COURT FILE NO.: FC-20-0047 DATE: 2023/10/05 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ADRIENNE PATRICIA JOYCE SMITH Applicant – and – NATHAN ROBERT RICHEY Respondent
Counsel: Peter Sammon, for the Applicant Self-represented
HEARD: September 18, 19 and 20, 2023, at Pembroke
REASONS FOR DECISION
AUDET J.
[1] The issues for this trial are the parenting of the parties’ two children (aged 4 and 7), and child support adjustments.
[2] The mother seeks sole decision-making responsibility and primary care of the children, as well as supervised parenting time for the father. She alleges that she and the children have endured verbal, mental and physical abuse at the hands of the father. She states that the father suffers from serious mental health issues, including addictive behaviors and depression. In particular, she alleges that the father has an untreated addiction to pornography, as well as a gaming addiction.
[3] The father denies those allegations. While he is no longer seeking an equal time-sharing arrangement for the children, he seeks an order for joint decision-making responsibility as well as unsupervised parenting time, starting with three hours each weekend and gradually increasing to include every other weekend with a three-hour mid-week visit.
[4] For the reasons that follow, I am of the view that the only genuine issue for trial in this case was whether the father’s parenting time should continue to be supervised for the foreseeable future and, if not, what it should look like. I find that this case is one of those exceptional ones where supervised parenting time must be imposed for the foreseeable future, until such time as the father’s mental health improves substantially, and he has taken steps to meaningfully address the various safety concerns which will be discussed in detail below.
[5] There is absolutely no question in my mind that this case is not one where joint decision-making responsibility can be awarded. Indeed, I am of the view that it is necessary at this time to incorporate into a Family Court Order the current no-contact undertaking in place as part of the father’s release conditions in relation to a criminal charge he is currently facing for alleged criminal harassment of the mother. In those circumstances, it is undisputable that the children’s best interests require that the mother be the sole-decision maker for them, with an obligation on her part to keep the father informed of important events taking place in their lives.
[6] I have also set ongoing child support and child support arrears which, given the fact that the parties’ sole sources of income is employment income, was relatively straight forward.
BACKGROUND
[7] The parties started living together in July 2015, but never married. They have two children together; B.R. (now 7) and C.R. (now 4). The mother also has two children from previous relationships; J.S. (now 18) and A.S. (now 13). No orders are being sought by either party in this proceeding in relation to the mother’s two older children.
[8] The parties are both employed by the Canadian Armed Forces and are currently based in Petawawa. The parties separated on October 28, 2019, when the mother left the family home with all four children and moved in with her parents (the children’s maternal grandparents), where she continues to reside to this day. C. and B. have remained in the mother’s primary care since the parties’ separation and have only had supervised parenting time with their father, once per week, as well as some virtual parenting time.
PARENTING
Legal Framework
[9] Any decision relating to a child must be made having regard, exclusively, to their best interests. When considering a child’s best interests, the court is required by virtue of s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“the CLRA”) to consider the following legal principles:
Best interests of the child
24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.
Primary consideration
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.
Factors
(3) Factors related to the circumstances of a child include,
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.
Factors relating to family violence
(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and
(h) any other relevant factor.
Discussion on Parenting
[10] It is clear, based on the evidence before me, that the mother has always been the children’s primary caregiver while the parties were together. While the father was present in the home and most certainly contributed in some ways to the children’s care and household duties, the evidence before me supports a finding that his contributions were limited due to his depressive state and videogaming pursuits. I accept that the vast majority of the childcare and household duties fell upon the mother during the parties’ relationship, and that she was the one primarily responsible for ensuring that the children’s needs were being met.
[11] The mother testified that during the parties’ brief relationship (they were only together for four years), the father spent much of his time sleeping or playing videogames until the wee hours of the night. He would easily get upset and angry, and everybody had to walk on eggshells around him. The mother also testified that on many occasions, he yelled at her two older children, rough-handling them, and generally showing very poor parenting skills, including in terms of discipline. The mother testified having witnessed the father pull A. (10 at the time) up the stairs, hitting him repeatedly while he was curled up in a ball, on the basis that he wanted to “toughen him up”, with little B. in tow following his father’s lead by hitting his older brother as well.
[12] While the father denies that there was any family violence in the home, the evidence before me fully supports the conclusion that there was. The father was reported to have injured himself seriously (broken hand) after hitting the parties’ car in anger, and then a wall (during or after a couple’s therapy session). After this particular incident, a report was made by the therapist to the Family & Children’s Services of Renfrew County (“FCS”), who investigated. The mother explained that at that time she denied that the father was abusive and insisted this was only an isolated incident, because she was afraid that the children would be taken away from her. As a result, the file was closed.
[13] The mother testified that during the parties’ relationship, the father used physical force to compel J. to attend school when she was refusing to go (due to mental health issues), and that he would often yell at her and at A. J. (who was later diagnosed with schizophrenia and anxiety) pled with her mother to never leave her alone with her stepfather. It is not disputed that after the parties’ separated, A. and J. (who were then 9 and 13) steadfastly refused to have any contact with their stepfather, or to maintain any form of relationship with him. They have not seen him since.
[14] The mother explained that she made the final decision to separate on October 28, 2019, when she discovered by looking at the browsing history on the father’s computer that he had been watching pornography in the bathroom the previous day while C., who was only a year old at the time, was in his care (and in the bathroom with him). The mother testified that she had also previously found him masturbating in his bed while C. was beside him in the bed. It is clear that the father’s ongoing use of pornography was a constant source of conflict between the parties, and the mother indicated during her testimony that this latest event involving C., coupled with all the above, was the last drop for her. She left the home with the four children on that day and moved into her parents’ home in Petawawa.
[15] Following the mother’s departure from the family home, she reported her concerns to the FCS, who investigated once again. In the context of that investigation, both parents and the older children were interviewed and the father was given an equal opportunity to present his version of the various events which were under investigation. In its closing letter dated October 1, 2020, the CFS concluded:
1.1.F Physical Force and or maltreatment with a risk that the child may be harmed by a prime caregiver. This allegation was made against Nathan Richey the biological father of B. and C. It was verified with regard to concerns of corporal punishment being used and Nathan grabbing B. by the ear and pulling him upstairs. Further that while J. was having a panic attack it was reported Nathan grabbed her by the arm and dragged her up the stairs and locked her in the bathroom while she was experiencing this panic attack as self-described.
1.3.K Abusive Sexual Activity Questionable Sexual Activity. It was verified that Nathan was observing pornography and self-stimulating /masturbating in the presence of his infant daughter C. Nathan confirmed this occurred however, he cited his daughter was asleep at the time. Nathan has agreed for this not to occur again.
1.3.J Abusive sexual activity risk that the child is likely to be sexually harmed. This allegation was not verified. There was no indication of engaging the child in the activity. It is concerning that Nathan observes pornography which was reported to be a detriment to the intimate relationship between the two parents. Further, that Nathan acknowledged he used pornography and self-stimulation/masturbation as a means of venting emotions and negative feelings. He has been encouraged to see other sources to vent and address his emotions.
3.1.C Caregiver Causes and or Caregiver's response to child's emotional harm or risk of emotional harm. Risk that the child is likely to be emotionally harmed resulting from the child's exposure to ongoing post separation caregiver conflict was verified for both parents with each of the four children. This allegation has been verified for both parents.
It is noted that since the separation both J. and A. have indicated they did not want to visit with Nathan Richey who had been acting in a parental role for several years.
Throughout the investigation and during period of the ongoing file being open concerns of Nathan's mental health persisted. This was in part manifested in the state of the home . Prior to the children attending Nathan's home it would be well advised that the home be observed to be in a good state of hygiene and organization to ensure the safety of the children should they visit there in the future.
I have recommended that you Ms. Smith engage with a program such as the Pattern Changing Program with Bernadette McCann House (613) 732-3131. Also to explore addressing the domestic conflict/power and control issues presented .
With the initial safety issues being addressed and an interim court order stipulating supervised visits and that the visits are occurring at your home with you and your parent(s) supervising the visits the safety risks have been mitigated. Therefore, as discussed your file with this agency will be closed . (my emphasis)
[16] The mother initiated this legal proceeding in February 2020, and further to a without prejudice agreement between the parties’ counsel, the father began having supervised parenting time with the children once per week, at a supervised access facility. When the pandemic started, and the supervised access center closed temporarily, the maternal grandparents agreed to supervise the father’s parenting time in their own home.
[17] On July 17, 2020, in the context of a case conference, Fraser J. made an interim order granting the father parenting time with the children every week on Sundays, from 9 a.m. to 11 a.m., at the home of the maternal grandparents, as well as one virtual visit (via Facetime) every Wednesday. She also ordered the father to pay child support in the amount of $1,080 per month, starting on August 1, 2020, and granted leave to the parties to bring a contested motion on parenting.
[18] That motion was heard by Justice James on December 15, 2020. In his decision released on December 22, 2020, Justice James maintained the status quo as it existed at the time, requiring that the father’s parenting time continue to be supervised by the maternal grandparents, in their home, once per week.
[19] The maternal grandfather testified in these proceedings. I found him to be a very credible witness. He explained that throughout the (roughly) two years that he supervised the father’s parenting time with the children, the father was frequently confrontational with him and his wife during his visits, in the children’s presence, and he was subjected to significant verbal abuse from him (verbally and in writing).
[20] In December 2020, due to the father’s aggressive behavior towards the mother, her counsel advised the father that he was no longer allowed to communicate with her other than through the maternal grandfather or the mother’s counsel. As a result, the maternal grandfather became the main point of communication between the parents.
[21] It is important to note that, from December 2020 until the month of March 2023, the father respected the mother’s wish that he not communicate with her directly, and the father communicated exclusively with the maternal grandfather or the mother’s lawyer.
[22] The maternal grandfather explained that from the very beginning, the father was “either at his feet or at his throat”. The father would usually first attempt to be civil in his written or verbal communications, but if he did not get what he wanted, his requests would turn into rude demands. If his demands were simply ignored by the maternal grandfather, then the father would follow with hateful, vitriolic and abusive attacks.
[23] One such communication was adduced during this trial to illustrate how the father would behave towards the maternal grandparents when he did not get his way. The text message in question was sent by the father to the grandfather on July 13, 2022, and included the following:
This idea about not dealing with my anger is bullshit. […] The bullshit about B.s first day to of school was so untrue that I want to vomit, that's how disgusting you people are to me. […] God I wish I was actualy [sic] aggressive towards you people, you fuckin need to be checked you arrogant pieces of shit. […] I haven't given a flying fuck about Adrienne since she said no to letting the kids stay with me that first Christmas. I couldn't care less if she died tomorrow, I wouldn't even fuckin bat an eye at this point, because you are all fucking scum.
[24] It is important to note that this message was sent by the father three years after the parties separated, and at a time when it would have been expected that the animosity and anger between the parties and the mother’s family would have somewhat abated, but it had not. Indeed, the evidence before me shows that the father’s anger and abusive behaviors have not changed over time. If anything, they have become worse as of late.
[25] On or about March 2023, the father was found to have harassed the mother in the workplace for having sent a series of emails to her at work, all of which he had recalled shortly after having sent them. After an investigation was conducted, an internal order was made by the Military that the father was to cease direct contact with the mother at work. In a letter to the mother dated March 8, 2023, Lieutenant Colonel Mills, Commanding Officer, wrote:
I conclude that you have been the victim of harassment in the workplace. This has been reported through the Harassment Complaint Tracking System under file number MH021778.
Findings of harassment are a very serious matter, and all measures will be taken to ensure that this type of situation does not reoccur. As per your recommended resolution, the order for Cpl Richey to cease direct contact with you in the workplace will be upheld.
[26] During his testimony, the father indicated that he had filed a grievance of the Commanding Officer’s findings, which is currently ongoing. He stated that from his point of view, the events which led to the mother’s workplace complaint were simply a misunderstanding. He explained that he had sent the first email to the mother simply wanting to reconnect with her in an attempt to try and resolve this litigation. When he did not receive a delivery receipt, which he had set his email system to automatically generate, the father recalled his email and tried again. After trying two or three more times with the same result, the father stopped writing to the mother.
[27] While the father’s explanation is reasonable, it is also quite understandable that the mother would have perceived this series of recalled emails as harassment, particularly since the father knew very well that she did not want any direct communications with him, and since the parties had always communicated through counsel or the maternal grandfather for more than two years.
[28] In June 2023, the father decided to put his home up for sale. Since there was still many personal items and some furniture belonging to the mother in the home (which used to be the parties’ family home), the father contacted the maternal grandfather asking him to “tell the mother to come pick up her shit, otherwise it will be left in the curb”.
[29] The mother attended the father’s home with the maternal grandfather to retrieve her belongings shortly thereafter. Both testified that as soon as they arrived, the father started to aggressively ask all sorts of questions directly to the mother. After the mother ignored him and the grandfather interposed himself between them, attempting to provide answers to his questions, the father became more agitated and began yelling to them that he was asking questions to the mother, not the grandfather, and demanding that she answer his questions. To avoid further conflict, the mother and her father quickly left the property, leaving much of her belongings behind.
[30] In July 2023, the mother and maternal grandparents went on vacation with the children to Nova Scotia. This was their first real vacation since the beginning of the pandemic, and they were all very much looking forward to this. Unfortunately, and as will be discussed later in these reasons, the father missed his Sunday visit on the weekend immediately preceding the family’s departure to Nova Scotia. During the car drive to Nova Scotia, the maternal grandfather began receiving aggressive email messages from the father asking to speak to the children by videoconference. Despite the grandfather’s requests that the father stop communicating with him while they were trying to enjoy their vacation, the father would have none of it, and continued to demand to speak to the children.
[31] Then, while the mother was still in Nova Scotia on vacation, the father began sending her emails expressing the wish to get back together with her. Despite being told, once again, by the maternal grandfather to stop harassing them during their vacation, the father kept writing lengthy – and quite disturbing – emails to the mother. In those emails, many of which began with “Hey beautiful!”, the father expresses regret for his past behavior, vouches to make important changes in his life and apologizes profusely for what he had done to the mother, pleading with her to provide him with an answer to his messages.
[32] Given that the parties had been separated for almost four years, that they had not communicated directly since at least December 2020, and in light of the recent finding of workplace harassment against the father, the content of the father’s communications to the mother was not only extremely bizarre, but also quite alarming. In those emails, the father reminisces about the past, discusses his daily activities, asks how the mother’s day went, and essentially engages in what would otherwise be perceived as a normal conversation between two spouses who have been discussing reconciliation for months.
[33] In those communications, the father writes things such as:
If you come over and talk with me, you may not like what I have to say BUT I will not point any fingers at you. I really want to talk to you about my thoughts and feelings during our relationship, which is why I acted the way I did. There are some really embarrassing things I have to admit about sex n stuff too.
IF YOU ARE GOING TO READ ANYTHING READ THIS: I'm sorry. The way you felt about my porn habit and that it destroyed our relationship, it must be along the lines of how I feel right now knowing you're having sex with that dude.
I still have your ring, and what I mean by telling you that is that I promised you and the kids I would devote my life to you and I will never forget that, maybe J. wouldn't be happy and C. wouldn't understand but I have a feeling that B. would be extremely happy if we tried again.
I am a man, you brought me to my knees to grovel for you to come back but remember when I charged into the cdu and yelled at the staff for kicking you out, I would be your man. And I've got ideas for the future.
So, seriously, I asked how your day was, I wanna know. Let's catch up.
Anyways, I love your beautiful face. And butt. Ah memories. Goodnight.
[34] Then, after the mother ignored all of his emails, on July 12 the father wrote to her: “yeah fuck you”.
[35] Upon returning from vacation, the mother filed a complaint with the police, and the father was charged with criminal harassment (under s. 372(3) of the Criminal Code). As part of his release conditions, a no-contact order was made on July 18, 2023, preventing the father from communicating directly or indirectly with the mother or the maternal grandparents, except through FCS or legal counsel regarding the children.
My Conclusions on Parenting
[36] I find as a fact, based on all the evidence before me, that the parties’ relationship was very conflictual, and filled with verbal and psychological abuse perpetrated by the father against the mother and the children. I also find that on some occasions, the father was physically abusive towards A., J. and B. It is easy to conclude that the father was abusive towards the mother when one considers the father’s pattern of ongoing abuse following the parties’ separation, his very offensive and frequently violent communications (verbal and written), and his behavior towards the maternal grandparents during the many visits that they supervised.
[37] The evidence above also makes it apparent that the father suffers from significant mental health issues. This conclusion is based not only on his overall behavior before and after the parties’ separation – not the least of which includes his very disturbing July 2023 emails to the mother, but also on FCS’s conclusions following its investigation in 2020, and the father’s own admissions in that regard in his communications and during his testimony.
[38] During this trial, the father acknowledged that he suffers from and had been diagnosed with depression, and that he was hospitalized in 2020 for a few days as a result of a mental health breakdown. The father also acknowledged in his July 2023 emails to the mother many of the behaviors which form the basis of her position that the father should not have unsupervised parenting time with the children. More specifically, the following statements by the father in his July 2023 emails support the mother’s allegation that the father has anger management and control issues, and that he has some form of dependence on pornography and gaming:
I really want to talk to you about my thoughts and feelings during our relationship, which is why I acted the way I did. There are some really embarrassing things I have to admit about sex n stuff too.
IF YOU ARE GOING TO READ ANYTHING READ THIS: I'm sorry. The way you felt about my porn habit and that it destroyed our relationship, it must be along the lines of how I feel right now knowing you’re having sex with that dude.
I swear, there will be no porn again if you give me another chance. I will take the xbox and the laptop and toss em into the sink and we can drown en and then burn em in the backyard.
… but the extreme jealousy and this feeling in my chest, gut and forehead just from thinking about you and that fuckin picture ... why didn't you take selfies of me and you together like that? At least, I know you didn't display me as your Facebook picture, my fuckin jealousy.
… maybe J. wouldn't be happy and C. wouldn't understand but I have a feeling that B. would be extremely happy if we tried again. I don't know about A., probably not.
I have been seriously depressed for the years since our separation, and mostly frustrated because I had no control or influence with you or the children, Last week when I saw your picture I was able to produce enough motivation to get up and work out again, the weights destroyed me, it was great.
I made Justin laugh today because I told him how fuckin bored sick I am of video games. Seriously, I don't even want to play 'en anymore it's like a chore now.
[39] There is no question in my mind that some of the father’s behaviors may also be symptoms or consequences of his depressive state. It is important to note that despite his mental health having been at the forefront of this litigation from the very beginning, the father has not provided any recent expert or medical report during this trial confirming the current state of his mental health. Indeed, the father confirmed that he is not currently followed by a psychiatrist or a psychologist (although he has in the past), and that he has not seen one for several years.
[40] Most concerning of all is the fact that this summer, the father chose to stop taking the medication he was prescribed for his depression (Venlafaxine (Effexor) and Wellbutrin) that he had been taking for the past seven years. He admittedly did so without seeking medical advice, and in my view without a clear understanding – or insight – as to the impact this would have on his mental health. In one of his July 2023 communications to the mother, he said to her: “I got some serious headaches and brain fog going today lol. So I decided, starting yesterday, that I would come off the antidepressants. The side effects for that can be pretty bad but by tomorrow I think I'll be over the hump .” (my emphasis)
[41] Both the mother and the maternal grandfather testified as to their observations of the father’s home on the day that they attended in June 2023 to retrieve the mother’s belongings. They stated that the home was in very poor condition, unkept, messy and smelling strongly of cat excrements and urine. The mother’s oak dinning set and couch were so damaged that she decided to leave them there. They also remarked that the home was in a state of complete disrepair, the yard was unkept, and that the lawn had obviously not been cut for a very long time.
[42] This had also been observed by the child protection worker who completed an investigation in 2020, and he noted that this was an indicator of the father’s poor mental health. While the father adduced evidence confirming that, at times, he was able to properly maintain his home, as of June 2023, it appears that any gains he may have made in that regard had been lost.
[43] While the father tried to minimize any concerns this Court might have in relation to his ability to maintain his home, during his testimony he acknowledged that the current state of disrepair of his home has resulted in all his efforts to sell it being unsuccessful.
[44] Finally, it is concerning that the father recently missed a Sunday visit with the children (the visit immediately preceding the mother and children’s departure for Nova Scotia in July 2023), because he attended for his visit on the Monday instead of the Sunday. The father testified that on the day of his Sunday visit he believed it was Friday, and then when he actually attended the visit on the Monday, he thought it was Sunday. When the father was able to speak with the children on the following Wednesday, via Facetime (while the children were in Nova Scotia), the father admittedly cried for most of the hour-long call because he was so sad to have missed his visit, oblivious to how uncomfortable this was for the children.
[45] While it is readily apparent that the father truly loves his children, and that he genuinely wants to be part of their life and to have a more meaningful relationship with them, all of the above concerns raise significant pause as to whether the father should, at this time, have unsupervised parenting time with them.
[46] The father testified that there were no concerns whatsoever raised by any of the supervisors who supervised his visits with the children at the FCS supervised access center, from October 2022 to the present. It is to be noted that during his testimony, the father pointed out that all of the supervisors’ observation notes from his supervised visits had been uploaded on CaseLines. When I explained to him that I could not possibly read all of the hundreds of pages of handwritten notes produced and asked that he point me to the best ones illustrating his position, he said that it would take him too much time going through them again for this purpose. Ultimately, none were entered into evidence in this trial.
[47] I do note, however, that the mother did not adduce any of those notes either to support her position that the father has very poor parenting skills. From that, I conclude that none of the notes would support the mother’s position that the concerns raised about the father’s parenting skills would prevent the Court from granting the father some unsupervised parenting time based on this one concern.
[48] Nonetheless, during his testimony the maternal grandfather shared his overall observations of the father’s parenting time with the children during the lengthy period that he supervised them. Generally, and throughout the two years he supervised, he saw a lack of engagement by the father with the children. According to him, the father did not appear to understand how to play with his children and would mostly follow them around and watch them play by themselves. He rarely brought toys or games with which he could engage the children in play with him (other than his cell phone), and on the rare occasions he played with one of them, he would completely ignore the other leaving it to the grandparents to supervise the other child. The maternal grandfather reported having observed poor parenting skills on the father’s part, including an inability to appropriately respond to the children’s physical and emotional needs when necessary.
[49] While I found that the father’s parents and step-mother, all of whom testified on his behalf during this trial, were all well-meaning, honest and credible individuals, it is undisputed that they had very limited contact with the family while the parties were still together, mainly due to the distance between them, and that they have had almost no contact with the children since the parties separated four years ago. More particularly, they have never observed the father parenting the children on his own, without the mother or a supervisor being present. Their testimony with regard to the father’s parenting skills and involvement with the children prior to the parties’ separation, therefore, was not convincing.
[50] Moreover, these witnesses readily admitted that they were not aware of the 2020 investigation by the FCS, of the nature of the concerns raised by the FCS, or of its ultimate conclusions. They were also unaware that the father was found to have harassed the mother in the workplace or that the father was currently facing criminal charges, and none of them had been made privy to the very abusive communications sent by the father to the mother and to her parents. More importantly, these witnesses had very limited knowledge of the father’s mental health challenges, if any, and all of them were surprised to learn that the father had been suffering from depression since well before the parties’ separation and that he had been taking anti-depressants for the past seven years. Therefore, none of them was aware that the father had stopped taking his medication recently.
[51] I am far from certain that the evidence before me in relation to the father’s parenting skills, in and of itself and in the absence of other, more serious concerns, would be enough to justify long-term supervision of his parenting time. In my view, if this was the only concern, some unsupervised parenting time could still be granted, in the community for example.
[52] Based on all the evidence before me, however, there are many other serious concerns which make it impossible for the Court to consider lifting the requirement that the father’s parenting time be supervised at this time. The most important of these concerns are the current state of the father’s mental health, his anger management and control issues, his abusive behavior towards the mother and the maternal grandparents, which is ongoing, and the father’s past abusive behavior towards the mother’s older children.
[53] I concur with the submission of counsel for the mother that at this moment, the father has nothing to lose. He is in the process of losing his home, he is at the verge of declaring bankruptcy, he will be released from the military in March 2024 for medical reasons, and he does not appear to have any support here in Renfrew (his mother lives in Alliston, 4.5 hours away, his father and step-mother live in Nova Scotia, and I have not been provided with any evidence as to any other family members, friends or members of the community who could be supporting the father’s parenting plan). I am seriously concerned about what might happen, now that the father is no longer taking his medication and without any expert evidence about his current mental health state, should he be left alone with the children unsupervised.
[54] Despite the above, I am of the view that it is important for the children to have some supervised parenting time with their father outside of the supervised access center, to promote more engagement on the father’s part, as well as a more natural setting where he and the children will be able to develop a more meaningful relationship – so long as there is a supervisor present at all times. For the time being, such supervised parenting time can only take place in the community or at a supervised access center, given the current state of the father’s home.
[55] The father has maintained throughout this trial that from his perspective, he has done everything that was asked of him to become a better parent and to be allowed to have a more meaningful role in the children’s lives. While I acknowledge that the father has done some programming through the military (including the “Stress: Take Charge!”, “Alcohol, Other Drugs, Gambling and Gaming Awareness”, and the “Mental Health First Aid” programs) and successfully completed the “Caring Dads” program, it does not appear that this has translated into a lasting change in the father’s problematic behavior. This is made obvious by the events of this past year, and the father’s ongoing abusive communications.
[56] Since the father is asking what he could have done, and what he could do for his parenting time to expand and become unsupervised, I have included in the parenting order that I make below a roadmap of services that the Court expects the father to meaningfully engage in, in order to achieve those goals and ask for a change in his parenting time with the children in the future.
[57] As far as decision-making responsibilities are concerned, the evidence before me confirms that the mother has been the children’s sole decision-maker for their entire lives. I have no evidence to suggest that she misused her responsibilities in that regard.
[58] Of particular relevance is the fact that the mother, on her own volition, contacted the paternal grandfather and his wife this summer when she travelled to Nova Scotia, to arrange a visit between them and the children. This shows that despite the conflict and challenges she is having with the father, the mother is able to set aside her ill feelings towards him to give way to what is best for the children.
[59] It is on the basis of all this that I make the parenting order found at the end of this decision.
CHILD SUPPORT
[60] As stated above, on July 17, 2020, Justice Fraser made a temporary order requiring the father to pay child support to the mother in the amount of $1,080 per month. The father has substantially complied with that order, although as of the date of this trial, he had outstanding arrears in the amount of $5,334.64.
[61] The father’s income for 2020 was $70,828, and based on that income he was required to pay the court-ordered amount of $1,080.
[62] In 2021, the father earned $82,624, and based on that income he should have paid $1,249 per month, resulting in an underpayment of $169 per month, or $2,082 for the year.
[63] In 2022, the father earned $75,484, and based on that income he should have paid $1,146 per month, resulting in an underpayment of $66 per month, or $792.00 for the year.
[64] Assuming that the father’s income in 2023 will be the same as in 2022, the father’s monthly underpayment this year is the same as last year ($66), resulting in a total underpayment of $594.00 from January to and including September.
[65] Based on the above, the father’s total arrears to and including September 2023 are in the amount of $8,802.
[66] On an ongoing basis, and until further order of the Court, the father’s child support obligation shall be set at $1,146 per month, plus a $200 monthly payment towards arrears until paid in full.
[67] The mother seeks a monthly contribution of $48 per month towards the children’s special and extraordinary expenses. However, I have not been provided with any evidence of such expenses for the coming year, other than soccer for both children at the cost of $250 per year. In my view, this expense (less than $50 per month for both children) is not an “extraordinary” expense. In other words, this is not an expense that exceeds those she can reasonably cover on her own, taking into account her own income and the child support that she will receive from the father (as per s. 7(1.1) of the Guidelines).
[68] As a result, I am not prepared to require a fixed monthly contribution on account of s. 7 expenses.
FINAL ORDER
The children shall be in the primary care of, and shall have their primary residence with, the Applicant mother.
The Applicant mother shall have sole decision-making responsibility for the children.
The Respondent father shall have parenting time with the children as follows: a. In accordance with the current status quo, the Respondent father shall have parenting time with the children every Sunday, at the Family Visitation and Exchange Services Center at 77 Mary St., Pembroke, Ontario K8A5V4 (the "Supervised Access Center") from 12:00 pm to 1:30 pm. b. Provided that the Respondent father can secure the services of a professional supervisor who is suitable to and approved by the Applicant (the "Supervisor") or appointed by the Court if the parties are unable to agree (as set out below), the Respondent father’s parenting time may move from the Supervised Access Center to supervised parenting time in the community on Sundays (or on any Sunday that the Supervisor is available, at the father’s option), from 12:00 pm to 4:00 pm. c. If the Supervisor is of the view that the father’s residence is suitable and safe for the children, the father’s supervised parenting time can take place in his home. d. If and when the father’s parents, step-mother or other family members are present in Renfrew, they shall be allowed to attend the Respondent father’s supervised parenting time with him.
With regard to subparagraph 3b) above (Supervisor), the following shall apply: a. The Supervisor chosen by the Respondent father and approved by the Applicant mother or appointed by the Court, must undertake in writing to the parties that he/she will be present at all times with the Respondent father and the children during the supervised parenting time, and will not leave the children alone with the Respondent father at any time; b. The Supervisor shall provide a brief report to both parties, by email, after each visit; c. If the parties are unable to agree on a suitable supervisor as proposed by the Respondent father, or if there is disagreement on any other issue related to the progression or scheduling of the Respondent's parenting time as set out above, either party may return this matter before me on a motion for a determination of that issue.
The costs arising from the Respondent father’s supervised parenting time with the children, including the cost of the Supervisor (as per 3b) above), shall be deemed a s. 7 expense that shall be shared between the parties in proportion to their respective income. Currently, the Respondent father’s proportionate share is 52% and the mother’s proportionate share is 48% (based on the father’s income of $75,484 and the mother’s income of $70,240).
The Applicant mother may adjust the Respondent's parenting time schedule when required for special occasions as identified by her, provided that if the Respondent father's parenting time is missed because of such adjustment, such time will be made-up within a reasonable period thereafter.
The Respondent father shall only communicate with the Applicant mother through a third party to be confirmed by the Applicant within 10 days of this decision. Alternatively, and only if the Applicant mother consents, communications between the parties may be exchanged via the parenting application www.ourfamilywizard.com (or a similar online application). Regardless of the means by way of which the parties communicate, the following directions shall be followed: a. The parties’ communications with one another shall be restricted to issues related to the children, including arrangements related to the father’s parenting time; b. The parties’ communications shall be brief, informative, and respectful, meant to convey information about the children and for no other purposes; c. The father shall refrain from engaging in discussions about the parties’ relationship or any other issues not related to the children, and shall ensure that his communications are void of accusations, threats, or other inappropriate language; d. There shall be no more than one communication per week between the parties, unless there is an emergency or an unavoidable last-minute change in the father’s parenting time; e. Any violation of the above direction may be brought to my attention by way of motion on notice to the other party; f. Otherwise, the Respondent father shall have no direct or indirect communication or contact with the Applicant mother.
For the time being, the Respondent father will not have direct access to the children’s medical, dental, school and other information or have direct access to the children's teachers, caregivers, physicians, dentists, and other health care providers. Instead, four (4) times per year (in January, April, July, and October), the Applicant mother shall provide him with an update with regard to the children’s health, education, school activities and progress, extracurricular activities as well as any other special event occurring in their lives. Such reports should include pictures of the children engaging in school, extracurricular or other special activities, as well as their school pictures (if any are taken).
Before the father is permitted to bring a motion to change his parenting time, he shall provide the following: a. An expert report providing a comprehensive overview of the current state of his mental health; b. Proof that he is (or has) meaningfully engaged in counselling to address his mental health challenges and anger management issues; c. Proof of completion of the following programs; i. A men’s program aimed at providing participants an opportunity to examine their beliefs and attitudes towards intimate partners’ violence; ii. “Discipline that Doesn’t Hurt”, or a similar program aimed at providing the father with new strategies for making his parenting and discipline methods more effective and less likely to be harmful to the children; iii. “Parenting Through High Conflict Separation and Divorce”, or a similar program aimed at providing the father with strategies to deal with high stress situations between himself and the mother (and the mother’s family), and a better understanding of how parent conflict affects children and how to minimize the children’s exposure to conflict.
The Respondent father shall pay to the Applicant mother child support for the children pursuant to the Child Support Guidelines based on his Line 150 income from his 2022 Notice of Assessment ("NOA") of $75,484.00, in the Table Amount of $1,146.00 per month, payable on the 1st day of each month hereafter, commencing October 1, 2023.
Arrears of child support up to and including September 2023 are fixed at $8,802 and shall be payable at the rate of $200 per month, until fully repaid.
The parties shall share the cost of any special and extraordinary expense reasonably incurred by the Applicant mother for the children in proportion to their respective income. Currently, the Respondent father’s proportionate share is 52% and the mother’s proportionate share is 48% (based on the father’s income of $75,484 and the mother’s income of $70,240).
Prior to July 1st of each year, the parties will exchange all information contained in s. 21 of the Child Support Guidelines (including but not limited to their Income Tax Returns and Notices of Assessment and of Re-Assessment, if any). Table support and proportional sharing of special expenses shall be adjusted based on this income information, retroactive to the previous year and based on the income earned by each party, in each given year.
COSTS
[69] The mother is the successful party in this trial. If the parties are unable to agree on costs, I will accept written submissions not exceeding five (5) pages, double-spaced, in addition to Bills of Costs and Offers to Settle, in accordance with the following timelines:
The mother shall serve and file her submissions by October 20, 2023;
The father shall serve and file his submissions by November 3, 2023;
The mother’s reply, if any, shall be served and filed by November 10, 2023.