Superior Court of Justice - Ontario

COURT FILE NO.: FS-17-415447-0000

DATE: 2020-02-10

RE: Dimple Verma

AND:

Gaspare Di Salvo

BEFORE: J.T. Akbarali J.

COUNSEL: Steven M. Bookman and Maia Rabinovitch, for the Applicant

Ella L.J. Bernard, for the Respondent

HEARD: January 16, 2020

ENDORSEMENT

Overview

[1] The parties to this litigation are the parents of a four-year-old child, J. They each brought motions which were heard together. The respondent father first brought a parenting motion. The parenting motion spawned two motions by the mother to strike evidence on which the father relied. The mother subsequently withdrew one motion to strike. The mother’s remaining motion to strike spawned a motion from the father to strike an affidavit on which the mother relied. The mother also seeks a restraining order.

[2] I addressed the motions to strike at the outset of the hearing and delivered reasons thereafter, before argument on the substantive motion proceeded. These reasons, therefore, deal with the issues raised in the substantive parenting motion, including with the father’s request for custody of J, a change of school for J, and a s. 30 assessment under the Children’s Law Reform Act, R.S.O. 1990, c. C.12, among other relief. These reasons also deal with the mother’s request for a restraining order.

Background

[3] The parties began living together in May 2010. They married on November 28, 2014. At that time, the father had a child, M, from a previous relationship. M primarily lives with the father, and so also lived primarily with the mother during the parties’ cohabitation. Together the parties have a daughter, J, who was born in December 2015.

[4] The parties separated on May 23, 2018. At some point, the father and M left the parties’ matrimonial home. J continued to reside in the matrimonial home with the mother until it was sold.

[5] The father does not work outside the home. In approximately 2010 or 2011, he suffered two head injuries which he states have left him unable to work. The mother is a lawyer and has consistently worked outside the home.

[6] The parties have had numerous case conferences during these proceedings. On June 18, 2018, at a conference before Goodman J., the parties negotiated a consent order which included parenting time for the father. The parenting time did not include overnight parenting time, but it did include daytime parenting time during the week and on the weekend. In June 2018, J was not yet in school. Due to the father not working outside the home, he was able to be available for the weekday daytime parenting time the parties agreed upon.

[7] The parties’ consent order also included a term that that the mother would “not move out of Vaughan or the Greater Toronto Area”. Although the term refers to the mother only, given that J was primarily residing with her at the time, it can be understood as an agreement that the child would not move out of Vaughan or the Greater Toronto Area.

[8] After the sale of the matrimonial home, the mother and the child relocated to Vaughan. The father states this relocation was the mother’s unilateral decision. J was scheduled to begin junior kindergarten in September 2019, but the parties disagreed on the school where J should be enrolled. The mother sought to enroll her in a school in Maple, in walking distance to her home, while the father sought to enroll her in a Catholic school that M attends, near to where he and M live in Toronto, and which he states the parties had earlier agreed to.

[9] On August 15, 2019, Goodman J. granted the parties leave to bring motions, including leave to the father to bring a motion with respect to the school in which J should be registered.

[10] That motion was originally brought returnable on September 26, 2019, before me. However, it had to be adjourned to allow the mother to cross-examine one of the father’s witnesses, a private investigator whom the father had hired to surveil the mother.

[11] By the return of the motion, on October 17, 2019, the parties had added to the time required to hear it, and the complexity of the issues, by bringing their various motions to strike. As a result, I adjourned the motions to a long motion date to be heard together. However, I indicated that the delay between October 17, 2019 and the eventual hearing of the motion would not create a status quo for purposes of this motion. I also made temporary parenting orders pending the return of the motion.

[12] In very brief summary, the father’s motion seeks orders (i) granting him interim custody of J; (ii) requiring the mother to deliver J to his care and permitting her access to J on dates and times recommended by a parenting coordinator, and on the condition that the mother not use drugs 24 hours before and during her parenting time with J; (iii) requiring the mother to submit to monthly drug testing and monitoring; (iv) requiring J to attend the Catholic school nearby the father, which M also attends; (v) an order for a s. 30 assessment; and (vi) related relief.

[13] The father has accused the mother of significant cannabis use, driving under the influence of drugs, abusive behaviour towards him, self-harm, threatening to harm J, and poor judgment in parenting J. The mother has accused the father of substance abuse, abusive behaviour towards her, self-harm, and inability to parent J properly.

[14] In these circumstances, I must determine the following interim issues:

a. How should decision-making for J be addressed?

b. What parenting time orders are appropriate?

c. What, if any, conditions should attach to parenting time?

d. Where should J go to school?

e. Should a s. 30 assessment be ordered?

f. Is the mother entitled to a restraining order against the father?

[15] In addition, as noted, the father seeks related corollary relief, with respect to the custody of J’s documents, the assistance of police to enforce the court’s order, the manner of payment of the s. 30 assessment, and costs.

[16] I now turn to the analysis of these issues.

Parenting Issues

[17] The father’s motion seeks interim custody of J, an order that the mother deliver J to him, and an order that the mother’s parenting time take place on dates and times recommended by a parenting coordinator and that it be subject to certain conditions. Based on the father’s argument, I understand this request for “custody” to relate to decision-making for J, J’s primary residence, and parenting time with J. In addition, as I have noted, the father raises other, related issues, including what school J should attend.

[18] The parties’ affidavits are rife with accusations against each other, but remarkably light on evidence about J. Their focus has been on demonizing one another while paying little attention to J’s needs and circumstances.

[19] This is problematic, principally because it reflects that the parties’ attention is not where it ought to be – on the needs of their young child. It is also problematic because it places me in the position of determining parenting issues with only limited evidence about J and her circumstances.

[20] This court has jurisdiction to make parenting orders under s. 16 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.). By s. 16(2), the court may make an interim order for custody of or access to the children of the marriage. Section 16(4) provides for orders for joint custody and access to the children of the marriage.

[21] Under s. 16(6), the court may impose such other terms, conditions or restrictions on an order for custody or access as it considers fit and just.

[22] Section 16(8) directs the court, when making an order for custody or access, to consider only the best interests of the child as determined by reference to the condition, means, needs, and other circumstances of the child.

[23] Section 16(9) prohibits the court from taking into consideration the past conduct of any person when making an order for custody or access, unless the conduct is relevant to the ability of that person to act as a parent of a child.

[24] Section 16(10) codifies the principle of maximum contact. It provides that:

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

[25] Although not the controlling section in this case, s.24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, sets out the factors a court should consider in determining the best interests of the child. It is a helpful guide for courts making custody and access orders, even where those orders are made under the Divorce Act. It provides:

Best interests of child

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

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

(i) each person, 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.

[26] I note that there are amendments to the Divorce Act, not yet in force, that will replace the language of “custody” and “access” with “parenting time” and “decision-making”. In practice, courts have been using this updated language for some time already, because it better reflects a child-focused approach to parenting. I will use this updated language in my decision on this motion.

Decision-making for J

[27] Currently there is no order in place dealing with decision-making for J.

[28] Each party’s evidence suggests some difficulties in joint decision-making.

[29] The mother deposes that the father assaulted her and sexually assaulted her, resulting in two charges laid by police, which were resolved by a peace bond. The father denies the accusations and states the charges were laid in response to false complaints made by the mother for tactical advantage in these proceedings.

[30] The father alleges the mother assaulted him, but the mother states that the father harmed himself and is now blaming her.

[31] The father argues that the mother has made decisions unilaterally, including moving to Vaughan with the child and enrolling her in a school other than the one he states the parties had agreed upon.

[32] The mother argues that there was a consent order that contemplated her living in Vaughan, and that she had to enroll the child in school somewhere. She denies agreeing to enroll the child in the school the father prefers. I note that the father had leave to bring his motion about the child’s school in August 2019, but he did not bring it on for a hearing until late September 2019.

[33] The mother also argues that the father created unnecessary difficulties for her when she had to travel with the child on short notice after the death of her mother. She points to this lack of cooperation as an indication that the parties cannot make decisions jointly.

[34] I cannot reconcile the parties’ allegations about each other on a paper record, without cross-examinations.

[35] In my view, a temporary, without prejudice order for joint decision-making is in J’s best interests. I reach this conclusion for the following reasons:

a. J has loving ties with both of her parents. Each has an important perspective to offer in making important decisions that will affect her.

b. Although each party makes serious allegations about the other’s ability to parent in their written material, at the hearing of the motion, the mother agreed that J is safe in her father’s care, and the father restricted his concerns about the mother to her marijuana use. I will address these issues in greater detail when I turn to my analysis of parenting time, but at this juncture, it suffices to note that each parent is a capable parent with the ability and willingness to provide J with guidance and education, the necessaries of life, and meet her needs, and the ability to act as a parent. There is thus no reason for concern in terms of the parties’ ability to make decisions in J’s best interest.

c. There is evidence of the parties cooperating in the past to make decisions for J, including entering into consent orders with respect to residence and parenting time.

d. There is also a history of each parent being significantly involved in J’s life. Since separation, the mother has been the primary parent, but before separation, the father, as the stay-at-home parent, was involved to a great degree in J’s life.

e. I am concerned that the conflict between the parents now is such that any order for sole decision-making will risk marginalizing the other parent in J’s life. Each parent has behaved inappropriately with respect to decisions for J. The father’s unnecessarily skeptical and confrontational approach on the death of the mother’s mother was inconsiderate and unhelpful. The mother’s exclusion of the father and unilateral decision to enroll the child in her current school – as opposed to seeking a court order in the event of the parties’ disagreement – was unnecessarily oppositional, defiant, and disrespectful of the father’s role in J’s life.

[36] I thus conclude that a temporary, without prejudice order for joint decision-making will best ensure both parties’ participation in major decisions for J. I am also satisfied that, although decision-making for J has not been smooth, the parties are capable of reaching joint decisions on consent, as they have done in the past. In the event there is disagreement on a major decision that must be made for J, either party may apply to the court to determine the issue, after first conferencing it.

Parenting Time with J

[37] As I have noted, in June 2018, the parties entered into a consent order for parenting time with J. I accept that the June 2018 order is now spent, because it contemplated weekday daytime parenting time for J, which is no longer feasible given that she is in school. Thus, if a material change were required, the fact that J is in school and has grown older is sufficient to meet that criterion.

[38] The mother argues that my temporary order of October 17, 2019 establishes a parenting status quo, which should not be changed absent a material change in circumstances. I disagree.

[39] My order set out parenting orders as terms of an adjournment of the motion that, among other things, sought custody of J, parenting time for the mother in accordance with the advice of a parenting coordinator, and delivery of J to the father. Without having heard that motion on the merits, the order setting out terms of the adjournment cannot be considered an order creating a status quo that cannot be varied.

[40] The mother also argues that the current arrangement is a de facto status quo. I disagree again. The current parenting arrangement was established by my order setting out terms of the adjournment and, for the reasons I explain above, is not an order that creates a status quo.

[41] I also note the mother’s concession at oral argument that I have the jurisdiction on this motion to make a different parenting order for J in her best interest.

[42] In these circumstances, the earlier orders and the arrangements the parties agreed to under those orders do not require a material change to revisit them on this motion. However, if they did, I would find that the child’s relocation to Vaughan from Toronto, her beginning school, and her having grown older and thus more able to accept a residential schedule that moves her between two homes, amount to a material change that warrants revisiting the interim parenting time orders, especially where, as here, trial does not appear to be imminent. The parties have yet to have a settlement conference, and there are issues about disclosure.

[43] Since my order of October 17, 2019, the child has been transitioning between the parties’ homes, spending five nights of fourteen with the father. I gave the parties leave to file one updating affidavit each to allow them to report to me on the child’s current circumstances. In part, I was interested in knowing how the child adjusted to commencing overnight visits with the father.

[44] In determining what parenting order is in J’s best interest now, I note the following evidence:

a. The father has made serious allegations about the mother having a significant marijuana habit, and her driving while impaired. The father relies on a report of a private investigator that speculates that the mother smoked a number of marijuana cigarettes on the days she was followed by the investigator. However, the father has editorialized and exaggerated the report of the private investigator in his affidavit evidence. In any event, the mother does not deny smoking marijuana. However, she deposes that someone called the police contemporaneously with the surveillance on her. Her evidence is that the police attended her office and spoke to her and laid no charges. She has obtained the police officers’ notes of that call, and the notes indicate that there was no indication that she was impaired.

b. A letter from the Children’s Aid Society indicates that the father involved the Society with the family by reporting concerns that the mother was using marijuana extensively and this was impacting the mother’s ability to care for J. The Society launched a child protection investigation and was not able to verify the allegations. It concluded there is no evidence to support that the mother is unable to be in a caregiving role or that J is at risk of being harmed in the mother’s care.[^1]

c. The father’s affidavit material makes sweeping allegations against the mother, including self-harm, threatening the child, and violent behaviour towards him. By the hearing of the motion, the father limited his concerns to the mother’s drug use.

d. The mother originally made a number of accusations against the father, including over-use of prescription drugs, including sleeping aids that would make it impossible for him to attend to J’s needs in the middle of the night, violence, and self-harm. At the hearing of the motion she admitted that the father was a capable parent.

e. I have already noted that I accept that both parties are loving parents with strong emotional ties to J.

f. Since separation, the mother has been J’s primary parent. It is important that J continue to maintain her strong relationship and stable home life with her mother.

g. It is also clear that the father was an active caregiver in J’s life prior to separation and that his role has increased since my temporary order in October 2019. It is important that J has the opportunity to develop and maintain her strong relationship with the father.

h. J’s brother, M, lives primarily with the father. The evidence indicates that J and M are close. They should have the opportunity to build and strengthen their relationship, which can only occur if they spend meaningful time together.

i. I will address the question of the school below, but here it suffices to note that the father has not raised any issues with transiting J to and from her current school in Maple during his parenting time with her, and that the school the father proposes she attend is nearby to the mother’s place of work. It thus appears that there are no logistical factors related to J’s commute to either school that would affect the parenting order made in respect of J.

j. J is too young to be able to meaningfully express views and preferences.

k. The father’s brother deposes that he spends a lot of time with J when she is with the father and she has not complained about being unhappy. To the contrary, she suggests nothing but “delight and laughter” when in her father’s care.

l. The mother deposes that J has had some challenges in adjusting to the current parenting schedule but that, now that the holidays have ended, she expects that J will have an easier time at parenting exchanges as she is more settled in her regular routine. She also states she is hopeful that J’s transitions will become easier over time.

[45] Given the foregoing evidence, I conclude that, on a temporary, without prejudice basis, an increase in the father’s parenting time is warranted. The father shall have parenting time with J as follows:

a. In week one, from Wednesday pick up at school to Friday drop off at school,

b. In week two, from Tuesday pick up at school to Wednesday drop off at school,

c. In week two, from Friday pick up at school to Monday morning drop off at school.

[46] This schedule provides the father with six nights out of fourteen with J, which maximizes her parenting time with the father while maintaining her stable living arrangements with the mother. It also allows her meaningful time with her brother, M. It ensures that exchanges take place at school, which minimizes the chance for conflict between the parties, and it ensures frequent points of contact for her with both of her parents.

[47] The parties provided no evidence about when M has parenting time with his other parent, or even if he does. Had I been provided with that evidence, I would have directed a start date for the parenting time schedule I set out herein to ensure that J’s parenting time with the father overlaps as much as possible with the father’s parenting time with M. The temporary, without prejudice parenting schedule I have ordered should begin immediately, and in such a way that lines up week one and week two with any parenting schedule in place for M to ensure maximum contact between M and J.

What, if any, conditions should attach to parenting time?

[48] Given the allegations of drug use, I continue the temporary, without prejudice terms I ordered in my endorsements of September 26, 2019 and October 17, 2019, that is, neither party shall consume drugs, other than prescription drugs, while J is in their care or within 24 hours of her coming into their care.

[49] However, I am not prepared to order monthly drug testing or monitoring. First, the evidence does not establish why it would be helpful. I have, for example, no evidence explaining what monthly testing would reveal. By the terms of my order, a party is entitled to smoke cannabis (a legal substance) as long as they do not do so while J is in their care or in the 24 hours before she comes into their care. Would monthly testing be able to determine when a party had smoked cannabis and whether they were respecting my order? The evidence is silent on the point.

[50] Moreover, the father’s accusations about the mother smoking cannabis are not borne out by either the results of the CAS investigation or the police investigation. As a result, the evidentiary basis to warrant an order for monthly drug testing is not sufficient. The father has not established, on a balance of probabilities, that the mother’s consumption of cannabis puts the child at risk.

Where should J go to school?

[51] The father seeks an order that J attend Venerable John Merlini Catholic School. He states this is the school where M attends, and which he and the mother agreed J would go to. He states that the mother in fact applied to send J there, and then withdrew her application.

[52] The mother denies that the parties agreed that J would go to Venerable John Merlini Catholic school, and she denies having sent in an application for J. J currently attends a public school in Maple, Nellie McClung P.S, in walking distance from the mother’s home. The mother argues that the child is happy at Nellie McClung P.S., and that there is before and after school care on site, so the child does not have to transit to and from child care to school, as she would have to do at Venerable John Merlini Catholic School.

[53] In my endorsement of October 17, 2019, I indicated that the adjournment of the motion to January 2020 would not create a status quo on the question of which school J should attend. In any event, she is young, and can easily change schools at this stage in her education without significant difficulty. I thus deal with the question of J’s school from the standpoint of her best interests, without regard to any status quo.

[54] In considering J’s school, I note the following evidence:

a. M attends Venerable John Merlini Catholic School. However, he is currently in grade seven. Even if J were to transfer there now, she would have at most a year and half in the school with M before he moves on to high school. Moreover, it is highly unlikely that M and J would spend much time together at school given the differences in their ages, notwithstanding the program at the school that involves older children in the activities of the younger children.

b. Venerable John Merlini Catholic School is not in the father’s catchment area. The father deposes that in August 2019, the principal told him the school would make an exception to allow J to attend the school because M is a student there. However, this is hearsay evidence and it has not been updated.

c. Given the parenting schedule I have ordered, the father will be responsible for eight out of twenty pick-ups and drop-offs in a two-week period. The mother will be responsible for twelve out of twenty pick-ups and drop-offs. There is some minor benefit to J in attending Nellie McClung where the commute to and from school will be shorter more often, but I do not place much weight on this factor, given the evidence that Venerable John Merlini Catholic School is close to the mother’s work, and the lack of any evidence from the father that the commute for J from his home to Nellie McClung P.S. is problematic.

d. Nellie McClung P.S. has before and after school child care on site, which is an advantage over Venerable John Merlini Catholic School, where J would have to travel to and from before and after school child care, at least on days when the mother would be responsible for picking her up or dropping her off. However, I do not place much weight on this factor, which I consider to be only a minor advantage.

e. I am concerned with the mother’s unilateral selection of Nellie McClung P.S. without the father’s agreement or a court order. However, I have, to a large extent, addressed those concerns with the order for joint decision making that I have already made.

f. I also note that, given the parties’ consent order that specifically contemplated the mother, and by extension the child, living in Vaughan, the idea that J would go to school in that area had to be at least a possibility the father turned his mind to, given that the child’s primary residence was with the mother at the time that order was consented to.

[55] I thus conclude that, on a temporary, without prejudice basis, J shall remain a student at Nellie McClung P.S. In my view, this is consistent with the parties’ consent order that specifically contemplated Vaughan as a location the mother might move to. It minimizes J’s transit to and from school to the extent possible given the parenting schedule I have ordered. Moreover, it is not at all clear to me that J would continue to have a place at Venerable John Merlini Catholic School, given that the father lives out of the catchment area and the only evidence on the school’s willingness to admit her is both dated, and hearsay.

Corollary Relief

[56] The father seeks other parenting orders in his notice of motion, which I now address.

[57] The father seeks an order requiring the mother to deliver to him all of J’s documents, including her passports, social insurance card and her health cards. Under the terms of my order, J’s primary residence will remain with the mother. In my view, on a temporary, without prejudice basis, it is sensible for the mother to be the custodian of J’s documents. However, the mother shall provide the father with copies of J’s documents. In the event the father requires the originals, the mother shall cooperate in providing them to the father, and he shall return them promptly once he no longer requires them.

[58] The father sought an order that the police forces with jurisdiction enforce the terms of my order. At this point, I see no need for police enforcement. Police enforcement of court orders can be traumatic for a child. Without a solid evidentiary foundation establishing a need for police enforcement, I dismiss this request for relief.

The Section 30 Assessment

[59] The father seeks an order for a s. 30 assessment, arguing that J is too young for the Office of the Children’s Lawyer to undertake a Voice of the Child Report. He argues that a s. 30 assessment can consider the needs of both, J and M, and that a report may assist the court in determining the children’s best interest.

[60] The mother resists a s. 30 assessment, arguing that there is no need to undertake one. She objects to the delay a report would cause and the intrusive nature of the report. She disagrees that a s. 30 assessment would assist the court.

[61] The burden to establish that a s. 30 report ought to be ordered lies on the party seeking one: Brown v. Brown, 2018 ONSC 1009, 290 A.C.W.S. (3d) 363, at para. 18.

[62] Section 30 assessment reports are intrusive, expensive, and can cause delay. Some courts have limited s. 30 assessments to cases where clinical issues exist: Sheikh v. Muzaffar, 2018 ONSC 4415, 294 A.C.W.S. (3d) 566, at para. 57.

[63] However, in Glick v. Cale, 2013 ONSC 893, 48 R.F.L. (7th) 435, Kiteley J. canvassed the law with respect to s. 30 assessments thoroughly. She concluded that a clinical issue is not required before an order for an assessment can be made.[^2] Importantly for the purposes of this motion, at para. 48, she laid out a non-exhaustive list of criteria that might assist a judge in deciding whether to order an assessment. These factors are:

(a) What was the parenting relationship like before separation? Did the parents function at least adequately before the separation and the dysfunction arose after the separation?

(b) Are the parents unable to make any decision about the child’s needs (including education, religion, health, and activities) without intervention by a court?

(c) Without defining “high conflict”, is the relationship between the parents so unhealthy that one or both parents is/are unable to identify the best interests of the child and act on it?

(d) Do the parents have a mutual disregard for the other parent’s ability to parent?

(e) Do the parents blame each other for the dysfunction each describes?

(f) Is there a clinical diagnosis that might impact on the parenting capacity of one or both parents?

(g) Is there a clinical diagnosis with respect to any of the children in the family unit that means the child is fragile and vulnerable to ongoing conflict and has special needs?

(h) What is the age of the child at separation and at the time of the request for the assessment?

(i) Is the child manifesting behaviour that might be associated with stress caused by the conflict between the parents?

(j) Is there an alternative? For example, is the child of an age and maturity that his or her views should be known and if so, would it be more appropriate to ask the OCL to become involved and appoint a lawyer to act for the child?

(k) Are there other challenges in the family such as whether the family home must be sold? If those challenges are resolved, will the family dynamic be improved and avoid the necessity of an assessment?

(l) What is the basis upon which the moving party relies? Is it essentially a mobility case on which the court must hear evidence? Is the issue custody or access?

(m) What is the estimated cost? Do the parents have the financial resources to pay that cost?

(n) Will the assessment cause delay that is not in the best interests of the child? In considering the impact of delay, is it more likely than not that the delay necessarily involved in an assessment will enable the parents to have a better understanding of the family dynamic and arrive at a resolution without a trial?

(o) Is an assessment in the best interests of the child?

[64] Applying these factors to this case, I note the following:

a. Prior to separation, the evidence, to the extent it exists, suggests that the parents functioned at least adequately. While each makes allegations about the other, these are, to a large extent, bald allegations and do not raise significant concerns about the manner in which the parties parented J, or M, prior to separation.

b. The parents have been able to make some decisions about J’s needs on consent. There does not seem to be any dispute about decision-making for M. Indeed, while the father raises concerns about M’s best interests in circumstances where he spent much of his childhood to date living with the mother as well as the father, and while he seeks child support from the mother with respect to M, the mother, in her Reply, denies that she stood in the place of a parent to M, and denies any responsibility for M. The dispute between the parties as it relates to M thus seems to focus principally on support obligations, rather than parenting time or decision-making.

c. It is difficult on the record before me to determine whether the relationship between the parents is so unhealthy that one or both are unable to identify the best interests of J and act upon it. I have expressed concern that the parents spent more time focusing on the faults they see in each other rather than on J’s needs. However, on the record before me, at least so far, J appears to be reasonably well insulated from the parties’ conflict and, as I have noted, the parties have been able to make some decisions for her on consent. I thus conclude that, notwithstanding their conflict (which I hope will lessen as a result of these reasons determining interim parenting arrangements) the parties remain able to identify and act upon J’s best interests.

d. The parents’ affidavit evidence suggests they have a mutual disregard for the other parent’s ability to parent. However, I have already noted the manner in which their complaints about the other shrank during oral submissions. In my view, the concerns each raised about the other were exaggerated on this motion, perhaps to seek tactical advantage.

e. The parents blame each other for what they claim to be each other’s parenting deficiencies, but as I have stated, in my view, the parties have exaggerated each other’s alleged deficiencies and as a result, the blame they place on the other is also exaggerated.

f. There is no clinical diagnosis that might impact on the parenting ability of either parent. While each party makes allegations of substance abuse, self-harm, and abusive behaviour, it is notable that there is very little to support these allegations besides the parties’ bald statements. There are no contemporaneous medical records consistent with the parties’ narratives of abuse or self-harm. There are no police reports, apart for the complaints made by the mother in the heat of the parties’ separation. I note she asked the Crown to withdraw the charges of assault and assault with a weapon, stating that “things were blown out of proportion”, she did “not recall important details”, and “the incidents are out of character”. There is no evidence of psychiatric appointments or admissions. There are no records of police conducting wellness checks on either party. There are not even any text messages between the parties documenting any of the events the parties state occurred. If bald allegations alone were sufficient evidence to order a s. 30 assessment, such assessments would be routine.

g. There is no clinical diagnosis with respect to the children. All the evidence suggests that J is doing well. There is no evidence with respect to M. There is no evidence to suggest either of them is fragile, vulnerable to ongoing conflict, or has special needs.

h. J was two and a half years old at separation and is four years old now. M was 12 years old at separation and is 14 years old now.

i. There is no evidence of any behaviour of either J or M that might be associated with stress caused by the conflict between the parents.

j. J is too young to seek a Voice of the Child Report from the Office of the Children’s Lawyer. M is not too young for such a report, but since parenting time and decision-making do not appear to be in dispute for M, it is unclear what purpose a Voice of the Child Report would serve. I recognize that M could make his views and preferences known with respect to his relationship with J, but the evidence in the record suggests the parties agree the children will benefit from a relationship with each other. This does not appear to be an area in dispute where the Office of the Children’s Lawyer could assist the court.

k. There have been other challenges in the family, related principally to the parenting orders. With these reasons, it is my hope that the situation between the parties will regularize, and as a result, improve the family dynamic.

l. Although the father makes arguments about mobility on this motion, the mother’s move to Vaughan was consistent with the consent ordered the parties entered into. In my view, the big issues in dispute between the parties as they relate to J are decision-making and parenting time.

m. The father has provided consents to act from two assessors. From the documentation filed, it appears the s. 30 report could easily cost $15,000-$20,000. There are funds in trust from the sale of the matrimonial home that could be accessed to pay for the s. 30 report.

n. A s. 30 report, if ordered, will cause delay that is not in the best interests of J. The parties’ conflict must be reined in. A lengthy assessment process will, in my view, run the risk of setting the parties up to continue their conflict as each jockeys for favourable recommendations from an assessor.

o. In my view, having regard to all these factors, a s. 30 assessment report is not in J’s best interests. It would cause delay and be intrusive to a little girl who, at least right now, is coping well notwithstanding the parties’ conflict. I am also concerned that the basis for the s. 30 assessment request relies largely on the bald allegations the parties make about each other, and thus an assessment process will provide incentive to the parties to continue to make such allegations, which have not been properly supported by objective evidence on this motion. Nor do I consider a s. 30 assessment to be necessary to assist the court in determining the child-related issues in this case.

p. Moreover, given the paucity of evidence regarding M, and the lack of any dispute with respect to parenting time with M or decision-making for M, it cannot be in M’s best interest to undertake an intrusive s. 30 assessment. The mother, in her Reply, acknowledges that she had a loving relationship with M. It appears that relationship was fractured when the parties separated. It is not in M’s best interest to make him revisit that relationship, the loss of which may be painful for him.

[65] Accordingly, the father’s motion for a s. 30 assessment report is dismissed.

The Mother’s Request for a Restraining Order

[66] The mother seeks a restraining order. She states that the peace bond the father entered into will expire in March 2020 and, given the father’s conduct in hiring a private investigator to follow her, she is concerned for her safety. She relies on s. 46(1) of the Family Law Act, R.S.O. 1990, c. F.3, which provides that the court may make an interim or final restraining order against a spouse of the applicant “if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody”. She also relies on s. 35(1) of the Children’s Law Reform Act in support of her request for a restraining order.

[67] The mother argues that the purpose of a restraining order is to permit both litigants the opportunity to conduct their litigation in as reasoned a manner as possible: Bordeianu v. Taimish, 2018 ONSC 6668, 19 R.F.L. (8th) 464, at para. 41. She argues that reasonable grounds for her fear of safety extends to both, her physical safety and her psychological safety. She states that a restraining order can be issued where there are fears of a personal or subjective nature, relating to the respondent’s words or actions: Bordeainu, at para. 37; Falconer v. Mistretta, 2018 ONSC 6668, 299 A.C.W.S. (3d) 798 at para. 42.

[68] The test in determining whether to grant a restraining order under s. 46(1) is described in Falconer, at para. 42, as follows:

a. The fear must be reasonable;

b. The fear may be entirely subjective so long as it is legitimate;

c. The fear may be equally for psychological safety, as well as physical safety.

[69] In support of her request for a restraining order, the mother points to the charges laid (and withdrawn) against the father for assault and sexual assault, and the peace bond into which the father entered. She states that she is terrified that the father hired a private detective to stalk her movements in light of what she describes as his longstanding history of abuse and control.

[70] She states that, since learning of the private detective, she is “riddled with anxiety, fear, frustration and helplessness”. She states she has no idea if she is still being watched.

[71] She deposes that she is concerned because the husband’s peace bond will expire on March 20, 2020.

[72] The mother acknowledges writing to the Crown to ask them to drop the assault charges laid against the father when the parties were attempting a reconciliation, but she states she was pressured by the father to do so. She deposes that, after separation while the parties still lived in the same home, the father could not control his behaviour, and deposes that he groped her, forced his way into a room after she locked it, and filled her car with dirty diapers during an argument.

[73] In contrast, the father deposes that, after separation, it was the mother who initiated contact with him, and she was not afraid of him. He denies pressuring her to write to the Crown about his charges. He notes the absence of medical evidence about her anxiety, fear, frustration, and helplessness.

[74] There is no doubt that there is and has been serious conflict between the parties. However, in my view, the parties’ evidence of each other’s alleged wrongdoings is embellished, exaggerated, or designed to elicit tactical advantage in the proceedings.

[75] Restraining orders are serious, and they can have serious consequences. To make a restraining order, the court must be satisfied that one is warranted. Bald statements of fear are not sufficient to discharge the burden of proof. Old allegations of poor behaviour at the height of the parties’ conflict, without more, are not sufficient to discharge the burden of proof.

[76] I thus dismiss the mother’s request for a restraining order. She has not proven, on a balance of probabilities, that she reasonably fears for her psychological or physical safety. However, I dismiss this relief without prejudice to the mother’s right to renew her request for this relief if new circumstances warrant it. To be clear, such circumstances could include the father persisting in having the mother followed.

Costs

[77] I now turn to consider costs.

[78] Modern family costs rules are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlements, to discourage and sanction inappropriate behaviour by litigants, and to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, 299 A.C.W.S. (3d) 770, at para. 10. The touchstone considerations of costs awards are proportionality and reasonableness: Beaver v. Hill, 2018 ONCA 840, 17 R.F.L. (8th) 147, at para. 12.

[79] Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. By r. 24(10)(a) of the Family Law Rules, O. Reg. 114/99, the court is directed to make a decision on the costs of a step in the case promptly after dealing with the step, in a summary manner.

[80] Pursuant to r. 24 of the Family Law Rules, the successful party is presumptively entitled to costs, subject to the factors set out in r. 24: Beaver, at para. 10.

[81] The factors to consider in setting the amount of costs are listed in r. 24(12). The court must consider the reasonableness and proportionality of the factors enumerated there as they relate to the importance and complexity of the issues. These factors include each party’s behaviour, the time spent by each party, any written offers to settle, including those that do not meet the requirements of r. 18, any legal fees, any other expenses, and any other relevant matter.

[82] There is no general approach in family law of “close to full recovery costs”: Beaver, at para. 11. Rather, full recovery is only warranted in certain circumstances, such as bad faith under r. 24(8), or beating an offer to settle under r. 18(14): Beaver, at para. 13.

[83] At the close of the motion, the parties agreed to provide me with their bills of costs, along with the offers to settle in a sealed envelope. They agreed to forego making submissions on costs, but instead, agreed that after I finished writing my reasons on the motion, I would open the sealed envelope and review the parties’ bills of costs and offers to settle, and then determine the costs of this motion. I followed this agreed-upon procedure. I assume, for my analysis, that each party claims their costs of this motion.

[84] The father delivered an offer to settle dated August 22, 2019, in which he offered to settle a number of issues, including some not addressed on this motion. However, the offer was severable. As it relates to the issues raised on the motion, it seems to seek final, rather than temporary, without prejudice orders. In any event, it offers to settle on the basis of the relief sought on the motion, including sole custody to the father, and an order that J attend the Venerable John Merlini Catholic School, and seems to contemplate a change in J’s primary residence to be with the father. The father has not beaten this offer.

[85] The father also delivered an offer to settle where he offered to adjourn the original September 26, 2019 date for the motion on the basis that J’s school would be changed to the Venerable John Merlini Catholic School, that he would have increased parenting time, being every other weekend from Friday after school until Monday morning, and overnights on Wednesdays, and joint decision-making. This offer contemplated that the motion would still be argued. The father had some success consistent with this offer. In October 2019, I ordered the temporary parenting schedule he sought in this offer, and he subsequently succeeded in extending that time through these reasons, and I ordered joint decision-making. I did not, however, order that J’s school be changed.

[86] In my view, success on the motions brought by the parties, including their motions to strike, is divided. The father did not succeed in obtaining an order for sole custody of J, although he did have some success in that he obtained an order for joint decision-making. Similarly, the father had some success in obtaining an order for expanded parenting time, but not as much as he sought. The father did not obtain the order he sought changing J’s school, nor did he obtain the corollary relief he sought. He did not obtain an order for a s. 30 assessment.

[87] The mother did not obtain the restraining order she sought. She had some success in resisting the relief sought by the father, but not full success, as demonstrated by the orders for joint decision-making and expanded parenting time for the father.

[88] The father had some success on his motion to strike portions of the mother’s affidavit. The mother had mixed success on the motion to strike evidence that she proceeded with. She withdrew her other motion to strike the affidavit of the private investigator.

[89] Given the mixed results on the motion, and the fact that no offer to settle was beaten, I conclude that neither party is the successful party on the motion. Neither party has behaved in a manner that warrants an order of costs to express the court’s disapproval of that parties’ conduct in the litigation. I thus conclude that neither party is entitled to costs; it is just that the parties bear their own costs of these motions.

Next Steps

[90] I am concerned that the parties’ conflict risks causing harm to J if it is not brought under control or resolved. I am hopeful that the interim, without prejudice orders I have made will assist in regularizing the parties’ situation and allow them to focus on moving their conflict towards a resolution, whether negotiated or adjudicated. Either way, it is important that the conflict proceed to a conclusion as soon as possible.

[91] I thus direct the parties to schedule a case conference with Goodman J. as soon as possible to determine the next steps to move this matter forward to a settlement conference and trial, if necessary, in an expeditious way.

Conclusion

[92] Order to go as follows:

a. On a temporary, without prejudice basis, the parties shall jointly make all decisions for J. In the event of disagreement, either party may apply to the court to resolve the issue, after first conferencing it.

b. On a temporary, without prejudice basis, effective immediately, the father shall have parenting time with J as follows:

i. In week one, from Wednesday pick up at school to Friday drop off at school,

ii. In week two, from Tuesday pick up at school to Wednesday drop off at school,

iii. In week two, from Friday pick up at school to Monday morning drop off at school.

iv. This schedule shall commence immediately. Week one and week two shall be chosen having regard to the father’s parenting time with M to ensure that, to the extent possible, J shall be in the father’s care at the same time as M.

v. At all other times, J shall reside primarily with the mother.

c. On a temporary, without prejudice basis, neither party shall consume drugs, other than prescriptions drugs, while J is in their care, or within 24 hours of her coming into their care.

d. The husband’s request for a temporary order providing for monthly drug testing is dismissed.

e. On a temporary, without prejudice basis, J shall continue to attend Nellie McClung P.S.

f. On a temporary, without prejudice basis, the mother shall be the custodian of J’s documents. The mother shall provide the father with copies of J’s documents. In the event the father requires the original(s) of J’s documents, the mother shall cooperate in providing them to the father, and he shall return them promptly once he no longer requires them.

g. The father’s request for an order that police forces with jurisdiction enforce this order is dismissed.

h. The father’s request for a s. 30 assessment is dismissed.

i. The mother’s request for a restraining order is dismissed, without prejudice to her right to renew the request if circumstances change.

j. There shall be no order as to costs.

k. The parties shall schedule a case conference before Goodman J. as soon as possible to determine next steps to move this matter forward expeditiously to a settlement conference and trial if necessary.

J.T. Akbarali J.

Date: February 10, 2020

[^1]: The Society recommended that the parents consider attending a course to help them better understand how conflict impacts children and how to manage post-separation conflict.

[^2]: See paragraphs 40-46 of Glick for Kiteley J.’s discussion as to why a clinical issue is not required for a s. 30 assessment to be ordered. I do not spend more time on this question in these reasons because it is not the focus of this motion.