ONTARIO COURT OF JUSTICE DATE: 2021 07 22 COURT FILE No.: Sudbury D-47-12

BETWEEN:

DAVID D’ALOISIO Applicant

— AND —

TIFFANY BRAULT Respondent

Before Justice André L. Guay Heard on June 21, 2021 Reasons for Judgment released on July 22, 2021

Matti E. Mottonen............................... counsel for the applicant father, David D’Aloisio Tiffany Brault......................................................... respondent mother on her own behalf

GUAY J.:

Introduction

[1] The parties are the parents of Jonah Brault-D’Aloisio, born on […], 2011. The present litigation had its origin in 2012 before Jonah had reached his first birthday.

[2] On April 16, 2012, the father brought an application seeking what was then referred to as joint custody and access to the child. He complained that Jonah’s mother was restricting his access to Jonah. The father also brought an emergency motion to prevent the mother from leaving the jurisdiction and taking Jonah south or to the United States to live. An order was made to that effect, preventing either party from leaving the jurisdiction.

[3] A further motion was brought by the father in July 2012 regarding his access to Jonah. This resulted in an order in which the mother was given interim custody of Jonah. The father was awarded access twice weekly for periods of three hours. By December 2012, the father had managed to get regular, bi-weekly weekend access to Jonah as well as access one overnight per week.

[4] The continuing struggle over custody and access came to a head when on June 13, 2016 this court made a consent order whereby the parties were granted joint custody and shared parenting of Jonah. This order was not what had been recommended to the parties but was ordered because the parties agreed to make it work. It was the need for enforcement of this order which motivated the father to bring on two motions in April 2021. One called for the court to enforce the existing order made in 2016 while the other sought to have the mother found in contempt of court for not implementing the terms of that order.

[5] As the litigation progressed, the contempt motion gave way to the enforcement claim and was to all intents and purposes abandoned. This appeared to be the pattern whenever the father challenged the mother’s failure to abide by the terms of the 2016 order. The real issue this time around came to be whether the 2016 order would continue in effect or whether it would be varied to require that it be supervised. This matter then proceeded by way of motion to change, the parties appearing content to resolve the issue with the context of the father’s motion.

Children’s Law Reform Act (the “Act”)

[6] Subsection 24(1) of the recently amended Children’s Law Reform Act (R.S.O. 1990 c.C.-12 as amen.) states that in deciding matters of custody and access, the court “shall only take into account the best interests of the child”, with primary consideration (subsection 24(2)) being given to factors relating to the child’s “emotional and psychological safety, security and well-being”.

[7] Subsection 24(3) of the Act lists the factors which a court must consider in determining “best interests”. Subsection 24(3)(c), which directs the court to take into consideration “each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent” is particularly relevant in the present matter. So too is the criterion set out in subsection 24(3)(i) which directs the court to consider “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”. These new legislative criteria are important in that they focus on problems all too often central to many cases involving a child’s daily care. It is often difficult to obtain a clear assessment of a parent’s ability and willingness to support the other parent in their parenting relationship with the child and to communicate with each other in respect to matters affecting the child. What too often occurs is not only an attempt on the part of one parent to undermine the other parent’s parenting of a child but also an attempt to undermine the other parent’s very relationship with the child.

Incident of December 3, 2020

[8] As noted earlier, there had been a number of custody and access proceedings in this matter prior to the 2016 order. While the tension between the parties since then appeared to have abated, it actually continued to smolder until the December 3, 2020 incident at a local hockey rink. This incident propelled the parties’ caustic parenting relationship to a totally new level. It cast a new light on the existing custody and access regime, now one of decision-making and parenting time. If true, it has the potential to seriously affect the role of the father in the life of his son. If not, it places the continuing role of the mother in parenting her son in question. It does the latter in the sense that it could demonstrate, in a way few other events do, the attitude of the accusing parent, the mother in this case, and her refusal to comply with the parenting criteria listed in subsection 24(3) of the Act, in particular those noted above.

[9] While, except for the parties, we no longer have an eyewitness to the actual events in this matter, we do have the affidavit evidence of the late Joe Zito about what happened soon after the incident. Regrettably, this witness died from health complications arising from Covid-19 before this matter could be heard. While because of his untimely death this witness had not been cross-examined on his affidavit, I nevertheless found his sworn affidavit evidence about what transpired following the incident and the Christmas Day access he supervised both credible and reliable. It was based not only on his personal observations of what occurred, but also on statements allegedly made by the mother to him before she made her criminal allegations against the father. The mother sought to have this evidence struck from the record, notwithstanding that it was sworn and had been an unchallenged part of the court record since March 2, 2020, a year earlier.

[10] The mother offered little if any explanation why Joe Zito’s affidavit should be struck. I was unpersuaded by her attempt to discredit his evidence. What made Joe Zito unsuitable to act as a supervisor of Jonah’s parenting time with his father after the December 25, 2020 visit is unclear. If something had happened to change the mother’s mind about his suitability for that purpose, she offered no explanation about what that was.

[11] In assessing Joe Zito’s evidence, I gave no weight to his personal opinions about the events which occurred on December 3, 2021. I determined, however, that his statements about what he observed in the mother’s home and his recollection of what the mother told him after the father’s Christmas access had occurred probative.

[12] On the evening of the incident at the ice hockey arena, Joe Zito was called to the mother’s home. She related to him how, in response to Jonah’s acting out, the father had “dragged” Jonah into the dressing room’s shower area. She related how she had seen the father kick Jonah two times in the shower area of the dressing room. She recalled how she had initially heard a bang from that area where the father had taken Jonah aside. She said she had assumed he kicked Jonah when the first bang occurred. She indicated how, after she reached the shower area, she had heard two further bangs and simultaneously seen the father kicking Jonah two more times. Her story would later be that while she had only seen the father kick Jonah twice, Jonah later revealed to her that he had been kicked three times by his father. Joe Zito alluded to this in his affidavit, noting that he had seen Jonah laughing when the mother quizzed him about this matter.

[13] According to Joe Zito, he asked the mother whether Jonah had been wearing shin pads at the time of the father’s alleged kicks. He said that the mother told him that while Jonah had been wearing shin pads, they were too small to protect him. As a result, the father had been able to injure Jonah when he kicked him. I note that there was no indication whatsoever in the mother’s affidavit material that Jonah had cried out or screamed upon being kicked by his father.

[14] The day after the alleged assault, the mother told Joe Zito, she returned to the arena to try to obtain corroboration from two women who she thought had witnessed what had happened. According to Joe Zito, the mother admitted to him that she “had lost it on them and scolded them for covering and sucking up to David D’Aloisio”.

[15] Apparently unconvinced by the mother’s allegations, Joe Zito stated that he pointed out to her the legal consequences of taking Jonah to the hospital to complain about his alleged injuries and how they had occurred. The mother then told Joe Zito that she was confused about what to do. One week later, the mother went to the police to report the father’s alleged assault of Jonah. In short order, the local Children’s Aid Society were notified by the police about what had allegedly happened, and the father was charged with assaulting Jonah.

[16] During the time he spent at the mother’s home, Joe Zito noted Jonah did not appear to be in distress or give any indication of being in pain. He recalled that he had observed Jonah moving about the mother’s home without effort. He then noted that when the mother questioned Jonah about the number of times his father had kicked him, Jonah reluctantly conceded to her that he had been kicked “none” (no time), then “one”, “two”, and, finally, “three” times by his father.

[17] Soon after Christmas Day access had occurred, Joe Zito fell out of favour with the mother. Consistent with Dr. Ross’ earlier observation of the mother (see her Parenting Capacity Assessment completed September 17, 2015, filed), this may have been because she now perceived him to be on the father’s side and not hers. When, therefore, he attempted to arrange a supervised visit by Jonah the following week on New Year’s Day, a visit approved by the Children’s Aid Society, the mother told him “to worry about his own kids” and “to mind his own business”.

Issue: Did the Incident Occur?

[18] The truth of the allegation of criminal assault against the father is one which will be determined by this court sitting in its criminal law capacity. The issue of his criminal guilt or innocence has, however, by virtue of subsection 24(4) of the Children’s Law Reform Act a direct impact on the determination of the issue of parenting, whether it be with respect to decision-making power and principal residence or parenting time. The Act states that if a court is assessing a person’s ability to act as a parent, any violence they have engaged in against a spouse or a child sought to be parented or a member of that person’s household must be considered by the court.

[19] A different onus of proof applies in determining whether something has happened or not depending on how the issue is framed. If the issue to be determined is a criminal one, the standard of proof which must be found is that of proof beyond a reasonable doubt. If, on the other hand, the issue to be determined is a civil one, the standard of proof required is that on the basis of probability. On the basis of the evidence in this matter, I am not satisfied on a balance of probability that the mother’s allegation of assault by the father against Jonah has been established. The mother’s allegation simply lacks credibility and provides no corroboration of any kind other than the mother’s allegations.

[20] The mother’s initial response to the alleged assault was to seek corroboration for her suspicions against the father from two women. She claims that they were witnesses to the assault. They are said by her to have denied seeing what happened. Had they at least heard three loud bangs, which they were in a position to do, they would have had to have noticed some unusual conduct taking place only feet away from where they were. Then there was doubt on the mother’s part whether to take the child to the hospital and subsequently report the matter to the police. If Jonah had been injured, as she alleges, would not a normal response have been to take him to a hospital or clinic for treatment? Instead, she equivocated about what she should do. Perhaps she was weighing her options. Perhaps, that is why she hesitate to act? It does not appear that she was certain about which course of action to follow. This casts doubt on her allegation.

[21] Again, while the mother alleged that the child had been physically hurt by the father, there was a lack of credible evidence supporting such harm. He did not scream or shout out when struck; she did not speak about this at all. There was no evidence that Jonah limped or favored any part of his body at the time of the incident or later. We do not even know for certain which part of Jonah’s body was allegedly hurt, although we are left to assume that it was his leg or legs. One would have expected a strong reaction on Jonah’s part when a grown man, his father in this case, angrily kicked him not once but three times. Such kicks would almost certainly have been inflicted in anger and provoked a strong reaction from him.

[22] When it was suggested to the mother that the child had not been harmed because he was wearing shin pads (standard equipment for young hockey players), she argued that an injury had occurred because Jonah had been kicked in an area of his body not protected by his ill-fitted shin pads. Given the father’s devotion to Jonah, his wish that Jonah play hockey as well as the duty of parents and coaching staff to make sure that a child’s equipment fits properly and is in good working order, this is hardly a sustainable allegation. Is it reasonable to conclude that a child so favored by his parents would have been wearing inadequate protective equipment?

[23] Lastly, when seen in the light of the mother’s very poor image of the father and her irrational conviction that Jonah’s access to his father was harmful to him, one is not left with a reasonable conclusion that the father did what the mother has alleged he did to their son on December 3, 2020. There is little in the evidence which persuades this court that the father kicked or otherwise disciplined Jonah physically on December 3, 2020. This uncorroborated accusation against father cannot therefore be used to besmirch his reputation and call into question his ability to properly parent his son or the need to have his parenting time with his son supervised.

Parenting Capacity Assessment (2015)

[24] While this court was not seized with determining the parties’ ability to parent, their 2015 psychological assessment provided some insight into their dysfunctional parenting relationship. The mother did not want the court to refer to the assessment or consider it because, in her view, it was stale dated. I do not agree with her, it being acknowledged that such reports will not normally change significantly in their conclusions if they have been properly done. The work of Dr. Ross, the assessor in this case, is well recognized in this jurisdiction. She is respected for her analytical balance, reasonableness and insightfulness. Having read her report, one can see why the mother would not want the court to consider its content and her view of the mother’s psychological and parenting issues.

[25] In her report, Dr. Ross addressed the matter of parental conflict and its effect on children. She found that the father had made better gains than the mother in appreciating the negative impact of parental conflict on their child. She found no evidence “to suggest that Dr. D’Aloisio presents an elevated risk of physically assaulting either Ms. Breault or his son”. (see page 5). She also noted that her testing failed to corroborate the mother’s allegation that the father was narcissistic. Almost six years later, the mother still believes that the father’s treatment of Jonah is governed by his narcissistic sense of self and that his parenting time with Jonah is therefore harmful to Jonah.

[26] In her report, Dr. Ross stated that her testing indicated there was a strong disposition on the mother’s part to “dichotomize” her relationships, dividing those who were for her and those who were against her. This could explain why later Joe Zito was summarily dismissed by the mother as an access supervisor for Jonah. As noted, (see page 6), Dr. Ross found the mother to be “highly emotionally volatile; her thoughts…often disjointed which made her reasoning difficult to follow”. Accepting that she is a lay person and discounting for this, I found this occurred with respect to her presentation on the motion.

[27] Dr. Ross found the mother’s views of the father “unusually rigid and negative”. Rejecting the mother’s belief that the conflict between her and the father had its origins in the father’s character, Dr. Ross concluded that “the psychometric tests [of the mother] identify a number of characteristics that suggest Ms. Breault is the primary contributor to the conflict”. (See page 8).

[28] Parenting Capacity Assessments were never designed to be determinative of the issue of who was to be awarded custody (now decision-making power) or access to (now parenting time) a child. They were designed to give the court an insight into a parent’s behaviour at a specific point in time. That said, such assessments, when considered in the context of a variety of other information sources such as parenting, educational and social history, can reveal much about the character and ability of persons being assessed. This can assist the court in determining whether there are parenting issues and what should be done to address them. My experience has been that while some parents are motivated to do what is required to improve their parenting abilities. some, to the detriment of their children, are not.

Decision

[29] Perhaps more important than her findings with respect to the parties’ psychological makeup are Dr. Ross’ recommendations regarding future parenting by the parties. In reviewing those recommendations, which were made in light of the parties’ psychological assessments, I wondered about their 2016 agreement respecting parenting orders. Given Dr. Ross’ recommendations, it is surprising that the parties consented to a shared parenting agreement whereby each of them was able to carve out for themself almost uninterrupted weekly contact with Jonah. This was clearly not what Dr. Ross had recommended. Now, five years later, we see the result. As is often the case in these matters, the best interests which were addressed in 2016 seemed more about what was in the best interests of the parties. Now that the parties have once again felt compelled to return to this court to help them resolve their parenting issues, this time it is the best interests of Jonah which must be considered first and foremost. It is no longer a case of re-instating the 2016 order or imposing the need for supervision on it. It is to the recommendations of Dr. Ross in 2015 that the court must turn for guidance.

[30] In her recommendations, Dr. Ross called for an end to the attempt at shared parenting. Instead, she recommended parallel parenting. Dr. Ross concluded:

“Schedules and parameters around custody/access schedules, transitions and decision-making should be outlined through a Court Order in as much detail as possible. The need to communicate and work out details should be limited, as should the need for these parents to negotiate any matters related to Jonah. This model [Dr. Ross advised] would strictly limit communication between the parents, with each parent being given control over their own parenting time. (see page 12)

[31] In the end, Dr. Ross reasoned, such a regime would “prevent parents from wasting their emotional energy trying to gain the other parent’s cooperation and understanding and allow them to focus more fully on Jonah”.

[32] Subsection 24(6) of the amended Children’s Law Reform Act calls on the court to “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”. While this principle was gathering strength at the time Dr. Ross carried out her Parenting Capacity Assessment in 2015, it had not yet become a part of the legislation which now governs the disposition of custody and access (parenting) matters. It is nevertheless clear, though, that Dr. Ross sensed and advocated this new approach to such matters. For this reason, she strongly recommended the need for children’s parents to be involved in all aspects of their lives. Children could and wanted, she insisted, “to maintain high-quality relationships with both parents and should be afforded all opportunities to accomplish this”. As a result, she recommended to the parties that they adopt “an increased time-sharing structure…and [that] equality between the parents should be worked towards”. (See page 10).

[33] Bearing in mind what has happened to the parties since the existing joint custody and access order was made in 2016 and the difficulties which ensued from it, there will, in the child’s best interests, be an order as follows:

(1) The parties shall share exclusive decision-making power within specified areas of the child’s life as follows:

(i) the mother shall decide all matters related to the child’s education and schooling as well as his social and cultural involvement and development.

(ii) the father shall decide all matters relating to the child’s health, including eye, dental and surgical care, prescription medicine and vaccination. He shall be responsible for all matters dealing with the child’s nutrition and his participation in sports and athletic activities. To this end, he shall retain a certified nutritionist who shall establish a balanced diet for the child. This diet shall be communicated to both parents and scrupulously followed by each of them.

(2) The child, soon to be 10 years of age, shall reside in alternate weeks with each of his parents. Commencing with the Friday before his first week at school in September 2021, he shall reside with his mother. He shall be transferred into his mother’s care each alternate Friday after school or at 4:30 p.m. on Fridays when school is not in session. He shall be transferred to his father’s care on Friday of the week following the first week of school and then in alternate weeks on a similar basis. Each parent shall select a person of their choice to carry out the transfer if they themselves are unable to do so without the need to obtain the other parent’s consent.

(3) The parties shall share summer and winter holidays equally on an alternating basis. Each parent shall have parenting time for the full month in alternating months of July and August each year. Commencing in 2022, the mother shall have summer parenting time during the month of July; the father shall have the following month of August. This summer parenting time shall be alternated yearly.

(4) Each parent shall have alternating weekly parenting time during the two-week Christmas school break. In 2021, the mother shall have the first of these two weeks; in 2022, the father shall have the first of the two weeks and alternately so each year. The same will apply to school professional development days which shall be shared alternately on an ongoing basis. March break shall be shared on an alternating yearly basis with the father to have the child for the whole of the March school break and the three- day Easter holiday in 2022. The mother shall have the March school break and the Easter holiday in 2023.

(5) Unless there is a school or medical emergency, the parents will not communicate with each other. This excludes those times when there is a need to communicate about planned sporting and social activities. If and when required, such communication shall be carried out by using Our Family Wizard, with required notice being provided in a timely manner to the other parent. Each parent shall bear the cost of participating in Our Family Wizard. The parents shall cooperate with each other to facilitate the child’s participation in all such activities. The failure of either parent to cooperate with the other shall be interpreted as an unwillingness to do so and rejection of the principles that a parent must communicate with the other when it is in the child’s best interests and support the other parent in their parenting role.

(6) Each parent shall exclusively decide what is happening or done with the child during the week he resides with them. Given the child’s age, the child shall not be allowed to communicate with the parent who does not have his immediate care. While this is regrettable, it is absolutely required in order to put a stop to the child’s manipulation by either parent.

(7) Each parent shall have the right to attend any of the child’s extra-curricular and social activities or school events. Each parent shall notify the other of such events in a timely fashion.

(8) Each parent shall have the right to access professional records and reports respecting the child without the prior consent of the other.

(9) If there is a major disagreement about the child’s care or aspects of it, the parties shall avail themselves of the services a mediator before they are permitted to launch court proceedings. The cost of such mediation shall be borne on a 70/30 basis by the parties in the mother’s favour.

(10) The parties, through counsel which they are directed to retain at their respective cost, shall resolve the issue of continuing child support, if possible, without the necessity of returning to court. Should a parent refuse to retain counsel for this purpose, the other parent shall be at liberty to bring a motion to change before a Judge in Chambers on notice to the other in order to expeditiously to resolve the issue.

(11) Given the material change occurring in the child’s living circumstances by virtue of this order, the fact that the father will now have care of the child fifty per cent (50%) of the time and the fact that the father has a gross annual income very much larger than that of the mother, this court recommends that the father’s monthly child support payments be reduced by 20 per cent from the current level on an annual basis.

(12) Given the father’s responsibility for the child’s participation in sporting activities, he alone will bear the cost of equipment and registration for any sport or sporting activity he enrolls the child in.

Costs

[34] Having given this matter due consideration, I find that the father is entitled to costs in this matter. Once again, he has had to resort to this court in order to resolve the issue of the mother’s continuing obstruction to his parenting time and his relationship with the child. The intention behind the imposition of costs is directly connected to the need to prevent a party from abusing the other party’s rights and the court’s time unnecessarily and without justification. This is clearly such an occasion.

[35] Bearing in mind what has I am therefore ordering that the mother pay to the father his costs and disbursements in the fixed amount of $2,500.00. Such costs shall annually bear interest at the rate of three per cent (3%) calculated semi-annually.

[36] In imposing these costs on the mother, I have borne in mind the disparity in the respective income of the parties. As she has done almost since the beginning, the mother cannot be allowed to continue obstructing the father’s parenting rights, pretending to herself that this is being done for her son’s benefit and in his best interests. This is simply not true. Unless she resolves to change her disposition towards the father and his parenting role, the mother risks ultimately and regrettably losing her role in her son’s life or find it considerably curtailed.

[37] The Applicant shall immediately prepare and forward a draft of the order in this matter without the need of first having it approved as to form and content by the respondent. I will settle the order.

Released: July 22, 2021 Signed: Justice André L. Guay