COURT FILE NO.: FC-19-341
DATE: 2022/08/02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Anna Evelyn McNulty, Applicant
AND
Tanner Kevin Graham, Respondent
BEFORE: Justice Engelking
COUNSEL: Jane O’Neill, for the Applicant
Lucienne MacLauchlan, for the Respondent
HEARD: January 19 – 27, 2022
REASONS for DECISION
[1] This is Ms. McNulty’s MTC the Final Order of Justice Swartz dated February 6, 2019, in which she seeks an order for primary residence of and sole decision-making authority over the child of the relationship, R. D. H. G., born March **, 2016, specified parenting time for Mr. Graham, with exchanges of the child to occur in Perth, Ontario, and child support commencing as of January 1, 2020.
[2] In his Response to Motion to Change, Mr. Graham opposes Ms. McNulty’s claims and seeks an order for primary residence of and sole decision-making authority over R. with him and specified parenting time for Ms. McNulty.
[3] Both parties agree, as do I, that a material change has occurred since the time of the original order. That change includes that R. is almost six and will be starting Grade 1 in the fall. Given that the parties live approximately two hours apart, a decision as to where that will happen needs to be made. Additionally, the Final Order of Justice Swartz of February 6, 2019, provided that a review of R.’s residency schedule would be conducted in the spring of 2020.
[4] For the reasons that follow, I find that it would be in R.’s best interests to be in the primary care of his father, Mr. Graham, with specified parenting time with Ms. McNulty as set out below. I find further that the parties shall share decision-making authority over R., but when they are unable to agree, Mr. Graham shall have the final decision-making authority. I find, further, that Mr. Graham is required to pay child support for 2020 to the present as set out below, and that Ms. McNulty is required to pay ongoing child support commencing in September of 2022.
Background Facts
[5] The parties were in a relationship from June of 2014 to July 31, 2018. R. was born in March of 2016.
[6] Ms. McNulty met her now husband, Jeffrey Tobin in or about September of 2018. Mr. Tobin lived in Kingston and worked in the field of maintenance. He was introduced to R. by Ms. McNulty shortly after they started dating. In the fall of 2018, Ms. McNulty and Mr. Tobin started to reside together in an apartment in Kingston.
[7] Mr. Graham also met his now CLP, Tasha Green in the fall of 2018. He introduced Ms. Green to R. on December 31, 2018. Ms. Green lived with her parents in Belleville and spent time with Mr. Graham and R. in the home of Mr. Graham’s mother in Bath, Ontario, where he was then residing, until the pandemic. Commencing in 2019, Ms. Green would spend one overnight of the weekends when R. was in Mr. Graham’s care. By the summer of 2019, she would spend two nights with Mr. Graham on the weekends. In March of 2020, she began to reside with Mr. Graham and his mother in the latter’s home. Mr. Graham’s sister, Kelsey was also living in the home for a period but moved out in June or July of 2020. While Kelsey was in the three-bedroom home, Mr. Graham shared his bedroom with R., who had his own bed in the room, and with Ms. Green when she was present. After Kelsey moved out, Mr. Graham took the bedroom she had been in, and R. had his own room.
[8] In 2018, Ms. McNulty commenced an application in respect of R. On February 6, 2019, Justice Swartz granted a Final Order on consent which provided for custody and residency of R. as follows:
- The Applicant/mother, Anna Evelyn McNulty, and the Respondent/father, Tanner Kevin Graham, shall share joint custody of the child, [R.D. H.G. (d.o.b. [redacted]) with a week on/week off residency with exchanges on Sundays at 6:00 p.m. in Westport, Ontario at the Circle K Gas Station, with leave of the Applicant/mother to relocate forthwith to reside in Renfrew, Ontario.
[9] The Order also provided a holiday residency schedule and with respect to child support provided at paragraph 5: “No child support shall be payable due to current incomes of the parties and the parties shall provide Income Tax Returns and Notices of Assessment each year on June 1st commencing in 2019.”
[10] Very shortly after the Order of Justice Swartz, Ms. McNulty moved to Renfrew, Ontario, as was anticipated by the parties at the time of the Order. In April of 2019, Mr. Tobin purchased a house in Renfrew, and moved there with Ms. McNulty. In November of 2019, Ms. McNulty and Mr. Tobin married and in May of 2020, they had their first child together, E. At the time of trial, Ms. McNulty was expecting her third child.
[11] In May of 2021, Mr. Graham and Ms. Green purchased a home together in Erinsville, Ontario. At the time of the trial, they were engaged and also expecting their first child together, with a due date in July.
[12] The week on/week off schedule has been in place since Justice Swartz made the Order in February of 2019. The drive for Ms. McNulty to the exchange location in Westport is approximately one hour and forty minutes, though she takes a longer route than she might otherwise do, because it affords good highways, consistent cell service and places to pull off the road if necessary. Mr. Graham’s drive to the exchange location from his new home is approximately one hour and fifteen minutes, which is somewhat less than it was from Bath, Ontario. Regardless of the parenting schedule ordered, Ms. McNulty requests a change in the exchange location to Perth, Ontario, or to Griffith, Ontario. Mr. Graham is content for it to stay as is or to change to one which entails less travel time for R, particularly one where they meet halfway between Renfrew and Erinsville on Highway 41. He does not agree with Perth as it is longer for him and does not reduce travel time for R.
[13] Both parents seek orders of sole decision-making authority as they claim that they are unable to communicate in a manner that is conducive to joint decision-making authority. They are also unable to agree on certain decisions for R. The most significant decision on which they have been unable to agree is appropriate counselling for R. Ms. McNulty has been seeking to have R. receive counselling since he was three years old, while Mr. Graham’s position is that it is the parents who require services to better manage R.’s behaviors, and his inability to manage his emotions.
[14] R. was diagnosed by his pediatrician, Dr. Tucker, as having Attention Deficient Hyperactivity Disorder (ADHD), Oppositional Defiant Disorder (ODD) and sexualized behaviors. In a letter dated October 27, 2021, Dr. Tucker confirmed this diagnosis, as she did in her testimony, and indicated: “We have encouraged the parents to d Triple-P-parenting classes and to seek behavioural therapy for Reid for the above”. [^1]
[15] Mr. Graham agrees with R.’s diagnosis of ADHD. He describes R. as having two speeds – 500 miles per hour and asleep. He also agrees that R. exhibits behavior which is oppositional and defiant. Mr. Graham does not accept that the behavior R. has exhibited in the past is “sexualized”. He sees it as normal, exploratory behavior of a little boy, who needs to and can be redirected when it happens. Mr. Graham takes particular offence with Ms. McNulty’s suggestion, indeed, I would characterize it as insistence (to this day), that Mr. Graham and/or his spouse, Ms. Green, are responsible for R.’s behaviors that have been characterized as “sexualized”.
[16] Examples provided during the trial of behavior of R.’s that has been characterized as “sexualized” are as follows:
• At or around the end of February of 2019, right after an exchange and while at a visit at Ms. McNulty’s mother-in-law’s home, R. undressed a doll and attempted to stick two fingers in the vaginal area of the doll;
• On September 18 and 19, 2019, R. was noted to have his pants down and be playing with himself at daycare;
• On November 12, 2020, while at a friend’s home, R. touched and/or kissed the vagina of the friend’s three-year-old daughter (over her clothes) while in a playroom behind a partially closed door; and,
• Sometime during the six weeks that Ms. McNulty’s sister, Mary, lived with her in the spring of 2020, R. tried from time to time to push Mary’s shirt up and her pants down while cuddling with her, and on one occasion while doing so started playing with his penis. On another occasion during the same period, R. walked into the basement bathroom while Mary was using it, stood in front of her and started playing with his penis while looking at her.
[17] R., additionally, often has deregulated emotions and his behaviors can escalate very unpredictably and rapidly. Examples of his other challenging behaviors are hitting/kicking people (peers and staff at daycare, his caregivers), spitting at people or on the ground, throwing objects, swearing, and threatening to kill, cut, and/or hurt people. For example, R. threatened to cut the baby out of Ms. McNulty’s stomach and kill them both. He also stated to her that he hoped she would get hit a car and that he would be the person to push her in front of it.
Positions of the Parties
[18] Ms. McNulty seeks to vary the joint custody provision in the Final Order of Justice Swartz to one in which she would have sole decision-making authority over R. Her main reason for holding this position is that she perceives communication with Mr. Graham to be difficult, and because she has not unable to get his consent at various times for counselling she has wanted to arrange for R. She also seeks to have primary residence of R. and for him to attend school in Renfrew. Ms. McNulty proposes that Mr. Graham have parenting time every second weekend and shared holidays. Ms. McNulty additionally seeks an order for child support on a set-off basis for certain time under the shared parenting regime and for on-going table support in the future.
[19] Mr. Graham also seeks an order for sole decision-making authority over R. as he is of the view that he would be more responsible in executing it than would Ms. McNulty. His position is that even in the face of a joint custody order, Ms. McNulty has taken unilateral decisions for R. without consulting with or sometimes even informing him. For this reason, he proposes that he have final decision-making authority for R., but that he be required to consult Ms. McNulty before making any such decision. Mr. Graham also seeks to have primary residence of R. and for him to attend school in Erinsville. Mr. Graham proposes that Ms. McNulty have parenting time with R. every second weekend during the school year, but that primary residence of him be with Ms. McNulty in the summer with him having every second weekend. He also proposes that other holidays be shared, but that Ms. McNutly have R. for every March break.
Report of the OCL
[20] Pursuant to an Order of Justice James dated May 21, 2020, Ms. Jennifer Williams conducted a clinical investigation, the report of which was released on August 5, 2021. There were several delays in completing the report relating to intervening CAS investigation, obtaining disclosure from the CAS and a medical leave for the investigator. Ms. Williams held a disclosure meeting with the parties on November 6, 2020, but then did not release her report until several months later.
[21] Ms. Williams ultimately recommended that Ms. McNulty have sole decision-making authority over R., as well as primary residence with Mr. Graham having every second weekend and holiday parenting time. Ms. Williams also made the following recommendation:
- It is recommended that the [R.] continue with the involvement of the Phoenix Centre (or other similar services) and to involve Mr. Graham as much as possible by providing him with appointment times as soon as possible and to share their recommendations so that he may ensure similar practices at his home. Therapeutic support is recommended regarding the concerning behaviours [R.] is exhibiting as well as assistance with emotional regulation.[^2]
[22] It was Ms. William’s impression in her observation visits, which were virtual, that Mr. Graham took a “secondary” role to Ms. Green and/or Ms. Young[^3], and she believed that Mr. Graham seemed to minimize or not recognize the severity of R.’s reported behaviours. Ms. Williams was very much of the view that Mr. Graham was acting obstructively regarding obtaining services for R. At page 16 of her report, Ms. Williams indicated:
However, this behaviour cannot be minimized or normalized. Even though it can be common for a child to struggle emotionally and behaviourally considering the conflict and difficult changes, [R.’s] behaviour has been noted by professionals to be out of the norm and very concerning and must therefore be addressed therapeutically.
[23] Having said that, Ms. Williams noted that Mr. Graham was able to respond to R. “calmly and quietly” and to appropriately redirect him.[^4] In her discussion with collaterals, Ms. Hamilton also noted that staff from R.’s original daycare, Bay Park Children’s Centre, reported that Mr. Graham had more follow through and “seemed to have more strategies” than Ms. McNulty did.
[24] In her evidence, Ms. Hamilton identified Ms. McNulty’s main parenting strength as advocating and obtaining services for R. She identified Mr. Graham’s main strength as “being child-centered”. His weaknesses from her perspective were not communicating with Ms. McNulty and not seeking out supports for R.
Analysis
[25] Section 24 (1) of the Children’s Law Reform Act provides that the court shall only take into consideration the best interest of the child in making a parenting order.
[26] Section 24 (2) provides that the court is to take into consideration all factors related to the circumstances of the child, and that, “in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.”
[27] Section 24 (3) then sets out those factors in subparagraphs (a) through (k). Those which I consider of relevance to this hearing are (a), (b) (c), (d), (g), (h) and (i).
[28] Ms. McNulty has encouraged me to also consider (j), however, I did not hear any evidence of any family violence directed at Ms. McNulty or R. post the February 2019 Final Consent Order. Indeed, it seems that Ms. McNulty was the one more inclined to make verbal attacks against Mr. Graham or Ms. Green in 2019. What references there were to family violence prior to the consent order being made, moreover, were minimal, were related to the parties’ separation and were far from proven. Mr. Graham, in fact, admitted that there was an altercation in which there was some mutual “shoving” on the night the parties separated, and that police were called. Nothing, however, came of it; no charges were laid, and the parties have remained apart ever since. Given that an order was made in 2019, and that it is deemed to have been a correct one, I do not find that family violence is a factor to be considered at this point in this case.
(a) The child’s needs, given the child’s age and stage of development, such as the child’s need for stability
[29] This is a very significant factor related to the circumstances of R., particularly in relation to his ADHD/ODD diagnosis and behavioural difficulties.
[30] Both of these parents are loving and devoted to R.’s well-being. However, the evidence revealed that Mr. Graham, along with the support and assistance of Ms. Green, is better equipped to attend to R.’s behaviours than is Ms. McNulty.
[31] Ms. McNulty has described very significant issues with R., some of which I have outlined above. Some of R.’s more extreme behaviours have also been exhibited at daycare when he is in the care of Ms. McNulty. In Kingston, R. attended Day Park Daycare from March 20, 2017, to January 21, 2019. When Ms. McNulty quit her job in Kingston, she was no longer eligible for a subsidy and could not, therefore, keep R.’s spot at Day Park. Ms. McNulty then moved to Renfrew and secured at spot for R. at Leaps and Bounds Daycare in Renfrew. R. was with Leaps and Bounds from early 2019 until mid-March of 2020. According to Ms. McNulty, R.’s initial behaviours at daycare were around not wanting to stay, such as crying at the window, or being aggressive with other children, but they escalated over time. R. began to hit, spit, throw toys and/or furniture at both other children and staff. The daycare staff reported to Ms. McNulty that R. also verbalized very violent and threatening statements, such as “I’m going to cut your head off”, “I’m going to cut your arms [or legs] off”, “I’m going to wake up my friends and kill them” or that he was going “to shoot everyone at daycare”. Ms. McNulty was often required to come and remove R. from the daycare at their request. In addition to his physical and verbal behaviour, R. also displayed what Ms. McNulty described as “sexualized behaviour” at daycare, which consisted of putting his hands in his pants and playing with himself. R.’s behaviours became so problematic at Leaps and Bounds that Ms. McNulty indicated that had the pandemic not occurred, she likely would have pulled him from daycare in any event, as he was too disruptive for the other children. Ms. McNulty also described R. being violent towards her, screaming and yelling, making threats, hitting, spitting and kicking, especially when he was told “no” to something he wanted. Ms. McNulty’s sister, Mary, described R. punching her in face on one occasion, and on others being entirely unable to regulate. Ms. McNulty sees R. as requiring help with behavioural therapy and has been consistently seeking to have him attend counselling for same.
[32] By contract, neither Mr. Graham nor anyone in his circle who assists him in providing care to R., that being Ms. Green or his mother, Aileen Young (with whom he, and therefore R., lived post-separation to May of 2021), described witnessing the same degree of dysfunctional behaviour by R. or reported any difficulty in redirecting him from misbehaviour when it does occur. Additionally, the last two people providing daycare for R. while under Mr. Graham’s parenting time have not reported these types of issues to him. R. attended three or four daycares since separation during his time with Mr. Graham. The first was with a family friend, Melanie Clifford; however, this lasted less than a week because Ms. McNulty called Ms. Clifford’s landlord to complain about her and she did not continue. Mr. Graham did not initially provide the name of the second, Circle of Tots, to Ms. McNulty because of what she did to Ms. Clifford. R. was sent home from this daycare on at least one occasion in 2019, but his behaviour does not otherwise appear to have been extraordinary. Another, to whom Ms. Hamilton spoke, neglected to have R. in her care out of concern he would not “integrate well into the environment.” The third was the home daycare of Ms. Amanda Vermerin in Napanee from January to September of 2021 and the most recent has been with Ms. Lisa Glover since September of 2021. Ms. Vermerin ceased providing care to R. because she thought he would be going to school in September of 2021, and he was taking up a fulltime spot. She did not, according to Mr. Graham, terminate due to any issues with R.’s behaviour. Similarly, Ms. Glover continues to provide care and appears to manage R. appropriately.
[33] Mr. Graham recognizes that R.’s behaviours can be challenging, but he has learned and applies skills to manage them. He testified that, although R. can have bad days, or bad periods in a day, he has never seen the kinds of behaviours being described by Ms. McNulty. Indeed, he was unaware until trial of the information provided by the staff at Leaps and Bounds and believed that Ms. McNulty might have been exaggerating at times, as in his mind she is prone to do. Mr. Graham’s view, however, is that R., who was just three at the time, was being left at daycare for very long periods while in Ms. McNulty’s care (6:30 a.m. to 5:30 p.m.) and that he learned that he could be sent home if he behaved badly enough.
[34] With respect to R.’s behaviours overall, Mr. Graham describes him as a confused little boy who does not know how to express his emotions, in particular his displeasure. He agrees that R.’s behavior can be negative and inappropriate at times, but the severity of it in his home is not anywhere near as described by Ms. McNulty, her sister or Leaps and Bounds. Mishaps are infrequent in his home, perhaps a moment within a period of three days, and once the moment is passed, it’s over. Mr. Graham testified that it is not atypical for days right after or right before the exchange to contain more such moments, but that they can be readily managed by redirection and consistency. The key, he indicates is: “sticking to a decision and following through; standing by your decision and being steadfast”. Mr. Graham has noted of late that R. swears a lot, but he and Ms. Green have developed strategies, being the use of a “swearing chart” and a discipline/reward system, to curb that behaviour as well.
[35] Contrary to Ms. Williams, Ms. Courtney Farrar from the Family and Children’s Services of Frontenac, Lennox and Addington, confirmed in her testimony that having spent time with Mr. Graham in more than one investigation, she did not consider him to be a “backseat” parent, but rather that he consistently “provides appropriate guidance and expectations” to R. In a January 27, 2021, telephone call, Ms. Farrar also queried, moreover, with her Renfrew counterpart, Nicole Dennison, whether “Anna could potentially further traumatize [R.] by creating conflict and the courses she’s enrolled him in regarding sexual abuse.”[^5] Ms. Farrar also indicated in her testimony that given R.’s age, a lot of the required counselling for his needs has to do with the parents.
[36] Mr. Graham testified that right after Dr. Tucker recommended the Triple P parenting program, he made inquiries and started the program. At the time of the trial, he had completed the first four-week introductory course, which entailed weekly one on one sessions with a counsellor, Lisa Clark.[^6] This was to be followed by a more in depth seven-week program which Mr. Graham intended to complete as well. Mr. Graham indicated that he learned a lot of useful strategies for managing R. through the program.
[37] Additionally, Mr. Graham is assisted by Ms. Green, who is a daycare teacher and who was previously an enhanced worker for children with behavioural or emotional difficulties. Ms. Green has a BA in child and youth care and has taken courses in cognitive behaviour therapy. with special needs kids. Mr. Graham feels that he benefits from Ms. Green’s perspective due to her professional background and her experience with behaviours that R. sometimes exhibits. He indicates that they work as a team and try to come up with strategies together on how best to manage R.
[38] While Ms. McNulty has also taken some steps to learn strategies to manage R., including participating in Triple P parenting programs herself and engaging in psychotherapy, she has clearly not met with the same level of success that Mr. Graham has. My impression is that Ms. McNulty struggles with providing the consistency and “steadfastness” that R. needs. R., in turn, uses outbursts and violence to manipulate her into getting his needs and wants met.
[39] All children require consistency and stability. Given his diagnosis, R. requires it even more. Indeed, in her testimony, Dr. Tucker indicated that while behavioural therapy may be important for R., the key to managing his issues is parental training and education. Mr. Graham agrees with this conclusion of Dr. Tucker’s and perceives that it is up to the parents to learn how to help R. manage. On the evidence before me, while Ms. McNulty has clearly made improvements since 2019, Mr. Graham appears to be doing a better job, or at least a more consistent one, in this regard.
(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
[40] On his mother’s side, R. is close to Mr. Tobin, his brother E., his aunt Mary and his great aunt Donna, who acts more as grandmother to him. He also sees his grandparents and enjoys visiting his great grandfather’s farm. Donna acts as a support to Ms. McNulty and will assist her in caring for R. from time to time. Mr. Tobin plays a role with R. but admits that Ms. McNulty is primarily responsible for him. R. is very close to E. and very proud to show him off and to show him how to do things. Mary lives in the NWT, and only visits the family a few times per year, though she did live with them for several months during the pandemic in 2020 and does very frequently have video contact with them.
[41] On his father’s side, R. is very close to Ms. Green, who plays a significant role in assisting Mr. Graham in managing his behaviour. He is also close to his paternal grandmother, Ms. Young, and his paternal aunt, Kelsey. R., of course, resided with Ms. Young while in Mr. Graham’s care since separation to May 2021, and with Kelsey as well until June or July of 2020. Ms. Young continues to frequently see R. and he has sleepovers with her from time to time when he is in Mr. Graham’s care.
[42] R. will also have a new sibling with each of his parents by this time.
[43] R. is accustomed to spending time in the home of each parent and in visiting with his significant family members while in their respective care. He is also accustomed to living apart from E. half of the time. While I consider that relationship to be most important to R., it does not outweigh the importance of ensuring stability for him, especially as he moves into attending school fulltime, more about which I will speak later. So long as R. consistently sees and is with E. (and his new sibling) during Ms. McNulty’s parenting time, those relationships can be maintained. It will be up to Ms. McNulty to ensure that R. maintains the other relationships that are important to him during her parenting time with him.
(c) Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent
[44] This also a significant factor in this case. Ms. McNulty appears to have struggled at times with promoting, developing, and maintaining R.’s relationship with Mr. Graham.
[45] Firstly, her communication with Mr. Graham, and with Ms. Green as well, was extremely inappropriate throughout 2019. In his affidavit sworn on January 10, 2020, which was done in response to Ms. McNulty’s December 2019 MTC, Mr. Graham included many examples of same.[^7] After the Final Order was made, contrary to Mr. Graham’s wishes and their agreement while together, Ms. McNulty contacted Mr. Graham’s biological father, with whom neither he nor R. had any relationship. Her self-admitted justification for doing so was “to get under his skin”. After searching Mr. Graham’s father out and contacting him, Ms. McNulty sent Mr. Graham messages stating: “Your dad’s actually pretty cool. Learning lots of shit on your mom and you. He’s really excited to meet [R.]” and “Your dad asks more about [R.] and checks in more then [sic] you do… I think your mother is the fucked up one. Apparently she’s a big whore and couldn’t keep legs shut either…She probably has the next guy all lined up for when something happens to mike [Mr. Graham’s step-father]. Your dad’s awesome. Both think your mother’s a cunt and crazy.”[^8] Ms. McNulty also sent a text to Mr. Graham referring to Ms. Green as a “beastly whore” and stating: “And Tasha stay the fuck away from my son. You work with kids think it’s really a good idea to be sexually assaulting one can’t value your job that much.”[^9] She sent another message stating: “Also tell that bitch of yours to remove pictures of my son from her Instagram. She does not have permission to have him on there. She already sexually assaulted him…”[^10] In reference to Mr. Tobin, Ms. McNulty sent Mr. Graham a text indicating: “As far as I am concerned Jeff is his dad. You’re nothing but a sperm donor”.[^11]
[46] Ms. McNulty would also bombard Mr. Graham with messages, particularly if he did not immediately respond to her, sending many, many messages in a row. Additionally, for a significant period, Ms. McNulty had Mr. Graham programmed in her phone as “Idiot”, something she only changed after she commenced her litigation. As indicated above, Ms. McNulty additionally interfered in Mr. Graham’s initial daycare arrangements for R., and she also contacted Ms. Green to “warn her off” Mr. Graham.
[47] Second, Ms. McNulty has also made statements at exchanges, which include referring to Mr. Graham as “Tanner” to R. rather than “dad” or “daddy”, once referring to Ms. Green as “the child molester” in R.’s presence, asking Mr. Graham in R.’s presence if he had “a quickie” with Ms. Green in the car, and sometimes “flipping the bird” to Mr. Graham within R.’s view.
[48] Third, Ms. McNulty has also accused Mr. Graham of not caring about R. if he does not agree with what she is proposing. This is particularly so as it relates to her objective of having R. participate in behavioural therapy. Ms. McNulty presented Mr. Graham as acting contrary to the recommendations of several professionals with whom she had consulted, including the CAS, Dr. Beimer (R.’s paediatrician prior to Dr. Tucker) and Dr. Ward from CHEO. Mr. Graham is not opposed to R. receiving counselling, but he does not see the same need as does Ms. McNulty. He believes the focus should be on the parents obtaining assistance in learning strategies on how to manage R. and in applying them consistently. As I have indicated, Mr. Graham seems to be meeting with some success in doing so.
[49] Additionally, Mr. Graham has disagreed with the specific service providers Ms. McNulty has proposed for R., those being the Phoenix Centre and Amanda Telford, whom she found through the Centre for Childhood Abuse and Sexual Assault after a consultation with CHEO in January of 2021. Mr. Graham objects profoundly to R. being labelled as having “sexualized behaviours”, at least to the degree that they are noted to be out of the ordinary. He sees R. as being involved in normal childhood exploratory behaviours, which, again, can be managed through calm redirection. Though he ultimately signed a consent for the Phoenix Centre, which would not continue with R. due to the litigation, Mr. Graham did not think it was the right choice for R. Similarly, he does not believe that Ms. Telford is appropriate for R, given that he has not experienced childhood trauma nor been exposed to or the subject of sexual abuse. Additionally, he objects to Ms. Telford’s rate of $150 per hour when there are likely more appropriate services that may be found for free. Because he does not share Ms. McNulty’s view, however, Mr. Graham has been characterized by her, including during this trial, as not caring about R. This is notwithstanding that Mr. Graham, in fact, sought out services for the family, particularly the parents, through the Maltby Centre, with which Ms. McNulty was not interested in continuing after two sessions for a lack of direct work with R.
[50] While Ms. McNulty has acknowledged that her communications with Mr. Graham (and regarding Ms. Green and Ms. Young) in 2019 were frequently negative and inappropriate, she does not appear to understand the consequences of having behaved in that manner. Nor does Ms. Williams, who nevertheless noted that Ms. McNulty was cautioned by the CAS in 2019 “around the impact of her derogatory comments about Mr. Graham and Ms. Green on [R.]”.[^12] Ms. McNulty sees herself as having made a “complete 180 degree turn” in 2020 (which Mr. Graham states is a result of him having raised the issue of her communication in his January 2020 affidavit). She is now of the view that she and Mr. Graham should be able to openly communicate and speak freely about R. for his sake. Mr. Graham is, however, understandably reticent to engage with Ms. McNulty, partly because of this messaging, but also due to her insistence that he has caused sexual harm to R., something which he found particularly hurtful to him and potentially professionally harmful to Ms. Green. Consequently, Mr. Graham tries to share only what is necessary and seeks neither to micromanage what is going on in Ms. McNulty’s house, nor to permit her to micromanage what is going on in his house. Ms. McNulty resents Mr. Graham for his non-responsiveness to her, without accepting that it is a natural consequence to what he endured for many months, indeed almost a year, after the Final Order was made.
[51] It would, of course, be optimal, if these parties could openly communicate and share information about R. For that to happen, however, Ms. McNulty would have to change her attitude and accept that Mr. Graham also wants what is best for R. and would never do anything to intentionally harm him. Unfortunately, Ms. McNulty seems to be incapable of that. The most glaring example of this is that she has, from the outset, blamed Mr. Graham for the sexualized behaviour displayed by R., alleging that he was exposed to sexual activity between Mr. Graham and Ms. Green, (without discussing it with Mr. Graham) and she continues to hold that view today, notwithstanding that it is vehemently denied by both and has been investigated by the relevant Children’s Aid Society at least three times and never verified.
[52] But for one occasion in response to a text from Ms. McNulty, which Mr. Graham acknowledged was not appropriate, Mr. Graham has communicated with Ms. McNulty in a respectful, albeit minimalist manner. He shares information he believes relevant, and he responds to Ms. McNulty when necessary. He can communicate with her when a decision about R. needs to be made, and, in my view, would be capable of doing so in the future.
(d) History of care of the child
[53] Ms. McNulty testified that prior to separation, she was the person most responsible for meeting the needs of R. This included making and attending medical appointments for him. Mr. Graham did not dispute that Ms. McNulty was more likely to attend appointments because he was working at the time but indicated that as parents they discussed and agreed upon what was needed in advance. Otherwise, they parented R. together.
[54] Post-separation, Mr. Graham’s evidence was that despite the joint custody order made by Justice Swartz, to which Ms. McNulty consented, she has since acted like a sole custodian of R. and made unilateral decisions about him without consulting Mr. Graham in advance. This is certainly true of R.’s change of doctor after Ms. McNulty moved to Renfrew, her overholding of R. in March of 2020 and R.’s enrollment in school in Renfrew for September of 2021. Ms. McNulty also kept R.’s birth certificate and health card at separation and would not provide a copy of the former or a picture of the back of the latter to Mr. Graham. Mr. Graham is unaware of whether R. has a S.I.N. card as he has never been informed.
[55] From the time of his birth, R. received primary medical care from the Queen’s Family Health Team in Kingston. After Ms. McNulty moved to Renfrew, however, she changed this to her former family doctor in Calabogie, Dr. Buxton, becoming R.’s family doctor. This was without consulting, or indeed informing, Mr. Graham. He indicated that on one occasion when R. came back into his care with significant bug bites, he contacted the Queen’s Family Health Team, only to be informed that R. was no longer a patient there. Ms. McNulty’s testimony essentially confirmed this, with her stating simply that Dr. Buxton had been her family physician from birth and so she “took the opportunity to transfer [R.’s] care to Dr. Buxton”.
[56] In March of 2020, Ms. McNulty made the unilateral decision to suspend Mr. Graham’s parenting time due to the pandemic. Ms. McNulty accused Mr. Graham of not properly following COVID-19 protocols based on the number of people living in Ms. Young’s home, despite that her own sister, Mary, had come from Nova Scotia to live in her home. An urgent motion was held on April 9, 2020, and on April 14, 2020, Justice Fraser reinstated Mr. Graham’s parenting time with R.
[57] In or about January of 2021, Ms. McNulty registered R. for school in Renfrew for the following fall. She acknowledged doing this, however, indicated that it was simply to “hold a place” while the decision about R.’s primary residence was being made. Whether or not this was her intention, Ms. McNulty neither consulted with nor informed Mr. Graham that she had taken this step. Rather, Mr. Graham received a “Welcome Back to School” email on September 2, 2021, from Queen Elizabeth Public School in Renfrew. Because of his age, and the COVID-19 situation in 2021, R. has not yet commenced school.
[58] There is no question on the evidence before me that Ms. McNulty has acted in a manner that is not consistent with a joint custody order. The only time she has even attempted to consult with Mr. Graham is when his consent for the contemplated service, for example, counselling for R., was required. She has otherwise simply made decisions for R., sometimes informing Mr. Graham after the fact, and sometimes not. This does not bode well for placing sole decision-making authority in her hands. In such a case, it is likely that Mr. Graham’s role would be further restricted or diminished than it already is due to her unilateral decisions.
[59] Mr. Graham has, on the other hand, testified that he would meaningfully consult with Ms. McNulty prior to making any decision for R., as he demonstrably did in relation to having R. receive the COVID-19 vaccination. Mr. Graham submits, and I agree, that he is more suited to have the final decision-making authority.
(g) Any plans for the child’s care
[60] Ms. McNulty’s plan is for R. to be in her primary care and to attend school at the Queen Elizabeth Public School in Renfrew. She intends to remain as a stay-at-home mom to R. and his siblings, as she has been since E.’s birth, and for Mr. Tobin to financially support the family. She proposes that Mr. Graham have parenting time every second weekend and shared holidays.
[61] Mr. Graham’s plan is for R. to be in his primary care and to attend school at Tamsworth Public School. Mr. Graham intends to apply for an Educational Assistant for R.; he anticipates that school will be a challenge for R. given his ADHD and ODD and believes he would benefit from one-on-one support. Mr. Graham would continue to look for services for R. and would invite Ms. McNulty to be as involved as he in any that are selected/agreed upon. Mr. Graham works seven 12-hour shifts every two weeks. His plan for day shifts would be for R. to attend after school care or daycare, and for night shifts to have Ms. Green care for R. He proposes that Ms. McNulty have parenting time every second weekend during the school year, and primary parenting of R. during the summer. He is required to work two weekend shifts per month and would like Ms. McNulty’s parenting time to occur on those weekends and be extended if there is a PD Day or holiday on the Monday or Friday of her weekends.
[62] I agree with Mr. Graham that R. is likely to struggle in a school environment, and it is necessary to give him the best possible chance to succeed. In my view, that best possible chance is in the care of Mr. Graham.
(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
[63] As I have indicated, both parents are dedicated and capable of meeting the physical needs of R. Mr. Graham, however, appears to be better able to meet R.’s psychological needs, in that his consistency and stability help R. to regulate himself more successfully than he seems to be able to do in the care of Ms. McNulty.
(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
[64] This factor has been covered under the heading (c) above.
[65] For all of these reasons, I find that it is in R.’s best interests to be in the primary care of Mr. Graham during the school year with every second weekend and other holiday parenting time for Ms. McNulty. I do not agree with Mr. Graham that this situation can be reversed in the summer months, such that R. can be in the primary care of Ms. McNulty with Mr. Graham having parenting time every second weekend. I am of the view that this proposed reversal has the potential to be confusing to R. and disruptive of what will have become his routine. Rather, I find that it would be in R.’s best interest for the schedule to revert back to week on/week off during the summer months. He is accustomed to such a schedule, and it will provide him with predictable stability and consistency. The parties, however, are free to agree to vary it for longer or different periods should they have a need, and it be workable for R.
[66] With respect to decision making authority, Mr. Graham has demonstrated, both through his consultation with Ms. McNulty over having R. vaccinated against COVID-19, as well as through his effort to have R. seen by an optometrist, which was disrupted by Ms. McNulty making her own appointment for R., that he is willing and capable of consulting with and taking Ms. McNulty’s input into consideration. In the case of the eye appointment, Mr. Graham withdrew knowing that Ms. McNulty had booked her own appointment for R. He has stated forthrightly but respectfully what his position is when he disagrees with Ms. McNulty, as he did in the trial. Ms. McNulty’s response to him when he does so is that he is disruptive of her efforts to get necessary help for R. and that he does not care about R. I saw no evidence that Mr. Graham does not care about R. On the contrary, the evidence from Ms. Green, Ms. Young, Ms. Farrar, and even Ms. Hamilton, is that he relates very well with R., manages him very well and cares deeply about him. He is measured, rather than reactive, in how he assesses R.’s needs, and he is willing to get whatever help is genuinely necessary for him.
[67] Ms. McNulty, on the other, seems in my view to depend very much on what others may think is necessary for R. rather than focusing on applying strategies such as setting boundaries and consistency to manage R. Indeed, while Ms. Hamilton saw Mr. Graham’s main parenting strength as being child-centered, she saw Ms. McNulty’s as advocating and obtaining services for R. Ms. McNulty’s decision-making is reactive, and consequently often unilateral. I find, therefore, that while the parents should retain joint decision-making authority over R. and be required to consult and consider each other’s input for any major decision, Mr. Graham should have final decision-making authority for any major decision upon which they cannot agree.
[68] I know that my decision will be very difficult for Ms. McNulty to accept and that she genuinely desires for R. to be in her primary care. I know that she loves R. as much as Mr. Graham does. However, I am directed to apply only the best interests of R. Rather than dismiss Mr. Graham as minimizing R.’s behaviours, and consequently his needs, I would implore Ms. McNulty to consider that R. may, in fact, behave differently in the care of Mr. Graham, and to consider that because of that, placing him in Mr. Graham’s primary care during the school year may assist and benefit R. I would implore her further to message to R. that she supports this decision as being what is best for him, and that she will see him frequently and for extended periods whenever possible. To do otherwise, will only damage and confuse R. and this is not what he needs. What this little boy needs is all the support possible to start him off on a good footing as he embarks on his school life; Ms. McNulty’s support, in particular, is crucial for R. to succeed in this regard, and it is my sincere hope that she put his needs ahead of her own to help him with this transition.
[69] With respect to the exchange location for their parenting time, I take the view that whatever is least onerous for R., the parents must do. The most direct route which results in the least amount of time in the car for R. is via Highway 41. However, Ms. McNulty has indicated that this is not her preferred route because there are portions with no cell service and few places to pull over. As in other situations, she appears to experience more difficulty with R. behaviours during transport than does Mr. Graham. These are, thus, important considerations for her. Ms. McNulty has, nevertheless indicated that she is prepared to traverse this route so long as the exchange location is in Cloyne, Ontario, which results in the trip being longer for Mr. Graham than it is for her. Mr. Graham does not appear to have the same difficulties with R. in the car and stated his preference to shorten the drive for R. if possible. I, therefore, find that it would be best for R. to have the exchange take place at a location agreed upon by the parties in Cloyne, Ontario, notwithstanding that this will mean that Mr. Graham does more of the driving.
Child Support
[70] Although she has referred to a claim to “retroactive” child support, Ms. McNulty is seeking a change in the support order as of the date of her application, which was filed in December of 2019. In her MTC, Ms. McNulty made a claim for set-off child support from January 1, 2020, and for on-going table support with R. in her primary care.
[71] Ms. McNulty, therefore, seeks an order that Mr. Graham owes her $2,490 from January 1 to December 31, 2020, based on Mr. Graham having an income of $63,196 and her having an income of $38,159, resulting in him paying to her a set-off amount of $249 per month.
[72] For 2021, Ms. McNulty concedes that an income of $30,000 should be imputed to her and seeks an order that Mr. Graham owes her $6,331 based on her having that income and him having an income of $79,820, resulting in him paying to her a set-off amount of $487 per month.
[73] Presumably, this would continue to be the case (and her claim) for those portions of 2022 during which R. has remained in shared care. This would result in Mr. Graham owing her $3,896 for January 1 to August 31, 2022, based on an imputed income to her of $30,000 and an annual income to him of $79,820, and a set-off amount of $487 per month.
[74] Mr. Graham disputes that any adjustment be made for the periods in which R. has remained in a shared parenting regime. He submits that the proper application for s.9 of the Federal Child Support Guidelines requires more than a straight, or automatic, set-off. S. 9 provides that where there is a shared parenting regime (or parenting time of 40% or more by each spouse), the amount of child support is to be determined by considering the applicable table amount, the increased costs of shared parenting arrangements and “the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.”
[75] Mr. Graham submits both that the distance between the parents’ homes has meant increased costs to the arrangements and that Ms. McNulty has not provided sufficient evidence of either her or R.’s “conditions, means, needs and circumstances” to permit an appropriate determination of support. Mr. Graham also submits that if Ms. McNulty seeks to adjust support, she cannot simply ignore 2019, when she was earning more than he was, and set-off support would have been payable to him, although he made no such claim for retroactive support in his Response to Motion to Change. Mr. Graham’s position at trial was that there should be no child support payable by either party for 2019, 2020 and 2021 (and, also presumably, up to this point in 2022) and that child support should commence based on the required appointment of primary residence. It was his further position that if R. is to be placed in his primary care, $30,000 is reasonable annual income to impute to Ms. McNulty for support purposes.
[76] The Final Order of Justice Swartz dated February 6, 2019, indicated at paragraph 5: “No child support shall be payable due to current incomes of the parties and the parties shall provide Income Tax Returns and Notices of Assessment each year on June 1st commencing in 2019.” (Emphasis added). The parties’ incomes were only $6000 apart at the time the Order was made. It was reasonable for them to forego child support under the shared parenting regime at that time. However, in 2020 Mr. Graham’s income was almost double that of Ms. McNulty, and it has remained significantly higher, though she chose to stop working after E. was born, and to rely on Mr. Tobin’s income to support the family.
[77] It seems logical that Mr. Graham would be required to pay child support to Ms. McNulty once their incomes so drastically diverged. However, while table support is certainly the starting point in a s. 9 analysis[^13], it is not the end point. Some discretion remains.
[78] The Supreme Court of Canada has held in Contino v. Leonelli-Contino at paragraph 27:
- The three factors structure the exercise of the discretion. These criteria are conjunctive: none of them should prevail…Consideration should be given to the overall situation of shared custody and the costs related to the arrangement while paying attention to the needs, resources and situation of parents and any child. This will allow sufficient flexibility to ensure that the economic reality and particular circumstances of each family are properly accounted for. It is meant to ensure a fair level of child support.
[79] Certainly R.’s standard of living seems comparable in both homes. He has his own bedroom, ample outdoor space, and a comfortable environment with each parent. I heard no evidence of R. having “gone without” due to there being no child support payable. Indeed, Ms. McNulty indicated to Mr. Graham that she would pay for therapy for R. with Ms. Telford, if that was keeping him from consenting (it was not). Ms. McNulty and Mr. Tobin own their own home (though it is in Mr. Tobin’s name alone), as do Mr. Graham and Ms. Green. R’s. needs appear to be being met in both homes. Mr. Graham has had the extra expense of daycare on the days that he works when R. is in his care, but this will change once R. starts school to possibly some occasional after school care. Both parents have the extra costs associated with travel for the parenting time exchanges.
[80] Nevertheless, Mr. Graham’s income is the higher of the two, and would be so even if Ms. McNulty continued to be employed in her former employment. Under the circumstances, I would make child support payable by him for the periods in question but, taking all the above factors into consideration, at an amount lower than a straight set-off. Mr. Graham shall, therefore pay to Ms. McNulty $200 per month in support of R. for the period of January to December of 2020 and $300 per month for the period of January of 2021 to August of 2022. The total amount owed to Ms. McNulty by Mr. Graham for the period January 1, 2020, to August 31, 2022, is $8,400.
[81] Commencing September 1, 2022, Ms. McNulty shall pay to Mr. Graham $256 per month, that being the FCSG table amount for the support of one child on an imputed annual income of $30,000.
Order
[82] For the reasons given above, there shall be a final order as follows:
Parenting
Pursuant to the Children’s Law Reform Act:
The Final Order of the Honorable Madam Justice D. Swartz dated February 6, 2019, is terminated effective August 29, 2022.
The parties shall continue to have shared decision-making authority. They shall consult on all medical, dental, and educational decisions for the child, R.D.H.G., born March **, 2016. If they are unable to agree on any particular decision after fulsome consultation, the Respondent Father shall have the final decision-making authority.
The child, R.D.H.G. shall be in the primary care of the Respondent Father during the academic year of September though June.
During the academic year, the Applicant Mother shall have parenting time every second weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m., to be extended to include any PD Day and/or statutory holiday that immediately precedes or immediately follows her regular parenting time, and any other time the parties agree in advance and in writing. The Applicant Mother’s weekends shall coincide with the weekends the Respondent Father works.
During the months of July and August each year, the Applicant Mother shall have parenting time alternating weeks from Friday at 6:00 p.m. to Friday at 6:00 p.m.
In addition to the parenting time above, the Applicant Mother may videoconference with R. twice per week, as may the Respondent Father when R. is on alternating week parenting time in the summer.
During holidays, the parenting time set out in paragraphs 4 and 5 above shall be suspended and replaced with the following:
a. R. shall be in the care of the Applicant Mother during the Spring Break from school each year (for clarity 5 weekdays shall be added to the Applicant Mother’s regular weekend).
b. The parties shall equally share the two-week Christmas break each year, alternating annually Christmas Eve Day at noon to Christmas Day at 2:00 p.m. and Christmas Day at 2:00 p.m. to Boxing Day at 6:00 p.m.
c. The parties shall equally share Easter weekend each year, alternating annually Thursday at 6:00 p.m. to Saturday at 6 p.m. and Saturday at 6:00 p.m. to Monday at 6 p.m.
d. The parties shall share equally Thanksgiving weekend each year, alternating annually Friday at 6:00 p.m. to Sunday at 10:00 a.m. and Sunday at 10:00 a.m. to Monday at 6:00 p.m.
e. R. shall be in the Applicant Mother’s care on Mother’s Day for a minimum of 8 hours each year, and,
f. R. shall be in the Respondent Father’s care on Father’s Day for a minimum of 8 hours each year.
The exchange of the child shall occur in Cloyne, Ontario at a location to be mutually agreed upon by the parties.
Neither party shall speak negatively to the other during the exchanges and the parties shall ensure that exchanges are conducted in a conflict-free manner.
The child shall be permitted to carry his personal belongings between the parties’ respective residences, and the receiving party shall ensure that items the child brings are returned with him.
Both parties may attend any appointments for the child or activity in which the child participates.
The parties shall restrict their communication to child-focused written communication.
Neither party shall disparage or speak ill of the other party in the presence of the child and shall use their best efforts to not allow any other person to do so.
The parents shall ensure that R.’s original Ontario Health Card travels with him. The Applicant Mother shall provide R.’s original Birth Certificate and social insurance card, if he has one, to the Respondent Father.
Child Support
Pursuant to the Family Law Act:
Commencing January 1, 2020, the Respondent Father shall pay to the Applicant Mother $200 per month in support of the child, R.D.H.G. For the period of January 1, 2020, to December 31, 2020, the Respondent Father owes the Applicant mother a total of $2,400.
Commencing January 1, 2021, the Respondent Father shall pay to the Applicant Mother $300 per month in support of the child, R.D.H.G. For the period of January 1, 2021, to December 31, 2021, the Respondent Father owes the Applicant mother a total of $3,600.
Commencing January 1, 2022, and continuing until August 31, 2022, the Respondent Father shall pay to the Applicant Mother $300 per month in support of the child, R.D.H.G. For the period of January 1, 2022, to August 31, 2022, the Respondent Father owes the Applicant mother a total of $2,400.
Commencing September 1, 2022, the Applicant Mother shall pay to the Respondent Father $256 per month in support of the child, R.D.H.G., that being the FCSG table amount for one child on an annual imputed income of $30,000.
The parties shall share the child’s extraordinary expenses proportionate to their respective incomes in accordance with section 7 of the Federal Child Support Guidelines. Prior to incurring any expense from which one party seeks a contribution from the other, the party shall obtain the consent of the other party to incur such expense.
Commencing in 2023, on or before June 1st each year, the parties shall exchange their Income Tax Returns and Notices of Assessment. Effective July 1st of each year, the parties shall adjust child support based on the parties’ previous year income.
Unless the support order is withdrawn form the office of the Director, Family Responsibility Office, it shall be enforced by the Director and amounts owing under the support order shall be paid to the Director, who shall pay them to the person to whom they are owed.
This order bears post judgment interest at the rate of ___ % per annum effective from the date of this order. Where there is a default in payment, the payment in default shall bear interest only from the date of the default.
Costs
[83] If the parties are unable to agree on costs, I will accept written submissions not exceeding three (3) pages (double spaced, 12-point font), in addition to Bill of Costs and Offers to Settle, in accordance with the following timelines:
• The Applicant/Mother to serve and file her submissions by August 19, 2022.
• The Respondent/Father to serve and file his submissions by September 9, 2022; and,
• The Applicant/Mother to serve and file her reply, if any, by September 16, 2022.
Justice Engelking
Date: August 2, 2022
COURT FILE NO.: FC-19-341
DATE: 2022/08/02
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Anna Evelyn McNulty, Applicant
AND
Tanner Kevin Graham, Respondent
BEFORE: Justice Engelking
COUNSEL: Jane O’Neill, for the Applicant
Lucienne MacLauchlan, for the Respondent
reasons for decision
Engelking J.
Released: August 2, 2022
[^1]: Trail Exhibit #34, Letter of Dr. Catherine Tucket to Whom it may concern dated October 27, 2021 [^2]: Report of the OCL dated August 5, 2021, p. 18 [^3]: Ibid., p. 16 [^4]: Ibid., p. 14 [^5]: Trial Exhibit #8, CPIN notes, Contact Log of Courtney Farrar dated January 27, 2021 [^6]: Trial Exhibit #61, Email from Lisa Clark-Sampson to Mr. Graham dated January 7, 2022 [^7]: Trial Exhibit #5, Affidavit of Tanner Graham Sworn on January 10, 2020 [^8]: Ibid., Exhibit “B” [^9]: Ibid., Exhibit “D” [^10]: Ibid., Exhibit “E” [^11]: Ibid., Exhibit “F” [^12]: Report of the OCL dated August 5, 2021, p. 21 [^13]: Contino v. Leonelli-Contino, [2005] 3 S.C.R. 217, 2005 SCC 63, paragraph 26