COURT FILE NO.: FC-16-FO000903-0000
DATE: 2021-03-29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANA MARIE FREITAS
Applicant
– and –
GERALD MESHACH CHRISTOPHER
Respondent
Brian R. Kelly, counsel for the Applicant
Barry T. Paquette, counsel for the Respondent
HEARD: November 23 – 27, 2020, December 15, 2020
THE HONOURABLE MADAM JUSTICE D. PICCOLI
REASONS FOR DECISION
Corrected decision: The correction was made on June 4, 2021.
There was a typographical error made on page 55, paragraph [263] (which begins on page 54), subparagraph 4, which reads “The Respondent Father shall pay to the Applicant Mother, child support in the sum of $582.00 per month commencing January 1, 2020 ….”
A correction has now been made to change that sentence to read “The Respondent Father shall pay to the Applicant Mother, child support in the sum of $582.00 per month commencing January 1, 2021 ….”
Introduction:
[1] This trial was about the parenting schedule during the school year and the Easter weekend, providing notification should the child leave the Region of Waterloo, and child support arrangements for the parties’ 5-year-old son (Jack).[^1]
[2] During opening statements, I was advised that the Applicant, Ana Marie Freitas (“Mother”), and the Respondent, Gerald Meshach Christopher (“Father”), had resolved several issues by way of partial minutes of settlement dated March 13, 2020, which were made Exhibit 1 at the trial.
[3] During the break on the first day of trial, the parties were able to resolve other issues which resulted in the supplementary partial minutes of settlement dated November 26, 2020.
[4] On November 27, 2020, the parties were able to resolve arrears/retroactive child support.
[5] Father brought a motion returnable at the commencement of the trial seeking to, among other things, strike the Mother’s pleadings. This motion was resolved prior to the trial by Mother paying the costs ordered by Justice MacLeod of $15,000.00.
[6] In January 2021, I was advised by the trial co-ordinator that the Mother was bringing a motion seeking to re-open the trial. The parties appeared before me to speak to the matter on January 21, 2021. On that date the matter was adjourned to a date to be set by the trial co-ordinator. The parties attended a settlement conference on January 22, 2021, and pursuant to the Order of Justice Walters of January 22, 2021, the parties resolved and disposed of the Mother’s motion to re-open the trial, agreeing to the following:
The Respondent’s address is 7 Hearthbridge Street, Kitchener, Ontario N2R 1L5. The Respondent shall provide his address within three business days to the Applicant of any future change in address.
The Respondent acknowledges that the retroactive child support of $5,268.00 has not been paid.
The following documents shall be removed from the Continuing Record:
Notice of Motion of the Applicant dated January 12, 2021.
Affidavit of the Applicant dated January 18, 2021.
Affidavit of the Respondent dated January 20, 2021.
[7] Accordingly, the issues that I was asked to decide are as follows:
The parenting schedule during the school year;
The parenting schedule for the Easter weekend;
Mother seeks an Order that the parties shall disclose, one to the other, the details of any travel with Jack out of the Waterloo Region prior to leaving the Region;
The Respondent’s income for child support;
Child support and the proportionate sharing of s.7 expenses; and
Costs.
Brief Background:
[8] Mother is 37 years of age and Father is 49 years of age.
[9] Mother and Father started dating in 2011. They commenced cohabitation in September 2011 according to Mother and July 2014 according to Father. They separated on October 13, 2016. They did not marry.
[10] Mother and Father have one child together, Jack, who was born April 12, 2015. Jack was one and a half years of age when the parties separated and five and one-half years of age at the time of the trial.
[11] Father was previously married to Tracy Stairs (“Tracy”). Father and Tracy met in 1989, dated for seven years and were married for six years. Father and Tracy divorced sometime between 2005 and 2007. Tracy was a witness in this trial. Father and Tracy have one child together, Cameron, who is 19 years of age. Father states that he and Tracy were able to resolve matters amicably and that Cameron was in his care at least fifty percent of the time until September when Cameron started college.
[12] Mother’s extended family, namely her parents, her sister and her two brothers, all reside in the Kitchener-Waterloo Region. Mother states they are a close family.
[13] Father’s parents and sister reside in Newfoundland. He has two other sisters, one lives in Victoria, British Columbia and the other in Belleville, Ontario. He has a brother who resides in Kitchener, Ontario. Father states that despite the geographical distance they are a close family. Cameron attended Newfoundland every year to visit his extended family.
[14] Father is a Sergeant with the Waterloo Regional Police Services. He has been employed with the Waterloo Police Service since July 19, 1999. Father was suspended from his employment, with pay, on January 19, 2017. He has been suspended without pay since May 31, 2019. The suspensions relate to criminal charges, discussed below. Father has had two jobs since his suspension without pay. The first was with Amazon for a few weeks starting in October 2020. The second is with Canada Post, which he started on November 22, 2020, and where he was employed when the trial commenced.
[15] Mother is an employee of the University of Waterloo and has been for the last ten years. In 2012 she became an integrity officer in the Faculty of Mathematics. Since January 2020, Mother has been off work on a disability leave. Prior to her employment at the University of Waterloo, Mother was a legal assistant for a criminal defence lawyer and before that an employee of Hope Manor.
[16] On October 13, 2016, the parties separated. The Mother moved with Jack from the family home to her parents’ home and shortly thereafter she and Jack moved into a women’s shelter from October 21, 2016, to October 23, 2016.
[17] It is Mother’s position that Father has been extremely abusive of her, including but not limited to physical abuse, verbal abuse, sexual assault, and threats to her life and body. She further states that Father was verbally and physically abusive towards Cameron, and that during their time together he exhibited similar behaviour towards Jack. She states that it is because of this abusive behaviour that she left the family home with Jack.
[18] The Father was charged criminally with the following:
Section
Charge
Relation
266
Assault
May 25, 2013
266
Assault
October 6, 2013
267(a)
Assault with a weapon
October 6, 2013
266
Assault
July 19, 2014 – July 31, 2014
266
Assault
July 19, 2014 – July 31, 2014
271
Sexual Assault
July 19, 2014 – August 1, 2014
266
Assault
November 1, 2014 – November 30, 2014
266
Assault
January 1, 2015 – March 31, 2015
145(5.1)
Fail to comply with undertaking
January 19, 2017 – January 28, 2017
145(3)
Fail to comply with recognizance
June 19, 2017
127
Disobey Court Order
June 19, 2017
[19] Father was found guilty of the following charges in respect of which Mother was the victim:
(a) assault CC 266 x 3;
(b) assault with a weapon;
(c) breach OIC undertaking;
(d) breach recognizance; and
(e) disobey Order.
[20] Father was sentenced to 85 days in jail on May 31, 2019. He has appealed his conviction and sentence. At the time of this trial, the appeal had not been heard.
[21] On October 26, 2020, Father was arrested again and charged with breach of probation in relation to communications with Mother through Our Family Wizard.
[22] Prior to the charges in relation to Mother, Father was charged in 2010 and thereafter convicted of assault against another person with whom he was in a relationship. He received a six-month conditional discharge.
[23] I have been provided with nine “relevant Orders” in the trial record as follows:
October 26, 2016 Ex Parte Order of Justice Neill (temporary without prejudice) as a result of an ex parte motion brought by Mother awarding her primary residence and access to Father be supervised and further prohibiting communication and a sealing Order.
October 26, 2016 Ex Parte Order of Justice Rogers restraining Order Form 25G prohibiting contact or communication by Father with Mother or Jack except to permit access as per Justice Neill’s Order of the same date.
November 9, 2016 Order of Justice Caspers providing that on an interim without prejudice basis the Father would have access with Jack each Friday from 10:00 a.m. until 6:00 p.m. supervised by Kay Christopher and/or Lisa Christopher. Orders also were made with respect to pick up and drop off, as well as Orders amending portions of the ex parte Order.
April 11, 2017 Order of Justice Nevins, on consent, providing that the Mother has sole custody of the child, Jack, and the Father have access as follows:
(a) each Monday and Friday from 9:00 a.m. to 6:00 p.m., with an exception on April 24, 2017;
(b) each Sunday commencing July 2, 2017, from Sunday at 6:00 p.m. to Monday at 6:00 p.m.; and
(c) additional access was provided for the child’s birthday, Father’s Day, Christmas, and such further and other times as agreed.
The access was unsupervised, and the Father was entitled to obtain information and documentation directly from Jack’s care providers.
An access exchange location was provided, limitations were placed on communication.
October 11, 2017 Justice Caspers made further Orders for access, which included each Monday and Friday from 9:00 a.m. to 6:00 p.m. and each Sunday from 6:00 p.m. to Monday at 6:00 p.m., additional access on the child’s birthday, Father’s Day, Christmas, and such further and other access as may be agreed through counsel. Access exchange location was set, and Kay Christopher was responsible for collecting Jack and returning him following access.
December 13, 2017 Justice Caspers made an Order for Christmas access and varied where the pick up and drop off locations would be. The Office of the Children’s Lawyer was requested to represent Jack.
December 20, 2019 Justice MacLeod made the following interim Order:
(a) Jack shall be in the Father’s care week 1, Monday after school to Tuesday morning to school;
(b) Week 2, Thursday after school to Friday morning to school;
(c) Alternate weekends from Friday after school until Monday to school;
(d) Christmas holidays for 2019 and 2020, December 22 at 10:00 a.m. to December 23rd at 7:00 p.m.;
(e) Christmas Day from 10:00 a.m. until Boxing Day at 7:00 p.m.;
(f) December 29th at 10:00 a.m. to December 31 at 7:00 p.m.
Pick up and drop off at school wherever possible and an acknowledgement that Mother resides within 250 metres of the child’s school and pick up and drop off by dad at school is not a violation of his probation Order.
January 17, 2020 Justice MacLeod clarified his Order of December 20, 2019, to indicate that the Father did not require a designate when picking up or returning the child to school.
Parents’ Positions Regarding Parenting Schedule During the School Year
[24] Mother seeks a final Order that the parenting schedule be consistent with the interim Order of Justice MacLeod dated December 20, 2019. Namely, she seeks an Order that Jack be in the Father’s care during the school year as follows:
(i) Week 1: Monday after school or, if no school, 2:50 p.m. to Tuesday morning return to school or 8:20 a.m. if school is not in session.
Friday after school, or if no school, 2:50 p.m. until Monday return to school or if no school until 8:20 a.m.
(ii) Week 2: Wednesday after school or 2:50 p.m. if there is no school, to Thursday morning return to school or 8:20 a.m. if no school.
[25] Father seeks a final Order that the parenting schedule afford the parties equal time with Jack. Specifically, he seeks an Order that Jack be in his care during the school year as follows:
(i) Week 1: Monday after school to Wednesday morning return to school.
Friday after school until Monday return to school, or Tuesday if Monday is a holiday.
(ii) Week 2: Wednesday after school to Friday morning return to school.
[26] Both parties have agreed that any Order made by this Court is “open for review any time after May 31, 2022, and either parent may argue the issue of material change in circumstances at the time of such proposed review”.
[27] In closing submissions, the Mother asked that if I order the parenting schedule Father requests, that I confirm that the consent the parties entered into is in fact a sole custody Order. She states that this determination has an impact on how time is calculated under s. 9 of the Child Support Guidelines, O. Reg. 391/97 (the “Guidelines”).
[28] Father states that during the relationship and post-separation, he wanted to be a more involved parent, but that Mother purposefully interfered with his relationship with Jack. It is his position that the initial ex parte Orders created problems and an artificial status quo. He further notes that access was denied to him in the face of a valid Court Order in June 2017, August 2017, and September 2019. Mother has, over the course of this litigation, been ordered to pay approximately $77,000.00 in costs to Father. Father states that it has always been his intention to parent Jack equally, as he did with Cameron post-separation. Although Father admits to assaultive behaviour, he denies the assaults he has been charged with and convicted of.
[29] Mother states that although she agrees that Father loves Jack, he has an explosive and unpredictable temper that has caused her to fear for her safety and the safety of Jack. She states that any contravention of Orders has been motivated by her concerns for Jack, or, in respect of August 2017, to ensure that the terms of Father’s release were adhered to.
[30] Mother states that despite her efforts, Father remains uncooperative and uncommunicative or, alternatively, psychologically abusive towards her and this makes parenting a young child with Father difficult. She states that she should remain the primary caregiver for Jack as she is best positioned to do so. She states that the Father’s focus is on what he perceives to be his rights in respect of Jack, as opposed to focusing on Jack’s best interests. She argues that when coupled with the inability to control himself, his emotions, his anger and his long-term domestic violence, Father is incapable of meeting Jack’s best interests.
Witnesses and Credibility Findings:
[31] The Mother testified and called the following witnesses: her sister Christina Whittingham (“Christina”) and her friend Edward Hyde (“Ed”).
[32] The father testified and called his previous spouse, Tracy.
[33] I found Christina to be credible. Her evidence corroborated that of the Mother as it pertained to Mother’s relationship with, and parenting of, Jack and Father’s dislike of the maternal family. She answered the questions posed in a straightforward manner.
[34] I also found Ed to be credible. He provided his evidence in a straightforward and sincere manner. His evidence corroborated that of Mother and Christina as to Mother’s relationship with Jack. It is clear that he spends a lot of time with Jack.
[35] I did not find Tracy to be credible. Her dislike of Mother was evident in how she spoke of her and how she blamed her for the breakdown in her relationship with Father. Further, it is clear, following her cross-examination, that the relationship she depicted as between herself and Father post-separation was inaccurate for reasons set out below.
[36] Where the evidence of the Mother and Father contradict, I accept the evidence of Mother. Overall, I find that she provided her evidence in a forthright manner, answered the questions posed to her, and readily admitted her mistakes. Father, on the other hand, was at times evasive and untruthful. In cross-examination, and with the production of exhibits, some of his answers changed. When text messages exchanged between Tracy and him were presented, his initial response was that he did not recall sending them. His further response when pressed was that his relationship with Tracy deteriorated only during the time that he was with Mother as Mother despised Tracy. It was clear that Father continues to harbour ill will against Mother. He insists that it is only “fair”, and that he is “entitled”, to equal parenting time with Jack. Father’s continued denial of the domestic violence and his breaches are illustrative of a disturbing pattern of conduct and lack of insight. Although Father asserts that he accepts blame for his assaultive behaviour, his actions indicate otherwise.
The Legislation
[37] On March 1, 2021, amendments to the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), contained in the Moving Ontario Family Law Forward Act, 2020, came into force. I invited the parties to make submissions with respect to whether those amendments apply given that I had not released my decision by March 1, 2021. Both lawyers agree that the amendments apply to this decision. See L.B. and P.E., 2021 ONCJ 114, at paras. 31-45; Cook v. Rosenthal, 2021 ONSC 1653; and Pereira v. Ramos, 2021 ONSC 1737.
[38] Both lawyers submitted that the result in this case would be the same regardless of whether the amendments applied and that many of the amendments are a codification of existing jurisprudence. The amendments modernize the best interests language. In their submissions on this issue, Mother placed emphasis on the codification of family violence in the amendments to the CLRA. Father placed emphasis on the codification of the maximum contact principle and each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent. They agree, however, that all relevant factors concerning a child’s best interest have been and will continue to be considered by the Courts.
[39] I agree with counsels’ submissions on this issue. The result in this case would be exactly the same regardless of whether the Court applied the best interests considerations of the CLRA as it read before March 1, 2021, or the best interests considerations set out in the amendments to the CLRA.
[40] As the parties have resolved the issue of decision making, I will not recite those provisions of the amendments to the CLRA.
[41] The relevant provisions of the legislation to this case are:
Best interests of the child
24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.
Primary consideration
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
Factors
(3) Factors related to the circumstances of a child include,
(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 parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(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 co-operate, in particular 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 co-operate 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.
Factors relating to family violence
(4) In considering the impact of any family violence under clause (3) (j), the court shall take 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 the person’s ability to care for and meet the needs of the child; and
(h) any other relevant factor.
Past conduct
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child.
Allocation of parenting time
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.
Application to related orders
(7) This section applies with respect to interim parenting orders and contact orders, and to variations of parenting orders and contact orders or interim parenting orders and contact orders.
Impact of Subsections Relating to Family Violence on the Best Interests’ Determination
[42] As can be seen in the new statutory language, Courts are explicitly directed to consider family violence in the determination of the parenting arrangements that are in children’s best interests. See ss. 24(3)(j) and 24(4), above.
[43] Family violence has always been relevant to the determination under s. 24 of the CLRA. In Baran v Baran, 2019 ONSC 2653, at para. 53, Sproat J. stated that “domestic violence will usually impact on the Court’s determination as to whom should be assigned primary care of a child. It is one factor, albeit a significant one, which determines the best interests of the child.” At para. 57, Sproat J. further found that the father’s “domestic violence and verbal abuse demonstrate[s] an inability to problem solve in a healthy manner, a lack of impulse control and a lack of respect for [the mother]. This impairs his ability to provide an appropriate example to [the child].”
[44] Similarly, in Ganie v. Ganie, 2014 ONSC 7500, at para. 182, Price J. quotes B. MacDonald J. in LeBlanc v. Khallaf, 2010 NSSC 219, 87 R.F.L. (6th) 168 as follows:
The negative effects of domestic violence on children are well known. The perpetrator of domestic violence poses a risk of harm to children even after the perpetrator and victim have separated, and even if the perpetrator has not physically assaulted the children. B. MacDonald J. has described this risk in a number of decisions, including LeBlanc v. Khallaf, where she stated:
Children are harmed emotionally and psychologically when living in a home where there is domestic violence whether they directly witness the violence or not. Exposure to domestic violence is not in the best interests of children and those who are the perpetrators of domestic violence, who remain untreated and who remain in denial, are not good role models for their children. The fact that there is no evidence the perpetrator has actually harmed the child is an insufficient reason to conclude the perpetrator presents no risk to his or her child. One risk is that the perpetrator will continue to use violence in intimate relationships to which the child will be exposed in the future. Another is that the child may model aggressive and controlling behaviour in his or her relationships with others. There are many other risks some of which are summarized on the Government of Canada Department of Justice website providing information about spousal abuse. [Emphasis by Price J.]
[45] The amendments to the CLRA now provide a non-exhaustive list of factors the Court is to consider with respect to family violence. That said, the provisions reproduced above clearly show that a judge is required to consider a myriad of factors when determining the best interests of the child under s. 24, of which family violence is one. Accordingly, I will address the relevant sections below.
Nature and strength of the child’s relationship with each parent, siblings, grandparents and any other person who plays an important role in the child’s life; cultural and spiritual upbringing
[46] Sections 24(3)(b) of the CLRA requires a judge determining the best interests of the child to consider the nature and strength of the child’s relationship with each parent, sibling, and grandparents, as well as any other person playing an important role in the child’s life. Section 24(3)(f) requires consideration of the child’s cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage. Both sections are applicable here.
[47] Neither parent disputes that Jack has love and affection for the other parent.
[48] Mother agrees that Jack loves his Father and his Father loves him. She agrees that Jack is happy with his Father. Her concern is that Father has an explosive temper and up and down mood swings. She is concerned that Jack does not feel comfortable expressing himself to Father and that Father’s continued animosity towards her will undermine her relationship with Jack.
[49] The Office of the Children’s Lawyer prepared a “Discontinued Report of the Children’s Lawyer” dated July 18, 2018 (“OCL Report”), which was not completed as Mother requested that “the criminal court matter, currently before the Courts, conclude prior to any recommendation being made”. What is present in the OCL report does, however, make it clear that Jack and his Father love each other, and that Jack has a close connection with his brother, Cameron. The clinician describes Jack as “an endearing, happy three-year old boy” who presented as healthy and content in his respective homes.
[50] Mother agrees that Jack and Cameron share a strong bond and have an excellent relationship. She refers to Cameron as “a wonderful big brother to Jack” and notes that Jack idolizes him.
[51] Mother states that she has always had a good relationship with Cameron but is reluctant to have on going communication with him since the separation as Father will become upset with her. Father has accused her of manipulating Cameron. It is clear from Mother’s comments that she welcomes Cameron as part of Jack’s life and will encourage that relationship.
[52] Mother agrees that Jack has a good bond with all of his grandparents.
[53] Mother advises that she loves Father's parents, and they are welcome in her home. She gets along well with them. Since separation, her relationship with the paternal grandfather is better. She is more hesitant around the paternal grandmother, as a result of the criminal trial. In the emails through Our Family Wizard, Mother states “[a]gain, I have no problem at all with Jack calling his grandparents ever but I just don’t want you thinking I disobeyed your request. They are always welcome to call my cell to speak with him.”
[54] Jack and his maternal grandparents share a special bond – Jack and Mother lived with them for a period of time post separation and they have provided childcare for Jack when Mother was not available and pre-COVID.
[55] Christina, Jack’s maternal aunt, who was a witness in this trial, interacts with Jack frequently, save and except during COVID. She describes a very positive relationship between Mother and Jack. Christina has attended access exchanges which she describes as very stressful. Mother is very nervous. Jack is quiet or nervous and sad.
[56] Jack has cousins on Mother’s side of the family, and he is close with those cousins who range in age from 3 to 20. Mother gave evidence of the types of support provided by her family which ranges from bringing food to fixing things around her home. It is clear that she has a close and loving family and that prior to COVID they spent a lot of time together. The Mother’s family have provided both emotional and financial support to Mother and Jack.
[57] Jack is being taught to speak Portuguese by Mother’s family.
[58] Both Mother and Father are Catholic.
[59] Ed, Mother's friend, testified that he has known Mother for some time - they dated for 6 months, 10 years ago. They reconnected as friends’ post-separation. He testified that the world would be a much better place if everyone had a Mother like Ana. He said she is kind, caring, compassionate, and teaches him to be tolerant. He described the accolades Jack has received at school. He further testified that Jack attended with him to visit his own Mother in a nursing home and that Jack was very kind to the residents of the home, turning pages for a senior resident who could not turn the pages for herself. He described that he has never witnessed Ana speak ill of Father, or his family, in Jack's presence. He has witnessed her trying to speak positively about Father. She always encourages Jack to go and have fun with Cameron. Jack is a healthy happy boy.
[60] It was clear from the evidence of both parents and Christina, as well as the electronic communication, that Father does not have a good relationship with Mother’s family. He clearly dislikes Christina. Christina advised that Father reported her to police because he thought she was following him around town when in fact she was in Clearwater, Florida. Even prior to separation Father attended limited family functions and he did not attend Sunday lunches.
[61] In an email communication through Our Family Wizard on September 21, 2020, Father states “I want nothing to do with you or your family anymore than you want anything to do with me. Your sister and family are far from innocent in all of this mess.” It is clear that Father will not promote a relationship between Jack and maternal family.
[62] Mother has the support of extended family, including her parents, her brothers and sisters-in-law, Christina and her friend Ed.
[63] It is clear from the evidence that the child loves both his parents and extended family. He is especially close with his maternal grandparents, Cameron and Ed.
Child’s Views and Preferences
[64] Section 24(3)(e) requires that a Court consider the views and preferences of the child where they can be ascertained, having regard to the child’s age and level of maturity.
[65] In this case, Jack is only five and one-half years old. Neither party attempted to tender evidence of Jack’s views and preferences. This is appropriate given his young age.
[66] Section 24(3)(d) and (g) require a consideration of the history of care of the child and the plans for care of the child.
[67] The parties have different views on their respective level of involvement with Jack before separation.
[68] Mother was on maternity leave from March 2015 to May 2016. Mother states that both before and after the maternity leave, she was the primary care parent.
[69] Father states that he wanted to take a paternity leave, but that Mother did not agree. Mother states that he did not offer to take a parental leave. In either case, Father continued to work for the year that Mother was on maternity leave.
[70] Father describes that for the first 8-12 months after Jack was born, his crib was set up in the master bedroom, that he would get up in the night to change Jack’s diaper, that he would bring Jack to Mother to nurse and that he would bath Jack alone or with Mother. Father states that he bought Mother a breast pump which she did not even take out of the box. Father states that once food was introduced, he helped feed Jack.
[71] Not surprisingly, Mother denies Father’s involvement. She states that Father mostly slept in the basement for the first year that Jack’s crib was in the master bedroom, that she was nursing Jack, and that Father may have bathed him a few times but she was present. She states Father worked and continued to enjoy his own activities.
[72] I find that Mother was the primary care parent to Jack while she was on maternity leave. Father continued to work full time during this period.
[73] Father states that after Mother’s maternity leave ended, Jack went to daycare three days per week and that either Mother or Father was able to care for Jack two days of the week for financial reasons. He stated he was not treated like a Father but rather treated “like a babysitter”.
[74] I note that the letter from the daycare dated September 27, 2016, supports Mother’s position that Jack was registered for daycare and attended day care five days per week with a start date of September 19, 2016.
[75] The parties separated approximately six months after the Mother’s return to work.
[76] From the date of separation to the present, there is no dispute that Mother has been Jack’s primary caregiver.
[77] It is the Father’s position that after the separation, he wanted to be fully involved in Jack’s life, as he had been in Cameron’s. He states that Mother created the status quo and has made it difficult for him to have a meaningful relationship with Jack.
[78] He states that the ex parte motion brought by Mother in October 2016 created problems from the beginning and this, coupled with his position as a police officer, delayed Court matters and the proper hearing of the matter.
[79] Currently, Mother and Jack reside in a three-bedroom home with a fenced in yard. Each has their own bedroom. The third bedroom is a combination playroom for Jack/spare bedroom. They own two rescue cats.
[80] In 2018, Mother moved to this residence to be close to one of the top-rated schools in the city. Jack attends that school. Mother’s home is a two-minute walk from the school.
[81] Jack commenced school in September 2020 and by all accounts is doing well.
[82] Mother is involved at the school. She is on parent council; she participated in fund raisers and volunteers her time.
[83] Mother has been involved in an array of volunteer work. She has exposed Jack to various organizations, and as such Jack has participated in volunteering for Operation Shoe Rack, Out of the Cold, and Soup Kitchen. Jack has assisted in creating care packages for homeless people.
[84] Mother has taken several courses and has received certificates from these online seminar courses to assist Jack with development, particularly during COVID. She homeschooled Jack from March to June 2020. She is clearly committed to Jack’s emotional, religious and educational development.
[85] In addition, Mother has taken Jack to several cultural events, including aboriginal ceremonies, drumming ceremonies, drag queen story time, multicultural festivals, and Portuguese festivals. She wishes to expose him to different cultures, religions and experiences. It is important to Mother that Jack accept people for who they are without judgment.
[86] Mother and Jack are involved in the Portuguese community.
[87] Jack has a job as a toy tester for Scholar’s Choice. He tests toys by rating them. His remuneration is in coupons. Jack also participated in reaction and reflect, and he received a $50 gift certificate to Mastermind Toys.
[88] Mother describes Jack as “a very good boy” who is respectful and helpful to people, even those different from himself.
[89] The evidence is clear that Mother has parented in such a way as to promote her stated goal that Jack be a confident, kind, empathetic, and open-minded human being.
[90] Father describes Jack as a high energy, rambunctious boy who likes to play outside. He is a “happy boy” who loves his Father and his brother, Cameron.
[91] At the time of trial, Father lived in a four-bedroom townhome which was situated within the vicinity of two schools and parks.
[92] There is no dispute that until December 2019, Father has had limited opportunities to parent Jack since separation.
[93] Father now has an established routine with Jack. He has described his relationship with Jack in glowing terms. Father engages in a number of activities with Jack which encourage play.
[94] Mother admits that Father has always wanted more time with Jack. Although Mother agrees that Father has had limitations in terms of being involved with Jack’s schooling, his healthcare, and his religious education, she notes that he has had almost one year and has shown no desire to get involved in Jack’s schooling. She also notes that despite Jack’s doctor being available until 6:00 p.m., Father has chosen to take Jack to the walk-in clinic on the two occasions he required medical care while in Father’s care. Finally, she notes that he has not taken Jack to church.
[95] I find that Mother has been the child’s primary caregiver since birth. Mother provides a good and stable home environment. She has ensured the child is exposed to various cultural activities, is involved in volunteer activities, and is raised in a home that embraces people’s differences. She has taken care of his educational, medical, emotional, and physical needs.
[96] Despite that and given the long history of issues with Father’s parenting time, I must address Father’s concerns in relation to his limited access to Jack and Mother’s denial of access in the face of a Court Order.
Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent and ability and willingness of each parent to care for and meet the needs of the child and to communicate and co-operate in particular with one another, on matters affecting the child
[97] Section 24(3)(c) requires consideration of each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent. Section 24(3)(i) addresses the ability and willingness of each parent to care for and meet the needs of the child as well as communicate and co-operate, in particular with one another, on matters affecting the child.
[98] In this case, Father states that after Mother left, he was on a seven night rotation, that he reached out to her to see Jack and even offered to stay in the park, but she would not agree. He states he begged Mother not to go through Court with lawyers and that he just wanted to see Jack.
[99] Mother explains that given the abuse, she felt her only option was Family Court. She had been in contact with Fairway Mediation and due to the domestic violence, she and Father were not candidates for mediation.
[100] Mother admits that she did not agree to expand access during Christmas 2016 or March Break 2017. She did facilitate Father’s Day access.
[101] It is clear that the ex parte motions which resulted in the two Orders in October 2016, were improperly brought. Mr. Paquette had written to Mother and, Father through his lawyer should have been provided with notice of the motions and an opportunity to respond.
[102] Mother explains that she was following her then-lawyer’s advice and that she did not understand that Father was not going to be served with the material. She indicates that she has brought a lawsuit against the lawyer who initiated the ex parte motion for the manner in which he dealt with her family law matters. She states that she provided to her then-lawyer the communication she received from Mr. Paquette advising that Father had retained him and wished to see Jack. She did not understand that the steps her lawyer was taking would not provide notice to Father.
[103] Mother has apologized for the ex parte motion. She became distraught during this part of her testimony. It is clear that she deeply regrets the ex parte motion.
[104] Even after various judges made costs awards against Mother, they did not order significantly expanded parenting time between Father and Jack until December 2019.
[105] Father states that access was denied in the face of a valid Court Order in June 2017, August 2017, and September 2019.
[106] Mother explains her behaviour in denying access in the face of a valid Court Order as follows:
(a) She denied access June 23, 2017, because she was scared as Father had just been released from jail. She was concerned about what he would do and wanted him to have a two-week cooling off. Furthermore, just prior to his release, Father had questioned the paternity of Jack and she was concerned and wondered why he wanted access.
(b) From August 30, 2017 to October 11, 2017, Father had no access but Mother states that is because pursuant to the terms of his criminal peace bond he was to obtain a new Family Court Order. She does not want to be blamed for Father not obtaining a new Order.
(c) Between July 16, 2019, and September 2019, the Order needed to be changed given that Jack had started school (Monday and Friday access was no longer applicable) and Mother’s home was in a 250-meter radius of the school.
(d) Mother offered supervised access.
[107] Mother has been penalized for bringing the ex parte motion and for any failure to comply with previous Orders. She has paid over $77,000.00 in costs (more than 50% of the costs were in relation to the trial with respect to property and the appeal).
[108] The process that the Mother should have employed was to return the matter to Court. Although I do not sanction Mother’s behaviour, victim resistance cannot be reformulated as alienation. The evidence is that Mother was a victim of serious domestic violence perpetrated upon her by Father. As set out above, the Father has been convicted of assault and assault with a weapon vis-à-vis Mother. He also plead guilty for a failure to obey Court Order. While the Father has appealed, as at when this trial was heard, he had been convicted of violent offences against the Mother.
[109] Although Mother did not act maliciously, she did act in contravention of Orders. The Father was convicted following a criminal trial of several serious offences by a Court held to higher standard of proof than this Court. I find, as a fact, that the Mother was genuinely fearful of the Father’s retribution, towards both herself and the child, after he was released from prison. In my view, this fear was reasonable in the circumstances.
[110] In Achakzad v. Zemaryalai, 2010 ONCJ 318, a case involving domestic violence in the context of a Hague Application and an Article 13(b) defence, Murray J. stated at para. 86 of her decision:
Is the danger of future harm lessened, because the parties are no longer cohabiting? Although judges a generation ago may have held that belief, we know now that the risk of domestic violence actually increases following separation. Separation can mean a loss of control and an abusive spouse is often anxious to re-assert control. Despite the respondent’s assurance that he knows that the marriage is over and that he just wants to have regular access to his daughter, I cannot ignore his clear resentment with the applicant’s Article 13(b) claim. He has had to deal with allegations that he finds profoundly insulting. The allegations have hampered him in his ambition to become a police officer. Dealing with the allegations has cost him thousands of dollars. [footnotes omitted].
[111] Mother has complied with access since the Order of Justice McLeod of December 2019.
[112] Given the significant change in her level of compliance, I accept that Mother will comply with further Court Orders of the Court. I also do not believe that Mother purposefully created an artificial status quo. I accept that she acted out of fear.
[113] On July 16, 2019, Father’s lawyer wrote to Mother’s lawyer advising that Father would be attending to serve his custodial sentence commencing that day. This was the first time Mother was aware that Father had elected to serve his custodial sentence. She believed that Father’s sentence was suspended until the appeal had been disposed of.
[114] On September 12, 2019, Father’s lawyer wrote to advise that Father had been released from custody. He sought access pending the return of a motion and provided a copy of Father’s probation Order.
[115] Although Father’s lawyer had written to advise he would contact Mother’s lawyer to schedule a motion, Mother was never served with a motion and no one contacted her from July to September 2019 in relation to access with Jack.
[116] Father went into custody without notice to Mother. He made no arrangements for Jack’s care and had no regard for the position this would put both Mother and Jack in. This imprisonment was self-imposed, in that Father chose to serve his time despite his appeal.
[117] There is sufficient evidence that despite Father’s evidence that he had little to no notice of the dates of his incarceration that he was at the very least aware of the time frame.
[118] The notes from By Peaceful Waters of the exchange of June 17, 2019 indicate that Father advised the staff at By Peaceful Waters that “he may be going away for a month or two” and he asked staff that she “not mention any of this to Ana” at this time. The note from July 5, 2019, indicates that Father communicated to staff that “[h]e advised next Friday or possibly the Monday after may be the last visits before he goes away for a while.”
[119] Father’s failure to provide Mother with any notice of his intention to serve his custodial sentences shows a complete disregard for Mother and Jack. Father complains about Mother’s failure to abide by Court Orders yet does not recognize his own failure in that regard. This is another example of how Father does not accept responsibility for his own actions and his disregard for Mother and Jack.
[120] Caring for a child means not only attending to the child’s physical needs, but also his or her psychological and emotional needs. It is the whole child that must be cared for.
[121] It is clear to me that Mother is able and willing to provide the child with guidance and education and can meet all his needs. She has shown this in many ways. She has taken numerous steps to raise a well-rounded child. She is heavily involved in his schooling. She has never faltered in providing for him despite not receiving the proper amount of child support since his birth.
[122] I have no doubt that Father has and will provide the child with the physical necessities of life. It is also clear that he loves Jack and will provide him with affection. My concerns relate to Jack’s psychological needs. On the evidence, I am concerned that Father’s anger and his desire for what he sees as “fairness” (as opposed to a child-centred perspective on best interests) influences his decisions. In my view, in this context, he does not provide the child with the same guidance and care that Mother does.
[123] Father’s use of foul language as it pertains to Mother is very concerning. To refer to her as a “cunt” and a “whore” in his written communication to her is verbally abusive. This suggests a level of disrespect which I find concerning and likely to influence how he parents Jack and how he speaks to Jack about his Mother.
[124] I accept Mother’s evidence that when she painted Jack’s nails with nail polish his Father did call him a “homo” despite Father’s assertions otherwise and his explanation that he was concerned that the nail polish was “toxic”.
[125] Mother states she wants Father to have a good relationship with Jack. She states she has promoted that relationship. She provided examples, including that she helped Jack make a Father’s Day gift, she created T-shirts. These things made Father mad and therefore she stopped.
[126] Mother does not believe, based on Father’s actions and his distrust and dislike of her, that he will promote her relationship with Jack. Based on conversations with Jack, she believes that Father is saying negative things about her.
[127] The email communication from the Our Family Wizard App, which was made an exhibit, make it clear that Father continues to harbour ill will towards Mother. He continues to accuse her of lying, exaggerating, and brainwashing his child. He sarcastically refers to her as “Supermom”, and as recently as September 2020 in My Family Wizard, stated “God I wish I had never met you! You are the most difficult person I have ever had to deal with and unfortunately for Jack this bs will never end with you.” These parents cannot communicate with respect to basics like health or schooling, making a 50/50 parenting schedule for such a young child very difficult.
[128] Although each parent can provide to Jack the physical necessities of life, I find that Mother is better able to provide Jack with the psychological and emotional guidance and a broad education. I also find that Mother will promote a relationship between Jack and his Father, Cameron, and the paternal family. Father, on the other hand, will not promote a relationship with Jack and maternal family. I am concerned that Father will undermine Mother’s role in Jack’s life if his animosity towards her remains unresolved.
Child’s Needs Given the Child’ Age and Stage of Development
[129] Section 24(3)(a) directs the Court to consider the child’s needs given the child’s age and stage of development.
[130] Jack requires consistency and stability. He deserves to have his parents treat one another with respect. He deserves to have positive influences in his life.
[131] Jack had some language issues and, accordingly, the family doctor recommended a speech pathologist. Jack was highly successful.
[132] Mother states that the sheets she gave to Father regarding the speech therapy work came back crumbled and in a bag. Father denies this.
[133] It is important that each parent guide the development and maintenance of a relationship between Jack and the other parent. This will not be the case if the parent does not respect the role that the other parent plays in Jack’s life.
[134] Father did not participate in completing the exercises with Jack when he was in Father’s care.
Past Conduct/Family Violence
[135] As seen above, the Court is required under section 24(3)(j) to consider family violence as part of the determination of the parenting arrangements that will be in the child’s best interests.
[136] The history of this family causes concern with respect to the issue of family violence, which in turn bears on the arrangements which will be in Jack’s best interests.
Jack’s Birth
[137] Jack was born at Grand River Hospital in Kitchener.
[138] The conduct of Father the night before and the day of Jack’s birth constitute family violence. Both parties and Mother’s sister, Christina, testified regarding these matters. The Referral Report from Children’s Aid Society of Waterloo (“CAS”) was made an exhibit.
[139] The evening before Jack was born, Mother and Father got into an argument.
[140] Mother states she was overtired, and the family home was full of people. Father, Cameron, the paternal grandmother who had arrived from Newfoundland, and a friend of Father’s were at the home. Mother stated she needed to rest and accordingly advised Father that she was going to stay at her parents’ home to get some rest.
[141] Father describes that he was very “pissed” when Mother told him she was going to stay at her parents. Father states that Mother was insecure and jealous of his friends and that when she was in this frame of mind she would run to her parents. He was tired of her behaviour.
[142] Both parties agree that Father became upset and told Mother that if she left the family home, she need not bother coming back. Mother left and went to her parents’ home.
[143] Mother reached out to Father at 2:44 p.m. on April 11, 2015. Father’s response was “[b]low me slut”. Matters deteriorated, with Father calling Mother names and being verbally abusive. Numerous text messages followed.
[144] On April 11, 2015 at 11:22 p.m. Mother texted Father to advise she was in labour. She then texted at 11:31 p.m. to advise she had tried to call the house but only let it ring twice so as to not wake anyone. Father’s response on April 12, 2015 at 12:48 a.m. was:
Ur in labor…then ur fucking parents can bring u. I’m nothing but a sperm donor for u. U think u are showing respect for me by oing to ur parents? Well honey I can tell u that I had a long conversation with my mom tonite and she wud certainly agree with me that u have no respect for me to leave here and go to ur parents when ur cud go in labor any time. My mother told me tonite that. She cud not believe u left here. She did not believe I did anything wrong and there was no reason for u to get angry with me or Cam. She agreed with me…u expect for me, mom, and Cam not to speak or even be in the house when u want to rest. Cam was down the street for at least an hour today or more when u went to “rest”. According to u …u didn’t get any rest. Well did u ever. Think for one fucking moment. That I middle of the day and its hard to sleep when the sun is shining or the house is hallow and noisy? Do u expect mom not to speak to dad while ur trying to sleep? Or expect me not to do anything around the house or not speak to anyone? I’m so fucking sick of u getting pissed off with Cam because he is on the computer or has a friend over. U don’t want him hanging out with the neighbors kids bc u don’t like her…well if u weren’t talking badly about those kids he cud have been outside playing w them today when u were trying to sleep but he avoids them bc he know u don’t like them!!! My mother feel guilty for talking to dad bc u cudn’t sleep! Who the fuck do u think u are? This is ur house? Well guess what honey…this is my fucking house to! Fuckyou u fucking cunt! And its Cams house as well! I sold my fucking house and brought furniture, dishes, and a whole lot of fucking shit to this house…over 140000 dollars worth of shit! Ur dad gave us a 5000 dollar rrsp that we have to pay back! And. Ur gonna fucking tell me that Cam isn’t allowed to speak? Of my mom isn’t allowed to visit or speak to my dad? That isn’t gonna work for me! I don’t know who the fuck u think u are? [sic]
[145] Despite Mother’s request that Father stop messaging her if he was “going to be like this”, the foul language and texts continued.
[146] Mother texted Father at 3:00 a.m. on April 12, 2015, advising that she was at the hospital and the baby was coming. Christina took her to the hospital.
[147] Father’s explanation for not attending the hospital when Mother advised she was in labour was:
(a) at some point after 1:24 a.m. on April 12, 2015, he turned off his phone and went to sleep as he was “sick of messaging back and forth”; and
(b) he did not believe that Mother had gone into labour.
[148] When Father answered Mother’s texts on April 12, 2015 at 11:35 a.m. he stated: “you are a fuicking [sic] cunt! I will put the crib on your fucking parents [sic] front porch. Enjoy the fucking baby. We are fucking over. FUCK!”
[149] Christina described how upset Mother was that Father was not present at the hospital with her. Christina tried to focus Mother on birthing the baby.
[150] Father arrived at the hospital announcing: “the sperm donor has arrived”.
[151] Mother describes that when Father entered the room, he would not look or talk to her, and that when she was breast feeding Jack, Father was pulling at her breast in a rough fashion telling her how to properly breast feed Jack. Father’s explanation was that he was trying to help her breast feed and be the Mother to his child.
[152] Christina described that when Father arrived at the hospital he was “not happy”. She noticed a difference in Mother once Father arrived. She became very nervous and asked Christina to leave as Father did not want Christina there. Christina waited outside the room and heard raised voices.
[153] Father does not deny that he was angry with Mother. His explanation is that he was looking forward to being present for Jack’s birth and that Mother did not want him present as she was self-conscious and thought he would not love her if he saw her give birth.
[154] Father states that when he arrived at the hospital, Christina told him before he saw the baby that he had a son. This made him angry as she was the “worst person” to tell him.
[155] Father blamed Mother for ruining his experience and for he not being present at the birth. Although Father acknowledged in words that his behaviour was inappropriate, he refused to acknowledge that such behaviour had any impact on Jack.
[156] At some point the nurses came into the room and Family and Children Services of Waterloo Region were called. It is clear from Mother’s evidence and the CAS records that Mother was scared about Father’s reaction to CAS involvement. She did not wish to disclose or report.
[157] I find that Father’s behaviour was abusive. The fact that Father blames Mother was clear from his evidence and his demeanour. It was also clear that he continues to blame Mother, despite the courses and counselling, and he fails to see how his behaviour towards Mother is abusive and how it impacts Jack. Recently the Supreme Court of Canada in the decision of Michel v. Graydon, 2020 SCC 24, 449 D.L.R. (4th) 147, at paras. 94-98, linked the well being of a child to that of their custodian, albeit in a child support context.
Mother’s Allegations of Father’s Abuse of Her
[158] Mother described in detail the assaults and abusive behaviour she states were perpetrated against her by Father, which included pushing, grabbing, wrapping his hands around her throat, saying he would kill her and then throwing a container at her, pushing her when she was pregnant, and rape.
[159] These incidents include:
(a) May 2013 – Father pushed and grabbed her and then prevented her from calling 911;
(b) October 2013 – Father wrapped his arms around her throat and said he would kill her and then threw a 50-pound container at her;
(c) November 2014 – Father pushed her in the stomach while she was pregnant with Jack;
(d) January 2016 – on Mother’s birthday she had gone to her parents’ home. She received a text message from dad which stated among other things “Happy fucking birthday u fucking no good fucking whore! I went out and bought u cupcakes and crab legs so I cud make for u! How about that u fucking bitch!” When she returned home, Father had thrown out the flowers he had received from her friends. Mother explains that this is just one example of how Father behaved if she went somewhere without him. That if he is unable to reach her, he would yell and swear at her;
(e) In July 2016 – the parents and Jack were to spend the day together at a splash pad. Mother suggested they go to a restaurant that Father frequented. He became very upset with her saying she wanted to spy on him because she was jealous of the waitress that worked at the restaurant. Father started driving like “crazy”. He pulled off the road and walked out of the car calling her “a miserable cunt”. Mother describes that she went to hide in the car with Jack because she was scared. Mother states that Father was swearing and yelling in front of Jack. Father stayed away for four days even though she asked him to come home.
[160] The Father’s numerous and abrasive electronic communication contributed to Mother’s fear of Father and her fear that Father would cause harm to either her or Jack. She describes being nervous with respect to Father’s erratic behaviour. I accept her evidence in that regard. Numerous electronic communications have been presented by Mother that supports her contention. This behaviour continues as Father blames her for things like sending “Jack over here with stupid fucking Jr. Constable stickers or police cars like I want to see that” and even saying “[y]ou have gone so far as to make me even question myself if I m [sic] the father of my own son”. His messages are riddled with accusations and show an inability to move forward.
[161] Mother states that on the advice of Waterloo and Guelph Police she has a security system in the home and other measures outside the home. Mother describes that Guelph Police have done a safety audit on her home, and when she moved to her new home, a further safety audit was done. This was initiated by Victim Services. Waterloo Regional Police has also put in place other measures for when Mother is out, for safety reasons. Mother did not elaborate.
[162] Father now admits there was assaultive behaviour during the relationship. However, up until sentencing in his criminal matter, he vehemently denied all allegations of abuse or violence.
[163] When cross examined in this trial about his behaviour, the Father admits to certain incidents, but states he pushed back out of self defence. The evidence is that self defence was never raised as a defence in the criminal trial.
[164] In cross-examination Father states that he has respect for Mother but their relationship was toxic. He stated he would always respect Mother. He admits that the messages he sent were inappropriate, initially admits that Mother has never sent him a message with an expletive directed at him but then later states she did, but he does not know where those messages are or that Mother deleted them to protect herself.
[165] When Mother’s lawyer puts to him that the text messages he sent are “pure psychological abuse” his response was that Mother did it too. He repeatedly states this is about Jack and fails to see the link between his treatment of Mother and Jack. He then proceeds to say that the Mother psychologically and emotionally abused him as well.
[166] On October 26, 2020, Father was arrested again and charged with breach of probation as a result of sending inappropriate/threatening/bullying messages to Mother through Our Family Wizard.
[167] Although Father posits that the charges (and subsequent convictions) levelled against him were prior to Jack’s birth, I find that his abusive behaviour continued during the pregnancy, at the time of birth, and thereafter.
[168] It is very clear that Father fails to understand the impact of his actions. His evidence with respect to the assaults he perpetrated against Mother, as well as his relationship with Tracy, were simply not credible. His allegations that Mother also engaged in abusive communication, in an effort to divert blame for his conduct, despite a complete lack of evidence, illustrate his lack of accountability.
Mother’s Allegations of Father’s Abusive Behaviour Towards Jack
[169] In May 2015, when Jack was about a month old, Mother describes that he was fussy and crying in his crib. Mother was trying to calm him. Father became upset and started cursing at Jack to “fucking stop” and when he did not, Father took Jack into the bathroom and locked himself and Jack in the bathroom and Mother could hear him yelling at Jack that “I could punch you in the fucking face”. Mother was beside herself – she states Father had a revolver in the house, and she did not know if he had it with him in the bathroom. Eventually Mother was able to convince Father to open the door at which point she retrieved Jack and locked herself and Jack into the bathroom while Father calmed down. Mother describes that Father proceeded to put a blanket over his own head and was shaking and crying. Although Father denies this incident, it is corroborated in text messages between the parties.
[170] Mother states that Father constantly yelled and swore at her in front of Jack.
[171] Father describes that in June 2016 he almost had a nervous breakdown over the parties’ relationship. He states he was afraid to speak with her.
[172] Jack was present during the incident in July 2016 referenced above.
[173] At some point in later 2016, but prior to separation, Father pushed Mother while Jack was in her arms.
[174] On or about October 8, 2016 Father was yelling and banging on the bathroom door – Mother locked herself and Jack in the bathroom out of fear.
[175] On October 12, 2016, the night before Mother left the home with Jack, Mother describes that while Cameron was having a shower, Jack was trying to get to Cameron. Father started screaming “why in the fuck is he whining” repeatedly and then told Jack to “shut the fuck up”. According to Mother this was the last straw. She left the next day.
[176] On October 13, 2016, Mother left the home with Jack without notice. She had come home from a counselling session with Father, after which Father left the home. She took the opportunity. She did not feel safe in the home, and she contacted his inspector as she was concerned about him.
[177] Father described that on October 13, 2016, the parties had a counselling appointment that he had been trying to get Mother to attend for months. He states that he felt “pretty beat up by the counsellor” and that he packed up his gear and left for work around 4:00 p.m. and then sat in the parking lot as his shift did not actually start until 9:00 p.m. Mother called Father’s employer, concerned about his mental health.
[178] I find that Jack has both directly and indirectly been exposed to family violence perpetrated by Father.
Father’s Behaviour Towards Cameron
[179] Father states that he was and continues to be a great Father for Cameron. He points to the OCL report which speaks positively about his relationship with Cameron. He states that he and Cameron’s mother had a good relationship, that they were able to co-parent well, and that Cameron was in his care at least fifty percent following his separation from Tracy.
[180] Both Father and Tracy stated that Father was a very involved parent in Cameron’s life and a “hands-on” Father. Cameron had health issues at birth and remained in hospital for the first two months of his life. Father stayed in hospital when he was not working.
[181] The Mother paints a different picture of Father’s behaviour towards Cameron. She does not deny that Father loves Cameron or that they have a bond. She states that Cameron was subjected to Father’s anger and physical and emotional abuse.
[182] Mother’s evidence is that she was witness to Father yelling and swearing at Cameron repeatedly. She states there have been incidents of physical violence perpetrated by Father against Cameron which include him grabbing Cameron by the wrists and twirling him around forcefully. She also describes an incident where Cameron was working on a school project and Father “cuffed” him across the back of the head.
[183] Mother described that schoolwork was difficult and that Father used swear words at Cameron telling him to “fucking focus”. Mother testifies that when she first met Father, Cameron was not doing well at school and that she assisted him with his schooling. Her evidence is supported to some extent by CAS case notes.
[184] Mother also describes that Father put significant pressure on Cameron to perform at hockey. He would often yell at Cameron during hockey games and practice and during the car ride back from hockey. If Father was mad at Cameron because of his performance during hockey, he would take him home right after the game instead of letting him stay in the locker room with the coach and other players to debrief.
[185] Despite all this, Cameron is described in very positive terms by both parties. Father states that this is one of the reasons he should be given 50/50 time, namely he did an excellent job with Cameron.
[186] However, the Father also sent the following messages with respect to CAS involvement with Cameron, though he denies any mistreatment of Cameron. In those text messages to Mother during the period of October 22, 2015 to October 30, 2015, he states “I think about all the times we argued and u took Jack from me, or took him and stayed in the bedroom with him to avoid me or just told met to stop yelling or being angry around Jack…I feel I have failed u Jack and Cam…I have hurt you and Jack and obviously Cam reached out about how I had hurt him”. He goes on to state “I hate myself for all the damage I have done to u, Jack and Cam.”
[187] In reference to CAS investigating the incident, his concerns that the police would get involved, and his distrust of both, Father stated in a text “Not to mention those sluts are probably banging some cop or cops and talking pillow talk…complaining about me. And we both know how a lot of cops don’t like me and wud [sic] love to fuck me over!”. He also says, “I wish a fucking bomb went off at fcs!”.
Father’s Relationship with Tracy
[188] Both Father and Tracy testified that they had a good working relationship following their separation.
[189] Tracy described Father as “very easy going for the most part”.
[190] Tracy provided affidavit evidence in the interim proceedings in this matter in support of Father’s parenting abilities and general positive qualities. She provided that same evidence in her examination in chief.
[191] The electronic communication produced by Mother during Father and Tracy’s cross-examination indicates that Father and Tracy have not been truthful. Tracy’s concern when the electronic communication was produced, disturbingly, had more to do with how Mother obtained the electronic communication than the contents of the communication.
[192] A text message on January 29, 2014, is from Tracy to Father in reference to Cameron and hockey. She states “I will not spend the next few years (like the last few) being harassed and bullied by you. I have had enough.” She ends the message with “I can’t wait until Cam is old enough so I don’t have to deal with you anymore!”
[193] A further undated electronic communication which references Cameron being 14 years of age, and thus the text would have been sent about five years ago, is also telling. In it, Tracy states “I have done things in the past to save you from possibly losing your job even though you have been abusive. You do abuse me, but you will not influence my life.” Tracy refers to the Father bullying, insulting, harassing, and verbally abusing her. She ends the text with “stop treating me like a piece of garbage”. Father denies that he in any way bullied Tracy.
[194] Disturbingly, both Father and Tracy blame Mother for the deterioration of their relationship (this despite Tracy admitting in cross examination that Father was verbally abusive to her and that when she left him she went to a shelter). Tracy’s evidence was that the only time Father bullied and harassed her was when he was in a relationship with Mother.
Steps Taken by Father
[195] The Father has completed a range of programing, ostensibly to address concerns related to his behaviour. For example:
(a) Father completed the Caring Dad’s program and the Circle of Security Course;
(b) Father completed the KW Counselling Services Program, Connecting with Our Kids, in February 2017;
(c) Father has participated in 49 counselling sessions with Amanda Ferrara of Family and Children’s Services;
(d) Father attended PARs on the advice of his probation officer;
(e) Father engaged in EMDR therapy;
(f) Father started in June 2016 and continues to see Dr. Eklard; and
(g) Father states that in January 2020 he started to see Dr. Michelle Lucci, who has diagnosed him with PTSD. He believes his PTSD dates back to 2008.
[196] Father’s first mention of Post-Traumatic Stress Disorder (“PTSD”) was in his oral evidence in this trial. He provided no medical reports or any other evidence in relation to his diagnosis of PTSD. The reasons for noting his diagnosis were to provide an explanation for his behaviour and to advise the Court with respect to his WSIB claim. I cannot, without proper evidence, make any findings in relation to Father’s assertion that he has PTSD, nor how it impacted him.
[197] Notably, none of the professionals who delivered programming to the Father were called by him as witnesses in the trial. It is indeed perplexing that with all of this third-party assistance, Father’s animosity towards Mother continues. It may be as Mother states that he has continued to deny his abusive behaviour. Regardless, it is clearly not enough for this Court to find that a shared parenting schedule would be in Jack’s best interests.
[198] Expressing remorse is easy; changing behaviour is hard. Father has demonstrated a pattern and long-term history of family violence towards the Mother, both in and out of the presence of Jack. Although Jack and Father have a good relationship, Father perpetrated family violence against Jack and against Jack’s Mother. Father continues to demonstrate abusive and demeaning behaviour despite the steps he has taken. His continued assertion that family violence should not impact the parenting schedule is indicative of his failure to understand the long-term impact of domestic violence.
CAS Involvement
[199] CAS has been involved with this family. The Risk Assessment with the referral date September 16, 2015, noted the risk level to be high.
[200] Both parents have called CAS in respect of the other. Father has called more than Mother. None of the calls have resulted in ongoing involvement of the CAS.
[201] In August 2017, the CAS notes indicate “…the Society has deemed Jack safe in both parents care and has determined that both parents are utilizing the Society to further perpetuate their custody and access conflict. They have been advised that the society will not hold a position regarding access, and they will need to address that through Family Court.”
[202] CAS should never be used as a means to obtain an advantage in parenting disputes. Unless there are protection concerns involving CAS is self-serving and is a disservice to children who require the intervention of the CAS.
Findings and Conclusion:
[203] Father asked me to consider the comments made by MacLeod J. at the hearing of the long motion in December 2019. MacLeod J. made an interim Order based on competing affidavit material and without the benefit of oral evidence and cross examination.
[204] Both parties pointed me to various excerpts in the transcript of the sentencing hearing before G. Pockele J. on April 26, 2019. Father has confirmed that at sentencing he made the statement “[a]t no point have I ever said that my behaviour is acceptable behaviour for anyone to engage in. I have failed to maintain restraint at times in my relationship with Ana Freitas. Although I may disagree with the facts that I have been found convicted of, I do agree that I am accountable for my – my actions, and that I have engaged in assaultive behaviour.”
[205] Regardless of any determination on appeal, I find that on a balance of probabilities the Father has committed family violence against the Mother, the child, and his son Cameron, who was a member of his household. Furthermore, the Father lacks insight into the impact that his abuse has on both the Mother and child. Before there can be an expansion of parenting time, Father must address his behaviour and accept that it is his behaviour in large part that has contributed to the acrimonious relationship between the parties.
[206] A starting point to assess a child’s best interests when making a parenting Order is to ensure that the child will be physically and emotionally safe. It is also in a child's best interests when making a parenting Order that his or her caregiver be physically and emotionally safe. See I.A. v. M.Z., 2016 ONCJ 615, at para. 61.
[207] The manner in which Father treated Mother during the relationship and post-separation will no doubt impact Jack both emotionally and psychologically. Father is the dominant male figure in Jack’s life and his behaviour towards the dominant female figure in Jack’s life will shape Jack’s perspectives and form part of his childhood experiences.
[208] The following behaviour leads me to conclude that an equal parenting schedule is not in Jack’s best interests:
The family violence perpetrated by Father against Mother, Jack and Cameron.
Father’s persistent and ongoing denial of assaults against Mother.
Father’s lack of insight into the consequences of his actions.
Father’s excuses for his actions.
Father’s persistent position that Mother has orchestrated the circumstances that have led to the trial.
Father’s inability to set aside his personal differences.
Father’s communication with Mother which are replete with expletives, disgusting and verbally abusive language, whereas Mother attempts to communicate in a positive and neutral fashion.
Father’s failure to provide Mother with essential information which impacted parenting or potentially impacting parenting.
Father’s inability to understand how his failure to provide the Mother with information formed her continued concerns.
[209] Equal time sharing for a child of this age requires at least some level of co-operation and communication between the parents. The parties do not have the necessary level of communication for an equal-parenting plan to be in the child’s best interests for the multiple reasons I have already set out in this decision. In this case, I find that the Mother, particularly in the later years, has attempted to communicate with the Father but he has not reciprocated. Examples of this include:
(a) The Mother sending pictures of Jack through the app, on Our Family Wizard, of events that did not occur during Father’s parenting time, such as Jack’s first day of school, Jack getting a hair cut, Jack losing his first tooth, Jack at the beach, Jack with his head phones on with a picture of Father with his head phones;
(b) Mother making cards and Father’s Day gifts with Jack and forwarding them to Father;
(c) Mother keeping Father updated with respect to Jack’s progress at school and information about other matters relating to Jack;
(d) Father’s failure to work with Mother in respect of the speech therapist;
(e) Father’s continued assertion that Mother is to blame for the litigation;
(f) Father’s failure to advise Mother he was going into custody and his release date;
(g) When Mother asked questions about COVID protocols, Father responded with “you do not need to know what is happening in my home.”;
(h) Father’s inability to communicate with Mother properly though Our Family Wizard;
(i) Father’s failure to advise Mother that when he commenced working at Canada Post he was working the night shift and as such Cameron was at the home caring for Jack.
[210] The evidence showed a willingness on the part of the Mother to foster and maintain a relationship with the Father and his family. Conversely, the evidence showed that Father expressed to the child that it was Mother’s fault that he was going to jail and generally spoke poorly of Mother in the child’s presence.
[211] In ordering the parenting schedule sought by Mother, I find that this is as much parenting time as is consistent with Jack’s physical, emotional and psychological safety, security, and well being.
[212] In arriving at this decision, I have expressly considered the maximum contact principle and reviewed the following appellate decisions: Kagan v. Brown, 2019 ONCA 495; Doncaster v. Field, 2019 NSCA 61, 27 R.F.L. (8th) 85. Although these two decisions deal with the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 24(6) of the amendments to the CLRA codify the principle.
[213] Even before the amendments to the CLRA incorporating it into s. 24(6), the maximum contact principle found in s. 16(10) of the Divorce Act was applicable under the CLRA, as noted by the Ontario Court of Appeal in Lemon v. Lemon, 2018 ONCA 684, 14 R.F.L (8th) 14, at paras. 34-36. It is not, however, absolute. The legislation obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests. If other factors show that it would not be in the child’s best interests, the Court can and should restrict contact: see Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 117-118.
[214] In this case I find that the parenting schedule proposed by Mother during the school year is consistent with Jack’s best interests.
Easter
[215] The Mother seeks an Order that the child, Jack, be in her care from Holy Thursday after school until Easter Sunday at 2:00 p.m. each year and that Jack be in the Father’s care from Easter Sunday at 2:00 p.m. until return to school Tuesday at 8:20 a.m. each year.
[216] The Father seeks an Order that in even numbered years Jack be in his care from Thursday, prior to Good Friday, until the return to school Tuesday morning and in odd numbered years Jack be in the care of his Mother from Thursday, prior to Good Friday, until return to school Tuesday morning.
[217] The Father seeks this schedule because the terms of his peace bond and the partial minutes of settlement require him to have a third party pick up and drop off of the child. He indicates that pick up and drop off is problematic when the child is not in school because he must get someone else to do it. The Father’s probation ends in May 2022. Accordingly, this is an issue for the next two years.
[218] The Mother’s evidence is that when she and Father were together, Cameron was always with them for Easter Sunday and Monday as Father’s family celebrates Easter Sunday at dinner time. She states that her family is Portuguese and Catholic, and Easter is an important religious holiday. She advises that they celebrate Easter by attending church together every year (other than during COVID-19). She indicates that following church her extended family celebrates by having lunch together.
[219] Mother’s position is that Easter Sunday is an especially important holiday for her, and it is important that her cultural and religious heritage be respected. Mother admits that Father’s parents are Catholic and when they are in the area, they too attend church.
[220] Mother states that the exchange is not as difficult as the Father indicates. Her family (likely her brother-in-law, who has not testified in either proceeding) is easily able to bring the child to the truck and Father is now able to get out of the truck to retrieve the child. She explains that Jack only has to cross a parking lot with a third person.
[221] Father states that Mother’s position in relation to Easter is not fair. He should not have to give up Easter morning each year, as he too is Catholic and would like the opportunity to take Jack to church. He indicated that Cameron is the only designate he uses for the pickup and drop offs, and that in the past he has had difficulty obtaining a designate. He further complained that Monday is often a workday. There was no evidence led that he has taken Jack to church during any of the time he has had Jack in his care.
[222] I remind the parents that their focus should remain on what is best for Jack and not the “fairness” to either of them. What matters is “fairness” to the child and the arrangements that are in his best interests. Jack should have the opportunity to experience Easter Sunday morning with each of his parents and both his paternal and maternal extended family. To date, Jack has not had this opportunity with his Father.
[223] There is no geographical distance that makes it difficult to divide the weekend as both parties reside in the Kitchener-Waterloo Region.
[224] I do not find that the exchanges are an impediment, given that in addition to Cameron, a member of Mother’s family could be the designate and furthermore this condition will only be in place for two more years.
[225] Accordingly, I order that the Easter weekend shall be alternated as follows:
In even numbered years, Jack shall be in the care of his Mother from Holy Thursday after school until Easter Sunday at 2:00 p.m. and in the care of his Father from Easter Sunday at 2:00 p.m. until his return to school or on Tuesday at 8:20 a.m.
In odd numbered years, Jack shall be in the care of his Father from Holy Thursday after school until Easter Sunday at 2:00 p.m. and in the care of his Mother from Easter Sunday at 2:00 p.m. until his return to school or on Tuesday at 8:20 a.m.
Disclosure of Travel Details When Leaving the Region
[226] There was no evidence led with respect to why the Mother requires disclosure if Jack and Father leave the Kitchener-Waterloo Region. Her communications with Father through Our Family Wizard make it clear that she wants this disclosure.
[227] These parties are unable to communicate regarding the most basic issues - there is a high level of conflict. The parties have already agreed that when Jack is in the care of a parent, day-to-day decisions about the child be made by the parent who has care of the child.
[228] I see no reason to add to the acrimony by requiring the parties to disclose to each other when Jack is leaving the Region of Kitchener-Waterloo. I do accept that it is reasonable to provide travel details if the child is leaving the province. To be clear, this is not meant to be a restriction on travel outside of the province, particularly when the child’s paternal grandparents and aunt reside in a different province and there is no reason to restrict the child and Father from visiting with his paternal family, so long as COVID-19 protocol is adhered to. For these reasons I decline to make the Order requested by the Mother as it pertains to leaving the “Region” and instead order that the parties provide to each other travel details, as a courtesy, and in advance, should the child be leaving the province.
Child Support
Payment History
[229] It is agreed that following separation, Father paid $900 a month in child support and that in May 2019 he paid arrears of approximately $11,000. It is further agreed that from May 2019 to the time of the trial, the Father paid no child support.
[230] In cross-examination, the Father agrees that, except for two days, he has been in arrears of child support since the date of separation.
[231] I am concerned that Father still owes arrears of child support agreed to, while his financial statement sworn November 26, 2020 indicates that he has $7,000 in RRSPs. He also received an income tax refund of $3,509.38, based on a return he filed in or around March 26, 2020.
[232] Child support is the right of the child. Father has been represented by a lawyer throughout and should have been paying the correct amount of child support from the outset. There are very few excuses for not paying Guideline child support when the child is in the primary care of the other parent.
[233] Both parties agree that should Father be successful in his WSIB claim or should Father’s pay be reinstated; child support shall be adjusted retroactively to reflect his increase in income.
[234] The parties have reached agreements with respect to the payment of child support up to and including December 2020. I am being asked to set child support from January 1, 2021 onwards.
Father’s Employment History
[235] Father has been a police officer since July 18, 1999. On January 19, 2017, when the Father was charged with the offences set out above, he was suspended with pay. Upon being convicted of certain of the offences as set out above, his suspension became a without pay suspension. There was no evidence led as to whether, as part of his WSIB claim, Father could be reinstated.
[236] Father has skills as a construction worker and working with cranes and steel.
[237] Father’s Line 150 income has been as follows:
2016: $124,115
2017: $118,169
2018: $118,532
2019: $60,050
2020: The Father received $4,496 in EI Benefits, $14,000 in CERB, and $2,000 in CRB and some employment income.
[238] Since his suspension without pay, Father worked for a few weeks in October 2020 with Amazon and was earning $16.70 per hour. This was a short-term contract. While working for Amazon he applied to Canada Post.
[239] Father produced a letter from Canada Post indicating he received a term appointment to the position of Supervisor, Manual and Mechanized, with assigned hours of work Sunday to Thursday from 11:00 p.m. to 7:00 a.m. His hourly pay is $30.22. His annualized income by my calculation is $62,857.60 (8 hours a day x 5 x $30.22 = $1,208.88). His contract is for the period November 22, 2020 to January 30, 2021.
[240] His term appointment may be for a shorter period depending on availability of work and continuance of duties performed. As a term of his employment, his employment may be terminated at any time before the contract end date (Exhibit 48, pp. 1-2). Father does not believe his contract will be renewed.
[241] Father does not receive benefits from his employment with Canada Post given the short-term nature of the contract. His evidence is that while his WSIB claim remains active, he receives benefits through his employment with Waterloo Regional Police.
Position of the Parties
[242] The Mother’s position with respect to the Father’s income changed over the course of the trial. In opening submissions her lawyer indicated that Mother was seeking that minimum wage income be imputed to Father. At the commencement of the trial, the Mother did not know that Father had secured employment with Canada Post. Consequently, in closing submissions, it was the Mother’s position that Father’s income should be set at the income he was earning at the time of the trial, namely $62,600. I specifically asked counsel for the Mother whether the Mother was seeking an imputation of income to Father commensurate with his income as a police officer and she is not.
[243] Mother requests an Order that:
The Respondent Father shall pay to the Applicant Mother, child support in the sum of $582.00 per month commencing January 1, 2021, and on the first day of each month thereafter, pending further Order of this Court or agreement between the parties. The parties shall proportionately split Section 7 expenses 55:45 Applicant: Respondent.
Commencing June 1, 2022, support and proportionate Section 7 expenses shall be adjusted based on the payor’s prior year’s Line 150 Total Income from the payor’s prior year’s T1 - General Income Tax Return.
[244] It is Father’s position that a minimum wage income be imputed to him from January 21, 2021, onwards as that is when his employment with Canada Post will end. Specifically, Father requests an Order that:
Upon this court determining a parenting schedule wherein the Respondent Father has Jack in his care for at least 40% of the time over the year, neither party shall pay table amount child support to the other.
Upon this court determining a parenting schedule wherein the Respondent Father has Jack in his care for less than 40% of the time over the year, the Respondent Father shall pay to the Applicant Mother child support in the amount of $253.00 per month, commencing January 1, 2021, and on the first day of each month thereafter, based on an imputed income of $29,640.00 and the Child Support Guidelines. Child support shall be adjusted retroactively for 2021 at the end of that calendar year, based on the Respondent Father’s actual income for 2021.
Special and extraordinary expenses shall be agreed upon in advance, agreement not to be unreasonably withheld. Such expenses shall share in proportion to income, currently shared 28% by the Respondent Father and 72% by the Applicant Mother, based on incomes of $29,640.00 (Respondent Father) and $76,511.00 (Applicant Mother). Any entitlement with respect to the sharing of section 7 expenses for 2021 shall be similarly adjusted at the end of the calendar year 2021.
[245] Mother’s position is that I am to use the Father’s most current information in setting the amount of child support.
[246] Given my decision with respect to parenting time, it is not necessary for me to consider s. 9 of the Guidelines and the implication of shared parenting.
[247] The starting point for determining a spouse’s annual income is to use the sources of income set out under the heading “Total Income” in the T1 General form issued by the Canada Revenue Agency (“CRA”), and to adjust in accordance with Schedule III: see Guidelines, s. 16.
[248] Subject to s. 15(2) of the Guidelines, a spouse’s annual income is determined having regard to ss. 16-20 of the Guidelines.
[249] Section 16 of the Guidelines does not require the Court to use the previous year’s total income as reported by the party in the T1 General form as a basis for determining ongoing child support. Rather, the intention of s. 16 is to direct the Court to ascertain the parents’ income based on the sources set out in the T1 form. By virtue of s. 2(3) of the Guidelines, the Court is required to determine the issues relating to income based on the most current information available. This requires the Court to ascertain, if possible, the parents’ estimated current annual income in the year the child support Order is being made. One exception is where the parents’ current income situation is uncertain or speculative, in which case fairness to the payor may require the Court to rely on historical income information: see Morrissey v. Morrissey, 2015 PECA 16, 371 Nfld. & P.E.I.R. 182 and MacEachern v. Bell, 2019 ONSC 4720, 33 R.F.L. (8th) 68.
[250] The requirement to use the most current information to determine income is not, however, an invitation to engage in uncertain projections or uncertain information (see Fielding v. Fielding, 2018 ONSC 5659, at para. 101).
[251] In this case, the most current income is for a specific period of time and may not continue. Accordingly, using Father’s current income would be unreliable once Father’s contract or extended contract with Canada Post ends. Accordingly, I am required to consider s. 19 of the Guidelines.
Imputation of Income
[252] Section 19 of the Guidelines deals with imputing income. Section 19(1)(a) reads as follows:
The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include, the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse.
[253] As the Father has agreed that an income should be imputed to him, I am not required to consider the three part test set out by the Court of Appeal in Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.), at para. 23.
[254] Father submitted, at Exhibit 33, his job search contact tracking (“Job Search”); a document prepared by him which sets out the jobs he has applied to since September 26, 2019. Father’s Job Search shows that at the beginning of his search, he focussed (not exclusively) on securing employment in the security/investigator field or in the banking industry.
[255] The Father’s pursuit of jobs in the banking sector was the subject of some discussion at trial. In cross-examination he indicated that although such jobs would require a fraud designation, his criminal charges will not have an impact as they are not fraud related charges.
[256] In the spring of 2020, the Father’s search expanded to include construction work and other jobs.
[257] Although counsel for the Mother states that his job searches in fields like security are unreasonable given his criminal convictions, Father disagrees and states that his convictions will have no impact securing employment as a security guard.
[258] It is clear to me that Father has been diligently searching for his employment since September 26, 2019, and wants to work. It is equally clear to me that Father has been reticent in paying child support. Imputing income is one method by which the Court gives effect to the joint and ongoing obligation of parents to support their children, in order to meet this legal obligation, a parent must earn what she is capable of earning (see Drygala, at para 32).
[259] The Father’s long-term plan is to work for Ardent Mortgages. He has signed an Independent Contractor Agreement. He was unable to advise how much he could expect to earn through Ardent Mortgages. In cross-examination, it became clear that this plan is far from certain. According to Father, he must start work before he will even know if he will pass the suitability assessment which the Financial Service Commission of Ontario conducts.
[260] Although it took Father approximately one year to find employment, in the span of one month he was able to find two jobs. The average income of those two jobs is $23.46 per hour x 40 hours per week ($938.40) x 52 weeks is $48,796.80. That is the income I impute to Father. Accordingly, Father’s child support obligation once his employment with Canada Post ends shall be $450.00 per month following the conclusion of his employment with Canada Post unless his actual income is higher.
Orders Made
[261] On Consent:
The child, Jack Hilliard Christopher, born April 12, 2015, (“Jack”), shall reside in the primary care of the Applicant Mother, Ana Marie Freitas.
The Applicant Mother shall have final decision-making authority with respect to major decisions relating to Jack’s education, healthcare, and religion.
Other than those matters set forth in paragraph 2 above, the parent residing with Jack at the relevant time will make the daily decisions affecting his welfare, provided any emergency event shall be promptly, and as soon as reasonably possible, conveyed to the other party.
The parties may make inquiries and be given information by Jack’s teachers, school officials, doctors, dentists, health care providers, summer camp counsellors, or others involved with Jack. The parties intend this clause to provide each of them with access to any information or documentation to which a parent of a child would otherwise have a right of access. If, for whatever reason, this clause is not sufficient (although both parties intend it to be sufficient authority for either of them), the parties will cooperate and execute any required authorization or direction necessary to enforce the intent of this clause.
Subject to the Probation Order dated May 31, 2019, the parties shall forthwith register for Our Family Wizard and utilize same to communicate with one another about the child, Jack, and about his extra-curricular schedule. Both parties shall be responsible for the costs of their respective registrations with this software program/app.
The parties shall agree with respect to Jack’s enrollment in extracurricular activities that overlap the parties’ parenting time. Jack shall attend his activities reasonably consistently, and the resident parent shall be responsible for transportation to and from the activities. The cost of these activities shall be shared equally between the Applicant Mother and Respondent Father.
For extracurricular activities that do not overlap both parties’ parenting time, the enrolling parent shall advise the other parent of the enrollment.
The enrolling party shall be solely responsible for any expenses associated with extracurricular activities that only occur during his or her own parenting time. Each party shall provide to the other all necessary information regarding activities, regardless of whose parenting time the activity falls on, via Our Family Wizard.
If either party plans a vacation with Jack, that party will give the other a detailed itinerary at least 14 days before it begins, including the name of any flight carrier, flight times, locale, and details as to how to contact Jack during the trip, such that the child be permitted to contact the other party every day for not less than 10 minutes, with Jack to initiate the telephone call. Neither party shall record the telephone call, and the telephone call shall not be a breach by the Respondent of the Probation Order attached hereto as Schedule “A”. The travelling party will provide the other party with a draft letter, authorizing Jack to travel, for the other party to execute and have notarized. The cost of preparation of the travel letter and notarizing of same shall be at the sole expense of the travelling parent. The Applicant and the Respondent will not be required to provide the specific address other than the city or locale where they are travelling with the child. Neither party shall attend personally or by surrogate at the vacation location.
The Applicant Mother will apply for a Canadian passport (or renewal) for Jack. The Respondent Father will sign the passport application. The Applicant Mother shall have possession of Jack’s passport and health card. The party in possession of the passport shall give it to the travelling party when the travelling party requires Jack’s passport for travel. The Applicant Mother shall provide a notarial copy of the passport and health card to the Respondent Father. The cost of the passport shall be shared equally.
Jack’s residence shall not be relocated outside the Region of Waterloo without the written consent of the parties or an Order of this Court.
The Respondent’s address is 7 Hearthbridge Street, Kitchener, Ontario N2R 1L5. The Respondent shall provide his address within three business days to the Applicant of any future change in address.
Holiday schedule
The holiday schedule herein takes priority over the regular schedule.
(a) Christmas Holidays in each year: Jack shall be in the care of the Respondent Father as follows:
(i) December 22 at 10:00 a.m. until Monday, December 23 at 7:00 p.m.
(ii) Christmas Day at 11:00 a.m. until Boxing Day at 7:00 p.m.
(iii) December 29 at 10:00 a.m. until December 31 at 7:00 p.m.
(b) Should school not be in session (for a Professional Development Day) on the Friday immediately preceding the Respondent Father’s weekend or the Applicant Mother’s weekend with Jack, Jack shall be in the care of the Respondent Father or Applicant Mother from Friday at 8:20 a.m. until return to school on the next scheduled school day (Monday return to school, or Tuesday return to school if Monday is a holiday). Regardless of the regular schedule, Jack shall be in the care of the Respondent Father on Father’s Day weekend, from after school on Friday to return to school on Monday morning.
(c) Regardless of the regular schedule, Jack shall be in the care of the Applicant Mother on Mother’s Day weekend, from after school on Friday to return to school on Monday morning.
(d) March Break:
(i) In even numbered years, the Applicant Mother shall have Jack in her care from Friday after school, at the commencement of March Break, to Monday return to school.
(ii) In odd numbered years, the Respondent Father shall have Jack in his care from Friday after school, at the commencement of March Break, to Monday return to school.
(e) Halloween:
(i) Regardless of the regular schedule, in even numbered years, Jack shall be in the Respondent Father’s care from after school (or 4:00 p.m. if school is not in session) overnight until return to school the following day (or 9:00 a.m. if school is not in session) and it is a regularly scheduled period of access for the Respondent.
(ii) Regardless of the regular schedule, in odd numbered years, Jack shall be in the Applicant Mother’s care from after school (or 4:00 p.m. if school is not in session) overnight until return to school the following day (or 9:00 a.m. if school is not in session)
(f) Summer Vacation:
(i) Jack shall be in the care of the Respondent Father for two non-consecutive, uninterrupted weeks for summer vacation, with one week being in July, and one week in August. Such holiday weeks to commence on a Saturday morning at 10:00 a.m. with return on the Sunday at 7:00 p.m., if it is a regularly scheduled period of access for the Applicant Mother.
(ii) The Applicant Mother shall also be entitled to two uninterrupted weeks for summer vacation with Jack, with one week being in July, and one week being in August. Such holiday weeks to commence on a Saturday morning at 10:00 a.m., with return on the Sunday at 7:00 p.m., if it is a regularly scheduled period of access for the Respondent Father.
(iii) The Applicant Mother shall have the first choice of her vacation weeks in even numbered years. The Respondent Father shall have first choice of his vacation weeks in odd numbered years.
(iv) The Applicant Mother shall provide written notice of the weeks she wishes to choose by March 1st in even numbered years, and by March 15th in odd numbered years.
(v) The Respondent Father shall provide written notice of the weeks he wishes to choose by March 1st in odd numbered years, and by March 15th in even numbered years.
(g) Other holidays and special days shall follow the regular parenting schedule.
Both parties may volunteer and go on school trips with Jack. The parties shall alternate such school trips and coordinate such alternating school trips and put them into Our Family Wizard. The Applicant Mother shall insert into Our Family Wizard the volunteer times and school trips she intends to participate in within thirty (30) days of the commencement of the school year and the Respondent Father shall put his volunteer times and school trips in Our Family Wizard fifteen (15) days thereafter. If there are unplanned volunteer times that arise throughout the school year, the Applicant/Respondent shall insert them as soon as practicable into Our Family Wizard and indicate whether or not she/he is attending.
If the Applicant Mother is not attending a school event/concert, she will notify the Respondent Father and he may attend. The Applicant Mother will make best efforts to attend the earlier show (practice) so that the Respondent Father may attend the regular parent show.
Exchange of Jack:
(a) When school is not in session, including Christmas vacation and summer school vacation, the exchange of Jack shall be at Waterloo Region Police Station, North Division, on the following terms, with drop off time at 9:00 a.m. and pick up time at 3:00 p.m. during the regular school year. Summer drop off times shall be 9:00 a.m. and 7:00 p.m.:
(i) Either the designate of the Respondent Father or the Applicant Mother will have Jack available in the lobby of the said police station at the designated time for pick up or drop offs.
(ii) The Applicant Mother will park in the visitor parking of the police station lot at Columbia/Weber Street.
(iii) The Respondent Father will park at the TD Canada Trust/Activa lot adjacent to and north of the visitor’s parking for the police station.
(iv) The Respondent Father’s designate will attend in the lobby of the police station for the purposes of the pick-up and drop off.
(v) The Respondent Father may attend such pick-ups and drop offs but shall remain at the TD Canada Trust/Activa lot adjacent and north of the visitor’s parking lot for the police station, and well in excess of 25 metres of the person of Ana Freitas.
(b) When school is in session:
(i) The Respondent Father may collect Jack from the school during drop off and pick up of the child.
(ii) At all times, the Respondent Father, during the school drop offs and pick-ups of the child, shall remain in excess of 25 metres from the Applicant Mother.
- There shall be an Order that, pursuant to ss. 36(2) and 36(4) of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 as amended, any police force having jurisdiction, including, but not limited to, the Ontario Provincial Police and the Waterloo Regional Police Service, are directed and authorized to:
(a) forthwith locate and apprehend the child of the relationship, namely, Jack Hilliard Christopher, born April 12, 2015, and return the said child into the care of the Applicant Mother/Respondent Father, in accordance with any Order to that effect made herein; and
(b) to take such other steps as may be necessary to lawfully enforce any Court Order made in respect of the relief requested herein.
Parenting arrangements may be open for review at any time after May 31, 2022, and either party may argue the issue of a material change in circumstance at the time of such proposed review.
The Respondent shall pay to the Applicant retroactive child support for the child, Jack Hilliard Christopher, born April 12, 2015, to and including December 31, 2020, as follows:
(a) $4,368 in respect of table child support.
(b) $900 in respect of s. 7 expenses (childcare).
As of January 22, 2021, the Respondent had not paid the retroactive support.
There are otherwise no arrears/retroactive child support due to the Applicant Mother by the Respondent Father to December 31, 2020, subject to any retroactive payment of wages, etc., by or through his employer, WSIB, or his employer’s insurer.
Each party shall bear their own costs with respect to the Court attendance on January 27, 2020, and the completion of the Partial Minutes of Settlement dated March 13, 2020.
For as long as child support is to be paid, the payor and recipient must provide updated income and disclosure to the other party each year, within 30 days of the anniversary of this Order, in accordance with s. 24.1 of the Child Support Guidelines.
Unless the Order is withdrawn from the Director’s office, at the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the Order shall be paid to the Director, who shall pay them to the person to whom they are owed.
[262] This Order bears post judgment interest at the rate of 2% per annum, effective from the date of this Order. Where there is a default in payment, the payment in default shall bear interest only from the date of the default.
[263] Not on consent:
- The parenting schedule during the school year shall be:
Jack shall be in the Respondent Father’s care:
(a) Week 1, Monday after school, or if no school, 2:50 p.m. to Tuesday morning to school, or 8:20 a.m. if school is not in session and Friday after school, or if no school, 2:50 p.m. until Monday return to school, or if no school, 8:20 a.m.
(b) Week 2, Wednesday after school or 2:50 p.m. if there is no school, to Thursday morning return to school or 8:20 a.m. if no school.
When the child is not in the care of his Father, as set out above, he is in the Mother’s care.
- Easter weekend shall be alternated as follows:
(a) In even numbered years, Jack shall be in the care of his Mother from Holy Thursday after school until Easter Sunday at 2:00 p.m. and in the care of his Father from Easter Sunday at 2:00 p.m. until his return to school or on Tuesday at 8:20 a.m.
(b) In odd numbered years, Jack shall be in the care of his Father from Holy Thursday after school until Easter Sunday at 2:00 p.m. and in the care of his Mother from Easter Sunday at 2:00 p.m. until his return to school or on Tuesday at 8:20 a.m.
Should either parent intend to travel outside of the Province of Ontario with the child, that parent shall provide to the other details of the travel as well as contact information.
Father shall pay Mother child support as follows:
The Respondent Father shall pay to the Applicant Mother, child support in the sum of $582.00 per month commencing January 1, 2021, and on the first day of each month for so long as his employment with Canada Post continues. On the month following the end of his employment with Canada Post, Father shall pay child support based on the greater of his actual income or his imputed income of $48,796.80 such that he shall pay child support in the sum of $450.00 per month thereafter, pending further Order of this Court or agreement between the parties. The parties shall proportionately split s. 7 expenses in accordance with their income.
Father shall within 48 hours advise Mother of any changes in his employment and shall provide to her confirmation of the reason why employment ended, or if he has obtained new employment, a copy of this employment contract or a letter outlining his remuneration.
Commencing June 1, 2022, support and proportionate s. 7 expenses shall be adjusted based on the greater of the payor’s prior year’s Line 150 Total Income from the payor’s prior year’s T1- General Income Tax Return or his imputed income as set out herein.
[264] If the parties are unable to resolve the issue of costs, Applicant Mother may file written submissions on costs within 21 days. Respondent Father may file responding written submissions within 14 days thereafter. Applicant Mother may provide brief reply seven days thereafter. Submissions are not to exceed four pages, plus a detailed bill of costs and copies of any offers to settle. There shall be no extension of these timelines without my permission. If a party does not provide submissions respecting costs in accordance with these deadlines, there shall be no costs payable to that party, although costs may still be awarded against that party.
D. Piccoli J.
Released: March 29, 2021
COURT FILE NO.: FC-16-FO000903-0000
DATE: 2020-03-29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANA MARIE FREITAS
Applicant
– and –
GERALD MESHACH CHRISTOPHER
Respondent
Defendnaondents
REASONS FOR DECISION
D. Piccoli J.
Released: March 29, 2021
[^1]: This case was argued under the old language of the CLRA. It has since been amended, and both the old and new language has been used in this decision.