ONTARIO COURT OF JUSTICE

DATE: 2022-03-08 COURT FILE No.: Woodstock D199/18

BETWEEN:

N.M.L. Applicant

— AND —

A.T.C. Respondent

Before: Justice S. E. J. Paull

Trial Heard on: November 22 and 23, 2021, and February 1 and 4, 2022 Reasons for Judgment released on: March 8, 2022

Counsel: James Battin, for the applicant Rebecca Fox, for the respondent

PAULL J.:

[1] The parties resolved all outstanding issues on a final basis, save and except the issue of A.T.C.’s parenting time to the parties’ 3 year old daughter.

[2] N.M.L., the child’s mother, seeks an order for no parenting time on the basis of allegations of A.T.C.’s highly abusive and stalking behaviours. A.T.C., the child’s father, seeks an order for supervised access so he can have an opportunity to develop a relationship with his daughter, which he alleges has been denied to him unjustly by N.M.L.’s ongoing fabrications about his behaviour.

[3] This issue proceeded to trial over 4 days between November 22, 2021 and February 4, 2022. On behalf of the applicant the court heard evidence from N.M.L., her mother D.L., her boyfriend L.B., and her neighbour J.M. On behalf of the respondent the court heard evidence from A.T.C., his partner J.D., and his sister J.C-B. The court received documentary evidence filed by each party in separate briefs.

[4] The document briefs of the parties were marked as exhibits 2 and 3 for identification purposes only, subject to proof and rulings on admissibility. Only the following tabs in the applicant’s document brief (Ex. 2) were made separate exhibits and considered by the court: tabs 4, 10-15, 18, 20-23, 32, 34, 38-44, and 46. The remaining tabs were either ordered removed from the brief is inadmissible (tabs 2 and 5) or were not referenced and put into evidence during testimony and as a result do not form part of the evidentiary record of this trial. All 3 tabs of the respondent’s document brief were made separate exhibits and considered by the court.

The Law

[5] 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 subsections 24 (2) to (7) of the Children’s Law Reform Act (the Act).

[6] 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.

[7] 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.

[8] 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,

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

(ii) 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

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

[9] 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.

[10] 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;

[11] 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.

[12] 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.

[13] The list of best interests considerations in the Act is not exhaustive. 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. Phillips v. Phillips, 2021 ONSC 2480.

[14] No one factor in the statutory definition of a child’s best interests is given statutory preeminence. The court should consider the level of hostility and the extent to which that hostility may undermine the child’s stability. Wilson v. Wilson, 2015 ONSC 479.

[15] The right of a child to visit with a non-custodial parent and to know and maintain or form an attachment to the non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. Jafari v. Dadar, [1996] N.B.J. No. 38 (NBQB).

[16] The party who seeks to reduce normal access 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 ONCJ 52807, [2003] O.J. No. 2946 (OCJ).

[17] A parent does not have an absolute right of access however, refusing access should only be ordered in extreme circumstances. Worthington v. Worthington, 2000 ONSC 22469, 2000CarswellOnt 4889 (Sup.Ct.).

[18] A court may limit or cancel access to minimize risk to a child from a parent’s conduct or lifestyle: W.(B.H.) v. W.(S.M.), [2001] S.J. No. 161 (QB). Long term harassment and harmful behaviours towards the custodial parent causing the parent and child stress has qualified. Stewart v. Bachman, [2003] O.J. No. 433 (SCJ); Dixon v. Hinsley, 2001 ONCJ 38986, [2001] O.J. No. 3707 (OCJ).

[19] In V. S. J. v. L.J.G., 2004 ONSC 17126, [2004] O.J. No. 2238 (S.C.) at para. 135, Blishen J. provided a useful overview of the factors that have led courts to terminate access:

1. Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear. See M.(B.P.) v. M.(B.L.D.E.), supra; Stewart v. Bachman, [2003] O.J. No. 433 (Sup.Ct.); Studley v. O'Laughlin, [2000] N.S.J. No. 210 (N.S.S.C.) (Fam.Div.); Dixon v. Hinsley, 2001 ONCJ 38986, [2001] O.J. No. 3707.
2. History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child's safety and well being. See Jafari v. Dadar, supra; Maxwell v. Maxwell, [1986] N.B.J.No. 769 (N.B.Q.B.); Abdo v. Abdo, 1993 NSCA 3124, (1993), 126 N.S.R. (2d) 1 (N.S.C.A.); Studley v. O'Laughlin, supra.
3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent. See Tremblay v. Tremblay, 1987 ABQB 147, (1987), 10 R.F.L. (3d) 166; Reeves v. Reeves, [2001] O.J. No. 308 (Sup.Ct).
4. Ongoing severe denigration of the other parent. See Frost v. Allen, [1995] M.J. No. 111 (Man.Q.B.); Gorgichuk v. Gorgichuk, supra.
5. Lack of relationship or attachment between noncustodial parent and child. See Studley v. O'Laughlin, supra; M.(B.P.) v. M.(B.L.D.E.), supra.
6. Neglect or abuse to a child on the access visits. See Maxwell v. Maxwell, supra.
7. Older children's wishes and preferences to terminate access. See Gorgichuk v. Gorgichuk, supra; Frost v. Allen, supra; Dixon v. Hinsley, supra; Pavao v. Pavao, [2000] O.J. No. 1010 (Sup.Ct.).

[20] Blishen J. was also careful to remark at para. 136:

None of the above cited cases deal with one factor alone. In every case, there are a multitude of factors which must be carefully considered and weighed in determining whether to terminate access is in the best interests of the child.

[21] Blishen J. went on to remark that in her view, supervised access should always be considered as an alternative to a complete termination of the parent/child relationship, remarking at para. 140:

Clearly, if there has been an attempt at supervised access which has proven unworkable, such as where the child remains hostile to the father during the visits; the child reacts badly after visits; or, where the access parent continually misses visits or is inappropriate during the access then termination must be considered. See: Studley v. O'Laughlin, supra; Worthington v. Worthington, 2000 ONSC 22469, (2000), 13 R.F.L. (5th) 220 (Ont.Sup.Ct.); Lacaille v. Manger 1994 CarswellOnt 2089; Dixon v. Hinsley, supra.

Background and Evidence

[22] The parties are the parents of one child, A.L-C. born […], 2018. She is the only child of both parents. The parties began living together on January 1, 2015 with N.M.L. moving into A.T.C.’s home in Port Stanley, and they separated on September 18, 2018 when N.M.L. moved with the child into her parents’ home near Otterville, Ontario.

[23] The matter began by way of an application issued November 21, 2018 brought by N.M.L. seeking sole decision-making and child support. Her application was subsequently amended to include a claim for spousal support. A.T.C. filed an answer dated March 13, 2019 seeking graduated parenting time starting out supervised at Merrymount Children’s Centre, and joint decision-making with primary residence remaining with N.M.L..

[24] An interim without prejudice order was made on November 18, 2019 on consent that N.M.L. have custody with A.T.C. having supervised access at Merrymount on alternate weekends.

[25] On December 16, 2019 this order was made interim with the without prejudice designation removed on consent and further directed supervised access at Merrymount in Tillsonburg with the parties completing new intakes in early January 2020. The order also addressed child support and spousal support, including arrears.

[26] On February 10, 2021 a final order was made on consent for sole decision-making to N.M.L. with ongoing child and spousal support. The issue of what, if any, parenting time A.T.C. had was the remaining issue to be addressed.

[27] N.M.L. was 35 years old at the time of trial. After attending college she began working for Community Living in Brantford in a group home in 2009. She was forced to leave this employment after approximately 1.5 years after being diagnosed with cancer and diabetes.

[28] The parties met through a friend in 2011 and developed a friendship starting in 2014. N.M.L. moved into A.T.C.’s home in Port Stanley on January 1, 2015. At that time she had no job and was on ODSP as a result of her ongoing health issues.

[29] N.M.L. testified to experiencing significant levels of abuse at the hands of A.T.C. from the time she moved into the home. She testified to the following prior to the birth of A.L-C.:

1. A.T.C. was physically assaultive on numerous occasions resulting in black eyes, bruises on her body and a broken jaw which resulted from being punched, shoved, and having items including a coffee mug and shovel thrown at her. She filed photographs showing bruises which she stated were the result of A.T.C.’s ongoing assaultive behaviour.
2. A.T.C. became more abusive when he found out she was pregnant. He regularly took her phone and keys so she could not leave or communicate with other people.
3. A.T.C. would make repeated threats to harm or kill her, her family and friends, and her dogs if she left him. She stated she went to the police numerous times, but nothing was done. She testified that she spoke to her parents who were no help, and she contacted DASO, which was also no help.

[30] During the period from around the birth of A.L-C. on […], 2018 to the date of separation on September 18, 2018 she testified to the following:

1. She was in the hospital around the time A.L-C. was born as a result of her health complications, and A.T.C. was sleeping when A.L-C. was born and no support to her. After returning home following the birth she was in “survival mode” as she endeavoured to protect herself and A.L-C..
2. A.T.C. yelled all the time and would scream and punch her. He was not interested in A.L-C. and would routinely lose his temper with her, shake her, and tell A.L-C. to “shut the fuck up” when she cried.
3. A.T.C. was not good at dealing with A.L-C. and only changed 10 diapers all of which fell off. A.T.C. provided no financial support for A.L-C. and she had to buy everything.
4. Her mother, D.L., stayed with her for a few days after the birth to help out. After that point she and A.L-C. spent a lot of time at her parents’ home and only a couple of weeks in Port Stanley. She slowly moved her things out of the home so A.T.C. was not aware of her intention to separate until she returned on September 18, 2018 with her father. She stated that when A.T.C. became aware she was leaving he said she would pay and that she would not see their daughter again.

[31] After separation N.M.L. testified to repeated threats made by A.T.C. over the phone including that he would kill her and A.L-C., call the CAS, plant drugs in her car, and ensure that she would never see A.L-C. again. She returned to the Port Stanley home with her brother and a U-Haul truck on September 23, 2018 to get her belongings during which time A.T.C. followed her around the home and continued to threaten both her and A.L-C..

[32] After separation there were approximately 10 visits which were arranged between the parties for A.T.C. to see the child. N.M.L. testified that she arranged for these to occur in a public place for her safety. The visits occurred at Tim Hortons or another coffee shop or restaurant. Her evidence concerning these visits may be summarized as follows:

1. A.T.C. continued to threaten her throughout the visits that he would kill her, A.L-C., and her family. A.L-C. would scream whenever A.T.C. held her or tried to interact with her. She felt that A.T.C. had no patience for A.L-C., and he would blame the child for acting out and hand her back.
2. She remains terrified of A.T.C. She acknowledged not bringing her parents or anyone else to the visits, but said that she did warn staff at Tim Hortons in advance to call the police if there was a problem.
3. On December 5, 2018 A.T.C. told her he was taking A.L-C. and tried to move towards the door of the Tim Hortons. She stopped him and took A.L-C. back. When they sat down again in the Tim Hortons, A.T.C. was screaming at her.
4. After all the visits he would follow her all the way home. He also parked behind her at Tim Hortons so she could not leave. After the December 5, 2018 visit she found A.T.C. in her parents’ garage holding one of her dogs by the collar so its front feet were off the ground, and it was struggling to breath.
5. The final visit she facilitated was on March 29, 2019. She testified that he was threatening her before going outside for a cigarette. She left and went to her car, and when she went to buckle in A.L-C., he came up behind her and held a yellow and black utility knife to her and made her get in the vehicle. He entered the passenger seat and continued to hold the knife in his lap. He made her drive out of the parking lot. She drove towards the police station in Norwich but saw no vehicles there so did not pull in. A.T.C. stated that if she stopped he would stab her and A.L-C. and leave them on the side of the road. The incident lasted approximately 25 minutes and ended when they returned to Tim Hortons. As soon as she returned home she contacted the police and reported the incident, but no police action was taken. As a result of this incident she refused to facilitate any further visits.

[33] The parties agreed to supervised visits at Merrymount and both parties did their intakes in or about April 2019. Emails from Merrymount were filed which outline the program required a custody agreement or order, even on a temporary basis, in order to offer services. The first visit was scheduled for July 21, 2019 but had to be cancelled as a result of N.M.L.’s father passing away. An email dated July 19, 2019 from the Merrymount program coordinator to N.M.L., confirmed that the next date it could offer to start access was August 4, 2019. However, N.M.L. responded that she was not ready to start access that day and would call when she was ready.

[34] It was clear in correspondence from A.T.C.’s counsel that during this period efforts were being made on his behalf to have a court order agreed to for supervised access. When this was not forthcoming, A.T.C. brought a motion first returnable on October 28, 2019 seeking this order. This resulted in the without prejudice order made on consent on October 28, 2019 for supervised access at Merrymount. This order was made interim on consent on December 16, 2019 and included a term that the parties complete new intakes with Merrymount.

[35] The emails to the parties from Merrymount in 2020 confirmed that both parties contacted Merrymount to complete their intakes. N.M.L.’s was initially scheduled for March 6, 2020 but this was rescheduled by Merrymount. N.M.L.’s intake was ultimately scheduled for March 17, 2020. On March 15, 2020 the pandemic had begun to impact operations and Merrymount provided N.M.L. with the Covid-19 protocols required for her intake. N.M.L.’s email in response on March 16, 2020 stated that she would, “reschedule after the Covid 19”. The program director requested that N.M.L. contact her again, “once the risk decreases”.

[36] On March 17, 2020 Merrymount advised that its supervised access program was closed until further notice. On August 18, 2020 Merrymount advised A.T.C. that it was preparing to reopen its Woodstock location and that it would be reaching out to N.M.L. to have her complete her intake.

[37] On July 12, 2021 in response to an inquiry from A.T.C., Merrymount confirmed that his intake was completed and that each parent had been contacted when the centre reopened. However, as of that date Merrymount had still not yet heard from N.M.L., and the file remained closed as a result.

[38] N.M.L. did not dispute this evidence; however, she testified that she was waiting to hear from Merrymount. A.T.C. has not had parenting time with A.L-C. since March 29, 2019.

[39] N.M.L. testified that the following incidents have occurred at or around her parents’ home on Highway 59 near Otterville since the separation, and she felt that A.T.C. or his friends were responsible for them:

1. On January 19, 2021 she found a dead raccoon that she believed had been shot in the front yard of the home. Under it was a computer-generated note which read “THIS WILL BE ALL OF YOU!”. She provided photos of the raccoon and the note.
2. She provided numerous photographs of vehicles parked out on the highway in front of the cemetery next to her home, in the cemetery, or in the field behind her home. She believed the occupants were watching her with binoculars, taking pictures of her, or simply watching her home. The photos showed numerous vehicles but the occupants or their activities were not readily apparent.
3. She did not recognize any of the vehicles and was unable to record the license plates. She contacted the police numerous times with these concerns. However, often the police did not respond or, if they did, the vehicle had already left.
4. She believed the door locks on the home had been tampered with because of scratches on them. She also believed that the window tilt latch in her bedroom was damaged by someone she believed was attempting a forced entry. She replaced the locks and fixed the window and provided pictures of each.
5. At various times the tires on her vehicle were slashed, the lug nuts loosened on the hub, and that sugar had been put in her gas tank. She provided various pictures and invoices.
6. She found pieces of broken glass, some with peanut butter on them, that had been thrown into her backyard on several occasions. One morning in June 2021 all three of her dogs were sick and vomiting blood after being in the yard the previous night, which required her to take them to the vet. On one occasion A.L-C. found a piece of broken glass with peanut butter on it near her swing set in the backyard and N.M.L. had to stop her putting it in her mouth.
7. Since she stopped A.T.C.’s parenting time after March 2019, N.M.L. testified to “hundreds of calls” to her home and cell phone from various known and unknown numbers repeatedly threatening her and A.L-C.’s life. She provided various screenshots from her phone showing phone numbers.
8. She believed adamantly that all these calls and issues around her home were undertaken by A.T.C. personally, or by his friends acting on his behalf. She filed in evidence police occurrence reports confirming that she contacted the police on numerous occasions reporting threatening phone calls and suspicious vehicles around her property. She did not dispute the accuracy of the occurrence reports in her direct testimony, however felt strongly that there were many more occurrence reports which were missing.

[40] N.M.L. testified that she remains terrified for her and A.L-C.’s lives, and that she feels the police have been no help. She is convinced that A.T.C. will harm A.L-C., even at supervised access, and that Merrymount will not be able to stop him from doing so.

[41] Under cross-examination N.M.L. stated the following:

1. From the time of A.L-C.’s birth all A.T.C. did was scream and swear at A.L-C. There were never any positive moments between A.T.C. and A.L-C., and the child screamed whenever A.T.C. held her. When shown a picture of A.L-C. lying quietly on A.T.C.’s chest she stated that it was the only time he was not yelling and that A.L-C. was calm on that occasion only “briefly”.
2. For a period after separation she had all of A.T.C.’s passwords to access his emails as she assisted him in creating invoices for his work.
3. At the first visit following separation he continued to threaten that he would take A.L-C., and that N.M.L. would never see her. He also shook A.L-C. and threatened to kill her. Her Application and 35.1 affidavit made no reference to harm or threats against A.L-C. When this was put to her, she stated that she remembered this only after counselling.
4. She called the police after every visit, but nothing was done. When asked if she sought a Peace Bond she stated that she had made an appointment to apply for a Peace Bond but missed it because she did not have a babysitter.
5. After the incident where she alleged she and A.L-C. were abducted and threatened at knifepoint, she contacted the police who refused to investigate or to take a statement from her.
6. When asked about the supervised access at Merrymount which she agreed to in her Application and Reply, and in the 2 interim orders for supervised access made on consent, she stated that she did not in fact agree to this but felt she had no choice.
7. She acknowledged as accurate the emails sent between Merrymount and the parties. She acknowledged that Merrymount offered a start date in August 2019 after the first schedule date in July 2019 was cancelled due to her father’s funeral, but that she was not comfortable with it and refused.
8. She stated that before separation there were no issues around her home related to suspicious vehicles and that this only started after her separation from A.T.C. However, Ms. Fox pointed her to several of the police occurrence reports which she had filed in evidence. These reports indicated that between April 2010 in November 2016 she made several calls to police, including from the Port Stanley home prior to separation, about suspicious vehicles and activity.
9. She was further directed to a police occurrence report of February 12, 2021 when she called about incidents around her parents’ home near Otterville in which it stated that she “conceded her ex is likely not involved”. Despite her earlier acceptance that the contents of the occurrence reports were accurate, she stated that the report was inaccurate and should not have been put into evidence. She then stated that she had a lot of problems with a particular police officer who she felt was responsible for the police inaction regarding her complaints.
10. She acknowledged, as outlined in the occurrence reports, that the police had recommended several times since at least September 2019 that she change her cell and home phone number. When asked why she did not do this she stated that it would have been “inconvenient” and a “pain” to change her numbers, and that her mother did not want to change her phone number because she has had it for a long time.
11. N.M.L. denied in cross-examination that she had ever lied about anything in the past, and that she was not lying during her testimony. She was referred to another of the police occurrence reports she filed dated September 15, 2017. It stated that following an investigation the police issued a warning to N.M.L. for attending at a municipal building to make a complaint and identifying herself as the Ontario Fire Marshal. The occurrence report concludes that when spoken to by police N.M.L. “was apologetic and said she made the utterances when she was upset and hoped that it would further her complaint”. N.M.L. disputed the report and stated that it was A.T.C. who had actually done this and that she got blamed for something she did not do. She did, however, acknowledge that she had attended the municipal office and had to write a letter of apology.

[42] L.B., N.M.L.’s boyfriend, testified as follows:

1. He has known N.M.L. for just under 3 years and lives 5 minutes down the road from her. They have dated for approximately 2.5 years, and he attends at her home occasionally.
2. He did some of the repairs around the home to the window, the siding, and the fence that he felt had been intentionally damaged. He has also observed some of the suspicious vehicles around N.M.L.’s home, and on one occasion attempted to get the license plate number but was unsuccessful. He also observed the slashed tires and damage to the rims and wheel lugs.
3. He has observed glass in the yard and saw one package N.M.L. stated she found in the yard that looked like a detergent pod wrapped in plastic wrap.
4. He acknowledged in cross-examination that he does not know who was responsible for any of these issues around the home.

[43] J.M. testified on behalf of N.M.L. as follows:

1. She has lived next door to N.M.L.’s mother for approximately 7 years, and has known N.M.L. for approximately 2 years.
2. She stated that after N.M.L. moved in, their dog could not be kept outside at night because it would bark towards N.M.L.’s home. She and her husband would investigate and never saw anything.
3. She has witnessed vehicles on the side of the highway but assumed it was people pulled over for some reason. She also found glass in the back corner of her yard.
4. She acknowledged that she has never seen anyone in N.M.L.’s yard, but believes she heard someone running away on one occasion.
5. She acknowledged that she has never met A.T.C..

[44] N.M.L.’s mother, D.L., testified as follows:

1. She lives on Highway 59 near Otterville, and N.M.L. and A.L-C. live with her.
2. Prior to the birth of A.L-C., N.M.L. was at her home often, usually every weekend or alternate weekends. She also spent a couple of weekends per month visiting N.M.L. in Port Stanley, including some overnights.
3. She testified to her belief that prior to separation A.T.C. would take the car keys from N.M.L. and believed she observed some underlying tension between N.M.L. and A.T.C. but was not sure what it was.
4. She spent a lot of time before and after A.L-C.’s birth at N.M.L. and A.T.C.’s home. On the first night home following the birth of the child she overheard part of a loud argument between N.M.L. and A.T.C. during which A.T.C. said he was not sure it was his child. She wanted to leave the home that night but was afraid to leave N.M.L. alone.
5. She observed A.T.C. trying to feed A.L-C. a few times but that he had difficulty.
6. Prior to separation she observed some injuries on N.M.L. that concerned her. However, N.M.L. said the gash on her ankle was from a dog leash, and a black eye was from a door. She was suspicious but at the time N.M.L. did not indicate that A.T.C. was responsible and only advised her of this later.
7. She has witnessed strange vehicles and things thrown in the yard but could not say who was doing it and offered no particulars. She witnessed damage to the vehicles and the loosened wheel lugs. Both she and N.M.L. called the OPP many times, but they never responded.

[45] A.T.C., who was 47 years old at the time of trial, testified as follows:

1. He has been self-employed for approximately 5 years as an electrical contractor doing mostly residential work.
2. He has lived with his partner J.D. and her teenage son, R., for the last 2 years.
3. Prior to his relationship with N.M.L. he had been married for approximately 8 or 9 years. They had no children together and have no contact now. There was never any police involvement in their relationship.
4. He confirmed that he met N.M.L. through a friend in 2011 and that she moved into his home in Port Stanley in January 2015. N.M.L. had health problems and he tried to be supportive. There were difficulties early in the relationship and they often argued but it was never physical. He acknowledged that both parties yelled and screamed at times, and that N.M.L. believed he was cheating on her which he denied.
5. He denied ever taking her keys or phone, and stated that he was working a lot of hours to make ends meet. At that time, he felt N.M.L.’s mother was a friend to both of them.
6. He adamantly denied any physically assaultive or abusive behaviours towards N.M.L. or the dogs. He found out that N.M.L. was pregnant with A.L-C. in the end of 2017 and prepared the room and attended all but one or two medical appointments.
7. He acknowledged a verbal argument the night N.M.L. and A.L-C. came home from the hospital because he was not happy that his parents had not been welcome at the hospital or at the home until one month after the birth. He was also not happy about D.L. being there if his family was not welcome.
8. None of his family have ever been permitted to meet A.L-C..
9. After the birth he worked hard and tried to be supportive including getting up at night and being with A.L-C. He also tried to feed and change her but N.M.L. would always intervene and take over. N.M.L. and A.L-C. were gone a lot after the birth, over at her mother’s home, so he had limited time with A.L-C..
10. The parties separated on September 18, 2018 when N.M.L. and her brother arrived with a U-Haul trailer. He denies arguing or following N.M.L. around the home, but rather that he helped her carry things out. After separation N.M.L. permitted no contact with A.L-C. until November 2018 when the visits at Tim Hortons began. These were arranged between the parties by text.
11. N.M.L. would only agree to these limited visits in a public place. He felt that it was not an environment where he could build a relationship with A.L-C..
12. He adamantly denied threatening to harm N.M.L. or A.L-C., to kidnap A.L-C., or that he ever abducted and threatened N.M.L. and A.L-C. at knifepoint. He acknowledged using a utility knife for work but that it remains in his toolbelt in his work truck.
13. His recollection of March 29, 2019 was that the visit went well, after which he walked N.M.L. and A.L-C. out to the vehicle to help carry things out (diaper bag etc.). After putting A.L-C. in her car seat, they parted ways. He acknowledged that he would follow N.M.L. home, but it was not how it was characterized by N.M.L. He drove past her home to get to his home in Port Stanley at that time and also did it to ensure that they got home okay. He stated that he only ever got out of his car on one occasion because he wanted to see the dogs because they were siblings to the dogs he had. N.M.L. gave him permission to do this. He petted and played with them briefly in the garage then left. He denied that he attempted to choke or hurt the dog.
14. After the last visit in March 2019 he asked many times for further visits, which N.M.L. refused. They did agree to Merrymount access but when she refused to follow through with the date scheduled in August 2019 he felt forced to bring a motion for parenting time in September 2019.
15. He has no criminal record. He has four criminal matters outstanding related to N.M.L. including two historic sexual assault charges, a failure to comply related to breaching a non-contact term, and uttering threats.
16. He stated that the breach charge related to three money transfers he sent to N.M.L. for support payments which she accepted. He acknowledged getting calls from the OPP after each transfer and getting 2 warnings but understood from his criminal counsel that it “was not a problem”. The uttering threats charge was laid at the same time.
17. He faced three other charges related to N.M.L.’s allegations of physical assaults from 2018 which were withdrawn on the basis of a common law peace bond on August 12, 2020. He filed the transcript from that proceeding which confirmed that he was not acknowledging the allegations but was not opposed to entering the peace bond.
18. He enjoys a very good relationship with his current partner J.D. There have been challenges in his relationship with her 16-year-old son who lives with them, but they are working things out.
19. He denied being responsible directly or indirectly for anything that N.M.L. alleges has occurred in and around her home and states the last time he was at that property was his last visit with A.L-C. in March 2019 when N.M.L. gave him permission to visit the dogs. He did not recognize the vehicles in any of the pictures which N.M.L. provided.
20. He was thrilled to become a father and wants a relationship with A.L-C., but feels he has never been given a chance.
21. During cross-examination he was taken through N.M.L.’s allegations and photographs and he remained adamant that he has never physically assaulted or threatened N.M.L. or A.L-C., or that he or anyone he knows is responsible for the incidents N.M.L. testified to around her home.
22. He confirmed that some of the screenshots she provided of her phone included his phone number, but that this was only in January 2019 when they were still communicating by text to arrange the visits at Tim Hortons. He pointed out that they were all dated before N.M.L. terminated his access in March 2019.

[46] A.T.C.’ current partner J.D. testified as follows:

1. She met A.T.C. online and they have lived together for 1.5- 2 years. She feels that they communicate well and any arguments they have are worked out through talking.
2. She has never witnessed any aggressive or violent behaviour by A.T.C. towards her or her son. She says A.T.C. and her son have a pretty good relationship and enjoy recreational activities together. A.T.C. also helped him with his online learning during the pandemic.
3. She observed that A.T.C. has been very hurt over not being able to see A.L-C. She has never met or had any contact with N.M.L., and has never been to her home.

[47] A.T.C.’s sister J.C-B. testified as follows:

1. She has 4 children in her care including 1 adoptive and 2 foster children which she also hopes to adopt. She has been a foster parent since 2014 and an auxiliary police officer since 2017. She works from home as a development team lead for a company out of Michigan.
2. She feels her brother has been supportive and caring and has a positive relationship with all her children. He has met all of her foster children and interacted well with them.

[48] On February 4, 2022, the day scheduled for final arguments, N.M.L. was permitted to reopen her case and give evidence concerning an incident which she alleged occurred following the previous court date. N.M.L. testified that she was at home on February 3, 2022 and at 1:34 PM answered a phone call from a local number. The caller sounded male and asked her when she would be done court the next day because he would be paying her a visit. She attempted to call the number back, but it was out of service, and she believed the number was computer-generated to hide the true origin of the call. She acknowledged she had no evidence it was the respondent, but had only spoken to her mother and lawyer about court which led her to conclude that A.T.C. or someone on his behalf was responsible for this.

[49] A.T.C. gave evidence in response to these allegations and denied that he or anyone he knew was responsible. He stated he was working at the time wiring an office.

Credibility Findings and Analysis

[50] The exercise of fact finding in this case is impacted primarily by the court’s credibility assessment of the parties, who offered dramatically opposing evidence about the nature of their relationship and their interactions subsequent to their separation.

[51] Allegations of family violence can represent a particular challenge for courts, as it is behaviour that often occurs “behind closed doors” with the court having only the parties’ allegations and denials to assess. In addition, with respect to family violence allegations, courts must take particular care not to accept that a failure to report is, on its own, suggestive of fabrication or an indication that the complainant lacks credibility for not doing so. Courts recognize that there are many reasons why victims of family violence may not report or not report in a timely fashion.

[52] As outlined in Christakos v De Caires, 2016 ONSC 702:

In assessing credibility in the face of conflicting evidence, MacDonald, J. adopted the outline set out in Re Novak Estate, 2008 NSSC 283, 2008 269 N.S.R. (2d) 84, at paras. 36-37:

There are many tools for assessing credibility:

a) The ability to consider inconsistencies and weaknesses in the witness’s evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony and the testimony of other witnesses.

b) The ability to review independent evidence that confirms or contradicts the witness’ testimony.

c) The ability to assess whether the witness’ testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 BCCA 252, 1951 CarswellBC 133, it is “in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions”, but in doing so I am required not to rely on false or frail assumptions about human behaviour.

d) It is possible to rely upon the demeanour of the witness, including their sincerity and use of language, but it should be done with caution (R. v. Mah, 2002 NSCA 99 [at paras.] 70-75).

e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. R. v. J.H., 2005 ONCA 253, [2005] O.J. No.39 (OCA) [at paras.] 51-56).

There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence. (See R. v. D.R., [1966] 2 S.C.R. 291 at [para.] 93 and R. v. J.H., supra). [Emphasis in original.]

[53] The following are some of the factors which were balanced when the court assessed credibility in K. (M.) v. E. (M.), 2016 CarswellNS 1064 (N.S. Fam. Ct.):

a. What were the inconsistencies and weaknesses in the witness' evidence, which include internal inconsistencies, prior inconsistent statements, inconsistencies between the witness; testimony, and the documentary evidence, and the testimony of other witnesses: Re: Novak Estate, 2008 NSSC 283 (S.C.);

b. Did the witness have an interest in the outcome or was he/she personally connected to either party;

c. Did the witness have a motive to deceive;

d. Did the witness have the ability to observe the factual matters about which he/she testified;

e. Did the witness have a sufficient power of recollection to provide the court with an accurate account;

f. Is the testimony in harmony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and conditions: Faryna v. Chorney, [1952] 2 D.L.R. 3564;

g. Was there an internal consistency and logical flow to the evidence;

h. Was the evidence provided in a candid and straight forward manner, or was the witness evasive, strategic, hesitant, or biased; and

I. Where appropriate, was the witness capable of making an admission against interest, or was the witness self-serving?

[54] The court found A.T.C.’s evidence to be clear, convincing and cogent. He provided his evidence in a straightforward manner and there were no material inconsistencies. He remained consistent during cross-examination.

[55] N.M.L.’s testimony was largely clear, and she was responsive to the questions asked of her. She remained consistent throughout her examination and cross-examination about the abuse, and her strongly held belief that A.T.C. or his friends were responsible for the issues she has experienced around her home.

[56] However, there were several areas of N.M.L.’s evidence that were a concern for this court to an extent that significantly impacted her overall credibility. There were material inconsistencies and weaknesses in her evidence, including inconsistencies within her own evidence, and inconsistencies between her testimony and the independent and other evidence she offered. Some examples include the following:

1. N.M.L. testified that prior to the separation when she lived with A.T.C. in Port Stanley, she made several reports to the police about the physical and emotional abuse she suffered. In her direct evidence she stated that the police did nothing and never came to her house because they said her address “didn’t exist in Port Stanley”, apparently because it had its own postal code. That the police would simply dismiss her serious allegations of domestic violence because they believed her address “didn’t exist” is difficult to accept. Further, her assertion is contradicted by the police occurrence reports she filed as evidence in support of her case. The occurrence reports from June 15, 2016 and November 24, 2016 where she reported suspicious vehicles outside the home in Port Stanley outline the correct dispatch address at 454 George Street. It was clear the police were able to locate her home. The occurrence reports for this period confirm that she contacted police several times, but there was no indication any of her reports concerned A.T.C..
2. N.M.L. stated that she never had any issues around her home prior to her separation with A.T.C. which led her to conclude he was responsible. However, the police occurrence reports she filed included reports from between 2010 and 2017 (prior to and during the time she lived with A.T.C.) outlining several instances where she had made similar reports to the police about suspicious vehicles.
3. N.M.L. testified in her direct evidence that prior to separation she sought assistance from various sources without success. She stated that she tried to leave and to tell her parents, but that it was difficult to do so because A.T.C. regularly took her phone and car keys. This evidence is problematic for two reasons. Firstly, her mother D.L. did not corroborate that N.M.L. told her at that time about the abuse. She testified that while she observed some bruises on N.M.L. that concerned her, N.M.L. did not tell her that A.T.C. was abusive until after separation. Secondly, her allegation of A.T.C. taking her keys and phone, which she stated made it difficult for her to call for help or leave, is not consistent with her own evidence that before and after the birth of A.L-C. she spent a lot of time without A.T.C. at her parents’ home. D.L. also confirmed that before A.L-C.’s birth N.M.L. was often at her home in Otterville, usually every weekend or alternate weekends without A.T.C., and that she visited N.M.L. in Port Stanley a couple of weekends a month, sometimes overnight. After the birth D.L. testified that N.M.L. and A.L-C. were mostly at her home until they moved in fully on September 18, 2018. I am unable to reconcile her conflicting evidence on these points.
4. During her direct evidence regarding the visit that occurred on December 5, 2018 at Tim Hortons she testified that after she prevented A.T.C. from leaving with A.L-C., that he was “very, very angry” and “screaming” at her in Tim Hortons. There was no evidence that staff intervened or called the police, which would be reasonable to expect particularly since she testified that she told staff in advance to contact the police if there were issues. Further, during cross-examination when challenged about A.T.C.’s behaviour during the visits she conceded that he did not scream and yell in Tim Hortons because the staff would have heard and intervened.
5. N.M.L. was consistent in her evidence that she has been subject to regular threats from A.T.C. that he would abduct and kill A.L-C., and that in addition to these threats he would shake and swear at A.L-C. During cross-examination her Application and 35.1 affidavit were put to her which make no reference to any threats or violence related to A.L-C. When asked about this omission she initially indicated that she had told her counsel about it but that it was not put in the documents. The court at that point instructed that she was not to disclose the particulars of any discussions she may have had with her counsel. When Ms. Fox pressed her on this omission, she then stated that at the time she completed the documents she did not remember a lot, and only remembered this when she went to counselling. She offered no further particulars about counselling, or counselling records as a means to corroborate this point. Her varying and evolving answers on this issue negatively impacted her credibility. Further N.M.L. presented detailed allegations with photographs going back to before separation. In the circumstances I am unable to accept that she would not remember the harm and threats of harm against A.L-C. when preparing her pleadings with the assistance of counsel, even if she was under a degree of stress at the time.

[57] There were other areas of concern with N.M.L.’s evidence. She was adamant in her testimony that there had never been any positive interactions between A.T.C. and A.L-C., and that A.L-C. screamed whenever he tried to interact with her. When shown a picture during cross-examination of A.L-C. lying quietly on her father’s chest she was unable to concede that there were positive moments and stated that this only happened this once and briefly. She went on to explain that she was in the room and had calmed A.L-C. down momentarily before the shot was taken, suggesting that she was solely responsible for this moment occurring.

[58] This was indicative of her evidence generally where she was unable or unwilling to make any admission against her interest. It left the court with the impression that she was endeavouring to be strategic and self-serving at times.

[59] This is contrasted with A.T.C. who acknowledged that he participated in the yelling and screaming during the relationship. He was also clear in his testimony that he felt N.M.L. was otherwise a good mother. A.T.C. conceded primary residence in his initial pleadings, and agreed to interim child and spousal support including arrears at the beginning stages of this litigation. Prior to trial he consented to final orders for child and spousal support, and that A.L-C. continue to reside in the primary care of N.M.L. and that she have sole decision-making authority.

[60] The police occurrence report of September 15, 2017 states that N.M.L. was issued a warning for attending in a municipal office and misrepresenting herself as the Fire Marshall. She disputed that she misrepresented herself, and stated that it was A.T.C. who had done this and that the police were mistaken. A.T.C. is not referred to in the occurrence report and N.M.L. conceded she did attend at the municipal office and that she wrote a letter of apology. I do not find her response to this report persuasive, and I accept the contents of the occurrence report over her testimony on this issue. While this incident is not material to the allegations in this case, it suggests a carelessness for the truth that negatively impacts N.M.L.’s overall credibility.

[61] There were other areas were N.M.L.’s evidence was simply, “not in harmony with the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and conditions”, Faryna v. Chorney [1952] 2 DLR 3564 (B.C.C.A.), and for which she was unable to offer any reasonable explanation. For example:

1. She testified to “hundreds” of telephone calls threatening her and A.L-C.’s life and acknowledged that the police had repeatedly advised her to change her phone numbers. Her response that she chose not to do so because it would be “inconvenient” and a “pain” was not reasonable given the extent and severity of the threats and harassment she alleged.
2. Her evidence about applying for the Peace Bond was also problematic. During cross-examination she was asked, given her evidence of the extent of the violence and threats and the police inaction, whether she made efforts to obtain a Peace Bond against A.T.C. She testified that she did file an application for a Peace Bond but never got an appointment with a Justice of the Peace. When pressed on this point she stated that she did in fact have an appointment but did not show up because she had no babysitter. There was no evidence that she ever followed up or rescheduled an appointment to apply for the Peace Bond. In addition to the inconsistency in her evidence on this point, given her stated level of fear for herself and A.L-C., her evidence of not following through in pursuing a Peace Bond was simply not reasonable in the circumstances.

[62] A further area of concern for this court regarding the veracity of N.M.L.’s allegations is that there was little independent evidence to corroborate the most serious of her allegations and no evidence connecting A.T.C. to any of the issues that may be occurring around her home. While such corroboration is not necessary and not always available in cases of family violence, given the other concerns with her evidence the need for corroboration takes on greater importance.

[63] Her allegations regarding the raccoon and threatening note in January 2021 and the abduction at knifepoint in March 2019 are extremely serious. N.M.L. testified she reported these incidents to the police. However, there is no reference to these incidents in any of the occurrence reports. Given the seriousness of the allegations I have difficulty accepting that she reported these to the police and that they simply went unrecorded and uninvestigated as she stated.

[64] Further, apart from her own photographs there was no corroboration for the incident of the raccoon or the broken glass with peanut butter on it. She offered multiple photographs of dog vomit which she appears to have forwarded to the police in an email on June 11, 2021. She testified that at that time she was required to take the dogs to the vet for emergency treatment. She offered various invoices from the veterinarian, but none were dated in June 2021. L.B. testified to seeing broken glass and J.M. testified to finding broken glass in the back of her own yard, but neither witness referenced the peanut butter.

[65] More importantly, her mother D.L., who she lives with, did not testify to observing or being aware of the raccoon and note, or the glass and peanut butter. D.L. testified that after the strange vehicles and “stuff thrown in her yard” they got security cameras. D.L. offered no specific corroboration on either of these allegations and conceded, as did N.M.L., that she could not say for certain who was responsible for any of the issues around her home.

[66] With respect to the evidence of L.B., D.L., and J.M., I do not find them as lacking credibility, rather that they had little to offer on the most serious allegations, and nothing to offer to suggest that whatever may have been happening was a result of actions by A.T.C.

[67] The photographs N.M.L. offered of various unidentified vehicles parked in front of or in the cemetery next to her home are not sufficient to corroborate her testimony that the occupants were watching and taking pictures of her. The occupants and their activities were not visible in the photographs and there was no evidence connecting A.T.C to any of the vehicles. It is possible the drivers were visiting the cemetery, or stopped on the side of the highway for any number of other reasons not related to N.M.L. The police occurrence reports also establish that N.M.L. has a history of making complaints to police about suspicious vehicles both prior to and during her relationship with A.T.C.

[68] Further, given that N.M.L. resides with her mother, it would have been reasonable to expect that she would corroborate receiving or overhearing some of the “hundreds” of threatening phone calls made to N.M.L.’s cell phone and to the landline in her home. D.L. did not offer this evidence. N.M.L.’s choice to not have anyone with her for support at any of the visits at Tim Hortons was also not reasonable or consistent with her stated level of fear and her evidence of A.T.C.’s ongoing threatening behaviour at those visits.

[69] Inconsistencies or weaknesses in the witness’s evidence vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned.

[70] The inconsistencies in N.M.L.’s evidence are material and relate directly to her allegations against A.T.C. None of the inconsistencies or weaknesses noted with N.M.L.’s evidence on their own would have been sufficient to justify a rejection of her evidence. However, when taken together they are sufficient in my view to put into question her entire evidentiary narrative on the nature of her interactions with A.T.C.

[71] On the basis of the foregoing and unless otherwise noted, where the parties conflict in their evidence, the court prefers the evidence of A.T.C. over that of N.M.L..

[72] There may be concerning events going on around her home, and it is possible that A.T.C. is responsible for some or all of these events. However, on the evidence offered at this trial I am unable to find that it is probable that he is.

[73] While I have not accepted N.M.L.’s allegations of violence, threats, and stalking against A.T.C., I find that both parties were engaged in a significant level of verbal conflict. A.T.C. acknowledges he participated in the yelling and screaming that both parties engaged in during the relationship, and D.L. testified to overhearing part of a loud argument between the parties on the day the child was brought home from the hospital. Protecting the child from family conflict is a basic obligation of parents, and both parties share the responsibility for the significant level of conflict.

[74] Despite this concern, A.T.C. has approached many aspects of this litigation in a more child focused and reasonable manner. He conceded primary residence in his initial pleadings, and consented to interim then final child and spousal support orders, including arrears, and that N.M.L. have sole decision-making authority. There was also no indication that he was in arrears of his support obligations.

[75] By contrast N.M.L. consented to 2 orders for temporary parenting time for A.T.C. at Merrymount, then ultimately failed to follow them. The Merrymount records confirmed that both parents had been contacted when it reopened so that A.T.C.’s supervised parenting time could commence, but that N.M.L. did not respond. N.M.L. was clear in her evidence that, while she consented to these orders, she did not agree with them. I do not accept her evidence that she was waiting to hear from Merrymount. Rather, I find that it is more likely than not that N.M.L. had no intention of following through with the orders for A.T.C.’s parenting time when she consented to them.

[76] This has resulted in a significant gap in A.L-C. seeing her father. A portion of this time is neither party’s responsibility and is based on the pandemic causing a suspension of services at Merrymount for several months. However, the responsibility for the remainder of the gap rests primarily with N.M.L. She remained in breach of the temporary orders she consented to. If she was of the view that the order was no longer appropriate because of intervening events she was obliged to bring the matter back to court for a review rather than to simply ignore the order. In this regard she has not acted reasonably.

[77] I am mindful of the broadened and specific reference family violence now has in the CLRA. N.M.L. makes extremely serious allegations of family violence against A.T.C., any one of which, if true, would have strongly supported the order she seeks. However, I have not accepted N.M.L.’s evidence as establishing these allegations on a balance of probabilities. In these circumstances, N.M.L. has unreasonably withheld A.T.C.’s parenting time with A.L-C., with the result being that his family has never met A.L-C., and he has not seen her in almost 3 years.

[78] Any order for parenting time must be made solely on the basis of what is in the child’s best interests. The reality at this point is that A.L-C. very likely does not know her father. The issue is whether commencing parenting time at this point is in the child’s best interest.

[79] A.T.C. has a partner and sister who support and trust him around their own children. He has no criminal record, and there was no evidence that the police had ever been involved with him prior to the separation with N.M.L. Although continuing to send support payments directly to N.M.L. after being warned twice by the police was inappropriate and ill-advised, despite whatever his criminal counsel may have told him about breaching no contact orders. Neither party offered testimony concerning the allegations that form the basis of the outstanding sexual assault charges currently before the criminal court.

[80] In the circumstances A.T.C. is seeking a final order for supervised access so that he and A.L-C. may have the opportunity to build a relationship. I do not accept the criticism that he has no particularized plan for his parenting time. His parenting plan is a simple one as a matter of necessity. As a result of the pandemic and N.M.L.’s failure to comply with the temporary order, he has not had the opportunity to build a relationship with A.L-C. This is not a case where the court can conclude that supervised parenting time has been attempted and failed.

[81] His plan is to get to know her in a structured and supervised setting in a manner which reflects the fact that A.L-C. very likely does not know him. It is also in A.L-C.’s interests that the focus at the supervised access initially be on building a relationship between father and daughter before other members of his family participate. His proposal that no one else in his family attend until after 12 visits is appropriate in the circumstances. It is also appropriate that he be permitted to take photographs of the child subject to a term that they are not posted or shared on social media.

[82] I am mindful of the level of conflict and distrust between the parties in this matter, and the extent that this may undermine the child’s stability if an order for parenting time is made. However, given the findings this court has made on the evidence, this is not one of the extreme or unusual circumstances where the child’s fundamental right to know and form an attachment with both her parents ought to be forfeited.

[83] The issue is not to reward or punish either parent but to put an arrangement in place that will best serve the interests of the child. Having considered all the factors outlined herein, and in s.24 of the CLRA, the best interests of the child support an order for supervised parenting time for A.T.C.

[84] Based on all the considerations outlined herein, there shall be a final order as follows:

1. The respondent shall have supervised parenting time with the child at the Woodstock Merrymount Children’s Centre or other supervised access program that is available to the parties. Parenting time shall be one two-hour visit per week.
2. The parties shall complete their intakes with Merrymount within 21 days of the date of this order.
3. The parties shall refrain from making disparaging remarks to the child about the other parent or to allow others to speak in such a manner in the presence of the child. The parties shall actively encourage the child to have a positive relationship with both parents and the applicant will work on creating a positive mood for A.L-C.’s visits with her father.
4. The respondent shall be permitted to take photographs during his parenting time but shall not post any of the photographs on any form of social media.
5. If a visit is cancelled due to illness of any party, there shall be a makeup date scheduled.
6. After 12 completed visits, the respondent may include other family members at visits.

The parties are encouraged to resolve the issue of costs in this matter. However, if the respondent seeks an order for costs he shall serve and file written submissions, not to exceed three pages, excluding attachments by March 23, 2020 with the applicant serving and filing written submissions, not to exceed three pages, excluding attachments by April 6, 2022. If no submissions are received from the respondent by the deadline there shall be no order as to costs.

Released: March 8, 2022 Signed: “Justice S. E. J. Paull”