COURT FILE NO.: FC-17-2080

DATE: 2022/12/21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Cynthia Lyn Patterson, Applicant

-and-

Gregory Brian Lightfoot, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Sonya Notturno, for the Applicant

Respondent, Self-Represented

HEARD: May 24, 25, 26, 27, 2022 by Videoconference

trial decision

Overview

[1] The focus of this trial is H, the parties’ 12-year-old daughter, born in 2010. The parties had a relatively short relationship around H’s birth. They separated in 2011, when H was 9 months old. H has primarily resided with the Applicant Mother, since the parties moved apart.

[2] This Application concerns child support for H, and parenting terms and decision-making.

[3] Since the parties’ separation, there have been intervening events that are contested between the parties. But the parties have agreed on a reunification counselling process to address parenting time. They disagree, though, on terms for parenting time after the reunification counselling process comes to an end. The Father seeks an order that he have unsupervised alternate weekend parenting time, plus any additional time that the child wants to spend with him. The Mother proposes that the Father’s parenting time be shaped by recommendations from the counselling process and reflect the child’s needs and best interests. The parties dispute decision-making, and also child support.

[4] The issues to be determined are:

1. Child Support: What child support should be payable by the Respondent Father to the Applicant Mother for H?

2. Decision-Making: What order for decision-making is in H’s best interests, including orders regarding consent to travel and applications for H’s passport?

3. Parenting terms: What other parenting terms are in H’s best interests, including with respect to what happens after the agreed upon reunification counselling process ends?

[5] The determination of these is under the Family Law Act, R.S.O. 1990, c.F.3, (child support), and the Children’s Law Reform Act, R.S.O. 1990, c.C.12 (parenting). The parties were not married.

Issue #1: Child Support

[6] The Mother seeks an order requiring the Father to pay child support commencing November 1, 2017, being the first day of the month after she commenced this Application. The mother did not, however, seek child support in her original Application. At the time she started the Application, the Father was paying her $150 per month in child support. He stopped paying child support when she started the court Application. On September 5, 2019, the Mother amended her Application to include a claim for child support.

[7] On April 6, 2021, on an interim motion brought by the Mother, Justice Labrosse ordered the Father to pay temporary child support as of March 1, 2021 of $384 per month, based on the Father’s 2020 income of $42,201.89.

[8] I accept the Mother’s evidence on what child support the Father has paid since November 1, 2017, which was based on her e-transfer records. This evidence was largely uncontested by the Father, except for the Father’s claim that he paid an additional $200 in cash and “lots of other money” for which he provided no particulars or supporting documents.

[9] I do not accept that the Father paid “lots of other money” to the Mother. Again, the Father provided no particulars or these payments and no supporting documents. This claim is also inconsistent with the overwhelming evidence that the Father believed he had any number of reasons why he did not have to pay child support to the Mother, including even after ordered to do so on April 6, 2021.

[10] The Mother’s total for the child support she received is also generous to the Father. She has included in her total several payments that the Father sent to her with instructions for her to purchase a gift for Hanna. Gifts are not child support. The Mother’s inclusion of these gift amounts in the total credited to the Father more than offsets the Father’s one specific claim that he contributed a further $200 in cash.

[11] I find, therefore, that the child support paid by the Father since November 1, 2017, to trial be as follows:

2017 (after November 1, 2017)

$0

2018

$900

2019

$50

2020

$375

2021

$454

2022 (to May 27, 2022)

$80

Total

$1,859

Start Date

[12] The Mother seeks table child support based on the Father’s income back to November 1, 2017. She acknowledges that she did not provide formal notice of this claim until she amended her Application in September 2019 but submits that the Father’s conduct in ceasing support payments in 2017 amounts to blameworthy conduct, which justifies child support being payable back to November of 2017.

[13] The Father opposes paying any child support prior to September 1, 2019. He submits that he did pay child support in an amount greater than the Applicant acknowledges. The Father also submits that he should not have to pay child support when the child was not attending in-person schooling in 2020, 2021 and 2022 (during the Covid-19 pandemic), and that paying table child support would cause him undue hardship because of transportation and supervision costs for him to exercise parenting time.

[14] I find that child support should be payable from November 1, 2017. I have considered the factors in the SCC decisions in DBS[^1], Michel v Graydon[^2] and Colucci[^3]. I find that the Father’s conduct constitutes blameworthy conduct, in particular because:

• The Father ceased paying child support when served with the Mother’s Application for parenting orders, when he knew that he had a continuing child support obligation.
• Prior to the court application, the Father was paying child support of $150 per month. This was below the table amount based on his income. Although the Mother “agreed” to this amount, I find that this below table amount was based on the Father’s representation of what he could afford to pay. The Father’s conduct towards child support, including his history of payment, reflects that the Father does not consider child support to be a priority and does not believe the Mother is entitled to child support from him.
• I accept the Mother’s evidence, that was not contested by the Father, that the Father was physically, verbally, mentally and emotionally abusive towards her during their relationship. He was violent towards the family dog. He hit the Mother, choked her, threw things at her. He made unfounded strange accusations against the Mother and others. There were, and continue to be, significant concerns about the Father’s mental health.
• The Father’s aggressive, controlling and abusive approach towards the Mother has continued past their separation and was amply demonstrated by his conduct and testimony at trial.
• I find that the Mother avoided raising child support earlier because she was concerned with inciting the exact reaction that was demonstrated by the Father at trial, which included the Father’s anger, hostility, aggressive attacks on the Mother’s conduct as a parent, arguing that the Mother’s sole motivation was money, and demonstrating a complete lack of insight into his conduct, and the negative effect it had on those around him.

[15] In all of the circumstances, I find that the Mother’s delay in amending her pleadings to include a claim for child support was understandable and a reasonable reaction to the Father’s blameworthy conduct, which should not insulate the Father from his child support obligation that he knew existed at the time.

Father’s Income

[16] The Father’s income, for child support purposes, is as follows:

Year

Income

Table Amount[^4]

2017

$40,812 less $712 union dues = $40,100[^5]

$360

2018

$32,181 less $112 union due = $32,069[^6]

$274

2019

$45,914[^7]

$426

2020

$42,201[^8]

$384

2021

$66,818[^9]

$623

2022

$66,818[^10]

$623

[17] The above amounts are based on the Father’s Assessments, downloaded from CRA, for 2017, 2018, and 2019, and his T4 slips for 2020 and 2021 that he provided to the Mother’s counsel. The Father did not provide copies of his complete tax returns, as filed, for any of the years in issue. The Father advised that he had not yet filed his tax returns for 2020 and 2021. On October 22, 2021, Justice Summers ordered the Father to file his 2020 income tax return forthwith, but he has not done so.

[18] I deducted union dues from the Father’s income in 2017 and 2018 because these appear on his CRA Assessments filed as Exhibits, and are Schedule III adjustments under the Child Support Guidelines, O.Reg. 391/97. I did not deduct union dues for any other years because I did not have evidence of these being paid, the Father did not claim them in argument or his testimony, and the onus of proving deductions to his income for child support purposes falls on the Father.

[19] For 2022, I have used the Father’s income that he earned in 2021. The Father testified that he did not know what his income would be in 2022. He is paid hourly and in 2021, had several different employers. I find that it is appropriate to base child support payable in 2022 on the Father’s 2021 income.

Father’s Claim that Child Support is not Payable when the Child is not attending School

[20] The Father argues that he is not required to pay child support for the period that the child is not in full-time attendance at school. He relies on s.31 of the Family Law Act as authority for position. He argues this impacts child support payable from March 2020 to August of 2022, when the child was not attending in-person schooling.

[21] The Father’s argument is faulty for two reasons. First, the child was in school – she attended virtual schooling (March 2020 to June 2020) and then was homeschooled. She was enrolled to return to in-person schooling for September of 2022.

[22] Second, and more importantly, the Father has misread s.31 of the Family Law Act. Section 31 provides:

s.31(1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,

a) is a minor;

b) is enrolled in a full- time program of education; or

c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.

(2) The obligation under subsection one does not extend to a child who is 16 years of age or older and has withdrawn from parental control.

[23] The Father’s reading of s.31 ignores the word “or” in the legislation. The child is 12 years of age. The Father has an obligation to support her because she is a minor.

[24] I found the Father’s claim that he did not believe he was required to pay child support because the child was not attending in-person school or being homeschooled to be disingenuous, at best. If the Father was really confused about his obligation to pay child support when the child was attending school virtually or being homeschooled, this should have been clarified for him when Justice Labrosse ordered, on April 6, 2021, him to pay temporary child support as of March 1, 2021, of $384 per month. Despite this order, the Father only made one child support of $384 after the April 6, 2021 Order, being on April 30, 2021. For the rest of the period after the interim order was made, the Father only provided the Mother with three small payments, here and there, that totaled $130.

Father’s Claim to pay less than the Table Child Support because of transportation costs and costs of supervision

[25] The Father’s position is that child support should be reduced because of the costs he pays to exercise parenting time – being transportation and supervision costs. I dismiss this claim for the following reasons:

• The Father did not plead undue hardship[^11]in response to the Mother’s Amended Application to claim child support. The Father did not amend his Answer in any way in response to the child support claim.
• Even if the Father had pleaded an undue hardship claim, the onus of proving such a claim falls on him, and he has not met this onus.
• I do not find that the Father’s cost relating to access constitutes under hardship that would warrant this court exercising its discretion to reduce child support below the table amount. The Father’s costs included transportation costs between Kingston and Ottawa and costs of supervision. The Father’s evidence was that these costs were $300 per visits plus $50 per phone call, although he did not provide an annual total cost, either for the period prior to trial or projected after trial. The evidence supports that the Father was not exercising all of the visits to which he was entitled – he only had 10 supervised in-person visits during the period from September 26, 2020, and trial. The cause of the supervision is also the Father’s conduct. I do not find that in these circumstances, a reduction based on undue hardship is warranted.
• The Father main belief is that the table amounts for child support, on their own, are simply unfair because of the cost of living, and his other expenses. The Father repeatedly stated that he would go bankrupt if he had to pay the full table child support amount. He also expressed significant distress at having to pay any arrears of child support during the period that he was not paying child support, yet should have. While I accept that the Father has organized his financial affairs based on ignoring his child support obligations, this does not justify him being allowed to continue to do so. I also reject the Father’s main argument that the table amounts are, in and of themselves, unfair.
• I did not have evidence before me upon which I could conclude, on a balance of probabilities, that the Father’s household standard of living is less than the Mother’s[^12]^. The Father did not address the household standard of living comparison in his submissions. In fact, the Father’s evidence was that he had a very comfortable standard of living, including that he lives in a comfortable house and has a car.

Father’s Other Arguments on Child Support

[26] The Father’s position included several other allegations against the Mother which appear to be part of his submissions for why this court should not require him to pay full table child support. The Father perceives the Mother’s conduct in seeking child support from him and that his access be supervised, to be vexatious, harassing, and abusive towards him and the child. He describes the Mother has coercive, controlling, and acting in bad faith. He also argues that the Mother’s conduct is motivated only by her financial interests. In the Father’s eyes, the Mother’s alleged abusive conduct towards him (through this court process) has been solely motivated by her trying to get money from him. I reject these arguments in their entirety. I find that Mother has acted reasonably in very difficult and challenging circumstances, those circumstances being caused by the Father’s abusive and controlling conduct.

[27] The Father raised an allegation that the Mother had improperly received the Child Tax Benefit for the period from 2011 to 2013. During this period, the child was in the Mother’s care during the week, and with the Father on weekends. The Father’s position is that part of the Child Tax Benefit should have been paid to him because of the timesharing arrangement. In his submissions, he argued that the Mother owes him $10,044 because of the Child Tax Benefit she received. I dismiss this allegation as a basis to reduce child support for the following reasons:

• Any issues the Father has with whether or not CRA should have paid him part or all of the Child Tax Benefit are between him and CRA. CRA is not a party to this proceeding. I do not have jurisdiction to determine entitlement to Child Tax Benefits under the Income Tax Act in their absence. The Father’s recourse as to whether or not he was entitled to the Child Tax Benefit is with CRA, through the Tax Court.
• The Father has not provided evidence to support how he arrives at $10,044. He has not served or filed any of his income tax returns, including for 2011, 2012 or 2013.
• This claim is not raised in the Father’s pleadings.

Section 7 Expenses

[28] The Mother does not seek any contribution to s.7 expenses incurred prior to trial. She seeks only an order requiring that the Father to contribute to future s.7 expenses in proportion to the parties’ respective incomes. This is consistent with the Child Support Guidelines, and I have made this order below.

Life Insurance

[29] The Mother seeks an order requiring the Father to provide life insurance to secure his child support obligation. The Father’s evidence was that he did not have life insurance on his life, and that he vehemently opposed having life insurance coverage on which the Mother was the designated beneficiary, in trust for the child.

[30] I find that an order requiring the Father to secure his child support obligation is warranted under the Family Law Act. However, because there is no evidence before me that the Father has life insurance on his life, or that life insurance is available to him at a reasonable cost, I am ordering the Father to provide life insurance if it is available to him at a reasonable cost. If life insurance is available to the Father at a reasonable cost, he is ordered to designate the Mother has beneficiary in trust for the child of coverage to secure his child support obligation, which I fix at $100,000, taking into consideration the ongoing child support, child support arrears, and anticipated s.7 expenses, such as post-secondary schooling. If life insurance is not available at a reasonable cost, and the parties cannot agree on alternate security, the issue may be returned to me for further order.

Issue #2: Decision-making

[31] I find that it is in the child’s best interest for the Mother to have sole decision-making authority. Given the Father’s conduct, there is no reasonable prospect for joint decision-making being in the child’s best interests. The Mother has demonstrated that she is able to make decisions in the child’s best interests, in a child-focused manner. Imposing a requirement that decision be made jointly is not in the child’s best interest and would instead continue to enable the Father’s abusive conduct.

[32] There are numerous examples in the evidence to support the above findings. I refer to just a few:

• There is very little, if any, communication between the parties. For example, the Father failed to respond to the Mother’s communications to discuss homeschooling.
• The Father is excessively critical of the Mother’s parenting, even though it is not contested that the child is doing well. The only complaint that the Father can muster regarding the Mother’s decision-making for the child, aside from his complaints regarding his parenting time, was the decision to homeschool the child in September of 2020. I accept the Mother’s decision to homeschool the child was reasonable and made in a child-focused manner, given the child’s needs and the impact that the pandemic, and virtual learning, had on her education. The child is enrolled to return to in-person school in September of 2022, so homeschooling is not an ongoing issue.
• The Father was unable to say anything positive about the Mother’s parenting, again despite that the child is doing well.
• The Father has repeatedly failed to make decisions in a child-focused manner and lacks insight into the effect of his conduct on others. This includes, for example, the Father’s history of not paying child support and asking the child inappropriate questions during supervised visits despite being repeatedly asked not to, pestering the child again and again to tell him that she was not afraid to visit him, and that she should visit him in Kingston, even when he was aware that she had told several other people that she was scared of him and did not want to visit him in Kingston.
• The Father’s conduct, which I find is abusive and controlling, including as demonstrated at trial. At trial, the Father:
  • easily became agitated, aggressive, and animated. He was difficult to reason with during his testimony. At one point during the trial, the Father became so upset and agitated that he stormed out of the camera’s view (the trial was by videoconference), exclaiming, with profanities, that he was “done with this”. The trial continued the next day.
  • repeatedly making exaggerated allegations against the Mother. For example, the Father testified, several times, that after September of 2020, the Mother had taken H away for months and months. On cross-examination, he agreed he had exaggerated, that the Mother and H were only away for 10 days in August of 2021, and that he was aware of the trip before they went. The Father testified that the Mother had kept H away from her paternal grandparents, but on cross-examination, acknowledged that the Mother had arranged visits between H and his parents – the Father viewed these visits, without justification, as the Mother engaging in “sneaky tactics”, acting inappropriately behind his back because the visits did not include him, and taking advantage of his elderly, desperate and naive parents.
  • avoided and deflected when confronted by accounts that he did not agree with. This included, for example, the OCL investigation report by Ms. Kapasky, the notes from supervised access, and the Voice of the Child Report. The Father repeatedly accused the writers, without justification, of lying, being incompetent, acting unprofessionally and, on one occasion, being drunk. Yet the Father did not call any of the writers to be subject to cross-examination at trial.
  • repeatedly referenced his “fatherly rights” in a manner that ignored that the focus is the child’s best interests.

[33] The Mother’s proposed wording for decision-making included that she would consult with the Father, but required that he respond within 48 hours, and that if the parties were unable to agree, she would have final say. Because of my findings with respect to the Father’s conduct, I find that it is in the child’s best interests to make the order for decision-making set out below. This wording specifies that the Mother has sole decision-making for the child. The Mother shall consult with the Father to the extent that it is in the child’s best interests to do so, and, at minimum, shall advise the Father of any significant decisions regarding the child’s health, education and general well-being. This shall be subject, however, to the child’s right of privacy when she is of the age and level of maturity to have a right to privacy regarding such decisions.

[34] For the same reasons as set out above, I have also made orders that authorize the Mother to apply for a passport for the child, and any renewals, and to authorize travel for the child without the need for the Father’s consent.

Issue #3: Parenting Terms

[35] Although there was a great deal of evidence at trial related to parenting issues, ultimately the issues to be decided by me with respect to other parenting terms are limited.

[36] It is not contested that H primarily lives with the Mother and that this will continue.

[37] The parties have agreed to a reunification counselling process to address H’s parenting time with the Father. This process was underway at the time of trial. The parties agree to continue this process.

[38] The main issue with respect to parenting time is that the Father seeks an order that sets out what his parenting time will be once the reunification counselling process is complete. He seeks an order that once the reunification counselling process is complete, he have unsupervised parenting time 3 out of 14 days, plus phone calls, and that H have the right to choose to spend additional time with him.

[39] I am not prepared to make an order that defines what parenting time should be after the reunification counselling process is complete. I am not prepared to make an order that the Father’s parenting time be unsupervised and setting a schedule for such parenting time. I am not prepared to make an order that it will be up to H if she wants to spend additional time with the Father. I do not find it is in the child’s best interest to make an order, now, about what parenting time should occur at some point in the future. Such an order should only be made after the outcome of the reunification counselling process, which is still ongoing, is known, as well as how that process impacts the child’s best interests at that time.

[40] The Father’s position is based on his view that the point of the reunification counselling process, at this point, is for him to provide an explanation to H about his past behaviors. The Father’s position is that these past behaviors, which stem from 2016 and gave rise to concerns about his mental health, were because he had lock jaw and was jaundiced, caused because he stopped drinking and smoking abruptly. The Father denies having any mental health problems and insists that the child simply needs an explanation that this is the case, for his unsupervised access to be reinstated.

[41] It is not that simple.

[42] Significantly, the current circumstances surrounding the child’s best interests include H’s views and preferences. H’s views and preferences were introduced at trial through the Children’s Lawyer reports, being a s.112 assessment completed by Sandra Kapasky on July 8, 2019[^13] and a Voice of the Child Report completed by Catherine Reid on May 20, 2021[^14]. The parties agreed as part of the Trial Management Endorsement Form that the child’s statements were admissible at trial through the Children’s Lawyer reports[^15]. I would admit these statements in any event as a principled exception to the hearsay rule because they are necessary and meet the threshold reliability test. Neither party objected to the admissibility of these statements. Neither party provided evidence that they filed a dispute regarding either report from the Office of the Children’s Lawyer. Neither party called the report writers to testify at trial.

[43] Evidence of the child’s statements were also introduced at trial, on consent, through the reunification counselling process report dated May 6, 2022[^16]. I would also admit these statements a principled exception to the hearsay rule because they are necessary and meet the threshold reliability test.

[44] With respect to reliability, in these reports the child’s statements were made to a neutral third-party professional, who was trained to interview children, and to record the child’s views and preferences in an accurate manner.

[45] These reports are consistent that the child loves her father, enjoys her visits with him when they are supervised, but is scared of her father related to past behaviour on his part that she has witnessed (in particular, the Father’s Day incident and the 2016 situation involving him hearing voices). The child is consistent that the Father repeatedly asks her to tell him that she is not scared of him and that she needs to visit him in Kingston. This questioning causes the child to be fearful and sad. H feels pressured to give the Father the answers that he wants to hear. She acknowledges responding “no” when he asked her if she was scared of him at the 2019 Father’s Day incident and is consistent that she did so because she was scared to tell him the truth. The child reports her father repeatedly pressuring her to say she is not scared of him. This upsets her because she does not know how to respond.

[46] The child is also consistent that she feels comfortable and supported in her mother’s care. The child is concerned about her father and wants him to get help.

[47] The reunification counselling process is aimed at addressing H’s fear, sadness and feeling unsafe when with her father. Whether H’s fears will be addressed through that process to the extent that she wishes to have unsupervised visits with her Father, and under what circumstances, and on what schedule, remains to be seen.

[48] There are also several other factors that continue to weigh significantly in determining H’s best interests and will need to be addressed as part of any evolution in the Father’s parenting time. These include:

• The Father’s history of abusive and controlling conduct towards the Mother, including his conduct at trial.
• The Father’s lack of insight into the impact of his conduct on others.
• The Father’s conduct in repeatedly pressuring H to tell him that she is not scared of him and pressuring her to visit him in Kingston, despite repeatedly being told that he should not be doing so.
• The Father’s failure to accept what the child is saying in the Children’s Lawyer investigation and the Voice of the Child Report that she is scared of being with the Father unsupervised. H’s fear is also consistent with the Reunification Counseling report on May 6, 2022. The Father insists that H is not scared of him, relying on her “no” when he asked her if she was during the 2019 Father’s Day incident. He refuses to accept that he pressured H to give him this answer, instead arguing that the answer H gave him in 2019 was the only truthful statement of her feelings that H has ever made.
• The Father’s refusal to accept what H has reported to several people, consistently, over several years, is concerning and, unfortunately, consistent with the Father’s response when people say things that he does not wish to accept. Instead, the Father discounts anything that does not accord with his view as being a lie. Everyone is lying - the Mother, H, the OCL report writers, the access supervisors, and on and on, except when they are saying what he wants to hear.
• The Father’s insistence that the Mother has acted in bad faith towards him, in a vexatious manner, is the cause of all of his problems, and is abusive towards himself and the child.
• The Father’s failure to accept responsibility for his conduct.
• The Father’s past conduct in sharing with the child that the problems in their relationship are the Mother’s fault and not his, and the significant risk that he will continue to do so.
• That the Father has not had unsupervised time with the child since December of 2018, and irregular supervised access since that time.
• There continue to be unanswered questions regarding the Father’s mental health and stability. The Father’s conduct has raised concerns about whether he is delusional and/or paranoid. The Father admits to having been assessed by a psychiatrist in the past but has not provided a copy of that assessment. On January 11, 2019, I ordered the Father to provide proof of his treating medical doctor regarding his current mental stability and any current psychiatric diagnosis, of any, and current treatment. On July 8, 2019, Ms. Kapasky recommended that the Father have a complete psychiatric assessment and to follow recommendations of the psychiatrist. The Father did not provide a psychiatric assessment at trial, nor any medical records from a psychiatrist or psychologist. He did provide a dental chart that confirmed dental issues in the summer of 2016[^17]^, and a one paragraph letter from a social worker, Deborah McEwan[^18]^, dated December 1, 2020, that confirms he continues to attend counselling, that they continue to review his lifestyle factors related to mood stabilization, and that she does not have any child protection concerns. Based on the evidence before me, including the Father’s conduct at trial, I find that there remain mental health concerns about the Father which raise concerns about his parenting time, that remain unaddressed.

[49] Overall, in consideration of the evidence before me, I have concerns about the Father’s ability to meet the needs of the child in an unsupervised setting and to act in a manner that is consistent with her best interests. I do not find that unsupervised access to the Father would be in the child’s best interests at this time, nor that it is foreseeable when unsupervised access would be in her best interests. This will depend, again, on how the reunification counselling process progresses, the child’s views and preferences, the Father’s stability and mental health, and the Father’s ability to act in a manner that is consistent with the child’s best interests, which will necessarily involve him developing a higher degree of insight into and responsibility for his conduct.

[50] I have taken into consideration that there were significant interruptions in the Father’s parenting time with the child. The Father blames the Mother for these, and this is a large part of the basis for his view that the Mother has acted in bad faith, in a vexatious manner, and has been abusive towards him.

[51] Prior to 2016, H regularly spent time with the Father. Initially, she spent every weekend with him. Once she began school, this changed to alternate weekends. This changed in 2016 when the Father called the police when he had H in his care and reported hearing voices. H describes witnessing the Father acting in a very concerning manner during this period, which made her fearful. The CAS became involved and the Mother began supervising the Father’s parenting time. After the CAS closed their investigation, the Father’s unsupervised alternate weekend parenting time resumed. At times the Mother resumed supervision of the Father’s access, including in around 2017. From August of 2018 to December 2018, the Father’s parenting time was unsupervised. The Mother resumed supervising the Father’s parenting time in December of 2018 when she was concerned with the Father’s mental health and believed that H was uncomfortable with the visits.

[52] The significant gaps in the Father’s parenting time occurred from June of 2019 to September of 2020, following the incident on Father’s Day in June of 2019, and again from April to December of 2021. I accept that some of the gaps in the Father’s access were due to his conduct. At the same time, it is unfortunate that the gaps lasted as long as they did, and the Mother is partially responsible for this. But overall, I find that the Mother was trying her best to deal with a very difficult situation, caused by the Father’s conduct. She did not deal with the situation perfectly but, overall, she has demonstrated a remarkable level of endurance in continuing to support the Father’s visits with the child.

[53] The child’s statements support that she was scared, mad and did not want to see her Father during some of these periods. Given the conduct that took place, this is understandable. While it may have been optimal for the Mother to have taken earlier steps to resume the Father’s parenting time, in the contest of her limited financial resources (in part, due to the lack of child support) and an atmosphere that I have found to be abusive, I do not find that the Mother’s conduct amounts to being bad faith, vexatious, or abusive. Nor does it justify the Father’s conduct or remove the concerns about his parenting time.

[54] There was much attention at trial on an incident that took place on Father’s Day in June of 2019, that warrants reference here. On this day, there was a physical altercation between the Father and the Mother’s new partner. The parties have different accounts of this incident. Prior to the altercation, the Father was questioning H by asking her, in an apparent attempt to record her with his phone, “Are you afraid of me? Are you afraid of Daddy?”. The altercation took place when the Father was asked to stop. The Mother says the Father pushed her, punched her partner, and held a golf club over his head in a threatening manner. The Father denies pushing the Mother, claims that the Mother’s partner hit him first, and that he held the golf club in self-defense.

[55] I find that the Father instigated the 2019 Father’s Day incident, and that he acted aggressively and violently. I found the Mother’s evidence on this incident more credible than the Father’s. The Mother’s evidence was consistent with the evidence of her partner and the statements made by the child when she met with Ms. Kapasky shortly after the event. The Father’s credibility at trial was also weakened by his avoidance and deflection when confronted by contradictory accounts, his demeanor which was aggressive and angry towards the Mother, and that his accounts and justifications were not rationally consistent with other evidence.

[56] H was mad and scared after the Father’s Day incident, did not want to see her Father for some time afterwards, and continues to refer to this incident because it was scary for her.

[57] I have also considered several other criticisms made by the Father towards the Mother. None of these criticisms remove the concerns about the Father’s parenting time set out above, but I address these below:

• The Father alleges that the Mother was a poor parent because the child had a lot of absences from school. He relied on the child’s report card from June of 2020 that reported the child had 7 absences and 15 lates. I do not find that these absences or lates raise concerns about the mother’s parenting. By all reports, the child is doing well in the mother’s care. Her report card reflects this. On her report card, the child received “Good” ratings for her skills and work habits, and mostly B’s, with a few A’s, on her subjects. Overall, her report card is positive and reflects positively on the Mother’s parenting.
• The Father challenged the Mother’s mental health. The Mother had mental health challenges in the fall of 2010, which she relates to the Father’s abuse, which she states was at its worst at that time. The Mother sought treatment, including medication and counselling. She receives regular medical care related to her overall health and mental well-being. I do not find that the Mother’s mental health raises concerns about her ability to meet the needs of the child, who is doing well in her care.
• The Father challenged the Mother’s drug and alcohol use but did not pursue this in his evidence. The Mother acknowledges having some challenges with substance use in the past, but not in the last five years. I do not find that the Mother’s substance use raises concerns about her ability to meet the needs of the child, who is doing well in her care.
• The child reported in the Voice of the Child report that, when she was being home schooled, she was at times home alone when her mother was working. The Report was completed when the child was 11 years of age and appears to relate to a time period when the child would have been 10 or 11 years of age. It is not clear how often this occurred, for how long at a time, whether there was any other adult present in or near the child’s home. The Father raises concerns about the child being left alone but did not ask the Mother about this in cross-examination. There is no evidence before me that the child came to any harm because of being left alone. There is, therefore, little evidence to go on with respect to this concern. While I agree that generally children under 12 should not be left home alone, I am not prepared to find that something untoward took place on the evidence before me. As the child is now 12, this is not a concern going forward. Again, this potential concern does not displace the concerns raised about the Father’s parenting time.

[58] Accordingly, I make the following orders:

1. Pursuant to the Family Law Act:

   a. Commencing November 1, 2017, and continuing on the first day of each subsequent month, until changed by further court order, the Father shall pay child support to the Mother for the support of H * [full name], born *, 2010 [full birthdate], as follows:

   i. For the period from November 1, 2017, to and including December 31, 2017, the sum of $360 per month, being the table amount for the Father’s income of $40,100/year;

   ii. For the period from January 1, 2018, to and including December 31, 2018, the sum of $274 per month, being the table amount for the Father’s income of $32,069/year;

   iii. For the period from January 1, 2019, to and including December 31, 2019, the sum of $426 per month, being the table amount for the Father’s income of $45,914/year;

   iv. For the period from January 1, 2020, to and including December 31, 2020, the sum of $384 per month, being the table amount for the Father’s income of $42,201/year;

   v. For the period from January 1, 2021, to and including December 31, 2021, the sum of $623 per month, being the table amount for the Father’s income of $66,818/year;

   vi. Commencing January 1, 2022, $623 per month being the table amount for the Father’s income of $66,818/year, based on his 2021 income.

   b. For the child support payable under the above, for the period from November 1, 2017, to May 27, 2022, the Father shall be credited with paying child support totalling $1,859.

   c. Commencing June 1, 2022, the Father shall also pay to the Mother his share of any special and extraordinary expenses incurred for the benefit of the child in accordance with s.7 of the Child Support Guidelines in proportion to their incomes.

   d. The Father shall file his Income Tax Returns in every year on or before April 30th.

   e. On or before June 1^st in each year, the Father shall provide the Mother all information required to determine his income for the previous income tax year in accordance with s.21 of the Child Support Guidelines, including:

   • a copy of his Income Tax Return as filed, with all attachments and schedules, for the previous year and any prior years since 2019 for which he has not previously provided his return;
   • a copy his Notices of Assessment or any Reassessment received with respect to the above returns.

   f. For any year in which the Mother is claiming contribution to s.7 expenses incurred for the child, she shall provide the same income information as required above by the Father.

   g. By June 15^th of each year, the parties shall adjust child support and the proportionate sharing of extraordinary expenses, if applicable, such that it remains in accordance with the Child Support Guidelines.

   h. The Father’s child support obligation shall be a first charge on his estate.

   i. For so long as the child is entitled to child support pursuant tot the Family Law Act, the Father shall secure his child support obligation by maintaining a life insurance policy with coverage of no less than $100,000 and designating the Mother as the irrevocable beneficiary in trust for the child, if such coverage is available to the Father at a reasonable cost. The Father may apply from time to time to reduce this coverage based on the expected duration and quantum of child support. The Respondent Father shall provide confirmation of the efforts he has made to obtain such life insurance coverage, and its cost, within 120 days. If such life insurance is not available to the Father at a reasonable cost, the Mother may seek a further order from this court to secure the Father’s life insurance obligation.

   j. If available, both parties shall provide medical and dental coverage for the child for so long as the coverage is available through their employment or other means, the child is entitled to such coverage, and such coverage is available at a reasonable cost.

2. Pursuant to the Children’s Law Reform Act:

   a. The Applicant Cynthia Lyn Patterson shall have sole decision-making authority with respect to the child, H [full name and birthdate].

   b. Prior to making significant decisions respecting the child’s health, education and general well-bring, the Applicant shall consult with the Respondent to the extent that it is in the child's best interest to do so. At minimum, the Applicant shall advise the Respondent of any significant decisions regarding the child's health, education and general well-being, subject to the child's right of privacy when she is of the age and level of maturity to have a right of privacy regarding such decisions.

   c. Each party shall have the right to obtain information directly from health care providers, teachers, or any other professionals relating to the child, subject to the child's right of privacy when she is at the age and level of maturity to have such right.

   d. The Applicant shall be authorized to apply for a passport for the child, and any renewals thereto, without requiring the Respondent’s consent.

   e. The Applicant shall be authorized to consent to travel for the child, without requiring the Respondent’s consent.

   f. The child shall primarily reside with the Applicant Mother.

   g. The Father's parenting time with H shall continue to be supervised. The Respondent shall be solely responsible for the costs of such supervision.

   h. The parties shall continue to participate in and cooperate with the reunification counseling process started with Renew Supervision. If, as this counseling process progresses, or comes to an end, the parties are unable to agree on the Respondent’s parenting time, they may return this matter to court for further order. In this case, the reunification counselling program is invited to provide a report to the court with respect to the reunification process.

   i. I shall remain seized of the Respondent's parenting issues.

Costs

[59] I urge the parties to attempt to agree on the costs of the trial. If they are not able to agree, the Applicant may serve and file her cost submissions on or before January 13th, 2023. The Respondent may serve and file his cost submissions on or before January 24th, 2023. The Applicant may serve and file a reply before January 31, 2023. Cost submissions shall be limited to five pages, except for Reply submissions which shall be limited two pages. All pages shall be single sided, double spaced, 12-point font.

Justice P. MacEachern

Date: December 21, 2022

COURT FILE NO.: FC-17-2080

DATE: 2022/12/21

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Cynthia Lyn Patterson, Applicant

-and-

Gregory Brian Lightfoot, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Sonya Notturno, for the Applicant

Respondent, Self-Represented

trial decision

Justice P. MacEachern

Released: December 21, 2022

[^1]: S.(D.B.) v. G. (S.R.), 2006 SCC 37 [^2]: Michel v. Graydon, 2020 SCC 24 [^3]: Colucci v. Colucci, 2021 SCC 24 [^4]: Child Support Guidelines, all amounts are based on November 22, 2017 tables [^5]: Exhibit 25 [^6]: Exhibit 26 [^7]: Exhibit 27 – no union dues appear on the CRA Assessment [^8]: Respondent agreed this was his income in his testimony [^9]: Respondent agreed this was his income in his testimony [^10]: Based on the Father’s 2021 income [^11]: Child Support Guidelines, s.10 [^12]: Child Support Guidelines, s.10(3), (4) [^13]: Exhibit 8 [^14]: Exhibit 9 [^15]: Trial Scheduling Endorsement Form, Summers J. dated October 25, 2021 [^16]: Exhibit 4 [^17]: Exhibit 12 [^18]: Exhibit 11