minicounsel

DATE: August 1, 2023 Court File Number DFO-19-15325 Ontario Court of Justice

Applicant: C.L. Counsel: Splane, J.

Respondent: P.S. Counsel: Pon, C.

Justice Maria N. Sirivar

Introduction

1The Respondent Mother brought an ex parte motion on September 13, 2022, seeking the return of the child from Montreal to Toronto and police enforcement of the final order of Sullivan J dated October 25, 2021. C.L. v. P.S., 2021 ONCJ 557 The ex parte motion was granted, on temporary without prejudice basis. The Respondent Mother travelled to Montreal, and with police assistance, she was able to bring the child back to Toronto.

2The Applicant Father was served, and arrangements were made by the court staff for the Respondent Mother’s documents to be translated from English to French for the Applicant Father. The Applicant Father retained counsel and filed materials. His documents were translated from French to English for the Respondent Mother. After many weeks, the motion proceeded as a bilingual matter but there were also French and Cambodian interpreters present.

3The Final Order provided for the Respondent Mother to have sole decision-making responsibility and primary residence. The Applicant Father was granted specified parenting which included one week in each of July and August in Montreal, where he resides.

[4] On this motion, the Respondent Mother seeks the following: a. police enforcement of the Final Order; b. that the Applicant Father’s parenting time to take place as follows: i. virtually on Tuesdays and Thursdays between 5:30 p.m. and 6:00 p.m.; and ii. in-person on alternate Saturdays, supervised by the Access Centre.

5The Court granted the Respondent Mother’s motion, with reasons to follow. The Court intended to deliver these reasons orally because the Respondent Mother speaks primarily Cambodian, and the Applicant Father’s preferred language is French. Delivering the reasons orally would allow the parents to benefit from interpreters in court.

6Unfortunately, the Court was unable to deliver the reasons orally on multiples occasions due to factors such as: issues with interpreters; the Applicant Father’s counsel being required in another court: technical issues related to the Zoom platform; and there not being sufficient time following the conference (when simultaneous interpretation was not available). As such, the reasons are being delivered in writing.

Respondent Mother’s Position

7The Respondent Mother’s position is that the Applicant’s Father’s in-person parenting time should be supervised because he cannot be trusted to return the child to the Respondent Mother’s care. In support of this position, the Respondent Mother submits that the Applicant Father overheld the child in Montreal for most of the summer, contrary to the Final Order, causing the child to miss the first week of school and risking her daycare placement. While the Respondent Mother agreed to a brief extension, she demanded that the child be returned on July 24, 2022. From that date, she pleaded and tried to negotiate with the Applicant Father for the return of the child. She was not able to retrieve the child until she was granted an order for police enforcement on September 13, 2022. Since that time, the Applicant Father has had virtual parenting time.

[8] The Respondent Mother argues that supervision of the Applicant Father’s parenting time is necessary because he has a history of disobeying court orders and points to the following examples: a. on March 16, 2021, after violating numerous disclosure orders, the Applicant Father’s pleadings, as they related to child support, were struck because of his failure to provide financial disclosure; b. six months later at trial, the Applicant Father disclosed that he had been working, for a year and a half at that point, as an engineer earning $60,000 per year; c. Sullivan J found that the Applicant Father took the child from daycare twice, contrary to the court order, which required police intervention; and d. Sullivan J found that the Applicant Father ignored the restraining order made by Sager J in October of 2018.

9The Respondent Mother submits that the Applicant Father has once again disobeyed a court order by overholding the child. She argues that the fact that the Applicant Father seeks to have the child placed in his care in Montreal demonstrates that lacks insight into his conduct. So long as this remains the case, he will continue to disobey court orders and cannot be trusted to return the child to the Respondent Mother in accordance with operative order.

Applicant Father’s Position

[10] Applicant Father’s position is that his parenting time should not be restricted because there no basis to do so and it could result in him being excluded from the child’s life. (Applicant Father’s request that the child reside with him in Montreal was not pursued in submissions.) The Applicant Father’s counsel acknowledged in submissions that this motion (and the Motion to Change) was prompted by the Applicant Father “overholding the child in Montreal during the summer of 2022”. He argues, however, that the Court should have regard to the following “relevant considerations” when assessing the Applicant Father’s actions: a. the Applicant Father’s concern that the Respondent Mother might take the child to Cambodia and not return; b. if the Respondent Mother took the child, the Respondent Father would have no recourse as Cambodia is not a signatory to the Hague Convention; c. conversely, in this situation the Respondent Mother was able to get the child back by “a simple ex parte motion”; and d. the Respondent Mother agreed to an extension of the Applicant Father’s parenting.

11The Applicant Father submits that he only disobeyed court orders when he was not able to follow them or when he had the Respondent Mother’s permission. Additionally, most of the examples cited by the Respondent Mother relate to payment of support/payment of money which have little to no relevance to her request to limit the Applicant Father’s parenting time. The Applicant Father submits that his most recent breach of a court order (i.e. withholding the child) only occurred because he did not have a choice. He was concerned that the Respondent Mother was planning to take the child to Cambodia.

12The Applicant Father argues that the Respondent Mother has not established that there is a risk that the child will be harmed in the Applicant Father’s care. During the period in question, the child was happy, well taken care of and spent time with her cousins in Montreal. The child was not abused or neglected in the Applicant Father’s care. The Applicant Father concludes, therefore, that “there is no good reason his time should be supervised or occur virtually”.

13The Applicant Father submits that restricting his parenting time, as suggested by the Respondent Mother, might result in him being effectively excluded from the child’s life. Additionally, requiring that his parenting time occur in Toronto limits the child’s ability to have contact with extended family on the Applicant Father’s side.

Law and Legal Principles

14In deciding issues related to parenting time, the Court must be guided by section 24 of the Children’s Law Reform Act. Section 24(1) of the CLRA mandates that parenting time be determined based on the best interests of the child and in accordance with the criteria set out in section 24(3) and (4). Subsection 24(3) provides that a person’s past conduct must be considered if it is relevant to the person’s ability to act as a parent.

15The determination of what is in a child’s best interest turns on the specific circumstances of each child and his or her family. Lahey v. Gauthier, 2016 ONCJ 417 Although the best interests of the child have been found to be met by having a loving relationship with both parents, it cannot pose a risk to the child’s physical or mental well-being. Gordon v. Goertz, [1996] 2 S.C.R. 27; see also Lahey v. Gauthier, 2016 ONCJ 417 at para 52 A failure or refusal to follow court orders as they relate to parenting time can result in changes being made to a parenting time order or sanctions being imposed. Lahey, supra at para 49

[16] The Court must also consider the impact of family violence. Like intimate partner violence, family violence can be direct or indirect and can take many forms, including physical violence, psychological abuse, financial abuse, and intimidation. Ahluwalia v. Ahluwalia, 2023 ONCA 476 at para 1 Section 18(1) of the CLRA defines family violence in the following terms: … 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. [Emphasis added]

[17] Subsection 24(4) of the CLRA enumerates factors courts should take into account when assessing the impact of family violence including: (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. Children’s Law Reform Act, R.S.O. 1990, c. C.12; see also E.M. v. L.M., 2021 ONCJ 704 at para 25 and J.B. v. J.N., 2020 ONCJ 483. [Emphasis Added]

18The negative effects of family violence on children are well documented. The perpetrator can pose a risk of physical and emotional harm to a child even after separation and even where the perpetrator has not physically assaulted the child or the other parent. E.M. v. L.M., 2021 ONCJ 704; J.B. v. J.N., 2020 ONCJ 483 Repeated breaches of court orders can be the basis of a finding that there is a pattern of coercive and controlling behaviour that constitutes family violence. K.D. v. K.S., 2022 ONCJ 73 at para 60

Analysis and Conclusion

19The Father’s submissions on the issue of travel to Cambodia are not persuasive as an explanation for overholding. Sullivan J addressed the issue of travel to Cambodia by both parents in his trial decision. I find that the Applicant Father is attempting to relitigate the issue.

20I agree with the Respondent Mother that the Applicant Father’s history of disobeying court orders, regardless of the subject matter, is relevant to this motion. First, it provides an indication to the Court as to whether the Applicant Father can be trusted to follow court orders in the future. Second, it establishes a pattern of coercive and controlling behaviour which constitutes family violence.

21I find that the Applicant Father perpetrated family violence against the Respondent Mother and the child. The orders he breached included a restraining order and parenting time orders where police intervention was required for the child to be returned to the Respondent Mother’s care. The text messages sent by the Applicant Father to the Respondent Mother contain threats against the Respondent Mother and the child. The Court finds the following statements, when read in the context of an ongoing exchange between the parents wherein the Applicant Mother is pleading with and attempting to negotiate with the Respondent Father for the return of the child, particularly concerning: “route 401 will take J.’s life”; “my destiny and J.’s destiny are on route 401”.

[22] Based on the forgoing, I find that it is the child best interest that the Applicant Father’s in-person parenting time be supervised because: a. the Court does not have confidence that the Applicant Father will return the child to the Respondent Mother’s care in accordance with any order made; b. the child being repeatedly subjected to police intervention and conflict because of the Applicant Father’s conduct places her at risk of emotional harm; and c. the Applicant Father’s threats raise serious concerns about the child safety in his care.

23The Court takes the Respondent Father’s past conduct and threats seriously. Given his lack of insight, or indifference, to the impact of his action, supervision of his parenting is the only way to ensure the child is emotionally and physically safe during the Applicant’s parenting time.

August 1, 2023

Madam Justice Maria N. Sirivar

C.L. v. P.S., 2023 ONCJ 352

Case Summary

Introduction

Respondent Mother’s Position