COURT FILE NO.: FS-21-00025601-000

DATE: 20210921

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: E. L., Applicant

AND:

M. K., Respondent

BEFORE: Papageorgiou J.

COUNSEL: Christina Doris, for the Applicant

M.K.,

HEARD: September 21, 2021

ENDORSEMENT

Motion

[1] This is an urgent motion brought by the Applicant E. L. (the “Mother”) for: i) an order that she have interim decision-making authority for E.R.K., (the “Child”) or in the alternative that the Mother be permitted to register the Child in a school of her choice; ii) an order that the Mother be permitted to determine parenting time for the Child in accordance with the Child’s views and preferences; and iii) an Order that the Office of the Children’s Lawyer (the “OCL”) be appointed to represent the Child.

[2] The Motion was served on the Respondent M.K. (the “Father”) on September 17, 2021.

[3] He did not file any responding material prior to the hearing.

[4] He attended at the hearing in person and requested an adjournment on the basis that he was served on September 20, 2021 at 8 pm, which is not true based on the affidavit of service—although he says that his lawyer only sent him the materials yesterday.

[5] He also said his lawyer is sick and could not attend. When I asked him about the timing of when he could be prepared with his lawyer he was unclear at first saying a few days and then saying it could be at the end of the week and then saying it would be when his lawyer was better.

[6] He had prepared an affidavit which he sent to the Mother’s lawyer and it was sent to me for my consideration.

[7] After reviewing the Father’s affidavit I determined that the adjournment must be denied. There are important issues with respect to the Child’s failure to attend school for the first two weeks. It is not in his interest to maintain this situation. Indeed, the Father’s request for this adjournment demonstrates his prioritizing his own wishes and preferences above the best interests of the Child.

[8] Any prejudice to the Father can be achieved by making an interim order with a return date where he can attend with his lawyer and make submissions seeking a variation if it is appropriate and, in the Child’s, best interests.

[9] Accordingly, I denied the adjournment.

Decision

[10] For the reasons that follow, I am granting the Orders requested by the Mother.

Background

[11] The Mother alleges that the Father perpetrated abuse against her in front of the Child. This includes emotional, physical, harassment, and stalking which resulted in the Father entering into a two-year peace bond.

[12] The Father also obtained a peace bond against the Mother in the past. The Mother says that the peace bond against her occurred when the Father was trying to rape her and she squeezed his testicles to get away. She went to the police station to have him charged with rape whereupon she was charged with assault and put in jail for six hours. She says that the Father told her he knew how to play the system.

[13] Eventually, the Mother says that she could not tolerate the abuse anymore and signed a separation agreement dated November 27, 2019 (the “Separation Agreement”) under duress whereby she gave up all financial claims and also agreed that the Child would live with the Father. She says she did this because she was living in fear.

[14] The Separation Agreement states that if the parties cannot agree on a major decision for the Child, then the Child will decide his views and preferences will be respected. The Father was also required to consult with the Mother about any major decisions.

[15] The Child is currently 17 years old.

[16] After Grade 8, the Father decided that the Child would be homeschooled and do only virtual school. This was prior to the pandemic. The Mother says the Father did not consult with the Mother about this or about most decisions made.

[17] It is undisputed that the Child left the Father’s home on August 2, 2021 voluntarily. The Father says that on August 2, he asked the Child to go for a walk with him and his wife and the Child declined. When the Father returned, he found a note on the Child’s desk that he had left for his Mother’s residence. Therefore, he went of his own volition to the Mother’s.

[18] The Mother says that the Child texted the Mother on August 2, 2021 and asked her to pick him up.

[19] The Mother telephoned Halton Police to confirm that she was able to pick up the Child without a sole custody order and was advised that there was no issue with that.

[20] She drove to the field the Child directed her to with her current husband. When she arrived, she saw the Child was scared and standing on the side of a field. He appeared anxious, his hands were shaking, and he wasn’t able to speak for a while.

[21] The Child advised the Mother that he had run away when the Father and his current wife were out.

[22] The fact that he brought his government identification with him supports that his intention was to leave permanently.

[23] The Mother says that he advised her that he no longer wished to live with the Father because he was afraid of him and asked if he could live with the Mother. While this is hearsay, I am not admitting it for the truth of its contents, but for the narrative of what happened and what the Mother was told. Where there is other hearsay, I am admitting it for the same reason—as part of the narrative and what the Child told the Mother, not for the truth of its contents.

[24] When the Mother arrived at her home, she saw the Father was in her driveway. The Father denies this. She called the police and they advised her to wait until they arrived. She says the Father left her home after an hour and she entered the home when it was safe.

[25] The Toronto police arrived and interviewed the Child who confirmed that he wished to live with the Mother. The Toronto police advised her that the Child did not have to return to his Father’s and informed the Father of this.

[26] I infer that had the police determined that the Mother had done anything improper or that the Child wanted to go back to his Father’s, they would have brought the Child back to the Father. They did not.

[27] The next day the Mother phoned the Father and advised him of the Child’s plan to live with her and attend in person school.

[28] The Child advised her he wished to start therapy and has seen a therapist three times already. Given that he left the Father’s of his own volition and was able to, I infer that he wanted to see the therapist; otherwise, he could have refused and returned to the Father’s.

[29] The Child has advised the Mother that he wishes to attend school at Richview Collegiate Institute which is in person, but all the Mother’s efforts to register him have been thwarted by the Father. The school will not allow the Child to register in light of the Father’s objections to the School. The Father says that they had agreed that the Child could attend Georgetown.

[30] There is disputed evidence as to whether the Father was able to see or communicate with the Child after he left on August 2, 2021. The Mother says she facilitated communication as desired by the Father; the Father says she thwarted it. It is frankly hard to imagine how a Mother could prevent a 17-year-old from communicating with the Father if he wished to. He has a phone.

[31] The Father does admit that he saw the Child on or about August 29 at the Mother’s home. It did not go well. He says that the Child was staring straight ahead and did not acknowledge he was there. At that time, he says he reminded the Child that he had told his high school in Georgetown that he wanted to do e-Learning for 2021, his first semester. He admits that there was no real conversation about anything other than school and neither any hugs from the Child who seemed distant. He left after 30 minutes and asked if he wanted to go camping in Georgian Bay and the Child said he would let him know. I am inferring that the Child did not want to go because on the record before me he never contacted the Father advising that he wished to.

[32] I am also inferring that the Child is not happy with the Father based upon the Father’s admitted evidence of how he behaved when he saw the Father.

[33] On August 30, 2021, the Father says he confirmed with the Georgetown high school that the Child wished to attend class and the Vice President advised that this was possible for the first semester.

[34] The Father gave evidence that he attempted to pick up the Child for online learning on August 9 which would occur before in-class learning but the Mother told him to stay off of her property.

[35] Again, the Child is 17 years old. If he wanted to go with the Father or attend Georgetown school, I infer that he would have. He has not.

[36] School at Richview began on September 9, 2021. The Father has refused to allow him to be registered.

[37] The Child has missed two weeks of school at Richview and is behind. He has a history of learning issues/speech impediments which makes it essential that he does not miss school.

[38] Since leaving the Father’s home, the Child has accessed therapeutic support, has been vaccinated as he wished (the Father was against this), has been receiving tutoring to support him catching up on gaps in his math and science education.

[39] The Father’s affidavit says that the Mother is vigorously destroying his relationship with the Child; this stretches credulity. The Child left his home of his own volition. The Child would not speak to him when he went to the Mother’s house. He has been offered to attend Georgetown school near the Father’s home and has not. He is 17. He left the Father’s home of his own volition; and I am inferring that if he had any interest in being with the Father and attending Georgetown, he would be doing so.

[40] As well, the Father says after the Separation Agreement the Child spent less than 1 per cent of his time with the Mother because he did not want to.

[41] If that is true, then it is not possible that she was engaged in some long drawn out process of alienation which precipitated the Child’s departure from his home.

[42] The Father also referred to past investigations by Halton Children’s Aid Society from 2018 where they were unable to verify allegations made against him. I did not find these relevant to the issue before me.

[43] The Mother says that the Child was so brainwashed that their relationship deteriorated to the point that the Child was volatile and aggressive towards her. Because of this she allowed the Child to dictate the terms as to when he wanted to see her. The Mother says that she saw him approximately once a week. There is a text produced by the Mother purportedly from the Child aggressively demanding that the Mother pay off the Father’s line of credit. This is very unusual. She believes that the Father wrote this as it is not in the Child’s type of speaking. The Father also produced historical handwritten notes by the Child undated purportedly listing grievances against the Mother including a chart. In my view, it is very unusual for a Child to do this unprompted.

[44] There are disputed issues as to the relationship between the Mother and Father and who abused whom which I cannot resolve but which are not required for me to resolve this interim urgent motion.

[45] The current issues stem from the Child’s apparent wish to leave the Father and attend another school.

The Law

[46] The best interests of the child are paramount, and the Children’s Law Reform Act solidifies that any parenting order or contact order must be determined based only on an analysis of the child’s best interests: Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).

[47] The CLRA also 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 interests of the child: CLRA, s. 24(5). It is in the best interests of a child to have a meaningful relationship with both parents and not to be exposed to conflict or family violence: Pereira v. Ramos, 2021 ONSC 1737, at para 26.

[48] However, above all else, the primary consideration that the court must consider is a child’s physical, emotional, and psychological safety, security and well-being which is particularly significant in cases of family violence: Pereira at para 13, CLRA, s. 24(2)

[49] Other relevant considerations contained in the CLRA include:

Factors

24(3) Factors related to the circumstances of a child include,

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

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

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

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

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child.

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

[50] As set out by Justice Kraft, in White v. Kozun, 2021 ONSC 41 at para 174, no single criterion is paramount and “the weighing of each criterion will depend on the circumstances of the particular child.”

Analysis

[51] One of the Father’s arguments is that the Separation Agreement required the Child to live with him in Halton and that the Mother was required to live in Halton Region. He says she has violated this agreement by moving.

[52] When it comes to the best interests of the Child, I am not bound by their agreement. This court is obligated to consider what is in the best interests of the Child. As well, there has been a significant change in circumstances since the Child wanted to live with the Father at the time of the Separation Agreement and there is strong evidence that he no longer wants this.

[53] The Father also argued that the Child was already attending online school at Georgetown. On the record before me this is not clear. Even if it is, and even if Georgetown has some in person classes, I am satisfied that the Child does not want to live with the Father at present and is residing with the Mother of his own volition. The Mother lives in Toronto. It would be highly impracticable and not in the Child’s best interests for him to commute to Georgetown for school.

[54] For the following reasons, I am granting the Mother’s motion that the Child be permitted to register in a school of her choosing (which appears to be Richview), that he be permitted to determine his own parenting time with the Father and Mother, and that the Mother have interim sole decision making authority. These Orders are required in the Child’s best interests for the following reasons:

[55] The child is 17 and of an age and maturity where he should be able to have significant input into major decisions regarding his health, education and the time he wishes to spend with each parent. The Father implicitly acknowledged in the Separation Agreement when the Child was 14 that he had the right and ability to make major decisions. As soon as the Child disagreed, the Father rejected the Child’s ability to make these decisions. In Mikkelsen v. Mikkelsen, [2004] O.J. No. 259, the Court found that the older a child is, the more weight must be given to his or her views and preferences. See also Blair v. Blair, 1995 CanLII 6977 (ON SC), [1995] O.J. No. 2962, Tapley v. Tapley, [1983] O.J. No. 920 (U.F.C.); Hatzioannidis v. Hatzioannidis (1976), 71 D.L.R. (3d) 162; Sharpe v. Sharpe, (1974) 14 R.R.L. 151

[56] While I do not have anything but hearsay evidence from the Mother as to the Child’s wishes, he is 17 years old; if he wished to live with the Father or participate in the Father’s choice of education, he would not have left the Father. Similarly, he would have been able run away from the Mother’s home or voluntarily gone back to the Father’s and attended at the Father’s homeschooling or the local school. He did not and I infer that this is because his views and preferences are in line with the Mother’s motion.

[57] The Mother is prepared to care for the Child and respect his needs and preferences in an age appropriate manner.

[58] The Mother is prepared to support the development and maintenance of Child’s relationship with the Father. In the Father’s affidavit he references a text from her where she says: “She had no plans to effect or ruin [his] relationship with [the Child]”. She has purchased him a phone and he may telephone or see the Father whenever he wishes. Since being in the Mother’s care, the Child has had a conversation with the Father about the school he wishes to attend.

[59] The Child has left the Father’s home from which I infer that there were issues with the Father’s care.

[60] With respect to the Mother’s request for interim sole decision making, it is clear that there is significant conflict which makes it difficult, if not impossible for them to co-parent at this time and this is having an impact on the Child. The Father’s conduct has already prevented him from being registered at school and it is imperative that any decisions in the Child’s best interests not be similarly thwarted by the Father’s conduct.

[61] Courts have repeatedly said that joint custody (when that terminology was used) requires “a mutual commitment between parents to cooperate on matters pertaining to the raising of their child, and an ability for the parents to put their own differences behind those of the child’s best interests”: Giri v. Wentages, 2009 ONCA 606, at para. 10; see also Baker v. Baker (1979), 1979 CanLII 1962 (ON CA), 23 O.R. (2d) 391 (C.A.). This does not exist here.

[62] Taking into account all of the above, the Mother should be given interim decision making authority to ensure that the conflict between the parties does not impact on anything which is necessary for the Child’s well-being.

The OCL

[63] The Mother also requests that the OCL be appointed as the legal representative of the Child pursuant to s. 89(3.1).

[64] When a judge is of the opinion that independent legal representation for a child is required or the judge requires further information concerning the child’s needs in a custody dispute, the general practice is to make an order of referral to the Office of the Children’s Lawyer requesting that it provide services as he or she deems fit: B.(A.C.) v. B.(R), 2010 ONCA 714, at para 1. The required threshold for the involvement of the OCL is low: Flood v. Flood, 2018 ONCJ 822, at para 27.

[65] I note that making a referral does not guarantee that the OCL will agree to act as legal representative or provide any services.

[66] This is a high conflict case. In addition to the above, there are significant allegations concerning the Father’s conduct towards and parenting of the Child including the following:

a) The Child was born with a speech impediment which the Mother tried to address for many years. He was doing better but his speech issues have resurfaced as a result of his homeschooling. She is committed to providing the Child with whatever tutoring, assistance and therapy he requires to heal.

b) The Father has restricted the Child from extra-curricular activities;

c) The Father has isolated and controlled the Child and will not give him privacy;

d) There have been significant conflicts between the Child and the Father about many things including school and vaccination;

e) The Father and his current wife are Jehovah witnesses and they force the Child to pray, attend theocratic meeting twice a week and engage in bible study against his will;

f) The Father has been emotionally abusive towards the Child by not speaking to him if he does not practice the Jehovah witness faith;

g) The Child wanted to attend therapy but the Father would not agree;

h) The Father did not allow the Child normal freedoms for a 16 year old boy;

i) The Father and his wife have told the Child that they are not supportive of education, because according to their religion, it is part of the “evil temporary things of this world”; and

j) The Child advised the Mother that his remote learning while in the Father’s care has left him isolated, affected his mental health and caused him to fall behind academically.

[67] There are also some allegations against the Mother by the Father in the past in respect of her parenting which include:

a. Neglect by not spending enough parenting time with him after the separation;

b. Doing his schoolwork for him when they were together;

c. When they were together she pushed the Child too hard in school and he developed stress because of this;

d. The Mother is suspicious, controlling with narcistic and bullying personality. He gave no particulars;

e. That the Mother would drop him off 5 to 10 minutes after picking him up in the past during parenting time because she wasn’t happy with her parenting time;

f. That they got into a fight on one occasion where the Child was allegedly chased over a busy road by the Mother and her boyfriend; and

g. On one occasion the Mother and the Child were in an argument in a car and the Child grabbed the steering wheel.

[68] While I am not in a position to finally determine these matters, these issues are significant and warrant the involvement of the OCL as it sees fit. Order to go in that regard.

[69] I am also ordering that an urgent case conference be scheduled to address the Father’s parenting time. While the Child does not appear to want to spend time with him, it is accepted that it is important for a Child to have a relationship with his or her parent. Counsel for the Mother suggested on her own that there need to be steps taken to repair whatever the problem is with the relationship between the Child and Father.

Costs

[70] The Mother requests costs in the amount of $10,000. However, she did not provide a bill of costs.

[71] The parties may make written submissions no longer than 3 pages within 5 days on costs.

Papapgeorgiou J.

Date: September 21, 2021