COURT FILE NO.: FC-15-FO384-01
DATE: 2022-11-08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
R.R.
Applicant
– and –
C.K.
Respondent
M. Milczarczyk, for the Applicant
J. Montes, for the Respondent
HEARD: February 14, 15, 16, 17, 18, March 3, 4, April 12, 13, 14, and June 24, 2022
the honourable mr. justice m.j. valente
decision on motion to change
Introduction
[1] The matter before me is a motion to change the Final Order of Justice Caspers dated January 6, 2017 as well as the final order provisions of Justice Caspers’ Order of May 16, 2018.
[2] Specifically, pursuant to the provisions of the Children’s Law Reform Act, RSO 1990, c.C-12, as amended, (the ‘CLRA’) the respondent father seeks to vary the Final Order of January 6, 2017 by granting him sole decision-making responsibility for the two (2) children, who are the subject of this proceeding (sometimes referred to as the ‘Children’), in the place of the applicant, or in the alternative, joint decision-making responsibility with the applicant, or in the further alternative, maximum unsupervised parenting time with the Children.
[3] For her part, the applicant mother seeks to vary the final provisions of Justice Caspers’s January 6, 2017 and May 16, 2018 Orders by rescinding the provisions in the Orders:
a) granting the respondent graduated unsupervised parenting time with the Children;
b) prohibiting the applicant from leaving the Children in the care of her parents until Family and Children Services approves the applicant’s parents to act as caregivers;
c) requiring the respondent to sign any passport application for the Children within three weeks of the applicant’s request; and
d) prohibiting the applicant from travelling outside of Canada with the Children for less than five (5) days without notification and an itinerary to the respondent, and if she intends to travel with the Children for more than five (5) days without a travel consent letter.
[4] This matter was tried over a period of eleven (11) days.
[5] This application involves two (2) children: a daughter, A.G.R., born September 2014, and a son, E.N.R., born July 2016, both of whom the applicant and the respondent are the biological parents.
Preliminary Matter
[6] On the last day of trial, the applicant brought a motion for an order initializing the names of the parties, the Children and any witnesses who may identify them. The respondent consented to the relief sought. Given the nature and sensitivity of certain of the evidence and the potential consequential harm that might be caused to one, or all, of the parties and the Children were the request order not made, I exercised my jurisdiction in accordance with the factors stipulated in section 70 of the CLRA and the principles articulated by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 SCR 835, to grant the relief sought.
Agreed Statement of Facts
[7] On November 11, 2020 applicant’s counsel served a Request to Admit. No response was delivered by the respondent. Although respondent’s counsel submitted early in the trial that her client did not necessarily agree with all of the facts stipulated in the Request to Admit, no motion was brought by the respondent for relief from the deeming provisions of the Family Law Rules. Therefore, for purposes of the proceeding before me, the respondent is deemed to admit the facts articulated in the November 11, 2020 Request to Admit pursuant to Rule 22(4).
[8] I have reproduced below certain of the admitted facts to provide further factual context to the dispute between the parties. These admitted facts are recited below as stipulated in the Request to Admit but are not necessarily set out in the same order as they appear in the Request to Admit:
- A final order made pursuant to Minutes of Settlement was made in the Ontario Court of Justice on January 6, 2017 by Justice Caspers. Both parties were represented by counsel. This order provided inter alia:
a. the applicant has sole custody of the Children
b. the respondent shall have access to third-party service providers records concerning the Children
c. the parties shall treat one another with respect
d. respondent’s unsupervised access to A.G.R. was to progress from a few hours per week to overnight starting in June 2017 and every other weekend starting in January 2018
e. respondent’s access to E.N.R. was to be arranged by the parties in writing and was to progress in a similar manner as with A.G.R.
f. respondent was to make his home available for the applicant’s inspection before commencement of overnight access
g. child support for the Children based on imputed income of $22,700 in the amount of $342 per month commencing on February 1, 2017
h. respondent to maintain the Children on any benefits available through his employment, if any
i. income disclosure
On or about March 29, 2017, the respondent violated the Order of Justice Caspers made on January 6, 2017 when he took A.G.R. from daycare and travelled with her to Hamilton on a bus on a Wednesday contrary to the access order – he did not return her to the applicant as required by the January 6, 2017 Order. The applicant filed an application and an urgent motion made without notice. The applicant ought to have filed a Motion to Change or a contempt motion in the face of the existing Final Order in January 2017.
On March 30, 2017 the Honourable Justice Rogers made an order on motion without notice directing that A.G.R. be returned to the applicant and that the respondent was to have no access to the Children until further order of the court.
On May 16, 2018 the Honourable Justice Caspers made
a. a temporary order for supervised access to the Children to take place at Child and Parent Place for 2 hours on a weekly basis with the issue of access to be adjourned to a further settlement conference; and
b. a final order where the following was provided inter alia:
i. the applicant is not to leave the Children in a caregiving role with her father or her mother until Family and Children’s Services has approved them to act in a capacity as a caregiver and has provided a letter to that effect.
ii. the parties are not to attend within 100 metres of the other parties’ residence
iii. the parties shall advise the other of any change in address at least 60 days in advance of that change taking place.
iv. passport application for the Children to be signed by the respondent
v. conditions for travel with the respondent’s consent (for trips 5 days in duration or more) and without his consent (for trips of less than 5 days in duration)
vi. fixing child support arrears and providing for the repayment of same by the respondent namely:
$3,500 by September 1, 2018
$100 per month commencing on October 1, 2018 until paid in full (in addition to ongoing child support)
vii. requiring the respondent to provide the applicant details of his income within 30 days and any change in income within 7 days of the change taking place.
viii. no travel during the respondent’s time with the Children.
After March 30, 2017 the applicant had no access to the Children for over a year-and-a-half. Supervised access at Child and Parent Place commenced on November 10, 2018. Between March 29, 2017 and November 10, 2018 A.G.R. was never with the respondent in an unsupervised or supervised setting. The respondent never in E.N.R.’s life had unsupervised access to E.N.R. – his only contact with E.N.R. was in the applicant’s presence. The last time that the respondent had any in-person access with E.N.R. was in December 2016 and the same occurred with the applicant present – E.N.R. was breastfed and about 5 months old at the time. Structured access with A.G.R. was restored in a supervised capacity by virtue of the order of Justice Caspers made on May 16, 2018.
On March 5, 2020 the Child and Parent Place issued a warning to the respondent on account of cancelling regularly scheduled visits on December 7, 2019, January 18, 2020, and February 29, 2020. This written warning followed a verbal warning issued on January 7, 2020 regarding the respondent’s lack of compliance with the Child and Parent Place Terms of Service.
On April 3, 2017 Family and Children’s Services issued a letter to the applicant regarding a referral they received on March 7, 2017 (which referral was initiated by the respondent) regarding child protection issues namely:
a. that the applicant was prostituting herself with the Children present in her home,
b. that the applicant gave the Children Tylenol and alcohol to make them sleep,
c. that the Children were being physically and sexually abused as AGR had ticks and E.N.R. was biting,
d. that AGR had a prior dislocated arm,
e. that AGR had a chipped tooth (reported by the respondent on March 30, 2017).
the respondent’s concerns reported to Family and Children’s Services were jointly investigated by Family and Children’s Services and Waterloo Regional Police. None of these concerns were verified.
On March 31, 2017 Dr. K. Luce, the family physician of AGR since she was born reported that he had no concerns about the parenting that AGR received from her mom.
the respondent has not paid any child support to the applicant as ordered in the Final Order of Justice Caspers made on January 6, 2017 and the Final Order of Justice Caspers made on May 16, 2018. There have been nominal garnishments of his government benefits.
Since September 2019 the respondent has not paid his fees for Our Family Wizard which the parties were using to communicate. Accordingly, there has been no communication between the parties since that time.
Background Facts
A. The Applicant:
[9] The applicant mother is 33 years of age. She is university educated, having earned a master’s degree from the University of Torino, Italy. She is a heritage planner by profession and is currently employed by a planning consultant firm which pays her an approximate gross annual income of $75,000 from which she supports herself and the Children. The applicant owns her own three (3) bedroom home in Woodstock where she lives alone with the two children, aged 7 and 6. She works both from home and the office.
[10] The applicant testified that she had anxiety and depression in 2016 for which she sought treatment. She currently remains anxious and has post traumatic stress disorder, the main source of which is the respondent.
[11] The applicant has enrolled the Children in a local elementary school where they are performing well. In addition to school, the Children are occupied with and enjoy gymnastics, soccer, ball hockey and taekwondo. The applicant also teaches them piano. The applicant’s parents assist with childcare and her extended family, including her older and twin sisters and their respective families, are actively involved in the lives of the Children.
[12] The applicant’s mother, father and twin sister all testified that she is a loving, caring and ever-present parent to the two (2) children and I have no reason to question the credibility of these witnesses. In his report on behalf of the Office for the Children’s Lawyer, delivered on or about April 4, 2018, social worker, Glory To, makes the following, among other, positive observations about the relationship between the mother and the Children:
a) the Children are both very affectionate with the applicant;
b) the Children smiled, laughed and thrived on the attention received from the applicant;
c) the applicant appears to be in-tune with the Children’s desires; and
d) the interaction between the applicant and the Children appears to be caring and affectionate.
[13] The applicant responded to the questions posed to her in chief and on cross examination directly, succinctly and without hesitation. With the exception of the applicant’s description of her parents’ involvement with the Children, I find the applicant mother to be credible.
B. The Respondent:
[14] The respondent father is 40 years of age and is of Dutch and Pakistani heritage. After his parents’ divorce at the age of 3, he lived with his mother whom he describes as abusive. He grew up with feelings of rejection and a lack of focus. Between 2001 and 2009 he was convicted of assault, uttering threats and assaulting a police officer. None of these convictions involved the applicant.
[15] Since 2015, the respondent has been employed as a door-to-door salesperson selling intranet, TV and security services. His work in very much weather dependant. While he is admittedly currently not focused on work because of this litigation, the respondent is resolved to improve himself. To that end, sometime after 2015 he completed one of several courses to be licensed as a real estate agent only to discover in 2018 that he cannot be a licensed agent because of his existing criminal record. The respondent testified that although he has applied for a pardon of his convictions, his application has been delayed due to the recent COVID-19 pandemic. He does not know its current status.
[16] The respondent’s 2020 notice of assessment records his net income as $28,972 inclusive of public assistance in the amount of $8,972. He admits that: (a) he has a current monthly support obligation to the Children of $342 pursuant to the January 6, 2027 Final Order, (b) he has not paid the support arrears of $7,000 ordered by the May 16, 2019 Order; and (c) he is not meeting his current support obligations to the Children or to his daughter of a previous relationship described below. While he does not admit the current child support arrears for the Children are approximately $20,000, as suggested by the applicant’s counsel, his only dispute is that a few payments of $10 or so dating back to 2021 have not been properly credited to the outstanding arrears.
[17] The respondent currently lives in a three (3) bedroom subsidized home in a residential area in Hamilton. The respondent’s 18-year-old son, D.W., from a prior relationship lives with the respondent part-time; otherwise the respondent lives alone. The respondent does not have a motor vehicle license, having accumulated unpaid fines some years prior to the birth of the Children.
[18] In addition to D.W., the respondent also has a daughter from the same previous relationship, A.K., who is 17 years old. The respondent testified that although he had a good relationship with A.K., it was poisoned by her mother and the respondent has had no contact with his older daughter since July 2017. On the other hand, the respondent has a strong and loving relationship with his son, D.W. D.W. has lived with the respondent since grade 9. D.W. describes his father as a supportive and communicative parent. He credits the respondent with his graduating from high school while working part-time at McDonald’s. D.W. is also appreciative of the respondent allowing him to live, what the respondent describes as, “his best life” between the respondent’s home, his cousin’s home and that of a friend.
[19] The respondent’s sister, A.K., testified that her brother has strong morals, is responsible and knows the difference between right and wrong. Both she and the respondent’s friend, A.H., agreed that the respondent interacts well with children and is trustworthy.
[20] The respondent describes himself as a “victim” of his relationship with the applicant and the mother of his older children. He testified that he is also a “victim” of racism and bias, and no one is prepared to take his concerns seriously, including the police and the Children’s Aid Society. He was often aggressive and non-responsive to the questions put to him. He needs to control the conversation. His testimony was also often characterized by monologues. He “prefers not to criticize himself”. The respondent’s sister, A.K., described him as someone who can be loud, and who “stands his ground” if you disagree with him. In her opinion he has a “short fuse”.
C. The Parties Relationship:
[21] The parties met in 2013 and had a relationship with periodic breakups until following their son’s birth in July 2016 when the relationship finally ended. They did not live together except for a brief period when the applicant was pregnant with their daughter. Their relationship can be best described as high conflict with periods of reconciliation. Neither party had anything positive to say about the other’s parenting abilities. Their negative opinion of each other is, in my opinion, due to their tumultuous short history and the inherent high conflict nature of parenting litigation.
[22] For her part, the applicant describes the respondent as sexually abusive. He made several unwanted sexual advances and called her a “lesbian” if she rejected him. Prior to their son’s birth, it is the applicant’s position that the respondent sexually assaulted her. Although she reported the assault to the police, no charges were laid. The applicant also testified that the respondent is emotionally abusive. He would often make anti-Semitic comments about the applicant’s Jewish heritage and the fair colour of her skin. He alleged that the applicant was a prostitute who advertised her services on the Internet and who had sex in front of the Children. The respondent also alleged the applicant was a “crack whore” and a member of a pedophile ring. The respondent confirmed his allegations of sexual impropriety and drug abuse at trial, all of which the applicant denied. I find any and all such allegations to be unsupported in their entirety by the evidence.
[23] Finally, the applicant claims the respondent to be physically aggressive. On one occasion in March 2017, when the applicant was living in a Cambridge apartment, the respondent jumped out from behind a dumpster yelling profanities at her as the applicant exited her car. This type of aggressive erratic behaviour is the source of the applicant’s fear of the children’s father.
[24] The respondent maintains that it is the applicant, and not he, who is a racist. In the early days of their relationship, the applicant continually made derogatory comments about his Pakistani background. Save and except for the assertion that the applicant worked in the sex trade and used illegal drugs, the respondent denies the applicant’s allegations as unfounded and malicious just as he denies a history of violence and intimidation. Specifically, the respondent denied that he jumped out from behind a dumpster to accost the applicant but rather approached her in the apartment parking lot to sign some unidentified day care papers.
[25] More important than any misconduct on his part, the respondent asserts that the applicant has since the birth of the Children put them in an unsafe environment. That unsafe environment, according to the respondent, is the only possible explanation for alleged unexplained historical bruises and scratches on the Children, A.G.R.’s dislocated arm, and E.N.R.’s biting. In addition to putting the Children in a high-risk environment of physical abuse, the respondent maintains that because of the applicant’s irresponsible conduct, the Children are also at risk of sexual abuse. The basis of this allegation is that the applicant advised him that as a child both she and her twin sister were sexually abused by their mother with the knowledge of their father. By permitting the Children to be in the care of her parents, the respondent maintains that the applicant is perpetuating the sexual abuse and trauma she once suffered.
[26] I reserve my comments and findings with respect to the allegations of physical and sexual abuse to later in this Judgment. I would note, however, at this point in my decision that all of the parties’ allegations, including the allegations of physical, emotional and sexual abuse were documented in the court record prior to the issuance of the May 16, 2018 Order.
[27] Otherwise, the respondent is distrustful of the applicant and is fearful that she may flee the jurisdiction with the Children to live in Egypt. The basis for the respondent’s belief is that the applicant allegedly told him that she intended to work for UNESCO in that country. The applicant maintains that there is no basis for the respondent’s fear; she is well settled in Ontario.
[28] Notwithstanding the respondent’s apprehension that the applicant is prone to put the Children in situations of danger, he denies that applicant’s assertion that he refused to sign the passport applications for the Children as required by the January 6, 2017 Final Order. He asserts that he does not wish to control the applicant and responded positively to the applicant’s several requests to sign the applications. In support of his position, a former legal assistant to the respondent’s counsel testified that she delivered to the applicant’s former counsel certain unidentified passport documents signed by the respondent.
D. The Respondent’s Parenting Time Prior to March 2017:
[29] Because the applicant and the respondent lived in different cities after their daughter was born and the respondent did not have a drivers license, arranging parenting time for the respondent was difficult. This difficulty was compounded by the fact that following an altercation, the respondent was prohibited from attending the applicant’s parents’ home where she was living following A.G.R.’s birth.
[30] Nonetheless there were irregular visits necessitated by the respondent taking the bus to Cambridge and the applicant meeting him there. Later, the applicant drove to the respondent’s Hamilton home with A.G.R. every other week for parenting time until the applicant learned that the respondent rented a room to an individual involved in the drug trade. The applicant’s trips to Hamilton ended in the summer of 2015. Thereafter the respondent’s parenting time with A.G.R. was sporadic at best until Justice Perry’s Order of November 25, 2016.
[31] Pursuant to the November 25, 2016 Order, the respondent was granted supervised parenting time with A.G.R. once a week on Saturdays for three (3) hours. The applicant testified that the mandated parenting time went well so she was prepared to sign the minutes of settlement that were incorporated into the Final Order of January 6, 2017. Prior to this consent Order, the respondent had one parenting time visit with E.N.R. in August 2016.
[32] Although the January 6, 2017 Final Order provided for limited unsupervised parenting time, the respondent’s parenting time was initially exercised at the applicant’s home until his second visit when he made alleged unwanted sexual advances towards the applicant after which parenting time with A.G.R. was arranged at her day care centre. Following seven (7) consecutive missed visits, the respondents’ parenting time resumed with three (3) visits until March 28, 2017 when he failed to return A.G.R. to the day care centre at the appointed time.
The Respondent’s Conduct on March 29, 2017
[33] The respondent’s abduction of A.G.R. (or as respondent’s counsel prefers, “apprehension” of A.G.R.) from daycare on the occasion of his March 29, 2017 parenting time deserves further comment. The respondent’s evidence is that he did not return A.G.R. to her daycare by 4 p.m. as required by the January 6, 2017 Final Order because he observed bruises and scratches on her legs and that she was picking at her belly button which, in his opinion, was indicative of “post stress disorder”. His concerns for A.G.R.’s well being were heightened by A.G.R.’s chipped tooth that was not previously satisfactorily explained to him. Because of these and other concerns explained below, instead of returning A.G.R. as required by the January 6, 2017 Final Order, the respondent took his daughter to the Hamilton Police and Children’s Aid Society to report the alleged abuse. The respondent offered no explanation for his failure to take A.G.R. to the hospital notwithstanding the alleged severity of her condition. Although the respondent admitted that he violated the 2017 Final Order on March 29, 2017, his actions were fully justified in his mind because he “had a higher obligation to [his] kids than obeying a Court order”. According to information he had read on the Internet, it was the respondent’s obligation to keep his daughter until he knew she was in a safe place.
[34] Not surprisingly, on March 30, 2017 Justice Rogers disagreed with the respondent’s interpretation of his obligation to A.G.R. and ordered her immediate return without access until further order of the Court. That order was not made until May 16, 2018. Additionally, no investigation was undertaken by the Hamilton Police or Children’s Aid Society.
Allegations of Sexual Abuse
[35] In addition to the respondent’s concerns that A.G.R. may be the subject of physical abuse, he also testified that on March 29, 2017 he was equally troubled by the possibility that his daughter may have been sexually abused by her maternal grandmother. The genesis of this concern was the applicant’s statements to the respondent in the early days of their relationship that both she and her sisters were sexually abused by their mother as young girls. Correspondence from the applicant to the respondent confirms the applicant’s alleged sexual abuse and on cross-examination the applicant admitted advising the respondent that she had been sexually abused by her mother with her father’s knowledge.
[36] The applicant testified that because of the allegations of sexual abuse against her mother the applicant agreed with Waterloo Family and Children Services in early February 2016 that while living with her parents she was not to leave A.G.R. with her grandmother in a caregiving role (the ‘Safety Plan’). The applicant further testified that the Safety Plan commitment ended soon thereafter when she moved to her own apartment in Cambridge and prior to the issuance of the consent Final Order of January 6, 2017. The applicant’s move to live independently is, in the submissions of her counsel, the reason that the January 2017 Final Order includes no prohibition that her parent’s act in a caregiving role to the Children, A.G.R. and E.N.R.
[37] I also note that not only did Waterloo Family and Children’s Services confirm by letter, dated April 3, 2017, that none of the respondent’s physical and sexual abuse concerns were verified by it or the local police, but by further letter, dated September 11, 2017, the same Family and Children’s Services agency confirmed that it had no concerns with respect to the applicant’s care of the Children, and as a result, was closing its file.
[38] Based on the record before me, I concur with the Waterloo Family and Children’s Services’ opinion that there is no basis to the respondent’s allegations that the Children were physically abused while in the applicant’s care. The respondent’s suspicions of physical abuse are simply not supported by the evidence. I also find that the Children have not been sexually abused while in the applicant’s care. My reasons for this conclusion are detailed below in the discussion respecting the respondent’s position regarding a material change of circumstances since the Final Order of January 6, 2017.
[39] On the other hand, the respondent disagrees with the 2017 conclusion of the Waterloo Family and Children’s Services and Police. In his opinion, their joint investigation was incomplete and biased. The respondent continued to raise concerns about the Children’s continued exposure to their maternal grandparents. In particular, he voiced his objection to the Children being in their grandmother’s care to the Office of the Children’s Lawyer clinician, Glory To, who recommended in his April 6, 2018 report that Waterloo Family and Children’s Services “re-evaluate concerns of [A.G.R.] and [E.N.R.] being cared for by [the applicant’s] mother. Mr. To’s recommendation ultimately found its way into the provisions of the May 16, 2018 Order that prohibited the applicant from leaving the Children in a caregiving role with her father or mother until Family Services “has approved them to act in a capacity as a caregiver and provided a letter to this effect”.
The Respondent’s Parenting Time with the Children Subsequent to May 16, 2018
[40] The interim parenting time Order of May 16, 2018 provided for supervised parenting time with both children for two (2) hours on a weekly basis at the Cambridge Child and Parent Place. The Child and Parent Place records were admitted in evidence for their authenticity. The records indicate supervised access commenced at the facility on November 3, 2018 and was exercised by the respondent every two (2) weeks on average until February 1, 2020 subject to four (4) cancellations by respondent. The respondent did not dispute the accuracy of the records and testified that his in-person supervised parenting time terminated because of the pandemic and had not resumed as at the last date of trial.
[41] Indeed, it is the respondent’s evidence that since February 2020 he has had no contact with the Children. Although the Child and Parent Pace offered Zoom conferences between he and the Children, the respondent did not avail himself of that opportunity. In his words: “I knew that this was no use. They were just looking out for their government budget”. The respondent also admitted that since March 2017 he has not provided the Children with birthday or Christmas cards and gifts. He conceded that he “could have done that” but did not because he had no assurances that the Children would have received them based on the applicant’s past conduct. He testified that the applicant refused to accept his gifts for the Children in the past when he and the Children were observed by Glory To in April 2018. He also pointed to the applicant’s decision to sell on eBay his gifted shoes for E.N.R. when they were too small for him. Finally, the respondent admitted that he has not communicated with the applicant through the “My Family Wizard” platform as required by the May 16, 2018 Order for several years and has allowed his account to lapse because the applicant allegedly stopped sending him pictures of the Children, but he is now prepared to reactivate his account.
Legal Principles
[42] In order to determine a request to change an order for decision-making or parenting time, the Court must embark upon the two-stage inquiry particularized by the Supreme Court of Canada in Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.
[43] The first step requires an inquiry as to whether there has been a material change in circumstances since the last order was made. In particular, as summarized by Justice Pazaratz in F.K. v. A. K., 2020 ONSC 3726:
There must be a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs.
The change must materially affect the child.
It must be a change which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. The change must be substantial, continuing and “if known at the time, could likely have resulted in a different order”. L.M.L.P. v. L.S. [2011] SCC 64.
The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing order.
If there is no material change in circumstances, the inquiry ends. The Court would be without jurisdiction to vary the order. Litman v. Sherman, 2008 ONCA 485 (Ont.C.A.).
If there is a material change, the Court must move to the second stage and consider the best interests of the child and whether to vary the original order.
[44] If the court determines that there has indeed been a material change in circumstances, the second step requires:
The Court to embark on a fresh inquiry into the best interests of the child.
In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. Bubis v. Jones, 2000 CanLII 22571 (ONSC); Persaud v. Garcia-Persaud 2009 ONCA 782; Rolson v. Clyde, 2017 ONSC 3642
The Court must ascertain the child’s best interests from the perspective of the child rather than that of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child. Gordon v Goertz; Young v. Young 2003 CanLII 3320 (Ont.C.A.)
The child should have maximum contact with both parents if it is consistent with the child’s best interests. Gordon v Goertz; Rigillo v Rigillo 2019 ONCA 548
Any assessment of the best interest of the child must take into account all of the relevant circumstances pertaining to the child’s needs and the ability of each parent to meet those needs. Gordon v Goertz.
[45] Section 24 of the CLRA sets out a list of factors to be considered in determining the best interests of a child, all of which I have considered.
Positions of the Parties and Analysis
A. The Respondent
[46] In her closing submissions, counsel for the respondent argued that since the two (2) subject Final Orders of 2017 and 2018 were made, there have been three (3) incidents of a material change in circumstances which necessitate that the respondent be granted sole decision-making responsibility for the Children in order to ensure that their best interests are protected. These three (3) incidents are:
i. the possibility that the Children are being physically abused;
ii. the applicant’s parental alienation of the respondent by refusing his gifts for the Children, and
iii. the applicant’s breach of the provisions of the May 16, 2018 Order that prohibits her from leaving the Children in the care of her parents.
[47] The respondent’s position regarding the applicant’s physical abuse of the Children was raised before the two (2) Final Orders were made. There are no new allegations of physical abuse. The allegations were investigated by the Children’s Aid Society and the police; they both concluded the allegations were without merit. I, too, have found that there is no evidence to support the position.
[48] Just as the respondent’s position regarding physical abuse does not constitute a material change in circumstances, so too does his parental alienation argument fail. If the applicant’s refusal of father’s gifts for the Children is in any way material, and I question that it is, her conduct was well known before the Final Orders, and I dismiss the argument outright.
[49] The respondent’s argument that the pplicant breached a provision of the May 16, 2018 Final Order does, however, require consideration. Firstly, while the applicant maintains that she was sexually abused by her mother as a child, it is also her evidence that “there has been reconciliation and discussion” with her mother.
[50] As for the applicant’s mother, who testified in a straightforward fashion and without hesitation, she denied all allegations of inappropriate sexual touching of the applicant as a child and expressed sincere shock at the suggestion. The applicant’s mother also stated that she had no knowledge of the Safety Plan or the provision in the May 16, 2018 Final Order prohibiting her and her husband from acting as caregivers to the Children. Had she known of this prohibition prior to testifying, it was her evidence that she would have contacted the Children’s Aid Society to undertake an investigation of her conduct. In her words, she was “devastated” by the suggestion that she may be a child sex abuser.
[51] The applicant’s father supported his wife’s testimony by denying any inappropriate conduct on her part and any knowledge of the May 2018 Final Order prohibiting their caregiving role as grandparents to the Children. The applicant’s twin sister went further than her father by stating that the applicant’s allegations of sexual abuse as a child are simply false; neither she nor the applicant were ever sexually abused by their mother. Furthermore, she has no concerns for the safety of her two daughters, aged 5 years and 10 months, in the care of her mother and regularly entrusts them into the care of her parents.
[52] There is also conflicting evidence regarding the degree of interaction between the grandparents and the Children following the May 2018 Order. The applicant testified that her parents assist with the Children under her supervision and sometimes they take the Children to church on Sundays at which time they are alone with them for approximately an hour and a quarter. On the other hand, the applicant’s mother testified she sees the Children usually once a week after school in the absence of the applicant from 3 to 5:30 p.m. during which time they bake, do crafts and enjoy outings. The Children also sleep over at their grandparents’ home every six (6) weeks or so. According to the applicant’s father, he sees the Children unsupervised by his daughter more often than his wife. He picks them up two (2) to three (3) times a week from the school bus and transports them to their home or to his residence.
[53] Where there is no dispute in the evidence is that immediately following the May 2018 Final Order, the applicant contacted Family and Children’s Services to seek its approval for her parents to act in a caregiving role for the Children. The uncontradicted evidence is that on May 18 and June 13, 2018, the applicant contacted Family and Children Services to seek this approval. These messages were followed up with an email on July 23, 2018 to Family Services’ legal counsel, Cheryl Baehler, and a further telephone message on Aug 20, 2018. On November 6, 2018, and again on November 14, 2018 the applicant emailed Ms. Baehler requesting a letter confirming legal counsel’s earlier advice that Family Services would not be opening a file to undertake an investigation to approve the applicant’s parents as caregivers for the Children. No written confirmation of Cheryl Baehler’s advice was, however, not received.
[54] It is the applicant’s evidence that Ms. Baehler advised her soon after the issuance of the May 16, 2018 Order that Family Services would not consider the caregiving role of her parents because the issue was “not a part of their eligibility spectrum”. I accept the evidence of the applicant that Family Services was not prepared to intervene on the basis of her oral testimony and written communications with Family and Children Services as well as the fact in September 2017, by letter dated September 11, 2017, Family Services confirmed that the sexual abuse allegations of the respondent were not verified, it was closing its file and wished the applicant all the best in the future.
[55] I am unable to reconcile the two very conflicting versions of events regarding the alleged sexual abuse of the applicant as a youngster by her mother. However, in the circumstances of this case I do not have to make a finding on the issue. On the other hand, I am required to find if the Final Order of May 16, 2018 was breached by the applicant. I am satisfied in all of the circumstances the Final Order was not breached by her. In my opinion, the applicant did all that she could to seek the required approval of Family and Children Services for her parents to act in a caregiving role and it was simply not prepared to act. The applicant could not have done more. In practical terms, the subject provision of Justice Caspers’ May 2018 Final Order was simply not capable of being observed and fulfilled.
[56] By extension of the respondent’s change of circumstances argument, I am also required to consider if the Children have been sexually abused.
[57] I find there is absolutely no evidence before me to suggest that the Children have been sexually abused by their grandmother or by anyone; and that there is no foreseeable future risk of any such abuse. The unfounded allegation that the applicant was sexually abused by her mother more than twenty (20) years ago and the respondent’s mere suspicion that the Children may also be the subject of such abuse at the hands of their maternal grandmother are simply not sufficient grounds to reach the conclusion that the respondent urges on this Court. His insistence and persistence in pursuing the argument verges on the vindictive. Both Family and Children Services along with the police dismissed the position of the respondent as do I. All the evidence supports the conclusion that the Children are healthy and thriving in their mother’s care. To find otherwise would be a perverse interpretation of the evidence. In short, there has been no change in the Children’s circumstances as the respondent would have this Court believe.
[58] Had I found a material change in the Children’s circumstances, I would have nonetheless had great difficulty in awarding the respondent sole decision-making responsibility or shared decision-making responsibility with the applicant. Apart from there being no evidence of any level of co-operation between the parties with respect to promoting the best interests of the Children, and the respondent’s lack of contact with the Children for two- and one-half years, in my view the respondent has no realistic childcare plan.
[59] The respondent suggests that should the Children require care when he is working door to door sales in the afternoons and early evenings and studying for his real estate license at night or otherwise occupied, such family members as his sister, A.M., half-brother, N.Y.K., son D.W., and friend, A.H., will gladly assist as needed. Based on the evidence, I cannot accept this proposition as realistic. The respondent’s sister is busy with her work and own children and sees the respondent “only so often”. His half brother has not seen the respondent for three- and one-half to four years. The respondent’s friend is a firefighter who lives some one and one-half hours away from the respondent and the respondent’s son “enjoys his freedom”. Furthermore, notwithstanding the good intentions of the respondent’s family and friend, his sister and son have met A.G.R. only once, the respondent’s friend has met her twice, the respondent’s brother has never met his niece. In addition, none of the proposed caregivers have met the respondent’s son, E.N.K. This lack of attachment to the Children is very concerning to me.
[60] To a lesser extent, I am concerned about the respondent’s ability to satisfy the Children’s material needs. He has testified that he is not meeting his support obligations to his daughter of a previous relationship nor to the Children. His proposal to rely on publicly funded assistance to “fill in the blanks” does not give me assurance. While it is laudable that the respondent wishes to pursue a career in real estate, one has to question his motivation when he has not taken positive steps to secure a pardon of his three (3) criminal convictions since at least 2018. The respondent’s financial instability as an able bodied 40-year-old, in my view, is indicative of a life of general instability.
[61] In the alternative to sole or shared decision-making responsibility, the respondent requests generous parenting-time. I address this alternative relief later in this Decision.
B. The Applicant
[62] The applicant argues that the unsupervised graduated parenting time provisions of the January 6, 2017 Final Order should be varied to provide the respondent with no parenting time. Her counsel submits that this variation is warranted in the face of the respondent’s abduction of A.G.R. on March 29, 2017 and on account of the respondent’s long-term harassment of the applicant, his unpredictable behaviour, ongoing denigration of the applicant and his lack of relationship with the Children. The applicant also argues because of the respondent’s failure to co-operate in providing his consent for the issuance of the Children’s passport, that provision in the May 16, 2018 Final Order, along with the corollary requirement that the respondent consent to any extended travel, be varied.
[63] The jurisprudence is very clear that denying parenting time is a remedy of last resort: see Jennings v. Garrett (2004), 2004 CanLII 17126 (ON SC), 5 R.F.L. (6th) 319 (Ont. S.C.), at para. 128; Van v. Palombi, 2018 ONSC 6228, at par. 73; and Byrne v. Hann, 2020 ONSC 7116, at para. 36. In these and other decisions, emphasis is placed on first exploring other options for parenting time and only resorting to a no contact order when all other options have been unsuccessful; see Jennings v. Garrett at para. 148; Van v. Palombi at para. 73; and Byrne v. Hann at para. 37.
[64] Having said that, as noted by Justice Corthorn in the 2021 decision of Jordan v. La Russa (2021 ONSC 8281), the 2004 decision of Justice Blishen in Jennings v. Garrett continues to be cited as the authority for the factors to be considered with respect to termination of parenting time.
C. Analysis
[65] After considering the relevant case law, Justice Blishen concluded that seven (7) factors are to be considered. Counsel for the applicant submits that all seven (7) factors are relevant to the matter before me but for (i) extreme parental alienation and (ii) older children’s wishes and preferences to terminate access. Of the five (5) relevant factors, applicant’s counsel’s submissions and my analysis are as follows:
a. Long term harassment and harmful behaviours towards the custodial parent causing that parent and child stress or fear.
b. Ongoing severe denigration of the other parent.
[66] Counsel submits that the respondent’s characterization of the applicant as a prostitute, “crack whore”, racist and one who continually exposes the Children to pedophiles and other situations of danger has caused the mother considerable stress and is responsible for her post traumatic stress.
[67] While I have no doubt that the respondent’s unfounded and largely outlandish accusations have caused the applicant considerable stress and are inexcusable, there is no medical evidence before me that the applicant has been diagnosed with a post-traumatic stress disorder. I also note that there is no evidence that the Children have been exposed to the respondent’s harmful behaviour or that it has indirectly caused the Children stress or fear because of its impact on the applicant. Further, unlike many of the cases where a no contact order has been made, this is not a situation where a restraining order is in place. Finally, the respondent’s behaviour predates the Final Order of January 6, 2017 and the later Order of May 16, 2018. There are no incidents of harmful behaviour towards the custodial parent since the two (2) Final Orders were issued.
[68] The harassment was well known by the parties when they entered into the Minutes of Settlement that formed the foundation of the January 2017 Final Order that provides for unsupervised graduated parenting time. In other words, there is no material change of circumstances.
c. Lack of relationship or attachment between noncustodial parent and child
[69] Glory To testified that, at least in 2018, there was no attachment between the respondent and the Children because he chose to live in another city. The applicant argues that the January 2017 Final Order was designed to foster attachment, but the respondent destroyed any opportunity for a relationship by abducting A.G.R. on March 29, 2017. Parenting time was thereafter not resumed until November 2018 after which the respondent missed several appointments and ultimately all parenting time was abandoned with the onset of the pandemic and has not resumed since. The applicant also testified that the Children now tell people they have no father.
[70] While I am not critical of the respondent for not having moved to the same city in which the Children live given his relationship with his son of a previous relationship, I am more than troubled by the respondent’s total disrespect for the Court order of January 6, 2017 (discussed further below) and his failure to resume some form of parenting time at some point during the pandemic and currently. On the other hand, the respondent missed only four (4) of the scheduled supervised visits over a fourteen (14) month period because of what he explained as weather and/or transportation issues, which I accept, has testified that he is now prepared to resume communicating with the applicant by means of the My Family Wizard app, and most importantly, that he loves his children and wishes to foster a relationship with them. Furthermore, there is no evidence of the Children being hostile towards their father during their supervised visits and no evidence of the Children being withdrawn before or after their visits with the respondent. The applicant did not testify that the supervised visits had such negative impacts on the Children as nightmares and bed wetting. These negative consequences are characteristic of many of the decisions in which no contact orders have been made. On the contrary, the Child and Parent Place notes of the supervised parenting time visits (admitted for both their authenticity and truth of their contents) record, for the most part, happy, playful, and interactive exchanges between father and children.
d. History of violence, unpredictable, uncontrollable behaviour
e. Neglect or abuse to a child on access visits.
[71] Applicant’s counsel points to the respondent’s March 2017 abduction of his daughter as evidence of unpredictable behaviour. Only three (3) months after he agreed to the January 2017 Final Order, he ignored the terms of the consent Order in reliance on internet advice and alleged bruises and scratches that were never documented. This same conduct of the respondent, applicant’s counsel argues, is neglectful of the child’s bond with her mother.
[72] There is no excuse or justifiable explanation for the respondent’s violation of the January 6, 2017 Final Order. His conduct cannot be condoned under any circumstances. I do, however, have some confidence that the respondent now appreciates the irresponsible nature of his earlier actions. At trial he testified that had he known that instead of taking matters into his own hands, he should have sought the assistance of the Court to address his perceived harm to AGK, he would have done so. In addition to this hard lesson learned, there is no evidence to suggest that the Children will not be physically or emotionally safe while with their father and nor is their any history of the respondent being violent or losing control in the presence of the Children, conduct which has convinced some of my judicial colleagues to impose a no contact order. Finally, I am mindful of the fact that following the March 2017 abduction of AGK, Justice Caspers in her May 16, 2018 Order made a temporary order granting the respondent supervised parenting time in the face of the past events of March 29, 2017.
[73] Therefore, for all of the above reasons, I am not prepared at this time to make the no parenting time order requested by the applicant. On the other hand, the respondent’s liberal unsupervised parenting time that he has requested is simply out of the question in the current circumstances. If he and the Children are to have a mutually beneficial and fulfilling relationship, there needs to be a period of readjustment and monitoring. I set out the details of my supervised parenting time order at the conclusion of this Judgment.
[74] I am, however, prepared to agree with the applicant’s request that she not be required to obtain the respondent’s consent to passports for the Children and extended travel with the Children. I am satisfied based on the evidence and the manner in which the respondent testified that he needs to control the situation, and to the extent possible, those around him. On the other hand, I am not satisfied that in the past the respondent provided to the applicant all necessary forms to obtain passports for the Children, or in any event, within a reasonable period of time. Furthermore, I have no concern that the applicant will permanently relocate from this jurisdiction with the Children and without leave of this Court. She has a good job, a home and her family support network in southern Ontario. Simply put, the applicant’s roots are here. Accordingly, I find that there is no need of the applicant to seek the respondent’s consent or provide him with a travel itinerary prior to leaving for vacation. I would, however, encourage the applicant to advise the respondent of her plans in advance of any travel with the Children.
Disposition
[75] For the above noted reasons, the following Order will issue:
the respondent’s motion to change is dismissed;
the applicant’s motion to change denying the respondent parenting time of any nature is dismissed, however, the final orders of Justice Caspers dated January 6, 2017 and May 16, 2018 are varied as follows:
a. paragraphs 3, 5, 6, 7, 8, and 9 of the Final Order of January 6, 2017 are to be deleted in their entirety;
b. paragraphs 3, 9 and 10 of the Final Order of May 16, 2018 are to be deleted in their entirety; and
c. the second sentence of paragraph 1 of the Final Order of January 6, 2017 will be deleted and, in its place, I order that the applicant advise the respondent in writing via the My Family Wizard platform of any major decisions affecting the Children as made by her.
All other provisions of the Final Orders dated January 6, 2017 and May 16, 2018 will remain in full force and effect.
[76] In addition, I order as follows:
The respondent shall have supervised parenting time visits at Child and Parent Place (Cambridge), or such other facility as the parties can agree, with the Children, A.G.R. and E.N.R., for two (2) hours on a bi-weekly basis commencing on or about the week of November 21, 2022 for a two (2) month period.
Upon the expiration of the aforesaid two (2) month period, the respondent shall have supervised access at Child and Parent Place (Cambridge), or such other facility as the parties can agree, with the Children, A.G.R. and E.N.R., for two (2) hours on a weekly basis for a two (2) month period.
During the period in which the respondent exercises supervised parenting time he will have virtual parenting time with the Children viz Zoom, or such other means as the parties may agree, every Wednesday for fifteen (15) minutes at 5:00 p.m. or such other time as the parties may agree.
Upon the expiration of the aforesaid four (4) month supervised access period, unsupervised parenting time by the respondent to the Children shall be as follows:
a. every Saturday from 10:00 a.m. to 2:00 p.m. for six (6) months,
b. thereafter, every Saturday from 10:00 a.m. to 6:00 p.m. for six (6) months, and
c. thereafter, upon the expiration of the aforesaid twelve (12) months of Saturday parenting time:
i. every other weekend from Saturday at 10:00 a.m. to Sunday at 5:00 p.m.;
ii. two (2) weeks, non-consecutive in July and August of each year;
iii. in odd-numbered years, from December 24 at 11:00 a.m. to December 25 at 11:00 a.m. and in even-numbered years from December 25 at 11:00 a.m. to December 26 at 11:00 a.m.;
iv. during March break, from Wednesday at noon to Friday at 5:00 p.m. with such parenting time attaching to his regular weekend parenting time as applicable; and
v. every Father’s Day from 10:00 a.m. to 5:00 p.m.
In order to facilitate the supervised parenting time both the applicant and the respondent will attend at Child and Parent Place for the necessary intake appointments within seven (7) days of this Decision.
Under no circumstances will the respondent leave Child and Parent Place with the Children during his supervised parenting time.
The respondent will provide the applicant with the parenting time notes generated by the Child and Parent Place on a monthly basis.
All costs associated with the exercise of the respondent’s parenting time are for the respondent to pay, including but not limited to transportation costs.
In the very unfortunate event that the respondent fails to adhere to the parenting time provisions of this Order, the police force having jurisdiction where one or both of the Children may be found, is hereby ordered to locate, apprehend and deliver one or both of the Children to the applicant at any time that the applicant requests the police to do this.
The applicant may obtain and submit a passport application for the Children, A.G.R. and E.N.R., without the respondent’s written consent.
The applicant may travel with the Children, A.G.R. and E.N.R., outside of Ontario without the respondent’s written consent.
The applicant is not permitted to live outside Ontario without an Order of this court.
[77] If there are any residual issues other than costs, counsel should contact the Trial Coordinator within the next seven (7) days to arrange a date to address such matters via Zoom. Otherwise, I look forward to a draft Order for my review and signature.
Costs
[78] I encourage the parties to agree on the issue of costs. If they are unable to do so, the party seeking costs shall deliver costs submissions within 15 days of the release of this Judgment and the responding party shall deliver responding costs submissions within 10 days of receipt of the submissions of the party seeking costs. Reply submissions, if any, are to be delivered within 5 days of receipt of the submissions on behalf of responding party. The initial and responding submissions are not to exceed five (5) pages doubled spaced excluding costs outlines, offers to settle and authorities. Any reply submissions are not to exceed three (3) pages. All submissions are to be sent to my attention via my Judicial Secretary by email to Kelly.Flanders@ontario.ca with a copy to the Kitchener.SCJJA@ontario.ca email address.
M.J. Valente J.
Released: November 8, 2022
COURT FILE NO.: FC-15-FO384-01
DATE: 2022-11-08
ONTARIO
SUPERIOR COURT OF JUSTICE
R.R.
– and –
C.K.
decision on motin to change
M.J. Valente J.
Released: November 8, 2022