F.S. v. M.B.T., 2023 ONCJ 102

DATE: March 6, 2023 COURT FILE NO. D42128/21 ONTARIO COURT OF JUSTICE

B E T W E E N:

F.S.

LAUREN ISRAEL, for the APPLICANT

APPLICANT

• and -

M.B.T.

SHEILA C. MACKINNON, for the RESPONDENT

RESPONDENT

HEARD: FEBRUARY 27-28, 2023

JUSTICE S.B. SHERR

REASONS FOR DECISION

Part One – Introduction

1This trial was about the parenting arrangements for the parties’ 12-year-old daughter (the child) and the applicant’s (the mother’s) claim for spousal support from the respondent (the father).

2The mother seeks parenting orders that the child shall have her primary residence with her, that she have sole decision-making responsibility for the child and that the father’s parenting time with the child shall be in the child’s discretion.

3The mother also seeks incidents of parenting. She seeks orders dispensing with the father’s consent for her to obtain and renew government documentation for the child and for her to travel with the child outside of Canada.

4The mother seeks spousal support from the father of $350 each month, starting on March 1, 2023. She seeks this for five years.

5The father agrees that the child should have her primary residence with the mother. He seeks an order for joint decision-making responsibility. He seeks specified parenting time with the child, including alternate weekends and holidays.

6The father seeks an order that the child and the mother attend reunification therapy. He also seeks other incidents of parenting related to communication, travel and documentation.

7The father asks the court to dismiss the mother’s claim for spousal support.

8The parties resolved the issue of child support during the case management process.

9The parties agreed to a focused trial of these issues. The parties filed affidavits for their direct evidence and were permitted to provide additional oral direct evidence. Time limits were agreed to for their cross-examinations. The court increased those time limits at trial.

10A clinician (the clinician) from the Office of the Children’s Lawyer’s prepared a Voice of the Child Report (VOCR) and participated in the trial by video. She was cross-examined by both parties.

11The parties agreed that a letter from the father’s counselor and notes from the mother’s counselor would be filed without the need to cross-examine those witnesses.

12The mother called one additional witness (M.K.) who provided her direct evidence by affidavit. She was cross-examined by the father.

13The issues for the court to determine are:

a) What parenting orders are in the child’s best interests? b) Is the mother entitled to spousal support? c) If so, what should be the duration and amount of the order?

Part Two – Background facts

14The father is 52 years old. He came to Canada as a refugee claimant from Africa when he was 18 years old and has resided in Canada since then. He is employed with the City of Toronto in waste management.

15The mother is 50 years old. She is presently working part-time as a helper at a daycare in Toronto. The mother is also attending school each morning to upgrade her English.

16The parties were married in Kenya in January 2010. [1]

17The parties were previously married and have children from those relationships. The father has two sons who are ages 29 and 25. The mother has two sons who are ages 26 and 19.

18The parties had the one child together.

19The father sponsored the mother and the child to come to Canada from Kenya in November 2011, shortly after the child’s birth.

20On January 27, 2012, the parties executed a marriage contract in Ontario. The mother agreed to release any claim to the matrimonial home and to exclude the matrimonial home from any future net family property calculation. The mother did not release her claim for spousal support.

21The parties lived together in Toronto until they separated on August 6, 2021.

22The mother was the primary caregiver for the child. She stayed at home with the child until she started working at the daycare towards the end of 2018.

23The child has exclusively lived with the mother since the parties separated.

24The father has not seen the child in person since the parties separated. He had two virtual visits with the child in February 2022. The parties agree that the visits went poorly. They blame each other for this.

25The child is refusing to see the father.

26The mother sponsored her sons to come to Canada without the father’s knowledge. Her older son arrived in Canada in May 2021 and went to live with her friend M.K. Her younger son arrived in Canada in January 2023. Both sons are now residing with the mother and the child.

27The father’s 25-year-old son resides with him in Toronto.

Part Three – Court history

28The mother issued her application on December 3, 2021.

29On April 20, 2022, Justice Debra Paulseth ordered the VOCR and made a temporary child support order to start on May 1, 2022. The father had not paid the mother any support since their separation.

30The VOCR, dated June 24, 2022, set out that the child expressed a strong view and wish to have no contact with the father.

31On July 18, 2022, at a case conference, Justice Paulseth endorsed:

On consent, referred to counseling for family – through father’s plan.

32The father proposed that Marcy Urbas conduct the counseling. However, the child refused to participate. Ms. Urbas indicated that she was prepared to meet with the parties together. The mother said that she would not attend sessions with the father. The counseling did not take place.

33The father attended for counseling with Ms. Urbas on his own for six sessions.

34The mother attended two counseling sessions on her own with Shannon Deacon.

35On December 12, 2022, on consent, Justice Paulseth made a final child support order. The father was ordered to pay ongoing support to the mother of $641 each month, based on an annual income of $68,695, starting on January 1, 2023. In addition, he was ordered to pay the mother support arrears of $4,807.05, calculated from August 1, 2021. He was permitted to pay these arrears over 12 months.

Part Four – Legal considerations for parenting orders

4.1 Statutory considerations

36Subsection 24 (2) of the Children’s Law Reform Act (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.

37Subsection 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:

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, 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.

38Subsection 24 (4) of the Act sets out factors relating to family violence. It reads as follows:

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.

39Subsections 18 (1) and (2) of the Act defines family violence as follows:

(1)“family violence” means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct; (“violence familiale”)

“Family violence”

(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 i) the killing or harming of an animal or the damaging of property.

40Subsection 24 (6) of the Act states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

41Section 28 of the Act sets out the types of parenting orders the court can make.

42Subsection 33.1 (2) of the Act addresses the importance of the parties protecting children from conflict. It reads as follows:

33. 1 Protection of children from conflict

(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.

4.2 Best interests

43The 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. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.

44An assessment of the best interests of the child must take into account all of the relevant circumstances with respect to the needs of the child and the ability of each parent to meet those needs. See: Mokhov v. Ratayeva, 2021 ONSC 5454 (SCJ).

45The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. See: Gordon v. Goertz, [1996] 2 S.C.R. 27. Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child. See: Young v. Young, [1993] 4 S.C.R. 3; E.M.B. v. M.F.B., 2021 ONSC 4264; Dayboll v. Binag, 2022 ONSC 6510.

46In S.S. v R.S., 2021 ONSC 2137, at paragraphs 26 to 28, Justice Renu Mandhane states “[a] human rights-based approach to the amended Divorce Act calls on the Courts to recognize, respect and reflect each child as an individual distinct from their parents, and to empower children to be actors in their own destiny. In practice it requires judges to probe into each child’s lived experience, to meaningfully consider their views and preferences, and to craft an order that promotes that child’s best interests and overall wellbeing.”

47A party’s failure to protect a child from conflict may be an important consideration in granting primary residence or decision-making responsibility to the other parent. See: Dayboll v. Binag, 2022 ONSC 6510.

4.3 Family violence

48The Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22 recently made the following observations about family violence:

1. The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis (par. 146).
2. The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497. (par. 145).
3. Domestic violence allegations are notoriously difficult to prove. Family violence often takes place behind closed doors and may lack corroborating evidence. Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support (par. 145).

49Justice Deborah Chappel wrote about the importance of family violence as a best interests factor in paragraph 86 of McBennett v. Danis, 2021 ONSC 3610, as follows:

The broad definition of family violence and the specific inclusion of this factor as a mandatory consideration in determining the best interests of children recognize the profound effects that all forms of family violence can have on children. These consequences can be both direct, if a child is exposed to the family violence, or indirect, if the victimized parent’s physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact their ability to meet the child’s physical and emotional needs.

50In cases of family violence, particularly spousal violence, it is crucial that the court consider whether a co-operative parenting arrangement is appropriate. A victim of family violence might be unable to co-parent due to the trauma they have experienced or ongoing fear of the perpetrator. In addition, co-operative arrangements may lead to opportunities for further family violence. See: Bell v. Reinhardt, 2021 ONSC 3353.

51Family violence can be insidious. It can take many forms, and frequently involves coercive and controlling behaviors which are usually very difficult to prove because they often take place in private. Abusers, especially those of the coercive and controlling kind, are often skilled manipulators; they can be charming, they can be convincing liars, and they can be very persuasive. Victims of family violence are often the only witnesses who can attest to their abuser’s behavior and unfortunately, they are sometimes not believed because of their inability to support their allegations with objective third party evidence. See: Volgemut v. Decristoforo, 2021 ONSC 7382.

52Failure to speak out earlier and inconsistent evidence is common for victims of domestic violence. See: A.E. v. A.B., 2021 ONSC 7302; N.M. v. S.M., 2022 ONCJ 482.

53The court is also very aware that family violence is sometimes difficult for the victim to prove. It is often not reported. There may be many reasons for this. There will often be no medical, police or Children’s Aid Society reports to corroborate allegations of family violence. Victims sometimes minimize and rationalize the abuse. The family violence can take place in private so that there are no witnesses. Control and coercion can be subtle and only evident to the victim. See: Wiafe v. Aboakwa-Yeboah, 2021 ONCJ 201.

54Denigrating your spouse in front of the children fits within the definition of family violence. See: Ammar v. Smith, 2021 ONSC 3204; McIntosh v Baker, 2022 ONSC 4235.

55In N.M. v. S.M., 2022 ONCJ 482, supra, the court found that the father had financially abused the mother. He had the ability to pay her generous support and intentionally paid her very little support to control her and to make her life difficult.

4.4 Joint decision-making responsibility

56The 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 a joint custody order) is appropriate:

1. There must be evidence of historical communication between the parents and appropriate communication between them.
2. It can’t be ordered in the hope that it will improve their communication.
3. Just because both parents are fit does not mean that joint custody should be ordered.
4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
5. 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.
6. The younger the child, the more important communication is.

57Mutual 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; Shokoufimogiman v. Bozorgi, 2022 ONSC 5057; Jacobs and Coulombe v. Blair and Amyotte, 2022 ONSC 3159.

58Financially supporting one’s children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint decision-making responsibility order as it demonstrates poor judgment and an inability to prioritize the child’s interests. See: Jama v. Mohamed, [2015] ONCJ 619; T.P. v. A.E., 2021 ONSC 6022; McBennett v Danis, 2021 ONSC 3610; J.T. v. E.J., 2022 ONSC 4956; Shokoufimogiman v. Bozorgi, 2022 ONSC 5057.

59Courts 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.

60Ultimately, 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 children’s best interests. The court also has the option, if it is in the children’s best interests, to leave some or all aspects of decision-making responsibility silent. See: M. v. F., 2015 ONCA 277.

4.5 Children’s views and wishes

61In Decaen v. Decaen, 2013 ONCA 21 the Ontario Court of Appeal set out the following factors in assessing he weight to be given to a child’s wishes:

a) whether both parents are able to provide adequate care; b) how clear and unambivalent the wishes are; c) how informed the expression is; d) the age of the child; e) the child’s maturity level; f) the strength of the wish; g) the length of time the preference has been expressed for; h) practicalities; i) the influence of the parent(s) on the expressed wish or preference; j) the overall context; and k) the circumstances of the preferences from the child’s point of view:

62Where a parent has unduly influenced or poisoned the views and wishes of a child the court is entitled to give them little or no weight. See: A.M. v. C.H., 2019 ONCA 764. In J.N. v. C.G., 2023 ONCA 77, the court wrote at par: 34:

Guidance on how to properly treat a child’s views and preferences can be found in K.K. v. M.M., 2021 ONSC 3975. In that case, the court held, at paras. 748-749, that, while the OCL indicated that the 11-year-old child had not been “coached”, they were simply repeating what a parent had told them, meaning their views were not independently formed. Accordingly, the child’s views were given no weight.

63Many courts have followed the wishes of mature children in the child’s age range. The Court of Appeal in DeMelo v DeMelo, 2015 ONCA 598, found that children aged 15 and 13 were of sufficient age and maturity to warrant judicial respect for their positions. They were not forced to see their father against their wishes.

64In V.L. v M.L., 2019 ONSC 7367, the court respected the wishes of a 13-year-old not to have any contact with a parent.

65In M. Q v. R.C., 2022 ONSC 1753, Justice Heather McGee ordered that that parenting time between a 13-year old child and his mother should be at the discretion of the child in accordance with his views and preferences – no parenting schedule was ordered.

4.6 Parenting time

66A starting point to assess a child’s best interests when making a parenting order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making a parenting time order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615; 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.

67The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being. Moreover, the child has a right to have contact with both parents. See: Klymenko v. Klymenko, 2020 ONSC 5451.

68The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See: M.A. v. J.D., 2003 ONCJ 52807, [2003] O.J. No. 2946 (OCJ); Dayboll v. Biyag, 2022 ONSC 6510.

Part Five – The mother

69The mother deposed that she has always been the child’s primary caregiver. She was a stay-at-home parent, and the father was the breadwinner for the family.

70The mother said that she has a close and loving relationship with the child. She said that she attends to all her needs.

71The mother deposed that she has been subjected to significant family violence from the father. She said that this family violence often took place in front of the child.

72The mother attested that the child was also subjected to family violence from the father.

73The mother said that sometimes the family violence was physical – the father would push her and intimidate her. He would also sometimes shove the child, pull the child’s hair and box the child’s ears. The mother deposed that she was helpless to stop the abuse. She deposed that she was always scared of the father.

74The mother asserted that the family violence was mostly psychological and emotional. She said that the father’s verbal abuse took place daily, including:

a) He would call her stupid. b) He would call her a loser. c) He would tell her that she was dumb and ugly. d) He would tell her that she was dirty and a whore. The father would call her “Khuntha” – meaning sex unknown. e) He would constantly criticize her and remind her that she was illiterate and had no early education. f) He would insult and mock her in front of his friends g) He would tell her that she should be obedient and submissive. h) He told her that she was not worthy of marrying him. i) He would threaten to stop her from seeing her children again. j) He threatened to tell her sons that she was a disgraced woman. k) He threated that he and his two sons (who have been in and out of jail) could “fix her good in two minutes”. l) He would constantly remind her that she had no claim to his house or his money and was expected to obey him at all times. m) If the child did not understand her homework, the father would yell at the child and call her stupid like her mother. n) The father would tell the child she is as dumb as her mother and is the devil.

75The mother said that the father tried to control every aspect of her life. He prevented her from going to school full-time to learn English and from becoming independent. He insisted in 2018 that she go to work instead of going to school full-time, as she had wanted. He controlled her finances for most of the relationship. He took all her jewelry. She claims that he manipulated her into signing papers, including the marriage contract.

76The mother said that the father isolated her and that she and the child were not allowed to have friends in the home.

77The mother said that the father threw her out of their home on August 6, 2021, and that she and the child went to live with M.K.

78The mother deposed that the father’s abuse broke down her confidence.

79The mother denies the father’s allegations of parental alienation.

80The mother said that she feels it is important that the child have a positive relationship with the father and that she has tried to encourage this.

81The mother said that the father was verbally abusive to the child during the two video calls that took place in February 2022. [2] He told the child that she “was out of control” and insisted that she apologize to his son after the son had said that the child was being manipulated by the mother. He called her a liar and the devil. He told her everyone was speaking badly about her and threatened to go to her school to tell them about her terrible behaviour.

82The mother said that the child cried for two hours after the second call.

83The mother said that in the fall of 2022 she encouraged the child to write a letter to the father and to get together with him. However, the father was in Africa at the time. The mother said that neither she nor the child knew this. The father has alleged that the child and the mother set him up by proposing a visit while he was outside of Canada. The mother said that the child is hurt by his allegations.

84The child subsequently wrote the father saying that she no longer wanted any contact with him. The child blocked the father from her computer devices.

85The mother said that she did not agree to going to reunification counseling with the father and misunderstood what had happened at court – she thought the consent was for her to go to counseling to help the child in her relationship with her father. She said that she had tried counseling together with the father during a prior separation in 2018 and the father did not change. She does not feel emotionally safe being in counseling with him.

86The mother attended counseling with Shannon Deacon in November 2022 to learn strategies to assist the father-child relationship.

87The mother said that the child remains very angry at how the father has abused the two of them and is adamant that she does not want to participate in counseling with the father at this time.

88The mother says that the parties cannot make joint decisions in the child’s best interests due to their poor communication and the power imbalance between them.

89The mother is not seeking a “no parenting time” order. She said that she wants the child to have a relationship with the father and feels that this will happen – but not yet. She suggested that the father take a parenting course and apologize to the child for his actions as first steps towards repairing his relationship with the child. She asks that the father’s parenting time with the child be in the child’s discretion.

Part Six – The father

90The father presented an entirely different narrative.

91The father maintains that the mother has fabricated her allegations of family violence and alienated the child from him for financial gain. He believes that she has done this to obtain subsidized government housing, government benefits and free legal aid. He denies every allegation of abuse.

92The father denies manipulating the mother into signing the marriage contract. He said that the mother told him that she wanted none of his property if they separated. She said she agreed to this “out of her own will” and that she had independent legal advice from a lawyer who spoke Swahili.

93The father said that the mother constantly fought with him because she wanted him to sponsor her sons to Canada. He said that he was prepared to assist them if they came to Canada. However, he was not prepared, at his age, to enter into the financial commitment that comes with sponsorship. He said that the mother would threaten him that she was going to “make him pay for not signing the papers”. She threatened to call the police on him and to call immigration to prevent him from traveling. He said that the mother made these threats in front of the child. He deposed, “it was a terrible situation”.

94The father asserts that he was the victim of family violence from the mother.

95The father testified that until the parties separated, they had a very happy family.

96The father stated that the mother left him on August 6, 2021, so that she could be with her son, who had come to Canada in May 2021. He said that he was unaware that the mother had sponsored her son to come to Canada until June 2021. He denied “kicking the mother out of his home” as she alleged.

97The father said that he was very involved with parenting the child when he was not working. He said that they had a close relationship.

98The father said many times during the trial that he would do anything for his beloved family and his beloved child.

99The father agreed that the two video calls with the child that took place in February 2022 went poorly. He felt that the mother was in the room during the calls and had coached the child to be defiant and disrespectful to him. The mother denied this. The father denied making any threats or inappropriate comments to the child during these calls.

100The father acknowledged receiving a letter from the child in November 2022 to meet him at the Yorkdale mall the following day. He stated that the child and the mother knew that he was in Africa at the time and could not meet the child. He believes that they orchestrated this letter to make him look bad to the court. He said that the mother was “showing off for the court” and that he assumed it was a trick.

101The father sought out Marcy Urbas for reunification counseling. When the child refused to participate in the counseling, he said that he was prepared to attend with the mother for joint counseling. When the mother refused, he attended six sessions alone with Ms. Urbas.

102Ms. Urbas provided a letter to the court. The father attended counseling with her between September 14, 2022 and December 9, 2022. They discussed coping strategies should parenting time not resume or reunification therapy not happen. Ms. Urbas wrote:

The father presented as a caring, warm and respectful man. He was punctual for all his sessions and made good use of his therapeutic time, always raising issues and concerns that he had been reflecting on or had experienced in the past or in between sessions.

Additionally, the father appeared to be a concerned, loving and heart-broken father due to the estranged relationship with his daughter. He expressed sadness and despair that his daughter was refusing to see him and he was brought to tears on several occasions upon reflection of this relationship.

Part Seven – Assessment of the evidence

7.1 Reliability and credibility of the mother

103The court had some concerns with the reliability of the mother’s evidence. She answered many questions tangentially. She had difficulty remembering dates or specifics about incidents.

104The court recognizes that these difficulties may have been due in part to trying to communicate through the Swahili interpreter. The court also recognizes that the mother only has a grade six education and that the court process was very stressful for her. The mother spent much of the trial teary or weeping. She was also facing the father in court – a man who had allegedly abused her and dominated her life.

105The mother made some allegations against the father with no corroboration, such as allegations that he had married another woman in Kenya in 2021 and that he owned several businesses in Kenya.

106The court also had some concerns with the mother’s credibility.

107The mother alleged that the father had manipulated events to prevent her from bringing her sons to Canada at the same time that she came to Canada with the child in November 2011. Her version of events made little sense and was contradicted by documentation. The father produced documentation from the mother’s ex-husband showing that it was the ex-husband and not the father who had refused to let her sons come to Canada. [3]

108The court also notes that the mother was secretive in not informing the father that she had sponsored her sons to come to Canada.

109However, for the most part, the court found that the mother was a credible witness and tried to answer questions to the best of her ability.

110The mother’s credibility was significantly bolstered by the other evidence presented at trial. This evidence will be reviewed below.

7.2 M.K.

111M.K. described herself as a family friend. She was introduced to the mother through the father. She said that she has known the father’s family for many years.

112M.K. presented as a direct and confident witness.

113M.K. testified that:

a) She became a close friend of the mother – the mother’s only friend. She helped the mother sponsor her sons to Canada and kept the secret from the father. b) She also kept the closeness of her friendship with the mother a secret from the father as he would have disapproved of it and would have taken his anger out on the mother. c) She observed many times how poorly the father treated the mother. He said that he would constantly demean her. He would laugh at the mother’s English in front of his friends and humiliate her. She observed him calling the mother a snake and a witch. d) The mother’s older son lived with M.K. when he came to Canada. e) The mother and the child came to live with her in August 2021 after the father asked the mother to leave their home. f) The mother and the child have frequently told her about the father’s abusive behaviour towards them. g) She encouraged the mother to call the police or the Children’s Aid Society, but the mother was too afraid of the father to do this. h) The mother does not read or write English well. M.K. helped the mother with her applications for legal aid, subsidized housing, employment insurance and her sponsorship applications. i) The mother and the child have a strong bond. They have a warm and loving relationship. j) The child is a happy and nice girl. k) The child has adamantly told her several times that she does not want to see the father. l) The child is very angry at the father because of how he has mistreated her and the mother. m) The child has told her that she has witnessed the father abusing the mother. n) The child loves the father and will see him again when she is ready.

7.3 The clinician

114The VOCR was filed. The clinician also testified.

115The court is attuned to the limitations of a VOCR. It is not an intensive investigation, such as those conducted under section 112 of the Courts of Justice Act. It is non-evaluative. Collateral sources are not interviewed. There is little document review. There are no observational visits between the child and the parents. There is no assessment of the dynamics between the parties and the child. There is no clinical discussion or recommendations made. They are conducted over a short period of time. They are snapshots of a child’s expressed views and wishes at a specific point of time.

116The weight to be given to any VOCR will vary depending on how it fits into the constellation of evidence the court receives.

117In this case, the clinician’s evidence was consistent with the other evidence presented and the court’s observations of the parties. It was helpful.

118The clinician testified that she met with the child twice – once in person and once by videoconference. She said that the mother left the apartment both times.

119The clinician described the child as bright, determined, open and forthcoming. She said that the child knew what she wanted. She also described the child as pleasant, polite, intelligent and articulate. She reported that the child maintained eye contact with her and appeared engaged throughout the interviews.

120The clinician said that the child’s views were independent, strong and consistent. The child spoke in an age-appropriate manner. She said there was no evidence of coaching or alienation and that the child was expressing her lived experiences with the father.

121The child told the clinician the following:

a) The mother is kind-hearted and always there for her. b) The father kicked her and the mother out of the family home. c) The father is a liar, a bully, and not a good man. d) The father would hit her if she didn’t answer homework correctly. e) One time, the father hit her in the head so hard, “I almost peed myself”. f) The father would tell her not to tell her teachers about him hitting him and told her that her half-brothers were in jail because they shared things and information with their teachers. g) The father uses mean language with the mother, calling her “a piece of shit”. h) The father has called the child a “devil, rat and snake” and calls her stupid. i) She had to continue on-line schooling in grade 6 because her father would not agree for her to return to school in person. j) The mother always encourages her to visit the father and build a relationship with him. k) She does not want to see the father. “Why have a relationship with someone who pulls you down and speaks badly of my mother?” l) She does not believe her father will change. m) She wants to make her own decision about if, and when, she sees the father. n) She would like to see the family court matter end.

7.4 The father

122The strongest evidence corroborating the mother’s version of events came from the father.

123The court will preface its comments by acknowledging that the father loves the child. He is in pain as he grieves the loss of this relationship. He is struggling with understanding why this has happened to him.

124Trials are often revealing.

125The father started off in his testimony as calm, measured, charming and self-effacing. This is likely the version of the father that Ms. Urbas observed in counseling.

126This version of the father quickly disappeared once his evidence was challenged.

127Judges often keep notes of their impressions of a witness while they are testifying. For instance, with the mother, the court noted that she appeared overwhelmed, intimidated by the process and submissive. The court noted how she appeared to shrink in her chair and made herself small during the trial.

128This trial was unusual in the volume of observations, in a relatively short time, that the court noted about the father during his testimony. This list includes that he:

a) Is domineering. b) Is authoritative. c) Is controlling. d) Is a bully. e) Is bombastic, aggressive and intimidating. The court could easily see why the mother is afraid of him. f) Was avoidant of difficult questions. He would not answer them and instead would embark on long speeches that were unrelated to the questions asked and fit his own agenda. g) Is quick to anger when challenged. h) Is manipulative. i) Is a rigid thinker. j) Is suspicious and distrustful. k) Is contemptuous of the mother. He does not respect her. l) Lacked any empathy or respect for the child’s experiences. m) Is self-righteous. n) Considers himself the victim. o) Is angry and bitter. p) Does not understand why the mother and the child are not doing what he wants and externalizes blame for this. q) Lacks any insight into his own conduct and why the mother and child fear him.

129The father was not a reliable nor a credible witness.

130The father claimed that he would always financially support the mother and the child. The evidence demonstrated otherwise. Within two months of the mother coming to Canada, with no English skills and being totally reliant upon him, he took her to a lawyer to have her sign a marriage contract releasing property rights in the matrimonial home.

131The father chose to pay no child support to the mother from August 2021 until the court ordered him to pay temporary child support starting on May 1, 2022. The father claimed that he paid no support because he wanted the judge to decide it and to also consider that he was not seeing the child. He was sending the message to the mother that this is the consequence when you defy him.

132The father’s financial conduct is even more outrageous because he said that he sold his home in 2022 and cleared $400,000. He testified that he sent between $60,000 and $80,000 to his mother in Africa to build and renovate a house. He also said that he sent between $20,000 to $30,000 to his brother in Africa. Yet, he paid no child support.

133This was financial abuse. The father was angry and financially punishing the mother. It is strong evidence of controlling and coercive behaviour.

134The father is resisting paying any spousal support to the mother and claimed that he can barely make ends meet. This is not true. He received significant proceeds from the sale of his home in 2022 and earns a good income.

135The father repeatedly expressed his resentment about the mother leaving him for financial advantage. This was skewed thinking. The mother was afraid of him. It took a lot of courage for her to finally leave him. She spoke no English and, except for her friendship with M.K., she was isolated. She was leaving to an uncertain future. She first explored going to a shelter before M.K. let her and the child stay with her.

136Further, the mother has not aggressively pursued her financial rights against the father. She agreed to the father paying child support arrears over a year. As will be set out below, she has made a modest claim for spousal support. The father should consider himself very fortunate that the mother is not pursuing property claims and tort claims against him (arising out of the family violence), in the Superior Court of Justice.

137The father claimed that in January 2010 he and the mother only had a ceremony in Kenya to celebrate that they would be living together. He said it was not a marriage. The court learned from the parties during the trial that this was culturally significant. The father acknowledged that the mother would suffer shame in the community for having had the child out of wedlock.

138The father maintained his position that there was no marriage even though there was significant evidence that the parties had married in Kenya. The mother filed a marriage certificate from Kenya. The father had his lawyer prepare a marriage contract for the mother to sign. It sets out that it is a marriage contract pursuant to section 52 of the Family Law Act and that the parties had been married in Kenya.

139The court finds that the father took this position during this case to humiliate the mother in their community. It was cruel and abusive behaviour.

140The court finds that the father controlled most aspects of the mother’s life and kept her isolated. He financially controlled her. The father testified that he took the mother everywhere when she first came to Canada.

141The father took no steps to help the mother become a Canadian citizen. He claimed that her English was not good enough, yet he prohibited her from going to school full-time and instead, insisted that she go to work.

142The court finds that the father has used the litigation process to try to control and intimidate the mother. His claim for joint-decision making responsibility was a non-starter. In this context, the court draws the conclusion that he maintained this claim as an intimidation tactic.

143There was no credible evidence that the mother committed family violence against the father.

144The father distorted reality. After making allegations about how terrible the mother had been during their relationship, the father claimed that he had a happy family prior to the parties’ separation. He claimed that he had a wonderful relationship with the child prior to the separation and said that she was mature and independent. Yet suddenly, upon separation, the child had no ability to express independent views.

145The father demonstrated no sensitivity to the child’s experiences with him. Instead, he claimed that the mother has totally manipulated her.

146There was no credible evidence of parental alienation presented.

147The evidence indicated that the mother has tried to encourage the child to see the father. The clinical notes of Shannon Deacon confirmed this. [4] The child also confirmed this to the clinician. The mother’s attempts may be ineffectual, but she is trying.

148The child reached out to the father in November 2022 to meet him at the Yorkdale mall. There is no credible evidence that the child or the mother knew that the father was in Africa at that time. Instead of taking advantage of this opportunity, the father chose to lash out at the mother and the child, accusing them of manipulating this situation to make them look good and to make him look bad.

149The father would not admit that he had done anything wrong when it was evident to the court that he is a very flawed parent. When asked by the mother’s counsel if he had considered apologizing to the child, he defiantly responded that he had nothing to apologize for. He claimed that he has never done anything to upset the child. His lack of insight into his conduct, despite his counseling sessions, makes him a poor candidate to change.

7.5 Findings of fact

150The court makes the following findings of fact:

a) The mother has always been the child’s primary caregiver and she has parented the child in a positive manner. She has made responsible decisions for the child. b) The child has had a dysfunctional and unstable relationship with the father. She is not close to him, does not feel heard or respected by him and does not feel emotionally safe with him. c) The mother is the parent who has met the child’s physical, emotional, psychological and developmental needs. The father shows no understanding about what those needs are. d) The father perpetrated significant and long-standing family violence against the mother in the presence of the child. e) The mother is justifiably afraid of the father. f) There is a significant power imbalance between the father and the mother which the father has taken advantage of. The mother should not be expected to engage with the father to make decisions about the child. g) The father perpetrated family violence against the child. h) There has been no parental alienation. The child’s views and wishes are independent. i) The child is mature and intelligent. Her views and wishes have been clear, consistent, strong and long-standing. j) The child’s reasons for not wanting to see her father are understandable and justified. He was and continues to be abusive to her and the mother. She does not feel emotionally safe with him. He is insensitive to her needs. Instead, he is focused on his own needs.

Part Eight – Parenting orders

151It is in the child’s best interests that she continues to have her primary residence with the mother and for the mother to have sole decision-making responsibility for her.

152It is not in the child’s best interests to provide the father with rights of information concerning her. The child feels harassed and disrespected by the father. She finds him unduly intrusive. The court will respect her privacy. The child will provide the father with any information about her life and engage with him again when she is ready.

153The court has no confidence that the father will sign consents for the mother to obtain or renew government documentation for the child or to permit the child to travel internationally with her. It is in the child’s best interests that this not be obstructed. The court will dispense with the father’s consent, as requested by the mother.

154It is not in the child’s best interests to order structured parenting time with the father. The child has understandable and legitimate reasons for not wanting parenting time with him at this time.

155The mother is not seeking an order for “no parenting time” and hopes that parenting time will take place in the future. The court is satisfied that she will responsibly facilitate parenting time once the child is ready. The court will order that parenting time between the child and the father shall be in the mother’s discretion. The mother shall take into consideration the views and wishes of the child in exercising that discretion.

156The court will order that the father shall not remove the child from the Province of Ontario without the prior written consent of the mother.

Part Nine – Reunification counseling

157The fathers seeks an order requiring the mother and the child to attend reunification counseling.

158The court has the authority to order reunification counseling pursuant to clauses 28 (1) (b) and (c) (vii) of the Act. See: Testani v. Haughton, 2016 ONSC 5827.

159Reunification therapy orders are often made in cases of parental alienation. See: A.M. v. C.H., 2019 ONCA 764, supra; X. v. Y., 2016 ONSC 545; MacLeod v. MacLeod, 2022 ONSC 2457.

160This is not a parental alienation case. However, the court’s ability to make a reunification therapy order is not restricted to parental alienation cases.

161At paragraph 18 of Testani, Justice David Jarvis set out the following considerations in making an order for reunification therapy:

1. Such orders are to be made sparingly.
2. There must be compelling evidence that the therapy will be beneficial.
3. The request must be adequately supported by a detailed proposal identifying the proposed counselor and what is expected.
4. Resistance to therapy is an important but it is not the determining factor whether such an order should be made.
5. Where a clinical investigation or an assessment is underway, no order should be made pending their conclusion.
6. Wherever practical, appropriate direction should be given to the counselor/therapist and a report made to the court.

162The court finds that it is not in the child’s best interests to order reunification therapy. The child does not want to engage in this process with the father. The mother does not want to engage directly with the father. They are the victims of family violence. Their feelings are justified and should be respected.

163The court also questions whether this form of therapy would be effective. The court has observed that the father has gained very little insight after his counseling sessions. The court is concerned that the father would see this process as an opportunity to try to regain the control he has lost over the mother and the child. Further, the effectiveness of therapy is often related to buy-in from the participants. The mother and the child are not ready to engage in a therapeutic process with the father and this should not be imposed on them in these circumstances.

Part Ten – What does the father need to do to repair his relationship with the mother?

164To move forward, the father will need to take responsibility for his large role in damaging his relationship with the child. He needs to stop blaming everyone else.

165The court suggests that the father take a parenting course specific to parenting pre-teens who have become estranged from their parents. Families in Transition may offer such programs.

166The father was on the right track by attending counseling sessions with Ms. Urbas. The court suggests that he continue this. The court also suggest that he provide Ms. Urbas with a copy of this decision so that she has more information to assist him.

167The father should not bring a motion to change until he has taken these steps.

168The court suggests (not orders) that the mother arrange individual counseling for the child so that the child can work through her feelings about her relationship with the father with a professional. And hopefully, with the end of this court case, and the pressures associated with it, the child will feel more comfortable starting counseling.

Part Eleven – Spousal support

11.1 Legal considerations

169Section 30 of the Family Law Act states that every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.

170Subsection 33 (8) of the Family Law Act sets out the purposes of spousal support and subsection 33 (9) sets out the considerations for the determination of the amount, if any, and duration of spousal support. The court has considered these subsections in making its decision.

171Spousal support is not merely a consideration of needs and means. In determining the appropriate amount of spousal support, compensatory and non-compensatory considerations should be taken into account in an effort to equitably alleviate the economic consequences of the breakdown of the relationship. See: Rioux v. Rioux, 2009 ONCA 569, [2009] 97 O.R. (3d) 102 (OCA). Entitlement can be based on compensatory, non-compensatory or contractual grounds. See: Bracklow v. Bracklow, [1999] 1 S.C.R. 420.

172The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11 stated that before applying the Spousal Support Advisory Guidelines (SSAG), entitlement to support must first be established. The court also stated that the SSAG, while only advisory, are a useful starting point to assess the quantum and duration of spousal support, once entitlement is established. The court wrote at paragraph 103:

In my view, when counsel fully address the Guidelines in argument, and a trial judge decides to award a quantum of support outside the suggested range, appellate review will be assisted by the inclusion of reasons explaining why the Guidelines do not provide an appropriate result. This is no different than a trial court distinguishing a significant authority relied upon by a party.

173The depth of need can be a strong non-compensatory factor pushing the amount of support higher in the range. See: Bastarache v. Bastarache, 2012 NBQB 75. If the recipient required training or education to improve their earning capacity, this can push the amount higher in the range for a short period of time. See: Jones v. Hugo, 2012 ONCJ 211.

174In determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient’s ability to support herself, in light of her income and reasonable expenses. See: Gray v. Gray, 2014 ONCA 659.

175A basic principle of spousal support law is that the recipient must make reasonable efforts to become economically self-sufficient. See: Dingle v. Dingle, 2010 ONCJ 731.

176In Mason v. Mason, [2016] ONCA 725, the Ontario Court of Appeal cautioned against courts defaulting to the middle range of the SSAG in a spousal support determination. Each case requires a contextual analysis. It wrote in paragraph 122:

122Further, in The Spousal Support Advisory Guidelines: A New and Improved User’s Guide to the Final Version, the authors note, at p. 1 of the Introduction, that one of the challenges of the SSAGs “is the problem of unsophisticated use.” The authors continue by stating:

For too many, using the Guidelines means just plugging the income figures into the software program, getting the range and choosing the mid-point. There is more to the advisory guidelines than this, and using them in this way can lead to inappropriate results.

11.2 Positions of the parties

177The mother is seeking spousal support of $350 each month for five years.

178The father claims that the mother is not entitled to support and asks that the mother’s claim for spousal support be dismissed.

11.3 Entitlement to support

179The court finds that the mother has a strong entitlement to compensatory spousal support. The parties had a traditional marriage. The mother stayed at home, raised the child and managed the household, while the father was able to advance his career.

180The father prevented the mother from upgrading her English and becoming more marketable. She only started taking English classes for one hour each day in 2017.

181The mother is the child’s sole caregiver. This role will likely compromise her future income earning capacity.

182The mother also has a strong non-compensatory claim for spousal support. She has suffered financial disadvantage from the breakdown of the marriage. Her standard of living dropped upon separation. The mother had been financially dependent on the father. The father earns much more income than her. The mother has no assets. The father owned a home. He shared none of the proceeds from the sale of the home with the mother.

11.4 Amount and duration of support

183The father is fortunate that the mother is only seeking spousal support of $350 each month for five years and that she is not seeking retroactive support from him. The evidence supported the court making an indefinite support order of at least the amount sought by her.

184The mother provided SSAG calculations based on the father earning annual income of $68,695 and her earning annual income of $21,580. This generated spousal support of $0 in the low range, $197 in the mid range and $418 in the high range, for an indefinite duration, subject to variation and possibly review, with a minimum duration of 5.75 years and a maximum duration of 11.5 years from the date of separation. The $350 requested by the mother is very reasonable given the strength of her compensatory support entitlement.

185The court also observes that the income figure used for the father in the calculations is low. It is based on his 2022 T4 slip for the pay period ending December 13, 2022. Projected for the full year, the father’s income would be $70,886. Further, the calculation does not account for the father traveling each year to Africa for 4-6 weeks. The father is likely capable of earning between $72,000 and $75,000 each year.

186The father submits that the mother is capable of earning at least $34,346 annually. She earned this at the daycare in 2020. [5] He seeks to impute this income to her for the purposes of the SSAG calculations. The mother left this job for one year after the separation and returned to it part-time while attending school for half-days. The father also alleges that the mother’s two sons should work and help her meet her expenses.

187The court finds that the mother’s choice to work part-time and go to school each weekday to improve her English is reasonable. The mother impressed the court when she expressed her determination to improve her English skills so that she can become more independent and financially self-sufficient. She wants the child and her to thrive, not merely financially survive.

188The court will not impute a higher income to the mother as requested by the father.

189The court agrees that the mother’s sons could help defray her expenses by working part-time while they continue their education. However, even accounting for this, her claim for spousal support remains modest.

190The court will order spousal support as requested by the mother.

Part Twelve – Conclusion

191The court makes final orders as follows:

a) The child shall have her primary residence with the mother. b) The mother shall have sole decision-making responsibility for the child. c) The mother may obtain or renew government documentation for the child, including passports, without the father’s consent. d) The mother may travel outside of Canada with the child without the father’s consent. e) The father’s parenting time shall be in the discretion of the mother. The mother shall consider the views and wishes of the child in exercising that discretion. f) The father shall not remove the child from the Province of Ontario without the mother’s written consent. g) The father shall pay the mother spousal support of $350 each month starting on March 1, 2023. h) A support deduction order shall issue. i) The balance of the claims made by the father are dismissed.

192The mother is the successful party in this matter. If she seeks her costs, she shall serve and file her written submissions by March 20, 2023. The father will have until April 3, 2023 to serve and file his written response. The submissions should not exceed three pages, not including any offer to settle or bill of costs. The submissions are to be delivered to the trial coordinator’s office.

193The court thanks counsel for their excellent presentation of this case.

Released: March 6, 2023

Justice Stanley B. Sherr

Notes

[1] The father claims that this was a ceremonial celebration and not a marriage. This will be discussed in more detail below. [2] The mother says this is the child’s version of events. The father acknowledged that he told the child to apologize to his son. [3] The ex-husband had custody of the sons. [4] Ms. Deacon reported that the mother said that she was there “because she wanted to help her daughter be OK with her father”. [5] It was not discussed if some of this income was from the Canada Emergency Recovery Benefit as daycares would have been closed during part of 2020 because of the pandemic.