COURT FILE NO.: FC-22-00000256-0000 DATE: 20240226

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

KATELYN SINCLAIR – and – BENJAMIN FERRIS SCOTT QUADE

Counsel: Lennox O. Picart, for the Applicant Self Represented

HEARD: July 17 - 21, 2023

N. EDMUNDSON J.

REASONS FOR DECISION

Overview

[1] The applicant, Katelyn Sinclair, is the mother and the respondent, Benjamin Ferris Scott Quade, is the father of River Alexandra Quade who was born on July 4, 2021.

[2] The applicant, Katelyn Sinclair (“the mother”), seeks an order for:

a. Sole decision-making b. Primary residence with her c. Parenting time for the father every second weekend from Friday after daycare until Monday morning according to her application; at trial her position was that the father should have parenting time on the first three weekends of the month and an overnight on the Wednesday of the second and fourth week of the month. d. Child support e. a restraining order

[3] The respondent, Benjamin Quade (the”father”), seeks an order for;

a. joint decision-making b. a continuation of the shared parenting time that has been in place since October 7, 2022 c. child support d. a determination of where River shall attend school which she is scheduled to start in September 2025

[4] For reasons set out below, I am making a final parenting order. I dismiss the claim for a restraining order and find that I have insufficient information before me to determine child support. I am making a temporary order for the parties to provide evidence so that I may address child support where there is shared parenting time as required in s.9 of the Ontario Child Support Guidelines. My decision about parenting is summarized as follows:

a. there shall be a parallel decision-making order. The parents shall consult and seek the input of the other for non-urgent matters at least 14 days in advance of the need or deadline for a decision. In the event that the parents do not agree then i. the mother shall have decision-making authority for medical/dental issues ii. the father shall have decision-making authority for education, including choice of school, and for extra-curricular activities b. River’s primary place of residence shall be with her father c. River shall continue at the same daycare which is the Kinder Learning Centre in Belleville until she starts school. d. The parents shall communicate via a parenting application. e. Parenting time shall be on a 2/2/5/5 schedule for River as follows: i. with her father from Monday at 9am until Wednesday at 9am ii. with her mother from Wednesday at 9am until Friday at 9am iii. with each parent on alternating Fridays at 9am until Monday at 9am. The schedule for each parent’s weekend should carry on from the temporary order without interruption unless the parents agree on a change. f. Exchanges shall occur at the daycare or school. On days where the daycare is closed or there is no school, the exchange shall be at the home of the paternal grandmother, Janice Quade, at 9am or such other time as agreed in advance in writing between the parents and Janice Quade. g. The parents themselves or the paternal grandmother, Janice Quade, shall attend at exchanges with no other person attending unless agreed in writing in advance. Specifically, at no time shall Cherisse Maheux or Mike Maracle attend at exchanges and Ms. Sinclair shall not communicate with Mr. Quade though either of them.

[5] The mother initiated this court case. The father brought a motion which Justice Tellier dealt with in chambers on September 6, 2022 and found, based on the materials from both parties, that there was urgency. She scheduled an early Case Conference to occur on September 8, 2022.

[6] On September 8, 2022 the father had not seen River since June 27, 2022. The mother had unilaterally enrolled River in daycare without seeking the father’s prior consent or notifying him. A without prejudice consent order was made until the return of the motion for parenting time could be heard on October 7, 2022. The father was to have specified parenting time in the home of his grandmother in Belleville under her supervision. The father was to be added at the daycare as a parent to call in the event of emergency and only the parents would be able to pick up River from daycare unless otherwise agreed.

[7] On October 7, 2022 the parents’ motions for parenting time were heard by Justice Tellier, the case management Judge, who made an order as follows:

1 The Applicant-mother is Katelyn Sinclair ("mother"). The Respondent is Benjamin Ferris Scott Quade ("father"). Collectively they are the "parents".

2 The child is River Alexandra Quade born July 4, 2021 ("River").

3 River's family doctor shall be Graham Burke (613-476-5766), located in Picton, Ontario.

Decision-Making Responsibility:

4 The mother and the father shall have joint decision-making responsibility regarding the general wellbeing of River, including her health, culture, language, religion and spirituality, and extra-curricular activities.

5 If there is a major medical emergency involving River, the parent who River is with shall notify the other parent as soon as possible of such emergency. Either parent may make emergency decisions affecting River if, after reasonable efforts, the other parent cannot be reached in a timely fashion to consult about the decision.

6 Either parent shall be entitled, without the authorization or consent of the other parent, to make direct inquiries, consult with and be given information about River by her day care providers, teachers, school officials, doctors, dentists, healthcare providers, or other third-party service providers involved with River.

7 The mother shall immediately provide the father with the names and contact information in writing of third party professionals who are aiding River.

8 River shall continue to attend the Kinder Learning Centre on Millennium Parkway, Belleville ("daycare") shall be the exchange site while River attends daycare, whenever possible.

Parenting Schedule

9 Commencing October 10, 2022, River shall be in a shared parenting arrangement on a 2-2-3 rotation. as below as follows:

(a) Week one: River shall be in her father's care from Monday PM after daycare until Wednesday AM, then in her mother's care from after daycare on Wednesday PM until Friday AM, followed by being in the father's care from Friday PM until Monday AM. (b) Week two: River shall be in her mother's care from Monday PM after day care until Wednesday AM, then in the father's care from after daycare Wednesday PM until Friday AM; followed by being in the mother's care from Friday PM until Monday AM.

10 The parents shall be the persons picking up and taking River to the daycare, unless otherwise agreed in writing.

11 The child exchanges shall occur at the daycare or, when River is not on daycare, at the Tim Hortons at the corner of Millennium Parkway and Highway 62, Belleville.

12 The parents shall use the Hastings and Prince Edward District School Board calendar to determine the commencement and completion of River's holiday schedule.

13 The mother and father shall share the Christmas holidays evenly with River. The holiday schedule overrides the regular schedule in the event of a conflict.

OTHER

14 The mother shall not relocate from Belleville without further order of the court.

15 The mother's counsel shall provide the father with certified copies of River's health card and birth certificate within 15 days.

16 Each party shall bear their own costs

[8] On January 18, 2023, the father brought a motion seeking to have River placed in his primary care for a short period of time to permit him to ensure that River became free of headlice. The issue of the head lice had been resolved but an order was made that the father’s mother, Janice Quade, would be added to the approved list of people who could attend the daycare. The mother originally consented to the addition of Ms. Quade but then retracted her consent “essentially in retaliation for the father sending her lawyer letters which creates conflict and additional fees”. The order was also made for the parents to select and use a parenting app, to communicate about ongoing issues regarding the joint parenting, provided that form of communication did not violate the father’s release conditions.

[9] Neither party was to bring a motion before the court until the next event.

[10] A settlement conference was conducted on March 1, 2023. Justice Tellier made the following amendments to the existing order:

1. cell communication between the parties shall be between Janice Quade or via a parent[ing] app
2. if exchanges at the daycare cannot take place then the exchange shall take place at the police station
3. the operative parenting order should be observed
4. if the child is ill, the parent responsible for her care must pick her up even if it means losing work
5. neither parent shall take videos of the other parent
6. the respondent father shall not communicate with Cherisse Maheux

[11] A trial scheduling conference was held before me on April 24, 2023 with this matter to proceed to trial commencing July 17, 2023.

[12] In the week prior to trial, urgent motions were brought by both parties who had both engaged in withholding of the child, River. The father withheld River for one day, on July 5, 2023, returning her to daycare on July 6, 2023. He was alleging drug use by the mother. The mother picked her up at daycare on July 6, 2023, and withheld her until July 14, 2023, when I ordered compensatory time for the father and the resumption of the 2-2-3 schedule in the existing order.

Events leading up to this court application

[13] The parents moved in together in September 2020. Ms. Sinclair moved into the residence where Mr. Quade had been living with a roommate. Ms. Sinclair had a difficult pregnancy and Mr. Quade stopped working to look after her and, following the birth of River Alexandra Quade on July 4, 2021 when Ms. Sinclair returned to work at Proctor and Gamble in Belleville, he was the stay at home parent. He states that as he was not employed, when his roommate moved out, the lease was put into Ms. Sinclair’s name. The parties seem to agree on that point.

[14] Both parents have other children.

[15] Ms Sinclair has two children, Jasper and Jaylynn who were 11 and 8 at the time of trial and who live with their father in Picton, Ontario. There is a court order from 2019 granting the parents joint decision-making with Ms. Sinclair having parenting time every second weekend. Mr. Quade assisted with the parenting of those children when the parties were together and she was working. Ms. Sinclair does not pay child support.

[16] Mr. Quade has a child, Remington, who was 4 at the time of trial and who lives with the child’s mother on the Tyendinaga Mohawk Territory. There is an order dated July 7, 2023, providing for shared decision-making. There is also a final order for the father to have Remington with him for the first three weekends of each month, a schedule that has been in place for some time. He pays child support for Remington.

[17] Both parents have substance abuse issues and both make frequent allegations about the other’s substance use.

[18] Ms. Sinclair testified that in 2018, after she separated from the father of her two older children, she became involved with a man who introduced her to crystal methamphetamine and cocaine which she used repeatedly throughout 2019. After being assaulted by him on December 1, 2019, she reached out to family in Nova Scotia and moved there on December 7, 2019. She remained there for ten months and says that she engaged in counseling and therapy. She returned to Belleville and moved in with Mr. Quade on September 30, 2020, and she quickly became pregnant with River.

[19] Mr. Quade has a history with alcohol. With the mother’s support he addressed this and is involved with AA. His AA sponsor testified on his behalf.

[20] While Ms. Sinclair and Mr. Quade were living together, Mr. Quade was involved in a court matter with Kaylea Smart, the mother of his son, Remington. Mr. Quade credits Ms. Sinclair with assisting him in that litigation, in providing evidence that he was a good father and helping him draft documents and obtain parenting time. He credits her with making the difference in ensuring that he had parenting time with his son. She also advised him on strategies to avoid paying child support although it is not clear whether this advice was solicited.

[21] The parents resided at 1 Railway Terrace in Belleville which was the home where the father lived with a roommate prior to the start of the relationship with the mother. The lease was in the name of the roommate. The mother moved in with the father. When the roommate moved out, the father was not employed but was working “cash jobs”. As the mother was the one with the full-time job the landlord agreed to put the lease in her name. Much was made of this by the mother in justification for later actions.

[22] The parties separated on June 24, 2022 following an incident which required police intervention but did not result in charges.

[23] On Friday, June 24, 2022 in the early hours of the morning the parents had an argument. The father testified to waking up to the mother tossing the baby to him followed by throwing a baby bottle which hit him in the head. The father left the home around 4 AM and walked towards his mother’s home. He testified that he realized Ms. Sinclair would be leaving for work at 6 AM so returned, also on foot, at 5:30 AM. Ms. Sinclair was there and was not going to work that day. The parties agreed that he would have River at 5 PM and return her on the Sunday at 7 PM. The father returned during the day to collect some belongings while the mother was out; it was suggested that he overturned a bed inside the home. The mother also alleges that he broke an urn containing a family member’s ashes.

[24] The mother did not drop off River at 5pm as agreed. The police report indicated that she was agitated and upset about the father returning to the home when she was not there.

[25] The father went to the home with his mother in her vehicle at 6pm to pick up River as she had not been dropped off. They each testified that they could hear River crying. Mr. Quade testified that after approximately five minutes of listening to her cry he went to the entrance of the home and observed River on the stairs or steps unattended. He picked her up. He said that he could see the mother sitting in the living room playing on her phone. He went outside with River and at that point the argument commenced about where River was to be. The mother called the police and they all agree that she was screaming that he was taking the child. Police attended.

[26] The police report which was filed as an exhibit indicates that police spoke to both parties and that the father had River in his arms. Police contacted the Highland Shores Children’s Aid Society who had been involved with the family and were advised by worker Candace Wylde that there were no concerns with the father having the child and that there were also no concerns due to the father generally being a stay-at-home father and of the mother having been comfortable with the father being alone with the child prior to that day’s incident.

[27] The police report also indicates that there were no grounds for criminal charges as a result of the incident earlier in the day. They noted that the father had a colour of right to the home and was not breaking and entering and did not do any damage to property. The father had been living in that home.

[28] Also according to the police report the father was to have the child River with him until the following Monday.

[29] The father returned the child on Monday when there was another argument. The mother agreed that he would have River again on Wednesday. That did not happen.

[30] I find that the mother withheld River from the father for approximately 10 weeks and that he did not see River until there was a temporary court order on September 8, 2022. The mother also enrolled River in daycare without seeking the father’s prior consent or notifying him. Both of these actions were despite the fact that the father was River’s primary caregiver prior to the separation on June 24, 2022.

Best Interests of the Child

[31] In making a parenting order for River, whether for decision-making responsibility or parenting time, I must base my decision on what is in her best interests as set out in and considering the criteria in s. 24 of the Children’s Law Reform Act (CLRA).

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.

Factors

(3) Factors related to the circumstances of a child include,

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; (d) the history of care of the child; (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (g) any plans for the child’s care; (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child; (j) any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and (k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

Factors relating to family violence

(4) In considering the impact of any family violence under clause (3) (j), the court shall take into account,

(a) the nature, seriousness and frequency of the family violence and when it occurred; (b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (d) the physical, emotional and psychological harm or risk of harm to the child; (e) any compromise to the safety of the child or other family member; (f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person’s ability to care for and meet the needs of the child; and (h) any other relevant factor. 2020, c. 25, Sched. 1, s. 6.

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person, unless the conduct is relevant to the exercise of the person’s decision-making responsibility, parenting time or contact with respect to the child. 2020, c. 25, Sched. 1, s. 6.

Allocation of parenting time

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. 2020, c. 25, Sched. 1, s. 6.

Application to related orders

(7) This section applies with respect to interim parenting orders and contact orders, and to variations of parenting orders and contact orders or interim parenting orders and contact orders. 2020, c. 25, Sched. 1, s. 6.

[32] The child’s best interests are not merely “paramount”, they are the only consideration in this analysis and they must be ascertained from the perspective of the child, not the parents: Gordon v. Goertz, [1996] 2 S.C.R. 27 at para. 28; Mattina v. Mattina, 2018 ONCA 641.

[33] No one factor in the definition of a child’s best interests is superior to the others. The factors must be considered within the context of each case. Some will be relevant, some will not. The factors listed in s.24(3) are also not exhaustive. White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. The focus is on the child’s perspective.

[34] Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child. Young v. Young, [1993] 4 S.C.R. 3; E.M.B. v. M.F.B., 2021 ONSC 4264 (SCJ); K.M. v. J.R., 2022 ONSC 111.

[35] A young child with attachments to both parents needs sufficient contact with both, without prolonged separations to maintain a meaningful and close relationship with them. Wilson v. Wilson, 2015 ONSC 479. Bonding, attachment and stability in the lives of a young child are particularly important. Barnes v. Parks. It is essential to consider the child, her needs and her family holistically. Phillips v. Phillips, 2021 ONSC 2480.

[36] In assessing what is in a child’s best interests the court should also consider the ability of each parent to follow a court order.

Best Interests Test and Family Violence

[37] One of the factors to be considered under the CLRA is s.24(3)(j) regarding the presence of family violence. The CLRA defines family violence in s.18(1) as:

any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct;

[38] If the court finds that there has been family violence then s 24(4) directs the court to take into account the factors set out in that subsection when considering the impact of that family violence.

[39] Exposure to conflict has been called the “single most damaging factor for children in the face of divorce”: per Backhouse J., in Graham v. Bruto (S.C.), at para. 65, aff’d 2008 ONCA 260; Mattina v. Mattina, 2018 ONCA 641.

[40] The Supreme Court of Canada has specifically addressed the issue of family violence in the context of the best interests analysis under the Divorce Act, the provisions of which are similar to the CLRA. Barendregt v. Grebliunis, 2022 SCC 22. Findings of family violence are a critical consideration in the best interests analysis. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives and can result from direct or indirect exposure to domestic conflicts.

[41] The Court must objectively assess the frequency, severity and recency of the incidents of family violence in weighing its impact upon a relationship. Human relationships are not easy, and the court must be very cautious, and must take a broad and comparative approach, in assessing the impact of family violence on post-separation parenting. Family violence, and its impact, is thus best assessed by the placement of each individual case on a spectrum that accounts for frequency, severity and recency. Abaza v. Adam, 2023 ONSC 1776.

[42] Children may experience family violence in a variety of ways; they may be the direct victims of family violence, they may be directly exposed to family violence by one family member towards another or may experience the aftermath by observing injuries, seeing police and CAS investigations as well as observing the emotional turmoil that follows. S.V.G. v. V.G., 2023 ONSC 3206.

[43] Violence may not be physical but may be emotional or psychological. Denigrating the other parent in front of the children or within earshot meets the definition and can be devastating to the child.

[44] Parents should be encouraged to resolve disputes outside the court when not affected by family violence or a power imbalance. Colucci v. Colucci, 2021 SCC 24. It is therefore essential that the court consider whether a co-operative parenting arrangement is appropriate where there has been family violence.

[45] The court also must remain alive to the possibility that some allegations are fabricated or exaggerated. Ignoring such a possibility poses a serious threat to the furtherance of justice in cases where family violence claims are advanced; the court must ensure that the claims are credible and that they are not being advanced to obtain a litigation advantage. S.V.G. v. V.G., 2023 ONSC 3206.

[46] Unwarranted calls to authorities, such as the police and CAS can be psychological abuse as can surreptitious recordings, insults, unwarranted criticism about parenting and demanding to know whereabouts. K.M. v. J.R., 2022 ONSC 111; Dayboll v. Binag, 2022 ONSC 6510.

[47] There is no doubt that there has been conflict in the parents’ relationship. Both parents are volatile. I find that there has been family violence and that both parties have behaved in ways that meet the definition of family violence.

[48] The relationship dynamics are the result of the actions of both parents. The mother has disregarded court orders and withheld the child from the father for ten weeks thereby setting the tone for the balance of the litigation. She disregarded Justice Tellier’s order that there was to be no video recording of exchanges. In her oral testimony she stated that she stopped recording the exchanges for use in family court but kept filming for use in the criminal proceedings. She clearly knew that she wasn’t to do this and not only kept doing it but also allowed the person accompanying her to do so. The mother is not innocent and has not only contributed to the conflict but has at times guaranteed it.

[49] The involvement of Ms. Maheux who testified on behalf of the mother, was a contributing factor to the conflict between the parents. She was extremely protective of the mother and seemed to view herself as a bit of a white knight. She attended some access exchanges and video recorded the exchanges despite knowing that there was an order that prohibited that behaviour. She was very aggressive towards the father while testifying and seemed to have little insight into how her behaviour was impacting the conflict and the child. Rather than be a calming influence where she might have helped to deflect conflict, she in fact encouraged it. At no time should Ms. Maheux be present for any exchange of River in the future.

[50] The mother submitted that the father had been on her property despite having a condition preventing him from doing that in or around April 28, 2023. She based that supposition in part on the fact that he had sent messages to her stating that he had seen the pet bird that was in the mother’s home and that he was concerned that it was at the child’s eye level. In one of his comments there was a reference to Cherisse Maheux’s FaceBook; she testified that those pictures were ones that had been posted on Facebook.

[51] The father has been criminally charged and pled guilty on March 17, 2023, to a charge of criminal harassment, mischief and a fail to comply from February 2023. A transcript of his sentencing was entered into evidence. He was sentenced to time served being two days of pre-sentence custody and to 12 months’ probation. Part of the factual basis supporting the conviction was an incident at a parenting time exchange which the mother and her friend were videorecording. While the father must bear responsibility for his own actions, I am concerned that the mother was in breach of a family court order barring video recording at exchanges and that she then used that recording to support criminal charges. I am concerned that there was some level of orchestration which then allowed the mother to seek an advantage in the family litigation. The transcript of the guilty plea also includes statements that the father was pleading guilty to avoid the restrictions of the bail conditions as there was an order in place that would allow him to resume his parenting time once those release conditions were no longer in place. The sentence included a term that there was to be no contact between the father and mother except in accordance with a family court order. He had no prior convictions.

[52] The father is reactive. He sees himself as the protector of his child and is responsible for his choices. He is loud, he says that he suffers from PTSD from a violent attack that saw him hospitalized, has a strong sense of right and wrong, is anti-authoritarian, credible on most things but not all. He knows when he should not react and deflects the blame to others or justifies his actions by referring to his dislike for lying or his need to prove that they are lying.

[53] The mother is jittery, anxious and also acts in ways that are volatile. She is also strategic. She supported the father in the court proceedings over his son, Remington, and he attributes part of his success in being able to parent Remington to her assistance. As he sees it, once they separated she changed her mind about him being a good dad and in addition withheld River when he had been the primary caregiver.

[54] The mother acknowledges cutting up the father’s marihuana plants and leaving them sprinkled over some of his belongings. She also disposed of items of his property at a time when he was trying to solicit the help of the police to pick up his belongings.

[55] They have both called the police or CAS on the other causing the child to be exposed to those investigations.

[56] I must also consider what steps have been taken by the person who has engaged in family violence to prevent further family violence from occurring and to improve their ability to parent the child. CLRA s. 24(4)(g). The father testified that he was on the waiting list for the PAR program as part of his probation. He has also been attending men’s anger management at the Enrichment center and which was not court ordered. He was able to speak of this in his testimony and appeared to have some insight into his behaviour and the negative impact on his child. As of the date of trial it had been five months since his last breach charge.

[57] I find that there has been family violence and that both parents have participated in that family violence. I have considered the family violence issues and the conflict between the parties. I find that those issues and concerns can be addressed by the terms of the parenting order which I will make.

[58] The mother also sought a restraining order against the father. A restraining order may be made under s.35 of the CLRA and s.46 of the Family Law Act. The applicant must satisfy the court that she has reasonable grounds to fear for his or her own safety or the safety of any child in his or her lawful custody. She has not done so. For the reasons set out above regarding the mother’s part in the family violence, the court is not prepared to make such an order. In addition, the terms of the parenting order which I am making address the family violence.

Decision-making

[59] The Children’s Law Reform Act (CLRA) defines decision-making responsibility in s.18(1) as:

responsibility for making significant decisions about a child’s well-being, including with respect to,

(a) health, (b) education, (c) culture, language, religion and spirituality, and (d) significant extra-curricular activities;

S.20(4) of the CLRA states:

(4) If the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other, the right of the other to exercise the entitlement to decision-making responsibility with respect to the child, but not the entitlement to parenting time, is suspended until a separation agreement or order provides otherwise. 2020, c. 25, Sched. 1, s. 2.

[60] In deciding on the appropriate decision-making responsibility regime, the court is required to consider all possible frameworks, and not simply those proposed by the parties. The goal in crafting an appropriate decision-making regime is to promote the child’s “right to grow up within a parenting regime that is co-operative and effective, where decisions are made in a child-focused way and with the least amount of acrimony and stress.” McBennett v. Danis, 2021 ONSC 3610; RG v. JG, 2022 ONSC 1678; KM v. JR, 2022 ONSC 111.

[61] The Ontario Court of Appeal Kaplanis v. Kaplanis has set out parameters for joint decision-making orders:

1. There must be evidence of historical communication between the parents and appropriate communication between them.
2. It can’t be ordered in the hope that it will improve their communication
3. Just because both parents are fit does not mean that joint decision-making should be ordered
4. The fact that one parent professes an inability to communicate does not preclude an order for joint decision-making.
5. No matter how detailed the order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.
6. The younger the child, the more important communication is.

[62] The Court of Appeal has upheld joint decision-making or parallel parenting in the absence of reasonably effective communication between the parents where it has been necessary to sustain a child’s contact with a parent where conflict is present. Andrade v. Kennelly, 2007 ONCA 898. Decision-making authority helps ensure that a parent’s relationship with their child is not marginalized. Rigillo v. Rigillo, 2019 ONCA 548 and 2019 ONCA 647; Khurmi v. Sidhu, 2022 ONSC 6413.

[63] Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of one, that parent should not be able to use the conflict as justification to oppose a joint — or shared — parenting order. To do so allows an obdurate parent to engineer a result in his or her favour. Courts will order joint decision-making where such an order is considered necessary to preserve the balance of power between the parties.

[64] It would be unrealistic to expect that communication between separated parties will be easy, comfortable or free of conflict. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. It is important to look at the parenting relationship prior to the separation to consider whether the parents may be able to return to this after the litigation is over and when they have a defined order. The quality of each party’s past parenting and decision-making, both during the parties’ relationship and post-separation, is a critical factor in determining whether an order for joint decision-making in some or all areas is appropriate.

[65] In assessing any decision-making order the court must consider whether the terms of a particular order are:

a) more or less likely to de-escalate or inflame the parents' conflict; b) more or less likely to expose the child to parental conflict; and, c) Whether a parent is seeking the order as a mechanism to inappropriately control the other parent.

[66] A parallel parenting order in which each parent is allocated his or her exclusive sphere of decision-making still requires some ability of the parents to communicate in the face of inevitable gaps in even the most detailed order. Montforts v. Clarke, 2019 ONCA 723.

[67] In V.K. v. T.S., 2020 ONSC 4305, Justice Deborah Chappel conducted a thorough review of the case law and set out in paragraph 96 the following factors to consider when determining whether to make a parallel-parenting order:

a) The strength of the parties’ ties to the child, and the general level of involvement of each parent in the child’s parenting and life. In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child’s life on all levels. b) The relative parenting abilities of each parent, and their capacity to make decisions that are in the child’s best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered. c) Evidence of alienation by one parent. If the alienating parent is an otherwise loving, attentive, involved, competent and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party’s role in the child’s life. On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child’s best interests, a sole custody order may be more appropriate. d) Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order. e) The extent to which each parent is able to place the needs of the child above their own needs and interests. If one of the parties is unable to focus on the child’s needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child’s day to day needs. f) The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting.

[68] The court has several options McBennett v. Danis, 2021 ONSC 3610:

1. It may grant sole decision-making responsibility in all areas to one spouse.
2. It may grant joint decision-making responsibility in all areas to both spouses.
3. It may grant joint decision-making responsibility to both spouses in one or more areas of responsibility but give sole decision-making authority in the other areas to one spouse or allocate those other areas of decision-making between the spouses.
4. Alternatively, it may allocate each party sole decision-making responsibility in separate specified areas, with no provision for joint decision-making in any areas.
5. Another option open to the court is to require the parties to engage in all reasonable efforts to make some or all significant decisions jointly, but to designate which party has final say in each area of decision-making in the event of disagreement.

[69] There is also a sixth option of parallel parenting, assigning responsibility for decisions in certain areas to one parent, with the opportunity for input within a certain time frame.

[70] At no point in time did the father consent or acquiesce to relinquish his decision-making responsibility for River. Despite the fact that the father was the primary caregiver for the child prior to the separation, the mother withheld River from him for 10 weeks. She also unilaterally registered River in daycare without consultation or notice to the father. She actively supported him in obtaining unsupervised time with his older child, Remington, while the parties were together but acknowledged that after the separation she had communicated with Remington’s mother to act against the father. The mother withheld the child again for eight days immediately prior to the trial.

[71] I find that if the mother has sole decision-making responsibility it is very likely that she will use that to marginalize the father as a parent and will exclude him from participation in important decisions in River’s life. She has already demonstrated that by making major decisions for River without consultation or consent. While the mother clearly finds it difficult to communicate with the father she cannot simply refuse to communicate and then rely upon that to justify a sole decision-making responsibility order. As I have already stated both parents have contributed to the conflict. I find that a joint decision-making responsibility is not in the best interests of River in light of the conflict between the parents.

[72] I find that the father is more likely to seek out input from the mother in making decisions for River’s education. Education and choice of school in particular are essential components of providing stability for a child. He shall have decision-making responsibility for River’s education and extra-curricular activities. It is in River’s best interests that her primary place of residence be with the father; he was the primary caregiver prior to the separation and it may be necessary to facilitate school registration.

[73] The mother shall have decision-making responsibility for River’s medical and dental care. At trial she testified that she had been the parent who took River to medical appointments. Under cross-examination she conceded that the father had been outside as only one parent could go into the appointment during Covid. Regardless of the reason she was the parent who went to the appointments and shall continue to manage those decisions for River.

[74] What do River and her parents need for stability? They need to know where she will be at what times, what her schedule is, and who is making decisions for which major areas of her life. I find that having a clear order is likely to de-escalate conflict which is in the best interests of River. The areas of decision-making for culture, language, religion and spirituality were not raised as issues that were in dispute.

Parenting time

[75] Prior to the separation on June 24, 2022 the father was the primary caregiver for River. Since October 7, 2022, when the parents’ motions for temporary parenting time and decision-making were heard, there has been a 2/2/3 shared parenting schedule in place.

[76] I have considered s. 24(6) of the CLRA which states that in allocating parenting time the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.

[77] I have considered whether it would be in River’s best interest for there to be fewer exchanges. The current 2/2/3 schedule allows her to have time with her siblings in each home (as they are there on weekends) as well as having frequent and consistent parenting time with each parent. It is also a schedule that appears to have worked well for River. The paternal grandmother who teaches in the early childhood education program testified that River is meeting all of her developmental milestones. It should be noted that she testified as a grandmother and not as an expert or professional in that field. She identified that as River gets older it is likely she will continue to show some of the same characteristics that she saw in her son as a child as she sees some of them now.

[78] The Children’s Aid Society worker, Crystal Smoke, also testified that she had no concerns about River’s day-to-day needs being met in either home. Additionally the director of the Kinder Learning Center, the daycare which River attends, also testified and had no concerns about River’s development.

[79] The father called other witnesses who testified to his parenting of River. The first was Kevin Norlock, his AA sponsor who has spent time with the father when he has had both of his children as well as when he has just River. He described a very loving and child focused relationship between the father and his children. Additionally, in her testimony the paternal grandmother also described a positive and healthy relationship between the father and River. I found Janice Quade to be a balanced and fair witness in her observations of both parents. She was focused on what is best for River and stated that she thought both parents need people to support them in their parenting. She consented to being involved in exchanges and offered to be an alternative caregiver for River regardless of which parent was responsible for her care.

[80] The father’s grandmother (River’s great-grandmother) also testified. She is highly protective of the father and clearly loves him. She would not hear a bad word about him. She did not provide any probative evidence.

[81] The mother called her friend Cherisse Maheux who may have been living in the mother’s home for a period of time or may have been spending significant time there. I did not find the mother to be very credible on the subject of who was spending time in her home. She was very defensive which may be the result of the father being extremely focused on the issue of who is now in the mother’s life although this was couched in terms of who his child is exposed to.

[82] Ms. Maheux’s evidence in chief was provided by way of affidavit. I reviewed that affidavit prior to counsel calling her as a witness and identified to him that there were significant issues with her affidavit including hearsay and statements about events of which Ms. Maheux had no direct knowledge and which appeared to simply be a restatement of the evidence of the mother. The mother’s counsel prepared a second affidavit which replaced the first one and was admitted as her evidence in chief.

[83] Cherisse Maheux testified that the mother was a good parent, in her opinion. It was clear however, that there were gaps in her knowledge about the mother’s life with River. For example she was not aware that Ms. Sinclair was in a dating relationship with Mike Maracle, until she was asked about it on the stand.

[84] I also did not find Ms. Maheux to be very credible. It was clear that she had antipathy towards the father and was quite aggressive in her statements to and about him. She seemed to be extremely protective of Ms. Sinclair and had participated in some of the behaviour that encouraged conflict between the parents. For example, when she attended parenting time exchanges she continued to video record them despite being aware of the existence of an order that directed that no video recordings would be made of exchanges. She seemed to think that because it wasn’t Ms. Sinclair doing it directly that would excuse her behaviour.

[85] The father has difficulty understanding the mother’s private life is just that, private. It is not up to him to police her behaviour or her relationships. Conversely the mother should ensure that she puts River’s safety and best interests first. The evidence is that, prior to the separation, she warned the father about spending time with Mike Maracle because of his substance use and criminal involvement. At the time of trial, she was in some form of relationship with Mike Maracle seemingly with no concerns about the impact on her sobriety or the exposure of River to what she had previously thought was a problematic lifestyle. She did not address this contradiction in her evidence.

[86] Both parents have substance abuse issues. The father’s issues have been with alcohol use and the mother’s issues have been with drugs. At one point during the trial I was concerned because the father was slurring his words. When I raised this with him he explained that he could not take more time off work, that he was working nights during the trial and was very tired. He was surprised at my question and confirmed that he had not been drinking. I found his explanation to be credible.

[87] The father’s AA sponsor, Kevin Norlock, testified. It is clear that the father reaches out to him when he is dealing with stresses or needs support. Both he and the father were open about when the father had slipped. This is a very important relationship for the father and it was clear that his sponsor provides him with advice and support in navigating relationships and the world around him.

[88] The mother testified about her drug use and was highly defensive when testifying about it, becoming quite agitated and crying. She self-reports that she has completed programming. There was no evidence of current programs.

[89] Parenting time should remain equal. I find that the father was the primary caregiver prior to the parties’ separation. It is important to consider the allocation of childcare responsibilities prior to the separation as well as the period of time leading up to the trial. They have had equal time since October 7, 2022. This schedule was originally proposed as it was consistent with the mother’s work shift schedule. The father works Monday to Friday for Ontario Truss and Wall. The mother works at Procter and Gamble. At trial the mother testified that her work schedule had changed to be straight weekdays, at her request, a few weeks before the trial. This may have been an effort to engineer the parenting time result that she wanted or it may not. However, the test is not what works best for the mother but what works best for the child. Shared time has worked well for River. She has frequent contact with each parent and the benefit of having them both involved in her everyday life. Importantly, in addition to having time alone with each parent, it also allows her to have time with her siblings in each home.

[90] I have also considered the requirement set out in s.24(6) of the CLRA that River should have as much time with each parent as is consistent with her best interests and find that shared parenting time is consistent with her best interests.

[91] River attends daycare at the Kinder Learning Centre in Belleville. The Director of the daycare testified that River seems to be doing well. There had been some issues about who was to pick up River in the event that she was sick or if the centre was closed because of bad weather. She noted that staff had to speak to both parents about the smell of marijuana on them.

[92] Child protection worker Crystal Smoke testified. The CAS records from Highland Shores Children’s Aid Society were also provided. They had had involvement following the events of the separation and found that on that call the mother had left River unattended. Subsequently the protection concerns had been the conflict situation. Ms. Smoke had no concerns about parenting in either home. She testified that while she had not visited the father with River in his home, she had consulted with collaterals and that there were no concerns with either parent, just with the exchanges.

[93] I have considered the possible schedules for shared parenting time. The current schedule is the 2/2/3 arrangement which River is used to as it has been in place for the past sixteen months. A schedule that decreases the number of exchanges and therefore opportunities for conflict would benefit River. I considered whether a week about schedule would work but I find that River is too young for that at this time. A 2/2/5/5 schedule, where the parents have the same two weekdays each week and alternate weekends results in fewer exchanges. It also has the added advantage of allowing the consistent scheduling of activities for the child on the same weeknights. It reduces the opportunities for conflict between the parents while also promoting consistency with extra-curricular activities. W. v. F., 2024 ONSC 265. River will know that on a Monday and Tuesday she is with her father and on a Wednesday and Thursday she is with her mother. It gives her predictability and consistency which is in the best interests of a child at her age and stage of development.

[94] Exchanges shall occur at the daycare, school or at the home of the paternal grandmother, Janice Quade. If River is sick or otherwise unable to attend school or daycare then the parent who is scheduled to have care of her is the parent who is responsible for arranging alternate care. The parents shall choose their own alternative caregivers and do not require the approval of the other parent.

[95] If either parent has a new partner living in the home then they are to provide the name of that person to the other parent. This is not an opportunity for either parent to think they have a right to approve or not approve of a person living in the home but each parent is entitled to know who else is living with their child.

[96] Neither parent is to post anything about the other parent on social media and is not to respond to the posts of others where the subject matter is the other parent.

Terms of Final Parenting Order

[97] I make the following final parenting order:

Decision-Making

1. Day to day decisions for River that are not about significant issues shall be made by the parent who is caring for River at the relevant time, in accordance with the parenting schedule set out below.

2. There shall be parallel decision-making responsibility. However, the parents shall consult and seek the input of the other for non-urgent matters at least 14 days in advance of the need or deadline for a decision. Areas of decision-making authority are assigned as follows: a. The mother shall have exclusive decision-making authority for medical/dental care. b. The father shall have exclusive decision-making authority for education, including choice of school, and for extra-curricular activities.

3. River’s primary place of residence shall be with the father. This does not alter the right of the parent to apply for the universal child benefit on a 50/50 basis.

4. River shall continue at the same daycare which is the Kinder Learning Centre in Belleville until she starts school.

5. River’s family doctor shall continue to be Dr. Graham Burke in Picton, Ontario.

6. Medical and health care appointments may be made on either parent’s time, with their consent. The parent who attends with River shall advise the other parent, via the parenting app, of any information received within 24 hours unless it is urgent in which case they shall do so immediately. This condition does not restrict the mother’s decision-making authority for health care.

7. The parents may both attend River’s school events but shall not engage in any discussion with each other and shall maintain a reasonable distance from each other. The parents shall ask to have separate meetings with teachers when those are necessary. If separate meetings are not available to them, then the father shall attend and shall advise the mother, via the parenting app, of the information received within 24 hours.

8. Extra-curricular activities should be chosen based on River’s interests and strengths, giving age-appropriate weight to her views and preferences. Activities may be scheduled on either parent’s time with their consent and each parent will support River’s involvement in the activity. Neither parent will attend the activity if it is not on that parent’s time except for tournaments or end of season events of significance to River.

9. If there is a major medical emergency involving River, the parent who has care of River shall notify the other parent as soon as possible. Either parent may make emergency decisions affecting River if, after reasonable efforts, the other parent cannot be reached in a timely fashion to consult about the decision.

10. Either parent shall be entitled to make direct enquiries and be given information about River’s health, education and general welfare from third parties professionally involved with River including, but not limited to, doctors, dentists, health care professionals, teachers, school officials, without the oral or written consent of the other parent.

11. The mother shall keep possession of River’s Health Card and social insurance card. The father shall keep possession of River’s birth certificate and passport, if one is obtained. Certified true copies of these documents shall be exchanged between the parents. Originals shall be provided to the other parent upon request.

Communication

12. The parents shall communicate via a parenting application. The mother shall choose two apps and present those to the father. He shall then choose the one that he prefers. They will use the app to communicate about matters relating to River only. The parents will check the app regularly (at least once a day) and will respond to non-urgent messages that require a response within 48 hours of receiving the message. They shall respond to urgent communications as soon as possible. Except in the case of an emergency, neither parent will send more than two messages a day.

13. Neither parent shall speak negatively, or allow any other person to speak negatively, about the other parent, their partners or family members, in the presence or within earshot of the child.

14. Both parents shall be polite and respectful when communicating with the other parent. Neither parent shall post anything about the other parent on social media and shall not respond to the posts of others where the subject matter is the other parent or their family members.

15. If either parent has another adult living in the home then they are to provide the name of that person to the other parent.

Parenting Time

16. Parenting time shall be on a 2/2/5/5 schedule for River who will be a. with her father each week from Monday at 9am until Wednesday at 9am b. with her mother each week from Wednesday at 9am until Friday at 9am c. with each parent on alternating Fridays at 9am until Monday at 9am. The schedule for each parent’s weekend should carry on from the temporary order without interruption unless the parents agree on a change.

17. River may have a Facetime call with either parent when she is in the other parent’s care as the parents agree in advance and in writing via the parenting app.

18. Exchanges shall occur at 9am on the exchange day at the daycare or school. On days where the daycare is closed or there is no school, the exchange shall be at the home of the paternal grandmother, Janice Quade, at 9am or such other time as agreed in advance in writing between the parents and Janice Quade.

19. Only the parents or the paternal grandmother, Janice Quade, shall attend at exchanges with no other person attending unless agreed in writing in advance. Specifically, at no time shall Cherisse Maheux or Mike Maracle attend at exchanges and the mother shall not communicate with the father through either of them.

20. If River is sick or otherwise unable to attend school or daycare then the parent who is scheduled to have care of her is the parent who is responsible for arranging alternate care if unable to care for personally. The parents shall choose their own alternative caregivers and do not require the approval of the other parent.

Holiday Schedule

21. The parents shall use the Hastings and Prince Edward District School Board Calendar to determine the start and end of River’s holiday schedule. River’s holiday schedule overrides the regular parenting schedule. It may be varied by written agreement of the parents.

22. Family Day: In even numbered years, River shall be with the father from Monday at 9am until Tuesday at 9am. In odd-numbered years River shall be with her mother for this period.

23. March break: the regular schedule shall remain in place.

24. Easter: In even-numbered years River shall be with the mother on Good Friday at 9am until Easter Sunday at noon and shall be with the father from Easter Sunday at noon until Tuesday at 9am. In odd-numbered years River shall be with the father on Good Friday at 9am until Easter Sunday at noon and will be with the mother from Easter Sunday at noon until Tuesday at 9am.

25. Mother’s Day: If River is not otherwise in her mother’s care, she shall spend this day with her mother from 9am on Sunday until 9am on Monday.

26. Father’s Day: If River is not otherwise in her father’s care, she shall spend this day with her father from 9am on Sunday until 9am on Monday.

27. Thanksgiving: In even-numbered years River shall be with the father from Friday at 9am until Sunday at noon when she shall be with her mother until Tuesday at 9am. In odd-numbered years River shall be with the mother from Friday at 9am until Sunday at noon when she shall be with her father until Tuesday at 9am.

28. Christmas: In even-numbered years River shall be with the father from 9am on December 24 until noon on December 25 when she shall be with the mother until 9am on December 27. In odd-numbered years River shall be with the mother from 9am on December 24 until noon on December 25 when she shall be with the father until 9am on December 27.

29. Summer vacation: Each parent shall be entitled to have one uninterrupted week with River in their care in July or August of each year. The mother shall have first choice in even-numbered years and shall give notice to the father via the parenting app on or before May 30th of her choice of dates. The father shall give notice to the mother via the parenting app of his choice of dates on or before June 15. The father shall have first choice in odd numbered years.

30. All other school or statutory holidays shall follow the regular parenting schedule.

Restraining order

[99] The mother’s claim for a restraining order against the father is dismissed for the reasons set out above.

Child Support and Temporary Order

[100] Both parents made a claim for child support for River and made submissions. However, there is insufficient evidence filed for a final determination of child support under s.9 of the Ontario Child Support Guidelines. As there is a final order for shared parenting time, the amount of any order for the support of River must be determined by taking into account:

(a) The amounts set out in the applicable tables for each of the parents; (b) The increased costs of the shared parenting time arrangement; and (c) The conditions, means, needs and other circumstances of each parent of any child for whom support is sought.

[101] Temporary order to issue:

1. The parties shall serve and file: a. their affidavits updating the court on factors relating to their current employment, income, costs of the shared parenting time arrangement and the conditions, means, needs and other circumstances that are relevant to i. the determination of child support under s.9 of the Ontario Child Support Guidelines, specifically the factors set out in s.9 (b) and (c) ii. s.7 expenses b. current financial statements including any T4s, final paystubs showing YTD income or Notices of Assessment, if received, for 2023. c. written submissions regarding the ongoing child support d. any submissions regarding s.7 expenses

2. The mother shall serve and file by March 15, 2024; the father shall serve and file by March 29, 2024; the mother may file any reply by April 5, 2024.

[102] The parties are encouraged to settle the issue of costs. If they are not able to settle the issue then each party may deliver written cost submissions not exceeding four pages double-spaced as well as any offers to settle. The mother shall deliver submissions on or before March 15, 2024. The father shall deliver his submissions on or before March 29, 2024. Any reply shall be delivered by April 5, 2024.

N. Edmundson J. Released: February 26, 2024

COURT FILE NO.: FC-22-00000256-0000 ONTARIO SUPERIOR COURT OF JUSTICE KATELYN SINCLAIR – and – BENJAMIN QUADE REASONS FOR DECISION EDMUNDSON J. Released: 2024-02-26