Court File and Parties

COURT FILE NO.: FC545/20 DATE: October 7, 2021 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: J.S.K., applicant AND: T.J.K., respondent

BEFORE: MITROW J.

COUNSEL: Jaret Moldaver and Stephanie Yuen for the applicant Cynthia L. Mackenzie for the respondent

HEARD: September 2, 2021

ENDORSEMENT

INTRODUCTION

[1] The main and significant issue in the motions for interim relief, brought by both parties, centers on the issue of each party’s parenting time regarding the youngest child.

[2] The parties have four children. The applicant seeks primary care of the youngest child, together with various conditions relating to the respondent’s parenting time. The respondent seeks equal parenting time on a week-about basis for the youngest child. In his motion, the respondent also seeks the same parenting order for the second youngest child. Both parties agree to an OCL order.

[3] For reasons that follow, the applicant shall have primary care of the youngest child, with parenting time to the respondent to be subject to conditions as set out in the order below. Also, an OCL order is made and, in relation to the second youngest child, an order is made that his parenting time with each party shall be in accordance with his wishes and preferences.

BRIEF BACKGROUND

[4] The parties were married in 1994 and separated on October 12, 2019. There are four children: D., age 21; N., age 20; Z., age 17; and A., age 13. Z. and A., respectively, will turn age 18 and age 14 in March of 2022.

[5] For convenience, I will also at times refer to the applicant as “the mother” and the respondent as “the father”.

[6] The parties’ residence arrangement in their jointly-owned matrimonial home was somewhat unique. The matrimonial home had a “granny suite” that was attached physically to the main dwelling.

[7] The father’s parents (“the paternal grandparents”) have resided in the granny suite. The mother deposes that the paternal grandparents have lived with them since 2005.

[8] On separation, the father vacated the matrimonial home. Regarding the two youngest children, who were under the age of 18 at that time, they both remained with the mother in the matrimonial home. In addition, the two adult children also remained there.

[9] Effective January 2020, the father moved into the granny suite portion of the matrimonial home with the paternal grandparents. Thereafter, the parties continued to reside separate and apart. The children all remained in the matrimonial home with the mother. The father’s parenting time in relation to the two youngest children post-separation is discussed in more detail below.

[10] The sale of the matrimonial home was scheduled to close on September 2, 2021, being the day that the motions were argued on an urgent basis. The urgency arose as the parents were unable to agree where A. should reside after closing.

[11] An issue was raised by the mother because the father had been able to enter into a rental agreement to rent the matrimonial home from the new owner, a physician, who apparently was buying the matrimonial home as an investment.

[12] The mother’s evidence indicates that she was quite suspicious as to how the father could make an arrangement so quickly with an alleged “arms-length” buyer. The mother agrees that when she called the buyer, that he suggested that both parties submit a rental application for the matrimonial home, which they did, with the result being that the matrimonial home was rented to the father.

[13] As a result, on closing, the paternal grandparents and the mother would be vacating the granny suite and the matrimonial home, respectively, and the father immediately thereafter would enter into the possession of the matrimonial home pursuant to his rental agreement.

[14] The inference, from the mother’s material, is that through some dubious tactics the father and the proposed buyer conspired to give the father preference over the mother in securing a rental agreement for the matrimonial home. There is no evidence to support any such conclusion other than the mother’s unpersuasive speculation.

[15] More importantly, however, the issues raised surrounding the rental agreement are not relevant to the parenting issues before the court.

[16] The time devoted by both parties to these issues in their affidavit material was time that was not well spent.

[17] The mother has rented a house in London. She deposes that her residence is in close proximity to A.’s school and also to the matrimonial home. The three youngest children will have their own rooms and there will be a guest room for D. (who is currently engaged to be married).

[18] The father deposes that their respective homes are about a 15 minute drive away and that A.’s school is a 5 minute walk from the matrimonial home.

THE CHILD Z.

[19] As noted earlier, Z. will be 18 years of age in March 2022. He was approximately age 17 and-a-half at the time the motions were heard.

[20] Z. has told each of his parents that he wishes to reside with them on a week-about basis. However, the mother suspects that he was influenced by the father, given that that is the father’s request in his motion.

[21] On the basis of the evidence before the court, and having regard especially to Z.’s age, I find that there is no need to make any specific parenting time order for Z. other than an order that Z. shall have parenting time with his mother and father in accordance with his wishes. This order, I find, to be in Z.’s best interests.

THE STATUS QUO REGARDING THE CHILD A.

[22] Assessing the status quo in relation to A. at the date of separation is not possible due to the conflict in the parties’ evidence. Both parties present themselves as being primary caregivers of A. prior to separation. Although oral questioning has been held, the court was not referred to any transcripts of evidence on this issue.

[23] While it is a well established principle that the court should not change the status quo on a motion absent compelling circumstances, it may be necessary to focus on the status quo subsequent to separation if there is a conflict in the evidence as to the status quo prior to separation: Fraser v. Fraser, 2015 ONSC 4649 (Ont. S.C.J.), at paras. 16-21.

[24] In the present case, there was evidence that since early December 2020 that the parties had agreed to a regular parenting schedule for A. and Z. as follows[^1]:

a) A. and Z. would continue to reside primarily with the mother in the main part of the matrimonial home;

b) A. and Z. would have parenting time with the father as follows:

i) every Monday and Wednesday from after school until 9:00 p.m.;

ii) alternating weekends on Friday after school until 10:00 p.m.; then on Saturday from 12:00 p.m. until 10:00 p.m.; and on Sunday from 10:00 a.m. to 8:00 p.m.;

c) A. and Z. are at liberty to return to the main part of the matrimonial home during the father’s parenting time in order to complete their homework, to have their own personal space, or otherwise, as they see fit;

d) A. and Z. may have short visits with the father in the granny suite of the matrimonial home during the mother’s parenting time;

e) neither party will make plans for the children during the other party’s parenting time; and

f) the foregoing would also be in addition to the ad hoc arrangements that have been made from time to time for additional visits which will continue.

[25] This status quo was not disputed by the father. During oral argument, the father accepted that that was the agreement, although it was his position that the agreement was premised on the fact that the mother had refused to permit overnight parenting time.

[26] I place little weight on the father’s protest that somehow he was forced into this agreement. At the time, the father had a choice not to acquiesce to the arrangement or accept it. He chose to accept it. There was nothing to prevent the father from refusing to accept the agreement and, instead, bringing a motion in relation to his parenting time as he has done currently.

[27] While this agreement related to both Z. and A., for the purpose of the motions, the relevant portion of this arrangement is in relation to A.

[28] I find that the parenting arrangement made in December 2020 represents the current status quo regarding A. Also, the evidence supports a conclusion that several months after separation, when the father moved into the granny suite in January 2020, that his parenting time with A. was only on an ad hoc basis, as arranged between the parties, until the new arrangement was made in December 2020.

[29] The discussion below includes the extent to which the current status quo should be followed.

MOTHER’S ALLEGATIONS AGAINST THE FATHER

a) Sexual Addiction

[30] The mother uses the term “sexual addiction” to describe the father’s behavior that the father has willingly admitted to in this proceeding, including in his oral questioning.

[31] Setting aside for now whether “sexual addiction” is a proper medical term, the relevant evidence is the facts as to the conduct engaged in by the father.

[32] The mother deposes[^2] that the father was involved in voyeurism, bestiality, visiting strip clubs, masturbating, visiting massage parlours and using pornography secretly.

[33] The mother deposes that the voyeurism involved the mother’s sister (aged 20 at the time), when her sister was living with the parties. The father drilled a hole in the room where the mother’s sister slept to watch her undress.

[34] It was the mother’s evidence further that the father “lusted” after her sister, that he masturbated and fantasized about her and that, on one occasion, her sister found him lying beside her in her bed.

[35] The transcript excerpts filed as exhibits revealed the father’s admission that he drilled the hole to watch the wife’s sister in or about 1997.

[36] The transcript excerpts confirm the father’s evidence that he had viewed pornography and had visited strip clubs, the latter being on eight occasions to the best of his knowledge.

[37] The mother’s affidavit, in relation to bestiality, mentions acts on five occasions involving the father and the family dog, as particularized in her affidavit.

[38] It is noted that to the extent that the father’s conduct, as described in the mother’s affidavit, is not specifically referred to in the transcript excerpts, that the father does not dispute the allegations specifically set out in the mother’s affidavit.

[39] The father admits in his responding affidavit that in 2014 he admitted to the mother that he was watching pornography and that in July 2015 he made the other admissions to the mother about his past conduct.

[40] It is the father’s evidence that he sought counselling and was encouraged to be transparent with the mother. He did so, as he deposed, to be a better husband and to strengthen their relationship. The father deposed that it was necessary to confess before promising never to engage in that behaviour again. He engaged in men’s groups at the church focusing on sexual accountability and he deposes that he learned a lot about himself in the process.

[41] The father is emphatic in his affidavit that he has not engaged “in the behaviours that are listed” in the applicant’s affidavit for “more than eight years”. He argues that the mother has “weaponized” this information in this proceeding; he points out that his disclosure occurred a number of years ago. He attaches as exhibits three letters and a card from the mother, which she sent subsequent to his confession, praising him as a father and husband.

[42] There is no evidence that A., or any of the other children, were involved in the father’s behaviour. The father alleges that his behaviour is historic (the voyeurism, for example, occurring 24 years ago) and that his historic conduct is not relevant today to the issue of parenting.

[43] The father’s evidence that he has not engaged in similar conduct for over eight years is challenged by the mother in her reply affidavit. She deposes that, on at least three occasions after 2015, the father has “confessed” to her that he has continued “to engage in sexually deviant behaviour, including using pornography on his work devices.” The mother adds that, on August 25, 2019, the father confessed to her that he had been lying to her for 25 years and that he had continued to masturbate and lust after young women.

[44] To add some context, it was the mother’s evidence in her initial affidavit that both parties “are devout Christians.” This characterization was not disputed by the father.

[45] The father filed an affidavit from his psychiatrist, Dr. Robert Lockhart, who addresses the mother’s evidence that the father has a “sexual addiction.” Dr. Lockhart deposes that the current Diagnostic and Statistical Manual [DSM-5] contains no scientifically recognized diagnosis of “sexual addiction” and, hence, there is no generally accepted treatment plan for “sexual addiction.” While I accept that evidence from Dr. Lockhart, the mother’s evidence suggests that the mother used that label, as a lay person, to characterize how she viewed the father’s admitted behaviour.

[46] Further, as the mother explains in her reply affidavit, in the fall of 2016, the father acknowledged “in front of 100 peers” at his church, that he suffers from “sexual addiction.” The mother deposes that she had read the father’s script in advance of the presentation which involved “multiple admissions of his sexual addiction.”

b) Evidence that the Father is Grooming A. and Marginalizing her from the Mother

[47] The mother’s evidence, disputed by the father, that he is grooming A. and marginalizing her against the mother is, I find, unpersuasive and little more than speculation.

[48] In particular, the evidence as to what A. allegedly told the applicant’s niece, age 12, who then told her mother (the applicant’s sister), who then told the applicant, as to statements allegedly made to A. by the father, is layered with inadmissible hearsay evidence well outside the ambit of r. 14(19)(a).

c) Mother’s Allegations of Abuse

[49] The mother deposes that their marriage was plagued with abuse – that the father was “emotionally, psychologically, verbally and sexually abusive” to her. The father disputes these allegations entirely.

[50] The mother deposes that she has been receiving counselling through the London Abused Women’s Center since 2019.

[51] Other than a bald allegation, there is very little evidence particularizing the alleged abuse. The three letters and one card from the mother, appended to the father’s affidavit and referred to earlier, ranged from June 19, 2016 to “2019”. These exhibits were replete with adulations towards the father that belie the abuse allegations contained in the mother’s affidavit.

[52] The evidentiary record on the motions is insufficient to support a finding that the father has engaged in abusive conduct as alleged by the mother.

d) The Father’s Mental Health Issues

[53] The father admits to having mental health issues. This is summarized in Dr. Lockhart’s affidavit. On the evidence, including Dr. Lockhart’s affidavit, I find that the father was diagnosed in July 2019 by Dr. Lockhart as suffering from Major Depressive Disorder with anxiety.

[54] The father takes medication as prescribed. Initially, he saw Dr. Lockhart twice monthly but, since January 2021, the appointments have been reduced to approximately once per month.

[55] Dr. Lockhart deposes that the main focus of his work with the father has been in managing his depression and anxiety.

[56] I am satisfied on the evidentiary record that the father is addressing his mental health issues adequately in consultation with Dr. Lockhart.

DISCUSSION

a) Legislation

[57] A divorce has been claimed. The relief sought by the parties is an interim order under s. 16.1(2) of the Divorce Act, RSC 1985, c 3 (2nd Supp).

[58] In s. 2.1, family violence is defined:

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

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property.

[59] The court shall take into consideration only the best interests of the child in making a parenting order or a contact order: s. 16(1).

[60] The primary consideration and the factors to consider are set out in s. 16(2) and (3):

Primary consideration

16(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(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.

[61] Past conduct and parenting are provided for in s. 16(5) and (6):

Past conduct

16(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

Parenting time consistent with best interests of child

(6) 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.

b) Should conditions be imposed on the father’s parenting time?

[62] In her motion, the mother does not seek to restrict the father’s parenting time only to daytime visits, as per the existing status quo. She proposes a two-week cycle, with a midweek overnight in week 1 and, in week 2, a midweek overnight and then from Friday after school to Monday morning on the weekend.

[63] However, the mother seeks to impose a number of conditions to the father’s expanded parenting time that she has proposed.

[64] A significant area of dispute is that the mother seeks to include specific terms in the order that include terms prohibiting the father from keeping any pornographic material or sexual aids in his home or anywhere A. may be and not engaging in voyeuristic behaviours with A. or her friends. The father’s position on the foregoing and other related conditions is that they are not necessary as part of the order, as he has indicated that he agrees not to engage in various behaviours and that he recognizes the inappropriate nature of such behaviours.

[65] The evidence satisfies me that there should be an order for prohibition and possession of pornographic material in locations where A. may be.

[66] In relation to the father not discussing issues with A. regarding his mental health and sexual behaviour, I find that this should be part of the order. The father did admit that he has discussed his sexual conduct with the three oldest children but not with A.

[67] The father’s transcript excerpts reveal that he told Z. about viewing pornography when Z. was age 11.

[68] It would not be in the best interests of A. for the father to engage with her in any conversation about any matters of a sexual nature, especially including his behaviour and the order below addresses those issues.

[69] A number of conditions sought by the mother relate to allegations of grooming A. and marginalizing A. from the mother. I find that none of these conditions are necessary in making an order in the best interests of A.

[70] Another condition sought is that the father engage in therapy sessions with Mr. Len Kushnier, an addiction specialist. The father deposes that he does not know Mr. Kushnier and that he has a good relationship with his current psychiatrist, his current psychotherapist and his family doctor.

[71] Although the mother provides no evidence as to Mr. Kushnier’s background or expertise, Dr. Lockhart noted that Mr. Kushnier’s profile on LinkedIn is that Mr. Kushnier describes himself as an expert in risk assessment for individuals in the criminal justice system, including the risk of recidivism and treatment for perpetrators of sexual and violent crime. The evidentiary record does not disclose any involvement by the father with the criminal justice system.

[72] I find that the evidence proffered is insufficient to support an order that the father should attend for therapy with Mr. Kushnier. However, these reasons should not be interpreted as excluding the potential of an order for therapy, as a condition of the father exercising parenting time with A., if in the future there is better evidence capable of supporting such an order.

[73] Although Dr. Lockhart opines that further therapy is not necessary for the father regarding his sexual behaviour, Dr. Lockhart’s evidence is that the father told him that he had attended strip clubs, massage parlours and had viewed pornography. This was based on the father’s self-reporting and makes no mention of the other behaviours engaged in by the father, including beastiality and voyeurism. Also, Dr. Lockhart relied on the father’s self-reporting that he has not engaged in such conduct for over eight years, which is disputed by the mother.

[74] The mother remains concerned about a potential risk to A. The risk, as alluded to by the mother, would relate to the child’s physical, emotional and/or psychological safety: see s. 16(2) Divorce Act. On the whole, the evidence of the father’s conduct cannot be ignored and is relevant, considering especially A.’s age and gender and the fact that the paternal grandparents no longer reside in the same proximity, the latter factor being viewed by the mother as having enhanced A.’s safety.

[75] That risk can be addressed for now by imposing conditions as set out in the order below.

[76] Although not the subject matter of the order being made below and with a view to assisting the parties, it is suggested that the parties may wish to give some consideration to the appropriateness of jointly retaining a qualified expert who would agree to assess the father as to the extent of the risk, if any, that he may pose, having regard to his admitted behaviour and when that behaviour has occurred, and to provide treatment recommendations, if any.

[77] This type of evidence may assist the parties and the court in resolving the remaining parenting issues in this case.

[78] The mother also sought an order that the father attend the Changing Ways program. However, the evidentiary record, including Dr. Lockhart’s description of the program, is insufficient to make such an order.

c. The Father’s Parenting Time

[79] I have considered the factors listed in s. 16(3) in dealing both with the parenting time and the conditions discussed earlier.

[80] The evidence is insufficient to make a finding that there has been “family violence” as defined in the Divorce Act.

[81] In relation to the child’s wishes and preferences, the father’s evidence is that A. told him that she wants shared time when the parties are living in different homes.

[82] The mother’s evidence is that A. helped pick out some of the new furniture for her room and that she is “very excited” to stay in her new room in the mother’s home.

[83] The evidence regarding A.’s wishes and preferences is somewhat equivocal and it is not independent of the parties. In the circumstances, I am unable to place much weight on that evidence.

[84] The evidence does suggest that each party has a good relationship with the child and is able to meet her needs when in their care.

[85] I take into account the status quo as discussed earlier, but I further take into account each party’s plan. On an interim basis, the father’s plan is a substantial departure from the status quo. I find that the child’s best interests are served by remaining in the mother’s primary care, which is consistent with the status quo.

[86] In relation to siblings residing together, if one or more of A.’s siblings has a week-about schedule, I do not find that A.’s best interests require that she have a similar parenting schedule. There are other factors, as discussed, that outweigh the requirement for A. to have the same schedule as one or more of her siblings.

[87] However, I take into account that the mother’s plan includes weekday overnight visits and overnight visits during alternate weekends. Although the mother’s plan was premised on a number of conditions, some of which I have rejected, I do find that the mother’s proposed parenting time for the father is in A.’s best interests, as reflected in the order below.

[88] The parties have provided a full evidentiary record on the motions. It is not necessary to make the order on a without prejudice basis, except to the extent noted below.

[89] Neither party made any claims regarding decision-making responsibility and, accordingly, the order below does not deal with same.

ORDER

[90] I make the following interim order pursuant to the Divorce Act:

1. The child, A., shall continue to reside in the primary care of the applicant.

2. The respondent shall have parenting time with A. as follows:

(a) week 1: Thursday after school (or after camp if A. is in camp during the summer or other holidays) until Friday morning drop off at school or camp;

(b) week 2: Tuesday after school or camp until Wednesday morning drop off at school or camp and Friday after school or camp until Monday morning drop off at school or camp;

(c) if there is no school or camp, all exchanges shall be at the applicant’s residence and, unless the parties agree otherwise, the pickup by the respondent shall be at 4 p.m. and the return of A. by the respondent shall be at 10 a.m.;

(d) such further and other times as the parties may agree, including during Christmas, March Break, statutory holidays, vacations and other special occasions and the parties are at liberty to amend the respondent’s regular parenting time schedule during any special occasions or vacations; and

(e) the weekday that this order is made shall be deemed to occur during week 2 unless the parties agree otherwise.

3. The respondent shall comply with the following terms and provisions as a condition to exercising his parenting time with A.:

(a) the respondent shall not share any of his issues or history with respect to his mental health or sexual behaviour with A., without the written consent of the applicant;

(b) the respondent shall not keep any pornographic material of any kind in his home or anywhere where A. may be; and

(c) the respondent shall not engage A. in any discussions of a sexual nature.

4. Neither party shall disparage or criticize the other party in the presence of A.

5. Neither party shall discuss any aspect of this court case, or share any information from this court case with A., with the exception of advising A. as to the parenting time she will have with each party as a result of this order.

6. An OCL order shall issue in the standard form regarding the child, A.

7. If the OCL accepts this case, then paragraphs 1, 2 and 3 of this order are without prejudice to the right of either party to bring a motion for an interim variation of paragraphs 1, 2 and 3 after the OCL has served and filed a report pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43 or, alternatively, if the OCL has appointed counsel with a clinical assist, then after the affidavit of the clinician has been served and filed.

8. The child, Z., shall have reasonable parenting time with both parents in accordance with his wishes and preferences.

9. If the parties are unable to agree on costs, then written costs submissions may be served and filed. The costs submissions shall be limited to three typed pages (two for reply), minimum font 12 and double-spaced, with all cases hyperlinked, plus copies of any offers to settle, time dockets and bill of costs. The applicant’s costs submissions shall be filed within three weeks, the respondent’s costs submissions within three weeks thereafter and reply, if any, within one week thereafter. If the parties have agreed to costs, then a letter advising as to same shall be forwarded to the trial coordinator.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: October 7, 2021

[^1]: Applicant’s affidavit sworn August 26, 2021 at paragraph 24 [^2]: Applicant’s affidavit sworn August 26, 2021 at paragraphs 26-28