NEWMARKET COURT FILE NO.: FC-21-108-00
DATE: 20231213
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kulwinder Kaur Gill
Applicant
– and –
Manpreet Gill
Respondent
B. Nagra, Counsel for the Applicant
Respondent, Self-represented
HEARD: October 18 and 19, and December 8, 2023
reasons for decision
A. HIMEL J.:
I. OVERVIEW AND RELIEF SOUGHT
[1] One year after an arranged marriage in India between the Applicant (“mother”) and the Respondent (“father”), a Canadian immigrant, the parties began their cohabitation in York Region. The marriage was marred by financial and fertility issues. The relationship deteriorated, and the conflict between the parties and their families increased.
[2] By the time this trial was heard, over seven years after the parties’ separation, the father was the subject of a temporary restraining order that was issued following repeated incidents of stalking, harassment, and verbal abuse. He has not seen S.G. (the “child”) since February 2023.
[3] The outstanding issues to be determined are as follows:
(a) Primary care and major decision-making;
(b) The father’s parenting time;
(c) Child support and section 7 expenses; and
(d) The mother’s request for a restraining order.
II. BACKGROUND AND LITIGATION HISTORY
[4] The facts as I find them are set out below and will provide context for the analysis. Further facts will be referred to in the analysis as required.
[5] The parties were married on January 31, 2007, and the mother immigrated to Canada on January 1, 2008. They separated on July 9, 2016. The child was born in May 2015 (and is now 8.5 years old).
[6] As stated above, the parties struggled financially. In 2014, the father purchased a used tow truck with the plan to be self-employed. He faced various challenges including high expenses related to this type of work and problems with his vehicle (and a second tow truck which has been largely non-operational until recently).
[7] The parties also struggled to have a child (which was a source of significant stress on the marriage). They spent approximately $20,000 towards that goal, which added to their financial problems. The parties disagree as to which party insisted that they engage in fertility (“IVF”) treatment.
[8] Following the child’s birth, the father understood that the mother would return to India (in October 2015) for one year, to enable him to conserve funds (by living with his brother/sister-in-law with whom the mother (and he) had a poor relationship).
[9] The father joined the mother in India for one month in November 2015, after his father passed away. The mother states that the father became verbally and physically abusive during that visit, behavior that continued after her return to Canada.
[10] The mother and child returned from India in March 2016, causing further conflict between the parties and the father’s brother’s family. Following an incident between the mother and her sister-in-law, the parties vacated that family’s home.
[11] In Spring 2016, the conflict led to periods of separation with the mother and child spending time with her sister’s family. The mother signed a document relating to the division of property and the child’s residence. The parties disagree on whether the mother signed the document under duress or voluntarily.
[12] In early July 2016, the father rented a basement apartment and the parties attempted to reconcile. However, the father permanently vacated the home on July 9, 2016. The parties separated on that day.
[13] As the father did not pay the rent, the mother and child were given notice to leave the apartment.
[14] From July 2016 to May 2020, the mother and child relied on Ontario Works and struggled financially. The father paid no child support.
[15] The father had no/nominal contact with the child from July 2016 to early 2018. He states that the mother disappeared with the child. In early 2018, the mother took the child to the tow truck (as the father was living in his vehicle) for visits on Sundays.
[16] In late 2020, the father requested (and the mother agreed) that the child spend time with the father from Saturdays to Sundays.
[17] The York Regional Police (“YRP” or “police”) were frequently contacted by the parties. The father repeatedly refused to return the child without the involvement of the police.
[18] The mother commenced this Application in January 2021.
[19] The father retained counsel in March 2021, seeking an equal time-sharing arrangement. He was unwilling to consider other options. The parties could not agree on a plan.
[20] The mother states that the father repeatedly sent inappropriate communications, and attended at her home yelling, screaming, and harassing her. On July 14, 2021, the father was charged with criminal harassment under section 264(2) of the Criminal Code. His contact was limited by a criminal undertaking.
[21] The parties (with counsel) attended a Case Conference and agreed to a temporary parenting order on December 17, 2021 (the “Bennett J. order”). The father was provided parenting time on Saturdays and during Christmas vacation, as well as two video calls per week.
[22] The father continued to send inappropriate and aggressive text messages. He followed the mother and would wait for hours outside her home, outside of the mother’s sister’s home, and by a park that the child attended. The mother feared the father, and the child became anxious about the visits.
[23] Although she had concerns, the mother was prepared to increase the father’s parenting time.
[24] By August 2022, the father’s criminal charges were resolved.
[25] On October 24, 2022, the parties consented to a new temporary order that provided the father with parenting time every Friday from 6:30 p.m. to Saturday at 6:30 p.m.
[26] The father continued to be unsatisfied with the parenting time schedule, and the mother continued to have concerns about the father’s care (and statements made to the child) during the visits.
[27] Throughout the litigation, the father inappropriately reported the mother to the York Children’s Aid Society (“York CAS”), including a complaint that the mother remarried. He also contacted YRP claiming that the mother kidnapped the child.
[28] The father reported the mother’s family to immigration authorities and lay a private charge against them in court. The father also took steps (and was pleased) to be responsible for the firing of the child’s school principal.
[29] The father discharged his second counsel and became self-represented.
[30] The father disregarded the court orders for child support and parenting (which he describes as “fake”) and continued to withhold the child (even after court orders were in effect).
[31] Since March 2023, the father’s aggressive and intimidating behaviour increased (towards the mother, her counsel, and court staff). He states that his civil rights are being violated (by limits made on his parenting time and by this proceeding).
[32] In Spring 2023, the father was observed stalking the mother and her counsel. He repeatedly sent communications that were vulgar, threatening, and inappropriate.
[33] The father was also verbally aggressive to court staff. He videotaped interactions with Newmarket court staff and YRP and uploaded the videos to YouTube.
[34] The matter was not reached during the May/June 2023 trial sittings.
[35] On June 7, 2023, Macpherson J. made a restraining order suspending the father’s parenting time, prohibiting contact with the mother and child, and severely limiting contact with the mother’s counsel.
[36] The father’s behaviour during the trial was highly problematic, necessitating direct and clear trial management, interruptions, re-focusing, and warnings. For example:
(a) The father was highly agitated at various times, arguing, interrupting, and raising his voice (to the mother, her counsel, and to me).
(b) He initially demanded that the trial be screened publicly on YouTube.
(c) The father focused on his rights being violated and the court system being against him (and fathers).
(d) The father threatened to post videos of the mother on YouTube if I refused to include them in the evidence (which I declined to do).
(e) He alleged that the two court orders (Bennett J. order and my order dated October 24, 2022 (the “Himel J. order”) were fake, according to YRP and the RCMP, even after I reassured him that they were real.
(f) The father argued that the above parenting orders were not on consent (when they arose from a Case Conference and a 14B consent order at a time when he was represented by counsel).
(g) He claimed that Macpherson J. made up the list of witnesses in the Trial Scheduling Endorsement Form. The father insisted that he would call other witnesses after I advised that there would be no other witnesses without my consent.
(h) Once again, the father recorded the court filing room staff and posted videos on YouTube, necessitating the issuance of an order prohibiting him from doing so.
III. PRELIMINARY CONSIDERATIONS
The Father is a Self-Represented Litigant
[37] The father was previously represented by two family lawyers, at various times. The father testified that they would not follow his instructions (to contest the divorce or demand a paternity test). They were each removed from the record.
[38] The father repeatedly stated that he was not a lawyer and did not know what to do. He refused to prepare for the trial. The father also refused to provide an updated Financial Statement, back-up financial documentation (such as tax returns or updated bank statements), or a draft order.
[39] Rather than properly serving his summonses on potential witnesses, he blamed the court filing office staff (and videotaped them without their consent) for refusing to complete this task (which is not their responsibility). He blamed the staff for his failure to produce documentation and possible exhibits. The proposed witness list was problematic as it included unnamed individuals and the mother’s counsel’s articling student. Ultimately, only the father, his family and a landlord testified on his behalf.
[40] In my endorsement dated October 20, 2023, I recommended that the father seek legal assistance. I included contact information for Legal Aid Ontario (“LAO”) and the Limited Scope Services Project. The father informed me that LAO had previously refused to assist him and that he expected me to help him.
[41] The father failed to obtain any legal advice during the adjournment period from October 19 to December 8, 2023, stating that he could not afford to retain counsel of any form. I decline to accept this as fact given the father’s income and his failure to pay child support (such that he retains $350 per month that should be paid to the mother).
[42] During the trial I took various steps to assist the father, recognizing that he is a self-represented litigant. As stated by the Ontario Court of Appeal in the recent decision, Grand River Conservation Authority v. Vidhya Ramdas:[^1]
The Court has the duty to ensure that self-represented litigants receive a fair hearing.
Self-represented litigants are expected to familiarize themselves with the relevant practices and procedures pertaining to their case and respect the court process.
The Court must permit the represented party and the self-represented party to explain how they understand where things stand in the litigation.
The Court may swear the party in before he/she makes submissions so that all admissible evidence can be relied upon.
It is open to a judge to engage in active adjudication to obtain relevant evidence. However, a judge must not cross the line between assisting self-represented litigants in the presentation of their evidence and becoming their advocate.
[43] The steps I took are outlined below:
(a) Throughout the trial, I reminded the father of the issues that the Court must decide, I explained direct and cross-examination processes (with examples), and re-framed questions on his behalf during the examinations.
(b) I permitted the father considerable leeway in his cross-examination of the mother including permitting him to ask some irrelevant questions and re-directing him when he made inflammatory statements.
(c) Although the father breached the terms of the Trial Scheduling Endorsement Form (“TSEF”) Order by failing to serve and file any of his proposed exhibits (which were required months ago), I permitted him to serve and file documents (during the trial) and gave him time to make the necessary paper copies.
(d) Although the father breached the TSEF Order and my direction (two days before the trial) to serve and file an updated Financial Statement (as the most recent one was from July 2022), I provided the father with a copy of his old Financial Statement and provided him time (overnight) to update the form (which he refused to do).
(e) I permitted the father to call his landlord, even though he was not on the witness list.
(f) I employed active adjudication and asked questions where there were gaps. I did so to ensure that I had the best available relevant evidence.
(g) I adjourned the trial for six weeks and ordered a Voice of the Child (“VOC”) Report (on consent). I did so to ensure that the child’s current views and preferences were before the court. I explained the purpose of a VOC report and the role of the clinician.
(h) I asked the parties if they would consent to a temporary supervised parenting order during the adjournment period to enable the father to reconnect with the child. I arranged for the father to speak with duty counsel so that he could make an informed decision. The mother consented but the father did not. My endorsement adjourning the trial left open the possibility of supervised parenting time if the father changed his position and retained one of the supervised access agencies.
Credibility and Reliability
[44] I find the mother to be a credible and reliable witness on most issues. During her direct examination, and in response to my questions, the mother provided clear evidence in support of her claims.
[45] For example, the mother’s evidence that she was subjected to verbal abuse and harassment was well supported by the evidence, including text messages and photographs.
[46] The mother quickly made concessions where it was appropriate to do so. For instance, although the mother requested that the court impute an annual income to the father of $60,000, she conceded a lack of knowledge of the father’s actual income and the family’s finances both during the marriage and following the separation. The mother also conceded that the family never lived a luxurious lifestyle. They took no vacations, did not eat in restaurants, lived in a basement apartment, and did not have expensive clothing or cars.
[47] The mother had some difficulty remembering details about some historical events when questioned by the father. However, I recognize the challenges of being cross-examined by someone who has engaged in verbal and other forms of family violence. I also recognize that the father was agitated during the mother’s case.
[48] In contrast, there were significant issues with the father’s evidence.
[49] First, the father made serious allegations with no evidentiary basis. For example, he stated that the child is at risk of being (or has been) sexually abused while in the mother’s care. The father reported the mother to York CAS repeatedly. His complaints were closed at the initial interview stage.
[50] The father produced little documentary evidence to support his claims, and he refused to serve and file a new updated sworn Financial Statement and back-up evidence (even though I requested this before and during the trial).
[51] The father denied being able to read English (in reference to the child’s 2019 private school enrollment form that he signed) but admitted to graduating from grade 12 in Ontario. He also read many passages into the record of text messages/emails that he wrote (in English). The father denied reading/understanding the VOC report, yet he questioned the clinician about the contents of the report.
[52] When asked about text messages that contain derogatory name-calling in English and Punjabi (“whore”) and threats to cause harm, the father testified that these comments are “productive” communication and justified.
[53] The father’s witnesses (which included his brother, the paternal grandmother (“PGM”), and the landlord) did not corroborate his evidence on points that he believed were important. For example, the grandmother did not see any injury or stitches on the child’s face (an injury that the mother denies). Moreover, when the child discussed the incident with the Office of the Children's Lawyer (“OCL”) clinician she confirmed never needing stitches.
[54] I prefer the mother’s evidence over the father’s evidence as it is more consistent, reliable, credible, and better supported by documentation.
IV. REVIEW OF THE MOTHER’S EVIDENCE
[55] The mother states that the parties’ relationship was generally good after her arrival in Canada. However, the father became increasingly controlling and abusive over time.
[56] While the mother tried to maintain the peace by avoiding conflict and complying with the father’s demands, the abuse continued.
[57] Following the separation, the mother was in dire financial circumstances. Since 2016, the father only paid child support for nine months, notwithstanding the Bennett J. order.
[58] The mother obtained a divorce on September 29, 2021. However, the father refuses to acknowledge the divorce stating that the “only way to get a divorce in Sikhi is to be dead.”
[59] Given the history set out above, the power and control issues, and the poor communication, the mother does not believe that joint major decision-making or shared parenting is in the child’s best interests.
[60] The child has always primarily resided in her care (except for two short periods of time years ago), and she has made all significant decisions. The mother has been solely responsible for the child’s medical, educational, and activity needs.
[61] The mother recognized the importance of the child’s relationship with the father, which is why she brought the child to the father’s tow truck for visits (starting at the age of 2.5 years).
[62] In 2020, the father requested, and the mother agreed, that the child spend time with him from Saturdays to Sundays.
[63] The mother has had various concerns about the child’s care, including the missed online school (when the father withheld the child).
[64] The mother was worried about statements made by the child including that: the father often worked during his parenting time leaving her with the PGM; the child put herself to bed (at 2:00 a.m.) when staying overnight at the father’s home; and that the father paid a lot of money for the child (perhaps in reference to the IVF and/or legal fees).
[65] On June 28, 2021, the father attended a graduation ceremony at the private school in Malton (the “Malton school”). The father yelled and threatened staff. Consequently, the school refused to permit the child to re-enroll. The child was very upset to leave the school and her friends. The child refused to eat for several days.
[66] On July 14, 2021, the father was charged with criminal harassment.
[67] The father does not do homework with the child (which he admits).
[68] The father smokes in front of the child (which he admits) causing her to return home with a sore throat.
[69] On April 22, 2023, the father prohibited the child from attending a speech competition on his parenting time “and completely lost it.” The child wanted to attend the competition.
[70] The father refused to permit the child to attend family weddings.
[71] The father is more interested in power and control than in parenting time. He used the video calls to ask questions about the mother and barely spent time with the child during the visits.
[72] When the child wanted to do activities during the father’s parenting time, he refused and sent nasty and threatening messages, and/or sent the police. She could not attend birthday parties or extracurricular programs.
[73] The child is afraid of the father and does not want to attend for parenting time. In 2021 and 2022, the child would not eat on the day of the visits, and she would cry.
[74] The child appears happier and is doing much better since she stopped seeing the father.
[75] The father does not respect women. He yells obscenities, engages in name-calling, and makes demeaning statements towards women (including family members such as an 11-year-old niece, and often in front of the child).
[76] The mother seeks an order that the father have no contact with the child, which is the status quo since February 2023. She takes this position because of the father’s poor care of the child during the overnight visits, the child’s wishes and expressed concerns about the parenting time, and the child’s behavior before and after the parenting time visits.
[77] With respect to child support, the mother requests that the father be imputed an income of $60,000. However, she acknowledges that she has no information (and never had any information) about his income. The father has a low declared income of $17,000 (2020), which contradicts the corporate Financial Statements ($40,000 revenue). She also relies on the father’s admissions of cash income.
[78] The mother seeks a contribution to the child’s private school as the father agreed to enroll the child at the Malton school and has not objected to the current enrollment at the new private school.
[79] In addition to the facts set out above to support the mother’s claim for a restraining order, she states the following:
(a) The harassing and inappropriate messages only ended when the father was prohibited from any communication. This includes the period of time governed by the criminal undertaking conditions (July 20, 2021, to March 2022) and following the restraining order (June 2023).
(b) The mother recognized the father’s voice when she answered the telephone to an unknown number.
(c) The mother also recognized the father’s voice when she answered the telephone number starting with 302. A message from this number was left on the mother’s counsel’s answering machine. The message included vulgar statements in Punjabi and Hindi.
(d) The mother had no option but to block the father’s phone number when he was not governed by an order preventing contact.
(e) The father sat outside her lawyer’s office waiting and threatened the lawyer that “you only have one month left. So you don’t regret in future.”
(f) The father has threatened (by email) that he could go buy a gun.
(g) The father blames the mother, her lawyer, the Court, and everyone else for his problems.
(h) The father makes allegations to third party agencies (York CAS, YRP, Immigration Canada) to harass the mother and her family.
(i) The father posts content on YouTube.
(j) Since the scheduling of the trial (approximately one year ago), and the delay in having the trial heard, the father’s behaviour worsened. The mother was afraid to leave the child with the father.
(k) The father has threatened to throw acid at the mother.
(l) On June 5, 2023, the father threatened the mother’s counsel to give him the child or he would take matters into his own hands. He has threatened the mother and her counsel and used phrases like “you bitches”.
(m) The mother believes that the father has mental health issues and may harm the child.
V. REVIEW OF THE FATHER’S EVIDENCE
[80] The father practices the Sikh religion and describes himself as Khalistani. The father describes becoming hardcore in his religion since 2020.
[81] The father believes that his civil rights have been violated by the Court, and by the police. He has made complaints about his treatment to the Police Board and the Human Rights Commission. He also reported the mother and her family to the York CAS, to the police (for failing to drive with insurance), and to the immigration authorities (for alleged fraud). However, these agencies have not taken steps.
[82] Divorce is against the father’s religion. He states that it was the criminal charges (which prevented him from residing with the mother) that improperly enabled the mother to obtain the divorce. He wanted to bring a motion to disagree with the divorce as it is his constitutional right; however, his first lawyer refused to do so and left the file.
[83] The father states that a step-parent is the worst thing (and his brother describes the mother’s husband as a “random” and risky person). He believes that step-parents abuse children.
[84] The father acknowledges that the mother was the primary caregiver when the child was small and that he did not know how to care for the child. When the mother gave the child (then six months old) to the father, he took the baby to the maternal aunt’s home. He subsequently left the child with his brother (and family) for approximately two months, until she was returned to the mother.
[85] The mother disappeared from 2016 to 2018 and prevented any contact. When contact was re-established, he spent time with the child in his tow truck.
[86] Once the father had a place to care for the child (after residing in his tow truck), she began spending time with him on weekends. As there was no court order in place, he did nothing wrong when he kept the child against the mother’s wishes.
[87] After retaining legal counsel, the mother limited the father’s parenting time.
[88] The father did not agree to the parenting time schedule and terms set out in the Bennett J. order (which was derived from a Case Conference) and the Himel J. order (which was obtained by way of a consent 14B motion). The orders favour the mother.
[89] The father states that the RCMP and police refuse to enforce the orders because they are fake.
[90] He was justified in breaching the parenting orders and in keeping the child for holidays, as a judge told him he should have more time including holidays and summer.
[91] During his parenting time the father played with the child, and she enjoyed her scooter and cycling. The father took her to the store and water park. They would not do the homework as the weekends were only for fun.
[92] The father loves the child and believes that she should reside primarily with him for the following reasons:
(a) The child is at risk/has been sexually abused in the mother’s home (where she resides with the step-father).
(b) The child is at risk/has been sexually abused in the cousin’s home, as the cousin was victimized by an uncle.
(c) The mother goes to the cousin’s home where there are guns.
(d) The mother does not deserve to have the child.
(e) It is his turn to be the primary care parent as the mother has already had nine of the 18 years of parenthood.
[93] With respect to finances, the father states that the family struggled throughout the marriage, in part because of the IVF treatment and the mother’s refusal to stay in India for one year following the child’s birth. Other financial issues related to his tow truck business (which he started in 2014) and his unpaid business taxes.
[94] While the father won a Honda Civic in 2018 (after the separation), he chose to take a cash payment of $20,000 to repay some of his tax and other debts.
[95] The father states that he has earned a low income since deciding to work for himself as a tow truck driver. While he owns two tow trucks, several issues (including repairs) and accidents have interfered with his ability to have the second tow truck operational until recently.
[96] The father’s sworn Financial Statement dated July 2022 (when he was represented by counsel) estimates his revenue at $36,000 per year and his business expenses (such as fuel and Google ads). His before tax income is unknown, given the undeclared cash element of his business and the missing tax and bank statements. The father has yet to file his 2022 income taxes.
[97] After the Canada Revenue Agency (“CRA”) shut down his business bank account in 2016 (due to unpaid taxes), he was primarily paid in cash. The father can now accept other forms of payment as the corporate account was unfrozen (after he recently repaid the sum of $3,000 in taxes). When the father receives cash, he pays for certain expenses and deposits the remainder in his bank accounts.
[98] The father’s income has not changed since 2022. Within the next six months, his income will increase. He now has two tow truck drivers who pay a 40% commission to use his vehicles (although he continues to pay many of the expenses). The father plans to drive one of the tow trucks when they are not being used by the other drivers.
[99] The father also testified that the tow truck industry is corrupt and that he was prevented from obtaining a licence in Mississauga. These facts negatively impacted his income. However, there is a new province-wide tow truck licence which will come into effect in January 2024.
[100] The father received a CERB loan of $60,000. He is hoping to raise the sum of $20,000 and borrow the sum of $20,000 (from family/a business colleague) to repay the debt by December 31, 2023. If he can do so, the remaining $20,000 will be forgiven.
[101] With respect to child support, the father admits that he paid only a few months of rent to the mother following the separation. After a child support order was made in December 2021, the father made approximately nine (9) monthly payments. The consent order was based on an imputed income of $39,200, and he was required to pay the sum of $350 per month.
[102] The father believes that he should not pay child support for a few reasons. First, the mother withheld the child so he should not be required to pay child support. If he was given two days of parenting on the weekends, he would pay child support.[^2]
[103] Next, the father already paid $20,000 for the IVF treatment but, after that, “he never saw the kid.” By paying for the IVF treatment, he has paid for the child. Finally, the father paid approximately $14,000 in legal fees to deal with this case when he was represented by counsel.
[104] If the court orders that the child reside with the father, he will pay for her expenses and raise the child the way he wants to. He previously agreed to pay child support if the child resided with him on a 50/50 basis.
[105] The father denies agreeing to contribute to the annual cost (approximately $5,000) of the Malton school. He admits that he signed a document with the school in March 2019, which provides the financial terms of enrollment. The father states that he did not read or understand the agreement. He insisted that the child started at the school before the agreement was signed, but that is not correct (as per the school’s letter that he submitted at trial).
[106] While denying the details surrounding the incident at the graduation ceremony in 2021, the father admitted that the child could not be re-enrolled the following day. He also proudly testified that he re-attended at the Malton school in 2022 to ensure that the principal was fired. He states that principal no longer works at the school because of his complaints (as she is Hindu, not Sikh). During his closing argument, the father stated that he plans to return to the Malton school as a Christian person now holds the role of principal (which he sees as problematic).
[107] The father denies becoming physical with the mother during an incident involving his tow truck but admits that there was yelling.
[108] The father (and the PGM) testified that it was the mother and the maternal grandmother who started the argument when the family got together to see what could be worked out in 2020.
[109] The father denies that he has been calling the mother from a 302 number. He believes that the calls are being made by her brother-in-law as he too has received these calls (although he provided no evidence to that effect).
[110] He admits to sending derogatory, name-calling, and threatening texts to the mother, but believes that these are a productive way to communicate.
VI. LAW AND ANALYSIS OF THE PARENTING ISSUES
[111] The Divorce Act governs the parenting issues that arise in this case and require that the court consider the best interests of the child.[^3] The relevant provisions and caselaw are set out below.
Factors to be considered
16 (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.
Family Violence
[112] As part of the parenting-time and decision-making analysis, the Court must consider family violence. Chappel J. provides a thorough explanation of the 2021 amendments to the Divorce Act in McBennett v. Danis:[^4]
[84] Section 16(3)(j) specifically highlights the occurrence of “family violence” as an important consideration in determining where the best interests of a child lie in making parenting and contact orders. Section 2 of the Act defines the term “family violence” very broadly as follows:
family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes
a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
b) sexual abuse;
c) threats to kill or cause bodily harm to any person;
d) harassment, including stalking;
e) the failure to provide the necessaries of life;
f) psychological abuse;
g) financial abuse;
h) threats to kill or harm an animal or damage property; and
i) the killing or harming of an animal or the damaging of property
[85] The definition of family violence specifically recognizes that conduct that may not constitute a criminal offence can constitute family violence for Family Law purposes. The examples of conduct that constitute family violence is expansive, but it is non-exhaustive. The broad definition recognizes the many insidious forms that domestic violence can take other than physical violence and accords each equal weight in the best interests assessment.
Factors relating to family violence
16(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.
[86] The broad definition of family violence and the specific inclusion of this factor as a mandatory consideration in determining the best interests of children recognize the profound effects that all forms of family violence can have on children. These consequences can be both direct, if a child is exposed to the family violence, or indirect, if the victimized parent’s physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact their ability to meet the child’s physical and emotional needs.
[113] I recognize that both parties love the child and that there have been ongoing problems with the father’s parenting time resulting in the status quo (being that the child has had no contact with the father since February 2023). However, love alone does not dictate one form of parenting order or another.
[114] The father’s history of family violence including verbal abuse, harassment, stalking and threats, has negatively impacted the child and the mother. I must consider the violence in my assessment of the parenting issues and the child’s best interests (and I would do so even if not so obliged).
Primary Care and Major Decision-Making
[115] I find that the mother shall have sole major decision-making and primary residential care of the child, as detailed in my order. I make that order for the following reasons:
(a) The mother has provided a stable home for the child since separation.
(b) The child has a close relationship with and is emotionally attached to the mother (and the step-father).
(c) The child is doing well in the mother’s care, and her educational, medical, and other needs are being met. The child has a stable home and school life and now attends extra-curricular activities.
(d) The child wishes to continue to live primarily with the mother, as noted in the VOC Report.
(e) Notwithstanding the verbal abuse and stalking behaviour, the mother repeatedly offered the father reasonable proposals for parenting time. She was willing to foster the father-child relationship. Rather than follow a set schedule, he chose to decline parenting time or overhold the child and create issues at the child’s school.
(f) There is a long-standing history of the father being the perpetrator of family violence as defined in the Divorce Act. His aggressive, intimidating, and harassing statements and actions have affected the child directly (she reports being scared of the father) and indirectly (as the mother, her primary caregiver, has been victimized by his actions).
(g) The father has threatened to harm the child and the mother, stating that no one can stop him from having care of the child.
(h) The horrific name-calling, insults, and demeaning attitude towards the mother impacts the child.
(i) The father refused to provide the child with the necessities of life by refusing to pay child support regularly (both before and after the court order was made).
(j) The father puts his own needs (to have the child for the next nine years and refusing to permit her to participate in activities on his time) before her own. He does not recognize that the mother is the child’s primary psychological parent. He does not recognize that the child has her own wants and needs when they conflict with his own.
(k) The father fails to recognize that his actions (for example, interfering with the child’s school causing her inability to return and having the principal fired) have an impact on the child’s best interests. Instead, he sees his actions as a success.
(l) Joint decision-making is not possible. The father’s attempts to control and over-power the mother make any consultation and consensus-building impossible. He has repeatedly attempted to interfere with the mother’s well-being (and her family’s well-being) to cause them pain and suffering (including laying a private information complaint against the mother’s sister for alleged identity theft).
(m) The father has a history of making complaints, as well as threatening lawsuits and harm to third parties (such as the police, the court staff, and the school). The father interferes with any decision he disagrees with (such as school choice) until the third party complies with his wishes or backs down. While the father is currently satisfied with the child’s new private school (as the principal is a Sikh and the curriculum does not include LGBTQ+ lessons), I am worried that he will interfere with the child’s ongoing attendance if he later disagrees with the school’s approach to education.
(n) If, as the child matures, she objects to the father’s life views (for example, on divorce, gender or sexuality), I am very concerned that he may become verbally, emotionally, and/or physically violent towards her.
(o) The father has falsely accused the mother and the step-father of sexually abusing the child.
(p) The child is not a piece of property, and the father has no “right” to keep her for the next nine years.
(q) If the father has primary care of the child, he will not provide the mother with parenting time. If he disagrees with a court order, he labels that order as “fake.”
The Father’s Parenting Time
[116] As stated previously, the mother requests that the father have no parenting time, and the father seeks primary care (which I decline to order for the reasons set out above).
[117] The father has not seen the child since February 2023. When the trial started in October 2023, the only recent evidence regarding the child’s stated views and preferences was that which was provided by the mother. For that reason, I made an order (on consent) requesting that the OCL produce a VOC Report.
[118] I also asked the parties whether they would consent to a temporary order for supervised parenting time pending the final date of the trial (December 8, 2023).
[119] I explained that the supervised parenting time would provide objective evidence (notes) about the parent/child interactions and would enable the OCL clinician to interview the child when she was once again spending time with the father. I provided this option as the child had not seen the father for many months and given the concerns that led to the issuance of the temporary restraining order in June 2023.
[120] The mother agreed to weekly supervised access visits.
[121] The father did not consent after meeting with duty counsel to obtain legal advice. He took the position that he does not need supervised visits and that he could not afford to pay the required fees.[^5]
[122] Once again, the father failed to put the child’s needs and interests before his own. Given that both tow truck vehicles are now operational and two new employees are now paying commission, I decline to accept that the father was unable to pay for four supervised parenting time visits.
[123] On November 14, 2023, the OCL clinician, Shaista Durrani, issued a VOC report. During the two interviews, the child (who was articulate, open, and responsive to questions) stated the following about parenting time with the father:
(a) The father spends little time with her during visits, as he goes to work and leaves her with the PGM.
(b) She has concerns and fears about being left with the PGM, as she gets angry.
(c) The child smiled and put two thumbs up when asked how she felt about never seeing the father again.
(d) The child observed the father calling the mother the f-word, n-word and Kuthi (a bitch). She is unhappy about how the father treated her mother.
(e) She is uncomfortable about being with the father and at his home.
(f) There is nothing positive that she could say about the father.
(g) The child does not like the father smoking in her presence.
(h) The child sleeps in a bed with the father, even though there is a folding bed available.
(i) The child is willing to have supervised parenting time with the father.
(j) The child is also upset that the father got into conflict with her old school and the landlord. She is worried that her family may need to find a new place if the father returns to her home.
(k) The father needs to stop calling her mother names and should play with her.
(l) After supervised access, the child may be willing to go on a weekend day (but not overnight) or out for dinner.
[124] On December 8, 2023, the OCL clinician testified. She answered questions and re-confirmed the child’s views and preferences. The father was argumentative with the clinician, accused her of failing to do a proper investigation. He stated that the report was one-sided.[^6]
[125] In the recent decision of Armstrong v. Coupland, Justice Lafreniere reviewed the factors to consider when making a final order for no contact or supervised parenting time.[^7] A summary of the considerations, based on the principle of the best interests of the child, is set out below:
a. Following a period of limited or no access (due to the parent’s actions), where the parent provides no evidence that they can control their violent action, a termination of contact may be necessary. The potential for violence could lead to fearful consequences with respect to the child(ren) or the other parent.
b. To deny access to a parent is a remedy of last resort.
c. Most of the time, children will benefit from having access to both of their natural parents. However, there are cases when access may be against the best interests of the child.
d. Terminating access may be required where there is a history of long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear.
e. Ongoing severe denigration of the other parent may warrant no contact or supervised access.
f. A lack of relationship or attachment between noncustodial parent and child.
g. Neglect or abuse to a child on the access visits.
h. Older children's wishes and preferences to terminate access.
i. An order for supervised access can be an alternative to terminating parenting time as such an order can: protect children from risk of harm; continue or promote the parent/child relationship; direct the access parent to engage in programming, counselling or treatment to deal with issues relevant to parenting; create a bridge between no relationship and a normal parenting relationship; and avoid or reduce the conflict between parents and thus, the impact upon children.
j. While supervised access is seldomly an indefinite or long-term solution, it should always be considered as an alternative to a complete termination of the parent/child relationship.
[126] While long term supervised parenting time is not the usual course, it can be appropriate. If, at a later date, the parent can demonstrate that they completed assessments, and engaged in treatment to improve themselves, the supervision can be reviewed.[^8]
[127] The mother is concerned that the father may harm the child if provided the opportunity to do so. I agree.
[128] Unsupervised access is not appropriate at this time, given the risks to the child’s emotional and physical health and well-being.
[129] Given the history of family violence and aggressive/intimidating behaviour, as well as the child’s stated views and preferences, I am not prepared to make any order for unsupervised parenting time. Therefore, the options are supervised parenting time (by a service) or no contact.
[130] The child is ambivalent about having any ongoing contact with the father. However, as she is willing to attend for supervised access, I am making an order to that effect. Supervised access will provide the child with the opportunity to continue a relationship with the father in a setting that is safe and supportive.
[131] The father may have supervised access through Kinark Child and Family Services (“Kinark”), which has affordable fees for therapeutic access. If Kinark declines to accept the file then regular (not therapeutic) supervised access shall be arranged through Social Enterprise (which is subsidized by the Ontario Government), as follows:
(a) The father shall complete his intake form and all required fees by December 31, 2023. Once the agency confirms that the father has complied, the mother shall complete the required intake form; and,
(b) The father shall continue to pay any fees arising from the supervised access (which should not be significant as these are affordable services).
[132] The supervised access order shall terminate and there shall be no further contact, if:
(a) The child tells the supervisor at three different visits that she does not want to attend any further supervised access; or,
(b) The father misses three visits within any three-month period.
[133] If the supervised access goes well (as evidenced in the supervised access notes), the father may serve and file (to my attention) an Application for Leave to bring a Motion to Change the parenting time. He may do so no earlier than July 2, 2025. It is likely that leave will only be granted if:
(a) The father engages in a psychiatric assessment from the Center of Mental Health and Addiction, or a psychiatrist who conducts comprehensive assessments, and includes the report with his Application for Leave. The report must confirm that the psychiatrist reviewed a copy of the Reasons for Decision before conducting the assessment;
(b) The father provides evidence that he is complying with any treatment recommended by the psychiatrist;
(c) The father is paying the ongoing child support and the contribution towards the arrears; and,
(d) The father includes copies of all supervised access notes.
[134] The mother need not respond to the Application for Leave unless she is directed to do so.
[135] Whether, or not, the father follows through on the supervised access, the child would benefit from individual counselling (preferably in Punjabi). The Court requests that the mother follow through with this recommendation which was made by the OCL clinician.
VII. RETROACTIVE AND ONGOING CHILD SUPPORT AND SECTION 7 EXPENSES
[136] Section 15.1 of the Divorce Act deals with child support, the relevant provisions of which are 15.1(1) and 15.1(3):
Child support order
15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.
Guidelines apply
(3) A court making an order under subsection (1)…shall do so in accordance with the applicable guidelines.
[137] In addition to table child support, the mother has claimed a contribution by the father to the children’s special or extraordinary expenses pursuant to s. 7 of the Federal Child Support Guidelines[^9] (“Guidelines”):
Special or extraordinary expenses
7 (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:
(a) childcare expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
[138] In A.E. v. A.E.,[^10] Justice Chappel reviewed the additional principles that a court must consider in awarding retroactive and ongoing child support.
Child support is the right of the child that arises upon the child’s birth and exists independent of any statute or court order. It survives the breakdown of the parents’ relationship (D.B.S. v. S.R.G; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (“D.B.S.”), at para. 38; Michel v. Graydon, 2020 SCC 24, at paras. 10, 41, 45, 77; Colucci v. Colucci, 2021 SCC 24, at para. 36).
Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together (D.B.S., at para. 38; Michel at para. 10).
The purpose and promise of child support are to protect the financial entitlements due to children by their parents (Michel, at para. 38). Having regard for this purpose, the law of child support calls for a “fair, large and liberal construction and interpretation as best ensures the attainment of its objects” (Chartier v. Chartier, [1999] 1 S.C.R. 242 (S.C.C.), at para. 23, cited in Michel, at para. 40). These objects include serving the best interests of child. Accordingly, the best interests of the child should be at the heart of any interpretation of child support legislation and principles (Michel, at paras. 40, 102-103).
The law of child support should also be interpreted in a contextual and purposive approach that takes into account the policies and values of contemporary Canadian society (Michel, at paras, 71-72).
The amount of child support owed will vary based upon the income of the payor parent, and it is not confined to furnishing the “necessities of life” (D.B.S., at paras. 38-45; Michel, at para. 10; Colucci, at para. 28).
It is the responsibility of both parents to ensure that a payor parent satisfies their actual child support obligation. However, since child support is fundamentally the child’s right, the child should generally not be left to suffer if one or both parents fail to monitor child support payments vigilantly. Where either or both parents fail in their obligation, the court may grant relief to correct the failure (D.B.S.; Michel, at para. 47).
Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it. Accordingly, any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated.
[139] The child has a right to support retroactive to the date of separation (August 1, 2016). The child had financial needs, and the father had the ability and obligation to pay child support. The father’s decision to decline to voluntarily contribute to the child’s support is made worse by his knowledge that at the time of separation the mother was a stay-at-home parent to a one-year-old child, with no sources of income.
[140] I do not fault the mother for any delay in bringing this Application or for not pursuing the child support (and the father’s subsequent breach of the order) until 2021. The mother’s counsel repeatedly requested that the father contribute voluntarily. He paid the sum of $256 voluntarily from September to December 2021.
[141] The father’s argument that he should not be required to pay child support as he paid the sum of approximately $20,000 for the IVF treatments and $14,000 in legal is deeply concerning.
[142] Also troubling is the father’s prior position that he would only pay child support if granted weekend access or a 50/50 parenting schedule. His current position, being that he will only support the child if she resides in his care, is also problematic.
[143] The father argues that the child is a “golden egg” and that the mother’s sole motivation to care for the child relates to money. He is hopeful that the mother will have another baby and give the child to him. The father’s views are unfounded and offensive. The child is not a piece of property whose value arises from the right to claim government benefits or child support. Raising a child to adulthood is expensive. Both parents are required to contribute to a child’s support, which is accounted for in the formula utilized by the Guidelines. Supporting one’s child is both a legal (and moral) obligation that is required of all parents in accordance with their ability to do so.
[144] The mother requests that I impute an income to the father of $60,000 per year. The starting point for this analysis is section 19 and Schedule III of the Guidelines. The relevant subsections are as follows:
19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse.
[145] The leading case that defines intentional under-employment in Ontario is Drygala v. Pauli.[^11] “Intentionally” means a voluntary act. The person required to pay support is intentionally under-employed if that person chooses to earn less than he or she is capable of earning. The person required to pay support is intentionally unemployed when he or she chooses not to work when capable of earning an income.
[146] When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances.[^12] The factors include age, education, experience, skills, and health of the parent. The availability of job opportunities, number of available work hours (in light of the parent's overall obligations including educational demands), and a reasonable hourly rate may be considered.
[147] I am prepared to impute an income to the father. His declared income is well below minimum wage (in the amount of $17,000 for 2020, as per his sworn Financial Statement dated July 29, 2022). Moreover, the father acknowledges that he receives cash income.
[148] However, I decline to accept the mother’s proposed income of $60,000, which she acknowledges has no evidentiary basis.
[149] The father’s income as a tow truck driver (for a third party) and as a tow truck owner operator (as of 2014) has always been low. The parties lived a “normal” lifestyle, living in a basement apartment or with relatives, never going on vacation, and only eating at home. During the marriage, they were unable to repay the debt incurred to fund the IVF treatments and the father fell behind in his payments to CRA.
[150] The father testified that his current revenue is approximately $48,000, as per his July 2022 Financial Statement (which was produced with the assistance of legal counsel). I accept his evidence that he has incurred high expenses including repairs to both tow trucks (with the second vehicle being fundamentally inoperable until recently), gas, insurance, loans, repairs, and expensive Google ads. A prior employee was involved in an accident and did not have proper insurance. The mother admits that the sum of $20,000 in expenses may be properly deducted from the father’s income.
[151] The father’s income was solely paid in cash when the CRA froze his corporate bank accounts. This made it more difficult to earn an income. Other challenges included the absence of a tow truck licence to operate in Mississauga (his preferred jurisdiction), which prevented him from attending at accidents. The tow truck industry is in the midst of a re-organization due to the corruption.
[152] However, it is unclear what amount of cash was not declared to the CRA. I must consider the father’s evidence that he spent some of the cash without depositing it in his accounts.
[153] I accept the father’s evidence that he continues to owe significant tax debts and that he has incurred further debt from the receipt of the CERB payment ($60,000). The increase in debts is set out in the Financial Statement.
[154] The father has continued to struggle financially since the breakdown of the marriage. He initially resided in his tow truck. He now resides with his mother in a one-bedroom apartment. After incurring legal fees in the amount of $14,000, he has been self-represented (for over one year).
[155] I have reviewed the father’s bank statements (personal and corporate following the unfreezing of the accounts – although they are dated), as well as his credit card statements. He has limited funds and limited personal expenses. I accept that he pays certain expenses in cash which he recognizes is in addition to the deposits into his account. Some of this cash should be added back and grossed up if it is not declared to CRA.
[156] I decline to accept the father’s closing argument statement that his income is $20,000 or $25,000 per year.
[157] Taking all of the above factors into account, I find that the most reasonable income to impute to the father is that which was agreed to at the Case Conference in December 2021. Therefore, from August 1, 2016, the father shall pay child support in the amount of $350 per month based on an imputed annual income of $39,200. The father shall receive a credit for the amounts paid to date.
[158] The father shall pay the retroactive child support by way of a lump sum of $1,000 towards the arrears (within 30 days) and the remainder at a rate of at least $200 per month commencing February 1, 2024.
[159] The father testified that he anticipates a higher income within six months. He now employs two drivers who pay a 40% commission (which assists in his expenses). Both tow trucks are now operational. The father intends to continue to drive during the afternoons/nights. In January 2024, the father will obtain an Ontario-wide tow truck licences as part of the new program. Therefore, commencing July 1, 2024, the father’s income shall be imputed at $50,000 per year, and he shall pay monthly child support of $461.
[160] The mother requests that the father be required to contribute to the child’s private school expense, as it is a reasonable and necessary section 7 expense. I note that the father signed the enrollment form at the Malton School, which committed both parties to pay the required school fees commencing September 2019. Therefore, they are both required to contribute to this expense. As stated previously, the child ceased attending that school in June 2021. As the total expense was $5,000 for each of the two school years, and the mother’s income was approximately $36,000 per year, the father shall pay his 50% share in the amount of $5,000.
[161] In September 2021, the child was enrolled in public school. In September 2022, the child was enrolled at a new private school. However, this was done without the father’s consent, and the mother declined to provide the name or contact information of the school (although the father subsequently learned this information). Notwithstanding that the child prefers the private school, this expense is not reasonable or necessary. The mother provided no evidence that the cultural and/or religious components are unavailable through an after school or weekend program.
[162] I agree with Price J.; “absent a compelling reason for the child to attend a private school, a public school [is] the default location for the child to receive an education.”[^13] I am not prepared to order the father to contribute to the child’s ongoing private school educational expenses.
[163] If the mother incurs other section 7 expenses on the child’s behalf including but not limited to orthodontics, medical/health expenses, one extra-curricular activity per term, and/or childcare, the parties shall share these expenses on a 50/50 basis. Any post-secondary expenses (after deducting any OSAP loans/bursaries/scholarships) shall be shared in proportion to the parties’ incomes at the time the expense is incurred.
[164] The section 7 expenses shall be enforceable by the Family Responsibility Office (“FRO”). The mother may serve the father with the receipts and a FRO statement of arrears with the claimed share of the expenses.
[165] The child support and section 7 expenses shall end for the child when she is no longer a “child of the marriage” as defined in section 2(1) of the Divorce Act.
VIII. RESTRAINING ORDER
[166] Pursuant to section 46 of the Family Law Act, a court may make an order restraining a person from communicating with their former spouse or attending within a specified distance of one or more locations.[^14]
[167] The threshold question to determine if a restraining order should be ordered is as follows: does the mother have reasonable grounds to fear for her own safety or for the safety of any child in her lawful custody?[^15]
[168] The mother’s evidence in support of a restraining order is set out in detail in paragraph 79 above.
[169] The mother’s request for a temporary restraining order came before the court on June 7, 2023. Macpherson J. made an order, on short notice, restraining the father from contact with the mother, the child, and the mother’s counsel (with limited contact permitted). He determined that the father’s behaviour was increasingly unpredictable and concerning since the trial had been scheduled. For example, the father called the police on April 23, 2023, and reported the mother as being suicidal and homicidal. The father threatened to take matters into his own hands if no one would listen to him, and he threatened to take the child away forever.
[170] Macpherson J. found that the father’s behaviour was completely inappropriate, and concerning. The father’s email texts were vulgar, disgusting, and pitiful. The barrage of telephone calls to the mother from unknown numbers were meant to intimidate and frighten her. He was satisfied that the father’s behaviour was erratic and worrisome. The restraining order was granted as the mother had reasonable grounds to fear for her safety and for the safety of the child.
[171] The mother’s updating affidavit sworn September 5, 2023, describes concerning incidents that took place in the weeks before the initial attendance for the urgent motion (June 7, 2023) and immediately thereafter. She describes being afraid of the father and worried about returning to her home. The incidents are set out below:
(a) The father acted aggressively on the date of the May 2023 conference. He threatened to take matters into his own hands. A special constable was needed to attend at court and escort the mother and her counsel to their cars.
(b) There were ongoing problems with calls made by the father from the unknown number and the 302 number, including vulgar and threatening statements.
(c) On June 2, 2023, the father stalked the mother by attending and sitting outside of her home for two or three hours watching the landlord’s children play (leading the landlord to call the police).
(d) On June 3, 2023, the father parked outside of the mother’s sister’s home, swore at her husband, and videotaped the incident.
(e) On June 8, 2023, the father breached the restraining order by continually calling the mother’s counsel’s office and by attending at the premises and aggressively attempting to open the locked door.
(f) The father posted videos on a YouTube channel about his rights being violated (and filmed at the Newmarket Court and YRP station).
[172] The restraining order motion returned to court on June 21, 2023. Although the father was provided the opportunity to file responding materials, he failed to file materials or to attend. The restraining order was continued and has remained in place since that time. The father’s parenting time continues to be suspended.
[173] Since June 21, 2023 (and until the trial), the father did not communicate with the mother or child. The mother observed that the child enjoyed a summer of peace without any harassment.
[174] I decline to accept the father’s evidence that he did not call the mother using unknown numbers or the 302 number. He is not credible on this issue, particularly since the calls stopped once the restraining order was issued.
[175] The father’s aggressive behaviour during the trial itself (including a raised voice), in the presence of a police officer, supports a finding that he cannot control his anger even in a “safe” place.
[176] The father did not deny making demeaning and threatening statements in his text and other communication.
[177] The father testified that he can “get the child within six months”, irrespective of the court order, and in accordance with his religion. It is unclear what this statement means. However, this implies that the father may be planning to violate the court order.
[178] Although the father testified that he did not physically assault the mother during a family meeting that pre-dated the separation, he did not deny the history of physical violence described by the mother.
[179] In Yenovkian v. Gulian,[^16] Justice Kristjanson provided a summary of important considerations:
A restraining order will be made where a person has demonstrated a lengthy period of harassment or irresponsible impulsive behaviour with the objective of harassing or distressing a party. There should be some persistence to the conduct complained of and a reasonable expectation that it will continue without court involvement. See: Purewal v. Purewal, 2004 ONCJ 1195.
[180] I find that the father has engaged in a long-standing pattern of aggressive and abusive behaviour that was and is designed to intimidate and control the mother. The verbal and written abuse, in addition to physical violence, is evident throughout the father’s interactions with the mother during and following the marriage and separation.
[181] The father has threatened to harm the mother (for whom he has no respect) and the child (whom he sees as his property).
[182] The only periods of (relative) peace took place when the father was prohibited, by criminal conditions and/or a family law restraining order, from contacting the mother.
[183] The mother has reasonable grounds to fear for her own safety and that of the child. I find that a permanent restraining order is necessary to protect the mother from emotional, verbal, and/or physical harm.
[184] The terms shall be the same as the temporary order, except that the parties exchanging letters/email four times per year (through the mother’s counsel as specified in the order) shall not cause the father to be in breach of the restraining order.
[185] On an aside, during the closing arguments the father demanded that I make a restraining order against third parties. He asked that I accept a photograph and a newspaper article in support of this request. I declined to accept the documents or make the orders. This relief was not sought in the pleadings, and there is a jurisdictional issue relating to restraining orders and third parties. There was no admissible evidence to support any restraining order other than as requested by the mother. A party cannot request new orders during closing arguments.
VIIII. COSTS
[186] As per my endorsement dated October 20, 2023, the mother filed a Bill of Costs and an Offer to Settle, by December 6, 2023. The father failed to file anything.
[187] The mother seeks full indemnity costs in the amount of $46,079.50. The litigation has been ongoing since 2021.
[188] The mother’s counsel is a 2002 call. Her hourly rate is $350. The fees and hours billed are reasonable.
[189] The father testified that he paid the sum of $14,000 in legal fees to the two lawyers who represented him at various stages of this matter. He has been self-represented for over one year.
[190] Family law litigants are encouraged to settle their disputes without resorting to the courts and to seek reasonable compromise whenever possible. Rule 18(14), 24(1), 24(5), and 24(12)(a) and (b) of the Family Law Rules deal, respectively, with the exchange and non-acceptance of Offers to Settle and frame the exercise of the court’s discretion when awarding costs.
[191] The principles guiding the court’s exercise of its discretion pursuant to the Rules are well-established. The primary objective is to enable the court to deal with cases in a fair and timely manner. Four fundamental purposes are served: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants;[^17] and (4) to ensure that cases are dealt with justly.[^18]
[192] Family law litigants must act in a reasonable and cost-effective way; they should, and will, be held accountable for the positions they take in their litigation.[^19] As observed by the Court of Appeal in Beaver v. Hill, reasonableness and proportionality frame the exercise of the court’s discretion;[^20] the amount to be awarded is what the “court views as a fair and reasonable amount that should be paid by the unsuccessful [party].”[^21]
[193] As plainly stated by Pazaratz J. in Scipione v. Del Sordo, “Who got what they asked for?”[^22]
[194] The mother was wholly successful on the parenting and restraining orders but was awarded a lower amount of child support than what she sought at trial. The father proposed that the child reside with him and was disinclined to pay any child support.
[195] The mother beat all aspects of her Offer to Settle dated March 21, 2023 (although it was served two years after the commencement of this litigation). She proposed that she retain sole decision-making and primary care while providing the father with parenting time every weekend from Friday to Sunday, as well as holiday and vacation time. The mother also offered that the father be imputed an income of $32,000 and pay 50% of the section 7 expenses. There was no request for a restraining order.
[196] However, the mother ought to have withdrawn the Offer to Settle once it became clear that a restraining order was required to protect her and the child. The mother’s position at trial was no contact. That is far from an offer that proposed weekly access.
[197] To be very clear, I would not have granted the order set out in the mother’s Offer to Settle. If the parties had presented me with such a parenting plan, I would have modified the plan to reflect the order for supervised parenting time set out above. I have the jurisdiction to do so in accordance with sections 16.6(1) and 16.5(7) of the Divorce Act. Unsupervised access at this time may well place the child at risk of physical, emotional, and/or physical harm. Such an order is not in the child’s best interests.
[198] The mother has incurred legal fees and related costs that exceed her current annual income of $40,000. She has incurred costs that were unnecessary and not affordable as this matter should have resolved long ago. While the father repeatedly advised me that he has no money, he must pay costs to the mother.
[199] This is an appropriate case for substantial indemnity. I make this determination in large part due to the father’s unreasonable behaviour, threats to the mother and her counsel during the litigation, his breach of court orders, and a lack of preparation for the trial. However, costs are not typically awarded for steps taken when costs could have been awarded at specific attendances, or where costs have already been ordered. I also take into account the fact that the mother had claims for spousal support and equalization that she did not pursue at the trial. I also consider each party’s financial circumstances.
[200] I find that costs in the amount of $33,000 inclusive of disbursements and HST is reasonable and proportionate. That amount will: (a) significantly indemnify the mother for the cost of litigation; (b) encourage settlement in other similar cases; (c) discourage and sanction inappropriate positions taken by the father; and (d) is just, particularly since the mother received virtually no child support, and she did not pursue spousal support or equalization at trial.
[201] The sum of $16,500 is enforceable by FRO on account of the fees incurred by the mother to pursue her claims for child support.
IX. DISPOSITION
Orders to go in accordance with the draft order and the restraining order signed by me this day.
If the father requests assistance from duty counsel to review the Reasons for Decision and the orders, I request that he be provided the opportunity to meet with a lawyer to do so.
All other claims made in the Application and the Answer are hereby dismissed.
The Honourable Justice A. Himel
Date:, December 13, 2023
[^1]: Grand River Conservation Authority v. Vidhya Ramdas, 2021 ONCA 815, 160 O.R. (3d) 348, at paras. 18-21.
[^2]: The mother made such an Offer to Settle in March 2023 but it was never accepted.
[^3]: Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), s. 16.
[^4]: McBennett v. Danis, 2021 ONSC 3610, at paras. 84-86.
[^5]: Publicly funded services were not an option due to possible waiting lists and delays.
[^6]: I decline to accept the father’s position. The OCL clinician repeatedly attempted to explain her role in a telephone call in early November, and at the trial. He refused to accept it and was argumentative and accusatory. The OCL clinician also explained in the report (and at the trial) that the child has a close and loving relationship with the mother and step-father. The child has her own bed at that home. The clinician did express concerns that the mother is sharing information about the case and the conflict with the child, which needs to stop.
[^7]: Armstrong v. Coupland, 2023 ONSC 5451: see also I.A. v. M.Z., 2016 ONCJ 615.
[^8]: V.S.J. v. L.J.G. (2004), 5 R.F.L. (6th) 319 (Ont. S.C.).
[^9]: Federal Child Support Guidelines, SOR/97-175.
[^10]: A.E. v. A.E., 2021 ONSC 8189, at para. 176.
[^11]: Drygala v. Pauli (2002), 61 O.R. (3d) 711, at para. 28 (Ont. C.A.).
[^12]: Ibid, at para. 45.
[^13]: Roberts v. Symons, 2023 ONSC 4757, at para. 76.
[^14]: Family Law Act, R.S.O. 1990, c. F.3, s. 46.
[^15]: P.F. v. S.F., 2011 ONSC 154.
[^16]: Yenovkian v. Gulian, 2019 ONSC 7279, at para. 45.
[^17]: Serra v. Serra, 2009 ONCA 395, at para. 8.
[^18]: Mattina v. Mattina, 2018 ONCA 867, at para. 10.
[^19]: Heuss v. Sarkos, 2004 ONCJ 141; Peers v. Poupore, 2008 ONCJ 615.
[^20]: Beaver v. Hill, 2018 ONCA 840, at para. 4.
[^21]: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291, at para. 24 (Ont. C.A.).
[^22]: Scipione v. Del Sordo, 2015 ONSC 5982, at para. 6.