Court File and Parties

Court File No.: Toronto D90923/16 Date: 2018-11-09 Ontario Court of Justice

Between:

T. P., Applicant (Mother)

— and —

K. L. S., Respondent (Father)

Before: Justice Robert J. Spence

Heard on: October 29-31 and November 1, 2018

Reasons for Judgment released on: November 9, 2018

Counsel:

• Mr. Mark DeGroot, for the Applicant
• Mr. Ben Mignardi, for the Respondent

R. J. SPENCE J.:

1: Introduction

[1] This is an Application brought by the mother which involves the parties' 4 year-old child, T. In that Application, the mother sought an order for:

(1) sole custody;

(2) no access to the father;

(3) child support, including both table support as well as section 7 support in accordance with the Child Support Guidelines ("Guidelines");

(4) a restraining order against the father; and

(5) other incidents of custody, including the right to obtain the child's passport and other government-related documents, and the right to travel with the child, all without the father's consent.

[2] In the father's Answer/Claim, he sought access only.

[3] On July 18, 2016, the Justice Debra Paulseth made a final sole custody order in favour of the mother, on the consent of the parties.

[4] On November 18, 2016, Justice Paulseth made a final restraining order against the father, prohibiting any direct or indirect contact by the father with the mother and prohibiting the father from coming within 500 metres of any place where the father knows the mother to be.

[5] The issues for this trial are:

(1) Father's access to the child;

(2) The quantification of child support payable by the father to the mother; and

(3) The other incidents of custody as noted in subparagraph 1(5) above.

2: Background and Litigation History

[6] The parties began a dating relationship in or around 2005. Very soon afterwards they found an apartment and began to live together.

[7] In the same year the father was charged with second degree murder and he was incarcerated. He was released on bail in or about November 2006 but was required to live with his surety, his uncle Taso.

[8] The parties saw each other, off and on when the mother would visit with the father on the weekends.

[9] His murder trial began in March 2009 and ended in April 2009. During that period of time he remained in custody. The trial resulted in an acquittal.

[10] Following the acquittal, the parties resumed living together, and they were in an on-again, off-again relationship.

[11] In 2012, as a result of the Crown's appeal, the acquittal was overturned and a new trial was ordered.

[12] The second trial began in or about May 2013. This trial resulted in a hung jury.

[13] The third trial began in June 2013 and was completed the same month. The father was acquitted.

[14] It was around that time that the mother became pregnant with T., who was born […], 2014.

[15] The parties disagree about how much time the father spent at the mother's apartment following the birth of the child, and they disagree about how involved the father was in T.'s life. However, for the purpose of this judgment I do not need to resolve that dispute, other than to note that the parties were not living together on a fulltime basis, and that mother was the child's primary caregiver.

[16] In around the last week of February 2016 the parties and T. travelled together to Cuba for a vacation.

[17] On February 29th, following an evening stage show at the resort, the parties returned to their room. They became embroiled in a heated argument. The mother accused the father of "hitting" on a young woman who was present at the stage show. The father denied that he had been doing so.

[18] It was then that an incident occurred which became very much the focus of this trial.

[19] The mother claims that the father viciously attacked her, so viciously in fact, that she was convinced he was trying to kill her.

[20] The father claims that the mother attacked him while he was lying on the bed with T. And in his attempt to disengage with the mother, she fell violently off the bed, and onto her side.

[21] What is not disputed is the extent of the injuries which the mother suffered as a result of this incident.

[22] Nor is it disputed that T. was present when this incident occurred.

[23] Resort security was called and came to the room. Security was told two different versions of what happened. However, it does appear that security persuaded the father to leave the room.

[24] He did so, leaving the mother behind, and leaving T. in mother's sole care.

[25] Early the next morning, on March 1st, the mother attended at a medical clinic. The police also attended and the mother expressed her wish to have the father criminally charged. The police prepared the necessary documentation. However, they advised the mother that she might have to remain in Cuba, or return to Cuba if there was to be a criminal trial.

[26] The mother and T. returned to Canada the next day, March 2nd. The mother then went straight to Toronto East General Hospital.

[27] The hospital diagnosed 7 facial fractures which required the mother to undergo facial and cranial reconstruction surgery several days later at Sunnybrook Hospital.

[28] The surgery involved placing three metal plates in her face as well as four screws holding up her eye as she had extensive damage to the orbit of her right eye.

[29] In addition, her right shoulder was fractured. She was unable to use her right arm for a number of months following the incident, and she was required to attend physiotherapy to regain the use of her arm.

[30] As well, she suffered a broken right shoulder; the roof of her mouth was broken; her teeth were loose; and she had numerous cuts and bruises on various parts of her body.

[31] For about two months following the surgery she had metal wires holding her jaw together and she was unable to eat solid foods.

[32] Currently, her unchallenged evidence is that she still does not have feeling in a large part of the right side of her face.

[33] On or about March 7, 2016, following the mother's return to Canada, she laid a criminal complaint against the father with the Toronto Police Services.

[34] When the father returned to Canada he was served with a summons by the Crown Attorney who sought to have the father enter into a Peace Bond. Without making any admissions of guilt, the father did enter into a section 810 Peace Bond on or about January 16, 2017.

[35] Following the incident, the mother began counselling with her psychologist, Dr. Letourneau, on July 13, 2016.

[36] The Office of the Children's Lawyer ("OCL") conducted a full investigation at the request of the Court and issued its report in July 2018. As part of its investigation, the OCL obtained a letter from Dr. Letourneau, dated August 10, 2016. In that letter, Dr. Letourneau stated, in part:

I first met with Ms. P. on July 13, 2016. I diagnosed her with Posttraumatic Stress Disorder (PTSD) and a Major Depressive Disorder. PTSD is a diagnosis that can only occur about a traumatic event, that is to say following exposure to actual or threaten death, serious injury or sexual violence. The diagnosis of PTSD was offered based on police and medical reports that detail Ms. P.'s report of being attacked by her domestic partner while vacationing in Cuba on February 29, 2016. The police report documents her account of being strangled to unconsciousness, thrown into the wall, and having her head struck against the floor. By Ms. P.'s own account, her domestic partner was never violent toward her before this instance. Medical reporting that Ms. P. provided documents multiple fractures (with surgical repair) and a fracture of the right humeral neck.

[37] I will return to the OCL report later in these reasons. However, I note at this point that the father chose not to require the OCL clinician to testify at trial and to be cross-examined on her findings in that report.

[38] The father says that he attended the Cuban prosecutor's office on May 12, 2016 at which time he was informed that no criminal charges would be laid against him. His passport was returned to him and he left Cuba and returned to Canada on or about May 19, 2016.

[39] On May 27, 2016, the mother issued her Application seeking the relief referred to earlier in these reasons.

[40] The father promptly delivered his Answer/Claim.

[41] On May 27, 2016, Justice Carole Curtis heard an ex parte motion brought by mother. In that motion Justice Curtis granted temporary sole custody to mother as well as a no-access order to father.

[42] Justice Curtis also granted a temporary restraining order against the father, prohibiting him from having any contact with the mother and the child. Justice Curtis adjourned the matter to June 14, 2016.

[43] On June 14, 2016, the father did appear in court. However, he had not filed any material in response to the mother's motion. Justice Paulseth, as the case management judge, granted the father an extension of time to file his responding material, and she adjourned the matter to July 18, 2016.

[44] On July 18th, the parties again attended court before Justice Paulseth. Once again the father had not filed any material addressing the issue of his access to T.

[45] However, on consent, Justice Paulseth ordered temporary without prejudice child support to be paid by father to mother in the amount of $487 per month, based on father's stated income of $53,833 for 2015. She also made a final custody order in favour of mother, on consent. Justice Paulseth adjourned the matter to September 22, 2016.

[46] On September 22, 2016, the parties again appeared in court. At that time Justice Paulseth heard a contested motion where the father was seeking supervised access. Based on the evidence presented at that motion, Justice Paulseth found it to be contrary to T.'s best interest for father to have any access. She dismissed the father's motion.

[47] The matter was adjourned to November 18, 2016 for the production of certain police records as well as records from the Children's Aid Society of Toronto ("CAS").

[48] On November 18th, the parties appeared in court, at which time Justice Paulseth made a final restraining order against the father, on consent. The only exceptions to the no contact order were through or in the presence of counsel or through or in the presence of counsel or a clinical investigator from the OCL.

[49] At the court appearance on May 4, 2017, the father sought and obtained a downward adjustment to his child support obligation by producing his recently-filed 2016 income tax return showing his income for that year to be $36,185. Justice Paulseth reduced his temporary child support to $334 per month.

[50] It appears that on the same date, neither the mother nor her then-counsel appeared in court and Justice Paulseth made a costs order against the mother in the amount of $500.

[51] The father continued to seek some access. On July 5, 2017 the parties consented to a temporary order for supervised access to the father at Access for Parents and Children in Ontario ("APCO"), with the APCO costs to be borne by the father.

[52] At the same court appearance, the parties consented to an order for direct access by the father to the child's service providers – health, education and other professionals involved in the child's life.

[53] At the next court appearance on September 19, 2017, Justice Paulseth noted that there had been three access visits at APCO, and that those visits had not gone well, as T. had demonstrated "extreme fear" at those visits with her father.

[54] At the court appearance on November 14, 2017, Justice Paulseth ordered the appointment of the OCL, for the purpose of conducting an investigation and reporting back to the court.

[55] Over the next several scheduled case conferences, Justice Paulseth noted that the OCL had yet to report back to the court.

[56] On March 7, 2018, on consent of the parties, the final restraining order was amended to permit the father to have contact for the purpose of exercising access or supervised access pursuant to a court order or to attend family court.

[57] On March 20, 2018 Justice Paulseth noted that Ms. Connerty had been appointed as the OCL investigator. The court adjourned the matter to monitor the progress of access, if any, at APCO.

[58] By June, it was apparent to the court that the parenting issue was unlikely to settle and, accordingly, Justice Paulseth ordered the parties to attend court on July 20, 2018 with a Trial Plan.

[59] The matter was subsequently placed before Justice Stanley Sherr as the Assignment Court judge, who then assigned the trial to me, with a trial management conference to take place on September 25, 2018.

[60] On that day, the parties consented to filing their respective evidence in chief by affidavit, as well as agreeing to certain timelines for in-court cross-examinations. The father advised that he would be calling the OCL investigator to cross-examine her on her report. However, the father ultimately chose to allow the OCL report to be admitted into evidence at the trial without the need to summons the OCL clinician to testify at trial and to be cross-examined.

3: The Access Issue

3.1 The Legislation

[61] Section 24 of the Children's Law Reform Act ("CLRA") provides:

Merits of application for custody or access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.

Past conduct

(3) A person's past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2).

Violence and abuse

(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person's household; or

(d) any child. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2, 3).

3.2: The Cuba Incident

[62] The mother relies heavily on the Violence and Abuse provisions set out in subsection 24(4) of the CLRA.

[63] In order to properly address this issue the court will make certain findings with respect to what happened in Cuba on the night of February 29, 2016 ("Cuba incident").

[64] I return to the competing allegations of the parents. The mother states that the father became enraged with her, accusing her of "ruining his night" when she called him out for flirting with another woman. In her evidence in chief, mother states:

He began to thump around the room and was throwing a fit. He even slammed the screen door a few times.

Eventually I wanted the father to leave the room because he was too loud and T. was asleep and I did not want her to be frightened. I tried to grab his arm and usher him to the door. At this point, he slammed my face against the wall and threw me on the ground and strangled me. The last thing I remember before passing out was T. waking up and screaming loudly.

When I regained consciousness, the father was on the bed and T. was on the edge of the bed. I tried to grab T. to prevent the father from getting to her. Before I could, the father slammed me on the wall again and pushed me to the ground. In the process, I recall my head hitting the edge of a table very hard. He proceeded to sit on my body and repeatedly slammed my face against the floor tiles. I distinctly recall the father saying "You see what you made me do? Now I have to kill you". Throughout this whole time, T. was screaming and crying very loudly. I thought he was going to kill me".

[65] The father has a different version of what happened. In his evidence in chief he states:

By the time we got to our building, the argument between me and the applicant became heated. She continued to accuse me of hitting on [the woman] and I kept denying it. The last thing I recall at that time was that the applicant slapped me in the fact [sic] and then stormed off.

I then took T. and made our way to the hotel room. I put T. to bed. I too went to bed. T. had been sleeping since the end of the show and continued to be asleep. In order to avoid any confrontation, I decided to go to sleep. I had hoped that the applicant would do the same when she returned to the room. I left the hotel door slightly ajar so that the applicant could enter the room because she had no room key.

The next thing I remember, I was abruptly awoken from a deep sleep while in bed. I was startled when I awoke with the applicant on top of me and she was hitting me with one arm while holding my tee shirt with the other arm. I recall she struck me violently 3 or 4 times. T. was lying next to me at this time.

In order to avoid being struck again and again, and in order to avoid any contact between the applicant and T. I turned my body to the right, which caused my back to be towards the applicant. The applicant was still on top of me at this time. Then I threw my weight backwards, which caused the applicant to separate from me and then fell onto the floor onto her right side. She fell on to the floor with a heavy impact.

I then immediately jumped to my feet and I went to the foot of the bed. I observed that the applicant had some blood coming from her nose.

[66] The mother was cross-examined on her version of the events. She said she could not recall how many times the father smashed her face, but it was "definitely more than once."

[67] She was asked why her locket was still around her neck following the attack if the father had tried to strangle her. She stated because the father did not pull it off her neck.

[68] She acknowledged that prior to this incident the father had never been violent towards her.

[69] The father was also cross-examined on his version of the events. He stated that after he pushed her backwards off him, she was screaming loudly and hysterically. It was then that security arrived. He said that she continued to attack him after the security arrived and it became necessary for the security to hold her back. T. was crying and was upset because of what was going on inside the room.

[70] The security guards urged him to pack his bags and leave the room. So he did that, leaving T. behind with the mother.

[71] Numerous colour photographs of the mother's injuries were filed as exhibits in the trial. These consisted of photographs the mother took of herself immediately following the incident and included photographs of blood on the floor of the hotel room, as well as blood on the wall of the room.

[72] In addition to these photographs, the Toronto Police Services took 12 colour photographs, when the mother attended before the police on March 7, 2016 to lay her criminal complaint. This was one week following the Cuba incident. All of those photographs were tendered as exhibits in this trial.

[73] The first photograph is a head and body picture of the mother depicting injuries and bruising to her face and to both of her eye orbits. It also depicts extensive bruising on the inside of her right arm, extending from her armpit down below her elbow.

[74] The second photograph is a close-up of mother's face depicting the very extensive bruising to her right eye orbit, as well as blood on the eyeball itself. It also depicts bruising to the right side of her face near the mouth and above her lip.

[75] The third and fourth photographs depict the same injuries, taken from different angles.

[76] The fifth photograph is a close-up of the mother's neck showing a line of bruising at the front of her neck, against a police ruler, which is lined up next to the neck. From that photograph and the ruler, the court estimates the length of the bruise at between 2 and 3 inches.

[77] The sixth photograph is a close-up of the neck bruising.

[78] The seventh photograph is a close-up of the red bruising underneath the mother's left eye.

[79] The eighth photograph is a close-up of the mother right arm, displaying the outside of her arm. The bruising is extensive, running from about her armpit to below her elbow. Based on the positioning of the police ruler, it appears the bruising is about 9-10 inches in length.

[80] The ninth photograph is a wider view of the bruising on the inside part of the mother's arm, which I referred to earlier.

[81] The tenth photograph is a close-up of that bruising displayed against a police ruler which would appear to display about 9-10 inches of bruising.

[82] The eleventh and twelfth photographs are close-ups of more bruising, although it is difficult to discern from those pictures whether the bruising is near the elbow or the knee, given the extreme close-up nature of those pictures.

[83] I have taken the time to discuss these photographs because I have concluded that the mother's version of the events is entirely consistent with the injuries depicted, whereas the father's version of the events is inconsistent with those injuries.

[84] Father's counsel submitted that there was no expert evidence tendered which might be able to prove that the injuries were more consistent with one version as opposed to the other version. Counsel argued that it is not open to the court, without such evidence, to come to a conclusion about credibility on this issue because of the lack of such expert evidence; and further, the court is not entitled to come to its own conclusions about the likely cause of those injuries.

[85] I disagree, for a number of reasons.

(1) There is no evidence before the court that the father suffered any injuries, and certainly no injuries which caused him to bleed. The photographs taken by the mother showed blood on the floor and blood on the wall. Therefore, this must have been the mother's blood. This is consistent with the mother's version of events that he slammed her face against the wall and repeatedly smashed her head/face against the floor.

(2) The photographs are inconsistent with the father's version that the mother injured herself when she "fell onto the floor with a heavy impact". The photographs revealing blood on the wall are inconsistent with father's version that mother injured herself while falling onto the floor against a table. In that eventuality there would have been blood on the floor, not higher up on the wall.

(3) The extensive bruising running along both the inside of the mother's right arm as well as the outside of her arm are consistent with the mother's version of a vicious attack. They are not consistent with the father's version of the mother falling off the bed – even violently – and hitting the floor. Falling violently on her arm might have resulted in bruising to the outside of the mother's arm. It is difficult to understand how that fall could also have resulted in bruising to the inside of her arm. And if, in some way the inside of mother's arm was bruised from the fall, it is difficult to understand how the extensive bruising could have occurred to both the inside of her arm as well as the outside.

(4) Extensive bruising to the face, and especially surrounding the entire orbit of her eye, could possibly have happened had the mother fallen squarely on her face, but in such a case it would have been her face that suffered the bruising, not the better part of the length of her arm, and certainly not to the extent of the bruising revealed in the photographs.

(5) The extensive bruising around the mother's right eye, the right side of her face next to her mouth, and above her lip, make the father's version that she simply fell on her right side, highly unlikely.

(6) The father's version that the mother fell on her right side, is inconsistent with bruising on the lower part of the mother's left eye.

(7) The bruising across the mother's neck, some 2 to 3 inches in length are consistent with significant pressure having been applied to the neck. That bruising is not consistent with a fall onto the right side of the body and striking the floor with a "heavy impact". Instead, the bruising across the mother's neck is consistent with her claim that father "threw me on the ground and strangled me".

[86] I wish to make it clear that I have approached this analysis not as a medical expert, nor even as a court taking judicial notice of the common ways in which injuries are caused.

[87] Rather I have looked at the factual evidence before me and applied basic common sense. All judges are products of their own everyday common experience. Judges are not completely "blank slates" when it comes to assessing evidence. It is important to emphasize that courts will not hesitate to assess evidence from a common sense, logical perspective. That is what I have done.

[88] And based on all of this I find as a fact that the mother's version of the Cuba incident is materially the correct version, whereas the father's version is quite simply not true.

3.3: The Fallout and Implications of the Father's Attack on the Mother

[89] It is hardly surprising that in the context of this vicious attack on her that the mother would take the position in her Application that the father should have no access. This is particularly so given that the Application was issued less than three months following that attack.

[90] Nor is it surprising that the mother would be traumatized by the incident, as reflected in the letter written by Dr. Letourneau which I referred to earlier. Accepting as I do the mother's statement that the father inflicted such serious injuries on her and also expressed his wish to kill her, it is completely understandable that the mother would then suffer from PTSD.

[91] Both parents acknowledge that T. was present when this assault occurred. T. was just shy of her second birthday at the time of the assault.

[92] It is important not to lose sight of what happened between the time of the attack and the ensuing 24-hour period. Father left the hotel room, leaving mother and T. behind; he went to a different room. Mother's face and body were badly injured; she would have been in significant pain. T. was with her mother all the while, in a room with her mother's body and face disfigured, with blood on the floor and on the wall, and with the mother suffering from what was undoubtedly severe pain.

[93] Then, somehow, mother managed to get herself and T. to the airport and onto the airplane the next day. Mother did this with facial fractures and a broken shoulder. And she had T. in tow. They undoubtedly sat together on the airplane on the trip back to Toronto. And then after arriving in Toronto, T. was with mother in some form of transportation back to the mother's apartment.

[94] What could T. have been thinking and feeling all the time this was happening, with her mother looking as disfigured as the photographs reveal, with her mother in as much pain as she must have been suffering? One can only imagine the impact all of this would have had on T.

[95] The events which subsequently unfolded when mother did agree to some supervised access must be looked at in the context of all of the foregoing. The mother said that while she had "reservations" about the appropriateness of access, she did believe that an attempt should be made to see whether a positive relationship between T. and the father was possible.

[96] Because the mother had a concern about the father's long history of drug and alcohol abuse, a term of the supervised access order included a requirement that the father was not to consume alcohol or illegal drugs either during or within 12 hours prior to the start of his access visits.

[97] As I noted earlier, mother did consent to a temporary order for supervised access on July 5, 2017. By that date it had been more than 16 months since the father had seen T.

[98] Because the CAS had by then become involved, that society insisted on supervising the first several visits to ensure T.'s safety.

[99] The first visit was scheduled for July 24, 2017. That visit did not proceed. I extract from the CAS notes of that date:

[the CAS case worker ("worker")] walked with T. to the other side of the lobby where [father] was standing. She ran back to grandma and grandpa. T. froze and hid behind me. She said she did not want to see him.

[the worker continued to try to gently persuade T. to see her father and brought her into the room where father was waiting] . . . She saw dad and immediately hid behind grandma . . . . She clung to grandpa's leg and held on tightly. She said she did not want to see him and wanted to go home. She began to cry.

[100] When the worker advised father that T. was refusing to see him, father responded that he would speak to his lawyer.

[101] On the same day father's lawyer wrote to mother's lawyer stating:

It is my client's belief that the child has been coached by either your client and/or her parents. . . . I am not a child psychologist; however, it is rather odd that the child could have possibly retained some memory from 18 months earlier.

[102] Mother's counsel responded in a letter dated July 27, 2017, stating:

My client is astonished that [father] was surprised by the result of his first access visit in a year and a half. T. is a 3-year-old child. She has not seen or spoken to [father] since February 2016. . . . The last time she saw [him] she witnessed him brutally assault and nearly kill her mother. To say this was a psychologically damaging incident is an understatement. . . . If [father] was expecting T. to run into his arms and shower him with hugs, kisses, and affection, it was a naïve and unreasonable expectation. To turn around and blame my client because his first visit in 1-1/2 years went poorly is pathetic. [Father] will have to work hard at rebuilding his relationship with T.

[103] These two letters effectively state the respective positions of the parties. Father asserts he has done nothing wrong to mother; he denies assaulting her and accuses her of "coaching" the child to emotionally distance T. from him.

[104] Mother continues to assert that the child witnessed a vicious attack by the father on the mother and, understandably, that this would have a dramatic and a lasting impact on the child.

[105] At this point it is also appropriate to note that when the mother was at home uploading the photographs of her injuries onto her computer, she acknowledged that T. came into the room and saw them. The mother says that she quickly closed her computer screen as the pictures were so difficult for the child to see; the mother says she was barely recognizable in the pictures. And when T. asked about the pictures, the mother did tell her that these were from the injuries she suffered during the attack in Cuba.

[106] No doubt, this only served to reinforce for T. the images and the memory of the incident itself that she had witnessed firsthand.

[107] The second supervised access visit was scheduled for August 8, 2017. When the worker brought T.

towards dad, T. immediately hesitated and ran back to her grandparents. She asked grandpa to come with her. They sat in the visit room together. I [the worker] brought dad into the visit room. T. clung to grandpa at the beginning of the visit when dad arrived. Dad took photos of T. and took a photo together. T. asked dad if he remembered when he pushed mommy. Daddy nodded. T. said "I remember".

[108] Father filed as exhibits three photographs of small pictures taken at that visit. Two of the pictures are himself and T. smiling into the camera. The third picture is T. herself smiling into the camera.

[109] The father's purpose in introducing those photographs was to establish that T. has no real fear of him, no discomfort and that she enjoys being in his company.

[110] However, these photographs represent approximately 1/100th of a second in time. The deceptiveness of trying to establish the quality of a relationship through a millisecond of time is obvious. People/children are typically told "look into the camera, smile". How many times does a photographer say "smile" before taking the picture? Or, in the case of a small child who is being photographed, the person holding the camera may be making a silly face, or waving a toy. There is a myriad of ways to make small children smile or laugh for the briefest fraction of a second.

[111] The third CAS supervised visit was scheduled for August 30, 2017. I extract the following from the CAS notes of that day:

I [the worker] asked [T.] if she could come with me for a few minutes [to see father who was waiting in the visit room]. She said she did not want to see her father. I asked why not. She said she wanted to go home and play with her mom. I said she could do this after she spent a little bit of time with her father. She turned her head toward her grandfather and I was unable to see her face or hear what she was saying. . . . Grandfather held onto T. for the entire time.

[112] Mother testified that she was later told by the worker that the grandfather had referred to the father as a "killer" in the presence of the child. Whether or not the grandfather said this directly to the child or the child simply overheard this, the mother acknowledged that the word should not have been used in the child's presence. The mother then directed the grandfather not to bring T. to any further visits, and to refrain from using similar language in the future.

[113] This was the last visit that was to occur at the CAS.

[114] In the meantime, the mother had been attempting to obtain counselling for T. Mother did organize a number of sessions between T. and Dr. Sara Taman. Dr. Taman wrote a brief report on September 7, 2017 which states in part:

T. has had a traumatic experience when she was in the room when her father beat her mother causing severe injuries. Since attempts have been made to have some visitation with her father, she has expressed fear of the situation and has been crying before and after the experience. . . . She is very young at age 3 but surely has memories of the traumatic experience and therefore it is not surprising that she would be afraid.

[115] Mother testified that she subsequently placed T. on a number of waitlists for psychological counselling, as recommended by Dr. Taman. However, the waitlists are generally a year or longer.

[116] Mother is a person of very modest financial means and is unable to afford private counselling or therapy.

[117] Just recently T. was accepted into the Child Development Institute ("CDI") and, as at the date of trial, she had attended three sessions at CDI.

[118] Subsequent to the CAS visits, the parties managed to organize visits at APCO, having previously done their intake forms and having been accepted into the APCO program.

[119] I do not propose to go through the notes of each of the APCO visits in detail, apart from the following.

[120] Between the end of April 2018 and early July 2018 it appears that there were six visits in total. It is fair to characterize those visits overall as unsuccessful.

[121] During those visits, and attempted visits, T. would often make comments that were similar to those she made at the CAS visits. I cite some examples:

(1) When father came to APCO on April 29th to drop off toys and T. was asked if she wanted to see her father, she said, "I don't think it's a good idea." At the same visit, T. told her mom that she was not scared but didn't get "too close". Mother softly asked "how come you were not scared?" T. said "I didn't get too close, are you happy?"

(2) At the May 13th visit, T. told staff "tell him I'm not ready". When staff told father of this, father said "that's what happens when kids are coached".

(3) At the June 10th visit, as staff approached T. to take her to the visit room, T. said "no, no, no, I don't think I can do this". T. repeated her refusal to go and staff informed father who responded that T. was "brainwashed".

(4) At the June 24th visit, mother told T. "try, you can try". T. said "okay". T. referred to her father has "tricking me" by bringing her toys. Staff continued to try to encourage T. to see father, but T. continued to assert that she didn't want to visit, making statements like "I can't do it". She also said "my family is going to be so proud of me that I didn't see him". Staff asked why and T. said, "because the thing he did to my mom".

(5) At the July 8th visit, T. stated clearly that she didn't want to be at the centre and "I don't want to see him". She also said to staff "why did he hurt my mom?" Staff cancelled the visit due to the ongoing insistence of T. not to see her father.

[122] Father argues that some of the comments suggest that T. was being coached by either the mother or the mother's family, that there was an agenda to alienate T. from her father by reinforcing T.'s fear of him, or perhaps even instilling a fear in her that wasn't really there.

[123] Father points to a number of text messages which mother sent to him right after the assault. All of these message exchanges took place on March 3, 2016, only three days following the father's attack on the mother, and the day after mother returned to Toronto from Cuba. Father argues that the following messages are evidence of mother's agenda to sever the child's emotional connection with the father. Those text messages are set out below:

(1) Father: All I remember is T. crying for her daddy, u must have taught her that

(2) Father: I'm sure your daddy won't let that happen

(3) Mother: ok K.L.S watch what happens then

(4) Mother: N u will pay – so much more and with all u have

(5) Mother: My daddy!!! Yes a father! Look at urself she will never call u that again

(6) Mother: U r still like that – well then – let's see who waits for u at the border!!!

(7) Mother: I was going to think about not pressing charges but that's out the window now

(8) Mother: Just the list of my broken bones will put u away for a while and then good luck seeing your daughter – I didn't want to take it there but u just did

(9) Mother: Ur whore mother tooo – no one will b spared

[124] Given the viciousness of the attack and the extensive injuries suffered by the mother, and the pain that she must have been suffering in the days following that attack, it is understandable that the palpable anger which pervades these texts messages would be bubbling to the surface.

[125] That said, between the date of these text messages and July 5, 2017 when mother did consent to a temporary access order, approximately 16 months had elapsed. It is reasonable to conclude that in that period of time, the anger, the physical pain and, possibly, some of the emotional pain must have started to subside, at least to some extent.

[126] I cannot conclude with any reasonable degree of certainty that the active coaching that father alleged was in fact occurring behind the scenes between T. and her mother or her grandfather, during the time of these access visits.

[127] To the extent that T. may have been influenced by her mother or the maternal grandfather, I do not conclude that was the kind of intentional alienation which occurs when one parent despises the other and decides to use their child as a pawn in the conflict by alienating the child from that other parent.

[128] In fact, I conclude from the evidence that mother was making the types of efforts to facilitate access, that she was capable of doing in the circumstances. For example:

(1) As I noted earlier, mother consented to an order for supervised access, despite her real and understandable trepidation;

(2) When mother found out what her own father was saying in T.'s presence she directed her father to stop making comments like that;

(3) She acquiesced to the father's request that the grandfather not bring T. to any further supervised access visits; and

(4) She placed T. on a number of waitlists for therapy, the point of which was to help T. heal from the trauma she suffered in the fallout of the attack on her mother and, from there, to possibly move toward reconnecting with her father.

[129] In the present case, I agree entirely with the statements articulated by Ms. Connerty in her OCL report:

T. is close with her mother and her maternal grandparents. Currently she spends every day with her mother. T. was in the room when her mother sustained serious injuries in Cuba. The event in Cuba has impacted both T. and mother. The two [mother and T.] are closely connected and therefore T. looks to her mother for how she should respond. [Mother] is afraid of [father] and has been traumatized by the events that occurred in Cuba. [Mother] has shown photos of her injuries to T. This combined with T. being present in the room when her mother sustained the injuries has left a lasting impression.

[Mother's] family physician informed that it would have been scary for T. to be with her mother in Cuba and then on the plane ride home, her mother's face was distorted, her mother was unable to pick her up. T. was just about to turn two years old when the altercation occurred. Everyone who actively cares for T. has been impacted by the injuries [mother] sustained in Cuba . . . . T. stayed with her maternal grandparents while [mother] received [hospital] treatment and during her recovery. There is no way that T. is not exposed to this entire family's focus on who they believe to be the cause of [mother] being afraid to go out, her poor memory, her difficulty lifting things. All of these issues make it difficult for the [maternal] family to encourage T. to have a relationship with [father].

[Mother] has been attending at the supervised access centre and following through as expected. She currently is not able to encourage T. any more than that because she does not feel that it is safe to T. to be with [father].

[130] I agree with Ms. Connerty's assessment of where T. is at emotionally and why she reacts the way she does and the reason for her various statements to her mother or to her maternal family.

[131] In Milanizadeh v. Zeinali, 2011 ONSC 870, the court had occasion to discuss the concept of parental alienation. Citing Bala et al., "Alienated Children and Parental Separation: Legal Responses in Canada's Family Courts" (2007), 33 Queen's L.J. 79 – 137, the court states, at paragraph 109:

Without realistic justification, an alienated child expresses hatred or intense dislike of a rejected parent.

[132] I believe that what Ms. Connerty is saying is that there is a realistic and understandable reason for T.'s current rejection of her father. I agree, and I would not characterize what is going on in this case as alienation. I would not even characterize it as a form of active coaching. Rather, it is the understandable fallout from the events that occurred and the way in which human nature works in such circumstances.

3.4: The Father is not Child-Focused

[133] In order for access to be successful, the parent exercising that access must be completely child focused. In some ways the need to be child focused is even more important for the access parent than it is for the custodial parent. I say that, not because it's a principle of law, but rather something which is dictated by common sense.

[134] A custodial parent with whom the child spends 24 hours a day, seven days a week, typically will have a stronger and more nurturing relationship with her child, as compared to a parent who may see that child only a few hours each week. The primary parent can afford to take some "me time" without worrying that the relationship will become impaired.

[135] However, an access parent who spends just a few hours each week with a child must work at every one of those few precious hours to hold his child close, to focus only on the child, the child's needs and the child's wants. He must be learn to read his child's cues and work hard at building and solidifying the parent-child relationship.

[136] And, in my view, whatever amount of focus and attention is required for the access parent, is even more so when the access is supervised. Supervised access of an hour or two a week means, by definition, that a relationship needs repairing. And the repair work comes mostly from the parent, not the child. The parent must be able to demonstrate insight into the child's needs and exactly what steps he must take to make that repair happen.

[137] The nature of that limited form of access does not allow for selfishness on the part of the parent. It cannot unfold effectively if the parent takes a self-centered attitude with him into the access visits.

[138] It is these qualities that the father in this case is lacking and, accordingly, why the court is unable to agree to his request for supervised access.

[139] I turn to some of the evidence which has led me to that conclusion.

[140] Early on in their relationship, it appears that the parties engaged in a lifestyle which involved alcohol and drugs, sometimes to excess.

[141] Mother did acknowledge that in November 2008, six years prior to the child's birth, she was hospitalized because she overdosed on cocaine and GHB.

[142] The OCL notes in its report that on another occasion, in December 2010, mother overdosed on drugs as well. Mother acknowledges this incident did occur. Again, that was years before the birth of T.

[143] At the time the parties first met, the father acknowledges that he had been selling drugs. However, he says he gave up that lifestyle.

[144] Previously, in 2001, the father had been convicted of drug importation in France and had served approximately two years in prison.

[145] While all of this pre-dates the birth of the child in 2014, it does provide somewhat of a backdrop for later events.

[146] At trial, the father took the position that up until the time the parties separated following the father's attack on the mother in February 2016, the mother was an "alcoholic" and she was "drunk all the time". Additionally, he claims, she continued to be a drug addict and that she would abuse drugs to the point of overdosing on those drugs.

[147] The father claims that during the time he knew the mother she constantly associated with drug addicts. He was adamant at trial that she "most definitely" used drugs.

[148] The father describes an incident in April 2014 when T. was about one month old. He says that he had returned to the apartment and observed the mother feeding the child. He says she appeared very tired and was "nodding asleep". He then says that she "almost dropped the child" and he had to "lunge" to catch her to prevent her from falling. Mother said she was exhausted from lack of sleep. However, the father says that he found GHB in a bottle and accused the mother of taking these drugs. He said that he threatened to call the CAS but did not carry through on this threat. Instead, he says:

I gathered as much of my belongings and decided to leave the apartment. I simply did not want to remain in the apartment with the mother because I wanted to avoid a confrontation. . . . Although I was concerned about the child, I did not believe that the mother would purposely harm the child.

[149] What the father is telling the court is that, according to him, the mother was a drug addict, who was actively consuming drugs and who was placing the child at risk of harm; but because he wanted to "avoid a confrontation with her" he simply packed his bags and left.

[150] He put his own wish to avoid a confrontation ahead of the protection of his child. Either this incident happened as he described it, in which case he ignored his infant child's wellbeing, or the father simply lied about this incident in order to gain a litigation advantage at trial.

[151] He offered no explanation as to why, if he was concerned about his child's wellbeing, he declined to call the CAS and alert them to the risk of harm.

[152] And yet he consented to the mother having sole final custody.

[153] Turning to the Cuba incident, according to the father, the mother was a "violent drunk" person when she attacked him. And yet, according to the father's version of the events after the security persons came to the hotel room, he voluntarily packed his bags and left T. with her mother – a person who the father claims to have been a "violent drunk".

[154] Father was specifically asked whether he had any regrets about leaving T. behind with a mother who he claims to have been drunk and violent. At trial he was given the opportunity to reflect on and reconsider his decision, but instead of doing so, he doubled-down on his position and asserted that he had no regrets whatsoever.

[155] In taking that position father completely misapprehended a very basic principle of parenting, namely, that a child is better off almost anywhere, rather than being exposed to the risk of harm which comes from leaving a child – particularly a very young child – in the care of a violent drunk parent.

[156] The Cuba incident itself reveals much about the father's ability to focus on the needs of his child. Regardless of how the argument between the parents began, the father's actions in violently beating the mother go directly to subsection 24(4) of the CLRA. This wasn't just violence but, rather, violence in the extreme.

[157] Furthermore, the father was entirely unable to control his temper and he disregarded the fact that his not-quite two-year-old daughter was in the room and witnessed her father's violent attack against her mother.

[158] By the time father returned from Cuba to Toronto on May 19, 2016, he hadn't seen T. for about 2-1/2 months. He took no steps to inquire about T.'s wellbeing.

[159] And yet, in father's mind, T. was living with a violent drug and alcohol abuser.

[160] When he was served with the ex parte temporary restraining order dated May 27, 2016 he was aware that court would be returning to this matter on June 14th. And yet, while he attended court on June 14th, the father did not file any material in response to the mother's motion.

[161] It is important to understand that the May 27th court order also prohibited the father from having any access to the child on a temporary basis. The father, if he was focused on the child's wellbeing, if he was concerned about the child living with an alcohol and drug abuser, would have wanted to gain immediate access to T.

[162] And yet he filed no material prior to the June 14th court date.

[163] The June 14th date was adjourned again, to July 18th. Once again, the father did not file any material. By this date it was approaching 5 months since the father had seen T.

[164] When the father was asked at trial what he had been doing all this time, why wasn't he treating this matter as urgent, why wasn't he focused on reconnecting with his child as quickly as possible, he responded "I was getting my life in order".

[165] It was more important to father that he get his life in order, than it was to look out for the welfare of his child who, he professes, was living with a substance abuser.

[166] The July 18th court date was adjourned once again, to September 22, 2016. By that date the father had filed material and he had brought a motion for access. However, Justice Paulseth found that the father had a "cavalier attitude to D.V. and absences" and she found that access was contrary to the child's best interests.

[167] The OCL clinician noted a number of things regarding the father's ability and willingness to focus on T. In her report, the clinician stated:

(1) Mr. S. acknowledges for example that given the choice of leaving T. with a parent who was high on GHB or caring for T. himself he would rather leave T. with a parent he believed was high.

(2) When in Cuba Mr. S. took no steps to ensure that T. would be okay. She was staying with a parent who was seriously injured and who could not carry her two year old child. For example, Mr. S. did not ask his mother to check on Ms. P. when she arrived at the airport to see if she needed help getting home.

(3) He did not speak to the hotel management in Cuba to ensure that Ms. P. had supports in place to care for T. for the duration of the trip or on the flight home.

[168] The OCL clinician concluded:

Mr. S. will have to work to build his relationship with T. One way he can do this will be to participate in a program that emphasizes empathy and parenting. When Mr. S. saw T. at APCO, she asked him "why did you do that to her". Mr. S. will have to think about and find ways to respond to T.'s question in a supportive manner.

[169] When father was asked at trial whether he had taken steps to implement the OCL recommendations for counseling, he said he looked at the Caring Dads program online and telephoned, but when he discovered that the program hours conflicted with his work hours he decided not to pursue counselling. Caring Dads was one of the programs recommended by the OCL clinician to assist father in becoming more child focused, more in tune with how to understand, empathize with, and nurture his daughter.

[170] The recommendation that father take the Caring Dads program also came from the CAS, as early as October 2016. However, father's response was that he had done nothing wrong and that he would not have anything to say to a counsellor.

[171] Father says he was unemployed during March and April 2018; and yet he took no steps toward finding and beginning counselling during that period of time.

[172] The father says that he believes T. should have therapy, but that it should be therapy for parental alienation. Parental alienation was the father's oft-repeated mantra throughout the trial.

[173] The notes of his first supervised access visit with T. revealed that T. had a look of terror on her face when she first saw her father. Father agreed with this statement in his trial testimony. And yet he continued to insist that T.'s attitude toward him could be remedied by a program designed to address the ill effects of parental alienation, because he believes that the child has been coached; he also believes that he has been vilified by the mother and the maternal grandfather.

[174] Father was asked at trial whether, if his belief in this regard is sincere, what steps had he taken toward finding a therapist who specialized in alienation therapy. He acknowledged that he was unable to provide either the name of a therapist or the name of any program which addresses the effects of parental alienation.

[175] He believes his daughter has been coached. If he was child focused, he would have rolled up his sleeves and obtained the name of a therapist, the name of a program, and offered this information to the mother, together with an offer of financial assistance so that T. could immediately begin therapy. He did none of these things.

[176] When mother consented to an order for supervised access on July 5, 2017, she also consented to an order giving the father the right to

Consult with and obtain information, records, and report cards directly from the child's teachers, doctors and any other professionals involved with the child about the child's health, education and general welfare.

[177] Father states that he is interested in T.'s welfare; but he has done nothing about contacting any of the professionals in T.'s life. More specifically, the court made reference earlier to T.'s physician, Dr. Sara Tamer who saw T. on a number of occasions and who expressed her views about the impact on T. having witnessed the father's attack on the mother. The father took no steps to contact Dr. Tamer.

[178] The father has little or no understanding of the needs of a 4 or 5 year old child. He acknowledged as much.

[179] Furthermore, when T. was less than two years old, crying in the crib, the father chastised the mother for taking her out of the crib to comfort her. Instead, he asserted that T. required discipline instead of comforting.

[180] Father does acknowledge that T. is reluctant to come to supervised visits, and that more often than not she is simply refusing to see him. In the face of those refusals, the court would have expected a parent who is child focused to recognize that the child's fears should be addressed in a therapeutic setting. Instead, when father was asked how he would expect to get over that hurdle, his response was that the maternal grandfather should be removed from T.'s life.

[181] The father was asked why T. should have access to him. Instead of focusing on T.'s rights, and T.'s best interests, the father replied that he has the right to access because "she's my blood".

[182] Not only does he believe that he has this right, but he believes he has this right even if T. doesn't want to see her father.

3.5 Brief Case Law Relevant to Father's Access

[183] Both counsel submitted case law on the issue of whether, and in what circumstances, courts ought to order no access for a child.

[184] The case of M.M.B. (V.) v C.M.V., 2017 ONSC 3991, was submitted by father's counsel. It is a very lengthy case, consisting of some 1200 + paragraphs. It was a case where the parents had consented to an order for parallel parenting in 2013. However, the mother sought to vary the order on the basis that the father had alienated the three children of the relationship.

[185] Justice R. T. Bennett found that the father had engaged in severe alienation. On that basis the court changed custody to the mother solely. The court required the mother to enroll the children in family therapy to help the children adjust to living with the mother.

[186] That case is not helpful to this court, as the facts and circumstances are very different. I have found as a fact that the mother has not actively engaged in alienating T. from her father. There is no need to repeat my earlier comments in this regard.

[187] In the case of I.A. v. M.Z., 2016 ONCJ 615, Justice Stanley Sherr had occasion to consider whether a father should be denied access entirely. The facts of that case, while far from identical to the facts of the present case, have a number of similarities. I propose to cite from certain portions of Justice Sherr's decision.

[188] The father in that case was facing criminal charges of Fail to Comply, Mischief and Threaten Bodily Harm with respect to the mother.

[189] At paragraph 36, Justice Sherr stated:

A parent does not have an absolute right of access. Access is only to be ordered in circumstances where there will be a benefit to the child. It is not sufficient to show that access will not harm the child; that is far too low a threshold. However, refusing access should only be ordered in extreme circumstances. See: Worthington v. Worthington, 2000CarswellOnt 4889 (SCJ).

[190] At paragraph 39, Justice Sherr stated:

In M.K. v. T.R., [2014] O.J. No. 596, this court denied access to a father and considered the following:

a) The father had been violent and controlling towards the mother during their relationship.

b) The father denied having been violent. This made him a poor candidate to change.

c) The mother's stress and anxiety over the prospect of reintroducing the father into the family life was a significant consideration as it risked destabilizing the children and causing them anxiety.

d) Access is only to be ordered in circumstances where it will benefit the child.

[191] At paragraph 69, Justice Sherr commented about the father's behavior:

The father demonstrated little insight into his behaviour and its impact on the mother and the child at trial. He denied any violence towards the mother. Threatening to f-up the mother and her family and to come to her home with a gun if she leaves him is profound violence.

[192] Justice Sherr's decision in M.K. v. T.R., 2014 ONCJ 54 is also helpful for a number of other comments in that case. At paragraph 87, Justice Sherr refers to one of the children, D.M., who was 11 years old at the time of the decision:

D.M. does not want to see her father. I accept that over the years D.M. may have adopted some of her mother's views and recollections about incidents that happened several years ago. However, it is also very clear from the evidence that D.M. was frequently exposed to a harsh and violent father and it is more likely than not that she independently remembers him as a frightening figure. It is likely that D.M. has been adversely affected by these experiences, and that this is a contributing factor towards her reluctance to visit with her father. Her estrangement from him is understandable.

[193] While I understand the submission made by father's counsel in this case that T. may be expressing certain sentiments that have come from her mother or her grandfather, it is to be expected that young children who are closely aligned to one primary parent will naturally adopt and assimilate the views and emotional responses of that primary parent, as in the M.K. case, supra. This is something I discussed earlier when I referenced Professor Bala's comments which the court adopted in Milanizadeh, supra, as well as the comments from Ms. Connerty, the OCL clinician.

[194] There are a number of other cases where courts have decided that it was in the best interests of children to sever access entirely with one of the parents. However, the considerations of the courts in those cases rely essentially on the same principles. While the cases tend to be very much fact-driven, what they all come down to is whether access between the child and the parent is in the child's best interests.

[195] Father's counsel submits that the tendency of the courts to deny access altogether when violence is involved is more likely to occur in cases where there has been a lengthy history violence. While that may be so in a number of cases, it does not take away from the principles which are enunciated in the foregoing cases, namely, whether the proposed access is in the child's best interests.

[196] Violence against a primary parent is only one of the considerations, albeit an important consideration.

[197] And in a case like this where the mother was beaten as viciously as this mother was, and where the attack occurred in the child's presence, it matters not that there was no prior history of violence between the parties.

3.6 Access Conclusions

[198] All things being equal, it is always better for a child to have two loving and nurturing parents in her life, rather than one.

[199] But where one of the parents lacks the ability and willingness to be focused on his child, where he has no insight whatsoever into how his behavior negatively impacts his child, the child will be better off with just one parent, one parent who is a positive and nurturing influence.

[200] I don't doubt that the father in this case loves T. in his own way. Some evidence of that is that he did manage to show up for his scheduled supervised access visits at the CAS and at APCO. If he was totally disinterested he simply would have stayed away.

[201] At least on some level, the father would like to be a parent to T. And for that, he deserves some recognition from this court.

[202] However, the father has a long road to travel before access can be considered to be in T.'s best interests.

[203] In addition, T. has to travel her own path, with the assistance of both her mother as well as a therapist. T. has recently begun this journey with her therapeutic appointments at the CDI.

[204] T. will hopefully continue with her counselling at the CDI, counselling which, because of T.'s age likely consists of play therapy. I expect that the therapy will be for an indeterminate length of time. However, the hope is that T. will begin to recover from the trauma of having witnessed her father's violent attack on her mother.

[205] Very extensive and significant work needs to be done by the father. First, he must accept responsibility for his actions, unreservedly, and without blaming anyone else, especially the mother.

[206] He needs to engage in some form of counselling with a qualified therapist where he is completely transparent and forthcoming about his actions and what has led to this court's decision to terminate his access to T.

[207] He needs to be able to tell the therapist the full and unvarnished history without in any way spinning it so that he appears in a more favourable light than what the findings of this court reveal.

[208] What he should do, for complete transparency, is provide the therapist with a copy of this judgment and then acknowledge to the therapist that the problems recognized by this court are the problems he sincerely wishes to address.

[209] And then once all of that is accomplished – however long it might take – he needs to reflect on how he will apologize to his daughter for his actions. Whether that is an apology which occurs, at least initially, by way of a letter or whether it can occur in person in a controlled setting which the mother is agreeable to, is something that remains to be determined at a later point in time.

[210] This court would like nothing more than someday to be able to see the beginnings of a reintegration of T. into the father's life.

[211] However, at this stage, and for all the reasons I have articulated, I have regrettably concluded that access, any access, would be contrary to T.'s best interests.

4: Other Incidents of Custody

[212] At the outset of these reasons, at paragraph [1] (5), I set out the other incidents of custody that the mother was seeking. Those include the mother's right to obtain the child's passport and other government-related documents, and to travel with the child anywhere, all without the father's consent.

[213] The father objected to the mother's request that she be allowed to travel without his consent. He expressed a concern that mother might travel with the child to Serbia and never return.

[214] However, the mother came to Serbia as a war refugee in 1992. The only time she returned to Serbia was in 1999 when her maternal grandmother, who was like a second mother to her, was dying. Mother stated, and there is no reason for the court to believe otherwise, that she has no plans to return to Serbia herself or to take T. to Serbia.

[215] It follows that because, at least for the foreseeable future, the father will have no involvement in T.'s life, there is no justifiable reason for the mother to have to seek the father's consent or permission for any of these things.

[216] There will be an order permitting the mother to travel and obtain all documents as requested, all without the father's consent.

5: Child Support

5.1 Ascertaining Father's Income

[217] The mother seeks an order imputing income to the father in the amount of $53,833 for purposes of calculating his child support obligation. She asks that the court make this order retroactive to March 1, 2016, the first day of the month following the Cuba incident.

[218] The mother asks the court to impute income to the father in an amount greater than what he has disclosed or estimated.

[219] The court must therefore decide two things. First, should the court accept the income amount which the father has disclosed, and order child support to be paid on the basis of that income? If so, then there is no need for the court to consider whether to impute an income to the father and, if income is imputed, how much that income ought to be.

[220] If the court is not prepared to accept the father's disclosed/estimated income for child support purposes, then the court must consider the law in relation to imputing income and how much income should be imputed to the father, on the evidence before the court.

[221] The father seeks an order that he pay child support, commencing June 1, 2018, based on what he says his 2017 is, namely, $23,824.

[222] For reasons which I will discuss, I have concluded that the father's reported/estimated incomes for the years 2016 to 2018 is not reflective of father's income-earning capacity.

[223] Section 19 of the Child Support Guidelines provides:

Imputing income

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

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

(b) the spouse is exempt from paying federal or provincial income tax;

(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

(e) the spouse's property is not reasonably utilized to generate income;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

(g) the spouse unreasonably deducts expenses from income;

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

[224] One of the purposes of imputing income is to give effect to the recognition that parents have an ongoing obligation to support their children, and to pay support based on incomes which are fairly attributable to those parents.

[225] The leading case on the imputation of income in Ontario is Drygala v. Pauli (2002), 29 R.F.L. (5th) 293 (O.C.A.).

[226] In deciding what is meant by "intentionally" at subparagraph 19(1)(a) of the CSG, the Court states, at paragraph 28:

Read in context and given its ordinary meaning, "intentionally" means a voluntary act. The parent required to pay is intentionally under-employed if that parent chooses to earn less than he or she is capable of earning. That parent is intentionally unemployed when he or she chooses not to work when capable of earning an income. The word "intentionally" makes it clear that the section does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work.

[227] In determining whether the parent is "intentionally" underemployed or unemployed, there is no requirement to find bad faith on the part of that parent. (Drygala, paragraph 36)

[228] The Court of Appeal is effectively stating that child support obligations will be based on the payor's capacity to earn an income.

[229] At paragraph 44 of Drygala, supra, the court states:

[44] Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence.

[230] Accordingly, this court must decide what income is appropriate to impute to the father, based on the evidence led at this trial.

[231] The father testified that between 2006 and 2010 he worked as a tile setter for his uncle's company B & T Tile. He says that during that five-year period he earned between $23,000 and $31,000 per year.

[232] He says that for the years 2011 and 2012 he worked at "small private jobs and earned very little income." In fact the Notices of Assessment for those two years reveal that father earned no income in either of those two years.

[233] He did not explain why he did not work. Was he prevented from doing so for health or other valid reason? He did not explain why, if he was an experienced tile setter he was unable to find employment. He did not explain how he was able to support himself on what appears to be no income at all.

[234] Nor did the father offer up any other source of undeclared income for those two years.

[235] Given a lack of explanation for any of the foregoing, it is reasonable for the court to conclude that the father was in fact in receipt of an income, that this income was in the form of cash and that the father chose not to declare that cash income in his 2011 and 2012 income tax returns.

[236] Then, apparently in 2013 he was again working as a tile setter, this time for NJ Ceramics. He says he continued to work there until December 2016. He left NJ because he says the company was not doing well.

[237] His line 150 income on his Notices of Assessment for those years revealed:

(1) 2013 - $29,591;

(2) 2014 - $59,556;

(3) 2015 - $53,833; and

(4) 2016 - $36,185.

[238] Father stated that his 2016 income had dropped to this level from 2015 because, at least in part, he was detained in Cuba from the beginning of March until May 19, 2016. That said, while he justifies this detention as something over which he had no control, I have found that he attacked the mother and, accordingly, the fallout from that, specifically, his detention, resulted from his own misdeeds.

[239] He says that he was unemployed from January 2017 until April 2017 "due to a shortage of work".

[240] For the year 2017, he did not file an income tax return. He offers no explanation for this failure, notwithstanding the fact that this trial took place about 10 months into the 2018 year.

[241] The only disclosure which the father provided respecting his 2017 income was a Form T5018 "Statement of Contract Payments" which states that he was paid $23,824 by Geri Contracting. The father is shown on that Form as a "construction subcontractor".

[242] Father did offer in his testimony that this income figure was skewed by the timing of a cheque that he received early in 2018 in the amount of $7,000 which should more properly have been applied to his 2017 income.

[243] The Form T5018 reveals that the period for which the father received these payments was for the year ending December 31, 2018.

[244] Of course, this payment period neither makes sense, nor does the father attempt to explain that there may have been a typographical error in the Form itself.

[245] This raises a red flag for the court in terms of the authenticity of the document and, accordingly, the more important question, how much did the father actually earn for 2017.

[246] Nor did he file an updated sworn financial statement prior to this trial. In fact the last sworn financial statement filed by the father is dated July 11, 2016.

[247] Subrule 13(12) of the Family Law Rules states:

(12) Before any case conference, motion, settlement conference or trial, each party shall update the information in any financial statement that is more than 30 days old by serving and filing,

(a) a new financial statement; or

(b) an affidavit saying that the information in the last statement has not changed and is still true. O. Reg. 202/01, s. 3 (2).

[248] Father did not comply with this mandatory financial disclosure. Nor did he provide any reason why he was unable to do so.

[249] Furthermore, mother's counsel wrote to father's counsel on July 25, 2018, requesting financial disclosure. There was no response to that request.

[250] Mother's counsel wrote again to father's counsel on August 20, 2018 requesting that financial disclosure. He followed this up again with a letter dated August 31, 2018. And once again, no substantive reply was forthcoming from father's counsel.

[251] In Woofenden v. Woofenden, 2018 ONSC 4583, Justice Marvin Kurz stated at paragraph 38:

Where 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.

[252] For 2018, father says that he was unemployed from March to April.

[253] He then says that from May 2018 to September 8, 2018 he worked as a "lead framer" for Benoit Construction.

[254] He provided no paystubs or any other type of disclosure in respect of the income he earned as a lead framer for Benoit.

[255] He then says that beginning September 11, 2018, he began employment with Ferpal Infrastructure as a "video technician". He filed some paystubs from Ferpal.

[256] It appears from those paystubs that father was earning anywhere from about $1,475 to $1,541 weekly from Ferpal.

[257] His rate of pay at Ferpal is $23.50 per hour and $35.25 for overtime hours, which begins after 50 hours per week. He says that after he has worked for 600 hours his pay increases to $29 per hour. Overtime would then continue at 1.5 times after 50 hours, that is, $43.50 per hour.

[258] He was asked how much he expects to earn in 2018. At one point in his cross-examination he said that he expects his income to be about $5,000 per month. However, he said that he may only work 8-9 months because of a possible layoff beginning in January.

[259] What he did not take into account is the fact that if he were laid off for a period of 3-4 months, he would then likely be eligible for employment insurance benefits.

[260] He then said he might not receive a layoff because there is a possibility he may be sent to the United States to work for his company. He would then continue to earn $5,000 monthly.

[261] At another point in his testimony he estimated his income for this year to be about $40,000.

[262] At yet another point in his testimony he stated

maybe I will make $60,000 to $70,000 per year, maybe I won't.

[263] Clearly, his testimony in respect of his current income was scattered and internally inconsistent. Accordingly, the court must conduct an analysis based on the information which the father has disclosed, albeit fragmented in nature.

[264] On the evidence of his paystubs, he is presently earning about $6,000 per month, before his hourly rate increase takes effect. Once that occurs, his income would increase by about 20%, that is, to about $7,200 monthly. So that even if he worked 8-9 months his annualized employment income would range from about $56,000 to $65,000. And this is assuming he is not given the opportunity to work in the United States, which would enable him to be employed for a full 12 months. In that eventuality his income would closer to $86,000 on an annualized basis.

[265] The combination of father's fragmented disclosure, his lack of disclosure, and his inability or unwillingness to explain gaps in his employment and the large variances in income from one year to the next places his credibility in doubt.

[266] Father's credibility in respect of the financial issues is exacerbated by the findings I made in respect of what occurred in Cuba when, despite his denials, he inflicted a vicious attack on the mother.

[267] His credibility is also undermined by his failure to properly disclose prior criminal convictions in his Form 35.1 Affidavit. That Affidavit specifically requires a person who is making a claim for custody or access to list all criminal offences for which he has been found guilty and for which no pardon has been granted.

[268] The father failed to disclose his drug conviction in France for which he served approximately 2 years in prison.

[269] He also failed to disclose another of his convictions, this one in Canada. The OCL obtained this record as part of its investigation, and which revealed that on September 19, 2011 he was convicted of fail to comply with recognizance, resulting in a revocation of bail.

[270] It is noteworthy that the father earned $53,833 in the last full year before the parties separated. Justice Paulseth then made a temporary child support order in the amount of $487 per month, commencing August 1, 2016.

[271] The father then turned his mind to filing his income tax returns and immediately returned to court seeking a reduction in his child support obligation based on his recently-filed 2016 return disclosing an income of $36,185. Justice Paulseth reduced his obligation to $334 per month.

[272] Then, as I noted earlier, the father took no steps to file his 2017 income tax return and, instead, he rested his position entirely on the disclosure of the aforementioned Form T5018 which pertains not to 2017, but to 2018.

[273] This is all highly suspicious and suggests to the court that the father had a reason not to make proper financial disclosure and/or that he altered the Form T5018 which he did produce.

[274] For all of the foregoing reasons I have concluded that the father was intentionally either unemployed, or underemployed, or that he simply failed to disclose fully the income which he did receive during the years in question.

[275] As Drygala points out, it is not open for a court to simply arbitrarily pick an income amount for child support purposes. Rather, the amount imputed by the court must be based on rational considerations.

[276] The father was a highly experienced tile setter for 10 years, until about December 2016. He disclosed no reason why he was unable to continue working as a tile setter during the months from January to April 2017 when he says he was unemployed. Accordingly, I do not accept the father's position that his income-earning capacity should be reduced by those months of alleged unemployment.

[277] Nor do I accept the father's statement that his income for 2016 should be reduced to $23,824 based on his own criminal act which led to his detention in Cuba for a period of 2-1/2 months. A payor's support obligation should not be reduced when he engages in reckless criminal behavior which results in a loss of income-earning opportunities. See for example Scott v. Chenier, 2015 ONSC 7866.

[278] Furthermore, for 2016, the father does not explain why, after 10 years of experience as a tile setter, he would choose to work as a "framer" and apparently earn less money.

[279] Nor does father explain why he was unemployed for the months of March and April 2018.

[280] I conclude from all of the foregoing that income should be imputed to the father in the amount of $53,833 for the years 2016 and 2017, this being the amount that father earned in 2015, prior to the parties' separation.

[281] Based on my earlier comments with respect to the father's current income at Ferpal I would have been open to considering a higher imputation for 2018 and beyond. However, since the mother was only seeking an imputation in the amount of $53,833 for all periods in question, I will refrain from imputing a higher amount to father.

5.2: Quantifying the Table Amount of Child Support

[282] Mother's request is for child support to commence March 1, 2016, being the first day of the month following the parties' separation. However, her Application was issued on May 24, 2016 and she did not plead retroactive support. Accordingly, my order for support will commence June 1, 2016.

[283] The Guidelines table support from June 1, 2016 will be based on the previous Guideline table amounts before the Guideline tables were amended in November 2017. The Guideline table support is $487 for the period June 1, 2016 to November 30, 2017.

[284] Commencing December 1, 2017 the table amount of support will increase to $496 monthly.

5.3: Section 7 Support

[285] The mother did not make a claim for section 7 expenses in her Application. Accordingly, by letter dated July 25, 2018, mother's counsel wrote to father's counsel asking for consent to amend mother's Application to seek section 7 expenses.

[286] By letter dated August 23, 2018 father's counsel replied, stating that his client would not consent to the requested amendment.

[287] Mother's counsel wrote again on August 31, 2018, asking that father reconsider his refusal, pointing out that a refusal would necessitate a new Application before the court, with increased legal expenses and a prolonging of the litigation.

[288] When father continued to refuse the requested amendment, Justice Sherr granted the amendment at the Assignment Court on September 12, 2018, on the basis that mother's claim for section 7 expenses would be prospective only, that is, from August 1, 2018 forward.

[289] At trial, the father testified with respect to the mother's claim for section 7 expenses:

I do not believe the Applicant ought to be rewarded for keeping my child away from me for illegitimate and improper purposes.

[290] On cross-examination the father was asked about his refusal. He asserted that he was refusing because of his belief that mother was alienating the child.

[291] The father regarded the payment of section 7 expenses as a "reward" to the mother rather than as a benefit to his daughter.

[292] All of that said, the father did not challenge the amount and the characterization of the section 7 expenses that mother was claiming. That is, he did not suggest that those expenses were either inaccurate or that they did not qualify as section 7 expenses under the Guidelines.

[293] The mother's claimed section 7 expenses for extraordinary extracurricular activities amounts to $2,270 per year, or $189 per month.

[294] Based on the undisputed income of the mother for 2017 in the amount of $30,248, and the father's income imputed at $53,833, the father's section 7 obligation is 64%, or $121 per month.

[295] This amount will be added to the table amounts of support payable by the father.

5.4: Calculating Arrears of Support owing by Father

[296] The arrears owing by father are calculated as follows:

(1) From August to December 2016, father paid $487 per month, for a total of $2,483. It follows from my reasons that support is payable from June 1, 2016 to December 31, 2016, namely 7 months x $487 per month = $3,409. This creates arrears of $926.

(2) From January to May 2017 father paid $487 per month. That is the correct amount of his obligation.

(3) From June to December 2017, father paid $334 per month for a total of $2,338. It follows from my reasons that support is payable for that period in the amount of $487 per month for the 6 month period ending November 30, 2017 and $496 for the month of December. The total payable is therefore $3,418. This creates arrears of $1,080.

(4) From January 1, 2018 to October 31, 2018, the father paid $334 per month, for a total of $3,340. It follows from my reasons that he ought to have paid $496 per month, for a total of $4,960. This creates arrears of $1,620.

(5) In addition, there are arrears of section 7 expenses in the amount of $121 per month, for the three months ending October 31, 2018, a total of $363.

(6) The total of the foregoing arrears calculations is $3,989.

[297] The father claims additional credits based on payments that he says he made to the mother between May 2014 and January 2016, as well as grocery purchases that he says he made for the mother's benefit and the benefit of T. during that same period. The mother denies the accuracy of these claimed payments, including the alleged grocery purchases. However, it is not necessary for me to consider whether such payments were made given that the child support postdates those periods, and will run from June 1, 2016 forward.

6: Conclusion

[298] The court makes the following order:

(1) The Respondent father shall have no access to the child, T, born […].

(2) The Applicant mother shall be at liberty to apply for and renew passports, or any other government or government-related documentation for the child, T., without the consent or signature of the Respondent father. The Respondent father's signature is dispensed with for any such document applications.

(3) The Applicant mother may travel outside Canada with T., without the consent of the Respondent father. The need for a signed consent from the Respondent father is dispensed with for any such travel.

(4) Commencing November 1, 2018, the Respondent father shall pay table Guideline support in the amount of $496 per month to the Applicant mother for the support of one child, as well as Guidelines section 7 support in the amount of $121 per month, for a total of $617 per month.

(5) The Respondent father's arrears of child support payable to the Applicant mother are fixed at $3,989 as at October 31, 2018.

(6) The arrears of child support shall be paid by the Respondent father to the Applicant mother no later than December 31, 2018.

(7) Commencing in 2019, and each year thereafter no later than July 1 of each year, the Respondent father shall provide the Applicant mother with full financial disclosure, including his full income tax return for the previous year, together with attachments to that return, as well as his corresponding Notice of Assessment. This disclosure shall continue for so long as the Respondent father is obligated to pay child support to the Applicant mother.

(8) Commencing in 2019, and each year thereafter that the Applicant mother claims an entitlement to Guidelines section 7 child support from the Respondent father, she shall make the same financial disclosure to the Respondent father, as set out in the foregoing subparagraph and by the same date as required by the Respondent father. The Applicant mother shall also provide the Respondent father with proof of payment for the claimed section 7 expenses, and the parties shall thereafter adjust the Respondent father's obligation for payment of these expenses based on the Respondent father's proportional share of the parties' respective incomes. For greater clarity that proportional share which the father is currently required to contribute is 64%.

[299] I wish to reiterate that the court's decision to make a no-access order is not intended to permanently sever the relationship between T. and her father. As I noted earlier in my reasons, there is a pathway that could create an opportunity for that relationship to be rebuilt. However, the heavy lifting to reach the light at the end of that tunnel rests on the father's shoulders.

[300] It is the court's hope that he will recognize the opportunity which is in front of him and that he will gain the necessary insight and motivation to embark on the journey which will possibly enable him, in time, to begin to develop a nurturing relationship with T.

[301] In the event I have made any arithmetical errors I may be spoken to by 14B within 21 days following the date of this judgment.

[302] Should the mother seeks her costs of this proceeding she shall file her written submissions at the trial coordinators' office no later than the later of 21 days following date of this judgment, and the date of any amendments made by this court following a request to reconsider the arithmetical calculations. The father shall have 21 days thereafter to file his responding submissions. No reply submissions will be permitted. Submissions by both parties shall not exceed three pages, double-spaced, exclusive of attachments including any Bill of Costs and authorities relied upon.

[303] Finally, I wish to thank both counsel for their professionalism and their organization in the conduct of this trial.

Released: November 9, 2018

Signed: Justice Robert J. Spence