Court File and Parties

DATE: 2022 07 22 COURT FILE No.: Chatham 21-108 ONTARIO COURT OF JUSTICE

BETWEEN:

VICTOR J. L. MATTHEOS Applicant

— AND —

JESSICA ANNE MARIE BARNIER and TYLER HUFF Respondents

Before: Justice R. B. Horton

Heard on: June 27, 2022 Reasons for Judgment released on: July 22, 2022

Counsel: Stephen Andari, counsel for the Applicant Karen Veenstra, counsel for the Respondent, J. Barnier Tyler Huff, on his own behalf

Decision on Motion

HORTON J.:

[1] The Applicant, Mr. Mattheos, commenced a Motion, initially returnable April 13, 2022, seeking an interim parenting order for joint decision-making responsibility of the child, Mattheos Scott Mattheos, born […], 2014, an interim parenting order granting parenting time or contact time on a graduating and expanding basis and additional ancillary orders relating to the child.

[2] The Respondent mother, Ms. Barnier, filed a motion of her own seeking to have a previously executed domestic contract between the parties filed for consideration within these proceedings, that the motion of the Applicant be stayed pursuant to section 2 (10) of the Family Law Act and that the statement of live birth for the child be amended to identify the child’s father as the Respondent, Tyler Huff.

Evidence Received:

[3] The following evidence has been filed in support of the parties respective claims,

(1) Motion of the Applicant, initially returnable April 13, 2022; (2) Affidavit of Applicant, sworn February 24, 2022; (3) Motion of Respondent Barnier, initially returnable June 15, 2022; (4) Affidavit of Respondent Barnier, sworn May 5, 2022; (5) Affidavit of Shae Lynn Swackhammer, sworn May 5, 2022; (6) Affidavit of Applicant, sworn May 17, 2022; (7) Affidavit of Katerena Mattheos, sworn May 11, 2022; (8) Affidavit of Respondent Barnier, sworn June 3, 2022; (9) Factum of the Applicant; (10) Factum of the Respondent Barnier; (11) Pleadings of the Applicant and Respondents.

Issues for Determination:

[4] The primary issue to be determined is whether it is in the best interest of the child to have parenting or contact time with the Applicant.

[5] Additionally, this court is tasked to determine the following additional issues,

(1) Whether the office of the children’s lawyer should be requested to represent the child, inclusive of a s.112 report; (2) Whether the Domestic Contract executed between the Applicant and the Respondent Barnier dated May 11, 2017 is to be filed for consideration within these proceedings; (3) Whether the statement of live birth for the child should be amended to identify the child’s father as the Respondent, Tyler Huff.

Parenting Time or Contact Time Between Child and Applicant:

[6] The issue of whether a parenting order setting out parenting time between the Applicant and the child pursuant to s. 21(1)(b) Children's Law Reform Act (C.L.R.A.) or a contact order pursuant to s. 21 (3) C.L.R.A is appropriate should visitation between the Applicant and the child be determined to be in the child’s best interest will require determination prior to a final order being made. This court is unable, based on the evidence received to date, to determine whether Mr. Mattheos is a “parent of child” (by virtue of his assertion of having stood in the role of a parent to the child) or alternatively, and as contemplated within s. 21 (3), is, “any person other than the parent…”.

[7] Further evidence will be required for this issue to be fully explored and addressed. It is premature to make such a determination. For reasons that will be expanded upon below, both the assistance of the Office of the Children’s Lawyer and an appreciation of the nature of the domestic contract entered between the parties will assist in resolving this issue.

[8] It is necessary for this court to address, on an interim basis, whether it is in the child’s best interest to exercise time with the Applicant and if it is determined that this is appropriate, the structure of such. On a without prejudice basis this court will utilize s. 21(3) C.L.R.A. as the appropriate jurisdiction to order such contact.

[9] The following circumstances specific to the parties have been considered,

(1) The Applicant and Respondent Barnier were involved in a common-law relationship which commenced in either October 2013 or July 2014. They resided together until approximately August 2016. Thereafter the parties separated and reconciled on a number of occasions, separating on a final basis between February 2021 and April 2021; (2) While not formally residing together following their initial separation there exists common evidence that considerable time was spent in one or both of the parties residences including overnight periods; (3) The child was born […], 2014; (4) Initially the parties believed the Applicant to be the biological father of the child. A paternity test was undertaken and though not conclusive indicated that the Applicant was the father. In early 2017, a paternity test was conducted which determined conclusively that the Respondent Huff was the child’s biological father; (5) The child’s birth was registered noting the Applicant as his father and the child bears the Applicant’s surname; (6) There is disagreement as to the Applicant’s involvement in the care of the child. The Applicant submits he was an active and involved parent both during the time the parties shared a residence and following their separation. The Respondent mother disputes this claim alleging that the Applicant worked and was rarely home to engage with the child; (7) Throughout the periods of separation, and up until the party’s final separation April 2021, the Applicant was involved with the child, provided care for the child in different occasions and continued to contribute financially towards the child. Following the final separation, April 2021, the Respondent prohibited the Applicant from spending time with the child believing this contact not to be in the child’s best interest; (8) The child was enrolled in a number of extracurricular activities both by the Applicant and Respondent. The parties disagree as to consistency of attendance by the Applicant at these activities; (9) The Applicant on learning of the child’s difficulty focusing in school and the recommendation of the Kumon program directed that the child be enrolled and voluntarily paid for this program. This program was actively followed in 2020 and early 2021 with both the Applicant and the Respondent being involved with the instructor; (10) The child has had a relationship with members of the Applicant’s extended family; (11) The Applicant has provided multiple photographs of he and the child within his affidavit material providing some narrative as to activities trips and other events in which he and the child were involved; (12) While the views and preferences of the child have not been received by the court and the Office of the Children’s Lawyer is currently requested to assist this court in this regard the Respondent Barnier argues against the involvement of the office of the children’s lawyer submitting that it is inappropriate and not in the child’s best interests for this process to be undertaken. The Respondent notes she believes the child would wish to see the Applicant but only as a result of the materialistic relationship stemming from the significant gifts provided by the Applicant to the child; (13) The Respondent Barnier raises concerns of intimate partner violence within the relationship of she and the Applicant, submitting that there was mental and emotional abuse inflicted upon her by the Applicant. The Applicant disputes these allegations and notes specifically that there is no corollary evidence supporting these accusations and that the Respondent as within her affidavit material failed to set out fully the particulars of such allegations preventing him from fully rebutting the allegations; (14) The biological father, the Respondent Huff, and the Respondent Barnier have a parenting order dated June 11, 2018, in which the Respondent Huff exercises specific parenting time with the child. By all accounts this time has proceeded well and the child enjoys his time not only with the Respondent Father but the Respondent father’s extended family; (15) The Respondent Huff is of First Nation’s heritage and the child is entitled to benefits pursuant to this background. The Statement of Live Birth however must be amended (requiring the consent of the Applicant or alternatively the consent of the Applicant being dispensed with) in order for these benefits to be pursued. The Applicant at the time the motion was argued indicated that while he was unable to consent to such an order he did not oppose the court making such an order.

[10] In determining whether it is in the best interests of the child to have access with the Applicant s. 24 of the Children’s Law Reform Act within subsections (1)–(4) provides a non-exhaustive list of considerations:

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being.

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 co-operate 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.

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.

[11] The list of best interest factors is 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, needs of the child and the people surrounding the child. No one factor should be considered as dispositive and certainly every factor will not be found in each parenting dispute. It is important that each parenting dispute be decided on its own specific facts with the primary consideration in the child’s physical, emotional and psychological safety, security and well-being.

[12] The recent amendments to the Children’s Law Reform Act recognize that the findings of family violence are of critical importance in determining the best interests of the child. Any suggestion that domestic abuse or family violence has no impact on children and has nothing to do with a parent’s ability can no longer be sustained. Very clearly research has established that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives. It is also clear that domestic violence allegations are very often difficult to prove. Violence occurs behind closed doors and most often lacks corroborating evidence.

[13] In cases where family violence is established it is important that the court consider whether cooperative parenting arrangements such as joint decision-making can be sustained.

[14] I have considered s. 24 CLRA, all evidence filed on behalf of the parties and submissions of counsel fully and make the following findings:

(1) The Applicant was in fact involved with the child from the time the child was born until in or about April 2021 a period of approximately six years; (2) The child referred to the Applicant as “dad” at least up to the time of the parties final separation; (3) No incidents of mistreatment of the child by the Applicant are claimed; (4) The Applicant continued to have regular and consistent contact with the child even during periods of separation between the Applicant and Respondent mother. The Applicant maintained involvement and continued to contribute financially towards the child’s needs; (5) The Respondent mother on at least one occasion communicated directly with the Applicant suggesting that with assistance from him to address some financial misfortune he may spend time with the child; (6) The Applicant indicates his desire to not only not infringe on but rather support the relationship between the child and the Respondent father; (7) While the Respondent mother raises issues regarding family violence those issues raised lack any supportive detail which would permit the Applicant to fully respond. The comments noted above regarding family violence must be considered in light of this fact and the Applicant’s denial; (8) The Respondent mother’s evidence is largely “responsive” with third-party corroboration being largely based on hearsay evidence and the Respondent mother’s own description to the third parties being relied upon; (9) The Respondent mother’s denial that the Applicant, during the relationship and following the initial separation of the parties, was actively involved with the child is simply not credible. Apart from the overall history of the relationship the mother routinely in her material submits that the Applicant was not involved and then provides specific caveats such as noting that the Applicant was not regularly part of the school activities but then noted, “with the exception of some extra assistance as Matthew needed…” (Paragraph 29 affidavit of Respondent sworn May 5, 2022). (10) Similarly, the Respondent’s declarations such as being always present when the child was having contact with the Applicant following separation adding, “most of the time”. The Respondent’s allegations that the Applicant grossly overstates his involvement with the child is also subject to similar caveats; (11) While the Respondent mother submits that her having sought assistance financially or otherwise from the Applicant following separation may be a result of her ongoing inability to separate from the control of the Applicant, it is important to also consider the response of the Applicant during these communications in which he very clearly inquires at the outset of the well-being of the child.

[15] Ultimately, I am not satisfied by the Respondent mother’s evidence. The evidence of both parties, in my opinion, establishes that a strong and positive relationship existed between the Applicant and the child. A relationship which continues based on the evidence before this court to be in the child’s best interest.

[16] In stating this it is now necessary to consider the appropriate contact time between the Applicant and child on an interim basis. The child has not had contact with the Applicant for a significant period. It is clear even from the Respondent mother’s evidence that the child would not be uncomfortable or be unwilling to have contact with the Applicant.

Order(s) re: Parenting and/or Contact Time:

[17] On an interim and without prejudice basis the Applicant shall have contact time with the child, namely Mattheos Scott Mattheos born […], 2014, as follows:

(1) Commencing July 31, 2022, one day per week for not less than four hours. If the specific day of the week for access cannot be agreed upon mutually by the parties such contact time to occur every other Sunday from 12 PM to 4 PM and the week following this access on Thursday from 3:30 PM until 7:30 PM; (2) Following the completion of six visits in accordance with the above contact time such time will be expanded to include alternating Sundays from 10 AM until 6 PM and the week following this access on Thursday 3;30 PM until 7:30 PM; (3) The issue of further or expanded access shall be considered following a determination of whether the office of the children’s lawyer will become involved with this family and shall be subject to further order of this court; (4) The Respondent mother shall provide to the Applicant father an electronic copy of the child’s health card; (5) The Applicant shall have the right to make independent inquiries regarding the ongoing health, education and general welfare of the child and to receive information directly from third-party professionals involved with the child, including but not limited to, educational professionals, medical professionals, counsellors and coaches; (6) The Respondent mother shall keep the Applicant informed as to the identity and contact information of service providers for the child and update that information as required; (7) The Applicant, Respondent mother and Respondent Father shall cooperate to ensure all necessary documentation necessary to obtain a passport for the child is shared. The Respondent mother shall then take the necessary steps to obtain a passport for the child with all parties executing such documentation as necessary.

Further Orders to Issue:

Office of the Children’s Lawyer Involvement

[18] Where the issue for the court to determine is that of the best interests of the child, as it is in this case, the court must consider whether the involvement of the Office of the Children’s Lawyer may be helpful in assessing what is in the best interest of the child. This may include a consideration of the age of the child and the ability of the particular child to express his or her views.

[19] The court should also consider whether the involvement of the OCL in the best interests of the individual child.

[20] The focus again is always to be on the best interests of the child. It is necessary to consider both the advantages and disadvantages of the requested appointment. In this particular case the appointment of the Office of the Children’s Lawyer is opposed by the mother largely on the basis that she has no doubt the child’s views and preferences will be to have contact with the Applicant albeit as a result of the Applicant providing gifts and in her view “buying the child”.

[21] In this circumstance the child’s views and preferences should be pursued. Given the current status of these proceedings, any delay caused by the requested appointment will not negatively disadvantage any party and most importantly the child. While third-party involvement with the family may be intrusive and at times stressful there is no evidence to suggest that the benefit of seeking this additional information would be outweighed by the detrimental effect.

(1) An order requesting the involvement of the Office of the Children’s Lawyer is therefore granted, together with a specific request that a s. 112 report be prepared allowing for greater collateral information to be gathered.

Filing of Domestic Contract Executed Between Applicant and Respondent Mother

[22] Courts are not bound by parenting terms in domestic contracts although they may give an indication about parental intentions at the time they were entered.

[23] Pursuant to section 56 of the Family Law Act, this Court can disregard any provision within a domestic contract and make an order, if it is in the best interests of the child. (see: Paulo v. Yousif [2011] ONCJ 841).

[24] Ultimately, the court should seek to obtain all information necessary to make decisions relating to decision-making, parenting time or contact time that is in the best interest of the specific child. The status quo at the time a domestic contract is entered into and the terms are but one consideration for a court performing this inquiry. While the parties may be at odds as to whether this agreement is or is not to be considered within the current proceedings it is of some relevance, if not only for this court to be better positioned to address whether on a final basis time between the Applicant and the child is to be considered as parenting time or contact time within the meaning of the existing legislation.

(2) The domestic contract executed between the Applicant and Respondent mother dated May 11, 2017, shall be filed for consideration within these proceedings.

Change of Name

[25] At this time,

(3) No party shall change the name of the child without the written consent of the other parties or further order of this Court.

Statement of Live Birth

[26] As the Applicant does not oppose, though would not consent, to the amendment of the Statement of Live Birth of the child, as a result of the confirmation of paternity of the Respondent Huff, and given the possible benefits available to the child as a result of his biological father’s indigenous heritage,

(4) Order shall issue dispensing with the consent of the Applicant and permitting the Respondent mother and Respondent father to amend the Statement of Live Birth for the child to identify the child’s biological father as the Respondent, Tyler Huff.

Costs

(5) In the event the parties are unable to address the issue of costs directly they shall file written submissions of not more than four pages, double spaced, 12 font, with this court. The Applicant shall serve and file his submissions within 30 days and the Respondent mother and Respondent Father shall respond no later than 30 days following receipt of the Applicant’s submissions. The Applicant shall then have the right to reply with no greater than two pages, double spaced, served and filed within 10 days of receipt of the Respondents’ submissions.

Released: July 22, 2022 Signed: Justice R. B. Horton