COURT FILE NO.: FC1494/10-4

DATE: February 16, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

D.M.A.

David Winninger for the applicant

Applicant

- and -

A.H.M.

Leonard G. Reich for the respondent

Respondent

HEARD: September 20, 21, 22, 23, 24, 27, 28, 29, 2021; and October 1, 2021

MITROW J.

INTRODUCTION

[1] There were two main issues in this trial relating to the parties’ four children: decision-making responsibility and parenting time.

[2] Following the applicant father’s arrest on criminal charges in August 2018, he had parenting time on a sporadic basis, including periods of supervised parenting time at the Merrymount – Family Support and Crisis Centre (“Merrymount”).

[3] Several months prior to trial, the applicant began having some in-person parenting time with two of the children, as agreed to by the respondent mother.

[4] The position of the parties at trial was polarized. The respondent sought sole decision-making responsibility and defined periods of parenting time for the applicant.

[5] The applicant sought an order that the parties have shared decision-making responsibility and a schedule where each parent had equal parenting time with the children.

[6] The applicant, D.M.A., is the children’s father (sometimes referred to as “Mr. A.”). The respondent, A.H.M., is the children’s mother (sometimes referred to as “Ms. M.”).

[7] Ms. M.’s middle name was spelled incorrectly in the application and the title of the proceeding is amended in the order below to reflect the correct spelling of Ms. M.’s name.

[8] The trial was conducted virtually. However, after the second day of trial, it became apparent that there were significant issues with Mr. A. being able to have a secure and reliable internet connection to be able to participate from home in the virtual trial. Accordingly, effective the third day of trial, Mr. A. was directed to attend at the courthouse in order to be able to have the benefit of the courtroom technology to allow him to participate virtually. The trial was completed starting with the third day onwards, with only Mr. A. being physically present in the courtroom, along with court staff and a court security officer. No other trial participants were in the courtroom.

[9] Although this is a divorce proceeding, the clearance certificate was not available during the trial. The order below allows for the divorce to proceed on an undefended basis pursuant to r. 36. Only the applicant claimed a divorce.

[10] For reasons that follow, Ms. M. shall have sole decision-making responsibility for all four children and Mr. A. shall have parenting time with the children in accordance with the schedule, and conditions, as set out in the final order below.

BRIEF BACKGROUND

A. The Parents

[11] Mr. A. was born in Somalia. According to his evidence, he is university educated, having obtained both an undergraduate degree and a post-graduate degree in Italy.

[12] While in his mid-20s, Mr. A. moved to the United States (California), where he resided for approximately 14 years before coming to Canada. While in the United States, it was Mr. A.’s evidence that he was employed as a financial analyst. His employer was a large international firm.

[13] During his time in the United States, Mr. A. had two children, now adults, born in 1996 and 1997. Mr. A. testified that he separated from the children’s mother in 1999 and that there was a court order made in 1999 in California (San Diego) for shared custody. A copy of that order was not produced at trial.

[14] In 2002, Mr. A. came to Canada. He was transferred to Canada on a one-year contract with his employer.

[15] Mr. A. currently is not employed and he is in receipt of benefits under the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B.

[16] Ms. M. was born in Ethiopia. She eventually came to Canada and it was there that she met Mr. A.

[17] Both parties agree that, very soon after they met, they went through a form of marriage by way of a religious ceremony. A number of months later, the parties were married in a civil ceremony. The certificate of marriage confirms the parties were married in London, Ontario on October 2, 2009.

[18] Ms. M. went to college and was qualified to work as a personal support worker. She worked for a portion of the marriage.

[19] After the birth of their second child, Ms. M. did not return to work and devoted all her time to childcare. At the time of trial, Ms. M. was in receipt of Ontario Works.

[20] As discussed in more detail below, the parties had a complicated relationship with numerous separations, followed either by a resumption of cohabitation or the resumption of their relationship but not living together.

B. The Children

[21] The parties have four children as a result of their relationship: A., born […] 2010; J., born […] 2011; H., born […] 2014; and M., born […] 2016.

[22] A. and M. both have special needs. They were both diagnosed with autism. In addition, A. has a peanut allergy and uses an EpiPen.

[23] Each child’s diagnosis is confirmed by a medical report. The medical report regarding M. was dated February 17, 2020. A.’s medical report is not current as it is dated April 30, 2014, when he was age four. Both reports were filed as exhibits.

[24] I accept Ms. M.’s evidence regarding the special needs of A. and M., in relation to their autism diagnosis, and how that diagnosis affects their behaviour.

[25] It was Ms. M.’s evidence that A. requires 24 hour care. In Ms. M.’s home, the doors all have alarms. When Ms. M. goes outside with A., she holds his hand. When A. is dropped off at school, Ms. M. testified that she passes A. “hand-to-hand” to the education assistant. This means that Ms. M. will physically give A.’s hand to the education assistant when she drops him off at school.

[26] Ms. M., in relation to A., emphasized the need for close supervision; for example, if A. sees a bird, then he will chase it and that will occupy his full attention and he will not notice any danger, such as traffic.

[27] It was also explained that all the doors in her home are childproof and that A. is unable to open the doors.

[28] In relation to M., Ms. M. testified that M. also requires constant care. Ms. M., and also Mr. A., described M. as non-verbal. Ms. M. indicated that if M. is outside, that M. would not know where she is and that she has no awareness as to her own safety. If M. wants something, then she will pull Ms. M.’s hand towards the item that she wants.

[29] Ms. M. described a similar drop off routine at school for M. where there is “hand-to-hand” delivery to the education assistant.

[30] Both M. and A. have education assistants at school and both children attend a publicly-funded school.

[31] J. and H. attend a private Islamic school. Ms. M. explained that, for J. and H., the fulltime fee is $1,000 monthly but she receives $300 per month subsidy. It was her evidence, during cross-examination, that she pays for the schooling without contribution from Mr. A. Further, both J. and H. attend religious classes during the weekend. Ms. M. described that they both enjoy those classes and Ms. M. added that, if they miss a class, they will ask about it.

[32] Ms. M. described the school morning routine where she indicated that she would take J. and H. to school first and then take A. and M. to their school.

[33] It was Ms. M.’s testimony that, if she goes out with all four children, then she would usually take another person with her to assist. In relation to grocery shopping, however, she indicated that she could manage with all four. She explained that A. would always stay close to her and sometimes M. would be in the shopping cart, and that Ms. M. is able to manage safely.

[34] While Mr. A. acknowledged A. and M.’s special needs, he did not provide the same level of insight as did Ms. M. regarding the management of their special needs. Mr. A. was less concerned about A. running and wandering, than was Ms. M., claiming that he did not experience that behaviour with A. I prefer Ms. M.’s evidence.

C. Decision-Making Responsibility

(i) Legislation

[35] As discussed earlier, the granting of a divorce will be dealt with later and, accordingly, the final parenting order must be made pursuant to the Children's Law Reform Act, R.S.O. 1990, c. C.12 (the “Act”).[^1]

[36] Pursuant to the Act, a parenting order shall only take into account the best interests of the child and the court is required to consider all factors related to the circumstances of the child and, in considering the factors and circumstances of a child, the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

[37] The foregoing is set out in s. 24(1) and (2) of the Act:

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.

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.

[38] Section 24(3) sets out factors related to the circumstances of a child:

Factors

24(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.

[39] Section 24(6) states as follows regarding allocation of parenting time:

Allocation of parenting time

24(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

(ii) Legislation – Family Violence

[40] Section 18(1) of the Act defines “family violence” as follows:

“family violence” means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct

[41] Section 18(2) of the Act specifies certain conduct that constitutes family violence:

“Family violence”

18(2) For the purposes of the definition of “family violence” in subsection (1), the conduct need not constitute a criminal offence, and includes,

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

(b) sexual abuse;

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

(d) harassment, including stalking;

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

(f) psychological abuse;

(g) financial abuse;

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

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

[42] In considering the impact of family violence, the court shall take into account the factors listed in s. 24(4) of the Act:

Factors relating to family violence

24(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.

[43] Mr. A., over the years, has had an anger management issue exacerbated by a long-standing history of alcohol abuse. Mr. A. has subjected Ms. M. to his aggressive behaviour, verbal and emotional abuse, a death threat and damage to her property. The children have been present during, and witnessed, Mr. A.’s behaviour. I find that Mr. A.’s behaviour constitutes family violence. The details of Mr. A.’s behaviour are discussed below.

(iii) Credibility

[44] There was substantial conflict in the trial evidence between the parties as to the history of their relationship, including family violence, and parenting issues. I prefer, and accept, Ms. M.’s evidence throughout where it conflicts with Mr. A.’s evidence.

[45] Ms. M.’s evidence, given in a consistent and straightforward manner, was not undermined in any material way during cross-examination.

[46] Mr. A. was neither a credible nor reliable witness. At times, he was non-responsive to questions. He was argumentative. He was evasive. He engaged in prevarication when denying that he had been charged with uttering death threats against Ms. M., despite incontrovertible proof to the contrary, as discussed in more detail below.

(iv) The Parties’ Relationship

[47] The relationship, including conflict between the parties, as discussed below, represents findings of fact.

[48] Ms. M. gave a detailed chronological account of her relationship with Mr. A. and his behaviour. In contrast, Mr. A., who testified first, gave minimal detail, stating that there were a number of separations and attributing blame to Ms. M. for the separations.

[49] The parties have had a number of separations. I accept Ms. M.’s evidence that the separations were triggered primarily by Mr. A.’s behaviour due to alcohol abuse. I reject entirely Mr. A.’s evidence that sought to attribute the separations to Ms. M.’s alleged symptoms of postpartum depression or other alleged mental health issues.

[50] Ms. M. testified that she met Mr. A. in May 2009. At that time, he was not driving. Mr. A. was attending Changing Ways at that time. He told Ms. M. that he was “charged” with threatening his girlfriend. Mr. A. did not challenge Ms. M.’s evidence as to what he told her.

[51] There is some corroboration on this point from Mr. A.’s somewhat extensive criminal record listed in his form 35.1 affidavit sworn June 20, 2021. That affidavit discloses, inter alia, that in August and September of 2008 that Mr. A. was convicted of five criminal offences – criminal harassment (two counts), uttering threats, failure to comply with a recognizance and failure to comply with a probation order. The sentence for those offences included incarceration and probation. It was Ms. M.’s evidence, which I accept, that she had a conversation with Mr. A.’s probation officer in an effort to be supportive of Mr. A.

[52] Ms. M. recounted an incident that occurred in August 2010 when A. was six months of age. Mr. A. came home drunk. He wanted to pick up A. Ms. M. refused. Police were called and two officers arrived. Although no charges were laid, the police, after speaking with Mr. A., advised Ms. M. that Mr. A. was not coming back home that night.

[53] Mr. A.’s daughter, who had been visiting from the United States at the time, awoke as a result of the altercation. The next day, Mr. A. called Ms. M. and made a threat towards Ms. M. because the police had been called. This prompted Ms. M. to call police again as she was concerned as to what Mr. A. might do.

[54] After conversations with the police and after receiving some advice, Ms. M., who at the time was pregnant with their second child, took A. and Mr. A.’s daughter to a shelter.

[55] Ms. M. stayed at the shelter for a little over two months. However, Mr. A.’s daughter had a flight booked for her return and, after being in the shelter for approximately two weeks, Ms. M. took Mr. A.’s daughter to the airport. Ms. M. did have some contact with the daughter’s mother.

[56] Ms. M. explained that she was able to make arrangements to move into a housing unit with A. and she did so on leaving the shelter.

[57] Ms. M. testified that she and Mr. A. spoke with an Imam, that Mr. A. promised to change and was looking for a second chance. Within a month after being in the housing unit, Mr. A. moved in with Ms. M. and A.

[58] While living in this residence, Mr. A.’s behaviour reverted to his previous behaviour. He resumed drinking. Police had to be called on at least two occasions. Ms. M. described Mr. A. on one occasion as screaming and yelling in the early morning hours, with Ms. M. being unable to settle him down.

[59] As a consequence, Ms. M. made a plan. She contacted the shelter and then carried out her plan without telling Mr. A. She went with both children to a shelter. This occurred in or about approximately October 2011. J. had been born earlier that year.

(v) The Parties’ Relationship – October 2011 to July 2015

[60] After being at the shelter for approximately one month, Ms. M. was able to secure accommodation. She signed a lease and moved in with A. and J. The cycle then repeated. Mr. A. was telling Ms. M. that he wanted his family back. Another meeting occurred at the mosque involving the Imam and both parties. Mr. A. told Ms. M. that he can be the best father – that he would never disappoint Ms. M. again.

[61] Ms. M. testified that they got “back together.” It was approximately September 2012. However, Mr. A. would come and go. When he was not at home, he would stay at the last residence that they lived at. According to Ms. M., Mr. A. could be gone for three days and then he would return for two days. Ms. M. described this schedule continuing up to November 2013 when they purchased a home (“the matrimonial home”).

[62] Ms. M. was working at this time as a personal support worker. Mr. A. was not employed. The down payment came from Mr. A. There was a minor discrepancy as to the amount of the down payment, with Mr. A. indicating it was $28,000 and Ms. M. saying it was $25,000. Nothing turns on this discrepancy. Although the source of the down payment was not entirely clear, Ms. M. believed the down payment came from a personal injury settlement involving Mr. A.

[63] While living in the matrimonial home, it was Ms. M.’s testimony that Mr. A. continued with his pattern of regular absences. As she explained, sometimes Mr. A. could be gone for a week; at other times, he would be gone for several days.

[64] Mr. A. resumed his drinking. It was Ms. M.’s evidence that she would not allow him to drink at the matrimonial home so, instead, Mr. A. told her that he would go out to drink. Ms. M.’s evidence was that Mr. A. would stay at the housing unit that was rented after the first time she stayed at a shelter.

[65] While at the matrimonial home, Ms. M. described two incidents involving the police. The first incident took place when Mr. A. came home drunk at approximately 3 a.m. Ms. M. described Mr. A. as screaming, if she said anything.

[66] When the police came, they spoke to Mr. A. Ms. M. explained that the police “took him” and that Mr. A. returned home the next day when he was sober.

[67] Soon after the police attendance, a child protection worker from the Children's Aid Society attended at their home. Both Ms. M. and Mr. A. were home at the time. It was Ms. M.’s evidence that Mr. A. did the talking. He told the child protection worker, a female, that there were no problems. He told the child protection worker that she had no business being at their home. Ms. M. explained that she was not able to say anything.

[68] The child protection worker had come to their home after giving notice that she would be there. According to Ms. M., Mr. A. warned her not to volunteer information. He was concerned that, if they were to talk too much, then the Children's Aid Society might think there is an issue.

[69] The child protection worker was only in the home for approximately five minutes.

[70] Within the next day or so, the child protection worker called again and spoke to Ms. M. Ms. M. was alone and able to talk. Ms. M. had a conversation with the child protection worker and she told the child protection worker that Mr. A. had come home drunk, that he was yelling and that the children were sleeping.

[71] Ms. M. described a second police incident, which she indicated occurred in or about June 2015 (H. was born the previous September). Mr. A. came home drunk in the early morning. He was yelling. He was using foul language. It was Ms. M.’s evidence that she begged him to leave. Ms. M. called the police. According to Ms. M., the police took Mr. A. out of the house.

[72] As a result, soon after, a female child protection worker attended at the matrimonial home. Mr. A. was there. Ms. M. also was present. Mr. A. was not cooperative with the child protection worker; she was not allowed to enter the home and she left after a few minutes.

[73] Within the next day or so, two child protection workers, a male and female, attended. They had called first. It was Ms. M.’s evidence that Mr. A. told her to remain upstairs and that he would deal with the social workers. Ms. M. did as she was told. When the social workers came, she could hear the conversation. It was Ms. M.’s evidence that Mr. A. refused to let the social workers in, even though they said they had concerns. I do not accept Mr. A.’s reply evidence in-chief denying that he told Ms. M. not to speak to the child protection workers.

[74] Afterwards, it was Ms. M.’s evidence that she was able to connect with one of the child protection workers and arranged to meet the child protection worker alone.

[75] As a result of this meeting with the child protection worker, Ms. M. received some advice and was given some recommendations. It was Ms. M.’s evidence that she was told by the child protection worker that she needed to protect the children. It was Ms. M.’s evidence that she was later provided with an application for second-stage housing. Ms. M. testified that, in July 2015, that she moved with all three children into second stage housing.

[76] Ms. M. did elaborate somewhat on the discussions she had with the child protection worker. She was told that there were concerns dating back to 2010. She was told that this was the time to act if Ms. M. was prepared to leave with the children. Ms. M. also testified that she was told that if she did not decide to move, then the Society could take appropriate actions, including the removal of the children.

[77] Ms. M.’s evidence as to what the child protection worker told her is admitted not for the truth of the statements but, rather, for the fact that the statements were made and to assist in explaining what prompted Ms. M. to move into second stage housing with the three children.

[78] Upon leaving the matrimonial home on that occasion, it was Ms. M.’s testimony that she never returned to the matrimonial home. It was her evidence that Mr. A. rented the matrimonial home for a period of time and, afterwards, the matrimonial home was sold.

[79] After moving to second-stage housing in July 2015 with the three children, Ms. M. testified she had no contact with Mr. A. until January 2016. She did not disclose where she was. Soon after moving into second-stage housing, Ms. M. moved into to her current residence, where she continued to reside at the time of trial.

(vi) The Parties’ Relationship – July 2015 to April 2018

[80] In early January 2016, Ms. M. reconnected with Mr. A. This was initiated through Mr. A.’s friends. This led to several weeks of telephone contact between the parties, culminating in an in-person meeting between Mr. A. and Ms. M.

[81] The parties then resumed their relationship, although it was Ms. M.’s evidence that they were not living together. Mr. A. maintained his own residence. Mr. A. did acknowledge in his evidence that he obtained his own residence in 2015.

[82] Ms. M. raised with Mr. A. the importance of him being sober. It was Ms. M.’s expectation that Mr. A. would get treatment and that he would be sober for a year with no relapse.

[83] Similar to the past, Mr. A. began to stay at times at Ms. M.’s residence. He wanted to move in but Ms. M. refused. Mr. A. at times would stay overnight. Ms. M. did emphasize in her testimony that, when Mr. A. stayed at her home, that he had to be, and was, sober.

[84] During this time, Ms. M. was not working outside the home. As mentioned earlier, Ms. M. ceased employment when H. was born.

[85] Ms. M. indicated that Mr. A. might stay overnight maybe two times per week. Ms. M. would encourage Mr. A. to do things with her and the children.

[86] While Mr. A. cared for the children at times on his own, it was usually to allow Ms. M. to run errands, for example, to go to the grocery store. There was always a condition, enforced by Ms. M., that Mr. A. had to be sober.

[87] There was no set schedule to Mr. A.’s attendance at Ms. M.’s home or his care of the children. As Ms. M. explained, if Mr. A. was available to look after the children for a short while, then she regarded that as a “bonus.”

[88] Mr. A. never took the children to his residence during this time. Mr. A. did not appear to agree with this, but I prefer Ms. M.’s evidence. However, Mr. A. would take some of the children out in the community. If he took A., Ms. M. explained it was usually for a brief period, given the requirement for one-on-one attention for A. When M. was born in September 2016, Ms. M. agreed that Mr. A. cared for the three older children while Ms. M. was at the hospital to give birth to M. However, Ms. M. added that she went by ambulance to the hospital and was home within 24 hours.

[89] Notwithstanding the foregoing history of their relationship, it was Ms. M.’s evidence, which I accept, that she continued to be supportive of Mr. A. regarding treatment for his alcohol abuse. She testified that Mr. A. seemed to realize that Ms. M. was serious about this issue. Consequently, in early 2018, Mr. A. connected with Addiction Services of Thames Valley. Ms. M. was invited to one of the sessions. Ms. M. explained that her role was to support Mr. A. in his recovery.

[90] In February 2018, Mr. A. attended a three-week residential treatment program at Westover. He returned from that program in March. On his return, he stayed for a few days with Ms. M.

[91] Ms. M. explained that Mr. A. went to jail in March 2018. Ms. M. elaborated on this occurrence. She testified that Mr. A. told her that the police were looking for him. It was Ms. M.’s evidence that she took him to the “RCMP” station, at which time Mr. A. was taken into custody. Later, Ms. M. corrected herself by indicating it was the OPP station.

[92] It was Ms. M.’s evidence that the reason for the arrest was for a failure to comply with a condition of a recognizance and that the breach occurred in February 2018, just prior to Mr. A.’s attendance at Westover. Ms. M. stated that the Westover program commenced February 19, 2018.

[93] There is corroboration regarding this evidence as Mr. A.’s probation order, included in the exhibits, shows that Mr. A. was convicted of failure to comply with a recognizance, with an offence date of February 15, 2018.

[94] Mr. A. remained in jail for a month and was released in April 2018. On his release, Mr. A. gave as his address the apartment he was staying at.

[95] Mr. A. does not dispute Ms. M.’s narrative as to why Mr. A. was taken into custody soon after his completion of the Westover program.

[96] According to Ms. M., Mr. A.’s release conditions included no alcohol consumption and a curfew from 9 p.m. to 6 a.m. Mr. A. did not dispute this evidence either. It was Ms. M.’s evidence that she was aware of these conditions as Mr. A. told her what the conditions were.

[97] After his release, Mr. A. would visit Ms. M. once or twice per week. He would return home in order comply with the curfew and Ms. M. testified that at times she would drive him home.

[98] Ms. M. also testified, without dispute from Mr. A., that she attended court to be supportive of Mr. A. In order to assist in having Mr. A. released, she offered to be a surety for him but was declined because of her past incidents involving Mr. A. Ms. M. testified that she was able to get a friend of hers to be Mr. A.’s surety.

[99] Soon after Mr. A.’s release from jail, Ms. M. became concerned as she had not heard from Mr. A. during the course of a weekend. Ms. M. went to Mr. A.’s residence to check on him. In doing so, Ms. M. saw that Mr. A. was drunk and she could see beer bottles. It was after attending at Mr. A.’s residence that Ms. M. determined that their relationship was over and that she was “done with” Mr. A. This was in or about April 2018.

(vii) The Parties’ Relationship – Family Violence – May 2018 (Bus Stop Incident)

[100] According to Ms. M., J. would catch the bus to his private school. A neighbour had offered to take J. to the bus stop and the neighbour had been doing that for a while. That assisted Ms. M. as she had the other children to care for.

[101] In a phone call between J. and Mr. A., J. had told Mr. A. about the neighbour taking him to the bus stop.

[102] The following day, Mr. A. arrived at about 6:45 in the morning at Ms. M.’s home. This was approximately five minutes or so before the neighbour would arrive. The timeframe of this occurrence was in or about May 2018.

[103] When J. told Mr. A. that his neighbour takes him to the bus stop, Mr. A. began questioning J. Mr. A. began using foul language. The neighbour then attended. Mr. A. began to yell, curse and continued to use foul language now directed at the neighbour. Ms. M. testified that she could smell alcohol from Mr. A.

[104] Ms. M. indicated to the neighbour that he should run back home, which the neighbour did. Ms. M. witnessed Mr. A. chasing the neighbour to his home. Mr. A. returned to Ms. M.’s home but she refused to open the door and threatened to call the police.

[105] It was Ms. M.’s evidence that J., on witnessing Mr. A.’s outburst, said that he was afraid. He was shaking.

[106] As J. now had missed the bus, Ms. M. suggested to J. to stay home that day; however, J. wanted to go to school but, first, J. wanted to go to the neighbour’s home to apologize.

[107] Ms. M. then took J. to the neighbour’s home. J. indicated to the neighbour that he was sorry. The neighbour gave J. a hug. J. told Ms. M. that he was now ready to go to school and she drove him to school.

[108] Mr. A. did testify specifically regarding this incident during his reply testimony. Mr. A. claimed that he “caught” Ms. M. because she was not expecting him that morning. He stated he took J. to the bus every morning. In relation to the neighbour, Mr. A. described Ms. M. as being “unfaithful.” He testified “… no man can take my kid to the bus.” He acknowledged that he chased the neighbour down the street. He added that Ms. M. is married but that the neighbour is not married and he referred again to Ms. M. as being an unfaithful woman.

[109] Mr. A. did not deny specifically Ms. M.’s evidence as to his use of foul language and the fact that she could smell alcohol from him.

[110] I find that Mr. A.’s explanation of this occurrence borders on nonsense. His narrative, if believed, was that he surprised Ms. M., who was allegedly having some relationship with the neighbour. That evidence amounts to little more than irrational speculation.

[111] Mr. A.’s behaviour was indefensible. It amounted to family violence. Mr. A. caused his son, J., to be scared and upset by what J. had witnessed.

[112] What is quite noteworthy, and comforting, is the maturity and compassion displayed by J. when he wanted to go and apologize to the neighbour. Although no child should feel the need to apologize for a parent’s behaviour, I find it was appropriate, and child-focussed, for Ms. M. to allow J. to apologize, as clearly that made J. feel better.

(viii) The Parties’ Relationship – Family Violence – August 2018 Incident

[113] Mr. A.’s behaviour during this incident constitutes family violence. This incident starts with Ms. M.’s testimony that, on August 11, 2018, that Mr. A. called her and told her that he was coming over. She told him no.

[114] On his arrival, Mr. A. began kicking the door. Ms. M. activated the door alarm. Mr. A. told Ms. M., more than once, that he was going to kill her. Although the children were in the home, Ms. M. was not sure if they heard the threat. Ms. M. asked the children to go to another area of the house; Ms. M. then pushed a piece of furniture against the door. She called the police. The door and the doorframe were damaged by Mr. A. Some photographs depicting the damaged door and frame were filed as exhibits.

[115] Mr. A. provided the most detail regarding this occurrence during his evidence in-chief, while testifying in reply.

[116] Mr. A. testified that the day he called Ms. M., it was H.’s birthday. Mr. A. had a $200 gift certificate for H. that he had purchased from the Bay. Mr. A. got a ride from a friend. According to Mr. A., on arrival, Ms. M. refused to open the door to allow Mr. A. to give H.’s gift to her. Mr. A. testified that he kicked the door. He did acknowledge that he eventually paid a little over $120 as restitution to repair the door.

[117] Ms. M. indicated that the police arrived later, after Mr. A. had left. The police officer took a statement from Ms. M. and a neighbour. Later, Mr. A. was arrested and charged with mischief to property and uttering threats to cause death.

[118] Mr. A. was very clear that he was charged only with mischief to property regarding the damage he caused to the door. He falsely denied threatening Ms. M.’s life and he falsely denied that he was charged for uttering a death threat.[^2]

[119] It is noteworthy that H.’s birthday was over a month away – in September. I reject Mr. A.’s evidence regarding this incident where his evidence conflicts with Ms. M.’s evidence. Mr. A.’s probation order, dated April 30, 2019, referred to earlier and signed by Mr. A., confirms that on August 11, 2018 that Mr. A. was convicted of “utter threats to cause death” and “mischief not exceeding $5,000.00.”

[120] At the time the charges were laid, Mr. A. was released on conditions. Ms. M.’s evidence, not disputed by Mr. A., was that the conditions included no contact direct or indirect with Ms. M., Mr. A. was not to attend within a specified distance of Ms. M.’s residence and Mr. A. was not to contact the witness from whom police had taken a statement.

[121] As discussed in more detail below, under the heading “Parenting Time,” Mr. A.’s parenting time with the children following this incident, and until trial, consisted of supervised visits at Merrymount, virtual visits and some in-person visits with J. and H. that started in the summer of 2021.

(ix) Discussion and Decision Regarding Decision-Making Responsibility

[122] As noted earlier, Mr. A. seeks shared decision-making responsibility while Ms. M. seeks sole decision-making responsibility. The relationship between Ms. M. and Mr. A. has been plagued significantly by Mr. A.’s alcohol abuse, his aggressive behaviour, his verbal abuse and his criminal conduct. During their relationship, Mr. A. has displayed anger and verbal outbursts towards Ms. M. Although Mr. A. was attending Changing Ways when the parties met, there was no evidence tendered by Mr. A. in the form of a report from Changing Ways to corroborate his progress in that program.

[123] Mr. A.’s temper and anger are concerns. They are both contra-indicators to joint or shared decision-making responsibility.

[124] Mr. A.’s inability to regulate his anger and emotions, as described by Ms. M. during her evidence, surfaced during the course of the trial.

[125] During Ms. M.’s evidence, Mr. A. engaged in verbal outbursts, disrupting Ms. M.’s evidence. He was cautioned to refrain from doing so. At another point during Ms. M.’s evidence in-chief, Mr. A. interrupted her testimony, calling her a liar. Mr. A. became emotionally dysregulated to the point that the court requested that security remove Mr. A. from the courtroom and a recess was called.

[126] While giving evidence in reply, during his examination in-chief, Mr. A. became escalated and emotional to the point that it was necessary to call a recess to allow Mr. A. an opportunity to compose himself.

[127] Later, during his reply evidence, when being cross-examined on the offences with which Mr. A. was charged on August 11, 2018 and later convicted, Mr. A. began to question the relevance of that evidence and his behaviour again escalated to the point that the court requested security to remove Mr. A. from the courtroom. Mr. A. was told there would be a ten minute recess for him to compose himself. Mr. A. then uttered a profanity.

[128] The Merrymount notes, filed as exhibits, and constituting evidence as business records admissible for the truth of their contents, referred to a telephone conversation on October 20, 2018 between Mr. A. and a staff person at Merrymount. The purpose of the call was to arrange an intake appointment. During this conversation, Mr. A. was rude, used a profanity and Mr. A. was described as continuing to yell to the point that the Merrymount employee had to hang up the phone. During his testimony, Mr. A. did not attempt to defend his conduct.

[129] I find that Mr. A. has very limited insight into his anger, his violent and aggressive conduct, and the impact that this has had on Ms. M. and also the children over the years.

[130] Considering, in particular, factor (i) of s. 24(3), I find that there is no reasonable prospect that Mr. A. could engage in appropriate dialogue with Ms. M. regarding any aspect of decision-making responsibility for the children.

[131] Although Mr. A., at times during his testimony, said that Ms. M. is a good mother, while adding at the same time that he is a good father, there were other occasions when Mr. A. insulted Ms. M. during his testimony. On more than one occasion, he testified that he wished he had never met her. He referred to Ms. M. as a “liar.” He testified that she is “koo-koo.”

[132] Mr. A.’s treatment of Ms. M., over many years, demonstrates that Mr. A. has little or no respect for Ms. M. Further, control was important to Mr. A. He tried to muzzle Ms. M. when the child protection workers came to their home, in a vain attempt to shield his abusive conduct from child protection authorities.

[133] Regarding the factor in s. 24(3)(j)(ii), I find that the family violence perpetrated by Mr. A. is such that it would not be appropriate to require Ms. M. to cooperate with, or engage with, her abuser, Mr. A., as to issues relating to decision-making responsibility.

[134] Mr. A.’s alcohol abuse remains an issue. In his evidence, Mr. A. offered no credible explanation as to why he relapsed shortly after returning from the Westover program.

[135] While Mr. A., to his credit, did acknowledge that he had a drinking problem and that as a result he went to Westover, Mr. A. otherwise mustered only a facile explanation that he was no longer drinking and that in essence there is nothing to worry about. Mr. A. did indicate that he attends Alcoholics Anonymous meetings regularly.

[136] Given Mr. A.’s overall lack of credibility, I find that little or no weight can be given to his evidence that alcohol abuse now is no longer an issue, absent corroboration from a reliable third party source. No such evidence was tendered by Mr. A. Further, even on Mr. A.’s own evidence during his evidence in-chief, Mr. A. stated that he had not been drinking for eight months. That answer implies that Mr. A. was drinking up to eight months before trial.

[137] There is a palpable risk that Mr. A.’s judgment, when exercising any potential decision-making responsibility for the children, could be adversely affected given his longstanding-history of alcohol abuse. In particular, considering the special needs of A. and M., clear thinking and responsible decision-making are essential attributes that a parent must have. Mr. A. has been convicted of drinking and driving offences in 2007 and 2015.

[138] Regarding factor (d) of s. 24(3), I find that, overall, Ms. M. historically has been the primary caregiving parent for the children. This clearly was the case after Ms. M. left the matrimonial home in 2015. Even before then, given the parties’ chaotic relationship, there were periods of time when Mr. A. had little or no contact with Ms. M. and the children.

[139] Regarding factors (a), (b) and (h), Ms. M. has been a stalwart, consistent, reliable and attentive caregiving parent to all of the children. She has met all of the children’s needs, including having to take steps on far too many occasions to shield and protect the children from Mr. A.’s abusive behaviour. While Mr. A. has been an important person in the children’s lives, he has not had any significant role in exercising decision-making responsibility.

[140] A. and M. have special needs in relation to their autism diagnosis. I find that Ms. M. has been attentive and proactive in accessing services and assessments for A. and M. She will be the more reliable parent in continuing to meet A. and M.’s special needs. Further, as is discussed in more detail in relation to “parenting time,” both A. and M. are closely bonded with Ms. M. and look to her for comforting and nurturance when they are upset.

[141] Although Ms. M. gave evidence that was not complimentary to Mr. A., she did so in a straightforward and factual manner, with no attempt to berate or vilify Mr. A. Further, over the years, Ms. M. demonstrated a strong commitment to support and assist Mr. A. in addressing his alcohol abuse issues.

[142] Considering factor (c) of s. 24(3), Ms. M., I find, understands and respects Mr. A.’s role as the children’s father and the evidence suggests that she will promote the relationship between the children and their father in a manner that is safe for the children and in their best interests. In contrast, Mr. A.’s ability and willingness to support Ms. M.’s relationship with the children is compromised given his hostility towards Ms. M. over the years and his lack of respect for Ms. M.

[143] Regarding the primary considerations set out in s. 24(2), I find that Ms. M. is better able to ensure the children’s physical, emotional and psychological safety, security and well-being.

[144] I find that it is in the children’s best interests that Ms. M. have sole decision-making responsibility for the children.

D. Parenting Time

(i) Interim Orders

[145] Mr. A. commenced his application in September 2018 shortly after his arrest on the charges of uttering death threats and mischief to property. Soon thereafter, the court made an interim order on October 17, 2018.

[146] That order granted supervised access (now “parenting time”) to Mr. A. with all the children at Merrymount for as many hours as possible and as frequently as Merrymount had available.

[147] That order included a provision that, after six visits between Mr. A. and the children have occurred at Merrymount, then Mr. A. shall produce the reports and may return the motion for further access (parenting time).

[148] On April 26, 2020, a further interim order was made by the court. Merrymount was no longer providing supervised visits effective mid-March 2020 due to COVID-19. That order provided for Mr. A. to have virtual access (virtual parenting time) to the children every third day from 3:30 to 4:30 p.m. The order set out the procedure for implementing the virtual parenting time and included provisions that under no circumstances was Mr. A. to initiate the contact with Ms. M. or the children and under no circumstances was Mr. A. to communicate with Ms. M.

(ii) The Merrymount Supervised Visits

[149] The Merrymount records were quite extensive. As indicated earlier, they were admissible as business records. Ms. M. called as a witness the program coordinator for the supervised access program.

[150] Although both parties quickly contacted Merrymount to arrange for an intake appointment, Mr. A.’s intake appointment, which had been scheduled for December 12, 2018, could not proceed because Mr. A. was in jail on that date. As a result, his intake appointment was delayed until January 30, 2019.

[151] The Merrymount supervised visitation schedule, pre-Covid, in essence was alternate weeks on Saturdays for two hours.

[152] The first Merrymount visit occurred March 23, 2019. Until then, there had been no contact between Mr. A. and the children since his arrest in August 2018. The last supervised visit prior to the shutdown of the Merrymount program because of Covid occurred on February 29, 2020; after the Covid shutdown, there was one visit. In total, there were 13 supervised visits.[^3]

[153] Many visits did not go ahead because Mr. A. either cancelled the visits or he was a “no-show.” Cancellations by Mr. A., when they occurred, usually related to him advising Merrymount staff that he was not feeling well.

[154] Given that Mr. A. had visits on alternate Saturdays for two hours, it is difficult to understand, in relation to the “no-shows,” how it is that Mr. A. was unable to organize his time so he could attend at Merrymount to see his children.

[155] One of Mr. A.’s “no-shows,” on April 27, 2019, resulted from his own conduct. The Merrymount logs indicate that, in early May 2019, that Mr. A. telephoned Merrymount to advise that he had breached his curfew condition and, as a result, was incarcerated and unable to attend the visit. This is not the first time that Mr. A. has not been available for his children because he was in jail.

[156] For the June 8, 2019 visit, Mr. A. exercised bad judgment by bringing a female person with him to the visit. He described her as his girlfriend. However, he knowingly breached Merrymount’s rules as he gave no advance notice that he was going to bring someone and, further, Ms. M.’s consent was not obtained. Although the female person gave her name, she exacerbated the situation by refusing to provide identification to Merrymount staff. Mr. A. then began to speak in a raised voice, suggesting to Merrymount staff, wrongly, that he could bring whomever he wants to the visit. Eventually, Mr. A. did have his visit, alone, but not before a confrontation between himself and the female person whereby the latter threw what appeared to be a Tim Hortons food bag at Mr. A.’s face.

[157] It is noted that there was only one visit cancelled by Ms. M. because the children were ill and Ms. M. did give advance notice so that Mr. A. would know not to attend for the visit.

[158] On one occasion, being the visit on August 31, 2019, Mr. A. was late, arriving well past the 15 minute “grace period.” Ms. M. had arrived on time with the children and had already left. However, very reasonably, Ms. M. agreed to return with the children when Merrymount called her to advise that Mr. A. had now arrived.

[159] The Merrymount records constitute reliable third-party evidence as to the dynamics of the relationships between the children and their parents.

[160] Importantly, the special needs of A. and M., as a result of each child’s autism diagnosis, were readily apparent.

[161] There were a number of visits where A. was brought to Merrymount with his siblings but he refused to go and see his father. He would, at times, cry and say “No. Daddy.” He would refuse, on occasion, to go into the visit room to even say hello, despite being urged to do so by Ms. M. and Merrymount staff.

[162] On these occasions, A. did not want to be away from his mother.

[163] On other occasions, A. went with his siblings to the visit and he was able to engage with his father. To Mr. A.’s credit, on the visits that A. did attend, Mr. A. did the best he could to engage A., to be supportive of him and to make him feel happy to be there.

[164] At other times, A. would only come in and stay for a short while and then request to leave. Ms. M. would pick up A. early.

[165] M., on a number of occasions, displayed similar behaviour as her brother A. M., at times, did not want to go on the visit. She would stay by her mother. There was at least one occasion when Mr. A. asked staff to contact Ms. M. to come and pick up M. early from a visit. Ms. M. would always oblige any such requests.

[166] J. and H. always participated in all the visits. There was an improvement in M. attending the visits when the visits were changed to later in the afternoon, which would have been after M.’s early afternoon nap time.

[167] What was positive in the supervised visits was the level of engagement that Mr. A. had with all of the children. He played with the children; he hugged the children; he displayed affection towards the children; and he was prepared and brought snacks. Overall, the children enjoyed their parenting time with their father.

[168] Given the limited verbal capabilities of A. and M., Mr. A. had much more verbal engagement with J. and H. However, Mr. A. did his best when A. or M. or both were present at the visits to engage them, to sit beside them, to hold them and to hug them.

[169] On one occasion on M.’s birthday, she was in a stroller and, to cheer her up, Mr. A. came over to her and sang happy birthday to her, which caused her to smile.

[170] Also, Mr. A., to his credit, made no attempt to force A. or M. to stay for the visit, as he was cognizant of those children’s special needs.

[171] It was also very apparent that A. or M., at any given visit, could refuse to go and see their father. That is a consequence of their special needs. The Merrymount visits demonstrated that if either A. or M. were refusing to see their father, then it would not be in either child’s best interests to force the child to visit. This would result in anguish and emotional upset for the child.

[172] It was also evident that Ms. M. did everything that she reasonably could do to encourage A. and M. to visit their father when they were refusing to do so.

[173] During the visits, when they occurred, Mr. A. was focussed on the children and their needs. There is no doubt, based on Mr. A.’s interaction with the children during the supervised visits, that he loves his children and he wants to be a good and loving father for his children. While Mr. A. did, at times, have some challenges with A. and M., I find that that did not detract from the general overall positive nature of the visits.

[174] From mid-March 2020 until the end of August 2020, Merrymount cancelled supervised visits due to Covid.

[175] Following Merrymount’s closure, Mr. A. requested the children to be dropped off at his residence for visits, but Ms. M. refused.

[176] When Mr. A. brought a motion regarding parenting time, the result, as discussed earlier, was a one hour virtual visit every three days. I find that Ms. M. complied with that order.

[177] J. and H. always participated in the virtual visits, but A. and M. had limited participation given their special needs. At times, they would be reluctant to go on camera for the visit. Further, as indicated earlier, M. is non-verbal.

[178] Merrymount notified the parties in early September 2020 that supervised visits had resumed but that only one hour could be offered. A visit then occurred on September 12, 2020. Although Ms. M. brought all four children, A. refused to attend the visit but the other three children did visit with their father.

[179] Thereafter, there appeared to be some confusion between the parties as to which order was applicable, given that Merrymount had reopened its program. While Ms. M. thought they were returning to the earlier order for supervised visits, Mr. A. accused Ms. M. with failure to comply with the order for virtual parenting time. The result was that Mr. A. made it known to Merrymount that he was not attending for any further supervised visits and the parties then reverted to the virtual visits.

[180] Effective July 20, 2021, Ms. M. offered for Mr. A. to have in-person parenting time with J. and H. from noon to 5 p.m. on alternate Saturdays and this was implemented. Ms. M. agreed that these in-person visits were positive. The visits for A. and M. continued to be virtual.

(iii) Parenting Time – Discussion and Decision

[181] Much of the earlier discussion regarding decision-making responsibility, including the earlier discussion regarding the factors in s. 24(3), applies in relation to parenting time.

[182] Mr. A., in his draft proposed order as indicated earlier, suggested equal parenting time for all the children, while Ms. M., in her amended draft proposed order, suggested that, each weekend, J. and H. should have in-person parenting time with Mr. A. every Saturday and that M. and A. should have in-person parenting time with Mr. A. every Sunday. During oral submissions, Ms. M. proposed some expansion of that parenting time proposal.

[183] In considering the factors in s. 24(3), I find that Ms. M. has a strong bond and relationship with all the children. Given M. and A.’s special needs, they each look to her for comfort and security, and ask where she is when she is not there. That was evident during the supervised visits. As discussed earlier, there is a lengthy status quo with Ms. M. being the primary caregiver for all four children. Historically, when the parties were living apart, there were prolonged periods of time when Mr. A. had no contact with the children.

[184] Regarding factor (f), both parents adhere to the Islamic faith and there is some similarity between the parents as to their cultural background.

[185] When considering Mr. A.’s plan of care, I find that it does not meet the children’s best interests. Also, it is a radical departure from what the children have been accustomed to.

[186] Mr. A.’s plan ignores, entirely, that he is unreliable. As discussed earlier, there was a significant period of time when Mr. A. would come and go as he pleased – days he would be present, then days he would be gone. The only constant and reliable caregiver was Ms. M.

[187] Mr. A. demonstrated, through his “no-shows,” that he could not be counted on even to attend supervised visits with his children for two hours once every two weeks.

[188] Mr. A.’s plan would create distress and anxiety for M. and A., given their special needs. Also, Mr. A. has no credible track record of being able to cope with all four children at the same time. I find that Ms. M.’s proposal to have separate parenting time for A. and M., at this time, is in their best interests and meets their special needs.

[189] I consider, also, Mr. A.’s criminal record. The degree of Mr. A.’s involvement in the criminal justice system, to date, creates a palpable risk that he could again be unavailable for the children due to criminal behaviour.

[190] Mr. A.’s criminal record, as disclosed in his form 35.1 affidavit, showing 14 convictions from 2007 to 2017, is not accurate. Mr. A. fails to include the four convictions set out in his probation order, having offence dates of August 11, 2018 (utter threats to cause death and mischief not exceeding $5,000), February 15, 2018 (fail to comply with recognizance) and April 5, 2019 (fail to comply with recognizance).

[191] The instability posed by Mr. A.’s alcohol abuse has been discussed earlier and is a factor in determining parenting time.

[192] A significant issue is overnight access. Ms. M., with her knowledge of Mr. A.’s drinking habits, testified that Mr. A.’s pattern is to drink in the evenings. I accept Ms. M.’s evidence in that regard. Further, I agree with Ms. M. that it is not in the children’s best interests to provide for any overnight visits at this time. In addition, given M. and A.’s special needs, and considering the evidence relating to the supervised visits, it is most unlikely that M. and A. could tolerate being away from Ms. M. on an overnight basis at this time.

[193] The order below prohibits Mr. A. from consuming alcohol 24 hours prior to and during his parenting time. However, Mr. A. has demonstrated a past history of flagrant disregard and disrespect of court orders, as evidenced by the fact that nine of Mr. A.’s eighteen criminal convictions are for breach of recognizance or breach of probation. While court orders are not suggestions, and must be obeyed, I cannot overlook the risk to the children if Mr. A. has been drinking prior to or during parenting time. For that reason, the order below gives Ms. M. the discretion to terminate Mr. A.’s parenting time, to the extent as explained in the order, if there is evidence that Mr. A. has been drinking.

[194] The order below does represent increased parenting time for all the children. In relation to A. and M., the order includes in-person parenting time but contains a number of conditions necessary to meet A. and M.’s special needs. Regarding safety, this includes the requirement that Mr. A. first ensure that the doors in his apartment are child-proof and that door alarms are installed. Mr. A., during his reply evidence, agreed with the latter. Mr. A. resides in a high rise residential building.

[195] Flexibility is required for A. and M. The order below includes conditions allowing Ms. M. to cancel an in-person visit when the children are refusing to attend.

[196] The serious issue as to Mr. A.’s anger management is addressed in the order below by requiring Mr. A. to attend an anger management course.

[197] The evidentiary record is such that it is not possible, at this time, to anticipate what future changes need to be made to Mr. A.’s parenting time with the children. There is added complexity given M. and A.’s special needs. It is unknown today how those special needs will change, if at all. Also unknown is whether Mr. A. will stabilize his lifestyle, whether he can address successfully his anger management issues, whether he will maintain relapse prevention regarding alcohol abuse and whether he will avoid further involvement with the criminal justice system. Consequently, to assist the parties, the order below incorporates a pathway for the parties to consider in relation to any future changes to the parenting order.

[198] Regarding the primary consideration set out in s. 24(2), I find that the order below in relation to parenting time ensures the children’s physical, emotional and psychological safety, security and well-being.

[199] Considering the factors in s. 24(3), I find that the parenting time set out in the order below is in the children’s best interests.

ORDER

[200] I make the following final order:

1. Ms. M. shall have primary care of, and sole decision-making responsibility for, all four children, A., J., H. and M. (“the children”). Ms. M. shall have parenting time with the children at all times except when this order provides that Mr. A. shall have parenting time with the children.

2. Mr. A. shall have parenting time with J. and H. every Saturday from 10 a.m. to 6 p.m. Mr. A. shall ensure that J. and H. attend all their religion classes when they are in his care.

3. Subject to paragraphs 4, 5 and 6 of this order, Mr. A. shall have parenting time with A. and M. as follows:

(a) alternate Sundays with M. from 2 p.m. to 5 p.m.;

(b) alternate Sundays with A. from 2 p.m. to 5 p.m.; and

(c) the alternate Sundays shall be structured such that Mr. A. has parenting time with M. alone on one Sunday and, the following Sunday, Mr. A. shall have parenting time with A. alone, and the Sundays shall alternate in that manner.

4. Subject to paragraphs 5 and 6 of this order, after M. and A. each have had eight individual visits, on eight alternating Sundays as provided in paragraph 3 above, then Mr. A.’s parenting time with M. and A. shall change to both children having parenting time together with Mr. A. on each Sunday from noon to 6 p.m.

5. Mr. A.’s parenting time with M. and A., as set out in paragraphs 3 and 4 above, is subject to the following terms and conditions:

(a) if either child exhibits significant distress in attending the parenting time, to the point that it is not reasonably possible to have the child attend the scheduled visit if so determined by Ms. M., then Ms. M. shall have the discretion to cancel the scheduled visit for that child;

(b) if a visit is cancelled, there shall be instead later that day a 45 minute virtual visit, with the time to be arranged between Mr. A. and Ms. M., or failing same, as scheduled by Ms. M.;

(c) the Sunday parenting time for M. and A. together from noon to 6 p.m., for the first six such visits, shall be subject to the following:

(i) Mr. A. shall pick up A. at noon on Sunday;

(ii) at 3 p.m., Ms. M. shall attend at Mr. A.’s residence to pick up A. and drop off M.; and

(iii) Ms. M. shall pick up M. at 6 p.m. from Mr. A.’s residence; and

(d) the parties are free to make any necessary adjustments in Mr. A.’s parenting time with M. and A., on consent, and as may be necessary to meet M. and A.’s best interests.

6. All of Mr. A.’s parenting time with M. and A., as set out in paragraphs 3, 4 and 5 above, is subject to the following overriding terms and conditions:

(a) the parenting time as specified in paragraphs 3, 4 and 5 shall not come into effect until Mr. A. has provided evidence that all doors in his residence, including any balcony doors, have been fitted with alarms, and also have been fitted with mechanisms to prevent M. or A. from opening the doors;

(b) Mr. A. shall provide proof to Ms. M. that the alarms and locking mechanisms have been installed by providing copies of receipts for the installation cost and providing digital photographs showing the installations; and

(c) until subparagraphs (a) and (b) have been complied with, then Mr. A.’s parenting time with M. and A. shall instead be every Sunday for two hours at a child-focussed location in the community, as specified by Ms. M., and both parties shall attend at that location at the beginning of the parenting time for the drop off and Ms. M. shall attend at that location at the conclusion of the parenting time to pick up M. and A., but if Ms. M. chooses, she may remain at the location during Mr. A.’s parenting time.

7. Mr. A. shall have virtual parenting time every Wednesday with all the children for one hour, from 4 p.m. to 5 p.m., but with Ms. M. to have the right to adjust when the virtual parenting time shall occur, depending on school schedules and depending on when the children arrive home from school.

8. All of Mr. A.’s parenting time with all the children, whether in-person or virtual parenting time, shall occur in London, Ontario unless Ms. M. agrees otherwise in writing, and is subject to the following terms and conditions:

(a) Mr. A. shall not consume alcohol 24 hours prior to parenting time and during parenting time;

(b) at the beginning of Mr. A.’s parenting time, if Mr. A. does not present as sober, or if in the event of in-person parenting time, Ms. M. detects that Mr. A. has alcohol on his breath, then Ms. M. has the discretion to cancel Mr. A.’s parenting time on that occasion;

(c) at the conclusion of Mr. A.’s parenting time, if Mr. A. does not present as sober, or if in the event of in-person parenting time, Ms. M. detects that Mr. A. has alcohol on his breath, then Ms. M. has the discretion to cancel Mr. A.’s next scheduled in-person parenting time;

(d) if Mr. A. has breached subparagraph (a), or if Mr. A. does not present as sober, or if Ms. M. detects that Mr. A. has alcohol on his breath in the circumstances set out in subparagraphs (b) and (c), then Ms. M. is at liberty to commence a motion to change, and to bring an urgent motion, to request that Mr. A.’s parenting time with the children shall be supervised at Merrymount – Family Support and Crisis Centre;

(e) except where specifically provided elsewhere in this order, for all of Mr. A.’s in-person parenting time, Mr. A. shall pick up the children at Ms. M.’s residence at the beginning of his parenting time, and Ms. M. shall pick up the children from Mr. A.’s residence at the conclusion of his parenting time;

(f) in relation to all in-person parenting time for M. and A., Mr. A. shall ensure that no other person is present, unless Mr. A. first has obtained Ms. M.’s consent, in advance and in writing, for such person to be present;

(g) except in the case of an emergency, for all in-person parenting time, Mr. A. shall confirm to Ms. M., via text or email, by 6 p.m. on the day prior to the scheduled parenting time that he will attend the parenting time, failing which the parenting time is deemed cancelled, unless Ms. M. agrees via text or email that the parenting time should occur; and

(h) if it is in the children’s best interests, especially in relation to M. and A., to conclude Mr. A.’s parenting time earlier than scheduled, then Mr. A. shall advise Ms. M., via text or email, and Ms. M. shall attend to pick up the children earlier than the scheduled conclusion of the parenting time.

9. During the school summer holidays, Mr. A. shall have additional parenting time with the children as follows:

(a) with J. and H., from 10 a.m. to 6 p.m. one weekday each week, with the parties to agree on the weekday, and failing agreement, as specified by Ms. M.; and

(b) with M. and A., commencing in 2023, one weekday each alternate week from noon to 6 p.m., on the same terms and conditions as set out in subparagraphs 5(a) and (b) above, with the parties to agree on the weekday, and failing agreement, as specified by Ms. M.

10. Mr. A. shall have additional parenting time with the children during March break as follows:

(a) commencing 2022, with J. and H., one weekday from 10 a.m. to 6 p.m.;

(b) commencing 2023, with M. and A., one weekday from noon to 6 p.m., on the same terms and conditions as set out in subparagraphs 5(a) and (b) above; and

(c) the parties shall agree as to the weekday, failing which the weekday shall be specified by Ms. M.

11. Mr. A. shall have additional parenting time with the children during the school Christmas vacation as follows:

(a) commencing 2022, with J. and H., one weekday in each of the two weeks from 10 a.m. to 6 p.m.;

(b) commencing 2022, with M. and A., from noon to 6 p.m., one additional weekday during the entire two weeks, on the same terms and conditions as set out in subparagraphs 5(a) and (b) above; and

(c) the parties shall agree as to the weekday, failing which the weekday shall be specified by Ms. M.

12. The parties shall cooperate and make reasonable arrangements for Mr. A. to have reasonable parenting time with the children during any other school holidays throughout the school year, the children’s birthdays and any other special occasions, including religious celebrations.

13. On the presentation of a copy of this signed and issued order, Mr. A. shall be entitled to request and receive all information regarding the children, including medical information and educational information. Without limiting the generality of the foregoing, Mr. A. shall be entitled to contact medical and educational service providers to obtain all information pertaining to the children. Ms. M. shall sign all consents and directions that may be necessary for the medical and educational service providers to release such information to Mr. A.

14. Neither Mr. A. nor Ms. M. shall denigrate or speak negatively towards the other or about the other in the presence of any of the children.

15. All communications between Mr. A. and Ms. M. shall be limited to communications regarding the children and shall be polite and respectful.

16. Mr. A. shall do the following:

(a) within one year of the date of this order, Mr. A. shall complete an anger management program;

(b) Mr. A. shall select the anger management program in consultation with his counsel and the service provider; and

(c) within one year of the date of this order, Mr. A. shall provide to Ms. M. a copy of the report from the facilitator of the anger management program, confirming the total number of sessions in the program and the total number of sessions attended, confirming Mr. A.’s progress in the program, and confirming that Mr. A. successfully completed the program.

17. Full compliance with paragraph 16 above shall constitute a pre-condition to any further expansion of Mr. A.’s parenting time with any of the children.

18. After a period of at least one year following the date of this order, the parties shall make best efforts to discuss any expansion of parenting time, including overnight visits, but subject to the following considerations:

(a) whether Mr. A. has complied with paragraph 16 above in relation to completion of the anger management program;

(b) whether Mr. A. has provided credible corroboration that he has not consumed alcohol, and where such corroboration is not limited to but may include a medical report from a treating physician, a report from an organization specializing in providing services for the treatment of substance addiction, or a series of negative random tests for the presence of alcohol;

(c) in relation to M. and A., whether an expansion of parenting time is in their best interests, having regard to each child’s autism diagnosis;

(d) whether Mr. A. has had any further involvement with the criminal justice system; and

(e) both parties shall give consideration to a process of mediation or other form of alternative dispute resolution to assist the parties in arriving at a resolution.

19. This final order is made pursuant to the Children's Law Reform Act.

20. The title of this proceeding is amended to correct the spelling of Ms. M.’s middle name to “H[…]”

21. The claim for divorce is severed and shall proceed pursuant to r. 36 of the Family Law Rules.

22. If the parties are unable to resolve the issue of the costs of this proceeding, then each party may serve written costs submissions, not to exceed 3 typed pages (2 typed pages for reply), double-spaced, minimum font 12, together with copies of any offers, time dockets and bills of costs, and with any reference to cases to be by hyperlink. The costs submissions shall be forwarded through the portal in the usual way, with Ms. M. to forward her costs submissions within two weeks, Mr. A.’s responding costs submissions to be forwarded within two weeks thereafter and reply, if any, by Ms. M. to be forwarded within two weeks after the due date of responding submissions. If the parties have settled costs, then counsel shall forward a brief letter to the trial coordinator advising of same.

“Justice Victor Mitrow”

Justice Victor Mitrow

Released: February 16, 2022

COURT FILE NO.: FC1494/10-4

DATE: February 16, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

D.M.A.

Applicant

- and -

A.H.M.

Respondent

REASONS FOR JUDGMENT

MITROW J.

Released: February 16, 2022

[^1]: A final order for corollary relief cannot be made under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) unless a court has granted a divorce under the Divorce Act: see Rothgiesser v. Rothgiesser, 2000 CanLII 1153 (ON CA), [2000] O.J. No. 33, 2 R.F.L. (5th) 266 (Ont. C.A.); and Okmyansky v. Okmyansky, 2007 ONCA 427 (Ont. C.A.).

[^2]: The following is from Mr. A.’s evidence during his examination in-chief, as part of his reply evidence, on September 29, 2021, taken from the transcript, page 24, lines 12-18: “… And I kicked the door. I went through the court for that and then let’s be clear. Where she say utter threat, I’m not being charged utter threat. I been charged breaking the door. What they call mischief or something. And the fine was a $120. I already paid that. So, I – I don’t understand when she testified and she said I been charged for uttering a threat. I didn’t utter a threat to her.”

[^3]: According to the Merrymount records, filed as exhibits, the in-person visits occurred as follows: 2019 – March 23, April 6, May 4, June 8, July 20, August 3, August 31, September 14, November 9 and December 7; and 2020 – February 15, February 29 and September 12.