J.P.E.H. v. A.S.E.H, 2021 ONSC 3267

COURT FILE NO.: FC-20-422

DATE: 2021/05/03

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

J.P.E.H

Applicant

– and –

A.S.E.H.

Respondent

Gonen Snir for the Applicant

Alexandra Kirschbaum for the Respondent

HEARD: April 23, 2021

JUSTICE SALLY GOMERY

[1] J.P.E.H. (“John”) and A.S.E.H. (“Ashley”) met in 2014 and married on October 10, 2017.[^1] They separated on December 11, 2019, following a violent altercation resulting in charges of assault, uttering threats and mischief against John.

[2] The parties have one child, E.E.H. (“Eva”), who is now 21 months old. Eva has lived with Ashley since the separation. She has also regularly spent time with John, with the exception of a five-month period from February to July 2020. John lives with his parents, Eva’s paternal grandparents.

[3] John began this application on February 28, 2020. On July 14, 2020, the parties signed interim minutes of settlement. Further to the minutes:

Eva’s primary residence is with Ashley.
John has parenting time each Monday, from 1:30 p.m. to 4:00 p.m.; every second Sunday, from 8:00 a.m. to 11:00 a.m.; and every second Tuesday, from 8:00 a.m. to 11:00 a.m. This results in total parenting time of five and a half hours each week.
John’s parenting time takes place at her paternal grandparents’ home, while they are there.
When Eva spends time with John, she is picked up at Ashley’s home by her paternal grandparents. John is prohibited from attending for these transfers; and
John is prohibited from removing Eva from the City of Ottawa without Ashley’s prior written consent or a court order.

[4] In this motion, each party seeks further orders. They agree that the court should set the amount that John should pay for child support. They also agree that Eva should spend more time with John, but disagree on how much time and how soon, and whether John’s parenting should be supervised by his parents. The parties also each seek orders with respect to disclosure and other collateral issues.

The parties’ history and their relationship with Eva

[5] Given the factors I must weigh in order to assess Eva’s best interests, I must make some preliminary findings about John and Ashley’s past and current relationship with each other and with their child.

[6] The evidence consists of the parties’ affidavits and some third-party records. Ashley and John give very different accounts of their relationship. They have not been questioned and have not testified in court. I am nonetheless required to assess the evidence before me, as best I can, based on the inherent plausibility of the parties’ accounts and the extent to which they are corroborated by third-party records.

Events prior to Eva’s birth

[7] Ashley alleges that John was violent and abusive throughout their relationship. She says that his physical abuse included pushing and dragging her, twisting her arm, choking and suffocating her, and throwing things at her. She also alleges that he isolated her from her friends and verbally abused her.

[8] John denies that he ever physically attacked Ashley. During court-mandated counselling sessions in which he participated in 2020, however, he is reported to have acknowledged that he had engaged in acts of physical violence towards his partner consistent with Ashley’s allegations. Given this acknowledgement, I find that there is cogent evidence that John engaged in abusive behaviour towards Ashley during their relationship, without any finding as to its frequency or severity.

[9] John alleges that the only issue in the parties’ relationship, prior to the separation, was Ashley’s mental health. He contends that she was depressed and occasionally aggressive, particularly after she became pregnant with Eva. In his April 11, 2017 affidavit, he produces screen shots of text messages he exchanged with a friend, “Irene”, who is married to a physician. Irene’s husband apparently suggested to him that Ashley’s depressed mood was due to her failure to take medication consistently, and proposed to refer her to a colleague who was a psychiatrist. John also alleges in his affidavit that Ashley’s mother confirmed to him that Ashley would “lose control” when she stopped taking her medication.

[10] Ashley acknowledges that she sought treatment for depression in 2016 and was prescribed a low dose of antidepressants. She went through a difficult period in the early stages of her pregnancy, in part because she was concerned about having a child within her abusive relationship with John. She denies, however, that she has ever suffered from anything more than mild depression or from any other serious mental health condition.

[11] The text messages produced by John do not corroborate his contention that Ashley suffers from a serious mental health condition. They establish, at most, that Ashley was upset and sad for an unspecified period of time during her pregnancy and may have suspended her use of some medication she had previously taken. John was having discussions about Ashley’s health and medical treatment without her knowledge and consent, and appears to have had limited insight into her condition or its cause. I do not infer that Ashley was trying to conceal her condition for some nefarious reason. Every individual has the right to keep information about their medical condition and treatment confidential, even from a partner.

[12] There is no persuasive evidence that Ashley has a psychiatric or psychological condition that compromises her ability to care for Eva, or that she made health decisions during her pregnancy that had any impact on her baby. In its March 31, 2020 letter closing its investigation, the Children’s Aid Society (CAS) noted that John had raised concerns about Ashley’s mental health and care of Eva. After meeting with Ashley on three separate occasions and speaking with her psychiatrist, the CAS worker investigating the case said that there was no information to suggest that that her mental health impacted her care of Eva. Ashley has also filed letters from two medical professionals from whom she has sought treatment. The first is a March 23, 2021 letter from a psychotherapist she has been seeing for over a year. The psychotherapist expresses the view that she has no concerns, based on her 15 sessions of counselling with Ashley, about her ability to parent Eva. The second is a letter is a letter dated April 17, 2021 from a physician she has been consulting since January 29, 2019 for anxiety. He states that she has greatly improved and that he never had any concern that she might harm herself or others.

Events from Eva’s birth to December 10, 2019

[13] John alleges that the parties shared childcare until they separated in December 2019. He contends that he changed his work routine to spend significant amounts of time with Eva, tried to be present at her bedtime, and “9 times out of 10” would feed her.

[14] Ashley alleges that John did not contribute significantly to Eva’s care during the first five months of her life, and only saw her for a few hours each day. She contends that she was exclusively responsible for putting Eva to bed, feeding her, changing her, and otherwise tending to her. Ashley also states that John forbade her from visiting her parents, Eva’s maternal grandparents, during this period.

[15] I cannot, at this stage, determine how involved John was in Eva’s care prior to the parties’ separation. There is however no evidence before me that either John or Ashley raised concerns about the other parent’s ability to care for Eva prior to December 10, 2019.

Events of December 10 and 11, 2019

[16] The parties’ separation was precipitated by incidents on December 10 and 11, 2019.

[17] Ashley alleges that, on December 10, 2019, John came home and saw Eva in her new car seat with a fitted cover on it. He initially said nothing about it but then became upset because he thought Ashley’s subdued mood was due to a medication issue. He began yelling and then placed Eva in Ashley’s car and drove away. Ashley says that she did not try to stop John because she was afraid of what he might do to her. She alleges that, although he returned with Eva later that night, John again threatened to take the baby away from her after she asked him to put her to bed.

[18] John alleges that, when he got home on December 10, 2019, he was concerned on seeing that Eva was in her car seat on the floor. He says that he confronted Ashley about the risk posed by a cover over Eva’s head. He alleges that, in response, Ashley admitted that she was not taking her medication. John acknowledges that he got upset and frustrated and left the house with Eva, telling Ashley “to get back on her medication if she wants to see our daughter again”. According to John, he went for a drive and then returned with Eva a few hours later.

[19] The next morning, according to Ashley, she brought Eva to her bedroom to feed her and play with her, which was their usual routine. John came into the room, took Eva and headed downstairs. He told Ashley he was taking their child away from her. Ashley told him that she would call the police. John took her cellphone from her, and Ashley said she would call from the gas station at the corner. In reaction, John put Eva in her car seat on the floor, pushed Ashley to the ground, lay on top of her, choked her, and threatened to kill her. When he stopped choking her and they both stood up, he pushed her down again, knocking the car seat across the floor. Ashley fought to free herself and ran to the gas station, where she called the police. By the time the police arrived, John had driven away with Eva.

[20] In his April 2020 affidavit, John admits that, on December 11, 2019, he put Eva in her car seat with the intention of taking her to his parents’ house. He says that Ashley ran after him as he began to leave, claiming that he was kidnapping Eva and that she would call the police. According to him, Ashley attacked him and, during their physical altercation, kicked the car seat. John then put Eva in the car, over Ashley’s objections, drove Eva to his parents’ house, and left her there under her grandparents’ care. When John returned to the matrimonial home to pick up his truck later that day, he was arrested by the police for assault, uttering threats and mischief. He was released only on the condition that he not communicate or come into contact with Ashley.

[21] I decline to make any finding as to what exactly what occurred between John and Ashley on December 10 and 11, 2019. I do however find much of Ashley’s account to be plausible. The police who attended at the home on December 11, 2019 also accepted Ashley’s version of events and charged John. Although John denies any physical violence towards Ashley in his affidavit, he admits that he unilaterally removed Eva twice from the matrimonial home and threatened to cut off any her contact with Ashley. In a counselling program later that year, John also admitted that, in addition to other abusive behaviour, he put his hand over Ashley’s mouth, threatened her, took away her phone, and swore at her. All of this is consistent with Ashley’s account.

[22] I find that the events that provoked the separation in December 2019 threatened Eva’s safety because, during the altercation, her car seat was kicked across the room. Her emotional safety and security were also compromised by being made to witness physical and verbal aggression between her parents. The police evidently were of the same view, as they referred the family to the CAS the same day.

Events between December 11, 2019 and July 2020

[23] The parties agree that, in the weeks that followed the separation, Ashley brought Eva over to his parents’ house so he could spend time with the baby. In his April 2020 affidavit, John says that these visits in fact occurred “almost every day”.

[24] According to Ashley, she reported John’s abuse to his parents a few days after the separation. They were shocked and supportive. They told her that domestic violence cannot be condoned, but that John still loved her and wanted a reconciliation. As a result, on January 31, 2020, Ashley agreed to a revised conditional release order that would allow John to visit Eva in the matrimonial home. This order was conditional on John’s participation in New Directions, a group counselling program in Ottawa for individuals charged with incidents of domestic violence.

[25] In his April 2020 affidavit, John says that Ashley began to tell his family in January 2020 that she “would like me back at home, and that she wanted to amend the conditions to allow me to come back home”. The parties’ expectations of what would happen after January 31, 2020 do not appear to have aligned. According to Ashley’ affidavit, she expected that John’s focus would be spending time with Eva. Instead, she says he wanted to talk about their relationship. In response, she told him she wanted a divorce.

[26] John says that he visited the matrimonial home twice a day in the period immediately after January 31, 2020, so he could spend time with Eva. Ashley contends that he visited three or four times, at most, over a three-week period. According to Ashley, he also told her that she deserved to be physically assaulted. John does not deny this in his affidavit but says that Ashley insulted him repeatedly during his visits and threatened to terminate her waiver of the no-contact order.

[27] At some point in February, Ashley became uncomfortable with John coming to the matrimonial home and began bringing Eva over to his parents’ house so John could see her. John acknowledges these visits in his affidavit.

[28] This informal arrangement came to an end on February 21, 2020. John claims that, on that day, Ashley brought a passport application for Eva and told him that, if he did not sign it, “you should say goodbye to your daughter because you will not be seeing her”. She did not tell John why she wanted a passport for Eva. As a result, he refused to sign the application. He alleges that Ashley retaliated by reinstituting the no-contact order and refusing to bring Eva over to his house for any further visits.

[29] Ashley’s account of the exchange on February 21, 2020 is different. In her April 16, 2021 affidavit, she says that she asked John to sign a passport application for Eva when she dropped her off at his house. He refused without asking why she wanted a passport for Eva. They got into an argument, and Ashley asked John “if he thought it was acceptable to hit women”, to which he replied: "Why do you think I was doing it?" and added that he should have punched her “since that's all that was left for him to do”. Following this confrontation, Ashley says that she was afraid that John would assault her again. She also feared allowing Eva to visit John again, because he now had a passport application that Ashley had signed. She says that John had, in the past, stated that he wanted to return to Lebanon, where he was born, and that this would be a better place to raise children.

[30] Although I can make no definitive findings based on the record, I find that there is cogent evidence that John threatened Ashley in late February 2020; that she renewed the no-contact order because she feared that he would harm her; and that she sincerely feared that he might leave the country with Eva. I find Ashley’s account of the exchange on February 21, 2020 plausible. As John admits, Ashley consistently arranged for Eva to spend time with him after the separation, despite the December 2019 incidents giving rise to criminal charges. It seems unlikely that she would deprive John of further contact absent an incident that caused her to reconsider whether this put either herself or Eva at risk.

[31] On February 27, 2020, John’s counsel sent a letter to Ashley, demanding five hours of time each day with Eva, failing which he threatened to seek an urgent order from the court. In response, Ashley advised that John could not have any further parenting time with Eva until the CAS completed its investigation.

[32] On March 31, 2020, the CAS sent a letter to Ashley setting out the results of its investigation. Based on its interviews with the parties, it determined that Eva was at risk of emotional harm due to partner violence as well as at risk of physical harm as her car seat was reportedly knocked during the incident while she was in it. The CAS nonetheless decided to close its file, on the basis that the parties were living apart, John was subject to a no-contact order, and legal proceedings were underway in this court.

[33] Over the next six weeks, the parties were unable to reach an agreement on the resumption of John’s parenting time with Eva. Ashley offered five hours each week but John wanted overnight visits. They also disagreed on the need for supervision. As a result, John did not see Eva.

[34] On April 23, 2020, McEachern J. denied John’s request for an urgent hearing of his motion for parenting time, citing Ashley’ offers of access, concerns about domestic violence and John’s history of access. McEachern J. instead referred the parties to a case conference.

[35] John made a second request for an urgent hearing in June 2020. Master Kaufman agreed with McEachern J. that urgency was not made out and denied the request. He also awarded Ashley $900 in costs, payable forthwith.

[36] As already noted, the parties signed interim minutes of settlement on July 14, 2020. According to John, he felt he had no choice but to agree to Ashley’s conditions for parenting time since he had not seen Eva for several months. As found by Master Kaufman in his costs endorsement, however, the primary reason for John’s lack of parenting time after April 3, 2020 was that he refused the five hours a week offered repeatedly by Ashley.

Events from July 2020 to date

[37] John acknowledges that, since the minutes of settlement were signed, Ashley has complied with them and he has had parenting time with Eva each week. He complains, however, that the current arrangement prevents him from bonding with his child. He also contends that Ashley is being unreasonable in maintaining no direct contact with him.

[38] John participated in the New Directions program from July to September 2020. The discharge report to the Crown confirmed that he had attended twelve sessions. John was given a score of 2/5, meaning that he met the program’s minimum standards. The report stated that he admitted that there was an incident of family violence on December 11, 2019, although he alleged that this was provoked by his discovery that Eva had been left by Ashley in a covered car seat, that Ashley was “off her medication” and attacked him, and that they both pushed and shoved each other. He admitted, however, that he put his hand on Ashley’s mouth and threatened her. He also acknowledged that he had engaged in various forms of abuse in his relationships, including name calling, insulting and swearing at his partner; blocking her access to the car or the phone; throwing, and engaging in physical violence. As already noted, John’s admissions are consistent with Ashley’s allegations about physical and emotional abuse.

[39] The New Directions report concluded that John’s accountability for his abusive behaviour increased as a result of the program but that “he still seemed to feel as though it was somewhat justified due to the circumstances he found himself in with his wife”. The report also noted that John did not seem to understand how his abusive behaviour could impact Eva. He was instead focused on blaming Ashley for the December 2019 incident, to the point where this was distracting for other participants in the program.

[40] In December 2020, the criminal charges against John were withdrawn. In return, John signed a peace bond requiring him to remain at least 100 metres from Ashley and to refrain from contacting her unless she authorizes otherwise in writing. The bond is in effect until June 11, 2021.

Decision-making responsibility for Eva

[41] Ashley seeks to retain sole decision-making responsibility on an interim and without prejudice basis. It is not clear whether John contests this.

[42] I find it is in Eva’s best interests to leave sole parental decision-making responsibility with Ashley, without prejudice to John’s right to seek joint responsibility at a future date.

[43] John is entitled to receive a copy of Eva’s medical records and to be kept aware of any medical treatment she is receiving or upcoming appointments with physicians. He is also entitled to know what childcare arrangements Ashley has made while she is working and any daycare in which she proposes to enroll Eva. I order Ashley to disclose this information to John within ten days of this endorsement.

[44] I also order Ashley to tell Eva’s family doctor(s), treatment providers and daycare providers that John is entitled to request and receive information about Eva. This will allow John to communicate directly with third parties involved in Eva’s care for the purpose of keeping abreast of her development and needs.

[45] John requests that he be allowed to participate in any medical appointments for Eva and in any meetings with any other treatment or care providers. Given my decision on Ashley’s request for a no-contact order below, the parties’ joint participation in appointments and meetings is not possible for the time being. This request is therefore denied.

[46] If John has any concerns about treatment that Eva is receiving or a proposed childcare or daycare arrangement, he should raise these concerns with Ashley and communicate the reasons for them in the manner provided for in this endorsement. Ashley shall attempt to address any reasonable concerns raised by John. Given however that she has, for the time being, primary decision-making responsibility for Eva, Ashley shall have the final say in case of any disagreement between the parties about medical or educational decisions on Eva’s behalf.

[47] Finally, I order that Ashley should have possession of Eva’s government-issued documents, including her birth certificate, health card, and passport. I grant her the right to obtain a passport for Eva without John’s written consent.

John’s parenting time

[48] John seeks to have parenting time with Eva every weekday from 8:30 a.m. to 3:30 p.m. and on every second weekend from Saturday morning to Monday morning. In the alternative, he seeks time with her on Tuesday, Wednesday and Thursday each week, and from Saturday to Sunday every second weekend. John argues that Ashley works every weekday from 8:30 a.m. to 3:30 p.m. and it is preferable that Eva spend time with him and his family than with other caregivers. He also seeks to remove the condition that his time with Eva be spent in the company of his parents. He points out that the CAS did not specify that his time with Eva should be supervised.

[49] Ashley proposes to increase John’s current parenting time to a total of ten hours each week. She is open to eventual overnight visits if Eva appears to tolerate longer daytime periods with John and communications between the parties improve. She says, however, that she is worried about the care that Eva is getting when she spends time with John, as she sometimes returns home hungry and tired. She asks that I order John to provide photographic evidence that he has adequate accommodations in his parents’ residence for Eva before increasing his parenting time, and that increases should be made gradually.

[50] Any decision on parenting time must be made based on Eva’s best interests and, in particular, her physical, emotional and psychological safety, security and well-being. I must specifically consider the factors set out at s. 6 of the Divorce Act, RSC 1985, c 3 (2nd Supp) and s. 24 of the Children’s Law Reform Act, RSO 1990, c C.12. In the circumstances of this case, I find the following factors to be important:

Eva’s needs, given her age and stage of development, including her need for stability. Eva is not yet two years old, and so benefits from a regular routine with respect to sleep, food and social activities.
The nature and strength of the Eva’s relationship with each of her parents and grandparents. Eva spends most of her time with her mother. This does not however mean that she should not have an opportunity to develop a strong relationship with her father and her paternal grandparents.
Each parent’s willingness to support the development and maintenance of Eva’s relationship with the other parent. Ashley has consistently taken steps to either arrange for Eva to spend time with her father and paternal grandparents or offer that she do so. John has, on the other hand, threatened to remove Eva from her mother’s care.
The history of Eva’s care, and any plans for it, and the ability and willingness of each parent to care for and meet Eva’s needs. Since the parties’ separation, Ashley has provided the bulk of Eva’s care, including investigation for some speech development issues. John says he would like to contribute equally. He has however provided little information about how he plans to care for Eva. In her April 16, 2021 affidavit, Ashley states that, when she has asked John whether the baby is being fed during her visits with him, he has replied “I don’t know”. John has not filed a supplementary affidavit denying this. I infer that, during Eva’s visits with her father, it is her paternal grandparents who are taking care of her some or all of the time.
Eva’s cultural, linguistic, religious and spiritual upbringing and heritage. John would like to ensure that Eva spends time with the paternal family during major religious holidays, such as Orthodox Easter, and can attend weekly Sunday church services with his family. Ashley has not indicated whether this is a priority for her.
The ability and willingness of each parent to communicate and cooperate, in particular with one another, on matters affecting Eva. The parties’ inability to communicate constructively with each other is a concern. I am also concerned that John continues to seek direct contact with Ashley, against her wishes. His affidavit evidence and the letter from New Directions suggest that he minimizes his responsibility for past conflicts and trivializes Ashley’s reaction to the events of December 10 and 11, 2019.
The principle that Eva should have as much time with each parent as is consistent with her best interests. I agree with John that he should be provided with additional parenting time absent a compelling reason not to do so.

[51] Since there is a history of family violence, I must also consider its impact on Eva in terms of physical, emotional and psychological harm or risk of harm, and whether family violence could compromise her safety or that of Ashley. If, however, I find that either party’s past conduct is irrelevant to the exercise of their parenting time, I may not take it into consideration; s. 6(5).

[52] I find that the greatest threat to Eva’s well-being to date,has been the risk of emotional or psychological harm as a result of witnessing violent confrontations between her parents. This risk can be mitigated through a no-contact order.

[53] Aside from the allegation with respect to the kicking of Eva’s car seat on one occasion, there is no evidence that either parent has ever engaged in any physical violence towards her. Ashley was willing to leave Eva with John and her paternal grandparents between December 11, 2019 and February 21, 2020, without any formal supervision requirement. She sought supervision after this date because she feared that John might remove Eva from Ottawa if he were permitted time alone with her. There is no evidence to suggest that John’s parenting should be supervised for any other reason.

[54] Supervision is generally imposed only temporarily and in cases where there is a proven risk of harm to a child. I therefore agree with John that the interim order should be varied to remove the requirement that he be accompanied by his parents when he is with Eva.

[55] I also accept John’s submission that it would be in Eva’s best interests to spend more time with him and his extended family. Ashley admits that, in the last couple of months, Eva appears to be happier when returning from time spent with John. She admits that Eva is not used to being in the care of anyone except her.

[56] Having said this, John’s proposed order, which would increase his parenting time from ten hours to 118 hours every two weeks, would not provide Eva with the stability that is important to a child her age. It would therefore be contrary to her best interests.

[57] Ashley has also raised legitimate concerns about arrangements that John has made, or failed to make, for Eva’s care at his parents’ home. In these circumstances, I find it would be premature to provide for any overnight visits, until such time as the court can ascertain that Eva is being well-cared for during expanded daytime visits with John.

I therefore order as follows:

Beginning May 10, 2021, John shall have parenting time as follows: Week 1: Sunday 8:30am to 11:30am and Tuesday 8:30am to 3:30pm Week 2: Tuesday 8:30am to 3:30pm and Wednesday 8:30am to 11:30am
Beginning June 21, 2021, John’s parenting time shall be increased as follows: Week 1: Sunday 8:30am to 3:30pm and Tuesday 8:30pm to 3:30pm Week 2: Tuesday and Wednesday 8:30am to 3:30pm

[58] It shall be John’s responsibility to arrange for transfers of Eva for the purpose of his parenting time, while complying with the no-contact order discussed below.

[59] This order is without prejudice to John’s right to seek further parenting time with Eva, including overnight visits, after September 6, 2021. This presupposes that the parenting time I am ordering now appears to be working in Eva’s best interests; the evidence must show that she is being well-fed, having naps and otherwise being well-cared for when she is with her father. Before obtaining any further parenting time, John shall also be required to provide detailed information about the arrangements in place for her care if he were provided more time, including overnight visits. The parties may also vary, on consent, the schedule I am ordering, to accommodate changes in their work arrangements and Eva’s entry into daycare or kindergarten.

[60] John also seeks detailed orders with respect to parenting time during religious and civic holidays, birthdays and the summer holidays.

[61] Given that Eva is too young to attend school, there is no need to make a schedule specifically for the summer holidays or civic holidays. I do however order that the parties should each have the following parenting time, even if it conflicts with the schedule of parenting time otherwise in place.

John shall have parenting time with Eva from 8:30am to 3:30pm on Easter Sunday on the Orthodox calendar. Ashley shall have parenting time from 8:30am to 3:30pm on Easter Sunday on the Roman Catholic calendar.
Eva shall spend 8:30am to 3:30pm on Christmas Day with John on years ending with an odd number, and with Ashley on years ending with an even number.
Eva shall spend from 8:30am to 3:30pm on New Year’s Day with John in years ending with an even number, and with Ashley on years ending with an odd number.
Eva shall spend from 8:30am to 3:30pm on Canada Day with John on years ending with an odd number, and with Ashley on years ending with an even number
Eva shall spend from 8:30am to 3:30pm on her Birthday with John in years ending with an odd number, and with Ashley on years ending with an odd number.
Eva shall spend from 8:30am to 3:30pm with John on his birthday and on Father’s Day. She shall spend from 8:30am to 3:30pm with Ashley on Ashley’ birthday and on Mother’s Day.

[62] This schedule is again subject to variation if both parties consent.

Extension of the non-contact order

[63] Ashley seeks a no-contact order to replace the conditions imposed in the criminal proceedings, which will expire shortly. John opposes this, arguing that there is no reason why he should not be allowed to pick Eva up at Ashley’s home and that the current arrangement is difficult for the paternal grandfather due to his failing health.

[64] In its March 31, 2020 letter, the CAS terminated its involvement in the family based on the parties’ separation and the condition of no contact between the parties. In its view, Eva was at risk of both physical and emotional harm if the parties were together. I share this view, based on the history of their relationship.

[65] Pursuant to s. 35 of Children’s Law Reform Act, a no-contact order may be made if a party reasonable grounds to fear for their safety. Although John participated in New Directions program, it appears that he has not fully taken responsibility for the events of December 11, 2019. He has not refuted Ashley’s account of his statement to her on February 21, 2020 about punching her in the face. I therefore accept that Ashley genuinely fears that John may engage in physical or verbal aggression towards her.

[66] I also find that a continued no-contact order is in Eva’s best interests, given the CAS’ final determination and the parties’ history.

[67] I accordingly conclude that a no-contact order on the terms proposed by Ashley is appropriate. This means, among other things, that John must remain at least 100 metres from Ashley until the court orders otherwise or Ashley consents in writing to remove this condition. If the paternal grandfather’s health does not permit him to continue being involved in pick-ups and drop-offs of Eva, John will have to seek Ashley’s agreement for another arrangement that does not involve John coming to Ashley’s home or Ashley coming to John’s home when John is present.

Disclosure

[68] I order John, within ten days of this endorsement, to disclose his bank and credit statements from October 1, 2017 to date, or to provide Ashley with written consent to allow her to obtain records from any bank or financial institution he has dealt with during this period and a list of the relevant banks and relevant institutions for this purpose. This disclosure is required based on Ashley’ allegations that John earns unreported income from a marijuana grow-op business and from real estate he sold in early 2020.

[69] John asks for an order requiring disclosure by the CAS of its records with regards to its investigation. Ashley states that she has already indicated that would consent to the proposed disclosure. I order the CAS to disclose its records to John and Ashley, but authorize it to sever any portion of the record that contains the private information of any third parties or privileged information of either party.

[70] John also seeks disclosure of:

a list of all mental and medical health physicians and professionals that Ashley has consulted in the past four years;
complete medical records from all such physicians and professionals;
a list of all the pharmacies in which Ashley has obtained her prescriptions; and
Complete medical records from such pharmacies.

[71] I do not find that there is any basis to order sweeping disclosure of Ashley’s medical records or information about her past and current treatment providers, given the absence of evidence that she has any medical condition that impacts her ability to parent Eva or that would otherwise be relevant to any issue in dispute.

Communications between the parties

[72] The parties currently communicate through their lawyers or through Eva’s paternal grandfather. Ashley suggests that they exchange a logbook when Eva is transferred between them. John proposes the use of Our Family Wizard, a computer application to facilitate communication between parents who have separated.

[73] Given the history between the parties and the continued no-contact order, I find that it would be preferable for the parties to register on Our Family Wizard or a similar application. Their communications shall be strictly limited to providing each other with information about Eva’s sleeping patterns, food intake, health, education and general welfare, and to make arrangements for parenting time. The costs of registering for the application and any annual fees shall be shared equally between the parties.

[74] In the event of an emergency while Eva is with John, communication should take place between John’s mother and Ashley’ mother.

Eva’s passport and travel with her parents

[75] Ashley seeks an order permitting her to travel with Eva, without John’s prior consent, and an order that John not be permitted to travel with Eva outside of Ottawa without her prior consent. John wants an order that neither parent should be able to remove Eva without prior written consent, which will not be unreasonably withheld.

[76] Based on the history of John’s threats to remove Eva and Ashley’ evidence about his stated intention to return to Lebanon, I agree with the order proposed by Ashley on this issue as well as a police enforcement order.

Child support

[77] John agrees that he should pay child support and proposes monthly support of $151.42, based on an income of $18,848 reported on his 2020 T4 slips. He alleges that he worked in a restaurant until March 2020 but was laid off due to the Covid-19 pandemic. He currently does some construction work but states that he earns little income.

[78] Ashley contends that John’s principal source of income are drugs sales, most of which are made in cash, and that he under-declares his annual income for tax purposes. She asks the court to order monthly child support of $227.75 based on an imputed full-time minimum wage income of $27,360. She also seeks further financial disclosure so that she can establish his actual income.

[79] On the evidence currently before me, I cannot determine whether John earns more than his reported income. I therefore order that he must pay child support for Eva in the amount of $151.42 each month, retroactive to December 11, 2019, and going forward payable on the eleventh day of each month. John shall pay the arrears of support due as of May 3, 2021, in the amount of $2574.14, within 30 days of this endorsement. The order for child support made today is without prejudice to Ashley’s right to seek further retroactive support if, after receiving financial disclosure, she can prove that John’s income is higher than reported.

Life insurance

[80] In her notice of motion, Ashley seeks an order that John shall purchase life insurance in the amount of $250,000, and that he shall maintain and provide annual proof of the insurance for as long as child support is payable. John has not taken a position on this issue.

[81] I agree that the proposed order is appropriate and therefore order John to purchase life insurance in the specified amount.

The parties’ truck

[82] Ashley seeks an order that the parties’ Dodge Ram be returned to her so that she can sell it back to the dealership, in order to reduce or eliminate her liability for making monthly payments on the joint car loan taken out in 2018 from Federation des Caisses Desjardins du Quebec (“Desjardins”) to purchase it. In her affidavit, she states that John has had sole possession of the truck since the separation but has sometimes failed to make monthly payments. Ashley has produced letters from Desjardins demanding immediate payment of monthly installments that John has filed to make since the separation. She says the missed payments have affected her credit score and are an attempt by John to harass her.

[83] John has not responded to these allegations in his affidavits. In argument on the motion, his lawyer stated that he has now brought all payments on the car up to date. There is however no evidence on this point.

[84] I order that John, within 30 days, should either (a) produce confirmation from Desjardins that he has assumed sole responsibility for payment of the balance owed on the car loan; or (b) deliver the truck to Ashley so that she can sell it and use the proceeds to repay the loan, without prejudice to Ashley’ right to seek a determination from the court that any outstanding balance remaining should be assumed solely by John.

Other monetary claims by Ashley

[85] In her notice of motion, Ashley seeks orders against John requiring him to pay:

i. the outstanding $900 costs amount pursuant to Master Kaufman’s endorsement dated July 3, 2020. ii. money he borrowed from her during the marriage, including but not limited to a $15,000 loan to her, his equal share of a furniture loan, and his share of property tax payable on the matrimonial home.

[86] The cost award payable pursuant to the July 3, 2020 endorsement is due. No further formal order is required for Ashley to enforce her claim for these costs or to seek remedies against John if he continues to refuse payment.

[87] I am not prepared to adjudicate other monetary claims by Ashley based on the evidence currently on the record.

Ashley’s name in these proceedings

[88] Ashley seeks a modification of the title of proceedings so that her name is her maiden name “A.S.” and not “A.S.E.H.”. She says that she did not take John’s surname when they married and would like the proceedings to reflect this. John has not taken a position on this. I order that the title of proceedings be amended.

Case management

[89] Ashley seeks an order that the judge hearing this motion be seized with this file going forward. I do not find, on the current record, that ongoing case management is warranted.

Costs

[90] As success on the motion and cross-motion is divided, the parties should consider whether they wish to pursue costs. If one or both of them decide that they wish to seek costs and cannot settle the issue, they shall each serve and file a costs outline within twenty days of this endorsement. The costs outline shall be no longer than three pages in length and they shall attach a draft bill of costs as well as any other relevant document.

Justice Sally Gomery

Released: May 3, 2021