V.M.W. v. J.Mc-M., 2021 ONCJ 441

ONTARIO COURT OF JUSTICE

DATE: August 24, 2021

COURT FILE No.: D40396/20

BETWEEN:

V. M. W.

Applicant

— AND —

J. Mc-M.

Respondent

Before Justice Roselyn Zisman

Heard on July 20 -23, 2021

Reasons for Judgment released on August 24, 2021

Counsel: Pamila Bhardwaj............................................................................ counsel for the applicant Lauren Israel.............................................................................. counsel for the respondent

Zisman, J.:

Reasons for Decision

1. Introduction

[1] This trial was about what parenting arrangements and child support orders should be made with respect to the parties’ son M. (the child) who is 2 years old.

[2] Although there is some dispute about the exact living arrangements, the child has lived primarily in the care of the respondent (father). The applicant (mother) has parenting time on alternate weekends and one overnight a week.

[3] Both parents have children from other relationship and both the Children's Aid Society of Toronto (CAST) and the Catholic Children’s Aid Society (CCAS) have been involved.

[4] The mother seeks orders that she have sole decision-making responsibility and primary care of the child. She seeks an order that the child reside with the father on 3 out of 4 weekends and generous time during the holidays. She seeks an order for child support based on an imputed income of $37,800.

[5] The father seeks orders that he have sole decision-making responsibility and primary care of the child. He seeks an order that the child reside with the mother on alternate weekends and one overnight during the week and generous holiday access including alternate weeks in the summer. He seeks an order that the mother pay child support based on minimum income.

[6] The trial proceeded by videoconference. The parties relied on their affidavits and provided oral evidence. The mother in addition called a family friend, a CCAS worker and the child’s current doctor as witnesses. The father called a CAS worker and the paternal grandmother as witnesses. Numerous society case notes, [1] police records and medical records were filed.

[7] A focused trial format had been agreed upon with Justice Stanley Sherr who was the case management judge for the December 2020 trial sittings when the trial was originally scheduled to be heard. The trial was adjourned several times as the parties attempted to negotiate a settlement. The trial eventually proceeded before me in the July 2021 trial sittings. Counsel were given additional time for examinations to update the parents’ evidence.

[8] When questioned by the court as to why more of the mother’s supports were not called as witnesses, counsel for the mother submitted that she felt she was constrained by the previously agreed upon trial endorsement form. This is understandable but if counsel prior to trial feel that a previously agreed upon timeframe or number of witnesses need to be changed, this is an issue that opposing counsel should be alerted to and a request should be made either to the case management judge or the trial judge if known.

[9] The issues for the court to determine are:

a) What parenting orders with respect to primary residence, decision-making responsibilities and parenting time are in the child’s best interests?

b) What child support order if any, should either parent pay to the other parent?

2. The parties

2.1 The mother

[10] The mother is 21 years old. The mother deposes that she has had a difficult past in that she was subject to physical and sexual abuse before and after she became a crown ward. While in the care of the society and residing at a group home she was sexually assaulted. The mother deposes that because of her life experiences she has had emotional challenges such as anger and trust issues. Although she had sporadic therapy in the past, she admits that due to her unstable life she could not benefit from it.

[11] When the mother was 17 years old, she gave birth to a daughter K. The CAS assisted the mother with a placement at Rosalie Hall so she would receive parenting education and assistance and other supports.

[12] Simone Hernandez who was the mother’s CAST worker at the time testified. The mother admitted to a conflictual relationship with Ms Hernandez.

[13] Ms Hernandez in her evidence about her involvement with the mother relied on the information from staff at Rosalie Hall. Her notes do not identify any specific workers and related information from staff who reported what other mothers reported about the mother. I put limited weight on this vague hearsay evidence.

[14] However, I accept the evidence of Ms Hernandez’s own observations of the mother and her interactions with the mother. I accept her evidence that the mother did not engage in programming, blamed others for her difficulties at Rosalie Hall and took no responsibilities for her own actions. The mother admits that at the time she was not able to care for K as she did not have housing or a stable lifestyle. K. was placed with the paternal grandmother who subsequently obtained a final custody order of that child.

[15] The mother deposes that she sees K. often and attached a photo of them together. The mother also attached to her affidavit an email from K’s paternal grandmother corroborating that the mother is a good mother who loves her children and has a good relationship with K. However, as this is not a sworn document and there was no explanation as to why K.’s grandmother could not prepare an affidavit, I put no weight on this email. However, the mother was not cross-examined on her current relationship with K. so I accept that despite not having care of this child she still has a relationship with her.

[16] As the mother was a crown ward, she is in receipt of extended care benefits of $1,126.96 monthly. She is currently not working but plans to upgrade her schooling and obtain employment.

[17] As of October 2020, the mother has been able to obtain her own housing that is a short distance from the father’s residence.

[18] As of April 2020, the mother has also completed two parenting courses and provided certificates of completion of those courses. The mother filed a letter confirming that from April 2020 to December 2020, she attended group therapy to address her childhood trauma and her abusive relationships with her various partners. The mother deposes that she is attending individual counselling and in January and February 2021 attended the “Healthy Relationship Workshop” through the CAST.

[19] The mother also obtained her G1 licence in September 2021 and is hoping some day to buy her own car.

2.2 The father

[20] The father is 21 years old. He has always resided with his parents, brother and sister in a 3-bedroom apartment.

[21] The family was involved many years ago with CAS, according to the paternal grandmother, when she suffered from depression due to the death of her own mother and the paternal grandmother then remained involved with the CAS as she found the society very supportive.

[22] The father has another child a daughter A. who is almost 7 years old. The child has been placed in the joint care of the father and her mother under the supervision of the CCAS. The supervision order provides that A. is to reside with the father during the week and with her mother on weekends. However, for the last several months A.’s mother is not seeing her so that A. resides exclusively with the father and his family. It is a term of the supervision order that neither partner of the father or the mother have contact with A., unless approved by the CCAS, to avoid A. being exposed to conflict. At the time the supervision order was signed, the father and mother were still in a relationship albeit, a conflictual relationship with concerns about domestic violence.

[23] The father deposes that he is attending counselling with “Roma” at Rosalie Hall and that they speak every week for up to 2 hours. He also deposes that he was to attend a parenting class, on a wait list for anger management course and attended 9 of 11 sessions for anger management through Tropicana. No corroborative evidence was provided. According to the terms of the supervision order regarding his daughter A., the father has previously been referred to programs for fathers who have been abusive to their partners.

[24] However, the father testified that he had stopped his counselling with “Roma” and “Jason” at Rosalie Hall. He stated that it was his fault that he stopped. But he then backtracked from taking responsibility and stated he stopped because he just needed a break. He then testified that he was reconnecting with them and trying to be seen once or twice a week, but then testified that he was actually in a Dad’s parenting program with Jason. His evidence was contradictory and vague with respect to if he even went to counselling, how often he went to any counselling or when he attended any parenting programs.

[25] Initially the father agreed that the CCAS had been recommending that he attend programs since 2019 but that he did not even start any program until 2021 but then he denied this. However, the evidence and case notes of the CCAS worker and the Statement of Agreed Facts supports the fact that the father was resistant to attending programs and counselling that were recommended for him and for A.

[26] The father struggled to provide any clear answers about what the programs were about or what he learnt. He disagreed that the CCAS had recommended that he take A. for counselling. He testified that he took A. a few times, maybe once tor twice to see “Roma” who he was seeing at Rosalie Hall. His evidence was vague and unclear but he confirmed that A. was not in therapy at the present time.

[27] The father has a criminal record for assault and involvement with the youth criminal justice system. He is currently facing 8 charges of assault against the mother. The father, his brother and his current partner are also facing charges of assault and aggravated assault regarding an attack against the father of his current partner’s child.

[28] The father is currently in receipt of employment insurance and in his sworn affidavit he deposes that he was previously doing landscaping before he was laid off due to Covid and hopes to return to that work.

[29] But in his testimony, he stated that he also has a certificate as a welder and has worked earning about $20.00 per hour. He also testified that he worked some odd jobs for cash. He testified that he is in the process of looking into returning to school to upgrade his welder’s certificate but was vague with respect to any steps taken to either look for work or return to school. None of this evidence was in his affidavit evidence.

[30] Based on his financial statement he earned $29,585.00 in 2020.

3. Relationship between the parties and history of residences

[31] The parties began a relationship in 2018. The relationship was volatile although each parent attributes blame to the other parent. The father admits to inappropriate yelling and screaming but denies any physical abuse allegations.

[32] According to the mother they separated on March 7, 2020 after an alleged domestic assault in the paternal family’s apartment. The police became involved and the mother was required to leave the residence and leave the child with the father.

[33] According to the father they separated around Christmas 2020.

[34] When M. was born in […] 2019, the mother and child went to live with the maternal grandmother. However, that relationship broke down by September 2019 and the mother was asked to leave the home. The mother had nowhere to go and in October 2019 she asked the father to care for the child.

[35] The mother then stayed with a friend James and his mother. The mother lived there for about a month and was forced to leave.

[36] According to the mother, she then moved into the father’s residence and secretly lived there, as in accordance with the supervision order regarding the father’s daughter A. the mother was not permitted to be there. The mother would hide whenever any society worker attended.

[37] The father and paternal grandmother deny this scenario. The paternal grandmother testified that she allowed the mother to remain in their apartment for a few weeks in October 2019 and allowed her to store her belongings in the apartment as she has had nowhere to go. The father does not agree with his mother’s evidence and testified that the mother never lived there and never stored any belongings there.

[38] The father deposes that he would sneak the mother into the apartment after his parents were asleep and she would leave before they woke up.

[39] There is some corroboration of the mother living at the father’s residence from October 2019 to March 2020.

[40] Despite the father stating that their relationship ended in December 2019, the father was sending the mother text messages wanting to reconcile up to March 2020.

[41] The police report of March 7, 2020 indicates that the mother and father were residing together in the paternal family home.

[42] The father deposed that from October 2019 to March 2020, the mother was coming over to see the child almost daily. He was unclear about whether this happened in the apartment or in the lobby and elsewhere.

[43] The mother completed the medical questionnaire regarding the child’s 6- and 9-month check-ups and provided information about the child’s nighttime routine and feeding schedules. She appears to have extensive knowledge of his routines which she could not have had if she was not seeing the child and not staying over.

[44] The mother’s photograph identification card lists her address as the father’s address as does the court order dated June 21, 2019 with respect to her daughter K.

[45] Despite receiving community reports that the mother and father were residing together, in contravention of the supervision order regarding A., no society worker ever made an unannounced visit to that home.

[46] However, despite quite a bit of evidence corroborating the mother residing in the home, it was obvious from the paternal grandmother’s evidence that she vehemently disliked the mother and it is doubtful that she would have allowed the mother to remain in her apartment.

[47] Based on the evidence, I come to the conclusion that although the mother did not reside full-time in the paternal home, she spent a great deal more time there than admitted by the father and probably without the knowledge or agreement of the paternal grandmother. I also find that regardless of where the mother resided, she was much more involved in the care of the child than admitted by the father or the paternal grandmother.

[48] After March 7, 2020, the mother had no stable residence. The mother initially stayed with a friend D.M. who she met through a mutual friend. D.M. used to work as a counsellor with youth and adults. According to the mother, that relationship became controlling and abusive. Her own counsel warned her about the nature of that relationship and D.M.’s motives and suggested she move to a woman’s shelter. Nevertheless, the mother decided to stay but after a physical altercation left that residence with the child who was in her care at that time.

[49] The mother contacted D.B., who is the father of her daughter K. for assistance and he helped her leave D.M.’s residence. D.B. took the mother and child to his mother’s home. But she did not feel comfortable with the mother and child staying there due to her concerns regarding Covid-19 and arranged for her to stay with her sister S.B.

[50] From April 2020 the mother resided in the home of Ms B. in the region of Durham. The child resided with her in that home in accordance with the parenting order.

[51] In May 2020 the mother applied for subsidized housing in Toronto so she would be close to the father’s residence. As of October 2020, she has resided in her own one -bedroom apartment. She spoke of her feeling of accomplishment in being able to obtain her own first residence.

4. Credibility of the parties and their witnesses

[52] The mother was overall a credible witness. She answered questions directly and gave her evidence in a straightforward manner.

[53] Although the mother evaded responsibility for her lack of cooperation and conflict with society workers especially regarding her daughter K., I find this is more of an issue of her immaturity and her lack of trust in the society in view of her own background.

[54] I find that the mother’s evidence that she now has a supportive and good relationship with her own mother has been exaggerated. I have considered the history of that relationship that resulted in the mother being made a crown ward and the fact that the maternal grandmother forced the mother and the child to leave her home in September 2019. I draw an adverse inference from the fact that the maternal grandmother did not testify.

[55] I have also considered that the mother has now made allegations of domestic violence against the father and other partners that were not reported to the police at the time. However, it is not uncommon for women subjected to domestic violence to fail to report such abuse. The mother explained that despite the abuse by the father, she had nowhere else to live and feared CAST would remove the child from her care. If her version of the living arrangements is true, then the mother was also aware that she was helping the father breach the terms of the supervision order.

[56] S.B. was also a credible witness although clearly aligned with the mother and with a limited knowledge of the mother’s past difficulties. Ms B. had never seen the father with the child and all her information about the father was based on information from the mother. I have assessed her evidence in this context.

[57] The father was not a credible witness. He was non-responsive, evasive, contradictory, confused and ill-informed. He did not answer questions directly, gave vague answers and contradicted his own affidavit and the evidence of his mother. He either was avoiding answering questions about both his children or he had limited knowledge about them. I have already referred to some of the concerns with his testimony.

[58] The paternal grandmother was very clearly aligned with her son. Her evidence was exaggerated to the point of being incredulous. For example, she testified that the issue of A. being bullied at school was ignored or badly handled by the school to the point of a child physically assaulting A. in the presence of the principal who just stood there and did nothing.

[59] The paternal grandmother would not admit that there were concerns about both her sons’ involvement in assaultive behaviour and defending the father by stating that he may have assaulted males but never any women. She has a conflictual relationship with the mother of both her grandchildren and her disdain for them both was obvious.

[60] I prefer the evidence of the mother, Ms B. and the evidence and records of the third-party professional witnesses where that evidence contradict the evidence of the father and the paternal grandmother.

[61] The professional witnesses were all credible.

[62] However, I found the CAS worker, Ms Hernandez’s evidence was not balanced. She appeared to minimize concerns about the father’s parenting and focus on the mother’s past history with her daughter and the mother’s previous conflict with society workers.

[63] Ms Hernandez testified about a conversation she had with Ms B. who told her that the mother could be harsh with the child and concerns from an anonymous person about the mother feeding the child with a large spoon, yelling or being harsh with the child. If this was a concern there is no explanation as to what she did or what services she offered to the mother given that the child was spending a significant amount of time in the mother’s care. Ms B. was never cross-examined regarding this evidence as she should have been in accordance with the rule in Browne v. Dunn. I put no weight on this evidence.

[64] By way of further example, although she closed the father’s case with the CAST in September 2020, she testified that she would have no concerns with the child remaining in the care of the father. She provided this evidence without having any knowledge of his circumstances since that time. Whereas she testified that she would have concerns and would have to assess the mother’s circumstances if the child was placed with the mother. This is despite closing the mother’s file in January 2020, having no credible information about the mother’s parenting of this child and not having any information about the mother since then. Further, she did not recognize or add any caveat to her testimony about her inability to make comments or opinions about parenting issues in the context of a domestic proceeding.

5. Court proceedings

[65] After the incident on March 7, 2020, the mother almost immediately began court proceedings.

[66] On March 18, 2020, a temporary without notice order was made placing the child in the care of the mother without access to the father and with a police assistance clause.

[67] A contested motion was heard on April 8, 2020. During that motion, the court was provided with very recent information that the mother was no longer living in the home of D.M. and had just recently moved into the home of Ms B. For oral reasons, the court ordered that child be placed in the custody of the father. The issue of the mother’s access was adjourned with the expectation that the parties would discuss access arrangements in the interim.

[68] On May 1, 2020 the balance of the motion was heard. For oral reasons, the mother was granted access on alternate weekends from Friday at 10:00 a.m. to Sunday at 6:00 p.m. and alternate Wednesdays from 10:00 a.m. to Thursdays at 6:00 p.m. The exchanges were to take place in the lobby of the father’s apartment with exchanges being facilitated by the paternal grandmother and Ms B. The mother’s overnight access was to take place in Ms B.’s home. The child was not to be exposed to any adult conflict.

[69] On May 6, 2020 the mother was ordered to pay costs of $1,800. As of January 1, 2021, the payments of $75.00 per month were to begin. If a payment was more than 30 days late, the full amount was due and payable. It is undisputed that the mother has not made any of these payments.

[70] On September 11, 2020 a temporary without prejudice order was made that the mother pay child support of $51.00 per month subject to adjustment based on her income of $13, 487.

[71] The case was set down for trial numerous times but removed from the trial sittings for ongoing settlement discussions.

[72] The trial proceeded before me on July 20 to 24, 2021.

6. Applicable law

[73] Both counsel made submissions on the basis that the amendments to the Children's Law Reform Act, known as the Moving Ontario Family Law Forward Act, 2020, that came into effect on March 1, 20201, applied to this case despite the fact that the Application was issued prior to that date.

[74] In the recent case of O’Brien and ChuluunBaatar, 2020 ONCA 555 the Ontario Court of Appeal in the context of a decision about mobility confirmed that the new amendments should apply ongoing cases commence prior to the amendments.

[75] The court noted that although the Divorce Act had explicit transition provisions and the CLRA did not it simply made common sense that the amendments would not apply to ongoing cases.

[76] The court stated at paragraph 42 of its decision:

Unlike the Divorce Act, the CLRA does not contain an explicit transition provision governing the amendments. However, in my view, the CLRA amendments must also apply to any ongoing proceedings when they came into force on March 1, 2021. Common sense dictates that the parallel amendments in the Divorce Act, governing parenting orders for children on married parties, and the CLRA, governing parenting orders for children of non-married parties, operate in the same fashion.

[77] I adopt this approach. In this case whether the new amendments or the former criteria in subsections 24 the CLRA were applied the decision would be the same.

[78] Subsection 18(1) of the CLRA, as amended, defines decision-making responsibilities as follows:

“decision-making responsibility” means responsibility for making significant decisions about a child’s well-being, including with respect to,

(a) health,

(b) education,

(c) culture, language, religion and spirituality, and

(d) significant extra-curricular activities;

[79] Subsection 20 of the CLRA further provides as follows:

Equal entitlement to decision-making responsibility

20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to decision-making responsibility with respect to the child.

Rights and responsibilities

(2) A person entitled to decision-making responsibility with respect to a child has the rights and responsibilities of a parent in respect of the child, and must exercise those rights and responsibilities in the best interests of the child.

Authority to act

(3) If more than one person is entitled to decision-making responsibility with respect to a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child.

If parents separate

(4) If the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other, the right of the other to exercise the entitlement to decision-making responsibility with respect to the child, but not the entitlement to parenting time, is suspended until a separation agreement or order provides otherwise.

Parenting time

(5) The entitlement to parenting time with respect to a child includes the right to visit with and be visited by the child, and includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education.

Marriage of child

(6) The entitlement to decision-making responsibility or parenting time with respect to a child terminates on the marriage of the child.

Entitlement subject to agreement or order

(7) Any entitlement to decision-making responsibility or parenting time under this section is subject to alteration by an order of the court or by a separation agreement.

[80] Subsection 24 of the CLRA addresses the best interests of the child. It provides as follows:

Best interests of the child

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

Primary consideration

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

Factors

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

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

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

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

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

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

(l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

Factors relating to family violence

(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor.

Past conduct

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

Allocation of parenting time

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

Application to related orders

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

[81] Subsection 28 of the CLRA sets out the different types of parenting orders that a court can make. The relevant subsections of section 28 for this case are (1), (4), (5), (6), (7) and (8). They provide as follows:

Parenting Orders and Contact Orders

28 (1) The court to which an application is made under section 21,

(a) may by order grant,

(i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2),

(ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or

(iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);

(b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and

(c) may make any additional order the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

Allocation of decision-making responsibility

(4) The court may allocate decision-making responsibility with respect to a child, or any aspect of it, to one or more persons.

Allocation of parenting time

(5) The court may allocate parenting time with respect to a child by way of a schedule.

Parenting time, day-to-day decisions

(6) Unless the court orders otherwise, a person to whom the court allocates parenting time with respect to a child has exclusive authority during that time to make day-to-day decisions affecting the child.

Parenting plan

(7) The court shall include in a parenting order or contact order any written parenting plan submitted by the parties that contains the elements relating to decision-making responsibility, parenting time or contact to which the parties agree, subject to any changes the court may specify if it considers it to be in the best interests of the child to do so.

Right to ask for and receive information

(8) Unless a court orders otherwise, a person to whom decision-making responsibility or parenting time has been granted with respect to a child under a parenting order is entitled to ask for and, subject to any applicable laws, receive information about the child’s well-being, including in relation to the child’s health and education, from,

(a) any other person to whom decision-making responsibility or parenting time has been granted with respect to the child under a parenting order; and

(b) any other person who is likely to have such information.

[82] Subsection 33.1 (2) of the CLRA addresses the importance of the parties protecting children from conflict. It provides as follows:

33. 1 Protection of children from conflict

(2) A party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding.

7. Analysis of the best interests factors

7.1 Initial comments

[83] In this case, both parents have been involved with the child protection agencies. The mother was involved as a child and was made a Crown ward. The mother continued to be involved with the CAST when she gave birth of her daughter K. who was eventually placed in the care of her the paternal grandmother. She was also involved when this child was born. The father is involved with the society regarding his daughter A. who is in his care subject to the supervision of the CCAS.

[84] There was a great deal of oral and documentary evidence regarding the past and present involvement of both parents with the child protection societies.

[85] On behalf of the father, it is submitted that it has been determined by the CAST and CCAS that both the father’s daughter A. and this child are safe and appropriately being cared for by the father.

[86] However, this evidence must be considered in the context of the different legislative purposes of the CYFSA and the CLRA.

[87] Although both the CYFSA and the CLRA require decisions to be made in the best interests of a child, the child protection legislation is risk based with a primary purpose to place children with their parents whenever possible. A court is required to consider the least disruptive course of action and place a child with a parent unless there is a likely risk of harm that cannot be adequately protected by for example, terms of supervision. In other words, it is a balancing between state care and parental care.

[88] With respect to the father’s daughter A. the court has determined that although there is a risk of emotional harm to this child, the least disruptive alternative is to place her in the care of the father and her mother subject to the supervision of the CCAS.

[89] With respect to the child before this court, there is no formal child protection proceeding which implies that there are no child protection concerns that warrant a court’s intervention about this child being in his father’s care. It further implies that there are no concerns about the child spending time in his mother’s care. Pursuant to the current temporary parenting order, the child spends 5 out of 14 days or about 36% of time in the care of his mother.

[90] However, in these proceedings pursuant to the CLRA, the court is required to weigh all factors to determine which parent can best meet the needs of this child, what parent is best able to make appropriate decisions and what parenting time is in the child’s best interests. Therefore, with respect to this child the court is balancing between two parents to determine what parenting arrangement can best meet all of his needs.

7.2. The child’s physical, emotional and psychological safety, security and well-being

[91] The CLRA now provides that in considering a child’s best interests the court shall consider all factors related to the child’s circumstances and in so doing shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

[92] I find that the mother is able to meet the child’s need for physical, emotional and psychological safety as well as ensuring his security and wellbeing for the following reasons:

a) It is the mother who has ensured that the child’s medical needs are addressed despite the fact that she has not been the child’s primary parent;

b) The mother has been able to provide the child with the stability of a home since October 2020 that is baby proofed, that provides him with his own bedroom and that is free from any other safety concerns;

c) The child has been in the care of the mother as of the temporary order of May 1, 2020 for about 36% of the time without any concerns being raised about her ability to meet the child’s needs;

d) The mother has matured since her other child was placed in the care of her paternal grandmother; and

e) The mother has demonstrated that she would be able to meet any future physical, emotional or psychological needs by completing several parenting programs and engaging in counselling to address her own past traumatic background.

[93] I find that the father has not demonstrated that he can meet the child’s physical needs or any future emotional needs or that he can ensure the safety or wellbeing of the child for the following reasons:

a) The father’s home creates safety concerns for the child. The child was sharing a room with the father and his half-sister A. A photo was produced of the father holding a bong while the child was on a blanket close by and the room was in disarray. The father admitted smoking marihuana but not in the presence of the child but the photo clearly shows the child being present. The CCAS expressed concerns about the state of the child’s accommodations;

b) Both the father, his current partner and his brother face serious charges for assault and aggravated assault that resulted in the victim having a fractured skull. The father’s brother also faces charges for an incident where he was arrested for carrying a concealed machete. The father testified his brother and his friend were carrying knives for protection. Although the child was not present for this incident such criminal incidents cause the court to be concerned for the environment that the child may be exposed to and for the child’s safety;

c) The child suffered from an ongoing diaper rash that developed into a fungal infection that was neglected by the father for many months. I accept the mother’s evidence that when the child was with her the rash cleared up but then reappeared when the child was in the father’s care;

d) The father’s apartment has a history of several incidents of bed bug infestations. I accept both the mother’s evidence and the medical notes on this issue. The child had bites that could have been caused by bed bugs or more likely from flea bites. The father alleged that they were from a neighbour’s cats but the paternal family also had cats. The father was advised to have the apartment checked for bed bugs and the cats checked for fleas. Regardless of what kind of bites the child had or how they were contracted, there was no evidence that the father followed up with these recommendations and there was a considerable delay in dealing with this issue;

e) The father did not attend to the child’s medical needs. After not being able to reach the father by phone, the doctor’s office sent a letter to the father’s residence as he needed to schedule the child’s 9-month check-up. The office then began to call the father to remind him of the child’s appointments but he still frequently missed or was late for medical appointments. Dr. Jaeranny was concerned enough that she reported this to the Children's Aid Society along with her concerns about the child’s diaper rash not being treated appropriately;

f) The father was not aware of the child’s doctor, before care was transferred to Dr. Jaeranny, when questioned by the CCAS worker or the name of the dermatologist that the child was referred to and later missed appointments with the pediatric ophthalmologist; and

g) The father has a past history of not obtaining appropriate counselling for his daughter A. He did not follow up with counselling as recommended through the school social worker or through Mental Health T.O. This raises concerns that if the child developed any emotional or psychological problems the father would not obtain the necessary assistance for the child.

7.3 The child’s needs, given the child’s age and stage of development, such as the child’s need for stability

[94] The child is only 2 years old and needs a home that can provide him with stability, structure, predictability and ensures that he develops to the best of his capabilities. He requires a parent who can ensure he attends regularly at daycare and when older at school. He needs a parent who can ensure that his medical and emotional needs are met.

[95] Despite the mother’s previous lack of stable accommodations, she lived with Ms B. for about 7 months from April 2020 and then as of October 2020 she was able to obtain her own accommodations closer to the father’s residence. As the rent is subsidized it is well within her financial means so that her future stability of accommodations can be maintained.

[96] The mother’s evidence regarding the child and his routines indicates a good understanding of his age and stage of development. The child has spent a significant amount of time in the care of his mother. I find that the mother is attuned to the child and can provide him with psychological stability also.

[97] The father has had stable accommodations in that he lives and plans to continue to live with his parents, his brother and sister in their 3-bedoom apartment.

[98] The father recently arranged daycare for the child which will provide some further stability for the child. But the child has already had many absences that the father could not clearly explain. The father did admit that he did not send the child to daycare a few times as it was a nice day. He never explained what he did with the child that could not be done on a weekend. He had no understanding of the need for the child to attend regularly in order to adjust to the routines of the daycare given that there were already absences due to the pandemic.

[99] The mother indicated that she has observed concerning behaviour by the child such as him using swear words, temper tantrums when he does not get his own way, hitting her and putting up his fists and asking if she wants to fight. The mother deposes that she as trying to teach him limits and discipline him using techniques that she learnt in her parenting classes.

[100] The father testified that he had observed some of these behaviours. But he did not provide any evidence as to how he was addressing these concerns.

[101] The father provided no evidence of any routines he has with the child or any evidence that would demonstrate his understanding of the child’s stage of development.

[102] Overall, it was unclear from the father’s evidence how involved he was in the care of the child or how attuned he was to the child’s developmental needs. I find that the father is unable to provide the child with psychological stability.

7.4 The nature and strength of the child’s age and stage of development with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life

[103] The child has a close relationship with his mother.

[104] I do not have sufficient evidence to make any findings regarding his relationship with his half-sibling K. or with the maternal grandmother. I find that he has a close relationship with Ms B. who has been present for over a year when the mother exercised her parenting time.

[105] The child has a close relationship with his father and paternal family especially his grandmother who has been instrumental in his care. I accept the evidence that the child has a close relationship with his half-sister A. who resides in the home and with whom he shares a bedroom.

7.5 Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent

[106] The mother, despite the volatile nature of her relationship with the father, has demonstrated that she is able and willing to support the child’s relationship with the father and his family.

[107] The mother has communicated with the father regarding any issues of concern. For example, when the child accidently bit into a laundry detergent pod the mother sent a text to the paternal grandmother to advise what happened and about the information she received from Poison Control.

[108] When the father contacted the mother to advise that he was taking the child to the hospital because he had an asthma attack, the mother advised him that there was a prescription at the pharmacy that he could fill. Another time, the mother took an Uber to deliver medication to the father.

[109] While it is true that the mother took photos of the child’s body to show his insect bites, rashes, dried feces and burn marks on the child, I find that she did not do this maliciously. Rather, she did this to provide proof to the doctor and Ms Hernandez that she had legitimate concerns about the care the father and the paternal grandmother were providing to the child.

[110] The father and the paternal grandmother are highly critical, disrespectful and distrustful of the mother and have not been willing to communicate with her. They minimize her role in the child’s life;

[111] The father did not advise or consult with the mother when he enrolled in daycare or pierced the child’s ears.

[112] The mother was not advised when the father was in jail for 2 weeks or offered more parenting time.

[113] The mother was not advised about any injuries the child had while in the father’s care. For example, when the mother noted a burn mark on the child. The father in his evidence initially denied any such marks but then said they occurred while in the mother’s care. On another occasion, the mother had to speak to the daycare to obtain an explanation of what appeared to be another burn mark on the child.

[114] The paternal grandmother did not respond to the mother’s request for parenting time on Mother’s Day.

[115] The father would not agree to the mother exercising overnight parenting time at her home once she moved. Although the mother sought unsupervised time, the father did not offer any compromise such as overnight time at the mother’s residence as long as Ms B. was present.

[116] The mother has been required to communicate to the father through the paternal grandmother due to the father’s criminal release terms. However, according to the father’s evidence he was able to vary his release terms to permit him to have contact with his current partner, who is also charged criminally, but he did not explain why he would not have also varied his terms to permit communication with the mother. The father did not provide the court with proof of this bail variation and it is possible that he simply gave this evidence to explain a photo of himself and his partner that would be a breach of his release terms.

[117] The paternal grandmother also has a history of not being willing to communicate or facilitate parenting time with the mother of the father’s other child.

[118] The father has also told his daughter not to communicate with the CCAS worker. This raises a concern that he would also tell the child, when he is older, not to tell the mother about any issues that arise in the father’s home.

[119] At the conclusion of the trial, counsel for the father advised that the father was prepared to agree that the mother’s parenting time can take place at her residence without the need for Ms B. to be present. This is an encouraging step by the father recognizing that the mother is capable of caring for the child.

[120] The court was also asked to endorse that it would be in the child’s best interests if the father’s release terms were varied to permit direct communication in writing between the mother and the father. This is another positive step by the father that will improve the ability of the parties to communicate.

7.6 The history of the care of the child

[121] Although the father has had primary care of the child since at least March 7, 2020 this is only one factor for the court to consider.

[122] The mother had the child in her care from his birth on […], 2019 until October 2019 when having lost her housing she placed him in the father’s care. These months were chaotic for the child due to the several moves by the mother.

[123] Ms Hernandez testified that based on her observations and those of the high risk nurse that visited the mother between June and October 2019, there were no concerns about the mother’s care of the child. Based on the evidence of Ms Hernandez, despite the mother being a former crown ward, limited assistance was offered to the mother to assist her in obtaining housing and as a result the child was subsequently placed with the father.

[124] Between October 2019 and March 2020, although the child remained in the father’s care the mother was very involved. Except for a few weeks in March and April 2020, when the child was with the mother, the child then remained in the care of the father. But as of May 1, 2020 the child has spent a great deal of time with the mother.

[125] In considering the “History of care” of a child can and should encompass more than where the child physically resides. Care includes meeting the needs of a child. The mother is the parent who has followed up and been instrumental in ensuring that the child receives the medical care he needs.

[126] It is uncontradicted that both the CAS and CCAS had no protection concerns regarding the child being in the home of the father or regarding his ability to meet the needs of the child. However, there were concerns conveyed by the child’s doctor to the society, about the medical care being provided to the child by his father.

[127] The father is subject to a supervision order with respect to his daughter A. The CCAS was prepared to close their file as the father was not cooperating but the court did not agree to discontinue their involvement which suggests that there are ongoing protection concerns.

[128] Counsel for the father relies on the temporary status quo as being a strong factor in the father’s favour to obtaining a final order.

[129] I have considered this factor but do not find the fact that the child has resided primarily in the care of his father to be determinative.

7.7 The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained

[130] The child is too young to express any views and preferences.

[131] Although there has been some conflict during transitions, there was no evidence that the child is having any difficulties with the transitions between homes.

[132] I draw the logical inference that the child enjoys spending time with both his parents.

7.8 The child’s views cultural, linguistic religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage

[133] There was little evidence presented on this issue.

[134] The mother while living with Ms B. attended religious services and became connected with a faith based support group and counselling. She did not indicate if she intended to take the child to religious services with this church.

[135] The father did not provide any evidence on this issue. But as the child is of mixed race it would be important for him to be learn about his heritage.

7.9 Any plans for the child

[136] Both parents agree that regardless of the parenting arrangements that the child should remain in his present daycare.

[137] The mother testified that although the paternal grandmother arranged the child’s current paediatrician, she was very pleased with the Dr. Jaeranny’s care and is agreeable to her remaining the child’s doctor.

[138] The father did not comment about Dr. Jaeranny remaining the child‘s paediatrician but in submissions father’s counsel agreed that this would be appropriate. I intend to make this a part of my order as I do have concerns that given Dr. Jaeranny voicing her concerns to the CAS and her testimony that there is some risk that the father may wish to change the child’s doctor.

[139] The father’s plan regarding parenting time for the mother is a continuation of the status quo but as the child is now in daycare, the mother’s weekend and mid-week parenting time would be reduced. Other than providing a draft order with detailed parenting time he did not offer any written or oral evidence regarding any other details of his plan.

[140] With respect to decision-making responsibilities, the father also seeks the sole authority to do so. Other than choosing the daycare, it is not clear how involved the father was in making decisions about the child. He had no knowledge of the child’s previous doctor and it was his mother who made arrangement for the child to have another doctor.

[141] The mother’s plan is for the child to reside full-time with her and for her to have sole decision-making responsibilities. The mother provided evidence regarding how she spends time with the child and what she teaches him.

[142] With respect to parenting time, she had proposed that the father have 3 out of 4 week-ends, one midweek visit on the weekend he does not see the child and a sharing of the holidays.

[143] Both parties have family supports although the nature and consistency of the mother’s supports are not known.

[144] Both parties are involved in new relationships but do not reside with their current partners. Neither party called their new partners as witnesses.

7.10 The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child.

[145] The mother has demonstrated that she is able and willing to meet the physical and emotional needs of the child.

[146] It is the mother who has been diligent and pro-active in obtaining medical care and following medical advice regarding the child’s ongoing diaper rash. The mother has been the parent responsible for filling in the medical questionnaires regarding the child for his regularly scheduled appointments.

[147] It is the mother who raised concerns about the child’s recent behavioural issues.

[148] The mother has demonstrated that she is the more responsible parent in regard to meeting the child’s medical needs and being attuned to any potential behavioural issues.

[149] I have serious concerns about the father’s ability to meet the child’s medical needs. The child had a diaper rash from at least January 2020. Dr. Jaeranny was concerned enough to call the CAS to advise Ms Hernandez about the steps the father should be following. Ms Hernandez indicated that the father “was trying his best.”

[150] In July 2020, Dr. Jaeranny called the CAS again as the rash persisted and again she wanted to reinforce that the father follow the recommendations as it appeared the rash cleared up while the child was in the mother’s care and then reappeared.

[151] By August 2020, Dr. Jaeranny’s concern increased as the rash had spread to the child’s legs and the tip of his penis. The rash became fungal which was not typical. Dr. Jaeranny again reported this to the CAS.

[152] Dr. Jaeranny testified that objectively she had concerns about the length of time that the child’s diaper rash had persisted if it had been properly treated and she conveyed her concerns to Ms. Hernandez. Dr. Jaeranny found the mother responsive and she kept her appointments.

[153] The father missed or was late for the child’s medical appointments. This was a chronic issue and necessitated the doctor’s office arranging to call the father to remind him of the appointment. Even when this was done, the father still missed appointments.

[154] For example, on August 6, 2020 the father failed to attend for an appointment that had been arranged the day before as he had missed the appointment for the previous week. This was despite that the child’s rash had progressed seriously. When reached by telephone, the father asked Dr. Jaeranny for a letter saying that there are no concerns. When Dr. Jaeranny declined to write such a letter and tried to speak to him about the seriousness of the rash, the father stated , “are you joking me, really”, “ this is ridiculous” and then handed the phone to the paternal grandmother. The father had to be warned to be respectful to the doctor.

[155] In January 2021, Dr. Jaeranny made a referral for an appointment with an ophthalmologist. At the virtual appointment in April 20201, the child was not present. The father did not explain the child’s absence. Another appointment had to be scheduled. As the doctor’s office was unable to contact the father, the office contacted the mother who has now rescheduled the appointment in August.

[156] The mother reported a burn on the child’s leg in February 2021 when child returned to her care from the father. Based on the photos taken by the mother, Dr. Jaeranny testified that it appeared to be a pattern of an object. The father did not seek medical attention or advise the mother about how this happened. The father offered various explanations as to how this could have happened but then denied it happened while the child was in his care. I accept the mother’s evidence that this happened while the child was in the care of the father.

[157] The evidence was not clear as to whether or not the child still suffers from asthma. The father agreed that up until he was 1 year old this was an issue. When he had an attack in his father’s care, the father did not have his puffer as he had not filled the prescription. The father testified that the child no longer suffers from asthma. But as recently as April 2021 the doctor prescribed puffers for him.

[158] Based on the father’s care of his daughter A. I find that there are concerns that the father would not be able to meet this child’s emotional or educational needs. I find that despite recommendations that he obtain counselling for his daughter since 2019, there was no evidence that he followed this recommendation. The father provided vague testimony that he took her 2 or 3 times but provided no proof. I do not find this evidence credible as Mr. Amin testified about his attempts to encourage the father to obtain counselling for himself and his daughter.

[159] A. was not in school for almost 3 months from September to November 2020. The father’s explanation was that there were ongoing issues with on-line schooling and the technology. But according to the evidence of Mr. Amin the school was unable to contact the father and reported their concerns to the society. The father did not provide any evidence of what A did during those 3 months or what he did to help her keep up with her schoolwork.

[160] I also have concerns as to how the father handled the issue of A. being bullied at school. When asked about the child’s absences when school was in-person, the father stated that he would not force her to go. But the school reported that A. loved school.

[161] Both and the father and the paternal grandmother blamed Mr. Amin for not helping them with an ongoing issue of bullying. But Mr. Amin testified the society expects parents to handle these issues and he offered to assist. He testified that the father and the paternal grandmother arranged a meeting with the school and that they handled the bullying issue appropriately. But then there were concerns that A. was not attending school.

[162] Based on the paternal grandmother’s evidence on this issue it appeared that bullying was an ongoing issue, but the father testified it was resolved. When asked why the child was not removed from the school, if the father and the paternal grandmother felt the school was not handling the bullying issue appropriately, the father stated that A. liked going to that school as her friends were there.

[163] I find that the complaints made by the father and the paternal grandmother against Mr. Amin and the school were not credible and were just a means of trying to divert attention from the real issue namely that A. was not attending school.

7.11 The ability and willingness of each parent in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child

[164] The mother has shown an ability to communicate with the father regarding the child and a willingness to continue to do so.

[165] The father has not shown the same willingness to communicate or co-operate with the mother. The father has not kept the mother informed of any issues regarding the child such as injuries that occurred in his home. He did not consult with the mother about the choice of a daycare or medical doctor.

[166] I have concerns that the paternal grandmother would also not communicate or co-operate with the mother on matters affecting the child. Until the father’s release terms are varied or his criminal charges resolved, the mother is required to communicate through the paternal grandmother. The paternal grandmother has already shown that she does not feel it is necessary to keep the mother informed of any issues regarding the child.

7.12 Family Violence and outstanding criminal proceedings

[167] The amendments to the CLRA have expanded the definition of family violence and increased its importance in assessing the best interests of a child. Family violence is often hard to prove as it takes place in private generally with no witnesses. There are many reasons that such violence is not reported to the police or other authorities especially when it does not involve physical violence but consists of coercive and controlling behaviour and involves verbal and emotional abuse.

[168] The mother has alleged that the father was verbally and emotionally abusive and controlling. She alleges that he made threats to harm her daughter and herself and that this escalated to incidents of physical violence. The mother alleges that the paternal grandmother and the maternal aunt also were physically abusive to her.

[169] The police were called to the apartment on several occasions. The mother explained that she was too afraid to report the abuse as she was afraid of the father, had nowhere else to go and was afraid of losing the child. When the police asked about her bruises and injuries, the mother said that she was anemic and bruised easily. The mother lied to everyone about the abuse. She was too afraid to go to a woman’s shelter due to her past experiences and continued to reside with the father and the paternal family.

[170] The mother did however take photos of her injuries including the incident on March 7, 2019 that resulted in her suffering a head injury that required 6 stitches.

[171] After the March 7, 2019 incident that resulted in the mother being told to leave the paternal family’s apartment, the mother decided to report her allegations of abuse to the police and provided them with her photos. The mother deposes that the police were able to match up past police attendances with the photos she provided them. The father is facing 8 counts of assault with respect to these incidents.

[172] The father testified that he was instructed by his criminal counsel not to answer any questions about these charges. The father testified that he denied the charges. Regarding the March 7 th incident he stated that it did not “exactly happen” as reported by the mother but then stated it did not happen at all.

[173] The father did not deny the police report that he told the officers that he and the mother had been living on and off in the paternal family’s apartment since the child was born. He did not deny that he would not let the mother leave with the child as he had a custody order. But the court order he produced to the police related to his daughter A. The father could have addressed these details as they have nothing to do with his outstanding offence but chose to simply make no comment.

[174] However, given the undisputed and detailed evidence of the mother, I find on a balance of probabilities that the father was emotionally, verbally and physically abusive to the mother.

[175] The father testified that he had almost completed an anger management program prior to the pandemic but in September 2020, he was charged with serious criminal offences of assault and aggravated assault.

[176] The father has a history of prior involvement with the police. On April 19, 2019 the father was cautioned about allegedly making harassing and threatening calls to a former friend and his girlfriend.

[177] There is also evidence of disputes between the mother and the paternal family. On August 13, 2019 the police attended the home. The mother reported that the father and his family were threatening her and not letting her leave with her son. At the time the mother was living with her mother but spending time at the paternal family’s residence. The paternal grandmother would initially not permit the police to enter the residence. The mother did not report any threats or concerns with the father but stated that the paternal family treats her with disrespect. The father confirmed that the issue was between the mother and the paternal grandmother.

[178] There were further incidents on August 22 and September 21, 2019 where the police were called due to arguments between the parties. With respect to the September 22 nd incident there were numerous community reports due to the very heated argument between the parents while their child was present. The parties told the police they were arguing about their relationship and they were trying to find a place to live together.

[179] On July 13, 2020 the father, his brother and his friend were on a bus and noticed a female passenger being harassed by a male. The three of them challenged the male and an argument ensued and escalated to the point that one of the males pulled his shirt up and pointed to the handle of a knife. The police were called as a passenger thought it was a gun. The father’s friend was charged with possession of a concealed weapon a large 9 inch knife and his brother with possession of a14 inch machete and disobeying a prior court order. The father was not charged but admitted to a verbal altercation.

[180] On September 18, 2020 the father, his brother and his current girlfriend were charged with assaulting the father of his girlfriend’s child. The father and his brother are alleged to have stomped on the victim while the father’s girlfriend just stood by and watched. Once the assault ended, the father, his girlfriend and his brother followed the victim into the apartment lobby and the father’s brother punched the victim in the face and head multiple times.

[181] A further assault against the victim by the father’s girlfriend occurred on the street where she punched and swung at the victim multiple times. The father’s girlfriend was charged with breaching a term of a probation order that she was subject to regarding a prior assault. The father’s brother, who is a youth, was also charged with breaching a common law peace bond.

[182] The victim suffered a fractured skull and a cut to his upper eye and required stitches and surgery. The father and his brother are charged with assault and aggravated assault and the father’s girlfriend is charged with assault.

[183] I outline this criminal history as I find it is relevant to the ability of the father to ensure that his son is safe. Despite the father’s evidence that he almost completed an anger management course prior to the pandemic and previously attended a group for men involved in partner abuse, he has subsequently been involved in incidents of physical and verbal disputes that indicate that he is unable to control his temper.

[184] I am also concerned that the father’s brother is involved in the same type of criminal activity as it is the father’s plan to continue to reside in the paternal grandparents’ apartment.

[185] I have concerns that the paternal grandmother is not a protective presence as she does not consider that her sons’ involvement in criminal activity is a serious issue as the assaults were only against males not women. She testified that her younger son was not involved with the youth criminal justice system but this is not accurate based on the police reports. She did not advise the mother when the father was in jail. The paternal grandmother focused on the mother’s anger and lack of control but had no concerns regarding both her sons facing serious criminal charges.

[186] The mother does not have a criminal record although in 2018 she and the father entered into mutual common peace bonds.

[187] The mother does have a history of being involved with multiple abusive partners and residing in abusive and conflictual living arrangements. Therefore, there is a risk that the child could be exposed to family violence. However, the mother now has her own accommodations. The mother has also engaged in counselling to deal with her past. The mother testified that her counselling has focused on learning how to learn to see herself a survivor and not a victim.

7.13 Protection of the child from conflict

[188] Since March 2020, although there have been some incidents of concern during exchanges between the adults, the child has not been exposed to any conflict between the parents or between the mother and the paternal grandmother.

[189] As the child is now in daycare, most exchanges can be done at the daycare and this will also eliminate the child being exposed to any ongoing conflict.

[190] Much evidence was presented about the mother’s past conflict with the society workers and with the staff and other mothers when she resided at Rosalie Hall with her daughter. I agree with the submissions of the father’s counsel that the mother has minimized the conflict, did not take responsibility or show insight into the impact on her daughter. However, the mother admitted that she was not able at that time to care for her daughter and has attempted to now understand and deal with her past trauma.

[191] The mother has also had conflict with her own mother. However, her mother was assisting her with the exchanges when Ms B. withdrew due to her fear of the father and his family.

[192] I do not find that any of these past conflicts impact on her ability to protect this child from conflict.

[193] The father and the paternal grandmother have had conflict with the CCAS worker Mr. Amin. I find Mr. Amin’s evidence credible that both the father and the paternal grandmother did not cooperate and were disrespectful to him. For example, they accused him of being a “shitty worker”, who “does not know what he is doing.” He was called “an animal,” “stupid” and “dumb.” The paternal grandmother has also had conflict with her granddaughter’s school and the father has had conflict with the child’s doctor. I find that this conflict has impacted the father’s daughter.

[194] The father and the paternal grandmother have had conflict with the mothers of both of the children. CCAS has verified that A. was at risk of emotional harm due to her exposure to historical conflict between the father and his partners.

[195] I have concerns that the attitude of the paternal grandmother and the father when they do not agree with authorities such as society workers, school authorities and medical staff results in conflict that may impact this child.

7.14 Conclusion and findings

[196] There are risks with respect to both these parents. As one worker stated, the father is “a work in progress” I find this applies to both parents.

[197] However, in examining all of the best interests factors, I find that it is in the child’s best interests to have his primary residence with the mother. She has taken positive steps to become a responsible adult. In particular, she has shown responsibility in dealing with the child’s medical issues.

[198] I find that the father has deferred to his mother to make most decisions about the child. The father has minimal knowledge about the child and he had demonstrated a lack of responsibility in dealing with the child’s medical issues. His inability to attend medical appointments or be on time for such appointments may place the child’s health in jeopardy. As the father is currently not working, no credible explanation was provided for his chronic inability to attend for medical appointments and no credible explanation for his neglect in following recommended treatment or in meeting his child’s basic medical needs

[199] I find that the mother should be the parent to make decisions about the child’s health, education and in the future about his extra-curricular activities. At present, the child will remain in his current daycare. The mother will have to make arrangements to transfer the daycare subsidy that the father receives to herself. But I do not expect that this should affect the child’s placement at that daycare. If it does, then the mother will be permitted to move the daycare.

[200] The child shall continue to attend with Dr. Jaeranny as his paediatrician as long as she is able and willing to continue to be his doctor. If this changes, the mother will be permitted to choose a new doctor.

[201] Both parents should be permitted to make decisions about the child’s cultural, religious and spiritual upbringing when he is in their respective care.

[202] The mother should consult with the father with respect to any major decisions as it is important that he be involved in the child’s life. The mother shall consider his input but if she does not agree with his position then she shall be free to make the final decision.

[203] The mother should be able to obtain government documents without obtaining the father’s prior consent. Given the father’s current release terms she cannot communicate with him directly and it is necessary for her to go through a third party. Even if the father’s release terms are changed, I do not believe the father would respond in a timely fashion to any such requests by the mother.

[204] With respect to travel, both parties should be able to travel without obtaining the other party’s consent as long as they provide the other parent with a full itinerary for any trip and provide contact information.

[205] The father should be permitted to obtain information directly from the child’s school, doctors and any other service providers as it is important that he remain involved in the child’s life.

8. Parenting time

8.1 Applicable legal principles

[206] The test for determining parenting time is what order is in a child’s best interest. The court is required to consider the best interests factors set out in section 24 (1) of the CLRA and any other relevant factors.

[207] Section 24 (6) of the CLRA provides that in allocating parenting time, the court should give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

[208] It is in a child’s best interests to have a loving relationship with both parents unless there is a danger to the child’s physical and emotional well-being.

8.2 Analysis

[209] I find that it is in the child’s best interests to have his primary residence in the care of the mother.

[210] To their credit both parents propose parenting plans that offer the other parent significant time with the child. This will ensure that each parent continues to remain an important part of the child’s life. The child will also be able to maintain his relationships with his extended family.

[211] I find that the mother’s proposal for the father to spend 3 out of 4 weekends provides a necessary balance of ensuring the father spends quality time with the child but also provides him with the stability during the week by residing with his mother. This plan will also provide the child with leisure time to spend with his sibling A.

[212] I find that there should be no weekday parenting time with the father as I have no confidence that he will be able to ensure the child attends daycare or in the future school on time. It is important that the child have a routine and schedule during the week including bedtimes.

[213] The father provided no evidence on these issues. In view of the issues with his daughter attending school and the evidence regarding the days this child has already missed daycare, I have no confidence in the father’s ability to adhere to a consistent schedule. Although this will then result in the child having to be dropped off on Sundays rather than a return to daycare on Mondays, I find that this arrangement is in the child’s best interests at this time.

[214] The father admitted that if he is convicted of the outstanding criminal offences, he will be facing jail. If the father is incarcerated, the mother should be advised and the child remain in her care unless she agrees otherwise.

[215] Both parents propose a sharing of the holidays.

[216] With respect to summer although the father offered a week on and week off schedule, the child would still need to attend daycare in order to maintain the daycare subsidy. I find that each parent should be able to take the child out of daycare for one week in the summer. This will allow some vacation time for each parent but should not jeopardize any daycare subsidy. However, if such an absence does jeopardize the daycare subsidy, then the child will have to attend daycare even during the parents’ vacation week. Once the child starts school, the parties should be able to agree on other summer plans.

9. Other parenting orders

[217] It is important for the parties to be able to communicate directly with each other. There will therefore be an order that the parties communicate in writing with each other by Our Family Wizard, AppClose or other similar communication app about the child. This provision is contingent on the father obtaining a variation of his current release terms. Until this is done any necessary communication will be through the paternal grandmother.

[218] As it is important to ensure that the child is not exposed to any conflict, there will be conduct terms that the parties not expose the child to any negative or disparaging comments about the other parent or their family members.

10. Child Support

[219] Neither party spent much time on the issue of child support.

[220] There is a temporary without prejudice order that the mother pay child support of $51.00 per month. There was no evidence led as to why the mother should not be required to pay this amount. The mother testified that she made a big mistake in not paying child support.

[221] As this order will now place the child in the primary care of the mother, the order of May 1, 2021 is terminated. However, the mother owes $702.00 in child support she should have paid from April 1, 2020 to August 1, 2021.

[222] The father’s financial statement indicates he earned $29,585 in 2020.

[223] Counsel for mother submitted that the court should impute income of $37,860 based on the father’s financial statement. But this amount included the funds the father receives for the child tax credit. Counsel for the mother also submitted that the court should still impute $37,860 to the father based on his skills, experience and admission of earning some cash income.

[224] The father is currently in receipt of employment insurance.

[225] In view of the current flux in the economy, I find that it may take him some time for the father to find new employment However, he provided no evidence of any genuine attempts to find employment and he has not made any concrete plans to return to school. He admitted he has worked some odd jobs for cash.

[226] Based on this evidence, I find that the father should be able to earn a minimum of $29,585 and that income should be imputed to him. His child support obligation will be $252.00 per month.

[227] The father will be required to notify the mother if he obtains employment.

[228] The mother owes the father $702 as her child support obligation. In order to provide the father with some time to readjust his finances and ensure that the mother meets her past obligation to the father, the father’s child support obligation will commence on December 1, 2021.

[229] As the mother should now be able to obtain the child tax credit for the child, I find that she should be able to meet the child’s needs without the father’s child support contribution for the next few months.

11. Order

[230] There shall be a final order as follows:

Decision Making

1. The child, M.F, M.-W. born […], 2019 ("the child") shall primarily reside with the Applicant.

2. Both parties may make decisions about the child’s cultural, language, religion and spiritual training as they see fit when the child is in their care.

3. The Applicant shall otherwise have sole decision-making responsibility including all decisions with respect to the child’s health, education and significant extra-curricular activities.

4. The Applicant shall advise the Respondent of any contemplated significant decision regarding the child in writing. Within 14 days after receiving this information the Respondent may provide his written response with his views. If the parties do not agree, or if the Respondent does not respond within 14 days, the Applicant shall make the final decision.

5. The Applicant shall advise the Respondent in writing of all appointments with any teacher, doctor or other service providers for the child. The Applicant shall keep the Respondent updated with their names and contact information. The Respondent may attend any such appointments.

6. The parties shall immediately advise each other by phone, email, or text if the child has a medical emergency while in their care. They shall advise the other parent of the nature of the emergency, where the child is being treated and the name of the treating doctor.

7. The Respondent shall not make any major changes to the child’s physical appearances such as a major change in hair style, tattoos, piercings etc. unless previously agreed upon by the parties in writing.

8. The Respondent shall have the right to obtain information directly from the child’s teachers, doctors or other service providers pursuant to section 20 (5) of the Children's Law Reform Act. The Applicant shall execute any authorization or consents to permit the Respondent to do this.

9. Neither party shall speak ill of the other party or allow anyone else to do to the child or within in earshot of the child.

10. The Applicant may apply for government issued identity documents for the child including his passport, renewal of passport, renewal of health card and social insurance number without the written consent or signature of the Respondent. The Applicant shall provide copies of all identity documents to the Respondent. The Respondent shall immediately provide to the Applicant any of the child’s original government identity documents he has in his possession.

Parenting Time

11. The Respondent shall have parenting time for three consecutive weekends each month from Friday after daycare or school to Sundays at 7:00 p.m.

12. If the Respondent’s weekend falls on a Friday PA day, or holiday Monday, his parenting time shall commence after school on Thursday before a PA day or extend to include the holiday Monday.

13. On Sundays or when the child is not in daycare or school, access exchanges shall be conducted at the Kennedy subway station next to the main ticket booth or any other location as agreed upon by the parties in writing. If the Respondent is unable to conduct the exchange due to his criminal conditions, a third-party agent arranged by the Respondent will conduct the exchanges.

Holiday Schedule – the holiday schedule shall apply regardless of the regular schedule

14. March Break – Once the child commences school and the child is no longer attending daycare, the March break shall rotate such that each parent will get the first half and second half in alternate years. In the first year that school commences, the Applicant shall have the child in the first half of the break from Friday to Wednesday at noon and the Respondent shall have the child in the second half of the break from Wednesday at noon to Sunday at 7:00 p.m.

15. Christmas – The following schedule shall be followed by the parties unless otherwise agreed upon in writing when the child commences school:

    a) The child shall spend equal time with the parents during the winter school break. The child shall spend the first half of the winter school break with the Applicant and second half with the Respondent in even numbered years. The child shall spend the first half of the winter school break with the Respondent and the second half with the Applicant in odd numbered years. This is subject to the division of Christmas Eve and Christmas Day set out below.

    b) Christmas Eve/Day shall alternate between the parties. In odd years, the Respondent shall have parenting time from December 24 at 12:00 pm to December 25 at 12:00 pm and the Applicant shall have parenting time from December 25 at 12:00 pm to December 26 at 12:00 pm. In even years the schedule will reverse

16. Mother’s Day – If according to the usual routine, the child is not in the Applicant’s care on Mother’s Day, the Respondent will return him to her on Mother’s Day at 12:00 pm.

17. Father’s Day – if according to the usual routine the child is not in the Respondent’s care on Father’s Day, he may pick him up on Father’s Day at 12:00 pm and return him Sunday at 7:00 p.m.

18. Summer Vacation – while the child is attending daycare, either party may take one week of vacation with the child. The vacation schedules shall be arranged by May 1 each year. The Applicant will choose her week first in even years and the Respondent will choose his week first in odd years. As long as this arraignment does not jeopardize any daycare subsidy the child will not be required to attend daycare during each parent’s vacation week. Once the child is in school and no longer attending daycare, each parent shall be entitled to 2 weeks consecutive or non-consecutive of vacation time with the child. The same notification requirements will apply.

19. The child’s Birthday – The child shall remain with the parent on his birthday according to the regular schedule. The parent in whose care the child is on that day shall arrange a video call to the other parent at 5:00 pm or any other convenient time as agreed upon in writing.

20. Thanksgiving weekend- the child shall spend the entire Thanksgiving weekend with the Applicant in even numbered years and with the Respondent in odd numbered years. The Respondent shall return the child to the Applicant when the child is in his care on Thanksgiving Monday at 7:00 pm.

21. Easter – the child shall spend the entire Easter holiday with the Applicant in even numbered years and with the Respondent in odd numbered years. When the child is with the father for the Easter holiday, he shall return him on Easter Mondays at 7:00 pm.

Travel

22. Once the child commences school, each party shall be entitled travel with the child during the summer months for vacation purposes for a period up to two weeks without the written consent of the other party. While the child is attending daycare, the party wishing to travel shall ensure that the daycare subsidy is not jeopardized.

23. The travelling party shall provide at least one-month notice of any plan of travel. The travelling party shall provide an itinerary of travel at least 10 days prior to travel including dates of travel, airline, flight numbers and contact information of destination.

24. The Applicant shall keep possession of the child’s passport. If the Respondent is travelling with the child, the Applicant shall provide the passport to the Respondent, at least five days prior to travel. The Respondent shall return the passport to the Applicant immediately upon the return from the trip at the first access exchange.

Communication

25. The parties shall communicate with each other about the child using Our Family Wizard, AppClose or such other communication app. Until the Respondent’s criminal terms are varied such communication can occur between the Applicant and the paternal grandmother.

26. All communication between the parties shall be respectful and child focused. Neither party will criticize, demean or make disparaging comments about the other parent in the child’s presence.

27. The parties shall immediately advise each other of any change in their contact information including their telephone number or email address.

28. The parties shall advise each other at least 30 days in advance of any change in their address. The notice shall include the moving date and the new address.

29. Neither party shall video or audio tape the parenting exchanges.

30. Both parents will follow government of Covid-19 health protocols as set out below and as updated there:

    a. https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/prevention-risks.html

    b. https://www.ontario.ca/page/2019-novel-coronavirus#section-7

    c. https://www.toronto.ca/home/covid-19/

Child support

31. The temporary without prejudice order of May 1, 2020 that required the Applicant to pay child support to the Respondent is set aside.

32. The Respondent shall pay child support of $252.00 per month to the Applicant based on an imputed income of $29,585 in accordance with the child support guidelines. Such child support shall commence on December 1. 2021.

33. The Respondent shall notify the Applicant withing 14 days of obtaining full or part-time employment and provide proof of his income. The Respondent‘s child support obligation shall be readjusted but shall not be reduced if his income is less than $29,585.

34. Support Deduction Order to issue.

If the parties are unable to settle the issues of costs, the Applicant shall serve and file her written cost submissions not to exceed 3 pages, not including any offer to settle and a bill of costs within 14 days and the Respondent shall serve and file his response within 14 days thereafter on the same terms.

Released: August 24, 2021 Signed: Justice Roselyn Zisman

[1] The CAST and CCAS records and court orders from the child protection proceedings that were made exhibits on this trial have been sealed.

[2] 2020 ONCA 555 at paras. 40-42