ONTARIO COURT OF JUSTICE

CITATION: MacFarlane v. MacFarlane, 2018 ONCJ 584

DATE: 2018 08 30

COURT FILE No.: Brampton 1020/16

BETWEEN:

JULIE MACFARLANE

Applicant

— AND —

TIMOTHEY MACFARLANE

Respondent

Before Justice L.S. Parent

Heard on August 21st, 2018

Reasons for Judgment released on August 28th, 2018

Amended Reasons released on August 30, 2018

G. Cook............................................................................................. counsel for the applicant

T. MacFarlane.................................................................................................. self-represented

PARENT J.:

BACKGROUND

[1] This matter arises from the filing of an Application by Ms. MacFarlane on October 7th, 2016 which was subsequently amended on July 18th, 2017. On December 19th, 2016, Mr. MacFarlane filed an Answer which was subsequently amended on August 9th, 2017.

[2] In summary, both parties sought orders granting them each sole custody and primary residence of the children of their relationship and other terms relating to custody, access and support.

[3] The parties are the parents of three children, namely Andrew MacFarlane, born May 9th, 2013, Eliza MacFarlane, born May 9th, 2013 and Aaron MacFarlane, born September 11th, 2015. The children are currently five (5) and almost three (3) years old.

[4] The parties were married on September 4th, 2009 and separated on October 3rd, 2016.

[5] Ms. MacFarlane has been residing in Strathroy, ON since September 1st, 2017, having relocated to this home from London, ON. Mr. MacFarlane remains in the home, in Mississauga, ON, that the parties shared with the children prior to their separation.

[6] On March 23rd, 2017, Sullivan, J. granted a temporary order which included the following terms:

"The Applicant Julie MacFarlane and the Respondent Timothy (sic) MacFarlane shall share parenting time with the children Andrew MacFarlane born May 9, 2013, Eliza MacFarlane born May 9, 2013 and Aaron MacFarlane born September 11, 2015, on a week about basis with the transition taking place each Sunday at 4:00 p.m. at the Tim Hortons at Woodstock Ontario off of Highway 40 and Highway 59, commencing March 26, 2017 with the Respondent Timothy (sic) MacFarlane having parenting time then week about thereafter with the Applicant Julie MacFarlane week commencing April 12, 2017."

[7] The parenting schedule ordered by Sullivan, J. on March 23rd, 2017 is the current care schedule in place for the children.

RELEVANT HISTORY OF THE LITIGATION PRIOR TO TRIAL

[8] On September 21st, 2017, Sullivan, J., the case management judge in this matter, ordered the involvement of the Office of the Children's Lawyer ("OCL").

[9] On October 25th, 2017 a clinical investigator, Ms. Sonia Stefanutti, was assigned to this matter. On March 1st, 2018, Ms. Stefanutti filed with the court her report pursuant to section 112 of the Courts of Justice Act.

[10] On March 19th, 2018, Sullivan, J. conducted a settlement and trial management conference. Both parties and counsel for Ms. MacFarlane were present. Following this appearance, the matter was adjourned to the Trial Audit on March 28th, 2018.

[11] On March 28th, 2018, Ms. MacFarlane, her counsel and Mr. MacFarlane appeared before me, in my capacity as the Local Administrative Judge - Family, at the Trial Audit. The matter was traversed to the April/May 2018 trial sittings.

[12] The matter was not reached during the April/May 2018 trial sittings. The matter was therefore scheduled for a further trial management conference before Sullivan, J. on June 18th, 2018.

[13] On June 18th, 2018, Sullivan, J. conducted a further trial management conference. Both parties and counsel for Ms. MacFarlane were present. The matter was adjourned to the July 25th, 2018 Trial Audit.

[14] On July 25th, 2018, Ms. MacFarlane and her counsel re-attended before me, in my capacity as the Local Administrative Judge - Family, at the Trial Audit. Mr. MacFarlane was not present. My endorsement indicates that Mr. MacFarlane was paged lastly at 12:35 p.m. and there was no response.

[15] My July 25th, 2018 endorsement further provided an extension of time to August 13th, 2018 for Mr. MacFarlane to serve and file his affidavits and financial statement for trial purposes as the filing deadline of June 27th, 2018 ordered by Sullivan, J. on June 18th, 2018 had not been met.

[16] The matter, following confirmation from counsel for Ms. MacFarlane that the matter remained outstanding, was traversed to the August 2018 Trial Sittings.

[17] I further ordered that Courts Administration provide a copy of my July 25th, 2018 endorsement to Mr. MacFarlane.

[18] On July 31st, 2018, the following notation by the Assistant Trial Coordinator was filed in the Endorsement Record:

"The Applicant is ready to proceed to trial. The Respondent was not present this day.

Counsel for the Applicant, Mr. Cook has been notified of the August 20-24, August 27-31, 2018 sittings via facsimile; confirmation by way of transmission report.

A letter and the endorsement of Justice Parent dated July 25, 2018 has been mailed to the Respondent, Mr. MacFarlane via regular mail to the last known address on file."

[19] On August 20th, 2018, the following notation by the Assistant Trial Coordinator was filed in the Endorsement Record:

"The matter is ready to proceed to trial for 5 days beginning August 21, 2018 to 27, 2018 in courtroom 201 at 10:00 a.m. before Justice Parent.

A message was left with Mr. Cook's assistant Silvana advising the trial would proceed August 21, 2018 in courtroom 201 at 10:00 a.m.

A message was left for Mr. MacFarlane at XXX-XXX-XXXX (number omitted) advising the matter would be proceeding on August 21, 2018. Mr. MacFarlane was asked to call the trial office acknowledging that he received the message."

[20] On August 21st, 2018, Mr. MacFarlane was paged at the commencement of the trial at 10:00 a.m. He did not respond. The matter was stood down until 10:30 a.m. Mr. MacFarlane was paged again at 10:35 a.m. He did not respond.

[21] Given the above actions, the trial proceeded in the absence of Mr. MacFarlane.

[22] During the trial, only Ms. MacFarlane gave oral evidence. Counsel also filed, as previously ordered by Sullivan, J, an Affidavit Brief containing three (3) affidavits from other witnesses and Ms. MacFarlane's financial statement as Exhibit 1.

[23] My endorsement indicates that Mr. MacFarlane was last paged at 1:33 p.m. following the completion of the hearing of Ms. MacFarlane’s evidence and closing submissions made by counsel on her behalf. Mr. MacFarlane did not respond.

[24] My decision was reserved.

NATURE OF THE PROCEEDINGS

[25] On October 7th, 2016, Ms. MacFarlane filed an Application seeking the following order:

(a) That she be granted sole custody of the children;

(b) That Mr. MacFarlane be prohibited from removing the children from the Region of Peel;

(d) That she be permitted to obtain passports and other travel documents and authorize travel for the children without notice to or the consent of Mr. MacFarlane.

[26] On December 19th, 2016, Mr. MacFarlane filed an Answer seeking the following order:

(e) That he be granted sole custody of the children;

(f) That Ms. MacFarlane have supervised access to the children at his discretion;

(g) That Ms. MacFarlane undergo a mental health assessment;

(h) That the Peel Regional Police or such other law enforcement agency enforce this order;

(i) That Ms. MacFarlane be prohibited from removing the children from the Region of Peel and the Province of Ontario;

(j) That he be permitted to obtain passports and other travel documents and authorize travel for the children without notice to or the consent of Ms. MacFarlane;

(k) That Ms. MacFarlane pay both base and section 7 child support; and

(l) That Ms. MacFarlane pay spousal support.

[27] On July 19th, 2017, Ms. MacFarlane filed an amended Application wherein she sought, in addition to her original claims, the following order:

(m) Base child support to be paid by Mr. MacFarlane; and

(n) A parenting capacity assessment or in the alternative, the involvement of the Office of the Children's Lawyer.

[28] On July 21st, 2017, Mr. MacFarlane filed an Amended Answer disputing all claims requested by Ms. MacFarlane.

[29] On March 23rd, 2017, Sullivan, J. granted a temporary order which included the following terms:

[30] This is the current care schedule in place for the children, Andrew, Eliza and Aaron.

REPORT FROM THE OFFICE OF THE CHILDREN'S LAWYER

[31] On March 1st, 2018, Ms. Stefanutti, the clinical investigator assigned to this matter, filed her report with the court. A copy of the report was also simultaneously provided to both parties.

[32] The report confirms that Ms. Stefanutti conducted interviews with both parties and the children. In addition, she conducted observation visits of the children in the presence of each parent and also in their absence. Ms. Stefanutti also had contact with five (5) individuals she identifies as "collateral contacts."

[33] Ms. Stefanutti's report also indicates that a disclosure meeting, as the request of Mr. MacFarlane, was not held prior to the filing of her report with the court. The report indicates that Mr. MacFarlane made this request as he was not represented by counsel at the time.

[34] At page 2 of her report, Ms. Stefanutti, under the heading "SUMMARY OF SITUATION", states as follows:

"Summary of Situation:

The parties, Ms. MacFarlane and Mr. MacFarlane met each other in high school while residing the New York State, and began dating in 2000 for approximately one and a half years. They ended their relationship due to ongoing conflict, including Ms. MacFarlane reporting abuse by Mr. MacFarlane resulting in Mr. MacFarlane being charged with a domestic violence charge in 2001. They rekindled their relationship in 2006, and relocated to Canada together in 2007. They married in 2009, and after several pregnancy challenges, had their twins, Andrew and Eliza in 2013. Aaron was born in 2015. Ms. MacFarlane and Mr. MacFarlane officially separated on October 3, 2016 following a domestic incident where Ms. MacFarlane was charged with assault and removed from the home. The children remained in the home in Mr. MacFarlane's care. Ms. MacFarlane was given conditions that she could not attend the home without a third party. She was arrested again for breaching the conditions when she attended the home alone and picked the children up from daycare. They went to Family Court and Ms. MacFarlane was ordered to have access at a supervised access centre in October 2016. When Ms. MacFarlane's charges were dropped in January 2017, the access changed to unsupervised overnights and then weekends for Ms. MacFarlane. The access was changed in April 2017 to week-to-week between Ms. MacFarlane and Mr. MacFarlane. Ms. MacFarlane moved to Strathroy and bought a home during this time, near her Frist Nations reserve, while Mr. MacFarlane remained in the family home in Mississauga. The distance between the homes is approximately two hours long. The children are currently enrolled in two separate daycare centres at each location, as elementary schools would not accommodate the week on and week off arrangement for the children."

[35] Under the heading "DISCUSSION", Ms. Stefanutti states as follows:

"Throughout the investigation, Mr. MacFarlane and Ms. MacFarlane have provided complete cooperation. A message of appreciation is extended for their assistance. This report will make recommendations regarding the custody and access of Andrew, Eliza and Aaron. The investigation considered the concerns expressed by both parents as well as Andrew, Eliza and Aaron's best interests.

Andrew, Eliza and Aaron are sweet, sociable and beautiful children, who are at the centre of their parent's conflict. It is quite evident that their parents share a genuine love for them, and have the best intentions for their well-being. However, it is important that the parents put their personal feelings aside and focus particularly on the emotional needs of the children and keep in mind that on-going conflict may have a negative impact on the children's future well-being. Conflict between parents is stressful and unsettling for children, especially when it revolves around them. Children under stress are at risk of becoming sad, anxious, and angry and may behave in inappropriate ways. Although Andrew, Eliza and Aaron are young and may not understand the conflict that exists between their parents, Ms. MacFarlane and Mr. MacFarlane need to be conscious of the emotional harm they could inflict on the children as they grow older, if they continue to be exposed to the ongoing conflict between them. The children have already experienced much confusion and change in their young lives, due to domestic conflict and the transition to a new community and school. The children will benefit and thrive through a feeling of stability and security.

Ms. MacFarlane and Mr. MacFarlane agree that there are several concerns with the fact that Andrew and Eliza have missed their first year of elementary school in junior kindergarten, as a result of the current week-to-week access schedule. Although the children present as bright, intelligent children, there is the risk that they may have fallen behind in the academic and social development. In addition, attending two completely different daycares can present the children with confusion and several inconsistencies. Not to discredit their engagement and experiences in the daycare setting as also being positive; but nonetheless, it will be important for Andrew and Eliza to be immediately enrolled in a full time junior kindergarten program to bring them up to par with their peers their age.

Ms. MacFarlane and Mr. MacFarlane have shared that communication between them has been negative and poor. It is important for the parents to be able to discuss important information about the children such as education and medical. Failure to do this effectively can place the children at risk and/or deter progression and development. Again, it will be important for the parents to put their personal differences aside, so that they can together make the best decisions for the well-being of their children. At times, it may be difficult to come to a consensus. In these situations, parents should rely on the expertise and recommendations of professionals, such as teachers and doctors. This clinician is hopeful that Ms. MacFarlane and Mr. MacFarlane can improve their communications, as both have commented that it would be most beneficial to the children if the parents can lead by example and show a united front. This clinician has also observed a moment during an interview with Mr. MacFarlane, when he took a call from Ms. MacFarlane and the children. There appeared to be engaged in a civil conversation about the children.

Ms. MacFarlane and Mr. MacFarlane have expressed concern that their differing parenting styles are confusing for the children. Both have described unique and positive attributes to their own style of parenting; both exhibiting strong sets of strategies that has shown to be successful in different situations with the individual child depending on the situation and the behaviour. This is where good communication can come in handy, as they can discuss what has been useful to them when dealing with the children's behaviour; thus being supportive of one another as equal partners, rather than being critical and condescending. The children will be more inclined to follow through with the behaviour plan that is unified by both parents when possible.

Ms. MacFarlane is currently connected to her Aboriginal community and feels that it is her children's right to be fully immersed in the school program on the reserve, learning about their Indigenous culture and the Ojibwe language. Ms. MacFarlane as well as Ms. Burch, Interim Director of Enji-Maajtaawaad Early Year's program, have indicated that there are Ojibwe language programs and cultural events for the children available on the weekends, as well as language camps in the summer. Ms. MacFarlane and Mr. MacFarlane have both indicated that there were no discussions or plans prior to the separation about the children being enrolled in a full-time Ojibwe language school program. Therefore, it is felt that with Ms. MacFarlane's current connection to her Indigenous community, opportunities for Ojibwe language programs on the weekends and in the summer, and Mr. MacFarlane's future involvement with the Peel Aboriginal Network (PAN), that the children will receive Indigenous education experiences and influences in their lives.

Ms. MacFarlane is commended for connecting with and reaching out to supports and family within her Indigenous community. In a time of crisis, she was able to utilize family supports, community resources and her family doctor. However, there continues to be concerns with regards to her stability, as she has only recently moved to her new residence and re-connected with her Indigenous community. There are also concerns with her mental health, as there is a history of depression and difficulty coping. Collateral information was not provided to this clinician to verify further information regarding her current mental health treatment.

Mr. MacFarlane has shown stability and consistency throughout the separation and custody and access dispute. He stresses the importance of 'home' and a sense of security for the children. His parenting plan includes remaining in his community and staying connected to the local school and recreational facilities. His attachment to the children is strong, which has been commented by his CAS worker, as well as noted during the observation visit. He seems to know and understand the needs of the children and has established good structure and routine in the home. He assures that his priority is always the well-being of the children, and to engage and stimulate the children. Although limited with family supports, Mr. MacFarlane has been able to rely on his cousin in Port Huron who in the past assisted with the twins when they were born. Mr. MacFarlane has come to the understanding of the importance of connecting with the Peel Aboriginal Network (PAN) to enrich his children's Indigenous heritage, as well as supporting Ms. MacFarlane's wishes for the children to continue learning and being involved in their culture.

The greatest challenge at this time with regards to access, is the week to week schedule given the great distance between Mississauga and Strathroy. The children will have to reside full time in one home so that they can attend elementary school full time. Therefore, it is necessary for the recommendations to focus on primary residence. At this time, it is felt that Mr. MacFarlane can provide Andrew, Eliza and Aaron with a stable and secure home environment. It is recommended that the children’s primary residence be with Mr. MacFarlane in Mississauga. It is felt however, that if Ms. MacFarlane resided closer to the Mississauga area, an arrangement of increased access could be considered, as there are no concerns with her parenting ability. With regards to custody, Mr. MacFarlane and Ms. MacFarlane to have joint custody and should have the ability to continue to make decisions together, as they have been able to communicate about the children's needs during this current week to week arrangement. It will be important for Mr. MacFarlane during the week to keep Ms. MacFarlane aware of all decision making in regards to academics, medical and social activities. The parents should rely on professional recommendations when agreements cannot be made together."

[36] At page 15 of her report, Ms. Stefanutti makes the following recommendations:

"Mr. MacFarlane and Ms. MacFarlane should have joint custody and should share in the decision making regarding the children's academics, medical and social activities.
Mr. MacFarlane should have primary residence of Andrew, Eliza and Aaron.
Ms. MacFarlane should have access on the first three weekends of the month, from Friday evening until Sunday evening at 6 pm. When there is a P.A. day or holiday on the Friday/Monday, children will remain with Ms. MacFarlane on this day.
Mr. MacFarlane and Ms. MacFarlane should have the following holiday and summer schedule:

a) Mr. MacFarlane and Ms. MacFarlane should share Christmas holidays with one week each. (With the week including Christmas day to alternate each year.)

b) Mr. MacFarlane and Ms. MacFarlane should split the March break week.

c) Mr. MacFarlane and Ms. MacFarlane should share week to week access during the school summer months.

Mr. MacFarlane should communicate with Ms. MacFarlane regarding important updates that are occurring during the school week, Ms. MacFarlane to have independent access all school records, medical etc.
Ms. MacFarlane and Mr. MacFarlane should use a communication book to be shared during access exchanges.
Ms. MacFarlane and Mr. MacFarlane should refrain from making negative comments about one another in the presence of the children, especially during exchanges.
Mr. MacFarlane should connect with Peel Aboriginal Network.
Ms. MacFarlane and Mr. MacFarlane should consider attending a co-parenting program individually to learn how to better communicate and work together as parents and support the children through this transition period."

[37] Neither party served and filed a statement disputing the OCL report as permitted by Rule 21(e) of the Family Law Rules.

[38] During his opening statement, counsel for Ms. MacFarlane submitted that his client is seeking the following order:

(a) that sole custody of the three children of the relationship be granted to her with the condition that she would consult with Mr. MacFarlane prior to any major decisions being made however in the absence of an agreement, she would have final decision making authority;

(b) that the children's primary residence be with her;

(c) that access between the children and Mr. MacFarlane occur on the first three weekends of the month from Friday after school until Monday return at school;

(d) that the weekend access be extended if there is a school P.A. day or holiday on the Friday/Monday attached to Mr. MacFarlane’s weekends;

(e) that the parties share holidays and the summer in accordance with the recommendation of the OCL report;

(f) that the exchange of the children occur at their school;

(g) that she will communicate with Mr. MacFarlane regarding important updates that are occurring during the school week;

(h) that Mr. MacFarlane shall have independent access to all school, medical and other important records;

(i) that the parties will use a communication book to be exchanged with the children;

(j) that both parties will refrain from making negative comments about the other in the presence of the children; and

(k) that Mr. MacFarlane pay child support, commencing September 1st, 2018, to her for the three children of their relationship based on his declared 2016 annual income she accepts to be $59,485.00.

[39] Throughout her testimony, Ms. MacFarlane maintained her position that her relationship with Mr. MacFarlane, prior to and post-separation, was extremely difficult given what she described to be his controlling, aggressive and abusive, both emotionally and physically, behaviour.

[40] Ms. MacFarlane testified that she was the primary caregiver to the children following their birth given that she was on maternity leave and Mr. MacFarlane, following some limited paternity leave, continued to work outside the home.

[41] Ms. MacFarlane testified that in 2001, she was diagnosed with Post Traumatic Stress Disorder.

[42] Ms. MacFarlane further testified that following the birth of the youngest child, Aaron, in September 2015, she was diagnosed with postpartum depression. Ms. MacFarlane testified that she felt overwhelmed with the responsibilities of caring for three very young children.

[43] Ms. MacFarlane testified that she sought and received help from the Credit Valley Hospital and began seeing a psychiatrist and attending support groups regularly. She also enrolled the twins, Andrew and Eliza, in daycare.

[44] Ms. MacFarlane testified that in the months leading up to the parties' separation in October, 2016, she and Mr. MacFarlane were "parallel parenting". She testified that this meant that there was minimal communication between them and any communication she described as being "not in a healthy way". She testified that she continued to plan all medical appointments and activities for the children as she was on maternity leave while Mr. MacFarlane took care of the grocery shopping.

[45] Ms. MacFarlane testified about two incidents involving the police attending at their home in the year they separated, namely:

(a) In March, 2016

Ms. MacFarlane testified that the police were called as a result of an argument between her and Mr. MacFarlane. No charges were laid. Mr. MacFarlane left the home for the evening. The police contacted the Peel Children's Aid Society.

(b) On October 3, 2016

Ms. MacFarlane testified that the police were called as a result of an argument between her and Mr. MacFarlane. She testified that she was arrested and charged with domestic assault and two counts of assault on a police office. Ms. MacFarlane further testified that she was charged with a breach of her release terms on October 7th, 2016. She testified that all charges against her were stayed in January, 2017.

[46] Ms. MacFarlane testified that the exchanges of the children as ordered by Sullivan, J. in his order dated March 23, 2017, namely at a Tim Hortons in Woodstock, Ontario have been problematic. She testified that Mr. MacFarlane' sends her harassing text messages during the week leading up to the exchange and calls her names during the physical exchange of the children.

[47] Ms. MacFarlane testified that it is this behaviour which supports her request to have the children exchanged at their school.

[48] Ms. MacFarlane testified that the children have been displaying aggressive behaviours at the pre-school program they attend while in her care.

[49] Ms. MacFarlane testified that as a result of these behaviours, a meeting was arranged with the officials from the children’s school. She testified that she attended and that Mr. MacFarlane was invited as well. Ms. MacFarlane testified that Mr. MacFarlane declined to attend in person choosing rather to participate by telephone. She testified that Mr. MacFarlane's participation lasted very briefly as he hung up the phone shortly after the beginning of the meeting.

[50] Ms. MacFarlane testified that the result of the discussions with the school officials, the use of a daily communication book was implemented so as to track the children's behaviours. In addition, she said that verbal updates have been provided to her from the school officials.

[51] Ms. MacFarlane testified that in September, 2017 she relocated to Strathroy, Ontario. She testified that she owns her own home and how it is appropriate for her and her children's needs. She testified that her home is close to the Chippewa of the Thames First Nation, being the reserve of her Ojibwe community. She testified that she has no intention of re-locating away from her community or current home.

[52] Ms. MacFarlane testified that she has received calls from the financial institution holding the mortgage on the home she previously shared with Mr. MacFarlane in the Region of Peel. She testified that she was asked to make mortgage payments and at one point, was advised that the institution would be taking steps given the mortgage was in arrears. She testified that she has not contributed to the mortgage since her separation from Mr. MacFarlane and that Mr. MacFarlane continues to reside in this home.

[53] Ms. MacFarlane testified that she has made arrangements for Andrew and Eliza to begin senior kindergarten in September, 2018 at the Antler River Elementary School. She testified that Aaron would continue to attend the Enji-Maajtaawaad early Years' program in September. She testified that both programs are located on the Chippewa of the Thames First Nation reserve.

[54] Ms. MacFarlane testified that she intends on relying on the South Western Ontario Health Care program to address any of the children's and her medical needs. She testified that there is a clinic on the Chippewa of the Thames First Nation reserve and any specialist appointments needed are referred by the clinic but occur in London, Ontario.

[55] Ms. MacFarlane testified that she currently does not have any symptoms of PTSD and/or any other mental health or medical issues arising from her caring of her children or other responsibilities. She testified that should symptoms manifest themselves, she will ensure that she gets the proper help as she did in the past.

[56] Ms. MacFarlane described how the children attend Ojibwe cultural activities and pre-school. She testified that in her observations, they enjoy being part of their community. Ms. MacFarlane described how she is involved in her community, how she feels supported by her family and her community and how proud she is of her children for thriving within their community and their ability, despite their young age, to share these cultural experiences with their family and community members.

[57] Ms. MacFarlane testified that Mr. MacFarlane is not supportive of the children's Ojibwe heritage as he has called her inappropriate names relating to her Indigenous culture in front of the children during exchanges.

[58] When asked by the Court how the exchange of the children could occur at school on Monday mornings given that her residence is a two (2) hour drive from Mr. MacFarlane's residence, she indicated that she would be agreeable to an exchange on Sunday evenings at 7:00 or 8:00 p.m. She testified that these exchanges could occur at the police station or community centre located on the Chippewa of the Thames First Nation reserve. She testified that this exchange location would also be acceptable when the Friday exchanges of the children could not occur at their school.

[59] Ms. MacFarlane further testified that she is agreeable to an order providing that Mr. MacFarlane pay child support for the children commencing September 1st, 2018 based on his declared annual income for 2016 of $59,485.00.

[60] In support of her position, counsel for Ms. MacFarlane also filed as Exhibit 1, an Affidavit Brief containing three (3) affidavits. These affidavits are from Ms. Tara Campbell, the children's maternal aunt, sworn March 24th, 2018; Ms. Ramona May, the children maternal grandmother, sworn March 24th, 2018 and Ms. Michelle Plaskon, a friend, sworn April 9th, 2018.

[61] In summary, these affidavits corroborate Ms. MacFarlane's evidence regarding her care of the children, her and the children's involvement with their Ojibwe community, the absence of any observations by them of concerning behaviour by Ms. MacFarlane regarding the care of the children, statements that support Ms. MacFarlane’s ability to properly care for the children, the closeness of family members in the children's and Ms. MacFarlane's life, and corroborating the evidence of Ms. MacFarlane's regarding Mr. MacFarlane's behaviour during access exchanges and controlling and angry behaviour during their relationship and following their separation.

ANALYSIS

[62] The issues of custody, access and incidents surrounding these terms are to be determined by reference to the provisions of the Children's Law Reform Act, R.S.O. 1990, c.C.12 as am. (hereinafter referred to as the "CLRA"). The relevant section reads as follows:

Merits of application for custody or access:

(1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3(1).

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

(a) 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;

(b) the child's views and preferences, if they can reasonably be ascertained;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[63] The Court of Appeal's decision in Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), 10 R.F.L. (6th) 373 establishes the principle that joint custody was not to be awarded where the parties had no ability to communicate effectively about their children or to placate parties who both wanted sole custody of a child.

[64] Counsel on behalf of Ms. MacFarlane referenced the factors in section 24(1) of the CLRA in support of his client's request for sole custody and her request for terms regarding access and incidents of custody/access.

[65] In summary, counsel submitted that the evidence of Ms. MacFarlane supports the children being in her care given the love and emotional ties they share as a family unit and within their community; that she has provided a stable and loving home environment for them, that she has demonstrated her ability and willingness to care for the children, in all aspects, since the parties' separation and her willingness to support the children's time with Mr. MacFarlane conditional on limiting her contact with him to communication about the children.

[66] Counsel also referenced section 24(4) of the CLRA which requires the court to consider, in determining a person’s ability to act as a parent, incidents of violence which have occurred.

[67] Counsel submits his client's evidence, the affidavits of her collaborative witnesses and the summary of facts described by his client as detailed in the OCL report regarding Mr. MacFarlane’s behaviour towards her and its consistency with her evidence during the trial as supporting Ms. MacFarlane's position that she be granted sole custody and primary residence of the children.

[68] Counsel for Ms. MacFarlane also submitted that I take an adverse inference to the fact that Mr. MacFarlane chose not to participate in this trial and also not file any evidence by affidavit in support of his position for the orders sought in his Amended Answer.

[69] Counsel for Ms. MacFarlane sought an order for child support in the amount of $1,181.00 commencing September 1st, 2018 and for every month thereafter. Counsel referred to Mr. MacFarlane's financial statement sworn December 19th, 2016 and located at Tab 14, Volume 1 Continuing Record, as evidence to support Ms. MacFarlane's request given an income of $59,485.00 noted on the attached 2016 Notice of Assessment.

[70] The fact that Mr. MacFarlane has chosen not to participate in the trial of this matter, despite the clear evidence that he was well aware of it proceeding, is of great concern.

[71] The result of this decision by Mr. MacFarlane is that I am left with the evidence of Ms. MacFarlane and the OCL report, filed March 1st, 2018 in determining which order is in the best interests of Andrew, Eliza and Aaron.

[72] Ms. Stefanutti recommends that the parties' have joint custody with the children's primary residence being with Mr. MacFarlane. She further recommends that access between the children and Ms. MacFarlane be for the first three (3) weekends per month from Friday evening to Sunday evening with additional holiday time.

[73] In reviewing the OCL report, I find that all of the testimony of Ms. MacFarlane given during the trial regarding her relationship with Mr. MacFarlane and the children, both throughout their relationship and following their separation, is consistent with the information she provided to Ms. Stefanutti during her investigation.

[74] At page 13 of her report, Ms. Stefanutti writes:

"…there continues to be concerns with regards to her [Ms. MacFarlane's] stability, as she has only recently moved to her new residence and re-connected to her Indigenous community. There are also concerns with her mental health, as there is a history of depression and difficulty coping. Collateral information was not provided to this clinician to very further information regarding her current mental health treatment.

Mr. MacFarlane has shown stability and consistency throughout the separation and custody an access dispute. He stresses the importance of 'home' and a sense of security for the children. His parenting plan includes remaining in the community and staying connected to the local school and recreational facilities…"

[75] I am satisfied that the evidence of Ms. MacFarlane addresses the concerns raised by Ms. Stefanutti in her report. Specifically, I am satisfied that the evidence supports that Ms. MacFarlane:

(a) has obtained and continues to maintain a stable and appropriate home for the children and herself in Strathroy, ON;

(b) has established meaningful relationships and accessed appropriate resources for herself and the children within the Chippewa of the Thames First Nation;

(d) has demonstrated that there are currently no mental health issues impacting her ability to properly care for her children on a daily basis;

(e) has demonstrated that should she experience symptoms of PTSD or other mental health concerns, she will access appropriate resources to assist her; and

(f) has demonstrated that should she experience symptoms of PTSD or other mental health concerns, she will ensure the continued appropriate care of her children which may include assistance by her family and/or community supports.

[76] I am further satisfied that an order for joint custody of the children is not appropriate given:

(a) the evidence of Ms. MacFarlane and her corroborative witnesses, surrounding Mr. MacFarlane's behaviour during the exchanges of the children;

(b) the evidence of Ms. MacFarlane regarding Mr. MacFarlane's refusal to meaningfully participate in the school meeting regarding the children's aggressive behaviours;

(c) the evidence of Ms. MacFarlane and her collaborative witnesses regarding Mr. MacFarlane insulting Ms. MacFarlane by inappropriately using cultural references which are at times, in front of the children; and

(d) the evidence of Ms. MacFarlane that Mr. MacFarlane continues to send her harassing texts during the week leading up to the exchange of the children.

[77] I am also mindful of the fact that Mr. MacFarlane sought that an order for sole custody be granted to him in his pleadings. He of course has not participated in the trial to dispute the evidence provided by Ms. MacFarlane regarding their ability to communicate and co-operate following the release of the OCL report.

[78] In reviewing all of this evidence and the factors listed in s. 24 of the "CLRA", I am satisfied that an order granting Ms. MacFarlane sole custody and primary residence of the children with specified access between Mr. MacFarlane and the children is in Andrew, Eliza and Aaron's best interests.

[79] I am further satisfied that the order requested regarding child support is supported by the evidence.

ORDER

[80] For the reasons expressed above, the following final order is granted:

(1) The Applicant, Julie MacFarlane, shall have sole custody of the children, Andrew Mark MacFarlane, born May 9th, 2013, Eliza May MacFarlane, born May 9th, 2013 and Aaron Peter MacFarlane, born September 11th, 2015;

(2) The Applicant, Julie MacFarlane, shall consult with the Respondent, Timothey MacFarlane, prior to any major decisions for the children being made. Should an agreement not be reached, the Applicant, Julie MacFarlane, will have the sole authority to make the decision without the consent of the Respondent, Timothey MacFarlane;

(3) The children's primary residence will be with the Applicant, Julie MacFarlane;

(4) The Respondent, Timothey MacFarlane's, access to the children will be as follows:

(a) From the date of this order until Sunday, September 2nd, 2018 when the children shall be returned to the care of the Applicant, Julie MacFarlane, at 7:00 p.m. at the Community Centre located on the Chippewa of the Thames First Nation reserve; and

(b) Commencing Friday, September 7th, 2018 at 3:30 p.m. until Sunday, September, 9th 2018 at 7:00 p.m. and for the following two (2) consecutive weekends at these same times. The children shall remain in the care of the Applicant, Julie MacFarlane, for the weekend following the last weekend they are in the care of the Respondent, Timothey MacFarlane. Thereafter, the children will be with the Respondent, Timothey MacFarlane, for three consecutive weekends at these times;

(5) The Respondent, Timothey MacFarlane, shall pick up the children from their school and/or pre-school on Friday and return them on Sunday to the Community Centre located on the Chippewa of the Thames First Nation reserve. If the children's school and/or pre-school is closed on Fridays, the Respondent shall pick up the children at 3:30 p.m. at the Community Centre located on the Chippewa of the Thames First Nation reserve;

(6) Should a school P.A. day or holiday occur on the Friday and/or Monday attached to the Respondent, Timothey MacFarlane, access time as contained in this order, the pick-up time of the children shall be on the Thursday and/or the return time shall be on the Monday;

(7) The Applicant, Julie MacFarlane and the Respondent, Timothey MacFarlane shall have the following holiday and summer schedule:

(a) An equal sharing of the school Christmas holidays with one week each, with the week including Christmas Day to alternate each year;

(b) An equal sharing of the school March Break; and

(8) The Respondent, Timothey MacFarlane, shall be entitled to make inquiries and be given information as to the health, education and welfare of each of the children;

(9) The Applicant, Julie MacFarlane and the Respondent, Timothey MacFarlane, shall use a communication book and/or an electronic communication tool to exchange information about the children;

(10) The Applicant, Julie MacFarlane and the Respondent, Timothey MacFarlane, shall refrain from making negative comments and disparaging remarks about one another and any member of their family and/or community in the presence of the children;

(11) Neither the Applicant, Julie MacFarlane nor the Respondent, Timothey MacFarlane, shall travel with the children outside of Ontario without the expressed written consent of the other parent;

(12) The Applicant, Julie MacFarlane is hereby authorized to obtain passports and other travel documents on notice to but without the consent of the Respondent, Timothey MacFarlane;

(13) That the Peel Regional Police, Sherriff's Officers and/or such other law enforcement agencies as may have jurisdiction are authorized and directed to enforce paragraph 4(a) above only should the Respondent, Timothey MacFarlane, not return the children as ordered;

(14) The Respondent, Timothey MacFarlane, shall pay child support to the Applicant, Julie MacFarlane, for the three (3) children of the relationship, namely Andrew Mark MacFarlane, born May 9th, 2013, Eliza May MacFarlane, born May 9th, 2013, and Aaron Peter MacFarlane, born September 11th, 2015 in the amount of $1,181.00 per month commencing September 1st, 2018 and on the first day of each month thereafter based on his declared 2016 annual income of $59,485.00.

(15) A Support Deduction Order is to issue;

(16) All temporary orders are vacated; and

(17) Any claims raised in the Application dated October 7th, 2016, the Answer dated December 19th, 2016, the Amended Application dated July 18th, 2017 and the Amended Answer filed August 9th, 2017 not dealt within this order are withdrawn.

[81] Counsel for Ms. MacFarlane shall prepare the order and approval by Mr. MacFarlane is waived. Courts’ Administration is to expedite the issuance and entering of this order.

COSTS

[82] If the parties are unable to come to an agreement on this issue, written submissions are to be provided in accordance with the following time lines:

(a) Submissions on behalf of Ms. MacFarlane, limited to five (5) pages in length excluding offers to settle and a Bill of Cost, can be served and submitted by counsel by September 21st, 2018;

(b) Submissions in response by Mr. MacFarlane or a counsel retained by him for this purpose, limited to five (5) pages in length excluding offers to settle and a Bill of Cost, can be served and submitted by counsel by October 19th, 2018; and

(c) Submissions in reply, on behalf of Ms. MacFarlane, limited to two (2) pages in length, can be served and submitted by counsel by October 26th, 2018.

[83] Cost submissions, with proof of service, can be forwarded to my judicial assistant, Ms. Ana Boras, electronically at ana.boras@ontario.ca or by facsimile transmission at (905) 456-4829.

Released: August 28, 2018

Justice L.S. Parent

Corrigenda: August 30, 2018

The following amendments are herein incorporated into my Reasons for Judgment released on August 28th, 2018:

a) The Applicant identified as “JULEI MACFARLANE Applicant” is corrected to read “JULIE MACFARLANE Applicant” on page 1;

b) The Court File Number is corrected to read “Brampton 1020/16”; and

c) Under the heading “ORDER”, the child support term detailed in my decision is amended as follows:

(14) The Respondent, Timothey MacFarlane, shall pay child support to the Applicant, Julie MacFarlane, for the three (3) children of the relationship, namely Andrew Mark MacFarlane, born May 9th, 2013, Eliza May MacFarlane, born May 9th, 2013 and Aaron Peter MacFarlane, born September 11th, 2015 in the amount of $1,181.00 per month commencing September 1st, 2018 and on the first day of each month thereafter based on his declared 2016 annual income of $59,485.00.

Leave is granted to incorporate these amendments into the final order, to be issued and entered, granted on August 28th, 2018.

MacFarlane v. MacFarlane, 2018 ONCJ 584

Case Summary

ONTARIO COURT OF JUSTICE

PARENT J.:

BACKGROUND

RELEVANT HISTORY OF THE LITIGATION PRIOR TO TRIAL

NATURE OF THE PROCEEDINGS

REPORT FROM THE OFFICE OF THE CHILDREN'S LAWYER

ANALYSIS

ORDER

COSTS

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1

Legislation 2