V.P. v. D.M.

Court File No.: D11689/17

Date: April 29, 2019

Ontario Court of Justice

Before: Justice Melanie Sager

Heard: April 1, 2, 3 and 4, 2019

Reasons for Judgment released: April 29, 2019

Counsel

Aristoteli Lebedev — counsel for the applicant(s)

Julia Tremain — counsel for the respondent(s)

I. Introduction

[1] This trial proceeded in order to determine the appropriate access schedule to be exercised by the Respondent (father) to the child C.B., born […], 2013, age 5 1/2 years, and to determine his child support obligation to the Applicant (mother).

[2] On October 23, 2017, the mother issued an Application in which she requested, amongst other relief, orders for sole custody of C.B. and child support payable by the father retroactive to the date of C.B.'s birth. The mother also requested an order that the father's access be exercised three days per week with no overnights.

[3] The father filed an Answer on December 27, 2017, in which he requested orders for joint custody and shared parenting of C.B. Prior to the commencement of the trial the parties resolved the issue of custody by agreeing to a final order granting the mother sole custody of C.B.

[4] At the time of trial, the mother's position regarding the father's access changed such that she is requesting a final order that he have access to C.B. alternate weekends from Friday to Sunday and every week from Tuesday to Wednesday. The father continues to pursue a final order for shared parenting of C.B.

[5] With respect to the issue of child support, the mother asks for an order fixing the father's child support obligation back to May 2014 with credit for amounts paid by the father. The father opposes a retroactive award but argues that if there is to be one, it should not be retroactive beyond three years from the date of the Application. In terms of prospective child support, the father seeks a set off of the parties' child support obligation pursuant to section 9(a) of the Child Support Guidelines based on their respective incomes.

[6] At the trial both parties gave evidence. In addition, the court heard evidence from the father's sister and nephew on behalf of the mother and three of the father's friends on behalf of the father.

II. Issues for Trial

[7] The trial of this matter proceeded on April 1, 2, 3 and 4, 2019. The issues to be determined by the court are as follows:

1. What access schedule by the father to C.B. is in her best interests?

2. If C.B. spends roughly equal time with her parents, what amount of prospective child support, if any, should be payable by one parent to the other?

3. If C.B. does not spend roughly equal time in her parents' care and is primarily in her mother's care, what amount of prospective child support is payable by the father to the mother?

4. Should child support be payable and in what amount by the father to the mother for any period prior to the date of the issuance of the mother's Application?

III. Background

(a) History of the Parties' Relationship

[8] The mother, a nurse, is 47 years old. The father is 53 years old and employed by […] in the Service Planning Department. They met on-line some time in 2010 and while they maintained a relationship it was mostly one of friendship. At some point during this friendship, the mother purchased a condominium in the same building as the father. They had a few intimate encounters and the mother became pregnant.

[9] The parties never lived together and were never involved in a monogamous relationship.

[10] The parties' respective descriptions of the events leading to C.B.'s birth are diametrically opposed. The mother's evidence is that when the father learned she was in the process of attempting to conceive a child through a sperm donor he offered to father her child but she declined his offer. The father's evidence is that the mother confided in him that she wished to have a baby and asked him to father her child but he rejected her proposal saying he did not want to have a baby with someone he was not in a relationship with.

[11] Six years later, not much turns on the fact that they cannot agree on the events leading up to C.B.'s birth.

[12] After C.B. was born, the mother was home on a yearlong maternity leave caring for the baby full time and the father visited the child regularly in the evenings upon his return home from work. The parties do not agree on the frequency of these visits or the level of care provided to C.B. by the father. The father says that he visited C.B. every evening and attended to all her needs during his visits. The mother says his visits were infrequent immediately following her birth and when they did occur, the father simply visited or played with C.B., he did not care for her.

[13] The parties' relationship was fairly amicable until some point in 2016 when it deteriorated as a result of disagreements between them as to when the father should have care of C.B.

[14] The father's evidence is that the mother used him to have a baby and that once that happened he was dispensable. He believes that the mother has treated him as a sperm donor and blank cheque. All he is trying to do is assert his right to be an involved father for his daughter who he loves very much. He believes that it is in C.B.'s best interest to spend equal time with her parents.

[15] The mother's evidence is that she has always supported C.B.'s relationship with the father but once his involvement became an intrusion in her life and upsetting to C.B.'s routine and stability she attempted to create boundaries which the father misinterpreted as obstacles to having a full and meaningful relationship with C.B.

[16] C.B. is a 5 1/2 year old girl who is in senior kindergarten. She is described as curious, energetic, chatty and happy. She does well in school and there was no evidence of any struggles or special needs. C.B. loves her parents very much and is closely bonded to both of them.

(b) History of the Litigation

[17] On January 12, 2018, the parties consented to a temporary without prejudice order on the following terms:

1. C.B. shall reside with the father every other weekend from Friday at 3:00 p.m. until Monday at 9:00 a.m.; from Tuesday after school until return to school Wednesday morning following a weekend the father does not have care of the child; and, following a weekend the father had care of the child, Tuesday and Thursday from after school until 7:00 p.m.;

2. The child shall reside with the mother at all other times when not in the father's care;

3. Pick up and drop off shall take place in the lobby of the mother's condominium building or at the child's school;

4. The child's bedtime shall be at 8:00 p.m.;

5. The father shall pay the mother child support for C.B. in the amount of $944.00 per month commencing January 1, 2018 based on the father's annual income of $104,377.00 and the table amount for one child pursuant to the Child Support Guidelines.

[18] On April 13, 2018, the case management judge, Justice Roselyn Zisman requested the involvement of the Office of the Children's Lawyer (OCL), who accepted the referral on May 16, 2018 and appointed a clinical investigator to conduct a custody and access investigation and prepare a report for the court.

[19] On May 17, 2018, Justice Zisman heard motions brought by both parents. The mother requested orders for temporary sole custody of C.B., a specified access schedule for the father and an order for child support retroactive to the child's date of birth. The father requested an order for temporary joint custody, primary residence with him, specified parenting time for the mother, and, a set off of each parent's child support obligation pursuant to subsection 9(a) of the Child Support Guidelines based on their respective incomes.

[20] On May 29, 2018, Justice Zisman released her Reasons for Decision on the motion and made the following orders:

1. The mother shall have temporary sole custody of C.B.;

2. The father shall have access to C.B. on a two week cycle as follows:

   (a) Week One: Tuesday and Thursday from after school until 7:00 p.m. and Friday from after school until Sunday at 6:00 p.m.;

   (b) Week Two: Tuesday from after school until Wednesday return to school;

3. The father shall personally pick up the child at school or if he is unable to do so, in the lobby of the mother's condominium building or the child's daycare if applicable;

4. The father shall return the child at the end of each visit to the mother in the lobby of her condominium building;

5. The father shall not delay or prolong the return of the child to the mother;

6. The father shall not speak disparagingly of the mother or permit any third party in his presence to do so;

7. Neither party shall expose the child to any conflict or discuss the court proceedings with her;

8. Each party shall have two consecutive or non-consecutive weeks with the child during the summer of 2018; and,

9. The father shall continue to pay child support to the mother for C.B. in the amount of $945.00 per month.

[21] On July 13, 2018, Justice Zisman ordered the father to pay the mother her costs of the temporary motion fixed at $9,288.40.

IV. The Evidence

[22] The mother's version of the relevant evidence can be summarized as follows:

(a) The parties were involved in a very brief relationship during which C.B. was conceived.

(b) After C.B. was born, the father, who was living with his girlfriend, did not show an interest in C.B. until she was approximately 3 years old. He did not actively parent C.B. or care for her nor did he provide the mother with regular child support.

(c) As she required help caring for C.B., she arranged for her step mother to come from the Philippines to live with her and to assist in C.B.'s care.

(d) The father did not tell his family about C.B. until shortly before her first birthday.

(e) During C.B.'s first year, the father visited C.B. infrequently and for short periods of time. As she got older, his visits became longer. Even when the visits became longer, the father did not take more responsibility for C.B.'s care as that was her and her step mother's responsibility.

(f) As the father began to visit C.B. more frequently, he would come and go from her home as he pleased (they owned condominiums in the same building and had keys to the other's unit) making it difficult for the mother to establish a routine for C.B. As she attempted to arrange a regular schedule for the father's visits, she says he refused to cooperate to make such a schedule and said that he can see C.B. whenever he wants.

(g) The parties' inability to agree on a parenting schedule for C.B. led to disagreements and arguments during which the father was verbally abusive towards her and used extremely offensive and abusive language in written communication. He was particularly angry about her request to return his copy of a key to her home.

(h) Around the fall of 2016, she proposed that the father begin caring for C.B. every other weekend. He would not agree as he wished to be able to visit C.B. at his convenience. She continued to facilitate access by the father at his convenience but this led to further conflict around issues such as return times and C.B.'s bedtime and routine.

(i) The father came over in the evening to see C.B. and interrupted the bedtime routine she was trying to institute. The father showed little concern for C.B.'s bedtime and the routine and not only would he expect to see C.B. whenever he came to her home, he would contact her in advance to inform her that she or her step-mother should have C.B. ready for him upon his arrival in 10-15 minutes.

(j) As a result of the deterioration of the parties' relationship, she changed the locks on her door. If she refused to let the father in her home, he would bang on her door until she relented. Eventually she began to look for a new residence.

(k) As a result of the control she was attempting to take over the situation, she endured rude and abusive emails and text messages from the father in which he called her stupid, an idiot, bitch and cunt. The father also engaged in blaming and manipulative behaviour alleging that the choices she made are selfish and contrary to what is best for C.B.

(l) It was only after she told the father in April 2017 that she was going to commence court proceedings to establish a regular parenting schedule for C.B. that he began to exercise more access. This also led to the father insisting on having C.B. in his care every weekend, much to her dismay.

(m) When she asked the father for some weekend time with C.B. he argued that he only has her 2 days per week and as she has C.B. the majority of the time, he should be entitled to every weekend.

(n) The father also began to keep C.B. out late or not return her to the mother's home insisting that she sleep at his home.

(o) The father is extremely controlling, intimidating and a bully making it impossible for her to work cooperatively with him. If she does not agree with him he becomes enraged and belittles her. He has been mentally and verbally abusive towards her.

(p) If the father feels he is losing control of a situation he can be "shockingly vindictive".

(q) She proposed the parties attend counselling prior to the commencement of litigation to address their differences but the father refused.

(r) She ultimately commenced this litigation to formalize a parenting plan and obtain child support from the father.

(s) After she commenced litigation, the father began to involve C.B. in the parents' dispute including telling her that she cannot spend more time with him because her mother will not allow it and recording C.B. when she was upset at not being able to go with her father when she saw him in the building both parents lived in at the time.

(t) A shared parenting arrangement is not in C.B.'s best interests and the father's request for equal parenting time is motivated by his desire to pay little to no child support.

Summary of Father's Evidence

[23] The father's version of the relevant events can be summarized as follows:

(a) The conflict between him and the mother began to percolate before C.B. was born as they had different expectations about the role each of them would play in C.B.'s life.

(b) Leading up to C.B.'s birth, the parties were friends and never committed to a serious relationship. He was at the hospital when C.B. was born and took video and pictures.

(c) He kept the fact that he had a daughter a secret because the mother asked him not to tell anyone. Despite her request, he did tell co-workers and friends.

(d) He told some of his family members about C.B. shortly after her birth and he told his mother in September 2013.

(e) He arranged his work schedule so that he could spend as much time as possible with C.B. after work hours. He would go to the mother's home after work and spend time with C.B., feeding her, taking her for walks and to the park, tending to all of her needs and putting her to bed. He was even able to bottle feed C.B. when she was a baby as the mother expressed milk for him to be able to do so.

(f) Prior to the commencement of court proceedings, he was an equal caregiver to C.B. who was with him on a daily basis from the time he returned from work until he put her to bed at night during which he provided for all of her needs.

(g) His relationship with the mother changed in the summer of 2016 when she no longer allowed him to have a key to her home. He used to be able to come and go from the mother's home for the sole purpose of caring for C.B. or having access to C.B.'s belongings and when that stopped he felt invisible. His feeling of being marginalized in C.B.'s life was exacerbated by the mother's unwillingness to share information with him about C.B.'s activities.

(h) C.B. began spending overnights in his home when she was approximately 2 years old. He would have liked overnights to occur sooner but did not make a fuss as he was having unrestricted parenting time with C.B. every day. He "remained silent for the sake of keeping the peace".

(i) As C.B. grew older and began to "express her desire to have more frequent overnights with me", the mother refused which caused conflict between them. He did not understand why the mother would not agree to C.B. spending overnights with him during the week in addition to weekends, especially since they lived in the same building and transitions would be seamless.

(j) He was upset with the mother and regrets the tone of the emails and texts he has sent the mother for which he has apologized. He no longer communicates with the mother in this way and has not done so for a long time.

(k) He co-parented C.B. up to January 2018 (the date of the temporary without prejudice order) and shared in all aspects of C.B.'s care. After that the mother has systematically marginalized him from C.B.'s life. The mother is "determined to relegate me to a 'visitor-only' status".

(l) He shares a very close relationship with C.B. and she is extremely attached to him. He purchased a two bedroom condominium so C.B. could have her own room which he lavishly decorated for her. She misses him and wishes to spend more time with him.

(m) When he raises any concerns with the mother about her care of C.B. or incidents described to him by C.B. that took place when she was in the mother's care, the mother is dismissive with him and shows no interest in addressing his concerns.

(n) He says that the way the mother treats him just reinforces in his mind that she used him for the sole purpose of impregnating her. He is upset and feels used.

The Report and Recommendations of the Office of the Children's Lawyer

[24] The clinical investigator appointed by the Office of the Children's Lawyer (OCL) has over 30 years of experience. She has conducted hundreds of custody and access investigations. She has an impressive curriculum vitae. She completed her report on September 4, 2018.

[25] The clinical investigator met with both parents privately, observed both parents with C.B., had private conversations with C.B. and spoke to the principal of her school and the instructor of a parenting course completed by the father. She also reviewed the court documents, the clinical notes and records of the father's doctor, the clinical notes and records of the mother's and C.B.'s doctor, a report from the Children's Aid Society of Toronto and the records provided by the Toronto Police Services.

[26] The clinical investigator made the following important findings in her report:

(a) C.B. is a curious, energetic and happy child.

(b) The mother has always been C.B.'s primary caregiver.

(c) C.B. is very connected to both parents and has a positive relationship with them.

(d) Both parents displayed good parenting skills.

(e) The mother is a loving, devoted mother who is attempting to provide some boundaries around her contact with the father and some structure in terms of C.B.'s parenting time.

(f) The father is a loving and devoted father who is concerned that his relationship with C.B. is being attacked.

(g) The father explained that his verbally abusive emails to the mother were a result of feeling powerless when the mother was trying to restrict his time with C.B. and he wanted to hurt her back.

(h) The father has been consistently involved in C.B.'s life seeing her on a daily basis.

(i) C.B. is in the middle of her parents' conflict and finding it difficult to cope with her situation.

(j) C.B. misses seeing her father daily.

(k) C.B. has been told adult information by her father including that her mother was happy that the judge said she could not see her father more until she was older.

(l) The father told C.B. that her mother only pretends to love her.

(m) C.B. may believe that her mother does not really love her because she will not allow her to spend more time with her father.

(n) The father produced audio tapes for the clinician to listen to which she said demonstrated that the father spoke negatively about the mother to C.B. and in front of her and put C.B. and her grandmother in the middle by repeatedly asking the grandmother if C.B. could sleep at his home.

(o) The father has made it difficult for C.B. to leave after his parenting time by drawing out the process of saying goodbye which increased C.B.'s distress about leaving him.

(p) The father made C.B. feel responsible for the parenting schedule by telling C.B. to ask her mother is she could sleep over at his home.

(q) The father appears to be unable to contain his own emotions about wanting to spend more time with C.B., which can lead to him making statements in front of C.B. that upset her.

(r) Counselling may assist the parents in communicating with each other so that they may effectively co-parent their daughter in the new reality of their separation.

(s) The father may be able to learn strategies to protect C.B. from the parental conflict through counselling.

[27] The clinical investigator recommends that the mother be granted sole custody of C.B. She writes in her report, "With respect to custody, joint custody is not appropriate in families where there is high conflict. [The mother] has always been [C.B.]'s primary caregiver and she should have sole custody."

[28] The clinical investigator recommends a shared parenting schedule for C.B. More specifically, she recommends that C.B. be in her father's care when the mother, who works nights 4 out of every 9 days, is working.

[29] The clinical investigator reported that the mother is opposed to C.B. spending mid-week overnights at the father's home as she does not believe that he sets an appropriate bedtime for C.B. The clinical investigator concluded that "If [the father] can adhere to [C.B.]'s 8:00 p.m. bedtime on school nights (emphasis is mine) it makes sense for him to have [C.B.] during the times when [the mother] is working." The clinical investigator's opinion is that C.B. should "be in her father's care when the mother is working rather than in the care of third parties."

[30] The clinical investigator recommends that if the mother's work schedule changes, the parties should cooperate to alter the schedule to maintain the shared parenting arrangement.

[31] Finally, the clinical investigator recommends that both parents attend counselling to acquire the skills needed to protect C.B. from their conflict.

V. The Law

Access

[32] Subsection 24(2) of the Family Law Act (the Act) sets out eight considerations for the court to consider in determining issues of custody and access. No one factor has greater weight than the other, nor is one factor particularly determinative of the issue. See: Libbus v. Libbus, [2008] O.J. No. 4148 (Ont. SCJ). The eight factors are as follows:

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.

Factor #2: The child's views and preferences, if they can reasonably be ascertained.

Factor #3: The length of time the child has lived in a stable home environment.

Factor #4: 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.

Factor #5: Any plans proposed for the child's care and upbringing.

Factor #6: The permanence and stability of the family unit with which it is proposed that the child will live.

Factor #7: The ability of each person applying for custody of or access to the child to act as a parent.

Factor #8: The relationship by blood or through an adoption order between the child and each person who is a party to the application.

[33] The court has given consideration to all of the relevant factors pursuant to subsection 24(2) of the Act which will be reviewed below.

[34] The court also considered subsection 24(4) of the Act which reads as follows:

Violence and Abuse

24(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person's household; or

(d) any child.

[35] In assessing both parties' claims and their ability to act as a parent, the court considered the evidence of both parties in relation to allegations of verbal and emotional abuse.

VI. Review and Analysis of the Parties' Evidence

(a) The Parenting Regime Prior to the Commencement of Litigation

[36] There is a significant amount of evidence from both parents to support the conclusion that the father has not been an equal caregiver to C.B. nor did he co-parent with the mother. Some examples are as follows:

(a) The mother took a year-long maternity leave during which she was C.B.'s primary caregiver.

(b) The father visited C.B. regularly after work until she went to bed. He helped getting C.B. ready for bed and putting her to bed in the mother's home until she was at least two years old when she began spending overnights in her father's home on weekends.

(c) The parties agreed that the father had a key to the mother's home until October 2016 when he was no longer permitted to enter the mother's home when he wished as she changed the locks on her doors.

(d) In August 2016 when the mother asked the father to return his key to her home, he acknowledges in emails that all of C.B.'s belongings are in the mother's home.

(e) At some point in late 2016, the father began exercising access to C.B. on the weekends and complained to the mother via text message that he only had care of C.B. 27% of the time. He went on to say that as the mother had C.B. the majority of the time, he should be entitled to have her in his care every weekend.

(f) In October 2016 the father sent the mother a text message complaining that she did not send a toothbrush for C.B. with her clothes and that without a key to her home, he does not have access to C.B.'s belongings or her medicine.

(g) In 2016 the father asked the mother if she had children's Tylenol for him to give C.B. as he apparently did not have any in his home.

(h) On October 23, 2016, the father sent the mother a lengthy test message in which he demeaned her for changing her locks and denying C.B. the use of her washroom, where she was more comfortable. The father told the mother that C.B. kept asking to use the washroom "at [C.B.]'s house".

(i) While the father says he has taken C.B. to only two doctors' appointments because the mother purposely schedules C.B.'s doctors' appointments when he is at work, the mother provided a letter from C.B.'s doctor dated April 25, 2018, confirming that only she has taken C.B. to the doctor over the past 4.5 years.

(j) Only the mother and her step mother took C.B. to an early years centre between July 2015 and April 30, 2018, as evidenced by the letter written by the Coordinator of the Child and Family Support Programs at The 519 dated April 30, 2018. The father says that he only learned C.B. was attending this program when he proposed to the mother that C.B. begin attending an early year's centre and she told him C.B. was already doing so.

(k) The father insists that until January 2018 he cared for C.B. every evening upon his return from work. The court does not accept this evidence as accurate or realistic. The parties both produced endless evidence on the conflict they were having over the parenting schedule and the steps the mother took to limit the father's attendance at her home. The father did not provide an adequate answer when asked if he cared for C.B. every evening until January 2018, when did the mother, who was also working spend time with C.B.?

[37] While it is clear from the evidence that the father was not equally responsible for C.B.'s care until January 2018, the court finds that the mother has understated the amount of time C.B. had contact with her father. The evidence supports the father's position that he had regular and frequent contact with C.B. after work especially when she was a baby. The court does not accept the mother's evidence that the father had little to do with C.B. until she was 3 years old. The mother's own email to the father asking him to take paternity leave and care for C.B. for two months when she was only 10 months old seems unlikely if the father was as uninvolved as she claims.

[38] The court also specifically rejects the mother's argument that the father is seeking equal time with C.B. in order to reduce his child support obligation to her.

Conclusions Regarding C.B.'s Primary Caregiver

[39] The court finds that the mother has always been C.B.'s primary caregiver. She took maternity leave and stayed home to care for C.B. for the first year of her life. It is disingenuous for the father to claim that he was an equal caregiver because he attended at the mother's home most evenings after he returned from work to be with C.B. when she was a baby. Even though the mother was solely responsible for C.B.'s care all day, including feeding, bathing, doctors' appointments, napping, changing her, and shopping for her as well as caring for her throughout the night after she went to bed, the father considered himself to be equally involved in C.B.'s care.

[40] Once the mother changed the locks to her home and did not allow the father to come into her home as he pleased, C.B. began spending overnights at the father's home on weekends. During the week, the father attended at the mother's home some evenings to visit C.B. after work. He took her for walks and to the park and assisted putting her to bed. The father's visits after work do not make him a co-parent as he believes.

(b) Communication Between the Parties

[41] The mother's evidence is that the father was extremely emotionally and verbally abusive towards her particularly in his written communications. The mother provided many examples of the manner in which the father communicated with her to highlight his inability to control his anger towards her and the abuse she suffered. Her concern is that he cannot hide his anger from C.B. and eventually he will negatively influence their relationship. In other words, she is very worried the father will turn C.B. against her. Some examples of the manner in which the parties communicated are described below.

[42] On August 22, 2016, the father became upset with the mother in a text message for taking C.B. to see his sister without informing or consulting him. When she responded by telling him that she is not obliged to consult with him over such an issue, he responds by telling her to "go fuck yourself" and "if you had any common courtesy towards me (as you never had) this would have been discussed with me before being decided!"

[43] In the same string of text messages, the father attacks the mother for allowing C.B. to be driven by his sister, J.F. and for allowing C.B. to sleep at her other paternal aunt's home with J.F. and her daughter M.F. When the mother tries to assure the father via text that J.F. is more than capable of transporting C.B. the father texts, "You're a fucking idiot!" and "One thing you forgot is your opinion means nothing to me as you mean nothing to me."

[44] In October 2016 when the mother asked the father to return his key to her unit he became quite upset and abusive towards her. To illustrate the father's abusive response, the mother provided several text message exchanges between the parties. The father chastises the mother for wanting her key back as he views this as an attempt to keep him from C.B. In text messages he calls her "fucking pathetic and so childish"; a "bitch", a "fucking idiot" and "worse then [sic] a child".

[45] When the mother changed the locks to her home in October of 2016, the father texted the mother complaining of her "great fucking idea to change your locks FOR NO GOOD REASON" and blaming the mother for his inability to get inside her home to get Tylenol for C.B. who was not feeling well. He sent the mother a lengthy text message in which he wrote, "I hate you for hurting her like this FOR NOTHING!!!!" and "Hope you're happy with your new fucking lock which you got to keep her Father out!"

[46] On October 22, 2016, the parties had an exchange of text messages in which the mother repeatedly asked the father to return C.B. to her as they were going out. The father refused to bring C.B. to her mother as she was watching a movie. The father told the mother in a text that if she will not send C.B.'s grandmother to pick her up from his home, C.B. will stay with him "because her mother is a cunt".

[47] The mother provided a text exchange between the parties on Halloween 2016, in which she advised the father that she was taking C.B. trick or treating in North York with her friend's children. The father was upset at not being consulted "on a major annual event" and that he has "no say". The mother tells the father where they will be so that he can join them. He clearly believes that the mother is purposely trying to make it difficult to find her and C.B. and he sends the following text message:

You are a real fucking cunt…..you know I won't find you….hope you're happy….I've been driving around looking for 45 fucking minutes…I'm going home! Thanks for wasting my time and robbing your daughter of another memory with her Daddy. I fucking hate you!!!!! You've now got a couple of months to plan how you'll fuck up Christmas!!!!!! Filthy pig!!!!!

[48] The mother also provided copies of text messages exchanged between the parties on June 18, 2017, where she tells the father that they must agree on a parenting schedule and in the string of texts the father calls the mother a "stinky cunt" tells her she is "delusional", "truly sick", "psycho", "fucking truly insane", "fucking sick stinky cunt", "fucking sick lying bitch", "a lying cunt" and he tells her to "Fuck off and die for all I care!"

[49] A few days later on June 21, 2017, the mother attempts to once again raise via text with the father, the issue of implementing a parenting schedule for C.B. He complains that she is being unnecessarily rigid rather than just "simply respecting my wishes". The mother repeats her desire for a set parenting schedule to which the father responds, "Here's the schedule….when I say so."

[50] Despite how vile and abusive the father's text messages are, the mother never responded in kind. She is always calm and composed and tries to focus on the issue in her responses. The court was not provided with any evidence to suggest the mother was anything but civil with the father in her communication despite conduct by him that would make it very difficult for anyone to maintain their composure.

Conclusions Regarding the Parties' Communication

[51] The text messages the father sent to the mother exude an alarming level of anger. His verbal and emotional abuse of the mother is a very serious issue for the court. What is obvious to the reader and of major concern to the court is how disproportionate the anger is in relation to the issue. The vitriol in his emails is often completely unprovoked or unleashed with such vigor in response to a relatively unimportant or innocuous issue or incident that it begs the question, what is the real reason for the father's anger?

[52] The father says he regrets the way in which he communicated with the mother and he is embarrassed. He says he apologized to the mother in writing for his abusive communications on many occasions yet he did not produce any evidence of an apology. The father also says he will never resort to such offensive behaviour again.

[53] An unresolved issue for the court is the father's admission that his use of such offensive and abusive language towards the mother was designed to hurt her in retaliation for the way she treated him. While the father said he was sorry for the way he behaved towards the mother, there was no introspection shown by him with respect to his admission that he was willing to harm the mother of his child in this manner.

[54] The court finds that until the father addresses his feelings around C.B.'s conception and his belief that he is just a cheque to the mother who is systematically marginalizing him in C.B.'s life, he will be less likely to manage his emotions increasing the prospect of exposing C.B. to inappropriate comments and behaviour.

[55] The need for assurance that a child will not be exposed to adult conflict is heightened in a shared parenting arrangement. The court was not provided with any evidence that the father has engaged in the counselling recommended by the clinical investigator to learn strategies to shield C.B. from the parent's conflict. Without the father delving into the source of his anger and learning strategies to reduce or combat it, the risk to C.B. of being impacted by the parents' conflict in a shared parenting arrangement where there is likely to be frequent contact between the parents is very high. As such his promise not to resort to abusive language and behaviour directed at the mother again is insufficient.

[56] The court finds that with the level of anger and lack of emotional maturity displayed by the father, the fact that he has not engaged in any counselling or therapy to understand what truly triggers his anger, it is unlikely that he will be successful more often than not in shielding C.B. from his feelings about the mother. In order to find that C.B. is not at risk of being negatively impacted by the type of behaviour the father has displayed in the past, the court expects concrete evidence of a change in the father's attitude in the present and none was provided.

(c) Exposure of C.B. to the Conflict and Mother's Belief that Father Will Damage Her Relationship with C.B.

[57] The mother's evidence is that there have been several instances where C.B. made spontaneous statements to her that demonstrate the father is exposing C.B. to their conflict and likely having adult conversations with her. Some examples are that C.B. has said that her mother is not nice to her father, her mother is stealing her father's money, she has asked her mother why she spends the amount of time she does with each parent, and, on one occasion when the mother said hello to C.B. when she was with her father at curriculum night at the school, C.B. looked at her father and did not respond other than to wave.

[58] The father involved C.B. in the parents' conflict before the litigation as demonstrated by the text message the father sent the mother in which he advised her that C.B. was upset that she could not use the washroom in the mother's home while in the father's care because the mother had changed her locks. The father told the mother that C.B. kept asking to use the washroom "at [C.B.]'s house". In the text message the father tells the mother that C.B. asked him why he did not have the key to her home and when he told C.B. "because Mommy doesn't want me to have it" she looked sad and confused.

[59] As noted above, the clinical investigator from the OCL found that the father had directly exposed C.B. to the parent's conflict by telling her that her mother pretends to love her and that she was happy the judge did not allow her to spend more time with him.

[60] The father gave evidence that he felt the clinical investigator's description of the audio recordings of C.B. crying to see him was not a fair assessment as the only thing he did wrong, according to the clinical investigator, was to tell C.B. that she was not allowed to go with him. While the father says he understands what he did was wrong, the evidence suggests otherwise. He justified the recordings as he was desperate to demonstrate how close he and C.B. are and he added, "I agree I didn't realize I shouldn't have said, "I'm not allowed"." Her mother use to say that to her when she ripped [C.B.] out of my arms, "you're not allowed". He did not demonstrate at all that he understands why what he said to C.B. was inappropriate and could be harmful but rather justified it by claiming the mother has also used those exact words.

[61] The father's evidence demonstrates that he continues to engage in appropriate discussions with C.B. In late 2017, early 2018 the father says that C.B. told him that she is scared to sleep at her friend's house where her mother has left for sleepovers in the past. The father raised the issue with the mother and repeated what the mother said to C.B. in order for her to respond. This required C.B. to clarify for the father what she had told the mother. The father described that in order to get to the bottom of C.B.'s fears, he went back and forth between C.B. and her mother putting what one said to the other. The father was oblivious to how this could be difficult if not harmful to C.B. He clearly lacks understanding about the inappropriateness of questioning C.B. about being scared at her friend's home by telling C.B. what her mother said and asking C.B. to respond.

Conclusions Regarding Exposing C.B. to the Conflict

[62] The mother is concerned that the father will eventually force C.B. to choose between them. Nowhere in the father's evidence did he show any remorse for telling C.B. to ask her mother why she cannot see him more, that her mother was only pretending to love her and that her mother did not want him to have a key to her home. He also did not deny that he had said negative things to C.B. about how her mother treats him and that she is taking his money.

[63] In his evidence, the father did not address the clinical investigator's conclusion that he had involved C.B. in the conflict and spoken badly about the mother in front of and to C.B. The father also did not provide evidence of any counselling or therapy he has engaged in to learn how to better manage his emotions so as not to expose C.B. to his pain and frustration with the mother and the parenting schedule.

[64] The father's evidence exposed his lack of insight into how the comments he has made to C.B. may be harmful to her. He had the opportunity to explain what he has learned in this regard but instead either failed to acknowledge the comments at all or made poor attempts to explain or excuse his behaviour. The father has exposed C.B. to the conflict and his feelings about the mother and her position in the litigation. There is no evidence before the court that the father understands the impact that this can have on C.B. or that he has done anything to acquire a better understanding of when and how to communicate with C.B. around sensitive topics.

[65] The court finds that the father has not learned appropriate techniques to shield C.B. from the parents' conflict or how to effectively manage his emotions in front of her. As a result, the mother's fear that the father will continue to expose C.B. to their conflict and negatively impact her relationship with C.B. is not unreasonable.

(d) The Conduct and Judgment of the Parties and Its Impact on Their Parenting

[66] The mother called evidence that she argues highlights the father's questionable conduct and judgment in support of her position that a shared parenting regime is not in C.B.'s best interest.

i. The Peanut Butter Incident

[67] The mother describes the father as vindictive. His sister, J.F., and nephew B.F. gave evidence to support the mother's claims. J.F. described the troubling environment she and her brother grew up in where family members were ostracized by others if they did not do what was expected of them. Her evidence is that their mother discouraged a relationship with their biological father and was emotionally abusive. She said that her brother and her were determined to live their lives differently and bonded with one another around the commitment of always supporting each another. J.F. describes a fairly close relationship with her brother until approximately June 2016 when he sent her an email just prior to her arrival in Toronto for her family's annual visit with him, the mother and C.B. In the email the father advises his sister that he expects her to side with him in his dispute with C.B.'s mother which includes not having contact with her or seeing C.B. other than through him. He clearly takes a 'you are either with me or against me' tone in the email that he signs off with,

"The days of having it both ways are over! If during your visit, you feel that you ' must ' visit or plan an event with [the mother] – the person who has deliberately ensured my worst fear, I will not be a part of whatever that may be and it will have repercussions on 'our' relationship. I trust you will respect my wishes."

[68] J.F. found this email very troubling as she had a nice relationship with C.B.'s mother as did her two children. When they visited Toronto they usually stayed with C.B. and her mother. J.F. shared her concerns with the father via email and text before her arrival in Toronto. Once in Toronto she disregarded her brother's expectations and stayed with C.B. and the mother.

[69] The father's evidence is that at the time he sent his sister the email the mother was the cause of great stress and unhappiness in his life. He expected his sister to support him and not only side with him in the conflict but to be his advocate with the mother. The father, in no uncertain terms, has any regrets about sending this email to his sister.

[70] The email exchange with his sister is troubling for the court but the significance is magnified by the events that occurred during J.F.'s visit with her children to Toronto in June 2016. The father's niece, M.F., who is also his god daughter, is allergic to peanuts and according to J.F.'s evidence is quite anxious about the allergy. This led to J.F. reminding her brother prior to her arrival in Toronto to ensure that there is no access to peanut butter in his residence. The father assured his sister that he would remove the peanut butter from his kitchen and put it somewhere safe and away from C.B.

[71] During J.F.'s visit, the father's evidence is that C.B. wanted a peanut butter sandwich, which he made for her in his unit. They then went to the mother's unit and within a few seconds of sending C.B. into the mother's unit with the sandwich in hand he realized he had made a mistake and called her out. He then sent a text to the mother (not his sister) in which he said "something to the effect of peanut butter…I don't know what I texted her as it was inconsequential" and simply a precaution as he knew his niece was not in the mother's home at that time.

[72] At the time the father sent C.B. into the mother's unit, he says only his nephew B.F. was present, so there was no harm. He said he knew that his sister and niece were not there. As if he was implying the mother was partially to blame, the father said he was "panicking that I would be crucified if I was five minutes late giving [C.B.] back".

[73] J.F. says that her brother did not know that M.F. was not in the home when he sent C.B. in with the peanut butter sandwich. She also says that as her brother knows M.F. has a life threatening peanut allergy that causes her severe anxiety, it is not possible that he would forget this and give C.B. peanut butter. She also gave evidence that during her conversations with the father prior to her arrival, he asked her if he can give C.B. peanut butter when M.F. is visiting and J.F. told him he could not because if C.B. kisses M.F. after eating peanut butter that will trigger a reaction.

[74] In light of the father's 'you are either with me or against me' email and his threats that her failure to comply with his demands will have consequences on their relationship, J.F. considers her brother's actions to be deliberate.

[75] J.F.'s evidence is that she waited a few days to digest what had occurred before sending her brother a lengthy email in which she accused him of purposely sending C.B. into her mother's unit with a peanut butter sandwich endangering M.F.'s life. The father never responded to J.F.'s email and in fact never discussed the incident either in person or in writing with her, or anyone else for that matter. He says that immediately after the incident occurred, his sister sent him a text message that accused him of purposely putting her daughter at risk of harm so he chose not to respond to his sister's email. While the sister's email was produced for the court, the father did not provide the court with the text message he says his sister sent him immediately following the incident.

[76] The father says that as his sister accused him of purposely trying to harm his niece rather than just asking him what happened, he did not respond to her email. The father has not enjoyed a relationship with his sister or her children since the summer of 2016.

[77] At best the father made an irresponsible and potentially grave mistake giving C.B. a peanut butter sandwich while M.F. was visiting. At worst he was sending a warning to his sister of the "repercussions" she would face for taking "[the mother's] side in this dispute and that she was not supportive" of him.

[78] The father's explanation for not communicating with his sister after this incident took place is illogical. He does not explain why he has chosen not to speak to his niece who is his god daughter. The fact that the father's evidence makes little sense to the court bolsters the mother's argument that he is vindictive and the sister's evidence that the father's actions were deliberate.

[79] While the court cannot conclude conclusively that the father purposely attempted to expose his god daughter M.F. to peanut butter, it is entirely reasonable for the mother, his sister and her children to reach that conclusion in light of the email the father sent his sister on July 31, 2016, in which he told his sister to choose between him and C.B.'s mother and that her choice would have consequences on their relationship. He knew his teenage niece was deathly allergic to peanut butter, he agreed to put the peanut butter out of sight while she was visiting Toronto and his sister told him that C.B. cannot eat peanut butter while M.F. is visiting as that is enough to expose M.F. to serious danger. Despite all of these facts, the father not only gave C.B. a peanut butter sandwich but he allowed her to bring the sandwich to her mother's home where M.F. was staying (although he says she was not present at the time). The father's evidence on this issue is incomprehensible.

ii. The Envelope Incident

[80] In September of 2016, J.F.'s son B.F. came to Toronto for a short visit during which he stayed with the mother. Upon his arrival to the condominium building both parents lived in, the envelope that the mother left for him with the key to her unit was gone. Security camera images show that the father took it. The mother, J.F. and B.F. gave evidence on this issue to highlight the father's vindictiveness.

[81] The father's evidence is that he saw the envelope with his nephew's name on it and as "no one told him" B.F. was coming to Toronto he thought someone B.F. had gone to school with left him money; so, he took the envelope for safe keeping to give to B.F. who would get it from him the next time he visited. A few weeks later, the father says the mother asked him why he stole the envelope instead of "simply asking me why I had taken it". The father did not say he called his nephew or sister or anyone to tell them that he had the envelope addressed to B.F. B.F. gave evidence that his uncle did not contact him about the envelope.

[82] The father's evidence on this issue is suspect much in the same way his evidence on the peanut butter issue was difficult to understand. He did not adequately explain why he would take an envelope addressed to his nephew but not contact him to say he was holding it for him.

[83] Once again, the father's evidence lends support to the mother's concerns about the father's vindictive behaviour. As the father's explanation for taking the envelope makes little sense, it provides the court with evidence of the possible lengths to which the father will go to punish those who have wronged him.

iii. The Father's Living Arrangements

[84] The evidence of the father's vindictive nature is disturbing. He admitted that he wanted to hurt the mother because she hurt him and that he expected his sister to support him in isolating C.B.'s mother from their family as retribution for how she treats him. He showed no regret at all for instructing his sister to choose between him and the mother. Nor did he demonstrate any understanding of the effect his behaviour could have on C.B. including on her relationship with his family.

[85] The court finds that the mother is justifiably worried that the father's view of the world order such that you are either with him or against him will be taught to C.B. and possibly affect her relationship with C.B. in a negative way.

[86] The mother raised concerns about the father living with a woman and her 12 year old daughter and the possibility that they were assuming the responsibility of caring for C.B. when in the father's care. Her evidence is that she did not entirely understand the father's living arrangements but believed that the father was living in a one bedroom condominium with C.B., a woman and her 12 year old daughter. It was clear from the mother's evidence that she did not know much about this woman and her relationship with the father.

[87] The father's evidence is that sometime between February and April 2018 he met E.M. on line. In January 2019, after meeting her in person twice, he invited E.M., who was having financially difficulties, and her 12 year old daughter to move in with him and C.B. in his two bedroom unit (the father owns other units in the building as investments). The father explained that he bought them sleeping pads that they use in his living room. He did not know how long they were going to stay in his home but that he was not putting any pressure on them to leave. E.M. is able to assist the father in picking up and dropping C.B. off at school should he need assistance.

[88] Both the father and E.M. gave evidence that she and her daughter met C.B. for the first time after they had already moved into the father's condominium. E.M. said that she had never met C.B.'s mother. Her plan is to take this year to better position herself financially to possibly rent her own place next year.

[89] The father exercised extremely questionable judgment in not just allowing a stranger and her 12 year old daughter to move into his home with his 5 year old daughter, but to do so before C.B. had even met these people. He has two strangers sleeping on his living room floor without giving any thought to whether this is appropriate considering he has a young child. He also did not tell the mother that he had invited these people to live with him and C.B. or even consider introducing E.M. to the mother.

iv. Is the Mother Marginalizing the Father's Involvement in C.B.'s Life

[90] The father sees the mother's conduct on a whole as an attempt to minimize his involvement in C.B.'s life. According to the father, it began with her request for him to return the key to her condominium in 2016. The mother persisted in her efforts to exclude him by changing her locks and not allowing him free access to her home. Then she would only facilitate overnight access with C.B. on weekends. Next the mother commenced court proceedings and falsely claimed that she was C.B.'s primary caregiver and he is not nor has ever been an equal caregiver to C.B. The final step in the mother's plan was to move her residence to ensure he could not have frequent contact with C.B.

[91] The father claims that the mother's request when C.B. was less than a year old for him to give up any rights to a relationship with her is evidence of the mother's true motives.

[92] Despite being a loving and involved father, he says the mother ignores or disregards legitimate concerns he has raised with her about C.B. The father is very upset that the mother does not take his concerns seriously and says this is yet another example of her goal to minimize his role and input in C.B.'s life.

[93] The father views the mother's refusal to share the parenting of C.B. equally as the strongest evidence of her insistence that he just be a visitor in C.B.'s life. The father cannot accept the mother's marginalization of him as he claims he has dedicated his life to C.B. since she was born. He changed jobs to be closer to her and he altered his work hours so that he can get home early to be with C.B. all evening. As a result, he says he was involved in C.B.'s care on a daily basis upon his return from work until she went to bed.

[94] Now that C.B. is older, the father has demonstrated that he gets her to school on time, dresses her appropriately, makes her lunch, and, helps her practice speaking French. He is a dedicated and responsible parent. The father believes that in recognition of the co-parenting role he assumed since C.B.'s birth, his close relationship with her and to counter the mother's attempts to marginalize his role in her life, the court ought to make an order for shared parenting of C.B.

[95] The mother's evidence is that she asked the father to return the key to her home to create boundaries and to stop the father from coming and going at will and taking C.B. against her wishes. She wanted the father to agree to a permanent parenting schedule and routine for C.B. but he refused. When changing her locks did not achieve the result she expected, she moved her residence. She did not make this move to minimize the father's involvement in C.B.'s life but rather to minimize his involvement and the conflict it creates in her life.

[96] The mother's approach to the parenting schedule is that there is an access schedule in place by court order and the parties must follow it. She has never asked the father to care for C.B. if she or her step mother were not available; she would not do so in the future; she would have C.B. cared for by other family members before asking the father; on the single occasion the mother agreed to C.B. being in the father's care during her parenting time, she asked the father to make up her time; and, she does not support regular telephone access between C.B. and her father.

[97] The mother said in a candid and straight forward way that the father's access to C.B. will be as ordered by the court and nothing more. The mother gave evidence that the father must stick to the court ordered schedule both for physical time and telephone contact with C.B.

[98] The mother is weary of C.B.'s relationship with her father. This makes her rigid in relation to the father's parenting time, which is seen by the father as part of her plan to minimizing his presence in C.B.'s life.

Conclusions Regarding the Conduct and Judgment of the Parties and the Impact on Their Parenting

[99] The father has engaged in extremely hurtful and selfish conduct that could directly or indirectly effect his daughter. The manner in which he dealt with his own sister and her children which caused discord in their family that has not been repaired supports the mother's claims that the father can be "shockingly vindictive". The father's evidence did not help the court to better understand what had occurred and why he has done nothing to repair the damaged relationships. What is clear is that he takes no responsibility for the harm he has caused nor does he possess any understanding of how this damage will likely effect C.B. in the future.

[100] The father has also at times shown poor judgment and made decisions that are contrary to C.B.'s interests.

[101] The mother's opinion of the father and his relationship with C.B. must be considered in the context of the evidence as a whole. The mother sees the father through the lens of their conflict and the father's conduct towards her. She knows C.B.'s father as the man who told her daughter that she only pretends to love her and the man who told his own sister that if she continues to have a relationship with her, there will be consequences. She sees him as a man who she believes purposely exposed his niece and god daughter, who suffers from a peanut allergy, to peanut butter. Finally, the mother's view of the father and his role in C.B.'s life has been formed by the ease at which he is willing to belittle and demean her with extremely offensive language including "stupid", "bitch", "idiot" and "cunt".

[102] It is unrealistic and unreasonable to expect any parent not to let serious concerns about the other parent of their child impact their decision making process around facilitating a relationship between their child and that parent. When the concerns about the other parent are legitimate and serious, the concerned parent is expected to respond appropriately, proportionately and most of all, in a manner that is consistent with the child's best interests. That is what the mother has done in this case. She sees her unwillingness to support an expansion of time or contact between C.B. and her father as her way of protecting her daughter from the father's harmful conduct and poor judgment. In light of the evidence, the court cannot take issue with the position the mother has taken in relation to C.B.'s access to her father.

VII. Conclusions Regarding the Parents' Evidence

[103] Both parents are capable of physically parenting C.B. They have both contributed to the care and nurturing of a happy and healthy girl. While every parent has their parenting strengths and weaknesses, the father's weaknesses create a real risk of emotional harm to C.B. As the court finds that the father has not taken the necessary steps to address his inability to protect C.B. from the anger he has displayed towards the mother and his consuming need to be an "equal parent", the court is very concerned that the father will continue to involve C.B. in the conflict, use her as a confidante and pawn to get what he wants. As C.B. gets older, the risk her father poses to her emotional and psychological wellbeing grows exponentially as she will understand far more then she does as a 5 year old.

[104] Not only are the issues relating to the father's conduct and judgment concerning, but so too is his complete lack of self-awareness. He took no responsibility for the rift in his relationship with his sister and her children; he saw nothing wrong with inviting a total stranger and her 12 year old daughter to live with him and doing so without them having met C.B. or her mother; he showed little understanding of the inappropriateness of the conversations he has had with C.B., including the ones he recorded and played for the clinical investigator.

[105] The father's lack of insight into the parenting difficulties he has had including being unable to say no to C.B. was readily apparent in his evidence. The peanut butter sandwich is the best example of a situation where he should have said "no". There is also evidence that the father was unable to enforce a bedtime for C.B. and relented when she insisted on using the toilet in her mother's home while in his care. This will no doubt become a larger problem once C.B. realizes this weakness in her father, which will dramatically increase the potential for conflict between the parents if C.B. spent 50% of the time with her father.

[106] The father sees himself as the victim. He is a victim of the mother's attempt to eliminate him from his daughter's life; he is a victim of his sister's mistrust and disloyalty; he is a victim of the court system having been forced into agreeing to a temporary without prejudice parenting schedule that was inadequate; he is a victim of the mother's premeditated plan to use him as a sperm donor and a monthly cheque.

[107] The father has justified everything he has done; he justified the threatening email to his sister; he justified the vulgar language used in written communication to the mother; he justified taking the envelope addressed to his nephew; he justified the inappropriate conversations he had with C.B.; he even justified telling C.B. he is "not allowed" to spend more time with her by pointing the finger at the mother who he said used the exact same words with C.B. It was very clear to the court that the father felt compelled to provide a justification for everything he has done rather than take responsibility, explain what he has learned and why the court can conclude he has changed and will behave differently in the future. A compelling example was his attempt to blame the mother at least in part for his allowing C.B. to take a peanut butter sandwich into her home when his niece, who is allergic to peanuts, was visiting as he was rushed and worried he would be "crucified" for returning C.B. to her mother five minutes late.

[108] The court finds that there is no evidence to demonstrate that the father's attitude towards the mother has changed in any significant way. While he says he has changed and that there is little recent evidence of inappropriate behaviour by him towards the mother, it was readily apparent during his evidence that he sees himself as the victim and the mother as the villain and that this belief system informs his judgment and decision making process.

VIII. Issues with the Investigation of the Office of the Children's Lawyer

(a) Do the Facts Support the Recommendations?

[109] As the "author of an O.C.L. report is a fact finder", the clinical investigator's "recommendations are only a starting point and are not the last word." The court treats the evidence of the OCL as one piece of evidence for the court to consider. The evidence of the clinical investigator is not determinative of the issues but rather assists the court in determining the facts upon which to base its decision.

[110] While the clinical investigator followed most of the standard protocols she failed to speak with any of the parties' family members, specifically the mother's step mother who lives with and cares for C.B., the father's sister and she did not follow up with the father or his doctor after reading in his notes that he prescribed medication for the father's anxiety after he reported that he was under so much stress that he was yelling at his daughter. It is possible that further investigation by the clinical investigator might have assisted in providing a better understanding of the source of the father's anger and emotions and how to effectively address the way in which he expresses them.

[111] The recommendations of the clinical investigator are contraindicated by her findings in relation to the father's conduct and behaviour towards the mother and C.B. The clinical investigator concluded that this is a high conflict situation and that the father has spoken negatively to the child about the mother, has involved the child in the conflict, was abusive towards the mother, made the child feel responsible for the parenting schedule, has difficulty managing his emotions about wanting to spend more time with C.B. which can lead to his making statements in front of C.B. that are upsetting to her, and, that he requires counselling to learn strategies to shield C.B. from the parents' conflict. These conclusions do not support an order for shared parenting.

[112] Justice Robert Spence wrote in P.F. v. A.W. [2016] O.J. No. 6321 "that absent evidence of a change in attitude or therapy to address past bad behavior, the best way to predict how a person will behave in the future is to examine past conduct." In M.K. v. L.E., [2017] O.J. No. 1816, Justice Spence considered abusive behavior by the father directed at the mother and wrote, "My concern for the children is the danger that the father's toxic and abusive attitude toward the mother will cascade onto them. And the more expansive is the access the greater the opportunity for this to occur."

[113] In order for the court to find her recommendations compelling, it would have expected to read in the report and hear from the clinical investigator at trial that the father has taken steps to address his behaviour such that there has been sufficient change in his conduct. Absent a noticeable change in his attitude towards the mother; an understanding of the damage his behaviour can cause; and, the appropriate assurances that conflict between him and the mother will not trigger such behaviour in the future, a shared parenting regime is not in C.B.'s best interests.

[114] No such change in the father was discussed or acknowledged by the clinical investigator. To the contrary, the clinical investigator's evidence demonstrated that she herself is unsure that a shared parenting schedule could be successfully implemented in this case. Her evidence confirmed for the court that her investigative findings provide little to no support for her recommendations.

[115] Not only did the clinical investigator's evidence fail to provide support for her recommendations, to the contrary, her evidence clarified for the court that her recommendations were based more on hope then fact. For example,

(a) The clinical investigator was asked whether the abusive language the father used in written communication was a red flag for her. She replied "yes a lot of things raised red flags for me during this investigation, and that was one of them". The clinical investigator agreed that despite the numerous red flags, she still recommended a shared parenting arrangement as "I don't see [the father] as…generally an abusive man. He did say abusive words to [the mother], but I don't see him as a danger to his daughter. I don't see him exposing his daughter to violence. I don't see a problem with him having his daughter for an extended time."

(b) The clinical investigator was asked if she was satisfied with the father's explanation for using abusive language in his communication with the mother and she answered, "I wouldn't be satisfied or not satisfied. This is…just… something he did. He said he was sorry. He did this because he was really upset with her that she was…controlling him, and he wanted to attack her. And, that was what he said."

(c) When questioned further about the importance of her recommendation for the parents to attend counseling to learn strategies to shield C.B. from the conflict, the clinical investigator said, "I just worry that the parents will get into any disagreements…and they will happen. Like, that's life. That they won't be able to resolve them in a productive way. That it will be a negative way. Because it's not good for children that their parents can't talk to each other, that their parents can't be at their whatever school concerts together. You know it would be so good if they could co-parent this child. Because that's what their child needs."

(d) The clinical investigator was asked if she thought the parenting schedule she recommended would work if the parents cannot communicate better and co-parent C.B. She answered, "As long as the exchanges, the parents don't have to see each other. You know, it could... I don't know. I don't know if it will work or not."

(e) When asked what if the parents do not engage in the type of counseling she has recommended she said, "I would worry. I would worry that they would both expose their daughter to more conflict."

(f) The clinical investigator was asked if it is was her evidence that provided the father approves of the parenting schedule ordered by the court and he takes counselling to equip him with strategies to protect C.B. from the conflict, the child would do well in a shared parenting regime, she responded, "Hopefully he'll settle and won't be begging his child to stay with him and begging whoever to stay with him longer. Because a Judge's order, he has to abide by. And the other thing is, the reason I recommended that schedule, is because as I've mentioned before, the schedule that's in place now is a lot of back and forth for this child."

(g) The clinical investigator was asked if her recommendation is based on the belief that if both parties engage in counselling and a specific parenting schedule is put in place, that the parents would be able to make that schedule work and she replied, "I think they could."

(h) When ask what she thought might happen if a parenting schedule is ordered by the court that the father did not approve of, the clinical investigator said, "Well then, that would be a problem."

(i) The clinical investigator mistakenly believed that the concerning audio tapes she heard of the father's inappropriate interaction with C.B. took place before a parenting schedule was in place and said, "I'm thinking that once a schedule's in place, that both parents can live with, he'll settle."

[116] In Whidden v. Ellwood, [2015] O.J. No. 3815, Justice Chappel eloquently summarizes the importance that must be paid by the court to section 24(4) of the Act as follow:

"Evidence that a parent or a parental figure has engaged in emotionally or physically abusive behaviour towards a parent must be given considerable weight in carrying out the best interests analysis, even if the child has not been directly exposed to this type of behaviour. A finding that this type of conduct has occurred should cause the court to have great concern about the ability of the abusive parent to provide a safe and emotionally secure environment for the child, and to provide the type of parenting that will foster the child's emotional and social well-being and development."

[117] The court finds that the clinical investigator minimized the father's insulting and abusive communication with the mother and completely ignored the significance of his admission that he engaged in such offensive behaviour "to attack her" because he felt controlled.

[118] Not only did the clinical investigator fail to adequately acknowledge the significance of the father's abusive behaviour towards the mother, she did not address the concerns that the behaviour gives rise to in relation to the father's ability to appropriately parent C.B. This is a significant flaw in the investigation that negatively impacts the weight to be afforded to the recommendations of the clinical investigator by the court.

[119] The court finds the father's conduct towards the mother to be highly concerning. As difficult as the situation is between the parties and acknowledging that conflict between separated parents can create a heated and emotional environment, subsection 24(4) of the Act mandates the court not to treat this level of vitriol as typical or acceptable. What must be acknowledged is that this is very poor parenting. The way in which the parents treat one another goes directly to the issue of parenting. The court must acknowledge that abusing the other parent of your child be it verbally or in writing, is bad parenting. If this is how the father communicates when he feels the need to assert himself with the mother, how will these parents function in a shared parenting arrangement that will most certainly require frequent contact?

[120] A shared parenting arrangement for a 5 year old will likely require a significant amount of contact between the caregivers. Homework is forgotten, money is required for a school trip, extracurricular activities will require coordination and flexibility, arrangements will have to be made for C.B.'s care on non-school days when the parents are working; who buys birthday gifts for parties attended by C.B., who picks out C.B.'s Halloween costume, and who takes C.B. to the doctors and fills prescriptions?

[121] Before concluding a shared parenting regime, which will likely require frequent communication between the parents, is in the best interests of a 5 year old child, the court ought to be able to find at least that:

(a) The parties can speak to one another directly and not just in writing;

(b) The parents behave respectfully towards one another;

(c) The parties will cooperate to ensure the child's needs are being met;

(d) The parties are capable of putting the needs of the child before their own;

(e) The parties demonstrate a reasonable amount of emotional maturity and will demonstrate that emotional maturity when there is a disagreement; and,

(f) The parties will behave appropriately towards one another at all times in front of the child.

[122] The court cannot find that the parents in this case have or will acquire the attributes set out in paragraph 121 above.

(b) The Clinical Investigator's Treatment of C.B.'s Wishes

[123] When asked if her recommendation for a shared parenting schedule was based on the parents engaging in counseling to learn how to shield C.B. from the conflict, the clinical investigator answered, "My main recommendation is based on the fact that C.B. really, really misses her father and wants to spend a lot of time with him. "Hundreds and thousands of days" is what she told me."

[124] C.B. is currently 5 1/2 years old and was 5 years old when she reported to the clinical investigator that she misses her father and would like to see him "hundreds and thousands of days". Her wishes are a consideration for the court but the weight to be given to those wishes will be driven by her age and maturity. C.B. also told the clinical investigator that she likes spending lots of time with both of her parents and that she wanted to be with her father every day because she missed him. The clinical investigator wrote that C.B. "added that she missed her mother so much and she missed her father and she wanted to spend time with her father all the time."

[125] Just prior to the referral to the OCL, C.B. had been seeing her father frequently if not daily. This might explain why she told the clinical investigator she missed her father as around the time of the investigation she was no longer seeing him daily and this upset her. The clinical investigator did not consider this or any other possible explanation for C.B.'s comments.

[126] While the clinical investigator attributed significant weight to C.B.'s wishes, she provided no discernable analysis of whether C.B.'s desire to spend more time with her father is aligned with her best interests. She simply concluded that C.B. should be in her father's care when her mother is working rather than in her grandmother's care.

[127] A child's views and preferences are not determinative of where they live and when they visit the other parent. The views of a 5 year old, should be given some consideration but those views do not trump all other considerations. In Decaen v. Decaen, 2013 ONCA 218, the Ontario Court of Appeal enumerated important factors to consider when assessing the significance of a child's wishes. They are, (i) whether both parents are able to provide adequate care; (ii) how clear and unambivalent the wishes are; (iii) how informed the expression is; (iv) the age of the child; (v) the maturity level; (vi) the strength of the wish; (vii) the length of time the preference has been expressed for; (viii) practicalities; (ix) the influence of the parent(s) on the expressed wish or preference; (x) the overall context; and (xi) the circumstances of the preferences from the child's point of view.

[128] Based on C.B.'s age and the way in which she expresses herself, a significant amount of weight cannot be placed on her expressed wish to see her father "hundreds and thousands of days". This in of itself cannot be the basis for an order for shared parenting. It is but one factor for the court to consider.

[129] It is apparent from the clinical investigator's evidence that considering C.B.'s age, she assigned a disproportionate amount of weight to C.B.'s wishes and discounted the importance of other facts uncovered in her investigation when formulating her recommendations. In addition, she failed to consider or discuss whether C.B.'s stated wishes are contrary to or consistent with her best interests.

(c) The Recommendation that Both Parents Engage in Counselling

[130] The clinical investigator recommends both parents engage in counseling to learn strategies to protect C.B. from the conflict but she does not conclude in her report that the mother in any way subjected C.B. to the conflict or in other words, failed to protect her from the conflict whereas she very clearly concluded that in several ways the father not only failed to protect C.B. from the conflict, but directly involved her in it. When she was directly asked this question while giving evidence, she could not provide any examples of how the mother has failed to shield C.B. from the conflict such that she requires counselling.

Conclusions Regarding the Weight to Give to the Recommendations of the Office of the Children's Lawyer

[131] For the reasons set out above, the court finds that the recommendations of the OCL are not supported by the facts as set out in her report or her evidence at trial. As a result, the court has given very little weight to the recommendations made by the OCL.

Conclusion Regarding Father's Access to C.B.

[132] Both parents are able to provide C.B. with love and affection and the necessaries of life. Both parties are wishing to be involved in her education and visible at her school.

[133] C.B. has lived with her mother since birth. Her mother has always provided a stable home for her and she arranged for her step mother to live with her to care for C.B. when she is working. C.B.'s (step) grandmother has played this role in her life since she was 1 year old.

[134] Since the mother moved out of the building that the father lives in, C.B. has had regular contact with her father. She shares a close and loving relationship with her father, which is no doubt a testament to the time he has spent with her. The evidence is that she is doing well and has adapted to the parenting schedule that has been in place effectively since January 2018. There are no issues with C.B.'s performance, behaviour or attendance at school.

[135] The father has interpreted the mother's unwillingness to share parenting of C.B. as a rejection of him and an attempt to "limit" his role in her life. This is not a reasonable interpretation of the facts of this case.

[136] The mother's family unit is stable. She owns her home and her step mother has a 10 year visa to visit Canada and gave evidence that she will be available to assist the mother in caring for C.B. for 10 year as her visa permits.

[137] The mother's plan makes the most sense for C.B. She will continue to have her primary residence with her mother and grandmother and will enjoy regular overnight visits with her father.

[138] The court's order setting out when C.B. will be in each parent's care is based on the following findings:

(a) The mother has been C.B.'s primary caregiver since birth;

(b) The father has never been an equal caregiver or co-parent to C.B.;

(c) The parties love C.B. very much and she is extremely happy and comfortable in either's care;

(d) C.B. also shares a loving bond with her mother's step mother;

(e) The father has been extremely verbally and emotionally abusive towards the mother;

(f) The father has made comments to C.B. about her mother which were designed to display the mother in a negative light;

(g) The father has involved C.B. inappropriately in the parents' conflict;

(h) The father has demonstrated very concerning behaviour and judgment that directly effects C.B.;

(i) The father does not possess the parenting skills required to share parenting of C.B.; and,

(j) The father's aggressive and vindictive nature puts C.B. at risk of emotional harm. An increase in his parenting time would naturally increase the risk.

[139] The court seriously considered whether extended visits with her father are in C.B.'s best interests or if day visits would be more appropriate in all of the circumstances of this case. The court considered the love and affection C.B. shares with her father and the mother's position that a final order should include regular overnight access when deciding not to restrict the father's access to day visits only. If the father does not address the issues raised in this decision about his parenting and judgment and his behaviour is having a more noticeable impact on C.B. as she gets older, the mother is urged to bring this matter back to court.

IX. Orders Regarding Access

[140] There will be an order to go fixing the father's access to C.B. as follows:

(a) Week #1 – Monday from after school until 7 p.m., pick up from school and drop off at mother's home; Wednesday from after school until Thursday return to school with pick up and drop off at school; and, Friday from after school until Sunday at 7:00 p.m., pick up from school and drop off at mother's home.

(b) Week #2 – Wednesday from after school until Thursday return to school with pick up and drop off at school.

(c) Only the father shall be permitted to pick C.B. up from school unless the mother approves of a third party proposed by the father. If there is no agreement, the father shall pick C.B. up from the mother's home.

(d) The parties shall keep each other advised at all times of their current address and contact information.

(e) The parties shall keep each other advised at all times of the full names of anyone living with them either temporarily or permanently.

(f) The parties shall not denigrate the other near or in C.B.'s presence or allow anyone else to do so.

(g) Unless the parties agree otherwise, they shall communicate in writing about any issues affecting C.B. unless an emergency requires face to face or telephone contact.

(h) When the parties have face to face contact at exchanges in front of C.B., they shall at all times remain cordial and not engage in any adult discussions or conflict in front of C.B.

(i) Neither party shall discuss the court proceedings with C.B. or show her any of the court documents.

(j) The following holiday schedule shall override the regular week to week access schedule:

Christmas

The winter school break shall alternate on even and odd years, one week with the mother and one week with the Father. The start time shall be at 3:00 p.m. on the last day of school and shall end at 9:00 a.m. on the first day that school resumes. The first half of the winter break will start after school on C.B.'s last day of school in December and end at noon on the date that is the half-way point of the winter break. The second half will start at noon on the date that is the half-way point of the winger break and end on the morning C.B. returns to school in January.

The mother shall have the first half of the Christmas school break in odd numbered years and the second half in even numbered years. The father shall have the first half of the break in even numbered years and the second half of the break in odd numbered years.

C.B. shall spend Christmas Eve at 12:00 p.m. until Christmas Day at 12:00 p.m. with the mother, and Christmas Day at 12:01 p.m. until Boxing Day at 12:00 p.m. with the father, in even-numbered years. C.B. shall spend Christmas Eve at 12:00 p.m. until Christmas Day at 12:00 p.m. with the father, and Christmas Day at 12:01 p.m. until Boxing Day at 12:00 p.m. with the mother, in odd-numbered years.

C.B. shall spend New Years' Eve at 12:00 p.m. until New Years' Day at 12:00 p.m. with the mother, and from New Years' Day at 12:01 p.m. until January 2nd at 12:00 p.m. with the father, in even-numbered years. C.B. shall spend New Years' Eve at 12:00 p.m. until New Years' Day at 12:00 p.m. with the father, and from New Years' Day at 12:01 p.m. until January 2nd at 12:00 p.m. with the mother, in odd-numbered years.

Unless otherwise agreed upon, the party who has C.B. in their care on the Sunday of the Toronto Santa Claus parade shall be permitted to take her to the parade.

March Break

If neither party has planned a vacation which involves travel, the March Break school vacation shall be divided equally, with 2.5 days each to the Mother and Father, with exchanges to take place on Wednesday at noon. The start time shall be at 3:00 p.m. on the last day of school and shall end at 9:00 a.m. on the first day that school resumes. In even numbered years, the father will have C.B. from 3:00 p.m. on the last day of school until Wednesday at 12 noon and the mother will have C.B. from Wednesday at 12 noon until Monday at 9:00 a.m. when school resumes, with the order reversed in odd numbered years. If one party wants to travel during March Break they shall have C.B. in their care for the entire March Break vacation and C.B. will spend the entire March Break with the non-travelling party the following year.

Halloween

C.B. shall spend Halloween with the mother in even years and with father in odd years with pick up from school and return to school the next morning if a school night or the mother's home if not a school night.

Easter

C.B. shall spend Friday to Saturday with the Mother and Sunday to Monday with the father in even numbered years, reversing in odd years. The exchange shall take place at 6 p.m. on Saturday. The long weekend will start after school with pick up from school on Thursday and, in years when C.B. spends the second half of the weekend with the father, shall end with return to school on the Monday morning provided the father can personally take C.B. to school. If not, he shall return C.B. to her mother's home on Monday evening at 7:00 p.m.

Mother's/Father's Day

Mother's Day and Father's Day will be spent with the relevant parent from 9am Sunday to Monday morning return to school if not already with that parent pursuant to the week to week parenting schedule.

Summer Vacation

Every year C.B. will spend 1 week (7 nights) in each of July and August with the mother and 1 week (7 nights) in each of July and August with the father. These weeks shall not be consecutive unless the parties agree. The regular parenting schedule will be in effect the balance of the school summer vacation except the father's alternate Monday evening visit will be extended from Monday at 3:00 p.m. to Tuesday morning with pick up and return to the mother's home by 9:00 a.m. unless the parties agree otherwise. The parties may agree in the future that each parent has C.B. in their care for 3 weeks during the summer, consecutive or not. If the parties cannot agree on the uninterrupted weeks they each have C.B. in their care, the mother shall have first choice of her weeks in odd numbered years and the father in even numbered years. They shall agree on their respective weeks by April 1st of each year.

Statutory Holidays

C.B. shall spend the statutory holidays of Family Day, Victoria Day and Thanksgiving Day with the parent who has care of her for the preceding weekend. When C.B. is in her father's care on Family Day, Victoria Day or Thanksgiving Day, he shall return C.B. to the mother's home by 7:00 p.m.

If the father has C.B. in his care for the weekend immediately preceding Labour Day pursuant to the regular or summer schedules, he shall return C.B. to the mother's home on Labour Day by 6 p.m. unless otherwise agreed by the parties.

X. Child Support

Retroactive Child Support

The Mother's Position

[141] The mother seeks an order for child support retroactive to May 2014 when she requested financial contribution by the father towards C.B.'s care in an email. It is her position that this is effective notice of her request for child support which triggers a retroactive award.

[142] She acknowledges that the father has paid some support and he should receive credit for amounts paid by him to date. Between May 2014 and December 2017, the mother's evidence is that the father paid a total of $12,950.00 in child support.

[143] The father began paying temporary child support pursuant to the table amount and the Child Support Guidelines as of January 2018.

The Father's Position

[144] The father opposes an order for retroactive child support. He says that he has always contributed financially to C.B.'s support and thought he was doing so in an appropriate amount based on his belief that they were sharing care of C.B. The father's evidence is that if the mother needed something for C.B. all she had to do was ask him. As she did not ask, he assumed she was satisfied with the amount he was contributing.

[145] The father did not have a lawyer before litigation was commenced and was not aware that he was not paying child support in accordance with the Child Support Guidelines. As soon as he realized he was obliged to pay more than the $400.00 he was paying per month he paid the increased amount.

[146] The father's evidence is that between May 2014 and December 2017 he paid the mother a total of $13,120.00 in child support.

[147] The father's position is that as he did not deceive the mother about his income and provided her with regular child support which she did not advise him was insufficient or unsatisfactory, he should not be found to have engaged in blameworthy conduct and therefore not be required to pay retroactive child support.

[148] The father's position is that if a retroactive child support order is granted, it should only be retroactive to November 2014, 3 years prior to the date of the mother's Application.

XI. The Law

[149] The Supreme Court in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 outlined the factors that a court should consider when dealing with retroactive applications. Briefly, there are four points that the court raised:

1. Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.

2. The conduct of the payor parent.

3. The circumstances of the child.

4. The hardship that the retroactive award may entail.

[150] None of the above factors are decisive or take priority and all should be considered in a global analysis. In determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor's interest in certainty must be balanced with the need for fairness and flexibility.

[151] Retroactive awards are not exceptional. They can always be avoided by proper payment. (D.B.S. para. 7).

[152] Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility (D.B.S., para. 5).

[153] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair (D.B.S., para. 121).

[154] Once the issue is raised, the recipient must still be responsible in moving the discussion forward. If he or she does not, legal action should be contemplated. A prolonged period of inactivity after effective notice may indicate that the payor's reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. (D.B.S., para. 123).

[155] It will not always be appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with the purposes behind the child support regime; this will be so where the child would get no discernible benefit from the award. Retroactive awards may also cause hardship to a payor parent in ways that a prospective award would not. In short, while a free-standing obligation to support one's children must be recognized, it will not always be appropriate for a court to enforce this obligation once the relevant time period has passed. (D.B.S., para. 95).

[156] A reasonably held belief that the payor is meeting their obligations is a good indicator that there is no blameworthy conduct. (D.B.S., para. 108).

[157] Courts ordering a retroactive award must still ensure that the quantum of the award fits the circumstances. Blind adherence to the amounts set out in the applicable guideline tables is not required — nor is it recommended. There are two ways that the federal regime allows courts to affect the quantum of retroactive awards (D.B.S., para. 128). The first involves exercising the discretion that the guidelines allow. Courts may exercise their discretion with respect to quantum in a variety of other circumstances under the guidelines. See: ss. 3(2), 7, 9 and 10 of the guidelines (D.B.S., para. 129). The second is by altering the time period that the retroactive award captures. While the date of effective notice should be chosen as a general rule, this will not always yield a fair result. For instance, where a court finds that there has been an unreasonable delay after effective notice was given, it may be appropriate to exclude this period of unreasonable delay from the calculation of the award. Unless the statutory scheme clearly directs another outcome, a court should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case (D.B.S., para. 130).

XII. Review and Analysis of the Parties' Evidence

[158] On May 15, 2014, the mother emailed the father and requested that he take two months of paternity leave so she can return to work early as her debts were mounting. The mother cites this date as effective notice to the father that she expected him to provide her with support for C.B.

[159] The father's response to the email was that he could not take the time off work but he can assist the mother in other ways such as paying for groceries and formula for Cassie. He repeatedly told the mother he will assist her by paying for all of C.B.'s needs but the mother never asked him for money.

[160] The court was provided with additional emails exchanged between the parties on May 19, 2014. In a lengthy email the mother tells the father that she requires more than contribution towards groceries from the father and that while on maternity leave she has incurred significant debt including debts to friends. The father's response was that he has told her many times that if she needs financial assistance to simply ask him or that he would come shopping with her and pay for items for C.B.

[161] In 2015 the father began giving the mother approximately $400.00 per month towards C.B.'s support although he did not make the payment every month.

[162] The mother's evidence is that once the father began giving her $400.00 per month she told him many times that he was underpaying child support but his response was that he would pay child support at his discretion. The father's evidence is that the mother did not ask him for more then what he was paying.

[163] The mother gave evidence that she did not come to court earlier to request child support because the parties were getting along. She said that the parties did not begin arguing until 2016 when the father would come and take C.B. from her home whenever he wanted.

[164] The father was not aware of the Child Support Guidelines and the applicable tables setting out parents' child support obligations prior to the commencement of litigation.

The D.B.S. Factors

1. Has the Mother Provided a Reasonable Explanation for Her Delay in Applying for Child Support?

[165] Approximately 6 months after the mother requested support from the father in May 2014, he began giving her approximately $400.00 per month towards C.B.'s support. The mother did not provide any evidence of further requests she made to the father to increase his child support payments to her after May 2014.

[166] The mother's evidence is that she did not come to court earlier as the parties were getting along and the conflict only began in 2016. She provided no other explanation for the delay in applying for child support between May 2014 when she broached the issue of child support with the father and October 2017 when she issued her Application in this court.

[167] The mother had a positive obligation to move the discussion with the father forward after first raising the issue of child support with him in May 2014. She did not do so and instead waited over three years to apply to the court for child support after raising the issue with the father because the parties were getting along.

[168] The mother's delay in coming to court created a false sense of security for the father that the arrangements he had with the mother with respect to C.B.'s support were sufficient. In other words, he had good reason to believe that the mother was satisfied with what the parents had agreed to or at least had in place for several years.

[169] The mother has not provided a reasonable explanation for her delay in applying for child support.

2. The Conduct of the Father

[170] The father's evidence is that once he learned the mother was giving her step mother $800.00 per month to care for C.B., he began giving her $400.00 even though they were co-parenting and he "thought I did not have to pay but I wanted to pay anyway" as "I thought it was the right thing to do." When asked about other expenses for C.B., like food, clothing etc., the father said he offered to pay for everything for C.B. but the mother insisted on receiving a fixed amount from him which he could not comprehend given their shared parenting arrangement.

[171] His evidence is that he believed that he was paying an appropriate amount of support given the co-parenting arrangement in place until January 2018. The mother's actions after her initial request for support in 2016 did not suggest otherwise.

[172] His evidence is that he has also purchased many things for C.B. and told the mother repeatedly that he is more than happy to go shopping with her or pay for anything and everything she needs for C.B. but the mother never asked.

[173] The issue for the court when assessing the father's conduct is whether his belief that he was paying an appropriate amount of child support was reasonable. While the father may not have engaged in premeditated blameworthy conduct, the court finds that it was not reasonable for him to believe that he was co-parenting C.B. or an equal caregiver to her and therefore, it was unreasonable for him to believe that he was providing the mother with an appropriate level of child support. Considering that the father did not even have a toothbrush or children's Tylenol in his home for C.B. in 2016, his belief that he was an equal caregiver was misguided at best. Therefore, the logic upon which he determined that $400.00 per month in support for C.B. was reasonable is faulty.

[174] It is also unreasonable for the father to believe it was appropriate to expect the mother to ask him to purchase items for C.B. or accompany her on shopping trips to pay for groceries, clothing etc. It should have been obvious to the father that he ought to have contributed a lump sum towards the monthly cost of basic living expenses for C.B. without the mother having to ask him for money.

[175] The court must consider the degree to which the father was underpaying child support and for how long. In 2015 the father's line 150 income was $88,207.00. The table amount of child support pursuant to the Child Support Guidelines was $787.00. In 2016 the father's line 150 income was $92,390.00. The table amount of child support pursuant to the Child Support Guidelines was $820.00. In 2017 father's line 150 income was $102,902.00. The table amount of child support pursuant to the Child Support Guidelines was $902.00 until November 2017 and $933.00 as of December 2017. The difference between what the father was paying and what he ought to have paid is significant.

[176] The Child Support Guidelines require a non-custodial parent to provide the other parent with table support and contribution towards the cost of child care incurred to allow the custodial parent to work. The mother has been financially supporting her step mother in her home so she can provide care for C.B. when the mother is working. As noted above, this arrangement has been in place since C.B. was one year old.

[177] As the father has an obligation to contribute towards the cost of child care for C.B., arguably, he should be paying some amount to the mother towards the cost of supporting her step mother who cares for C.B. while she is working. Therefore, the father was in fact grossly under paying the mother child support.

[178] The mother is not seeking a retroactive or prospective contribution towards the costs she incurs for childcare for C.B. which continues to be provided by her step mother who lives with her.

[179] The court finds that at some point prior to January 2018, the father should have made enquiries about the amount of child support he should be paying to the mother and increased the amount. He also did not increase the amount he was contributing when his income increased. As a result, the father was paying 50% or less (not including a contribution towards child care costs) of what he should have been paying pursuant to the Child Support Guidelines until January 2018. While he may not have mislead the mother about his income and believed that he was paying an appropriate amount of child support this does not entirely exonerate him as this was not a reasonably held belief based on the facts of this case.

3. The Circumstances of the Child

[180] Both parents earn a significant income and provide C.B. with a very comfortable standard of living.

[181] The mother is a nurse and earns approximately $95,000.00 per year in employment income. As she owns a rental property she also earns rental income.

[182] The mother provided a sworn financial statement in which she disclosed $110,000.00 of personal debt in addition to credit card debt of $3800.00. She owns two properties worth approximately $1,000,000.00 with $457,000.00 in mortgage and line of credit debts.

[183] The father did not question any of the entries on the mother's sworn financial statement.

[184] C.B. is 5 ½ years old and will benefit from a retroactive child support order.

4. Would a Retroactive Award Cause Hardship to the Father?

[185] The father argues that a retroactive child support order would cause him hardship as he lives a modest life and his money has been utilized to acquire property, which are expensive to maintain.

[186] The father earned employment income of $99,224.00 in 2018 and according to his paystub for March 7, 2019, will earn approximately $90,818.00 in employment income in 2019. In addition, he earns rental income from two properties albeit most of the income is utilized to pay the carrying costs associated with the properties.

[187] The father provided the court with a financial statement sworn on March 8, 2019, which discloses three properties he values at approximately $975,000.00. He has mortgage and line of credit debt totalling $584,371.00 and credit card debt of $24,600.00. He has savings and savings plans with a gross value of $144,300.00 and cash from the sale of an investment property of $169,000.00.

[188] The father's sworn financial statement discloses current monthly income from all sources of $7304.29 and monthly expenses (including child support) of $11,212.00. He expects to begin receiving rental income shortly from his two income properties in the approximate amount of $3500.00 per month. The father's monthly income is sufficient to meet his expenses.

[189] The mother did not question any of the entries on the father's sworn financial statement.

[190] Given that the father has almost $4000.00 in various bank accounts, $6654.00 in a Tax Free Savings Account and $169,000.00 in cash from the sale of 30-503 Gloucester Street, a retroactive award would not cause the father hardship.

Conclusion

[191] A thorough application of the facts to the D.B.S. factors and a balancing of the factors supports the court's exercise of its discretion to make a retroactive child support order two years prior to the date of the Application. This is a fair exercise of discretion in all of the circumstances of this case.

Prospective Child Support

[192] The father's financial statement sworn March 8, 2019, discloses current employment income of $87,651.48 per year. In 2018 he worked a temporary contract for which he was paid a higher hourly rate then his permanent position. Unfortunately, when he returned to his permanent position he continued to receive the higher wage which he now has to pay back at the rate of $276.88 per month.

[193] The father has two rental properties for which he says he received $1625.00 per month and $1800.00 per month up to and including February 2019. His sworn financial statement states that as of March 1, 2019 he does not have any rental income.

[194] In his evidence he said he believed that he would be renting both the units shortly; one for $2000.00 and he was not clear on what he expected to receive for the second.

[195] The father's Income Tax Returns for the last three years disclose gross rental income as follows:

• 2016 - $6702.00
• 2017 - $2335.00
• 2018 - $2728.00

[196] The father has always earned rental income. The most reliable information available to the court is for the year 2018. The father earned $99,224.51 in employment income and $2728.00 in rental income. His 2018 Income Tax Return discloses total income of $101,953.00.

[197] The father's evidence is that he will only earn $87,000.00 in 2019 due to the repayment of monies owed to his employer for 2018. He is unsure as to what he will earn in net rental income.

[198] In all of the circumstances, it would be appropriate for the father to pay child support up to December 2018 based on his actual income.

[199] Determining the father's income for 2019 is not as straight forward as he claims. The father attached a paystub for the period of February 17, 2019 to March 2, 2019 to his sworn financial statement which discloses an hourly rate of $49.90 and base hours of work every two weeks of 70. The paycheque also discloses total gross income in the year to date column of $18,101.23 and a total of $365.37 in overpayment recovery. That results in total gross earnings up to March 2, 2019 of $17,735.86. That translates into weekly gross income of $1970.65 ($17,735.86 divided by 9 weeks of work) or $102,473.00 annually.

[200] The court cannot determine from the evidence what the father's income will be in 2019. His paystub does not support his evidence that he will earn $87,000.00 in employment income in 2019 after repaying the monies accidentally paid to him in 2018. Therefore, the father will pay child support in 2019 based on his 2018 income tax return and the parties can review the child support payable by the father in 2020 based on his 2019 income tax return.

XIII. Orders for Child Support

[201] There will be an order to go fixing the father's child support obligation as follows:

(a) Commencing November 1, 2015, the father shall pay the mother child support for C.B. in the amount of $787.00 per month up to and including December 1, 2015, based on his annual income of $88,207.00 and the Child Support Guidelines.

(b) Commencing January 1, 2016, the father shall pay the mother child support for C.B. in the amount of $820.00 per month up to and including December 1, 2016, based on his annual income of $92,390.00 and the Child Support Guidelines.

(c) Commencing January 1, 2017, the father shall pay the mother child support for C.B. in the amount of $902.00 per month up to and including November 1, 2016, and $933.00 for December 1, 2017, based on his annual income of $102,902.00 and the Child Support Guidelines.

(d) Commencing January 1, 2018, the father shall pay the mother child support for C.B. in the amount of $925.00 per month and on the first of each month thereafter based on his 2018 annual income of $101,953.00 and the Child Support Guidelines.

(e) The father shall provide the mother with his income tax return and notice of assessment each year by June 1st and they shall cooperate to adjust the child support if required on a go forward basis.

(f) The father shall receive credit of $8745.00 towards the arrears of child support for the amounts he paid directly to the mother for the period of November 2015 to December 2017.

(g) The father shall receive credit towards this order for the child support paid by him through the Family Responsibility Office since January 1, 2018.

XIV. Other Orders

[202] If either party seeks an order for costs, they shall serve their cost submissions on opposing counsel within 20 days from the date of this decision. Their cost submissions shall be no more than 5 pages not including attachments and a Bill of Costs. The party responding to the request for costs shall serve their responding cost submissions within 20 days of receipt of the request for costs. The responding cost submissions shall be no more than 4 pages not including attachments.

[203] Cost submissions shall be delivered to the Trial Coordinator's Office.

Released: April 29, 2019

Signed: Justice Melanie Sager

Footnotes

[1] The father did complete several parenting courses and attended co-parenting sessions with the mother at Families in Transition.

[2] J.F. and her family reside in Nova Scotia.

[3] In fact, the very first time the father's sister visited Toronto with her two children after C.B. was born, she was surprised to learn that the father had arranged for them to stay with the mother and not him.

[4] This is another example of the way in which the father involves C.B. in the parents' conflict.

[5] The father did not deny that this conversation took place prior to the sister's arrival in Toronto.

[6] Van Bilsen v. Van Bilsen, [2003] O.J. No. 4657, paragraph 16; Ganie v. Ganie, 2015 ONSC 6330, paragraph 22.

[7] Woodhouse v. Woodhouse, 29 O.R. (3d) 417 (C.A.), at p. 435.

[8] The clinical investigator made no such findings about the mother.

[9] The court chose the mid-week overnight visit to be Wednesday to Thursday in order to reduce the number of days between C.B.'s visits with her father. The parties can of course agree to a different day for this visit and/or the alternate Monday evening visit.

[10] The father's evidence is that he paid $400.00 per month but in fact what he paid averages out to $300.83 to $367.50 per month since 2015.

[11] The mother did not give evidence that she was providing her mother with $800.00 a month but rather she was supporting her while she lived in her home and cared for C.B. when she was not available. The mother's sworn financial statement indicates that she gives her step mother $222.00 per month for personal expenses in addition to paying for her living expenses.

[12] As the mother works 7:30 p.m. to 7:30 a.m., she requires care for C.B. overnight.

[13] The court calculates that the father gave the mother an average of $367.50 per month in 2015 for a total of $735.00 for November and December 2015; $3610.00 in 2016 and $4400.00 in 2017 for a total of $8745.00.