S.S. v. R.S., 2021 ONSC 2137

COURT FILE NO.: FS-20-99047

DATE: 2021 03 22

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: S.S. v. R.S.

BEFORE: Mandhane J.

COUNSEL: Shana Maiato, for the Moving Party/Applicant

James Olchowy, for the Responding Party/Respondent

E N D O R S E M E N T

OVERVIEW

1. C.S. (D.O.B. […], 2014) is seven years old and his sister, S.S. (D.O.B. […], 2017), is four years old (“the children”). Both children attend Catholic public school in Peel, and before- and after-school care at a daycare close by.

2. Their parents, S.S. (the Applicant/Moving Party) and R.S. (Respondent/Responding Party), met in 2003 and married in 2012. They separated in or around May 2018, after S.S. told R.S. that he was expecting a child with another woman, J.R. At the time of separation, C.S. was four years old and S.S. was 11 months.

3. Both parents work full-time. S.S. is a private investigator and works irregular hours, often leaving early in the morning and arriving home late at night. R.S. works for the Ontario government and has more regular hours.

4. The children are primarily cared for and attached primarily to R.S.. They live with her in a multi-generational family that includes: their maternal grandmother, C.G.; C.G.’s partner, W.G.; and W.G.’s two sons (ages 15 and 22).

5. S.S. lives with his mother, H.G., and his grandfather, B.G.. He is in a long-term relationship with J.R. who lives in a separate residence. The couple’s child, J.S., was born on […], 2018. He is now two years old and lives with his mother. S.S. sees J.R. and J.S. regularly.

6. Since January 2021, the children have been seeing S.S. weekly at H.G.’s house, and their visits have been going well.

7. S.S. now brings a motion for interim parenting time with the two children of the marriage. He relies on the parenting provisions in the recently amended Divorce Act, S.C. 2019, c.16 (“new Divorce Act” or “Divorce Act”).

8. R.S. opposes S.S.’s motion. She is agreeable to a more moderate increase in S.S.’s parenting time with strict conditions. R.S. has concerns about the children’s well-being because of their exposure to family violence during and after the marriage.

9. I must decide whether it is in the best interests of the two children of the marriage to spend more time with S.S. on a temporary basis pending final resolution of this matter.

10. I start by summarizing the parenting regime in the new Divorce Act, including the new provisions related to family violence. I highlight how the new parenting provisions implement some aspects of the United Nations Convention on the Rights of the Child. I then go on to interpret the parenting provisions in a manner that is consistent with children’s rights and Canada’s obligations under international law.

11. In applying the law to the matter before me, I adopt a three-stage analysis: first, I consider the children’s current circumstances; second, I determine their best interests given their unique circumstances; and, finally, I consider the proper terms of any parenting order.

DISPOSITION

12. It is in the best interests of the children to allow S.S. a slight increase in parenting time, largely consistent with the schedule proposed by R.S., but with slight modification to allow for contact between the children and their half-sibling, J.S.

THE PROCEEDINGS

13. On November 27, 2020, S.S. brought an urgent motion, prior to a case conference, for interim parenting time.

14. On January 12, 2021, Stribopoulos J. adjourned S.S.’s motion to allow for a case conference to be held. He ordered temporary parenting time for S.S. every Saturday during the day, and by videoconference on Tuesday and Thursday evenings. Parenting-time exchanges were to be facilitated by H.G. and/or C.G.. Stribopoulos J. did not order any overnight parenting time.

15. S.S. and H.G. say that the children are happy and engaged during their visits with their father. S.S. says that he has been spending more time with the children on a regular and predictable basis, and that they are very happy in his care. R.S. has not expressed any concerns about S.S.’s parenting time since it resumed in January.

16. On February 8, 2021, Emery J. conducted a case conference.

17. On March 3, 2021, the parties appeared before me for a three-hour hearing. I received voluminous affidavit evidence, heard lengthy submissions, and received factums.

18. S.S. seeks a two-week parenting schedule that would allow him to see the children for three consecutive weekend overnights in Week 1 (Friday through Monday), and two non-consecutive daytime visits in Week 2 (Wednesday and Saturday). S.S. asks that he, or someone duly authorized by him, be allowed to pick up and drop off the children from school. He anticipates taking the children to J.R.’s house for visits with her and J.S. I refer to this proposed arrangement as “S.S.’s proposed schedule”.

19. S.S. says his proposed schedule is in the children’s best interests because:

• There are no child protection concerns;

• R.S. has denied the children regular and consistent parenting time with S.S. post-separation, sometimes for months at a time;

• The children should spend as much time as possible with both of their parents;

• S.S. or his designate can reliably pick up the children at their school, which would minimize exchanges;

• The children should spend time with their half-brother, J.S., to develop a loving and close relationship with him; and

• Pandemic-related risks can be mitigated through adherence to public health measures in each household.

20. R.S. opposes S.S.’s motion and proposes her own two-week parenting schedule (“R.S.’s proposed schedule”). In Week 1, S.S. would have one overnight visit (Friday to Saturday) and, in Week 2, he would have one daytime visit (Saturday) and one week-night evening visit (Wednesday). She proposes that pick ups and drop offs continue to be facilitated by H.G., and that overnight visits take place at H.G.’s home. She also asks me to limit the children’s contact with people who live outside the parents’ two households (including J.R. and J.S.).

21. R.S. says that her proposed schedule is better tailored to the children’s best interests because:

• The children are young and particularly attached to her and C.G., who have always been their primary caregivers;

• S.S. has refused to abide by a consistent parenting schedule, which had made the children’s parenting time with him unpredictable, unstable, and erratic;

• Both children have witnessed and experienced S.S.’s anger and violence;

• C.S. has expressed fear of S.S. and some reluctance to spend time with him in the past; and

• Limiting visits to the parties’ two households is consistent with the current COVID-19 protocols and/or the children’s well-being.

22. S.S. says that R.S. only opposes his motion because she is jealous and is seeking revenge for S.S. re-partnering and having another child.

THE AMENDED DIVORCE ACT

23. On March 1, 2021, just two days before this motion was argued, the parenting provisions contained in the new Divorce Act came into force. They apply to the motion before me: ss. 126(1)-(2).[^1]

24. Subsection 16.1(2) of new Divorce Act allows me to make an order providing for the exercise of interim parenting time by either parent. “Parenting time” is defined in s. 2(1) as time that a child spends in the care of either parent, whether or not the child is physically with that person during that entire time.

25. My powers under s. 16 are broad and purposive. I can allocate parenting time and decision-making authority between the parents, impose a schedule, provide for the means of communication to be used by the parents, and make any other orders that I consider appropriate to secure the children’s best interests: Divorce Act, ss. 16, 16.1, 16.2.

26. Here, I offer an interpretation of the new parenting provisions that is consistent with children’s human rights and Canada’s obligations under international law: R. v. Hape, 2007 SCC 26, [2007] 2 SCR 292, at paras. 53, 174; Baker v. Canada, 1999 CanLII 699 (SCC), [1999] 2 SCR 817, at paras. 69-71.

27. A human rights-based approach to the new Divorce Act calls on courts to recognize, respect and reflect each child as an individual distinct from their parents, and to empower children to be actors in their own destiny.

28. In practice, it requires judges to probe into each child’s lived experience, to meaningfully consider their views and preferences, and to craft an order that promotes that child’s best interests and overall well-being. The “family violence” provisions in the amended legislation, in particular, empower courts to protect children from unique forms of violence that can have devastating lifelong impacts.

The “best interests of the child”

29. When making a parenting order, I must stay laser-focused only on the child’s best interests: Divorce Act, s. 16(1).

30. According to the Divorce Act, to judicially determine the child’s best interests, the court must “give primary consideration to the child’s physical, emotional and psychological safety, security and well-being”, while considering “all factors related to the circumstances of the child”: ss. 16(2)-16(3).

31. The “best interests of the child” test in the new Divorce Act effectively implements Article 3(1) of the Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3 (entered into force 2 September 1990, accession by Canada 13 December 1991) (“Child Rights Convention”): Department of Justice, Legislative Background: An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act (Bill C-78 in the 42nd Parliament) (28 August 2019), s. B (“Legislative Background”); Child Rights Convention: Combined fifth and sixth reports submitted by Canada under article 44 of the Convention, due in 2018, 28 January 2019, CRC/C/CAN/5-6, at para. 58.

32. Article 3(1) makes the “best interests of the child” the “primary consideration” in all actions concerning children. In General Comment 14, the UN Committee on the Rights of the Child (“Committee) notes that the “concept of the child's best interests is aimed at ensuring both the full and effective enjoyment of all the rights recognized in the Convention and the holistic development of the child”: General Comment 14: The right of the child to have his or her best interests taken as a primary consideration UNCRC, 2013, UN Doc. C/GC/14, at para. 4.

33. The Committee explains, at para. 37, that the expression “primary consideration” within Article 3 means that the child’s best interests must be given priority over all other considerations, explaining that:

This strong position is justified by the special situation of the child: dependency, maturity, legal status and, often, voicelessness. Children have less possibility than adults to make a strong case for their own interests and those involved in decisions affecting them must be explicitly aware of their interests. If the interests of children are not highlighted, they tend to be overlooked.

34. The Committee further cautions that “an adult’s judgment of a child’s best interests cannot override the obligation to respect all the child’s rights under the Convention”: at para. 4.

35. The Committee notes that the best interests analysis is wholistic, explaining at paras. 71-74, that:

When assessing and determining the best interests of a child or children in general, the obligation of the State to ensure the child such protection and care as is necessary for his or her well-being (art. 3, para. 2) should be taken into consideration. The terms “protection and care” must also be read in a broad sense, since their objective is not stated in limited or negative terms (such as “to protect the child from harm”), but rather in relation to the comprehensive ideal of ensuring the child’s “well-being” and development. Children’s well-being, in a broad sense includes their basic material, physical, educational, and emotional needs, as well as needs for affection and safety.

Assessment of the child's best interests must also include consideration of the child’s safety, that is, the right of the child to protection against all forms of physical or mental violence, injury or abuse (art. 19), sexual harassment, peer pressure, bullying, degrading treatment, etc., as well as protection against sexual, economic and other exploitation, drugs, labour, armed conflict, etc.(arts. 32-39).

36. I agree with the Committee that judicial determination of the “best interests of the child” is broader and more wholistic than a child welfare agency’s determination of whether a child is in need of protection.

“Circumstances of the child”

37. The new Divorce Act calls on to courts to engage in a rigorous assessment of the child’s specific situation as part of determining their best interests. Subsection 16(3) sets out the factors related to the “circumstances of the child”, which include, but are not limited to, the following:

(a) The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) The history of care of the child;

(e) The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) Any plans for the child’s care;

(h) The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, with one another, on matters affecting the child;

(j) Any family violence and its impact on, among other things,

i. The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

ii. The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

38. The requirement in s. 16(3)(e) to consider the “child’s views and preferences” is new, and is consistent with Article 12 of the Child Rights Convention. In the Legislative Background to the new Divorce Act, the Department of Justice explains that:

Under Article 12 of the United Nations Convention on the Rights of the Child, children who are capable of forming their own views have the right to participate in a meaningful way in decisions that affect their lives, and parenting decisions made by judges and parents affect child directly. The weight to be given to children’s views will generally increase with their age and maturity. However, in some cases, it may not be appropriate to involve the children, for example if they are too young to meaningfully participate.

See also: Official Report of Debates (Hansard), 42nd Parl., 1st Sess., No. 326 (26 September 2018) at p. 21866 (Hon. Jody Wilson-Raybould).

39. A human rights-based approach fundamentally recognizes children as subjects of law rather than objects of their parents. Making children more visible in legal proceedings that affect their rights is fundamentally important in Canada because children are not guaranteed legal representation in family law proceedings.

40. Therefore, in my view, even where there is no direct evidence about the child’s views and preferences, s. 16(3)(e) still requires the court should make a reasonable effort to glean and articulate the child’s views and preferences wherever possible, considering the child’s age and maturity and all the other evidence before it.

“Family violence”

41. Notably, s. 16(3)(j) the new Divorce Act specifically requires judges to consider the impact of family violence on the child. “Family violence” is defined broadly in s. 2(1) of as conduct by a family member towards another family member that is violent, threatening or that constitutes a pattern of controlling behaviour; that causes that other family member to fear for their own safety or for that of another person; and/or in the case of a child, “the direct or indirect exposure” to such conduct.

42. The definition of “family violence” in s. 2(1) also lists examples of criminal and non-criminal conduct that constitutes “family violence”, including physical, sexual, psychological, and/or financial abuse, as well as threats, harassment, and stalking.

43. Subsection 16(4) of the new Divorce Act provides still further guidance to courts considering the impact of “family violence” on the circumstances of the child, stating:

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

44. The Department of Justice in its Legislative Background explains that a child’s direct exposure to family violence (e.g., seeing or hearing the violence) or indirect exposure (e.g., seeing that a parent is fearful or injured) is itself recognized as family violence and a form of child abuse.

45. Again, these provisions are consistent with Article 19 of the Child Rights Convention, which grants children the right to state protection from “all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.”

46. In General Comment 13, the Committee provides an similarly expansive definition of violence, and which identifies exposure to domestic violence, and corporal punishment (including slapping and hitting) as forms of violence that impact children uniquely: General Comment 13: The right of the child to freedom from all forms of violence, UNCRC, 2011, UN Doc. C/GC/13.

47. The Committee notes the devastating impact of violence on children’s survival and their “physical, mental, spiritual, moral and social development”: at para. 15. It states that both the short- and long-term health, development, and behavioural consequences of violence against children and child maltreatment are widely recognized, and notes that “there is evidence that exposure to violence increases a child’s risk of further victimization and an accumulation of violent experiences, including later intimate partner violence”: at paras. 15(a)-(b).

Maximal contact, past conduct

48. “Maximal contact” is no longer enumerated as a factor in s.16(3) in the new Divorce Act. Instead, the legislation states in s.16(6) that: “in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child”.

49. Again, this is consistent with the child’s rights in international law. The Committee, in General Comment 14 at paras. 65-66, states:

When separation becomes necessary, the decision-makers shall ensure that the child maintains the linkages and relations with his or her parents and family (siblings, relatives and persons with whom the child has had strong personal relationships) unless this is contrary to the child’s best interests.

The Committee is of the view that shared parental responsibilities are generally in the child's best interests. However, in decisions regarding parental responsibilities, the only criterion shall be what is in the best interests of the particular child. It is contrary to those interests if the law automatically gives parental responsibilities to either or both parents. In assessing the child's best interests, the judge must take into consideration the right of the child to preserve his or her relationship with both parents, together with the other elements relevant to the case.

50. Clearly the idea of a presumption in favour of one type of parenting order is anathema to the court’s unrelenting focus on the child’s “best interests.” The most one can say is, all things being equal, the child deserves to have a relationship with both of their parents.

51. Finally, the new Divorce Act states that past conduct can only be considered if it is “relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order”: Divorce Act, s.16(5).

DETERMINING THE CHILDREN’S BEST INTERESTS

52. Having set out the applicable law, I now turn to the matter before me. To determine the interim parenting order that would be in the children’s best interests, I adopt a three-stage analysis, as follows:

• First, I consider the current circumstances of the children, including any exposure to family violence;

• Second, I determine the children’s best interests given their unique circumstances; and

• Third, bearing in mind the children’s circumstances and their best interests, I consider the proper terms of any parenting order.

53. In my view, it is helpful to break down the analysis required under the new Divorce Act provisions this way because it forces the decision-maker to adopt a rigorous approach to each of the analytical requirements set out in s. 16, while also allowing the court to effectively filter out evidence that is overly prejudicial, or irrelevant.

54. This analytical approach is also consistent with children’s rights, At para. 97 of General Comment 14, the Committee states that:

In order to demonstrate that the right of the child to have his or her best interests assessed and taken as a primary consideration has been respected, any decision concerning the child or children must be motivated, justified and explained. The motivation should state explicitly all the factual circumstances regarding the child, what elements have been found relevant in the best-interests assessment, the content of the elements in the individual case, and how they have been weighted to determine the child’s best interests.

The children’s current circumstances

55. At this first stage, I must consider all the evidence before me to properly understand the children’s current circumstances.

56. I reviewed affidavits sworn by S.S., R.S., C.G., H.G., and W.D. (the staff supervisor at the children’s daycare).

57. As none of the affiants were cross-examined, I placed the most weight on the daycare supervisor’s evidence. W.D. is a professional who has regular contact with the children throughout the week and who has an obligation to act in their interests. I also relied on C.G.’s affidavit insofar as she had an independent recollection of some of the incidents most relevant to the children’s experience of family violence. I relied on H.G.’s evidence to better understand the overall family dynamics.

58. I placed less weight on the evidence of S.S. and R.S., unless it was corroborated by the information from other sources. Both parents’ affidavits are marked by their efforts to paint the other parent in the worst possible light while outlining the entire history of their relationship. Much of this information is highly prejudicial and irrelevant to the children’s current circumstances, and it is not canvased in any detail here. S.S. offers very few details about his day-to-day care of the children, their unique interest and needs, or his plans for their care.

59. Unfortunately, given the urgent and interim nature of the motion, there were no independent assessments of the children’s current circumstances available to the court.

The children’s needs

60. The children are young and require constant supervision, regular hands-on care, loving and supportive attention, and a stable and predictable environment.

61. The children are happy and healthy and do not have any diagnosed disabilities or other special needs. Both parents are committed to meeting their educational and socialization needs.

62. Both children attend Catholic public school in Peel. R.S. or C.G. usually drop them off at daycare in the morning and pick them up from daycare in the evening.

63. During the 2019-2020 school year, S.S. would sometimes pick the children up at school without notifying their daycare in advance. According to W.D., this caused confusion and concern as they worked with the school to try and ascertain the children’s whereabouts and ensure their safety. W.D. says that the daycare asked S.S. not to pick up the children from school directly, but that he continued to do so afterwards.

64. S.S. acknowledges that there were times when he picked up the children directly from school but says that no concerns were ever raised by the school. He acknowledges that the daycare raised concerns, but he dismissed them as “more on the account of assisting the Respondent in her efforts to diminish my role as a parent in the Children’s lives.”

65. R.S. has been the parent primarily responsible for the day-to-day care of the children since birth. S.S. has been less involved in the day-to-day care of the children on account of his competing work obligations and, later, because of the parties’ separation.

66. Since January 2021, the children have been seeing S.S. once per week in person and twice a week by videoconference. The visits have been going well and there are no reported concerns. S.S. is not involved in picking up or dropping the children off from school or daycare.

Current child protection concerns

67. In April 2020, Peel C.A.S. concluded an investigation into the family and did not verify any risks for physical or emotional harm to the children. I am not aware of any other ongoing child protection investigations or concerns.

Relationships with other extended family members

68. The children are close and familiar with all the members of their parents’ two households.

69. From the beginning, C.G. and H.G. have also been very involved with the daily care of the children. The children have deep bonds with both of their grandmothers.

70. Beyond the people in their immediate households, S.S. says that he wants to raise all three of his children (C.S., S.S., and J.S.) as siblings. During his parenting time, he proposes bringing the children to J.R.’s residence for overnight visits.

71. R.S. says that exposing the children to J.S. and J.R. would not be developmentally appropriate.

Willingness to support a relationship with the other parent

72. To date, neither R.S. nor S.S. have supported the children to have a stable and consistent relationship with the other parent. Both parents have, at points, unilaterally blocked the other parties’ parenting time and refused to abide by regular parenting schedules.

73. After he moved out of the matrimonial home, S.S. says that he continued to see the children regularly, often dropping and picking up the children from daycare and school when his work scheduled allowed. While S.S. says that he had the children 50/50 immediately after separation, he provides very few specifics regarding his care of the children, stating that they would go the park and gym and study school subjects.

74. In August 2019, after he was charged criminally, S.S. began living with H.G., who is also his surety. S.S. saw the children a couple of times a week, with parenting time being facilitated by H.G. in consultation with R.S..

75. To ensure predictability and stability for the children, R.S. tried to put in place a more consistent parenting time schedule. But S.S. (via H.G.) refused to be pinned down. H.G. would ask for R.S. for parenting time in telephone calls or texts but was often denied because R.S. said that the requests were too last-minute.

76. S.S. saw the children about seven times per month between August 2019 and September 2020, excepting that he only saw the children three times in March and April 2020 because of the pandemic restrictions.

77. In September 2020, R.S. enrolled the children in a new school without consulting S.S.. She said the school was closer to friends and family who could help with picking up the children.

78. Later that same month, after exercising his parenting time, S.S. refused to return the children back to R.S. for three days. He says that he was upset that R.S. had changed the children’s school unilaterally. R.S. tried to contact S.S. but could not reach him. He alleges that R.S. began to monitor his and J.R.’s residence and activities. R.S. eventually called the police and S.S. returned the children. They missed three days of school, as well as some extracurricular activities. The children seemed tired but were otherwise unharmed.

79. R.S. refused S.S. any parenting time from October through December 2020. She says that, after the incident in September 2020, she could not trust S.S. to return the children. S.S. (via H.G.) rejected R.S.’s offer of four hours of parenting time on Boxing Day, saying that the proposed duration was too short.

80. S.S.’s parenting time only resumed after it was ordered by Stribopoulos J. on January 12, 2021.

Communication between the parents

81. The parties communicate through H.G. and cannot communicate directly due to their bail conditions and the high-conflict nature of this dispute.

82. R.S. says that the parents cannot make decisions about the children as a team and that, as a result, admits that she has made significant decisions about the children’s schooling unilaterally.

83. I sympathize. There is ample evidence before me that S.S. is not willing or able to work collaboratively with R.S., C.G. or H.G. in relation to the children. As is discussed below, S.S. is unwilling to consider any feedback on his parenting style without getting angry and defensive.

Family violence

84. R.S. says that S.S. has engaged in family violence during and after the marriage that is relevant to understanding the children’s circumstances.

85. Both R.S. and C.G. recall an incident in 2015 when S.S. slapped C.S. (then one year old) because he had fallen while playing. C.G. recalls other incidents in C.S.’s early childhood where S.S. ridiculed him, for example, when he was ill and could not eat his lunch and when he lost a balloon while getting into the car. C.G. observed that C.S. would cry and sometimes seemed scared of his father. C.G. says that S.S. refused to hear any critique of his parenting style or to heed the advice of other caregivers, professional or otherwise.

86. When C.G. was babysitting the children on May 6, 2018, right around the time of separation, she heard S.S. screaming at R.S. in front of the children and heard C.S. begin to cry. She recalls an incident at S.S.’s first birthday party, in […] 2018, when S.S. was asked to leave after he got in an argument with C.G. about R.S.’s whereabouts, yelled at C.G., and then flipped a table towards her and slammed his hands down on it.

87. While S.S. admits that he has argued with both R.S. and C.G. in the past, he claims that the arguments went both ways. He says that he sometimes got “frustrated” with C.G. because she was overly critical of him and overbearing. He denies that he ever mistreated the children and says that C.G. has resorted to “mud-slinging.”

88. On January 28, 2020, according to W.D., S.S. engaged staff at the children’s daycare in a casual conversation about the propriety of “beating” children, stating: “Women and children have too much power in this country.” There were children around during this interaction.

89. Two days later, on January 30, 2020, after a disagreement with daycare staff, S.S. yelled: “Black women should know their place” and said that “there are a lot of single Black moms because Black women do not know their place.” Parents who were picking up their children told W.D. that they saw S.S. yelling at C.S. and S.S. while putting them into the car. W.D. described the incident as “violent” and “disturbing”. S.S. was asked not to attend at the daycare anymore, though he still showed up afterwards.

90. In his reply affidavit, S.S. denies the substance of W.D.’s recollections, but offers various explanation for the comments and his behaviour ranging from them having been a joke, having taken place during a heated conversation about the daycare blocking his access, and/or having been taken out of context. At the hearing, S.S.’s counsel argued that the comments about Black women were not as damaging in the context of both S.S. and R.S. being Black. I reject this outdated notion.

91. In any event, from the children’s perspective, all of this is besides the point. S.S.’s comments would have been distressing and confusing to the children, and both children would have known that it was not appropriate for their father to talk to their caregivers this way. When S.S. yelled at them in front of their friends and the other parents, they would have likely felt ashamed and sad. Given his age, C.S. would likely have had some awareness that his father’s comments about Black women were directed at his mother and were wrong.

92. I now turn to S.S.’s argument that R.S. has engaged in family violence. For the purposes of this motion, I refuse to find that R.S. engaged in family violence that is relevant to my assessment of the children’s circumstances. The specific incidents S.S. points to relate to private communications between R.S. and J.R., which would not have been shared or accessed by the children, given their ages. He provides no details about other specific, credible incidents. There is simply no evidence before me to suggest that the children were subject to violence directly by R.S. or exposed to family violence in the care of R.S..

Outstanding criminal charges

93. After R.S. complained to Peel police, on August 12, 2019, S.S. was criminally charged in relation to incidents that allegedly occurred during his marriage to R.S. and after their separation in May 2018:

• Sexual assault, in relation to an incident on November 27, 2017, when S.S. allegedly forced R.S. to engage in oral sex;

• Assault, in relation to an incident on October 16, 2018, when S.S. allegedly slapped and punched R.S.;

• Utter threats to cause death, in relation to the newspaper incident on July 12, 2019;

• Sexual assault, in relation to an incident on July 18, 2019, when S.S. allegedly forced R.S. to have sexual intercourse; and

• Assault, in relation to the choking incident on August 12, 2019.

94. S.S. denies the allegations and states that R.S. made false reports to the police. The charges are pending before the criminal courts, and S.S. was released on conditions not to contact R.S..

95. In October 2020, S.S. complained to police and R.S. was charged with criminal harassment in relation to S.S. and J.R. R.S. says that the criminal charge relates to her following S.S. and J.R. on the weekend that S.S. refused to return the children in September 2020.

96. R.S. was released on conditions not to contact S.S. or J.R. Her charges are also pending before the criminal courts.

Children’s views and preferences

97. There was no direct evidence before me about the children’s views and preferences. However, that does not end the matter. I must still consider other evidence that may be indicative of their current views and preferences.

98. Both R.S. and C.G. recall a handful of specific incidents, when C.S was around six years old, where he refused to attend at S.S.’s parenting time because he wanted to stay with his mother. They say that C.S. was both scared of S.S. and clingy with R.S. Most of these incidents took place around the time of separation, which would have understandably been a difficult time for C.S.

99. H.G. also recalls C.S. refusing visits on two occasions because he was on his iPad. H.G. believes that R.S. has been coaching and alienating the children from their father because she overheard the children start sentences with, “Mommy said…”.

100. In any event, since access resumed in January, there has been no indication that C.S. has been unwilling or hesitant to have short visits with S.S..

101. All the information before the court suggests that S.S. is happy being cared for by all the adults in her life.

Public health considerations

102. After the first COVID-19 lockdown, between April and May 2020, R.S. sometimes denied S.S. parenting time because H.G. would not assure her that their household was following public health guidance.

103. Both parties are now committed to abiding by COVID-19 protocols. However, R.S. does not want S.S. to take the children to J.R.’s residence because she says that this increases the children’s contacts to individuals outside their current two households.

The children’s best interests

104. I now move to the second stage of my analysis, where I consider the children’s best interests in light of their current circumstances. I note that I must give primary consideration to the children’s physical, emotional and psychological safety, security and well-being.

105. The children are young. They need a stable home life that involves spending appropriate and predictable amount of quality time with all their family members, staying enrolled in their current school and daycare, and consistency in terms of who picks them up and drops them off from visits, school, and daycare.

106. The children are clearly attached to their mother and should stay in her primary care. This will allow them to spend quality time with C.G. as well. For the time being, at least while the matter is before the courts, R.S. should continue to make decisions for the children in accordance with their best interests. That said, S.S. should be allowed to receive information about the children directly from their school, doctors, et cetera.

107. Based on the limited evidence before me. I find on a balance of probabilities, and for this motion only, that S.S.’s conduct during and after the marriage is properly considered “family violence” within the meaning of the new Divorce Act. Specifically, I find that he has engaged in corporal punishment in relation to C.S., humiliated and belittled C.S., and yelled at both C.S. and S.S.

108. The children have also been regularly exposed to S.S.’s anger and violence towards R.S., C.G. and the staff at their daycare. These incidents peaked around the time of separation in 2019. The criminal non-contact orders, which the parties appear to be abiding by, are a safeguard in terms of ensuring the children are not exposed to further incidents of violence.

109. Peel CAS does not have any current protection concerns, and there is no evidence to suggest that S.S. is currently abusive towards the children or that the children are currently being exposed to violence whether directly or indirectly. Indeed, R.S. is comfortable with the children spending time with him, including overnight, without supervision.

110. With a better understanding of C.S. and S.S.’s unique circumstances, I find that it is in their best interests to increase S.S.’s parenting time gradually, and with appropriate conditions on overnight access. All visits should take place at H.G.’s home, which is a stable, safe, and familiar environment. This will further strengthen the children’s bond with H.G. as well.

111. The parenting-time exchanges should generally be facilitated by H.G., from R.S. or S.S.’s residence, respectively, and, if R.S. agrees, from their daycare directly during the week. The overall goal is to minimize the number of “transitions” (from one location to another, or one person to another) during the day.

112. It is in the children’s interests for all members of their two households to continue to abide by public health guidance. I note that the current public health guidance requires residents of Peel to limit social gathering to a single household: Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, O. Reg. 82/20, Sched. 6, s. 4. Modifying as appropriate, the children’s visits with S.S. should be limited to H.G.’s home. He shall not expose the children to J.R.’s home at this point in time.

113. That said, I think it is important for the children to develop a relationship with their half-brother, J.S. I agree with S.S. that it will be important for the children to be exposed to J.S. whether or not R.S. likes it or accepts it. J.S. is part of the children’s extended family and the bond between the three siblings should be encouraged while they are still young.

ORDER

114. Overall, R.S.’s proposed schedule is most consistent with the children’s best interests at this point in their lives and at this stage of the proceedings. The only modification I would make would be to allow the children to spend time with their half-brother, J.S.

115. I order the following, on a temporary basis, pending further court order or final agreement between the parties:

a. The children shall remain enrolled in their current school and day care;

b. The children’s primary residence shall be with R.S.;

c. S.S. shall have the right to consult with and obtain information, records, and report cards directly from professional service providers including, but not limited to, the children’s teachers and doctors. Both parties shall sign any related, necessary consents immediately upon request through their counsel.

d. Both S.S. and R.S. shall communicate about parenting time through their counsel, and shall strictly adhere to their bail conditions;

e. S.S. shall have parenting-time with the children pursuant to the following schedule and under the following terms:

i. Commencing Saturday, March 27, 2021, and every other Saturday thereafter, from 4:00 p.m. to 7:00 p.m., with the children being picked up and dropped off at R.S.’s residence by H.G..

ii. Commencing Wednesday, March 31, 2021, and every other Wednesday thereafter, from 5:00 p.m. to 7:00 p.m., with the children being picked up and dropped off at R.S.’s residence by H.G., unless R.S. agrees to the children being picked up by H.G. directly from their daycare.

iii. Commencing the Friday of April 3, 2021, and every other Friday thereafter, S.S. shall have overnight parenting time with the children from Friday at 5:00 p.m. until Saturday at 7:00 p.m. or, if the following Monday is a Statutory Holiday, until Sunday at 7:00 p.m., with the children being dropped off and picked up at R.S.’s residence by H.G. All overnight parenting time shall take place at H.G.’s residence.

iv. There shall be no make-up time if S.S. cancels his Saturday or Wednesday parenting time. He must negotiate in advance, and through counsel, for make-up time if he expects to miss his parenting time on Fridays.

v. S.S. may have additional parenting time if R.S. agrees. S.S. must request additional parenting time in writing through counsel, with appropriate notice.

f. If S.S. is not available to be physically present with the children during his parenting time, H.G. shall advise R.S. within two hours of the scheduled pick-up time. The children shall remain in the care of R.S. unless she decides otherwise.

g. During his parenting time, S.S. may arrange for the children’s half-brother, J.S., to attend at H.G.’s house to play and interact with the children. Given J.S.’s age, J.R. shall be permitted to attend as well.

h. During their respective parenting time, S.S. and R.S. shall strictly follow the Province of Ontario’s COVID-19 guidelines and shall endeavour to ensure that the members of their household do so as well. They shall advise each other forthwith if they, the children, or any members of their respective households, or the household of J.R., are exposed to or begin to exhibit any symptoms of COVID-19.

i. Neither party shall speak negatively about the other parent in front of their family members or in the presence of the children.

COSTS

116. S.S. brought this as an urgent motion after R.S. unilaterally denied him parenting time. S.S. did not see his children from October 2020 until January 2021, a period of four months.

117. R.S. originally opposed his motion on the basis that it was not urgent. S.S.’s parenting time was only reinstated by temporary court order. At the hearing before me, R.S. finally agreed to the children having at least some parenting time with S.S..

118. In these circumstances, I find that success was divided, and that no costs shall be payable to either party.

Mandhane J.

DATE: March 22, 2021

COURT FILE NO.: FS-20-99047

DATE: 2021 03 22

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

S.S.

Applicant

• and -

R.S.

Respondent

ENDORSEMENT

Mandhane J.

DATE: March 22, 2021

[^1] The definitions, test, and factors set out in the new Divorce Act are mirrored in the recently amended Children’s Law Reform Act, R.S.O. 1990, c. C.12, which also came into force on March 1, 2020. Therefore, for ease of reference, here I refer only to the new Divorce Act.