COURT FILE NO.: FC-19-2013
DATE: 2023/08/09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JEREMY WARREN SCOTT
Applicant
– and –
SARAH JOY BOUTILIER
Respondent
Self-represented Applicant
Annemarie Roodal, for the Respondent
HEARD: August 8, 2023
reasons for decision
uncontested trial re parenting ORDER
somji j
[1] The Respondent mother (“mother”) seeks a final parenting order for the parties’ 2½ year old child C.T.B. The mother seeks to have the child live primarily with her, for the father to have parenting time at her discretion, and to have full decision-making responsibility for the child.
[2] The father was noted in default and the matter was scheduled to proceed to an uncontested trial on parenting issues: Endorsements of Justice Audet, LAJ Family Law, dated April 24 and 26, 2023. The father was served with the materials for an uncontested trial. He neither responded nor attended the uncontested trial on August 8, 2023.
[3] The mother also seeks child support but agrees that this issue should be severed and addressed as part of a trial scheduled for November 2023 involving the parties’ second child L.G.B. Child support is also an issue in that matter.
[4] The issues to be decided are:
Have the grounds been met to proceed to an uncontested trial?
Is it in the best interests of the children to grant the parenting orders requested?
Issue 1: Have the grounds for an uncontested trial been established?
[5] Rule 10(1) of the Family Law Rules, O. Reg. 114/99 (“FLR”), provides for 30 days in which a Respondent may serve and file an Answer, failing which “[t]he consequences set out in paragraphs 1 to 4 of subrule 1(8.4) apply” pursuant to r. 10(5). One of those consequences is the option to proceed to an uncontested trial of the case.
[6] An “uncontested trial” is defined at r. 2(1) as “a trial at which only the party making the claim provides evidence and submissions.”
[7] In May 2022, the mother served and filed an Amended Answer in relation to C.T.B. The father did not provide a Reply and was noted in default by Justice Audet. An uncontested trial was scheduled for August 8, 2023. While not required to do so, counsel for the mother served the father with the trial materials on June 16, 2023. The father did not respond nor attend the court hearing.
[8] I note that the father also failed to attend a settlement conference on February 1, 2023, as well as a Trial Management Conference on April 24, 2023, with respect to the parties’ other child L.G.B.
[9] I am satisfied that the grounds for an uncontested trial have been established.
Issue 2: Is it in the best interests of the children to grant the parenting orders requested?
[10] The mere fact that the Respondent has failed to file an Answer does not preclude the need to ensure that proper evidence is filed by the applicant to enable a family court judge to make an order for the relief sought: E.S.R. v. R.S.C. (2019) ONCJ 381 at para. 208; CAS v. J.U. and B.P.-M., 2020 ONSC 3753, 42 R.F.L. (8th) 373, at para. 10.
[11] The primary consideration in determining the parenting plan for the children which includes primary residence, decision-making, and parenting time for the father, is the best interests of the children: Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 24 (“CLRA”). Section 24 of the CLRA endorses a child-centered approach in determining parenting orders: Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, at pp. 62-63, per L’Heureux-Dubé J.; Knapp v. Knapp, 2021 ONCA 305, at para. 34.
[12] The best interests of the child requires primary consideration of the children’s physical, emotional and psychological safety, security and well-being: CLRA, ss. 24(1)-(2). Section 24(3) CLRA lists additional factors that must be considered. The CLRA provisions read as follows:
Best interests of the child
24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.
Primary consideration
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.
[13] Recent reforms to the CLRA now require the court to consider the following factors when assessing the impact of family violence under clause 24(3)(j):
(4) Factors relating to family violence - In considering the impact of any family violence under clause (3)(j), the court shall take into account,
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and
(h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.
(5) Past conduct - In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. 2020, c. 25, Sched. 1, s. 6.
[14] While I have considered all the best interests factors in arriving at my decision, I refer below to those that are most relevant in these circumstances.
[15] The mother explains in her affidavit that she and the father were in a relationship in 2016/2017 which ended two days after the mother became pregnant with their first child L.G.B. in August 2018. After the birth of their first child, the parties had resumed living together for a short period and the mother became pregnant with a second child C.T.B. who is the subject of this proceeding.
[16] The mother has been the primary caregiver of C.T.B. since his birth, and he has lived primarily with her. Unlike with L.G.B., the father has shown little interest in parenting C.T.B. He has never had care of C.T.B. on his own. The father sees C.T.B. at parenting exchanges involving their eldest child or if the mother brings him to the father’s home.
[17] C.T.B. has special medical needs due to a cyst on his lung that is being monitored. The mother has been responsible for all of the child’s medical appointments. Despite this medical issue, the mother reports C.T.B. is meeting all his developmental milestones and is advanced for his age in some areas like speech. The mother involves the child in a variety of indoor and outdoor activities.
[18] The mother’s relationship with the father continues to be difficult. The father is sometimes calm and at other times, behaves badly towards her including sending degrading text messages and treating her disrespectfully. The mother has had to contact the police because of the father’s violence. On April 22, 2022, the father pled guilty to causing a disturbance following an incident involving a third person that took place during a parenting exchange. The father was placed on probation for 15 months, and one of the conditions of the probation order was that he not have contact with the mother save for certain exceptions. The mother does not have any confidence that joint decision-making is possible in these circumstances.
[19] The mother has concerns about the father’s ability to care for either of the children and certainly both at one time. She has concerns that the father has been neglectful in his care of their eldest child and that he has also been violent towards her in the past. These issues are likely the subject of the November 2023 trial involving L.G.B. The mother also identifies concerns about the hygiene of the father’s home.
[20] Upon consideration of the best interest factors, I find that it is in C.T.B.’s best interest to reside primarily with the mother, for her to have decision-making responsibility for the child, and for the father to have parenting time at the mother’s discretion. The mother has been the child’s primary caregiver since birth: 24(3)(d). She has attended to all the child’s development needs to date, including his medical condition, and continues to do so: 24(3)(a). C.T.B. has a strong bond with his mother: 24(3)(b). Notwithstanding the father’s limited interest in caring for the child, the mother has demonstrated a willingness to support the child’s relationship with the other parent by taking the child to the father’s house from time to time: 24(3)(c). The father has not presented any plans for the child’s care: 24(3)(g).
[21] The mother has also raised concerns about the father’s history of care with the eldest child including claims of possible violence. C.T.B.’s exposure to family violence is a factor I must consider: 24(3)(f). Consequently, I have considered the issue of family violence in my decision, recognizing that while they have been left unchallenged in light of the father’s failure to respond to this application, these allegations of family violence are likely the subject of the November 2023 trial involving the parties’ other child, L.G.B.
[22] Upon consideration of all the factors, I find it is in C.T.B.’s best interests to grant the mother the parenting order requested.
Other – Financial disclosure and child support
[23] Given the child is and will continue to reside primarily with the mother, the father is required to pay child support for C.T.B. However, the mother is agreeable to adjourning this issue to be dealt with at the same time as her trial involving the parties’ second child. Therefore, the issue of ongoing and retroactive child support for C.T.B. shall be determined at the same time as the trial involving the parties’ other child, L.G.B so that the amounts payable for both children by the parents can be specified at that time and upon the court having complete financial disclosure regarding the parties’ respective incomes. In this regard, there will be an order that the father provide updated financial disclosure within 30 days to permit the calculation of child support.
Order
[24] There will be a Final Order with respect to the child C.T.B. that
Pursuant to the Children’s Law Reform Act:
The mother shall have sole decision-making responsibility for the child;
The child’s primary residence shall be with the mother.
The father shall have parenting time with the child C.T.B. at the mother’s discretion, including the specific time and duration of the visits, frequency, location, and level of supervision if any.
Pursuant to the Family Law Act:
- The issue of ongoing and retroactive child support for C.T.B. shall be determined at the same time as the trial involving the parties’ other child L.G.B so that the amounts payable for both children by the parents can be specified at that time upon the court having complete evidence of the parties’ respective incomes.
Pursuant to the Family Law Rules:
The father shall provide his 2019, 2020, 2021 and 2022 income tax returns and assessments to the mother within 30 days.
The father shall provide to the mother copies of all job applications made, or proof of job applications, the responses received and details of efforts made to obtain employment since January 1, 2021 to date, and ongoing up to trial.
N. Somji J.
Released: August 9, 2023
COURT FILE NO.: FC-19-2013
DATE: 2023/08/09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JEREMY WARREN SCOTT
Applicant
– and –
SARAH JOY BOUTILIER
Respondent
reasons for decision
uncontested trial re parenting ORDER
SOMJI J.
Released: August 9, 2023