Armstrong v. Coupland, 2021 ONSC 8186

COURT FILE NO. FC 404/21

DATE: December 13, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Derek Clifford Armstrong

Applicant

– and –

Amanda Elizabeth Coupland

Respondent

Helena Birt, duty counsel assisting the Applicant

Jennifer Swan, for the Respondent

HEARD: December 10, 2021

The Honourable Madam Justice Deborah L. Chappel

REASONS FOR JUDGMENT

I. INTRODUCTION

1These are my Reasons for Judgment in relation to a motion of the Applicant dated December 1, 2021, and a cross motion that the Respondent brought in response to the Applicant’s motion. The motions related to the one child of the parties’ relationship, Eliza Anne Marie Coupland, born May 8, 2019 (“Eliza”).

2In his motion, the Applicant requested the following:

1. An order varying the temporary order of MacLeod J. dated September 10, 2021 to grant him regular parenting time with Eliza every Monday and Wednesday from 4:00 p.m. until 7:00 p.m., and every weekend from Friday at 4:00 p.m. until Sunday at 4:00 p.m.;

2. Christmas parenting time from Thursday December 23, 2021 at 4:00 p.m. until Sunday December 26, 2021 at 7:00 p.m., except that the child would be with the Respondent on December 25, 2021 from 12:00 p.m. until 7:00 p.m.;

3. A final order respecting decision-making responsibility and parenting time; and

4. An order granting him the right to have Eliza in his care in the event that the Respondent is unable to care for the child during her parenting time.

3The Applicant did not pursue the relief set out in paragraphs 3 and 4 at the hearing of his motion. In his notice of motion, the Applicant indicated that he was relying on numerous other materials that the parties had filed in relation to previous motions in this case. I indicated at the outset of the hearing that those materials would have far exceeded the limits for a regular motion pursuant to the court’s Province-wide Notice to the Profession Regarding Family Law Cases issued in September 2021, and that the motions would need to be scheduled for a long motion hearing time if he wished to rely on all of them. He and Ms. Birt both confirmed that he wished to proceed with the matter as a regular motion, without relying on the materials filed in relation to the previous motions.

4In her cross motion, the Respondent seeks an order varying the temporary order dated September 10, 2021 to provide that the Applicant’s parenting time with Eliza shall be supervised by Thrive Counselling at such frequency and duration as the centre is able to offer. She also requested a restraining order against the Applicant.

5For the reasons that follow, I conclude that there have been material changes in circumstances relevant to Eliza’s best interests since September 10, 2021, and that it is in Eliza’s best interests that the Applicant’s parenting time be supervised by either Thrive Counselling or the Children’s Aid Society of Hamilton (“the Society”) if it consents to supervise. I note that the Society is currently in the midst of a child protection investigation in this case. I conclude that it is also in Eliza’s best interests that the Applicant’s parenting time be no more than twice a week for two hours on each occasion. I am not making a restraining order at this time. However, I am ordering that any communications between the parties must be through counsel or another agreed upon third party, and I am making a general order that the Applicant not attend within 100 meters of the Respondent’s residence, her place of work or the residence of the maternal grandmother Faith Coupland.

II. BACKGROUND

6By way of background, the parties began their relationship in 2016. They cohabited, but then separated for a period of time in approximately May 2019. They resumed their relationship in February 2020 and separated for the final time on September 22, 2020. They did not cohabit during this last period of their relationship. Eliza is their only child together. The Respondent has an older child from a previous relationship, Cora Lynn Faith Little, born December 29, 2010 (“Cora”), who is not involved in this proceeding. The parties were never married.

7The Respondent alleges that the parties’ separations were due to the Applicant’s abusive behaviour, his alcohol and marijuana addiction problems and his anger management difficulties, particularly when he was intoxicated. She claims that the Applicant was emotionally controlling and demeaning towards her, and that he was also physically abusive during their relationship. The evidence indicates that the Applicant has been convicted of impaired driving on two occasions, in 2013 and again in 2019. According to the Respondent, the first separation on May 5, 2019, 4 days prior to Eliza’s birth, was precipitated by the fact that she returned home and found the Applicant to be severely under the influence of alcohol and behaving aggressively. The Applicant locked the Respondent out of the home on that occasion while the child Cora was in the home, and the police had to intervene to remove the Applicant from the family home to protect Cora and the Respondent. However, the Respondent eventually left the family residence with the children and lived with extended family because the Applicant refused to stay away from the home and continued to harass her. After that incident, the Applicant had parenting time with Eliza supervised by the Respondent.

8The Respondent states that by early 2020, she was no longer comfortable supervising the Applicant’s parenting time because he was difficult and conflictual with her and was not focussing on his time with Eliza. She inquired as to whether the Applicant would commit to not being under the influence of alcohol or drugs so that unsupervised visits could occur, but he refused. The Respondent subsequently decided to reconcile with the Applicant in February 2020, on the condition that he would take serious steps to address his alcohol addiction issues and remain sober. The parties resumed their relationship from February 2020 until September 22, 2020. According to the Respondent, the final separation occurred after an incident during which the Applicant again became intoxicated and aggressive and began ramming her legs with Eliza’s stroller while the child was in the stroller. The Respondent states that the Applicant deliberately tipped the stroller over during this incident, with Eliza in it, and that Eliza was only able to escape serious injury because she grabbed the stroller in time to prevent it from falling over. The Applicant denies hitting the Respondent with the stroller on that occasion. The Society became involved and verified concerns that Eliza had been exposed to adult conflict. The Society was involved with the Applicant’s two older children as well in 2018. The Respondent states that there were concerns at that time about the Applicant verbally abusing one of his sons, who is autistic, and that the Applicant has not seen this child for three years due to this abuse. The Society remained involved with the family in relation to Eliza from September 2020 until February 2021, when it closed its file.

9The Respondent attempted to facilitate contact between the Applicant and Eliza following the final separation in September 2020, including Facetime calls and visits in her presence. She insisted that visits be supervised because of her concerns regarding the Applicant’s substance abuse, his anger issues, uncertainty about his housing situation and threats that he had made that he would not return Eliza to her care after visits. The Respondent states that she asked the Applicant once again to commit to not using alcohol or marijuana while in a caregiving role, but that he refused to agree to these conditions. The Respondent states that she ended Facetime calls with Eliza because during one such call because the Applicant told the child’s older sister Cora to “fuck off” because she was standing near Eliza during the call.

10The Applicant commenced this application and brought an urgent motion for parenting time because he did not feel that his time with Eliza needed to be supervised. Donohue J. heard the motion on April 8, 2021. By that time, the Applicant had not seen Eliza since approximately September or October 2020. On April 8, 2021, Donohue J. made a temporary temporary without prejudice order granting the Respondent primary residence of Eliza, and granting the Applicant weekly supervised parenting time with Eliza through Brayden Supervision Services (“Brayden”) either in the community if possible for three hours, or through virtual visits of up to 15 minutes in duration. The costs of this supervision were to be borne by the Applicant, without prejudice to his right to seek contribution from the Respondent at a later date.

11The Applicant brought an urgent motion for contempt against the Respondent in April 2021, alleging that she was not complying with the order dated April 8, 2021. The motion was dismissed by Pazaratz J. on April 27, 2021 because the court’s operations had been suspended due to COVID-19 and the matter was not considered to be sufficiently urgent to proceed. The Applicant renewed his motion for contempt in July 2021 and brought another motion at that time to address parenting issues. He withdrew the contempt motion, and the other motion was dismissed because it did not meet the test for urgency to proceed prior to a case conference.

12Reid J. held a case conference on August 24, 2021. On that date, he made a temporary without prejudice order granting the Respondent sole decision-making responsibility and primary residence of Eliza. He declared the Applicant to be the father of the child, and ordered the Respondent to update the child’s official records to reflect that he was the father. In addition, the Applicant was ordered to pay the Respondent child support in the amount of $315.00 per month commencing September 1, 2021 based on his estimated annual income of $36,078.00.

13The Applicant had 8 supervised visits with Eliza through Brayden from April 2021 until August 2021. In August, 2021, that agency advised the parties that it had not observed any safety issues during the visits, but that they declined to provide further services due to numerous difficulties that they had experienced in their dealings with the Applicant. These concerns included the Applicant scheduling and then cancelling visits with little notice, becoming agitated and confrontational when last minute requests for visits could not be accommodated, repeatedly requesting proof in writing that the agency was not working to help the Respondent mother, his repeated demands for explanations and documentation and his complaints that the agency had not addressed situations to his satisfaction. The Managing Director of Brayden, Ms. Debbie Sliwinski, confirmed on August 10, 2021 that all of these issues had hindered the agency’s ability to confirm and facilitate supervision services.

14In response to Brayden’s decision to terminate its services, the Applicant brought a motion in September 2021 seeking unsupervised parenting time with Eliza. MacLeod J. heard this motion on September 10, 2021. The Respondent requested that the Applicant’s parenting time remain supervised at that time. MacLeod J. noted that there were valid concerns regarding the Applicant’s history of excessive alcohol consumption and his combative behaviour towards the Respondent. He also found that the Applicant was “difficult and cantankerous.” However, he concluded that the Applicant’s behaviour was not so concerning as to justify supervision of his parenting time with Eliza. After he made that ruling, the parties worked out terms regarding unsupervised parenting time for the Applicant. On that date, a temporary order was made granting the Applicant unsupervised parenting time with Eliza every Tuesday and Thursday from 4:00 p.m. until 7:00 p.m. and every Sunday from 10:00 a.m. until 2:00 p.m. In addition, MacLeod J. ordered that the Applicant was not to consume alcohol or illicit substances during visits or for 12 hours prior, that the parties were to continue to use the communication AppClose to address parenting issues, that these communications were to be once per week unless there was an emergency, that all communications were to be child focussed and relating to parenting of Eliza only, and that neither party was to speak negatively about the other within earshot of the child. He also ordered that parenting exchanges were to occur at the MacDonald’s restaurant located at Queenston and Nash roads (“the MacDonald’s”). This is the temporary order that the parties both seek to vary on a temporary basis. MacLeod J. specifically endorsed on September 10, 2021 that this parenting time arrangement for the Applicant was to remain in effect until at least the settlement conference that was scheduled for late December 2021.

III. POSITIONS OF THE PARTIES

15The Respondent requests that the Applicant’s parenting time be reverted back to limited supervised visits only. She states that since September 10, 2021, the Respondent has demonstrated an unwillingness to follow the parenting time terms of the existing order, has persistently pressured her and her counsel to permit extended and unsupervised time, has made constant last minute demands for changes to the schedule and imposed unreasonable time limits for responses and has threatened to keep the child from her. In addition, she has serious concerns regarding the Applicant’s emotional stability and well-being, and the possibility that he has continued to abuse alcohol and/or marijuana or illicit substances. These concerns are based on many of the Applicant’s communications to her and her counsel in which he has made frequent derogatory comments about her and her counsel, has been unresponsive to reasonable requests, has been sarcastic and threatening and has presented as rambling and non-sensical. The Respondent claims that the Applicant has been driving by her home and that of the maternal grandmother, who cares for Eliza when she works. She submits that the Applicant’s conduct represents a continuation of a longstanding history of coercive and intimidating conduct towards her, that it has impacted her mental health to the point that she is not staying in her own home and has taken time off work, and that she is genuinely fearful that Eliza would suffer emotional and potentially physical harm in the Applicant’s care if left unsupervised with him. She also submits that the child has exhibited uncharacteristic aggressive conduct since the Applicant’s unsupervised parenting time began.

16The Applicant adamantly denies that there are any concerns regarding his unsupervised time with Eliza, his alcohol or substance use or his mental health status. He claims that the Respondent has a history of alienating Eliza from him and stonewalling his efforts to have meaningful time with the child. He acknowledges that he is difficult and cantankerous at times, as MacLeod J. noted on September 10, 2021, but insists that he “only gets that way” because the Respondent and her counsel are so challenging and unfair to him. He states that he is fully able to meet Eliza’s needs, that the child wishes to have more time with him, that there have been no concerns respecting his care of the child and that it is in her best interests that his parenting time progress to the next step with overnight weekend time.

17The Applicant’s perspective is that the problems that led to this motion began on November 14, 2021, when the Respondent attended the access exchange location for his visit with the child 40 minutes late. He felt that the Respondent presented as dishevelled and intoxicated at that time, and that she had driven the child while under the influence of alcohol. He states that he communicated with the Respondent and her counsel on November 19, 2021 to state that he would not return Eliza after his visit on Sunday November 21, 2021 if the Respondent showed up at the exchange location in an intoxicated state again. He claims that he was concerned about this because the Respondent planned to celebrate her mother’s birthday on Saturday November 20, 2021. The Respondent did not permit any further parenting time with the Applicant after that point, based on her concerns regarding the Applicant’s dysregulated communications and his threats to not return Eliza to her care. The Applicant attended at the access exchange location on November 21, 2021 to retrieve Eliza for his parenting time, but the Respondent did not show up. She sent a message to the Applicant that she would not be bringing Eliza for further visits until she could consult properly with counsel and return to court. The Applicant contacted the police, who were able to connect with the Respondent, obtain an explanation for her actions and confirm that the child Eliza was fine. The police advised the Applicant that the Respondent did not appear to be intoxicated. Despite having heard from the Respondent about her intentions, the Applicant proceeded to search for her and the child at her home, the home of the maternal grandmother Faith Coupland and the residence of the maternal uncle Jeremy MacDonald. The Applicant then contacted the Society to report his concerns that the Respondent had driven with Eliza while intoxicated on November 14, 2021, and that she was in hiding with the child, which resulted in the Society pressing the police to file a Missing Person report respecting the child. Both parties have made reports to the Society with concerns about each other, and as I have stated, the Society is currently carrying out a child protection investigation. The parties confirmed that the Society is awaiting the outcome of this motion to assist it in determining next steps.

IV. THE LAW

A. Legislative Provisions and General Principles

18The parties were never married, and therefore the starting point for the analysis of the issues in this case is the Children’s Law Reform Act, R.S.O. 1990, R.S.O. 1990, c. C-12, as amended (the “CLRA”). Section 21(1) of the Act provides that a parent of a child may apply to a court for a parenting order addressing decision-making responsibility and parenting time with respect to the child. Section 29 (1) of the Act stipulates as follows with respect to requests to vary a parenting order:

Variation of Orders

29 (1) A court shall not make an order that varies a parenting order unless 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.

19Section 24 of the CLRA sets out the test and considerations that apply in making a parenting order. Section 24(7) establishes that section 24 applies equally to interim parenting orders and to variations of parenting orders or interim parenting orders. Section 24(1) stipulates that in making a parenting order, the court shall only take into account the best interests of the child in accordance with section 24. Section 24(2) provides that in determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. Section 24(3) outlines a non-exhaustive list of factors related to the circumstances of the child that the court must consider in making a parenting order, as follows:

Factors

24 (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. 2020, c. 25, Sched. 1, s. 6.

Factors relating to family violence

24(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,

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

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

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

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

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

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

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

(h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.

20The term “family violence” is defined in section 18(1) of the Act as follows:

“family violence” means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct;

21The definition of family violence specifically recognizes that conduct that may not constitute a criminal offence can constitute family violence for Family Law purposes. The examples of conduct that constitute family violence is expansive, but it is non-exhaustive. The broad definition recognizes the many insidious forms that domestic violence can take other than physical violence and accords each equal weight in the best interests assessment. The specific inclusion of this factor as a mandatory consideration in determining the best interests of children recognizes the profound effects that all forms of family violence can have on children. These consequences can be both direct, if a child is exposed to the family violence, or indirect, if the victimized parent’s physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact that parent’s ability to meet the child’s physical and emotional needs.

22Section 24(5) of the CLRA addresses the issue of past conduct in assessing the child’s best interests as follows:

Past Conduct

24(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. 2020, c. 25, Sched. 1, s. 6.

[23] Section 24(6) CLRA directs that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. The principle set out in section 24(6) recognizes that generous and meaningful parenting time with each parent is usually important and should be encouraged to the extent that it is consistent with the child’s best interests. However, it does not create a presumption in favour of equal time or maximum time with each parent. It is subject to the overriding best interests test, and to the paramount consideration set out in section 24(2) of the child’s physical, emotional and psychological safety, security and well-being. The fact that this principle is specifically addressed in the section of the legislation entitled “Best Interests of the Child” is significant and underlines the fact that it is but one consideration in carrying out the best interests determination. The courts have clearly emphasized over the years that while maximizing contact between children and parents is important, it is not an unbridled objective. If the evidence indicates that increased parenting time with a parent would not in fact support the child’s best interests, it should not be ordered (Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3 (S.C.C.), at para. 40 and Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.), at p. 49; B.V. v. P.V., 2012 ONCA 262 (C.A.), at para. 15; Rigillo v. Rigillo, 2019 ONCA 548 (C.A.), at para. 4).

24Section 28(1) of the CLRA outlines the general powers of the court in an application under section 21, and the types of provisions that it can incorporate into a parenting order, as follows:

Parenting orders and contact orders

28 (1) The court to which an application is made under section 21,

(a) may by order grant,

(i) decision-making responsibility with respect to a child to one or more persons, in the case of an application under clause 21 (1) (a) or subsection 21 (2),

(ii) parenting time with respect to a child to one or more parents of the child, in the case of an application under clause 21 (1) (b), or

(iii) contact with respect to a child to one or more persons other than a parent of the child, in the case of an application under subsection 21 (3);

(b) may by order determine any aspect of the incidents of the right to decision-making responsibility, parenting time or contact, as the case may be, with respect to a child; and

(c) may make any additional order the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the child’s well-being, including in relation to the child’s health and education, to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child. 2020, c. 25, Sched. 1, s. 6.

25Sections 28(4) and (5) provide that in making a parenting order, the court may allocate decision-making responsibility, or any aspect of it, to one or more persons, and may allocate parenting time respecting the child by way of a schedule.

26Section 34 of the CLRA provides that the court may give such directions as it considers appropriate regarding the supervision of decision-making responsibility, parenting time or contact with a child:

Supervision of parenting orders and contact orders

34 (1) A court may give such directions as it considers appropriate for the supervision, by a person, a children’s aid society or other body, of decision-making responsibility, parenting time or contact with respect to a child under a parenting order or contact order. 2020, c. 25, Sched. 1, s. 11.

Consent to act

(2) A court shall not direct a person, a children’s aid society or other body to supervise the exercise of decision-making responsibility, parenting time or contact under subsection (1) unless the person, society or body has consented to act as supervisor. 2020, c. 25, Sched. 1, s. 11.

27Sections 33.1 (1) to (5) of the CLRA impose duties on parties who are granted decision-making responsibility, parenting time or contact in relation to a child, as follows:

Parties

Best interests of the child

33.1 (1) A person to whom decision-making responsibility, parenting time or contact has been granted with respect to a child under a parenting order or contact order shall exercise the decision-making responsibility, parenting time or contact in a manner that is consistent with the best interests of the child within the meaning of section 24. 2020, c. 25, Sched. 1, s. 10.

Protection of children from conflict

(2) A party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding. 2020, c. 25, Sched. 1, s. 10.

Alternative dispute resolution process

(3) To the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Part through an alternative dispute resolution process, such as negotiation, mediation or collaborative law. 2020, c. 25, Sched. 1, s. 10.

Complete, accurate and up-to-date information

(4) A party to a proceeding under this Part, or a person who is subject to an order made under this Part, shall provide complete, accurate and up-to-date information if required to do so under this Part. 2020, c. 25, Sched. 1, s. 10.

Duty to comply with orders

(5) For greater certainty, a person who is subject to an order made under this Part shall comply with the order until it is no longer in effect. 2020, c. 25, Sched. 1, s. 10.

28Finally, the Respondent requests a restraining order in this case. The court’s authority to make a restraining order is set out in section 35 of the Children’s Law Reform Act as follows:

Restraining order

35 (1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. 2009, c. 11, s. 15.

Provisions of order

(2) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate. 2009, c. 11, s. 15.

B. The Threshold Test for Variation of Parenting Orders: A Material Change in the Circumstances of the Child

29The relevant provisions of the CLRA establish that there are two parts to the test for varying a parenting order, whether on a final or interim basis. First, by virtue of s 29(1), the moving party must establish that there has been a material change in circumstances that affects or is likely to affect the best interests of the child since the existing order was made. Second, if this threshold test is satisfied, the court must determine the parenting terms that are in the best interests of the child. The Supreme Court of Canada addressed the test that applies in a variation proceeding respecting parenting orders in Gordon. Although that case was decided under the Divorce Act, R.S.C. 1985, c. 3 (2nd. Supp.) as amended, and prior to the recent amendments to that Act, the general principles which the court articulated apply equally to parenting order variation proceedings under the CLRA and other provincial legislation (Brown v. Lloyd, 2015 ONCA 46 (CA); W.(A.C.) v. P. (T.M.), 2014 ONSC 6275 (Div. Ct.); Bjornson v. Creighton (2002), 2002 45125 (ON CA), 62 O.R. (3d) 236 (C.A.); leave to appeal to S.C.C. dismissed, 2003 CarswellOnt 1387 (S.C.C.); Burgoyne v.. Kenny, 2009 NSCA 34 (C.A.)). Drawing from the caselaw, in order to satisfy the threshold test for variation under section 29 of the CLRA, the moving party must establish the following:

1. That there has been a change in the condition, means, needs or other circumstances of the child and/or the ability of the parties to meet those needs;

2. That the change materially affects the child; and

3. That the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

(see also Persaud v. Garcia-Persaud, 2009 ONCA 782 (C.A.), at para. 4).

30The caselaw has established that the concept of a “material change in circumstances” in the context of parenting order variation proceedings must be viewed flexibly, so as to accommodate a host of factual developments that may have evolved since the existing order was made. The changes must be such that if they had been known at the time the order was made, they would likely have resulted in different terms (Thompson v. Drummond, 2018 ONSC 1975 (S.C.J.), at para. 36; V. v. V., 2021 ONSC 4380 (S.C.J.), at para. 14). The corollary to this principle is that if the circumstance relied upon to meet the threshold test was known or contemplated when the order was made, it generally cannot be relied on to meet the threshold test for a variation (Thompson, at para. 36). The key consideration in determining whether a circumstance can later be relied upon in a variation proceeding is whether it was factored into the decision-making at the time the order or agreement was made (Thompson, at para. 36).

31A change in circumstances will only be considered “material” in the context of a parenting order variation proceeding if it is significant and reasonably long-lasting in nature; trivial or short-lived changes will not justify a variation (Thompson, at para. 37; V v.V., at para. 15). The threshold material change in circumstances test is aimed in part at ensuring that the parties do not resort to litigation whenever any change occurs, however minimal (Gordon, at para. 64; Neger v. Dalfen, 2016 ONCJ 751 (O.C.J.)). Not every circumstance, event or mistake by a party that affects a child will be considered a material change in circumstances for the purposes of a variation application. As Gray J. stated in Kerr v. Easson, 2013 ONSC 2486 (S.C.J.), at para. 62, aff’d 2014 ONCA 225 (C.A.), “[p]arents are not perfect and they will make mistakes. The court will not assume jurisdiction to correct every mistake in the guise of a material change in circumstances.”

C. Determination of the Parenting Terms that are in the Child’s Best Interests

32If the moving party fails to satisfy the court that there has been a material change in circumstances within the meaning of section 29 of the CLRA, the inquiry is at an end and the court must dismiss the variation proceeding (Persaud, at para. 3). However, if the threshold criterion has been met, the court must then determine the parenting terms that are in the child’s best interests, having regard for the considerations set out in section 24 of the CLRA. Both parties bear the evidentiary onus at the second stage of the analysis of demonstrating where the best interests of the child lie, and there is no legal presumption in favour of maintaining the existing parenting arrangements (Bubis v. Jones, 2000 22571 (ON SC), 2000 CarswellOnt 1243 (S.C.J.), at para. 20; Persaud; Deslauriers v. Russell, 2016 ONSC 5285 (S.C.J.); Thompson; S.D. v. J.D. and A.D., 2021 ONSC 5765). The focus of the court’s inquiry is the child’s best interests having regard for the change in circumstances. The court must assume that the existing order was correct, and the moving party is not entitled to re-argue all of the issues that led to the making of the existing order, unless they are somehow relevant to events that have occurred since the existing order was made (Docherty v. Beckett (1989), 1989 8869 (ON CA), 21 R.F.L. (3d) 92 (Ont. C.A.); Blank v. Micallef, 2009 CarswellOnt 5753 at para. 33; Kerr, at para. 11).

V. ANALYSIS

33Applying the principles set out to this case, I must first determine whether there have been any material changes in circumstances since September 10, 2021 that affect or are likely to affect the child Eliza’s best interests. I am satisfied that there have been, and that these changed circumstances persisted from the time the order was made until November 21, 2021. In addition, having regard for those circumstances and all of the evidence before me, I conclude that it is clearly in Eliza’s best interests that the Applicant’s parenting time with her be supervised by a professional agency until the Applicant accesses services to address the concerns regarding his well-being and behaviour and demonstrates progress in addressing those concerns.

34To begin with, I note that when MacLeod J. made his temporary order dated September 10, 2021, he clearly had concerns about the Applicant’s history of substance abuse and “combative” behaviour towards the Respondent. However, he felt based on the evidence before him that these concerns were not of such a severity as to justify supervision of the Applicant’s parenting time with Eliza. Nonetheless, because of those concerns, MacLeod J. stated that the parenting terms that he was ordering were to remain in place until at least the settlement conference in December 2021, barring any negative incidents that would warrant a decrease in the Applicant’s time with Eliza. Despite this clear direction, the Applicant has since September 10, 2021 demonstrated that he had no intention of abiding by the parenting time terms set out in the order made on that date, and has embarked upon a persistent, systematic campaign with the Respondent and her counsel to change those terms. The Applicant insists that there was an understanding by the end of the court appearance on September 10, 2021 that the parties would work towards an increase in his unsupervised time with Eliza leading up to the settlement conference. There is no evidence whatsoever in support of any such understanding. The endorsement of September 10, 2021 clearly reflects that there was no such intention, and that MacLeod J. would not have supported an increase in unsupervised parenting time without further judicial input on the issue after considering how the Applicant’s parenting time had gone. The Respondent strenuously argued in court on September 10, 2021 that the Applicant’s time with Eliza should be limited to professionally supervised parenting time. For the Applicant to suggest that the Respondent was supportive of a significant increase in his parenting time by the end of that court appearance is simply not plausible. The Applicant’s alleged misapprehension of the outcome of the September 10, 2021 court appearance raises serious concerns regarding either his credibility or his ability to process information clearly and to conduct himself appropriately in response to court orders.

35The Applicant’s behaviour in relation to his parenting time with Eliza since September 10, 2021 has wreaked havoc on the Respondent’s life and seriously impacted her ability to focus on caring for Eliza and her other daughter Cora. It has also placed an incredible strain on the Respondent’s counsel, Ms. Swan, in her efforts to represent the Respondent in this matter. Since shortly after September 10, 2021, the Applicant has bombarded the Respondent and Ms. Swan with regular requests, at least 2 to 3 times per week, to change the times for his visits, increase his parenting time, allow for overnight time and change the location of parenting time exchanges. He has typically made these requests on very short notice, has demanded a response by a specified time, and has threatened to simply take or keep Eliza in accordance with his requests in the absence of a response within his unilaterally-set response time. Many of the requests have been made on a Friday evening before his Sunday visits. As part of this campaign to change the parenting terms of the existing order, he has relentlessly pressured the Respondent at the time of parenting exchanges to concede to his demands for increased parenting time and other changes to the existing order. This behaviour became progressively more frequent and assertive, to the point that the Applicant simply began to dictate changes to the September 10, 2021 order without regard for whether the Respondent consented or not. These persistent requests have caused the Respondent a great deal of distress and have disrupted her daily functioning and parenting. She became extremely anxious at parenting exchanges because of her expectation that the Respondent would pressure her in front of Eliza. In addition, she has had to frantically seek out her counsel, often over the weekend, to obtain advice and attempt to respond by the deadlines set by the Applicant for a reply to his demands. To her credit, she and Ms. Swan were generally able to respond on time, but at a huge personal toll as well as a professional one for Ms. Swan. On each occasion, Ms. Swan has asked the Applicant to confirm that he will abide by the terms of the September 10, 2021 order. Until November 19, 2021, the Applicant reluctantly agreed to abide by the order. However, on Friday November 19, 2021, he sent several emails to Ms. Swan, stating that on a go-forward basis, commencing November 21, 2021, he would be keeping Eliza every week from Sunday at 10:00 a.m. until Thursday at 7:00 p.m., regardless of the Respondent’s consent. He also sent a text message to the Respondent’s best friend, Rachel Chabot, on November 21, 2021 before his scheduled visit began, stating that he would be keeping Eliza in his care every week from Sunday morning until Thursday evening. Ms. Swan advised the Applicant that the Respondent did not agree with this plan, and asked him once again to confirm that he would abide by the terms of the September 10, 2021 order and return Eliza to the Respondent’s care after his visit on November 21, 2021, at 2:00 p.m. He did not commit to doing so.

36I summarize the evidence in support of the above-noted concerns in greater detail below. However, I note that in addition to those concerns, the Applicant has since September 10, 2021 demonstrated extremely poor impulse control and a general sense of dysregulation in his communications with Ms. Swan and the Respondent about issues pertaining to Eliza. The communications demonstrate a pattern of him being conciliatory at first when making requests, but then quickly becoming disrespectful and belligerent when things do not go as he wishes. In these communications, he has been demanding, has launched insults against Ms. Swan and the Respondent, has accused the Respondent of alienating him from Eliza and Ms. Swan of being an accessory to this alleged alienation, and has threatened to report Ms. Swan to the Law Society of Ontario for alleged professional misconduct. At times, these communications have occurred late at night and he has sent several messages in succession. Many of the communications have been rambling in nature and very difficult to comprehend. The Applicant’s Reply affidavit filed on this motion was similarly prolix in nature and difficult to follow. In addition, the Applicant’s notes about his visits with Eliza reflect that he had no intention of ever abiding by the parenting terms of the September 10, 2021 order, and that he has a very negative view of the Respondent as a person and a parent.

37The details respecting the concerns described above are as follows:

1. On September 16, 2021, only 6 days after the existing order was made, the Applicant sent Ms. Swan a convoluted, 8 page email requesting a significant expansion of his parenting time leading up to the settlement conference in December 2021, for parenting exchanges to occur at the parties’ homes rather than the MacDonald’s, and for makeup time for missed visits. He also indicated that he would be recording all parenting time exchanges using a dashcam, and he set out a complex proposal for how the parties should discuss issues respecting Eliza. The Applicant also set out specific deadlines for when he expected to receive responses to each aspect of his proposal. He commented that he felt this significant expansion of his parenting time aligned with the order made on September 10, 2021, and that he would therefore be bringing a motion to seek an order in accordance with his proposed schedule if the Respondent did not commit to abide by it by October 31, 2021.

2. A week later, on September 23, 2021, the Applicant commented in a note that he made about his visit that day that the Respondent was reluctant to speak to him at the parenting exchange when he wanted to talk about his visit and his parenting time. He also indicated that Ms. Swan had sent him a letter regarding his proposal, and that the Respondent was “not interested in helping to reintegrate me into Eliza’s life.” He stated that he would try again the next day to garner the Respondent’s cooperation through her lawyer, “but I think I’m going to need to file another Motion.”

3. In his note respecting the visit on September 28, 2021, the Applicant commented that Eliza has made comments that suggest that she is being “programmed by the Couplands,” that the child Cora is likely involved in this programming, and that he attempts to engage Eliza in discussion about this during visits to see the full extent of this alleged behaviour. He notes that he is a pillar of stability for Eliza “amidst the craziness that she’s exposed to at her mom’s.” In addition, he comments that another motion will be required to get this “craziness” to stop, but that he would try one last time to get the Respondent to be more reasonable.

4. His note regarding the visit on September 30, 2021 indicates that he pressed the Respondent for additional parenting time for Thanksgiving weekend during the parenting exchange, despite the fact that Ms. Swan had already addressed his request for additional time. This clearly caused the Respondent stress, as the note indicates that she swore at him in response to the request and told him to just get Eliza out of the car. The Applicant added at the end of his note that Eliza wants more time with him, and “I’m going to get it for her. Simple as that.”

5. The Applicant indicated in his note respecting the visit on October 3, 2021 that he again asked the Respondent about more time for Thanksgiving at the parenting time exchange that day.

6. On October 5, 2021, the Applicant sent Ms. Swan and the Respondent an email complaining that she and the Respondent had not responded to his proposal for expanded parenting time, other than to refuse to respect Eliza’s best interests and to ignore the directions given by MacLeod J. at the hearing of the motion on September 10, 2021 regarding more parenting time for him. He noted that he had attempted to talk to the Respondent at parenting exchanges about Thanksgiving weekend, but described her as “Oppositional and Defiant, as though she’s been inflicted by some sort of disorder.” He suggested that the Respondent was using Eliza as “a pawn in her affectation,” and that perhaps she needed counselling. Ms. Swan responded promptly on October 6, 2021, asking what the Applicant was proposing for Thanksgiving weekend. She also requested that the Applicant cease insulting the Respondent in his communications, since this did not assist in the negotiation process. In his response on October 6, 2021, the Applicant again referred to the Respondent as “Oppositional and Defiant,” and asked for an overnight visit with Eliza and that the location for parenting exchanges be changed. Before Ms. Swan was able to respond, he sent another email on October 8, 2021 demanding a response by the end of the day, failing which he would simply make a decision on his own.

7. On Saturday October 23, 2021 at 9:17 p.m., the Applicant sent Ms. Swan and the Respondent an email declaring that commencing with his visit the next day, Sunday October 24, 2021, he would be keeping Eliza until 8:00 p.m. on Sundays rather than the court-ordered time of 2:00 p.m. and he would be doing the parenting exchange at an address in Stoney Creek rather than the MacDonald’s stipulated in the court order. He asserted that he would be returning the child to the Respondent on Sunday October 31, 2021 at her home, rather than the MacDonald’s, and at 6:00 p.m. rather than the court-ordered time of 2:00 p.m. Furthermore, he stated that upon returning the child to the Respondent on that day, he would be going “trick or treating” with them in the Respondent’s neighbourhood. Finally, the Applicant dictated that for his visit commencing November 7, 2021, he would be keeping the child until the following Thursday November 11, 2021. In this email, he stated that the only other option was for the Respondent to continue to abuse Eliza by alienating her from him, and that this alienation was established at the court appearance on September 10, 2021. In response to this email, the Respondent was compelled to contact her counsel on an urgent basis over the weekend. Ms. Swan sent an urgent email to the Applicant asking him to confirm that he would adhere to the terms of the September 10, 2021 order, failing which the Respondent would not be bringing Eliza for the visit the next day. The Applicant responded on October 24, 2021, stating that he would comply. However, in that email, he accused Ms. Swan of supporting family conflict, accused both her and the Respondent of failing to abide by MacLeod J.’s direction that they promote a meaningful relationship between him and Eliza, asserted that the Respondent was abusing Eliza by keeping her from the court-ordered parenting time with him and that Ms. Swan was enabling that abuse, and accused Ms. Swan of using threats and ultimatums against Eliza to gain control over him.

8. On Friday November 5, 2021 at 4:48 p.m., the Applicant sent Ms. Swan and the Respondent another email requesting additional time with Eliza starting the next day, Saturday November 6, 2021 at 1:00 p.m., until Sunday November 7, 2021 at 7:00 p.m. He stated that he would be attending the Respondent’s home rather than the MacDonald’s at 1:00 p.m. unless he heard back that this was not acceptable. Again, this email sent the Respondent and her counsel into urgent reaction mode over the weekend.

9. On November 8, 2021 at 8:48 p.m., the Applicant sent Ms. Swan and the Respondent another email asking that his visit on Thursday November 11, 2021 commence at 10:00 a.m. rather than the court-ordered time of 4:00 p.m., so that he could take Eliza to a Remembrance Day celebration at the Stoney Creek Cenotaph. He noted that Remembrance Day is a very solemn occasion in his family, and that he would like to start Eliza “on the path of reverence for this occasion as I know that your client is indifferent to the reverence of our fallen family members.” Although Eliza is only 2 years of age, the Applicant expressed that Eliza should begin to participate in this celebration so that she could develop a sense of “what is important to her kin from both sides of her lineage.” He demanded that the Respondent advise him of her position the next day at the parenting exchange, failing which he would simply proceed with his plan and pick the child up at the Respondent’s home, rather than the MacDonald’s, on November 11th at 1:00 p.m. He asked Ms. Swan to finally encourage the Respondent to be amicable. His comments in this email were disjointed, aggressive, intimidating and threatening in nature and tone. He stated as follows:

I look forward to beginning a more friendly relationship with your client. It’s what Eliza wants right? Right? Right? Just kidding. I know what she wants. She told me so. You could never know my Sweet Beautiful Amazing Wonderful Lovely Smarty Pants Bimpy Gurl like I do. Have you even met her?

With all due respect. Get your client to be agreeable soon. I promise that you’ll get all of that hurt that you’re creating in Eliza’s life from your support of this animosity back on you somehow by karma. Could you please send me your goddamned LSUC #. I’ve only been asking for it for a fifth of Eliza’s life. It seems like you don’t want me to make a complaint against you disrespecting the legislated changes. Have you had others? Are there many more? Remember when I asked you for the respect that you would show to your professional peers in the spring. Yeah. Here we are!

The Applicant then accused Ms. Swan of not sharing all of his messages with the Respondent, and stated:

“I hope that you understand that I wish for you to exit Eliza’s life forthwith. You’re a blight on hers and Amanda’s existence that will be eradicated next time we’re in court if I have my way. That’s my hope. Please stop taking advantage of your client’s anxiety issues to pad your bank account. It’s pretty despicable even for you. Despite being against the law.

The Applicant also stated in this email that he would not be using “that bullshit app” any longer, referring to the AppClose app that he is required to use pursuant to the September 10, 2021 order, and stated that his agreement to anything that he was forced to accept was very tenuous.

10. Despite the caustic nature of the Applicant’s email on November 8, 2021, Ms. Swan responded calmly and respectfully on November 9, 2021 a 10:47 a.m., asking him once again to stop sending threatening correspondence. She noted that he was making on average 2 to 3 requests each week to change the existing order. Nonetheless, she noted that he had not set out a clear proposal for November 11th, since he had not specified when he wished to return Eliza to the Respondent’s care. She asked him to clarify this point so that she could seek instructions about his request from the Respondent. The Applicant’s response was once again disrespectful and malicious in nature. He denied having been threatening in his email and accused the Respondent of not complying with certain aspects of previous orders. He did not provide a suggestion for an end time to the November 11th visit. Instead, he made the following discourteous comments:

In plain English. If I don’t hear from your client tonight in person that she desires to prevent Eliza spending the day with me on Thursday then I will show up at her home to pick Eliza up at 10:00 a.m. on Thursday November 11, 2021 as I will consider that she is in agreement of such by her lack of disapproval. Should you require it I can translate that to French or Spanish for you or I can recommend an excellent ESL course for you to help with your reading comprehension skills.

The Applicant went on to suggest that Ms. Swan and the Respondent were defying MacLeod J.’s directions to permit a meaningful relationship between him and Eliza by not conceding with his requests. He then made the following comments about Ms. Swan:

Please stop using Eliza and your client as a means to get vengeance on me because Justice MacLeod made you look like a fool I court [stet]. It’s unprofessional and despicable. Please stop preying on Ms. Coupland’s severe anxiety and encourage her to be more peaceful as Justice MacLeod encouraged you to do in our last hearing.

11. The Applicant’s communications became even more concerning on November 10, 2021. On that evening, commencing at 8:06 p.m., he sent six separate emails to Ms. Swan and the Respondent. The first two were identical. In those emails, he accused Ms. Swan again of taking advantage of the Respondent’s alleged anxieties, and claimed that after December 1st, he would reach agreement with the Respondent about his parenting time regardless of how hard it was for Ms. Swan to gain her cooperation. The clear message was that he intended to start exerting increased pressure on the Respondent directly to cave into his demands for more parenting time with Eliza. He announced that he was “done” with being patient, and that he would soon be making decisions for Eliza that did not include the Respondent’s agreement. He accused Ms. Swan of attempting to bankrupt him, and asserted “Please provide me with a valid reason why Eliza can’t spend the night with me by Thursday November 11, 2021 at 4:00 p.m. or that’s what she’ll be doing until Sunday. Seriously, are you’re [stet] done helping your client hurt my child, or not, your choice JSwan.” He alleged that communication, expectations and contact between him and the Respondent were being impeded by Ms. Swan’s presence and accused Ms. Swan once again of being involved simply for financial gain. He reiterated that MacLeod J. had made Swan “look like an idiot,” and added as follows:

Is that all Eliza’s well being is worth to you. A paycheck. I’m sorry that you’re barren but that doesn’t mean that Eliza has to suffer because you had a verbal tongue lashing from a judge during one of our interactions about her. Do you really want to progress this any further. I can dig deeper.

12. In his third email dated November 10, 2021, the Applicant stated as follows:

Just so that you know, I’m now devoted to making sure that you, personally, cannot hurt any more kids like you’re hurting Eliza. You’re my next project. This is the last communication the you [stet] will receive from me. I am no longer in agreement with the bullshit that is hurting Eliza.

13. In a further email to Ms. Swan and the Respondent on November 19, 2021 at 9:19 p.m., the Applicant continued to berate Ms. Swan and the Respondent and to accuse them of abusing Eliza by not complying with his demands. The Applicant appears to have become increasingly dysregulated by this point, as there are many typographical errors in his email. He accused Ms. Swan again of taking advantage of the Respondent’s alleged anxiety, told her to “grow up,” once again called her “a blight on Family Law,” and suggested that she “pivot to Injury Law dur [stet] to your penchant for hurting children.”

14. In his final message dated November 10, 2021, at 10:04 p.m., the Applicant believed that he could no longer email Ms. Swan directly and therefore directed the message solely to the Respondent. He continued to berate the Respondent for not conceding to his demands and stated “Does Eliza keep remembering that her daddy is a piece of shit how you would have it or does Eliza get to enjoy a life with her daddy… You’re a bit bad mother. Maybe you can let go of the bad ideology that your mother and sister and the system made you think was normal so that Eliza can have a normal life like all of her friends in grade 3. Or 4. Or 5. Or 6. Are you a monster or not. I’m waiting to find out.”

15. The Respondent allowed the Applicant to have his scheduled visit with Eliza on Sunday November 14, 2021, despite the concerning nature of the emails of November 9, 2021. As I have indicted, he claims that the Respondent attended the parenting exchange late on that day, and that she appeared to be intoxicated when she brought Eliza from her vehicle. The Respondent adamantly denies that she was intoxicated. She states that she and Eliza had had a very bad night because Eliza could not sleep, and that she had therefore messaged the Applicant to ask that the visit start and end later so that they could get some rest. She also claims that the Applicant again pressured her at the time of the exchange to have more parenting time, and that he called her a “dumb twat” when she told him that she was not comfortable having that discussion. There is no independent evidence to substantiate the Applicant’s concerns that the Respondent was intoxicated on November 14, 2021, and I note that the Applicant did not make a report to either the police or the Society to relay his concerns. Significantly, he claimed that there was a video of the Respondent stumbling across the parking lot towards her car, but he has not produced any such video. However, on November 19, 2021, he again sent several messages to Ms. Swan and the Respondent, this time after midnight, setting out his alleged concerns relating to the Respondent’s presentation on November 14, 2021 for the first time. He relied on those alleged concerns to dictate that commencing on Sunday November 21, 2021, he would be keeping Eliza in his care every week from Sunday at 10:00 a.m. until Thursday evening at 7:00 p.m. He stated that he was no longer in agreement that the current court-ordered parenting terms were providing the “meaningful relationship” that Justice MacLeod intended for Eliza, and relayed information about the daycare arrangements that he had made for Eliza during his planned extended parenting time with her. He acknowledged that he had confronted the Respondent about being intoxicated on November 14, 2021 at the parenting exchange on November 19, 2021, and that he had been pressuring her during exchanges to have extended overnight parenting time. He suggested that the Respondent needed to make Eliza a priority “over her leisure, work, attitude, wants and wishes for herself,” and that her misguided views of him were based on her own anxieties. He added that Eliza would “enjoy a level of consistency that she has rarely had with your client since I left her abuse and will be introduced to being an integral member of a social society as children should be at her age.” He suggested that the Respondent would be permitted to see Eliza during his time provided that she “gets acquainted with Eliza’s real needs and wants.”

16. On November 21, 2021, the Applicant also sent a text message to the Respondent’s best friend, Rachel Chabot, reiterating his intention to keep Eliza from Sunday morning until Thursday evening going forward, and threatening that the Respondent would lose Eliza “if she doesn’t smarten up really fucking fast.”

38As I have previously noted, the Applicant did not respond to a request from Ms. Swan for confirmation that he would abide by the court order after his emails of November 19, 2021, and therefore the Respondent has not made Eliza available for parenting time since that date. Ms. Swan advised the Applicant in correspondence dated November 23, 2021 that she would be bringing a motion seeking to change his parenting time to supervised visits only.

39The Applicant’s conduct since September 10, 2021 in relation to his parenting time and his communications to Ms. Swan and the Respondent constitute family violence within the meaning of section 18(1) of the Children’s Law Reform Act. The communications have often been inappropriately aggressive, demanding and threatening. While many of the comments have been directed towards Ms. Swan, they have been sent to the Respondent as well and have been clearly designed to destroy a solicitor client relationship that the Respondent considers to be critical to ensure the safety and wellbeing of herself and her two children. In this sense, the communications amount to a pattern of threatening, coercive and controlling behaviour towards the Respondent. The Applicant has also been demanding and coercive with the Respondent during parenting time exchanges and has referred to her in derogatory terms in the presence of Eliza since September 10, 2021. All of this behaviour has been extremely destabilizing for the Respondent and in turn, for Eliza. The Respondent has been fearful during every visit that the Applicant would not return Eliza to her care, and she has found the parenting time exchanges to be extremely nerve-wracking. Her concerns respecting the Respondent’s mental health and abusive conduct have been so significant that she has taken time off work and is residing with family members in an attempt to cope with the situation.

40Unfortunately, the Applicant’s inappropriate conduct since September 2021 is not isolated in nature; the evidence indicates that the Applicant has a long-standing history of engaging in family violence. As I have discussed, the Respondent states that he has been emotionally and verbally abusive and controlling towards her throughout their relationship and since the separation. She has provided a detailed description of two occasions, in 2019 and 2020, when he exhibited extremely violent and frightening behaviour in the presence of the children Cora and Eliza. He has been verbally abusive towards Cora, and the evidence indicates that he was also verbally abusive towards his older special needs son. The child Eliza would have been very seriously harmed in September 2020 if the Respondent had not intervened during the incident between the parties to prevent the stroller from toppling over.

41The evidence before me raises serious concerns that the Respondent is either suffering from significant mental health difficulties or experiencing ongoing problems with substance abuse. The Respondent’s evidence respecting his history of significant substance abuse problems, associated with volatile and aggressive behaviour, is very credible, particularly given that he has been convicted of two charges of impaired driving. It appears that he has only recently had his driver’s licence reinstated, and that he can only drive his vehicle if he tests negative for alcohol on a breathalyzer machine.

42The Applicant does not acknowledge any of the concerns outlined above. There is no evidence that he has engaged in any counselling or consistent, long-term substance abuse treatment and relapse prevention services, or that he recognizes a need to do so. He denies having ever subjected or exposed Eliza to any abuse, and he claims that there have been no concerns about his parenting time with her since September 2021. There is no independent evidence about how those visits have gone, but significantly, the Respondent states that Eliza has begun to exhibit uncharacteristic violent behaviour since the visits began, including a recent incident when she kicked the family cat. The Applicant admits that he is a “difficult and cantankerous” person, as MacLeod J. described him in his endorsement of September 10, 2021, but he claims that his conduct has been justified based on his concerns about the Respondent. First, as discussed above, he alleged that the Respondent was intoxicated at the parenting exchange on November 14, 2021. The Respondent had a credible explanation for her presentation that day, and there is no independent evidence to corroborate the Applicant’s allegation. Furthermore, there is no evidence that the Respondent has a history of inappropriate alcohol use. The Applicant also alleged on November 10, 2021 that the Respondent had used cocaine the previous weekend, without providing any proof whatsoever in support of this serious allegation. The Applicant further claims that the Respondent has engaged in a mission to alienate him from Eliza, and that his conduct is attributable to his frustration with this alleged alienating behaviour. He also accuses Ms. Swan of being complicit in this alienation by representing the Respondent in this proceeding. I do not accept his claims of alienating behaviour by the Respondent. The material before me supports a finding that the Respondent has had very legitimate concerns about the Applicant’s substance abuse, mental health, abusive conduct and unpredictable violent outbursts throughout the parties’ relationship and since their separation. The Applicant’s inappropriate conduct has been directed not only towards the Respondent but also to third parties, including Ms. Swan and the staff of Brayden. Despite these concerns, the Respondent has made numerous attempts during previous separations and since the parties’ final separation in September 2020 to ensure that the Applicant maintains a meaningful relationship with Eliza. She initially facilitated parenting time in her presence, despite the history of family violence and the stress that ongoing contact with the Applicant caused her. She agreed to parenting time supervised by Brayden, but the Applicant completely sabotaged efforts by that agency to serve him and the child. Since September 10, 2021, she has attempted to work cooperatively with the Applicant to accommodate some of his parenting time requests, only to be met with aggressive and vitriolic responses. She continued to permit the Applicant to have his parenting time until November 21, 2021 despite his numerous threats to keep Eliza from her at the end of his time. Notwithstanding her ongoing serious concerns, she has proposed supervised parenting time in her cross motion rather than requesting a cessation of contact altogether. The Respondent’s conduct towards the Applicant in regard to parenting matters has in my view been beyond reproach.

43By way of summery, having carefully considered all of the evidence and the concerns described above, I conclude that it is in Eliza’s best interests that the Applicant’s parenting time be limited to visits supervised by either Thrive Counselling or the Society if it consents to providing supervision, and no more than twice per week for two hours. The attempt to implement unsupervised parenting time has enabled the Applicant to perpetuate his history of family violence against the Respondent. It has caused a great deal of distress and disruption for Eliza’s primary care-giver, which has in turn been detrimental to Eliza’s overall well-being and stability. Eliza has been showing signs of emotional distress since the unsupervised visits began in the form of violent behaviour that she never exhibited in the past. There are in my view very significant concerns about either the Applicant’s mental health or ongoing substance abuse issues. He presents as incapable of regulating his emotions and reactions appropriately on a consistent basis. In the past, he has insisted that there is no need for him to refrain from consuming alcohol or marijuana while in a care-giving role. He has a history of violence and emotional and verbal abuse towards family members when he is intoxicated. Given his negative view of the Respondent and the numerous derogatory comments that he has made about her in the email communications and his personal notes since September 2021, there are very serious concerns that he would make negative comments about the Respondent to the child during unsupervised visits. He cannot be trusted to abide by a court order permitting him unsupervised time or to return Eliza to the Respondent at the end of his parenting periods. In addition, he has begun to make very serious unsubstantiated allegations of substance abuse by the Respondent. He does not acknowledge any of these concerns and has not demonstrated a willingness to engage in services to resolve them. Having regard for all of these concerns, the Applicant simply cannot be trusted to have unsupervised parenting time with Eliza in a manner that supports her safety and well-being. Moreover, I conclude that the supervision must be either by the Society, if it consents, or a professional supervision service or agency. Neither the Respondent nor Brayden have been able to manage the Applicant’s controlling, coercive and disruptive behaviour in relation to parenting time, and therefore I conclude that supervision by a family member or another member of the community would simply result in severe stress for that person and more challenges and chaos for this family. In fact, given the present state of affairs, I have serious reservations as to the ability of any supervised parenting time agency to manage the Applicant’s behaviour and demands more successfully than Brayden. Time will tell whether these reservations are well-founded, and it is my sincere hope that the Applicant will be more cooperative this time around with respect to the supervision services that are implemented.

44I have considered the Respondent’s request for a restraining order. She bases this request on the concerns respecting family violence and her claim that the Applicant has been driving past her home and the residence of the maternal grandmother, who cares for Eliza while the Respondent works. The evidence does not satisfy me that the Applicant has engaged in stalking behaviour in the vicinity of the two residences. He acknowledges having driven by the residences on November 21, 2021 in an attempt to locate Eliza, and on one other occasion in front of the Respondent’s home. Given that I am ordering supervised parenting time, there will be no need for the parties to have face to face contact, and this will alleviate some of the concerns respecting the Applicant’s abusive conduct towards the Respondent. I am of the view that the remainder of the concerns can be addressed at this point by way of a general order prohibiting the Applicant from being within 100 meters of the Respondent’s place of residence, her place of work and the home of the maternal grandmother Faith Coupland, and requiring that any communications between the parties be either through counsel or a third party agreed to in advance in writing between the parties. I am including terms in my order aimed at ensuring that the Applicant’s communications with counsel are civil. I am also ordering that if the Applicant breaches these terms regarding communication, the Respondent may apply for an order for costs in connection with each breach pursuant to Rule 1(8)(a) of the Family Law Rules. I emphasize that if the Applicant does not comply with these terms, or if he engages in any further type of intimidating conduct towards the Respondent, then the Respondent may to apply to this court any day of the week on an urgent basis to renew her request for a police enforced restraining order.

VI. TERMS OF ORDER TO ISSUE

45Based on the foregoing, there shall be a temporary order as follows:

1. The Applicant’s motion is dismissed.

2. The order of MacLeod J. dated September 10, 2021 is varied by substituting paragraphs 1 to 7 of that order with the terms of this order.

3. The Applicant shall have parenting time with the child Eliza Anne Marie Coupland, born May 8, 2019 (“the child”) supervised by the Children’s Aid Society of Hamilton, if it consents to supervise, and/or Thrive Counselling. The time and frequency of this parenting time shall be as can be accommodated by the Society and/or Thrive Counselling, but no more than twice per week for two hours on each occasion.

4. The Applicant shall be responsible for all costs associated with his supervised parenting time with the child.

5. The parties shall forthwith take all necessary steps required to implement supervised parenting time at the Society and/or Thrive Counselling as soon as possible.

6. The Applicant shall not consume alcohol or any illicit substances during his parenting time or for at least 24 hours prior to the commencement of his parenting time periods.

7. The Applicant shall not attend within 100 meters of the Respondent’s residence located at 63-10 Angus Road, Hamilton, Ontario, her place of work located at 393 Millen Road, Stoney Creek, Ontario or the home of Faith Coupland located at 43 Lake Avenue Drive, Stoney Creek, Ontario.

8. All communications between the parties shall be through counsel or another third party agreed upon in advance in writing. The Applicant’s communications with counsel and any third party agreed upon for communication purposes shall be subject to the following terms and conditions:

a) His comments shall be strictly limited to issues pertaining to the child;

b) His messages shall be brief, informative, and courteous; and

c) Without limiting the generality of subparagraphs (a) and (b), he shall refrain absolutely from making derogatory comments about counsel, any agreed upon third party or the Respondent, and shall refrain from setting out personal opinions regarding their character.

9. In the event that the Applicant breaches the terms set out in paragraph 8, the Respondent may apply for an order for costs in connection with each breach pursuant to Rule 1(8)(a) of the Family Law Rules.

10. If the parties are unable to resolve the issue of costs of this motion, any party seeking costs shall by no later than December 31, 2021 submit a written request to the Trial Coordinator to schedule a 30 minute hearing before me to address costs. If neither party submits a written request for a hearing date by December 31, 2021, there shall be no costs payable by either party. Any costs hearing shall occur by no later than January 31, 2022. For the purposes of any costs hearing, the Respondent shall serve and file Costs Submissions of no more than 2 pages, a Bill of Costs and any Offers to Settle by no later than 7 business days prior to the hearing, and the Applicant shall serve and file the same materials by no later than 4 business days prior to the hearing.

11. Counsel for the Respondent shall draft this order. Approval of the draft as to form and content is dispensed with.

12. Court staff shall email this endorsement to Ms. Swan and Ms. Birt.

Released: December 13, 2021

Armstrong v. Coupland, 2021 ONSC 8186

COURT FILE NO. FC 404/21