Court File and Parties
Date: March 9, 2017
Court File No.: D90509/16
Ontario Court of Justice
Between:
P.H.
AMANDA TAERK, for the APPLICANT
APPLICANT
- and -
T.J.
ACTING IN PERSON
RESPONDENT
Heard: February 27 and 28, 2017
Justice: S.B. Sherr
Reasons for Decision
Part One - Introduction
[1] This trial was about the parenting arrangements for the parties' 7-year-old son (the child).
[2] Both parties have brought motions to change the parenting terms contained in the final order of Justice Brian Weagant, dated January 23, 2012 (the original order). The original order granted sole custody of the child to the applicant (the mother) and provided for a 4-day rotating shared parenting schedule between the parties.
[3] The mother has sought orders for various incidents of custody, and a parenting schedule where the child would be with the respondent (the father) on alternate weekends (Friday evening to Monday morning), plus one evening, in one week, and two weekdays (Tuesday to Thursday) in the alternate week. She asked for a specified holiday schedule.
[4] The father also seeks to change the original order. He asks for an order for sole custody of the child, incidents of custody and an order that the mother have the child with her on alternate weekends (Friday to Sunday). He also asked for a specified holiday schedule.[1]
[5] The court heard evidence from the parties, the father's partner and a clinical investigator from the Office of the Children's Lawyer (the clinical investigator).
[6] The issues for trial were:
a) Has there been a material change in circumstances affecting the best interests of the child since the original order was made?
b) If so, what parenting order is in the best interests of the child?
Part Two – Background Facts
[7] The mother is 37 years old. She is employed as a court reporter. She presently lives with the child and her 14-year-old son from another relationship.
[8] The father is 29 years old. He recently graduated from college with a certificate in Music Industry and Arts and Performance. He is now self-employed, starting a new business doing Music and Arts Education and website design. He presently lives with his partner and her 11-year-old child from another relationship.
[9] The parties live in buildings across the street from each other.
[10] The parties cohabited from March, 2008 until June, 2011. The parties had the one child together.
[11] The mother issued an application which was determined by the original order on January 23, 2012.
[12] The mother issued her Motion to Change on November 20, 2013.
[13] The father filed his Response to Motion to Change on December 23, 2013.
[14] On August 26, 2014, Justice Weagant made a temporary order (the temporary order) changing the original order. He ordered that the father have access on alternate weekends (Friday evening to Monday morning) and alternate Tuesday overnights.
[15] The temporary order has remained unchanged.
[16] On July 31, 2015, Justice Weagant made an order referring the matter to the Office of the Children's Lawyer (the OCL). The OCL accepted the case and appointed the clinical investigator to conduct an investigation pursuant to section 112 of the Courts of Justice Act.
[17] The OCL released its interim report on February 24, 2016. It made recommendations, with the intention to review the matter in 8 months.
[18] On March 1, 2016, Justice Weagant transferred the case to this court location.
[19] On August 25, 2016, Justice Melanie Sager, the case management judge, made an order providing directions for trial. She also ordered the father to pay the mother costs of $653.63. She gave the mother leave to move to strike the father's pleadings if he did not comply with the court's directions. The father complied with the court's directions.
[20] The OCL released its final report on October 20, 2016.
Part Three – Material Change in Circumstances
[21] Section 29 of the Children's Law Reform Act (the Act) provides the statutory authority for varying a custody or access order. It states:
A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.
[22] The Supreme Court of Canada decision in Gordon v. Goertz (1996), 19 R.F.L. (4th) 177 S.C.C. sets out a two-stage process for the court to conduct in motions to change custody or access 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.
[23] The parties agreed that there have been material changes in circumstances affecting the best interests of the child since the original order was made. The evidence supported this. These changes include:
a) The conflict between the parties has escalated since the date of the original order. There have been multiple calls to the Children's Aid Society (the society) and investigations by them. There has been police involvement with the family. There has been a deterioration in the ability of the parties to communicate with each other. The mistrust between the parties has deepened. The child has been adversely affected by this conflict. The society has expressed its concern that the child is at risk of emotional harm due to parental conflict.
b) There is evidence that the child has been subjected to inappropriate physical discipline in both homes.
c) The parenting schedule has been materially different since the temporary order was made on August 26, 2014.
[24] The court must next determine what order is in the best interests of the child.
Part Four – Review of Evidence
4.1 The Mother
[25] The mother asks that the custody order remain unchanged. She seeks incidents of custody that include her being able to obtain documentation for the child without the father's consent.
[26] The mother proposed parenting time for the father as follows:
Week 1: Friday after school until Monday morning, with a return to school, and Thursday after school until 7:30 p.m. and;
Week 2: Tuesday after school until a return to school on Thursday morning.
[27] The mother proposed a detailed holiday schedule. She asks that the child be with her on Halloween and Christmas Day, as the father does not celebrate these holidays.
[28] The mother deposed that the child is doing very well with the current parenting schedule. He is performing well academically and socially at school. The mother deposed that she has involved the child in extra-curricular activities that he enjoys. The child participates in the Boys and Girls Club after school and plays in a soccer league. The mother testified that the child is healthy and that she responsibly attends to his medical needs.
[29] The mother works full-time during the week, but has adjusted her schedule to spend more time with the child. She relies on friends to take the child to school in the morning. For a short time, one of those friends was having difficulty getting the child to school on time. The mother now uses a different friend to take the child to school and this issue has been resolved.
[30] The mother was involved in a relationship during this court case. There were concerns about this relationship. The child reported being exposed to domestic violence by the mother's partner against the mother and reported to the clinical investigator some corporal punishment by the mother's partner. The mother deposed that this relationship ended in June, 2016.
[31] The mother spoke glowingly about the child. She described him as a bright, happy boy who is outgoing and loves sports. She said that he is caring and loving. The mother acknowledged that she sometimes has difficulty managing the child's behaviour at home. He gets upset when he loses at video games and will sometimes have tantrums. She says that she sometimes has difficulty getting him to school and to go on visits with the father.
[32] The mother raised numerous concerns about the father. They included allegations that:
a) He constantly involves the child in parental conflict, confusing the child.
b) He won't engage with the child in activities and has strict rules that prevent the child from engaging in activities he enjoys. She says that the child often expresses that he is bored on visits.
c) He won't let the child call her when he is at his home. This upsets the child.
d) He is primarily responsible for the high degree of conflict between them. He is constantly making false reports about her parenting to the society and the police.
e) He is taping all their conversations.
f) He has very rigid ideas about diet. She says that the child was deprived of participating in the school's Snack Program because the father advised the school that the child is vegan. The school has advised her that she needs a court order for the child to receive the same snacks as the other children.
g) He has poor medical judgment and does not believe in conventional medicine. She said that she once gave the father antibiotics when the child was sick and he wouldn't give them to the child.
h) He has exposed the child to inappropriate adult conversations about racism. She said that the child has asked her why the father speaks badly about white people to his friends.[2]
i) He demeans her to the child.
j) He is insensitive to the child's views and feelings. She said that he pronounces the child's name differently than everyone else and this upsets the child. She said that the father is not sensitive to the child's desire to have a more conventional diet and to engage in more activities in his home. She said that the father would not let the child go out trick or treating on Halloween, disappointing the child.
k) He uses physical discipline on the child and the child is afraid of angering him.[3]
l) He is not open to and is dismissive of the opinions of others.
m) He has not paid any child support. She pays for all activities for the child.
[33] The mother testified that she has made responsible parenting decisions for the child and is the parent better suited to make these decisions in the future.
[34] The mother said that access operates more smoothly now that exchanges take place at school. She said that in the past, the father would berate her when exchanging the child.
[35] The mother believes that the present parenting arrangement, with some extra parenting time with the father, is in the child's best interests.[4] She believes that the child thrives in the present schedule which is stable and consistent. She is opposed to frequent transitions between the homes.
[36] Several professionals involved with the family have recommended that the mother take the child to counseling. The child exhibited sexualized behaviour in 2014. He was also demonstrating stress due to the parental conflict. The mother was resistant to these recommendations. She was concerned that the father would co-opt the counseling process and use it to escalate the conflict. She testified that the child's sexualized behaviour ended over 2 years ago and she does not see any benefit to the child in making this the focus of counseling (as the father wants) at this time.
[37] The mother acknowledged that she should have taken the child for counseling and stated that she is prepared to do so now. She would like the child to initiate the topics for any counseling. She also wants to be present for all counseling sessions.
[38] The mother denied that she uses physical discipline on the child.
4.2 The Father
[39] The father seeks sole custody of the child. He asks that the mother have access on alternate weekends and that holiday time be equally divided. He proposed that the child spend the first week of the winter holiday school break with the mother and the second week with him. An important part of his plan is that he will take the child to a therapist for counseling as soon as possible.
[40] The father gave a loving description of the child. He described the child as extremely intelligent, a borderline genius, very mature, well-spoken, very kind, loving, fair and social. He said that the child likes music, dancing and sports. He said that he is a well-rounded child.
[41] The father described his home as quiet, loving and stable. He said that the child has close relationships with him, his partner and his partner's son. This was corroborated by his partner.
[42] The father said that he sets his own work hours and has the flexibility to exchange the child at school. He is operating a business with his partner from their home. His partner testified that she also has flexibility to assist in child care.
[43] The father said that he is very involved with the child's school and speaks to the child's teachers. He acknowledged that he does not deal with the child's doctors.
[44] The father deposed that he presently has two residences – one with his partner and one with his mother. He moves back and forth between the two homes. If the child is placed in his care, the father said that he will live full-time with his partner. He said that this is a two-bedroom apartment. He said the child will have his own room – particularly since he is concerned about the child's history of sexualized behaviour.
[45] The father deposed that he and his partner are naturalists and believe in holistic and homeopathic medicine. He said that they are both vegans. He said that he does a lot of reading on these topics. He testified that he understands (and does not mind) that the child has a different diet outside of his home. He said that the child is fed properly and nutritiously in his home. He denied that the child would be afraid to tell him that he eats meat (as alleged by the mother), as he already knows this.
[46] The father said that while he prefers homeopathic remedies, if the child was injured or he couldn't take a homeopathic route, he would take the traditional route and take the child to a doctor. The father acknowledged that he has not taken the child to doctors in the past. He said that he and the child rarely get sick.
[47] The father said that he doesn't agree in giving children vaccinations – "he wouldn't do it".
[48] The father said that he sets limits on screen time for the child. He places an emphasis on learning and intellectual activities. He denied the mother's allegations that he does not engage the child in activities. He said that they play board games in the home and when the weather is warmer engage in activities like basketball.
[49] The father takes the child on Saturdays to programs at the African Canadian Heritage Association (ACHA). The child enjoys these programs.
[50] The father acknowledged that he only took the child one time to his soccer games. He was upset that the mother enrolled the child in a soccer program that took place on his parenting night. [5] The child subsequently played soccer on a different night. The father still did not go to his games.
[51] The father believes that he and the child have been let down by the institutions. He does not believe that the society and the police have appropriately investigated his complaints about abuse in the mother's home. He was upset at his previous lawyer for permitting the original order to be made granting the mother custody of the child; at Justice Weagant for making the temporary order, "without evidence" and at the clinical investigator. He described most of these persons as "either racist or sexist".
[52] The father admitted that he has taped every conversation with the mother since 2011. He claimed that he once told her he was doing this and she should have known he was taping every conversation or encounter with her. The court finds that most of these conversations were taped surreptitiously. The father expressed surprise that everyone does not tape their conversations to protect themselves.
[53] The father acknowledged that he disciplined the child a few times by hitting him on the hands. He denied using any excessive physical discipline. He described himself as "passionate, not violent".
[54] The father said that he has always called the child by his "proper name" and will continue to do so. When asked why he would do this if the child does not like it, he said that the child is being improperly influenced by the mother. He said that, "I can't understand why, I am the one who always makes the change - he always seems to agree with his mother".
[55] The father did not acknowledge making any parenting mistakes or contributing to the adult conflict.[6] He believed that all his calls to the society were justified.
[56] The father acknowledged that he has not paid any child support to the mother. He said, "why should I?" The father testified that he has bought winter gear for the child. He believes that he has always supported the child.
[57] The father had numerous concerns about the mother. These allegations included:
a) She has neglected the child's need for counseling.
b) She failed to advise him about the child's sexualized behaviour, putting his partner's child at risk.[7]
c) She has exposed the child to inappropriate partners.
d) Her home is chaotic, while his home is quiet and orderly. He said that he is concerned about "the environment in the mother's home, in general".
e) She is overwhelmed in caring for the child.
f) She is irrational.
g) She is a liar. That is why he needs to tape their conversations.
h) She has succeeded in alienating the child from him. He expressed his feeling that he has been "stripped of his fatherly rights".
i) She is only offering more access now and agreeing to counseling for the child to look good to the court.
4.3 The Clinical Investigator
[58] The clinical investigator prepared two reports that were filed as evidence. She was also cross-examined by both parties.
[59] The clinical investigator provided her evidence in a balanced manner. She was able to identify strengths and weaknesses of both parties. The court found her evidence to be highly reliable.
[60] The clinical investigator also provided the court with child statements made to her.[8] The court found this evidence to be reliable. The child was described as intelligent and had no motivation to lie to the clinical investigator. The clinical investigator conducted three interviews and it appears that the child felt comfortable with her. He made statements that cast both homes in a negative light. The child's statements were consistent. They were also logically consistent with other evidence presented to the court and with the court's observations of the parties.
[61] Material evidence of the clinical investigator included the following:
a) The child was observed as being comfortable in both homes.
b) The child was observed as being close and affectionate with both parents and their partners. He enjoys spending time in both homes.
c) The child was observed as having a close relationship with his half-brother and the son of the father's partner.
d) The child was described by the clinical investigator as sweet, sensitive and highly intelligent.
e) The child said that he felt if he had a problem he could talk to either parent.
f) The relationship between the parents was one of high conflict. There is very little positive communication between them.
g) The greatest obstacle for the parents is the lack of trust between them.
h) The parents share responsibility for the high conflict.
i) The child has been forced to be the conduit of communication between the parents.
j) The child has experienced a high level of stress due to the conflict.
k) The parents have vastly different households and parenting styles. Everything changes for the child, including how his name is pronounced, when he moves between the two homes. The child is forced to change in each home to please his parents.
l) The parents have very different rules and expectations of the child.
m) The child disclosed corporal punishment by all his caregivers and does not like it. This is a significant concern about both homes. The clinical investigator reported her concerns to the society.
n) The child disclosed observing the mother's partner being violent to her and expressed some fear of him.
o) The father presented as a caring and concerned parent. He provides a calm setting for the child.
p) The child said that the father is "sometimes mean and sometimes nice".
q) The child disclosed that his father was angry with him about what he had told the clinical investigator at an interview, yelled at him and sent him to his room. This upset the child.
r) The child said that he is sometimes afraid of his father because he cannot say certain things to him or his father will yell at him and tell him to "shut up".
s) The child said that he misses his mother when he is with his father and his father will not let him call her. He said that he would feel more comfortable spending time at his father's home if he would let him call his mother.
t) The child said that he likes playing with his father but the father does not play with him often.
u) The child views his father's home as less fun.
v) The child said he would like to be able to attend the after-school program and be on a soccer team.
w) The clinical investigator was concerned about the father's medical judgment and whether he would respond appropriately to the child's medical needs. She testified that the father had very fixed views, but they were strictly based on his own reading – he had not obtained any professional medical advice.
x) The father fails to understand the changes he can make in order to effectively support the child. The clinical investigator expressed a belief that the father's commitment to his political and cultural views, at times, take precedence to what is best for the child.
y) The child described his mother as nice. He enjoys many activities with her. He enjoys celebrating holidays with her. He likes the food she prepares for him.
z) The mother presented as a loving and protective parent who is effectively able to meet the child's medical and educational needs. She provides a child focused and fun environment for him, setting appropriate rules and expectations in the home.
aa) The mother has not recognized the need for counseling for the child and has ignored the recommendations of service providers.
bb) The mother may become overwhelmed at times, due to the pressures of being a single parent, caring for two children and working full-time.
[62] The clinical investigator contacted independent collateral witnesses as part of her investigation. Material evidence obtained from these collateral sources included:
a) The family doctor confirmed that the mother is responsibly attending to the child's medical needs.
b) The principal at the child's school described the child as a bright boy who stands out as a leader. The principal described both parents as loving.
c) The child's kindergarten teacher described the child as very intelligent, hard-working, likeable and kind. He is always prepared when he comes to school.
d) The child's grade one teacher described the child as enthusiastic. He is a child who makes good social choices and takes initiative. He has a very good attitude about school. He is always prepared when he comes to school. Both parents are interested in the child and how they can support him.
e) There have been multiple society openings since 2011.
f) A society worker told the clinical investigator that risk to the child was verified due to the emotional impact of the custody dispute on him. The child is caught in the middle of the conflict and has too much information about court. The worker felt that the child needed supports to help him deal with the conflict. The society had not verified any of the physical abuse concerns.
g) In 2014, the society expressed concern about the mother's lack of cooperation in obtaining external resources for the child.
h) In October, 2014, the father was cautioned by police about causing mischief for calling the society and police to make malicious reports against the mother.
[63] The clinical investigator candidly stated that she would have concerns about any parenting arrangement for the child. She feels it is important for the child to spend a lot of time with both parents. In her interim report, her recommendations included the following:
a) The mother should continue to have custody of the child with an obligation to consult with the father on major issues.
b) A parenting schedule should be implemented comparable to that proposed by the mother at trial. The only significant difference was that the clinical investigator recommended an overnight visit (as opposed to the evening visit proposed by the mother) in Week 1 of the schedule.
c) The child should participate in counseling with a therapist. The parents should participate as recommended by the therapist.
d) The child should be enrolled in one extra-curricular activity per session and the parents should ensure his attendance when he is in their care.
e) The child should attend the after-school Boys and Girls Club.
[64] The clinical investigator indicated that she would provide an updated report in 8 months in order to review the clinical issues in her report.
[65] Neither party was happy with the report. The mother filed a formal Dispute about the recommendations. The father did not file a formal Dispute to the report. However, he testified that the clinical investigator "exhibited bias – perhaps conscious or unconscious".
[66] The mother enrolled the child in soccer. The father did not cooperate with taking the child to this activity.
[67] The mother enrolled the child in the Boys and Girls Club after school. The child enjoys this.
[68] The mother did not arrange counseling for the child.
[69] The clinical investigator filed her final report on October 20, 2016.
[70] The clinical investigator testified there was little more she could offer since the mother had not obtained counseling for the child. Further, the mother did not make herself available to be interviewed by the clinical investigator for the follow-up report. She made a recommendation that the father be permitted to take the child for counseling.
Part Five – Best Interests
5.1 Legal Considerations
[71] Subsection 24 (1) of the Children's Law Reform Act (the Act) provides that the merits of a custody or access application shall be determined on the basis of the best interests of the child.
[72] Children should have maximum contact with both parents if it is consistent with their best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27.
[73] If one parent does not facilitate, or undermines the child's relationship with the other parent, it will be a relevant factor in determining their ability to act as a parent. See: Leggatt v Leggatt, 2015 ONSC 4502.
[74] Subsection 24 (2) of the Act sets out eight considerations for the court to consider in making the best interests determination. No one factor has greater weight than the other, nor is one factor particularly determinative of the issue before the court. See: Libbus v. Libbus, [2008] O.J. No. 4148, (Ont. SCJ). The court will review these considerations below.
5.2 Best Interest Factors
[75] The following is the court's analysis of the best interest factors set out in subsection 24 (2) of the Act.
Factor #1: The Love, Affection and Emotional Ties
Between the child and:
- (i) each person entitled to or claiming custody of or access to the child,
- (ii) other members of the child's family who reside with the child, and
- (iii) persons involved in the child's care and upbringing.
[76] The parents both love the child and he loves them. The child views the mother's home as more fun and nurturing. He is able to eat foods he enjoys there.
[77] The child enjoys close relationships with his half-brother, the father's partner and her son.
[78] The child also enjoys a positive relationship with the father's large extended family. The mother identified this as a positive feature of the father's plan.
Factor #2: The Child's Views and Preferences
If they can reasonably be ascertained
[79] The child enjoys spending time in both homes. He has expressed that he misses his mother at times when he is with his father and wishes he would permit him to call her. He would like to spend more time with the father if he was able to do this.
[80] The child would like the father to do more activities with him.
[81] The child does not want any of his caregivers to hit him.
Factor #3: The Length of Time the Child Has Lived in a Stable Home Environment
[82] The child lived with both parents equally from the date of the original order until the date of the temporary order.
[83] The child has primarily lived with the mother since the date of the temporary order.
[84] The mother has provided the child with a stable home environment.
[85] Despite the parental conflict, the child has functioned very well in the present parenting arrangement. He is doing very well at school, both academically and socially.
Factor #4: The Ability and Willingness of Each Person Applying for Custody
To provide the child with guidance and education, the necessaries of life and any special needs of the child.
[86] The mother, for the most part, is a responsible parent. She supports the child's academic needs and works closely with the school. She properly addresses his medical needs. She is attuned to the child's feelings and provides a loving and fun environment for him. She is sensitive to what has been described as the child's "picky eating" and tries to provide him with foods he enjoys.
[87] The mother allowed her mistrust of the father to interfere with the child obtaining counseling, which would have likely assisted the child in managing parental conflict.
[88] The mother has borne most of the financial responsibility for the child.
[89] The father provides the child with a calm and loving home. He places an emphasis on learning.
[90] The father has the opportunity to educate the child about his culture and heritage and guide him about challenges he may face being a mixed-race child. The father involves the child with the ACHA, which is a positive program for the child.
[91] The father has very different views than the mother about diet. Unlike the mother, the court does not have concerns about the diet in the father's home. The child is healthy and the father is emphasizing healthy eating habits. However, his views become problematic when the child is made to feel guilty for what he eats in the mother's home or when he is restricted in what foods the school can give him.
[92] The court does have some concern about the father's ability to properly address the child's medical needs. He has very strong beliefs about conventional medicine. He once did not give the child antibiotics when he was sick. He hasn't met or spoken to the child's doctor. His medical beliefs are based on self-education. He has not contacted a doctor who practises holistic and homeopathic medicine for advice.[9] His evidence left the court wondering if he would obtain appropriate medical treatment for the child in a timely manner if it was necessary.
[93] The father has not paid any financial support to the mother since the temporary order was made and does not understand why he should have to. Financially supporting your children is an important component of responsible parenting. The father has failed the child in this respect and prioritized his own needs over those of the child. See: Jama v. Mohamed, [2015] ONCJ 619.
Factor #5: Any Plans Proposed for the Child's Care and Upbringing
[94] The mother set out a child-focused plan for the child. She struggled for a period of time getting the child to school on time, but has now addressed this issue. She is now involving the child in an after-school program and extra-curricular activities.
[95] The mother claimed that she now understands the need for the child to obtain counseling to deal with parental conflict. However, the court shares the father's skepticism about her commitment to this process. Counseling has been suggested for many years and the mother hasn't taken steps to start it. She continued to place conditions on the counseling at trial, maintaining that she would want to be present during all counseling sessions for the child.
[96] The court has no doubt that the father would take the child to counseling. However, it has significant concerns about whether giving the father this right would be best for the child.
[97] The evidence indicated that the father is very controlling (this will be discussed in more detail below) and has very fixed ideas. He was adamant that the child's historical sexual behaviour be addressed in counseling.[10] This may or may not be warranted. He wants to have his partner and his partner's child participate in the child's counseling. This isn't warranted. He wants to choose the therapist and be present at all sessions. Undoubtedly, he will want to tape the sessions, since he tapes all conversations. The evidence indicates that if the father does not like what the counselor says or does, he will likely view this as either racist or sexist, undermine the process or change counselors. This is not in the child's best interests.
[98] The father has not supported the child's desire to play soccer. He did not take him to games because of his anger with the mother.[11] He did not go to any of his child's soccer games when they were changed to Monday evenings.
Factor #6: The Permanence and Stability of the Family Unit
With which it is proposed that the child will live
[99] The mother's relationship with her partner ended in June, 2016. She is no longer in a relationship.
[100] The father has been in a stable relationship with his partner and her child. The father and her partner presented as being supportive of each other.
Factor #7: The Ability of Each Person Applying for Custody or Access
To act as a parent
[101] The evidence established that the mother is, for the most part, a good parent who is attuned to the needs of the child. She provides the child with a loving home environment.
[102] The mother has generally facilitated the child's relationship with the father by complying with the temporary order – the father's claims of alienation are without merit. One exception to the facilitation of this relationship was when the mother delivered the child late on the Tuesday nights the child played soccer. While the father should have taken the child to his games, the mother did not have the unilateral right to change the parenting exchange times.
[103] The mother has proposed a parenting schedule which recognizes the importance of the father in the child's life.[12]
[104] The mother has been overwhelmed at times caring for the child. She has many challenges. Her other child has some special needs. She works full-time. She has to deal with the father, who is relentless in his criticism of her. This has led to frustration on her part. The court finds that she has lost patience with the child, used some corporal punishment and called him names. The court does not believe that the child would lie to the clinical investigator about this. The court does not accept the mother's denials.
[105] The mother has shown some poor judgment. She did not obtain counseling for the child. She did not fully cooperate with the clinical investigator in the follow-up report. She did not advise the father in 2014 about the child's sexualized behaviour. She phoned the police when the child had a tantrum about going to see the father on the child's birthday in 2016, sending the wrong message to the child.[13]
[106] The father has parenting strengths. He provides a quiet and stable home environment for the child. He facilitates the child's education and teaches him about his culture and heritage.
[107] However, the father has demonstrated poor insight into the child's emotional needs, including:
a) He continues to call the child by a different name than everyone else even though the child is uncomfortable with this. The father does not respect the child's feelings, instead attributing them to improper influence by the mother.
b) He restricts the child from calling the mother from his home, despite the child's desire to do so.
c) He continually calls the society about the mother, placing additional pressure on the child when these calls are investigated.
d) He has involved the child in the parental conflict and demeans the mother to him.
e) Although his child has expressed his joy at playing on a soccer team, the father did not take him to games because of his anger with the mother.[14]
f) The father would not let the child trick or treat on Halloween, as he does not believe in begging for food. This disappointed the child.
g) He has confused the child about food choices. He is making him feel guilty for eating meat and milk. The child has indicated that he is afraid to anger his father on this subject. The father has improperly restricted the child's food choices in the school's Snack Program.
h) The father punished the child for comments the child made to the clinical investigator, yelling at him and sending him to his room.
i) In 2016, the father was video-taping and uploading discussions that a group he was involved with were having about racism onto You Tube. The child was present during these adult discussions. The mother testified that the child expressed confusion about the father talking negatively about white people with his friends. The father should have recognized that the child was too young to be present for these discussions and would not be able to properly process them as an adult would.[15]
[108] The father demonstrated very poor insight into his role in the parental conflict. He attributes all the poor communication to the mother. The evidence does not support that view. The father surreptitiously tapes all conversations, but expresses surprise that the mother mistrusts him. He has no insight into how these actions escalate the conflict. The court repeats its comments about surreptitious taping of telephone calls in paragraph 11 of Hameed v. Hameed, 2006 ONCJ 274 as follows:
…..Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties' worrying about whether the other is secretly taping them. In a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process.
[109] The father has an important role as the child's male role model. However, the court has concerns that the father is sending the child the wrong messages – messages that will adversely impact the child's ability to trust people and problem-solve effectively in the future. The father is extremely mistrustful and quick to take offence. These observations are supported by his:
a) Taping all conversations and meetings.
b) Attributing racism or sexism to everyone who disagrees with him. At trial, this included the society, police, the clinical investigator and Justice Weagant.[16]
c) Complaining during the trial that people were trying to demonize him.
d) Insisting that he be in the room for the child's counseling.
e) Claiming alienation when the child says he doesn't like the way the father pronounces his name or when an access visit is missed (which is rare).
f) Frequently calling the society to complain about the mother, making the lives of her and the child more difficult.
[110] The court finds that the father is very controlling and can be difficult to deal with. Evidence supporting this finding includes the father:
a) Taping all conversations and meetings. There are elements of control and intimidation in these actions. In paragraph 94 of Whidden v. Ellwood, 2016 ONSC 6938, 2016 O.J. No. 5816 (SCJ), Justice Alex Pazaratz described this behaviour as a breach of trust; an abuse of access; and a cheap manipulation of an innocent child.
b) Not providing any financial support to the mother. The father is only prepared to financially support the child on his terms.
c) Insisting on being in the room for the child's counseling sessions.
d) Frequently calling the society about the mother. He once called the police who came to the mother's workplace, embarrassing her.
e) Recently setting up counseling for the child, without authority to do so.
f) Controlling what the child can eat in the school's Snack Program.
g) Insisting on changes to society workers. The court accepts the mother's evidence that the father did not like the first society worker and made a false allegation that the worker had sex with the mother.
[111] The court finds that the father minimized his corporal punishment of the child and accepts the statements the child made to the clinical investigator about this.
[112] The father is a person who has passionate views. He also presented as someone who has very rigid views. The court has concerns about how flexible the father will be in meeting the child's needs as he ages and asserts his independence and own point of view. Unless the father changes and develops some insight, it is unlikely that he will manage these developmental changes well.
Factor #8: The Relationship by Blood or Through an Adoption Order
Between the child and each person who is a party to the application.
[113] This is a neutral factor.
5.3 Discussion
[114] Neither party sought an order for joint custody. The parties recognized that their communication is far too poor to make a joint custody order workable.
[115] The mother will continue to have custody of the child. The child has done well with the existing custodial arrangement and it should continue. Despite her limitations set out in this decision, the mother is the parent better able to make responsible major decisions for the child. As set out above, the court has significant concerns about the father's ability to meet the child's needs and about his judgment, insight, and controlling and mistrustful behaviour. For these reasons and those set out in paragraphs 96 and 97 above, the court does not find it to be in the child's best interests to give the father control over counseling for the child.
[116] The court has little confidence that the father will cooperate with any requests by the mother to obtain documentation for the child. She will be entitled to obtain this documentation without his consent.
[117] The father will be granted the rights to information about the child set out in subsection 20 (5) of the Act. This subsection reads as follows:
Access
20 (5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.
[118] The father should be able to attend all parent-teacher interviews and school functions and receive information from the school about the child.
[119] The mother's requests related to traveling with the child on vacations were not opposed by the father and will be ordered, with minor amendments.
[120] The mother sought an order restricting her from moving the child's residence outside the Greater Toronto Area without prior court order or the father's consent. The mother's request is too broad and not in the child's best interests. The Greater Toronto Area is very large. At the outer edges of this area, a move by the mother would make the parenting schedule that will be ordered impractical. The court will restrict the mother from moving the child's residence outside the City of Toronto without a prior court order or the father's consent.
[121] The parties agree that counseling for the child should take place. They both asked the court to set out terms for counseling.
[122] It is important that the counseling be a safe place for the child to express himself. This means that it needs to be for him – not the parties. Neither party should be present when the child has counseling sessions unless the counselor feels this is required. The counselor will determine what needs to be discussed with the child. The parties shall provide the counselor with a copy of this decision.
[123] The mother should select the counselor. The court agrees with the mother that the child should see a different counselor than the counselor the father and his family are seeing. The counselor should be trained to deal with children. The mother shall notify the father within 60 days which counselor she has chosen. Neither parent should question the child about what is discussed at counseling.
[124] The court will make an order to ensure that the child is not limited to a vegan diet at school.
[125] The child expressed to the clinical investigator his concern about being hit in both homes. The court agrees with the clinical investigator that this needs to stop and an order will be made prohibiting this.
[126] The decision about the father's parenting time is more difficult. The court wants to maximize the positive benefits of the child spending time with the father and his family, while structuring an order that protects him from the parental conflict and the negative behaviour of the father.
[127] The parties have engaged in a power struggle for about 6 years. It needs to end. The child has demonstrated anxiety and confusion about the conflict. It is only the child's resilience and positive character that has mitigated the emotional damage to him – so far.
[128] The court finds that an equal parenting arrangement will just continue the power struggle and the child will be stuck in the middle.[17] This will deprive the child of the stability and peace he needs in his life. Further, as with joint custody, a higher degree of cooperation and mutual respect is needed to make an equal parenting arrangement work effectively. Parents need to be able to coordinate medical and health issues concerning the child. They need to be able to coordinate extra-curricular activities that will be important for him. There should be some level of consistency in the two homes if an equal parenting schedule is going to work. None of these elements are present here.
[129] The court strongly considered maintaining the parenting schedule in the temporary order to balance these objectives. The child is doing well with this schedule and the court is concerned that spending more time with the father may further expose him to adult conflict and the negative aspects of the father's parenting. However, if the mother is prepared to offer a more generous parenting schedule, the court is willing to support this. The parties have not been kind or generous with each other. The court does not want to discourage the parties from acting in this manner (whatever the motivation). The mother's parenting proposal will be implemented with minor amendments.
[130] The court accepts the mother's evidence that the father does not celebrate Christmas or Halloween.[18] The child should not be deprived of celebrating these occasions and he will spend this time with the mother. The court agrees with the father's proposal that the child spend the first week of the winter school break (that will cover Christmas) with the mother and the second week with the father.
[131] The father deposed that his family celebrates the Festival of Masks on a date between November 1 and 12 each year.[19] The child should be able to spend this holiday with the father.
[132] The order will provide that the child spend Father's Day and the father's birthday with the father and Mother's Day and the mother's birthday with the mother.
[133] All other holidays will be divided equally between the parties as set out in the order.
Part Six – Conclusion
[134] A final order shall go on the following terms:
a) This order shall replace any previous parenting order.
b) The mother shall have custody of the child.
c) The father shall have the rights to information about the child set out in subsection 20 (5) of the Act.
d) Both parties will be entitled to attend parent-teacher meetings and school functions. The mother shall execute whatever direction is necessary to permit the father to obtain information about the child and school events directly from the school.
e) The mother shall be entitled to direct the school about foods the child may eat there.
f) The mother shall be entitled to obtain or renew all government documentation for the child, including passports, without the father's consent.
g) The mother shall take the child for counseling on the following terms:
i) The mother is to choose the counselor, who should be trained to work with children.
ii) The mother is to advise the father who the counselor is within 60 days.
iii) The parents shall not participate in the counseling unless specifically requested by the counselor.
iv) Both parents shall take the child to scheduled counseling sessions during their parenting time.
v) The parents shall not question the child about what is talked about during counseling sessions.
vi) The parents shall provide the counselor with a copy of this decision.
h) The parties shall ensure that no one in their home physically disciplines the child.
i) The parents will permit the child to make telephone calls in private to the other parent when he is with them.
j) Unless there is an emergency, the parties shall communicate respectfully about the child by email.
k) Neither parent shall denigrate any caregiver for the child in the presence of the child.
l) The father shall have parenting time with the child as follows:
Week One – From Fridays after school until Monday delivery to school. This will extend to Tuesday delivery to school, if the Monday is a statutory holiday. The child shall also spend Thursday after school until 7:30 p.m. with the father.
Week Two – Tuesday from after school until Thursday delivery to school.
m) The child shall spend Halloween with the mother from after school until she delivers the child to school the next morning.
n) The father shall advise the mother 30 days in advance each year as to what day the Festival of Masks celebration will take place. The child shall spend that day with the father from after school until he delivers the child to school the next morning.
o) The child shall spend the first week of the winter school holiday break with the mother and the second week of the break with the father.
p) The child shall spend Father's Day with the father, if it is not otherwise the father's parenting time, from 10:00 a.m. to 7:30 p.m.
q) The child shall spend Mother's Day with the mother if it is not otherwise the mother's parenting time, from 10:00 a.m. to 7:30 p.m.
r) If the father's birthday falls on a date that is not otherwise his parenting time, the child shall spend it with him from after school until he is returned to school the next morning (if the birthday falls on a weekday) and from 10:00 a.m. to 7:30 p.m. (if the birthday falls on a weekend).
s) If the mother's birthday falls on a date that is not otherwise her parenting time, the child shall spend it with her from after school until he is returned to school the next morning (if the birthday falls on a weekday) and from 10:00 a.m. to 7:30 p.m. (if the birthday falls on a weekend).
t) The child shall spend equal time with the parents during March Break, to be divided at the mid-point in the week.
u) The parties shall each be permitted vacation time with the child for up to two weeks in the summer. Each party will be entitled to remove the child outside of Canada, without the consent of the other party, for this purpose. The travelling parent, for any vacation outside of Toronto, shall provide the other parent with a complete itinerary of where they will be staying on the vacation, together with contact numbers for the child. The traveling parent shall ensure that the child has frequent contact with the other parent during the vacation.
v) The father shall advise the mother by May 15th each year, in writing, if he will be exercising the summer vacation time and the period, for up to two weeks that he is choosing. The mother shall then advise the father by May 30th each year, in writing, if she will be exercising the summer vacation time and the period, for up to two weeks that she is choosing.
w) The holiday times shall take priority to the ordinary access schedule.
x) The mother shall not move the child's residence outside of the City of Toronto without the prior written consent of the father or prior court order.
y) The mother shall use her best efforts not to schedule the child's extra-curricular activities on the father's parenting days. However, if this is necessary for the child to attend the activity, she shall provide the father with a copy of the activity schedule and the father shall take the child to the activity on the days the child is with him.
[134] At the outset of the trial, the mother sought to amend her pleading to seek child support. The court did not permit the amendment. This case has been going on for several years – there was no justifiable reason to wait until the first day of the trial to seek this amendment. The request was very unfair to the father as he was not prepared to address a new substantive claim. However, the court wishes to emphasize that this order does not prevent the mother from bringing an application for child support. The father should be paying child support. The court strongly urges the parties to resolve this issue without further court involvement.
[135] If either party seeks their costs, they shall serve and file their written costs submissions by March 23, 2017. The other party will have until April 7, 2017 to respond. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator's office on the second floor of the courthouse.
Released: March 9, 2017
Justice S.B. Sherr
