Court File and Parties
COURT FILE NO.: FC586/19-01 DATE: April 3, 2024
ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT
BETWEEN:
E.P. Baily Guslits, for the Applicant Applicant
- and -
D.P. Erin Burns, for the Respondent Respondent
HEARD: October 25, 26 and 27, 2023, February 12, 13, 14 and 15, 2024
TOBIN J.
Reasons for Judgment
Introduction
1The applicant (“mother”) asks that she be granted sole decision-making responsibility with respect to the parties’ two children and that they live primarily with her, in Toronto. The children are now eight and ten years old. The mother also asks for child support and limits on the communication and contact between her and the respondent (“father”).
2The father asks that he be granted sole decision-making responsibility with respect to the children and that they reside primarily in his care, in London. He also asks for child support.
3Both parties want to set aside the parenting and support provisions contained in a separation agreement they made.
4The parties also seek a divorce.
5This trial was conducted over seven days. The parties testified. Three relatives and one friend testified on behalf of the father. The Children’s Lawyer’s clinical assessor was cross-examined by both parties.
6The trial was adjourned after the first three days to allow time for the court to decide whether amicus curiae should be appointed. See E.P v D.P., 2023 ONSC 6112.
7The mother’s evidence was that she was a victim of the father’s family violence, including a sexual assault. When giving her evidence in chief about family violence, she was emotionally distraught. She was also self-represented. Having to cross-examine the father regarding this issue would likely cause upset for both parties. I was also concerned that trial efficiency and fairness would be adversely affected. However, during the period of the adjournment, the mother was able to retain counsel for the balance of the trial. Therefore, it was not necessary to appoint amicus curiae.
8The most significant issue in this case was parenting. Little time was spent on support or the other issues.
Credibility
9The parties gave different versions of events that occurred during the marriage and following their separation. The most significant differences related to evidence about family violence.
10Credibility has been put in issue. Therefore, the Court must consider the veracity and reliability of the evidence given in this case.
11Credibility has to do with a witness’s veracity, that is, their willingness to tell the truth as they believe it to be. Reliability has to do with the accuracy of the evidence given.
12A credibility assessment is made not in isolation but after a consideration of the totality of the evidence.
13The assessment of credibility is not a scientific process and involves a consideration of many relevant factors.
14The father cited Bodnaruk v. Bodnaruk, 2023 ONSC 4136, at para. 25, as guidance for the Court in assessing credibility. This case, a Hague Convention case decided on motion, held that a credibility assessment depends upon a consideration of a number of variables including coherence, common sense, logic, investment in outcome, and witness recall.
15The father argues that he gave his evidence in a straightforward, balanced, and consistent manner, even when his answers were not helpful to him. Accordingly, he submits, he should be considered as a credible witness.
16I agree that in many respects the father’s evidence was given in a measured and straightforward manner. However, there were some concerns with his evidence regarding family violence. He acknowledged that he took inappropriate actions against the mother out of his frustration with her. He blamed the mother for his actions, his victim. As well, he minimized his behaviour that was consistent with coercive and controlling behaviour.
17Like the father, the mother at times gave her evidence in a thoughtful and compelling manner. However, in other instances, she was vague about certain events and gave evidence that was confusing.
18In assessing the mother’s credibility, I take into account that when she gave her evidence in chief and was cross-examined, she did not have the benefit of counsel assisting her in preparing for, and guiding her through, her direct evidence. Ms. Guslits was retained and began representing the mother when she gave her reply evidence. [1]
19Also, in assessing credibility, I must take into account that there were serious allegations of family violence claimed by the mother to have been perpetrated upon her by the father.
20Counsel for the mother referred to V.K.G. v. I.G., 2023 ONSC 6329, with respect to credibility assessments when allegations of family violence are made. In this decision, the Court addressed the considerations involved in assessing the credibility and reliability of family violence allegations. These considerations were set out at paras. 120 to 123 as follows:
120As I discussed at length in M.A.B. v. M.G.C., assessing the credibility and reliability of family violence allegations is a challenging exercise that requires a solid appreciation of the overall context within which family violence occurs (see also Barendregt, at para. 183). This context includes the typical dynamics of violent relationships between family members, the impact of violence on the victims and their ability to disclose the violence, and other social, spiritual, economic and cultural considerations that may be preventing the victim from talking about the violence. Having regard for the complex social dynamics around family violence, the courts must resist assessing a claimant’s credibility against stereotypical notions of what a victim should have done in similar circumstances. The reason for this is that trauma can significantly affect a victim’s cognitive functioning and physiology in many ways, and therefore victims of family violence may not react or interact in ways that one may generally expect them to (R. v. Lavallee, [1990] 1 S.C.R. 852 (S.C.C.), at pp. 871-890; R. v. Naslund, 2022 ABCA 6 (C.A.), at para. 141; A. v. A., 2022 ONSC 1303 (S.C.J.), at para. 63; McLellan v. Birbilis, 2021 ONSC 7048 (S.C.J.), at para. 72, per Tellier J.).
121The social context considerations around family violence are such that the typical indicators of credibility in the litigation arena are unhelpful in some situations and may in fact lead to distorted and dangerous outcomes. For example, one traditional yardstick for assessing credibility is whether the witness can provide a clear, detailed and consistent version of the events in question, with a solid recollection of the chronology of those events. However, victims of family violence often suffer from significant trauma associated with the abuse, which may affect their ability to provide a detailed, consistent and accurate recollection and timeline of the events in question (K.K. v. M.M., 2021 ONSC 3975 (S.C.J.); aff’d 2022 ONCA 72 (C.A.)). In addition, as the Supreme Court of Canada emphasized in Barendregt, “family violence often takes place behind closed doors, and may lack corroborating evidence” (at para. 144; see also V.M.W. v. J.Mc.-M., 2021 ONCJ 441 (O.C.J.), at para. 167, per Zisman J.; W.A.C. v. C.V.F., 2022 ONSC 2539 (S.C.J.), at para. 396, per Finlayson J.). Furthermore, there may not be evidence of prior consistent disclosures of family violence to rebut claims of recent fabrication, as there are many reasons why victims of family violence may not disclose the violence (V.M.W. v. J.Mc.-M., at para. 167; W.A.C. v. C.V.F., at para. 396).
122Notwithstanding these challenges in assessing the credibility of family violence claims, and the need for caution in relying on traditional credibility indicators, courts must remain cognizant of the reality that some allegations are in fact fabricated or exaggerated. Being closed-minded to these possibilities poses an equally serious threat to the furtherance of justice in cases where family violence claims are advanced, and the courts must therefore meticulously assess the evidence in its totality to ensure that family violence allegations are credible and are not being maliciously advanced to obtain a litigation advantage (Wilson v. Sinclair, 2022 ONSC 2154 (S.C.J.), per Fryer J.; W.A.C. v. C.V.F., at para. 397; Bandyopadhyay v. Chakraborty, 2021 ONSC 5943 (S.C.J.); Kinsella v. Mills, 2020 ONSC 4786 (S.CJ.); A.E. v. A.E., at paras. 276-281; Lee v. Eckenwiller, 2021 ONSC 6519 (S.C.J.), at paras. 27-29; M.A.B. v. M.G.C.; S.V.G. v. V.G.).
123The fact that there have been criminal investigations and charges related to allegations of family violence, and the outcome of those charges, may be relevant in addressing the family violence claims in Family Law proceedings, but they will not be determinative of whether the violence occurred (Batsinda v. Batsinda, 2013 ONSC 7869 (S.C.J.), at para. 41; Matthew v. Barazmi, 2021 ONSC 7240 (S.C.J.); M.A.B. v. M.G.C., at para. 181). By the same token, the fact that criminal charges have been withdrawn is not determinative, having regard for the lower standard of proof in Family Law proceedings as compared to criminal prosecutions.
21These considerations are relevant to the assessment of the credibility and reliability of family violence allegations made in this case.
22In summary, there are strengths and weaknesses in the evidence of both parties. Findings of fact necessary for the determination of the issues in this case will be considered individually. This is not a case where, if there is conflict in the evidence, one party’s evidence would be preferred over the evidence of the other.
Background Facts
The Parties
23The mother is 36 years old. She lives in Toronto with the parties’ two children. She is pursuing a BA in professional human services. As well, she teaches on a part-time basis.
24The father is 37 years old. He lives in London. The father is engaged in electrical and HVAC maintenance. As well, he works on a part-time basis as an instructor at Fanshawe College.
25After dating for approximately three years, the parties married on July 5, 2008 and then began living together in London.
The Children
26Their first child, [A.P.], was born […] 2014. On […] 2015, their second child, [T.P.], was born.
27While the parties cohabited, it was the mother who was the children’s primary caregiver. The father was the primary income earner.
28In the early years of the marriage, the mother’s evidence was that she experienced family violence carried out by the father. The father acknowledged three incidents of family violence: upending furniture, putting a hole in a door, and putting a hole in a wall. Police were called to the parties’ home on occasion as a result of the concern of neighbours. In their respective oral evidence, both parties stated that they argued a lot.
29The mother described the father’s violence as being in the nature of coercive control. This type of behaviour continued throughout the relationship, according to her. This is denied by the father.
30The parties moved a number of times before they purchased a home in 2012. The mother’s evidence was that the moves were as a result of ongoing family violence. It attracted the attention and disapprobation of neighbours. The father’s evidence was that the moves were to less expensive premises so that they could save for a house.
The Separation
31Problems with the relationship continued. Eventually, the mother decided that she wanted to separate.
32On November 6, 2017, the mother’s birthday, she told the father that she wanted to separate.
33The parties have agreed that they did separate on December 24, 2017.
34In June 2018, the parties sold the matrimonial home.
Post-Separation Events
35From July 2018 until July 2019, the mother lived with the children on Jalna Boulevard, in London.
36On May 5, 2019, the parties entered into a separation agreement made without the assistance of counsel. The purpose of making the agreement was to allow them to get a divorce. In this agreement, they wrote that it was in the best interests of the children that they share joint legal custody of the children. They also agreed that the children would live primarily with the mother. It was further agreed that the father’s parenting time would occur Wednesdays, Thursdays, and on alternate weekends. In essence, this was a 2-2-3 parenting schedule. As for support under the agreement, the father was not obliged to pay the table amount of child support to the mother but would pay spousal support of $1,150 per month.
37The mother claimed that she was coerced to agree with certain terms with which she did not agree. Though it was not the agreement she wanted, she wanted to move forward. The father denies any coercion in making the agreement.
38On May 21, 2019, the father started an application for divorce without any claim for corollary relief. The divorce has not yet been granted. On December 16, 2022, Justice Henderson stayed the granting of the divorce until this case was concluded. [2] By order of Justice Korpan dated May 18, 2023, the father’s divorce application (586/19) was combined with the mother’s application for relief (586/19-01), and it was ordered that they be heard together.
39During the summer of 2019, the mother and children moved from Jalna Boulevard to Roundhill Court, London.
The Mother Moves to Toronto with the Children
40For the summer of 2020, the parties agreed that the children would be in the care of the mother for the month of July and in the care of the father for the month of August.
41Sometime in July 2020, there was a break-in at the mother’s residence. Out of concern for the children, the mother asked—and the father agreed—to pick up the children and keep them overnight while the police were called to investigate.
42The mother’s home was broken into a second time, in August 2020. The children were then in the father’s care. This second break-in occurred approximately two or three weeks after the first one.
43That August, following the second break-in, the mother moved to Toronto. Her goal was to keep herself and the children safe.
44When the mother and children moved to Toronto, there was no change in the parenting schedule. The 2-2-3 schedule continued. The mother transported the children for the father’s parenting time and the children continued their enrolment and attendance in school in London. During the pandemic school year, the children attended school online and then in person.
45The father learned about the mother’s move to Toronto in September 2020 when the children told him. It was his understanding that the mother went to Toronto because they were “renovating her place” and that it was not a permanent move. He did not question the permanency of the move until his lawyer wrote a letter dated April 9, 2021 to the mother’s counsel.
46While the father may have understood the move to be a temporary one at first, it does not make logical sense that he would still be of the view that renovations to a rented unit would be ongoing for over seven months. I infer from the evidence that the more plausible explanation for the father not pursuing any concern with the move until April 2021 is because the children continued to attend school in London and his parenting time continued without change. I accept the mother’s evidence that, sometime in October or November 2020, she told the father that her move was intended to be a permanent one.
47The mother did not tell the father her Toronto address. She was, and remains, afraid of him knowing.
48On September 29, 2020, the parties signed a second separation agreement that they prepared again without the help of counsel.
49In part, this agreement provided that the parties would share joint legal custody as it was in the best interests of the children. Also, as was the case in the first separation agreement, the principal residence of the children was to be with the mother and the parties would share parenting time on a 2-2-3 basis.
50Regarding support, this agreement provided that the father would pay child support of $600 per month and spousal support of $600 per month “indefinitely… or until [the mother] remarry”. [3]
51The support provisions were changed in an attempt to have the divorce application granted.
Criminal Charges are Laid Against the Father
52On March 15, 2021, the father was charged with 15 criminal offences. The mother was the complainant, or alleged victim, in each one. These offences were historical, dating from 2008 until 2020.
53The father was arrested on March 15, 2021 and held overnight. A release order was granted which included a term that prohibited him from communicating with the mother except under a subsequently made court order, for the purpose of arranging parenting time.
54Despite this release order, the father continued to have the children in his care on a 2-2-3 schedule. His family members engaged with the mother for the purposes of parenting-time exchanges.
55On April 12, 2021, the mother brought a without notice motion against the father. Based on the evidence presented by the mother, I made an interim interim without prejudice order that the children reside with the mother and that the father have no parenting time with the children. The mother made allegations of physical abuse by the father against the children.
56In mid-April 2021, the father was charged with an assault on [T.P.]. The father was then prohibited from having contact with the children.
57In September 2021, the children began attending private school in Toronto. They have continued at that school since then.
58The father’s criminal trial on the 15 charges ended on February 14, 2022. All the charges related to his alleged actions against the mother were withdrawn at the request of the Crown. The withdrawal request was made after the mother testified in that trial. The basis for the withdrawal request was not put in evidence at this trial.
59The criminal trial against the father in relation to the assault on [T.P.] was concluded in April 2022 without a conviction.
60The father began supervised visits with the children in April 2022. [4]
61By order of Justice Korpan dated August 30, 2022, parenting time resumed on a 2-2-3 basis. [5]
62By order of Justice Korpan dated October 5, 2022, parenting time was ordered to take place on an alternating two-week schedule. During the first week, the children were ordered to be in the father’s care from Thursday at 4:00 p.m. until Monday at 4:00 p.m. During the second week, the children were ordered to be in his care from Friday at 4:00 p.m. until Monday at 4:00 p.m.
63This is the parenting time arrangement currently in place.
64When the father picks up the children, either on Thursday or Friday after school, he takes them back to his home in London, to an apartment to which he has access in Kitchener or stays in Toronto at a hotel.
65The father is responsible for returning the children to school on Monday morning. He has had problems getting them to school on time. They have missed important lessons. The father acknowledged being late on occasion. His evidence is that sometimes he feels frustrated and overwhelmed with having to take the children to school on the current schedule.
66At this time, there remains in place a temporary restraining order between the parties. It requires that their communication be through a parent communication app or, in the event of an emergency, by way of text. [6]
The Children
67[A.P.] is now ten years old. She attends grade four at […] School in […].
68The father describes [A.P.] as a bright and creative girl who is mature for her age. Ms. Heslop, the Children’s Lawyer’s clinician, described [A.P.] as a “confident and intelligent child who is developmentally on par with her peers.”
69The mother has observed incredible growth in [A.P.] since she started to attend […] School.
70In [A.P.]’s June 2023 report card from […] School, her teacher described her as a “kind, warm and funny classmate… [She can] become easily frustrated and emotional when encountering written instructions that are challenging… [And finally] she is continuing to prove herself to be a willing and enthusiastic learner by collecting knowledge and understanding across various subjects.”
71[T.P.] is now eight years old. He attends grade two at […] School.
72The father describes [T.P.] as bright, with a mind that “works differently” and as a child who, “if he is interested in something is 100% interested in it.”
73When [T.P.] was in grade one, [they were] diagnosed by Dr. [P], a psychiatrist, with ADHD and as having a learning disability. The doctor recommended that [T.P.] have an Individualized Education Plan with curriculum modifications and accommodations put into place.
74At […] School, [T.P.]’s needs are being addressed. He has the benefit of an occupational therapist at the school, who helps him with speech issues and fine motor grasp.
75The mother also observes with respect to [T.P.] that he has made incredible gains since attending […] School. The mother has observed that [T.P.] is starting to achieve grade level in some subjects.
Issue #1 – What Parenting Order is in the Best Interests of the Children?
Legal Considerations
76The Divorce Act s. 16(1) provides that when making a parenting order, the Court shall take into consideration only the best interests of the child. Section 16(2) provides that when considering factors related to a child’s best interests, the Court is to give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing. At s. 16(3), the Act sets out a number of factors related to the circumstances of a child that are to be considered in determining best interests. The factors related to family violence to be taken into account are specifically set out at s. 16(4).
77When allocating parenting time, the Court is required under s. 16(6) to give effect to the principle that a child should have as much time with each parent as is consistent with the child’s best interests.
Best Interests Factors
(a) The child’s needs, given the child’s age and stage of development, such as the child’s need for stability
78The mother was the parent principally involved in the children’s caregiving while the parties lived together. Since separation, and in particular since she and the children moved to Toronto, she has made appropriate decisions regarding their schooling and healthcare.
79The children are settled in their new school. They have achieved significant gains since they started their attendance there.
80The mother plans to remain in Toronto where she has a strong support system in place.
81The father gave evidence that he may move to Kitchener if he is not granted sole decision-making responsibility and primary care of the children.
82The father argues that, even though the children have been in Toronto attending […] School since 2021, “there is no reason to believe they would not adjust to a return to school in London.” This is contrary to the evidence that [T.P.], in particular, does not adapt well to change. According to the mother, “he is slow to warm up.”
(b) The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life
83The children have a positive relationship with both parents. I accept the evidence of the clinician that both parents interact in a positive and age-appropriate manner with the children. I do not accept the mother’s evidence that the children do not have a good relationship with their father and that they fear him.
84In addition to their relationship with each parent, the children have a close relationship with their maternal grandmother. The mother and children live with the maternal grandmother. She is involved with them on a daily basis. She also provides logistical support when needed.
85The father’s extended family resides outside of London. The children have a positive relationship with these relatives when they are able to get together, primarily in the summer.
(c) Each spouse’s willingness to support the development and maintenance of the child(ren)’s relationship with the other spouse
86The father gave evidence that he appreciates that the mother should have a “significant and important role” in the lives of the children. When asked in cross-examination whether the mother meets the physical needs of the children, he stated, “for the most part.” When asked in cross-examination if she was a good mother, I noted that he delayed giving his answer and appeared to try to formulate a response. He ended up stating that he “had some questions but that, on the whole, she was a good mother.”
87The mother is concerned about the children’s relationship with the father. I find that this is based on her experiences with him. She was and remains a victim of his family violence towards her. It has influenced her view of the father and of his relationship with the children. She has not been consistently forthcoming with the father about decisions she has made or steps she has taken in addressing the children's needs. She has not sufficiently consulted with him in this regard.
(d) The history of care of the child(ren)
88As described above, the mother was the children’s primary caregiver while the parties lived together. She has remained the parent primarily responsible for their care, including schooling and health.
89While the second criminal charge was outstanding, the father did not have any contact with the children. This lasted approximately one year. Since October 4, 2022 when the order of Justice Korpan was made, the father has had the children in his care every weekend: in week one, for four days, and in week two, for three days.
(e) The child(ren)’s views and preferences, giving due weight to the child(ren)’s age and maturity, unless they cannot be ascertained
90According to the report of the clinician, [A.P.] liked the time she spent with both parents and would like it to be as even as possible. She did not like the drive back and forth between Toronto and London.
91[T.P.] told the clinician that he wanted to spend equal time with both parents.
92I accept these are the independent views and wishes of the children.
(f) The child(ren)’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage
93Both parents propose to involve the children in their Christian faith.
94The children are biracial. The mother is an African Canadian with a Jamaican heritage. She wants the children to be aware of and exposed to their culture and heritage.
95I accept the mother’s argument that the father’s family, while perhaps well-meaning, has not always been sensitive to the experiences of the mother as a person of colour. The mother described insensitive comments, in particular made by the children’s paternal grandfather. When made, the father did not correct or intervene.
(g) Any plans for the child(ren)’s care
96The mother’s plan is to remain in Toronto with the children and continue to reside with the maternal grandmother. She wants the children to continue attending […] School. They will be involved in extracurricular activities and benefit from the support system the mother has put in place.
97The father’s evidence is that his plan may depend upon the outcome of this case. If he is granted, as he requests, sole decision-making responsibility and primary care, he will remain in London with the children. He will enroll the children in a school within his catchment area. If he is not granted sole decision-making responsibility and primary care of the children, he may move to the Kitchener area.
98Both parents propose a plan that the other parent have parenting time with the children: the mother proposes that the father have parenting time with the children three out of four weekends per month; the father proposes that the mother have parenting time with the children on alternate weekends. The mother's proposal is the same as the clinician recommended.
(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(ren)
99I find that the mother has both the ability and willingness to understand and meet the needs of the children. She has demonstrated her ability to do so, both before and after the parties separated.
100In submissions, the father reluctantly acknowledged that the mother is able to care for and meet the children’s needs.
101I accept the father’s evidence that he is willing to care for and meet the needs of the children. He has not had the opportunity to establish the extent of his ability to do so.
(i) The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child(ren)
102At best, the mother is reluctant to communicate with the father. She does not want him knowing where she lives or works. However, during her cross-examination, the mother agreed with counsel that the parties were able to communicate through OurFamilyWizard. In the past, she did use this communication application with respect to [T.P.]’s medication, however, after the fact. On other occasions—requesting the name of the child’s doctor and the times and places of doctors’ appointments—the mother did not use the application effectively. The mother did not appear willing to cooperate with the father to keep him informed of matters pertaining to the children, and in particular with respect to [T.P.]. However, when the issue of communication was before the Court on a motion, the mother did provide the required information.
103In her evidence, the mother explained that she remains affected by the father’s abusive behaviour towards her. Normal conversations with him are not easy. She still has nightmares. However, she also knows that she will need to communicate with the father. She acknowledged in her evidence that she needs to “navigate and work through it.”
104The father has demonstrated his willingness to communicate through a parenting application.
(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(ren), and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child(ren)
105I find that the mother did experience family violence from the father. He acknowledged three incidents where his behaviour was in the nature of coercive and controlling behaviour.
106The father acknowledged in his evidence that he started drinking alcohol in 2011 after the parties were married. The father’s friend, Mr. [B.], gave evidence that the drinking may have started in 2009 or 2010. Having regard to his admitted acts of family violence in the early years of the marriage, I accept the mother’s evidence that his drinking affected his behaviour. I do not accept the father’s evidence that he “never argued when drinking.”
107In the Children’s Lawyer’s report, the clinician stated that [A.P.] reported “that when her parents lived in the same house, she remembers them angry and fighting… There was a lot of yelling at each other and… would get woken up from her sleep sometimes.” This statement from the child is consistent with the parties’ evidence about their own interactions with each other.
108The father also acknowledged in his evidence that he becomes frustrated in dealing with the mother. His frustration led to the incidents of family violence to which he admitted. [J. P.], the father’s cousin, did observe “unhealthy bickering” between the parties. He observed the father becoming annoyed and frustrated. He did not see any physical violence.
109With respect to the family violence admitted by the father, he states that these events took place a long time ago. The implication in this argument is that the fact that they happened should provide little, if any, probative value regarding his current behaviour. However, the father’s issues with frustrations and ongoing conflict continue. When asked if he had a volatile temper, he responded, “I have been known to be easily over excited on things.”
110Individually, each of these factors would not support the finding sought by the mother regarding family violence. However, it is the totality of the evidence that leads me to find that, on the balance of probabilities, the mother did experience family violence from the father.
111Having made this finding, the Court must consider the impact of this family violence upon the ability and willingness of the father to care for and meet the needs of the children. I find that the father remains willing to care for and meet the needs of the children. He has been able to maintain a positive relationship with the children, as confirmed by the Children’s Lawyer’s clinician. I must also take into account that the father’s propensity towards frustration has caused him not to take the children to school on Monday mornings. As stated earlier, this has caused them to miss important lessons. The father’s evidence is that he “feels frustrated and overwhelmed” with having to take the children to school on their existing schedule. That is the only evidence of significance that bears on the father’s ability to currently meet the needs of the children. He has plausibly explained the various concerns regarding his ability to keep the children safe as identified by the mother, such as [T.P.]’s skin rash, loose tooth, and bruises. I accept his explanations.
112The other factor identified in the Divorce Act in relation to family violence is to consider the appropriateness of making an order that would require the mother and father to cooperate on issues affecting their children.
113The mother’s evidence is that, in March 2013, the father forced the mother to engage in unwanted sexual activity. The mother's evidence is that this event occurred when the parties were living in the home they purchased. She was pregnant but subsequently miscarried. On the day in question, the father came home “completely belligerently drunk… and that is when [she] was sexually assaulted by him. [She] was screaming rape. [She] was scratching. [She] was doing everything in [her] power to get [herself] off of him...”
114After this event, the mother started counseling from her Christian community and understood that divorce was not an option, so she stayed. The father did not want to go to counseling.
115The father's evidence is that this never happened and that it was not possible that he drank and forgot.
116In 2021, the father was charged with sexual assault as a result of this incident. In 2022, the charge was withdrawn at the request of the Crown. I infer that the evidence given in the criminal trial would not meet the Crown’s burden of proving the offence beyond a reasonable doubt. In this family law case, the mother’s burden of proof is on the balance of probabilities.
117I find that the mother sincerely believes that she suffered an incident of unwanted sexual contact with the father in the incident described. Based on the mother’s evidence, I infer that this incident left the mother traumatized, the effects of which continue to affect her relationship with the father to this day.
118When I consider all of the evidence presented, I find on the balance of probabilities the mother's evidence about this incident to be reliable.
119Because of the consequences of this incident to the mother, her ability to communicate directly with the father about the children has been compromised.
Relocation: Best Interests of Child — Additional Factors to be Considered
120Section 16.92 (1) of the Divorce Act requires the Court to consider additional best interest factors when deciding whether to authorize a relocation.
121The father argues that the mother unilaterally moved the children to Toronto and this move was not in their best interests, therefore the children should be returned to London.
122I agree with the father that the mother’s move was a unilateral one. Generally, courts should not condone one parent’s unilateral move of the children. However, I accept the mother’s explanation that she moved out of concern for the safety of her and the children. Her home had been broken into twice within a few weeks. She found safety in the home of her mother in Toronto.
123Initially, the move could be characterized as a change in place of residence. For many months after moving to Toronto, the mother ensured that the father’s parenting time was not affected by the move nor was the children’s schooling. The evidence does not disclose that the move had a significant impact on the children’s relationship with the father. It was only after the father was prohibited from contacting the children and the mother that she transitioned the children to relocate to Toronto.
124The children have now been in Toronto since September 2020 and attending school there since September 2021. They are receiving beneficial and needed services and support in Toronto. An unwelcome consequence of the change is that the children must now spend a lot of time travelling back and forth between Toronto and London. This is something that they do not enjoy.
The Children’s Lawyer’s s. 112 Investigation and Report
125By order of Justice Korpan dated August 30, 2022, the Court requested the involvement of the Children’s Lawyer in this case. The Children’s Lawyer agreed to become involved by appointing a clinical investigator to conduct an investigation pursuant to s. 112(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Section 112(2) provides that the Children’s Lawyer may report and make recommendations to the Court on the results of the investigation. The report forms part of the evidence at the trial: s. 112(6).
126A Children's Lawyer’s report is a fact-finding report. It is not a CLRA s. 30 assessment.
127The clinician assigned by the Children’s Lawyer in this case was Crystal Langdon. Ms. Langdon began her investigation in November 2022 by interviewing the parties. Her report is dated May 11, 2023.
128Ms. Langdon has a BA, MSW, RSW, and a social services diploma. She teaches at Conestoga College. She has experience as a CAS supervisor (9 years) in addition to working at CMHA, London Children’s Hospital, and Alberta Health Services. Furthermore, Ms. Langdon has carried on a private practice for several years. Since 2016, Ms. Langdon has undertaken “about 30” investigations.
129Ms. Langdon described the methodology she employed in conducting her investigation. This included interviewing the parties and children, reviewing court documents and obtaining information from collateral sources. After conducting her investigation, the clinician recommended, in part, that the mother have sole decision-making responsibility and that the father have defined parenting time with the children.
130In addition to the report, I considered the addendum to the report appended to Ms. Langdon’s affidavit sworn August 16, 2023, the Notice of Dispute filed by the father dated May 11, 2023, and the Children’s Lawyer’s response to the father’ Notice of Dispute dated August 18, 2023.
[131] The father submits that the Court should not accept the clinician’s recommendations because: a) the recommendations do not take into account the mother’s comments about the father; b) the clinician did not meet with the mother in person and the contact she did have was limited; c) the clinician did not speak with the mother’s mother, the person with whom she and the children live; d) the clinician offered little analysis and did not give proper consideration to which parent would facilitate the parent-child relationship and glossed over the mother’s concerning behaviour.
132In Knapp v. Knapp, 2021 ONCA 305, relied upon by the father, the Court states at para. 20 that a trial judge is not required to accept the OCL recommendations. In that case, the trial judge made extensive factual findings in rejecting the foundation of the clinician’s recommendations. The trial judge made her own assessment of the children’s best interests in that case.
133I do not fault the clinician for conducting some interviews virtually. The clinician’s unchallenged evidence was that during the pandemic, all investigations were conducted remotely. There is no evidence that this accommodation compromised the investigation. There is no evidence that the amount of time spent by the clinician with the parties was insufficient.
134I do not agree that the clinician failed to take into account the mother’s comments about the father or the concerning behaviour referred to by him. The clinician did report on statements both parents made about the other, as well as the responses made about the other’s comments. The clinician was also aware that the CAS did not verify any protection concerns with respect to the father. The clinician referred to the CAS report that indicated there was a concern that the children’s “disclosure may be impacted” by the mother.
135I agree with the father that it would have been helpful to hear from the maternal grandmother as she is an important person in the mother’s plan of care. The clinician respected the mother’s request that her mother not be involved in this matter.
136In the discussion portion of the report, the clinician did not specifically refer to all the best interest factors contained in the Divorce Act. However, when the report is considered as a whole, the clinician did obtain information in relation to all relevant factors. She was aware of the mother’s fear of, and antipathy towards, the father. The clinician did not attempt to make findings of fact with respect to family violence. Rather, she reported what both parties stated to her.
137In her analysis of the information obtained through the investigation, the clinician did address many factors, including the needs of the children, how these needs were being met by the parties, the mental health of both parties, the issue of family violence, and the parties’ respective plan for the care of the children. The clinician did not assume that the children had to stay in Toronto.
138The factual foundation of the report was consistent with the evidence as I have found it in this case.
139I find that the investigation was conducted in an appropriate manner. I also find that the recommendations were reasonably based on the investigation. I accept the clinician’s evidence that she fairly considered information provided by both parties, as well as their respective proposed plan for the children.
Discussion
140I have carefully considered the best interests factors in relation to the evidence and the submissions of the parties.
141I also take into account that the best interest factors in the Divorce Act are not an exhaustive list. These factors do not comprise a checklist to be tabulated to determine who has the most points. Instead, the Divorce Act requires the Court to take an holistic look at the children, their needs, and the people in their lives.
Decision-Making Responsibility and Primary Residence
[142] Despite Ms. Burns’ able advocacy, when I consider all of these factors, I find that it is in the children’s best interests that the mother have decision-making responsibility with respect to the children and that they reside primarily in her care in Toronto. − It is the mother who has been and will be primarily responsible for the day-to-day care of the children. − She is better able to identify the many needs of the children and take steps to provide for them. − It will be the mother who will have greater responsibility for the children’s upbringing and for implementing the decisions made for their wellbeing, and it is she who will have to live with those decisions. − The mother’s plan provides for greater stability for the children than does the father’s. Since the children’s move to Toronto in September 2020 and their attendance in school there since September 2021, they have had the benefit of a plan that meets their needs. The father has not provided sufficient reasons to upset this stability. − The mother’s plan includes a stronger family and community support system than does the father’s. − The mother’s plan will better ensure the children’s connection to their African Canadian heritage. − I agree with the father that he is better able to promote the children having a positive relationship with the mother than the mother is with respect to the father. However, context matters and offers an explanation. The mother’s experience with the father explains her view of him. However, since the separation, and despite all the events that have happened since, the children have been able to maintain a positive relationship with the father. The clinician was able to observe and hear from the children in this regard. Whatever the mother’s feelings are towards the father, she has not turned the children away from him nor undermined their relationship with him.
143However, the mother’s decision-making responsibility must be constrained to ensure that the father is able to have significant involvement in decisions made with respect to the children. The mother must meaningfully consult with the father before any non-urgent decisions of significance related to the children’s education and health are made by her.
144As a result of their history, the mother is unable to effectively communicate with the father in person. I accept her evidence that she will continue to work through this so that there can be communication. In this case, consultation will be through a parent communication application or other electronic means. In this way, there will be a record of the extent and nature of communication between the parties. The mother must keep the father informed about who is providing the children with healthcare services and the schools they attend. He must have the opportunity to consult and meet with these persons.
145The mother must also keep the father informed of the decisions that she makes after there has been this meaningful consultation.
146Neither party requested that there be a joint decision-making responsibility order in this case as was the plan contained in their separation agreements.
Parenting Time
147The children have a positive relationship with the father. It is imperative, therefore, that the children have the opportunity to maintain and develop this relationship.
148The challenge in making a parenting-time plan in the best interests of the children is the geographic distance between the parties.
149The father submitted that if he were granted primary residence of the children in London and the mother lived in Toronto, it would be in the children’s best interests that they have parenting time with the mother on alternate weekends.
150The mother submitted that if she were granted primary residence of the children in Toronto and the father lived in London, it would be in the children’s best interests that his parenting time be three weekends each month during the school year.
151Neither party included in their written submissions what would be in the best interests of the children if they were not granted primary care of the children.
152I find that the parenting-time plan proposed by the mother better meets the best interests of the children than does the father’s. The children will see the father more often than he proposed they would see the mother. There would be the opportunity for mid-week parenting time.
153The mother’s plan is based on the recommendation of the clinician. As stated above, I found that the recommendations of the clinical investigator were reasonable, based on the investigation conducted by her.
154The current parenting-time plan, whereby the children are with the father every weekend and must spend time traveling, is not in the best interests in the long term. There is too much travel for the children. As well, the mother does not have any opportunity to spend downtime with the children and engage in recreational activities with them.
155The mother’s plan proposes that the father’s parenting time be reviewed if he moves within one hour of the children’s school so as to potentially allow mid-week parenting time for him. This proposal is a reasonable one having regard to the father’s evidence about his intentions to move to the Kitchener area if he were not granted primary care of the children. The father did not provide sufficient details about this plan, therefore a review of mid-week parenting time is appropriate in this case, if he moves. To be clear, the review relates only to mid-week parenting time if the father moves closer to Toronto.
156Both parties have suggested additional terms related to the parenting order with respect to disclosure of information and communication. Some will be incorporated in the final order to be granted.
Issue #2 – Should a Restraining Order be Granted?
157When the trial, began the mother wanted a restraining order against the father. However, at the conclusion of the case the mother withdrew her request for a formal restraining order and submitted instead that limiting communication through a parenting application and only about the children would be appropriate. As well, she asks that the father not come within 10 meters of her. I find that the granting of a restraining order in this case is not required if these additional terms are included.
Issue #3 – What Amount of Child Support Should be Ordered in this Case?
158The parties agreed that the determination of child support would follow the results of the parenting time order.
159Based on the parenting-time order made, the father is obliged to pay child support to the mother for the two children.
160I accept the father’s evidence that, in 2024, he expects to earn income of approximately $96,000 [7].
161According to the Federal Child Support Guidelines (“CSG”), the table amount of child support for two children to be paid by the father based on an annual income of $96,000 is $1,423 per month.
162The mother requests that the table child support be paid by the father commencing January 1, 2024.
163The mother is not seeking any table amount of child support for the period prior to January 1, 2024.
164However, the father seeks in his proposed draft final order a recalculation of child support from January 1, 2021 based upon the parties having had shared parenting time with the children.
165For 2021, the father claims that he underpaid the mother child support in the amount of $1,896. This calculation is based on the mother having income of $40,294 (child support $601 per month) and the father having income of $90,743 (child support $1,359). He owed $758 net and paid $600 per month.
166However, beginning in April 2021 and for the rest of that calendar year, the father did not have the children in his care. Beginning April 2021, s. 9 of the CSG was not engaged. On this basis, the father’s 2021 child support shortfall was $6,704 based on the father’s calculations.
167For 2022, the father claims he overpaid child support in the amount of $2,544. This calculation is based on the mother having income of $45,128 (child support $676) and the father having income of $69,833 (child support $1,064). He owed a net of $388 per month and paid $600 per month. The order of Justice Korpan dated August 30, 2022 provided for the resumption of shared parenting. Based on these calculations, the father underpaid child support in 2022 in the amount of $3,152.
168For 2023, the father requests that income be imputed to the mother in the amount of $45,128. The mother’s financial statement sworn August 17, 2023 discloses her 2023 income was expected to be $18,804.72. At trial, the mother was vague regarding her income and the specifics of her employment. As I understood her evidence, she explained that the drop in her income was due to her taking courses. Because the mother was unclear in her income for 2023, income will be imputed to her for that year as requested by the father. Based on the father’s calculations, he overpaid child support in 2023 in the amount of $2,544.
169Based on these calculations, the father underpaid child support from January 2021 until December 31, 2023 in the approximate amount of $7,300.
170The mother is not asking that the father be required to pay this sum. She asked that there be an order that no support was owing by the father to the mother as of December 31, 2023.
171She also asks that the father pay table child support in the amount of $1,423 per month starting January 1, 2024.
172Based on the father’s anticipated 2024 income of $96,000 and imputed income to the mother of $45,128 only for the year 2024, the father has underpaid child support in the amount of $147 per month since January 1, 2024.
173Having regard to all of these calculations, I will accede to the mother’s request that there be no table child support owing by either party to the other as of December 31, 2023.
174For the period January 1, 2024 to and including March 31, 2024, the father is to pay the mother an additional amount of $147 per month, being a total of $441.
175Starting the first day of April 2024 and on the first day of each month thereafter, the father is to pay table child support for the two children in the amount of $1,423 based on his 2024 income being $96,000.
176In the mother’s written final submissions, no specific s. 7 expenses were claimed. She asked that if there are any s. 7 expenses, they shall be shared equally. I will not make any order with respect to special expenses. If s.7 expenses are claimed in the future, the parties may confer electronically about them and if they cannot agree, either can seek an order of the court in the usual manner, and the provisions of the CSG will be applied.
177The parties are to provide ongoing financial disclosure as required by s. 25 of the Divorce Act.
Spousal Support
178In her application, the mother sought spousal support from the father. In her final submissions, she asked that there be no order for spousal support.
179The father’s obligation to pay spousal support to the mother under the separation agreement made by the parties shall end March 31, 2024. In addition, there shall be no spousal support arrears owing by the father to the mother nor spousal support overpayment owing by the mother to the father as of March 31, 2024.
Divorce
180As all of the requirements of the Divorce Act have been met, a divorce order shall issue.
181In action number 586/19-00, the divorce case, the applicant is described as [D.P.P.] and the respondent is described as [E.G.P.]. In action number 586/19-01, the mother is the applicant, her middle name does not appear in the title of proceedings, the respondent is the father, and his middle name does not appear in the title of proceedings.
182In these circumstances, a divorce order simpliciter (that is, a divorce order containing the granting of a divorce only and no corollary relief) shall issue in action number 586/19-00. A separate order shall issue in action number 586/19-01.
Order
183For these reasons, the following orders shall issue:
In action number 586/19-00
Divorce
- A divorce order simpliciter (that is, a divorce order containing the granting of a divorce only and no corollary relief) shall issue.
In action number 586/19-01
Decision-Making Responsibility
The mother shall have sole decision-making responsibility for the children, namely, [A.P.], born […] 2014, and [T.P.], born […] 2015.
Prior to making a decision concerning the children, the mother shall have meaningful consultation with the father in the manner set out below, and the parties shall endeavour to make significant decisions about the children’s health, education and well-being together.
If, after meaningful consultation on non-urgent significant decisions about a child’s health, education and well-being, a mutual decision is not made within 14 days, the mother shall make the decision and shall inform the father of the decision that has been made.
Consultation shall be through a parent communication application or other electronic means. There is to be a record of the extent and nature of communication between the parties. Unless another communication method is mutually agreed to by the parties in writing and in advance, the parties shall continue to use OurFamilyWizard to consult and share information related to the children, namely, [A.P.], born […] 2014, and [T.P.], born […] 2015. Communication shall be polite, to the point, in a clear and child-centered manner, and if a response is required, it shall be given within 24 hours.
The mother must keep the father informed about who is providing the children with healthcare services and the schools they attend. The father must have the opportunity to consult and meet with these persons.
The mother and the father shall have the same right and entitlement to information directly from third parties relating to the health, education, and welfare of the children, namely, [A.P.], born […] 2014, and [T.P.], born […] 2015, without the necessity of any release, direction or acknowledgement executed by either party.
Both parties shall be listed as emergency contacts at the children’s school(s) before any other names are used.
Should either of the children, namely, [A.P.], born […] 2014, and [T.P.], born […] 2015, require emergency medical care at a hospital or to be hospitalized while with one party, that party shall promptly notify the other party of the emergency as soon as reasonably possible.
Parenting Time
The primary residence of the children, namely, [A.P.], born […] 2014, and [T.P.], born […] 2015, shall be at the residence of the mother.
While the father resides in London, he will have parenting time as follows: i. Every 1st, 2nd, and 4th weekend from Friday pickup from school to Monday return to school (or, if the father is unable to ensure the children get to school on time Monday morning, then Sunday evening at 8:00 p.m.). If the weekend falls on a PD Day or statutory holiday, then the father’s time shall be extended to include that day. ii. On the 3rd week, the father may have parenting time up to twice during the week, in Toronto, at such time or times as may be agreed to by the parties in advance and in writing. iii. The children, namely, [A.P.], born […] 2014, and [T.P.], born […] 2015, shall be in the care of the mother, from 10:00 a.m. on Mother’s Day if they are not otherwise in the mother’s care that weekend. iv. The children, namely, [A.P.], born […] 2014, and [T.P.], born […] 2015, shall be in the care of the father, from 10:00 a.m. on Father’s Day to Monday return to school (or, if the father is unable to ensure the children get to school on time Monday morning, then Sunday evening at 8:00 p.m.) if they are not otherwise in the father’s care that weekend. v. During the summer school break, the mother and the father shall share care of the children on a week-about basis with exchanges to take place every Friday at 4:00 p.m. or such other time as they mutually agree upon in writing in advance. The summer school break shall commence at 4:00 p.m. on the last day of school and end on Friday at 4:00 p.m. before the start of the next school year, or such other times as they mutually agree upon in writing in advance. The mother shall have the children in her care for the first week of the summer in even-numbered years and the father shall have the children in his care for the first week of the summer in odd-numbered years. vi. In even-numbered years, the mother shall have the children, namely, [A.P.], born […] 2014, and [T.P.], born […] 2015, in her care for the first half of the Christmas school break from pickup at school on the last day of school before the break until 12:00 p.m. on the half-way point of the break, and the father shall have the children in his care for the second half of the Christmas school break from 12:00 p.m. on the day that is half-way through the break until return to school following the Christmas school break. The reverse shall occur in odd-numbered years. vii. All other holidays to take place as they naturally fall in the parenting schedule. viii. Exchanges that occur outside of regular school pickup/drop-off to take place at the […], or in another public location mutually agree upon in writing in advance.
If the father moves to Kitchener, Ontario (or within a one-hour drive of the children’s school), the parenting schedule may be reviewed by the parties for the purpose of considering mid-week parenting time for the father and non-school exchanges at the […].
Each party shall make day-to-day decisions about the children, namely, [A.P.], born […] 2014, and [T.P.], born […] 2015, when the children are in their care.
Neither party shall disparage the other party or members of their family to or in front of the children nor allow third parties to do so.
Except as otherwise provided in this order, the father shall not contact or communicate with the mother.
The father shall refrain from coming within ten meters of the mother, her place of residence, school, or employment.
Restraining Order
- The mother's request for a restraining order is dismissed.
Child Support
Starting the first day of April 2024 and on the first day of each month thereafter, the father is to pay table child support to the mother for the benefit of the two children, namely, [A.P.], born […] 2014, and [T.P.], born […] 2015, in the amount of $1,423 per month based on his 2024 income being $96,000.
For the period January 1, 2024 to and including March 31, 2024, the father shall pay the mother $147 per month, being a total of $441. This is in addition to the child support paid during this period.
There shall be no child support owing by the father to the mother or by the mother to the father as of December 31, 2023.
The parties’ obligation to pay child support to the other under the separation agreement made by them is terminated effective April 1, 2024.
On or before June 1 in each year, commencing June 1, 2025, the parties are to provide ongoing financial disclosure as required by s. 25 of the Divorce Act.
Spousal Support
The mother’s claim for spousal support is dismissed.
The father's obligation to pay spousal support to the mother under the separation agreement made by them is terminated effective April 1, 2024.
There shall be no spousal support owing by the father to the mother or by the mother to the father on account of an overpayment or underpayment of spousal support as of March 31, 2024.
Costs
If the mother and father are not able to resolve the issue of costs, the mother may make written submissions within 10 days of the release of these reasons. The father shall have 10 days after the receipt of the mother’s submissions to respond. The submissions shall be no more than three pages, double-spaced, and a minimum of 12-point font, together with any offers to settle and a bill of costs.
The party opposing a claim for costs shall include in their submissions documentation showing their own fees and expenses: see Family Law Rules, r. 24(12.2).
The parties have the option of filing their costs submissions through the JSO portal or to London.courthouse@ontario.ca
If costs submissions are not provided within the time provided for in these reasons, they shall be deemed to be settled.
“Justice B. Tobin”
Released: April 3, 2024
COURT FILE NO.: FC586/19-01 DATE: April 3, 2024
ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT
BETWEEN: E.P. Applicant
- and - D.P. Respondent
REASONS FOR JUDGMENT TOBIN J.
Released: April 3, 2024
1As stated above, the trial was delayed briefly while I considered whether to appoint amicus curiae in this case. This arose out of my concern that the mother, who claimed to be a victim of abuse, including sexual abuse by the father, would be put into the position of having to cross-examine him herself. See E.P. v. D.P., 2023 ONSC 6112. Appointing amicus was not necessary as Ms. Guslits agreed to represent the mother.
2See endorsement of Justice Korpan dated May 18, 2023, at para. 67.
3See Exhibit 27.
4See Endorsement of Justice Korpan dated January 16, 2023, at para. 29.
5Ibid, para.30.
6Ibid, para.31.
7In his oral evidence, the father stated that his income in 2024 would be approximately $96,000. In his financial statement sworn September 18, 2023 it states that his annual income of that share would be $95,000.