ONTARIO COURT OF JUSTICE DATE: 2024 07 31 COURT FILE No.: Toronto DFO-23-43672-00
BETWEEN:
S.C. Applicant
— AND —
M.S. Respondent
Before Justice Jennifer S. Daudlin
Heard on July 2 and 3, 2024. Reasons for Judgment released on July 31, 2024
S.C......................................................................................................................... Self-represented Samir Patel....................................................................................... Counsel for the Respondent
DAUDLIN J.:
Part One: Introduction
[1] This trial was primarily about decision-making responsibility and parenting time for the parties’ 10-year-old daughter (the child).
[2] The Applicant (the mother) seeks parenting orders granting her sole decision-making responsibility for the child, with a period of consultation with the Respondent (the father). She also requests that the father have regular parenting time, starting with supervised visits of four hours each week. These visits will transition to unsupervised and gradually increase in duration, contingent upon his successful completion of a parenting program and an anger management program.
[3] The father seeks parenting orders for joint decision-making responsibility and immediate unsupervised parenting time on alternate weekends, with a mid-week visit during intervening weeks. He also requests daily telephone or video parenting time, additional parenting time as mutually agreed upon by the parties, and for exchanges to occur at the child’s school. Additionally, he seeks reimbursement from Renew Supervision Services (Renew) for the costs incurred for supervised parenting time.
[4] The parties resolved the parenting issues of access to information for the child, primary residence, communication, relocation, travel/non-removal, government documentation, and child support between them at the outset of trial.
[5] Telephone/video parenting time was resolved mid-trial.
[6] The court conducted a focused trial of the remaining issues. The mother provided her direct evidence orally, while the father provided his orally and by affidavit. Neither party called additional witnesses.
[7] The trial was conducted in person, in both French and English, with the assistance of interpreters.
[8] The remaining issues for trial are:
(1) What parenting orders regarding decision-making responsibility and parenting time are in the child’s best interests? (2) Should the court order the father be reimbursed for amounts paid for supervised parenting time by Renew, and if so, in what amount?
Part Two: Background Facts
2.1 Family History
[9] The mother is 47 years old. She is employed full-time and works approximately fifty hours a week.
[10] The father is 44 years old and has a 20-year-old son from a prior relationship. He is a part-time political science student at the University of Toronto and receives support from the Ontario Disability Support Plan.
[11] The parties began their relationship in about November 2012.
[12] The parties have one child together. She is 10 years old.
[13] Following the birth of their child, in mid-August 2014, the parties moved in together. They separated on January 1, 2016.
[14] The child has always lived with the mother.
[15] Between their separation in January 2016 and February 2023, the child generally spent parenting time with the father on alternating weekends and as otherwise arranged between the parties.
[16] On February 24, 2023, during a disagreement between the parties about the location of the parenting exchange, the father contacted the police. When the police spoke with the child, she expressed reluctance to go with her father, stating she was fearful of him and that he sometimes hit her when he was angry. After police reassured the mother and child, parenting time proceeded. When the child returned from the weekend parenting time, she reported to her mother that her father had hit her, accusing her of lying to the police about being afraid of him. The father acknowledges hitting the child for this reason.
[17] Since then, the father has had parenting time with the child six times: on June 3 and 24, 2023, supervised by Renew; twice during his hospitalizations in September and November 2023; on June 16, 2024, for father’s Day; and once more a week later at the child’s recital.
2.2 Police Involvement
[18] The parties had a difficult relationship. Each alleged the other was abusive throughout.
[19] The conflict between the parties persisted after their separation, with police involvement on at least four occasions: in 2019, 2020, 2021, and 2023. No criminal charges were laid following any police intervention between the parties.
[20] The mother has no criminal record or outstanding charges.
[21] The father has a criminal record spanning from 2011 to 2024, including convictions for:
(1) 2011: Domestic Assault. Disposition: 6-months’ incarceration. (2) 2012: Domestic Assault. Disposition: 6-months’ incarceration. (3) 2017: Uttering threats. Disposition: 12-months’ probation. (4) April 18, 2024: Uttering threats and voyeurism. Disposition: Charge of extortion withdrawn. Sentencing to be completed.
[22] All the complainants were former intimate partners of the Respondent.
2.3 History of Litigation
[23] The mother filed a family law claim in Brampton in 2017 but abandoned it after unsuccessful attempts to serve the father.
[24] On March 9, 2023, the mother issued an Application for decision-making responsibility, travel and government documentation dispensations, parenting time, and child support. On the same date, she filed an urgent Notice of Motion seeking temporary orders for decision-making responsibility, terms of parenting, supervised parenting time for the father and a Restraining Order.
[25] Temporary parenting time orders evolved throughout these proceedings. By trial, the father’s parenting time was supervised and scheduled for two hours on alternate Saturdays at Access for Parents and Children in Ontario (APCO), with both parties sharing the fees.
[26] On April 21, 2023, the father filed an Answer seeking orders for parenting time, and the ability to travel with the child. He did not dispute any of the mother’s claims made in her Application at the time but was given leave and several extensions to amend his claim before the Trial Management Conference.
[27] On March 13, 2024, the matter was scheduled for a bilingual Focused Trial. The issues for trial would be decision-making responsibility, primary residence, parenting time, terms of parenting, retroactive and ongoing child support, and costs.
[28] The father was permitted to defend against the mother’s claims and seek orders for decision-making responsibility, primary residence, and parenting time, despite not having amended his pleadings.
[29] The court ordered that evidence in chief was to be presented by affidavit, with timelines and guidelines for filing trial materials provided.
[30] The mother did not comply with the Focused Trial Endorsement and did not file materials in advance of the trial.
[31] The father retained counsel who assisted the court by preparing and filing the Trial Record.
[32] The father brought an additional claim for reimbursement of costs for Renew supervision services, not contemplated in the Focused Trial Endorsement. The father’s trial materials were otherwise filed as ordered.
[33] On July 2, 2024, and July 3, 2024, the parties executed and filed partial final Minutes of Settlement. The terms agreed to will be incorporated into the court’s order.
Part Three: Parenting Issues
3.1 Legal Considerations
3.1.1 – Applicable Legislative Provisions and General Principles
[34] 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;
[35] Section 20 of the Act reads as follows:
Equal entitlement to decision-making responsibility
20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to decision-making responsibility with respect to the child.
Rights and responsibilities
(2) A person entitled to decision-making responsibility with respect to a child has the rights and responsibilities of a parent in respect of the child, and must exercise those rights and responsibilities in the best interests of the child.
Authority to act
(3) If more than one person is entitled to decision-making responsibility with respect to a child, any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child.
If parents separate
(4) If the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other, the right of the other to exercise the entitlement to decision-making responsibility with respect to the child, but not the entitlement to parenting time, is suspended until a separation agreement or order provides otherwise.
Parenting time
(5) The entitlement to parenting time with respect to a child includes the right to visit with and be visited by the child, and includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education.
Marriage of child
(6) The entitlement to decision-making responsibility or parenting time with respect to a child terminates on the marriage of the child.
Entitlement subject to agreement or order
(7) Any entitlement to decision-making responsibility or parenting time under this section is subject to alteration by an order of the court or by a separation agreement.
[36] 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.
[37] 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 Act. The court has considered these factors, where relevant.
[38] 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.
[39] 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:
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; (d) the history of care of the child; (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (g) any plans for the child’s care; (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child; (j) any family violence and its impact on, among other things, (k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
[40] The list of best interests considerations in the Act is not exhaustive. [1] 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. [2]
[41] 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. [3]
[42] Family violence has been defined and given heightened importance as a best interests factor in the recent amendments to the Act. [4] Violence need not be physical. Emotional and psychological abuse can have a devastating impact on a child. [5]
[43] A child’s direct or indirect exposure to family violence is itself recognized as family violence and a form of child abuse. Exposure to domestic violence, and corporal punishment (including slapping and hitting) are recognized as forms of violence that impact children uniquely. [6]
[44] Denigrating your spouse in front of the children fits within the definition of family violence. [7]
[45] Regularly engaging in behaviour that has the effect of undermining the other parent’s authority or influence and alienating the child from that parent is family violence. [8]
[46] 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:
Parenting Orders and Contact Orders
28 (1) The court to which an application is made under section 21,
(a) may by order grant, (i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2), (ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or (iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3); (b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and (c) may make any additional order the court considers necessary and proper in the circumstances, including an order, (i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child, (ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child, (iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court, (iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court, (v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify, (vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or (vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.
Allocation of decision-making responsibility
(4) The court may allocate decision-making responsibility with respect to a child, or any aspect of it, to one or more persons.
Allocation of parenting time
(5) The court may allocate parenting time with respect to a child by way of a schedule.
Parenting time, day-to-day decisions
(6) Unless the court orders otherwise, a person to whom the court allocates parenting time with respect to a child has exclusive authority during that time to make day-to-day decisions affecting the child.
Parenting plan
(7) The court shall include in a parenting order or contact order any written parenting plan submitted by the parties that contains the elements relating to decision-making responsibility, parenting time or contact to which the parties agree, subject to any changes the court may specify if it considers it to be in the best interests of the child to do so.
Right to ask for and receive information
(8) Unless a court orders otherwise, a person to whom decision-making responsibility or parenting time has been granted with respect to a child under a parenting order is entitled to ask for and, subject to any applicable laws, receive information about the child’s well-being, including in relation to the child’s health and education, from,
(a) any other person to whom decision-making responsibility or parenting time has been granted with respect to the child under a parenting order; and (b) any other person who is likely to have such information.
[47] Subsection 33.1 (2) of the Act addresses the importance of the parties protecting children from conflict. It reads as follows:
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.
3.1.2 – Decision-making Responsibility
[48] In deciding on the appropriate decision-making responsibility regime, the court is required to consider all possible frameworks, and not simply those proposed by the parties. The ultimate goal in crafting an appropriate decision-making regime is to promote the child’s “right to grow up within a parenting regime that is co-operative and effective, where decisions are made in a child-focused way and with the least amount of acrimony and stress.” [9]
[49] The Ontario Court of Appeal in Kaplanis v. Kaplanis sets out the following principles in determining whether a joint custody (decision-making responsibility) order is appropriate:
(1) There must be evidence of historical communication between the parents and appropriate communication between them. (2) It can’t be ordered in the hope that it will improve their communication. (3) Just because both parents are fit does not mean that joint custody should be ordered. (4) The fact that one parent professes an inability to communicate does not preclude an order for joint custody. (5) No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise, they must be able to be addressed on an ongoing basis. (6) The younger the child, the more important communication is.
[50] 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. [10] 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. [11]
[51] In Bennett v. Burns, 2018 ONSC 5443, the court wrote:
Joint custody is more than just a “feel good” label. It entails mutual rights and mutual responsibilities. Joint custody is appropriate where parents have the ability and willingness to work together – to efficiently and amicably plan and problem-solve – for the benefit of the children. But joint custody is not appropriate where the absence of clear decision-making authority will lead to interminable power-struggles, impasse and paralysis. With high-conflict parents, the absence of a “tie-breaking vote” can have devastating consequences for vulnerable children who don’t want to – and shouldn’t have to – get caught in the middle.
[52] Mutual trust and respect are basic elements for a joint custody order to work effectively. [12]
[53] In the case of S.S. v. K.S., 2013 ONCJ 432, 2013 CarswellOnt 10801, the court wrote that courts should assess the dynamics of a family when determining if a joint custody 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.
[54] A party’s failure to financially support their children in a responsible manner may militate against an order for joint decision-making responsibility, as this reflects poor judgment and an inability to prioritize the child’s interests and needs. [13]
[55] Ultimately, the court must determine the decision-making order that is in the child’s best interests.
3.1.3 – Parenting Time
[56] The test for determining parenting time is also what order is in the best interests of the child.
[57] 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.
[58] The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being. Moreover, the child has a right to have contact with both parents. [14]
[59] 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.
[60] The party who seeks to reduce normal access 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. [15]
[61] Failure to adhere to court orders and refusal to pay child support go to the very question of a parent’s ability and willingness to act in the best interest of the children. A parent cannot ignore the financial needs of the children and then ask a court to accept that they are capable of acting in the best interest of the children if given increased parenting time with the children. [16]
[62] Where a parent was chronically late in picking up the child, it was appropriate to have exchanges take place at custodial parent’s home. [17]
[63] The person seeking supervised access bears the burden of establishing that supervision is necessary. [18]
[64] Supervised access is not intended to be a long-term arrangement for a child. It is beneficial for children who require gradual reintroduction to a parent, or whose safety requires it until such time as the parent is sufficiently rehabilitated and a child is no longer in danger of physical or emotional harm. [19]
[65] Supervised access is usually a temporary arrangement. However, when the court does not expect the risks addressed by supervision to diminish, it is appropriate to order long-term supervision of access. [20]
3.2 Positions and Evidence of the Parties
3.2.1 – The Mother
[66] The mother described experiencing family violence, which affected both herself and the child, with several instances of them being subjected to or threatened with violence by the father.
[67] The mother reported verbal abuse from the father, including derogatory names such as “bitch” and “prostitute,” and mentioned his confrontational and controlling behaviour, which made communication and joint decision-making impossible.
[68] The mother stated that the father frequently created problematic situations during parenting time exchanges, such as calling at the last minute to arrange pick-ups, causing stress and confusion. On at least one occasion, he called the police because the mother could not meet his last-minute schedule changes.
[69] The mother testified that when the father does not get his way, he throws tantrums, calls her names, threatens her, hangs up the phone, redirects his anger towards the child, and uses the police to get what he wants. For example, in June 2019, when the mother attended the parenting exchange using her boyfriend’s car, the father refused to release the child into her care and called the police to make false allegations of sexual assault of the child against the boyfriend.
[70] The mother outlined how the father resisted her decisions regarding the child’s education and extracurricular activities, objecting to the child being enrolled in a French school, gymnastics, and dance unless these activities were in his area. He also would not allow the mother to travel to Montreal to visit her family with the child.
[71] The mother said that the father did not follow medical recommendations for the child, such as refusing prescribed medicine for constipation, despite the mother’s efforts to manage the child’s health according to the doctor’s advice.
[72] The mother stated that the father insisted on having the final say in all matters, often leading to confrontations. For example, when the mother provided a list of names of people who could pick up the child from school, the father rejected all names except those of the parents, causing further disputes.
[73] The mother said the father’s confrontational behaviour extended beyond her to third-party service providers, including the child’s school, doctors, daycare provider and Renew. She explained that on multiple occasions, the father created problems at the daycare, leading to disruptions in the child’s routine and care. While the mother conceded that concerns about the child’s first daycare were validated, the father’s belligerence with the daycare providers led to repeated conflicts. Due to these ongoing confrontations, three daycare providers eventually requested that the child be removed from their care, resulting in instability and inconvenience for both the mother and the child.
[74] The mother stated that the father failed to adhere to agreed-upon parenting times. Following their separation, his parenting time was irregular and inconsistent for several months. Even after a schedule was agreed upon, the father often called the mother at the last minute to rearrange pick-ups, creating stress and confusion. This unpredictability made it difficult for the mother to plan and maintain a stable routine for the child.
[75] The mother said there were multiple instances where the father did not return the child at the agreed-upon time. For example, on the weekend of February 24, 2023, the father called to say he would return the child at 9:30 pm when the return time was supposed to be 8:00 pm. When the mother refused to meet him at a corner near her home that late at night, he turned around with the child and drove home, only to drop the child off at school the next day.
[76] While parenting time was supervised by Renew, the father was late for three out of four visits. He was nearly 40 minutes late for the first visit on June 3, 2023, and more than an hour late for the second visit on June 24, 2023. The father cancelled the third visit on June 26, 2023, and Renew cancelled the fourth visit on August 26, 2023, when he did not attend more than an hour after the scheduled start time.
[77] The mother testified that she initially believed Renew had cancelled their services due to the father’s persistent lateness. However, she later learned of his financial dispute with them. Given the history of the father’s conflictual relationships with service providers, she believes this dispute may have contributed to Renew’s decision to terminate their services.
[78] Regarding the child, the mother noted three or four instances where the father hit the child on the buttocks and arms, causing redness. The mother recounts that on the last occasion, the child told her that the father hit her because she had “lied to the police” about being afraid of him and reported still being sore a few days later. These incidents have raised significant concerns for the mother about the child’s safety during the father’s parenting time.
[79] The mother acknowledged several positive aspects of the child’s relationship with the father, mentioning that they communicate four to five times per week.
[80] The mother believes that the father can be a very good parent when he is not angry and out of control, despite the challenges. She expressed hope that parenting classes and anger management would help him improve.
[81] The mother noted that in public and supervised settings, the father behaves decently and is nice to the child, and that the child enjoys these visits. She also mentioned that the father is capable of teaching the child moral responsibility and that the child would enjoy parenting time and overnights if the father’s behaviour improved.
[82] The mother hopes for the father’s improvement and recognizes his potential to be a positive influence in the child’s life when he is in a stable state. However, she is apprehensive about his willingness and ability to make the necessary changes.
[83] The ongoing issues with the father’s behaviour are making the mother feel exhausted and drained. She described feeling overwhelmed by the constant conflicts and aggressive communication, which have persisted for more than eight years. She says she works fifty hours a week and finds that she has no energy left to deal with the father’s confrontational, controlling, belligerent, and demeaning actions. She is tired of the verbal abuse and the need to continuously address disputes over parenting time, medical decisions, and the child’s activities.
[84] The mother’s frustration is exacerbated by the father’s refusal to cooperate or adhere to agreements, leading her to feel that no understanding or agreement is possible between them. She says the father agreed to give her “whatever she wanted” in mediation, if she agreed to withdraw the case, then harassed, threatened, and belittled her when she refused.
[85] The mother feels that written communication might help mitigate some of these issues, as it would force the father to think before responding.
[86] The mother feels unsupported and alone in managing all responsibilities related to the child, despite her efforts to prioritize the child’s best interests. She believes that the father’s actions are more about control than the child’s welfare, contributing to her sense of helplessness and frustration.
3.2.2 – The Father
[87] The father presented a very different version of events, characterizing his relationship with the mother as tumultuous, marked by her emotional and temperamental behaviour. He described her as controlling, loud, and prone to violent public outbursts, making the situation embarrassing and difficult for him.
[88] In his Form 35.1 Affidavit, the father attested that the mother physically attacked him at least five times during their relationship, leaving him scratched, bruised, and shocked. He portrayed the relationship as strained and challenging, especially in the context of co-parenting their child.
[89] The father described his communication with the mother as challenging and often conflict-ridden, mentioning frequent disagreements over various issues, including the parenting exchange venues for their child. He noted that the mother had issues with him attending her residence for pick-ups, and he did not want her coming to his residence due to her tendency to create public scenes.
[90] The father blamed the mother for their poor communication. He said that she made unilateral decisions about their child without consulting him and restricted his parenting time and access to information about the child. He is concerned about the mother’s influence on the child and her attempts to distance him from her.
[91] The father raised concerns about the mother’s parenting practices, such as her emphasis on vanity and materialism, and her lack of attentiveness to their child’s safety and well-being. He provided examples of this behaviour, such as the mother encouraging the child to strive to remain skinny to look pretty, wear makeup, and find men who can support her financially as she matures.
[92] The father contrasted this with his own approach, which he said focuses on teaching the child to value a partner for their support and how they make her feel, rather than for what they can buy for her. He stated that decisions for the child in the past had been made with him expressing a willingness to include the mother, indicating a collaborative approach. He mentioned that he had involved the mother in decision-making processes and brought matters forward to her. However, she had not reciprocated, blocking texts, refusing to respond, and keeping information from him that would allow him to make decisions for the child.
[93] The father also mentioned that the mother had laxatives prescribed for the child to assist with bowel movements, which he believed was unnecessary and could have been addressed through a healthier diet. He intimated in his trial affidavit that the mother obtained the laxatives to the child to encourage weight loss.
[94] The father expressed concerns about the mother’s ability to provide adequate supervision for the child, citing an incident on June 12, 2019, where he says the child (then approximately 5 years old) reported sharing a bed with the mother’s then-boyfriend. He reported the incident to the police, but no charges were laid, as he feels the child appeared to have been coached by the mother on what to say.
[95] The father says he feels disconnected from the child’s current life due to limited information provided by the mother. He claims he stays informed about the child’s health by talking directly to her and consulting with her doctor. However, he states that the mother does not provide him with updates about the child, and he has not received information directly from the child or the school. He attributes part of this difficulty to a language barrier, as the school communicates in primarily in French. He has made efforts to contact the school and get documents translated into English but has found the process challenging.
[96] The father also shared that the child has communicated her desire for him to attend events and has requested visits, indicating that she values time spent with him. Overall, while he faces obstacles in obtaining detailed information, he remains engaged and attentive to the child’s needs and well-being.
[97] When presented with text messages the mother relied upon to show the father’s abusive and manipulative communication, and the agreement she alleged he had made to give her decision-making responsibility in exchange for withdrawing proceedings, the father indicated that he agreed to some of the mother’s terms if she withdrew the case. Specifically, he mentioned that he would sign for the child’s passports if the mother dropped the case. However, he denied ever telling her that he would give her sole decision-making responsibility if she closed the case. He later submitted that the tone and language he used with the mother, was measured and reasonable in the circumstances.
[98] The father noted the mother recently allowed him to have more parenting time, albeit on short notice, despite communication challenges. He stated he feels reluctant to attend events where the mother will be present due to her propensity for manipulation; however, he remains committed to his daughter’s well-being and strives to stay involved in her life notwithstanding the various obstacles.
[99] The father stated he has taken several steps to address his shortcomings and improve his situation. On May 19, 2024, the father completed a nine-hour online Anger & Relations Program through the Salvation Army, where he says he learned techniques such as pausing and taking a breath to manage his emotions. He expresses confidence in his ability to communicate better with the mother in the future.
[100] For his mental health, the father has sought help for depression, receiving regular assistance from a psychologist and the Centre for Addiction and Mental Health (CAMH), and continues to see a psychologist approximately every two weeks. He stresses that his mental health challenges should not be limiting factors to joint decision-making responsibility or parenting time.
[101] Going forward, the father has expressed a willingness to include the mother in decision-making and consider her opinions. H emphasizes that he will carefully analyze each situation to make an informed decision.
[102] The father acknowledged the incident in February 2023, where he spanked the child for lying, which the mother reported. He admitted to the event but claimed the severity was exaggerated. He explained that the spanking was a disciplinary action for the child lying to the police, which he believed she had been instructed to do by the mother’s friend. He emphasized that his disciplinary measures were mild, asserting that he only spanked the child on rare occasions and did not use excessive force.
[103] The father referred the court to section 43 of the Criminal Code and highlighted the absence of any criminal charges against him. He criticized the court orders that heavily restricted his parenting time based on these allegations, emphasizing that his actions were intended as a corrective measure and were not excessively forceful or meant to cause harm, thus reasonable under the circumstances.
[104] The father views spanking not as an ideal form of discipline, but as a useful and sometimes necessary corrective tool to address certain behaviours, in addition to other disciplinary measures, such as time-outs and grounding.
[105] The father expressed concern about being cut off from the child and information about her and feared the mother’s control over information and decision-making if she obtained sole decision-making responsibility. He stated that the court should not make an order for sole decision-making responsibility because it would be unfair and unjust, arguing he had done nothing wrong to warrant such an order. He pointed out his efforts to support the child financially and emotionally, highlighting his involvement in her activities, such as visits to art galleries and amusement parks.
[106] The father argued against the court ordering supervised parenting time on the grounds that it would be unjust and unnecessary. He emphasized that he has not done anything to break any laws, including those regarding corporal punishment, and that he has complied with all legal and child protection requirements. He says that the child does not like supervised visits and that imposing such a restriction would be unfair to both him and the child.
[107] The father also mentioned that supervised visits would disrupt the relationship he is trying to build with the child and that he has demonstrated a commitment to her well-being. Additionally, the father expressed confidence in his parenting abilities and indicated that there are no valid reasons to limit his time with the child through supervision.
3.3 Findings of Contested Facts
3.3.1 – Family Violence – The Mother
[108] The court found the mother’s evidence regarding the father’s family violence, controlling, coercive, and abusive behaviour towards her to be credible.
[109] The court also found the mother’s testimony credible that the father often behaved in this manner in front of the child.
[110] The mother was a compelling witness. She described the father’s treatment of her in a detailed manner. Reliving these incidents was clearly upsetting to her, and she was understandably emotional as she gave her evidence. Her distrust of the father and exhaustion from trying to co-parent with him were palpable. She has clearly struggled with managing this relationship and protecting the child from the dysfunctional dynamics she has with the father.
[111] The evidence supported the mother’s contention regarding the father’s difficult nature and controlling behaviour. His actions further corroborated the mother’s testimony.
[112] For example, the tone and language of the text messages from the father to the mother can be described as confrontational, aggressive, and accusatory. The father’s messages are often filled with harsh language and insults, calling the mother “ignorant,” “lazy,” and “selfish,” and accusing her of being “stupid” and making things worse. He frequently uses exclamation marks and all caps to emphasize his anger and frustration, such as “Go drop the fucking shit NOW!?!?!” “I won’t agree to ANYTHING if ur not going to cancel this as we agreed!!!!”
[113] The father’s messages are also manipulative and demanding. He repeatedly demands that the mother take specific actions, such as signing forms or cancelling certain proceedings, framing his demands as ultimatums, and indicating that she must comply to avoid negative consequences.
[114] The father portrays himself as the reasonable party while depicting the mother as irrational, greedy, and obstructive. He positions himself as the victim of the mother’s actions while demanding her compliance and reinforces his self-perception as the one in the right. For example, “U know how bad u look and ur trying to make me look bad! Ur destroying all of us! I am always right u need to see this, I am studying these things! U have no idea!”
[115] In addition, the father consistently blames the mother for the ongoing issues, stating that she is responsible for his supervised visits and other legal troubles. He insists that she needs to fix the situation and accuses her of trying to trap him and their daughter, as well as of not communicating effectively or logically.
[116] The father’s messages are threatening and intimidating. He makes several threats about the consequences if the mother does not comply with his demands. For instance, he says, “U tried to take my daughter once and as a result u got what was coming to u, what u think is going to be karma now!?!”, “U think I am joking, u better go cancel this shit NOW!!” and “If u want to go to court that’s fine but it’s not going to go over well for u!”
[117] Furthermore, the messages are disrespectful and derogatory, containing numerous derogatory terms and disrespectful comments about the mother’s capabilities and character. Examples include “U should’ve never been a mother!”, “Ur a selfish ignorant no good lying individual” and “[S.C.] u have sex for money. That’s a whore”.
[118] The court accepts the mother’s evidence that the text messages are just a snapshot of the father’s hostility and intimidation, aimed to pressure her into complying with his demands. The language is loaded with emotional manipulation, threats, and personal attacks, reflecting an inability to communication effectively, respectfully, and responsibly.
[119] Observing the interaction between the parties during the trial, the court concludes that the father’s hostility towards the mother extends beyond text messages. His assertion that their strained and challenging co-parenting relationship is almost entirely the mother’s fault is unfounded. His written and oral testimony during the trial about the mother contradicted this claim.
[120] The father described the mother as deceitful, manipulative, emotionally dysregulated, violent, controlling, alienating, ignorant, inept, a neglectful parent, and solely responsible for any communication difficulties and conflicts between them. However, he provided no corroborating evidence to support any of these claims.
[121] Under examination, the father frequently diverted to accuse the mother, even when the questions were unrelated. He often needed redirection to respond properly, prioritizing his narrative over relevant answers. His statements regularly strayed from the questions asked.
[122] Overall, the father denied any wrongdoing, attacked the mother, and then accused her of the very things of which she accused him. On the rare occasion when the father acknowledged any behaviour that could be perceived as inappropriate, such as the tone of his text messages to the mother or spanking the child, he justified his actions as reasonable responses to the behaviour of others.
3.3.2 – Family Violence – The Child
[123] That father uses corporal punishment to discipline the child. This is not disputed.
[124] The father views spanking as a useful and necessary corrective tool of last resort. However, the evidence does not support his claim.
[125] The events of the weekend of February 24, 2023, offer significant insight into the father’s disciplinary methods.
[126] The father recounted that he was delayed in picking up his child for parenting time and was informed by the mother, who had to work, that the child could be picked up at her friend’s house in Pickering. However, the mother’s friend subsequently provided an address in Mississauga. When the father contacted the mother’s friend and directed her to return the child to him immediately, she refused, prompting him to involve the police.
[127] When the police spoke to the child, the child expressed fear of the father, reporting that he hit her when he was angry. However, the father said that later, while at his home during his parenting time, the child disclosed that the mother’s friend had instructed her to lie to police. His response to the child’s admission of lying was to spank her.
[128] During cross-examination, the father’s chronology of events changed. He admitted that he did not initially intend to spank the child when he picked her up for parenting time following her conversation with the police. However, he had already decided to punish her. He informed the mother of this intention when they spoke by phone during the drive home with the child from the parenting exchange.
[129] The mother confirmed this conversation, recounting that the father asserted his authority to discipline the child in the manner he felt appropriate despite her warnings not to hit the child. She said he told her, “I’m the father. You don’t tell me what to do.” When she later confronted him after the child reported being hit, the father told her, “I’m the father and can do what I want.”
[130] The father testified that he spanked the child because the mother’s friend had told her to lie. When asked how he could be certain that the mother’s friend told the child to lie to the police, the father explained that he knew the mother’s friend couldn’t be trusted, so he chose to believe the child’s account that the mother’s friend had instructed her to lie to the police and that she complied.
[131] When asked what other disciplinary tools he tried before hitting the child, the father explained that he did not opt to use any other form of discipline to correct the behaviour of lying because “at that point it was redundant”. He had already discussed the issue of lying with the child before and had warned her that she would be punished for it.
[132] The court finds, therefore, that the father’s decision to spank the child was not a spur-of-the-moment reaction but rather a predetermined consequence he had communicated to the child, and that he followed through on.
[133] The court accepts the mother’s evidence that the events of February 2023 are not isolated. The father’s justification for his actions is that they do not rise to the standard of criminality as set out in the Criminal Code, not only downplays the severity of the use of corporal punishment but underscores that the father does not perceive his behaviour as problematic or harmful.
[134] This is further supported by the court's previous findings that the father has engaged in family violence against the mother, including threatening, abusive, and coercive and controlling behaviour. Such a history of family violence, coupled with the father’s insistence on his authority to hit the child, despite warnings from the mother, provides a broader context for the father's actions, reinforcing the mother's evidence that these incidents are part of an ongoing pattern of abusive behaviour and indicating a risk of future occurrences.
[135] That a spanking does not meet the standard of criminality under the Criminal Code is not relevant. Conduct deemed “reasonable under the circumstances” as a criminal defence can still be excessive when it comes to determining the best interests of a child in circumstances that fall short of constituting a crime.
[136] The use of spanking as a form of discipline is not to be condoned. It constitutes family violence, the negative consequences of which on a child can be serious and long-lasting.
[137] The court finds the father has engaged in family violence against the child.
3.3.3 – Accountability
[138] The court finds that the father’s pattern of behaviour with the mother is not isolated. In his Form 35.1, the father justified each of his past criminal convictions. His explanations reveal a consistent pattern of attributing blame to others and portraying himself as a victim of circumstance. Each incident is framed in a way that minimizes his responsibility and highlights the alleged actions of others. By way of example:
(1) 2011 Domestic Assault Conviction: The father claimed he was defending himself against an ex-girlfriend who choked him. He implied that his actions were purely defensive, but the situation escalated to the point where she felt compelled to throw him out and have him charged. (2) This explanation attempts to justify the father’s actions as self-defence and to cast doubt on the validity of the assault charge, despite the conviction. (3) 2012 Domestic Assault Conviction: The father attributed this charge to his previous legal troubles, suggesting that the second ex-girlfriend took advantage of his vulnerable legal position. (4) By mentioning he was already out on bail and subsequently jailed for breaching bail conditions, the father shifts focus from the assault itself to the context of his legal status and attempts to reverse culpability from himself to the victim. (5) 2017 Uttering Threats Conviction: The father described a scenario where he was trying to avoid a confrontation with a female employee with whom he had an intimate relationship. He claimed she threw a water bottle at him and then falsely accused him of threats. (6) This explanation aims to portray the complainant as the aggressor and the father as someone unfairly targeted. (7) 2021 Uttering Threats and Voyeurism Conviction: The father narrated a complicated situation involving an intimate relationship with a married woman who became pregnant. He suggested that his attempt to reveal the truth about the child’s paternity led to the accusation of extortion. (8) This account attempts to present the fathers actions as morally justified and the allegations and subsequent conviction as a reaction to his honesty.
[139] In these proceedings:
(1) The father’s 2019 allegations of sexual assault of the child by the mother’s boyfriend: The father attempts to shift blame onto the mother and her influence over the child, minimizing his own involvement and the police’s findings. He expressed frustration with the investigation’s outcome, believing the child was coached by the mother, despite the police report indicating his actions and comments contributed to the sexual abuse allegations being deemed unfounded. (2) In his trial affidavit, the father’s claimed police did little to investigate and believed he fabricated the incident. His testimony conflicts in part with the police report. (3) According to the police report, investigators spoke to the father, and he: (a) Denied instructing the child to lie about being sexually abused. (b) Acknowledged curiosity about who had access to the child. (c) Admitted questioning the child about her mother’s male friend, to block him from interacting with his daughter. (d) Admitted he “hated his ex-wife’s guts”. (e) Claimed the mother was making his life difficult and putting ideas in the child’s head. (f) Admitted telling the child to “not say what Daddy told you, but to tell police the truth.” (g) Insisted the police should investigate the boyfriend for sexual abuse, not question him about his conversations with the child. (h) Was cautioned about his remarks to the child. [21] (4) 2023 Orders Suspending Parenting Time: The mother submitted an urgent Notice of Motion on March 9, 2023, requesting temporary orders for decision-making responsibility, specific parenting terms, supervised parenting time for the father, and a Restraining Order. Justice Sherr heard the Motion, without notice, in chambers on March 13, 2023, and made temporary without prejudice orders designating the mother as the primary residence provider and allowing the father parenting time at the mother’s discretion. Justice Sherr noted: “This order will be reviewed fresh on the next court date as the court will want to hear the father’s version of events.” (5) On March 31, 2023, Justice Sherr presided over the return of the mother’s Motion, considering both affidavit and oral evidence. The father was not present due to unsuccessful personal service attempts by the mother. Justice Sherr extended the March 13, 2024, temporary without prejudice orders, and restricted the father from attending the child’s school or the mother’s home. The father was prohibited from contacting or communicating with the child unless permitted by the mother, who had discretion over the level of supervision for parenting time. Additionally, substituted service of the Applicant and Motion materials on the father and police enforcement of the parenting order was authorized. (6) Rather than acknowledging any personal responsibility or contributing factors, the father externalizes blame, criticizing the court as being unfair for making orders in his absence and without proper service, and, moreover, making orders that were unfounded and excessive, in the absence of any criminal charges against him for corporal punishment, or family or criminal conditions barring him from attending the mother’s home or the child’s school. (7) The court rejects the father’s submission and finds that he was aware of the proceedings as early as March 19, 2023, when he told the mother: “U tried to take my daughter once and as a result u got what was coming to u, what u think is going to be karma now!?!”, but no later than March 25, 2023, “U think I am joking, u better go cancel this shit NOW!!”, and intentionally chose not to attend or respond to the Motion. (8) The text messages he sent to the mother indicate a deliberate attempt to intimidate her into withdrawing her case against him. Therefore, the court concludes that the father acted with the intention of coercing the mother into withdrawing the proceedings. (9) Supervised Parenting Time: On April 11, 2023, Justice Sherr ordered supervised parenting time of three hours per week through Renew at the father’s expense. This order was later amended on June 13, 2023, by Justice Sullivan, who allowed the existing arrangement to continue but varied it to permit supervised parenting time with Renew until APCO could accommodate, with the father covering APCO costs. On December 13, 2023, Justice Sherr revised the father’s supervised parenting time to alternate Saturdays for two hours at APCO, with both parties sharing the fees. (10) No supervised parenting time occurred after June 24, 2023. (11) The father’s evidence was that visits with Renew were terminated due to a billing dispute. He alleged he was charged for services he believed he should not have been. Subsequently, the court directed him to use the services of APCO, with shared fees. However, on April 17, 2024, APCO informed him that the mother had refused to pay the supervision fees, hindering his attempts to spend more time with his daughter. (12) The father did not reference Justice Sullivan’s order of June 13, 2023, requiring him to pay APCO fees. He also made no mention of the Renew visit he cancelled on June 26, 2023, or the missed visit on August 26, 2023. After being informed by APCO in April 2024 that the mother would not pay, he did not indicate any effort made to pay the fees himself. He did not seek to vary the supervised parenting orders, despite being given multiple opportunities. [22] (13) The court finds that the father has consistently failed to comply with multiple orders regarding supervised parenting time. His inaction suggests a lack of diligence and commitment to maintaining his parenting time, particularly when he disagreed with the terms. The omissions in his testimony are interpreted as an attempt to mislead the court by selectively presenting information that supports his position while neglecting to mention key orders and missed visits. These actions undermine his credibility and accountability and ultimately demonstrate a failure to prioritize the best interests of the child.
[140] Overall, the father’s explanations both in these proceedings and in relation to his criminal proceedings consistently downplay his culpability and suggest that he was either defending himself or acting out of a sense of justice. This pattern of deflecting responsibility and casting himself as a victim raises questions about his credibility and capacity for honest self-reflection and change.
3.3.4 – Non-Compliance with Other Court Orders
[141] The evidence also revealed that the father abused the mother financially after their separation. While the father pointed out his paying for activities for the child such as visits to art galleries and amusement parks, he has never paid child support in the eight years since separation, nor since the consent order for child support made on May 4, 2023.
[142] The father’s financial affairs are not complicated, yet he delayed in providing disclosure, resulting in the court having to make financial disclosure orders and repeated orders for compliance. The father did not comply with these orders until trial.
[143] The court does not accept the mother’s evidence credible that she did not understand Justice Sherr’s order dated December 19, 2023, that she contribute to the APCO fees. The order was clear and unambiguous. The mother failed to comply with the order further delaying the resumption of the father’s parenting time.
[144] Both the mother and the father repeatedly failed to comply with procedural orders and directions.
[145] The mother failed to comply with any of the orders related to this trial.
3.3.5 – Parenting History
[146] The father’s lack of credibility regarding the family violence issue impacted his credibility about the parenting history. The court preferred the mother’s evidence on these issues, although it finds that, at times, the father had more parenting time than the mother testified. The court finds that:
(1) Between January 2016 and February 2023, the child generally spent parenting time with the father on alternating weekends and as otherwise arranged between the parties. (2) Between February 24, 2023, and the trial, the father has had parenting time with the child six times. (3) The child has consistently had telephone/video calls with her father 4-5 times per week.
[147] The court finds that the gaps in parenting time between February 2023 and December 2023 are attributable to the father due to:
(1) His threatening and intimidating behaviour of the mother. (2) His lateness to parenting time at Renew Supervisions Services, and a financial dispute with them resulting in the termination of their services. (3) His refusal to pay for APCO services after that was ordered on June 13, 2023.
[148] Between December 2023 and trial, the lack of parenting time is attributed to both parties, because:
(1) Had the father complied with Justice Sullivan’s order of June 13, 2023, and paid for APCO services, either the services would have continued as varied by Justice Sherr uninterrupted, or his parenting time might have already expanded to unsupervised. (2) The APCO intake process was not completed due to the mother’s refusal to pay the APCO service fees as ordered. (3) The father took no steps to compel the mother’s compliance with the court order or to pay the fees himself.
3.3.6 – Father-Child Relationship
[149] It was evident to the court how much the father loves the child. There is no dispute that the child loves the father and values their time together.
[150] The father supports the child’s Black, Haitian, and Guyanese heritage by engaging in activities that celebrate these cultures. He ensures the child is exposed to cultural traditions, languages, and values, fostering a strong sense of identity and pride in their heritage.
[151] The court finds that the mother has worked very hard to facilitate the father’s relationship with the child, notwithstanding the many challenges in dealing with him and her failure to contribute to the cost of supervised parenting time. The court rejects the father’s evidence that she is trying to destroy it.
[152] The mother has been flexible about the father’s parenting time. She has accommodated the child’s requests to see the father. She has agreed to have the child visit him at the hospital, in the community, and even to have him join them at family and school events. Her evidence was noteworthy, as it did not criticize his parenting ability, only his use of corporal punishment. She recognized the importance of his relationship with the child and acknowledged the child’s love for her father and desire to see him, even where that evidence was detrimental to her claims.
[153] The evidence shows that the father generally treats the child well and is capable of meeting the child’s basic needs during his parenting time. However, he demonstrates little insight into how his poor treatment of the mother and use of corporal punishment can adversely affect the child.
[154] The court has no independent evidence regarding the views and opinions of the child. While there is no evidence other than the mother’s testimony that the child was ever fearful of the father, it is reasonable to assume that she may have been, given the father’s use of corporal punishment in February 2023.
[155] Even if that assumption is accepted, there is no evidence to suggest that this fear persists today. On the contrary, evidence indicates that the child is not fearful; she seeks out a relationship with her father and values it. She wishes to communicate with him almost daily and requests to spend time with him and to have his presence at her special events.
3.3.7 – History of Decision-making
[156] The court does not accept that the mother excluded the father from decision-making or accessing information about the child. The father’s evidence contradicted this. He testified to communicating with the doctor about the child’s constipation and discussing it with the mother. He also admitted that, despite language barriers and frustration with French communications from the school, he agreed with the child being registered in a French school and planned for her to continue her education in French. He provided no evidence that the mother interfered with his communication with the school.
[157] The evidence has demonstrated that the father has a history of threatening and abusive communications with the mother and raises concerns that he may use a joint decision-making order to control the mother and expose the child to further conflict.
[158] The father showed no remorse, accountability, or insight when confronted with his harmful messages, even after completing the Salvation Army’s Anger & Relations Program just weeks before the trial. He believes his conduct to be reasonable and justified and failed to recognize how his behaviour contributed to the conflict or could be harmful to the child.
[159] The father showed no respect for the mother and had nothing positive to say about her. When asked by the mother whether he thought her opinion mattered, the father replied, “that’s why I’m asking for joint decision-making responsibility”.
[160] The court finds that father’s response, while perhaps intending to imply that the mother’s opinion is valued, was evasive and insincere. By not directly answering whether the mother’s opinion matters, the father avoids affirming the mother’s importance in the decision-making process. It suggests a reluctance to fully acknowledge or prioritize the mother’s perspective, despite the claim of seeking joint decision-making responsibility.
[161] In his examination in chief, the father stated that his plan for decision-making would be to bring the issue to the mother. When asked during cross-examination how disagreements would be resolved between the parties if joint decision-making responsibility was order, the father answered, “I would analyze the information and make an informed decision.”
[162] Th father’s responses reveals that he sees himself as the primary decision-maker. Rather than suggesting a collaborative approach, his answer indicates a unilateral decision-making process, where he would independently analyze the information and make a decision without considering the mother’s input or seeking a compromise. It demonstrates his lack of willingness to engage in cooperative decision-making and suggests an inclination to override the mother’s perspective in situations of disagreement instead of collaborating and compromising, despite his attestations to the contrary. It is consistent with his text messages to the mother that she needs to see that he is always right.
[163] When asked, the father suggested mediation as a dispute resolution protocol but made it clear that he expected the law to enforce joint decision-making responsibility.
[164] The court finds that mediation as a dispute resolution protocol for this family is inappropriate for several reasons. The father lacks a genuine intent to collaborate or engage in cooperative decision-making. He has engaged in family violence and has used the mediation process during these proceedings to control the mother and compel her to bend to his will. Furthermore, he is a poor candidate to change his attitude or behaviour, increasing the likelihood that he would misuse the mediation process again.
[165] The court lacks confidence that the father can consistently prioritize the child’s interests over his own. Although the father loves the child and sees her as a priority, the evidence does not support his ability to reliably put her well-being above his preferences. When questioned about the child’s best interests and her views, his responses focused on his own emotions and perceptions of fairness, rather than evidence-based considerations for the child’s best interests.
3.4 Analysis
3.4.1 – Decision-making Responsibility
[166] The cornerstones of effective joint decision-making for parents include:
(1) Trusting each other’s intentions and decisions regarding the child’s welfare. (2) Maintaining open and respectful lines of communication to discuss important matters concerning the child. (3) Respecting each other’s opinions and perspectives regarding the child’s upbringing, even though the parents are separated. (4) Reaching mutually acceptable decisions through compromise. (5) Striving for consistency in the child’s life by ensuring that rules, routines, and expectations are similar in both households. (6) Prioritizing the child’s best interests and well-being above all else in all decisions.
[167] Even without the court’s findings of family violence, a joint decision-making responsibility order in this case would not be feasible.
[168] The parties harbour a deep distrust of each other. For a joint decision-making responsibility order to be viable for the child, there must be a modicum of trust and respect. That is absent in this case.
[169] Both the mother and the father acknowledge significant communication challenges, leading to frequent conflicts often in front of the child and sometimes involving her. They both express concern for the child’s well-being and agree that these ongoing conflicts have affected her.
[170] The court’s findings of family violence reinforce its conclusion that a joint decision-making responsibility order is not in the child’s best interests. Additionally, it indicates that allocating any decision-making responsibility to the father, is not advisable. There is a significant power imbalance between the parties; the father is controlling, coercive, and abusive of the mother. A joint decision-making responsibility order, or any allocation of decision-making responsibility to the father, would pose too high a risk of exposing the mother and the child to family violence and escalated conflict.
[171] The court determines that it is in the child’s best interests for the mother to have sole decision-making responsibility and for the child to reside primarily with her. The court summarizes the relevant best interest factors as outlined in subsections 24 (2), (3), and (4) of the amendments:
(1) The mother best provides for the child’s physical, emotional, and psychological safety, security, and well-being. (2) The mother has made most major parenting decisions responsibly and has consistently met the child’s needs, with the child thriving in her care since 2016. This stable arrangement should remain unchanged. (3) The child has had a stable parenting arrangement, primarily residing with the mother, and regularly spending parenting time with the father. (4) The mother is more likely to maintain a positive relationship with service providers for the child. (5) The court received no independent evidence about the child’s views and wishes, although it was agreed that the child loves spending time with the father. (6) The mother has been the victim of ongoing family violence by the father, who has been controlling, coercive, and abusive, including financially. This pattern of conduct has caused the mother to fear for the physical and emotional safety of the child. She has taken steps to limit her interaction with the father. (7) The child has often been exposed to family violence, which has the potential to emotionally harm her. (8) The child has been victimized by family violence due to the father’s parenting decisions. (9) The mother has taken steps to limit the child’s exposure to family violence. (10) The mother has facilitated and promoted the child’s relationship with the father despite considerable challenges. (11) The mother has worked hard to communicate and cooperate with the father. The father’s positive communication and cooperation are contingent on getting his way. (12) The father has taken steps to address the family violence by attending an anger management and relations program. However, any potential progress is negated by his refusal to acknowledge how his conduct could have been harmful. (13) The father is likely to utilize an order for joint decision-making responsibility to control the mother. (14) The father prioritizes his own interests over the best interests of the child, refusing to exercise supervised parenting time or pay child support. (15) The father shows no respect for court orders and is unlikely to comply with them in the future. (16) It is not in the child’s best interests to require the mother to make joint decisions with the father. (17) An order for sole decision-making responsibility to the mother is necessary to protect the child from adult conflict and family violence.
[172] The mother proposed a term requiring her to consult with the father before making any major decision regarding the child. This term is in the child’s best interests and will be ordered.
3.4.2 – Parenting Time
[173] The 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 in the care of a parent.
[174] The challenge is crafting a parenting time order that fosters the parent-child relationship and the positive features of it while protecting the mother and the child from conflict and family violence, and restabilizing the child.
[175] Based on the foregoing the court finds that it is in the child’s best interests to restore the alternating weekend parenting schedule that existed prior to the suspension of parenting time in February 2023.
[176] The court finds no reason to impose supervised parenting time. There is no current evidence of the child’s fear towards the father, and she actively seeks out and values her a relationship with him.
[177] However, the father’s unsupervised parenting time is contingent on his no longer using any form of corporal punishment as a corrective or disciplinary tool on the child going forward.
[178] The father shall not be required to complete any further anger management or parenting programs. While the court acknowledges that such programs are generally beneficial and provide parents with valuable tools for managing co-parenting challenges, their effectiveness relies on a continuing and genuine effort to promote positive change. Given the findings of family violence, the father’s history of failing to comply with court orders, and the lack of evidence of his ability to self-reflect or take responsibility for his actions, even after completing the Anger & Relations Program, the court finds that further programming for the father is unlikely to result in a positive change in his behaviour.
[179] Both parties reported that the venue of the parenting exchange was a constant source of conflict. The father’s lateness to the exchanges, including to supervised parenting time, compounded the issue.
[180] The mother works full-time, reporting that she works fifty hours per week. She is responsible for arranging transportation for the child to school, extracurricular activities, and appointments.
[181] The father is not currently working. He attends school usually two days per week, volunteers, and attends his mental health appointments.
[182] The father shall be responsible for transporting the child to and from parenting exchanges, which will occur at the child’s school as set out below. When the child is not in school, exchanges will occur at the mother’s residence.
Part Four: Reimbursement of Costs of Supervision Services
[183] The father is requesting reimbursement from Renew Supervision Services for supervision services, citing incorrect charges for visits that did not occur, specifically on June 26, 2023, and August 26, 2023.
[184] Renew Supervision Services is not a party to this proceeding and have not been provided notice of the father’s claim. In any event, this court has no authority to make the orders sought.
[185] The father’s claim is dismissed.
Part Five: Disposition
[186] For the reasons set out herein, a final order shall issue as follows:
(1) The mother shall have final decision-making responsibility for the child. (2) The mother shall inform the father with respect to any major decision regarding the child. She shall advise him of the contemplated decision in writing and within 7 days, the father shall provide her with his view in writing. If the parties do not agree, the mother will make the final decision. (3) Starting on August 9, 2024, the father shall have regular parenting time with the child on alternating weekends from Friday after school (or 6:00 p.m. from the mother’s residence when school is not in session) until Monday morning return to school (or Monday evenings at 6:00 p.m. at the mother’s residence school is not in session). (4) The father shall not exit his vehicle when exchanges occur at the mother’s residence. (5) The father shall not use corporal punishment of any kind to discipline or correct the child. If the child reports the use of corporal punishment by the father, the mother shall have leave to bring an urgent Motion, on notice to the father, to vary the terms of parenting time, including the level of supervision. (6) The terms of the Minutes of Settlement signed on July 2 and 3, 2024, shall be incorporated as part of final order. (7) A Support Deduction Order and Support Deduction Order Information Form has already been issued. (8) The father’s claim regarding the reimbursement of costs of supervision services is dismissed.
[187] Mr. Patel shall prepare the draft Order and file it with the Trial Coordinator. Approval as to form and content of the draft Order by the mother is dispensed with.
[188] If either party seeks costs, they shall serve and file written submissions by August 16, 2024. The other party will then have until August 30, 2024, to serve and file their written response (not to make their own costs request). The submissions shall not exceed 3 pages, not including any bill of costs or offers to settle. They are to be e-mailed to the trial coordinator’s office.
[189] The August 6, 2024, appearance is vacated.
[190] A French version of these reasons were released on this date.
Released: July 31, 2024 Signed: Justice Jennifer S. Daudlin
