Ontario Court of Justice

Date: 2024-02-29 Court File No.: Woodstock D218/17

Between: R.S.C., Applicant — AND — C.M.R., Respondent

Before: Justice S. E. J. Paull

Trial held on: September 25-27, and December 8, 2023, January 26, 29, 2024 Reasons for Judgement on: February 29, 2024

Counsel: R. Sandy Bruce, counsel for the applicant James G. Battin, counsel for the respondent

PAULL J.:

[1] The parties are the parents of one child, K.R. born […], 2016 (now seven years old). C.M.R., K.R.’s mother, brought a motion to change seeking to vary the decision-making order of February 26, 2018, and the parenting time order of October 5, 2020. She sought sole decision-making and primary residence with regular parenting time to the child’s father, R.S.C. He responded seeking to have C.M.R.’s motion to change dismissed and that she start paying child support.

[2] At the end of trial, and after hearing all the evidence, the parties’ positions had changed somewhat. R.S.C. was no longer contesting that there had been a material change in circumstances and supported some adjustments of the order to reflect the current arrangements. C.M.R. sought joint decision-making but supported a shared parenting arrangement.

[3] The parties are agreeing that holidays including the school summer holiday be shared equally. As a result, along with the issue of decision-making, this trial focused on where K.R. resides during the school week. There are also claims for child support depending on the parenting time order.

The Law

[4] Section 29 of the Children's Law Reform Act (the Act) provides the statutory authority for changing a parenting order on either a temporary or final basis. It states:

A court shall not make an order under this Part that varies a parenting order or contact order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order.

[5] The Supreme Court of Canada decision in Gordon v. Goertz (1996), 19 R.F.L. (4th) 177 S.C.C. sets out a two-stage process for the court to conduct in motions to change custody or access (now decision-making and parenting time) as follows:

1. First, the parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.
2. If the threshold is met, the court must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

[6] The Ontario Court of Appeal in Licata v. Shure, 2022 ONCA 270 confirmed the following:

[21] The Supreme Court of Canada set out the test for determining whether there has been a material change of circumstances in Gordon v. Goertz, [1996] 2 S.C.R. 27, at paras. 10-13. This court, in N.L. v. R.R.M., 2016 ONCA 915, 88 R.F.L. (7th) 19, at para. 29, summarized that test as having three components:

1. a change in the condition, means, needs or circumstances of the child and/or or the ability of the parents to meet those needs;
2. the change must materially affect the child; and
3. the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

[7] On a motion to change, the court has the option of restricting changing the existing order to address a specific issue, while maintaining its integrity. Elaziz v. Wahba, [2017] ONCA 58.

[8] If a material change in circumstances is found the court must then determine what decision-making and parenting time order is in the child’s best interest. 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 Act).

[9] 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.

[10] The following non exhaustive list of factors have been articulated in the case law as basic principles with respect to the best interest test:

1. The child’s best interests are not merely “paramount” – they are the only consideration in this analysis: Gordon v. Goertz, [1996] 2 S.C.R. 27 at para. 28; Mattina v. Mattina, 2018 ONCA 641
2. The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. Gordon v. Goertz, [1996] 2 S.C.R. 27.
3. No one factor in the statutory definition of a child’s best interests is given statutory pre-eminence. Wilson v. Wilson, 2015 ONSC 479.
4. A young child with attachments to both parents needs sufficient contact with both, without prolonged separations to maintain a meaningful and close relationship with them. Van Den Driessche v. Van Den Driessche, 2011 CarswellMan 255 (Q.B. Family); Wilson v. Wilson, 2015 ONSC 479.
5. In resolving custody disputes, emphasis must be placed on the critical importance of bonding, attachment and stability in the lives of young children. Barnes v. Parks
6. The court should consider the level of hostility and the extent to which that stability may undermine the child’s stability. Wilson v. Wilson, 2015 ONSC 479.
7. The court should consider how the person seeking access has used contact for a purpose collateral to the child’s best interests. Lusher v. Lusher (1988), 13 R.F.L. (3d) 201 (Ont. Prov. Ct – Family).
8. Financially supporting one’s children in a responsible manner is an important part of being a parent. The failure to do so is a factor militating against a joint custody order as it demonstrates poor judgment and an inability to prioritize the child’s interests. Jama v. Mohamed, [2015] ONCJ 619; P.H. v. T.J., 2017 ONCJ 166; McBennett v. Danis, 2021 ONSC 3610; J.T. v. E.J., 2022 ONSC 4956; Shokoufimogiman v. Bozorgi, 2022 ONSC 5057.
9. 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 a child's best interests when making an access order that his or her caregiver be physically and emotionally safe. I.A. v. M.Z., 2016 ONCJ 615.
10. The best interest analysis is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. Phillips v. Phillips, 2021 ONSC 2480. Pereira v. Ramos, 2021 ONSC 1736.

[11] The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275 sets out the following principles in determining whether a joint decision-making responsibility order (formerly custody order) is appropriate:

1. There must be evidence of historical communication between the parents and appropriate communication between them.
2. It can’t be ordered in the hope that it will improve their communication.
3. Just because both parents are fit does not mean that joint custody should be ordered.
4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.
5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise, they must be able to be addressed on an ongoing basis.
6. The younger the child, the more important communication is.

[12] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. Griffiths v. Griffiths 2005 ONCJ 235, 2005 CarswellOnt 3209 (OCJ). The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. Warcop v. Warcop.

Background and Evidence

[13] The final order of February 26, 2018 was made on consent and included that R.S.C. have custody with C.M.R. having access as agreed, “in consultation with the Children’s Aid Society of Oxford County if they are involved". R.S.C. was to consult on major decisions but had the final say, and C.M.R. was to advise when she obtained employment.

[14] That order was varied on consent on October 5, 2020 to include that C.M.R.’s access was changed to include alternate weekends and the sharing of holidays and special occasions.

[15] During this motion to change the parties consented to a temporary order on November 9, 2022 varying C.M.R.’s parenting time as follows:

a. Week one-Friday (or Thursday if there is no school on Friday) at 4:30 PM with drop off at school on Monday morning (or at home at 4:30 PM if there was no school). b. Week two-Tuesday with a pickup at school to 7:30 PM. c. C.M.R. was permitted to communicate with the child’s school and doctors and obtain information about the child without the need for R.S.C.’s consent.

[16] C.M.R. acknowledges a serious drug addiction and general inability to parent at the time of the first order but submits that she is now stable. She has concerns with R.S.C. including not following through with regular school attendance for K.R. and by not communicating or sharing important information with her. She also alleges that R.S.C.’s mother provides the primary care and that R.S.C. in fact resides in London and not at the residence noted in his pleadings in Tillsonburg.

[17] R.S.C. disputes the concerns and while at the end of the trial he did not dispute that there had been a material change in circumstances he took the position that the current circumstances did not warrant a wholesale change of the lengthy status quo. He does acknowledge that K.R.’s school attendance and academic progress have not been satisfactory. He pointed to ongoing CAS involvement with C.M.R. and her partner as evidence that there are still concerns with her stability, which have been long-standing.

[18] C.M.R.’s testimony included the following:

1. She acknowledged consenting to the previous orders and that they were in the child’s best interest of the time. At the time of the first order, she acknowledged that she had been using methamphetamine every day for several years which impacted all aspects of her life.
2. At the time of the first order in 2018 she had two older children, Li. age 14 and Lu. age 13, both who were with their father as a result of voluntary arrangements with the CAS. They remain with their father, but they have a positive and flexible arrangement and she sees them frequently.
3. She acknowledged in cross-examination that the historic verified protection concerns in addition to her drug addiction were excessive school absences and inappropriate lunches related to her older children, and lack of supervision. She also acknowledged domestic violence with a former partner. As a result of these concerns her older children were no longer in her care starting in August 2017.
4. She acknowledged using methamphetamine during pregnancy and while breast-feeding K.R. and not being forthright at the time about her usage. It was her second time in rehab starting in 2019 when she became engaged in her recovery. She testified that she has not used in several years and still attends meetings at NA and AA.
5. She and R.S.C. never lived together and K.R. was with her for the first nine months of her life until her family found out about her drug use. K.R. went to live with her father in or about January 2018 and has remained in his primary care since then.
6. She alleges that R.S.C. never consulted about important issues regarding K.R. and reacts with hostility when she does seek information.
7. At the time of the second order she was maintaining abstinence, and CAS provided confirmation on December 16, 2020 that it was closing its file. She had a younger son, Kr.R. born […], 2019 who has remained in her care. The father of Kr.R. is not involved and in January 2022 was adopted by her current partner M.N.
8. She began living with M.N. after they were married on March 17, 2022. They reside in Simcoe.
9. Family and Children’s Services of Grand Erie (“FCSGE”) are currently involved as a result of M.N. being hospitalized for eight days following a mental health breakdown in the summer of 2023. She believes he was diagnosed with a delusional disorder. Following treatment he is much improved and has never been a safety risk to the children.
10. She is concerned that K.R. misses a lot of school. R.S.C. has not provided her with report cards and she was unable to get information from the school until November 2022 when the temporary order was made giving her direct access.
11. She is also very concerned with K.R.’s last report card which showed worsening attendance and significant academic struggles. She testified that she did not receive a copy from R.S.C. when she asked for it until the summer of 2023.
12. If K.R. were to remain at her present school in Tillsonburg she could drive her during the times K.R. resides with her which takes approximately 30 minutes. She has already done this pursuant to the current interim order on Monday mornings until recently when her work schedule changed.
13. She was aware that K.R. saw a doctor in July 2023 for an assessment for ADD but that R.S.C. refused to provide the name and said that she would get this information through the court process.

[19] M.N. testified on behalf of C.M.R. He stated that they began dating in July 2021 and were married in March 2022 and that he has a great relationship with K.R. and that they enjoy spending time together. He was diagnosed with delusional disorder, anxiety/depression, and borderline personality disorder in August 2023 following a psychosis and involuntary hospitalization for eight days. He was out of the family home until August 22, 2023 when he returned pursuant to a Safety Plan agreed to with FCSGE. He states that he is now on medication and cooperating with the CAS and the Safety Plan in place.

[20] Janice Jackson, C.M.R.’s AA sponsor, testified that she has been her sponsor for several years and she speaks to her regularly. She testified that when C.M.R. had a relapse by consuming alcohol in early 2023 she immediately told her and accessed her supports. Before that her understanding was that C.M.R. had relapsed approximately 2 or 2 ½ years previously. She spoke positively of C.M.R. and her consistent efforts and stated that C.M.R. now helps others by acting as a sponsor.

[21] Erin Elston testified on behalf of C.M.R. as follows:

1. She worked with C.M.R. providing mental health and addictions counselling through a nurse practitioner led clinic and Ingersoll in 2019 until C.M.R. moved out of the county sometime in late 2020 or early 2021.
2. She observed C.M.R. to work hard and make gains by obtaining housing, developing a positive social network, self advocating with professionals, and developing positive routines and activities. She found C.M.R. to be good at maintaining timelines and demonstrating progress.
3. C.M.R. identified to her several relapses during her work with her, one for methamphetamine and several for alcohol but that C.M.R. was not in a caregiving role at the time and acknowledged and addressed them appropriately. She never felt a duty to report any concerns regarding C.M.R. to protection services during her time working with her.

[22] Laura Wilson, a worker with Oxford CAS, testified that she started working with C.M.R. in 2019 when she was pregnant with Kr.R. The goals of the service plan focused on her substance use and abstinence, and maintaining contact with supports. She confirmed that Oxford CAS closed its file in February 2021 on the basis that there were no ongoing protection concerns with C.M.R.’s care of Kr.R. at that time. She has never met R.S.C. or K.R.

[23] A.L. testified on C.M.R.’s behalf. She lives in Simcoe and has been a long-time friend of C.M.R.’s. She has observed C.M.R. with her children many times and never observed any concerns. She offered support to C.M.R. during M.N.’s psychosis in August 2023, and was aware the police were involved to retrieve Kr.R. from M.N., who was acting strangely and did not drop Kr.R. off at daycare.

[24] J.R. testified on behalf of C.M.R. as follows:

1. She is R.S.C.’s former partner and they lived together for approximately two years from 2018 to 2020. They had one child together, A.R.-C. born in 2019. She had a close relationship with K.R.
2. She viewed R.S.C. as abusive and their relationship as toxic. R.S.C. has a drinking problem and came home drunk most nights and was physically abusive. She alleged that R.S.C. would drink and drive with A.R.-C. and K.R. in the car and that he used excessive physical discipline on K.R.
3. They are involved in ongoing and contentious litigation in London, Ontario.
4. Following separation she saw K.R. approximately once per month, however, has not seen her since January 2021.
5. She acknowledged that the address R.S.C. used for their court case was in Tillsonburg. She had no first-hand knowledge that he lived elsewhere.
6. She acknowledged that since separating in 2020 and before their court case started in 2022 that he voluntarily paid her $300 a month in child support and that there are no arrears of these payments.
7. There was police involvement when they separated and since separation but no charges were ever laid.
8. She acknowledged that she and C.M.R. had an agreement to give evidence in each other’s court case against R.S.C. and had discussed some of the issues.

[25] R.S.C.’s testimony included the following:

1. He continues to reside with his mother at her home in Tillsonburg. He has lived with her for approximately 1 ½ years. Prior to that he lived with both his parents in their home in Tillsonburg following his separation from J.R. in 2020.
2. His parents separated and sold that home and he moved in with his mother at her current residence in Tillsonburg where he and K.R. remain.
3. He acknowledges an unsuccessful move with K.R. to St. Thomas for several weeks in early 2022. He had a job opportunity but did not have K.R.’s birth certificate so he could not register her in school. He ended up moving back to his parents’ home in Tillsonburg after several weeks. K.R. did not attend school during this period.
4. He acknowledges K.R. has a lot of school absences and lates and that her academic progress is also a concern. He indicated it is a short walk from his home to her school and that she easily gets sidetracked which results in the significant number of lates.
5. He had K.R. assessed on July 11, 2023 and she was diagnosed with ADHD, which he believes accounts for some of the difficulties getting her to school and with her academic progress.
6. He was of the view that communication with C.M.R. has improved over time as she has addressed her substance use issues but acknowledges that it has not been good for the last year. He is of the view that they can co-parent and both be good parents but he does not believe that primary residence with C.M.R. or a shared parenting schedule is in K.R.’s best interests.
7. He acknowledged that C.M.R. has done well with her rehabilitation and as a result is now an engaged parent, which he felt was positive. He was open to more involvement by her if she remained sober.
8. He disputed J.R.s’ evidence and characterization of him. They continue to be engaged in contentious litigation and he sees their child three weekends per month. They are both seeking primary residence in that proceeding.
9. He denied that he lived in London, Ontario or that his mother was the primary caregiver of K.R. His mother is a school bus driver and not available before and after school.
10. Presently he is concerned with the risks M.N.’s mental health issues have posed which have resulted in ongoing CAS involvement with C.M.R.
11. He has been unemployed and on Ontario Works since December 11, 2022 but he is about to return to work in February 2024 as a welding supervisor.
12. After a long time on the waiting list, he has been finally approved to have K.R. in the before and after-school program which will provide the child care for her so that he can work, and assist in ensuring K.R. is at school regularly and on time.

[26] K.R.’s report cards were entered into evidence. For the 2020-21 school year K.R. was in JK and absent 46 days and late 14 times. For the 2021-22 school year K.R. was in SK and absent 32 days in late 55 times.

[27] By the end of the 2022-23 school year K.R. was absent 22.5 days and late 57 days. The final report noted that all areas needed improvement and that her grades, particularly in the reading/writing area, were in the “D” range which signifies “falling much below provincial standard” or “R” which means extended remediation is required. The report indicated that she was successful socially at school but not academically.

[28] From September 2023 to December 22, 2023 the attendance record indicated that K.R. had 21 absences and 19 lates. She sustained an injury requiring stitches on November 23, 2023 and appears to have missed 6 days of school as a result.

[29] Islay McFadden, a child protection worker with CFSGE for the last 18 years, testified as follows:

1. She has been working with C.M.R. and M.N. since being transferred the file from intake in August 2023.
2. An investigation in early August 2023 verified concerns following a call from the police about M.N.’s mental health and its impact on the family.
3. M.N. was expressing concerns about C.M.R. using drugs and cheating on him but these were not verified and ultimately viewed by the police and CAS as resulting from the psychosis he was suffering at the time.
4. M.N. was “formed” and spent eight days in the hospital in August 2023. He was diagnosed with a delusional disorder and bipolar disorder and a treatment plan was formulated. He was only permitted to return to the home when his mental health was stabilized and he and C.M.R. agreed to a Safety Plan.
5. C.M.R. and M.N. executed the Safety Plan with FCSGE dated August 22, 2023.
6. The Safety Plan was focused on M.N.’s mental health, ensuring a safe environment free of conflict, physical discipline, and drug use. It was a particular concern of the Society that given C.M.R.’s history, that M.N.’s psychosis was brought on by cocaine use according to C.M.R. Among other things the plan required M.N. to leave or C.M.R. and the children to leave if concerns with M.N.’s mental health re-emerged. Other collaterals had also reported ongoing parental conflict between C.M.R. and M.N.
7. On November 7, 2023 there was a subsequent investigation following Kr.R. reporting to several school personnel that his mother had hit him. C.M.R. acknowledged hitting Kr.R. on the front of the head which resulted in him hitting the back of his head on a chair. The worker did not observe injuries to Kr.R.
8. FCSGE verified physical abuse. C.M.R. was struggling with Kr.R.’s behaviour and he had been hitting her. The worker confirmed that his behaviour is an ongoing issue and that he is very “hands-on” and has hit her as well during the home visits.
9. The week prior to her testimony there had been a call from Kr.R.’s school that he had hit another child. An assessment had been undertaken and no counselling was recommended for Kr.R. but it did recommend that C.M.R. engage in programming to learn skills.
10. C.M.R. had her anxiety medication reviewed and the worker requested that C.M.R. take anger management and a parenting course. C.M.R. has since self-referred to these programs.
11. During her investigation following the November 7, 2023 incident she spoke to M.N. and became concerned for his mental health as he was showing the same delusional thinking he had in August 2023. The worker was particularly concerned because his level of anger and upset at C.M.R. remained high even when he was able to acknowledge that his beliefs were not accurate. He was directed to leave the home at that time pursuant to the Safety Plan. He saw his doctor and had his medications adjusted. After two weeks out of the home he was permitted to return.
12. The Society reviews Safety Plans every six months and C.M.R.’s plan is up for review in the coming weeks. The worker confirmed that the Safety Plan will be extended as the original concerns have continued and there was a new concern based on the physical harm finding.
13. As a result of the Society’s involvement with C.M.R. and M.N., the worker has met with R.S.C. and K.R. once per month. She has had six meetings with them at their home in Tillsonburg.
14. The worker found K.R. to be friendly, polite, and kind. In her private conversations with K.R. she never disclosed any concerns with her father but did recently raise concerns about conflict between her mother and M.N., and disclosed a historic conflict that had become physical between them.
15. K.R. also advised the worker that Kr.R. hits her and because they share a bedroom she feels she has nowhere to go sometimes.
16. K.R. consistently and repeatedly expressed to her that she wants to remain living primarily with her father.
17. The worker observed positive interactions between K.R. and both of her parents. She confirmed that there were no protection concerns with R.S.C. but that the excessive lates and absences from school have continued in this school year and are a concern.
18. She confirmed her view that when M.N. is in psychosis he is a risk in the home and presents a danger. Overall, while there are risks present in C.M.R.’s home she believes the Safety Plan is effective and both C.M.R. and M.N. are cooperative with her.

[30] I accept the evidence of Ms. McFadden. She testified in a forthright and responsive manner and remained consistent throughout her examination and cross-examination. She is a professional third party involved with the family pursuant to a statutory duty of the Children’s Aid Society to investigate child protection concerns and work with families to mitigate them. Her professional and independent status lends credence to her evidence.

[31] Further, she has met frequently with the parties and their children and had the opportunity to make the observations that she did, including the views and preferences expressed to her in private interviews with K.R.

[32] Neither party disputed the evidence of Ms. McFadden, Ms. Wilson (Oxford CAS), or the contents of the school records filed.

[33] J.R., father’s former partner, made serious allegations in her evidence about his alcohol use and that he was physically abusive towards her and K.R.

[34] I am mindful that J.R. may have her own motivation to support a narrative that she has a significant stake in. She remains involved with R.S.C. in contentious litigation regarding their own child where both parties are seeking primary residence. She made allegations about abusive behaviour and substance use that were not made by C.M.R. in this case, or identified as historic or ongoing concerns by the workers for Oxford CAS or FCSGE who collectively have been involved with him as a result of C.M.R.’s issues over several years. K.R. has not disclosed any concerns about her father to Ms. McFadden in their private meetings. There was no independent evidence provided at this trial to establish her concerns.

[35] Additionally, there was no evidence that J.R. raised any of these concerns with the police or protection services during their relationship. She testified that the only police involvement was on the date of separation and subsequently.

[36] Finally, I note with concern that J.R. acknowledged that she and C.M.R. had an agreement to testify on each other’s behalf in their respective court cases against R.S.C., and that they also discussed the issues. This is suggestive that her evidence was part of a quid pro quo arrangement which may have influenced her testimony. Taken together, these factors give me concern about the veracity of her evidence. In the circumstances I give it no weight.

[37] C.M.R. has not established that R.S.C. resides in London or that his mother provides the primary care for the child. Only hearsay was offered by C.M.R. and J.R. to support this. There was no direct or admissible evidence to support either of these allegations. Ms. McFadden confirmed in her evidence that she always met with R.S.C. and K.R. at the home in Tillsonburg after school. She also confirmed that R.S.C.’s mother was not present during any of these meetings as she was a bus driver and generally not available before and after school. I am satisfied that R.S.C. resides where he indicates in Tillsonburg and that he is the primary caregiver of the child.

Analysis

[38] The onus is on the moving party to establish a material change in circumstances on a motion to change.

[39] R.S.C. took the position at the end of trial that he was no longer disputing that there had been a material change in circumstances. Even had he not done so the court would have found a material change in circumstances based on his acknowledged failure to ensure that K.R.’s academic needs were met. Her excessive lates and absences have not been addressed over several years, and she is clearly continuing to struggle academically.

[40] Further, I am satisfied that, despite significant challenges that will be outlined below, that C.M.R. has continued to work hard at maintaining abstinence, and that when she did relapse she addressed it openly and appropriately and in a manner that did not impact her children. All her supports spoke of C.M.R. as being cooperative and engaged in her recovery. While maintaining her abstinence is a term of the Safety Plan, Ms. McFadden confirmed that the Society’s present concerns did not include C.M.R.’s substance use.

[41] These changes since the last order, particularly related to K.R.’s education, are material to the child and the parents’ ability to meet her needs, and were not foreseeable when the orders were made as the child only started school in September 2020.

[42] On the basis of a finding that there has been a material change in circumstances, the court is then tasked with conducting a fresh inquiry into the best interests of the child considering the entirety of the circumstances.

[43] The issues to be decided are decision-making and parenting arrangements during the school week. As previously noted the parties have agreed to a sharing of other parenting time. R.S.C. seeks to maintain the current temporary schedule with some slight changes in the times and to maintain sole decision-making. C.M.R. seeks joint decision making with a week about parenting schedule.

[44] There are a number of examples where each party’s level of communication and cooperation has been insufficient and not child focused including the following:

1. C.M.R. did not make R.S.C. immediately aware of the serious issues with M.N. or that FCSGE had required a Safety Plan until providing a copy of it just prior to trial.
2. C.M.R. was required pursuant to the current final order to provide income disclosure when she obtained employment and she acknowledged that she failed to do so despite being employed, most recently as a PSW.
3. R.S.C.’s short-lived move to St. Thomas was not only ill planned but on little notice to C.M.R., and resulted in K.R. being out of school for several weeks. Nor should R.S.C. have made such a move without confirming her enrolment in a new school in advance. C.M.R. offered to get the birth certificate which R.S.C. refused, and C.M.R. refused to give R.S.C. the information he needed to get the birth certificate himself. Both parties’ evidence made it clear they were unable to work together on the issue of obtaining a birth certificate when it was clearly in the child’s best interest that they do so.
4. R.S.C. was required pursuant to the current order to consult with C.M.R. on major decisions and he has not always done so. C.M.R. was made aware that K.R. was being assessed by a doctor in the summer of 2023 but when she asked for details R.S.C. refused and stated that she would receive it through the “court process”. This position by R.S.C. was confirmed in the Our Family Wizard records filed.
5. However, C.M.R. had a temporary order dated November 9, 2022 which permitted her direct communication with the school and doctors. While she was aware of K.R.’s poor attendance at school she testified she was not aware of the extent of her academic issues in the 2022/23 school year. She testified in direct examination that she did not receive a copy of the report card from R.S.C. when she asked and only received it in the summer of 2023. She had the benefit of a temporary order of November 9, 2022 and could have obtained this information independently at any point and it was left unclear whether she ever exercised the ability to speak directly to the school about the academic challenges, or the doctor that assessed K.R. when she did become aware of the contact information.

[45] Despite these issues there are other factors which establish that there are areas where the parties have had a reasonable level of communication and cooperation including the following:

1. Neither parent has a criminal record and there is no evidence of police involvement as a result of any conflict they have had.
2. They agreed that K.R. transitions well between their homes despite changes in the schedule.
3. They agreed they have been flexible with the schedule at times when required.
4. All the court orders to date have been made on consent and the parents have successfully used mediation services in the past to resolve issues.
5. C.M.R. has worked hard to address her addiction issues. R.S.C. acknowledged this and felt that C.M.R. was a more engaged parent now. As a result, he was of the view that they could successfully co-parent.
6. The parties had already agreed to a shared schedule during the summer holidays and implemented it successfully in the summer of 2023, and agreed to maintain it going forward.
7. They each acknowledge that K.R. has a positive relationship with the other parent. Both parties have been generally supportive of K.R.’s relationship with the other parent.

[46] While there is room for improvement by both parties, I find that there is a reasonable measure of communication and cooperation in place and that there is a basis to conclude that this is possible in the future.

[47] While there has been the status quo of R.S.C. having sole decision-making for several years I am of the view that K.R.’s best interests support a joint decision-making order at this time. While each party has their strengths, they each have deficiencies, and I am not satisfied that K.R.’s interests would be best served by either party exercising sole decision-making.

[48] R.S.C.’s handling of K.R.’s schooling and his communication with C.M.R. on major issues pursuant to the current sole decision-making order falls well short of satisfactory. He acknowledges these failures but has taken few steps to address them. Given K.R.’s attention deficit issues that have now apparently been identified and her serious academic struggles, regular and timely school attendance is important. Yet, as confirmed by Ms. McFadden, as of January 2024 her lates and absences remain unacceptably high.

[49] It was also a concern that R.S.C. testified that he was not aware if K.R. was on an IEP, and as of January 26, 2024 when he gave evidence, he was not able to recall the name of K.R.’s teacher.

[50] However, R.S.C. now has a reasonable plan to ensure K.R. attends school regularly. After a lengthy period on the waiting list K.R. has now been approved for the before and after-school program. This not only permits R.S.C. to return to work but will help ensure K.R. is present regularly and on time at the start of the school day.

[51] Further, both parties apparently discussed the need for a tutor for K.R. at one point but no supports were engaged.

[52] As will be explored in greater detail below, there are serious concerns present in C.M.R.’s home, and it appears that she has not taken the opportunity she had since the temporary order to be more engaged in K.R.’s academics to the extent one would expect. The CAS is actively involved with her and there has been recently verified concerns with both her and M.N. M.N. was once again directed to leave the home temporarily in November 2023 and C.M.R. has been directed to attend parenting programs. It was the Society worker who recognized there were concerns with M.N.’s mental health in November 2023 when she was investigating the referral regarding C.M.R. hitting Kr.R. It is a concern that M.N.’s deteriorating condition was not brought to the worker’s attention by C.M.R., or that she did not leave the home with the children pursuant to the Safety Plan at the time.

[53] Both parties have their strengths and deficiencies. In the circumstances, K.R.’s best interests support C.M.R. being more formally involved in decision-making under a joint decision-making order, although it remains appropriate that R.S.C. have final say after meaningful consultation if there is disagreement.

[54] The test for determining parenting time is also what order is in the best interests of the child.

[55] Subsection 24 (6) of the Act 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.

[56] In Knapp v. Knapp, 2021 ONCA 305, the court set out 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.

[57] In 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 Act. On an appeal of a case heard before the March 1, 2021 amendments to the Act, the appeal court found that it did not have to consider the maximum contact principle – but, in any event, the trial judge had properly considered it.

[58] In Bressi v. Skinulis et al, 2021 ONSC 4874, Justice Andrea Himel wrote as follows:

[21] There is no presumption in favour of joint parenting and the term “maximum contact” is no longer found in the CLRA. The legislation states in that: “in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.” [22] Clearly the idea of a presumption in favour of one type of parenting order is anathema to the court’s unrelenting focus on the child’s “best interests.” The most one can say is, all things being equal, the child deserves to have a meaningful and consistent relationship with both of their parents.

[59] While I am satisfied that K.R. enjoys the love and support of both parents a shared parenting plan is not in her best interests for the following reasons:

1. The history of care of the child involves a lengthy status quo of her living with her father. She has resided in his primary care since January 2018.
2. There have never been any verified protection concerns with R.S.C. and the historic and ongoing CAS involvement has only related to C.M.R.
3. Other than the academic concerns there is no evidence that R.S.C. has not consistently and adequately met K.R.’s needs.
4. While C.M.R. is presently stable she has a serious history of substance abuse. She acknowledged a history of daily methamphetamine use including while pregnant and breast-feeding K.R.
5. There are ongoing and serious protection concerns in C.M.R.’s home. C.M.R.’s partner has significant mental health issues which have resulted in a Safety Plan with FCSGE which require him to leave the home in certain circumstances. In August 2023 he was involuntarily hospitalized and required by the Society to leave the home. During this trial in November 2023 he was again directed to leave the home temporarily and the worker expressed particular concern for his level of anger towards C.M.R.
6. As previously noted, it was a concern that C.M.R. did not alert the worker of the problem with M.N.’s deteriorating mental health in November 2023 or leave the home with the children pursuant to the Safety Plan. The worker identified the problem while investigating Kr.R.’s disclosure that C.M.R. had hit him.
7. During this trial FCSGE has verified a further protection concern in C.M.R.’s home of physical abuse as a result of her striking Kr.R. She was directed to parenting and anger management programs.
8. Kr.R.’s behaviour continues to be a particular challenge for C.M.R. and he has been physical with her, K.R., Ms. McFadden, and another child at school.
9. K.R.’s consistent views and preferences as expressed independently and privately to Ms. McFadden are clear that she wishes to remain in the primary care of her father.
10. K.R. expressed that Kr.R. sometimes hits her and since they share a room K.R. feels that she has nowhere to go sometimes. She also identified conflict between her mother and M.N. which Ms. McFadden testified had been a concern also raised by collaterals involved. Despite K.R.’s young age, in the circumstances her views and preferences are reasonable and entitled to significant weight.

[60] While K.R. is clearly bonded with both her parents her need for stability, particularly during the school week, and the ongoing concerns in C.M.R.’s home, support maintaining the current parenting schedule of primary residence with R.S.C. However, R.S.C. will be required to ensure that K.R. attends school consistently and on time, and the parties shall engage a tutor for K.R. or other academic support recommended by the school.

[61] Recently C.M.R. has not maintained the overnight visit on Sundays pursuant to the temporary order as a result of a change in her work schedule. However, now that K.R. is in the before and after-school program she indicated she could drop K.R. off on Monday mornings again.

[62] Overall, R.S.C.’s failure to ensure K.R.’s academic needs are being met along with the positive indications of communication and cooperation that have resulted from C.M.R.’s continued sobriety, support a joint decision-making order at this time. However, the current circumstances, particularly in C.M.R.’s home, do not support a wholesale change of the parenting arrangement. It is appropriate that the terms of the temporary order which expanded the parenting time continue.

[63] K.R. shall remain in the primary care of R.S.C. with parenting time to C.M.R. on alternate weekends from Friday at 4:30 PM (or Thursday after school if there is no school on Friday) with a drop off at school on Monday morning (or at home at 4:30 PM if there is no school). C.M.R. shall also have parenting time each Tuesday during the school year from after school until 8 PM. The parties will share holiday time as agreed including a week about schedule in the school summer holiday.

Child Support

[64] The only financial statement filed by C.M.R. was dated April 1, 2023. It indicated that she had no income at the time and had been unemployed since August 2022 because she had been in school. Her notice of assessment for 2020 disclosed income of $15,583, for 2021 income of $12,489, for 2022 income of $8568.

[65] She testified that she now works part-time as a PSW every Wednesday and alternate Saturdays and Sundays. She worked 16 hours a week and gets paid $20 an hour. This produces an annual income of $16,640 and a monthly child support obligation of $111.

[66] She did not provide further particulars and no supporting documents. She alluded in her reply evidence that her work schedule had changed but provided no specifics or income particulars.

[67] The only financial statement filed by R.S.C. was dated April 18, 2023 and disclosed 2022 income of $17,804 and that he had been unemployed since December 2022. His income was based solely on social assistance and Child Tax Benefits totaling approximately $20,000 annually.

[68] R.S.C. testified that he was hopeful to start a job following the trial. He sought an order that the parties share any section 7 expenses.

[69] Neither party’s financial disclosure regarding their income was updated or in accordance with the Rules. This was particularly the case for C.M.R. who was under and order to disclose when she obtained employment but she has continued to fail to do so.

[70] The parties shall exchange updated financial disclosure within 60 days, and the ongoing child support and proportionate share of section 7 expenses will be adjusted. In the meantime, commencing January 1, 2024 and monthly thereafter C.M.R. to pay ongoing child support of $111 per month on an estimated income of $16,640, and the parties shall share section 7 expenses equally.

[71] On the basis of the foregoing a final order shall issue as follows:

1. The parties to share decision-making authority for the child. The parties shall consult on major decisions for the child, however, if there is a disagreement following meaningful consultation, R.S.C. shall be permitted to make the final decision.
2. The child shall reside in the primary care of R.S.C.
3. C.M.R. to have parenting time as follows: a. Alternate weekends on Friday after school (or Thursday if there is no school on Friday) from the after-school program with the drop off on Monday morning to the before-school program (or at home at 4:30 PM if there is no school) b. Tuesdays with a pickup from the after-school program until 8 PM. c. An equitable sharing of holiday time has agreed including a week about schedule in the school summer holiday.
4. R.S.C. shall ensure that the child attends school consistently and on time.
5. The parties to forthwith engage a tutor for K.R. or other academic supports recommended by the school.
6. Commencing January 1, 2024 and monthly thereafter C.M.R. to pay child support in the amount of $111 per month for one child on an estimated income of $16,400 annually.
7. The parties to share section 7 expenses equally, including any costs for a tutor.
8. The parties shall exchange updated financial disclosure within 60 days, and the ongoing child support and proportionate share of section 7 expenses shall be adjusted based on their current incomes at that time.

[72] In the circumstances of the divided success in this matter I will not likely be inclined to order costs. However, if either party is seeking costs and the parties are not able to agree, the party seeking an order for costs shall serve and file written submissions, not to exceed three pages, excluding attachments which shall include a bill of costs and any offers to settle by March 15, 2024, with the responding party filing written submissions, not to exceed three pages, excluding attachments which shall include a bill of costs and any offers to settle by April 1, 2024. If no submissions are received from the party seeking costs by the deadline there shall be no order as to costs.

Released: February 29, 2024 Signed: “Justice S. E. J. Paull”