COURT FILE NO.: FS-18-00000131-0000

DATE: 2022 01 07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: D.C. v. A.B.

BEFORE: Kumaranayake J.

COUNSEL: B. Purdon-McLellan, for the Applicant Respondent not present

HEARD: June 16, 2021 by videoconference

REASONS FOR JUDGMENT

INTRODUCTION

1On June 16, 2021, I heard the Applicant’s motion for summary judgement (“SJM”). The Respondent neither responded nor participated in the SJM. Following completion of the Applicant’s counsel’s submissions, I granted the motion as it related to the parenting issues and child support but did not grant the request for a restraining order. I indicated that my written reasons would follow, and these are my reasons.

MATERIALS FILED

2The Applicant filed comprehensive materials in support of his SJM. These materials consisted of:

a) Notice of Motion, dated May 21, 2021

b) Affidavit of the Applicant, sworn May 21, 2021

c) Amended Notice of Motion, dated June 7, 2021

d) Factum

3From a review of the affidavits of service that had been filed, I was satisfied that on May 21, 2021, the Respondent was served with the notice of motion and the Applicant’s affidavit; and that on June 7, 2021, the Respondent was served with the amended notice of motion and the Applicant’s factum.

4During argument of the SJM, it became apparent that there was a significant typographical error in para. 14 of the Applicant’s affidavit dated May 21, 2021. This error related to the identity of the individual who had sexually assaulted the child who is the subject of the proceeding. The Applicant was permitted to file a supplementary affidavit to correct this error. The Applicant’s supplementary affidavit, sworn June 16, 2021, was served on the Respondent by email which was the same way the SJM materials had been served.

BACKGROUND

5The Applicant and the Respondent were married on December 24, 2007 but separated in September 2011. They had been married for almost four years at the time they separated. The parties were granted a divorce on October 7, 2013, pursuant to the Order of Justice Lemon.

6The Applicant and the Respondent are the parents of J.C. who was born in 2008 (“JC”). JC was almost three years old when the Applicant and the Respondent separated. JC was almost five years old when the Applicant and the Respondent divorced.

7The Respondent has two older children from a previous marriage, and I shall refer to those children as JS1 and JS2. JS1 was born in 1995 and is 13 years older than JC. JS2 was born in 2003 and is five years older than JC.

8Although the Applicant is not the biological father of JS1 and JS2, he had a parent-child relationship with them.

Separation agreement

9Following the parties’ separation, the parties entered into a Temporary Separation Agreement in 2011 and a Final Separation Agreement in 2013.

10The relevant portions of the Temporary Separation Agreement, dated July 31, 2011, provided that:

a) The arrangements set out in the Temporary Separation Agreement would be in effect from August 1, 2011 to September 1, 2012 and would automatically extend until replaced by a permanent agreement

b) The Applicant would pay to the Respondent child support for JS1, JS2, ad JC $2361 per month

c) JC would reside with the Respondent Monday through Thursday and reside with the Applicant Friday through Sunday

d) If either parent is not able to care for JC as per this schedule, then that parent will notify the other first. If the other parent is not able to care for JC, then they will then proceed to find alternative care givers

e) If a sickness or injury precluded either parent from caring for JC as per the schedule, JC would reside with the other parent until the sick or injured parent has sufficiently recovered.

f) If either parent is financially or otherwise incapable of providing a suitable home for JC, she will reside with the other parent.

g) Neither parent would take JC outside of the Greater Toronto Area without the consent of the other, nor outside of the province of Ontario without the written and signed consent of the other

h) JS1 and JS2 would reside with the Respondent.

i) It was agreed that the Applicant could participate in the JS1 and JS2’s lives in a manner consistent with his role as their step-father. The Respondent would keep the Applicant informed of major issues and developments in JS1 and JS2’s lives but the Respondent was the final decision-maker for JS1 and JS2.

j) It was agreed that both parties would cooperate to as much as possible so that both parties and all three children can spend birthdays, holidays, and other special occasions tougher as well as having whole-family events and occasions throughout the year

11The parties’ Final Separation Agreement, dated May 11, 2013, was comprehensive. It is not necessary to include the details of the agreement in its entirety. For the purposes of the SJM, it is important to note that in the Final Separation Agreement, the parties agreed that the Applicant would continue to pay child support for JC and JS2 (as JS1 had already reached the age of majority).

12Further, the parties agreed that they would have shared-joint custody of JC so that she would reside with each parent for half the week and that neither parent would relocate their home outside of the Greater Toronto Area (“GTA”), as defined in their agreement. If one parent relocated outside of the GTA, JC would continue to reside with the parent who remained in the GTA and the shared-joint custody arrangement would be replaced with a joint custody arrangement. Their agreement provided that the relocating parent would continue to be informed of major issues and developments in JC’s life and continue to be involved in the making of all major decisions. The relocating parent will continue to have access to JC and the right to visit with her. The relocating parent would be responsible for all costs related to travel to see JC or have JC visit the relocating parent

13Neither the temporary nor the final separation agreements were registered with the Court or with the Family Responsibility Office.

Litigation History

14The litigation revolving around JC has been complicated because of the nature of the issues involved and the multiplicity of proceedings. It involved proceedings at two different SCJ courthouses (Newmarket and Brampton) as well as two different OCJ proceedings. I shall briefly review these proceedings.

1) SCJ – Newmarket

15In April 2011, prior to the parties entering into the Temporary Separation Agreement and prior to their separation, the Respondent brought an urgent motion, without notice, to obtain custody of JS1, JS2, and JC. This urgent request was precipitated by the Respondent removing JS2, who was 7 years old at the time, from Canada and taking him to Jordan. According to the Applicant, there had been a decline in the Respondent’s mental health. The Applicant’s evidence is that at the time the Respondent took JS2 to Jordan, the Respondent believed that she was Jesus Christ.

16The Applicant’s urgent motion came before Justice McGee. On May 27, 2011, Justice McGee ordered that:

1. The Applicant had temporary custody of JC and her two older siblings, JS1 and JS2.

2. The children, JC, JS1 and JS2 shall not be removed from Ontario without the written consent of the parties or a court order

3. The Applicant shall have temporary exclusive possession of the matrimonial home

4. The Respondent need not be served with the Application and Order until she has been in the Province of Ontario for 7 days.

17In her Endorsement, dated May 27, 2011, Justice McGee noted the following:

This is a rare and compelling case. The mother has succumbed to religious idealization and left the jurisdiction for Jordan (non-signatory) with the 7 year old. Father fears for the other two children who the mother wishes to also remove from the jurisdiction…This appears to be the first major breakdown for the mother – with recovery she may be able to co-parent in the future. At this time, the children’s residence must be stabilized and they must be protected.

18The Applicant subsequently withdrew his Application by a notice of withdrawal dated June 9, 2011.

2) OCJ proceedings commenced by the Respondent

19The Applicant’s evidence was that the Respondent returned to Canada on or about June 1, 2011. After the Respondent’s mental health improved, there was a brief reconciliation. During that time, the parties were able to negotiate the Temporary and then the Final Separation Agreements. Further, the Applicant’s evidence was that up until fall 2017, he and the Respondent co-parented relatively well.

20However, in the fall of 2017, the Applicant observed a decline in the Respondent’s mental health (similar to what had occurred in the spring 2011 when the Respondent took JS2 to Jordan).

21According to the Applicant’s evidence, the Respondent then exhibited concerning behaviour and held concerning beliefs, including “a fixation on bizarre theories of the universe, a belief that someone was tracking her bank accounts, and attempts to isolate JC from family and friends.” In November 2017, the Respondent alleged that the Applicant had attempted to poison JC with cyanide. This allegation was not substantiated by the Peel Children’s Aid Society (“Peel CAS”) which became involved with the family in 2017.

22In December 2017, parenting time between the Applicant and JC stopped. According to the Applicant, on or about November 19, 2017, the Respondent had JC tell the Applicant that JC did not want to live with him anymore.

23On January 5, 2018, the Respondent (A.B.) commenced an Application in the Ontario Court of Justice in Brampton.

24The Applicant states that the Respondent asserted that despite working full time outside of the home, she was homeschooling JC. The Applicant did not know who was supervising JC while the Respondent was at work.

25Prior to a case conference, the Applicant brought an urgent motion to seek custody of JC. On February 2, 2018, Justice Dunn reviewed the Applicant’s request for leave to have the motion heard and leave was not granted. Justice Dunn directed that when the matter was spoken to on February 22, 2018, the parties would receive a date for the initial case conference before the case management judge. Justice Dunn also directed that a date for the Applicant’s motion be set at the initial case conference.

26The Applicant then appealed Justice Dunn’s decision and sought a stay pending appeal of Justice Dunn’s order. The Applicant’s request for a stay was placed before Regional Senior Justice Daley (as he was then). By the Endorsement, dated March 6, 2018, the Applicant’s request for a stay was dismissed.

27The Applicant’s evidence was that he and the Respondent were not able to attend a case conference until April 30, 2018. That case conference was heard by Justice Parent. It is not clear from the evidence before me if there were other dates offered for which one or both of the parties were unavailable or if this was the first available date offered to the parties.

28At the case conference, the Court raised the issue of whether the Ontario Court of Justice had jurisdiction over the parties’ claims given the Order of Justice McGee, dated May 26, 2011 (an order of the Superior Court of Justice).

29After discussion of the issue, and on consent of the parties, on April 30, 2018, Justice Parent ordered that the Application (filed on January 5, 2008), the Answer filed February 7, 2018, and the Reply filed February 9, 2018, shall be withdrawn with each party bearing their own costs for the proceeding.

3) parallel proceedings in the OCJ (child protection) and SCJ proceedings

30By an Application issued on May 18, 2018, the Applicant started the proceedings at the SCJ in Brampton. It is within this proceeding that this SJM has been brought. As it related to JC, the Applicant requested sole custody of JC, child support, conditions on the Respondent’s access with JC, and a restraining order.

31By an Answer dated June 21, 2018, the Respondent requested sole custody of JC, child support, that the Applicant have supervised visits with JC at a visitation center. There was other ancillary relief requested as well as relief relating to property issues, but it is not necessary to include the details of those issues.

32Despite the Application having been commenced in 2018, no temporary orders with respect to custody or access were made until March 6, 2020.

33The Applicant brough a motion returnable on August 28, 2018 to seek sole custody, shared parenting and that JC attend school. The motion was heard by Justice McSweeney. Although no order with respect to custody, decision-making responsibility or access was made, Justice McSweeney made a temporary order that JC be enrolled in school and that the parties both take steps to meet with the school and to support JC’s transition to that school.

34Justice McSweeney also ordered that the Applicant could return the matter back on short notice to seek a change in JC’s primary residence if the Respondent was not able to support JC’s full-time attendance at school and was not able to work cooperatively with the Applicant and keep him informed of JC’s progress. Further neither party was permitted to travel with JC outside of Ontario without the written permission of the opposite party or further Order.

35Justice McSweeney also made an order requesting the involvement of the Office of the Children’s Lawyer (“OCL”). No costs were ordered for the Applicant’s motion.

36On January 21, 2019, JC was removed from the Respondent’s care and placed in the care of the child protection agency.

37As a result of JC’s apprehension and the subsequent proceedings under the Child, Youth and Family Services Act, 2017, R.S.O. 1990, c. C. 11 (“CYFSA”), the application before the SCJ was stayed.

38While JC was in care of Peel CAS, the Applicant worked with Peel CAS and with their assistance, began to rebuild his relationship with JC with a view to regaining care of JC.

39Within the context of the SCJ proceedings, the OCL completed its investigation and delivered its report dated, February 20, 2019. The clinical investigator did not find signs of the Applicant having significant mental health issues; however, there was concern expressed that the Respondent was suffering from mental health symptoms Several recommendations were made, including that:

a) JC could benefit from counselling to assist her in developing her own sense of self and opinions;

b) JC could benefit from limited changes in service providers due to the ‘tremendous amount” of changes that have taken place of the past several years;

c) JC and the Applicant could benefit from continued reunification counselling;

d) the Respondent could benefit from counselling around appropriate boundaries and learning how to co-parent effectively; and,

e) The Respondent could benefit from a psychiatric assessment and monitoring of her follow up on recommendations as a result of that assessment.

40By April 2019, Peel CAS had suspended the Respondent’s visits with JC. The Respondent has not seen JC or been in contact with JC since that time.

41By August 2019, JC was placed on an extended visit and residing with the Applicant.

42On September 18, 2019, pursuant to the Order of Justice Khemani, JC was found in need of protection and JC was placed in the care of the Applicant subject to a four-month supervision order. One of the conditions of that order required the Respondent to obtain a mental health assessment before her access was reinstated. Further, once the mental health assessment had been obtained, the Respondent’s access to JC was in the discretion of Peel CAS with respect to location, duration, frequency, and level of supervision. There was no evidence that the Respondent obtained the mental health assessment.

43By its Status Review Application, returnable on January 15, 2020, Peel CAS requested an order that JC be placed in the Applicant’s custody pursuant to section 102 of the CFYSA. Legal counsel had been appointed for JC in the protection proceedings. JC’s lawyer confirmed that JC had expressed that she wanted to live permanently with the Applicant. A statement of agreed facts was prepared in support of obtaining a section 102 custody order.

44The statement of agreed facts was presented to Justice Parent on January 15, 2020, for her consideration. Justice Parent declined to grant the requested order given that the same jurisdictional issue which Justice Parent raised in April 2018 (in the context of the Respondent’s application under the Children’s Law Reform Act, R.S.O. 1990, c C.12 (“CLRA”)) was still an issue.

45Ultimately, Peel CAS indicated that it would be seeking to terminate the existing supervision order and terminate its involvement as it had no protection concerns in relation the Applicant. The Respondent’s whereabouts were not known, and she was not having any contact with either the Applicant, JC, or Peel CAS.

46Therefore, in the SCJ proceedings, the Applicant brought a motion without notice to the Respondent. The Applicant requested custody of JC and a restraining order. The Applicant’s motion was heard on March 6, 2020. Justice Harris made the following order, on a temporary basis:

a) The requirement to serve the Respondent was dispensed with;

b) The Applicant shall have sole custody of JC;

c) JC shall primarily reside with the Applicant on an interim basis;

d) The Respondent’s access to JC shall be at the discretion of the Applicant with respect to time, location, duration, frequency, and level of supervision;

e) The Respondent shall not remove JC from 50 km of the Applicant’s residence and shall not removed JC from the Province of Ontario;

f) The Applicant may obtain or renew government documents, such as passport renewals, health cards, SIN, applications for name changes, and birth certificates for JC without the consent of the Respondent;

g) Police enforcement pursuant to s. 35 of the CLRA and that police enforcement shall expire one year from the date of the Order unless extended or terminated earlier by further Order;

h) The parties and the child will be identified by their initials only and the style of cause is amended to read “D.C. v. A. B.”

i) The Applicant may bring a motion for summary judgement;

j) The Order of Justice McGee, dated May 27, 2011 (made at the SCJ – Newmarket) is extinguished;

k) Peel CAS must be served with any motions to change the orders made on the motion;

l) Dispensing with approval of the draft order by the Respondent; and,

m) Costs of $1,000.

47Justice Harris also granted a temporary restraining order that prohibited the Respondent from directly or indirectly contacting or communicating with the Applicant or the child, JC, unless with the Applicant's written consent for the purpose of having access with JC or through family law counsel. Further, the Respondent was not permitted to come within 200m of where the Applicant or JC is known to be and specifically the Applicant’s home and JC’s school.

THE LAW

Summary Judgement

48Rule 16 of the Family Law Rules governs summary judgement motions. The relevant principles that relate to this SJM are:

a) The moving party must serve an affidavit of other evidence that sets out specific facts showing that there is not genuine issue requiring a trial (Rule 16(4))

b) The responding party to the SJM may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial (Rule 16(4.1))

c) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party (Rule 16(5))

d) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly (Rule 16(7))

e) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence (Rule 16(6.1))

f) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation (Rule 16(6.2)

49In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, Justice Karakatsanis on behalf of the Court provided guidance as to the approach to be taken on a SJM and in determining whether there is a genuine issue requiring a trial. At para. 49, Justice Karakatsanis explains:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

50Further, the evidence on a SJM does not need to be the equivalent to that at trial. The evidence “must be such that the judge is confident that she can fairly resolve the dispute” (Hryniak, at para. 57).

51At para. 66, Justice Karakatsanis outlined the roadmap to be followed:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

52Although reference is made to Rule 20.04 of the Rules of Civil Procedure, the roadmap is equally applicable to a SJM brought under Rule 16 of the Family Law Rules.

53In the SJM before me, even though the Respondent did not respond to the motion, the Applicant still had to demonstrate that there was no genuine issue requiring a trial.

54If the Applicant’s evidence established through specific facts that there was no genuine issue requiring a trial, then the SJM should be granted.

Parenting Order and the Best Interests Test

55The Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) (“Divorce Act”) outlines what may be included in a parenting order and what factors must be considered in determining what is in a child’s best interests.

56The relevant sections are 16.1, 16.2, 16.3. and 16.4. Further, factors to be considered in determining best interests are set out in section 16. These provisions are:

16.1(1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by

(a) either or both spouses; or

(b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.

Interim order

(2) The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection.

Application by person other than spouse

(3) A person described in paragraph (1)(b) may make an application under subsection (1) or (2) only with leave of the court.

Contents of parenting order

(4) The court may, in the order,

(a) allocate parenting time in accordance with section 16.2;

(b) allocate decision-making responsibility in accordance with section 16.3;

(c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and

(d) provide for any other matter that the court considers appropriate.

Terms and conditions

(5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.

Family dispute resolution process

(6) Subject to provincial law, the order may direct the parties to attend a family dispute resolution process.

Relocation

(7) The order may authorize or prohibit the relocation of the child.

Supervision

(8) The order may require that parenting time or the transfer of the child from one person to another be supervised.

Prohibition on removal of child

(9) The order may prohibit the removal of a child from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.

Parenting time — schedule

16.2 (1) Parenting time may be allocated by way of a schedule.

Day-to-day decisions

(2) Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(a) has exclusive authority to make, during that time, day-to-day decisions affecting the child.

Allocation of decision-making responsibility

16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.

Entitlement to information

16.4 Unless the court orders otherwise, any person to whom parenting time or decision-making responsibility has been allocated is entitled to request from another person to whom parenting time or decision-making responsibility has been allocated information about the child’s well-being, including in respect of their health and education, or from any other person who is likely to have such information, and to be given such information by those persons subject to any applicable laws.

The parenting order made must be in the best interests of the child. Section 16 of the Divorce Act sets out what must be considered in determining the child’s best interests:

Best interests of child

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.

Restraining Order

57Section 35 of the CLRA provides the Court’s authority to grant a restraining order:

(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.

(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.

Child Support

58Section 15.1 of the Divorce Act provides the Court’s authority to order child support, as set out below:

Child support order

15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1).

Guidelines apply

(3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines.

Terms and conditions

(4) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just.

Court may take agreement, etc., into account

(5) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied

(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and

(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.

Reasons

(6) Where the court awards, pursuant to subsection (5), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shall record its reasons for having done so.

Consent orders

(7) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.

Reasonable arrangements

(8) For the purposes of subsection (7), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines.

ANALYSIS

Is Summary Judgement appropriate?

59In applying the principles set out in the Family Law Rules and in Hryniak, and based on my findings of the facts as set out below, I am satisfied that that there is no genuine issue requiring a trial. In making this determination, it was not necessary for me to use the enhanced fact-finding powers as set out in Rule 16.

60The Applicant was fair and presented a balanced picture in his evidence. In bringing this SJM, it could not be a surprise that his evidence would be unchallenged by the Respondent given that since 2019, she has withdrawn not only from court proceedings, but also from the Applicant and JC’s life. However, he did not use this as an opportunity to be unduly critical of or harsh to the Respondent. He demonstrated insight into not only the needs of JC but the Respondent’s strengths within the context of the challenges posed by her mental health.

61This is one of those cases where it would be unjust if the litigation was protracted any further. JC needs certainty and predictability. She needs a parent who is available, ready, willing, and able to make significant choices about her well-being, including decisions about her health, education, culture, language, religion, spirituality, and significant extra-curricular activities.

62The relevant facts as I have found them are:

a) The parties have been separated since 2011

b) At the time of the SJM, JC was 12 years old. She was three years old at the time her parents separated

c) The parties agreed to a shared joint custody parenting schedule whereby JC would spend half of each week with each parent. The Applicant paid child support to the Respondent for JC, JS1, and JS2. These arrangements were first captured by a Temporary Separation Agreement and then a Final Separation Agreement which was entered into in 2013.

d) From 2013 to the fall of 2017, the parties were able to work together relatively well and followed the Final Separation Agreement.

e) In the fall 2017, the Respondent’s mental health deteriorated. Peel CAS became involved with the family on a voluntary basis.

f) The Respondent discouraged JC from having contact with the Applicant as well as other members of JC’s extended family. JC was isolated and vulnerable.

g) Although the Respondent was employed outside of the home, she maintained that JC was being homeschooled and it was questionable who was supervising JC when the Respondent was at work.

h) In February 2018, JC was sexually assaulted by her maternal grandfather, who was subsequently charged and convicted.

i) Protection proceedings under the CYFSA had to be instituted in January 2019 after JC was removed from the Respondent’s care and brought to a place of safety. The removal of JC from the Respondent’s care was precipitated by the Respondent’s belief that the CAS workers were imposters hired by the Applicant as part of a sex trafficking ring, the Respondent’s lack of cooperation with Peel CAS, and the Respondent hiding JC in various Air BnBs.

j) The Respondent had supervised visits with JC between the time JC was removed from the Respondent’s care to April 2019. Peel CAS terminated the Respondent’s visits as the Respondent posted on her blog that she had entered a suicide pact with JC and that if JC was not returned to her care, they would carry out the suicide pact.

k) The Applicant worked with Peel CAS to rebuild his relationship with JC and demonstrated that JC could be placed in his care.

l) On September 18, 2019, JC was placed in the Applicant’s care first pursuant to a supervision order.

m) Peel CAS supported the Applicant obtaining custody of JC pursuant to the provisions of the CYFSA but, due to jurisdictional issues, that order could not be obtained in January 2020.

n) On March 6, 2020, the Applicant obtained a temporary order granting him sole custody of JC, that JC’s primary residence was with the Applicant, and that the Respondent’s parenting time with JC be in the discretion of the Applicant.

o) Peel CAS terminated its involvement as it had no protection concerns with JC being in the Applicant’s care.

p) JC has remained in the Applicant’s care pursuant to the Temporary Order of Justice Harris, dated March 6, 2020.

q) There have been no concerns raised about the Applicant’s ability to care for or meet JC’s needs since she was returned to his care.

r) The Respondent has not had contact with JC since April 2019. After her visits with JC were terminated, the Respondent left Canada and was in the United Kingdom and then Albania. While she was in the United Kingdom, the Respondent was hospitalized.

s) The Respondent maintained contact with her mother (the maternal grandmother) for a period of time after the Respondent’s visits with JC were terminated in 2019. However, the Respondent stopped communicating with the maternal grandmother in 2020.

t) Efforts made by the Applicant through his counsel were not successful in locating the Respondent.

u) The Respondent’s current whereabouts are unknown.

v) JC has thrived while being in the Applicant’s care.

w) JC has been working with an individual therapist to learn to understand her experiences while in the Respondent’s care and to understand the extent that the Respondent’s mental health impacted the Respondent. JC has worked with this individual therapist since October 2018.

x) Since being in the Applicant’s care, JC has re-established her relationships with members of her extended family, including her siblings, JS1 and JS2, and JC’s paternal and maternal grandmothers.

y) The Applicant has ensured that JC has regular contact with her siblings and grandmothers, either in person, by video, or telephone. JC speaks with JS2 almost daily and JS1 lives on the same street as the Applicant and JC.

z) The Applicant has enrolled JC in a school which offers programming for gifted students. JC has an Individual Education Plan and is excelling in her academics.

aa) The Applicant has supported JC’s social development and peer relationships through enrolling her activities and camps. For example, science workshops and archery. Even during the pandemic, the Applicant has found virtual activities for JC to participate in.

bb) JC has issues with her physical health and mental.

cc) In August 2020, JC was diagnosed with systemic lupus. She received treatment at the Hospital for Sick Children (“SickKids Hospital”). She has encountered damage to some of her organs and left knee. Her treatment is ongoing.

dd) In addition to the traumatic experiences that JC encountered prior to being removed from the Respondent’s care, JC has been diagnosed with depression and anxiety.

ee) JC was at high risk due to suicidal thoughts and in or about January/February 2021. JC attended an intensive inpatient program at SickKids Hospital to teach her coping skills. JC continued to see therapists at SickKids monthly.

ff) JC also participated in the Adolescent Medicine Program at SickKids Hospital through which she receives mental health support for her lupus diagnosis. JC also participates as an outpatient in the Children’s Mental Health Program at the Brampton Civic Hospital and sees a psychiatrist once per month.

gg) Another health-related issue that must be managed is that the medication that she receives to address her lupus (which is necessary for the recovery of her damaged organs) has negatively impacted her mental health. The Applicant has been informed by JC’s doctors that there may be alternative treatments available to address JC’s lupus and that he will have to make decisions about which course of treatment to pursue.

hh) The Applicant has the financial means to meet JC’s needs.

What is the parenting order that is in JC’s best interests?

63The Applicant has been JC’s primary caregiver since September 2019. In that time, he has ensured that JC is enrolled in school and engaged in therapy as well as extracurricular activities.

64I am satisfied that the Applicant has been actively engaged with the clinicians involved in caring for JC’s physical and mental health.

65Based on the findings of fact that I have made and taking into consideration the relevant principles set out in the Divorce Act, I had no hesitation in concluding that it was JC’s best interests that she reside primarily with the Applicant and that the Applicant have sole decision-making authority. The Respondent’s whereabouts were unknown. The status of the Respondent’s mental health was unknown. The Respondent had not maintained contact with the Applicant, the child, or even the maternal grandmother. Joint decision-making and a shared parenting time cannot exist in this context.

66Should the Respondent return and wanted to be a part of JC’s life, I had no hesitation in concluding that the Applicant would support a relationship between JC and her mother to the extent that the Respondent had addressed her mental health and so long as it was in JC’s best interests to do so. The Applicant has demonstrated that he has the necessary insight to make that decision, as demonstrated in how he described the Respondent at para. 3 of his May 21, 2021, affidavit:

While A.B. is an extraordinarily bright woman who loves her daughter, A.B.’s suffers from extensive mental health issues that she has been unable or unwilling to address. When A.B. is well, she is a considerate and engaged parent. However, when she is unwell, her mental health results and behaviours are harmful to J.C.

67I was satisfied that the Applicant would exercise his discretion in a manner consistent with JC’s best interests and that he would determine the appropriate the time, location, duration, frequency, and level of supervision should the Respondent re-enter JC’s life.

Child Support

68I accepted the Applicant’s evidence that he paid child support as required by the parties’ separation agreements. I also accept that he paid the Respondent child support and the other expenses for JC until February 2019.

69I accepted the Applicant’s evidence that when JC was in the care of Peel CAS, he continued to pay for JC’s special and extraordinary expenses, including expenses for JC’s individual therapist, extracurricular activities, and camps.

70I also accepted the Applicant’s evidence that the Respondent has not paid any child support to him since JC was placed in his care.

71On this SJM, the Applicant did not seek an order that the Respondent pay child support on an ongoing basis. Further, the Applicant did not request that the Respondent pay arrears in child support from the time that JC was placed in the Applicant’s care.

72Child support is the right of the child. In the evidentiary record before me, however, there was no evidence as to where the Respondent lives or if she is working or if she has the means to pay child support.

73The Applicant is a tenured university professor and I accepted his evidence that he has the financial means to meet JC needs.

74If the Applicant learns that the Respondent has an income sufficient pay child support, then the Applicant is not precluded from bringing a Motion to Change.

Should a restraining order be granted?

75On March 6, 2020, Justice Harris granted a temporary restraining order. That order expired on March 6, 2021.

76I have carefully reviewed the Applicant’s evidence. I do not disagree that in March 2020, the evidence warranted a temporary restraining order. However, I am not satisfied that a further restraining order should be granted.

77The Applicant relied on E.O. v O.E., 2019 ONCJ 921, in which Justice S. E. J. Paull sets out a summary of the legal principles to be considered by the Court in determining a request for a restraining order:

109The legal principles for the court to apply are as follows:

a. Restraining orders are serious and should not be ordered unless a clear case has been made out. Ciffolillo v. Niewelglowski, 2007 ONCJ 469.

b. A restraining order is serious, with criminal consequences if there is a breach. It will also likely appear if prospective employers conduct a criminal record (CPIC) search. This could adversely affect a person’s ability to work. F.K. v. M.C., 2017 ONCJ 181.

c. Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds for the person to fear for his or her own safety or for the safety of their child. McCall v. Res, 2013 ONCJ 254.

d. The person’s fear may be entirely subjective so long as it is legitimate. Fuda v. Fuda, 2011 ONSC 154, 2011 CarswellOnt 146 (Ont. SCJ); McCall v. Res, supra.

e. A person’s subjective fear can extend to both the person’s physical safety and psychological safety. Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.).

f. It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. Fuda v. Fuda, supra.

g. A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible, impulsive behavior with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. Purewal v. Purewal, 2004 ONCJ 195.

h. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears. Fuda v. Fuda, supra.

i. Courts should have regard for the passage of time. Events that once triggered a temporary restraining order may not be so compelling on the issue of a permanent order. D.C. v. M.T.C., 2015 ONCJ 242.

j. In borderline cases, the court must consider what other protections may be available if a restraining order is not granted. D.C. v. M.T.C., supra.

k. It is appropriate, in borderline cases, to consider the balancing prejudice to the respondent, if the restraining order is granted. D.C. v. M.T.C., supra.

l. A no-contact or communication order made pursuant to section 28 of the Children’s Law Reform Act is not as wide-ranging as a restraining order. It can limit contact and communication between the parties, but it cannot restrain a party from harassing the other party to third parties. F.K. v. M.C., supra.

m. Further, the court should be alert to the fact that parties may improve their behavior when the eyes of the court are on them. This might not continue once the case ends. F.K. v. M.C., supra.

78I do not disagree with the legal principles that are set out by Justice Paull. However, there simply was no evidence in the record before me that the Respondent has had any contact with, or even attempted to contact, either the Applicant or the child since Justice Harris’ order, dated March 6, 2020. Further, there was no evidence before me that the Respondent had any contact or made any attempt to have contact with the Applicant or the child since April 2019 when Peel CAS suspended her access to the JC. The Applicant’s whereabouts were unknown.

79I was not persuaded that the Respondent had continued to engage in the harmful and threatening behaviour that was exhibited in January 2019 to April 2019.

80I agree with Justice McGee’s observation as stated in Jiang v. Zeng, 2019 ONSC 1457:

28Section 46 of the Family Law Act allows the court to make a temporary restraining Order if the moving party has reasonable grounds to fear for his or her safety. Restraining Orders are serious and should not be ordered unless a clear case has been made out. There are criminal consequences for a breach, it can adversely affect a person’s ability to work and it can limit one’s liberty. It is not sufficient to argue that there would be no harm in granting the Order, or that there was a prior justification.

29Before the court can grant a restraining Order, it must be satisfied that there are imminent and reasonable grounds for the person to fear for his or her own safety or for the safety of their child [footnotes omitted].

81In the case before Justice McGee, the moving party sought a restraining order under section 46 of the Family Law Act. In the case before me, the Applicant moved under section 35 of the CLRA. However, those observations equally apply to the Applicant’s request for a restraining order. In my view, the Applicant did not make out a clear case that at the time the SJM was heard, there were imminent and reasonable grounds for the Applicant to fear for his own safety or the safety of JC.

82Therefore, the Applicant’s request for a restraining order was dismissed.

Costs

83In the Applicant’s notice of motion and amended notice of motion, he requested costs for the SJM. However, at the conclusion of argument of the SJM, the Applicant’s counsel advised that the Applicant was no longer seeking costs. Therefore, there are no costs ordered in relation to this SJM.

THE FINAL ORDER, DATED JUNE 16, 2021

84Therefore, for the reasons outline above, on June 16, 2021, save and except for the request for a restraining order and costs, the Applicant’s SJM was granted and the following Final Order was made:

Pursuant to the Divorce Act:

1. The Applicant shall have sole decision-making responsibility of the child, J.C. (DOB [….] 2008)

2. The child, J.C. (DOB December 24, 2008) (DOB [….] 2008), shall primarily reside with the Applicant

3. The Respondent’s parenting time with J.C. (DOB December 24, 2008) (DOB [….] 2008)shall be at the discretion of the Applicant with respect to time, location, duration, frequency, and level of supervision

4. The Respondent shall not remove J.C. (DOB [….] 2008) from 15 km of the Applicant’s residence and shall not remove J.C. (DOB [….] 2008) from the Province of Ontario unless the Applicant provides consent, in writing.

5. The Applicant may travel with J.C. (DOB [….] 2008) outside of the province of Ontario without the consent of the Respondent

6. The Applicant may obtain or renew government documents, such as passport renewals, health cards, SIN, applications for name changes, and birth certificates for J.C. (DOB [….] 2008) without the consent of the Respondent.

7. Neither D.C. or A.B. owes retroactive support from September 2011 to the date of this Order

8. This Applicant shall not be required to pay the Respondent child support as of the date of this Order and retroactive to February 2019

Pursuant to the Children’s Law Reform Act:

9. Pursuant to s. 36 of the CLRA, police forces in the Province of Ontario, including but not limited to Ontario Provincial Police, Peel Regional Police, York Regional Police, and Toronto Police Services, are directed and authorized if the Respondent does not return the J.C. DOB [….] 2008) following her parenting time or otherwise obtains the child in her care outside of the provisions in paragraphs 3-4 to do all things that may reasonably be done to locate and apprehend J.C. (DOB [….] 2008)and deliver her to the Applicant’s care.

10. This police enforcement clause shall expire one year from the date of this Order, unless extended or terminated earlier by further Order.

Other terms:

11. The Respondent’s claims in this proceeding are dismissed pursuant to Rule 16 of the Family Law Rules; and,

12. The requirement to have the draft of this Order approved as to form and content by the Respondent is dispensed with.

13. The Applicant shall serve this Order on the Respondent using the Respondent’s last known email address: [XXX]@gmail.com

14. The Peel Children’s Aid Society shall be served with any Motion to Change any provisions of this Final Order relating to decision-making responsibility for J.C., parenting time with J.C., or J.C.’s primary residence.

15. The parties shall bear their own costs of this proceeding.

Kumaranayake J.

DATE: January 7, 2022

COURT FILE NO.: FS-18-00000131-0000

DATE: 2022 01 07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: D.C. v. A.B.

COUNSEL: B. Purdon-McLellan, for the Applicant Respondent not present

REASONS FOR JUDGMENT

Kumaranayake J.