Court File and Parties
COURT FILE NO.: FC-21-163 DATE: 20230714
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JLD Applicant/Responding Party – and – JHS Respondent/Moving Party
Counsel: Self-Represented (for JLD) Courtney Thompson, for the Respondent/Moving Party (for JHS)
HEARD IN PERSON: June 30, 2023
REASONS FOR DECISION ON MOTION FOR SUMMARY JUDGMENT
JUSTICE L. SHEARD
Overview
[1] The Respondent father (“JHS”) [1] brings a motion for summary judgment under Rule 16 of the Family Law Rules, O. Reg. 114/99 (the “SJM”). JHS seeks final orders respecting the parties’ child, now eight years old, MCDS, born March X, 20XX (the “Child”) respecting decision-making, the Child’s residence, and parenting time.
[2] Among other things, JHS seeks final orders that,
(a) the Child reside primarily with him;
(b) JHS have parenting time with the Child - essentially Monday to Friday;
(c) the Applicant mother (“JLD”) have parenting time on identified weekends, two evenings per week via telephone or video and in accordance with a proposed holiday schedule; and,
(d) JHS have sole and final decision-making, in consultation with JLD.
[3] If granted, the relief sought on the SJM would essentially reverse the informal arrangements that, for the most part, have been in place since the parties separated in 2018.
[4] The evidence before me on the SJM includes:
(i) JHS’s affidavits, affirmed on April 20, and June 16, 2023;
(ii) the affidavit of Jason Almost, affirmed April 19, 2023, attaching the records of Child and Family Services of Grand Erie (“the Society”);
(iii) the affidavit of Barbara Hotson, MSW, RSW, the clinician engaged by the Office of the Children’s Lawyer (the “Clinician”), which attaches the Report of the Children’s Lawyer (“the OCL Report”);
(iv) JLD’s affidavit, affirmed June 15, 2023, consisting of three paragraphs to which she attached approximately 89 pages of her hand notes and excerpts from text messages exchanged with JHS and his spouse;
(v) JLD’s viva voce testimony given on the SJM; and
(vi) the Child’s school report card of June 16, 2023.
[5] Until approximately April 2023, JLD was represented by counsel. However, on the SJM, JLD was no longer represented. As JLD’s affidavit contained unsworn and hearsay evidence, at the request of counsel for JHS, and with the consent of JHS and leave of this court, JLD was permitted to give viva voce testimony at the SJM hearing. JLD did not deliver a factum.
[6] JHS did file a factum and brief of authorities. Also, to assist the court and JLD, at the SJM, JHS provided paper copies of the materials – his and JLD’s, as well as copies of JLD’s amended Application and JHS’s Answer.
[7] For the reasons that follow, JHS’s motion for summary judgment is granted.
Applicable Test on Motion for Summary Judgment
[8] JHS’s SJM is brought under Rule 16 of the Family Law Rules, O. Reg. 114/99.
[9] Rule 16 (6) provides that if there is no genuine issues requiring a trial of a claim or defence, the court shall make a final order for summary judgment. The burden is on the moving party to establish that there is no genuine issue requiring a trial.
[10] Rule 16 (4.1) provides that the party responding to a motion for summary judgment may not “rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial”.
[11] Rule 16 (6.1) directs that the court shall consider the evidence submitted by the parties and, “unless it is in the interest of justice for such powers to be exercised only at a trial” may weigh the evidence, evaluate the credibility of a deponent; and draw any reasonable inference from the evidence.
[12] As set out in Hryniak v. Mauldin, 2014 SCC 7, there will be no genuine issue requiring a trial:
…when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.” [3]
[13] On a motion for summary judgment, the responding party must “put its best foot forward” or “lead trumps or risk losing”: see Kawartha-Haliburton Children’s Aid Society v. M.W., 2018 ONSC 2783, at para. 50, citing Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200, 242 A.C.W.S. (3d) 794, affirmed 2014 ONCA 878. More recently, courts have expanded those principles to apply to each party: see Martel v. Nguyen, 2023 ONSC 1382, at para. 9.
Disposition: There is No Genuine Issue for Trial
[14] I considered all the evidence put before me on this SJM and find that JHS has met his initial onus of showing that there is no genuine issue requiring a trial to determine the final orders he seeks. In making that finding, I have considered the affidavit evidence put forth by JHS and JLD, as well as the oral evidence JLD gave at the SJM. Taken as a whole, the parties’ own evidence is entirely consistent with the factual findings and observations made by the Clinician, set out in the OCL Report.
[15] While testifying at the SJM, JLD asserted that a trial would be necessary, because she had other witnesses who could give relevant evidence. I do not accept that assertion.
[16] By way of example, JLD claimed that one time, she found that JHS had dressed the Child in shorts that the Child had outgrown, which resulted in a bladder problem. JLD asserted that a doctor’s evidence would corroborate her claim.
[17] JLD’s allegation is referenced at page 2 of the OCL Report. However, the OCL Report makes no mention of any alleged health consequence to the Child. Furthermore, as noted in the OCL Report, the Clinician was provided with a report from the Child’s physician who reported no ongoing physical or mental health issues. I assume that, had there been any evidence that the Child had suffered a bladder infection or other harm while in the care of his father, that evidence would have been uncovered by the Clinician and mentioned in the OCL Report.
[18] A second identified issue for which, I understand, JLD argued that a trial is necessary, is her assertion that JHS and his family speak badly about her to the Child, which leads to the Child misbehaving and speaking rudely to JLD. Again, I do not accept those submissions.
[19] When I consider the evidence put forth by JLD, both in her affidavit and in her oral testimony on the SJM, I find no credible evidence to support JLD’s assertion that the Child’s behaviours are caused by JHS. JLD’s allegation is particularly difficult to accept given the very limited parenting time she has allowed to JHS, and her demand that much of JHS’s parenting time take place in JLD’s own home and under her supervision.
[20] I find no evidentiary basis for JLD’s allegations that the Child’s behaviour problems result from JHS and/or members of his family speaking poorly of JLD; something both JHS and the Child deny.
[21] Finally, JLD’s allegations are addressed in the OCL Report and in JHS’s affidavits. The evidence shows, and JHS acknowledges, that the Child’s behaviours can be difficult to manage. Where there is disagreement is over the source of these behaviours.
[22] The evidence suggests that the Child’s behaviours may have many sources, including conflict between the parents, but also because, while residing with JLD, the Child did not attend “in-person” school at all during his grade one year, and missed 54 days of school in his grade two year, ending June 2023. The school suggests that the Child’s absenteeism is interfering with his ability to regulate his own behaviour and to gain necessary social skills.
[23] Rule 16 (6.1) directs the court to consider the evidence submitted by the parties and, “unless it is in the interest of justice for such powers to be exercised only at a trial” may weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence. There is a significant record before the court on this SJM and I conclude that it is not in the interest of justice for the powers set out under r. 16(6.1) to be exercised only at trial. Rather, I conclude that it is in the best interests of the Child for this court to weigh the evidence, evaluate the credibility of the deponents, and to draw reasonable inferences from the evidence.
[24] Taken as a whole, I conclude that “sufficient evidence has been presented on all relevant points” to allow this Court “to draw the inferences necessary to make dispositive findings and to fairly and justly adjudicate the issues in this case”: DM v. Children’s Aid Society of Ottawa, 2021 ONSC 8360.
Background
[25] The parties lived in a common-law relationship from August 2012 to May 2016. They have one child of this relationship: the Child. JHS acknowledges one incident of “alcohol-fueled” family violence, an assault in May 2016, which, he says, precipitated the breakdown of the parties’ relationship. Following the assault, JHS left the home, surrendered to police, pleaded guilty to assault, completed the Partner Assault Response program and one year of probation, and abstained from alcohol until 2021 or 2022.
[26] Based on the evidence before me, I accept that the May 2016 incident was a one-time event, for which JHS took full responsibility, accepted his punishment, and took meaningful steps to understand and reform his behaviour.
[27] JHS has re-partnered and he and his new spouse have two children aged 2 ½ and 4 ½ years. They now live in a home in Brantford and JHS’s spouse is at home full-time.
[28] Following separation, JHS and JLD successfully co-parented the Child until May 2018, when, according to JHS, JLD learned that JHS and his new partner were expecting a child. From and after the summer of 2018, JLD more or less unilaterally dictated the parenting schedule between the parties. In general, the Child lived with JLD and JLD’s mother (the “MGM”) during the week and JHS would have parenting time with the Child on the weekends.
[29] On May 13, 2021, JLD contacted JHS complaining that she could not manage the Child’s behaviours and asking JHS to come to collect the Child. He did so. According to JHS, when he arrived at JLD’s home, he found the Child on the doorstep with a bag, reporting that his mother had “kicked him out”. The child was then six years old.
[30] JHS brought the Child home to live with him. JHS says that between May 13 and June 10, 2021, JLD did not communicate with or arrange to see the Child. As the Child was with him, JHS stopped paying child support in the month of June or July.
[31] JHS states that on July 16, 2021, JLD attended at the yard of JHS’s neighbour, where the Child was playing with the neighbour’s child. JLD called the Child to her and, saying nothing to JHS, JLD simply took the Child home with her. When he could not find the Child, JHS called the police. As noted later, these events led to the involvement of the Society.
[32] More importantly, after July 2021 until December 25, 2022, JLD would allow JHS to “visit” the Child only in or near her home and under her supervision. JHS states that he acquiesced to JLD’s demands because he wanted to see the Child, whatever the terms, and did not want to escalate the conflict with JLD which, he believed, would pose a risk of harm to the Child.
[33] From July 2021 until December 25, 2022, as a result of the restrictions JLD imposed on JHS’s parenting time, the Child did not see his two half-brothers, his father’s new partner, or any members of his paternal extended family in that period of time.
Court Application
[34] JLD commenced an application in September 2021. She seeks child support, sole decision-making authority over the Child, an order that the Child reside primarily with her and that JHS’s parenting time be at her sole and absolute discretion. In his Answer, JHS sought relief similar to the relief he seeks on this SJM.
[35] On December 23, 2021, Ramsay J. made an order, on consent, that JHS pay child support, commencing January 1, 2022 and requesting the involvement of the OCL.
[36] On June 29, 2022, the OCL consented to provide services pursuant to section 112 of the Courts of Justice Act, R.S.O.1990, c. C.43 (the “CJA”). The OCL conducted an investigation, which is documented in the OCL Report dated January 12, 2023.
[37] Prior to the release of the OCL Report, a disclosure meeting was held with the OCL and the parties on December 15, 2022. More will be said about the OCL Report later in these reasons. However, it is significant that following this disclosure meeting, the applicant eased the restrictions she had placed on JHS’s parenting time to, now, allow the Child to visit with JHS at JHS’s home in Brantford, Ontario. However, JLD, who does not drive, refused to allow the Child to stay overnight on those visits: JHS was required to pick up and drop off the Child from JLD’s home in Simcoe, Ontario. JHS agreed to do this as it appeared to him to be the only way that he would have any time with the Child in his own home, which would also allow the Child to see his siblings.
[38] In March 2023, JLD lost her housing, at which time she asked JHS to collect the Child to live with JHS. JHS did so and the Child lived with JHS and his family in Brantford, from late March 2023 until May 12, 2023, when JLD unilaterally demanded that the Child return to live with JLD and the MGM, (then living in a hotel room, where they remained to the date of this SJM).
[39] JHS suggests that JLD changed her mind about “allowing” the Child to live with him, only days after a date was set for the hearing of this SJM.
[40] As at the date of the hearing of the SJM, JLD was allowing parenting time with the Child on weekends.
Interim Order
[41] At the conclusion of the SJM, I made an interim order that the parties have parenting time on a week-about basis commencing June 30, 2023. To my knowledge, that is the first order made respecting parenting time.
The OCL Report
Jurisdiction
[42] As noted, the OCL Report was completed pursuant to the provisions of s.112 of the CJA. Pursuant to s. 112 (2), the OCL may make a report and recommendations to the court on the results of the investigation. S. 112(4) requires the person who prepares a report to execute an affidavit verifying the facts in the report. That was done by the Clinician, Barbara Hotson. As required by s. 112(5), the OCL Report was served on both parties and in December 2022, a disclosure meeting was held with the parties and their counsel, to discuss the OCL Report and its recommendations.
[43] S. 112(7) permits the parties to dispute the facts set out in the OCL Report, following which a representative of the OCL may be required to attend a hearing.
[44] Neither party has disputed the OCL Report.
[45] Finally, pursuant to s. 112(6), the Clinician’s affidavit and OCL Report form part of the evidence before the court at this hearing.
Factual Findings
[46] The OCL Report states that the Clinician interviewed JLD, JHS, and the Child, observed the Child with JLD, at her home, and with JHS, at his home. The Clinician identified her sources of information to include the Society, the Child’s elementary school, MGM, JHS’s spouse and his mother. Also, the Clinician reviewed the reports from the physician for JLD and the Child, the physician for JHS, and the 2022 report from the OPP (apparently generated when JLD surreptitiously removed the Child from JHS’s home in July 2021) and the court documents.
[47] While the OCL Report is only one piece of evidence before this court, the facts on which it is based are consistent with the evidence given by the parties. For example, the OCL Report documents what each party has said about their ability to communicate with each other. In her evidence, JLD referenced texts she exchanged with JHS and his partner. Based on the texts produced, and consistent with what is set out in the OCL Report, the parties have had a difficult relationship. However, JHS submits, and I accept, that the texts produced by JLD are far from complete. According to JHS, JLD texts him multiple times a day – he says between 15 and 60 texts per day – and submits that texts produced by JLD came at the end of a long string of JLD’s texts by which point JHS was very frustrated.
[48] JHS also says that in some of these texts, JLD is asking that he attend at her home midweek for the purpose of disciplining the Child or suggesting that, even though the Child was residing with JLD, JHS should be responsible to get the Child up in the morning to attend school.
[49] In the OCL Report, JLD acknowledges to the Clinician that she struggles to manage the Child’s behaviours and says that she does not feel that it is unreasonable to ask JHS to attend at her home to support her parenting of the Child. The reliability of what is set out in the OCL Report was confirmed by JLD’s oral testimony at the SJM.
[50] In her evidence at the SJM, JLD testified that she told JHS that he could spend as long as he liked at her house for a “visit” with the Child and asked the court, rhetorically, why should she not ask JHS to come over to her house stating: “isn’t he a co-parent?” JLD went on to state that “no one is supporting me” and explained that she refused to let the Child go to his father’s house because of the “games” played by JHS, that, she claimed, were evidenced in certain 2019 text messages.
[51] I find the factual observations made by the Clinician and contained in the OCL Report to be consistent both with JLD’s evidence and with the evidence set out in JHS’s affidavits. As such, I find the OCL Report to be an important and reliable piece of evidence to be considered on this SJM.
Best Interests of the Child Test to be Applied
[52] Section 24(1) of the Children’s Law Reform Act, R.S.O. 1990 c.C.12 (the “CLRA”) directs the court to “only take into account the best interests of the child in accordance with” s. 24. On this SJM, the s. 24 factors have been addressed in the parties’ own evidence and in the OCL Report.
[53] Section 24 (2) provides that in determining the best interests of the 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”.
[54] Section 24(3) of the CLRA sets out the following factors to be considered:
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.
Factors relating to family violence
(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and
(h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.
Past conduct
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. 2020, c. 25, Sched. 1, s. 6.
Allocation of parenting time
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. 2020, c. 25, Sched. 1, s. 6.
Application to related orders
(7) This section applies with respect to interim parenting orders and contact orders, and to variations of parenting orders and contact orders or interim parenting orders and contact orders. 2020, c. 25, Sched. 1, s. 6.
Analysis of the s. 24 Factors in determining the Child’s Best Interests
[55] Set out below is an analysis of the s. 24 factors related to the circumstances of the Child. As per s. 24(2), primary consideration must be given to the Child’s physical, emotional and psychological safety, security and well-being.
Impact of Family Violence - Sections 24 (3) (j) and 24 (4):
[56] The analysis begins with a consideration of the 2016 incident of family violence.
[57] On the SJM, counsel for JHS made thorough submissions with respect to the 2016 incident of violence and its implications under s. 24(4) of the CLRA. As noted earlier in these reasons, in my view, that was a one-time event. In reaching that conclusion, I have also taken into account the Society’s records.
[58] Importantly, in its letter to JHS dated August 4, 2016, the Society advised that it was closing its file, noting that it had not verified the concerns reported regarding domestic violence and, further, that the incident occurred between JHS and JLD, and that the Child was not present and did not suffer emotional harm as a result of being exposed to this conflict. Finally, the Society noted that JHS and JLD had reached a mutual agreement respecting access to the Child.
[59] Following the events of 2016, the parties were able to co-parent and to communicate with respect to the Child. Furthermore, even when JLD dictated very restrictive and limited terms of JHS’s parenting time with the Child, he abided by those terms. Among other things, he exercised parenting time in JLD’s home or near her home and under her supervision as noted in the OCL Report, even though he disagreed with the unfair and overly restrictive terms imposed by JLD. JHS chose to prioritize seeing the Child over engaging in conflict and arguments with JLD.
[60] For all those reasons, when considering the factors relating to family violence listed under s.24(4), I conclude that JHS’s 2016 act of family violence does not have an impact upon the factors set out under s. 24 (j), and, among other things, does not impair or interfere with JHS’s ability to care for and meet the needs of the Child, nor put into question the appropriateness of making an order that would require the parties to co-operate on issues affecting the Child.
The Child’s needs given his age, stage of development and need for stability - s.24(3) (a):
[61] As noted above, JLD lost her housing in or about March 2023. As of the time of this hearing, she and the MGM and the Child were all living in a hotel in Simcoe, Ontario, awaiting placement in new housing. JLD does not know where that new housing will be or when it might be offered.
[62] JLD’s housing instability negatively affects the Child: as at the time of this hearing, it was unknown whether the child would remain in Simcoe and/or in the same school catchment area. It would appear that JLD also recognized her inability to provide for the Child’s needs when she asked JHS to have the Child live with him.
[63] In the six weeks the Child lived with JHS and his family in Brantford, JHS ensured that the Child attended school in Simcoe each day. He also assisted the Child with his homework. JHS says that the Child was provided with structure and routine in his home, something that the OCL Clinician noted was lacking in JLD’s home. JHS asserts, and I accept, that in the brief time the Child was living with JHS, the Child was able to make some academic and socialization gains.
[64] On the evidentiary record before this court, it is clear that JLD struggles to manage the Child’s behaviours and that she has been unable to meet the Child’s educational and socialization needs, which has affected the Child’s emotional and psychological safety, security and well-being.
[65] Both parents agree that the Child’s behaviours can be difficult to manage. As noted, I do not accept JLD’s assertion that JHS is to blame for the Child’s behaviours. Rather, I accept JHS’s assertion that many of the Child’s needs were not being met while he was living with JLD.
[66] In the OCL Report, the Clinician identifies many causes for the Child’s behavioural difficulties. A significant concern identified in the OCL Report, and by this court, is that the Child did not attend in-person school in grade 1 and missed 54 days in his grade two school year. In addition, as noted by the principal at the Child’s school, JLD did not appear to even open the communication bag sent home by the school, by which the school communicated its concerns and suggestions.
[67] At page 14 of the OCL Report, it is noted that:
(a) JLD advised that during the pandemic, the Child completed school online, but the Child was not engaged and disliked online learning. JLD “reported that she did not force him to complete his work”… [W]hen the option to return to in-person learning was given, [JLD] chose to keep [the Child] home due to her mother’s [MGM’s] health issues…[and] did not follow through with any learning for” the Child, “which has impacted his education”; and
(b) the principal at the Child’ elementary school confirmed that the Child did not attend school in person until grade two and that the school was concerned about the Child’s absenteeism and his academic struggles. For example, the principal reported that when the Child started grade two, he knew only one letter sound. The principal reported that the Child had difficulty in math and language and struggles with “self-regulation, collaboration, self-starting, organization and independent work” and “becomes distracted easily and needs reminders to follow routines.”
[68] In her oral testimony on the SJM, JLD acknowledged that the Child did not attend in-person school for his grade one school year. She testified that the Child stayed home from school to reduce his risk of bringing home an illness to the MGM, who lives with them. JLD testified that she kept the child home from school in grade one because she was worried about the MGM, stating she [the MGM] “is all I have left”. From this evidence, I infer that JLD has prioritized the needs of the MGM over the needs of the Child. I find that JLD’s decision to keep the Child home from school, has been detrimental to the Child’s emotional and psychological safety, security and well-being.
[69] The Child’s non-attendance in school was a source of disagreement between JLD and JHS.
[70] At the request of this court, JLD was asked to provide a copy of the Child’s final report card for June of this year. She did so. She agreed that the Child’s June 2023 report card accurately records that the Child missed 54 days of school in his grade two year and the schools view that he needs improvement in virtually every category: that he has not demonstrated the required knowledge and skills and requires extensive remediation in reading, writing and mathematics. This June 2023 report card bears out the concerns raised by JHS in his evidence and as identified in the OCL Report completed in December 2022.
[71] Of particular concern is that JLD reported to the OCL Clinician that the Child was doing well in school and that she was again considering removing the Child from in-person learning as the Child’s frequent illness has had an impact upon her and upon her mother. JLD also acknowledged to the OCL Clinician that JHS did not agree with the Child attending school online because JHS did not feel the child was doing well and needed support.
[72] Reproduced below is taken from p. 15 of the OCL Report:
This clinician is very concerned that if [the Child] is removed from in-person learning while in [JLD’s] care that he will not receive any education. It is also concerning that [JLD] had no insight into how [the Child] was doing at school and that she was not responsive to the school's contact. In addition to this [the Child’s] frequent absenteeism is a concern. While many children have been ill, given [the Child’s] academic issues it is very important for him to be at school. This clinician is not convinced that [JLD] would ensure [the Child] attends school regularly. During a phone call with [JLD] this clinician could hear [the Child] in the background yelling at his video game. When asked why he was home from school she reported that he was ill, but he did not sound ill. [Emphasis added.]
[73] I find that in failing to ensure that the Child attended school and/or supporting him to pursue the usual learning objectives set for children attending grades one and two, JLD did fail, and appears unable, to meet the Child’s needs, which have detrimentally affected his emotional and psychological safety, security and well-being.
[74] A separate, but related concern, arises from the testimony given by JLD on the SJM concerning her inability to take the Child to see a doctor when the Child was ill with strep throat explaining that she could not leave the family dog alone in a hotel or take the dog with them to the doctor. This evidence gives rise to a concern that JLD is unable to meet the Child’s physical needs.
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; - s.24(3)(b):
[75] Respecting this factor, the evidence shows that the Child has a good relationship with each of his parents and, also, with his step-mother. The evidence allowing me to reach this finding includes the affidavits submitted by each parent and the OCL Report, which documents observations made of interactions between the Child and each of his parents, the Society’s reports, and the Clinician’s interviews with the Child.
[76] In her observational visit of the Child and JLD, the Clinician noted that the Child appeared to be relaxed and comfortable in his mother’s presence and that, although he did not always listen to JLD’s direction, neither the Child, nor JLD, made this an issue. The Clinician noted no concerns in her observation of the Child’s interaction with JLD.
[77] In her observational visit of the Child and JHS, the Clinician noted that the Child appeared to be relaxed, and was observed to smile and engage with JHS, who was likewise engaged with the Child. The Clinician noted that the visit was positive and identified no concerns.
[78] The Clinician also states that the Child reports that both of his parents are nice to him. Relevant to JLD’s accusations against JHS, the Clinician notes that the Child said that JHS never told him to be “bad” for JLD. The Child was asked about JLD and reported that she does not do anything with him and that there was nothing he likes to do with his mother: she will not play with him. When asked about his father, the Child advised that JHS takes him to the park; that he likes his visits with his father - “they make him happy” - and that he would like to be able to see his father at his father’s home. The Child also reported that he misses his younger siblings when he cannot see them.
[79] The Child reported that one summer, he went to stay with his father and that his mother “took him back without asking” and is now not allowed to go to his father’s home. That history appears to relate to the events of 2021, mentioned above.
[80] The Clinician’s interview with the Child took place prior to September 2022 and the Child confirmed that he had not attended school in person and was worried about doing so, but excited to make friends.
[81] The OCL Report says that the Child consistently reported that he would like to live with his mother and go to school where his mother lives but would also like to see his father and sleep over at his father’s home. Consistent with the Society’s report, in the OCL Report, the Clinician states that there was no reason to require that JHS’s parenting time be supervised.
Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent- s.24(3) (c):
[82] The evidence on the SJM concerning JLD’s view of JHS’s parenting time is fairly consistent: in her oral evidence on the SJM, JLD was very clear that she wants to control and severely limit JHS’s parenting time with the Child. That evidence, however, conflicts with JLD’s requests in 2021 and again in 2023 that JHS take the Child to live with him.
[83] As noted, JHS called the police in July 2021 after JLD had taken the Child home without telling him. As a result of that police contact, the Society began its own investigation in July 2021.
[84] In its Intake Information Form, the Society reports that the mother (JLD) was upset when the father (JHS) stopped paying child support and she wanted the Child back. Upon investigation, the Society attended at JLD’s home, noting that the Child appeared “okay” and was content to stay with his mother.
[85] The Society’s notes document an interview with JLD in which she confirms that she has always allowed JHS phone contact or “visits” at her home with the Child and essentially confirmed that it was she who dictated when and where JHS saw the Child.
[86] JLD also confirmed that in May 2021, the Child came to be living with JHS because JLD was “having a hard time with” the Child’s behaviour and wanted support from JHS. The Society’s notes also read that JLD decided to send the Child to live with JHS because the child’s behaviours were so bad and because she has been “stressed out because of that and the pandemic.” JLD then went on to say that every time JHS gets the Child, he keeps the Child and that “she is done and [is] no longer letting him [JHS] have access”.
[87] In its notes, the Society identified its concern that the Child was caught in the middle of his parents’ custody dispute. The Society also identified its worry that the dispute meant that the Child was not allowed consistent access with his father and that the Child’s relationship with his father could suffer as a result, which could have an impact on the Child’s emotional well-being.
[88] The Society wrote to JHS on October 8, 2021, advising that JLD did not wish to work with the Society and, as a result, the Society was closing its file.
[89] In November 2021, the Society was asked by JLD to reopen its file in anticipation of a court hearing, that was instituted by JLD. The Society’s records indicate that JLD was still angry that JHS had left her to start a new family and that JLD was struggling to accept the end of their relationship and with single parenting. The Society indicated its concern that if JLD did not seek counselling or obtain additional supports and services that would help her improve her current mental well-being and her co-parenting-skills, it might be required to reopen its file. Again, the Society noted that JLD’s worries about her struggles to co-parent were having an impact upon the Child’s ability to maintain a relationship with his father.
[90] In its report created December 23, 2021, the Society stated that JLD did not want the Child to have a relationship with both his parents and, consistent with the concerns later identified in the OCL Report, the Society notes, in part, that:
- JLD does not feel that routine and structure would improve the Child’s “anger and upset”;
- JLD does not feel that counselling would be beneficial as she “has no time”;
- JLD is not sending the Child to school because the other parents are “idiots” and are not careful about Covid and, (I infer from the redactions), that JLD stated that her mother would die [from COVID-19] if she caught it;
- JLD could not manage her son and may send him to his father to live. JLD feels that she that only one parent should be parenting the Child; JLD does not feel she can co-parent, and that having two parents in different houses is “too hard”;
- JHS sees the Child as much as JLD will allow. JHS and the Child want more visits which, JHS believes, is why the Child is acting out; and
- JHS does not speak negatively of JLD to the Child and when the child says nasty things about JLD, swears, or misbehaves, the Child gets disciplined.
[91] The Society’s notes confirm that the pending court date was in December 2021, which is the date on which Ramsay J. requested the involvement of the OCL.
[92] Taken as a whole, there is little disagreement on key issues: JLD has and wishes to continue to limit and control JHS’s parenting time with the Child; the Society and the OCL have communicated to JLD the need for the Child to have regular and expanded parenting time with his father and the harm caused to the Child by the restrictions and limits placed on parenting time by JLD.
[93] As evidenced by the OCL Report, the concerns identified by the Society in 2021, were still ongoing when the Clinician undertook her investigation between June 2022 and December 2022.
[94] Despite the involvement and recommendations of the Society and the involvement and recommendations of the OCL, the evidence shows that JLD has neither changed her views, nor her behaviour. The concerns expressed by the Society and by the Clinician that the Child would suffer harm attributable to JLD’s conduct and her lack of insight into the impact of her conduct upon the Child’s physical, emotional, and psychological safety, security and well-being have actualized.
[95] Based on the evidentiary record on this SJM, I agree with and adopt the following observations and concerns identified at p. 15 of the OCL Report that:
(1) JLD has not prioritized the Child’s relationship with his father and siblings;
(2) JLD’s inability to manage the Child’s behaviours has resulted in the Child having a limited relationship with his father;
(3) had JHS not prioritized his relationship with the Child, the Child would not have any contact with his father; and
(4) JHS has prioritized his relationship with the Child, showing consistency in his visits and it is apparent that JHS and the Child have a positive relationship;
[96] The OCL Report also specifically cites concerns respecting the Child’s education, JLD’s refusal to seek support in managing the Child’s behaviours and her refusal from the summer of 2021 until May 2023 to allow the Child to see JHS at his home (other than for the six-week period during which JLD asked that the Child live with JHS). Based on these – and other – observations the OCL Report concludes that it is in the Child’s best interests for JHS to have sole decision-making for the Child, after consulting with JLD before he makes any final decisions concerning the Child’s health, education, and religion. I agree.
The history of care of the child - s.24(3)(d):
[97] As noted above, for the most part, the Child has had his primary residence with JLD, and after 2018, JLD appears to have controlled decision-making for the Child. As set out above, JLD was not able to meet the Child’s needs for a variety of reasons including: JLD’s anger at JHS, and JLD’s choice to prioritize the needs of the MGM over those of the Child. Whatever the cause, in the result, JLD’s control over decision-making and the Child’s living arrangements with JLD, have been detrimental to the Child.
[98] There is no evidence before the court that could support a finding, or even optimism, that JLD could, or would, change her behaviour. There is compelling evidence that JLD does not recognize the harm that her decisions have caused the Child (as identified in the OCL Report and, as seen in the Child’s June 2023 school report card). To do that, JLD needs to accept that she should seek help and counselling so that she might learn how to meet the Child’s needs.
[99] I have no doubt that to allow the status quo to continue would risk causing future harm to the Child and that it is not in the Child’s best interests for JLD to retain decision-making control over the Child.
[100] By contrast, I accept the evidence put forth by JHS that when living with JHS and his family, the Child was also able to enjoy and benefit from his relationship with his two younger half-siblings; and when the Child was living with JHS and his family in their home in Brantford from March 2023 to May 2023, the Child was transported to and from Simcoe to attend school each day and that, because of JHS’s work with the Child on his schoolwork, the Child showed some academic gains.
[101] The evidentiary record before me shows that JHS prioritized the Child’s need to have regular contact with his father by acquiescing to JLD’s demands concerning when, where, and for how long, JHS was permitted to have parenting time with the Child - even when that meant that JHS had to do so in JLD’s home and under her supervision.
[102] I accept JHS’s evidence that even though he did not agree with JLD’s demands, he wanted to spend as much time as possible with the Child and to avoid engaging in a conflict with JLD which, JHS recognized, would cause emotional and other harm to the Child. In other words, JHS prioritized the Child’s needs over his own wish to have parenting time with the Child at his home and without the supervision and control of JLD.
[103] Finally, I also accept JHS’s evidence that in JHS’s home, the Child’s needs for structure and stability can and will be met, together with the Child’s other physical, emotional and psychological needs. I note that JHS’s spouse is at home full-time and has demonstrated that she is willing and able to be a step-mother to the Child.
The child’s views and preferences, giving due weight to the child’s age and maturity – s.24(3)(e):
[104] The evidence shows that the Child has a good and warm relationship with both his parents. I have also noted the Child’s stated wish to live with his mother and to have expanded and overnight time with his father and his siblings and stepmother. Notwithstanding the Child’s stated wish to reside with his mother, for the reasons already set out, I find that it would not be in the Child’s best interests to do so.
The Child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage - s .24(3) (f):
[105] There is no dispute concerning the factors listed under s. 24(3) (f) and, I need not address it.
Any plans for the child’s care - s.24(3) (g):
[106] For the most part, JHS accepts the recommendations set out in the OCL Report. He agrees that week-about parenting time should take place in the summer but that for this year, it should be only for July, so that the Child may get settled in his new home in Brantford and be ready to start in-person school at a new school in Brantford.
[107] As mentioned above, I made a temporary order for week-about parenting time to commence on June 30, 2023. I accept JHS’s submissions that week-about parenting should extend only to the month of July 2023 and that the regular parenting time schedule should commence in August of this year.
[108] JHS’s plans for the Child’s care are fleshed out in the draft order submitted by JHS on the SJM, a corrected version of which was uploaded to CaseLines on July 6, 2023. The terms of the draft order are set out at Schedule “A” to these Reasons; the names of the parties and the Child’s name and birthdate are not reproduced in Schedule “A”, but would be included in the order to be signed by me. Also, Schedule “A” does not reference costs, which are addressed in the body of these Reasons.
[109] In broad terms, JHS’s draft Order contemplates that:
(a) JHS shall have sole decision-making for the Child in all aspects of the Child’s life, but prior to making major decisions, he will consult with JLD with disclosure of all relevant information. JHS proposes to enroll the Child in counselling, and also, to arrange for evaluations of the Child as may be recommended by the Child’s school or physician;
(b) the parties will communicate exclusively on Child-related matters using an application such as AppClose or Our Family Wizard or similar application; they shall respond to such communication within 48 hours; and shall not communicate through the Child;
(c) a detailed parenting schedule will be adopted, in which the Child resides with JHS in Brantford and has parenting time with JLD on the second, fourth and, where applicable, the fifth weekend of each month. In addition, JLD is to have telephone or video parenting time with the Child, twice per week, each for a maximum of 30 minutes;
(d) in 2023, summer holiday parenting time will consist of alternate weeks in the month of July. Commencing July 2024, the week-about parenting time is to extend to August 2024. Also, the other usual holidays will be equally shared (i.e Christmas, Family Day, March Break, Thanksgiving, etc.);
(e) as JLD does not drive, JHS proposes to assume responsibility for arranging for the transportation of the Child to facilitate JLD’s parenting time;
(f) the parties will share financial information annually and support for the Child will be paid by JLD in accordance with the Ontario Child Support Guidelines, with JHS entitled to claim all tax benefits and credits related to the Child.
[110] JLD did not submit a draft order and relies instead on the proposed plan set out in her amended Notice of Application which contemplates an order granting JLD sole decision-making authority and primary residence for the Child, and leaving the parenting time to JHS to be determined entirely in JLD’s discretion.
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 – s. 24(3)(h):
[111] The evidence concerning this factor has been touched upon earlier in these reasons and supports a finding that JLD is neither able, nor willing, to meet a number of the Child’s needs.
[112] The evidence leads me to conclude that the Child’s needs will be met by JHS. Also, as set out in his proposed draft order, JHS is willing to facilitate positive and regular parenting time between the Child and JLD.
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 – s. 24(3)(i):
[113] There is evidence that the parties have experienced difficulty in communicating. However, there is also evidence that JHS and JLD have been able to communicate and cooperate on matters affecting the Child. Taken as a whole, the evidence supports a finding that JLD was not willing to co-operate with JHS and that her communication was inappropriate at times and not Child-focused. By contrast, the evidence shows that JHS has taken a Child-focused approach in his dealings with JLD and has gone above and beyond to co-operate with JLD and to accommodate her wishes and demands, however unreasonable. That lengthy history supports a finding that if JHS is granted decision-making in respect of the Child, he will communicate and co-operate with JLD.
Conclusion
[114] For the reasons out set out, I conclude that the best interests of the Child will be best met by having him reside with JHS, and for final decision-making to be with JHS. In reaching that conclusion, I have considered all factors related to the circumstances of the child, and given primary consideration to the Child’s physical, emotional and psychological safety, security and well-being.
Orders Made
[115] JLD’s application is dismissed.
[116] JHS’s SJM is granted on the terms set out at Schedule “A” attached to these Reasons.
Costs
[117] If the parties cannot agree on costs, they may schedule a brief hearing (via ZOOM) before me to make costs submissions.
Justice Liza Sheard Released: July 14, 2023
Schedule “A”
The parties’ child, [NAME, DOB] (“the Child”) shall reside primarily with the Respondent.
The Respondent shall have sole decision-making with respect to the Child. Prior to making major decisions with respect to the Child, the Respondent shall consult the Applicant, and this consultation shall include the provision of all relevant information.
Specifically, but not so as to limit the generality of the foregoing:
a. The Respondent shall be entitled to enroll the Child in school and in counselling without the written consent of the Applicant.
b. The Respondent shall arrange for any physical, psychological, or socio-educational evaluations, testing, assessments or other steps that the Child’s school or physician consider advisable and/or appropriate. The Applicant’s written consent to any said evaluations, testing, or assessments shall not be required but she shall be promptly informed of all details.
c. The Respondent shall be entitled to apply for a passport for the Child, at his expense.
d. The Child’s birth certificate, passport and other identification shall ordinarily be in the keeping of the Respondent.
The Respondent shall communicate to the Applicant the names, addresses, and contact information of any school, after-school program, tutor, physician, counsellor, or other professional(s) where the Child is enrolled or from whom the Child receives care.
The Applicant shall be entitled to obtain directly and at her own cost (if applicable) from the Child’s school and health practitioners any and all information regarding the Child.
Except in the case of an emergency, the parties shall communicate solely using AppClose, Our Family Wizard, or another parenting application to be chosen and paid for (if applicable) by the Respondent. This communication shall be with respect only to the Child and shall at all times be civil, reasonable, and limited to no more than once per day. The parties shall respond to one another’s parenting-application communications within 48 hours.
The parties shall not communicate through the Child under any circumstances. This shall include discussing with the Child any desired change in the parenting schedule before the change has been discussed with the other parent and agreed upon between the parties.
The Respondent shall have parenting time with the Child at all times except when the Applicant has parenting time.
The Applicant shall have regular parenting time as follows:
a. From Saturday at 9:00 am until Sunday at 6:00 pm on the second, fourth, and fifth (where applicable) weekends of each month, where the second weekend of the month begins on the second Friday, the fourth on the fourth Friday, and the fifth on the fifth Friday. When a weekend during which the Child is to be in the Applicant’s care is proceeded or succeeded by a day off school, the Applicant’s weekend shall be extended accordingly.
b. Virtually (by telephone or video) on Tuesday and Thursday for a minimum of 15 and a maximum of 30 minutes. The call shall be initiated by the Applicant using Messenger Kids or the parenting application, failing which the virtual parenting time shall be forfeit. This parenting time shall be child-centred and appropriate.
c. At such further and other times as the parties may agree in advance in writing.
The Applicant shall have holiday parenting time as follows.
a. In the summer of 2023:
i. in alternating weeks for the month of July, with parenting exchanges taking place curbside on Friday afternoons and the Respondent having the first week following the last day of school.
ii. on the regular parenting schedule set out at 9(a), above, for the month of August. The Child shall be in the Respondent’s care no later than 10:00 am on the day before Labour Day.
b. In the summer of 2024 and subsequent years: in alternating weeks, with parenting exchanges occurring on Friday afternoons and the Applicant having the first week following the last day of school. The Child shall be in the Respondent’s care no later than 10:00 am on the day before Labour Day, after which the regular parenting schedule shall resume.
c. Commencing in 2023 and continuing in odd years thereafter, for the first week of the Child’s Christmas holiday.
e. Commencing in 2024 and continuing in even years thereafter, for the second week of the Child’s Christmas holiday.
f. Commencing in 2025 and continuing in odd years thereafter, for the Family Day weekend.
g. Commencing in 2024 and continuing in even years thereafter, for the Child’s spring break.
h. Commencing in 2023 and continuing in odd years thereafter, for the Thanksgiving weekend.
i. Each year on Mother’s Day.
The Respondent shall be responsible for arranging the transportation of the Child for the Applicant’s parenting time. A reasonable inability to transport the Child for safety reasons (including but not limited to unsafe highway conditions) shall not be deemed a denial of parenting time.
The Child shall always be at liberty to contact the other parent. The party who does not have parenting time shall be responsible for ensuring that this virtual parenting time is child-centred and reasonable and that it does not tend to undermine the authority of the other parent or to unduly disrupt the other parent’s household’s schedule.
Any virtual parenting time exercised by either party shall be conducted using Messenger Kids or a similar application on a device belonging to the Child and/or reserved for his use, said device to travel with the Child. If the Child’s device is not available, virtual parenting time shall be exercised through the audio/video calling function of the parenting app.
The Child’s health card shall travel with him for parenting time.
Both parties shall be at liberty to attend the Child’s school and extracurricular activities and each of them shall be responsible for their own transportation for same.
Either party may travel within Ontario without the express written consent of the other party. For any contemplated in-province travel outside a 200 km radius of the Child’s ordinary residence and/or for longer than 3 days, the travelling party shall provide to the other party an itinerary, including destination and contact information.
Upon no less than 4 weeks’ notice, either party may travel abroad with the Child with the written consent of the other party, said consent not unreasonably to be refused. The travelling party shall make arrangements for and shall be responsible for the cost of preparing and signing any necessary consent forms or travel letters, and the non-travelling party shall promptly comply.
Except for scheduled parenting exchanges, neither party shall attend at the home or workplace of the other without prior notice and consent.
Neither party shall speak negatively about the other party or any member of that party’s household in the presence of the child and shall make his or her best efforts to ensure that no one else does so.
The December 21, 2021 Child Support Order in this matter shall be vacated.
The Applicant shall pay child support to the Respondent pursuant to s. 3 of the Ontario Child Support Guidelines in accordance with her income.
The parties shall proportionately share the cost of special and extraordinary expenses for the Child, save and except that neither party shall be responsible for any portion of the cost of an elective special or extraordinary expense about which he or she was not consulted and/or to which he or she did not expressly agree in advance. Neither party shall unreasonably refuse consent.
On or before June 30 of each year, each party shall deliver to the other a complete copy of his or her tax return and notice of assessment.
Each party shall maintain any medical or dental coverage for the benefit of the Child that may be available to him or her through employment or social assistance.
The Respondent shall be entitled to claim all tax benefits and credits related to the Child.
Footnotes:
[1] I have determined to initialize the names of the parties to protect the important public interest of protecting the child, who is referred to in this decision, from the risk of emotional or psychological harm that could be caused if his identity were made public.
[2] 2014 SCC 7, [2014] 1 S.C.R. 87.
[3] Ibid, at para. 49.