Superior Court of Justice - Ontario
COURT FILE NO.: FC-19-1233
DATE: 2021/05/31
RE: Candice Henry, Applicant
AND
Erik Nielsen, Respondent
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Halia Michalko, Counsel for the Applicant
Sarah Giamberardino, Counsel for the Respondent
HEARD: March 12, 2021 by video conferencing
REASONS FOR DECISION
M. Smith J
[1] The Father Erik Nielsen (the “Father”) brings a Motion for an interim Order seeking the following: (a) increased parenting time; (b) joint decision-making authority with respect to Astrid Marie Nielsen, born on August 8, 2015 (“Astrid”); (c) disclosure regarding the appointments and medical professionals involved in Astrid’s care; and (d) consent for any section 7 expenses exceeding $200.00.
[2] The Mother Candice Henry (the “Mother”) opposes the Father’s Motion and brings her own Motion seeking at least 18 Orders from this Court, including without limitation, the ordering of a Voice of the Child’s Report, payment of child support, equal sharing of section 7 expenses, financial disclosure, anger management course and drug testing for the Father.
[3] The issues to be determined in these Motions can be categorized as follows:
a. Decision-making authority and parenting schedule.
b. Voice of the Child’s Report and the Office of the Children’s Lawyer.
c. Child support and section 7 expenses.
d. Miscellaneous to include medical disclosure, financial disclosure, anger management program and drug testing.
FACTUAL BACKGROUND
[4] The parties were never married. They briefly cohabitated from March 2015 until their separation in November 2015. Astrid is the only child from this relationship. At the time of Astrid’s birth, the parties were no longer living together.
[5] Between November 2015 to July 2019, the parties had agreed to a parenting schedule for the Father. The parties disagree as to the exact terms and duration of this schedule. Suffice it to say that it included, at a minimum, one weekend (with two overnights), every other weekend.
[6] In or around August 2019, parenting time stopped because of the Mother’s concern for Astrid’s well-being. It was alleged that the Father was irresponsible and excessively abusing drugs and alcohol.
[7] On October 24, 2019, Master Kaufman ordered, on consent, that the Father’s parenting time with Astrid be changed to every second weekend Saturday and Sunday, from 9:00 a.m. to 5:00 p.m.
[8] On December 11, 2020, the parties attended before Justice Summers to argue their respective Motions. On the Court’s Motion, the matters were adjourned.
THE POSITION OF THE PARTIES
The Father
[9] The Father submits that from the date of separation until July 2019, his parenting time consisted of one overnight per week and every other weekend, from Friday at 3:30 p.m. to Sunday at 5:00 p.m. This parenting schedule was followed for 3.5 years and Astrid was a healthy and happy child.
[10] In July 2019, the Mother unilaterally stopped the weekday parenting time to eventually cancelling it all together in August 2019.
[11] The Father says that he agreed to Master Kaufman’s Order in October 2019 setting out a new parenting schedule because he had not seen Astrid since August 2019.
[12] The Father claims that the Mother is falsely accusing him of excessive drinking and being negligent. He believes that she has been making these allegations because he had started a new romantic relationship.
[13] The Father argues that the Mother is attempting to exert control over the Father by limiting his time with his daughter. Also, during his parenting time, the Mother demands that the Father uses the boxed meals that she prepares for Astrid, preventing him from cooking.
[14] The Father wishes the status quo to be returned, as it existed before the Mother arbitrarily stopped the parenting time. Also, he wishes to be involved in Astrid’s life, including joint decision-making authority. He says that prior to July 2019, the parents were able to communicate with one another, and there is no reason that he should not have a say in all aspects of Astrid’s life.
[15] On the issue of the section 7 expenses, the Father says that it should be proportional to their incomes, his share being 31%. He does not agree that the neuropath consultations and non-prescription vitamins/supplements are valid section 7 expenses. He is nonetheless prepared to contribute to these costs up to November 4, 2020, but on a go forward basis, he would like to be consulted before an item exceeding $200.00 is incurred.
The Mother
[16] The Mother denies that the Father had overnight parenting time for 3.5 years. Rather, it was from July 2017 until August 2019. It was stopped because of health risks and issues with Astrid.
[17] The Mother explains that the Father exposes the child to second-hand smoke. He has been improperly feeding her, causing Astrid to become sick. Also, at times, he would not pick up Astrid during his parenting time. In sum, the Mother states that the Father has been negligent with Astrid’s care.
[18] The Office of the Children’s Lawyer (“OCL”) has declined to get involved because of a lack of resource. The Mother wishes the Court to order a Voice of the Child Report (“VOC”) because of the concerns she has with the Father’s violent behaviour and his inability to properly care for Astrid.
[19] The Mother claims that the Father has a serious drug problem. She has asked the Father to submit to drug testing, but he has refused. The Mother has submitted to a test and the results returned negative.
[20] The Mother says that the Father was charged with two counts of assault against his girlfriend. This resulted in a criminal Undertaking prohibiting him to communicate with his girlfriend. In or around January 2021, he breached this Undertaking and a new condition was imposed. The Father is now prohibited from contacting the Mother, other than for the purpose of child custody exchanges.
[21] The Mother argues that the Father has the financial means to pay all the arrears of the section 7 expenses. He has been consistently late with child support and he has failed to provide the financial disclosure that was ordered by the Court.
ANALYSIS
[22] It is not unusual that there is conflicting affidavit evidence on highly contentious family law matters. This case is no different. Factually speaking, the parties disagree on most issues, which makes it difficult to determine with any accuracy the validity of the statements made by either party. Many allegations remain untested. It is therefore necessary to proceed with caution and not make any hasty credibility findings.
[23] On the evidentiary record, I have concerns with both parties’ conduct in these proceedings. On the one hand, I am not convinced that the Mother acted appropriately in removing the Father’s parenting time, without taking the required steps to seek the Court’s permission in doing so. The Mother continues to limit the parenting time on the basis that the Father is endangering Astrid, despite the Children’s Aid Society (“CAS”) closing their file and confirming that the concerns raised by the Mother have not been verified. On the other hand, the Father has exhibited some behaviour that is inappropriate such as breaching an Undertaking, missing some of his parenting time, not consistently paying child support or his share of the section 7 expenses.
Issue #1 – Decision-making authority and parenting time
[24] The parties are not married to one another. The primary consideration in determining the decision-making authority and parenting time issues is the best interest of the child: section 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).
[25] Since Astrid’s birth, she has primarily resided with the Mother. The evidence that is before me strongly suggests that the Mother has been responsible for making all decisions regarding Astrid’s health and she has been very diligent in this regard. More recently, at the Mother’s request, Astrid has undergone food allergy tests because she was having symptoms such as rashes, poor weight gain, fatigue and anemia.
[26] The Father seeks joint decision-making authority. It may be true that in the past, the parents were able to communicate with one another. However, currently and regardless of fault, this is no longer the case. I do not agree with the Father’s submission that the level of conflict between the parties has not hindered them in making important decisions regarding Astrid’s health. The Father points to three minor examples where the parties were able to communicate with one another. In my opinion, these communications cannot be viewed as examples of cooperation between parents. The family dynamic remains hostile and conflictual.
[27] Currently, there is a criminal Undertaking that the Father cannot communicate directly or indirectly with the Mother. While it is permissible for the Father to communicate with the Mother to arrange parenting time with Astrid or for emergencies while Astrid is in his care, it is prohibitive. The relationship between the parties, as it exists today, is not conducive to making important joint decisions regarding Astrid’s health.
[28] The Father is worried that if the Mother has the sole decision-making involvement, she will marginalize the Father from Astrid’s life. In my review of the materials, I cannot conclude that the Mother has been marginalizing the Father. She is rightfully concerned for Astrid’s well-being and has been communicating the health information to the Father. That said, to alleviate any of the Father’s concerns, the Mother shall be required to keep the Father apprised of medical issues, medical appointments and providing the Father with the names/contact information for all medical professionals and practitioners involved in Astrid’s care.
[29] Considering the factors set out in section 24 of the CLRA, I find that, on an interim basis, it is in Astrid’s best interest that the Mother have the sole decision-making authority for Astrid regarding any medical issues.
[30] The parties agree to joint decision-making authority for Astrid with respect to education and religious upbringing.
[31] Turning to the issue of parenting time, I disagree with the Mother’s position that there should be no change to the parenting schedule. I am not satisfied that Astrid’s best interest would be served by continuing to limit the Father’s parenting time to only every other weekend, without any overnights. Frequency of contact is very important, especially when it involves a young child.
[32] Prior to July 2019, the Father was exercising more frequent parenting time, without any significant incident. I recognize that the Father has exhibited some conduct that needs to be corrected. The Father has acknowledged some of his shortcomings and I am confident that the Father will take steps to improve.
[33] The Mother has ongoing concerns regarding the Father’s behaviour while in the presence of their child. She refers to his ongoing alcohol and drug abuse, his history of violent behaviour and his recent criminal charges. However, on at least two occasions, the CAS has investigated some of the concerns raised by the Mother and they were not verified. Having reviewed the materials, I am unable to conclude that increased parenting time would endanger Astrid’s life. To the contrary, I am of the view that Astrid would benefit from spending more time with her Father, as this would help in creating a daughter-father bond.
[34] In the absence of any corroborating evidence that Astrid is at risk, I am of the opinion that the original parenting time of every second weekend from Friday at 3:30 p.m. until Sunday at 5:00 p.m. and every Wednesday overnight from 3:30 p.m. to Thursday at 7:30 a.m. should be restored. I am not prepared to make an Order for any make-up parenting time.
[35] During his parenting time, the Father will not smoke in Astrid’s presence and he will make sure that Astrid does not come into direct contact with second-hand smoke.
[36] For the parenting time exchange, if Astrid is at school and/or daycare, the Father can pick her up or drop her off at that location. Otherwise, the exchange shall occur in a public place, to be agreed upon between the parties. I agree with the Father that the police station is not appropriate for a young child. Another public place, such as a Walmart parking lot, can ensure that the Mother feels safe.
[37] I am not satisfied that I should make an order that the Father can only feed the meals that are prepared by the Mother. I find that this is an element of control being exerted by the Mother and it is not warranted or supported by the evidence. The Father will have access to all the medical advice and/or information regarding Astrid’s dietary restrictions and he will ensure that Astrid is properly fed during his parenting time.
Issue #2 – Voice of the Child Report / Office of the Children’s Lawyer
[38] Section 30 of the CLRA authorizes the Court to appoint a person who has the technical and professional skill to assess and report on the needs of a child. The Mother suggests that Chantal Bourgeois, social worker, conduct the assessment. The Father does not agree to a VOC as he is concerned that the Mother will coach Astrid. He would however agree to OCL involvement.
[39] Astrid is 5 years old. At this age, one must wonder if a VOC would serve any purpose. In this case, I believe that an assessment and/or investigation of some kind is required.
[40] The Mother has provided an email from Ms. Bourgeois who confirms that she has conducted VOCs with children of Astrid’s age or younger. Whether Astrid’s views will be given much weight will be dependent upon her emotional maturity and verbal and cognitive abilities.
[41] This matter is highly conflictual and unfortunately, given the historical issues and ongoing problems as between the parents, it may remain as such for numerous years. The allegations of wrongdoing against each other are numerous and continuous. As Astrid gets older and starts to understand the issues at play, the impact of this dispute may become much more significant for her. I believe that it would be in Astrid’s best interest that a neutral third party get involved to assess the situation. It may assist the parties and/or the Court when dealing with this matter on an interim or final basis.
[42] On December 3, 2019, Justice Mackinnon ordered that this case be referred to the OCL. It is not clear if a definitive determination has been made by the OCL. I am renewing the request that the OCL become involved with this matter as quickly as possible and strongly urge them to put the necessary resources to help this family. This case would greatly benefit from OCL intervention.
[43] If the OCL declines to participate in this file, the social worker Chantal Bourgeois shall be retained by the parties to prepare a VOC. The costs associated with this assessment shall be proportionately paid by the parties according to their 2020 reported income.
Issue #3 – Child support and section 7 expenses
[44] It is not disputed that the Father has child support obligations and that he has not always been paying it on time. I accept that there may have been some confusion regarding the non communication restriction in the Undertaking and his ability to send the money directly to the Mother. Regardless, it is the Father’s responsibility to ensure that child support payments are made on time. If needed, the Father should seek the assistance of his counsel and not involve his parents or other family members to make payments on his behalf.
[45] To avoid any further confusion or delay in the payment, despite the existence of the Undertaking, the Father shall be permitted to pay his child support obligations directly to the Mother, by e-transfer on the first day of each month. There should be no further reason for the Father to comply with his child support obligations.
[46] Regarding the section 7 expenses, I accept that as of March 3, 2021 they total $5,074.35.
[47] The Father claims that based upon the parties’ respective incomes, his share of the section 7 expenses amount to $1,573.05. The Mother suggests that her income may have been lower at some point and she questions the Father’s reported income in 2019 and 2020.
[48] On the evidence before me, I am unable to determine with any precision if the Father’s share of section 7 expenses is 31%. It was argued at the Motion that the Father had not fully disclosed his financial information, he drives two vehicles, lives with his parents and as such, he has the financial means to pay half of the section 7 expenses.
[49] At this juncture and based on the evidence presented, I am not prepared to order the payment of 50% of the section 7 expenses. On a without prejudice basis, the Father shall pay the sum of $1,573.05 for expenses incurred up to March 3, 2021. These arrears shall be paid at the rate of $200.00 per month, payable on the 1st day of every month.
[50] For future section 7 expenses incurred, the Father requests that the Mother seek his pre-approval on any amounts exceeding $200.00. I do not find that the Mother is incurring unreasonable section 7 expenses. They relate to daycare or medical expenses for Astrid. I am therefore not prepared to grant the Father’s request. In my view, it is not justified to impose such a restriction, and it would unnecessarily increase the tension as between the parties.
[51] On a go forward basis, the section 7 expenses shall be proportionately shared in accordance with the parties’ respective reported income. Any disputes on the reported income shall be reserved to the trial judge.
Issue #4 - Miscellaneous
[52] The Mother seeks these additional Orders against the Father:
a. Completes an anger management program.
b. Completes a hair follicle drug analysis.
c. Obtains and discloses the medical records dated September 14, 2020, and ambulance records dated September 13, 2020, as referenced in the Ottawa Police Report dated October 12, 2020.
d. Disclose the following financial documents: (i) three current and consecutive paystubs, and the last paystub from 2020; (ii) 2019 and 2020 Income Tax Returns, Notices of Assessment, and Re-assessments; (iii) 2020 T4 Statement.
Anger Management
[53] The Mother says that in or around September 13, 2020, the Father was charged with two (2) counts of assault against his girlfriend, which resulted in a criminal Undertaking. Following this incident, the CAS got involved. In their letter dated December 18, 2020 advising the parents that the “Society has determined that continued involvement is not necessary at this time”, they made the following recommendation:
Children witnessing conflict between adults can have long-term, negative effects. It is the Society’s expectation that all children reside in a home free from partner violence and/or adult conflict. This includes verbal and physical violence. The Society encourages Mr. Nielsen to connect with counselling or with a program that addresses the use of violence in relationship, such as the Caring dads program.
[54] The Mother has repeatedly asked the Father to confirm that he has enrolled in the program recommended by the CAS, but he has not responded.
[55] The Father argues that he has never been aggressive towards the Mother. He claims to be confused as to why the Mother refers to herself as a victim. The allegations against him are starting to cause him stress and they are quite contested.
[56] In the Mother’s affidavit material, she has provided several examples of the Father’s aggressive conduct, which included punching holes in the walls/doors, the severe beating of a friend, the driving dangerously towards the Mother. Also, the Mother has included statements from different individuals who attest, albeit not under oath, that the Father has exhibited aggressive behaviour in their presence. More importantly, despite the CAS’s conclusion that it could not verify that the child was exposed to partner violence, it nonetheless felt it necessary to recommend that the Father take an anger management course.
[57] I recognize that the Father contests these allegations, but I am satisfied on the evidence, which includes a recommendation from the CAS, an independent and neutral third party agency, that the Father has some anger issues that should be addressed. I will therefore order that the Father enroll in an anger management program.
Drug Testing
[58] The Mother alleges that the Father has a serious drug and alcohol problem. She claims that the Father has been under the influence while in Astrid’s presence and she observed him to be intoxicated during a parenting time exchange. The Mother seeks a hair follicle test because it can pick up traces of cocaine.
[59] The Father submits that there is no support to the allegation that he has a drug addiction. The Mother has not sought to amend her pleadings for supervised parenting time, which he says is indicative that there are no child protection concerns.
[60] The Mother relies on the decision of Children’s Aid Society of Halton Region v. Z.I., 2010 ONCJ 617 (“CAS v. Z.I.”), in support of the Court’s authority to order that a parent submit samples of body hair for the purpose of determining drug use. In that case, the Court made a finding that the child had ingested a quantity of cocaine while he was in the care of his parents. It was also noted that the parents had a history of drug involvement. The Court felt that there were serious protection concerns while the child was in the care of the parents. Although the Court acknowledged that an order of submitting hair samples may violate sections 7 and 8 of the Canadian Charter of Rights and Freedoms, Part I of the Constitutional Act, 1982, Schedule B to the Canada Act 1982, (U.K.), 1982, c.12 (the “Charter”), it was necessary to order such a sample because of the rights of the child to safe and secure from harm.
[61] The case at bar is easily distinguishable to CAS v. Z.I.. There is insufficient evidence before me to conclude that Astrid has ever been in danger because of the Father’s alleged drug use. The CAS has been unable to verify that Astrid was at risk of any physical or emotional harm while in the Father’s care. I find that the evidence falls well short of establishing that violating the Father’s rights pursuant to sections 7 and 8 of the Charter would be justified for Astrid’s safety. The Mother’s request is denied.
Disclosure of medical records
[62] The Mother seeks an Order that the Father produce the medical records and ambulance records referred to in a police report that was filed with the Mother’s materials.
[63] On or about October 2, 2020, the Ottawa Police Service sent the Father a Notice of Intent to Produce Documents or Records (“Notice”) in connection with the charges of assault. This Notice refers to Medical Records dated September 14, 2020 and the Ambulance Records dated September 13, 2020. Presumably, these are records belonging to the Father’s girlfriend, the complainant.
[64] First, assuming that these medical records do belong to the Father’s girlfriend, it is my view that such disclosure would not be possible without her consent or at the very least, without notice to the girlfriend that such an order is being sought. Second, I fail to see the relevance in demanding these documents. If it is to support the request that the Father attend an anger management program, this Order has already been made. Otherwise, for the purposes of this Motion, I do not believe that there are any other valid reasons that would warrant such an Order. The Mother’s request is denied.
Financial Disclosure
[65] The Mother seeks an Order for financial disclosure, some of which had already been ordered by Justice Summers on December 11, 2020.
[66] Shortly before the Motion, the Father provided the Mother with some financial disclosure. During argument, the Mother stated that the financial disclosure was not provided 14 days before the Motion, as ordered by Justice Summers. More importantly, it is argued that full disclosure has not been provided. The Mother says that she does not have consecutive pay checks, the handwritten pay stub does not have the companies’ business number, the completed income tax return has not been delivered and the 2020 year end pay stub is still missing.
[67] The Father did not address any of these deficiencies during argument. It is unknown if any or all financial disclosure was eventually provided to the Mother.
[68] It goes without saying that financial disclosure is an integral part of any family law proceedings. If the Father has not provided sufficient information or all financial disclosure requested, he shall be ordered to produce the requested information within 30 days of this decision.
CONCLUSION
[69] For the reasons stated above, I make the following temporary Orders:
a. The Mother shall have sole decision-making authority for Astrid with respect to medical issues.
b. The Mother shall provide the names and contact information for all medical professionals and practitioners involved with Astrid’s care.
c. The Mother shall keep the Father apprised of Astrid’s medical issues, as they arise.
d. The Mother shall advise the Father of all medical appointments made for Astrid, as they are scheduled and no later than 48 hours in advance of the appointment.
e. The parties shall have joint decision-making authority for Astrid with respect to education and religious upbringing.
f. The Father shall have parenting time with Astrid as follows: every second weekend from Friday at 3:30 p.m. until Sunday at 5:00 p.m. and every Wednesday overnight from 3:30 p.m. to Thursday at 7:30 a.m. should be restored. This parenting time schedule to be implemented as soon as possible.
g. The exchange shall occur at the school and/or daycare on the days that Astrid attends school and/or daycare. Otherwise, the exchange shall occur in a public place to be agreed upon between the parties.
h. The Father shall not smoke in Astrid’s presence and he shall not permit that she be exposed to second-hand smoke.
i. The Office of the Children’s Lawyer be requested to be involved in this matter. Failing which, the parties shall retain the services of Ms. Chantal Bourgeois, social worker, to prepare a VOC, with the costs to be shared by the parties, proportionately to their 2020 income.
j. Child support payments shall be made by the Father to the Mother, by way of e-transfer, by no later than the first day of each month.
k. The section 7 expenses are fixed at $5,074.35, as of March 3, 2021. On a without prejudice basis, the Father shall pay these expenses at the rate of $200.00 per month, payable on the 1st day of every month.
l. Section 7 expenses shall, from now on, be shared in proportion to the parties’ respective reported incomes. Any disputes regarding the reported incomes shall be reserved to the trial judge.
m. The Father shall forthwith register for a course in anger management and he shall complete the course and provide the Mother with proof of his completion of the course.
n. The Father shall disclose the following financial documents to the Mother within 30 days of this decision: (i) three current and consecutive paystubs, and the last paystub from 2020; (ii) 2019 and 2020 Income Tax Returns, Notices of Assessment, and Re-assessments; (iii) 2020 T4 Statement.
COSTS
[70] As noted earlier, these Motions were originally scheduled to proceed on December 11, 2020 before Justice Summers but they were adjourned. It was stated by Justice Summers that the Father had failed to file a Factum, he did not have a current financial statement and although he was relying on four affidavits, only one affidavit had been filed. The Court did not have access to the continuing record, and it was commented by Justice Summer that, given the pandemic, it should have been well known by counsel that the Court did not have a copy of the Continuing Record. Justice Summers ordered costs thrown away to the Mother, the amount to be determined by the Motion’s judge.
[71] In the Mother’s affidavit dated March 3, 2021, she outlines the events that led up to the December 2020 Motion. The Mother submits that she was prepared to proceed with the Motions at that time, and she was prejudiced by the delay. The Mother requests that the costs thrown away be fixed at $3,500.
[72] The Father did not address the issue of costs thrown away at this Motion, either in his factum or during argument.
[73] While the Mother may have been prepared to proceed with the Father’s Motion and her own Motion in December 2020, I note that the Mother has significantly amended her Notice of Motion and filed a supplementary affidavit in response to the Father’s affidavit dated December 8, 2020. Had the Motion proceeded in December 2020, the Mother would not have had the opportunity to put forth this new evidence before the Court. The Mother was successful on some of her amended requests.
[74] Costs are at the discretion of the judge. I do not believe that the Mother was markedly prejudiced by the adjournment or the delay in having these Motions heard three months later. The Mother has however, incurred costs for her counsel’s appearance at the December 2020 Motions for which she should be compensated. I fix the costs thrown away at $500.00, inclusive of disbursements and taxes. This amount shall be payable by the Father within 90 days of this decision.
[75] Turning to the costs of these Motions, I am inclined to award no costs on the basis that both parties were partially successful. That said, if either party requests costs, that party shall within 30 days of this decision, serve and file written submissions (5 pages maximum) along with a Bill of Costs and any applicable Offers to Settle. The other party shall, within 15 days thereafter, serve and file written submissions (5 pages maximum) along with a Bill of Costs and any applicable Offers to Settle.
Justice Marc Smith
Released: May 31, 2021
COURT FILE NO.: FC-19-1233
DATE: 2021/05/31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RE: Candice Henry, Applicant
AND
Erik Nielsen, Respondent
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Halia Michalko, Counsel for the Applicant
Sarah Giamberardino, Counsel for the Respondent
REASONS FOR DECISION
Justice Marc Smith
Released: May 31, 2021