ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-17-8710 DATE: 20190503

BETWEEN:

Brenden Peter Baran, for the Applicant Counsel: Carol Allen

• and -

Jessica Mary Baran, for the Respondent Counsel: Esra Samli

HEARD: April 15, 16, 17, 18, 23 and 25, 2019

REASONS FOR JUDGMENT

Sproat J.

I. Introduction

[1] A brief chronology of the parties’ relationship is as follows:

a) October 17, 2009 – married after meeting in 2008. b) May 1, 2015 – son Bodhi born. c) October 5, 2016 – parties separate. d) March 31, 2017 – court order for supervised access. e) April 21, 2017 – court order for unsupervised daytime access twice a week. f) July 7, 2017 – court order for unsupervised access alternate weekends and one overnight per week.

[2] Brenden seeks an order for joint custody with Bodhi alternating weeks with each party. Jessica seeks sole custody with a continuation of what is essentially the current access schedule.

[3] The parties, to their credit, entered into an extensive Agreed Statement of Facts. In reviewing the evidence of the parties I will include reference to certain relevant agreed facts.

[4] As I review the evidence I will make certain findings, however, all such findings are based on the totality of the evidence and taking account of any comments later in these reasons as to the credibility and reliability of the evidence given by the witnesses.

II. EVIDENCE

Introduction

[5] Brenden testified as did his parents Ron and Jeannette, sister Audra Baran, brother-in-law Bradley Ungar and friend Kim Shallcross.

[6] Jessica testified as did her mother Denise Morris, sister Catherine Morris and former co-worker Pauline Wood.

[7] The parties and witnesses agreed to counsel addressing them by their first name and I will do the same.

Brenden and Jessica

[8] Brenden is 40 years old. As Ron described, in elementary school he was diagnosed with a learning disability which causes him problems in processing information and expressing himself. In stressful situations his speech becomes disjointed which no doubt exacerbates the stress. As a young man he struggled with depression and anxiety.

[9] Ron testified that Brenden is more calm today but observed that a learning disability is for life but you can work around it. I am not relying upon that as an expert medical opinion, but I did interpret it to mean that Ron still observes at least some of Brenden’s earlier behaviours. Brenden has not been able to establish himself in a career such that he is economically self-sufficient.

[10] In 2005 Brenden, years prior to meeting Jessica, purchased a house in Thornbury. This became the matrimonial home and is where he still resides. His parents, sister and brother-in-law and their two year old son all reside in Thornbury.

[11] Ron and Jeannette paid for a lawyer when Brenden assaulted Jessica and for marriage counselling when they reconciled. They supplemented Brenden’s and Jessica’s income on an ongoing basis throughout the relationship. They offered to pay for Bodhi to attend a Montessori school.

[12] Jessica is 36 years old. She had a retail job when she met Brenden and then began an apprenticeship to become a hair stylist. This led to both Brenden and Jessica attending Marvel Hair Stylist School in Barrie in 2010. The $14,000 tuition was paid by Ron and Jeannette who also provided the parties with $1,500 per month to subsidize their living expenses while in school.

[13] Jessica and Brenden had a still birth prior to Bodhi which was naturally upsetting to both of them. I think this caused Jessica to be hyper-vigilant about Bodhi’s safety.

[14] Jessica lives in Collingwood while her parents and sister Catherine live near Thornbury.

[15] On September 24, 2010, while Brenden was driving Jessica to or from school in Barrie, there was an altercation. Someone must have observed it and called the police. The police stopped their vehicle. Brenden described that they were pushing or hitting at each other. In cross-examination Brenden acknowledged striking Jessica in the face by accident and grabbing her hair. Jessica testified that when she spoke to the police she downplayed the incident as she was “not sure what she would get” when she got home if she told the police she was struck in the face. No charges were laid.

[16] In January, 2011 Brenden pushed Jessica and she fell down stairs. Brenden said while he intended to shove her he did not intend that she fall down the stairs.

[17] Brenden acknowledged that in May, 2011 he had pleaded guilty to assaulting Jessica on March 12, 2011. Brenden admitted that he had punched Jessica in the face, pinned her to the wall and tightened a scarf around her neck to the point that she could not breathe.

[18] Brenden was given a conditional discharge and was put on probation for one year which required him to attend a Men’s Program. Following this Jessica consented to waive the no contact provision in the probation order and they immediately reconciled. Jessica testified that she did so because she believes in second chances. Brenden’s behaviour was better for a while then began to regress starting with “verbal lashings”.

[19] Following Bodhi’s birth Brenden was working at three jobs and said he was stressed. Brenden’s parents agreed to provide financial assistance to allow Brenden and Jessica to open their own salon. They devoted themselves to this working long hours in the summer of 2016 to get ready and they opened the Hair Apothecary Studio on September 1, 2016. According to Brenden, the long hours and financial uncertainty increased the stress.

[20] On October 5, 2016 the parties went to stay overnight at Brenden’s parents’ home. Brenden testified that there was an argument prior to entering the house. Jessica was upset because he had yelled at, and then tapped on the nose, one of their dogs that strayed near the road. They then went in the house and all appeared normal. The next day Jessica left with Bodhi. According to Brenden he had no idea of why Jessica left. Brenden’s parents testified that they did not notice anything unusual in Jessica’s demeanor when she arrived that evening.

[21] According to Jessica, Brenden hit the dog with a rubber shoe and, when she objected, grabbed her by the wrists and slapped her in the lower back. As a result she was crying. She left Brenden the following day. She and Bodhi lived in a women’s shelter in Collingwood for three months.

[22] As Jessica testified, opening their own salon was like a dream and she would never have walked away from that for no reason. During the trial Jessica would sometimes cry listening to certain evidence and then compose herself. That is probably what she did that evening to avoid embarrassment and questions from Brenden’s parents.

[23] Brenden was charged that he assaulted Jessica on October 5, 2016. He was found not guilty at his criminal trial on December 7, 2017. On a balance of probabilities, however, I find Brenden did commit the assault as Jessica described. Her evidence that this precipitated the separation makes more sense than his evidence she left for no apparent reason.

[24] Jessica testified that over the course of the relationship Brenden would also attack her verbally such that at times she felt unwanted and useless. I accept her evidence and conclude that, like the physical aggression, Brenden was typically the aggressor in verbal attacks and Jessica seldom responded in kind.

Bodhi and His Relationship With His Parents

[25] Bodhi’s fourth birthday was May 1, 2019.

[26] Brenden described Bodhi as happy, eager to learn and inquisitive. In his view Bodhi was meeting his developmental milestones and had no special needs. Brenden described Jessica as a caring, nurturing and loving mother.

[27] Jessica described Bodhi as happy, good natured and compassionate. She agrees that he has no special needs and is meeting his developmental milestones. Jessica also agreed that from what she has seen and heard Brenden is a good dad and Bodhi has a strong bond with him. She wants to foster their ongoing relationship.

[28] After the separation Brenden had no contact with Bodhi until Jessica started to allow supervised access which started November 3, 2016. Supervised access continued until April 21, 2017. Since July 7, 2017 he has had alternate weekend and mid-week overnight access.

[29] Brenden’s brother-in-law Bradley Ungar testified. Bradley and his wife Audra moved to Thornbury 10 months ago and have been living with Brenden’s parents. As such, they see Brenden and Bodhi all the time. Bodhi particularly enjoys playing with Bradley’s two and a half year old son.

[30] Since moving to Thornbury Bradley has participated in virtually all of the exchanges of Bodhi between the parties. He has never noticed any difficulty.

[31] Bradley described Brenden as being very attentive to Bodhi and having a very loving relationship. Brenden makes special and healthy food for Bodhi. Brenden has worked on his toilet training. Brenden will search out and take Bodhi to community events such as ones where he can see trains or Lego. Bradley said that Brenden is literally the one person they would trust to care for their son Cyrus.

[32] Audra Baran similarly testified to a close and loving relationship between Brenden and Bodhi. She described various activities they liked and it was commendable that they typically involved community, outdoor activities and not screen time. She has witnessed Brenden correct Bodhi but in a kind yet firm way. She has never heard him speak to Bodhi in an angry voice or swear in front of him. She has never heard him make negative comments regarding Jessica.

[33] Audra said that she and Bradley have flexible schedules and work from home. They would be prepared to help Brenden with transportation. Audra described herself as very careful with Cyrus but said that she was completely confident in leaving Cyrus with Brenden. She has observed Brenden working with Bodhi on his toilet training. She also described Bodhi as having a very close relationship with his paternal grandparents.

[34] Ron and Jeannette have a loving relationship with Bodhi and are very supportive of Brenden. They are, however, away for approximately five months in the winter.

[35] Jessica’s mother Denise testified. She and her husband of 32 years live near Thornbury and their four daughters all live in the general area. Denise and her husband have a loving relationship with Bodhi. They see Bodhi two or three times a week. Sometimes Jessica and Bodhi stay overnight. On occasion they take their children and all their grandchildren on overnight trips such as to Toronto to visit the Science Centre. Denise and her husband are prepared to provide ongoing assistance to Jessica. Denise described Jessica as a very good mother with a close relationship with Bodhi.

[36] Jessica’s sister Catherine testified. She lives near Thornbury and has two children. Catherine sees Bodhi frequently and Bodhi loves her children. She is the go between at the access exchanges. She agreed that Jessica is an exceptionally good mother.

Health Issues

[37] Jessica is hyper-vigilant when it comes to Bodhi’s health, which is not a negative. For example, by most standards she over reacted to Jeannette leaving Bodhi in the car when she was only a short distance away and in sight of the car. There is, however, no doubt that Jessica will be alert to all of Bodhi’s medical needs and safety issues.

[38] Brenden failed to get medical attention for Bodhi after Brenden’s vehicle hit a deer. I can see how reasonable parents could differ on whether Bodhi needed attention given he was secured in a car seat and initially had no symptoms. I do think, however, in Bodhi’s best interests Brenden should have been more forthcoming in answering Jessica’s questions about the nature and extent of the accident.

[39] It was only long after the fact, when they tried to reconcile, that Brenden shared with Jessica that Bodhi had fallen into a pool and had been pulled out quickly. It upset Jessica that she was not notified at the time because she immediately recognized a possible safety concern, of what is sometimes called secondary drowning, in this scenario. The concern being that water has entered the child’s lungs and there is a delayed impact that impairs breathing. There was no indication that Brenden turned his mind to this possible concern. Jessica was also upset because she had noticed signs Bodhi was afraid of the water and she had no idea why.

The Mars Unit

[40] Kim initially met Brenden’s parents and later became a friend of Brenden. Kim described herself as a doctor of natural medicine which is a discipline that uses natural medicine and natural forces to enhance healing processes in the body. She described her discipline as “slightly outside naturopathy”. This is obviously not a regulated health profession. There was no evidence that Kim had any university level scientific education.

[41] Kim testified that she invented the Mars unit which replicates the natural energy found at natural healing sites around the world. The unit creates an environment that the body can heal in. To benefit you need to be within four feet of the unit for a prolonged period of time.

[42] When she initially sees a patient she usually tests the patient’s “aura” and measures the electrical resistance in the patient’s body to determine if there is an energy imbalance. While Kim prefers to assess a patient before starting treatment it is not necessary to do so.

[43] Kim testified that Laurentian University says that the Mars unit is safe. The basis for this was not explained nor was it explored in cross-examination.

[44] Kim testified that the Mars unit has helped with her multiple sclerosis. This was of interest to Brenden’s parents whose oldest daughter, now deceased, suffered from multiple sclerosis. On occasion, prior to separation Ron, Jeannette, Brenden, Jessica and Bodhi used the Mars unit in the sense of sleeping or sitting next to it for periods of time.

[45] Kim noticed that Bodhi had a left side weakness and this raised in her mind a concern of multiple sclerosis. She testified that she communicated that to Jessica. Obviously she would also have expressed that concern to Brenden. Kim testified that she never provided medical services or treatment to Bodhi.

[46] Jessica’s evidence was the Barans’ belief in the Mars unit caused her to feel pressure to agree to treatment and she did so. Kim, however, would not give her straight answers as to how the unit worked and as to its safety.

[47] Brenden’s evidence was that for a period of time Kim occupied part of the salon and met clients there. Brenden acknowledged that there may have been occasions when the machine was turned on and Bodhi was in the vicinity. He denied that there was ever a time, post separation, when Bodhi was being treated with the Mars unit.

[48] Jessica called Pauline Wood as a witness. Pauline worked in the salon for approximately 18 months. She testified that Kim used part of the salon to treat clients with the Mars unit.

[49] Pauline testified that she asked Brenden whether it was wise to use the Mars unit on Bodhi given he was a child. She quoted Brenden as saying that he thought that Bodhi had some of the same issues that Brenden had and he wanted to help him. She told Brenden she did not think this was a good idea. Pauline described Brenden as going “ballistic” and saying that Bodhi was his kid. She, therefore, dropped the subject.

[50] In cross-examination she said that she saw Bodhi sitting on Brenden’s knees while Brenden was “on” the machine, by which she meant by sitting in close proximity to it.

III. THE LAW

[51] The best interests of Bodhi are paramount. The general principles are well known and not in dispute so I will only make a brief reference to them.

[52] The Divorce Act s.16(8) - (10) provides as follows:

Factors

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

Past conduct

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[53] I agree with the observations of Forgeron J. in MacNeil v. Playford, 2008 NSSC 268 as follows:

[10] Parental conduct, including domestic violence, may affect the ability of a parent to provide proper care, nurture and example to his/her child. Domestic violence demonstrates an inability to problem solve in a healthy manner. Domestic violence shows the absence of respect and dignity for the other parent. Domestic violence demonstrates a reactive personality with poor impulse control. Domestic violence is emblematic of poor parenting skills.

[11] Domestic violence will usually impact on the court’s determination as to whom should be assigned primary care of a child. This is one factor, albeit a significant one, which determines the best interests of the child. The seriousness of the assaults, the frequency of the assaults, the circumstances of the parties, and the circumstances of the child, all must be examined and balanced in determining the best interest of the child.

IV. ANALYSIS

[54] The central question is whether it would be in the best interests of Bodhi to have week about shared custody or, in the alternative, to have increased access time with Brenden.

[55] Brenden and Bodhi have a good, loving relationship. Brenden has strong family support. He and Bodhi enjoy their time together. Having said that, to make and explain my decision, I need to refer to certain concerns regarding Brenden.

[56] There is a history of domestic abuse. It started when Brenden was in his early thirties. Brenden attributed it to the fact he and Jessica were under financial stress and working long hours. I acknowledge that Brenden participated in a Men’s Program and that he takes ongoing relationship counselling. The fact remains that on occasion from 2011 – 2017, when under stress, he behaved in a completely unacceptable and criminal manner.

[57] As it relates to our case, I paraphrase from MacNeil. Brenden’s domestic violence and verbal abuse demonstrate an inability to problem solve in a healthy manner; a lack of impulse control and a lack of respect for Jessica. This impairs his ability to provide an appropriate example to Bodhi.

[58] While children are wonderful there is no doubt increased child care responsibilities, while Brenden is working hard to become financially self-sufficient, could increase his stress. Were that to occur it could well have a negative impact on Bodhi.

[59] I will next address whether Bodhi was treated by the Mars unit. Brenden is a friend of Kim and a true believer in the Mars unit. Wood was an independent witness and not seriously challenged in cross-examination. I accept her evidence that Brenden told her that he believed Bodhi had some of the same issues he had and that he thought Bodhi would benefit from the Mars unit. She saw Brenden sitting in a chair holding Bodhi in the salon area that housed the Mars unit. Brenden went ballistic when she questioned whether Bodhi should be “on” the Mars unit by which she meant within a few feet. Brenden also had in mind from Kim that there was a concern Bodhi might have multiple sclerosis. These were compelling reasons why he would want Bodhi to have treatment. As such, I find that Bodhi was being subjected to ongoing Mars unit treatment by Brenden.

[60] Based on the evidence at trial I think that Brenden exercised poor judgment in exposing Bodhi to treatment by the Mars unit. I also find that he was less than candid with Jessica and the Court about this topic. He was also not forthright as to the events of October 5, 2016. This raises a concern that he also might not be forthright in dealing with Jessica in relation to matters affecting Bodhi in the future. In other words, he might withhold or falsify information if it suited his purposes.

[61] Ron, Jeannette and Audra were generally critical of the fact that post-separation Jessica insisted that access be supervised. I understand the Barans’ perspective. They are good people and would never harm Bodhi. I also, however, understand Jessica’s perspective. In fairness to Ron, Jeannette and Audra I suspect they did not fully appreciate the extent of the domestic abuse which would make it more difficult for them to appreciate and have empathy for Jessica’s perspective.

[62] I have already reviewed the nature and extent of the domestic abuse. Jessica knew that by separating she was probably ending their joint dream of a salon and prejudicing the investment by Ron and Jeannette. She had seen Brenden react violently to far less provocation. She wanted to be as sure as she could that Brenden would not react in an unexpected manner to the separation. Given the admitted abuse she had suffered, I cannot fault her for that.

[63] Jessica impressed me as being very caring, competent and organized. Her notes in the communication log were extremely detailed and directed to ensuring that Brenden was up to date on any issues and provided information so that Brenden could continue her efforts on issues such as toilet training. Brenden’s entries were less detailed even taking into account that as he had Bodhi less of the time there was less to report.

[64] Jessica seems very diligent, such as by visiting a prospective elementary school for Bodhi and speaking to the staff. When she takes Bodhi shopping she takes pictures of certain items they want to purchase with the name printed out so that Bodhi can help locate the item in the store and then associate it with its name.

[65] In contrast to Brenden, I have no concern about Jessica’s ability to parent and to make appropriate decisions in relation to matters such as Bodhi’s education and medical care.

[66] By all accounts Bodhi is thriving with the current arrangements. The focus must be on the best interests of Bodhi and not on whether Brenden or his family would enjoy more time with Bodhi.

V. CONCLUSION

[67] I, therefore, find that it is in the best interests of Bodhi that Jessica have sole custody and primary care of Bodhi and that the total access time Brenden has with Bodhi remain at essentially the level it is now.

[68] The current arrangement is:

a) Wednesday noon to Thursday noon every week. b) Saturday noon to Monday noon alternate weeks.

[69] Thus, Brenden now has Bodhi 4 days in a 14 day period. Bodhi starts school in September which will necessitate a change to the current arrangement.

[70] Ms. Samli proposes that as of September 1, 2019 the schedule be:

a) Friday 3:30 p.m. to Sunday 6:30 p.m. alternate weekends. b) Wednesday 3:30 p.m. to Thursday at 6:30 p.m. on the off weeks.

[71] On this schedule Brenden has Bodhi approximately 3 days plus 6 hours in a 14 day period which is less than at present. It would also mean that Bodhi would have to go almost 10 days without seeing Brenden (from Sunday 6:30 p.m. in week one, to 3:30 p.m. Wednesday in week two which is close to 10 days). I find that it would be more reasonable for the access to be every Wednesday 3:30 p.m. to Thursday at 6:30 p.m. While this gives Brenden slightly more access each week I think it better reflects the current arrangement than having only alternate week mid-week access. The two additional exchanges every 14 days should not be a hardship. If the parties have any different days or times they agree upon to allow Brenden access they can incorporate that in the draft order to implement these reasons.

[72] I, therefore, grant an order in the form drafted by Ms. Samli except that:

a) Paragraph 3(iii) shall be amended to delete the words “on the off-weeks”. b) Paragraph 3(iv) shall be amended to read, “Weekend parenting time will include Friday Professional Development days so that Brenden Peter Baran shall have Bodhi Baran, born May 1, 2015, from Thursday after school”. c) The order shall incorporate paragraphs 7, 8, 9, 10 (except that Jessica shall keep the original birth certificate), 13, 23, 24, 25, 26 and 27 of Ms. Allen’s initial draft order respecting certain routine parenting and travel matters. d) The order shall include that Brenden shall not treat, or permit Kim to treat, Bodhi in any manner including with the Mars unit.

[73] If the parties cannot agree, I reserve the right to fine tune any provision of the order, or add ancillary provisions such as relating to access exchange locations, as may be necessary to fairly reflect my reasons for judgment. If any such issue arises and the parties cannot agree, each party shall provide me with their proposed draft order and brief written submissions to support their position.

[74] Ms. Samli shall provide me with her written costs submissions within 20 days. Ms. Allen shall respond within 20 days. Reply, if any, within a further 7 days.

Sproat J.

Released: May 3, 2019