C.B.Z. v. A.R.J., 2026 ONCJ 163

ONTARIO COURT OF JUSTICE

CITATION: C.B.Z. v. A.R.J., 2026 ONCJ 163

DATE: 2026-03-23

COURT FILE No.: Woodstock D74/24

BETWEEN:

C.B.Z.

Applicant

— AND —

A.R.J.

Respondent

Before Justice S. E. J. Paull

Trial Heard on January 26-29, 2026

Reasons for Judgment released on March 23, 2026

Upasana Kang counsel for the applicant

W. Gerald Punnett counsel for the respondent

PAULL J.:

1The parties are the parents of two children, A.Z. born […], 2022 (female) and Z.D. born […], 2023 (female). A trial proceeded over four days to address the issues of decision-making, primary residence, parenting time, child support, and collateral issues.

2Each party sought sole decision-making and primary residence with parenting time to the other. Both parties sought to impute income on the other for the purposes of child support, and C.B.Z. sought a police enforcement clause.

3C.B.Z., the father of the children, gave evidence on his own behalf and called evidence from his mother, S.D., from a former neighbour, Nicholas Krammer, and from the parties’ former landlord, Dylan Harvey. He also called a former boss, Joe Perry.

4A.R.J., the mother of the children, gave evidence on her own behalf, and called evidence from her parents, N.J. and D.N. She also called her current partner, D.O. and his mother, D.A.

5The court also received evidence from Oxford CAS, through the affidavit of Kimberly Samaroo dated September 24, 2024 which the parties consented to file, and viva voce evidence from Alison Ernst, the current Family Service Worker employed by Hamilton Child and Family Supports (HCFS).

The Law

Best Interests and Family Violence

6Any proceeding involving children is determined with respect to the best interests of the particular child before the court in accordance with the considerations set out in subsections 24 (2) to (7) of the Children’s Law Reform Act (the Act).

7Subsection 24 (2) of the Act provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests.

8A 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 order that his or her caregiver be physically and emotionally safe. 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.

9Subsection 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,

(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 cooperate 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.

10Subsection 24 (4) of the Act sets out a list of factors for the court to consider related 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.

11Family violence has been given a comprehensive and useful definition in subsections 18 (1) and (2) of the Act. The definition of family violence in subsection 18 (1) of the Act reads as follows:

“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;

12Subsection 18 (2) of the Act reads as follows:

“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.

13Subsection 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.

14The list of best interests considerations in the Act is not exhaustive. White v. Kozun, 2021 ONSC 41; Phillips v. Phillips, 2021 ONSC 2480. 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. Phillips v. Phillips, 2021 ONSC 2480.

15No one factor in the statutory definition of a child’s best interests is given preeminence. The court should consider the level of hostility and the extent to which that hostility may undermine the child’s stability. Wilson v. Wilson, 2015 ONSC 479.

16In considering a child’s best interests it will often be important to determine if a parent will follow the terms of a court order that is meant to ensure their safety and protection. Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201; Seyad v. Pathan, 2022 ONCJ 501; Mulik v. McFarlane, 2023 ONCJ 148.

17Family violence includes direct and indirect exposure to the violence. Children can be the direct victims of the violence, be exposed directly to the family violence towards another family member or be indirectly exposed and victimized by the family violence. M.A.B. v. M.G.C., 2022 ONSC 7207.

18The Court must objectively assess the frequency, severity and recency of the incidents of family violence in weighing its impact upon a relationship. Human relationships are not easy, and the court must be very cautious, and must take a broad and comparative approach, in assessing the impact of family violence on post-separation co-parenting. Family violence, and its impact, is thus best assessed by the placement of each individual case on a spectrum that accounts for frequency, severity and recency rather than by using any kind of checklist-based metric. Abaza v. Adam, 2023 ONSC 1776.

19In 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. Bell v. Reinhardt, 2021 ONSC 3353.

Decision-Making and Parenting Time

20The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275 sets out the following principles in determining whether a joint decision-making responsibility 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.

21Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. Griffiths v. Griffiths, 2005 ONCJ 235, 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. Warcop v. Warcop.

22Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of one parent, that parent should not be able to use the conflict as justification to oppose a joint or shared parenting order. To do so allows an obdurate parent to engineer a result in his or her favour. However, where the conflict is extreme and there is substantial blame to be leveled against both parents, a joint or shared custody approach is not appropriate. Geremia v. Harb, 2008Canlii19764 (Ont. S.C).

23Courts 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. Roloson v. Clyde, 2017 ONSC 3642.

24Mutual trust and respect are basic elements for a joint decision-making responsibility order to work effectively. 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; El Khatib v. Noun, 2023 ONSC 1667.

25Families that require constant intervention by Children’s Aid Societies and the police due to high conflict are poor candidates for joint decision-making responsibility or parallel parenting orders. S.A. v. Y.M., 2020 ONCJ 147.

26Parents who make baseless reports to CAS not only undermine the viability of joint decision-making, but they also demonstrate a lack of insight by needlessly subjecting their child to intrusive interviews for strategic reasons. L.B. v. P.E., 2021 ONCJ 114; Harry v. Moore, 2021 ONCJ 341; M.J.L. v. C.L.F., 2022 ONCJ 243 (OCJ); N.T. v. R.R.K., 2017 ONCJ 829 (OCJ); S.A. v. Y.M., 2020 ONCJ 147 (OCJ); Dayboll v. Binag, 2022 ONSC 6510.

27The test for determining parenting time is what order is in the best interests of the children. Subsection 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.

Police Enforcement

28Police enforcement ought to be granted rarely and only in extraordinary circumstances. It should only be granted in very serious cases where there is solid evidence that such interference by the police is necessary. Bouchard v. Sgovio, 2021 ONCA 709.

29It is an order of last resort to be made sparingly and in exceptional circumstances. It can frighten children and polarize a difficult situation. Allen v. Grenier [1997] O.J. No. 1198 (General Div.); Klinkhammer v. Dolan and Tulk 2009 ONCJ 630; F.(M.) v. M. (C.) (2009), 2009 NSFC 15, 72 R.F.L. (6th) 226 (N.S. Fam. Ct.).

30Principles set out in Patterson v. Powell, 2014 ONSC 1419 include:

1. Section 36 of the Children's Law Reform Act is available to address a present and existing problem, not a future or potential problem. (Paras 14-15).

2. Section 36 does not make police enforcement available "as a long-term, multiple-use, on-demand enforcement tool." (Para 16)

3. Police enforcement of custody or access may give rise to a wide range of negative emotions and consequences in the child involved. (Paras 21-22)

4. Police enforcement may be essential for immediate retrieval of a child from a dangerous or inappropriate situation, but for ongoing enforcement, parties must look to less destructive and more creative alternatives. (Paras 23-24)

5. Police should be served with notice, if a party proposes a broad order under section 36(4) that they "do all things reasonably able to be done". (Para 30)

6. Police enforcement should be used sparingly, in exceptional circumstances, and as a last resort, and then only when it is shown to be required in the best interests of the child, after considering the risk of trauma to the child. (Paras 44-62)

7. Chronic noncompliance with a custody or access order is "likely ... a problem that police can't fix anyway." (Para 74).

Background and Evidence

31The parties met in high school and were still teenagers when they began cohabiting on October 31, 2019. Their relationship up until their separation on May 4, 2024 was marked by conflict, instability, and irresponsible cannabis use particularly during those periods when they lived on their own.

32They began residing together in Hamilton at C.B.Z.’s parents’ home, and by March 2020 they had obtained their own residence in Hamilton. When they became aware that A.R.J. was pregnant, they moved back in with the paternal grandparents in early 2022. This required them to relocate to Oxford County as C.B.Z.’s parents had since moved there from Hamilton.

33They moved out on their own again in Woodstock, but this was short-lived, and they returned to reside with the paternal grandparents. They were residing there when A.Z. was born.

34They stayed a few months with C.B.Z.’s parents then once again moved to their own apartment at […] Street, Woodstock for approximately one year. Oxford CAS became involved at that time and, apart from a short period when its file was closed when the parents were living with the paternal grandparents, child protection services has remained involved.

35C.B.Z. acknowledged that the state of their home when they were living on their own was often hazardous and uninhabitable. He testified that they were both “slobs, lazy, and depressed” and that there was garbage everywhere in the home. Both parties were taking medication for their mental health at that time. A.R.J. was on ODSP which covered the rent and C.B.Z. worked weekends as a bouncer at Nico’s, a bar in downtown Woodstock.

36C.B.Z. testified that A.R.J.’s parents brought food occasionally but that his parents provided more support. He testified that A.R.J. was volatile and violent, particularly when she did not have marijuana. He testified to a fight between A.R.J. and his mother in February 2022 which resulted in A.R.J. going to her parents’ home, but after a fight with her own parents shortly after, called to be picked up and returned to Woodstock. Both parties were regular and frequent users of marijuana. Both parties acknowledged that they got “high” a lot while they lived together.

37A.R.J. acknowledged that at one time she and C.B.Z. had a good relationship and that she got along well with his parents.

38During the time they lived with the paternal grandparents, A.R.J. was hospitalized with police assistance as a result of a threat of self-harm. She was held in the hospital for 72 hours and released.

39She acknowledged being in the hospital in 2022 which was when she was formally diagnosed with bipolar disorder, anxiety and depression, and ADHD, and that she is now taking additional medication.

40The parties were not initially aware of A.R.J.’s pregnancy with Z.D. As a result of the parents’ struggles a plan developed between A.R.J. and S.D., the paternal grandmother, that she would raise and potentially adopt the child. Z.D. was born […], 2023. The parents were residing on their own at that time with A.Z., and when Z.D. was released from the hospital she went to reside with S.D.

41A.R.J. acknowledged not telling her parents that she was pregnant with Z.D., and that at that time she and C.B.Z. were not prepared to care for another child. She agreed that S.D. care for Z.D. She was content with this arrangement while the parties were together.

42This plan was short-lived and lasted just over six months to when the parties separated in the early morning hours of May 5, 2024 following a major argument. A.R.J. alleges that C.B.Z. physically assaulted her, and C.B.Z. alleged that A.R.J. struck him four times and that he only hit her with a pillow in self-defense. In cross-examination he went further and stated she had tried to break a television over his head. The police attended and A.R.J. testified that she was taken outside by the police and that her parents later attended and she went to their home. C.B.Z. left with A.Z. and she did not see her for four days.

43In addition to the events around the parties’ separation, they made allegations against the other of repeated physical assaults. A.R.J. testified that C.B.Z. frequently hit her when they argued, and that this occurred almost daily. C.B.Z. alleges that if he did not supply A.R.J. with marijuana that she would attack him and his mother physically. He testified that even his mother was “forced to supply money” for marijuana for A.R.J. He alleged that she broke two televisions over his head and attacked him in his sleep. Each party adamantly denied the others’ allegations. Both parties blamed the other entirely for the level of conflict throughout their relationship

44A.R.J. testified that Z.D. was conceived as a result of a sexual assault by C.B.Z.. She disclosed this following the parties’ separation and that it only happened on this one occasion. C.B.Z. adamantly denied the allegation he had ever forced sexual intercourse with A.R.J.

45C.B.Z. testified that when they were together he did the majority of work and that A.R.J. just smoked marijuana and was uninvolved. Additionally, C.B.Z. testified that CAS became involved because they were first-time parents and due to A.R.J.’s erratic behaviour in the hospital. During this time C.B.Z. acknowledged that he “reacted poorly” to the CAS involvement but did not elaborate further.

46A.R.J. testified that during the relationship she did the majority of the work caring for A.Z. and that C.B.Z. was either working, sleeping, or playing video games.

47Following the parties’ separation, and once Oxford CAS completed its investigations in the summer of 2024, it confirmed that there were no concerns that would prevent either parent from providing care for the children. Despite this, A.R.J. continued to withhold the children. She testified she remained concerned about C.B.Z.’s ability to parent safely.

48C.B.Z. was not prepared to attend for visits in Hamilton, and as a result he had no parenting time with the children until October 29, 2024 when the parties consented to a 4/3/3/4 shared parenting arrangement which has remained in place. The court imposed additional terms including that the parties continue to reside with their respective parents.

49Despite this order, A.R.J. moved to Acton with her partner and his family sometime in late February or early March, 2025. The worker from HCFS did confirm that A.R.J. advised her of the move and that she attended the home several times and had no concerns. On March 11, 2025 when the matter was returned to court, the parties consented to an order removing the term that required them to continue to reside with their parents.

50The medical records for A.Z. were filed which suggest that there were times both parents took her in in for appointments. Further, it appeared that S.D. was significantly involved. Of concern is the medical note from July 24, 2023, prior to the parties’ separation when the doctor was required to make a follow-up call to the parents because they had not followed through with an x-ray for A.Z. that had been ordered two weeks prior.

51C.B.Z. testified he made appointments for the children including with the family doctor and pediatrician. He testified he always let A.R.J. know about appointments for the children and that she chose not to attend. He later acknowledged in direct evidence that he did not always let A.R.J. know.

52A.R.J. testified that she organized and attended appointments for the children. With the assistance of D.O.’s mother, she and the children now have a new family doctor in Acton. She also arranged for the children to see a dentist and for A.Z. to see a pediatric optometrist. She also arranged and attends with the children for swimming on Saturday mornings.

53A.R.J. and C.B.Z. both participated in arranging and attending the intake for speech therapy for A.Z. However, it is clear from the records filed from the speech therapist that A.R.J. was not able to consistently ensure A.Z.’s attendance. She testified that given the distance from Acton to Woodstock and that she does not drive, it was a challenge for her to get A.Z. there. She further testified that she has investigated speech therapy options in Acton and found a service that she can get to by city bus with A.Z. if she cannot arrange for a ride. A.R.J. testified that she attended the local school in Acton and obtained the necessary registration information for A.Z. for the fall of 2026.

54OPP occurrence reports were filed which outlined multiple contacts from the parents and grandparents related to “custody issues”. The occurrence report on August 2, 2025 included the reference that the police provided advice to both parents on how to “be civil and to communicate clearly”. No charges were ever laid.

55The paternal grandmother, S.D., testified as follows:

1. C.B.Z. continues to live with her and her partner Jeremy.

2. She had a “great relationship” with A.R.J. until the separation in May 2024, and since then their relationship has not been good.

3. Prior to separation the parents lived with them at various times and she provided significant practical and financial support to them. This included transportation as neither of them drove.

4. When the parents lived on their own, she continued to support them, including helping them clean when the condition of their home became unhygienic.

5. She confirmed an arrangement with A.R.J. that Z.D. would reside primarily with her as the parents did not think they could manage another child.

6. When Z.D. was released from the hospital she came to her home and A.R.J. returned to the apartment with C.B.Z. and A.Z.

7. Up until the parents separated she cared for Z.D. She would still provide permanent care for Z.D. if ever required.

8. C.B.Z. told her that both he and A.R.J. worked together to make appointments for the children and communicated by text.

9. They live in a home in a small community outside Woodstock with no bus service, so she and her partner continue to provide most of the transportation as C.B.Z. does not drive. She has spoken to C.B.Z. about getting his driver’s license, but he has not followed through.

56Joe Perry gave evidence on behalf of C.B.Z. He testified that he owned Nico’s Bar in downtown Woodstock up until the spring of 2025 and hired C.B.Z. as a bouncer three or four years ago. He thought highly of C.B.Z. and confirmed that he worked two and sometimes three nights per week, for approximately six hours per night.

57Nicholas Krammer gave evidence on behalf of C.B.Z. and testified that he was a neighbour and acquaintance of the parents when they all lived in units at […] Street in Woodstock. He interacted with both parents, but mostly A.R.J., when he was outside the residence smoking. He heard yelling between the parents but nothing he felt was out of the ordinary. He went to smoke marijuana outside and would frequently see A.R.J. who was also smoking marijuana. This occurred mostly during the day but occasionally in the evening.

58Dylan Harvey testified that he was the property manager at […] Street, Woodstock when the parties and A.Z. lived there. He received numerous complaints from the neighbors about the parents arguing, the odor coming from their unit, and the untidiness and garbage around the unit. He stated that the odor and fruit flies in their apartment were so bad they were going through the ductwork to other units in the building. He spoke to them repeatedly about these issues. The only thing he felt that improved the situation was when he called C.B.Z.’s mother, S.D., who had co-signed the lease, and she attended. The parents did not dispute this evidence and S.D. confirmed she went over and helped them clean.

59A.R.J. acknowledged leaving with A.Z. in July 2025 from her parents’ home for one week and not letting anyone know where she was going. She stated that she did this because she was scared that C.B.Z. would “take A.Z. and run” and that she had texts from S.D. to C.B.Z. stating this. The texts were not produced. She later acknowledged she was with her boyfriend at the time in Woodstock for the week.

60A.R.J. testified that she lives in Acton with her partner, D.O., and his family, in a three-bedroom home with A.Z. having her own room and Z.D. sleeping in her room. She has lived there for approximately one year and has a close relationship with D.O. and his family. They enjoy activities together as a family, including at the family cottage, and doing outings including swimming lessons on Saturday mornings.

61A.R.J. acknowledged that she still smokes marijuana but much less than prior to separation. She testified that D.O. has a strong relationship with the children and takes an active interest in their care and activities.

62A.R.J. stated that D.O.’s mother, D.A., is also very supportive and takes an active interest in the children’s care and activities including helping to make appointments and arrange for transportation. Her parents, D.N. and N.J., are also supportive and they see the children regularly.

63D.O. gave evidence on A.R.J.’s behalf which included the following:

1. He has been in a relationship with A.R.J. and they have lived together in his mother’s home for approximately two years. He loves the children like they were his own and he enjoys spending time with them

2. He works full time for Ellis Don doing landscaping in the summer and snow removal in the winter. He also occasionally delivers flowers on the weekends for a local business.

3. He felt he had a strong relationship with A.R.J. which he described as healthy and happy and that he will fully support her and the children. He has a vehicle and helps drive A.R.J. and the children to appointments and activities.

4. He has no criminal record.

64D.O.’s mother, D.A., gave evidence on A.R.J.’s behalf which included the following:

1. She has worked for Peel region for 18 years, and she mostly works from home.

2. She has observed a close and loving relationship between A.R.J. and the children and between A.R.J. and her son.

3. As she works from home she is generally present for the parenting time exchanges. She observed that A.Z. does not transition between the parents well and is upset to have to leave.

4. She has called Public Health and the CAS as a result of the children attending from C.B.Z.’s home with lice on more than one occasion.

5. She has assisted with appointments and transportation and in getting a family doctor in Acton for A.R.J. and the children. She is aware that A.R.J. is on medication for her mental health and assists her in attending her doctors appointments.

6. She has no criminal record and no prior CAS involvement.

65A.R.J.’s father, N.J., testified as follows:

1. He has known C.B.Z. for many years but has only seen him in person perhaps 10 times.

2. Following the parents’ separation he believed that a relative of C.B.Z.’s was watching and videotaping outside his home.

3. He acknowledged he was not made aware of A.R.J.’s pregnancy with Z.D., and that this disappointed him.

4. Following the separation, A.R.J. came to live with them, and then later Z.D. and A.Z. lived with them.

5. In July 2024 A.R.J. left their home with A.Z. without notice. He was concerned and posted that they were missing on Facebook. When she returned in approximately a week, they became aware that she was at her boyfriend’s home in Woodstock.

6. When A.R.J. moved to Acton, she again left without letting them know in advance. He acknowledged a “rocky” relationship with A.R.J. when she was growing up, but that he sees the children regularly now.

66A.R.J.’s mother, D.N., testified as follows:

1. A.R.J. left home when she was 16 years old without telling them where she was going. She reported to the police that A.R.J. was missing and her belief that she was with her boyfriend. A.R.J. returned home when she was 17.

2. She has no relationship with C.B.Z. He came to their home only once and she would never permit him to return. She did not elaborate on why this was the case. It was only A.R.J. and the children that would visit.

3. When A.R.J. left with A.Z. in July 2024 without telling them where she was going, she was worried and called the police.

4. A.R.J. never told them about Z.D. and they only found out about her when the parties separated in May 2024.

5. She has no criminal record or CAS history. She will continue to support A.R.J. and the children in any way she can.

67The affidavit of Oxford CAS worker Kimberly Samaroo dated September 24, 2024 was filed on consent as evidence in the trial. It noted the following involvement

1. The CAS received a referral from the Woodstock General Hospital in January 2022 when A.Z. was born expressing concerns and noting that the parents were young, uncooperative, and living in a motel.

2. Soon after a worker visited the parents and A.Z. at the paternal grandmother’s home where they had moved. The worker felt that the parents had good support, and that A.R.J. was a good advocate for herself and A.Z., and the file was closed with no protection concerns verified.

3. A subsequent referral was received by a Public Health Nurse on August 31, 2023 expressing concerns for A.Z.’s development, C.B.Z.’s treatment of A.Z., and the unsanitary and unsafe condition of the home (the parents were residing in their own residence with A.Z. by that time).

4. During the investigation the worker engaged the support of the band representative from Six Nations as A.R.J. was a member of the lower Cayuga First Nation.

5. The worker observed concerns with the condition of the home, and the parents lack of planning for the new baby that was due in October 2023. C.B.Z. denied that he had been yelling and spanking A.Z.

6. Z.D. was placed in the care of the paternal grandmother after her birth on October 2, 2023 pursuant to a family plan between the parents, the paternal grandparents, and Six Nations.

7. The Society verified concerns of limited caregiver skills with respect to both parents’ care of A.Z. The file was transferred to ongoing service on November 2, 2023.

8. Over the proceeding months, the parents continued to struggle regarding the state of the home and to provide for A.Z.’s basic needs. Community service providers reported concerns with A.Z.’s development, the parent’s mental health and capacity, and concerns with ongoing conflict between the parents.

9. Following the parents’ separation in May 2024, A.R.J. and later A.Z. went to Hamilton to reside with the maternal grandparents, and C.B.Z. went to his parents (where Z.D. was already residing).

10. On May 6, 2024 A.R.J. disclosed that she was sexually assaulted by C.B.Z. which resulted in the conception of Z.D. During the investigation C.B.Z. was not permitted to be alone with the children and returned to the parties’ apartment.

11. Later in May 2024 a family plan was agreed to that A.Z. would reside with A.R.J. and that Z.D. would reside with C.B.Z. and S.D., and that the children would be together each weekend by alternating between homes.

12. The parties continued to make allegations against the other including of physical abuse towards the children, and the parties and their families engaged in ongoing conflict. As a result, the Society began “observing” parenting exchanges.

13. On May 30, 2024 the worker observed concerning bruises on A.Z. after her return from a weekend visit at C.B.Z.’s home. While the Society investigated the parties agreed that C.B.Z.’s parenting time was to be “paused” and Z.D. went to reside with A.R.J.

14. At the conclusion of the investigation the Society did not verify child protection concerns with either parent, and closed the investigation file on July 12, 2024. The ongoing file remained open.

15. Following the conclusion of the investigation, A.R.J. withheld the girls from C.B.Z. due to her continuing concerns of physical abuse.

16. On July 5, 2024 the Society became aware that A.R.J. had left her parents’ home with A.Z. and did not immediately return. The maternal grandparents did not know where she was and believed that she was with C.B.Z. A missing persons report was filed at the insistence of the worker.

17. A.R.J. and A.Z. returned to the maternal grandparents home several days later. At a subsequent meeting A.R.J. advised the worker that she was in Woodstock with her boyfriend. At that time the worker observed both children in A.R.J.’s care and they appeared happy and healthy.

18. Both parents reported to the worker that they were engaged with counselling and other supports.

19. The Society concluded that it had no immediate child protection concerns related to either parent. However, if the parents were to reconcile, the Society would have concerns about risk of harm to the children due to exposure to adult conflict between the parents.

20. The Society recommended that both parents engage in services related to their mental health and parenting to ensure that they can provide adequate care and support to the children.

21. As A.R.J. and the children were residing in Hamilton, the file was transferred in October 2024 to Hamilton Child and Family Supports. At the time of transfer the Society concluded that both parents were working cooperatively with the Society, the Band, family supports and community services to increase their stability and parenting skills, and that the parent’s efforts were ongoing.

68Allison Ernst, the Family Service Worker from Hamilton Child and Family Supports testified as follows:

1. She has been involved with the family since August 2024 and has been the primary worker after the file was transferred from Oxford CAS in October 2024. She met C.B.Z. once in his home and met with A.R.J. at her parents’ home in Hamilton and at her current residence in Acton.

2. She assessed both parents’ homes to be safe and appropriate and that the children looked comfortable and well cared for in each parent’s care.

3. A.R.J. made her aware that she moved from Hamilton to Acton when A.R.J. called her in March 2025.

4. Since her involvement no protection concerns have been verified with either parent despite both continuing to make allegations against the other.

5. HCFS had planned on closing its file. However, the parents’ continued allegations have prevented this. She felt that both parents were “highly invested” in the conflict and continue to see issues with the other. She indicated that both parents would benefit from co-parenting programming.

6. She noted an increase in the allegations and reports received from the parents as the trial approached.

Analysis

69The exercise of fact-finding is impacted primarily by the court’s credibility assessment of the parties who offered dramatically opposing evidence about the nature of their relationship, the history of care for the children, the allegations of domestic violence, and A.R.J.’s allegation of sexual assault.

70There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence. R. v. D.R. [1966] 2 S.C.R. 291 at [para.] 93 and R. v. J.H..

71I accept the evidence provided by Oxford CAS and HCFS. They are independent parties to this proceeding with the statutory duty to investigate child protection concerns and work with families to mitigate those concerns. The evidence was based on the workers’ direct observations or acknowledgements by the parties. The independent and professional nature of their involvement lend credence to the evidence provided.

72It is clear from the evidence from Oxford CAS that the parties’ relationship was fraught with instability and domestic conflict, particularly when the parties resided on their own. These factors directly impacted A.Z. and the parents’ ability to provide appropriate care. The unsafe and unhygienic state of their home was observed by the worker, S.D., and their landlord, Dylan Harvey.

73Neither party contested the evidence of Dylan Harvey. He was required to address repeated complaints by neighbours about the parties’ arguments and the unhygienic state of their home. He testified that the odor and fruit flies from the parties’ unit were to such an extent that they were going through the ductwork in the building to other units. This illustrates how deplorable their home was.

74There were aspects of both parties’ evidence that were problematic, and there were concerns with both parties’ credibility at times, particularly with respect to C.B.Z.

75I do not accept C.B.Z.’s evidence regarding his and A.R.J.’s marijuana use. There were internal inconsistencies in his evidence. He acknowledged that both parties “got high all the time”, but stated that after A.Z. was born, he stopped using entirely. As a result, he alleged that he was the “only sober parent”. When challenged under cross-examination he admitted that “technically, yes”, he continued to use marijuana after A.Z.’s birth. He testified that when he got “too high” he would become physically ill and vomit, which is indicative of heavy marijuana use.

76Further, his evidence regarding A.R.J.’s behaviour around her use of marijuana was inconsistent with the other evidence he offered. He testified that if he did not continually provide A.R.J. with marijuana that she would physically attack him and his mother. He stated that A.R.J. attacked his mother and that she was “forced to supply money” for A.R.J.’s marijuana.

77This was inconsistent with the evidence of his mother. S.D. did not testify that A.R.J. attacked or coerced her, or that she was forced to provide any money for marijuana. Neither did she testify to witnessing A.R.J. ever attacking her son during those periods when they lived in her home. To the contrary, S.D.’s testimony was that she had a “great relationship” with A.R.J. up until the parties separated in May 2024, and that since that time their relationship has been strained. This was consistent with A.R.J.’s evidence.

78A.R.J. acknowledged the parties used marijuana heavily when they were together. She testified that she has cut back significantly but still uses it occasionally. Her current use was corroborated by D.A., who has lived with her for the last year.

79The parties’ neighbour, Nicholas Krammer stated that he met with A.R.J. outside to smoke marijuana frequently during the day and occasionally in the evening. It was submitted on C.B.Z.’s behalf that this establishes that A.R.J. was frequently leaving A.Z. unattended in order to consume marijuana.

80I am not persuaded that A.R.J. left A.Z. unattended during the day or during the evening. A.R.J. was candid about her marijuana use with the neighbour but denied that A.Z. was left unattended. She testified that the children were with C.B.Z. when she was outside. She stated that he was always home during the day, which was consistent with the evidence of C.B.Z. and his former boss about his work schedule. She indicated that she nonetheless had a baby monitor with her.

81Mr. Krammer testified he was aware the parties had children and that he thought they were in the apartment on their own. He stated he was aware that C.B.Z. worked some nights. However, he was mistaken that both children were living with the parents. Only A.Z. was living with them at that time. Further, he testified to his general belief, but provided no specific facts which suggested he was aware whether C.B.Z. was home or not. He was candid that he really did not think about it at the time. I am not persuaded that his evidence establishes that A.R.Z. left A.Z. unattended.

82More importantly, there was no evidence that C.B.Z. raised this concern with the CAS worker or his mother at the time, which would have been reasonably expected given his stated level of concern at trial.

83A.R.J. did not deny or minimize her use of marijuana at the time and her evidence remained consistent. I accept her evidence on this issue. I do not accept that she left A.Z. unattended in order to smoke marijuana outside.

84Overall, I do not accept C.B.Z.’s evidence that he stopped using marijuana following the birth of A.Z., that he has remained abstinent, or with respect to A.R.J.’s use. I found his evidence on these issues, including that he was the “only sober parent”, to be self-serving and lacking credibility. I find that both parents used marijuana excessively including while in a caregiving role in a manner that negatively impacted their capacity to parent and to maintain a safe and hygienic home environment.

85There were areas of A.R.J.’s evidence which were problematic. She acknowledged leaving her parents’ home with A.Z. in July 2024 and not telling anyone, including her parents, where she was going. She stated she did this out of fear that C.B.Z. was going to abduct A.Z. There was no other evidence to support this notion, and no evidence she raised this is a concern with the CAS worker before or after the incident.

86A.R.J. testified that she had a text message between C.B.Z. and his mother where his intent to “take A.Z. and run” was expressed. However, the text was not provided during the trial and I draw an adverse inference against her for her failure to do so.

87I do not accept that she left with A.Z. because of fear of C.B.Z. She left to be with her boyfriend at the time. I accept her parents’ evidence that she had a history of leaving without telling them, including when she moved to Acton in early 2025 to be with D.O. and his family.

88Both parties alleged being the victim of regular and repeated physical abuse. I am not entirely persuaded by either parties’ narrative on this issue. The Oxford CAS and HCPS have been involved for all but a short period since 2022 and their evidence did not verify protection concerns related to the specific allegations of each party of physical violence, or violence directed towards the children. It did verify ongoing concerns for both parents with respect to parental conflict, lack of parenting skills, and capacity.

89I am also not persuaded by either parties’ position that the other was the sole aggressor and entirely responsible for the conflict.

90Parental conflict has been repeatedly reported by the CAS workers, the police, and service providers. Mr. Krammer heard the parties yelling, and Mr. Harvey was required to address the parents’ conflict as a result of multiple complaints by their neighbours.

91The parties’ relationship was unstable and conflictual. I find that the parties are equally responsibility for the high level of conflict, which included physical aggression by both parties at times. This persisted throughout their relationship, including on the day they separated. A.Z. would have been repeatedly exposed to it.

92A.R.J. alleged a single incident of sexual assault that occurred when Z.D. was conceived. A.R.J. acknowledged that the parties were likely “high” at the time. She provided emotional testimony that she recalled C.B.Z.’s hands around her neck so hard that she could not breathe, and that she thought that she “fell asleep”. She testified that C.B.Z. later told her that she was not breathing.

93C.B.Z. adamantly denied the assault, and stated, “why would I assault somebody I had no sexual interest in?”.

94On a balance of probabilities, I accept the evidence of A.R.J. on this issue for the following reasons. Despite A.R.J. being easily confused in her evidence with respect to dates and details on many issues, with respect to the sexual assault itself she was entirely consistent and remained unshaken during a forceful cross-examination. Her evidence was clear and convincing on the specific details including the penetration, choking, and loss of consciousness. She readily acknowledged that she had likely consumed marijuana but that she still had a clear memory of the assault.

95She acknowledged not calling the police or disclosing the sexual assault at the time. She also acknowledged that after separation she sent a text to C.B.Z. stating that she missed him. Counsel for C.B.Z. argued that A.R.J.’s conduct after the alleged incident including her failure to immediately disclose the sexual assault and the fact that she subsequently sent him this text, negatively impacts her credibility and suggests she was not sexually assaulted or fearful of him as she claimed.

96Her failure to disclose the sexual assault until following separation does not, on its own, undermine her credibility. To conclude as C.B.Z.’s counsel suggests would be an impermissible reliance on a myth or stereotype, disguised as common sense, about how a sexual assault complainant should act.

97The Ontario Court of Appeal stated the following in R. v. Lacombe, 2019 ONCA 938 at para. 31, 41, 42:

31The Supreme Court has repeatedly held that myths and stereotypes about sexual assault victims have no place in a rational and just system of law. Relying on myths and stereotypes to assess the credibility of complainants jeopardizes the court's truth-finding function: R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439, at para. 2. As Lamer C.J.C. explained in R. v. Osolin, [1993] 4 S.C.R. 595, at pp. 624-625:

Historically, a host of factors were deemed relevant to the credibility of complainants in sexual assault trials that did not bear on the credibility of witnesses in any other trial and which functioned to the prejudice of victims of sexual assault. In Seaboyer, supra, I discussed at length the hurdles that complainants faced in sexual assault trials due to these unfounded presumptions. … These myths suggest that women by their behaviour or appearance may be responsible for the occurrence of sexual assault. …They suggest that the presence of certain emotional reactions and immediate reporting of the assault, despite all of the barriers that might discourage such reports, lend credibility to the assault report, whereas the opposite reactions lead to the conclusion that the complainant must be fabricating the event. Furthermore, they are built on the suggestion that women, out of spite, fickleness or fantasy and despite the obvious trauma for victims in many, if not most, sexual assault trials, are inclined to lie about sexual assault.

41The myth that a sexual assault complainant is less credible if she does not immediately complain is one of the “more notorious examples of the speculation that in the past has passed for truth in this difficult area of human behaviour and the law”: R. v. Mills, [1999] 3 S.C.R. 668, at p. 741, per McLachlin and Iacobucci JJ. It is unacceptable to rely, as the trial judge did here, on the stereotypical view that victims of sexual aggression are likely to immediately report the acts, and conversely, to conclude that the lack of immediate reporting reflects either absence of assaultive or non-consensual behaviour. See also: R. v. D. (D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 63; R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 136.

42Delayed reporting, standing alone, does not assist in evaluating whether an account alleging a consensual encounter is true or raises a reasonable doubt.

98The Alberta Court of Appeal in R v A.R.D., 2017 ABCA 237 stated the following paragraphs in para. 42 and 50:

42Second, it has long been recognized that there is “no inviolable rule on how people who are the victims of trauma like a sexual assault will behave”: R v D(D) at para 65. Just like the failure to make a timely complaint, a failure to demonstrate avoidant behaviour or a change in behaviour “must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse” [emphasis in original]: R v D(D) at para 63.

50The Supreme Court of Canada, and this Court, have held that relying on myths and stereotypes in assessing the credibility of sexual assault complainants invokes impermissible reasoning that is often, if not always, an error of law. This Court recently said in R. v. A.R.D., 2015 ABCA 149, at para 33:

No inference should be drawn regarding a complainant’s credibility that is based on assumptions about how a victim of sexual assault is supposed to react to the assault. The Supreme Court of Canada has made clear that sexual assault cases should be decided “without resort to folk tales about how abuse victims are expected by people who have never suffered abuse to react to the trauma”: R v Shearing, 2002 SCC 58 at para 121, [2002] 3 SCR 33. There is no inviolable rule on how victims of sexual assault will behave: R v D(D), 2000 SCC 43, 200 SCC 43 at para [65], [2000] 2 SCR 275. It cannot be assumed that sexual assault victims will react to abuse in any objectively identifiable way. Findings of credibility should not be affected by the timing of disclosure alone – that is, affected by a comparison between a complainant’s disclosure and the disclosure of a hypothetical ‘objectively reasonable’ victim.

99I am mindful that special consideration must be given to the testimony of witnesses who are parties to proceedings and that it is important to consider the motive that witnesses may have to fabricate evidence. R. v. J.H., [2005] O.J. No.39 (OCA) [at paras.] 51-56).

100I am also mindful that while it is possible to rely upon the demeanour of the witness, including their sincerity and use of language, that it should be done with caution (R. v. Mah, 2002 NSCA 99 [at paras.] 70-75).

101As A.R.J. acknowledged, there was a time when she and C.B.Z. had a good relationship. It was also clear that there was significant conflict at times. Relationships are complicated. These states of being can coexist within a relationship with parties vacillating between the two. It was clear that the level of conflict escalated over time.

102Separations can be equally complicated, particularly when children are involved. The parties met in high school and started living together as teenagers. Despite their young age and lack of maturity, they had a relatively long relationship, and likely the most significant relationship each has had.

103The text she sent and the timing of her disclosure immediately following separation, is evidence that may support the conclusion she had a motive to fabricate. However, I do not find that this was the case. Given the dynamics of the parties’ relationship, when the entirety of the evidence and circumstances are considered, I accept A.R.J.’s evidence regarding the sexual assault.

104Overall, I find that the level of parental conflict was significant and escalating, that it included physicality by both parties at times, and that the high level of conflict was the responsibility of both parties. I also accept that A.R.J. was sexually assaulted on one occasion by C.B.Z. in early 2023 when Z.D. was conceived.

Parenting Time and Decision-Making

105While the parties consented to a shared parenting arrangement in October 2024, they agree that it will no longer be workable when A.Z. starts school in September 2026. They reside in different jurisdictions.

106For the following reasons the best interests of the children support a joint decision-making order with A.R.J. making final decisions concerning health and education, with the children residing in her primary care with liberal parenting time with C.B.Z., including an equal sharing of holidays.

107Any order with respect to decision-making and parenting time is made solely on the basis of the best interests of the children, with reference to the best interests factors in the CLRA viewed from the children’s perspective and considering the totality of the circumstances. Family violence is a mandatory and critical consideration in the best interests analysis.

108There were significant concerns with both parties.

109They had an unstable and conflictual relationship which resulted in physical aggression by both parties at times, including on the day of separation. The parties exposed A.Z. to repeated domestic conflict.

110A.R.J. was a victim of C.B.Z. of one instance of nonconsensual intercourse with choking, causing temporary loss of breathing and consciousness. This occurred when Z.D. was conceived.

111During the relationship both parties used marijuana irresponsibly and excessively while in a caregiving role.

112The state of the home when the parties lived on their own was a recurring problem. They were not able to maintain a hygienic and safe home environment. However, both parties appear to have matured and stabilized their lives since separation, particularly now that they are residing with their primary supports.

113Both parties showed limited insight into their own issues and contribution to the level of conflict, and the risk it posed to A.Z. These concerns led the court to take the unusual step of ordering the Oxford CAS worker to be present in court early in this proceeding and, as noted in the endorsement of October 1, 2024, to encourage the CAS to commence a Protection Application. Unfortunately, this was not done at the time.

114Oxford CAS verified concerns related to adult conflict and limited caregiver skills and capacity with respect to both parents. It recommended they both engage services for their mental health and parenting programming.

115As neither party drives, they each remain dependent on others for transportation for appointments and activities for the children, and for parenting time exchanges.

116Each party’s plan for the children has its merits. Neither party has a criminal record or outstanding criminal charges. The Oxford CAS worker noted in October 2024, when the parties were still together, that they were both cooperative with the CAS and community services.

117Both parties receive significant support. C.B.Z. continues to receive support from his family, particularly his mother. Unfortunately, both he and his mother work nights on the weekends. C.B.Z. indicated his adult siblings or girlfriend assist with childcare during those times, and that he is looking for other work.

118A.R.J. is in a stable relationship with D.O., and he and his mother provide support to her and the children. Both D.O. and D.A. presented as genuinely caring and committed to A.R.J. and the children. Although A.R.J.’s parents see the children regularly, it was evident her relationship with her parents has been strained, and they do not provide significant ongoing support. Her father acknowledged that they had a rocky relationship in the past. A.R.J.’s partner and his family represent her primary source of support.

119Both parties were able to arrange and attend various appointments for the children. A.Z.’s medical records show that both parents at times were involved in attending for appointments with the family doctor.

120Both parties attended the intake for A.Z.’s speech therapy through the Woodstock Hospital, but C.B.Z. was the only party to ensure her regular attendance. A.R.J. acknowledged that she was not able to arrange transportation during the week to take A.Z. from Acton to Woodstock for speech therapy. A.R.J. investigated speech therapists in Acton, and found one on a city bus route close to her home which would permit her to ensure A.Z. would attend. She has applied at the clinic and is waiting to see if A.Z. is accepted.

121C.B.Z. ensured that A.Z. attended pediatrician appointments and an audiologist, although A.R.J. was present by phone for the audiologist and both parties were present when A.Z. had a brain scan. C.B.Z. has sought out school registration information for A.Z. in Oxford County.

122A.R.J. arranged for an optometrist for A.Z. and for both children to see a dentist in Acton. She also arranged for a family doctor in Acton for herself and the children. Since moving to Acton, A.R.J. has arranged for swimming lessons for the children on Saturday mornings and has attended Mackenzie Bennett Public School which is a short walk from her home and obtained the information she needs for registration for A.Z. in the fall.

123While neither party provided primary care to Z.D. until after separation, I accept that both parties have a loving bond with both children. The shared parenting schedule in place since October 2024 has supported these bonds. With the significant support both parties receive they are each capable of providing primary care for the children. However, I would be concerned with either parents’ ability to safely parent without this support.

124After CAS became involved, the parties continued to struggle when they lived on their own to maintain the state of the home and provide for A.Z.’s basic needs. Community service providers reported concerns with both parents’ mental health, capacity, and the level of conflict in their relationship.

125The police records establish that the conflict has continued to some extent since separation, as the parties have difficulty problem-solving even simple issues. It was agreed that A.Z. does not transition well between the parents’ homes. Given the level of conflict and dysfunction this is not surprising. The parties have a responsibility to shield the children from parental conflict. While the situation appears to have improved somewhat since separation, both parties need to work harder in this regard.

126Since separation the parties continue to make allegations against the other to the CAS and the police in a manner that appears to be a back-and-forth, or “tit-for-tat”. Neither party takes responsibility for the difficulties and the ongoing lack of effective communication and cooperation.

127Ms. Ernst from HCPS noted they had not verified any significant concerns since her involvement, but HCPS was unable to close its file as the parties continued to make allegations, which had increased in the lead up to trial. I agree with her assessment that both parents remained, “highly invested” in the conflict and as a result continue to see issues with the other. I also agree with her that both parents would benefit from co-parenting programming.

128I am also concerned with both parties’ willingness to support the others relationship with the children. Their lack of respect and level of distrust was evident during the trial. Both made allegations that the other was not always following the order. I find that the level of distrust and lack of effective communication has contributed to the limited ability to coordinate and problem solve.

129In terms of the history of care, prior to separation I accept that both were involved to some extent in A.Z.’s care and that Z.D. lived with S.D. Prior to separation the parties relied heavily on S.D. Since October 2024 the parties have had a shared parenting arrangement for both children.

130The children are too young to provide views and preferences, and there are no cultural, linguistic, or religious considerations other than that A.R.J. is seeking a small number of cultural days per year so she may engage with the children as a member of the lower Cayuga First Nation. This request was not imposed by C.B.Z.

131A.R.J. does not work and is available for the children at all times. C.B.Z. works nights on the weekends and arranges for childcare with his adult siblings or his girlfriend.

132Oxford CAS verified concerns of limited caregiver skills for both parents. However, prior to the parties’ separation, Oxford CAS worker Kimberly Samaroo observed that A.R.J. appeared to be a “good advocate for herself and A.Z.”.

133When all these factors are considered, both parents with support are able to provide a reasonable plan for the children’s primary residence. Both parties also acknowledged that A.Z. will be in school in the fall of 2026 and that the shared parenting arrangement in place since October 2024 will no longer be workable.

134Both parties contributed to the significant level of parental conflict which amounts to family violence under the CLRA.

135However, the sexual assault committed by C.B.Z. is a critical and determining factor in the best interests analysis. While only a single incident which occurred in early 2023, the sexual assault was nonetheless at the serious end of the spectrum of family violence. It involved nonconsensual penetration, choking, and loss of consciousness. C.B.Z. does not acknowledge the assault and has taken no remedial programming.

136When all the factors outlined herein are considered, particularly the sexual assault, the best interests of the children support them residing in the primary care of A.R.J. They will spend liberal and generous parenting time with C.B.Z. which shall include alternate weekends and a sharing of holidays and a week about arrangement during the school summer holidays.

137With respect to decision-making, I am mindful that there are a number of factors which militate against a joint decision-making order including:

1. The level of conflict and mistrust is high. They have limited history of positive communication and problem-solving.

2. Both parties agree there is little to no current communication. Both parties have contributed to the level of distrust and the lack of effective communication.

3. Both continue to make unverified allegations to the CAS.

4. The children are young and the need for effective communication is higher.

5. The family violence including the adult conflict and the serious sexual assault.

138The current circumstances between the parties are not likely to change. A joint decision-making order that included an expectation of cooperation and communication would inevitably lead to further conflict and likely delay important decisions for the children.

139However, I am of the view that these are outweighed by the following considerations which support a joint decision-making order, particularly if it is allocated in a way to avoid the need for the parties to agree on important decisions.

140The joint decision-making shall be exercised with A.R.J. making the final decisions and arrangements for education and medical care for the children and include an obligation that she ensure C.B.Z. is aware of important decisions and all third parties involved in the children’s health, education, and welfare.

141I am not satisfied that either party can be entrusted to exercise sole decision-making in a manner that will not undermine or exclude the other parent. With respect to A.R.J., despite the CAS not verifying concerns in the summer of 2024, she nonetheless withheld the children from C.B.Z. for several months. This was not child focused. Neither was it child focused during this period for C.B.Z. to choose not to see the children at all rather than travel to Hamilton for supervised access by HCPS, even as a temporary measure, pending the matter returning to court.

142Both parties acknowledged not always sharing important information, and the text messages filed by C.B.Z. suggest his communication is designed to provoke at times rather than to share information or work through an issue.

143To their credit, the parties did consent to a shared parenting arrangement in October 2024 which has continued largely uninterrupted despite the ongoing allegations.

144To be clear, this joint decision-making order is not made with the expectation that the parties will effectively communicate and meaningfully discuss important issues. Given the level of conflict and the family violence, particularly the sexual assault, this would be neither appropriate nor feasible. Rather, a joint decision-making order which specifies that A.R.J. is to make final decisions and arrangements with respect to health and education will serve the children’s best interests for the following reasons:

1. It will preserve the balance of power between the parties.

2. The allocation of decision-making will not require cooperative parenting decisions to be made.

3. It limits the likelihood that decision-making will be used in a manner to undermine C.B.Z.’s relationship with the children, and reflects the court’s concern that C.B.Z. would also likely undermine A.R.J.’s relationship with the children if he were to have sole decision-making authority.

4. It reflects that both parents have made gains since the separation and are capable, with their supports, of providing primary care. Both have been involved in arranging and attending appointments for the children.

5. It also reflects the court’s concern with both parties’ ability to provide appropriate care without the significant support they each receive.

6. Most importantly, it will add an additional layer and degree of safety and oversight in a situation where both parties have limitations in their parenting abilities.

7. The joint decision-making order will ensure C.B.Z.’s access to any third parties involved in the health, education, and welfare of the children.

145Overall, I find that this is one of the exceptional cases where a joint decision-making order is appropriate and necessary despite the conflict, family violence, and lack of cooperation. It will serve the best interests of the children if it allocates decision-making in a manner to avoid the need for the parties to cooperate in the making of decisions concerning the children’s health and education. At the same time, it will preserve the balance of power between the parties and provide an additional level of oversight where both parents appear to have limitations in their parenting capacity.

146Both parties have strengths and flaws. Both need considerable support. While they both presented poorly in many ways, they both clearly love their children and appear to have begun to make much-needed improvements since separation.

147Ultimately, the court must determine what allocation of decision-making and parenting time is in the best interest of the children. The issue is not to reward or punish either parent but to put an arrangement in place that best serves the interests of the children in a complex and challenging set of circumstances.

148The best interests of the children support an order for joint decision-making with A.R.J. having the authority to make decisions and arrangements on issues of health and education. She shall be required to provide timely and updated information to C.B.Z. in advance of important decisions.

149The parties shall continue to equally share in the transportation.

Police Assistance

150C.B.Z. seeks an order for police assistance. Both parties made allegations that the other was not always abiding by the temporary order, and A.R.J. withheld the children from C.B.Z. for several months in 2024 prior to the temporary order.

151I am not satisfied a police assistance clause is appropriate at this time for the following reasons. It is an order of last resort and the present circumstances do not warrant it.

152The parties consented to a shared parenting arrangement in October 2024. Despite each party’s allegations the shared arrangement as continued largely uninterrupted. The CAS has not verified any recent concerns, including that either party was withholding the children. Neither party was required to bring a motion for enforcement of parenting time over the last 1 ½ years since the temporary order was made.

153There is no present or existing issue requiring police enforcement, and police enforcement is not meant to provide an on-demand enforcement tool for potential problems which may arise in the future.

154Further, there is no evidence that the police were served with notice of C.B.Z.’s claim for police assistance. There is no specific requirement under section 36(4) of the CLRA to serve notice of a claim on the police. However, it is a best practice that the police be served with notice of a claim, particularly in circumstances where, like here, a party is seeking a broad, ongoing, and multiuse enforcement order.

155For these reasons, the request for a police assistance clause is dismissed.

Child Support

156A.R.J. is 25 years old and has no work history. Her income is derived from ODSP which she has received since high school, and Child Tax Benefits. A.R.J. only provided her 2021-2023 Notices of Assessment and ODSP receipts for 2024. The Notice of Assessment for 2021 noted total income of $12,895; for 2022 total income of $22,546; and for 2023 showed no income.

157In her evidence it became clear that A.R.J. had only a very simple understanding of her finances. She was easily confused by the numbers and not able to answer basic questions including the amount she received for ODSP or Child Tax Benefit. Despite her lack of fulsome disclosure and the lack of clarity in her oral evidence, I accept her position that her income is derived from ODSP at a rate of $1751 per month or a total of $21,012 annually. The ODSP receipts that were provided confirmed this amount and C.B.Z. did not allege that she had income for support purposes from any other source. D.N. confirmed that she received rent funds from A.R.J. directly from ODSP.

158C.B.Z. is 24 years old and has minimal work history. His limited employment history has been based in security. He works part-time as a bouncer at a bar in downtown Woodstock. His Notice of Assessment for 2021 had total income of $9647; for 2022 total income of $315; for 2023 total income of $34,463 which consisted primarily of Social Assistance payments; and for 2024 total income of $15,895 from employment income.

159His evidence about his financial circumstances, including both his income and expenses, was also less than clear. His financial statement sworn August 21, 2025 noted income of $460 per month from his part-time work as a bouncer and from employment as a security guard with Protection Security Investigators (PSI). He testified he left employment with PSI in October 2025. He failed to provide his ROE or a final pay stub or confirmation of total income for 2025.

160C.B.Z. testified that he presently only works as a bouncer part-time but is looking for other work in security. He obtained his security license in 2020. He testified that he is presently earning $610 per month from his work. However, the basis for this calculation was unclear and the total he offered was inconsistent with other evidence. He provided no recent pay stubs from Nico’s bar, and the paystub he filed with his most recent financial statement is from August 15, 2025 from another restaurant/bar establishment he no longer works for. He failed to provide the ROE from this employment.

161His evidence and that of his former boss, Joe Perry, was that he works Friday and Saturday nights and some Thursdays from approximately 9 PM to 3 AM at Nico’s bar, and his earlier financial statement indicated that he earned $25 an hour plus some tips. Even if he works alternate Thursdays this would amount to income of $1500 per month without including any tips. If $250 per month is added for tips (or $25 per night if he works 10 evenings per month), his estimated present income would be $1750 per month or $21,000 per year.

162Both parties sought to impute income on the other for support purposes.

163Section 19 of the Child Support Guidelines provides that the court may impute to a spouse “such amount of income … as it considers appropriate” and provides a non-exhaustive list of such circumstances. The relevant portions of s. 19 read as follows:

19.(1) Imputing Income – The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the spouse;

164Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. Clause 19(1)(a) of the guidelines is perceived as being a test of reasonableness. Drygala v. Pauli, [2002] O.J. No. 3731(Ont. CA).

165The Ontario Court of Appeal in Drygala v. Pauli, [2002] O.J. No. 3731(Ont. CA) and more recently in Kohli v. Thom, 2025 ONCA 200, set out the following three questions which should be answered by a court in considering a request to impute income:

1. Is the party intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational, the needs of the child or reasonable health needs?

3. If not, what income is appropriately imputed?

166The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.

167The first element of the test requires a consideration of whether the spouse is intentionally unemployed or under-employed. The onus is on the person requesting an imputation of income to establish an evidentiary basis for such a finding. Homsi v. Zaya, 2009 ONCA 322

168However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.

169Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719. If underemployment is established, the onus shifts to the payor to show one of the exceptions of reasonableness. Rilli v. Rilli, 2006 CarswellOnt 6335 SCJ.

170Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them. Szitas v. Szitas, 2012 ONSC 1548; Woofenden v. Woofenden, 2018 ONSC 4583

171Cook v. Burton, [2005] O.J. No. 190 (SCJ) and Stoangi v. Petersen, [2006] O.J. No. 2902 (SCJ) set out that cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his/her reasonable health needs justify his/her decision not to work. In Davidson v. Patten, 2021 ONCJ 437, the court set out that a party resisting a claim for imputation of their income based on medical reasons should provide a medical report setting out diagnosis, prognosis, treatment plan, compliance with the treatment plan; and specific and detailed information connecting the medical condition to the ability to work.

172However, the failure to provide such evidence is not an absolute bar to a party resisting a claim for imputation of their income based on medical reasons. If the court believes the party’s evidence about their medical impairments, that can be a sufficient basis not to impute income. There is a small segment of litigants who have legitimate medical issues, but who are too overwhelmed by the process to obtain the necessary medical evidence to corroborate it. Their medical issues are often the very reason they are overwhelmed and cannot produce this evidence. When the court finds this is happening, it is left to assess the credibility and reliability of the party’s evidence. M.D. v. A.H., 2026 ONCJ 46.

173The receipt of ODSP or Workplace Safety and Insurance Board benefits is not sufficient proof of one’s inability to work for support purposes. Tyrrell v. Tyrrell, 2017 ONSC 6499 (SCJ). The court cannot take judicial notice of any eligibility requirements for ODSP. Nor can it delegate the important and complex determinations of employability and income earning capacity to unknown bureaucrats applying unknown evidence to unknown criteria. Abumatar v. Hamda, 2021 ONSC 2165; Bougataya v. Turkmen, 2023 ONCJ 341.

174Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. Filippetto v. Timpano, [2008] O.J. No. 417, (Ont. S.C.).

175I find that the first element in Drygala has been established by both parties’ failure to provide the required financial disclosure, and both parties failure to provide a clear financial picture of their circumstances.

176With respect to the second and third elements in the test, the fact that A.R.J. is on ODSP does not establish that she is unable to work for the purpose of support. She provided no medical basis to establish any inability to work. She provided no evidence that she was searching for work.

177C.B.Z. provided no basis to support why he was only working part-time. He has a security certificate and has a limited work history providing security. He stated he was looking for a job but provided no particulars of his job search efforts.

178The issue then is what income is appropriate to impute given the limited evidence that was elicited by both parties.

179The court in Lawson v. Lawson (Ont. C.A.) citing Dryagla, stated that Section 19 (1) (a) of the Guidelines is perceived as being a test of reasonableness. The court must have regard to the parent’s capacity to earn income in light of such factors as employment history, age, education, training, skills, health, available employment opportunities and the standard of living earned during the marriage. The court looks at the amount of income the payor could earn if he or she worked to capacity.

180This is a case, similar to M.D. v. A.H., 2026 ONCJ 46, where I find that the lack of medical or other similar evidence to support a diminished capacity to work is not an absolute bar to a party resisting an imputation of income. Both parties presented with very limited personal resources. As outlined above, I am of the view that neither party could adequately parent on their own without the significant support which C.B.Z. receives from his family and A.R.J. receives from her partner and family. The Oxford CAS evidence noted that the protection workers and community service providers involved raised repeated concerns for both parents’ mental health and capacity. These limitations also impact their ability to earn income. The parties provided limited evidence of any present supports in place for their mental health.

181Each party testified to a plan for better future employment. C.B.Z. wanted to achieve a steady full-time job providing security in an institution like the Woodstock General Hospital. A.R.J. hoped one day to take an online nursing course. There was no evidence that either party had taken any steps to achieve these goals. Given the limited personal resources and capacities of each party observed by service providers and which were evident during the trial, these may not be realistic expectations, at least not at present.

182It may be appropriate to revisit the issue in the future of whether additional income ought to be imputed. However, at this time the court will not impute income higher than the court has estimated as their present incomes given their work history and circumstances. The court will direct that the parties’ imputed incomes may be reviewed if required after June 1, 2028 without the need to establish a material change in circumstances.

183As a result, for the purposes of child support both parties’ incomes shall be imputed at $21,000 per year. This coincides with the current estimate of C.B.Z.’s income of $1750 per month or $21,000 per year (derived from estimated employment income and tips), and A.R.J.’s present income is $1751 per month or $21,012 per year (derived from ODSP). I note that A.R.J. has never earned employment income and C.B.Z. has never earned this much from employment income.

184The parties have maintained a shared parenting arrangement since the current order of October 29, 2024. The parties’ incomes have been the same and the table amounts would produce no set-off child support payable by either party.

185However, section 9 of the Child Support Guidelines also requires the court to consider other factors beyond the table amounts. These include a case specific analysis of the particular costs to the parties of the shared arrangement and the specific circumstances of the children.

186Little evidence and no argument were presented on these issues. Both parents reside with their primary supports, pay some level of rent, and receive significant assistance both financial and practical from those they live with. There was no evidence that either party incurred a disproportionate amount of costs as a result of the shared arrangement, or that either party was not able to provide for the children while in their care.

187For the purposes of section 9, the straight set-off calculation is appropriate which produces no child support payable by either party while the shared parenting arrangement remained in place.

188On the basis of the parenting order the court has made herein, there will no longer be a shared parenting arrangement and section 9 no longer applies.

189As such, starting April 1, 2026, C.B.Z. shall to pay A.R.J. child support of $278 per month for two children on an imputed income of $21,000. Based on their similar incomes, the parties shall equally share any section 7 expenses, net of any benefit or subsidy.

190The parties shall each provide annual disclosure by June 1 of each year and advise the other in writing and provide details of any change in their income or employment within 10 days of the change.

191Based on all the considerations outlined herein, there shall be a final order as follows:

1. The parties shall share joint decision-making with the respondent having final authority with respect to major decisions and arrangements concerning the children’s health and education.

2. The respondent shall provide notice to the applicant in writing, including contact information, for any third party involved in the health, education, and welfare of the children.

3. Both parties shall have unrestricted and direct access to any third parties involved in the health, education, and welfare of the children.

4. The respondent shall provide advance notice to the applicant of any major decisions affecting the children and consider any input from the applicant in writing in advance of any major decisions.

5. The children shall reside in the primary residence of the respondent and have liberal and generous parenting time with the applicant including the following:

a. The applicant shall have parenting time alternate weekends from Friday at 5 PM to Sunday at 5 PM, extended to Thursday at 5 PM or Monday at 5 PM if there is a school PD day.

b. An equal sharing of the school summer holiday on a week about basis, or on another schedule as agreed between the parties.

c. The parties shall equally share and alternate holidays as agreed.

d. The respondent shall be entitled to three additional cultural days per year. The respondent shall provide 30 days notice of these days and make up any parenting time missed by the applicant as a result.

e. Any other times as agreed between the parties.

6. The parties shall share transportation responsibilities for the children as agreed.

7. The parties shall keep the other informed and up-to-date in a timely manner of any change in their residential address, phone number, email address, or other contact information.

8. The parties shall not expose the children to adult conflict or negative comments about the other party or their families.

9. Both parties to forthwith independently engage in and successfully complete co-parenting counselling as recommended by HCPS.

10. Commencing April 1, 2026 and monthly thereafter the applicant shall pay the respondent child support for two children in the amount of $278 per month on an imputed annual income of $21,000.

11. The parties shall equally share any section 7 expenses agreed to in advance, net of any benefit or subsidy, based on an imputed annual income for each party of $21,000.

12. The parties shall disclose by June 1 of each year their Income Tax Return and Notice of Assessment, and advise the other in writing and provide details of any change in their income or employment within 10 days of any change.

13. Without limiting any other right of review, the parties’ imputed incomes may be reviewed after June 1, 2028 without the need to establish a material change in circumstances.

14. The remaining claims are dismissed.

The parties are strongly encouraged to resolve the issue of costs in this matter, if any. However, if either party seeks an order for costs they shall serve and file written submissions, not to exceed three pages, which shall attach any offers to settle and a Bill of Costs by April 8, 2026 with the responding party serving and filing written submissions, not to exceed three pages, which shall attach any offers to settle and a Bill of Costs by April 22, 2026. If no submissions are received seeking costs by the deadline there shall be no order as to costs.

Released: March 23, 2026

Signed: “Justice S. E. J. Paull”