ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NADIA PAFTALI
Applicant
– and –
BRUNO PAFTALI
Respondent
Cheryl A. Hodgkin, for the Applicant
Jerrod D. Patterson, for the Respondent
HEARD: November 25, 26, 27, 28, 29, and December 17, 18, 19, and 20, 2019
REASONS FOR JUDGMENT
HOWARD J.
Overview
1The parties have two young boys. Stephen is now 11 years of age, and Sebastien is 8 years of age.
2I have no doubt and readily accept that each of the parties, as they both testified at trial, loves their two boys very much.
3And I also have no doubt that each of the parties, despite their professed love for their children, fails to appreciate the extent to which their mutual desire to continue to engage in high-conflict litigation negatively impacts and harms their two boys – because the applicant mother and respondent father have been engaged in high-conflict litigation since the outset of this proceeding.
4There have been numerous decisions of the courts that have recognized the harm that is occasioned upon children whose parents are immersed in high-conflict litigation. One such decision is Peers v. Poupore, where Curtis J. of the Ontario Court of Justice made the following observations, many of which are relevant to this case:
The literature indicates that parental conflict is a major source of harm to children. High levels of parental conflict in separated families can have a devastating impact on children and their development: Jackson v. Jackson, 2008 3222 (ON SC), 2008 CarswellOnt 654, 50 R.F.L. (6th) 149 (Ont. S.C.J.), para 20.
Conflict between parents at this level, sustained with this intensity, and sustained over such a prolonged period of time, is unusual. It is unhealthy for the adults involved, and it presents a clear risk of harm for the children who are cared for by those adults: …
A court should not award custody to reward good conduct or punish misconduct But the court cannot ignore the parents' behaviour when that behaviour, as in this case, so strongly impacts on the child's best interests and his life.
It is fundamental to the identity of a child to be able to love and accept love from each available parent. The mother refuses to accept the underlying [principle] for a child from separated parents, which is that in most cases, it is the job of the custodial parent to support the child's relationship with the access parent.1
5The central issues at trial were custody and access. In particular, the critical dividing point between the parties was the question of overnight access. The applicant mother seeks sole custody of the two boys and rather restricted terms of access for the respondent father, providing for no overnight access at all. The respondent father seeks joint custody and what is colloquially referred to as “garden-variety access.” As detailed below, his plan of care contemplates two nights of overnight access.
6To their credit, the parties were able to resolve all of the financial issues (with the exception of child support), and a consent order dated November 29, 2019, was issued mid-trial.
7The trial of this matter was held in Windsor on November 25, 26, 27, 28, 29, and December 17, 18, 19, and 20, 2019. The court heard evidence from six witnesses over eight days. Closing submissions were delivered on the ninth day. The witnesses at trial consisted of the applicant mother, the maternal grandmother, the maternal grandfather, the clinician from the Office of the Children’s Lawyer who authored a report, a neighbour of the parties when they resided in the matrimonial home, and the respondent father.
8Both parties were represented by legal counsel at trial. As indicated above, the respondent father was represented by Mr. Patterson at trial. Subsequently, by notice of change in representation filed with the court on March 20, 2020, the respondent father advised that he is now representing himself in this proceeding.
Factual Background
9I do not propose to summarize the evidence of each of the witnesses who testified before me at the trial. There is no need to repeat all of that detail here. While the parties should know that I have considered all of the evidence presented at trial, my written decision deals with the particulars of the material evidence only insofar as necessary to determine the legal issues in dispute or provide sufficient context for an appreciation of the determination of those issues.
10Moreover, much of the evidence at trial was devoted to each party recounting their own perspective on the “who did what to whom” chronology of events and offering their own views as to which party bears responsibility for each incident. As such, as is often the case with high-conflict litigation, the adversarial nature of the trial process itself served to reinforce the entrenchment of the parties in their respective positions. As Mr. Patterson observed in his closing submissions on behalf of the respondent father, “there has been two years of mud-slinging; and now we’ve had nine days of it.”
11Given that reality, I do not propose to review and comment upon every incident in the parties’ “who did what to whom” chronology. That kind of review is neither necessary nor helpful. On the contrary, such a review often serves only to further enflame the already-difficult relations between warring litigants. The reality here is that the two boys are still young, and they have before them many years’ worth of experiences, some wonderfully happy and no doubt others less so, in respect of which they will require that both their parents find a way to parent them and participate in their lives in a constructive, respectful, and responsible manner.
12The other reality, as I indicated in my remarks at the conclusion of the trial, is that each of the members of the boys’ family who testified at trial would not escape criticism in such a review, for each of them, at certain times, engaged in conduct and comment that was inappropriate and inconsistent with the best interests of the children.
13The applicant mother, Nadia Paftali, was born on July 12, 1985, in Windsor, Ontario (“Nadia”). She was 34 years old at the time of trial.
14The respondent father, Bruno Paftali, was born on June 23, 1984, in Durazzo (Durrës), Albania (“Bruno”). He was 35 years old at the time of trial.
15The parties met in Italy in approximately 2005, when Nadia was studying there on an exchange program during her undergraduate studies. Bruno had been living in Italy since approximately 1996 and worked in construction.
16The parties married on October 13, 2007, in Mirano, Italy. Nadia was 22 years of age and Bruno was 23 years of age when they married. Nadia moved home to Windsor shortly after the marriage, and Bruno moved to Canada for the first time shortly thereafter and joined his new wife in Windsor.
17Nadia and Bruno came from very different family backgrounds.
18Nadia’s father, who gave evidence at trial, is retired and was a successful business-person. Nadia’s mother, who also gave evidence at trial, is now a retired school teacher. The applicant’s parents have three children, including Nadia, all three of whom are school teachers. It appears her upbringing was one of relative comfort. Again, Nadia met Bruno in the first place when she was in Italy on an exchange program for her undergraduate studies. It is clear that Nadia enjoys the blessings of a very close-knit family, with, for example, regular, if not weekly, Sunday dinners at the grandparents’ home involving the entire family, and the entire family taking joint vacations together.
19By the same token, it is also clear to me that certain “boundary issues” arose within the relationship between Nadia and Bruno, with, to take but one example, the maternal grandparents apparently believing that they were at liberty to deliver unsolicited advice to their son-in-law as to his parenting behaviours with their grandsons. From the perspective of the maternal grandmother, there was a particular Sunday dinner, after the table had been cleared and the grandparents were left alone with Bruno, that provided the “perfect moment” for the grandparents to “raise our concerns” with how Bruno was raising their grandsons. Not surprisingly, except perhaps to the grandparents, Bruno did not take kindly to his in-laws’ critique of his parenting habits with his two sons. Not surprisingly, except perhaps to the grandparents, as the grandmother understatedly observed, “that was the beginning of the demise of the relationship.” It was, of course, no wonder.
20Bruno had a quite different upbringing.
21Bruno was born and raised in Albania. He grew up in a poor family. His evidence was that his grandfather had spent several years in prison during the Communist regime. The family scrounged money together in order to send Bruno and his older brother over to Italy to live with an uncle there and to escape the political unrest in Albania, which ultimately led to a civil war in 1997. Bruno left Albania when he was 12 years of age. Life was difficult for Bruno and his brother when they arrived in Italy, and for a period of time they “lived on the street.” He completed his Grade 8 education in Italy but did not attend high school. When he was 15 years old, he got a full-time job and went to work. He sent money back to his parents and grandfather in Albania. He worked in construction. His parents ultimately followed the boys to Italy about five years later, and they continue to reside there.
22When Bruno and Nadia were first married, they moved into a home that had been owned by Nadia’s paternal grandmother. The parties moved into the matrimonial home located at 3053 Woodland Avenue, Windsor, Ontario, in or about 2013.
23Nadia became pregnant with the couple’s first child within a few months of their marriage in October 2007. The parties are the natural born parents of two children, namely, Stephen Paftali, born September 22, 2008, and Sebastian Paftali, born July 12, 2012. Nadia was 23 years old when she gave birth to Stephen and 27 years old when Sebastian was born. At the time of trial, Stephen was 11 years of age, and Sebastian was 7 years of age.
24Nadia is a full-time teacher employed with the Greater-Essex County District School Board. According to her notices of assessment, she earned $62,390 in 2016, $66,655 in 2017, and $70,026 in 2018.
25Bruno is a full-time labourer at Danruss Construction. According to his notices of assessment, he earned $60,187 in 2016, $75,427 in 2017, and $74,533 in 2018. That said, his 2018 T4 indicates that he earned $68,164.68, and his 2018 income tax return indicates that $5,700 of his Line 150 income was sourced from a withdrawal from his Registered Retirement Savings Plan (“RRSP”).
26Bruno is paying child support to Nadia in the amount of $1,038 per month in accordance with his 2018 T4 income of $68,164.68. It is agreed that when that amount was agreed upon Bruno had not disclosed that he had redeemed $5,700 from his RRSP in 2018.
27Married on October 13, 2007, Nadia’s position is that the parties separated on November 30, 2017. Bruno’s position is that the parties had an argument on November 30, 2017, and during the month of December 2017, he split his time staying at both the matrimonial home and with friends when conflict arose with Nadia. However, the parties did not physically finally separate until January 27, 2018. That said, the parties agreed to use November 30, 2017, as the valuation date for equalization purposes.
28In any event, theirs was a relationship of some ten years.
29Nadia left the matrimonial home on the night of January 27, 2018, following a dispute or confrontation between the parties that started at a local pub-house and subsequently continued at the matrimonial home. Thankfully, the children were in the care of Nadia’s parents that evening.
30On January 28, 2018, Nadia informed Bruno that she would be staying with the children at her parents’ home located at 3307 Dandurand Boulevard, Windsor, Ontario. Nadia and the two boys have resided there, with the maternal grandparents, since January 28, 2018.
31Bruno resided on his own in the matrimonial from January 28, 2018, until July 29, 2019.
32Nadia commenced this proceeding by application issued on March 12, 2018, pursuant to the Divorce Act.2
33On the same day, that is, also on March 12, 2018, Nadia filed an emergency – and without notice – motion for, inter alia, custody, supervised access for the respondent father, and an order restraining Bruno from removing the children from school or Windsor, Ontario.
34On March 16, 2018, Munroe J. granted Nadia’s emergency motion, without notice to the father, for interim residency and restraint against possible abduction. The balance of the mother’s motion was adjourned to March 23, 2018, with notice then given to Bruno.
35Upon receiving notice of the motion and order on March 20, 2018, Bruno served and filed a motion for interim access, also returnable March 23, 2018.
36On March 23, 2018, the parties consented to an interim without prejudice order, which provided that:
a. the parties adjourned both of their motions until April 13, 2018;
b. pending the adjournment, the terms of the order of Munroe J. dated March 16, 2018, providing for interim residency and restraint against possible abduction, remained in effect;
c. Bruno was granted unsupervised access every Saturday from 12:00 p.m. until 6:00 p.m., on condition that Bruno “abstain from alcohol consumption prior to and during access.”
37The motions for access were subsequently adjourned multiple times for various reasons. As a result, for more than a year, i.e., from March 23, 2018, to September 18, 2019, Bruno’s parenting time with the two boys was limited to six hours per week, on Saturday afternoons.
38On June 19, 2018, Munroe J. made a referral order and requested the involvement of the Office of the Children’s Lawyer (“OCL”) by way of an investigation and report pursuant to s. 112 of the Courts of Justice Act.3
39The OCL consented to the appointment in accordance with s. 112 of the Courts of Justice Act and assigned the matter to one of its clinicians, Ms. Shalini Lakshminarayan, on July 24, 2018.
40Interviews with the children and the parties were conducted by Ms. Lakshminarayan between July 30, 2018, and September 10, 2018.
41A disclosure meeting was held on December 19, 2018 with the parties, their counsel, and Ms. Lakshminarayan.
42The OCL report was released to the parties on February 11, 2019. It recommended, inter alia, that Nadia should have sole custody and primary residence of the two boys, and that Bruno should have access with the children every Tuesday and Thursday evening, from after school to 8:00 p.m., and every other weekend from Friday after school until Sunday evening at 6:00 p.m.
43By motion dated April 16, 2019, Bruno brought a motion originally returnable on April 26, 2019, for access in accordance with the OCL recommendations. The motion was adjourned to a special appointment on the running list the week of September 16, 2019.
44Nadia filed a cross-motion returnable September 16, 2019, for disclosure and various relief.
45The parties partially resolved the special appointment motion, pursuant to which I granted, on consent, an interim without prejudice order dated September 18, 2019, providing Bruno access with the children pending trial on, inter alia, the following terms:
a. Every Wednesday from 5:30 p.m. to 7:30 p.m.;
b. Alternate weekends on Saturday from 9:30 a.m. until 4:30 p.m. and Sunday from 9:30 a.m. until 3:30 p.m.; and
c. All exchanges to take place at the New Beginnings Supervised Access Centre in Windsor.
46The first Wednesday access visit was on September 25, 2019, and the first Saturday and Sunday access weekend occurred the weekend of October 5, 2019.
47The jointly owned matrimonial home was sold for $295,946.36, which transaction closed on August 1, 2019. Bruno subsequently secured his own residence.
48It is common ground that Bruno paid all the expenses related to the matrimonial home from February 2018 until August 1, 2019, including the mortgage, property insurance and property taxes. The mortgage payments were $637.76 per month.
49To date, Nadia continues to reside with the two boys at her parents’ home.
50The children are currently receiving counselling services from Dr. Rueben Schnayer, a psychiatrist qualified to provide counselling to the children to assist the boys during their parents’ separation. It is “closed” counselling.
Issues
51As I have said, the central issue at trial involves the parenting arrangements for the two boys. I address the following below:
a. The applicant mother’s attempt to introduce surreptitious recordings at trial;
b. Custody;
c. Access;
d. Communication issues;
e. Child support; and
f. The applicant mother’s attempt to adduce post-trial evidence.
Analysis
The applicant mother’s attempt to introduce surreptitious recordings at trial
52At the outset of trial, the applicant mother sought to introduce into evidence at trial seven surreptitious recordings that had been made of the respondent father, most of which were conversations with the applicant mother. These recordings were made post-separation, mostly in February and March 2018, with some of them stretching into June 2018.
53For reasons discussed with counsel at the hearing, I declined to admit the recordings into evidence at trial.
54First, there are public policy considerations that weigh against admitting the impugned evidence. In my previous decision in Veljanovski v. Veljanovski, a case relied upon counsel for the respondent father in the instant case, I commented on the practice of making surreptitious recordings by parties in family law cases, which practice has often been to referred as “odious” and “repugnant” by the court. 4 In Veljanovski, I expressed my agreement with the observations of Sherr J. in Hameed v. Hameed5 that the surreptitious recording of telephone conversations by parties in family law cases should be strongly discouraged by the courts.
55Such practices offend the privacy interests of the individual and the family, and are the type of “odious practice” that the courts typically seek to discourage in family law proceedings because they are destructive of the maintenance, restructuring, and encouragement of constructive family relationships.6
56Some of the policy concerns for not admitting or severely limiting admission of surreptitious recordings were discussed in practical terms by Pazaratz J. in his decision in Whidden v. Ellwood, as follows:
Parents in custody disputes really need to stop taking photographs and videos of one another during access exchanges.
a. They should stop pretending they're assisting the court by assembling important evidence.
b. The obvious reality is that taking videos is a strategic act of aggression and escalation. The situation never improves when people pull out cameras. Usually it gets worse. Indeed, often that appears to be the intention.
c. Access exchanges in high conflict files are already tough enough for children. Pointing a camera — or multiple cameras — at the interaction merely heightens the child's unease and worry that something bad is expected to happen. That someone they love is about to misbehave. That one parent is trying to get the other parent in trouble.
d. Videos recklessly and maliciously transform an ideally brief, benign transition into a horribly unhappy and frightening experience for the helpless child. The unpleasant confrontation may last only minutes. But the emotional devastation for the child can extend for hours, both before and after the exchange.
e. Talk about spoiling a happy moment. (Again, perhaps that's the intention.)
How do we stop this epidemic of smartphone nonsense in Family Court?
a. Presumably parents only take these videos because they think it will help them win their case. They think it will make the other parent look bad.
b. We need to make it clear to parents that taking videos is not likely to help you win your case. It's more likely to backfire. To cause the judge to worry about your parental judgment.
c. Because taking videos raises doubts about how a loving and caring parent could be so insensitive as to place an innocent child in the middle of a needlessly inflamed and volatile situation.
d. What message is the videographer conveying to the child? "Look how bad your father is!" "I'm going to record this so everyone will see what a horrible mother you have!" "Be careful, the parent you love can't be trusted!"
e. Perhaps the more cynical and prophetical message: "Showtime!"
f. Do children really need to receive such hurtful and destructive messages, at an already tragic time in their lives?
g. When parents routinely pull out their cameras, ready to "click" at the slightest false move -- like gunslingers squaring off at the O.K. Corral — are they doing it out of love for a child? Or hate?
h. No matter what image they hope to record, it can't be as harmful to the child as the fear and apprehension automatically instilled as soon as one parent points a camera at the other.7
57In Hameed, the father included transcripts and audiotapes of telephone calls that he had surreptitiously recorded with the mother and of a telephone conversation that he had with a third party who had supervised his access. He filed this material to argue that the mother had lied in her material when she said that she was not interested in reconciling with him and that the access supervisor did not agree with how the mother described the father’s parenting skills in her affidavit. That evidence was ruled inadmissible by Sherr J., who commented as follows:
Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties worrying about whether the other is secretly taping them. In a constructive family law case, the professionals and the court work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process. …
The court in deciding whether to admit such evidence will need to weigh these policy considerations against its probative value. The party seeking its admission should establish a compelling reason for doing so.8
58In Veljanovski, I followed and applied the dictum of Sherr J. in Hameed, I held that in view of the strong public policy reasons disapproving of surveillance practices in family law matters, I was not convinced that the applicant mother in Veljanovski had established a sufficiently compelling reason to have the fruits of the surveillance admitted into evidence. Accordingly, I allowed the respondent father’s motion to exclude the surveillance evidence and struck out various paragraphs of the applicant mother’s affidavit relating to the surveillance evidence.9
59Further, given the mother’s resort to what I described as the “odious” and “repugnant” practice of video surveillance after the court had already directed the parties to stop recording each other, I held that the mother’s conduct was a “significant factor” in this regard in my subsequent decision to deny the mother her costs of the motion even though she was the successful party on the motion.10
60As well, one of the recordings that the applicant mother here wished to introduce was a conversation between the respondent father and the child Stephen. The child is not a party to the instant proceeding. The courts have generally ruled inadmissible the recordings of third parties.
61For example, in Fattali v. Fattali, a father secretly recorded an interview with the children’s pediatrician. The court ruled that such recordings were inadmissible, and Vogelsang J. offered the following explanation:
To better his case, he attended on the paediatrician … to discuss the administration of the drug to Simon. He secretly taped the interview by concealing [a] recorder on his person. His counsel wished the audio tape to form part of the evidence at the motion. In my view, such forays into the gathering of potential evidence are to be discouraged in the strongest terms. Proceedings involving the best interests of children should not be decided on evidence the product of calculated subterfuge. It does not help the father’s position to be plotting tricks or deceit to advance his cause. [Emphasis added.]11
62Counsel for the applicant mother argued that it was necessary to adduce the recordings so that the court could appreciate the actual tone of voice and language that the respondent father used with applicant mother and, to a lesser extent, the children. In my view, the court did not need to admit multiple samples of “tone.” It is, unfortunately, commonplace in high-conflict litigation that parties speak in angry tones with each other, use profanity-riddled language, and generally are not on their best behaviour. One does not need to admit into evidence surreptitious recordings – and thereby countenance the odious practice of their making – in order to appreciate that parents engaged in high-confliction litigation generally behave very badly with one another. As such, it cannot be said that the contents of the proffered surreptitious recordings “provide necessary assistance in determining the best interests of the children.”12
63Moreover, I rejected the fundamental premise in the submission of the applicant mother that these recordings were fully representative of how the parties dealt with each other, in that, because the applicant mother is the one who is recording the exchange and therefore knows she is being recorded, while the father does not, the mother is able to control her tone and language on the recording and, put colloquially, “play for the audience.” There is an element of inherent unfairness in suggesting that such recordings are truly representative of the dealings between the parties when one party has effectively reserved to herself the right and ability to manipulate how she is presented on the recording. As such, apart from the public policy concerns and other grounds, such recordings are not a reliable representation of both parties.
64On the latter point, in the interests of a more full and fair representation of the parties, I would also note the evidence at trial of Ms. Laurie Lachance, who was the next-door neighbour of the parties when they resided in the matrimonial home together. Ms. Lachance gave evidence of an incident in November 2017, early one morning at about 7:00 or 7:30 a.m., when she could hear Nadia screaming at Bruno. Ms. Lachance said Nadia was going in and out of the house, repeatedly screaming from the driveway that she was “going to leave” and repeatedly using profanities. The evidence of Ms. Lachance was that the episode was extremely upsetting to, especially, her youngest son, whom she described as a person with “low-functioning autism,” to the point where Ms. Lachance had to administer Attivan to her son to try to settle him down. I found Ms. Lachance to be a forthright and credible witness, whose evidence went unscathed in cross-examination. Interestingly, the evidence of Ms. Lachance was that Bruno could not be heard yelling at Nadia; she only heard Nadia screaming at Bruno that day.
65Bottom line, it could not be said that the probative value of these proffered surreptitious recordings outweighed the policy considerations that, in my view, argue strongly for their exclusion, and I excluded them on that basis.
Custody
66By my temporary order dated September 28, 2019, which was made on the basis of an interim partial consent signed by both parties, the court ordered that the applicant mother shall have interim custody of Stephen and Sebastian.
67Nadia now seeks a final order that she have sole custody and primary residence of the children with specified access to Bruno.
68Bruno takes the position that the parties should have joint custody of the two boys with primary residence with Nadia. Bruno submits that there should be an express mandatory provision requiring Nadia to consult with him regarding any decision affecting the health, welfare, or education of the children, but that, in the event of disagreement, Nadia shall have the final decision making authority.
69The OCL report recommended that Nadia should have custody of the two boys, who should continue to reside primarily with their mother.
70In exercising the court’s authority under s. 16(1) of the Divorce Act13 to make an order respecting the custody of and access to the children, I have taken into consideration “only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances,” as mandated by s. 16(8) of the Act, the maximum contact principle enshrined in s. 16(10) of the Act, and the list of factors enumerated in s. 24(1) of the Children’s Law Reform Act,14 which usefully inform the analysis.
71“The overarching principle in carrying out the analysis is that the child’s best interests must be ascertained from the perspective of the child rather than the parents; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child.”15
72Subsection 24(2) of the Children’s Law Reform Act sets out criteria to consider when determining the best interests of the children. These considerations have been adopted when considering an application under s. 16 of the Divorce Act.16
73Subsection 24(2) requires the court to consider all the child’s needs and circumstances, including:
(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.
74The court must decide the best interests of the children on all of the evidence and the appropriate legal principles and must not abandon that decision to an assessor.17 The best interests of the children are not necessarily the same as the wishes of the children or of the parents.18 Rather, the court must consider what is best for the children in the long run.
75Subsection 24(3) permits the court to consider the parents’ past conduct only to the extent that it relates to the parent’s ability to act as a parent.19 A party’s actions that reflect poorly on a party as a spouse may not affect that party's ability to parent.20
76In his closing submissions in support of the claim for joint custody, Mr. Patterson argued that joint custody was appropriate because there were many attempts by the applicant mother to marginalize the role that the respondent father played in the children’s lives. Counsel relied on the decision in Y. v. F.-T., where the trial judge awarded joint custody, in part, because there was evidence that the mother had unilaterally and improperly appointed herself as sole “gatekeeper” to child. The trial judge spoke of the practice of “gatekeeping” in the following terms:
In the early emotional chaos of separation, it is not uncommon for a primary care parent to resist, or otherwise attempt to control access. When such conduct proves persistent and unjustified it is characterized as negative gatekeeping.
Gatekeeping tends to abate over time. As parents transition from intimate relationships to co-parenting relationships, most gain appreciation for the challenges faced by their child, who must grow up between two homes. Thoughtful parents wish to ease those challenges by making the road between their homes easier to travel.
When gatekeeping does not subside, the excluded parent either exits the child's life, or, presses for more time. Both responses carry the potential for harm. Is the child to be effectively abandoned, or, become the trophy to be won in an adult tug of war?21
77The decision of the trial judge was upheld on appeal.22
78In my view, there is no doubt that Nadia has engaged in a pattern of “gatekeeping” but not to the extent evident in Y. v. F.-T.
79I will say that in the days that immediately followed the trial, I found the rationale underlying Mr. Patterson’s argument somewhat attractive given the evidence of “gatekeeping” in this case. However, with the benefit of further consideration, I believe the claim for joint custody must be rejected, for the following reasons.
80“In Canadian law, there is no default position in favour of joint custody, as each case is fact-based and discretion-driven.”23 In considering whether joint custody is appropriate, “the courts have consistently held that there must be a high level of co-operation and communication between the parents if joint custody is to be a viable option consistent with the best interests of the children.”24
81In Kaplanis v. Kaplanis, our Court of Appeal held that in order to grant joint custody, there must be “some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another.”25 Merely “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.”26 The rationale is that the best interests of the child will not be served if the parents are unable to make important decisions concerning the child under a joint custody arrangement.27
82In the instant case, the parties have not demonstrated an ability to problem-solve collaboratively or cooperatively parent so as to support a joint custody arrangement. Indeed, the parties here have grave difficulty communicating with each other in a constructive, respectful, and responsible manner. In my view, that conclusion is fully borne out by the history of the relations between the parties.
83More importantly, I am convinced that an order for joint custody would ultimately serve to create even more conflict between these two parents in what is already a high-conflict case, and that, in turn, will just prove harmful to Stephen and Sebastian.
84There have been many cases where it has been recognized that a joint custody order may actually defeat the child’s best interests. As Pazaratz J. stated in Izyuk v. Bilousov:
In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children – particularly children already exposed to the upset of family breakdown – look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.28
85In my view, those considerations apply with full force to the circumstances of the case before me. I agree with the submission of Ms. Hodgkin that an order for joint custody, even with a provision giving the applicant mother a veto power, is setting up the parties and the children for more conflict.
86On the evidence before me, it is clear that Nadia has been the primary caregiver to the two boys since birth. She made the primary decisions for the children during the marriage. As Bruno candidly acknowledged in his testimony, Nadia has been a good mother to the boys; she loves them very much, and they love her.
87In the end, the only real disposition on custody that will serve the best interests of Stephen and Sebastian is an order that the applicant mother have sole custody of the children.
Access
88As I have said, for more than a year, Bruno’s parenting time with the two boys was limited to six hours per week, with no overnight access. By my order dated September 18, 2019, made on consent, the father’s access was expanded to alternate weekends, with seven hours on Saturday and six hours on Sunday, but no overnights, together with a two-hour, mid-week access visit on Wednesday of every week.
89The position of Nadia at trial actually seeks a reduction in access: she submits the current alternate weekend parenting time should remain in place (but with more restrictions), but the mid-week access on Wednesday nights should be removed.
90The position of Bruno at trial is that he should have parenting time with the children every Wednesday from 5:30 p.m. until 7:30 p.m. and every other weekend from Friday evening at 5:30 p.m. overnight until Sunday at 5:00 p.m. As such, this is not a case where the father claims he should have shared custody. As I have said, Bruno is seeking garden-variety access only.
91The OCL report examined the issue of parenting arrangements at some length. Its reasoning and recommendations are as follows:
discussion:
Ms. Paftali has been the primary care giver to the children since birth. She has made the primary decisions for the children during the marriage, and at current time there does not seem to be issues with her continuing this role.
There needs to be more flexibility with accommodating access between Mr. Paftali and Ms. Paftali to help the children attend events that are important to them. An example of when this was not practiced was when Mr. Paftali refused to allow the children to attend their maternal uncle’s wedding, as it coincided with his access. Mr. Paftali tried to bargain for more access, to which Ms. Paftali did not agree to. Ms. Paftali withheld the children from access on that date in order for the children to attend their maternal uncle’s wedding.
Mr. Paftali stated he has been hesitant in being flexible with access, because he has six hours a week with the children, which he felt was limited for time. Moving forward, both Mr. Paftali and Ms. Paftali should keep in mind that important events may fall outside of the routine access schedule, and that dates and times may need to be changed to allow the children to attend special events. It will be important that both parents give each other enough notice of special events, in order to accommodate access for the children. When possible, each parent should also be mindful not to schedule events during the other parents’ access. Both parents reported they were willing to be flexible moving forward.
Ms. Paftali reported concern that she felt Mr. Paftali may abduct the children. There was a lack of evidence to suggest the children were not safe with Mr. Paftali. CAS has reported they have no current issues pertaining to the children’s safety in regard to either parent. The OCL’s role is not to assess safety.
CAS reported the children could not clarify why they did not want to see their father. CAS further reported Ms. Paftali projected her fears onto the children, as it was felt the children were being directly or indirectly influenced by Ms. Paftali or the maternal grandparents. CAS encouraged Ms. Paftali to tell the children that they were not going to be kidnapped by their father. There was a verification of emotional harm to the children, due to custody access issues between the parents. A family service worker was assigned for ongoing service, as both parents refused to see how they contributed to the conflict. CAS recommended that both parents not exhibit conflict in front of the children.
CAS reported there has been progress as Ms. Paftali has stopped approaching Mr. Paftali’s front door during exchange at the matrimonial home, and parks at the end of the driveway. It was recommended by CAS that exchanges should take place at New Beginnings, a community agency were exchanges can take place. CAS informed that the children spoke positively about Mr. Paftali, and although the children reported they did not want to have overnight visits at Mr. Paftali’s home, they could not provide specific reasons, and they did not inform that Mr. Paftali had done anything wrong.
The children’s interviews were similar with this Clinician, in that the children did not have specific reasons as to why they did not want to have overnight visits with their father, and they had mixed ideas in regard to spending time with their father. This was specifically seen with Sebastian, as it appeared he struggled with his brother’s and mother’s opinions in regard to seeing his father. Both children had positive things to say in regard to Mr. Paftali spending more time with them, in comparison to when their parents lived together. Stephen and Sebastian said Mr. Paftali played with them more. Both children were also able to speak about and describe favourite memories and experiences they had with each parent.
Stephen reported Mr. Paftali may take him from his mother, but he was unsure why he thought this. He said his father never said or did anything to imply he was going to abduct him. Stephen said he felt he did not need more time with his father, but it would make him sad if he did not see him. He reported, in order to consider having overnight visits with Mr. Paftali, “dad needs to be nicer when mom comes to get her stuff”. Sebastian said, “my brother doesn’t want a dad anymore, so I don’t want a dad”. In regard to overnight visits, he said if his mother said it was ok, he would like to sleepover at his father’s house.
Ms. Paftali had concerns in regard to Mr. Paftali’s consumption of alcohol. As per police reports, Mr. Paftali was observed by police to not appear intoxicated when Ms. Paftali called police informing otherwise. Police reported that the odour of alcohol was not detected.
Ms. Paftali also had concerns in regard to Mr. Paftali making threats toward her. In police reports, police viewed text messages between Ms. Paftali and Mr. Paftali where Mr. Paftali wrote, “I will destroy you…I’m going to take your job and everything away from you”. Police stated after viewing additional text messages, “officers determined mom to be the dominant aggressor/initiator”. It would be important for Mr. Paftali and Ms. Paftali to limit contact with each other, other than in regard to the children. The use of a community exchange centre, or an agreed upon site in the community will help to manage this. As each parent has expressed they do not feel they can communicate with each other directly, the use of a tool, such as Our Family Wizard would help manage communication to keep it productive and focused on the children.
Stephen disclosed that Mr. Paftali said he screamed like a girl and called him fat. Stephen said it hurt his feelings. Mr. Paftali has denied that he has made such comments to Stephen. It would be helpful for Mr. Paftali and Stephen to attend counselling together to mend their relationship. Although Mr. Paftali was initially not open to the idea of counselling, he stated he recognizes this would be of benefit moving forward.
Mr. Paftali’s access allows him six hours a week with the children. Ms. Paftali stated she would like the children to have less access to Mr. Paftali. There does not appear to be significant evidence to suggest Mr. Paftali’s access should be reduced. CAS has assessed for safety and there are no concerns at this time for the children to have more time with Mr. Paftali. Increasing access would allow for Mr. Paftali to further develop and foster a relationship with the children.
92The OCL report made the following recommendations:
recommendations:
Custody
- Ms. Paftali shall have sole custody and primary residence of Stephen Paftali and Sebastian Paftali.
Access
- Mr. Paftali shall have access as follows:
a. Every Tuesday and Thursday after school to 8:00 p.m.
i. Drop off can take place at an agreed upon site in the community.
b. Every other weekend, Friday after school to Sunday 6:00 p.m.
i. On PD days, pickups can take place at regular time (end of school day).
ii. Exchanges can take place at an agreed upon site in the community.
- Holidays and special dates
a. Included but not limited to Easter, Thanksgiving, and the Children’s birthdays.
i. Should be shared equally, odd years for Mr. Paftali, even years for Ms. Paftali.
b. March Break
i. Split equally in days for each parent (odd years, Mr. Paftali will have first half; even years, Ms. Paftali will have first half).
ii. Or as agreed upon by the parties.
c. Christmas break
i. Christmas eve to Christmas day at 3:00 p.m. for Ms. Paftali on even years, and odd years Mr. Paftali.
ii. Christmas day 3:00 p.m. to December 26th for Mr. Paftali on even years, and odd years for Ms. Paftali.
iii. Or as agreed upon by the parties.
d. Mother’s day
i. If the date falls during Mr. Paftali’s access, then Ms. Paftali’s access will begin at 10:00 a.m.
e. Father’s day
i. If the date falls during Ms. Paftali’s access, then Mr. Paftali’s access will be 10:00 a.m. to 6:00 p.m.
f. Vacation during summer
i. One week in July for each parent, or as the parties decide.
ii. One week in August for each parent, or as the parties decide.
iii. Each parent will provide contact information to the non-access parent. Access parent will provide means for this communication to take place.
- Consents to be signed by Ms. Paftali for Mr. Paftali to have access to health and education records.
Communication between parents
- Communication between parents should take place using an online tool such as, Our Family Wizard.
Supports
Counselling for Mr. Paftali for ongoing support.
Counselling for Ms. Paftali for ongoing support.
Joint counselling for Mr. Paftali and Stephen.
93The applicant mother objected to the OCL report. She argued, for a variety of reasons, that the OCL report is not valid and its recommendations should not be implemented.
94First, the applicant mother argued that the OCL report was out-dated. The OCL report was released on February 11, 2019. The trial in this matter commenced on November 25, 2019. I do not accept that the report was outdated. Practically speaking, to suggest that little or no weight should be given to an OCL report that was produced only nine months before trial would result in the wholesale exclusion of many OCL reports from any consideration and would produce enormous pressures on the resources of the OCL.
95The applicant mother also submitted that the OCL report was out-dated in the sense that the respondent father had changed residences in the interim and was no longer living in the matrimonial home. This point was pursued at some length in the cross-examination of the OCL clinician at trial by counsel for the applicant. Ms. Lakshminarayan tried to explain in her evidence that the physical location is not the relevant factor when assessing the parenting abilities of the respondent father, how the children interact with their father, etc. I agree with her explanation.
96The applicant mother also challenged the integrity of the OCL report and suggested that the recommendations were tainted because, she submitted, that when the children returned for their second interview with the clinician, the respondent father was listening at the door when Stephen was being interviewed and he then told Sebastian “what to say.” The mother’s challenged on this ground is based on the hearsay evidence of Sebastian.
97Even giving that hearsay evidence weight, I am not persuaded that it has been established that the respondent father “coached” Sebastian or that, in any event, the OCL report should be disregarded on that basis. Again, the OCL clinician was subjected to cross-examination at some length on the point, and Ms. Lakshminarayan expressly rejected the suggestion that the respondent father would be able to hear her interview with the child. She maintained that the office door is thick, it takes place in a confidential part of the office, and no one would be able to hear the conversation from outside in the hall.
98Further, the evidence of Ms. Lakshminarayan is that she found the second interview of Sebastian to be consistent with her first interview of him. She observed that both interviews were “consistently inconsistent.” It is clear from the evidence of Ms. Lakshminarayan that there was no evidence of tampering.
99Moreover, even if one assumes for the purposes of argument, that the respondent father somehow attempted to improperly tamper with Sebastian’s second interview, that would still leave Sebastian’s first interview and both Stephen’s first and second interview untainted. In my view, there is no merit to the allegation that the OCL report is invalid because of any supposed tampering.
100The applicant mother submitted that one of the reasons that the respondent father should not be given garden-variety access is because there is a real risk that the respondent father will abduct the two boys and return to Albania with the children. One of the concerns of the applicant mother is that Albania is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
101The OCL report noted the mother’s concern that she “felt Mr. Paftali may abduct the children. There was a lack of evidence to suggest the children were not safe with Mr. Paftali.” I agree with the OCL report in that regard. Apart from the mother’s subjective belief or fear, there is a paucity of objective evidence, if any, in the record before me that would give credence to the mother’s professed fear.
102Leaving aside the vehement denials of the respondent father when that prospect was put to him and pressed in cross-examination, I would note the history of the upbringing of the respondent father, the central narrative of which was his escape from Albania. The evidence of the respondent father indicates that his family experienced hardships and very difficult circumstances living in that war-torn country. There is no evidence before the court that indicates the father harbours a hidden desire to return to that country.
103Counsel for the applicant mother pointed to Exhibit no. 3, being a copy of a text message from Bruno to Nadia, as providing some objective support for the mother’s fears. The text message in question reads: “My dad it’s in hospital it’s not doing good!! I’m taking the kids to see him u like it or not!!”
104I note that at the time Bruno sent the text message, his parents were living in Italy. Indeed, at present, his parents continue to live in Italy, where they have resided for many years. Bruno’s evidence is that at the time he sent the text, his father was in very poor health. The circumstances appeared dire at that point, and Bruno was upset. He wanted to be able to have his children see his father lest he pass away.
105In any event, whatever the text message may say about Italy, it says nothing about Albania. I take judicial notice of the fact that Italy is a signatory to the Hague Convention.
106In any event, there is simply no logical connection between Nadia’s subjective fear of Bruno absconding to Albania with the children and her refusal to permit the father to have overnight access with the children. Even assuming Bruno had the means and the intent to abduct the children and flee to Albania, he would not need overnight access to accomplish that goal. That is, for example, for more than a year during this proceeding, Bruno had unsupervised access every Saturday from 12:00 p.m. until 6:00 p.m. If one were minded to do so, six hours of unsupervised access would provide a window of opportunity; and yet there is no evidence that Bruno ever made any attempt to abscond to Albania with the children.
107The applicant mother argued that the respondent father ought not to have expanded or overnight access because it is said he is incapable of putting the children’s interests before his own.
108I preface my consideration of that argument by noting that it was clear that each of the respondent father and the applicant mother displayed great difficulty, if not an inability, to get past certain realities. It is clear that Nadia has difficulty getting past the fact that Bruno was unfaithful to her in the marriage. His infidelity was a source of great hurt and anger for Nadia. That was reflected in some of the parenting decisions she made and, in part, some of the conduct of this trial. The fact of the infidelity, which Bruno admitted, was a point that was pressed at length in the cross-examination of Bruno. Attempting to capture a recorded “confession” from Bruno appeared to be Nadia’s motive behind one of the surreptitious recordings that she sought to admit at trial.
109For Bruno’s part, he had difficulty getting past the fact that this litigation began with Nadia’s attempt to bring a motion without any notice to him to secure custody of his two boys, which ultimately led to his access to his children being restricted to only six hours a week for more than a year. Like Nadia and the infidelity, the reality of his limited access also impacted Bruno’s decision-making.
110Thus, there is no doubt that, as referenced in the OCL report, the incident where Bruno refused to permit the children to attend the wedding of Nadia’s brother because the event fell within his six-hour window of access on a Saturday is a good example of Bruno making decisions that gave primacy to his own interests over those of the children. (In fairness, I should note that Nadia then cancelled Bruno’s access on that day in any event.)
111That is certainly not the only example of such conduct by Bruno. There was also the incident where Bruno did not want to allow Sebastian to attend his baseball team’s “photograph day” because, again, the event fell on his six-hour access time on Saturday. Other valid examples were canvassed in Ms. Hodgkin’s closing submissions.
112To be fair, however, Nadia has also demonstrated at times that she too has some difficulty putting the interests of the children ahead of her own. The only example I will cite for present purposes – because, again, the purpose of this decision is not to provide a running critique of the decisions made by each parent – involves Stephen’s anxiety at bedtime. The evidence at trial indicates that Stephen has some anxiety that particularly manifests itself when the child is going to bed for the night. Apparently, he is concerned that his father may abduct him; he regularly calls out to his mother to make sure she is present within the home. As the OCL report noted: “Stephen reported Mr. Paftali may take him from his mother, but he was unsure why he thought this.”
113Both the applicant mother and the maternal grandmother were questioned as to what type of things are said or assurances given to Stephen when he voices that concern, and both Nadia and her mother gave, essentially, the same evidence. They each indicated that they both attempt to re-assure Stephen that the doors and windows are locked and that he is safe.
114It is telling, however, that both Nadia and her mother testified that they do not attempt to remove his concerns by saying anything like, “oh Stephen, your father would never try to do that.” Each of them agreed that they offer no such re-assurances to Stephen.
115I am deeply troubled by that evidence. Leaving the grandmother aside, it indicates to me that the applicant mother was presented with an opportunity to relieve the child’s concern and disabuse the child of the notion that his father presents a threat to his well-being – but, for her own reasons, she has chosen not to take that opportunity. Rather than attempt to remove the root cause of the child’s concern, the mother provides messaging to the child that while his father remains a threat to him, she and the grandparents have taken every step to protect him against the threat of his father. That a parent, or grandparent, should continue to allow a child to harbour such a fear of their own father, when they have the power to disabuse the child of the concern, is, as I have said, very troubling to me. That it should come from two people who have dedicated their careers to teaching, a profession devoted to the service of the best interests of children, is, difficult to comprehend.
116The applicant mother submitted that the respondent father has exposed the two children to adult conflict. Again, I accept Ms. Hodgkin’s submissions that the evidence establishes that the father has exposed the children to adult conflict. It is plain that in the months following the parents’ separation, the respondent father would often make Stephen the conduit of communication between himself and the children’s mother. Another example was the incident where Bruno passed his cellphone to Stephen to speak with his mother, a cellphone which displayed the screen name “Pure Evil” for the mother. Another example is the joking references made by the respondent father to the children that the supervised access centre was some type of “prison.”
117But again, it is not only the respondent father who has exposed the children to adult conflict. When the applicant mother and her father drove to the matrimonial home for the purposes of division of contents, for some inexplicable reason they apparently believed that it would be acceptable for Stephen to accompany them there.
118There was also the evidence of the neighbour Ms. Lachance, who testified that there was an incident in June 2018 when the applicant mother attended at the matrimonial home with her father and the children, and the mother had words with Ms. Lachance, in the course of which both the applicant mother and the grandfather took their cellphones out and started to take video recordings of Ms. Lachance – without her permission. The altercation was such that Ms. Lachance went to call the police, but by the time the police arrived, the applicant mother and her father had left. The evidence of Ms. Lachance was that the entire episode was witnessed by the children, who were seated in the back of the van. I accept the evidence of Ms. Lachance.
119I am also very much concerned about the applicant mother’s admission to me about how she made one of the surreptitious recordings that she sought to introduce as evidence at trial – which was a telephone conversation between Stephen and his father over a phone call received from his school. When I asked the applicant mother how the recording of the conversation was made, she explained to me that the respondent father had telephoned her parents’ home in order to speak with Stephen, and the mother placed the call on speakerphone and then took her own cellphone and recorded the conversation between Stephen and his father. When I specifically asked the applicant mother whether Stephen was perhaps in another room apart from his mother, she indicated that was not the case and she admitted to me that Stephen was standing right beside her as she recorded the conversation.
120Apart from the fact that s. 184(1) of the Criminal Code29 makes it a criminal offence to knowingly intercept a private communication by means of any mechanical or acoustic device, my greater concern for present purposes is how the applicant mother was apparently oblivious to the fact that such actions place her child directly in the throes of her adult conflict with the respondent father.
121I have tried to imagine, from the perspective of Stephen, the impact that his mother’s actions on that occasion incident must have had on him. I have tried to think of what message(s) Stephen received from his mother on that occasion.
122In my view, the messages that such parental conduct sends to a child in those circumstances were aptly described by Trimble J. in Maharaj v. Wilfred-Jacob, ironically, a case relied upon by the applicant mother herself, and include: “I don’t trust the other parent. You should not trust the other parent. … You should record everything the parent does. … Nobody loves you like I do. Your other parent doesn’t love you.”30
123In sum, there is clear evidence that the applicant mother has immersed these children in the adult conflict every bit as much as the respondent father has.
124In considering the question of the appropriate parenting time of the respondent father, I have also considered, of course, the directive under s. 16(10) of the Divorce Act and the maximum contact principle. Subsection 16(10) requires the court to “give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child.”
125There can be no doubt that, as Curtis J. observed in Peers v. Poupore, “[i]t is fundamental to the identity of a child to be able to love and accept love from each available parent.”31 As Ms. Hodgkin conceded in her closing submissions, there “is no doubt that [the respondent father] loves his children more than anything else in the world.” As well, in my view, as reflected in the OCL report, and the notes of New Beginnings staff recording access exchanges, both children love their father and wish to spend time with him.
126Even the applicant mother conceded in cross-examination that the respondent father has never cancelled an access visit with the children; he has never not shown up for an access visit; she believes both boys love their father; she believes the father loves them; she believes their father would never hurt them; and she wants the boys to have a good relationship with their father.
127Subsection 16(10) of the Divorce Act also directs the court to “take into consideration the willingness of the person for whom custody is sought to facilitate such contact.” This goes to the issue of each parent’s willingness to facilitate maximum contact of the children with the other parent.
128I have no concerns with the respondent father’s willingness to facilitate maximum contact of the children with their mother. For example, he concedes in this litigation that the children’s primary residence should be with the applicant mother.
129However, I do have a concern with the applicant mother’s unwillingness to facilitate maximum contact of the children with their father. I have already spoken of my concern regarding the applicant mother’s tendency to assume a “gatekeeping” role regarding the children’s access to their father.
130As well, there are many instances in the evidence of the applicant mother where she appears to leave it up to the children as to whether they would like to attend for access visits with their father. For example, apparently the applicant mother thought it appropriate that the decision as to whether Sebastian should attend his scheduled access visit with his father or attend for his baseball team’s “photograph day” is something that, essentially, should be left to Sebastian’s decisions. Those decisions are not appropriate for a young boy of eight years of age. The evidence concerning the access visit of November 16, 2019 – just the week before the trial commenced – is to the same effect.
131On this point, I would remind the applicant mother that she is under a legal duty to promote Stephen and Sebastian’s access with the respondent father. The Ontario Court of Appeal has made it clear that every parent has a positive obligation to ensure that a child continues to have access to the other parent.
132In Godard v. Godard, there was a court order providing the father with access every second weekend to the parties’ 12-year-old daughter. After having been denied any contact with his daughter for some time, the father brought a contempt motion against the mother. The motion judge found the mother in contempt of the access order, finding that the mother had “effectively abdicated her parental authority on the issue of access.”32
133On appeal, the Court of Appeal upheld the motion judge’s finding of contempt and held that:
Although a child’s wishes, particularly the wishes of a child of [the 12-year-old daughter’s] age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests a parent cannot leave the decision to comply with the access order up to the child. As stated by the motion judge, Ontario courts have held consistently that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order”: Quaresma v. Bathurst, [2008] O.J. NO. 4734 (Ont. S.C.J.) at para.8. See also Campo v. Campo, 2015 ONSC 1349 (Ont. S.C.J.); Stuyt v. Stuyt,2009 43948 (ON SC), [2009 CarswellOnt 3432 (Ont. S.C.J.)] 2009 43948; Stuyt v. Stuyt, [2009 CarswellOnt 3432 (Ont. S.C.J.)] 2009 43948; and Hatcher v. Hatcher, 2009 14789 (ON SC), [2009] O.J. No. 1343 (Ont. S.C.J.).
No doubt, it may be difficult to comply with an access order, especially as children get older. Parents are not required to do the impossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can. In this case, the motion judge inferred deliberate and wilful disobedience of the order from the appellant’s failure to do all that she reasonably could: she failed to “take concrete measures to apply normal parental authority to have the child comply with the access order.”33
134In the instant case, I find that the applicant mother certainly did not do all that she reasonably could in order to comply with the access orders that had been made by the court to facilitate the respondent father’s access time with the children. That is a significant consideration for me in my analysis.
135That said, on the question of compliance with court orders, I must also state that I have some concern with the actions of the respondent father in terms of his consumption of alcohol at or about the time of his access visits with the children. It will be remembered that the order of the court dated March 23, 2018, granted unsupervised access to the respondent father every Saturday from 12:00 p.m. until 6:00 p.m., on condition that he “abstain from alcohol consumption prior to and during access.”34
136There is, in the evidence before me, some indications that the respondent father may not have fully complied with the March 23, 2018, abstinence order.
137I appreciate the evidence of the applicant mother that she detected the smell of alcohol on the respondent father’s breath during various access exchanges. There is evidence that she reported her concerns to the police on at least one occasion, and on that occasion the police could not verify her concerns. The applicant mother maintains that by the time the police attended on the scene, the effects of alcohol on the person of the respondent father would not have been discernable.
138There is also evidence of the respondent father’s purchase of alcohol. The banking records of the parties were produced prior to trial, and in cross-examination of the respondent father at trial, counsel for the applicant mother successfully demonstrated from the evidence of the father’s bank statements and debit purchase transactions that he regularly attended at the Beer Store to make purchases of beer. Certainly, the frequency of such purchases raised some question in my mind. There were several instances where the respondent father made purchases at the Beer Store multiple times per week. I well appreciate that the mere fact of the record of purchases does not, in itself, establish that the respondent father had in fact consumed alcohol during or immediately preceding his access visits with the children. However, the evidence raises a concern with me.
139Moreover, there is also evidence of specific events, such as the birthday celebration that occurred at Vito’s restaurant in Walkerville. The (hearsay) evidence from Sebastian is that his father consumed two glasses of wine during the birthday celebration and access visit – and that would constitute a breach of the abstinence order of March 23, 2018. The respondent father denied consuming alcohol on that occasion.
140The state of the evidence before me does not permit conclusive findings of fact on this point. I simply say that I am concerned about the question of the respondent father’s consumption of alcohol during or immediately preceding his access visits with the children. In the same vein, if established, I am also very concerned that the respondent father may have breached a court order that he abstain from the consumption of alcohol for the purposes of access visits.
141For all of these reasons, I am persuaded that it is in the best interests of the children that their father’s parenting time with the children should be increased from its present level. I certainly agree with the OCL report that “[t]here does not appear to be significant evidence to suggest Mr. Paftali’s access should be reduced.”
142In my view, having regard for the totality of the evidence before me, I find that it is in the best interests of the children that the respondent father should have the limited garden-variety parenting time that he seeks in this proceeding. In this regard, I note that the respondent father is not asking for, and I am not granting, the extent of the parenting time recommended by the OCL report, which contemplates two mid-week access periods of some four-hours’ duration.
143I find the following order providing for the parenting time of the respondent father with Stephen and Sebastian is in the children’s best interests:
The respondent father shall have parenting time with the children every Wednesday from 5:30 p.m. until 7:30 p.m. and every other weekend from Friday evening at 5:30 p.m. overnight until Sunday at 5:00 p.m.
Transition
144Having said that, I recognize that the parenting plan of the respondent father, which I have found to be in the best interests of the children, contemplates two overnight access visits on alternate weekends, and the reality is that these children have not had any overnights with their father since the parties’ physical separation in 2018.
145As such, it is obviously not in the best interests of the children that the overnight access with their father should commence, “cold turkey,” next week.
146Rather, in my view, a gradual transition period is needed here.
147Accordingly, in my view, the appropriate disposition here is to require the parties to work towards implementing the garden-variety, overnight access that I have ordered within six months. That is, as of March 1, 2021, the respondent father should have parenting time in accordance with my disposition above.
148That said, I should like to have the benefit of the parties’ further input by way of written submissions setting out their views as to the particulars of the interim schedule by which the children should transition from their current access schedule to the access schedule that I have ordered above.
149Accordingly, each of the parties should provide, within three weeks, that is, by Friday, September 25, 2020, their respective proposals for the gradual transition plan to increase the children’s parenting time from its current state to the state I have ordered above as of March 1, 2021, following which I intend on issuing a further brief endorsement on the question of the gradual transition plan to be followed.
Holidays
150Given my disposition of the question of the respondent father’s parenting time, requiring the parties to submit their respective plans for the gradual transition of the respondent father’s parenting time, I believe it is prudent to defer final consideration of the holiday schedule.
151To that end, I invite the parties’ further written submissions as to what the holiday schedule should look like in view of my decision here.
152Having said that, I note the holiday access schedule proposed by the applicant mother, and I would simply say that, in my view, one would be hard-pressed to conceive of a more one-sided, lop-sided, unequal, and unfair holiday access schedule than that proposed here by the applicant mother.
153In my view, the proposed holiday schedule proposed by the applicant mother is a prime example of the type of “gatekeeping” role regarding the children’s access to their father that the applicant mother has attempted to assume in this case.
154As such, what I can say is that I agree with the submissions of Mr. Patterson at trial that to give the applicant mother holiday access to, essentially, all of the major holidays signals to the children that their father is very much the secondary parent, that his parenting time with them is less important, and that his time with the children on those important dates is not as deserving as that of the applicant mother. I can say to the parties that I will not be sending that message to those children.
155What I can also say to the applicant mother is that the eventual order for holiday access that I will make in this case will not be so one-sided, lop-sided, or unfair so as to require that, for example, the two boys will be spending all of both Christmas Eve day and Christmas day, as well as the entire second week of the Christmas Break, with the applicant mother and her family. That will simply not be happening. The family should make no such travel arrangements for the second week of the Christmas Break in that regard.
156As such, I would respectfully suggest that the applicant mother may wish to submit for my consideration a more balanced, even-handed proposal for holiday access than the one submitted at trial.
Communication issues
157I have already referred to the communication problems between the applicant mother and respondent father. I think it fair to say that both parties at trial recognized in their evidence that they were each at fault. Once more, this is not a one-sided problem.
158The court had previously made an interim order that the parties here were to communicate using only the Our Family Wizard communication protocol (see para. 5 of the interim order dated September 18, 2019). During closing submissions, I raised with counsel the need for the parties to renew their commitment to using the Our Family Wizard program for communication purposes. I appreciate there may have been some initial difficulties with the respondent father getting his own account set up; however, whatever the difficulty, both parties at trial gave their commitment to using the program.
159In accordance with my direction, I received post-trial communication, by way of a letter from Mr. Patterson dated January 16, 2020, that the respondent father’s account with Our Family Wizard is functional, and the parties were now able to communicate through that program.
160There shall be an order to that effect.
Child support
161As flagged above, the parties have a dispute over what Bruno’s income should be for the purposes of child support in 2018.
162The position of Bruno is that he should pay table child support in the amount of $1,038 per month based on his 2018 employment income of $68,164.68.
163That amount is consistent with the particulars of child support ordered by Campbell J. in his interim order dated April 5, 2019, which was made on consent of the parties.
164The position of Nadia is that she consented to the April 2019 interim order based upon Bruno’s statement of income and production of his T-4 information slip for the year. She says that, subsequently, upon receipt of Bruno’s income tax return and notice of assessment for the 2018 year, it was learned that Bruno had withdrawn an additional $5,700 of RRSP income in 2018. Nadia submits that the additional $5,700 must be included in Bruno’s 2018 income for the purposes of calculating child support and, on that basis, she maintains that Bruno therefore underpaid child support from the effective commencement date of the interim order (April 1, 2019) in the amount of $107 per month. Extrapolating the claim advanced on behalf of Nadia at trial, the total alleged underpayment in child support for the 17-month period from April 1, 2019, to September 1, 2020, amounts to $1,819 in total ($107/mo. x 17 mos.).
165I am not inclined to interfere with the parties’ consent order.
166In my view, especially in the context of high-conflict litigation, there should be a primacy placed on the interest of finality in litigation. If the parties came to a resolution of an issue, then, absent extraordinary circumstances, their resolution of the issue should be respected and accorded some finality. Otherwise, if parties are able to set aside court orders to which they themselves previously consented to, based merely on their own assertion that they subsequently gained a fuller appreciation of the facts than they possessed when they entered into a binding consent order, there would be little finality to litigation. And that does a particular disservice in the context of high-conflict family litigation, where the best interests of children are ultimately imperilled.
167In the instant case, it certainly cannot be said that the applicant mother was not aware of the larger question (which she herself has raised) of the respondent father’s alleged practice of withdrawing amounts from this RRSP account in order to, she would say, supplement his income. But that cuts both ways. If the applicant mother maintains that RRSP withdrawals were a regular practice of the respondent father, then, in my view, it does not lie in her mouth to say that she did not think of inquiring about whether there was any RRSP withdrawals in 2018 before she agreed to finalize the 2018 income and child support amounts and enter into a binding consent order, and that it took her completely aback when she subsequently learned that he made an RRSP withdrawal in 2018. It is the applicant mother who alleges that the RRSP withdrawals were a regular practice for the respondent father. On her own account, it cannot be said that she had no inkling of the issue. It would have been a simple matter for her, in negotiating the consent order for the 2018 child support amounts, for her to reserve her rights in that regard until production of the father’s notice of assessment was made. She evidently did not require that stipulation. There are many reasons why parties enter into a contract or consent order, and those factors will never be known to a court in the regular course. It is not for the court to attempt to retroactively undo the agreement that the parties made for themselves.
168In any event, I must consider what the “fairest determination” of the respondent father’s income should be for child support purposes. I well appreciate that our Court of Appeal has held that RRSP income is “presumptively part of a spouse’s income for child support purposes.”35 Section s. 16 of the Federal Child Support Guidelines36 provides that a person’s annual income for child support purposes is determined using the sources of income set out under the heading “Total income” on the T1 tax form, and RRSP income is included as part of “Total income” on the T1 form.37
169However, the inclusion of RRSP withdrawals is not mandatory, and the court has the discretion in appropriate circumstances to do otherwise. Subsection 17(1) of the Guidelines provides this flexibility:
If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. [Emphasis added.]
170The evidence in the instant case is that the respondent father used the RRSP withdrawal in 2018 to cover his arrears of child support, his lawyer’s fees incurred in connection with this family litigation, and to service debt.
171It must also be remembered that in January 2018, Nadia left the matrimonial home and went to live with the children at her parents’ home. There is no evidence that she was made to contribute significantly to the costs of maintaining her parents’ home. On the other hand, as I have said, it is common ground that Bruno paid all the expenses related to the matrimonial home from February 2018 until August 1, 2019, including the mortgage, property insurance, and property taxes. In particular, the mortgage payments were $637.76 per month. In short, Bruno incurred expenses maintaining the parties’ matrimonial home, and Nadia enjoyed the benefit of decreased expenses while living in her parents’ home.
172I am satisfied that the RRSP withdrawal was not used for everyday expenses or to enhance the lifestyle of the respondent father. In Ludmer v. Ludmer, the Court of Appeal upheld the trial judge’s decision to exclude both parties’ RRSP proceeds from the calculation of their income for support purposes, and the Court of Appeal noted that the evidence indicated that the evidence indicated that the wife used her RRSP “proceeds primarily to finance this costly litigation, not to enhance her lifestyle.”38
173Moreover, the evidence of the respondent father is that he has exhausted his RRSP account and that his union is not supporting the RRSP contributions in the future.
174As a result, I would dismiss the claim of the applicant mother on this point. I find that the fairest determination of the respondent father’s income for 2018 is to use his Line 101 income of $68,164.68. Accordingly, the child support obligation of the respondent father for the year 2018 shall be fixed in the amount of $1,038 per month based on his annual income of $68,164.68.
The applicant mother’s attempt to adduce post-trial evidence
175By notice of motion filed with the court on March 3, 2020, made returnable April 17, 2020, the applicant mother brought a motion seeking, inter alia, leave to introduce “new evidence for the purpose of trial” following the conclusion of the hearing of the evidence at trial.39
176As I say, that motion was filed with the court on March 3, 2020. Twelve days later, on March 15, 2020, the Office of the Chief Justice issued a Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings, which advised that in order to protect the health and safety of all court users and to help contain the spread of the 2019 novel coronavirus (COVID-19), the Superior Court of Justice was suspending in-person hearings, effective Tuesday, March 17, 2020, and until further notice. An exception was made for certain matters deemed to be urgent.
177Section A of the Notice to the Profession described those exceptional “urgent and emergency” family law matters that were permitted to be heard during the suspension of regular court operations and provided that:
Only urgent family law events as determined by the presiding justice, or events that are required to be heard by statute will be heard during this emergency period, including:
a. requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
b. urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;
c. dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order;
d. in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings. [Emphasis in original.]
178In my view, the applicant mother’s motion clearly did not qualify as an “urgent and emergency” matter for the purposes of the Notice to the Profession. As such, the motion was not one that, in the early months of the court’s reaction to the COVID-19 pandemic, could be heard.
179However, as the court continued to expand the scope of its operations over this past spring, increasing the type of matters that could be realistically addressed during the COVID-19 pandemic, and ever mindful of both the need to provide the parties in this case with a determination of their differences and the provisions of s. 123(5)(a) of the Courts of Justice Act, I concluded that the applicant’s motion was capable of being heard in writing, in conjunction with the release of these reasons for judgment.40 As such, I have determined the applicant mother’s motion on the basis of the written material filed.
180The various factors that should inform the test for considering the introduction of fresh evidence before a decision is rendered were extensively canvassed by Nakatsuru J. in His Honour’s decision in Brasseur v. York, as follows:
- The Test for the Introduction of Fresh Evidence before a Decision is Made
The test for allowing fresh evidence on appeal is stricter than at trial. This makes sense since the admission of fresh evidence on appeal overturns a final judgment and a new trial can potentially be ordered. The need for finality in this context is a paramount consideration: R. v. Palmer (1979), 1979 8 (SCC), [1980] 1 S.C.R. 759 (S.C.C.).
Equally, where a case has been decided and judgment entered, the need for finality usually trumps other considerations. Thus, to re-open a trial under rule 59.06(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, after judgment or other order has been issued and entered is exceptional with a number of factors being considered: Tsaoussis (Litigation Guardian of) v. Baetz (1998), 1998 5454 (ON CA), 41 O.R. (3d) 257 (Ont. C.A.).
However, when the matter is yet with the judge of first instance, (at least in civil matters), the test for the admission of fresh evidence is less stringent. This is so even where the judge has already decided the case, but before formal judgment is entered. In this circumstance, it has been held that a two-prong test must be met: (1) would the evidence if presented at trial, probably have changed the result; and (2) could the evidence have been obtained before trial by the exercise of reasonable diligence?
This was the conclusion of Grant J. in Scott v. Cook, 1970 331 (ON SC), [1970] 2 O.R. 769 (Ont. H.C.), after he had canvassed a number of authorities. Justice Grant referred to some of the possible reasons why this would be the case:
It seems, therefore, that the rule pertaining to the right of a trial Judge to open up a case and consider new or fresh evidence after the close of the trial but before judgment is entered is less stringent than the principle governing an application to adduce new or further evidence before an appellate Court. While there is not too much indication in the authorities as to the reasons for such difference, the following is a brief resume of what the various Courts have said in this respect:
(1) The trial Judge should have unfettered discretion in this matter so as to ensure that a miscarriage of justice does not occur;
(2) before entry of a judgment, the trial Judge is in a better position to exercise that discretion than is an appellate Court. The trial Judge knows the factors in the case that influenced his decision and can more readily determine the weight that should be given to the new evidence offered;
(3) the authorities indicate that a trial Judge can always reconsider his decision until the judgment is drawn up and entered;
(4) the trial Judge is the one in the best position to judge the bearing of the new or further evidence upon the case in light of the evidence already heard;
(5) once a litigant has obtained a judgment, he is entitled not to be deprived of it without very solid grounds.
The Supreme Court of Canada in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 (S.C.C.), dealt with a decision made by a trial judge who had used the test set out in Scott v. Cook. The trial had been decided but formal judgment had not yet been entered. The trial judge had declined to admit the fresh evidence. The Ontario Court of Appeal reversed the trial judge's decision and admitted the fresh evidence. The Supreme Court of Canada upheld the trial judge's decision, found he made no error in principle, and decided that appellate deference should have been afforded. Major J. noted that appellate courts should defer to the trial judge who is in the best position to decide whether, at the expense of finality, fairness required the trial be reopened. Major J. further commented that this discretion should be exercised sparingly and with the greatest care so that fraud and abuses of the court's process do not happen.
The reasons for this caution were well-expressed in Risorto v. State Farm Mutual Automobile Insurance Co. (2009), 70 C.P.C. (6th) 390 (Ont. Div. Ct.) at paras. 34-36.
More recently, in the case of Mehedi v. 2057161 Ontario Inc., 2015 ONCA 670 (Ont. C.A.), Lauwers J.A. has further expanded upon the test found in Sagaz. He explained at para. 20:
In my view, properly understood, the test in Sagaz goes beyond the two questions of whether the new evidence, if presented at trial, would probably have changed the result, and whether the evidence could have been obtained before trial by the exercise of reasonable diligence. It includes considerations of finality, the apparent cogency of the evidence, delay, fairness and prejudice, factors that were articulated by this court in its decision in Baetz. The error in this case was not in the motion judge's decision to apply Sagaz rather than Baetz, but in his application of the test, as I have already described. In this case, the new evidence meets both the Baetz and the Sagaz tests for re-opening a trial assuming there is any real distinction between the two.
I will apply these considerations in the case at bar. But this case is also different from these authorities in a significant way. I had not yet decided the case before the motion to introduce fresh evidence was made. When a decision is made, greater caution is needed. As explicitly recognized in Sagaz, where a decision has been released but formal judgment not yet entered, a litigant who comes to know of the effect of the decision, may try to disturb that judgment or to reconstruct a disfavoured case by putting forth new evidence. This potential for abuse must be discouraged.
However, when a case is yet undecided, the balance may tilt more towards fairness and truth-seeking rather than finality. This has been recognized in the authorities that have dealt with motions to introduce fresh evidence before a judge has rendered a decision. These authorities have generally held that the threshold required in the first question of Sagaz is loosened: Carleton Condominium Corporation No. 116 v. Sennek, 2017 ONSC 5016 (Ont. S.C.J.); Varco Canada Ltd. v. Pason Systems Corp., 2011 FC 467 (F.C.); Levant v. Day, 2017 ONSC 5988 (Ont. S.C.J.).
This different approach to the first prong of the test was emphasized by Lauwers J. (as he was then) in Jackson v. Vaughan (City), 2009 CarswellOnt 152 (Ont. S.C.J.) at paras. 22-23
It seems to me intuitive that where a court has not yet reached a conclusion on the matter to be addressed by the fresh evidence the standard ought to be somewhat relaxed, although I am mindful of the need to avoid never ending evidence … Given the current state of my deliberations I have decided to exercise my discretion in favour of admitting the fresh evidence. I cannot say that it will likely be conclusive of the issue of vagueness, that it would probably change the result, or even that it would probably have an important influence on the result, but I can say that it may have an influence on the result.
In my opinion, where a decision has not yet been rendered, the need for finality does not require the evidence to have "probably" changed the result if it had been presented at trial. I emphasize that no decision has yet been made. There is no "result" to speak of. The judge may be at a very preliminary stage of adjudicating the case in their mind. In these circumstances, to have a test that makes reference to a likelihood that the fresh evidence could have affected the result is premature if not illogical. Furthermore, when the parties do not know the result, any dangers associated with permitting parties to present fresh evidence is not as acute. Thus, in my view, provided a judge finds it in the interests of justice to do so, the judge may properly exercise the discretion to receive fresh evidence.
That being said, the proffered evidence must still be relevant and cogent. The need for orderly and efficient litigation demands that such motions remain exceptional.
The degree of cogency required to pass the threshold will depend on the circumstances. For instance, if the added delay, cost, or complexity of the proceedings will likely substantially increase due to such a motion, it may require increased probative value of the evidence. Or, if the opposing party will suffer prejudice due its admission, this may be a reason to require the evidence be such that the denial of its admission could work a clear miscarriage of justice. On the other hand, when countervailing factors are not significant, the truth-seeking interest may require admission even though the fresh evidence does no more than confirm or corroborate other evidence. A trial or application judge hearing the motion will be in the best position to balance the various factors.41
181The other perspective that I would add to the comprehensive analysis offered by Nakatsuru J. in Brasseur v. York is that, in a family proceeding, regard must also be had to the provisions of subrules 2(2) and (3) of the Family Law Rules,42 which provide that:
primary objective
(2) The primary objective of these rules is to enable the court to deal with cases justly.
dealing with cases justly
(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
182In my view, there are two distinct components of the applicant mother’s request to re-open the case and adduce fresh evidence before reasons for judgment are delivered.
183The first and more straight-forward aspect of the motion is the request that the respondent father should deliver an updated Form 35.1: Affidavit in Support of a Claim for Custody or Access. The evidence before the court on the motion is that the living arrangements of the respondent father have changed since the conclusion of the hearing at trial and, in particular, that he has moved into the home of his former neighbour.
184If that is the case, that is clearly new evidence of material circumstances that did not exist at trial. Given especially my transitional approach to the question of increased access for the respondent father, it is appropriate that the respondent father provide current evidence as to his living arrangements. Indeed, that applies to both parties.
185I would admit that aspect of the proffered new evidence and order that both parties provide an updated Form 35.1: Affidavit in Support of a Claim for Custody or Access.
186The second aspect of the applicant mother’s motion to adduce fresh evidence is more complex and involves other considerations. The applicant mother seeks to adduce further evidence that, on dates subsequent to the conclusion of the hearing of the trial, the respondent father allegedly smelled of alcohol when attending for access exchanges. The applicant mother grounds her concern on the order of the court dated March 23, 2018, the respondent father is precluded from “alcohol consumption prior to and during access.”
187In exercising my discretion to admit further evidence after the conclusion of the trial, I consider the bearing of the further evidence upon the case in light of the evidence already heard at trial. I recognize that, in keeping with the authorities reviewed in Brasseur v. York, a more relaxed standard of admission is appropriate given that a decision has not yet been rendered. However, at the same time, the authorities are clear that it remains the exceptional case where a motion to adduce further evidence following the conclusion of the hearing of the trial should be allowed.
188Having considered all of the relevant factors in the circumstances of the instant case, I have decided not to re-open the trial to hear further evidence on the question of the respondent father’s alcohol consumption. I do so for the following reasons.
189First, the nature of the evidence to be introduced is reviewed in some detail in the affidavits of the applicant mother sworn February 18, 2020, and February 25, 2020. I note the quality of that evidence generally. The evidence before the court is hearsay evidence, in some cases double-hearsay and even triple-hearsay. Some of that evidence purports to come from what the children have allegedly told the applicant mother about the respondent father’s drinking of alcohol. I note that I already have before me at trial hearsay evidence from the children about the alleged drinking of the respondent father during access visits.
190The proffered evidence is also not internally consistent and, as well, speaks to a history of involvement by the applicant mother with the staff at the New Beginnings supervised access centre to an extent that, in my view, impairs the objectivity of the evidence. Put broadly, the evidence of the applicant mother is that based on the (hearsay) reports to her by the oldest child that his father had consumed alcohol during an access visit, the applicant mother commenced inquiries of the New Beginnings staff. There were questions raised as to why New Beginnings staff did not alert the Windsor-Essex Children’s Aid Society. There were questions raised as to why New Beginnings staff did not alert the applicant mother as the custodial parent. There were questions raised with the manager at New Beginnings of the conduct of staff.
191I note that, after the interventions of the applicant mother, there is (hearsay) evidence from New Beginnings staff that they detected some odour of something from the respondent father that could be caused from a variety of sources. That is, as indicated in the notes made by New Beginnings staff at the access exchange on February 8, 2020: the respondent father “often comes in with an odour made up of what could be a variety of things (cigarettes, gum, mouthwash, alcohol?)”
192There is also (hearsay) evidence that on February 12, 2020, the applicant mother demanded to speak with the manager of New Beginnings. There is (hearsay) evidence that on February 14, 2020, the manager of New Beginnings spoke to the CAS about the New Beginnings staff reporting that the respondent father “often smells of alcohol,” in response to which the New Beginnings manager indicated that “what was reported isn’t factual and the reporting staff can only speak to their own knowledge.”
193I also note the (hearsay) evidence that on February 20, 2020, the CAS worker called the New Beginnings manager to follow up on reports by New Beginnings staff that they detected an odour of alcohol on the respondent father, in response to which the New Beginnings manager “apologized for the misinformation. Staff have not noticed slurred words, glazed eyes or stumbling. She said she smelled a small amount of alcohol on [the respondent father] yesterday and he had bloodshot eyes. Manager said staff did not detect anything yesterday.”
194And for the sake of completeness, I also note the (hearsay) evidence of New Beginnings staff that on February 22, 2020, staff at New Beginnings detected an odour of alcohol on the person of the respondent father and, as a result, staff cancelled the father’s access visit on that day.
195One must consider the probative value of this apparently inconclusive and inconsistent evidence measured against, inter alia, the necessity of receiving such evidence in order to deal with the case justly, as well as the increased delay, cost, and complication of the litigation that would necessarily be caused by the introduction of that evidence.
196Apart from the inconclusive nature of the proffered evidence, the admission of this further evidence on this issue is unnecessary. The issue of the alleged drinking of the father at or about the time of access visits was pursued at great length at trial. As I have expressed above, I already have a concern regarding the question of the respondent father’s drinking and his access visits based on the evidence already adduced at trial. The proffered evidence, which, on its face, is inconclusive and apparently inconsistent, adds very little, if anything, to my appreciation of the issue. It certainly cannot be said to be determinative of the issue. It certainly cannot be said that it would probably change the result at trial, or even that it would probably have an important influence on the result. Indeed, given the evidence that I have already heard at trial, I cannot say that it would have any real influence on the result. It is simply more of the same, mostly hearsay, evidence that I have already heard at trial.
197Moreover, the question of the respondent father’s drinking is not dispositive of the larger consideration of the boys’ access time with their father.
198Finally, I consider the provisions of subrules 2(3) of the Family Law Rules and the interests of finality. There is no doubt that the admission of this further evidence will serve to delay the determination of the issues at trial. If the case is to be re-opened to permit the applicant mother to call this evidence, then the respondent father must be given an opportunity to challenge the evidence, both by way of cross-examination and reply evidence. Moreover, I must bear in mind that the respondent father is now representing himself and may require additional time to respond to such further post-trial evidence. That will further delay the determination of this matter, and I do not believe that is in the best interests of the children.
199I also consider that the interest in finality may take on an added significance in high-conflict litigation. The nine-day trial in this matter concluded on Friday, December 20, 2019. Barely a month later, on January 23, 2020, counsel for the applicant mother was writing to the court seeking a forum in which to address the question of adducing further evidence. Some two weeks later – not even two months following the closing addresses at trial – the applicant mother was seeking to adduce further evidence of the alleged drinking of the respondent father, which, again, was an issue that was pursued at great length at trial. So within a matter of weeks following the conclusion of the hearing at trial, there was a request to present evidence that is “more of the same.” Where does it end?
200In my view, at least in the circumstances of the instance case, permitting either party to continue the tit-for-tat exchange that permeated the trial of this high-conflict proceeding would not productive, would not assist the court in coming to the just, most expeditious, and least expensive determination of the issues at trial, and certainly would not serve the best interests of the children.
201For all of these reasons, I exercise my discretion in favour of not admitting the proffered fresh evidence. The motion of the applicant mother is dismissed.
Conclusion
Costs
202Costs should normally follow the event. Subrule 24(1) of the Family Law Rules provides that “[t]here is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.”
203That said, in my view, neither party here can fairly be said to be the “successful party” at trial, as neither party was entirely successful relative to the claims they advanced at trial.
204The central issues were custody and access. The respondent father sought joint custody, a claim that he pursued throughout trial. As I have ruled, joint custody is not appropriate in this case, and thus the father’s claim was not successful.
205On the question of access, the applicant mother vigorously resisted the father’s claim for garden-variety access and overnight access. I have held that, consistent with the OCL report, it is in the best interests of the children that the children eventually have garden-variety access with their father, and that the parties must move forward, on a gradual basis, to normalize access on a garden-variety basis within six months. As such, the mother was unsuccessful on the central issue of access.
206Accordingly, I find that success at trial was divided and, as a result, each party should bear their own costs.
Order
207For the reasons set out above, a final order shall issude in the following terms:
Divorce
a. On consent, a divorce order is granted, effective 31 days from this date.
Custody
b. The applicant mother shall have custody of the children of the marriage, namely, Stephen Paftali, born September 22, 2008, and Sebastian Paftali, born July 12, 2012.
c. The children of the marriage, namely, Stephen Paftali, born September 22, 2008, and Sebastian Paftali, born July 12, 2012, shall primarily reside with the applicant mother.
Name change
d. The names of the children of the marriage shall remain Stephen Paftali and Sebastian Paftali, and neither party shall change the name of the children without the written consent of both parties or an order of the Superior Court of Justice.
Parenting incidentals
a. The children shall continue to attend counselling with Dr. Reuben Schnayer. Both parties shall participate in that counselling to the extent that Dr. Schnayer deems necessary. The uninsured cost of the counselling shall be paid equally by the applicant and the respondent.
b. Notwithstanding any other provision of this order, the counselling with Dr. Schnayer shall remain “closed,” and the content of the counselling shall not be disclosed, relied upon, or referred to for any litigation purposes whatsoever.
c. Neither party shall schedule any regular activities for the children during the other’s party’s parenting time without the written consent of the party who is scheduled to parent the children, such consent not to be unreasonably withheld.
d. Each parent may make inquiries and be given information by each child’s teacher, school officials, physicians, counsellors, psychologists, and other health care providers. The applicant and respondent shall sign any consent, direction, authorization, or other document necessary to give effect to this provision.
e. If a child of the marriage is admitted to hospital, the parent with whom the child is residing shall notify the other parent within 15 minutes of admission.
f. The applicant shall ensure that the respondent is listed as the children’s secondary emergency contact for any school, medical or extracurricular activities.
g. If either party intends to travel outside of Essex County during their time with the children, they shall provide notice to the other, not less than 24 hours in advance, of where they will be traveling to and who will be present with them.
h. The parties shall each execute and return a travel consent to permit the children to travel with either party for day trips to Michigan. The parties shall advise the other of their intention to take the children to Michigan not less 24 hours in advance of the planned travel and shall indicate where they will be travelling to and who will be present with them.
i. In the event that the applicant wishes to take the children on vacation outside of Canada, she shall provide the respondent with no less than 30 days notice of her intention to do so, including any itinerary and contact information. The applicant shall make the children available for video or audio calling with the respondent for no less than 20 minutes per day beginning at 6:00 p.m. Eastern Standard time, or at a time agreed upon by the parties. The children shall not be in the care of anybody besides the applicant if they are outside the country of Canada. The respondent shall not unreasonably withhold his consent for this purpose and shall execute the necessary travel consent.
j. Both parties shall provide written notice of any intended change in residence at least 30 days prior to such change in residence.
Communication
k. The applicant and respondent shall refrain from any form of reliance on the children to communicate information between the parents.
l. The parties shall communicate through the Our Family Wizard program only, and such communication shall be restricted to only matters involving the children. The parties may communicate by text messaging only in case of emergency.
m. The parties shall each be financially responsible for maintaining their own account with Our Family Wizard.
n. Neither parent shall speak in a disparaging or negative manner about the other parent or allow or encourage other persons to do so in the presence of the children. Neither parent shall post any disparaging or negative comment about the other parent in social media.
o. Neither parent shall discuss with the children, or with another person in the presence of the children, any issue relating to parenting arrangements, present or past legal proceedings, financial issues relating to the parties or the child, including child support and special or extraordinary expenses, or conflicts between the parties relating to any such issues.
p. Neither parent shall leave out or make accessible to the children any information, document, or electronic file pertaining to any issue arising from the parties’ separation and divorce, and neither party shall permit the children access to their personal email where communications regarding these matters are stored.
q. Neither parent shall do anything that would estrange the children from the other parent, injure the opinion of the child as to their mother or father, or impair the natural development of the child’s love and respect for each of their parents.
Child support
r. The respondent, Bruno Paftali, shall pay child support to the applicant, Nadia Paftali, for the children of the marriage, Stephen Paftali, born on September 22, 2008, and Sebastian Paftali, born on July 12, 2012, in the amount of $1,038 per month, in accordance with the tables under the Federal Child Support Guidelines based on the respondent’s annual income of $68,164.68, commencing September 1, 2020, and continuing on the first day of each month that follows.
s. The parties shall adjust table child support each year whereby they will exchange their Income Tax Returns and Notices of Assessments by June 1st of each year and, beginning July 1st, the respondent shall pay table child support to the applicant based on his line 150 income in the year prior.
t. Any underpayment or overpayment of child support in the year 2019, and in each year thereafter, shall be calculated once the applicant and respondent exchange their Income Tax Returns and Notices of Assessment by June 1st of each year, and any under or overpayment shall be accounted for by adjusting the monthly child support payments from July 1st through December 1st, so that any under or overpayment is paid or deducted in equal parts in those six (6) monthly child support payments from July 1st through December 1st.
Spousal support
u. Neither party shall provide the other with spousal support at this time.
Medical benefits
v. The applicant and the respondent shall each maintain coverage for the children under the health benefit plan available to each of them through their respective employment.
Life insurance
w. The respondent father shall designate the applicant mother as beneficiary in trust for the children of his group life insurance policy at his place of employment. When the obligation to provide support for the children is terminated, the respondent father’s obligation to have insurance is also terminated.
x. Until the payment of insurance proceeds owing pursuant hereto is made, the table child support payments owing pursuant to paragraph 1 of this order (as if the respondent father were alive) shall continue.
y. The trust terms upon which the trustee holds the insurance proceeds paid to her pursuant to this agreement are as follows:
i. The proceeds of insurance shall be invested and, until a child reaches the age of 22, the income from the proceeds of insurance must be used in the trustee’s sole discretion for the welfare of each child that remains a “child of the marriage”. Any income not used in a year must be added back to the capital and treated as part of it. The trustee may encroach on the capital, if necessary, in the amount and as frequently and for whatever she may determine in her absolute discretion;
ii. Each child shall receive their proportionate share of whatever amount is left of the proceeds of insurance when the child reaches the age of 22. If the child is deceased before the age of 22 then that child’s share of the proceeds shall remain in trust and be paid to the deceased child’s sibling when the living sibling reaches the age of 22. If there are no siblings living, the amount remaining shall be paid to the deceased Respondent’s estate.
iii. The purpose of this life insurance is to replace the child support obligation and not to provide a windfall payment to the Applicant if the insured dies.
Costs
z. There shall be no costs of the application.
208For the reasons set out above, a temporary order shall issue in the following terms:
Updated parenting affidavits
a. Both parties shall deliver, within 20 days, an updated Form 35.1: Affidavit in Support of a Claim for Custody or Access.
Access
b. The respondent father shall not consume alcohol either during his parenting time with the children or for the eight (8) hour period preceding his parenting time with the children.
c. Effective March 1, 2021:
i. Paragraph 3 of the order of Howard J. dated September 18, 2019, is terminated.
ii. The respondent father shall have parenting time with the children every Wednesday from 5:30 p.m. until 7:30 p.m. and every other weekend from Friday evening at 5:30 p.m. overnight until Sunday at 5:00 p.m.
Transition
d. Both parties shall deliver, within 20 days, a draft order setting out proposed terms of access providing for the gradual increase of the respondent father’s parenting time over the period leading up to March 1, 2021.
e. The draft order delivered by the respondent father as required by subparagraph (d) above shall be accompanied by a statement or submission that addresses the court’s concern, as set out above, regarding the question of his consumption of alcohol during access visits.
f. Notwithstanding anything else in this order, the respondent father shall not remove the children from Canada without the written consent of the applicant mother or court order.
Holidays
g. The draft order required by subparagraph (d) above shall include proposed terms of holiday access.
209Any issue regarding the approval of the form and contents of this order shall be referred to my attention.
J. Paul R. Howard
Justice
Released: September 4, 2020
COURT FILE NO.: FS-18-18623-0000
DATE: 20200904
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NADIA PAFTALI
Applicant
– and –
BRUNO PAFTALI
Respondent
REASONS FOR judgment
Howard J.
Released: September 4, 2020
Footnotes
- Peers v. Poupore, 2011 ONCJ 159, at paras. 127-131.
- Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).
- Courts of Justice Act, R.S.O. 1990, c. C.43.
- Veljanovski v. Veljanovski, 2016 ONSC 2047, 81 R.F.L. (7th) 190 (S.C.J.), at paras. 37-60.
- Hameed v. Hameed, 2006 ONCJ 274 (O.C.J.).
- Veljanovski v. Veljanovski, at para. 49, citing Brian J. Burke and Margaretta H. Hanna, “Surreptitious Recordings in Family Law: Of ‘Odious and Repugnant Practices,’ ‘Calculated Subterfuges,’ ‘Tricks and Deceit’ – and The Truth” (Law Society of Upper Canada, 8th Annual Family Law Summit, April 1, 2014) at p. 3-3 et seq.
- Whidden v. Ellwood, 2016 ONSC 6938, [2016] O.J. No. 5816 (S.C.J.), at paras. 96-97.
- Hameed v. Hameed, 2006 ONCJ 274 (O.C.J.), at paras. 11 and 13.
- Veljanovski v. Veljanovski, at para. 56.
- Veljanovski v. Veljanovski, 2016 ONSC 5063 (S.C.J.), at paras. 15-32.
- Fattali v. Fattali, 1996 7272 (ON SC), [1996] O.J. No. 1207, 22 R.F.L. (4th) 159 (Ont. Ct. (Gen. Div.)), at para. 5.
- M.P.M. v. A.L.M., 2020 ONSC 1862 (S.C.J.), at para. 16, citing Reddick v. Reddick, [1997] O.J. No. 2497, 14 C.P.C. (4th) 175 (Ont. Ct. (Gen. Div.)), at para. 19. [Emphasis added.]
- Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).
- Children’s Law Reform Act, R.S.O. 1990, c. C.12.
- Kalliokoski v. Kalliokoski, 2016 ONSC 2273 (S.C.J.), at para. 31, citing Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, and Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3.
- See, for example, Allen v. Wu, 2011 ONSC 6813, 13 R.F.L. (7th) 284 (S.C.J.), at para. 74; and Laramie v. Laramie, 2018 ONSC 4740, [2018] O.J. No. 4130 (S.C.J.), at para. 25 and cases cited therein.
- See, for example, Dunnett v. Punit, 2006 ONCJ 442, 32 R.F.L. (6th) 446, at para. 7.
- Kaplanis v. Kaplanis, 2005 1625 (ON CA), [2005] O.J. No. 275, 10 R.F.L. (6th) 373, 249 D.L.R. (4th) 620 (C.A.), at para. 13.
- Gordon v. Goertz, at p. 48, para. 23.
- Somerville v. Somerville, 2007 ONCA 210, 36 R.F.L. (6th) 7, at para. 16.
- Y. v. F.-T., 2017 ONSC 4395, 96 R.F.L. (7th) 246 (S.C.J.), at paras. 1-3.
- J.Y. v. L.F.-T., 2019 ONSC 1718, 22 R.F.L. (8th) 272 (Div. Ct.).
- Kalliokoski v. Kalliokoski, at para. 32.
- Ibid. at para. 48, citing Roy v. Roy, 2006 15619 (ON CA), [2006] O.J. No. 1872, 27 R.F.L. (6th) 44 (C.A.), and Kaplanis v. Kaplanis, (C.A.).
- Kaplanis v. Kaplanis, at para. 11.
- Ibid.
- Kalliokoski v. Kalliokoski, at para. 34.
- Izyuk v. Bilousov, 2011 ONSC 6451 (S.C.J.), at para. 504, quoted and followed in Scott v. Chenier, 2015 ONSC 7866 (S.C.J.), at para.27 per Chappel J.
- Criminal Code, R.S.C. 1985, c. C-46.
- Maharaj v. Wilfred-Jacob, at para. 88.
- Peers v. Poupore, at para. 131.
- Godard v. Godard, 2015 ONCA 568, 65 R.F.L. (7th) 265, at para. 13.
- Ibid., at paras. 28-29.
- I appreciate that the language of the order, made in accordance with the consent of the parties, is not ideal, in that, strictly speaking, an exact literal interpretation of the court order would indicate that the respondent father could never consume alcohol at any point. Obviously, that was not the intent of the order, and the evidence before me at trial satisfies me that the parties understood the order was not intended to be enforced in that sense.
- Ludmer v. Ludmer, 2014 ONCA 827, 52 R.F.L. (7th) 17, at para. 22.
- Federal Child Support Guidelines, SOR/97-175 [Guidelines].
- Fraser v. Fraser, 2013 ONCA 715, 40 R.F.L. (7th) 311 (Ont. C.A.), at para. 97.
- Ludmer v. Ludmer, at para. 24.
- In support of the grounds for her motion, the applicant mother relies on the provisions of subrule 59.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. However, strictly speaking, the provisions of subrule 59.06(2) do not apply to the circumstances of the instant case. Subrule 59.06(2) contemplates that an order has already been made. In this case, reasons for judgment had not yet been delivered and no order had been made at the time of the bringing of the motion.
- The authority to hear a motion in writing during the suspension of in-person operations occasioned by the COVID-19 pandemic derives, in part, from the Consolidated Notice to the Profession, Litigants, Accused Persons, Public and the Media: Re: Expanded Operations of Ontario Superior Court of Justice, effective May 19, 2020, issued by the Office of the Chief Justice, in which it is stated, in section “A: Introduction,” that, “[w]hile in-court operations were suspended, the SCJ has not closed. It continues to expand its operations virtually – in writing, or by telephone or video conference hearings.” As well, again in the same Consolidated Notice, in section “C: Procedures Governing All SCJ Proceedings During Suspension of In-Court Operations,” subsection “3. Manner of Hearing,” it is said that: “[d]uring the suspension of in-court operations, matters will only be heard in-writing, or by telephone or video conference.” [Emphasis added.]
- Brasseur v. York, 2019 ONSC 4043 (S.C.J.), at paras. 37-49. The decision of Nakatsuru J. in Brasseur v. York was very recently applied in the family context in Children's Aid Society of Haldimand and Norfolk v. J.H. and M.H., 2020 ONSC 2208 (S.C.J.), at paras. 113-117, where the court held on the facts in that case that the proffered fresh evidence ought not to be admitted.