Cameron v. Luckhardt, 2023 ONSC 5477

COURT FILE NO.: FC-19-54847 DATE: 2023-09-29 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Itego Tekere Cameron, Applicant AND: Crystal Lori Luckhardt, Respondent

BEFORE: Justice M. Tweedie

COUNSEL: Vivian James, Counsel for the Applicant Respondent, self-represented

HEARD: November 21, 22, 23, 28, 29, 30, 2022; December 1 and 2, 2022; January 23, 25, 26, 27, 2023; February 7 and 8, 2023.

REASONS FOR JUDGMENT

BRIEF BACKGROUND AND SITUATION AT TIME OF TRIAL

1The parties are Itego Tekere Cameron, Applicant Father (who will be referred to as “the father”), and Crystal Lori Luckhardt, Respondent Mother (who will be referred to as “the mother”).

2The parties have two children together: Keira Luckhardt-Cameron, born March 7, 2008, and Liam Luckhardt, born February 14, 2014. The father has a child from a previous relationship, Kacean Cameron, born January 5, 2004.

3The mother and father met in the fall of 2006. At the time, the father resided primarily in Jamaica, and was in Canada as a temporary worker. The father returned to Jamaica in November or December 2006, and the parties continued their relationship. The mother went to a resort in Jamaica with a friend in late spring 2007, and during this period, she spent time with the father and met his extended family. The father returned to Canada for another season of temporary farm work for the 2007 season, and during this period, the father met the mother’s extended family. Also, the mother became pregnant with Keira. The father again returned to Jamaica in November 2007.

4The father was unable to get a visa to return to Canada for Keira’s birth. The mother and Keira travelled to Jamaica in June 2008, when Keira was 4.5 months old. This was the first time that the father met Keira.

5The parties were married on July 9, 2008, in Jamaica. The mother and Keira remained in Jamaica for a few months and the mother, father, Kacean, and Keira lived together.

6The mother returned to Canada and ultimately sponsored the father and Kacean to immigrate to Canada. The father and Kacean arrived in Canada in August 2010. Kacean only stayed for a few weeks, but then returned to live with the parties full time from 2012-2013, and then finally returned to Canada to live with the family in 2015 and has remained since.

7During the marriage, the parties separated and lived in separate residences on two occasions; two months in 2013, then again between 2013 and 2015. Liam was born during this second period of separation. Their final separation occurred on January 25, 2019.

8History of proceedings:

a. Father commenced application in December 2019. In that same month the parties reached an agreement regarding parenting time.

b. The parties entered into a consent temporary order on February 12, 2020, which ordered that Kacean would have her primary residence with the father, Keira and Liam would have their primary residence with the mother, and the father would have parenting time with Keira and Liam a minimum of:

i. Every other weekend from Saturday at 3:00 p.m. to Monday morning at school.

ii. Every Wednesday from after school until 8:00 p.m.

iii. The order sets out provisions for holiday parenting schedules.

c. The February 12, 2020 order had other provisions, including:

i. No person shall care for the children or drive with the children while they are under the influence of alcohol or illegal substance, and that the mother will specifically ascertain that the maternal grandmother, Peggy MacDonald, is not under the influence before allowing her to care for or drive the children.

ii. The parents will not permit any person to make any disparaging remarks about the other parent to the children or in the hearing of the children.

iii. The parties shall forthwith complete and sign all documentation required to amend the name of the child Liam Luckhardt to Liam Luckhardt-Cameron.

d. There was an urgent motion brought by the father as a result of his allegations that the mother was not complying with an interim order for parenting time. It was heard on May 14, 2020. By the time the motion was heard, the father had resumed regular parenting time and the outstanding issue was make-up time and costs. Justice Walters, in her endorsement, commented on the mother’s behaviours, which I will refer to later in this decision.

e. The parties agreed to the divorce being severed from the corollary issues and the divorce was granted on June 26, 2020.

f. The father brought a contempt motion August 10, 2022. In her reasons dated October 20, 2022, Justice Breithaupt Smith did not find the mother in contempt but ordered make-up parenting time for the father.

9Since the parties’ separation, Kacean has resided with the father and has had limited contact with the mother. Keira and Liam have remained in the primary care of the mother with the father having parenting time. The current parenting time is governed by the order of Piccoli, J. dated February 12, 2020.

10Kacean graduated high school in June 2022, is working and not currently pursuing post-secondary education. She continues to reside with the father.

11The father is exercising his parenting time with Liam in accordance with this order.

12The father was having parenting time with Keira in accordance with this order, however, as of approximately October 2020 (neither party could recall a specific date) Keira stopped attending parenting time with the father following an incident which is described later. At the time of trial, the father and Keira would have some text exchanges, and there was some contact over Christmas break 2022, but no regular parenting time.

POSITION OF THE PARTIES

13The father seeks the following orders (among other corollary provisions):

(a) Parallel decision making, with the father being responsible for the health decisions, the mother responsible for education decisions, with day-to-day care decisions made by the parent in whose care the child is.

(b) That the child Liam’s primary residence be with the father, and the child Keira’s primary residence be with the mother; or, in the alternative, the child Keira shall reside primarily with the mother and the child Liam shall reside equally with the mother and the father on a week about basis. He also seeks a schedule of parenting time with Keira, and a holiday parenting schedule.

(c) Set holiday parenting time schedules.

(d) A police enforcement clause.

(e) An order that the parties register Keira and Liam in individual counseling as well as reunification counseling between Keira, Kacean, and the father.

(f) An order for child support, including an order that he has overpaid child support in the amount of $5894.00 to be repaid by the mother to the father in monthly installments of $50.00.

(g) A declaration that the mother stands in the place of a parent to Kacean, and an order for retroactive child support for the support of Kacean.

14The mother seeks the following order (among other corollary provisions):

(a) Sole decision making for Keira and Liam.

(b) Keira and Liam shall reside primarily with the mother and Kacean with the father.

(c) The father’s parenting time with Liam be alternating weekends from Friday after school to Sunday evening, and every Wednesday evening from after school until 7:30 p.m., and set holiday parenting time schedules.

(d) The father’s parenting time with Keira shall be in accordance with Keira’s wishes.

(e) An order for child support payable by the father to the mother based on an imputed income of $70,000.00.

(f) An order fixing arrears of child support in the amount of $34,648.00 as of December 31, 2022.

EVIDENCE

15The father gave evidence and called the following witnesses: his friend Paulette Lewis; Julie Arthur, child protection worker at Family and Children’s Services of the Waterloo Region; Peggy MacDonald, the maternal grandmother.

16The mother gave evidence and called the following witnesses: her father’s common law partner, Lisa Hodgkinson; her cousin, Lisa Dawn Brooks; and her friend, Sandra Santos.

17I do not propose to recite and detail all the evidence presented by each witness. I have considered all the evidence presented at trial, and this decision refers to the evidence which is material and relevant to the issues or necessary to provide context to the decision.

18The mother’s evidence was crafted to perpetuate her view that she has been overly burdened with the responsibility as a single parent, who sacrificed for her children, due to the lack of involvement of the father. She was very detailed and sure of her recollection in her evidence that support this narrative, however, would often not be able to recall events and conversations in cross-examination. When cross-examined she would often be vague with her answer, and at times would ultimately concede to the facts being put to her. She used the phrase “it was contentious” frequently as a reason why she couldn’t recall conversations. On at least two occasions I had to intervene to direct the mother to answer a question because she was being vague.

19The father was more balanced in his evidence, as he would, without prompting, acknowledge positive facts and traits of the mother. His recollection of facts and dates was at times foggy, and I have taken this into consideration. When being cross-examined by the mother, he was difficult at times and used the opportunity to make critical comments to the mother.

PARENTING TIME

20Section 16 of the Divorce Act prescribes that parenting orders are to be determined only on the basis of the best interests of the child, and sets out the factors to be considered by the court in such decisions:

Best interests of child

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

Primary consideration

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

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

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

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

(d) the history of care of the child;

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

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

(g) any plans for the child’s care;

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

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

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

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

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

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Factors relating to family violence

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following 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 their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

Parenting time consistent with best interests of child

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

Parenting order and contact order

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

21In this decision, I will not comment on each factor listed in s.16(3), but instead will focus on those factors which are particularly relevant to this family.

(a) Willingness of each parent to support the child’s relationship with the other

22I find the mother has much to work on in this regard. She excludes the father from the children’s lives, she minimizes the father’s contribution to the children’s lives, and she minimizes importance of him in the children’s lives.

23The mother has a history of denying parenting time. The mother denied parenting time over Christmas of 2019, necessitating a motion which was ultimately resolved on consent on February 12, 2020. The February 12, 2020, order was not followed, and a further motion was brought and heard by Justice Walters May 14, 2020. In her endorsement, Justice Walters found that the mother had little insight into the impact of her actions when she withholds parenting time or allows the children to choose if they can go for their visits and found that she did not have the best interests of the children in mind when she discusses with them whether or not they should go for parenting time with the father.

24The mother did not learn from Justice Walters’ comments. In July 2022, the mother did not comply with the summer vacation parenting time provisions in Justice Piccoli’s February 12, 2020, order, resulting in a contempt motion being brought by the father, which was heard in August 2022. Justice Breithaupt Smith did not find the mother in contempt but ordered make-up parenting time.

25The mother disregards the importance of the father’s role in the children’s lives:

(a) She consistently referred to the children as “my children”, even after being challenged on this characterization in cross-examination.

(b) The mother failed to tell the father of the birth of Liam. The mother testified that the father denied Liam was his child. However, on cross-examination, she testified that she could not recall the father specifically stating this to her, only that she heard it through a friend; and further, that she had conversations with the father about circumcision around the time that she learned she was having a boy. These two statements are incongruous. If the father denied paternity, he would not engage in conversations around the child’s circumcision. I find the mother willfully withheld notifying the father of Liam’s birth.

(c) The father testified that the mother did not involve the father in Liam’s life for some months after he was born, however, this evidence was inconsistent. He once stated it was for approximately 9 months, but also stated that the first time he cared for Liam was in May 2014 when the mother asked him to take Liam while she went to celebrate her birthday. The mother testified that the father did not ask to be involved; that he would only put his head in the door briefly when he would pick up or drop off Keira from his parenting time when Liam was an infant. Given the conflict between the parties over the course of their relationship, it is likely neither was speaking with the other, and I find both parties contributed to the father not having parenting time with Liam following his birth.

(d) On February 12, 2020, on the consent of the parties, Justice Piccoli ordered that the parties shall forthwith complete and sign all documentation to change Liam’s name from “Liam Luckhardt” to “Liam Luckhardt-Cameron”. The parties corresponded through counsel regarding the execution of the necessary forms. The last correspondence from the exchange is a letter from Ms. James to James Pietrangelo (the mother’s counsel at the time) dated August 27, 2020, in which Ms. James sends Mr. Pietrangelo an application to change Liam’s name, as amended in accordance with the previous directions of the mother. At the time of trial, the mother had not yet signed the amended application and the child’s name remained “Liam Luckhardt”.

(e) The mother’s recounting of the past parenting roles essentially ignores the father. She often testified about the sacrifices she had to make as a single parent, that she dedicated her whole life to the children, and that she suffered as a single parent. She does not acknowledge that the father was unable to be more involved during the time that he was residing in Jamaica. She also created more responsibility for herself by denying the father parenting time. She does not acknowledge that the father, too, parents and provides emotional support and guidance to the children. The narrative of her being a single mother with an absent or uninvolved father was continued by the mother’s witnesses, Lisa-Dawn Brooks and Sandra Santos.

(f) However, I note that the father often refused to take the children to activities if they fell during his parenting time and was inflexible to accommodate the mother if she requests a change in schedule or assistance when she is having difficulty ensuring each child is able to get to their activities. This rigidity results in the mother having to unnecessarily take on more responsibilities.

(g) In testimony, the mother characterized the time that Liam spent with the father without Keira as time that “my children are separated” not as time that is important for the continuation of Liam’s relationship with the father.

(h) In cross-examination the mother would not admit that Keira, despite the current relationship with her father, still loves her father. But other witnesses testified that Keira wishes to have a relationship with him but expects him to take the first step.

26This is not to say the father does not have changes to make as well. The father is given credit for the fact that from time to time during his testimony he spontaneously identified positive actions of the mother and gave credit to her about how well the children are doing. However, his actions demonstrate that he does not provide the mother with information and uses the scheduling of his parenting time as a means to cause problems for the mother. This is not child focused and results in the children being placed in the middle of the parents’ conflict.

(a) He did not provide the mother with information as to where he was living following their separation.

(b) He is rigid and inflexible and will not agree to the mother’s requests for slight changes in the parenting schedule but makes demands for changes if his schedule requires it. For example, on September 16, 2020, the father sent a message to the mother on the Our Family Wizard parenting app (OFW) stating “I already gave you notice about my shift change…picking up the kids Wednesday after school. Wednesday access starts back”. The mother, to her credit, had accommodated a change prior, and then agreed to change back to Wednesdays, but stated it could not occur until September 30, 2022. Despite this, the father attended the after-school program on a Wednesday prior to September 30, 2023, and picked Liam up contrary to the mother’s agreement and without advising the mother.

(c) The father prioritizes his parenting time over children’s activities. Both children have missed birthday parties, and Keira missed a combined church/school event because they took place during his parenting time. The father is unwilling to change his schedule to benefit the children, nor will he take the children to activities. For example, Keira had soccer on a night the father had parenting time with Liam, and he would not change his night even once to allow Liam to attend to watch Keira. The father testified that he used to accommodate the mother’s requests for changes, but now would not unless if the mother requested “in a proper manner”. This is not child focused and likely done to frustrate the mother.

(d) Despite his expectations that the mother precisely comply with parenting times set out in court orders, the father would demand parenting times different than in the order, which the mother would sometimes accommodate.

(e) The father would not respond to the mother’s questions about access exchanges and confirming pick up because it was his scheduled access and he felt there was no need to respond.

(f) The father feels he does not need to notify the mother who is picking children up for regularly scheduled visits if it is not him.

(g) Father says often in OFW messages that its none of her business what happens in his home. While the mother may not be entitled to micromanaging, she should be aware of what is happening in the children’s lives. The father does not provide the mother with information to enable her to meet the needs of the children when they are returned to her. For example, in March 2023, Liam returned from parenting time at his father’s, spoke to the mother of a police scene at the father’s apartment where he saw blood and police tape, explaining that he felt uneasy and scared. The mother let the father know this through OFW. The father responded that he did not need to explain this to the mother, nor was he obliged to tell her about this.

27The father’s behaviour sends the message to the children that the mother is unreasonable and further places the children in the middle of the conflict between the parents.

(b) Parents’ ability to shelter the children from the conflict

28It is not controversial to state that children are negatively impacted by exposure to conflict. In fact, it has been stated that exposure to conflict is the “single most damaging factor for children in the face of divorce.” (see: Mattina v. Mattina, 2018 ONCA 641 at para. 21). Despite this, the parents continue to allow the children to see, hear, and feel the conflict between the parents.

29The mother in cross-examination admitted that she would have had conversations with friends within earshot of the children, during which she complained about the father.

30The father has admitted to taking video and audio recordings of the children regarding parenting time and during exchanges. I agree with Justice Pazaratz, who states in Whidden v. Ellwood, 2016 ONSC 6938, at paragraph 96:

Access exchanges in high conflict files are already tough enough for children. Pointing a camera – or multiple cameras – at the interaction merely heightens the child’s unease and worry that something bad is expected to happen. That someone they love is about to misbehave. That one parent is trying to get the other parent in trouble.

(i) Reports to the Children’s Aid Society of the Regional Municipality of Waterloo

31The father made a report about the mother to the Children’s Aid Society of the Regional Municipality of Waterloo (the Society). On February 26, 2019, he contacted the Society to report concerns that the mother was allowing the maternal grandmother to care for the children while intoxicated. This was following an incident during which the maternal grandmother called him derogatory names and threatened him the presence of the children. This incident is discussed in further detail later in this decision. The Society spoke with the father and the mother, but not the children as the mother did not agree. The Society approved the file to be closed on March 1, 2019, as the mother reported that she was aware of the maternal grandmother’s alcohol issues and would not leave the children alone with her when intoxicated. However, the Society records also indicate the Society had concerns related to the conflict between the mother and the father.

32The mother made a report to the Society on July 21, 2022, reporting that Liam was anxious and nervous before access with his father and stated that Liam was subjected to emotional abuse by the father. She alleged that Liam had witnessed the father physically abuse Kacean and Keira. This report was made shortly after a dispute about access which resulted in police involvement, which is described in more detail below.

33Julie Arthur, the Society child protection worker assigned to work with the family during this opening, testified. Her evidence was balanced and thorough. She had good independent recall of her involvement and did not often refer to her case notes.

34Ms. Arthur first met with the mother and the children on August 11, 2022. The children did not agree to speak with her alone. She stated that the meeting became more of a discussion rather than an interview of the children, as the mother and children would speak at the same time and add to each other’s comments. She testified that the mother did not appear to tell the children what to say but would prompt them to tell Ms. Arthur things. The children reported to Ms. Arthur that the father was strict, that he yelled a lot, and that they could not stand up for themselves if he gets angry. They are expected to do as they are told at the father’s home. Liam reported that a couple of years prior he saw the father push Kacean against a wall. Keira reported an incident when she was trying to stand up for herself, and stated the father elbowed her in the face when he was grabbing her phone. This incident led to her no longer visiting with the father. Liam stated that he did not wish to visit with his father, but his mother tells him he must because the mother can’t afford to fight any more.

35Ms. Arthur met with the father, Liam, and Kacean on September 21, 2022. The father allowed Liam to meet privately with Ms. Arthur, and Liam agreed. He did not appear anxious to Ms. Arthur. Liam did not report any concerns about either parent, or Kacean. He reported that his mother showed him a text in which the father called the mother a “whale”. Liam was surprised as neither parent spoke about the other parent. Liam also reported that he wasn’t interested in calling his mother when he was with his father. Kacean did not report any concerns and denied the father had pinned her against a wall. Ms. Arthur did not note any concerns with the interactions she observed between Liam and the father.

36What the children reported to Ms. Arthur is hearsay. Ms. Arthur testified that during the meeting with the mother and children, each would interject when the others were speaking, so it was not a fulsome interview and more of a conversation. The second interview between Ms. Arthur and Liam was independent of the father, while in the father’s care. It is unclear what Liam might have reported if he was interviewed independent of his mother but while in her care, and whether his reports would be consistent. I am relying on the statements made by the children not as proof that the alleged events occurred, but as part of the narrative of the Society’s involvement and assessment process.

37Ms. Arthur did not verify the concern regarding risk of emotional harm to the child due to post-separation conflict as the children were not showing signs of distress. However, she scaled the risk of emotional harm as moderate. The closing letter sent to the parents, dated October 6, 2022, stated that the Society was concerned about how much the children knew about the ongoing court proceedings and the conflict. They recommended counseling for both children, and that the parents attend the Conflict Coaching Program at Community Justice Initiatives.

(ii) Involvement of Waterloo Regional Police Service

38The parents threaten invoking the police enforcement clause in their exchanges on OFW. Waterloo Regional Police Service (WPRS) has been called for assistance in enforcing parenting time on three occasions, without consideration of the impact on the children. The father called WRPS on the first two occasions. It is unclear who contacted WRPS on the third occasion.

39The first instance of WRPS involvement was prior to the police enforcement order included in Justice Walters’ endorsement dated May 14, 2020. The father did not testify to the precise situation, but he was advised that although the mother was not cooperating with parenting time, the police would not assist because there was no police enforcement order. The mother did not provide any evidence regarding this involvement; perhaps she was unaware. No police report regarding this event was entered into evidence.

40The second involvement of WRPS occurred on April 4, 2021. An Occurrence Report filed as an exhibit provides some information. The parties consented to the report being entered as an exhibit as a business record without the need of calling an officer. The report details that the father contacted WRPS to state that he was at the mother’s home to pick up Liam for his parenting time, but the mother and child were not home. Constable Singh requested the mother and the father to meet at a common place to have a conversation to solve the situation. Neither parent agreed. Ultimately, the father agreed to return to his home, where the mother was waiting with Liam. With police assistance, Liam went with the father “willingly and without any incident”.

41The OFW communication surrounding this incident was also entered as an exhibit. The exchange started on March 31, 2021, with the mother messaging the father that she would like his visit on Easter Sunday to start at 3:00 p.m. because she had plans for an easter egg hunt, and that Liam was to be returned to her care the Monday evening at 8:00 p.m.

42The existing order provided the father had parenting time on Easter from Sunday at noon until school on Tuesday morning. The father insisted on following this schedule. After some exchanges about who would be assisting the father with transportation (he was unable to drive due to an injury), the father messaged “I will be picking up Liam at 12 noon from your home. Have him ready or I will exercise the police enforcement”.

43On Easter Sunday, April 4, 2021, at 11:48 a.m. the father messaged the mother in OFW “I will be at your house at 12PM to pick Liam up”. The mother responded in OFW at 11:53 a.m. “We are not home and as previously advised I am in (sic) my way to your house with Liam”. It appears the mother communicated via text that she was dropping Liam off at the father’s house.

44Each parent waited at the other’s residence for at least 45 minutes, exchanging messages through OFW.

45While waiting at the father’s home, the mother had her friend, Sandra Santos, bring Keira to the scene, and they all waited together. When cross-examined, the mother stated that it was “absolutely” important for Keira to be present, because she needed to be with her mother, and to know that Liam was OK and that everyone would be OK.

46The Occurrence Report from WRPS shows that the father contacted the police at 12:26 p.m.

47This was not a situation that should have involved the police. Both parents and their inability to compromise or do one another a favour led to this incident. The mother even involved Keira in the incident by having her friend Sandra Santos bring Keira to the father’s home instead of asking her to do something with Keira until the issue was resolved. Each parent had the ability to avoid the whole event, and neither did so. They were blind to the impact on the children and were unwilling to “give in” to the other parent for the benefit of the children.

48I note that the Society records document that WRPS made a report to the Society following this involvement, with concerns of the impact of the conflict on the children.

49The third instance of WRPS involvement occurred in July of 2022. No Occurrence Report was provided regarding this event but both parties testified about it. This is what prompted the father’s contempt motion in August 2022. The father had provided the mother advance notice of consecutive weeks of parenting time in accordance with the February 12, 2020, order. The mother did not respond to state that there was an issue. One week prior to the father’s week, the mother stated that she had registered Liam for camp. The father refused to change his week. The father had his regular weekend parenting time over the weekend leading up to his week, and the mother, without notice, attended at the father’s home, with Keira, that Monday morning. Liam left the father’s apartment to see the mother. The father assumed she was picking him up to take him to camp instead of allowing him to have his summer parenting time. The evidence is unclear as to who made the initial call to the police. The father testified that he called police, and the mother did not cross-examine him on this point. However, the Society records that were filed as an exhibit with the court document that the mother reported to the Society during her initial report that she had called the police.

50The officer met with both the mother and the father. The mother claimed that Liam did not wish to go to the father, and the father’s evidence was that the police were reluctant to state that Liam must go with the father. Perhaps this is because this was in relation to summer parenting which did not have a set schedule. Perhaps it was because Liam was stating he did not wish to stay at the fathers. The father did not push the issue any further, allowed Liam to go with the mother, and later brought his contempt motion.

51The last two instances of police involvement stem from BOTH parties’ inability to work cooperatively, compromise, and put the interests of the children first. The mother makes plans for the children without consulting the father. The father is angry about this, and so does not agree to a schedule that accommodates these plans. Neither parent will concede, the father attends for a visit at the time that he dictated, and the mother is not present. Police are called unnecessarily. The children pay the price.

52The father seeks a police enforcement clause pursuant to s.36 of the Children’s Law Reform Act. In Patterson v Powell, 2014 ONSC 1419, Pazaratz J. reviews the law in relation to police enforcement clauses.

Nothing in s. 36 suggests police enforcement is appropriate - or even available – as a long-term, multiple use, open-ended, on-demand enforcement tool. (para. 16)

But when ongoing police enforcement clauses are requested as a long-term compliance strategy in temporary or final orders, courts should insist that the parties take available time to fully canvass less destructive and more creative (perhaps even therapeutic) alternatives. Before considering a long-term or permanent police enforcement clause (presuming the latter is even available as an option) courts should require evidence of the potential positive and negative impact of police intervention in each member of the family unit – most particularly, the children themselves. (para. 24)

53As I have found that police involvement has been inappropriately requested and has involved the children in the conflict, I will not order a police enforcement clause.

54However, these parties need assistance in learning how to communicate in a manner that is respectful and limits the impact on the children. Courts have ordered parents attend co-parenting courses/counselling when it is determined the best interests of the children require the parents learn how to communicate without conflict (see: Ibitoye v. Ibitoye, 2023 ONSC 2008; T.W. v. J.A., 2023 ONSC 3123; Saco v. Royer, 2021 ONSC 2142). I am ordering the parents attend the Conflict Coaching program through Community Justice Initiatives, which I understand to be accessible via zoom and geared to income, and which was the program recommended by Ms. Arthur upon the closing of the child protection file.

(c) Father’s relationship with Keira

55Keira has not been visiting with the father since some time in 2020. The father stated that it was October 2020, however, OFW communications between the parents on August 4, 2020, suggest that the father and Keira stopped communicating sometime in May 2020. Since then, their contact has been through text messages. At the time of trial, Keira was open to meeting the father for a meal outside the home as a first step, but no plans had been made.

56This lack of contact between the father and Keira follows an incident during which the father told Keira that she was not welcome in his home. The father testified that in the months leading up to this, Keira was routinely not listening to him, would tell the mother things that were going on in his home, had conflict with Kacean, and would not comply with his discipline. This culminated in an event where he asked her to turn over her phone to him, she refused, and it led to him chasing her around the table. The mother states that the father elbowed Keira during this altercation.

57The father testified that “for my safety” Keira could not return until her behaviour changed. He testified that he was worried she would make false allegations against him regarding physical discipline.

58An OFW exchange between the parents on October 7, 2020, was entered into evidence. The mother messaged the father that both Liam and Keira were going to attend their visit with the father that evening, and that she had spoken to Keira and that Keira would be attending. The father was clear in the exchange that Keira first needed to call him to have a conversation before she could attend for parenting time.

59The parents have different parenting styles. This creates some challenges in co-parenting, particularly for the stricter parent, who, in this case, is the father. Parenting is hard. As children age, parenting techniques must change to respond to the child’s increasing desire for independence and self-autonomy. Sometimes, a parent must try several discipline strategies before finding one that works. Instead of reflecting on why his discipline might not be working and persevering, the father told Keira she was not welcome back in his home. The father showed little to no insight into the potential impact on Keira of his refusal to have her attend his house. He made no comment that he could or should have done things differently. He, the parent, put the onus on Keira to re-initiate the relationship.

60Since October 2020, the father has sent text messages to Keira, telling her that he loved her, using his pet name for her “boo bear”, and being supportive. Keira engages in limited discussions with him which include expressions of affection. However, the father did not provide any evidence that he has since initiated any meaningful conversation with Keira about the rift in their relationship. It appears he is waiting for Keira to do that, or for it to happen within the context of counseling.

61The mother and Lisa-Dawn Brooks both testified that the father gives more expensive gifts to Liam than Keira since Keira stopped visiting. The father did not refute this.

62As stated earlier, the father contributed to the breakdown in the relationship with Keira by telling her she is not welcome in his home, and taking no steps to initiate a conversation with her to discuss how each of them could have done better in the event leading to her no longer visiting. However, the mother has not encouraged Keira to repair this relationship, nor has she provided any strategies for Keira in this regard. I note again that the mother would not acknowledge that Keira loves her father, yet two witnesses she called, Lisa Hodgkinson and Lisa-Dawn Brooks, testified that they speak with Keira about how she would like a relationship with him.

63The mother would have the court believe that she does try to support Keira and the father in mending their relationship. She testified that she reaches out the father to advise him as to how Keira is feeling so that he might understand and respond to their needs. However, the tone and language of those OFW messages is accusatory, not supportive. The mother stated that she has made Keira go for visits with her father but has stopped doing this because Keira would be angry with her if the visit did not go well, and this is a huge strain on the mother. The mother was critical of the gift the father gave Keira for Christmas in 2022 because it was too big for Keira and over-emphasized that Keira needed to return it.

64The mother’s evidence was that she listens supportively to Keira when she is upset but that she does not provide advice to Keira about how to repair her relationship with her father nor encourage her to give things a try. When mother was asked in cross-examination if she encouraged Keira to have lunch or dinner or a short outing with the father when Liam is visiting, her answer was “no”. She does, however, support Keira if Keira decides to try to visit.

65Lisa-Dawn Brooks, who the mother has held out as a substitute for a counselor for Keira because she is a social worker, takes the same approach as the mother with Kiera. She testified that she listens to Keira about her relationship with her father, and then validates those feelings, such as agreeing that it would be disappointing if her father did not stay for her entire soccer game, or that it is disappointing that her father did not give her gifts like he did Liam. Neither the mother nor Ms. Brooks testified that they might suggest an alternative interpretation of the father’s actions, that they would provide concrete suggestions of steps Keira could take or words she could use to approach the subject with her father.

66Neither the mother nor Ms. Brooks testified that they initiate conversations with Keira to encourage her to visit.

67A parent must not just accommodate access, they must facilitate it. (see: Scrivo v. Scrivo, 2012 ONSC 2727; Tran v. Chen, 2012 ONSC 3994)

68I find that the mother does not encourage the relationship between Keira and the father. She is a passive observer of the deterioration of the relationship and does little to assist and foster its improvement.

(d) Father’s relationship with Liam

69There is no evidence to support that there are concerns with the father’s relationship with Liam.

70The father has a stricter parenting style than the mother. However, there is no evidence of this causing emotional harm to Liam nor is there evidence of physical discipline. Children of intact families must also navigate the differing parenting styles of their parents, and the parents should not be critical of the other’s parenting style in the presence of children.

71I cannot find that Liam has anxiety about visits with his father, or that he does not wish to visit with him. The only evidence of this are statements made by the mother. He continues to attend visits with his father, even knowing that Keira is not and does not wish to. This suggests that he enjoys the time with his father. Ms. Arthur, the Society worker, also testified that there was no suggestion from Liam that he did not wish to visit with the father and that she observed Liam to be comfortable while with his father.

72The father and his witness, Paulette Lewis, described activities that he would do with Liam, including visiting with Ms. Lewis and her grandson at her home, going to the park, going outside for him to ride his scooter or bike, going to movies and dinner, going to multicultural activities. The father testified that he is limited, however, due to his injuries sustained in a car accident, which are detailed later in the decision.

73The mother in her evidence in chief spoke of the father taking Liam to the barber and cutting off his long hair contrary to Liam’s wishes in September 2022. This was to suggest that the father is insensitive to Liam’s feelings. She testified that Liam loved his long hair. She testified that prior to school in September 2022, Liam wanted to have his hair stay long but would like an undercut which would leave his long hair on the top of his head. She did not seek the father’s consent before taking Liam for the undercut. She testified that 6 days later, the father cut off all of Liam’s hair, against Liam’s wishes. She testified that when Liam returned home from his parenting time, she and Keira were crying and crying because his hair was cut off and Liam told her he didn’t want it cut. Her evidence suggested that this was a traumatic event for Liam. She stated that she was hopeful that he will be able to talk about experiences like this when he goes to counseling.

74The father called his barber Adrian Agbedetse as a rebuttal witness. The barber was spontaneous and balanced in his evidence, and I find his evidence to be credible. He testified the father requested that Mr. Agbedetse clean up Liam’s undercut and lines. He testified that it was Liam who requested to have his hair cut short. He testified that as a barber he is reluctant to cut anyone’s long hair, so he asked Liam several times if he was sure he wanted it all cut off. Mr. Agbedetse testified he often goes as far as making the client make the first cut themselves but could not specifically recall if he did this with Liam. He testified that Liam was clear he wanted his long hair short, and that Liam continued to want the hair on the top of his head trimmed during subsequent visits to his shop.

75Photos and a video which the father took of the child following the haircut depict a child who is smiling, puffing his chest, and appears happy and proud with his new look.

76The father did not cut Liam’s hair contrary to Liam’s wishes. The mother’s dramatic reaction to the haircut is likely what caused Liam to tell the mother that it was the father’s idea because it was abundantly clear to him that his mother did not want his hair cut.

(e) Mother’s Care of the children

77The mother solely cared for the children when the father was out of the country. She was their primary caregiver during previous periods of separation and has been since the parents most recently separated in January 2019.

78The mother provides good care to the children. She meets their day-to-day needs, there are no concerns raised regarding her general parenting, there are no concerns regarding the children’s performance at school, and she ensures they are engaged in extracurricular activities without the financial or practical support of the father.

79The father raised concerns about the mother’s ability to tend to the children’s medical needs. At the time of the February 12, 2020 consent order, Keira was experiencing issues with encopresis which was referenced in the order. The mother did not follow up with this, however, testified that it is no longer an issue for Keira. The father also had concerns about the mother’s lack of follow through with engaging the children in counseling as recommended by Ms. Arthur upon the Society’s file closure. At the time of the trial, Keira had recently begun counseling (the father was unaware) and the parties were in the process of arranging for Liam to attend. The mother could have done better in ensuring Keira had the appropriate follow up regarding her encopresis, and ensured the children’s enrollment in counseling immediately after it was recommended by the parties, but overall, she has met the children’s medical needs.

80Although there are concerns about the mother’s lack of insight into the importance of the father in the children’s lives, this is not a case of parental alienation. The mother does not prevent the children from visiting, the children continue to wish to have a relationship with the father, there is no evidence that the children have a disdain or hatred towards the father.

(f) Children’s Views and Preferences

81As there was no OCL involved in this matter, the only evidence regarding the views and preferences of the children is the hearsay evidence of the witnesses regarding statements made by the children, and the factual evidence of interactions.

82At the outset of the trial, the parties agreed that it was necessary for the statements of the children to be offered into evidence as hearsay through the witnesses. I advised that it was important for the parties to lead evidence with respect to the reliability of the statements, and that the parties were to object if reliability was not established. Despite these parameters, there were no objections to the hearsay during trial, and neither party offered sufficient evidence to assess the reliability of the statement. I therefore placed little weight on statements attributed by any witness to either of the children.

83However, the overreaching views and preferences of the children can be gleaned from their actions. Keira is not visiting with her father. She has not reinitiated visits, other than one occasion when she suggested they go out for dinner, before she attends at his house for a visit. This demonstrates that currently she does not want to have extended time with the father but would like to have some visits with him, with a view to expanding as they work on their relationship.

84Liam attends visits with his father, and there is insufficient evidence to suggest that he has anxiety or fear of visiting. The video of Liam after his haircut, while only one glimpse, shows that he was happy during that visit and liked the food that his father had cooked.

(g) The Children’s Cultural Upbringing and Heritage

85The father is Jamaican and Black. I am unaware of the mother’s cultural heritage, and she is White.

86The father’s connection to his Black and Jamaican roots is strong. He recently immigrated to Canada. He spoke about the food that he prepared for the children. The evidence of the father and Mr. Agbedetse highlighted the importance of hair care and the barber shop culture. The mother and each of her witnesses spoke about how the father would cook Jamaican dishes for gatherings and regular family meals. Ms. Lewis spoke about the father attending cultural events with Liam.

87In the video of Liam talking about his haircut, Liam spontaneously shares that he loves curry shrimp, the meal the father cooked for him that evening.

88Within the maternal family, there appears to be anti-Black views. The mother spoke of being concerned when she learned she was pregnant with Keira, because of the “stigma” and “racial profiling” of Jamaican men coming to Canada, getting women pregnant and then leaving. She did not tell her family. What was unclear in her evidence was who held this belief, her family or herself. What is clear, is that the “stigma” the mother referred to was not merely related to becoming pregnant out of marriage with a non-resident of Canada; the mother specifically referred to Jamaican men coming to Canada, suggesting an anti-Black bias, whether it be conscious or unconscious.

89The father spoke of hearing the maternal grandmother speak in racist terms about him. There is evidence that the maternal grandmother exhibited these behaviours in the presence of the children and mother on two occasions.

90A photo of a rag mop leaning against a wall in the mother’s home, with a paper image of the father’s face taped onto the mop head, depicting the rags as his hair, was entered into evidence. The father learned of this photo when he saw it on an iPad that Liam had in his possession.

91The maternal grandmother, Peggy MacDonald, was called as a witness by the father. Ms. MacDonald evaded service of the summons, and an order for substitutional service was made. She was defensive and elusive at times during her evidence in chief.

92Ms. MacDonald testified that she put the father’s face on the mop when she was at the mother’s home with the children. She stated that it was “harmless”; she was showing Keira and Liam what their father would look like with dreadlocks. She stated it was the father who turned it into something “vicious”. It is unclear how long the mop stayed like that. The mother did not address this photo at all in her evidence or in her cross-examination of the maternal grandmother. She did not acknowledge that it was inappropriate, that it demeaned the father in the presence of the children, or that it mocked the father’s and children’s Jamaican culture.

93More concerning, however, was an audio recording that was entered into evidence. There was no objection to its introduction. Courts are reluctant to enter recordings into evidence (surreptitious or otherwise) because they are unreliable and further encourage parents to continue behaviour which, as stated earlier, is detrimental to children. However, I allowed this recording because the maternal grandmother acknowledged that she was aware the father was recording the interaction, and it depicts an interaction in February 2019 between the maternal grandmother and the father that speaks directly, and very clearly, to the issue of the children being exposed to racist language and ideas.

94The father testified that on the day in question, he was returning Liam to the mother’s home after his parenting time. For some time, the father had concerns regarding the maternal grandmother’s alcohol misuse, particularly when she was caring for and driving the children. This was a factor in the deterioration in the parents’ relationship. On this day, the mother was not home, and the maternal grandmother was home with Keira. The father thought the maternal grandmother was intoxicated, so he waited for the mother to come home. As was his (inappropriate) habit, he was taking a recording of the drop off. The maternal grandmother listened to this recording and agreed it was her voice on the recording, as well as the father’s and the children’s voices.

95I am unable to determine whether the maternal grandmother was drunk. However, in this recording, the maternal grandmother is heard asking “what’s going on” when the father is talking with Keira at the front door. The father responds that he is just talking with his daughter, to which the maternal grandmother says, “go ahead, what’s your fing problem”, and then tells him to “go f yourself” and “get the f*** out of here”. The father says he is concerned she is intoxicated. She continues to yell and swear at the father repeatedly.

96A child can be heard crying. Kacean is heard telling Keira to get her shoes. The father also swears at the maternal grandmother, but initially remains calm. The mother arrives, and the father tells Liam he can go inside. Liam says he is scared, but the father reassures him that his mother his home.

97The maternal grandmother then escalates to making numerous highly offensive and appalling comments, some of which were sexual in nature, denigrating the father based on his skin colour and national heritage.

98A child is heard saying “stop, stop, stop”. The father later escalates as well.

99All children are crying.

100When the maternal grandmother is making the offensive comments, the mother raises her voice and says “Mom! Enough!” a few times. In the recording as well, however, the mother says to the father “you see what you’ve created?” She does not acknowledge to the father that she did not approve of the extremely offensive language her mother just used, and particularly that it was in front of the children. She does not first ask what gave rise to the conflict. She also says, “my mom is not my issue” and “my mother has nothing to do with me”.

101The mother was asked in cross-examination what she did with the children after that event. The mother said she could not recall, but generally she said she would speak to the children about how they were feeling, how the situation could have been avoided, and how what happened between the father and maternal grandmother wasn’t right. She did not at all mention that she would speak to the children about the racist language and comments made by the maternal grandmother. She did not mention that she spoke to the maternal grandmother about the impact of her words and actions on the children. She did not mention that she told the maternal grandmother that her comments and views were not welcome in her home and, if the maternal grandmother continued to expose the children to these views or comments, her contact with the children would have to be limited. When the mother cross-examined the maternal grandmother, she didn’t put any questions about the incident to the maternal grandmother.

102The mother’s comment that her mother was not her “issue” is extremely concerning. The mother’s failure to address the racist behaviour of the maternal grandmother, failure to address how it would impact the children, and failure to speak about it with the children, suggests that she is either blind to the negative consequences, or is willfully ignoring it. Either way, this demonstrates she is not able to fully support her children as biracial children.

103The mother is White and is not Jamaican, and because of this alone, the mother is not able to provide the level of connection to culture and heritage that is provided by the father. While she may be aware of appropriate hair care, she did not speak at all about other aspects of Jamaican and Black culture and any actions she has taken to connect the children to that culture. She does not frequently socialize with Black or Jamaican people and so neither do the children when they are in her care. The mother has not had the same life experiences, as a White person, that the father has had, being Black. She is unable to provide the same support and guidance to the children as the father, while the children navigate the challenges they may face being biracial.

104In Pelkey v. Henley, 2022 ONSC 6477, the court considered the advantage to the child in being taught his African American heritage by his father in increasing parenting time. In Kostrinksi v. Nasri, 2022 ONSC 2926 the mother spoke Hebrew and Russian, and the father spoke Farsi. The children lost their ability to speak Farsi post separation due to spending less time with the father and his family. Justice O’Brien stated preserving the children’s connection to a language of their heritage was a factor in favour of additional time with the father and his family. In N.S. v. R.M., 2021 ONSC 4566 the Divisional court agreed that a parent must have “the opportunity to meaningfully immerse” the children in their culture in order to preserve the child’s connection to that culture.

105I find that it is in the children’s best interests that the father’s parenting time is expanded such that he is able to maintain their connection to their Black and Jamaican heritage and provide support to them as they navigate being biracial in a world where bias and racism still exists.

(h) Counseling for the children

106Although it took some time for the arrangements to be made, Keira was in individual counseling and Liam was about to registered for same. It is important that the children continue in counseling for as long as the counselor recommends, taking into consideration the willingness of the children to continue to participate.

107I am also ordering that both parents are entitled to speak with the counselors.

108However, I am not prepared to order reunification counseling as requested by the father. There must be evidence the therapy will be beneficial, and there must be a detailed plan identifying the counselor and process (see: Testani v. Haughton, 2016 ONSC 5827). The father did not provide any of this in his evidence. Keira’s views and preferences regarding her participation are unknown. Further, making such an order is premature. Keira has begun individual counseling, and this, together with the parenting time I am ordering, may result in an improvement of the relationship.

(i) Parenting time order

109The children’s primary residence shall remain with the mother. This has been the status quo for some time, and until trial, the father did not seek anything more than every other weekend and one mid-day evening parenting time.

110Keira’s views and preferences are that she have a relationship with her father. This will not happen if there is no order for her to have parenting time with him. The mother is not expecting Keira to visit with her father, nor is she facilitating the relationship or providing Keira with suggestions as to how to improve the relationship. The father will have regular parenting time with Keira on a graduated schedule as set out in the order below. There are provisions regarding holiday time set out therein. The mother is reminded of her obligation to facilitate and encourage contact with the other parent.

111It is hoped the father will take the opportunity in one of these visits to acknowledge to Keira his own role in the breakdown of his relationship with her.

112The father’s parenting time with Liam shall be increased to include every other weekend Friday to Sunday, and mid-week overnight parenting time on a two-week schedule set out in my order.

113Sharing of holidays shall occur in accordance with the consent order of Justice Piccoli dated February 12, 2020, with minor variations, taking into consideration Keira’s views and preferences.

DECISION MAKING AND COMMUNICATION BETWEEN THE PARENTS

114The parties are unable to communicate civilly and respectfully to one another.

115The father insults the mother and calls her derogatory names in his communications through OFW. He frequently uses sarcasm, swearing, and disrespectful tones. He demands changes in parenting time, does not request them, and is unwilling to engage in any discussions regarding the mother’s requests for slight changes in parenting time.

116The mother states that all her communications through OFW are around parenting. However, the mother, under the guise of advising the father of how the children are feeling about a past visit, will use OFW as a means to criticize events that happen during his parenting time. She uses sarcasm frequently, calls the father derogatory names, swears, and speaks disrespectfully.

117Each parent feeds off the other’s poor behaviour. Neither can restrict their comments to brief and respectful communications. Both blame the other. They cannot refrain from sarcasm and pokes at one another, even when communicating about a change they both agree to.

118Neither parent informs the other about what happens to the children when in their care. The mother did not tell the father when Keira had Covid-19 in early 2022, even though Liam was attending the father’s home. The father did not tell the mother that Liam saw a crime scene in his home. The mother did not tell the father that Keira was in counseling. The father did not tell the mother that he took Liam to a doctor’s appointment. Neither told the other about Liam’s haircuts. The father has explicitly stated that what happens in his home during parenting time is none of the mother’s business. The mother stated that Keira attending counseling was not a “major health decision”. Each parent finds a way to justify not telling the parent about important events in the children’s lives.

119Neither parent does a good job at shielding the children from the parental conflict. The police incident in April of 2022 is but one example of this.

120The father calls police and takes recordings. Both parents have called the Society. Both parents are rigid and cause ongoing conflict about access exchanges when the children are present. The mother has admitted that the children might overhear her speaking to friends about her upset with the father.

121The Ontario Court of Appeal in Kaplanis v. Kaplanis, 2005 ONCA 1625 set out factors to consider when determining the appropriateness of a joint decision-making order:

(a) There must be evidence of historical communication between the parents and appropriate communication between them.

(b) It can’t be ordered in the hope that it will improve their communication.

(c) Just because both parents are fit does not mean that joint custody should be ordered.

(d) The fact that one parent professes an inability to communicate does not preclude an order for joint custody.

(e) No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

(f) The younger the child, the more important communication is.

122Joint decision-making does not require perfect communication between the parents. However, while there are no expectations of perfection, the communication between the parents must have a base level of respect and civility for joint decision-making to be effective and not negatively impact the children.

123I echo the words of Pazaratz J. in Izyuk v. Bilousov, 2011 ONSC 6451, at para. 504:

In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children- particularly children already exposed to the upset of family breakdown- look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

124Both parents contribute to the poor communications between them. Joint decision-making is not possible with this family. It will exacerbate the ongoing conflict, which is not in the children’s bests interests. Neither party sought an order for joint decision-making.

125The father seeks parallel parenting. The father has had periods of time where he has not been involved the children’s lives, either because he was out of the country, or because he and the mother were separated, and the children’s primary residence was with the mother.

126Most recently, he is spending time with Liam every other weekend from Saturday afternoon to Monday at school and one evening per week. The parenting order I am making does not give the father shared parenting of Liam. The father has not been involved with Keira’s life for some time. As Keira continues to age, she will have more agency in making decisions for herself, and the parents will have less of a role to play.

127I find the mother is in the best position to make decisions for the children. She shall have sole decision-making, however, will be required to provide notice to the father about all decisions and give him the opportunity to provide input.

128The father shall have sole decision-making regarding scheduling and taking Liam for haircuts.

DOES THE RESPONDENT STAND IN THE PLACE OF A PARENT TO KACEAN?

129Section 2(2) of the Divorce Act states as follows:

(2) For the purposes of the definition child of the marriage in subsection (1), a child of two spouses or former spouses includes

(a) any child for whom they both stand in the place of parents; and

(b) any child of whom one is the parent and for whom the other stands in the place of a parent.

130The leading case on the definition of parent is the Supreme Court of Canada’s decision in Chartier v. Chartier, 1999 SCC 10, [1999] 1 SCR 242. The court outlines the following principles in the determination as to whether an individual stood in the place of a parent:

(a) The existence of the parental relationship is to be determined as of the time the family was intact.

(b) The court must take into account all relevant factors, viewed objectively.

(c) The views of the child is one factor to be considered.

(d) The Court, at paragraph 39, provides a non-exhaustive list of factors to be considered as follows:

i. Whether the child participates in the extended family in the same way as would a biological child;

ii. Whether the person provides financially for the child (depending on ability to pay);

iii. Whether the person disciplines the child as a parent;

iv. Whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child;

v. The nature or existence of the child’s relationship with the absent biological parent.

(e) Once an individual stands in the place of a parent, they are always in the place of a parent, and the individual’s obligations and rights respecting the child are the same as those relating to a biological child. Even if the relationship deteriorates or even if there is no contact, the obligations as a parent remain.

131The Ontario Court of Appeal recently confirmed the reasoning of Chartier in McGuire v. Bator, 2022 ONCA 431.

132Applying these factors to this matter, I find that the mother does stand in the place of a parent to Kacean.

133Kacean and the father arrived in August 2010, and lived at the mother’s trailer. Kacean stayed approximately two weeks, after which Kacean returned to Jamaica and lived with her paternal grandparents, until summer of 2012. She again, at the end of 2013, returned to Jamaica to live with her paternal grandparents until 2015. During this time, Kacean would visit with her mother, but never lived with her.

134The mother did not maintain contact or a relationship with Kacean when she was not living in Canada.

135Kacean returned to Canada in 2015 and lived with the mother and father until their separation in 2019. The mother testified that, during the reconciliation process, she and the father discussed having Kacean come and live with them.

136While the mother did not maintain a relationship with Kacean prior to her final arrival in Canada, I find that the mother did take on the role of parent once Kacean arrived permanently.

137The mother has close ties to extended family and they gather frequently for family events. All witnesses called by the mother stated that Kacean was accepted and embraced by the mother’s extended family. Kacean called the maternal grandmother “Nan”, and the maternal grandfather “Poppy”, which is the same names used by Keira and Liam. The mother testified that her family welcomed Kacean “with open arms” and included her in the family gatherings. She also testified that the maternal grandmother and Kacean had a “great” relationship and that the maternal grandmother was very close to Kacean. The maternal grandmother testified she accepted Kacean as her grandchild and did not treat her differently than her other grandchildren. Lisa Hodgkinson, the maternal grandfather’s common law spouse, testified that she spent lots of time with Kacean, and the other children, as well as on her own. Ms. Hodgkinson helped Kacean work on her art and supported her in her transition to high school. Lisa-Dawn Brooks also spent time with Kacean.

138Both parties contributed financially to the support of Kacean;

(a) The father testified that the mother financially contributed to the immigration application process. He testified that the mother also sent money to Jamaica for him and Kacean after he returned in 2007.

(b) The father testified that he received the child tax benefit for Kacean.

(c) The father testified that the mother bought birthday presents for Kacean to give, but then he gave the mother money to buy clothes for her.

(d) The mother had Kacean on her benefits from work but took her off after the separation.

139The mother testified that she did not discipline Kacean. On the other hand, she testified that she would tell Kacean to stop certain behaviours, would remind her of what her dad had told her about the behaviour, but never grounded or punished her. She would leave that for the father.

140The father characterized the relationship between Kacean and the mother as a good but identified that the mother responded to Kacean differently than her birth children. He stated the mother favoured Keira, and that she would blame Kacean for the conflict between the two half-siblings. The mother denied this, even when challenged in cross-examination. She stated she needed to discipline Kacean differently than Keira when they fought.

141Although the mother left final disciplining of Kacean to the father, this does not negate the other factors supporting a finding that she was in the place of a parent. Many parents divide discipline responsibilities.

142The mother sponsored the father and Kacean’s immigration to Canada. This was a joint decision of the parties. The father testified that both he and the mother contributed financially to the cost of the application. The father testified the mother sent him money to help him and Kacean financially when he returned to Jamaica in 2007.

143Lisa Hodgkinson testified that her impression was that the mother’s relationship with Kacean was the same as with the other children. She testified that Kacean called the mother Chrissy, but she was clearly one of the children in that home.

144The mother made decisions regarding Kacean’s education and held herself out to school officials as the child’s parent.

(a) In 2012, the mother actively participated in the planning for Kacean’s schooling. She signed the registration form as the child’s “parent/guardian”. The father did not sign this form, nor is his name noted on the form as the mother signing on his behalf. Lisa Hodgkinson, who is a high school teacher, testified that she assisted the mother with the decision of which high school Kacean should attend. She did not testify that she assisted “the parents”. Lisa-Dawn Brooks, the mother’s cousin, testified that the mother “looked after school” for Kacean. Sandra Santos also testified that the mother went to meetings and spoke to teachers and Kacean’s schooling was “a big thing” for her.

(b) In 2016, the mother signed the forms for Kacean’s registration for school, a consent for special education resource teachers, and a consent for speech language therapy for Kacean. She signed these forms as the “parent/guardian” and the father did not sign the form, nor is his name noted on the form as the mother signing on his behalf. Kacean’s educational level for her age was not up to Ontario Curriculum standards when she arrived in Canada.

(c) In 2017, the mother signed consent for the school to discuss Kacean at the Collaborative Team of the Waterloo Catholic District School Board. Again, the mother signed as the “parent/guardian” and the father did not sign the form, nor is his name noted on the form as the mother signing on his behalf.

(d) The father testified that the mother participated in school meetings for Kacean.

(e) The mother testified that she supported Kacean in her schoolwork, and when she saw problems, she would let the father know, but he would disregard it. She felt badly for Kacean, so she stepped in.

(f) In an OFW message dated December 5, 2022, the mother requested a copy of Kacean’s report card from the father.

145The child’s biological mother is Kimberlin Creary. The evidence regarding Ms. Creary’s involvement with Kacean is as follows:

(a) Kacean was in the father’s primary care prior to his coming to Canada. The father and Kacean lived with the paternal grandparents, and three of the father’s siblings.

(b) During the times that Kacean resided in Jamaica when her father was in Canada, Kacean resided with her paternal grandparents.

(c) The father and Ms. Creary testified that Ms. Creary lived a short walk away from the paternal grandparents, and when she resided in Jamaica, Kacean would visit with Ms. Creary whenever Kacean wished.

(d) Once coming to Canada, Kacean only contacted Ms. Creary on the phone a few times a year, although recently she is reaching out more.

(e) Ms. Creary never paid child support to the father, formally or informally.

(f) The mother, father, and Ms. Creary all spoke about a document that Ms. Creary signed, apparently before a judicial/legal officer. The father testified that it was a statement of Ms. Creary giving the mother parental rights. No one produced a copy of it. It is uncertain whether it was a document merely stating that Ms. Creary, as the child’s biological mother, was consenting to the child immigrating to Canada. What it establishes is that Ms. Creary signed a document to facilitate Kacean’s immigration to Canada.

146I find that Kacean had and still has a very limited relationship with her mother. She never lived with her, even when she was in Jamaica and the father was in Canada. In any event, the lack of a relationship with a parent is not a pre-requisite to find that a second adult stands in the place of a parent to a child.

147Sponsorship is an important factor to consider. And while I acknowledge that Kacean was sponsored in 2010, but did not consistently reside in Canada until 2015, the facts support that the mother did take on a parenting role once the parties decided, as a couple, to have Kacean return to Canada in 2015. She testified that she, the father, Keira and Kacean spent time together as a “blended family” with two daughters, when she stayed in Jamaica for a few months following Keira’s birth. Further, she testified that when she sponsored the father and Kacean to come to Canada, the plan was for Kacean, Liam, Keira, the mother, and the father to live together as a family.

148Both parties put significant focus on whether Kacean called the mother “mother”.

(a) The father testified that Kacean sometimes called the mother “Chrissy” but most of the time referred to the mother as “mom”. He testified that to people outside the family, such as friends, she would refer to the mother as “my mom”.

(b) The father and Ms. Creary testified that generally, Kacean refers to Ms. Creary as “Kim”, not “mom”.

(c) The mother testified that she was rarely called “mom” by Kacean, and Kacean would only refer to her as “mom” when she would be speaking with her peers.

(d) The maternal grandmother testified that Kacean called the mother “Chris, Chrissy, and mom”.

149I find the evidence supports that Kacean mostly called the mother “Chrissy”. However, when she was discussing her mom with her friends, she would say “my mom”, which suggests the child held the mother out as her parent to her friends and public.

150I note as well, that the mother referred to herself as “step-parent” to Kacean in her s.35.1 affidavit sworn on May 5, 2020, and updated 35.1 affidavit sworn on January 30, 2023.

151For all the above factors, I find that the mother did stand in the place of a parent to Kacean.

152The mother has not maintained a relationship with Kacean since the parties separated. The mother submitted that the father had not taken steps to foster a relationship between Kacean and the mother post separation as a reason she should not be found to stand in the place of parent. However, the mother has also not taken steps to foster this relationship either. Nevertheless, this is not the legal test for a determination as to whether an individual stands in the place of a parent. The court is to look at the relationship at the time the parties resided together, and as Chartier says, the parent relationship cannot be terminated once established.

153Therefore, the mother had an obligation to pay child support to the father for Kacean, who graduated from high school in June 2022 and has not attended an education program since then. The mother’s obligation to pay support for Kacean, therefore, is from February 2019 to June 2022.

SUPPORT FOR KEIRA AND LIAM AND IMPUTING INCOME

154Liam and Keira have been in the primary care of the mother since the separation. The father is responsible to pay child support. He has not paid support consistently. He owes retroactive child support.

155From the time of separation and at the trial, the father worked for PepsiCo Bottling Group. His Line 150 income from 2017 to 2020 is as follows:

(a) 2017: $63,423.88

(b) 2018: $70,853.00

(c) 2019: $90,120.19

(d) 2020: $79,390.00

156The father testified that his last child support payment was in December 2020.

157On December 10, 2020, the father was in a serious car accident. He has not worked since then, although he testified that he was still an employee at PepsiCo Bottling Group at the time of trial.

158The mother seeks to impute income to the father in the amount of $70,000.00, retroactively, and prospectively.

159Section 19(1)(a) of the Federal Child Support Guidelines, SOR/97-175 permits a court to impute income to a spouse when the spouse is intentionally under-employed or unemployed.

160In Drygala v. Pauli at paras. 26, 38, and 44, the Ontario Court of Appeal set out the following principles regarding imputation of income on the basis of intentional under-employment or unemployment:

(a) There is no need to find a specific intent to evade child support obligation.

(b) There is a duty to seek employment when a parent is healthy.

(c) There must be an evidentiary basis supporting the amount of income to be imputed.

161The father testified that because of the accident, he had a broken femur, which required surgery to insert a rod from his hip to his knee. He was hospitalized until late December 2020 or early January 2021. The father also testified he continues to have trouble with his knee, back, neck, and shoulder. At trial he was still being followed by an orthopedic surgeon and pain clinic, and continued with physiotherapy, aquatherapy, massage therapy, and occupational therapy. He also testified he has psychological symptoms (anxiety, nightmares) and therefore was also seeing a psychologist every two weeks. All the paramedical expenses are paid for by the father’s insurance company.

162The father testified that due to his injury he has no strength in his knee: it “buckles” when he walks, he is unable to put full weight on it, and walks with a cane. He has pain in his knee and hip. He is unable to drive and has relied on friends, Uber, and taxis (the latter two being covered by insurance). During the trial he had to frequently change position from seated to standing. He was a forklift driver at PepsiCo Bottling Group and stood while driving, and therefore could no longer perform the tasks of his position. He testified that his work offered no accommodation to him.

163The mother gave no evidence or submissions as to why she sought to impute an income of $70,000.00 to the father. Perhaps it is based on what she thinks would be a reasonable amount given his historical annual income. However, the father’s evidence is that he could not perform his previous job due to his injuries, so imputing income based on income earned as a forklift driver is not supported by the evidence. The mother, in her cross-examination of the father, established that the father had not asked for modified duties, nor sought re-training. However, the mother did not make any submissions as to what employment she proposed the father should be seeking, and nor did she give any evidence suggesting that the employment he should be seeking would provide an income of $70,000.00. She did not provide an evidentiary basis for the amount she seeks to impute as required by the caselaw.

164The father submitted a letter from his family physician, Dr. Linda Hondubrata, dated July 28, 2022, stating that he was unable to go back to work in any capacity for at least 6 months, and was having ongoing consultations with and orthopedic surgeon, pain clinics, and a psychiatrist. Dr. Hondubrata was not called as a witness, nor was a CV provided. The weight placed on this letter as supporting the father’s inability to work must be tempered by the fact that Dr. Hondubrata was not cross-examined nor were her qualifications before the court.

165The father also submitted the medical records of Dr. Hondubrata, current to June 16, 2021 pursuant to a Notice under the Evidence Act. These records corroborate the father’s evidence of his symptoms and services he was involved with at the time of the records.

166Following the accident, the father’s initial source of income was Employment Insurance, but then this transitioned to income replacement through his auto insurance which is $800.00 every two weeks. He remains on this income replacement.

167In a letter dated January 14, 2021 to the father, Co-Operators General Insurance Company outlined the father’s entitlement to the Income Replacement Benefit. Based on forms completed by Dr. Linda Hondubrata dated January 5, 2021, he was assessed as suffering from “a substantial inability to perform [his] pre-accident employment duties”. He was entitled to 70% of his gross weekly pre-accident income, up to a maximum of $400.00 per week. He was therefore entitled to $400.00 per week “for as long as [he is] entitled to the benefit.”

168The father continues to receive the Income Replacement Benefit, indicating that he continues to be assessed as being unable to work. Based on this, and his evidence regarding his current physical symptoms, I find he is he is unable to work and is not intentionally unemployed.

169The father’s income for child support purposes for the years 2021 to current is $400.00 every two months, which would equate to $10,400 per annum. Even accounting for non-taxable income gross up, the father’s child support obligation pursuant to the guidelines is therefore $0.

170The father, however, is ordered to continue to provide a letter from his treating doctor bi-annually, confirming that he is unable to work, for as long as he continues to be off work.

SUPPORT ARREARS CALCULATIONS

171The father’s notices of assessment for the years 2019, 2020, and 2021 were filed as exhibits.

172His 2021 line 150 income was $17,166.00 which was a combination of employment insurance and income replacement benefits.

173The father testified that he was overpaid unemployment insurance benefits as they were to cease when he became eligible for income replacement benefits.

174He became eligible for income replacement benefits on December 17, 2020. His first payment of employment insurance, which was $507.00 weekly, was from the week of December 13, 2020. He was therefore only entitled to 1 week of employment insurance benefits.

175No evidence was provided regarding the total amount of the overpayment. The only evidence provided was an incomplete print out of a screenshot of a chart from the father’s Service Canada account showing employment insurance payments made weekly from December 13, 2020, to the week of February 28, 2021.

176Using this evidence, the father was overpaid for 11 weeks, totaling $5,577.00. The father is making $40 monthly payments to repay this balance. This amount shall be deducted from his 2021 income, with a final 2021 income for support purposes of $11,589.00.

177The mother works as a law clerk. Her annual income at the time of trial was $48,000.00. The father submitted DivorceMate calculations of child support attributing slightly higher income to the mother in previous years. However, no evidence regarding her historical income was offered, and the mother was not cross-examined on this issue. I have no evidence other than her annual income as a law clerk is $48,000.00, and that is the income used for calculations.

178The parties separated on January 25, 2019. Child support obligations would commence on February 1, 2019.

179The father commenced voluntary child support payments via e-transfer in the amount of $660.00 in April 2019. The mother testified the father paid $660.00 per month for 4 months in 2019. The father testified he paid $660.00 monthly via e-transfer but admitted he stopped the monthly payments for “a couple of months” in 2019 when the mother withheld the children. He acknowledged in his evidence that he should have paid.

180Neither party provided any proof of the e-transfers. Both had limited recall. Both had motivation to recall a number of payments more favourable to them. However, the father’s evidence overall was more compelling, as throughout the trial he often admitted where he was in error, or facts that might be complementary or favourable to the mother. I find that the father did not make payments for 4 months in 2019, one of which was February 2019, the other three when he suspended payment as admitted. I find that the father paid $4,620.00 (7 months at $660.00) in 2019.

181The evidence of both parties is that the father began paying $894.00 per month in child support but neither could recall specifically when. The father’s child support calculations suggested he started to pay this amount in the middle of 2020. I find that the father paid $660.00 per month for 6 months of 2020 ($3960.00) and $894.00 per month for 6 months of 2020 ($5634.00) for a total of $9,324.00.

182The father also advised that his last child support payment was made in December 2020.

183Neither parent provided evidence of any retroactive special expenses owed by the other.

184Chart of the support obligations is as set out below:

YEAR	FATHER’S INCOME	MOTHER’S INCOME	SET OFF CHILD SUPPORT	TOTAL SUPPORT OWED	SUPPORT PAID	BALANCE OWING
2019	$90,120.19	$48,000.00	$907 father to mother	11 months at $907 =$9977 father owes mother	$4620.00	$5357.00 father owes mother
2020	$79,390.00	$48,000.00	$757 father to mother	12 months at $757 = $9084 father owes mother	$9324.00	$240.00 overpayment by father – mother owes father
2021	$11,589.00	$48,000.00	$445 mother to father	12 months at $445 = $5340 mother owes father	$0	$5340.00 mother owes father
2022	$10,400.00 (based on $400 bi-weekly payments x 26 weeks)	$48,000.00	$445 mother to father (until June 2022 when Kacean graduates)	6 months at $445 = $2670 mother owes father.	$0	$2670.00 mother owes father
2023	$10,400.00	$48,000.00	No support payable

185In total, the father owes the mother arrears of child support in the amount of $5,357.00. The mother owes the father arrears of child support in the amount of $8,250.00. Therefore, the final balance owing from the mother to the father is $2,893.00.

186On May 14, 2020, the mother was ordered to pay costs to the father in the amount of $1,500.00.

187The mother owes the father a total of $4,393.00.

CHANGE OF NAME

188As stated earlier, the February 12, 2020 consent order included a provision that Liam’s name was to be changed to “Liam Luckhardt-Cameron”.

189If it has not yet happened, the mother shall immediately sign all forms required to enable the child’s surname to be changed from “Luckhardt” to “Luckhardt-Cameron”.

MATERNAL GRANDMOTHER

190The father seeks an order that the maternal grandmother not be allowed to be the sole caregiver to the children or to drive the children at any time.

191I am concerned about the maternal grandmother’s behaviours and comments in the presence of the children and have included provisions regarding exposing the children to inappropriate and anti-Black comments and the sobriety of any individual who is driving the children.

ORDER

1. The primary residence of the children, Keira Luckhardt-Cameron, born March 7, 2008, and Liam Luckhardt, born February 14, 2014, shall be with the Respondent Mother.

2. Commencing October 6, 2023, the regular parenting time schedule for the child Liam Luckhardt shall be in accordance with the following schedule: a. Week 1: i. Father Friday after school to Sunday at 5:00 p.m. when the father will deliver the child to the mother’s home. ii. Mother Sunday at 5:00 p.m. to Wednesday after school. iii. Father Wednesday after school to Friday at school. b. Week 2 i. Mother Friday at school to Wednesday after school. ii. Father Wednesday after school to Thursday at school. iii. Mother Thursday at school to Friday after school. c. Such other times as the parents may agree.

3. The father shall have parenting time with Keira, as follows: a. Before October 31, 2023, two visits in the community, at a time and place agreed upon by Keira and the father, for a minimum of 30 minutes. Liam shall not be present for these visits. b. For the month of November, each Wednesday at the father’s home or wherever the father and Liam are spending time, from 5:00 p.m. to 7:00 p.m. The mother shall be responsible for Keira’s transportation to the visit and the father shall be responsible for Keira’s transportation to the mother’s home at the end of the visit. c. For the month of December and ongoing, parenting time outlined in paragraph 3(b), above, and every other weekend from Saturday at 5:00 p.m. to Sunday at 5:00 p.m. to coincide with the father’s parenting time with Liam. d. Such other parenting time as arranged between the father and Keira.

4. The parties shall share holiday parenting time as follows, which time shall supersede the regular parenting schedule: a. The children shall spend time with the father each Father’s Day from 10:00 a.m. to 6:30 p.00 p.m. and with the mother each Mother’s Day from 10:00 a.m. to 6:30 p.m. regardless of the regular schedule. b. Each parent shall have two consecutive weeks each summer with the father having the first option in even numbered years and the mother having the first option in even numbered years, with notice to be provided by May 1 each year. c. Commencing 2024, the children shall spend time with the father each Thanksgiving weekend from Sunday at 4:00 p.m. to Monday at 7:00 p.m. in even numbered years, and from Friday after school to Sunday at 4:00 p.m. in odd numbered years. d. Each Easter, the children shall be with the mother from after school on Thursday until Sunday at 12:00 p.m. and with the father from Sunday at 12:00 p.m. to school on Tuesday. e. Each Christmas, the children shall spend time with the father in even numbered years from December 24 at 4:00 p.m. until December 25 at 12:00 p.m. and in odd numbered years from December 25 at 12:00 p.m. until December 26 at 4:00 p.m. f. Except as noted in paragraph 4(e), the parents shall share equally the school Winter Break and March Break. g. The holiday time for Keira shall be subject to Keira’s views and preferences.

5. The parents shall not schedule activities or events for the children during the other parent’s parenting time without the consent of the other.

6. The parents shall not permit any individual who is intoxicated (through alcohol or drugs) to care for or drive with the children.

7. The parents shall not disparage, demean, or ridicule the other parent in the presence of the children or in situations where the children might reasonably be able to overhear, nor shall they permit any other individual to do so.

8. The mother shall not permit any individual to make anti-Black or biased statements regarding the father’s heritage in the presence of the children or in situations where the children might reasonably be able to overhear.

9. The mother shall have sole decision-making for both children for all decisions except the father shall have sole decision-making regarding the child Liam’s haircuts.

10. For non-emergency decisions, the mother shall provide the father with reasonable advance notice of the decision to be made, and the father shall have 24 hours to respond and provide his input. The mother shall take the father’s input into consideration when making the decision.

11. Both parents have the right to make emergency medical decisions for a child. In the event of an while a child is in the care of the father, the father shall attempt to reach the other parent before making the decision. Each parent shall advise the other of emergency decisions made regarding the children as soon as possible following the decision being made.

12. Each parent shall be responsible for day-to-day decision making when the children are in their care.

13. The parents shall continue to utilize Our Family Wizard or other communication app for all non-emergency communications. If a “tone check” setting is available on the app for no extra charge, the parents shall use this setting.

14. The mother shall provide the father with the names and contact information for all professionals (e.g., doctor, dentist, counselor) involved with the children immediately upon engaging the professional.

15. The father shall have direct access to third party information regarding the children’s health, education, counseling, without any requirement of prior authorization from the mother, and where any such authorization is required, it shall not be unreasonably withheld.

16. Each parent shall attend Community Justice Initiatives Conflict Coaching and shall immediately register.

17. If not completed already, the mother shall comply with the order of Piccoli, J. dated February 12, 2020, and shall forthwith complete and sign all documentation required to change the name of the child Liam Luckhardt to Liam Luckhardt-Cameron. Following the change, the children’s names shall not be changed without the consent of the other parent.

18. Arrears of child support payable by the mother to the father shall be fixed at $2,893.00 as of today’s date, payable in installments of $200.00 on the first of each month commencing November 1, 2023.

19. The mother shall comply with the costs order of Walters, J. dated May 14, 2020, wherein she was ordered to pay costs to the father in amount of $1,500.00 forthwith.

20. There shall be no ongoing child support payable.

21. The parties shall share special expenses for the children proportionate to their incomes; the father is responsible for 18% and the mother 82%. Neither party is responsible for extracurricular special expenses if their written consent is not provided in advance of the expense being incurred.

22. For as long as the father is not working, he shall provide to the mother updating medical evidence supporting his assertion that he is unable to work due to medical reasons no later than January 1 and July 1 each year.

23. Each parent shall provide to the other their income tax return and notice of assessment no later than July 1 each year.

24. All other claims are dismissed.

COSTS

192The parties are to engage in meaningful discussions regarding costs. I remind the parties that each had divided success in this trial. If they are unable to resolve the issue, the parties shall serve and file submissions, no longer than three pages, double spaced, with case law hyperlinked, plus a bill of costs and any offer to settle by November 1, 2023. Submissions shall be filed through the online portal as well as emailed to Kitchener.SCJJA@ontario.ca noting the portal confirmation number. Extensions will not be granted. If submissions are not received, it will be presumed that costs have been resolved.

Tweedie, J.