COURT FILE NO.: 1086/22

DATE: 2022-11-22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Carina Teresa Dayboll

Applicant

– and –

Rachhpal Singh Binag

Respondent

P. Dehm, Duty Counsel, for the Applicant

Ian Britto, Counsel, for the Respondent

HEARD: November 18, 2022

JUDGMENT

THE HONOUARBLE MR. JUSTICE A. PAZARATZ

[1] This was the hearing of urgent cross-motions by parents disputing arrangements for their four-year-old daughter Rachael.

[2] The parties were in an unmarried relationship from around July 2017 until April 2021. Since separation the child has been primarily in the Applicant mother’s care. The parties disagree about how much time and involvement the Respondent father has had during the past year-and-a-half.

a. The mother says he was never very involved with the child prior to separation, and following separation he was content to have intermittent contact. She says between April 2021 and October 2022 he had perhaps 10 overnights with the child.

b. The father says he was equally involved in parenting prior to separation. He says since then the mother has been restricting his contact arbitrarily. He’s been seeing the child more regularly than the mother admits. But he says he’s always wanted to see her more.

[3] Whatever they agreed or disagreed about, for an extended period of time these parents worked out their own arrangements, and neither of them felt there was any need to involve family court. And then a few weeks ago, suddenly everything became an emergency.

[4] On October 13, 2022, the mother commenced a motion which included requests for the following temporary order:

a. Permission to proceed on an emergency ex parte basis;

b. Mother to have sole decision-making authority;

c. Child to reside with the mother;

d. Father to have no parenting time;

e. Father to return the child to mother;

f. Police enforcement;

g. Restraining order;

h. Mother to be allowed to disable and remove a security system installed in her home by the father;

i. Father to have no contact with the mother or child;

j. Father not to attend at the mother’s home or the child’s school; and,

k. Costs.

[5] On October 14, 2022, Justice Brown heard the mother’s ex parte motion. The father had just been served the night before. Both parties attended court. Justice Brown made a temporary temporary without prejudice order:

a. The child shall have her primary residence with the Applicant mother;

b. The Respondent’s parenting time shall be suspended;

c. The Respondent shall immediately return the child to the Applicant; (Justice Brown noted that the mother advised that the child had in fact been returned to her care.)

d. Police enforcement clause;

e. The Respondent shall not contact the child, directly or indirectly;

f. The Respondent shall not attend within 100 metres of the Applicant’s home in Hamilton; and,

g. The Respondent shall not attend within 100 metres of the child’s school.

[6] On October 25, 2022, at an urgent Case Conference Justice Bingham granted the following temporary without prejudice order on consent of the parties:

a. The father to spend time with the child.

i. Every Friday from 5:00 p.m. to 10:00 p.m.;

ii. Every Monday from 5:00 p.m. to 8:30 p.m.;

iii. Alternate weekends from Friday at 5:00 p.m. until Sunday at 8:30 p.m.;

iv. The Respondent Father’s time with the child shall be supervised by Crystal Binag or other supervisor agreed upon in advance between the Applicant and the Respondent;

v. Michelle Garceau shall not be present during the Respondent Father’s time with the child;

vi. The exchanges shall occur at a specified Tim Horton’s;

vii. The Temporary Restraining Order dated October 13, 2022 shall be terminated; and,

viii. The child shall not travel outside of Ontario.

b. Timelines were set for materials to be filed.

c. A Settlement Conference was scheduled for January 3, 2023 at 12:00 p.m.

[7] On November 7, 2022 the father brought a motion which included requests for the following:

a. Sole decision-making to the father;

b. Or, sole decision-making until the mother can demonstrate the child has her own bedroom and bedroom furniture;

c. Or, joint decision-making;

d. Primary residence with the father;

e. Or, mother’s parenting time to be supervised;

f. Or, equal time sharing;

g. Mother’s boyfriend Lou not to be around the child;

h. Or, mother’s boyfriend Lou only to have supervised visits;

i. Parties to communicate through software such as Our Family Wizard;

j. Exchanges at school, YWCA, or another place;

k. Child not to be removed from Ontario;

l. Mutual release of third-party records relating to the child;

m. Father to maintain child’s government identification;

n. OCL referral;

o. Or, a Section 30 assessment;

p. Disclosure of The Children’s Aid Society of Hamilton (CAS) file;

q. Disclosure of Hamilton Police Service records; and,

r. Costs.

[8] The mother’s lengthy materials include the following narrative:

a. After the child was born in September 2018 the father started to become violent with the mother.

b. She described violent assaults which included beatings, kicking her in the face, choking, strangling, and hitting her violently in the face with his motorcycle helmet.

c. After they separated in April 2021 he continued to try to control and stalk her.

d. Following separation the father had sporadic visits with the child. This was consistent with his lack of commitment to the child while they were together.

e. Even after separation the father seriously assaulted the mother on a number of occasions when they happened to have contact.

f. Eventually, in March 2022 the father was charged with 11 criminal charges in relation to the mother including several assaults.

g. Between March 2022 and August 2022 there were no incidents. The father was using the mother’s health care plan and she could see that he was using prescribed medications for anxiety, depression and sleep. The mother felt the medications were helping stabilize his behaviour.

h. In September 2022 the father developed a relationship with a new girlfriend, Michelle Garceau, a Toronto police officer. The father’s behaviour changed and Garceau soon advised the mother that all communication had to go through her, and that she had power of attorney for the father. For a while Garceau was a helpful intermediary, but then she started meddling. Eventually Garceau stopped communicating with the mother.

i. On October 12, 2022, the mother sent the child to school on the bus. Later that morning she was then advised by the school that a man and woman attended at the school and took Rachael, stating that the child had an appointment which they had forgotten about when they had put the child on the bus. From the descriptions provided by school staff, it was obviously the father and Garceau (who had presented herself as Rachael’s mother, to one of the few school staff members who didn’t know what the mother looked like).

j. The mother contacted the police who confirmed the child was with the father, but in the absence of a court order the police would not retrieve the child.

k. CAS was already scheduled to see the father that day. When the Society worker interviewed the father he admitted that he and Garceau had attended the school and removed Rachael. He intended to withhold the child from the mother until the matter was addressed in Family Court. He also intended to keep Rachael out of school and instead he would be homeschooling her.

l. The mother said she is worried about the child’s safety in the father’s care.

[9] The father’s materials include the following narrative:

a. The father is “terrified” for the child’s safety while in the mother’s care.

b. The child has stated that the mother’s new boyfriend Lou kisses her on the lips in bed; asks for snuggle time; and places his hands on her back and bum.

c. Following separation the mother bullied the father into accepting parenting time which she unilaterally dictated.

d. The mother became more restrictive about parenting time when she learned the father was in a new relationship with Garceau. She has behaved in a spiteful manner because she is jealous of Garceau.

e. The father denies the allegations of violence and will defend the criminal charges.

f. The mother is using this court case to extort concessions from the father in relation to a civil property claim relating to title to the house in which the mother resides.

g. CAS provided a letter dated October 24, 2022, stating they are closing their file.

h. The father has a strong bond with the child.

i. The mother has manipulated the criminal court system to set the father up for unwarranted charges.

j. The father felt he was entitled to pick Rachael up at school on October 12, 2022, because it was the only way he could see his child. He says Children’s Aid and the police informed him that there is no court order in place, and he presumed he was entitled to remove the child from school. Rachael was happy to see him and go with him. The father denies deceiving anyone at the school.

k. After picking up Rachael at school he noticed her hygiene was poor and her clothes were worn. He went to Walmart and bought her some new clothes.

l. On October 29, 2022 the mother attended at the father’s residence/workplace and tried to talk to him about settling the case. She brought the child with her and drew the child into adult conversations, asking the child to choose sides. The father told her to leave because his bail conditions did not allow him to have any contact with her. She refused to leave. He picked up his cell phone to video record the confrontation. There was a great deal of commotion and police attended. The mother has been charged with criminal harassment.

m. The mother has restricted the father’s involvement with Rachael since separation and she refuses to share information about the child.

n. The father is in good health and does not suffer depression or anxiety. He attached a very brief doctor’s note, which names some medications but states nothing about the father’s health.

o. The father says the mother should take parenting classes.

[10] Michelle Garceau filed an affidavit which included the following:

a. She is the father’s partner. They live together in Hamilton.

b. She met him more than a year ago and they began a serious relationship on August 13, 2022.

c. She is a police constable in Toronto.

d. She has four daughters.

e. Rachael enjoyed her overnight visits at their home.

f. She witnessed the mother grab Rachael harshly when she was picking up the child.

g. Rachael is very closely attached to the father. She is very affectionate with him.

h. The child has also formed a bond with Garceau’s daughter.

i. Rachael advised her that her bedroom is the living room and her bed is the couch.

j. Rachael told Garceau that the mother’s boyfriend Lou likes to have cuddle times with her and kisses her on the lips.

[11] The mother denies the allegations by the father and Garceau.

[12] Section 28(1) of the Children’s Law Reform Act (“CLRA”) allows the court to make a “parenting order” to deal with the two fundamental areas affecting children’s lives:

a. Decision-making responsibility;

b. The exercise of parenting time.

[13] The court has broad powers to:

a. Allocate parenting time and decision-making;

b. Impose a schedule;

c. Provide means of communication; and,

d. Make any other orders to secure the child’s best interests.

[14] Section 24(1) of the CLRA provides that the court shall take into consideration only the best interests of a child when making a parenting order or a contact order.

[15] Section 24(2) says when considering best interest factors, primary consideration is to be given to the child’s physical, emotional and psychological safety, security and well-being. Pierre v. Pierre, 2021 ONSC 5650 (SCJ).

[16] It is also in a child’s best interests when making a parenting order that his or her caregiver be physically and emotionally safe. Q.M.S.Q. v. S.Q. 2021 ONCJ 334 (OCJ); N.S. v. A.N.S. 2021 ONSC 5283 (SCJ).

[17] Section 24(3) sets out a list of factors for the court to address in considering the circumstances of a child and determining best interests.

[18] The court is required to undertake a broad analysis of each child’s specific situation:

a. The list of best interests factors in the Act is not exhaustive. White v. Kozun, 2021 ONSC 41 (SCJ); Pereira v. Ramos, 2021 ONSC 1736 (SCJ); Seyyad v. Pathan, 2022 ONCJ 501 (OCJ).

b. None of the listed factors are given priority, except the primary consideration in Section 24(2) is overarching.

c. No single criterion is determinative. The weight to be given to each factor depends on the circumstances of the particular child.

d. The listed factors are not a checklist to be tabulated with the highest score winning. Rather, the court must take a holistic look at the child, his or her needs and the people in the child’s life. Phillips v. Phillips, 2021 ONSC 2480; W.H.C. v. W.C.M.C. 2021 ONCJ 308 (OCJ); Harry v. Moore 2021 ONCJ 341 (OCJ); McIntosh v Baker, 2022 ONSC 4235 (SCJ); Brownson v. Brownson, 2022 ONSC 5882 (SCJ).

e. An assessment of the best interests of the child must take into account all of the relevant circumstances with respect to the needs of the child and the ability of each parent to meet those needs. Mokhov v. Ratayeva, 2021 ONSC 5454 (SCJ).

f. The child’s best interests are not merely “paramount” – they are the only consideration in this analysis. Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 at para. 28; Mattina v. Mattina, 2018 ONCA 641 (ON CA).

g. The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27.(SCC). Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child. Young v. Young 1993 CanLII 34 (SCC); E.M.B. v. M.F.B. 2021 ONSC 4264 (SCJ).

h. The court’s unrelenting focus on the best interests of each particular child means that there can be no presumption in favour of any one type of parenting order. All things being equal, each child deserves to have a meaningful and consistent relationship with both parents. E.M.B. v. M.F.B. 2021 ONSC 4264 (SCJ).

[19] Typically, on an interim motion the court is presented with hastily prepared, conflicting affidavits which are incomplete and untested. The facts are often still evolving. As a result, a temporary order is meant to provide a reasonably acceptable solution on an expeditious basis for a problem that will be fully canvassed at subsequent conferences or resolved at a trial. Coe v. Tope, 2014 ONSC 4002 (SCJ); Costello and McLean, 2014 ONSC 7332 (SCJ); Munroe v. Graham, 2021 ONCJ 253 (SCJ); Nicholson v. Nicholson, 2021 ONSC 7045 (SCJ); Shokoufimogimanv. Bozorgi, 2022 ONSC 5057 (SCJ).

[20] As with many parenting disputes, this case isn’t about parental love – it’s about parental insight:

a. Both parents love Rachael equally.

b. Rachael loves both parents equally.

c. If these parents could simply interact in a mature and civilized manner, Rachael could have the best of both worlds.

d. And maybe that’s still possible. But not with the current mindsets.

[21] While I am unable to resolve certain factual disputes at this interim stage, there is sufficient uncontroverted evidence to support the following findings and concerns.

[22] The obvious starting point: Whether by agreement or acquiescence, this child has been in the mother’s care continuously for the past 18 months.

[23] Although the “status quo” is frequently mentioned as an important consideration in determining or continuing parenting arrangements – particularly at the interim stage -- the term “status quo” is not specifically mentioned in the legislation. However, Section 24(3)(d) lists “the history of care of the child” as a factor in determining best interests. That factor appears to be another way of describing “status quo”. Brownson v. Brownson, 2022 ONSC 5882 (SCJ).

a. It is a long-standing legal principle that absent evidence of a material change and that an immediate change is required, the status quo is ordinarily to be maintained until trial: Niel v. Niel, 1976 CanLII 1925 (ON CA), 28 R.F.L. 257 (Ont. C.A.); Grant v. Turgeon, 2000 CanLII 22565 (ON SC), 5 R.F.L. (5th) 326 (Ont. S.C.J.); Kimpton v. Kimpton, 2002 CarswellOnt 5030 (Ont. S.C.J.); Easton v. McAvoy, 2005 CarswellOnt 7379 (Ont. C.J.); M.W. v. E.B. and the Minister of Citizenship and Immigration, 2005 Can LII 18315 (Ont. S.C.); and Horton v. Marsh, 2008 CarswellNS 371 (N.S. S.C.).

b. The status quo is particularly important on an interim motion because the court is often not in a position to make factual findings based on incomplete and untested evidence. R.C. v. L.C., 2021 ONSC 1963 (SCJ); C.C. v. I.C., 2021 ONSC 6471 (SCJ).

c. Temporary orders are “band-aid” solutions pending a full hearing. The status quo is ordinarily maintained pending trial unless the evidence demonstrates that the best interests of the child require some modification. Sullivan v. Senechal, 2022 ONSC 557 (SCJ).

d. The status quo – and avoiding reckless creation of a new status quo - are important considerations at the interim stage. Cosentino v. Cosentino, 2016 ONSC 5621 (SCJ); Cabral v. Parker 2021 ONSC 4574 (SCJ); Viveash v. Viveash 2021 ONSC 7456 (SCJ). The longer the status quo has existed, the greater the presumption that it should be maintained pending trial, unless there is material evidence that the child’s best interests require an immediate change. W.H.C. v. W.C.M.C. 2021 ONCJ 308 (OCJ); Ceho v. Ceho, 2015 ONSC 5285 (SCJ); Batsinda v. Batsinda 2013 ONSC 7869 (SCJ); Green v. Cairns, 2004 CanLII 9301 (SCJ); Papp v. Papp, 1969 CanLII 219 (ON CA); MacDonald v. Cannell, 2021 ONSC 7769 (SCJ).

[24] While the father insists he never agreed to the child living with the mother for more than a year-and-a-half, the law is clear that acquiescence to a parenting arrangement purportedly imposed by the other parent will – with the passage of time – undermine efforts to change the status quo on an interim basis. Brownson v. Brownson, 2022 ONSC 5882 (SCJ).

[25] I find that the child has been thriving in the mother’s care.

a. The father complains about the condition of the child’s clothing when he unilaterally removed her from school. But beyond that subjective and suspiciously-timed criticism, his materials set out no significant allegation of any deficiency in the mother’s parenting skills. He never complained about the child’s clothing before, but on the day he abducted the child from school, he expresses alarm about the condition of her shoes.

b. For almost a year and a half he did nothing to challenge the child’s primary placement with the mother, or to allege any parenting deficiencies. He says all along he desperately wanted more time. But he didn’t really do anything to pursue more time.

c. The father suddenly has lots of criticisms of the mother. But it appears he did nothing to pursue any complaints for a year and a half. And when he recently reported the mother to CAS, after investigating, they were satisfied that the mother has been doing a fine job. Parents who make baseless reports to CAS not only undermine the viability of joint decision-making, but they also demonstrate a lack of insight by needlessly subjecting their child to intrusive interviews for strategic reasons. L.B. v. P.E., 2021 ONCJ 114 (OCJ); Harry v. Moore 2021 ONCJ 341 (OCJ); M.J.L. v. C.L.F., 2022 ONCJ 243 (OCJ); N.T. v. R.R.K., 2017 ONCJ 829 (OCJ); S.A. v. Y.M., 2020 ONCJ 147 (OCJ).

d. The father says he suddenly wants complete decision-making authority over the child. But he appeared quite content to leave decision-making authority to the mother for about 18 months, with very little suggestion – let alone evidence -- that she’s been making bad decisions.

[26] The father now submits the mother’s parenting time with Rachael needs to be supervised. But he offers no explanation about why she needs to be supervised, or what a supervisor should be guarding against.

a. This is one of those “tit for tat” situations which often arise on interim motions.

b. The mother’s motion asks that the father’s time be supervised. She gives reasons.

c. So the father’s cross-motion asks that the mother’s time be supervised. But he gives no real reasons.

d. While symmetrical allegations may be emotionally satisfying, more often than not they come across as transparently strategic and vindictive.

e. You can defend an allegation without having to repeat the same allegation.

[27] A party who seeks to reduce normal parenting time will usually be required to provide a justification for taking such a position.

a. The greater the restriction sought, the more important it is to show why the restriction is necessary. M.A. v. J.D., 2003 CanLII 52807 (ON CJ), [2003] O.J. No. 2946 (OCJ); W.H.C. v. W.C.M.C. 2021 ONCJ 308 (OCJ); Liu v. Xie, 2021 ONSC 222 (SCJ); Docherty v. Catherwood, 2015 ONSC 5240 (SCJ).

b. The onus is on the parent seeking to limit parenting time to establish on a balance of probabilities that the restrictions are in the child’s best interest. An order for supervised parenting requires evidence of exceptional circumstances. Jennings v. Garrett, 2004 CanLII 17126; Ascani v. Keedi 2021 ONSC 4282 (SCJ).

[28] As it happens, after much discussion during submissions, ultimately both parties backed off on their requests that the other party’s time needed to be supervised.

[29] The father now proposes to suddenly change everything in Rachael’s life, seemingly with no awareness or regard for the impact of such upheaval on the child. He says eventually the parents should have equal time. But in the immediate future he wants the child to switch to his primary care.

a. Rachael has been living exclusively with her mother since she was two-and-a-half. The father now wants that to suddenly stop.

b. He wants her to lose the daily relationships and routines she is used to. The environment she is used to. The friends she is used to. The school she is used to.

c. If the father now wants more time with his daughter, that’s something that can and should be addressed. He could have addressed it long ago.

[30] To disturb the status quo there must be compelling evidence to show the welfare of the child would be in danger if the status quo is maintained. The evidence must clearly and unequivocally establish that the status quo is not in the child’s best interests. Miranda v. Miranda, 2013 ONSC 4704 (SCJ). The father has provided no such evidence.

[31] The father’s decision to unilaterally remove the child from school, without forewarning or agreement – and then propose that he would keep the child permanently and homeschool her – betrays an alarming sense of entitlement, selfishness and poor parental judgment. Self-help is to be discouraged, and certainly not rewarded. A parent who engages in self-help tactics for strategic purposes -- despite the best interests of the child -- will generally raise serious questions about their own parenting skills and judgment. Southorn v. Ree, 2019 ONSC 1298 (SCJ); McPhail v. McPhail, 2018 ONSC 735 (SCJ); C.C. v. I.C., 2021 ONSC 6471 (SCJ); Rifai v. Green, 2014 ONSC 1377 (SCJ); M.H.S. v. M.R. 2021 ONCJ 665 (OCJ).

[32] The father’s evidence included a cell phone video he took of a recent argument which ensued when the mother brought Rachael to his residence. The context is disputed:

a. She says he instructed her to bring the child.

b. He says she attended without invitation. He ordered her to leave.

c. They argued about it with each claiming the other was trying to set them up.

d. It’s bad enough that somehow this miscommunication arose, with Rachael getting caught in the middle.

e. Whatever the cause, the dispute could have ended quickly. The mother could have left. The father could have backed off and called the police if necessary. They could have spared the child – who has already been impacted by parental conflict -- from witnessing more unpleasantness.

f. The adults could have acted like adults.

g. But instead the father started video recording the confrontation on his cell phone. And – as always happens – as soon as one parent hit the “record” button, they both started playing to the camera. With their young daughter being the tragically captive audience.

h. The three-and-a-half minute video shows the mother holding a deeply anguished four-year-old in her arms, while the adults shout – back and forth...and back and forth -- each of them so preoccupied with creating electronic evidence that they completely ignored the child they pretend to be protecting.

i. The father thought creating a video would make the mother look bad. Instead, it made the cameraman look worse.

[33] Electronic recording of parenting exchanges and interactions is a growing trend which should be strongly discouraged. It puts the child in the middle. It exacerbates tensions and creates a heightened sense of potential or imminent conflict. It clearly demonstrates that the parent holding the camera is focussing more on the litigation than the emotional well-being of the child. Guadalaxara v. Viau, 2014 ONSC 545 (SCJ); Luke v. Luke, 2014 ONSC 422 (OCJ); K.M. v. J.R., 2022 ONSC 111 (SCJ).

[34] This court warned against these misguided home movies in Whidden v Ellwood, 2016 ONSC 6938(SCJ):

96 Parents in custody disputes really need to stop taking photographs and videos of one another during access exchanges.

d. They should stop pretending they're assisting the court by assembling important evidence.

e. The obvious reality is that taking videos is a strategic act of aggression and escalation. The situation never improves when people pull out cameras. Usually it gets worse. Indeed, often that appears to be the intention.

f. Access exchanges in high conflict files are already tough enough for children. Pointing a camera — or multiple cameras — at the interaction merely heightens the child's unease and worry that something bad is expected to happen. That someone they love is about to misbehave. That one parent is trying to get the other parent in trouble.

g. Videos recklessly and maliciously transform an ideally brief, benign transition into a horribly unhappy and frightening experience for the helpless child. The unpleasant confrontation may last only minutes. But the emotional devastation for the child can extend for hours, both before and after the exchange.

h. Talk about spoiling a happy moment. (Again, perhaps that's the intention.)

97 How do we stop this epidemic of smartphone nonsense in Family Court?

a. Presumably parents only take these videos because they think it will help them win their case. They think it will make the other parent look bad.

b. We need to make it clear to parents that taking videos is not likely to help you win your case. It's more likely to backfire. To cause the judge to worry about your parental judgment.

c. Because taking videos raises doubts about how a loving and caring parent could be so insensitive as to place an innocent child in the middle of a needlessly inflamed and volatile situation.

d. What message is the videographer conveying to the child? "Look how bad your father is!" "I'm going to record this so everyone will see what a horrible mother you have!" "Be careful, the parent you love can't be trusted!"

e. Perhaps the more cynical and prophetical message: "Showtime!"

f. Do children really need to receive such hurtful and destructive messages, at an already tragic time in their lives?

g. When parents routinely pull out their cameras, ready to "click" at the slightest false move -- like gunslingers squaring off at the O.K. Corral — are they doing it out of love for a child? Or hate?

h. No matter what image they hope to record, it can't be as harmful to the child as the fear and apprehension automatically instilled as soon as one parent points a camera at the other.

[35] Section 33.1 (2) of the CLRA addresses the importance of the parties protecting children from conflict related to the ongoing court case. It sets out that a party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding.

[36] A party’s failure to protect a child from conflict may be an important consideration in granting primary residence and decision-making responsibility to the other parent. Wiafe v. Aboakwa-Yeboah, 2021 ONCJ 201 (OCJ).

[37] The father categorically denies ever being violent or aggressive with the mother.

a. His lawyer suggests I should draw no inference from the many criminal charges against the father, because he’s going to be defending all of them. I agree that the existence of charges is not determinative. I make no presumption as to the eventual disposition of those charges and allegations.

b. But his lawyer goes one step further and suggests the sheer volume of charges against the father is evidence that the mother is manipulating the court system by making false complaints. That’s a curious and somewhat perverse bit of logic.

c. I reject the suggestion that the greater the number of charges against an accused, the less the complainant should be believed.

d. The criminal charges will be resolved in another setting.

[38] But I still have to address the many and significant allegations of violence by the father.

[39] In determining the best interests of a child, Section 24(3)(j) of the CLRA mandates that the court must specifically consider whether there has been any family violence -- and the impact of that violence on the child; and on the ability and willingness of any parties to care for and meet the needs of the child.

[40] Section 18(2) sets out an expansive definition of what constitutes family violence:

18(2) "Family violence"

For the purposes of the definition of "family violence" in subsection (1), the conduct need not constitute a criminal offence, and includes,

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property.

[41] With its expanded definition, family violence can take many forms.

a. Family violence can be insidious, and frequently involves coercive and controlling behaviors which can create an imbalance of power in a relationship.

b. Violence need not be physical. Emotional and psychological abuse can have a devastating impact on a child. B. v. W. 2022 ONSC 934 (SCJ).

c. Denigration of the other parent in front of the children has been found to fit within the definition of family violence: Ammar v. Smith, 2021 ONSC 3204 (SCJ); McIntosh v Baker, 2022 ONSC 4235 (SCJ); N.M. v. S.M., 2022 ONCJ 482 (OCJ).

d. Unwarranted calls to authorities, being the police and children’s aid societies can be psychological abuse. K.M. v. J.R., 2022 ONSC 111 (SCJ).

e. Threats of suicide can be domestic violence. J.D.M. v. S.J.C.M, 2021 NBQB 159.

f. A pattern of repeated infidelity coupled with lying, coercion, emotional manipulation and harassment around the infidelities" can, in some cases, qualify as "family violence". McBennett v. Danis (2021), 57 R.F.L. (8th) 1 (SCJ).

g. Surreptitious recordings, insults, unwarranted criticism about parenting and demanding to know whereabouts can constitute psychological abuse.

h. A parent who engages in alienation is engaging in emotional abuse towards the child. It is a form of family violence. S. v. A., 2021 ONSC 5976 (SCJ); Epshtein v. Verzberger-Epshtein, 2021 ONSC 7694 (SCJ); W.A.C. v. C.V.F., 2022 ONSC 2539 (SCJ).

[42] Section 24(4) sets out an additional list of best interests factors which the court must consider related to family violence.

24(4) Factors relating to family violence

In considering the impact of any family violence under clause (3)(j), the court shall take into account,

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

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

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

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

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

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

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

of the child; and

(h) any other relevant factor.

[43] In Barendregt v. Grebliunas 2022 SCC 22 the Supreme Court of Canada recently addressed the relevance of family violence in parenting determinations and stated:

a. Courts have increasingly recognized that any family violence or abuse may affect a child’s welfare and should be considered when determining a parenting order.

b. In relocation cases, have been significantly more likely to allow relocation applications where there has been a finding of abuse.

c. The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives.

d. Harm to children can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it.

e. Domestic violence allegations are notoriously difficult to prove. Family violence often takes place behind closed doors and may lack corroborating evidence. Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support.

f. The prospect of repeated or protracted may deter abuse survivors from coming forward. The evidence shows that most family violence goes unreported.

g. The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis: Section 16(3)(j) and (4). The Divorce Act broadly defines family violence in Section 2(1) to include any violent or threatening conduct, ranging from physical abuse to psychological and financial abuse. Courts must consider family violence and its impact on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child.

h. Because family violence may be a reason for the relocation and given the grave implications that any form of family violence poses for the positive development of children, this is an important factor in mobility cases.

[44] In response to the mother’s allegations, the father filed two letters, both dated October 24, 2022, from Hamilton CAS. The letters actually raise more concerns about him.

a. One of the letters explained that the family’s file was open from March 9, 2022 to May 12, 2022 due to concerns about the child having witnessed the father physically assaulting the mother; and risk of mental or emotional harm to the child. The letter specifically states that “Partner violence was verified.” This is inconsistent with the father’s assertion that he has never been violent and that CAS has never had any concerns about domestic violence in the family.

b. The other letter explained that the Society initiated an investigation on September 15, 2022, after it received complaints from both the father and an anonymous source regarding the child’s wellbeing while in the mother’s care. The letter stated that the Society concluded its investigation and “no concerns in relation to (the mother) have been verified.” The letter went on to say that the child did not report any concerns about the mother’s care. But the child told a Society worker about the father throwing things and there being conflict.

c. In that second letter the Society commented on the incident in which the father removed Rachael from school. “Due to concerns regarding this incident, the Society has verified risk that the child is likely to be emotionally harmed resulting from the child’s exposure to ongoing post separation caregiver conflict.”

[45] While the father denies he has ever been violent to the mother, I find her evidence on this and most topics to be credible and quite alarming.

[46] As an aside, a separate issue arose which relates to credibility but doesn’t specifically impact on the best interests of Rachael:

a. The father’s bail terms require that he reside with a specified surety.

b. The materials filed by both the father and Garceau clearly state the father is residing with Garceau and her four daughters.

c. While the father’s counsel tried to explain that the surety is also residing at that address, the clear language used by the father and Garceau suggests that no other person is living with them.

d. The mother says this is another example of the father lying and breaching his bail terms.

e. I make no formal determination as to whether the father is complying with that aspect of his bail terms. The presence or absence of the surety in the father’s household is not essential to the best interests analysis.

f. But it’s another example of a serious question arising about the father’s candor.

[47] As stated, CAS verified the child’s exposure to partner violence, and the child made troubling comments about the father’s behaviour – not the mother’s. The evidence satisfies me that there is reason to be concerned about the father’s anger control and aggressive behaviour.

[48] And while the father emphasizes that there is no allegation that he was ever violent to the child, the amendments to the legislation make it clear that this outmoded distinction lacks insight into the far-reaching consequences of children being exposed to violent or aggressive behaviour. The evidence is overwhelming that the father’s aggressive, impulsive and self-indulgent behaviours have caused the child to be exposed to inappropriate and emotionally upsetting situations.

[49] Both parties relate some of the escalation of conflict to the father’s relatively recent relationship with his partner Garceau – but in different ways.

a. The father says he and the mother were getting along relatively well until the mother became jealous of Garceau.

b. The mother says she was never jealous of Garceau or the father’s former partner. She says problems arose because Garceau started meddling and insisting that all communications had to be through her.

c. It sounds more like meddling than jealousy.

d. While Garceau insists she was just trying to help, she was hardly a “neutral” intermediary. To the contrary, she participated in the father’s effort to remove Rachael from school – and basically permanently take the child away from the mother.

[50] New partners should stay out of the fray in high conflict parenting disputes. And that goes for the mother’s boyfriend Lou as well.

a. The father says he is terrified for Rachael’s safety because the mother’s boyfriend Lou likes to kiss and cuddle his young daughter.

b. The mother says she doesn’t live with Lou and in any event he has never been inappropriate with her daughter.

c. The mother notes that Garceau boasts that she kisses and cuddles Rachael.

[51] In relation to Lou, the father has raised the spectre of “molestation” as a hot button topic with very little basis.

a. CAS has been repeatedly involved, with no suggestion whatsoever of anything inappropriate occurring in the mother’s household. The child has been interviewed, and disclosed nothing inappropriate while she is in the mother’s care.

b. There is no evidence that the mother has ever failed to protect the child from anyone (with the possible exception of the father himself).

c. There is no specific information about Lou to suggest he represents any danger.

d. The mother says Lou has never been inappropriate.

e. In this climate of mistrust, perhaps it would be best for all new partners to maintain better boundaries.

[52] With respect to decision-making, the father’s first choice is sole decision-making authority in his name. The evidence does not support this request.

a. Without any meaningful objection, the father has allowed the mother to make all decisions since the parties separated in April 2021 – and the mother has been consistently making good decisions.

b. In contrast, the father’s recently heightened anger and impulsivity have caused him to make some very bad decisions in the child’s life. His unilateral removal of Rachael from school, and his ill-conceived plan to permanently keep the child from the mother and homeschool her raise serious doubts about his insight and true intentions.

[53] The father’s second choice is equal decision-making or shared parenting.

[54] In order to grant joint or shared decision-making in some or all areas, there must be some evidence that despite their differences, the parents are able to communicate effectively in the areas under consideration for the sake of the child. Kaplanis v. Kaplanis 2005 CanLII 1625 (ON CA); Levesque v. Windsor, 2020 ONSC 5902(Div. Ct.); McBennett v Danis 2021 ONSC 3610 (SCJ); McIntosh v Baker, 2022 ONSC 4235 (SCJ).

[55] Mere evidence of some ability to communicate and cooperate is not enough. The court must examine the facts of each particular case to determine whether the parties’ ability to cooperate and communicate about issues relating to the child is sufficiently functional to support an order for shared decision-making. Berman v. Berman, 2017 ONCA 905 (ON CA); McBennett v Danis 2021 ONSC 3610 (SCJ).

[56] Joint decision-making requires a basic level of respect and civility between the parents so that meaningful communication regarding the children can occur. Both parents must have the opportunity and comfort level to express their views and have meaningful input into the decisions that have to be taken. But effective co-parenting cannot occur in an environment of verbal abuse or intimidation. No parent should be exposed to the bullying of a former spouse in the name of shared parenting. Cameron v. MacGillivray, 2005 CarswellOnt 8095 (SCJ); Brown v. Brown, 2021 ONSC 1753 (SCJ)

[57] At the very least mutual trust and respect are basic elements required for shared decision-making to work effectively. L.B. v. P.E. 2021 ONCJ 114; Jacobs & Coulombe v. Blair & Amyotte, 2022 ONSC 3159 (SCJ); S.W.-S. v. R.S., 2022 ONCJ 483 (OCJ).

[58] In the wrong family circumstances, a joint decision-making order can perpetuate hostilities, indecision, and power struggles. Children -- particularly children already exposed to the upset of family breakdown -- look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully. Izyuk v. Bilousov, 2011 ONSC 6451, 2011 CarswellOnt 12097 (SCJ); Seyyad v. Pathan, 2022 ONCJ 501 (OCJ).

[59] In S.S. v. S.K., 2013 ONCJ 432 (OCJ) Sherr J. stated that courts should assess the dynamics of a family when determining if a joint decision-making responsibility order is appropriate. Particularly, the court should examine if the granting of such an order is:

a) more or less likely to de-escalate or inflame the parents' conflict;

b) more or less likely to expose the child to parental conflict; and,

c) whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders for the purpose of asserting control over their former spouse and children tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a shared parenting order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.

[60] Given the hostility and mistrust between these parties; the father’s unilateral decision-making; the serious allegations of family violence; and the fact that there continues to be criminal court restrictions which greatly limit the ability of the parties to communicate with one another – this is not a case for joint or shared decision-making. The evidence satisfies me that it is in the best interests of the child for the mother to continue to have sole decision-making authority on an interim basis.

[61] With respect to the allocation of parenting time, again the father’s first choice is that the child reside solely or primarily with him.

a. Part of his justification is his belief that the child doesn’t have a proper bed or bedroom at the mother’s residence. Again, this is a curious allegation to raise 18 months post-separation.

b. In any event, I accept the mother’s assurance that the child has her own bed and sleeping arrangements.

[62] As discussed, the father’s primary residence proposal would entail a significant – and in my view unwarranted – disruption of a status quo which has been working very well for Rachael.

[63] The father’s second choice is equal time – which is also significantly different from what the child is used to.

[64] Pursuant to Section 24(6) of the CLRA, courts allocating parenting time are required to adhere to the principle that “a child should have as much time with each spouse as is consistent with the best interests of the child”. Knapp v. Knapp, 2021 ONCA 305. (ON CA); O'Brien v. Chuluunbaatar 2021 ONCA 555 (ON CA).

a. This provision does not override the best interests analysis. Rather, it is part of the best interests analysis.

b. There is no presumption of equal time-sharing of children after parents separate. Bembenek v. Bembenek 2019 ONSC 4050 (SCJ); K.M. v. J.R., 2022 ONSC 111 (SCJ); B. v. W. 2022 ONSC 934 (SCJ); Bressi v. Skinulis et al, 2021 ONSC 4874 (SCJ).

c. The most appropriate allocation of time in any given situation will depend on many factors including the child’s age; temperament; stage of development; the relevant schedules and commitments of the child and each parent; and any other considerations relevant to the determination of the child’s best interests. The parenting schedule must accord with the child’s best interests. McBennett v Danis 2021 ONSC 3610 (SCJ); Morrison v. Harder 2021 ONSC 5107 (SCJ); Ammar v. Smith, 2021 ONSC 3204 (SCJ); W.C. v. W.C. 2022 ONCJ 254 (OCJ).

d. As with joint decision-making, a higher degree of cooperation and mutual respect is needed to make an equal parenting arrangement work effectively. Parents need to be able to coordinate medical and health issues concerning the child. They need to be able to coordinate extra-curricular activities that will be important for her. There should be some level of consistency in the two homes if an equal parenting schedule is going to work. J.J.G. v. J.D.S., 2017 ONCJ 586 (OCJ).

e. This is a child-focussed approach with an important goal of achieving as much parenting time as possible with each parent, so long as it is consistent with the child’s best interests. It may end up being equal time. It may end up being some other division of time. Each family is different, and the principle is a general guide set out to benefit children. Knapp v. Knapp, 2021 ONCA 305. (ON CA); R.F. v. J.W. 2021 ONCA 528 (ON CA).

f. The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. Kirichenko v. Kirichenko 2021 ONSC 2833 (SCJ).

g. A young child with attachments to both parents needs sufficient contact with both, without prolonged separations to maintain a meaningful and close relationship with them. Van Den Driessche v. Van Den Driessche, 2011 CarswellMan 255 (Q.B. Family); Wilson v. Wilson, 2015 ONSC 479 (SCJ). But in high conflict situations, exchanges between parental households are frequently the source of intensified stress and anxiety for children. In those circumstances frequency of contact may have to give way to the need to reduce the number of exchanges – to reduce opportunities for the child to be exposed to unpleasantness, tension, alienation, schedule disruption and inconsistent parenting styles.

h. While maximizing contact is important, it is not an unbridled objective. If the evidence indicates that increased parenting time with a parent would not in fact support the child’s best interests, it should not be ordered. McBennett v Danis 2021 ONSC 3610 (SCJ); Young v. Young, 1993 CanLII 34 (SCC); Gordon v. Goertz, 1996 CanLII 191 (SCC); B.V. v. P.V., 2012 ONCA 262 (ON CA.); Rigillo v. Rigillo, 2019 ONCA 548 (ON CA).

[65] I find that it is in the best interests of Rachael to remain primarily in the care of the mother. This arrangement and routine has been working very well for the child.

[66] At the Urgent Case Conference on October 25, 2022, the parties consented to a without prejudice temporary-temporary order which included the father having alternate weekends from Friday at 5:00 p.m. until Sunday at 8:30 p.m.

a. While I realize this was absolutely without prejudice, I am of the view that alternate weekends should continue to be the core of the father’s time with the child.

b. The mother does not currently have a work schedule.

c. The father says his work schedule is completely flexible.

d. The child has a weekday school schedule.

e. Weekends are equally important for both parents because of the expanded opportunities for family activities.

[67] The father should have additional time between alternate weekends, because for a four-year-old child frequency of contact is important. To the extent possible, exchanges should be at the child’s school, to reduce the need for personal contact between the parties (or other intermediaries while there are criminal court restrictions with respect to their contact).

[68] The parties already consented to an order requesting the involvement of the Office of the Children’s Lawyer. Hopefully a section 112 investigation will result.

[69] In her original motion the mother requested a police enforcement order, although during submissions she did not appear to be pursuing this. I am not going to make a police enforcement order because the parties now clearly understand the expectations of the court, and the consequences for self-help. Rachael has already had enough exposure to police. If either party creates a situation in which the child is again exposed to police involvement, they run the risk of seriously eroding their credibility as a responsible and insightful parent.

[70] Temporary order:

a. The child Rachael shall reside primarily with the Applicant mother who shall have sole decision-making authority with respect to the child.

b. The mother shall keep the father informed of any major issues or developments in the child’s life.

c. Prior to implementing any non-emergency issue in the child’s life, the mother shall advise the father of the issue and her proposal to deal with the issue. Unless time does not permit, the father shall be allowed 7 days to respond with his comments and any proposal he may have. If, however, the parties are unable to reach agreement on an issue, the mother shall have the final decision-making authority.

d. The father shall be entitled to communicate directly with all third-party professionals, agencies and service-providers in the child’s life including educators, medical personnel, and recreational and social agencies. The mother shall keep the father fully informed as to the identity of all such service providers. The father shall not arrange or initiate the child’s involvement with any new agencies, organizations or service providers, without the mother’s consent. However, neither party shall have any restriction on their ability to share religious observance with the child, during times that the child is in their care respectively.

e. The father shall have the following parenting time with the child:

i. Commencing December 2, 2022, alternate weekends from Friday pick up from school at the end of the school day (or 5:00 p.m. if there is no school) to Monday drop-off at school (or 8:30 a.m. if, for any reason, the child will not be attending school that day).

ii. On the Thursday following the father’s weekend, and on the Monday preceding the father’s weekend – on each of those days from pick up from school at the end of the school day (or 5:00 p.m. if there is no school) to the following morning drop-off at school (or 8:30 a.m. if, for any reason, the child will not be attending school that day).

iii. During the two-week Christmas school break, the father shall have an extra 48 hour period on each of the first and second weeks of the break. The mother shall select the 48 hour period during the week that Christmas Day falls on. The father shall select the 48 hour period during the other week. The 48 hours cannot include a weekend. Each party shall notify the other of their selection at least 10 days in advance.

f. Each party shall have at least 15 minutes of electronic parenting time with the child (telephone, Facetime, etc.) on the evening of any second consecutive sleepover at the other parent’s residence. In the absence of any other agreement, this shall be at 7:00 p.m., to be initiated by the parent who has the child.

g. Exchanges shall occur at the child’s school whenever possible. If school is not available as an exchange location, exchanges shall occur at a mutually agreed location (not to include a police station). In the absence of any other agreement, the exchanges shall be at the Tim Horton’s located on Parkdale Avenue North between Nikola Tesla Blvd. and Barton Street, in Hamilton.

h. The parties may communicate in writing only, by text or email – but this direct communication may only occur so long as there is no criminal court restriction which prevents such contact. To the extent that criminal court restrictions occur, communication shall be through counsel or other intermediaries.

i. Both parties shall execute consents for the release to both parties of police records and child protection records relating to themselves or Rachael.

j. Both parties shall ensure that no new partner or acquaintance has any physical contact with the child, including displays of affection or discipline.

[71] Neither party raised support or related claims in their cross-motions, so I have not addressed them in this temporary order. Either party may proceed with such motions.

[72] If the parties wish to address any residual issues other than costs, they should arrange a time for the matter to be spoken to.

[73] If only costs remain to be addressed, written submissions shall be filed on the following schedule:

a. Applicant’s submissions to be served and filed within 14 days of the release of this endorsement. Maximum of three pages, plus any offers, a bill of costs, and case law.

b. Respondent’s submissions to be served and filed within 10 days of receipt of Applicant’s submissions. Maximum of three pages, plus any offers, a bill of costs, and case law.

c. Any reply submissions (maximum two pages) by Applicant to be served and filed within 7 days of receipt of the Respondent’s submissions.

Pazaratz J.

Released: November 22, 2022

COURT FILE NO.: 1086/22

DATE: 2022-11-22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Carina Teresa Dayboll

Applicant

• and -

Rachhpal Singh Binag

Respondent

REASONS FOR JUDGMENT

Pazaratz J.

Released: November 22, 2022