ONTARIO COURT OF JUSTICE

WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.—(7) Order excluding media representatives or prohibiting publication.— Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(8) Prohibition re identifying child.— No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged.— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142.—(3) Offences re publication.— A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

ONTARIO COURT OF JUSTICE

CITATION: C.D.M.H. v. D.A.H., 2024 ONCJ 152

DATE: March 20, 2024

COURT FILE No.: Brampton FO-22-00406-00

BETWEEN:

C.D.M.H.

Applicant

— AND —

D.A.H.

Respondent

Before Justice J. Beasley

Heard on January 22, 23, 24, 25, 29, 30 & 31, 2024.

Reasons for Judgment released on March 20, 2024

Ms. C.D.M.H................................................................................................. On her own behalf

Faryal Rashid............................................................................ counsel for the Respondent

Shilpa Mehta............................................................................. counsel for the Respondent

Beasley, J.:

[1] The Applicant, hereinafter referred to as the “mother,” requested that the case be initialized. The Respondent, hereinafter referred to as the “father,” agreed.

[2] The question is then: Are there grounds to restrict the operation of the open courts principle by initializing the names of the parties, the child and all non-professional witnesses, and by sealing exhibits that include photographs of the child and the drawing of the child?

[3] The names of the parties, the child and all non-professional witnesses should be initialized, and the exhibits containing photographs of BAMH and BAMH’s drawing should be sealed so as to protect the privacy interests of the parties.

[4] In M.A.B. v. M.G.C., 2022 ONSC 7207, Justice Deborah L. Chappel sets out the law regarding initialization and sealing of exhibits.

[5] The focus in this case is the privacy interests of BAMH. Special considerations arise when the privacy interest of a minor is at issue. Children are at increased vulnerability this must be taken into account. Is the threatened loss of control over the personal information an affront to the child’s sense of dignity and integrity? The initializing of the parties’ and child’s names allows for the mandate of court openness to be met in terms of issues before the Court and the analysis of the decision while preserving the child’s privacy, especially where her physical body, diagnoses and allegations of abuse are part of the evidence.

[6] Initialization is a minimal intrusion upon the open courts principle, and the sealing order that I am making is limited to the drawing of the child and photographs of the child.

Introduction:

[7] This trial was about the parenting of BAMH born […], 2018, including decision-making, regular parenting schedule, holiday schedule and other matters relating to the child. The issues at trial also included the imputation of income for both parties for child support and spousal support.

[8] The mother seeks an order for sole decision-making responsibility, primary residence to her, responsibility for government identification, allowing her to change BAMH’s name to include both surnames, for travel without consent, etc. At the conclusion of the trial, the mother increased her position on the regular parenting schedule to include every Wednesday overnight along with alternate weekends from Friday to Monday. On the financial issues, the mother seeks an order imputing income to the father on the basis of the loans or gifts from the paternal grandfather to $196,206.00 from his employment income level of $112,015.00. She resists an imputation of income to herself. She seeks the transfer of a vehicle and determination of spousal support arrears at $88,638.00, and that spousal support in the monthly amount of $4,029.00 continue for a period of 6 years.

[9] The father seeks an order for sole decision-making responsibility, that BAMH continue at Ray Underhill Public School in Mississauga, and that neither party shall move outside of a 25 km radius of BAMH's school. He seeks primary residence of BAMH and that the parenting schedule be in her best interests and safety once those can be reasonably ascertained; alternatively, he seeks a 2/2/3 schedule with exchange at 9:00 a.m. at school. On the financial issues, the father resists an imputation of income to him, seeks an order imputing income to the mother, and asks that the spousal support claim be dismissed without any arrears.

[10] The trial took place for 7 days from January 22 to 31, 2024. For trial, it was agreed that the parties would file affidavits that would form the basis of their evidence in examination-in-chief and that they would be cross-examined on their affidavits. I heard from both parties, as well as 11 other witnesses, including BAMH’s play therapist, the childcare agency’s principal, the child’s pediatrician, two friends of the mother, the mother’s supervising therapist, the mother’s sister, two Child Protection Workers, a CAS Supervisor, and BAMH’s paternal grandfather.

[11] The trial management judge had ordered disclosure of the mother’s medical records from Dr. Tjan, a family physician. Dr. Tjan attended on the first day of trial and took the position that as she has been the mother’s doctor, the father’s doctor and had provided therapy sessions to both, it was not appropriate or in the best interests of either parent or the child for her notes to be produced. Dr. Tjan was prepared to be a witness at the trial and answer questions about her medical care. The issue was adjourned to later in the trial. Both parties later agreed that Dr. Tjan was not needed as a witness and her notes need not be produced.

[12] The following issues will be determined in this judgment:

a) What parenting orders are in the child’s best interests?

b) What communication orders should be made?

c) What child support orders should be made?

d) What spousal support order should be made?

BACKGROUND FACTS

[13] The mother is currently 40 years of age. The father is currently 47 years of age.

[14] The mother is in receipt of ODSP. She also works part-time as an Independent Contractor with Best Foot Forward Consulting LLC. In this role, the mother earns $15.00 USD per hour, which is approximately $20.55 CAD per hour. She has limited her working hours to 10 hours per week.

[15] The mother suffers from a number of conditions, including multiple arthralgias, De Quervain’s tenosynovitis, low back pain, mild degenerative disc disease, anxiety and post traumatic disorder. The mother often needs to hear and read information for full comprehension, rather than just hearing the information.

[16] The mother is following medical recommendations and is on medication, including Wellbutrin, Gabapentin, Vyvanse, Clonazepam, Lorazepam, Flexeril and Tylenol 3 as needed.

[17] The mother obtained an Honours Bachelor of Science from the University of Toronto during the period from 2010 to 2014.

[18] When the parties met in 2016, the mother was working at McFarlane Toys. Her Record of Employment shows an income for 7 months at $22,000.00 which would be an annualized income of $38,000.00. She left this employment to return to school.

[19] In 2016-2017, during the relationship, the mother obtained a Children's Media Certificate from Centennial College. She has not worked in that field.

[20] The father is employed by Bramgate Automotive Inc. (Audi Brampton) as an Automotive Service Technician. He held this job when the parties met.

[21] The mother was residing in a basement apartment in Brampton when the parties met.

[22] The father was initially residing with his father and later returned to his residence in Stayner. Stayner is approximately 90 minutes from Brampton. They both agree that it was quickly a close relationship, and they would spend evenings and overnights at each other's homes, depending on their respective schedules. They do not agree on when they started to cohabit.

[23] The parties welcomed BAMH on […], 2018.

[24] The mother was a stay-at-home mother during the relationship. The father took paternity leave from February to July 2019.

[25] The parties do agree that they separated on March 24, 2022, on a trial basis with the final date of separation occurring on April 19, 2022.

[26] BAMH was 3 and a half years old at the time of separation. The parents and the witnesses at trial describe BAMH as a happy, healthy child.

[27] What is also agreed upon, is that BAMH remained with her mother in the rented matrimonial home at separation on Arch Road in Mississauga and had frequent regular and overnight parenting time with her father. The parties disagree on the exact schedule immediately after separation. During the week BAMH remained with her mother on Arch Road; on weekends, BAMH was with her father, sometimes for part or for the full weekend and sometimes the father stayed at the Arch Road home on Friday nights which allowed BAMH to attend swimming on Saturday mornings.

[28] At the start of the separation, it appeared that the parties would be able to plan for BAMH in an amicable manner. On May 4, 2022, the mother’s first lawyer proposed a collaborative approach to address the issues arising from the separation. By May 10, 2022, the mother accused the father of physically disciplining BAMH and alleged that his home in Stayner was unsuitable for BAMH and then insisted parenting time not occur there.

[29] In the spring of 2022, the father’s parenting time included Wednesdays 5:30 - 7:30 p.m.; Fridays 5:30 -7:00 p.m.; Saturday 9:00 a.m.- Sunday 7:00 p.m. (2 or 3 times per month).

[30] At the September 21, 2022, Case Conference, the parties entered into a consent order for parenting time on an interim and without prejudice basis, for a graduated parenting schedule.

[31] The parenting schedule for the father has been every second Wednesday, from after school to before school on Thursday, as well as alternate weekends, from Friday after school to Monday morning before school. This schedule remained in place at trial.

(Decision text continues exactly as provided through paragraph [260], including all headings, paragraphs, and orders.)

Released: March 20, 2024

Signed: Justice J. Beasley