COURT FILE NO.: FS-19-0025

DATE: 2022 07 19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

LISA PETRINA McINTOSH

Sarah E. Jackson, for the Applicant

Applicant

• and -

BRADLEY OLIVER BAKER

Self-Represented

Respondent

HEARD via Videoconference: January 17, 18, 19, 20, 21, 2022

REASONS FOR JUDGMENT

Fowler Byrne J.

[1] This decision follows a five-day trial that involved issues of decision making, parenting time, and child support.

[2] Fortunately, the parties were able to resolve some parenting issues, such as telephone time, communications with educators, communication as between themselves, mobility, government documents, travel, extended health benefits, as well as retroactive expenses and property issues. The remaining issues involving decision making and parenting time remained contentious. The parties agree that child support will follow once parenting time is decided.

[3] At the trial management conference of this matter in November 2021, it was ordered that evidence in chief would proceed by way of affidavit, with the parties having an additional 30 minutes to give evidence to bring the court up to date. Evidence in cross-examinations and redirect would be viva voce. The trial proceeded by video-conference.

I. Background

[4] The Applicant, Lisa Petrina McIntosh (“the Mother”), and the Respondent, Bradley Oliver Baker (“the Father”), commenced cohabitating in or around September 2013. There are three children of this five-year union: a daughter, N.E.B., born in 2014, and twin boys B.C.B. and B.N.B, born in 2016. The parties never married.

[5] The parties separated on August 15, 2018. At that time, the Mother left the jointly-owned property (“the Property”) with the children and lived with her parents. She returned with them to the Property on September 25, 2018, at which time the Father vacated the Property for just a few weeks.

[6] On October 18, 2018, until June 3, 2019, the parties resided in the Property, separate and apart, with the children. The environment in the home was difficult. Matters escalated to the point when there was a physical altercation between the Father and the maternal grandfather (“Grandfather”), the details of which are detailed below. The Father was not permitted to live in the Property after that, nor have any direct contact with the Mother. The Mother eventually purchased the Father’s interest in the Property in July 2019. The children have lived primarily with the Mother at the Property since June 2, 2019, with the Father having parenting time, but not to the degree he desires. The Father’s demand for equal parenting time has influenced his conduct following separation and throughout the trial.

[7] These proceedings were commenced by the Mother in February 2019, while the parties both resided in the Property.

II. Issues

[8] The following issues were to be determined at this trial:

a) Who should have decision making responsibility for the children?

b) When should each party have parenting time?

c) What are the parties’ child support obligations, both monthly and with respect to s. 7 expenses under the Federal Child Support Guidelines, SOR/97-175?

[9] In addition, the Mother raised an initial objection to some of the evidence in the Father’s trial affidavit and asked for a ruling on its admissibility. My ruling in that regard has been released separately.

III. Analysis

A. Parenting Orders

[10] The minutiae and day to day working of parenting have already been resolved by way of Minutes of Settlement and are incorporated in the Order of Justice Kumaranayake of November 10, 2021. I have been asked only to decide the issue of decision making and parenting time.

[11] At the conclusion of trial, I reserved my decision, other than granting the Mother final decision making authority with respect to vaccinations, with reasons to follow. These reasons explain that decision as well as my determination of decision making in all other areas.

a. Law

[12] My authority to decide who has decision making responsibility for the children and when each party has parenting time with the children is set out in s. 28 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12. (“CLRA”). When so deciding: s. 24(1)(2), CLRA.

[13] The factors relating to the circumstances of the child are set out in s. 24(3) of the CLRA and include:

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

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

[14] Subsection 24(4) states that when considering the impact of family violence under s. 24(3)(j), I must take into account:

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

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

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

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

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

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

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

(h) any other relevant factor.

[15] The list of best interests factors is not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the children, their needs, and the people around them: Phillips v. Phillips, 2021 ONSC 2480, at para. 47.

[16] In addition, I must give effect to the principle that the children should have as much time with each parent as is consistent with their best interests: s. 24(6), CLRA.

[17] In the recent Supreme Court of Canada case of Barendregt v. Grebliunis, 2022 SCC 22, the court stated that the recent amendments to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), recognize that findings of family violence are a critical consideration in the best interests analysis. Courts must consider family violence and its impact on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child: Barendregt, at para. 146. The provisions in the CLRA on family violence mimic those in the Divorce Act. Accordingly, the principles set forth in Barendregt are also properly applicable in cases where parents were never married.

[18] The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497: Barendregt, at para. 143.

[19] Denigration of your spouse in front of the children has been found to fit within the definition of family violence: Ammar v. Smith, 2021 ONSC 3204, at para. 58(j).

[20] Unwarranted calls to authorities, being the police and children’s aid society, can be psychological abuse: K.M. v. J.R., 2022 ONSC 111, at para. 380(g).

b. Analysis

[21] I will address the applicable factors informing the best interests of the children.

i. Children’s needs, including stability

[22] The children need stability and security. As detailed below, their few years have involved witnessing much conflict between the parents.

[23] The eldest child is currently eight years old, and the twins are six years old. As a result of the Mother purchasing the Father’s interest in the Property, the children have lived in the same house their entire lives. The children have also consistently been looked after by the maternal grandparents (“Grandparents”), including before they were old enough to go to school and then after they began attending school, if the Father was not working from home. The Father worked from home one day per week following the birth of N.E.B., and two days per week following the birth of the twins.

[24] The Mother’s parenting plan includes staying in the same house, keeping the children in the same school, and continuing to utilize the Grandparents for after-school care. The Father’s parenting plan envisions changing the children’s school. His plans for after-school care are not clear. The Mother’s parenting plan provides for more stability in the short term.

ii. Children’s relationship with each parent, siblings, and grandparents

[25] It is clear the children love and are attached to both parents. The children are also very attached to the Grandparents and the extended maternal family.

[26] The maternal extended family has always been part of the children’s lives. Despite that, it is clear that the Father resents their involvement and blames them for the breakdown of the relationship. As he states in his trial affidavit, “[F]or reasons that remain a mystery to me, the Grandparents have disapproved of me from the beginning of our relationship and have maintained a vendetta against me which has only escalated following the date of separation.”

[27] As is detailed below, the Father believes the Mother was traumatized as a child at the hands of the Grandparents as a result of something the Mother said in her sleep one night. Irrespective of whether this is accepted, and there has been no evidence presented to support this allegation, the Father clearly does not support the Grandparents in playing a role in the children’s lives. In fact, the Father has undermined the role of the Grandparents in the children’s lives in the presence of the children. Given the closeness between the Mother and family, this has adversely impacted the Mother.

iii. Each parent’s willingness to support the children’s relationship with the other parent

[28] I find that the Mother is willing to support and maintain a healthy relationship between the Father and the children. The same cannot be said for the Father.

[29] The relationship between the parties has been conflict-driven for many years. Nonetheless, even in periods of separation, the Mother has facilitated parenting time with the Father. When they separated for a short period in 2016-2017, the Mother allowed the Father to come to the Property to spend time with the children even though the terms of his release prohibited it. After the parties finally separated in 2018, the Mother briefly left the Property with the children, but then returned with the children shortly thereafter and lived with the Father in the Property for almost another year.

[30] When the Father was eventually removed from the Property by police in June 2019, following another incident of family violence, the Mother ensured that the Father resumed parenting time within weeks. The Mother agreed to expand parenting time on a gradual basis so that by the end of October 2019, the Father had parenting time every other weekend, two additional evenings each week, and a phone call on each day the children were not with him. This continued despite the fact that such continual and constant interaction between the Father and the Mother and her family only led to continued and escalated conflict, as detailed below.

[31] The Father has always maintained that he is in favour of an equal parenting arrangement. On its face, this position appears to support a relationship between the children and the Mother. What the evidence shows though, is that the Father attempted to convince the children it was the Mother who has kept the family apart, and that the Mother is not well and has mental health problems. This is not an attempt to support a relationship with the Mother, but rather seeks to undermine the relationship and diminish the Mother’s role in the children’s lives.

iv. History of care of the children

[32] The Mother is an accountant. Nonetheless, the Mother took full maternity leaves following the births of N.E.B. and the twins. The Father took no parental leave. During the second maternity leave, the Father was charged with assault and was forbidden from coming to the Property, but the Mother nonetheless facilitated parenting time at the Property.

[33] It is acknowledged that in or around mid-2015, when the Mother returned to work after her first maternity leave, the Father had Mondays off and took care of the children while the Mother worked. For the remainder of the days, the Mother dropped off the children at the maternal grandparents’ home before work and picked them up after. Following the Mother’s second maternity leave, the Father worked from home on Mondays and Fridays. For the remaining days, the children were with the Grandparents while the parties worked.

[34] The Mother claims that, throughout the relationship, she was the parent who took the children to their medical and dental appointments and attended all extra-curricular activities. She was assisted by her extended family, mostly the maternal grandmother.

[35] The Father maintains that he has always been the children’s primary caregiver, from birth. He claims he arranged all play dates, extra-curricular activities, and medical and dental appointments. He was in charge of the bedtime routine. The Mother claims that the Father only started attending medical and dental appointments after the separation.

[36] The Father has provided letters from the family dentist showing that he did attend appointments both before and after separation. The family doctor also wrote a letter in 2019 indicating that she has seen the Father at many appointments for the children. I accept this evidence.

[37] Following the removal of the Father from the matrimonial home in June 2019, the parties agreed, on a without prejudice basis, that the Father would have parenting time three times a week, with no overnight access. Following a contested motion on August 27, 2019, it was ordered that the children would reside primarily with the Mother, with parenting time with the Father increasing over six weeks. This temporary order meant that, by mid-October 2019, the children had parenting time with the Father two evenings per week and alternate weekends from Friday after school until Sunday at 4:00 p.m. That order remained in place until trial.

[38] I have no difficulty finding that both parties were involved in the care of the children, and neither one of them was the “primary care” provider. Both provided care to the children, dependent on their work schedule. With the help of the maternal grandparents, the children were well looked after.

v. The children’s views and preferences

[39] On June 21, 2019, at a case conference, the Office of the Children’s Lawyer was requested to become involved. Unfortunately, they declined to do so. Accordingly, the views and preferences of the children have come through the evidence of the parties and Peel Children’s Aid Society (“CAS”) records that were made exhibits at trial.

[40] The admissibility of out of court hearsay statements was addressed in my evidentiary ruling. As indicated, statements by the children to the Father or Mother will be considered as a way to ascertain the views of the children. In addition, I will consider the statements made by the children to CAS workers. The degree of weight to be given to the statements of the children will be assessed depending on the particular circumstances in which it was given, and by viewing the evidence in its entirety.

[41] The views and preferences of the children, provided through the Mother, are that, in general, the children enjoy time with both parents, although the nightly phone calls with the Father can cause problems. Understandably, the twins are not quite old enough to fully engage and at times are uninterested in a nightly phone call with the Father when they are with the Mother. This has been a source of conflict between the parties.

[42] The Mother did report to the CAS in June 2021 that the children told her the Father grabbed them by the neck and punched one of the boys in the face with a remote for changing channels. Given the circumstances and the severity of the allegations, the Mother was not sure if this was true.

[43] On the other hand, the views of the children, as reported by the Father, are more negative against the Mother and even more so against the Grandparents.

[44] The Father reports generally that the children tell him they are afraid of the Grandmother and that she disciplines them harshly. He reports that they tell him they are intimidated by the Mother and her family and are afraid to tell the Mother that they think the Grandmother is an angry person. The Father claims the children are always asking to spend more time with him, and that they miss him.

[45] Following an altercation between the Father and the Grandmother on June 1, 2021, as detailed below, the Father told the CAS worker that the eldest child reported to him that the Mother punched the child in the stomach and that the Grandmother made her drink milk with gasoline to make her throw up. She then told the Father she was just pranking. The Father also reported that one of the twins told him the Grandmother slapped him in the mouth.

[46] The children have been interviewed by the CAS on a number of occasions. The CAS reports that generally the children appear happy while with both parents, but the children have advised them of instances of family violence they have observed. When the CAS became involved in 2019, N.E.B. reported that she was present when her parents were yelling at each other and that she remembers seeing the Father slam a door in her Mother’s face, stubbing her toe. The twins have also reported to the CAS that the Father punched the window of the driver’s door of the Mother’s car. Given these reports by the children, the CAS worker verified that the children were at risk for emotional harm as a result of partner violence. The parents were agreeable though to accepting ongoing services, so no further steps were taken by the CAS.

[47] In 2021, the CAS interviewed the children again on a number of occasions.

[48] In June 2021, the children reported to the CAS that the Father is scary when he gets angry and that he uses bad words. One of the boys also reported that the Father “fake punched” him towards his face, which upset him. He knew that the Father was not joking around at the time. The eldest child reported that the Father said negative things about the Grandmother and the Mother, which made her feel uncomfortable. She reports that she saw her Dad twist her Grandmother’s arm and that it made her sad and she wanted to intervene to stop it.

[49] Also in July 2021, when interviewed by the CAS, the eldest child reported that the Father twisted her foot and her brother’s foot because they were kicking the vent in his car. The Father reported that there was a misunderstanding and that he was just trying to move their feet. The CAS concluded that there was a risk of physical discipline by the Father.

[50] In October 2021, the CAS interviewed the children and they reported no physical abuse. The eldest child did report ongoing conflict between the Father and the Grandmother at parenting exchanges.

[51] The CAS interviewed the children again in November 2021. At that time, the eldest child stated that she liked her Father’s home more because he has more time to play and does fun things with her. She indicated that she is not afraid of any of the adults in her family, but said she is afraid of the Grandmother because her Father told her that her Grandmother locked her cousins in a bathroom. The daughter also reported that, when her Father speaks of broken families, he cries in front of her. The Father admitted to crying in front of the children when discussing the family but calls them “pure moments”.

[52] The CAS records also reveal that the children were interviewed by the Special Victims Unit of the Peel Regional Police in or about June 6, 2021. This interview was the result of the Father’s report that the children were at risk with the Mother and Grandmother. The police interviewed the children, as well as the Father, Mother, and Grandmother. In the end, the police found no reason to suspect that the children were at risk when spending time with the Mother or the Grandparents.

[53] I have no doubt that the children enjoy their time with the Father and that they miss him when they are not with him. I expect the same is the case when they are away from the Mother. Given the ages of the children though, I do not believe this to mean that they seek “equal” time with each parent, but rather are expressing their views in a particular moment when it is time to change homes.

[54] I do not accept the children’s evidence, provided through the Father, that they have been subjected to corporal punishment by the Mother’s extended family. As indicated, the CAS had no concerns that this was happening after interviewing all parties involved. If anything, the CAS found that the children were at risk of physical harm by the Father.

[55] Also, the views of the children, as elicited by the Father, are tainted by what they believe he wants to hear. As will be detailed below, the Father speaks regularly about the Mother in the presence of the children. In particular, he speaks about the need for the Mother to see a counsellor, or that she lies to the children and they will hate her. The daughter reported that she was afraid of the Grandmother because the Father told her that she locked her cousins in a bathroom.

[56] After considering all this evidence and the circumstances in which it was elicited, I find the views and preferences of the children, as told to the CAS, are the most reliable. These statements are made to a person to whom they do not feel loyal. They have been consistent in their forthrightness over a few years. What is clear is the children’s preference to spend time with both their parents, but without being involved in adult conflict or witnessing any more family violence. They have expressed no preference for “equal time” with each parent, which is the Father’s request.

vi. The Children’s heritage

[57] The Mother is of Trinidadian heritage and is a person of colour. The Father is white. The children share the heritage of both parents.

[58] The Mother appears to respect both heritages of the children. Unfortunately, the Father harbours some misperceptions about the general mental health of people from the Caribbean and how they raise their children. The Father repeatedly maintained that the Mother was abused by the maternal grandparents when she grew up and, as a result, was traumatized. He believes this trauma is why she left the marriage and will not agree to equal parenting time.

[59] A few examples of these views include:

a) In text to the Mother on April 30, 2019, the Father stated, “[The Department of Justice] and Family courts are very familiar with the West Indian culture & upbringing & are aware of abuse.”

b) On February 19, 2019, the Father texted the Mother stating, “As I’ve said & heard from a prof your stress & other issues can be causing you problems. High rate of mental health issues associated to people of your ethnicity & profession.”

c) On January 26, 2021, the Father texted the Mother stating, “I spoke with a psychologist who’s had clients who came from a poor country or background & push their children academically as symbols of success & triumph of overcoming. Sadly a lot of collateral damage on this road to success in the forms of isolation & abuse…What do you think about this interesting statistic?”

[60] These attitudes can only be harmful to the children, as they share this heritage. They should be raised to be proud of their heritage from both sides of the family. The Father’s preconceived and erroneous notions about the children’s ethnicity on the Mother’s side are damaging to the children, their self-esteem, and sense of self-worth. Exposing these opinions of the Father to the children, even as an unconscious bias, are not in the children’s best interests. Given the evidence, these biases do not appear to be unconscious.

vii. Plans for the children’s care

[61] The Mother’s plan of care involves continuing with the children in their current school and continuing to use the Grandparents and her extended family as support and childcare. The children are doing well in their school and enjoy seeing their cousins on a regular basis. She agrees that the children should continue to have parenting time with the Father, but that it should be reduced to only alternate weekends and one short weeknight visit, until such time as the Father addresses his anger issues and stops involving the children in the conflict. In order to assist herself in navigating the post-separation parenting regime, the Mother has also enrolled in a parenting class recommended by the CAS.

[62] It should be noted that the children’s current school is not in either party’s catchment area. The parties utilized the maternal aunt’s address so that the Grandmother would be able to pick up all the grandchildren at schools in the same general area and care for them after school. The parties have benefited from this free childcare.

[63] The Father’s plan for the care of the children is that both parties should cooperate in making all decisions. The children should live with each parent for an equal amount of time on a 2/2/3 daily schedule. The children would be enrolled in George Kennedy Public School which is in the Father’s catchment area. That would significantly reduce commuting time for the Father and children for days they reside with him. He wants to extricate the Grandparents from having such a large part of the children’s post-school care.

[64] The Father provided a letter from the family doctor, Dr. Jacqueline Ramchatesingh. The Father produced this letter in support of his claim for equal parenting time. This letter, dated January 22, 2020, states as follows:

I have been the Pediatrician for N., B. and B for the last few years. I understand the parents are separated. I don’t want to get involved win [sic] their legal matters. Father informed us of anew address on January 16th. The address was changed. Our clinic would not know the living situation of how the kids are being shared and we would not know current address information. Dad provided us with new address which was imputed into the charts for the kids. Unless parents are here together or we have some legal document we cannot verify where the kids are living. I hope that there is some reconciliation or that the kids are shared equally. I hope this letter helps. I am just the Pediatrician trying to help the kids and their parents.

[65] Unfortunately, this letter has little evidentiary value. As the children’s treating physician, she should have been called as a witness, or the appropriate notice served under the Evidence Act, R.S.O. 1990, c. E.23. Having not had the benefit of cross-examination by the Mother, there is no way of this court knowing what was said to the doctor about the children, the Mother, or the Father. The doctor made it clear that she did not want to get involved and does not really know the situation. Her “hope” is nothing more than that the children may be shared equally and that is of little assistance to this court.

viii. The ability and willingness to care for and meet the needs of the children

[66] I have no doubt of each parent’s willingness to care for the children and meet their needs. Unfortunately, the Father’s lack of insight into his actions, and the impact they have on the children, causes concern. As detailed below, the Father’s ongoing habit of involving the children in adult conflict and the incidents of family violence show that the Father is unable to put the children’s best interests ahead of his own agenda.

ix. The ability and willingness to communicate and cooperate

[67] There is no presumption in favour of granting joint decision making responsibility to both parents in some or all areas: Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 10 R.F.L. (6th) 373 (Ont. C.A.).

[68] In order for the court to consider joint decision making, there must be evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis, especially when the child is young: Kaplanis, at para. 11; McBennett v. Danis, 2021 ONSC 3610, at para. 97(13); Berman v. Berman, 2017 ONCA 905, at para. 5.

[69] The ultimate goal in crafting an appropriate decision making regime is to promote the child’s right to grow up within a parenting regime that is cooperative and effective, where the decisions are made in a child-focused way and with the least amount of acrimony and stress: J.B.H. v. T.L.G., 2014 ONSC 3569, at para. 354; McBennett at para. 96. Hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody, or joint decision making, as it is called now: Kaplanis para. 11

[70] There are many ways in which decision making responsibility can be allocated between the parents. I must consider all options, not just those proposed by the parties: Chomos v. Hamilton, 2016 ONSC 5208, at para. 109. Evidence that a party tends to place their own wishes and needs over the child’s overall best interests will often vitiate against an order separating out aspects of decision making, even if that party is in all other respects a loving and competent parent: McBennett, at para. 98(6).

[71] In cases of family violence, particularly spousal violence, it is crucial that the court consider whether a cooperative parenting arrangement is appropriate. A victim of family violence might be unable to co-parent due to the trauma they have experienced or by reason of ongoing fear of the perpetrator. In addition, cooperative arrangements may lead to opportunities for further family violence: Bell v. Reinhardt, 2021 ONSC 3352, at para. 15.

[72] Unfortunately, the parents before me are unable to cooperate and communicate in a healthy and respectful manner that is required for joint decision making.

[73] Prior to trial, the parties were not able to agree on whether the children should attend in person or online schooling during the pandemic. The parties cannot agree on what school the children should attend going forward.

[74] When trying to determine school matters, the Mother has tried to reach out to secure the Father’s agreement (such as whether N.E.B. should be in the French immersion programme), but the Father takes unilateral action without consideration of the Mother.

[75] The Father reports a number of issues with his children at their current school. He claims that the daughter is bullied in school and that she received a death threat. I see no evidence that either occurred, and the school has not indicated anything of this nature. The school acknowledges that there have been occasional disagreements or fights between the children and their friends, but nothing out of the ordinary for children of their age. The Father seems overly concerned that his children, who are Christian, are attending a school that is over 90 percent Muslim.

[76] The parties also cannot agree on health issues. The Father claimed to have concerns about COVID-19 but engaged in risky behavior by unnecessarily exposing the children. Also, when vaccinations became available for the children, the Mother wanted to have the children vaccinated, but the Father refused to consent. He professed to have done his own research online and knew what was best. He advocated for a vaccine that was not yet approved, and even then would not agree to having his children vaccinated right away. He was not vaccinated himself as of the date of the trial.

[77] The parties also do not agree on the children’s mental health. The Father claims the children are “traumatized”. This is a word he has used, and he has never provided any expert opinion evidence to support this claim. The children’s school has never indicated that they saw any signs of trauma. The CAS concerns are set forth in this decision, but do not accord with the Father’s views. To alleviate the concerns of the Father, the Mother agreed to an intake with Reach Out Center for Kids (“ROCK”) in December 2020. After reviewing the concerns of both parents, ROCK did not feel counselling was warranted. The Mother offered to do another assessment again in September 2021, but the Father did not believe ROCK could offer what was needed.

[78] Also, rather than communicate in a reasonable manner, the Father uses the police when he does not believe his parental rights are being respected. In addition to subjecting the children to an interview by the Special Victims Unit of the Peel Regional Police, the Father has called the police to do “wellness checks” on his children, or threatened to do so, when he was not happy with the quality of their phone conversations. For example:

a) On the daily phone call of September 21, 2021, one of the twins was having a tantrum and was screaming. When he calmed down and fell asleep, the Mother would not wake him to speak to the Father. The Father called the police and asked for a wellness check. The police attended at the Mother’s home, spoke to her, had to wake up the child to speak to him and determine everything was fine. The Father claims that the child was traumatized;

b) On October 1, 2021, the Father texted the Mother that he would call the police if he did not speak to each child and confirm their activities and see that they were okay, every night that he had a phone call;

c) On October 4, 2021, he texted the Mother that he would call the police if he could not verify the location of his children during the phone calls;

d) On October 15, 2021, he texted the Mother saying he was going to park on the street by the house so he could see the children when they spoke to him on the phone. He said he would hang out at the children’s school or the community centre, during her parenting time; and

e) As late as January 10, 2022, just days before this trial started, the Father again called the police because he didn’t get his call with the children at the right time. He texted the Mother and told her if he didn’t get his call, he would call the police. The Mother did not see the text; a call was made; nonetheless, the police arrived to do a wellness check. The police needed the Mother to wake up the children so that they could ensure the children were fine.

[79] I also have concerns about the Father’s willingness to comply with court orders, especially with respect to parenting. Although the parties agreed to a neutral exchange location, which was made into an order, the Father would, at times, refuse to attend and insist the Mother come to his house to get the children. One of these occasions was on Mother’s Day in 2021. The Father, at times, claimed he could not afford the gas for the trip to the agreed upon exchange location. In a text dated March 28, 2021, he refused to bring the children to the exchange location until the Mother e-transferred him the sum of $580 for a plumbing bill.

[80] Following a mediation in June 2021, the Father agreed to a comprehensive order that dealt with ancillary parenting issues. At first, he would not consent to the Minutes of Settlement becoming an Order. When he finally agreed to do so, five months later, he would still not comply with all of its terms. In particular, he agreed to communicating only by AppClose in June 2021, but by the date of this trial he had still not signed up, sighting security concerns over the app. In addition, he continued to leave voicemail messages to the Mother, sometimes involving the children, as a means not only to communicate but to harass her, contrary to the letter and spirit of the Minutes of Settlement. The failure to abide by court orders demonstrates that it is unlikely that the Father will act in a cooperative manner.

x. Impact of family violence

[81] If I find that there was family violence, I am required to determine if the violence has an impact on the perpetrator’s ability to meet the needs of the children. I am also required to consider whether the violence has an impact on the appropriateness of cooperation between the parties on issues affecting the children.

[82] Family violence is defined in the CLRA as any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct. It includes physical abuse, sexual abuse, threats, harassment, psychological abuse, and financial abuse, amongst others: 18(1),(2), CLRA.

[83] In the case before me, I have found physical violence and psychological abuse as against the Mother, and emotional harm to the children perpetrated by the Father. The impact of this family violence is such that cooperative parenting is not possible nor appropriate. It has impeded the Father’s ability to meet the needs of the children.

Physical Violence

[84] In this case, I have found that the Father has perpetrated physical violence upon the Mother on a number of occasions, and on the Grandfather at least once. At least two incidents of violence against the Mother, and the incident against the Grandfather, were committed in the presence of at least one child.

[85] The first incident reported by the Mother occurred on May 3, 2015. Their first child was almost one year old. She reports that she and the Father were arguing. He was holding the child. He put the child down, walked over to her, and punched her in the mouth. They were supposed to go out with the Mother’s family that night to a restaurant. They still went out. The Mother said she spoke to her sister first and told her what happened and asked her not to make a big deal over it. This evidence was corroborated by the sister, who was a witness at trial. The sister reports that the Father laughed and said it was a wresting accident. Both the Mother’s sister and brother noticed her swollen lip.

[86] The Father denies this. He said that the Mother attacked him and he extended his arm to defend himself and the Mother “ran into my fingernail causing a minor cut on her lip.”

[87] With respect to this incident, I find that the Mother’s evidence is credible. Her evidence is corroborated by her sister’s testimony. A swollen lip (witnessed by two other family members) does not accord with the Father’s version of a minor cut due to running into a fingernail.

[88] The Mother reports that in June 2016, when the twins were only three months old, the Father grabbed the Mother by the neck and pulled her from the kitchen to the front door before he let her go. She reported that she had difficulty breathing. She left the home with the children and lived with the Grandmother for a week before she returned. The Grandmother corroborated this account.

[89] The Father denies choking the Mother. He indicates that he remembers a heated argument and that the Mother attacked him. He claims the Mother was having a “postpartum” episode and she went to live with the Grandmother for a while but does not recall how long. When confronted with his affidavit evidence on the episode, he had no explanation as to why he never alleged she assaulted him and why he did not raise those facts until trial. His affidavit evidence simply stated that she woke up asking if he had touched her while asleep. His inconsistency between his affidavit evidence and his evidence at trial makes his evidence unreliable and not credible.

[90] On or about November 1, 2016, approximately one and a half years prior to separation, the Mother called the police and reported that the Father had pushed her down on the couch and, when she tried to get up, he put his hands around her neck and squeezed. The police arrived and witnessed a mark on the Mother’s neck. The Father was charged with assault. No children were present.

[91] The Mother indicates that she never wanted the Father charged; just wanted him scared enough that he would not hurt her again. The police charged him anyway. The Father was not permitted to live in the Property from November 2016 to April 2017. During that time, she facilitated parenting time in the Property, with herself present, contrary to his bail restrictions. The Father completed the Partner Assault Response Programme (PARS). They reconciled in April 2017 and he moved back in.

[92] As a matter of course, the CAS visited with the Mother a few days after the assault. At that interview, the Mother told the CAS worker that the Father did not really choke her but did push her down. She claimed she only wanted to scare the Father and did not want him charged.

[93] At trial, the Mother testified that, in fact, the father did choke her as initially reported. She admitted to lying to the CAS but stated she was at a low point and was desperate to save her family. She reports that the Father told her she would have to deny the assault to the CAS or the children could be taken away. She regrets that she misled them, but claims that her evidence, under oath in her affidavit and on cross-examination, is the truth.

[94] The Father admits that he pushed her down, but he says it was because she got up too fast. He denies choking her and says the red marks were from her rubbing her own neck. He relies on her report to the CAS as evidence that she lied to the police and is lying now. In his trial affidavit, the Father claims she was asleep on the couch and she jumped up aggressively and he pushed her off, just to protect them both from hitting each other. The Father maintains the Mother spoke of childhood trauma of choking in her sleep and being locked in a room and closet. He states in his affidavit, “The Mother of my children who I love [h]as inner trauma she is struggling with.” The Father said he took the PARS course only because the Crown wanted it and he did not deserve to take it as he was the actual victim. He still maintains that the Mother was suffering from “post partum” and childhood trauma and needs to focus on her mental health: “She needs counseling, support and lots of love which my children and I will always provided [sic].”

[95] With respect to this choking incident, I accept the Mother’s evidence. Her decision to recant is consistent with her previous actions of returning to the home after being assaulted, and her desire to keep her family together. In addition, the Father’s evidence that he was the victim of physical violence is not substantiated in any manner. The Father was charged with assault, not the Mother. I am also concerned with the Father’s sustained position that the Mother has mental health issues leading her to be abusive. As detailed below, there is no evidence of this whatsoever. Also, the Father’s position that he continues to love the Mother and wants to help her, reiterated in his testimony at trial, shows he lacks insight into the reality that the relationship is over. His desire to insert himself in her life “to help” is not appropriate.

[96] The Mother also reports that in 2018, while they were having an argument, the Father was following her around the house insulting her. He closed a door on her foot and held it there so she could not move. The eldest child witnessed this incident and actually reported it to the CAS when they interviewed the family.

[97] After separation, and until the Father left the Property, the atmosphere was tense. The Father took to filming events around the house, trying to show that the Mother and her family were trying to force him out of the Property. He alleges they put boots in the dryer after he was asleep just to wake him and torment him with the sound. He has provided a video of him following the Grandfather down the stairs, in the midst of an argument, showing the Grandfather opening the cutlery drawer. The Father takes this as a threat. I am not sure what it shows except that the atmosphere in the Property looked unbearable for all parties.

[98] On the morning of June 3, 2019, the Mother was strapping the eldest child in the car at the Property. The Father told the child that he would introduce her to a step-mom. The Grandfather was also present and told the Father to leave the Mother alone or even just to leave the house. It appears there was some pushing by both the Father and the Grandfather. The Grandfather may have thrown a punch, but it is clear that the Father punched the Grandfather in the face, in front of the child and the Mother. The police were called. Both the Grandfather and the Father were charged with assault. As a result, the Father was no longer allowed to reside in the Property.

[99] The Father denies that this occurred. Instead, he claims that he was assaulted and the Mother falsely reported to the police that the Grandfather had a fat lip. In his police interview, he claimed that the Grandfather punched him in the face and then again on the side of the head. The Father had no revisable injuries. He claims the Grandfather’s injuries must have been caused by the Grandfather himself or by the Mother in order to get the Father into trouble.

[100] With respect to this incident, I find the Mother’s evidence more credible. Although the Father claims he was assaulted, the police occurrence report, produced by the Father, clearly states that the Grandfather had a small cut to his upper lip. The Father provided no evidence that he sustained injuries. The theory that the Grandfather inflicted injury on himself or that the Mother struck her own father, before the police arrived and when the child was still in the car, defies logic and is fanciful at best.

[101] The Father also alleges that he has been a victim of physical violence at the hands of the Mother throughout the relationship. He says that the Mother would get so angry that she would slap, kick, punch, or scratch the Father. He claims it got worse after she had the children, and he suggested to her that she get counselling. He claims this occurred, first, because she suffered from “post partum”. Later, he claims it was because she suffered from unresolved childhood trauma. These allegations lack credibility given that the Father has not provided any evidence that the Mother suffered or suffers from these afflictions. There are no reports of violence by the Mother or charges laid against her. The Father has shown no hesitation in contacting the police on numerous occasions to report harm to the children at the hands of the Mother, but he never reported the Mother being violent against him at the time of these alleged events.

Violence Against Property

[102] The Mother also reports incidents of violence by the Father directed towards property. In the summer of 2016, he punched a kitchen chair in the presence of the daughter, who was two years old. In August of 2018, he repeatedly hit and threw the children’s toy horse during an argument, breaking the head of the horse. She called the police on that occasion. No charges were laid, but the police ensured she was able to leave the home safely.

[103] In January 2019, the parents attended an enrollment information session for the twins at the Kendellhurst Academy. The Mother was in her car with the twins. The Father came over to speak to her and told her to roll down her window. She rolled it down a bit, but when she refused to roll it down further, the Father started screaming at her. When she tried to back the car away, the Father grabbed her window and started punching the side of the Mother’s car window. The twins observed it and disclosed this to the CAS. The Father later called the police and alleged that she tried to hurt him with her car. This allegation was determined to be unfounded. No charges were laid against either party.

Psychological Abuse

[104] I also find that the Father psychologically abused the Mother.

[105] The Mother claims the Father would follow her around the house when they argued, not allowing her to sleep. She would have to sleep in the van to escape him. The Father denies this, claiming he was calm and that she was in a “manic state”. He denies she ever slept in the van.

[106] The Father often texted or emailed the Mother, denigrating her, blaming her for breaking up the family, and threatening her that the children would blame her and leave her as a result. A small sample of his texts include:

a) On April 22, 2019, the Father blamed the Mother for breaking up the family, threatening her that the children will leave her;

b) On April 23, 2019, he told her that the children “will know” that the Mother gave up on them;

c) On October 14, 2020, he stated, "[Y]ou are emotionally & psychologically abusing our children as defined by psychology in denied family & or equal parenting”;

d) On May 5, 2021, he told her that the children hate her for taking away their childhood;

e) On May 27, 2021, the Father claimed that "47 mothers say you've failed to be the mother [the children] deserve". They claim that by seeking to enforce the current parenting schedule, she committed "child abuse". He further claimed, "The mothers in the community hate child abusers & people who support them & feel people need to know";

f) On May 28, 2021, the Father stated, "Your behavior is abusive & is permanently damaging our children & no one around you is in healthy relationships which begs the question of mental health. Your family supports the abuse of children in denying parental care which again begs the question of mental health”;

g) On August 23, 2021, the Father accused the Mother of keeping the children from him by refusing to consent to a shared schedule. He claimed this was "traumatizing & considered abusive behaviour by psychology";

h) On October 6, 2021, the Father asked the Mother, "[H]ow do you feel traumatizing our children & unjustly forcing them from their loving father over money? Many mothers in the community ask?”

[107] Despite the separation, and despite the violence I have found occurred, the Father continues to ask the Mother to join him on various outings — to a cottage, Las Vegas, or a beach. He continues to ask her to hug or kiss him in front of the children, saying it would be good for the children to see their parents acting this way.

[108] In addition, and as previously indicated, the Father alleged the Mother acted erratically at first because she suffered from post-partum depression. As the children grew older, he started to allege that she was abused as a child or had suffered childhood trauma, and that this explains her poor behaviour and parenting choices. In particular, he alleges she was abused by her parents, based on what he heard her mumble in her sleep at night. He claims that she was a good parent but suffered trauma at the hands of the Grandparents when she was young. As such, the Grandparents are to blame for breaking up the family. Either way, he continues to maintain that the Mother suffered from mental health issues. He fails to acknowledge any other explanation for her leaving the relationship.

[109] In an email to the Mother’s counsel, dated February 25, 2021 (two and a half years after separation), the Father stated:

My children miss their father and have had time stolen from a loving caring father due to unresolved and continued mental health issues which is believed the root cause as explained by professionals. I was cautioned to stay away from your client as described by professionals your client is believed to have a personality disorder of which she possess the ability to plot and plan with mendacious behaviour to achieve a desired goal by any means. My children are unhappy with the traumatic life your client has set for them. Your clients court order was obtained by committing fraud for financial gain with zero truth, the psychologist is extremely surprised the courts separated the children from equal parenting as the courts know this is extremely important to maintain especially when no issue exists with the children and the respondent.

[110] No evidence of any “professionals” or “psychologists” was tendered by the Father. To be clear, at no time has the Mother every been diagnosed with any mental health disorder, either post-partum depression or as a result of living with any supposed trauma. Both the Grandmother and the maternal sister gave evidence that they were often around the Mother after she gave birth and they saw no signs of post-partum depression. After the birth of the twins, they remained in hospital for a few weeks, where the Mother attended the children constantly. No issue was ever raised by the hospital. She was also followed by a community nurse after the birth, as was the practice for all new moms, and no issues were ever identified. The Mother readily admits she later did attend counselling, but it was to address the end of the marriage and ongoing conflict with the Father.

[111] I find that this constant denigration of the Mother, including threatening the loss of her children and insisting that she had a mental health disorder, is a form of psychological abuse. The Mother suffered this abuse throughout the relationship, and it intensified after separation. The ease with which the Father diagnoses the Mother with a mental illness to reduce her parenting time, without any evidence (let alone medical evidence), shows he does not understand that his behaviour makes cooperative parenting unlikely, if not completely unworkable. It also shows that he has no understanding that this type of conduct has a negative impact on the children. He is more focused on how the parenting arrangement affects him.

Emotional Abuse Against the Children

[112] The Father shows no hesitation in involving the children in the conflict. In March 2019, the CAS verified that the children were at risk for emotional harm due to exposure to adult conflict. The CAS cited that the eldest child witnessed the Father slamming the door in the Mother’s face and catching her toe, and the twins witnessed the Father punch the Mother’s car window. No further steps were taken by CAS only because the parents were willing to work with the society.

[113] In addition to the violence the children witnessed, the Father has used them as weapons in his battle to obtain equal parenting.

[114] The Father had a habit of leaving voicemail messages for the Mother when the children are audibly present, saying negative things about the Mother or involving the children directly in their dispute. Some examples include:

a) On February 17, 2021, he left a voicemail for the Mother, in which the eldest daughter was present and participated, where he asks the Mother to stop saying negative things about him because it makes the children have a negative view of him, and suggests she speak to a counsellor with the children;

b) On May 13, 2021, he left a voicemail for the Mother in front of the children, asking the Mother to change her parenting time so he could take the children to a cottage, telling her that police would be there so it was safe. He then had all the children ask, “Please mom, please mom, we want to go”;

c) On May 21, 2021, the Father left a voicemail for the Mother, which starts off with one of the children saying, “Daddy wants to say something to you.” Then the Father accuses the Mother of lying to the children and misleading them, and that the children will resent and hate her because of it;

d) On September 12, 2021, the Father is in the car driving with the children when he accuses the Mother of not giving the children balanced parenting time, that her schedule is damaging for the children, and that she should change it on her own without a psychologist “doing it for her”. He also says the children would like to see more of him, and more “of us”. He then prompts the children to say “Hi mom” at the end before he hangs up; and

e) On September 21, 2021, the Father left a voicemail message for the Mother, saying “It’s Daddy”, and that the children miss Daddy, they want to be a family, and want her to share the children more. He then advises her that he wants to show up at all the extra-curricular activities to show he loves them and supports them. The children participate in the message, saying what activities they have. At the end, he prompts them to say, “We love you mommy.”

[115] The court reviewed these voicemails as part of the evidentiary record. In the messages, the Father clearly had no qualms exposing the children to his negative messages to the Mother (although he uses a child-friendly tone), and willingly involves them in the process. While the use of video recordings is generally discouraged, exceptions may be made when the recordings were not surreptitious, and the probative value outweighs the policy considerations against their use: Van Ruyven v Van Ruyven 2021 ONSC 5963 at para. 32-35. In this case, the Grandmother provided a video of the Father, taken by her at an exchange, showing the Father videotaping the Grandmother as well, with two children playing right beside him and the other in the car near him, while he says:

Are you saying negative things to the kids? The kids are reporting that you are saying negative things to the kids. So we are going to have a psychologist check on everybody and see what is going down.

[116] When the Grandmother told him to get himself checked, he said he already had.

[117] On June 1, 2021, the Grandmother went to the exchange location to collect the children. She was having difficulty getting one of the twins in her van. The Father was circling the van, peeking in, taking pictures, and claimed that the Grandmother slapped the child with the seatbelt. He also reported that the Grandmother threatened him. The maternal aunt saw the Father grab the Grandmother’s arms, although he claimed he was trying to stop her from pinching the son. The eldest child also reported seeing the Father grab or twist the Grandmother. All three children witnessed this altercation between the Father and the Grandmother. The police were called. No charges were laid.

[118] The Father reported it all to the CAS the next day. He reported that the Grandparents did not like him asking about the Mother’s past because he believes she was subjected to childhood trauma. He reported that the Grandmother was evil. He reported that the Grandmother threatened harm against him if the Mother had to pay child support. The police later reviewed the body camera of both the Grandmother and the Father and found no threat by the Grandmother. Faced with this lack of evidence of the threat, the Father wanted a forensic analysis of the Grandmother’s cell phone because he believed the threat may have come from her phone that was beside the car seat. The police declined.

[119] A few days after this incident, the Father contacted the Peel Regional Police Special Victims Unit and reported that the children were being abused by the Mother and the Grandmother. He did not think he should return the children at the exchange time. The children were interviewed by Special Victims Unit officers. The police also interviewed the Mother and Grandmother, and determined the allegations were unfounded. No charges were laid. The exchange occurred as scheduled.

[120] There is no evidence that the Father has done anything to address his anger issues, beyond attending a PARS programme in 2017. However, he now maintains he did not need to take it, as he was the victim. This denial and failure to address his anger, given the subsequent incidents of physical violence, causes great concern. It is also concerning that his anger against the Mother and extended maternal family is evident to the children, especially the oldest child. His inability to control what he says in the presence of the children shows he lacks insight into what is in the children’s best interests. He is blind or oblivious to the harm he is causing the children.

Financial Abuse

[121] The Mother is an accountant. She earns more than the Father. If she loses her job, it will have a significant financial impact on the family. Despite that fact, the Father threatened to speak to her employer, and her professional governing body, to report her allegedly abusive behaviour. In particular:

a) In an email to the Mother’s lawyer, dated November 19, 2019, he stated:

Family and friends have expressed contacting or having a child advocacy group contact your client and her employer to advise what your client is doing to the children and denying parental care in hopes of influencing positive change as your client has refused to meet with church, counsellor or child psychologist to seek guidance with modern day parenting and the damage your client is doing by denying maximum shared parental care.

He claims he has asked them not to do this, but they will act on their own accord.

b) In an email to the Mother’s counsel, dated February 25, 2021, the Father stated:

Your client is in a profession that not only has a code of conduct that places honesty and ethics at the top of this code but is contingent on having the designation both in and out of the office environment which your client has clearly demonstrated that these are not valued by this fraudulent application for pecuniary gain believed by the community and my employer. This is alarming to the community along with the care of the children's well being and parenting being unjustly denied and the community has there [sic] own reasons for potentially involving your clients employer and governing CPA body and even the authorities to conduct independent investigations into your client's actions of fraud. I personally am not for this nor want to see your clients employment impacted or reputation smeared with colleagues and I hope your clients quick action can prevent this.

c) On May 27, 2021, in a text from the Father’s phone, the Mother received this message:

The community feels your employer should & will know what kind of person they pay to work in there [sic] office. This is your legacy as a mother. We do not want the children to be deprived of a healthy mother. I suggest you create a balance for the children this week & work at a great co parenting life with [the Father] & seek counselling both Dr. Stevens & the judge directed or we will seek evaluation & sec30 with doctor, Police & video of the trauma you speak of in your sleep.

I was advised they will email your employer, sister, brother in law & father’s employers & all staff with a press packet which includes video. I say this as [the Father] is against this & has nothing to do with. The mothers in the community hate child abusers & people who support them & feel people need to know. [The Father] believes this will potentially cause unnecessary damage as people may react in a negative way so for that reason we agree & hold. We will purse this in court as the alternative if you don't create balance now for the children with counselling.

From the community of mothers who care[.]

[122] The Father has never identified “the community”, or the family and friends who have these beliefs. None of these people were called as witnesses. The Father indicates that he never gave permission to the “community of mothers” to take his phone and send this message. He denies it is him who sent the message, although the threats contained in this text are strikingly similar to previous threats authored by him. I do not find the Father’s evidence in this regard to be credible.

[123] While these threats are not financial abuse in the manner most commonly recognized, the threat to the Mother’s livelihood and her professional reputation is a way of making her fear for her, and her family’s, financial security. The Father is threatening to embarrass her, get her fired, or disciplined by her governing body, if she does not agree to equal parenting time. While this is certainly psychological abuse, it is also a form of financial abuse.

c. Conclusion – Parenting

[124] The Mother has shown that she is able to make child-focused decisions with respect to the health, education, and general welfare of the children. On the other hand, the degree of physical and psychological abuse by the Father against the Mother, and the amount of emotional harm the Father subjects the children to, definitely impacts his ability to meet the needs of the children. He continues to lack insight into the damaging nature of his actions. He takes no responsibility for his actions and blames the Mother’s non-existent “mental health issues” for her decision to leave the relationship and protect the children from any further exposure to adult conflict. Until the Father seeks some professional advice about his attitudes and understands the damaging impact of his actions, he is incapable of having decision making authority with respect to the children.

[125] For these same reasons, I am not satisfied that prior consultation regarding decisions would be in the best interests of the children. I find that the Father will use any opportunity to discuss the children, or their status as a family, as a way to denigrate or belittle the Mother and undermine her in the eyes of the children.

[126] This situation is not that different from what is described by Justice Kraft in Ammar v. Smith, 2021 ONSC 3204. At para. 58(j), she states:

As set out in paragraph h. above, Vivian gave evidence of psychological and verbal abuse by Michael toward her. Vivian’s evidence was clear that Michael criticized and berated her in front of the children. Michael regularly made comments to the children about Vivian that were derogatory, suggesting that she is unfit as a mother; the family is dysfunctional and not normal; she has anger management issues; and she encourages the children to hate him. Given Michael’s lack of insight as to why it is not in the children’s best interests that he engage them in the conflict between him and their mother, it is unlikely that Michael will be able to change his conduct in this regard in the future unless he obtains professional assistance. The children are entitled to live with each of their parents in a conflict-free environment. Placing the children in the middle of the parties’ dispute can only lead to having negative implications for them in the long run. The number of times Michael called the police to the party’s home is indicative of how much conflict the children have been exposed to, which is concerning in terms of emotional and psychological harm to the children. These facts are particularly relevant in my decision to grant Vivian sole decision-making authority over the major decisions that impact the children so as to reduce potential for conflict in the future between these parents.

[127] The principles set out in s. 16(6) of the Divorce Act, and by analogy s. 24(6) of the CLRA, recognize that generous and meaningful parenting time with each parent is usually important and should be encouraged to the extent that it is consistent with the children’s best interests. However, it does not create a presumption in favour of equal time or maximum time with each parent. It is subject to the overriding best interests test, and to the paramount consideration set out in s. 16(2) of the Divorce Act and s. 24(2) of the CLRA of the children’s physical, emotional, and psychological safety, security, and well-being. The fact that this principle is specifically addressed in the sections of the legislation entitled “Best Interests of the Child” is significant and underlines the fact that it is but one consideration in carrying out the determination of best interests. The courts have clearly emphasized over the years that, while maximizing contact between children and parents is important, it is not an unbridled objective. If the evidence indicates that increased parenting time with a parent would not in fact support the children’s best interests, it should not be ordered: McBennett, at para. 89.

[128] In this situation, equal parenting time is not in the children’s best interests. The children also need to be removed from the conflict. Contact between the Father and the Mother, and her extended family, needs to be minimized until such time the Father can show he can stop using the exchanges to escalate conflict.

[129] The Father continually advocated for equal and “co-operative parenting”. Cooperative parenting is a good idea, but lip service to the concept is not enough. Cooperative parenting does not mean videotaping exchanges. It does not mean calling the police for safety checks when the Mother does not respond in twenty minutes. It does not mean allowing the children to observe physical altercations between the people they love most. It does not mean putting the children in the middle of the conflict and using them as messengers or as tools to further your litigation aims. Nor does it mean having your children participate in telephone conversations where the Mother’s motives and mental health are called into question. Lastly, it certainly does not mean diagnosing your former partner with mental health conditions for which you have absolutely no evidence in order to justify to yourself why she left.

[130] I have no doubt that the Father loves the children very much and that the children love their father and wish to have him in their lives. If not for the strong bond between the Father and his children, his parenting time would be further minimized. Until such time though, that the Father manages his anger, learns to put the children first, accepts that his relationship with the Mother is over, and lets go of his belief that everything that goes wrong is someone else’s fault, he cannot be the Father that the children need. It is not about the quantity of time that he spends with his children, but rather the quality of that time.

B. Child Support

[131] All retroactive support issues have been settled as of April 30, 2021. Accordingly, it is only ongoing support that must be decided beginning May 1, 2021. Nonetheless, the Mother has only sought ongoing support as of July 1, 2021. I assume that support for May and June 2021 was already addressed in some other manner.

[132] Given the parenting schedule I have ordered, the Father is required to pay monthly child support in addition to his proportionate share of s. 7 expenses.

[133] The Father’s income is a combination of salary and rental income. In 2019, his Notice of Assessment indicates he earned $70,840, being $69,207 in employment income and $1,633 in net rental income. In 2020, his Notice of Assessment shows a total income of $84,958, being $69,534 in employment income, $2,000 in employment insurance benefits, and $13,424 in net rental income. Accordingly, for July 1, 2021 to and including June 1, 2022, the Father should pay $1,676 per month in child support, using his 2020 income.

[134] For 2021, a letter from the Father’s employer, the Canada Revenue Agency, indicates that as of November 18, 2021, the Father’s current annual salary is $76,545. The Father claims he will have a higher income in 2021 because he received a lump sum payment for earnings owed to him prior to 2019. He provided a recent pay stub which shows the sum of $11,443.03 as “LWOP Unpaid Salary Pensionable”, which brings his year to date earnings for 2021 to $87,988.03. Whether or not the Father’s back pay was for years prior to separation (for which he provided no evidence), it is still income that he received in 2021 and on which his child support should be based.

[135] The Father also admits that he received $18,000 in gross rental income in 2021, or $1,500 per month. In his financial statement sworn November 18, 2021, he claims expenses of $100 per month in relation to the rental unit, leaving him with net rental income of $1,400 per month.

[136] Accordingly, for 2021 I find that the Father’s income is $103,856.16, being $16,800 net rental plus his 2021 employment income of $87,988.03, less his union dues of $931.87, as set out on his paystub. Accordingly, as of July 1, 2022, the Father should be paying $1,980 per month in child support.

[137] As for s. 7 expenses, the Mother’s income is straightforward. In 2020, she earned $129,062. In 2021, she expects to earn $138,267.24. Accordingly, for any s. 7 expenses that are to be paid from July 1, 2021, until June 30, 2022, the proportionate share of s. 7 expenses for the Father is 40 percent and for the Mother is 60 percent. For special or extraordinary expenses from July 1, 2022, to the next review, the proportionate share for the Father is 43 percent and for the Mother is 57 percent.

C. Conclusion

[138] Both parties submitted draft orders in advance of trial, setting out the orders they wished the court to make. Where the parties agreed on provisions, I have included those provisions in my final order, where appropriate and in the children’s best interests.

[139] Accordingly, giving primary consideration to the children’s physical, emotional, and psychological safety, security, and well-being, so as to ensure their best interests, I make the following final orders:

Decision Making

a) The Applicant shall have final decision making authority with respect to major decisions pertaining to the children, N.E.B., born May 24, 2014, B.C.B., born March 13, 2016, and B.N.B., born March 13, 2016 (“the children”), including decisions with respect to their education, non-emergency healthcare (including vaccinations), education (including tutoring), and religion;

b) The Applicant shall advise the Respondent of any major decisions made in a timely manner;

c) If the children need emergency medical care while with one party, that party shall promptly notify the other of the emergency and shall be authorized to make emergency medical decisions for the children;

d) The party residing with the children at the relevant time shall make the daily decisions affecting their welfare. Daily decisions include the types of meals provided at each party’s home, the bedtime enforced at each party’s home, and routine, minor educational decisions (such as consenting to attendance at a field trip which falls on that party’s parenting time);

e) Each party may involve the children in a religion they practice during his or her own parenting time. However, this involvement shall not be in a manner that alienates or puts the children in conflict with the other party’s beliefs. In the event that the Applicant believes that any religious practices are putting the children in this position of conflict, she is entitled to exercise her decision making authority with respect to religion;

f) The children shall remain enrolled in Oscar Peterson Public School, unless the Applicant decides to change the children’s school. The Applicant has final decision making with respect to the school the children attend, and whether they attend in person or online;

g) The Applicant shall be permitted to apply for, renew, and hold the government-issued documentation of the children, including their passports, without the consent or signature of the Respondent;

Parenting Time – Regular Schedule

h) The children shall primarily reside with the Applicant, Lisa Petrina McIntosh;

i) The Respondent shall have parenting time with the children in accordance with the following schedule:

1. Week 1: Alternate weekends from after school or summer camp, or if they are not in school or summer camp, from 4:00 p.m. on Friday until Monday morning at the return to school or summer camp, or if no school or summer camp, at 8:30 a.m.;

2. Week 2: Every Tuesday afternoon from after school or summer camp or, if they are not in school or summer camp, from 4:00 p.m., until Wednesday morning at the return to school or summer camp, or if no school or summer camp, at 8:30 a.m.;

3. If the parties do not find the 8:30 a.m. or 4:00 p.m. exchange times convenient, they may agree to alternate times, as long as it is on consent, and in writing; once an appropriate time has been chosen, it should remain consistent;

j) When the children are not in school or summer camp, exchanges shall occur inside the Tim Hortons located at 6075 Creditview Road in Mississauga, Ontario, unless otherwise agreed by the parties in writing. The Respondent shall not speak to the Applicant or any of the Applicant’s family members during exchanges except for providing a brief, polite greeting. The Respondent shall remain at least six feet away from the Applicant and the Applicant’s family members during exchanges, except for the purposes of quickly handing over the children’s jackets or other belongings;

k) The parties shall administer all prescription medication to the children in accordance with the directions provided by medical professionals during his or her own parenting time. Unless otherwise agreed by the parties in writing, directed by the Applicant, or directed by the children’s healthcare professionals, the parties shall not administer supplements or alternative medicinal products to the children;

l) The non-resident party shall not attend the regular extracurricular activities and lessons of the children which are scheduled during the other party’s parenting time;

Parenting Time - Holiday Schedule

m) The parties shall have parenting time with the children in accordance with the following Holiday Schedule, which shall override the regular parenting schedule in the event of conflict:

School Spring Break

1. In even-numbered years, the children shall reside with the Applicant from Monday at 4:00 p.m. until Wednesday at 7:30 p.m. In odd-numbered years, the children shall reside with the Respondent from Monday at 4:00 p.m. until Wednesday at 7:30 p.m. The regular parenting schedule shall apply for the remainder of Spring Break;

Easter

2. In odd-numbered years, the children shall reside with the Applicant from Good Friday at 4:00 p.m. until Easter Sunday at 4:00 p.m. If Easter Weekend does not fall on the Applicant’s regularly scheduled parenting weekend, the Respondent shall have make-up parenting time during the following weekend such that neither party is having more than two consecutive weekends with the children;

3. In even-numbered years, the children shall reside with the Respondent from Good Friday at 4:00 p.m. until Easter Sunday at 4:00 p.m. If Easter Weekend does not fall on the Respondent’s regularly scheduled parenting weekend, the Applicant shall have make-up parenting time during the following weekend such that neither party is having more than two consecutive weekends with the children;

Mother’s Day

4. If the children are not otherwise with the Applicant on Mother’s Day weekend, the children shall reside with the Applicant from leaving school on Friday until the return to school on Monday and the Respondent shall have make-up parenting time during the following weekend such that neither party is having more than two consecutive weekends with the children;

Father’s Day

5. If the children are not otherwise with the Respondent on Father’s Day weekend, the children shall reside with the Respondent from leaving school on Friday until the return to school on Monday and the Applicant shall have make-up parenting time during the following weekend such that neither party is having more than two consecutive weekends with the children;

Summer Vacation

6. Each party shall have one week of uninterrupted parenting time with the children during their summer vacation, which will include their parenting weekend;

7. The Applicant shall have first choice of vacation time in odd-numbered years and the Respondent shall have first choice of vacation time in even-numbered years. The party with first choice will advise the other, in writing, by April 15th of the chosen vacation time, and the party with second choice will advise the other, in writing, by May 1st of the chosen vacation time. If the party with the first choice of vacation time fails to advise the other of their chosen time by the April 15th deadline but later wishes to exercise summer parenting time, then his or her choice of vacation time shall be subject to:

i. the summer parenting time selected by the party with the second choice, and

ii. the summer camp in which the other party enrolled the children pursuant to subparagraph 139(m)(20) below;

8. For the summer of 2022, if the parties have already agreed to a summer vacation, in writing, then that will prevail; if they have not scheduled their vacation time, then within 7 days of this judgment being released, the Respondent will advise the Applicant of which week he wants, and the Applicant will provide her choice within 7 days thereafter;

Children’s Birthdays

9. If either party is not scheduled to have any parenting time with the children on their birthdays, then that party shall have at least two hours of parenting time with the children on the birthday, which shall not be exercised during school hours. The parties shall discuss and agree to the birthday access at least 15 days prior to the birthday;

10. If both parties are scheduled to have parenting time in accordance with the regular parenting schedule on the birthdays of the children, then no special arrangements shall be made unless the parties agree otherwise in writing;

11. In the event that the birthday parenting time conflicts with other holiday parenting time under a different subparagraph, this birthday schedule shall override that other holiday schedule;

Thanksgiving

12. In odd-numbered years, the children shall reside with the Respondent, from leaving school on Friday until Sunday at 4:00 p.m. If the Thanksgiving Weekend does not fall on the Respondent’s regularly scheduled parenting weekend, the Applicant shall have make-up parenting time during the following weekend such that neither party is having more than two consecutive weekends with the children;

13. In even-numbered years, the children shall reside with the Applicant from leaving school on Friday until Sunday at 4:00 p.m. If the Thanksgiving Weekend does not fall on the Applicant’s regularly scheduled parenting weekend, the Respondent shall have make-up parenting time during the following weekend such that neither party is having more than two consecutive weekends with the children;

Christmas Break

14. In even-numbered years, the children shall reside with the Applicant from 1:00 p.m. on December 24 until 1:00 p.m. on December 25 and with the Respondent from 1:00 p.m. on December 25 until 1:00 p.m. on December 26;

15. In odd-numbered years, the children shall reside with the Respondent from 1:00 p.m. on December 24 until 1:00 p.m. on December 25 and with the Applicant from 1:00 p.m. on December 25 until 1:00 p.m. on December 26;

16. In even-numbered years, the children shall reside with the Applicant from 4:00 p.m. on December 31 until 4:00 p.m. on January 1;

17. In odd-numbered years, the children shall reside with the Respondent from 4:00 p.m. on December 31 until 4:00 p.m. on January 1;

One Additional Vacation Week

18. Both parties shall have an additional week of uninterrupted parenting time, which shall include their access weekends, that may be exercised at any time of the year subject to the following:

i. This vacation time shall not be scheduled to immediately precede or follow that party’s Summer Vacation or Spring Break, unless otherwise agreed by the parties in writing;

ii. This vacation time shall not interfere with the other party’s parenting time as set out in the above Holiday Schedule;

iii. This vacation time shall not interfere with a major life event/celebration of the other party, including a family wedding or milestone birthday party for a family member, or a planned trip of which that party has been previously advised;

19. A party shall provide 30 days’ notice of their selected week of parenting time during a given year. The other party shall not be required to consent to the selected vacation time as long as the above restrictions have been complied with;

Summer Camps

20. With respect to the summer camps of the children, the following shall apply:

i. The children may be enrolled in one one-week camp in July and one one-week camp in August;

ii. In odd-numbered years, the Respondent shall have first choice of the camp in July and the Applicant shall have first choice of the camp in August. In even-numbered years, the Applicant shall have first choice of the camp in July and the Respondent shall have first choice of the camp in August. The party entitled to enroll the children in a camp shall not need to obtain the other party’s consent to that enrollment. Starting in 2023, the parties shall advise each other of the selected camps by April 15th. If the party with the first choice of camp does not propose a camp for each child by April 15th, then the other party may enroll each child in camp of his or her own choice, subject to the cost restrictions set out in subparagraph 139(m)(20)(iii) and shall provide notice of the enrollment by May 1st;

iii. The parties shall only be obligated to contribute their proportional shares towards the cost of a camp up to a maximum amount of $250 per camp per child, unless the parties agree to an increased cost in writing in advance. For greater clarity, the annual cap on the cost of summer camps to which the parties shall be obligated to contribute shall be $500 per child. If a party wants to enroll the children in a camp which costs more than $250 per camp per child, then that party shall be responsible for 100 percent of the cost in excess of the maximum amount;

21. The parties shall provide each other with their proportional shares of the summer camp fees in accordance with this paragraph by no later than June 15th each year. The amounts owing to each party as reimbursement for the summer camp fees shall be off-set such that one payment is made from the party owing the higher amount;

22. The party with whom the children are residing shall take the children to the scheduled camp;

Child Support

n) The Father shall pay child support to the Mother for the children in the amount of $1,676 per month, commencing July 1, 2021, and continuing on the 1st day of each month until and including June 1, 2022, based on the Father’s 2020 income of $84,958;

o) The annual income of the Father for 2020 is $84,958. The 2020 annual income of the Mother is $129,062. For July 1, 2021 to and including June 30, 2022, the Mother shall pay 60 percent of special or extraordinary expenses under s. 7 of the Child Support Guidelines per month and the Father shall pay 40 percent;

p) The Father shall pay child support to the Mother for the children in the amount of $1,980 per month, commencing July 1, 2022 and continuing on the 1st day of each month thereafter, based on the Father’s 2021 income of $103,856.16;

q) The annual income of the Father for 2021 is $103,856.16. The 2021 annual income of the Mother is $138,267.24. For July 1, 2022 until the next review, the Mother shall pay 57 percent of special or extraordinary expenses under s. 7 of the Child Support Guidelines per month and the Father shall pay 43 percent;

r) On or before June 1st of each year, commencing June 1, 2023, the parties shall exchange income information, including but not limited to notices of assessment and income tax returns, for the prior calendar year. The parties shall use this information to adjust the child support payable, including both the Table amount and the proportionate sharing of the special and extraordinary expenses. Any change in the Table amount or proportionate sharing of the s. 7 expenses shall commence on July 1st of each year;

s) The Respondent, Bradley Oliver Baker’s underpayment of child support between July 1, 2021, and up to and including June 1, 2022, shall be fixed at $3,564 and shall be collected through the Family Responsibility Office;

t) The following shall be considered special or extraordinary expenses, to be paid in proportion to each party’s income, as set forth herein:

1. Before and after school childcare services;

2. Health-related expenses, including dental expenses, not covered by the parties’ respective extended health policies;

3. Summer camps fees, subject to subparagraph 139(m)(20)(iii);

4. Post-secondary education expenses;

u) All other special or extraordinary expenses must be agreed upon in advance, in writing, consent to not be unreasonably withheld;

v) Neither party may enroll the child in an extracurricular activity during the other’s parenting time, without the other parent’s agreement, in writing;

w) A party shall reimburse the other party for any special and extraordinary expenses within 30 days of being provided with proof of payment for that expense;

Life Insurance

x) For as long as the Respondent is obligated to pay child support to the Applicant, the Respondent shall maintain a life insurance policy in the amount of at least $300,000, and designate the Applicant as the irrevocable beneficiary of the policy as security for his child support obligations;

y) The Respondent shall provide the Applicant with a copy of the life insurance policy and the irrevocable beneficiary designation within 30 days of this Order;

z) The Respondent shall take all actions necessary to keep the policy through which he secures his child support obligations in force. The Respondent shall not borrow against the policy and shall ensure that the policy remains unencumbered;

aa) If the Respondent’s policy cannot be maintained for any reason, the Respondent shall immediately obtain replacement coverage, ensuring no gap in coverage. The Respondent shall provide a copy of the new policy and the irrevocable beneficiary designation to the Respondent within 30 days of the change in policy;

bb) At the Applicant’s request, the Respondent shall annually provide proof that the life insurance policy remains in effect;

cc) If the Respondent’s life insurance policy or the full amount of the policy as required under these terms is not in force on his death and there is an ongoing child support obligation, then the Applicant’s child support entitlements shall be a first charge against the Respondent’s estate for the full amount of the policy proceeds and all of the Applicant’s rights and remedies against the estate shall be preserved;

dd) Upon the termination of the Respondent’s obligation to pay any child support, the Applicant shall execute any documentation necessary to release the irrevocable beneficiary designation within 30 days of receiving same from the Respondent;

ee) The amount of life insurance that must be maintained may be reviewed, at the Respondent’s request, every five (5) years, or at the termination of child support for a child, whichever comes first;

Costs

ff) The parties are encouraged to resolve the issue of costs themselves. If they are unable, both parties are to serve and file their written costs submissions, limited to 5 pages, double spaced and single sided, along with their Costs Outline, and any Offers to Settle that were served, within 30 days of the date of this judgment; the other party must file any responding written submission, with the same size restrictions no later than 30 days thereafter.

Fowler Byrne J.

Released: July 19, 2022