ONTARIO COURT OF JUSTICE
DATE: 01 06 23 COURT FILE No.: Toronto 21656/18
BETWEEN:
S.B. Applicant
— AND —
L.L. Respondent
Before: Justice D. Szandtner
Heard on: December 12 and 13, 2022 Reasons for Judgment released on: January 6, 2023
Counsel: Clifton Leung, counsel for the Applicant Mark Skikavich, counsel for the Respondent
SZANDTNER J.:
Part One – Introduction
[1] The child C.B., born [...], 2015, is in the primary care of the applicant S.B. (“the mother”). She has sole decision-making responsibility for the child with a duty to consult with the respondent L.L. (“the father”) on major decisions. These final orders were made on consent of the parties on January 10, 2019.
[2] The father is seeking an order for specified parenting time with C.B. He has not had contact with his son since December 18, 2021.
[3] The father seeks a parenting time order that provides for a gradual expansion of parenting time with his son and a gradual reduction of supervision. It would begin with 2 hours fully supervised for 4-6 weeks, then 6 hours semi-supervised and culminating in unsupervised day visits for eight hours.
[4] The mother is seeking an order that father’s parenting time with C.B. be at her discretion and in accordance with the child’s wishes and needs.
[5] All other issues have been resolved by way of final court orders.
[6] Both parties were represented by counsel. The parties both testified and chose not to call any other witnesses. On consent, the report from Ms. McInnes, a clinician from the Office of the Children’s Lawyer (“OCL clinician”), was filed. The parties both chose not to cross-examine her.
Part Two – Background Facts
[7] The parents were in a relationship between July 2013 and April 2018.
[8] C.B. is the only child of the relationship.
[9] The father has two other children who are in his care on alternate weekends. E.L. is 13 years of age and J.L. is 16 years of age. E.L. has been diagnosed with autism.
[10] The mother has two older children who are in her primary care. They are A.M. who is 19 years of age and B.B. who is 15 years of age. A.M. has been diagnosed with ADHD and autism.
[11] The parents separated in 2018. C.B. remained in the home with his mother following the separation.
[12] On November 13, 2018, the mother commenced an application for sole custody and primary residence of C.B. She further sought an order that the father have supervised access to C.B. at her discretion. She also sought child support and the ability to travel and obtain government documents without the consent of the father.
[13] On January 10, 2019, on consent of the parties, Justice Zisman made the following final orders:
a) The applicant S.B. shall have sole custody of C.B.
b) The applicant S.B. shall notify the respondent L.L. at least sixty days prior to making any major decision that affects the child and she shall take the father’s views into account. In the event of a disagreement, her decision shall prevail absent any court order to the contrary.
c) The respondent L.L. shall be at liberty to communicate with all professionals attending the child, including but not limited to the child’s teachers, physicians, principals and extracurricular instructors, and to obtain reports from them.
d) The applicant shall not move the child’s residence to a location outside the GTA without the prior consent of the respondent or court order.
e) Neither party shall remove the child from the province of Ontario without the prior written consent of the other party, such consent not to be unreasonably withheld, or court order.
f) The applicant S.B. shall be permitted to obtain all government documents for the child without the need to obtain the consent of L.L. She will provide a copy of these documents to L.L.
g) Commencing January 1, 2019 to April 3, 2019, L.L. shall pay child support in the amount of $50.00 per month.
h) Commencing May 1, 2019, L.L. shall pay to the applicant the table amount of child support based on his actual income in accordance with the Child Support Guidelines (“CSG”).
[14] On January 10, 2019, Justice Zisman made a temporary order on consent that the parties shall immediately contact Access for Parents and Children in Ontario (“APCO”) to arrange access visits between the respondent and C.B. Any associated fee shall be shared equally by the parties.
[15] Between May 2019 and August 2019, the father attended five supervised access with C.B. at APCO.
[16] On August 20, 2019, Justice Carolyn Jones made the following orders:
a) On a final basis, commencing May 1, 2019, the respondent L.L. shall pay to the applicant the sum of $290.00 per month based on a gross annual income of $33,831.00 in accordance with the CSG.
b) The respondent L.L. shall exercise temporary without prejudice access to C.B. as follows:
i. On August 17, 24, September 7, 2019 from 10:00 am to 2:00 pm, to be supervised by C.B.’s paternal grandmother;
ii. On September 15, 21, 23, October 5, 2019 from 10:00 am to 4:00 pm to be supervised by C.B.’s paternal grandmother;
iii. Commencing on October 12, 2019, until the return to court, every Saturday from 10:00 am to 4:00 pm provided that only 3 hours shall be supervised by the paternal grandmother; with the remaining 3 hours unsupervised.
c) The applicant shall provide to L.L.’s counsel C.B.’s assessment report from Holland Bloorview. Both parties shall cooperate with the recommendations.
[17] In August and September of 2019, the father had visits with C.B., supervised by the paternal grandmother and held at her home. His parenting time gradually progressed to unsupervised visits, one day a week. The paternal grandmother accompanied the father to the exchanges.
[18] In October 2019, the Children’s Aid Society of Toronto (“CAST”) became involved due to an allegation that the father spanked C.B. During October and November of 2019, the father’s parenting time did not occur.
[19] On November 25, 2019, the father brought a motion for contempt as the access order was not being complied with by the mother. Justice Carolyn Jones made a further temporary access order which amended the August 20, 2019 temporary order for the father’s access as follows:
a) Commencing November 30, 2019 and including December 14, 2019, Saturdays from 10:00 am to 2:00 pm supervised by either the paternal grandmother or by an agreeable third party or agency.
b) Commencing December 21, 2019 to and including January 11, 2020, Saturdays from 10:00 am to 3:00 pm, with the first three hours to be supervised by the paternal grandmother or by an agreeable third party or agency.
c) Commencing January 18, 2020, and continuing until further order, Saturdays from 10:00 am to 4:00 pm, with the first three hours to be supervised by the paternal grandmother or by an agreeable third party or agency.
d) During all access visits, the father shall ensure that no one physically disciplines the child. The child is to be under the supervision of the respondent father at all times.
e) The father is to ensure that his home is child-proofed.
f) Any communication between the parties shall be mutually respectful.
g) The parties shall ensure that the child is not exposed to adult conflict.
h) The respondent father may obtain any information, documents or reports pertaining to the child C.B. from any third-party professional or service providers involved with the child, including teachers, school administrators or personnel, doctors, other medical professionals and counsellors for the child without the consent of the applicant mother.
i) The respondent father shall exercise access to C.B. on Christmas day from 3:00 pm to 7:00 pm.
[20] On November 25, 2019, the father’s parenting time resumed.
[21] Due to C.B.’s behaviour and special needs, in September of 2020, he was enrolled in the Rene Gordon Day Treatment Program, in order to provide him with an individualized education program and treatment services.
[22] On September 10, 2020, the parties filed a consent for an expansion of access. Justice Jones made the temporary order that the father was to have access to C.B. one day per week for eight hours as arranged by the parties.
[23] Between February and March 2021, the father did not see C.B. The mother’s position at that time was that C.B. did not want to visit his father and resisted the visits.
[24] On March 31, 2021, a case conference was held. It was reported that the father’s parenting time had not occurred since February 2021.
[25] On April 16, 2021, a case conference was held. It was agreed that J.R., the mother’s neighbour and paternal grandmother to her older children, would assist in supervising the parenting exchanges.
[26] On June 22, 2021, a case conference was held. Justice Jones requested that the Office of the Children’s Lawyer (“OCL”) conduct an investigation and provide a report pursuant to s.112 of the Courts of Justice Act.
[27] During the summer of 2021, the father had parenting time with C.B. every Saturday from 11:30 am to 7:30 pm. At that time, J.R. was assisting with the exchanges.
[28] In November 2021, J.R. withdrew her voluntary assistance to the family due to the father’s abusive communications with her. J.L., the father’s eldest son, replaced her to supervise the exchanges.
[29] Through December 2021, the mother reported that C.B. was resisting attending access with his father. C.B.’s last visit with his father was December 18, 2021.
[30] The OCL clinician provided her report to the parties on February 11, 2022.
Part Three – The Mother’s Position and Evidence
[31] The mother takes the position that the father’s parenting time with C.B. should be at her discretion in accordance with the child’s wishes and needs.
[32] C.B. has been diagnosed with Attention Deficit Hyperactive Disorder (“ADHD”), Oppositional Defiant Disorder (“ODD”) and Sensory Processing Disorder (“SPD”). S.B. testified that C.B. also has severe separation anxiety and has difficulty sleeping through the night.
[33] C.B.’s ADHD is extremely severe. During the COVID school closures, his school made special arrangements for him to complete his schooling in person.
[34] C.B. previously attended regular appointments with a child psychiatrist and had the assistance of an occupational therapist through his school. C.B. attended a section 23 program at Lumenus and worked with both a speech therapist and occupational therapist. The section 23 program is a therapeutic specialized educational class for young children to address social/emotional/behavioural challenges that cannot be addressed in a community setting.
[35] C.B. completed his Lumenus program in the 2021-2022 school year. He is currently waitlisted to receive additional assistance and therapy through the TDSB.
[36] C.B. was not previously prescribed medication due to his age. Now that he is older, he is taking Vyvanse once a day to control his aggression. C.B. acts out violently by biting, kicking, screaming, scratching and punching.
[37] The mother testified that during the relationship the father was extremely abusive to her. The abuse was often witnessed by C.B. and his abuse extended to C.B. and third parties.
[38] The mother testified that the father has an explosive and violent temper. He has used physical discipline on C.B. and verbally berated her in the presence of his older children and C.B. He regularly yelled at C.B. to try to get him to listen to him.
[39] The mother testified that when she and the father were together, she witnessed his abusive treatment of his older children, both verbally and physically. The father would regularly lose his temper with the children.
[40] An example she provided took place in the summer of 2018. The father’s autistic child E.L. had an accident in the bathroom. He had consumed too much soda and had defecated on the floor. The father was outraged and berated the child for the accident, embarrassing him. The child became ashamed and was so fearful that he left the unit and hid in the hallway, refusing to come back inside.
[41] The mother testified that she is aware that the father was diagnosed with Schizoaffective disorder in early 2000 and that he took medication for same. She testified that she is not up to date on either his current diagnosis or his current compliance with medication.
[42] The mother’s evidence is that she directly witnessed one instance when the father threatened to commit suicide in front of her, her daughter and C.B. She also attached a suicide note from the father dated July 1, 2017 as an exhibit to her affidavit.
[43] The mother has witnessed the father yelling at C.B. during exchanges when he has refused to leave with him. C.B. would respond by crying and covering his ears.
[44] The mother wanted the father to educate himself with respect to C.B.’s needs by speaking to his professional supports at Lumenus. She also sought to participate in family counselling through Lumenus. Her evidence is that the father was highly resistant to participating in family counselling. He believed that since he had an older autistic child, he was capable of parenting C.B. without professional support.
[45] In the summer of 2021, the father agreed to speak to Lumenus and engage in family counselling. He failed to follow up. He advised the court that Lumenus did not offer family counselling services.
[46] In June 2022, a year after agreeing to engage with Lumenus, the father attended two progress meetings with Lumenus wherein they provided updates on C.B.’s condition. Family counselling available through Lumenus was never accessed. C.B. has since been discharged by Lumenus.
[47] The mother provided a history of the father’s parenting time with C.B. post separation as follows:
a) The mother initially supervised parenting time. She described verbal altercations with L.L. and her feeling of lack of personal safety around him.
b) On January 10, 2019, the parties agreed to utilize APCO for the father’s parenting time.
c) In May of 2019, the APCO visits commenced and were scheduled for alternating weekends.
d) On August 20, 2019, parties agreed to change the father’s supervisor to the paternal grandmother.
e) On September 19, 2019, the father physically disciplined C.B. by spanking him after the child ran out the front door towards a busy road.
f) The mother unilaterally suspended the father’s access following this incident. The father brought a contempt motion against the mother.
g) The father’s parenting time resumed on April 24, 2021 and he exercised parenting time on Saturdays from 10:00 am to 4:00 pm.
h) In June of 2021 the father’s parenting time was expanded to include 8 hour visits, once a week, as agreed between the parties. The mother testified that the father had all three children in his care and often returned C.B. early or cancelled visits without explanation.
i) In 2021 C.B. began to physically resist attending access with his father.
j) The parties tried virtual access but it was not successful.
[48] The mother testified that the father’s behaviour towards her and third parties continues to be abusive. She provided the following examples:
a) The father sexually harassed her during a parenting exchange in September of 2019.
b) The father’s abusive text messages to the mother read as follows:
a. “At least I put effort into life and dreams you just said you’re here to live, take care of your family and die.”
b. “I hope you get shot at foodland.”
c. “Truth is you’re a piece of shit that doesn’t know how to put hard work in. And never will. Go fucken die.”
d. “You’re dumb why would I want to shine for you. You don’t care about what I achieved in life so you’re just a piece of shit to me.”
e. “I just want you to die. If I die I don’t have to worry about it. If you live you’re just in my way.”
f. “You’re a loser S. You always have been. You just don’t have what it takes to win or even dream. You don’t even have the balls to make a difference. You talk shit and do nothing. I actually put effort in life. You open your legs for a welfare check and yes everyone knows that about you.”
g. “You’re an awesome whore thou but you know you are.”
h. “Are you seriously stupid? Do your brain patterns even function? Your dumb as fuck.”
i. “You fuck up child development because you want an extra cheque. Yes I was happier in PEI now I just have you as a loser baby mom.”
j. You’re fucken dumb. It’s the same park stupid fuck. You’re the only person stopping me from seeing C. and you say you let me see him but don’t. You need to die because this world has no place for stupid people. I love C. and you are the dumb ass stopping me.”
k. “Mark my word you will lose in the end.”
l. “YOU ARE STUPID.”
c) The father has sent mother’s counsel Mr. Leung abusive text messages and emails. These emails were copied to other counsel and the OCL clinician. They involved the following abusive language:
a. “little leung,” “the house of Leung are shameful, coward, liars!!!!” “Little cliffy”
b. “I will make it known to all Asian families that the little house of leung is full of little liars.”
c. “I wish I went to school with you little lying Leung. I would have destroyed you academically or in athletics. You are not even a fraction of the man I am and you’re not nearly half the man my son is.”
[49] The mother also provided a general occurrence report that outlined an incident that allegedly occurred on July 3, 2021. The father attended at his old friend’s parents’ home and sent a video of himself urinating on the front lawn. The father also threatened to burn down his family’s home. Her understanding was that the father’s threats were the result of the old friend calling the father names.
[50] The mother also testified that in or around April of 2021, the father’s parenting time exchanges were facilitated by J.R. the paternal grandmother to her older children. J.R. agreed to assist in order to ensure that C.B. was comfortable with the exchanges. She has known C.B. since birth. J.R. withdrew her assistance due to the father’s abuse. Text messages from the father to J.R. read as follows:
a) “Shut the fuck up you fat ass. C. is not your grandson. All your children are consistent losers. You need to work on YOUR GRANDSON before you worry about my son.”
b) “Do not ever tell me what to do.”
c) “And that is what you get for telling me where to go. You’re son is A. is the shit on my shoes.”
Part Four – The Father’s Position and Evidence
[51] The father seeks a parenting time order that provides for a gradual expansion of his time with his son. He seeks the following graduated order for parenting time on alternate weekends:
a) 4-6 sessions for two hours fully supervised;
b) 6 sessions for four hours supervised; half of the time supervised by agreed upon supervisor;
c) 8 hours unsupervised.
[52] The father is currently employed full time at a youth shelter. He has four young residents (aged 16-22) under his care. His education includes an addictions certificate. He has also taken many courses with respect to human development including some offered through Yale. He also completed the Triple P parenting course in 2020.
[53] The father testified that he is very successful in de-escalating situations at work and has been recognized for his work by his manager. He also volunteered in his community through cooking for kids in the Malvern neighbourhood.
[54] The father has two older sons who he co-parents with their mother. They spend every second weekend in his home. He is very proud of the success of J.L., his older son. J.L. is a successful high school student, champion wrestler and has a part time job. He testified that his middle son E.L. has been diagnosed with autism. In his view E.L. is much more complicated to manage than C.B. He testified that E.L. breaks things and throws things and does make him angry and yell on occasion. He explained that he managed E.L.’s behaviour with unconditional love.
[55] The father has been paying his child support for C.B. as ordered.
[56] The father stated that he was diagnosed with Schizoaffective disorder in 2002. He also suffers from anxiety. He was monitored by psychiatrist Dr. Canella until the doctor’s retirement in 2020. He was unsuccessful in securing a psychiatrist after Dr. Canella’s retirement in spite of a referral to Centenary Hospital. He testified that he was not assigned a psychiatrist as he is not considered high priority due to his gainful employment and level of education. He describes himself as currently stable and compliant with his daily medication. The medication consists of mood stabilizers that he takes in the morning and at night. He is currently monitored by his family doctor on a monthly basis. He testified that his job will soon cover the cost of therapy and he will take advantage of this benefit.
[57] The father testified that any evidence of his suicidal ideation is historical. He does not report any such ideation currently. He confirmed under cross-examination that he had threatened to jump off a balcony in the past.
[58] The father identifies his lack of contact with C.B. over the past year as his greatest stressor.
[59] The father testified that he is aware of C.B.’s ADHD diagnosis. However due to his lack of contact with his son over the past year, he has no other information with respect to his condition. He does not know the name of C.B.’s medication. He has never contacted C.B.’s current school. His explanation for this is that no one provided him with the school email or C.B.’s teacher’s name. He also explained that he was very busy with work and caring for his older children.
[60] However, the father did confirm that he had three phone contacts and one in person contact with the Lumenus staff that were working with C.B. in his day program. His takeaway from these conversations was that C.B. would benefit from access to a trampoline and noise-cancelling headphones.
[61] The father testified that he believes that he can handle C.B. because the child is very small and he does not get angry that much. His evidence is that C.B. does not hit him and he can embrace him into submission due to his small size.
[62] The father confirmed that he had not participated in any family counselling with C.B. and S.B. to date, but that he would be interested in participating in the future.
[63] The father acknowledged the incident involving him urinating on his friend’s lawn in 2021. He explained that it was a disagreement between old friends. He confirmed that the police attended his home to speak with him but did not lay criminal charges.
[64] When asked about a hospital admission in 2019 mentioned in the OCL report, the father explained that it was connected to a car accident. He was speaking on the phone with an insurance adjuster and became extremely frustrated and agitated. He told the adjuster that he felt like committing suicide due to his frustration at the information he was being provided. The adjuster called the police who visited him and transported him to the hospital. He was assessed at the hospital’s emergency room but not admitted.
[65] The father describes himself as an emotional person who is naturally loud. He doesn’t consider talking loudly as the same as showing anger. He testified that other people describe his style as unorthodox but real. He has no filter and is blunt. He agreed that his emotions can get the better of him in the heat of the moment.
[66] When asked about the text messages he sent to the mother and the emails to her counsel, he did not deny that he sent them. He explained that he was frustrated and angry. He testified that his feelings were hurt. He said that the lack of contact with C.B. and the request that he take a class weighed on him as someone with a mental illness. When asked whether or not he understood that the comments were hurtful to other people he replied, “I do, but I am hurting too.”
[67] When L.L. was asked about his treatment of the volunteer supervisor J.R., he admitted that he sent her the texts. However, he denied that he was abusive to her. He described her as being abusive to him because she was telling him what to do. In his view she had no right to tell him what to do with his son. (i.e. return his son on time). He defended his text message to her criticizing her son because he doesn’t work.
Part Five – Report from the Office of the Children’s Lawyer
[68] On June 22, 2021, Justice Jones requested the involvement of the OCL. An OCL clinician conducted an investigation and provided a report pursuant to s.112 of the Courts of Justice Act. It was admitted into evidence on consent of the parties.
[69] As part of her process, the OCL clinician did the following:
a) Interviewed the mother;
b) Interviewed the father;
c) Observed an interaction between the mother and C.B.;
d) Observed an interaction between the father and C.B.;
e) Conducted two interviews with C.B.;
f) Interviewed professionals involved with the mother and C.B.: Dr. Florindo (S.B.’s doctor), Ms. Singh (Lumenus worker), Ms. Burg (Lumenus manager), Dr. Govan (C.B.’s pediatrician) and Dr. Weiss (C.B.’s Youthdale psychiatrist);
g) Reviewed notes provided by Dr. Malik (the father’s doctor) and connected with Ms. Lucente (the father’s housing worker).
[70] In her report the OCL clinician commented on her direct communications with the father as follows:
Throughout the evaluation, L.L. communicated verbally and through email and made a number of demeaning and derogatory comments about S.B. and her children, including that S.B. has never raised a successful child or did anything to better her life or the life of her children, that she is a “failure”, that she has ruined the other children’s lives and is now trying to ruin C.B.’s life, that C.B.’s older siblings have social issues and depression and that S.B. should not have children if she wanted C.B. to be an “unemployed loser”. Stating that he is the better parent, L.L. said he has the answers for C.B. and that his children are more successful.
From his comments it would appear that L.L. does not seem to understand the importance of C.B.’s relationship with his mother and siblings, the only family he has ever lived with and with whom he seems to have a strong connection. That L.L. has continued to be critical and insulting to S.B. is very concerning and suggests a lack of decency and good judgment. Given L.L.’s angry, belittling and volatile behaviour and rude language in his relationships and/or interactions with others over the years, S.B.’s concerns and fears about him seem reasonable.
[71] The OCL clinician summarizes her interviews with C.B.’s professional care providers as follows:
C.B. is 6 years old and enrolled in a day treatment school program due to a diagnosis of ADHD and very challenging behaviours. Ms. Singh, his school case worker, reported that his behaviour had improved, but said virtual learning was very hard for C.B. last year, he still is very sensitive to noise, feels distressed with yelling, is sensitive to touch and texture and finds transitions hard. Similarly, Ms. Burg, the program manager, said that C.B. responds best with minimal distraction, individual attention and positive reinforcement and noted that when C.B. is anxious and senses too much noise, he may cover his ears and when he’s uncomfortable, he may fidget, hide and refuse to participate. Ms. Burg reported that C.B. has a sensitivity to loud noises, has some difficulties around transitions and with Zoom learning and responds best when adults use a calm, soothing tone and follow his lead.
[72] The OCL clinician reported that C.B. told her that his father yells loudly at him and his brothers, which sometimes makes him fearful and hurts his ears so he covers them. C.B. also reported that his father yells at him when he does not want to visit.
[73] The OCL clinician also reported that during the investigation, she had a conversation with the father when he became exasperated, spoke quickly, had difficulty listening, interrupted and yelled. The father explained that he repeats things, speaks loudly and yells in order to “get things done” and so that people will listen.
[74] The OCL clinician commented on the father’s attitude to the mother:
Given that the professionals have identified areas where C.B. struggles and pointed out his responses to discomfort, it remains a concern that L.L. has continued to blame S.B. for C.B.’s behaviours, particularly because there are no current concerns with S.B.’s parenting ability or ability to care for C.B.
The parties have different approaches but given that S.B. has been primarily responsible for C.B., L.L. would benefit from listening and making adjustments to his own behaviour instead of criticizing S.B.
[75] The OCL clinician’s report concluded as follows:
Stability, consistency, predictability and safety are necessary for C.B. It is also important for C.B. that his parents show one another some respect and support for the relationship that C.B. has with each of them as he deserves to have a positive and meaningful connection with both his mother and his father. However, at this time, it would appear that L.L. has continued to show anger and hostility towards S.B., with little regard for her role as C.B.’s mother and prime caregiver.
Given that C.B. has continued to display such challenging behaviour around parenting time, further information and exploration is needed in order to understand the underlying reasons for these behaviours and C.B.’s wishes for parenting time, in order to create a positive arrangement whereby parenting time is healthy and successful for C.B. and L.L.
[76] The OCL clinician’s recommendations were as follows:
a) Further professional support and involvement be considered in order to explore C.B.’s social, behavioural and psychological needs and to help L.L. and C.B. continue to strengthen their relationship. The professionals involved may be able to suggest parenting time recommendations with the goal of resuming consistent and positive parenting time for L.L. and C.B.
b) In the interim, it would be recommended that any parenting time or contact, including phone or video conversations, between L.L. and C.B., be at S.B.’s discretion and in accordance with C.B.’s wishes and needs.
c) L.L. continue to stay connected to the professionals he is involved with, regularly attend appointments and follow through with recommendations.
d) L.L. engage with a psychiatrist, psychotherapist, or in another therapeutic relationship in order to receive support and manage his mental illness.
e) L.L. continue to seek resources and supports to gain a better understanding of C.B.’s special needs and follow up with referrals and recommendations.
f) The parents use appropriate language with one another and communicate in a positive and child-focused manner. They could consider using a communication tool such as Our Family Wizard in order to reduce the possibility of conflict between them.
Part Six – Legal Considerations
[77] Any proceeding with respect to children is determined with respect to the best interests of the particular child before the court in accordance with the considerations set out in section 24 of the Children’s Law Reform Act. The court has considered these factors, where relevant.
[78] Subsection 24(2) of the Act provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests.
[79] Subsection 24(3) of the Act sets out a list of factors for the court to consider related to the circumstances of the child. It reads as follows:
Factors
(3) Factors related to the circumstances of a child include;
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require person in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
[80] Subsection 18(2) of the Act defines “family violence” as conduct that does not need to constitute a criminal offence and includes,
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself of 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.
[81] Subsection 24(4) of the Act further specifies the factors relating to family violence that are to be considered. They are as follows:
(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.
[82] Subsection 24(6) of the Act states that in allocating parenting time, the court shall give effect to the principle that the child should have as much time with each parent as is consistent with the best interests of the child.
[83] Subsection 33.1(2) of the Act addresses the importance of the parties protecting children from conflict. It sets out that 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.
[84] A starting point to assess a child’s best interests when making a custody or access order is to ensure that the child will be physically and emotionally safe. It is also in the child’s best interests when making an access order that his or her caregiver be physically and emotionally safe. See: I.A. v. M.Z., 2016 ONCJ 615.
[85] In McLellan v. Birbilis, 2021 ONSC 7084, Justice Nicole Tellier writes the following about the new definition of family violence at paragraph 27:
The new definition provides a non-exhaustive list of conduct that constitutes family violence. This assists the court in identifying the nature and extent of the family violence. The definition does not preclude the court from finding that other conduct fits within its meaning, such as cyber-bullying for example.
[86] This was endorsed in S.B. v. J.I.U., 2021 ONCJ 614 where the court wrote:
It is evident from the father’s social media postings that he is intent on hurting, humiliating and intimidating the mother. This is cyberbullying. It is family violence.
Part Seven – Analysis
[87] The court recognizes that the father is strongly focused on spending time with his son and that his lack of contact with C.B. over the past year has caused him frustration and sadness.
[88] However, the court must consider what parenting time order is in the best interests of C.B.
[89] The court makes the following findings of fact on the evidence:
a) C.B. is a young child with complex special needs. C.B. has been diagnosed with Attention Deficit Hyperactive Disorder (“ADHD”), Oppositional Defiant Disorder (“ODD”) and Sensory Processing Disorder (“SPD”). C.B. also has severe separation anxiety and has difficulty sleeping through the night. He continues to require specialized support. C.B. requires stability and consistency in his care to assist him with developing self-regulation and allowing him to progress with his education.
b) The mother has demonstrated that she is an excellent parent to C.B. She has taken steps to connect him with significant resources and support. C.B. has seen a psychiatrist, has been assessed and has had access to a treatment school program through Lumenus. The mother works cooperatively with the professionals assisting her with her son.
c) C.B. requires parents who are educated with respect to his needs and can meet them consistently between households.
d) The father repeatedly stated that he had no information with respect to his son beyond an ADHD diagnosis. However, the January 2019 court order provided him with the right to contact all third parties involved with C.B. (school, medical, psychological treatment) directly. He simply failed to do so. Moreover, the OCL report and the mother’s trial affidavit identified C.B.’s complex needs with specificity. The father failed to review these available documents in preparation for his testimony at trial.
e) The father has difficulty regulating his emotions. When he experiences frustration, he can respond by yelling and speaking loudly. He admits that this tendency is part of his parenting style. This tendency is problematic due to C.B.’s sensory sensitivity. Moreover, C.B. has his own challenges with self-regulation and requires a parent with the ability to maintain a calm and soothing demeanour and household.
f) The mother testified that C.B. is resisting his visits with his father. The OCL clinician interviewed C.B. who confirmed that he did not like his father’s yelling. This is the best evidence before the court with respect to C.B.’s current views and preferences.
g) The father’s frustration and anger has also led to extremely abusive communications with the mother. His pattern of abusive texts the mother introduced in evidence constitute cyber-bullying and are evidence of family violence. They reflect father’s impulsivity and immaturity. The court finds that this repeated direct expression of his contempt for the mother was intended to undermine her and to harm her psychologically.
h) The father’s profound contempt for the mother reflected in his text messages was also in evidence in his communications with the OCL clinician in 2022. Throughout the OCL investigation in 2022, the father communicated verbally and through email and made a number of demeaning and derogatory comments about the mother and her children, including that the mother has never raised a successful child or did anything to better her life or the life of her children, that she is a “failure,” that she has ruined the other children’s lives and is now trying to ruin C.B.’s life, that C.B.’s older siblings have social issues and depression and that the mother should not have children if she wanted C.B. to be an “unemployed loser.”
i) The father’s frustration has also led to abusive communication with J.R., an individual who voluntarily agreed to assist with supervision of his parenting exchanges. The father’s texts to J.R. are troubling and completely inappropriate. They reflect a total lack of gratitude and appreciation for her role in facilitating his parenting exchanges with C.B. His treatment of this access assistance is also evidence of poor judgment. It does not give the court confidence in his willingness to have his exchanges supervised in a future order.
j) The father’s frustration has also led to abusive communications with professionals involved with his family. He sent repeated racist and demeaning emails to the mother’s counsel. Multiple emails to Mr. Leung include outrageous racist taunting and name-calling. This is further evidence of father’s poor judgment, impulsivity and immaturity.
k) The father was also unable to communicate appropriately with the OCL clinician. The OCL clinician reported that during the investigation, she had a conversation with the father when he became exasperated, spoke quickly, had difficulty listening, interrupted and yelled.
l) The father lacks insight into the impact of his behaviour on others. He casts himself as a victim of others and is primarily focused on his own hurt feelings. He freely admits but does not take responsibility for the damaging impact of his abusive communications. This makes him a poor candidate to change his abusive behaviour in the future.
m) The father has a very high opinion of his abilities as a parent and employee. He frequently castigates others for being beneath him in terms of their educational or employment achievements. He also judges others based on the success of their children.
n) The father is not currently connected to any therapeutic supports to assist him in understanding his own deficits as a co-parent to S.B. and as a parent to C.B. The father was encouraged to access family counselling supports through C.B.’s involvement with Lumenus, but failed to do so in a timely manner and these supports are no longer available.
[90] The court carefully considered the viability of a specified parenting schedule with supervision for the father. However, the particular circumstances of this case dictate that such an order is not in the best interests of C.B.
[91] C.B. is a child who is young and fragile with very complex needs. His need for safety, stability, consistency and security is paramount. He requires co-parents who are working together cooperatively to maintain households that are calm and consistent and allow him to regulate his emotions.
[92] The current hostility flowing from his father towards his mother does not allow for the level of cooperation required for C.B. to thrive while transitioning regularly between these two homes. There is no evidence of the father’s ability or willingness to communicate or co-operate with the mother on matters affecting C.B. Rather, there is evidence of family violence in the form of the father’s cyber-bullying of mother. Further, there is recent evidence of the father denigrating the mother’s parenting capacity to third party professionals (the OCL clinician) involved with the family.
[93] The father has had ample opportunity to educate himself about C.B.’s needs but has taken limited steps to do so. He blames others for not providing him with information that he had the legal right to obtain since Justice Zisman’s January 10, 2019 order.
[94] The father’s lack of understanding of C.B.’s complex needs is not mitigated by an openness to guidance from the mother. He refuses to afford her any respect as a co-parent and is not willing to learn and benefit from her experience as primary caregiver of his son.
[95] C.B. is currently resisting regular visits with his father due to his father’s yelling during the visits. The father has no insight into how his behaviour with the mother and with C.B. need to be improved before a regular parenting schedule is possible.
[96] The court finds that the current circumstances do not merit an order for specified parenting time for the father. The order sought by the mother, that parenting time with the father be at her discretion and in accordance with C.B.’s views and needs is in his best interests at this time. This discretion allows the mother to be fully responsive to C.B.’s evolving views and special needs. C.B. will not be subjected to a set parenting time schedule that disrupts his stability and progress.
[97] The court is trusting the mother to be reasonable in arranging for safe contact for C.B. with the father where possible. This is based on the evidence before the court of the mother’s past conduct in prioritizing C.B.’s needs and making child-focused decisions.
[98] This does not mean that the father should never have a specified parenting time schedule with C.B. It is the court’s hope that the father does take constructive steps in his life which would give the court some assurance that regular parenting time would benefit C.B. The court hopes that the father and the child will eventually develop a positive relationship.
[99] The court notes that the father expressed a strong desire to have a relationship with C.B. He has also emphasized his openness to education and the skills he continues to develop in his professional setting. At this stage he has to back up his words with his actions. The onus is now on the father to show that he has made constructive and sustained change before specified parenting time schedule is ordered.
[100] The court will want to see the father to do the following before making a specified parenting time schedule:
a) Contact third party professionals involved in C.B.’s life in order to educate himself with respect to C.B.’s special needs and his educational progress. Keep up to date on the child’s needs and progress;
b) Refrain from all abusive communications, in person or by text message or email, with the mother or any other professionals involved with the family;
c) Communicate respectfully in response to the mother to make arrangements to have parenting time (either in person or online) with C.B. that she offers;
d) Seek the mother’s advice and guidance with respect to how to best care for C.B. during the parenting time she approves;
e) Respect any parameters set by the mother with respect to parenting time with C.B. (level of supervision, location, duration and frequency);
f) Attend for therapy with a professional trained to address his abusive behaviour and anger management issues. He should provide a report from his therapist that he has meaningfully participated in this therapy and that sets out any gains he has made;
g) Demonstrate that he has learned and is applying healthier methods to deal with his stress and frustration;
h) Demonstrate an ability to accept responsibility for his actions;
i) Be available to participate in family counselling with the mother to work on improving their communication and ability to co-parent C.B.
[101] If the father is able to substantially take these steps over the next year, the court will consider this to be a material change in circumstances. If he takes these steps (and if an agreement cannot be reached with the mother), the court encourages the father to bring a motion to change for an order for specified parenting time with C.B.
Part Eight – Conclusion
[102] An order shall go as follows:
The respondent father’s parenting time with C.B. will be at the discretion of the applicant mother and in accordance with the child’s wishes and needs.
[103] If the mother seeks costs, she shall make written submissions by February 10, 2023. The father will then have until February 24, 2023 to make a written response. The written submissions shall not exceed three pages (not including any offer to settle or bill of costs) and shall be delivered to the trial coordinator’s office.
Released: January 6, 2023 Signed: Justice Szandtner