COURT FILE NO.: 19-2064-1
DATE: 2022/12/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
E.M.
Applicant
– and –
C.V.
Respondent
Deanna Paolucci, for the Applicant
Richard Bowles, for the Respondent
HEARD: November 28-December 2, 5-7,9, 2022
REASONS FOR DECISION
Carter J.
OVERVIEW
[1] The Respondent, C.V. (“the Father”), has brought a motion to change provisions of the respective Orders of Justices Mackinnon, dated January 24, 2021 (“the Mackinnon Order”) and Parfett, dated April 6, 2021 (“the Parfett Order”). It is opposed by the Applicant, E.M. (“the Mother”).
[2] The parties are the parents of L.V. (age 7) and V.V. (age 4).
[3] The primary issues on the motion are parenting time and decision making, and in particular whether the Mother should be able to return to Australia with the children as had been contemplated in the Mackinnon Order. The evidence was heard over 12 days, ending on December 9, 2022.
[4] The Mother has a job to return to in Australia, but it is only available to her until December 31, 2022. Given that there is considerable urgency to this matter, I informed the parties that I would render a decision as quickly as possible. As a result, these reasons are less fulsome than I otherwise might have done. Despite the tight time frames, I have carefully reviewed all of the evidence and considered all the submissions of the parties.
PROCEDURAL HISTORY
[5] On January 24, 2021, the parties entered into a consent order pursuant to filed Minutes of Settlement. The Mackinnon Order is extensive and provides, among other things:
a) The parties shall have joint custody of the children.
b) The parties shall share decision-making for the children.
c) The children shall attend school in the catchment area in which the Mother resides.
d) The Mother shall maintain the original copies of the children’s health cards and passports.
e) The parties shall remain resident within 25 km of the Mother’s current residence until at least May 11, 2022.
f) The Mother shall return to Australia no earlier than May 4, 2022 and no later than May 11, 2022.
g) The children shall reside with the Father from the date of the Mother’s return to Australia (no earlier than May 4, 2022) until July 11, 2022.
h) The Father shall accompany the children to Australia no later than July 11, 2022.
i) The children shall reside primarily with the Mother once they are returned to Australia in July 2022
j) The Father’s parenting time with the children, after July 2022, shall include school vacations as set out in detail in the Order.
k) The Father’s parenting time with the children between January 24, 2021 and March 1, 2021 provided for two overnights per week as well as two additional evening visits.
l) The Father’s parenting time between March 1, 2021 and the Respondent’s departure for Australia would be the subject of a 2 hour motion.
m) Until the Mother’s departure for Australia, and following the motion referred to above, the Father shall pay child support to the Applicant in the amount of $1,180 per month.
n) Following the motion referred to above, the Father shall pay to the Applicant spousal support in the amount of $1,380 per month.
o) Spousal support shall cease once the Mother returns to Australia.
p) A change to the order can only happen on consent, through a court order or arbitration, or, after July 2022, in Australia.
[6] On April 6, 2021, following a contested motion, Justice Parfett issued an order providing that the parties share residential time for the children on a 2-2-5-5 schedule commencing April 12, 2021.
[7] On March 3, 2022, the Father brought a procedural motion before Justice Engelking seeking leave to bring a motion on an urgent basis to alter or stay the parenting time provisions of the Mackinnon and Parfett Orders. Justice Engelking did not grant the Father’s request for an urgent motion on the basis that the test of urgency had not been met. However, Justice Engelking also noted that it would be helpful to schedule a motion date for the Father’s interim motion as the orders remain operative in relation to the Mother’s move to Australia.
[8] The Father’s motion for a stay was heard before Justice Muszynski on June 30, 2022. It was held that, since there was no appeal pending, the Mother’s motion was more properly brought as an interim motion to vary a final order as opposed to a motion to stay. She ultimately granted an interim variation order preventing the Mother from moving to Australia and setting out a parenting schedule pending this hearing. Specifically, Justice Muszynski determined that the Mother’s parenting time with the children be supervised.
[9] The concerns resulting in the order for supervised parenting time included the Mother’s unsubstantiated allegations against the Father – including reports to the police and hospital visits with the children and the Mother’s unwillingness to accept concerns identified by CAS.
[10] A further order was made that the parties return before her to revisit the parenting schedule prior to September 2, 2022. The matter was heard on August 10, 2022 and a decision released on August 23. Justice Muszynski held that supervised parenting time between the Mother and the children was to continue. Some minor changes were made with respect to how and when that supervised access would occur.
POSITION OF THE PARTIES
Father’s Position
[11] The Father argues that there has been a material change in circumstances for a number of reasons: the Mother’s campaign to vilify the Father, the Mother’s mental health challenges coming to the fore, the Mother’s continued reporting of concerns about abuse, the intervention of the CAS and the Mother’s coaching of V.V..
[12] He further submits that it would be in the best interests of the children for them to be primarily in his care, with the Mother having unsupervised parenting time according to a graduated formula. According to the Father, the children have been in his care since May 2022, they are stable, there have been dramatic improvements in the behaviour of L.V., he has a clear plan for their care moving forward and has the necessary supports to ensure it is successful. Of critical importance, the Mother continues to believe the Father is either neglectful or is grooming the children for a sexual purpose. Given these beliefs, she will not foster their relationship with him.
Mother’s Position
[13] The Mother concedes that there has been a material change in circumstances but argues that it is limited to a breakdown in trust between the parties. It is submitted that the CAS did not investigate matters properly and were biased; in other words, that their concerns were overblown. In any event, they have closed the file so that there should now be a return to split parenting.
[14] The Mother believes it would be in the best interests of the children to reside with her in Australia. There is a history of her being the primary parent prior to May 2022. She has a strong relationship with the children, has a solid plan of care and a good support network in Australia. The evidence shows she has been more involved and makes better decisions with respect to the children’s medical, educational and extracurricular needs than the Father. The Father is unreasonably preventing her from seeing the children and has engaged in self-help. There is also a history of family violence with regards to the surreptitious recording of sexual activity which led to the voyeurism charge and the Father’s controlling behaviour with respect to finances.
THE APPLICABLE LEGISLATION
[15] It is not clear under which legislation the Mackinnon Order was made but the Parfett Order was made pursuant to the Divorce Act, R.S.C. 1985, c.3 (2nd Supp), as am. However, both parties agree that as a divorce has not yet been issued, the orders should have been made pursuant to the Family Law Act, R.S.O. 1990, c.F.3, as am., and Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am. Given this, I must interpret the relevant provisions of the two orders as having been made pursuant to the FLA and CLRA and there will be an order nunc pro tunc to that effect (see Sauve v. Watson, 2021 ONSC 4188).
MATERIAL CHANGE IN CIRCUMSTANCES
[16] The test for determining whether there has been a material change of circumstances has three components:
a. a change in the condition, means, needs or circumstances of the child and/or or the ability of the parents to meet those needs;
b. the change must materially affect the child; and
c. the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order (N.L. v. R.R.M., 2016 ONCA 915, 88 R.F.L. (7th) 19, at para. 29.)
[17] It is only if a material change in circumstances has been established that the court then embarks on a fresh inquiry into the best interests of the child.
[18] I find that that there has been a material change of circumstances for two reasons.
[19] The first change is that the Mother’s behaviour post order was sufficiently concerning that the Children’s Aid Society (“CAS”) felt the need to address it.
[20] The Father submits that the Mother continued to make allegations about him that the Mackinnon Order was designed to stop. Paragraph 16 of the order specifically requires the parties each to swear an affidavit attesting that they would not make or continue any complaints regarding the other’s conduct up to the date of the swearing of the affidavit.
[21] By way of background, the Father was charged with voyeurism for surreptitiously filming sexual activity with the Mother. The Father ultimately pleaded guilty to the charge and received an absolute discharge. The Mother made additional criminal complaints to authorities in both Canada and Australia. No charges resulted from those accusations.
[22] Although the Mother raised the issue of the voyeurism charge to a school board social worker in February 2021 (and the other criminal complaints to various parties on separate occasions), it is not clear that she was actually making “complaints”. Furthermore, the Mother testified that she understood paragraph 16 to mean that she could not make a “complaint” to the police. Given the ambiguity in the wording of the provision, that is not an unreasonable interpretation. There is no evidence that she directly made a complaint about these matters to the police (as opposed to having raised them as context). In my view, this would not amount to material change of circumstances within the meaning of the jurisprudence.
[23] However, the Mother began to make new allegations about the Father to a number of different organizations. It is these new allegations that resulted in the CAS intervening more directly to address child protection concerns. In particular, the concerns related to the risk that the children were likely to be emotionally harmed resulting from their exposure to on-going, post-separation caregiver conflict. The concerns were verified by the CAS.
[24] Josephine Parke is a CAS child protection worker who oversaw the file from November 2021 until it was closed in October 2022. She testified that she sent an email to the Father on January 24, 2022 explaining the reason for the CAS involvement. It reads:
On July 22, 2021, [the Mother] sent a video to the CAS where [V.V.] is saying she had been smacked by “Daddy and it hurt”. In the video [L.V.] can be heard saying that “Daddy did not smack her”. This was not confirmed but [the Mother] continued to make a lot of reports about [the Father] hurting the kids or not supervising them resulting in them getting hurt. None of these concerns were verified however the CAS did confirm that there are lots of times when mum will coach [V.V] and [L.V.] to say things about dad and that mum will often tell them that daddy does bad things to mom like not letting her go back to Australia, stealing stuff, and telling them that daddy is holding them hostage. The kids say and mum agrees that they see mum crying a lot because of this.
There have also been multiple calls and reports by [the Mother] to CAS, doctors, police, school and other professionals resulting in the children have been interviewed many times. None of the professionals have confirmed neglect or intentional harm to the children.
[25] The Father is referred to as the protective parent in a note to file dated February 2, 2022. Ms. Parke testified that the term is not contained in the legislation but refers to a parent who is aware that the children are in distress and is taking steps to correct the situation. In particular, the Father was taking steps to ensure the children were not exposed to the worries articulated by the CAS.
[26] In a letter dated February 17, 2022 to both parties, Ms. Parke noted the CAS concern that the Mother appeared to disagree with the necessity of CAS involvement and that this had impacted on their ability to move forward with establishing appropriate services and support for the children. She then wrote:
As you are aware, an investigation of concerns brought to the Society’s attention in July 2021 concluded there was no maltreatment of your Children by [the Father]. Ottawa Police Services and the Children’s Hospital of Eastern Ontario concluded the same. Recognizing that post- separation conflict was impacting on your Children, your file was transferred for On-going Services. Prior to Christmas 2021, I forwarded both of you a copy of a proposed Plan of Service and sought your feedback. Both of you provided commentary but [the Mother] requested significant changes that the Society could not accept. While [the Father] has now signed the Plan, [the Mother] has refused. As per protocol, consents were also requested so that sharing of information with third parties could occur. [The Father] has signed all the required documents. [The Mother] initially refused or requested unrealistic time frames, but then reluctantly agreed. Her delays have caused issues having the appropriate services provided to the Children or contact being made with other professionals.
At this time, the Society is concerned that [the Mother] continues to believe the Children are being abused and neglected while in [the Father’s] care, despite there being no information that would suggest this has or continues to happen. The Society is very worried that the impact on the Children’s emotional well-being is heightened by [the Mother] and that [the Mother] herself is struggling with her ability to parent the Children, given that she has recently advised that she has little/no ability to facilitate the transition from her home to school or to the father’s home. The Society does believe that [the Mother] is struggling with managing the Children’s behaviours and the emotional support for the Children is not forthcoming from the mother at this time. The Society further opines that [the Mother] has struggled with worries around the Children when they are with their father and these worries have been transferred to the Children who have then acted out in various ways. The Children are clearly impacted by what is going on with their Parents. [The Mother] has recently advised me that after the Children return to Australia, their behaviours should resolve because they will not have the same number of transitions to deal with. The Society does not agree with this assessment as the Children’s emotional needs will not have been addressed. At this time, the Society is very concerned with the amount of unsupervised parenting time that [the Mother] with her Children given she does not seem to accept the Society’s worries or accept some of the professionals’ feedback.
[27] Ms. Parke confirmed in her testimony that this letter accurately reflected the CAS position at the time.
[28] The CAS records were entered as exhibits at trial on the agreement of the parties and on the basis that they were business records. In any event, Ms. Parke was taken through many of the entries during her examination in chief. Suffice it to say that they clearly support the position of the CAS as set out in the email of January 24th and letter of February 17th.
[29] The Mother did eventually sign an ongoing service plan agreement on February 26, 2022.
[30] As per the terms of the Mackinnon Order, the children entered into the Father’s full-time care on May 11, 2022.
[31] An update on the file was provided to the parties on June 16, 2022. Ms. Parke testified that the CAS continued to have concerns that the children could still be impacted by the Mother’s actions. As noted in the letter, a review of the file suggested that at least once a month since the Agreement was signed there has been an incident whereby the Mother has alleged child protection concerns about the Father which were unsubstantiated. It was further noted that the CAS had continuing worries about the negative treatment by the Mother towards the Father without apparent foundation.
[32] Ms. Parke testified that she was having significant challenges making any progress with the Mother. On the advice of a supervisor, she arranged for two sessions of mediation on June 23 and July 26. The mediation did not result in any meaningful changes.
[33] As previously noted, Justice Muszynski released a decision on June 30, 2022 ordering that the children’s primary residence be with the Father and that the Mother have limited supervised access with the children.
[34] An incident occurred on July 7, 2022. The Mother was to have access that day, but the Father would not approve a supervisor. The Mother called the police and drove to near the Father’s home with a neighbour. Upon seeing [L.V.], she exited the vehicle and took hold of him. Portions of what transpired next were filmed by the Father. Despite the Father repeatedly asking her to return [L.V.], she keeps hold of him as he squirms. He is visibly upset, but also expresses a desire to visit with the Mother. He is clearly conflicted. While the Mother testified that she regretted getting out of the vehicle, it is not clear to me that she understands how her actions (however well intentioned in the sense that she clearly missed her children) could have negatively affected the children. This is confirmed by the fact that she instructed the police to attend the residence and speak to the Father shortly thereafter. CAS concerns about the incident are documented in the records.
[35] A new service plan was entered into on July 15, 2022. One of the goals was to have the Father facilitate regular FaceTime calls between the Mother and the children as the CAS was concerned that without regular contact with their Mother, the children may believe she does not want them around or is not interested in their life. Another goal was to have a child protection worker meet a minimum of once monthly in the home of the caregiver where the children were residing. The CAS was worried that if the Mother continued to believe that the Father could not be trusted to properly care for the children, she would continue to make calls to professionals or take photos of the children to send to professionals so she can show them that the Father is doing something wrong when he is caring for the children, and the children would continue to be interviewed and examined which may cause them to not trust professionals or not want to share with people when someone is actually hurting them.
[36] An update to the parties was again provided on August 4, 2022. Ms. Parke noted that some progress with respect to the original service plan had occurred. The Mother had not taken the children to CHEO to be examined since September 1, 2021. Crossroads intensive in-home support began, and the Mother was offered one on one weekly contact with a Crossroad’s Worker. The Mother reported continuing attendance with her psychiatrist and that, with medication, her moods had improved. Nevertheless, it was determined that there continued to be worries necessitating the new service plan.
[37] The Mother submits that I should discount the concerns of the CAS; that Ms. Parke did not conduct a proper investigation and was biased against the Mother.
[38] I do not agree.
[39] I find that Ms. Parke was a credible and reliable witness. She was not seriously challenged in cross-examination. She was adamant that she was not biased against the Mother and that all the actions she took were done in the interests of the children. I accept her evidence.
[40] Furthermore, the parties agreed that the medical records could be entered as exhibits and relied on by the Court. The records corroborate the opinion of Ms. Parke that none of the professionals have confirmed neglect or intentional harm to the children. No evidence was called to challenge the findings of those professionals.
[41] The Mother further submits that by bringing the children into seek medical treatment she was simply doing what any good parent would do in the circumstances. If these were a few isolated visits, without more, I might agree. However, the context is important. In many, if not most of the visits, the mother is either implicitly or explicitly alleging some form of either abuse or neglect by the Father. In other words, the visits were not simply about seeking treatment for the children. Furthermore, the sheer volume of either visits or contacts with medical professionals weighs against any finding that the Mother was simply doing what any other responsible parent would do. The potential impact on the children of the frequency of these medical visits is noted both by the CAS and the report of Dr. Michelle Ward on February 25, 2022. Finally, the CAS was not simply concerned about the medical visits. Frequent complaints by the Mother to the CAS and the police (well documented) were also part of the reason for the CAS involvement.
[42] The Mother further argues that even if there initially was a material change in circumstances as a result of the CAS intervention it no longer exists because the CAS has closed its file and has no concerns about the Mother’s parenting.
[43] The CAS closed the file in October 2022. In the closing letter, Ms. Parke notes that there is disagreement between the parties as to whether the safety goals in the service agreement had been met. The Society’s position was that the majority of the requirements of the service plan had been sufficiently met to close the case. In cross-examination Ms. Parke testified that the fact the Mother only had supervised access did not affect the decision to close the file but the fact that the children were in the Father’s care and that the Mother had limited time did. The children were stable, there were no outstanding child protection concerns and contact concerns could be dealt with in Family Court.
[44] The Mother submits that in the closing assessment both parents were noted as “adequately parents and protects child.” The meaning of this aspect of the assessment was not explored in cross-examination. At no point in either the closing letter or in her evidence, did Ms. Parke state she no longer has concerns about the Mother’s parenting. The clear impression I had is that the Society felt able to close the file because the children were in the Father’s care and stable and the matter would be dealt with in Family Court. Ms. Parke testified that when she wrote in the letter that “any outstanding issues with respect to parenting of your children are properly served by the current Family Court process” she was referring to outstanding issues with respect to the interaction between the Mother and the children and any conflict that continued to impact the children. The reality of the situation is that since the end of June 2022 there has been a court order in place giving the Mother only limited supervised access with the children. Given the limited contact, the concerns of the CAS are no longer as pressing.
[45] Considering the reasons for closing the CAS file, I conclude there has not been a return to the situation as it was prior to the Mackinnon Order such that I might be able to find there is no longer a material change in circumstance.
[46] At that time of the Mackinnon Order, the CAS had not raised concerns about the Mother’s conduct, much less stepped in to address any concerns. The move to Australia and the parenting time was agreed to by the parties in that context. The landscape has significantly changed since then. These are not minor changes. Importantly, they go directly to the well being of the children.
[47] The second material change in circumstances is the one raised by the Mother. Although she has framed it as an issue of trust, it can more appropriately be labelled as an issue of communication with respect to decision making. The Mother says that the Father has unreasonably refused to provide his consent on key medical (for instances a psycho-educational assessment with regards to ADHD for L.V.), educational, child-care, and extracurricular activity decisions. The Father alleges that the Mother frequently tries to, in effect, unilaterally make these decisions without his consent. The sheer volume of Our Family Wizard messages that have been provided to me corroborates the serious difficulty the parties have had since January 2021 in making joint decisions. I conclude that there has been a material change on the issue of joint decision making.
BEST INTERESTS OF THE CHILDREN
Legal Principles
[48] If the threshold condition of a material change in circumstances is satisfied, the court must then embark upon an analysis of the parenting arrangement that is in the child’s best interests, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them. In carrying out this task, the court must also take into consideration the factors set out in section 24 of the CLRA. The court should consider the matter afresh, without defaulting to the existing arrangement. Both parties bear the evidentiary onus at the second stage of the analysis of demonstrating where the best interests of the child lie, and there is no legal presumption in favour of maintaining the arrangements (Roloson v. Clyde, 2017 ONSC 3642 at para. 52)
[49] The factors that the court is required to consider in carrying out the best interests analysis are set out in sections 24(2) to (5) of the CLRA as follows:
Best interests of the child
24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.
Primary consideration
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.
Factors relating to family violence
(4) 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. 2020, c. 25, Sched. 1, s. 6.
Past conduct
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. 2020, c.25, Sched. 1, s. 6.
[50] The child’s best interests are not merely “paramount” – they are the only consideration in this analysis (Mattina v. Mattina, 2018 ONCA 641). 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). No one factor in the statutory definition of a child’s best interests is given statutory preeminence (Wilson v. Wilson, 2015 ONSC 479).
Assessment of the Evidence
[51] I am required to determine the best interests of the children based on the evidence adduced on this motion. In addition to a significant number of documents (including CAS, medical and educational documents), both parties called viva voce evidence. Not surprisingly, the Father and the Mother were the key witnesses. Although there is much disagreement between them, certain important facts are not actually in dispute:
a. The Father stated he wished to end the relationship 10 days after the Mother and the children moved to Canada from Australia;
b. The Father surreptitiously recorded sexual activity with the Mother. He was charged with voyeurism, plead guilty and received an absolute discharge;
c. The Father’s parenting time was limited as a result of the charges;
d. During a number of the exchanges with the children, the Father wore a Halloween costume that caused the Mother concern;
e. The parties agreed to the terms of the Mackinnon Order;
f. After the Parfett Order, the parties had 50-50 parenting time;
g. The Mother had contact with various authorities, including the CAS, the police and medical professionals, on certain dates. Her complaints and/or concerns are documented in the records.
h. The parties had disagreements with respect to certain parenting issues. For instance, the Mother believes Lukas has ADHD and should be treated for it. The Father does not accept the initial diagnosis and believes L.V. does not have ADHD.
[52] To the extent that there are differences between them as to what actually occurred (as opposed to the reasons for what occurred or the effect of those occurrences), I prefer the evidence of the Father. He testified in a straightforward manner, was responsive to questioning (even if a little long winded at times), gave no prior inconsistent statements and was not inconsistent with any external objective evidence. There was nothing implausible about his testimony.
[53] The Mother, on the other hand, was a problematic witness at times. She frequently gave answers that were not responsive to the questions being asked, even after being asked multiple times. Court intervention was required on a number of occasions to ensure she answered the questions. Furthermore, while both parties had negative things to say about one another, the Mother attempted to paint the Father in a negative light repeatedly, even when it was not in direct response to the questions. For instance, when asked about the approval of Mackenzie Jones as a supervisor, the Mother gratuitously implied that the Father only approved her because she was young and attractive.
[54] In addition, the Mother refused to concede points she had previously given in evidence under oath. For example, in cross-examination it was suggested that she believed it was in the best interests of the children for the parents to be on the other side of the world from each other and have as little interaction with one. She refused to answer the question directly on a number of occasions, even when the Court asked her to provide a yes or no answer. When it was put to her that she had stated that in an affidavit of August 26, 2022 she refused to acknowledge it, saying that they didn’t have to necessarily be on the other side of the planet but there should be parallel parenting.
[55] Finally, on at least one occasion, her evidence was contradicted by documentary evidence which I find to be reliable. I will return to this point further in the reasons.
Allegations of Neglect, Abuse and Grooming
[56] Before turning to the factors in s. 24 of the CLRA, I will address the issue of the Mother’s allegations of abuse, grooming and neglect. I do so at the outset because they impact my assessment of a number of the factors as they relate to parenting time and decision making.
[57] A review of the CAS, medical and police records clearly demonstrates that the Mother had a concern that the Father was abusive, neglectful or both with respect to the children. The Father says this was part of a campaign to vilify him. I am unable to determine that this frequent reporting was designed to attack the Father as opposed to the Mother believing it was necessary to protect the children. What is important at this stage, however, is whether there is any basis to the allegations and whether the Mother continues to hold these concerns.
[58] On the former point, I find that there is no basis to the allegations. While child abuse and neglect are pernicious and may remain undetected, it is difficult to believe that given the sheer number of complaints made and the repeated involvement of organizations sensitive to these issues (the CAS, the police, the Child and Youth Protection Program at CHEO) that they would have gone unnoticed. In fact, rather than having concerns about the Father, the CAS was worried about the amount of unsupervised time the Mother was having with the children in light of her behaviour.
[59] In addition, I have the evidence of the Father. He was on the witness stand for more than three days. As previously noted, I found him to be a credible witness. The allegations of abuse and grooming were never put to him directly in cross-examination (although there was an implicit suggestion with respect to neglect). In emotional testimony, he denied that he has ever physically or sexually abused his children. The very notion of grooming them for a sexual purpose he found repugnant. I unequivocally accept his evidence in this regard.
[60] The question then becomes whether the Mother continues to believe the Father is abusive and neglectful towards the children despite none of these concerns ever having been verified.
[61] Dr. Mohammed Khaleel is the Mother’s psychiatrist. He was called to testify with respect to the Mother’s mental health. In addition, his records were entered as an exhibit. The parties have agreed that I can use the contents of those records for proof of what the Mother said.
[62] There is a note on the file of a crisis call that occurred on August 30, 2022. In it is written the following: “talks about sexual and physical abuse to her child, most probably by her husband.” Dr. Khaleel does not have an independent recollection of the conversation but agreed in cross-examination that he would not have made that up and agreed that the Mother definitely said that.
[63] When asked about this conversation in cross-examination, the Mother was evasive. Ultimately, she testified that what she did on this day was flag for him to remove what he had previously erroneously written about the Father being arrested for child, sexual and physical abuse. This answer made no sense. I cannot accept that if that is what she told Dr. Khaleel he would have made a note of something so different. Dr. Khaleel had made a note in August 2021 that the Father had been arrested for child abuse and domestic violence but had put the word “error” next to child abuse. He testified that he corrected that at the time because he had misinterpreted what the Mother had told him. In her evidence, the Mother attempted to explain away the very clear statement in the notes by attempting to link it back to something unrelated that had taken place a year ago. She was not being forthright with the Court.
[64] The Mother was cross-examined extensively on whether she maintains these views. She had difficulty in answering the questions directly and frequently deflected. At some points, she testified that she had “suspicions” that the Father was abusing V.V.. At other points, she said that he was still yelling at the children but did not believe he was punching them. He was, however, negligent. With respect to sexual abuse, she gave evidence that she hoped the Father wasn’t but that if he was it would not be in an obvious way. She then raised the concept of “grooming.” Counsel for the Father repeatedly asked her the same question – “do you believe the Father is grooming the children to sexually exploit them?” Her answers varied:
• The Father wants to make people feel uncomfortable; he is normalizing sexual behaviour;
• The Mother is not a professional; all she can do is go on Dr. Ward’s report [I note Dr. Ward makes no such finding];
• Sexual exploitation needs to be understood; any time photos are viewed, that’s exploitation [there is no evidence the Father has shown the children any sexual photographs];
• The Mother has concerns;
• She doesn’t feel she is in a position to make the call; it was for Dr. Gray to make the call, but he wasn’t provided with enough information [Dr. Gray prepared a sexual behaviours assessment with respect to the voyeurism charge]; and
• She has concerns.
[65] Finally, the Court asked her to provide a yes or no answer, after which she would be entitled to provide any explanation. Her answer was “yes” because there were a number of red flags.
[66] I do not accept that the Mother simply believes the Father is negligent. She has consistently raised allegations that the Father has abused the children both physically and sexually. These allegations are well documented. As recently as August 30, 2022 she told her psychiatrist that, at least with respect one of the children, there has been physical and sexual abuse, most probably by her husband. At the hearing, despite repeatedly attempting to avoid the question, she agreed that she currently believes he is grooming the children for a sexual purpose.
Findings with Respect to the Best Interests of the Children
[67] In determining parenting time, the two most important factors in this matter are the children’s need for stability and each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent.
[68] The children require stability given their young ages and the turmoil they have been through. Although the evidence is somewhat limited, the behaviour of L.V. appears to be improving as suggested by his most recent report card. According to the CAS, both children are stable in the Father’s care. At this stage it would be extremely disruptive for the children to move to Australia. To go from having only supervised access with their mother to moving halfway across the world to be with her for large stretches of time is simply too great a change. While in the Mother’s interest, it would not be in the children’s best interests.
[69] The Mother says that the Father is not supporting her relationship with the children. She claims he exercised self-help in May 2022 and then deliberately undermined her access by refusing to approve a suitable number of supervisors. While perhaps the Father could have been a little less rigid, the reality is that the Mother’s behaviour was very concerning during this period of time, and it was this behaviour which led to the requirement for supervised access in the first place. Furthermore, the Mother had the opportunity to have the supervision aspect removed by addressing the concerns of both the CAS and Justice Muszynski. This did not occur.
[70] On the other hand, I have serious concerns about whether the Mother will support the development and maintenance of the child’s relationship with the Father. Given her belief that he may be abusing them, how could she? This has the potential to be very harmful to the children and is clearly not in their best interests. As noted by the CAS, the concern is that the children may grow up feeling not close to their father, unsure if they can trust him to keep them safe and may feel they need to take their mother’s side. Furthermore, they may feel it is okay for them to lie or exaggerate about others to get what they want. Finally, it may result in them not feeling if they can trust either parent with their feelings or emotions.
[71] These concerns would be amplified if the Mother were permitted to return to Australia with the children. The Father says that there would be no institutional knowledge of the history of the Mother’s behaviour. If the Mother begins to say harmful things about the Father to the children or makes allegations to authorities, it would be difficult to intervene. If the children were in Ottawa, there is a greater likelihood the CAS would step in, given their lengthy involvement in this matter. I agree.
[72] For these reasons, I conclude that it would not be in the best interests for the children to return to Australia with the Mother.
[73] The difficult issue then becomes how the parenting time should be allocated here in Ottawa.
[74] The evidence shows that the children have emotional attachments to both parties, despite the fact that the Mother has had only limited contact with the children over the last six months. Although I do not have direct evidence of the children’s preferences, I do have other evidence that suggests the children want more, unsupervised time with the Mother. In addition, the CAS has recognized that time with the Mother is important.
[75] The children were in the Mother’s primary care prior to the Parfett Order, and she had them for 50% of the time after that. For the most part she was able to care for and meet their needs. There were times when she became overwhelmed, would cry and on one occasion asked that the children be returned to the Father’s care. On this last point, I agree with the Mother that she should not be faulted for this. It was the right thing to do in the circumstances. Furthermore, she has since been receiving psychiatric assistance and the evidence suggests that the issue of excessive crying has improved and, in any event, can be treated moving forward.
[76] It is clear that the parties have very different approaches to child rearing. Although both parties are critical of each other’s parenting style, I am not in a position to determine that either one is better for the children. All I can say is that both parties have given serious consideration to how best to parent the children and are committed to doing so.
[77] On the issue of family violence, I find that there was one incident within the meaning of the CLRA – the surreptitious recording of the Mother engaging in sexual activity by the Father. This activity represents an invasion of privacy, and it is understandable why the Mother would have concerns about trust afterwards. However, the Father received an absolute discharge, the violence was not directed toward the children nor were they exposed to it. There is no evidence of harm or risk of harm to the children as a result. There are no current safety concerns for the children that stem from the incident. It carries little weight in determining the best interests of the children at this point in time.
[78] The Mother also alleges that the Father was controlling with respect to their finances. The Father denies this. As previously noted, the Father was a credible and reliable witness. The Mother was not. The electronic messages are limited and their content ambiguous. I accept the Father’s evidence on this point.
[79] Ultimately, I conclude that a 50-50 split of parenting time would not be appropriate at this stage. I do so for three main reasons.
[80] First, the Mother continues to believe that the Father is grooming the children for a sexual purpose. As previously noted, this has the potential to cause great harm. While the risk of harm cannot be eliminated, it can at least be managed. Reducing the Mother’s parenting time is one way to do so.
[81] Second, the children have had only limited supervised access with the Mother for the last six months. Some transition is required. A sudden change to equal parenting time would not provide the necessary stability.
[82] Third, the Mother did not present a plan of care should she not be able to return to Australia with the children. The evidence is that she is in dire financial circumstances and is about to be evicted from her apartment. It is unclear how she would be able to look after the children’s needs if there was a return to the schedule that was in place before May 2022.
[83] For the next 60 days from the date of this decision, the Mother will have the children unsupervised:
a. Each Wednesday and Thursday from 3:00 pm until 7:00 pm.
b. Each Friday from 3:00 pm until Saturday 4 pm.
c. Such further times as the parties may agree in writing via OFW.
[84] At the conclusion of the 60 days, the Mother will have the children unsupervised:
a. Every Wednesday from 3:00 pm until 7:00 pm.
b. Every second weekend, from Friday at 3:00 pm until Monday at 8:00 am.
c. Such further times as the parties may agree in writing via OFW.
[85] On the issue of decision making, the evidence overwhelming establishes that the parties have serious difficulties in communicating with one another and agreeing on medical, educational, and extracurricular activity decisions. One of the parties needs to have final decision making authority. I find that in this case it should be the Father. In light of the Mother’s repeated and unsubstantiated allegations of abuse, her judgment with respect to decision making that would be in the best interests of the children is questionable. In addition, given that the children will primarily be in the Father’s care, it makes more sense for him to have final decision making authority.
[86] That said, the parties should continue to attempt to reach agreement wherever possible. The evidence demonstrates that the Father can be somewhat rigid in his decision making and will frequently resort to saying no. One example of this is with respect to the psycho-educational assessment. On my reading of the Dr. Ward report, the recommendation would be to have the assessment done now. I recognize that the Father has a concern about “labelling” his son. However, if he is correct in his belief that his son does not have ADHD then there will be no diagnosis and no label. If there is confirmation of the previous diagnosis, then it will be in L.V.’s interest to receive the appropriate treatment. Being diagnosed with ADHD is not a badge of shame.
[87] The parties will consult each other via Our Family Wizard on all decisions respecting their children, including extracurricular activities, health, education, and religion. Failing agreement, the Father shall have final decision making authority
CHANGES TO THE MACKINNON AND PARFETT ORDERS
[88] Some aspects of the Mackinnon and Parfett Orders need to be removed. Others will be revised. Given that the revisions are significant, the parties may wish to submit a new draft order that replaces these two prior orders in their entirety. If not, a draft order that simply reflects the following revisions and deletions can be submitted:
[89] Paragraphs 1, 2 and 3 of the Mackinnon Order shall be replaced with:
The parties shall consult each other via Our Family Wizard on all decisions respecting their children, including extracurricular activities, health, education, and religion. Failing agreement, the Father shall have final decision making authority.
[90] Paragraph 6 of the Mackinnon Order shall be replaced with:
The Father shall maintain the original copies of the children’s health cards and passports. Each party shall keep original copies of the children’s birth and citizenship certificates. Each will cooperate in executing any and all documents no less than 6 days prior to expiration. The children’s passports shall be renewed no later than 9 months prior to their expiration.
[91] Paragraph 11 of the Mackinnon Order shall be replaced with:
Appointments: the Father making an appointment for one or both children with a health professional shall immediately include same in the OFW calendar.
[92] Paragraphs 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 37 and 41 of the Mackinnon Order shall be deleted
[93] Paragraphs 35 and 36 of the Mackinnon Order shall be replaced with:
The Mother shall pay the Father child support in accordance with the Federal Child Support Guidelines. However, should the Mother relocate her primary residence to Australia, she shall not pay child support, or contribute to s. 7 expenses for the children’s extra curricular activities or schooling, recognizing the increased costs associated with exercising access with the children.
[94] Paragraph 39 of the Mackinnon Order shall be replaced with:
All s. 7 expenses for the children relating to health, daycare, or schooling shall be split pro rata. Each party shall reimburse the other for his or her portion of any s. 7 payments made by the other within 14 days of the expense being incurred. Neither party shall be obliged to contribute to any such expense unless his or her consent in writing to do so is first obtained, such consent not to be unreasonably withheld.
[95] Paragraph 45 of the Mackinnon Order shall be replaced with:
The terms of this order may be changed, altered, or amended at any time with the written consent of both parties, evidenced by their communication in OFW. Absent that consent a change may only be accomplished by arbitration or through by Order of a court of competent jurisdiction.
[96] Paragraphs 1, 2 and 3 of the Parfett Order shall be replaced with:
Effective immediately upon the date of this Order and for 60 days thereafter, the children will reside with the Father except that the Mother will have unsupervised parenting time as follows:
a. Each Wednesday and Thursday from 3:00pm until 7:00pm.
b. Each Friday from 3:00pm until Saturday 4pm.
c. Such further and other time as the parties may agree in writing via OFW
Thereafter, the children will reside with the Father except that the Mother will have unsupervised parenting time as follows:
a. Every Wednesday from 3:00pm until 7:00pm
b. Every second weekend, from Friday at 3:00pm until Monday at 8:00 am.
c. Such further and other time as the parties may agree in writing via OFW
Where possible, exchanges of the children shall occur at school. Where school is not appropriate, all exchanges of the children shall be at the residence of the receiving parent.
The Father shall be entitled to a three-week summer holiday with the children during the months of July or August, which weeks may be consecutive. The Mother shall be entitled to three weeks holidays during July and August, non-consecutive. For 2023, Father shall choose his vacation times proper to March 1 and the Mother by April 1. First choice will alternate annually thereafter.
In the event the Mother’s weekend is extended due to a statutory holiday and/or PD day, her time with the children will be extended to include the additional days.
If not otherwise with her, the children shall be with the Mother for Mother’s Day from 9:00 a.m. that day to 8:00 a.m. the following day.
If not otherwise with him, the children shall be with the Father for Father’s Day from 9:00 a.m.
Nothing herein precludes the Father from travelling with the children provided such travel is to and within a country which is a signatory to the Hague Convention.
If the Mother returns to Australia the following shall occur:
a. at the Mother’s request, the Father shall escort the children to Australia for the month of July, commencing in 2023 after school finishes, subject only to national or international travel restrictions. As a pre-condition to any such travel, no less than 30 days proper to departure, the Mother will pay for and provide proof of the children’s return flights, travel insurance and health insurance.
b. During that month, in each 7-day period, the children will spend one over night from 7:00 p.m. to 8:00 a.m. with the Father, the timing of which to be agreed upon between the parties.
c. If the Mother attends in Ottawa, during the children’s other holidays, she may have a further period of up to three weeks at a time with the children. During that time, in each 7-day period, the children will spend one over night from 7:00 p.m. to 8:00 a.m. with the father
d. Further parenting time as the parties may agree from time to time
Costs
[97] If the parties are unable to agree on the quantum of costs for this motion by January 13, 2023, written submissions of no more than three pages, along with bills of costs and offers to settle, may be provided to me at 10 day intervals and I will make a decision.
Carter J.
Released: December 13, 2022