COURT FILE NO.: FC-17-1138 DATE: 2020/07/21 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Sean Smith Applicant – and – Brittany Reynolds Respondent

Applicant, Self-Represented Laura Pilon, for the Respondent

HEARD: October 3, 23-25, 28, 29, 31, 2019 Further Submissions – May 11, 2020 Endorsement – May 14, 2020

REASONS FOR JUDGMENT

BLISHEN J.

Introduction

[1] The focus of this trial was on parenting time, decision making and child support for the parties now three-year-old son, Mason. Ms. Reynolds also seeks a restraining order against Mr. Smith pursuant to s. 46 of the Family Law Act, R.S.O. 1990, c.F.3, as am.

[2] The parties had a short-term relationship and have not resided together since before Mason’s birth, on May 9, 2017.

[3] Ms. Reynolds and Mason reside with her father in the Barrhaven area of Ottawa. Ms. Reynolds is a registered nurse working shifts at the Ottawa Dialysis Clinic and the Ottawa Hospital, General Campus.

[4] Mr. Smith resides in Cobden, Ontario, approximately 150 km from Ottawa, with his common-law partner Lisa Staniowski. Mr. Smith works day and night shifts as an OPP officer. He is not currently working as he has been suspended with pay since May 19, 2017, pending a Police Services Board hearing initiated as a result of allegations by Ms. Reynolds of sexual assault and harassment.

[5] Mason has resided primarily with his mother in Ottawa since his birth. Mr. Smith currently has parenting time, as per a March 6, 2019 court order every Wednesday morning to Thursday at 4:00 p.m. on alternate weekends on Saturday 8:30 a.m. to Sunday at 6:15 p.m. and on the alternate Saturdays from 9:30 a.m. to 6:00 p.m. Approximately 31 % of parenting time for the past year has been with Mr. Smith.

[6] Communication regarding Mason, previously done by text and email, is now done using Our Family Wizard, as per the March 6, 2019 court order. Decisions have been made regarding Mason’s health, daycare and extracurricular activities with considerable difficulty.

[7] Mason is a happy, loving, affectionate, three-year-old who is attached to both of his parents. Both Brittany Reynolds and Sean Smith are intelligent, committed, capable and loving parents who have completely different parenting styles. Mr. Smith is detailed orientated, meticulous and vigilant. He wishes to be involved and consulted on most aspects of Mason’s day to day life. Ms. Reynolds has a more relaxed approach to parenting and feels undermined by Mr. Smith’s frequent and lengthy inquires about Mason. She has always been and continues to be intimidated by Mr. Smith.

[8] Both parties argue at trial that an arrangement for joint decision -making would not be in Mason’s best interests and both request orders for sole custody and primary residence with generous access to the other parent.

[9] If he is obliged to pay child support, Mr. Smith requests a reduction in the Child Support Guidelines, O. Reg. 391/97 as am (CSG), amount payable, based on undue hardship, pursuant to s. 10 of the CSG. He argues: he is currently paying child support for his two daughters from a previous relationship; has a considerable debt owing to his parents and has a lower standard of living than Ms. Reynolds.

[10] Ms. Reynolds argues she was previously harassed and assaulted by Mr. Smith to the extent that criminal charges were laid and he was suspended from his employment as an OPP Officer. The criminal charges were subsequently stayed due to delay based on the Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27. There has yet to be a hearing by the Police Services Board. Ms. Reynolds argues she continues to be intimidated and fearful of Mr. Smith and therefore requests a restraining order for her safety.

Trial

[11] The trial took place over nine days ending on October 31, 2019. In addition to himself, Mr. Smith called five witnesses: his former and current partner, his father, and two friends. He also filed three large volumes of documents consisting mostly of communications between himself and Ms. Reynolds or her counsel between January 2017 and August 2018.

[12] Ms. Reynolds testified and called three other witnesses: her mother, a friend and co-worker and her counsellor. She filed numerous documents.

[13] I found all of the witnesses including Mr. Smith and Ms. Reynolds to be credible. All were clear, straightforward and unshaken during cross-examination. There is no real dispute with respect to the background facts of this case, although Mr. Smith and Ms. Reynolds have different perspectives on the events and clearly on what plan is in Mason’s best interests.

[14] Prior to releasing my decision, the COVID-19 global pandemic struck, regular court operations were suspended, as set out in a Notice to the Profession from the Chief Justice of the Superior Court of Justice dated March 15, 2020. This caused inevitable delays in all aspects of court operations, including the drafting and finalizing of judgments. In addition, the circumstances of many families and parents changed. Therefore, a memo was sent to Mr. Smith and counsel for Ms. Reynolds on April 20, 2020 asking whether, given changes resulting from the pandemic, they had worked towards a cooperative resolution in Mason’s best interests. On May 4, 2020, responses were received from Mr. Smith and counsel for Ms. Reynolds, Ms. Pilon, indicating a resolution of the decision making and parenting time for Mason was not possible. I invited the parties to provide me with written submissions as to whether further evidence should be presented by May 11, 2020. Mr. Smith requested leave for the parties to provide further evidence while Ms. Reynolds took the position that no new evidence should be presented. On May 14, 2020 I released a written endorsement indicating I would not reopen the trial. My endorsement is attached to this judgment.

Background and Facts

Current Circumstances

[15] As previously noted, Sean Smith is an OPP Officer based in Pembroke, Ontario. He works rotating day and night shifts but is currently suspended with pay pending a hearing by the Police Services Board. His total income as indicated on line 150 of his Income Tax Return for year 2018 was $104,244.00 which he confirms as his annual income to be used in the calculation for child support and special expenses. Mr. Smith owes a home in Cobden, Ontario and currently resides with his partner Lisa Staniowski. Ms. Staniowski works as a travel consultant for C.A.A. and earned $38,482 in 2018. She testified she contributes approximately $400 per month to the household.

[16] Mr. Smith has two daughters from his marriage to April Tracey: Emma, 13 and Kaitlin 12 years old. Due to his irregular work schedule, Mr. Smith usually has parenting time with the girls on his days off. They have a key to his house and at times will go to his house afterschool. Mr. Smith pays child support of $670 per month for the two girls based on a set-off formula plus 63 % of the s. 7 expenses, the most significant of which is competitive hockey.

[17] Brittany Reynolds received her Bachelor of Arts in Nursing from Queens University and has been a registered nurse since 2015. She is currently employed part-time at both the Ottawa Dialysis Clinic and The Ottawa Hospital, General Campus. She lives in the Barrhaven area of West Ottawa in a three-bedroom townhouse with her father and Mason. Ms. Reynolds annual income as reflected in her 2018 Notice of Assessment was $48,912. Her most recent financial statement of August 27, 2019 indicates a total annual income of $72,634.44. As previously noted, Mason has primarily resided with his mother since birth and now spends approximately 31 % of the time with his father.

Marriage to April Tracey

[18] As noted, Mr. Smith was previously married to April Tracey for six years. They separated in October 2011 and were divorced in April 2014. They have two daughters and signed a separation agreement three years post-separation in April 2014, providing for joint decision-making and shared parenting time. Ms. Tracey resides in Renfrew and has remarried.

[19] Ms. Tracey testified it took a few years to work out the parenting arrangements and there were disagreements along the way. The girls are now 13 and 12, have a key to Mr. Smith’s home and she and Mr. Smith have a flexible arrangement. Mr. Smith is also actively involved in the girls’ competitive hockey and will drive them to practices and attend games.

[20] Mr. Smith and Ms. Tracey get along well and consider each other friends. Their arrangement for the girls runs smoothly and they will spend time together with the children and their respective partners.

Course of Relationship

[21] Mr. Smith and Ms. Reynolds met online and began a relationship in March 2016. By the summer of 2016, Ms. Reynolds was spending about three to four nights a week with Mr. Smith at his home in Cobden. In September 2016, Ms. Reynolds told Mr. Smith she was pregnant and would be having a boy. They began looking at listings for possible properties in Mr. Smith’s area and discussed building a home near Mr. Smith’s friend, Marc Condron. In January 2017, Ms. Reynolds bought furniture for the home in Cobden. Supplies and furniture were purchased for Mason and a room was prepared for him. Mr. Smith attended most of the pre-natal appointments with Ms. Reynolds. Mr. Smith believed they were going to have a life and a child together.

[22] Ms. Reynolds described her relationship with Mr. Smith as an unhealthy emotional rollercoaster. Although she felt unsettled and unhappy, after she discovered she was pregnant, she tried to figure out how to make the relationship work. Ms. Reynolds acknowledged the work done to prepare for Mason and discussions about possibly buying a home in Arnprior half way between both workplaces. However, eventually, Ms. Reynolds realized that from her perspective, the relationship was not sustainable in the long-term. She testified that Mr. Smith would belittle her, call her names, and make hurtful remarks. On Christmas Day 2016, Mr. Smith became so angry that he said he wanted nothing to do with her or the baby.

[23] In his testimony, Mr. Smith’s friend, Marc Condron confirmed a Facebook exchange with Ms. Reynolds indicating he was aware of “all the shortcomings you are speaking of. The shortness, rude, mean, snapping at his kids, belittling. As I said, Sean has his own demons. I don’t think these issues are insurmountable.” Mr. Condron felt Ms. Reynolds should give Mr. Smith a chance and try to make a life together. However, despite her efforts, Ms. Reynolds was very unhappy, felt powerless and decided she could not continue the relationship as it was unhealthy for her and for the baby.

[24] On April 6, 2017, when Mr. Smith was at a hockey tournament in Toronto with his daughters, Ms. Reynolds went to Mr. Smith’s home, removed some of her belongings and things for the baby, took her dog and returned to her mother’s home. She notified Mr. Smith by text messages. Mr. Smith was clear he did not want another relationship with a child to be unsuccessful. He desperately wanted to reconcile and began a campaign of text messages, emails, telephone calls, Facebook messages, attending at Ms. Reynolds home and work place. When Ms. Reynolds blocked his Facebook messages, he began to use his daughters’ Facebook pages to send messages, which Ms. Reynolds had to block. On April 11 th and 12 th 2017, there were 13 missed telephone and video calls from Mr. Smith to Ms. Reynolds. On April 24, 2017, there were 28 emails sent over the day. Ms. Reynolds pleaded with Mr. Smith not to contact her, yet he continued. At one point, he went to her home uninvited and knocked on the window to get her attention. On another occasion, he appeared at the home at 10:00 p.m. and sent her texts indicating he was outside and had to speak with her.

[25] During this time, Ms. Reynolds was vulnerable, pregnant and scared. She was not sure what Mr. Smith was going to do. She told him on a number of occasions the relationship was over, don’t come to the home and stop communicating. Nevertheless, the emails, texts, and Facebook messages continued. Ms. Reynolds testified she felt bombarded, harassed and overwhelmed. She could not escape or get a break from his constant communication. She reached out to the employment assistance program at work and had contact with a lawyer. A letter was prepared and emailed to Mr. Smith. On May 3, 2017, Ms. Reynolds and her mother went to the Greenbank office of the Ottawa Police Services to make a report in case the situation escalated. The office was closed that day and no report was made.

Mason’s Birth

[26] On May 9, 2017, Mason was born.

[27] Ms. Reynolds notified Mr. Smith of the birth and invited him to come for a visit on May 11 th with his two daughters. At that time, Mr. Smith was still hopeful for a reconciliation despite the numerous communications by Ms. Reynolds, her request to “leave me alone” and the letter to Mr. Smith requesting no communication except with respect to the baby. After the visit, there were numerous emails back and forth regarding the baby’s name, a visiting schedule, and how Ms. Reynolds would get the remainder of her property from Mr. Smith’s residence. Although polite, the parties were seldom able to agree on anything without considerable time, effort and numerous communications.

[28] From the beginning, Mr. Smith made it clear he wanted to play an active role as Mason’s father and to be involved in all decisions. He proposed working towards having Mason on his days off as was the parenting arrangement for his two daughters. There were significant difficulties in coordinating times for visits given Mr. Smith’s confusing day and night shift work schedule, the parenting time with his daughters, their activity schedules and his extended family’s wish to see Mason. Mason was a breastfeeding infant and the fact the parties lived 115 km apart was an additional and significant challenge.

[29] Given her continued fear of Mr. Smith, the number and nature of the communications prior to Mason’s birth and an alleged sexual assault by Mr. Smith in April 2017, Ms. Reynolds made a complaint to the Ottawa Police. Mr. Smith was charged with sexual assault and criminal harassment. The police referred Ms. Reynolds to counsellor Sandra Pinhey who continued to see Ms. Reynolds over a two-year period until June 2019.

[30] Mr. Smith was arrested on May 19, 2017 and released on a recognizance of bail with conditions including that he not contact or communicate in any way with Ms. Reynolds, her parents or her friend Anita Murray except in the presence of or through counsel or pursuant to family court order. In addition, he was not to be within 100 meters of Ms. Reynolds or any place where she was located. He was also prohibited from coming to Ottawa except pursuant to a court order, for court appearances, to meet with counsel or travel to and from his children’s hockey related activities. The criminal charges were ultimately stayed on March 14, 2019 due to delay. Mr. Smith was suspended with pay in May 2017 and, is still awaiting a hearing before the Police Services Board. Mr. Smith was unable to provide any information as to the stage of the process, when the hearing might take place, why there was a lengthy delay or any other details. He focused on the fact he was not working, was at home and therefore available at all times to look after Mason. If reinstated, Mr. Smith acknowledged he would likely return to his previous day and night shift work schedule.

[31] In addition to the report to the police, Ms. Reynolds made a report to the Children’ Aid Society indicating her concerns regarding name calling, adult conflict and the impact on Mr. Smith’s two daughters, as well as his treatment of animals in the home. Family and Children’s Services of Renfrew County investigated and closed the file. In a letter to Mr. Smith dated July 5, 2017, written by assessment and investigation services worker Jacqulyn Armstrong, it was noted “your home is very appropriate, child friendly, and clean and that your animals appear in good health and well cared for. It was observed through our conversation that you place your children’s interests and needs as highest priorities, and I would like to commend you on your successful co-parenting with April.” Mr. Smith was advised to minimize any adult conflict that his children might observe due to the custody and access dispute with Ms. Reynolds. Ms. Reynolds also received a letter from the Children’s Aid Society of Ottawa who became involved due to her report of domestic violence, stating the society’s involvement was not necessary as “you reported the incidents occurred prior to Mason’s birth and you took measures to ensure your safety. Children witnessing conflict between adults, either verbal or physical, can have long-term, negative effects. It is the Society’s expectation that you will continue to ensure Mason is not exposed to any domestic violence.”

Court Involvement

[32] On May 30, 2017, Mr. Smith issued his Application requesting joint and shared custody of Mason and child support in an amount less than the Child Support Guidelines table amount. Ms. Reynolds filed an Answer and a case conference date was set for August 29, 2017. On a temporary without prejudice basis it was ordered that Mason’s primary residence was to remain with Ms. Reynolds and Mr. Smith was to have supervised access for two hours on Wednesday, with a supervised exchange by either of the paternal grandparents, and for two hours either Saturday or Sunday with the exchange to take place at the supervised exchange program in Ottawa. Child support of $500 per month was ordered commencing September 1, 2017. Ms. Reynolds was to communicate regarding Mason’s health and general welfare through her lawyer.

[33] On November 15, 2017, a second case conference was held before Justice Labrosse and a temporary order was made extending the weekend access to 4 hours and 15 minutes on Sunday afternoons and allowing for Christmas Day access. Child support was changed to $893 per month as of December 1, 2017 on a $101,827 annual income. At that time, Suzanne Cote was representing Ms. Reynolds. Mr. Smith represented himself. After that case conference, Ms. Reynolds retained new counsel, André Bluteau.

[34] Mr. Smith continued to have access as per the temporary order but brought a motion to increase access and make other changes to the existing schedule. On March 29, 2018, Justice Linhares de Sousa made a temporary order expanding Mr. Smith’s access to every Wednesday from 10 a.m. to 6:15 p.m. and every Sunday from 10 a.m. to 6:15 p.m. with the paternal grandparents or another third party on written notice to Ms. Reynolds to do the exchanges. The access was to be reviewed in six months and Mr. Smith was to get medical records directly from the nurse practitioner involved in Mason’s medical care. Daycare costs were to be shared.

[35] After the March 29, 2018, the temporary order, Mr. Smith tried to communicate with Ms. Reynolds through her counsel, André Bluteau. He sent numerous emails and other communications but became increasingly frustrated with the responses he was receiving. As per the March 29, 2018 court order, Mr. Smith suggested April Tracey for some of the exchanges and provided written notice for this. Nevertheless, Mr. Bluteau indicated she would not be acceptable, and access would be refused if Ms. Tracey was doing exchanges. In an email to Mr. Smith on August 8, 2018, Mr. Bluteau indicated, “no reasonable person would use his former wife as a go between.” Given that April Tracey was who Mr. Smith arranged to do the exchanges on July 22 nd and August 8 th , there was no access on those dates, despite the court order.

[36] On August 29 th , there was a death in Mr. Smith’s family. He notified Mr. Bluteau and requested another access date. Mr. Bluteau responded that the court order did not deal with makeup time, and further stated in an email dated August 29 th , “your request has nothing to do with the child’s interests. Death in the family does not prevent you to see your child.”

[37] On August 24, 2018, Mr. Smith filed a contempt motion returnable October 30, 2018.

[38] On October 2 nd , Mr. Bluteau notified Mr. Smith that Ms. Reynolds was going to work full-time and due to her new work schedule would not be able to transport Mason to the Arnprior exchange location. Ms. Reynolds had notified Mr. Bluteau two months earlier, in August 2018, that she was commencing work at the Ottawa Hospital General Campus and would have a five-week training schedule Monday-Friday for eight hours a day and Mr. Bluteau indicated that he would get an early motion date to vary the temporary order. However, it wasn’t until October 2018, that Mr. Bluteau wrote to Mr. Smith indicating, “arrangements will be made to allow you to take the child from 8:30-11:30 every Monday, Wednesday and Friday. When Ms. Reynolds is working an evening shift, access will have to be later.” He told Mr. Smith the exchange would now be at the daycare centre.

[39] Mr. Smith was not prepared to agree to a unilateral change in the access schedule without any discussion and was clear with Mr. Bluteau that the existing temporary order was to be complied with. On October 8 th , Mr. Bluteau sent Mr. Smith a short email indicating, “the last day for the current access schedule will be Sunday October 21, 2018. Ms. Reynolds starts her full-time training on October 22, 2018.” Mr. Smith indicated that he was physically unable to make the times provided by Ms. Reynolds given his recognizance of bail and sign in requirements. In addition, the schedule proposed would eliminate Mason’s contact with his sisters and extended family and in Mr. Smith’s view, would not be in Mason’s best interests. Mr. Smith proposed alternatives and invited Ms. Reynolds to do the same. No other proposals were made. Therefore, as of October 21, 2018, Mr. Smith had no visits with Mason.

[40] In the meantime, Mr. Bluteau on Ms. Reynolds’ behalf, filed a motion to change the temporary court order returnable November 1, 2018. Mr. Smith’s previously filed contempt motion was to be heard October 30, 2018, therefore, on that date, the contempt motion was adjourned to November 1, with an order that there be at least one visit as per the original court order. That did not take place.

[41] On November 1, 2018, Mr. Bluteau did not appear on the motion to change or the contempt motion indicating through an agent he was ill. Justice Beaudoin ordered the March 29, 2018 temporary order of Justice Linhares de Sousa be complied with and further indicated if Ms. Reynolds was not able to drive to the exchanges, she was to get a third party to do so. He ordered $500 in costs against Ms. Reynolds.

[42] On December 13, 2018, the contempt motion was argued before Justice MacEachern, who released her decision on December 24, 2018. She highlighted the fact that since October 21, 2018, Ms. Reynolds had failed to comply with access ordered on March 29, 2018 and in addition had failed to comply in the face of clear direction from the court on October 30 and November 1, 2018. Justice MacEachern indicated, “as has been stated repeatedly, orders are not suggestions. Orders are orders, with which one must comply.” It was found beyond a reasonable doubt that a unilateral change was imposed upon Mr. Smith and that Ms. Reynolds in correspondence through her counsel seemed to be of the view that she could simply impose new access terms regardless of the court order and of the fact that Mr. Smith strenuously objected. Ms. Reynolds was found in contempt and ordered to comply with the March 29, 2018 access order. In addition, some additional access was ordered for Mr. Smith. Ms. Reynolds was ordered to pay $2000 for the breaches to date which sum could be suspended if she complied with all court ordered access, pending a further court order or agreement. If Ms. Reynolds failed to comply with one incident of court ordered access the $2000 was payable to Mr. Smith in full forthwith. Justice MacEachern further ordered that a failure to comply with any further court ordered access would result in an additional amount of $200 for each additional missed access visit.

[43] Regarding Mr. Bluteau’s involvement in representing Ms. Reynolds, Justice MacEachern stated, “I found the nature and tone of Mr. Bluteau’s correspondence with Mr. Smith very concerning. Mr. Bluteau’s correspondence was dismissive of Mr. Smith’s objections and verged on being despotic in tone in advancing Ms. Reynolds incorrectly held view that she could simply impose a new access schedule and ignore the terms of the court order. I mention this as a caution against similar communications in the future.”

[44] Despite Justice MacEachern’s order, the parties were back before her on January 11, 2019. None of the court ordered access had been complied with. Mr. Bluteau appeared on Ms. Reynolds behalf, having indicated to Ms. Reynolds she did not need to be present. Mr. Bluteau told the court that, given Mr. Smith was prohibited from having communication with Ms. Reynolds, Ms. Reynolds could not be present. Justice MacEachern expressed concern that Ms. Reynolds was not present, ordered a transcript of the proceedings be prepared on an expedited basis and ordered Mr. Bluteau to provide it to Ms. Reynolds forthwith. Justice MacEachern stated she was hopeful that Ms. Reynolds review of the decision and the transcript would make the importance of complying with court ordered access clear to her. Mr. Smith was granted leave to amend his application to request sole custody of Mason and primary residence with generous access to Ms. Reynolds. In her Endorsement, Justice MacEachern stated: “If Ms. Reynolds fails to comply with this access, she risks further consequences and penalties from the court including the possibility of this court awarding Mr. Smith the relief he has requested to change the primary residence of the child, police enforcement, further financial payments, costs and ultimately a term of imprisonment.”

[45] The matter was to be returnable before Justice MacEachern after Ms. Reynold’s motion to change set for January 24, 2019. Mr. Smith had not had any access since Ms. Reynolds work schedule had changed on October 21, 2018.

[46] On January 24, 2019, Ms. Reynolds appeared self-represented and indicated she planned to retain new counsel. Prior to the motion date, Mr. Bluteau indicated to Mr. Smith, Ms. Reynolds would withdraw her motion to change and would comply with the court ordered access. There had been no formal withdrawal. Given Ms. Reynolds request for time to retain new counsel, the motion was adjourned. By the end of January 2019, Ms. Reynolds had retained new counsel, Laura Pilon.

[47] On February 28, 2019, Ms. Reynolds appeared with Ms. Pilon. By that time, Ms. Reynolds was complying with the temporary access order. She advised the court she regretted her failure to comply with previous orders and attributed this failure in large part to the involvement of her previous counsel, Mr. Bluteau. Ms. Reynolds’ agreed that overnight access for Mason would be appropriate. In crafting a revised temporary access schedule, Justice MacEachern considered a number of important factors including:

1. The terms of the March 29, 2018 order which included shared driving to and from the transfers;
2. The distance between the parties’ residences of approximately 115 km;
3. The criminal proceedings which were still outstanding and Mr. Smith’s recognizance which restricted his contact with Ms. Reynolds;
4. His requirement to sign in at Pembroke police station each morning at 8:45 and 9:15 a.m. but the fact that he was otherwise not working;
5. Ms. Reynolds varied work schedule with her normal days off on Sundays.
6. Ms. Reynolds view that overnights were appropriate;
7. The fact that as of May 1, 2019, Mason was to be participating in a 12-week soccer program in Stittsville on Saturdays, and
8. The matter was scheduled for trial in September 2019.

[48] On February 28, 2019, the parties were able to arrive at an agreement for temporary access with the exception of:

1. Whether a third party was required to participate in exchanges once the soccer program began; and
2. The location of the drop offs on alternative Sundays.

[49] Justice MacEachern made the following comments:

Given the past conflict between the parties, as well as the ongoing tensions in the interactions before me, I find that at this time, it is in the best interests of the child for the parties to avoid contact with each other during access exchanges. This is consistent with the previous access arrangements, as well as the parties’ new agreement to use the daycare as the transfer point for weekday access. This may change at some point in the future, or it may not. At this time, in these circumstances, contact between the parties at exchanges should be avoided.

[50] On March 6, 2019, Justice MacEachern made the following temporary access order which continues to date:

1. The interim access as provided for under paragraphs 1 and 2 the March 29, 2018 order is changed, as follows: a. During March and April of 2019: i. Mr. Smith’s access will continue to take place every Wednesday, but these visits will be extended to include overnights with the child being returned Thursday afternoon. Mr. Smith will be responsible for picking up the child from his daycare on Wednesday mornings, as soon as he is able to. Due to Mr. Smith’s sign in requirements in Pembroke, Mr. Smith anticipates that he will be able to pick up the child around 11 a.m. in the morning on Wednesdays. The child will then be with Mr. Smith overnight Wednesdays. Mr. Smith will return the child to his daycare on the Thursday afternoon by 4 p.m. ii. Mr. Smith will also have access, every Saturday from 10 a.m. to 6:15 p.m. (instead of Sundays for the same time period under the March 29, 2018 order). The pick-ups for this access will continue to take place in Arnprior at the same location as under the March 29, 2018 order. Mr. Smith will continue to use a third party for these pick-up exchanges. The drop-offs at the end of these visits will take place at the daycare in Ottawa, which operates on a 24/7 basis. Mr. Smith will be responsible for returning the child to the daycare. b. As of May 1, 2019, the Wednesday overnight to Thursday access will remain the same as set out above but the weekend access will change. Mr. Smith’s weekend access will change to be: i. On alternate weekends from Saturday at 8:30 a.m. to Sunday at 6:15 p.m. Mr. Smith will pick-up the child from the Stittsville location of the soccer program. This access will begin at the same time as the child’s soccer so it will allow Mr. Smith to participate in and attend the soccer activity. Mr. Smith will return the child to the Sunday evening transfer location at the Arnprior Mall. ii. On the other weekends, Mr. Smith will have access on Saturday, for the day, from 9:30 a.m. (after soccer) to 6 p.m. Mr. Smith will pick up the child at the soccer location and Mr. Smith will return the child at 6 p.m. to the child’s daycare in Ottawa. iii. If the child is no longer involved in soccer, the Saturday pick-up will continue to be at the same location as the soccer program until otherwise agreed between the parties in writing or court order. iv. Pending the final disposition of the criminal proceedings against Mr. Smith, Mr. Smith will continue to arrange for a third party to pick-up and drop-off the child for the Saturday and Sunday access exchanges that take place at the soccer location (or other location agreed upon by the parties or ordered by the court) and the Arnprior Mall. v. Upon the final determination of the criminal proceedings, subject to any ongoing restrictions prohibiting Mr. Smith from having contact with Ms. Reynolds, the parties shall avoid contact as much as possible at the Saturday pick-up and Sunday drop-off exchanges, through the use of a designated third party if they wish, but this is not required. If a designated third party is not used, the access exchange shall take place in a public place (being the soccer location and Arnprior Mall unless otherwise agreed or court order); the parties shall treat each other with respect and politeness; and any communications between the parties during such exchanges shall be limited only that which is required to do so. More fulsome communications with respect to the needs of the child shall take place through www.OurFamilyWizard.com as agreed between the parties.
2. The parties shall communicate regarding the child via www.OurFamilyWizard.com. The parties shall visit the website, and each enroll in the program for at least a one-year subscription not later than 10 calendar days from today. The parties shall thereafter conduct all communications regarding parenting matters using the websites features, unless otherwise done through counsel.
3. Neither party shall fail to renew the annual subscription to www.OurFamilyWizard.com without a signed agreement by both parties or a court order.
4. Ms. Reynolds shall pay Mr. Smith costs of her withdrawn motion to vary interim access and the January 24, 2019 court appearance fixed at $500, payable within 90 days.
5. The parties shall provide each other with a copy of their 2018 T-slips and, as soon as available, copies of their 2018 Income Tax Returns and Notices of Assessment.
6. Ms. Reynolds shall provide Mr. Smith with confirmation of her current salary and when it has changed since the March 29, 2018 order.
7. Ms. Reynolds shall, forthwith, provide Mr. Smith with her calculations and supporting documents for the after-tax costs of childcare she has paid since the March 29, 2018 order and Mr. Smith’s proportionate share. If Mr. Smith disagrees with the amount claimed, he will provide his own calculations and supporting documents within 30 days.
8. Ms. Reynolds will immediately confirm the status of her appeal of the December 24, 2018 order and provided Mr. Smith with confirmation of this status. If this appeal is not proceeding, the parties will, within 30 days, exchange calculations of the amounts owed under the December 24, 2018 order. This sum shall be payable in full at the same time as Mr. Smith’s contributions to the past childcare expenses.
9. Each party shall fully review Rule 13 of the Family Law Rules and ensure their ongoing compliance with this rule.
10. A combined trial management and settlement conference shall be scheduled by the Trial Coordinator to take place in May of 2019 for two hours.

[51] Ms. Reynolds testified that since this temporary order for access, she has been in complete compliance. In her affidavit dated February 20, 2019, filed at trial, Ms. Reynolds indicated she followed the guidance and advice of her former lawyer, Mr. Bluteau in suspending access in spite of the court order and in not attending scheduled court appearances. Ms. Reynolds also deposed that when she attempted to keep Mr. Smith informed about Mason through counsel, Mr. Bluteau did not provide the information. Ultimately, she fired Mr. Bluteau and retained Ms. Pilon. At trial, Ms. Reynolds testified she realizes now she had been wrong. She accepts responsibility but states she was confused, vulnerable, did not understand the situation clearly and acted on the advice of her counsel.

Circumstances since the last access order, March 6, 2019

[52] Mr. Smith continues to have parenting time with Mason as set out in the March 6, 2019 temporary order.

1. Daycare

[53] Mason attends daycare organized by Ms. Reynolds to fit her work schedule. From the outset, Mr. Smith objected to Mason attending daycare given he is currently suspended and therefore available. As previously noted, it is unclear when Mr. Smith’s hearing will be and what the resulting work schedule will be, if any. Mr. Smith had been picking up Mason at daycare on Wednesday mornings. However, he has now been refused access to the daycare center as he began audio recording given concerns as to how the daycare providers were handling potty training. Lisa Staniowski now does the pickup and drop offs at the daycare centre. In addition to concerns regarding potty training, Mr. Smith was also concerned regarding some bites Mason received from other children at the daycare centre. He repeated during his testimony his strong belief that if he is available as a parent, Mason should be with him and not at daycare.

[54] Ms. Reynolds testified she registered Mason for daycare at the Children’s Place on Carling Avenue in Ottawa, as soon as possible after he was born as she was returning to work in May 2018. She is very pleased with the daycare which is well-established and has been in operation for over 40 years. It is five minutes away from her work at the dialysis clinic and is a flexible centre providing 24 hr 7 day a week coverage. Ms. Reynolds was satisfied with the daycare’s handling of the bites and their approach to potty training, which was much like hers – relaxed and no pressure.

2. Medical Care

[55] Mr. Smith was also very concerned about Mason’s health and medical care. Mason had been followed by a nurse practitioner after birth, but Mr. Smith felt he should have a pediatrician. As of spring 2019, Mason’s doctor has been pediatrician, Dr. Stevens. Both Mr. Smith and Ms. Reynolds take him for appointments separately.

[56] Mr. Smith also felt Mason should be tested for allergies. There was a significant amount of communication regarding taking him to an allergist. Ultimately, Mr. Smith took Mason who was tested for a possible penicillin allergy. Mr. Smith was concerned that Ms. Reynolds did not check the Our Family Wizard communication right after the appointment, as the allergist recommended Mason be watched for a reaction to amoxicillin. Ms. Reynolds indicated Lisa Staniowski dropped Mason off and indicated there had been no reaction to the test. Ms. Reynolds was relieved and therefore, did not look at the Wizard communication until later. There was no reaction to the amoxicillin allergy test.

[57] Mr. Smith also wanted Mason to be referred to an ear, nose and throat specialist. Ms. Reynolds agreed, and Mason is now on a waiting list.

[58] At one point, Mason had a rash which was later identified as scabies. As directed by the doctor at CHEO, Ms. Reynolds obtained cream for the rash, applied it and Mason returned to daycare. Mr. Smith was very concerned and felt that Mason should not go back to daycare. Again, there was a significant amount of communication regarding this situation. Ultimately, Ms. Reynolds obtained a letter from CHEO for Mr. Smith indicating Mason had been able to return to daycare.

[59] Ms. Reynolds testified Mason is a happy, healthy, strong little boy. He does get colds and at times has phlegm in his throat. Overall, he is in excellent health. Ms. Reynolds is a registered nurse and testified she will assess any issues regarding Mason’s health and will deal with them, urgent or otherwise. She testified she can receive two to three communications from Mr. Smith per day at times regarding Mason’s health and other day to day issues. She often feels attacked and undermined. Although polite, the communication is very intense. Mr. Smith requires a very detailed, meticulous response. There is not a natural flow of information. Mr. Smith testified he does have concerns about Ms. Reynolds’ approach to Mason’s medical care and wants to be kept fully informed and take part in all decisions.

3. Access

[60] Ms. Reynolds testified Mason loves his father and thoroughly enjoys his visits. He is happy and doing well with the current schedule. He talks about his father, what he does when with his Dad and a lot about his two half sisters, Emma and Katlin, and Mr. Smith’s partner, Lisa.

[61] There is no dispute that Mr. Smith is a very active and involved parent. Ms. Reynolds supports the relationship and wants it to continue as being in Mason’s best interests. Similarly, Mr. Smith fully supports Ms. Reynolds’ relationship with Mason who he describes as a sweet boy with a great attitude. Although Mr. Smith considers Ms. Reynolds a good parent, he questions many of her decisions both on a day to day basis and longer term for example, regarding Mason’s health care and daycare as noted above.

[62] Ms. Reynolds is an active, involved parent who testified her day revolves around Mason. She has a set routine for him and involves him in lots of activities. He has been attending swimming lessons and as previously mentioned, soccer. Ms. Reynolds is committed to Mason learning French and wishes to register him in French immersion in a school near her residence which also has extended daycare. She describes Mason as a caring, loving, and sharing child. She wants him to have strong family connections with both Mr. Smith’s extended family and hers and to remain a content, happy and secure little boy, as he is now.

4. Issues

[63] The most significant outstanding issues are: communication between the parties; Mr. Smith’s lack of trust; and Ms. Reynolds’ feelings of fear, intimidation and being undermined by Mr. Smith. In addition, the reality that the parties live approximately an hour and a half drive from one another, and work shifts creates challenges in scheduling for a 3-year-old which will only become more significant when Mason begins school in September 2021. Both parties also have financial concerns which will be addressed in considering Mr. Smith’s request for a reduction in the table amount of child support.

Law and Analysis

1. Parenting

[64] Section 24 (1) of the Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am, provides that the merits of an application for custody of or access to a child are to be determined on the basis of the best interests of the child.

[65] In considering the best interests of the child section 24 (2) of the CLRA requires the court to consider all the child’s needs and circumstances including:

Best interests of child

(a) the love, affection and emotional ties between the child and, (i) each person, including a parent or grandparent, 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) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1) ; 2009, c. 11, s. 10 ; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2 .

[66] Ever since the Supreme Court of Canada decisions in Young v. Young, [1993] 4 S.C.R. 3, and Gordon v. Goertz, [1996] 2 S.C.R. 27, the best interests of the child have been elevated from the “paramount” consideration to the ultimate and only relevant issue in deciding custody and access.

[67] There was a significant amount of evidence provided in this case as to the past conduct of both parties.

[68] Section 24 (3) of the CLRA notes:

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. 2006, c. 1, s. 3 (1) ; 2016, c. 23, s. 7 (2) .

[69] Section 24 (4)(5) of the CLRA states:

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. 2006, c. 1, s. 3 (1) ; 2016, c. 23, s. 7 (2, 3).

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. 2006, c. 1, s. 3 (1) .

Past Conduct

[70] Based on the evidence of Ms. Reynolds, Mr. Smith’s friend, Mark Condron and Ms. Reynold’s counsellor, Sandra Pinhey, I find on a balance of probabilities that during the parties’ short-term relationship and until May 2017, when Mason was born, Mr. Smith was emotionally abusive towards Ms. Reynolds. He belittled her, called her names and made hurtful remarks to her. Mr. Condron indicated in the Facebook exchange with Ms. Reynolds, he was aware of “all the shortcomings you are speaking of. The shortness, rude, mean, snapping at his kids, belittling. As I said, Sean has his own demons.” In addition, I find on a balance of probabilities that after Ms. Reynolds left Mr. Smith’s home on April 6, 2017, she suffered from a prolonged month-long campaign of communications by Mr. Smith wishing to reconcile which left her feeling bombarded, harassed and overwhelmed. Despite imploring Mr. Smith to stop and stating the relationship was over, he continued.

[71] Counsellor, Ms. Pinhey testified that over the two years of counselling Ms. Reynolds, up to June 17, 2019, she presented as being distraught, upset and consistent in her fear of Sean Smith. She wanted her interactions and relationship with him to be respectful and healthy for Mason but even since using Our Family Wizard, Ms. Reynolds indicated feeling badgered and intimidated.

[72] Although Mr. Smith’s abusive behaviour towards Ms. Reynolds is relevant to her request for a restraining order, I do not find it significant with respect to his current ability to parent Mason. There is evidence, including from Ms. Reynolds herself, that Mr. Smith is a devoted, capable parent. As was stated by Children’s Services worker, Jaclyn Armstrong, in July 2017, “it was observed through our conversation that you place your children’s interests and needs as highest priorities.” Both Ms. Armstrong and the CAS worker from Ottawa emphasized that adult conflict that could be observed or witnessed by the children must be avoided. Witnessing conflict between adults, either verbal or physical can have long-term negative effects. I do not find adult conflict between the parties witnessed by Mason or of which he is aware. As noted above, since their relationship terminated in May 2017, both Brittany Reynolds and Sean Smith have been loving and devoted parents, committed to meeting Mason’s needs. All witnesses report Mason to be a happy, loving, affectionate and active three-year-old, who is attached to both his parents.

[73] The past conduct of Ms. Reynolds in breaching previous court orders and denying Mr. Smith access is significant. Nevertheless, she acknowledges her wrong doing, has accepted responsibility, has paid the fines and costs orders and since the March 6, 2019 order, has complied with the terms for Mr. Smith’s parenting time. Therefore, just as with Mr. Smith, I do not find Ms. Reynolds’ conduct relevant to her current ability to act as a parent, which includes fostering the relationship between Mr. Smith and Mason.

Best Interests

[74] As noted above, Mr. Smith originally requested an order of joint custody and equal time sharing but amended his Application to seek an order of sole custody, primary residence and generous access to Ms. Reynolds. Ms. Reynolds has from the outset requested an order of sole custody, primary residence and generous access to Mr. Smith.

[75] In considering the factors listed under s. 24 (2) of the CLRA, as to Mason’s best interests, I make the following findings:

1. Based on all the evidence, I find there is a great deal of love, affection and significant emotional ties between Mason and each of his parents. In addition, Mason is fortunate to have four grandparents who are committed to him and with whom he has been able to establish meaningful relationships. He also has a significant attachment to his two half sisters, Emma and Kaitlyn, who spend a great deal of time with their father since their parents separated. Further, Mason has been able to develop a meaningful relationship with Mr. Smith’s current partner, Lisa Staniowski.
2. Mr. Smith’s ex-wife, April Tracey, and her husband are also in Mason’s life. Ms. Tracey, her husband, Trent, Mr. Smith and Lisa Staniowski get along well, spend time together and participate in activities together with the children, including Mason.
3. Ms. Reynolds resides with her father, who spends a great deal of time with Mason and cares for him from time to time. Although Mr. Reynolds did not testify, it is not disputed that Mason and his grandfather who he refers to as “Papa”, have a meaningful relationship. Both Ms. Reynolds’ parents are a support to her and assist her with Mason.
4. Mason has resided primarily with his mother since birth. Initially, Ms. Reynolds and Mason resided with his maternal grandmother, Carole Reynolds but since 2018, they have resided with his maternal grandfather in a three-bedroom townhouse in Barrhaven. There is a large backyard, a finished basement and a park nearby. Ms. Reynolds has enrolled Mason in activities in the community including gymnastics, swimming and soccer and has checked the schools nearby. She would like Mason to be enrolled in French immersion. There is a school near her home offering French immersion and extended daycare. Ms. Reynolds filed numerous photographs of her participating in various activities with Mason and other friends. Mason resides with his mother in a stable home environment.
5. In addition, I find Mason has spent significant quality time with his father in an access arrangement since March 2019. Mason spends approximately 31% of the time with his father. They participate in activities together and enjoy spending time with extended family. Mason has a stable home environment with his father and appears to be thriving in both homes according to all the evidence.
6. Mr. Smith and Ms. Reynolds have the ability and willingness to provide Mason with guidance, education and the necessities of life.
7. Mr. Smith frequently questions Ms. Reynolds’ attention to: Mason’s medical needs, difficulties and issues at daycare and a number of other day-to-day decisions. As noted by his friend Mark Condron, Mr. Smith is a meticulous, detail orientated individual. Mr. Condron indicated if something is wrong in Mr. Smith’s mind, he will correct whoever and whatever it is. This has proven to be the case in the previous email, text and written communications from Mr. Smith and now using the Our Family Wizard. Despite Mr. Smith’s concerns, I find Ms. Reynolds has been alert to Mason’s medical needs and issues arsing at daycare. She is a registered nurse and is a capable individual who provides her son with excellent care. Since March 2019, Ms. Reynolds has used Our Family Wizard to communicate with and seek input from Mr. Smith. This has been difficult. At times, communication by Mr. Smith, although polite, has been lengthy, detailed and complicated. At times, there has been a delay in Ms. Reynolds’ response. As was previously noted, communication remains an ongoing and consistent problem. Decisions about Mason’s health, daycare and extracurricular activities have been made with difficulty. Although both parties are committed, capable parents, they have completely different parenting styles.
8. Both parties are now established in stable family units. There was no evidence that either Mr. Smith or Ms. Reynolds intend to leave their current residences or living situations. Ms. Reynolds appears to be settled in her townhouse with her father who, at times, assists her with Mason. The maternal grandparents have both assisted in access exchanges. Mr. Smith and Ms. Staniowski have been in a relationship for approximately two years and continue to reside in the home owned by Mr. Smith, in Cobden.
9. There are some uncertainties with respect to Mr. Smith’s employment. He is still awaiting a hearing by the Police Services Board regarding the allegations of sexual assault and harassment made by Ms. Reynolds in May 2017. As previously noted, Mr. Smith was vague and unclear as to when the hearing might take place or why the process has been so significantly delayed. He continues to be an OPP officer, suspended with pay.
10. Ms. Reynolds continues her employment as a registered nurse at the Ottawa Dialysis Clinic and Ottawa Hospital. She is able to maintain her work schedule given Mr. Smith’s current access, daycare, and the assistance of her parents. There is no evidence she intends to change her employment. According to her friend and colleague Anita Murray, also a registered nurse at the Ottawa Dialysis Clinic, Ms. Reynolds is a bright, hard-working nurse and the patients love her.
11. I find both parents willing and able to meet Mason’s needs and to act in his best interests.

Decision Making

[76] In this case, the parties had a short-term relationship and separated prior to Mason’s birth. The circumstances surrounding the severing of the relationship were characterized by Ms. Reynolds’ fear of Mr. Smith and what she considered intimidation and by a wish to reconcile on Mr. Smith’s part. This led to an ongoing period of persistent, harassing communication by Mr. Smith. The situation escalated to the extent that Ms. Reynolds made a complaint to the police and charges were laid. Mr. Smith was released on a recognizance of bail with very strict communication conditions. In addition, Family and Children Services of Renfrew County and the CAS of Ottawa became involved and warned the parties against adult conflict in the presence of children. The assault and harassment charges against Mr. Smith were eventually stayed but Ms. Reynolds continues to be fearful as noted by her counsellor. Eventually, Ms. Reynolds began to refuse to provide parenting time to Mr. Smith as per court orders. She was found in contempt and, upon retaining new counsel, began to comply with the orders for access. Since March 2019, she has complied with all terms of the existing temporary court order.

[77] Ms. Reynolds continues to be fearful of Mr. Smith and feels overwhelmed and bombarded with the constant communication regarding every aspect of Mason’s life. Mr. Smith does not trust Ms. Reynolds’ judgment with respect to many aspects of Mason’s care including medical needs and daycare. Using the Our Family Wizard program, the parties have been able to maintain polite communication, but they continue to struggle to make decisions together, collaboratively, effectively and efficiently. Effective communication is important in any situation but in particular when dealing with very young children.

[78] Although, mutual consent to a joint custody order is not required and the court may make such an order in the absence of such consent, there must be some evidence before the court that despite their differences, the parties are able to communicate effectively with each other and in the best interests of the children. See Kaplanis v. Kaplanis, (2005), 10 RFL (6th) 373 (Ont. C.A) and Lawson v. Lawson, 2006 CarswellOnt 4736 (C.A.). If the parties are unable to appropriately communicate in order to make important decisions, the best interests of the child will not be advanced, under a joint custody regime.

[79] In Kaplanis, the Ontario Court of Appeal noted at paragraph 11:

[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.

[80] At the end of the day, there is no hard and fast rule as to when a joint custody order will be appropriate. I agree with the comments of Gray J., in Warcop v. Warcop, (2009), 66 RFL (6th) 438 (Ont. Sup. Ct.). At paragraph 94, the court noted:

[94] In the final analysis, in my view, an order for joint custody is not to be rejected based on any rigid standard as formerly reflected in Baker, supra. The focus is simply on the best interests of the child. The best interests of the child will obviously not be fostered if the parents are unable to communicate and cooperate in making decisions that affect the child. However, a standard of perfection is not required, and is obviously not achievable. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. In making this assessment, the Court must be governed by the evidence that has been presented as to the communication and cooperation between the parties to date; the mechanisms that are in place to ensure that it will continue; and the assessment of the judge as to the capabilities of the parties to do so in the future.

[81] Although the communication between the parties has improved somewhat using Our Family Wizard, there have been difficulties. Any decision with respect to Mason appears to take a great deal of time, energy, and involves numerous communications. There are delays in reaching decisions for Mason due to ongoing questioning and lack of trust by Mr. Smith. At times, Ms. Reynolds does not respond quickly to Mr. Smith’s questions and inquiries, as she feels constantly bombarded and overwhelmed by the number and the detail from Mr. Smith. She continues to feel intimidated and at times takes a passive approach to communication. Mr. Smith continues to be meticulous, detail oriented and hyper-diligent. I do not find the communication between the parties to be effective.

[82] Although both parties are capable parents and love Mason, their personalities and parenting styles are completely at odds. The communication between them highlights this.

Parenting Time

[83] Since birth, Mason has resided primarily with his mother but has had significant quality time with his father under a regime of access ordered March 6, 2019.

[84] As previously noted, Mason is a well adjusted, active, loving, affectionate little boy who loves and is attached to both of his parents. The relationship with both of his parents should be encouraged and supported.

[85] Mr. Smith argues there should be a change in Mason’s primary residence with generous access to Ms. Reynolds. Mr. Smith’s proposal is complicated by the fact that he does not know when or if he will be returning to work. If he does return to work, his somewhat complex day and night schedule will impact on his parenting. To move Mason’s primary residence would be a significant change for a three-year-old child, not only in terms of the specific residence but the community. He has lived in Ottawa with his mother his entire life and is doing well. Despite the difficulties between his parents at the time of trial, Mason was flourishing with the current arrangement. Although both Mr. Smith and Ms. Reynolds are good parents and caregivers to Mason, this does not mean a mathematical calculation should be done to ensure they have exactly equal time with their son. It is important to remember quality of parenting time is what is important. Days and hours with the child are simply a measure of quantity and do not necessarily equate to quality time.

[86] In the case at bar, I note the following:

1. 50-50 equal time sharing would be a significant change for a three-year-old.
2. Mason’s home and primary residence have been with his mother since his birth.
3. Mason is thriving under the current arrangement.
4. Equal time will require even more communication than the current arrangement. Reasonable communication has been a challenge.
5. The parties parenting styles and personalities are significantly different. As previously noted, Mr. Smith is meticulous, detail oriented and wants to provide input regarding every aspect of Mason’s life. Ms. Reynolds, on the other hand, is more of a laissez-faire parent and can be passive in communicating with Mr. Smith.
6. These parents reside a significant distance from one another, an approximately 1.5-hour drive between Cobden and Ottawa.
7. A great deal of Mr. Smith’s testimony at trial emphasized his rights, how he had been victimized by Ms. Reynolds, and his feelings regarding the missed time he had with Mason. Mr. Smith continues to feel wronged by Ms. Reynolds. A great deal of evidence was spent on whether they had actually resided together prior to Mason’s birth, what were their intentions, what furniture was purchased etc.

[87] Overall, I find it in Mason’s bests interests to maintain the current schedule with his father. I do not find Mr. Smith to have met the onus on him to prove on a balance of probabilities that a change to an equal or greater time-sharing regime or to move three-year-old Mason’s primary residence would be in the child’s best interests. The current schedule is working well. Mason has adjusted and is comfortable with the current arrangement. Adjustments will need to be made when he begins school, likely in September 2021.

Parenting Order

[88] I find it in Mason’s best interests, considering all the evidence, to make an order of sole custody (final decision-making) to Ms. Reynolds who will continue to provide Mason’s primary residence, with specified generous parenting time to Mr. Smith. Mr. Smith is entitled to inform himself and to take an active role with respect to decision making but ultimately, if an agreement cannot be reached, I find the final decision should rest with Ms. Reynolds.

[89] A final order shall issue as follows:

[90] The parties shall share parenting with respect to the child, Mason James Reynolds-Smith, born May 9, 2017. The child’s primary residence will be with his mother who will have sole custody.

Decision Making

[91] When there are important decisions as to Mason’s well-being including: education, religion, medical and dental needs, Ms. Reynolds will inform Mr. Smith with a message through Our Family Wizard containing the following information:

i. Details of the decision to be made; ii. Any information she has with respect to the decision to be made; iii. Any information as to the child’s views; and iv. The date by which Mr. Smith must respond and provide his comments and preferences as to the decision to be made. Mr. Smith’s preferences are to be provided by a message through Our Family Wizard with respect to his position to which Ms. Reynolds will respond. Mr. Smith may provide one further comment. If Ms. Reynolds requires more information or clarification based on Mr. Smith’s responses, she may request further information by way of additional messages.

2. After completing the process outlined in paragraph 3 above, where there is a disagreement between the parties, Ms. Reynolds shall have final decision-making authority and shall immediately inform Mr. Smith by way of Our Family Wizard of the decision.
3. In the event of an emergency, the parent having care of the child shall make any decisions required and immediately inform the other parent by phone, text, email or Our Family Wizard.
4. The child’s health card shall travel between the parents’ homes.
5. Mr. Smith shall be permitted to obtain information about Mason and consult directly with his doctors, dentist, daycare providers, babysitters and other service providers. With Ms. Reynolds’ consent, not to be unreasonably withheld, Mr. Smith shall be permitted to attend some teacher meetings, medical and dental appointments, school events, field trips, and extracurricular activities to observe the child’s progress and participation.
6. Mr. Smith shall further be entitled to receive at his own cost, copies of all medical, dental, daycare, school, and any other third-party reports related to Mason.

Parenting Time

1. The parties shall share parenting time with Mason.
2. Mason’s primary residence shall remain with Ms. Reynolds.
3. Prior to Mason commencing school: a. While Mr. Smith continues to be on work suspension, he shall continue to have Mason in his care as per the existing temporary order of Justice MacEachern dated March 6, 2019, with any changes as agreed upon by the providers. b. When Mr. Smith returns to work, the schedule will be as follows: i. Mr. Smith will have Mason in his care from Saturday at 9:30 until Sunday at 6:15 p.m., every weekend when he is not scheduled to be working. The exchanges shall occur through the Family Services Ottawa supervised exchange program or at daycare. Based on Mr. Smith’s previous work schedule, this will result in Mason being with Mr. Smith two weekends in a row. ii. During the weeks when Mr. Smith does not have weekend access, Mr. Smith shall have Mason with him from Tuesday at 9:30 a.m. with pickup from daycare to Wednesday at 4:00 p.m. with a return to daycare. Based on Mr. Smith’s previous schedule, he could be working one of those Wednesdays. However, I find it Mason’s best interests to spend that additional time with Mr. Smith’s partner, Lisa Staniowski and members of his extended family.
4. When Mason commences school, Mr. Smith will have Mason in his care on the following schedule: a. While Mr. Smith continues on work suspension: i. Alternate weekends, from the end of school on Friday until Sunday at 6:15 p.m., with pickup at the school and drop off on Sunday through the Family Service Ottawa supervised access exchange program or at daycare. ii. On the other weekends, on Saturday from 9:30 a.m. to 6:00 p.m. with pick-up and drop off at daycare or Family Service Ottawa. iii. Every Wednesday from the end of school until 7:00 p.m. b. When Mr. Smith returns to work: i. On weekends when Mr. Smith is not working, he will have Mason in his care from the end of school on Friday until Sunday at 6:15 p.m. with the pickup done at the school and the drop off on Sunday through the supervised access centre. ii. Every Tuesday from the end of school until 7:00 p.m. with the pickup at school and the drop off at daycare or through the Family Service Ottawa supervised access centre.
5. All exchanges shall occur in Ottawa, as noted above, or at other locations as agreed upon between the parties.

Holiday Schedule

1. During the summer months, July and August, each party shall have a full week with Mason commencing Sunday at 4:00 p.m. until the following Sunday at 4:00 p.m. in July and another in August. The parties will advise each other by May 1 st of their chosen weeks. Mr. Smith will have first choice in odd numbered years and Ms. Reynolds will have first choice in even numbered years. The exchanges will occur through the Family Service Ottawa exchange program, daycare, or other location agreed upon by the parties. Otherwise, the regular access schedule will occur during July and August.
2. Mr. Smith will have access to Mason from Christmas Eve at 11:00 a.m. until Christmas Day at 3:00 p.m. and Mason will be with Ms. Reynolds from 3:00 p.m. on Christmas Day until 7:00 p.m. on Boxing Day in odd numbered years and with Ms. Reynolds from Christmas Eve at 11:00 a.m. until Christmas Day at 3:00 p.m. and Mr. Smith from 3:00 p.m. on Christmas Day until 7:00 p.m. on Boxing Day in even numbered years.
3. Once Mason attends school, he will spend March Break with his father in odd numbered years and with his mother in even numbered years.
4. Other holidays will be as follows: i. Easter from Thursday after school or daycare at 3:00 p.m. until Monday at 5:00 p.m. with Mr. Smith in even numbered years and with Ms. Reynolds in odd numbered years. The exchanges on Easter Monday will occur at the Barrhaven Costco parking lot. ii. If Mason is not otherwise with Ms. Reynolds on Mother’s Day, he will spend it with her from Saturday at 6:00 p.m. until his return to school on Monday with the exchange to occur at the Barrhaven. Costco parking lot. iii. If Mason is not otherwise with Mr. Smith on Father’s Day, he will spend it with him from Saturday at 6:00 p.m. until Sunday at 6:00 p.m. with the exchange to occur at the Barrhaven Costco parking lot. iv. Mason will stay with Mr. Smith on Thanksgiving weekend in odd numbered years from Friday after school until Monday at 6:00 p.m. with the exchange to occur at the Barrhaven Costco parking lot.
5. All exchanges shall occur in Ottawa, as noted above, or at other locations as agreed between the parties.

Other Parenting Terms

1. There may be other parenting time and adjustments to the schedule above as agreed upon between the parties.
2. All communication between the parties will occur through Our Family Wizard.
3. Ms. Reynolds may apply for a passport or other travel documentation for Mason after providing 20 days notice to Mr. Smith through Our Family Wizard. If Mr. Smith refuses to sign the application or provide his consent, Ms. Reynolds may obtain the passport or other travel documentation without Mr. Smith’s consent or signature.
4. Ms. Reynolds may travel with Mason without Mr. Smith’s consent. She will provide 20 days written notice of any travel outside the country.
5. If Mr. Smith wishes to travel outside the country with Mason, Ms. Reynolds must consent. Mr Smith shall provide 20 days written notice. Ms. Reynolds will not unreasonably withhold consent.
6. If either party wishes to travel with Mason outside the country, a detailed itinerary shall be provided at least 14 days prior to travel including details as to how to contact the child during the trip.
7. Ms. Reynolds shall not plan to move further than 1.5 hours drive from Mr. Smith’s residence without providing 90 days written notice to him and obtaining his written consent or a court order.
8. Neither parent shall speak disparagingly or negatively about the other or allow or encourage others to do so in the presence of the child.
9. Neither parent shall discuss with the child or with another party, present or past legal proceedings or issues between the parties including conflict between the parties relating to parenting issues.

2. Child Support

[92] In her Answer dated June 1, 2017, Ms. Reynolds requested child support in the amount of $925 per month based on Mr. Smith’s income of $105,785 per year commencing, June 1, 2017. In addition, she requested the parties share special and extraordinary expenses pursuant to section 7 of the Child Support Guidelines (CSG) in proportion to their incomes. Life insurance was also requested to secure child support.

[93] On August 29, 2017, on consent, a temporary without prejudice order was made requiring Mr. Smith to pay child support for Mason based on an income of $97,701 per annum in the amount of $500 per month commencing September 1, 2017, which was less than the table amount under the CSG. Further disclosure was ordered and on November 15, 2017, Justice Labrosse changed the temporary without prejudice order and required Mr. Smith to commence paying child support in the amount of $893 per month based on an annual income of $101,827 commencing December 1, 2017, without prejudice to either party seeking to vary that amount and seek retroactive adjustment. On March 29, 2018, Justice Linhares De Sousa made a temporary order that Mr. Smith pay child support in accordance with the CSG. His income in 2018 was $104,244. Child support as per the CSG table amount is $944 monthly. There is no evidence as to Mr. Smith’s 2019 income. The parties are relying on the 2018 income for child support purposes.

[94] Mr. Smith has always paid his child support as per the court orders of Justice Labrosse – $500 per month as of September 1, 2017 and $893 per month as of December 1, 2017. Although his income has increased, there have been no adjustments to child support.

[95] For the purposes of calculating special and extraordinary expenses pursuant to s. 7 of the CSG, which are currently comprised of daycare and some extracurricular costs, Ms. Reynolds’ income in 2017 was $45,758. Her financial statement dated August 27, 2019 indicated her 2018 gross income from all sources was $48,912. As previously noted, in October 2018, Ms. Reynolds began training for her new position as a registered nurse at The Ottawa Hospital, General campus. Her August 27, 2019 financial statement indicates her employment income in 2019 was $66,000.

[96] Ms. Reynolds requested a retroactive adjustment to child support and submitted a table of amounts outstanding from June 2017, when she first requested child support in her Answer, to September 2019 just prior to trial. There was no cross-examination nor dispute as to the amounts requested in this table being the amounts payable pursuant to the CSG Table. Up to September 2019, a retroactive adjustment to child support would result in Mr. Smith owing $4,974. Mr. Smith does not take issue with that amount but argues he should not have to pay child support pursuant to the CSG Table as he would suffer undue hardship.

Undue Hardship

[97] Pursuant to s. 3 of the CSG, Mr. Smith is presumptively required to pay the amount set out in the applicable table, based on his annual income, as well as the amount, if any, determined under s. 7 of the CSG for special or extraordinary expenses. As noted above, Mr. Smith argues that to pay child support for Mason as per the applicable Table would cause him to suffer undue hardship.

[98] Section 10 of the CSG indicates the court may order an amount of child support different from the amount determined under s. 3, if the court finds that the parent would suffer undue hardship. Section 10(2) provides a non-exhaustive list of circumstances that may cause a parent undue hardship as follows:

Circumstances that may cause undue hardship

(2) Circumstances that may cause a parent, spouse or child to suffer undue hardship include, (a) the parent or spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living; (b) the parent or spouse has unusually high expenses in relation to exercising access to a child; (c) the parent or spouse has a legal duty under a judgment, order or written separation agreement to support any person; (d) the spouse has a legal duty to support a child, other than a child of the marriage, who is, (i) under the age of majority, or (ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; (e) the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age of majority or who is enrolled in a full-time course of education. (f) the parent or spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability. O. Reg. 391/97, s. 10 (2) .

[99] Section 10 goes on to indicate:

Standards of living must be considered

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the parent or spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other parent or spouse. O. Reg. 391/97, s. 10 (3) .

Standards of living test

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II. O. Reg. 391/97, s. 10 (4) .

Reasonable time

(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the order for child support, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time. O. Reg. 391/97, s. 10 (5) .

Reasons

(6) Where the court makes an order for the support of a child in a different amount under this section, it must record its reasons for doing so. O. Reg. 391/97, s. 10 (6) .

[100] The first step in determining undue hardship is whether an order for child support under the applicable CSG Table would cause Mr. Smith to suffer undue hardship. The burden of proof is on Mr. Smith. The threshold to meet this burden is high. The hardship must be exceptional, excessive and disproportionate, see Morrone v. Morrone, [2007] 44 R.F.L. (6th) 389 (Ont. S.C.J.).

[101] If the court determines there would be undue hardship, after considering the circumstances listed under s. 10(2) and any other relevant financial circumstances, section 10(3) requires the court to consider the standards of living of the households of both parties. If Mr. Smith’s household has a higher standard of living than the household of Ms. Reynolds, his application to award a reduced amount of child support for Mason must be denied. The comparison of household standards of living set out in Schedule 2 of the CSG which can be of assistance to the court, was not provided by Mr. Smith.

[102] Mr. Smith based his argument that he would suffer undue hardship on the following:

1. significant debt owed to his parents to defend his criminal charges, to renew his mortgage and for other incidentals; and
2. child support paid for his two daughters in the amount of $670 per month as well as his contribution to their competitive hockey fees. Mr. Smith testified that Emma is no longer pursuing competitive hockey.

[103] Mr. Smith also argues that his household standard of living is less than Ms. Reynolds. Although he owns his own home and resides with a new partner, Mr. Smith argues they live a frugal existence doing their own gardening, freezing food, cutting their own hair and receiving assistance from Mr. Smith’s parents and his ex-wife, April Tracey, for gifts, meals out of the home and other incidentals.

[104] With respect to these arguments, I note the following:

1. Although Mr. Smith’s father, David Smith testified the funds he and his wife provided to their son were debts which he is expected to repay, there was no documentary evidence submitted by Mr. Smith or his father to prove these debts, which he indicates total over $37,000. There is no contract, no promissory note, no letter nor memorandum with respect to any debt. Mr. Smith’s most recent financial statement dated August 20, 2019, does not indicate that he is repaying any of these debts.
2. Mr. Smith and his ex-wife, April Tracey, have a flexible time-sharing arrangement for their daughters. They use the set-off approach to calculate child support. Currently, Mr. Smith pays $670 per month for the two girls. He also contributes a significant amount to their competitive hockey costs, drives them to games and practices and at times, to their out of town tournaments. Although he indicates Emma is no longer involved in competitive hockey, the gas costs, car maintenance and other associated expenses are not insignificant. Although Mr. Smith is obliged to pay child support and contribute to the special and extraordinary expenses for his daughters, it is not presumed that he will suffer undue hardship due to these responsibilities. He also has a legal obligation to pay an appropriate amount of child support for Mason.
3. Mr. Smith has an income of over $100,000. In addition, he resides with his partner, Lisa Staniowski, who earned $38,482 in 2018 and contributes approximately $400 per month to household expenses and will contribute to other expenses as required. There was little evidence provided as to why Ms. Staniowski regularly contributes only $400 per month to the household when Mr. Smith’s financial statement indicates that monthly housing and utility costs are approximately $2,000. Based on their incomes, if Ms. Staniowski was contributing to the household costs proportionate to her income, she would be paying approximately 37% or $740 per month.
4. In considering Mr. Smith’s financial statement, I note he spends $600 per month for alcohol and tobacco. He also lists $200 per month as expenses for meals outside the home, although he indicated his parents pay for any meals out.

[105] Based on all the evidence, I do not find Mr. Smith has met the burden of proving on a balance of probabilities exceptional, excessive and disproportionate hardship. Even if Mr. Smith had been able to meet the burden of undue hardship, there was insufficient reliable evidence to permit an accurate determination of the respective standards of living of the two households. I am left with the facts that Mr. Smith is a home owner, living in a rural community, earning over $104,000 annually and residing with a new employed partner. I do not find on a balance of probabilities he would suffer undue hardship if ordered to pay child support for Mason as per the CSG Table.

Child Support Order

1. Based on an annual employment income of $104,244, Mr. Smith is ordered to pay child support for Mason in the amount of $944 per month commencing August 1, 2020.
2. Further, Mr. Smith is to pay retroactive child support in the amount of $5,433 by December 31, 2020. This is based on the CSG Table amount payable for Mason from June 2017 to July 2020, based on Mr. Smith’s income. There is no up to date information with respect to Mr. Smith’s 2019 or 2020 income. The calculations are based on his 2018 income. This approach is agreed to by Ms. Reynolds subject to full disclosure of his 2019, 2020 and future income. To the $4,974 in retroactive child support calculated by Ms. Reynolds in the table filed as evidence, the retroactive adjustment of $51 per month totalling $459 for the additional 9 months of October to July 2020, must be added in.
3. Based on Mr. Smith’s 2018 annual employment income of $104, 422 and Ms. Reynolds’ annual employment income of $66,000 as stated in her financial statement of August 27, 2019, Mr. Smith is to pay 61% of Mason’s special and extraordinary expenses on an ongoing basis. This will include his proportionate share of the after-tax daycare costs, payable by him on the first of each month with the daycare cost amount to be adjusted between the parties annually by July 1 st of each year. The parties will only contribute to other special or extraordinary expenses if agreed to in advance in writing. Neither party will unreasonably withhold consent.
4. Mr. Smith shall name Ms. Reynolds as the irrevocable beneficiary in trust for Mason of one-third of any insurance policy he has, so as long as he has an obligation to pay child support for Mason. If Mr. Smith is unable to add Ms. Reynolds to his current life insurance policies, he will acquire life insurance to secure his child support obligation to Mason.
5. On or before June 1 st of each year, the parties will exchange income information for the prior calendar year which they will use to adjust the child support payable, including both the table amount and any special or extraordinary expenses.
6. Any change in the table amount and the proportionate sharing of special or extraordinary expenses will commence on July 1 st of each year.

3. Restraining Order

[106] Ms. Reynolds has requested a restraining order under s. 46 of the Family Law Act, R.S.O. 1990, c.F.3 which reads as follows:

Restraining order

46 (1) 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. 2009, c. 11, s. 35 .

Same

(2) A restraining order under subsection (1) may be made against, (a) a spouse or former spouse of the applicant; or (b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time. 2009, c. 11, s. 35 .

Provisions of order

(3) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.
2. Restraining the respondent from coming within a specified distance of one or more locations.
3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
4. Any other provision that the court considers appropriate. 2009, c. 11, s. 35 .

[107] Although Ms. Reynolds argued that she did not really co-habit with Mr. Smith, I have found as a fact that she cohabited with him the majority of the time from the summer of 2016 until April 6, 2017. Therefore, she is entitled to apply for a restraining order pursuant to s. 46(2)(b).

[108] In this case, Ms. Reynolds must prove on a balance of probabilities that she has reasonable grounds to fear for her safety or the safety of Mason.

[109] In Noriega v. Litke, 2020 ONSC 2970, Justice Price emphasized both the subjective and objective elements of the test for a restraining order and adopted the reasoning of Dunn J. in Khara v. McManus, [2007] O.J. No. 1868, (O.C.J.) who described the test for a restraining order at paragraph 33 as follows:

…it is not necessary for a respondent to actually have committed an act, gesture, or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed … However, 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 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 the respondent’s action or words. A court must be able to connect or associate a respondent’s actions or words with the applicant’s fears. [emphasis added]

[110] In case at bar, I note the following:

1. During their short-term relationship of less than a year, Mr. Smith belittled Ms. Reynolds, called her names, and made hurtful comments.
2. After Ms. Reynolds left the relationship in April 2017, Mr. Smith engaged in a pattern of harassment in a campaign of text messages, emails, telephone calls, Facebook messages, attending at Ms. Reynolds’ home and work in person, with the goal of persuading her to reconcile. Although Ms. Reynolds communicated clearly that she did not wish to reconcile and the relationship was over, he continued the constant communication. Ms. Reynolds was vulnerable, pregnant and scared. She left bombarded, harassed and overwhelmed and could not escape Mr. Smith’s constant communication. Ultimately, she attended the police station and charges were laid of criminal harassment. In addition, Mr. Smith was charged with sexual assault. There was no viva voce evidence provided at trial by either Ms. Reynolds or Mr. Smith with respect to the alleged sexual assault and I cannot make any findings in that regard.
3. After his arrest on May 19, 2017, Mr. Smith was released on a recognizance of bail on conditions, including that he not contact or communicate in any way with Ms. Reynolds, and not be within 100 metres of her or any place she was located. He abided by those conditions. The criminal charges were ultimately stayed on March 14, 2019 and therefore Mr. Smith was no longer bound by the conditions of his recognizance.
4. There is no evidence that since the charges were stayed, Mr. Smith has engaged in name calling, belittling, harassing behaviours or any emotional, physical or sexual abuse of Ms. Reynolds. Although she continued to see her counsellor until June 2019 and has been consistent in expressing her fear of Mr. Smith, the communications between them have been polite. The exchanges of Mason have been at the daycare, through Family Service Ottawa, or at a neutral location by an agreed upon third party.
5. In her testimony, Ms. Reynolds was clear she continues to be fearful of Mr. Smith and how he might behave towards her. She feels intimidated, overwhelmed and bombarded by Mr. Smith’s numerous, persistent, detailed communications regarding Mason’s day to day care.

[111] In Yenovkinav v. Gulian, 2019 CarswellOnt 21614 (S.C.J.), Justice Kristjanson considered the type of evidence required for an applicant to establish subjective reasonable grounds to fear as follows:

A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. See: Purewal v. Purewal, 2004 ONCJ 1195.

[112] Although it is clear Ms. Reynolds is still fearful, this is not a case of lengthy or ongoing harassment or abusive behaviour. Mr. Smith’s communications regarding Mason, although overwhelming to Ms. Reynolds, do not demonstrate a persistent pattern of harassing and abusive conduct. Although Ms. Reynolds has had subjective fears, it is difficult to relate them to Mr. Smith’s actions over the last two years. Mr. Smith complied with the conditions of his release on the criminal charges and, although not bound by those conditions or by the terms of a temporary restraining order under the Family Law Act, Mr. Smith has not engaged in harassing or abusive behaviour and has abided by the terms of the existing access order, including the supervised exchanges.

[113] A restraining order is a significant, serious remedy with potentially serious repercussions and implications for the liberty of the person restrained. Ms. Reynolds’ statements that she continues to be fearful are not sufficient to establish either subjectively or objectively, at this point in time “reasonable grounds to fear” for her safety. Therefore, her request for a restraining order is denied.

Costs

[114] If the parties cannot agree upon costs, Mr. Smith shall provide costs submissions not to exceed two pages plus a bill of costs and any offers to settle by August 6, 2020. Ms. Reynolds is to provide her costs submissions not to exceed two pages plus a bill of costs and any offers to settle by August 20, 2020 and reply submissions by the Mr. Smith are due by August 27, 2020. Please forward the costs submissions by email to scj.assistants@ontario.ca.

Blishen J.

Released: July 21, 2020

COURT FILE NO.: FC-17-1138 DATE: 2020/07/21 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Sean Smith Applicant – and – Brittany Reynolds Respondent REASONS FOR JUDGMENT Blishen J. Released: July 21, 2020