Court File and Parties

COURT FILE NO.: FC-15-674 DATE: 2016/07/18 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Hugo E. Aguirre, Applicant – and – Christine Elizabeth Aguirre, Respondent

Before: Justice A. Doyle

Counsel: Self-represented, for the Applicant Lisa Sharp, for the Respondent

HEARD: January 21-22, 25-29, May 17-20, 23-26 and 31, 2016;

Reasons for Judgment

Overview

[1] The applicant father seeks joint custody of Lucas, who is currently living with the respondent mother. Lucas is almost four years old and will be commencing school in September 2016. The father is seeking equal time with his son and the right to make final decisions if the parties cannot agree. He is also seeking equal sharing of holidays and the right to travel outside the country with the child.

[2] The mother seeks sole custody of Lucas with no change to the regular access schedule. The father currently visits with Lucas every second weekend and for one overnight visit during the week. The mother seeks a determination of the holiday schedule, child support and a restraining order.

[3] The issues are:

i. What custody order is in the child’s best interests? ii. What parenting arrangements are in the child’s best interests? iii. What limitations regarding travel are in the child’s best interests? iv. What child support is payable on an ongoing basis and retroactively? v. Should a restraining order be issued against the father?

Background

The parties

[4] The parties were married on December 23, 2011. Lucas was born on November 1, 2012.

[5] In July 2012, approximately seven months after the marriage, the parties entered into marriage counselling for a few sessions. The parties separated on March 7, 2014.

[6] The father is 63 years of age and was a surgeon in Ecuador, where he practised medicine for 14 years. He immigrated to Canada in 2001. In order for him to practise medicine in Canada, he would have to complete surgical training and residency. He did not pursue this retraining.

[7] He worked in various jobs including: the Ecuadorian embassy; the flower importing business; the insurance field; a medical clinic; and he assisted in the building of a medical clinic until 2012. He currently resides in a four-bedroom home on a one-acre lot in Manotick. He is currently unemployed, but registered to continue his Masters of Arts in Family Therapy.

[8] The father states that he has been volunteering to help families, especially those with children with disabilities. This provides him flexible hours and his own schedule so he can take care of his children.

[9] The father has four adult children from his first marriage, who are all financially independent and three of whom are married. He has a 13 year old daughter, Isabella, born December 12, 2002, from his second marriage to Susan Phipps. Isabella lives on an alternating week basis with her mother and the father. The father is the primary parent responsible for managing her medical condition. Isabella has a number of medical issues due to mitochondrial disease.

[10] The CAS had eight openings with respect to the father and the mother of Isabella over an 11-year period.

[11] The mother is 39 years old and is currently teaching Grade 1 at Torah Academy since the fall of 2015. The mother previously had a consignment shop and then attended teacher’s college in 2011 and graduated in 2012. She lives in Stittsville with her three sons from a previous marriage and Lucas.

[12] The children from her first marriage to Larry Kulla are: Adam, born February 3, 2002, who receives counselling; Thomas, born December 5, 2004, who is autistic; and Samuel, born June 28, 2007. The mother has been diagnosed with leukemia and is currently in remission.

[13] Adam is mature, sensitive and caring with his siblings. He has shown anxiety and depression in the last two years and has been seeing a social worker at school. Thomas was diagnosed with ADHD two years ago and a psycho-educational report identified him as being at the low end of the autism spectrum and as being gifted. He is on medication. Sam, who has no special needs, is attending Grade 3 at Westwind School in Stittsville. The mother describes him as a social butterfly with athletic ability.

[14] The mother had been married to Mr. Kulla for 10 years, but they had been together for 15 years. They separated on November 16, 2010. During the last two years of their marriage, the couple was struggling in the marriage due to Mr. Kulla’s excessive drinking, recreational drug use and secretive spending habits. He also had extensive debt.

[15] The first three years after the separation was rife with conflict. Despite this, Mr. Kulla is a good father who loves his children and for the last year and a half has been attending counselling. He has the children half time.

[16] Lucas is a happy, active child and is doing well. He is described as a delightful healthy boy who loves to play drums, soccer and ping-pong. He also likes to have stories read to him as part of his night-time routine. He currently lives with his mother and three step-brothers and visits with his father every second weekend from Friday at 3:30 p.m. until Monday morning at 9:00 a.m. and every Wednesday from 3:30 p.m. until Thursday morning at 9:00 a.m.

[17] The parties’ short marriage had some memorable times such as family activities, as well as family vacations including a cruise in March 2013 and trips to Sandbanks Provincial Park and Boston. The parents were active with all children, including playing in the park, playing soccer, attending family gatherings, etc.

[18] Unfortunately, the marriage was also fraught with difficulties. The parties engaged in conflict on a number of issues including: struggles to blend the two families; Isabella’s medical issues and the father’s time spent attending to her needs; the three boys and their relationship with their father; financial issues; dealing with the children’s needs; and their involvement with their church.

[19] The evidence indicates that the parties were unable to communicate and work together to resolve the various challenges facing them. As the couple joined their two families together after a brief courtship, it soon became apparent that they were ill-equipped to deal with the myriad of issues. The parties’ respective personalities and their manner of dealing with these challenges and each other led to an unhappy family situation.

Court proceedings

[20] The father instituted proceedings and the first case conference, which dealt with preliminary issues of financial disclosure, was held on May 14, 2015 before Master MacLeod (as he then was).

[21] At a second case conference, the parties agreed to a consent order dated June 23, 2015 in which primary residence remained with the mother and the Office of the Children’s Lawyer (OCL) was asked to be involved. The OCL declined involvement.

[22] Pursuant to this Order, the father had regular access to Lucas on Saturday mornings and Wednesday evenings. The first three Wednesday visits and the first three Saturday visits would be observed by a third party as set out in the order. The father was ordered to pay child support in the amount of $200 per month commencing July 1, 2015 based on an income of $28,000 per year.

[23] The parties also agreed not to attend each other’s homes or workplaces and not to communicate directly or indirectly, except in the case of an emergency with respect to Lucas’ health and well-being. Arrangements regarding access were to be made through Family Wizard.

[24] At the November 13, 2015 motion before Justice Shelston, the father was requesting custody of the child. The Court ordered that the matter be set down for trial in the January 2016 trial sittings. The Court also ordered an increase of the father’s access to his current access. He ordered costs against the father in the amount of $4,000, which have yet to be paid.

Issues

What custody order is in the child’s best interests?

Father’s position

[25] In his opening statement, the father requested sole custody as he believed that he is in the best position to care for Lucas on a full-time basis.

[26] In both closing submissions and his draft order, the father submitted that the parties should have joint custody of Lucas with equal shared parenting and should there be a disagreement on a final decision, he would have final authority to make the decision.

[27] He is of the opinion that both parties could work out a communication plan via emails, allowing them to consult each other with regard to major decisions for Lucas.

[28] He submits that he has proven to be a good parent to six children. For example, he states that but for his tenacity, Isabella’s diagnosis of mitochondrial disease would never have been made in March 2013.

Mother’s Position

[29] The mother submits that it would be in Lucas’ best interests that she be awarded sole custody. She states that there is no communication between the parties and there is no basis for believing that the parties can effectively communicate regarding Lucas.

[30] She is prepared to consult with the father via electronic means regarding major decisions and is requesting that she have the final say regarding important decisions.

[31] She stated that she is fearful of him and, as such, is requesting a restraining order to ensure that he will not approach her, unless it is within the strict boundaries of a court order solely on issues pertaining to Lucas.

[32] Lucas starts school in September 2016 and he will be attending A. Lorne Cassidy Elementary School in Stittsville.

Law

[33] The legal principles in determining custody and access are set out in the Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 24 (CLRA):

(1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the Court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child.

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.

[34] In Kaplanis v. Kaplanis (2005), 10 R.F.L. (6th) 373, the Ontario Court of Appeal stated at para. 11:

The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.

[35] In Ursic v. Ursic, 32 R.F.L. (6th) 23, the Ontario Court of Appeal dismissed the appeal from a trial decision which ordered joint custody. In that case, even though the Court found that the parties were engaged in conflict, they had nevertheless largely cooperated on major decisions affecting the child, except for the child’s schooling.

[36] In V.K. v. T.S., 2011 ONSC 4305, Justice Chappel explored various factors that a court can consider in determining whether a joint custody order is in a child’s best interests. She conducted a thorough analysis of the case law and made the following comments:

75 Where an objective review of the historical and more recent evidence clearly indicates that there has never been an ability to cooperate or communicate effectively, or that one or both of the parties is/are unable to put the needs of child before their own, joint custody is not an appropriate order. In these circumstances, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for making of order of joint custody.

76 In analyzing the ability of the parties to communicate, the court must delve below the surface and consider the source of the conflict. The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then claim sole custody on the basis of lack of cooperation and communication.

Analysis

Overview

[37] In determining custody, the Court considers the following factors set out in the CLRA:

• the love, affection and emotional ties between the child and each person claiming custody

Both parents here have demonstrated that they have emotional ties with Lucas. They certainly love their son.

• other members of the child’s family who reside with the child

Isabella resides with the father half the time and Lucas’ relationship with his sister is important. They enjoy being with each other and are disappointed when their time together comes to an end. While Lucas is with his mother, he is able to spend time with his three brothers. Lucas is fortunate to have four siblings who all have a bond with him.

• persons involved in the child’s care and upbringing

At this time, both parents are involved in Lucas’ upbringing. The maternal grandmother, who gave evidence, also described her involvement with Lucas.

• the child’s views and preferences

Lucas’ views cannot reasonably be ascertained.

• the length of time the child has lived in a stable home environment

Since the separation over two years ago, the child has lived with the mother and visited with his father; the mother has established a routine with consistency and a schedule for all her four sons. The father has been regularly exercising access albeit quite restricted after separation. Since the Order of Justice Shelston, he has had regular visits including overnight visits during the weekend, save and except one weekend in March 2016 when he did not pick up Lucas at the caregiver’s home for access. He did not provide notice or reason to the mother. At trial, he testified that he was upset about the turmoil of the litigation and its effect on Lucas. He stated that he felt like he should “give up”, but upon reflection, he changed his mind and realized that his son needed him in his life.

• the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child

Both parents have demonstrated parenting abilities and willingness to parent Lucas. They both have past parenting experience with children from previous marriages and have demonstrated the care and attention they have provided in their education, meeting their needs and attending to the necessities of life. The father has spoken of the success of his four adult children from his first marriage and his success in obtaining half time with Isabella, arranging and taking the lead role in attending to her medical needs and being granted an order that allows him to make the final decisions regarding her medical condition. The mother has demonstrated her attending to the boys’ needs, Adam for his anxiety and Thomas for his ADHD, and cooperating with the CAS with respect to an investigation regarding their father’s (Mr. Kulla) parenting issues. The father questions her decision to allow Mr. Kulla to have half time with his sons when he has issues. The Court notes that the CAS opened files on two occasions due to the father’s behaviour. This will be elaborated in more detail below. The Court notes that the CAS did close their files on both occasions after guidance was provided to Mr. Kulla.

• the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing

The father requests joint custody and a right to participate in making major decisions. His proposal with respect to Lucas is laudable as it includes Lucas participating in sports, such as soccer, exposing him to music including drums and allowing him to travel to foreign countries to allow him to visit the paternal side of his family. He regretted that the mother refused to allow Lucas to visit Disney World in Orlando, Florida, a trip with all expenses paid by the Children’s Wish Foundation for Isabella. He strongly believes that Lucas should be afforded the opportunity to see the world and take in as much as possible. The mother exposes the child to family activities. Due to her limited financial capabilities, she is unable to register Lucas in organized activities, but she ensures that he engages in activities that are not costly or at no expense. She does not see the merit that Lucas travelling at such a young age as he will likely have no memory of it.

• the permanence and stability of the family unit with which it is proposed that the child will live

Both parents have equal time sharing of their other children with their ex-spouses. The stability of the parties’ respective family units will provide Lucas with consistency. Lucas has been a witness to the shared parenting of his siblings with their respective parents. He has bonded with all his siblings and both parents have cultivated these relationships. Given that Isabella is not on the same schedule as Lucas, the mother has agreed to approach Larry Kulla and the father’s ex-wife, Susan Phipps, to determine whether the children’s schedules could be adjusted to ensure that Isabella can be with Lucas when he is staying with his father.

• the ability of each person applying for custody of or access to the child to act as a parent

As will be discussed in further detail below, the Court finds that both parties are good parents. Each parent has the ability to parent Lucas and provide him with love, attention, care and guidance. Each parent has shown exceptional parenting skills to date, both for Lucas and the previous children. Both parents have struggled with tumultuous divorces from their previous spouses but despite this adversity, have been able to demonstrate that they prioritize their children over themselves. Despite the degree of animosity between the parties, Lucas’ needs have been met and he is thriving.

[38] Despite the Court’s observations of the parties’ good parenting skills, in determining what custody arrangement is in Lucas’ best interests, the Court must consider the relationship between the parties. Unfortunately for Lucas, the parents are unable to work together in a joint custody regime.

[39] The evidence shows that the level of communication and problem solving between the parties during their relationship and post-separation has been very poor.

[40] Below is a discussion of the parties’ relationship, their efforts in counselling, their financial issues, the involvement of the CAS, and pre-separation and post-separation events that demonstrate the inability of the parties to cooperate and work together to deal with issues. Their history together, albeit brief, does not demonstrate a foundation for the parties to communicate and work together for the benefit of Lucas.

The parties’ relationship

The beginning

[41] The parties met in December 2010 at the Sensplex, where the mother had a consignment booth selling children’s clothing. Later on, the father texted her and asked whether, if she was not married, she wanted to go out with him. They started to see each other.

[42] At the time, she was living in the matrimonial home separate and apart from her first husband and eventually moved out in January 2011.

[43] The mother separated from Larry Kulla as she felt she would be a better parent without him.

[44] By April 2011, the father proposed marriage, but she had to wait a year to obtain a divorce. Early on in the relationship, he told her about his previous separation, along with the allegation of abuse made by his second wife and his acquittal. He succeeded in obtaining joint custody and equal time with Isabella. He had been alone with Isabella for 6.5 years and wanted a role model for her.

[45] The mother’s separation agreement with her first husband was signed on November 16, 2011 and the Divorce Certificate was issued on December 18, 2011.

[46] The parties would initially see each other when they did not have their children living with them. They were both involved with the Metropolitan Bible Church.

[47] Before the wedding, they attended a marriage course offered by the church in which they learned the duties of a husband and wife. The mother eventually sold the consignment store and moved in with her mother in August 2011 to save money. She attended teachers’ college in September 2011 and graduated in April 2012 after the parties were married.

[48] The mother states that she felt pressured from the outset to move up the separation date so she could obtain a divorce and marry the father. She now blames herself for jumping into a relationship with the father resulting in serious changes for her three sons. She believes that she was being selfish, as it meant pushing the boys to participate at church and moving to the farm. She thought she was preparing her life for a better future based on Christian principles.

[49] The mother invested all of her savings in wedding preparations, rental of the farm and helping the father pay his debts, such as hydro bills, gas bills and rent. She further helped him with the court matters involving Isabella and her mother. She used her OSAP loan to assist with the family expenses.

[50] There is a dispute as to who paid the $1,200 retainer for services of the father’s lawyer. The court proceedings involved the father being held in contempt for not returning Isabella to her mother on time after an access visit during the summer. He had to pay a fine for his contempt.

[51] The parties were married on December 23, 2011.

[52] The parties briefly separated from September 15, 2013 to September 26, 2013, their final separation being on March 7, 2014. The parties dated from August 2014 until October 2014, but did not live together during that period of time.

[53] At trial, both parties led extensive evidence with respect to each other’s behaviour during the marriage and after separation. Much of the evidence dealt with blaming each other for the marriage breakdown. Each party spent a great deal of time and energy at trial attempting to prove that he/she was the victim.

[54] Essentially, the two families never became one. This was aptly articulated by Margaret Stephens, the maternal grandmother, who during her visits at the home observed that there were really two families in the home. She believed that it was not a cohesive family.

The farm

[55] The parties agreed to live on a four-acre farm that the father rented in November 2011.

[56] The parties, when they resided together, had a litany of complaints dealing with daily issues:

i) For her part, the mother felt isolated from her friends in Stittsville, while the father was of the opinion that the farm was the best place for the children to run free. It was challenging for the mother to transport the children across town to attend soccer games.

ii) The mother complained about the lack of money and accused the father of being lazy and getting up late.

iii) The parties were having financial difficulties. At the end of 2012, the father was working full-time at the clinic. He took parental leave to assist with Lucas and be proactive with Isabella’s pain, while the mother opened a daycare at the farm. The father bought Isabella a horse, paid for its upkeep, paid for her private singing lessons and took parental leave at a time when the family could not really afford it as savings were so low that the mother had to frequent the food bank.

iv) The father complained that the mother’s daycare arrangement took up the whole house.

The Church

[57] Various people were involved in the parties’ lives, including church members, some of whom testified during the trial. Their testimonies indicated their in-depth involvement in the parties’ lives, their attempts to assist the parties and some passed judgment on the parties with respect to their marital challenges.

[58] Counselling sessions were held with Pastor Rudd who, according to the father, accused him of not being a Christian man, criticized him for being on parental leave and belittled him. There were concerns that their issues were shared with all the church members by the counsellor as the father sent emails to numerous church members.

[59] The mother felt spiritually abused, as she believed everything the father said about how to be a good Christian wife and the need to be subordinate to her husband.

[60] Lynne McDiarmid knew the father and his second wife, Ms. Phipps, for 10 years and during his separation from her, Ms. McDiarmid took the father’s side. She indicated that Ms. Phipps was unstable and very angry.

[61] During the parties’ separation, Ms. McDiarmid took the mother’s side and was her accountability partner during the counselling sessions. As an accountability partner, she would ensure that the mother would follow through with tasks assigned to her by the counsellor and also act as a sounding board.

[62] Laura St Vincent, who works at Torah Academy with the mother, attended Metropolitan Bible Church. She supported the father when he was in conflict with Ms. Phipps. During the parties’ separation, she supported the mother.

[63] The father’s accountability partner during counselling was Ed Leblanc. In November 2013, he helped the mother move to Manotick. Early on during counselling, he observed that the father acknowledged his responsibility, but then “his heart hardened and [he] accused [the] mother of trying to turn Isabella against him”. The father blamed her for the marriage breakdown. Mr. Leblanc received emails sent by the father to a number of church members outlining his sentiments regarding the separation.

Other issues

[64] The father planned a family trip to Ecuador for July 2013. At the time, the tension between the parties was deepening. At trial, the mother testified that she was feeling uncomfortable in the marriage, and was not interested in travelling. Yet, a text message from her to the father indicates differently. She decided not to go.

[65] Before the father left for Ecuador, the parties had an argument surrounding the father’s wish to bring Lucas to the pool against the mother’s wishes. She held Lucas in her arms and threatened to call the police. He states he tossed Lucas’ bathing suit back at her. In her testimony, she did not recall that he grabbed her by the waist (although she admitted saying this to the police). She also could not recall him grabbing her leg and “making her fall in the stairs” (which she admitted telling the CAS and was contained in their records).

[66] Upon his return from Ecuador at 2 a.m., the father found the house locks had been changed, forcing him to stay in a hotel that night while Isabella went to her mother’s house.

[67] On another occasion, before he left for a trip to Miami, the father changed the locks as he wanted to protect himself and his daughter. He did not want to be out in the street again.

[68] Each party was upset by the other party’s unilateral action with respect to the locks.

[69] The father accuses the mother of alerting the authorities in Florida, causing the authorities to detain him with Isabella on his return trip to Canada. He believes that she accused him of kidnapping his daughter and taking her out of the country without Susan’s permission.

[70] In February 2014, the mother decided to be baptized, but the father thought it was not genuine. He did not attend as he believed that this sacrament did not reflect her lifestyle. He believed baptism symbolized that she was a follower of Christ and that her behaviour did not manifest virtues extolled as love and affection.

[71] From the mother’s point of view, she felt that the father was not financially supportive of the family and was favouring Isabella over the family’s needs.

Relationship after the separation

[72] Both parties ended their marriage with a lack of trust in each other. The mother does not want contact from the father and is concerned with respect to his care for Lucas. The father finds himself defending against allegations of abuse against her and the child. He believes he must always be on guard when dealing with the mother as he does not know what to expect. For example, the mother alleged that the father sexually abused the child, which caused an investigation by the police and the CAS. The father cooperated with the police and no charges were laid.

[73] Initially, the father’s visits with Lucas were taking place at the church. In March 2015, the church decided not to allow visits to take place at the church anymore. He refused to attend the mother’s home for supervised access as he believed he would expose himself to false allegations.

[74] The father admits to sending a number of emails after the separation because he wanted to see his son. He regrets involving people in the church and the mother’s family, but says he was reacting to the circumstances after being cut off from his son.

[75] The mother faced challenges recovering her belongings and her family, friends and church members assisted her.

CAS involvement

[76] As stated above, the CAS was involved with the parties and their ex-spouses and also, a file was opened with respect to them.

[77] There were three openings with the CAS with respect to the family. The file was coded 33H - emotional harm to children due to exposure to domestic violence and partner conflict.

[78] Christy O’Meara is a protection worker with the CAS. She holds a Masters in Social Work, has worked for the CAS for six years and deals with families on a range of issues. She became involved with the family at the request of the mother, following the completion of the social worker, Pamela Redmond’s investigation.

[79] She provided food vouchers to the mother, referred her to Involving Women Against Violence and provided financial guidance.

[80] A counsellor familiar with violence against women was recommended to help with the cycles of violence. Adam was exhibiting the most anxiety. The counsellor met with all the boys and Adam expressed that he was having a hard time at school. He was worried that the father was going to kill his mother and the boys were happy that she had left.

[81] Statements made by the children to the counsellor during interviews were admitted in evidence after a voir dire:

• Isabella – put her head down and cried when speaking about Christine – she said “how loud Hugo (father) can yell”; her mother was present during interview, “yells so loud, it shakes the windows” jokingly;
• Sam – did not engage and he was playing video games just chanting “I hate Hugo”;
• Thomas – autistic – does not like Hugo – yells at his mother and ignores; and
• Adam – free flowing chatter – does not like how Hugo treats his mother – ignores them, goes out with Isabella.

[82] The CAS became re-involved on March 27, 2014 when the mother was concerned that the father was suicidal. He denied it.

[83] In August 2015, the mother alleged that the father had sexually abused Lucas. She stated that she changed his diaper after an unsupervised visit with the father and she observed that his bum was sore. The boy said that his dad had swatted him and that his father had put a finger in his bum. The mother contacted the Children’s Hospital of Eastern Ontario (CHEO) on August 10, 2015.

[84] The main concern was that Lucas put his fingers in his bum and he indicated that his father had done so. The child was interviewed by Detective Marelic in the presence of the mother at her home.

[85] After a thorough investigation by the Ottawa Police Services with full co-operation by the father, there were no charges laid against the father.

[86] Detective Johanne Marelic, investigator with the Child Abuse and Sexual Assault Unit ruled that, based on her investigation and different investigative tools, there were no grounds to lay charges. The mother’s descriptions were very disturbing, but when she spoke to Lucas there was no confirmation. She stated that he was less than three years old and very suggestible.

[87] She stated that it is not unusual for children to touch their genitalia. It could mean nothing. Their mandate is to ensure the physical and emotional well-being of children. Sometimes children get caught in custody access cases between two parents.

[88] Lucas verbally expresses himself in small, short sentences as he is under three years old. No charges were laid and the investigation was closed.

[89] In September 2015, the mother alleged that the father had given Lucas a laxative. Following a consultation with the supervisor, it was determined that giving a child prune juice was not a protection issue.

Conclusion

[90] Although the parties are both good parents, the Court finds that that they do not possess a minimum level of communication to allow them to work together and make major decisions in the best interests of Lucas. To this date, they have not demonstrated this ability and this Court cannot impose a joint custody regime “with the hope” that they can learn to communicate.

[91] As stated in the Kaplanis case, the Court cannot order joint custody with the hope that the parties will begin to cooperate and learn how to communicate. Joint custody assumes some semblance of respect and the ability to respect the other parent’s point of view.

[92] Lucas cannot wait for his parents to learn how to speak to each other. The parties’ relationship has a number of interpersonal issues that obstruct them from effectively communicating with each other.

[93] The history recounted above demonstrates a number of serious realities. This is underlined by the conclusions set out below.

[94] Firstly, they do not trust each other, as both parties have admitted they have no confidence or trust in the other parent. The father admits that he is on constant alert and is suspicious of the mother’s intentions to the extent that he cannot trust her motives. He has been accused of sexually and physically abusing his child and these allegations have been found to be unproven. The mother believes she had genuine concerns and had an obligation to alert the authorities when the child made disclosures.

[95] A relationship mired with lack of trust and respect does not provide the foundation for the communication necessary to establish a joint custody regime.

[96] Secondly, the mother is sensitive to the father’s verbal outrages, screaming and avoidance behaviour. During the marriage, she would be worried about another outburst from him and felt that she and the boys would “walk on eggshells” as they were worried that he might have an outburst if someone upset him.

[97] The father denies that his behaviour crossed the line and became abusive. He indicated that if being quiet is being abusive, then he was indeed abusive. He does admit to yelling. Regardless of whether he has insight as to his behaviour and the effect that it had on others, the mother was made to feel very vulnerable during the relationship to the point that she reached out to people in the community including friends, church members and CAS workers.

[98] Thirdly, the mother suggests that the father has shown an inability to respect boundaries and disrespect of Court orders. The Court finds that the father appears to believe that he can push the envelope. For example, Justice Shelston’s Order states that he must return the child to the caregiver at 9 a.m., and yet, he is constantly late dropping off Lucas. In response, the father states that he always communicates with the caregiver advising that he is running late. He states that he is late as Lucas takes a while to get ready.

[99] The father has good parenting abilities to care for Lucas, but it is impossible for the parents to co-parent this child. The final decision making power should remain with the mother. The mother’s obligation to consult with the father will ensure that he is afforded the opportunity to participate in major decisions, but the ultimate final decision will remain with the mother.

[100] There will be many major decisions that will need to be made for Lucas, who is 3.5 years old. To date, the mother has made the decisions and has been the primary parent tasked with dealing with his needs. The mother has made arrangements for the child with the daycare provider and the school for September 2016. The Court finds that the mother is in the best position to make decisions, as she has been the primary caregiver of the child since birth. The best interests dictate that the mother continue in that role. The father can be allowed participation, with the mother seeking input from him before a decision is made.

[101] Therefore, the Court finds that it is in the best interests of Lucas that the mother be awarded sole custody. She must, however, consult with the father prior to making final decisions pertaining to Lucas and provide reasonable notice before a decision is made.

[102] She can consult with him via Family Wizard or other technological aids. This way, the father will have input in the important milestones of Lucas’ life, while she will make the final decisions.

[103] Therefore, the mother will have sole custody of the child but the father will have the following rights:

• he will be consulted via email and/or Family Wizard with respect to all major educational, religious and medical/dental decisions;
• the mother will request his input at least 30 days before a decision must be taken (except in the case of an emergency);
• the father will have direct right to access to Lucas’ medical records, school records and any other professional records;
• the father will provide his input as soon as practicable;
• the mother will provide the father with her final decision before implementing the same.

What parenting arrangements are in the child’s best interests?

Father’s position

[104] The father believes that there is no reason why he should not have half of the time with Lucas. He is a good father and Lucas enjoys his time with him. He states that it is his right to have Lucas half of the time and there should be a presumption of shared parenting. If Mr. Kulla has his three boys half the time and he has so many issues, he does not understand why he cannot have Lucas half of the time.

[105] He states he can provide a stable, loving, healthy and caring environment. His submission is based on several grounds:

i) He states that he is the better parent to meet Lucas’ needs. He has a loving relationship with Lucas and can provide a better environment than she can.

ii) The mother has proven to be the parent who is less likely to promote a stable and qualitative relationship with his son. She has tried to minimize his time and involvement with his son. If he was the custodial parent, he would maximize the mother’s involvement. She has made false allegations against him and is trying to push the father out of the child’s life.

iii) Finally, the mother’s home is not a safe environment for Lucas in light of the difficulties she continues to experience with the father of her three sons. She does not put the children first. She is already in another relationship with a man that she met on-line in January 2016 and has already introduced him to the children.

[106] Rather than sending Lucas to a daycare when the mother is working, he is available to care for him. He will be at home studying and working from home and believes Lucas’ contact with Isabella will be a positive and happy experience for him. He believes the child should attend a junior kindergarten, but does not agree that his son should be in daycare where he has been since September 2013 and where he is raised by a caregiver from 8:45 a.m. until 5 p.m. He believes he can teach his son and he is available for him. If shared parenting is granted, there is a daycare provider around the corner where Lucas can go for a few hours in the event he requires a caregiver.

[107] He is willing to cooperate with the mother and he can provide Lucas a better loving and respectful relationship with both parents. He is of the belief that the mother has been trying to eliminate his involvement in Lucas’ life and that she left the marriage because he left his job and was spending time with his disabled daughter.

[108] He seeks equal shared parenting with 4 nights one week, i.e. from Saturday at noon to Wednesday at 4 p.m., and then a second week from Sunday at 9 a.m. to Wednesday at 4 p.m.

[109] He states that when he drops Lucas at the daycare every Thursday and Monday mornings, Lucas cries and wants to stay with his father.

[110] He plans to find employment and is considering work in the financial sector or as a Director of a medical centre. He seeks a job that provides flexibility and time for his children.

[111] Lucas has evolved from a timid to a child who is comfortable in the father’s presence. He has a happy and positive relationship with him and loves his sister. The father states that he possesses a calm presence and demeanour and a quiet voice. Lucas is affectionate and feels very comfortable in the father’s presence.

[112] Lucas has spent an enormous amount of time with Isabella, who suffers from mitochondrial disease since birth. She experiences pain in her lower extremities, her stomach muscles and in her legs, hips and back. At an early age, she was diagnosed with chronic neutropenia, which means that her body is unable to fight infections. She also suffers from lack of energy and her growth is delayed.

[113] He indicates that at the time of separation, Susan, Isabella’s mother, complained to the CAS and the police. She alleged that he sexually molested the child and that Susan had been assaulted on three separate occasions. Susan would not let him see Isabella and he was granted six hours per week by the Court. CAS found no evidence of abuse and the assault charges were dismissed after a trial.

[114] On December 21, 2005, the Judge increased access to Isabella to equal time and gave the father the authority to make decisions with respect to medical issues. At the time, they did not know what her medical ailment was. Her mother thought she had celiac disease and she was being treated for lactose intolerance. This situation persisted until 2010, when she developed pain in her legs. In September 2010, the schedule changed to a week-on/week-off basis. He met with a number of specialists and numerous tests were conducted. In 2013, a Texas lab diagnosed Isabella as suffering from mitochondrial disease.

[115] The father indicates his extensive involvement with Isabella, taking her to medical appointments and informing her mother. He also takes Isabella to singing lessons and recitals. He started a fundraising campaign for her, but was removed from the committee due to the mother’s call to the foundation. The father spent much of his testimony describing Isabella’s struggles and how her day-to-day life is very challenging. Her physical activity is a challenge as she has constant pain. Thermoregulation is difficult and exposure to cold temperatures can be very difficult. The lack of energy caused by the disease is frustrating and simple tasks cannot be taken for granted.

[116] The father refutes the allegations and accusations made by the mother and is resentful for the restrictions that she has placed on his relationship with Lucas. She has made strong and false allegations against him, but the CAS and the police have cleared him of any wrongdoing or child abuse.

[117] Isabella spends Friday and Saturday with Lucas and his father. He believes that the mother has not been accommodating by not providing Lucas’ health card and blanket. He was unable to obtain treatment for an infection of conjunctivitis. Nevertheless, he was able to obtain an appointment and was prescribed antibiotics for the Lucas’s eyes.

[118] The mother also denigrates the father within the community and in front of church members. The allegations of child abuse were sufficient to reduce the time with his son.

[119] The father states he has proper parenting abilities, as demonstrated with respect to Lucas and his daughter Isabella. In contrast, the mother’s three sons grew up in a hostile environment with a father who is involved in drugs and alcohol. The parents fight and quarrel in front of the children. He believes her sons are angry, aggressive and lack discipline, structure and boundaries.

[120] The father states that he was a good parent to the stepchildren. He denies being abusive and states that the CAS investigation relied on her description of matters without appropriate investigation. The CAS involvement did not show domestic violence.

[121] He is also concerned regarding the mother’s false allegations and her lack of apology when the CAS and police did not pursue them.

Mother’s position

[122] The mother submits it is in the child’s best interests that he continues to live with her. She bases her position on the following factors:

• status quo should not be changed, as she has been the main caregiver for Lucas; and
• the evidence of domestic violence by the father in past relationships and in his relationship with her shows that he is controlling and abusive. The father is emotionally unstable, has a bad temper, has impulse control issues and has poor judgment. He also lacks insight into how his behaviour detrimentally affects all five children in the family. His behaviour and the repeated exposure to adult conflict has affected the children.

[123] She describes Lucas as having average development, crawling, talking, walking, and being calm. He is a growing boy who loves sports, machinery trucks, garbage trucks, plays independently and shows imagination. The school board allowed the boys to play soccer last year, as she could not afford to register them in activities.

[124] The mother has been the main source of emotional stability for her three children and Lucas. She proposes a very detailed parenting and access schedule to eliminate future conflicts and allow some ongoing communications.

[125] She states that Lucas is a spirited child and since the father is short tempered, he does not have the skills and patience to deal with Lucas’ personality. He is very much like Thomas. The father needs to have everything in control or else he raises his voice, as he did with the three boys. Lucas is not like Isabella, who is quiet and meek. Lucas is still too young to advocate for himself and therefore more time with the father is not in his best interests.

[126] The mother attends, with the children, a Single Mother Survivors of Abusive Relationships meeting every other Friday. She was diagnosed with chronic myeloid leukemia in September 2015 and while in remission, she is on medication.

[127] She states that, during the relationship, the father would be hot/cold, call her names, tell her to pack her bags, and was reclusive and distant. There were issues with money and she used OSAP money to pay for rent. She felt that she had to be harsh with Mr. Kulla to appease the father. She did not socialize with her family and friends after the marriage.

[128] The mother alleges the father was not helpful with Lucas after his birth. She had to ask her mother to take her to doctor’s appointments and help her with the breast pump.

[129] The mother alleges the father called her a “horrible mother”, screamed at her and slammed doors. She indicated that the children had to use the bathroom downstairs and believed that Isabella should as well. However, the father felt that she should be permitted to use the upstairs bathroom.

[130] The mother indicated that she would lock herself in the bathroom and the father would yell at her and pound on the door telling her to “shut up”. He denies swearing at the mother, calling her names, screaming and yelling at her. He denies telling the boys that he does not love or care about them.

Analysis

[131] Based on the analysis set out below and the factors set out in the CLRA, the Court finds that it is in Lucas’ best interests that he have equal time with his father. For the reasons set out below, Lucas should be living equally with both parents commencing September 2, 2016.

[132] The Court finds that it is in child’s best interests that a week-on/week-off schedule be implemented. The schedule proposed by the father is too disruptive for the child and will result in him changing households very frequently and many transitions. In addition, it does not allow mother to have a full weekend with Lucas. The week-on/week-off schedule will permit the establishment of a routine for Lucas, especially as he starts junior kindergarten in the fall.

[133] On the other hand, the mother’s proposal that Lucas maintain restricted time with his father is not in Lucas’ best interests.

Parties are good parents

[134] The evidence clearly demonstrates the strife between the parties and the abusive manner in which the father treated the mother, along with her retaliatory behaviour. But the parties’ individual characteristics do not detract from their respective abilities to be good parents while caring for their children from previous relationships and Lucas.

[135] Both parents have demonstrated love for Lucas and are both good parents. The Court finds that both parents have a lot to offer this child.

[136] Nevertheless, Lucas deserves to have both parents in his life. They should be equally participating in all milestones of his life.

Father is a good parent

[137] Lucas would benefit from meaningful time with his father.

[138] The father has a desire that Lucas experience the world and has shown an interest in having him travel both within and outside Canada. He has exposed him to music and Lucas has shown an interest in playing drums. He has registered Lucas in soccer and as a coach, he is able to participate in practices and games.

[139] It is important that Lucas continue to develop a bond with Isabella, his only sister. They were living under the same roof until the separation, and unfortunately after the separation became estranged. It is in Lucas’ best interests that he has time with all his siblings.

[140] The Court recognizes the role of the father, who should not be shut out of the child’s life and should play a meaningful role in the child’s life.

[141] The Court finds that the father has a loving and caring attitude towards Lucas. Clara Bonhomme met Isabella at Metropolitan Bible Church as a Sunday school supply teacher. She was paid by the mother to supervise visits between the father and Lucas. She said the father was very emotional when she would not let him take Lucas to Lansdowne Park. 90%of the time Lucas did not want to leave. The father displayed very positive parenting and appropriate redirecting when necessary. Lucas was happy with his sister, was provided with appropriate snacks and was involved in cooking, cleaning and washing things in the pool.

[142] The father’s witnesses (his friends) confirmed that he is a good parent. Michelle Vincent is a homemaker with two children with special needs. She has attended the Trinity Bible Church for the last 10 years. She met the father through the youth group. She finds Isabella to be a well-adjusted child who tries very hard to participate in activities although she struggles with pain.

[143] She finds Lucas to be easy-going and shy at first. He loves music and sports and is well-adjusted. She has been sociable with the father, observes Lucas as being very comfortable with his father, and enjoys being with them. Lucas was part of the Christmas story at the church during which he was well behaved. She was present during supervised visits which went smoothly and transitions went well. Isabella and Lucas get along very well. She had limited knowledge regarding allegations made by Susan and the CAS involvement.

[144] Lisa Bearss is a separated research technician with the government, has a two-year-old daughter. She met the father in the spring of 2014 at the Metropolitan Bible Church. She met Isabella at the Fellowship Centre. She saw the father at church events and met Lucas at the church. He received hugs and kisses and appeared to be a happy child. He had a lot of fun with his father and never cried nor looked scared. She felt the dad was doing a great job looking after his needs. She was present when supervisor Mary Anderson was upset that he wanted to take the children for a bike ride and threatened to call the police. It was a sunny day and they wanted to go to the park. They were only allowed to stay on the first floor or in the backyard. The father was frustrated and put the bikes back in the car. She knows nothing about the CAS involvement and issues with Susan.

[145] Tracy Stewart met the father approximately two years ago at the Trinity Bible Church. She witnessed the father helping Isabella, who experienced difficulties with her legs. She developed a relationship with both the father and Isabella, who is a lovable child and does not complain about her pain. She is very strong, very happy and does leg exercises. Ms. Stewart has two sons who play with Isabella. She met Lucas last summer; he was very shy at first, but warmed up very quickly. He always wants to be next to his father.

[146] Ms. Stewart has had the family over for dinner. Lucas enjoys going to church and likes music, playing drums, as well as playing with trucks and cars. She trusts the father with her boys and did not believe the allegation of sexual abuse. She is aware that Isabella’s mother accused the father of abuse as well. He never said anything negative about the mothers.

[147] Ms. Stewart attended for five visits and never saw the father discipline Lucas or Isabella. He portrays himself as the victim. They see each other on a weekly basis at church and youth group.

What limitations regarding travel are in the child’s best interests?

Mother’s position

[148] The mother is prepared to forego travel with Lucas outside the country, so long as the father is not permitted to do so.

[149] She believes that if the father is permitted to leave with the child on any occasion, he will push the limits. She alleges that he does not understand and adhere to boundaries.

Father’s position

[150] The father believes that the child should be exposed to as much as possible. He raised for the first time the issue of taking Lucas to Disney World as part of an all-expenses paid trip put on by the Children’s Wish Foundation for Isabella.

[151] He believed that this was an experience of a lifetime and it would have been a wonderful experience for Lucas to be with this sister.

Analysis

[152] The Court must determine what is in Lucas’ best interests.

[153] The Court agrees with the father that travel and experiencing other places is educational and can provide an opportunity for Lucas to enjoy another aspect of the world.

[154] It is in Lucas’ best interests to permit him to enjoy these activities outside Canada, provided that the other parent is aware of the details including the itinerary, accommodation plans and contact information.

[155] The Court finds that the mother’s blanket refusal to permit Lucas to experience foreign travel is not in his best interests. This is especially true since the father’s extended family resides in Miami, Florida.

[156] Therefore, each parent may travel with the child outside Canada, provided that they obtain a written consent to travel in advance, and this consent must not be unreasonably withheld.

[157] Until Lucas is eight years old, the travel will only occur once per year with each parent.

[158] The parent travelling with the child will obtain the passport of the child. The passport will be held by the mother.

[159] The parent travelling with the child will provide all details, within 60 days of departure, including but not limited to the following:

1. Travel arrangements, including flight itineraries and local train transportation;
2. Accommodation; and
3. Contact information.

[160] The mother will cooperate with the father and provide a signed consent and a valid passport for the child. The passport must be returned to the mother immediately after the trip when the father returns the child.

What child support is payable on an ongoing basis and retroactively?

Mother’s position

[161] The mother contends that the father is underemployed, should be earning an income of $35,000 per year and pay $300 per month. She is also requesting retroactive child support.

[162] No evidence was led as to how the Court should impute this income.

Father’s position

[163] The father indicates that if there is shared parenting, he believes there should be no child support payable.

[164] With respect to retroactive child support, he indicates he made payments on the mother’s van in the amount of $400 per month for a period after the separation.

Analysis

[165] The father’s income was as follows:

(a) 2011 - $ 10,777; (b) 2012 - $ 91,931; (c) 2013 - $ 28,304; and (d) 2014 - $ 17,536.

[166] The father is certainly capable of earning income and at this time he receives $4,000 per month from his family. In addition, he is eligible for benefits as a result of Isabella’s disability. Details of those benefits were not provided.

[167] The mother requests an imputation of income. When asked, no further evidence nor in-depth analysis required under section 19 of the Federal Child Support Guidelines was provided.

[168] The father’s evidence is that he is working towards a counselling degree and would have completed the course but for this trial.

[169] Under section 9 of the Federal Child Support Guidelines and the Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217 analysis, the court considers the following:

1. mother is earning $45,000 and the father is capable of earning $28,000;
2. the mother has 3 boys for who she is not receiving child support; and
3. the father receives benefits from his family that supplement his income.

[170] The father should continue to pay child support. There should not be child support payable commencing September 2, 2016 when the parties will move to an equal time arrangement.

[171] With respect to retroactive child support, the Court considers the D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 principles and notes that the father paid for the van that the mother was driving in the approximate amount of $400 per month. Notice was provided in the answer filed by the mother. Both parties are in debt and have other children to support. Consideration must also be given to the father’s payments on the mother’s loan of $400 per month after separation. Any retroactive amount would be hardship. The Court has found no evidence of blameworthy conduct on the part of the father.

[172] Both parties are living on tight budgets and the Court notes that the father relies on family assistance to help with Isabella’s medical needs. On the other hand, the mother also receives financial assistance from her family.

[173] The father’s situation is as follows: Isabella’s horse is at no cost to him; he pays $90 per horse lesson and $100 per month for piano lessons; and singing lessons start at $25 per ½ hour per week.

[174] The mother’s 2014 income was $37,167; her 2013 income was $11,351 plus $5,456; her 2012 income was $3,388; her 2011 income was $46,373; and her 2010 income was $35,162.

[175] Isabella’s grandmother pays for her horse and provides the father with money for living expenses of $4,000 per month. The father is currently taking courses and should be making efforts to earn income to support his family.

[176] Both parties will exchange tax returns and notice of assessment by June 1st of each commencing June 1st, 2017. Child support will be reviewed on an annual basis.

Should a restraining order be made against the father?

Mother’s position

[177] The mother alleges that the father was abusive towards her on various levels: verbally, emotionally, spiritually, psychologically and financially. She felt that the father was mercurial and verbally abusive.

[178] She states that from the beginning of their marriage, he would yell and scream, go for periods of time ignoring her and her three sons, was financially unsupportive and neglectful, and accused of her not being a “godly woman”. She alleges he was overly aggressive on July 13, 2013 when he grabbed her and threw the child’s bathing suit at her.

[179] The mother began to have concerns early on in the relationship. When visiting the father at his home, she noticed that Isabella’s room did not look used at all and assumed that she slept with her father. Isabella always wants to sit on her father’s knee and lie with him on the couch. On the other hand, the father alleges that she was not supportive of the special needs of his daughter Isabella to the extent that she would mock her. The mother was openly jealous of any attention that the father showed his daughter. She displayed her anger by slamming doors, cupboards, and dishes. She was not supportive of the father while he was trying to find a diagnosis for his daughter. The father believes that the mother did not appreciate the seriousness of Isabella’s illness and the need for attentive care.

[180] Given the history of the father’s behaviour towards the mother, she is asking for a restraining order, preventing him from attending her home or workplace or from being within 500 meters of her. She is requesting that he not communicate with her directly or indirectly with the exception of emails to confirm access details. She wishes to be the sole custodial parent and the one responsable for all the child’s identity documents.

Father’s position

[181] The father presented in evidence text messages sent to him by the mother saying he was a good provider. Pre-separation text messages do not allege he is abusive, but rather complain that he is spending too much time with and devoting too much attention to Isabella. He indicates that there is no mention of abuse until after the separation in March 2014.

[182] While the father admits that he may have yelled and given her “the silent treatment”, he denies being abusive. The mother admits to mocking Isabella on only one occasion and she apologized to her and also admits to slamming cupboards when she was upset.

Law

[183] Section 46 of the Family Law Act, R.S.O. 1990, c. F.3 (FLA) states that:

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

[184] In Yunger v. Zolty 2011 CarswellOnt 10343 (Ont. S.C.J.), the mother complained of the father’s volatile temper and his emails, which contained demeaning and insulting language. Justice Herman stated that:

The e-mails and the father’s conduct, as described in the affidavits of the mother, do not rise to the level that would justify the imposition of a restraining order. The evidence does not establish reasonable grounds to fear for the mother’s safety or for the safety of the children.

[185] Justice Spies declined to issue a restraining order in Matevosian v. Ohanian, 2010 CarswellOnt 4853 (Ont. S.C.J.). In support of her claim for a restraining order, the mother relied upon her allegation that the father attended at the matrimonial home unannounced and yelled at her aggressively. The mother also stated that there had been a history of domestic abuse, which had been documented by doctors, the Children’s Aid Society and the police. The father denied the accusations. The court ordered that except to facilitate access, the father was not to directly or indirectly contact or communicate with the mother or attend at the matrimonial home or other residence of the mother.

[186] In Khara v. McManus 2007 ONCJ 223, 2007 CarswellOnt 3159 (Ont. C.J.), Justice McDermot stated that:

…an applicant’s fear of harassment must not be entirely subjective, comprehended only by the applicant. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears.

Analysis

[187] In determining whether a restraining order should be ordered the Court must determine if the mother has reasonable grounds to fear for her safety or Lucas’ safety. There is no evidence that there are any safety concerns regarding Lucas.

[188] The Court notes that on several instances during her testimony, the mother spoke in third person terms: e.g. she spoke of “an abused woman”, “that is what abused women do”, “abusive women hide it” and “it is not unusual for abused women to take a long time”, “women take their abusers back.”

[189] Her use of the third person was for her the way she was able express what she had endured and articulate it in the best way she could. The mother choosing to speak in the third person does not diminish in anyway her credibility or the events that occurred during the marriage and after separation.

[190] The Court accepts that the mother believed she was trapped in an abusive relationship and, the fact she spoke in the third person about her experience does not diminish her credibility. Her evidence regarding her experiences with the father was forthright, candid and detailed and the Court finds that she did indeed experience such behaviour on the part of the father.

[191] On the other hand, the father also feels he has been the victim as he has been characterized as a child and wife abuser. The allegations made against him regarding Lucas were hurtful and he has demonstrated his outrage about these accusations. He stated that the mother is exaggerating what occurred in the marriage, while he admits he should have realized some of the challenges involved in blending two families.

[192] In contrast, the father states that the mother was the one who showed aberrant behaviour, bullying, screaming, yelling, slamming kitchen cupboards and trying to have the children side with her. He states that she was in turn abusive, for example mocking Isabella. The mother admitted to this behavior on one occasion and has apologized for it.

[193] However, the mother’s response to his treatment of her during the marriage resulted in such a deep sense of mistrust that she believed he was capable of sexual assault, assault and of poisoning Lucas. Her retaliation was based on what she genuinely believed to be true.

[194] In the June 2015 consent order, the parties agreed that they would not attend each other’s home or workplaces and they would not communicate directly or indirectly except in the case of an emergency with respect to Lucas’ health and well-being. Arrangements regarding access were to be through Family Wizard.

[195] The father has indeed contacted the mother several times since the court order and it was not dealing with urgent matters pertaining to Lucas.

[196] Upon a review of all the evidence including the viva voce evidence of the parties and the documents filed in these proceedings, the Court makes the following findings:

• the father’s yelling, screaming and becoming angry as he did in the July 2013 incident, caused the mother to be feel vulnerable;
• the Court accepts that the mother, along with the children, were at times during the marriage cautious not to do anything that might ignite his anger;
• the mother finds the emails sent to the mother by the father, especially the latest one, unnecessary;
• the father’s recent emails to the mother show his efforts to have the mother change her mind and “fess up” to the truth. The mother finds them to be a continuation of abusive behaviour and a form of harassment;
• there was one incident of physical aggression in July 2013. Events differ about her refusal to go to Ecuador. He would not let her in the bathroom and took the phone so she could not call the police while having Lucas in her arms. The CAS worker said that he grabbed her by the waist but did not say this in her testimony. While she denied that he grabbed her leg in her testimony, it is reported in the OPS occurrence report. No charges were laid with respect to this incident;
• there has not been a pattern of harassment or intimidating behavior since the interim order stipulating non-communication.

[197] The Court will order a non-communication term as set out in the consent interim order. There is no danger or risk to the mother or Lucas and a simple non-communication order with communication only permitted if the parents need to communicate regarding Lucas is appropriate. Obviously, if the father does not respect this order, the mother is at liberty to return to court.

[198] The Court is very concerned that the issuance of a restraining order could be used in a manner affecting Lucas’ best interests.

[199] The Court finds that this case is similar to the Yunger v Zolty case and does not find the conduct since the non-communication court order rises to the level of justifying the imposition of a restraining order.

[200] The father must respect the boundaries and not engage in unnecessary communications.

Summary

[201] Therefore, for the above reasons, the Court orders as follows:

(a) the mother will have sole custody of Lucas. She will consult the father before a final major decision is made by sending him a communication through Family Wizard and allow reasonable time for him to provide his opinion;

(b) the father will have a right to obtain direct information from all professionals dealing with Lucas, including but not limited to Lucas’ school, counsellors, doctors, dentists, and activity leaders;

(c) the mother will make the final decision regarding major decisions dealing with Lucas;

(d) either party may travel with the child outside the country provided that they first obtain a written consent to travel in advance, and this consent must not be unreasonably withheld. Notice must be provided at least 60 days prior to departure in advance. The parent travelling with the child will obtain the passport of the child. The passport, which will be held by the mother, must be immediately returned to her when the father drops off the child after the travel;

(e) sixty days before the departure date, the parent travelling with the child will provide all details including but not limited to the following:

• Travel arrangements, including flight itineraries and local train transportation;
• Accommodation; and
• Contact information;

(f) commencing September 2, 2016, the child’s time with his parents will be on a week-on/week-off schedule. The mother’s time will commence after school or daycare on Friday until September 9, 2016, at which time the father will pick up the child from school or daycare;

(g) the parent who does not have the child will have Lucas overnight from Wednesday after school until Thursday morning and the pick up and drop off with take place at the school or daycare;

(h) holidays: for the summer of 2016, the father is entitled to a week with Lucas (7 days) during August. He will provide notice to the mother within 15 days from the date of this Court order concerning the 7 consecutive days;

(i) commencing in the summer 2017 and each summer thereafter, each parent will be entitled to 2 non-consecutive weeks in the summer. They will provide notice by May 1st. The mother will have priority in odd-numbered years, while the father will have priority in even-numbered years;

(j) Christmas holiday 2 weeks: will be shared equally. In even-numbered years, the mother will have the child from after school for the first week of Christmas break and the father will have the second week and drop the child off at school on Monday morning. In odd-numbered years, he will be entitled to pick up the child on Friday after school which begins the Christmas break for one week and the mother will have him the second week;

(k) Mother’s Day will be spent with the mother from 9 a.m. to 5 p.m. and Fathers’ Day will be with spent with the father from 9 a.m. to 5 p.m.;

(l) the parties will alternate March Break with the mother having odd-numbered years and the father having even-numbered years;

(m) the mother will make her best efforts to determine whether the schedule can be adjusted with Larry Kulla and Susan Phipps to allow Isabella and Lucas to be with the father at the same time;

(n) in the event that the child is not at daycare or at school for pick-up, the parties will use a neutral place for transfer of Lucas;

(o) the mother will make her best efforts to change the schedule for the boys to allow Lucas to have time with Isabella when he is with the father but also ensuring the Lucas can spend time with his brothers;

(p) the parties also agreed that they would not attend each other’s home or workplaces and they would not communicate directly or indirectly except in the case of an emergency with respect to Lucas’ health and well-being. Arrangements regarding access are to be through Family Wizard;

(q) each party will immediately advise the other parent in the event of an emergency when Lucas is in their care;

(r) there will be no communication between the parties save and except as it relates to Lucas. The parties are to utilize Family Wizard and other electronic means to communicate. The parties are not to contact each other at their place of work or residence unless it relates specifically to an urgent matter for Lucas;

(s) the father will continue to pay child support in the amount of $200 per month until the parenting time is equal on September 2, 2016. For greater certainty, his last payment will be on August 1, 2016;

(t) there will be no retroactive child support;

(u) commencing June 1, 2017, the parties will exchange their previous tax returns and Notices of Assessment. Child support will be reviewed at that time;

(v) on consent, the mother will not change the child’s surname without the father’s written consent. The parties will use an on-line program such as Family Wizard to communicate and coordinate activities for Lucas;

(w) the costs of $4,000 owed by the father pursuant to Justice Shelston’s Order remain due and owing (unless they have been paid since the completion of the trial); and

(x) if the parties cannot agree on the issue of costs, the applicant may provide his written costs submissions (not exceeding 3 pages) by July 29, 2016 and the respondent can provide her submissions (not exceeding 3 pages) by August 15, 2016.

Madam Justice A. Doyle Released: July 18, 2016

COURT FILE NO.: FC-15-674 DATE: 2016/07/18 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Hugo E. Aguirre – Applicant Self-Represented AND Christine Elizabeth Aguirre – Respondent Lisa Sharp – Counsel for Respondent REASONS FOR JUDGMENT Madam Justice A. Doyle Released: July 18, 2016