Court File and Parties
Court File No.: F1661/9-4 Date: August 7, 2019 Superior Court of Justice – Ontario Family Court
Between: M.H., Applicant Hamoody Hassan, for the applicant
And: J.E., Respondent Lawrence Blokker, for the respondent
Heard: January 21, 22, 23, 24, 2019; April 1, 2, 3, 4, 5, 15, 2019; and June 3, 4, 5, 2019
Tobin J.
Reasons for Judgment
[1] The issues on this motion to change are:
(a) whether the existing joint custody order should be changed by:
(i) modifying some of the times the children will be in the care of each parent; or
(ii) placing the children in the custody of the father, with defined access to the mother;
and
(b) the amount of child support to be paid, and by whom.
The Parties and Children
[2] The respondent, J.E. (“the mother”), and the applicant, M.H. (“the father”), are the parents of two children, E.H. (E.), born […] 2004 and C.H. (C.), born […] 2008.
[3] By consent order of Templeton J. dated September 20, 2010, the mother and father were granted joint custody of the children. The children were placed in the care of the mother and the father based upon a two-week rotation. The children would be with the mother for eight days, and then the father for six days. The order, which gave effect to minutes of settlement entered into by the parties, also addressed special occasions and other incidents of parenting responsibilities.
[4] The mother brought a motion to change that was issued June 6, 2016. The father’s response to motion to change was sworn January 6, 2017.
Position of the Parties
[5] On this motion to change, the mother asks that:
instead of the parenting time exchange taking place on Sunday night at 8 p.m., that it take place at 7:30 p.m. This will give C. a little more time to settle following his return from father’s home before going to bed;
that the Thanksgiving holiday weekend be shared;
when the father is away for more than seven days while the children are scheduled to be in the father’s care, then the children will reside in the mother’s care during the weekdays and, if they want, with the father’s family on the weekend; and
the father pay child support to her for the two children based on his current income of $90,466.04 and her income of $12,048 in the amount of $1,311 pursuant to s. 9 of the provincial Child Support Guidelines, O. Reg. 391/97.
[6] The father asks:
that he be granted custody of both children; and
that the mother have access with E. subject to her wishes and with C. on alternate weekends and every Wednesday overnight and that holiday time be shared subject to E.’s wishes for herself.
[7] The father claims that the change is necessary because:
the safety of the children, both physically and emotionally, are at risk while in the mother’s care;
the children are chronically late or absent from school while in the mother’s care;
he will enrich the children’s lives, where their mother is not interested in doing so;
he will provide more reliable care and routine; and
the mother exposed the children to domestic violence, or risked doing so, as a result of her relationship with her husband, S.E.
Credibility of the Parties
[8] The evidence given by the mother and the father regarding the events that transpired and which give rise to this case was similar. They differed significantly in what inferences should be drawn from the evidence. Both parties submitted that they were more credible than the other. The mother submits she is the more believable witness because she readily acknowledged parenting behaviour on her part of which she “was not proud.” The mother submits that the father would not acknowledge inconsistencies in his evidence or facts independently corroborated.
[9] The father asks the court to consider inconsistencies in the mother’s evidence and the failure of the mother to call her husband, from whom she is now separated, as a witness.
[10] There were circumstances where the evidence of the parties differed.
[11] In some instances, I have preferred the evidence of the father and, in others, the evidence of the mother. Where their evidence differed, I looked for and considered corroborating or confirmatory evidence, as well as considered the internal consistencies or inconsistencies of the evidence. Also considered were the level of candor and acknowledgement of questionable behaviour.
Facts
[12] The parties began their relationship in March 2002. Their first child, E., was born […] 2004.
[13] In July 2007, they began living together but separated in March 2008.
[14] Their second child, C., was born […] 2008.
[15] After a lengthy litigation process, the parties came to an agreement on the eve of trial and entered into minutes of settlement. The settlement reached was given effect by the order of Templeton J. made September 20, 2010.
[16] The order provided, in part, as follows:
the father and the mother were granted joint custody of the children;
(a) the children were to be in the care of the parents on a rotating schedule: eight days with the mother followed by six days with the father: the children were to be with the father from Tuesday at 5 p.m. until Sunday at 8 p.m. and with the mother from Sunday at 8 p.m. until the second Tuesday after at 5 p.m.;
(b) parenting time during defined periods was also set out, including school holidays and other special times;
paragraph 3 of the order provided:
Either party may designate an adult family member to assist with the children’s care or handle exchanges.
child support was calculated on a set-off basis, with the father paying $534 per month. His income was then $56,917 and the mother’s income was assumed to be $21,000 “although she does not presently have that income.”
[17] After the order was made and for the next five years, the terms of the order guided the parties’ parenting arrangement but they modified it when necessary to meet the needs of the children.
[18] They appeared to co-parent well, communicating by phone, text and in person.
[19] One of the changes the parties made was that the return time on Sundays to the mother’s home was at 7 p.m. instead of 8 p.m. This change was made to meet the bedtime needs of the children.
[20] Another change concerned the father’s need to travel for his employment. His employment required him to travel away from London a few times each year for a number of weeks. While he was away, the children remained in the care of the mother. When he was away for shorter periods, the children would, on occasion, stay with his parents (the paternal grandparents).
[21] Text messages filed in evidence by the mother reveal polite and accommodating communication between the parties.
Thanksgiving 2015
[22] In the fall of 2015, the father was out of town for an extended period because of his employment. While he was away, the children were in the care of the mother.
[23] The parenting schedule would have seen the children be in the father’s care during the 2015 Thanksgiving long weekend, if he had been home.
[24] Approximately two weeks before the Thanksgiving long weekend, the mother and father spoke about arrangements for that weekend.
[25] The parties’ evidence regarding the Thanksgiving weekend arrangements were similar and, where they differ, I accept the mother’s evidence. She described the arrangements in an objective and detailed manner. The father, on the other hand, described them as his expectations and with less detail.
[26] The evidence, which I accept, is that the mother told the father that her family’s Thanksgiving dinner was scheduled for Sunday. The father did not object – according to the mother, he said that was fine – but asked that the children be allowed to spend some time with his parents that weekend.
[27] About a week before the Thanksgiving weekend, the mother and father had a text exchange in which the father changed his mind and wanted the children to go to the paternal grandparents’ home for the weekend. The mother objected because they had already discussed the matter. Her family would be celebrating Thanksgiving on Sunday.
[28] The children stayed with the mother that weekend until Monday at 10 a.m., at which time they went with the paternal grandparents for the rest of the day.
[29] About two weeks after the Thanksgiving long weekend, the father sent a text to the mother letting her know that he was returning home the Friday night of a Hallowe’en party at the children’s school. Even though he was returning on a day that was on his parenting time, he wanted the children to be able to enjoy the party and suggested that the children stay with the mother on the Friday and that he would pick them up on Saturday morning. The mother said okay.
The Father Travels for Work in January 2016
[30] In January 2016, the father again had to be away from home for work: this time for six weeks. He wanted the paternal grandparents to look after the children during his parenting time. He also insisted that the Sunday return time revert to 8 p.m.
[31] In advance of his travel, the father brought a motion to amend the police enforcement provision of Templeton J.’s order. This motion was resolved by order of Henderson J. dated January 8, 2016, which gave effect to a consent whereby the police enforcement clause that was originally contained in the order of Templeton J. was set out in more detail.
[32] In his endorsement, Henderson J. indicated, with respect to para. 3 of Templeton J.’s order (designating an adult family member to assist with care and exchanges), that it “is vague on its face …”
[33] Since January 2016, at the father’s insistence, the children have been with the paternal grandparents during the father’s scheduled parenting time while he is away. As well, the Sunday return time has been 8 p.m. as provided for in Templeton J.’s order. As a result of these changes, the mother attempted, on her own, to bring motions to change Templeton J.’s order. Her first two attempts ended very shortly after they were started, without any change to the order and without costs being ordered.
[34] The motion to change that is before the court now is the mother’s third attempt and was issued on June 6, 2016. In this motion to change, the mother sought some refinements to the provisions of Templeton J.’s order.
[35] As is often the case in family law proceedings, the circumstances of the parties and their children did not remain static. They have had to address a number of parenting issues that arose after the start of this case. Unfortunately for all, these parenting issues have and continue to be viewed and acted upon by the parties through the prism of this litigation.
E.’s Mental Health
[36] In the fall of 2016, E., who was then 12 years old, experienced mental health problems in the form of anxiety. The mother took her to see a doctor on September 15, 2016. The mother sent the father – who was away for work at the time – a detailed email about the appointment. She emailed the father to let him know that the doctor diagnosed E. with obsessive compulsive disorder and general anxiety, and that she was put on a wait list for group cognitive therapy. The father responded that he appreciated the mother’s thorough report. However, he insisted that while he was away, his parents care for the child during his scheduled parenting time. This was his position despite the mother advising him that the children wanted to stay with her and she asked why, after six years of leaving them with her, he decided otherwise.
[37] E. was very close with her mother. She looked to her for support, reassurance and comfort.
[38] On September 22, 2016, the mother and E. had a text message exchange. E. was in the care of the paternal grandparents because the father was out of town. E. texted her mother about telling a girl that she had a crush on her and that the girl had not responded. E. was scared and upset. She wanted the mother to come and pick her up. Through this text exchange, the mother comforted and provided reassurance and support to E. She also explained in an appropriate manner why she could not bring her home.
E. has a Panic Attack at School
[39] On October 6, 2016, the children were still with the paternal grandparents as the father was out of town. That day, E. phoned or texted the mother, asking her to pick her up because she was having a panic attack.
[40] The mother was unable to go to the school to pick her up, so she asked the maternal grandmother to do so, which she did. The maternal grandmother took E. to her home and the mother arrived shortly afterward.
[41] The maternal grandmother saw the child and described her as being in a very anxious emotional state and almost inconsolable. The mother described E. as crying a lot and upset.
[42] The mother brought the child to her home and sent the father an email at 12:32 p.m. explaining what had happened and where E. was. She asked that the father allow the mother and daughter the afternoon together so she could provide the support the child needed.
[43] The father responded by email approximately 15 minutes later that the paternal grandmother would be at the access exchange location at 1:30 p.m. to pick up the child. He added:
In future please contact myself or one of my designates if one of the kids needs to leave school and we will arrange it. I will be contacting the school to ensure the kids are not released to anybody but me or my designates during my parenting time.
[44] Once the paternal grandmother arrived at the access exchange location, she and E. had a text exchange. The paternal grandmother insisted E. go with her. E. insisted that she wanted to stay with her mother. The paternal grandmother waited at the access exchange location until she had to leave to pick up C. from school and then returned to that location with C. and waited. She waited until approximately 4:30 p.m. before leaving.
[45] E. texted the father, asking that she be allowed to stay with her mother. Permission was not given.
[46] E. stayed with her mother until the next afternoon when she returned to school. The father returned to London that day and insisted that the child go to school.
[47] It is clear that, on that occasion, E. needed to be with her mother. She was the person the child needed at the time for comfort and security. On this occasion, the father put his perceived parental right for parenting time ahead of what was in the child’s best interests, that is, to be cared for by her mother.
Keeping a Secret
[48] In November 2016, the father was required to leave London for work.
[49] On this occasion, the parents had to deal with E.’s perception that the father wanted her to keep a secret – that the father was going to be out of town for work and that she was not to tell the mother.
[50] The mother observed that E. was upset but not willing to speak with her about why. At the urging of the maternal grandmother – who E. did tell the secret – she told the mother. When the mother learned why E. was upset, the mother emailed the father to complain about his action. The father responded by saying he “[s]imply told [the children] that I had to leave for work for a while and that I would be telling you. They were not asked to keep anything from you …” I find that the father left the impression with E. that she was bound to keep a secret and this caused her distress. It is of concern that the father could not appreciate or accept the child’s perception of his words to her.
Counselling for E.
[51] During the fall 2016, the mother remained concerned about E.’s mental health. In her November 29, 2016 email to the father, she described the child as crying “every day and many times throughout,” convinced she had a physical problem in her leg, not wanting to do things she enjoyed and telling the mother she loves her “at least 20 times a day.”
[52] On November 28, 2016, E. would not go to school. The mother was referred to Craigwood, where they have a social worker trained in youth and adolescent mental health.
[53] The child eventually was referred and attended for counselling through the Children’s Hospital.
[54] The parties filed a discharge summary from the Child and Adolescent Mental Healthcare Program of the Children’s Hospital for the truth of its contents. The discharge summary disclosed that E. participated in an 11 session Cognitive Behavioural Therapy (CBT) group from January to April 2017. The parents also attended an 11-session parent group on anxiety. The discharge report states that, while some aspects of E.’s mental health were better, she still appeared to describe significant social anxiety and a specific phobia of needles. On discharge, the parents and child were encouraged to use the CBT strategies learned in her relapse prevention plan.
[55] At present, E. attends for counselling with Heather Chandler, a counsellor arranged by the father beginning in November 2017. The father arranged for this counselling because E. asked him to do so. There was a breakdown in communication between the mother and father regarding arranging for a counsellor. The father wanted to arrange this counselling through his employee assistance program. The mother wanted a person who would be available for the long-term. The father made the arrangement to engage counselling because he was of the view that the mother was not dealing with this issue fast enough. I accept his evidence in this regard. However, he did not tell the mother in advance he engaged Ms. Chandler because he knew “the lengths” the mother would go to, to prevent it from happening.
[56] The father emailed the mother about engaging Ms. Chandler the day of the first appointment.
[57] The substance of this counselling and evidence of Ms. Chandler is addressed later in these reasons.
Grade 8 Graduation
[58] In June 2018, E. was scheduled to graduate from grade 8. This was an important event for the child. One aspect of this event was the purchase of her graduation dress. This was to take place in May 2018. The mother wanted to be part of this, but she was not. The father had the paternal grandmother, his girlfriend and his sister take E. to purchase her graduation dress. He did not arrange for the mother to participate. Instead, he said they were running out of time and decisions had to be made, so he made them.
E.’s High School Registration
[59] E. chose to go to a high school that was quite a distance from the mother’s home and not easy to get to. It required her to take two city buses to get there. It was the mother’s understanding from E. that she wanted a fresh start at a school where no one knew her. They would not know that she was gay and that her parents were separated.
[60] The mother was concerned about the appropriateness of E.’s choice because: (1) E. had social anxiety and would be going to a school where she did not know anyone; (2) she did not know what support E. would have as a gay person in a high school in separate system; and (3) the school was far from the mother’s home: three days a week, she would need to leave at 6:30 a.m. and, on the days that she had band, she would need to leave at 6 a.m.
[61] The issue of E.’s high school registration was raised in a meeting the parents had with the Children’s Lawyer’s clinician. The clinician made a recommendation about how the parents could address the issue. The father left the meeting thinking that the registration was agreed to, but the mother did not. I accept the father’s evidence that there was a process and an understanding that registration would take place at the high school E. chose. This is confirmed in the evidence of the clinical investigator. I accept the clinical investigator’s evidence that the plan was to use the first term at high school as a trial run to see how she managed her anxiety and getting there. They were going to have E. use the bus, preferably on a Saturday in the winter, to go back and forth from the high school and stay up all day, so she could create what it would be like on a typical school day. As well, they were going to ask E. to list the pros and cons of going to that school.
[62] On February 27, 2018, the father registered the child at the high school because he thought the mother had agreed. He supported the child’s choice. He expected that the paternal grandparents would be able to drive E. to school. He did not tell the mother that he registered the child because he did not want to communicate with her any more than he had to.
[63] Some months later, the mother received a welcome email from the school. After receiving this email, the mother called the school and spoke with the vice principal. She asked that the registration be put on hold. She explained her concerns to the vice principal as follows: (1) the father registered the child without her knowledge; (2) the child had social anxiety; (3) the child had no friends at the school to help her navigate high school; and (4) the child was gay and would be attending a separate school. She did not know what, if any, supports her daughter would have there.
[64] The mother did not tell the father that she called, as she understood that the school official would.
[65] The vice principal did call the father and relayed to him the mother’s concerns regarding E.’s mental health and sexual preference.
[66] The father told E. what the mother reported to the school, including her concerns arising from the child’s sexuality. The father’s rationale for telling this to the child was to give her a “direct, honest answer … she had the right to know the truth.”
[67] When E. learned this from the father, she was very mad and upset with her mother. She believed that her mother “outed her” to the school and took away her chance for a fresh start. E. was so upset that she did not return to the mother’s home in accordance with the regular schedule for approximately two months.
[68] I find that neither parent handled this incident well. While the mother had reasonable concerns as a parent, the lack of communication with the father and the child before contacting the school made the situation worse.
[69] But what is most troubling about this and most telling about the father’s respect for the mother’s and E.’s relationship was the father advising the child everything the mother said to the vice principal. I find on the evidence that the father was motivated to undermine E.’s relationship with the mother. It has caused a rift in what was once a very close and supportive relationship. The child may not confide in the mother as she once did. In the context of this strain on the mother and daughter relationship, there is evidence, and I accept, that the father has told the child she may choose where she wants to live. The father gave E. a choice that he knew, or expected, would favour his desired outcome of this case. On an earlier occasion – the panic attack incident – he insisted that the order be complied with.
[70] The child’s registration was reactivated in consequence of the father bringing a motion for this relief. She now attends at that high school, where she has been doing well. After a few months, E. found a peer group and joined the school band. Despite the distance from the mother’s home, her attendance has been regular.
Domestic Conflict: the Mother and S.E.
[71] The mother and S.E. (“Mr. E.”) met in 2012, started living together in July 2013 and married on […] 2014.
[72] They separated on […] 2017.
[73] While together, Mr. E. and his son, who is a little older than C., lived with the mother and two children.
[74] There was some conflict in this relationship, not physical violence, but verbal and emotional conflict.
[75] The mother described their relationship as one where they got along for the most part. They had disagreements about Mr. E.’s son and, in particular, his behaviour at home and at school.
[76] The police were called to their home twice.
[77] On May 17, 2015, Mr. E. called the police over a verbal argument with the mother related to their respective children. The mother’s evidence was that she said she was going to call the police, so he did instead. The police report notes that there was no “physical aspect to this incident … no charges are to be laid.” Both E. and C. were home at the time.
[78] On May 2, 2017, the police responded to a call made by Mr. E. The mother reported to police that she did not want Mr. E. to return home because he was verbally and mentally abusive. No criminal allegations were made. Mr. E. moved out the next day.
[79] Subsequent to their separation, they continued to see one another. The mother still considers herself to be in a relationship with him. She sees him almost exclusively when the children are with the father. Her goal is to resume living together with Mr. E. No date has been set for this to happen. The mother’s evidence is that at present they need to do a lot of work on their relationship.
[80] Mr. E. was not called to give evidence at the trial.
[81] I find that the mother minimized the conflict that existed in her home while she lived with Mr. E. She did not see it as concerning for the children. While she was candid about the events, she took a very narrow view about what constitutes abuse and had little appreciation on the possible detrimental effects that this conflict could have on the children.
[82] I agree with the observations of the Children’s Lawyers clinical investigator that the children need to be sheltered from exposure to domestic conflict between the mother and Mr. E.
[83] Despite minimizing what the children were exposed to while she and Mr. E. cohabited, she has not exposed them to further conflict since they separated. The mother is working on her marriage relationship in a manner that keeps and will keep the children away from conflict. I accept her evidence that she will not resume cohabitation until their relationship is much better.
The Children’s Attendance at School
[84] The children’s report cards were admitted in evidence. They disclosed that E. was absent or late as follows:
| Year | 2014-2015 | 2015-2016 | 2016-2017 | 2017-2018 | to November 12, 2018 |
|---|---|---|---|---|---|
| Grade | 5 | 6 | 7 | 8 | 9 |
| Absent | 15 days | 8 days | 22 days | 17 days | 2 days |
| Late | 5 days | 9 days | 10 days | 10 days | 0 |
[85] The report cards also disclose that C. was absent or late:
| Year | 2015-2016 | 2016-2017 | 2017-2018 | to January 2019 |
|---|---|---|---|---|
| Grade | 2 | 3 | 4 | 5 |
| Absent | 6 days | 14.5 days | 12.5 days | 7.5 days |
| Late | 11 days | 38 days | 12 days | 1 day |
[86] The father filed in evidence a calendar he prepared that shows when the children were in the care of either parent and corresponded that to when the child was absent or late. The mother disputed the accuracy of the absent and late information but only in general terms. I accept the accuracy of the data contained in the calendar as it is based on school records. From the calendar it appears that the majority of the children’s absences and lates occurred while they were with the mother.
[87] Within the report cards put in evidence, I was not directed to any comment that the absences or lates were unusual in the circumstances. As well, I was not directed to any comment that the absences and lates that were recorded had an effect, whether adverse or otherwise, upon the children’s educational progress or behaviour.
[88] The Children’s Lawyers clinician also noted the frequent absences and lates. Her investigation revealed that the children “appeared to be doing well academically and there are no concerns about their behaviours at school.” I accept the mother’s evidence that the children would be absent from school for reasons that were valid to her. They did not stay at home for capricious or unnecessary reasons.
[89] Regarding C.’s late attendance at school, the mother said that this was his fault. She sent him to school on time but he may have dawdled along the way. At C.’s age, the mother could have addressed this more responsibly than she did, particularly when he was in grade 3. I also take into account that there was a significant reduction in late attendances when he was in grade 4.
Extracurricular Activities
[90] The father’s evidence is that the mother does not send the children to extracurricular activities, in particular C. to hockey. This, he says, sets a bad example because the child is letting down his team.
[91] The parties did arrange, a number of years ago, for C. to play hockey. The father helped with coaching. In the later years, the father registered C. for hockey but did so without consulting the mother. He relied upon past practice. In these later years, the mother did not always take C. to hockey. She let C. decide if he would go on a particular day. She acted in manner that she said respected the child’s wishes at the time.
Heather Chandler: E.’s Counsellor
[92] As set out earlier in these reasons, the child has been seeing Heather Chandler as a counsellor.
[93] Ms. Chandler is a registered social worker, who was engaged in November 2017 by the father to provide counselling to E. The father described E. to Ms. Chandler as a bright and active girl, who appeared to be suffering from symptoms of anxiety, depression and obsessive compulsive disorder. He also reported that the child engaged in self-harming behaviour. The father told Ms. Chandler that he wanted the child to have someone to speak to.
[94] After an initial intake meeting on November 28, 2017 with the father and child, meetings with Ms. Chandler have taken place every second week.
[95] Ms. Chandler observed that she developed a good relationship with E. Relationship building was the focus of their initial sessions.
[96] In the individual session of November 28, 2018, E. made comments to Ms. Chandler about the mother killing herself: once, the previous summer and a second time approximately three weeks earlier. This disclosure caused Ms. Chandler, at E.’s request, to report these comments to the Children's Aid Society. That day, Ms. Chandler spoke with Jennifer Guthrie from the Society to advise of E.’s comments. The Society’s investigation will be addressed later in these reasons.
[97] The mother and E. met with Ms. Chandler together once on June 20, 2018. From Ms. Chandler’s “summary of involvement” document, the mother and child spoke about “communicating their perspectives relating to how they interact.” The session ended with both agreeing to “try using an alternative form of communication about conflict.” The counsellor has attempted to help E. “identify coping strategies that she can implement when feeling low …”
[98] On April 3, 2019 – two days before Ms. Chandler was scheduled to testify – she met with E. During that conversation, they spoke about this court case. E. said that Ms. Chandler could discuss matters that the two of them talked about in confidence.
[99] Ms. Chandler asked her what she would like the outcome to be. In response, she said that “she would like her father to have sole custody.” Ms. Chandler also testified that E. “talked about knowing and feeling confident that her father will allow her leniency in terms of visiting mom. So she’s comfortable with dad having custody because she knows he will let her go to mom whenever she wants.”
[100] Though Ms. Chandler could not recall E.’s exact words, I accept the statements attributed to the child by Ms. Chandler made April 3, 2019, as meeting threshold reliability for the purpose of admitting them in evidence. The statements were made a short time before they were relayed in evidence. The child had a good rapport with the counsellor. The weight to be given to these comments, in the context of all the evidence, will be addressed later in these reasons.
[101] Ms. Chandler described certain aspects of E. as follows:
she has adaptive coping strategies, including leaning on her support system, which includes family and friends;
her mother, father and paternal grandmother provide support she relies upon;
her mother yelling at her causes her distress;
it is important to E. that she maintain a relationship with her mother;
E. would prefer to live with her father: statements to this effect were made by E. on three occasions: September 5, 2018 when she said that sometimes she wished she could stay with her dad; April 3, 2019; and one time months prior.
she wants to be able to choose when she spends time with her mother;
she is angry at her mother for telling school officials about her sexual orientation;
she has expressed frustration with father regarding her self-harming behaviour; and
on January 9, 2019, E. told Ms. Chandler that she “feels better about her mom’s house … they had a talk about it and everything is better.”
The CAS Investigation
[102] The Society investigated the referral made by Ms. Chandler. The investigation centered on risk of emotional harm / exposure to conflict and the mother’s limited caregiving skills. Neither concern was verified by the Society following its investigation.
[103] The father wanted the court to admit into evidence certain statements made by E. to the worker. Counsel for the father did not provide an inventory of the statements he sought to have admitted and the basis for admitting them: see Family and Children’s Services of St. Thomas of Elgin v. A.C. et al., 2013 ONCJ 452.
[104] Nonetheless, I am satisfied that the statements made by the child to the Society worker, Jessica Roswell, do meet the test for threshold reliability. The mother concedes necessity. The child was able to relate information to this independent social worker witness, who recorded the information provided by the child. While the statements may not in all instances be verbatim, I find they accurately capture the gist of the child’s statements.
[105] I accept the mother’s evidence that she did not threaten to commit suicide while in the presence of E. When speaking with the Society worker, E. said that the concern happened approximately four weeks earlier, after the mother had a bad day.
[106] E. related to the worker that some problems between her mother and her related to her room not being clean and her mother yelling at her. At the mother’s house, she has to get up much earlier to go to school than she does from the father’s home.
[107] E. reported to the investigating worker that the father has said she can choose where she lives.
[108] In E.’s interview with the worker on December 14, 2018, she told the worker she wanted to stay at her father’s house until further notice.
[109] On January 21, 2019, E. told the worker that things were fine at mother’s house, everything was normal. The mother and E. had a good conversation and she had no concerns to report.
[110] The mother told the worker that she would not contribute to the child’s mental health challenges by making such a statement to her. The investigating worker saw no evidence to suggest that the mother was struggling with her mental health stability.
[111] By early January 2019, E. had returned to her mother’s home in accordance with the existing schedule.
[112] The worker observed no concerns regarding C.’s interaction with his parents.
The Children’s Lawyer’s Investigation and Report
[113] This investigation was carried out by Pamela Glazier-Fiala. Her report is dated March 29, 2018. Her qualifications and experience to provide a s. 112 report were not challenged by either party. I am satisfied that she completed her investigation and report in a comprehensive and balanced manner.
[114] The clinical investigator saw the children at the father’s home and at the mother’s home. At both homes, the children appeared to the clinical investigator as relaxed and comfortable: “in their father’s presence” and “in their mother’s care.”
[115] With respect to E.’s views at the time, she did not want any changes to the current access schedule, although she would have preferred to stay with her mother when the father was out of town.
[116] C. liked the access schedule, except that he would prefer an earlier time for the Sunday exchange.
[117] The children reported positive relationships with both parents and appeared bonded to both of them. They described family-focussed activities in both homes. Both parents allow the children to be exposed to extended family members, whom they describe as being positive supports in their lives.
Legal Considerations
Material Change in Circumstances
[118] The custody and access provisions of Templeton J.’s order were made under the Children's Law Reform Act, R.S.O. 1990, c. C.12.
[119] The legislative authority to change a custody and access order under the Children's Law Reform Act is found at s. 29, which is formulated as follows:
A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.
[120] This section provides that, before a court may consider the merits of an application to change a custody and access order, it must first find that there has been a material change in circumstances since the previous order was made.
[121] In Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 13, the court held that a material change in circumstances is one which: (1) amounts to a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) materially affects the child; and (3) was either not foreseen or could not have been reasonably contemplated by the judge making the original order.
[122] Though Gordon v. Goertz dealt with s. 17 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), the test enunciated has been held to apply to s. 29 of the Children's Law Reform Act: see Allen v. Allen (1998), 38 R.F.L. (4th) 96 (Ont. C.J., G.D.), at para. 26.
Best Interests
[123] If a material change in circumstances is established, then the court is to embark on a fresh inquiry into the best interests of the children. In doing so the court must have regard to subsections 24(1-4) of the Children’s Law Reform Act. In this inquiry both parents bear the evidentiary burden of demonstrating where the best interests of the children lie: Deslaurier v. Russell, 2016 ONSC 5285, at para. 25 and Roloson v. Clyde, 2017 ONSC 3042, at para. 52.
[124] Best interests are to be considered from the child’s perspective.
[125] At Roloson supra, para. 54, Chappel J. stated the following with respect to best interests:
54 The best interests of the child must be ascertained from the lens of the child rather than from the parents' perspective; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure that the interests of the child are safeguarded and promoted (Young, at paras. 74 and 202; Gordon, at pp. 50, 54, 68). As the court stated in K. (K.) v. L. (G.), [1985] 1 S.C.R. 87 (S.C.C.), at para. 101, the ultimate aim of the courts in resolving custody and access disputes is "to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as a mature adult."
[126] And regarding maximum contact as follows, at para. 55:
55 The CLRA does not specifically highlight the desirability of maximizing contact between the child and each parent as a mandatory consideration in carrying out the best interests analysis in custody and access proceedings. The Act differs in this regard from the Divorce Act, which directs the court in both originating and variation proceedings to give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child (Divorce Act, sections 16(10) and 17(9)). Although there is no direct reference to this factor in the CLRA, the maximum contact principle has nonetheless been held to apply in the determination of custody and access issues under the CLRA (Bjornson v. Creighton (2002), 62 O.R. (3d) 236 (Ont. C.A.). W. (A.C.) v. P. (T.M.), 2014 ONSC 6275 (Ont. Div. Ct.)). It is generally accepted that the best interests of the child are usually fostered by ensuring that the child has a loving relationship with both parents (Pastway v. Pastway (1999), 49 R.F.L. (4th) 375 (Ont. Gen. Div.); Ferreira v. Ferreira, 2015 ONSC 3602 (Ont. S.C.J.), at para. 31; H. (T.E.) v. R. (G.J.), 2016 ONCJ 156 (Ont. C.J.)). If one parent does not facilitate a child's relationship with the other parent, or improperly undermines that relationship, this will be an important consideration in determining their ability to meet the child's needs (Leggatt v. Leggatt, 2015 ONSC 4502 (Ont. S.C.J.); H. (T.E.), at para. 442). However, the maximum contact principle is not an unbridled objective. As the Supreme Court of Canada noted in Young at para. 40 and Gordon, at p. 49, if other factors show that maximum contact would not in fact be in the child's best interests, the court can and should restrict contact.
[127] Justice Chappel also addressed how the wishes of a child are to be considered in the context of a best interest analysis, at para. 56, as follows:
56 The wishes of the child are also relevant to the best interests analysis, particularly in cases involving older children. However, as the Ontario Court of Appeal recently emphasized in L. (N.) v. M. (R.R.), 2016 ONCA 915 (Ont. C.A.) at para. 36, "the wishes of the child and the best interests of the child are not necessarily synonymous." The weight that should be attached to a child's expressed wishes will depend on numerous factors, including the age, intelligence and maturity of the child, their overall developmental status and capacity to form and articulate preferences, how clear the child's wishes are and the consistency of those wishes over time (Decaen v. Decaen, 2013 ONCA 218 (Ont. C.A.); Stefureak v. Chambers, [2004] O.J. No. 4253 (Ont. S.C.J.); Heuer v. Heuer, 2016 ONCJ 201 (Ont. C.J.)). In addition, in determining the weight, if any, which should be accorded to the child's expressed wishes, the court should consider those wishes in the context of all of the circumstances of the case and carefully assess if there are any concerns as to whether the expressed wishes are an accurate reflection of the child's true feelings. The court should give little weight to a child's expressed wishes if the evidence indicates that those wishes have been tainted by negative influence, inducements or alienation exerted by the other parent or any other individual (L. (A.G.) v. D. (K.B.) (2009), 93 O.R. (3d) 409 (Ont. S.C.J.) at paras. 143-149; O. (C.) v. O. (D.), 2010 ONSC 6328 (Ont. S.C.J.) at para. 16; Decaen, at paras. 42, 44-45; L. (N.) v. M. (R.R.), at paras. 33, 36).
Legal Considerations Applied
Material Change in Circumstances
[128] I find that there have been material changes in circumstances that affect or are likely to affect the best interests of the children:
The wishes of E. have changed since the making of the order. She has recently expressed a wish to spend more time with the father and to have the option of deciding when she will spend time with the mother.
The willingness of the parties to engage in shared decision-making in addressing E.’s mental health concerns has not been as evident as would be expected in a shared decision-making regime of parenting.
The mother exposed the children to domestic conflict in her relationship with Mr. E. that had the potential of adversely affecting the children.
Some of the father’s actions, while this litigation has been ongoing, have had the effect of diminishing or undermining E.’s relationship with her mother. I do not accept the father’s evidence that during this litigation he has and will continue, if granted custody, to foster a positive relationship between E. and the mother.
Individually, the incidents to be described may not rise to the level of constituting a material change in circumstances but cumulatively they demonstrate a pattern on the part of the father:
He relayed the mother’s conversation with the high school vice principal to E. in a manner and with the effect described earlier in these reasons. It caused a serious rift between mother and daughter.
The father excluded the mother in shopping for E.’s grade 8 graduation dress.
He excluded the mother in arranging for E. seeing the counsellor, Heather Chandler.
He told E. that she could choose where to live at a time she was upset with her mother.
[129] I am satisfied that these factors together affect and are likely to continue to affect the best interests of the children.
Best Interests
Love, Affection and Emotional Ties
[130] Both parents undoubtedly love their children. As parents, they are concerned and caring.
[131] Both the parents and children have and continue to have strong emotional ties to one another.
[132] At the time the Children’s Lawyer clinical investigator prepared her report (March 29, 2018), she reported that according to the children, they had positive relationships with both parents. The clinical investigator concluded that both children appeared bonded to both parents. The other evidence presented in this case is consistent with this still being the case, subject to the evolving relationship between the mother and E.
[133] The evidence also discloses that E. and C. have positive relationships with their extended families on both sides. The paternal grandmother, in particular, has been a person for whom E. has much affection.
Views and Preferences
[134] C. expressed to the clinical investigator that he liked the current arrangement but would prefer going home to his mother’s on Sunday at 7 p.m. rather than 8 p.m. but now that he was older, it did not matter as much.
[135] There was no other evidence presented in this case that C.’s views and preferences have changed.
[136] E.’s views and preferences have changed during the course of this case. It is clear that until the high school registration event occurred, E. did not want any changes to the schedule except that she would prefer to stay with the mother when the father was out of town.
[137] When E. learned from the father what the mother told the vice principal about her, she wanted to stay with the father. She voted with her feet. She stayed with him for a number of weeks.
[138] E. told Ms. Chandler that she wants the father to have sole custody and to be able to visit with her mother whenever she wants. I accept that this is the gist of what the child said on three occasions. What is not explained in the evidence is what E. understood or meant to express when she is said to have used the words “sole custody.” The evidence does not shed light on whether E. meant that her father is to have decision making authority on his own or that her main home would be with the father. I also take into account that Ms. Chandler’s evidence was that she appeared in court with E.’s permission. She candidly stated that she was there to be E.’s advocate. Her doing so undermines the weight that should be accorded to her evidence as it suggests that she had an agenda to fulfill, rather than to simply inform the court about facts that she observed or heard. She was understandably aligned with the child. She did not appear to take into consideration all of the influences and circumstances faced by E. and how they might influence her wishes.
[139] In December 2018, E. told the Children’s Aid Society investigator that she wanted to stay at her father’s house until further notice.
[140] In January 2019, she told the worker that things were fine with her mother and that everything was normal. Since January 2019, I understand the evidence to be that the children have been in the care of both parents on the 8-6 schedule.
[141] An assessment of E.’s views and preferences require a consideration of her age and her maturity. It also requires a consideration of the independence and consistency of these views and preferences.
[142] E. is now 15 years old. This is an age at which her views should be given much weight. She is a teenager who is addressing issues related to her anxiety. She appears, from the evidence presented, to be an intelligent and articulate person. The state of her views appear to be related, and not surprisingly so, to her state of upset or closeness with her mother. Her views and preferences are also subject to the encouragement she receives from the father.
[143] E.’s views are variable. Though her views are variable, she wants them to be heard and respected. It appears to me that she wants to have a positive relationship with both parents and to spend time with them as she chooses.
Length of Time in a Stable Home Environment
[144] But for the period the children were exposed to domestic conflict between the mother and Mr. E., the children have lived in a stable home environment in both parents’ homes.
[145] The father’s relationship with his partner and their blended family appears to have been accepted as a positive one by both children.
Ability and Willingness to Provide Guidance and Education, the Necessaries of Life and Special Needs
[146] Both parents are capable of providing the children guidance and education. They have done so to a great extent.
[147] The mother has been deficient in this by:
Not responsibly ensuring that C. attended school on time. Objectively, his lates and her reasons for this suggest she did not take it seriously. It is most fortunate for the children that their schooling and behaviour did not appear to be affected adversely.
Reacting in anger and inappropriately to E.’s desire in the spring of 2018 to stay with the father once she learned what was told to the vice principal. It is to the mother’s credit that this lapse in parental judgment was acknowledged by her and that she has been able to resume a positive parent-child relationship.
Not appreciating the potential risk to the children from exposure to domestic conflict.
[148] The father has been deficient in this by:
Refusing to communicate with the mother except as absolutely necessary and then by text or email. I agree with the observation of the clinical investigator that E. “needs her parents to model how to handle conflict in a healthy manner.”
His actions as described in these reasons that do not always appear to be respectful of E.’s relationship with her mother.
Acceding to E.’s wishes when they suit his purpose and not when they do not.
[149] Both parents are able to provide the necessaries of life for the children.
[150] Both parents are able to address and meet E.’s special needs. A challenge in this case is that while this court case has been ongoing they do not always agree on how to do so. The clinical investigator identified that while for the most part the parents have been able to make some mutual decisions about the children, one area where they differed was in their approaches related to E.’s mental health issues. Despite these differences, both parents accessed counselling services for E. when needed. Both parents participated in group counselling to better understand E.’s anxiety.
The Plan Proposed by Both
[151] The mother’s plan is essentially to maintain the status quo with respect to time and care and decision making, subject to a few changes. She will have the children attend the same schools where they now attend, and reside in the same neighbourhood and home.
[152] The father wants to significantly change the status quo by having both children reside with him and his partner and her children. He wants to be responsible for all decision-making. His plan would see C. spend considerably less time in the care of the mother and that E. be allowed to decide when she would spend time with the mother. His plan would see the children move to a new neighbourhood.
Permanence and Stability of the Family Unit
[153] The father began living with his partner and her children while the trial was ongoing. While this family unit is new, it comes together after a lengthy relationship. I accept that it is a good relationship with no reason to conclude it will not be a stable one.
Ability to Act as a Parent: Familial Relationships and Domestic Conflicts
[154] These considerations have been addressed in these reasons.
Discussion
[155] I find that it is in the best interests of the children that:
The parties continue joint decision-making and custody of the children.
C. be in the care of the mother and father on the 8-6 schedule that is currently in place.
C.’s return time to the mother on Sundays shall remain at 8 p.m.
E. shall be in the care of the mother and father on the 8-6 schedule that is currently in place subject to her wishes as to the time she remains in the care of either parent.
The paternal grandparents or either of them may transport E. to high school from the mother’s home.
If the father is away from London for employment for seven or more consecutive days, then:
(i) C. shall be in the care of the mother during the weekdays and in the care of the paternal grandparents, or in the father’s home with K.A., on the weekends that coincide with the father’s residency schedule;
(ii) E. will be in the care of the mother during the weekdays and in the care of the paternal grandparents, or in the father’s home with K.A., on the weekends that coincide with the father’s residency schedule subject to E.’s wishes as to where she wishes to reside.
The father may choose one extracurricular activity for the child, C., each year that requires attendance during the time the child is in the care of the mother. The father shall be allowed to take C. to this activity if the mother is not able to do so. She is to give the father adequate notice if she is unable to do so.
The mother shall not allow the children to be exposed to domestic conflict.
[156] By maintaining joint custody of the children with the parties, the mother’s relationship with the children, and especially E., will not be marginalized: see Rigillo v. Rigillo, 2019 ONCA 548, at para. 12.
[157] For the first five years after the order was made, the parents were able to co-parent the children. Their communication was polite and constructive. They were able to accommodate changes needed in the best interests of the children. This joint custody arrangement followed a period of difficult litigation. The parties have demonstrated that they can work together in the best interests of the children following the stress of contested litigation.
[158] The conflict which precipitated this case and current acrimony between the parties had to do with the 2015 Thanksgiving incident regarding who would look after the children while the father was away. I agree with Henderson J. that paragraph 3 of the order that purported, from the father’s perspective to define his right to direct the place of the children’s residence while he was away, is “vague on its face.” Nonetheless, the mother acquiesced since that time.
[159] Once this litigation started, the father insisted on reverting from what had been a working schedule arrived at to meet the evolving needs of the children, i.e. in their best interests, with strict compliance with the order.
[160] The parents do not have an inability to communicate with each other. The father now chooses to communicate as little as possible: see Kaplanis v. Kaplanis, [2005] O.J. No. 275 (Ont. C.A.).
[161] The parents have demonstrated an ability to communicate for the purpose of addressing gaps in unexpected situations that arose.
[162] While the mother may not support C. attending all of his hockey games, the father does. I agree with the father and the clinical investigator that a commitment made to his team should be a commitment kept. The father can ensure that this is the case.
[163] The parties were not always in agreement with E.’s mental health treatment. That has resolved: she attends counselling and is under doctors’ care for any medications she may need.
[164] As stated above, a joint custody order in the context of this family’s experience will prevent the father from diminishing or marginalizing the mother’s relationship with the children, particularly E. I have found that some of his actions during this litigation have attempted to do so.
[165] Both parents have strengths from which the children should benefit. These strengths have allowed the children to have a positive relationship with both parents. E. may not want to spend as much time as she has in the care of her mother but, even though there have been significant disruptions this past year, they still have a positive mother and teenage daughter relationship.
[166] The 8-6 schedule need not change as it has been in place for 9 years. The children have benefited from this maximum contact with both parents. It remains in their best interests for this contact to continue.
[167] The mother has not presented evidence sufficient to require a change in the 8 p.m. return time on Sunday. C. is now 11 years old. There is no evidence that this return time has prevented C. from being ready for school the next morning.
[168] The discretion given to E. respects her desire to make choices about where she stays. It recognizes that her wishes may change.
[169] For E., the 8-6 schedule provides certainty and consistent time with her mother and C. with whom she is close if she wants it, and at the same time respects her maturing wishes should she choose otherwise.
[170] E.’s circumstances will be made easier if her paternal grandparents are able to help take her to school from the mother’s home. The mother’s refusal to allow this was not child-centered.
[171] The mother and father share primary responsibility for caring for the children. When he is away from home for extended periods due to his employment, the children should be cared for by the remaining primary parent, that is, the mother. This is, for the reasons stated above, subject to E.’s discretion for herself.
Child Support
[172] The existing child support order is based upon a set-off calculation: the table amount payable by the applicant less the table amount payable by the respondent, having regard to their respective incomes and the shared parenting arrangement.
[173] As the shared parenting plan provided for in these reasons substantially continues that contained in the existing order, the parties ask that child support again be calculated on the set-off basis.
[174] The father’s 2018 total income for child support purposes is $92,769. This is the amount counsel ask be used to calculate his ongoing child support obligation. I will accede to this request as the father remains employed with the same employer and expects his 2019 income to be similar to what it was last year.
[175] The mother requests that her income for ongoing child support purposes be $10,660.60. This is the income she received in 2018. The components of this income received were from employment ($1,479.60) and social assistance payments ($9,180).
[176] The father asks that the mother’s income for the purpose of calculating ongoing child support be $21,000. This is the income that was imputed to the mother in the existing order. He argues that the mother has not provided sufficient evidence to allow the court to change the income previously attributed to her.
[177] The income imputed to the mother in the existing order was made on consent. No evidence was presented that explains why income was imputed at that time. The amount imputed apparently approximated what a person could earn working fulltime for minimum wage.
[178] The mother’s evidence is that she is not able to work because of her medical problems: (a) an unsuccessful surgery on her right arm ulnar for nerve problems; and (b) endometriosis, which causes her pain and exhaustion. She has made application for ODSP. The respondent did not provide any medical evidence that correlated her medical conditions with her employability except for a medical form filed in support of her ODSP application.
[179] When income is imputed in an original order, the payor has the onus of showing why it is not appropriate to continue to impute income: Trang v. Trang, 2013 ONSC 1980.
[180] If a support payor wants to rely upon medical reasons for not being able to work, they need to provide cogent medical evidence in the form of a detailed medical opinion: Cook v. Burton, [2005] O.J. No. 190 (Ont. S.C.J.) and Stoangi v. Johnson, [2006] O.J. No. 2902 (Ont. S.C.J.).
[181] The mother did not file the type of evidence that is expected when a medical condition is said to be the basis for an inability to work. That her ODSP application is being considered is not sufficient evidence to allow her request to have her income for child support be reduced as requested. However, it would be a material change if the mother is granted ODSP benefits.
[182] On income of $92,796, the table amount for two children is $1,384. On income of $21,000, it is $324. The set-off amount is $1,060. This shall be the table amount of child support the applicant is to pay to the mother as monthly table child support beginning January 1, 2019. He is to receive credit for all table child support payments he has made since that date.
[183] The father’s claim for retroactive child support made in respect of special expenses incurred by him is dismissed. I do so on the basis of Mr. Hassan’s request. The father, he said, is looking for a fresh start.
Order
[184] An order will go changing the order of Templeton J. dated September 20, 2010 as follows:
E. shall be in the care of the mother and father on the 8-6 schedule that is currently in place subject to her wishes as to the time she remains in the care of either parent.
The paternal grandparents or either of them may transport E. to high school from the mother’s home.
If the father is away from London for employment for seven or more consecutive days, then:
(i) C. shall be in the care of the mother during the weekdays and in the care of the paternal grandparents, or in the father’s home with K.A., on the weekends that coincide with the father’s residency schedule;
(ii) E. will be in the care of the mother during the weekdays and in the care of the paternal grandparents, or in the father’s home with K.A., on the weekends that coincide with the father’s residency schedule subject to E.’s wishes as to where she wishes to reside.
The father may choose one extracurricular activity for the child, C., each year that requires attendance during the time the child is in the care of the mother. The father shall be allowed to take C. to this activity if the mother is not able to do so. She is to give the father adequate notice if she is unable to do so.
The mother shall not allow the children to be exposed to adult domestic conflict.
Commencing on the first day of January 2019 and on the first day of each month thereafter, the father shall pay to the mother for the support of the children, E.H., born […] 2004 and C.H., born […] 2008, the sum of $1,060 based upon the following:
(i) the father’s 2018 income of $92,796;
(ii) the mother’s imputed income of $21,000;
(iii) the children share their residency between the homes of the parties;
(iv) the amount of child support reflects the set-off amount between the obligations of the parties to one another based on their respective incomes and the shared parenting circumstances; and
(v) The respondent is not in receipt of ODSP benefits.
[185] If the parties are unable to agree on costs, written submissions are to be provided by the respondent within 15 days of the release of these reasons, and by the applicant within 30 days of the release of these reasons. The submissions shall be no more than 5 pages, 12-point font and double-spaced, together with a bill of costs and any offers to settle.
Justice Barry Tobin
Released: August 7, 2019