COURT FILE NO.: FS-19-248
DATE: 2022 Jan 11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Sean Douglas Waterhouse
Applicant
– and –
Amy Rebecka Waterhouse
Respondent
Nolan Wilson, for the Applicant
Danica E. Maslov, for the Respondent
HEARD: September 7, 8, 9, 10, 13, 14, 15 and 16, 2021
The Honourable R. J. harper
Issues
a. Divorce
b. Parenting Decision Making
c. Parenting Time
d. Child Support
Background
[2] The Applicant, Sean Douglas Waterhouse (Sean), was born September 9, 1978. He is presently 43 years of age. He works as a mechanic with the City of Hamilton. His earns income for support purposes of $82,370.00
[3] Sean has chosen to work the night shift. His hours are from 11 pm until 7 am. According to Sean, his employer is flexible with his starting earlier and leaving later.
[4] The Respondent, Amy Rebecka Waterhouse (Amy), was born on January 2, 1978. She is presently 44 years of age. She works as a manager at the Youth Probations Services with the Ministry of the Solicitor General in London, Ontario. She earns $88,176.00 per annum. Amy states that she works from 8:30 am to 4:30 pm from Monday to Friday. She also states that her employer is flexible with her starting and finishing times.
[5] Neither Sean, nor Amy provided evidence from their respective employers about the claimed flexibility in their working hours.
[6] Sean and Amy started to cohabit in 2002 and were married on August 21, 2004.
[7] They had two children, namely, Tyler Joseph Waterhouse (Tyler), born September 20, 2006. He is 15 years old. The youngest child is Dennis Reid Westerhouse (Reid). He was born on November 23, 2012. He is almost 9 years of age.
[8] Sean and Amy separated on or about November 24, 2019.
[9] At the time of separation, Sean and Amy resided in their matrimonial home located at 34 Ruffian Road, Brantford Ontario with their two children.
[10] At their separation, Tyler and Reid attended Notre Dame Catholic School in the City of Brantford.
The Allegations of Domestic Violence
[11] According to Amy, their marriage was good until approximately three years prior to their separation. She stated that over those last three years Sean had progressively become aggressive to her verbally, emotionally, and physically. Much of her evidence focused on incidents of violence that allegedly occurred between her and Sean. Sean denied that he was ever verbally or physically abusive to Amy. He sated that they did argue and they both would yell at each other. He stated that they both said derogatory things to each other from time to time, However, he denied that he ever threatened her or acted in an aggressive and physically violent manner as she alleged.
[12] I do not intend to make findings with respect to the multiple alleged incidences of violence that Amy claims that Sean perpetrated against her. However, I will make findings of fact on the material incidents raised in the evidence.
[13] I find that both the Sean and Amy did have a highly conflictual relationship that started approximately three years ago.
[14] The children told the Office of the Children’s Lawyer (“OCL”) investigator, Mr. To, that they often heard their parents arguing. Given the nature of the allegations made by Amy, it is significant that the OCL report did not have any references to the children relaying to Mr. To that they had observed any incidents of physical violence between their parents.
Material Incidents of Violence Alleged by Amy
Hockey Tournament in Ottawa in 2017
[15] Amy testified that in 2017, she and Sean attended a hockey tournament in the City of Ottawa that involved Reid. They stayed at a local Ottawa hotel. Amy alleged that Sean was physically violent toward her on this occasion. According to Amy, while they were in the hotel, Sean had been drinking alcohol and they got into an argument. She stated that Reid was in the bed beside them when Sean dumped a glass of beer all over her during the course of the argument. According to her, he then got a shoe and threw it at her but missed her and the shoe hit Reid.
[16] No further particulars were given by Amy and Sean denied that this violence ever occurred.
Altercation in the Matrimonial Home Following Children’s Hockey at the Arena, in or about August or September 2018
[17] Amy stated that an argument started between her and Sean while they were in the arena. According to Amy, Sean was berating her at the arena in public. Amy stated that when they arrived home, Sean yelled at her and the children to get out of the car and go in the house. Shortly after they entered to home, she could hear a crackling sound. She later saw the oven door was broken and the dishwasher was dented.
[18] Amy went on to state that Reid led her to the bathroom door while telling her that she had to see something. She stated that she saw the bathroom door had a big hole in it. She stated that she got her phone and took a picture of the hole in the door.
[19] Amy stated that she told the children to pack some things as they were going to leave. According to Amy, Sean said the she was not going to take the children and he pushed her with his two fists on her chest hard enough that she fell backward onto the sidewalk.
[20] Amy called the police. The police arrived and interviewed each of them separately. The police also talked to the children, not in the presence of the parents. A Children’s Aid Society (“Society”) worker attended and interviewed the children separately.
[21] When the police left, it was determined that Tyler wanted to stay at the home with his father and Reid would go with his mother to his maternal grandmother’s home.
[22] Amy testified that she did not show the police the picture that she had just taken of the hole in the bathroom door. She stated that although she was interviewed alone, she was afraid of Sean and that is why she did not show the police. She did not provide that evidence to the police at any time after the alleged event.
[23] She also testified that she did not tell the Society worker everything as she was afraid the Sean could hear her. She stated that if Sean were not around, she would have told the worker. However, she admitted that she never tried to contact the Society worker at any later time when Sean was not around.
[24] After approximately four days, Amy and Sean reconciled and each indicated that they would get counselling and also agreed to arrange for counselling for the children.
June 19, 2019 Incident at the Matrimonial Home
[25] On or about June 19, 2019, Amy claimed that Sean came into their bedroom and they were arguing. She stated that he threw a glass of water on her and lifted the mattress up in a manner that caused her to roll off the bed. She called one of her friends, who was the girlfriend of Sean’s best friend. Amy told them to come and get Sean or she would call the police. She stated that he punched her in the chest so hard that it left bruises and it hurt for days after.
The Pictures of the Alleged Bruises and Alleged Damage to the Home
[26] Amy sought to have several pictures that she stated showed the progression of bruising on her after the altercation with Sean. I did not allow them to be entered into evidence. In the voir dire on their admissibility, she indicated that she took all of the photographs on either an iPhone 4 or an iPhone 6 that she had at the time. According to her, she then later erased the pictures from the phones. She alleged that she feared that Sean would erase them from her phone. She went on to state that before erasing the pictures, she put all of the pictures on a USB device in order to preserve them. She never produced that device to Sean’s lawyer prior to trial nor did she seek to enter that device into evidence.
[27] Amy could not recall when she erased the pictures on her phones. She could also not recall when she transferred them to this USB device. Amy never showed the pictures to anyone who investigated any of the incidents, including the police, the Children’s Aid Society or the OCL investigator, Mr. To.
[28] It is most concerning to me that Amy gave evidence that she had this USB device at the time that she was interviewed by the OCL investigator. She never showed him any of the contents of the device. The report of the OCL stated that, although Amy made multiple allegations of abuse and of alcohol and drug abuse by Sean, she did not provide any objective evidence to support her allegations. As a result of Amy’s actions in withholding this evidence prior to trial, I find that her credibility with respect to all of the alleged incidence of violence is severely damaged.
[29] Amy did not provide any evidence that would, in any way, authenticate the pictures, other than her oral evidence. She did not provide any metadata that would allow the court to determine when the pictures were taken and under what circumstances. In addition, she claimed to have erased all of the pictures form her phones, prior to creating this USB.
[30] Amy had multiple photographs of what she alleged was damage that Sean caused to their bedroom door, other walls in their home, and the garage door.
[31] I did not allow those photos to be admitted for the same reason I did not allow the photos of the alleged physical injuries to Amy. Not only did she not provide this information to the multiple professionals investigating the allegations, she did not disclose them prior to trial.
The Incident that Immediately Preceded Final Separation
[32] On or about November 23, 2019. Amy and Sean were going to attend a friend’s birthday party.
[33] The children were going to stay at their maternal grandmother’s home, at least on that evening. This issue is contested. Sean claims that this was a prearranged plan for Amy to separate and to leave with the children. Amy stated that her mother was only going to babysit them for one evening and she only packed one change of clothing for each and their pajama bottoms.
[34] On the evening of November 23, 2019, Sean and Amy went to the friend’s birthday party. They stopped over at different friends’ home for drinks and then proceeded to the birthday party where they each had more drinks of alcohol. They went back to the home of the friends they were with before the party and had more drinks before they took a taxi home.
[35] According to Amy, Sean had been berating her and was yelling at her upon their return home. She stated that she went into the master bedroom and he followed her all the while yelling at her and berating her. She stated that once again he threw water on her and lifted the mattress up to the point that she fell off the bed. After that she went to sleep in one of their children’s bedroom. Amy stated that she could still hear Sean yelling and throwing things around the house.
[36] According to Amy, on the morning of November 24, 2019, Sean continued to be aggressive toward her. She stated that she had enough, and she was now determined to separate form Sean. She left to stay with her mother.
Emotional Turmoil Swirling around the Children
[37] In this case, Amy made multiple allegations of emotional and physical abuse against Sean. Sean denied every one of the allegations and responded by alleging that Amy was attempting to marginalize him with his children. This was a major and constant theme of the evidence.
[38] Unfortunately, this theme appears in all too many cases dealing with high parental conflict.
[39] High conflict cases must be approached with a view to understanding the complex family dynamics. Findings of abuse do not end the search for what is in the best interest of the children. Neither does a finding of alienation or minimization of the other parent. Such findings are important but the search for what parenting scheme would best suit the children is much more comprehensive.
[40] In this case, I find that some of the professionals involved did not perform their tasks to the standards that should be expected of them. That contributes to the maximizing the conflict when it should be a catalyst to minimizing the conflict. I will comment further later in these reasons when making reference to the counselling services involved.
[41] At the center of the case is the credibility and reliability of the parents. Both parents testified at trial. Both parents were interviewed and observed by the investigator from the OCL.
Credibility and Reliability
[42] In the case of A.M. v. C.H., 2018 ONSC 6472, Nicholson J. reviewed some of the relevant considerations when assessing the credibility of a witness commencing at para 88:
[88] In Christakos v. De Caires, 2016 ONSC 702, 2016 CarswellOnt 1433, at para. 10, I summarized some aspects of the credibility assessment as set out in Re Novak Estate, 2008 NSSC 283, 269 N.S.R. (2d) 84, at paras. 36-37:
There are many tools for assessing credibility:
a) The ability to consider inconsistencies and weaknesses in the witness’ evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony and the testimony of other witnesses.
b) The ability to review independent evidence that confirms or contradicts the witness’ testimony.
c) The ability to assess whether the witness’ testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133, it is “in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions”, but in doing so I am required not to rely on false or frail assumptions about human behaviour.
d) It is possible to rely upon the demeanour of the witness, including their sincerity and use of language, but it should be done with caution (R. v. Mah, 2002 NSCA 99 [at paras.] 70-75).
e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. R. v. J.H., 2005 CanLII 253 (ON CA), [2005] O.J. No.39 (OCA) [at paras.] 51-56). There is no principle of law that requires a trier of fact to believe or disbelieve a witness’ testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness’ evidence, and may attach different weight to different parts of a witness’ evidence. (See R. v. D.R. 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291 at [para.] 93 and R. v. J.H. supra). [Emphasis omitted.]
Credibility and Reliability of the Evidence in this Case
The Mother, Amy Waterhouse
[43] I find that Amy was often evasive and inconsistent in her testimony. She also stuck rigidly to her testimony with respect to certain incidents when it was clearly pointed out by other evidence that she should not.
[44] A prime example of her rigidity and focus on demeaning Sean was her testimony with respect to Justin Bell. Justin Bell was part of Sean’s plan of care for the children. I find that his involvement as part of Sean’s plan came late and was not introduced in the manner that it should have been introduced. I will comment on that shortly in these reasons. However, Amy was blatantly misleading about her knowledge of Justin Bell.
[45] In her direct examination, she stated: “I knew of him”. She meant to give the impression that he was an unknown entity who was only recently introduced on the family scene and that contributed to the lack of depth to Sean’s plan of care.
[46] It was not until cross-examination that she admitted that she knew Justin Bell for approximately 18 years by the time of this trial. Not only did she not just “know of him”, Justin Bell actually lived in Sean and Amy’s house on two separate occasions. Once, as an actual boarder with extensive use of the home, and once as a tenant in a separate part of their home. During her cross-examination, she also admitted that she and Justin Bell got along well during the times that he lived in their home.
[47] Despite her obvious misrepresentation, Amy attempted to deflect her original statement by claiming that she was referring to the fact that they were not friends. I reject this lame attempt to minimize her misrepresentation.
[48] Amy’s testimony was replete with inconsistencies and a lack of logical flow and coherence.
[49] She testified that she took pictures of injuries to herself and damages to their home in order to document the abuse that she suffered. However, she did not show any of the professionals assigned to investigate the incidents. She did not show the police nor the Society when she had the opportunity of being interviewed separately. Most importantly, she did not attempt to contact them later when Sean would have not been around.
[50] It is very significant that there is no reference in the OCL report to the fact that Amy had shown such objective evidence to the OCL investigator. To the contrary, Mr. To stated in his report that she did not provide any objective evidence of her allegations of physical abuse or drug and alcohol problems. In light of the fact that she admitted that she had this USB device with the documentary proof on it when she was interviewed by Mr. To, this is all the more concerning when considering the veracity of her abuse allegations.
[51] If she had provided this evidence to Mr. To and he had not included it in his report, she should have filed a dispute to the report. She did not file a dispute. She also had Mr. To on her witness list. She decided not to call him as a witness despite his statement in his report that Amy had no corroboration of her allegations of domestic violence. I draw an adverse inference against her on this issue. I find that Amy did not show the OCL investigator any of the photos and any other documentation that might corroborate her allegations of abuse.
[52] It is also very significant that the children never told any of the professionals that interviewed them that they saw or heard any physical or emotional abuse as alleged by Amy. The only disclosure of the children was that they heard their parents arguing frequently.
[53] I do not find Amy is a credible witness. Allegations of physical and emotional violence are serious. The impact of such violence on children is well known. Given Amy’s lack of credibility, I cannot find on a balance of probabilities that any of the incidence that she alleged occurred.
Credibility of Sean
[54] Sean described his marriage with Amy as one that became toxic in the last three years. Since separation between him and Amy, it was full of conflict and mistrust. They had little to no civil communication and rarely did Amy share information about the children.
[55] Amy gave Sean little credit for day to day parenting prior to their separation. She claimed that Sean was often intoxicated when he got home from the night shift. She indicated that she even had to rearrange her work schedule in order to leave later in the morning so that she could take the children to school. She claimed that she could not trust that he would be sober when driving them in the morning. She did not call any witness to corroborate this.
[56] Sean denied that he was ever intoxicated when he cared for the children. He stated that since he started working the night shift approximately four years ago, he would come home and assist the children with breakfast and getting ready for school. He would often take them to school. However, the school was only two blocks away from their home and the children could walk to school. I accept Sean’s testimony in this regard.
[57] I find that Sean was credible with respect to his denials of the alleged domestic violence.
Hockey Clashes by the Parents
[58] On one occasion, Sean and Amy had a dispute over parenting time. The issue was whether Sean could be at one of the children’s games. Sean stated that Tyler had a game one evening at 7 p.m. and he dropped Reid off but wanted to take Tyler to the game. According to Sean, he had missed far too many games.
[59] Sean stated that Amy showed up at the arena and made an awful scene in front of the child. Sean stated that when leaving the arena Amy was sounding the horn of her car very loudly. She followed Sean in her car at a high rate of speed and almost ran him off the road. He also stated that Amy was following his car too close. Sean claims that the child was terrified.
[60] This incident was supposed to be a simple parenting exchange at a child’s hockey game
Incident at Cambridge Hockey Game
[61] Sean was to bring a counselling form to one of the children’s hockey games in Cambridge and provide it to Amy. He forgot the form and told her that he had forgotten the form and would provide it to her at a later time.
[62] According to Sean, Amy came to his car and started pounding on the window. He stated that he was “creeped out” by her conduct. He tried to leave and when he did, Amy punched at the window of the driver’s side. When he put the car in reverse, she smashed and broke the review mirror.
[63] Amy admitted that she approached his car. She said it was a calm approach and that she was just asking when the counselling form was going to be given. She denied punching the window and she claimed that the review mirror broke when it hit her arm as he was trying to reverse.
[64] Sean’s version of events is corroborated by his girlfriend, Lisa Roberts. I found Ms. Roberts to be a credible witness.
[65] Ms. Roberts stated that she was in Sean’s car when Amy approached the car and started to pound her fist on the driver’s side window. She then punched the driver’s side mirror. She was also terrified during this incident. I accept Sean’s and Lisa Roberts’ version of this event.
[66] There were other altercations in front of the children and other members of the children’s hockey team. The incidents are yet further examples of these children having been caught in the middle of their parents’ turmoil.
The Children’s Schooling
[67] Before separation, the parents had made a joint decision to put the children into the Catholic School Board system. Neither parent were followers of the Catholic religion, nevertheless they felt that this type of education was good for their children.
[68] After separation, Amy bought a house that was outside of the children’s school district. She claimed that as a result the children could not continue at their present school. She transferred them to a public school without informing Sean.
[69] Sean stated that after he found out about the change, he made inquiries about the children’s ability to stay at their existing school. He was informed that it was possible after an application was made to the Board. Amy made no efforts to make such an application.
Counselling
[70] Amy enrolled the children in counselling at the Brant Mental Health Solutions (“BMHS”). This was done by Amy with no information given to Sean in advance. Amy chose that counselling service as it was recommended to her by her own personal counselor at a women’s shelter in Hamilton. Amy was seeing a counsellor there to deal with issues she claimed to have as a result of being a victim of domestic violence.
[71] Part of the background that Amy gave to the BMHS was that the children’s father was physically and emotionally abusive to her and that the children had been exposed to this. She wanted the children to receive counselling so they would not model their father’s behaviour.
[72] She also noted that the counselling service should be aware that her husband would be aggressive with them once he finds out that the children are getting counselling from their service.
[73] Amy Dougley is the owner of BMHS. She swore an affidavit that was filed with her direct examination at the trial. She was cross-examined on this affidavit. During the course of her testimony, it was learned that she took contemporaneous notes of her discussions with Amy, Sean and other staff about their interaction with both parents. Ms. Dougley is not a counsellor. She had no education or experience that would qualify her to be a counsellor. She is a businesswoman who ran a service that facilitated counselling services.
[74] I ordered that she produce her notes. Once her notes were produced, it became clear that the affidavit that she filed with the court was misleading with respect to interactions that Sean had with BMHS.
[75] In her affidavit, she swore that Sean had contacted BMHS and was aggressive with staff. He was demanding to know why BMHS would get involved with counselling his children without contacting him in order to get his consent.
[76] Her affidavit went on to state that Sean was aggressive and that his aggression escalated over time.
[77] Her affidavit reads in part:
Mr. Waterhouse was very aggressive and threatening in his communications with us. It got to the point where the staff had to escalate the phone calls from Mr. Waterhouse to me directly due to the nature of the threatening communications.
In the phone calls, Mr. Waterhouse would state things like "I am not going to let this happen." "You are illegally providing services for my children." "The children are being brought into counselling without my consent." "This is never going to happen."
Mr. Waterhouse was advised several times to contact his lawyer and go through the proper channels if he had an issue with the children's counselling.
We never received any correspondence or communications from Mr. Waterhouse's lawyer addressing any issues.
Over time, Mr. Waterhouse became more and more agitated with his communications to us. He was extremely persistent that the counselling for the children should not occur.
The children's therapist had to be notified right away as there was a possibility that Mr. Waterhouse would show up to the children's therapy session to disrupt it.
It is important for the children to feel safe when coming to counselling
We had to implement lockdown procedures to ensure the safety of the staff and the children in case Mr. Waterhouse indeed decided to show up
[78] However, her notes reflected that Sean did contact BMHS. He was concerned that no one had even tried to contact him to speak to him about the counselling. No one even tried to get his consent. He wanted to know what type of counselling services were being offered. He asserted that it was not legal for BMHS to provide counselling without both parents’ consent.
[79] What Ms. Dougley left out of her affidavit was that once Sean was given general information about the services that MBHS provided, he not only calmed down, but he also apologized to the staff member for his aggressive tone.
[80] It is very concerning that this significant misrepresentation was advanced by Ms. Dougley. She was willing to leave the court with the impression that Sean was not only aggressive but also that his aggression increased over time. Her affidavit claimed that lockdown procedures had to be implemented to ensure the safety of the staff and the children. This was blatantly false. It was not until her notes were produced that her misrepresentation was revealed.
[81] Ms. Dougley’s conduct is the type of conduct that contributes to the distortion of the reality of the children toward a parent. She was clearly aligned with the mother and she gave a one-sided representation of the father as someone who needed to be feared. Her conduct also goes a long way to misdirecting the court on what the real needs of the children are. Such conduct cannot be tolerated.
[82] The comments that I made in Children’s Aid Society of London and Middlesex v. C.D.B., 2013 ONSC 5556 have application in this case, commencing at para. 30:
[30] Children have varying degrees of input to their fate in family litigation. Their future relationships with their parents, their extended family and their own siblings are being shaped and often they are only watching like spectators and often with an obstructed view. That is why all professionals who play a role in child protection and custody matters must perform their tasks in a thorough, objective and skilled manner. This includes assessing and reassessing their positions when appropriate. I will deal with this in greater depth later in these reasons. Suffice it to state, at this stage, I find that many professionals accepted allegations as fact without scrutiny and allowed themselves to be influenced and manipulated.
[83] I can only repeat what I said in the above case at para. 377:
[377] Domestic violence is an evil in our society and a serious concern for any person caught up in these horrible and dangerous relationships. The toll on children for them to live in a home in which they even witness emotional and physical abuse is devastating. Systems and processes are in place and need to be in place in order to protect women and children from this horror. However, when false allegations are made and professionals do not conduct themselves in a manner that is objective, professional and thorough, the systems and processes that are needed are damaged and women and children who really need them become exposed to harm.
[84] The allegations of domestic violence have not been proven. However, the unbroken cycle of mistrust between the parents continues. Sean’s belief that Amy has been conducting herself in a manner that is directed to minimize and marginalize him as a father I find to be rooted in this family’s reality. This must stop. The needs of these children must be the sole focus of all parenting figures.
The Law and Analysis
Best Interests of Child
[85] The recent amendments to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) provide:
16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.
Primary consideration
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
Factors to be considered
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
i. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
ii. the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
Factors relating to family violence
(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following 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 their ability to care for and meet the needs of the child; and
(h) any other relevant factor.
Past conduct
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
Parenting time consistent with best interests of child
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
Parenting order and contact order
(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.
[86] I must be guided by the primary consideration to the children’s physical, emotional and psychological safety, security and well-being.
[87] I find the OCL report to be thorough. Despite the emphasis placed by Amy on the allegations of domestic violence, she did not dispute the findings nor the recommendations of the OCL report. Neither did Sean in any significant way. I accept many of the representations of Mr. To.
[88] In his report at page 10 he states:
Tyler and Reid appear to have developed strong emotional ties to Mr. Waterhouse as well as Ms. Waterhouse. During their interviews, they spoke positively about their parents and expressed closeness to both. Their interaction with Mr. Waterhouse and with Ms. Waterhouse were comfortable, warm and enjoyable. Tyler and Reid’s emotional ties to both parents were also supported by their views and preferences. They stated they would prefer to be able to spend equal time in the care of their mother and their father. If they were not able to be cared for by each parent on a 50-50 basis, they would prefer to reside primarily with their mother and have access to their father more than one evening a week and every other weekend.
[89] The OCL also pointed out that the conflict between the parents remains a major concern. They do not communicate well with each other. They continue to blame each other. Joint decision making regarding the children would “likely further their conflicts and may delay important decision-making.”
[90] Sean’s parenting plan has certain flaws. He has brought in a close friend of his, Justin Bell, to be a part of his plan of caring for his children. This part of his plan came very late in the process. It was only within the last couple of months before this trial started that Mr. Bell came on the scene.
[91] Mr. Bell testified at the trial. I find him to be a credible and straight forward witness. He is well known to the children. He has a daughter of his own that he shares parenting time with his ex-spouse.
[92] He is renting the unfinished basement of Sean’s home. However, he states that he has access to the rest of the home except for the bedrooms of Sean and his children.
[93] He stated that he will assist in the care of Sean’s children whenever he can. When Sean is at work during the nightshift, he is willing to be there for the children when needed.
[94] Sean’s girlfriend, Lisa, also testified. I find that she is a straightforward and credible witness. She testified that she has a good relationship with Sean. The fact that they have taken a “pause” in their romantic part of their relationship does not take away from the fact that she would be able to assist Sean in childcare from time to time.
[95] Sean’s father also testified. He is also available to assist. However, he does not feel that the children need constant care and supervision as the oldest child is 15. I find that Sean’s father is a resource to assist with the children. However, he would be a limited resource given his view of the oldest son being able to carry a larger role than he should have to.
[96] Amy is no longer residing with her mother. Her mother also testified. I find her to be less than credible. She is extensively aligned with her daughter and her evidence was all too often slanted in order to reflect that alignment instead of reflecting the reality of any incident that she relayed. She strongly believes that Sean has subjected her daughter to domestic violence. I find that this distorts her perception and her testimony.
[97] I find that neither Amy nor her mother are presently in a mindset to be able to maximize the contact and relationship the children have with their father and should have.
The Parenting Scheme in the Best Interest of the Children
[98] There are no solutions to this case that are without complications. I agree with many of the recommendations of the OCL
[99] Even multi-directional orders in cases like this are not enough. The parents need to successfully engage in counselling in order to be in a position to put their negative feelings for each other aside to successfully parent their children.
[100] Each parent has, for far too long, allowed their mistrust and negative feelings toward each other engulf their children. If this continues, this matter will be back in court. However, the continuous financially ruinous track of court proceedings is far less ruinous than the long term emotional and psychological impact on their children.
[101] The children need permission from each parent to love and enjoy their time with the other parent. They need parents who learn to communicate in a manner that allows for objective information flow about their children to each parent and meaningful consultation with the other parent.
[102] Both of these children need stability and certainty in their lives. That can only be achieved if their parents put themselves in a position to set aside their negative feelings about each other as a person and focus only on each other as parents who are valued and involved. In my view, that must be the purpose of the individual counselling that each parent must engage in.
Parenting Order
[103] Having regard to all the above findings and analysis, I make the following order:
a. Divorce Order shall issue.
b. The mother shall have the sole decision-making authority subject to the following terms and restrictions:
a. The mother shall inform the father in a manner that allows the father to have a meaningful opportunity to consider his input to all major decisions that impact on the children, including but not limited to the children’s education, health and welfare, religious participation.
b. The mother shall consult with the father on all major decisions as set out in (a) (i).
c. Either party may bring this matter back to the court for a review of the decision-making provision after 6 months from the date of this order.
d. This review shall consider the extent to which either party has made the expected gains in their individual counselling as ordered herein.
e. The review shall also consider the wishes of the children and their needs and ability of each parent to meet those needs at the time of the review.
f. All communication between the Applicant and Respondent shall be by way of AppClose.
Counselling
c. The mother shall engage in counselling that is intended to assist her in being able to set aside her negative emotional reactions about the father to be able to communicate with the father effectively as a parent.
d. The father shall engage in counselling that is intended to assist him in his being able to set aside his negative emotional reactions about the mother to be able to communicate with the mother effectively as a parent.
e. The children shall continue in counselling. The focus of their counselling must be to deal with their emotional and psychological reactions to their parental conflict and allow them the best possible opportunity to have a meaningful and loving relationship with both parents.
f. During the period when the children, Tyler and Reid, are in the care of either the Applicant or the Respondent, the parent having the children in his or her care shall make day-to-day decisions concerning the children.
g. In a health emergency, the parent with care of Tyler and Reid at that time shall make the treatment decision, on the advice of medical personnel. If a parent makes an emergency health decision, the parent who has made the decision must immediately contact the other parent.
h. Both the Applicant, Sean Douglas Waterhouse, and the Respondent, Amy Rebecka Waterhouse, shall have the same right and entitlement to information from third parties relating to the health, education, and welfare of Tyler and Reid without the necessity of any release, direction, or acknowledgement executed by the other parent. If necessary, either party will cooperate and execute any required authorization or direction necessary to enforce the intent of this clause.
i. Subject to policies and mandates of relevant public health authorities, both the Applicant, Sean Douglas Waterhouse, and the Respondent, Amy Rebecka Waterhouse, shall be entitled to attend school meetings and events, medical and health-related appointments, and recreational activities including sports games, practices, and award ceremonies. Both parents will be listed as emergency contacts at school for the children.
j. Tyler and Reid shall each continue to be enrolled in hockey through the Brantford Minor Hockey Association as per the children’s wishes.
Parenting Time
k. There shall be parenting time for the Applicant, Sean Douglas Waterhouse with the children, Tyler and Reid, on the following basis:
a. The children shall reside with the Applicant, Sean Douglas Waterhouse, every Monday and Wednesday from after school until 7:00 p.m.
b. The children shall then reside with the Applicant, Sean Douglas Waterhouse, on Friday from after school to Sunday at 7:00 p.m., and, thereafter, weekends of parenting time shall continue to alternate on a weekly basis.
c. Any other times as agreed upon by the parties.
d. The children, Tyler and Reid, shall be permitted to contact either the Applicant, Sean Douglas Waterhouse, or the Respondent, Amy Rebecka Waterhouse, whenever they wish while in the care of the other parent.
e. Parenting time exchanges shall be conducted at Zehrs Plaza at 310 Fairview Drive, Brantford, ON.
f. If either Tyler or Reid need to be picked up early from school, the parent scheduled to pick up the children from school on that day shall pick up Tyler or Reid early, as necessary, unless both the Applicant, Sean Douglas Waterhouse, and the Respondent, Amy Rebecka Waterhouse, agree otherwise in writing.
g. Each parent’s scheduled time with Tyler and Reid shall be subject to the following holiday schedule which overrides the regular schedule in the event of a conflict:
March Break: Tyler and Reid will stay with the Applicant, Sean Douglas Waterhouse, on Monday, Wednesday, and Friday from 12:00 p.m. to 7:00 p.m.
Mother's Day: If Tyler and Reid are not otherwise with the Respondent, Amy Rebecka Waterhouse, on this weekend, Tyler and Reid will stay with the Respondent, Amy Rebecka Waterhouse, on Mother's Day weekend, from Saturday at 7:00 p.m. until their return to school on Monday.
Father's Day: If Tyler and Reid are not otherwise with the Applicant, Sean Douglas Waterhouse, on this weekend, Tyler and Reid will stay with the Applicant, Sean Douglas Waterhouse, on Father's Day weekend, from Saturday at 7:00 p.m. until their return to school on Monday.
Summer Vacation: With respect to Tyler and Reid's Summer Vacation, each party will spend uninterrupted vacation time with Tyler and Reid as follows:
a. Tyler and Reid will stay with the Applicant, Sean Douglas Waterhouse, for three (3) weeks during the school summer vacation, with no more than two (2) weeks being scheduled consecutively. It is expected that some of this time will be spent by Tyler and Reid with the paternal grandparents, which shall not negate the right for the Applicant, Sean Douglas Waterhouse, to schedule such parenting time, nor engage a right of first refusal.
b. Tyler and Reid will stay with the Respondent, Amy Rebecka Waterhouse, for three (3) weeks during the school summer vacation, with no more than two (2) weeks being scheduled consecutively. during which time the Applicant, Sean Douglas Waterhouse's regular parenting time will be suspended.
c. In odd years, the Applicant shall have first pick and will communicate his desired weeks to the Respondent by February 1 of each year. The Respondent shall communicate her desired weeks by March 1st of each year. In even years, the Respondent shall have first pick and will communicate her desired weeks to the Applicant by February 1 of each year.
d. The Applicant shall communicate his desired weeks by March 1st of each year. Both parties shall communicate through AppClose a specific time of communication just prior to bedtime for the children to contact the other parent.
e. In making plans, each party will take into account Tyler and Reid's camp or other scheduled activities.
f. The parties shall provide to the other any vacation plans, including address and dates.
Christmas Eve/Morning and Christmas Day: The children, Tyler and Reid, will stay with the Applicant, Sean Douglas Waterhouse, from 12:00 p.m. on Christmas Eve until Christmas Day at 12:00 p.m., and with the Respondent, Amy Rebecka Waterhouse, from 12:00 p.m., on Christmas Day until 9:00 p.m. on Boxing Day in odd-numbered years, and with the Respondent, Amy Rebecka Waterhouse, from 12:00 p.m. on Christmas Eve until Christmas Day at 12:00 p.m., and with the Applicant, Sean Douglas Waterhouse, from 12:00 p.m. on Christmas Day until 9:00 p.m. on Boxing Day in even-numbered years.
Christmas Break: the Applicant’s regular parenting schedule shall be expanded as follows:
a. Every other weekend from Friday at 12:00 p.m. to Sunday at 7:00 p.m.
b. Every Monday and Wednesday from 12:00 p.m. to 7:00 p.m.
- New Years’ Eve/New Years’ Day: the Applicant shall have parenting time with the children on New Years’ Eve from 5:00 p.m. until New Year’s Day at 12:00 p.m. in odd numbered years and the Respondent in even numbered years. The Respondent shall have parenting time with the children from January 1, 2021 from 12:00 p.m. to 7:00 p.m. in odd numbered years and the Applicant in even numbered years.
a. If the Applicant does not work the night of New Years’ Eve, the Applicant shall have parenting time with the children from 12:00 p.m. on New Years’ Eve until 7:00 p.m. on New Years’ Day.
Easter Weekend: In even numbered years, the Applicant shall have parenting time with the children from the Friday at 12:00 p.m. until Monday at 7:00 p.m. In odd numbered years, the Respondent shall have parenting time with the children from the Friday at 12:00 p.m. until the Monday at 7:00 p.m.
Thanksgiving Weekend: The Respondent shall have parenting time with the children on even numbered years and the Applicant on odd numbered years from the end of school from Friday after school until Monday at 7:00pm.
Family Day Weekend: The Respondent shall have the children in even numbered years and the Applicant shall have the children in odd numbered years, from Friday after school until Monday at 7:00 p.m.
Victoria Day Weekend: The Respondent shall have the children in even numbered years and the Applicant shall have the children in odd numbered years, from Friday after school until Monday at 7:00 p.m.
Non-Holiday Parenting Time: Non-Holiday parenting time with the children, Tyler and Reid, during all other holidays or long weekends shall be exercised according to the regular parenting time schedule
l. When either the Applicant, Sean Douglas Waterhouse, or the Respondent, Amy Rebecka Waterhouse, is in possession of hockey equipment belonging to Tyler or Reid, the parent having the hockey equipment shall ensure that, if needed, the hockey equipment is exchanged at Zehrs Plaza at 310 Fairview Drive, Brantford, ON, or the hockey arena to the other parent in a reasonable amount of time before any hockey game, practice, or ice-time for which Tyler or Reid will use the hockey equipment.
m. The Applicant, Sean Douglas Waterhouse, and the Respondent, Amy Rebecka Waterhouse, shall ensure that any sporting equipment, clothing, electronic devices, or toys that move between the two homes are returned promptly. Both parties shall ensure that all the children’s items brought to their residence are returned with the children to the other parent’s residence at the next parenting time exchange.
n. Neither the Applicant, Sean Douglas Waterhouse, nor the Respondent, Amy Rebecka Waterhouse, may relocate his or her permanent residence more than 30 kilometres from the permanent residence of the other party without the other’s written consent or court order.
o. If either the Applicant or the Respondent proposes to change his or her permanent residence within 30 kilometres of the other party, at least 60 days before the move, or as soon as the party first learns of the move, notice shall be provided to the other party, such notice setting out the new address, telephone number, and the date of the move.
p. Neither parent shall change the name of either child without the written consent of the other parent.
q. The Respondent, Amy Rebecka Waterhouse, shall apply for and obtain passports for Tyler and Reid, without the need for a signed consent by the Applicant, Sean Douglas Waterhouse. The Respondent, Amy Rebecka Waterhouse, shall keep the passports and ensure they remain current. The Applicant, Sean Douglas Waterhouse, shall be provided with the passports when he wishes to travel internationally with Tyler and/or Reid, and he shall return the passports on the conclusion of the international travel.
Incomes of the Parents and Child Support
[104] The Applicant and Respondents income is known. They are both paid a salary from their respective employers. For support purposes the Applicants income is $82, 370.00. The Respondent earns an annual income that is similar to the Applicant.
[105] Having regard to their relatively equal incomes they shall share the section 7 expenses equally.
[106] Bothe the Applicant and Respondent shall exchange their income tax returns and notices of assessment on an annual basis no later than June 15 in each year. The child support shall be adjusted annually having regard to any increases or decreases in income.
Section 7 expenses
[107] It is accepted by both parents that the children excel in hockey and have always participated at an elevated level. I find that it is in the children’s best interest the to continue this activity. I find that the children’s participation in Hockey is a section 7 expense and shall be paid for equally by both parents. These expenses shall include hockey lessons for Reid and Goalie lessons for Tyler. My order shall include that parents shall equally share in the hockey equipment costs.
[108] The Respondent seeks to have any school trips and programing costs to be included as extraordinary expenses. I do not feel that such costs are proper section 7 expenses. These are expenses that the parents shall inform each other about any request for funding and consult with each other. If an agreement cannot be reached the parties shall submit to arbitration in order to resolve this issue.
[109] Post-secondary education and health care costs that are not paid for by insurance are section 7 expenses.
[110] Counselling for the children is also considered to be a section 7 expense and shall be shared equally between the parties.
Extended benefits
[111] Both the Applicant and the Respondent shall maintain Tyler and Reid as beneficiaries of any medical, extended health, and dental coverage provided by their respective employers for so long as child support continues to be payable. Both parties shall sign documentation authorizing the other to make claims directly to their insurer. A party who is reimbursed for a medical expense paid by the other shall immediately forward the reimbursed amount to the other party or authorize payment through their carrier to the service provider directly.
Child Support
a. Commencing December 1, 2021 and on the first day of the month thereafter, child support shall be payable by the Applicant, Sean Douglas Waterhouse, to the Respondent, Amy Rebecka Waterhouse in the amount of $900.00, which amount is determined in accordance with the Federal Child Support Guidelines, based on the Applicant’s income for support purposes being $82,370.00 annually.
b. The Applicant, Sean Douglas Waterhouse, and the Respondent, Amy Rebecka Waterhouse, shall, in equal amounts share Tyler and Reid’s extraordinary and special expenses as incurred by either party, including the cost of minor hockey participation, pursuant to Section 7 to the Federal Child Support Guidelines. Either party shall complete payment in respect of his or her share of the children’s special or extraordinary expenses within fifteen (15) days of the other party delivering proof of the expense.
c. Both parties shall sign documentation authorizing the other to make claims directly to their insurer.
d. A party who is reimbursed for a medical expense paid by the other shall immediately forward the reimbursed amount to the other party or authorize payment through their carrier to the service provider directly.
[112] If the parties cannot agree on costs they may serve and file written submissions no longer than 3 pages together with a brief summary outline of the costs no later than February 11, 2022.
R. J. Harper, J
Released: January 11, 2022