Court File and Parties

COURT FILE NO.: FC-19-1220 DATE: 20210212 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Taylor Ball, Applicant AND: Holland Josiah McKenzie, Respondent

BEFORE: The Honourable Justice J.P.L. McDermot

COUNSEL: Linda Paterson-Kelly, Counsel for the Applicant M. Adel Afzal, Counsel for the Respondent

HEARD: February 11, 2021 via Zoom

Ruling on motion

[1] The Applicant, Taylor Ball and the Respondent, Holland McKenzie met in 2017 and cohabited for about 16 months, from June 1, 2018 to September 28, 2019. They are the natural parents of a son, Bronx, who just turned 3.

[2] The Applicant also brought a child, Onyx into the relationship. Onyx is now four years old.

[3] The Respondent was removed from the parties’ common residence as a result of domestic violence. In argument, his lawyer said that he acknowledged that what he did was wrong and has been working on anger management through the John Howard Society. Ms. Ball commenced an application soon after the parties separated, requesting custody of both the children and supervised access to the Respondent. On October 7, 2019, I granted a restraining order to the Applicant which was extended on October 23 on consent.

[4] On October 23, 2019, Mr. McKenzie agreed to fairly limited access. He agreed that he would only have access on Sundays from 10:00 a.m. to 6:00 p.m., Mondays from 10:00 a.m. to 6:00 p.m. and Thursdays from 5:00 p.m. to 7:00 p.m. and that this access would be supervised.

[5] The supervision requirement was eventually relaxed on consent by order of Jain J. dated February 25, 2020 but the access largely remained the same [1] and never graduated to overnight access. Mr. McKenzie now brings a motion for overnight access every second weekend and access on Wednesday evenings. He says that there is no reason why access should remain day access only.

[6] Although Ms. Ball filed material which suggested that any overnight access to the two children should remain day access only because Mr. McKenzie neglected the children and returned them dirty and tired, the real issue became apparent only during argument. The issue is really access to Onyx who, as noted above, is not Mr. McKenzie’s natural child.

[7] Throughout Ms. Ball has treated both of the children as if they were Mr. McKenzie’s children. She made no differentiation between the children in her application, stating that they were both children of the parties. Although she did distinguish between the children in the October 23, 2019 order, [2] she accepted full guideline child support from Mr. McKenzie for both the children and he was content to pay that child support. The order of February 25, 2020 which provided for unsupervised access made no distinction between Bronx and Onyx. Since that order was made, Onyx attended all of the access with her brother until she went to school when the Monday access became after school access.

[8] However, Ms. Ball has now changed her mind. Although she acknowledges that Mr. McKenzie will remain involved in Bronx’s life as his father, Ms. Ball wishes to treat Onyx differently. The Applicant’s lawyer, Ms. Paterson-Kelly asked at the motion for Onyx’s case to be split from Bronx’s (this was refused as there was no motion to do so before the court). Ms. Ball acknowledged that Mr. McKenzie was entitled to the weekend access that he was requesting concerning Bronx, but wishes the access to Onyx to remain as day access only, and if anything, more limited than it was before. This is reflected by the fact that the Respondent Father is now getting overnights to Bronx but not to Onyx.

[9] Mr. McKenzie also asked for a reduction in child support as he has now supplied his 2019 income information (it was not available in February 2020 when the child support was fixed) which shows his income to have reduced substantially since 2018.

[10] The issues therefore raised in the motion are as follows;

a. What access is Mr. McKenzie entitled to concerning Onyx? b. Should Mr. McKenzie’s interim child support be varied based upon his decrease in income?

Access Issues

[11] These parents were not married and accordingly the provisions of the Children’s Law Reform Act [3] govern the access issues between the parties.

[12] Under s. 21(1) of the CLRA “A parent of a child or any other person” can apply for access to a child. Mr. McKenzie as a stepparent to Onyx qualifies as “any other person”.

[13] In this case, the issue involves the doctrine of “parental autonomy”. The leading case in Ontario in this regard is Chapman v. Chapman, [2001] O.J. No. 705 (C.A.) which was an appeal from a final order after trial granting access to a grandmother and her 8 and 10 year old grandchildren. Abella J.A. noted that there was a finding by the trial judge that the relationship between the grandmother and children was not positive, and that the purpose of the trial judge’s order was to “create” a positive relationship. She noted that this is the job of the parents and not the court, and if the parents’ decision was not arbitrary, it was not for the court to interfere with that decision unless it was in the best interests of the children to do so.

[14] The ratio of this decision has been summed up in several cases [4] as an inquiry as to the following questions:

a. Is there a positive relationship between the Respondent and the child? b. If there is a positive relationship, has the parents’ decision imperiled that relationship? c. Has the parent acted arbitrarily?

[15] In the present case, the Respondent is now enjoying overnight access to his natural child, Bronx. There is no question that the decision to differentiate Onyx’s access from Bronx’s was a decision made by the Applicant. The real issue is whether there is a positive relationship between Mr. McKenzie and Onyx, and whether the mother’s position was arbitrary in nature or with a view to preserving the best interests of the child.

[16] It is to be noted as well that there is authority that the parental autonomy argument may fail where the access seeker has had a “settled intention” to treat the child as his or her own. In Agmon v. James, [2018] O.J. No. 59 (C.J.), Sherr J. gave access to a stepmother over the parents’ objections. At para. 58, he stated that “the court finds that the [parental autonomy] line of case law is not applicable to a person who has formed a settled intention to treat a child as a child of his or her own family. Their status is different than family or community members who have not formed the requisite settled intention.” This decision was cited with approval (although not followed) by Boswell J. in Laye v. Brisebois, 2020 ONSC 4439.

[17] In making his determination regarding parental autonomy, Sherr J. relied upon s. 62(3)(b) of the CLRA which requires any person demonstrating a settled intention to treat the child as a member of his or her own family to be named as a party to custody proceedings. Parties who can demonstrate settled intention enjoy a status beyond that of a person having a relationship with the child which does not meet the “settled intention” test such as a relative or grandparent.

[18] Finally, it is to be noted that, in examining the provisions concerning best interests of a child as set out in s. 24(2) of the CLRA, only one of those criteria [5] is related to the blood relationship between the party and the child.

[19] And it is clear that the court must examine the best interests of Onyx in determining whether her access to the Respondent Father is going to be different from that enjoyed by her brother, Bronx. These are set out in s. 24(2) of the CLRA and can be summed up as follows:

a. The emotional ties between the Respondent and his family to the child (s. 24(2)(a) which is relevant as well to settled intention: see Chartier v. Chartier, [1999] 1 S.C.R. 242 at para. 39); b. Views and preferences of the child (s. 24(2)(b)); c. Stability and parenting factors (s. 24(2)(c) to (g) inclusive; d. Familial or blood ties (s. 24(2)(h))

[20] The court is also required to examine domestic violence issues and as to whether the party has been abusive to either the other parent, the children or any other person: see s. 24(3) and (4) of the CLRA.

Best Interests: Emotional Ties / Settled Intention

[21] There is little doubt that Mr. McKenzie demonstrated a settled intention to treat Onyx as his own. He says that Onyx has called him “daddy” since 2017 when he met the Applicant. He speaks in his affidavit of the activities that he participated in with the children, including taking Onyx to daycare and preparing her breakfast. He spoke about playing with Onyx in the backyard and he took Onyx grocery shopping. There is some independent evidence in this as Onyx was present for Mr. McKenzie’s photograph for his Costco card.

[22] Although Ms. Ball has filed evidence about Mr. McKenzie’s deprecation of her in front of Onyx, she does not deny in her affidavit that Mr. McKenzie took an active parenting role concerning Onyx as set out in his affidavit. She simply says that she does not want to share parenting of Onyx with Mr. McKenzie because he is not Onyx’s father.

[23] Ms. Ball also does not deny that Onyx has a close relationship with his family; in fact, she complains about Mr. McKenzie’s mother giving religious guidance to Onyx, which she finds offensive.

[24] There are some things which are noticeably absent from the affidavits filed on this motion. There was very little evidence about the relationship between Onyx and Bronx, and as to how differentiating the access between Onyx and Mr. McKenzie would affect either of the children. There is also very little in the Applicant Mother’s affidavit concerning the ill effects of access on Onyx. Finally, there is almost nothing about the role played in Onyx’s life by her natural father.

[25] In all, it is clear from the material that Mr. McKenzie has demonstrated a settled intention to treat Onyx as a member of his own family. In fact that is what seems to be more concerning than anything to Ms. Ball; on several occasions Ms. Paterson-Kelly in argument emphasized that the access with Onyx should be limited simply because Mr. McKenzie was not Onyx’s natural father and his family was not Onyx’s family. The corollary of this is that she finds it offensive that Mr. McKenzie did treat Onyx as his own child when he was not entitled to do so. This is, in fact, evidence of a connection between Mr. McKenzie, his family and the child which Ms. Ball simply cannot abide. And most of Mr. McKenzie’s extensive evidence regarding these connections was uncontradicted in Ms. Ball’s materials.

Best Interests: Views and Preferences

[26] The evidence is conflicting concerning this factor. Ms. Ball says that Onyx does not wish to attend access visits. Mr. McKenzie says that she does not want to go home. Any corroboration of this evidence was also conflicting: on Ms. Ball’s side, Lucas Leader confirms that Onyx did not want to go on visits and Mr. McKenzie’s father says that he has observed Onyx saying that she does not want to go home to her mother.

[27] Ms. Paterson-Kelly asks that the determination of overnight access be delayed until we hear from the Office of the Children’s Lawyer. I note that there was already an appointment requested of the Office of the Children’s Lawyer by order of Jain J. dated December 15, 2018 and that the OCL declined involvement partly because Ms. Ball failed to provide her intake form. She could not explain how this came about. The responsibility for the delay lies with Ms. Ball.

[28] Because of this, and because the views and preferences of a four year old child are not a major factor in determining best interests, I decline to delay my decision on access to Onyx until a possible appointment of the OCL. And at this point it is impossible to determine whether Onyx wishes to exercise access to the Respondent and his family.

Best Interests: Stability and Parenting Factors

[29] The Applicant is extremely critical of the Respondent’s parenting abilities. She says that the children come home dirty, hungry and tired. She claims that the children are not well taken care of in the Respondent’s household.

[30] She also claims that Onyx is left to care for her brother. It is unclear what was meant by this; if Bronx was left in the care of a four year old child without adult supervision, this would be a protection issue warranting intervention by the local Children’s Aid Society. That does not appear to have been the subject matter of a protection complaint by the Applicant Mother. I suspect that what the Applicant is saying is that the Respondent wants Bronx to have a playmate during access and without that he would otherwise have to engage with Bronx and do too much work when he is in the care of the Respondent.

[31] I discount allegations about the caregiving provided by the Respondent. If the Respondent is providing inadequate care of the children, then why is the Applicant permitting Bronx to go on overnight access as opposed to her refusal to do so with respect to Onyx? Does Bronx, as a natural child of the Respondent, deserve inferior treatment than does Onyx? It is clearly inconsistent to say that Onyx should not have overnight access to this supposedly neglectful parent while Bronx can have that access. This inconsistency casts doubt on the Applicant’s assertions of parental neglect during access visits.

[32] More concerning are the allegations of deprecation of the Applicant and her family contained in the affidavits of the Applicant and Lucas Leader. Both of these affidavits speak of some incidents in May, 2020 where the Respondent and his family “cornered” Mr. Leader and spoke in an extremely offensive fashion about the Applicant. The evidence is that this was in the presence of Onyx, who is older and able to understand what is being said. This would be a breach of the February 25, 2025 temporary order which contains a clause preventing deprecation of the Applicant by the Respondent or his family.

[33] If these allegations are true, this differentiates Onyx from Bronx who is, as yet, very young and somewhat unaware of deprecatory statements. This would be a basis for a different access regime for Onyx from that of Bronx.

[34] It is clear that the Applicant feels strongly about this topic. During argument, Ms. Paterson-Kelly confirmed that Ms. Ball had offered to waive any child support for Onyx whatsoever if Mr. McKenzie agreed to day access only to Onyx.

[35] I am firstly concerned about the credibility of the Applicant in making these statements. Her affidavit makes it clear that she will do almost anything to prevent extended access to Onyx from occurring. It is clear to me that the Applicant thinks that the Respondent does not love Onyx. She makes her views clear in paragraph 5 of her affidavit sworn February 8, 2021 when she says, “The Respondent is not the father of Onyx. He is only doing this for two reasons - one, so that he can hurt me and two, so that he has someone to take care of Bronx during his access visits.” This is a conclusion not supported by the evidence. This is a viewpoint that confirms that the Applicant has an equal animus toward the Respondent as Ms. Paterson-Kelly suggested during argument that the Respondent still has against the Applicant notwithstanding the anger management programs that the Respondent has taken through the John Howard Society.

[36] This also confirms to me that, apart from the credibility of the Applicant’s assertions, her decision not to permit overnight access by the Respondent to Onyx was arbitrary in nature within the meaning of Chapman v. Chapman, supra.

[37] Finally, the deprecation, if it took place, is dated information back to May, 2020, nearly ten months ago. If these statements were made, it was some time ago. There is no evidence of recent negative statements made against the Applicant in the presence of the children.

[38] Ms. Ball deposes that the Respondent’s mother “forcing Onyx to say prayers for Mr. McKenzie is beyond offensive.” She does not state when Mr. McKenzie’s mother made Onyx say these prayers, but if that pre-dated the February 25, 2020 order, it was addressed by that order which enjoins Mr. McKenzie from indoctrinating “the children into any religious behaviours” and also from permitting “his mother to be alone with the children or provide any religious indoctrination, instruction or coaching”. It is unclear from the affidavit whether the prayers pre-dated the February 25, 2020 order or whether it is a breach of that order.

[39] I therefore do not find this to be sufficiently proven or, if proven, insufficiently recent to differentiate access between Onyx and Bronx as requested by the Applicant.

Domestic Violence

[40] It is without a doubt that Mr. McKenzie was guilty of domestic violence which occurred during the breakdown of the parties’ relationship. He admits this to be the case. Neither party provided me with much if any evidence as to the details of the incident that led to the criminal charges.

[41] Under s. 24(4) of the CLRA, I am required to take this into account in determining the best interests of the children concerning access.

[42] Ms. Ball’s counsel spoke of it a lot, and in particular with reference to the deprecatory statements made by Mr. McKenzie as outlined in the Applicant’s materials.

[43] The Respondent has addressed this in his materials. He says that he knows that his actions were wrong. He says that he took domestic violence training as a result, and his participation in the program was described as “fully satisfactory”. He attended these programs “to address the concern that I believe the domestic violence complaint raised” which can be interpreted in several ways, but perhaps and hopefully as a desire to learn about what led him to do what he did.

[44] Apart from this, there has been no recent evidence of the issue of domestic violence or of abusive conduct by the Respondent.

[45] This is similar to the parenting issues. If domestic violence and abuse would result in a finding that overnight access is inappropriate for the children, why is Bronx in a worse position than that of Onyx? I do not find this to be a factor which would presently affect access by the Respondent to Onyx.

Conclusion re Access

[46] The Applicant consents to the overnight access requested concerning the parties’ natural child, Bronx. She does not feel it to be in the best interests of Onyx for Mr. McKenzie to have the same access to her because he is only a stepparent. At the moment, Bronx is going for overnight access and Onyx is not.

[47] There is no issue that the Respondent has demonstrated a settled intention to treat Onyx as a member of his family. This is not a case where parental autonomy should be the governing principle.

[48] The evidence is largely uncontradicted that the Respondent has played an important role in Onyx’s life. He and his family have a strong emotional connection with Onyx and I make this a finding in this motion notwithstanding Ms. Ball’s assertions that Mr. McKenzie does not really care about Onyx which are unsupported by any evidence whatsoever. And I find it inconsistent for the Applicant to rely upon parental neglect or abuse as a factor in Onyx’s access, yet ignoring this as a factor when consenting to overnight access by Mr. McKenzie to the parties’ natural child.

[49] And if parental autonomy is a factor in this case, I find that the Applicant’s decision to withhold overnight access was arbitrary and that it is in Onyx’s best interests to have the same contact with the Respondent as her stepbrother.

[50] Blood ties are important as confirmed by s. 24(2)(h) of the CLRA. However, we live in an age where blended families are more frequent, leaving children losing a number of parents upon separation rather than just one. More often we see the stepparent leaving the child behind because of the support obligations that go along with that and the lack of an emotional tie. It is refreshing to see a stepparent sufficiently engaged to continue seeing his stepchild to both fight for this in court and to pay full support for that child after separation. From the child’s perspective, that should be supported by the court, not discouraged.

[51] I therefore find that it is in the best interests of Onyx that her access be parallel to that of her half brother, Bronx.

Support Issues

[52] The child support in this matter was set by the order of Jain J. dated February 25, 2020. This support was based upon the Respondent’s income being $45,000 per year based upon his 2018 income of $51,669 per annum as set out in the Respondent’s Notice of Assessment for that year and based upon the fact that the parties had no knowledge of Mr. McKenzie’s actual 2019 income. This is confirmed by the February 25 Minutes which provided that the “child support shall adjust once the Respondent’s income is verified.”

[53] The Respondent has now verified his income by serving his Notice of Assessment for 2019 attached to an updating affidavit sworn July 28, 2020. This shows that the Respondent’s income dropped substantially in 2019 to $36,606.

[54] This warrants a variation in the temporary child support which was set on the basis of two-year-old income information. The Applicant did not request imputation of income but complains that the income is self employed income and the Respondent has not supplied his income tax return to demonstrate how that income was set. The Respondent confirms that he is now self employed which he says gives him the flexibility to take time off on weekends to exercise his access.

[55] However, the Notice of Assessment appears to have been provided in July or August of 2020 and the Applicant provided no evidence that she had requested disclosure of the Respondent’s income tax return. She did not demand it in her affidavit. It is too late for the Applicant to complain when the Respondent has been overpaying child support for some time and she received the NOA in August, 2020.

[56] Therefore, I am adjusting the child support as of the date that the income verification was provided and ordering that the Respondent’s child support be changed as of September 1, 2020 (the first of the month after service of the income verification affidavit).

Order

[57] The Applicant has asked for staged increases to overnight access to ease the children into overnight access. However, Bronx is already receiving overnight access although it is unclear what that consists of. In view of the fact that Mr. McKenzie’s access has been consistent throughout and the children know him well, there is no need to stage access.

[58] I do not believe it to be beneficial to allow an “optional” third weekend out of four as requested in para. 5 of the Respondent’s Notice of Motion.

[59] Therefore, temporary order to go:

a. The access orders dated October 23, 2019 and February 25, 2020 shall be varied respecting both Onyx and Bronx according to the terms set out in para. 4, 6, 7 and 8 of the Respondent’s Notice of Motion dated January 13, 2021; b. In addition, there shall be such further and other time sharing between the Respondent and the children as the parties may agree. c. The Respondent shall not deprecate the Applicant or her family or permit deprecation of the Applicant or her family in the presence of the children. d. On a temporary basis and commencing September 1, 2020, the temporary order of Jain J. dated February 25, 2020 shall be varied to provide that the Respondent Holland McKenzie shall pay monthly child support of $554 to the Applicant Taylor Marisa Ball. This child support amount is based on the Respondent’s annual income of $36,606.00 as indicated in his Affidavit (General) dated July 28, 2020. It is also based on the Child Support Guidelines table amount of support for two children, who in this case are Onyx Raven Ball (DOB 16, 09, 2016) and Bronx Reign McKenzie-Ball (DOB 04, 02, 2019). e. The Respondent shall be credited with overpayments of child support from September 1, 2020 onward. Overpayments are the difference in child support paid at the prior rate of $674 per month and the rate set out in this Order of $554 per month. The Director of the Family Responsibility Office shall make all required adjustments to implement this temporary change in child support. f. All other terms and conditions of the temporary orders of October 23, 2019 and February 25, 2020 not varied herein shall remain in full force and effect. g. On consent, order to go requesting involvement of the Office of the Children’s Lawyer.

[60] If the parties cannot agree to costs of this motion, they may place it before me by way of written submissions to be filed with the judicial assistant, the Respondent first and then the Applicant, on a ten day turnaround. Costs of the 14B motion noted above to be addressed separately if necessary. Costs submissions to be no more than three pages in length not including any offers to settle or bills of costs.

Justice J.P.L. McDermot Date: February 12, 2021

[1] The Thursday access was varied to 4:30 p.m. to 6:30 p.m. [2] In that order, the day access noted above was in respect of Bronx only. Paragraph 10 provided that, “Onyx may also attend the supervised access visits if desired by the Respondent as permitted by her schedule and availability to be communicated in advance through third parties”. [3] R.S.O. 1990, c. C.12 [4] See Young v. Young, 2019 ONCJ 747 at para. 23 and Giansante v. Di Chiara, 2005 CarswellOnt 2190 (S.C.J.) [5] Section 24(2)(h)