Court File and Parties

ONTARIO COURT OF JUSTICE DATE: October 24, 2022 COURT FILE No.: FO-21-41314

BETWEEN:

S. W.-S. Applicant

— AND —

R. S. Respondent

Before Justice Paulseth

Heard on October 17- 19, 2022 Reasons for Judgment released on October 24, 2022

Counsel: Pamila Bhardwaj, counsel for the applicant Mikesh Patel, counsel for the respondent

Paulseth, J.:

Overview

[1] The parties were married in April, 2012 and separated in February, 2020. They have two children: a boy born on […], 2013 and a girl born on […], 2017. The Applicant/mother is 34 years old and the Respondent/father is 37 years old on November 5, 2022.

[2] At the time of the separation, father was charged with the criminal offence of uttering threats against mother.

[3] On March 30, 2021, mother issued her application seeking sole decision-making responsibility for the children and child support.

[4] On April 23, 2021, father issued his Answer/Claim, seeking sole decision-making and parenting time.

[5] On May 3, 2021, Justice Spence made temporary orders on consent as follows: (1) Primary residence of the children with mother; (2) Father to have parenting time on alternate weekends from Friday until Sunday as well as Tuesday overnights; all exchanges through the school, daycare or a third party; and (3) Father to pay child support of $363 a month on his self proclaimed income of $24,000 a year for 2020, commencing May 1, 2021.

[6] On September 2, 2021, father advised the court that he was not vaccinated and he was refusing to pay child support. Mother said that she was fully vaccinated.

[7] On December 1, 2021 the court heard a motion to vary the temporary parenting time with father as a result of his unvaccinated status. On December 9, 2021, Justice Sherr made changes to the temporary orders: (1) Father’s parenting time to be restricted to two and a half hours on Sundays; either outdoors or in father’s home; subject to the children and father always wearing a mask. (2) Father to have daily virtual parenting time with the children on their cell phones for an hour. (3) Father is not to attend at the school or daycare nor to communicate with any of the staff. (4) If and when father becomes vaccinated the parties may negotiate a different parenting time

[8] On January 11, 2022, father was ordered to pay costs of $3900.; with payments of $300 a month commencing February 1, 2022.

[9] On February 10, 2022, father was found guilty of uttering a death threat to the mother and a probation order for 18 months was ordered with terms including counselling for the father and no contact with the mother. Mother has signed a revocable consent so they can communicate about parenting issues.

[10] Mother is seeking: (1) Sole decision-making, (2) Alternate weekend parenting time with father; mother will drop off on Fridays at 7 p.m. and father can drop off on Sundays at 6:30 p.m., and (3) Guideline table child support based on imputed income of $20 an hour or $41,600 a year, being $619 a month, commencing March 1, 2020

[11] Father is seeking: (1) Joint decision-making, (2) Shared parenting time, (3) And takes no position on child support.

Evidence for Mother

[12] The mother, two workers from the Children’s Aid Society of Toronto (CAST), the daycare supervisor, and a teacher gave evidence in the trial.

[13] The mother’s evidence is summarized in the following paragraphs.

[14] During the relationship, mother described father as very possessive and controlling. She said he was jealous of her friends and wanted her to wear very conservative clothing. She said father was physically abusive to her, using a closed fist to punch her in the face or shoulder, and also pushed her against the wall during arguments. She said that the children witnessed this conduct.

[15] Following an argument in the home in February of 2020, father was charged with threatening to kill the mother by choking her. Mother moved out with the children.

[16] From February until April of 2020, father made no effort to see the children.

[17] From May of 2020 until September of 2020, father saw the children on alternate weekends from Friday to Sunday.

[18] In September of 2020, father stopped seeing the children, saying he was busy.

[19] From November of 2020 until January of 2021, father would look after the children once or twice a week as mother needed childcare. In January of 2021, father refused to help. His visiting became sporadic.

[20] In March of 2021, father requested parenting time. He said he did not want his family seeing the children. The parents agreed to the weekend of March 26-28, 2021. Father refused to return the children on Sunday March 28, 2021. Father did not ensure the children attended school or daycare. The police were involved.

[21] Mother proceeded to file her court papers and the court made orders as set out above.

[22] By September of 2021, mother had to bring another urgent motion as father refused to be vaccinated. Father is also an anti-masker and this has caused difficulties for the daycare. The court decided these issues on December 10, 2021, as set out above.

[23] According to mother, father breached these orders by actually taking a mask off one of the children at the daycare; attending at the daycare on more than one occasion; and attending at the school.

[24] Mother sought father’s consent to take the children on a holiday out of the country and to renew one of the children’s passports. Father refused. Father called the police to report that mother had taken the children out of the country but she had only gone to Vancouver.

[25] Father reported mother to the Toronto police (TPS) and CAST on numerous occasions. The CAST witnesses confirmed the following information: (a) CAST were contacted by TPS on February 6, 2020, as father was charged with threatening to kill mother by choking. This was said in front of the children. CAST investigated and met with mother and the children. Children were assessed as safe with mother. Mother did admit to smacking the children on their hands for discipline and was educated on better forms of management. File was closed March 3, 2020. (b) From March 31, 2021 until April 22, 2021, the CAST had multiple phone calls from the police and father due to ongoing conflict between the parents. Father also had concerns about mother’s parenting. No concerns were verified except for the emotional impact on the children of the adult conflict. Mother confirmed she is sorting out the parenting conflict through the domestic court. Father did not want his family members babysitting his children. The CAST refused to be involved in that issue. The file was closed. (c) On May 26, 2021, father again contacted the CAST and expressed concerns for the safety of his children in the mother’s care. The children were interviewed and no concerns were raised. On June 3, 2021, his counsel requested a new worker be assigned. The new worker met with father and spoke to mother on the phone. The worker dissuaded the father from asking to have the children interviewed again. The parents were encouraged to access therapeutic support for their parenting. Father advised the worker that he had joint custody. The file was closed. (d) On June 13, 2022, TPS contacted CAST as father reported mother took children out of country without his consent (she and children were in Vancouver); father also reported being very concerned about mother’s care of the children; he alleged she had caused bruises on children. TPS made a home visit to mother and verified children were fine and had no bruises. TPS reported all of this to CAST. CAST closed the file in August, 2022.

[26] A teacher with the Toronto District School Board gave evidence about the possible special needs of the boy. She has 20 years experience and has taught this boy in both grade 2 and grade 3. She knows the mother and has met with her and spoken to her on several occasions. She has never met the father but may have seen him from a distance. She recommended to the family doctor that the boy be referred for testing for possible attention deficits. Mother advised her that the testing did not occur as father is not consenting.

[27] As a result of an incident in August of 2022, when father attended at the daycare and removed the daughter, without mother’s consent, father is now charged with two counts of assault on daycare staff.

[28] A daycare supervisor gave evidence. She said she had no direct knowledge of anything concerning this family and the daycare. She said there are logs of every incident. She knew that a daycare staff person had made an anonymous report to the CAST about the father. She didn’t know who that was. She knew there were charges against the father concerning staff at the daycare but was not present when the incident occurred. She admitted she was intimidated by the father because she lived in the same neighbourhood.

[29] Mother deposes that she has been the primary caregiver of the children. She has taken responsibility for: (a) all the feeding, bathing, and establishing of routines and schedules, (b) registering the children at daycare and paying the fees, (c) registering the children at school and being the primary contact, (d) all doctor appointments for the children; they are both fully immunized except for a last vaccination that could not be given due to covid, and (e) registering, paying for, and participating in the children’s extra curricular activities; such as, karate, taekwondo, and gymnastics.

[30] Mother provided documentary evidence to support her registrations and immunizations for the children.

[31] The children tell mother that father says she is not to feed them certain foods and she is not to have them vaccinated against COVID-19. Father has taken the children to anti-vaccination protests.

[32] Mother’s plan is to continue in the same 3 bedroom apartment and maintain the same school and daycare. Mother works for the City of Toronto as a housing counsellor from Monday to Friday from 8:00 am until 4:00 pm. Family members help babysit when necessary. Mother also works at a homeless shelter on alternate weekends. Mother will continue their activities.

[33] When Covid started to wane in the community, mother offered father extended access and believes that is important for the children. She wants to have the children home on Sundays however, so father will not need to have contact with the daycare or school.

[34] Mother does not think father should have mid-week access as he will not do homework with the children. In the past, the children have come home with incomplete homework and mother has had to stay up late helping them to finish.

[35] On the issue of child support, mother deposes that father voluntarily left a job that paid $20 an hour in February 2020. He has experience working as a cook and has worked in many restaurants over the years.

[36] After separation, mother tried to help father find a job. She found him a job with the City of Toronto in the laundry services area that pays $22 an hour but he did not follow through.

[37] Mother believes father is working for cash as he often refers to his work schedule. Shortly after separation he was working for cash with a moving company. One time in 2021, mother saw father drive by in a moving truck and he waved to her.

[38] Since the temporary child support order was made on May 3, 2021, based on his declared income of $24,000 in 2020, father has not made any voluntary payments.

Evidence for Father

[39] Father testified in the trial. The following paragraphs are a summary of his evidence.

[40] Father believes that before the separation, he and the mother did every thing together with the children. He described mother as the planner and he was the chef and cleaner.

[41] Father testifies that he has never displayed any anger towards the children or in front of the children. When mother would shout and scream, in the presence of the children, he would try to get her to stop.

[42] Father disagrees with the mother when she says he declined parenting time. He said he only cancelled when he was sick.

[43] Father denies taking the daughter from daycare without the mother’s consent. He testified that this was a common practice between the parents.

[44] Father also testified that he and the mother already currently share the cost of the children. He adds, however, that his only source of income right now is from friends and family. In court he added that the friends and family may also get him odd jobs for cash on the side.

[45] Father lives in the same apartment complex that the family had before separation. He has looked for work as a chef but no one is hiring. He is thinking of upgrading his skills in culinary arts or through a certification in drywall/painting. He wants to be his own boss.

[46] Father proposes a shared parenting arrangement and offered these details: (a) He will drop the children off and pick them up at the school bus stop; (b) He will not go directly to the daycare.

[47] He is currently unemployed but his schedule may change when he begins his studies online.

[48] He is content with the children choosing their extra-curricular activities.

[49] Father continues to be concerned that the mother has too much responsibility. He believes that mother, either directly or through the friends and family she chooses to care for the children, abuses and causes the children to be abused, both physically and verbally.

[50] Father provides pictures of bruises or scratches on the children from August 6, 2021, August 20, 2021, August 22, 2021, August 31, 2021, June 11, 2021, June 15, 2021, June 29, 2021, December 7, 2021, January 9, 2022, January 22, 2022, March 27, 2022, May 6, 2022, May 21, 2022, October 7, 2022.

[51] Father concludes in his affidavit at paragraph 40: The injuries sustained by my children at the hands of the Applicant are inexcusable and extremely alarming. Even more concerning are the injuries which the children refuse to explain. Their silence is deafening, and suggests that there is abuse possibly being perpetrated by third parties, or arbitrarily by their mother, who has instructed them to reiterate narratives she has fabricated.

[52] Father has contacted the police and the CAST on a number of occasions. He has been advised that no abuse has been verified. He does not believe the opinion of either the TPS or the CAST on this issue.

[53] On more than one occasion, the police have declined to consider an involuntary mental health arrest for the father. He believes that he, therefore, does not have a mental health issue.

[54] In cross-examination, father explained that he knew there was witchcraft and black magic but “never thought it would reach my home”. He has at times felt overwhelmed by this black magic. He cited the mother, maternal grandmother, maternal aunt, paternal grandmother, and paternal aunt as all having reached him through this witchcraft – “I felt it come over me… Now it is gone.”

[55] Father testified in his own defence at the criminal trial and said he could not recall anything that occurred because the mother or her family cast a spell on him.

[56] The criminal judge found the mother more credible than the father and convicted the father of threatening. He was sentenced to 18 months probation, with no contact conditions and a requirement to attend counselling. Father testified that he was starting his PARS program later the same day.

[57] Father alleges that the TPS assaulted him, by punching him in the face, in front of his children and the CAST workers, during one of the investigations. The CAST record on this incident, noted by the CAST worker who gave evidence, describes the occurrence on April 1, 2021. The worker, a co-worker, and two police officers attended at the home of the father. The CAST were following up on several allegations that had been made and the father had not been cooperating with the police. Most recently, father had picked up the daughter the day before at daycare without the mother’s agreement and had refused to return her. Father agreed to let the worker and her co-worker come into the apartment, which they did. One police officer kept his leg in the door so father could not close it. “the next minute R. was heard yelling don’t assault me…” The children and an older half sibling were sitting on the couch.

[58] In his evidence, father describes this incident as occurring after the mother had spoken to him about getting a divorce. He wanted the mother to come and talk to him. He turned down mother’s offers of having third parties pick up the children. If she wouldn’t come herself, he said would not return the children.

[59] One day when father was out with the children, he said a woman invited them to join the anti-vaccination protest. This woman said they would receive free drinks. The father and children are pictured in a photograph, carrying a sign which says “children cannot consent”. This photo is the father’s profile on his WhatsAp page.

[60] Father has not been vaccinated but testifies that that particular issue has not prevented him from obtaining work. His aunt sent him information that showed some suspicion about the ability of scientists to create a vaccine so quickly. He does not think it is safe.

[61] Mother alleged that father took the children 3 or 4 times and wouldn’t tell her where they were and refused to return them. Father responded to these allegations by claiming that mother was using his family members as babysitters and he believed they were abusing or being rough with his children.

[62] Father admitted that he was paranoid in the past because he found a spell book and believes that his own grandparents and parents tried to kill him. At the time of separation, he was experiencing spiritual battles and fighting witchcraft spells that had been placed on him.

[63] Father admitted that he is now charged with two counts of assault on daycare staff as a result of an incident that occurred on August 17, 2022. He admitted that his attendance at the daycare was in breach of the Justice Sherr order of December 9, 2021. He denies having any conflicts with the daycare, although he has recorded several interactions with them. He did recall the order of Justice Sherr requiring a mask for the children and admits that he ripped one up at the daycare.

[64] Regarding passports and travel, father admitted that he would not sign the passport renewal for one of the children when asked by the mother. Mother asked him not to include the children in the passport dispute but he did. He also agreed that he had not seen the children at that point in over three weeks. When he reported mother to the police for removing the children from the country without his consent, he also alleged that she was beating the children “all the time”.

Legal Framework for Parenting Orders

[65] Subsection 18 (1) of the Children’s Law Reform Act (the Act) defines decision-making responsibility 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;

[66] Section 20 of the Act reads as follows:

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. (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. (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. (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. (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.

[67] Subsection 21 (1) of the Act reads as follows:

21 (1) A parent of a child may apply to a court for a parenting order respecting, (a) decision-making responsibility with respect to the child; and (b) parenting time with respect to the child.

[68] Any proceeding with respect to children is determined with respect to the best interests of the particular child before the court in accordance with the considerations set out in section 24 of the (the Act).

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

[70] Subsection 24 (3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child. It reads as follows:

(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.

[71] The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.

[72] In considering a child’s best interests it will often be important to determine if a parent will follow the terms of a court order. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201.

[73] Section 28 of the Act 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 read as follows:

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.

[74] Subsection 33.1 (2) of the Act addresses the importance of the parties protecting children from conflict. It reads as follows:

(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.

[75] The Ontario Court of Appeal in Kaplanis v. Kaplanis, 2005 ONCA 1625 sets out the following principles in determining whether a joint decision-making responsibility order (formerly custody order) is appropriate:

1. There must be evidence of historical communication between the parents and appropriate communication between them.
2. It can’t be ordered in the hope that it will improve their communication.
3. Just because both parents are fit does not mean that joint custody should be ordered.
4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
6. The younger the child, the more important communication is.

[76] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. See: Griffiths v. Griffiths, 2005 ONCJ 235. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, 2009 ONSC 6423.

[77] A starting point to assess a child’s best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making an access order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615. Also see: J.N. v. A.S., 2020 ONSC 5292; A.L.M. v. V.L.S., 2020 ONCJ 502; M.R.-J. v. K.J., 2020 ONCJ 305; Abbas v. Downey, 2020 ONCJ 283; N.D. v. R.K., 2020 ONCJ 266.

[78] Mutual trust and respect are basic elements for a joint decision-making responsibility order to work effectively. See: G.T.C. v. S.M.G., 2020 ONCJ 511; T.P. v. A.E., 2021 ONSC 6022.

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

[80] In paragraph 504 of Izyuk v. Bilousov, 2011 ONSC 6451, the court writes:

In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children- particularly children already exposed to the upset of family breakdown- look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

[81] In the case of S.S. v. K.S., 2013 ONCJ 432 the court wrote that courts should assess the dynamics of a family when determining if a joint decision-making responsibility order is appropriate. Particularly, the court should examine if the granting of such an order is:

(a) more or less likely to de-escalate or inflame the parents' conflict; (b) more or less likely to expose the child to parental conflict; and, (c) Whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders for the purpose of asserting control over their former spouse and children, tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a joint custody order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.

[82] Financially supporting one’s children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint custody order as it demonstrates poor judgment and an inability to prioritize the child’s interests. Jama v. Mohamed, 2015 ONCJ 619; T.P. v. A.E., 2021 ONSC 6022; McBennett v. Danis, 2021 ONSC 3610; Pinda v. Pankiw, 2018 BCSC 190.

Credibility of the Parents:

[83] Where the parents’ evidence conflicts, the court prefers the mother’s evidence.

[84] Father’s evidence has been inconsistent and uncorroborated by neutral third parties.

[85] Despite his continuing allegations of abuse, father consented to mother having primary residence of the children on May 3, 2021.

[86] Despite the consent court order of May 3, 2021, father has refused to pay any child support to the mother. He has not paid his costs order of January 11, 2022.

[87] Father admits to breaching court orders regarding safety issues for his children’s physical health; such as wearing masks.

[88] Father admits to breaching court orders regarding the emotional security of his children; such as contact with the daycare and school.

[89] Father admits to his actions being governed by a spell book and witchcraft.

Best Interests of the Children

Analysis on Decision-Making

The children are young and require a conflict free, stable, and consistent environment:

[90] Father does not acknowledge the importance of stability or a conflict free environment for the children.

[91] Mother remains child focused at all times. She will avoid conflict by changing her plans rather than continue an argument with the father.

[92] One of the children may have special needs. His teacher has made a referral to the family doctor and an assessment is recommended. Father will not agree to this. He does not acknowledge the need. He testified that this may have also been a recommendation for his older son and, in father’s words, “it didn’t help him”.

[93] Father has had repeated involvement with the police and has been largely uncooperative. At one point, he staged a completely fictitious allegation of physical assault by a police officer in front of his children.

[94] Father has had repeated involvement with the CAST and has also been uncooperative and demanding. The same could be said of his relationship with the children’s daycare.

[95] Father has had no direct involvement with the children’s school.

The children would benefit from positive relationships with both parents and the extended family.

[96] Mother has consistently spoken of the importance of the children’s relationship with their father. She goes out of her way to promote that relationship and makes every effort to overcome the significant challenges that father places in her way.

[97] Father does not speak highly of mother but criticizes her in front of the children.

[98] Mother ensures a positive relationship between the children and extended family members, both maternal and paternal.

[99] Father is opposed to any of his family members having contact with his children.

What is the history of care for the children?

[100] From immediately following the separation, mother has been the primary caregiver of the children.

[101] The evidence illustrates that mother was responsible for daycare and school registration and was the primary contact with both. Mother enrolled the children in their extracurricular activities and paid for them. Mother took the children for their medical care and kept the immunization record.

Views and preferences of the children

[102] Although there is no specific evidence of their views, the home visits by police and CAST indicate that the children love both parents and are well cared for by mother. The children are quiet in the face of father’s conflict with the police, the CAST, and the daycare.

Heritage

[103] Both parents grew up in Trinidad and share the same cultural background.

Plans for the Children:

[104] Mother gave a very detailed description of her plan for the children and their time with their father.

[105] Father repeats his statement that he wants shared time with the children, but provides few details of how that would work for them.

Communication

[106] Father communicates with mother by bullying her and holding the children as hostage over her. He admits he does this to get her attention and her agreement to things she might not otherwise want to do.

[107] Father has been found guilty of threatening to choke the mother to death.

[108] Father has been a proven disruptive, uncooperative influence in the children’s lives with respect to daycare, public institutions, family, and their mother.

Family Violence.

[109] Father alleges falsely and repeatedly that mother and/or the family members who help her are abusing the children.

[110] Father has been found guilty of threatening the mother. The trial judge in father’s criminal trial, accepted the mother’s evidence and summarized it:

On February 5, 2020, she testified that he was cooking in the kitchen with a knife in his hand. They got into an argument and he said he couldn’t wait for her to leave in February. She said she didn’t yet have a place to stay…he then dropped to his knees, began crossing himself and said that if she didn’t leave in February, he would choke her to death…the children saw and overheard all of this and became very upset.

[111] Father is now charged with two counts of assault on daycare staff, after an incident in August of 2022. The volatility is not subsiding.

Judgment

[112] Father does not have good judgment. He cannot work with other people.

[113] Father does not deny breaching court orders with respect to mask-wearing and attendance at the daycare and the school.

[114] The court finds that the father cannot be a shared decision-maker with the mother for the benefit of these children.

Analysis on Parenting time

[115] The test for determining parenting time is what order is in the best interests of the child.

[116] Subsection 24 (6) of the Act states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

[117] In Knapp v. Knapp, 2021 ONCA 305, the court set out that there is no presumption that maximum parenting time equates with equal-parenting time. Every family, it wrote, is different and the court must focus on the child’s best interests in determining the appropriate parenting time order.

[118] In O'Brien v. Chuluunbaatar, 2021 ONCA 555, the court noted at paragraph 49 that the maximum contact principle has been replaced by subsection 24 (6) of the Act. On an appeal of a case heard before the March 1, 2021 amendments to the Act, the appeal court found that it did not have to consider the maximum contact principle – but, in any event, the trial judge had properly considered it.

[119] In Bressi v. Skinulis, 2021 ONSC 4874, Justice Andrea Himel wrote as follows:

[21] There is no presumption in favour of joint parenting and the term “maximal contact” is no longer found in the CLRA. The legislation states in that: “in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.”

[22] Clearly the idea of a presumption in favour of one type of parenting order is anathema to the court’s unrelenting focus on the child’s “best interests.” The most one can say is, all things being equal, the child deserves to have a meaningful and consistent relationship with both of their parents.

[120] In Baredregt v. Grebliunis, 2022 SCC 22, the Supreme Court of Canada wrote the following about the maximum time principle at paragraphs 134 and 135:

[134] Although Gordon v. Goertz, [1996] 2 SCR 27 placed emphasis on the “maximum contact principle”, it was clear that the best interests of the child are the sole consideration in relocation cases, and “if other factors show that it would not be in the child’s best interests, the court can and should restrict contact”: Gordon, at para. 24; see also para. 49. But in the years since Gordon, some courts have interpreted what is known as the “maximum contact principle” as effectively creating a presumption in favour of shared parenting arrangements, equal parenting time, or regular access: Folahan v. Folahan, 2013 ONSC 2966, at para. 14; Slade v. Slade, 2002 YKSC 40, at para. 10; see also F. Kelly, “Enforcing a Parent/Child Relationship At All Cost? Supervised Access Orders in the Canadian Courts” (2011), 49 Osgoode Hall L.J. 277, at pp. 278 and 296-98. Indeed, the term “maximum contact principle” seems to imply that as much contact with both parents as possible will necessarily be in the best interests of the child.

[135] These interpretations overreach. It is worth repeating that what is known as the maximum contact principle is only significant to the extent that it is in the child’s best interests; it must not be used to detract from this inquiry. It is notable that the amended Divorce Act recasts the “maximum contact principle” as “[p]arenting time consistent with best interests of child”: s. 16(6). This shift in language is more neutral and affirms the child-centric nature of the inquiry. Indeed, going forward, the “maximum contact principle” is better referred to as the “parenting time factor”.

[121] An equal-parenting time plan requires a high level of communication and coordination between the parties, particularly when the children are very young. In this case, the father would like to have shared time with the mother.

[122] In order to share equal time, the parents would have to coordinate schooling, medical appointments and extra-curricular activities for the children. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child. See: L.B. v. P.E., 2021 ONCJ 114; L.I.O. v. I.K.A., 2019 ONCJ 962.

[123] The court finds that a plan of shared time in this family would result in chaos and would be detrimental to the children’s best interests.

[124] There is a great emphasis on detailed parenting plans for children in the recent amendments to the Act. Mother has provided a very detailed parenting time proposal for the father, including all holidays and school breaks, and the location for drop offs and pick ups. Father has not outlined any detail with his global statement of shared parenting.

[125] The court finds that mother has a plan that is child-focused and removes, as much as possible, the potential for conflict and confusion. This plan has the children’s best interests at heart. The court wholly adopts the mother’s proposal.

Travel and Documents

[126] Mother proposes that either parent may travel up to 3 weeks with the children for vacation purposes, without the written consent of the other parents, subject to 30 days notice in writing and a detailed itinerary at least 10 days in advance of the travel.

[127] Father has been uncooperative about travel and government issued documents. There is no reason to give him any control over the vacation of the mother and children.

[128] The court finds that mother’s proposal is best for the children.

[129] The court finds that mother should be able to apply for all government issued documents for the children, without notice to nor the consent of the father. Mother shall keep all of the documents in her possession. Mother should provide the required documents to the father at least 5 days before he travel with the children and father should return the documents to mother immediately upon his return.

Child Support:

[130] It is generally true that separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income See Thompson v. Gilchrist, 2012 ONSC 4137.

[131] The mother asked the court for child support from February 1, 2020 until December 31, 2020, based on an imputed income to father of minimum wage employment, or $31,200. At that income Father should pay $477 per month for both children under the Child Support Guidelines.

[132] The court has jurisdiction to order retroactive child support payments, and the principles set out by the Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37, 2 S.C.R. 231, structure that discretion. In that decision the Court articulated two overarching principles governing claims for retroactive child support and retroactive increases in support: 1) Each parent has an obligation to insure that his/her child receives proper support in a timely manner; and 2) courts considering these claims must balance the payor’s interest in the certainty of the status quo with the need for fairness and flexibility. The Court set out four factors to be considered in such claims:

1. Reason for the delay in bringing the claim;
2. Conduct of the payor parent;
3. Circumstances of the child;
4. Hardship that may be caused by a retroactive award.

[133] In this case, the delay was caused by the parallel criminal proceedings. Father was ordered to provide his Notice of Assessment for 2020 by June 4, 2021 on May 3, 2021. He did not. He was again ordered to provide financial disclosure, including his 2020 Notice of Assessment and job searches, by October 4, 2021. He did not. Father was clearly aware of his obligations and his duty to disclose.

[134] The Court has held that if a retroactive award is appropriate, that it should usually commence on the date of effective notice—the date when the recipient advised the payor that support should be paid or renegotiated. An earlier date may be appropriate if there is blameworthy conduct by the payor, but generally a retroactive award should not commence earlier than three years before formal notice was given.

[135] In Michel v. Graydon, 2020 SCC 24, the court set out that the failure of a payor to disclose actual income, a fact within the knowledge of the payor, is blameworthy conduct that eliminates any need to protect the payor’s interest in certainty.

[136] Commencing January 1, 2021, mother asks the court to impute the father with income of $41,600 and order child support of $619 per month.

[137] Mother seeks a support deduction order and annual disclosure.

[138] Section 19 of the Guidelines permits the court to impute income to a party as it considers appropriate.

[139] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. Clause 19(1)(a) of the guidelines is perceived as being a test of reasonableness. See Drygala v. Pauli, 2002 ONCA 41868.

[140] The Ontario Court of Appeal in Drygala v. Pauli, 2002 ONCA 41868 set out the following three questions which should be answered by a court in considering a request to impute income:

1. Is the party intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by virtue of reasonable educational needs?
3. If not, what income is appropriately imputed?

[141] The mother brought evidence of the past employment of the father and the job offers that he has not pursued.

[142] Father’s Notices of Assessment indicate line 150 income in 2019 of $31,041; in 2020 of $20,796; and in 2021 of $20,097. Father has experience as a chef and often worked more than one job, including jobs on the side for cash.

[143] Father’s evidence is inconsistent: he is unemployed; he is being supported by friends and family; he is working on the side; he is looking for work; he is considering going to school online to learn a skill or trade or upgrade his culinary skills. There is no evidence of a job search or educational plans.

[144] Mother has met the onus of showing that father is underemployed intentionally.

[145] The onus shifts to father to defend the income position he is taking. Father does not propose any child support.

[146] Father swore a Financial Statement in June of 2021, stating that he was unemployed but expected to be called back to work once the pandemic restrictions were lifted. His income then, based on CERB, was $24,000. His expenses were $45,753., including rent of $1087, groceries of $600, $770 for children’s expenses; and support for another child of $250 a month.

[147] Father updated his Financial Statement for this trial. He states his only income is from family in the amount of $450 a month or $5400 a year. His expenses are $13,800, including rent of $1100 a month and groceries of $50 a month.

[148] There is no explanation from father as to how he meets his expenses in either time period.

[149] Mother has evidence of a job offer to father that she helped to obtain for him through the City of Toronto for $23.11 an hour, part time in the laundry services. Father said that he did contact them once and he was told that he was low down on the call in list.

[150] At his previous job at the Ballroom, he was making $20 an hour. Father gave no reason for leaving that job in February of 2020.

[151] Father has provided no resume or outline of job search.

[152] It is reasonable to assume father could make minimum wage in 2020. It is also reasonable to assume he could make more than that in 2021, particularly as he does work for cash on the side. Mother proposes $41,600 which is $20 an hour. That is what he was making in 2019.

[153] The court finds these proposals for child support very reasonable.

Final Orders

Decision Making

[154] The children, Xm., born […], 2013, and Xa. born […], 2017 ("the children") shall principally reside with the Applicant, S.W.-S.

[155] The Applicant, S.W.-S., shall make major decisions on the health, education, religion and significant extra-curricular activities for the children.

[156] The Applicant, S.W.-S., shall advise the Respondent, R.S., of any contemplated significant decision regarding the children in writing. Within 14 days after receiving this information the Respondent father may provide his written response with his views. If the parties do not agree, or if the Respondent father does not respond within 14 days, the Applicant mother shall make the final decision.

[157] The parties shall immediately advise each other by phone, email, or text if the children have 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.

[158] The Respondent, R.S. shall not make any major changes to the children’s physical appearances such as a major change in hair style, tattoos, piercings etc. unless previously agreed upon by the parties in writing by email.

[159] The Respondent, R.S., shall have the right to obtain information directly from the children’s teachers, doctors, or other service providers pursuant to section 20 (5) of the Children's Law Reform Act. The Applicant, S.W.-S., shall execute any authorization or consents to permit the Respondent father to do this.

[160] Neither party shall speak ill of the other party to the children or allow anyone else to do so within in earshot of the children.

[161] Neither party shall question the children about activities at the other party’s residence or tell the children what they should be doing at the other party’s residence.

[162] The Respondent, R.S., shall not attend the school/daycare premises outside his parenting time or unless he is attending a scheduled school/daycare event or function.

[163] The Applicant, S.W-S., may apply for government issued identity documents for the children including their passports, renewal of passports, renewal of health cards and social insurance numbers without the written consent or signature of the Respondent, R.S.

Parenting Schedule

[164] The Respondent, R.S., shall have parenting time as follows: (a) alternate weekends from Friday at 7:00 pm until Sunday evening at 6:00 pm. The Applicant, S.W.-S. shall drop the children to the lobby of Respondent father’s residence on Fridays and the Respondent father shall drop the children to the lobby of the Applicant mother’s residence on Sundays. (b) One weekday each week from 6:00 pm to 7:30 pm, on a day to be agreed upon by the parties, in accordance with the children’s schedule. The Applicant mother shall drop the children to the lobby of the Respondent father’s residence at 6:00 pm and the Respondent father shall return the children to the lobby of the Applicant mother’s residence at 7:30 pm. The Respondent father shall be responsible for the children’s dinner.

[165] If the Respondent, R.S.’s parenting weekend falls on a holiday Monday, his parenting time shall extend to include the holiday Monday until 6:00 pm.

[166] The children may initiate calls to the Respondent, R.S., as per their wishes through Xa.’s phone.

Holiday Schedule

(a) March Break – The parties shall divide March Break with the first half commencing on the Friday of the beginning of March Break at 7:00 pm to the Wednesday of March Break at 7:00 pm. The schedule shall rotate such that each parent will get the first half and second half in alternate years. The second half of the March Break shall commence on the Wednesday at 7:00 pm to Sunday evening at 6:00 pm. In 2023, the Applicant, S.W.-S. shall have the children in the first half of the break and the Respondent, R.S. shall have the children in the second half of the break. (b) Christmas – The following schedule shall be followed by the parties unless otherwise agreed upon in writing when the child commences school: i. In even numbered years, the Respondent, R.S., will have the children from the last day of school at 7:00 pm until 7:00 pm at the end of the first week of the break. On the Friday at 7:00 pm, after the first week of the break, the Applicant, S.W.-S., will have the children, to return to school on the Monday after the break. ii. In odd-numbered years, the parties shall reverse the schedule with the Applicant, S.W.-S., having the children from the last day of school to the Friday at 7:00 pm at the end of the first week and the Respondent, R.S., will have the children from 7:00 pm on the Friday after the first week of the break to the Sunday evening at 6:00 pm prior to school beginning. iii. Christmas Eve/Day shall alternate between the parties and the Christmas schedule will suspend. The regular Christmas schedule shall suspend as follows: In odd years, the Respondent, R.S., shall have parenting time from December 24 at 12:00 pm to December 25 at 12:00 pm and the Applicant, S.W.-S., 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. iv. New Year's shall alternate between the parties and the Christmas schedule will suspend. In even years, the Respondent, R.S. shall have the children on December 31 at 2:00 pm to January 1 at 2:00 pm and the Applicant, S.W.-S. shall have the children from January 1 at 2:00 pm to January 2 at 2:00 pm. In odd years the schedule will reverse and the Applicant, S.W.-S., shall have the children from December 31 at 2:00 pm to January 1 at 2:00 pm and the Respondent, R.S. shall have the children from January 1 at 2:00 pm to January 2 at 2:00 pm. v. All the transitions shall be done from the lobby of the party’s residence. The party who will be exercising the parenting time shall be responsible for the pick ups. The Respondent, R.S., shall drop off the children to the lobby of the Applicant, S.W.-S.’s residence at the end of the break if his parenting time falls on week 2 of the Christmas break or part 2 of the March Break. (c) Mother’s Day – If according to the usual routine, the children are not in the Applicant, S.W.-S.’s care on Mother’s Day, the Respondent, R.S., will return them to her on Mother’s Day at 12:00 pm. (d) Father’s Day – if according to the usual routine the children are not in the Respondent, R.S.’s care on Father’s Day, he may pick him up on Father’s Day at 12:00 pm until Sunday at 6:00 pm. (e) Summer Vacation – either party may take a week in July and a week in August for summer vacation with the children. The vacation schedules shall be arranged by May 1 each year. The Applicant, S.W.-S., will choose her weeks first in even years and the Respondent, R.S., will choose his weeks first in odd years. (f) Thanksgiving Weekend – The parties shall share the weekend with the following schedule in alternate years. Part 1 shall be Friday from 7:00 pm to Sunday at 2:00 pm. Part 2 shall be from Sunday at 2:00 pm to Monday at 6:00 pm. In even years the Applicant, S.W.-S., shall have Part 1 and the Respondent, R.S., shall have Part 2. In odd years the schedule shall reverse and the Applicant, S.W.-S., shall have Part 2 and the Respondent, R.S., shall have Part 1. (g) Easter – The parties shall divide the Easter weekend with the children. The First half of the Easter weekend shall commence 7:00 pm on Thursday before Good Friday to Saturday at 6:00 pm. The second half of the Easter weekend shall commence on Saturday at 6:00 pm to Monday at 6:00 pm. The schedule shall rotate such that each parent will have the first or second half in alternating years. In 2023 the Applicant, S.W.-S., shall have the children for the first half of the Easter weekend. The Respondent, R.S., shall have the children for the second half of the Easter weekend. The following year the schedule shall reverse.

Travel

[167] Each party shall be entitled travel with the children for vacation purposes for a period up to three consecutive weeks without the written consent of the other party. One month notice must be provided for travel.

[168] 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.

[169] The Applicant, S.W.-S., shall keep possession of the children’s passports. If the Respondent, R.S., is travelling with the children, the Applicant shall provide the passport to the Respondent, at least five days prior to travel. The Respondent shall return the passports to the Applicant immediately upon the return from the trip at the first access exchange.

Child Support

[170] Commencing February 1, 2020, the Respondent, R.S., shall pay $477 per month in child support to the Applicant, S.W.-S., for the children, Xm. born […], 2013, and Xa., born […] 2017, ("the children") based on an income of $31,200 pursuant to the Child Support Guidelines.

[171] Commencing January 1, 2021, the Respondent, R.S., shall pay $619 per month in child support to the Applicant, S.W.-S., for the children, Xm., born […], 2013, and Xa., born […], 2017, ("the children") based on an imputed income of $41,600 pursuant to the Child Support Guidelines.

[172] For as long as child support is to be paid, the parties shall exchange full income disclosure each year, by June 1st, including current income tax returns and notices of assessment, in accordance with section 24.1 of the Child Support Guidelines.

[173] Unless this order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and the amount owing under the order shall be paid to the Director who shall pay them to the person to whom they are owed.

[174] This Order bears post judgment interest at the rate of 3% per annum effective from the date of the order. Where there is default in payment, the payment in default shall bear interest only from the date of default.

Costs

[175] If counsel for the mother is seeking costs, she may serve and file a submission of 3 pages, maximum, excluding any Bills of Costs and Offers within two weeks. Counsel for father may serve and file a response also of 3 pages maximum, exclusive of Bills or Offers within one week of being served with the mother’s submission. A brief reply of one page may be served and filed within 3 days of receiving the father’s response. All submissions should be filed with the trial office of this court on the second floor.

Released: October 24, 2022. Signed: Justice D. Paulseth