CITATION: V.K.G. v. I.G., 2023 ONSC 6329

COURT FILE NO. FC 335-18

DATE: November 8, 2023

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

V.K.G.

Applicant

– and –

I.G.

Respondent

Foluke A. Ololade, for the Applicant

Miranda Belansky, for the Respondent

HEARD: April 6, 7, 8, 11, 12, 13, 14, 19, 20, 21, and 22, 2022; October 24, 25, 26, 27 and 28, 2022; May 29, 30, and 31, 2022; June 2, 2022; September 6, 2023

The Honourable Madam Justice Deborah L. Chappel

REASONS FOR JUDGMENT

PART 1: INTRODUCTION

I. OVERVIEW OF DECISION

[1] The Applicant V.K.G. and the Respondent I.G. were born and raised in Nigeria. They met in 2013 and were married in Nigeria on November 28, 2013. I will refer to the Applicant as “the father’ and the Respondent as “the mother” in these Reasons for Judgment for ease of reference. The father has a son from a prior marriage named A.T.G., born February 2007, who resided with the parties following their marriage. There are two female children of the parties’ relationship, namely I.I.G., born March 2015, and M.A.G., born January 2018.

[2] The parties came to Canada with A.T.G. and I.I.G. in the fall of 2016 with the hope of pursuing permanent residence here. The child M.A.G. was born in Canada. The parties separated on a final basis on May 31, 2019, and the father commenced this Family Law application on June 11, 2019. The trial of the application commenced before me on April 6, 2022, and to their credit, the parties were able to resolve many of the issues between them during the course of the protracted trial. As of the conclusion of the evidence in the trial on June 2, 2023, the father had been living and working in Nigeria since January 2023 and he intended to reside primarily in Nigeria for at least one year.

[3] The outstanding issues to be determined are as follows:

1. What parenting time arrangements for the father are in the best interests of I.I.G. and M.A.G.? Included in this issue is whether the father’s parenting time should be supervised.

2. What is the father’s 2023 income for the purposes of calculating his monthly child support obligation for I.I.G. and M.A.G. pursuant to the Tables under the Federal Child Support Guidelines, SOR/97-175, as amended (the “Guidelines”) commencing June 1, 2023? In deciding this issue, it is necessary to determine the following:

a) How should the court handle the income that the father earned in Nigeria, paid in Nigerian naira currency, in calculating his income for the purposes of the Tables under the Guidelines?

b) In particular, what is the appropriate exchange rate for converting the father’s Nigerian income earned in naira into the equivalent in Canadian dollars? Specifically:

i. Is it the “official” Nigerian government currency exchange rate?

ii. Alternatively, if the evidence establishes that the father cannot actually benefit from the official Nigerian government exchange rate, should the court apply the exchange rate that the father can access on the open currency exchange market through private currency traders (the “black market” rate)?

iii. In the further alternative, is the appropriate rate one that applies in Canada for converting Nigerian naira into the equivalent in Canadian dollars?

iv. Furthermore, how should the court address the fact that currency exchange rates tend to fluctuate on a regular basis?

c) Should the court take into consideration the possibility of differential tax rates as between Canada and Nigeria in calculating the father’s income for child support purposes where the parties have not adduced clear evidence relating to this issue?

d) Is it appropriate to determine the father’s income in accordance with section 16 of the Guidelines, or should the court determine his income in accordance with section 17 of the Guidelines?

e) If the test for triggering the operation of section 17 is met, what is the appropriate approach for determining a fair and reasonable income figure upon which to base the father’s child support obligation commencing June 1, 2023?

f) Should the father be imputed income on any basis pursuant to section 19(1) of the Guidelines?

3. How much monthly child support should the father pay for I.I.G. and M.A.G. pursuant to the Tables under the Guidelines commencing June 1, 2023?

4. Finally, should the amount of child support payable by the father be reduced on the basis of hardship pursuant to section 10(1) of the Guidelines, on account of the costs that he expects to incur to exercise his parenting time with the children?

[4] For the reasons that follow, I conclude that it is in I.I.G.’s and M.A.G.’s best interests that when the father is in Canada and able to spend time with them, he should have regular unsupervised parenting time as follows:

a) If he is present in Canada for less than 8 consecutive weeks, every weekend on both Saturday and Sunday from 11:00 a.m. until 7:00 p.m.

b) If he is present in Canada for 8 consecutive weeks or more, as per subparagraph a until the end of the 8^th^ week, and thereafter on alternate weekends, on both Saturday and Sunday from 11:00 a.m. until 7:00 p.m.

[5] I am also granting the father holiday parenting time during the December school holiday break, the school March Break period and the school summer break, including limited overnight time once the father has had at least 10 days of regular parenting time. All of his regular and holiday parenting time is to occur in Ontario for so long as the children reside primarily in Ontario, and in Nova Scotia once they relocate to that province. I have incorporated several terms regarding the father’s parenting time into the order, including provisions respecting notice of his intention to exercise parenting time, where parenting time is to occur, the location and logistics of parenting time exchanges, the exchange of information regarding where the parenting time will occur, the presence of other family members during visits, the costs relating to parenting time, and make-up parenting time if the mother cancels for any reason. In addition, I have included terms relating to the exchange of information respecting the children and the renewal or replacement of their Canadian and Nigerian passports.

[6] With respect to child support, I have determined that the black market exchange rate is not the appropriate one to apply for converting the father’s Nigerian income into the equivalent in Canadian funds to determine his income for child support purposes. Rather, I have applied the currency exchange rate that applies to the Receiver General of Canada. I have found that the most appropriate approach in applying the exchange rate is to use the average annual exchange rate for the previous year. In the absence of evidence respecting this issue, the court must rely on the best and most appropriate evidence provided by the parties in order to achieve a fair outcome that promotes the objectives of child support. I have not considered the impact of potential differences in tax rates as between Canada and Nigeria in calculating the father’s income as the parties did not establish an evidentiary basis upon which I could assess this issue. I have concluded that the father should be imputed an annual income of $50,000.00 for the purposes of ongoing child support commencing June 1, 2023, and that he should pay the mother the Table amount of child support for two children based on that income in the sum of $755.00.00 per month commencing June 1, 2023. Finally, I have decided that there are no grounds to reduce the monthly Table amount of child support payable by the father on the basis of hardship.

II. INITIALIZATION OF NAMES

[7] While preparing these Reasons for Judgment, I considered whether it would be appropriate to initialize the names of the parties, the children, extended family members, family friends and all non-professional witnesses in order to protect the privacy interests of the parties and the children. In M.A.B. v. M.G.C., 2022 ONSC 7207 (S.C.J.), I outlined in detail the principles that apply in determining whether an order restricting the operation of the open courts principle, including orders authorizing initialization of names in Reasons for Judgment, is appropriate. I have considered those principles in determining whether the initialization of names is justified and appropriate in this case, and I conclude that it is for the following reasons:

1. As I will discuss in further detail in these Reasons, the facts of this case include highly sensitive information about the parties. The mother has made numerous allegations of family violence against the father towards herself and the children, and there have been child protection and police interventions due to these allegations. The historical allegations include reports by the mother of concerns about sexual abuse of the child I.I.G., as well as serious claims that the father poses an abduction risk, which have not in my view been substantiated on the evidence.

2. The information in these Reasons also includes highly personal and sensitive details about counselling and other services that the parties received in the past to address the problems in their marriage.

3. The facts of the case include highly personal information about the children as well, including their special needs and a medical examination that I.I.G. underwent to assess whether she had been sexually molested.

4. I am satisfied that the public airing of the information described above could cause significant mental or emotional harm to the parties and the children. The information involves highly personal, intimate and sensitive details about the parties’ and children’s experiences and about the children’s personal struggles. The publication of this information would in my view constitute a serious affront to the dignity of the parties and the children and to the parties’ personal and professional reputations in the community. Accordingly, I conclude that the protection of their privacy interests is an important public interest, and that publicly identifying the children and the parties would actually present a serious risk to these interests.

5. The young age of the children renders them particularly vulnerable and susceptible to harm from the public disclosure of their private and sensitive information, and the protection of their privacy is therefore particularly important.

6. Initializing the names of extended family members, friends and all non-professional witnesses is in my view necessary, since failing to do so would in all likelihood result in the identification of the parties and the children.

7. There are in my view no less constraining measures on court openness that would be sufficient to prevent the risk to the privacy interests at stake. As I emphasized in M.A.B., initialization is a minimal intrusion upon the open courts principle.

8. The restrictions that I am imposing on court openness will not limit the ability of the press or members of the public generally to report and comment on the case, to understand the important issues and to gain insight into the operations of the court. Accordingly, I find that the benefits of the measures that I am taking to restrict court openness far outweigh any potential negative effects.

9. I do not consider it necessary to give notice to the media before making an order for initialization of names in this case, given that initialization represents a limited restriction on openness and that it would not impede in any material way upon public comment or debate on the issues.

10. While I have not heard submissions from the parties as to whether they agree to initialization in these Reasons for Judgment, I am quite confident that they would support this measure. However, in order to protect the integrity of the open courts principle, I am ordering that either of them may bring a motion to request that I reconsider my decision on this issue upon hearing submissions from both parties.

PART 2: CREDIBILITY AND RELIABILITY ASSESSMENT

[8] I also reviewed the law respecting assessment of credibility and reliability in M.A.B. v. M.G.C., at paras. 47-49, and I have considered those principles in assessing the evidence of the parties and the witnesses who they called at trial. I did not have any concerns regarding the credibility of the witnesses. However, the evidence of the parties was inconsistent on many significant issues, and therefore their credibility and reliability were important considerations.

[9] I address my findings respecting the credibility and reliability of the mother and father on various issues in considerable detail in these Reasons for Judgment, but I provide a general overview of my overall impressions at this point. With respect to the parenting issues, I have serious concerns regarding the overall credibility and reliability of the mother, and I have preferred the father’s evidence over hers in most instances where their evidence conflicted. As I will discuss in further detail below, there were numerous inconsistencies between the mother’s evidence at trial and information obtained in some of the documentary evidence adduced as evidence, particularly the records of the Family and Children’s Services of Niagara (“FACS”) and police reports. The mother did not acknowledge any issues that did not support her case, even when the preponderance of the evidence indicated that she should have. In addition, the evidence and concerns that she raised respecting sexual abuse by the father towards the child I.I.G. were highly inconsistent with the content of surreptitious recordings that she took of the father while he was in the children’s bedroom, which were adduced as evidence at trial and which she relied upon heavily in support of her allegations. With respect to her allegation that the father posed a risk of abducting the children and removing them from Canada, I have found that her evidence in support of those alleged concerns was not credible. My overall impression of the mother respecting the parenting issues was that in many respects, she was either not truthful or she was for some other reason unable to perceive and process events involving the father accurately.

[10] I found the father to be credible and reliable in regard to the parenting issues. He readily conceded to points even when it was not necessarily in his interest to do so. He presented as calm, balanced, fair and even-handed in his evidence, including his comments about the mother. I did not have concerns that he was exaggerating any evidence or issues. His evidence was consistent with the documentary evidence adduced pertaining to the parenting issues.

[11] By contrast, I have significant concerns regarding the father’s credibility around his income and overall financial circumstances, which were integral to the child support issues. As I will discuss at great length below, my overall impression was that he did not comply with his disclosure obligations and that he was deliberately furtive with respect to his financial information. His evidence at trial respecting financial matters was at times inconsistent, and his position respecting his income did not correspond with information extracted from some of his bank records. He withheld critical information about his historical income, and deliberately chose to withhold full documentary proof of his 2022 income even when the court advised him and his counsel that it was required to obtain a true picture of his total income that year. Attempting to obtaining a reliable estimate of his true income for child support purposes was a painful and protracted process that was akin to piecing together a complex jigsaw puzzle. For these reasons, with some limited exceptions, I have generally not accepted his position respecting his historical or current income.

PART 3: BACKGROUND AND HISTORY OF COURT PROCEEDINGS

I. PERSONAL AND RELATIONSHIP HISTORY

[12] The father was born in Nigeria on October 2, 1972, and he is now 51 years of age. He has five siblings who live in the United States, the United Kingdom and Nigeria. His mother is a retired school teacher and she continues to reside in Nigeria. His father died in a military airplane crash. The father is a certified medical doctor in Nigeria.

[13] The father was previously married to C.E.M. on February 18, 2006, and A.T.G. is the only child of their relationship. The father and C.E.M. initially lived in Lagos, Nigeria, where the father worked at the Doren Specialist Hospital as a physician. In 2007, the father secured employment with the Medical and Dental Council of Nigeria (the “MDCN”), located in Abuja, Nigeria. The MDCN is the organization that regulates and oversees dentists and doctors in Nigeria. The father rented an apartment in Abuja when he secured this position, and C.E.M. and A.T.G. continued to live in Lagos, where the child’s maternal grandparents and other relatives resided. The father returned to Lagos regularly to see his family during this period.

[14] C.E.M. died tragically on July 2, 2010 as a result of complications from a blood transfusion while she was pregnant with her second child with the father. The unborn child did not survive. The father continued to work in Lagos with the MDCN following C.E.M.’s death. He made arrangements with A.T.G.’s maternal grandparents for A.T.G. to reside with them primarily in Lagos for approximately 1.5 years, as the child was very bonded with the grandparents. The father assumed full-time care of A.T.G. in early 2012, when the child was 5 years old, and he and A.T.G. resided in Abuja.

[15] The mother was born in Nigeria on November 3, 1987 and is now 36 years of age. She completed her university studies with a speciality in Biochemistry in 2011 and then completed one year of compulsory service with the Nigerian National Youth Service. Upon completing this year of service, she returned to her hometown of Port Harcourt, Nigeria and worked as an elementary school teacher.

[16] The mother met a friend of the father, Dr. H.O., in 2012 while she was serving with the National Youth Service in Cross River State, Nigeria. Dr. H.O. felt that the parties would make a good match, and therefore he facilitated their connection with each other. The parties began communicating with each other and eventually met in person in August 2013. The father proposed marriage in September 2013, and the parties were married in a courthouse on November 28, 2013. According to Nigerian tradition, the mother could not begin to reside with the father until they had a traditional church wedding, also known as the “white wedding,” which occurred on February 15, 2014 near the mother’s hometown of Port Harcourt, Nigeria. The father paid a bride price as a condition of the marriage, as per Nigerian custom.

[17] The mother began to reside with the father at his residence in Abuja following the white wedding. She did not work in Nigeria after marrying the father. The father’s residence was provided by the MDCN and was subsidized by the federal Nigerian government. The child A.T.G. resided with the parties, and when the mother arrived in Abuja, the father’s nephew was also living in the home. The parties had a full-time housekeeper who the father had hired prior to the marriage, and who continued to reside in the home after the mother arrived in Abuja.

[18] The mother became pregnant soon after the traditional wedding, and the child I.I.G. was born in Nigeria on March 25, 2015. The parties discussed the possibility of attempting to immigrate to Canada during the mother’s pregnancy, but they decided against doing so at that time because they did not have any family supports here. However, during the summer of 2015, the mother raised the idea of immigrating once again, and she advised the father that she wished to pursue studies in Nursing in Canada. She initiated the process of the family potentially coming to Canada by applying to Nursing programs at McMaster University and Mohawk College in Ontario during the summer of 2015. She never received a response to her application from McMaster University. Mohawk College offered her admission in a Biomedical program, which the mother declined as she already had a degree in that field. The father then began to explore the possibility of obtaining a Master’s degree in Canada. In 2016, he was offered admission into a Master’s degree program in the field of e-health at McMaster University, which he accepted.

II. ARRIVAL IN CANADA AND SETTLEMENT IN NIAGARA FALLS

[19] The father took an unpaid two year leave of absence from his employment with the MDCN commencing in September 2016 so that he could pursue his Master’s degree program at McMaster University. The Canadian government granted him a study permit authorizing him to reside in Canada, and he and his son A.T.G. came to Canada on September 28, 2016. The mother was granted a work permit allowing her to work in Canada, and I.I.G. was granted a study permit. The mother and I.I.G. arrived in Canada on October 31, 2016. The family settled in Niagara Falls, Ontario.

[20] The father engaged in his studies at McMaster and also worked part-time following his arrival in Canada. As I will discuss in further detail below in addressing his income history, he worked as a Research Assistant at McMaster University in 2017 and then completed a four month paid internship with the Centre for Addiction in Mental Health in Toronto later that year. From 2016 to 2019, he also secured various part time jobs to contribute to the support of the family. In addition, he worked as a Research Associate with Aajimatics, a technology firm, from 2019 until June 2020 to support the family financially.

[21] The mother began to work as a call centre representative at Convergys, a telecommunications company, at its Welland site soon after her arrival in Canada. She found it too difficult and expensive to travel to Welland for work, and therefore she took a position as a housekeeper at the Sheraton Hotel in Niagara Falls in 2017. She became pregnant with the child M.A.G. in 2017. The records of FACS indicate that she also worked for a period of time at the Ware House, a glass factory, commencing in the fall of 2018. M.A.G. was born on January 31, 2018 in Niagara Falls, and she has therefore been a Canadian citizen since birth. The mother took a maternity leave following M.A.G.’s birth and received employment insurance benefits. When the mother returned to work in the fall of 2018, the parties enrolled I.I.G. in daycare and organized a shared care arrangement respecting M.A.G. around their respective schedules.

[22] In May 2018, the father applied for an extension of his unpaid leave of absence from the MDCN, as his original unpaid leave period was to end in September 2018. On June 19, 2018, the MDCN granted an extension of his unpaid leave for four months, until January 2018.

III. THE PARTIES’ FIRST SEPARATION ON AUGUST 24, 2018 AND COMMENCEMENT OF FACS INVOLVEMENT

[23] The parties’ relationship became very conflicted in the spring of 2018, soon after the birth of M.A.G. As I will discuss in further detail below, the mother began to raise concerns that I.I.G. was being sexually abused during the summer of 2018. The parties arranged for I.I.G. to be examined and assessed by Dr. Colorado at the Morrison Medical Clinic on August 1, 2018. Dr. Colorado examined I.I.G. and took a urine culture and vaginal swab, and he did not find any medical evidence that I.I.G. had been sexually molested.

[24] The mother continued to have concerns that I.I.G. was being sexually assaulted, despite the outcome of the medical assessment and testing. She initially suspected that A.T.G. was sexually abusing I.I.G., but her suspicions later turned to the father. She therefore set up a hidden camera in the bedroom that I.I.G. and M.A.G. shared in July 2018 to determine if anything untoward was occurring, and she discussed her concerns with a family friend, Ms. O.O., and the wife of the family’s pastor. She made several surreptitious recordings of the father while he was in the girls’ bedroom. These issues caused significant tension between the parties, and the conflict between them came to a head on August 24, 2018. On that date, the mother began praying in the home for God to protect her girls from any sexual molestation. The father approached her and then questioned A.T.G. about whether he had been engaging in any sexual activity with I.I.G., which A.T.G. adamantly denied. It became apparent to the father that the mother had turned her suspicions respecting sexual abuse of I.I.G. to him, and the situation escalated. The father struck the mother twice on her face during this dispute. A neighbour heard the argument and called the police. The father was charged with assault against the mother on August 24, 2018, and he was incarcerated until August 29, 2018. He was then released on bail, with terms that he reside with the family’s pastor, Mr. B.S.; that he have no direct or indirect contact with the mother except through a Family Court order or for the purposes of making contact arrangements or having contact with the children through Mr. B.S.; and that he not be within 25 meters of the mother or where he knew she worked or attended school except pursuant to a Family Court order or for arranging or having contact with the children.

[25] FACS became involved with the family following the events of August 24, 2018 and remained involved on a voluntary basis until September 2020. An Intake Worker Ms. Michelle Menhennet worked with the family until October 2018, when the file was transferred for ongoing service to Family Services Worker Ms. Manju John. As I discuss in further detail below, FACS and the Niagara Police Service investigated the mother’s concerns about possible sexual abuse of I.I.G. and did not verify any such concerns. However, FACS verified concerns that the 3 children were at risk of suffering emotional harm due to exposure to partner conflict.

[26] The mother continued to reside with A.T.G., I.I.G. and M.A.G. in the family residence after the father was charged with assault, and the father resided with the family’s pastor Mr. B.S. for approximately one month before securing a separate apartment. The father commenced an application shortly after his release from incarceration, seeking decision-making responsibility and parenting time with the children. With the support of FACS, the father had some visits with the children at the home of the pastor Mr. B.S. following his release from jail. By late September 2018, the parties began to explore the possibility of a reconciliation. The father therefore withdrew his original application on September 28, 2018. The parties met with the pastor Mr. B.S. and two members of their church, Ms. O.O. and Ms. T.A., on October 5, 2018. During this meeting, the mother stated that her concerns of possible sexual abuse by the father towards I.I.G. were not justified, and she apologized to the father in front of the church members.

[27] The parties worked with FACS and engaged in services to address the issues in their relationship after the father’s release from incarceration. The father participated in the PAR program and anger management counselling with the Salvation Army in 2018, and the mother received support through the Victim Services program, Gillian’s Place and the Mothers in Mind program. The parties began to engage in counselling through the Family Counselling Program in early 2019, and they also received counselling support from their pastor Mr. B.S. FACS assisted the family by referring I.I.G. for speech therapy services through the Speech Services of Niagara, making a referral for subsidized daycare, and referring the mother and A.T.G. to the Side by Side program to address issues in their relationship. At a transfer meeting between the Intake Worker Ms. Michelle Menhennet, the new Family Services Worker Ms. Manju John and Family Services Supervisor Ms. Courtney Mossman on October 31, 2018, Ms. John was also directed to ensure that the mother received education around normal and typical behaviour for children of M.A.G.’s and I.I.G.’s ages.

[28] On October 23, 2018, the Crown withdrew the assault charge against the father on the condition that he agree to a common law preventative justice order. On that date, Justice Thibideau issued a 12 month common law preventative justice order with conditions that the father keep the peace and be of good behaviour generally and that he not possess any weapons. Around the same time as this order was made, the mother began working at the Ware House, where her hours of work were from 3:00 p.m. until 1:00 a.m. She asked the father to care for the 3 children in the family home while she worked. The father was concerned about the mother making further allegations of sexual abuse against him if he provided night time care for the children. The parties worked with the FACS worker Ms. Manju John to devise a plan for the father to care for the children, but which addressed the father’s concerns about further allegations of abuse from the mother. Commencing in late October 2018, the father began caring for the children in the home while the mother worked every weeknight from 3:00 p.m. until 1:00 a.m.

[29] The father continued with his studies at McMaster University following his release from incarceration on August 29, 2018 and he completed his Master’s degree in late 2018. His leave of absence from the MDCN was to expire in January 2019, but he applied for a further extension of that leave of absence on December 24, 2018. On February 20, 2019, the MDCN extended his unpaid leave of absence again, until June 29, 2019, with the expectation that he would return to Nigeria and resume his duties on July 1, 2019.

IV. THE PARTIES’ RECONCILIATION IN DECEMBER 2018

[30] With the support of FACS, the parties decided to resume cohabitation in mid December 2018. Prior to taking this step, the parties entered into a Service Agreement with FACS on December 3, 2018 to establish clear expectations. The terms of the agreement were as follows:

1. The parties were to ensure that the children were not exposed to adult conflict.

2. If conflict arose between the parties, the father was to remove himself from the situation and take a “time-out.”

3. The father was to continue his participation in the PAR program and anger management counselling through the Salvation Army.

4. The mother was to participate in counselling relating to family violence and to work with the Department of Public Health through the Healthy Babies Healthy Children program, with one of the goals being to increase her understanding of normal developmental and sexual behaviour patterns in children.

5. The parties were to engage in relationship counselling through the Family Counselling Centre to learn about the impact of family violence on children’s development and positive communication and interaction strategies.

[31] FACS worker Ms. Manju John conducted regular home visits with the family following the father’s return to the family home. The mother decided to quit her night shift job at the Ware House and resumed her employment as a housekeeper at the Sheraton Hotel in early December 2018 so that she could work day shifts. The father then secured full-time night shift work in late January 2019 so that he could care for the children during the daytime to facilitate the mother’s return to daytime employment hours.

[32] In January 2019, the mother advised the father of her intention to enroll in the Practical Nursing Program at Nova Scotia Community College in Kentville, Nova Scotia. The father was not pleased with this plan as the family had settled in Ontario, but the mother nonetheless submitted her application. In February 2019, the mother enrolled in the Personal Support Worker (“PSW”) program at Trillium College in St. Catharines, Ontario and she commenced that six month program in March 2019. She attended class every weekday from 9:00 a.m. until 12:30 p.m., and she reduced her work hours to enable her to pursue these studies. In April 2019, she secured a casual position at Bayshore Home Care Solutions while she was still in school. The father was involved in two car accidents in the spring of 2019, which caused additional stress for the family. I.I.G. and M.A.G. were accepted into subsidized daycare in May 2019, which relieved some of the stress on the family and allowed the father time to accept a position as a Research Associate with Aajimatics.

[33] In order to support the family’s continued residence in Canada, the father applied for an extension of the immigration permits that had been granted to him, the mother and I.I.G. On March 7, 2019, Immigration, Refugees and Citizenship Canada issued the father a post-graduate work permit and extended the mother’s work permit and I.I.G.’s study permit, which allowed all of them to remain in Canada until March 6, 2022.

V. FINAL SEPARATION ON MAY 31, 2019

[34] Unfortunately, the relationship between the parties began to deteriorate again in late May 2019. As I discuss in further detail later in these Reasons, the mother claims that the father became volatile and emotionally and verbally abusive again, whereas the father claims that the mother conjured up allegations against him to support her desire to separate and pursue permanent resident status for her and the children on her own, without his involvement. The parties attended a counselling session at the Family Counselling Centre on May 30, 2019 which did not go well. The FACS records indicate that the mother advised the father during that session that she wished to separate, whereas the father was distressed and wished to continue working on the parties’ relationship. The parties’ counsellor did safety planning with the mother due to the escalated nature of the session. The next day, on May 31, 2019, the mother left the family home with I.I.G. and M.A.G. and went to Gillian’s Place shelter, without advising the father. She left 12 year old A.T.G. in the home. She advised the parties’ counsellor of the situation, and the counsellor contacted FACS due to concerns about whether an appropriate plan was in place for A.T.G. The parties never reconciled after May 31, 2019.

[35] The mother, I.I.G. and M.A.G. remained at Gillian’s place shelter for several months following the parties’ separation, and A.T.G. remained in the father’s care. The father offered to vacate the apartment where the family had resided so that the mother and the girls could return to that home, but the mother declined. FACS carried out home visits at both residences and did not note any concerns regarding the care of any of the children.

[36] Neither the mother nor the Society advised the father where the mother, I.I.G. an M.A.G. were residing following the separation. The FACS records confirm that the father made numerous attempts through FACS to arrange for parenting time with I.I.G. and M.A.G. during the period immediately following the separation. However, the mother was unwilling to arrange visits and FACS refused to advise him of where the mother was residing for the purposes of serving her with court documents.

VI. SECOND COURT APPLICATION AND INITIAL TEMPORARY ORDERS

[37] The father commenced the current application on June 11, 2019 as he had not been able to establish a parenting plan with the mother. He sought sole decision-making responsibility and primary residence of A.T.G. He agreed to the mother having primary residence of I.I.G. and M.A.G. but requested shared decision-making responsibility and reasonable parenting time with them.

[38] The father had to return to Nigeria in mid June 2019, soon after commencing these proceedings, because his leave of absence at the MDCN ended on June 30, 2019. The parties had planned prior to the separation that the father would take A.T.G. for a holiday in Nigeria from mid June 2019 until late August 2019, and the father followed through with this plan. While he was in Nigeria, he attempted through FACS to arrange for virtual parenting time with I.I.G. and M.A.G., and on July 10, 2019, the mother advised the FACS worker Ms. John that she would contact the pastor Mr. B.S. to make arrangements for video calls. However, this contact was never arranged. The mother claimed that the father did not call Mr. B.S. to set it up, whereas the father alleges that the mother did not cooperate in arranging the virtual contact.

[39] The mother served and filed her Answer and Claim on August 28, 2019. She advanced claims for a divorce, sole decision-making responsibility and primary care of I.I.G. and M.A.G., parenting time with A.T.G., supervised parenting time for the father with I.I.G. and M.A.G., child support, spousal support, a restraining order against the father and an order prohibiting him from applying for any passports for I.I.G. and M.A.G. Around this same time, the father returned to Canada with A.T.G. so that A.T.G. could resume his schooling in the Niagara region. He remained in Ontario with A.T.G. for approximately one month, and during this period he attempted without success to arrange for parenting time with I.I.G. and M.A.G. through the pastor Mr. B.S. The FACS records indicate that the mother was not open to him having contact with the children until a court order was in effect, because she feared that he would abduct them and leave the jurisdiction with them.

[40] The father was required to return to Nigeria again due to his work commitments in late September 2019. A.T.G. wished to remain in Ontario, and the father felt that it was in his best interests to do so. Accordingly, with the support of FACS, the father placed A.T.G. in a kinship care arrangement with his church friend, Ms. O.O. FACS remained involved with the father, A.T.G. and Ms. O.O. in 2020 to monitor A.T.G.’s wellbeing under the kinship arrangement. However, it closed its file respecting the mother, I.I.G. and M.A.G. in January 2020 at the mother’s request. The agency’s records indicate that the mother was no longer willing to work with FACS in large part because she felt that it was providing the father with too much information respecting her and the children. As of the time of the FACS file closing in early January 2020, the mother was still living at Gillian’s Place shelter but was on a priority list for Niagara Regional Housing. She had completed her studies and was working as a PSW. I.I.G. was in school and M.A.G. was attending daycare.

[41] The mother brought a motion on October 4, 2019 seeking sole decision-making responsibility and primary residence respecting I.I.G. and M.A.G., parenting time for the father supervised by the pastor Mr. B.S. or through the Supervised Parenting Time Niagara program run through Pathstone Mental Health (“Pathstone”). She also sought orders prohibiting the father from removing I.I.G. and M.A.G. from the Niagara region, from applying for passports for them and from communicating with her or members of her family. Kril J. heard the motion on October 25, 2019, at which time the father was in Nigeria. She adjourned the proceedings to a case conference and granted a temporary temporary without prejudice order providing for I.I.G. and M.A.G. to remain in the mother’s primary care, prohibiting the father from removing the children from the region of Niagara and prohibiting both parties from applying for passports for the children.

[42] A case conference occurred before Edwards J. on December 19, 2019. The father was still in Nigeria at the time due to his work commitments. On that date, Edwards J. granted an order on consent of the parties addressing child support and parenting issues. The father was ordered to pay child support for I.I.G. and M.A.G. in the amount of $373.00 per month commencing January 1, 2020 based on his reported 2018 income of $23,867.00. He was granted virtual parenting time through FaceTime or Facebook twice per week on Tuesdays and Saturdays at 6:00 p.m. commencing December 21, 2019. The order also provided that while he was in Canada, he was entitled to parenting time with I.I.G. and M.A.G. every weekend on Saturday from 10:00 a.m. until 2:00 p.m. and Sunday from 1:00 p.m. until 5:00 p.m., supervised by the pastor Mr. B.S. in the pastor’s home or in the Niagara community. This parenting time was to be reviewed by the parties after two weeks of visits.

[43] The father served and filed an amended application on February 25, 2020. He reiterated his claim for joint decision-making responsibility respecting I.I.G. and M.A.G. He requested parenting time with the children twice per week whenever he was in Canada, including overnight visits, regular and specified virtual parenting time, the right to obtain information respecting the children, an order precluding the mother from removing the children from the Niagara area without his consent and a dismissal of the mother’s spousal support claim. The mother served and filed an amended Answer and Claim on February 20, 2021 to include a request for authorization to relocate with the children to Kentville, Nova Scotia so that she could enroll in the Registered Practical Nursing program at the Nova Scotia Community College.

[44] The court proceedings proceeded to a settlement conference before Braid J. on August 25, 2020. The COVID-19 pandemic had been declared in March 2020, and the father was therefore in Nigeria for the conference. On consent of the parties, Braid J. made an order directing the father to produce to the mother by no later than October 19, 2020 copies of all personal bank account statements for accounts in his name from December 1, 2019 to present, and proof of all income earned or received within Canada or any other country from January 2017 to present. In addition, Braid J. varied the temporary order dated December 19, 2019 to provide that the father’s virtual parenting time was to occur every Saturday and Sunday at 2:00 p.m., and that it was to be through Skype rather than FaceTime or Facebook.

[45] A trial scheduling conference occurred before Kril J. on October 29, 2020, and the case was scheduled for trial commencing in late March 2021. However, on March 25, 2021, the trial was adjourned to the trial sittings commencing in late November 2021 as the FACS records had not yet been produced and the parties advised that they were attempting to resolve the issues between them.

VII. IMMIGRATION ISSUES

A. The Mother and I.I.G.

[46] It is important to summarize the immigration issues that the parties experienced during these court proceedings, as they became a major source of conflict and mutual claims of inappropriate conduct towards each other. As discussed above, the parties and I.I.G. received extensions to their immigration visas in March 2019 permitting them to remain in Canada until March, 2022. The mother’s and I.I.G.’s visas were linked to the father’s visa, and the mother therefore sought legal assistance after the parties’ final separation on May 30, 2019 to pursue separate visas for her and I.I.G. She initially applied for refugee status in Canada on humanitarian and compassionate grounds, in approximately June 2019. She based this application in part on her allegations that the father had sexually abused I.I.G., claims that he had been abusive towards her in the past, and accusations that he was engaging in threatening behaviour towards her and her family members in Nigeria. The mother’s request for refugee status was denied on November 21, 2019 on the basis that there was insufficient evidence to support her application.

[47] A new route for permanent residence opened up in late 2020, namely the caregiver route, which was available for people who were providing care for vulnerable people in the community. The mother submitted applications for herself and I.I.G. through this avenue. However, she required a divorce order and could not meet this requirement in time for the deadline for completing her application. A new essential workers’ route for permanent residence opened up in approximately the spring of 2021, and the mother submitted applications for herself and I.I.G. pursuant to that program. She required a divorce order and a new Nigerian passport for I.I.G. to proceed with her application, as I.I.G.’s passport had expired. She made efforts through her counsel to obtain the father’s consent to renew I.I.G.’s passport, but the father made inquires about this through his counsel because it was his understanding that I.I.G.’s passport had been renewed in 2018 and was still valid. In addition, the father requested certain conditions before consenting to the mother obtaining a passport for I.I.G., as he had concerns that the mother may remove the children from Canada without his knowledge and permission.

[48] The parties sought to address immigration-related issues by way of motions in late 2021, around the time when the trial was scheduled to commence. The father brought a motion on November 22, 2021 seeking to adjourn the trial to the March 2022 sittings, as he could not obtain permission from the MDCN to leave work for sufficient time to attend trial until early 2022. He also requested an order requiring the mother to confirm whether she had made a refugee claim, and if so, that she disclose the grounds for the application. The mother brought a cross motion on December 29, 2021 seeking authorization to apply for I.I.G.’s passport without the father’ consent. Ramsay J. eventually heard the motions on February 9, 2022. By that point, the situation respecting the mother’s and I.I.G.’s immigration status was urgent, as their work and student visas were set to expire on March 6, 2022. On that date, after hearing submissions and the concerns of both parties, Ramsay J. ordered as follows:

1. The mother was permitted to apply for a Nigerian passport for I.I.G., upon the following terms and conditions:

a) She was to provide a copy of the Nigerian passport to the father once it was issued;

b) She was to provide a copy of any passport in the name of M.A.G. to the father;

c) She was precluded from removing I.I.G. and M.A.G. from the Niagara region without advising the father and obtaining his consent at least 90 days in advance of doing so;

d) She was precluded absolutely from removing I.I.G. and M.A.G. from the province of Ontario; and

e) She was to notify the father on a continuous basis of any change in the children’s residence within at least 48 hours in advance of any such change.

2. The father was directed to provide to the mother any consents required by the Nigerian authorities to renew I.I.G.’s passport without delay.

3. The divorce claim was severed from the corollary relief claims and was to proceed by way of affidavit evidence on an uncontested and expedited basis.

[49] On February 10, 2022, Ramsay J. granted the divorce order.

[50] The mother subsequently applied for and obtained a new Nigerian passport for I.I.G. so that she could proceed with her application for permanent residence under the essential workers’ route. She breached the February 9, 2022 order by refusing to provide a copy of this passport to the father. At trial, she justified her refusal to do so on the basis that she was seeking an order at trial requiring the father to destroy any of the children’s documents that he had in his possession.

[51] The mother and I.I.G. obtained permanent residence status in Canada in October 2022. They will be eligible to apply for Canadian citizenship in 2025.

B. The Father

[52] The father was in Nigeria for most of 2021 due to his work commitments and travel restrictions imposed as a result of the COVID-19 pandemic. He was finally able to return to Canada in 2021 for six weeks, from July 3, 2021 until mid August 2021. However, he explored various means of pursuing residency status in Canada in 2021. He testified that he applied for study visa programs through McMaster University, Brock University and Ottawa University. Eventually, another option opened up for him through the Canadian Experience Class route for permanent residence. This route required applicants to have at least one year of work experience in Canada before applying. When this avenue opened up, the father applied for a one year paid sabbatical leave from the MDCN so that he could work in Canada. On December 21, 2021, the MDCN granted him a one year fully paid sabbatical leave, from January 1 to December 31, 2022.

[53] On February 8, 2022, the father received correspondence from the government of Canada confirming that he had applied for a work permit through the Brock University Visiting International Scholar program, and permitting him to work in Canada as a temporary resident until a decision was made on his application. He was officially granted a one year work permit pursuant to this program on July 26, 2022, authorizing him to work for Brock University until July 26, 2023. Subsequently, on August 10, 2022, he was also granted a more general open work permit through the Post Graduation Work Permit program authorizing him to remain and work in Canada for any employer until July 26, 2023. This work permit was subsequently extended until April 2024.

[54] The father returned to Canada in early January 2022 to assume his role as a Visiting International Scholar at Brock University. He testified that the university did not have grants or other sources of funding to pay him, and that he therefore sought other work in his field. He began working at Medic Alert Foundation Canada (“Medic Alert”) in Toronto in May 2022 and continued working there until April 7, 2023 to support his application for permanent residence through the Canadian Experience Class route. He moved to Richmond Hill in mid June 2022 to be closer to his work and rented space in a home owned by Ms. O.D.B. Ms. O.D.B.’s 14 year old son A.B. also resides in the home. The father’s son A.T.G. began to reside with him again on a full-time basis at that time. In September 2022, the father and Ms. O.D.B. began a romantic relationship. The father’s sabbatical leave from the MDCN ended on December 21, 2022, and therefore he had to return to Nigeria in late December 2022. He proposed marriage to Ms. O.D.B., and they were married in Nigeria on January 18, 2023.

[55] The father has remained in Nigeria since December 2022 and has continued to work for the MDCN. As of the completion of the trial, he was continuing to explore options for obtaining his permanent residence status in Canada. He was confident that he would be successful in becoming a permanent resident, and he expected that his marriage to Ms. O.D.B. would facilitate this process, as Ms. O.D.B. is a Canadian citizen.

VIII. OVERVIEW OF THE FATHER’S PARENTING TIME FOLLOWING THE FINAL SEPARATION

[56] As I have previously indicated, the father’s unpaid leave of absence from the MDCN ended on June 30, 2019, soon after the parties’ final separation. He returned to Nigeria with A.T.G. on June 16, 2019. However, he made numerous efforts through FACS, through Axis Family Mediation and directly with the mother from May 31, 2019 until his departure for Nigeria to see I.I.G. and M.A.G., without success.

[57] The father made further efforts to see I.I.G. and M.A.G. upon his return with A.T.G. to Canada in late August 2019. The FACS records indicate that the mother undertook to arrange parenting time for the father supervised by the pastor Mr. B.S. when the father returned to Canada with A.T.G. in August 2019, as well as virtual parenting time when he returned to Nigeria. However, the father advised FACS worker Ms. Manju John on September 4, 2019 that he had attempted to arrange visits at Mr. B.S.’s home but the mother had refused. In fact, the mother confirmed with Ms. John on September 5, 2019 that she was refusing all parenting time with the father, even supervised visits with the pastor, until she had spoken to her counsel. At trial, she claimed that she took this position because Mr. B.S. told her that the father had talked about having possession of the children’s passports, and she had concerns that the father would abduct the children even under the supervision of the pastor.

[58] The father commenced his second application on June 11, 2019 in order to secure parenting time with the children. In response to the mother’s resistance to permitting parenting time, the father retained his counsel Ms. Ololade on approximately September 11, 2019 to assist him with the application. Ms. Ololade sent correspondence to the mother’s counsel, Ms. Belansky, on September 11, 2019 requesting parenting time for the father, and advising that the father would agree to either Mr. B.S. or B.S.’s wife supervising if necessary in order to see his children. However, the mother’s counsel Ms. Belansky responded on September 11, 2019 that the mother would only agree to parenting time supervised by either Mr. B.S. or Pathstone if the father also agreed to an order granting her sole decision-making responsibility and imposing one-sided prohibitions against the father from removing the children from the Niagara region and applying for passports for the children. The parties could not reach agreement on those issues, and therefore the father did not see the children before he had to return to Nigeria for work purposes in late September 2019.

[59] The father intended to return to Canada in December 2019 to see A.T.G., I.I.G. and M.A.G. However, he had to postpone his return to Canada because his employer scheduled a promotion process that required his presence in Nigeria to appear before the promotion board. He planned to return to Canada in early April 2020 to see the children. Unfortunately, the onset of the COVID-19 pandemic in March 2020 and the resulting travel restrictions prevented him from returning to Canada until July 2021.

[60] The father began exercising his virtual parenting time with I.I.G. and M.A.G. on Tuesdays and Saturdays at 6:00 p.m. in December 2019, pursuant to the temporary order dated December 19, 2019. These calls were approximately 30 to 40 minutes in duration, despite the very late time of the calls in Nigeria. As I have indicated, the virtual parenting time was changed to every Saturday and Sunday at 2:00 p.m. pursuant to the order of Braid J. dated August 25, 2020. The father has been consistent in exercising this virtual parenting time since December 2019. The father has also maintained regular and frequent contact with A.T.G. during periods when they have been separated due to the father’s work commitments.

[61] The father returned to Canada from July 3, 2021 until August 13, 2021 to see A.T.G., I.I.G. and M.A.G. His counsel Ms. Ololade sent correspondence to the mother’s counsel on June 15, 2021 advising of his return and requesting that the mother make I.I.G. and M.A.G. available for parenting time at the home of the pastor Mr. B.S. in accordance with the December 19, 2019 order. Unfortunately, Mr. B.S. was no longer in Canada at that time and his wife could not commit to supervising the father’s parenting time. On July 5, 2021, Ms. Ololade corresponded with Ms. Belansky again and advised that the father was willing to arrange supervised visits through Pathstone so that he could see the children. Both parties submitted intake forms with Pathstone in early July 2021 for the father to have visits at that facility, but visits could not commence at that point due to ongoing concerns relating to the pandemic and the fact that there was a significant wait list. The father contacted other supervised parenting time agencies to determine their availability to supervise visits, including the Family Counselling Centre and the Attachment and Trauma Centre, without success. On July 8, 2021, Ms. Ololade sent correspondence to Ms. Belansky suggesting that visits be supervised by a member of the parties’ church, Ms. F.T., at her home. The mother rejected this proposal on the grounds that she did not personally know Ms. F.T. and she had concerns that the father posed a flight risk. Eventually, the father made arrangements with a private parenting supervision agency, Brayden Supervision Services (“Brayden”) to supervise visits with the children during the summer of 2021. He had five visits, from July 25, 2021 until August 8, 2021. The first three supervised visits on July 25, July 31 and August 1, 2021 occurred at Ms. F.T.’s home in Thorold, and the last two visits occurred on August 7 and August 8, 2021 at a local shopping mall. A.T.G. accompanied the father on all of these visits. The father testified that each visit cost him approximately $500.00.

[62] As I have indicated, the father returned to Canada for a year from January to December 2022, on a paid sabbatical leave from the MDCN. On January 27, 2022, he emailed Pathstone to inquire about his standing on the wait list for visits through that agency and he made two additional calls in February 2022 to follow up about his status on the list. There were additional delays in implementing visits at Pathstone, as the December 19, 2019 order provided for supervision by Mr. B.S., and Pathstone required a written agreement signed by both parties to permit supervision by Pathstone. By the time this agreement was signed in mid February 2022, the father was still 11^th^ on the wait list. He called Pathstone on March 24, 2022 to determine if supervision services were available yet and determined that he was still on the wait list. As a result of this delay, he contacted Brayden once again to arrange visits with I.I.G. and M.A.G. In 2022, he had visits supervised by Brayden on March 1, 2022, May 7, 2022, May 28, 2022 and another visit in June 2022. Throughout this period, he followed up regularly with Pathstone to determine when it could provide supervision services.

[63] Pathstone’s services finally became available to the parties in July 2022. Upon the parties completing their intake interviews in July 2022, the agency confirmed that visits could occur on alternate Saturdays from 12:30 p.m. until 2:30 p.m. at the agency’s Merrittville site in Welland. The first visit at Pathstone occurred on August 13, 2022, and the last visit in 2022 occurred on December 17, 2022. The father put the visits on hold temporarily at that time as he had to return to Nigeria at the end of his paid sabbatical leave.

[64] The father returned to Canada for a month from March 11, 2023 until April 11, 2023. He contacted Pathstone in advance of his return on February 22, 2023 to arrange for visits with I.I.G. and M.A.G. Pathstone was able to resume services during this period of time, and the father saw the children on March 19, 2023, March 25, 2023 and April 1, 2023.

IX. THE PARTIES’ PERSONAL AND EMPLOYMENT CIRCUMSTANCES SINCE 2022

[65] As I have indicated, the father was in Canada throughout 2022, but he has resided in Nigeria since late 2022, when he had to return at the end of his one year sabbatical leave. He has continued to work for the MDCN. He is now married to Ms. O.D.B, who remains primarily resident in Richmond Hill, Ontario with A.T.G. and her own son A.B.

[66] The mother has continued to reside with the children in the Niagara region. She has not been in a serious romantic relationship since her separation from the father. She continued to work as a PSW for Bayshore Home Care Solutions until April 12, 2023 and has also supplemented her income at times by doing deliveries for Instacart. She stopped working in April 2023 so that she could complete an online computer skills course that she has enrolled in through Trios College. She has received student loans through OSAP to assist in supporting herself and the children while she undertakes these studies. She anticipates that she will complete this course by the spring of 2024, at which point she plans to relocate with the children to Kentville, Nova Scotia in time to start her two year Registered Practical Nursing program in 2024. Upon completing that program, her intention is to upgrade her education further to obtain a Bachelor of Science degree in Nursing as well as qualifications in nursing management, as her ultimate goal is to obtain a managerial nursing position. Her decision to upgrade her computer skills was based in part on this long-term career objective.

X. THE TRIAL PROCEEDINGS AND FINAL ORDERS MADE DURING TRIAL

[67] The trial in this matter commenced on April 6, 2022 and continued for 11 days, until April 22, 2022. The time estimate that counsel had given at the trial scheduling conference of 5 to 6 days was highly inaccurate, as the trial in fact took 20 days to complete. The trial therefore had to be adjourned due to numerous judge and counsel availability issues. The trial could not resume until October 24, 2022 due to scheduling issues, and it continued to be protracted because extensive evidence was required on a voir dire to address the admissibility of the videos that the mother had surreptitiously taken of the father in the children’s bedroom. A further adjournment was necessary, and the trial therefore did not conclude until June 2, 2023.

[68] The parties resolved several issues during the course of the trial proceedings. On April 17, 2022, I granted a final order on consent of the parties dismissing the mother’s claim for spousal support and both parties’ claims respecting the child A.T.G. on a without costs basis. The parties participated in two mid-trial settlement conferences and resolved some of the parenting and child support issues near the end of the trial, on May 29, 2023. On that date, I granted a further final order on consent of the parties providing as follows:

1. Arrears of child support owed by the father to the mother up to and including May 31, 2023 were fixed at $5,000.00, and the father was ordered to pay these arrears at the rate of $100.00 per month until they are paid in full.

2. The father was ordered to provide updated income disclosure by July 1^st^ each year.

3. The parties were directed to maintain all health, medical and dental care coverage or any other benefit coverage available for the children for so long as they are entitled to support.

4. The mother was granted sole decision-making responsibility and primary residence respecting I.I.G. and M.A.G. She is required to provide the father with notice of the nature of major decisions that she must make at least 30 days in advance of making the decisions.

5. The parties are to communicate via the AppClose parenting communication app, and only respecting issues pertaining to the children.

6. The parties were both granted the right to obtain information regarding the children’s health, education and welfare from professionals involved with the children.

7. The mother was authorized to relocate with the children to Kentville, Nova Scotia.

8. The parties were ordered to disclose their respective municipalities of residence to each other in writing within 10 days of any relocation, and to notify the police authority in their respective municipalities of their residential address.

9. The order specifies that neither party shall be compelled to disclose their residential address to the other.

10. The father was granted virtual parenting time with the children during periods when he is not exercising in-person parenting time every Saturday from 12:00 p.m. until 1:00 p.m., and every Sunday from 2:00 p.m. until 3:00 p.m. The mother is not to be present in the room during these virtual parenting time visits, and the precise duration of the visits is to be determined based on the children’s attention spans and interest having regard for their ages.

11. The children were granted the right to call the father at such other times as they wish.

12. The order includes detailed provisions to address the parties’ mutual concerns respecting the possibility of the children being removed from Canada. Specifically:

a) The parties may not permit the children to travel outside of Canada until they reach the age of 18 years; and

b) The parties were ordered to notify every international airport in Canada and the United States of America, the Canada Border Services Agency, the Nigerian Embassy in Canada, the Canadian Embassy in Nigeria and the United States of America Customs and Border Protection, Transportation and Security Administration and Department of Homeland Security of the children’s prohibition from international travel by providing them with a signed letter attaching copies of the parties’ Minutes of Settlement and the order dated May 29, 2023 by no later than June 4, 2023.

13. The order also includes terms to address the mother’s concerns that the father could obtain identification documents respecting the children to facilitate their removal from Canada. It prohibits the father from applying for birth certificates, health cards, passports or any other identification for the children in Canada, Nigeria or any other country. In addition, the order directs both parties to notify the Government of Canada Passport Application Division, Service Ontario, the Nigerian Immigration Services Passport Division and any other Nigerian identification authorities of the father’s prohibition against applying for identification documents for the children by providing them with a signed letter and copies of the parties’ Minutes of Settlement and the order dated May 29, 2023 by no later than June 4, 2023.

[69] The outstanding issues for determination by the court after May 29, 2023 were the father’s parenting time, various other parenting terms and the father’s child support obligation commencing June 1, 2023. In regard to child support, both counsel focussed extensively during their Closing Submissions on the issue of the appropriate currency exchange rate to apply as between the Canadian dollar and the Nigerian naira for the purposes of calculating the father’s Nigerian income for child support purposes, as the father has been working in Nigeria and has been paid in Nigerian naira throughout 2023. At the conclusion of Closing Submissions on June 2, 2023, I directed counsel to serve and file supplementary Books of Authorities and brief Written Submissions addressing the law respecting applicable currency exchange rates as between the Canadian dollar and other foreign currencies and the impact if any of same in determining income for child support purposes. In her Written Submissions dated July 6, 2023, Ms. Ololade went beyond this issue and addressed for the first time the question of differential tax rates as between Canada and Nigeria in determining the father’s income. Pursuant to section 19(1)(c) of the Guidelines, the court may impute income to a spouse if they live in a country that has effective rates of income tax that are significantly lower than those in Canada. This issue had not been addressed at all in Closing Submissions, and no evidence had been adduced regarding any differences in tax rates between Canada and Nigeria at trial. Accordingly, I directed that counsel attend before me for a speak to appearance to determine Ms. Belansky’s position on behalf of the mother regarding this additional issue.

[70] I heard supplementary Closing Submissions from counsel on September 6, 2023. Both counsel acknowledged during this appearance that the issue of different tax rates as between Canada and Nigeria had not been raised at trial or in Closing Submissions, and that no evidence had been led at trial respecting this matter. Although the issue was raised by counsel for the father Ms. Ololade in her Supplementary Written Closing Submissions, Ms. Ololade took the position on September 6, 2023 that the issue should not in fact be considered since there was no evidentiary basis upon which the court could address the issue. By contrast, counsel for the mother Ms. Belansky suggested that the issue should be considered, since it appeared based on the father’s Supplementary Written Closing Submissions that the tax rate in Nigeria may be lower than in Canada. I inquired as to whether the parties could reach agreement respecting the tax rate differential, and it was clear that there was no consensus on this issue. I inquired further as to whether either party was requesting leave to re-open the trial to adduce additional evidence so that I could address this issue. Both counsel confirmed that neither party was seeking leave to re-open the trial to adduce additional evidence. Accordingly, I have not considered whether income should be imputed to the father pursuant to section 19(1)(c) of the Guidelines due to the lack of evidence regarding the effective income tax rates in Nigeria, and in particular, whether Nigeria has effective rates of income tax that are significantly lower than those in Canada. As the Ontario Court of Appeal recently emphasized in Barn v. Dhillon, 2023 ONCA 654 (C.A.), a party who wishes to have tax implications taken into consideration in relation to support orders must provide the court with the evidence and guidance that are required to address the issue. It is outside the purview of the judge to embark upon their own independent research and calculations respecting tax rates and other tax-related issues that could be relevant to a decision. Likewise, I am unable to address any imputation of income issues based on considerations such as differences in the costs of living or the levels of government benefits due to lack of evidence on those matters (T.(J.G.) v. N.(T.), 2001 ABQB 949 (Q.B.), reversed on other grounds 2003 ABCA 195 (C.A.)).

PART 4: THE PARENTING ISSUES

I. POSITIONS OF THE PARTIES

A. The Applicant Father’s Position

[71] The father seeks an order that until the mother and children relocate to Nova Scotia, he shall have unsupervised parenting time with I.I.G. and M.A.G. every weekend on Saturday and Sunday for at least four hours each day. He requests that the mother advise him of the precise date of her relocation. He expects that once the mother and children relocate to Nova Scotia, and for so long as he resides and works in Nigeria, he will be able to visit the children approximately 2 or 3 times per year in Nova Scotia. He requests that following the children’s relocation, he be granted parenting time every weekend when he is present in Nova Scotia on Saturday and Sunday, from 11:00 a.m. until 5:00 p.m. for the first two visits and to be extended until 7:00 p.m. thereafter. He proposes that he give the mother at least 3 weeks notice of when he will be in Nova Scotia to exercise his parenting time. With respect to holiday periods, he requests unsupervised summer parenting time with the children commencing in 2024, to occur at his residence in Richmond Hill, for one week in July and one week in August each year. He agrees to give the mother notice by June 1^st^ each year of his choice of summer holiday weeks. He also requests a week of parenting time each year during the Christmas holiday period, to occur at his residence in Ontario.

[72] The father requests that the following additional parenting terms be included in the final order:

1. That the children’s health cards accompany them during his parenting time.

2. That the mother must name him as the father and an emergency contact with the children’s schools.

3. That the parties maintain a reasonable and flexible position respecting parenting arrangements.

4. That he be granted the same right as the mother to attend the children’s schools and participate in their activities, inquire from their teachers about their progress and generally be permitted to attend the children’s school, daycare, doctor’s and dentist’s offices to obtain information about the children.

5. That the mother may not renew the children’s passports once they expire. Alternatively, that his consent be required for the mother to obtain or renew the children’s passports.

6. That the mother provide him with copies of the children’s Nigerian and Canadian passports or any other international passports obtained for the children.

7. That the mother keep him apprised in a timely way through AppClose of any telephone number by which he can contact the children.

8. That the mother continually update him about the children’s immigration status.

9. That the mother not change the children’s names.

[73] The father states that the parenting terms that he is requesting are reasonable, modest, practical and in the children’s best interests having regard for the fact that he will be living and working primarily in Nigeria for the foreseeable future. He argues that there are no grounds for his parenting time to be limited to short, supervised visits. He denies the mother’s allegations of family violence towards her and the children, apart from the one occasion when he assaulted her on August 24, 2018. He notes that he engaged in anger management, family violence and couple counselling to address the concerns about how he behaved on that occasion, and that his conduct towards the mother since that time has been appropriate. He submits that the mother’s concerns that he sexually abused I.I.G., and that he could potentially engage in sexually inappropriate conduct towards either of the children, are completely unfounded.

[74] The father states that the mother’s concerns that he may abduct I.I.G. and M.A.G. and remove them from Canada are also entirely unjustified. His counsel highlighted the numerous efforts that he has made since 2016 to make a life in Canada for the parties and the three children. She also emphasized the numerous terms that the father consented to on May 29, 2023 aimed at ensuring that neither party may remove the children from Canada.

[75] The father also rejects any suggestion on the part of the mother that he is unable to meet the children’s needs without professional supervision and support. He submits that he was a fully equal partner in caring for the children during the parties’ relationship, even after the parties reconciled in December 2018, and that FACS did not have any concerns about his parenting. He notes that his supervised visits with I.I.G. and M.A.G. have all been positive, with no concerns having been documented about his parenting or the quality of his interactions with the children.

[76] The father acknowledges that he has had limited time with I.I.G. and M.A.G. since the parties’ final separation on May 31, 2019. However, he submits that this should not be construed as evidence that he is not committed to the children, or that he does not make them a priority. He stresses that he has worked consistently on obtaining his permanent residence status, and that he has maximized the leave opportunities available to him through his employment with the MDCN to be in Canada. Although he obtained authorization from the Canadian government to remain in Canada until the summer of 2024, he emphasized that he also owed a professional and moral obligation to his employer in Nigeria to resume his duties after having been granted extended unpaid leaves and then a generous one year paid sabbatical leave in 2022. He testified that he will be spending the next several months in Nigeria studying for the examinations to become qualified as a physician in Canada, and to obtain official designation as a Project Manager so that he will be able to increase his income and maximize his financial support for A.T.G., I.I.G. and M.A.G. in the future. In addition, he stressed that he has made consistent and concerted efforts since the parties’ final separation to see the children, that the mother has resisted his efforts to have meaningful and unsupervised parenting time, that the COVID-19 pandemic and the resulting travel restrictions impeded his ability to return to Canada to see the children, and that he accepted limited supervised visitation notwithstanding his opposition to supervision so that he could maintain his relationship with the children.

B. The Respondent Mother’s Position

[77] The mother requests an order that that father’s ongoing parenting time with I.I.G. and M.A.G. be limited to supervised daytime visits, with the supervision being carried out either by a professional supervised parenting time agency or a third party agreed to in advance by the parties. Her position is that once she and the children relocate to Nova Scotia, and for so long as the father resides and works in Nigeria, the father should have parenting time with the children twice a year, with the visits to occur within the limits of the municipality where the children are residing. She opposes the father’s request for unsupervised parenting time with the children in Ontario for summer holidays and during the Christmas holiday period. She requests that the following additional terms and conditions be included in the parenting order:

1. The father shall be prohibited from removing the children from their school or day care or any other place they may be located.

2. The father shall be prohibited from removing the children from their municipality of residence.

3. The mother shall maintain the children’s government issued identification, including their birth certificates, health cards and passports.

4. The mother shall be permitted to apply for and renew Canadian or Nigerian passports for the children without the consent of the father.

5. The mother shall be permitted to apply for Canadian citizenship for I.I.G. without the consent or involvement of the father.

6. The father shall destroy any of the children’s identification documentation that he has in his possession, whether current or expired.

[78] The mother’s response to other aspects of the relief that the father has requested is as follows:

1. She opposes the father’s request that he be provided with copies of the children’s health cards during his parenting time periods, but she consents to him being provided with copies of the cards.

2. She opposes the father’s request that he be permitted to attend at the children’s schools.

3. She objects to the father’s request that she be prohibited absolutely from renewing the children’s passports. Although she consented to the term in the May 29, 2023 order that the children not travel outside of Canada until they are 18 years of age, her view is that it is not in the children’s best interests to permit their passports to lapse. In addition, she notes that I.I.G.’s passport expires in 2026, that her Canadian citizenship application will need to be submitted around that time, and that she will require a valid passport to proceed with that application. She consents to an order that she be prohibited from applying for renewals of the children’s passports after I.I.G. obtains her Canadian citizenship.

[79] The mother asserts that her position respecting the parenting issues is supported by the following concerns:

1. She claims that there is a history of family violence by the father towards her, including the physical assault in August 2018, verbal and emotional abuse, and a pattern of coercive and controlling behaviour.

2. She maintains her concerns that the father sexually interfered with the child I.I.G.

3. She has concerns that the father may abduct the children and remove them from Canada. In support of this concern, she argues that the father interfered with her efforts to obtain Canadian citizenship, that he did not cooperate in delivering the children’s passports following the separation and that he did not cooperate in renewing I.I.G.’s Nigerian passport, which was necessary to extend I.I.G.’s study visa.

4. She asserts that the father has not demonstrated a commitment to being a consistent and reliable parent to A.T.G., I.I.G. and M.A.G. In this regard, she relies on his frequent returns to Nigeria, his decision to leave A.T.G. in Canada with a family friend and then with his new wife, and his decision to remain in Nigeria since January 2023 instead of staying in Canada and pursuing employment opportunities here.

5. She has concerns regarding the father’s parenting generally and his ability to meet the children’s physical and emotional needs if he were granted unsupervised parenting time.

6. She also has concerns regarding the father’s overall stability and his ability to commit to a consistent parenting time plan for the children. She highlighted that he has had numerous residences since the parties’ separation, that his relationship with his new wife Ms. O.D.B. is fairly new and that the children have not even met Ms. O.D.B. or her son A.B. In addition, she seriously questions his alleged commitment to working towards Canadian citizenship and making a life here and submits that the evidence in fact suggests that he intends to remain in Nigeria.

7. With respect to the father’s request for extended parenting time with the children at the home of his wife in Richmond Hill, she notes that the court has very little information about Ms. O.D.B. and her son A.T., and that the father was unable to confirm for certain whether Ms. O.D.B. has a history of criminal or child protection involvement. She submits that there is also insufficient evidence before the court respecting the residential arrangements at this home to allow the court to determine whether such extended parenting time would be in the children’s best interests.

II. THE LAW RESPECTING THE PARENTING ISSUES

A. Relevant Legislative Provisions

1. Application for a Parenting Order, and the Concepts of “Decision-Making Responsibility” and “Parenting Time”

[80] The parties have advanced their parenting claims in the context of a divorce proceeding, and therefore the governing legislation is the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended. The legislative provisions relating to parenting issues under that Act focus on parental responsibilities for children rather than rights, and the key legal terms relating to parenting issues are “parenting orders,” “decision-making responsibility,” “parenting time,” and “contact orders.” The concept of contact orders applies to individuals who are not spouses and who seek an order to have contact with a child (section 16.5). It is therefore not relevant in this proceeding.

[81] Sections 16.1(1) to (3) of the Divorce Act set out the court’s jurisdiction to make an original parenting order at first instance:

Parenting order

16.1 (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by

a) either or both spouses; or

b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.

Interim order

(2) The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection.

Application by person other than spouse

(3) A person described in paragraph (1)(b) may make an application under subsection (1) or (2) only with leave of the court.

[82] The wording of section 16.1(1) indicates that a parenting order encompasses the two key concepts of “decision-making responsibility” respecting children and “parenting time.” Section 2(1) of the Divorce Act defines the terms “decision-making responsibility” and “parenting time” as follows:

decision-making responsibility means the responsibility for making significant decisions about a child’s wellbeing, including in respect of

a) health;

b) education;

c) culture, language, religion and spirituality; and

d) significant extra-curricular activities

parenting time means the time that a child of the marriage spends in the care of a person referred to in subsection 16.1(1), whether or not the child is physically with that person during that entire time.

[83] Section 16.2(2) elaborates upon the meaning and scope of the concept of “parenting time” by stipulating that unless otherwise ordered, the term encompasses the exclusive authority to make day-to-day decisions affecting a child during a person’s allocated time with the child:

Day-to-day decisions

16.2(2) Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(a) has exclusive authority to make, during that time, day-to-day decisions affecting the child.

[84] This provision clarifies that a party who has not been granted responsibility for making significant decisions about a child’s wellbeing within the meaning of section 2 of the Divorce Act nonetheless plays an important role in the child’s life and retains a decision-making role in regard to daily issues that can be equally important to the child’s overall wellbeing. The section protects children and parents who have parenting time with each other from attempts by a party with sole or final decision-making responsibility to intrude upon or marginalize the role of the other parent.

[85] Section 16.4 of the Divorce Act further expounds upon the meaning and scope of the concepts of “decision-making responsibility” and “parenting time” under the Act by establishing that unless otherwise ordered, both concepts encompass the entitlement to obtain information about a child’s wellbeing from the other party, as well as from any other individuals who are likely to have such information:

Entitlement to information

16.4 Unless the court orders otherwise, any person to whom parenting time or decision-making responsibility has been allocated is entitled to request from another person to whom parenting time or decision-making responsibility has been allocated information about the child’s wellbeing, including in respect of their health and education, or from any other person who is likely to have such information, and to be given such information by those persons subject to any applicable laws.

[86] This provision further safeguards the influence and involvement of a parent who has been allocated parenting time but not any aspects of decision-making responsibility by protecting against the development of informational asymmetry between parents respecting a child’s wellbeing.

2. Contents of a Parenting Order

[87] Sections 16.1(4) to (9) of the Divorce Act outline the general powers of the court in an application for a parenting order under section 16.1(1), and the types of provisions that the court can include in a parenting order. These provisions give the court very broad powers to craft an order that will most fully promote the child’s needs and best interests:

Contents of parenting order

16.1(4) The court may, in the order,

a) allocate parenting time in accordance with section 16.2;

b) allocate decision-making responsibility in accordance with section 16.3;

c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and

d) provide for any other matter that the court considers appropriate.

Terms and conditions

(5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.

Family dispute resolution process

(6) Subject to provincial law, the order may direct the parties to attend a family dispute resolution process.

Relocation

(7) The order may authorize or prohibit the relocation of the child.

Supervision

(8) The order may require that parenting time or the transfer of the child from one person to another be supervised.

Prohibition on removal of child

(9) The order may prohibit the removal of a child from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.

[88] Section 16.1(4)(a) referred to above directs that in making an original parenting order, the court may “allocate parenting time in accordance with section 16.2.” Section 16.2(1) provides that parenting time may be allocated by way of a schedule.

[89] Section 16.1(4)(b) set out above specifies that in making a parenting order, the court may “allocate decision-making responsibility in accordance with section 16.3.” Section 16.3 provides as follows:

Allocation of decision-making responsibility

16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.

[90] Section 16.1(6) of the Act referred to above authorizes the court to direct parties to attend a “family dispute resolution process,” which is defined in section 2(1) of the Act as follows:

family dispute resolution process means a process outside of court that is used by parties to a family law dispute to attempt to resolve any matters in dispute, including negotiation, mediation and collaborative law

[91] Section 16.6(1) of the Divorce Act provides that if the parties submit a parenting plan for the court’s consideration in making a parenting order, the court must include the parenting plan in its order, unless it is of the opinion that the terms of the plan are not in the child’s best interests:

Parenting Plan

16.6 (1) The court shall include in a parenting order or a contact order, as the case may be, any parenting plan submitted by the parties unless, in the opinion of the court, it is not in the best interests of the child to do so, in which case the court may make any modifications to the plan that it considers appropriate and include it in the order.

[92] Section 16.6(2) defines the term “parenting plan” as “a document or part of a document that contains the elements relating to parenting time, decision-making responsibility or contact to which the parties agree.”

3. Legislative Factors and Considerations in Making a Parenting Order

[93] Section 16 of the Divorce Act sets out the factors and considerations that the court must consider in making a parenting order or a contact order. These factors and considerations apply to all aspects of a parenting or contact order, including decision-making responsibility, parenting time, and any terms, conditions and restrictions to be included in any parenting order. Section 16(7) establishes that references to a parenting order and a contact order in section 16 include interim parenting and contact orders and to orders varying parenting and contact orders.

[94] Section 16(1) of the Divorce Act directs that the court shall take into consideration “only the bests interests of the child of the marriage in making a parenting order or a contact order.” Section 16(3) sets out a number of factors that the court must weigh in carrying out the best interests analysis. In considering those factors, the court is required by virtue of section 16(2) to “give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing.” The primary consideration articulated in section 16(2) recognizes that in some cases, there may be conflicts in attempting to weigh the enumerated best interests criteria. The courts have been given a clear direction that any such difficulties in carrying out the assessment of a child’s best interests should be resolved in favour of ensuring that the child’s physical, emotional and psychological safety, security and wellbeing are promoted.

[95] Section 16(3) of the Divorce Act sets out the following factors that the court must consider in determining the child’s best interests:

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 wellbeing of the child.

[96] Section 16(3)(j) of the Act specifically highlights the occurrence of “family violence” and the impact of such violence as important considerations 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

[97] The definition of family violence refers to conduct by a “family member” towards another family member. Section 2(1) of the Act defines the term “family member” broadly as follows:

family member includes a member of the household of a child of the marriage or of a spouse or former spouse as well as a dating partner of a spouse or former spouse who participates in the activities of the household

[98] Section 16(4) of the Divorce Act dictates that in considering the impact of family violence pursuant to section 16(3)(j), the court must take into account several factors relating to family violence, as follows:

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.

[99] Section 16(5) of the Divorce Act addresses the relevance of a person’s past conduct in conducting the best interests analysis as follows:

Past conduct

16(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

[100] Section 16(6) of the Divorce Act must also be considered in determining the parenting time arrangements that are in the child’s best interests. It recognizes that children should have as much time with each parent as is consistent with their best interests:

Parenting time consistent with best interests of child

16(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

4. The Legislative Duties of Parties

[101] The Divorce Act imposes several duties on parties to a parenting proceeding, which are aimed at ensuring that their parenting remains focussed on the child’s best interests, that children are safeguarded against unnecessary conflict, and that parenting issues are addressed in an orderly manner, with all relevant information being provided to the court. The parties’ compliance with these important duties is a relevant consideration in crafting a parenting order that is in a child’s best interests.

[102] The first legislative duty is set out in section 7.1 of the Act. It requires parties to keep the best interests of the child at the forefront of their minds at all times in carrying out their parenting responsibilities and privileges:

Best interests of child

7.1 A person to whom parenting time or decision-making responsibility has been allocated in respect of a child of the marriage or who has contact with that child under a contact order shall exercise that time, responsibility or contact in a manner that is consistent with the best interests of the child.

[103] Second, section 7.2 of the Act imposes a clear duty on parties to take all reasonable measures to protect children from conflict:

Protection of children from conflict

7.2 A party to a proceeding under this Act shall, to the best of their ability, protect any child of the marriage from conflict arising from the proceeding.

[104] Third, section 7.3 requires parties to try to resolve the issues in a proceeding through a family dispute resolution process:

Family dispute resolution process

7.3 To the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process.

[105] Section 2(1) of the Act defines “family dispute resolution process” as follows:

family dispute resolution process means a process outside of court that is used by parties to a family law dispute to attempt to resolve any matters in dispute, including negotiation, mediation and collaborative law.

[106] Finally, sections 7.4 and 7.5 require parties to provide complete and updated information to the court, and to comply with orders made under the Act:

Complete, accurate and up-to-date information

7.4 A party to a proceeding under this Act or a person who is subject to an order made under this Act shall provide complete, accurate and up-to-date information if required to do so under this Act.

Duty to comply with orders

7.5 For greater certainty, a person who is subject to an order made under this Act shall comply with the order until it is no longer in effect.

B. ASSESSING THE CHILD’S BEST INTERESTS: ELABORATION UPON THE RELEVANT FACTORS AND CONSIDERATIONS

1. General Principles Respecting the Best Interests Analysis

[107] In cases involving parenting issue, all parties bear the evidentiary onus of demonstrating where the best interests of the child lie, and there is no legal presumption in favour of maintaining the existing parenting arrangements (Persaud v. Garcia-Persaud, 2009 ONCA 782 (C.A.); A.E. v. A.E., 2021 ONSC 8189 (S.C.J.), at para. 89; K.M. v. J.R., 2022 ONSC 111 (S.C.J.), at para. 71; S.V.G. v. V.G., 2023 ONSC 3206 (S.C.J.), at para. 89).

[108] The list of considerations relevant to the best interests analysis set out in section 16 of the Divorce Act is not exhaustive. For instance, a parent’s history of conduct regarding the child’s financial needs is not specifically enumerated, but the courts have held that a party’s failure to financially support their children regularly in a responsible manner is a relevant consideration in assessing where the child’s best interests lie (Jama v. Mohamed, 2015 ONCJ 619 (O.C.J.); L.B. v. P.E., 2021 ONCJ 114 (O.C.J.)). The considerations that the court should focus on in assessing the child’s best interests, and the weight that should be accorded to each factor, will vary depending on the unique features of every child and case (Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 (S.C.C.); Van de Perre v. Edwards, 2001 SCC 60 (S.C.C.), at para. 13; Barendregt v. Grebliunas, 2022 SCC 22 (S.C.C.), at para. 97; B.J.T. v. J.D., 2022 SCC 24 (S.C.C.), at para. 55). As the Supreme Court of Canada highlighted in Barendregt, at para. 8, the best interests inquiry “is a heavy responsibility, with profound impacts on children, families and Society. In many cases, the answer is difficult - the court must choose between competing and often compelling visions of how to best advance the needs and interests of the child.” The court is not required to specifically enumerate and analyze all of the criteria set out in section 16 of the Act, but rather must consider all of the relevant information in the particular case before it (Walsh v. Walsh, 1998 CanLII 7134 (ON CA), [1998] O.J. No. 2969, 39 R.F.L. (4^th^) 416 (C.A.); Phillips v. Phillips, 2021 ONSC 2480 (S.C.J.), at para. 47; A.E. v. A.E., at para. 89). The wide array of factors relevant to the best interests analysis under the Divorce Act allows for a uniquely tailored analysis of the parenting issues, woven from the particular condition, means, needs and circumstances of the child whose wellbeing is under consideration.

[109] The Supreme Court of Canada has emphasized that the analysis of the child’s best interests in the context of parenting disputes must be undertaken from the lens of the child rather than the parents’ perspectives; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child (Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 (S.C.C.), at paras. 74 and 202; Gordon, at pp. 50, 54, 68; F. v. N., 2022 SCC 51 (S.C.C.), at para. 61). However, the court has also recognized that “a child’s best interests are furthered by a well-functioning and happy parent” and that this symbiotic connection must therefore be considered as part of the best interests assessment (Barendregt, at para. 169). As the court stated in Barendregt, at para 173:

It is often difficult to disentangle the interests of a parent from the interests of a child. Indeed, "the reality that the nurture of children is inextricably intertwined with the wellbeing of the nurturing parent" is far from novel: Pelech v. Pelech, 1987 CanLII 57 (SCC), [1987] 1 S.C.R. 801, at p. 845; see also Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670 (S.C.C.), at pp. 724-25, per L'Heureux-Dubé J. A child's welfare is often advanced in tandem with improvements in the parent's financial, social, and emotional circumstances.

[110] In carrying out the best interests analysis, the court should not apply a standard of perfection to parents (S.V.G. v. V.G., at para. 93). Megaw J. emphasized this point in Prime v. Prime, 2020 SKQB 326 (Q.B.), where he stated as follows at para. 59:

I am mindful the determination of the best interests of the children is not based on a picture of perfect parenting by either party. The course of family life is such that specific incidents, which do not actually endanger or adversely affect children, do not impact the final decision. The court must consider the entirety of the situation involving the children. Parents are not expected to be free of mistake or misstep. They are expected to have the best interests of their children in mind. And, they are expected to parent in accordance with these best interests.

2. Family Violence Considerations

i. General Principles Respecting Family Violence

[111] As discussed above, section 16(3)(j) of the Divorce Act requires the court to consider any family violence and the impact of such violence on any matter relevant to the child’s best interests. Section 16(4) outlines specific factors that the court must take into account in considering the impact of family violence. Section 16(2) of the Act also highlights the need for courts to consider family violence issues by specifically directing that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing when determining their best interests. The mother has made serious allegations of family violence by the father towards herself and the children, and it is therefore necessary to consider in more detail the scope of these family violence provisions. The Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended (the “CLRA”) now includes similar provisions relating to family violence, and therefore the caselaw respecting those provisions is also relevant.

[112] Concerns about family violence have always been a significant consideration in conducting the best interests analysis in parenting cases. However, the family violence provisions of the CLRA and the Divorce Act provide much-required guidance to the parties, counsel and the courts to ensure that decision-making about parenting issues reflects the current knowledge about the full impact of family violence on children and other family members. The definition of “family violence” in the Divorce Act is far-reaching, and the list of examples of conduct that fall within its scope is non-exhaustive; it simply catalogues some of the most prevalent forms of family violence. The definition goes far beyond acts of physical aggression towards individuals or objects and extends to actions that undermine a person’s physical, emotional and financial autonomy or their general psychological or emotional wellbeing. The broad definition recognizes the many insidious forms that domestic violence can take and accords each equal weight in the best interests assessment.

[113] Significantly, the expansive scope of the family violence provisions also reflects the many ways in which children may be victimized by such violence, and the importance of appreciating the various forms that child victimization may take in carrying out the best interests assessment. The definition of “family violence” in section 2 of the Divorce Act clarifies that in the case of a child, family violence includes both direct and indirect exposure to the violence. Accordingly, as I noted in M.A.B. v. M.G.C., 2022 ONSC 7207 (S.C.J.), at para. 174, and in S.V.G. v. V.G., at para. 96, children may suffer family violence in the following ways:

1. The child may be the direct victim of family violence if the abusive conduct is inflicted specifically towards them.

2. The child may also be victimized by direct exposure to family violence towards another family member, if they observe the violence or are close by when it occurs and are able to see or hear what is happening.

3. The child may also be indirectly exposed to and victimized by family violence towards other family members in many ways. For instance, they may experience the aftermath of the violence. This can include observing the family member’s physical injuries or emotional distress following the violence, hearing about the violence after it has occurred, seeing changes in the victim’s behaviour due to the violence, and becoming embroiled in a police or child protection investigation relating to the violence. Where the directly victimized family member is a parent, the child can also suffer indirect consequences of the violence if the parent’s physical, emotional and psychological wellbeing are compromised, since these consequences in turn often negatively impact their ability to meet the child’s physical and emotional needs.

[114] The comprehensive and far-reaching nature of the family violence provisions in the Divorce Act represents a statutory recognition of the profound direct and indirect destructive effects that family violence in its many forms can have on children. The Supreme Court of Canada recently commented on these consequences in Barendregt, stating as follows (at para. 143):

The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al., “A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I.J.C.Y.F.S. 493, at p. 497.

[115] Having regard for the damaging impacts of family violence, the courts must construe family violence provisions in a broad and purposive manner so as to maximize the protective scope of the provisions for children and their family members who are facing family violence in its many forms. This approach is mandated by the general principles of statutory interpretation that legislative provisions must be construed in their entire context and grammatical and ordinary sense, and in a fair, large and liberal manner that best ensures the attainment of their objects (Michel v. Graydon, 2020 SCC 24 (S.C.C.), at paras. 21, 40, 54 and 69; M.A.B. v. M.G.C., at para. 176). A broad, liberal and purposive interpretation of the family violence provisions is also mandated by the general principle that legislation must be construed in a manner that supports compliance with our international law obligations (Michel, at para. 103). In this regard, Article 19 of the United Nations Convention on the Rights of the Child, 1989, Can T.S. 1992 No. 3 requires that parties to the convention take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parents or others who have care of the child. Article 3 stipulates that in all actions concerning children, including those of the courts, the best interests of the child shall be a primary consideration (M.A.B. v. M.G.C., at para. 176).

ii. The Importance of Identifying the Specific Type of Family Violence

[116] The broad definition of “family violence” is multi-tiered and overlaps on many fronts. It is clear that many types of behaviour may fall within various aspects of the “family violence” definition. It is important to identify specifically how each alleged incident of violence may meet the definition of “family violence,” because this assists the court in understanding precisely how the family violence has impacted the victim. A full appreciation of the impact of the family violence is in turn critical to the court’s ability to formulate a decision-making and parenting time framework that addresses the concerns and fosters the child’s best interests. A clear identification of the grounds for finding that behaviour constitutes family violence is particularly critical where it forms part of a pattern of coercive and controlling behaviour or it causes family members to fear for a person’s safety. This is because these two factors must also be specifically weighed in considering the impact of the family violence, by virtue of sections 16(4)(b) and (f) of the Divorce Act.

[117] The concept of “coercive and controlling behaviour” is distinct from other forms of family violence in that it can consist of many different types of acts occurring over time which, in isolation, do not seem abusive or significant, but which paint a picture of a very destructive relationship when viewed in their totality. Accordingly, the significance of the individual incidents can only be truly understood in the context of the larger picture. In addition, a pattern of coercive and controlling behaviour is particularly concerning because it is easier to inflict in its various forms post-separation than other types of family violence. Further to the principles of legislative interpretation discussed above, the concept of “coercive and controlling behaviour” should be interpreted in a large and liberal manner that best ensures the attainment of the objects of the family violence provisions of the legislation, which are to protect and promote the safety and wellbeing of family members. To date, the caselaw reflects such a broad and purposive approach to the scope of this type of family violence. As I discussed in M.A.B. v. M.G.C., at para. 183, a general review of this caselaw indicates that “coercive” behaviour includes conduct that is threatening, intimidating or exerts inappropriate pressure on the other person. Behaviour is broadly being considered as “controlling” if its intent or effect is to inappropriately manage, direct, restrict, interfere with, undermine or manipulate any important aspect of the other person’s life, including their important relationships and their physical, emotional, intellectual, spiritual, social and financial autonomy or wellbeing. As examples of this broad and purposive interpretation, the courts have made findings of a pattern of coercive and controlling behaviour following the separation of parties in cases where a parent has made numerous unsubstantiated allegations against the other party (Armstrong v. Coupland, 2021 ONSC 8186 (S.C.J.); I.S. v. J.W., 2021 ONSC 1194 (S.C.J.); K.M. v. J.R.; Ammar v. Smith, 2021 ONSC 3204 (S.C.J.); M.A.B. v. M.G.C.; S.V.G. v. V.G.), where a party has engaged in a pattern of inappropriate litigation tactics to gain an advantage in the Family Law case (I.S. v. J.S., 2021 ONSC 1194 (S.C.J.); S.V.G. v. V.G.), and where a party has engaged in behaviour that has had the effect of undermining the other parent’s authority or influence and alienating the child from that parent without justification (E.V. v. V.-E., 2021 ONSC 7694 (S.C.J.); Ammar; I.S. v. J.W.; S.S.G. v. S.K.G., 2022 ABQB 130 (Q.B.), per Devlin J.; M.A.B. v. M.G.C.; S.V.G. v. V.G.).

[118] I have indicated that behaviour may constitute family violence within the meaning of section 2(1) of the Divorce Act if it causes a family member to fear for their own safety or for that of another person. It is well established in the law respecting restraining orders that that notion of fearing for one’s safety or that of another person extends not only to physical safety, but also to the person’s emotional and psychological safety (Lawrence v. Bassett, 2015 ONSC 3707 (S.C.J.), per Kiteley J.; Tiveron v. Collins, 2017 ONCA 462 (C.A.); Stephens v. Somerville, 2021 ONSC 1958 (S.C.J.), per Mitrow J.; Reis v. Lovell, 2022 ONSC 1201 (S.C.J.), at para. 52; S.V.G. v. V.G., at para. 101). In the Family Law context, it has been found that a parent’s behaviour of exposing a child to conflict and constantly undermining the other parent in the eyes of the child may also constitute family violence against the other parent if it causes them to fear for the psychological and emotional safety of the children (Tone v. Tone, 2021 ONSC 3747 (S.C.J.), per Fowler-Byrne J.).

[119] The related notion of psychological abuse is separately identified as a form of family violence in section 2(f) of the Divorce Act. The Collins English Dictionary defines the word “psychological” broadly as meaning “concerned with a person’s mind and thoughts.” Where psychological abuse is alleged, there is often a tendency to focus on whether clear psychological harm has occurred as part of the determination of whether there has been abusive conduct. However, the first step is to determine whether the alleged actions are psychologically abusive. Evidence that the conduct has led to psychological harm to the victim is relevant in addressing the impact of the abuse and the crafting of an appropriate parenting order. In determining whether psychological abuse has caused psychological harm, expert evidence is helpful but is not required (Tone; M.A.B. v. M.G.C., at para 186; S.V.G. v. V.G., at para. 102). The caselaw relating to the concept of psychological abuse establishes that making numerous unsubstantiated allegations of abuse to police, child protection authorities and other professionals can fall within the scope of this type of family violence (K.M. v. J.R.; Ammar; M.A.B. v. M.G.C.; S.V.G. v. V.G.), as can engaging in behaviour that undermines the other parent and alienates a child from that parent (E.V. v. V.-E.; Bors v. Beleuta, 2019 ONSC 7029 (S.C.J.), aff’d 2021 ONCA 513 (C.A.); Ammar; M.A.B. v. M.G.C.; S.V.G. v. V.G.).

iii. Assessing the Credibility and Reliability of Family Violence Allegations

[120] As I discussed at length in M.A.B. v. M.G.C., assessing the credibility and reliability of family violence allegations is a challenging exercise that requires a solid appreciation of the overall context within which family violence occurs (see also Barendregt, at para. 183). This context includes the typical dynamics of violent relationships between family members, the impact of violence on the victims and their ability to disclose the violence, and other social, spiritual, economic and cultural considerations that may be preventing the victim from talking about the violence. Having regard for the complex social dynamics around family violence, the courts must resist assessing a claimant’s credibility against stereotypical notions of what a victim should have done in similar circumstances. The reason for this is that trauma can significantly affect a victim’s cognitive functioning and physiology in many ways, and therefore victims of family violence may not react or interact in ways that one may generally expect them to (R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852 (S.C.C.), at pp. 871-890; R. v. Naslund, 2022 ABCA 6 (C.A.), at para. 141; A.v. A., 2022 ONSC 1303 (S.C.J.), at para. 63; McLellan v. Birbilis, 2021 ONSC 7048 (S.C.J.), at para. 72, per Tellier J.).

[121] The social context considerations around family violence are such that the typical indicators of credibility in the litigation arena are unhelpful in some situations and may in fact lead to distorted and dangerous outcomes. For example, one traditional yardstick for assessing credibility is whether the witness can provide a clear, detailed and consistent version of the events in question, with a solid recollection of the chronology of those events. However, victims of family violence often suffer from significant trauma associated with the abuse, which may affect their ability to provide a detailed, consistent and accurate recollection and timeline of the events in question (K.K. v. M.M., 2021 ONSC 3975 (S.C.J.); aff’d 2022 ONCA 72 (C.A.)). In addition, as the Supreme Court of Canada emphasized in Barendregt, “family violence often takes place behind closed doors, and may lack corroborating evidence” (at para. 144; see also V.M.W. v. J.Mc.-M., 2021 ONCJ 441 (O.C.J.), at para. 167, per Zisman J.; W.A.C. v. C.V.F., 2022 ONSC 2539 (S.C.J.), at para. 396, per Finlayson J.). Furthermore, there may not be evidence of prior consistent disclosures of family violence to rebut claims of recent fabrication, as there are many reasons why victims of family violence may not disclose the violence (V.M.W. v. J.Mc.-M, at para. 167; W.A.C. v. C.V.F., at para. 396).

[122] Notwithstanding these challenges in assessing the credibility of family violence claims, and the need for caution in relying on traditional credibility indicators, courts must remain cognizant of the reality that some allegations are in fact fabricated or exaggerated. Being closed-minded to these possibilities poses an equally serious threat to the furtherance of justice in cases where family violence claims are advanced, and the courts must therefore meticulously assess the evidence in its totality to ensure that family violence allegations are credible and are not being maliciously advanced to obtain a litigation advantage (Wilson v. Sinclair, 2022 ONSC 2154 (S.C.J.), per Fryer J.; W.A.C. v. C.V.F., at para. 397; Bandyopadhyay v. Chakraborty, 2021 ONSC 5943 (S.C.J.); Kinsella v. Mills, 2020 ONSC 4786 (S.CJ.); A.E. v. A.E., at paras. 276-281; Lee v. Eckenwiller, 2021 ONSC 6519 (S.C.J.), at paras. 27-29; M.A.B. v. M.G.C.; S.V.G. v. V.G.).

[123] The fact that there have been criminal investigations and charges related to allegations of family violence, and the outcome of those charges, may be relevant in addressing the family violence claims in Family Law proceedings, but they will not be determinative of whether the violence occurred (Batsinda v. Batsinda, 2013 ONSC 7869 (S.C.J.), at para. 41; Matthew v. Barazmi, 2021 ONSC 7240 (S.C.J.); M.A.B. v. M.G.C., at para. 181). By the same token, the fact that criminal charges have been withdrawn is not determinative, having regard for the lower standard of proof in Family Law proceedings as compared to criminal prosecutions.

3. The Ability and Willingness of Parties to Communicate and Cooperate on Matters Affecting the Child

[124] The ability of parties to communicate and cooperate on matters affecting the children is typically seen as particularly important to the issue of parental decision-making. However, even in cases such as this one where decision-making responsibility has been decided, this is a critical consideration in framing parenting time and other parenting terms that are in the child’s best interests. Evidence that a party is unwilling without justification to communicate and cooperate about parenting matters provides insight into that party’s overall general attitude towards the other party. It may underscore the need to include special protections or clarifications in the order for the benefit of the other party in order to safeguard their influence and role in the child’s life and eliminate opportunities for the other parent to undermine their relationship with the child.

4. Section 16(6): The Parenting Time Factor

[125] As noted above, section 16(6) of the Divorce Act requires that in allocating parenting time, the court must give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child. This principle, referred to in the past as “the maximum contact principle,” recognizes that generous and meaningful parenting time with each parent is usually important and should be encouraged to the extent that it benefits the child. However, the principle is simply a guide, and it does not create a presumption in favour of equal time or maximum time with each parent. It always remains subject to the overriding best interests test and the paramount considerations set out in section 16(2) of the Divorce Act of the child’s physical, emotional and psychological safety, security and wellbeing (Barendregt, at paras. 9, 125, 135; Knapp v. Knapp, 2021 ONCA 305 (C.A.), at para. 34). In Barendregt, the Supreme Court of Canada directed that going forward, the principle should be referred to as “the parenting time factor” rather than the maximum contact principle” to reinforce the child-centric nature of the inquiry (at para. 135). The courts have clearly emphasized over the years that if increasing parenting time with a parent would not in fact support the child’s best interests, it should not be ordered (Young, at para. 40; Gordon, at p. 49; Barendregt, at paras. 9, 135; B.V. v. P.V., 2012 ONCA 262 (C.A.), at para. 15; Rigillo v. Rigillo, 2019 ONCA 548 (C.A.), at para. 4; Knapp, at para. 30).

5. The Relevance of the Statutory Duties on Parties in Assessing the Child’s Best Interests and Formulating an Appropriate Parenting Order

[126] The duties imposed on parties pursuant to sections 7.1 to 7.5 of the Divorce Act set out basic ground rules that they are expected to comply with in carrying out their parenting responsibilities and privileges. Section 16 of the Act does not specifically enumerate a party’s ability and willingness to comply with these duties as best interests factors that the court must consider, but they are by necessary implication key considerations in deciding upon the most appropriate decision-making and parenting time arrangements for children. Failing to comply with these duties may raise serious concerns about a parent’s capacity to prioritize their child’s interests above their own, to appreciate the child’s need for a peaceful upbringing, and to respect the rule of law (M.A.B.v. M.G.C., at para 170).

[127] Focussing on section 7.2 of the Divorce Act, the duty imposed on parties to protect children from conflict arising from court proceedings is a statutory recognition that children’s exposure to conflict can significantly undermine their overall functioning and wellbeing, and underscores that the parties’ ability to comply with this duty must factor prominently in the best interests assessment. The caselaw has rolled this duty into the best interests analysis as a key consideration in deciding all parenting issues and crafting parenting frameworks that support the child’s needs and wellbeing (see for example M.A. v. M.E., 2021 OCJ 555 (O.C.J.), per Sherr J.; V.M.W. v. J.Mc.-M., per Zisman J.; Tone; J.L.Z. v. C.M.Z., 2021 ABCA 200 (C.A.); M.A.B. v. M.G.C.). As Pazaratz J. accentuated in K.M. v. J.R., if parties are unable to safeguard children from conflict, the court must take matters into its own hands by uncovering and exposing the sources of the conflict and imposing terms targeted at eliminating those causes. Pazaratz J. emphasized that in framing the terms of a parenting order, shielding children from conflict must always take priority over parental rights, preferences and convenience, and it may be necessary for the sake of the child to impose terms that are costly and challenging for parties to accept and comply with (at para 352).

[128] The duty set out in section 7.3 for parties to attempt, where appropriate, to resolve their Family Law issues through a family dispute resolution process, coupled with the court’s power set out in section 16.1(6) of the Act to direct parties to participate in such a process, reflect a general trend in Family Law away from an adversarial culture of litigation towards a culture of negotiation (Colucci v. Colucci, 2021 SCC 24 (S.C.C.), at para. 69). In Colucci, the Supreme Court of Canada emphasized that in the absence of family violence or significant power imbalances, parents should be encouraged to resolve their disputes themselves outside of court. It stressed that reaching a negotiated settlement of Family Law issues “not only saves resources but also reduces the need for future court applications by setting up a less acrimonious relationship between the parties” (at para. 69). The willingness of parties to engage in family dispute resolution processes in appropriate circumstances during the course of litigation to address parenting issues, and their overall conduct while participating in such processes, are relevant considerations in carrying out the best interests analysis at trial. These factors may reveal a great deal about the parties’ openness to accessing professional support when appropriate, their ability to cooperate with each other and professionals in relation to child-related issues and their capacity to place their children’s needs and interests above their own.

6. Supervision of Parenting Time

[129] The mother requests that the father’s parenting time be supervised. It is therefore necessary to consider the legal principles relating to supervision of parenting time. As with all parenting-related issues, a request for supervised parenting time is governed by the general best interests of the child test and the factors set out in section 16 of the Divorce Act. In applying these factors, the courts have developed a number of general principles and considerations to assist the court in carrying out the analysis. None of these are determinative, as the outcome of the best interests assessment must always turn on the particular facts of each case and the needs of the child in question. The principles and factors are discussed in the cases of Jennings v. Garrett, 2004 CanLII 17126 (ON SC), 2004 CarswellOnt 2159 (S.C.J.), per Blishen J, Baldwin v. Baldwin, 2015 ONSC 1743 (S.C.J.), per Miller J., Young v. Hanson, 2019 ONSC 1245 (S.C.J.), per Chozik J., B.R.M. v. M.A.E.M., 2021 ONSC 2791 (S.C.J.), per Finlayson J., P.P. v. A.V., 2021 ONSC 7359 (S.C.J.), per Himel J., and H. v. A., 2022 ONSC 1560 (S.C.J.), per Kraft J. Drawing from those decisions and the statutory provisions in the Divorce Act pertaining to the best interests inquiry, the following is a non-exhaustive list of relevant principles and factors to guide the court in deciding whether supervision of parenting time is appropriate:

1. The imposition of supervision on a parent’s time with a child materially affects the opportunity for meaningful parenting time and the quality of that time. Having regard for the principle set out in section 16(6) of the Divorce Act that a child should have as much parenting time with each parent as is consistent with their best interests, there must be compelling reasons and evidence in support of the need for supervision.

2. However, it is important to avoid a doctrinal approach to the issue of supervised parenting time, and to refrain from establishing principles that may hover dangerously close to creating presumptions. This is because the best interests analysis is a highly fact-driven and contextualized undertaking that must always revolve around the particular characteristics and needs of the child in question.

3. The determination of whether supervision of parenting time is in the child’s best interests must take into account society’s developing awareness of social issues that impact on the safety and overall wellbeing of children, including the impact of all forms of family violence on children.

4. Supervision of parenting time or exchanges may be appropriate where it is necessary to protect children from risk of harm, including exposure to family conflict. In determining this issue, the court should consider all relevant factors, including:

a) Whether there is a history of family violence as that term is broadly defined in the Divorce Act, towards either the child or a family member;

b) Whether the parent has a history of anger management difficulties generally, or aggression towards other people;

c) Does the parent have a history of substance abuse issues, and if so, have they addressed those issues to the court’s satisfaction, and how may those concerns impact the child?

d) Are there flight risk concerns respecting the parent?

e) Are there any concerns regarding the parent’s overall physical, cognitive, mental or emotional health functioning that render supervision appropriate for the safety and wellbeing of the child?

f) Has there been child protection intervention, or is there an ongoing child protection investigation, and if so, have the child protection professionals involved given any temporary or indefinite directions respecting supervision of the party’s parenting time? If so, what are the grounds for such directions?

5. Supervised parenting time may also be in the child’s best interests where the parent-child relationship has been severed or undermined for any reason, including alienation by the other party or a third party, illness, or geographical distance, and the evidence indicates that supervision by a third party would assist the child in re-establishing the relationship. In these circumstances, supervision may be a valuable tool in implementing a gradual step-up plan for parenting time.

6. In cases involving older children who are able to articulate their views and preferences, their expressed wish for supervision of parenting time should weigh very heavily in support of such relief.

7. Supervision of parenting time is often appropriate as a time-limited measure rather than a long-term solution. It represents a significant intrusion upon the parent-child relationship, and therefore its continued imposition must be justified.

8. However, supervision may be appropriate on an indefinite basis where the evidence suggests that the reasons for the order are unlikely to be addressed in the reasonably foreseeable future.

9. Where supervised parenting time is ordered, the court should also address whether there are any steps that the party could take to potentially move towards a more natural setting for their parenting time.

10. Finally, if the court concludes that supervision of parenting time is appropriate, it should also consider whether it can be carried out by family members or friends in a normal family setting rather than by a third party professional or agency. The decision respecting the appropriate form of supervision must be based on the child’s overall best interests and not the other party’s comfort level or personal preferences.

III. ANALYSIS AND RULINGS RESPECTING THE PARENTING ISSUES

A. Overview of Conclusions

[130] The father’s parenting time with I.I.G. and M.A.G. has been quite limited since May 2019 due to the unsettled nature of his immigration status, his work commitments in Nigeria that have required him to return regularly to that country and the mother’s position that his parenting time must be supervised. As of the conclusion of the trial, his immigration status remained uncertain, and he anticipated that he would be residing primarily in Nigeria for the foreseeable future. When he is able to return to Canada, he will need to divide his time between his wife Ms. O.D.B., his son A.T.G. and his stepson A.B. in Richmond Hill on the one hand and I.I.G. and M.A.G. on the other. The division of his time will become even more challenging when the mother relocates with I.I.G. and M.A.G. to Nova Scotia in approximately six months. The father testified that once the relocation occurs, he anticipates being able to see M.A.G. and I.I.G. only two to three times a year. My conclusions respecting the parenting time arrangements that are in I.I.G.’s and M.A.G.’s best interests are framed around these challenging realities regarding the father’s situation at this time.

[131] For the reasons that I elaborate upon below, I have concluded that despite the limited time that I.I.G. and M.A.G. have had with their father over the past 4 years, they have a close and loving relationship with him and it is in their best interests that they have regular and frequent parenting time with him when he is in Canada. I find that there are no grounds for the father’s parenting time to be supervised, and that it is in the children’s best interests for it to progress to unsupervised visits immediately. The father’s parenting time should occur in Ontario until the mother and children relocate, and then in Nova Scotia after the relocation occurs. I am granting the father generous parenting time every Saturday and Sunday from 11:00 a.m. until 7:00 p.m. during periods when is in Canada for less than 8 consecutive weeks or less. If he is in Canada for 8 consecutive weeks or more, I am granting him this same parenting time until the end of the 8^th^ week, and thereafter on alternate weekends on both Saturday and Sunday from 11:00 a.m. until 7:00 p.m. I am not satisfied that it is in the children’s best interests for the father to have regular overnight parenting time at this point, but I am ordering some limited overnight visits during the children’s December school holiday, break their March Break and their school summer break after the father has had 10 regular daytime visits with the children.

[132] I have also considered it necessary to address issues relating to the children’s legal documents, the mother’s right to apply for passports, the exchange of information respecting the children including I.I.G.’s immigration status, the location and logistics of parenting exchanges, make-up parenting time if the mother cancels visits, the need for medical evidence if the mother cancels visits on the grounds of illness or injury and the presence of other family members during the father’s parenting time. I have included terms regarding these issues in my order because I have determined that these areas would otherwise become sources of significant conflict between the parties in the future.

[133] I outline below the main factual findings and considerations that have informed my decision on the outstanding parenting issues in this case.

B. Concerns Respecting Family Violence

1. The Mother’s Allegations Respecting Psychological Abuse and Anger Issues While The Parties Resided in Nigeria

[134] The mother’s request that the father’s parenting time remain supervised is based in large part on her alleged concerns regarding the father’s anger management problems and family violence by him towards her and the children. She testified that these concerns surfaced soon after the parties began to cohabit in Abuja, Nigeria in 2014. The father had a housekeeper who lived full-time at the residence, and the mother claimed that he made it clear to her that the housekeeper had “seniority” over her in the home. She described the father as being extremely controlling of her and around the routines of the home generally, setting strict limits and boundaries on what she could do and prohibiting her from playing a meaningful role in raising or guiding A.T.G. In addition, she claimed that when the parties argued, the father often screamed and sometimes punched walls and raised his hand in a threatening gesture as if he intended to hit her.

[135] The father denied ever being emotionally abusive or physically aggressive or threatening towards the mother, apart from the one incident on August 24, 2018 when he assaulted her. The FACS records that were admitted as evidence at trial indicate that he described many concerns respecting the mother’s irrational and volatile behaviour when they resided together in Nigeria. He advised FACS in a letter dated September 7, 2018 that the mother was verbally abusive towards him and the housekeeper who he employed, that she called the housekeeper names, woke her up at odd hours and repeatedly threatened to fire her, and that she wrongly accused him of having an extra-marital affair with this employee.

[136] Having considered and weighed all of the evidence, I find that the parties’ transition to married life in Nigeria was fraught with challenges due to several factors. The mother suddenly found herself in the role of a step-parent, and A.T.G. presented with difficult and aggressive behaviours. The father struggled with handing the parenting reins over to the mother in relation to A.T.G., and this was a source of frustration and disappointment for the mother. The housekeeper and the mother clearly struggled to define and navigate their respective roles under the new circumstances, and the father’s efforts to mediate their difficulties caused further stress in the parties’ marriage.

[137] I conclude that the parties both exhibited emotional volatility at times during the early years of their marriage due to these various pressures that they were experiencing. However, I find that the mother’s allegations of controlling, emotionally abusive and threatening behaviour by the father were exaggerated. In regard to the mother’s credibility respecting the dynamics of the parties’ relationship in the early years, I note that there were problems and inconsistencies within her own examination in chief at trial, and between that evidence and the information that she provided to others in the past. For instance, at trial, she claimed that she had no concerns about the father prior to their marriage, whereas she claimed in the context of her application for refugee status in Canada on humanitarian and compassionate grounds that there had been signs of violence on his part even before their marriage. In addition, her evidence at trial about the father’s alleged threats of physical abuse while they resided in Nigeria was inconsistent with the information contained in the FACS records. According to those documents, the mother stressed to FACS workers that domestic violence was a major issue in Nigerian society generally, but that the father had been very vocal in his opposition to violence against women when they lived in Nigeria and had not been abusive towards her. Furthermore, when her own counsel asked her in examination in chief to elaborate on the father’s alleged controlling conduct while the parties lived in Nigeria, she simply described the father setting routines and rules in the home, and not permitting her to send the housekeeper to do errands for her. However, she acknowledged that she was not working at the time and that she was perfectly capable of doing her own errands. As another example, she stated that the father was controlling about making plans around Christmas, that he insisted that they visit A.T.G.’s grandparents, and that she had no choice but to simply “follow his lead” around holiday planning issues. However, in the same discussion, she talked about going to visit her side of the family during the holiday season as well.

2. The Parties’ Mutual Concerns Respecting Verbal and Psychological Abuse from 2016 to 2018

[138] The parties both testified about the stresses that they experienced during their first two years in Canada from 2016 to 2018, and they each made allegations of verbally and psychologically abusive behaviour by the other. The mother testified that she began working at the telecommunications job in Welland very soon after arriving in Canada so that she could support the family while the father pursued his Master’s degree, and that the parties fought regularly about finances, child care responsibilities and whether the father should be taking on part-time work to assist with the bills. She described the father as being emotionally and verbally volatile during these arguments.

[139] The father had similar complaints about the mother’s conduct during this time period. He stressed that the decision to relocate to Canada was precipitated by the mother’s wishes, and that he pursued his studies in Canada to support her long-term objectives. However, his leave from his employment was without pay and he did not obtain any sources of financial support to engage in his studies. He acknowledged that this created significant financial stress, and he testified that the mother was not open and honest with him about her earnings and the Canada Child Benefits that she was receiving. According to the father, the conflict between the parties intensified in 2018 because the mother wanted them to sponsor her mother and two half brothers to come to Canada after her stepfather died in 2018, but he refused because they did not have the financial resources required to do so. He testified that the mother would become heightened and verbally abusive towards him during their arguments, calling him various derogatory names and accusing him of being irresponsible and demented. He recalled having reached out to their pastor at one point during this period due to his concerns about the significant changes in the mother’s behaviour and attitude towards him.

[140] I find that the parties continued to experience significant challenges during their first two years in Canada due to the transition to a new country, the father’s demanding course of study, the mother’s new responsibilities as the primary source of financial support, their struggles in managing finances, the mother’s pregnancy with M.A.G. and the usual stress associated with raising three young children. There were many disputes between them, and I find that they both became emotionally dysregulated and inappropriate with each other at times during those arguments. The evidence leads me to conclude that they were equally responsible for the conflict in their relationship and the children’s exposure to that conflict from 2016 to 2018. I do not accept the mother’s characterization of the father as being the only abusive party during this period of time, or the more abusive one.

3. The Mother’s Allegation of Sexual Abuse by the Father Towards I.I.G.

[141] As I have already briefly discussed, the mother became concerned during the spring of 2018 that I.I.G. was being sexually abused. She testified that she became worried about possible sexual abuse because I.I.G. had developed a rash in her vaginal area and had begun touching that area regularly. In addition, she stated that I.I.G. had begun to complain about discomfort during urination in the mornings. She initially thought that I.I.G. may have been exposed to sexual content in video games that A.T.G. was playing at the time, and therefore she removed those games from A.T.G. However, she testified that approximately one month later, she walked into the washroom while the father was helping I.I.G. with her bath and observed I.I.G. sitting naked on the father’s lap with her legs spread open and the father spreading diaper cream in her vaginal area. She testified that she also noticed that the father would often put I.I.G. on his stomach while lying on the bed, bounce her and then move her towards the lower part of his body, and that this behaviour amplified her concerns that he was sexually abusing her. She became convinced as of August 2018 that the father had engaged in inappropriate sexual activity with I.I.G., and she maintained this concern right up until the time of trial.

[142] The father adamantly denies having ever engaged in any sexually inappropriate activity with I.I.G. He testified that he had concerns starting in the spring of 2018 that I.I.G. may be suffering from a yeast or urinary tract infection, because she was being potty trained but she required a diaper at night and the mother was using the same diaper for up to 14 consecutive nights. He recalls that I.I.G. had issues with rashes in her vaginal area during this time period. He claimed that the mother’s goal at that time was to separate from him and pursue permanent resident status for herself and the children on her own, and that she conjured up the sexual abuse allegations against him to support those objectives. He also noted that the mother had been sexually abused herself as a child, and that this history may have triggered her concerns about I.I.G. He described the challenges that the mother’s concerns created for the family, as she would not allow him to bathe I.I.G. or attend to her other personal care needs, and he began to feel on edge when he had any type of physical interactions with I.I.G. and M.A.G.

[143] The evidence does not support a finding that I.I.G. was ever sexually abused by A.T.G., the father or any other person. I have already noted that Dr. Colorado did not find any evidence of sexual abuse based on his physical examination of I.I.G. on August 1, 2018 and the results of the urine culture and vaginal swab that he collected on that date. Dr. Colorado concluded that I.I.G. was likely scratching herself in the vaginal area due to the growth of pubic hair in the area. Detective Constable Mitchell and FACS worker Ms. Michelle Menhennet carried out a full investigation of the mother’s concerns about sexual abuse in August 2018, which included a forensic interview of I.I.G. The child did not make any disclosures of sexual abuse. The mother acknowledged during the investigation that there was no clear evidence to suggest that I.I.G. had been sexually assaulted, but she stated that she nonetheless wanted her concerns to be documented. Later on, she admitted to Society worker Ms. Manju John during a home visit on January 31, 2019 that she had over-reacted in making allegations of sexual abuse against the father, because she had been sexually abused by an uncle for 3 years as a child and that trauma made her overly anxious about her own daughters being sexually molested. FACS did not verify the mother’s concerns respecting sexual assault of I.I.G. and the police did not lay any criminal charges in relation to the mother’s allegations. The FACS records indicate that part of the agency’s Plan of Care respecting the family as of October 2018 was to ensure that the mother received counselling and education around typical behaviours in children of I.I.G.’s and M.A.G.’s ages, including the differences between normal exploratory sexual behaviour in children as opposed to inappropriate sexualized conduct. In addition, as I will discuss later in these Reasons in addressing the parties’ historical parenting roles, the FACS records indicate that by late October 2018, the mother wanted the father to care for the children on his own during evenings and overnight when she secured employment that required her to work the night shift.

[144] As part of the sexual abuse investigation, FACS and the police reviewed the recordings that the mother had surreptitiously made of the father while he was in the bedroom that I.I.G. and M.A.G. shared. The recordings were taken on two separate days in July 2018. The mother relied heavily on these recordings to support her concerns that the father had sexually abused I.I.G. Ms. Michelle Menhennet, her Supervisor Ms. Julie Bishop and Detective Constable Mitchell concluded after reviewing the recordings that there was no substantive evidence in the videos of any misconduct occurring. These recordings were admitted as evidence at trial, after a long and complex voir dire. It is important to consider the mother’s descriptions of these recordings to FACS, the police, in her court documents and at trial, as there are significant discrepancies between those descriptions and what actually transpired in the recordings. These discrepancies raise serious concerns regarding the mother’s credibility and/or her ability to properly process and perceive events involving the children and the father. Her descriptions were as follows:

1. In her Form 35.1 Affidavit, she claimed that in one of the recordings, the father entered into the children’s bedroom, stood over I.I.G. and clearly became sexually aroused while he was watching her in bed.

2. She further claimed that in one of the recordings, the father climbed into the girls’ bed and deliberately covered him and I.I.G. with a blanket, suggesting that he interfered with her sexually under the covers.

3. At trial, she testified that in the recording where the father allegedly became sexually aroused while watching I.I.G. on the bed, I.I.G.’s bare buttocks were exposed because she was not wearing a diaper or pullup.

4. She testified at trial that I.I.G. made “uncomfortable noises” when she was under the blanket with her father, again suggesting that she was being sexually molested. During the joint child protection/police investigation, she described these noises as “groaning’ sounds.

[145] Having carefully reviewed the 3 recordings in question several times, I concur with the conclusion of FACS that they do not raise any concerns whatsoever about possible sexual abuse or any other misconduct by the father towards either I.I.G. or M.A.G. With respect to the first recording, the father testified that he was sleeping on a pullout couch during that period, and that the mother slept in the bedroom with the girls. He noted that the mother had left the apartment to take A.T.G. to daycare, and that he entered the girls’ bedroom because he heard the children making noises and he wanted to check on them. He denied having an erection at any point and stated that he was simply attending to his daughters, checking his phone while he watched over them, and regulating the temperature in the bedroom with a remote control. I conclude based on my several reviews of the recording that the father’s description was accurate and that he was simply caring for his children. I did not observe the father becoming sexually aroused, and I.I.G.’s buttocks were not exposed at any point during the recording.

[146] With respect to the second and third recordings, which occurred on the same day, the father testified that they simply showed him entering the girls’ bedroom and lying in the bed with the children because I.I.G. was making noises and could not sleep. He explained that he lay with them to comfort I.I.G. and help her to sleep. He stated that he remained on M.A.G.’s side of the bed during this recording, and that the mother in fact walked through the bedroom right past the bed during the recording. Again, I find based on my several reviews of these recordings that the father’s description was accurate. The father was on the opposite side of the bed to I.I.G., and I did not observe any inappropriate interactions between him and either of the children. I.I.G. jumped out of the bed a couple of times and then returned, and she wore a diaper and top throughout the recording. Although she whimpered slightly at one point, she did not make any sounds that would raise alarm for possible sexual abuse.

[147] I note that the mother also testified at trial that she showed these recordings to the family’s pastor, Mr. B.S., that B.S. watched them, and that he told her that they were “terrifying” and she should go to the police. However, Mr. B.S. testified at trial and he denied having made these comments to the mother. On the contrary, he stated that after reviewing the recordings, he clearly told the mother that they did not in his opinion raise any concerns about possible sexual abuse. I found him to be a credible and reliable witness.

4. The Father’s Physical Assault of the Mother on August 24, 2018 and the Father’s Allegations in August 2018 of Abuse by the Mother Towards the Children

[148] As I have discussed earlier in these Reasons, the father admits that he struck the mother on the face at the