COURT FILE NO.: FC-11-126-2

DATE: 2022/02/09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Lee-Anne BOUCHER

Applicant

– and –

James “Howard” WALKER

Respondent

Paul Fitzgerald for the Applicant

Ronan Blake for the Respondent

HEARD: November 18, 2021

decision on parenting time

SOMJI J.

Overview

[1] The father James Walker (“father”) brings a motion for an interim order that one, increases parenting time with his 11-year old daughter O.B.W. (“child”) in accordance with a parenting schedule agreed to in 2012; two, provides make-up parenting time for missed visits; three, requires the mother to execute authorizations for him to access information about his child from school and medical professionals; four, requires both parties to provide sufficient notice of travel plans and obtain written consent before travelling with the child; and finally, sets his child support payable in the amount of $108/month in accordance with his 2020 income and the Child Support Guidelines, O. Reg. 391/97 as am.

[2] The mother Lee-Anne Boucher (“mother”) requests the motion be dismissed, and in the alternative, requests an order maintaining the terms and conditions set out in an earlier Order dated October 27, 2020, plus additional terms to safeguard the child before parenting time can resume. The mother argues that the father has not abided by the parenting schedule and conditions agreed to in 2012 and that parenting schedule is no longer in the child’s best interests. If the court is inclined to revise the parenting schedule, the mother requests that the father one, take a parenting course catered to the child's age and developmental needs; two, secure a parenting coach to help him understand parenting on an ongoing basis; and three, return to reunification counselling with Janet Claridge that started and was agreed upon in the fall of 2020.

[3] The issues to be decided are:

Should the motion be dismissed as requested by the mother?
Is the mother responsible for the status quo and the father’s missed parenting time?
Is it in the best interests of the child to grant the father parenting time, and if so, what should the terms and schedule be?
What is owed in child support arrears and what child support should be paid going forward?

Evidence

[4] In addition to the parties’ factums, I have relied on the following materials:

Father’s affidavit of June 29, 2021 and reply affidavit of November 15, 2021.
Affidavit of Kim Mercer, friend of the father, dated November 4, 2021.
Mother’s affidavit of November 11, 2021.
Affidavit of Reunification Counsellor Janet Claridge dated October 18, 2021.
Father’s financial statement dated November 9, 2021.
Court endorsements dated October 19, 2020, and December 2, 2020, and court Order dated October 27, 2020.

Background Facts and Procedural History

[5] According to the mother, the parties were in an eight-month relationship from June 2009 to January 2010. They never married. The mother states they broke up in January 2010, but that she was already pregnant. In July 2010, they had a child O.B.W. The father provides a different account. He states they resided together, and he was asked to leave the home in November 2010 when the daughter was four months old.

[6] The mother reports that the father initially denied parentage, but a paternity test later confirmed he was the child’s father. The mother initiated court proceedings to obtain child support and other relief.

[7] The mother states that the father had anger issues during their relationship and because of his angry outburst and aggression, she directed him to stop attending her home in January 2010. The breaking point, she states, came when the father threated to kill her dog in front of her nine year old son from another relationship. The mother states the father’s aggressive and threatening conduct continued to be part of the father’s approach to parenting. She reports that the father and his own father, who died in 2020, were a pair of highly aggressive and litigious individuals. She provides examples of the father’s conduct in her affidavit which is discussed further below.

[8] In the initial court proceedings, the parties obtained a report from the Office of the Children’s Lawyer. Justice Kershman also ordered the father to take a parenting course. The father completed the course, but the mother reports that things did not really change. On September 27, 2012, the parties entered into Partial Minutes of Settlement (“Minutes”) that settled parenting terms on a final basis, and which was converted to a formal Order issued by Justice Kershman. Only the Minutes were filed. The Minutes provided for both parents to have joint decision-making with the child and set out the father’s parenting schedule for O.B.W., who was two years of age at the time, as follows:

a) Every second weekend from Friday at 4 pm until Sunday at 6 pm; and

b) Every Tuesday and Thursday from 4 pm to 7 pm.

[9] There was a condition in the Minutes requiring the father not to expose O.B.W. to his parents. The father takes the position that that the mother would only agree to the Minutes if that condition was included.

[10] The father alleges that the mother sabotaged his parenting time over the years by unilaterally cancelling weekend visits, planning alternate activities during parenting time, or refusing access. Some of his grievances with the mother are:

a) The father organized a birthday party for his daughter, but the mother would not allow the daughter to attend. The father does not specify which year this was.

b) The mother surreptitiously took O.B.W. on a cruise in Mexico without the father’s authorization. He had only consented for her to go to Florida.

c) The mother took the child to Bahamas in 2017 and to Cuba in 2018 without his consent.

d) The mother unilaterally withheld parenting time from him in 2019.

[11] The mother provides a different account of events. She states the father did not abide by the Minutes or parenting schedule and ultimately, parenting time stopped in April 2019. Some of the issues that arose were as follows:

a) The father exposed O.B.W. to her grandparents by taking her regularly to the cottage which was his parent’s primary residence.

b) The father spent many winters in Florida, leaving for months at a time and making several trips a year. He would not notify the mother and would simply stop showing up for his parenting time. On one occasion, the father left his dog in the mother’s garage to care for without notifying her.

c) In 2018 and 2019, the father went to Florida for longer stretches leaving after Thanksgiving and coming back just before Easter.

d) When in Ottawa, the father would often cancel weekend visits if the child had something to do such as attend a birthday party rather than let her attend and accommodate the parenting time accordingly.

e) The weekday visits dwindled quickly. The father was working delivering pizzas and would often miss the visits citing work as the reason.

[12] In 2018, O.B.W. started competitive gymnastics which took up much of her time. According to the mother, the father refused to take O.B.W. to gymnastics and blamed the mother for his reduced parenting time rather than altering his schedule to accommodate the child’s activities. The father reports he was not allowed to attend her gymnastics’ sessions.

[13] In April 2019, O.B.W. was invited to a friend’s party. The father told her she was to go with him to the cottage instead until Sunday. The child insisted on going to her friend’s party. The father got mad and hung up on the child. Two days later, the mother received a call from the Children’s Aid Society (“CAS”) indicating they had received reports from the father about concerns with the household. The father accused the mother of drinking and having men over. Both parents, the child, as well as the mother’s 18-year old son were interviewed.

[14] The CAS worker reported that the father told his doctor that his daughter had reported these concerns to him. O.B.W. denies she ever said such things. The father takes the position that he confided in his doctor in April 2019 and it was the doctor who, unbeknownst to him, called CAS. A letter from the doctor confirms this.

[15] CAS reported to the mother that O.B.W. had told her during their interview that she is scared of her father and is uncomfortable sleeping at his home because there is no bed for her, and she has to sleep with him. The child also reported discomfort with the father smoking in the house when she was there. CAS ultimately determined the father’s call was done with ill will.

[16] After the father’s involvement of the CAS, O.B.W. wrote a letter to her father and refused to see him. The mother did not hear from the father for 10 months and until he brought a motion to change on February 13, 2020. During those 10 months, the father did not call, send a gift for birthdays or Christmas, and never reached out to the child either directly or through the mother. The mother states in her affidavit that:

The next we heard from the Respondent after the CAS complaint was nearly 10 months later, upon being served with this Motion to Change.

[17] The mother’s account is not entirely accurate. The father filed text communications from June and July 2019 as exhibits to this affidavit that indicate he was reaching out to O.B.W. during this time and trying to maintain his parenting time and understand why she was refusing to see him. In one text, sent via the mother on July 11, 2019, the child states “I don’t want to talk to you right now but thank you for the happy birthday.” Nonetheless, the father does not dispute that he was effectively absent during these 10 months because he wanted to give O.B.W. time to heal and because of health and safety concerns from the COVID-19 pandemic.

[18] The father brought a motion on February 13, 2020, to reinstate parenting time. He argues the mother is at fault for cancelling visits, planning alternate activities during his parenting time, and refusing him access to the child. In his materials, the father does not address the missed visits over the years due to his own travel to Florida for the winter months.

[19] The father takes the position that the mother is motivated to delay matters, unilaterally terminate all parenting time, and have a parenting schedule or reunification plan that provides her with sole discretion over parenting. The father takes the position that he requires a defined and enforced parenting schedule in order to have any parenting time with O.B.W.

[20] On October 19, 2020, the matter proceeded to a case conference before Associate Justice Fortier. The parties came to an agreement to reinstitute some very limited parenting time for the father and for the father to engage in reunification counselling to repair his relationship with O.B.W. The mother was agreeable to sharing the costs for reunification counselling with the father. Supervised parenting time was organized for one hour on Saturday October 24, 2020, and the parties agreed to work on an agreement to arrange for additional parenting time in accordance with O.B.W.’s best interests. On October 27, 2020, the agreement was formalized into a Temporary Order issued by Justice Labrosse on consent of the parties.

[21] In December 2020, Janet Claridge was confirmed as the reunification counsellor. She provided an affidavit and two letters summarizing her interactions with the parties and in particular, her observations of the father and child.

[22] Ms. Claridge reported that O.B.W. who was 10 at the time, was articulate, cooperative, pleasant, and thoughtful in her responses. Ms. Claridge was able to speak to her about her reasons for ceasing her visits with her father and the letter she wrote expressing her concerns in April 2019. O.B.W. explained that while she enjoyed activities with her father, she was uncomfortable expressing her feelings with him and scared of his reactions. She indicated when she told her father things she did not like, he was dismissive about it. She identified particular things she disliked such as her father smoking in the car or house while she was there. Although she agreed to start seeing her father again in October 2020, she stated that past issues had not been dealt with, and she was still worried and nervous about his reactions and behaviour.

[23] Ms. Claridge met with the father by Zoom on December 9, 2020. She reports that the father was defensive and dismissive about child’s feelings. He became angry, ranted, and yelled. His response to his child’s wish that he does not smoke in the house was that it was not illegal and that “I smoke but she farts so we are even.” The father was not able to acknowledge the child’s feelings, take responsibility for his actions, apologize, or listen to her wishes. During the Zoom session, the father’s friend Kelly Hill got on the call and tried to calm him down. Ms. Claridge reports that the father did call later to apologize.

[24] Following this meeting, Ms. Claridge advised the court by letter dated December 10, 2020, that she could not recommend that visits advance to lengthy periods of time or overnights. It was her recommendation that the visits be limited to every weekend for 1-2 hours. Ms. Claridge reported to the court that she was scheduled to meet with the father again.

[25] Ms. Claridge held another meeting on December 17, 2020, with O.B.W. where she had her identify in writing her concerns with her father. O.B.W. indicated she did not like that her father had called CAS or said mean things about her mother such as the “B” word. Ms. Claridge then had a face-to-face meeting with both the father and O.B.W. to discuss these concerns. During the meeting, Mr. Walker brought out a letter from the doctor indicating that it was the doctor that called CAS and that this was not his fault. He also said that he does not talk about the mother in front of the child, but Ms. Claridge observed that he continued to blame the mother at the meeting and in front of O.B.W. why he had not seen her for a year and a half.

[26] During the meeting, O.B.W. also shared with her father that she did not like that he was speeding when he drove and there were instances where police pulled them over to which the father responded that he was not given a ticket half the time and so this was a non-issue. Ms. Claridge observed that the father had difficulty recognizing the child felt unsafe or his role in making her feel unsafe.

[27] The meeting continued to deteriorate. Before O.B.W. finished reading her concerns, the father got up and said he was done listening to her complaints, that he loved her, and that if she did not want to see him, he would not force her. He was loud. Ms. Claridge suggested a break and the father said he was leaving. After he left, the child burst into tears and was shocked by her father’s departure.

[28] When the father returned, Ms. Claridge spoke to him about him listening to O.B.W.’s concerns, taking responsibility, and building trust. The father stood up and said he did not want to force O.B.W. and if she did not want to come, he would not see her anymore. He said he was done with court and was going to set the child free. When Ms. Claridge asked him if he wanted to hear the child’s responses, he replied he heard she did not want to see him. He blamed the mother again and then proceeded to tell Ms. Claridge that this was all her fault. He told Ms. Claridge that she was a “snake” for bringing up feelings and everything was fine until she became involved. He threatened to make a complaint. He was loud and emotional. Ms. Claridge instructed him to leave. Ms. Claridge later took the child out to her mother who was waiting for her in the parking lot. The father was parked in his car. He drove away only when the mother and Ms. Claridge left.

[29] Ms. Claridge reports that the father told her he had made a decision not to see or call the child and therefore, it was her understanding that Mr. Walker would not be seeing the child on any future weekend visits or holidays. She reported Mr. Walker’s position to the mother.

[30] Ms. Claridge is willing to continue working with the family provided the father listens to the child, takes responsibility for his actions, and acts appropriately so as not to make the child feel uncomfortable and scared by his outbursts.

[31] The father referred minimally to reunification counselling in his original affidavit. He stated that “we attempted family reunification therapy for a short period of time, however the pent-up frustration at being marginalized to such a serious degree impeded the productivity of it,” and he has not recommenced sessions since. The father did not acknowledge his inappropriate conduct both with the child and the reunification counsellor. He states that the rift between him and his child is entirely the result of years of marginalization by the mother.

[32] In his Reply affidavit the father states that Ms. Claridge asked inappropriate questions and chastised him for drinking a can of coke which he found off-putting. He states that he felt sideswiped by Ms. Claridge’s approach at the second meeting and became emotional because his father had died. He states he only left the meeting because he did not want to cry in front of O.B.W. If that was the case, he certainly did not tell that to Ms. Claridge upon his return after the initial outburst or upon his abrupt departure the second time. He also did not contact Ms. Claridge following the meeting to explain or apologize for his conduct.

[33] It is unclear what transpired following the events in December 2020. The father states his counsel contacted the mother to recommence parenting time in the spring of 2021 via multiple letters but received no response. The mother wrote to counsel on March 29, 2021 and indicated she would not deal with the father in writing, but no further details were discussed. The father retained new counsel on July 29, 2021 and again on November 9, 2021. On November 9, 2021, the father filed this motion to reinstitute parenting time.

[34] The father disagrees with the mother’s account of events. In his Reply affidavit, he denies spending months out of the country. He states there was a mutual decision to stop the weekday visits when the child started school and that he was not allowed to attend and watch his child’s gymnastics. He maintains that any reduction in parenting time was due to the mother. If this were in fact the case, I note that the father made no attempts to reinstitute or revise the parenting schedule that was agreed upon in 2012 until February 2020.

Issue 1: Should the motion be dismissed?

[35] The mother requests that the motion be dismissed because the father has disobeyed the court Order dated October 27, 2020, requiring him to attend reunification counselling with his daughter, and therefore, he should not be permitted to skip over that essential step and move directly to parenting time with the child.

[36] It is important to note that the Order issued by Justice Labrosse on October 27, 2020, was an order made on consent of the parties following their case conference with Associate Judge Fortier. At that time, there was an agreement that the father would commence reunification counselling which would assist the parents in negotiating further parenting time going forward. The reunification counselling was put in place to try and restore the father-child relationship and ascertain the child’s wishes with respect to future visits given the unresolved issues the child herself had identified between her and her father. Until that is done, it is difficult for the parents, or even this Court, to determine what an appropriate parenting schedule might be since the child’s views and preferences are an integral part of the best interests of the child analysis.

[37] I agree with the mother that it is not in the best interests of the child to reinstitute parenting time (reasons discussed below) without the father engaging in reunification counselling and further consideration of what, if any parenting schedule, would accord with the child’s best interests. On the other hand, the mere fact that reunification counselling failed with Janet Claridge does not constitute a willful intention by the father to disobey the court Order and therefore, does not preclude this Court from considering the father’s motion.

[38] The father did attempt reunification counselling. He explains it failed because of his pent-up frustration with not seeing his child and his emotional state following his father’s death. In his Reply affidavit, the father indicates he is agreeable to trying reunification counselling again but wishes to try it with another counsellor. The father sought out and offered to pay and use counsellor James Vickers, but states that the mother has refused. Father’s counsel wrote a letter to the mother in February 2021, almost a year ago, indicating the father was prepared to recommence reunification counselling with another counsellor. I find these efforts are not indicative of someone disobeying a court Order.

[39] I am well aware that the mother prefers to continue reunification counselling with Ms. Claridge because the child is comfortable with her. In addition, the parties have completed the intake sessions with Ms. Claridge, and it would also be more cost efficient to continue with her. Ms. Claridge has indicated she is agreeable to continuing with this family. Nonetheless, given the breakdown of the relationship between the father and Ms. Claridge and the father’s highly inappropriate and condescending remarks to her, I find that it would not be constructive to force the father to continue reunification therapy with Ms. Claridge. If the father is sincere about his willingness to rebuild his relationship with his daughter, and if there is any prospect of success that reunification therapy will assist in repairing that relationship, it is best that the father have a fresh start with either Mr. Vickers, or if he is unavailable, with another reunification counsellor that is mutually agreeable to both parties.

[40] While I recognize that the current situation has been brought on by the father’s own misconduct at reunification therapy, it is now approaching three years since the father has had any meaningful contact with his child. The parties’ deadlock since December 2020 over which reunification therapist to use to move this matter forward is not in the best interests of this child should she wish to restore and maintain a relationship with her father. For this reason, I disagree that reunification counsellor should proceed only with Ms. Claridge or that the father’s motion should be dismissed in its entirety.

[41] Having said this, it is also unrealistic for the father to expect that not having seen his child for now almost three years, that the Court would reinstitute the parenting schedule from 2012 without a rigorous examination of whether that parenting schedule is still in the child’s best interests. Counsel for the father cites the bests interests’ factors under s. 24(2) Children’s Law Reform Act, (CLRA) R.S.O. 1990, c.C.12, as am, but provides no analysis of why these factors favor a return to the 2012 parenting schedule. No consideration is given to the fact that this parenting schedule is now 10 years old and the circumstances of this child have entirely changed. No consideration has been given to the fact this child has not seen her father for a very lengthy period, has identified unresolved issues with him, and was exposed to a disastrous reunification session with her father where he dismissed her feelings and walked out on her.

Issue 2: Is the mother responsible for the status quo and the father’s missed parenting time?

[42] Before addressing whether it in the best interests of O.B.W. to have parenting time with her father, I will address the father’s argument that the mother is to blame for the father’s lack of parenting time since 2012.

[43] The father argues that the mother has disregarded the child’s best interests and engaged in a course of conduct that has alienated the child from her father. The applicant argues the mother created a status quo where the father has been marginalized as a result of the mother’s unreasonable and unilateral actions in denying him parenting time. Counsel for the father states that the mother is “emboldened” to make unilateral decisions on parenting because there have been no repercussions to the consequences of her actions.

[44] I respectfully disagree. I do not accept the father’s evidence that between 2012 and April 2019, the father’s lack of parenting time was entirely the mother’s doing. Moreover, if that was the case, the father could have during those years brought a motion to have the mother respect the parenting schedule set out in the 2012 Minutes which permitted him two weekday visits and alternate weekend visits. He brought no such motion to either revise the terms of the agreement or if the mother was in breach, to have the terms enforced.

[45] It was only after the involvement of the CAS in April 2019 that parenting time ceased for an extended period. The decision to end parenting time in April 2019 was not the mother’s doing but a direct result of the child writing to her father about why she did not wish to see him and precipitated by the father’s remarks about the mother’s household and involvement of the CAS. This is evident in the texts the father filed as an exhibit to his affidavit where the child indicates she does not want to see the father in the spring and summer of 2019. In fact, the mother informs the father that O.B.W. is writing him a letter about her feelings, and that despite her own frustration with the father, the mother tells the father she has encouraged O.B.W. to speak with him. The father disputes that he never saw the child’s letter until these court proceedings. Nonetheless, he chose of his own accord after April 2019 to minimize his contact with the child for a period of 10 months because he wanted the child “to heal” and because of COVID-19 health restrictions.

[46] I also note that once the father reinitiated contact and brought a motion in 2020 to reinstitute parenting time, the mother agreed to start visits, albeit on a gradual basis. Given that in October 2020, the child had not seen her father for over a year and had expressed concerns about visiting her father, it was only natural that parenting time would be reinstituted on a gradual basis. Both parties agreed to a Temporary Order dated October 27, 2020, to reinstitute a parenting schedule in accordance with the child’s best interests and reunification therapy between the father and child. It was the father’s own inappropriate conduct at reunification therapy in December 2020 that resulted in further alienating the child from him. In short, the current status quo is of the father’s own doing and cannot be attributed entirely to the mother.

[47] The father invokes the maximum contact principle to substantiate his clam for increased parenting time. As pointed out by counsel for the mother, recent revisions to family law legislation have revoked the maximum contact principle and the notion that the courts should support maximum contact between a child. The focus is instead on the child’s best interests; that a child should have has much time with each parent as is consistent with their best interests. As stated in T.P. v. A.E., 2021 ONSC 6022 at paras 150-151:

150 …. It is in the best interests of a child to have a meaningful relationship with both parents and not to be exposed to conflict or family violence: Pereira v. Ramos, 2021 ONSC 1737 (“, at para 26.

151 While there is no presumption of equal parenting time, the maximum contact principle provides that a child should have as much time with each parent as is consistent with the best interests of the child: Divorce Act, s. 16(6); Bembenek v. Bembenek, 2019 ONSC 4050; Kirichenko v. Kirichenko, 2021 ONSC 2833.

[48] Finally, the father requests make-up parenting time for visits missed over the last 10 years in the manner of an additional weekend each month for 12 months and 4 non-consecutive weeks in the summers. The father’s affidavit speaks in generalities and does not delineate what specific visits were missed, why they were missed, and why his proposal is commensurate with the parenting time he lost. There is no sound basis upon which to grant this relief.

Issue 3: Is it in the best interests of the child to have parenting time with her father and if so, on what terms and schedule?

[49] Parenting time is to be determined in accordance with the child’s best interests. Sections 24(1), 24(2), and 24(3) of the CLRA, set out the factors to be considered as follows:

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.

Factors

(3) Factors related to the circumstances of a child include,

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

i. Section 24(2) CLRA: the child’s physical, emotional and psychological safety, security and well-being.

[50] The paramount consideration is the child’s physical, emotional, and psychological safety. In this case, the child has expressed to her father her fears and discomforts with visits. She refers, for example, to the uncomfortable sleeping arrangements, the father’s driving, the father’s angry outbursts directed to others, his unkind comments about her mother, and his smoking.

[51] The father’s response, as confirmed by Ms. Claridge during the reunification therapy, has been dismissive. The father has not demonstrated any empathy towards his daughter. While he has made some corrections indicating he no longer smokes and a bed is available for her, he needs to demonstrate he has taken into account her concerns regardless of whether he believes they are or are not merited.

[52] Until this Court can be assured the child feels emotionally safe and secure in the presence of her father, it is not in her best interests to have parenting time with him.

ii. Section 24(3)(e) CLRA: Child’s views and preferences

[53] The child’s wishes are an important consideration. They become increasingly important as the child gets older, but are not necessarily determinative particularly if the views are not expressed independently: Children's Aid Society of Haldimand and Norfolk v. J.H. and M.H, 2020 ONSC 2208 at para 64.

[54] O.B.W. is now 11 years old. She was described as “articulate” and “thoughtful” in her responses and has been able to express her views both in writing and in person. She wrote a letter to the father in the spring of 2019, attached as an exhibit to the mother’s affidavit, that she is mad at him because he lies and makes her feel uncomfortable. His yelling and screaming scares her. He smokes in the car and house, hurting her lungs.

[55] Her sentiments were corroborated by Janet Claridge who reported that O.B.W. told her independently in December 2020 that she did not want to see her father until he addressed some of her feelings and concerns. This did not happen at reunification counselling. Rather, the father left, and she broke down in tears.

[56] On the other hand, there is no evidence that O.B.W. has indicated that she never wants to see her father again, and she did agree to participate in reunification counselling. With the support of her mother, reunification counselling is still possible and could mend the relationship.

[57] At this point, the evidence suggest that the child is reluctant to see her father. The Court would be in a better position to assess the child’s wishes after reunification counselling has commenced. Reunification counselling will provide the child a further opportunity to express her views and for the parties and Court to assess whether the father is receptive to those views and prepared to make the necessary accommodations to ensure the child feels safe when visiting him.

iii. Sections 24(3)(a) and (d) CLRA: history and stability of the child

[58] The child has been in her mother’s primary care since birth and in her exclusive care for the past three years. As a result of the father’s missed parenting time, he has not been a significant influence in her life. The child has not been in the father’s unsupervised since April 2019.

[59] The child is approaching her teen years, likely entrenched in her school and social life, and probably involved in extracurricular activities. Disrupting that stability in an abrupt and unreasonable manner by ordering parenting time is not in her best interests. It is evident from the pleadings that conflicts in parenting time arose because the child wanted to partake in gymnastics and be with her friends on the weekends whereas the father wanted to take her to the family cottage. If parenting time is eventually restored, the parenting schedule will have to accommodate for the child’s needs and schedule in her teenage years.

iv. Sections 24(3)(j) and 24(4) and (5): Consideration of family violence

[60] While the facts are contested, the Court cannot ignore the mother’s evidence that there has been a history of emotional family violence. The mother cites the following examples:

a. Threats from the father and grandfather to bankrupt her, “come get me” and commenting that she was “succubus”, a rather derogatory term.

b. Approaching the mother from behind during a court hearing in 2012 and telling her she was “fucked” to the point that Justice Kershman stopped the hearing and made the court reporter relay what was said.

c. Throwing O.B.W. at the age of one from outside the sliding door of a van into the child’s car seat such that the child was airborne for a few feet.

d. Refusing to sign a travel consent so the mother could take O.B.W. to see her parents in Florida as a result of which she had to bring a court motion.

e. Refusing to sign a consent in February 2019 to allow the mother to travel with her parents and take O.B.W. on a Disney cruise. At the parenting exchange, the screamed at the mother to “smarten up” and that he wasn’t signing a consent. When he finally did, he teased her about it holding it front of her head. The father’s antics occurred in front of the child.

f. In July 2018, the father called the mother an “asshole” in front of O.B.W. and said that he was dying before speeding away with the child in the car. The child phoned her mother later that night from a friend’s place to ask if she was okay.

[61] As a result of the concerns with the father’s conduct and parenting, Justice Kershman ordered the father to take a parenting course which he completed, but the mother claims changed little. The mother’s evidence suggests that the father is quick to anger and is aggressive. This is corroborated by Ms. Claridge’s own observations of him during reunification therapy.

[62] The father’s disposition to anger has been directed not only to the mother as she alleges but appears to be directed towards the child. During the reintegration counselling, the mother reports she could hear the father yelling and took notes of him stating the following to O.B.W.

(a) “You realize who the bad guy is” (referring to the mother).

(b) “You are a free agent.”

(d) “You worry about a lot of ifs. You worry about my driving.”

(e) “You do what you want.”

[63] As pointed out by counsel for the mother, if this is how the father behaves when in the presence of an adult professional, what is he like when there are no restraints.

[64] The Court must consider that even if the violence described to date has not been physical, the type of emotional and psychological abuse described by the mother and corroborated by Ms. Claridge can have a devastating impact on children.

[65] Until the father can demonstrate he is willing to refrain from angry outburst and emotional abuse, it is not in the best interests of O.B.W. to have parenting time with him.

v. Sections 24(3)(a), (b) and (h) CLRA: Parent’s relationship with child and ability to care for and meet the needs of the child

[66] The child currently has no meaningful relationship with her father. The father has not provided any evidence that he has addressed the concerns identified by the child during visits. The father has not taken any parenting courses. He has not reached out to the child to apologize for what transpired at reunification counselling or promised to do better in the future.

[67] On the other hand, the father states in his affidavit that he wants to be involved in his daughter’s day to day life and that he is deeply saddened that he is unable spend time with her. He indicates they have had good times in the past and some of this is referenced in his texts to her in inviting her to come enjoy time with him at the cottage in Norway Bay. His long time friend, Kim Mercer, who has known O.B.W. also provided an affidavit with her observations of the father’s love for her during family visits and his efforts at making her a priority during their visits. Ms. Mercer also states that O.B.W.’s absence in his life over the past few years has been very painful for the father, and more so now that the child is the remaining member of his family.

[68] I accept the father’s evidence, corroborated by Ms. Mercer, that he does love his daughter and is committed to repairing the relationship with her. This factors weighs in favour of granting parenting time, but given the rift that has developed over almost three years, I am not satisfied that parenting time can be reinstituted without interventions to ensure the child’s comfort and safety during parenting visits.

vi. Sections 24(g) and (f) CLRA: Plans of care and the child’s cultural, linguistic, religious, and spiritual upbringing and heritage

[69] Counsel for the mother points that that the father’s pleadings do not address any clear plan of care including arrangements for how he will house, feed, or transport the child. Counsel for the mother states that the Respondent’s affidavit is a laundry list of complaints against the mother and the wrongs he believes have been committed against him. Very little, if any, focus is given to the child’s needs and care.

[70] The father’s pleadings do not focus on long term care of the child. On the other hand, the obstacles to parenting time in the past have not been related to the father’s financial means or ability to care for her. Rather, parenting time appears to have collapsed because of the father’s absenteeism, conflicts over schedules, and the father’s conduct during the parenting time. It is on these issues that the father will have to focus his attention to reinstitute parenting time.

vii. Section 24(3)(i) CLRA: Ability of parents to communicate and co-operate with conditions of a court order and to support the other parent’s relationship with the child.

[71] The Court has some concerns with the father’s ability to comply with the conditions of a court order. The mother has provided clear examples of the father’s failure to abide by the 2012 Minutes and parenting schedule and conditions. Given the father’s poor performance at reunification counselling with Ms. Claridge, the mother has little confidence that the result would be any better with another counsellor. In addition, Ms. Claridge noted that during reunification therapy, the father spent a considerable amount of time blaming the mother in front of the child while stating he does not talk about the mother in front of the child. O.B.W. has also remarked that she does not like it when the father speaks about the mother and some of the offensive names he has called her.

[72] While compliance by both parents with the 2012 Minutes is contested, the mother has demonstrated she is able to comply with recent court orders. The mother did comply with the October 27, 2020, Temporary Order. She facilitated the father’s supervised visit with O.B.W. on October 24, 2020. She participated in the intake for reunification counselling and took her daughter to the reunification sessions. The mother continues to support reunification counselling despite her frustration and disappointment with the father’s conduct at the last session. She states she is prepared to attend and make O.B.W. available for ongoing counselling with Ms. Claridge.

viii. Section 24(3)(a) CLRA: Child’s relationship with other siblings and family members

[73] There is no evidence that the child has step siblings at her father’s residence.

[74] While it is important to encourage the child’s relationship with her extended family, it should only be done in circumstances where the child feels emotionally safe and secure. The mother had expressed concerns in 2012 about the child’s exposure to the paternal grandparents. It is unclear if this extends to the other aspects of the paternal family. There is insufficient information in the pleadings to adequate assess the weight of this factor.

[75] In summary, upon considering the best interest factors on the basis of the evidence filed, I find that is not presently in the best interests of O.B.W. to have parenting time with her father. If reunification therapy is successful, the Court can revisit the issue of parenting time upon hearing the recommendations of the reunification counsellor, ascertaining the views of the child, assessing whether supervised or unsupervised parenting time can be reinstituted on a gradual basis, and determining a parenting schedule that accords with the developmental age of the child and the child’s bests interests.

[76] If after several sessions of reunification counselling, the counsellor recommends and the child agrees to some form of virtual, supervised, or unsupervised in-person parenting time, the matter may be remitted back to me for review without the need to bring another motion.

[77] The father’s application for an interim order reinstituting parenting time in accordance with the parenting schedule in the 2012 Minutes and the father’s request for make-up time is denied.

[78] There will be an interim Order that:

a. The father’s parenting time with O.B.W. as set out in the Minutes of Settlement dated September 27, 2012, is suspended until further order of this Court.

b. The father shall attend for reunification counselling with James Vickers, or if he is unavailable, with another reunification counsellor that is mutually agreeable to both parties.

c. Reunification counselling shall commence no later than 30 days from the date of this Order.

d. The father shall pay for the costs of reunification counselling.

e. The mother shall facilitate reunification counselling between the father and O.B.W. by cooperating with all intakes and meetings requested by the counsellor, facilitating virtual counselling sessions between the father and daughter, and taking O.B.W. to and from the reunification counselling sessions if such sessions are to be held in person.

f. The father shall attend any parenting or anger management courses recommended by the reunification counsellor.

g. A copy of this decision shall be provided to the reunification counsellor.

[79] Given I have found that the breakdown in the relationship between the father and the child is largely attributable to the father’s own misconduct, and it is the father who is insisting on the change in counsellor, the father shall pay for the costs of counselling going forward.

[80] Finally, I decline to make an order directing the mother to execute authorizations necessary to allow the father to make inquires with and be given information from the child’s teachers, school officials, doctors, dentists, health care providers or other individuals involved with the child at this time. Clauses 1 and 2 of the 2012 Minutes provide for joint decision-making to both parents and for the mother to sign the necessary authorizations to allow the father to access information about O.B.W. from educational and medical professionals. Those provision remains standing. The father has not provided evidence that these provisions have been breached nor has the mother indicted she wishes to revise those conditions. The mother has not sought sole decision-making responsibility over the child although the evidence would suggest that she has been the de facto decision-maker for O.B.W. these past few years.

[81] Similarly, clause 22 of the 2012 Minutes addresses the requirement for consents to be obtained for travel with O.B.W. While there have been conflicts over consents and travel, this issue was also not adequately addressed in the parties pleading to determine the parties’ respective positions on this issue and why it should be changed.

Issue 4: What is the appropriate amount of child support arrears and child support to be paid on a going forward basis?

[82] The father seeks an Order that he pay Guideline child support in the amount of $108 per month based on his 2020 line 150 income of $16,486 per year. He claims his total income for 2019 and 2020 consisted solely of social assistance payments in the amount of $15,257 and $16,486.91. In the event that he no longer receives social assistance benefits, he asks that his income be imputed to the amount he was receiving in 2020 for the purposes of calculating child support.

[83] The father is also prepared to pay for s. 7 expenses in proportion to his income.

[84] The father states that he has Crohn’s disease and severe arthritis as a result of which he is on disability leave. He states he has been on disability for several years and has no prospect of returning to work. He anticipates living off his father’s inheritance and a limited government disability pension.

[85] The father acknowledges he has child support arrears. He understands that child support in the amount of $84/month was payable since the fall of 2020. He says that he has attempted to e-transfer this amount but the mother has refused to accept it. He also provided a $6,000 lump sum cheque to the mother, on a without prejudice basis, for any arrears, but the mother would not cash the cheque. The father had to request his counsel to write to the mother’s counsel to ask that the cheque be cashed. The father states it is highly disingenuous and misleading for this mother to suggest that he does not pay child support when she refuses to accept the payments. He states that the mother also refused to accept gifts and a $500 cheque for O.B.W. for Christmas.

[86] The mother takes a different position. She states that the father stopped paying child support in March 2016, over 6 years ago. She states that she pleaded with him for financial assistance at the time because she had been laid off, but he did not provide her any assistance. She states the father has not paid child support despite having considerable financial resources. She argues that while the father claims an annual income of only $16,932.00, he has a house in Arnprior, a full cottage/home on the water in Norway Bay, Quebec, and a condominium in Clearwater, Florida. The mother questions how the father is managing to carry these significant expenses and his travel to and from these locations.

[87] Following the December 2, 2020, case conference, the father was required to provide disclosure about his sources of income. The mother reports that she has not received a single document from the Respondent in follow up to that hearing.

[88] Neither of the parties’ materials adequately address the issue of child support arrears and on-going child support. The mother’s factum does not outline what her position is on child support arrears, and if she is seeking arrears, for what period and when she notified the father. There is no response to the father’s claim that he attempted to pay child support and that his gifts to the child were rejected, and if so, why they were rejected by the mother particularly given that child support is the right of the child. In addition, it is unclear if the mother is contesting the Guidelines support payable going forward because she has not received adequate financial disclosure or because she believes the father has other sources of undeclared income.

[89] Similarly, the father’s factum fails to clearly stipulate what child support arrears the father believes he owes, how they were calculated, and what precisely he has paid towards those arrears. Simply indicating a $6,000 cheque was sent to the mother provides little assistance to the court in assessing the issue of arrears. Furthermore, the father’s materials do not respond to the mother’s claim that arrears are owing to 2016 rather than just the fall of 2020 as the father suggests. Finally, there is no reference in the father’s financial statement to the other properties the mother believes he owns and whether any of those properties earn any income. The father indicates he intends to live off, in part, his father’s inheritance. If other properties were recently inherited by him, there is no indication when they were inherited and whether they earn income.

[90] Based on the materials provided from both parties, the Court is not in a position to make findings on the issue of child support arrears or ongoing child support. The parties are encouraged to try and resolve these issues, failing which they may file brief written submissions setting out clearly their respective positions taking into consideration the legal framework set out by the Supreme Court of Canada in Coluci v Coluci, 2021 SCC 24, on the requirements for seeking, calculating, and assessing child support arrears.

Costs

[91] The mother is the successful party on this motion. If the parties are not able to settle the issue of costs, submissions can be filed in writing. They shall not exceed two pages, exclusive of the Bills of Costs and Offers to Settle. The mother shall file her submissions by February 24, 2022, the father by March 10, 2022, and the mother will have until March 17, 2022 to reply. Please email the submissions to scj.assistants@ontario.ca and to my attention.

Somji J.

Released: February 10, 2022