Court File and Parties

COURT FILE NO.: FC-19-0267 DATE: 2023/07/21

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Kelly Mae Jones Applicant – and – Chris Widenmaier Respondent

Counsel: N. Lee for the Applicant J. Solomon for the Respondent

HEARD: November 2-4, 2022, March 9, 10-13, 2023-Brockville

REASONS FOR DECISION ON TRIAL

ANNE London-Weinstein J

Background Summary:

[1] The Applicant Mother, and the Respondent Father met after making contact on a dating app called Plenty of Fish. They were involved in a brief dating relationship resulting in the birth of the child, River Willow Jones, born October 6, 2018. The parties never lived together and the relationship broke down. The child is now four years old and lives with her mother, her half-brother Noah, age 13, and her stepfather, Daryl De Jong in Prescott, Ontario. The Mother married in 2022. The parties live about hour and 20 minutes apart. They have historically been unable to communicate with each other in a civil manner.

[2] The Father is not married but in a committed relationship. He lives in a mobile home on his family’s dairy farm in Perth, Ontario. He works full time driving a milk truck. The Mother operates an organic wild-flower business from her rural home.

[3] The Mother commenced the Application, seeking parenting orders and child support in July 2019. The Father initially denied paternity. The Mother also advised the Father by text that a paternity test was warranted. His paternity was confirmed in November 2019. The Father brought a motion for expanded parenting time in May 2022. The Father was granted three hours of unsupervised parenting time per week.

[4] The exchanges for the Father’s temporary parenting time were ordered to take place at the Rose Garden Family Support Exchange Centre in Brockville.

[5] The evidence in this trial revealed two persons who did not know each other well when the child was conceived. The Father wanted the pregnancy terminated. The Mother refused to do so. The Father felt manipulated by the Mother. Both parties engaged in unfounded mud-slinging against the other parent during this trial. The Father claimed the Mother has narcissistic personality disorder that the Mother was a former drug trafficker and that she deliberately became pregnant to ensnare him. He claimed that she sexually assaulted him by having sex with him without a condom and without his consent. The court was not satisfied on a balance of probabilities that any of these accusations have been proven.

[6] The Mother claimed in her pleadings that the Father was a drug user, that he operated a motor vehicle while under the influence of cannabis, and that he was a drug trafficker. The court does not find that any of these accusations by the Mother were established on a balance of probabilities. There were credibility issues relating to the evidence of both parents. However, the court was satisfied that they both love the child, and both can put the child’s needs ahead of their own.

The Issues to Be Determined:

[7] The issues in this trial are: Who should make decisions for the child—and the related question of whether a parallel parenting plan is in the best interest of the child; Where the child should reside; The allotment of parenting time to reflect the best interest of the child; Where exchanges of the child should take place; Whether income should be imputed to the Mother; The calculation of 7 expenses; Whether the Father is owed money by the Mother including $3,000 he claims he provided. The issue of the child’s name change was dealt with by way of consent.

The Position of the Parties:

Mother’s Position:

[8] The Mother is requesting an order for primary decision-making with parenting time to the Father. The Mother seeks the authority to make all decisions relating to the child. The Mother submits that the ineffective communication between the parties and the history of conflict would make it impossible for the parties to make joint decisions, which would not be in the best interest of the child. Also, she submits that a parallel parenting regime is not workable as the parties are unable to achieve the requisite level of cooperation. The Mother has been the primary parent for the entirety of the child’s life. The Father has had much less time with the child. The geographical distance between the parties makes a parallel parenting scheme not in River’s best interest. She seeks that the Father continue to pay child support at the Guidelines amount and his proportion of s. 7 expenses. She seeks an order that the Father retain the $60,000 life insurance policy he has through his employer and increase the total coverage of his life insurance to $100,000. She seeks that she be made a beneficiary of the policy in the event of his death, in trust for the child.

[9] The Mother testified at trial and called two witnesses, Danielle Bigras and Steven Perrin.

Mother’s Evidence:

[10] The Mother testified that she and the Father were involved in a brief dating relationship, and she became pregnant by the Father.

[11] The Mother lives just outside of Prescott on a 38 acre farm. The child currently resides with the Mother. The Mother has a son, Noah, age 13 from a prior relationship who lives with her, along with her husband, Daryl De Jong. She married Mr. De Jong in September 2022.

[12] River attends Wellington Elementary School in Prescott. The school is just 1.5 km from the Mother’s home. Noah spends every second weekend at his father’s home. River enjoys living on the farm with the goats and chickens.

[13] The Mother testified that the pregnancy was unplanned, and River was conceived in January of 2018. When she showed the Father the pregnancy test, he appeared to be in shock. He attended appointments with her for ultrasounds and some other medical appointments. The Mother testified that the Father was disappointed when he learned the gender of the child.

[14] The Mother testified that the pregnancy was unplanned. The Father acted differently toward her almost immediately after learning of the pregnancy.

[15] In cross-examination, the Mother agreed that she had initially said she had received her period and that they were “safe” and now could have a great chance at their relationship. However, she later advised the Father that she was pregnant. She denied the claims of the Father that she sexually assaulted him by having sexual intercourse without a condom, without his consent, so that she could become pregnant.

[16] She denied telling the Father at the meeting at the Lanark Landing restaurant to quit his job. She denied demanding that they open a joint banking account. She agreed that they discussed her moving to the mobile trailer and that she declined to do so, which upset the Father. However, she explained to the Father that she could not uproot her son.

[17] The parties tried to resolve the issue of what to do in the relationship once the pregnancy was realized. It became difficult to communicate. The text messages between the two parties which were an exhibit in this trial support this conclusion.

[18] The parties talked about the Mother living with the Father in his trailer in Perth, next to his parent’s home on the family farm, and also possibly moving in together in Prescott. The parties were not able to resolve the issue of where they would live together.

[19] The Father visited the Mother in August prior to the child’s birth. His mother accompanied him. The visit did not go well. The Mother testified that the Father became argumentative and irate. He was raising his voice. The Mother became upset by the Father’s tone. She said he was insulting her and belittling her. She was eight months pregnant at the time. She threatened to call the police if he attended for a visit uninvited. In cross-examination she agreed with Mr. Solomon, that the Father indicated in a text to the Mother that he was uncomfortable around the Mother, not the child.

[20] The Mother agreed that both the Father and his mother, Laurie Widenmaier, visited the child after the child was born. The Mother had requested financial support for the child. The Father brought some clothing and diapers for the child. The Mother also arranged for the Father to meet the child when she was three months old. His parents attended, as did the Mother and her family. The Father did not attend.

[21] The Mother said that she tried to encourage the Father to attend the child’s birth. She said she did not receive a direct response from him indicating that he planned to attend the birth. However, text messages submitted as an exhibit at trial indicated that the Father had indicated an interest in attending the birth. The Mother did not inform him when she went into labour. The phone records also indicate that the Mother and Father had a 26 minute phone call on October 4th, just two days before the child was born. The Mother testified that she had no idea if they discussed the Father’s attendance at the birth. The child was born on October 6th at 12:36 p.m. Given the proximity of the call to the birth of the child, I find it unlikely that the Father’s attendance, or non-attendance at the birth was not discussed. I find as a fact that despite her evidence to the contrary, that the Mother did not wish the Father to attend the birth. Given the acrimony between the parties at the time, this feeling by the Mother was not surprising.

[22] The Mother testified that the Father became very angry when she did call him to inform him that River had been born. The Mother placed this call within a few hours of the child’s birth. The Father was called by the Mother at 3:51 a.m. to inform him that the child had been born. She indicated that the Father had called back and was swearing at her. There were two more calls at 3:57 a.m. of short duration. The phone logs indicated that there were no further phone calls between the parties until November 14th. The Mother disputed the lack of calls and claimed that she called the Father but was not able to get through.

[23] In cross-examination, the Mother conceded that while she had testified that the Father had no interest in seeing the child, he had texted her and asked when he could see the child shortly after her birth.

[24] Prior to the child’s birth, the Mother texted the Father advising him that he had “zero rights” if he was not “around for the pregnancy and birth.” She indicated that the Father kept arguing with her. She said that she had begged him to try to come to some arrangement with respect to child support and being involved with the child.

[25] The Father texted the Mother that she should at least keep him updated on what was going on as she said she would and that he was concerned.

[26] The Mother denied ever being diagnosed with Narcissistic Personality Disorder as claimed by the Father. She agreed that she had Attention Deficit Hyperactivity Disorder (ADHD).

[27] The Mother agreed that when the Rose Garden Family Support Centre was closed during COVID-19, that the Father proposed meeting in a public park to see the child. The Mother indicated that fear of further allegations prevented her from agreeing to let the Father see the child outside of the Rose Garden when it was closed. She testified that supervised parenting time began in May of 2021. She indicated the Father did not seek parenting time at this point.

[28] She agreed that the child loves her Father and that they have a bond. She testified that the Father threatened to have her children removed from her care if she pursued a claim of child support. A text message submitted in this trial corroborated the Mother’s evidence on this issue.

[29] On January 1, 2019, the Father texted the Mother as follows: “It was personal Kelly Mae, I would rather not be forced to take legal action against you but if that is the route you wish to take, then I’m going to be left with not much other options and I would sincerely hate to see your children be taken away from you.”

[30] She denied he gave her $3,000, but agreed he gave her $60 for groceries and money for rent. She also agreed he paid for her winter tires.

[31] The Mother testified that the Father also would not agree to meet his daughter in the months after her birth. I agree with the Mother’s evidence on this issue and found as a fact that he first saw his daughter in December 2018. The Mother had advised him that she would seek legal counsel if he would not meet the child or help her with the child.

[32] The Father attended with his mother and brought diapers. The Mother made further attempts to have the Father meet with the child and so that the parties could discuss how the Father was going to support the child. This meeting happened in a restaurant when the child was three months old. The Father’s mother attended, as did his father Edward Widenmaier. The Mother’s sister Sherry also attended along with the Mother and River. The Father did not attend.

[33] The Mother asked the Father for financial help. When he failed to respond with appropriate financial support, she commenced an application in July of 2019. She testified that prior to that date the Father had given her $40 to $60 for groceries. He also paid a small portion of her rent, she said.

[34] The Mother testified that when she advised the Father that she was contemplating court action for support he said that if she got a lawyer and sought child support he would build a case against her, and have both of her children taken from her.

[35] On July 5, 2019, at 4:35:29 p.m. the Father did text that he hoped the Mother’s children would not end up in foster care. The Mother responded that this was a threat and the Father responded: “LOL, not that’s no threat, it’s part of the system.” “And that decision would not be up to me anyways, I wouldn’t want that to happen to any child. But it does happen all of the time.” 4:38:42 pm.

[36] During her pregnancy she was receiving benefits from Ontario Works and picked up food for herself and her son from the food bank as she was too nauseated to work due to the pregnancy. Prior to bringing a claim in court she received sporadic text messages and calls from the Father. After the application was served on the Father, she did not receive a single text from him again.

[37] Throughout 2000 and the first five months of 2021, the Father had no access to the child. He did not ask for it, according to the Mother. His parenting time involved one hour of supervised parenting time at the Rose Garden Family Support Centre in Brockville.

[38] In May 2022, the Father brought a motion seeking enhanced parenting time. Thereafter he spent three hours of unsupervised parenting time with the child. The Mother conceded that the relationship between the Father and the child was becoming stronger and the expanded parenting time is going well.

[39] The Mother testified that the Father does not write in the Rose Garden communication journal but the paternal grandmother does. The Mother recognized that it was important for the child to have a relationship with the paternal grandmother. The Mother has shared the child’s milestones with the paternal grandmother and she regularly attends the visits at the Rose Garden Family Support Centre. The evidence from the Rose Garden Family Support journals supports the inference that the child and the grandmother have also developed a strong bond. The evidence tendered from the Rose Garden Family Support Centre also supports the inference that the Father has in more recent history, diligently pursued a relationship with his daughter. They have developed a strong bond.

[40] The Mother expressed concern that the Father may be living with another woman whose identity was unknown. The Father testified that he lived alone. I accepted his evidence on this issue. He was corroborated on this issue by his parents, who both testified in this trial.

[41] The Mother testified that if the child has adjustment issues relating to expanded parenting time with her father, that she would help her daughter navigate those feelings. She was open to the paternal grandmother visiting the child alone. I found that the Mother recognized the importance of the relationship between the paternal grandmother and the child. She shared the child’s milestones with the paternal grandmother. She has expressed a willingness to share holidays with the Father. She offered more time at the motion for expanded visitation time than was ultimately decided by the motions judge.

[42] The Mother testified that the Father did not ask for updates about the child. The child has made new friends at school and enjoys her teachers. She is in French immersion. She can sing all of her colours in French and has adjusted well. Noah is also in French immersion. The Mother testified about the child’s daily routine. The Mother runs an organized household and the children have established a positive and healthy routine in the home.

[43] River has friends including Gwen Bigras, the daughter of Danielle Bigras, who testified in this trial as a witness for the Mother. She also has another friend Quinn. The child’s aunt Sherry, who lives in Smith Falls, is very involved with the child. The child enjoys the activities on the farm. The Mother runs a wildflower business from the farm.

[44] The Mother denied the Father’s assertion that she had Narcissistic Personality Disorder as claimed by the Father. She also denied ever trafficking marijuana to Queens University students. I did not find that the Mother had NPD, or that she trafficked marijuana previously.

[45] I found that there was some evidence to suggest that the Mother tended to be controlling regarding the Father’s time with the child. For example, she refused to allow the child to attend the Father’s home in Perth to visit at Christmas, although the Father had a four hour visit that day. The Mother also approached the child in a store when the child was out with her Father during his time with the child. The Mother claimed that she accidentally saw the child, and it would have been unnatural not to approach her. Given the Father had such limited ability to spend time with the child and it had to be in Brockville due to time limits, it was unfortunate that the Mother was not more careful to avoid accidental contact with the child during the brief time she had to spend with her Father.

[46] I also did not accept the Mother’s evidence that she had no affiliation with the Rose Garden Family Support Centre in Brockville. The text messages in this case clearly reveal that the Mother advised the Father she used to work at there.

Mother worked at Rose Garden previously:

[47] On June 5, 2018, at 5:10:19 p.m. the Mother wrote to the Father: I worked in social services for years. I am still employed at Rose Garden (supervised visitation) as a contract worker. This is exactly the kind of stuff I’ve seen over the years, and I know it all too well.

[48] The Father repeatedly asked for a neutral location for the visits, given the Mother’s history with the Rose Garden Family Support Centre in Brockville. The Mother refused and simply denied she had any history with the Rose Garden. In my view, this inconsistency undermined the Mother’s credibility. This evidence also demonstrated that she was willing to ignore the Father’s concerns regarding neutrality. I found that a more neutral location for the exchanges is mandated given the Mother’s history with the Rose Garden Family Support Centre in Brockville. Therefore, the initial visits and exchanges which I have ordered will take place at the Rose Garden Family Support Centre in Smiths Falls.

Evidence of Danielle Bigras:

[49] Ms. Bigras has known the Mother for four years. She has four children. Her son is friends with the Mother’s son. Her daughter is also friends with River.

[50] The girls attend French immersion junior kindergarten together and have play dates and are best friends. Some of the play dates have occurred at the Mother’s farm. She described River’s relationship with her stepfather as beautiful. She said River loves her mom. She described the Mother as being kind and caring and engaging, but with firm boundaries. She described the relationship with Noah as being very close.

[51] She testified that from what she has observed, the Mother always wanted the Father to be involved in the child’s life. She also indicated that from her observations, that the Mother and Noah’s father co-parent well together.

Evidence of Steve Perrin:

[52] Mr. Perrin is the Mother’s neighbour and has known her for about 10 years. He has a son named Avery who is roughly the same age as Noah. The boys are friends. Mr. Perrin described Noah as a very well-mannered boy. His house burned down in 2017 and the Mother assisted him during that time. He described the Mother to be an easy-going person. He found her husband Daryl to be a relaxed person. He attended their wedding. He also met the Father when he was there to help the Mother with lawn mowing. He found that the Father wished to speak primarily about his material possessions such as his truck.

Father’s Position:

[53] The Father requests an equal shared parenting schedule and a parallel parenting regime. He submits that a parallel parenting regime will ensure that both parents are able to participate in significant decisions in River’s life. Given that joint decision-making will not work because of the hostile relationship between the parties, he is of the view that each parent should be given final decision-making power if the parties cannot agree on a major issue. The Father concedes that he was slow to be involved with the child. He is more recently more involved in the child’s life.

[54] He proposed that River either attend school in Perth, where he resides, or a school in Toledo, which is midway between Perth and Prescott. He proposed that the child live with him for 50 per cent of the time. He seeks that pick up and drop offs shall occur in Smith Falls, Ontario. He seeks an order that the court impute income to the Mother in the amount of $40,000 per annum. He seeks an order that special expenses be shared proportional to each party’s income. He originally sought an order that the child’s name be changed to Widenmaier and that both parties’ consent to complete the necessary paperwork to complete the name change. However, the parties consented to changing the child’s last name to Jones-Widenmaier. The costs of carrying out that name change is to be agreed upon by the parties. The Father seeks an order that the parties shall not relocate outside of the Brockville/Smith Falls, Perth, Prescott region with the child, without the express written consent of either parent.

[55] The Father agrees to obtain life insurance in his name in the amount of $100,000 and maintain the $60,000 in place with his current employer. He requests that the money be held in trust by the executor of his estate, with instructions to continue to pay monthly child support amounts.

[56] He seeks an order that the Mother obtain life insurance in the amount of $100,000 in which the proceeds of the support shall be held in trust for the benefit of the child. He seeks the cost of the proceedings and pre and post judgment interest.

[57] The Father testified at trial and called four witnesses: Laurie Widenmaier, Edward Widenmaier, Gail McAdam and David Beggs.

Evidence of the Father:

[58] The Father is currently in a committed relationship with Tabitha Agoune and has been for the last few years. Ms. Agoune has two children Aubrey and Ashland, age 9 and 13 respectively. The Father has been driving a milk truck for Ottawa Valley Milk Transport for eight years. His hours of work are from 7 a.m. to 5:30 p.m. He works 80 hours every two weeks and earns approximately $52,000 per year. He has health and dental benefits provided to him through the Dairy Farmers of Ontario. He has life insurance in the amount of $60,000. He graduated from Grade 12, attending St. John’s Catholic High School in Perth until Grade 10. He transferred to Perth District Collegiate Institute for Grade 11 and 12.

[59] He has successfully completed the AZ licensing course to obtain his trucker’s licence. He has two older brothers and two younger brothers. He lives in a well-appointed mobile home on the same property as his family farm. The farm has been in the family for four generations. He helps his father Edward out with the farm chores when he can. He helps with haying and harvesting and sometimes with milking. The farm has 100 head of cattle and 40 sheep.

[60] His parents live in a five bedroom farmhouse. The Father pays $200 rent to his father. The Father has lived in the mobile home for 10 years. He and his mother prepared a room for the child, River. The room is appropriately decorated for a child of River’s age. He purchased toys which are age appropriate and a bicycle. River has ridden the bicycle three times. The bicycle has training wheels and River picked out the basket for the bicycle. The Father also purchased a helmet for her and a Paw Patrol bell for the handlebars of the bike.

[61] The mobile home has one washroom with a bathtub. There is a wood stove and furnace in the mobile home along with electric heat.

[62] The Father testified that he met the Mother on Plenty of Fish, an online dating app. They began talking on the app in October 2017. The Mother then provided her phone number, and the pair began texting in November 2017. After they began texting with each other, they no longer used the app. They also made phone calls to each other.

[63] The Father testified that he indicated on his profile that he was looking for a serious relationship and possibly having a family some day.

[64] The Father testified that the Mother’s profile, on the other hand was brief. She indicated she was interested in farming and was looking for someone with whom she could share her life.

[65] The Father indicated that the pair talked from November until mid to late December. He described the Mother as being adamant about when she was going to meet him. He agreed to meet with her on December 22nd in a restaurant in Merrickville. They went out for dinner multiple times. On her son Noah’s birthday in January 2018, he met her mother and her stepfather.

[66] He went tobogganing a few times with Noah and gave him rides on his four-wheeler. He used the four wheeler to plough the Mother’s driveway that winter. They also went for nature walks in the bush. Noah went on the four-wheeler with him, they went tobogganing a few times, out to dinners several times and the movies. Noah came to visit at the farm a few times.

[67] He also gave Noah gifts, including a slingshot and a remote-control truck. He felt that Noah lacked confidence in his own opinions and struggled to be able to express his own opinion. The Father met Noah when the child was nine.

[68] The Mother attended his home a few times. He never met her sisters, but was aware that a family member, Rhonda struggled with addiction issues.

[69] He testified that the distance between his home in Perth and the Mother’s home in Prescott was an hour and 19 minutes.

[70] The Father indicated that his biggest fear was having a child and not being in that child’s life every day. He did not want to have a child from a “broken” family he said. He indicated he wanted children some day in his dating profile. The Father testified the Mother indicated that she would love to have another child. He did not recall the Mother saying that she did not want to have children. The Father spent New Years with the Mother at her friend’s house. He believed it was the home of Ms. Bigras. Ms. Bigras denied ever meeting the Father.

[71] The Mother had indicated that she was pregnant and then later indicated that her period had arrived. On February 4, 2018, he discovered that the Mother was pregnant.

[72] The morning after learning that the Mother was pregnant, the Father woke up to find a few messages from the Mother on his phone. She indicated she had been up all night and she sounded very emotional to the Father. The Mother took Noah to school and then drove up to Perth to meet the Father. They went to Lanark Landing restaurant for breakfast. The Mother told the Father that she was not going to move in with him and uproot her son’s life. The Father testified that the Mother told him that he would have to quit his job and move in with her and start supporting the family. The Father indicated that the Mother said if he did not support her she would be taking him to court. The Father indicated that the Mother said, “as soon as this child is born, my bills are paid.”

[73] They finished their meal and talked for a couple of hours. She drove off erratically, he said. He told her to drive carefully.

[74] The Father said he felt the Mother was grasping for control and trying to maintain power over the situation.

[75] The Father indicated that he helped the Mother with groceries a few times and paid her rent one month. He indicated that he purchased tires for her car and shoes for her and Noah. He attended the ultrasound appointment with the Mother and Noah.

[76] The Father testified that the Mother told him he lacked empathy. He did not know what the word meant at the time but understands now. He indicated he is a caring and compassionate person, but he was not willing to quit his job and move to the Mother’s home.

[77] He testified that when he was in Grade 8, he won the Bill McLenahan award for being the most caring person in his class. In this case, he testified that he sought advice from family friend, OPP Cst. Derek McLenahan, the son of Bill McLenahan. The officer reportedly told him he should stay away from the Mother. This evidence is hearsay and not admissible for the truth of its contents, or its hearsay purpose. However, whether the statement is true or not, it is relevant and admissible to explain the Father’s state of mind. It is a matter of credibility as to whether the statement was actually made. I find that the statement was made by Officer McLenahan to the Father.

[78] The Father testified that the Mother told him he would have to get a paternity test. After she indicated he needed a paternity test, he said it brought everything into question. The Father also was cross-examined about his relationship with a younger woman named Brontë. This young woman apparently called 9-1-1 when she was drinking. Police investigated and no charges were laid. I did not find this area of cross-examination to be particularly helpful to the court in resolving the issues before me.

[79] The Father indicated that he wished to be present for the birth of the child. He was not advised when the Mother went into labour. He received a phone call on October 6 at 3:51 a.m. from the Mother. He missed the call and called the Mother back. She then told him the child had been born. The Father was upset that he had not been notified. The Mother hung up the phone. He called her a few more times, but she did not answer. The Father wanted the child to be born in a hospital. The Mother had the child at home.

[80] On October 11th he sent the Mother a text asking when it would be convenient for him to come and meet his daughter. He reached out twice on different days. The Mother did not respond.

[81] His relationship with the Mother ended after the birth of the child, he said. He wanted the relationship to work out because he was having a daughter.

[82] The Father maintained that the Mother told him that she had narcissistic personality disorder (NPD) as a result of her childhood. He said he felt sorry for her due to her childhood experiences. The Mother told him her father was an alcoholic and she had a difficult upbringing. The Mother denied having NPD, or ever telling the Father that she had NPD. The Mother also disclosed that she had attention deficit hyperactivity disorder (ADHD) he said.

[83] He recalled that on the morning that River was born he had been watching a television program called Dangerous Women. There was a segment with a murderer who killed her child. The Father claims that this is when he realized that this is the same condition the Mother said she had.

[84] The Father produced counselling notes which provided a record of his conversations with his therapist discussing his allegation that the Mother had sexual intercourse with him without a condom. He did not consent to having sexual intercourse without a condom.

[85] The Father testified that the Mother removed the condom on one occasion and he got up and put another one back on. On the second occasion, he woke up in the morning to the Mother performing oral sex on him. She slid up on him and he told her she needed to get a condom. She proceeded anyway. The Mother told him to be quiet as her son was on the other side of the wall. She continued. He never said anything. She pushed him down with both hands on his shoulder and then it was too late. He said, “what are you doing; why did you do that?” She said, “it was good, wasn’t it?” The Father said it was good, but she had done this on purpose.

[86] The counselling records confirm that the Father attended for counselling as a result of his relationship with the Mother. He attended counselling, he said, due to the trauma of what he said he experienced by the Mother. His first counselling session began when the court proceedings began. The Father filed the notes of his therapist at trial.

[87] The use of a prior consistent statement may be admissible as narrative to show the facts or timing of a complaint. In those circumstances the statement may assist the court in determining the truthfulness of the statement, or to resolve credibility issues related to the statement. R. v. Dinardo, 2008 SCC 24, at para 37. The statement may also be made to rebut an allegation of recent fabrication. A prior consistent statement can be admissible, for the declaratory value, as circumstantial evidence showing the state of mind of a witness, as long as it relates to a trial issue. R. v. Edgar, 2010 ONCA 529. I found that the notes were sufficiently probative to be admissible to assist the court in understanding the unfolding of the narrative in this case. Given that this is a judge alone trial, the prejudice of admitting the records was also minimized. The records assisted the court in understanding the context in which the initial complaint arose.

[88] In this case, the statements made by the Father to his therapist occurred at the time litigation began, and not at the time of the initial alleged incident. In determining admissibility, I also considered that these counselling notes arise in a context where the court is required to assess what is in the best interest of the child. The Father made serious allegations of violence against the Mother. Violence is relevant to the determination which the court must make regarding parenting time. Therefore, I admitted the counselling records. Further, I considered this evidence, as part of the whole of the evidence, including the text messages in this case.

[89] The issue of whether the Mother sexually assaulted the Father is not relevant to many of the issues which this Court has to decide. However, family violence must be considered when determining what is in the best interest of the child. Sexual assault is a form of violence. Part III of the CLRA section 24, sets out the criteria which the court must consider in determining what is in the best interest of the child. Section 24 of the CLRA mandates that the Court must consider the impact of violence on the issues of what is in the best interests of the child.

[90] I also accepted as a fact that the Father felt traumatized by his interactions with the Mother so that he sought professional psychological assistance for the first time in his life. I also found as a fact that he sought legal advice from a friend who was an OPP officer after his experiences with the Mother. I also found as a fact that the Father acted on the advice of that officer to avoid contact with the Mother

[91] The Father alleges that the first time he and the Mother had sexual intercourse they used protection. The second time they had sex he claimed the Mother removed the condom. The third time no condom was used which he claims was not with his consent.

[92] He attended the Canadian Centre for Men and Families. He testified he chose not to press charges against the Mother, as he felt this was not in his child’s interests and he did not want to pursue a criminal charge. At that time, he hoped he and the Mother could resolve things in accordance with the child’s best interests. The Father advised the Court that he has been made to feel like a criminal since he made these allegations against the Mother. He feels he has been robbed of fatherhood. However, he expressed gratitude for the fact that he has a beautiful little girl.

[93] He met his daughter for the first time in November of 2018. The Mother was asking for financial support for the child. The Father said she called him a dead-beat dad. He purchased diapers and some clothing and asked his mother to accompany him for the visit. The visit was 45 minutes in length. The Mother indicated that she would not pursue him in court if he would help out with the child. Two days later he said she was asking for money and how much he was planning on giving her for River.

[94] At an earlier time in the summer when the Mother was about eight months pregnant, he attended with his mother. The Father’s mother advised the Mother that her son had rights to the child. The Mother advised him if he did not attend for the birth, he had no rights to the child. The Mother also threatened to call the police on the Father if he attended a visit uninvited. The Mother confirmed that this incident occurred.

[95] He did not attend again without having a witness present with him. He indicated that on that visit where the Mother advised him he would have no rights to the child if he did not attend the birth, he accused her of forcing herself on him. The Mother did not deny that she initiated sex without a condom at the time he said. In her evidence, the Mother denied that she ever forced herself on to the Father, or that this alleged conversation took place.

[96] In the summer of 2021 and 2022, there were visits at the Rose Garden Family Support Centre in Brockville. In the summer of 2020, there were no visits.

[97] The Father testified that River was upset when she first met him. She cried. He held her in his arms and walked her around the building. The first visit was 20 minutes.

[98] The second visit was a half hour. Visits were increased to one hour for several months. Due to the pandemic both the child and father had to be masked. The visits eventually were unsupervised. It took some time for the child to become receptive to him, but she now calls him daddy. He was determined to build a relationship with her.

[99] The visits are going well. The Father takes the child to the beach. They go for bike rides and go for dinner. The visits are about two hours and forty minutes in length once a week.

[100] Beginning in June of 2022 the visits have been unsupervised for three hours. There are no restrictions on where he can take the child but due to the time restrictions, he has been unable to take the child to his home, or to her grandparents’ home to visit. He and his lawyer requested that the Mother consent to increasing the visiting time by one hour, but this request was not responded to by the Mother.

[101] The Father and his partner have met with River and she has met Aubrey. The Father keeps toys in his truck for when he visits River. They interact well together.

[102] The Father does not write messages in the communication log from the Rose Garden Family Support Centre. His mother fills the log out as she has better handwriting, he said. The records from the Rose Garden Family Support Centre reveal that the visits have gone extremely well. The Father interacts well with the child. He reads to her and plays age-appropriate games with her. Sometimes the log is not returned. He prefers to communicate through the co-parenting tool, the Our Family Wizard app.

[103] The Father has concerns regarding the Mother’s parenting. The Mother did not advise him that River had broken her leg. The child was in a cast at her visit, which is how the Father learned that she had been injured. The Father has concerns that the Mother may alienate the child against him. He claimed that he overheard the Mother telling her son that it was okay that his father did not love him as she loved him so much. The Mother denied ever making this comment to her son. The Father also said the Mother approached him in a store when he was out visiting with the child.

[104] The Father used to attend church regularly. He now goes once in awhile. He would like to take River to church sometimes, and it is important to him that she has knowledge of the Catholic faith. He does smoke once in awhile but has been working on quitting. He does not smoke in his vehicle. He does not consume alcohol in excess. He will not drink alcohol while the child is in his care.

[105] He was upset that he was not consulted about what school River would attend. He found out she was attending school when the child told him that her mommy and daddy had taken her to school and that she would be taking the bus.

[106] Staff from the Rose Garden Family Support Centre and not the Mother, confirmed River was going to school. He bought her a backpack for school. The Mother later confirmed with the paternal grandmother, Laurie Widenmaier that the child was enrolled in school.

[107] The Father claimed the Mother told him that she had been expelled from school for trafficking in drugs. The Mother also claimed that the Father was a drug trafficker.

[108] The Father has not blocked the Mother’s phone number and does not speak negatively about the Mother in the child’s presence. The Mother has not initiated telephone contact with the Father after he stopped texting her.

[109] The Father also indicated that the Mother accused him of emotional abuse and bullying. In a text she wrote that she was an educated and trained social worker. The Mother texted that she had worked in social services and was still employed by the Rose Garden Family Support Centre as a contract worker.

[110] The Mother denied working at the Rose Garden Family Support Centre. As a result of the Father’s belief that the Mother had employment history with the Rose Garden Family Support Centre in Brockville, he suggested that they meet in Smiths Falls. The Mother, through counsel, refused to travel to the Smiths Falls location.

[111] During the pandemic he proposed meeting outside in a park to be supervised by staff from The Office of the Children’s Lawyer, or anyone else who was qualified. However, visits did not start until May of 2021. While he did not feel comfortable going to the Rose Garden Family Support Centre in Brockville, given his belief that the Mother had worked there, he did attend all his visits there.

[112] The Father indicated that he wished to limit contact with the Mother, but would communicate with her through the Our Family Wizard app. He would like one exchange to take place at Smiths Falls and one at her school on Monday morning.

[113] He was never consulted regarding choosing River’s last name. He would like to have overnight visits with the child on a graduated basis. He proposed eight-hour visits so that he could bring her home and introduce her to her grandfather and his family.

[114] The Father also expressed concern that the Mother is involved in Reiki and uses crystals. At one point he said he woke up from a dead sleep to find her standing over top of him holding a crystal over him.

[115] The Father would like to have decision making regarding the child and parallel parenting time. He would like to have the freedom to be an equal parent.

[116] The Father maintains that the Mother was manipulative and threatening. There are many, many texts where the Father accuses the mother of being manipulative and threatening. These texts are relevant as they demonstrate the inability of the parties in the past to communicate in a civil manner with one another. This is relevant to any future parenting plan particularly in terms of joint decision making. While the court is cautiously optimistic that the parties will be able to resolve their history and the acrimony which has clouded their communications, the evidence before the court is that the Father has a history of vehement mistrust of the Mother. This history, while I have not accorded it undue weight, given that time has elapsed, and given the Father’s assertion that he will work with the Mother through the Our Family Wizard app, bears some consideration regarding how major decisions should be made.

• On August 10, 2018, the Mother had written to the Father that she knew he would never change and that he had shown no effort to get along. “I see anger management in your future. That type of dynamic and environment and abusive behaviour is no place for a baby.” The Father responded: “No, I jus do not plan on living my life being blackmailed threatened manipulated and abused by you either I’d rather die.”

• On January 1, 2021, at 1:51:58 p.m. he texted “You’ve not once tried to resolve this without blackmailing threatening or trying to manipulate. That alone speaks for itself.

• On January 1, 2019 at 5:47:43 p.m. the Father texted, “I’ve not ever said one lie Kelly, that’s the thing, that’s gunna help stand in court. As the many many lies in which you’ve already told, plus how you elaborated on being able to manipulate your own family. Forcing your mother to leave Jack, and also how you feel that doing things the way you have in which you have chosen to do things, is in your own terms called “beating the system” you are quite a unique card that is for sure lmfao.

Evidence of Laurie Jane Widenmaier:

[117] The child’s paternal grandmother Laurie Jane Widenmaier has attended the visits between River and her son. She testified that she raised her four sons in the mobile home where the Father lives. She helped set up the child’s room.

[118] Photos of the trailer which were made exhibits in this trial depicted a tidy and functional mobile home. The child’s room is appropriately arranged. The child’s bed is the appropriate size and there are toys in the child’s room.

[119] Ms. Widenmaier lives in a farmhouse adjacent to the house trailer.

[120] Ms. Widenmaier indicated that the Mother at one time said that she would move into the house trailer. She also testified that the Mother did not deny the incident the Father described, wherein he accused her of having sex with him without a condom. However, despite this corroboration of her son’s evidence, having considered the evidence as a whole, I was not satisfied on a balance of probabilities that a sexual assault occurred for reasons already explained.

[121] Ms. Widenmaier also indicated that her son told her that he did not consent to having sex without a condom, but that he did not wish to throw the Mother on the floor with her son sleeping next door.

[122] Ms. Widenmaier described meeting her granddaughter in December. She and the Father delivered diapers and sleepers to the Mother. The Mother seemed happy to see the Father, she said. Ms. Widenmaier said the family also offered the Mother a four bedroom log home which they owned. This offer was made as the family sensed the Mother felt the trailer was unsuitable. Ms. Widenmaier provided her email address in order to stay in touch with the Mother in order that she could receive information about the child.

[123] Ms. Widenmaier was granted leave to attend visits at the Rose Garden in Brockville. Since that time, she has attended all of the weekly visits. She observed the child appeared happy to see the Father. They seemed to enjoy interacting with each other. When extended visits were granted in the summer of 2022, Ms. Widenmaier and the Father took the child out to shop in local stores. The three hour window provided insufficient time to take the child back to their home in Perth.

[124] Ms. Widenmaier indicated the Father bought the child a bicycle and a bicycle helmet for her birthday. They had birthday cake at the Rose Garden in Brockville.

[125] They took the child to Aquatorium. Ms. Widenmaier described her granddaughter as blonde, blue-eyed perfection who is smart as a whip.

[126] Ms. Widenmaier wrote notes regarding the visits with River in the Rose Garden communication journal. The notes reveal a cordial and co-operative relationship between the Mother and the paternal grandmother.

[127] She indicated that at one of the visits the Mother approached the child while she was visiting with the Father in the Dollar store.

[128] Ms. Widenmaier confirmed that the Father was experiencing high levels of stress due to the relationship with the child’s Mother when the relationship was ending. She observed her son crying, he attended for counselling and was advised to document what he was experiencing.

[129] Ms. Widenmaier regards the Mother as controlling. She denied the child ever wet her pants while in her company.

[130] In cross-examination, Ms. Widenmaier expressed surprise to learn that the Father did not have to wait three days to learn that his child was born. In fact, the Father testified, and the phone records confirmed, he knew the child was born within hours of the child’s birth.

[131] She was unaware of the date the Father met with the OPP officer for legal advice regarding his allegations against the Mother.

[132] She attended a meeting with her husband, Edward Widenmaier, the Mother and the Mother’s sister at a restaurant. The Father did not attend.

[133] The Mother permitted additional time for the Christmas visit but would not permit the child to leave the Brockville area, so they could not take the child home for Christmas.

[134] Ms. Widenmaier denied that anyone told the child she should not call her stepfather, Daddy Daryl.

[135] Ms. Widenmaier believes the Mother is manipulative and that she has deceived people, including persons at the school regarding her personality. Ms. Widenmaier advised that the Father was not advised when the child had started school, or when the child’s doctor was changed, or initially regarding her dentist.

[136] Ms. Widenmaier echoed the theory of her son that the Mother is a narcissist. It appears that the basis for this belief is that Ms. Widenmaier accepts her son’s characterization of the Mother.

Evidence of David Beggs:

[137] Mr. Beggs is the Father’s supervisor at Ottawa Valley Milk Transport. He has known the Father for nine years and described him as reliable and hardworking.

[138] The Father’s schedule at work involves working for 7 days of each two-week period. There are 16 drivers and schedules are flexible to accommodate the personal requirements of the drivers.

[139] The Father currently has every second Friday off of work. Drivers share weekend work. The Father works every second Saturday and Sunday. Shifts are generally 10 to 10.5 hours. Mr. Beggs testified that other drivers could take over in case of emergency.

Evidence of Gail McAdam:

[140] Ms. McAdam is the Father’s aunt. She worked as a teacher, vice principal and principal in the Catholic district high school for 37 years prior to retirement.

[141] Ms. McAdam described the Father as reliable and thoughtful. She brought a trophy he was awarded in Grade 8 for being the most kind and thoughtful student. She described the Father as a child, demonstrating compassion and care for his ailing grandfather.

[142] She described the Father as having a good relationship with his current girlfriend, who he has dated for four years. Ms. McAdam had positive evidence to give regarding the school proposed by the Father as part of the parallel parenting plan in Toledo.

[143] She has never heard the Father swear or use demeaning language.

[144] She did not know about the Father’s relationship with his former girlfriend Brontë. There was evidence in this trial that police were called as a result of Brontë’s actions. No charges were laid against the Father after police investigated. In fact, Brontë was being driven back to her home in Ottawa at the time police arrived at the Widenmaier farm. I found that this evidence was of little relevance to the issues which the court had to decide and had no relevance to the Father’s ability to parent the child.

[145] Ms. McAdam used notes to testify. She used the notes to help her remember the points she wished to make in giving her testimony. The witness was asked by counsel for the Mother, Mr. Lee whether she was looking down at something earlier and she denied that she was. Later, it became apparent that the witness had notes she was using to assist in her giving her evidence. The notes were examined by counsel. The fact that the witness had notes which she initially denied referring to could potentially impact the weight of her evidence. However, I found the notes to be generally of little impact. The relevance of Ms. McAdam’s evidence related to her nephew’s character. She did not need the notes for that purpose. I found her to be a credible witness, who was clearly very fond of her nephew. She had suffered a severe concussion prior to testifying and to some degree required the notes for that purpose. She also wore sunglasses when she testified to shield her eyes from the light due to the impact of the concussion.

Evidence of Edward Widenmaier:

[146] Mr. Widenmaier is the child’s grandfather. He is a dairy farmer who works long hours on the family farm. Mr. Widenmaier milks cows two times a day. It is difficult for him to take time off work as he does not have relief.

[147] As a result of his workload, he has only met his granddaughter once at a meeting at the restaurant. He indicated he told the Mother at that meeting that the Father would probably be more interested in the child when the child was older.

[148] He expressed disappointment that he was not permitted to see the child over Christmas as the Mother prohibited it.

[149] He indicated that after the Mother threatened to call police on the Father, and that the family feared that having contact with the Mother could put the Father in jeopardy. Mr. Widenmaier had a negative impression of the Mother.

[150] He denied that his son’s relationship with former girlfriend Bronte was an issue. He pointed out the relationship was short lived and that police did not charge the Father with any criminal offence. Mr. Widenmaier said that both his son and the Mother belittled each other

[151] The issues which must be decided include who will be the primary parent, how decision-making will be structured, allotment of parenting time, child support, and the calculation of special expenses. The Father also requested that the Mother have a psychiatric assessment. I found no evidentiary basis to make that order. The parties agreed to the change of the child’s name and to the appointment of the Office of the Children’s Lawyer. There is no basis to have the OCL appointed as this is a final order.

[152] Both parties agreed in their pleadings that, in the event of uncertainty of outcome regarding parenting time and decision making, that the Office of the Children’s Lawyer shall be appointed, pursuant to s. 30 of the CLRA. The court found that the evidence before the court was sufficient to determine the issue of parenting time and decision making without the assistance of the OCL. Further, given that the order by the court is a final order, in my view, it is not appropriate to request the intervention of the OCL.

Analysis:

Who should make decisions for River and is a parallel parenting plan in her best interests?

[153] This was the most difficult question the court had to address. The parties have historically had a scorched earth policy of communicating with one another. This hostility generally militates against shared decision-making. The Mother has been the primary decision-maker for the child’s entire life. However, the Mother does not always consult, or even inform, the Father regarding River’s major life events. For example, the Mother did not advise the Father that River was registered in the Wellington Elementary school. The Mother failed to advise the Father when she began living with Mr. De Jong. She also did not advise the Father when River fractured her leg. She did not advise the Father when she went into labour. Given this tendency of non-consultation of the Father by the Mother, the court has a concern that the Father’s ability to parent the child by meaningfully participating in decision-making will be undermined.

[154] However, the Father uses his extreme resentment of the Mother as a rationalization for failing to communicate with the Mother regarding the child. This behaviour by both parents is not in River’s best interests. Decision making is an integral element of parenting. The Court notes that a primary decision-making order can empower one parent over another. However, an award of joint decision-making requires a degree of co-operation between the parties, which is not present in this case.

[155] It is in River’s best interests that both parents play a significant role in her life. A parenting regime whereby each parent has authority in determining major issues will prevent the marginalization of the other parent and their values. However, the hostility between the parties must not be permitted to override the ability to make decisions in the child’s best interests.

[156] The court finds the words of Justice Benotto in the case of M. v. F., 2015 ONCA 277 at para 39-40, particularly apposite in this case. Speaking for the court she opined that the court can impose a parenting plan without making an order for decision-making:

For many years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access”. These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.

It was therefore open to the trial judge to adopt the “parenting plan” proposed by the assessor without awarding “custody”. It was also in keeping with the well-recognized view that the word “custody” denotes “winner” so consequently the other parent is the “loser and this syndrome is not in the best interests of the child.

[157] This Court is not inclined to declare a “winner” in the saga of bitterness between the Father and the Mother. Rather, it is hoped that the parenting plan fashioned by the court will ensure that River has the best chance of enjoying the full benefit of both parents, who both love her.

Parenting Time:

[158] The parties were not married; therefore, the application was made under the Children’s Law Reform Act, R.S.O. 1990, c.C12 (“CLRA”). The sole criteria for the court to consider in determining parenting time is the best interests of the child by relying on the criteria set out in s. 24(2) of the CLRA in determining the child’s best interests, the court is required to consider all circumstances of the child and in doing so, give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. The factors related to the circumstances of the child include those set out under s. 24(3).

[159] Section 24 (2) reads:

BEST INTERESTS OF THE CHILD—The Court shall consider all the child’s needs and circumstances, including,

(a) The love, affection and emotional ties between the child and,

(i) Each person including a parent or grandparent entitled to or claiming custody of or access to the child,

(ii) Other members of the child’s family who reside with the child, and

(iii) Persons involved in the child’s care and upbringing.

(b) The child’s views and preferences, if they can reasonably be ascertained.

(c) The length of time the child has lived in a stable home environment.

(d) The ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child.

(e) The plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing.

(f) The permanence and stability of the family unit with which it is proposed that the child will live.

(g) The ability of each person applying for custody of or access to the child to act as a parent; and

(h) Any familial relationship between the child and each person who is a party to the application.

(3) PAST CONDUCT—A person’s past conduct shall be considered only in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

(4) VIOLENCE AND ABUSE—In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse’

(b) a parent of the child to whom the application relates.

(c) a member of the person’s household; or

(d) any child.

Past conduct of a person seeking custody or access is not relevant except to the extent it relates to that person’s ability to act as a parent.

[160] Both parents love this child. The child also has a loving relationship with her paternal grandmother, her half-brother Noah and her stepfather. The child’s views and preferences were not in direct evidence before me. However, there was evidence from Danielle Bigras, a friend of the Mother’s, and the mother of River’s classmate, that the child is very happy with her current care and upbringing. The child is happy in her school where she attends French Immersion. She has friends and the school is a short distance from her home. Her home life involves helping her mom on the farm, including by feeding the chickens and caring for the goats. She has her dog, Charlie. Her mom has been her primary caregiver for her entire life. Both parents are able and willing to provide the child with guidance and education, the necessaries of life and any special needs she may have. Both parents are offering permanence and stability of the family unit where it is proposed that the child shall live. Both parents have the ability to act as a parent.

Proposed Plans:

[161] The Mother proposes that the child continue to reside with her and that she continues to make all major decisions in relation to the child. The child has flourished in this stable home with the Mother as her primary care giver for four years. The school is nearby. The Mother’s business is largely run from home, which gives her flexibility to care for River.

[162] The plan proposed by the Father is that the child will live 50 percent of the time with him. He proposes that the child either attend school in Perth, where he resides, or a school in Toledo, which is midway between Perth and Prescott. The Father has a tidy and well-appointed mobile home which is well suited for the child. The room he decorated and furnished for her is age-appropriate, as are the toys he has purchased for her, including the bicycle. He too lives on a farm. The Father has a flexible work schedule. The Father is also willing to also offer a stable home. I found him to be a hardworking and dependable individual who is well respected by his employer and by his family and friends.

[163] However, the Father’s plan would involve having the child attend school in Perth, which would involve a long commute for her on the days she is with her Mother. The Father’s alternate proposal was that the child would attend school at a midway point between Perth and Prescott. If the child attended this school in Toledo, she would be attending a school where she has no roots in the community. She would still have a commute back and forth to school.

[164] Considering all the child’s needs and circumstances, including the enumerated factors in s. 24(2), I find that the Mother’s plan of residence is in River’s best interests and best suits the needs and circumstances of the child. Her young age makes travelling back and forth from Perth to Prescott for school in the manner proposed by the Father to be impractical. The distance between the homes is an hour and 20 minutes in length one way. The alternate plan of having the child attend school in Toledo would leave the child attending a school where she has no roots in the community. Neither parent has any roots in Toledo either. The child would still have to commute to school. The Mother’s plan involves a school where the child is already flourishing. The school is very close to her home and the Mother can drop her off and pick her up.

[165] The Father has had unsupervised access for three hours a week since the motion for expanded parenting time before Justice MacEachern in May of 2022. Counsel for the Father submits that the Mother has unduly limited the ability of the Father to have contact with the child, which has given her a tactical advantage vis-à-vis the status quo. It is true that the Mother refused to permit the Father to see the child when the Rose Garden Family Supervision Centre was shut down due to the pandemic. She indicated that she feared “further allegations.” However, the Father also, as he concedes, bears responsibility for the fact that he did not have meaningful ongoing contact with the child initially. At the end of the day, the issue for the court is to ensure that the order I make is in the child’s best interests. This may or may not align with the parents’ view of what appears fair from a parental perspective. The child’s primary residence is to remain with her Mother and she is to continue to attend Wellington Elementary School in Prescott.

Family Violence:

[166] I am required to consider past conduct and any abuse committed by either parent to determine whether family violence and abuse is relevant to a person’s ability to act as a parent pursuant to s. 24(3) (4) of the CLRA. The Father alleged that the Mother committed a serious act of violence against him. I am not satisfied on a balance of probabilities that this act of violence occurred. I therefore did not consider this factor in reaching my conclusion as to where the child should primarily reside. My reasons for reaching this conclusion are as follows:

Evidence of Text Messages:

[167] I wish to make a brief comment regarding the text messaging evidence submitted by the Father in this case. The Father did a data dump of all of his communications with the Mother over the relevant time period. The court was presented with 868 pages of text messages submitted in this trial. Each page contained long threads of exchanged text messages. The material was filed in two thick binders: Exhibit Book 1 and Exhibit Book 2.

[168] Counsel only referred to a selection of texts during this trial. Upon review, there were many relevant texts which were not referred to by counsel, but which were germane to the issues. In addition, the texts referred to by counsel often lacked surrounding context, which required the court to review the texts in their entirety. It would have been preferable if counsel had streamlined the texts submitted. The court had to review a large volume of raw material. This level of review was necessary as some of the texts supported the Mother’s evidence regarding the alleged sexual assault. However, the sheer volume of material presented delayed the release of this decision, which given that parenting time is at issue, was not ideal. Regardless, they were all considered, with a focus on those referred to by counsel.

Sexual assault

[169] The Father alleges the Mother sexually assaulted him by having sexual intercourse with him without a condom and without his consent.

[170] In R. v. Kirkpatrick, 2022 SCC 33, 471 D.L.R. (4th) 440 the court held that condom use, when it is a condition of the complainant’s consent, forms part of the “sexual activity in question” under s. 273.1 of the Criminal Code. The person initiating sexual intercourse without a condom must ensure that the other party consents to having sexual intercourse without a condom. Consent cannot be assumed.

[171] In R. v. Rivera, 2019 ONSC 3918, aff’d 2022 ONCA 495 the accused was found guilty of sex assault when he had sexual intercourse with the complainant without wearing a condom. The complainant communicated that she had two rules: (1) wear a condom because condoms were the complainant’s form of birth control and (2) no means no.

[172] The texts contradicted the Father’s assertion that he was sexually assaulted by the Mother. The Mother accused the Father of not being careful when having sex in a text she sent on July 31, 2019. The Father did not respond to this accusation, which contradicted his evidence that the Mother had sex with him without a condom without his consent. The Mother also repeatedly accused the Father of advising her that he could not conceive children. The Father never refuted this assertion. He did assert that the Mother wished to become pregnant, and he did not want to have a child with her, but he never refuted the assertion that he told the Mother he could not conceive children. The Father also, contrary to his evidence in this trial, indicated that both were responsible for the pregnancy.

[173] On December 10, 2018, at 7:09:57 p.m. the Father texted: “We couldn’t’ find a way to communicate and figure things out. We are both to blame for that yes. We are both to blame for you getting pregnant I admit that, and I did everything to work with you. Told you I didn’t think it was best for us but support your decision to keep it thinking you’d do your part to bring us together as a family and you flat out told me you never would that you wouldn’t EVER WANT to be with me.

[174] The Father claimed that he discussed the sexual assault in the presence of his mother and the Mother and she did not deny it. His mother confirms his evidence on this issue. He points to a text from the Mother dated August 17, 2018, at 10:06:36 as confirmation of the alleged sexual assault. The Mother wrote: “If I knew you would stop talking to me like shit and respect me as a woman and mother. We would get somewhere. But you even did it here in front of your mother. Telling her I was riding you upstairs. Who the fu k does that. Sharing our sexual private life, I was riding you cause I was in love with you and wanted to be close with you. Just sickening the shit you have said. It’s too late.”

[175] In my view, this text from the Mother did not confirm that a sexual assault took place. The Mother was criticizing the Father for discussing their sex life in the presence of his mother. She does not agree that she had sex with the Father without a condom and without his consent. In evidence, she expressly denied that she ever had sexual intercourse with the Father without a condom without him consenting to a condom not being used. I accepted her evidence on this issue.

[176] Admissions may be implied by a party’s silence. Certain preconditions must exist: (1) A statement, usually an accusation, is made in the presence of a party; (2) the statement is made in circumstances such that the party would be expected to respond; (3) the party’s failure to respond could reasonably lead to the inference that, by their silence, the party adopted the statement; and (4) the probative value of the evidence outweighs its prejudicial effect. R v. Tanasichuk, NBCQ 76 at para 110, leave to appeal to SCC refused, see also R v Mariana, 2007 ONCA 329 at para 76.

[177] In failing to refute the repeated assertions by the Mother as to how the unprotected sex took place, and whether the Father told the Mother that he could not have children, I found that the Father was making an admission by his silence, that he accepted the truth of the Mother’s assertion. Silence in the face of statements made by others, or an equivocal or evasive denial, may also constitute an adoptive admission where the circumstances give rise to a reasonable expectation of reply. R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280 at para 247.

[178] I have considered whether there may be another reason, other than agreement, for the Father’s failure to deny the Mother’s assertion that he advised her he could not conceive a child. In this case, the Father often angrily refuted many of the Mother’s other assertions. I found the Father did tell the Mother that he did not think he could conceive a child. I find that this evidence corroborated the Mother’s evidence that they had consensual, unprotected sex. It makes sense contextually, that if the parents were having unprotected sex, that the Father would tell the Mother that he did not believe he could conceive a child. I also find that the Father’s text message to the Mother indicating that they were both responsible for the pregnancy, is inconsistent with his evidence at trial, where he blamed the Mother for initiating the pregnancy by having unprotected sex with him without his consent.

[179] I have also considered the Father’s counselling records. It was arguable that the records constitute an inadmissible prior consistent statement. The Father sought counselling not at the time of the alleged incident, but at the onset of litigation. Therefore, the records are of limited utility in terms of rebutting an allegation of recent fabrication. However, given that the allegations involved family violence, and given the importance of determining what is in the best interests of the child, I admitted and reviewed the records. However, when I considered the evidence as a whole, I am not satisfied on a balance of probabilities that the Mother sexually assaulted the Father.

[180] Therefore, I do not consider family violence as part of the best interests of the child analysis.

Parallel Parenting Plan:

[181] The Father has proposed a parallel parenting plan.

[182] Parallel parenting envisages that the parents have equal status and exercise the rights and responsibilities associated with custody independently of each other: see Kaplanis v. Kaplanis, [2005] O.J. No. 275 (Ont. C.A.) A parallel parenting plan gives expression to the notion of parental equality in CLRA s. 20, but would also reflect s. 24(2) (a)—the love, affection and emotional ties between the child and each person claiming custody and parallel parenting: see Powers v. Powers [2004] O.J. No. 4696, 2004 ONCJ 281 (Ont. SCJ), varied [2006] O.J. No. 5605 (Ont. C.J.), in obiter.

[183] In V.K. v. T.S. 2011 ONSC 4305, [2011] O.J. No. 4046 (S.C.J.) Justice D. Chappel thoroughly reviewed the case law and set out in paragraph 96 of her judgment, factors the court should consider in assessing whether a parallel parenting regime, rather than sole custody is appropriate. Those factors include:

• The strength of the parties’ ties to the child, and the general level of involvement of each parent in the child’s parenting and life. In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child’s life on all levels. In this case I found that both parties have a strong tie to the child, but the Mother has a far greater level of consistent involvement in the child’s life. The Mother has played the more significant role.

• The relative parenting abilities of each parent, and their capacity to make decisions that are in the child’s best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus on the best interests of the child, a parallel parenting regime may be ordered. In this case, I found that both parties are equally competent. There has been a history of conflict between the parents.

• Evidence of alienation by one parent. If the alienating parent is an otherwise loving, attentive, involved, competent and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party’s role in the child’s life. On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child’s best interests, a sole custody order may be more appropriate. I found that in this case that the parents have been rude and verbally abusive with one another. However, I found that the evidence fell short of establishing parental alienation by either parent. See: L. (A.G.) v. D.(K.B.) (2009) 932 O.R. 409 (Sup.Ct.J.) and Malhotra v. Henhoeffer, 2018 ONSC 6472

• I find that despite the history between the parents that the evidence supported the inference that they both are willing to support the parent’s relationship with the other parent.

• Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order.

• The extent to which each parent is able to place the needs of the child above their own needs and interests. If one of the parties is unable to focus on the child’s need above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child’s day to day needs. In the case before me, the Father and the Mother are both able to place the needs of the child ahead of their own in my view. The Father has attended all of his parenting time sessions with River, although they are in Brockville and he lives in Perth. The Mother, in her evidence, demonstrated that she understood the importance of placing the child’s needs ahead of her own.

• The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting. I found there was no form of abuse or undermining behaviour which was relevant to the analysis.

[184] In K.H.v. TKR, [2013] O.J. 3463 (C.J.) at paras 51-57 (paraphrased), Justice Sherr adopted the above-noted factors and added the following considerations:

• The likelihood of one category of decision-making conflicting with another (the spillover effect) and the ability of the parents to navigate those conflicts. For instance, it might appear on the surface that there is a clear delineation between medical and educational decisions. However, that might not be the case with two parents determined to fight and perpetuate conflict. If a school recommends speech-language therapy or therapeutic counselling to take place at school, high-conflict parents will likely fight over whether these are medical or educational decisions.

• Whether the parents have the ability to navigate scheduling conflicts between activities and appointments. Since they are each acting independently in their own sphere of decision making, what happens when both soccer practice and math tutoring are scheduled at the same time?

• The geographical distance between the parties. Decisions by the non-residential parent are easier to implement if the parties reside close to note another. If the parties live far apart, the residential parent may not be able to take the children to a doctor, tutor, counsel or, school or activity (depending on the area of decision making) chosen by the non-residential parent. If the parents cannot communicate well, the geographic distance between them can create significant conflict and adversely affect the children. In the case before me, I find that the geographic distance between the parties would negative impact the efficacy of a parallel parenting plan. However, in my view, there is a sphere of decision making where the Father can make some decisions for the child, and that is in terms of extracurricular activities.

• The family dynamics. The court must evaluate if a parallel parenting order is more likely to de-escalate or escalate the parents’ conflict.

[185] In the case before me, the Mother has the stronger relationship with the child and has had more significant involvement with the child for the past four years. The geographic distance between the parties is also a significant impediment to a parallel parenting plan. I find that a parallel parenting plan was not in River’s best interests as it would destabilize the child’s current relationships which I find she needs to maintain.

[186] The Parenting Plan Guide prepared by the Ontario Chapter of the Association of Family and Conciliation Courts (AFCC-Ontario) provides guidelines for parenting plans for children based on age.

[187] The guidelines indicate that where one parent was primarily responsible for the child and the other parent had limited involvement with the child’s daily routine, as in this case, the child should continue to reside with that parent, with a possible plan of step-up care to increase the involvement and skills of the other parent. This might start with two or three 4-hour blocks of parenting time per week, building up to one longer block (likely on a weekend) that may include an overnight.

[188] As a child becomes more comfortable moving between the two homes, one or two overnights may be added. The AFCC parenting plan recommends that in cases such as this one where one parent has been primarily responsible for caring for the child, that for a child of this age, two shorter blocks of time are warranted. However, I have also considered that the Father lives in Perth and the child also has a bond with the paternal grandmother who also lives in Perth. I have attempted to fashion a plan which will reduce the time the child has to spend commuting between homes.

What living arrangement is in River’s best interests?

[189] In reviewing the factors set out in the CLRA, the Court finds that it is in River’s interest to continue to have her primary residence with her Mother in Prescott. The child has spent all of her time with her Mother, with the Father having three hours of access per week. It is not in her best interest to change schools. She attends a school which is close to her home and is doing well. She has close friends at her current school. The child will also be adjusting to the new expanded visiting schedule with her Father. I also do not accept the Father’s position of considering the option that the child attends a school that is in Perth, or midway between the parents’ homes. This would place her in a community of children where she knows no one and has no roots in the community. The evidence shows that the child is flourishing in the care of her Mother, but that she also greatly enjoys the time she spends with her Father.

[190] The child’s primary residence shall remain with the Mother. However, the parenting time of the Father shall be gradually increased as follows:

• Beginning the week of July 24, 2023, until August 15th, 2023, the Father is to have the child for a visit of six hours each week. The parties are to choose the date and times of the visit by communicating on Our Family Wizard app. In the event that the parties cannot agree, the Father’s preference shall prevail.

• There are to be no restrictions on where the child can go during the visit. The exchange will take place at the Rose Garden Family Support Centre in Smiths Falls. The Mother does have a past affiliation with the Rose Garden Family Support Centre in Brockville, although she denied it in court, and given that the child is not currently in school, the exchanges shall take place in Smiths Falls.

• After August 15th, the Father is to have two overnight visits before the beginning of school on September 5th. The Mother will, twice a month in August of 2023, deliver the child on a designated and mutually agreed upon day at 3 p.m. at the Rose Garden Family Support Centre in Smiths Falls. The Father will return the child to the Rose Garden Family Support Centre in Smiths Falls on the following day at 3 p.m. If the parents cannot agree upon the day after consultation through the Our Family Wizard app, the Father’s preference shall prevail.

• When school begins in September, the Father is to have one midweek visit with the child each week for two hours in length. The Father shall pick up the child after school on a day of the week which is suitable for both parties and return her two hours later to a mutually agreed exchange location in Brockville as these visits are occurring during the school week. If the parties cannot agree on a suitable day for the midweek visit, the Father’s wishes shall prevail. In addition to a weekly midweek visit with the child of two hours, the Father shall also have two overnight visits with the child per month. The Father will pick up the child from her school on Friday after school and return her to the Smiths Falls Rose Garden Family Support Centre on Saturday at 3 p.m. This schedule will continue until March 1, 2024.

• In January of 2024, the Father will continue to have to one midweek visit with the child each week for two hours in length. In addition, The Father shall also have two overnight visits with the child per month where the Father will pick the child up from her school on Friday after school and return her to the Rose Garden Family Support Centre in Smiths Falls on Sunday at 3 p.m.

• Beginning on March 1, 2024, the Father will have a mid-week overnight visit with the child on Wednesday evening and have the child every other weekend. The Father is to pick up the child after school on Wednesday and return her to school the following day. On every other weekend, the Father will, in addition to the mid-week overnight visit, have the child from Friday night after school until Monday morning. The Father will pick up the child after school on Friday and return her to school on Monday morning.

• In addition to the regular schedule, I will also deal with the issue of parenting time during holidays. The specific details may not work for the parties due to individual scheduling needs which were not drawn to the court’s attention. If the parties are unable to resolve the scheduling details between themselves, the matter can be brought before me.

Holiday Schedule:

• In 2023, the Father will have the child from 1 p.m. on Christmas Eve, December 24th, until Christmas afternoon December 25th at 1 p.m. The exchange will take place at the Rose Garden Family Support Centre in Smiths Falls. The Mother will have the child from 1 p.m. onward on Christmas Day.

• In 2024, the Mother will have the child from 1 p.m. on Christmas Eve, December 24, until Christmas afternoon December 25 at 1 p.m. The exchange will take place at the Rose Garden Family Support Centre in Smiths Falls. The Father will have the child from 1 p.m. on December 25th until Boxing Day, December 26th at 4 p.m.

• The schedule will alternate every year. Of course, if the parties are able to reach agreement with each other, they are free to vary the schedule. As the child ages, she should be able to spend more of her Christmas school holiday with her Father. If the parties are unable to agree on an equitable arrangement regarding Christmas holidays as the child ages, this may warrant a motion to change.

• The statutory holiday long weekends including the Family Day holiday, the Victoria Day weekend, the Easter long weekend, Canada Day (including the weekend where appropriate) the Civic Holiday Weekend, Labour Day Weekend and Thanksgiving weekend will follow the child’s usual schedule unless the parties can agree otherwise. To be clear, where the Father has the child for a weekend which includes any of these holidays, the Father is to have the extra day with the child.

• During the March break, the Father is to have the child for two consecutive days and nights, in addition to his regularly scheduled parenting times. If the parties cannot agree on which days and nights, the Mother’s wishes shall prevail. The Father is to pick up the child at the Rose Garden Family Support Centre in Smiths Falls on his designated day at 10 a.m. and return the child to the Rose Garden Family Support Centre in Smiths Falls two days later at 4 p.m. The Mother shall have the child for the balance of the March break. In 2024 and thereafter, the child shall spend half of the March break with the Father and half with the Mother. In even numbered years, the Father’s preference for which days he has the child will prevail. In odd numbered years, the Mother’s preference for which days she has the child will prevail.

• The regular schedule will be adjusted so that, where relevant, the children may spend Mother’s Day with the Mother and Father’s Day with the Father starting at 5 p.m. on Saturday evening until Monday morning when the child is dropped off at school.

• The parties will both follow a regular bedtime and routine when the child is in their care. During school nights both parents will follow a regular bedtime routine and during the weekend a later bedtime can be accommodated, appropriate for the child’s age depending on the activity. The child’s current bedtime is 7 p.m. Both parties will respect that routine. The bedtime will evolve as the Mother determines.

• If the child is invited to a birthday party or other social event, the parent on whose parenting time the birthday/event happens to fall will decide if the child can attend the party/event and will also be responsible for purchasing any gift.

Child’s birthday:

• The child shall follow her usual schedule for her birthday.

Parent’s birthday:

• Both parents have the option to have the child with them for their own birthday. If the birthday falls on a weekday, the birthday parent will have the child for dinner at a time to be agreed upon between them. If the birthday falls on a weekend, the birthday parent will have the children for the day on the actual birthday at a time to be agreed upon between them.

Conflict With Parenting Schedule:

• If at any time there are conflicts with the parenting holiday schedule as described, then the Father’s preference will take priority in all even numbered years. The Mother’s preference will take place in all odd years.

Summer Vacations:

• Summertime provides an opportunity for parents to spend more time with the child without the constraints of a school schedule. Beginning in the summer of 2024 and thereafter, the child shall spend two weeks of her summer holiday with the Father. The Father shall choose which two weeks the child shall spend with him. The Mother agreed to the child spending two weeks with the Father but asks that they not be consecutive weeks. The court agrees with this suggestion. Therefore, the Father’s two weeks of summer vacation with the child will not be consecutive. The Father is to notify the Mother by May 1 of each year of his chosen weeks.

Changes and Cancellations:

• From time to time there may be the need to cancel or reschedule visits due to illness, work, travel or other unavoidable commitments. When this happens, the parties will provide each other reasonable notice regarding any change or cancellation. If a visit must be cancelled, make up time must be immediately scheduled.

Geographical Moves:

• Neither the Father or the Mother shall remove the child from the child’s current location, that being Prescott and Perth, without the other’s consent or a court/arbitration order.

Communications:

• All communications between the parents shall be through the Our Family Wizard app except for in the case of an emergency.

• Neither parent shall denigrate or disparage the other parent in the presence of the child.

• Communication between the parents shall be restricted to matters relating to the health and well-being of River, arrangements for activities and events, and any details regarding the transition.

Information sharing and Activity attendance:

• Both parents shall be entitled to full information about the medical and educational progress of River. They shall be able to obtain information directly from the school, medical doctors, dentists or other professionals that deal with River.

• Each parent is permitted to attend school functions, activity events, or extracurricular activities for River. Parents are not to communicate with each other at these functions and will make efforts to make these events as pleasant as possible for River.

Travel:

• Each person is entitled to travel outside of Ontario for vacation purposes upon reasonable notice of 30 days. If a passport or travel documents are necessary, the other parent will co-operate in providing the necessary documentation for the child to travel.

• The Mother can apply for the passport. The passport and all other identification documents will remain with the Mother, but she will provide a copy or the original if it is necessary for the Father, e.g., a passport for travel. The Father is to be listed as the first emergency contact.

• If a parent wishes to travel outside Canada, he or she will provide the other parent with the passport and executed travel consent. The traveling parent will provide the other parent with a detailed itinerary and contact information.

Life Insurance:

[191] Life insurance will be maintained by the Father in the amount of $100,000 as the appropriate security for child support. The Father will also maintain the current $60,000 life insurance policy through is employment. The Father will designate that the Mother ben named as irrevocable beneficiary in trust for the child. The Father will provide proof that the insurance is in place and appropriately designated within 90 days from the date of this Court Order.

Decision-Making:

[192] The Father argues that joint decision making is required in order that his input in the child’s life through making important life decisions is not minimized. However, the Father admitted he has a great deal of bitterness toward the Mother.

[193] I conclude that the Father and Mother are not able to meaningfully communicate with one another and come to some agreement about major life decisions regarding the child. These decisions must be made. However, the court also has a concern that the Mother will shut the Father out from participating in the decision-making process. In the past, the Mother has failed to notify the Father regarding important matters in the child’s life. In my view, it is in the best interest of the child that despite the conflict between the parents, that they both participate in the decision-making process. In order to minimize the difficulties between the parties, the court has ruled that the Mother is designated as the primary decision maker in matters relating to health and education. The Mother must consult with the Father and consider his views. This can be done through the Our Family Wizard app. Where the parties cannot agree, after meaningful consultation, the Mother shall have the final say. The Father will also be provided access to all health and educational professionals.

[194] The Father is designated the primary decision maker regarding the extra-curricular activities relating to the child. He must consult with the Mother through the Our Family Wizard app regarding the extracurricular activities in which the child is involved. Where the parties do not agree, the Father shall have the final say, after meaningful consultation with the Mother through the Our Family Wizard app.

Education:

• The child will remain at the Wellington Elementary school where she is currently enrolled.

• Each parent is equally entitled to any educational information about the child, including, but not limited to, report cards, pictures, parental mailings.

• Any educational decisions for the children will be made by the Mother after meaningful consultation with the Father through the Our Family Wizard app.

• Each parent is entitled to attend all school events, including, but not limited to, school plays, concerts, presentations, etc. The parents will not speak to each other unless both agree. They will make the experience as pleasant as possible for the child.

Health:

• The Mother will make all health decisions for the child after meaningful consultation with the Father through the Our Family Wizard app. Both the Mother and the Father are entitled to all health information relating to the child. Both the Mother and the Father are entitled to have the child’s medical documentation, including immunization records and health records, provided to them.

Dental:

• The Mother shall continue to have control over the child’s dental care. If she seeks a contribution by the Father to the child’s dental care, she shall first seek the approval of the Father for the dental care. The Father is to add the child as a beneficiary to his dental and health plan if this has not been done already. The Father is not to withhold the necessary documentation to permit the child to benefit from his dental and health benefit plan.

Religion:

• The Father and Mother are to share decision-making authority in relation to religious issues. The Father’s evidence is that he formerly attended church and may wish to familiarize the child with his faith. The Mother’s evidence is that she is not formally religious but believes in a Creator. This area did not, on the evidence before me, appear to be a potential source of conflict for the parents.

Extra-curricular activities:

[195] The Father shall enroll the child in extra-curricular activities of the child’s choice in proximity to the Mother’s residence. The Father and Mother shall be entitled to attend any lesson, practice, game or tournament associated with the activity. The Father will consult with the Mother through the Our Family Wizard app regarding registering the child in any activities. The Father will have the final decision in registering the child in any activities. Unless otherwise agreed, each parent is responsible for taking the child to any activities that fall on his/her parenting time. The parents will not speak to each other unless both agree. The parents will make every effort to make the experience pleasant for the child.

[196] In addition, if the parties cannot agree on a schedule for expanded parenting time with the Father as the child ages, particularly over the Christmas holidays, the parties may bring a Motion to Change to have the issue decided, without having to demonstrate a material change in circumstances, despite the fact this decision is a final order.

Child support:

[197] The Father shall continue to pay monthly child support according to the Guidelines. His current income is about $52,000 per year. S. 7 expenses shall be paid proportionate to income. I impute income to the Mother in the amount of minimum wage in Ontario for a full-time, (40 hour a week job).

Monies purported to be owed:

[198] The Mother denied the Father gave her $3,000. He asks that this $3,000 be deducted from any child support arrears. Child support was fully paid at the time of trial. The Mother admitted that the Father did provide some money for groceries and rent. However, these were gifts which the Father provided to the Mother prior to the birth of the child. The court declines to make an order that any funds be repaid, and I make no finding that $3,000 was paid to the Mother.

[199] Counsel are to prepare an approved to form and content draft order in accordance with the above terms and submit it for review and signature. If they cannot agree, both shall submit their version in Word and identify areas of dispute.

[200] If the parties are able to agree on other particulars not specifically set out in my decision, they can also be included in this final order.

Costs:

[201] If the issue of costs cannot be agreed upon, I shall determine it by written submissions. These shall not exceed three pages plus attachments of Bills of Costs and Offers to Settle the motions. The Mother’s submissions are due by August 1, 2023 and the Respondent’s by August 15, 2023. If necessary, the applicant may deliver a brief reply by August 22, 2023. Costs submissions are to be sent to my attention and emailed to scj.assistants@ontario.ca.

Anne London-Weinstein J.

Released: July 21, 2023