COURT FILE NO.: 16-772

DATE: 2021/05/20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Amanda Proulx

Applicant

– and –

Robert Proulx

Respondent

Jeremy Dolgin for the Applicant

Peter Liston for the Respondent

HEARD: December 4, 2020 (Pembroke)

REASONS FOR decision

Somji j

Overview

[1] The primary issue in this trial was the parenting plan for the parties’ nearly 10-year-old child H.P. (“H.P.” or “child”). The parties seek a decision on who should have decision-making responsibility for H.P., where he should live, and what parenting time he should have with the parties. The parties also seek a decision on issues of child support and division of property.

[2] The parties were in an 18-year relationship and have not resided together since September 24, 2016. On that day, the Applicant mother, Ms. Amanda Proulx (“mother”), left the home with H.P. She also made criminal allegations against the Respondent father, Mr. Robert Proulx (“father”). On March 21, 2020, the father was acquitted of all criminal charges following trial.

[3] Since the separation, H.P. has lived with his mother and goes to school in the town of Renfrew. The mother lived with her parents in the nearby town of Arnprior following the separation but has since returned to the matrimonial home (“MH”) in Renfrew with her new spouse. The mother has had de facto decision-making responsibility for H.P. since separation. She seeks a continuation of the status quo with her having sole decision-making responsibility for the child, primary residence with her, and parenting time between the father and child at the court’s discretion.

[4] Following the separation, the MH was vacant, but the father was prevented from returning to live there because of a criminal court order. The father temporarily moved in with his sister and her children in Ottawa but has since relocated with his new spouse to Barrhaven. Barrhaven is approximately an hour away from Renfrew. An interim parenting order was put in place on February 2, 2017, and sets out an access schedule for the father. The father sees H.P. on alternate weekends and receives additional parenting time during PD days and other holidays.

[5] The father seeks joint decision-making responsibility and for each parent to have equal parenting time with the child. The challenge in this case is determining what parenting plan is in the best interests of H.P. given that the parties presently live an hour away from each other.

[6] The matter proceeded to trial before me over four days in December 2020. The primary witnesses were the mother and father. I also heard testimony from the father’s new common law spouse Stephanie Wagar, the father’s sister Natasha Hamlyn, his brother-in-law Kevin Hamlyn, and his nephew Kalib Hamlyn. The mother did not call any witnesses at trial. The parties filed documentary evidence, including excerpts of testimony from the father’s criminal trial. A report was also filed from the Office of the Children’s Lawyer (“OCL Report”).

[7] Since the trial was heard, there have been amendments to the Divorce Act which came into effect on March 1, 2021: SC 2019, c 16. This includes changes in terminology. Where appropriate, I have relied on the language in the amended legislation. For example, custody is replaced with “decision-making responsibility” and access is replaced with the term “parenting time”.

Background Facts

A. Circumstances before separation

[8] The mother and father are both in their early 40s. They met in 1998 while attending Police Foundations at Algonquin College and moved in together shortly after. They initially lived in Ottawa and then moved to Renfrew, the mother’s hometown, in the spring of 2004. They were together for almost 18 years, until their separation in September 2016.

[9] The parties had a close relationship with both the maternal and paternal families. While they were living in Ottawa, they saw the father’s family regularly and continued to do so even after their move to Renfrew. The mother’s family lives close to the MH in Renfrew, and they saw the maternal grandparents and members of the mother’s family often.

[10] Both parties acknowledged that the parents were initially a very close couple. This was corroborated by the father’s sister Ms. Hamlyn. However, it was clear from the testimony of all the witnesses that the last five years of the relationship were fraught with tension and conflict.

[11] The father testified that the couple had a good relationship at the start, and even up until 2010, things were relatively stress free. There was even a period where they were working at the same place and saw each other 24/7. They also shared a common interest in rescuing pit bull dogs.

[12] In 2009, the mother developed a medical condition and had to undergo surgery. The mother testified that the father was scared and worried. The mother testified it affected their relationship and they started to grow apart, but she did not explain how.

[13] Towards the end of 2010 or early 2011, the mother became pregnant. She testified that the father was nervous, scared, and unsure if he wanted a baby. The mother was working 12-hour shifts at the time for a carpet manufacturing company. The father was working at a call center. Since the parties were of the Catholic faith, the mother wanted to be married before giving birth, and hence, the wedding in June 2011.

[14] The father’s testimony suggested that things had started to worsen for the couple even before the birth of their child in October 2011. The father had trouble coping at his own wedding in June 2011. Someone had placed empty chairs in the front for those who had passed away and could not be there. It was meant to be a goodwill gesture, but it depressed the father. He left the ceremony and went walking for several hours until he was located by an uncle who brought him back to the ceremony. The incident, understandably, upset the mother. The father testified he thought she hated him from that moment forward.

[15] During this same period, the father was also experiencing issues with his employer and took stress leave in July and August 2011. He did not view his leave as being well received by his employer because, as he put it, mental health was stigmatized and considered as an excuse to get out of work. Requesting another parental leave later that year after H.P. was born caused further difficulties with his employer.

[16] The father acknowledged in his testimony, and also to the OCL investigator, that he was initially unsure about having the child. He had a poor and difficult upbringing. His own father had committed suicide when he was eight years old. He was nervous about introducing a child in his life without his “own life being set”. He wanted to be able to offer more to his child, like a real home and trips, which he never had. However, he testified that those feelings changed entirely from the moment H.P. was born on October 3, 2011. As corroborated by his family members, the father fell in love with the child immediately and was entirely committed to having him in his life.

[17] Following the delivery, the mother remained in the hospital for two weeks to recover. She took a one-year maternity leave. The father was permitted a few months of paternity leave from his employer, but by June 2012, he stopped working altogether.

[18] The mother testified that 2011 was a “pretty intense” year but did not really explain why. However, it became abundantly clear upon hearing the father’s testimony that the reason was because, during 2011, the father had a serious emotional and mental breakdown precipitated by work, financial, and marital stress. It culminated with him attempting to take his own life.

[19] On Christmas Day 2011, the parents went to the maternal grandparents’ home with their baby and the family, but the father found he was not able to cope with Christmas celebrations. He asked the mother to return home with him and the baby. He wanted to have their first Christmas with their son alone as a family whereas the mother wanted to share the child’s first Christmas with her family. The father returned home on his own and collected some ropes with the intent to take his life. Someone in the mother’s family must have sensed something was amiss because, fortunately, the brother-in-law went to the house and told the father he should not be alone at home for Christmas.

[20] The father testified that this event was a life-changing moment for him. His own father had committed suicide, and he realized he did not want his son to go through what he did. In the new year, the father went to see a physician to get help for his mental health. The father filed a written entry in support of his Affidavit, dated January 4, 2017, that chronicles the stresses leading up to this incident and the circumstances of the day. They entries are largely consistent with his trial testimony. I accept the father’s evidence.

[21] When asked to describe the period from H.P.’s birth in October 2011 to June 2012, the mother testified that the father was anxious, nervous, and had a quick temper. She testified there was a lot of fighting and screaming, after which the father would withdraw “all of a sudden”. She testified that the father went to see a doctor at Arnprior and District Memorial Hospital and was taking medication which would make him sleep more. She testified that their relationship was strained, that there was no sexual intimacy, and that they did not do too much as a family. Their social life remained the same. The father’s sister and mother would come up for weekends. Her own parents and sister, who lived nearby, would come to the house two to four days a week.

[22] Things did not improve even after the father got professional assistance for his mental health issues in early 2012. Both parents testified that from 2012 to 2016, their relationship worsened, each highlighting different aspects of this period. While the mother did not refer to the events of Christmas 2011, she did acknowledge the father was dealing with mental health issues. She testified that he had stopped working in 2012 and was on disability. He worked for a period in 2013, assisting his uncle with construction in Ottawa three days a week, and sometimes would stay there overnight. She continued working, and in 2015 she got a job with Canada Post.

[23] The mother claims that because of his mental health issues, the father was withdrawn and she was doing a lot of the work of raising H.P. The communication between the parents was poor and she felt like she was living with a roommate. The parents were fighting and critical of how the other dealt with H.P. She claims the father was critical of her dress and makeup. They also fought about money. The mother acknowledged there was no physical or sexual intimacy and she “didn’t feel it anymore”. When the father would try to hug and kiss her, she would ask him not to. Sometimes she would go further and shove him to let him know “no thank you”, and that there were also times when she hit, punched, or shoved him to get him off her, but he would keep pursuing things. The mother also refers to specific instances of violence on the part of the father against her and the property, which are addressed in the analysis section below.

[24] The father describes the period between 2012 to 2016 as difficult. He was initially getting treated for his mental health issues. He was seeing psychiatrists and doctors and trying to determine what medication would work for him. He was directed by his doctors not to work. This meant that the mother had to work outside the home, and it was his theory that this caused resentment on her part because she had envisioned being a stay-at-home mother. He acknowledged that money was tight, and that their debts were accumulating. The father claims that because the mother was at work, he was the primary parent during this time, except for a three-month period when he solicited the help of the maternal grandmother three or four times a week because he had a pinched sciatic nerve. In addition to parenting, he was also doing a lot of renovations to the MH and he also worked construction for his uncle in Ottawa for a period of time. The father also acknowledged that there were differences in their parenting approaches.

[25] The father testified that despite his hard work with parenting and improving the home, “none of his efforts were ever reciprocated with any affection” from the mother. He initiated affection, but it was rebuffed verbally and physically. He described at the criminal trial, in his Affidavit, and during this trial, instances of the mother hitting, punching, and sometimes biting him on various parts of his body.

[26] The father testified that, by 2015, he asked the mother for a separation. He suggested that she move in with her parents who lived nearby and they would work out an arrangement for H.P. According to him, the mother’s response was that they “can beat this”. The father testified that the parties started marriage counseling in 2015, but the mother refused to continue after two sessions.

[27] The father testified that he also began to feel alienated from the maternal grandparents, with whom he had always gotten along. About three months before the parties’ separation in September 2016, he asked the maternal grandmother to attend a meeting with him and the mother. He asked the grandmother what was going on, what was being said about him, and why he no longer felt like part of the family. During this same conversation, the father broached the subject of the mother returning to her parents’ home and working out an arrangement for H.P. He said the mother sat silent through the conversation, which was witnessed by the maternal grandmother.

[28] In her testimony, the mother made no reference to the father’s request for a separation before September 2016, the conversation in the presence of her mother, or the fact that the parents had tried to go to marriage counselling.

[29] While it is impossible to pinpoint exactly when the parent’s relationship started to deteriorate, I find, based on the testimony of both the parents, that by the summer of 2011 and until their separation in September 2016, the parents’ relationship was fraught with tension and conflict. Several factors contributed to the decline in the marriage.

➢ First, the parents were both coping with the impact of the father’s mental health, likely as early as the summer of 2011;

➢ Second, after H.P. was born, the parties were learning to parent H.P. and both acknowledged they had different views on how to do so;

➢ Third, there were periods when either or both parents were unable to work, causing considerable financial strain; and

➢ Fourth, somewhere along the line, the mother no longer felt any emotional or sexual attachment to the father.

[30] Sexual activity, even within a marriage, must be consensual, and the mother was entitled to refuse the father’s sexual advances. Having said this, it is clear that during this five-year period, the parties had very different expectations for emotional and sexual intimacy in their marriage, which contributed to the parties’ conflicts.

B. The events surrounding the separation

[31] The parties separated on September 24, 2016.

[32] The father takes the position that the mother’s departure on this date was not unprompted and that she had a plan to leave even though he was the one asking for a separation. He explained that, on that weekend, he had arranged to go fishing with his own son, a friend named Tom and another disabled young man. Fishing was something the father did regularly with H.P. In fact, it was clear from the testimony of all the witnesses that the father and the entire paternal family are outdoor enthusiasts who spend a lot of time camping, boating, hunting, and fishing.

[33] On the day of the fishing trip, the mother had prepared food, snacks, and drinks for the trip. She had also offered to help care of H.P. while the father arranged to get the boat on the truck. Shortly after they left, there were engine problems with the boat. The father also realized that the food and drinks had not made it onto the boat, but was able to get some from another family member. Things then became further complicated because H.P. had to go to the bathroom and did not feel safe doing so off the boat. The father went to three locations to try and find a bathroom, but all options were refused by the child. At this point, the father was frustrated and called the mother to see if she could come and get H.P. The father felt that this was an important annual event for his friends, and he did not want to abandon the day with them.

[34] The mother agreed to come. According to the father’s testimony, he was walking hand in hand with H.P. towards the meeting point when the mother arrived with her own father, who was driving. The vehicle came to a screeching stop. The father went on his knees to explain to H.P. that it was okay to abandon the fishing trip. According to the father, the mother yanked H.P. by the arm, scooped him up, and said words to the effect of “I am sick of you doing stuff like this” and left with the child. The father was in shock. He called her immediately and asked that she call him back. He recalls telling his friend “I feel that I am getting separated and that she just took my son.” He continued to fish, but a little later, he told his friend he felt that something was not right and decided to go home.

[35] When the father arrived at home, the paternal grandfather asked him what he was doing back. He said he could not fish and that something did not feel right. The paternal grandfather replied that he should speak to the mother. The mother informed him that she was going to her mother’s place with H.P. for a sleepover. She had also left a note in the house that she would be back the next day. However, when the father entered the house and saw the blankets gone, he put one and one together and called her.

[36] The facts surrounding the father’s subsequent telephone conversation to the mother and the sequence of the events that followed are unclear. According to the father, he called the mother asked what the plan was and the mother said there was no plan; she was not coming home. She also told the father that he was “not allowed to come here”, referring to her parents’ home. The father then proceeded to drive to the maternal grandparents’ place in Arnprior, where he was greeted by three police officers who told him to get out of his car and arrested him. The mother did not tell him at any point in time that she had called the police or made criminal allegations against him.

[37] The police initially told the father that he was being taken to hospital because there was concern that he was suicidal. Ms. Hamlyn testified that she was also informed of the same by the police. When the father explained to the police that he was not suicidal, they took him to jail instead. He was held in cells overnight. He was later released on bail to reside with his sister in Ottawa and placed on a recognizance to not attend the MH except to retrieve belongings. He did not see his son H.P. for the next 20 days.

[38] The mother testified to a different version of events. She states that the father went fishing with H.P. and two of his friends. She later received a call because H.P. was not comfortable going to the bathroom off the boat. When she went to pick up H.P., she observed him crying and upset. She stated that the father just handed H.P. over and no words were exchanged. She picked H.P. up, put him in the truck and told him they could go to the grandmother’s home for a sleep over. While she was packing, the father came home and started screaming and yelling. She finished packing and went to her mother’s place for the night. She testified that she just wanted to leave and get out of there. She called the police because she was scared, afraid of going back to the home, and was looking for advice from the police on how to leave. The police sent someone over to speak to her. She told the police she was scared of the father and had been thinking about leaving but was unsure how to do so without assistance. The police told her that the father could be charged based on what she reported.

[39] The father was charged with the following criminal offences:

➢ choking the mother between June 1 and August 31, 2015;

➢ uttering a threat to cause death to the mother between September 1 and October 31, 2015;

➢ mischief to property between September 1 and October 31, 2015 involving damage to the mother’s pick-up truck;

➢ mischief to property between December 18 and 25, 2013 involving damage to a deck at the MH; and

➢ mischief to property on December 25, 2015, involving damage to the bedroom door at the MH.

[40] The matter went to trial on March 21, 2017. The accused was acquitted of all charges.

C. Circumstances after separation

[41] In April 2018, about 19 months after the separation, the mother moved back to the MH with her new partner. She reports that her partner and H.P. get along well and do a lot of activities together. Her partner did not testify in these proceedings. The mother is presently on leave due to a surgery that she had in March 2020, but hopes to return to work in 2021.

[42] The parties entered into an interim agreement on February 2, 2017, which does not mention custody, but sets out the father’s parenting time with H.P., including every second weekend from Friday at 5 p.m. until Sunday at 4:00 p.m. This is extended to start on Thursday if Friday is a PD day. The agreement also provides for additional contact at Easter and three days at March break. The father has been provided with additional contact at Christmas, during the summer, and on special occasions. When COVID-19 emerged and school became virtual, the parties agreed that the father’s contact would commence on Thursdays.

[43] Despite the marital conflict, H.P. is developing normally and has no health or social problems. H.P. attends a Catholic school that has core French. Learning French was important to the father and something he insisted on. H.P. is a good student and likes art, math, and social studies. His most recent school report from November 2020 indicates he is progressing well or very well in all subjects, has good learning and work skills, and is kind and collaborative. H.P. has a best friend in the community that he has known since junior kindergarten. His school is ten minutes from the MH.

[44] The father also has a new spouse, Stephanie Wagar. They met in the spring of 2017 and now have a child who recently turned three. The couple are well settled in Barrhaven. The father is not working and is on a disability benefit.

[45] The father’s new spouse, Ms. Wagar, testified at these proceedings and provided detailed testimony about her home life and relationship with the father, their daughter, and H.P. Ms. Wagar has a background in psychology and works at Carleton University as an academic advisor to students. She has been working virtually since COVID-19 emerged. Her work requires her to be closer to Ottawa. Nonetheless, she and the father have spoken about the possibility of living closer to Renfrew if necessary. Ms. Wagar is very engaged in the care of H.P. She usually picks him up for his parenting time with the father. She reports that H.P. gets along well with his half-sister. She described H.P. as a happy boy and indicated that he has a very close relationship with his father. Ms. Wagar gets along well with the mother. Despite the fact that she would be very familiar with the parties’ conflict, she did not remark negatively at all about the mother. I found her to be a very credible witness.

ISSUES

The issues in this case are as follows:

1. What parenting plan is in the best interests of H.P? This includes consideration of decision-making, primary residence, and parenting time for each party.

2. How should property owned by the parties, including the MH, be divided?

3. Should there be a divorce and child support order?

Analysis

ISSUE 1: What is the appropriate parenting plan for H.P.?

A. Position of the mother

[46] The mother seeks sole decision-making of H.P. She requests that H.P. live primarily with her in the MH and that the father have parenting time at the court’s discretion.

[47] The mother takes the position that it is in H.P.’s best interest that the status quo prevail. Renfrew is where he has lived all his life, where he goes to school, and where he has a community of friends and family. His maternal grandparents are a short distance away and often care for him. It would not be in his best interest to uproot him to live with his father in Ottawa 50% of the time and have him commute back and forth to school, which is a one-hour drive.

[48] Furthermore, it would be difficult for the mother to relocate to Barrhaven to accommodate a 50/50 parenting schedule. The mother has a stable job as a postal office worker. She is in a new and supportive relationship. She currently lives in the MH with her new spouse. This is an affordable home. It was a home that previously belonged to her mother and aunt. The mother also has the support of her parents who are in the neighboring town of Arnprior.

[49] While the mother does have some concerns with the father’s parenting, she believes that his role is critical in the child’s life.

B. Position of the father

[50] The father seeks joint decision-making and for the parents to each have equal parenting time with H.P. He would like to have the child’s primary residence with him in Ottawa and for the child to attend a Catholic school there. This would effectively mean that H.P. would reside part-time in Barrhaven, where the father is presently situated with his new spouse and H.P.’s half-sister, and part-time in Renfrew with his mother. It would also mean that on the weeks that H.P. is with his mother, he would have a two-hour commute to and from a new school in Barrhaven.

C. Position of OCL

[51] The OCL conducted a clinical investigation and issued a report on July 24, 2017. The OCL investigator interviewed the parents and child and observed them in their respective homes. The investigator also had collateral contacts with the father’s new spouse, Ms. Wagar, the maternal grandparents, the maternal uncle, the family physician, the mother’s counsellor, the school, and the father’s psychiatrist, Dr. Rae. The OCL also examined reports from the OPP, the Arnprior and District Memorial Hospital, and Family and Children’s Services of Renfrew County.

[52] With respect to the father, the OCL investigator’s overall impression was that H.P. was excited about the activities with his father, much of which were outdoors in the yard. The father offered the child a lot of attention and affection. The child also engaged with Ms. Wagar who spoke gently to the child.

[53] The OCL investigator’s overall impression of the mother was that H.P. was well cared for by her and comfortable with her. The child initiated conversation and physical contact with the mother and appeared relaxed with her. The mother was in tune with the child’s needs.

[54] The OCL investigator also found the child, who was five years of age at the time, to be a quiet, inquisitive child, who loved the attention of the adults around him. H.P. appeared to be meeting his milestones. He was observed to be a little shy, but forthcoming about things that interested him. He loved going to Monster Trucks with his father, but equally enjoyed crafts with his mother. He enjoyed both parents reading to him at night before bed.

[55] Based on the information reviewed by the OCL investigator, the OCL recommended that the mother have sole decision-making and primary residence of H.P. These two recommendations were based on the fact that (1) the parties were unable to communicate and so joint decision-making would not work, and (2), the child was well settled at his school in Renfrew and relocating him to Ottawa to live part-time with the father would constitute a significant disruption in his life.

[56] The OCL did not approve of the father’s plan to have H.P. reside with him in Ottawa with the expectation that the child would adjust to those new circumstances. The OCL questioned whether such a plan was in the best interests of the child given that in 2017, there were numerous changes taking place in the father’s life, including a new relationship and the expectation of a baby. The OCL investigator also pointed out that the father’s relationship with the new spouse had been underway for only three months and H.P. had not yet had an opportunity to bond with her.

[57] I find there are shortfalls of the OCL Report. First, the report refers to the comments of the father’s psychiatrist, Dr. Rae, but this visit occurred seven years ago in 2014. Dr. Rae’s comments are presumptively admissible: George v Nguyen, 2017 ONCJ 161 at para 13. However, I find that, given the age of the comments, they are of limited assistance in understanding the current circumstances of the father. Second, the OCL investigator interviewed the mother’s parents and brother, but does not appeared to have interviewed the father’s family members, several of which testified in these proceedings and whose evidence I found to be credible and reliable. Third, the OCL Report makes reference to the mother’s serious allegations of domestic violence, but does not refer to the criminal trial transcripts which address these allegations in detail. Therefore, some of the information in the OCL Report is inconsistent with the evidence presented at this trial or the criminal trial.

[58] Finally, and perhaps most importantly, the OCL Report does not reflect the current circumstances of the parties. The OCL Report is now almost four years old. When it was prepared, the child was 5 years of age. It has not been updated to take into account the present needs and interests of the child who is now almost ten years of age. It also does not take into account the change in circumstances for both parents, including the mother’s return to the MH with a new spouse or the arrival of H.P.’s baby half-sister in the father’s home. For all these reasons, I attribute less weight to the findings and recommendations of the OCL Report in this particular case.

D. Legal framework for determining a parenting plan: Best interests of the child factors

[59] In deciding the parenting plan for H.P., which includes the issues of who will be responsible for making significant decisions about the child, where his primary residence will be, and how much time each parent will have with the child, I must consider only what is in the bests interests of H.P.: Children’s Law Reform Act, RSO 1990, c C.12, s 24, as amended SO 2020, c 25, Sched 2, s 6 (“CLRA”). These provisions endorse a child-centered approach in determining parenting orders: Young v Young, 1993 CanLII 34 (SCC), [1993] 4 SCR 3 at pp 62-63.

[60] The best interests of the child provisions have now been incorporated into the Divorce Act as a result of the recent amendments which went into effect on March 21, 2021: RSC 1985, c 3 (2nd Supp.), at s 16.

[61] The best interests of the child framework requires primarily consideration of H.P.’s physical, emotional and psychological safety, security and well-being: CLRA, ss 24(1) and (2). However, s. 24(3) also lists additional factors related to H.P.’s circumstances that must also be considered: CLRA, ss 24(3).

[62] Sections 24(1) and 24(2) of the CLRA state as follows:

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. 2020, c. 25, Sched. 1, s. 6.

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. 2020, c. 25, Sched. 1, s. 6.

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. 2020, c. 25, Sched. 1, s. 6.

E. Sections 24(3)(a) and (d) CLRA: history and stability of the child - Should the status quo be maintained?

[63] Two of the best interest factors for consideration are the child’s history of care and the need to maintain ongoing stability of care: CLRA, ss 24(3)(d) and (a). For this reason, the status quo can be of relevance in assessing future parenting plans.

[64] The mother argues that it is in the best interests of H.P. that the status quo prevail with respect to the parenting plan for H.P. It has taken four years for this matter to get to trial and in the interim, she has had primary residence of the child and has made all major decisions for H.P. with respect to school attendance and medical issues. H.P. has been thriving at school. He also has a very good relationship with his father. H.P. is doing well and continuing the status quo is in his best interests. In short, the mother takes the position that “if it ain’t broke, why fix it”. The mother also asks that I consider that the father never brought a motion to change the parenting plan.

[65] The father argues that the status quo should not prevail when a wrong has been done. Counsel for the father relies on the decision of Izyuk v Bilousov, 2011 ONSC 6451. In that case, the trial judge found that the mother had lied to create a lop-sided status quo and that those lies, her exclusionary attitude towards the father, and her questionable judgment in certain areas such as the child’s medical care caused the trial judge to question whether the status quo created by the mother should be continued: Izyuk at paras 537 to 539.

[66] In this case, the father alleges the mother made false accusations against him for the purpose of alienating his son from him and minimizing his parental rights. The father has had to defend himself against serious criminal allegations, contend with being separated from his son for twenty days, and has had considerably less parenting time with his child over the past four years. Additionally, the father was forced to leave the MH even though it was vacant, had two dogs taken from him, and lost a large number of personal belongings, some of which had sentimental value, such as his grandmother’s spoon. The father takes the position that if a status quo was created with respect to the current parenting arrangement and primary residence for H.P., it was done as a result of the mother’s unacceptable conduct in creating it.

[67] The father takes the position that while he did agree to the current parenting arrangement, it was only intended to be a short term agreement. He never intended for the current arrangement to be in place for so long, but was forced to await the outcome of his criminal trial, the recommendations of the OCL Report, and the delays of court proceedings caused by COVID-19. Counsel for the father argues that these delays do not constitute an acquiescence of status quo and should not be held against him.

[68] The father seeks to have joint decision-making responsibility for H.P. and for both parents to have equal parenting time with H.P. The father also proposes the child relocate with him and go to school nearby in Barrhaven.

[69] H.P. has lived all his life in Renfrew. H.P.’s home, school, friends, extracurricular activities, maternal family, and community network are all in Renfrew. I find that, irrespective of the mother’s conduct, which is addressed further in the section related to family violence and her contribution to creating the status quo, uprooting H.P. from the community where he has lived all his life and is presently thriving would be a significant disruption in his life and not in his best interests. In this regard, I agree with the recommendation of the OCL report. I find that it is in H.P.’s best interest that his primary residence continue to be in Renfrew.

[70] Having said this, I am not persuaded that the status quo should prevail with respect to the other aspects of H.P.’s parenting plan, such as decision-making responsibility or parenting time. While there has been a status quo that developed since 2016, I find that the status quo was created as a result of the mother’s conduct and did result in unnecessary alienation of the father. In making this finding, I am not referring to the decision to contact the police, which the mother was certainly entitled to do, but more specifically to the mother’s conduct towards the father following the separation with respect to residency and parenting time.

[71] On September 24, 2016, the mother called the police and made serious criminal allegations against the father, of which he was subsequently acquitted. It was the mother’s right to call the police if she feared for her safety and report her concerns. However, the mother’s conduct resulted in a chain of events that made it very difficult, if nearly impossible, for the father to establish himself in a parenting situation that allowed for equal contact time with H.P. or to be engaged in H.P.’s life to the same extent as the mother. Her approach to matters following the separation contributed to the current status quo.

[72] There are several aspects of the mother’s conduct on September 24, 2016, and following the separation, that I find troubling. They suggest that the mother’s conduct was motivated by her own self-interest in creating a status quo that would keep the child primarily with her.

[73] First, Natasha Hamlyn states in her Affidavit that on the day of the father’s arrest, the mother phoned her to tell her that the father was at home, suicidal, and had a shotgun in his hand. The sister questioned why the mother had called her and not the authorities if this was true and if the father needed help. Concerned about the situation, Ms. Hamlyn immediately called the father, who she found was not distressed. According to her, the father told her he did not understand what his sister was talking about, that he was not suicidal, and mentioned the note the mother had left regarding going for a sleepover. The father did add, however, that the day went poorly and that he thought his marriage may be over because the mother had packed up the son, the dogs, and their belongings. The sister reiterated the conversation in cross-examination, and I accept her evidence.

[74] What I find troubling is that at no point during her own testimony did the mother ever make reference to the father having a shotgun or being suicidal on September 24, 2016. The maternal grandfather was at the house when the father returned from fishing and would have been present when the mother called the police. He was not called to testify about any such suicidal threat or the father having a shotgun on that day. If the conversation did occur, and I accept that it did, the mother has provided no explanation as to why she would have made such a serious remark to the father’s sister, particularly knowing the father’s family history. It undermines her credibility about the events of the day.

[75] Second, Kevin Hamlyn testified that after the father was released from jail and placed in the care of his sister, the father was devastated. As a result, Mr. Hamlyn called the mother to see if they could set up some kind of visit with H.P. Kevin Hamlyn states that during the phone call, the mother told him “she had Robert arrested to teach him a lesson”. Ms. Hamlyn, the father’s sister, also states that they pleaded with the mother to quickly provide the father with access to H.P. and the mother replied that “she had to make the point and teach him a lesson”. Whether the Hamlyns are referring to the same conversation with the mother is unclear. However, I accept their evidence about these discussions with the mother.

[76] The mother was not cross-examined on whether she ever made the statement attributed to her and, if so, why she would say such a thing that suggests a punitive motive. For this reason, I must assign it limited weight. Nonetheless, the mother’s credibility is undermined by the highly disturbing statement that indicates that she had the father arrested to teach him a lesson. It suggests that her intentions were motivated by her own self-interest to harm the father by alienating him from the child and undermining his relationship with the child.

[77] Third, I find the mother showed little regard for the father’s relationship with the child post-separation. The mother takes the position that she encouraged the father’s continued relationship with H.P. after the separation, but I find the evidence suggests the contrary. Following the father’s arrest, he did not see his son for nearly 20 days. This is difficult to understand given that no allegations were made that the father was violent with H.P. Furthermore, the mother had a healthy and long-standing relationship with the father’s family, and, in the course of those few weeks after the arrest, she could easily have arranged for H.P. to see his father at her sister-in-law’s place or some other form of supervised access. Ms. Hamlyn attested that they pled for the mother to let the father access H.P. and the dogs to help him through the situation he was facing, but the mother refused. Eventually, after 19 days, the father was granted one hour with H.P. The father received another two hours for H.P.’s birthday in October of that year. I accept the father’s evidence, which was corroborated by his sister, that those first 20 days following his arrest and without his son, were devastating for him.

[78] Fourth, I find it difficult to understand why the mother would not allow the father to return to live in the MH in Renfrew during the 19-month period when it was vacant and while she was living with her parents in neighboring Arnprior. As already noted, there were no allegations of violence towards the child preventing him from cohabiting with his father at the MH. The mother’s departure from the home on September 24, 2016, and her subsequent call to the police were certainly not precipitated by any immediate risk of danger to her because nothing transpired between the parties on that day that suggested any risk of harm. All the allegations brought by the mother related to events in 2015 or earlier. The mother’s decision to leave the marriage on that day was a result of her frustration over the father calling unexpectedly to have her pick up H.P.

[79] If the mother had simply allowed the father to return to the MH, it would have permitted the father to live and have parenting time with H.P. for considerably longer periods than alternative weekends. Furthermore, it would have allowed the father to continue to take H.P. to school, which was just ten minutes away, and to stay engaged with H.P. in his regular activities within the community. This gesture alone on the part of the mother would have resulted in a much different status quo, and one that might have more closely approximated the 50/50 parenting schedule the father is presently seeking.

[80] It was suggested that the father could have moved back to Renfrew and found a home nearby and that it was his choice to live away from Renfrew and his son. I do not accept this argument. Given the parents’ very limited financial means, the father was left with little choice but to move to Ottawa and live with his sister and her four children in extremely tight quarters and at a significant distance from H.P. The father, like the mother, could not afford to rent another place nearby. The MH, on the other hand, was a vacant and affordable option, but it was not offered by the mother, despite it being vacant for almost 19 months. In the father’s letter to the mother’s counsel dated October 2, 2016, written just a week after the separation, the father clearly states he would return to live with the MH with his child if he could:

It's my understanding i [sic] can't live there because at this point my family does and if this is not the case than that's too bad. I would gladly stay home and take care of my son and the house during this time but it was Amanda who has made that impossible.

[81] The mother’s refusal to have the father reside in the MH may have been because she perceived this was her home, given it had once belonged to her family, and not the matrimonial home, which the father was equally entitled to share. I note that in the OCL Report, the mother told the investigator that it was her intention to return to Renfrew to live in a house that she hopes to “inherit” there. I take this to mean the MH, because the only property in Renfrew that has been referred to in these legal proceedings is the MH, and it was there that the mother eventually returned with her new partner. I find that, at the time of the separation, the mother’s conduct was not motivated by the best interests of the child, which would have required her to facilitate the father staying in the vacant MH and having a continued relationship with him at the same level of involvement as the mother. In fact, the mother was motivated by her own interests.

[82] Fifth, I accept the father’s evidence that there had been prior discussions between the couple about the possibility of a separation and various options for how they might deal with H.P.’s residency and care after separation. Even the father’s sister states in her Affidavit that, in the year prior to the separation, the mother had been calling her regularly indicating she was unhappy.

[83] The father testified, and I accept his evidence, that prior to the separation he had suggested to the mother that she live with her parents and he would stay in the MH and they would work out a shared arrangement for the care of H.P. The father even refers to a conversation about separation that occurred with the mother and in the presence of the maternal grandmother. The father also testified that the couple had signed up for marriage counselling, but the mother only attended two sessions while he continued with the rest. The father testified to the marriage counselling at his criminal trial, and so this subject would not have been a surprise to the mother at this trial. The father was not challenged on this during cross-examination. No evidence was presented to suggest that the separation discussions or the counselling did not occur. If these statements were untrue, they could have been easily challenged or verified through viva voce or documentary evidence.

[84] I find it difficult to accept that, given the length of time during which both parties acknowledged the relationship was deteriorating and devoid of emotional intimacy, effectively a five-year period between 2011 and 2016, the parties would not have had some discussion about separation and a parenting plan for H.P. And yet the mother made no reference in her testimony to the marriage counselling or discussions between them about a possible separation prior to the events of September 2016. I find this evidence is significant because it undermines the mother’s testimony that she called the police because she was looking to leave the relationship and was seeking advice on how to do so. I accept the father’s evidence that the parties had been engaged in discussions about separation prior to the events of September 2016, but the mother was averse to an amicable separation, with the father remaining in the MH and having the same or comparable parenting time with the child upon separation.

[85] Sixth, I find that there were several instances following the separation where the mother undermined the father’s parenting time and the paternal family’s contact with H.P. One example was the salmon fishing trip in July 2017. The father testified that the paternal family, including nieces and nephews, go on a yearly fishing trip. That year, the father had arranged to pick up H.P. on a Thursday night. The fishing trip was scheduled to leave from a port in St. Catherine’s, Ontario on Saturday. However, on Friday evening, the captain of the boat charter stated that it was unsafe to go on Saturday and the trip would be postponed to Sunday morning. The father called the mother, but she did not answer his calls. Eventually, he was able to reach the maternal grandmother and told her that the fishing trip, which involved three adults, H.P. and eleven other children, would be pushed back to Sunday and that he would be delayed in his return of the child by 2-3 hours. The father testified he could hear the mother in the background during this conversation, but that she refused to speak to him. The father ensured that he texted the mother at every opportunity, including when he got to shore and when he got to town. He ended up keeping the child for an extra 1 ½ hours. The father testified that the mother also took away his next planned visit.

[86] This was an important family trip for H.P. with all his cousins. The mother’s refusal to even speak to the father, leaving him stressed about whether an extension was being accommodated, and then penalizing him the following week demonstrates, as the father suggests, that the mother is not always capable of setting aside her own difficulties and anger with the father to ensure H.P.’s best interests are met. In this instance, the child’s best interest included meaningful and enjoyable time with the father and paternal family.

[87] I would also add that, even before the parents’ separation, several family members witnessed the mother interfering with the child’s contact time with the paternal family. For example, Kevin Hamlyn describes in his Affidavit an incident at the family hunting camp where H.P. was crying and screaming because his mother would not let him participate even though the father, aunt, brother-in-law, and cousins were all present to supervise him. Kevin Hamlyn describes another instance when H.P. was four where, shortly after arriving at the camp, the mother took H.P. home even though he wanted to stay with the family group. Kevin Hamlyn also stated that when he and his wife would go to visit H.P. in Renfrew, which they tried to do every other weekend, the mother would often put H.P. to bed for a nap, leaving the family with little contact time with their nephew. This description of the family visits to Renfrew were also corroborated by the father’s sister.

[88] Finally, I found that the mother showed a disregard for the father’s feelings post-separation in several other respects. The mother had taken the two dogs when she went to her parents’ home on September 24, 2016. These were pets that both parties shared, and it was clear that the father was attached to both dogs. The mother euthanized one of the dogs without informing the father that she was doing so or providing him with an opportunity to say goodbye to the dog. When asked about this in cross-examination, her only response was that the dog was sick. There was no regret, apology, remorse, or even insight into her own lack of consideration for the father’s feelings.

[89] The mother showed a similar disregard for the father’s feelings when questioned about the whereabouts of a family spoon that the father had inherited. The father testified that he had been given a spoon by his grandmother which he cherished. He explained that he had eaten breakfast with this spoon every morning since he was 13 years of age, a rather unique feature in anyone’s life. Following the separation, he requested permission to return to the MH to retrieve his belongings. The thing he wanted most was this spoon, which he looked for everywhere and could not find. This item was clearly important to the father. In the father’s Answer of October 29, 2020, he specifically refers to the loss of the spoon from his grandmother in the course of the separation.

[90] When the mother was cross-examined about whether the father had a favorite spoon that he ate with every day, she replied she could not remember. When asked if she recalled the father having a special spoon from his grandmother, she stated she could not remember. When asked about whether she removed utensils from the house, she said yes. When asked why, she said some of them were hers. When counsel confirmed she didn’t have a spoon from the father’s grandmother, the mother confirmed that was correct.

[91] Given that the mother had been in a relationship with the father for 18 years, I find she would most certainly have known about the spoon, and if it was a complete fabrication on the part of the father, she would surely have pointed it out. Yet during cross-examination, the mother failed to even acknowledge the existence of such a spoon or whether he might have received such an item from his grandmother. Moreover, the mother expressed no empathy for the father’s loss of the spoon or any explanation of how it might have gone missing given she was the one who had access to the MH upon the father’s arrest.

[92] While stability and history of care are relevant factors for consideration under ss. 24(3)(a) and (d) of the CLRA, I do not find that these factors justify maintaining a status quo that was created by a sequence of events over which the father had little control. For this reason, I find that the mere fact that the mother has had de facto decision-making responsibility over H.P. since 2016 does not mean that she should continue to do so going forward.

[93] On the other hand, I also agree with Counsel for the mother that the court cannot award decision-making to one parent to punish the other parent even where they have engaged in alienation or breached a court order: DD v HD, 2015 ONCA 409, at para 87. Ultimately, the best interests of the child must prevail. Consideration must be given to all the factors enumerated under s. 24(3) of the CLRA to determine what parenting plan is in H.P.’s best interests.

G. Sections 24(3)(j) and 24(4) and (5): Consideration of family violence

[94] In this case, both parents allege physical conflict in the last five years of their marriage. However, they provide considerably different accounts of the nature and cause of these incidents of domestic violence. The mother alleges that the father has trouble controlling his temper, would yell, and was physically abusive towards her. She alleges he choked her, uttered threats, and intentionally damaged their property, for which the father was criminally charged. While the father was acquitted of the criminal charges in 2017, the mother relies on the physical abuse in her Amended Application, dated October 29, 2020, for her claim for sole decision-making responsibility and residency of H.P. with her.

[95] The father also alleges violence on the part of the mother.

[96] As per ss. 24(3)(j), 24(4) and (5) of the CLRA, I must consider the presence of family violence. However, I am only required to consider the past conduct of either the mother or father if it is relevant to the exercise of the person’s decision-making responsibility, parenting time, or contact with the child: CLRA, s 24(5), as amended SO 2020, c 25, Sched 2, s 6.

[97] Section 24(3)(j) of the CLRA states:

Factors

(3) Factors related to the circumstances of a child include…

(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

[98] Sections 24(4) and (5) of the CLRA state as follows:

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. 2020, c. 25, Sched. 1, s. 6.

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. 2020, c. 25, Sched. 1, s. 6.

[99] Family violence is not limited to conduct that is criminal or to physical abuse. In recent amendments to the Divorce Act, family violence was defined as:

any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct…

[100] The definition goes on to list various forms of violence such as physical abuse, sexual abuse, threats to kill or cause bodily harm to any person; harassment, including stalking; failure to provide the necessaries of life; psychological abuse; financial abuse; threats to kill or harm an animal or damage property; and the killing or harming of an animal or the damaging of property: Divorce Act, s 2.

1. Mother’s allegations of the father’s violence

[101] The mother testified that the father had a temper, that he threatened her, that he damaged property in the home, and, on one occasion, that he choked her.

[102] Before addressing each of those allegations, it is important to note that the mother provided a very limited account of each of these incidents at this trial. There was little reference to when the events occurred and few details of what exactly happened, or the circumstances that triggered the events. Furthermore, the mother filed only a portion of her transcript from the criminal trial where she would have been examined and cross-examined on each incident, making it difficult to find, even on a balance of probabilities, that the incidents she alleged occurred as she described.

[103] In contrast, the father provided very detailed testimony with respect to each incident including what occurred, where, and why. The father also filed a complete copy of his criminal trial testimony where he was examined and rigorously cross-examined on each incident. In addition, in the father’s Affidavit dated January 4, 2017, the father also describes the incidents in detail. Save for a few minor discrepancies, the father’s accounts of these incidents are consistent. The level of detail provided by the father of these accounts afforded considerable credence to his testimony. Furthermore, the father did not exaggerate the evidence and acknowledged in many instances his own shortcomings and behavior that contributed to the marital conflict. For these reasons, I found the father’s evidence to be credible and reliable. Where there was a discrepancy in the parties’ evidence in relation to an incident, I preferred the father’s version of events.

(a) Choking

[104] The mother testified that in August or September 2015, a year before the separation, the father choked her. The incident arose because she told the father that that their son was pulling away from him because of his temper. The father denied the incident and said to her “if you want something to be scared of, I will show you”. The father turned bright red, put his hands under her throat, walked her to the back of the son’s room, and forcibly leaned her against the bed. In cross-examination, the mother was asked how a hand around the throat lifted her up, and she made a gesture with her hands around her throat and being raised onto her tip toes. When it was suggested that the father put his hands on her shoulder rather than her throat, she testified that she stood by her version of events.

[105] The father denies ever choking the mother. He acknowledged there was an incident when he put his hands on the mother’s shoulders and directed her onto the bed, but it was because she had punched him hard and he did not want her to do it again. The father testified that the incident occurred when he and the mother were doing the final touches on the decorations of the son’s room that he had renovated. There was some discrepancy with respect to the exact date of the incident. The father testified at this trial the incident occurred in November or December of 2015, but at his criminal trial he testified it occurred in January 2015. However, I find little turns on this discrepancy given the father was able to provide considerable detail about the incident and was consistent in his account of events.

[106] The father described in detail the nature of the renovations to the child’s bedroom, such as taking out drywall, reinsulating, changing the flooring to carpet, and painting the room. H.P. was very into the minion character at the time, and the parents had decided to decorate H.P.’s room with a minion theme. The father testified that the incident occurred on a Friday afternoon after the renovations were completed and the parents were decorating H.P.’s room with posters, photos, and laminated puzzles of the minion character. According to the father, sometime towards the end of the day while decorating, the father took the opportunity to brush the mother’s hair aside and give her a kiss. The mother responded by turning around and punching the father in the solar plexus. The father had the wind knocked out of him and fell to his knees. The mother said words to the effect of “don’t want you to touch me”. The father testified that he thought that perhaps because they had spent the whole day together, things would be different. The mother went for a second swing but the father wasn’t having it. At this juncture, he reached out and put his hands on her shoulders and put her on the bed. He told her “we are not having an argument; we are not doing this”. He said this because he knew H.P. was coming home on the bus from school soon. The father testified he did not hurt her nor did he even think to hurt her. He just did not want to be hit again. He testified that the mother has hit him without worry of recourse for 18 years.

[107] I do not accept that the father choked the mother as she described. The mother was unable to provide any significant detail about the circumstances surrounding the incident, the nature of the previous fight that triggered it, what precisely was said, how long the incident lasted, or what transpired following the events. The father on the other hand, provided considerable detail about the events of the afternoon, including the timing, the precise location, what the parents were doing at the time, and what provoked the conduct, which was the mother punching him and him restraining her by placing her on the bed. The father was not cross-examined about his evidence in chief or on any potential inconsistencies with the evidence he provided at the criminal trial about the same incident. I accept the father’s evidence.

[108] I do not accept the choking occurred as described by the mother or that it is grounds for a parenting plan in the mother’s favor.

(b) Mischief to tailgate of truck

[109] The mother also testified that there had been an incident in August or September of 2015 where the father had a temper tantrum and banged the tailgate against the bumper of the truck. She told the police about the incident because she believed the force the father used had resulted in damage to the truck. She testified that she knows now that she was wrong about the damage because the father had taken pictures of the truck and there were cords on the truck that would have prevented him from damaging the truck as she has described. She testified that she made a mistake and feels horrible about it. It was not her intention to put anyone in jail, but that she had wanted to illustrate the father’s anger. This incident was the subject of a criminal charge and the father was acquitted of this count at trial.

[110] In cross-examination, the mother testified that the incident had started over an argument about whether H.P. should wear a scarf outside. During the argument, H.P. was freaking out. The father was yelling at him to “shut up” and then took the child into the house. When he came out, the father slammed the tailgate and then sped off. The mother testified that that this incident occurred in the presence of her father and brother, who were four car lengths away. However, neither her father nor her brother was called to testify at this trial or the criminal trial.

[111] The father was neither examined nor cross-examined about the truck tailgate incident at this trial. However, a copy of the transcript of his testimony from his criminal trial in relation to this incident was admitted. The father described the incident as follows. On the day in question, everybody was getting ready, including H.P., to go out and deliver apples they got from the mother’s uncle’s apple orchard. H.P. loves to ride on the four-wheeler. The child was packed up and ready to go when his mother called him in to put on a scarf. According to the father, it was 14 degrees Celsius outside and H.P. was already begging to take off his jacket. H.P. came out with a scarf and toque and mitts. The father thought the mother was going overboard and the couple got into an argument about the situation. At some point, the father was dealing with the truck because the tailgate would not close. He slammed it four times. He testified it was not out of anger or frustration, but because it just wouldn’t close. The father assumed it was rusted. The tailgate weighs 85 pounds and has two hinges on the bottom and two steel roads that prevent it from coming all the way down and hitting the truck. He testified that he and the maternal grandfather eventually fixed it by spraying it with WD-40. The maternal grandfather was not called to testify at this proceeding or at the criminal trial to challenge the father’s account.

[112] The father acknowledged the argument over the child’s clothing. According to him, the mother was making the son feel bad for having to wear extra clothes that he didn’t want to wear. The father said he told his son that he would go deal with the apples and then when he returned, he would take him out on the four-wheeler, which is what they ended up doing. The father testified at the criminal trial that he never damaged the tailgate in his attempt to close it.

[113] Photos were taken of the truck and filed at trial. They showed the cables which hold the tailgate and prevent it from hitting the bumper. The mother acknowledged on the stand that she realizes now that the father could not have engaged in the conduct she described with the tailgate hitting the bumper or damage the truck as she had alleged. The mother believed, nonetheless, that the father had been acting in a violent manner.

[114] Upon consideration of the mother’s testimony, the absence of any corroborative evidence from the grandfather and brother who were present and could have testified, the father’s own detailed account of what transpired, and the photographs of the truck showing the cables holding up the tailgate, I do not accept the mother’s version of events. I do not accept that the son was freaking out, that the father told his son to shut up, or that he intentionally slammed the tailgate out of anger as the mother alleged. I do not find this incident constitutes family violence on the part of the father.

(c) Mischief to the deck

[115] The mother’s transcript from the criminal trial with respect to the father’s intentional damage to the deck was filed as an exhibit at this trial. It was the only portion of her evidence from the criminal trial that was filed.

[116] In the criminal trial transcript, the mother stated that she was cleaning glass. It was unclear from the transcript where she was, given only a portion of the transcript was filed. The mother testified she saw the father holding onto the railing and kicking a cooler while standing along the side of the deck. He then went and grabbed a snow shovel and she heard wooden pieces flying. She said there were chunks of the railing, in particular, railing slats that were busted. The father then returned inside, took a sleeping pill, and went to bed. The mother acknowledged the deck is part of the MH and is located on the back of the house.

[117] In cross-examination at this trial, the mother testified that her own father was present when the railing of the deck was damaged. The mother could not recall if he was inside the house. However, the father was not called to testify in any proceedings.

[118] The father testified at the criminal trial and was cross-examined at length about the incident involving the deck. The father testified that he built the deck in question himself and that it was 24 x 30 feet. He put the decking boards a little too close so everything just freezes on top. For various safety reasons, the father always tried to keep the ice off the deck, because the maternal grandparents would come to the house and also because his son would use it as an off ramp for a toboggan run. On the day in question, he was in the process of smashing the ice with a shovel to chop it up and the shovel cracked. He then threw pieces of ice off the deck and some chunks went through the railing and broke two spindles. The father testified that there is no ice cooler that they use in the winter and he had no idea what this reference to a cooler made by the mother was about.

[119] I accept that the mother did see the father banging against the deck with a shovel, that she did see pieces of something flying off the deck, and that two slats, likely spindles from the railing, were broken. However, I accept the father’s version of events. It constitutes a reasonable explanation of what the mother may have witnessed. I find the father as a whole, and even with respect to this incident, provided a more detailed account of the events. While it may have been careless of the father to throw large pieces of ice in the manner that he did, I do not find based on the evidence presented that the father was intentionally damaging the very deck he built.

(d) Uttering threats

[120] The mother testified that when H.P. was a year old, she tried to leave. The father threatened her and said that he would kill anyone who got in the way of his son. If she provided further details about the nature of this threat at the criminal trial, it was not admitted as part of this trial.

[121] The father testified at the criminal trial that there was an incident when he had uttered these words, but it was after watching a movie about a pedophile who abused his two children. He did not provide the title of the movie, but described the movie as a situation where one parent thought the situation was water under the bridge and the kids would be okay and the pedophile could be forgiven whereas the other parent took the line that there was nowhere that the pedophile could go that s/he wouldn’t follow him. The father testified that it was when watching that movie that he said words to the effect of: if anyone like that ever took his son, there was nowhere they could go that he wouldn’t kill them. The father testified at his criminal trial that he never repeated the comment any other time and never uttered a threat to kill the mother.

[122] I accept the father’s version of events. The mother provided no details about the incident, what triggered it, or the context in which it arose. Furthermore, the mother suggests that she was trying to leave the father with the child when the child was a year old. However, the mother does not acknowledge at any point in her testimony that she previously attempted to leave the marriage, discussed separation with the father, or attended marriage counselling.

(e) Mischief to the bedroom door

[123] The mother also reported an incident to the police alleging that the father had damaged the bedroom door. The father was acquitted of this charge.

[124] The mother was not examined or cross-examined about this incident at this trial.

[125] Her testimony from the criminal trial regarding the door was not filed at this trial.

[126] The father denies he ever intentionally damaged the bedroom door. He provided a consistent account of what transpired at both this trial and the criminal trial. He describes the incident as follows. He and the mother had an argument. Things had started to fall apart between the couple and his attempts at physical affection continued to be rebuffed. It was starting to wear him down, and it was hard for him to accept that his son would say “Dad, you’re hurting her”, in reaction to seeing his father hug his mother and his mother’s response to it.

[127] On the day in question, which was sometime around Christmas, the father begged the mother if they could “for the love of God just fake it”. He wanted the mother to stop making his hugs a big deal and didn’t want to explain to his son how his dad was just giving the mother a hug. The father recalls that the mother got upset. She was dealing with presents on their dining room table. The mother stormed into the bedroom and slammed the door. The door cracked, which didn’t bother the father because they had been replacing the doors. He explained that at the time, they were in the process of replacing all the doors in the house. The father said to her “Look if you’re gonna break the door, you have to break it right, cause I need to replace it.” The father then ripped the door off the wall. He testified he did not do it out of anger. The next day he installed a brand-new door that matched the eight new doors in the house.

[128] Based on the father’s explanation, I do not place any weight on this incident as family violence that warrants a parenting order in the mother’s favour.

(f) Non-consensual sexual activity

[129] Both parents have admitted that, for a period of close to five years, their relationship was devoid of sexual intimacy. As already indicated, non-consensual sexual activity constitutes an assault and can be considered a form of domestic violence.

[130] During her cross-examination and reply, Ms. Proulx testified that she had been sexually assaulted by the father. When asked in reply what this involved, she testified that at night he would force himself on her and have sex with her. She acknowledged she did not mention it to the police because she was ashamed. No criminal charges were laid for sexual assault.

[131] The mother told the OCL investigator that Mr. Proulx was abusive to her, but there is no indication what the nature of the abuse was.

[132] The father testified that he never forced or coerced the mother to have sex against her will. He said there were two instances when he begged for sexual attention, and in response, she dropped her pants and said words to the effect of “go ahead do your thing”. The father proceeded to have sex with her on these occasions.

[133] The mother provided no details of when the sexual assault(s) occurred, the circumstances leading up to them, the nature of the sexual activity that took place, what was discussed before, during, or after, whether steps were taken by the father to ascertain consent, and what, if anything, she may have said in response. In the absence of any detailed evidence from the mother about the instances of unwanted sex and upon hearing the father’s version of the events, I do not find that sufficient evidence has been presented to establish that non-consensual sexual activity took place. I put no weight on these incidents.

(g) Manhandling the child

[134] The mother testified in cross-examination that she remembers an incident when the father forcefully brought H.P. down on one arm and he fell on her when he was tossed. She acknowledges she never made a report about it or about any allegation that the father had abused the child. She could not remember if she had ever alleged that H.P. was thrown in the air 6 to 8 feet.

[135] In the absence of any details about the context of this incident, I do not put any weight on it. The mother did not allege to the police or the OCL that the father was abusive with the child. Furthermore, as discussed further below, several of the father’s relatives have attested to and testified to the fact that they had never witnessed the father being physically aggressive with the child and, on the contrary, it was the mother who was often physically forceful with the child when he was resisting her.

(h) Other abuse alleged by the mother

[136] In the OCL Report, the mother is reported to have stated that Mr. Proulx was abusive, controlling, and tried to choke her. The OCL report also states that the mother acknowledged that she and the father had been involved in some pushing and shoving and that Mr. Proulx was not convicted of these alleged offences at trial.

[137] On the other hand, the mother testified at this trial that other than the incidents described of choking, threatening, and mischief to property, the father never hit, slapped, or punched her. Therefore, it is unclear what the mother is referring to in the OCL Report when she alleges pushing and shoving. I do not place any weight on the allegations made by the mother in the OCL report.

[138] I have also considered the father’s application for Canada Pension Plan dated February 22, 2014, where the father refers to having angry outbursts where he damaged his fridge, deck, car, and numerous items around his home, all the while not even understanding why this was happening. The father attributed these responses to his mental health issues and adjustment to his medications. While the letter does include an admission on the part of the father that he was at times violent to property, I find it to be of limited weight.

[139] First, the father testified that this letter was drafted largely by the mother. Second, the mother was not examined about the letter and her participation, if any, in it. Third, it is questionable whether the events were exaggerated to obtain the disability pension. Fourth, the letter refers to damage to a fridge, car, and numerous items, none of which were referred to in the mother’s allegations of the father’s mischief to property. Finally, while there is reference to mischief to a deck, no one was examined at trial if the reference to damage to a deck refers to the mother’s allegation of intentional damage to the deck.

(i) Summary of mother’s allegation of family violence

[140] In summary, I do not find on a balance of probabilities that the father choked, threatened, or engaged in non-consensual sexual activity with the mother. I do not accept that the father intentionally committed violence to his own property. I accept the father’s version of all these events as being more credible and reliable.

[141] I have also considered that family violence as presently defined under the Divorce Act is not limited to criminal conduct and can include conduct that is threatening, coercive or controlling, or that causes the other family member to fear for their own safety or for that of another person.

[142] In this case, I accept that the father engaged in yelling, was loud, and prone to emotional outbursts. The father admits as much in his own letter to counsel for the mother dated October 2, 2016. I also accept that the father sometimes responded erratically when he could not cope with stressful situations, such as leaving his own wedding or H.P.’s first Christmas at the grandparents. However, there is no evidence that the father’s yelling, loud voice, emotional outbursts, or erratic behaviour constituted a pattern of coercive and controlling behavior on his part or caused the mother to fear for her own or the child’s safety.

[143] The mother’s testimony was that the parties fought about a lot of issues in the final five years. The father went through a mental health crisis and was often withdrawn. The father initiated intimacy and the mother rejected it, sometimes engaging in her own violence towards him as discussed below. While the mother may have been frustrated, disappointed, and unhappy in the marriage, she never testified that she lived in fear of the father.

[144] Furthermore, Natasha Hamlyn states in her Affidavit that the mother called her in the year leading up to the separation and reported how unhappy she was in the marriage. The mother told her that Robert was not well and that he was threatening suicide. There was never any suggestion that the mother lived in fear of the father. At most, the mother comments suggested that she believed the father was fragile and possibly at risk of self-harm. This is distinct from her fearing him.

[145] Finally, Kalib Hamlyn lived with the couple for the entire summer of 2014 and did not observe any conduct to suggest the father engaged in coercive or controlling behavior or that the mother feared the father. On the contrary, as discussed below, it is the mother who is described as being controlling.

[146] For all these reasons, I do not find that the father’s conduct in this case constitutes family violence that warrants a parenting order in favour of the mother.

2. Father’s allegations of the mother’s violence towards him and with H.P.

[147] The father alleges that the mother was violent towards him during their relationship. He also alleges in his Answer that the mother had difficulty controlling her temper when dealing with H.P., exhibited a poor parenting style, and used physical force when disciplining him.

[148] The mother acknowledged in cross-examination that she did punch the father with a closed fist. She would do this after telling him many times not to touch her. When asked how many times, she stated she could not remember. With respect to H.P., the mother explained that her discipline was the “three strikes kind of deal”. If after three strikes, the child did not abide, then there were consequences such as not being able to see friends, no TV time, and no electronics. She acknowledged she spanked him once and she didn’t like doing it and she wouldn’t do it again.

[149] The father testified at his criminal trial that at the beginning of the relationship the mother’s hits were what he called love taps, but, as the mother fell out of love with him, her aggression towards him increased. She would hit him, bite him, and sometimes strike with objects. The hits would leave bruises and bite marks. She would sometimes hit his testicles if he got too close in bed. He would bring her a cup of tea, attempt to give her a hug, or put his arm around her, and she would hit him. His son saw this as his father hurting his mother. He testified that he showed his family and friends the injuries and that the maternal grandparents knew. The father was cross-examined extensively on this at his criminal trial and has maintained his position throughout.

[150] During this trial, the father reiterated the mother was violent with him. He testified that it was difficult to be 6’ 2” and have his wife hit him. She would kick, hit, or slap him whenever she didn’t get her way. It went from not being painful to where it did hurt, including a hit to the genitals.

[151] The father’s nephew and godson, Kalib Hamlyn, provided an Affidavit, the contents of which he adopted during trial. Kalib Hamlyn stated that when the father and mother moved to Renfrew in 2004, he started to spend more time with them on weekends and over the summers. He observed that their relationship before and after their marriage in June 2011 was very different. Before the marriage, the father would not get any “backlash from Amanda”, as he put it, for attempting to be affectionate by way of a hug or a kiss. After the wedding, it seemed almost impossible for the father to be affectionate with the mother.

[152] Kalib Hamlyn testified that he also lived with the parents in the summer of 2014. He had completed grade 11 and spent the summer in Renfrew helping with an addition to the house and working on the bush property. He stated that when the father would come home and greet his wife with a hug, she would respond by shoving him with considerable force and telling him off for it.

[153] He said there were countless arguments that came up that summer which all centered around H.P.’s involvement with the father and himself. For example, if they were working on the addition outside and asked H.P. to join, the mother would respond with things like “it wouldn’t be good for him”. The father would persist and try to bring him out, but the mother adamantly refused to budge in her reasoning or decision.

[154] Kalib Hamlyn also stated that there were some mornings when the father went out to start the day’s tasks before he was up and he would be left with Amanda and H.P. On these occasions, he would bear witness to Amanda speaking to H.P. about how “mean his daddy can be or how rude he is”. It was his view that these conversations had an impact on H.P. For example, if H.P. observed his dad go in for a hug with the mother, H.P. would interfere and say: “don’t hurt mommy”. He testified he observed this more in the latter part of the summer.

[155] Kalib Hamlyn states he never witnessed the father strike the mother no matter how she lashed out towards him. He was always civil. He observed the mother strike the father just for speaking. As soon as the father said something she didn’t want to hear, it was always action first and speech second.

[156] Kalib Hamlyn also claimed that outside of the summer he spent at the Renfrew house, he rarely got to see H.P. in his early years. His own family would make constant trips out almost every other weekend. When they arrived, their hopes to see H.P. would be dashed because the mother would want to put him down for a nap. As H.P. got older, the family was able to see him more, but he claimed the mother still kept H.P. “on a tight leash”. When H.P. would cry, she would keep him locked in his room until he was exhausted from wailing and crying. Any attempts by the father to intervene were met by telling him to go away and let her to handle it. In contrast, Kalib Hamlyn stated the father remained the same after H.P. was born. He was communicative and would always hear out his opinions and he saw this in “spades” when H.P. was with them.

[157] Kalib Hamlyn’s account of the paternal family’s visits to Renfrew when H.P. was young were also corroborated by his mother, Natasha Hamlyn. Ms. Hamlyn testified that once H.P. was born, they would try and go up to Renfrew to visit more often. However, no matter what plan had been previously been made for the visit, they would always walk into the mother putting the baby down. Even if the child got up, the mother would take time for a feed alone in her room and so, in a 4-hour visit, they would sometimes get 30 minutes with H.P. and her. The family would talk about how they missed out and would try to come earlier next time to get a visit before the nap, but the occurrence would repeat itself regardless of their arrival time.

[158] Ms. Hamlyn also described how hurtful the mother’s controlling nature was. As his biological aunt, she looked forward to having bonding time with the child, whether by feeding him or rocking him to sleep, but this was withheld from her or was given in small doses. In contrast, Ms. Hamlyn would hear stories about all that the maternal family did with H.P. She also described how controlling the mother was with the H.P. and how the amount of crying she heard from H.P. behind closed doors “made me sick”. She added that if the father tried to interfere, the mother would not allow him. The mother’s controlling behavior continued as the child grew up, particularly around food.

[159] Kevin Hamlyn also testified. He is the father’s brother-in-law. He has known the father since June 1988 when he first met the father’s sister, Natasha Hamlyn. He came to know the mother in or around 1998. Mr. Hamlyn and his wife would visit the family at least once a month when they moved to Renfrew in 2004, and then every other weekend after H.P. was born. He also joined the family at the two-week November hunting camps each year.

[160] Mr. Hamlyn adopted the contents of his Affidavit at trial. Mr. Hamlyn was fairly direct in his testimony. He acknowledged that he and the father had had their own verbal disagreements over the years, but it was never physical. Mr. Hamlyn had very clear views about the mother. He stated that not long after H.P. was born, he observed a drastic change in the mother’s attitude. She became very controlling about H.P. She wanted to spend the majority of her time with her own family in Arnprior and wanted very little to do with the father’s family in the Ottawa area. Mr. Hamlyn went on to state: “She also became very cold towards Robert, often dismissing displays of affection. Sometimes even hitting or pushing Robert when he was hugging or trying to kiss her.”

[161] Mr. Hamlyn described the mother as being rigid in her opinions and resistant to alternate ways of dealing with a situation. When there were disagreements, the mother imposed her will on everyone, regardless of how disruptive the decision might be. He stated that the mother would respond physically to coerce the child into obedience. The weekend visits would sometimes become unpleasant to watch, and he and his wife would try and leave before H.P.’s bedtime to avoid the scene. He states as follows at paras 15 and 16 of his Affidavit:

All of [H.P.’s] temper tantrums that I have witnessed stemmed from [H.P.] wanting to be part of the group with Daddy and his family and Amanda preventing this. Each time Amanda’s reasons seem unjustified. These tantrums seemed to always ended [sic] in [H.P.] being inconsolable and kicking and screaming. Amanda would then physically drag him back into the house by the arm, at times need to pick him up due to his non-compliance.

I have witnessed Amanda hold [H.P.] by both arms while speaking straight into his face about how Daddy was wrong and [H.P.] needs to stay with mommy and can’t leave mommy alone. Although I did not agree with this obvious manipulation, it was not really my place to interfere and I did not.

[162] Despite the fact that the Hamlyns are related to the father and, in this respect, one might be concerned about bias and collusion, I found their evidence to be credible and reliable. Each of them was frank and clear in their testimony. They gave their testimony in a straightforward manner and did not appear to exaggerate events. They gave independent accounts of their observations of the mother and their evidence did not come across as being tainted in any way. Furthermore, Kalib Hamlyn was with the family for an entire summer and would have been able to observe firsthand the family dynamics between the parties. His observations were made on occasions entirely independent of his parents and yet corroborated his own parents’ observations. The Hamlyns’ evidence was not seriously challenged.

[163] All the Hamlyns corroborate the father’s testimony that the mother was controlling. Ms. Hamlyn testified to the mother’s controlling conduct during family visits and at the various hunting camps. Both Kevin Hamlyn and his son Kalib described incidents where the mother would respond forcefully against the child’s will. Both of them also witnessed the mother speaking negatively about the father to the child on different occasions and independently of each other.

[164] Both Kevin and Kalib Hamlyn observed the mother’s physical responses towards the father each time he sought some affection, and in this respect, corroborate the father’s own testimony of the mother’s violence towards him when he initiated any form of intimacy.

[165] The Hamlyn relatives all testified that, in contrast, they have never seen the father display aggression towards the child and that the father’s parenting style is more communicative. This was also corroborated by the father’s new spouse, Ms. Wagar, who openly stated that even when she is frustrated with their toddler who won’t sit down to eat dinner, she turns to the father to deal with the situation. She states the father is very calming and patient. He will kneel down, get eye to eye with the child, and talk gently. This is the way the father builds trust with children and is able to discipline them. I note that Ms. Wagar’s description of the father is consistent with the way the father described the manner in which he had dealt with H.P. on September 24, 2016, when he got down to eye level with the child and explained to him that it was okay to leave the fishing trip.

[166] In summary, I accept the father’s evidence that the mother was physically violent with the father in the last five years of the relationship. The father testified to being repeatedly hit by the mother, and often very forcefully, in response to his attempts at affection. This was witnessed by at least two of the Hamlyn relatives. More importantly, her conduct was sometimes displayed in front of the child and, on occasion, caused the child to intervene.

[167] Having said this, I am not prepared to find that the mother’s violence towards the father is entirely determinative of the parenting plan to be awarded in this case. The mother’s hits were largely directed at rejecting or discouraging the father’s advances for affection and sexual intimacy. The father stubbornly persisted. It was unfortunate that both parties could not see the harm in this parental dynamic, to which the child had to bear witness. Witnessing conflict between adults, either verbal or physical, can have long-term negative effects.

[168] Fortunately, all the witnesses report that H.P. is a well-adjusted and happy child and attached to both parents. Whatever adult conflict H.P. did witness does not appear to have adversely affected him. Similarly, the mother’s controlling nature and sometimes forceful discipline of the child in the toddler years, as witnessed by the father and several family members, does not appear to harmed the child. The OCL Report, while now dated, indicates that the child is very comfortable with his mother and they have a good relationship. The child appears to be doing well in school academically and socially. The mother also testified that she recognizes that spanking the child does not work and there is no evidence that the child is at any risk of harm. Finally, based on the mother’s own testimony and corroborated by the OCL Report, I find the mother is devoted to her son’s well-being.

[169] For all these reasons, I do not find that the mother’s past conduct is relevant to her ability to parent H.P. and to warrant a parenting order entirely in the father’s favour. I find the mother’s past conduct with the father and son is not determinative of the child’s parenting plan going forward: CLRA, ss 24(4) and (5).

G. Sections 24(3)(a), (b) and (h) CLRA: Parent’s relationship with child and ability to care for and meet the needs of the child

[170] Section 24(3)(b) requires me to consider H.P.’s relationship with each parent, 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. Section 24(3)(a) requires consideration of the needs of the child while s. 24(3)(h) requires consideration of the ability and willingness of each parent to care for and meet those needs. I will address these three factors collectively.

[171] One of the most significant factors in decisions around parenting orders is the relationship that the child entertains with their parents, which encompasses such considerations as the strength of the emotional ties and the role of the person who has provided primary care in the life of the child: Young at p 66.

[172] The mother claims that she has been the primary caregiver since the child’s birth and that this is a factor warranting a parenting order in her favour. I find that the evidence in this case does not support this claim. I find that both parents were involved in H.P.’s care since his birth and that they are both fit to continue to parent him.

[173] There is ample evidence that the father was equally in involved in parenting H.P. prior to the parties’ separation. There were extensive periods in the first five years when the mother was working, and the father was the stay-at-home parent. The mother acknowledged that, between 2012 and 2014, when she was at work, the father would take care of H.P. She also testified that when H.P. started school in 2015, the father continued to care for him. Prior to separation, the father was equally involved in preparing lunches and meals, dressing H.P. and getting him to and from school. The father attests in his Answer that he taught H.P. to swim, ride a bike, hunt and fish. The father and son also participated in many outdoor activities.

[174] Having said that, I do accept that there were periods when the maternal grandmother had to assist such as in early 2012, when the father was adjusting to his medication and getting treatment for his mental health issues, when the father had issues with his sciatica, or during periods when the father was spending time helping his uncle with construction in Orleans, a suburb on the East end of Ottawa.

[175] I also find that, while there may have been times when the mother was doing perhaps more of the domestic duties, the father was nonetheless contributing to the household. The father was on disability for several years following his mental health breakdown in December 2011. During the five-year period preceding the separation, he spent a lot of time making improvements to the matrimonial home. Construction and home repairs were among the father’s strengths and his contributions in this manner benefited the entire household. This division of duties was not something that only developed after H.P. was born. The mother herself acknowledged that even before H.P. was born, she would do the inside chores and the father would do the outside chores.

[176] The father’s fitness to parent is also demonstrated post-separation. While it took him some time to adjust to living in the small quarters of his sister’s residence, it is clear that the father was able to care for H.P. during the weekend visits. There was no evidence that the father was unable to dress H.P., feed him, bathe him, and ensure his homework was done. The father took H.P. to participate in recreational activities and in family events outdoors. There was no evidence presented that the father has been unable or unwilling to care for his son.

[177] While it is abundantly clear that the father enjoys hunting, fishing camping and a whole host of other recreational activities with H.P., he is also interested in ensuring his son has a proper education and learning opportunities. For example, it was very important for him that H.P. was enrolled in a French program. The father is already thinking about college for his son and hopes his son can benefit from the possibility of tuition assistance given his new spouse currently works at Carleton University. The mother also acknowledged that, prior to the separation, both parents participated in medical and dental visits for the child and parent teacher interviews. They also both attended with H.P. for speech therapy in his early years. I find the evidence establishes the father is equally fit to parent H.P. and make decisions related to H.P.’s health, education, and well-being.

[178] Several of the father’s relatives also testified to the father’s fitness as a parent. Kevin Hamlyn states in his Affidavit that, in all the time he has spent with the father and H.P., he has never seen the father yell at the child or physically force him to comply with his instructions. The father has always been observed to be considerate and a doting father in every way. He also attests that the father makes efforts to make activities with the child fun and appropriate. The father is flexible and makes allowance for circumstances where it is safe to do so.

[179] The OCL Report found both parents had a healthy and positive relationship with the child.

[180] Based on the evidence heard, I find both parents have a strong relationship with H.P. and that both parents are willing and able to care for and meet the needs of the child.

H. Sections 24(g) and (f) CLRA: Plans of care and the child’s cultural, linguistic, religious and spiritual upbringing and heritage

[181] The court must consider the plan of care put forth by each parent: CLRA, s 24(3)(g). I consider this below, in conjunction with the need to maintain the child’s cultural, religious, and linguistic upbringing: CLRA, s 24(3)(f) .

[182] The parents are of the Catholic faith. H.P. presently attends Our Lady of Fatima School, which is part of the Renfrew County Catholic School Board. In addition to the regular provincial school curriculum, H.P. also receives religious and family life education.

[183] H.P. also participates in the core French program offered at the school. It is noted in his report card that he is progressing very well in the French as a Second Language program. He is in grade 4 and still has two more years of elementary school to complete. The mother’s plan is for H.P. to live with her in Renfrew and continue to attend school where he has gone all his life.

[184] The father suggests that H.P. live primarily with him and that he attend a Catholic school in the east end of Ottawa. While he has not identified a particular school, there are such schools in the area. The father proposes a week on/week off schedule. The father would like to have H.P. participate in additional sports activities like soccer. Many of these occur on a weekly basis, and I find, would require the cooperation of both parents.

[185] Counsel for the mother pointed out in closing submissions that the father is focused entirely on blaming the mother for his current situation and the events of the past rather than developing a detailed parenting plan in the best interests of the child. Given the serious criminal allegations made against the father and consequent impact of those allegations on his potential liberty, home, relationship with his son, and reputation, I cannot find fault with the father’s yearning to tell his side of the story. Failing to name a particular school for H.P. does not mean the father has not given thought to H.P.’s well-being and best interests.

[186] Nonetheless, I find it is in H.P.’s best interest to remain at his current school. H.P. has been attending the same school since he was a child and is progressing well. He is able to obtain the religious and French language training which is important for the parents. It was the OCL’s recommendation in 2017 that uprooting H.P. from his school and community would be disruptive. I find that the same holds true in 2021. H.P. is well settled at his present elementary school, and I find that it is in his best interests for him to continue to attend there.

I. Section 24(3)(i) CLRA: Ability of parents to communicate and co-operate with conditions of a court order

[187] Section 24(3)(i) of the CLRA requires the court to consider the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, particularly with one another, on matters affecting the child.

[188] Counsel points out that the parents have not spoken in years and cannot agree on anything. Even their attempts at text communications resulted in arguments and conflicts. This may be the case, but I do not find it warrants awarding decision-making responsibility solely to the mother.

[189] The father recognizes he is excitable and has a loud voice. This was also apparent in his testimony before me. There were several times during his testimony when the father became impassioned about a topic, got worked up, went into great detail about events, and had to be redirected back to answering the question before him. There were other times when the father was emotional and broke down and cried. The OCL investigator also noted in her report that Mr. Proulx presented as oscillating between having a firm and raised voice and crying when interviewed.

[190] It is understandable how the father’s communication style could be perceived as argumentative and could make communication difficult. However, I did not detect any malice in his voice when testifying. Quite the contrary. Despite his fluctuating emotions, the father was able to answer difficult questions about the history of their relationship in a fair and detailed way. He acknowledged his shortcomings, particularly his mental health issues. He was sincere about his feelings for the mother. He loved the mother dearly. He was saddened by the demise of their relationship and devastated by the events of the separation, including the alleged criminal charges. He recognizes now that, as a result of his love for her, he stubbornly persisted in trying to regain her affection for far too long in hopes that, somehow, he could make the marriage work.

[191] Much time was spent at this trial discussing whether the father suffered from dissociative disorder, and if so, what that meant. I find the determination of the father’s specific mental health diagnosis is ultimately of little relevance. The father acknowledges that he has suffered depression, anxiety, panic attacks, and stress and testified candidly about a mental health breakdown in 2011. He obtained psychiatric treatment and now takes antidepressant medication and a sleeping aid.

[192] Dr. Rae provided evidence in the OCL Report that the father, despite his denial, likely has some anger issues. The father refers to having anger issues in his application for the Canada Pension Plan, dated February 22, 2014. More importantly, the father states in a letter he wrote to Counsel for the mother dated October 2, 2016 that his wife was afraid of him because he does “yell and scream” but he has never hurt her and never would. He states in the same letter that he is “getting better with the outbursts and they are 6 months apart…” The father also acknowledges in his Affidavit that he may have a temper when provoked by his wife. While resistant to being labelled as a person with an anger problem, the father did in fact participate in counselling and anger management as part of his treatment program with a psychologist and psychiatrist.

[193] The father denies ever losing his temper with his son. This was corroborated by his family members who have spent time with him and the child on numerous occasions, involving outdoor activities and trips, such as the vacation to Jamaica. I do not accept the father has ever directed his anger at his son. On the contrary, and as discussed earlier, it is the mother who was identified as having issues controlling her temper with the child.

[194] The father testified that he often has episodes where all he wants to do is “flee”. This was corroborated by his sister who attested to the fact that, when things did not work, the father would often walk away from the situation and would sometimes walk for miles. As Ms. Hamlyn pointed out, his “taking off” could be preceded by loud and hurtful words. The father’s brother-in-law also referred to the father’s tendency to flee. I also note that the father left his own wedding in June 2011 and the first family Christmas with his son in December 2011 when he was having trouble coping with the social situation. Whether this fleeing is a result of a dissociative episode or not is of little consequence. It appears to be some form of coping mechanism for the father. More importantly, there is no evidence that it has resulted in any harm to anyone under his care or that it places the child at any risk.

[195] It is well accepted in law that if the parties are unable to communicate appropriately to make important decisions, the bests interest of the child will not be advanced. There must be some evidence before the court that the parents are able to communicate effectively with one another: Kaplanis v Kaplanis, (2005), 2005 CanLII 1625 (ON CA), 10 RFL (6th) 373 (Ont. C.A) and Lawson v Lawson (2006), 2006 CanLII 26573 (ON CA), 81 OR (3d) 321(Ont. C.A.) at para 15. Having said this, a standard of perfection is not required. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be assured on an ongoing basis: Warcop v. Warcop, 2009 ONSC 6423at para 94.

[196] In this case, I appreciate that the parents have had minimal communication since the separation and often rely on third party adults to assist, such as Ms. Wagar. Nonetheless, I am satisfied that the parents will be able to make decisions jointly concerning the child in the future. Both parents are committed to the well-being of H.P. While they may have had different parenting styles, they were able to jointly make decisions around schooling and therapy prior to the separation. I do not find that that this is such a high-conflict relationship that the parents are unable to share decision-making going forward.

[197] I am also confident that should they need assistance in coming to joint decisions, they each have a close familial support network to assist them in seeing things through. In particular, the father is fortunate to have Ms. Wagar as his partner and can continue to rely on her in assisting with his communications with the mother. The mother acknowledged in her testimony that she has a good relationship with Ms. Wagar and that she often relies on her as an intermediary for issues such as arranging holidays, administering medications, etc.

[198] Ms. Wagar testified before me. She left me with the impression of being someone who is calm, supportive, and fair in her approach with both the mother and father. Even though she is the father’s new spouse and would have witnessed the father’s considerable frustrations over the past years, she demonstrated no animosity towards the mother and was very respectful in her testimony about her. Ms. Wagar works assisting students in high stress situations, and I believe she has the skills and ability to deal with high conflict situations. Going forward, I believe the parents will be able to engage in joint decision-making and, where necessary, Ms. Wagar can assist as an intermediary. I find, therefore, that the past conflict between the parents is not an impediment to an order for joint decision-making.

J. Section 24(3)(c) CLRA: Promoting the relationship with the other parent

[199] 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.

[200] Despite the father’s frustration with the accusations made against him, I believe the father is capable of setting aside his own difficulties with the mother and ensuring that H.P. has a happy and healthy relationship with her, as stated in his Answer.

[201] As previously indicated, I find the mother’s conduct post-separation was motivated largely by her own self-interest and did have the effect of undermining the father’s relationship with the child. There was also evidence presented by the father, witnessed by the Hamlyn relatives, that the mother would speak negatively about the father in front of the child. Kevin Hamlyn described it as manipulation.

[202] However, over the course of several years, it appears that the mother has taken steps to facilitate the father’s relationship with the child. This is evident in the chronology of emails related to arrangements for the father’s access which were filed as an exhibit in these proceedings. They show that, with the passage of time, the mother has become more agreeable to increasing the father’s time with H.P. The mother stated in her Amended Application, and testified in court, that she does believe it is important for H.P. to have a relationship with his father and is willing to facilitate it. I accept her evidence in this regard.

K. Section 24(3)(a) CLRA: Child’s relationship with other siblings and family members

[203] Section 24(3)(a) requires consideration of the child’s relationship with other members of the family, including siblings and grandparents.

[204] It is clear from the testimony of all the parties that each parent has a strong relationship with their respective families. H.P. has benefitted greatly from that over the years. His maternal grandparents have been a constant presence in his life since birth and he even resided with them for 19 months. The mother testified that she is close to all her family and they all appear to live close to the Renfrew area and visit often. The mother lists her parents, her brother, her sister, and their spouses as part of her network of support.

[205] Similarly, the father has a very large and tight-knit family. The family participates in many outdoor and recreational activities together. The Hamlyns’ commitment to the father and H.P. was evident in the fact that they made an effort every other weekend to drive down to see the child once he was born. They have gone on camping trips, vacationed together, and H.P. has also spent time at his aunt’s place while the father was temporarily residing there. H.P. does activities with his cousins, such as attending the annual salmon fishing trip, participating in fishing derbies, and attending outings such as a family and cousin trip to Ripley’s Aquarium in Toronto. In addition to his current spouse and the Hamlyns, the father lists an extensive network of aunts and uncles who can provide additional support in caring for H.P., should he need it.

[206] Another very important consideration is H.P.’s baby half-sister. She is presently 3-4 years of age. Despite the age gap, H.P. is reported to have a very good relationship with her and several witnesses testified that his sister also adores him. It is in H.P.’s best interest to be able to develop his relationship with his only sibling. Additional parenting time with the father will permit that.

[207] H.P. is now almost 10 years of age. The reports and testimony suggest that he is a smart, kind, and well-adjusted boy. It is clear from the OCL Report, the testimony of the parents, Ms. Wagar, and the testimony of the Hamlyn family that H.P. enjoys time with both the maternal and paternal families. Provided that some of the constants in his life remain the same, i.e. his attendance at his current school, contact with the friends he grew up with, time with both the maternal and paternal families, I find that H.P. should be able to adjust to a schedule that accords him more parenting time with his father, his immediate family, and the extended paternal family.

[208] I find that the families of both parents are close to each other and to H.P. and that it is in his best interest to have a parenting plan that maximizes contact with both families.

L. Section 24(3)(e) CLRA: Child’s views and preferences

[209] The CLRA also requires that the child’s views and preferences be considered, giving due weight to the child’s age and maturity, unless they cannot be ascertained.

[210] At the time the OCL Report was presented, the child was five. His present views have not been canvassed. However, there is nothing to suggest that H.P. does not want to continue to have parenting time with both his mom and dad and their respective families.

M. Conclusion: Parenting Plan for H.P. and terms of the Parenting Order

Decision-making

[211] As already indicated, I do not find that the status quo warrants sole decision-making for the mother. Both parents had shared decision-making for H.P. in the past, and I find they are able to do so moving forward. There will be an order that the parties will have joint decision-making for H.P.

[212] The following terms and conditions are also ordered in relation to decision-making:

➢ Major decisions regarding H.P.’s medical care and treatment (e.g. surgery, long term medication, major diagnostics, counselling or therapy) shall be made in consultation with the child's current physician(s), dentist(s) and other health-care providers.

➢ Major decisions affecting the child's educational programming (e.g. psycho-educational assessment or testing, school choice or tutors) shall be made by the parties in consultation with the child's home room teacher.

➢ Neither party shall interfere with religious or spiritual observance of the other with the child. Neither party shall place the child in formal religious, spiritual, cultural or linguistic education without the consent of the other.

➢ If the parties are unable to come to an agreement on major decisions concerning the child, the parties will participate in a dispute resolution process agreeable to both parties.

➢ Each party shall be responsible for making day-to-day decisions for routine emergency medical care while H.P. is in their care, and shall keep the other party fully informed, by email, of any minor illnesses, emergencies, treatments, and medications administered or prescribed while H.P. is in their care

➢ In the event of a serious illness, accident or other misfortune involving the child, the party then having the child in their care shall immediately and promptly notify the other party. During any period of illness or recovery, each party shall have generous and reasonable contact with the child, consistent with the conditions of this order and the welfare and happiness of the child.

➢ Day to day decisions will be made by the party having care of the child at the time.

Primary residence and parenting time

[213] Prior to the March 2021 amendments to the Divorce Act, there was a presumption that a child should have as much time with each parent as is consistent with the best interests of the child: former Divorce Act, s 16(10); see also Young v Young, 1993 CanLII 34 (SCC) at pp 117-118. The maximum contact principle has been now been removed, and there is no longer a presumption of shared parenting. Parenting time must be determined solely on the basis of the child’s best interests.

[214] In this case, each of the parents enjoy a healthy and loving relationship with the child and are able to care for and meet the child’s needs. For this reason, I find that it is in H.P.’s best interest that there be a parenting plan that allows him to spend as much time with each parent as is consistent with his best interests. While a 50/50 schedule would be ideal, the situation is complicated by the fact that H.P. has lived all his life in Renfrew and goes to school there, while the father lives in Barrhaven, approximately an hour away.

[215] When considering a parenting plan that involves the relocation of a child, careful consideration must be given to ensuring the move is in the best interests of the child and not simply the best interests of the parents: Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 at para 49.

[216] I find that it is in the best interests of H.P. to continue to reside in Renfrew. Moving to Ottawa and leaving behind his friends, school, and community would constitute a significant disruption in his life: Elliot v. Turcotte, 2009 ONCA 240, leave to appeal to S.C.C. refused, [2009] S.C.C.A. No. 199. The mother presently lives in Renfrew and has indicated her intention to stay there, even if the MH is sold. Primary residence of the child will therefore be with the mother.

[217] If the mother chooses to leave Renfrew, she will provide the father with 60 days’ notice in writing should he wish to apply to modify the parenting plan.

[218] Having said this, I wish to make it clear that if the father had been living within 15 minutes’ drive from H.P.’s school, I would have ordered that H.P. live with both parents and that parenting time be shared on a week on-week off schedule. In other words, if not for the father’s distance from Renfrew, I would have found that shared residence and equal parenting time would be in H.P.’s best interests.

[219] The father and Ms. Wagar both acknowledged that they are open to moving closer to Renfrew. The decision for the father and Ms. Wagar to relocate involves consideration of many factors: Ms. Wagar’s employment and her commute to work; the best interests of their daughter who is settled in childcare and intends to go to school in that area; the fact that Ms. Wagar has lived in the family’s current home for over 12 years and is settled in this community; and that all of the father’s family live in the Ottawa area. A decision to relocate to Renfrew is an immensely personal family decision that should not be made in haste. If the father and Ms. Wagar choose to relocate to a residence within a 15-minute drive from H.P.’s school, they can always return to court to request a new parenting plan on the basis of a material change in circumstances.

[220] While the child’s primary residence remains with the mother, there will be a parenting schedule that allows the father to have as much time with H.P. as is in the child’s bests interests. There will be an order that the father will have parenting time with the child on alternate weekends plus one additional overnight during the week that the father does not have him. Traditionally, that extra visit would be a mid-week visit. However, in this case, it will be an overnight on Sunday.

[221] I find a mid-week visit is not in the best interests of H.P. for the following reasons. First, the father has no place to enjoy a comfortable visit with H.P. in Renfrew. In the current pandemic, meetings in restaurants and public spaces have been significantly curtailed. Second, meeting the child alone on a weeknight would not allow H.P. to see his sister or Ms. Wagar who are now important members of his family. Third, a weeknight visit would involve a long drive for the father and would result in a disruption of the father’s family time with Ms. Wagar and their very young daughter. It would also mean a potentially late night for H.P. and disruption to his home routine. For all these reasons, I find that an additional overnight on Sunday is preferable to a mid-week visit as it provides H.P. with an opportunity to see his father and family and to do so in a comfortable home environment. An overnight on Sunday also limits the time H.P. spends commuting on any given day.

[222] There will be an order that:

➢ The father’s parenting time will be on a two-week schedule as follows:

Week one – From Friday at 5 p.m. to Monday at 9 a.m. If Monday is a holiday or if school is virtual, then the father will have the child until Monday at 5 p.m.

Week two – From Sunday at 5 p.m. to Monday at 9 a.m. If Monday is a holiday or if school is virtual, then the father will have the child until Monday at 5 p.m.

[223] While the above-noted schedule does not constitute a 50/50 split as sought by the father, it allows H.P. to have, on a consistent basis, more time with his father than he has been able to enjoy since the separation. Under the interim separation agreement, the father’s parenting time was limited to alternate weekends, although I do appreciate that the mother increased the father’s parenting time in the past year to sometimes start earlier on Thursdays. Nonetheless, I find a two-week period is a long period for H.P. to go without seeing his father and that it is in H.P.’s best interest to be able to see his father and family every week.

[224] The proposed weekly schedule also allows H.P. to see his father without too much disruption to his school schedule. H.P. will be taken to school consistently every Monday by his father. In addition to assisting H.P. with schoolwork, attending the school every Monday allows the father an opportunity to meet with H.P.’s teachers and get to know H.P.’s friends and school community. The father is presently not working and is able to drive H.P. to school on Monday mornings or assist him with virtual school on Mondays, should it be operating in that manner.

[225] It is inevitable that modifications will have to be made to the parenting schedule for various reasons. As a result, there will be an order that:

➢ The parents will communicate by email about a request for a change or modification to the regular or holiday schedule when the need for a change arises and with as much notice as possible. A response will be provided as soon as possible and, in any event, within 24 hours of receiving the notice. If a definite answer cannot be given within that time, the parent will advise when they expect to be able to respond about whether the change is agreeable.

➢ Neither parent will make plans for the child when they are scheduled to be with the other parent without first having the consent of the other parent. In addition, the parents will canvas proposed changes to the schedule first with the other parent, and prior to mentioning anything to the child about a change or a special activity.

➢ Either parent may make an urgent request for assistance to the other if he/she or the child is ill, or if an urgent situation arises. Each parent will use his/her best efforts to accommodate such a request.

➢ In emergencies or for unforeseen circumstances (e.g., illness, inclement weather), significant changes in the drop-off and return times will be communicated to the other party by text, email and telephone as soon as these changes become known to the parent having to make them.

➢ If a parent is faced with an unexpected situation, such as illness or a death in the family, or an irregular event like a family wedding, the other parent will make every effort to accommodate a request for a change in the schedule. If the change in the schedule results in the children missing considerable time with the accommodating parent, reasonable “make-up time” will be arranged by the parents.

➢ The parents will make reasonable efforts to ensure H.P. can participate with either parent on special occasions. The parents recognize the importance of the child being able to celebrate special occasions with family and good friends (e.g. family weddings, birthdays, special anniversaries, etc.) and every effort will be made for him to attend.

Transportation of the child for parenting time

[226] The driving for the father’s parenting time will be shared by both the mother and father. Based on the testimony presented, I understood that Ms. Wagar was largely doing the pickup and drop offs to minimize contact between the parents. This was because of the father’s criminal recognizance and the OCL Report’s recommendation that child exchanges occur through a third party. There is no reason why the driving should fall entirely on the father and his family.

[227] It is the mother’s request that H.P. come home from school before visiting with the father. The mother also has a work schedule that permits her to be home in the afternoons. Therefore, there will be an order that:

➢ The mother or one of her family members will be responsible for dropping H.P. off in Barrhaven for visits with the father.

➢ The father or one of his family members will be responsible for dropping H.P. off either at school or at the mother’s home in Renfrew following the visits.

Summer Holidays

[228] Summer holidays will be shared equally by both parents with each parent having one month of vacation time. Each parent will determine how they wish to spend their vacation month with the child and will be responsible for making those arrangements, including camps or other programming, keeping in mind the child’s interests and wishes.

[229] During the one-month period the child is with one parent, the other parent will have an opportunity for two daytime visits to be organized at the discretion of the parents. During the one-month period the child is with one parent, the other parent will also have a minimum of two virtual visits a week with H.P. and additional virtual visits at the request of the child.

[230] There will be an order that:

➢ Each parent will have one month of summer vacation time with H.P.

➢ In even years, the mother will have July and the father will have August. In odd years, the mother will have August and the father will have July.

➢ Each parent will have two day time visits during the one-month vacation period when the child is not with them on vacation as well as a minimum of two virtual visits a week with the child.

Additional holiday time outside of school breaks

[231] In addition, there will be an order that each parent will have an additional 10-day vacation period outside the school holiday schedule. This vacation will allow H.P. to participate in the father’s family’s annual hunting camp should he wish to do so. During that week, the father’s schedule will be from Friday at 5 p.m. until the second Monday at 9 a.m., or 5 p.m. if school is virtual, for a total of 10 days inclusive. The regular parenting schedule will resume thereafter starting at week one. The mother will have a similar 10-day vacation period with H.P. outside the summer vacation schedule to do with as she wishes. During these extra vacation weeks, each parent will be responsible for arranging for any absences and make-up work for the child with the school.

Statutory and other school holidays

[232] There will be an order that the following statutory and school holidays will be shared equally by both parents.

[233] The parties will share H.P.’s school Christmas break. In odd years, H.P. will stay with the mother from Christmas eve until 2 p.m. on Christmas day and thereafter H.P. will stay with the father from 2 p.m. Christmas Day until 5 pm on boxing day. The reverse schedule will apply in even years. The parties will divide the remaining days of the Christmas break equally.

[234] Easter Weekend will also be divided. In odd years, the child will spend Good Friday and Saturday with the mother and Sunday and Easter Monday with the father. The reverse schedule will apply in even years.

[235] H.P. will reside with the mother for the first half of the March Break, commencing on the last day of school and ending on the Wednesday at 4 p.m. H.P. will be the father from Wednesday at 4 p.m. until school resumes at the end of the March Break, on the following Monday morning. The schedule may also alternate in even and odd years.

[236] If H.P.’s birthday lands on a date the child is with the mother, arrangements will be made for the father to have a birthday visit with the child for up to two hours at a location agreed upon by the parties. If the child’s birthday lands on a date the child is with the father, arrangements will be made for the mother to have a birthday visit with the child for up to two hours at a location agreed upon by the parties.

[237] If H.P. is not otherwise with the mother on this weekend, he will stay with her on Mother’s Day weekend.

[238] If H.P. is not otherwise with the father on this weekend, he will stay with him on Father’s Day weekend.

[239] If the parties wish to wish to propose alternate times for exchanges for the above-noted holidays or specify additional holidays to be shared, Counsel for the parties may propose them for my review in the draft Final Order.

Holiday travel

[240] There will be an order that:

➢ If either parent plans a vacation with the child that involves airline travel or travel outside the country, that parent will give the other parent at least 20 days’ notice before the planned trip and will provide flight information, the trip itinerary, as well as contact information for the child during the trip.

➢ Where either parent plans international travel with the child, that parent will prepare, for the signature of the other parent, a consent letter proving that the child has permission to travel. The other parent will not unreasonably refuse to sign the consent letter.

Documents and passports

[241] There will be an order that the mother will keep the child’s passport issued in the child's name, his SIN card, his birth certificate, his health card, and vaccination record at her home, and these documents will be made available to the father as needed.

[242] The mother will also provide a copies of all these documents that are available to the father within seven days of this order.

[243] Both parents will consent to a passport application in the child’s name should one be requested.

Religious traditions

[244] There will be an order that each parent will promote the child’s respect for the religion and the cultural heritage of the other parent.

Access to and sharing information about the child.

[245] The following orders are made to promote the access to information about the child, ensure the parties share information with each other about the child, and that processes are in place to minimize communication issues and conflicts:

➢ The parties may make inquiries and be given information by H.P.'s teachers, school officials, doctors, dentists, health care providers, summer camp counselors or others involved with H.P. The parties shall cooperate and execute any required authorizations for accessing information related to the child.

➢ The parties agree to share information with each other on a regular basis about the child's welfare, including their education and schoolwork, medical needs, health and dental care, counselling, extra-curricular activities and other important issues.

➢ Both parties are at liberty to attend scheduled school events and participate in classroom events or field trips involving the child, and if they intend to do so, will inform the other parent ahead of time.

➢ The parties will use a mutually agreed technological calendaring schedule (like ourfamilywizard.com), with any fee to be split equally, in order to communicate and schedule events.

Parent communication

[246] The following orders will be made to ensure proper communication between the parties and to ensure H.P. is protected from further adult conflict:

➢ The parties agree to keep H.P. out of their conflicts. They will not ask him to pick sides, carry messages, or hear possible complaints about the other parent.

➢ The parties will not speak negatively about the other parent or their extended families in the presence of the child.

➢ The parties shall not leave accessible to the child information or documents pertaining to any issues arising from the separation and divorce and will not permit the child to access personal email or computers where this information may be stored.

➢ The parties will communicate in a civil manner with each other and will not argue in front of the child or involve him in any conflict between them. Each parent will encourage the child to respect the other parent.

➢ Each parent will ensure the other parent has updated contact information of the other parent, including email and a telephone number, as well as contact information for an alternate emergency contact if the parent cannot be reached.

ISSUE 2: Property division

A. Matrimonial home

[247] The mother would like to continue to reside in the MH with H.P. She agrees that if she and the father cannot come to an arrangement for the purchase of his share, the house will be listed and sold. The proceeds will be shared, minus the present debts discussed below.

[248] Before a sale can be made on the market or an offer to purchase the father’s interest, there needs to be a valuation of the property. There will be an order that the father will provide the mother the names of three agents who can appraise the current market value of the home within 15 days. The mother will select an appraiser from the list. The property appraisal shall be completed within 30 days. To minimize any potential conflict, each party will have a family member attend the appraisal with them.

[249] Upon receiving the appraisal, the mother will make a reasonable offer to the father for the purchase of his share within 60 days. If the father refuses the offer, the house shall be listed for sale within 90 days. In assessing the mother’ reasonable offer, the father should consider that this is the home that H.P. grew up in, is located ten minutes from his school, and is a home that once belonged to the mother’s family.

[250] Each party is entitled to an equal share of the value of the property.

[251] The mother paid for a new oil tank for the MH in the amount of $3,418.25 in December 2018. The father’s portion of that expense is approximately $1,709.12. There will be an order that the father reimburse the mother for that expense out of his proceeds from the sale of the property or as part of the mother’s purchase offer.

B. Promissory Note

[252] The mother testified that, when the parties moved into the MH, they had entered into an agreement to pay the grandmother a mortgage in the amount of $90,000 for the home. The mother claims that the parties were supposed to pay $600/month to the grandmother, and that it was the father’s responsibility to make these monthly payments. The mother claims that she would give the father cash to give to the grandmother or aunt and was shocked to find out, seven years later when the parties attended the bank, that the father had never made any of the payments and that there remained a $45,000 debt to the grandmother. Years later, in 2011, the parties signed a one-sentence promissory note in relation to money owed to the grandmother. The father denies there was ever any agreement to pay the grandmother $600/month.

[253] Neither the maternal grandmother nor the aunt testified in these proceedings. No documentation was filed as to the nature or the terms of this agreement, the amount of money it involved, when it was entered into or whether it constituted a loan or gift to the parties.

[254] Whatever the form of this agreement with the grandmother and maternal aunt, I do not accept the mother’s evidence that she was not aware for seven years that a debt owed to her own mother had not been paid down. While financial issues between family members can be delicate matters of discussion, I do not accept that the mother would not have addressed this debt with her own mother at some point over the seven-year period.

[255] Similarly, I find it difficult to accept that upon providing the father with $600 monthly, or from time to time, for the express purpose of making payments against a debt, the mother would not have followed-up with the father as to the completion of that transaction or inquired with the bank on the state of the debt, particularly given that money was very tight and the couple was experiencing considerable financial stress. In the absence of clear and cogent evidence of the parties’ liability vis-à-vis the grandmother and maternal aunt, I find this $90,000 promissory note will not form part of the debts to be accounted for against the sale of the MH.

C. Equalization of property and credit card debts

[256] The mother seeks an equalization payment for the division of property in the amount of $15,048.97, as per the Net Family Property Statement (“NFP”) dated October 27, 2021, filed as an exhibit at trial. Nothing was filed by the father to dispute that amount.

[257] In addition, the mother seeks in her Amended Application dated October 29, 2020, compensation for payments she made to address the debt on the Scotiabank credit card account ending in 022 (“Scotia card 022”). According to the Applicant’s Request to Admit, the debt on this card at the time of separation was $1,310. However, following separation, the father incurred $12,462 of debt on the Scotia card 022. The father then used another joint Scotia credit card ending in 939 to pay down the debt on Scotia card 022.

[258] The mother paid a further $4,211.51 of her own funds to further reduce the debt on Scotia card 022 and seeks return of these funds. The mother also requests an order that there be an addition to the father’s equalization payment for the balance of the Scotia card 022, which was estimated at $5,062 on August 21, 2020. In short, the mother seeks an additional payment of $9,273.50 to the equalization payment. Subtracted from this should be the father’s payment of $383.51 made towards the debt he incurred on Scotia card 022, bringing the total amount payable to the mother to $8,889.99. The mother requests that the amount be taken from the father’s share of the MH.

[259] No arguments were presented at trial disputing the debt incurred by the father on Scotia card 022. The father testified that, following the separation, he had little money, had to incur expenses to outfit his son, and had lost access to a large number of possessions. While the explanation is reasonable, the father is nonetheless responsible for the debt accumulated post-separation.

[260] There will be an order that the father will pay the mother $8,889.99 for the debt incurred on the Scotia card 022 from his share of the MH. There will be an order that the mother pay the balance of the Scotia card 022 within 30 days of the father’s payment.

[261] There will be an order that the parties divide the proceeds of the sale of the MH, after paying the costs of the sale and joint debts, should the parties not agree on a reasonable offer for the purchase of the father’s share of the MH. The mother will receive 50% of the proceeds plus $15,048.97 for equalization of property, $8,889.99 for the settlement of the debt for the Scotia card 022, and $1,709.12 for his portion of the oil tank for a total of $25,648. The father will receive 50% of the proceeds minus $25,648.

[262] Alternatively, should the parties agree on a reasonable purchase price of the father’s share of the MH, the mother shall pay the father the agreed upon amount minus $25,648.

D. Chattel

[263] The father feels strongly that he lost a lot of property following the separation. He claims the mother undervalued and sold joint property. The mother, on the other hand, claims that she was required to sell joint property to pay off a large portion of their debts. The mother testified that while she received a larger share of the chattel, the father received the more valuable items.

[264] The parties filed lists of chattel indicating how they each valued different pieces of property. However, these valuations were based on their own personal assessments. There was no expert evidence or receipts provided. Some of the property has degraded with the passage of time. The parties have also not provided this Court with any clear submission on what their respective positions are with respect to the chattel.

[265] I find that in the absence of clear and cogent evidence on the valuation of the chattel or a clear submission from either of the parties on the specific relief being sought with respect to the pieces of chattel, I am not in a position to make a fair and just order in favour of either party.

ISSUE 3: Divorce and child support

[266] The parties both seek a divorce which shall be granted upon receipt of a valid marriage and clearance certificate. The matter can be returned to me to address this application.

[267] The mother originally requested Guideline child support. She subsequently learned that the father earns only Canada Pension Plan income in the amount of $13,735, resulting in a Guideline amount of support of $55.26/month. As a result, Counsel for the mother submitted in closing that the mother is withdrawing her request for child support since the amount payable is low.

[268] The mother has been earning an annual income as a Canada Post Worker between $27,000 to $30,000 for the past five years, except for 2019 when her income was approximately $40,000 due to additional social assistance and CPP payments. The mother lives with her new spouse, but it is unclear how much he earns. The mother did not include the spouse’s annual income in her financial statement except to say that he contributes $1,000/month to the household expenses.

[269] The father also lives in a dual household. His spouse earns $65,579/year. The father also supports a second child.

[270] Child support is the right of the child. Only the father’s income should be taken into account in calculating Guideline support. Nonetheless, consideration can be given to the father’s spouse’s income to assess whether hardship would result by the order of child support: Potvin v Potvin (2001), 2001 CanLII 28144 (ON SC), 21 RFL (5th) 180, at para 23. While the amount of child support payable by the father in this case is low, I find it is an amount that can benefit the mother in providing for the child’s needs and would not cause the father undue hardship given that he is living in a stable dual income household with Ms. Wagar. There will be an order that the father pay Guideline child support.

[271] There will be an order that each parent provide to the other a copy of their Income Tax Return and Notice of Assessment by June 1 of every year. If the father’s income increases, the mother may request or apply for additional child support.

Costs

[272] The father is the successful party at this trial. The father was successful on the issues of decision-making responsibility and parenting time with H.P. Had the father been living in Renfrew, H.P.’s residence would have been with both parties and equal parenting time on a week on-week off basis.

[273] There will be a costs award to the father. If the parties are unable to come to an agreement, both parties may file written submissions. In trying to resolve the issue of costs, the parties are reminded that even in situations where bad faith or unreasonable conduct is alleged, costs awards must be reasonable and proportional and take into consideration the party’s ability to pay.

[274] If costs submissions are filed, they shall not exceed two pages, exclusive of the Bills of Costs and Offers to Settle. The mother shall file her submissions by June 2, 2021, the father by June 16, 2021, and the mother will have until June 22, 2021 to reply. Please email the submissions to scj.assistants@ontario.ca and to my attention.

Order

[275] Counsel for the Parties will prepare and submit a draft Final Order approved in form and content that is consistent with the rulings and orders set out in this decision.

Somji J.

Released: May 20, 2021

COURT FILE NO.: 16-772

DATE: 2021/05/20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Amanda Proulx

Applicant

– and –

Robert Proulx

Respondent

REASONS FOR DECISION

Somji J.

Released: May 20, 2021