D.B. v. S.C., 2025 ONCJ 203

Ontario Court of Justice

Date: April 14, 2025
Court File No.: Guelph D–221-24

Between:

D.B.
Applicant

— AND —

S.C.
Respondent

Before Justice K.S. Neill
Heard on March 31, 2025
Reasons for Judgment April 14, 2025

Counsel:
Desi Nikolova — counsel for the applicant
Erika MacLeod — counsel for the respondent

Overview

1The applicant (“the father”) and the respondent (“the mother”) are parents of one child G.B. born […], 2022. G.B. is 2 ½ years old. The parties were in an on-and-off again relationship from June 2021 to March 2024 and never resided together. The mother is 34 years old and an elementary school teacher residing in Guelph. The father is 59 years old and a nutritional consultant and owner of [name removed] Inc. residing in London. He has two older adult children from a prior relationship, one of which is now deceased.

2The parties met when the mother came to the father for consultation on nutrition. They began dating and the mother unexpectedly became pregnant. Since G.B.’s birth and after their separation, the father had regular weekly contact with G.B. but not overnight. In July 2024, the mother made allegations that the father had sexually abused G.B. and she stopped all contact between the father and G.B. The father has not seen G.B. since July 3, 2024.

3What is before the court is the father’s motion for parenting time.

Background

4Tragically, three days prior to G.B.’s birth, the father’s 25-year-old son was killed in a car accident in Los Angeles. The father has had to frequently travel to LA to deal with issues related to his son’s death.

5Since G.B.’s birth until July 2024, the father saw G.B. on a frequent basis, usually 4 times a week during the day. The father provided regular child support payments to the mother after separation up to $2,150 per month.

6In or about May 2024, the mother moved in with another man and would not tell the father of her whereabouts. The father requested a wellness check by the police. The police only contacted the mother by phone to confirm that she was fine.

7The father states that in early July 2024, the parties had a heated conversation as the mother demanded more money from the father, which he refused to pay. The father was under some financial stress as he had to pay over $100,000 for legal proceedings in the U.S. due to his son’s death. The mother threatened to “ruin him” and to withhold G.B. if he did not support her financially. Thereafter, the mother made allegations of sexual misconduct by the father and paternal grandfather towards G.B. and reported these to the Children’s Aid Society and the police. The Society only minimally investigated the matter and did not verify the concerns. The police did not lay any charges.

8The father alleges that the mother contacted his business clients, making defamatory statements against him, which have resulted in financial damages for the father. In October 2024, the father commenced a civil action for defamation against the mother.

9The father initially hired counsel after he was denied contact with G.B. in July 2024 to attempt to negotiate parenting time with the mother outside of court, without success. He hired his present counsel in November 2024 who contacted the mother by email on November 24, 2024 suggesting to return to parenting time three days a week for between 6.5 and 9.5 hours a visit, without overnights. As mother did not agree to any parenting time, on December 4, 2024, the father commenced an Application in the Ontario Court of Justice seeking sole or joint decision-making and gradually increasing parenting time. The father also sought an urgent priority case conference. In her endorsement dated December 20, 2024 granting a priority case conference to be heard on January 21, 2025, Justice Cleghorn indicated that “at minimum, counsel should be arranging parenting time for the father at a supervised access centre”.

10On the same day of Justice Cleghorn’s endorsement dated December 20, 2024, the father’s counsel sent an email to the mother’s counsel to suggest visits supervised by his 24-year-old daughter as he wanted to spend time with G.H. over the holidays. This offer was rejected on January 2, 2025 indicating that the father’s daughter was not an appropriate supervisor, without explanation. Although Ms. MacLeod indicated that she would seek instructions from her client regarding the father’s request, the father’s counsel received no further response.

11By the time that the matter was before the court on the priority case conference before Justice Cleghorn, the mother indicated that she would be commencing proceedings in the Superior Court of Justice (“SCJ”), and the mother wanted the OCJ matter transferred to the SCJ, which was denied by Justice Cleghorn. The mother would not agree to any supervised parenting time even at an access centre. The mother requested leave to bring a motion for a s. 30 assessment, which was also denied by Justice Cleghorn until the father’s parenting motion was heard, a proper case conference was held, and a response from the Office of the Children’s Lawyer (“OCL”) was received.

12On January 21, 2025, Justice Cleghorn adjourned the matter for a motion solely dealing with the father’s parenting time and set filing deadlines. She also made an order requesting the involvement of the OCL with a s. 112 report.

13On January 22, 2025, the mother’s Application was issued in the SCJ seeking a transfer of the OCJ Application to the SCJ.

14On January 28, 2025, the mother served and filed a Notice of Appeal of Justice Cleghorn’s decision refusing a motion for a s. 30 assessment and ordering OCL. The father completed his intakes for the OCL, but the mother did not, so the OCL did not accept the case. The mother subsequently explained that she did not complete the intake forms as the issue was under appeal.

15On February 27, 2025, the father brought a motion for a gradual increase in his parenting time, first supervised by his sister and then moving to unsupervised. The mother has responded and the father has filed a reply.

16When the matter was before this court on March 31, 2025 for argument of the father’s motion, the court was advised that the parties had also been before the SCJ on March 20, 2025. Two motions were brought before the SCJ by the mother to stay the temporary order of January 21, 2025 (which would mean that the father’s parenting time motion would not be heard) and to have the OCJ file transferred to the SCJ. A consent was reached between the parties to consolidate the OCJ matter with the SCJ application after the parenting time motion heard. There was a further request to consolidate the SCJ proceedings with the civil matter but there has been no consent on that issue yet. The Appeal was vacated, and the parties agreed to a s. 30 assessment being conducted. The parties have now agreed that Howard Hurwitz conduct the assessment and in correspondence Mr. Hurwitz indicates that he could start the assessment within a month. The parties are next before the SCJ on April 1, 2025 to address the issue of the s. 30 assessment.

Position of the Parties

The mother’s position:

17The mother’s position is that this motion should be adjourned until the results of the s. 30 assessment are received and the assessor can give guidance regarding what parenting time is in G.B.’s best interests.

The father’s position:

18The father would like his parenting time reinstated immediately and is proposing a gradual increase from supervised parenting time to unsupervised daytime visits, to overnight weekend parenting time.

Statutory Pathway for the Temporary Motions

19When making temporary parenting time orders, the court shall only take into account the best interests of the child in accordance with s. 24 of the Children’s Law Reform Act (“CLRA”), which provides as follows:

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Factors

(3) Factors related to the circumstances of a child include,

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

Factors relating to family violence

(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.

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child.

Allocation of parenting time

(6) 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.

Application to related orders

(7) This section applies with respect to interim parenting orders and contact orders, and to variations of parenting orders and contact orders or interim parenting orders and contact orders.

Best Interest Factors

20It is not disputed that the mother has been G.B.’s primary caregiver since birth. The only issue before the court is temporary parenting time for the father. Therefore, the focus of the analysis will be on what parenting time with the father is in G.B.’s best interests.

21Considering the best interest factors in s. 24(2) and (3) of the CLRA, there is no evidence that G.B. has any special needs. As she is only 2 ½ years old, her views and preferences cannot be articulated. However, she appears to love her father as evidenced by the mother’s own text messages.

22Until his contact with G.B. was terminated in July 2024, there is evidence that G.B. has a strong relationship with the father, the father saw her on a regular and weekly basis, there were no concerns with his parenting time or meeting G.B.’s needs; and overall the mother appeared willing to support his relationship with G.B.

23The father indicates that he was an involved parent from right after G.B. was born to do feedings, changing, bathing, taking her for walks and caring for her when she was sick. He spent a lot of time with G.B. both before and after separation, at least 4 times each week. He did have to travel and attend hearings in Los Angeles due to issues related to his son’s death. He usually had parenting time on Tuesdays from 3:30 to 8 p.m.; and Thursday, Saturday and Sunday from 10 a.m to 8 p.m. He would do activities with G.B. such as taking her to play centres, the Butterfly Conservatory, the Guelph Civic Museum, the library, walks and play dates. He would typically have parenting time at his parents’ residence where his sister also lives.

24The father states that he is a loving and devoted parent to G.B. He states that G.B.’s face would light up when she saw him. This is not disputed by the mother and prior to July 2024, there is evidence that the mother agreed with the positive relationship that G.B. had with her father. The father attaches messages to him from the mother stating that:

• July 15, 2023: You have been such an incredible father to G.B. with the time that you spend with her, she absolutely loves and adores you. She constantly talks about you, and literally chants and get so giddy whenever we say your name… You’re doing an amazing job D.

• August 31, 2023: “She (meaning G.B.) loves you so much.. you two have a special bond”.

• November 27, 2023: “I just want to express my immense gratitude for how hard you work to support both G.B. and I… And despite your insanely busy schedule, you always make time for G.B. when she asks for you, you make that stupid long drive just for her. And I’m forever grateful for that”.

• May (year unknown): “G.B. misses you lots she keeps talking about you and every time she pretends to talk to you on the phone. And says butterfly? LOL”.

25Until early July 2024, the stability that G.B. has always known was primarily residing with her mother and having regular liberal contact with her father, which all agreed was positive.

Sexual Assault Allegations

26In early July 2024, the mother made reports to both the London and Guelph Children’s Aid Society and Police that the father and paternal grandfather had sexually assaulted G.B.

Children’s Aid Society Records

27Portions of the records from Family & Children’s Services of Guelph and Wellington County (“Guelph CAS”) were filed.

28The mother’s counsel asks the court to give little to no weight to these records as they are significantly redacted. These records were requested by both counsel as extremely relevant to the issue of the father’s parenting time.

29The mother did not argue that they were inadmissible. Most of the statements made in the records were by the parties to workers, or professionals under a duty to report. Although not entirely clear that a formal Evidence Act notice was served, on balance these records would meet the test for admissibility of business records under s. 35 of the Evidence Act.

30It is clear that the mother disagrees with how the Society assessed the evidence of sexual abuse. Therefore, it is important to know exactly what she reported to the Society about G.B.’s statements to her and her behaviours, which form the basis for her concerns. It is also important to assess if what was reported to the Society is consistent with the mother’s affidavit evidence. Courts have relied upon such statements made to Society workers for the purpose of assessing consistency. Further, information reported to the Society by the police, school authorities and medical professionals who are bound by a duty to report issues of child abuse or neglect can be relied upon for their truth.¹

31I will give weight to the Society records for the purpose of this temporary motion.

32It appears as though the mother made a report to the London CAS and they did not conduct an investigation. As the father had parenting time with G.B. in Guelph, London CAS took the position that it should be Guelph CAS who investigates any concerns.

33The father and mother were interviewed separately by the Guelph CAS.

34The records from July to August 2024 indicate the following:

• The mother told the society worker that the father has inflicted “all forms of abuse” against G.B., “physical and sexual abuse by the father”.

• The mother believes that G.B.’s recent behaviours are “clear signs of sexual abuse”. G.B.’s speech has regressed; she has refused a blanket and acting like she is physically harmed; she covers the Barbie with a blanket and then covers the Barbie’s mouth. She nods her head when asked if Dada gave her a blanket. G.B. is aggressive in breastfeeding lately. G.B. said her bum is sad.

• In terms of physical abuse, the mother indicated that when G.B. was 5 months old she had a bump on her lip. When questioned about it, the father strongly said “nothing happened”.

• The mother asked G.B. why she feels sad after mom breastfeeds her. G.B. said “Daddy sad”. After G.B. made a comment, “Dad and boobies”, the mother asked her if dad touched her boobies and G.B. nodded her head yes. G.B. had marks on her bum area. The notes indicate that the mother has an “inner knowing” that G.B. suffered all forms of abuse by dad.

• The mother has seen G.B. touching her chest and pushing her breasts together. She has seen G.B. grinding on her knees while laying with her and humping her. G.B. has stood in front of the mirror saying she has a cute bum.

• The mother took G.B. to the hospital in or about July 3 or 4, 2024 and hospital staff said that G.B. had a hemorrhoid and did blood work. Staff refused to do sexual abuse tests and the mother expressed frustration about police not looking into the matter.

• The mother describes the father as verbally abusive but no physical violence.

• On or about July 3, 2024, the mother describes an incident over the weekend where the parents were arguing. They both called family members who came and took G.B. out of the situation. The conflict between them prompted family intervention by both maternal and paternal extended family trying to help sort out their issues.

• The matter was reported to the Guelph police by the mother, and police chose not to investigate as no tangible evidence. There is a note in the Society records that “Detective Gamsby feels that mom is making big assumptions”.

• The notes indicate that there is “no concrete evidence from these interviews that suggest sexual abuse by the father of G.B”.

• The mother told the Society that she suspected that the father sexually abused his daughter who is now in her 20s. There are no further details about why she suspects this.

• On August 15, 2024, a naturopathic doctor, Michelle, contacted the Society to report that on August 13, 2024, the mother disclosed to the doctor that G.B. told her that “daddy is playing with boobies”, and that G.B. puts toys in her vagina and thinks it is funny. G.B. has hemorrhoids. The mother believes that G.B. plays with her dolls in an “inappropriate way”. She covers her dolls with blankets and covers their eyes.

• The mother claims that since contact with the father has stopped, G.B.’s sexualized behaviour has stopped. The mother expressed worries that G.B. was having night terrors.

• The Society worker met with G.B. privately. G.B. was not very responsive. When asked if she liked her mom and her dad she nodded.

35After the interview on August 27, 2024, the society worker advised the mother that the interview with G.B. did not yield any concrete evidence of sexual abuse. There is no evidence that any concerns were verified by the Society.

36The mother is very disappointed that the Guelph CAS and the police did not take her concerns more seriously. The Guelph CAS records from August 2024 indicate that:

The mother is “writing up details of her concerns – cross referencing with child abuse textbooks. She is disappointed that FCS and the police didn’t take her concerns more seriously. FCS told her a conviction would be unlikely even if G.B. was older”.

37It appears that the Society was deferring the issue to a family court as they continued to “encourage the father to work with his lawyer regarding custody and access” and that “access may be addressed through family court”.

Concerns about the Paternal Grandfather

38The Guelph CAS records indicate that the mother also has concerns about the paternal grandfather as he was alone with G.B. for about 2 hours in June 2024. When asked by the society worker what information separates the father’s abuse from the grandfather’s abuse, the mother indicated that G.B. told her that “Papa” said she has pretty underwear.

39The worker noted that the mother “attempted to make allegations against the grandfather, however, she had no information to clearly identify the grandfather as a maltreater (other than possibly covering up for the father). There was no investigation done on the grandfather. It was noted that there was only a “report of vague suspicions of sexual abuse by the grandfather”.

Further Concerns in the Mother’s Affidavit

40In her affidavit sworn March 14, 2025, under the heading “Concerns that ‘the father’ was abusing G.B.”, the mother indicates that as G.B. grew older, she began to notice behavioural changes in her following visits with the father including:

• Sexualized play
• Comments including “daddy booby”
• G.B.’s awareness that she had breasts;
• G.B. trying to push her breasts together;
• Red marks on G.B.’s bottom;
• Asking to see family members’ belly buttons;
• Expressing sadness when a family member picked her up and touched her chest in the process;
• Regression in her speech capabilities in April/May 2024;
• Complaining of pain in her bottom and saying “dad hurt my bum” in June 2024; and
• Looking in the mirror and saying “papa cute underwear” and turning to look at her bottom in June 2024.
• On June 29, 2024, G.B. came home after a visit with the father and said “daddy touched my boobies”. Over the next few days G.B. aggressively touched her vagina and played in an overtly sexualized manner.

41The mother states that she is trained to recognize signs of child sexual abuse as part of her training to be a teacher. What the mother reported to Guelph CAS is consistent to what she has indicated in her affidavit. In fact, the Guelph CAS records provide more details than the mother’s affidavit does, which increases the weight to be given to them.

42On August 21, 2024, the mother took G.B. to see a homeopath, Diane Elms. A letter from Ms. Elms dated August 21, 2024 was filed wherein Ms. Elms confirmed her opinion that G.B. has undergone sexual trauma but could not identify who hurt her.

Evidentiary Concerns with Letters Attached to the Parties’ Affidavits

43Both parties have attached letters from professionals to their affidavits. The father attached two unsigned letters from his therapist, Ms. Morrison dated September 3, 2024 and February 24, 2025 confirming his involvement in emotional therapy and coaching due to the situation with the mother and lack of contact with his daughter. The mother attached a signed letter from a Homeopath, Ms. Diane Elms dated August 21, 2024 who met with the mother and G.B. on August 21, 2024.

44The court should be cautious about giving weight to letters as opposed to sworn affidavits, particularly from health practitioners who provide views and opinions on serious and highly contentious issues after having heard one side of the story.²

45With respect to the letter from Ms. Elms, her notes and records were not produced. Although Ms. Elms was concerned that G.B. indicated that her “bum” hurt, and when she raised her legs to point to where it hurt, G.B. was pointing to her vagina area, there is no evidence that Ms. Elms understood the full situation and that G.B. was diagnosed with having a hemorrhoid in July 2024.

46The mother’s counsel agrees that I cannot rely upon the letter from Ms. Elms for the truth of its contents but that it is evidence that another professional has concerns regarding G.B.’s behaviour.

47The letters from Ms. Morrison attached to the father’s affidavit include her opinion regarding the father’s professionalism and as a devoted father, and statements regarding the mother.

48I place little weight on the letters attached to both parties’ affidavits. However, I accept that the father has engaged in therapy with Ms. Morrison since April 2024 to deal with issues relating to G.B. and the mother and how the situation has impacted him emotionally. I also accept that the mother took G.B. to see a homeopath, Ms. Elms in August 2024 and that Ms. Elms raised concerns regarding G.B.’s behaviour during the one meeting that she had with her. However, I do not accept Ms. Elms’ letter as evidence that G.B. has suffered sexual abuse as she indicates.

49The issue of whether or not G.B. has been sexually abused is a significant issue in this case. If the mother wishes to rely upon the evidence of Ms. Elms, then it must be submitted in an affidavit with the opportunity for the affiant to be cross-examined.³

Family Violence

50The focus of the best interest analysis regarding the father’s parenting time is on allegations of family violence made by both parties and its impact on G.B.

51As reinforced by the CLRA, it is very important to take into consideration the presence of family violence in any family matter dealing with the parenting of a child.⁴

52Section 18(1) of the CLRA defines “family violence” very broadly, meaning:

“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, including direct or indirect exposure to such conduct”.

53Section 18(2) further defines family violence as:

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 necessities 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 damage of property.

54If the behaviour does amount to “family violence”, pursuant to s. 24(3)(j) of the Act, the court must determine the impact of the family violence on the following:

(a) The ability and willingness of the person who engaged in violence to care for and meet the needs of the child;
(b) The appropriateness of making an order that would require the person in respect of whom the order would apply to cooperate on issues affecting the child; and
(c) Any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

55In considering the impact of any family violence under s. 24(3)(j), the court shall take into account the factors outlined in s. 24(4). Section 24(2) of the CLRA also highlights the need for courts to consider family violence by specifically directing that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being when determining their best interests.⁵

56What is important to note in the caselaw is that family violence can include:⁶

• Making numerous unsubstantiated allegations against the other party.
• Unilaterally changing court-ordered parenting time terms without justification.
• Regularly engaging in behaviour that has the effect of undermining the other parent’s authority or influence and alienating the child from that parent.

57This all can inflict emotional distress on the other parent and to the child.

58Both parties claim abusive conduct by the other both during their relationship and after it ended, either directed towards each other or G.B. that must be considered.

59Justice Chappel in M.A.B. v. M.G.C.⁷, outlined a process of analyzing family violence claims as follows:

1. Assess the credibility of the allegations.
2. Determine whether the conduct constitutes “family violence” within the meaning of the legislation.
3. If the behaviour amounts to family violence, determine the impact of the family violence in accordance with section 24(3)(j).
4. In determining the impact of the family violence, take into account all relevant considerations, and specifically consider and weigh the factors listed in s. 24(4) of the CLRA.

Abuse by the Father

60The mother argues that the father has engaged in many forms of family violence including:

• The nature of the father’s business taking advantage of vulnerable persons including the mother;
• The nature of the parties’ relationship including sexual abuse of the mother by the father;
• The father commencing a civil action against the mother is a form of litigation abuse;
• The sexual abuse of G.B.

The father’s business taking advantage of others including the mother

61The mother argues that she was vulnerable at the time she first met the father, and the father used his position of power to manipulate her. She argues that the father engages in a business that exploits vulnerable people and even the nature of his business meets the definition of family violence.

62The father owns a company called [name removed], which offers a holistic approach to medicine. Although the father is medically trained, he does not hold himself out to be a doctor as the mother alleged. The mother became a patient of the father in May 2021 to deal with medical issues, including a sexually-transmitted infection (“STI”). The mother expressed a mistrust in Western medicine and was opposed to the COVID vaccines. The father did not disclose the mother’s medical condition in his affidavit, but the mother did in hers. The mother was treated by the father and took some of his courses to learn about holistic approaches to medicine.

63She states that the father misrepresented himself that he could cure her STI through his holistic medical approach. I note that there is no evidence that the mother continued to suffer from a STI after the father’s treatments.

64The father indicates that he has never been accused of any misconduct by his patients, relatives or friends. He assists with very vulnerable members of the community, including the elderly, young, disabled and sick persons. He volunteers at his local church.

65I cannot find that the nature of the father’s business meets the definition of “family violence” in the legislation being conduct by a family member towards another family member or one of the categories in s. 18(2). There is not enough evidence to determine if the father manipulated the mother to be involved in his treatments: that may be the issue of a separate civil action.

Sexual assault of the mother by the father

66The mother indicates that the father sexually assaulted her while he was her practitioner and breached a position of trust. The father adamantly denies this and indicates that the mother sexually pursued him as she wanted to be with an older man who could financially support her. He attaches sexualized pictures of the mother sent to him by the mother as proof that she pursued him, some of which are redacted due to nudity. The court does not condone the father attaching such vulnerable pictures of the mother in a public proceeding, although it is acknowledged that he redacted the pictures in an effort to protect the mother’s privacy and some of the pictures were already posted on her TikTok account. The father only attached these pictures in a response to the mother’s claims of sexual abuse. The father states that his romantic relationship with the mother only started after her treatment was completed.

67There is no evidence of any prior criminal activity by the father or a history of violence. There is not enough evidence to support that a sexual assault occurred in the context of this temporary motion.

Litigation Abuse

68The mother also claims the fact that the father started a civil action for defamation against her in October 2024 is a form of litigation abuse.

69As indicated in L.D.B. v. A.N.H.⁸:

“In the guidebook Family Law Handbook for Self-Represented Litigants (2006), the Canadian Judicial Council recognized litigation harassment as a form of abuse in family proceedings. This type of abuse occurs where one spouse uses the court’s process to continue to control, intimidate, embarrass, or harass the other spouse after their relationship has ended. Unfortunately, litigation abuse can be difficult to detect particularly at the outset of a family proceeding because courts may not be able to determine whether the conduct is caused by malicious intent or a genuine inability to navigate the legal system without assistance.

Where litigation abuse is not caused by a genuine inability to navigate the legal system, but is instead perpetrated to control, intimidate, or harass the other spouse, it clearly falls within the definition of “family violence”.”

70In the case of L.D.B. v. A.N.H. there were multiple court proceedings, the husband had a lengthy history of using the court’s process as a weapon to harass the wife, and he had been declared a vexatious litigant. The BC Court of Appeal found that this type of conduct constituted family violence.

71In the matter before the court, the father has just commenced a civil action for defamation and the pleadings in that proceeding were not filed in this proceeding so there is no evidence of exactly the claims that have been made or the mother’s response. Further, these family law proceedings in the Ontario Court of Justice were just commenced by the father on December 4, 2024, and it is only at the very beginning stages in the Ontario Court of Justice. The mother has appealed the first order made, and she has made a motion to have this matter transferred to the Superior Court of Justice, which has been consented to by the father.

72It is unclear if this situation falls into the category of “high conflict” as opposed to “litigation abuse”, particularly in these early stages in the proceeding.

Sexual Abuse of G.B.

73The mother only had concerns of sexual abuse of G.B. by the father towards the end of June 2024. The mother reported her concerns in detail to the Guelph CAS. The Guelph CAS found no concrete evidence to suggest sexual abuse. When G.B. was interviewed privately by the society worker, she did not disclose any abuse and indicated in the affirmative that she liked both her parents. The Guelph CAS did not verify any concerns and took no action.

74The mother reported the matter to the Guelph Police but they did not even investigate the concerns as no tangible evidence. The Officer expressed concerns to the Guelph Society that “mom is making big assumptions”.

75It is concerning that the mother also alleged that the paternal grandfather sexually abused G.B. on the basis that he spent 2 hours alone with her, and G.B. said that Papa said she has “pretty underwear”. The Guelph CAS found that there was no clear evidence to identify the grandfather as a maltreater and there was only “vague suspicions of sexual abuse by the grandfather”. The mother also told the Guelph CAS that she suspected that the father sexually abused his older daughter who is now in her 20s but provided no details.

76Although Ms. Elms also had concerns regarding G.B.’s behaviour, I did not find that this concluded that G.B. was sexually abused.

77While the statements made by G.B. may seem concerning, the father has adamantly denied that he sexually abused G.B. The father has no criminal record or history of violence. Based on the limited untested evidence before the court on this motion, I cannot conclude that G.B. was sexually abused by her father.

Abuse by the Mother

78The father claims that the mother has engaged in family violence due to the following:

• She has been emotionally abusive to him due to her erratic behaviour.
• She has made unsubstantiated allegations against him.
• She has unilaterally terminated his contact with his daughter.

The mother’s erratic behaviour

79The father states that although grief-stricken due to the death of his son, after G.B.’s birth the mother’s behaviour became erratic, she had significant mood swings, and was emotionally abusive. The mother either was very loving or aggressive, manipulative and controlling. Each time the father said “no” to the mother’s demands she would not let him see G.B. or makes threats to destroy him. At times she professed her love to the father, and within days her messages were full of rage and threats to destroy him. In a message to the father on July 15, 2023 attached to the father’s affidavit, the mother stated:

“I owe you a huge huge apology first off. And also to express immense gratitude.
I take full responsibility and accountability for how awful I have been to you since we broke up when I was 5 months pregnant. I poisoned myself and our relationship since then and it was like every single thing you did, I villainized you. I projected so much hate. I was so so so so so upset and let that cancerous feeling grow into the biggest tumour that affected the entire way that I saw you.
I am so sorry D. I was totally living in the past and was so unfair to you. I was so cold.
Its like that veil has been lifted and I am able to see myself more clearly than I ever have been able to. And I don’t like how I have acted towards you. That is not fair to you, G.B. or myself.
It is undeniable how beautiful your relationship is with “G.B” and I am so glad I realized how awful I have been now, because now I have the ability to see and stop projecting those horrible feelings onto you through her. I would have ruined that bond you have with her because I couldn’t get over my shit and that’s so not fair. That’s not the mother I would ever want to be, and I am so sorry to have done that so far to such a far extent.
I’m so grateful for every single thing that you do. I’m really sorry for not seeing you. Please forgive me. I love you.”

Unsubstantiated allegations of abuse

80After the mother made allegations of sexual misconduct against the father, the father indicates that she contacted his business clients and made defamatory statements against him in a personal and professional capacity, including financial damage to him. He has started a defamation civil lawsuit against the mother.

81The father alleges that the mother’s claims of sexual abuse of G.B. are unfounded. Neither the Society nor the police are pursuing these allegations.

Unilaterally terminating contact with G.B.

82Because of the mother’s allegations, the father has not seen G.B. since July 3, 2024, be over 9 months. Although the father attempted to negotiate through counsel even supervised parenting time, the mother denied all parenting time. The father was forced to seek a priority case conference and bring this motion to be able to see his daughter.

83All of this has resulted in distress and emotional harm to the father. He has been seeing a therapist for emotional therapy and coaching since April 2024.

Credibility Assessment

84It is very challenging to assess the veracity of family violence allegations in the context of temporary motions based on untested written evidence in the form of affidavits.⁹ On this temporary motion, the court only has fairly limited affidavit evidence before it, without the ability to fully assess credibility. The court must also be cognizant of the reality that some allegations may be fabricated or exaggerated.¹⁰

85The father’s counsel filed several cases involving allegations of sexual abuse by a parent and either allegations or convictions of domestic violence towards the other parent. Many of these cases were trial decisions where the credibility of the parties could be fully assessed through cross-examination, which is not the case on this temporary motion.

Conclusion on Family Violence

86Although it is unclear on the basis of limited affidavit evidence alone the extent of the family violence in the parties’ relationship, it is clear that there has been some family violence against both parties. It is also clear that the father had a very good relationship with G.B. prior to July 2024 and that he has not seen her in over 9 months. The main issue for the mother refusing the father’s parenting time with G.B. is the alleged sexual abuse by the father, which was not verified by the Society. The Society did not believe that the father’s parenting time should be terminated, and they have a statutory duty to protect children. The society worker tried to negotiate parenting time for the father with the mother, but she refused to provide any visits with the father, even supervised.

87The evidence of sexual abuse by the father presented by the mother and found in the Guelph CAS records is not strong and definitely does not support terminating the father’s parenting time. The police officer advised that the Guelph CAS that the mother is making “big assumptions”, which is supported by her claim that the paternal grandfather also sexually abused G.B. based on “vague suspicions” of sexual abuse.

88At minimum there should be supervised parenting time for the father, particularly as there has been a substantial period of no contact with G.B.

Supervision of Parenting Time

89I appreciate that the mother is only requesting an adjournment of the father’s motion for parenting time until the s. 30 assessment is completed to determine the recommendations of the assessor. The s. 30 assessment has yet to be started and it is not clear when it could be completed. The father has not seen G.B. in approximately 9 months as of the time this motion was argued. If the court does not grant the father’s parenting time until the s. 30 assessment is completed, this may mean that the father would not see his daughter for over a year. It was conceded by the father’s counsel that it may take another 2 to 4 months before the recommendations of the assessor were known.

90The mother argues that it took the father 6 months to commence his application for parenting time, so a further delay is not unreasonable. However, in August 2024, the Society recommended to the father that he work with his lawyer on the issues of parenting time, which he initially did attempt to do outside of court. When the mother continued to refuse parenting time and it appeared that a court application would be necessary, the father’s initial counsel could not be retained for a court application and the father had to retain new counsel, who started a court application shortly after being retained and requested a priority case conference.

91The parties have agreed to have the issue of the father’s parenting time on a temporary basis dealt with in this court, and all other matters to be dealt with in the Superior Court of Justice. To allow this motion to be adjourned is to accept a continuation of a termination of the father’s parenting time. A termination of parenting time, even temporarily, is an extreme remedy to be considered only in the exceptional circumstances and the court must carefully consider the option of supervision prior to termination.¹¹

92As indicated, I do not find that the allegations made by the mother support a continuing denial of parenting time. Even the presence of criminal charges or convictions for domestic violence does not necessarily support a restriction or denial of parenting time.¹²

93In considering the issue of supervision of the father’s parenting time, I have considered the following principles outlined in the M.A.B. v. M.G.C. case:

• The imposition of supervision on a parent’s time with a child materially impacts on the opportunity for meaningful parenting time and the quality of that time. Having regard for the principle set out in s. 24(6) of the CLRA that a child should have as much parenting time with each parent as is consistent with their best interests, there must be compelling reasons and evidence in support of the need for supervision.

• Supervised parenting time may be in the child’s best interests where the parent-child relationship has been severed or undermined for any reason, … the evidence indicates that supervision by a third party would assist the child in re-establishing the relationship. In these circumstances, supervision may be a valuable tool in implementing a gradual step-up plan for parenting time.

• If the court concludes that supervision of parenting time is appropriate, it should also consider whether it can be carried out by family members or friends in a normal setting rather than by a third party professional or agency. The decision respecting the appropriate form of supervised must be based on the child’s overall best interests and not the other party’s comfort level or personal preferences.

94Although the father does not necessarily agree that his parenting time needs to be supervised, he proposed his adult daughter in the past, who was rejected by the mother without reasons given. In his motion, if the court deemed that supervision was appropriate initially, the father proposed his sister or a mutually agreed upon supervisor. In her responding materials, the mother did not provide any facts to indicate that the paternal aunt was not appropriate. In submissions, Ms. MacLeod simply indicated that any family member would not be appropriate and if there is supervised parenting time it should be done at a facility, which may take months to schedule. In the past, the father regularly exercised parenting time at his parents’ home, where his sister resides. Therefore, G.B. is quite familiar with her paternal aunt and there is no reason to believe she is not an appropriate supervisor.

95The father has outlined a proposed gradual increase in his parenting time after one month of supervised parenting time. I firmly believe that the father’s parenting time should be gradually increased, but I will leave that issue to the Superior Court who will now be case managing this matter.

96A word of caution to both parents. A child can be directly or indirectly exposed to family violence. Indirect exposure including being involved in police and child protection investigations. It is important for the parties to understand at this early stage in these proceedings that research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives.¹³

97Any assessor conducting the s. 30 assessment should have the background to all of the issues of potential family violence in this case and not just the concerns of sexual harm to G.B.

Order

98Therefore, there will be a temporary without prejudice order as follows:

1. Commencing April 13, 2025, the applicant father shall have parenting time each week from Thursday 4 p.m. to 7:30 p.m. and Sunday from 1 p.m. to 7:30 p.m., which shall be supervised by the paternal aunt, Di.B (with her consent) or another mutually agreed upon third party, with consent not to be unreasonably withheld.

2. The balance of the father’s motion dated February 27, 2025 shall be adjourned to the next date this matter is before the Superior Court of Justice, to be spoken to.

99I would encourage the parties to agree on the issue of costs of this motion. However, if there is no agreement, the parties may serve and file costs submissions of no more than 3 pages, attaching any Offers to Settle and Bill of Costs by April 30, 2025.

Footnotes

1. 1N.P. v. D.B., 2019 ONCJ 291.
2. 2Piaskoski v. Piaskoski, 2024 ONSC 5474, para. 63.
3. 3Ceho v. Ceho, 2015 ONSC 5285.
4. 4Barendregt v. Grebliunas, 2022 SCC 22.
5. 5M.A.B. v. M.G.C., 2022 ONSC 7207.
6. 6Ibid.
7. 7Ibid.
8. 8L.D.B. v. A.N.H., 2023 BCCA 480.
9. 9Piaskoski v. Piaskoski, supra.
10. 10M.A.B. v. M.G.C., supra.
11. 11Jennings v. Garrett, 2004 CarswellOnt 2159 (Ont. S.C.)
12. 12Piaskoski, supra.
13. 13Barendregt v. Grebliunas, supra.