ORILLIA COURT FILE NO.: FC-19-232

DATE: 2021-11-24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Alissia Martin

Applicant

– and –

Christopher Bonnell

Respondent

Brian Kinnear, Counsel for the Applicant

Jeremy Herron, Counsel for the Respondent

Fay McFarlane for the Office of the Children’s Lawyer

HEARD: November 16, 2021

RULING ON MOTION

McDERMOT J.

1On November 16, 2021, I heard argument of the Applicant’s Motion to Change which was commenced by her on November 7, 2019. In that motion, she requested primary residence of the children and child support from the Respondent.

2The children are Aiden (13) and Amanda (12). They have been in the care of the Respondent Father since 2011, when they were barely 3 years old. By consent final order of this court dated July 18, 2012 made in child protection proceedings commenced by Simcoe Muskoka Child, Youth and Family Services, Mr. Bonnell was granted deemed custody of the two children. Access was to be “arranged” between the parents but was to be supervised by either someone agreed to by the parties, or alternatively the Simcoe Muskoka Supervised Access Centre.

3For some time, Ms. Martin did not exercise a lot of parenting time with the children. She moved to Windsor in 2012 and saw the children rarely until returning to Orillia in 2018. After she began this Motion to Change, Ms. Martin received a temporary order for overnight weekend parenting time on consent on January 8, 2020; regular parenting time every second weekend began on August 7, 2020.

4In this Motion to Change, Ms. Martin seeks a change in the July 18, 2012 order to give her primary residence and sole decision-making authority concerning the children. Mr. Bonnell seeks a dismissal of the Applicant’s motion to change and asks for the present parenting time as reflected in the temporary orders made in this case to be cut back. He also seeks child support from the Applicant which has never been paid.

5For the reasons set out below, I have ordered the following:

a. The Applicant’s motion to change primary residence and decision making concerning the children is dismissed;

b. The children’s parenting time shall be adjusted and reduced according to their views and preferences as set out below.

c. The Applicant shall pay the Respondent child support of $280 per month commencing November 1, 2020. Arrears are payable at the rate of $100 per month.

Change in Circumstances

6The order that Ms. Martin seeks to change is a deemed custody order under what is now s. 102(1) of the Child, Youth and Family Services Act¹ which permits the court to make a deemed custody order in child protection proceedings. The reason it is called a “deemed custody order” is because such an order is deemed to be a parenting order made under s. 28 of the Children’s Law Reform Act ( the “CLRA”).² This means that, when changing a deemed custody order, reference must be had to s. 29 of the CLRA, which permits a variation in a parenting order only where “there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the order.”

7As discussed during argument, it is without a doubt that there has been such a material change in circumstances since the order was made in 2012, nine years ago. Although the children still live with the Respondent Father, they were barely out of infancy when the order was made; now they are adolescents, well able to express views and preferences to their counsel. They now have regular contact with the Applicant Mother and have moved several times with their father. They now attend school whereas when the order was made, they were pre-school. If only because the children are nine years older, there are clear changes in circumstances which would permit variation of the order.

8However, that is only one part of the test. The second and more important issue is what order, if an order is to be made, is in the children’s best interests: see s. 24(7) of the CLRA which directs the court to take the best interests of children into account when varying a parenting order.

Motion to Change Primary Residence

9The circumstances to be considered in determining the best interests of children are set out in s. 24(3) of the CLRA which reads as follows:

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

(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 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; and

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

10Under this section the circumstances can be placed into different categories. These include the relationship between the parent and child (s. 24(3)(b)), parenting abilities (ss. 24(3)(c), (g), (h) and (i)), the circumstances surrounding the child including views and preferences (ss. 24(3)(d), (e) and (f)) and domestic violence issues (ss. 24(3)(j) and (k)).

11In arguing for increased parenting time and primary residence of the children, Ms. Martin says that there are several factors which dictate that it would be in the children’s best interests to be placed with her. These are as follows:

a. Ms. Martin says that the children are the victims of domestic violence perpetrated on them by the Respondent. She says that the Respondent threatened to shoot Aiden at one point in time and she surmises that he often inflicts corporal punishment on the children.

b. Ms. Martin also complains that Mr. Bonnell is extremely lax in his parenting of the children and fails to set adequate rules and boundaries with the children, allowing them unlimited time on their electronics and failing to discipline the children. She says that the Respondent disciplines Aiden in a different manner than his sister, Amanda. She says that the Respondent allows Aiden to vape in his home. She claims that Mr. Bonnell’s failure to adequately parent the children results in the children, and in particular Aiden, to act out in her care resulting in defiant behaviour and his walking away from her home which necessitates the police being called.

c. Ms. Martin says that the Respondent has not had stable housing in some time, and that the children have moved three times. She complains that the children are living with the Respondent and his parents in Sebright and are sharing bedrooms with their cousins.

d. She says that the maximum contact principle dictates that care of the children should be, at least, shared.

12Mr. Bonnell relies upon the children’s views and preferences in his position that the children should not be forced to live with their mother. In fact, Mr. Bonnell and the children’s counsel, Ms. McFarlane, suggest that it is in the best interests of the children that the mother’s weekend parenting time be reduced.

Domestic Violence

13The mother says that the father is violent with his children. She complained in her Motion to Change about an incident that took place in June, 2019 when Aiden told the Applicant and her partner that “my father just threatened to shoot me.” The Applicant said in her affidavit in support of the ex parte motion that she brought for care of Aiden that Aiden complained that his father and uncle physically disciplined Aiden. The police and the local Children’s Aid Society were called, but Aiden eventually went back to his father’s home.

14Neither the C.A.S. nor the police determined that there were protection issues concerning Aiden in the father’s home. There was evidence from the C.A.S. on the court file regarding the mother’s ex parte motion, but it was removed from the file. Other than what Aiden said in 2019, there is no direct evidence in the mother’s affidavit as to any abusive behaviour by the father against Aiden. The only evidence that the mother has is the statement that the “physical discipline is confirmed by third parties including the children’s Uncle Robbie.”³

15No particulars are provided of these third party statements. Apart from the fact that this is hearsay evidence which would not be admissible in a motion for final determination of the issues between the parties, there is absolutely no specificity as to what physical discipline was inflicted on Aiden. There is insufficient evidence provided by the Applicant for the court to make a finding that the Respondent is physically abusive with Aiden as alleged by Ms. Martin.

16In fact, if there is an issue concerning family violence, these incidents appear to be taking place in the mother’s home. The mother complained in her affidavit of an incident where Aiden threw a yogurt at her. Ms. McFarlane in her submissions noted that both children complain of loud and vicious arguments and fights between Aiden and the Applicant. Although there is no physical component to this, the altercations are loud and cause Amanda sufficient stress that she is saying that she does not want to go on parenting time with the Applicant. Aiden has put himself at risk on several occasions when he ran away from the Applicant’s home during her parenting time, necessitating police involvement. At one point, one of the police officers involved in returning Aiden to his mother’s home told Aiden he would be sent to “juvy”. If there is any abuse at present, it is verbal and it is now apparently taking place at the Applicant’s home.

17I do not find that the father is physically abusive to Aiden and if there is an issue of family violence as outlined in s. 24 of the CLRA, the evidence shows that Aiden is at risk at his mother’s home more than he is in the father’s.

Inadequate Discipline

18Ms. Martin complained that the Respondent physically disciplined the children and in particular Aiden.

19Then, in contrast to this complaint of excessive discipline, Ms. Martin complains that Mr. Bonnell and his parents fail to adequately discipline Aiden. Ms. Martin asserts without evidence that this is the reason that Aiden is so defiant and ill behaved in her care.

20When I asked Mr. Kinnear as to evidence which would connect Aiden’s behaviour with his mother to Mr. Bonnell’s parenting issues and techniques, he could point to nothing in her affidavit other than her statement that the children seem to know more about the litigation than they should; however, this may arise from their conversations with OCL counsel who is representing them in this proceeding.

21She also cites a letter attached as an exhibit to his client’s affidavit. This is a letter from Kayla Sewell-Payne dated September 21, 2021; in that letter Ms. Sewell-Payne says about Aiden’s behaviour, “I believe he does this [misbehaves] because he hears how his father and his family speak about [Ms. Martin] around them.”⁴ I note that this is stated to be a belief; it is not evidence. Even if admissible (it is hearsay evidence), the writer of the letter does not confirm how she knows that the Respondent and his family talk about the Applicant or what the children are told at their father’s. Although the Applicant says that her information about the father’s statements to the children came from Ms. Sewell-Payne, she says does not talk about what Ms. Sewell-Payne’s evidence is; she calls it “comments”⁵ from Ms. Sewell-Payne which is ambiguous and may include conjecture as much as evidence based on information and belief.

22The letter also confirms the difficulties that the Applicant has had in disciplining the children. It shows that not only Aiden but also Amanda have had some behavioural difficulties in the home of the Applicant. It also shows that the Applicant has had to turn to the police to impose order on Aiden; Ms. Sewell-Payne says that during the weekend of September 17, 2021, the Applicant called the police on two occasions to address issues concerning Aiden. This appears to corroborate the statement by the father in his affidavit that Aiden has told him that the mother calls the police to threaten him during “almost every visit… over the course of a year.”⁶ It also belies the Applicant’s statement that she has only called the police “on occasion”⁷ when Aiden leaves her home to cool down.

23When comparing the behaviour of the children in each person’s home, the evidence is clear that Aiden has difficulties in his mother’s home and the Applicant also has difficulties in managing Aiden’s behaviour. The reason for this may be nothing more than Aiden’s diagnosis of Oppositional Defiance Disorder but it also appears that the Applicant attempts to impose rigid rules and expectations which do not work with Aiden. He ends up storming out of the Applicant’s home and then the police are called. It appears to me that the Applicant excuses her failure to manage her relationship with Aiden by projecting her problems onto the Respondent. She does this without any specific evidence of how the Respondent parents the children and in fact she inconsistently suggests that the Respondent excessively disciplines the children and then accuses him of lax discipline. The letter from Ms. Sewell-Payne confirms that the Applicant sometimes uses the police to discipline Aiden, which speaks volumes of her ability to manage Aiden’s admittedly challenging behaviours.

24I do not find that there is any evidence which would connect Aiden’s behaviours in the Applicant’s home with any inadequacies in the Respondent’s parenting style. I also do not find that the Respondent’s parenting, either excessive or lax, is any basis for a change in primary residence of the children. I also find that any increase in the Applicant’s parenting time would put Aiden in increasing risk from his dangerous behaviour in leaving the Applicant’s home while he is in the care of the Applicant.

Housing Instability

25The Applicant accuses the Respondent of housing instability. She says that the Respondent has not had any stable relationships for some time and has moved the children three times in the past few years. She says that the children are sharing bedrooms with their cousins and that she can offer a more stable home for the children.

26The submissions from OCL counsel shed light on the children’s present living arrangements. Mr. Bonnell admits that he lost his job because of COVID and has had to move to his parent’s residence. That residence is a five bedroom home in Ramara and Ms. McFarlane confirms that the children’s uncle and children also live in the home and that both children share bedrooms with their cousins: Amanda shares a bedroom with one female cousin and Aiden shares a bedroom with two male cousins. Mr. Bonnell lives in a trailer on the property and the children are in the home with their uncle and the paternal grandparents.

27It also appears that the children have changed schools at least once, but that was interrupted by COVID. The children always attended at Rama Central Public School, but for a period of time, starting in February 2020 because of a move by the Respondent, they switched schools to Regent Park Public School in Orillia. However, the children studied at home from March 2020 on and were only at Regent Park during the fall term in 2020 after which the schools were again quickly shut down because of COVID. The children have now returned to Rama Central Public School.

28The Applicant also complains about the children’s living situation at their father’s; however, in turn, the children complain about their weekends at their mother’s apartment. Aiden sleeps on a couch in the living room and Amanda shares a bedroom with her mother, sleeping on an air mattress on the floor that was supplied by the Respondent. Amanda complains that she has difficulty sleeping because of her mother’s coughing (Ms. Martin is a smoker and suffers from COPD). Were the children to move in with the Applicant, she has not arranged for suitable accommodations for the children.

29Certainly, the C.A.S. has refused to further investigate these people and are not concerned about the Respondent’s housing instability. As well, the children do not complain to their lawyer about instability and do not express concerns about their present living arrangements with the Respondent. In fact, they only complain about the living situation with their mother and find it uncomfortable at their mother’s home.

30I also do not find the Respondent’s alleged housing issues to be any basis for a change in care of the children. COVID has caused instability for many individuals and I would not penalize the Respondent for his job loss because of the pandemic. The brief change in the children’s schooling is not indicative of instability and there is no evidence that this affected the children in any adverse fashion.

Views and Preferences of Children

31According to Ms. McFarlane, counsel appointed for the children, the parties consented to her addressing the children’s views and preferences from the counsel table. Certainly, she did so without objection from either party.

32Ms. McFarlane advises that the children’s views and preferences as disclosed by her are strong, consistent, and independent.

33Not surprisingly considering his conflicted relationship with his mother, Aiden wishes to remain in his father’s care. He is ambivalent about visiting his mother and wishes parenting time to be according to his wishes.

34Similarly, Amanda also wants to continue living with her father. She has no complaints about her home situation or the living conditions there. In contrast, she does not enjoy her visits with her mother. She sleeps on an air mattress on the floor of her mother’s bedroom and is kept awake at night by her mother’s coughing throughout the night. She is troubled by the conflict between Aiden and the Applicant Mother and finds herself always attempting to keep the peace. Although she mostly avoids conflict between herself and her mother, there was evidence of at least one incident when she “punched a hole into the bedroom wall and was screaming and yelling”⁸ because she was told to go to bed. She says that she is anxious before visits and does not want to go. She wishes her parenting time to be reduced and Ms. McFarlane suggested that it be reduced to Saturdays at 12:00 p.m. to Sunday afternoon at 2:00 p.m.

35These views and preferences were confirmed by the Applicant herself in her affidavit.

36These children are both young adolescents and OCL counsel confirms that their views are independently held and consistent over numerous interviews between herself and the children. The children are close together in age: Aiden is 13 and Amanda turns 13 next month.

37The Applicant complained that the children seem to be aware of these court proceedings and this is not surprising as they are represented by counsel at these proceedings. It is also important to honour the children’s views and preferences, not only because of the age of the children, but also because they were represented by counsel and were asked for their input. As suggested by Eberhard J. in Lawrence v. Moll, 2021 ONSJ 7338, “Once you have asked a child for his views, and you hear him, what message does it give to the child if you ignore him?” She then answers that question by noting that the child would then not “trust his parents, the court’s investigators, his therapist, the judge or perhaps, anyone again with his true feelings.” [para. 20 and 21]. I agree with that assessment and suggest that the same would apply in the present case.

38The children’s views and preferences are also in accordance with the other factors concerning the children’s best interests as discussed above. As is often the case, the children in this matter are well aware of what is best for them.

39I therefore give great weight to the children’s views and preferences in determining the children’s best interests in this Motion to Change.

Maximization of Contact

40Mr. Kinnear suggests that the maximization of contact between the children and their mother is in their best interests. He says that the maximum contact principle would presume at least shared care of the children rather than the present primary residence arrangement.

41The maximum contact principle originally arose from s. 16(10) of the Divorce Act, R.S.C. 1985 c. 3 (2d Supp.) which provided that contact between children and their parents should be maximized “as is consistent with the best interests of the child”. That provision has been repealed as of March, 2021 and replaced by s. 16(6) of the Divorce Act which reads as follows:

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

42This provision is now echoed in s. 24(6) of the CLRA which is, of course, applicable to this case as the parties never married.

43The fact that there is still a “maximization of contact” principle was reviewed by the Court of Appeal in Knapp v Knapp, 2021 ONCA 305. In that case, the appellant mother made submissions that the maximization of contact principle meant that the onus was on the party who was objecting to shared care. The answer of the Court of Appeal was an unequivocal no:

The trial judge applied these principles and did not mistake maximum parenting time with equal time. Nor did she place an onus on the appellant to rebut equal parenting time. Her reasons, read as a whole, demonstrate that she was alive to the principle that 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.

44This was confirmed in Brown v. Fagu, 2021 ONSC 4374 where Mandhane J. confirmed [at para. 34] that, “Clearly the idea of a presumption in favour of one type of parenting order is anathema to the court's unrelenting focus on the child's best interests.” She stated that, at best, “all things being equal, the child deserves to have a meaningful and consistent relationship with both parents.” In other words, as suggested in the section, the time-sharing arrangement should only be ordered in accordance with the best interests of the children according to the particular circumstances before the court.

45Applicant’s counsel cited Bazinet v. Bazinet, 2020 ONSC 3187 as authority for the proposition that shared care would be presumptively in the best interests of the children and that the court should ensure that parenting time is maximized. However, this case is clearly distinguishable as it was decided under s. 16(10) of the Divorce Act which provided for maximization of contact and which has now been repealed. At para. 192 of the decision, Petersen J. says that, “whatever stability is offered by the status quo parenting schedule cannot displace the statutorily mandated principle of maximum parental contact unless the evidence establishes that maximum contact would conflict with MA's best interests.” If that statement means that maximum contact between both parents overrides the other factors concerning the children’s best interests, I do not believe that is now the law. In fact, s. 24(6) of the CLRA makes it clear that the quantity of a party’s parenting time must be “consistent with the best interests of the child.”

46In any event, the maximum contact provision set out in s. 16(10) of the Divorce Act provision was never part of the CLRA which is the legislation applicable to this case as the parties were never married.

47As well, the non-custodial parent in Bazinet, in whose favour the judge ordered shared custody, was described as “a consistent and stabilizing presence in [the child’s] life.” That does not describe the Applicant in this case, who was largely out of the children’s lives for the first six years after the order was made, and now provides a home that is both chaotic and inadequate for the children.

48Furthermore, to order shared care, the court must address the relationship between the parties. There must be sufficient communication and cooperation between the parties to permit the children to easily transition between the two households that the children live in. Without this, the children move between two houses which are “ships in the night”, each household being blind to the other. This cannot be in any child’s best interests as there must be some communication and deference between the two households on issues of discipline and education so that the children know that the parents are able to set aside their differences in order to co-parent the children together: see Hussain v. Denchik, 2021 ONCJ 275 at para. 45.

49That is notably absent in the present case. It is apparent from the Applicant’s material that she is extremely critical of the Respondent’s parenting style and his methods of disciplining the children. It is also apparent that the Applicant makes these criticisms without even knowing the facts about the Respondent’s disciplining of the children: as noted, she says that on one hand the Respondent uses excessive discipline by “cuffing” the children; on the other she accuses the Respondent of lax discipline. The Applicant’s material contained no evidence as to the ability of the parties to communicate with one another or to cooperate in the co-parenting of the children. There is therefore little evidence that a shared parenting arrangement would be in the best interests of these two children.

Conclusion

50The court’s primary goal is to ensure that the children have a parenting plan that meets their best interests. I find that the best interests are best met by continuing the children’s primary residence with the Respondent Father.

51Firstly, and most importantly, both children have expressed views and preferences that are strong, independent and consistent. They both wish to live primarily with the Respondent Father. They also both want limited time with the Applicant. Based on those views and preferences, it is clear that this particular factor militates in favour of dismissing the Applicant’s claim for primary care of the children.

52These views and preferences are in accordance with the children’s best interests as far as the parties’ respective approaches to parenting and discipline. I firstly do not find that there is sufficient evidence to make a finding that, on the balance of probabilities, the father excessively disciplines the children or excessively uses corporal punishment against the children. They do not complain of this to their lawyer, and there are only two incidents of concern in the Applicant’s materials, neither of which warranted a C.A.S. investigation. Neither the threat to “shoot” Aiden, a statement which the Respondent says was made in jest, nor the statement that the Respondent “cuffed” Aiden, were taken seriously by the Society, which has now refused to further involve itself with this family. I do not find that domestic violence concerns are relevant to this case.

53On the subject of disciplining the children, it appears to me that the problems with disciplining the children do not lie with the Respondent; the problems are, in fact, in the home of the Applicant. It is her home in which Aiden’s meltdowns occur, and from which Aiden runs away, necessitating what appear to be numerous calls to the police. I also find that there is no evidence that the responsibility for these problems lie with the Respondent; for the Applicant to say that the Respondent has caused these problems by the disciplinary methods in his home she misplaces responsibility for the problem. Each parent is generally responsible for disciplinary issues in their respective homes, and the evidence shows that the Applicant is failing miserably in this responsibility. She has unrealistic and rigid expectations for Aiden to which he reacts badly. This results in the police being called to assist her in disciplining Aiden which in turn suggests that the Applicant is unable to adequately address Aiden’s behaviour and his ODD diagnosis.

54The Applicant accuses the Respondent of housing instability, but again, if there is a problem with housing, it lies with the Applicant. The fact that the children do not have bedrooms in the Applicant’s home leads to a finding that the Applicant is not now in a position to assume care of the children. If the Applicant was serious about having primary residence of the children, surely she would have obtained suitable housing over the course of this litigation, commenced by her more than two years ago. Instead, Aiden sleeps on a couch in the living room and Amanda sleeps on an air mattress on the floor of the Applicant’s bedroom. Amanda finds herself unable to sleep because she says that the Applicant coughs throughout the night. Although the children share bedrooms in the Respondent’s parents’ home, they do not seem to mind those living arrangements. In the midst of this pandemic, the Respondent has dealt with his loss of employment and the need to house his family in the best way he has seen fit; similarly to many other parents, he has had to share housing with family and he is not to be penalized for this under the circumstances.

55Finally, the law is clear that there is no presumption of shared care. Instead, as set out in s. 25(6) of the CLRA, the time sharing of these parents with the children should be based upon the children’s best interests. I do not find that the best interests of these children warrant a shared arrangement; there is no evidence that these people can co-parent their children or cooperate to maintain consistent parenting or disciplining of the children. In fact, the materials disclose that the Applicant is unaware of the Respondent’s parenting of the children and has no idea as to how to consistently discipline the children in concert with the Respondent. This is particularly important considering Aiden’s diagnosed oppositional defiance disorder.

56The Applicant’s motion to change primary residence and decision making concerning the children is therefore dismissed. The Respondent shall continue to have deemed custody of the children.

Parenting Time

57As there has been a change in circumstances, part of the consideration of this Motion to Change includes setting the children’s parenting time with the Applicant. The deemed custody order that the Applicant seeks to change provides that she have supervised parenting time as arranged between the parties.

58Since the commencement of this Motion to Change, several temporary orders have been made addressing parenting time. On January 8, 2020, Wood J. made a temporary order on consent for fixed supervised access on Sundays. On July 31, 2020, the supervision requirement was eliminated, and the parties agreed that the Applicant would have weekend access from Fridays to Sundays commencing August 2, 2020. The children have attended those visits consistently since then and no one is asking for ongoing supervised parenting time.

59The children, however, are asking that the parenting time be reduced. According to Ms. McFarlane, Aiden wants parenting time to be according to his wishes; he says he is continually in conflict with Ms. Martin and does not enjoy his visits. Amanda also does not like the conflict in the mother’s home and has difficulty sleeping at her mother’s residence. She is anxious about going for parenting and she wants her parenting time limited to one overnight every second weekend. Ms. McFarlane suggested that Amanda attend for parenting time every second weekend from Saturday at 12:00 p.m. to Sunday at 2:00 p.m.

60Although the views and preferences of the children are important to the result, the issue has to be examined in light of all of the relevant factors surrounding the children’s best interests in this case. The court cannot automatically decide a case according to the views and preferences of children; children have the right to input but do not decide the matter.

61In the present case, however, from the materials filed by the parties, it appears that the parenting time at the mother’s home is chaotic and conflictual. The police are often called to address Aiden’s leaving the mother’s residence, or his meltdowns at his mother’s. One police officer threatened Aiden with juvenile detention. It is evident that the Applicant cannot manage Aiden or his Oppositional Defiant Disorder and I have already made a finding that it is misplaced for the mother to blame the father for Aiden’s difficulties at her residence.

62Having Aiden continually tracked down by the police when he exercises parenting time cannot be in his best interests and the mother’s inability to address Aiden’s behaviour has resulted in the visits becoming disagreeable to Aiden. It is important for Aiden to have meaningful and regular contact with his mother, but it is equally important for Ms. Martin to ensure that her parenting time is beneficial to her son. She is, after all, the parent and as a parent she is expected to do her best to provide a place of calm for her son. At the moment, one of the motivations for Aiden to walk out of the home is to bring the temperature down which he cannot do when he remains in the presence of the Applicant. Her determination to blame the Respondent for Aiden’s meltdowns and his running away from her home does not allow her to find a solution; if she can blame the Respondent for Aiden’s meltdowns and his running away from her home, her next response is that she can do nothing to address the behavioural issues in her home. That does not leave room for her to solve the conflict between herself and Aiden.

63Amanda is also uncomfortable in the mother’s home. Although she does not like the conflict between her mother and Aiden, she has not been without conflict herself in the Applicant’s home. As well, if Aiden is not present and the conflict is eliminated to some extent, Ms. McFarlane also says that Amanda also considers herself and her brother as a “team” and there is a real connection between herself and her brother. She does not want to go for full weekend parenting time without her brother present. She also has sleeping difficulties in her mother’s room.

64I am therefore going to order parenting time as requested by the children. Their views and preferences are in accordance with their best interests and it is important to reduce the severe conflict that is occurring in the mother’s home.

Child Support

65During argument and in his affidavit, the Respondent requested child support to be payable. The Respondent did not file a Response to the Motion to Change making that request, and in fact never filed any Response notwithstanding several extensions to do so which were agreed to by the Applicant.

66The fact that the Respondent was seeking child support is no surprise to the Applicant. Her lawyer did not complain about the failure of the Respondent in filing a Response to the Motion to Change. On October 28, 2020, Justice Wood endorsed that the “RF seeking child support. AM to file Financial Statement by November 15, 2020”. That financial statement was not filed until January 20, 2021 and the Applicant was ordered to file further financial disclosure on March 31, 2021. A second financial statement was filed by the Applicant on September 30, 2021. The Applicant herself raised child support in her Motion to Change. Based upon the fact that the parties were both prepared to argue child support (and in fact did so) and provided financial disclosure, it would offend Rule 2 of the Family Law Rules⁹ (proportionality and the primary obligation to address cases justly) to delay the matter and force the Respondent to file a Response to the Motion to Change requesting child support.

67The Applicant receives Ontario Disability Assistance (ODSP). She earned $18,500 in 2020 according to her financial statement sworn September 30, 2021 and her 2020 Notice of Assessment. Of this amount, she deposes that $1,058.15 per month ($12,697.80 per annum) comes from ODSP; the remainder is presumably income from employment. She claims not to be working right now; however, she filed a pay stub from an employer showing that she was working as of the date of the swearing of that financial statement.

68Mr. Herron suggested that income should be imputed to the Applicant but I decline to do so when she is receiving disability income. However, the Applicant gives no particulars as to why she is not presently working when she was working in September 2021. I therefore find that her income for child support purposes is correctly reflected in her 2020 Notice of Assessment. Support for two children will be payable based upon the Applicant’s income which I find to be $18,500 per annum. This means that the Applicant’s child support obligation for two children is quantified as being $280 per month.

69No temporary child support order has been made in this case. Normally, the commencement date of that support is when the subject was broached by the Respondent: see S (D.B.) v. G (S.R.), 2006 SCC 37, [2006] S.C.J. No. 37. This would normally have been done by a Response to the Motion to Change but the Respondent did not file a Response. Therefore, I go back to the endorsement of Justice Wood dated October 28, 2020 when the issue was raised by the Respondent on the record in court. Therefore, child support shall be retroactive to November 1, 2020.

70Any arrears payable by the Applicant shall be paid in instalments of $100 per month.

Order

71Therefore, final order to go as follows:

a. The Applicant’s Motion to Change primary residence and decision making concerning the children is dismissed.

b. Paragraphs 2, 3 and 4 of the final order of Wood J. dated July 18, 2012 shall be deleted and replaced with the following:

i. The Applicant Mother shall have parenting time with Aiden according to his wishes;

ii. The Applicant Mother shall have parenting time with Amanda as follows:

a. Every second weekend from Saturdays at 12:00 p.m. to Sundays at 2:00 p.m.;

b. Such further and other parenting time as arranged between the Applicant Mother and Amanda, and in consultation with the Respondent.

c. The Applicant shall pay child support to the Respondent in the amount of $280 per month for the two children based upon her income of $18,500 per annum commencing on November 1, 2020.

d. Any arrears shall be repayable by the Applicant Mother in instalments of $100 per month commencing December 1, 2021.

e. There shall be ongoing annual financial disclosure by the Applicant as required under s. 21 of the Child Support Guidelines commencing in June, 2022.

72The Respondent Father is clearly the successful party to this motion and he is entitled to his costs of this motion. If the parties cannot agree on quantum of costs payable, the parties may make written submissions, the Respondent first and the Applicant second, on a 10-day turnaround. No reply is permitted. Costs submissions to be no more than three pages in length not including offers to settle or bills of costs

Footnotes

1. 1S.O. 2017, c. 14
2. 2R.S.O. 1990, c. C.12
3. 3Affidavit of the Applicant sworn September 30, 2021, para. 27.
4. 4Ibid., Ex. B.
5. 5Reply affidavit of the Applicant sworn November 1, 2021, para. 10.
6. 6Affidavit of the Respondent sworn October 8, 2021, para. 38.
7. 7Reply affidavit of the Applicant sworn November 1, 2021, para. 12.
8. 8Affidavit of the Applicant sworn September 30, 2021, Ex. B.
9. 9O. Reg. 114/99