COURT FILE NO.: FS-17-90706

DATE: 2021 06 11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

E.M.B.

Jared Teitel and Kristen Normandin, for the Applicant Father

Applicant

• and -

M.F.B.

Karmel Sinclair, for the Respondent Mother

Respondent

HEARD: May 10-14, 17-21, 25-28; June 1, 2021

REASONS FOR JUDGMENT

MANDHANE J.

1. A.F.B. (she/her), is a happy and healthy four-and-a-half-year-old girl (“the Child”). She is bright, well-spoken, intelligent, and sometimes shy. Her favourite activities include drawing, painting, playing dress up, applying makeup and nail polish, playing with toys, watching movies, and playing on her iPad. She is enrolled in junior kindergarten at a local Catholic school but attends online due to the pandemic.

2. The Child’s parents are E.M.B., the Applicant (“the Father”) (he/him), and M.F.B., the Respondent (“the Mother”) (she/her). They both love the Child very much and want what is best for her.

3. The Father seeks joint parental decision-making pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (“Divorce Act”). He also asks for overnight parenting time on alternating weekends, a predictable holiday schedule, and for week-about parenting time during the summer. He proposes that exchanges take place at a gas station in Halton region.

4. The Mother opposes the Father’s application and seeks sole parental decision-making responsibility. She asks me to order that the Father have six hours of supervised parenting time with the Child every week. The Mother is concerned about the Father’s drinking and asks me to order him to use an alcometer and attend addictions counselling. She is only agreeable to introducing overnight parenting time after the Father completes an alcohol abuse program. Finally, the Mother seeks retroactive and ongoing child support and related orders.

5. To determine the appropriate parenting orders, I start by summarizing the parenting regime in the Divorce Act, while highlighting how the new parenting provisions implement some aspects of the United Nations Convention on the Rights of the Child. I then go on to interpret the parenting provisions in a manner that is consistent with children’s rights and Canada’s obligations under international law.

6. In applying the law to the matter before me, I find that it is in this Child’s best interests for the Mother to have sole parental decision-making responsibility, while allowing the Father to access important information about the Child and attend significant events in the Child’s life.

7. The Father’s parenting time should be increased to include regular overnight parenting time, and a predictable summer and holiday schedule. Parenting exchanges should take place at a gas station between Brampton and London.

8. The Father shall abstain from using alcohol during his parenting time. He shall continue to use as alcometer consistent with previous court orders. It is also in the Child’s best interests for the Father to successfully complete an alcohol abuse program, after which time he may discontinue use of the alcometer. At that time, his overnight parenting time with the Child shall be safely increased.

9. The Father shall pay ongoing child support consistent with the federal Child Support Guidelines. He will also play his proportionate share of s. 7 expenses, up to a maximum of $100 per month.

[1] OVERVIEW

10. The parents met in high school and married on October 18, 2014. After the Child was born in 2016, the Mother left the workforce. The Mother eventually returned to the workforce but is currently unemployed and collecting employment insurance. The Father is a long-term, unionized employee of Core Forming; he works regular hours and has extended benefits. He worked throughout the marriage, after separation. and during the pandemic.

11. On October 19, 2017, the parents argued and separated, and the Father left the matrimonial home. The Peel Regional Police officer that attended the home noted that the Father’s use of “alcohol was a factor” in the verbal dispute. The officer recommended that the Mother and the Child stay at the maternal grandparents’ home overnight. In a subsequent investigation by the C.A.S., the Mother had denied that the Father had ever been intoxicated in front of the Child. The C.A.S. closed its file on December 18, 2017.

12. The Mother eventually moved back in with parents, and the Child lives in in the multi-generational household that includes her mother; her maternal grandparents; her two maternal aunts; an uncle; and her infant cousin. The Child is very close to the Maternal Grandmother.

13. After separation, the Father bounced around between various family members before moving to London, Ontario at the end of August 2018. The Father currently lives in London with his sister S.B. and his mother C.B. This month, the Father expects to move into a basement apartment that he is renting out from C.B., who will be living in the main part of the house. The basement apartment has two bedrooms (one for the Father, and one for the girls to share), a kitchen, a living area, and access to a backyard.

14. The Child sees the Father every Sunday for a six-hour visit. More recently, she has had two overnight visits. During his parenting time, the Father is generally responsible for feeding, clothing, bathing, and putting the Child to bed. Numerous photos and videos show the Father caring for and playing with the Child. Their favourite activities include building forts out of pillows and blankets, jumping on pillow piles, painting, doing crafts, playing soccer and basketball, and swimming. For the past two years, the Father’s parenting time has taken place at his other sister, S.M.’s, house in Georgetown. The Child is close with S.M. and her 14-year-old cousin, M.B.

15. The Child has a younger half-sister, R.B. The Child often asks to speak with her “little sister” on Facetime. The Father is separated from R.B.’s mother A.B.B. who also lives in London. The Father has regular parenting time with R.B. and, if he is granted overnight parenting time, he plans to eventually coordinate schedules so that both girls are with him on alternating weekends in London.

[2] THE PROCEEDINGS

16. Immediately after separation in October 2017, the Father saw the Child sporadically and only while she remained in the Mother’s care.

17. The Father commenced this litigation less than a month after the parents’ separation. On November 14, 2017, after the Father brought an urgent motion, the parties agreed to a temporary order allowing the Father to see the Child every Tuesday from 5:30 to 7:30 p.m. and every Sunday from 10:00 a.m. to 4:00 p.m., for a total of eight hours per week. The Mother was responsible for transferring the Child to and from parenting time. The Father also agreed to pay interim child support on an ongoing basis.

18. Until he moved to London in August 2018, the Father exercised his mid-week access at S.M.’s house in Georgetown. After his move to London, he brought the Child to his aunt’s and uncle’s house in Brampton.

19. Both parties brought motions in December 2018. By this point, the Father had moved to London and could no longer exercise his mid-week access in Brampton. The parties signed Temporary Minutes of Settlement on December 18, 2018, that were incorporated into a court order. The Father would have weekend parenting time every Sunday from 10:00 a.m. to 6:00 p.m., for a total of eight hours. He would see the Child for a few daytime visits over the holiday season, though not on December 24 or 25. The Father agreed to undergo hair follicle drug testing, and to provide the Mother with video-recordings of readings from a handheld breathalyzer device (BACtrack) before and during his parenting time.

20. Considering the repeated motions and countermotions, LeMay J. was assigned to case manage this matter in March 2019. In April and June of 2019, the parties attempted to resolve their issues by way of mediation but were unsuccessful. While the parties continued to abide by the temporary order regarding parenting time, there were no orders or agreements in place with respect to parental decision-making.

21. On November 4, 2019, the matter was set down for a five-week trial during the May 2020 sittings and marked pre-emptory to both sides. On April 27, 2020, due to the pandemic, the May 2020 trial was adjourned to January 2021 and again marked pre-emptory on both sides. LeMay J. also ordered disclosure of the Child’s educational, medical, and therapeutic records.

22. After the onset of the COVID-19 pandemic on or around March 16, 2020, the Mother unilaterally withheld the Father’s in-person parenting time for a period of about two months. After bringing an urgent motion, the Father’s in-parenting time was reinstated by Justice Fowler-Byrne on May 21, 2021, albeit for only two hours per week. The Court expected the parties to gradually expand parenting time back to eight hours per week when it was safe to do so.

23. On September 28, 2020, after bringing a motion, the parties agreed, and the court ordered, that the Father’s parenting time be restored to its pre-pandemic level such that the Father would see the Child every Sunday from 10:00 a.m. to 4:00 p.m. (six hours).

24. On November 30, 2020, the trial was adjourned to the May 2021 sittings at the request of the Mother’s counsel.

25. The same day, LeMay J. ordered that the Father have expanded parenting time on Sundays from 10:00 a.m. to 6:00 p.m. (eight hours), that he have parenting time on December 24, and that he be allowed three overnight weekend visits. All the parenting time was to take place at S.M.’s house. To date, the Mother has only agreed to facilitate two of the three overnight visits ordered by LeMay J. She says that she is concerned for the Child’s safety in the Father’s care.

26. On or around January 17, 2021, the Mother called 9-1-1 to report that the Father had not properly secured the Child’s car seat. The police referred the matter to Peel C.A.S. who investigated and closed the file.

27. On March 2, 2021, the Child’s doctor, Dr. Renee Lewi, contacted the Peel C.A.S. pursuant to her mandatory reporting obligations. She reported that the Father and S.M. may have “tongue kissed” and touched the Child inappropriately during the Father’s overnight visit. As of March 24, 2021, after conducting a joint investigation, the Peel C.A.S. did not verify any risk of harm and closed their file, and the Halton Regional Police refused to lay charges.

28. On May 3 and May 7, 2021, LeMay J. twice rejected the Mother’s motions to adjourn the trial scheduled to proceed on May 10, 2021. This litigation has become toxic and is threatening to negatively impact the Child’s emotional well-being. A trial was both urgent, and in the child’s best interests.

29. On May 10, 2021, the parties appeared before me for a four-week trial by zoom videoconference. I was greatly assisted by counsel to receive all evidence and submissions electronically. Both parties gave evidence from private spaces within homes shared with extended family. The Mother made the difficult decision withdraw the Child from online school for the duration of the trial.

30. Both parties and extended family members testified, as did the Child’s family doctor and psychotherapist. Both parties were represented by counsel, and I received extensive written and oral submissions.

31. The Father seeks joint parental decision-making, which he says is in the Child’s best interests because:

• The Mother has unilaterally made major decisions;

• The Mother refuses to share related information about the Child; and

• The Mother has failed to take adequate steps to protect the Child’s emotional well-being in the context of this litigation and the March 2021 abuse allegations.

32. The Father asks me to impose a parenting schedule that would allow him to see the Child daily on Facetime, and every second weekend from Friday at 5:30 p.m. to Sunday at 6:00 p.m. (48 hours every two weeks). He also asks for week-about parenting time during the summer and a predictable holiday schedule.

33. The Father says his proposed schedule is in the Child’s best interests because:

• The Child should spend quality time with both of her parents, R.B., and her extended family;

• He is a loving, caring, and capable of taking care of the Child’s needs;

• He has never been violent or abusive to the Mother or Child, before, during or after the marriage, and there are no child protection concerns;

• He does not consume alcohol before or during his parenting time;

• The Mother has denied him regular and consistent parenting time with the Child, sometimes for months at a time, and recently breached a court order related to overnights;

• The Mother has shown a pattern of interfering in his parenting time; and

• He will mitigate any pandemic-related risks by getting vaccinated and adhering to public health guidelines in his household.

34. The Mother opposes the Father’s application and seeks sole decision-making responsibility, which she says is appropriate because:

• The Child is young, and the Mother has always been her primary caregiver; and

• She has made all decisions for the child since birth, while the Father has not shown any interest in making major decisions related to the Child.

35. The Mother proposes that the Father have parenting time every Sunday from 10:00 a.m. to 6:00 p.m. (8 hours per week). She proposes that the Father and the Child have three Facetime calls per week. She asks that the Father’s parenting time be supervised by C.B. (or another suitable family member) in Peel Region, and that he not be permitted to travel to London with the Child. The Mother proposes that pick ups and drop offs take place from her home in Brampton. The Mother asks for additional alcohol monitoring before and during the Father’s parenting time.

36. The Mother is not agreeable to any summer parenting time. However, she is agreeable to gradually introducing Christmas and overnight parenting time, but only after the Father completes an alcohol abuse program. In particular, she would agree to the Father having one overnight with the Child every other month, from Saturday at 12:00 p.m. to Sunday at 12:00 p.m. (an additional 12 hours, every other month). This schedule would remain in place at least until the Child turned six years of age.

37. The Mother says that her proposed schedule is better tailored to the Child’s best interests because:

• The Child suffers from separation anxiety and has also expressed some reluctance to visit the Father in the past;

• The Child may have been inappropriately touched by the Father in the past;

• The Father regularly consumes alcohol and cannot be trusted to safely care for the Child; and

• She will mitigate any pandemic-related risks by adhering to public health measures in his household, though she has decided not to be vaccinated at this time.

[3] Weighing the evidence

38. At trial, I heard testimony from both parties, as well the following witnesses:

• The Father’s uncle, who witnessed his parenting time shortly before his move to London;

• The Father’s cousin, who witnessed his parenting time on a handful of occasions before he moved to London;

• S.M., who witnessed the Father’s parenting time over the past two years;

• the Maternal Grandmother, who lives in the same household as the Mother and the Child;

• A.B.B., who witnessed the Father’s past parenting time with the Child, and facilitates his current parenting time with R.B.;

• Brittany Halfyard, the CAS worker responsible for the March 2021 investigation into the family;

• Dr. Renee Lewi, the Child’s family doctor who contacted the CAS in March 2021 pursuant to her mandatory reporting obligations; and

• Ms. Maryna Svitasheva (Ph.D.), a psychotherapist who saw the Child for eight play therapy sessions between October 2019 and February 2020.

39. Unfortunately, much of the evidence at trial was repetitive and irrelevant to the Child’s best interests. This highly litigious approach was not in the Child’s long-term best interests. Both parties are struggling financially and have not yet dealt with the costs of this trial. The Father sold his home to fund this litigation, while the Mother used a significant portion of her equalization payment to hire private investigators to follow the Father.

40. While both the case management judge and I were unable to restrain the parties’ conduct, I refuse to address aspects of the evidence that I found to be irrelevant or of little probative value. Instead, in this section, I provide a summary of my main evidentiary rulings and highlight my overall approach to weighing the relevant evidence.

[a] Credibility of the lay witnesses

41. The parents and their family members were clear and direct when speaking about their own relationships and interactions with the Child, their own ability to care for the Child, and the parents’ plans for the Child’s future care. This evidence was generally reliable, and I am heartened that the Child has so many adults in her life who genuinely care about her well-being.

42. That said, I reject each party’s evidence on some important points. For example, the Father and S.M. were both very evasive when it came to questions about the Father’s alcohol use. I reject aspects of their evidence, as discussed below.

43. On the other hand, the Mother’s extremely prejudicial allegations about the Father and S.M.’s “inappropriate touching” and “marking” of the Child were speculative and ultimately amounted to little more than a mother’s intuition based on her observations of the Child’s demeanor and play behaviours. There was no reliable photographic or documentary evidence to corroborate or confirm the Mother’s concerns. Both the CAS and police investigated the allegations and did not verify the allegations or lay any charges. Overall, the Mother has not satisfied me that the Father or S.M. have ever abused the Child.

[b] The Father’s past conduct

44. Subsection 16(5) of the Divorce Act states that “the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.” To be admissible, the past conduct must be directly and logically linked to the parenting order being sought.

45. The Mother relied extensively on the Father’s past conduct, including conduct that predated the Child’s birth. I reject much of this evidence and refer below only to the past conduct that I determined to be directly relevant to the parenting orders being sought.

46. Parents should not be forced to endure a public shaming to spend quality time with their child. Parents – and by extension, their children – are entitled to a degree of privacy when involved in a family dispute. They should not be subjected to an unrestrained attack on their character that is unrelated to the child’s best interests. This is because parenting does not require any special skills or qualities, and because many imperfect people make perfectly adequate parents.

[c] The Father’s past conduct

47. In practice, this means that evidence of past conduct will only be admissible where, for example, the past conduct took place during parenting time, is inherently risky, affects the party’s capacity to make decisions, or relates to the care of child or another vulnerable person. Mere speculation is not enough, and courts should be careful not to make “reasonable inferences” that are not adequately supported by the evidence. Finally, the court should consider the specific terms of parenting order being sought when determining the relevance of the past conduct.

[d] Evidence of the health professionals

48. In terms of the two health professionals, Dr. Lewi and Ms. Svitasheva, I accepted their evidence regarding their treatment, care, and observations of the Child. However, as will be discussed, Dr. Lewi’s evidence about the alleged abuse was not reliable and cannot be afforded much weight.

49. Ms. Svitasheva was a very credible witness. She was forthright about her observations, but also candid about the limits of her memory and her opinions. While I accept her evidence about her observations of the Child, its probative value is diminished because she has not seen the child in nearly a year and a half.

[e] Other evidence

50. I admitted and reviewed voluminous documentary, photographic, and video evidence, as well as the professionals’ various business records. I refused to admit surveillance videos of the Father at his workplace in 2020 because these were not properly disclosed in advance of trial and were not sufficiently probative to overcome the prejudice caused by the trial unfairness issues: E.M.B. v. M.F.B., 2021 ONSC 3691.

51. After receiving submissions from both parties, I relied heavily on the social science research about child development summarized by the Association of Family and Conciliation Courts (AFCC-O) in its the Parenting Plan Guide (2021): https://afccontario.ca/parenting-plan-guide-and-template/.

[4] PARENTING ORDERS UNDER THE DIVORCE ACT

52. On March 1, 2021, the parenting provisions contained in the Divorce Act came into force and the amended provisions apply to the application before me: ss. 126(1)-(2).

53. The definitions, test, and factors set out in the Divorce Act are mirrored in the amended Children’s Law Reform Act, R.S.O. 1990, c. C.12, which also came into force on March 1, 202q. For ease of reference, below, I refer only to the Divorce Act.

[a] Parenting orders

54. Subsection 16.1(1) of Divorce Act allows me to make an order providing for exercise of parenting time or decision-making responsibility by either parent. Parental “decision-making responsibility” is defined in s. 2(1) as the “responsibility for making significant decisions about a child’s well-being, including in respect of: (a) health; (b) education; (c) culture, language, religion and spirituality; and (d) significant extra-curricular activities.

55. “Parenting time” is defined as time that a child spends in the care of either parent, whether the child is physically with that person during that entire time.

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

57. Here, I interpret the parenting provisions consistently with children’s human rights and Canada’s obligations under international law: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at paras. 53, 174; Baker v. Canada, 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at paras. 69-71.

58. A human rights-based approach to the amended Divorce Act calls on courts to recognize, respect and reflect each child as an individual distinct from their parents, and to empower children to be actors in their own destiny. In practice, it requires judges to probe into each child’s lived experience, to meaningfully consider their views and preferences, and to craft an order that promotes that child’s best interests and overall well-being.

[b] “Circumstances of the child”

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

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

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

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

d) The history of care of the child;

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

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

g) Any plans for the child’s care;

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

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

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

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

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

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

61. A human rights-based approach fundamentally recognizes children as subjects of law rather than objects of their parents. Making children more visible in legal proceedings that affect their rights is fundamentally important in Canada because children are not guaranteed legal representation in family law proceedings. Therefore, in my view, even where there is no direct evidence about the child’s views and preferences, s. 16(3)(e) still requires the court should make a reasonable effort to glean and articulate the child’s views and preferences wherever possible, considering the child’s age and maturity and all the other evidence before it.

[c] “Best interests of the child”

62. When making a parenting order, I must stay laser-focused on the child’s best interests: Divorce Act, s. 16(1). Parental preferences or “rights” play no role except insofar as they are necessary to ensure the best interests of the child: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at paras. 74-77, 159, 210.

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

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

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

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

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

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

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

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

68. I agree with the Committee that judicial determination of the “best interests of the child” is broader and more wholistic than a child welfare agency’s determination of whether a child needs protection. I also agree that “an adult’s judgment of a child’s best interests cannot override the obligation to respect all the child’s rights under the Convention”: at para. 4.

[d] Maximal contact

69. There is no presumption in favour of joint parenting and the term “maximal contact” is no longer found in the Divorce Act. The legislation states in s.16(6) that: “in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child”.

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

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

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

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

[5] THE CHILD’S CURRENT CIRCUMSTANCES

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

• First, I consider the current circumstances of the Child given the factors set out in the Divorce Act;

• Second, I determine the Child’s best interests given her unique circumstances; and

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

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

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

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

[a] The Child’s needs

75. The Child is happy and healthy and does not have any diagnosed disabilities or other special needs. The Child attends Catholic public school in Peel. Through the course of the trial, a picture emerged of the Child as a loving, exuberant, creative, and adaptable Child, who can sometimes be shy around strangers or in new situations.

76. The Child clearly benefits from regular interaction with her large and loving extended family, and exposure to both the Italian and Portuguese sides of her culture.

77. Given the pandemic, her age, and the nature of online learning, the Child’s school routine is not yet well-established. She does not have the reality of playing on a playground, leaving the house each day, meeting new people, being cared for at day care, or otherwise dealing with any period of separation from her mother.

78. To date, given her young age, the Child has not been directly exposed to conflict between the parents in any way that would be meaningful to her. For over four years, the parents have facilitating daily Facetime calls, communicated by text regularly, and done countless parenting exchanges. They each can only point to only a handful of examples where the Child may have been exposed to conflict – for example, when S.M. surreptitiously recorded parenting time exchanges, or when the Mother complained about the Father’s “manipulation” within earshot of the Child. Overall, the parents have managed to shield the Child from direct exposure to their conflict.

79. However, I am concerned that the parents have not always acted in the Child’s best interests while pursuing this litigation. The Father allowed S.M. to become overly involved in the litigation and escalate tensions, for example, by acquiescing to her installing surveillance cameras to record his parenting time with the Child.

80. For the Mother’s part, I am concerned that she has exposed the Child to unnecessary stress and anxiety before, during, and after her parenting time with the Father. The Mother explained in cross-examination that she would often use Facetime calls during the Father’s parenting time to inquire into the Child’s care and well-being, repeatedly asking in a soft, concerned voice: “What is wrong? Are you okay?” This questioning was troubling because it seemed to have an impact on the Child’s mood. Given that there was no rational basis for the mother’s repeated expressions of concern, I find that the Child likely formed the impression that her mother was concerned for her safety during the Father’s parenting time and that the way to end the inquiry was to say that she missed her mother. Without going into the details, Ms. Svitasheva’s account of the Mother’s interactions with the Child before and after play therapy are largely consistent with my own. Ms. Svitasheva testified that the Mother had warned her that the Child would likely not be willing to leave her mother to engage in the play therapy but, to the contrary, the Child had no problems leaving the Mother and played appropriately. Overall, the Mother’s impressions of the Child did not always match the Child’s emotional state or her capabilities.

[b] The Child’s relationship with the Mother

81. The Mother does not have any intentions to change the Child’s home environment, which is rightly described as loving and healthy. The Child is deeply attached to all the family members with whom she lives, and her Nona, the Maternal Grandmother is particularly involved in her care.

82. The Mother and the Child have a very strong and loving bond. The Mother has been responsible for the Child’s day-to-day care since birth; she took maternity leave after the Child was born. Apart from the two recent overnight visits, the Mother has been solely responsible for establishing the Child’s nighttime routine, which includes bathing her, giving her a bottle, and snuggling. The Mother and the Child have always slept in the same room at night.

83. The Child’s strong attachment to her mother is age appropriate and natural given her lived experience of pandemic lockdowns and online learning. On the other hand, I am somewhat concerned that the Mother has becoming increasingly dependent on the Child for emotional support and companionship. This may become problematic as the Child ages and seeks greater independence for her primary caregiver. The Child will soon need to learn to be apart from her mother. For example, for in-person learning and for expanded parenting time with the Father.

84. The Mother has always been responsible for making decisions regarding the Child’s healthcare, education, and extracurricular activities on her own. The Mother is responsible for taking the Child to regular check-ups and for occasional visits to a walk-in clinic or the emergency room. The Mother enrolled the Child in Catholic school in Brampton and, since September 2021, she has facilitated the Child’s daily attendance in online school. She has also enrolled the Child weekly ballet lessons that are currently taking place virtually.

[c] The Child’s relationship with the Father

85. The Father has been less involved in the day-to-day care of the Child on account of his competing work obligations and, later, because of the separation and his decision to move to London. At present, he Facetimes with the Child everyday at 7:00 p.m., and sees her every Sunday for a six-hour visit at S.M.’s house.

86. Because of this parenting schedule, the Father has generally been unburdened by the routine aspects of parenting, such as having the Child admitted to hospital after she became dehydrated from vomiting, registering her for junior kindergarten during the pandemic, or trying to identify the cause of her persistent eczema.

87. That all being said, the Father ably provides for her basic needs during his parenting time. The Mother agreed under cross-examination that the applicant is a “good father.” The Father and the Child have a close relationship that is based primarily on supportive and creative play. Given that the Father only sees the Child for a few hours once a week, their time is largely unstructured and is spent playing with her cousin, doing sports, painting, doing crafts, and playing dress up. The Father has endeavoured to create memorable experiences during his recent overnight parenting time, for example, by doing make-your-own-pizzas and setting up a tent in S.M.’s basement for a sleepover. The Child has repeatedly told professionals that she feels safe with daddy.

88. It is, however, undeniable that the Father’s parenting time has been marked by instability and it is likely that some of the Child’s separation anxiety is related to the lack of predictability in her routines during the Father’s parenting time. After leaving the matrimonial home, the Father had parenting time with the Child at the residences of various family members in Peel and Halton Regions, as well as in the back of his truck during the pandemic. On a go-forward basis, the Father proposes to have overnight parenting time in his basement apartment in London, which the child has never visited.

89. The Child is close to and familiar with all the members of her father’s household and extended paternal family. The Mother trusts the Child in the care of her Vovo C.B. and the paternal aunt, her Mina S.B. I also find that the Child has a close and loving relationship with her Tia S.M. and M.B.

90. The Father hopes to raise the Child and R.B. as siblings. Overtime, as R.B. becomes older, he plans to coordinate his parenting time so that he can care for his two daughters together. Both the Mother and A.B.B. support the half-sisters having a close relationship.

91. While the Father ably provides for the Child’s needs during his parenting time, he is generally not responsible for making medical or educational decisions for the Child and has not taken an active role in such decision-making in the past. The Father does not have strong preferences regarding parental decision-making, but would like to be informed and involved, for example, by receiving report cards and medical reports, attending parent-teacher conferences and specialist’s appointments, and so on.

92. While there are no current child protection concerns, the Mother alleges that the Child may have suffered abuse at the hands of the Father and/or S.M. The Mother presented very little direct evidence about the alleged abuse.

93. Dr. Lewi formed a vague impression about what might have happened after speaking with the Mother and observing the child. Under cross-examination, however, Dr. Lewi admitted that she did not personally believe that the Child was being abused by the Father. She explained that she reported the matter to CAS because she was legally obligated to do so and because she trusted them to investigate the matter properly.

94. On March 24, 2021, Peel C.A.S. closed their investigation into the family, and did not verify any risk of harm to the Child. I reviewed the C.A.S. file and heard evidence from the investigator Brittany Halfyard. Ms. Halfyard has a Master of Social Work degree and has worked for two child protection agencies since June 2017. Ms. Halfyard had no personal interest in the matter before the court, was aware of her professional obligations, acted consistently with C.A.S. protocols, took contemporaneous notes, and was generally a reliable witness.

95. In separate interviews with Ms. Halfyard and with a police officer, the Child presented as happy and energetic (even demonstrating a cartwheel during the police interview). When asked directly, the Child denied that anyone touched her private parts or that anyone had hurt her recently.

96. The Mother complained to Dr. Lewi about S.M.’s conduct towards the Child on three occasions and spoke to the C.A.S. about the same. The C.A.S. did not open a file in relation to S.M. and did not investigate the Mother’s concerns about her “inappropriate touch.”

97. The Mother alleges that S.M. drew on the Child’s feet during the Father’s parenting time, and burned the Child’s navel by placing a hot, black object on it. There was no contemporaneous photographic or medical evidence to suggest that these events took place, let alone that S.M. was involved. I also find Dr. Lewi to be an unreliable witness in this regard. Beyond her failure to speak to the Child alone, I am troubled by the doctor’s admission that, after discussing the alleged burn with her “Portuguese” administrative assistant, she formed an impression that S.M. had engaged in “Portuguese witchcraft” and noted the same in the Child’s medical file. She also advised the C.A.S. of her “witchcraft” theory.

98. Under cross-examination, Dr. Lewi admitted that she had told the C.A.S. that “the mark on [the Child’s] stomach is not the issue” but rather that the Child was “afraid” to attend visits with the Father. Dr. Lewi said that this was the first and only time the child had told her that she was afraid to attend visits. On the other hand, Dr. Lewi refused to acknowledge that her opinion regarding “Portuguese witchcraft” was uninformed, unreliable, and culturally insensitive to the Child (who is Portuguese on the Father’s side). Overall, I find that Dr. Lewi prejudged the allegations against S.M. without sufficient, reliable evidence.

99. Having found that there is no evidence to support the Mother’s allegations of abuse by either the Father or S.M., I now turn to her allegation that the Father’s abuse of alcohol poses ongoing risk to the Child.

100. The Father denies that his drinking is cause for concern in relation to his parenting of the Child. While he admits that he drinks on the job, drinks in his car at lunch, visits the Beer Store multiple times per day, and regularly drives after consuming two or three beers, he says that none of this takes place during his parenting. He notes that the C.A.S. has never verified any risks to his children n relation to his drinking.

101. I find that both Father and S.M. minimized the genuine safety concerns associated with the Father’s use of alcohol. Their evidence lacked credibility when considered against his own testimony regarding his level of consumption, and the testimony of the many people who lived with him on a day-to-day basis over many years, including the Mother, the Maternal Grandmother, and A.B.B.

102. A.B.B. was forthright and direct in her evidence about the Father’s daily use of alcohol during their relationship and the negative impact that it had on his parenting of R.B. and M. Her biggest concern was that the Father was generally unavailable and uninterested in caring for or making decisions related to the children. She recounted him driving home after drinking at work and then continuing to drink well into the evening. This was consistent with the Mother and Lucy’s evidence about the Father’s consumption patterns during the marriage.

103. A.B.B. further testified that the Father would sometimes get angry while intoxicated. Once, he threw her and the children’s belongings out onto the front lawn, locked A.B.B. and M. out of the house, and withheld R.B. until C.B. and S.B. arrived to calm him down. The Father denied being intoxicated but admitted that was angry and regretted his actions. This event precipitated the Father and A.B.B.’s eventual separation.

104. Yet, despite A.B.B.’s concerns about the Father’s drinking, there is nothing in their March 30, 2021 Separation Agreement regarding alcohol abstinence, counselling, monitoring, or testing. Under cross-examination, A.B.B. admitted that she did not have any current concerns with the Father’s drinking while caring for R.B. and M. She also acknowledged that, during the trial, the Father had been picking up the children up from daycare in his truck.

105. There is no direct evidence that the Father drinks before or during his parenting time with the Child, and there is ample evidence to prove that he does not. At the Mother’s request, the Father produced three clean drug and alcohol tests on November 11, 2017, November 30, 2018, and December 18, 2018. He has also proven his sobriety through regular use of his BACtrack device.

106. A.B.B. testified that, when they were living together, it was the Father’s routine to stop drinking at 7:00 p.m. on Saturday, so that he could “blow” before picking up A.B.B. at 10:00 a.m. on Sundays. The Father admitted in cross-examination that he is aware that it takes about 12 hours to clear alcohol from one’s system. Since December 18, 2018, he has sent the Mother over 200 negative BACtrack readings before and during his parenting time with the Child.

107. Both the Mother and A.B.B. felt that the risk of the Father drinking during his parenting time has been largely mitigated to date by the presence of either S.M. or S.B. during his parenting time. Indeed, the Father has not had routine parenting time with the Child alone, on weeknights, or for periods extending beyond his alcohol clearance time of 12 hours. His ability to remain sober in these situations has been untested to date.

[d] Willingness to support a relationship with the other parent

108. The Father is supportive of the Mother’s relationship with the Child. He generally believes that she is a good mother and trusts her to care for the Child on a day-to-day basis. His only concerns relate to the Child’s exposure to this litigation by the Mother, and her failure to take steps to get psychological help for the Child when she suspected alleged abuse.

109. The Father drives from London to Georgetown each week for his parenting time and has always abided by all court orders in terms of returning the child on time and using the BACtrack device.

110. In contrast, the Mother has not supported the Child’s relationship with the Father. Despite there being no verified concerns about abuse or neglect at any point before or after separation, the Mother refuses to consent to more than eight hours of parenting time per week. As a result, in the years since separation, the Child has only had two overnights with the Father, and never visited him in London. The Mother now asks me to order supervised parenting time.

111. Twice the Mother has refused to abide by the court-ordered parenting schedule, and unilaterally blocked the Father’s parenting time. At the outset of the pandemic, from March 16, 2020 onwards, the Mother refused to facilitate the Father’s in-person parenting time contrary to the order of November 14, 2017. After hearing the Father’s motion, on May 20, 2020, Fowler-Byrne J. ordered that the Father’s parenting time be reinstated, consistent with public health guidelines.

112. More recently, from March 19 to April 19, 2021, relying on her own reports of abuse to Dr. Lewi and the C.A.S., the Mother breached the existing temporary parenting order and withheld the Child from the Father. The Mother refused to facilitate the Father’s second overnight visit scheduled for March 20, 2021, despite C.A.S.’s specific advice to abide by court orders. Even after learning on March 24, 2020 that the C.A.S. would be closing its file, the Mother refused to reinstate the Child’s parenting time with the Father.

113. The Mother did not attempt to file an emergency motion before the court prior resorting to self-help measures. On April 14, 2021, LeMay J. reinstated the Father’s parenting time. His second overnight took place on May 1, 2021, just days before the commencement of this trial.

114. The Mother’s actions in denying the Father’s parenting time have been wrongful. Temporary parenting orders are presumed to be in the best interests of the child, and the child’s right to maintain an attachment to both parents should not be forfeited except in the most extreme and unusual circumstances: Jennings v. Garrett, 2004 CanLII 17126 (ON SC), 2004 CarswellOnt 2159 (S.C.), at para. 128. Such measures must be especially discouraged when access to the courts is limited due to the COVID-19 crisis: Duffitt v. Graham, 2020 ONSC 2845, at para. 9.

115. To date, the Mother has not kept the Father informed about major decisions regarding the Child’s healthcare, education or extracurriculars. The Mother has also not advised the Father about appointments and meetings, preferring to assume that he would not be interested in attending any of them.

116. Most troublingly, the Mother has used gatekeeping tactics to block the Father’s access to the Child’s health and educational information. For example, Dr. Lewi testified that, after the parents’ separation, she was under the impression that the Mother had sole custody and that, in any event, she would not have felt comfortable speaking with the Father while this litigation was ongoing. After the Mother refused to consent to release of the Child’s medical records to the Father, the Father was required to obtain a court order to obtain them.

117. The Mother also refused to facilitate the Father meeting with Ms. Svitasheva as part of the intake process for the Child’s play therapy, even after it was ordered by LeMay J. This was also despite Dr. Svitasheva saying that a meeting with the Father would have assisted her in addressing the Child’s separation anxiety. Instead, the Mother unilaterally terminated the play therapy and never recommenced it, even after professionals recommended it for the Child.

118. When enrolling the Child in school, the Mother listed herself as having “sole custody”, despite there being no court order in this regard. The Mother did not include the Father as an emergency contact or anywhere else on the enrollment form. She refuses to provide the Father with access to the Child’s Google Classroom Account such that the Father cannot assist the Child with schoolwork, keep up to date on the Child’s education or obtain her school records.

119. Again, there was very little in the evidence to support the Mother’s view of the Father as being anything more than an interested parent who wished to play a greater role in the Child’s life. He was certainly not the prying third party that she painted him out to be.

120. The Father did not breach any court orders in his handling of the Child’s private records after they were disclosed to him as part of this litigation. Yet, throughout the trial, the Mother justified her informational gatekeeping tactics on the grounds of protecting the Child’s privacy. This rationale lacked common sense because preschoolers do not tend to have a strong privacy interest when it comes to information being shared with a parent. This is especially the case where the issue of parental decision-making responsibility is before the courts.

[e] Communication and cooperation between the parents

121. Communication is an ongoing problem between the parents and has worsened over time. At present, the parents have not developed any techniques or strategies to communicate about child-related issues directly.

122. While the Father has consistently tried to be clear, concise, and forthright in his communications with the Mother, over the years, he has increasingly resorted to communicating through counsel. While the Father’s instinct is understandable given the Mother’s incessant and hostile communications and pattern of false allegations, his frequent resort to lawyers has worsened the conflict.

123. The Mother explains that she does not trust the Father or his family, especially when it comes to this litigation. As a result, the Mother admits that she repeatedly demands via texts that the Father provide her with minute-by-minute accounts and photos and videos of his parenting time. For the most part, the Father complies in a good-natured manner.

124. The Mother also complains if the Father does not feed the Child specific items sent along in a cooler, such a fruit and milk and accuses him of not adequately feeding the child. As a result, the Father now asks for an order preventing her from sending food for the Child during his parenting time.

125. In the past, S.M. has felt compelled to present photos of her son’s exposed torso to prove to the Mother that M.B. did not have chickenpox when he was in contact with the Child. S.M. explains that she also recently installed security cameras in her home to defend against the Mother’s constant allegations.

126. The Mother texted the Father repeatedly during the Child’s first overnight. He would often reply within minutes, which would just prompt further questions. During the second overnight, the Mother again texted repeatedly, and commenting negatively on the Father’s choice of “camping” as a theme for the visit, even the Child appeared happy to be sleeping inside a tent with her Father in S.M.’s basement, and seeing the “duckies” on the nature walk with her Father and M.B. the next morning.

127. Given the evidence I have already reviewed, I find that the Mother’s continued distrust of the Father is not borne out by the facts. In the over four years since this litigation was commenced, the Father has abided by all court orders and has never harmed the Child in any way. Everyone agrees that the child is healthy and happy. In this light, the Mother’s communications during and related to the Father’s parenting time have been excessively hostile and probing.

[f] The Child’s views and preferences

128. The totality of the evidence speaks to a Child who is adaptable and generally happy being cared for by all the adults in her life. However, she also sometimes experiences separation anxiety when leaving the care of the Mother.

129. There was no direct evidence before me about the Child’s views and preferences. Therefore, I ascertained the Child’s views and preferences based on the evidence of the many family members and professions who observed the Child, as well as the photographs and videos filed in evidence. For reasons given orally, I decided not to conduct a judicial interview of the Child. I was concerned about the reliability of the Child’s statements about the alleged abuse, and about the propriety of such an interview given her young age and the risk of further traumatizing her on the heels of the recent C.A.S. and police interviews.

130. There is no reliable evidence to suggest that the Child currently fears her father or feels unsafe in his care. During the recent C.A.S. and police investigations in March 2021, after confirming that she understood the difference between a truth and a lie, the Child said she felt safe in the care of her father. Both investigations found no verified risk of harm.

131. The Child does sometimes experience separation anxiety when leaving the care of her mother. The Child is only four years old, and, because of the ongoing pandemic, she has never spent any sustained time outside the presence of the mother. She has never attended daycare or in-person school. She has never had an overnight babysitter besides the Maternal Grandmother.

132. In this context, the Child’s separation anxiety is developmentally normal and does not weigh negatively against the father. A child can fear leaving the care of her primary caregiver, regardless of the strength of her bond with the other parent. Here, the Child’s feelings of anxiety are largely an expression of her lived experience to date and her strong bond with the Mother but say very little about her views and preferences in relation to the Father.

[g] Public health considerations

133. Both parents are generally committed to abiding by COVID-19 protocols and given the higher rates of vaccination and Ontario’s reopening plan, I find that expanding the Father’s parenting time would not pose an undue risk of harm to the Child. Indeed, it will be nice for the Father to have the opportunity to venture further afield with the Child, including to local zoos, pools, and such.

134. As of June 11, 2021, Ontario’s COVID-19 public health measures will allow more extensive outdoor and indoor gatherings, as well as allowing access to certain tourist attractions, day camps, and Ontario Parks: Ontario, “Reopening Ontario,” updated June 7, 2021 and available at https://www.ontario.ca/page/reopening-ontario.

135. The Father works at various construction sites which creates a heightened risk of exposure for the Child. The Father also admits that he did not take the pandemic seriously enough in the early days of the pandemic. However, since May 20, 2020, he has generally complied with pandemic-related protocols after he was ordered by Justice Fowler-Byrne to do so. The Father had an appointment to receive his first dose of a vaccine on June 5, 2021.

136. The Mother has also generally abided by public health precautions by limiting her and the Child’s contact to people within their household. While the Child is not currently eligible to be vaccinated, the Mother has not yet been vaccinated and does not have concrete plans to receive the vaccination.

[6] The Child’s best interests

137. I now move on to considering the Child’s best interests in light of her current circumstances, and giving primary consideration to the child’s physical, emotional and psychological safety, security, and well-being.

138. At page 9 of its 2021 Parenting Plan Guide, the AFCC-O states that it is generally accepted within the growing body of research that children of separated parents do better when:

• They feel loved and cared for by both parents;

• Each parent makes a different and valuable contributions to their development;

• Their lives involve stable and meaningful involvement with both parents, including structured routines and unstructured play;

• Their parents help them to maintain positive existing relationships, routines, and activities; and

• They are permitted to bring personal possessions back and forth between homes.

139. Research indicates that “the strength of a parent’s relationship to a child is affected more by parental commitment, warmth and the ability to meet the child’s needs than it is by time spent with the child”: AFCC-O at page 9.

140. Conversely, children are harmed by exposure to parental conflict. Children generally should not feel as though they must choose between parents, feel guilty about enjoying the company of the other parent, and should feel supported in their relationship with the other parent: AFCC-O, at pp. 10-11.

141. At pages 18 and 19, the AFCC-O notes the following about the normal development of pre-schoolers aged three to five years old:

• They have a growing sense of independence, but they find security in their routines;

• Their social networks are expanding to include other children, teachers, and families;

• They are learning to interact with others and to increasingly understand rules of social engagement, but still require adult guidance, supervision, and support;

• They are prone to fears and anxiety and may have nighttime fears;

• They may have difficulties with separations or transitions, but can generally calm down and settle in; and

• They are alert to the moods and tensions of their caregivers.

142. To assist with making developmentally appropriate parenting plans for preschoolers, the AFCC-O notes at page 17 that “preschoolers can tolerate longer absences from a parent, but a child’s temperament and the pre-separation parenting arrangements must be considered.” They suggest that transitional objects, such as a favorite toy, move between the two homes to help the child manage sadness and anxiety.

143. At page 18, the AFCC-O also recommends a more gradual increase in parenting time where one parent has had has limited involvement with the child’s daily routine, where one parent has less time available for childcare, or where the child has trouble adapting to transitions. For example, they suggest that it might be prudent to order one overnight that can be extended over time to include Friday night.

144. The AFCC-O states that children between ages six and nine will usually start to engage with more people outside of their family and can better manage blocks of time away from each parent because of their “more developed understanding of time”: pp. 19-20.

145. Going forward, the parents must be careful not to expose the Child, whether directly or indirectly, to conflict that might cause emotional harm. The AFCC-Ontario warns at page 18 of their Parenting Plan Guide that preschool aged children “may blame themselves for the anger, unhappiness, or anxiety of their parent, and they may feel that they are responsible for parental separation”: at p. 18.

[a] Parental Decision-Making

146. The Father has never been involved in making major decisions regarding either the Child’s medical, educational, or extracurricular needs. He has never attended routine medical appointments and has left it to the Mother to take the Child to the emergency room or walk-in clinic as required.

147. The Father has generally acquiesced to major decisions being made by the Mother. Most tellingly, despite not being consulted, the Father has no substantive concerns with the Child being raised in the Catholic faith, residing in Brampton with the Mother and her extended family, being enrolled in Catholic public school, attending online junior kindergarten, or being enrolled in ballet.

148. That said, the Father has shown himself capable of providing for the Child’s basic needs during his parenting time. There is no evidence to support disrupting the presumption set out in s. 16.2(2) of the Divorce Act that the party exercising parenting time has exclusive authority to make day-to-day decisions affecting the child during that time. In my mind, “day-to-day” decisions relate to feeding, clothing, bathing, soothing, and providing basic non-emergency medical care to the child.

149. Rather than sending a cooler for the Child’s parenting time, the Mother shall keep the Father informed about the Child’s dietary needs and preferences. This will allow the Father to further develop his capacities as a parent and limit the Child’s exposure to conflict. As she grows older, the Child will be able to communicate her preferences directly.

150. Beyond routine decision-making, the Father seeks an order for shared decision-making responsibilities, albeit with the Mother having the discretion to make the final decision after consultation with the Father in the event of an impasse. The Mother resists such an order. She says that shared parental decision-making is not in the Child’s interests because of the parents’ long history of poor communication and because there is no history of joint decision-making, before or after separation.

151. Overall, the evidence supports the Mother’s position. The existing dynamic between these parents is not conducive to joint decision-making. The parents only communicate with one another through counsel. And while the Mother has generally adopted a more hostile tone in texts, this has been countered the Father’s aggressive litigation tactics. Maintaining the status quo regarding parental decision-making is the only way to reduce the Child’s overall exposure to conflict.

152. I refuse to order joint parental decision-making on account of the mother’s gatekeeping: Unlike the situation in Y. v F.T., 2017 ONSC 4395, in this case, the Father’s has consistently chosen not to prioritize his parental decision-making responsibilities towards the Child. He decided to move to London even though he knew it would significantly limit his involvement the Child’s day-to-day life. Even now, he only proposes to see the Child two weekends per month. In my mind, this is not sufficient parenting time to allow the Father to ascertain the Child’s best interests when it comes to major decisions about her health and well-being.

153. The Father must strive to become more involved in the Child’s life outside of his parenting time. The Father has a right to be informed about the Child’s wellbeing and development through direct receipt of her health, medical and extracurricular records. The Mother shall also consent to the Father being listed as a “parent/guardian” with educational and third-party providers so that he can receive updates, logins, progress reports, and invitations to school events directly. The Mother should keep the Father apprised of appropriate opportunities for him to be involved in the Child’s religious and cultural upbringing.

154. The parents should communicate exclusively about the Child and limit their communications to text message.

[b] Parenting schedule

155. The Child also needs a stable home life that involves spending appropriate and predictable amount of quality time with all their family members, staying enrolled in school, and consistency in terms of parenting exchange locations and times.

156. The Child is young and is clearly attached to the Mother and should stay in her primary care. This will allow her to spend quality time with the Maternal Grandmother and other close family members as well.

157. It is also in the Child’s best interests to have a strong, stable, and meaningful relationship with the Father. The Father’s proposal for two overnights every 14 days, and daily Facetime calls is consistent with Child’s best interests insofar as it proposes regular, stable, and consistent parenting time. Given that the Father does not exercise mid-week parenting time, I find that the daily Facetime calls are a reasonable approach to ensuring continuity between in-person visits.

158. The Father’s request for overnight parenting time is also in the Child’s best interests and consistent with her developmental stage. Overnight parenting time will allow the Father to expose the Child to his home in London, experience more structured parenting time and facilitate the Child spending more time with R.B. The Father should inquire with the Mother to establish consistent and familiar routines. I am satisfied that, going forward, the Father’s parenting time should take place in a single location where the Child has dedicated space to store her favourite clothes and toys, and access to quiet, private space.

159. It is also in the Child’s interests to spend holidays with the Father and his family, and to spend some extended time over the summer with the Father. However, given that the Father will only be seeing the Child for roughly five days per month, I find that it might be difficult for the Child to adjust to week-about parenting time during the summer. Instead, the Child should spend one week in July and one week in August with the Father.

160. It is developmentally normal for preschoolers to experience heightened separation anxiety in relation to their primary caregiver. However, given that the Child has yet to attend in-person school or sleep apart from the Mother, I find that the risk of short-term separation anxiety is heightened in the Child’s case. The Child’s issues with separation anxiety can be mitigated through a parenting schedule that reflects a gradual, step-up approach. There was no evidence to suggest that it would cause any undue trauma to the Child to require her to separate from her mother’s care from time to time: Y. v F.T., at para. 119.

161. While I do not think that the Child requires routine Facetime calls with the Mother during that Father’s relatively limited parenting time, such contact should be facilitated by the Father if requested by the Child.

[c] Alcohol monitoring

162. While I accept that the Father does not consume alcohol before or during his parenting time, I am concerned that his alcohol abuse may have an impact on the Child as his parenting time is expanded. For example, the Father asks me to order that he drive with the Child on Fridays, despite admitting that he often drinks beer at work and drives home. There is also some evidence that the Father is prone to anger when drinking, which could have a greater impact on the Child as her emotional needs become more complex.

163. Overall, the Father’s minimization of his regular abuse of alcohol suggests that he does not have sufficient insight into the impact of his drinking on the Mother, A.B.B., and R.B., or its potential future impact on the Child: see Rideout v. Rideout, 2008 CanLII 31813 (Ont. S.C.), at paras. 10-14.

164. While the Father should certainly continue to abstain from consuming alcohol before or during his parenting time, given his minimization of these issues, I find that it would be in the Child’s best interests for the Father to address his social and emotional dependence on alcohol through participation in an evidence-based alcohol abuse program.

165. Until the Father completes such programming, it is in the Child’s best interests for the Father to limit his weekday driving with the Child, and to continue to use a properly calibrated BACtrack device. After completing alcohol programming, it will be in the Child’s best interests to allow the Father to have expanded parenting time, including on Friday evenings. After completing the programming, for a period of six months, the Father will be required to abstain from using alcohol but will not longer be required to produce the BACtrack readings.

[d] Exchanges

166. It is important to ensure that exchanges take place at a neutral, public location that is not associated with either party, their family members, or past conflict. The Father’s proposal to have exchange take place at a gas station between Brampton and London makes sense insofar as the setting is appropriately public and transactional.

167. It is not in the Child’s interests to have the Father drive to Brampton to pick her up and then turnaround and drive back to London. This would be four hours of driving in potentially inclement weather, without sufficient breaks to guard against fatigue. Splitting the driving between the parents is preferable.

[e] Supervision

168. There is also no cogent evidence to support an order that the Father’s parenting time be supervised. There has been no such order to date, and the Father has spent time alone with the Child in the past. He has never harmed or neglected the Child.

[f] No-contact orders

169. I find no reason to permanently sever the Child’s relationship with S.M. through a non-contact order. The overwhelming evidence is that the Child has strong relationships with all her extended family members, including S.M. and M.B. While S.M. has certainly been overly involved in this litigation, her actions were consistent with the larger dynamic between the parents and the families.

170. I also refuse to order that the Child’s family doctor be changed from Dr. Lewi to a new doctor. Given her separation anxiety, while expanding the Child’s parenting time with the Father, I find that it is in the Child’s interests to ensure consistency and stability in her other adult relationships. The Child has a good relationship with the Child. I am satisfied that Dr. Lewi will abide by court orders that require her to share information with the Father.

[g] Police enforcement

171. I have jurisdiction under s. 36(2) of the Children’s Law Reform Act to direct a police force to enforce a child custody and access order.

172. While police enforcement is generally an extraordinary remedy, it is necessary here to ensure that the Child has stable and consistent parenting time with the Father. The Mother has repeatedly breached court orders and forced the Father to bring motions to reinstate his parenting time. The threat of police enforcement is the only way to ensure that the Mother will not supplement her judgment for that of this court.

[7] CHILD SUPPORT

173. The Father prepared a detailed summary of his child support payments, while the Mother tendered no evidence in support of her allegations of inconsistent or missed payments. I accept the Father’s evidence that he has made all payments on the dates and in the amounts set out exhibit 48.

174. The Father’s 2020 Line 150 income was $67,764 and there is insufficient evidence to impute any further income to him. Child support should be adjusted to $631.33 per month as of June 1, 2021, pursuant to the Child Support Guidelines.

175. The parties shall proportionately share section 7 expenses, and neither party shall incur such expenses without the other’s consent (though such consent shall not be unreasonably withheld). Given his obligations to R.B., the Father’s obligation for the Child’s section 7 expenses shall be limited to $100 per month (excluding medical and dental expenses): see Fisher v. Fisher, 2008 ONCA 11, at paras. 39-40.

176. Both parties must provide up to date financial information to determine the proportionate rate of sharing. The Court does not have up to date financial information from the Mother regarding her 2020 income because she has not produced her 2020 T1 Income Tax Return or 2020 Notice of Assessment or Reassessment.

177. The Mother enrolled the Child in dance classes without consulting or providing notice to the Father. She refused to provide receipts for the lessons until trial. Since August 2019, she has spent $2,452.75 on the lessons. Given the devastating impact that this trial is likely going to have on both parties, it would be unreasonable to require the Father to contribute to the Child’s ballet lessons retroactively. However, going forward, the Father shall contribute towards the dance lessons, up to a maximum of $100 per month.

178. I am also prepared to grant an order offsetting the Mother’s outstanding cost award against the Father’s child support and section 7 expenses. The Father shall not be required to pay child support or contribute to section 7 expenses until the Mother’s outstanding balance is paid off.

179. The Father’s life insurance policy with his employment is $100,000. The Father shall name the Mother as the beneficiary of $50,000 to secure his child support obligations towards their Child.

[8] FINAL ORDER

180. Consistent with the Child’s best interests, I make the following Final Order.

[a] Best interests of the child

181. The parents shall make best efforts to work cooperatively and to make parenting arrangements with the Child’s best interests at heart. The parents recognize that the Child’s best interests shall be paramount in relation to any dispute, conflict, or concern regarding the parenting of the Child.

182. The parents recognize the Child’s need for a positive, ongoing, and stable relationships with both parents. The parents shall make every effort to actively foster and facilitate the Child’s positive relationships with the other parent and with members of the other parent’s extended family.

183. The parents shall inquire directly with the Child regarding her day-to-day needs, views, and preferences. The parents shall also communicate regularly regarding the child’s needs, views, and preferences, especially about her diet and routine, to ensure that the Child is as comfortable as possible in the care of each parent.

[b] Decision-making

184. Major parenting decisions related to healthcare, education, and extracurricular enrollment shall be made by the Mother, who shall keep the Father apprised of such decisions in a proactive and timely manner.

185. The parents agree that the Child shall be raised in the Catholic faith.

186. The Mother shall be permitted to apply for and renew all official government documentation on behalf of the Child, without requiring the Father’s consent and signature.

187. Day-to-day decisions shall be made by the Child’s parent during her parenting time with that parent.

188. The parents shall notify each other immediately in the event of a medical emergency involving the Child while she is in their care.

189. The Child’s medications shall travel with her, regardless of the dosage schedule. The Mother shall provide written instructions to the Father regarding the proper administration of the medication.

190. The Child’s personal items are her own and she shall be free to transport her personal items between parenting locations, within reason.

[c] Participation in major events

191. The Mother shall keep the Father informed, on a proactive and ongoing basis, about upcoming major events in the Child’s religious, educational, and extracurricular life (“major events”).

192. Regardless of the residential schedule, both parties shall be able to attend and participate in major events, including but not limited to the following:

a) Both parents shall celebrate their Catholic faith with the Child;

b) Both parents shall endeavour to attend and participate in significant religious events and milestones; and

c) Both parents shall be entitled to attend and participate in parent teacher conferences; school/program placement meetings; school-wide events; performances and recitals; and other significant events in the child’s educational life.

193. The Mother shall advise the Father of major medical events, including but not limited to, intake and final meetings with specialists, hospital procedures, and surgeries. The Father shall be entitled to visit the child before and after such procedures, including in the hospital or at another location agreed upon by the parties.

[d] Parenting time – General

194. The Child shall reside primarily with the Mother in Brampton and secondarily with the Father in London.

195. The parents shall exchange at the Petro Canada Gas station located at 7443 Trafalgar Road, Hornby, Ontario, L0P 1E0 (by Highway 401 and Trafalgar Road), or at any other location of mutual agreement.

196. The Peel Regional Police, the Ontario Provincial Police, the R.C.M.P. or any other enforcement agency necessary shall be directed and authorized to enforce the parenting terms of this Final Order. This Order shall be in effect for three years from the date of this Final Order.

197. The Child shall attend parenting time consistent with this Final Order unless:

a) The other party consents in writing to a change in the schedule (which shall not be unreasonably withheld);

b) There is a subsequent court order that varies the terms of this Final Order;

c) there is an emergency (in which make-up time shall be scheduled); or

d) where the Mother provides a healthcare provider’s note advising against the visit.

198. In the event either parent would like a temporary change to the parenting schedule so the Child can attend a special occasion, and when the scheduling of these special occasions is out of the control of the parent requesting the change (examples being family weddings, family birthdays, special anniversaries, etc.), the party requesting the temporary schedule change or modification shall request it in writing and provide as much notice as possible. A response shall be provided by the other party within 48 hours of receiving the request. Consent to a request shall not be unreasonably withheld.

199. The parents shall canvass proposed and/or potential changes to the schedule first with the other parent and prior to speaking to the Child about a change and/or a special activity to the extent possible.

200. Within three months of the date of this Order, at his sole expense, the Father shall enroll in an evidence-based alcohol abuse program (“alcohol abuse program”) and provide the Mother with proof of his enrollment in the same.

201. Within eight months of the date of this Order, the Father shall provide the Mother with proof of successful completion of the alcohol abuse program.

202. The Applicant Father shall not consume alcohol, during or within 12 hours of parenting time with the Child.

203. Until such time as the Father proves successful completion of an alcohol abuse program, the shall Father comply with the terms of the court Order dated December 18, 2018, regarding use of the BACtrack device.

204. After the Father proves successful completion of an alcohol abuse program, he will no longer be required to provide BACtrack readings to the Mother.

205. The Father shall ensure that his BACtrack is properly calibrated on an ongoing basis.

206. Both parents shall comply with all current government safety COVID-19 guidelines, including those in place in the Child’s jurisdiction.

[e] Parenting time during the school year (September through June)

207. Until such time as he proves successful completion of an alcohol abuse treatment program, commencing on Saturday, June 19, 2021, the Father shall have parenting time with the Child on alternate weekends, from Saturdays at 9:00 a.m. until Sundays at 6:00 p.m. (one overnight), at his home in London.

208. After he proves successful completion of an alcohol abuse program, the Father shall have parenting time with the Child:

a) on alternate weekends, from Fridays at 6:00 p.m. until Sundays at 6:00 p.m. (two overnights), at his home in London; and

b) if the Father’s parenting time falls on a long weekend (unless specifically set out below), his parenting time shall be extended to include the Friday or Monday (with the same exchange time).

209. During her parenting time, the Mother shall facilitate one daily Facetime call at 7:00 p.m. between the Father and the Child. The Father shall not be required to facilitate a Facetime call between the Mother and the Child during his parenting time, unless requested by the Child (see below).

210. The Father shall have additional parenting time at the Mother’s discretion, consistent with the best interests of the child.

[f] Parenting time during the summer (July and August)

211. The Father shall have parenting time with the child during the summer as follows:

a) During July, for one consecutive period, beginning on Friday at 6:00 p.m. and ending the following Sunday at 6:00 p.m. (9 overnights);

b) During August, for one for one consecutive period, beginning on Friday at 6:00 p.m. and ending the following Sunday at 6:00 p.m. (9 overnights);

c) For clarity, this summer schedule shall commence after the Father’s successful completion of an alcohol abuse treatment program. Until that time, the Father shall have parenting time with the Child on alternate weekends from Saturdays at 9:00 a.m. until Sundays at 6:00 p.m. (as set out at paragraph 27 of the Final Order and at paragraph 207 of the Reasons for Judgment).

212. During the summer, the non-resident parent shall be entitled to speak with the Child once daily at 7:00 p.m. by way of Facetime.

213. The Father shall have additional parenting time at the Mother’s discretion, consistent with the best interests of the child.

[g] Parenting time during holidays

214. This holiday schedule is in addition to the summer and school-year parenting schedules (above) and overrides it in the event of conflict.

215. If the holiday is not set out below, the Child shall spend it with the parent who has parenting time on that day.

216. If the Child is not to be with the Father on Mother’s Day, the Father shall return the Child on Mother’s Day at 9:00 a.m. (instead of the usual time of Sunday at 6:00 p.m.).

217. If the Child is scheduled to be with the Mother on Father’s Day, the Father shall have parenting time with the Child on Father’s Day from 9:00 a.m. until 6:00 p.m.

218. In relation to Easter, in even years, the Child shall be in the Father’s care from Thursday at 6:00 p.m. until Saturday at 12:00 p.m. (i.e., for Good Friday), and will be in the Mother’s care for the rest of Easter (i.e., for Easter Sunday). In even years, the Child will be in the Father’s care from Saturday at 12:00 p.m. until Monday at 6:00 p.m. (i.e., for Easter Sunday).

219. The parents shall share the Child’s Christmas Break. The Christmas Break shall be deemed to start on the Saturday following the last day of school and end on the Sunday before the first day of school.

220. In even years, the Child will reside with the Father for the first half of the Christmas Break. In odd years, the Child will reside the Father for the second half of the Christmas Break.

[h] Information sharing

221. The Father shall have the authority to speak directly to, and receive information directly from, all professionals working with the child, including but not limited to physicians, healthcare professionals, teachers, coaches, instructors, and religious officials (“professionals”).

222. The Mother shall provide the Father with the names, addresses, and phone numbers of all professionals in a proactive and timely manner.

223. If required, the Mother shall provide written permission to allow the professional to release of the Child’s personal information to the Father.

224. The parents shall not ask the Child to relay information or items between them.

[i] Communication

225. The Child shall be free to initiate communication with either parent. The other parent shall, as required and within reason, facilitate such communication.

226. The parents shall communicate via text message or e-mail and only in relation to the Child. If there is an emergency affecting the Child, the parents shall immediately notify one another by telephone.

227. The parents shall make every effort to protect the Child from exposure to conflict.

228. The parents shall communicate with one another in a reasonable and cordial manner. The parents shall actively and on a timely basis advise their extended family to maintain this same standard and to refrain from criticizing the other parent or their extended family in front of the Child.

229. The parents shall refrain from any manner of conflict, or criticism or disparagement of the other parent or their extended family, whether direct or indirect, including and especially when the Child is present or nearby.

230. The parents shall respect each other’s privacy and shall not engage the Child in any discussions or questioning about the other parent’s personal life or activities. The parents shall refrain from any form of interference, direct or indirect, into the life, activities, or routines of the other parent.

[j] Child Support and Section 7 expenses

231. The costs awarded against the Mother by way of Order dated November 30, 2020 shall be set off against the Father’s ongoing child support and Section 7 obligations. No child support or Section 7 payments shall be made by the Father until the Mother’s outstanding costs award has been satisfied in full.

232. To the extent available, both parents shall maintain the Child as a beneficiary of medical, extended health and dental coverage through their employment. Both parents shall ensure that the other has up-to-date information about their workplace benefits and coverage for the Child.

233. Commencing July 1, 2021, and every first of the month thereafter, the Father shall pay the child support in the amount of $631.33 per month pursuant to his 2020 income of $67,764.00 and in accordance with the federal Child Support Guidelines.

234. The parents shall share the Child’s Section 7 expenses (special and extraordinary expenses) in proportion to their income. These proportions shall be determined upon receipt of the Mother’s 2020 tax information, which shall be provided to the Father’s counsel forthwith.

235. Neither party shall incur Section 7 expenses for the Child without the other’s prior written consent, which shall not be unreasonably withheld.

236. The Father’s contributions to the Child’s Section 7 expenses shall be limited to a maximum of $100.00 per month, excluding medical and dental expenses, until the Child will attend postsecondary education.

237. Annually, the parents shall exchange updated T1 Income Tax Returns and Notices of Assessment or Reassessment to the other party each year, within 30 days of the anniversary of this Final Order, in accordance with section 24.1 of the Child Support Guidelines.

238. Unless this Order is withdrawn from the Director’s Office, at the Family Responsibility Office, it shall be enforced by the Director and amount owing under the Final Order shall be paid to the Director, who shall pay them to the person whom they are owed.

239. The Father shall name the Mother as the beneficiary of one-half of his life insurance policy through his employment in the amount of $50,000.00. This designation shall serve as the Father’s security for his child support obligations. Within 60 days, the Father will provide the Mother with proof of the policy and beneficiary designation and, if requested, will sign a direction allowing the Mother to contact the insurer to ensure that the policy is in good standing and all premiums are paid.

240. If the policy is not in good standing at the time of the Father’s death, his child support obligations will be a first charge against his estate and all of the Mother’s rights and remedies against the Father’s estate are preserved.

241. This Final Order bears post-judgment interest at the rate of 2% per year effective from the date of this Final Order. Where there is a default in payment the payment in default shall bear interest only from the date of default.

[k] Divorce

242. Either party may apply to obtain an order for divorce. The costs of the divorce shall be equally shared between the parents.

[9] COSTS

243. The parties were both successful in part. The Father was successful in his application for expanded parenting time, while the Mother was successful in her request for sole parental decision-making.

244. The parties are encouraged to resolve the issue of costs between themselves. However, if they are not able to do so, the parties shall each serve and file their Costs Outlines, any relevant offers to settle, and written costs submissions by June 25, 2021. The costs submissions shall be provided in PDF and Word formats and shall be limited to 15 pages (double-spaced, 12-point font).

Mandhane J.

Released: June 11, 2021

COURT FILE NO.: FS-17-90706

DATE: 2021 06 11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

E.M.B.

Applicant

• and -

M.F.B.

Respondent

REASONS FOR JUDGMENT

Mandhane J.

Released: June 11, 2021