Court File and Parties

COURT FILE NO.: FC359/14-01 DATE: November 16, 2023

ONTARIO SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Kristin Michelle Moses, Applicant William R. Clayton, for the Applicant

- and -

Alan Anthony Weekes, Respondent Kimberly L. Doucett, for the Respondent

HEARD: September 19, 20, 21, 22 and 25, 2023

SAH J.

Reasons for Decision

Overview

[1] In 2016, the parties settled all issues relating to the then three-year-old child, Hershall Joseph Moses-Weekes, born October 5, 2012 (the “child”).

[2] The terms of their Minutes of Settlement were included in a Final Order made by Korpan J. on January 26, 2016 (the “operative order”).

[3] The operative order also includes provisions relating to decision-making, holiday time, other issues incidental to parenting, and child support.

[4] The operative order provides that the parenting schedule may be reviewed when the child turns seven years of age.

[5] Shortly after the child turned eight years old, the respondent commenced a Motion to Change seeking to vary his parenting time. The applicant seeks a variation of child support and a change in the way the parties exchange the child.

Background

[6] The parties never married. The Children’s Law Reform Act, R.S.O. 1990, c. C.12, (the "CLRA"), applies to the parenting time schedule and the Family Law Act, R.S.O. 1990, c. F.3, (the “FLA”), applies to the issue of child support.

[7] The relevant portions of the 2016 operative order are as follows:

2. THIS COURT ORDERS THAT the child shall be in the Respondent Alan Anthony Weekes' care: a) Alternate weekends as follows: i. When Kristin is working day shift from Friday to Sunday, from Friday at 5:00 p.m. or from school to Sunday at 7:30 p.m.; ii. When Kristin is working night shift from Friday to Sunday, from Friday at 6:30 p.m, until Monday at 9:00 a.m. or return to school; b) overnight visit(s) each week: i. When the Applicant Kristin Michelle Moses is working day shift (7:00 a.m. to 7:00 p.m.) on Tuesday, from 6:30 a.m. on Tuesday until 9:00 a.m. or school on Wednesday; ii. When the Applicant Kristin Michelle Moses is working from night shift (7:00 p.m. to 7:00 a.m.) on Monday and Tuesday, from 6:30 p.m. on Monday until 9:00 a.m. or school on Wednesday; iii. When the Applicant Kristin Michelle Moses is working day shift (7:00 a.m. to 7:00 p. m.) on Wednesday, from 6:30 a.m. on Wednesday to until 9:00 a.m. or school on Thursday; iv. When the Applicant Kristin Michelle Moses is working from night shift (7:00 p.m. to 7:00 a. m.) on Wednesday, from 6:30 p.m. until 9:00 a.m. or school on Friday; c) This Schedule is set out in chart form as follows:

MON	TUES	WED	THURS	FRI	SAT	SUN
Work	Work 7 a.m. to 7 p.m. 6:30 a.m. drop off to Carol	Drop off at 9:00 a.m. or school	Work 7 a.m. to 7 p.m. Pick up at school or 5:00 p.m.	Work 7 a.m. to 7 p.m. Alan’s weekend	Work 7 a.m. to 7 p.m.	Till 7:30 p.m. with drop off

MON	TUES	WED	THURS	FRI	SAT	SUN
Work 7 a.m. to 7 p.m. 6:30 a.m. drop off to Carol	Work 7 a.m. to 7 p.m. drop off at 9:00 a.m. or school

MON	TUES	WED	THURS	FRI	SAT	SUN
Work 7 p.m. to 7 a.m. Pick up at 6:30 p.m.	Work 7 p.m. to 7 a.m. Drop off at school or 9:00 a.m.	Work 7:00 p.m. to 7:00 a.m. Pick up at 6:30 p.m.	Work 7:00 p.m. to 7:00 a.m. Alans’s weekend	Work 7:00 p.m. to 7:00 a.m. Alans’s weekend

MON	TUES	WED	THURS	FRI	SAT	SUN
Drop off at school or 9:00 a.m.	Work 7 p.m. to 7 a.m. 6:30 p.m. pick up by Alan	Work 7 p.m. to 7 a.m. Drop off at 9:00 a.m. or school

8. THIS COURT ORDERS THAT exchanges for the purposes of access may take place through Carol Weekes or Susan Talbot.

9. THIS COURT ORDERS THAT Erica Shugar shall be entitled to pick up or drop off the child and communicate with the Applicant Kristin Michelle Moses.

10. THIS COURT ORDERS THAT the Respondent Alan Weekes shall pay the Applicant Kristin Moses child support for the child, namely Hershall Joseph Moses-Weekes born October 5, 2012, in the table amount of $836.00 per month in accordance with the Child Support Guidelines for an Income of $94,410 (the Respondent Alan Weekes’ income for child support purposes shall be his T4 income less his union dues) and such payments shall be made on the first day of each month commencing on January 1, 2016, for so long as the child is enrolled in a full time program of education and unmarried, pursuant to section 31 of the Family Law Act, R.S.O. 1990, c. F.3. Child support shall be paid on or before the 1st day of each month.

[8] At the time the operative order was made, the respondent was employed as a corrections officer at Elgin Middlesex Detention Centre and the applicant was employed as a nurse at London Health Sciences Centre.

[9] There is a dispute as to whether the parenting schedule was premised around the parties’ work schedules (both working continental shifts at the time) or if it was driven by the applicant's work schedule.

[10] There is no dispute that the objective was to maximize the time the child was in the care of each party.

[11] The Motion to Change was initiated in December 2020, when the child was eight years old. He is now eleven years old.

[12] The applicant still works as a nurse. The respondent has been off work for some time and is in receipt of Workplace Safety and Insurance Board benefits (“WSIB”).

[13] The respondent resides with his partner, Ms. Shugar, with whom he has four other children.

[14] The applicant is not presently partnered. She has no other children. Her previous partner, Mr. Harris, testified at trial as part of her case.

[15] Effective July 2021, the applicant worked straight days. The operative order’s parenting schedule was modified by her to reduce the respondent’s time with the child.

[16] The modified parenting schedule was addressed at a motion brought by the respondent and heard by Moore J. on August 24, 2022. The respondent was granted an additional overnight on his alternate weekend parenting time.

[17] The parties agreed to engage the services of Ms. Kristin Hales for the completion of the Voice of the Child Report (“VCR”). The report is dated April 27, 2023. The respondent disputes the VCR.

Position of the Parties

[18] The respondent seeks a variation in the parenting schedule. He is requesting a schedule which would have the child in his care, on week one, from Monday after school to Wednesday morning and from Friday after school to Monday morning; on week two, the respondent proposes the child be in his care from Wednesday after school to Friday morning.

[19] The applicant seeks to vary the parenting time schedule in a manner that reduces the respondent’s time with the child. She asks that his parenting time be reduced to alternate weekends and one mid-week visit for a few hours.

[20] She also asks for variation in the method of exchanges/the pick-up and drop-off schedule.

[21] A material change analysis is not required because the operative order contemplated a review when the child turned seven.

[22] The applicant asks for variation of table support from January 1, 2022 forward based on the income from three sources: rental income, employment income and WSIB.

[23] The respondent claims that the court has insufficient information to determine retroactive support and that his child support obligations for 2023 should be based on his grossed up WSIB income.

Issues

[24] The issues to be determined are as follows:

1. What parenting time schedule is currently in the child’s best interest?
2. Does the method of exchange need to be varied?
3. Is this an appropriate case for a variation of child support retroactive to January 1, 2022 and ongoing? If so, what is the appropriate amount of support owing?

Credibility Assessment

[25] The credibility and reliability of the parties are important considerations when a request is made that the court accept one version of events over the other.

[26] Not uncommon to most cases, each party challenged the other’s credibility in various areas.

[27] The applicant attempted to call into question the respondent’s credibility by painting a picture of a gang member, rule breaker, troublemaker, bully, narcissist, and cheater.

[28] She attacks his credibility by focusing on a) his failure to file his 2022 income tax return, b) several omissions on his sworn financial statement, c) noted discrepancies from his questioning, and d) an incident dating back to 2000 as referenced in a 2001 Globe and Mail article.

[29] The respondent attempted to discredit the applicant by focusing on inconsistencies in her evidence regarding a) the change in parenting time, b) her influence over the child, and c) withholding of information from the respondent about the child.

[30] As articulated by Jarvis J. in Jayawickrema v. Jayawickrema, 2020 ONSC 2492, at para. 28:

… the assessment of witness credibility is an inexact science, impossible to articulate with precision. For example, a witness may impress the court with the coherence and logic, or common sense, of their narrative but be unreliable due to their interest in the outcome of the case or the lack of probative information. Or a witness may be so interested in a case that they are incapable of making an admission or facilitating the disclosure of information that they perceive as helpful to the other party and harmful to their case. These affect the weight to be given to that evidence. There is, quite simply, no one-size-fits-all template. Several of the many considerations relevant to the weighing and assessment of witness credibility and reliability, and relevant to his case, were comprehensively reviewed in Al-Sajee by Chappel J. who aptly observed that,

…the judge is not required by law to believe or disbelieve a witness's testimony in its entirety. On the contrary, they may accept none, part or all of a witness's evidence, and may also attach different weight to different parts of a witness's evidence [Citations omitted.]

[31] I find the following.

• The respondent is not a gang member, troublemaker, or bully. He was for several years a correctional officer and he does not have a criminal record.
• I place no weight on the Globe and Mail article from 2001. The incident referred to therein predates the child's birth by 11 years. The respondent and the author of the article portray the events differently. I cannot conclude that the respondent is not being forthright or honest about the incident on his evidence only. Moreover, this evidence is irrelevant to determining what parenting schedule is in the child's best interest at this time.
• Questioning in the transcript was raised in relation to three main issues, including how much time the respondent’s food truck business occupied, whether he spoke to the child about a change in the schedule, and his perception about whether a review of the operative order means the same as a change.
• The inconsistencies in the respondent’s evidence at trial, compared to answers given in questioning, reflect a lack of attention to detail and imprecision of language. I do not find this to be conclusive that he always gives self-serving answers.
• The respondent’s failure to file his 2022 income tax return in the face of support claims is unacceptable. An adverse inference shall be drawn against him when determining the child support issues.
• There is lack of clarity about the respondent’s financial situation resulting from several omissions on his most recently sworn financial statement.
• There is a lack of disclosure with respect to his corporation, Bigg Weekes Inc., the sale of an asset and the reflection of funds received, and no details about which expenses charged against corporate revenue included personal benefit to him not charged to his shareholder account and not reported in his income.
• Further, there is lack of clarity about the respondent’s income and expenses in relation to the home he occupies, owned by his partner, Ms. Shugar, and the rental he owns next door which is occupied, in part, by his mother rent-free.
• The imprecision contained within the respondent’s financial disclosure reflects carelessness and a disregard for the rules of the court, and results in an adverse inference being drawn, the extent of which is particularized below.
• There were some inconsistencies in the applicant’s evidence. The applicant testified that Ms. Hull, the child’s registered psychotherapist, insisted that she stay for the child's therapy sessions. Ms. Hull testified she did not insist, it was the child who preferred she stay.
• The applicant testified that the child “runs” with approximately 20 friends, while Ms. Hull gave evidence that the child reported he was not good at making friends or keeping them.
• The applicant also blames the respondent, testifying that the child began exhibiting issues when the respondent modified the parenting schedule in October 2021, however testifying later that she changed the schedule in September to accord with her working schedule.
• The undertone of the applicant’s evidence was rooted in her alleged fear of the respondent, whom she attempted to portray as a bully. However, in several emails tendered as evidence, the applicant writes freely, frankly, unfearfully, and at great length (pages) about issues involving her personal life, and the child. By her own admission, she “over-shared” information. I do not accept that she is fearful of the respondent.
• The applicant did not advise the respondent that she took their child to a psychotherapist. According to the child therapist, the sessions would have included the respondent eventually but, after four sessions, the applicant stopped taking the child.
• The applicant claimed she did not tell the respondent about the therapy because of her concerns that the child was scared and uncomfortable in his home. Notwithstanding this fact, in the summer following the conclusion of the therapy sessions, the child spent significant periods of time with the respondent. The applicant is not seeking a change in the holiday parenting schedule which provides the respondent significant parenting time, roughly on an equal basis.

[32] Both parties were inconsistent in their evidence. The applicant presented exaggerations at times and the respondent was not forthright in his financial disclosure. Neither party was an entirely straightforward and credible witness.

[33] In the circumstances of this case, I will attach different weights to different parts of the parties’ evidence.

[34] Where their evidence differs, I will consider the uncontested evidence and, if appropriate, apply common sense.

General Legal Principles

Parenting Time

[35] In allocating parenting time, I am required to give effect to the principle that the child should have as much time with each parent as is consistent with his best interests: see s. 24(6) of the CLRA.

[36] In fact, his best interests are the only requirement the court is to consider: see s. 24(1) of the CLRA.

[37] In determining his best interests, I am required to consider all factors related to the child’s circumstance and, in doing so, must give primary consideration to his physical, emotional and psychological safety, security, and well-being: see s. 24(2) of the CLRA.

[38] Further, in determining what is in the best interests of the child, I must not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of the person’s parenting time with respect to the child: see s. 24(5) of the CLRA.

[39] The legislation sets out various factors to consider, and each, to the extent relevant to the facts of this case, will be analyzed below.

[40] The list of best interests considerations in the CLRA is not exhaustive. See: White v. Kozun, 2021 ONSC 41; and Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs, and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.

[41] The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. See: Gordon v. Goertz.

[42] Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child. See: E.M.B. v. M.F.B., 2021 ONSC 4264; and Dayboll v. Binag, 2022 ONSC 6510.

[43] In considering a child’s best interests, it will often be important to determine if a parent will follow the terms of a court order. See: Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 201; and Seyyad v. Pathan, 2022 ONCJ 501.

Child Support

[44] Subsection 3 (1) of the Child Support Guidelines, O Reg 391/97, (the “Guidelines”), states:

Presumptive Rule

3 (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is:

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

[45] Section 2 of the Guidelines provides that “income” means the annual income determined under ss. 15 to 20.

[46] Where the parties do not agree on what the payor’s income is, s. 16 of the Guidelines states that “[s]ubject to sections 17 to 20, a parent’s or spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.”

[47] Where a party fails to comply with their disclosure obligations as provided in s. 21 of the Guidelines and provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them: see Gray v. Rizzi, 2016 ONCA 494; Szitas v. Szitas, 2012 ONSC 1548; and Woofenden v. Woofenden, 2018 ONSC 4583.

Analysis of Evidence and Findings

Parenting Time

Child’s needs for stability

[48] At age eleven, after three years of litigation, the child requires a resolution that will provide him with the stability from which most children thrive.

[49] The applicant submits that stability involves spending most of his time in her neighbourhood and in her home.

[50] The respondent submits that his proposed schedule would allow the child an opportunity to settle into a routine in both homes, during the week and on weekends, and maximizes the child’s time with both parents having regard for the applicant’s work schedule.

[51] Stability is not always synonymous with change.

Nature and strength of the child’s relationship with each parent and others (siblings and grandparents)

[52] The child has a relationship of significance with both the maternal and paternal grandmothers.

[53] The maternal grandmother is involved in his care before and after school, when the applicant is working. The child is comfortable in her care.

[54] The paternal grandmother lives next door to the father and cooks the family Trinidadian food, which the evidence supports the child enjoys. The two grandmothers play an important role in the child's life.

[55] While the child has no siblings when in the care of the mother, he has four half-siblings when with the father.

[56] The respondent described his to be a chaotic blended family. The evidence supports that the child is close with his half-siblings, they go fruit picking together, and attend sporting events. The subject child to this litigation is the eldest. I accept that he has a good relationship with his siblings and enjoys his time with them. He feeds and holds the respondent’s new baby and enjoys being a big brother.

[57] At the respondent’s home, they follow a regimented schedule involving waking up early to get everyone dressed, fed, and out the door for school. After school, the children have responsibilities after which they can partake in privileges, which include playing outside and screen time.

[58] The respondent’s family regularly participates in movie nights and vacations at indoor water parks.

[59] The child is also very closely bonded with the mother. The child is the centre of her world. They share a warm and loving relationship. The applicant uses her vacation time to maximize the time she can personally look after the child.

[60] The child reported positive things about both parents to Ms. Hales, author of the VCR.

[61] He also reported that he likes spending time with his siblings at his father's home.

[62] The child is fortunate to have two parent who love him and want to spend more time with him.

Each parent’s willingness to support the development and maintenance of the child’s relationship with the other

[63] The respondent submits that the applicant unilaterally reduced the child's time with him. The applicant does not deny varying the parenting time, claiming it was merely adjusted to accommodate the changes to her work schedule.

[64] The applicant reads para. 2 of the operative order holistically, citing that the governing matter is the applicant's actual work schedule from time to time.

[65] I disagree with the applicant's interpretation of the order. The order does not state that the schedule can be varied, from time to time, depending on the applicant’s work schedule. By contrast, para. 3 of the operative order states that the parenting schedule may be reviewed when the child is seven years of age.

[66] If it had been the intent of the parties, at the time of settlement in 2016, for the parenting schedule to change fluidly with changes to the applicant’s work schedule, it would have said as much.

[67] Para. 2 of the operative order only refers to the applicant’s day shifts and night shifts. The operative order does not explicitly state that if the applicant no longer works night shifts, the schedule can be changed, nor does it state how the schedule would change.

[68] The applicant did not take steps to vary the operative order when she began working straight days or even when the child turned seven. She ought to have. It would have been the preferred approach, as the terms of an order remain in place unless varied or terminated.

[69] Based on her decision to reduce the respondent’s time with the child, I do not find the applicant is willing to support the development and maintenance of the child's relationship with the respondent.

[70] I also come to this conclusion having considered the evidence she tenders in support of her position. The applicant relied on the affidavit evidence of two co-workers/ friends, Ms. Tran and Ms. Bettencourt. Both affidavits contained several of the statements made by the child, which, for reasons set out below, shall not be considered.

[71] One of these witnesses gave evidence that the child was stressed, downcast, sombre, morose, despondent. The other describes the child as being demonstrative and quite pugnacious when expressing his aversion to spending time with his father. These descriptions of the child are not corroborated by any other witness. The evidence was one-sided, and the witnesses are aligned with the applicant. They did not observe the child with the respondent, or witness any of their interactions. Their evidence did little to nothing to advance the case.

[72] The only portion of their evidence that I accept is that the child has a warm, loving and caring relationship with his mother, a fact not disputed by the respondent.

[73] The mother surrounds herself with friends who feed into the narrative she creates—that the respondent is a bad person/father and that the child hates and fears him. She has called the police since the operative order was made. This is not evidence of a person who is willing to support the development and maintenance of the child’s relationship with his father.

[74] The father has also done some things that call into question his willingness to support maintenance of the child’s relationship with his mother. He called the police after an exchange.

[75] He said he called the police because he did not receive a reply to the text inquiring whether the child was at school after sending a screenshot from the school that he was missing that day.

[76] These parties need to set aside their differences and check their behaviour or else there will be deleterious effects to their child that may be irreversible.

[77] There is no dispute that the operative order was generally followed from 2016 to about 2021.

[78] Once the applicant’s work schedule changed, the applicant took it upon herself, despite a court order, to change the parenting schedule. The respondent reacted by overholding. The effect of this was a reduction in the respondent’s time with the child.

[79] When the matter was brought before the court on a motion, the respondent was awarded an additional night of parenting time.

[80] The same weekly schedule has been in place since August 2022, after the motion was heard.

[81] Currently, the child is in the respondent’s care, on week one, from Tuesday at 6:30 a.m. until Wednesday morning drop off at school and from Friday [time] to Monday drop off at school; and on week two, from Wednesday at 6:30 a.m. until Thursday morning return to school.

[82] There is no dispute that the child spent up to three weeks of uninterrupted parenting time with the respondent during the summer holidays in 2022 and 2023, and shared parenting time over the Christmas school break in 2022.

Child’s views and preferences

[83] The child's views and preferences came into evidence in three ways: a) through the evidence of the applicant’s witnesses, including her friends/ co-workers and mother, b) through the child’s therapist, and c) through the VCR.

[84] I will address this evidence in turn after a brief review of the law and the parties’ positions.

[85] The respondent submits the child has been directly and indirectly influenced by the applicant and the maternal grandmother. He submits that the views and preferences expressed in the VCR ought not be ignored but instead be given due weight under the circumstances. He requests that any views and preferences allegedly reported to the child’s therapist, Ms. Tran, Ms. Bettencourt and the maternal grandmother be given little to no weight.

[86] The VCR is disputed by the respondent on the basis that it lacks information and details about the context of the child's comments or follow-up questions to determine the reasons for the child’s preferences, and that it fails to disclose where the child obtained information that he shared with Ms. Hales.

[87] The applicant relies on the VCR.

[88] The applicant seeks to admit: 1) nine statements made to the child’s therapist, 2) two statements made to Ms. Tran, 3) one statement made to Ms. Bettencourt, and 4) seven statements made to the maternal grandmother. All statements are sought to be admitted for truth of content and state of mind.

[89] In Decaen v. Decaen, 2013 ONCA 21, the Ontario Court of Appeal set out the following factors in assessing the significance of a child’s wishes:

i) whether both parents are able to provide adequate care; ii) how clear and unambivalent the wishes are; iii) how informed the expression is; iv) the age of the child; v) the child’s maturity level; vi) the strength of the wish; vii) the length of time the preference has been expressed for; viii) practicalities; ix) the influence of the parent(s) on the expressed wish or preference; x) the overall context; and xi) the circumstances of the preferences from the child’s point of view[.]

[90] As observed by Lemon J. in a case involving ten-year-old twins, T.L.B.L. v. T.E.M., 2021 ONSC 8235,

[207] All litigation involving children must recognize that children have rights that are independent from those of their parents and others.

[208] Those rights are recognized in different manners in legislation addressing children’s matters. When, as in this case, the court will be granting a parenting order, one of the factors to consider in the best interests of the child test is the child’s views and preferences, set out in section 24(1) and (2), Children’s Law Reform Act.

[209] Our system discourages children being present in court proceedings. Hence, other methods are used, particularly the appointment of the Office of the Children’s Lawyer, to ensure the children’s views and preferences are presented. In so doing, the child’s “right to be heard”, as set out in Article 12 of the United Nations Convention on the Rights of the Child (“UNCRC”), is met.

[91] In the absence of an exception, the child’s out-of-court statements are inadmissible. Hearsay is an out-of-court statement offered for the truth of its contents.

[92] It was agreed that the evidence regarding the child’s statements would be proffered throughout the trial. It was understood that counsel, in closing submissions, would make oral argument about the admissibility of each proffered statement. Counsel for the applicant produced a chart setting out each statement and the basis on which each statement was sought to be submitted.

[93] Oral argument in relation to each statement was scant. Little to no authority was provided. The following principles will be considered:

a) In general, hearsay is not taken under oath, the declarant’s demeanor when making the statement is not observed, and hearsay is not tested in cross-examination: R. v. Bradshaw, 2017 SCC 35 at para. 20.

b) Hearsay may be inaccurately recorded, and the perception, memory, narration or sincerity of the declarant is not easily investigated: R. v. Khelawon, 2006 SCC 57, at para. 2.

c) The presumptive inadmissibility of hearsay may be overcome in cases where its proposed admission meets the requirements of necessity and threshold reliability and satisfies the principled approach to hearsay: Bradshaw at paras 22-23; Khelawon at paras. 42 and 47; R. v. Khan, [1990] 2 SCR 531, at paras. 29-30; Ward v. Swan, at paras. 2-3; Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124, at paras. 9-17.

d) The requirement for threshold reliability requires a determination of whether the child’s hearsay statement is sufficiently reliable to be admitted into evidence: Bradshaw at para. 24; Khelawon at para. 49; G.S. at para. 12.

e) Threshold reliability requires a consideration of all relevant factors surrounding the statement, such as the timing of the hearsay statement, the demeanour of the witness that is testifying, the child’s personality, intelligence and understanding, and the absence of any reason to expect fabrication, which are non-exhaustive factors: Y. at para. 134; Khelawon at para. 51; Khan at para. 30.

f) The court must be satisfied that the statement was accurately and objectively reported, and that the child was not manipulated, coerced or pressured into making the statement: Ward at para. 15; Children’s Aid Society of Metropolitan Toronto v. M.(R.), [1992] OJ No 1097(CJ), at paras. 15-16.

g) The court should also consider whether the witness that is giving evidence to provide the out-of-court statement has a vested interest in the outcome of the case; Ward at para. 17.

h) A hearsay statement is admissible if substantive reliability is established, namely that the statement is inherently trustworthy given the conditions when it was made and any corroborating evidence: Bradshaw at para. 30; Khelawon at paras. 4, 62 and 94-100; G.S. at para. 16.

[94] No submissions were made on the issue of necessity. Neither party asked the child to testify at trial. I find that element has been met as it would be inappropriate for this young child to give oral evidence.

[95] I now turn to determine if his statements are reliable.

Ms. Tran, Ms. Bettencourt, & the maternal grandmother

[96] The applicant seeks to admit the following statements through the above-noted witnesses: “I hate my dad”, “I don't like my dad because he makes me clean the toilet when no one else has to”, “I don't like my dad”, “I don't like going there”, and “he is mean”.

[97] Through the maternal grandmother’s evidence, the following is sought to be admitted: “daddy is having dates with me”, stating that he does not want to go to his father’s, “why does daddy do this”, “daddy has lots of kids and mom only has me”, “so, he called the police, that’s it, I am never going there again”.

[98] I have not included statements that were not brought out in the grandmother’s evidence but included in the applicant’s chart. I have also omitted the double hearsay.

[99] The applicant seeks to admit these statements for the truth of their content and under the state of mind exception.

[100] The applicant has not established the factual foundation and circumstances that could establish the statements’ reliability.

[101] The applicant failed to describe to child’s contemporaneous physical, mental or emotional state, did not satisfy the court that the statements were accurately and objectively recorded, and did not provide details that would sufficiently guarantee their trustworthiness.

[102] The statements referred to above will not be admitted.

The child’s therapist

[103] I have summarized the statements the applicant wishes to admit from the child’s therapist: “struggling with math, dad”, father “doesn’t pay enough attention”, agreement that there is a lot of emotion around dad, “isn’t comfortable” at his dad’s, would be comfortable if he “didn’t have a dad”, doesn’t “want to go to dad’s for Easter weekend”, dad makes him shower again and not believing that he had one at mom’s house, explanation that his father’s home is a toxic environment and wishes to avoid going but it is out of his and his mom’s control.

[104] These statements are sought to be admitted for the truth of their content and under the state of mind exception.

[105] Some of these statements do not properly constitute state of mind statements. They appear to describe past events. Those will not be admitted.

[106] I found Ms. Hull’s evidence to be fair and balanced. I do not doubt that the statements were accurately and objectively recorded. However, I do have concerns about the circumstances which, in my view, can undermine the reliability of the child’s statements.

[107] The child was sitting right beside his mother during the therapy sessions. According to Ms. Hull, they were practically touching. In two of the four sessions, the child witnessed the mother cry and become sad while the child was speaking, and he asked if she was okay. She may have tried to hide it, but she could not. If the therapist noticed, the child noticed.

[108] The therapist may well have approved her attendance and the child may well have requested that his mother stay; however, it cannot be said that there was zero chance of influence by the applicant. She decided to register the child for therapy, she took him to the session, she sat with him during the session, she cried, she was not neutral—and the child observed this. This factor undermines the reliability of those specific statements.

[109] The therapist also tendered evidence in the form of documents filled out by the child entitled “About Me”, intended to help differentiate between serious problems and less significant problems, and a ratings chart relating to the child’s feeling at his mother’s house, at school, and at his father’s house.

[110] I have considered the entirety of the child’s statements, written and oral, proffered through the therapist. Portions of the evidence that I admit and rely on have been referred to in this decision.

The VCR

[111] The child reported that he did not want to hurt either parent’s feelings. He reported being concerned with what his father might say or do after he received the report.

[112] His comments are reasonable and to be expected.

[113] The most relevant portion of the VCR is where the child states he did not want his parents to argue about the schedule or other issues, and instead, would like them to talk about any issues relating to him, including football, together when he is not there, and cooperate on the outcome.

[114] This child has been placed in the middle of a dispute between his parents and he wants it to stop.

[115] Regrettably, the parents have not been able to cooperate on an outcome and so this court will make an order, based on the evidence before it, taking into consideration the child’s views as expressed within the VCR.

[116] At the time of his interviews with Ms Hales, the child was ten years old. Neither party disputes his level of intelligence or maturity.

[117] The child expressed that he does not want the current schedule to change and stated that he wishes the schedule to remain the same.

[118] The current schedule is not what is proposed by either parent.

[119] The child also expressed a preference to see each parent after school so that he does not have to get up early in the morning to be dropped off at school. Neither party wishes to keep the 6:30 a.m. drop offs as part of the schedule going forward.

[120] The respondent claims the child was influenced by the applicant. However, I accept Ms. Hales’ evidence on this point. Ms. Hales has been a panel lawyer with the Office of the Children’s Lawyer since 2001 and has conducted approximately 40 VCRs in the last three year.

[121] She testified that the child had strong and consistent views over the course of her two meetings, and there was no indication of cognitive functioning which would change the outcome of the report.

[122] She further testified that there was no indication the child was coached, that he discussed things he observed first-hand and that he put them in his own words.

[123] I do not accept the position taken by the respondent regarding his dispute of the VCR.

[124] In response to the lack of information and details providing context for the child's comments, Ms. Hales testified that sometimes a child provides details, and sometimes they do not; the purpose of the report is simply to state what the child said.

[125] She further testified that it is not her role to cross-examine the child. Indeed, the purpose of a VCR is not to probe, question or consider context. It is not an evaluative report. VCRs serve the limited purpose of summarizing the child’s wishes or views with respect to the issues.

[126] When a VRC cannot assist parties by providing a better understanding of the child’s views and hopefully move to resolution, it serves to inform the court.

[127] In this case, the VRC did just that. It served as a useful tool to “hear” the child’s voice on the parenting issues, and I accept the stated views expressed therein. It is also the most current evidence before the court regarding his views and preferences.

Request for Judicial Notice

[128] Counsel for the applicant requested that this court take judicial notice that in schools, and elsewhere, consideration is given to the views and preferences of children as young as five or six years old regarding gender identity or gender expression. It was argued that the now eleven-year-old child subject to this litigation is entitled to be “taken seriously” with respect to views and preferences as to how he wants to live on a day-to-day basis.

[129] The applicant went on to argue that the court should recognize the trend to give weight to children’s views and preferences at a young age regarding pronoun preference and should consider the anomalous situation where this child’s views as to his residency pattern be given little weight, while his gender expression, if it were applicable to this case, would be given full weight.

[130] I have considered this argument but find it unnecessary to undergo an analysis given the weight I place on the child’s views and preference as expressed to Ms. Hales, which are not disputed by the applicant.

Cultural, linguistic, religious and spiritual upbringing and heritage

[131] The child is biracial. With the respondent and the paternal grandmother, he is exposed to his cultural heritage, which includes Trinidadian foods.

[132] Evidence was tendered regarding racial slurs at the child’s school. This unfortunate reality is one that the child is required to live with for the rest of his life. It is important to foster and promote his cultural heritage by maintaining a strong connection with his father and his father's side of the family.

Plan for care & ability and willingness of each party to care for & meet the needs of the child

[133] The applicant has been working straight days since July 2021. I accept that her work schedule is as follows: on week one from 7:00 a.m. to 7:00 p.m., Monday, Tuesday, Friday, Saturday, and Sunday; and on week two from 7:00 a.m. to 7:00 p.m., Wednesday and Thursday.

[134] The applicant relies on the assistance of her mother, who does not live far. There is no evidence of a proposed change in housing or the child’s school.

[135] The respondent is supported by Ms. Shugar and his mother. His employment situation is in a state of flux. He has been off on a workplace-related injury for two years. He is currently in the work reassignment programme and WSIB is looking for other employment option.

[136] The respondent testified that he could provide full-time care for all his children and that his injuries do not impact his ability to care for them. Any new employment would be within 10 kilometres of the Elgin Middlesex Detention Centre, where he previously worked.

[137] When the child is in the care of the respondent, he will be driven to and from school. He walks when at the applicant’s home.

[138] The child gets 100% undivided attention from the applicant when in her care. With the respondent, the attention is divided, and the focus is not singularly on the child. This is an adjustment for the child but not one that is contrary to his best interests.

[139] At the respondent’s home, the child is required to complete chores and share in familial responsibilities. Again, this adjustment can be beneficial to the child and is not negative.

[140] Both parents are competent and loving and can meet the child’s needs, albeit in vastly different environments.

Ability and willingness of each party to communicate and co-operate

[141] The respondent submits the applicant unilaterally modified the parenting schedule, not allowing the child to attend his parenting time as court ordered. The applicant denies this, claiming the holistic reading of paragraph 2 of the operative order makes it clear the applicant’s actual work schedule governs, from time to time.

[142] The parties did not effectively communicate their respective interpretations of the order. Instead, they took it upon themselves to do what they thought was in the child’s best interest.

[143] The applicant communicates with the respondent when it is convenient for her. She writes long-winded emails demonstrating an openness and candour not indicative of someone who is fearful of the troublemaking bully she portrays.

[144] She did not advise the respondent that the child attended a program at Merrymount, or therapy, or that the child was allegedly uncomfortable in his home.

Disposition of Parenting & Exchanges

[145] The current schedule places the child in the care of the respondent for significant periods of time in the summer, with no issue and no opposition from the child.

[146] The respondent attended at the school when issues surfaced. The school principal and the applicant’s ex-partner testified about positive interactions between father and son.

[147] The respondent is an engaged and loving father whose growing family does not diminish his care and love for the subject child.

[148] The applicant’s attempt to reduce the respondent’s time with the child is an attempt to marginalize his role as father and is consistent with the narrative she creates about him when it is convenient for her to do so to advance her position.

[149] There is no compelling evidence to support that a reduction in the child’s time with his father is in his best interest. The child himself, as recently as April 2023, stated that he does not want the schedule to change. The child makes no reference to the applicant’s work schedule or her ability to care for him more often with the change to her schedule.

[150] The child’s statement to Ms. Hales, to which I ascribe considerable weight, applies equally when considering each party’s position.

[151] The respondent’s requested schedule is a significant departure from the current schedule. I do find, however, that a slightly longer period of uninterrupted time with his father and siblings is in the child’s best interest as it provides him with the opportunity to settle into a routine. It would almost eliminate the need for two visits in one week.

[152] The child does not want any further conflict on the issue of parenting time. He does not wish for exchanges to occur at 6:30 a.m. and prefers exchanges to occur after school. This practical request will be honoured by the court.

[153] Parenting time requires due consideration of the best interests of a particular child.

[154] Both parties have and can continue to provide adequate care.

[155] The child has a close bond with extended family on both sides.

[156] The parties have not always insulated the child from conflict but are encouraged to do so going forward.

[157] The child feels some anxiety and pressure given the outstanding questions regarding future parenting time. The uncertainty of the current situation requires an order that provides stability and routine.

[158] The following schedule takes into account the child’s views, the practicality of school attendance, the current schedule, the preference that exchanges occur at school when possible, and the ability of each party to care for the child.

[159] Para. 2 of the operative order shall be deleted and replaced with the following:

2. The following two-week rotating schedule shall apply to parenting time: a) During week one, the child shall be in the care of the Respondent, Alan Weekes, from Thursday after school until Monday drop off at school. If school is not in session, the respondent’s parenting time shall commence at 4:00 p.m. on Thursday and conclude at 4:00 p.m. on Monday. b) During week two, the child shall be in the care of the respondent, Alan Weekes, from Wednesday after school until Thursday drop off at school. If school is not in session, the respondent’s parenting time shall commence at 4:00 p.m. on Wednesday and conclude at 4:00 p.m. on Thursday.

[160] While the parties had some setbacks in relying on third parties for parenting time exchanges, there is no compelling evidence to suggest that the paternal and maternal grandmothers or the respondent’s new partner cannot continue to assist as needed.

[161] It makes practical sense and is fair for the parties to share in the exchanges and each can rely on a third party to assist.

[162] The applicant's work schedule, and potentially the respondent’s future work schedule, may require the assistance of third parties.

[163] Paras. 8 and 9 of the operative order shall be deleted and replaced with the following:

8. If required, for the purpose of parenting time exchanges, Carol Weekes, Susan Talbot, and /or Erica Shugar may assist the parties.

9. When parenting exchanges do not occur at school, the Applicant, Kristin Moses, shall be responsible for dropping the child off at the commencement of the Respondent, Alan Weekes’, parenting time, and the Respondent shall be responsible for returning the child to the care of the Applicant at the conclusion of his parenting time. The Respondent, Alan Weekes, shall be responsible for pick up and drop off when school is in session.

Child Support

[164] At the start of trial, the court sought to confirm issues in dispute. At that time, it was understood that child support was being reviewed at the request of both parties.

[165] At the conclusion of trial, the respondent took the position that he did not wish to vary child support.

[166] The issue of child support was not pled by the applicant in her Response to Motion to Change. The parties consented to a last-minute amendment of the applicant's Response to Motion to Change claiming a variation of child support retroactive to January 1, 2022.

[167] As outlined above, the respondent has not yet filed his 2022 income tax return, despite raising the issue of child support at trial, at least at the commencement of trial.

[168] It was the respondent's evidence that his accountant was, in part, responsible for the absent income tax return. I do not accept this as a reasonable explanation for why he has failed to comply with his requirement to file income tax returns on time, and his duty to comply with the rules of this court as it relates to the production of full, frank, and complete financial disclosure.

[169] Evidence submitted relating to child support received, or not, prior to the making of the operative order will not be considered. This court will not go behind the operative order.

[170] With respect to determining income for support purposes, the parties do not dispute that WSIB payments are non-taxable and should be grossed up to determine appropriate child support payable under s. 3 of the provincial Guidelines.

[171] An analysis of the respondent’s income is made challenging due to his failure to provide complete and reliable disclosure and it is appropriate to draw an adverse inference against him.

[172] In the circumstance, the court will exercise its option of imputing income to the respondent in such amount that it considers appropriate: see s. 19(1)(f) of the Guidelines.

[173] I do not accept the respondent’s position that his income for support purposes should be solely based on his grossed up WSIB benefits.

[174] He proposes that the court apply his biweekly WSIB earnings multiplied by 26 weeks to arrive at an annual income of $58,442, grossed up to $73,048. The corresponding table support amounts to $681 per month. He seeks this amount to be payable effective January 1, 2023.

[175] The applicant is not precluded from claiming retroactive support to January 1, 2022. The respondent consented to the amendment of her pleadings to request same.

[176] Other than stating that there is insufficient income information for 2022, no additional argument was made as to why support should not be retroactively ordered as pled.

[177] The respondent cannot rely on his failure to produce pertinent and relevant financial information to absolve him from his support obligations.

[178] The respondent did not comply with the operative order as it relates to the ongoing production of financial disclosure. I rely on my comments and findings made above.

[179] The respondent’s 2022 income, by his own admission, was an anomaly. The 2022 T4 from his employer reveals employment income of $15,254. The respondent’s T5007 for 2022 reveals WSIB income of $62,906.04. These amounts should be included for 2022 support. When the WSIB income is grossed up and union dues of $208 are deducted, total income is $102,217.

[180] Net rental income is to be considered for support purposes. However, the applicant proposes that the court add to the respondent’s total income the sum of $19,200 ($1,600 per month x 12 months), a figure derived from the respondent’s financial statement using gross rental income.

[181] The respondent submits he derives a substantial loss each year from the rental. Without the benefit of the return or a statement of rental activities, and in the face of a lack of clarity about the expenses incurred for the home he occupies versus rents out; the court will impute rental income to the respondent in the amount of $12,000.

[182] This imputation of income also takes into account information excluded from the respondent’s financial statement in relation to his corporation, Bigg Weekes Inc., the sale of a $90,000 asset, the non-disclosure of those funds in his financial statement, and the absence of which expenses charged against corporate revenue included personal benefit such as telephone expenses, motor vehicle expenses, office supplies, and insurance.

[183] In view of the foregoing, the respondent’s 2022 income for support purposes shall be imputed in the amount of $114,217.00 ($102,217 + $12,000), which yields a child support obligation for 2022 in the monthly amount of $1,022.

[184] For January 1, 2023, I accept that the respondent does not have any income from his provincial employer. The only evidence before the court relating to his WSIB benefits is that which was received for 2022. When this amount is grossed up, his WSIB income is $79,393. The imputation of $12,000 of additional income results in total income of $91,393. This results in a child support obligation in the monthly amount of $843.

[185] Accordingly, para. 22 of the operative order shall be deleted and replaced with the following:

Effective January 1, 2022 and on the first day of each month thereafter, the Respondent, Alan Weekes, shall pay to the Applicant, Kristin Moses, child support for the benefit of the child, namely Hershall Joseph Moses-Weekes, born October 5, 2012, in the monthly amount of $1,022 based on his imputed income of $114,217.

Effective January 1, 2023 and on the first day of each month thereafter, the Respondent, Alan Weekes, shall pay to the Applicant, Kristin Moses, child support for the benefit of the child, namely Hershall Joseph Moses-Weekes, born October 5, 2012, in the monthly amount of $843 based on his imputed income of $91,393.

Order

[186] An order shall issue as follow:

1. Under the Children's Law Reform Act, R.S.O. 1990, c. C.12, Para. 2 of Justice Korpan’s final order dated January 26, 2016 shall be deleted and replaced with the following: a) The following two-week rotating schedule shall apply to parenting time: i. During week one, the child shall be in the care of the Respondent, Alan Weekes, from Thursday after school until Monday drop off at school. If school is not in session, the respondent’s parenting time shall commence at 4:00 p.m. on Thursday and conclude at 4:00 p.m. on Monday. ii. During week two, the child shall be in the care of the respondent, Alan Weekes, from Wednesday after school until Thursday drop off at school. If school is not in session, the respondent’s parenting time shall commence at 4:00 p.m. on Wednesday and conclude at 4:00 p.m. on Thursday. b) Paras. 8 and 9 of Justice Korpan’s order dated January 26, 2016 shall be deleted and replaced with the following: If required, for the purpose of parenting time exchanges, Carol Weekes, Susan Talbot, and /or Erica Shugar may assist the parties. When parenting exchanges do not occur at school, the Applicant, Kristin Moses, shall be responsible for dropping the child off at the commencement of the Respondent, Alan Weekes’, parenting time and the Respondent shall be responsible for returning the child to the care of the Applicant at the conclusion of his parenting time. The Respondent, Alan Weekes, shall be responsible for pick up and drop off when school is in session.

2. Under the Family Law Act, R.S.O. 1990, c. F.3, c) Para. 22 of Justice Korpan’s order dated January 26, 2016 shall be deleted and replaced with the following: Effective January 1, 2022 and on the first day of each month in 2022, the Respondent, Alan Weekes, shall pay to the Applicant, Kristin Moses, child support for the benefit of the child, namely Hershall Joseph Moses-Weekes, born October 5, 2012, in the monthly amount of $1,022 based on his imputed income of $114,217. Effective January 1, 2023 and on the first day of each month thereafter, the Respondent, Alan Weekes, shall pay to the Applicant, Kristin Moses, child support for the benefit of the child, namely Hershall Joseph Moses-Weekes, born October 5, 2012, in the monthly amount of $843 based on his imputed income of $91,393.

3. All other terms of Justice Korpan’s order dated January 26, 2016 remain in full force and effect.

Costs

[187] If the Applicant seeks costs, she may submit written submissions, typed and double space, of no more than four pages, excluding offers to settle and a cost outline, on or before December 8, 2023.

[188] The Respondent shall have up to December 15, 2023 to file his response to the Applicant's costs of submissions. His submissions shall not exceed three pages, typed and double space, excluding offers to settle and a cost outline.

[189] If no submissions are received in accordance with the timelines set out above, it will be presumed that costs have been settled or one party chose not to file submissions.

[190] The parties have the option to file cost submissions through the JSO (portal) or to london.courthouse@ontario.ca.

“Justice Kiran Sah” The Honourable Justice Kiran Sah

Released: November 16, 2023