Court File and Parties

DATE: February 22, 2024 COURT FILE NO.: D11999/17 ONTARIO COURT OF JUSTICE

B E T W E E N:

K.K.H. ACTING IN PERSON APPLICANT

- and –

A.A.B. ACTING IN PERSON RESPONDENT

HEARD: FEBRUARY 20, 2024 JUSTICE S.B. SHERR

REASONS FOR DECISION

Part One – Introduction

[1] This trial was about the parties’ motions to change the existing parenting orders regarding their child CBH, (the child). The child is 7 years old.

[2] The parties both seek a specified parenting schedule and several incidents of parenting. The mother also seeks a restraining order.

[3] The parties were not far apart in their parenting time proposals. The significant areas in dispute between them were:

a) How and where parenting exchanges should take place. The mother wants them to take place at the London Supervised Access Centre, any costs to be paid by the father. The father wants the exchanges to take place at a public location and not at an Access Centre. He wants the parties to equally share the transportation of the child.

b) At what age can the child travel with the father outside of Canada? The father wants to travel when the child turns 8 years old. The mother wants to wait until the child turns 12 years old.

c) Whether a restraining order should be made, or in the alternative, whether contact and communication orders should be made pursuant to section 28 of the Children’s Law Reform Act (the Act).

[4] The parties both testified. The mother presented most of her direct evidence by affidavit. The mother also called her mother (the maternal grandmother) as a witness. The maternal grandmother was briefly cross-examined by the father.

Part Two – Background facts and court history

[5] The mother is 36 years old. The father is 33 years old.

[6] The parties were both born in Jamaica. They are now Canadian citizens.

[7] The parties lived together from June 2015 until April 2017.

[8] The child has always primarily resided with the mother. They presently live in St. Thomas, Ontario.

[9] The mother said she is employed in technical sales.

[10] The father presently lives in Oshawa, Ontario with a new partner and their 3-month-old son.

[11] The father said he is employed as a warehouse coordinator.

[12] The parties both have annual incomes of about $60,000.

[13] In October 2017, the father was charged with assaulting the mother.

[14] The mother issued an application for parenting and support orders on December 13, 2017.

[15] The father was convicted of assaulting the mother on April 10, 2018. He received a conditional sentence with a six-month probation term.

[16] On May 17, 2018, on consent, Justice Carolyn Jones made final orders granting the mother custody of the child and access for the father on alternate Saturdays with exchanges taking place at Access for Parents and Children in Ontario (APCO) in Toronto, or a third party agreed to by the parties. She also ordered incidents of parenting related to government documentation, travel and rights to information about the child.

[17] On March 7, 2019, Justice Jones made a minor change to the communication terms between the parties. The mother withdrew her claim for a restraining order on a without prejudice basis.

[18] In April 2020, the father’s parenting time became virtual because of the pandemic.

[19] In August 2020, the mother and the child relocated to St. Thomas, Ontario.

[20] On August 5, 2021, the father issued his motion to change. He included a claim for joint decision-making responsibility for the child.

[21] The father’s in-person visits with the child resumed on August 7, 2021.

[22] The mother issued her response to motion to change on September 1, 2021.

[23] On April 5, 2022, on consent, Justice Jones made a temporary order changing the existing parenting orders. She ordered that the father have parenting time on alternate weekends from Saturdays at 10 a.m. until Sundays at 4 p.m. She ordered pickup from the London Access Center and drop off at APCO. She ordered the father to pay all fees associated with the supervised parenting exchanges. She also ordered incidents of parenting regarding communication and rights to information about the child.

[24] The father withdrew his claim for joint decision-making responsibility on October 18, 2022.

[25] On June 27, 2023, Justice Jones changed her April 5, 2022 parenting time order on a temporary basis. She ordered that the father have parenting time with the child on alternate weekends from Fridays at 6 p.m., with pickup from the London Access Centre, until Sundays at 4 p.m., with drop off at APCO, with all holiday exchanges to take place at Brayden Supervision Services. She also ordered further incidents of parenting. This is the operative temporary parenting order.

Part Three – Material change in circumstances

[26] Section 29 of the Act provides the statutory authority for changing a parenting order. Subsection 29 (1) states:

A court shall not make an order under this Part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order.

[27] The Supreme Court of Canada decision in Gordon v. Goertz (1996), 19 R.F.L. (4th) 177 S.C.C. (Gordon) sets out a two-stage process for the court to conduct in motions to change parenting orders as follows:

a) First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

b) If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

[28] The parties agreed that there have been material changes in circumstances affecting the child since the May 17, 2018 parenting order was made. Two material changes have been the significant increase in the father’s parenting time with the child and the mother’s relocation with the child to St. Thomas.

Part Four – Best interests legal considerations

[29] The second step as set out in Gordon is to determine what parenting orders are in the child’s best interests, having regard to all the relevant circumstances relating to the child’s needs and the ability of the parents to satisfy them.

[30] In determining the child’s best interests, the court considered the factors set out in subsections 24 (2) to (7) of the Act. This included a consideration of family violence, as defined in subsection 18 (1) of the Act.

[31] An assessment of the best interests of the child must take into account all of the relevant circumstances with respect to the needs of the child and the ability of each parent to meet those needs. See: Mokhov v. Ratayeva, 2021 ONSC 5454.

[32] 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.

[33] The court considered that a starting point to assess a child’s best interests when making a parenting order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making a parenting time order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615. Also see: Armstrong v. Coupland, 2023 ONSC 5451; 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.

[34] The party who seeks to reduce normal parenting time will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See: M.A. v. J.D., [2003] O.J. No. 2946 (OCJ); Dayboll v. Biyag, 2022 ONSC 6510.

[35] A custodial parent must not just accommodate access, they must facilitate it. See; Scrivo v. Scrivo, 2012 ONSC 2727, 2012 CarswellOnt 5545; Tran v. Chen, 2012 ONSC 3994, 2012 CarswellOnt 8551.

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

33. 1 Protection of children from conflict

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

[37] A party's failure to protect a child from conflict may be an important consideration in granting primary residence or decision-making responsibility to the other parent. See: Dayboll v. Binag, 2022 ONSC 6510; I.A. v. I.G., 2023 ONCJ 523.

[38] The Supreme Court of Canada in Barendregt v. Grebliunis, 2022 SCC 22 made the following observations about family violence:

The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis (par. 146).

The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497. (par. 145).

Domestic violence allegations are notoriously difficult to prove. Family violence often takes place behind closed doors and may lack corroborating evidence. Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support (par. 145).

[39] Justice Deborah Chappel wrote about the importance of family violence as a best interests factor in paragraph 86 of McBennett v. Danis, 2021 ONSC 3610, as follows:

The broad definition of family violence and the specific inclusion of this factor as a mandatory consideration in determining the best interests of children recognize the profound effects that all forms of family violence can have on children. These consequences can be both direct, if a child is exposed to the family violence, or indirect, if the victimized parent’s physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact their ability to meet the child’s physical and emotional needs.

[40] In cases of family violence, particularly spousal violence, it is crucial that the court consider whether a co-operative parenting arrangement is appropriate. A victim of family violence might be unable to co-parent due to the trauma they have experienced or ongoing fear of the perpetrator. In addition, co-operative arrangements may lead to opportunities for further family violence. See: Bell v. Reinhardt, 2021 ONSC 3353.

[41] Violence need not be physical. Emotional and psychological abuse can have a devastating impact on a child. See: Dayboll v. Binag, 2022 ONSC 6510; El Khatib v. Noun, 2023 ONSC 1667.

Part Five – Summary of the parties’ narratives

[42] The father testified that:

a) The mother has created unreasonable barriers to his involvement with the child.

b) The mother has resisted increasing his parenting time with the child.

c) The mother has tried to exclude him from the child’s life.

d) The mother relocated to St. Thomas in 2020 without notifying him.

e) His only act of family violence was the assault of the mother in 2017. He denies all other allegations of family violence made by the mother.

f) He took the PARS anger management course.

g) He has stayed away from the mother since 2017.

h) He has complied with court orders not to contact the mother.

i) The mother is not at any risk of harm from him.

j) He would not do anything to compromise his parenting time with the child.

k) Supervision of exchanges is no longer necessary and is expensive. He proposed that exchanges take place at a public location or at a police station, if the mother feels safer there.

l) He has been consistent in exercising his parenting time since it resumed in person in August 2021. He acknowledged he wasn’t always consistent in exercising his parenting time before then.

m) He wants to be involved in his child’s life without interference from the mother.

n) He wants to travel with the child so the child can meet his family and enjoy these experiences with him.

o) He doesn’t want the child to feel he is treated differently from his other child.

p) The child has a close relationship with him. The child also has a warm relationship with his partner.

[43] The mother testified that:

a) She was the victim of extensive family violence in her relationship with the father.

b) The family violence was physical, emotional, psychological and financial.

c) The father is coercive and controlling. He becomes demanding and abusive when he doesn’t get his own way.

d) The father only controls his behaviour when the matter is before the court. He will revert to his abusive behaviour unless strict terms regarding contact and communication are put into place.

e) The father used to phone her and hang up, or have his proxies call her. This stopped after he issued his motion to change in August 2021. [1]

f) She remains fearful of the father. She does not believe he has changed.

g) She has suffered considerable trauma from her relationship with the father.

h) The father exercises his parenting time inconsistently, except when the case is before the court.

i) The father refuses to inform the Access Centre about the cause of any injuries to the child, such as bumps and bruises.

j) She wants parenting exchanges to remain at Supervised Access Centres. She feels this is safest for her, will protect the child from conflict and will provide an independent record of the father’s consistency in exercising his parenting time in the event there are future court proceedings.

k) She wants the parenting exchanges to take place at the London Access Centre. She says she has vertigo, is off work and cannot drive. She asks for the father to pay the Access Centre’s cost because she is paying for all the special and extraordinary expenses for the child without any contribution from him.

l) The parties cannot communicate. She only wants to communicate with the father by APP-Close if there is an emergency regarding the child.

m) She wants the child to have a positive relationship with the father. She does not oppose parenting time increases. She just wants these increases to take place gradually and safely.

n) It is in the child’s best interests to wait until he is 10 years old to travel within Canada with the father and 12 years old before he travels internationally with him. She feels the child will be better able to communicate his views and wishes at these ages.

Part Six – What the parents agreed about (or were close to agreeing about)

[44] Despite their different narratives, the parents agreed that:

a) The child is a wonderful boy. He is friendly, enthusiastic and loving.

b) The child is healthy and happy.

c) The child is very bright. The mother described him as being at the top of his class at school.

d) The child has no special needs.

e) They have had very little contact with each other since 2017. None of it has been in person.

f) There has been little conflict between them since 2017. None of it has been in person.

g) The child has not been exposed to conflict between them since 2017.

h) The father has exercised his parenting time consistently since he issued his motion to change. He was inconsistent before that date.

i) The child has adjusted positively to the increases in parenting time with the father.

j) There have been no significant concerns about the father’s parenting time with the child.

k) The father’s parenting time should continue on alternate weekends.

l) The father may obtain information directly from the child’s service providers, including from the child’s schools and teachers. He may obtain report cards and attend parent-teacher interviews. He may directly contact the child’s medical professionals to obtain any information regarding the child’s progress and/or treatment, without the mother’s consent. [2]

m) The father should provide the mother with 60 days notice of any intention to travel with the child.

n) The traveling party shall provide a travel itinerary that lists the name of the flight carrier, dates of travel, and contact number for emergency 30 days prior to departure.

o) The mother shall provide the child’s original passport and consent letter to the father for international travel. The father asks that this be done 14 days before the trip. The mother did not oppose this request.

p) They will continue to use APP-Close to communicate about the child. [3]

q) Both parties will check APP-Close regularly and respond to messages in a timely manner.

[45] The parties presented similar proposals for holiday parenting time. The mother proposed that the father have parenting time with the child for two non-consecutive weeks during the summer and be notified by the father of these dates by April 1st each year. The father is agreeable to the summer parenting time suggested by the mother, but he wants the weeks he will exercise his parenting time to be specified in the order. To create certainty for the parties, the court will do this.

[46] The father wants the summer parenting time to increase to two weeks in each month for each parent starting in 2025. The mother disagrees. Given the historical amount of parenting time the father has had with the child, the court agrees with the mother that doubling summer parenting time in one year is not in the child’s best interests. However, the court will grant the father’s request starting in 2027.

[47] Otherwise, the court will incorporate the terms of the mother’s proposed holiday parenting time into the final order with some minor changes for clarity. The order will also set out that the child shall spend Mother’s Day weekend with the mother and Father’s Day weekend with the father, even if it is not that parent’s regularly scheduled weekend.

[48] The order will provide that parenting time be made up at the first opportunity if the mother cancels a visit for any reason. It will not be made up if the father cancels a visit.

[49] The father sought additional rights to information about the child. His requests for the most part were reasonable and will give him the opportunity to participate in the child’s life. This is in the child’s best interests. The court will order that the mother keep him updated about:

a) The name and contact number for any caregiver for the child.

b) Any health or medication information about the child.

c) The name and address of any of the child’s doctors.

d) The name and contact number for any service provider for the child.

e) Any change of address.

f) The name and address of any school.

[50] The father sought an order for the child to meet regularly with the school social worker. The court will not make this order. There is no evidence of any need for it. The child is doing well. The mother has decision-making responsibility for the child and should be the parent making this decision.

Part Seven – Findings on the material contested facts

[51] The parties agreed there was family violence by the father in their relationship. They disagreed on the extent of that violence. The father said it only happened one time – the assault in 2017. The mother described two physical assaults. She also described constant emotional and psychological abuse by the father. She said he often yelled profanities at her and insulted and demeaned her. She described him as coercive and controlling.

[52] The assault the father admitted to was significant. The father choked the mother and pushed her up against a wall. He lost control.

[53] The court generally believed the mother’s version of family violence while the parties lived together. Her evidence was consistent and credible. Her fear of the father at court was palpable. The father was quick to dismiss her allegations. However, he acknowledged his frustrations with the mother and resorting to using profanity when frustrated.

[54] The father sent a text to the mother in October 2022 after a court appearance. He told her that she was ugly and she could tell the judge that. The father conceded he sent her this text. This text reflected a lack of maturity and impulse control.

[55] Whatever the extent of the family violence, it was very apparent that the mother has been traumatized by her relationship with the father. It is very likely that this trauma has informed her actions.

[56] The father felt the mother should move on from what happened between them. He said, “I apologized and I moved on, she should move on too”. This reflected an insensitivity to the mother’s experiences.

[57] There is no timeline for victims of family violence to recover, in whole, in part, or at all. The impact of domestic violence varies depending on the individual. Many victims of family violence suffer long-lasting damage – even from single incidents of family violence. The father caused the mother’s trauma. Consequences flow from this. The parenting exchanges will not take place the way the father wants them to and there will be financial costs to ensure the mother’s emotional safety at parenting exchanges.

[58] While the court generally accepts the mother’s version of family violence, it also makes the following findings of fact:

a) With the exception of the abusive text he sent to the mother in October 2022, the father has not committed an act of family violence against her since his arrest in 2017. [4]

b) The father has complied with court orders regarding contact and communication with the mother.

c) The father completed the PARS anger management program.

d) The father is in a healthy relationship with his new partner.

e) The father has had no police involvement since the assault in 2017.

f) The father is highly motivated to have a relationship with the child and does not want to do anything to compromise this.

g) The father poses a very low risk of committing family violence against the mother in the future.

h) The father described a loving relationship with the child. He spoke about the child with tenderness and affection. He described the many activities they do together on visits.

i) The father poses no risk to the child.

j) It is in the child’s best interests that his relationship with the father be fostered and encouraged.

k) The mother remains very afraid of the father. She is taking counseling to address her fear.

l) It will take very little action from the father to trigger and exacerbate the mother’s fear.

m) The mother does not trust the father. There is a good chance she will never trust him.

n) The mother is vulnerable and emotionally fragile. Forcing her to have direct involvement with the father, except for the purpose of exchanging necessary information about the child, could potentially destabilize her. She is the primary caregiver for the child. This would not be in the child’s best interests.

o) The mother wants nothing to do with the father.

p) While the mother professed that she wants the child to have a positive relationship with the father, she has not done what a parent should do to facilitate the child’s relationship with him. She has been rigid. Her fear of the father explains but does not justify this. The mother has placed barriers to the father having a relationship with the child, such as:

i) She has been very reluctant to agree to reasonable parenting time increases. Many court appearances have been required to move parenting time forward.

ii) She relocated to St. Thomas. The father did not receive notice of this move. The mother claimed she sent notice of her relocation to an old address for the father. She did not file evidence of doing this.

The father asked the mother for her address in June 2021 and she did not provide it to him. This supports the father’s evidence that he did not know the mother had relocated and the mother did not want him to know where she was living.

iii) She wants the father to do all the transportation for the visits. This would mean the father would have to drive from Oshawa to London and back twice on his parenting time weekends. This is inconsiderate of the father’s work and family obligations and to the child’s need to spend meaningful parenting time with him.

[59] These findings of fact will guide the court’s decisions about the areas in dispute.

Part Eight – Parenting exchanges

[60] The court finds it is in the child’s best interests to maintain the existing parenting exchange arrangements. The father shall pick up the child from the London Access Center on Friday and the mother shall pick up the child from APCO on Sundays. The father will pay the annual costs of the Access Centres. The father said the fees total $550 annually.

[61] This exchange arrangement has been working. It protects the mother, reduces her fear of the exchanges, provides consistency and stability for the child and protects the child from exposure to potential adult conflict. It also ensures consistency and timeliness in attendance, as this will be recorded.

[62] The father’s major objection to this arrangement was the cost. However, the cost of the Access Centres is not prohibitive and as pointed out by the mother, the father is not contributing to the child’s special and extraordinary expenses, pursuant to section 7 of the Child Support Guidelines. Further, as will be set out below, the mother may have to incur additional transportation costs to facilitate the father’s parenting time until she recovers from her vertigo.

[63] There will be times when an Access Centre will be closed during the scheduled parenting time. [5] There is also the future possibility that an Access Centre will not facilitate these parenting exchanges. When an Access Centre is unavailable an alternative arrangement is required. It is critical to the development of the child’s relationship with the father that his parenting time with the father not be interrupted.

[64] The court is not prepared to order the parenting exchanges to take place in a public place or at a police station as suggested by the father. Ordering parenting time to take place in a public location is too stressful for the mother and by extension will likely make the exchanges stressful for the child. In K.M. v. J.R., 2022 ONSC 111, the court articulated the following problems with ordering parenting exchanges at police stations:

a) It sends messaging to children that their world is not safe and the exchanges are dangerous.

b) That someone they love is dangerous or unsafe.

c) Transitions become anxiety-provoking.

d) The police are not equipped for this.

e) It is adult focused, not child focused.

[65] In her June 27, 2023 order, Justice Jones ordered that holiday parenting time shall take place at Brayden Supervision Services (Braydon). The court finds this order is still in the child’s best interests.

[66] The court will require the parties to sign up for Brayden. Brayden will supervise the parenting exchanges if an Access Centre is closed or will no longer facilitate parenting exchanges. The court recognizes this is expensive. Hopefully, it will only need to be used a few times a year. However, this is a worthwhile financial investment by the parties to ensure that the child has a positive and meaningful relationship with the father. Both parties should be committed to this goal for the sake of the child. The court will require the parties to equally pay for Braydon’s costs.

[67] The parties are free to agree to use a different professional supervised parenting time agency than Brayden. The same terms will apply.

[68] The father asked the court to specify his summer parenting time weeks with the child. He suggested the first week of July and the first week of August. However, APCO will be closed at those times. To save the parties the cost of the private agency the father’s parenting time will take place in the second week of July and the second week of August.

[69] The mother raised a new concern about the exchange arrangements at trial. She said she has been unable to drive a car since December 2023 due to her vertigo. [6] The mother provided a hospital report from January 2024 confirming she is having extreme dizziness and vertigo.

[70] The mother is scheduled to see a neurologist at the end of March 2014. At this point, the cause of the vertigo is unknown. It is also unknown how long it will last, the extent to which it may impair the mother and what treatment, if any, will be required. The medical assessment of the mother is in its early stages.

[71] The court has to balance the mother’s physical challenges against the importance of the child having a meaningful relationship with the father. It also has to consider that the father has work and family obligations that create logistical hurdles in crafting a parenting exchange order.

[72] It is not in the child’s best interests to spend a substantial portion of his limited parenting time with the father in a car. It is also not fair to make the father do all the driving for parenting exchanges. This would create another barrier to his having a meaningful relationship with the child. He is already adjusting his work schedule to pick up the child on Fridays. He has a young baby at home.

[73] The court also considered it was the mother who partially created this logistical problem by relocating to St. Thomas. The father’s family violence towards the mother is why there are supervised parenting exchanges.

[74] The mother does not have to drive the child to parenting exchanges. She has other choices, although some expense might be involved. She described an extensive support network in St. Thomas. She may find friends or family to drive the child to APCO twice each month. She can take a bus. She can take a train. She can pay a driver.

Part Nine – Travel

[75] The court finds the father’s proposal to travel internationally with the child once the child turns 8 years old (in February 2025) is in the child’s best interests. The court makes this finding for the following reasons:

a) The father has developed a close and loving relationship with the child.

b) Most of the father’s family live in Jamaica. Traveling to Jamaica with his father to meet his extended family will be beneficial for the child. It will give him positive experiences, the opportunity to meet and be integrated into the paternal family and be better exposed to his culture and heritage.

c) The father poses no risk to the child.

d) The court is confident the father will parent the child in a responsible manner.

e) This will consolidate the child’s sense of belonging with the father, his new sibling and his father’s partner. He will not be excluded from family vacations.

f) The mother’s proposal to wait until the child is 12 years old before he can travel internationally with the father is far too restrictive and not in the child’s best interests.

Part Ten – The mother’s request for a restraining order

[76] The mother’s request for a restraining order is made pursuant to section 46 of the Family Law Act. This section reads as follows:

Restraining order

46. (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

Same

(2) A restraining order under subsection (1) may be made against,

(a) a spouse or former spouse of the applicant; or

(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time.

Provisions of order

(3) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

[77] In G.P. v. R.P., 2023 ONCJ 388, this court set out the legal principles to apply in determining whether to grant a restraining order as follows:

a. Restraining orders are serious and should not be ordered unless a clear case has been made out. See: Ciffolillo v. Niewelglowski, 2007 ONCJ 469.

b. Courts should not order restraining orders in borderline cases just to be cautious. That ignores the test and the onus of proof. See: A.H. v. M.T., 2023 ONSC 2365.

c. A restraining order is serious, with criminal consequences if there is a breach. It will also likely appear if prospective employers conduct a criminal record (CPIC) search. This could adversely affect a person’s ability to work. It may affect a person’s immigration status. See: F.K. v. M.C., 2017 ONCJ 181.

d. It is not sufficient to argue that there would be no harm in granting the order. See: Edwards v. Tronick-Wehring 2004 ONCJ 195.

e. Courts should be hesitant to make the order simply because there was a similar order in place before that has now expired. Orders expire. See: A.H. v. M.T., supra.

f. Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds for the person to fear for his or her own safety or for the safety of their child”. See: McCall v. Res, 2013 ONCJ 254.

g. The test for a restraining order is both objective and subjective. The legislation itself makes that clear, as an entirely subjective test would have no use for the words “reasonable grounds” as a qualifier to the fear(s) expressed by the requesting party. See: A.H. v. M.T., supra; McGowan v. McGowan, 2018 ONSC 5950, at paragraph 38. [7]

h. The relief is discretionary. While there are subjective and objective elements in the test, more is required than an expression of concern. There must be evidence as to specific events and a connection to the present situation. See: Noriega v. Litke, 2020 ONSC 2970; S.S.L. v. M.A.B., 2022 ONSC 6326.

i. It is not necessary for a respondent to have actually committed an act, gesture or words of harassment to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. See: Fuda v. Fuda, supra.

j. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears. See: Fuda v. Fuda, supra.

k. A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. See: Purewal v. Purewal, 2004 ONCJ 195.

l. Courts should have regard for the passage of time. Events that once triggered a temporary restraining order may not be so compelling on the issue of a permanent order. See: D.C. v. M.T.C., 2015 ONCJ 242; Jumale v. Mahamed, 2022 ONSC 566.

m. In borderline cases, the court must consider what other protections may be available if a restraining order is not granted. See: D.C. v. M.T.C., supra; M.H.S. v. M.R., 2021 ONCJ 665.

n. It is appropriate, in borderline cases, to consider the balancing prejudice to the respondent if the restraining order is granted. See: D.C. v. M.T.C., supra; M.H.S. v. M.R., supra.

o. A court is not precluded from making a final restraining order if a party has complied with a temporary order under section 28 of the Act. On a temporary motion, the court does not have the benefit of the fulsome record it has at trial. Cross-examination at trial can provide valuable information in the court’s risk assessment. Further, the court should be alert to the fact that parties may improve their behaviour when the eyes of the court are on them. This might not continue once the case ends. See: F.K. v. M.C., supra.

[78] The evidence does not support the court making a restraining order for the following reasons:

a) With the exception of the abusive text he sent to the mother in October 2022, the father has not committed an act of family violence since his arrest in 2017.

b) The father’s probation expired on October 10, 2018. There has been no restraining order in place since then. The mother withdrew her request for a restraining order on March 7, 2019. There is no need for a restraining order now.

c) The father has complied with court orders regarding contact and communication with the mother.

d) The father is highly motivated to parent the child and does not want to compromise his relationship with the child by engaging with the mother.

e) The father is presently in a healthy relationship.

f) The father poses a very low future risk of committing family violence against the mother.

g) Granting a restraining order could adversely affect the father’s future employment or his ability to travel internationally.

h) The mother can be protected by making contact and communication orders pursuant to section 28 of the Act. It is a more proportionate order in these circumstances.

[79] The mother wanted to limit her communication with the father to emergencies concerning the child. This is too restrictive and not in the child’s best interests. That said, there should be limitations placed on the communication and contact between the parties pursuant to section 28 of the Act. These terms and conditions will be set out in detail in the final order. These orders are in the child’s best interests because:

a) They will create a mechanism to ensure that necessary communication about the child take place between the parents.

b) They will place restraints on communication and contact between the parties to ensure the mother’s safety and sense of well-being.

c) They will protect the child from adult conflict.

Part Eleven – Conclusion

[80] There have been several parenting orders. It will assist the parties to have all parenting terms incorporated into one court order.

[81] All prior parenting orders will be terminated and replaced by this order.

[82] A final order shall go as follows:

Primary residence, decision-making responsibility and incidents of parenting

a) The child’s primary residence shall be with the mother.

b) The mother shall have decision-making responsibility for the child.

c) The father may obtain information directly from the child’s service providers, including from the child’s schools and teachers. He may obtain report cards and attend parent-teacher interviews. He may directly contact the child’s medical professionals to obtain any information regarding the child’s progress and/or treatment, without the mother’s consent.

d) The mother may obtain or renew all government documentation for the child, including passports, without the father’s consent.

Parenting Time

e) The father shall have regular parenting time with the child on alternate weekends from Fridays at 6 p.m. until Sundays at 4 p.m.

f) Holiday parenting time shall take priority to the regular parenting time schedule.

g) In odd-numbered years, the child shall spend the first week of the winter school break with the mother and the second week of the winter school break with the father. In even-numbered years, the child shall spend the first week of the winter school break with the father and the second week of the winter school break with the mother. The first week will start on Friday after school ends at 6 p.m. and continue until the following Friday at 4 p.m.

h) In odd-numbered years, the father shall have parenting time with the child during March Break from Friday at 6 p.m. until the following Saturday at 4 p.m. In even-numbered years, the child shall spend the March Break with the mother.

i) In even-numbered years, the child shall spend the Easter holiday with the father from Friday at 6 p.m. until Monday at 4 p.m., even if it is not his regular weekend. In odd-numbered years, the child shall spend this holiday with the mother, even if it is not her parenting time weekend.

j) In even-numbered years, the child shall spend the Thanksgiving weekend with the mother, even if it is not her regular weekend. In odd-numbered years, the child shall spend this weekend with the father from Friday at 6 p.m. until Monday at 4 p.m., even if it is not his regular weekend.

k) The child shall spend Mother’s Day weekend with the mother, even if it is the father’s regular parenting weekend.

l) The child shall spend Father’s Day weekend with the father from Friday at 6 p.m. until Sunday at 4 p.m., even if it is the mother’s regular parenting weekend.

m) The child shall spend the second week of July and second week of August each year with the father, starting in 2024. The child shall be picked up on the second Friday of the month at 6 p.m. and returned on the following Saturday at 4 p.m. In 2024, the pick up shall take place on August 9 and the drop off shall take place on August 17.

n) The mother may also select two weeks in the summer where she will have exclusive parenting time with the child that do not conflict with the father’s extended summer parenting time. She is to advise him of these dates by May 1st each year. The father’s regular parenting time will not take place during these weeks.

o) Starting in 2027, the child shall spend the second and third weeks of July and the second and third of August each year with the father. The child shall be picked up on the second Friday of the month at 6 p.m. and returned on the Saturday, two weeks later, at 4 p.m.

p) Starting in 2027, the mother may also select two weeks in July and two weeks in August where she will have exclusive parenting time with the child that do not conflict with the father’s extended summer parenting time. She is to advise him of these dates by May 1st each year. The father’s regular parenting time will not take place during these weeks.

q) If the mother cancels a parenting time weekend with the father for any reason, it shall be made up at the earliest opportunity.

r) If the father cancels a parenting time weekend for any reason, it shall not be made up.

Parenting exchanges

s) The child shall be picked up by the father at the start of any parenting time at the London Access Center.

t) The child shall be picked up by the mother, or her designated agent, at the end of the father’s parenting time at APCO.

u) The father shall pay the annual costs of both Access Centres.

v) If an Access Centre is closed for any scheduled parenting exchange, or any Access Centre is unable or unwilling to facilitate the exchange, the exchange shall be conducted by Brayden, or any other professional supervised parenting time agency the parties agree to. The parties shall immediately sign up for Brayden’s services and shall equally share Brayden’s, or the other agreed to agency’s costs.

Contact and communication pursuant to section 28 of the Act

w) The parties shall only communicate by APP-Close.

x) Both parties are to check APP-Close regularly and respond to messages in a timely manner.

y) The parties shall restrict their communication to the following about the child:

i) Providing the father with the names and contact numbers of the child’s school, caregivers, doctors or service providers.

ii) Any health issue about the child.

iii) Any medications the child is taking or has stopped taking.

iv) The dates and results of any medical appointment about the child.

v) Any proposal to change the child’s school.

vi) Notification by the mother to the father if she will have a designate exchange the child and who that person is.

vii) Notice of what summer vacation weeks the mother is choosing.

viii) For the parties to provide each other with any required notice of change of address or relocation as required in the Act.

ix) Any change to the father’s address.

x) Any emergency concerning the child.

xi) Any travel plans concerning the child, as required in this order.

xii) Arranging contact with the child when a parent is traveling with the child.

xiii) Sending annual financial disclosure to the other party, as required in prior court orders.

xiv) Exchanging any court documentation.

z) Otherwise, the father is not to contact or communicate with the mother. He shall not have any person, other than an Access Centre, Braydon, or other professional parenting supervision service agreed to, contact the mother on his behalf.

aa) All communication between the parties is to be about the child and shall be respectful.

bb) The father shall not attend within 200 meters of the mother’s home.

cc) Any changes or cancellations to parenting time shall be on 48 hours notice.

Travel

dd) The mother may travel with the child outside of Canada, without the father’s consent.

ee) Starting in 2025, the father may travel with the child outside of Canada, without the mother’s consent.

ff) The parties should provide each other with 60 days notice of any intention to travel outside of Canada with the child.

gg) The traveling party shall provide a travel itinerary that lists the name of the flight carrier, dates of travel and contact information for emergency 30 days prior to departure.

hh) The mother shall provide the child’s original passport and consent letter to the father for travel outside of Canada at least 14 days before the proposed trip.

ii) The traveling parent will facilitate telephone or video contact from the child to the other parent while traveling.

Other

jj) All other claims made by the parties not addressed above, including the mother’s claim for a restraining order, are dismissed.

kk) This order will not change any prior support orders.

[83] Subrule 5 (1) (b) of the Family Law Rules sets out that any case regarding decision-making responsibility, parenting time or contact about a child shall take place in the municipality where the child habitually resides. The child now resides in St. Thomas. Unless this changes, any future motion to change these parenting orders should take place there.

[84] If either party seeks their costs, they are to serve and file written costs submissions by March 7, 2024. The other party will then have until March 21, 2024 to serve and file their responding costs submissions (not to make a new costs claim).

[85] The costs submissions should be no more than two pages, double-spaced, not including any offer to settle or bill of costs. They are to be delivered to the trial coordinator’s office on the second floor of the courthouse.

[86] The court recognizes this court action has been stressful for the parties. The court thanks them for the civil manner in which they conducted this trial.

Released: February 22, 2024

Justice Stanley B. Sherr

[1] The father denied ever doing this.

[2] These terms already exist in the April 5, 2023 and June 27, 2023 orders.

[3] The mother asks that communication be limited to emergencies about the child. The father disagrees. This will be discussed in more detail below.

[4] The court treated the mother’s evidence of phone harassment by the father with caution. Her claims about this were vague, undocumented and not included in her trial affidavit. She assumed hang ups she received were from the father. They could have been from many other sources. In any event, the mother agreed these phone calls stopped after August 2021.

[5] For instance, the APCO website indicates it is closed on several statutory holidays weekends, including Canada Day weekend and for one week in August.

[6] The mother had asked for all exchanges to take place in London in her trial management brief filed in September 2023. Her vertigo became an additional reason to ask for this relief.

[7] The court notes that there is jurisprudence the person’s fear may be entirely subjective so long as it is legitimate. See: Fuda v. Fuda, 2011 ONSC 154, 2011 CarswellOnt 146 (Ont. SCJ); McCall v. Res, supra. A person’s subjective fear can extend to both the person’s physical safety and psychological safety. See: Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.).