ONTARIO COURT OF JUSTICE

CITATION: M.H.S.S. v. M.R., 2022 ONCJ 550

DATE: November 17, 2022

COURT FILE No.: D-42007/21

BETWEEN:

M.H.S.S. also known as H.S.S. also known as M.H.S.S.

Applicant

— AND —

M.R.

Respondent

Before Justice Roselyn Zisman

Heard on October 24 to 28, 2022

Reasons for Judgment released on November 17, 2022

Ash Mazinani.................................................................................. counsel for the applicant

Glenda Perry.............................................................................. counsel for the respondent

Reasons for Decision

Zisman, J.:

1. Introduction

[1] This trial was about the parenting arrangements and decision-making responsibilities for the parties’ two children, H.S. who is 6 years old and D.S. who is 3 years old and child support obligations.

[2] The Applicant (father) seeks an order that the children reside in his primary care or in the alternative, for shared parenting arrangement of a week about schedule or a 2-2-3 schedule and in any case for sole decision-making responsibilities. He seeks incidental parenting orders that the mother not remove the children from Canada without his prior consent and that the mother not make any passport applications for the children.

[3] If successful, the father seeks an order that the mother have parenting time supervised by the maternal grandmother. He also seeks an order that the temporary restraining order be vacated. If the children remain in the primary care of the mother, then he seeks an order that his child support be based on his actual 2021 income of $24,718 as of the date of his application.

[4] The Respondent (mother) seeks an order for primary residence, sole decision-making responsibilities and incidental parenting orders, including orders to permit her to obtain government documents and travel with the children without the prior consent of the father. The mother seeks supervised parenting time for the father, a restraining order, a non-removal order and other conduct orders.

[5] With respect to the child support, the mother seeks an order that the father pay child support based on an imputed income as of the date of separation. The mother seeks an order that the father’s child support obligation from November 1, 2019, to January 31, 2021, based on an income of $36,732 and thereafter an imputed income of $65,000.

[6] The trial was organized as a focused trial by the case management judge, Justice Debra Paulseth. The parties were required to serve and file affidavits for their direct evidence and will say statements or affidavits of any collateral witnesses. There were timelines for serving and filing the trial record and any documents they intended to rely upon. There were also time limits for additional direct examination and cross-examination.

[7] Both parties provided their affidavits as their evidence in chief. The court permitted counsel more time in their cross-examination of the parties and for their closing arguments given complexities that arose during the trial.

[8] The father did not call any witnesses except for one doctor. The mother called the maternal grandmother, the maternal aunt and uncle as witnesses. The collateral witnesses’ direct evidence was by affidavit and they were subject to cross-examination.

[9] The court was greatly assisted by the use of simultaneous interpretation for the mother and two of her witnesses.

[10] The issues for the court to determine are:

a. What parenting orders regarding primary residence, decision-making responsibilities, parenting time and incidental orders of parenting are in the children’s best interests?

b. Should there be a continuation of the temporary restraining order against the father?

c. If the children continue to reside primarily with the mother, what child support order should be made? Should income be imputed to the father? When should child support commence?

2. Background facts

[11] The father is 35 years old and was born in Afghanistan. He has a Bachelors degree in Economics that he obtained from the Kardon University in Afghanistan. He used to work for the United Nations International Security Assistance Force and for NATO in Afghanistan.

[12] The mother is 28 years old and was also born in Afghanistan.

[13] The mother and her family immigrated to Canada when the mother was 9 years old. The mother is a Canadian citizen. She completed high school and is currently enrolled in an adult education program.

[14] The father and mother are first cousins - their mothers are sisters.

[15] The father and mother had an arranged marriage in Afghanistan on July 2, 2011. The mother was only 17 years old when they were married and the father was 24 years old.

[16] The mother then returned to Canada and in 2012, when she turned 18 years old, she sponsored the father to come to Canada. The father arrived in Canada on January 20, 2015. This was the first time that the parties resided together.

[17] The father has now obtained his Canadian citizenship.

[18] Both children are Canadian and Afghanistan citizens.

[19] The parties had a conflictual relationship and each parent has alleged that the other parent was abusive to them and the children.

[20] The parties separated on October 19, 2019. The mother alleges the father physically abused her and hit one of the children. After the separation, the children resided with the mother in the former matrimonial apartment.

[21] The father saw the children after the parties separated, although the extent of his contact is disputed. The father did not have any overnight parenting time with the children.

[22] The mother had a mental health breakdown and was hospitalized from May 27, 2021, until July 26, 2021. During this time the children resided with and were cared for by the maternal grandmother. The father continued to see the children for day visits.

[23] After being released from the hospital, the mother discovered that the father had terminated the apartment lease and she and the children were homeless. The mother and children resided with her brother until they found new accommodations.

[24] The children continued to reside with the mother.

[25] On September 17, 2021, the father picked up the children for a prearranged day visit and then refused to return the children. The mother contacted the police and the Children's Aid Society of Toronto (CAS) but they were unable to assist her and directed the mother to family court.

[26] The father refused to permit the mother to see the children but did allow some virtual contact.

[27] The father issued this Application on October 22, 2021 but did not serve the mother. The father did not take H.S. to her school and told D.S.’s daycare not to permit the mother to see her at the daycare.

[28] The mother retained counsel and on November 19, 2021, brought an urgent motion without notice for the return of the children.

[29] Justice Stanley Sherr heard the motion and held that the mother had established a prima facie case of an abduction risk if the father was provided notice of the urgent motion. He also held that the mother had established a prima facie case that she was at risk of physical harm if the father received notice of the motion.

[30] The court ordered that on a temporary without prejudice basis that the father arrange through counsel for the immediate safe delivery of the children to the mother, that the mother have exclusive parenting time with the children and that they reside in her primary care.

[31] Based on concerns raised by the father in his application, the court ordered that the maternal grandmother be present during the mother’s parenting time and that the children not be removed from Ontario.

[32] An order was also made for police enforcement of the order, that the father deposit all of his passports and the children’s passports with either his counsel or the court. A restraining order was also ordered. Any school or daycare where the children were attending were ordered to comply with the order and the Massey Centre Daycare was to provide the father’s address to the mother’s counsel as the mother did not know where the father was residing. The motion was adjourned to November 25^th^ on notice to the father.

[33] The mother was able to pick up D.S. from daycare shortly after the order was made. The mother who was unaware of the father’s address, obtained his address from the daycare supervisor. H.S. was returned later that evening with the assistance of the police.

[34] On November 25^th^, the mother was granted an adjournment to respond to the father’s affidavit. A further temporary without prejudice order was made that provided the father have up to 6 hours of parenting time on a Saturday and Sunday to be supervised by a professional third-party supervisor. The father was to advise the mother at least 72 hours in advance as to the hours and days he wished to exercise parenting time and he was responsible for paying the cost of the supervision. The mother was granted primary residence of the children. The restraining order was amended to permit the father’s parenting time.

[35] The father did not comply with the term of the order regarding depositing his passports or those of the children.

[36] The temporary motion was heard before Justice Sherr on December 17, 2021. In addition to the affidavits of both parties and the affidavits of a maternal uncle and maternal grandmother, medical reports from the mother’s family doctor and psychiatrist and CAS records were filed. Each party was also permitted brief cross-examination of the other party.

[37] Justice Sherr released his decision on December 21, 2021. In summary the decision provided that:

i) The children reside in the primary care of the mother and that the mother have decision-making responsibilities.

ii) The father exercise parenting time of up to 6 hours weekly on either a Saturday or Sunday, to be supervised by a third-party professional supervisor or at Access for Parents and Children (APCO).

iii) The father to notify the mother’s at least 72 hours in advance as to how much parenting time he will be exercising, on which days and notify the mother through counsel of his choice of supervision service.

iv) The father’s parenting time only be conducted in English.

v) The father to pay the cost of the supervised parenting time and for the cost of the notes of the supervised parenting time and provide a copy of those notes free of cost to the mother’s counsel.

vi) The father not denigrate the mother or the maternal family to the children and if he did so, the visit was to be stopped.

vii) The father was ordered to deposit with the court all his passports and the children’s passports from all countries, together with an affidavit that these are all the passports in his possession or control. The father was required to provide proof that he had done so to the mother’s counsel before any parenting time takes place.

viii) Neither the father or his agents were to remove the children from the City of Toronto.

ix) A police assistance clause was ordered.

[38] A separate restraining order was issued that prohibited the father from attending within 500 metres of the mother’s home, place of work or school or any other place the father knows her to be. He was also prohibited from attending within 500 metres of the children’s home, daycare, school or babysitter or any other place the father knows them to be at any time and for any purpose except to exercise his parenting time in accordance with the order of December 21, 2021. The November 25^th^ restraining order was terminated being replaced with the new restraining order.

[39] On January 24, 2022, Justice Sherr released his decision with respect to costs after reviewing the written cost submissions of counsel. The father was ordered to pay costs of $10,000 at the rate of $300 per month. The court endorsed that if a court subsequently determines that the father has additional means or is earning more than he is claiming, it can order a more aggressive payment of the costs.

[40] On March 16, 2022, the parties attended for a case conference before the case management judge, Justice Paulseth. The parties consented to a temporary without prejudice order that the father pay child support of $555.22 per month as of December 1, 2021, based on the father’s 2019 income of $36,732 and in accordance with the Child Support Guidelines.

[41] The father consented to an order that the style of cause be amended to state that the father, M.H.S. was also known as, H.S. and also known as M.H.S.

[42] On April 25, 2022, the parties attended for a further case conference before Justice Paulseth. The father was ordered to provide an itemized list of disclosure within 7 days in the form of an affidavit with numbered pages, tabbed and a bookmarked table of contents. Any further disclosure requests were to be made by Form 14B motion.

[43] On June 18, 2022, a settlement conference was held before Justice Paulseth. A timetable was set for the service and filing of documents and time limits for examination and cross-examinations. The case was adjourned to the October 17^th^ trial sittings.

[44] On July 8, 2022, an order was made for the production of any occurrence reports, notes or recordings in the possession of the Toronto Police Service regarding the father.

[45] On September 12, 2022, an order was made for the production of updated CAS records.

[46] The trial proceeded on October 24^th^ to 28^th^, 2022. The mother and the maternal grandmother and maternal aunt testified with the assistance of a Dari interpreter.

3. Procedural issues

[47] Counsel for mother sought to strike statements in the father’s affidavit that contained hearsay being tendered for the truth, opinion evidence, statements that were argumentative and statements that sought to interpret Justice Sherr’s temporary decision. Counsel were advised that the court agreed with the submissions of the mother’s counsel that any such statements were inadmissible.

[48] Counsel were also advised that any statements attributed to these young children tendered by either parent would not be relied upon on any basis that is, not for the truth and not even for the fact that the statement was made as neither party was a neutral party. However, if statements were recorded by a neutral third party such as a society worker or third-party supervisor then the statement would be admissible for the fact that the statement was made but not for the truth of its contents unless submissions were made as to the admissibility of the children’s statements for their truth. No submissions were made on this issue.

[49] Counsel for the mother served Notices, pursuant to the Evidence Act, to rely on medical reports and business records.

[50] The records of the society were introduced as business records on consent. They can be relied upon for observations, admissions made by the parties but not for any opinion expressed.

[51] Counsel for the father did not serve any Evidence Act Notices but submitted that he intended to rely on the common law for the introduction of any records. However, in his closing arguments, no submissions were made regarding the admissibility of any records or documents that he intended to rely upon.

[52] Counsel for the father prepared a “trial record” that contained many documents that were not properly in a Trial Record and he also prepared an exhibit brief. Only the documents identified and marked as exhibits were relied upon.

[53] Counsel for the father attempted to introduce into evidence transcripts of various audio tapes. Counsel for the mother was not served with a USB stick or files containing the audio files. Instead, the exhibit book contained a page that had long codes for links to a Google link drive, in other words they were not hyperlinked.

[54] All the audio recordings and the transcripts were marked only for identification. In the father’s affidavit he makes extensive references to the contents of these audio tapes. The court advised the father’s counsel that he should have provided the mother’s counsel with a copy of these recordings on a USB.

[55] During the trial, counsel then produced a USB with the audio recordings. Despite the procedural irregularities, the court ordered that a few of the recordings be played and that the court appointed Dari interpreter translate the contents to the best of his ability. After hearing one short recording and then about 15 minutes of another recording, it became clear that the transcripts submitted by the father were seriously inaccurate and many portions of the audio recordings were inaudible.

[56] After hearing the audio recordings, the court expressed several concerns about the admissibility of any of the recordings. The transcripts were not certified but simply translated by an interpreter. Although, the interpreter’s stamp does indicate that he is accredited by “A.T.I.O., I.R.B. Canada and I.L.S.A.T certified”, there was no evidence as to the meaning of these designations or the difference between translating and certifying a recording.

[57] The father personally selected the interpreter and had ongoing communication with him. There are concerns about the relationship between the father and the interpreter and concerns about the continuity and reliability of the audio recordings. With respect to one of the recordings the father sent it to the interpreter in 4 different segments. The father admitted that he asked the translator to add names and content to one of the transcripts. The father also testified that he paid the interpreter in cash.

[58] The court advised the father’s counsel to address the admissibility of the audio recordings and the transcripts of the recordings in closing argument and to address the concerns noted by the court including, the court’s general reluctance to permit evidence of surreptitious recordings in family law proceedings.

[59] At the commencement of the father’s counsel’s closing submissions, he indicated he would not be arguing for the admission of the audio recordings or the transcripts into evidence.[^1] He had not previously advised mother’s counsel of this position.

[60] The time spent by counsel for the mother in preparing to address the admissibility of the recordings and listening to the recordings is an issue for costs that will be addressed in any subsequent cost submissions.

[61] Counsel for the mother is requesting various orders to prevent the father from continuing to surreptitiously record the mother or the children. Accordingly, it is a relevant consideration for the court that the father not only made the recordings that were before the court but he testified that he had been recording the mother since 2015. Moreover, as the father referenced in his affidavit many comments, he alleged the mother made on the tapes, the mother was required to respond to the allegations made by the father based on the recordings that the court finds were unreliable and that were then not introduced into evidence.

[62] As the audio recordings of the transcripts of those recordings are not evidence in this trial, the father’s allegations regarding the mother are not corroborated except as deposed in her affidavit or admitted in cross-examination.

4. Credibility and reliability

[63] As in most family law cases where there are allegations of family violence and conflict, there is generally little if any corroborating evidence and findings of fact turn on the credibility and reliability of the parties.

[64] Counsel for the father raises many issues with respect to the mother’s credibility that generally relate to minor insignificant issues or relate to different versions of events as related by the parties.

[65] However, the mother in her affidavit does made statements that are exaggerated and strain credibility. However, I have taken into consideration that the mother appears to be much less sophisticated than the father and easily manipulated and controlled by him.

[66] As an example of the mother’s lack of credibility, a great deal of time was spent by the father with respect to two medical notes by Dr. Lindsay from 2008 and 2011. At that time, the mother was 14 and 16 years old. The father sought to introduce these notes to prove that the mother was not taking her medications for epilepsy. In the mother’s affidavit, she stated that she had never seen the notes before and questioned if they are complete, authentic and accused the father of forging them.

[67] As the mother would not acknowledge the authenticity of the documents, the father summoned Dr. Lindsay as a witness. Although she was summonsed, she was not asked to bring her entire file. Although she testified that the medical notes appeared to be hers, she had not compared them to the original that were in the possession of the hospital. She confirmed that the mother had not consented to the release of any of her medical records to the father.

[68] I find that the notes are genuine and not “forged” as alleged by the mother. However, the relevance of these notes and the mother’s reluctance to admit they are genuine does not seriously impact her overall credibility.

[69] It is alleged that the mother did not tell the truth as she deposed that the father was fired from his job at Fido for stealing. But the father relies on an email he sent to FIDO on September 11, 2017, resigning from his position. The mother in cross-examination clarified that the father told her he stole funds but not that he was fired as a result. Again, I do not find this clarification seriously impacts on the mother’s credibility.

[70] There were several other allegations that the mother was cross-examined about such as people telling her about horrible things the father did while in Afghanistan, that the father had multiple passports, which in fact was true, although the father provided an explanation.

[71] The mother also alleged that the father used different names, including on his passports. Although he did not use different names on his passport he did on other documents. The father agreed that the style of cause of the proceedings be changed to reflect these names. The fact that they only related to use of his full name or a different spelling does not reflect on the mother’s overall credibility.

[72] The mother was cross-examined on several other minor discrepancies such as whether the father bought furniture or bought her gifts or let her use social media.

[73] However, on the important issues of the father assaulting her, controlling her emotionally and financially, and threats to abduct the children, she was not shaken in cross-examination.

[74] I do have some concern about the mother’s credibility with respect to her use of physical discipline. With respect to an incident in May 2019, before the separation, the father alleged that the mother bit H.S. as punishment of H.S. for biting her younger sister D.S. The mother in her affidavit testified that the father told her to call the maternal grandmother and say that she bit H.S. on the hand so that she could see if the maternal grandmother really loved her grandchildren and would tell the mother not to bite or hit the children. The mother’s explanation for this call seemed implausible. However, as the father was surreptitiously recording the call, it is possible that he was trying to have the mother make an admission that he could then use against her.

[75] As the audio tape was not admitted into evidence, there is no corroboration of the fact that the mother bit H.S. on this occasion. The mother denied that she did this. The maternal grandmother testified and was cross-examined and she denied that she had ever seen the mother hit or bite the children or otherwise physically hurt the children. I do not find that the mother’s evidence regarding this incident does not impact her credibility.

[76] Overall, while there may be some exaggerations and embellishments in her affidavit, she testified in a straightforward manner. I found her to be credible witness.

[77] However, any issues that are raised regarding the mother’s lack of credibility pales by comparison to the father’s evidence.

[78] The father was not a credible or reliable witness. He minimizes his behaviour, does not provide plausible explanations, or blames others and makes many false statements. Some examples are:

i) The father testified that he did not go to court after the separation in October 2019 as he believed the mother who told him in Canada, children remain in the care of the mother. However, he told a society worker shortly after the separation that he was consulting with a lawyer. Further, if the mother is cognitively delayed as he alleged why would he accept her understanding of the legal process.

ii) The father made many allegations with respect to the mother’s inability to care for the children and her physically abusing them, yet he offered no plausible explanation as to why he was content to leave the children in the primary care of the mother.

iii) The father did not initially comply with the court order of November 19, 2021, to deposit the passports of the children and all of his passports and had to again be ordered to do so on December 21, 2021.

iv) The father alleged that he paid child support or otherwise assisted the mother but provided no evidence that he paid any child support from the date of separation in October 2019 until he eventually consented to do so on March 16, 2022.

v) The mother continued to pay the father rent after the separation as only his name was on the lease. The father did not advise the mother that he terminated the lease thereby leaving her and the children homeless. The father did not offer any explanation as to his actions. The father did not abide by a disclosure order to produce the notice for the termination of the lease. The mother paid the father rent for July 2021, but the lease had already been terminated. The father testified that he could not recall if he ever returned those funds to the mother. The mother deposed that he never returned the funds to her.

vi) The father applied for the Canada Tax Benefit in April 2021 and continued to receive those funds until January 2022 by alleging that he had the children in his primary care knowing that was simply not true. He thereby deprived the mother, who he knew was only in receipt of Ontario Works, with funds to meet the needs of the children. The mother was unaware he had made this claim and never consented to him doing so.

vii) On October 18, 2019, the father made allegations to the children’s daycare that the mother physically hurt H.S. by providing the daycare with a photograph, not of any recent injury, but of a historic event. The father was aware that this alleged injury had already been investigated by the society. The father was aware that it had been deemed not to be verified.

viii) On September 17, 2021, when he refused to return the children to the mother after a prearranged day visit, he told a society worker that he had commenced a court proceeding and his counsel sent a letter to the mother and the daycare stating this fact. However, the father did not start any proceeding for several weeks later and then did not serve the mother and simply kept the children.

ix) As of September 17, 2021, the father did not take H.S. to her school as he was afraid the mother would try to have H.S. returned to her care. The father told a society worker that he had registered H.S. in another school, but he neglected to tell the worker that he did not intend to let H.S. go to school until the case was in court on January 10, 2022. The father would not return the calls from the principal of the H.S.’s school or the mother’s calls about the school’s concerns that H.S. was not attending school.

x) In September 2021, the father registered D.S. for daycare and did not even list the mother as a parent or provide her contact information. He advised the daycare that he had commenced a court proceeding, that was not true, and instructed the daycare not to permit the mother to attend the daycare to see the child.

xi) In October 2021, the father advised a CAS worker that he had custody of the children knowing this was not true.

xii) The father told the CAS worker that the mother was incapable of doing any parenting and alleged that he was the parent that met all their needs including picking up and dropping off the children at daycare. However, the daycare supervisor told the CAS worker that the mother was picking up and dropping off the children. Further, since the father at times worked two jobs and worked on weekends his allegations that he did all the parenting is not plausible.

xiii) The father’s evidence regarding his employment history and financial circumstances was vague and causes the court to question the veracity of some of his other evidence on other issues.

[79] Where there is a conflict between the parties’ version of events, I accept the mother’s evidence as being more credible than the father. Despite the fact that the maternal grandmother, the mother aunt and uncle are not neutral witnesses, I found their evidence to be credible. They answered questions in a straightforward manner and were not shaken in cross-examination.

5. Statutory provisions with respect to parenting

[80] Any proceeding regarding children is determined in accordance with the best interests of the particular child before the court.

[81] Subsection 24 (2) of the Children’s Law Reform Act (CLRA) 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.

[82] Subsection 24 (3) of the CLRA sets out a list of factors that a court should consider related to the circumstances of the child. It provides as follows:

Factors

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

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

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

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

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

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

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

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

[83] In considering a child’s best interests, subsection 24 (4) of the CLRA sets out a list of factors for the court to consider related to family violence. It provides 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.

[84] The amendments to the CLRA have provided a much more comprehensive definition of family violence and assist the court and litigants in understanding what behaviours are included in the definition of family violence.

[85] Sections 18 (1) and (2) of the CLRA provides as follows:

(1) “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;

“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.

[86] Subsection 33.1 (2) of the CLRA addresses the importance of parties protecting children from conflict. It provides 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.

[87] In considering which parent is best able to meet the needs of these children, the court has considered all of the factors outlined in the legislation. While the list of best interests factors in the CLRA is not exhaustive it assists the court in organizing and considering the evidence.

[88] I outline my findings of fact in accordance with these best interests’ factors and any other considerations that are relevant in determining what parenting orders are in the best interests of these children.

[89] I have relied on the evidence of the mother, except where indicated, and her witnesses and any documentary evidence that corroborates either parties’ version of events.

6. Analysis of best interests factors as related to primary residence and decision-making responsibilities

6.1 The children’s physical, emotional and psychological safety, security and well-being

[90] I find that the mother has met the needs of the children.

[91] There is an admission in the CAS notes by the mother that on July 11, 2019, she used physical discipline with H.S. in the past but that she only lightly slapped her hand and did not use excessive force.

[92] Despite a verification of the use of physical discipline, the file was closed as the CAS assessed that the mother understood the concerns about the use of physical discipline. Also, the father reported to the CAS later in July and again in September 2019 that things were going well and the mother was not hitting the children.

[93] The mother did not agree with this July 11^th^ note by the society and subsequently denied any use of physical discipline. I have considered that the mother and father were interviewed together and it was only after the father intervened that the mother made the admission. In view of the clear power imbalance between the parties, it is possible that the mother may have been intimidated by the father into making this admission.

[94] The father continues to rely on this admission and verification by the CAS, as proof that the mother is an unfit parent and hits the children.

[95] Even if I accept that the mother historically used physical discipline, I find that it does not impact on her present ability to parent the children. More importantly however, despite many further allegations by the father, there have been no other verifications of the use of physical discipline by the mother by the society or any other professional.

[96] The father has caused at least 7 different investigations to be made regarding his allegations that the mother is abusing the children. Despite the lack of verification, the

[97] father has persisted in repeating these allegations thereby causing the mother and children to be interviewed multiple times. The father often makes the allegations afterhours and when there is an allegation of an injury to a child, an after-hours worker has had to attend at the mother’s home to investigate. Besides making complaints to the CAS worker assigned to the family, he has also made complaints to the Manager of Client Services and the Ministry of Children and Community Social Services.

[98] The father was aware or should have been aware that such investigations are stressful to the mother and impact her physical health due to her epilepsy and her mental health due to her diagnosis of depression.

[99] The mother has made allegations that the father is the parent who has yelled at the children, hit the children, and fought with her in the presence of the children. I find the mother’s allegations to be truthful given the specifics and details she has provided.

[100] I find that the mother since the birth of the children has been their primary parent and since separation has continued in that role. She has provided the children with stability which is important for the children’s emotional and psychological well-being and security. The father, on the other hand, removed the children from the care of the mother in September 2019 and deprived the mother of contact with them, except for some limited virtual contact. He also kept the older daughter out of school. If not for the urgent motion brought by the mother on November 25^th^, 2021, and the court order for the children to be returned to the mother, his plan was to remove the mother from the lives of children until January 10, 2022, that was the first scheduled court date. His actions indicate a total lack of appreciation for the emotional and psychological well-being of the children.

[101] The father alleges that the mother is mentally ill and cognitively delayed and therefore cannot meet the needs of the children.

[102] The mother did have a serious mental health break-down that required her hospitalization from May 27, 2021 to July 26, 2021. Based on the mother’s evidence that I accept, the father exacerbated this break-down.

[103] The mother filed a report of her psychiatrist Dr. Maraj dated October 6, 2021, that the mother was treated for a major depressive disorder with psychotic features. She was treated with anti-depressant and anti-psychotic medications and her symptoms resolved. She was seen on a follow up appointment on September 28, 2021. Dr. Maraj assessed that the mother was compliant with her medications and was no longer experiencing symptoms of depression or psychosis. In coming to this conclusion. Dr. Maraj met with the mother, spoke to the maternal family, the family doctor, and the school staff.

[104] Dr. Maraj concludes that the mother is capable of providing adequate care for her children. She states that having a diagnosis of depression does not inherently mean that someone is incapable of caring for minor children. Further, with medication, the mother no longer has symptoms that impede her ability to care for the children or herself. Dr. Maraj further concludes that under the care of the mother, the children are appropriately cared for and with the additional support of the maternal family the children have a solid safety net.

[105] The mother also provided a report of Dr. Vincent dated November 11, 2021, who is providing the mother with out-patient psychiatric care following her hospital admission. Dr. Vincent states that the mother’s psychiatric condition is stable and her major depressive disorder is in full remission. Based on her assessment, there is no evidence that the mother is unable to care for herself or her children. Dr. Vincent states that the mother is engaged in psychiatric care and understands the importance of continuing to adhere to her medications that greatly increases the likelihood that she will remain stable.

[106] The medical evidence tendered on behalf of the mother is undisputed. There is no evidence that since July 2021 that have been any further concerns about the mother’s mental health impacting her ability to meet the needs of the children.

[107] I draw an adverse inference against the father in that he chose not to require these doctors to be called as witnesses for cross-examination but instead chose to rely on Dr. Lindsay’s medical notes from 2008 and 2011 as proof that the mother is non-compliant with her epilepsy medications.

[108] The father in his trial affidavit references a “report” by the mother’s family doctor Dr. Devi Gangam dated April 18, 2019. Although referred to in his affidavit the “report” was not attached to his affidavit and not entered as an exhibit.

[109] Counsel for the mother quite properly submitted in her closing submissions that the “report” was not an exhibit and could not be relied upon. However, as this is such a vital part of the father’s case, I find that it is necessary to comment on this evidence.

[110] The “report” is a handwritten form to support the mother’s eligibility for child-care under a special needs category. The note states that the mother suffers from:

“...epilepsy, anxiety, depression, cognitive-below normal - needs more time to follow instructions gets anxious which makes her have seizures…She doesn’t follow instructions very well-attended special school in childhood. Mental function- to be below normal…Husband and mother come to help her with the children after school…she cannot on her own take care of the children…she gets anxious and depressed which causes the epileptic attacks. It takes several hours to go back to normal state.”

[111] Even if this note had been admitted into evidence, the court would not have placed any weight on it. As indicated, there was no proper Evidence Act notice, parts are illegible and the father is asking the court to rely on his interpretation of the handwriting. The court takes into consideration that the parties were living together at the time and the mother deposed that the father put pressure on her to apply for funding as a disabled person. Most importantly I again draw an adverse inference as the father did not require that the doctor be called as a witness. The father even testified that he has complained to the College of Physicians and Surgeons about Dr. Devi Gangam.

[112] It should also be noted that the mother and children continue to be seen by Dr. Devi Gangam, who has not raised any concerns about the mother’s care of the children. The mother has been under the scrutiny of the CAS, the children are in daycare and school and have been seen regularly by several doctors and no one has raised any concerns about her ability to meet the needs of the children.

[113] The mother provided records that substantiate that she has met all of the medical and dental needs of the children. H.S. was also seen by an optometrist and the mother obtained prescription eyeglasses for H.S. as recommended.

[114] The only concern raised about the care of the children relates to the father. Dr. Devi Gangam noted that when she examined H.S. on November 20^th^, 2021, after being in the care of her father for a couple of months, she had a rash on both sides of her thighs.

[115] I therefore find the mother has met all of the children’s needs and has the ability to continue to meet those needs.

[116] The father is not only unable to provide the children with the stability they required but he fails to acknowledge that his actions have caused turmoil in the children’s lives. He has no insight into the impact that his actions have had on the emotional and psychological well-being of the children.

6.2 The children’s needs, given the children’s ages and stage of development, such as the children’s need for stability

[117] The children are now 6 and 3 years old and require a parent that can provide them with stability, structure, predictability and ensure that they develop to the best of their capabilities. The children require a parent that can ensure they attend school and daycare regularly, socialize with friends and family and engage in appropriate activities.

[118] The mother has ensured H.S. attends school and her attendance record was filed. D.S. is also attending daycare regularly. The mother has maintained stable housing for the children, after the father terminated the lease on the matrimonial apartment.

[119] The mother is now living in a one-bedroom apartment and is on a wait list for a 2 bedroom. The maternal grandmother is now residing with her in accordance with the terms of the temporary order. The mother resides in the same building as her older sister and her husband and their 4 children and has their support.

[120] The father showed a total disregard for the need for stability for the children by terminating the apartment lease without notice to the mother. The mother and children were left with nowhere to live, if not for the paternal uncle providing them with temporary accommodations.

[121] The father failed to ensure H.S. attended school for several months and would not respond to the mother or calls from the school about her absences. He did this with a total disregard for the impact on H.S. and did it to ensure that the mother would not attend at the school and cause H.S. to be returned to her care.

[122] The mother has a routine and structure for the children. She takes the children to school and daycare and picks them up. After eating dinner, H.S. does her homework and the children have time to them play and spend time with their cousins. The mother describes that H.S. loves school, does well, has friends and is a classroom leader.

[123] D.S. started a new daycare in September 2022. After an initial adjustment D.S. is now happy and starting to speak both English and a bit of Farsi. The mother explained that she did not take her back to the daycare that the father had registered in as the father made false allegations to the daycare staff and that the staff would not let her see D.S. in September 2021 despite being aware that she was their mother.

[124] Both children are now attending the same daycare.

[125] The mother supports the children with the monthly Child Tax Benefit payments of $1,384.56 and Ontario works of $1,265. As of June 1, 2022, she has received monthly child support of $555.22.

[126] The father provided no evidence regarding his accommodations. He provided no evidence as to his routine when the children were in his care from September to November 2021. The mother alleges that when H.S. was returned to her, she was very dirty, she and her clothing smelt and there was dried urine in her pants. She complained of a rash. The mother applied rash cream and took her to see Dr. Devi Gangam the next day. Dr. Devi Gangam confirmed in a report filed that H.S. had a rash on her thighs.

[127] The mother deposed that on the night they were returned that D.S. was terrified and slept the entire night in her arms. Both children would not eat the food the mother prepared but wanted to eat food from McDonalds, Popeyes and other fast-food chains.

6.2 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 children’s lives

[128] The mother has been the primary parent since both children’s birth and the children have a close and loving relationship with her and with each other. The children also have a close and loving relationship with their maternal grandmother and their maternal aunt and uncles. The undisputed evidence is that the maternal family is very supportive of the mother and help her with the care of the children as needed.

[129] I accept the evidence of the mother and the maternal grandmother and aunt that prior to the separation the father spent some limited time with the children due to his employment and time he spent away from the home.

[130] After the separation, according to the mother, from October 19, 2019 to May 2021, the mother agreed that the father see H.S. once a week on Wednesdays for 2 hours. He mostly only took H.S., as he claimed it was too hard for him to also care for D.S. as she was messy and he couldn’t change her diaper. He also sometimes saw the children at other times.

[131] While the mother was in the hospital, the father would take both children whenever the maternal grandmother was visiting the mother. The maternal grandmother and maternal aunt corroborated this evidence.

[132] The father deposes that the mother would not let him see the children from October 18, 2019 to the end of January 2020. However, if the mother was preventing the father from seeing the children and in view of his many concerns about her abuse of the children and her inability to care for them, he does not explain why he would have not taken any legal steps for the children to be in his care.

[133] In the father’s affidavit he explains that as they were family he did not want to “air out our family disputes.” In his oral evidence he stated that he believed the mother that children are left with the mother in the Canadian legal system. Either explanation is not credible. Further, if he truly believed the mother was abusing the children then he was not protective of the children.

[134] During the time the children were in his care from September to November 2019, the Children's Aid Society of Toronto did attend his home and raised no concerns about his care of the children. In paragraph 62 of the father’s affidavit, he quotes from that note where the worker offers opinions about the father and his relationship with the children. I agreed with the objections of the mother’s counsel that the statements were opinion evidence and not properly admissible in a business record. If the father wished to rely on the opinions of the society worker, the worker should have been called as a witness.

[135] The father has been exercising supervised parenting time and the notes of Brayden Supervision Services and APCO notes were admitted as exhibits. Based on the notes, the father and children appear to enjoy the time they spend together. Mostly, the children are excited to see the father, enjoy their time together and at times have asked to go to his home or asked to stay longer at the visit.

[136] Despite the mother’s misguided comments about the father not loving the children or them not wishing to spend time with him, I find that the father and children have a warm and loving relationship with each other.

[137] The father presented no evidence of the children’s relationship with any of his family. At the trial management conference, the father indicated that he intended to call his mother and sister as witnesses. The father testified that his mother and sister are now in Canada. It was not clear if they were just visiting from Germany or planning to live here. I draw an adverse inference from the father did not call them as witnesses. As a result, there is no evidence as to their relationship with the children or what assistance they can offer the father.

[138] I find that the children’s relationship is strongest with the mother and the maternal family.

6.3 Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent

[139] Unfortunately for these children, I find that neither parent is willing to support their relationship with the other parent.

[140] Although it is understandable from the mother’s perspective as to why she is unable to accept the children’s relationship with their father given his relentless attacks on her ability to care for the children, his past abuse of her and the children and his past conduct in removing the children from her care, such an attitude is not in the best interests of the children.

[141] To the credit of the mother despite her negative attitude towards the father, she has complied with the order for the father’s parenting time. She also arranged parenting time for the father after the separation and prior to the court proceedings.

[142] The father is unable to say anything positive about the mother. His unwarranted removal of the children from her care in September 2021 and his refusal to permit the mother any meaningful contact with the children while they were in his care is an indication of his attitude regarding the mother’s relationship with the children. He does not value or respect the mother and has done everything in his means to disrupt and interfere with the relationship between the mother and the children by continuing to make baseless allegations.

[143] On December 19, 2019, the CAS sent letters to both parties advising them that the father’s allegations had not been verified but recommended that they both attend a program through Families in Transitions to improve their ability to parent as separated parents. Neither parent followed this recommendation. I find that it would be helpful for them to do so and I will make that order.

6.5 History of care

[144] The mother has been the primary parent since the children were born. The children have continued to be in her primary care since the separation on October 19, 2019, except for the couple of months when she was in the hospital and for the couple of months when the father removed the children into his care.

[145] I find that the father has exaggerated the time he spent with the children prior to and after the separation.

[146] The father in his trial affidavit alleges that marital life with the mother was a daily struggle and that besides working two jobs, he had to remind the mother to take her medication, prepare food for her, do her laundry, clean the house, and do the shopping. He deposes that the mother was “completely incapable of performing any basic task.”

[147] After H.S. was born the father deposes that he not only worked two jobs but also took care of the baby and did all the household tasks. When D.S. was born, he continued to also be her primary parent and also continued to care for the mother and the household.

[148] The father further deposes that every day he dressed the children, fed them breakfast, and then dropped them off and picked them up at daycare. He then took them home, prepared dinner and prepared them for bed. The father alleges that he would take them to all their medical appointments and anywhere else they needed to go.

[149] I find none of this evidence to be credible. The father did not provide any evidence from the daycare, school, or doctors to substantiate his role in the children’s lives. Despite numerous investigations by the CAS, the mother has been found to be the parent that cared for the children and found to be perfectly capable of meeting their needs.

6.6 The Children’s views and preferences

[150] In view of the young ages of the children, this is not a relevant factor.

6.7 The children’s cultural, linguistic, religious and spiritual upbringing and heritage

[151] Neither party presented evidence on this issue. As the parents are related, I assume that there are no religious or cultural differences between them.

[152] The mother did depose that the children are speaking a few words in Farsi so there is some evidence that the mother is exposing the children to their heritage.

6.8 Plans for the care of the children

[153] The mother’s plan is essentially to continue with the status quo. The children would continue to live in their current apartment, maintain their current routines, attend the same school and daycare, and receive medical and dental care from their current providers. The mother would continue to have the support of her family.

[154] The father provided no plan of care in either his affidavit or oral testimony. The court is not aware of the father’s current accommodations or his plans with respect to the children’s schooling or medical and dental care.

[155] The only evidence the father provided was that as he is self-employed with Uber and he can work whenever he wishes.

6.9 The ability and willingness of each person in respect of whom the order to care for and meet the needs of the children

[156] The mother has proven that she is able to care for and meet the needs of both children.

[157] The father could not point to any decision made by the mother that was inappropriate or not in the children’s best interests.

[158] The father continues to allege the mother is mentally ill, cognitively delayed, and abusive to the children. He will not accept the results of any society investigation that does not substantivate his concerns.

[159] Although the father’s parenting time has been quite limited, I find that during his supervised parenting time the father is able to meet the instrumental needs of the children and is able to engage in activities with them.

[160] However, the father’s questioning of the children and his allegations that result in multiple investigations and interviews with the children suggest that he does not understand the emotional needs of the children or the impact of his conduct on the children.

[161] Accordingly, I find that the father cannot meet the emotional and psychological needs of the children. I find that there is insufficient evidence to even determine if the father understands those needs.

6.10 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 children

[162] I find that neither party has the ability or willingness at this time to effectively communicate or co-operate with each other.

[163] The parties were able to work co-operatively from their separation in October 2019 until the father’s actions in September 2021, at least with respect to arranging parenting time.

[164] However, the father’s appalling behaviour has made any prospect for co-operation at this time almost impossible. The mother is unable to cooperate or trust the father due to him improperly obtaining the Canada Tax Benefit from April 2021 to January 2022, terminating the apartment lease in July 2019 without advising her, removing the children from her care, making baseless allegations, and surreptitiously recording her and then attempting to use those recordings in these proceedings and in his dealings with the society. The mother’s distrust of the father is now heightened when it became clear that the transcripts of those recordings that the father attempted to rely upon and that he quoted extensively in his affidavit were not accurate.

[165] I have concerns about both parties’ inability to say anything positive about the other party.

[166] The mother would not admit that the father loved the children, or that the children wanted to spend time with him and would not accept the positive observations made by the neutral third-party supervisors of the visits of the father with the children.

[167] The father would not agree that there was anything positive to say about the mother.

[168] If the father changes his behaviour, it is possible that with some professional assistance the parties can develop the skills to learn to communicate and cooperate and develop a more positive relationship.

[169] In December 2019, the CAS worker recommended that both parties attend a program through the Families in Transition to assist parents reduce conflict and create healthier post separation parenting relationships. Neither parent followed up on this recommendation. I intend to make this part of the court order as it may assist the parties and ultimately the children.

6.11 Family Violence

[170] The mother has alleged the father engaged in family violence against herself and the children in the form of physical, emotional abuse and engaged in coercive and controlling behaviour.

[171] The full extent of this violence was not reported to the police, her doctor, or the society. There is no corroborating evidence except for a photograph that shows the mother with a patch over her eye. The mother testified that she told her doctor that her daughter poked her in the eye whereas in truth in was the father who infected the injury.

[172] Counsel for the father submits that this lack of reporting is proof that the mother is not telling the truth as for example, she was alone in the doctor’s office and could have reported what happened.

[173] The mother did report to the police on July 28, 2019, that the father had threatened to take the children back to Afghanistan and then to Germany to visit his family. The mother reported that the father stated that Afghanistan is a “man run country” and he could do whatever he wanted to and she could not stop him. The mother did not report any allegations of assaults or threats but the police office gave the mother a domestic violence brochure as well as spoke to her about safety planning and expanding her social network.

[174] The amendments to the CLRA have expanded the definition of family violence and increased its importance in assessing the best interests of a child. Family violence is often hard to prove as it takes place in private generally with no witnesses.

[175] There are many reasons that such violence is not reported to the police or other authorities especially when it does not involve physical violence but consists of coercive and controlling behaviour and involves verbal and emotional abuse or financial abuse.

[176] As pointed out by the Supreme Court of Canada, in the case of Barendregi v. Grebliunas 2022 SCC 22 at paragraphs 143-146:

[143] The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497.

[144] Domestic violence allegations are notoriously difficult to prove: P. G. Jaffe, C. V. Crooks and N. Bala, “A Framework for Addressing Allegations of Domestic Violence in Child Custody Disputes” (2009), 6 J. Child Custody 169, at p. 175; A. M. Bailey, “Prioritizing Child Safety as the Prime Best-Interest Factor” (2013), 47 Fam. L.Q. 35, at pp. 44-45. As the interveners West Coast LEAF Association and Rise Women’s Legal Centre point out, family violence often takes place behind closed doors and may lack corroborating evidence: see S. B. Boyd and R. Lindy, “Violence Against Women and the B.C. Family Law Act: Early Jurisprudence” (2016), 35 C.F.L.Q. 101, at p. 115. Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support.

[145] The prospect that such findings could be unnecessarily relitigated on appeal will only deter abuse survivors from coming forward. And as it stands, the evidence shows that most family violence goes unreported: L. C. Neilson, Responding to Domestic Violence in Family Law, Civil Protection & Child Protection Cases (2^nd^) 2020), 2017 CanLIIDocs 2 (online), at c. 4.5.2.

[146] The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis: s. 16(3)(j) and (4). The Divorce Act broadly defines family violence in s. 2(1) to include any violent or threatening conduct, ranging from physical abuse to psychological and financial abuse. Courts must consider family violence and its impact on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child.

[177] I find credible the allegations of family violence made by the mother in her trial affidavit that were not diminished in cross-examination. Some examples are as follows:

i) When the parties moved into their own apartment in 2016, the father began to control the mother. He would restrict the time she spent with her family, tell her who she could invite to their home and when she could go out. He restricted her from speaking to male family members, He would not let her go shopping and bought her clothes. When he was out, he would call to check up on her to see if she was home.

ii) The father told the mother that he was a security guard which is like a police officer and he could do what he wanted. He threatened to take the children to Germany or take them to Afghanistan.

iii) He hit her multiple times when she was pregnant.

iv) The father ripped a necklace he had given her off her neck. He broke her laptop and restricted her use of social media.

v) When she prepared food for him, after yelling at her, he would fling the food at the wall or on the floor and continue shouting. At times he would throw the food in the trash or dump it on the table. He insisted that he be fed before the children. When asked by the CAS worker about any specific complaints about the mother, he complained that she did not know how to cook.

vi) The father told her if she ever told anyone about the abuse, he’d “know what to do with you”.

vii) When H.S. was born there were ongoing arguments. The mother told him that she needed a bed and the father told her that H.S. could sleep on the floor.

viii) On another occasion, H.S. was sitting beside him on the sofa when she vomited, the father pushed her away and walked out of the apartment in disgust.

ix) Another time, the parties were in the elevator, H.S. was saying “daddy daddy” when the father shouted “what” and then pushed her and she fell to the ground.

x) Once, the parties went together to pick up H.S. as the daycare staff called to say she was ill. The mother wanted the father to take them to a walk-in clinic. The father screamed and told the mother that she can’t tell him what to do and that he was the one to make decisions about if the children needed to see a doctor. He then told her, “If you ever ask me again, I will crash the car, killing you and your kids.”

xi) One day H.S. did not want to go to daycare. The father grabbed her and pushed her into the car seat and shook her and shouted for her to sit down.

xii) They argued because the father felt it was permissible to leave H.S. locked in the car when they went into the store.

xiii) The father would get angry and irritated when the children cried, were being loud or left a mess and over other little things. He screamed and shouted at the mother and the children. The behaviour continued and when H.S. was about 1 year old he began to hit her and H.S. He generally shook them when he was angry as he did not want to leave a mark on them.

xiv) Prior to the separation, the father began to pressure the mother to stop taking her epilepsy medication by telling her it was poison. The medication helped to regulate her stress so that she does not have seizures due to stress. The mother began to have more seizures once she began to live with the father.

xv) The father tried to pressure the mother to go to the doctor to try and qualify for a disability payment, He told her to exaggerate her symptoms and conditions. When she refused, he yelled and beat her up.

xvi) When they were registering H.S. for daycare, the father would not let the mother speak and insisted on filling in the forms. Although the father did not generally accompany the mother on medical appointments, when he did attend, he would not let the mother speak.

xvii) The father’s practice of surreptitiously recording the mother could only have been done to intimidate and pressure the mother and not, as alleged by the father for the best interests of the children.

xviii) On October 19, 2019, the date of separation, the father hit, punched, pulled the mother’s hair, and choked her. He beat H.S. and slapped her face. The father left the apartment when the mother told him she was calling the police

xix) After the separation, the father who had a key to the apartment, would show up without an invitation and threaten and harass her. He would call her crazy and tell her she was not normal because she has epilepsy. The mother could not change the locks as only the father was on the lease. The mother was offered a new lease but at a higher rent that she could not afford.

xx) Leading up to her hospitalization, the father threatened her that if she went to sleep, he was going to kill her and people would think she died of a seizure. She became so scared that she did not sleep for days and she had stopped taking her epilepsy medication. She began to have auditory hallucinations and to believe that people were harassing her and using her epilepsy against her.

xxi) The father obtained the mother’s confidential medical records without her consent or knowledge. This invasion of the mother’s privacy is particularly abhorrent.

[178] Since the separation, the father has made numerous allegations against the mother that resulted in CAS investigations and unannounced visits by a CAS worker. At times these visits took place in the evening and the children were undressed due to allegations of physical injuries. In the case of K.M. v. J.R. 2022 ONSC 111 the court found that unwarranted calls to authorities was a form of psychological abuse.

[179] The father also was financially abusive to the mother. Some examples are as follows:

i) The mother did not know where or when the father was working or how much he earned.

ii) The father convinced the mother to transfer her RRSP of $7,136.68 to him that she had saved when she worked for the Afghan Women’s Organization.

iii) While they resided together the father would constantly pressure the mother to give him the Canada Tax Benefits payments she received for the children.

iv) After the separation and despite the children being in the full-time care of the mother, the father applied for and received the Canada Tax Benefits thereby causing the mother and the children financial hardship.

v) The father did not provide the mother with any child support from October 2019, the date of separation, until the court order of March 16, 2022. On a temporary without prejudice basis that order commenced on December 1. 2021.

[180] The father makes many allegations against the mother and deposes that he became accustomed to the mother being physically abusive to him and she would frequently physically attack him usually causing superficial injuries.

[181] The father stated that he has been surreptitiously recording the mother since 2015. He would record her as she always threatened to have him thrown in jail if she wasn’t happy with him and he took these threats seriously. He also stated that he made the recordings as he felt they were in the best interests of the children.

[182] I intend to outline some of the allegations made by the father so that it is clear to him that I have considered his allegations but found them not to be credible.

[183] The father makes the following allegations of family violence against the mother:

i) On April 16, 2019, the father was getting H.S. ready for daycare and the mother physically dragged H.S. out of the house because she was crying. When he brought H.S. back the mother continued to yell at him, threatening to ruin his life and that all of this went on while H.S. was crying.

ii) In May 2019, the mother bit H.S. as a punishment for H.S. biting her younger sister.

iii) On June 24, 2019, H.S. accidentally poked the mother in the eye. The mother became frustrated and grabbed H.S. by the hair, shook her hard and eventually slapped her across the face. The father intervened and the mother left the room but kicked H.S. while she was on the ground.

iv) In August 2019, the father returned from work and found H.S. lying on the bedroom floor half asleep with dried tears on her face and a red cheek. The father alleges the mother admitted that she lost her temper and slapped H.S.

v) In October 2019, the mother became upset because H.S. again injured her eye. In response the mother yelled at H.S., grabbed her hair with one hand and slapped H.S. across the face with her other hand. The father states he intervened. This is the same incident where the mother alleges the father caused her injury.

[184] With respect to all these incidents, the father alleged he had audio recordings and quoted extensively from the transcripts in his affidavit. As previously indicated the audio recordings and transcripts were not admitted into evidence after some of the recordings being played in court and upon the father’s counsel indicating that he was not pursuing their admissibility. I draw an adverse inference from the fact the audio recordings and transcripts did not corroborate the written narrative deposed by the father.

[185] Almost all these incidents were reported to the CAS and not verified.

[186] The father also alleged another incident in September 2019, the mother hit D.S. on the head with a baby bottle and caused a bruise that he took a photograph of. The photograph was not made an exhibit.

[187] I find the father’s allegations baseless. Given the obvious power imbalance between the parties, it is not credible that the father would have been intimidated by any threats made by the mother. Further, if the mother did abuse the children, it is not credible that the father would have left the children with the mother after the separation and not have commenced legal proceedings to ensure that the children were placed in his care at the time of the separation. Even when the mother was hospitalized, the father was content that the children remain with the maternal grandmother instead of with himself.

6.12 Conclusion regarding decision-making responsibilities and primary care

[188] Based on an analysis of the best interests factors, I find that it is in the best interests of the children to remain in the primary residence of the mother.

[189] The temporary order of December 21, 2021 required the maternal grandmother to reside with the mother and children. This order was made only about 6 months after the mother had been released from the hospital and out of an abundance of caution.

[190] Since that time the mother has continued to be the primary caregiver of the children without any concerning incidents. She has continued to be under the care of her doctors and is compliant with her medications. The maternal grandmother testified that although she has been present, the mother has been the primary caregiver of the children.

[191] The maternal grandmother and the rest of the maternal family are very supportive of the mother and when they noted concerns about her mental health, they arranged for the mother to see her doctor and be admitted into the hospital. I find that they will be vigilant and supportive of the mother whether or not the maternal grandmother continues to live with the mother. The maternal family can be entrusted to act in ways that are protective of the children.

[192] Based on my findings, I see no need for a formal order that the maternal grandmother continue to reside with the mother and the children.

[193] Both parties have requested sole decision-making responsibilities. Based on the findings of fact and the consideration of the best interests of the children, the mother shall have sole decision-making responsibilities.

[194] The evidence is overwhelming that the mother has acted in the best interests of the children. She has made appropriate decisions for the children and met all their needs.

[195] Given the father’s controlling and coercive behaviour and the power imbalance between the parties, this is not an appropriate situation where the mother should be required to consult with the father about any decision she makes. The mother will be required to advise the father in writing or have a third party advise him of any major decision she makes about the children.

[196] The court is concerned that if the mother is required to obtain the father’s consent he would use a consent requirement to frustrate the mother’s ability to obtain important government documents or travel with the children outside of Canada. This would not be in the children best interests.

[197] According there will be an order that the mother is not required to obtain the father’s consent to obtain government documents.

[198] The mother will also be permitted to travel with the children without the prior written consent of the father.

[199] The mother also seeks orders to prevent the father from eliciting information from the children and speaking negatively about her or the maternal family. The mother is properly concerned that the father uses his parenting time to solicit information from the children about what is occurring in the mother’s home and takes photos or videos to try to substantiate any allegations he makes. She is concerned that the father will continue to find ways to obtain her medical information or use the CAS notes and his audio recordings produced in this trial.

[200] Section 28 (1) (b) and (c) of the CLRA provides a court with broad discretion to determine any aspect of the incidents of the right to decision-making responsibilities and parenting time and make orders that the court deems are necessary and proper. In particular, subsection (c ) (iii) enables a court to prohibit a party from engaging in specified conduct in the presence of a child.

[201] The orders requested by the mother are necessary and appropriate in the circumstances of this case with some modifications. For example, mother seeks a total prohibition of the father taking any photos or videos of the children during his parenting time. Although again based on the father’s conduct her concern is that he will use photos and video to undermine her parenting and continue to make complaints about her, this is a very restrictive provision and would prevent the father from simply taking innocuous photos or videos.

[202] Counsel for the mother provided a draft Order with the conduct provisions she is seeking that is helpful and will be ordered with some revisions.

7. Parenting time

[203] The mother is requesting that the father continue to have supervised parenting time.

[204] The father is seeking an order for unsupervised parenting time. He is requesting, if the children are not placed in his primary care, that the children are with both parents on a week about schedule or a 2-2-3 schedule. It is submitted on behalf of the father that he is no basis for a continuation of supervised parenting time.

7.1 Applicable legal principles regarding parenting time

[205] In determining parenting time, the court must consider the relevant best interests considerations contained in subsections 24 (2) to (4) of the CLRA as previously outlined.

[206] Subsection 24 (6) of the CLRA states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

[207] The Ontario Court of Appeal in Knapp v. Knapp, 2021 ONCA 305, held that there is no presumption that maximum parenting time equates with equal-parenting time. Every family, it wrote, is different and the court must focus on the child’s best interests in determining the appropriate parenting time order.

[208] In the subsequent case of O'Brien v. Chuluunbaatar, 2021 ONCA 555, the court noted at paragraph 49 that the maximum contact principle has been replaced by subsection 24 (6) of the CLRA. The Supreme Court of Canada in Baredregt v. Grebliunis, supra, endorsed the same principle.

[209] In this case, the father has not even exercised overnight parenting time except for the few months when he removed the children from the care of the mother. His request for a week about or a 2-2-3 parenting arrangement is not based on any realistic history of his care the children or an understanding of the needs of the children.

[210] In seeking supervised parenting time, the onus is on the mother to establish that an order for supervised parenting time is in the children’s best interests. There is a presumption that regular access by a non-custodial parent is in the best interests of children. The right of a child to visit with a non-custodial parent, to know and maintain or from an attachment to a non-custodial parent is a fundamental right and should only be forfeited in the most extreme and unusual circumstances. To deny access to a parent is a remedy of last resort. See Jafari v. Dadar [1996] N.B.J. No. 387(QL); V.S.J. v. L.J.G. 2004 CanLII 17126 (OSJ).

[211] In the case of R.L.C. v. J.T. 2012 ONCJ 599 at para. 8, Justice Ellen Murray summarized the case law regarding when it is appropriate to order supervised parenting time as follows:

“A court may order supervised access when a child would be placed at risk of harm (physical or psychological) or of abduction. Supervised access, particularly when it must be exercised in an institutional setting, has many limitations. Visits are usually relatively short (1-2 hours), not very frequent (weekly at most), and held in a confined space. Supervised access in the long term is usually not as enjoyable for the child or the parent as an access regime which allows them to go out into the community or to the parent’s residence. Courts usually contemplate supervised access as a temporary arrangement, which will terminate when the risk has been eliminated, or can be properly managed in a less restrictive manner.”

[212] In this case, the temporary order for parenting time, albeit requiring supervision was not restrictive. It permitted the father to exercise supervised parenting time for up to 6 hours to be supervised either by a private supervised service or APCO. While the time at APCO is restricted to only 1 to 2 hours, the time at Brayden Supervision Services that was used by the father is not restrictive. The father could have exercised his parenting time outside of the premises such as at a park, a community centre, library, a shopping mall or even his home.

[213] The father submits that he was limited by his financial resources. But if the father had worked full-time he would have had the financial resources to have longer and better visits for some of his allotted parenting time. The father’s mother has apparently loaned him money so he could have used those funds to help pay for some extended visits in a more natural and enjoyable environment.

[214] If he had done so, the court would be in a better position to assess his ability to care for the children for an extended amount of time.

[215] The father has also inappropriately used his parenting time to elicit information from the children about who is caring for them and regarding their home life. He has then used that information to make complains about the mother to the CAS.

[216] However, the biggest risk that to the father having unsupervised parenting time is the risk of abduction.

[217] I find the mother’s evidence credible that the father has made threats to abduct the children and that she takes those threats seriously. The mother previously reported those threats to the police.

[218] On the day of the separation, one of the reasons the parties fought was that the father wanted the mother to give him H.S.’s passport and she refused. The mother was naturally concerned that the father planned to abduct the child as there would be no other reason that he was insisting on obtaining her passport.

[219] The mother alleges that the father previously threatened that he would lock her out of the apartment and take the children and he followed through with those threats.

[220] The father has previously used self-help remedy and acted deviously to get what he wanted. The father does not act appropriately when he does not get his own way.

[221] For example, his anger and aggressive tone of voice were evident from the audio recording[^2] that was admitted into evidence after he found out that the mother had obtained the November 19, 2021 ex parte order that required him to return the children to the mother’s care.

[222] Although the father has now deposited his Canadian and expired Afghanistan passports with the court, the risk remains that he can obtain a new Afghanistan passport for himself and passports for the children. The father can obtain an Afghanistan passport for the children without the mother’s knowledge or consent and regardless of which parent has primary care or decision-making responsibilities. There is no place for even a mother’s signature on an application for a child’s Afghanistan passport. (Ex. 21).

[223] The Afghanistan government would not be bound by any order of this court that prohibited the father from obtaining a passport for the children or prohibiting him from removing the children from Ontario. No evidence was presented that even if not bound by a court order of this court that such an order would be respected and abided by.

[224] The father has no significant ties to Canada. His family resides in Germany or Afghanistan and his best friend resides in Turkey. The father is only working sporadically for Uber and he alleges he is earning less than minimum wage. He has previously threatened to remove the children.

[225] Counsel for the father submitted and provided case law that even when a parent has abducted a child, the courts have granted the abductor unsupervised parenting time.

[226] In the case of Najjardizaji v. Mehrjerdi 2004 ONCJ 374, the father had assets in Iran and lived a transitory lifestyle. The court recognized that there was a risk that if the father abducted the child to Iran, that is not a signatory to the Hague Convention, that the prospects of the child’s return would be slim. But, in that case, the father had been exercising unsupervised access without incident and the mother was not seeking to have his access supervised. Further, the risk could be mitigated by the father posting a cash bond that the court increased to $35,000. The case is distinguishable on the facts and the father in the case before me has not offered to post any bond.

[227] In the case of P.B. v. C.A.O. 2017 ONSC 5357, a mother who had previously abducted a child, been found guilty and who had served a custodial sentence, was granted supervised access, that by 2020 had transitioned to unsupervised access. However, the mother had been supportive of the father’s relationship with the child. The mother had also, through counselling, been able to recognize the effects of her actions on the child.

[228] In Timble v. Thwaites 2011 ONCJ 397, a mother who has moved a child to Calgary but then voluntarily returned was granted unsupervised access after exercising supervised access. This case is also distinguishable as the risk of abduction is diminished

[229] where the risk of abduction is to another province or a country that is a signatory to the Hague Convention.

[230] All the cases cited by father’s counsel rely on the same principles that are outlined above but turn on the specific facts of the case.

[231] In this case, I find that there is no order that the court can make at this time that would alleviate the risk that the father would abduct the children if he was granted unsupervised parenting time.

[232] I also find that there continues to be a risk of emotional harm to the children based on the father’s continued baseless allegations against the mother that would be heightened if he was permitted unsupervised parenting time at this time.

[233] I have also considered the father’s conduct since the temporary decision of Justice Sherr of December 21, 2021 that provided the father with a roadmap of what he needed to do to do to change that order and earn the trust of the court.

[234] The father deposes that he has proven that he has followed that roadmap that required that he comply with court orders, exercise parenting time consistently and responsibly, pay child support and rebate the child tax benefit to the mother.

[235] I find that the father has not complied with the court order. In particular, he has breached the terms of the restraining order.

[236] Although he has exercised his parenting time consistently, he has not acted responsibly. He has used his time to question the children about their care by the mother and question them about any minor marks or health issues they may have. He then uses whatever they say to make baseless and frivolous allegations to the CAS and the daycare that in turn causes the mother and children to be investigated.

[237] With respect to child support, he was able to pay off any arears that accumulated and is current. With respect to the child tax benefit, the government paid the mother the funds that were due to her. The father has not made any arrangements to repay the government the monies he inappropriately obtained.

[238] Counsel for the father submits that to continue to order supervised parenting time will not provide any finality to either parent or the children and will cause more litigation and further conflict. While that is regrettable, the risk at this time outweighs the detriment of further litigation. Any ongoing conflict can be eliminated if the father chooses to follow the order and change his behaviour.

[239] It may be that if the father is more supportive of the mother and changes his behaviour that trust can be developed between the parties and the mother’s and the court’s fears will be alleviated.

[240] It may be that with the passage of time and once the children are older, the mother may agree to the father exercising unsupervised parenting time without the intervention of the court. If not, the father will be required to convince a court that there has been a

[241] change in circumstances such that he has changed and that he can be trusted not to abduct the children and that the children are no longer at risk of physical or emotional harm because of his conduct.

[242] The onus will now be the father to demonstrate that he has made positive changes so that his parenting time can become unsupervised.

[243] Before parenting time is changed a court will expect the father to do the following:

a) Strictly abide by the terms of this order and the restraining order.

b) Exercise, to the extent he is able, the full amount of parenting time allocated to him.

c) Stop questioning the children or taking photos or making audio and video recordings for the purpose of alleging the mother is unable to care for the children.

c) Demonstrate that he can understand the impact of his behaviour on the mother and the children.

d) Demonstrate an ability to accept responsibility for his actions and not externalize blame onto others.

f) Take a parenting course that also addresses the impact of conflict and violence on children. Such programs are available through the CAS.

h) Show responsibility by paying child support.

i) Demonstrate that he has roots in this jurisdiction by maintaining stable accommodations and full-time employment.

j) Be transparent by keeping the mother advised of his residence and contact information and providing her with full and complete financial disclosure.

[244] If the father takes these steps over the next couple of years the court will consider this a material change in circumstances. If he takes these steps (and if an agreement cannot be reached with the mother), the father can bring a motion to change the parenting order.

[245] At the present time, there will be an order that the father continue to exercise supervised parenting time on terms that permit him to continue to have up to 6 hours a week and terms that attempt to curtail his detrimental conduct during the visits

7. Restraining order

7.1 Applicable statutory provisions and legal principles

[246] The mother seeks an order that the temporary restraining order in favour of herself and the children be made final. The father opposes such an order.

[247] The mother requests a restraining order pursuant to section 35 of the CLRA and section 46 of the FLA.

[248] Section 35 of the CLRA reads as follows:

Restraining order

35. (1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

Provisions of order

(2) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate.

[249] Section 46 of the FLA provides as follows:

Restraining order

46 (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 35.

Same

(2) A restraining order under subsection (1) may be made against,

(a) a spouse or former spouse of the applicant; or

(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time. 2009, c. 11, s. 35.

Provisions of order

(3) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate. 2009, c. 11, s. 35.

[250] I adopt the summary of the legal principles for a court to apply in considering whether to impose a restraining order as set out by Justice Stephen Paull in E.O. v. O.E. 2019 ONCJ 921 as follows: The legal principles for the court to apply are as follows:

a. Restraining orders are serious and should not be ordered unless a clear case has been made out. Ciffolillo v. Niewelglowski, 2007 ONCJ 469.

b. A restraining order is serious, with criminal consequences if there is a breach It will also likely appear if prospective employers conduct a criminal record (CPIC) search. This could adversely affect a person’s ability to work. F.K. v. M.C., 2017 ONCJ 181.

c. Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds for the person to fear for his or her own safety or for the safety of their child. McCall v. Res, 2013 ONCJ 254.

d. The person’s fear may be entirely subjective so long as it is legitimate. Fuda v. Fuda, 2011 ONSC 154, 2011 CarswellOnt 146 (Ont. SCJ); McCall v. Res, supra.

e. A person’s subjective fear can extend to both the person’s physical safety and psychological safety. Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.).

f. It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. Fuda v. Fuda, supra.

g. A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behavior with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. Purewal v. Purewal, 2004 ONCJ 195.

h. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears. Fuda v. Fuda, supra.

i. Courts should have regard for the passage of time. Events that once triggered a temporary restraining order may not be so compelling on the issue of a permanent order. D.S.C. v. M.T.C., 2015 ONCJ 242.

j. In borderline cases, the court must consider what other protections may be available if a restraining order is not granted. D.S.C. v. M.T.C., supra.

k. It is appropriate, in borderline cases, to consider the balancing prejudice to the respondent, if the restraining order is granted. D.S.C. v. M.T.C., supra.

l. A no-contact or communication order made pursuant to section 28 of the Children’s Law Reform Act is not as wide-ranging as a restraining order. It can limit contact and communication between the parties, but it cannot restrain a party from harassing the other party to third parties. F.K. v. M.C., supra.

m. Further, the court should be alert to the fact that parties may improve their behavior when the eyes of the court are on them. This might not continue once the case ends. F.K. v. M.C., supra.

[251] Based on the evidence that I accept, I find that the father has engaged in a pattern of behaviour that has been threatening towards the mother and has caused her, on an objective and subjective basis to reasonably fear for her safety and the safety of the children.

[252] On November 19, 2021, when the father learned of the ex parte order that required him to return the children to the mother, he became angry, belligerent and threatening when he spoke to the maternal grandmother. The mother was present and was reasonably concerned about his threats. The child D.S who had been picked up earlier was also present.

[253] The maternal uncle who was also in the car, testified that he put the call on speaker and began to record the call that the father placed to the maternal grandmother. The father was yelling at the maternal grandmother in Farsi, that the paternal uncle understands, and said she might only live for 1 or 2 days. The father repeated bad words and said in Farsi, “I won’t let you live you cannot walk in Canada from me.” According to the maternal uncle this is an expression in Farsi that means that, “you will be dead.” When the paternal uncle asked him what he meant, he said, “I will show you.” The father also said that he refused to return H.S. to the mother. The paternal uncle reported this conversation to the police.

[254] The maternal uncle was cross-examined about this incident and was not shaken in cross-examination.

[255] Justice Sherr granted a temporary restraining order on December 21, 2012 based on his findings that the father had breached court orders, the father’s reaction to the mother obtaining the without prejudice order on November 19^th^, 2019, the father’s anger and disrespect towards the mother and her family and the risk of the father abducting the children.

[256] In assessing the necessity of the continuation of the restraining order it is relevant to review the father’s behaviour since that order was made.

[257] I accept the mother’s evidence that she saw the father following several times when she walked H.S. to school. She would see the father in the area around her building 2 to 3 times a week. He would drive past her, honk his horn, and make angry gestures at her. On one occasion he told her to call him and this resulted in her reaching out to him to try to plead with him not to hurt her or the children

[258] The father breached the temporary restraining order by communicating with the mother. The mother sent the father a friend request on Facebook that he properly ignored. The mother then telephoned the father. The father breached the order by not ending the call. The father continued the call and attempted to convince the mother that she should remove the restraining order. Although it may have been ill advised for the mother to call

the father to try to pacify him, it is the father, not the mother, who is bound by the restraining order not to communicate with the mother.

[259] The maternal aunt also testified about seeing the father as a gas station that is close to the mother’s building. Her evidence was not shaken in cross-examination.

[260] I find that the father’s ongoing allegations through his counsel, to the daycare and to the CAS to be a form of harassment that causes distress to the mother. Even after the decision of Justice Sherr finding that the mother had not abused the children, he persisted to make baseless accusations about her.

[261] For example, on May 13, 2022, the father alleged that the mother neglected H.S. as she failed to look after her cough and failed to pick up medication for her and that H.S. had dried blood in her nose. The father made a litany of complaints about the mother ‘s mental health issues and her need to be supervised. He also complained about [and] the maternal grandmother. None of his complaints were verified.

[262] On June 27, 2022, the father made another complaint to the CAS and alleged that the mother was in breach of the court order as the maternal grandmother went on vacation for 2 weeks and the mother had mental health issues and should not be left alone with the children. The father stated that the children should therefore come to stay with him.

[263] The father made the same complaints through his counsel and alleged the children were being exposed to potential harm. He also criticized the mother for not ensuring H.S had glasses.

[264] The CAS worker again contacted the mother who advised that there has been a death in the family and the maternal grandmother had to leave for a few days. One of the paternal uncles was staying with her to help with the children. The allegations were again not verified and the file closed.

[265] Neither the mother nor maternal grandmother were cross-examined about this incident.

[266] The father complains and questions the children about any little scratch or bruise or mark. The mother deposes that she finds the father’s ongoing accusations to be stressful. When the trail is over, she will no longer have the help of her counsel to mange the accusations.

[267] The father showed no insight into the effect these accusations have on the mother. He showed no insight into how inappropriate his actions were or why they would cause anxiety and fear in the mother. The father’s accusations need to be seen in the context of his threats to take the children away from the mother due to his allegations that she is unable to care for the children due to her mental health issues and alleged cognitive delays.

[268] I am satisfied that the father has not changed his behaviour and will not do so in the foreseeable future. I am satisfied that he will continue to follow the mother and turn up close to her home as an intimidation tactic.

[269] I am satisfied that a court order that restrains him from communicating or being near the mother and the children is necessary to prevent him from continuing to harass and threaten her.

[270] I find that an order pursuant to sec. 28 of the CLRA that simply prohibits him from acting in this manner will not be a sufficient deterrent especially as he has already breached the temporary restraining order.

[271] Unfortunately, the court cannot prevent the father from continuing to make the same baseless and unfounded allegations against the mother to the CAS. I am hopeful that the CAS will consider the findings of the court when these allegations are made. I have instructed court staff to provide a copy of this decision to the CAS.

[272] Based on the totality of the evidence that I accept, I find that a restraining order is necessary and appropriate. The father shall be prohibited from communicating directly or indirectly with the mother or the children, except as permitted by the terms of the restraining order, and he shall not be within 500 metres of any place that he knows they live, work, go to school or any place he knows them to be except for the purposes of exercising his parenting time.

[273] The father is reminded that a breach of a restraining order can result in criminal charges.

8. Child support

[274] The mother seeks to impute income to the father retroactive to the date of separation on October 19, 2019.

[275] The father seeks to have child support commence as of the date of his Application in October 2021. His income for 2021 was $24,718.

8.1 Applicable legal principles regarding retroactive claim for child support

[276] The court’s authority to make a retroactive support order is set out in sec. 34 (1) (f) of the Family Law Act as follows:

Powers of court

34 (1) In an application under section 33 [ order for support], the court may make a interim or final order,

(f) requiring that support be paid in respect of any period before the date of the order

[277] A party claiming support is presumptively entitled to support as of the date of the Application. This is then prospective child support and not retroactive support. See Mackinnon v. Mackinnon 2005 CanLII 13191 (ON CA), [2005] OJ No. 1552 (QL) (OCA).

[278] The mother claims retractive child support to the date of the separation that is October 19, 2019.

[279] The Supreme Court of Canada in D.B.S. v. S.R.G et al. 2006 Supreme Court of Canada 37 (CanLII) set out the following principles in determining whether to make a retroactive award:

(i) A court should strive for a holistic view of the matter and decide each case on the basis of its particular facts.

(ii) The payor parent’s interest in certainty must be balanced with the need for fairness to the child and for flexibility.

(iii) In doing this, the court should consider the reason for the recipient parent’s delay in seeking child support, the conduct of the payor parent, the past and present circumstances of the child, including the child’s needs at the time the support should have been paid, and whether the retroactive award might entail hardship.

(iv) Once the court determines that a retroactive child support award should be ordered, the award should as a general rule be retroactive to the date of effective notice by the recipient parent that child support should be paid or increased, but to no more than three years in the past. Effective notice does not require the recipient parent to take legal action; all that is required is that the topic be broached. Once that has occurred, the payor parent can no longer assume that the status quo is fair.

(v) However, where the payor parent has engaged in blameworthy conduct, the date when the circumstances changed materially will be the presumptive start date of the award.

(vi) The court must ensure not only that the quantum of a retroactive support award is consistent with the statutory scheme under which it is operating, but also that it fits the circumstance

8.2 Analysis regarding claim for retroactive child support

[280] In this case, there is no evidence that the mother broached the subject of child support with the father prior to filing her Answer and Claim after the father commenced the Application.

[281] There is a history of family violence and the power imbalance between the parties. The mother was intimidated by the father. After the separation, the mother had no idea how much the father earned or where he worked and he would not even reveal his address to her. She was in constant fear that he would try to take the children and prior to the Application suffered a mental health breakdown that required hospitalization. Given the many issues the mother had to deal with her delay in requesting the child support is reasonable.

[282] The father engaged in blameworthy conduct as not only did he not provide the mother with any child support but he inappropriately claimed the Canada Tax Credit Benefit that the mother was entitled to. I do not accept his evidence that he paid any child support as he did not provide any proof. Even if he bought some items for the children, this would not have met his child support obligation.

[283] The children suffered financially as the mother’s only source of income was Ontario Works and the Canada Tax Benefit when she was able to have it reinstated and paid to her.

[284] Although there will be some hardship to the father, but he had created this situation by not paying child support after the separation as he was working and should have been aware that he was obligated to support the children. Not ordered retroactive child support would cause hardship to the mother and the children. Any hardship to the father can be alleviated by periodic payments.

[285] The mother is only requesting child support as of October 2019, that is, 2 years before her formal claim.

[286] I find that the mother is entitled to retroactive child support as of November 1, 2019 being the month after the separation.

8.3 Applicable legal principles regarding claim to impute income

[287] The mother seeks to impute income to the father.

[288] Section 19 of the Child Support Guidelines permits the court to impute income to the father if it finds that he is earning or capable of earning more income than he claims.

[289] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731(Ont. CA).

[290] In the well-known case of Duffy v. Duffy, 2009 NLCA 48, the court sets out the following principles:

a) The fundamental obligation of a parent to support his or her children takes precedence over the parent’s own interests and choices.

b) A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her own children.

c) A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent.

d) The determination to impute income is discretionary, as the court considers appropriate in the circumstances.

e) A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action.

[291] The Ontario Court of Appeal in Drygala, supra, set out the following three questions which should be answered by a court in considering a request to impute income:

1. Is the party intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of his or her reasonable educational needs?

3. If not, what income is appropriately imputed?

[292] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.).

[293] The court stated in Drygala, supra, that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.

[294] Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. See Filippetto v. Timpano, 2008 CanLII 3962 (ON SC), [2008] O.J. No. 417, (Ont. S.C.).

[295] Once under-employment or unemployment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. See: Riel v. Holland, 2003 CanLII 3433 (Ont. C.A.).

8.4 Analysis regarding imputing income to the father

[296] The father confirmed that his resume (Ex.29) was accurate. The father is well educated. While living in Afghanistan he completed high school. He also obtained a Diploma on Information Technology, a Diploma in Business Administration, and a Bachelor of Economics.

[297] He continued his education in Canada. He obtained his Ontario Secondary School Diploma. He attended the Automotive Business School of Canada for training as an automobile sales representative. He obtained a class “A” licence to operate a tractor trailer. He also received a Certificate of Mechanical Ventilation for Covid-19 and an Ontario Security Guard licence.

[298] The father has worked as a security guard on and off since 2015 on either a full-time or part-time basis. He last worked at this job on a part-time basis in 2021. The father has also worked as a delivery driver and for Uber which is his current job.

[299] The evidence is non-existent to explain why the father is currently only working part-time or why he collected Ontario Works. He offered no evidence as to what attempts he has made to find employment that utilizes the skills and education he has acquired.

[300] The father provided incomplete financial disclosure to properly assess his income.

[301] The father’s financial statement of September 22, 2022 indicates an income of $25,837.56 that consists of self-employed income of $1,921.02 monthly from January 2021 to September 2022[^3] and Ontario Works of $232.11 per month from January to April 2022.

[302] The father’s stated annual expenses are $51,985.44. This includes the cost of a $30,000 car loan for a 2018 Toyota Camry that he purchased in August 2022. His monthly car payments are $558.54 a month. He is also paying his VISA of $295.78 per month and $13,851.32 yearly.

[303] He owes Ontario Works $974 for an overpayment he received and owes Canada Tax Benefit for the funds he improperly received. That debt is not listed on his financial statement.

[304] The father claims that his mother and sister have loaned him money and provides a copy of a bank transfer with a handwritten notation that this is a loan. No documents were produced to verify that the transfers were loans. Nor were the paternal grandmother or aunt called as witnesses. The father did not explain why if they loaned him money he then paid for his mother and sister to travel to Canada or why they were not assisting him with rent or contributing to any other household expenses.

[305] The father attached to his financial statement copies of a Statement of Business Income for 2021. He states that he only earned $7,500 and deducted expenses for meals and utilities that he agreed were not proper deductions. He deducted car expenses and Uber fees total of $5,161.75. His net income was -$2,29.96.

[306] The father then attached a summary of his Uber income from January to September 19, 2022. The total income is $16,529.71. On some weeks the father only earned $50.59 but on other weeks he earned between $1,010 to $1,648.82. The father agreed that if he worked 45 to 50 hours a week he could earn a gross of about $82,400.

[307] The father deposed and stated that he could work as many or as few hours as he wished.

[308] Since the children were not in his care, except for 3 months from September to November 2021 when the children were in his full-time care, the father did not provide any explanation as to why he was not working full-time.

[309] The father provided his Notices of Assessment for the years 2019 to 2021.

[310] In 2019, the father earned $36,732. According to the father, this consisted of employment income for 9 months and Ontario Works for 3 months. According to his resume, he was working as security guard from January 2019 to April 2020 and also worked as of November 13, 2019, to the present time as a “food delivery driver” In his testimony he stated that he worked for Uber. As the father’s resume states he was working throughout 2019 it is not clear why he was in receipt of Ontario Works.

[311] In 2020, the father’s Notices of Assessment indicates he earned $29,641. His source of income based on his resume states that he only worked as a security guard up to April 2020 and then part-time as a delivery driver. He provides no explanation or documentation to explain why he did not continue to work as a security guard.

[312] In 2021, the father’s Notice of Assessment indicates he earned $24,718. But the Uber statement he provided stated he only earned $7,500 gross and a net negative income. According to his resume he only worked as a security guard from January to February 2021. His source of income is unexplained.

[313] . The father’s evidence regarding the sources of his income is confusing and contradictory. He provides no evidence as to his efforts to find full-time employment or to find employment that utilizes his education background or his experience. In fact, the father was clear that if the children were in his care, he could choose how often he worked. There was no evidence that he could not obtain a full-time job as a security guard or as a full-time Uber driver.

[314] Prior to the separation the father frequently worked two jobs and worked on the weekends and evenings. But after the separation, when he had an obligation to support the children, he began to earn a minimum income that was even below minimum wage. I find that the father has deliberately chosen to earn less than he is capable of earning

[315] The father freely admitted that he can choose to work whenever he wants for Uber and this is an advantage to him if the children were placed in his care.

[316] Since the children have not been in his care since October 2019, the father had an obligation to earn what he is capable of earning and support the children.

[317] The mother has clearly met the onus on her to establish that the father is deliberately under employed or unemployed.

[318] The next step is to determine what income should be imputed to the father.

[319] For 2019 and 2020, the mother seeks to impute the father’s income in accordance with his declared 2019 income of $36,732. Based on the evidence that he only worked 9

[320] months in 2019 and received Ontario Works for 3 months. I find that it is reasonable that he could have earned this same amount, if not higher, in 2020.

[321] As of January 2021, the mother seeks to impute $65,000 to the father. This is based on his evidence that if he worked 45-50 hours a week, he could earn a gross income of $85,000.

[322] Without any accurate information about his reasonable business deductions, counsel has given him a credit of $20,000 that would include his legitimate business expenses and working a bit less than 45-50 hours a week. Based on the father’s financial statement, his total car related expenses are $1,402.62 per month or $16,831.44 per year. If most of these are related to driving for Uber then the mother’s calculations appear reasonable.

[323] The onus was on the father to provide proof of his legitimate business expenses. He should have provided evidence with respect to the availability of full-time employment with Uber or full-time employment as a security guard or for any other job for which he is qualified. He should have provided proof of the average income for these jobs.

[324] The court can also consider that the father has maintained monthly expenses of $51,985.44 and has recently purchased a car.

[325] The father has chosen to pay for a car loan, other debts and pay for his mother and sister’s expenses to travel and remain in Canada rather than prioritizing his child support obligations.

[326] I find that as of January 2021, it is reasonable to slightly lower the income the mother seeks to impute to the father to $55,000 and to gradually increase the imputation each year to give the father an opportunity to now obtain full-time employment to meet his retroactive support obligations that utilizes his education and experience.

[327] As of January 2022, the father’s income will be imputed at $60,000, and by 2023 at $65,000.

[328] Counsel for the mother submits that all arears that arise from this order should be paid by lump sum.

[329] I find that it is not realistic for the father to repay all the arrears in a lump sum as the father is currently not earning the income that has been imputed to him. His ability to further borrow funds is unclear. He is also paying $300 per month with respect to the cost order related to the temporary motion. I find that if a repayment order is made it is more likely that the father will be able to reorganize his resources to meet his obligations.

[330] If the father is current on his temporary child support obligation, then his arrears of November 1, 2019 will be about $12,500. It would be reasonable that he pays the arrears in installments of a minimum of $500 per month as of January 1, 2023, but if he fails to pay this monthly amount for more than 30 days, then the entire arrears owing will become due and payable.

9. Order

[331] There will be an order as follows:

1. The children, H.S., born […] 2016, and D.S., born […] 2019 (“children”), shall have their primary residence with the Respondent mother, M.R. (“mother”).

2. The Respondent mother shall have sole decision-making responsibility for the children.

3. The Respondent mother may apply for government issued identity documents, including birth certificates, passports, health cards, social insurance cards, for the children H.S., born […] 2016, and D.S., born […] 2019, without the written consent or signature of the Applicant father, M.H.S. also known as H.S. also known as M.H.S. (“father”).

4. The Respondent mother may travel outside of Canada with the children H.S., born […] 2016, and D.S., born […] 2019, for vacation purposes, without the Applicant father’s consent.

5. The Applicant father shall have parenting time with the children on the following terms and conditions: (a) The parenting time shall be fully supervised by a professional third-party parenting supervisor, Brayden Supervision Services or Access for Parents and Children in Ontario. At least 10 days written notice shall be provided to the mother before each visit if the parenting time visit will be supervised by Brayden Supervision Services.

(b) The Applicant father shall pay the fees and expenses of the professional parenting time supervisor. (c) The Applicant father shall obtain and pay for the observation notes of the professional parenting time supervisor and provide them free of cost to the Respondent mother. This shall be done on an ongoing basis by paying the supervision service directly and notifying the supervision service to inform the mother and to release the notes directly to the Respondent mother upon her request. (d) The parenting time shall only be conducted in English. (e) The Applicant father’s passports shall remain deposited with the court. If the Applicant father obtains new or replacement passports (from any country), he shall deposit all his and the children's passports from all countries, together with an affidavit attesting that these are all the passports in his possession or control. He must provide proof that he has done this on an ongoing basis and as a condition of his parenting time taking place. Should he require his passport for any reason, he may bring a motion to the court on 10 days written notice to the mother. His parenting time shall not take place until his passports are deposited with the court, and proof (receipts from the court) are provided to the Respondent mother. This shall be an ongoing obligation. The Respondent mother may confirm with the court that the passports are deposited with the court, and the court is directed to cooperate and to provide her with copies of the receipts. (f) The Applicant father may have up to 6 hours of parenting time per visit. The Applicant father shall not change the timeslot (start time and/or end time) for parenting time unless at least 14 days written notice is provided to the mother by the professional parenting time supervisor. (g) The Applicant father shall not do any of the following during his parenting time: (i) criticize or make negative comments about the Respondent mother or the maternal family to the children; (ii) ask the children any questions or try to get information from the children about actual or suspected injuries or illnesses or medical attention; whether anyone has injured them; any accidents they may have been in; anything to do with their medical appointments or their medical care; any trips or upcoming trips that the children, mother or maternal family may be taking (iii) ask the children questions or try to get information from the children regarding who is providing care to them or anything regarding the care provided by the mother or the maternal family. If the father does any of the above, the visit should be stopped by the supervisor.

(h) The Applicant father shall not take photos or videos or any recordings of the children during his parenting time visits for the purpose of using these photos, videos or recordings to make a complaint about the Respondent mother’s care of the children.

6. The frequency of parenting time shall be as follows: starting on Sunday November 27, 2022 for three consecutive Sundays, followed by the children spending one Sunday with the Respondent mother. At her discretion, the Respondent mother may cancel up to 3 Sunday parenting time visits per calendar year for personal reasons (for example, taking the children on vacation or for a special occasion). The Respondent mother does not have to provide the father or the supervision services with her reasons for this, however she shall provide at least 14 days written notice to both the Applicant father and to the supervision service provider.

7. The Applicant Father, M.H.S. also known as H.S. also known as M.H.S., born […], 1987, shall not remove the children H.S., born […] 2016, and D.S., born […] 2019, from the City of Toronto, Ontario, Canada or permit anyone to do so on his behalf.

8. Any notice to be provided to the Respondent mother by the Applicant father (regarding visits, change of address, annual financial disclosure), shall be through a third party selected by the mother, and shall be by email. The Respondent mother shall provide an email address to the father (and to the parenting time supervisor), for this purpose within 5 days, and on an ongoing basis whenever there is any change.

9. The Applicant Father, M.H.S. also known as H.S. also known as M.H.S., shall not copy, distribute, or otherwise use any of the records from the Children’s Aid Society produced during this case, except for purposes of an appeal.

10. The Applicant Father, M.H.S. also known as H.S. also known as M.H.S., shall not copy, distribute, or otherwise use any recordings (audio or video whether by him or his agents) or any transcripts or written recordings regarding the Applicant Mother, in his possession or control, or in the possession or control of his agents, except for purposes of an appeal.

11. The Applicant Father, M.H.S. also known as H.S. also known as M.H.S., shall not copy, distribute, or otherwise use any medical information regarding the Respondent Mother, M.R., in his possession or control, or in the possession or control of his agents, except for purposes of an appeal.

12. The Applicant Father, M.H.S. also known as H.S. also known as M.H.S. shall not record the Respondent Mother, M.R., or the children, H.S., born […] 2016, and D.S., born […] 2019, or direct or encourage anyone else to do so. This includes by video, photograph, or audio.

13. Both parties shall enroll and individually attend and complete a program for separated parents such as Families in Transitions and provide the other parent with proof of attendance and completion.

14. Pursuant to section 35 of the Children’s Law Reform Act, R.S.O. 1990, Chapter C.12 and section 46 of the Family Law Act, R.S.O. 1990, Chapter F.3: an Order that the Applicant Father, M.H.S., born […], 1987, shall not: (A) contact or communicate directly or indirectly with the following people: Respondent Mother, M.R., born […], 1994; or the children H.S., born […] 2016, and D.S., born […] 2019; (B) come within 500 metres of: (i) the Respondent Mother, M.R., born […], 1994; her home; her workplace; her school; the maternal grandmother’s home; or any other place that the Applicant Father knows her to be at; (ii) the children; their home; their daycare or babysitter; the maternal grandmother’s home; their school; or any other place that the Applicant Father knows them or either of them, to be at any time or for any purpose, except: (a) in accordance with an Order for parenting time made after this date by this Court; (b) through a professional parenting time supervision service; (c) for purposes of providing notice to the mother regarding visits, for a change of address; and for his annual financial disclosure, through a third party selected by the Respondent mother for this purpose.

15. Starting November 1, 2019, the Applicant father, M.H.S. also known as H.S. also known as M.H.S., shall pay child support to the Respondent mother, M.R., for the children, H.S., born […] 2016, and D.S., born […] 2019 in accordance with the in accordance with the child support guidelines as follows: (a) for the period November 1, 2019 to December 31, 2020, $555.00 per month based on an imputed income of $36,732.00. (b) for the period January 1, 2021 to December 31, 2021, $839.00 per month based on an imputed income of $55,000.

(c) for the period of January 1, 2022, to December 31, 2022, $ 915.00 per month based on an imputed income of $60,000 and

(d) as of January 1, 2023, $991.00 per month based on an imputed income of $65,000.

(e) the Applicant will be credited for any payments made to the Family Responsibility Office after the order of March 16, 2022, as reflected in its records.

16. The Applicant father shall pay any arrears arising as a result of this Order at the rate of $500.00 per month as of January 1, 2023. If any payment is more than 30 days late, the entire amount of the arrears then owing shall be immediately become due and payable.

17. SDO to issue.

18. The Applicant father shall provide to the Respondent mother through her designate complete copies of his income tax return with all schedules and attachments and his Notices of Assessment or Notices of Re-Assessment annually starting as of June 30^th^, 2023.

19. A copy of this decision shall be sent to the Legal Department of the Children’s Aid Society.

[332] The Respondent mother has been the successful party and is presumed to be entitled to costs.

[333] The Respondent mother shall serve and file cost submissions not to exceed 3 pages with a Bill of Costs and any offer to settle to be attached. No copies of any case law are to be submitted. The cost submissions are to be submitted to the trial coordinator to my attention within 14 days and the Applicant father will serve and file his responding costs submissions on the same terms within 14 days of receipt of the Respondent’s cost submissions.

[334] A draft order of this decision, and Support Deduction Order and a draft cost order should also be filed with the trial coordinator to my attention.

Released: November 17, 2022

Signed: Justice Roselyn Zisman

[^1]: Accordingly Exhibits A to K [Tabs 6, 7,13,14,15,16,17,18, 21,24 and 25 of the Applicant’s exhibit book] marked for identification only are not exhibits in this trial.

[^2]: While the paternal uncle gave evidence, he mentioned that he had the audio recording of the conversation that he referred to in his affidavit. Counsel asked that it be played and based on the court interpreter’s translation the recording accurately reflected the contents of the uncle’s affidavit.

[^3]: The financial statement states that his income is from January 1, 2022 to September 1, 2020 that I assume is a typographical error and also Ontario works from January 2022 to April 29, 2020 that I also assume is an error.