COURT FILE NO.: FC-09-1620-01

DATE: 20240409

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

C.R.

Applicant

– and –

A.H.

Respondent

Muhammad Khan, for the Applicant

Danielle Gendron, for the Respondent

HEARD: November 28, 29, 30, December 1 and 20, 2023, January 30 and February 23, 2024

REASONS FOR DECISION

J.P.L. McDermot

Introduction

[1] The evidence at this trial concentrated on parenting issues concerning the parties’ two children, S.H.R. (who is 15) and R.H.R. (who is now 7 years of age). There were also child support issues raised by the Applicant Father at trial, although he failed to include them in his pleadings.

[2] These parties had what could best be described as a tumultuous relationship. Both parties testified that they met through a dating website in 2007 and their first child, S.H.R., was born in 2008. They separated in 2009 after the Applicant was charged with four counts of assault against A.H. who went to live at the Barrie Women and Children’s Shelter. They appear to have maintained contact afterwards in the face of a criminal no contact order and A.H. testified that there were several lockdowns because C.R. kept coming by the shelter. A.H. eventually obtained public housing and it is good that she did so as she was told to leave the shelter because she used marijuana contrary to shelter rules.

[3] The parties continued to cohabit after A.H. obtained housing with C.R. moving in and out of her home sporadically. He testified that he moved back in in 2014 when the charges were resolved; A.H. says it was earlier. A.H. alleges serious and ongoing physical and emotional abuse and this was corroborated by her next door neighbour’s evidence at trial. The family violence was also corroborated by the fact that C.R. pleaded guilty to one count of assault in 2012, presumably admitting under oath that he had assaulted A.H..[^1] During the time that they cohabited sporadically after 2009, A.H. also maintained family court proceedings for custody of S.H.R. A final order giving her custody of S.H.R. was eventually made on August 16, 2015. Notwithstanding this order, A.H. gave birth to R.H.R. just under nine months later, on May 5, 2016.

[4] Later, on August 15, 2016 a final order was made by Sutherland J. on consent which gave the parties joint custody of both of the children and A.H. primary care. On July 12, 2017, again by way of consent order, C.R. was awarded final access every second weekend from Friday at 4:30 p.m. to Sunday at 6:00 p.m. At a later uncontested trial order dated August 28, 2017, C.R. was ordered to pay child support of $355 per month based on income that was found to be $23,700 per year.

[5] A.H. did not deny that the parties had resided together on and off throughout this period of time. She said, however, that the course of abuse continued throughout. She testified as to sexual violence and said that R.H.R. was conceived as a result of a sexual assault when C.R. forced himself onto her.

[6] Matters came to a head when A.H. had a breakdown on June 20, 2019. On that date, C.R. says he was working and was called by Gabby Pechman from Simcoe Muskoka Family Connexions. He was asked to immediately come to A.H.’s residence (where he was also living). A.H. was removed by the police and taken to Royal Victoria Hospital under a Form 1. She was hospitalized for about a month. The children were placed with C.R. by the C.A.S. and they have lived with C.R. ever since.

[7] A.H. wishes to resume care of the children pursuant to the August 2016 final order. She says that C.R. has used self-help and is responsible for her breakdown because of the abuse that he heaped upon her during cohabitation. She says that C.R. moved to Orillia to frustrate parenting time and to create a status quo that was to her disadvantage.

[8] C.R. seeks to change that order and obtain final care and decision-making concerning the children. He says that A.H. was always a poor parent. He points to S.H.R.’s abysmal attendance record at school when she was living with A.H. and notes a substantial improvement in attendance and schooling for both children under his care. He says that the children are happy and stable in his care and that he has provided a better home for the children than A.H. was ever able to provide.

[9] This trial opened on November 28, 2023 with a request for an adjournment by Mr. Khan who had only recently been retained by C.R. He said that he needed more time to prepare for trial because he had just been retained. I refused the adjournment. As I explained when I determined that the matter would proceed, this matter has been hanging fire since C.R. issued his application on July 29, 2019, more than four years prior to the commencement of trial. The investigation by the Office of the Children’s Lawyer was already stale dated, having been commenced in 2020 with the report issued on March 1, 2021, more than two years prior to trial. On March 25, 2022, Eberhard J. determined that this matter could not be settled and set it down for trial during the May, 2022 sittings. It was not reached then, nor was it reached in the sittings in November of 2022 nor in May, 2023. When Mr. Khan asked for his adjournment, the parties and the children had been awaiting trial for more than 20 months. Furthermore, the children have lacked permanency since June 20, 2019 and a trial was essential to prevent further instability to the children. I therefore ordered that the matter proceed.

[10] During the trial and after the parties’ evidence had been completed, I asked counsel for submissions as to whether I should conduct a judicial interview of the children pursuant to s. 64(1) of the Children’s Law Reform Act[^2] (the “CLRA”). I suggested this because there was little evidence provided during trial as to the present views and preferences of the children who are now 15 and 7 years of age. The OCL investigator had interviewed the children in 2020 when preparing her report; at that time S.H.R. was 12 and she was able to articulate views and preferences to the investigator. However, R.H.R. was only four and too young to tell the investigator what he wanted. After consulting with their respective clients, neither counsel objected to a judicial interview. I permitted both parties a chance to re-open their evidence to address the results of the interview. As it turned out, after reporting to the parties, neither party elected to lead further evidence in this matter to respond to the results of the interview.

[11] The only other issue raised at trial was child support. At the time of trial, and up to the change in care of the children, C.R. had not been paying the child support that he had been ordered to pay in 2017 and was more than $5,000 in arrears. Since 2019, the children have been living with C.R. and although A.H. complained bitterly about the loss of the child tax credit, she has not paid any support to C.R. since then (nor has she been ordered to do so). C.R. asked at trial for rescission of the arrears and that the Respondent Mother be ordered to pay child support. A.H. is a long term recipient of Ontario Disability Support payments but C.R. says this is nothing but a sham and that she is able to work and earn a living. He seeks imputation of income to A.H..

[12] In my own review of C.R.’s Application, I note that he did not request either rescission of arrears or for child support from A.H.. He did not ask to amend his pleadings at trial to permit these issues to be addressed.

Disposition

[13] For the reasons set out below, I have determined the following:

a. C.R. shall have primary care of the children.

b. C.R. shall have sole decision-making authority concerning the children after consultation with A.H.

c. A.H. shall have parenting time with the children every second weekend as well as Wednesdays (if she can obtain and provide transportation) as well as shared holidays.

d. Because C.R. failed to raise the issue of child support or rescission of arrears in his Application, I declined to make any order as to child support against the Respondent or for rescission of arrears. However, based upon the residency of the children, I have suspended payment of child support by C.R. as of June 30, 2019.

Analysis

[14] As noted, the major issues in this trial surrounded the parenting claims of both parties.

[15] This proceeding was commenced by way of an application brought by C.R. However, it is clear that he wanted to change the consent final order dated August 15, 2016 granting joint custody to the parties with primary residence of the children to A.H. On January 14, 2020, Justice Jain confirmed this to be the case and instructed that this matter proceed “like it was a motion to change”. The Respondent Mother served and filed a Response to Motion to Change in answer to the Applicant’s claim.

[16] These parties were never married and accordingly this parenting dispute is governed by the provisions of the Children’s Law Reform Act. Under s. 29 of that statute, a parenting order cannot be changed unless there has “been a material change in circumstances that affects or is likely to affect the best interests of the child or children.”

[17] There is little doubt that circumstances have changed since the final parenting orders made on August 15, 2016 and July 12, 2017. A.H. does not deny that she suffered from a breakdown in June, 2019 which resulted in the children being removed from her care and placed with the Applicant Father. The children have moved to Orillia and both are in school in that jurisdiction, with S.H.R. now in high school; under s. 29, relocation is deemed to be a change in circumstances. Although A.H. brought a motion objecting to the move, it was adjourned to a settlement conference which could not go ahead because A.H. failed to provide instructions to her lawyer. The motion was never prosecuted after that date. R.H.R. is now old enough to express views and preferences. Counsel for the Respondent raised no issue as to whether there has been a material change in circumstances since the 2016 final order. As a result, I find that there has been a material change in circumstances and that the court has jurisdiction to change the parenting orders according to the best interests of the children.

[18] The only major issue is the best interests of the children as defined under s. 24 of the CLRA and as to what parenting plan is in the best interests of the children.

[19] Prior to considering those best interests, I wish to review the evidence provided by the parties at this trial and the veracity and reliability of that evidence.

Evidence at Trial

[20] The first witness at trial was the investigator for the Office of the Children’s Lawyer, Shazeda Haroon. She was cross-examined by counsel for both parties.

[21] Each of the parties gave evidence and also called witnesses to bolster their evidence. C.R. called his two sisters and a former teacher of the children. A.H. also called her sister as a witness as well as a long-term neighbour and friend.

OCL Investigator

[22] Ms. Haroon was a credible witness but her evidence was of limited relevancy at this time. She spoke of the situation when she undertook the investigation between March 3, 2020 and January 14, 2021.[^3] At that time, the parties both lived in Barrie and this allowed her to make a recommendation for eventual shared care of the children on a 2-2-3 rotation. Her only qualifier was that the Respondent Mother had to ensure the children’s attendance at school which was the major problem that she observed concerning her parenting of the children.

[23] Since the report was prepared, much has changed. More than four years have now elapsed since Ms. Haroon began the investigation. C.R. has moved to Orillia and considering the schooling of the children and A.H.’s financial circumstances, shared care of the children is now impossible. R.H.R. is now three years older and expressing clear views and preferences and S.H.R. has now, if anything, become less enthusiastic about seeing her mother than she was during the investigation. When the report was undertaken, the status quo of the children living with the Applicant Father was less than one year in duration; the children have now lived with him for nearly five years. There has been no update to the report, which is now clearly stale dated.

[24] The evidence of Ms. Haroon was therefore useful to address the historical concerns of the parties. It did not address the best interests of the children as they are currently.

Evidence of C.R.

[25] C.R. seeks decision-making and primary care of the children. Unfortunately, although he may be a good father to the children, he was an abysmal witness.

[26] His evidence was largely without credibility. I say this for several reasons.

[27] Firstly, I found C.R. to have little insight into his own behaviour. For example, time after time, he was confronted with text messages from himself to A.H., the mother of his children, which were demeaning and abusive. C.R. indulged in name calling, profanity and insults on a consistent and ongoing basis.

[28] When confronted with these texts, C.R.’s consistent response was to blame A.H. He effectively told the court that, “if you think this as bad, you should have seen the text message that she sent me”. However, I never did see those text messages. He failed to provide any texts from A.H. with similar insults or degrading statements. If there were texts that were equally insulting, one would have thought that he would have entered them as exhibits. I can only assume that they were not made exhibits because they did not exist. His claim that he was only reacting to similar texts from A.H. is without merit.

[29] As well, C.R. said that he sent these text messages to A.H. because of her bad parenting and poor behaviour. It may be that her behaviour was frustrating and that he perceived that she was hurting the children. However, that is no excuse for the insults and venom that he spewed out in his texts to A.H. He acknowledged at one point in cross-examination that he would never treat a stranger the way he treated A.H., but he continued to justify his own abusive text messages notwithstanding that.

[30] In addition, C.R. is not to be trusted. A perfect example is what he said about his guilty plea to one of the assault charges laid in 2009. He said that he pleaded guilty because he was tired of fighting those charges but also testified that the fact that he pleaded guilty did not mean that he had committed the crime. However, as pointed out by Ms. Gendron in cross-examination, he testified under oath at the criminal court that he committed the assault as outlined in the crown synopsis. He admitted to the criminal court that he committed the assault in question, but he would now have this court believe that he did not. If he was willing to lie under oath to the criminal court when pleading guilty, it goes without saying that he would similarly be willing to lie under oath to this court in this family trial.

[31] Ms. Gendron in cross-examination was also able to point out inconsistencies and plainly inaccurate information in C.R.’s Form 35.1 affidavit and in his financial statement. When confronted by this, he took no responsibility, preferring to blame his lawyer for filling out the forms inaccurately.

[32] While witness demeanor is not the primary issue that the court reviews in determining the veracity of testimony, I can comment that C.R. is an angry man and this came out during his testimony. It came out in the text messages to the Respondent Mother that I commented on earlier in this section of the endorsement. As well, he became angry at me and expressed that I was uninterested in the best interests of the children when I refused to allow into evidence photographs that his daughter had taken of the Respondent’s residence. Because of this anger and his sense of grievance at the Respondent Mother, his evidence lacked objectivity and was with one purpose in mind, to demonstrate that the Respondent was a parent undeserving by him or the court of any parental rights.

[33] This anger may explain why C.R. breached several court orders and justified those breaches by his own version of what he thought was good for the children. The major breaches involved his move to Orillia and his placement of the children in school in Orillia. After he moved to Orillia, he also eventually ceased providing Wednesday overnight parenting time as he was obliged to do under the order of Jain J. dated January 14, 2020.

[34] Moreover, under that order, he was obligated to consult with A.H. “prior to making major decisions relating to the child(ren)’s health education and general welfare.” Notwithstanding his testimony that he kept A.H. “in the loop”, I do not believe that he did. He entered a lot of text messages into evidence but provided no proof that he had actually notified A.H. that he was considering moving to Orillia with the children or changing the children’s schools. He failed to advise the OCL investigator of his plans to move to Orillia. I simply do not believe him when he says that he did comply with this provision in the order.

[35] C.R. says that the move to Orillia was in the best interests of the children. That is not the point. He clearly breached (and continues to breach) the order in question and he does not express any regrets or contrition concerning these breaches. His only excuse is that it was a good decision for the children but if it was, he should have consulted with the Respondent and, if necessary, obtained the approval of the court for the move. I believe he did not because he knew it very well may have been refused, especially considering the fact that it essentially frustrated any potential for shared care as recommended by Ms. Haroon in her report, issued shortly before C.R. moved to Orillia.

[36] I do not find that C.R. is a credible or reliable witness. I discount his evidence where necessary concerning the parenting of the children.

C.R.’s Family Members

[37] C.R. called his two younger sisters, Shala and Bryayne Morrison. They were called to verify C.R.’s excellent parenting skills and A.H.’s corresponding poor parenting.

[38] Usually witnesses of this nature are called to inject some small amount of objectivity into evidence concerning the parenting of children. That was not the case here. Both witnesses were also extremely negative about A.H., accusing her of smoking marijuana during parenting time and of having her home in atrocious condition.

[39] That evidence was not based upon personal observation. For example, Shala Morrison spoke of R.H.R. not brushing his teeth during his parenting time with his mother. However, that was based upon a statement by R.H.R. to Shala. Although Shala Morrison said that she did not elicit information from either of the children, choosing to allow them to raise the issue, I can hardly see R.H.R. complaining of not brushing his teeth at his mother’s home on his own. And although Shala Morrison said that the mother smoked marijuana during parenting time, this came from S.H.R., not her own observation. She also said that S.H.R.’s marks were above 80% in school, but that was inaccurate and she admitted during cross-examination that she had never seen any of S.H.R.’s report cards.

[40] Bryayne Morrison testified that the conditions at the Respondent’s home were “atrocious”. However, she had not seen the home since 2018 or 2019 prior to the Respondent’s breakdown and her evidence was even more stale dated than the OCL social worker. She has not seen A.H.’s residence since then. Moreover, during 2018 and 2019, C.R. was also living in that residence and he has to take some responsibility for the condition of the home at that time.

[41] Similarly to C.R., Bryayne Morrison also excused her brother’s abusive text messages. She did it for the same reasons as did her brother, that when dealing with someone who is the way A.H. was, you had to be abusive and use profanity. In effect, she said that it was ok to be abusive if it was retaliatory. Again, no evidence of abusive text messages from the Respondent Mother to C.R. were ever provided to me by the Applicant.

[42] I did not find either of these witnesses to be particularly helpful.

Evidence of A.H.

[43] Unfortunately, A.H.’s evidence was not much better than that of the Applicant.

[44] Firstly, A.H.’s testimony about her own mental health struggles was concerning. In her testimony, she did not acknowledge that she had a psychosis in June, 2019 that warranted the intervention of the police and Simcoe Muskoka Family Connexions. Although I do not doubt that she is compliant with her medication, she blames the police for coming into her apartment without a warrant and using force to restrain her. In her testimony, she was equivocal about whether she suffered from a psychosis which had resulted in a one month hospitalization.

[45] She was also inconsistent in her evidence about why she had to leave the Women and Children’s Shelter in 2009. She blamed it on abuse by the Applicant and said that she was forced to leave because C.R. kept creeping around the shelter resulting in several lockdowns. However, in cross-examination, she admitted that she lost her place at the shelter, not because of C.R. and not because she had housing, but because she used marijuana in the shelter contrary to house rules. That not only shows a casual relationship with the truth; it also indicates that A.H. will use marijuana even when it jeopardizes her own housing. It lends credence to the Applicant’s allegations that she continues to use marijuana while in a caregiving role.

[46] She also failed to acknowledge that S.H.R.’s abysmal attendance records at school when in her care were concerning. When confronted with more than 30 absences and late arrivals in one term, she said that was not a problem. When asked about what type of attendance record would be a problem, she had no answer. As with C.R., her testimony was self-serving and lacked credulity when confronted with evidence of her own poor parenting.

[47] However, what is most remarkable about her testimony is not what was said, but what was not. She never addresses the complaints that S.H.R. has about her home. She never addresses what S.H.R. told the OCL investigator about the lack of engagement in her home and the fact that she leaves the children to watch television while she sleeps or smokes on the balcony. She never addresses the issue of marijuana usage while in a caregiving role (although she speaks of using it to address her pain issues). That evidence had been provided during C.R.’s case and she could have confronted it but she failed to do so. She does not seem to have anything to say about what the children want or need at this time.

[48] I did not find that A.H.’s testimony was more credible or reliable than that of C.R.. I was left with a situation where I could trust neither party’s testimony concerning crucial issues regarding the parenting of their two children.

Evidence of Crystal Hare and Amber Livingstone

[49] Both of these witnesses were called to corroborate A.H.’s testimony regarding family violence perpetrated on her by C.R..

[50] I found both of these witnesses to be credible and consistent. Specifically, both witnesses confirmed that there was family violence in that home and that it went one way only. Specifically, the evidence of Amber Livingstone was not based upon what was told to her by A.H., but by direct observation; she lived next door and heard it through the wall. She specifically testified that it did not go both ways and that C.R. was the party guilty of family violence when the parties were together.

Parenting Issues

[51] The evidence of both parties confirm that the major parenting issues involve both parenting time and decision-making. C.R. requests that the final orders in this matter, made in 2017 prior to A.H.’s breakdown, be changed to provide that he be awarded with primary care of both of the children. He also claims primary decision-making.

[52] A.H. asks that the children return to the long-term status quo prior to 2019. She says that she provided a good home for the children and that it was only disrupted because of the family violence that was inflicted on her by C.R.. She suggests that it would be unfair to allow C.R. to benefit from his own misconduct which is how she suggests that the status quo came about. And she also suggests that, in light of his abusive texts and treatment, that she be given decision-making concerning the children.

[53] Section 24(3) of the CLRA sets out the best interests criteria concerning any parenting plan for the child or children as follows:

(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.

[54] The only factor not relevant for consideration in this case would be the children’s cultural or religious upbringing; that was not mentioned by either party and neither parent gave evidence as to the children’s religion or cultural background. There is no evidence of any Indigenous background and therefore s. 24(3)(f) is irrelevant to this analysis. The remaining issues remain in play.

[55] There is no issue that there are communications difficulties for these parties. No one would seriously dispute that issue. Therefore, the issue of decision-making must take into account the residential arrangements for the children as determined by this court as the parent with primary care would also have to make the important decisions. The first issue is therefore to determine parenting time; the second issue would then be decision-making.

[56] However, firstly, the court must review the children’s best interests and where and by whom those interests can be met.

Best Interests

[57] The criteria set out in paragraphs 24(3)(a), (g), (h) and (i) of the CLRA are concerned with the respective abilities of the parents to meet the children’s needs. Paragraphs (b) and (d) concern the status quo and the importance of continuing that status quo. Paragraphs (c) and (i) are in respect of the willingness of the parents to encourage the relationship of the children to each other. Section 24(3)(e) requires the court to review the children’s views and preferences and finally paragraph (j) concerns issues of family violence as alleged by the Respondent Mother.

Respective Abilities of the Parties to Meet the Children’s Needs

[58] One major issue raised concerning the children’s needs relates to S.H.R.’s attendance record at school when in the care of the Respondent, as opposed to her attendance at school while in the Applicant’s care.

[59] The OCL investigator commented on S.H.R.’s attendance records which were reviewed by her as part of her investigation. In her report, Ms. Haroon summarized S.H.R.’s absences from school as follows:

• 2013: 21 days absent, 17 days late
• 2017: 26.5 days absent, 10 days late
• 2018: 21 days absent, 24 days late
• 2019: 20 days absent, 42 days late[^4]

[60] Ms. Haroon noted that the attendance records for S.H.R. while in the care of A.H. were a concern:

This attendance history for [S.H.R.] is concerning, as the prevailing standard indicates a 10% absenteeism rate is considered a chronic attendance concern. The concern is elevated when considering her academic achievement and that in most subject areas, she is approaching the provincial standard or in some subjects, not meeting the provincial standard.[^5]

[61] Ms. Haroon recommended shared care of the children on a 2-2-3 rotation, but only once A.H. was able to demonstrate that she could get the children to school on a regular basis.

[62] The attendance record for S.H.R., and indeed, R.H.R., have improved markedly since C.R. assumed care of the children.[^6] Although school attendance records are not conclusive as to stability in the Applicant Father’s care, they are at least one objective measure by which that can be ascertained. I can easily find from the evidence that the Applicant has improved on the Respondent’s record as to school attendance.

[63] That is corroborated by the children. In my judicial interview with them, they appeared happy and contented in the Applicant’s care. They have made friends in Orillia and enjoy living with the Applicant and their schooling in Orillia. There was no evidence at trial of any instability of the children in the Applicant’s care. This is in contrast to their lives in Barrie with the Respondent, when she had a breakdown as described by S.H.R. to the OCL investigator. S.H.R. spoke of “A.H. calling head lice, hearts and not letting them remove the lice from her head, leaving the balcony door open and leaving a food trail for animals to come into the apartment, and ‘thinking people were watching us and were after her.’” She told the OCL investigator that she was still anxious at the time of her interviews with the OCL investigator of being at her mother’s home and that she felt “safer” at her father’s. At the time of the report, she still felt anxious about whether her mother would revert to her former behaviours which is still not acknowledged by the Respondent today.

[64] I have already commented on the father’s move to Orillia. However, it is also clear that this move has also provided the children with stability. The children live in a rented suburban home and each of them has his or her own bedroom. They go to local schools and have done so since the move to Orillia in May, 2021.

[65] I find that the father has been able to provide a stable home for the children since 2019. Their stability is obviated by the school records which show performance in school and regular attendance, something not achieved in the mother’s care. Although C.R. was not an ideal witness at trial, the independent evidence confirms to me that the children are happy and contented living with their father and are presently living in a stable home.

Status Quo

[66] It is clear from the evidence and the statements from the children that they are happy and contented in the care of the father in Orillia. That status quo has been in place since May, 2021. The children have friends at their respective schools that they presently attend, S.H.R. at Twin Lakes Secondary School and R.H.R. at Regent Park Public School in Orillia. They enjoy their life there with the Applicant and they are contented with the status quo, which appears to be stable and beneficial to them.

[67] There is, however, case law that suggests that a status quo arrived at without consent or through self-help is no status quo at all: See Periera v. Ramos, 2021 ONSC 1737 at para. 38 where Jain J. adopted the statement of Cheung J. in L.M.B. v. F.J.D., 2020 ONCJ 239 where he stated at para. 31:

The legal status quo is not a status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party. (See Batsinda v. Batsinda, 2013 ONSC 7899, [2013] O.J. No. 6120 (Ont. S.C.J.), paragraph 28 and Kimpton v. Kimpton, [2002] O.J. No. 5367 (Ont. S.C.J.), paragraph 1).

[68] The children live with their father in Orillia and have done so since May, 2021. This status quo came about through two events. Firstly, in June, 2019, the children ended up in the care of the Applicant because of the mother’s breakdown. Then, in May, 2021, shortly after receipt by the parties of the OCL recommendations for shared care, C.R. moved to Orillia with the children thereby making those recommendations impossible due to the mother’s inability to drive.

[69] A.H. suggests that both of those events consisted of self-help by the Applicant Father. She firstly says that the events of June, 2019 were at the behest of the father. She blames him for calling the C.A.S. and she blames the police for entering her apartment without a warrant. She blames the police for the violent takedown that occurred and blames the psychosis that she suffered on the abuse heaped on her by the Applicant Father. Although she continues to use the medication that has been prescribed to her and remained involved with the Canadian Mental Health Association therapist, nowhere in her testimony did she acknowledge that she had a psychosis that required hospitalization.

[70] The C.A.S. worker, Gabby Pechman, did not testify at trial. However, the OCL investigator had directions and spoke both to both the C.A.S. and Royal Victoria Hospital. The C.A.S. confirmed that the mother called the police and told them that she had “concerns that she was being watched her home was bugged and that people had been telling her they were naked pictures of [S.H.R] on the TV”.[^7] When the police arrived, she assaulted a police officer and was taken to Royal Victoria Hospital. The hospital confirmed to the social worker that on June 30, 2019, A.H. was brought to the hospital by the police and “was found to be paranoid with agitation and pressure of speech.” The hospital reported that:

On examination she was disorganized with paranoia she was easily agitated she was provisionally diagnosed with psychosis, not otherwise specified. During examination she was expressing some grandiosity such as being Queen Elizabeth and her uncle being Steven Segal, at times she was yelling, she reports having a history of depression. On admission A.H. was prescribed Zyprexa which was increased to 5 milligrams in the morning and 15 milligrams at bedtime, and she settled on the medication.[^8]

[71] S.H.R., who was present when this occurred, confirmed with the investigator that she was still (in 2020) afraid when visiting A.H. that there would be a recurrence of the paranoia that she observed prior to A.H.’s breakdown.

[72] Melissa Allen, the CMHA worker (also not called as a witness) confirmed in 2020 with Ms. Haroon that A.H. continued to use the prescribed medication. The dosage has been reduced or increased based upon consultation with A.H. and her ongoing mental health. A.H. confirmed in her testimony that she has continued to take her medication although, as noted, she never acknowledged that she had a psychosis or that the events of June 20, 2019 were the result of anything other than wrongful intervention by the police and C.R..

[73] There was no independent evidence that A.H.’s breakdown came about as a result of family violence perpetrated on her by the Applicant Father. Although there was evidence of family violence that was cogent and credible, there was no medical evidence connecting it with A.H.’s psychosis. In fact, there has been no family violence since June 20, 2019 as the parties have remained separated since that time; Ms. Allen confirmed in 2020 that A.H. continued to need medication for her mental health and at the time of trial, A.H. was still using that medication.

[74] I do not find that this occurrence, when the children were placed with the Applicant, was a result of family violence by the Applicant Father. I also do not find that the Applicant exercised any sort of self-help on June 20, 2019. It appears that the police took matters in hand after being called by the Respondent Mother and took her to Royal Victoria Hospital under a Form 1. It also appears that the C.A.S. placed the children with C.R. as he was the only alternative at that time and he was, after all, the father of the children. He did not set this up or cause this to happen and there was no evidence that the children could be returned quickly to the Respondent after the psychosis event. In fact, Ms. Pechman told the OCL investigator that C.R. had tried to leave the children with the Respondent on an unsupervised basis after her release from the hospital and he was told, in no uncertain terms, that the Respondent’s access had to be supervised. This advice was reflected in the interim orders that were initially made in this matter.

[75] The second event, creating the second part of the status quo that exists today, is the Applicant Father’s move to Orillia with the children. They have lived there with C.R. since May, 2021.

[76] The OCL recommendations for shared care were issued on March 21, 2021. Those recommendations were strong and unequivocal. The only qualifier was that A.H. demonstrate that she was able to ensure the children’s consistent attendance at school. Those recommendations were issued in the face of S.H.R.’s expressed anxiety of being in the residence of the Respondent because of the June 20, 2019 breakdown.

[77] In questioning by me, the investigator confirmed that C.R. never discussed with her any potential move to Orillia when she prepared the report. She said that this would have been important for her to know as it would have made a difference to her conclusions.

[78] C.R. was certainly aware that A.H. did not have a vehicle as he was responsible for all of the transportation to and from her residence for parenting time. He was, I am sure, also aware that the move to Orillia would make the shared care recommendations by Ms. Haroon impossible to implement.

[79] C.R. says that he moved to Orillia because he could not find housing in Barrie when his lease was up and the housing in Orillia for himself and the children was superior to anything that he could have found in Barrie. That may have been a factor; however, I can also infer without a doubt that C.R. also decided to move to Orillia because it would both impair A.H.’s parenting time with the children and would also make any shared care arrangement impossible to implement because of A.H.’s lack of transportation.

[80] It is also important to note that at the time of the move, the parties were subject to the consent order of Jain J. made on January 14, 2020. That order provided that the parties were to “consult with each other prior to making major decisions relating to the child(ren)’s health, education and general welfare.” When asked on cross-examination if he had consulted with the Respondent about the move to Orillia, C.R. made a general statement that he “kept her advised” and took her to show her the children’s new home after the move. He provided nothing to corroborate that statement that he told her about the potential move. It is telling that no one ever said anything to the OCL investigator about any move to Orillia and it is doubtful that C.R. ever told the Respondent that he intended to move to Orillia or that he in any way consulted her about that move.

[81] In moving to Orillia, C.R. not only breached the interim order; he also breached the provisions of the Children’s Law Reform Act concerning relocation with the children.[^9] Those provisions provide that the Applicant should have given 60 days’ notice of the move along with particulars of the move: see s. 39.3(1) of the CLRA. This provision is intended to give the person affected by the move an opportunity to bring the matter before the court to adjudicate whether or not the relocation is in the best interests of the children. There was no excuse for failing to comply with the legislation; C.R. was represented by counsel throughout and there is no issue that this would have been a relocation under the definition provided under s. 18(1) of the CLRA which defines it as:

a change in residence of a child, or of a person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child, that is likely to have a significant impact on the child’s relationship with,

(a) another person who has decision-making responsibility or parenting time with respect to the child or is an applicant for a parenting order in respect of the child…

[82] In light of A.H.’s transportation issues, it is unquestioned that the relocation would have a significant impact on her parenting time with the children. In fact, it did as C.R. eventually stopped providing the Wednesday evening parenting time that A.H. was entitled to under the January 14 order.

[83] It is therefore clear that if I was to base my finding solely on how the move came about, I would not find a legal status quo. As judges we often admonish litigants for litigating a matter by way of numerous interim motions. That is not the way things are done; matters should be conferenced and moved to trial on a timely basis. However, in certain circumstances, interim motions should be brought as a last resort and this was one case where a motion should have been argued.

[84] Although A.H. brought an urgent motion to reverse the move, it was adjourned on June 28, 2021 by Casullo J. to a settlement conference on August 25, 2021 due to lack of urgency. That settlement conference did not go ahead because Ms. Gendron could not obtain instructions from A.H. at the conference. Justice Douglas endorsed that A.H. was in touch with her counsel, stating that there were “other factors” at play that and there “is no fault to be ascribed”. However, there does not seem to be a sense of urgency on the mother’s part in having the move set aside as the adjournment was to January 28, 2022 when the children would have been in the middle of the next school year, this time in Orillia. The mobility motion was never returned again to court. And there is also no evidence that the Respondent took any steps to enforce the January 14 order when the Applicant deprived A.H. of her Wednesday parenting time by text sent on April 21, 2022.

[85] At the very least, if this was urgent, A.H. could have provided instructions to her lawyer to address this issue at the August 25 settlement conference or requested that the matter return to court to argue the motion. She did neither. A.H. effectively acquiesced in this situation by not taking any further steps in the litigation to reverse the move and in failing to provide her solicitor with instructions for the settlement conference. She also failed to provide evidence at trial as to her attempts to reverse the move and enforce the court orders that the Applicant was in breach of. If she wanted to have the children return to Barrie, she should have done something on a timely basis, especially when the Applicant later deprived her arbitrarily of her Wednesday evening parenting time under the January 14 order. By not doing so, I can only find that she acquiesced in the status quo arbitrarily created by the Applicant Father. In the meantime, the children adapted to their move to Orillia and made a life there.

[86] The net effect is that, from the children’s perspective, a status quo eventually formed that they became content with. It has been in place now for nearly four years. They made friends and contacts in their neighbourhood and in their school. R.H.R. enthusiastically told me about his best friend who lives near to him. S.H.R. has friends in her school and says that she no longer has any friends near her mother’s home in Barrie; she said that those friends now live outside of Barrie, some in Oro-Medonte. The children enjoy their schools and live in a comfortable home. They are in a stable situation. Largely because A.H. acquiesced in the relocation to Orillia, the children now have lived in a long-term status quo which they are largely satisfied with. It is unquestioned that any change in that situation, such as a return to Barrie, would be disruptive and would result in a loss of friends, stable schooling and housing and a community that they enjoy living in. Their status quo militates in favour of the children remaining where they are and in primary residence remaining with the Applicant.

Willingness of Each Parent to Foster the Children’s Relationship with the Other

[87] It is undoubted that C.R. does not think very highly of the mother of his children. The text messages sent by the Applicant to the Respondent were replete with insults, abusive statements and berating behaviour by the Applicant. It is undoubted that these texts along with the actions of the Applicant indicate his unwillingness to encourage any relationship between the children and the Respondent.

[88] The evidence concerning the Respondent’s actions are less clear. There were no similar insulting or abusive text messages from the Respondent to the Applicant entered into evidence. However, her behaviour during parenting time and her poor relationship with her daughter are indicative of the fact that she fails to take any meaningful steps to foster her own relationship with the children.

[89] A.H. has a poor relationship with S.H.R. That was clear both from the OCL investigative report and from my own interview with S.H.R. A.H.’s relationship with R.H.R. is a lot better. The major question for the court is the reason for the Respondent’s problematic relationship with her daughter.

[90] As I stated, C.R. has an extremely negative view of A.H.. He makes this clear whenever he can. His text messages were abusive and insulting. A sampling is as follows:

a. When in an argument over the Respondent’s changing of the password for Netflix and the costs of a grad dress for S.H.R., the Applicant says to A.H., “Way to say a big FUCK YOU to our kids.” He later in the same exchange says that “Your broke, you can't even afford to have your internet on everyday for fuck sakes”; “Way to go MOM”.[^10]

b. In one text message exchange on April 21, 2022, C.R. advises the Respondent that the Wednesday parenting times “aren’t going to work” and advises that they will no longer happen. The Respondent pleads with the Applicant to obey the court order and the Applicant says not to get “all flustered” about her loss of parenting time. It has to be asked whether C.R. would get “flustered” if he lost parenting time with the children. In any event, the texts confirm that the Applicant willfully breached the parenting time order of January 14, 2020 and obviously did not think that the Wednesday parenting time with the children was sufficiently important to be adhered to.[^11]

c. It is apparent from the text messages that C.R. becomes upset when A.H. asks him to bring “my children” for parenting time; he accuses her of being possessive. However, he refers to the children as “my children” in other text messages.

d. C.R. makes use of emojis in communicating with A.H., using a snake emoji when referring to her and later a laughing face emoji when commenting on her input concerning parenting the children.

[91] This negative view is confirmed in other texts and in his actions. At one point in the texts, he says that he is going to call S.H.R. as a witness in the proceeding to give evidence. During trial he attempted to provide the court with photographs taken by S.H.R. of the Respondent’s residence. He became quite upset when I refused to allow them in, which I did both because he did not take the pictures and as well because it is clearly wrong to proffer evidence produced by the parties’ children. The OCL report and my interview confirmed that S.H.R. has a negative view of the Respondent and it is apparent from the Applicant’s actions that this is encouraged by him.

[92] Notwithstanding claims to the contrary by the Applicant and his sisters, there is no evidence that the Respondent reciprocated with equally offensive or insulting texts or emails. There was evidence that A.H. attempted to interfere with S.H.R.’s interview with the OCL investigator, listening to the interview and then quizzing S.H.R. as to the interview. As well, there is also evidence that the Respondent’s actions also impair her own relationship with the children. There was evidence in the OCL report that the Respondent sleeps for much of the day when the children are visiting and did not participate in a lot of activities with them. There was also evidence that she smokes marijuana when in a caregiving role and smokes cigarettes and marijuana, not only on the balcony as she claims, but also in the home. During the visit that the OCL investigator had with the children in her home, S.H.R. refused to come out of her room during the visit and described her relationship with her mother as “meh”. My interview with her confirmed that this continues be the case today, with her again saying that her mother sleeps in her room for much of the time she and R.H.R. are visiting. It is unclear to me whether S.H.R.’s negative views about her mother are encouraged by the Applicant or whether they result from the Respondent’s own lack of engagement with the children when they are visiting.

[93] However, it is clear to me that the Applicant does not encourage the children’s relationship with their mother. There is little evidence, on the other hand, that the Respondent is similarly negative about the children’s father or that she would not encourage the relationship with their father if she were given primary decision-making and care.

Views and Preferences of Children

[94] At trial, the only evidence that was presented of the children’s views and preferences was the OCL report. The investigator interviewed both children. Those interviews took place in 2020, more than three years ago. R.H.R. was only four and was too young to express any views as to where he wanted to live and as to his parenting time. S.H.R.’s feelings about her mother could best be described as ambivalent. At the time that the OCL became involved, S.H.R. and R.H.R. were residing with their father pursuant to the January 14, 2020 order and S.H.R. was content with that situation:

Of the parenting time schedule, [S.H.R.] reports that she likes it the way it is and would not want to see anything changed. [S.H.R.] could not detail the current schedule. [S.H.R.] reports that she continues to be scared and worried when she is at her mother's home. She also stated that when she is at A.H.'s home, she and [R.H.R.] don't do anything with A.H., they mostly spend time in their rooms. [S.H.R.] reports that she feels stress when going to A.H. because of the way A.H. takes care of them, again citing that she and [R.H.R.] spend a lot of time together, that A.H. visit friends in the building, or is on the balcony smoking, and that A.H. does not like her to call C.R. when she is at her home. [S.H.R.] reports that she feels like her mother doesn't love her anymore and she wishes that her mother could go back to acting the way she did when she was younger. Upon further inquiry, indicated that she would enjoy the visits more if their mom would spend time with them, when she and [R.H.R.] visit. It would also be nice and let her speak to C.R.. [S.H.R.] further reported that she would like the schedule to remain the same as C.R. helps her with school-work, whereas A.H., does not know how to help her.[^12]

[95] Little evidence was provided to me during the trial of the children’s current views and preferences. The investigation by the Office of the Children’s Lawyer was stale dated and C.R. had moved to Orillia, thereby frustrating the recommendations under that report. As noted, at my suggestion, I permitted the parties to make submissions as to conducting a judicial interview of the children under s. 64 of the CLRA. Neither party took great exception to me doing so.

[96] I had waited until the evidence was in before requesting submissions as to a judicial interview. That was an approach similar to that of Speyers J. in Demeter v. Demeter, 1996 CanLII 8111 (ON SC), [1996] O.J. No. 1470 (Gen. Div.) [at para. 1]:

I deferred making a decision on whether to conduct such interview until I heard all of the evidence in this trial. I thought it advisable to wait and see if a current and accurate account of the views and the preferences of the children would emerge from the evidence during the course of the trial before deciding whether to interview the children.

[97] Judicial interviews are one means by which the children’s views and preferences may be provided to the court: see for example Eustace v. Eustace, [2016] ONSC 5004 [at para. 104] where Emery J. discussed the utilization of a s. 64 interview in a parenting trial under the Divorce Act:[^13]

Although there is no comparable section in the Divorce Act, I found Section 64 to be applicable as J.M. is the subject of the conflict between his parents. His views and preferences are of central importance as he is 13 years of age and aware of himself and his place in the world. Section 24(2)(b) directs the court to consider the views and preferences of the child if they can be reasonably ascertained. J.M.’s views and preferences were therefore given, and he was clearly heard.

[98] In Stefureak v. Chambers, 2004 CanLII 34521 (ON SC), [2004] OJ No 4253 (S.C.J.), Quinn J. outlined in detail the various means by which the court can apprise itself of the children’s views and preferences. One of those methods discussed was through an interview with the children pursuant to s.64 of the CLRA [at para. 64]:

If a judge does decide to interview the child privately in chambers the case law provides some clarification of what use may be made of that interview. The primary concern is ensuring that the judge does not allow the comments of the child to be the sole basis of the judgment while disregarding other evidence of what may actually be in the child’s best interests. The views or preferences of a child are not to be confused with the child’s best interests. However, the judge must make an order that is practical. For example, when dealing specifically with teenagers, an order should reasonably conform with the wishes of the child. Although the preference of a teenager may not be in absolute accord with his or her best interests, a court may defer to the wishes of the child, as it would be undesirable to force a teenager against his or her wishes to live with a parent. Attempting to force a teenager may even be futile. Ultimately, the weight to be attached to any expression of preference depends on the facts and is a function of age, intelligence, apparent maturity, and the ability of a child to articulate a view.[^14]

[99] In this case, the interview of the children took place at the Orillia courthouse on the record on December 20, 2022. As noted above, I did not determine whether a judicial interview was appropriate until the evidence was in. I determined that there was little or no evidence as to the children’s present views and preferences led at trial. R.H.R. had not been able to express views and preferences to the OCL investigator in 2020 because he was only four, and he now was able to do so as he is now seven. I offered, as a safeguard, an opportunity to either party to lead evidence concerning the children’s views and preferences after I reported to the parties as to results of the interview. Neither party elected to lead further evidence.

[100] At the interview, S.H.R.’s views and preferences were consistent to those expressed to Ms. Haroon in 2020. If anything, her relationship with her mother had deteriorated. She confirmed that her mother sleeps for much of the day and smokes marijuana and cigarettes, not only on the balcony, but on the couch in the living room. She is often left to take care of R.H.R. and watches television while he plays on his iPad. She is bored while visiting with her mother and would prefer not to visit; she only does so because she is protective of R.H.R. and wants to ensure that he is safe during his visits. It is to be noted that in 2020, she expressed anxiety in visiting her mother because of her observations of her mother’s breakdown a year earlier; now she is anxious visiting her mother because of the marijuana usage.

[101] I asked her about whether anyone had asked her to take the pictures that of her mother’s residence that the Applicant sought to enter into evidence. She said that she did it because she was worried about the drug use and the safety of the residence. She said that her father did not ask her to take the pictures (but did not explain how he came into possession of those pictures). She also confirmed that no one told her what to say and that she does not talk to her father about the case; her confidantes are her aunts and her uncle.

[102] I had mentioned that S.H.R.’s relationship with her mother had deteriorated. I say this because she volunteered that although she loves her father, she does not love her mother. Her affect was of a serious, sad adolescent and perhaps for good reason.

[103] R.H.R. was an enthusiastic and happy young person. He was excited about seeing his mother and confirmed that he enjoyed the visits. He wants to continue visiting his mother and living with his father. He confirmed that he enjoyed his school in Orillia (Regent Park Public School) and his best friend was Liam who is also at his school, lives near him and who he visits when his father lets him.

[104] He confirmed that no one told him what to say and that those were his views. His father told him not to fool around during the interview, but did not tell him what to say.

[105] It is clear that both children’s views and preferences are to live with their father. R.H.R. wants to continue visiting with his mother but S.H.R. does not. S.H.R. says that she will continue to visit her mother as long as R.H.R. continues to visit; however, she would prefer not to go there because it is boring.

[106] I could not confirm R.H.R.’s consistency as he expressed no preferences during the OCL interview. S.H.R.’s views were consistent with the 2020 interviews with the OCL investigator; if anything, she has less of a relationship with her mother than she did at that time. It is clear that both children want to continue living with their father.

[107] S.H.R. is now 15 years old and will be 16 on November 1 this year. I asked Ms. Gendron during submissions as to whether she was seriously submitting that S.H.R. should be forced to live with her mother under the circumstances. She understood that, as stated by Quinn J. it was probably unrealistic to force a teenager to live with a party against her wishes, but suggested that it may be appropriate to split the children and to return R.H.R. to his mother while S.H.R. remained in her father’s care.

Family Violence

[108] Family violence is defined in s. 18(1) and (2) of the CLRA as follows:

“family violence” means 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;

(2) For the purposes of the definition of “family violence” in subsection (1), the conduct need not constitute a criminal offence, and includes,

(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

(b) sexual abuse;

(c) threats to kill or cause bodily harm to any person;

(d) harassment, including stalking;

(e) the failure to provide the necessaries of life;

(f) psychological abuse;

(g) financial abuse;

(h) threats to kill or harm an animal or damage property; and

(i) the killing or harming of an animal or the damaging of property;

[109] Section 24(4) of the CLRA instructs the court to address the following factors in considering the effects of family violence on a parenting order:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

[110] The Respondent gave evidence that the Applicant was physically and mentally abusive. She testified that the abuse started soon after the parties began cohabitation in 2008, and after she was pregnant with S.H.R. She recounts a number of traumatic incidents that she can recall. She says that the Applicant kicked, punched and slapped her. She recounted an incident where the Applicant pulled her out of bed by the ankles onto the floor. She said that at one point the Applicant flicked cigarette ashes onto her stomach when pregnant with S.H.R. On October 21, 2009, she eventually had to flee her home and go to the shelter after an incident where she says that the Applicant Father “squished” her head. She told the shelter staff the following about that incident and others in 2009:

On one occasion she was thrown against the wall. She reports [C.R.] has assaulted her with her infant daughter in her arms. During a recent assault [A.H.] reports blacking out and awakening to her child screaming in terror. [A.H.] said she sustained a black eye, a split lip and an injury to her left leg. While in residency [A.H.] received medical assistance through Soldier's Memorial Hospital Sexual & Domestic Assault Treatment Centre in Orillia for physical injuries sustained during that assault.[^15]

[111] A.H. testified that, after going to the shelter, the Applicant kept coming around, resulting in three lockdowns. She eventually had to leave to shelter due to marijuana use, but by that time had a public housing unit to move into. The Applicant was charged with four assaults as a result of the October 21, 2009 incident.

[112] After A.H. moved into her new home, the Applicant moved back into her residence notwithstanding the no-contact order made as a result of the criminal charges. A.H. testified that the abuse continued and that she became pregnant with R.H.R. as a result of a sexual assault by the Applicant. Both parties confirm that they were still living together, on and off, right up until her breakdown in June, 2019, which she blames on the abuse suffered at the hands of C.R.

[113] The Applicant denies any sort of family violence on his part. He says that the relationship was tumultuous but that both parties fought and that the Respondent gave as good as she got.

[114] There is very strong evidence, however, that the Applicant did perpetrate family violence against the Respondent. In October, 2009, C.R. was charged with assaulting A.H. He eventually pleaded guilty to one offence.[^16] He said in testimony that it “did not mean that he did the crime” but pleaded guilty to end criminal proceedings that he said felt like a three year battle and to avoid the chance of jail time from the assaults. As I mentioned above, I found this to be one reason why C.R. was not a credible witness; if what he testified to at this trial was true, he lied under oath when he pleaded guilty to that assault. He failed to acknowledge that these assaults were abuse to be considered under the CLRA, instead saying that the Respondent had been physically and mentally abusive to the children.

[115] In addition, the Respondent Mother’s evidence on family violence after 2009 was corroborated by her neighbour, Amber Livingstone, who testified at trial. She has the apartment next to that of the Respondent and advised that she could hear the verbal abuse by the Applicant through the wall. She said that she heard the Applicant tell the Respondent to “shut the fuck up” and that he called her “dumbass” and “stupid”. She did not observe (or at least did not testify as to) physical abuse but both she and the Respondent’s sister confirmed that, the Respondent told them both that the Applicant pulled out a chunk of her hair during an assault prior to that breakdown.[^17]

[116] Ms. Livingstone also confirmed that A.H. did not “give as good as she got”. She says that the insults and verbal abuse was a one-way street, from C.R. to A.H. She was not shaken when cross-examined on that issue.

[117] I therefore find that, on the balance of probabilities, that the Applicant was guilty of perpetrating family violence against the Respondent as defined under the CLRA. He committed physical and sexual abuse against A.H. He stalked the Respondent at the shelter causing several lockdowns. Furthermore, as corroborated by Ms. Livingstone, there was verbal abuse that she observed throughout the cohabitation of the parties at A.H.’s residence until the police and C.A.S. involvement in 2019.

[118] The family violence issues lives on today. A number of text messages were put into evidence by both parties. As noted, when this occurs, the Respondent shuts down. In a number of texts, she pleads with the Applicant to stop fighting. It appears in those texts that she cannot stand her ground when communicating with the Applicant about the children and I attribute that to the abuse suffered at C.R.’s hands.

[119] The major issue is how this family violence can affect any parenting order to be made by me in this proceeding.

Parenting Order

[120] C.R. was a poor witness and I have found that he was an abusive partner to the Respondent. He freely breaches court orders without any good excuse. However, according to the children and the Applicant’s family members, he is a good father. There is a lengthy status quo with the children living in Orillia with the Applicant and this was effectively acquiesced to by the Respondent Mother. The children enjoy living with their father and S.H.R. is less than enthusiastic about her relationship with A.H. The issue is whether C.R.’s abusive treatment of the Respondent and his bad behaviour warrants a change in the primary care of the children. This involves a balancing of the best interests criteria discussed above.

Parenting Time

[121] The parties in this case have little ability to communicate with one another. Primary residence of the children will therefore largely determine decision-making as the only parent who will be kept advised of how the children are doing would be that parent with whom the children live. I must therefore determine parenting time prior to deciding on decision-making.

[122] The OCL investigator, Ms. Haroon, had recommended in 2021 that the parties share care of the children on a 2-2-3 basis. She was never advised of the Applicant’s plans to move to Orillia when she recommended this and A.H. has not resolved her transportation issues. Indeed, it is improbable under the circumstances that she could afford a vehicle even if she wanted to. The Applicant’s move to Orillia with the children has largely frustrated the preferred option of the OCL investigator.

[123] I am therefore left with the option of either moving the children to Barrie to live with the Respondent or alternatively leaving the present status quo in place.

[124] As noted above, the Applicant Father is guilty of having been an abusive partner and of family violence as defined by s. 18 of the CLRA. He has behaved unreasonably and it might easily be surmised that he has acted in bad faith in moving to Orillia and changing the children’s schools without consulting with the Respondent in breach of the January 14, 2020 interim order. He cancelled the Wednesday parenting time to the Respondent, again contrary to the January 14, 2020 order of Jain J. The breaches of the order were purposeful and the Applicant knew it to be so; A.H. points out in a text that he is acting in contravention of a court order and C.R. does not seem to care. That goes beyond unreasonable behaviour to bad faith behaviour. If, in addition, he moved to Orillia to frustrate the OCL recommendations for shared care, that is also, in my view, clear bad faith behaviour.

[125] From an adult perspective, the Applicant is a bad actor. That is not the case, however, for the children. As far as they are concerned, their father has provided them with a stable home in which they are happy and contented. They have friends at their respective schools and they are doing well. The attendance records at school are superior to the attendance records while in the Respondent’s care prior to 2019. There is now no need for an Independent Education Plan (IEP) for S.H.R. as was the case when she was residing with the Respondent.

[126] The children have expressed that they like living with their father in Orillia and do not want that to change. S.H.R.’s views and preferences have not changed since being interviewed by Ms. Haroon in 2020. In fact, S.H.R. is now more unequivocal that she does not want to visit her mother and surprisingly said that she does not love her mother like she loves her father. Her complaints about the parenting time with her mother remain the same as they were in 2020; there is little for her to do at A.H.’s residence and her mother sleeps much of the day away leaving S.H.R. to watch television while R.H.R. plays video games. S.H.R. also does not like the fact that her mother continues to smoke marijuana and cigarettes in the home. Indeed, if A.H. smokes marijuana while the children are there, she is acting contrary to a primary recommendation of the OCL investigator. She ought to know better.

[127] In effect, A.H. acquiesced to the present status quo. Although she was unsuccessful with her urgent motion, the settlement conference could not proceed after that motion because A.H. failed to provide instructions to her lawyer. She did not renew the motion after the settlement conference was adjourned (which she could have under the rules) and did not take steps to enforce the order when deprived of her Wednesday parenting time in April, 2022. The children have now settled in Orillia in their new schools as a result. They wish to remain where they are.

[128] During submissions, I asked Ms. Gendron how the court could order S.H.R. back into the care of the Respondent when she said that she did not even want to visit her mother. Ms. Gendron understood the constraints in this matter; S.H.R. is 15 and well able to make up her mind as to what she wants. However, Ms. Gendron suggested that the children could be, at the very least, split, with one child, S.H.R., living with the Applicant and R.H.R. living with the Respondent. This I will not do. There was no evidence from either party as to how this could be in the children’s best interests. Neither party gave evidence as to how the two children get along or as to the relationship between these two siblings. It is also clear to me that S.H.R. has decided to act protectively concerning R.H.R. when she told me that she would continue to accompany R.H.R. on his parenting time at his mother’s. There is no evidence that splitting the children would be, in any way, in their best interests and I decline to make such an order.

[129] I am therefore not going to disturb the present status quo which is working for both of the children. The only part that is not working is the parenting time for S.H.R. She goes but only because R.H.R. goes. She does not enjoy the visits. Her relationship with her mother is deteriorating.

[130] Therefore, the Applicant shall have primary care of the children. The Respondent shall continue to have her parenting time every second weekend according to the consent order of Justice Jain made on January 20, 2020. No submissions were made as to whether A.H. wished to return to her Wednesday overnight parenting time, largely because A.H. was not willing to acknowledge that the result of this trial might be to permanently grant C.R. with primary residence of the children.

[131] C.R. has only offered parenting time on weekends. I am going to continue Justice Jain’s order for the weekend parenting time, which appears to be Friday night to Monday mornings. C.R. does not offer in his draft order a return to the Wednesday overnight parenting time as ordered by Jain J. on consent on January 14, 2020. Neither child spoke of it and it is clear to me that S.H.R. would probably not attend on Wednesday overnights, especially considering the fact that she is in high school and has a regular homework load as a result. I decline to order the Wednesday parenting time unless A.H. can arrange to transport the children for this purpose.

[132] I am going to order that marijuana not be used by either party while in a caregiving role. I am also going to share care of the children during the Christmas and March break school holidays as set out in Justice Jain’s order and that summers shall be shared on a week about basis.

[133] S.H.R.’s parenting time shall be according to her wishes. I am not going to force her to attend considering her clear views and preferences.

[134] C.R. moved the children to Orillia without consultation. He shall be responsible for transportation for all parenting time other than the Wednesday overnights which shall be the Respondent’s responsibility.

[135] There shall be parenting orders as per para. 3, 4, 6, 7 and 8 of the draft order submitted by the Respondent.

Decision-making

[136] In both of their draft orders, counsel have suggested that there be joint decision-making with each of their respective clients having the final say over major decisions.

[137] The case law has been consistent for years that, for a court to order shared decision-making, it is necessary for the parties to have a historical ability to communicate with one another: see for example Kaplanis v. Kaplanis, 2005 CanLII 1625 (ON CA), [2005] O.J. No 275 (C.A.). That is plainly not the situation in the present case as evidenced by the text messages entered into evidence. The most recent attempt to discuss an issue was a series of text messages initiated by the Respondent Mother who was concerned about S.H.R. having a new boyfriend and raising the issue of whether S.H.R. should be taking birth control. When that concern was raised by the Respondent, C.R. rejected her concerns, stating “do you feel like you gotta push sex on her all the time.”[^18] C.R. admitted on cross-examination that he did not engage in a discussion with the Respondent because he felt it unnecessary to provide S.H.R. with birth control.

[138] This is not the only time that the Applicant has not discussed decisions to be made about the children when he should have. As discussed above, C.R. decided to move to Orillia and change the children’s schools without consultation with A.H. Although C.R. claims to have consulted with A.H., he offered no evidence that he, in fact, did so. He also offered no specifics as to when and how he consulted with A.H. concerning that issue. In essence, he was already subject to a requirement suggested in his draft order that he consult with the Respondent Mother on major issues and he decided not to adhere to that order.

[139] I do not believe that a provision requiring consultation will be obeyed by C.R. And I believe that even if he seeks out A.H.’s position on a major decision, it is doubtful that he will pay any attention to her input if she disagrees with him.

[140] However, that leaves very few options for decision-making concerning these children. It would not be practical to provide decision-making authority to the Respondent Mother as she has a poor relationship with S.H.R. and the children do not live with her. It would be impossible for A.H. to make informed decisions about the children under the circumstances. Even if I could order it, there are no resources between these parties to retain a parenting coordinator. Unfortunately, the only person who is in a position to make a reasonably informed decision concerning the children is the Applicant.

[141] Firstly, he has a good enough relationship with S.H.R. to discuss any of her concerns regarding any decision to be made. Returning to the birth control issue, it is my impression that S.H.R. would not discuss that issue with her mother. Certainly, there was no hint of a discussion on that issue between the Respondent and S.H.R.. The only person that S.H.R. would possibly discuss that issue with (other than the Applicant’s sisters) would be the Applicant. Because of this, and because most major decision are normally made in consultation with the children, the Applicant cannot be removed from the decision-making process.

[142] Moreover, and related to this, S.H.R. lives with the Applicant and will continue to do so. I suspect that S.H.R. will be spending less and less time with the Respondent as she matures. R.H.R. also lives with the Applicant and again he is privy to the major issues concerning R.H.R. There is little issue that it is only the Applicant who will be able to discuss those issues and make major decisions concerning S.H.R. and R.H.R.

[143] The only option I am left with is the option suggested by the Applicant in his draft order. I am not going to give the Applicant exclusive rights to determine educational decisions. There is no evidence that the Respondent did not make proper educational decisions when the children were in her care; she only failed to get the children to school often enough. If the Applicant fails to consult, the Respondent shall have the right to a summary determination of the issue by the court on three days notice to the Applicant.

[144] I realize that this will appear to the Respondent that I am rewarding the Applicant’s bad behaviour. That is not my intent. The goal of any parenting order is not to reward either party but to take a child centred approach to ensure that the children’s best interests are considered and addressed. Ultimately, because of the lengthy nature of this litigation and the long-standing status quo, the best interests of the children are best met through the parenting plan proposed by the Applicant.

[145] Day to day decisions will be with the person with whom the children are with at the time the decision must be made.

Child Support

[146] During trial, the Applicant sought child support from the Respondent. He seeks to impute minimum wage to the Respondent and receive support from her based upon that imputation.

[147] It is common ground that if income is not imputed, the Respondent’s income is insufficient to pay any meaningful guideline child support. The Respondent’s last financial statement indicates that her income from ODSP is only $14,796 per year which would only give rise to child support of $163 per month.

[148] The issue of imputation of income lies under s. 19 of the Child Support Guidelines. If the Applicant can prove that the Respondent is intentionally underemployed, he can then seek that income in an appropriate amount be attributed to her.

[149] This has been an issue of long standing for the Applicant. He says that it was a source of frustration for years during cohabitation. The Respondent subsists on payments from the Ontario Disability Support Program. To be on that program, it is not in dispute that the Respondent must have proven to the Program’s satisfaction that she was unable to work. She says that she is unable to work because of a combination of arthritis, fibromyalgia and psoriasis. She says that she attempted to work on several occasions, but was unsuccessful and was forced to leave.

[150] C.R. dismisses the Respondent Mother’s health issues and says that the only condition that he knew about was her psoriasis. He says that the Respondent can easily work and should do so to assist with the costs of the children.

[151] C.R. therefore seeks to impute income to A.H.. He says that she is intentionally underemployed as defined in s. 19(1)(a) of the CSG. However, it is not up to the Respondent Mother to prove that she cannot earn income. The person seeking to impute income has the initial onus to make a prima facie case or lay an evidentiary foundation to the imputation of income to the payor spouse: see Homsi v. Zaya, 2009 ONCA 322 where Epstein J.A. says at para. 28 that “The onus is on the person requesting an imputation of income to establish an evidentiary basis for such a finding.” Only once that evidentiary foundation has been established does the onus shift to the person against whom the imputation is sought: see Bekkers v. Bekkers, 2008 O.J. No. 140 (S.C.J.) and Joy v. Mullins, 2010 ONSC 3368.

[152] In the present case, the Applicant has not done much more than make allegations that there is nothing wrong with the Respondent and that she can work. He had no evidence other than his own views about the Respondent which were never positive. The issue of the Respondent working appears to have been an ongoing disagreement between the parties that went on throughout cohabitation and now plays itself out at this trial. However, the Applicant offers no evidence other than bare allegations that the Respondent is able to work and is intentionally underemployed.

[153] The Respondent confirmed in cross-examination that she has not worked since 2007 when she worked at Laura Secord. She attempted to obtain a job at a construction company but says that she was dissuaded from doing that by the Applicant who was living with her at the time. She says that the work involved holding a sign and was not physical labour. Other than Laura Secord and babysitting, the Respondent has always relied upon public assistance of one form or another since 2007. She says that she now cannot work for the reasons previously given.

[154] The Respondent failed to lay any evidentiary basis for imputation of income against the Respondent. Moreover, the Applicant has not made a claim for child support in his application and also did not seek imputation of income. That claim is therefore dismissed.

[155] Although the Respondent would normally be required to pay child support to the Applicant in the amount of $163 per month, the Applicant failed to request child support in his Application. That Application came to be treated as a motion to change but was never amended. Parties are bound by the pleadings they file and the Respondent was only required to respond to claims made by the Applicant in his pleadings. There shall therefore be no order as to child support.

[156] The Applicant also did not ask for a rescission of arrears in that Application. The statement of arrears from the Family Responsibility Office shows that, as of December 6, 2018, there were arrears owing by the Applicant to the Respondent of $5,820.00. It was shown as being “withdrawn” on the FRO account. No information has been provided as to whether this amount of child support is owed to the Ministry and as far as I can see, no Confirmation of Assignment form was filed to determine who the arrears are owed to. I therefore make no order as to rescission of arrears.

[157] Based upon the state of the Applicant’s pleadings and his failure to obtain a statement from the Ministry as to assignment of the child support owing to the Applicant, there shall be no order as to child support or as to rescission of arrears.

[158] I am going to confirm that support come to an end as of June 30, 2019. Again, this was not requested by the Applicant in his application. However, the children’s situation living with the Applicant is now permanent. It also goes without saying that it is implicit in any order for child support that it comes to an end where the children no longer live with the recipient who no longer has to bear the costs of the children. I am not going to make the Applicant amend his pleadings to make an order that goes without saying.

Order

[159] There shall therefore be a final order to go varying the final parenting orders of August 15, 2016 and July 12, 2017 as follows:

a. C.R. and A.H. shall have joint decision-making of the two children, S.H.R. born November 1 2008, and R.H.R. born May 5 2016.

b. The parties shall consult each other prior to making major decisions relating to the children's health, education, and general welfare. Should the parties be unable to agree C.R. shall have the final decision-making authority. Provided that if there is a disagreement that cannot be resolved, either party shall be permitted to place that decision before a judge of this court summarily by way of motion on three days’ notice to the other party.

c. The parties shall have the right to consult with and obtain information directly from the children's teachers, doctors, or other professionals about the health, education and general welfare of the children.

d. Both parties shall keep each other informed about any significant issues relating to the children that arise during their time with the children.

e. Neither party shall be able to remove the children from the province of Ontario without the written consent from the other party which shall not be unreasonably withheld.

f. Neither party shall speak negatively about the other party in the children's presence, and both shall make their best efforts to prevent all third parties from doing so as well. Furthermore, neither party shall discuss this court case or other adult issues involving the parties with the children or defame the other party on social media or in the general public.

g. Both parents will have reasonable telephone access with the children while the children are in the care of the other party. Neither party shall restrict telephone/skype/facetime or snapchat access between the children and their parents.

h. Day to day decisions shall be made by person with whom the children are with at the time the decision must be made.

i. Neither party shall consume marijuana while in a caregiving role for the children.

j. The children shall have their primary residence with the Applicant Father.

k. The children shall have parenting time with the Respondent as follows: i. Every other weekend from Friday 5:00 p.m. until Monday morning at 8:00 a.m. unless parenting time falls on a long weekend when it shall be extended to Tuesday at 8:00 a.m.; ii. Midweek parenting time from Wednesday at 5:00 p.m. to Thursday morning at 8:00 a.m. with the children to be delivered to school if the Respondent can arrange for transportation to pick up and deliver the children for that parenting time; iii. Week about during the children’s summer school holidays; iv. The Applicant to have Father’s Day irrespective of the parenting time schedule and the Respondent to have Mother’s Day irrespective of the parenting time schedule. v. The parties shall equally share and alternate the Christmas and March Break holidays as arranged in advance between them, with consideration given to their work schedules and holiday traditions. The parties shall use their best efforts to mutually agree on the details of this no later than 14 days prior to any given holiday, but if no agreement can be reached either party may refer this matter to the court summarily on three days’ notice for a judicial determination. vi. Such further and other parenting time as the parties may agree. vii. Other than the Wednesday overnight parenting time, the Applicant shall provide all transportation for the children’s parenting time. viii. Notwithstanding this schedule, S.H.R.’s parenting time shall be according to her views and preferences.

l. Child support payable by the Applicant under the order of Eberhard J. dated August 28, 2017 shall terminate as of June 30, 2019.

m. As child support was not requested by the Applicant in his Application, and without prejudice to the Applicant commencing child support proceedings, there shall be no order as to payment of child support by the Respondent.

n. As there was no request by the Applicant to rescind arrears, and without prejudice to the Applicant requesting relief by way of a motion to change, there shall be no order rescinding arrears of child support owed by the Applicant to the Respondent.

[160] I have commented on the Applicant’s unreasonable litigation behaviour above, which I believe crossed the line at times into bad faith behaviour. Although the Applicant was the successful party in this litigation, he is reminded that he can be deprived of costs or be made to pay costs because of bad behaviour. If he wishes, however, he may request costs from the Respondent by costs submissions to be filed within 10 days of the date of this endorsement. If he does, the Respondent shall have ten days to respond to those submissions. If the Respondent only requests costs due to the Applicant’s behaviour, the Applicant shall have 10 days to respond to that request for costs. Costs submissions to be no more than five pages in length not including offers to settle and bills of costs. If no costs are requested by either party, there shall be no order as to costs.

McDermot J.

Released: April 9, 2024

[^1]: C.R. testified that he pleaded guilty because he was tired of fighting the charges and he just wanted to bring matters to a close. He testified that the fact that he pleaded guilty did not mean that he had “committed the crime”. The fact that he agreed under oath with the allegations means, however, that he either lied under oath at the criminal hearing or alternatively committed the crime”. [^2]: R.S.O. 1990, c. C.12 [^3]: There was a significant delay in the investigation between March and June of 2020 because of the onset of the COVID19 pandemic. [^4]: OCL report dated March 1, 2021, Trial Ex. 1, p. 12. These attendance records were corroborated by Trial Ex. 38 which were S.H.R.’s attendance records entered at trial. [^5]: Ibid., p. 12. [^6]: See Trial Ex. 27. [^7]: OCL report dated March 1, 2021, Trial Ex. 1, p. 24 [^8]: Ibid., p. 23. [^9]: These sections came into force on March 1, 2021, well prior to the move to Orillia. [^10]: Text exchange March 23, 2022, Trial Ex. 15. [^11]: Text exchange April 21, 2022, Trial Ex. 16. [^12]: OCL report dated March 1, 2021, Trial Ex. 1, p. 11. [^13]: R.S.C. 1985, c. 3 (2nd Supp.) [^14]: Citations omitted: reference may be had to the reported decision. [^15]: Correspondence from the Women and Children’s Shelter to Public Housing signed by Respondent and dated October 22, 2009, Trial Ex. 29 [^16]: He was unclear in testimony as to when he pleaded guilty. He was charged in October, 2009 and said that he went to court in 2009 or 2010. [^17]: The Respondent Mother gave no evidence of this particular assault during her testimony. The evidence of both A.H.’s sister and her neighbour about her hair being pulled out was based upon statements made by the Respondent Mother to them. That was not a statement against interest. Although not objected to, this was therefore hearsay evidence, and I therefore give this minimal weight. [^18]: Test message exchange dated October 23, 2023, Trial Ex. 21.