) father to provide the names of all those living in his residence, and keep mother apprised of changes by Appclose
4On October 25, 2022, the parties filed Final Minutes of Settlement, resolving primary residence with mother, guideline child support and sharing of section 7 expenses, and parenting time to father which includes alternate weekends from Saturday to Sunday increasing in 2023 to Friday to Sunday, and alternate Friday evenings from 6:00 to 8:00 pm.
5The only issue remaining for this trial is decision-making. Father seeks shared decision-making, or, in the alternative parallel decision-making, wherein he would be responsible for health care and religion and mother would be responsible for education and extra curricular activities. Mother seeks sole decision-making.
Father’s Evidence
6Father testified in this trial and the following paragraphs are a summary of his evidence.
7Father said that he was unemployed throughout 2020 as his limousine business had to be shut down due to Covid-19. This allowed him to be the primary caregiver to their child once mother returned to work in September of 2020.
8Father claims that even before mother returned to work in September of 2020, he did as much or more of the childcare than mother. For example, he would get up in the night with the child and bring the child to mother for breastfeeding.
9Father now works for TD bank as a team manager. He began with the bank in February of 2021 and was paid for the initial training period. He admits that he lied on his first financial statement, sworn on April 1, 2021, when he said he was unemployed since August of 2020.
10Father claims that he was subjected to verbal and emotional abuse by the mother during the marriage; for example,
(1) mother criticized his choice of shirt;
(2) mother would yell at him if he did not pick up her dishes or fold laundry;
(3) mother invalidated his feelings when he tried to express them; and
(4) he lived in a “constant state of fear, anxiety, and wonder of what I will be berated for next”.
11In September of 2020, mother returned to work as a teacher and was working online. Mother would be fully engaged with her job for up to 7 hours a day and father was completely responsible for the child and the home.
12Father provided texts for the period of September to October of 2020 which show he and the mother cooperating on daily tasks.
13The relationship deteriorated when mother found some “innocuous” photos on father’s phone in October of 2020 and accused the father of infidelity. Father denies having an extra marital affair. After a ten day separation, the parents reconciled and father resumed his full time care of the child.
14At the Christmas break, mother asked father if she and the child could spend some time with her family. He dropped them off on December 18, 2021. Mother told father on the phone later in December, 2021 that they would not be returning. She moved into an apartment in early January of 2021.
15In January and February of 2021, the parents negotiated five visits for the child with father. Thereafter, mother wanted supervised visits and father refused. Father did not have in person visits again until April, 2021.
16At court on June 14, 2021, the parents agreed to father having 4 visits supervised by an agency. The access notes are very positive.
17A further consent order was made on September 29, 2021, as outlined above.
18Father testified that he attended many medical appointments with the child and mother; for example, the parents were able to cooperate around the child’s medical needs when she was diagnosed with pneumonia in November of 2021.
19Father cites a further example when he took the child to the doctor on April 1, 2022 and mother met them there after work.
20The parents communicate through Appclose.
21Father maintains that mother can be cooperative if she chooses.
22Father insists that if mother is given sole decision-making, she will marginalize and oppress him.
23Father denies:
(1) that he made the mother wear a hijab on occasion and
(2) that he said Muslim men do not change female children’s diapers. He insists he changed many diapers.
24Father did not address his alternative proposal and why he would be best able to make decisions in the medical and religious areas of the child’s life.
Mother’s Evidence
25Mother gave evidence in this trial. The following paragraphs summarize her evidence.
26The mother found the father to be emotionally abusive in the relationship; for example:
(1) during arguments, father would often call the mother derogatory names and belittle her. He would also humiliate her in public.
(2) father forced mother to wear a hijab in public. If she did not, he would not allow her to leave the house. The hijab was not a custom in mother’s family.
27Mother observed strange conduct after the birth of their daughter in December of 2019. Father would hide his phone and spend hours behind closed doors.
28In June of 2020, mother found sexual messages on the father’s phone between he and his cousin and he and a former girlfriend. She went to her parents’ home. He followed her and they talked. He apologised and she returned home.
29In July of 2020, mother discovered that father had a private snapchat account and a secret email on his work phone. She found very sexually explicit conversations with random women on his personal and secret snapchat. Mother confronted father with this information and he blamed her because she was not physically and emotionally available to him since the birth of A. He believed it was his right as a Muslim man to have access to his wife whenever he wants.
30Also in July, 2020, father forced mother to start paying her half of the rent, thus terminating her maternity leave earlier than they had planned. Father blamed mother for putting him into financial debt. Mother found a full-time teaching contract with the local school board and began teaching online, due to the pandemic, in September, 2020.
31In October, 2020, mother discovered that the father was sending emails to himself of hundreds of pictures of women. Some of the emails dated as far back as 2012 and included some sent on their wedding day. There were pictures of mother’s friends and of the wife of father’s friend. These were sexting messages and messages telling women he wanted to be with them. The conversations with his cousin and his former girlfriend implied sexually intimate affairs. Mother and A went to her parents’ home for two weeks and then they returned.
32The parents saw an imam for 4 or 5 marital counselling sessions. This religious leader was also qualified as a psychotherapist. Mother also had individual counselling with the imam. Mother says they agreed to separate at the Christmas break and father was going to pay her $400. a month for support. Father says she took the child and made the decision unilaterally. Mother has text messages on December 27, 2020 where the father offers to help her move and has her name taken off the lease.
33Mother testifies that she has made every effort to consult with the father on all major decisions over the past almost two years.
34Prior to separation, mother maintains that she was the primary caregiver of the child. She was on maternity leave from the child’s birth until September of 2020 and was responsible for:
(1) all cooking and cleaning in the home;
(2) breastfeeding the child;
(3) changing the child and bathing her; and
(4) the purchase of all necessities for the child.
35Father believes that it is the woman’s duty to cook and clean and care for the baby.
36When mother returned to work:
(1) she would get up with the child and care for her;
(2) wake father up when she had to begin class at 8:30 am;
(3) at the morning and lunch breaks, change the child and prepare food for the child and father;
(4) after school take charge of the child as father went to work at a relative’s store; and
(5) usually have the child in bed asleep before father returned.
37The original supervised parenting notes indicate that mother sent all the food for the child.
38Father did help in the night to get the child and bring her for feeding to the mother. Father attended the prenatal classes with mother.
39The father and paternal grandmother named the child, over the mother’s objections.
40The child has extremely sensitive skin and mild eczema. Mother advised father to change her diaper often and asked him about what lotions were being used. Father was defensive and declined to answer for some time. The child would return from visits with father with a terrible diaper rash.
41The child was diagnosed with food protein-induced enterocolitis syndrome (FPIES). This is a food sensitivity primarily associated with poultry. The child would vomit within 2 hours of eating poultry and would also get extreme constipation. Red meat also caused her some problems.
42When the child visited father, mother would send food which would be returned unopened. The child would return to mother with extreme constipation, and even, on occasion, with blood in her stool. When mother tried to engage father in a discussion about this, he did not respond and completely ignored her. In fact, father’s 35.1 does not mention these sensitivities and allergies.
43When the parties first came to court and father filed his 35.1 affidavit, he said he was unemployed since August of 2020. Eventually it was confirmed that father had been employed and was being paid by TD Canada Trust since February of 2021.
44Throughout the marriage, mother knew that the paternal grandmother’s partner lived in the paternal home. Suddenly on his 35.1 affidavit, father left this man’s name out and then denied he was living there. Mother retained a private investigator who provided a report and testified that, after multiple days of surveillance, he is of the opinion that this man lives in that home. Mother actually describes this man in very positive terms.
45Of the 7 individuals or families that the father lists as support on his 35.1, five are inappropriate and one has never been introduced to the child. One of these is a paternal cousin. Father had told the mother previously that this same cousin had sexually assaulted his own younger sister when she was 12 years of age. The seventh name gave evidence in the trial as never having been approached by the father to support him.
46On November 14, 2021, the child was to have a visit for the day with father. She had been up most of the night coughing, so when mother realized that father was already at their building, mother asked father to take her to the doctor. Father refused so mother took her. Later in the day it was suggested that the child go to emergency so the next day mother took her to the hospital and kept father informed. Mother and child were there for 3 hours. Father arrived for the last 30 minutes. The doctor advised them that they could go home but the next day called to say the child had pneumonia. Mother had to leave work and take the child to the hospital. Mother informed the father but he did not attend.
47On December 16, 2021, the child was ill again and mother took her to the emergency department of the hospital. She informed father but he did not attend. Antibiotics were prescribed.
48In early 2022, the child developed frequent colds and ear infections. On April 1, 2022, the child awoke with a slight fever and father was scheduled to have her at 9:00 a.m. Mother asked father to take her to a walk-in clinic, but father refused to do so until 5:00 p.m.
49Father had a benefits package from his job at TD Canada Trust that began in February of 2021. He refused to give mother the policy until April 21, 2022.
50From June until August of 2022, the parents were seeing doctors about the child’s ear infections. Father got a specialist referral for July 20, 2022 but didn’t tell mother until she texted him on July 13, 2022 that she had a referral for August 16, 2022. Father had known for weeks but had not communicated with mother.
51Mother testifies that she has done research into the child’s medical issues. Father has not.
52Maternal grandmother was helping to care for the child while mother worked but in February and March of 2022, her health deteriorated suddenly. She ended up in hospital. Mother advised father of this. Mother rushed to secure a subsidized daycare spot nearby and advised father by email and text. Father did not respond for a week.
53In father’s trial 35.1 affidavit, he now says that family members could care for the child, instead of daycare. Father lives with his mother and her partner. He also has two adult disabled brothers in the home and a sister who is estranged from the family.
54Mother sets out a plan for the child’s religious upbringing. Both parents are Muslim. There is a mix of sects within the families, but mother is supportive of the child being exposed to both. Mother plans to enroll the child in Quran classes at age 4. Mother will not force the child to wear a hijab, nor will she police the child’s clothing to ensure adequate coverage. Even at 7 months of age, the child was made by father to wear a long dress on a hot day, such that her legs were not showing.
55On December 17, 2021, it was father’s day to pick up the child for parenting time. Mother was running late from school due to traffic so she asked maternal grandmother to pick up the child from daycare and bring her to the lobby for father to pick up. The maternal grandmother gave evidence about this exchange. She brought the child to the lobby and they saw the father in his car. The child tried to run to the father but he refused to take her from the grandmother. He moved the car down the street a bit to wait for the mother. All the while the child was crying out to him. The father has consistently refused to agree to a transfer from third parties but insists that mother be there.
56Maternal grandmother also gave evidence of the time she spent trying to support the mother after the birth of A. She moved into the home for a week. The father was rude to her and ordered her about. He refused to do anything to help. When the paternal grandmother and her partner came to visit, he yelled at her to get the tea and banged the kitchen cupboards. He has a terrible temper and yells and screams. She observed the mother to be afraid of him. Maternal grandmother would have stayed to help the mother and baby for a longer period of time but for the father’s conduct.
57Mother has observed the child’s bond to the father has grown. She has also seen father’s parenting ability improve. She will support and facilitate their relationship.
Legal Framework for Decision-Making
Decision Making Responsibility
58Subsection 18 (1) of the Children’s Law Reform Act (the Act) defines decision-making responsibility as follows:
“decision-making responsibility” means responsibility for making significant decisions about a child’s well-being, including with respect to,
(a) health,
(b) education,
(c) culture, language, religion and spirituality, and
(d) significant extra-curricular activities;
59Section 20 of the Act reads as follows:
Equal entitlement to decision-making responsibility
20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to decision-making responsibility with respect to the child.
Rights and responsibilities
(2) A person entitled to decision-making responsibility with respect to a child has the rights and responsibilities of a parent in respect of the child, and must exercise those rights and responsibilities in the best interests of the child.
Authority to act
(3) If more than one person is entitled to decision-making responsibility with respect to a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child.
If parents separate
(4) If the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other, the right of the other to exercise the entitlement to decision-making responsibility with respect to the child, but not the entitlement to parenting time, is suspended until a separation agreement or order provides otherwise.
Parenting time
(5) The entitlement to parenting time with respect to a child includes the right to visit with and be visited by the child, and includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education.
Marriage of child
(6) The entitlement to decision-making responsibility or parenting time with respect to a child terminates on the marriage of the child.
Entitlement subject to agreement or order
(7) Any entitlement to decision-making responsibility or parenting time under this section is subject to alteration by an order of the court or by a separation agreement.
60Subsection 21 (1) of the Act reads as follows:
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.
61Any proceeding with respect to children is determined with respect to the best interests of the particular child before the court in accordance with the considerations set out in section 24 of the Children’s Law Reform Act (the Act). The court has considered these factors, where relevant.
62Subsection 24 (2) of the Act provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests.
63Subsection 24 (3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child. It reads as follows:
(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,
(k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
64The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. See: Phillips v. Phillips, 2021 ONSC 2480.
65In considering a child’s best interests it will often be important to determine if a parent will follow the terms of a court order. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201.
66Section 28 of the Act sets out the different types of parenting orders that a court can make. The relevant subsections of section 28 for this case are (1), (4), (5), (6), (7) and (8). They read as follows:
28 (1) The court to which an application is made under section 21,
(a) may by order grant,
(i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2),
(ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or
(iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);
(b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and
(c) may make any additional order the court considers necessary and proper in the circumstances, including an order,
(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,
(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,
(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,
(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,
(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,
(vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or
(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.
Allocation of decision-making responsibility
(4) The court may allocate decision-making responsibility with respect to a child, or any aspect of it, to one or more persons.
Allocation of parenting time
(5) The court may allocate parenting time with respect to a child by way of a schedule.
Parenting time, day-to-day decisions
(6) Unless the court orders otherwise, a person to whom the court allocates parenting time with respect to a child has exclusive authority during that time to make day-to-day decisions affecting the child.
Parenting plan
(7) The court shall include in a parenting order or contact order any written parenting plan submitted by the parties that contains the elements relating to decision-making responsibility, parenting time or contact to which the parties agree, subject to any changes the court may specify if it considers it to be in the best interests of the child to do so.
Right to ask for and receive information
(8) Unless a court orders otherwise, a person to whom decision-making responsibility or parenting time has been granted with respect to a child under a parenting order is entitled to ask for and, subject to any applicable laws, receive information about the child’s well-being, including in relation to the child’s health and education, from,
(a) any other person to whom decision-making responsibility or parenting time has been granted with respect to the child under a parenting order; and
(b) any other person who is likely to have such information.
67Subsection 33.1 (2) of the Act addresses the importance of the parties protecting children from conflict. It reads as follows:
(2) A party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding.
Joint Decision-Making Responsibility
68The Ontario Court of Appeal in Kaplanis v. Kaplanis, 2005 ONCA 1625, [2005] O.J. No. 275 sets out the following principles in determining whether a joint decision-making responsibility order (formerly custody order) is appropriate:
- There must be evidence of historical communication between the parents and appropriate communication between them.
- It can’t be ordered in the hope that it will improve their communication.
- Just because both parents are fit does not mean that joint custody should be ordered.
- The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
- No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
- The younger the child, the more important communication is.
69Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. See: Griffiths v. Griffiths, 2005 ONCJ 235, 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, 2009 ONSC 6423.
70The Court of Appeal has upheld a joint decision-making responsibility order in the absence of reasonably effective communication between the parents where it has been necessary to sustain a child’s contact with a parent who has been subjected to a campaign of alienation. For example, such an order was upheld where a mother had laid down a pattern of resisting the father’s access and was found by the trial court to be unable to appreciate the importance of the father’s relationship with their children. See Andrade v. Kennelly, 2007 ONCA 898.
71Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of one parent, that parent should not be able to use the conflict as justification to oppose a joint or shared parenting order. To do so allows an obdurate parent to engineer a result in his or her favour. However, where the conflict is extreme and there is substantial blame to be leveled against both parents, a joint or shared custody approach is not appropriate. Geremia v. Harb, 2008 ONSC 19764.
72Courts will order joint custody rather than sole custody where such an order is considered necessary to preserve the balance of power between the parties, particularly in cases where both parties are caring and competent parents but one party has been primarily responsible for the conflict between the parties. See: Roloson v. Clyde, 2017 ONSC 3642, par. 59 for a review of these cases.
73A starting point to assess a child’s best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615. Also see: J.N. v. A.S., 2020 ONSC 5292; A.L.M. v. V.L.S., 2020 ONCJ 502; M.R.-J. v. K.J., 2020 ONCJ 305; Abbas v. Downey, 2020 ONCJ 283; N.D. v. R.K., 2020 ONCJ 266.
74Mutual trust and respect are basic elements for a joint decision-making responsibility order to work effectively. See: G.T.C. v. S.M.G., 2020 ONCJ 511; T.P. v. A.E., 2021 ONSC 6022.
75In paragraph 504 of Izyuk v. Bilousov, 2011 ONSC 6451, 2011 CarswellOnt 12097 (SCJ), the court writes:
In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children - particularly children already exposed to the upset of family breakdown - look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.
76In the case of S. (S.) v. K. (S.), 2013 ONCJ 432, the court wrote that courts should assess the dynamics of a family when determining if a joint decision-making responsibility order is appropriate. Particularly, the court should examine if the granting of such an order is:
a) more or less likely to de-escalate or inflame the parents' conflict; and
b) more or less likely to expose the child to parental conflict.
77In S.(S.), the court also wrote that it is a factor to consider whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders for the purpose of asserting control over their former spouse and children, tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a joint custody order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.
78Financially supporting one’s children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint custody order as it demonstrates poor judgment and an inability to prioritize the child’s interests. Jama v. Mohamed, 2015 ONCJ 619; T.P. v. A.E., 2021 ONSC 6022; McBennett v Danis, 2021 ONSC 3610; Pinda v. Pankiw, 2018 BCSC 190.
79Ultimately, the court must determine if a joint decision-making responsibility order, or an order allocating any decision-making responsibility between the parties, is in the child’s best interests. The court also has the option, if it is in the child’s best interests, to leave some or all aspects of decision-making responsibility silent. See: M. v. F., 2015 ONCA 277.
Credibility of the Parties
80Where the parties differ in their evidence, the court prefers the evidence of the mother, because:
(a) father depends on blanket denials;
(b) mother is very detailed in her evidence and consistent;
(c) father has lied about his employment in his financial affidavit;
(d) father has lied about the supports he might have in the community in his 35.1 affidavit;
(e) father did not want to disclose who was living in his home; and
(f) father cannot explain the text message from him where he maintains that Muslim men do not change female diapers
Best Interests of the Child
81The parties have already agreed that the child will reside primarily with mother. The parties have agreed upon a schedule of parenting time for the father.
82This child had some serious health issues as an infant. She has mild eczema and allergies to poultry products. She also suffered from constipation. Mother made every effort to be knowledgeable about the child’s diet and monitored her closely. Father failed to mention that the child had any health issues in his 35.1 affidavit for decision-making responsibility. Father also resented mother questioning him about the child’s diet. In recent months father has improved in his attitude towards these details.
83Father claims that mother just stopped breast feeding when the child was 6 months of age. Mother explained that it was actually 7 months and it was because she couldn’t make enough milk to satisfy the growing child.
84Father criticized mother for giving the child cow’s milk. Mother explained that the doctor suggested cow’s milk. When the child got a rash, mother and the doctor discussed cutting back on the milk. These are trial and error issues that require discussion and problem solving.
85Courts have found that a father is putting his own pride ahead of the child’s best interests where he chooses not to see the child for many months rather than go to supervised access. See: A.M. v. S.D., 2020 ONCJ 479.
Communication
86The parties agreed to use Appclose to communicate with each other about the child. Mother registered right after it was suggested in court in June of 2021. Father waited 6 weeks.
87The parents also agreed to respond to each other’s enquiries regarding child issues within 48 hours. This was incorporated into a court order.
88When the maternal grandmother was ill in the hospital, mother had to find a daycare very quickly. She found one close by and emailed the father, with information attached to the email, and also sent him a text on appclose. Her email ends with a polite “please let me know if you have any questions”. He did not respond for a week! Father is highly critical of mother for choosing the daycare unilaterally. He does not offer any other daycare or solution. Father’s parenting time is not dependent on the location of the daycare. Mother, as a full time working single parent, is very dependent on the existence and the location of the daycare.
89Father did not want to disclose who was living in his home.
90Father would not respond to mother within a reasonable time frame, even after she obtained a court order.
91Mother makes every effort to keep father informed during a medical emergency for the child. Father does not reciprocate.
Ensuring Relationships
92Father is concerned that mother marginalizes him and the importance of his relationship with the child. There is little or no evidence to support that position. It is less than two years since the separation and mother has agreed to gradually increasing the parenting time up to and including a regular overnight schedule.
93Mother speaks often and well of the father to the child, according to maternal grandmother, and encourages the child to see father.
94Mother had some very legitimate health concerns about the child. This led to her close monitoring of the child’s intake and skin conditions. Father resented the mother’s questions and chose to see her concern as an attempt to control him.
Conflict
95Father maintains that the parents had conflict and disagreement but not abuse. Father still persists in creating conflict, chaos, and drama; for example, the conflicting information about the specialist ENT referral last summer.
96Exposure to conflict has been called the “single most damaging factor for children in the face of divorce”: per Backhouse J., in Graham v. Bruto, [2007] O.J. No. 656 (S.C.), at para. 65, aff’d 2008 ONCA 260; Mattina v. Mattina, 2018 ONCA 776.
97The reasons of Mr. Justice J.C. Murray in the case of Jackson v. Jackson, 2008 ONSC 3222, [2008], 50 RFL (6th) 149, paragraphs 7-25, highlight the toxic effect of parental conflict on children. Numerous studies demonstrate the significant negative impact parental conflict has on children which continues in both the short and long term and is a major source of harm to children.
98Parents will always have disagreements. The goal is to keep the disagreements child-focused. Father sees the disagreement as about him.
Emotional Safety
99It is crucial for the primary parent to feel safe in her environment and in the exchange environment. For a young child to feel safe, the primary parent must feel safe.
100It is clear that mother is emerging from a very controlling relationship. Father wants to be in charge and doesn’t want to listen to mother. This must change. Mother has testified that she has gone to therapy and her evidence is consistent with a more mature and child-focused response. It would be helpful for both the child and father if he would also participate in some treatment.
Violence
101The court must consider any family violence and its impact on a parent’s ability to parent and to cooperate on issues affecting the child. The definition of family violence includes:
(4)(b) …a pattern of coercive and controlling behaviour in relation to a family member
102This is a clear case of father exhibiting a pattern of coercive and controlling behaviour in respect of the mother; because
- he demonstrated a pattern of “allowing” and “forbidding” certain things in the home;
- he believed that he was “in charge”;
- he unilaterally chose the baby’s name;
- he did not discuss issues but issued directions about suitable clothing for babies and women;
- he had a terrible temper and would yell and scream; and
- mother was afraid of him.
Judgment
103On more than one occasion, mother advised the father that the child was ill and she asked him to take the child to a walk in clinic. Father did not. He chose to see this issue as one in which the mother was trying to control his parenting time. His response is “why didn’t she take the child on her time”.
104Father argues that mother’s judgment is impaired because she saw some pornographic photos on father’s phone and jumped to the conclusion that he had a sex addiction. He believes this to be a religious over reaction. For whatever reason, father could not step away from these photographs and exchanges. Mother perceives it to be an “affair”. Father is disdainful of this reaction, both in his affidavit and in court.
105In early 2021, mother offered father supervised parenting time. He refused and filed his court documents. As a result of father’s refusal to accept anything less than unsupervised parenting time, father did not see his child from February until April of 2021. At court on June 14, 2021, the judge noted an agreement in principle to 4 supervised visits through an independent agency.
106In June of 2022, mother told father that the child had a hard time leaving her that day and asked for a 5 minute check in after they got back to father’s home. Father refused and tried to use that request as a negotiating tool to obtain an agreement for his own daily contact with the child when she was with mother.
Parallel Parenting
107Courts have found that parallel-parenting orders will not meet the best interests of the children where the conflict is too high to make such an order work. See: Roy v. Roy, 2006 ONCA 15619, 2006 CarswellOnt 2898 (C.A.); Mo v. Ma, 2012 NSSC 159.
108In Graham v Bruto, [2007] O.J. No 656 (Ont. S.C.J.) aff’d at 2008 ONCA 260 the trial judge found that a joint custody and parallel-parenting regime made little sense since it would put the “children in the middle of conflict every few days” and “the parents' inability to cooperate in such cases may result in frequent visits to court which would present a greater opportunity for conflict”.
109In V.K. v. T.S., 2012 ONSC 4305, Justice Deborah Chappel conducted a thorough review of the case law and set out in paragraph 96 the following factors to consider when determining whether to make a parallel-parenting order:
a) The strength of the parties’ ties to the child, and the general level of involvement of each parent in the child’s parenting and life. In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child’s life on all levels.
b) The relative parenting abilities of each parent, and their capacity to make decisions that are in the child’s best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered.
c) Evidence of alienation by one parent. If the alienating parent is an otherwise loving, attentive, involved, competent and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party’s role in the child’s life. On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child’s best interests, a sole custody order may be more appropriate.
d) Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order.
e) The extent to which each parent is able to place the needs of the child above their own needs and interests. If one of the parties is unable to focus on the child’s needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child’s day to day needs.
f) The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting.
The court went on to conclude:
57However, a sad reality of family law is that there is a certain group of parents who seek such orders for the purpose of asserting control over their former spouse and children. These parents tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a parallel-parenting order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.
58All of these considerations lead this court to the conclusion that courts should be very careful before granting parallel-parenting orders in high-conflict cases. They are rife with potential complications that could have the inadvertent effect of escalating conflict and destabilizing children. There is also the risk that important decisions regarding children will not be made in a timely manner if there is a conflict over who is entitled to make that decision. It is not in the best interests of children to paralyze the decision-making process about them.
59Logic dictates that these risks grow exponentially in a high-conflict case if a party is seeking a “full parallel-parenting model” order. There are many child-related decisions that require a high-level of parental communication. Important medical and academic needs for children need to be coordinated. The treatment of any special needs of children must be coordinated. A proposed parenting model where each parent acts fully independently of the other in making these important decisions (where the parents have little or no ability to effectively communicate about the children) needs to be approached with extreme caution.
110Father proposes an alternative position that would give him decision-making over religion and health. He puts forward no evidence about how he would decide these issues.
111Mother sets out her plan on religious training and she has demonstrated her close attention to all medical matters concerning the child.
112The court is forced to conclude that father’s proposal is simply another means to gain control over mother.
Conclusion on Decision Making
113In considering all of the above and, in particular, the findings that:
(a) father has not consistently played a significant role in the child’s life on all levels;
(b) father puts his pride ahead of the child’s best interests;
(c) father seeks joint custody in order to control the mother;
(d) father is a competent parent but lets his emotions impede the child’s best interests;
(e) father has exhibited a pattern of controlling behaviour;
(f) mother makes every effort to research issues in order to make the most informed decision for the child;
(g) father has failed to follow court orders; how can he be expected to cooperatively make decisions with the mother for the benefit of the child?
(h) father’s communication with the mother is too poor for either joint or parallel parenting;
(i) father has shown a pattern of disrespect for the mother;
(j) mother has been clearly more attentive and responsible for the child; and
(k) mother consistently puts the child’s need for a relationship with the father first;
the court finds that it is in the child’s best interests for mother to have sole decision making, after a reasonable consultation with the father.
114The draft order provided by counsel for the mother will be signed and issued by the court.
115Should counsel for mother seek costs, a written submission of a maximum of 3 pages, excluding bills of costs and offers can be served and filed with the trial office within 10 business days of this decision. Counsel for father may respond in writing with a maximum of 3 pages, excluding bills and offers, within 7 business days of receiving the respondent’s submissions, served and filed in the trial office.
Released: November 2, 2022. Signed: Justice Paulseth
