COURT FILE NO.: FS-21-00022108-0000 DATE: 20230327 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MATTHEW ROBERT HABUDA Applicant – and – TAYLOR HABUDA Respondent

Counsel: Daniel G. Katzman, for the Applicant Mary Anne Ducharme, for the Respondent

HEARD: October 5, 6, and 7, 2022

REASONS FOR ORDER

HOWARD J.

Overview

[1] There are two interim motions before me concerning the applicant father’s parenting time.

[2] The applicant father, Matthew Robert Habuda, was born on February 14, 1990, and is currently 33 years of age.

[3] The respondent mother, Taylor Habuda, was born on September 16, 1996, and is currently 26 years of age.

[4] The parties were married on July 14, 2018. There is one child of the marriage, Jaxson Xavier Habuda, born February 1, 2021. Six months after Jaxson’s birth, the parties separated on August 4, 2021. As such, their marriage was less than three years’ duration.

[5] At present, Jaxson is just over two years of age.

[6] The central issue on the motions is whether the applicant father’s parenting time with Jaxson should be supervised in accordance with the step-down plan recommended by the Windsor-Essex Children’s Aid Society (“WECAS” or the “Society”), as proposed by Matthew. The respondent mother rejects the Society’s recommended plan and maintains that Matthew’s parenting time should occur at a supervised access centre (if at all).

[7] The hearing of these interim motions was held by special appointment on October 5, 6, and 7, 2022, in person at Windsor. In accordance with the order of Bondy J. dated May 20, 2022, the evidence was restricted to the affidavits previously filed by the parties, the viva voce evidence of Ms. Tara Ivancic of the Society, the viva voce evidence of Mr. Patrick Hansor, and the video recording of the investigation interview of the applicant father that was conducted by the Ontario Provincial Police (“OPP”) on September 29, 2016.

[8] I pause to emphasize that neither the applicant father nor respondent mother gave viva voce evidence at the hearing of the special appointment. Their evidence was given solely by way of written affidavits. Counsel for neither party conducted any questioning or cross-examination of the party opposite on their affidavits.

Factual Background

[9] I do not propose to review all of the evidence tendered at the hearing. There is no need to repeat all of that detail here. While the parties should know that I have considered all of the evidence presented, my written decision deals with the particulars of the material evidence only insofar as necessary to determine the legal issues in dispute or provide sufficient context for an appreciation of the determination of those issues.

Background

[10] Given the claims raised against the applicant father and (to some extent) his parents, it is appropriate to review some of Matthew’s family history.

[11] Matthew was born in Windsor, Ontario. In 1969, his father immigrated to Windsor from Yugoslavia, at the age of just eight years. Mathew’s parents met at school and married in 1988, raising three children, being Matthew, the eldest, and his younger brother and sister. Matthew’s parents have been married for some 33 years now. His father is an architect, employed with the Facility Management Department at Chrysler (Stellantis Canada). His mother works full time within the home.

[12] After Matthew completed secondary school, he attended the health sciences program at Wayne State University in Michigan for two years. He then attended Liberty University, a private Baptist university in Virginia, and obtained a degree in health promotion in 2015.

[13] Taylor attended Redeemer University, a private Christian university in Ancaster, Ontario, from 2014 to 2018.

[14] During the summers of his schooling years, Matthew had worked at Chrysler as a temporary part-time (TPT) worker. Upon graduation, Matthew obtained a full-time position at Chrysler as a production worker, where he continues to be employed on a full-time basis.

[15] Matthew and his family have been longstanding members of the Grace Baptist Church in Windsor. In 2008, when Matthew was 18 years of age, he transferred to the Banwell Community Church in Tecumseh, as he was attracted to the youth program there.

[16] Mathew and Taylor met through the youth program at Banwell Community Church, in or about 2009, when Taylor was 12 or 13 years of age. They began dating in the summer of 2015, when Taylor was just shy of her 19th birthday and Matthew was 25 years of age.

[17] Taylor and Matthew became engaged in 2016 and married in July 2018, when Matthew was then 28 years of age and Taylor was 21 years of age. They had known each other for about nine years before they were married.

Summer 2016

[18] Of central concern for present purposes are the allegations surrounding an incident that occurred in the summer of 2016 involving Matthew and a young male, whom I will call “J.L.” J.L. was believed to be 12 or 13 years of age at the time of the alleged incident.

[19] At the time, Matthew was residing with his parents at their home in Belle River and was working full-time at Chrysler. He was also serving as one of several youth group leaders at the Banwell Community Church. His recollection was that there were approximately 20 young persons, ranging in ages from 12 to 18 years, in the church youth group. The youth group activities would typically involve outings such as bowling, watching movies, camping, and similar activities, in both large and small group settings.

[20] The evidence of Matthew was that on one such occasion in the summer of 2016 an outing was planned for an overnight event with two youths, during which they would pitch a tent in the backyard of Matthew’s parents’ residence, for a camping-like event. The overnight event was approved by the parents of both children and by the youth group pastor of the Banwell Community Church. The evidence of Matthew was that, just prior to the scheduled event, one of the two children was disciplined and “grounded” by his parents and was therefore unable to attend. As such, the other child, J.L., attended the event alone, and the event proceeded as scheduled, including the sleepover in the tent in the backyard of the parent’s home.

[21] Following the sleepover in question, Matthew was contacted by officials of the Banwell Community Church and was advised that J.L. had made allegations that (a) Matthew had masturbated in his sleeping bag in the tent while in the presence of J.L.; (b) Matthew had allowed the youth to observe pornography of Matthew’s cell phone; and (c) Matthew had given the youth an Apple iPod.

[22] The allegations were reported to the church officials, the WECAS, and, ultimately, the police. Subsequently, Matthew was contacted by representative(s) of the OPP, and he agreed to be interviewed by the police. As such, on Thursday, September 29, 2016, Detective Constable Peter Brujic of the OPP conducted a police interview of Matthew in the course of their investigations of the allegations. That police interview/investigation was video-recorded, consistent with the standard practice of the OPP.

[23] I pause to note that, during the course of the first day of the hearing of the special appointment hearing of the motions before me, I watched the entirety of the video-recording of D.C. Brujic’s investigation interview of Matthew on September 29, 2016.

[24] During the course of D.C. Brujic’s investigation interview, Matthew consistently denied that he had masturbated in the presence of J.L. In the same vein, in his initial affidavit sworn August 19, 2021, Matthew stated that: “[t]hese allegations are false as I did not do or intend to do anything inappropriate or harmful to this child.”

[25] However, in his subsequent affidavits, Matthew stated that: “[d]uring this process[,] I did acknowledge these events[;] however[,] I categorically denied that I had any predatory intent and that my actions were incidental and innocent.”

[26] The latter acknowledgement is consistent with the admission that Matthews made in speaking with Mr. Patrick Hansor, M.S.W., R.S.W., Clinical Social Worker and Affiliate at Clear Path Counselling & Psychotherapy Services, as noted by Mr. Hansor in his report dated February 12, 2022: “… Mr. Habuda admits to masturbating in the presence of the complainant whilst concealed in his sleeping bag.”

[27] Matthew’s admission to Mr. Hansor that he did masturbate in the presence of J.L., albeit “whilst concealed in his sleeping bag,” raises concerns for the court as to Matthew’s credibility, given the sweeping denial in his affidavit of August 19, 2021, that, “these allegations are false.”

[28] In connection with the allegation that J.L. observed pornography on Matthew’s cell phone, Matthew admitted during his police investigation of September 29, 2016, that J.L. likely did see some such images.

[29] In his interview with the police, Matthew explained that he had previously viewed some pornography on his cell phone; that this pornography was adult pornography and not child pornography; that he had never viewed child pornography on his phone; that he and J.L. were planning on going to watch a movie at the theatre; that Matthew asked J.L. to use his cell phone to call up the theatre times; and that in the course of looking up the theatre times, J.L. likely viewed the pornographic images that had been previously viewed by Matthew. The evidence of Matthew was that he asked J.L. whether he saw something on his phone that he was not supposed to see; that J.L. replied in the affirmative; and that Matthew then said to J.L. that he would appreciate J.L. not saying anything about it, that he (Matthew) shouldn’t be doing that (viewing pornography), and that it was “something I’m working on.”

[30] In connection with the allegation that Matthew gave J.L. an iPhone, Matthew admitted that, at some point, he gave J.L. an old iPod that Matthew had used prior to getting a cell phone.

[31] Additionally, Matthew offered during his interview with the OPP that he tends to move around a fair bit when he sleeps and at some point during the sleepover, his neighbour must have let their dog out into their yard and it woke up Matthew, at which time he noticed that his hand was resting on J.L.’s stomach or midsection area, over the top of his clothing. J.L. woke up also, Matthew pulled the blanket up over J.L. and asked him if he was okay, and J.L. answered “yes.” Matthew denied ever touching J.L.’s skin during the incident. He denied ever putting his hand down J.L.’s pyjama pants.

[32] At the end of the investigation interview, D.C. Brujic invited Matthew to undergo a polygraph test. Matthew subsequently declined the offer, on the advice of legal counsel.

[33] No criminal charges were ever brought against Matthew over the summer 2016 incident.

[34] The factum of the respondent mother emphasizes that the police disclosure received by the parties on March 25, 2022 (through an access-to-information request) reveals that on January 12, 2017, D.C. Brujic contacted Matthew to advise that the investigation had been completed, subject to any new information that may come in; that there would not be any charges laid at this time; but that Matthew “will remain as a ‘suspect’ in this investigation due to the information gathered to date.”

[35] I take it that the suggestion in the respondent’s factum is that because D.C. Brujic told Matthew that he remains a “suspect,” Matthew has not been “cleared” of the allegations. There are any number of reasons why D.C. Brujic may have been intent on advising Matthew that he was still a “suspect” but the fact remains that it is coming up on seven years now, and no charges have been laid over the incident.

[36] I also note that included in the same police disclosure is the following notation by the investigating officer: “On-duty Crime Sergeant MASON contacted. Upon consultation with Mason it had been determined that no Criminal offence transpired.” That passage is neither referenced nor addressed in the factum of the respondent mother.

[37] While no criminal charges were laid by the police, Matthew was subsequently advised by the WECAS that it had caused his name to be placed on the Child Abuse Register.

Disclosure of the Summer 2016 Incident

[38] There is a conflict in the evidence of the parties as to whether Matthew ever advised Taylor that he had been placed on the Child Abuse Register. Matthew maintains that he so advised Taylor before they were married. Taylor is adamant that she did not know about it before the marriage and learned about it for the first time only after they separated.

[39] The evidence of Matthew is as follows: I was later informed by the Windsor Police that charges would not be laid however the Children’s Aid Society advised that they would be placing me on the Child Abuse Register [ sic ].

After receiving correspondence from the WECAS confirming my registration on the Child Abuse Register I disclosed all of these particulars to Taylor and showed Taylor the WECAS correspondence regarding the registration as we were engaged to marry at this time. The Respondent, who has known me for over 10 years, advised me that she fully supported me and believed that I had not done anything intentionally inappropriate.

[40] The evidence of Taylor is as follows: Had I known the Applicant was registered on the Child Abuse Registry I would not have married the applicant nor had a child with him.

The Applicant advised me, when we were first married, after I found paperwork that caused me concern, that there was an incident that had been reported to authorities concerning a child and that it had been sorted out and nothing further was done.

He described it to me as an accident where he was changing his clothes after swimming at his parents’ home and in his bedroom and a young child happened to accidentally enter the room. He never used the words “the Child Abuse Register” and I did not explore the matter further.

[41] Again, the parties were not cross-examined on their affidavits. I note that Matthew stated that he showed Taylor “the WECAS correspondence regarding the registration,” and, for her part, Taylor acknowledged that she saw “paperwork” about “an incident that had been reported to authorities concerning a child.” If that “paperwork” was not, in fact, “the WECAS correspondence regarding the registration,” then it remains to be determined what specific “paperwork” Taylor was referencing.

[42] However, for present purposes, it is not necessary for me to make any finding as to when Taylor became aware of the registration. The questions of what Taylor knew and when she knew it can be left for trial.

Separation of the parties

[43] The parties are also disagreed as to the reasons leading up to their separation on August 4, 2021.

[44] Taylor has made bald allegations that Matthew was abusive to her and Jaxson during the marriage and that the abuse was “physical, verbal, emotional and financial.” Taylor has described the circumstances that resulted in the parties’ separation as follows: I had concerns about the Applicant and his abusive behaviour towards the child and myself so I called Hiatus House on August 3, 2021 to describe my concerns about his abuse towards me and his negligence in caring for the child. They advised me, after I told them the details, they were required to call the Windsor Essex Children’s Aid Society.

[On] August 4, 2021 the Windsor Essex Children’s Aid Society called me and told me, to my shock, that the Applicant was not to be alone with any child under the age of 16 years including Jaxson as the Applicant had been charged by the police for abuse of a child aged 12 years in the past several years and had his name on the Child Abuse Register. I then called my mother and we made plans to leave the home. I am staying with her and my father.

[45] On the evidence before me, it is not clear how Taylor’s bald allegations of abuse are to be reconciled with the statements Taylor apparently made to her psychiatrist, Dr. Fatima Taboun, as reflected in the doctor’s report of November 10, 2020, that “she feels supported by her husband” or the subsequent clinical note of Dr. Taboun of November 24, 2020, that Taylor reported she “has good support from her husband.” Taylor’s explanation is that, “at the time” – that is, about eight months before the separation – “I was committed to the marriage and believed that I should accept the applicant’s behaviour as he was trying to convince me that I was the problem.”

[46] The evidence of Matthew is that Taylor took the baby Jaxson and left the matrimonial home on August 3, 2021, and not August 4th as Taylor has said. The evidence of Matthew as to the circumstances surrounding the parties’ separation is as follows: On August 3rd, 2021, I received a telephone call from one of our neighbours reporting to me that Taylor and others were removing various contents from our townhome where we reside in Harrow. I left work at approximately 9:00 p.m. and upon returning to the home it was essentially empty including all or our son’s furniture. I called my wife’s parents who reside in the Remington Park area and confirmed that Taylor and our son had taken residence there. Obviously, Taylor had planned her departure at some point and did so without any notice to me.

On August 4th, 2021, I received a telephone call from WECAS worker Kim Laporte who advised me over the telephone that the WECAS had received an anonymous report regarding my “care giving skills”. Ms. Laporte went on to advise me that after receiving this report a routine background check was performed and the above-mentioned child abuse registration was noted at that time. Ms. Laporte then requested that she and I meet, and I agreed to do so and Ms. Laporte attended my home the following Tuesday, August 10, 2021.

Ms. Laporte attended my home on Tuesday, August 10, 2021, and she relayed to me the following list of anonymous allegations regarding my “care giving skills” had been received:

a) I allegedly left my son unattended on a change table (which incident involved me walking some 10 feet away from my son while on a change table to retrieve a washcloth);

b) That I did not tighten my son’s car seat straps (which was false as I specifically tighten them to a level of tightness permitting one finger under the strap which I had been directed to do when we purchased the car seat);

c) Our son had rolled off the bed at my grandmother’s home (which did occur when my son rolled off my grandmother’s bed approximately 18 inches onto a carpeted surface when my grandmother and I were changing him on the routine occasion where I would bring my son to my grandmother’s home when cutting her lawn);

d) That I am “constantly yelling at my son or that I am rough with my son” (which is completely false).

Clearly it was Taylor who had reported these allegations to the Children’s Aid Society as she was the only person present during the first incident regarding walking 10 feet from my son’s change table and as well, I had disclosed to her the third incident that took place at my grandmother’s home.

It is my belief that when Taylor provided Children’s Aid Society with this list of complaints she did not mention or see fit to mention the incident of summer 2016 regarding the child abuse registration. I believe this because during my telephone discussion with Kim Laporte on August 4th she asked if I had disclosed the child abuse registration to Taylor at any time and I confirmed to her that I had done so.

[47] I note that in her reply affidavit of May 16, 2022, Taylor does not specifically deny that she left the home on August 3, 2021, as Matthew has claimed; she simply recites that she had previously set out “the events on separation.”

[48] I also note that, despite the very strong and explicit assertion of Matthew that it was Taylor who made the “anonymous report” to WECAS about Matthew’s deficient parenting skills, in her reply affidavit, Taylor makes no comment at all about Matthew’s assertion and, specifically, makes no comment at all about the statements made in paras. 26 and 28 of Matthew’s affidavit. It was in para. 28 of Matthew’s affidavit that he stated that, clearly, “it was Taylor who had reported these allegations to the Children’s Aid Society.” Taylor did not specifically address that direct allegation – or address at all – the statements asserted in para. 28 of Matthew’s affidavit (or para. 26).

[49] What I take from the exchange of affidavits is that, inter alia, it is clear that it was Taylor who made the “anonymous report” to the Society, that it is also clear that Taylor must be taken to have implicitly admitted same, and that, in my view, Taylor’s failure to admit same to the court raises questions to her candour, or lack thereof, with the court.

[50] Beyond that, again, it is not necessary for me to make any finding as to the reasons for or circumstances surrounding the parties’ separation. If considered relevant, that issue can be pursued at trial.

[51] In any event, what is clear is that from the time of separation on August 4, 2021, Taylor denied any access by the applicant father to their son, Jaxson.

[52] What is also clear is that, as of the time of separation on August 4, 2021, Jaxson was just six months of age. As indicated, he is now more than two years of age.

[53] Not surprisingly, the respondent mother’s denial of access prompted the applicant father to commence legal proceedings. The applicant father’s application, pursuant to the Divorce Act, was signed on August 19, 2021, and was electronically issued by the court on September 13, 2021. The applicant father then brought an emergency motion before the court, by notice of motion dated August 24, 2021.

[54] Prior to the hearing of the applicant father’s emergency motion, Ms. Tara Ivancic, B.S.W., Family Service Worker with the WECAS, delivered a letter dated September 27, 2021, in which she confirmed that there was an open file for the parties’ family at the WECAS, and she confirmed that the following safety plan remained in place:

a. “Matthew and Taylor will ensure there is no conflict around the child.”

b. “Matthew is able to have access with his son – but the access will be fully supervised by an approved third party. Matthew will not be able to bathe or change his son at this time and there will be no overnight access. Matthew and the approved third party access supervisor will also be expected to ensure appropriate supervision of the child.”

c. “Due to [Matthew’s] historical involvement with CAS regarding sexual abuse towards a minor child, the recommendation put in place at that time was that you are not to be alone with a child under the age of 16.”

d. “As discussed with the Intake worker, they reviewed in order for this expectation to change [ sic ], you would have to complete an assessment to see if you would be considered ‘low risk’ to offend against children.”

e. “I have spoken with Mr. Patrick Hansor at Clear Path Counselling, while he confirmed that he would not able [ semble : be] able to provide a nominal value or provide a specific risk level – he would be able to identify risk factors that would need to be addressed. I confirm that the Society would be in agreement to you working with Mr. Hansor to identity risk factors[;] however, we would also recommend you complete counselling and demonstrate that you have addressed the risk factors before the Society is prepared to change the recommendations for your contact with your son.”

[55] The Society completed their assessment of Matthew’s parents and approved them as third party access supervisors. The evidence of Ms. Ivancic was that she attended at the parents’ home, did a home study, and interviewed the parents. An access contract was signed by Matthew, his parents, and Ms. Ivancic on behalf of the Society on September 29, 2021.

[56] The applicant father’s emergency motion was ultimately heard by Verbeem J. on October 15, 2021. In his endorsement of that same day, Verbeem J. held that: The Court is in a difficult position because all of the contemporaneous information related to the Applicant’s alleged conduct has not yet been obtained (Police/WECAS records) in turn that information may inform the nature and extent of risk, if any, and the requisite level of supervision. The Court must only be guided by the determination of the best interests of the child. In the circumstances of this case, and without making any findings of misconduct on the Applicant’s part, the child’s best interests warrant a very cautious and careful approach. [Emphasis added.]

[57] Consistent with the Society’s safety plan, by temporary order dated October 15, 2021, Verbeem J. ordered, inter alia, that:

a. The applicant father shall have supervised parenting time with Jaxson, to be exercised in the residence and continuing presence of at least one of his parents, namely, Darko Habuda and Robin Habuda, at 157 Pheasant Run Drive, Belle River, during the specified times;

b. At all other times, the respondent mother shall have parenting time with the child;

c. The applicant father and his parent-supervisors shall ensure that the applicant father is never alone in the presence of the child and at least one of the parents must maintain a continuous, uninterrupted visible observations of the child when the child is in the presence of the applicant father;

d. The applicant father shall not bathe the child under any circumstances;

e. Subject to the foregoing, the applicant father shall have supervised parenting time with Jaxson:

i. When the applicant father is on afternoon shifts at Chrysler, he shall have parenting time with Jaxson Tuesdays and Thursdays from 9:00 a.m. to 1:00 p.m.;

ii. When the applicant father is on day shifts at Chrysler, he shall have parenting time with Jaxson Tuesdays and Thursdays from 5:00 p.m. to 7:00 p.m.;

iii. Every Sunday from 9:00 a.m. to 1:00 p.m.

[58] I note that, although Verbeem J. was obviously concerned that instant case demanded that “a very cautious and careful approach” should be taken (as the respondent mother has emphasized in her factum), despite the fact that the respondent mother had submitted that the applicant father’s parents should not be approved as third party supervisors, Verbeem J. approved Matthew’s parents to serve as his supervisors for parenting time purposes.

[59] By order dated December 10, 2021, Carey J. made an order, on consent, that the order of Verbeem J. be adjusted to more closely align with the applicant father’s work schedule and his request for Christmas access.

Issues

[60] As I have said, the central issue at the hearing of the special appointment involved the issue of the applicant father’s parenting time with the parties’ son, Jaxson. As such, I address the following issues below:

a. Appropriate parenting time arrangements for the applicant father;

b. The respondent mother’s claim for decision-making responsibility and residency; and

c. Costs.

Analysis

Appropriate Parenting Time Arrangements for the Applicant Father

[61] In exercising the court’s authority under ss. 16(1) and 16.1 of the Divorce Act to make an order respecting the parenting time of the applicant father with Jaxson, I have taken into consideration “only the best interests of the child of the marriage,” as mandated by s. 16(1) of the Act, and have given primary consideration to the child’s physical, emotional and psychological safety, security, and well-being, as required by s. 16(2) of the Act. I have considered, inter alia, the list of factors enumerated in s. 16(3) of the Act and the maximum contact principle enshrined in s. 16(6) of the Act.

[62] “The overarching principle in carrying out the analysis is that the child’s best interests must be ascertained from the perspective of the child rather than the parents; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child.”

[63] Section 16(3) of the Divorce Act directs the court, in determining the best interests of the child, to consider all factors related to the circumstances of the child, including:

(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 spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

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

(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 cooperate, 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 cooperate 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.

[64] The court must decide the best interests of the child on all of the evidence and the appropriate legal principles and must not abandon that decision to an assessor. The best interests of the child are not necessarily the same as the wishes of the child or of the parents. Rather, the court must consider what is best for the child in the long run.

[65] Subsection 16(5) of the Divorce Act prohibits the court from taking into consideration the past conduct of any person “unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.” A party’s action that reflects poorly on a party as a spouse may not affect that party’s ability to parent.

[66] I have considered the respective positions of the parties.

[67] I found it telling that, during final submissions and in response to a comment from the bench, counsel for the respondent mother advised that “our primary goal” of the respondent mother was not to have any parenting time for the applicant father. That position is also reflected in the factum of the respondent.

[68] I certainly appreciate the candour of counsel. Among other things, it is of assistance in better understanding some of the positions taken by the respondent mother in this case and the reasons therefor.

[69] And I also appreciate that the respondent mother, essentially, believes that the applicant father is a pedophile. That is quite clear from her factum: Mr. Habuda was a 26 year old adult who was sexually attracted to a child. Such a person, it is submitted, is a pedophile.

An adult who acts upon his sexual attraction to a child, it is submitted, is a pedophile who presents a risk.

[70] The respondent mother is certainly entitled to her own personal beliefs. But the mother’s personal beliefs are not determinative of the issues before the court. The record of evidence before the court simply does not support the mother’s beliefs.

[71] As referenced above, the applicant father was referred to Mr. Patrick Hansor, who is an affiliate of Clear Path Counselling & Psychotherapy Services (formerly, the Windsor Sex Offender Treatment Program). Mr. Hansor has been with the program since 2018 as a Clinical Social Worker and Treatment Group Co-Facilitator. He is a Clinical Member with the Association for the Treatment of Sexual Abusers (ATSA). Mr. Hansor delivered two reports in this matter and testified at trial.

[72] It was Mr. Hansor’s recollection that, prior to the delivery of his first report, he met with Matthew an estimated 12 or 14 times in one-hour sessions, from late August 2021, to January 24, 2022.

[73] In his first report dated February 12, 2022, Mr. Hansor noted, as I have said, that, “Mr. Habuda admits to masturbating in the presence of the complainant whilst concealed in his sleeping bag.” In the report’s “Summary of Findings,” Mr. Hansor observed that: Mr. Habuda did not present as sexually deviant. The behaviour in question demonstrated his poor judgment in exercising his personal boundaries. Throughout his time in treatment, he was able to acknowledge the inappropriateness of his actions and begin to address these shortcomings.

[74] In the report’s “Clinical Formulation,” Mr. Hansor stated: Based on clinical observation and self-reported evidence, Mr. Habuda did not present with the criminogenic needs of a sexual offender. For example, he does not present with deviant sexual interests, he was not resistant to supervision and rules; he has stable employment; he reports having no negative social influences …

[75] In the report’s “Recommendations,” Mr. Hansor concluded: Notwithstanding the specific criminogenic needs pertaining to Mr. Habuda’s sexual transgression, it remains doubtful that Mr. Habuda poses a credible threat to his infant child. The findings of this report cannot provide confident support as to a high level of supervision recommended for Mr. Habuda. Following the best practice principles of Risk-Need-Responsivity Framework, this report advocates exercising caution in oversimplifying risk factors.

[76] Subsequent to the delivery of his first report, Mr. Hansor was asked for some clarification. He was also given access to the video recording of the investigation interview of the applicant father conducted by the OPP on September 29, 2016, and was asked to watch the video. Mr. Hansor then provided a supplementary report, which was received September 19, 2022.

[77] In his supplementary report, Mr. Hansor clarified that: … at no time has Matthew presented with any concerns of a proclivity toward incest-pedophilia.

[78] Mr. Hansor went on to conclude that: I can conclude that Matthew does not fit the profile of [a] person at risk for carrying out incest-pedophilia. Considering the addiction of protective factors observed during treatment and communicated in my report on February 12, 2022, I can conclude with reasonable confidence that Matthew does not present as a risk to sexually harming his son Jaxson Habuda.

[79] Mr. Hansor was asked whether, after viewing the video recording of the OPP’s interview of Matthew, he believed it necessary to revise his original recommendations. Mr. Hansor addressed that in his supplementary report in the following terms: After viewing the video of the questioning of Mr. Habuda by the OPP, I did not find any additional information which has caused me to alter my original recommendations.

[80] Mr. Hansor also offered the following observations: After meeting with Matthew over several hours, I observed him to be a genuine and well-intentioned man with a basically positive regard for others and the world around him. I did not find it difficult to imagine him as [a] caring father, capable of having a loving and meaningful relationship with his son.

[81] Mr. Hansor was cross-examined at some length by counsel for the respondent mother. He was not shaken in his testimony. His credentials were also challenged. That attempt, in my view, also fell short.

[82] In my view, the evidence before the court is simply insufficient to support the drastic remedy of termination of all parenting time of the applicant father with Jaxson. While there is no presumption in law that a child should have equal parenting time with both parents, a child should have the opportunity to have a meaningful relationship with both parents.

[83] On this point, I find the commentary provided by Charney J. in Kirichenko v. Kirichenko, 2021 ONSC 2833 to be instructive: While there is no presumption of equal parenting time (Bembenek v. Bembenek, 2019 ONSC 4050, at para. 96), 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 (See s. 16(6) of the Divorce Act and s. 24(6) of the CLRA).

Prior to its amendment on March 1, 2021 by Bill-78, the marginal note to s. 16(10) of the Divorce Act … referred to “Maximum Contact”, and so the principle that a child should have as much time with each parent as is consistent with the best interests of the child came to be referred to as the “maximum contact principle”: Young v. Young, [1999] 4 S.C.R. 3, at para. 212.

Failure to consider and apply the maximum contact principle is an error of law: Rigillo v. Rigillo, 2019 ONCA 548, at paras. 3 and 12.

Bill-78 repealed s.16(10) of the Divorce Act and replaced it with the similarly worded s. 16(6). The marginal note “Maximum Contact” was deleted and replaced with “Parenting time consistent with best interests of child”, as there was concern that the term “maximum contact” might be misinterpreted as creating a presumption of equal parenting time, a principle rejected by Parliament. Properly understood, however, the principle of maximum contact continues to apply, and previous cases relying on this principle continue to be relevant. See Nicholas Bala, “Bill C-78: The 2020 Reforms to the Parenting Provisions of Canada’s Divorce Act,” 39 C.F.L.Q. 47, at pp. 67-69:

It is submitted that despite the disappearance of the word “maximum” from the marginal notes, since the words of the legislation have not changed materially, and the social science literature continues to recognize the value, in most cases, of significant involvement of both parents in the lives of their children after separation, Canadian courts should continue to rely on the precedents under the previous law.

[84] One must also remember that Jaxson is just two years of age. To terminate the parenting time of the applicant father with Jaxson at such a young age would essentially put an end to any relationship that Jaxson may have with his father.

[85] One of the consistent themes in the case presented on behalf of the respondent mother is her emphasis on the fact that Matthew is not the biological father of Jaxson. It is common ground that, due to Matthew’s infertility owing to a testicular surgery he had when he was nine years of age, the couple used artificial insemination in order to conceive Jaxson.

[86] Apparently, it is the belief of Taylor that the fact that Matthew is not the biological father of Jaxson is somehow relevant to a sexual offender risk assessment of Matthew: “[t]he assessor should also be made aware that the Applicant is not the biological father of the child (the child was conceived with a sperm donor) and should address whether or not this adds to the risk. The assessor should view the video provided by the police of the interrogation of the Applicant as well as the police records of the events.”

[87] As I have already indicated, Mr. Hansor did, in fact, review the video recording of the OPP’s investigation interview of Matthew, and Mr. Hansor’s evidence was that it did not alter his initial opinion or recommendations.

[88] Mr. Hansor also confirmed in his viva voce testimony before the court that he knew full well that Matthew is not the biological father of Jaxson. In cross-examination, Mr. Hansor confirmed that he was fully aware that the child is not a “blood relative” of Matthew. But, as Mr. Hansor testified, the “relationship” between a father and son is “not dependent on DNA.” His evidence was to the effect that the fact Matthew was not the biological father of Jaxson was not a relevant factor in the risk assessment of Matthew.

[89] In my view, there is simply no evidence before the court to indicate that the accepted fact that Matthew is not the biological father of Jaxson is somehow an indicator of some increased risk factor on behalf of Matthew. Again, this may well be a personal belief of the respondent mother but it is not supported in the evidence before the court.

[90] I would also note that in various statements the respondent mother has made before this court, she has acknowledged that the applicant father stands in the position of a parent to Jaxson. Hence, the respondent mother’s admissions that she “had a child with him” and that if, as she alleged, she had known about the extent of the incidents, “I would not have had a child with him.”

[91] I also note the response provided by Matthew to the allegations of Taylor, when he said that: Due to my infertility[,] my wife and [I] discussed alternatives to conceiving and ultimately agreed to use artificial insemination. I was registered on the Certificate of Live Birth as the father. My wife is suggesting that these circumstances in some way create a risk factor that I would harm my son as he is not my biological child. She proposes in paragraph 12 that “the assessor sshould be made aware that the Applicant is not the biological father.” Mr. Hansor is aware of this history as it is cited in his report. It is only my wife that has suggested that these circumstances create an additional risk factor.

[92] I agree with Matthew’s observation that it is only Taylor that apparently believes this creates an additional risk factor. As I have said, Taylor’s belief is not supported in the evidence before this court.

[93] Following the release of the first report of Mr. Hansor in February 2022, the WECAS sent the parties a letter dated March 29, 2022, recommending a step-down approach in the level of supervision of Matthew’s parenting time. In the letter sent by Ms. Ivancic on behalf of the Society, she wrote: As of February 25, 2022, the Society is recommending a step-down approach in the level of supervision required during your access visits. For example:

1. To begin, you would be able to take Jaxson into the community on your own (e.g., to parks, stores, restaurants, etc.) for periods up to a maximum of three (3) hours.

2. Provided there are no substantiated concerns with the above periods of unsupervised time for a minimum period of four (4) weeks, you could then begin to be alone with Jaxson in the home with one of your approved supervisors also in the home. However, they would not need to be in the same room as you and Jaxson at all times. During this period, you could also begin changing Jaxson’s diapers and bathing him, when needed.

3. Provided there are no substantiated concerns with the above periods of unsupervised time for an additional minimum period of four (4) months, then the need for supervision during the access visits could be removed.

[94] In my view, the Society’s recommended step-down approach is, in principle, consistent with the “very cautious and careful approach,” recommended by Verbeem J. in his endorsement of October 15, 2021.

[95] That said, in his first report, Mr. Hansor had recommended that Matthew continue counselling, as follows: Mr. Habuda has shared he is open to continuing his counselling to further identify his treatment needs and further instill protective factors in relation to the safety and care of his son. Mr. Habuda is invited to continue to attend Clear Path Counselling & Psychotherapy Services. I recommend he continue to address issues of loneliness and social rejection, thoroughly understand his behaviours and motivations, establish healthier sexual boundaries and interpersonal communication, until such time that the confidence of the stakeholders is established.

[96] In his testimony before me, Mr. Hansor confirmed that Matthew had not attended for counselling after January 2022.

[97] In my view, it is important that Matthew continue his counselling, as recommended by Mr. Hansor, either with Mr. Hansor’s agency or such other service provider as the WECAS may recommend. I am also of the view that such counselling should take place before the Society’s step-down plan is implemented.

[98] Accordingly, Matthew should attend for regular counselling for a period of three months, during which time his parenting time with Jaxson should continue to be supervised by his parents, and then the Society’s step-down plan may commence.

[99] The respondent mother continues to raise objections to Matthew’s parents acting as the third party access supervisors. She believes his parenting time should be supervised at the New Beginnings supervised access centre. The respondent mother made the same arguments before Verbeem J. in October 2021, and they were rejected. That is, even though Verbeem J. called for a “very cautious and careful approach,” he still dismissed the mother’s claim that the father’s parenting time should be supervised at the supervised access centre. The evidentiary basis has not changed so substantially since that time so as to cause one to challenge the wisdom of that decision. In any event, in my view, such a restrictive setting is not necessary. Matthew’s parents were interviewed, assessed, and approved by the Society. I appreciate that the respondent mother has raised concerns with the parents’ supervision, and those concerns have been investigated by the Society (and the issue was pursued in cross-examination of Ms. Ivancic in her testimony); but the Society has not seen fit to alter its recommendation as to the third party supervisors, and there is no evidence before me that compels such a change.

[100] That said, in keeping with a “very cautious and careful approach,” I would also temper the pace of the Society’s step-down plan. As proposed, “step one” of the plan would allow the applicant father to have unsupervised parenting time with Jaxson in the community for periods up to three hours, and that first step would continue for four weeks. In my view, a longer period should be required before progressing to the second step. I would extend the first step for a total period of three months.

[101] The respondent mother’s claim for decision-making responsibility and residency

[102] The respondent mother asks for an order granting her sole decision-making responsibility over Jaxson.

[103] To my mind, the focus of the parties’ evidence and submissions was devoted to the question of Matthew’s parenting time. Relatively speaking, little evidence and attention was offered to the question of decision-making responsibility. The determination of that question should await a more fully developed evidentiary record.

[104] Moreover, in my view, there is no pressing need to determine the question of decision-making responsibility at this interim stage.

[105] That said, it is appropriate to make an interim order for residency, and that order should reflect the current reality and status quo. Given the restrictions on the applicant father’s parenting time, the reality is that the primary residence of Jaxson has been with the respondent mother.

Costs

[106] Costs should normally follow the event. Subrule 24(1) of the [Family Law Rules] provides that “[t]here is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.”

[107] However, in my view, this is not a case for costs. While the applicant father was the more successful party on the motions, he was not entirely successful.

[108] Further, as referenced at para. [24] above, I am mindful of the sweeping denial set out in Matthew’s affidavit of August 19, 2021, that, “these allegations are false,” juxtaposed with his subsequent apparent admission to Mr. Hansor that some of the alleged behaviour did in fact take place. Parties have a duty not to mislead the court. I would not reward Matthew’s conduct by an award of costs.

[109] Moreover, I am somewhat troubled by Matthew’s apparent decision to discontinue his counselling following the release of Mr. Hansor’s first report.

[110] Accordingly, each party should bear their own costs.

Conclusion

[111] This matter needs to move forward. If a settlement conference has not already been scheduled, counsel are kindly requested to forthwith make arrangements with Trial Coordination to have a settlement conference held within six months.

[112] For the reasons set out above, a temporary order shall issue in the following terms:

Residency

a. The child of the marriage, Jaxson Xavier Habuda, born February 1, 2021, shall primarily reside with the respondent mother.

Parenting Time

b. The applicant father shall continue to have parenting time with Jaxson on a supervised basis in accordance with the provisions of the order of Verbeem J. dated October 15, 2021, as varied by the order of Carey J. dated December 10, 2021.

c. The applicant father shall forthwith attend for regular counselling with Clear Path Counselling & Psychotherapy Services (formerly, the Windsor Sex Offender Treatment Program) or such other service provider as may be recommended by the Windsor-Essex Children’s Aid Society.

d. Provided that the applicant father regularly attends counselling to the satisfaction of the service provider for an initial period of three months, the respondent father may then have parenting time with Jaxson in accordance with the step-down recommendations of the Windsor-Essex Children’s Aid Society as set out in its letter dated March 29, 2022, and, in particular:

i. Following the initial period of three months of counselling, the applicant father may have unsupervised parenting time with Jaxson in the community (e.g., to parks, stores, restaurants, etc.) for periods up to a maximum of three hours per week.

ii. Provided there are no substantiated concerns with the above periods of unsupervised time for a minimum period of three months, and provided further that the applicant father continues to attend for regular counselling, the applicant father may have parenting time alone with Jaxson in the home provided that one of the approved supervisors (Darko Habuda and/or Robin Habuda) is also present in the home (although not necessarily in the same room as Jaxson at all times). During this period, the applicant father may begin changing Jaxson’s diapers and bathing him, when needed.

iii. Provided there are no substantiated concerns with the above periods of unsupervised time for an additional minimum period of four months, and provided further that the applicant father continues to attend for regular counselling (until such time as the service provider deems appropriate), then the applicant father may have unsupervised parenting time with Jaxson.

Parenting Incidentals

e. Neither party shall schedule any regular activities for the child of the marriage during the other party’s parenting time without the written consent of the party who is scheduled to parent the child, such consent not to be unreasonably withheld.

f. Each parent may make inquiries and be given information by the child’s daycare provider, teacher, school officials, physicians, counsellors, psychologists, and other health care providers. The applicant and respondent shall sign any consent, direction, authorization, or other document necessary to give effect to this provision.

g. If the child of the marriage is admitted to hospital, the parent with whom the child is residing shall notify the other parent within 30 minutes of admission.

Communication

h. Neither parent shall speak in a disparaging or negative manner about the other parent or allow or encourage other persons to do so in the presence of the child. Neither parent shall post any disparaging or negative comment about the other parent in social media.

i. Neither parent shall discuss with the child, or with another person in the presence of the child, any issue relating to parenting arrangements, present or past legal proceedings, financial issues relating to the parties or the child, including child support and special or extraordinary expenses, or conflicts between the parties relating to any such issues.

j. Neither parent shall leave out or make accessible to the child any information, document, or electronic file pertaining to any issue arising from the parties’ separation and family law proceeding, and neither party shall permit the child access to their personal email where communications regarding these matters are stored.

k. Neither parent shall do anything that would estrange the child from the other parent, injure the opinion of the child as to their mother or father, or impair the natural development of the child’s love and respect for each of his parents.

Original Signed by “Justice J. P. R. Howard”

J. Paul R. Howard Justice

Released: March 27, 2023