ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ADAM JORDAN HILL
Applicant
– and –
LISA MARIE HILL
Respondent
Drew Boyer, Counsel for the Applicant
Scott DeGroot, Counsel for the Respondent
HEARD: March 6, 7, 8, 9, 10, 13, 14 and April 27, 2023
the honourable justice smith
REASONS FOR JUDGMENT
1. Introduction
1The applicant father and the respondent mother were married in May 2016, are now separated, and have three daughters (collectively, the “children”, or the “girls”), aged 6, 5 and 2 at the time of trial. The parties entered into a separation agreement on June 8, 2021. Both now seek to vary that agreement. They are divided on how parenting time should be apportioned and on decision-making for the girls. There are other issues which I am required to decide, including issues relating to child support, although most of those issues will turn mostly on how decision-making is assigned and parenting time is apportioned.
2For the reasons which follow, I have concluded that the parties will share parenting time equally, on a 2-2-3 schedule, and that the respondent mother will have decision-making responsibility for the girls.
2. Background
3The parties have each made serious allegations against the other, and they have had a high-conflict relationship both before and since their separation on January 5, 2021. It is important, though, to start with the positive. By all accounts, the girls are healthy, happy, and bright. The older girls are doing well in school. The toddler is well cared for by both parents. CAS workers have reported that the children have two safe, clean and orderly homes where all their needs are met. On both sides they have extended family and/or friends and neighbours who love them dearly.
4The applicant testified that even though he believes he should have the greater share of parenting time with the girls, he does not intend to cut the respondent out of their lives. He knows that the respondent loves the girls and that the girls love her. He says that the respondent has strengths of personality which he hopes the girls will inherit. She is a good mother who does a good job with the girls, and they enjoy the time they spend with their mother.
5The respondent said that she wanted to split parenting time equally with the applicant. She testified that she believed that the applicant had previously had issues with depression but that the causes of that condition were completely understandable, and not the fault of the respondent. She testified that the applicant would give the world for the girls and that he loves them very much. In turn, she knows that the girls love their father. Although the respondent disagrees with some of the decisions the applicant has made for the girls, and especially the way he has made them, she said that none of those decisions had caused harm to the girls and agreed that, in the end, some of them had been good decisions.
3. The evidence
6However, as I have said, the parties are sharply divided on many issues, including on many factual issues. Accordingly, I begin with a discussion of the evidence.
3.1 The parties’ marriage
3.1.1 Care-giving roles
7The parties were married in 2016 and separated in January of 2021. Their three daughters were all born before separation.
8The applicant was a police officer but, after having been involved in two shooting incidents, he began to suffer the effects of post-traumatic stress disorder. He was on medical leave from 2011 and is now “medically retired.” He has not had any gainful employment since then and has, therefore, been a stay-at-home father since the eldest of the parties’ children was born in 2016.
9For most of the relevant period, the respondent has worked as a teacher but, before the parties separated, she was for a majority of the time at home with the children on maternity and medical leaves. When the respondent was working during this time, the two older girls were, for the most part, enrolled in day care for between two and five days per week.
10The parties each testified as to their roles during the marriage, each asserting that they were the primary caregiver to the children and that the other was less involved. I am satisfied that I need not resolve this dispute on the evidence as it is evident that both were involved parents, both love and care for their children, both are fit parents, and, since separation, they have each been the primary caregiver to the children when exercising their own share of parenting time. The roles the parents played during the marriage is of limited significance now.
3.1.2 Family violence, alcohol use and mental health
11Both parties criticize the behaviour of the other during the marriage. The applicant led evidence through his father that the respondent was unreasonable, had a caustic effect on their family life, was incautious respecting COVID-19, and that she took in too many cats. The respondent testified that the applicant’s father was a disruptive force in her life and that he was constantly denigrating her family.
12There was also evidence led that the applicant abused alcohol during the marriage, and that he had mental health issues relating to his PTSD and following the death of his sister. The respondent said that, in the period leading up to their separation, the applicant would drink routinely, starting early in the day and lasting throughout the day. The applicant denied any problem with alcohol.
13The respondent did acknowledge that before the marriage and before the parties had children, he may have used alcohol and marijuana instead of complying with his regimen of prescribed medication. He also acknowledged one incident in the fall of 2020 where he became intoxicated at the home of a neighbour, Tim Louch. The applicant said that he had been doing yard work that day, which had been hot. He was exhausted and had a little more to drink than he usually would, had a small amount of marijuana, and was not feeling well. It was nothing more than that, although he did acknowledge that he may have been prescribed anti-psychotic medication shortly after this incident. Mr. Louch was a witness in these proceedings and testified that the applicant had a couple of “hard” drinks that day and some marijuana. He became intoxicated, was rolling around on the floor of Mr. Louch’s garage, and vomited. According to Mr. Louch, other than this incident, he has never seen the applicant abuse alcohol. Indeed, he testified that the applicant is very cautious about his use of alcohol, a point the applicant emphasized in his evidence.
14Both parties accuse the other of engaging in violence during the marriage. The applicant said that the respondent often became aggressive with him and that he worried, after the birth of the eldest child, that she was suffering from postpartum depression. He said that she consulted their family doctor and that she was prescribed medication, which she refused to take. He testified that early in the life of their marriage, she once pushed him into a steel door. On another occasion she started punching him in the chest. These assaults occurred after petty disagreements about parenting or about the applicant’s concern for the respondent. The applicant testified that the respondent frequently yelled at the children and would drag them by the arms. The applicant’s father said that the respondent disciplined one of the girls at a birthday party, pulling her off a couch and down to the floor before pulling her off to a bedroom. Mr. Louch testified that he often heard the respondent’s yelling coming from the parties’ home. He described one incident when the respondent lost her temper with the girls when the family was hanging outdoor Christmas lights. He said her manner was “almost inappropriate.”
15The applicant testified that the respondent’s aggressiveness, both towards him and the children, worsened during the pandemic. They were arguing frequently, sometimes in the presence of the children. He worried that the respondent was physically disciplining the children when he was absent. One day he came home and saw that one of the girls had welts and “handprints” on her back. When asked for an explanation the respondent said that she just went “too far” and did not want to discuss the matter further. On another occasion, in a moment of frustration, the respondent said of the girls, “I could just kill them.”
16The respondent denied having a short temper and denied mistreating the girls during the marriage but did acknowledge that on one occasion when one of the children had bitten her on the arm, she had slapped the child so that the child would release her bite. She also acknowledged that she once pushed the applicant up against a door during an argument that the parties were having about the applicant attending strip clubs. She denied ever punching him in the chest. She said she recalled no incident at a birthday party like the one described by the applicant’s father.
17The respondent testified that once in the winter of 2017, during an argument, the applicant grabbed her by the neck and shoulder, pushed her though a doorway and threw her onto a bed. The applicant denied being abusive of the respondent during the marriage.
18With respect to this body of evidence, I am satisfied that most of it is of little value to me. While it may be that the applicant at one point was drinking too much, the parties agreed that he does not now have any issue with alcohol. Moreover, while the applicant has had issues with his mental health, for reasons which the respondent accepts as completely legitimate, there is no evidence now that the applicant has any issue that is not being appropriately managed by the treatment and medication he continues to receive.
19As for the allegations of family violence, I will return to this issue below, but note now that these more historical allegations, for the most part, suffer from some vagueness and lack of detail. Insofar as the parties accuse each other of assault, I note that it is not clear to me that any of these alleged assaults is said to have occurred in the presence of the children. I also note that there have been no allegations of assault between the parties since they separated. With respect to the allegations that the respondent was short with the girls and yelled at them, I do not find this evidence especially concerning.
20The one allegation made which is not vague, and which is accompanied by some detail, is the allegation made by the applicant’s father about the respondent’s treatment of one of the girls at a birthday party. As I have said, the respondent denied this allegation. I give little weight to the evidence of the applicant’s father on this point for two related reasons. First, I observe that the applicant testified at length at trial. He did not mention this incident at which he was said to have been present. It would have been a straightforward matter for the applicant to confirm this evidence if it were true, but he did not. Second, I have concerns about the evidence of the applicant’s father. His dislike of the respondent was palpable during his testimony, much of which, as the respondent argues, was irrelevant even if it were true, and painted the respondent in a very unflattering light. In the absence of confirmation from a source from which it would be expected, the applicant, I decline to rely on this evidence.
21I am confident that each party has sought to highlight the weakest moments of the other party during the marriage, and that both parties did have weak moments. For the most part, however, as I have explained, this evidence was of little value to me.
3.1.3 Decision-making during the marriage
22In late 2018 or in 2019 the family moved to a house in Port Dover. The respondent was then working at a public school in Simcoe.
23Before their separation, the parties attended Pentecostal churches. The day care to which the children were sent in Simcoe, Calvary Day Care, was at the Pentecostal church. The family attended church on Sunday, and the couple played baseball on the Church team. Their social circle included friends from the church. The applicant agreed in cross-examination that at one point the parties had agreed that the children would be raised in the Pentecostal church.
24The respondent testified that before they separated, the parties had few disagreements respecting the girls’ education, religious upbringing, medical care, or extra-curricular activities. As will be seen below, however, there have been sharp disagreements between the parties about each of these topics after their separation.
3.2 The parties’ separation
25The parties separated on January 5, 2021. A week or so before that the parties had an argument during which, according to the applicant, he told the respondent that they had to find a way to save their marriage, in response to which the respondent said, “I have to find a way to kill you” and that she was going to do her best to make everyone think that the applicant was “nuts” so that he would “never see the kids again.” The respondent testified that this conversation happened much differently. She testified that the respondent said to her that “I bet you want to kill me” to which she respondent responded “ya, I guess so.” It was nothing serious, just banter, and the applicant did not react.
26The applicant testified that January 5 was a bizarre day that started out normally with a trip to the dentist, pizza for dinner and, after dinner, the children dancing and coloring. He testified that the respondent was quiet and pacing in the background, then she instigated an argument. Eventually, the respondent went to the bedroom and got the two older children dressed and pulled them out onto the front lawn where she was yelling that she did not feel safe in the house. The applicant testified that he was in shock, especially because the respondent’s behaviour “did not match the circumstances.” He said that he asked the respondent to bring the children back into the house and she responded that he should leave. Eventually he said that he would leave so that she would bring the children inside and to defuse the situation. He packed up some things and left for his parents’ home.
27The respondent gives a different version of this day. She said that she and the applicant had had an argument the day before because he was questioning her about the names of men that appeared on her facebook page. The argument escalated and the applicant said that they were likely to separate. The respondent says that she responded “all right,” after which the applicant left the house to buy alcohol, returning with a bottle of rye whiskey. The following day, the applicant went to the dentist and, when he returned, the respondent took the children for a walk with a neighbour.
28According to the respondent, the applicant started drinking the rye while she was on the walk. The applicant was agitated when she returned. She was sitting on the couch breastfeeding the baby and the applicant started to video-record her on his cell phone, trying to get her to admit that she had abused the children. After that the family had dinner together, but the atmosphere was tense. After dinner the applicant was playing with the children and was taunting her, saying that he was going to have the children more than 50% of the time after they separated. She said that she was feeling unsafe, so she prepared to leave with the baby, but the two older girls saw her leaving and wanted to go with her. The respondent took all three girls outside. The applicant asked where she was going, and she explained that she did not feel safe so she was going to go to a neighbour’s house. The applicant asked her not to do that and said that he would leave instead. It took 15 or 20 minutes, but eventually the applicant left.
29The applicant denied that he had been drinking excessively on this occasion, saying on cross-examination that he had consumed two alcoholic beverages that evening. He denied threatening to take the girls away from the respondent. He denied that he was abusive of the respondent on this (or on any other) occasion. He admitted that he recorded the respondent, but said that he did so because she had a history of recording him and because he feared some kind of false allegation from the respondent.
30A few days later, the applicant was contacted by the CAS to discuss a safety plan with him. He said that the CAS told him of allegations that had been made against him – that he was a binge drinker, that he had PTSD, and that he had engaged in a verbal argument with the respondent. The safety plan which was imposed prevented the applicant from seeing the children and from returning home. As a result, the applicant stayed with his parents one or two weeks and had no contact with the children. He says that he did not see them in person for almost a month. The CAS requested a letter from the respondent’s physician respecting his PTSD, which he supplied immediately.
31After the safety plan lapsed, the applicant started to have video calls with girls. He was free to return to the matrimonial home, which he did, but the respondent had left with the children, and he did not know where they had gone. The applicant called the CAS and arranged to meet with them the next day. For some reason, that meeting did not take place and, in frustration, the applicant called the Ontario Provincial Police. The OPP officer to whom he spoke told the applicant that they could not tell him where the children were and recommended that he retain a lawyer.
32The applicant testified that he told the police about the argument during which the respondent had threatened to kill him, in response to which the OPP officer said they could have her arrested. At this point, the applicant testified, he was becoming worried that the respondent’s threats were genuine, since it was clear that she did not want him to be a part of the children’s lives, but he declined to ask the officer to pursue charges against the respondent.
33However, it does appear that the applicant advised the CAS at some point in January of 2021, that the respondent had engaged in the physical abuse of the children. The CAS investigated this and other claims, finding (in a reporting letter dated February 5, 2021), that the allegation of physical abuse was “not confirmed.” The CAS did report that it was concerned that the children were being exposed to adult conflict.
34By the time he received the February 5 CAS letter, the applicant had retained a lawyer and had started to have parenting time with the children. On one occasion during that time, he says that he saw a mark on one of the girls, which he reported to the CAS. The February 5 letter was received by the applicant on February 23, 2021. The applicant agreed in cross-examination that he was “astonished” by the CAS letter, which he regarded as having failed to take his concerns seriously, and as having treated him unfairly, and that he told the CAS as much by text that same day.
35Later, on February 23, the applicant contacted the CAS again and reported that he was concerned that the respondent was continuing to abuse the children given that he had found red marks on the back of one of the girls. The applicant said that the fact this report was made the same day that he received the February 5 CAS letter was just “a coincidence.”
36The respondent testified that on January 6, 2021, she contacted a women’s shelter in Brantford to ask for advice. After telling the shelter worker what had happened, the worker said that they were required to report the matter to the CAS. Later that day, the CAS contacted the respondent, and she told them that she was concerned about the applicant’s drinking and his mental health, that she did not feel safe around him and that she thought the “dynamic” was not good for the children.
37The CAS worker told the respondent that they would be putting a safety plan in place, which meant that the applicant could not come to the house until her concerns were investigated. According to the respondent, the safety plan was in place from January 6 until January 11, 2021. She said that she was shocked that the CAS was lifting the protections which had been put in place because she did not feel safe in the house. So, she packed up the girls, the cat, the dog and a few things and left for her mother’s house in Brantford, where she stayed for about four months.
38Contact between the applicant and the children, which was arranged through counsel, started with facetime calls and he was having in-person parenting time with them by about the third week of January. The amount of time the applicant had with the girls started with short visits but gradually increased to the point where time with the older girls was shared equally but not for the baby, who was still being breast fed.
39In cross-examination, the respondent conceded that the CAS had not confirmed her concerns about the applicant’s drinking or mental health issues, but denied concocting those claims to prevent the applicant from having time with the children.
40I accept the respondent’s evidence respecting the manner in which the safety plan came about. In other words, it was imposed by the CAS, not by the respondent, who did not initiate contact with the CAS herself. After the safety plan lapsed, the applicant’s parenting time was restored as described above. As will be seen, these events stand in contrast to the applicant’s later decisions to withhold the children from the respondent.
41On March 22, 2021, the applicant wrote to the respondent by email. He accused her of all manner of shortcomings in a communication which is properly described as inappropriate and aggressive. Among other things, the email advised the respondent that the applicant had “called your superintendent to see what options there are for assistance for you. The OCT [Ontario College of Teachers] directed me to him after reviewing my initial complaint.” In cross-examination the applicant said that nothing came of his complaint to the College or of his call to the respondent’s superintendent. In cross-examination the applicant conceded that, with the benefit of hindsight, the email was “inappropriate” but when asked if his complaint to the College was appropriate, he said that he felt he had a duty to make a report given that he was concerned about her texting a teenage boy, something he had discovered during their marriage. He conceded that he waited until they were in the throes of separation to make this report.
3.3 The separation agreement
42With the assistance of lawyers, the parties reached a settlement agreement, which they executed on June 8, 2021.
43For present purposes, the key provisions of that agreement are set out or summarized below. With respect to decision-making, the agreement reads as follows:
[The parties] shall share joint decision-making responsibility of the children …, with [the applicant] having final decision-making authority. The children will have share residence between [the respondent] and [the applicant]’s homes.
[The parties] shall consult with one another on all major decision to be made for the children, including decision pertaining to their religious upbringing, education, non-emergency medical care and extra-curricular activities and shall take one another’s opinions into consideration in arriving at any major decisions.
[The parties] shall each be entitled to speak directly with and obtain information directly from all service providers involved with the children … without the need for further consent from the other. This shall include but not be limited to all teachers, day care providers, coaches, doctors, counsellors and other medical professionals. Where an individual service provider requires the consent of either parent to speak with the other parent, the necessary documents shall be executed as soon as practicable to give that consent.
[The parties] acknowledge and agree that if a situation arises that requires an immediate or urgent decision for the child(ren) and [the parties] are unable to agree, then [the applicant] will have final decision-making responsibility.
[The parties] agree to the children attending either Elgin Avenue Public School or Saint Joseph’s School in Simcoe, Ontario, which will be determined at a later date.
44With respect to parenting time, for the two older girls, the separation agreement specifies that the parenting-time will be divided equally on a 2-2-3 schedule but sets out a temporary schedule for the youngest child whereby the applicant would have parenting time with her for three hours each day until October 2021. At that point, the youngest would then have three days each week with the applicant and two days in day care at the Pentecostal church. The agreement then provides that as soon as the youngest child was no longer breast feeding, she would have overnight stays with the applicant once a week but increasing after periods of three months to two nights and then three nights per week. The agreement provided that when the youngest child turned two, she would be on the same schedule as the two older girls. The agreement provides that the parties “shall endeavour to share holiday times with the children as equally as possible.”
45The applicant testified that the parties knew that they would have disagreements about decisions so they agreed that, in order to avoid the cost of mediation or litigation, that one of them should be assigned final decision-making authority. Although the respondent had said originally that she wanted to have final decision-making responsibility, after discussion, the parties agreed that the applicant had always made the final decisions during their marriage and that the respondent acknowledged having made mistakes with respect to the children since the separation. Therefore, they agreed that it would be best if the applicant had the final say “based on my history of having made good decisions.”
46The respondent testified that in the early discussions of the separation agreement she was to be assigned final decision-making authority, but that the applicant’s position slowly evolved until he was insisting on having final decision-making authority. The respondent was surprised by the change in position, but agreed to it when the applicant made it clear that he was prepared to litigate the question. She wanted the matter resolved. She testified that at that point she had no reason to believe that there would be much disagreement.
47As will be seen, the applicant’s use of this authority has been a source of significant tension between the parties. In cross-examination, he denied ever misusing his final decision-making authority or ever making a major decision for the girls without consulting the respondent.
3.4 Post-separation issues
48The separation agreement did not have its desired effect. Conflict between the parties has continued and, again, serious allegations have been made by both sides. I provide here, in roughly chronological order, a non-exhaustive history of that conflict.
3.4.1 July 2021 – Text message from the applicant
49One of the recurring complaints of the respondent is that the applicant has been on a campaign to paint her as mentally unstable. In cross-examination the applicant denied that he had mounted such a campaign to show that the respondent suffers from mental health issues, although he conceded that he has concern for her in that regard.
50In July of 2021, the applicant sent the respondent a text message in which he suggested that she was using the CAS as “your own personal counsellor” and that the CAS was concerned that the respondent was “struggling.” He therefore had no choice but to report the respondent, a teacher, to the school trustees. In cross-examination, the applicant said that this text was a mistake on his part for which he has previously apologized to both the respondent and the CAS. He said that the text was sent in frustration.
3.4.2 August 17, 2021 – Text message from the applicant
51In this matter, each party accuses the other of communicating in an inappropriate manner. The applicant says that the respondent loses her temper when she communicates in person or on the telephone. The respondent says that the applicant’s written communications are aggressive and manipulative.
52On August 17, 2021, the respondent sent the applicant a simple text proposing a drop off time for the youngest child. The applicant replied aggressively and, in a text that is best described as childish itself, he accused the respondent of acting childishly and contrary to the best interests of the children. He threatened that he would “bring you before a judge. I can promise you that.” In cross-examination the applicant said that the text was sent in a larger context of the respondent trying to manipulate the parenting time schedule. When it was suggested that the applicant could have responded to the respondent’s drop off proposal with a simple “sounds good,” the applicant responded that he was not perfect and acknowledged that he had made mistakes in his communications with the respondent. He said that he was getting better at communicating more appropriately.
3.4.3 Fall of 2021 – Day care and church
53The separation agreement provided for the youngest child to go to daycare on Tuesdays and Thursdays at Calvary Day Care. However, the parties did not follow this schedule in 2021 because the day care did not have a spot available on Tuesdays and Thursdays at that time. Although there was a discussion of other options, the respondent chose to have the child stay with the applicant on the days when it had been intended that she go to day care. However, she continued to want the child to attend Calvary Day Care when a spot became available. The applicant objected. Eventually, the respondent started paying for a spot at Calvary even though the child was not attending. She wanted to keep that option open in the event that circumstances with the applicant changed.
54The respondent testified that the youngest should attend Calvary Day Care, in part because it will provide the child with socialization without a parent present, an aspect of her development which the respondent regards as important. But the applicant testified that he was opposed to day care and that the youngest was better off being cared for by him during the day. He said that he ensured that she got socialization time with other children by taking her to the Early on Centre in Simcoe, and to swimming at the Norfolk Fitness Centre.
55Further, the applicant said that he had concerns respecting Calvary Day Care given things one of the girls had told him about the pastor at the Pentecostal church where the day care is operated. He would therefore not consent to her being sent there. The applicant testified that if the youngest must go to day care, it should be at Holy Trinity which is the feeder day care for St. Joseph’s Catholic School which she will eventually be attending with her older sisters. The applicant said that the child is on the waiting list for an opening at Holy Trinity.
56In cross-examination, the applicant testified that he was not refusing to allow the youngest to be sent to day care, just that he objects to her being sent to day care full time, which would limit his parenting time. The applicant agreed that the respondent was proposing that the child go to day care only on her parenting days (which would mean 2 days and 3 days in day care on alternating weeks) but said that this proposal was inconsistent with the separation agreement and was really a “manipulation tool” for the respondent to get her way. He conceded, however, that the respondent had not actually ever sent the child to day care following the separation agreement. The applicant secured a spot for the child, sought the applicant’s consent to send her, and when that was not forthcoming, she simply continued to allow the applicant to care for her during the day. She kept the day care option open in the event that the applicant finally agreed to allow it.
57The day care issues which divide the parties are related to differences they have about the religious upbringing of the children. As noted above, during their marriage, the parties both attended Pentecostal churches. The applicant testified that their attendance waned during the pandemic, and they started to discuss leaving the Pentecostal church and investigating the Catholic church. Although the respondent did not want to switch, the applicant said that he started to attend a Catholic church. He said that the girls now attend the Catholic church with him and the Pentecostal church with the respondent. He said that he saw no problem with this, since both churches are denominations of Christianity, although he testified that he wanted the girls to be baptized in the Catholic church so that they could participate in the sacraments at school with their friends.
58The respondent testified that in the fall of 2021 the applicant became adamant that she not take the girls to Calvary church. In cross-examination, the applicant agreed that he purported to invoke his final decision-making authority to prevent the respondent from attending the Pentecostal church with the children. He said that he had concerns about the particular church the respondent was attending (not the Pentecostal church generally), even though the parties had attended that church during their marriage and had discussed raising the girls in that church. The older girls were dedicated1 in the Pentecostal church before the parties separated, and the youngest was dedicated after separation. The applicant relented on the issue of allowing the respondent to take the girls to the Pentecostal church after receiving a letter from the respondent’s counsel about the issue.
59The respondent testified that she does not agree that the girls should receive the Catholic sacraments at school, since the plan was always that the girls would be raised in the Pentecostal church.
60The applicant predicted conflict with the respondent in the future about whether the girls should be baptized.
3.4.4 October 2021 – Birthday party and Hallowe’en
61The applicant testified that the arrangement made for parenting time with the youngest child was challenging at times. He said that he looked forward to the day when she was no longer breastfeeding so that he could have more time with her. In the meantime, the schedule set for her was not always followed. The applicant testified that sometimes when it was convenient for the respondent (for example, when she was having her hair done) she would leave the youngest with him on her time. However, when he hoped for extra time with the youngest, she would insist on strict compliance with the schedule.
62This became a serious point of contention in October 2021, when the applicant planned to host a birthday party for the youngest daughter on one of the respondent’s weekends with the girls. The applicant testified that he was concerned at that time that the parties’ ability to communicate was breaking down. He said that he thought the respondent was not following the separation agreement as it was written.
63The applicant wanted the party at his house on the weekend near to the child’s actual birthdate. Since the girls were to be with the respondent on the weekend in question, he asked the respondent to allow all the girls to attend during her parenting time. In his view, her offer of only three hours was insufficient and unfair. He denied that he planned the party purposely to conflict with the respondent’s parenting time, noting that the previous weekend was Thanksgiving and that the following weekend was too remote from the child’s actual birthdate.
64The respondent testified that she simply told the applicant to have the birthday party on one of his weekends. She also offered him extra time on the Friday evening to accommodate a party.
65In the course of the parties’ dispute about the party, the applicant sent an email (dated October 2, 2021) to the respondent about it. That email begins as follows: “I am very concerned about your behaviour and mental state” and pursues that theme for several paragraphs. In cross-examination, the respondent defended this email saying that he was concerned about the applicant even though, as he conceded, she has not to his knowledge ever been diagnosed with any mental illness. When asked if the email was an appropriate communication, the applicant responded that the email was the truth.
66On October 15, 2021, the parties had an email exchange about plans for the children on Hallowe’en. There was a difference of opinion about how long the girls should be out trick or treating, the respondent advocating for a shorter time, the applicant for longer. The applicant responded to the respondent’s proposal by email, saying at the email’s opening that they could go to court and threatening to call the respondent’s then lawyer as a witness. The balance of the email is aggressive and makes various accusations against the respondent. When asked if this communication was appropriate, the applicant said that, in hindsight, he could have presented his ideas better and agreed that this was not an appropriate communication.
3.4.5 October 2021 – Complaint to the CAS
67The CAS reported in September of 2021 that it had closed its file respecting the parties’ family. The applicant testified that he was concerned that CAS had not taken his concerns respecting the respondent seriously and was concerned that the CAS had not made a finding that the children had been abused.
68In October 2021, the applicant made a fresh complaint against the respondent to the CAS. He said in cross-examination that he had received information from one of the children that the respondent had hit her. That report, along with information the applicant had that the respondent was seeing more than one psychologist and the respondent’s erratic behaviour at exchanges of the children (a topic to which I turn next), combined to cause him to complain to the CAS. The respondent testified that the CAS told her the complaint against her raised concerns about her mental health, the physical abuse of the children, and that she was starving the youngest child. For its part, the CAS did not open a file with respect to this complaint.
3.4.6 October 2021 – Exchanges of the children
69Until February of 2023, the exchanges of the children took place, for the most part, at the applicant’s home. The respondent would drop off or pick up as she went to or came from work.
70In October 2021, the applicant sent an email to the respondent telling her that she was not welcome on his property without notice. He said that this email, sent as a trespass notice, was intended to set appropriate boundaries given that the respondent had come to his house without notice and had yelled and screamed. In cross-examination, he said there was no need for the respondent to come to his house for any reason other than to pick up or drop off the children, or to pick up or drop off an item for the children with proper written notice. He said that the trespass notice was a response to the respondent showing up at his house unannounced on the first day of school that September to walk the girls to school. He said that the respondent started yelling at the girls when she thought they were going to be late for school.
71The respondent testified that the parties had discussed in advance that they would walk the two older girls to school together on the first day of school. She walked to the applicant’s house with the youngest in her stroller. When she arrived, the applicant asked what she was doing there, and said that he would drive the older girls to school and that he would meet her there. So, the respondent walked to school with the youngest in the stroller while the applicant and the older girls drove.
72The applicant called his current neighbour, Lisa Neumann, to testify about her observations of the respondent’s attendances at the applicant’s home. She said that she saw and heard the respondent yelling and screaming at the front of the applicant’s house and that this was a regular occurrence. She testified that, by contrast, the applicant remains calm at all times. In cross-examination the witness acknowledged that she did not know what or who had caused the “commotion” and conceded a limited ability to observe.
73Mr. Louch also testified about a drop off at which the respondent got agitated and raised her voice. When the applicant asked her to stop, she did not, so the applicant called the police. The police arrived and de-escalated the situation.
74The respondent denied yelling or screaming as the applicant, Ms. Neumann and Mr. Louch alleged.
3.4.7 November 2021 – Threatened proceedings against the respondent, her mother and her lawyer
75In November 2021, the applicant threatened to apply for a restraining order against the respondent’s mother. In cross-examination the applicant said that the respondent’s mother had contacted him by phone. When asked if that warranted a threat to apply for a restraining order the applicant said that it was not a threat, he was just drawing a line, and that he was well within his rights.
76Later that same month, in response to a letter from the respondent’s counsel, the applicant wrote to counsel on November 11, 2021, and accused him and the respondent of having committed the criminal offence of conveying false information contrary to section 372 of the Criminal Code. He continued, saying that he was “not beyond filing a complaint with the Law Society of Ontario and filing a private information with regards to a criminal offence.” In cross-examination, the applicant, a former police officer, confirmed that he believed that counsel had committed a criminal offence by having given him false legal advice. He said that he thought counsel had been trying to intimidate him and, when asked if it was appropriate to have accused the respondent of a criminal offence, he said that there was nothing wrong with bringing the statute to her attention. He agreed that he was not beyond filing a private information. When asked if it was appropriate to threaten the respondent, the applicant said that it was appropriate given the false statements that had been made against him.
3.4.8 December 2021 – Flu shot for the youngest daughter
77Since their separation, the parties have differed several time respecting issues relating to the girls’ health care. Twice in December of 2021, the applicant invoked his final decision-making authority to resolve these disputes.
78The applicant claimed that the respondent was an “anti-vaxxer” (although he said she had “come around” on that issue) and that she objected to the girls getting the flu shot in two doses. Over the respondent’s objection he had the children vaccinated. In cross-examination, the applicant agreed that the respondent had simply asked for time to investigate whether the flu shot should be administered in one or two doses but said that he did not hear back from her, so he went ahead and made a final decision to have the vaccinations administered.
79This disagreement respecting the flu shot led to an incident of the applicant withholding the youngest child from the respondent on December 19 and 20, 2021. He testified in cross-examination that when he went to drop off the youngest at the respondent’s home on the evening of their disagreement about the vaccine, he asked the respondent if she would return the child to him the next day so that he could take her to receive the vaccine. When the respondent said that she would not, and that she would take the child to the appointment, the respondent left with the child and took her to his house. He said that the respondent had changed “her story” on whether the child should be vaccinated and was “playing games” around the appointment. This was at a time, according to the applicant, when the respondent had been acting erratically at exchanges of the children. He felt that the situation was out of control and that he needed to do something. He said that he thought the respondent’s offer to take the child to the appointment was a control issue rather than one related to the child’s best interests and that the respondent was trying to alienate him from the child. The respondent reported this matter to the police.
80In cross-examination, the applicant conceded that the respondent had emailed him on December 19 in the afternoon and said that she would take the child to the appointment. In his response by email later that afternoon, he said that he had made “final decision” respecting a medical matter and that he would take the child to the appointment as part of that decision.
81The next day, during the respondent’s parenting time, the applicant took the child to get vaccinated and then returned all three children to the respondent. Before going to the appointment, he called the police himself and told them he would be hanging on to the children and to tell them that the respondent should not come to his house. He said that, in the heat of that moment, he had intended to keep the children longer. However, he then sought legal advice and decided to take the children to the respondent. In cross-examination he said that he kept the youngest with him overnight that night notwithstanding that she was still being breast fed at that time. He testified that he did not believe that the child was “dependent” on breast feeding at that time, and that the respondent was abusing the breast-feeding clause of the separation agreement as an excuse to withhold the child from him. He said that it was nonsense that the respondent had called the police when all he was trying to do was ensure the best interests of the child by having her get a flu shot. He said that he was doing the best he could in difficult circumstances and that the child got the health care she required. He acknowledged that the youngest child had not before spent a night away from the respondent since the separation, and that the final decision-making authority contained in the separation agreement did not give him the authority to amend the parenting time schedule.
82The respondent testified that when she was told that the doctor was recommending that the child have two shots, she was surprised since the older girls had had one shot each. She said that she told the applicant that she wanted to look into it, in response to which he accused her of being an anti-vaxxer and said he was making a final decision. The respondent said that she was not opposed to the flu shot, she just wanted to know when the shot had changed from one to two doses. In any case, the respondent said by email that she would take the girls to the doctor but the applicant said he would do it and she could meet him there. When he arrived that evening to drop off the girls, he asked her to confirm that he was going to take the girls to the doctor the next day. The respondent said that it was her parenting time, and that she would take them. At that point the applicant turned around and took all three girls back to his house. He returned them the following day. The youngest had never before been apart from her overnight. That day the respondent received a telephone call from a police officer who told her that she was not getting the children back because it was not in their best interests. She contacted her counsel, who contacted the applicant’s counsel, and the children were then returned to her that day.
3.4.9 December 2021 – McMaster Children’s Hospital
83That same month, the youngest child became ill and exhibited a variety of symptoms, loss of weight (or lack of weight gain) among them. On December 11, the respondent had a virtual walk-in clinic session with the child, but her symptoms persisted thereafter. On December 27, the respondent was worried that the child might have an ear infection. The applicant proposed that the respondent take care of the older two girls while he took the youngest to the McMaster Children’s Hospital in Hamilton. The applicant says that the respondent became irate at this suggestion and hung up on him. That was followed by a barrage of emails objecting to taking a baby to a hospital during a pandemic.
84Over those objections, the applicant took the child to McMaster, where she was seen, given an ear wash, and referred to a pediatrician for weight management.
85The respondent testified that on December 27, 2021, she noticed that the child’s ear appeared to be troubling her, so she planned to take her to the walk-in clinic to which they had access through the girls’ family doctor in Brantford, Dr. Rajpura. She did not want the child, then 14 months old, taken to an emergency room at a hospital since it was at the height of the pandemic. Moreover, it was not an emergency. The best option was the walk-in clinic.
86In cross-examination, the respondent conceded that the girls had been taken to McMaster before, but noted that those visits had not been during a pandemic and had involved situations which the parties’ regarded as emergencies at the time.
87I note here that the parties differ about which physician should care for the girls. The applicant has taken the girls to the Willet walk-in clinic in Paris because the girls’ family doctor in Brantford (Dr. Rajpura) is too far away. The applicant testified that the respondent would not agree to change to a local doctor in Simcoe, which is his preference. The respondent said that the parties have used Dr. Rajpura for the girls since 2020 no matter where they have lived and that she hopes this continues. It will offer the girls consistency with a doctor they have known since they were born. Moreover, the respondent likes the fact that Dr. Rajpura is a woman, with whom she thinks the girls will be more comfortable as they grow older and experience more invasive procedures.
3.4.10 February 2022 – Urinary tract infections and the involvement of the CAS
88The applicant said that he had to exercise his final decision-making authority in February of 2022 when two of the girls were complaining of vaginal soreness. He said that he was out shopping with the girls when the eldest complained of pain so, after reaching out to the respondent, he stopped at a pharmacy where the pharmacist recommended taking her to the hospital to have her examined. He followed that advice, and the child was prescribed antibiotics for a urinary tract infection (“UTI”).
89When the applicant called the respondent about this issue, the respondent reported that the middle child had also complained of vaginal soreness. The parties spoke by telephone that evening and, according to the applicant, while they were discussing how to address the middle child’s issue the conversation became heated, and the respondent hung up on him. The respondent testified that she got angry because the applicant kept trying to blame the problems the girls were experiencing on the care they were receiving at her home. The applicant then sent the respondent a message saying that he would take the child to a walk-in clinic the following day. The following morning, the respondent wrote to the applicant to say that the child was not in any pain and should go to school and, if necessary, to the walk-in clinic after school. The applicant replied, saying that he would be taking the child to the clinic that day and that he had already made this decision for her.
90The applicant invoked his final decision-making authority and, over the objection of the respondent, took the child to the Willet clinic where she too was diagnosed with a UTI and was prescribed medication. A week later, over the objection of the respondent, the applicant took the girls to get retested for UTI’s and one of the girls tested positive again.
91The applicant testified that he thought that the respondent was limiting the child’s health care options and not acting in their best interests, so he took action. The respondent testified that she did not think it necessary for the middle child to miss school to get the care she needed and also, at the time, thought it unnecessary for the girls to be re-tested. She conceded, however, that in the end, the decision to take the children to get retested for UTI’s was a good one.
92However, this incident of infections for the two older girls evolved into something more serious. According to the applicant, the physician who attended to the girls’ asked questions about who cared for the children and how it could be that both girls had been infected at the same time. Since they had been in the care of the respondent, the applicant said that he was unable to answer the questions. The applicant testified that the physician said he was going to call the CAS about the matter. He said that no allegation of sexual interference of any kind was ever made, but said that the doctor had suggested this was a possibility. He said that the doctor told him to withhold the children from the respondent until the CAS was able to conduct an investigation.
93I note that the doctor in question was not called to testify at trial, but the CAS records do indicate that he phoned the CAS and reported that the applicant wanted to withhold the girls until a worker interviewed the children because the applicant was worried about sexual abuse. The doctor said that he told the applicant that the cause of the UTI’s was likely a matter of hygiene.
94In cross-examination, the applicant acknowledged that he had called the CAS about this matter. He said that he had contemplated withholding the girls from the respondent but that his lawyer advised him not to. Since the CAS took no position, he returned the youngest to the respondent and kept the two older girls since it was one of his nights with them. He denied that he wanted the CAS to tell him that he should withhold the girls.
95The CAS investigated, interviewing both girls. The CAS had no concerns and reported as much to the applicant. The applicant said that he was relieved to hear that. He denied being upset about the CAS investigation of this incident, but acknowledged when confronted with records from the CAS that he had, in November 2022, complained about the quality of their investigation and had discussed with them making complaints against the CAS and the OPP. He said in cross-examination that he thought the CAS had failed this family and had not acted to protect the children.
96He denied making a complaint against the CAS worker, Ms. Stone, but did say that he thought she had treated him impolitely and had found incorrectly that he has mental health issues, which stigma was created by the respondent. He denied yelling or screaming at Ms. Stone or telling her that she was bad at her job. He did allow that he had been frustrated with the work of the CAS. He acknowledged having threatened to sue the CAS and having threatened to call the police if the CAS showed up at his house.
97The respondent testified that she met with the CAS once in the course of its investigation of the infections. The CAS worker came to her house, spoke to her, relayed the applicant’s concerns, met with the children, and left. The file was closed thereafter.
98Ms. Stone testified at trial. She testified that she interviewed the girls and met with both parents. She had no concerns about any of them and formed the view that the girls were happy, healthy and safe.
3.4.11 June 2022 – Haldimand Norfolk REACH
99On June 14, 2022, the applicant contacted Haldimand Norfolk REACH, an agency which provides various services to families and children. He said that he wanted to obtain mental health supports for the children and himself, and in making his inquiries disclosed to REACH that the respondent had a history of physically abusing the children. REACH in turn reported this information to the CAS.
3.4.12 August 2022 – The older girls change schools
100The two older girls attended Elgin Avenue Public School in Simcoe but were moved to St. Joseph’s Catholic School in 2022. The applicant said that he had to exercise his final decision-making authority in August of that year when he decided to enroll the older girls in St. Joseph’s. The respondent disagreed with that decision at the time.
101The applicant testified that St. Joseph’s had always been the parties’ first choice for the girls and that was why it was referred to in the separation agreement. He testified that the respondent had tried unsuccessfully to enroll the girls in St. Joseph’s for the fall of 2021, so they attended Elgin Avenue by default. In the summer of 2022, the applicant took it upon himself to research the issue further and discovered that there were spots available in St. Joseph’s’ French immersion program. He said that he sent an email to the respondent about this topic, but she reacted poorly to the idea and “became litigious” about it. The applicant testified that he did not understand her objection, so he made the final decision to enroll the children at St. Joseph’s which he regarded as a better school, with better staff and facilities, and that had a curriculum which was in line with the family’s Christian faith and would allow the children to learn a second language.
102The applicant testified that the girls have done well in school and that they have not suffered in French immersion.
103In cross-examination, the applicant agreed that the separation agreement made reference to two schools because the parties had not yet decided on a school. He said that the parties discussed having the respondent apply to St Joseph’s English program and that, if the girls were not accepted, she would look into the French immersion program. However, when the girls were not accepted the applicant was “shocked” to learn that the respondent had not explored the French option. Accordingly, in August 2022 he applied to the French program for the girls, and they were accepted. He said he wanted to have the acceptance in hand before presenting the idea to the respondent. He denied that he had made the decision to change the girls’ school unilaterally.
104The applicant advised the respondent by email on August 15, 2022, that the girls had been accepted. The respondent testified that this was the first she had heard of an application to attend St. Joseph’s and that it had not previously been discussed. They had never discussed sending the girls to French immersion. The respondent replied the following day saying that she wished to consult with her lawyer. On August 17, the applicant replied, saying that he was invoking his final decision-making authority and that the girls would be going to St. Joseph’s. He agreed in cross-examination that about 36 hours passed between his August 15 email and his August 17 email. The applicant said that he took the respondent’s August 16 email as “a no” and as a sign that she had become “litigious” about the topic and was not being “child-focused.” Since the decision had to be made promptly, he went ahead and made it without input from the respondent. He acknowledged that the respondent’s email did not actually say “no” to the decision to move the girls.
105In his August 15 email, the applicant also advised the respondent that he would be moving. Part of the respondent’s concern was the location of the applicant’s new home given that that would be relevant to which schools were available to the girls based on catchment areas. Despite her request, the applicant did not share that information with the respondent. As it turned out, although the applicant did not allow for time to discuss this point, his new home was in the catchment area for the school at which the respondent is a teacher. He denied that he enrolled the girls at St. Joseph’s to avoid having them attend the school where the respondent works.
106On August 5, 2022, before he made the application to St. Joesph’s, the applicant wrote to the respondent and asked that she provide him with the girls’ birth certificates so that he could apply for their passports. The applicant acknowledged in cross-examination that he wanted the birth certificates for use on the application to St. Joseph’s (although he was also applying for their passports). He did not advise the respondent that this was his purpose.
107The respondent testified that before the separation agreement the parties agreed that the girls would attend Elgin Avenue, which was close to where the applicant lived. The parties knew that the girls would be able to go to Elgin based on the applicant’s address, but they also agreed that they wanted to try to get the girls into St. Joseph’s since they were both interested in a faith-based school. At the time that the separation agreement was signed, they had submitted an application to St. Joseph’s but had not heard back yet. The girls were enrolled at Elgin Avenue in the event that they were not accepted. She denied that they had ever discussed the option of French immersion at St. Joseph’s.
108The respondent testified that she disagreed with the decision to send the girls to St. Joseph’s in the fall of 2022 but that she did not even have a chance to share that opinion before the decision was made. She opposed the decision to send the girls there in an urgent motion. She worried about the amount of change that the girls had been going through and that French immersion was not the best option given that the parties have limited French skills themselves. The respondent testified, however, that she would not now change the girls’ school again. She testified in this respect that consistency is key and that the girls seem to be doing well. She also would not now take them out of French immersion but allowed that circumstances might change.
3.4.13 September 2022 – Allegation of physical abuse
109The applicant testified that he had concerns respecting the respondent’s care of the children. On September 9, 2022, he picked the older girls up after school and took them to their horseback riding lesson. They had been in the respondent’s care the previous two days. He said that he observed bruises on the arms of the oldest girl, as did the instructor at the horse farm. He said that he questioned the child at home and that she was guarded at first, then expressed worry that the applicant, a former police officer, would send the respondent to jail, and then revealed that the respondent had grabbed her by the arms and shaken her. The applicant took photos of the bruises and called the OPP.
110The applicant’s father also testified and said that he and his wife spoke to the eldest girl by phone on September 9, 2022. Before the call they knew that the applicant and the trainer had seen bruises on the child’s arms. The girl told them tearfully that the respondent told her not to tell the police what happened because she might get arrested. She then reported that the respondent had grabbed her by the arms, lifted her up, shaken her and taken her to her bedroom where she threw her on the bed.
111The applicant said that, at the direction or suggestion of the OPP, he withheld the children from the respondent for about a week until the police had interviewed the child on September 15, 2022. Because of discussions he had on the day of the interview with the police detective and with Sheri Stone from the CAS, he decided that the respondent’s parenting time would resume then. Following this meeting, the applicant contacted the CAS to complain about Ms. Stone and asked that she be removed from the file.
112In cross-examination, the applicant conceded that the police did not tell him to withhold the children, but he said that he interpreted their advice in that way, and that the CAS had never told him to withhold the children. He conceded that he brought no motion to the court respecting this issue but said he would have done so depending on the result of the police investigation. He said that he did not know if the respondent expected the children to be returned during the investigation.
113About 10 days later he was advised that the police would be laying no charges and that the CAS would not become involved. The CAS had never confirmed any concerns respecting physical abuse by the respondent in connection with this or any other incident. Indeed, by letter dated November 4, 2022, the CAS reported to the applicant that they were not verifying any concerns about physical harm by the respondent, although they did express concern about post-separation adult conflict. This letter also reported to the applicant that the OPP had no concerns about the children being with either parent. After receiving this letter, the respondent made a complaint about the conduct of the OPP and asked that the investigation be re-opened. This was also one of the times that the applicant complained about the conduct of the CAS to the Child and Family Services Review Board. Shortly after that he threatened to sue the CAS if they continued to contact the children and to call the police if the CAS showed up at his house.
114The respondent testified that she found out about this investigation by email from her counsel who advised that a complaint had been made to the OPP and that the children would not be returned to her that day as they normally would have been. She called the CAS, who advised her of the allegation and that there would be an investigation, but also said that they had not directed that the children be withheld. The respondent denied that she had harmed the child in any way and said that the event alleged never happened. She was devastated to have the children kept from her.
115Ms. Stone testified that when she and the police officer spoke to the applicant after the child’s interview, he was told that there would be no charge laid and that the police had no concerns. The detective was concerned, however, about the applicant’s animosity to the respondent. She told the applicant that it was his decision as to whether to send the children back to the respondent and the applicant was not happy with that information and became upset. The officer invited him to consult a lawyer about this issue but also recommended that he speak with the respondent first the next time he has a concern. The applicant said that he would return the girls to the parenting time schedule since the outcome of this investigation left him no choice. Ms. Stone said that the applicant’s tone of voice was threatening and that he accused her of scowling at him. She said that she apologized for how she looked but explained to him that she was confused because most parents would be happy to hear that the police had concluded that the child had not been subjected to excessive discipline but that he was not happy. The applicant agreed that he was not happy. Ms. Stone said that was the last time she met with the applicant.
116Ms. Stone said that during the police interview the child gave confusing information but did say that the respondent had grabbed her arm after she hit one of her sisters. Later, in an interview with Ms. Stone, the child said that she had been confused when she said that her mother had caused the bruises.
117Ms. Stone said that the CAS did not verify any concerns respecting physical discipline but did verify concerns respecting post-separation conflict on the part of the applicant.
118Megan Cooper took over the CAS file from Ms. Stone in November 2022. She said that she spoke to the applicant twice before the end of that year. In the first call, the applicant, who had threatened to sue the CAS or to call the police if they attempted to meet with the children, was not co-operative. He said that he did not wish to work with the CAS since his concerns had not been verified. Ms. Cooper said that he did not raise his voice but would talk over her and not let her finish her sentences. In the second call Ms. Cooper sought to find out whether the applicant would cooperate. The applicant said that he would not work with the CAS. His demeanour was the same: aggressive and talking over her. He accused her of harassing him. In the absence of his consent to speak with the girls, the CAS decided to close the file.
119Ms. Cooper said that she was concerned that the CAS involvement had come to an end without resolution of issues relating to the children and offering supports to them. She said that there were no concerns about the respondent, but that concern lingered about the applicant because he would not speak to them or listen to their concerns about post-separation conflict. She said that it was incongruous that the applicant claimed to be concerned about abuse in the home of the respondent but did not want the CAS to meet with the children at that home.
120The CAS records tendered as exhibits at trial indicate that one of the police officers who investigated this matter did believe that there were grounds to charge the respondent with assaulting the child, but that Crown counsel disagreed. Accordingly, no charge was laid. Another officer told the CAS that there “was a concern for inappropriate discipline but did not feel that a criminal standard had been met.”
3.4.14 Fall 2022 – The middle child is put in a room
121In the fall of 2022, the applicant called the school at which the respondent works to complain that the respondent had, the day before, locked one of the children in a tiny room and that the child had been crying and could not leave. He said that he spoke to a secretary who said that the child had been fine. In cross-examination the applicant said that it was just a coincidence that this complaint was made at the time when he was frustrated that the OPP and the CAS were not proceeding with his allegation that the eldest child had been abused by the respondent.
122The respondent testified that she had the child with her at her school because she had to attend a staff meeting. While she attended the meeting, she put the child in a “learning resource room” which had windows and an open door. The child had an iPad and paper, scissors and crayons to work with. The respondent could see the child at all times when she was in her meeting and the child seemed happy. The respondent left the meeting early and took the child home.
123Melissa Barras is a secretary at the respondent’s school. She testified that she took the applicant’s call that day. He complained about what he understood had happened to his daughter. Ms. Barras investigated, was told by a teacher (not the respondent) that the child had been sitting in the learning resource office, that the door had been open, and that the respondent had been sitting right outside the door. She testified that the applicant became aggressive and direct, or pushy. He wanted her to confirm that the child had been locked in a room and had been crying, which she did not do. Ms. Barras started to feel uncomfortable and said she would have someone else call him back.
3.4.15 October 2022 – Play therapy
124At some point during the police involvement in this matter in September 2022, according to the applicant, he was referred to Victim Services which offered to facilitate play therapy for the two older girls. He said that he accepted the offer of play therapy, which the girls attended every other weekend and which they enjoyed. He did not mention to the respondent that he had accepted this program of therapy for the girls. He said that he did not do so because the service was offered because the respondent had assaulted the eldest child. He agreed in cross-examination that this was a major decision for the girls and that he did not consult the respondent. He insisted that the process was confidential. After the program started, he refused to give the respondent information respecting the therapy other than that it was happening.
125The respondent wrote to the applicant and asked about the nature of the therapy, its goals, and the contact information for the therapist. In an email dated October 22, 2022, the applicant replied as follows: “Based on the fact that you are the alleged abuser, it’s not in the best interest of the children that you are involved in their confidential therapy regarding same.” By letter dated November 2, 2022, from the applicant’s counsel, the respondent was advised that she was not “prohibited” from participating in the therapy sessions but that any participation would be at the discretion of the therapist. The letter but did not advise the respondent who the therapist was, and she was not advised of the name of the therapist until she brought a motion in court.
126The respondent testified that if the girls were going to be in play therapy she wanted to be involved, to be able to communicate with the therapist, and to be able to discuss it with the applicant. She said that she is not opposed to play therapy, but wants to be involved in the selection of the therapist and the setting of the terms of that therapy. She has made a proposal to this effect but has had no response from the applicant.
3.4.16 November 25, 2022 – Dance clothes
127On November 25, 2022, the respondent wrote by text to the applicant enquiring about dance clothes for one of the children. The applicant responded, at first appropriately, and then complaining about the respondent’s tone (which was, by my assessment, curt, but not positively rude). That complaint then moved into a long recitation by the applicant of the OPP investigation into the alleged assault by the respondent on the oldest child in September 2022. The applicant alleged that the OPP had grounds to charge the respondent; that they believed that “you did it”; that the Crown Attorney had considered charges; that “you should have been charged”; that “you were not exonerated”; that the applicant had been meeting with the OPP and that “these facts will be presented to the court”; that “your church” had “played with [the child]’s head;” and that the respondent should stop “gaslighting” the children, whom she had assaulted. In cross-examination, the applicant said that he was not suggesting that this was an appropriate or an inappropriate communication, but that he was simply stating his opinions.
128In response to the applicant’s long list of accusations, the respondent wrote “Please leave the dance bodysuit and tutu in your front mailbox and it will be picked up Saturday morning at 8:50 am. Thanks.”
129When counsel suggested to the applicant that he was still, in November of 2022, communicating in an inappropriate fashion, he said “I disagree.” He said that his texts were an appropriate response to a request for particulars that the respondent had made in court documents.
3.4.17 January 2023 – Extracurriculars
130The applicant testified that he takes the older to girls to dance classes on Saturdays and to taekwondo on Monday and Wednesdays. The youngest was not yet in any extra-curricular activities at the time of trial, although the applicant testified that the parties had discussed having her take gymnastics lessons.
131The applicant testified that the parties’ communications respecting extra-curricular activities have been fraught. The respondent insists on limiting the girls to two extra-curricular activities. He said that he knew the girls were interested in martial arts, so he took them to a free session at a martial arts school in Simcoe and then enrolled them in taekwondo. He said that the respondent complained that he was making decisions unilaterally (which he denied) and that she now refuses to take the girls to taekwondo on her parenting time.
132In cross-examination, the applicant was taken to a January 30, 2023 text message in which he wrote to the respondent that “I have decided for the girls” that he would be taking them to taekwondo. He said that the respondent’s position respecting extra-curriculars is about what is convenient for her and that her refusals to allow the girls to participate in activities which he proposes is “a tool” she uses against him, but which actually punishes the children. However, he did acknowledge that her position – which is that the children should be limited to two stable activities at a time – was in principle a good idea but that there would always be overlap in activities and changes in the girls’ preferences as they get older.
133The respondent testified that the parties were agreeable about extra-curriculars until after the separation agreement was signed. She testified that they should have no more than two activities at a time and that each activity should be once a week. She is open to new activities, but there needs to be a limit so that the girls are not over-burdened. She said she objected to taekwondo because the girls already had two activities. Moreover, after they were enrolled in taekwondo, the applicant advised her that it would be two and potentially three days a week.
3.4.18 January 2023 – Allegation of physical abuse
134The applicant testified that he picked up the middle child from school on January 23, 2023, and she told him that she had had a hard weekend with the respondent. The child said that the respondent had grabbed her by the arm and yelled and screamed. The applicant said that he made a mental note of this news and carried on. Then, on January 30, 2023, the same child told him that the respondent had grabbed her by the arm, dragged her across a room, picked her up and thrown her on the ground and then onto a bed. The applicant called the police and withheld the children from the respondent.
135The applicant testified that the police interviewed both older girls but laid no charge. Neither did the CAS take any action.
136The children did not see their mother for 17 days. The applicant said that the girls became sick on January 25, 2023, and that the parties had agreed that they would stay with the applicant until they recovered. During that time, he received the disclosure of the respondent’s violence and, although they should have been returned to the respondent on February 1 or 2, he decided to withhold them until February 14. The police investigation concluded on February 12 or 13.
137In cross-examination, the applicant conceded that neither the OPP nor the CAS told him to withhold the children and that he did not return the children voluntarily. He did so only when he was required to do so by order of Gordon J. on February 14, 2023, in the context of a motion brought by the respondent, although he denied that he intended to withhold them for longer. At that time, he argued in favour of supervised parenting time for the respondent, given that there was “an ongoing pattern of family violence” by the respondent against the children. He said that he did not seek the approval of the court to withhold the children. He said that by doing so he was following the law to act in the best interests of the children’s safety.
138The applicant conceded that his decision to withhold the children came after disputes with the respondent about when the children should see a doctor, the parenting-time schedule, and whether the respondent would take the girls to taekwondo. Some of the applicant’s text communications to the respondent during this time are aggressive and inappropriate. When the respondent said on January 31, 2023, that she would pick up the children the next morning, the applicant responded by saying that the children were accusing her of “being physical again”. He asked if she was getting help for her mental health issues and taking her medication. He said in cross-examination that he questioned the eldest child that morning before reporting the matter to the police and did not feel that he should wait to let a professional interview the child.
139The respondent testified that she went to the applicant’s house the next day to pick up the children in accordance with the parenting time schedule. She rang the applicant’s doorbell several times and, although she could hear one of the children crying inside, the applicant did not come to the door. When she walked back to her vehicle, the applicant came out of his front door and yelled at her to leave. Which she did. She later learned that the applicant was withholding the children. She saw them next on February 14, 2023. She testified that these events were devastating and surreal. She wonders if the applicant will ever stop falsely accusing her of abusing the children. She denied ever physically disciplining the children or ever screaming or yelling at them, although she conceded having raised her voice with them.
4. Factual conclusions
140From this history I draw the following conclusions.
4.1 Allegations of physical abuse
141The applicant has repeatedly accused the respondent of physically abusing the children. The police and the CAS have been repeatedly called upon to consider and investigate these matters. While there is some evidence of bruising, and some evidence that two police officers may have had concerns, no abuse has been proven on any standard. The CAS repeatedly declined to verify that any abuse had occurred, and the police never laid any charge. Importantly, these allegations were not pursued with any real vigour at trial. Cross-examination of the respondent on these and other allegations was either limited or non-existent. In his closing submissions, the applicant writes that, with one exception, it “is difficult to conclude on the evidence that Ms. Hill has physically harmed the children.” That exception is the occasion upon which the respondent is said to have slapped one of the girls who was biting her arm, which appears to me to have been a spontaneous reaction to pain.
142The evidence falls far short of establishing that the respondent poses any threat to the children. Instead, the evidence of allegations of physical abuse against the applicant is more telling about the conduct of the applicant. Those allegations, made repeatedly, on the slightest provocation, and followed by complaints about the police and the CAS when the investigations did not result in action against the respondent, are indicative of the applicant’s antipathy for the respondent more than anything else.
143The allegations started just after the parties’ separation and were first made either while the applicant was subject to the CAS safety plan (a thing which upset him profoundly) or shortly after it had lapsed. When the first allegation was not verified by the CAS, the applicant immediately made another complaint. I reject his evidence that this was just a coincidence. When the CAS reported the closing of its file in September 2021, the applicant made another complaint. When the older girls got UTI’s the applicant pursued the possibility that the cause was sexual abuse. When the applicant’s report of physical abuse in September 2022 did not result in police or CAS action, the applicant became upset and threatened complaints against the police and the CAS. The applicant’s complaint shortly thereafter that the middle child had been locked in a tiny room in the fall of 2022 was unfounded. On this point, I accept completely the evidence of the respondent. The allegations of abuse made in January of 2023 came after a series of disputes with the respondent about the girls.
144In addition, the applicant has made complaints (or threatened to make complaints) about the respondent to the Ontario College of Teachers, her superintendent, and to the school trustees. He sought to justify none of these complaints at trial, any of which could have had serious consequences for the respondent’s professional reputation. The respondent’s threats of criminal and other proceedings against the respondent, her mother and her counsel, were ill-conceived and should not have been made.
145At the end of all these complaints, the only thing that has been verified is that the girls have been exposed to adult conflict.
146In my view, the conclusion that the applicant has used complaints of physical abuse (and other alleged misconduct) as a means to vilify and/or to annoy and harass the respondent, and to isolate her from the children, including by withholding them, is virtually inescapable. None of these complaints has been made with care or after real sober deliberation, and none has been preceded by inquiry or a request for an explanation. Instead, the applicant has escalated most of these perceived issues to the highest possible level – criminal and/or CAS investigation – at speed and with zeal. I reject his evidence that his only concern was the best interests of the children. I do not doubt that the applicant cares deeply for the girls, but these complaints were motivated at least as much, and probably more, by his deep dislike of the respondent. The fact that several of the complaints resulted in the applicant withholding the children from the respondent is in my view strong evidence of his real motivation: to limit the girls’ time with the respondent. His obvious displeasure with the authorities who did not substantiate his claims, supports this conclusion.
4.2 Communications
147Each party complains about the style and content of the communications of the other. With respect to the respondent, it is said that she has a short temper and resorts to yelling and screaming when she is upset. With respect to the applicant, it is said that his communications are aggressive and manipulative.
148I agree with the applicant that there is some evidence that the respondent loses her temper, but I am not prepared on the record before me to conclude that she does so other than when communicating with the applicant. Further, while yelling and screaming, if it happened, cannot be condoned, especially if it is done in the presence of the children, I am unable to conclude that the respondent acted without provocation of some kind from the respondent. The independent evidence of the respondent’s behaviour, that of Ms. Neumann and Mr. Louch, while describing losses of temper, was vague or unhelpful in determining what had upset the respondent in the first place. I have already considered the evidence of the applicant’s father and as for the evidence of the applicant himself on this topic, I am of the view that it cannot be relied upon.
149I come to this conclusion in part based on the evidence of the applicant’s own communications. The respondent submits that the applicant “has engaged in a pattern of demeaning, belittling and degrading communications” with the respondent. There is a wealth of evidence to support this submission. The applicant’s texts and emails are characterized by repeated allegations of the kinds described under the previous heading and by repeated references to the respondent’s alleged struggles with mental health – none of which was established at trial. In this latter respect, the applicant’s communications are especially difficult to understand given his own struggles with mental health issues.
150The applicant accuses the respondent of engaging in games and power struggles, and of acting childishly. In truth, it is the applicant’s communications which are manipulative and childish. While I do not conclude positively that the respondent has lost her temper in the fashion described by some the witnesses, if she has done so, it is very likely that she has done so in reaction to the applicant’s abusive or otherwise “demeaning, belittling and degrading” communications.
151While the applicant claims to be working on his communications with the respondent, his failure at trial to accept that some of his communications were inappropriate (for example, his email of November 11, 2021 to the respondent’s counsel) shows that much work remains to be done.
4.3 Decision-making
152Closely related to the issue of parties’ communications is the issue of decision-making to date. On several occasions, the applicant has purported to exercise the final decision-making authority provided to him in the separation agreement. While there is no doubt that the separation agreement confers this authority, the agreement also required the parties to consult with one another and to take each other’s opinions into account before arriving at any major decisions.
153The applicant says that his use of his final decision-making authority has always been in the best interests of the children, and when the respondent was being difficult or unreasonable. He notes that the respondent cannot point to any decision he made for the girls which she would undo now, and her concession that some of those decisions were good decisions, or had good outcomes for the girls.
154The respondent, on the other hand, says that the applicant has abused the final decision-making authority and has turned it into a power to make decisions unilaterally, and has resulted in the applicant finding excuses to withhold the children from the respondent without the need to get a court order amendment to the parenting-time schedule.
155On this point too, I accept the submissions of the respondent. In my view, the respondent has repeatedly abused his decision-making power.
- He purported to use the power to prevent the respondent from taking the children to the Pentecostal church (but relented after hearing form the respondent’s counsel) and to prevent the respondent from taking the youngest child to the day care associated with that church.
- He invoked his final decision-making authority to press ahead with an appointment to have the youngest child vaccinated when the respondent had simply requested time to understand why the vaccine was being administered in two doses. He withheld the child from the respondent to carry out this purpose even though the respondent said that she would take the child to the doctor and even though the child was still being breast-fed and had not previously been away from her mother overnight. He intended to withhold all three children for longer but got legal advice to return them. Contrary to the applicant’s evidence, it was not the respondent who was playing games, or trying to alienate, it was the applicant who was engaged in that behaviour.
- He invoked his final decision-making authority to take the youngest child to McMaster Children’s Hospital (ignoring or not considering the respondent’s worry that taking a baby to a hospital during the pandemic was unsafe) and to take one of the older girls to get tested for a UTI during school (ignoring or not considering the respondent’s view that the child was not in pain and could get tested after school). The applicant defends these decisions because they had good outcomes for the girls, but his behaviour was high-handed and autocratic and, in the latter instance, led to another incident of withholding. The respondent’s concerns were not unreasonable and could have been accommodated by one less consumed by control.
- The applicant’s decision to change the girls’ school was both single-handed and underhanded. He failed to advise the respondent that he was considering this issue, was less than honest with her about why he wanted the girls’ birth certificates, and completely failed to give her time to consider the issue before invoking his final decision-making authority. I accept the respondent’s submission that it is entirely possible that the applicant chose to enroll the girls in a new school without telling the respondent precisely so that he could ensure that they would not attend the school at which she is a teacher.
- He withheld the children from the respondent in September 2022 because of the alleged abuse of the eldest girl when neither the police nor the CAS said that she should be withheld from the respondent, and after going to the police before seeking to discuss the issue with the respondent.
- The applicant enrolled the older girls in play therapy without consulting the respondent, and then refused to give her information about the program. There was, in my view, no justification for failing to advise the respondent of the play therapy or for refusing to provide information to her about it once it started. Among other things, this was a clear violation of the terms of the parties’ separation agreement.
- Although he denied it, it is clear that the decision to put the girls into taekwondo was a unilateral decision. Contrary to the applicant’s evidence, the text communications between the parties show that it was the applicant who was being unreasonable when they were discussing taekwondo and possible changes to their parenting-time schedule.
- Immediately after the text dispute about parenting time and taekwondo, the applicant decided to withhold the children again, having again complained of physical abuse. Neither the OPP nor the CAS told the applicant to withhold the girls, he made that decision himself. Before going to the police, he failed to ask the respondent for any explanation, he simply launched an unrestrained attack at her by text. I accept the submission that this most recent allegation of physical abuse is difficult to credit given its proximity to other disputes with the respondent and the imminence of the trial date.
156This collection of incidents supports the respondent’s submission that the applicant has abused his decision-making authority, uses it to intimidate and to exert power and control in this family setting, and has engaged in a long-term manipulative project to paint the respondent as an unfit and uncooperative parent, at least in part for the purposes of this litigation.
157The respondent submits, and I agree, that the following excerpt from McBennett v. Danis, 2021 ONSC 3610 (at para. 97(7)), is apt in this respect:
…one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then justify a claim for sole decision-making in their favour on the basis of lack of cooperation and communication.
5. Discussion
158The parties make competing submissions about how I should resolve questions of parenting time and decision-making. The conclusions I draw on these questions will affect decisions to be made about child support and other requests for relief.
5.1 The best interests of the children
159Parenting decisions are, of course, governed by the best interests of the children. The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as am. (the “Act”), section 16, sets out the relevant factors for determining those best interests, and I will turn to those factors below.
160As a general matter, though, I begin by commenting on the significance of the fact that the parties have entered into a separation agreement. In this respect, I quote and adopt the summary of the law on this point provided by Justice Broad in A.P. v. J.G, 2023 ONSC 1416 (at para. 64 – 65, citations omitted):
It is clear from the jurisprudence that parenting terms in separation agreements are not binding on the court because it is the interests of the child rather than those of the parents which are at issue. In making a change to a separation agreement it is not necessary that the court find a material change in circumstances.
Although parenting terms in a separation agreement are not binding on the analysis, they may be considered in a best interests analysis for two factors: first, as a reflection of the parties’ intention at the time that they signed the agreement; and second, as evidence of the status quo, which is pertinent to the best interests analysis.
161Accordingly, my obligation is resolving this matter in the best interests of the child. Any parenting orders I make will supersede the separation agreement. Of course, to the extent that the separation agreement is unaffected by orders I make in this matter, it will remain effective.
5.1.1 Safety and well-being, family violence (s. 16(2), (3)(j) and (4))
162The primary factor in determining best interests is the “physical, emotional and psychological safety, security and well-being” of the children (s. 16(2)). The children are in no physical, emotional or psychological danger in either parent’s home. Indeed, both parties urge me to allow the other party to parent the children and, as I said at the outset of these reasons, the evidence is that these particular children are lucky enough to have two good homes with parents who love them.
163The only concerns in this regard (given that I have concluded, and the applicant has all but conceded, that the allegations of physical abuse by the respondent have not been made out) relate to the exposure of the children to adult conflict.
164On the evidence before me, the chief source of adult conflict is the applicant. His repeated complaints about the respondent, his withholding of the children, his inappropriate, controlling and intimidating communications with the respondent and others, and his abuse of his final decision-making power, all support this conclusion. Certainly, that was the conclusion of the CAS workers who worked with this family.
165I do not doubt that the respondent bears some responsibility for conflict between the parties, and it may be that she has a short temper, but the weight of the evidence is that the applicant is the chief source of conflict.
166It is very much to be hoped that the fact that the court has now heard and determined this matter, and made the orders set out below, will reduce areas of friction between the parties.
5.1.2 The children’s needs, relationships, and history of care, and the ability of the parties to meet the needs of the children (s. 16(3)(a), (b), (d) and (h))
167These children are young and have the usual needs of children their age. Apart from some evidence that the youngest may be underweight, I have heard no evidence of serious health concerns or unusual or special needs for any of them. As I said earlier in these reasons, I am satisfied that both parents have been involved and caring parents and that both are fit parents. Both parents have the ability to meet the needs of these girls.
5.1.3 The parents’ willingness to support the children’s relationship with the other parent, and to co-operate with each other in parenting (s. 16(3)(c) and (i))
168The girls have strong relationships with both parents, and with extended family on both sides.
169Both parents urge me to allow the other parent to parent the children and both acknowledge the bond between the children and the other parent. To this extent, they both indicated a willingness to support the children’s relationship with the other parent.
170However, as the evidence has demonstrated, there have been serious failures to co-operate in the parenting of these girls. I am certain that responsibility for these failures is shared, but not shared equally. I am satisfied that the applicant has repeatedly abused his final decision-making authority, and has worked to undermine or manipulate the respondent and her parenting. I cannot conclude otherwise than that it is possible that the applicant will continue to conduct himself in this fashion.
5.1.4 Plans for care, including for the religious upbringing of the children, and the maximum parenting time principle (s. 16(3)(f), (g) and (6))
171The parties have differing plans for the girls which, on the major points, I summarize here.
172The applicant proposes that the children have their primary residence with him and that the respondent have parenting every other weekend and on one overnight during the week. He takes the position that as a stay-at-home parent, he is best able to provide for the needs of the girls and to offer them stability, given that the respondent has a full-time job. He says that this is especially important for the youngest, who would not have to attend day care if she were living with the applicant. The respondent proposes that parenting time be shared equally and that on her days, when she is working, the youngest attend day care. Her position, she submits, respects the principle that children should have as much time with each parent as is in their best interests (89, and s. 16(6) of the Act). The parties make similar (but not identical) proposals for how holidays should be shared.
173The applicant proposes that he have sole decision-making responsibility for the children. The respondent proposes that she have that responsibility.
174For the moment at least, both parents propose that the older girls continue their schooling at St. Joseph’s and that the youngest be enrolled there in due course.
175The applicant would change the girls’ primary physician. The respondent would not make that change.
176The applicant takes the children to a Catholic church, and they attend a Catholic school. He hopes that they will be able to participate in the sacraments of that church. He does not oppose the respondent’s desire to have the girls attend the Pentecostal church on her parenting-time. The respondent does not object to the girls attending the Catholic church but does object to the girls’ participation in the sacraments of the Catholic church.
5.1.5 The views and preferences of the children (s. 16(3)(e))
177There is little evidence of the views of the children, apart from the fact that they love both their parents and are happy in both homes. There is some evidence that the older girls enjoy the 50/50 split of time between their parents, but a divergence of opinion between the parties as to whether the 2-2-3 schedule is confusing to them, as the applicant testified, or which they understand and have absorbed as part of their lives, as the respondent testified.
5.2 Parenting-time and related issues
5.2.1 Equal vs. unequal division of parenting time
178In September of 2022 the 2-2-3 parenting time schedule did become the same for all three girls as the separation agreement had provided, but because the respondent was working and the applicant was not, he would care for the youngest Monday to Friday during the respondent’s work hours, whether or not it was one of his parenting time days. After the respondent’s urgent motion in February, the 2-2-3 schedule was re-instituted by order of Justice Gordon, dated February 14, 2023.
179The applicant testified that he thought the 2-2-3 schedule was unsatisfactory because the girls were unhappy with the back and forth between homes. He said that he disagreed with a 5-5-2-2 schedule and with a week about schedule, the former because it has complications during the week and the latter because it interferes with extracurricular activities. He said that his claim for unequal parenting time was not an attempt to limit parenting time for the respondent, but to provide a stable home with a stay-at-home parent so that the children have consistency in their lives. The respondent cannot offer that given her work. Moreover, the applicant said that he continues to be concerned about the respondent’s physical abuse of the children, especially when she is experiencing stress (a submission I have already rejected).
180The applicant submits that the children should live primarily with him and that the respondent should have parenting time with the girls one night per week and every other weekend.
181The respondent takes the position that there is no reason that the parties cannot share parenting time equally, as they have been doing for some time, and as the separation agreement provided. The respondent argues that the applicant’s proposal does not respect the principle that children should have as much time with each parent as in the children’s best interests (see McBennett v. Danis, supra, at para. 89, and s. 16(6) of the Act). She testified that the girls are used to the 2-2-3 schedule and that they like the fact that they are not separated from either parent for too long at any time. The respondent submits that the 2-2-3 schedule should continue. In the alternative, a 5-5-2-2 schedule should be imposed.
182I am satisfied that it is in the best interests of these children that they spend equal time with each parent on the current 2-2-3 schedule imposed by Gordon J. which effectively restored what the parties had agreed to in their separation agreement. I come to this conclusion for several reasons.
- First, they have good strong relationships with parents and with extended family on both sides. Neither party disputes this point. In my view, it is in the best interests of these children that these relationships should be fostered equally by equal parenting time.
- Second, both parents are fit and capable parents who offer good homes to the girls. This is not disputed and is the opinion of the CAS workers who were assigned to this matter.
- Third, at their age and stage of development, they should not be separated from either parent for too long (see AFCC Ontario, Parenting Plan Guide, 2020, at pp. 17 – 20).
- Fourth, for the older girls at least, equal parenting time is what they have experienced to date and there is, in my view, a need to instill stability in their lives given that they have experienced some considerable changes and some turmoil since 2021. I refer here to the disintegration of their parent’s relationship, the move out of the matrimonial home and into two new homes, the change of schools, multiple occasions on which they have been separated from one parent or the other, attendance at two churches instead of one, to say nothing of the fact that many of the relevant events occurred during the pandemic.
- Fifth, the evidence before me is that the children are happy, healthy, and progressing well. This is a further reason for maintaining the status quo, at least as far as the older girls are concerned. The only evidence I have to the contrary is contested evidence that the girls find the current schedule confusing. In my view, that evidence is outweighed by the evidence that they are flourishing despite the conflict between their parents.
183The applicant casts his argument in favour of the conclusion that he should have the vast majority of the parenting-time as one of practicality. He says that because he is not employed, he is simply better situated to offer better, more stable care to the children, especially the youngest who is not yet in school. Sometimes, it is in the best interests of a child to spend more time with a parent who has more time to parent (see AFCC Ontario, Parenting Plan Guide, 2020, at pp. 12 – 23). He argues that, were he a woman, the court would have no difficulty accepting this position, and warns me against deciding this matter without regard to potential unconscious bias born of stereotypical ideas about gender roles.
184While this argument is not without some force, I cannot accept in the circumstances of this case that parenting time should be divided unequally. To the reasons I have set out above, I add that it is the applicant whose behaviour has sought to limit the role of the respondent in decisions, to isolate her and to paint her as unfit, and to withhold the girls from her. One of the real risks of imposing unequal parenting time in this particular case is the isolation of the respondent, which is very much contrary to the best interests of these children. I note also that the applicant agreed to an equal division of parenting time in the separation agreement at a time when the parties’ circumstances were not very different than they are now.
185Further, while the respondent is busy with professional responsibilities beyond caring for her own children, that is true of many people who parent successfully. To this I add that there is potentially substantial benefit to three girls seeing up close a working mother balance a career with motherhood. This is a role they might well be filling themselves one day.
186As for the youngest child, the applicant’s chief argument is that it is in her best interests that she stays at home with him rather than be sent to day care, as the respondent proposes for her parenting days until she is in school. I cannot accept the applicant’s argument. No expert evidence was led about whether children do better at home or in day care setting. Of course, many children are successfully raised at home without going to day care, and many children are successfully sent to day care. Notwithstanding vague expressions of concern about the particular day care centre to which the respondent proposes to send the child, the applicant’s argument rests essentially on his own confidence that the child is better off with him and that the respondent’s claims respecting the benefits of day care (that it is important to the child’s development that she be socialized in the absence of her parents so that she becomes independent) are speculative. In my view, the applicant’s argument ignores the fact that, before the parties separated, at a time when the applicant was also a stay-at-home parent, the older girls were sent to Calvary Day Care (and were happy there), and that, after the parties separated, they agreed in writing that the youngest would be sent to Calvary Day Care. Moreover, I do not think that it is speculative to say that toddlers benefit from socialization in the absence of their parents.
187In any case, on an equally divided parenting-time schedule, on his time the applicant can have the child at home with him and, on her time, the respondent may choose to send the child to day care. The child will have the benefits of both options.
5.2.2 Parenting time on special occasions, holidays and vacations
188The parties have made similar but not identical parenting time proposals with respect to the division of time on special occasions, holidays and vacations, which I summarize as follows:
- They are either completely agreed, or are agreed on all but matters of the time of exchanges or of which years (even or odd) on which the parties should have parenting time, with respect to summer vacation, Christmas, New Year’s, Easter, Thanksgiving, Mothers’ Day, Fathers’ Day and Hallowe’en. With respect to these holidays, my conclusions respecting the minor disputes between the parties are set out in the orders I have made in part 6 of these reasons below, which orders reflect what I regard as the simplest and fairest resolution of these small debates.
- With respect to March break, the parties agree that this vacation period should be shared equally but differ as to how that equality should be achieved. The applicant proposes dividing the week in half each year, while the respondent proposes that in alternating years each parent have the children in their care for the entire week. I heard no evidence respecting the relative merits of these alternatives. In the absence of that evidence, given the age of the girls at this time, I am inclined to the position of the respondent, since it limits the length of the number of consecutive days during which they are separated from each parent.
- The applicant proposes that he have parenting time every year on his birthday from 3:45 p.m. to 7:00 p.m., presumably on days when the girls would otherwise have parenting time with the respondent. The respondent has taken no position on this matter, but she proposes that the regular parenting schedule not be disturbed for the girls’ birthdays. The applicant has made no submissions on this point. In my view, it is simplest and equitable to make no special provisions for birthdays. The regular parenting time schedule will govern on the birthdays of family members.
- For the Family Day and Labour Day weekends, the respondent submits that the parties should have the girls for the entirety of those weekends in alternating years. The applicant proposes that no special provision should be made for these weekends and that the regular schedule should apply. Again, I have heard little by way of evidence or submissions on the relative merits of these competing positions, but it seems to me respondent’s position allows each party to take advantage of a long weekend to do something special in a way that would be impossible under the applicant’s proposal.
5.2.3 Exchanges of the children
189As for exchanges of the children, they will continue as ordered by Justice Gordon on February 14, 2023, except that on scheduled exchange days when the youngest daughter is taken to day care by the respondent in the morning, the applicant will pick up the child from the day care centre.
5.2.4 Right of first refusal
190The respondent proposes that there be no right of first refusal should either of the parties be unable to parent personally during their assigned parenting time. She argues that both parties have extended family and other support that make such a provision unnecessary. Moreover, given the conflict between the parties, and the difficulties they have had communicating, eliminating the need to communicate respecting this issue will assist in minimizing conflict (see Bolton v. Wilson, 2023 ONSC 1144, at paras. 156 – 159).
191I agree with these submissions and make no order as to a right of first refusal.
5.3 Decision-making and related issues
5.3.1 Decision-making
192As the history of this matter demonstrates, the parties do not communicate well and have had serious conflict surrounding important decisions for the children. It is clear to me, and to the parties, that final decision-making responsibility should be afforded to one of them or the other given that it is highly unlikely that they can successfully exercise joint decision-making (see McBennett v, Danis, supra, at para. 97(3), (7), (8), (15); Kaplanis v Kaplanis (2005), 2005 ONCA 1625, 249 D.L.R. (4th) 620 (Ont. C.A.), at para. 11).
193Again, the decision as to which party should have final decision-making responsibility must be governed by the best interests of the children. The applicant says that the parties agreed that he should have final decision-making responsibility in their separation agreement, that he has since that time made good decisions for the girls, always with their best interests at heart, and that the respondent has been unable to point to any decision which has caused any harm to the girls. He says that the respondent becomes unreasonable when they disagree. The respondent says that the applicant has abused his final decision-making authority, has made decisions without consulting her, has kept information from her, and has failed to engage in meaningful consultation with her or outright ignored her views.
194As I found above, I accept the respondent’s submission that the applicant has abused the final decision-making responsibility provided to him in the separation agreement. Importantly, although the separation agreement does give the applicant the final say where the parties cannot agree, the agreement makes plain that the parties intended that they would share joint decision-making responsibility and that they “shall consult with one another on all major decisions” and “shall take one another’s opinions into consideration in arriving at any major decisions.” The applicant has failed to abide by these provisions of the separation agreement on several occasions in respect of decisions which on any standard would qualify as “major.”
195The submission that none of the decisions made by the applicant has caused harm to the girls underestimates the sphere of relevant harms resulting from his conduct (and any future conduct should he continue to have final decision-making responsibility). It may be true that the applicant’s decisions respecting the children were rational and have benefited the girls. Prompt medical attention, arranging for therapy, and enrollment in what one perceives to be a good school are, without more, obvious advantages for any child. But the end result is not the only value. By making decisions unilaterally or without genuine consultation, the applicant robs the children of the benefit of the views, experience and wisdom of 50% of their parents and creates adult conflict which has had a direct and deleterious effect on this family. None of this is in the best interests of the children and that is why Parliament specifically refers to the willingness of parents to communicate and cooperate on matters affecting the children as a factor in determining their best interests (s. 16(3)(g) of the Act).
196I add that the respondent’s positions on each of the contested areas of decision-making were never unreasonable even if the applicant’s positions were also reasonable. I am confident that her decision-making will meet the needs of the girls and will not make decisions which interfere with their relationships with the applicant and his family. Moreover, on the evidence before me, the respondent is more likely to consider honestly the views of the applicant in making decisions and is more likely to cooperate with the applicant. As I have said, the applicant has shown the opposite.
197For these reasons, decision-making responsibility will reside with the respondent for decisions respecting the non-emergency medical care, counselling, therapy, education, religious upbringing, and extra-curricular activities of the girls. Both parties will make day-to-day and emergency medical care decisions for the children while they are in their respective care.
198For further clarity, I now address some specific decision-making areas canvassed at trial.
5.3.2 Education and Medical Care
199I see no need to make any special order with respect to the education and medical care of the girls. The respondent’s general decision-making responsibility will govern in these areas. For example, the respondent will have the responsibility to select a physician for the children. With respect to education, as noted above, both parents are at present content that the older girls attend St. Joseph’s and that the youngest be sent there in the future. Whether the girls continue in French immersion will be for the respondent to decide as will all future decisions respecting schooling for the children as they grow older.
5.3.3 Day care
200As I found above, I am satisfied that the youngest child may be sent to day care on days when the respondent is exercising parenting time. However, the respondent may not insist that the applicant send the youngest child to day care on days when he is exercising parenting time.
201In other words, the applicant need not send the youngest child to day care on his parenting time, but he may do so if he wishes. However, should the applicant choose to send the youngest child to day care on his parenting time, the day care provided will be chosen by the respondent as part of her decision-making responsibility.
202In this regard I note that I heard little evidence on the suitability of the day care preferred by the applicant and only vague evidence of complaint by the applicant about the suitability of the day care preferred by the respondent. The respondent testified that her day care of preference was one with which the family had experience (the older girls attended it and were safe and happy there) and it has a spot available. While the day care preferred by the applicant is said to be a “feeder” for St. Joseph’s, which the youngest is expected to attend, and there may be some advantage to that fact (although there was no evidence before me of what that advantage is), it will be for the respondent to investigate and consider the relative advantages of these two (and indeed, any other) options.
5.3.4 Extracurriculars
203As has been seen, the girls’ extracurricular activities have been a source of conflict between the parties. One of the disadvantages of the 2-2-3 schedule that has been imposed, and which I have ordered is to continue, is that it makes it difficult to schedule extra-curricular activities where the parents do not agree on which extracurricular activities should be undertaken. For example, in this case, the respondent has disagreed with the decision to enroll the girls in taekwondo lessons. This has created conflict when those lessons fall on days when the respondent has parenting time.
204In the unfortunate circumstances of this case, it seems to me that the only solution to this problem is to permit the respondent to decide in which extracurricular activities the children will participate. It will be up to the applicant to co-operate in getting the girls to those activities if and when they are scheduled for his parenting time, but I make no order to this effect. Instead, I prefer to rely on his willingness to act in the best interests of the children.
5.3.5 Religion
205Since separation, the parties have attended different churches and have developed different positions about the religious upbringing of the children, a topic which has caused friction between them. The applicant sees no reason why the girls cannot attend both the Catholic and the Pentecostal churches, but he wants them to be able to participate in the Catholic sacraments including, but not limited to, baptism and confirmation, which they should be able to do with their classmates at the Catholic school they attend.
206The respondent does not object to the girls attending both churches, but she does object to the girls participating in the Catholic sacraments. The girls were born at a time when both their parents were Pentecostal, it was intended that they be raised in the Pentecostal church, and they have all been dedicated in ceremonies at that church. The applicant has made no similar objection to any rites of the Pentecostal church.
207As the Supreme Court of Canada recognized in Young v. Young, 1993 SCC 34, [1993] 4 S.C.R. 3, there can be substantial benefit to a child who is exposed to different religions. Accordingly, and given Canada’s strong tradition of religious freedom, the courts do not typically interfere with the religious choices made by parents for their children, even when divorcing parents choose different religions for the children they share (see paras. 134 – 137). Nevertheless, the divergent religious choices of the parents may occasionally be relevant to an analysis of the best interests of the children (see paras. 134, 137 – 138).
208In this case, neither party objects to the children being exposed to the religion of the other, hearing its teachings, or attending its services. However, there is substantial disagreement about whether the children should participate in the sacraments of the Catholic church. There is no evidence that participation in the sacraments, by itself, would cause harm to the children, but I infer from the respondent’s position that participation in the Catholic sacraments would signal their admission into that church, perhaps to the exclusion of the church she prefers as a matter of strongly held faith. Eventually, of course, these children will make their own decisions respecting their religious beliefs, if any, but in the meantime, the religious decisions made for them, including whether to participate in the sacraments, must be in their best interests.
209It is, of course, not for me to choose or prefer one religion or denomination over the other, but as Justice L’Heureux-Dubé wrote in Young, supra (at paras. 144 – 145, emphasis added, citations omitted):
… where religion becomes a source of conflict between the parents or is the very cause of the marriage breakdown, it is generally not in the best interests of the child and may in some circumstances be very detrimental for the child to be drawn into the controversy over religious matters.
As one commentator has pointed out, it is precisely the cases in which children become embroiled in religious conflict that cast doubt on the wisdom of the decisions which have allowed the religious rights of the access parent to prevail. Where there is conflict over religion, courts must secure the longstanding authority of the custodial parent to make decisions over religious activities. This ensures that stress occasioned by such issues does not become a continuing and ultimately destructive feature in the life of the child after divorce.
210In this case, there has already been significant conflict between the parties concerning the care, education and raising of their children. As Justice L’Heureux-Dubé wrote in Young, supra (at para. 136), “few issues are more likely to evoke the passions of … the parties” than a clash over beliefs and religion. Given the history of this matter, such a clash is entirely predictable here, and has already begun to manifest itself. Accordingly, in my view, it is necessary to resolve this issue for the parties by ordering that, while the children should continue to be exposed to the Catholic faith as the applicant desires, they will not participate in the sacraments of that church without the consent of the respondent. In other words, the respondent’s decision-making responsibility will include decisions respecting the religious upbringing of the girls.
5.4 Child support and special and extraordinary expenses
5.4.1 Child support
211The parties earn similar annual incomes. In their separation agreement, which provided for the equal parenting time, apart from a one-time lump sum payment from the applicant to the respondent, the agreement made no provision for ongoing child support.
212Initially, the respondent took the position that if she were successful in arguing for equal parenting time, she would seek no order for child support. However, during the course of the trial, evidence was given respecting Canada Pension Plan disability benefits which the applicant receives for each child. The respondent now takes the view that this non-taxable income should be grossed up along with other non-taxable income received by the applicant, and that a set off monthly child support payment should be ordered pursuant to s. 9 of the Federal Child Support Guidelines which the respondent calculates at $283 per month. In the alternative, the respondent proposes that the applicant provided 50% of the CPP child benefit.
213The applicant disputes the respondent’s calculations and her submissions about which portions of the applicant’s income are taxable and which are not (including the CPP child benefit). As the respondent notes, neither party focused on the child support issues at trial, little evidence was called on these points, and the respondent’s current submission seems more afterthought than considered position.
214In all these circumstances, I am not inclined to amend the separation agreement respecting ongoing child support. In other words, I make no order for child support payable by either party. Of course, given that child support is the right of the child, should there be in future a material change in the income of either party such that there is a significant discrepancy between the incomes of the parties, the parties may wish to revisit this issue. For that reason, I do order that the parties exchange financial information annually.
5.4.2 Retroactive child support
215The applicant claims that he is owed retroactive child support given his care of the youngest child during the respondent’s parenting time while the respondent went to work as a teacher. The respondent argues, however, that she wanted to send the child to day care on her parenting time but that the applicant forbade her from doing so, invoking his final decision-making authority. She paid the Calvary Day Care centre monthly to keep a spot available for the youngest child should the applicant change his mind. The respondent argues that the applicant should get no credit for having cared for the child on her time when she was willing to pay for day care herself. To award retroactive child support to the applicant now would be to reward him for abusing his final decision-making power.
216On this point I agree with the respondent and make no order for retroactive child support. While the applicant did spend more time with the youngest child, that was a manipulation of his own making. As I have already found, the applicant provided no good reason for objecting to the respondent’s day care of choice.
5.4.3 Special and extraordinary expenses
217In the separation agreement, the parties’ agreed to share special and extraordinary expenses equally. The respondent urges that this should continue and the applicant has made no submission on this point.
218I agree that these expenses should be shared equally. Accordingly, I make no amendment to the separation agreement in this respect.
5.5 Other orders
219The parties have made submissions respecting a variety of other orders, which I address now.
5.5.1 Divorce
220The parties agree that I should grant the jointly-claimed divorce.
5.5.2 Corporal punishment
221The parties agree that an order may be made that they not use corporal punishment with the children.
5.5.3 Communications
222The parties agree that they should continue to communicate in writing by the AppClose program, except in case of emergency, and that their communications should be brief and child-focused. The respondent submits that they should also reply to each other in a timely way. There have also been submissions respecting not engaging the children in adult conversations and non-disparagement. While they are not entirely agreed on all these points, their positions are not very different, and I agree that orders should be made to this effect.
223The respondent also seeks an order that the children may initiate contact with the non-parenting party once a day. The applicant is not opposed to the spirit of this request but argues that it may create a source of conflict between the parties. In the circumstances of this case, which involves low levels of trust between the parties and instances of withholding, I think the order sought by the respondent is appropriate.
5.5.4 Right to information
224The parties agree that it is appropriate to order that each of them is entitled to information and may make inquiries of professionals and others providing services to the children.
5.5.5 Documents
225Although the parties agree that they will co-operate in obtaining passports for the girls, they disagree about which of them should have charge of the children’s important documents, including birth certificates, health cards, immunization records, and passports.
226In my view, in keeping with the decision-making conclusion I have come to, it is appropriate that the respondent maintain the girls’ important documents, ensuring that the applicant has current copies of all such documents, and is provided access to them when and as he requires them for the children. Where the applicant is provided with the documents, he will return them promptly to the respondent as soon as his purpose for having the documents is complete.
5.5.6 International travel
227The respondent has submitted that an order be made requiring the parties to provide detailed information respecting any proposed international travel with the children. The applicant does not oppose the spirit of this request but worries that the strict terms proposed by the respondent will create a point of conflict between the parties.
228I have reviewed the order the respondent proposes. Given the history of this matter, which, I repeat, reveals a low level of trust between the parties, I am of the view that the order sought by the respondent should be made, requiring as it does full transparency as to any international travel plans.
6. Conclusion
229In conclusion, I make the following orders:
- The parties shall share regular parenting time of the children equally on the 2-2-3 schedule described in the order of Gordon J., dated February 14, 2023.
- Parenting time on special occasions, holidays and vacation periods shall be on the following schedule, which shall override the regular parenting time schedule in the event of conflict: a. Family Day long weekend: the children shall stay with the applicant on the Family Day long weekend in odd-numbered years and with the respondent in even-number years from after school/day care on Friday until return to school/day care on Tuesday. b. March Break: the parenting time of the party having regular care of the children on Friday after school/day care preceding the commencement of March Break shall have extended parenting time until Wednesday of March Break at 7:00 p.m. The other party shall have parenting time from Wednesday of March Break at 7:00 p.m. until Monday return to school/day care. c. Easter: in odd-numbered years the respondent shall have parenting time with the children on the Easter weekend from Thursday after school/day care until Saturday at 5:30 p.m. and the applicant shall have parenting time from Saturday at 5:30 p.m. until Tuesday return to school/day care. In even-numbered years this schedule will be reversed. d. Mothers’/Fathers’ Day: the respondent shall have parenting time on Mothers’ Day from Sunday at 8 a.m. until Monday return to school/day care and the applicant shall have parenting time on Fathers’ Day from Sunday at 8 a.m. until Monday return to school/day care. e. Summer vacation: during the school summer break, each party shall have uninterrupted parenting time with the children for two non-consecutive weeks during which period the regular parenting time of the other party will be suspended. The applicant shall have first choice of parenting time for the summer vacation in even-numbered years and the respondent shall have first choice of parenting time for the summer vacation in odd-numbered years. The party with first choice will advise the other party, in writing, by April 1 of the weeks chosen, and the party with the second choice will advise the other party, in writing, by May 1 of the weeks chosen. The chosen weeks shall be chosen so as to include that party’s five-day period of parenting time under the regular parenting time schedule. f. Labour Day long weekend: the children shall stay with the respondent on the Labour Day long weekend in odd-numbered years and with the applicant in even-numbered years from after school/day care on Friday until return to school/day care on Tuesday. g. Thanksgiving Day long weekend: the children shall stay with the applicant on the Thanksgiving Day long weekend in odd-numbered years and with the respondent in even-number years from after school/day care on Friday until return to school/day care on Tuesday. h. Hallowe’en: the applicant shall have parenting time with the children on Hallowe’en from after school until 7:00 p.m. on even-numbered years and the respondent shall have parenting time with the children on Hallowe’en from after school until 7:00 p.m. on odd-numbered years. i. Christmas: the respondent shall have parenting time with the children in odd-numbered years, and the applicant in even-numbered years, from December 24 at 12:00 noon until December 25 at 12:00 noon. The respondent shall have parenting time with the children in even-numbered years, and the applicant in odd-numbered years, from December 25 at 12:00 noon until December 26 at 12:00 noon. j. New Year’s: the applicant shall have parenting time with the children in odd-numbered years, and the respondent in even-numbered years, from December 31 at 12:00 noon until January 1 at 12:00 noon. The applicant shall have parenting time with the children in even-numbered years, and the respondent in odd-numbered years, from January 1 at 12:00 noon until January 2 at 12:00 noon.
- Exchanges of the children shall continue to be affected as ordered by Gordon J. on February 14, 2023, except that on scheduled exchange days when the respondent takes the youngest child to day care, the applicant shall pick her up from the day care centre.
- The parties may, on their mutual written consent, depart from these parenting time and exchange provisions.
- The respondent shall have sole decision-making responsibility for the children.
- The party exercising parenting with the children shall make day-to-day decisions affecting the children and emergency medical decisions during that parenting time.
- Where emergency medical care is required for one or more of the children while a party is exercising parenting time, that party shall promptly notify the other party of the emergency.
- On or before June 1 of each year, the parties shall each provide to the other a copy of their Notice of Assessment and T1 Tax Return for the previous year.
- The parties shall be divorced.
- The parties shall not use corporal punishment to discipline the children.
- Except in case of emergency, the parties shall communicate with each other by AppClose. All such communications shall be brief and child-focused. The parties shall endeavour to reply to each other within 24 hours, except in emergencies, in which case they shall reply as promptly as possible.
- The parties shall not make disparaging remarks respecting each other, nor will they allow others to make disparaging remarks about each other in the presence of the children.
- The parties will not discuss adult issues with the children.
- The party exercising parenting time will allow the children to communicate with the other party at least once daily if the children wish to do so. Such communication shall be initiated by the child.
- Both parties may make inquiries and be given information by the children’s teachers, school officials, doctors, dentists, health care providers, counsellors or other person involved with the children without the consent of the other parent. If necessary, the parties will execute any additional documents required for the other parent to obtain such information.
- The respondent shall keep custody of the children’s official documents including but not limited to passports, health cards, birth certificates and immunization records. The respondent shall provide copies of all such documents to the applicant. Where the respondent requires an original document for a purpose related to one or more of the children, the applicant will provide the original document to the respondent, which the respondent will return to the respondent promptly when it is no longer required for that purpose.
- Any of the children’s official documents now in the possession of the applicant will be delivered by the applicant to the respondent or her counsel within seven days of the release of this judgment.
- The parties shall cooperate to obtain passports for the children.
- Where either party plans travel with the children outside of Canada, the travelling party shall: a. give the other party a detailed itinerary at least fourteen days before the planned departure date, including the name of the airline or other mode of transportation to be used, flight times, name, address and telephone number of accommodation, and details for contacting the children during the period of travel. b. obtain a travel authorization from the other party by providing the other party with a travel consent form authorizing the children to travel, for the other party to execute and have notarized at the travelling party’s expense. Consent to travel shall not be unreasonably withheld.
- The parties’ separation agreement shall continue to have effect except insofar as it is inconsistent with the orders made here.
7. Costs
230The parties are encouraged to agree upon appropriate costs. If the parties cannot agree on costs, they may make brief written submissions to me by email to my judicial assistant at mona.goodwin@ontario.ca and to Kitchener.SCJJA@ontario.ca. The respondent may file and serve written cost submissions by January 5, 2024. The applicant’s brief written response will be served and filed within ten days of the service of the respondent’s submissions. The respondent’s reply submissions, if any, will be served and filed within seven days of the service of the applicant’s costs submissions.
I.R. Smith J.
Released: December 14, 2023