COURT FILE NO.: FS-21-44464-0000
DATE: 2021-10-13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Stacey Gill, Applicant
AND:
Thomas Gill, Respondent
BEFORE: Kurz J.
COUNSEL: Robert Fernandes for the Applicant:
Harjyot Dhaliwal (Agent) for the Respondent:
HEARD: September 1, 2021
ENDORSEMENT
Introduction
[1] Extreme grief rarely clarifies the mind or acts as the midwife to sound decision making. So it was in this case, after the parties (also described in these reasons as “the parents”) lost a young child in a tragic drowning accident. That devastating loss set the stage for heartbroken recrimination and the extra-legal assumption of sole-parenting rights. Having just lost a sibling, the parents’ remaining child, J, himself still a toddler, suffered the further loss of regular contact with his mother, stepsiblings and home, all while being dragged further into his parents’ conflict. Nothing will ever be the same for this family. But the courts cannot be a vehicle to inflict further damage on the innocent child who is the centre of this motion.
[2] In what was originally an urgent motion, the Applicant mother (“the mother”) moves for a shared parenting arrangement regarding the parties’ three-year-old child, J. After the parents’ younger child, E, died as a result of a drowning accident in the parents’ swimming pool, the Respondent father (“the father”) unilaterally assumed sole care of J. The mother seeks to have the child returned to her care during the week and the father’s care for weekends. She points out that this is the arrangement that best mirrors the parents’ parenting arrangements before E’s tragic death.
[3] The father seeks to maintain the sole parenting arrangement he unilaterally assumed following the death of E; one which allows the mother only supervised contact. This is a position strongly opposed by the local Halton Children’s Aid Society (“HCAS” or “the Society”). Through its child protection worker, Patricia Silverthorne (also described in these reasons as “the worker”), the Society states that J needs to be returned to as much of a pre-accident status quo as possible.
[4] After hearing full argument on September 1, 2021, I reserved my decision. In considering this matter, I concluded that the only objective evidence presently available to the court was offered by Ms. Silverthorne, whose work with this family preceded its tragedy. But Ms. Silverthorne’s evidence came in the form of an unsworn email to the mother’s counsel, dated August 11, 2021, reproduced below.
[5] Beyond the evidentiary issue of relying on an email for evidence, I felt that the worker’s correspondence lacked the detail necessary to assist me in making my decision. The email made no reference to the HCAS interviewing the father or considering his allegations against the mother. Furthermore, I wished to know more about the HCAS’ involvement with this family prior to E’s death. For that reason, I issued an endorsement on September 14, 2021, requesting that Ms. Silverthorne or another HCAS worker prepare an affidavit, setting out:
The reasons that the Society was involved with this family before E’s death;
The basis of the Society’s findings regarding the high conflict between the parents;
The extent that each party cooperated and followed through with Society recommendations;
Greater detail about the investigation in which the HCAS engaged following E’s death;
Whether the Society interviewed the father, the paternal grandfather and/or any other persons with potential evidence regarding either parent’s parenting ability, following the child’s death;
Whether there have been any change’s in the Society’s view of the risks to J or his best interests in the approximately one month following Ms. Silverthorne’s email of August 11, 2021.
[6] While feeling that Ms. Silverthorne’s email lacked the detail necessary to fully decide this motion, I had read and heard enough from both parties to conclude that the father’s self-determined parenting arrangements were not in J’s best interests. I stated in my September 14, 2021 endorsement that:
The father did not act well in unilaterally assuming sole parenting rights. If he felt that it was so necessary to exclude the mother in the manner that he did, he should have first come to court to request an order.
From the information that I have received from the Society, I am not convinced that the father’s request for supervised contact between the mother and the child is in his best interests. To the contrary. I believe that the child can be safely cared for in the mother’s care. At this point, on the evidence before me, I cannot find that E’s death is anything but a tragic accident. I also cannot find that the father acted appropriately in unilaterally assuming sole parenting control of J.
But until I hear from the Society, I cannot fully consider the mother’s plan either.
[7] For those reasons, I made an interim-interim parenting order, pending this decision, as follows:
The mother shall have day parenting time with J, unsupervised and at a place of her choosing, including the matrimonial home, three times per week from 9 am – 7 pm. This arrangement shall commence immediately. If the parties are unable to agree on dates or other arrangements, they may arrange to appear by Zoom before me, at which time I will determine those arrangements. To be clear, I wish the three times per week arrangement to commence this week, such that the mother will have three days of parenting time this week.
The parties will share decision making in regard to all major issues, save J’s schooling. I assume that he is registered in a nursery programme in Toronto. Once I hear from the HCAS, I will reconsider whether that unilateral arrangement shall continue or whether I should adopt the mother’s plan or some other variation of either party’s plan.
At this time, I will not accept any further evidence in this motion, save the affidavit of the Society, without leave.
The mother shall not leave J. unsupervised at any time while he is in her care.
The matrimonial home swimming pool will be drained and covered before J returns to that home.
Counsel for the mother shall forthwith serve a copy of this endorsement to Dianne Skrow, chief counsel of the HCAS.
Once I receive the HCAS affidavit and consider its contents the terms of this endorsement and make an interim parenting order.
[8] I also left open the door to requesting further submissions from the parties. After receiving Ms. Silverthorne’s affidavit of September 21, 2021 (for which I thank the Society for its expeditious response to my endorsement), I offered the parties the opportunity to provide me with any responding submissions. I received written submissions from the father but not from the mother.
[9] For the reasons that follow, I terminate the father’s unilateral assumption of parenting arrangements as well as those set out in my September 14, 2021 endorsement and grant the mother’s motion, upon the terms set out below.
Background
[10] The parents were married on January 27, 2018. Following a great deal of conflict, they separated at some point between July 18 - 20, 2021[^1].
[11] The parents had two children together, J, who is three years old and E, who was approximately four months shy of her second birthday at the time of her death. E died at the McMaster Children’s Hospital on July 31, 2021. The mother has two children of previous relationships; J, who is nineteen, and A, who just turned five.
[12] The mother is an educational assistant with the Niagara District Catholic School Board. Until very recently, the mother was on a maternity leave that began when J was born. Between January 2018 and the date of J’s birth, she was on sick leave, caring for her father (who died in June 2018). Until E’s death, she was the primary caregiver of the parents’ two children as well as two of her own. However, at some point before the parents separated, the father began to take J to his parents’ Toronto condo each weekend.
[13] The father is a transit driver for the Toronto Transit Commission. He works both day and night shifts. The mother says that when the father works night shifts, he sleeps for most of the day.
[14] The parents resided in the matrimonial home (“the home”) for only a short time before the father left the home. He did so following an incident with the mother or about July 18, 2021. He then moved into his parents’ condo in Toronto, leaving the mother with all four children, three of them under five years old (subject to taking J to his parents’ condo on weekends). Before the parents physically separated, the level of conflict between the parents was so great that a women’s support organization contacted the HCAS to express concern with the level of conflict in the home. That is when the HCAS began its involvement with this family.
[15] E’s accident occurred shortly after the parents separated, on July 25, 2021. That day the mother was home with A and E. J was not home. While the evidence does not say where the child was, I assume that he was in the home of his paternal grandparents, since July 25 was a Sunday. That day, five-year-old A snuck out of the house into the backyard of the home, which contained a swimming pool. E followed him and fell into the home’s inground pool. While E did not immediately die, she was rushed to McMaster Children’s Hospital. She died there of her injuries six days later, on July 31, 2021.
[16] While E was in the hospital, J stayed in the care of his paternal grandparents, who brought him to the hospital each day.
[17] The day following E’s death, the mother came to the paternal grandparents’ condo to pick up J. The paternal grandfather said that he would not release the child to the mother until the father arrived. He refused to allow her to even see the child. Although the mother called the police for assistance, they did not intervene. From that time forward and despite the mother’s opposition, the father assumed the sole right to parent J. He had no court order allowing him to do so. He felt entitled to so this because he solely blames the mother for E’s death.
[18] At few days later, the parents retained counsel. They were only able to agree that the mother have supervised contact with J, with that contact supervised by the father. The mother was not even allowed to return with J to the home during her contact with him. The father limited her visits to between 3 – 4.5 hours. While this arrangement was on consent, that consent was not fully voluntary. It arose from the father’s extra-legal assumption of sole parenting rights. Until a court could intervene, the father had J in his family’s exclusive care and would only concede the mother’s right to contact the child on his terms.
[19] Before E’s death, J attended a preschool programme at Trail Ridge Montessori School in Grimsby, Ontario. The mother brought the child to and from that preschool. The mother says that J spent most of the day with her, other than preschool. He actually slept beside her each night. She had arranged all of J’s service providers.
The Father’s Derogation of the Mother
[20] The father has much to say to derogate the mother. Much of what he says about her is irrelevant and in the context of this motion, offensive. While attempting to show her parental unfitness, he alludes to her alleged infidelity to her previous husband and her alleged sexual promiscuity. His motion factum speaks to her “family [having] multiple instances of drug abuse, overdoses, and suicide attempts”, as if tarring her family will diminish her in the eyes of the court. He continues, asserting that the mother “herself was physically abused as a child” as if that explained E’s death.
[21] The father goes on to speak of the mother’s alleged instability, presumably arising from her history of abuse by her own mother. He then relies on the claims of the very person he accused of abusing the mother (i.e. the maternal grandmother) regarding the mother’s alleged irresponsibility and drug use 25 years ago, at age 16. He continues, lamenting that:
[The mother’s] family were right and they warned me, but I went ahead and continued dating [her].
[22] I fail to see how this account about the mother’s teenaged behavior, a quarter century ago (she is now 41), advances the court’s understanding of anything but the depth of the father’s hostility towards the mother.
[23] The father continued with this line of attack, writing in his submission in response to Ms. Silverthorne’s affidavit:
[the mother] does suffer from past emotional trauma with respect to her own upbringing which continues to impacts [sic] her emotional function and day to day functioning;
[The mother] does not have support from family or other individuals. [The mother] does not have a good relationship with her mother. She only has one friend as a support who is terminally ill and her brother has a traumatic brain injury.
[24] While he personally attacks the mother regarding her own past trauma, he seeks the sympathy of the court, with his lawyer writing:
[the father] continues to live with the grief that, had he stayed for five (5) more days, his daughter may still be alive today. [the father] cannot take another chance with his only surviving child, [J].
[25] I can understand a spouse’s desire to lash out at their former partner after a high-conflict separation, not to mention the tragic loss that this whole extended family has experienced here. But the issues raised here are too important to be sullied by such snide talk, offered in the guise of “context”.
[26] As I wrote in Alsawwah v. Afifi, 2020 ONSC 2883, at para 1:
The famous American trial lawyer, Louis Nizer, once wrote that "[w]hen a man points a finger at someone else, he should remember that four of his fingers are pointing at himself." This aphorism, pointing to the ubiquity of human foible, is one that more lawyers who pride themselves on their aggressive family law advocacy, should take to heart.
And at para. 108:
Evidence regarding a former spouse's moral failings is rarely relevant to the issues before the court.
Nor are we swayed by rhetoric against the other party that verges on agitprop.
Our decisions are not guided by concerns of marital fidelity. A (non-abusive) partner can be a terrible spouse but a good parent. Everyone is supposed to know this, but all too often I see litigants raise these issues for "context".
Relevance matters. If the court is dealing with, say an issue regarding parenting, allegations of a party's failures regarding collateral issues, say their stinginess or the paucity of their financial disclosure, are irrelevant and counter-productive. They do not reveal the dark soul of the other side or turn the court against the allegedly offending spouse. Rather, they demonstrate that the party or their counsel is unable to focus on the issue at hand. Often those materials backfire leading the court to place greater trust in the other side.
[27] My remarks in Alssawah are particularly apposite here. The father’s anguish at the loss of his child is both understandable and worthy of the court’s compassion. But his comments about the mother, who suffered an equal loss, only diminish his credibility in the eyes of the court. They tell the court that he is so consumed by his unchecked animosity towards her that he appears willing to say just about anything to diminish her in the eyes of the court, no matter how remote or irrelevant. His opinions regarding the mother cannot be relied upon.
The Father’s Evidence of the Mother’s Parenting
[28] Moving on to his evidence about the mother’s parenting, the father says that she has a history of leaving the children unattended and that she allowed A to bully both J and E. The father adds that he was against buying a home with pool, which he says that he previously described as a “death trap”. Yet, he does not deny that, allegedly feeling that way, he agreed to buy the home. In fact, he lamented to the HCAS worker, Ms. Silverthorne, that he purchased her a “million-dollar home” but that it still was not enough for her.
[29] The father lived in the home with the mother and three young children, knowing of the perils of its swimming pool for young children. Yet he left it to her to remediate any problems with the home and the safety of the pool, all while caring for three very young children. He then chose to leave the mother with the children in the home with that pool and whatever safety problems it had. I will have more to say about some of these points below.
[30] The father stated that he was acting reasonably when he unilaterally assumed parenting rights to J while limiting the mother’s contact with the child. The father asserts that he was only doing this to protect the child, not punish the mother. Besides, J likes it at his parents’ condo. The child should be allowed to live there, with supervised contact to continue, at least until a full assessment is completed. As a demonstration of his flexibility and willingness to allow maternal contact with J, the father offers to hire a nanny to supervise the mother’s contact with J.
The Father’s Collateral Witnesses
[31] The father has provided the court with a number of affidavits from collateral witnesses. Those deponents bespeak the mother’s alleged instability or lax parenting, all in juxtaposition to the father’s responsible care. The authors of those affidavits are Raoul Coleman, a close friend of the father (who has little relevant to say about the mother’s parenting), David Crosier, an employee of the paternal grandfather (who spoke about an incident at the home for which the mother has a different account), and Travis Czoka, another friend of the father (for whose children the mother actually offered babysitting assistance from time to time. Both parents are godparents to one of Mr. Crosier’s children).
[32] The father also tendered an affidavit by his father, the paternal grandfather. The grandfather deposes that he attempted to get close to the mother. He states that he assisted her, both financially and emotionally. But he and his home are part of the father’s plan to solely parent J. He fully supports his son in a plan that would substantially exclude the mother from J’s life. He went so far on his son’s behalf as to refuse to allow the mother to see her own child, J, when she came to his home to do so. I cannot say that he is an objective observer or that I can rely on his evidence without corroboration.
Halton Children’s Aid Society Investigation and Opinions
[33] The only independent evidence tendered in this motion comes from HCAS child protection worker, Patricia Silverthorne. The mother originally included an email by Ms. Silverthorne to her lawyer as an exhibit to her affidavit. In that email, Ms. Silverthorne wrote:
In response to your inquiry, dated August 11, 2021, I confirm that the Society became involved with the Gill family prior to E's tragic accident and passing, due to concerns that the children were being exposed to adult conflict. This investigation is not yet concluded.
With regard to the Society's investigation into the circumstances surrounding E's passing, the Society is awaiting the completion of the police investigation.
In the meantime, I can advise that the Society has no concerns regarding Ms. Gill caring for [J] unsupervised in the family home. The Society believes it is in [J]'s best interests to return to his mother's care (his primary caregiver), where he can have regular access with his older siblings and his familiar routines. Ms. Gill has been fully cooperative with the Society since the Society became involved and I have had the opportunity to meet with Ms. Gill twice, as well as having had multiple telephone conversations with her. While Ms. Gill is understandably distraught over the tragic loss of her daughter, she has remained focused on the welfare of both boys and has sought counselling for them when possible. Given [J]'s young age, and his lack of understanding of what has happened, in the Society's view it is critical that [J]'s life return to some semblance of what it was prior to his sister's accident and passing. I do not have any concerns at this time regarding Ms. Gill's mental health or her ability to respond to [J]'s emotional or instrumental needs.
Ms. Gill has taken steps to ensure that the children cannot access the pool area. There are now appropriate child safety locks on all doors leading to the pool area, which have been viewed by the Society. It is the Society's position that both parents were responsible for their children's safety by ensuring that there were child safety locks on the doors and gate leading to the backyard/pool area, as both parents had been living in the home and were aware of the concerns raised by the Bylaw Officer. At this time, the Society does not hold Ms. Gill solely responsible for E's tragic passing.
[34] As set out above, I felt that I required more information from the HCAS regarding its investigation of E’s death and recommendations regarding J. That is why I requested an affidavit from the worker.
Affidavit of Patricia Silverthorne
[35] The Society responded to my request with the affidavit of Ms. Silverthorne September 22, 2021. The following is a summary of the most salient information set out in that affidavit:
The Society first became involved with the parents and their family after a referral from Halton Women’s Place (“HWP”) of July 13, 2021. The mother had reported verbal and physical abuse by the father. She referred to an incident in which he reached over and threatened her in a car three weeks earlier. She added that he was controlling as well as verbally and emotionally abusive to every day.
Ms. Silverthorne was assigned to investigate.
Ms. Silverthorne arranged with the mother to meet on July 19, at a time that the father would be home. At that time, the mother told Ms. Silverthorne that the father would be unhappy about HCAS involvement.
The mother stated that the father is a TTC driver, while she had been caring for the children “full time”.
When Ms. Silverthorne arrived at the home, the father was absent. The mother indicated that the father had been out drinking the previous evening and was sleeping it off at a friend's home. I note that the mother said nothing about the incident that occurred the night before, discussed in greater detail below, when the police were called.
A, J, and E were all at home. Ms. Silverthorne noted that “the boys are quite active – mom is good interacting with them, and they seek her out for comfort”. While it was difficult to interview the three young children, the worker felt stated that they did not disclose any child protection concerns.
The mother reported “feeling overwhelmed by the family's recent move, COVID, being the primary caregiver for three young children (4,3,1), and ongoing conflict with [the father]”. The mother described the father as “‘hot headed’ and quick to anger”. She also described him as “verbally and emotionally abusive.”
The mother also described her own mother as emotionally and verbally abusive towards her during her childhood. Her father “was largely physically and emotionally absent from the home due to his employment.” The mother’s current relationship with her mother was fraught. She had not seen her mother for three years but was still adversely affected by her mother’s behaviour. She reported that she was currently in counselling, as she had been in the past.
The worker commented that the parents’ relationship “has always been tumultuous”. The mother indicated that the father accuses her of being mentally ill. He calls her “terrible names”. They started couples counselling, but the father withdrew. The mother continued on her own. She reported that her relationship with the father was over because the father “won't change his behaviour”.
The mother told the worker that the family had just moved into the home three weeks earlier. The parents had “waived the home inspection and are now faced with major repairs that are going to be very expensive. This has added a lot of stress.”
The mother felt that one cause of her discord with the father is the fact that they argue about parenting. She felt that the father treated his own children differently than her son, A. She felt that he was a very strict parent, with that style arising from his time in the military. That being said, he did not use physical discipline with the children.
The mother denied any physical violence between herself and the father. She did not believe that the children overheard their arguments but could not be sure.
She has a good relationship with her 19-year old daughter.
The mother reported one close friend, but he is terminally ill. Her maternal uncle is supportive but has his own cognitive challenges arising from a traumatic brain injury. She had reached out to the HWP hotline before and would do so again if needed.
[36] Following her interview with the mother, Ms. Silverthorne reviewed the police report of the incident the night before. It indicated that the police had intervened at the home after the father arrived home, intoxicated. Ms. Silverthorne contacted the mother to ask why she had not disclosed the police attendance the previous evening. The mother stated her concern that the father would blame her for the police and CAS involvement. She did not know where he was or when he would return.
[37] When Ms. Silverthorne spoke to the father, after E’s accident, he described the mother as “emotionally unstable” and suffering from an undiagnosed and untreated mental illness. He complained of her “wild mood swings towards him and the children”. He asserted that their arguments were primarily about the children’s safety. He claimed to be “always reminding” the mother to ensure the safe storage of cleaning supplies.
[38] Ms. Silverthorne offered her opinion that the relationship between the parents was “dysfunctional and abusive”.
[39] The worker reported concerns that had been expressed to her by three doctors and a social worker at McMaster Children’s Hospital, where E had been taken after her accident. Those professionals, Ms. Silverthorne reported, were “disturbed” by the father and his family’s treatment of the mother in the hospital. While the concerns relayed to her were serious, her evidence about them are double hearsay and cannot be relied upon for the truth of the facts asserted in this motion.
[40] There was no joint HCAS/police investigation, as the initial police investigation determined that E’s death was likely an accident. She understands that the police findings are forwarded to the homicide unit before a case is closed.
[41] Ms. Silverthorne spoke to the father twice after E’s hospitalization, once on July 30, 2021, while E was still alive, and a second time, on August 28, 2021, almost a month after her death. In their first conversation, the father solely blamed the mother for E’s accident. He claimed that she wanted to pull the plug and kill the child. He asserted that he was always concerned about her level of supervision of the children and her mental health. He spoke of always telling her to put her cleaning products away.
[42] The father denied that the situation that the mother had experienced was stressful. He said this even though the parents had waived the home inspection before closing their home deal and moving into the home just a few weeks earlier; leaving the mother solely responsible for making repairs to the home while caring for three young children. He added that she decided to replace part of the fencing around the home’s pool. As stated above, he complained to the worker that he had purchased the mother a “million-dollar home” but that it still was not enough for her.
[43] The father blamed the police attendance at the home on July 18, 2021 solely on the mother. He said that he came home to find A picking on E and then got into an argument with the mother. The mother’s adult daughter got into his face and started yelling at him. He said nothing about his drinking that night.
[44] The father described the mother as “mentally unwell”. He suggested that the worker contact her family to see how “crazy” she is. He added that he wanted nothing to do with his five-year-old stepson A, now that he and the mother were separated.
[45] During the worker’s second interview with the father, he continued his theme about the mother’s inadequate parenting. He stated that all of his fights with the mother were about children’s safety and her failure to properly watch the children. He said that she would let the children run on the street. She failed to intervene as her older son, A, “beat up [J] every day”. He took J to his parents every weekend, just to keep him safe. He referred to the mother’s “mood-swings”. He said that he worked nights just to keep the children safe from her.
[46] When asked about the July 18, 2021 incident when the police were called to his home, the father admitted that he had “a couple of drinks” but claimed not to have been intoxicated. He claimed that when he came home, he discovered A “picking on” E in her crib. After separating the children, he attempted to discuss the incident with the mother, but she yelled at him. Her daughter then called the police. He left home and did not return.
[47] The worker then asked the father what may be the critical question for this court’s consideration of his narrative: Why did he leave home and never return if he was so concerned about the children’s safety at the hands of the mother? His answer was that he had had enough of the mother’s “instability”. He was also concerned that she would make false reports about him. He said that he had been assaulted by the mother, including an incident where she tried to strike him while he was driving with the children in the car,[^2] but that he never assaulted her. His answer failed to explain why he left the children with the mother if she demonstrated such “instability”.
[48] Before A was allowed to return home after E’s death, the CAS requested (and likely insisted) that locks be installed on the doors leading to the pool area/backyard and to the gate leading to the backyard/pool. The worker reported that the mother complied.
[49] After reviewing all of the statements offered both to it and the police, the HCAS determined that E’s drowning was a tragic accident. Ms. Silverthorne stated that the police arrived at the same conclusion. I have no evidence to the contrary.
[50] Ms. Silverthorne explained why she felt that the father had an equal role in the failure to safeguard the home’s swimming pool, writing:
The family had recently moved into a new home and chosen to waive the home inspection, which would have identified the issues related to the fence around the pool, etc. The family was not familiar with owning a pool and was pre-occupied with making a number of repairs/alterations ordered by the bylaw department on a short deadline. Ms. Gill reported that she was attempting to do most of the repairs herself while caring for the children. Mr. Gill confirmed this somewhat when he told me that it was Ms. Gill’s decision to make alterations to the fence around the pool.
[51] Despite the father’s critical appraisal, Ms. Silverthorne is very positive about the mother’s stability and ability to focus on the wellbeing of her surviving children, writing:
In all of my conversations and meetings with Ms. Gill, I have not witnessed or heard any signs that would suggest Ms. Gill is suffering from an untreated mental illness. Rather, I have witnessed a very resilient mother who has remained focussed on the wellbeing and happiness of her remaining children.
[52] The worker adds that the mother has now moved to a new home in St. Catharines. It has no swimming pool. She has also returned to work. The father reported to the worker that he has yet to return to work.
[53] In her conclusion Ms. Silverthorne supports the mother’s plan, writing:
I continue to believe that it is in [J’s] best interests to return to his mother’s care and for her to be his primary caregiver. Ms. Gill has demonstrated that to the Society that she is emotionally stable (she remains in counselling, which the Society views as a strength) and is emotionally available and responsive to her children’s needs. She has consistently maintained that she wants J to maintain a loving relationship with his father and paternal grandparents, despite how they have treated her. This demonstrates to me that Ms. Gill can and is putting her child’s interests first and putting her own feelings regarding Mr. Gill and his family aside.
[54] It does not appear that Ms. Silverthorne spoke to the father’s collateral witnesses. She does say that “[t]he Society reviewed the police interviews of Ms. Gill and other witnesses. I also interviewed Ms. Gill and her statement to me was similar to her police statement.” But while Ms. Silverthorne did not interview the father’s collateral witnesses herself, she stated that she is aware of an interview of the father, his parents, and his best friend by a Toronto CAS worker. She states that they “shared their ongoing concerns regarding Ms. Gill’s ability to safety parent the children.” Thus, she appears to be aware of the concerns that were expressed to the Toronto CAS.
Applicable Law
[55] In two recent decisions, I dealt with many of the issues raised in this motion. In Phillips v. Phillips, 2021 ONSC 2480, I wrote about the general law that applies regarding the court’s parenting decisions following the March 2021 amendments to the Divorce Act, S.C. 2019, c.16. I wrote:
45 The applicable law is the Divorce Act, S.C. 2019, c.16, whose parenting amendments came into legal effect on March 1, 2021. Under the Divorce Act, the court is required, in determining the child's best interests, to "give primary consideration to the child's physical, emotional and psychological safety, security and well-being", while considering "all factors related to the circumstances of the child": ss. 16(2)-16(3).
46 The factors that relate to the child's best interests are set out in s. 16(3) as follows:
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.
47 The list of best interests factors is not a checklist to be tabulated with the highest score winning. Rather it calls for the court to take a holistic look at the child, her needs and the people around her.
48 The Divorce Act also expressly directs the court to consider family violence in its many manifestations as a factor in determining parenting. I am aware that the mother alleges such violence in an emotional and verbal context. She also says that the father raised his voice to her twice in front of the child before she moved with the child. Any allegations of family violence must be taken seriously and not dismissed peremptorily. However here, based on the evidence presently before the court, I am not convinced, for the reasons set out above, of the credibility of those allegations. There is simply no corroborative evidence other than the paternal grandfather's broad and unparticularized assertions.
49 The principle that a child should have as much contact as possible with each parent remains a part of the court's best interests considerations. However, the Divorce Act's previous reference, in the heading to the relevant section, to "maximum" contact has been removed. However, the operative terms in the section remain the same.
50 Whether "as much contact as possible" or "maximum", the notion of ensuring that a child enjoys as much contact with each parent as is consistent with their best interests remains an important consideration for the determination of their parenting time.
51 The present provision, s. 16(6) states:
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.
52 The previous provision stated:
Maximum contact
(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
53 Whether this change in the heading is merely semantic remains a point to be argued. The point was not raised before me. However, I note that in Rigillio v Rigillio, 2019 ONCA 548, the Court of Appeal for Ontario found that a court's failure to advert to what was then the maximum contact principle represented an error in law. Any judge who departs from the principle must provide reasons for doing so. Implicit in that principle is the notion that those reasons must be in a child's best interests.
[56] In Van Ruyven v. Van Ruyven, 2021 ONSC 5963, at paras. 45-48. I added the following regarding the maximum contact principle under the previous iteration of the Divorce Act:
45 In Knapp v. Knapp, 2021 ONCA 305, the Court of Appeal for Ontario strongly implied that the law set out in Rigillo remains in place. As Benotto J.A. wrote for the court at para. 31, just before adverting to the relevant former and current provisions of the Divorce Act,
As this court said in Rigillo v. Rigillo, [2019] O.J. No. 4088, 2019 ONCA 647, 31 R.F.L. (8th) 361, at para. 13, the maximum contact principle does not necessarily require equal parenting time.
46 At para. 34, Benotto J.A. went on to set out the principle that the balance between maximizing a parent’s contact with a child and the child’s best interests requires:
a child-focused approach to achieving as much parenting time as possible with each parent is the objective of the maximum contact principle. It may end up being equal time. It may not. Each family is different, and the principle is a guide set out to benefit children.
47 In W.H.C. v W.C.M.C., 2021 ONCJ 308, Sherr J. of the Ontario Court of justice set out the following additional principles to guide the determination of parenting decisions when there is a request for maximal or minimal parenting time, writing:
71 An equal-parenting time plan requires a high level of communication and coordination between the parents, particularly when the child is very young. The parents will have to coordinate schooling, medical appointments and extra-curricular activities for the child. This should not be ordered where the evidence indicates that implementing such a plan, given the dynamics between the parties, would be an invitation to conflict and chaos, and would be destabilizing for the child. See: L.B. v. P.E., 2021 ONCJ 114; L.I.O. v. I.K.A., 2019 ONCJ 962.
72 The party who seeks to reduce normal parenting time will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. M.A. v. J.D., [2003] O.J. No. 2946 (OCJ).
73 The person seeking supervised parenting time for the other parent bears the burden of establishing that supervision is necessary. See: Klymenko v. Klymenko, supra.
48 In addition, as Sherr J. pointed out at para. 74, the court’s powers under the Divorce Act offers a broad canvas for parenting orders that respond to the individual needs and interests of a child and the abilities of their parents to meet them. As he wrote:
the court's powers under the Act are broad and purposive. It 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 it considers appropriate to secure the children's best interests. See: S.S. v. R.S., 2021 ONSC 2137.
[57] In Van Ruyven, I cited my comments, originally made in Phillips, which in turn cited previous authorities about the need to discourage the tendency to self-help parenting remedies as follows:
Self Help
49 In Phillips, cited above, I wrote of the importance of discouraging parents from arrogating the right to self help regarding parenting in anything less than urgent circumstances. There, I set out the applicable authorities as follows:
61 In Rifai v. Green, 2014 ONSC 1377, Pazaratz J. decried self-help parenting measures. He pointed out that one parent does not start out with higher status than the other:
25 The starting point, of course, is that at the outset both parents are presumed to have equal status, equal rights, and equal authority over decisions in a child's life. In the absence of a formal agreement or court order, neither parent has the right to unilaterally impose major changes in a child's life. Neither parent has the right to unilaterally interfere with or impede the other parent's contact or role in the child's life.
62 He described the parent who engages in self-help tactics that belie a child's best interests as raising questions about the new status quo and the moving parents' own parenting skills, writing:
22 A parent who engages in self-help tactics despite the best interests of the child will generally raise serious questions about their own parenting skills and judgment. In many cases, courts conclude manipulative, selfish or spiteful parents simply can't be entrusted with custodial authority they would likely abuse. Izyuk v. Bilousov (supra); Clement v. Clement 2010 ONSC 1113 (SCJ).
63 Fallis v. Decker, 2013 ONSC 5206 is another case in which Pazaratz J. considered the tactic of mobility self-help. In that case, the mother moved and then came to court arguing a new status quo. Pazaratz J. would have none of that argument. He described her tactics as "brinksmanship". He asserted at para. 27 that "[p]arents take unilateral action at their own peril. The court simply cannot sanction self-help in circumstances where the best interests of children may potentially have been jeopardized." He added that "[p]articularly at an early stage of litigation, the court should be reluctant to allow any disruption of the status quo."
64 In Arbitman v. Lee, 2021 ONSC 315, Monahan J. took a similar approach to the problem of self-help, even when confronted with that behaviour from a primary caregiver. He wrote of the need to discourage that kind of behaviour as follows:
39 First, the current arrangements whereby the Applicant's time with the children has been severely restricted is purely de facto rather than de jure, resulting from unilateral actions taken by the Respondent rather than as a result of a court order. Self-help measures are to be discouraged, and resort to the courts for permission is indicated where a parent's right of access to children is to be restricted. If the current restrictions on the Applicant's access to the children were to serve as a benchmark or starting point for determining the parenting schedule going forward, the effect would be to reward rather than discourage the Respondent's resort to self-help.
65 Here, the mother attempted to unilaterally create her own new status quo, brazenly asserting that her unilateral right to remove the child was "non-negotiable". She may have done better by making it negotiable.
Analysis
[58] When a parent is called upon to bury a child, the natural order is disturbed. It should be the other way around. When the two parents of that child are engaged in high conflict, it is very easy to simply blame the other for the extraordinary loss. Here, the father is not open to the notion that E’s death was simply a tragic, senseless accident. Nor is he able to accept that the mother is anything but solely to blame, let alone that he may have had some responsibility for the state of affairs that led to E’s death.
[59] The father berates the mother for her alleged instability, mental health, and inadequate parenting. Yet he jointly purchased a home and pool with her just weeks before he walked away from her, their children, and the home. When the father left, he knew everything relevant to her parenting ability that he knows today, other than the events that would occur on July 25, 2021. He knew that she had three young children in her exclusive care (other than weekends that he took J away to his parents’ home). He knew as well that the mother and children were new to the home, its swimming pool, and its surrounding area. He further knew that repairs were required to the home, both of them having foregone a home inspection. Yet he had left her with the sole responsibility to make any necessary repairs to their newly purchased home, all while parenting three young children.
[60] Yet he left in haste and without warning. He did so after having what he described as “a couple of drinks” and then initiating an argument with the mother about his view of her parenting. He did so without going to court or the CAS to say that it was unsafe to leave his two children with the mother. Clearly, he did not feel that it was necessary to do so.
[61] If the father felt that J was unsafe in the mother’s care he should have gone to court rather than assume the sole right to parent the child.
[62] In his materials, the father criticized the mother for taking on the work of fencing around the pool before E drowned. Yet, as Ms. Silverthorne points out that the fault for the lack of a proper locking mechanism around the home’s swimming pool falls to both parents, as both were responsible for their home. The issue of a lock around the pool is now moot as the mother has moved out of the home.
[63] The only independent evidence offered in this motion is that of the Ms. Silverthorne of the HCAS. Her involvement with this family predates the loss of E, so she has a context within which to offer her observations and opinions. After the drowning accident, the worker interviewed both parents. She is aware of the details of the police investigation. She clearly does not accept that the father’s allegations of the mother’s instability and inability to parent her children are true. She had no child protection concerns regarding J’s return to the mother’s care. In fact, she felt that such a change would be in the child’s best interests. Having said that, she does not question the father’s ability to parent J either.
[64] The father makes very serious claims against the mother and her mental health. The evidence of the only objective observer, a child protection worker, belies his claims. So too does his own behaviour, including the fact that he chose to leave the children with the mother (although J was not in her care on the date of the accident).
[65] While the safety of J is a central concern in this motion, Ms. Silverthorne’s evidence reassures me that J is safe in the mother’s care. Further it is in his best interests to return to whatever semblance of his pre-accident parenting is possible.
[66] One further concern that the father’s conduct, evidence, and submissions raise is the level of vituperation he directs towards the mother. He is fixed in his extremely negative and dismissive view of her. Despite being represented by a very experienced lawyer, he has shown himself to be capable of saying almost anything, even in his court materials, to disparage her. After E died, he felt entitled to unilaterally dismiss her from her primary parenting role with the child. Bereft of authority, he even prevented her from seeing her child alone. That state of affairs did not change until the mother moved and this court intervened. In short, the father’s own materials serve to confirm the mother’s allegation of his verbal and emotional abuse. His conduct after E’s accident confirm her allegations of his controlling behaviour before that accident.
[67] In the face of J’s unimaginable loss of his sibling, one important factor that I must consider the willingness of each parent to promote J’s relationship with the other parent. If the father is unable to moderate his comments to the court, I fear what he may be saying to and doing with the child in private, regarding the mother. I am concerned that if the father’s plan were adopted, J’s relationship with his mother and remaining siblings would be seriously eroded. Having lost so much already, J cannot afford that additional loss.
[68] On the other hand, the mother’s position in favour of shared parenting, and her forbearance from reciprocating the father’s rhetorical excesses, coupled with the opinions offered by Ms. Silverthorne, all offer me comfort about the maternal plan for J. I am further reassured by the evidence that she has been able to maintain a very civil parenting relationship with A’s father.
[69] In setting out an interim parenting schedule, I generally accept the schedule offered by the mother. However, my decision comes more than a month after this motion was argued. That means that J has been out of the care of his previous primary caregiver, other than the supervised contact allowed by the father and the day contact that I granted to her, as set out above for over two months at this writing. While the mother did not request any makeup time, I believe that J will require some time in his mother’s exclusive care in order to reorient himself to that care and the fact that two separated parents are caring for him.
[70] Accordingly, I exercise my jurisdiction to make orders in the best interests of the child, even if they are not requested by either party: Richardson v. Richardson, 2019 ONCA 983, Laliberte v Jones, 2016 SKQB 192, Spadacini-Kelava v Kelava, 2020 ONSC 5661, at paras. 122-30. Relying on that jurisdiction, I order a two-week period of exclusive maternal care for the child, punctuated by the father’s time with the child for the next two weekends, from Friday at 5 pm – Saturday at 5 pm. After that two-week period, the parents will operate under the new schedule set out below.
Independent Assessment/Investigation
[71] I agree with the father that there should be a form of assessment, whether Children’s Law Reform Act s. 30 or a clinical investigation by the Office of the Children’s Lawyer. However, that will take months, at best. In the meantime, J needs to have a relationship with both of his parents, his remaining siblings and both side of his immediate family. He has already lost so much.
Conclusion
[72] For the reasons set out above, I order, on a temporary basis:
Commencing on the date of release of this decision, J shall be placed in the mother’s exclusive care for two weeks, with the exception of Friday at 5:00 p.m. to the following Saturday at 5:00 p.m., when he shall be in the care of the father.
Following the two-week period described above, the parents shall parent J upon the following schedule, which is generally intended to have J in the care of the mother during the week and with the father weekends:
i. With the exception set out in para 72(2)(ii) below, J shall be in the care of the father each weekend, from Friday after preschool (with pick-up at preschool unless agreed in writing otherwise) until Monday return to school. If J’s preschool is on break, J shall be returned to the care of the mother on Monday at 9:00 a.
ii. Despite the terms set out above, J shall be in the care of the mother on the first Friday, overnight until Saturday at 6:00 p.m. of each month.
iii. J shall be in the care of the mother for all times other than holidays, as set out below.
iv. The parents shall equally divide J’s Christmas and spring preschool breaks.
The mother is at liberty to re-enroll J in the Trail Ridge Montessori School, in Grimsby, or a school of her choice in her home catchment area;
While preschool is in session, all of the exchanges for J shall take place at the Trail Ridge Montessori School, if J is enrolled at that school. If he is not so enrolled, the exchanges shall occur at the school at which the mother enrolls him.
For those days that J is not in school, they shall arrange a meeting place to exchange him. The parents shall share the driving for J’s transportation between their homes.
Each parent may use a designate for the parenting exchanges, provided that they have given advance written notice of the identity of that designate to the other. That designate shall abide by the non-derogation rule set out below.
Neither parent will denigrate or disparage the other parent or members of their extended family, either overtly or covertly, in any communication with J or in his presence or at parenting exchanges. Each parent will advise others, including their extended families and friends, to maintain the same standards, refraining from criticizing the other parent to or in front of the children.
Each parent will encourage J to transition into the care of the other at any parenting exchange. His unwillingness to go into the care of the other shall not be an excuse for the failure to transfer him into the care of the other.
Neither parent will not speak with J directly or indirectly about any issues related to the child or any financial issues between them.
Neither party shall change any of the professionals who cared for J prior to the parents’ separation.
The parents will attempt to jointly make any major decisions about J, which shall include religion, education, and health. If they are unable to do so, the mother shall have the final say.
Each party may make day-to-day decisions about J for the time that he is in their care.
Each party may arrange activities for J for the period during which he is in their care. However, if a party wishes to have the other share in the cost of that activity, they shall request the consent of the other to the cost of that activity, such consent not to be unreasonably withheld.
If the parents agree to a s. 30 assessment and assessor, they may move by 14B motion for the assessor’s appointment.
The parents shall subscribe to and utilize the calendar programme, Our Family Wizard (ourfamilywizard.com). Any fee for that programme shall be split equally between the parents. The programme shall be utilized by the parents to communicate and schedule events.
There are many other parenting terms that need to be worked out. The parents will arrange a case conference on a mutually agreeable date to do so.
Inasmuch as there have been changes in the parents’ circumstances, particularly those of the mother, since this motion was first argued, if there are issues with the implementation of this endorsement, the parents may arrange to appear before me. In that event, the court staff shall cooperate to expeditiously find time for them to appear before me.
Costs
[73] The parties should attempt to resolve the issue of costs on their own. If they are unable to do so, the Applicant may submit her costs submissions of up to three pages, double-spaced, one-inch margins, plus a bill of costs/costs outline and offers to settle within 14 days of release of this endorsement. She need not include the authorities upon which she relies so long as they are found in the commonly referenced reporting services (i.e. LexisNexis Quicklaw, or WestlawNext) and the relevant paragraph references are included. The Respondent may respond in kind within a further 14 days. No reply submission will be accepted unless I request it. If I have not received any submissions within the time frames set out above, I will assume that the parties have resolved the issue and make no costs order.
A Note to the Parents
[74] I acknowledge to the parents my understanding that you have endured far more trauma and heartache from E’s drowning than any parent deserves. I also acknowledge the anger and distrust that each feels for the other. But J, who is too young to understand all of that, needs you to find a way to cooperate and co-parent him. If you fail to find a way to do so, J will suffer an even greater loss than he has already experienced. That loss will likely follow him for the rest of his life. You have to find a way to love him more than you dislike or distrust each other. I urge you to agree to hire a social worker as a mediator and/or counsellor to assist you to learn to communicate and work together.
“Marvin Kurz J.”
Electronic signature of Justice Marvin Kurz
Date: October 13, 2021
[^1]: The parties’ evidence is unclear on the exact date of separation. It speaks to an incident, described below, the led the police to attend at the home on July 18, 2021 and the father not returning thereafter. But the mother appears not to have understood them to have separated when she spoke to Ms. Silverthorne of July 19, 2021. Her affidavit of August 15, 2021 refers to a July 20, 2021 separation date. It is not necessary for the purposes of these reasons to determine the exact date of separation as little of consequence to this motion occurred between July 18 and 20, 2021 other than the father leaving the children in the mother’s sole care.
[^2]: This appears to be the same incident that the mother described to HWP. She described him in that incident as the physical aggressor, who threatened and attempted to assault her.