COURT FILE NO.: FS-17-0296

DATE: 2021 06 17

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Carren Ann Brown

Hanna Kazman, for the Applicant

Applicant

• and -

Avinaash Prithipal Fagu

No one, for the Respondent

Respondent

H.A.F.S.

Molly Leonard, Office of the Children’s Lawyer, for the Child

HEARD: June 14-15, 2021

REASONS FOR JUDGMENT

MANDHANE J.

[1] OVERVIEW AND DISPOSITION

1. H.A.S.F. (she/her), is friendly, insightful, and articulate (“the Child”). She is finishing grade seven at Greenbriar Middle School, does well in school, and enjoys math, science, and art. She is in the middle of reading the Harry Potter series. For fun, she plays school sports, hangs out with friends, and enjoys time at her family cottage. She helps her Mother take care of her dog, birds, and fish.

2. The Child is a competitive dancer, and spends many hours a week practicing ballet, jazz, tap, acrobatics, and hip hop. Before the pandemic, she entered competitions and performed in recitals but, for now, all activities are online.

3. The Child currently lives in Brampton in a multi-generational household with her Mother and her maternal Grandparents. She has her own bedroom and a playroom in the basement. She feels safe and comfortable in her home.

4. Carren Ann Brown is the Applicant Mother (she/her), and Avinaash Prithipal Fagu is the Respondent Father (he/him). They were in a common law relationship for 12 years and separated in December 2016. The Mother is nurse but is currently on long-term disability and not working, while the Father is a police officer.

5. Before and after separation, the Mother made all decisions regarding the Child's health, education, and extracurricular activities. She is generally responsible for the Child’s day-to-day care, making sure the Child is ready for school, transporting her to dance, and providing emotional support.

6. Unfortunately, since separation, the Child’s relationship with both her parents has been fraught with challenges. The Mother has been open and honest with the Child and the court about her long-term struggles with major depression and the impact on her parenting. To her credit, the Mother has created a plan of care that ensures that the Child is safe and has ongoing support from her Grandparents.

7. The Father, on the other hand, has minimized and concealed his past difficulties such that the potential impact on his ability to care for the Child is largely unknown. While there is some evidence that the Father suffered from PTSD in 2019 due to a work-related incident, he has refused to comply with court orders to produce his medical records and would not consent to release of such records to the Office of the Children’s Lawyer (OCL). There is no information before the Court about the Father’s current mental health status.

8. In the five and a half years since separation, the Father’s parenting time with the Child has been sporadic and generally insufficient to create a durable parent-child attachment. The Father’s last-minute cancellation of parenting time and recent abandonment has made the Child feel rejected and less worthy of love and attention. His refusal to share basic information with her about his life has led her to distrust him. On at least two occasions in 2019, the Father verballed abused the Child and caused her significant psychological distress. While the Child continues to fear spending time alone with him, she hopes the Father will reach out to her by text and phone so they can rekindle their relationship.

9. In her application before the Court, the Mother seeks sole parental decision-making responsibility; primary residency with her and the Grandparents; and parenting time with the Father at her sole discretion, bearing in mind the Child’s views and preferences. The OCL represents the Child and agrees that the Mother’s draft order is generally in the Child’s best interests.

10. While the Father is not currently represented by counsel, I am satisfied that he knew about this trial date and chose not to attend. As a result, there is no evidence before me about the Father’s current plan of care or his proposed parenting schedule.

11. In applying the law to the matter before me, I find that it is in this Child’s best interests for the Mother to continue to have sole parental decision-making responsibility. To the Mother’s sole credit, the Child is remarkably well-adapted and high functioning, The Mother has consistently put the Child’s needs above her own, for example, by moving in with her parents post-separation, and involving the Child in activities that build her confidence and self-esteem.

12. Clearly, the Child should continue to live with her Mother and Grandparents. The ongoing support of the Grandparents is essential to mitigating any risks to the Child posed by the Mother’s mental health disabilities or recent drinking.

13. I also agree with the OCL that any parenting order should empower the Child to rebuild her relationship with her Father in a way that feels safe and comfortable to her. The Mother has been consistently supportive of the Child’s relationship with her Father and his extended Family. As such, the Child shall have parenting time with the Father at the Mother’s sole discretions, bearing in mind the Child’s views and preferences.

[2] WEIGHING THE EVIDENCE

14. This matter was scheduled before me for a four-day trial on the parenting issues only. The outstanding financial issues will be addressed at a four-day trial before me scheduled for June 6, 2022.

15. At trial, I admitted an agreed statement of fact, and business record prepared by the Peel C.A.S. I reviewed voluminous affidavit evidence and heard testimony from the following witnesses:

• The Mother;
• The Grandparents;
• The Mother’s friend, Andrea Borba; and
• The OCL’s clinical social worker, Gillian MacPherson.

16. The Mother was clear and direct when speaking about her relationship and interactions with the Child, her ability to care for the Child, and her plans for the Child’s future care. Her evidence was supported by the sworn affidavits from the Grandparents and Ms. Borba, and was generally reliable. I am heartened that the Child has a number of adults in her life who genuinely care about her well-being.

17. In her affidavit, the Mother relies on the Father’s conduct during their relationship to establish that he has a history of controlling and secretive behaviour. I refuse to admit this evidence. Subsection 24(5) of the CLRA states that “the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time, or contact with the Child.” Here, given the Father’s current absence from the Child’s life and the general passage of time, I find that evidence about his conduct during the parents’ relationship is not sufficiently linked to the parenting orders being sought to be admissible.

18. On the other hand, I am prepared to admit three audio-recordings of private conversations between the Child and the Father that took place in April and June 2019. The Child independently and surreptitiously made the recordings on her personal cellphone to convince her Mother to vary the parenting time arrangements. The videos provide clear and unequivocal evidence of the Father’s past emotional abuse of the Child.

19. I also placed significant weight on Ms. MacPherson’s evidence regarding the Child’s views and preferences: Zamanchuk. v. Baldwin, [2000] W.D.F.L. 345, 96 A.C.W.S. (3d) 257 (Ont. C.A.) at para 10. Ms. MacPherson holds a master’s degree in social work and has worked as a clinical social worker for the OCL since 2012. Her evidence about the Child’s views and preferences was based on meetings with both parents, and five meetings with the Child between February 18, 2020 and April 28, 2021. Ms. MacPherson obtained and reviewed relevant records from the C.A.S., various police services, and from the Mother’s healthcare providers. Ms. MacPherson presented her findings regarding the Child’s views and preferences to both parties in January 2021.

[3] PARENTING ORDERS UNDER THE CHILDREN’S LAW REFORM ACT

20. The amended parenting provisions in the Children’s Law Reform Act, R.S.O. 1990, c. C.12 came into force on March 1, 2021 and apply to the application before me.

[a] Parenting orders

21. Subsection 21(1) of CLRA allows me to make an order providing for the exercise of parenting time or decision-making responsibility by either parent. Parental “decision-making responsibility” is defined in s. 18(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.” “Parenting time” is defined as time that a child spends in the care of either parent, whether or not the child is physically with that person during that entire time.

22. My powers under s. 28(1) of the CLRA 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: Roloson v. Clyde, 2017 ONSC 3642.

23. In my view, the amended provisions of the CLRA must be interpreted consistently with children’s human rights and Canada’s obligations under international law: Barbosa v. Barbosa, 2021 ONSC 4264; referring to R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at paras. 53, 174, and Baker v. Canada, 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at paras. 69-71. In particular, a human rights-based approach to the amended CLRA 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”

24. The CLRA calls on to courts to engage in a rigorous assessment of the child’s specific situation as part of determining their best interests. This is largely a factual exercise based on the totality of the evidence before the court.

25. Subsection 24(3) sets out some of the relevant factors related to the “circumstances of the child”, which include, but are not limited to:

(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.

26. Notably, s. 24(3)(j) of the amended CLRA specifically requires judges to consider the impact of family violence on the child. “Family violence” is defined broadly in s. 18(1) as conduct by a family member towards another family member that is violent, threatening, or that constitutes a pattern of controlling behaviour; that causes that other family member to fear for their own safety or for that of another person; and/or, in the case of a child, “the direct or indirect exposure” to such conduct. The definition of “family violence” in s. 18 (2) lists examples of criminal and non-criminal conduct that constitutes “family violence”, including physical, sexual, psychological, and/or financial abuse, as well as threats, harassment, and stalking.

27. Subsection 24(4) of the CLRA provides still further guidance to courts considering the impact of family violence on the circumstances of the child, stating:

(4) In considering the impact of any family violence under clause (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

28. These provisions are consistent with Article 19 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”), which grants children the right to state protection from “all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment, or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.”

29. The United Nations Committee on the Rights of the Child (“Committee”) notes the devastating impact of violence on children’s survival and their “physical, mental, spiritual, moral and social development”: para. 15. The Committee recognizes the short- and long-term health, development, and behavioural consequences of violence against children and child maltreatment, and states that “exposure to violence increases a child’s risk of further victimization and an accumulation of violent experiences, including later intimate partner violence”: General Comment 13: The right of the child to freedom from all forms of violence, UNCRC, 2011, UN Doc. C/GC/13, paras. 15(a)-(b).

30. The requirement in s. 16(3)(e) of the CLRA to consider the “child’s views and preferences” is consistent with Article 12 of the Child Rights Convention. A human rights-based approach fundamentally recognizes children as subjects of law rather than objects of their parents. Therefore, in my view, Court must give sufficient weight to the Child’s views and preferences, bearing in mind their age and maturity and all the other evidence before it.

[c] “Best interests of the child”

31. When making a parenting order, I must stay laser-focused on the child’s best interests: CLRA, s. 24(1). 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”: CLRA, s. 24(2)-(3). 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.

32. The “best interests of the child” test effectively implements Article 3(1) of the Child Rights Convention. In General Comment 14, the 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.

33. 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.

34. The Committee notes that the best interest analysis is wholistic, explaining at paras. 71-74, that the goal is not simply the “protection and care” of the child but rather their overall “well-being” and “development,” including their “basic material, physical, and emotional needs, as well as needs for affection and safety.”

35. 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

36. There is no presumption in favour of any particular parenting order or “maximal contact.” Subsection 24(6) of the CLRA simply states that: “in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.”

37. When allocating parental decision-making authority, parenting time, and primary residency, the court must arrive at an order that is in the child’s overall best interests based on their unique lived experiences and current circumstances. 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. Again, this is consistent with child rights. The Committee, in General Comment 14, at paras. 65-66, notes that it would be contrary to the child’s best interests to automatically give parental responsibilities to either or both parents. Instead, the most one can say is that all things being equal, the child deserves to have a meaningful and consistent relationship with both parents.

[4] THE CHILD’S CURRENT CIRCUMSTANCES

38. Having set out the applicable law, I now turn to the matter before me. To determine the 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 CLRA;
• 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 the final order.

39. In my view, it is helpful to break down the analysis required under the CLRA provisions this way because it forces the decision-maker to adopt a rigorous approach to each of the analytical requirements set out in s. 24, while also allowing the court to effectively filter out evidence that is irrelevant or overly prejudicial.

40. This analytical approach is also consistent with children’s rights, at para. 97 of General Comment 14, the Committee states that the decision-maker 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

41. The Child is healthy and does not have any diagnosed disabilities or other special needs. The Child has recently begun to describe herself as “happy” and has finally started to make peace with and adjust to her parents’ separation. She enjoys school and has healthy peer relationships. She is very involved in competitive dancing which has been a source of self-worth and self-esteem.

42. According to Ms. MacPherson, the Child is mature for her age and has well-articulated, consistent, and realistic views about both her parents, about her living situation, and about her needs. The Child is open about her Mother’s ongoing struggles with depression and says that she has “good days and bad days.” With the ongoing support of her Mother and Grandmother, the Child has developed strong coping mechanisms in relation to the challenges posed by her Mother’s mental health disabilities. As she has gotten older, she has needed less hands-on care, and has taken on greater responsibility and independence in relation to her day-to-day activities.

43. That said, I agree with the Mother and OCL that the Child will benefit from counselling to deal her feelings surrounding this litigation and her Father’s subsequent abandonment. Moreover, it is important that my order be viewed by the Child as empowering, consistent with her demonstrated maturity, responsibility, and growing independence.

[b] The Child’s relationship with the Mother

44. The Child is deeply attached to her Mother and Grandparents, and the Mother intends to maintain the Child’s home environment, which is rightly described as loving and healthy.

45. The Mother and the Child have a very strong and loving bond. They enjoy watching movies and television shows together, and spending time together at the family cottage in the summers.

46. In her interview on April 20, 2021 with Ms. MacPherson, the Child recounted that, since February or March of 2021, the Mother had been drinking alcohol to excess approximately twice per week, and that she sometimes yelled at the Child, said unkind things to her, and frightened her. The Child said that her grandmother was aware of the issues and was taking it seriously. Pursuant to her mandatory reporting obligations, Ms. MacPherson reported the Mother’s alleged alcohol abuse to the Peel C.A.S. During the trial, Peel C.A.S. confirmed to the Court that they had completed their investigation and had not verified any concerns of harm to the Child.

47. In her testimony, the Mother denied drinking to excess and testified that she consumed a few glasses of wine on occasion. In any event, in Ms. MacPherson’s professional opinion, the risk posed by the Mother’s occasional drinking was mitigated by the presence of the Grandparents.

48. For a few days a month, when the Mother suffers from lethargy related to her depression, the Child is cared for by her Grandparents. I find that these are reasonable, time-bound arrangements necessary to accommodate the Mother’s mental health disabilities. There is no fault in the Mother acknowledging that she requires occasional support and putting that support in place. This is especially the case if support is available in the form of loving grandparents. Overall, the Child is close to her Grandparents, even if they sometimes argue in the manner of normal families.

49. During the relationship, the Mother took maternity leave and later stayed home to take care of the Child. Since separation, the Mother has been solely responsible for the Child’s day-to-day care. The Mother has always been responsible for making decisions regarding the Child’s healthcare, education, and extracurricular activities. The Child’s successes are a credit to the Mother’s exceptional decisions on her behalf.

[c] The Child’s relationship with her Father

50. The Child loves her Father and recounts past times with him fondly. They used to play tag, hide and seek, boardgames. and Wii. He encouraged her athletic pursuits and attended her dance recitals and competitions. She misses her Father’s spicy Indian food.

51. During the relationship, the Father was less involved in the day-to-day care of the Child on account of his competing work obligations and other parenting responsibilities. The Father has never made major decisions regarding the Child and, most recently, withheld his consent to the Child receiving counselling at her school to deal with the impact of this litigation and his abandonment.

52. The Mother has always been supportive of the Child maintaining a close relationship with the Father, her half-brother, and her extended paternal family. Immediately after separation, from December 2016 to June 2017, the Mother was proactive in arranging for the Father to see the Child. He saw her for three or four days per month. Sometimes, the Father would “disappear” for weeks at time without letting the Mother or Child know.

53. The Father increased his parenting time in the summer, seeing the Child between six and ten days in July and August of 2017. By the Fall of 2017, the parents were able to agree on a more stable parenting schedule whereby the Father would see the Child every other weekend from Saturday afternoon until Wednesday morning (approximately seven days per month).

54. During her Father’s parenting time, on December 5, 2017, the Child called her Mother crying, saying that the Father was “mean” to her, and asking to return home. When the Mother called the Father, he refused to speak with her. When the Mother drove by the house to check on the Child, she found her outside, in the dark, waiting to be taken home.

55. The Father refused his parenting time for the remainder of December 2017, including over the Christmas holidays, choosing to vacation with his new girlfriend instead.

56. After resuming his parenting time in March 2018, the Father would repeatedly tell the Child that this litigation was costing him too much money and threaten not to see her anymore. In June 2018, the Child learned that her Father refused his parenting time to spend more time with his new girlfriend. The Child was hurt but did not feel safe bringing up her concerns with him directly.

57. In the summer of 2018, the parents agreed on a summer and holiday schedule. In July 2018, the Mother tried to contact the Father to discuss the Child’s ongoing resistance to attending parenting time at his house. The Father declined her calls and blocked her number. During a trip with her Father to Nova Scotia in August 2018, the Child called the Mother upset, wanting to come home early because of the “fighting”.

58. By the Fall of 2018, the Father was routinely cancelling his parenting time, often at the last minute. When parenting time took place, the Child was increasingly upset upon coming home. The Child would call her Mother in the middle of the night to express her unhappiness and lament the breakup of her family. One time, the Father told the Child that he cancelled her favourite cable channels because he needed the money to pay for her child support.

59. By October 2018, the Child was begging not to attend parenting time. When the Child tried to Facetime the Father to talk to him about her feelings, he blocked her. The Father unilaterally cancelled his parenting time with the Child between October 24 and December 2, 2018. Shortly after being picked up by her Father on December 2, 2018, the Child called the Mother and again asked to return home. The Child said that the Father was ignoring her and that she was in a room alone. The Mother picked up the Child three hours into the Father’s parenting time.

60. While the Father had parenting time from December 15 to 18, 2018, he cancelled his Christmas parenting time. After calling daily, the Child was only able to reach her Father to wish him a Happy New Year on January 8. During their conversation, the Child felt that the Father was not being forthright about his whereabouts.

61. At the beginning of 2019, the Child was routinely calling the Mother during her parenting time and begging to come home because the Father was “mad” at her. The Child often only felt comfortable calling at night, while whispering and crying softly.

62. In April 2019, the Father suggested that the three of them meet at McDonalds to discuss the ongoing issues during his parenting time. When they showed up, the Father confronted the Mother, yelled at her, and told her that he could no longer pay child support. After the Child fled to the bathroom crying, the Mother eventually coaxed and encouraged her to attend her parenting time with the Father. It was during this period that the Child made her first surreptitious recording. After leaving McDonald’s, while still in the car, the Applicant can be heard berating and blaming the Child for the situation between the parents and for his financial woes, as well as denigrating the Mother.

63. The Child’s relationship with her Father changed markedly after an incident in June 2019 when she was in grade five. After the Father was late picking up her up from school, the Child used her cellphone to Facetime the Father’s girlfriend to ask about his whereabouts. After picking up the Child and learning that she had called his girlfriend, the Father became aggressive and angry. In a recording made by the Child, the Father can be heard screaming at the top of his lungs and swearing at the child. The Child repeatedly asks what she did wrong, wonders how the incident was her fault, apologizes, and eventually begs to go home. The Child is clearly emotional, upset, and frightened.

64. After this incident, the Child saw her Father even more sporadically. This was initially a relief for the Child. While the Father eventually apologized to the Child for his behaviour, he lamented that the Mother was keeping her away from him. While the Child did not agree with her Father’s assessment of the situation, she was afraid of challenging him.

65. The Father refused the Child’s requests to see him over Christmas in 2019. He did not call, text, or send a gift. The Child cried on Christmas Day when the Father refused to answer or return her calls.

66. In 2020, the Father saw the Child for a total of two overnight and eight in‑person visits. The last time the Child saw her Father was on her birthday on September 14, 2020, when she and her Mother met the Father for a somewhat awkward but largely uneventful dinner.

67. As of December 4, 2020, the Father stopped responding to the Child’s calls or texts. For Christmas, he texted her a greeting and dropped off a box of candy without seeing her. He rebuffed her attempts at further contact. All the while, the Child was aware that the Father was in regular contact with his other child, her half-brother.

68. In his closing interview with Ms. MacPherson, on January 13, 2021, the Father stated that “he stopped [communicating with the Child] because he believes he is being restricted from seeing [the Child] in person and that he does not want to feel like a pen-pal to his own daughter.”

69. When the OCL explained to the Father that the Child still wanted to have a relationship with him and encouraged him to resume contact, he would not commit, saying, “decisions have been made and I will have to make my decision.” As of the date of the trial, the Father had not contacted the Child.

[d] Parental communication, cooperation, and support

70. The Mother is supportive of the Father having a relationship with the Child. Over the years, she has often contacted the Father to proactively arrange parenting time. The Mother’s efforts have largely been ineffectual because the Father refuses to consistently communicate with her about parenting responsibilities. While the Mother hopes the Father and Child will reconcile, she says that any reintegration must be gradual, and child focused.

71. The Father is de facto supportive of the Mother’s relationship with Child insofar as he has left the Child in her sole care since separation. However, the Father has repeatedly belittled, demeaned, and denigrated the Mother in front of the Child. In this regard, the Father has not been supportive of the Child having a strong, stable, and healthy emotional bond with her Mother.

[e] The Child’s views and preferences

72. Overall, the Child wants to be reassured about her safety, the permanence of her current living situation, and to regain some power and control in her relationship with her Father.

73. The Child feels safe at home and her strongest worry is that the court will order a change in her current living situation. She says that living with her Mother and Grandparents is the right fit because it allows the family to share bills, chores, and stress in a way that makes good sense. She trusts her Mother to make good decisions for her.

74. In contrast, the Child does not trust the Father. She says that the Father generally refuses to share basic information about his life with her, such as where he is living or with whom. He has blamed the Child for his financial struggles, used her as a pawn in this litigation, and demeaned and denigrated her Mother. Very shortly after separation, the Child started carrying a cellphone so that she could call her Mother if she became uncomfortable during his parenting time.

75. The Child also feels rejected by the Father. She does not understand why he prioritizes his relationship with her half-brother over his relationship with her. She sometimes wonders what she did wrong and what she needed to do better. She has articulated her worries to supportive adults. Over time, she has gained more perspective and recognizes that her parents’ actions are not her fault or her responsibility.

76. Most significantly, the Child is genuinely scared of her Father. I find that her fears are legitimate given his behaviour towards her during his parenting time. There are three recordings of his extreme anger and emotionally abusive behaviour, and I have no trouble finding that these incidents were not isolated. For years, the Child had been complaining to her Mother that her Father was verbally abusive during his parenting time and begging not to attend.

77. Remarkably, and consistent with her relative maturity, the Child would still like to have a relationship with her Father. However, given his complete and unilateral withdrawal from her life, she is not ready to jump back into in-person visits or a set parenting schedule. As a first step, she would like the Father to text or phone her. From there, she thinks that her half-brother could act as a buffer when she starts seeing her Father again. She dreams about the day when he might attend her dance recitals and competitions. She wants to make him proud and, certainly, he has a lot to be proud of.

[5] The Child’s best interests

78. Having outlined the Child’s current circumstances in detail, I now turn to her best interests, while giving primary consideration to the child’s physical, emotional and psychological safety, security, and well-being.

79. The overwhelming evidence supports the Mother’s request for sole parental decision-making authority. She has consistently acted in the child’s best interests. She moved back in with her parents to ensure that the Child’s needs could be provided for despite her mental health challenges. She has enrolled the Child in appropriate activities and has tried to get her counselling.

80. In contrast, the Father has never been involved in making major decisions regarding either the Child’s medical, educational, or extracurricular needs, and has refused his consent for her to begin counselling.

81. The Father has not been in meaningful contact with the Mother or Child in many months. However, he has a right to be informed about her wellbeing and development, and about events that he may wish to attend.

82. I also agree with the Mother that parenting time shall be at her sole discretion, bearing in mind the Child’s views, preferences, and best interests. Since separation, the Child has consistently identified real concerns with her Father’s parenting time and brought them to the attention of the adults in her life. Given her exposure to family violence at the hands of the Father, I find that the Child’s psychological safety is paramount and mitigates against ordering a set parenting schedule. Further, considering her Father’s ongoing rejection, it makes sense to give the Child some degree of control over any possible reunification.

83. Both the Mother and OCL are hopeful for a more predictable and regular schedule in the future. I would encourage the Father to reach out to the Child by text to re-establish contact. If he adopts a respectful, patient, supportive, and child‑focused approach, I am confident that the Child will eventually want to see him again.

84. I agree that it will be important for the Child to remain in the same residence as both her Mother and Grandparents. The OCL notes that the Grandparents are protective factors that weigh against any risk of harm caused by the Mother’s mental health disability or recent drinking. In light of the de facto supervision provided by the Grandparents, I don’t find it necessary to impose any specific orders in relation to the Mother’s consumption of alcohol. However, I would encourage the Mother to be mindful about her drinking and the impact on the Child.

[6] FINAL ORDER

85. The Mother shall have sole decision-making authority with respect to the Child.

86. If either parent needs to take the Child for emergency treatment, they shall immediately notify the other parent of the address where treatment will occur and details of the treatment. The parent being notified shall have the right to see the Child and attend with Child at the place where treatment is given.

87. The Child’s primary residence shall remain with the Mother and the Grandparents in Brampton. Any change in the Child’s residential arrangements shall be considered a material change in circumstances.

88. The Mother shall have sole discretion over all aspects of parenting time between the Child and her Father, and such parenting time shall be arranged in accordance with the Child’s views, preferences, and best interests. The Mother shall not unreasonably refuse to arrange parenting time between the Child and the Father.

89. The Father and Child shall be free to contact each other at any time through the Child’s personal cell phone.

90. The Mother shall be permitted to travel with the Child outside of the Greater Toronto Area, and may also authorize the Child to travel outside of the Greater Toronto Area, all without the consent from the Father.

91. The Father shall not remove the Child from the Greater Toronto Area, without the written consent of the Mother.

92. At least 10 days before the Child is expected to travel outside of the Greater Toronto Area, the parent travelling with the Child shall provide a full written itinerary to the other parent, including, but not limited to, the destinations, departure and return dates, flight information, accommodation details and emergency contacts.

93. The Mother shall hold the Child’s health card, birth certificate, passport, and other legal government documents. The Mother shall provide the Father with a high-quality photocopy of the health card.

94. The Mother shall apply for/renew the Child’s passport and/or any other government documentation as needed and shall not require the Father’s signature for the same.

95. Both parents shall be permitted to make inquiries and be given information directly by the Child’s teachers, school officials, doctors, dentists, health care providers, coaches, instructors, or others involved with her care. They will each have access to any information or documentation to which a parent of a child would otherwise have a right of access. If necessary, the parents will cooperate and execute any required authorization or direction necessary to ensure information is provided.

96. Each parent will obtain his or her own school calendar and school notices.

97. Both parents may attend all school functions, all extracurricular activities, and ceremonies. The parties will attend parent-teacher meetings individually, or together if both parties consent.

98. The parents shall make every effort to protect the Child from exposure to conflict or family violence. The parents shall refrain from any manner of conflict, or criticism or disparagement of the Child, the other parent, or their extended family, whether direct or indirect, including and especially when the Child is present or nearby.

99. 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.

[7] COSTS

100. The OCL does not seek costs and costs shall not be awarded against it.

101. At the Mother’s request, costs for this proceeding be deferred until the completion of the trial of the financial issues, commencing June 6, 2022.

Mandhane J.

Released: June 17, 2021

COURT FILE NO.: FS-17-0296

DATE: 2021 06 17

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Carren Ann Brown

Applicant

• and -

Avinaash Prithipal Fagu

Respondent

REASONS FOR JUDGMENT

Mandhane J.

Released: June 17, 2021