DATE : June 1, 2021 COURT FILE NO. D41138/21

Ontario Court of Justice

B E T W E E N:

W.H.C.

KAREN BALLANTYNE, for the APPLICANT

APPLICANT

- and -

W.C.M.C.

GLENDA PERRY, for the RESPONDENT

RESPONDENT

HEARD: MAY 26, 2021

JUSTICE S.B. SHERR

Endorsement

Part One – Introduction

[1] The parties have both brought motions for temporary parenting orders regarding their two-year-old son (the child).

[2] The applicant (the father) seeks temporary unsupervised parenting time with the child, starting with frequent day parenting time and quickly moving to equal-parenting time.

[3] The respondent (the mother) seeks temporary parenting orders for sole decision-making responsibility for the child and for parenting time for the father to be supervised by a professional parenting time supervisor, at his expense. She seeks an order that the father deliver the child’s government documentation to her. She also seeks an order, pursuant to section 28 of the Children’s Law Reform Act (the Act), that the father not communicate with her or contact her.

[4] The mother seeks an order for temporary child support for the child.

[5] The mother has also made claims against the father regarding her five-year-old daughter (K.). The mother claims that the father formed a settled intention to act as a parent for K. and seeks an order for temporary child support from him. The mother also seeks final orders for decision-making responsibility for K., the ability to travel outside of Canada with K. and the right to obtain government documentation for K. without the father’s consent. She also seeks an order that the father deliver K.’s government documentation to her within 5 business days.

[6] The father denies that he ever formed a settled intention to act as a parent to K. and submits that the mother is not entitled to child support from him for K. The father has chosen not to seek parenting time with K. and does not oppose the parenting orders sought by the mother regarding her.

[7] At the outset of the motions, the court advised the parties that K.’s biological father was a necessary party pursuant to clause 62 (3) (a) of the Act and it would not make the final orders requested by the mother. [1] It was agreed that the mother would amend her Answer/Claim to name K.’s biological father as a party. The court indicated that it would make temporary orders granting the mother decision-making responsibility for K., as K.’s biological father lives in Guatemala and has never had any involvement with her.

[8] The mother has made very serious allegations against the father. She claims that he is addicted to child pornography. She also claims that she was the victim of family violence by the father.

[9] The issues on these motions are:

a) What parenting orders are in the child’s best interests?

b) Should the court grant the temporary communication and contact orders sought by the mother?

c) Is the mother entitled to temporary child support for K. from the father?

d) What temporary child support orders should be made?

Part Two – Background Facts

[10] The father is 48 years old. The mother is 23 years old.

[11] The parties were both born in Guatemala. The father has been a permanent resident of Canada since 1990. The mother became a permanent resident of Canada in February 2020.

[12] The parties began their relationship in 2015 when the father was 42 years old and the mother was 17 years old. The father lived in Ontario and had a long-distance relationship with the mother who lived in Guatemala. He frequently traveled to Guatemala to see the mother.

[13] The parties were married in Guatemala in February 2017.

[14] The father was previously married. He was divorced in 2016.

[15] The father has three daughters from a prior relationship, ages 20, 17 and 11. They visit with him frequently.

[16] The mother has one other child from another relationship – K. The mother deposed that she is not in contact with K’s biological father and that he has never seen or asked to see K.

[17] The parties had the one child together. The child was born in Guatemala and is a Canadian citizen.

[18] The father sponsored the mother, the child and K. to come to Canada. They arrived in Canada in February 2020 and lived with the father at the father’s apartment in Toronto.

[19] The parties separated on January 18, 2021. The mother left the family home with the child and K. and moved into a shelter with them. They continue to reside there.

[20] The father has not had in-person parenting time with the child since the parties separated, although he had virtual and telephone parenting time with the child until the middle of March 2021. At that point, the mother’s counsel asked the father not to communicate directly with the mother and this parenting time stopped.

[21] The father issued his application on January 28, 2021.

[22] The mother issued her Answer/Claim on March 10, 2021.

[23] At a case conference held on April 29, 2021, on consent, the court made a number of procedural and disclosure orders and ordered, also on consent, that the father would pay temporary child support for the child in the amount of $201 each month, starting on May 1, 2021. This was the Child Support Guidelines (the guidelines) table amount for one child, based on the father’s representation that he was earning $25,200 annually. It was agreed that this order was without prejudice, and subject to adjustment as to amount, the start date and the mother’s claim for child support for K. The court also set timelines for the hearing of these motions.

Part Three – Parenting

3.1 Summary of the Father’s Evidence

[24] The father deposed that prior to the parties’ separation, he was a very involved parent. He said that he was often at home due to the pandemic. He said that he played with the child, bathed him, fed him and changed his diapers.

[25] The father said that he has a deep and loving bond with the child.

[26] The father said that he did most of the cooking and laundry for the family. He said that he would put the child and K. to bed. He walked K. to school each day.

[27] The father deposed that his three daughters spent every other weekend with him, and loved the time that they spent with the child. The child, he said, is loved by the extended paternal family.

[28] The father attested that he has been a very involved father with his three daughters.

[29] The father’s 20-year-old daughter (D.C.) deposed that the father is an excellent and involved father to her and her sisters. She said that he is “always there for them and always very supportive”. She observed that the father often cared for the child. She said that he was always playing with the child and they laughed a lot together. She said that he usually bathed the child and tucked him into bed. She expressed how much she and her sisters miss the child.

[30] The father denied the mother’s claim that he views child pornography. He admitted that he watched adult pornography and stated that the mother had joined him in viewing this. The mother stated that she only watched one time at the father’s insistence.

[31] The father also denied the mother’s allegations of family violence. He described an incident that took place in March 2020 where he said that the mother assaulted him. The mother denied this.

[32] D.C. deposed that the father has never mistreated her or her sisters or acted in a sexually inappropriate manner with them. She said that she was shocked by these allegations and does not believe that the father views child pornography. She does not believe that he poses any risk to the child.

[33] The father believes that the mother is making these false allegations to obtain an advantage in the litigation. He also believes that coming to Canada has been a disappointment to the mother and that she would like to take the child and K. back to Guatemala. For this reason, he opposes delivering any of the child’s documentation to the mother.

[34] The father proposes a graduated parenting time schedule. For one month, he seeks parenting time with the child four days each week, from noon until 5 p.m. At the conclusion of one month, he proposes that parenting time take place as follows:

a) Week one: Mondays at 5 p.m. until Wednesdays at 5 p.m. with the father. Wednesdays at 5 p.m. until Fridays at 5 p.m. with the mother. Fridays at 5 p.m. until Mondays at 5 p.m. with the father.

b) Week two: Mondays at 5 p.m. until Wednesdays at 5 p.m. with the mother. Wednesdays at 5 p.m. until Fridays at 5 p.m. with the father. Fridays at 5 p.m. until Mondays at 5 p.m. with the mother.

[35] The father also seeks parenting time on Father’s Day.

[36] The father proposed that the parenting exchanges take place at a community location.

[37] The father asks that if the court finds that supervision of his parenting time is required, that it be supervised by one of his family members.

[38] The father submits that it would be prejudicial to him to make a temporary decision-making responsibility order in favour of the mother. He says that there are no major decisions to make regarding the child.

3.2 Summary of the Mother’s Evidence

[39] The mother deposed that she has always been the child’s primary caregiver and has been the parent who has taken care of his needs. She said that the father has exaggerated his and his family’s involvement with the child.

[40] The mother said that the father rarely cared for the child. She said that she did not let the father bathe the child after she saw him watching child pornography in March 2020. She said that the father occasionally helped with the cooking and making breakfast.

[41] The mother said that the father used to fall asleep on the couch a lot.

[42] The mother said that D.C. exaggerated her bond with the child. The mother said it was D.C.’s sisters who spent more time with them before the parties separated – that D.C. only came over to their apartment one or two times before the separation. She said that D.C. would have no idea what her relationship with the father was like or have any knowledge about his pornography addiction.

[43] The mother said that she is willing to arrange for the child’s sisters to see him once the lockdown restrictions relax.

[44] The mother deposed that on one day in March 2020 the father had left his computer on. She saw on the screen a folder of pornographic photographs of young girls, between the ages of 10 and 15, together with adult men. She said there were also videos of the men having sex with the young girls.

[45] The mother said that she was traumatized by this. She was alone in Canada and did not speak English. She felt isolated and scared. She initially did not report what she had seen to anyone.

[46] The mother deposed that in April 2020 the father became upset that she had viewed his phone. She said that he pushed her up against the wall, causing her to fall to the ground and injure her shoulder and arm. She said this happened in front of K. The father denied this and noted that this allegation was made for the first time in the mother’s motion affidavit.

[47] The mother said that she confronted the father about the child pornography in July 2020, when she walked in on him and saw him masturbating to pornography. She said that she subsequently observed the father on seven different occasions masturbating to pornography. She said that the father stopped defending himself – he told her that it was normal and that there was nothing wrong with masturbating to child pornography.

[48] The mother said that in August 2020 she discovered a video on the father’s phone of a woman sunbathing in her bikini in a park. In the video she could see the father and hear him speaking as he recorded the woman from a distance. The woman, she said, was unaware that she was being taped.

[49] The mother said that in August or September 2020 she looked through the father’s phone. [2] She said that his internet history showed that he was looking at child pornography sites. She said that the children in the pictures in these sites looked to be 10 years old and older. The mother said that she took screenshots of the photos and links to these sites. She attached some of them to her affidavit.

[50] The mother claimed that the father would frequently stare at teenage girls in skimpy clothing when they went out.

[51] The mother attested that the father repeatedly threatened to kick her out of the apartment. He would often get angry and call her names. She said that he would blame his sexual difficulties on her by demeaning her, calling her ugly, and telling her that if she was 17 years old everything would be different. She said that he threatened her that no one would believe her if she told anyone about his abuse and his viewing of child pornography. She said that he began to treat K. poorly too.

[52] The mother said that she became depressed and would frequently cry. She said, “every day I would look in the mirror and ask myself why I was so ugly, I felt like garbage”.

[53] The mother said that she eventually reached out to her family in Guatemala and obtained supports in Toronto who assisted her in moving to the shelter.

[54] The mother deposed that in November 2020 the father agreed to see a counselor. She said that the counselor did not speak Spanish – and she did not understand what was discussed. She said there was only one counseling session. She said that the father continued to view child pornography after the counseling session.

[55] The mother said that in November 2020 the father prepared and tried to pressure her into signing a domestic agreement that would give him equal-parenting time with the child. [3] She did not sign it.

[56] The mother said that she does not trust the paternal family to supervise the father’s parenting time because they do not accept that he views child pornography. She said that she is agreeable to a professional parenting time supervisor supervising the father’s parenting time for a few hours each week.

[57] The mother deposed that the rules of the shelter that she is living in do not permit children going for overnight visits. [4] The father pointed out that no proof of this policy was provided. However, the mother made it clear that she opposes overnight parenting time, notwithstanding any shelter policy.

3.3 Legal Considerations

[58] Any proceeding with respect to children is determined with respect to the best interests of the particular child before the court in accordance with the considerations set out in subsection s 24 (2) to (7) of the Act.

[59] A temporary motion is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be fully canvassed at subsequent conferences or resolved at a trial. See: Coe v. Tope, 2014 ONSC 4002; Costello and McLean, 2014 ONSC 7332; Munroe v. Graham, 2021 ONCJ 253.

[60] The status quo should be maintained until trial unless there is material evidence that the child’s best interests require an immediate change. [5]

[61] Subsection 24 (2) of the Act provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests.

[62] A starting point to assess a child’s best interests when making a parenting order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making a parenting order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615. Also see: J.N. v. A.S., 2020 ONSC 5292; A.L.M. v. V.L.S., 2020 ONCJ 502; M.R.-J. v. K.J., 2020 ONCJ 305; Abbas v. Downey, 2020 ONCJ 283; N.D. v. R.K., 2020 ONCJ 266.

[63] Subsection 24 (3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child. It reads as follows:

Factors

(3) Factors related to the circumstances of a child include,

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(k) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(l) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(m) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

[64] Subsection 24 (4) of the Act sets out a list of factors for the court to consider related to family violence. It reads as follows:

Factors relating to family violence

(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and

(h) any other relevant factor.

[65] Family violence has been given a comprehensive and useful definition in subsections 18 (1) and (2) of the Act. The definition of family violence in subsection 18 (1) of the Act reads as follows:

“family violence” means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct;

[66] Subsection 18 (2) of the Act reads as follows:

“Family violence”

(2) For the purposes of the definition of “family violence” in subsection (1), the conduct need not constitute a criminal offence, and includes,

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property.

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

33. 1 Protection of children from conflict

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

[68] The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.

[69] The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being. Moreover, the child has a right to have contact with both parents. See: Klymenko v. Klymenko, 2020 ONSC 5451.

[70] Subsection 24 (6) of the Act states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. This was recently interpreted by the Ontario Court of Appeal in Knapp v. Knapp, 2021 ONCA 305 as follows:

Maximum contact

[30] The appellant submits that the trial judge erred by placing an onus on her to establish that equal parenting was not in the children’s best interests. She relies on the trial judge’s reference to Folahan v. Folahan, 2013 ONSC 2966, [2013] W.D.F.L. 4357, where the trial judge said that the onus is on a parent to rebut the presumption of equal time. As this court said in Rigillo v. Rigillo, 2019 ONCA 647, 31 R.F.L. (8th) 361, at para. 13, the maximum contact principle does not necessarily require equal parenting time.

[31] The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) in force at the time of the trial addressed the maximum contact principle:

16(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[32] The current provision of Divorce Act, is more direct:

16(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

[33] The Children’s Law Reform Act, R.S.O. 1990, c. C.12, provided:

20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to custody of the child.

[34] The trial judge applied these principles and did not mistake maximum parenting time with equal time. Nor did she place an onus on the appellant to rebut equal parenting time. Her reasons, read as a whole, demonstrate that she was alive to the principle that a child-focused approach to achieving as much parenting time as possible with each parent is the objective of the maximum contact principle. It may end up being equal time. It may not. Each family is different, and the principle is a guide set out to benefit children.

[71] An equal-parenting time plan requires a high level of communication and coordination between the parties, particularly when the child is very young. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child. See: L.B. v. P.E., 2021 ONCJ 114; L.I.O. v. I.K.A., 2019 ONCJ 962.

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

[73] The person seeking supervised parenting time for the other parent bears the burden of establishing that supervision is necessary. See: Klymenko v. Klymenko, supra.

[74] Section 28 of the Act sets out the different types of parenting orders that a court can make. The court’s powers under the Act are broad and purposive. It can allocate parenting time and decision-making authority between the parents, impose a schedule, provide for the means of communication to be used by the parents, and make any other orders that it considers appropriate to secure the children’s best interests. See: S.S. v. R.S., 2021 ONSC 2137.

[75] The court has taken these factors into consideration, where relevant, in determining what parenting orders are in the child’s best interests.

3.4 Findings Regarding Child Pornography and Family Violence

[76] The challenge for a court in making temporary parenting decisions is that it often needs to make important determinations based on conflicting evidence, without the benefit of the evidence being tested. This means that temporary decisions are often imperfect and can change when the evidentiary record becomes clearer.

[77] With these limitations in mind, the court has significant concerns about the father.

[78] The evidence supports a temporary finding that the father frequently views child pornography and that he has an unhealthy sexual attraction to girls aged 10 to 17.

[79] The mother was very detailed in providing evidence about the father’s conduct – particularly his attraction to child pornography.

[80] The mother provided screenshots of child pornography sites that the father accessed. The father claims that the mother devised an elaborate plan to go onto his devices, access these sites, take screenshots and then send them to her family in order to strengthen her litigation position. Perhaps, but it seems very unlikely.

[81] The age difference of the parties does not necessarily mean that there is a power imbalance between them or that it is reflective of the father’s interest in young girls, but it is definitely a yellow flag for the court. The father was 42 years old and the mother only 17 years old when they started their relationship. The father’s trite explanation of the age difference – she pursued me – only increased the court’s concern about him.

[82] The father submitted that it made no sense that the mother did not report the child pornography until the fall of 2020 and often let him care for the child and K. alone, particularly since at one point K. saw a doctor for a vaginal infection. [6]

[83] The ultimate weight to be given to these arguments will be determined by the trial judge. However, the mother’s conduct needs to be examined in context. She is the very young mother of two children. She comes with them to Canada. She speaks no English. Her family is in Guatemala. She lives with the father and is isolated. She is fully dependent on him. Then, according to her evidence, she discovers the father viewing child pornography and he assaults her and verbally abuses her, making her feel worthless. She is ashamed and frightened to tell anyone. He threatens to kick her out of the home. Where would she go? What would happen to her children? So, she stayed silent for a while until she was able to reach out to her family and obtain the supports to leave the father. In this scenario, her delay in reporting his conduct is understandable.

[84] There appears to be a significant power imbalance between the parties that the father tried to take advantage of. The mother was isolated in Canada, did not speak English and was fully dependant on the father. The age difference is of concern in the context of this case. The father presented the mother with a separation agreement in November 2020 that would have given him equal parenting time with the child. He included the following clause in the agreement which is an indicator of a controlling personality, as it appears he was trying to control the mother from remarrying:

If mother or father decide to remarry, the child, if he still has no conscience to decide who to live with, he will be given to the single parent with whom to live until he decides on his own who he would like to live with.

[85] The court considered D.C.’s evidence. However, she has little knowledge of the father’s relationship with the mother or how he behaves when she is not present.

[86] Based on the preliminary findings that the father frequently views child pornography and that there is a power imbalance between the parties that the father has attempted to take advantage of, the court accepts, for the purpose of these temporary motions, the mother’s evidence about family violence.

[87] These findings inform the temporary decisions that the court will make.

3.5 Decision-Making Responsibility

[88] Only the mother made a claim for temporary decision-making responsibility for the child. The father asks that no order be made.

[89] The court finds that it is in the child’s best interests to make a temporary order giving the mother sole decision-making responsibility for the child.

[90] The mother has always been the child’s primary caregiver. Until February 2020, she exclusively cared for the child. The court accepts her evidence that she was the child’s primary caregiver when she lived with the father.

[91] The power imbalance between the parties, the family violence and the lack of trust between the parties dictates that there should be no allocation of decision-making responsibility – whether solely or jointly to the father. This would run too high a risk of exposing the mother and the child to family violence and escalated conflict.

[92] The court disagrees with the father’s assertion that there are no major decisions to be made respecting such a young child. It is difficult to predict when major decisions about children will have to be made – particularly health decisions. The mother’s ability to make these decisions, on a temporary basis, should be unfettered.

[93] The mother has had difficulty obtaining government benefits for the child since the parties separated. The Canada Child Benefit initially flowed to the father. This order will facilitate her obtaining the benefits that she sorely needs to support the child.

[94] The mother will be required to notify the father about any major decision she makes regarding the child.

[95] The mother should be the parent in possession of the government documentation for the child. The father’s refusal to provide these documents to the mother is further evidence of controlling behaviour.

[96] The father expressed a concern about the mother leaving with the child to Guatemala. The mother deposed that she intends to remain in Canada. Out of an abundance of caution, the court will make a temporary order that the mother cannot remove the child from Canada without the father’s written consent or prior court order. It is not in the child’s best interests to leave Canada while the issues in this case remain outstanding.

[97] It is also in the child’s best interests to structure a parenting order to minimize the parties’ contact with one another and to protect the child from adult conflict. Contact and communication orders will be made pursuant to the Act.

3.6 The Father’s Parenting Time

[98] The risk concerns support a determination that the father’s temporary parenting time be supervised.

[99] This leaves the court to determine who should supervise the visits, and the frequency and location of the visits.

[100] The court has considered the following:

a) The father was described by D.C. as a positive parent for his other three children.

b) There was little negative evidence about the father’s parenting skills.

c) The father was observed by D.C. to have a loving relationship with the child.

d) The father has expressed a desire to have a positive and meaningful relationship with the child.

e) The father has engaged with the court process to have parenting time with the child. He hasn’t used self-help.

f) The evidence at this point indicates that the father has an unhealthy attraction to girls age 10 to 17. At this point, there is no evidence that the father has a sexual attraction to boys the child’s age.

g) There is no evidence that the father ever acted in a sexually inappropriate manner with his three daughters or with the child or K.

h) There is no evidence that any of the father’s children have been exposed to child pornography.

i) Although the father’s actual income is in dispute, for the purpose of this motion the parties have agreed that the father’s income is modest. Private supervision of parenting time is expensive and limits the time that the father can spend with the child.

j) The child should have the benefit of spending time with his extended paternal family members – particularly his three half-siblings.

k) The mother indicated that she has had recent civil interactions with the father’s sister (C.C.).

[101] The court finds that the risk concerns can be adequately addressed with the following temporary orders:

a) The father will have day parenting time with the child twice each week.

b) The parenting time will be supervised by either C.C. or D.C.

c) The father is not to be left alone with the child.

d) The parenting time shall not take place in the father’s home.

e) The father is not to be present on parenting exchanges. The child will be exchanged by either C.C. or D.C.

f) The father shall not communicate directly with the mother. Any communication with the mother is to be through C.C. or D.C.

[102] The court will not approve the paternal grandmother as a parenting time supervisor at this time. The mother does not trust her. This is understandable. The mother presented her concerns about the father to her in November 2020 and showed her the pornographic pictures. The mother says that the paternal grandmother decided to align herself with the father and did not support her concerns. [7]

[103] The child has not had any parenting time with the father since January 2021. The temporary parenting time will take place in two stages to allow the child to adjust to spending time with the father and away from the mother. In the first stage, there will be one mid-week visit for two hours and a Saturday visit for three hours. There will be an additional two-hour visit on Father’s Day.

[104] In the second stage, which will take place after 9 visits, the Saturday visits will increase to 6 hours.

[105] The parties shall agree on the day and time that the mid-week visit takes place. If the parties cannot agree, it will take place on Wednesdays from 2 p.m. until 4 p.m. The person conducting the parenting exchanges shall provide the mother with 24 hours notice that she will be conducting the exchange.

[106] The court agrees with the father that the child should be exchanged at a public location. The mother shall choose that location and advise the father, through counsel, what this location will be by June 3, 2021.

Part Four – Child Support

[107] For the purpose of this motion, the parties agreed that the father’s annual income is $25,200. This will be subject to adjustment once the father provides the financial disclosure that has been ordered.

[108] The issue in dispute is whether the father has a temporary child support obligation for K.

[109] Subsection 31 (1) of the Family Law Act states that every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who is a minor, is enrolled in a full-time program of education, or is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.

[110] Subsection 1 (1) of the Family Law Act defines parent. “Parent” includes a person who has demonstrated a settled intention to treat a child as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody.

[111] There must be at least a prima facie case of entitlement shown at the interim stage in order for the court to make an order for child support. See: Maelbrancke v. Proctor, 2016 CarswellOnt 4890 (Ont. S.C.J.); Mignella v. Federico, 2012 ONSC 5696.

[112] In Chartier v. Chartier, (1999), 43 R.F.L. 4th 1 S.C.C. the court set out factors in determining if a person has demonstrated the required “settled intention” as follows:

1. The court must look at the intention of the parties. This includes their actions as well as their expressed intention.

2. Was a new family formed?

3. Does the child participate in the extended family like a biological child would?

4. Does the person contribute financially to the family (depending on ability to pay)?

5. Does the person discipline the child?

6. Does the person represent to the child, the family, the world, either explicitly or implicitly that he or she is responsible as a parent to the child?

7. The nature or existence of the child’s relationship with the absent biological parent.

[113] Where a new stepfather and a child are living together under the same roof, there is a natural inclination to at least try to get along with one another. The stepfather may want to demonstrate kindness, cordiality and financial support where it is not otherwise available from his new wife. None of that, however, equates with demonstrating a settled intention to treat the child as a parent. See: Segal v. Qu, [2001] O.J. No. 2646, (Ont. S.C.); Watts v. Watts, 2011 ONCJ 104.

[114] A sponsorship agreement is a relevant factor to be considered by the court in determining whether a person stands in the position of a parent: See: Karkulowski v. Karkulowski, 2015 ONSC 1057; LMA v. PH, 2014 ONSC 1707 at para 70; and Johnson v. Johnson, 2005 ONCJ 325 at paras 75-76. However, the sponsorship agreement is not necessarily determinative of the issue. See: Watts v. Watts, 2011 ONCJ 104; Charan v. Charan, 2018 BCSC 1537.

[115] The father stated that he has never acted as a parent for the child – that treating the child with kindness does not create a child support obligation.

[116] The court finds that the mother has established a prima facie case of entitlement of child support for K. at this stage based on the following:

a) K. does not know her biological father. She has always believed that the father is her biological father. She refers to him as Papi (daddy in Spanish).

b) The father sponsored the mother, the child and K. to come to Canada and undertook to support them. He referred to K. as his daughter, his child and his dependant in the sponsorship documents.

c) The parties, the child and K. acted as a family unit until the parties separated and represented themselves as a family unit to the outside world. K. was not treated differently than the child.

d) The father was solely responsible for financially supporting K.

[117] The court does not agree with the father that a determination of K.’s entitlement to support should wait until after a trial.

[118] The trial judge will ultimately determine K.’s entitlement to support. If the trial judge finds no support entitlement, any prejudice to the father arising from this order will be minor. The parties have been told that the court is aiming to have the trial of this matter completed before the end of 2021. The additional support that the father will pay for K., based on his income, is modest. The trial judge will have the option of crediting any overpayment against ongoing support or against any support ordered for an earlier start date.

[119] There is a greater prejudice to the mother and K. in not making a temporary support order. The mother is not working and is living in a shelter. She needs the child support for K. and should not have to wait for a trial determination of this issue when she has established a prima facie case.

[120] Section 5 of the guidelines states that where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to the guidelines and any other parent’s legal duty to support the child.

[121] K.’s biological father lives in Guatemala. He has never paid child support. He has never had a relationship with a K. On a temporary basis, it is unrealistic to expect the mother to collect any child support from him. At the temporary stage, the court will order the father to pay the full guidelines table amount for K. This is subject to adjustment at trial.

[122] The guidelines table amount for two children based on the father’s annual income of $25, 200 is $379 each month. It will be payable from May 1, 2021, which is the start date temporary support had been ordered for the child. This order will be subject to adjustment as to amount, start date and the ultimate entitlement of K. to support.

Part Five – Conclusion

[123] A temporary order shall go on the following terms and conditions:

a) The mother shall have sole decision-making responsibility for the child and K.

b) The mother shall inform the father of any major decision she makes regarding the child.

c) The father shall deliver to the mother within 7 days all government documentation he has in his possession concerning the child and K., including their birth certificates, medical and hospital records from Guatemala and the child’s citizenship documents.

d) The mother may apply for any passports, renewals of same and other government documentation for K., without anyone else’s consent.

e) The father shall have parenting time with the child as follows:

i) Starting on June 5, 2021, every Saturday from 1 p.m. to 4 p.m., together with one mid-week visit, starting the week of June 7, 2021, for two hours on a day and at a time to be agreed upon by the parties. If the parties cannot agree on the time and day, it will take place every Wednesday from 2 p.m. to 4 p.m.

ii) The father shall have a visit, in addition to his regular mid-week and Saturday visits, on Father’s Day 2021, from 1 p.m. to 4 p.m.

iii) After 9 total visits (inclusive of the Saturday, mid-week and Father’s Day visits), the Saturday visits will increase to 10 a.m. to 4 p.m. The mid-week visits shall remain the same.

iv) The parenting time will be supervised by either C.C. or D.C.

v) The father is not to be left alone with the child.

vi) The parenting time shall not take place in the father’s home.

vii) The father is not to be present on parenting exchanges. The child will be exchanged by either C.C. or D.C. They are to provide the mother with 24 hours notice of who will be exchanging the child.

viii) The mother shall choose the community location for the parenting exchanges and advise the father, through counsel, what this location will be by June 3, 2021.

ix) If the mother cancels a visit, it shall be made up the following week. If the father cancels a visit, it will not be made up. Visits should not be cancelled unless there is a medical issue.

x) There are no restrictions on the paternal family members who can be present during the father’s parenting time.

f) Pursuant to section 28 of the Act, the father shall not directly contact or communicate with the mother or come within 500 meters of her. Any communication regarding the child with the mother shall be through D.C., C.C., or counsel.

g) The mother shall not remove the child from Canada without the written consent of the father or prior court order.

h) The father shall pay temporary without prejudice child support to the mother for the child and K. in the amount of $379 each month, starting on May 1, 2021. This is based on the father’s annual income of $25,200. This order is subject to adjustment for amount, start date and the entitlement of K. to support.

[124] The mother is to amend her Answer/Claim within 30 days to name K.’s biological father as a party.

[125] If either party seeks costs, they shall serve and file written submissions by June 15, 2021. The other party will then have until June 29, 2021 to serve and file their written response (not to make their own costs request). The submissions shall not exceed 3 pages, not including any bill of costs or offer to settle. They are to be either delivered or emailed to the trial coordinator’s office.

[126] Due to the nature of the serious allegations that have been made against the father court staff are to send a copy of this decision to the Legal Department of the Children’s Aid Society of Toronto.

[127] The court thanks counsel for their excellent presentation of these motions.

Released: June 1, 2021 _____________________ Justice S.B. Sherr

[1] Clause 62 (3) (a) of the Act reads as follows:

Procedure, general

Joinder of proceedings

62

Parties

(3) The parties to an application under this Part in respect of a child shall include,

(a) the child’s parents;

[2] The mother deposed that she knew the father’s password for his electronic devices.

[3] The father denied pressuring the mother to sign the agreement.

[4] The mother deposed that this is a rule created to keep shelter residents and staff safe during the pandemic.

[5] See the cases set out in paragraph 59 and the cites therein.

[6] The mother deposed that K. had a urinary tract infection that was treated in March 2020.

[7] The father did not provide an affidavit from the paternal grandmother contradicting this evidence.